GENERAL DOCTRINE DEVELOPED BY
THE EUROPEAN COURT OF HUMAN RIGHTS*
By Martin Kuijer1
Autonomous concepts
Many of the notions used in the Convention are interpreted by the Court in an autonomous
meaning. Definitions developed in the legal traditions of the various High Contracting
Parties are not decisive for the Court. The Court has always underlined its position that
classification under domestic law may be a relevant factor but not decisive. Two origins for
this emphasis on the autonomy of the Convention concepts might be identified: a lack of
uniformity in the legal traditions of the various states (partly due to the differences between
common law legal systems and civil law legal systems) on the one hand and a fear of
possibly undermining the effectiveness of the protection afforded by the Convention on the
other hand. This can be derived for example from the Öztürk case in which the Court had to
define the concept ‘criminal charge’ used in Article 6 ECHR:
“[…] if the Contracting States were able at their discretion, by classifying
an offence as ‘regulatory’ instead of criminal, to exclude the operation of
the fundamental clauses of Articles 6 and 7, the application of these
provisions would be subordinated to their sovereign will. A latitude
extending thus far might lead to results incompatible with the object and
purpose of the Convention.” 2
Interpretation methods
*
This material was provided by the National Institute of Justice with the author’s approval. It is
included in the current data base in the frames of the project ‘Promoting Efficiency of Bulgarian
Judiciary in the Area of Human Rights Protection’, accomplished by BLHR Foundation from
November 2005 to August 2006. The text is available also in Bulgarian language.
1
Prof. Dr. Martin Kuijer is Professor in human rights law at the Free University of Amsterdam. The
author is head of the human rights department of the Dutch Ministry of Justice and is responsible for
the representation of the Netherlands before the European Court of Human Rights. This article is a
chapter of his doctoral thesis “The Blindfold of Lady Justice - Judicial Independence and Impartiality
in Light of the Requirements of Article 6 ECHR”, Wolf Legal Publishers 2004.
ECHR, 21 February 1984, Öztürk – Germany (Series A-73), § 49.
2
1
The European Convention on Human Rights contains various vague notions. Application of
those vague abstract notions to particular facts of specific complaints requires a great deal
of interpretation by the Court. General guidelines concerning the interpretation of treaties
are laid down in Articles 31-33 of the Vienna Convention on the Law of Treaties. The
Court will make use of those general guidelines3, but the Court has also developed its own
‘culture’ with regard to the interpretation of the autonomous concepts used in the
Convention.4
Clearly the text of the Convention itself is the starting point for any interpretation
issue. The literal interpretation therefore is the most obvious interpretation method,
looking at the ‘ordinary’ meaning of the terms used in the various provisions.5 Sometimes,
an interpretative matter can be solved by comparing both authentic versions of the
Convention (the English and the French texts).6
Equally, the Court on rare occasions uses the so-called systematic interpretation.
The Court tries to specify the meaning of a specific provision by examining its place within
the Convention and its relation to other provisions.7
Another interpretation method that can be discerned in the Court’s case law is the
historical interpretation. The Court interprets the notions of the Convention by examining
the drafting history of the Convention with references to the travaux préparatoires in order
3
See within the context of Article 6: ECHR, 21 February 1975, Golder - United Kingdom (Series A18), § 29. Recently confirmed in ECHR, 4 April 2000, Witold Litwa - Poland (appl. no. 26629/95), §
57.
4
See more generally: R. Bernhardt, “Thoughts on the interpretation of human rights treaties”, in: F.
Matscher & H. Petzold (eds.), Protecting Human Rights: The European Dimension – Essays in
Honour of G.J. Wiarda, Köln: Carl Heymanns Verlag, 1988, pp. 65-71 and F. Matscher, “Methods
of interpretation of the Convention”, in: R.St.J. Macdonald, F. Matscher & H. Petzold (eds.), The
European System for the Protection of Human Rights, Dordrecht: Nijhoff, 1993, pp. 63-81.
5
See for example ECHR, 1 July 1961, Lawless – Ireland (Series A-3), § 28: “Whereas, in the general
context of Article 15 of the Convention, the natural and customary meaning of the words ‘other
public emergency threatening the life of the nation’ is sufficiently clear”.
6
The Court relied heavily on a comparison between both texts when it was faced with the question (in
an English case) whether the right of access to court was implicitly included in the text of Article 6
ECHR: “The clearest indications are to be found in the French text, first sentence. In the field of
‘contestations civiles’ (civil claims) everyone has a right to proceedings instituted by or against him
being conducted in a certain way […] but also and primarily ‘à ce que sa cause soit entendue’ (that
his case be heard)” (see ECHR, 21 February 1975, Golder – United Kingdom (Series A-18), § 32).
