ECtHR judge ponders on EU/ECtHR dogfight, and recent trends of timidity in the ECtHR

david_thor_bjorgvinssonA Political Decision Disguised as Legal Argument: Opinion of CJEU 2/13 – and other things

Over the summer an interesting article was published by Graham Butler, on his interview with David Thor Björgvinsson, former Icelandic judge in the European Court of Human Rights – see here.

One subject was the CJEU’s refusal to permit accession by the EU to the ECtHR (see my post here) – despite the EU’s commitment to accede via Article 6 of the Lisbon Treaty, in December 2009. A Draft Agreement on Accession was concluded in April 2013, but it required the obtaining of an opinion from the CJEU on whether the Agreement was compatible with the EU Treaties – to which the CJEU gave a dusty answer in December 2014.

The draft Accession Agreement

The ECtHR has full jurisdiction over all states who are members of the Council of Europe, but not in respect of the EU itself, and, as I previously pointed out here, there are some pretty sensitive Article 6 issues when it comes to look at how the EU Commission comes to handle competition cases and the CJEU looks at its own standing rules. The Accession Agreement sought to resolve this, by giving last word to Strasbourg, but compelling the parties to go to the CJEU first. Details in my previous post, but for various reasons, the CJEU thought that the Agreement was unlawful at EU law.

Judge Björgvinsson (of course from a non-EU country) gave his reaction to the CJEU opinion

From a strictly legal point of view, this is not something you could necessarily have predicted. However, from a political point of view, I was not very surprised.

and

it was actually a political decision disguised in legal argument

He recalled a CJEU judge explaining to an assembled group why the CJEU in Luxembourg did not really need the European Court of Human Rights in Strasbourg, and that when it comes to defining human rights standards within the European Union in the future, the European Court of Human Rights would be marginalised.

He and his interviewer mused on whether the effect of delaying accession might give the opportunity of the CJEU to strengthen its case law on the fundamental rights laid down in the EU Charter (very similar to the ECHR, but developing case law fast at the moment). This in time might lead to a marginalisation of ECtHR case law within the EU.

That of course would not directly affect all the non-EU members of the Council of Europe for whom Strasbourg will still provide the case law. It may be difficult politically to save accession in the short term, and the judge made reference to some resentment shown by those who had thought that the draft Accession Agreement had already made over-many concessions to the EU in its negotiations. As the judge put it, in any further negotiations, such parties might be inclined to say that the EU

“they are just going to have to follow the Strasbourg rules just like anyone else.

So accession, if not dead, will be dormant for some time.

A reaction – rowing back from the Bosphorus?

A closely related topic is how the ECtHR regards human rights compliance by members states when they are following EU law. The classic case on the interrelationship is Bosphorus, which presumes (until the contrary is shown) that EU protection of human rights would be equivalent or comparable to that required by the Convention. Such a presumption can be rebutted if Strasbourg thinks that a particular protection of Convention rights was “manifestly deficient”.

Our Icelandic judge thought that

many judges may be scratching their heads over this presumption idea

as he plainly is (having been critical of it at the time), but he described it as a practical solution to a potential problem. It

was a friendly gesture by the European Court of Human Rights not to confuse things too much…but now after Opinion 2/13, I think many judges…will be concerned about this inclination…Undoubtedly, some judges..will be very tempted to overturn the Bosphorus.

There may not be a “large U-turn”

but there are ways to move back from it.

So watch out when the 19 ECtHR judges from non-EU countries get their teeth into the next Bosphorus type case.

The Registry

The ECtHR like many courts relies upon its Registry which administrates it and its processes. A few reflections from our judge on its role. It has institutional knowledge

not just with regard to practical matters, but also on technical expertise, and even judicial decision-making.

After observing the lack of legitimacy of the individual bureaucrats, he added that they had

spent most of their professional life within the Court with no meaningful legal experience from the home front. Still these professional bureaucrats command huge influence over judicial decision, and in many cases run the whole show.

Interesting to recall that the UK’s current judge in Strasbourg spent some 30 years of his professional life within, er, the Registry.

Assertive/passive?

The next topic (not unconnected with the previous one) was the changes in judicial attitudes since Judge Björgvinsson came to the Strasbourg Court in 2004

He thought, by way of reaction to cases such as the prisoner voting cases, the Court was itself trying to mitigate the effects of adverse criticism. Quoting a recent paper of his own

the biggest change is that the Court is changing its judicial policy from assertively protecting human rights to becoming more timid

And, tellingly, this is about the survival of an institution.

If you believe the institution in an historical context is doing more good than bad, and it is actually contributing to the protection of human rights, then you will take the view that it is better to have it, rather than having all the Member States, particularly larger ones, leaving the system because they cannot live with it. It is not necessarily conscious in the minds of judges, but this is a trend that I believe I saw there. Maybe I am not reading it correctly, but in my opinion, the Court is being less assertive than it has been in the past.

Loss of moral capital?

The judge nicely describes the ECtHr in hearing citizens’ direct complaints as building up a “moral capital” in the minds of the public of Europe.

And he sees one potential outcome of current trends of timidity in the Court as being loss of that moral capital

The danger is that the Court might be withdrawing from the position that it has built for itself. By increasing its reliance on the margin of appreciation and referring more to the democratic process in the Member States, in other words by beginning to try to appease the Court’s most prolific critics, be they political or judicial on a national level, the Court runs the risk of losing its moral capital. This is certainly a dilemma.

Then, courteous as throughout the interview,

Whether the Court is doing the right or wrong thing, it is not for me to say, but this is a trend I experienced myself.

Conclusion

An interesting and subtle response from a non-EU ECtHR judge to some of the political currents swirling around our top European courts. Well worth a read in full – here is the link again.

 My thanks to the author, and to the Utrecht Journal of International and European Law, for permission to reproduce this article 

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