7
See for example ECHR, 6 September 1978, Klass – Germany (Series A-28), § 68: “[…] the
Convention must be read as a whole”. Or ECHR, 24 October 1979, Winterwerp – Netherlands
(Series A-33), § 46: “[…] the logic of the system of safeguards established by the Convention sets
limits upon the scope of this review [by the ECHR, MK]”.
2
to establish the original intention of the drafters of the Convention.8 As an example, one
may refer to the Maaouia judgment, in which the Court gave a narrow interpretation of
Article 6 ECHR in light of the drafting history of the 7th Protocol to the Convention.9 In
practice, however, the importance of the drafting history of the Convention is weak.
The most important interpretation method of the Court is the teleological
interpretation of the Convention.10 The Court will interpret the Convention in the light of
the aim and purpose of the Convention: to offer “real and effective” safeguards for
individuals.11 The teleological interpretation method is particularly suitable for giving a
broad interpretation to the notions in the Convention. One of the clearest examples of this
can be found in the Airey - Ireland case dealing with the question whether the right of free
legal aid should be accepted under certain circumstances in civil proceedings. The right of
legal aid is guaranteed in Article 6 para. 3 sub c ECHR as far as criminal proceedings are
concerned. But the issue of affording legal aid in civil matters was deliberately left out of
the Convention during the drafting process. Moreover, when ratifying the Convention the
Irish government made the following declaration:
“The Government of Ireland hereby confirm and ratify the aforesaid
Convention and undertake faithfully to perform and carry out all the
stipulations therein contained, subject to the reservation that they do not
interpret Article 6 para. 3 (c) of the Convention as requiring the provision
of free legal assistance to any wider extent than is now provided in
Ireland.”
The Court, however, emphasised in its judgment that the “Convention is intended to
guarantee not rights that are theoretical or illusory but rights that are practical and
8
For example with regard to the question whether a right of equal access to public service is protected
by Article 10 ECHR, the Court underlines that “the signatory States deliberately did not include such
a right: the drafting history of Protocols Nos. 4 and 7 shows this unequivocally” (see ECHR, 28
August 1986, Glasenapp – Germany (Series A-104), § 48).
9
ECHR, 5 October 2000, Maaouia – France (appl. no. 39652/98), § 36.
10
For example ECHR, 23 March 1995, Loizidou – Turkey (preliminary objections) (Series A-310), §
72: “[…] the object and purpose of the Convention as an instrument for the protection of individual
human beings requires that its provisions be interpreted and applied so as to make its safeguards
practical and effective”.
11
The Court has adopted a doctrine of effet utile (see, for example, ECHR, 6 February 2003,
Mamatkulov – Turkey (appl. no. 46827/99), § 109: “The Court reiterates in that connection that the
provisions of treaties must be interpreted in good faith in the light of the object and purpose of the
treaty and in accordance with the principle of effectiveness”).
3
effective”.12 The Court then reached the conclusion that the right of access to court would
not be effective if in certain special cases free legal aid was not provided for, regardless of
the civil nature of the national proceedings.
Evolutive character of the Convention
As early as 1978 did the Court underline the fact that it should not overlook the changes
and developments that had occurred since the drafting of the Convention: “[…] the
Convention is a living instrument which […] must be interpreted in the light of present-day
conditions”.13 The Court cannot ignore that science has progressed and that moral opinion
in society, attitudes and technological possibilities have changed substantially since the
1950’s. Or as former President Ryssdal put it: “Democratic society and its underlying
values move on, and so, accordingly, should the Convention if it is not to lose contact with
the forces that invest it with legitimacy”.14 The evolutive interpretation method has become
more and more important after ‘more than forty years’ after the original drafting process. 15
A rather bold passage from the Loizidou judgment states:
“That the Convention is a living instrument which must be interpreted in
the light of present-day conditions is firmly rooted in the Court’s case-law
[…] Such an approach, in the Court’s view, is not confined to the
substantive provisions of the Convention, but also applies to those
provisions […] which govern the operation of the Court’s enforcement
machinery. It follows that these provisions cannot be interpreted solely in
accordance with the intentions of their authors as expressed more than
12
ECHR, 9 October 1979, Airey – Ireland (Series A-32), § 24.
13
ECHR, 6 September 1978, Tyrer – United Kingdom (Series A-26), § 31.
14
R. Ryssdal, “Rudolf Bernhardt at the European Court of Human Rights”, in: U. Beyerlin a.o. (eds.),
Recht zwishen Umbruch und Bewahrung (Festschrift für Rudolf Bernhardt), Berlin: Springer, 1995,
p. 2. See also: F.G. Jacobs, The European Convention on Human Rights, Oxford: Clarendon Press,
1975, pp. 17-19.
15
See: S.C. Prebensen, “Evolutive interpretation of the European Convention on Human Rights”, in: P.
Mahoney, F. Matscher, H. Petzold & L. Wildhaber (eds.), Protecting Human Rights: The European
Perspective – Studies in memory of Rolv Ryssdal, Köln: Carl Heymanns Verlag, 2000, pp. 11231138.
4
forty years ago […] at a time when a minority of the present Contracting
Parties adopted the Convention.” 16
The ‘living instrument’ doctrine, or the sociological method 17, indicates the ultimate
freedom of the Court to autonomously interpret the Convention. Secondly, it indicates the
diminished role of the travaux préparatoires when interpreting the Convention.18 This
might be explained by the gradual strengthening of the position of the Court. As acceptance
of the Court by the state authorities was secured and the authority of the Court had been
established, the Court could become more critical. A situation that had to be accepted in the
early days of the Convention, became unacceptable in more recent times. This development
was supported by a growing importance of human rights law in Europe generally.19
A closely related doctrine is the so-called ‘consensus principle’.20 Evolution of the
Court’s case-law can also be achieved by analysing state practice. An overall progression in
law and practice in Europe may lead the Court to the conclusion that the unchanged
legislation in a “remaining” State has come to be in violation of the Convention.21 The
‘consensus principle’ has been primarily important in the Court’s case-law concerning the
interpretation of Article 8 ECHR, dealing with changing perceptions in morality.22
16
ECHR, 23 March 1995, Loizidou – Turkey (preliminary objections) (Series A-310), § 71 and ECHR,
12 December 2001, Bankovic a.o. - 17 European member States of NATO (appl. no. 52207/99), § 64.
17
See M. de Blois, “The Fundamental Freedom of the European Court”, in: R.A. Lawson & M. de
Blois (eds.), The Dynamics of the Protection of Human Rights in Europe – Essays in Honour of
Henry G. Schermers, The Hague: Martinus Nijhoff, 1994, p. 57.
18
See R.A. Lawson, “Adieu les travaux! Het afgenomen belang van de travaux préparatoires voor de
uitleg van het EVRM”, in: NJCM-Bulletin 1996, pp. 61-74. See for an example of the remaining
importance of the travaux: ECHR, 4 April 2000, Witold Litwa – Poland (appl. no. 26629/95).
19
See R.A. Lawson & H.G. Schermers, Leading Cases of the European Court of Human Rights,
Nijmegen: Ars Aequi Libri, 1999, p. 426, n. 11.
20
See A.W. Heringa, "The 'Consensus Principle' - The role of 'common law' in the ECHR case law",
in: Maastricht Journal 1996, pp. 108-145.
21
Although the Court made it clear that the fact that, at the end of a gradual evolution, a country finds
itself in an isolated position as regards one aspect of its legislation does not necessarily imply that
that aspect breaches the Convention (see ECHR, 18 December 1987, F. – Switzerland (Series A128), § 33).
22
For example, in cases concerning homosexuality. In some of the early decisions of the Commission,
High Contracting Parties were still allowed to punish homosexuality (see EComHR, 17 December
1955, X. - Germany (appl. no. 104/55; Yearbook of the ECHR Vol. I, p. 228) and H.G. Schermers,
"Acceptance of International Supervision of Human Rights", in: Leiden Journal of International Law
1999, p. 826). The Court overturned this position many years later in view of the moral convictions
that had developed in many countries of the Council of Europe: “As compared with the era when the
legislation was enacted, there is now a better understanding, and in consequence an increased
tolerance, of homosexual behaviour to the extent that in the great majority of the member States of
5
Margin of appreciation
The ‘margin of appreciation’ doctrine underlines the subsidiary nature of the Strasbourg
mechanism. The European Court leaves a certain discretion to the national authorities when
responding to the needs of their society. It is for the national authorities to make the initial
assessment whether a particular interference with a Convention right is necessary.
Consequently, the Court leaves to the Contracting States a margin of appreciation, both to
the domestic legislator as to the bodies, judicial amongst others, that are called upon to
interpret and apply the laws in force. Nevertheless, the European Court does not give the
Contracting States an unlimited power of appreciation. The domestic margin of
appreciation goes hand in hand with a European supervision.23 The rationale for the
‘margin of appreciation’ doctrine is comparable to that of the 'subsidiarity' doctrine in EC
law. The development of both doctrines has been somewhat analogous. There are several
reasons for the existence of the 'margin of appreciation' doctrine. In the first place, national
authorities ought to be given a certain discretion in view of the subsidiary nature of the
Convention mechanism. The task of securing the rights and freedoms of the Convention is
in the first place left to each Contracting State. The role of the European institutions is
providing for a ‘safety net’. The second raison d’être is of a more practical nature. By
reason of their direct and continuous contact with the vital forces of their countries, State
authorities are in principle in a better position than the international judge to give an
opinion on all the factual circumstances of each case. The doctrine is therefore particularly
the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual
practices of the kind now in question as in themselves a matter to which the sanctions of the criminal
law should be applied; the Court cannot overlook the marked changes which have occurred in this
regard in the domestic law of the member States (ECHR, 22 October 1981, Dudgeon – United
Kingdom (Series A-45), § 60).
Or in cases concerning transsexualism: “The Court considers that it is undeniable that attitudes have
changed, science has progressed and increasing importance is attached to the problem of
transsexualism”. However, application of the consensus principle lead the Court to the conclusion
that it was not as of yet persuaded that there existed a “sufficiently broad consensus between the
member States of the Council of Europe” to depart from earlier case-law (see ECHR, 25 March
1992, B. – France (Series A-232-C), § 48).
23
The Court elaborately introduced the ‘margin of appreciation’ doctrine in: ECHR, 12 December
1976, Handyside – United Kingdom (Series A-24), §§ 48-49. See also: R.St.J. Macdonald, “The
Margin of Appreciation”, in: R.St.J. Macdonald, F. Matscher & H. Petzold (eds.), The European
System for the Protection of Human Rights, Dordrecht: Nijhoff, 1993, pp. 83-124; Lord Mackay of
Clashfern, “The Margin of Appreciation and the need for balance”, in: P. Mahoney, F. Matscher, H.
Petzold & L. Wildhaber (eds.), Protecting Human Rights: The European Perspective – Studies in
memory of Rolv Ryssdal, Köln: Carl Heymanns Verlag, 2000, pp. 837-844.
6
important in the field of morals and in case there is no common practice in the various
Contracting States. Likewise, the margin of appreciation afforded to national authorities
will be particularly wide when the issues involve an assessment of the priorities in the
context of the allocation of limited State resources.24 Thirdly, it is safe to say that the
‘margin of appreciation’ doctrine is a policy instrument of the European Court that can be
used to deal with the flood of complaints. The more margin of appreciation is left to the
national authorities the less active the role of the European Court needs to be.
The doctrine is also (rightly) criticised by some commentators: “if the Court gives as its
reason for not intervening simply that the decision is within the margin of appreciation of
the national authorities, it is really providing no reason at all but merely expressing its
conclusion not to intervene, leaving observers to guess the real reasons which it failed to
articulate” 25. The margin of appreciation should not permit the Court’s evasion of its
responsibility to articulate the reasons why its intervention in particular cases may or may
not be appropriate.26 However, this criticism is not so much directed against the concept of
subsidiarity as such, but more against poor motivation of the Court’s judgments.
Proportionality
The Court will examine whether the national authorities achieved a proper balance between
the interests involved, i.e. the interest of the individual versus the interest of society in
general.27 The principle of proportionality has an impact on the whole Convention
mechanism. In its Soering judgment, the Court stated that the principle of proportionality is
one of the underlying principles of the Convention mechanism:
“[…] inherent in the whole of the Convention is a search for a fair balance
between the demands of the general interest of the community and the
requirements of the protection of the individual’s fundamental rights.” 28
24
ECHR (dec.), 8 July 2003, Sentges – Netherlands (appl. no. 27677/02).
25
R.St.J. Macdonald, “The Margin of Appreciation”, in: R.St.J. Macdonald, F. Matscher & H. Petzold
(eds.), The European System for the Protection of Human Rights, Dordrecht: Nijhoff, 1993, p. 85.
26
Ibid., p. 124.
27
See, for example, ECHR, 21 June 1988, Berrehab – Netherlands (Series A-138), § 29.
28
ECHR, 7 July 1989, Soering – United Kingdom (Series A-161), § 89. In earlier case-law the Court
formulated the fair balance test slightly different: “[t]he Convention implies a just balance between
the protection of the general interest of the community and respect due to fundamental human rights
7
Subsidiarity
‘Subsidiarity’ can have various meanings. Sometimes it reflects an obligation on the state
authorities to choose the least intrusive measures in case the authorities have to interfere
with fundamental rights of citizens. As a result of this subsidiarity principle States can be
required to investigate how they can minimise interferences with human rights and to
conduct a ‘human rights effects report’ on the national level. This was made explicit in the
Hatton case, in which the applicants alleged a violation of Article 8 by virtue of the
increase in the level of noise caused at their homes by aircrafts using Heathrow airport at
night:
“ […]
97. The Court would, however, underline that in striking the required
balance, States must have regard to the whole range of material
considerations. Further, in the particularly sensitive field of environmental
protection, mere reference to the economic well-being of the country is not
sufficient to outweigh the rights of others. The Court recalls that in the
above-mentioned Lopez Ostra v. Spain case, and notwithstanding the
undoubted economic interest for the national economy of the tanneries
concerned, the Court looked in considerable detail at “whether the national
authorities took the measures necessary for protecting the applicant’s right to
respect for her home and for her private and family life ...” (judgment of 9
December 1994, p. 55, § 55). It considers that States are required to
minimise, as far as possible, the interference with these rights, by trying to
find alternative solutions and by generally seeking to achieve their aims in
the least onerous way as regards human rights. In order to do that, a proper
and complete investigation and study with the aim of finding the best
possible solution which will, in reality, strike the right balance should
precede the relevant project.” 29
while attaching particular importance to the latter [emphasis added, MK]”, see ECHR, 23 July 1968,
Belgian languages case (merits) (Series A-6), § 5. See also: S. van Drooghenbroeck, La
proportionnalité dans le droit de la convention européenne des droits de l'homme, Bruxelles:
Bruylant, 2001.
29
ECHR, 2 October 2001, Hatton – United Kingdom (appl. no. 36022/97), § 97.
8
On the basis of the particular facts of the case the Chamber of the Court was not convinced
that the national authorities had in fact assessed the contribution of night flights to the
national economy or the impact of the increased night flights on the applicants critically.
The case was subsequently brought before the Grand Chamber of the Court. The Grand
Chamber disagreed with the assessment of the Chamber that the surveys conducted by the
British authorities had been insufficient, but did not set aside the need for a ‘human rights
effects report’ as such.30
The notion ‘subsidiarity’ can also refer to the primary role of the national authorities,
compared to the subsequent role for the Strasbourg Court. This latter concept of
subsidiarity is laid down in every aspect of the Strasbourg system as we have seen several
times.31 Before being able to bring a case before the European Court one has to exhaust all
domestic remedies (Article 35 ECHR) because the respondent State “must first have an
opportunity to redress the situation complained of by its own means and within the
framework of its own domestic legal system”.32 The national authorities bear the primary
responsibility to ensure the rights and freedoms of the Convention. This principle is also
enshrined in Article 13 ECHR33 and has been reiterated in several policy-related
documents, such as the 2003 report by the Steering Committee for Human Rights
containing proposals for guaranteeing the long-term effectiveness of the Court.34 It has also
been emphasised in the case-law of the Court. In one of its earliest judgments the Court has
stated that the machinery of protection established by the Convention is subsidiary to the
30
ECHR [GC], 8 July 2003, Hatton – United Kingdom.
31
Cf. M. de Salvia, “Contôle européen et principe de subsidiarité: faut-il encore (et toujours) émarger à
la marge d’appréciation?”, in: P. Mahoney, F. Matscher, H. Petzold & L. Wildhaber (eds.),
Protecting Human Rights: The European Perspective – Studies in memory of Rolv Ryssdal, Köln:
Carl Heymanns Verlag, 2000, pp. 373-386.
32
EComHR, Fifty-seven inhabitants of Louvain – Belgium (appl. no. 1994/63; Yearbook of the ECHR
1964, p. 252). See also: ECHR, 18 June 1971, De Wilde, Ooms and Versyp – Belgium (Series A-12),
§ 50 (the ‘exhaustion of domestic remedies’ rule “dispenses States from answering before an
international body for their acts before they have had an opportunity to put matters right through
their own legal system”). And more recently: ECHR, 15 November 1996, Ahmet Sadik – Greece
(Reports 1996, 1638), § 30.
33
See, for example, ECHR, 26 October 2000, Kudla – Poland (appl. no. 30210/96), § 157: “As the
Court has held on many occasions, Article 13 of the Convention guarantees the availability at
national level of a remedy to enforce the substance of the Convention rights and freedoms in
whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is
thus to require the provision of a domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief”.
34
CDDH (2003) 006 Final, § 3.
9
national systems safeguarding human rights.35 The ‘margin of appreciation’ doctrine is one
of the most obvious manifestations of this subsidiary nature of the Convention mechanism.
The primary responsibility for national authorities to effectively deal with human rights
violations is also emphasised in the Court’s case-law concerning the ‘procedural’
obligations under Article 2, 3, 5 and 8 ECHR, so far as the Court imposes an obligation on
States to carry out a thorough and effective investigation.36
Positive obligations
Traditional human rights law focuses on ordering States to abstain from interfering with
certain fundamental rights: the State shall not intrude in ones privacy, the State shall not
treat a person in an inhuman manner, the State shall not interfere with your freedom of
expression, et cetera. This ‘negative’ perception of human rights law was originally also
the basis for the Convention mechanism. The drafting committee of the Convention
“agreed without difficulty that the collective enforcement should extend solely to rights and
freedoms which imposed on the States only obligations ‘not to do things’ […]”. 37 This
perception of human rights law gradually changed. The realisation that human rights can
only be effectively protected in case the State is sometimes obliged to act (instead of
abstaining from acting) leads to an increasing acknowledgement of the doctrine of positive
obligations under the Convention.38 The Convention will be breached if the State concerned
has failed to act. The Court has on several occasions held that the word ‘secure’ as used in
Article 1 ECHR not only implies an obligation for State authorities to abstain from
interferences. In addition, the Convention may impose positive obligations. The concept of
positive obligations was introduced in the Court’s case-law in the Marckx judgment in 1979
dealing with an alleged violation of Article 8 ECHR:
35
ECHR, 23 July 1968, Belgian Linguistic (Series A-6), § 10.
36
See for example, ECHR, 10 May 2001, Z. a.o. – United Kingdom (appl. no. 29392/95), § 108.
37
P.H. Teitgen, “Introduction to the European Convention on Human Rights”, in: R.St.J. Macdonald,
F. Matscher & H. Petzold (eds.), The European System for the Protection of Human Rights,
Dordrecht: Nijhoff, 1993, pp. 3-14.
38
The notion of positive and negative obligations for State authorities flowing from a Convention
provision should not be confused with the notion of positive and negative elements of a Convention
right. The latter notion refers to the scope of the substance of the Convention right; the freedom to
join a trade union for example also encompasses the right not to join a trade union (see ECHR, 13
August 1981, Young, James & Webster – United Kingdom (Series A-44), §§ 51-57). The concept of
positive obligations refers to the consequences which arise for the State from a Convention right.
10
“[…] it does not merely compel the State to abstain from such
interference; in addition to this primarily negative undertaking, there may
be positive obligations inherent in an effective ‘respect’ for family life.” 39
In those early days the Court was fearful of a strong negative reaction from the High
Contracting Parties, protesting against such a widening of the concept of state responsibility
under the Convention. The Court tried to ‘soothe’ the High Contracting Parties by
introducing a ‘fair balance test’ (instead of a so-called ‘necessity’ test) and accepting a
wider margin of appreciation when dealing with positive obligations. There seems to be a
tendency in more recent case-law however to limit the importance of the distinction
between positive obligations and interferences, which results in less importance being given
to the margin of appreciation doctrine in case of positive obligations.40 Broadly speaking
one can distinguish four separate categories of positive obligations in the Court’s case-law:
'Type A'
legislation;
'Type B'
'Type C'
'Type D'
the obligation to change a law or administrative practice or to make new
the obligation to provide financial assistance;
the obligation to carry out an effective, immediate and independent
investigation into an alleged breach of a Convention right; and
the obligation to intervene in the relationship between individuals in order to
prevent ‘private’ violations of rights protected by the Convention. 41 This
latter category of cases will be discussed more elaborately in *** paragraph
8***.
Positive obligations have been identified in several cases. Most of them involve the right to
respect for family life and private life, as laid down in Article 8 ECHR. But gradually
positive obligations have been accepted with regard to most Convention rights and the
doctrine of positive obligations continues to grow in importance.42
39
ECHR, 13 June 1979, Marckx – Belgium (Series A-31), § 31.
40
See R.A. Lawson, “Positieve verplichtingen onder het EVRM: opkomst en ondergang van de ‘fair
balance’-test”, in: NJCM-Bulletin 1995, pp. 558-573 and 727-750.
41
See R.A. Lawson & H.G. Schermers, Leading cases of the European Court of Human Rights,
Nijmegen: Ars Aequi Libri, 1999, p. 82, n. 18.
42
See for an elaborate discussion of the concept of positive obligations: S.H.E.M. Wijte, The Concept
of Positive Obligations in the Case-law of the European Court of Human Rights (thesis University of
Utrecht), forthcoming.
11
Horizontal effect
The Convention is a ‘classic’ treaty under public international law in that it is addressed
solely to States. Traditional international human rights law is concerned with the
application of fundamental rights in ‘vertical’ relationships, i.e. between the State
authorities and the individual (or group of individuals or a legal person). The Court has
accordingly ruled that the application of human rights in the sphere of the relations of
individuals between themselves “is in principle a matter that falls within the Contracting
States’ margin of appreciation”.43 However, gradually the view was accepted that an
effective protection of the Convention rights can sometimes only be achieved by accepting
some sort of horizontal effect of the Convention. The State is no longer the sole powerful
actor in modern society. Private institutions as well as other individuals can equally be a
real threat to the respect of human rights. On occasion the Court has therefore accepted
indirect horizontal effect. On the basis of Article 34 ECHR, the Court may only receive
applications from persons claiming to be the victim of a violation “by one of the High
Contracting Parties”. An application can only succeed if a certain conduct can be attributed
to the state authorities. Only then will the Court check the compatibity of this 'act of State'
with the requirements of the Convention. State responsibility for violations of Convention
rights in horizontal relationships can therefore only be construed by using a ‘type D’
positive obligation (see above): the State had an obligation to intervene in the relationship
between individuals in order to prevent ‘private’ violations of rights protected by the
Convention. The Court will usually refer in such cases to the general obligation for the
High Contracting Parties as formulated in Article 1 ECHR to “secure” the Convention
rights to everyone within their jurisdiction.44 This does not mean however that States are
often criticised by the Court for violations in horizontal relationships. Furthermore, where a
43
ECHR, 26 March 1985, X & Y – Netherlands (Series A-91), § 24.
44
For example in cases dealing with corporal punishment inflicted by private individuals and the
question whether such corporal punishment can be classified as ill-treatment in the sense of Article 3
ECHR. See, for example, ECHR, 23 September 1998, A. – United Kingdom (Reports 1998, 2692), §
22: "The Court considers that the obligation on the High Contracting Parties under Article 1 of the
Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the
Convention, taken together with Article 3, requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or
punishment, including such ill-treatment administered by private individuals [...]".
12
case essentially concerns horizontal relationships, the Court will generally take a restrictive
stand and allow the national authorities a wide margin of appreciation.45
Human rights in the wider concept of democracy
Some of the foundations on which the Convention is based are laid down in the Preamble
to the Convention. In the Preamble the High Contracting Parties reaffirm “their profound
belief in those fundamental freedoms which are the foundation of justice and peace in the
world and are best maintained on the one hand by an effective political democracy
[emphasis added, MK] and on the other by a common understanding and observance of the
human rights upon which they depend”. The fact that the wider concept of democracy is a
cornerstone when interpreting the Convention has also been reiterated by the Court: the
interpretation of any Convention right has to be consistent with “the general spirit of the
Convention, an instrument designed to maintain and promote the ideals and values of a
democratic society”.46 This pivotal role is further underlined by the Court in its judgment in
the United Communist Party of Turkey case:
“Democracy is without a doubt a fundamental feature of the European
public order […] Democracy thus appears to be the only political model
contemplated by the Convention and, accordingly, the only one
compatible with it.” 47
Democracy is characterised by the Court as “pluralism, tolerance and broadmindedness”.48
The Court elaborated in the Young, James and Webster case: “Although individual interests
must on occasion be subordinated to those of a group, democracy does not simply mean
that the views of a majority must always prevail: a balance must be achieved which ensures
the fair and proper treatment of minorities and avoids any abuse of a dominant position”.49
45
See, for example, ECHR, 29 April 1999, Chassagnou a.o. – France (appl. no. 25088/94 a.o.), § 113:
“The balancing of individual interests that may well be contradictory is a difficult matter, and
Contracting States must have a broad margin of appreciation in this respect”.
46
ECHR, 7 December 1976, Kjeldsen, Busk Madsen and Petersen – Denmark (Series A-23), § 53.
47
ECHR, 30 January 1998, United Communist Party of Turkey – Turkey (Reports 1998, 1), § 45. See
also: ECHR, 13 February 2003, Refah Partisi – Turkey (appl. no. 41340/98).
48
ECHR, 12 December 1976, Handyside – United Kingdom (Series A-24), § 49.
49
ECHR, 13 August 1981, Young, James and Webster – United Kingdom (Series A-44), § 63.
13
And in its Refah Partisi judgment50 the Court stressed the link between democracy and the
Rule of Law and the need for an independent judiciary:
" […]
43. The European Convention on Human Rights must be understood and
interpreted as a whole. Human rights form an integrated system for the
protection of human dignity; in that connection, democracy and the rule of
law have a key role to play. Democracy requires that the people should be
given a role. Only institutions created by and for the people may be vested
with the powers and authority of the State; statute law must be interpreted
and applied by an independent judicial power. There can be no democracy
where the people of a State, even by a majority decision, waive their
legislative and judicial powers in favour of an entity which is not
responsible to the people it governs, whether it is secular or religious.
[…] "
The very essence of democracy can be endangered by terrorism and organised crime. In
general the Court is prepared to accept the legitimate need of the fight against crime and
terrorism:
“[…] for the purpose of interpreting and applying the relevant provisions
of the Convention, due account will be taken of the special nature of
terrorist crime, the threat it poses to democratic society and the exigencies
of dealing with it.” 51
This means that the Court will accept effective measures taken by the State authorities
against terrorism and crime. However, these measures need to be accompanied by adequate
safeguards against abuse.52 In my opinion, the emphasis in the Court’s case-law is put on
the latter element. This was also the case in the Kostovski judgement:
“Although the growth in organised crime doubtless demands the
introduction of appropriate measures, the Government’s submissions
appear to the Court to lay insufficient weight on what the applicant’s
50
ECHR, 31 July 2001, Refah Partisi (Prosperity Party) a.o. – Turkey (appl. no. 41340/98), § 43.
51
ECHR, 28 October 1994, Murray – United Kingdom (Series A-300-A), § 47.
52
Ibidem, § 58.
14
counsel described as ‘the interest of everybody in a civilised society in a
controllable and fair judicial procedure’.” 53
Force majeure under the Convention
Especially within the framework of Article 6 ECHR national authorities frequently invoke
exceptional circumstances to justify potential breaches. States try to argue that they were
confronted with force majeure. Two types of cases can be distinguished in the Strasbourg
case-law: excessive workload and transitional problems.
Countries have often tried to convince the European Court that a violation of the
right to be tried within a reasonable time is due to the excessive workload of domestic
courts. In the fight against the ‘Italian length’ cases the European Court has taken a clear
standpoint vis-à-vis this argument: “[…] Article 6 § 1 imposes on the Contracting States
the duty to organise their judicial systems in such a way that their courts can meet each of
its requirements”.54 Temporary emergency measures to deal with a backlog will not be
acceptable to the Court for a longer period of time. In the case of Zimmermann & Steiner
the domestic court tried to prevent violations of the ‘reasonable time’ requirement by
dealing with urgent cases first. The Court however stated that
“if a state of affairs of this kind is prolonged and becomes a matter of
structural organisation, such methods are no longer sufficient and the State
will not be able to postpone further the adoption of effective measures.” 55
Likewise, States have on occasion invoked transitional problems within their societies that
caused delays in administering justice. The Court’s position with regard to this more
political argument is not so clear and firm. The basic rule still seems to be that the
European Court is not easily impressed when faced with arguments of this kind of force
majeure.
In the Guincho case, the Portuguese government stressed the fact that the legal
system at the time (mid 1970’s) had to operate under exceptional circumstances: democracy
had just been restored, the domestic courts had to reorganise and the country was faced
with a serious economic recession. The Court ruled on the one hand that “a temporary
53
ECHR, 20 November 1989, Kostovski – Netherlands (Series A-166), § 44.
54
See for example ECHR, 26 February 1993, Salesi – Italy (Series A-257-E), § 24.
55
ECHR, 13 July 1983, Zimmermann & Steiner – Switzerland (Series A-66), § 29.
15
backlog of court business does not engage the international responsibility of the State
concerned under the Convention provided that the State takes effective remedial action with
the requisite promptness”. But then the Court took a strict standpoint with regard to the
interpretation of this criterion and concluded that the Portuguese measures were “evidently
insufficient and belated”.56 It unanimously held that Article 6 had been violated. This strict
approach can also be seen in case the Court has to deal with Eastern European authorities
that invoke transitional problems. The Podbielsky case can serve as an example:
“The Court observes […] that the delay in the delivery of a final decision
on the applicant’s action has been caused to a large extent by the
legislative changes resulting from the requirements of the transition from a
state-controlled to a free-market system […] The Court recalls in this
respect that Article 6 § 1 imposes on Contracting States the duty to
organise their judicial systems in such a way that their courts can meet
each of its requirements […] Therefore the delay in the proceedings must
be mainly attributed to the national authorities.” 57
Once again, the Court unanimously concluded that there was a breach of the Convention.
However, there have been a few cases in which the Court has adopted a more
flexible approach. In the Süβmann case the Court had to rule on a complaint concerning the
length of a procedure before the German Bundesverfassungsgericht. Süβmann filed a
constitutional appeal at the time of the German reunification. Under the specific
circumstances the Court ruled that
“bearing in mind the unique political context of German reunification and
the serious social implications of the disputes which concerned
termination of employment contracts, the Federal Constitutional Court
was entitled to decide that it should give priority to those cases.”
However, it is safe to assume that the Court’s decision was influenced by the fact that the
complaint concerned a constitutional court with its specific role in the national legal order:
56
ECHR, 10 July 1984, Guincho – Portugal (Series A-81), § 40.
57
ECHR, 30 October 1998, Podbielsky – Poland (Reports 1998, 3387), § 38. This strict application of
the Convention in cases against ‘new’ Contracting Parties can be seen in several cases: ECHR, 22
May 1998, Vasilescu – Romania (Reports 1998, 1064), ECHR, 28 October 1998, Assenov – Bulgaria
(Reports 1998, 3264) and ECHR, 28 October 1999, Brumarescu – Romania (appl. no. 28342/95).
16
“[…] the role as guardian of the Constitution makes it particularly
necessary for a Constitutional Court sometimes to take into account other
considerations than the mere chronological order in which cases are
entered on the list, such as the nature of the case and its importance in
political and social terms.” 58
The other case in which the Court adopted a potentially more flexible approach was in
reaction to transitional problems encountered in Slovenia.
It is rather unsatisfactory that the Court’s position with regard to force majeure lacks the
necessary clarity. In general, however, it seems that the Court will not easily endorse a
government’s plea of force majeure.
Court’s review “in concreto”
The Court has emphasised again and again that in response to an individual complaint the
review by the Court is one in concreto. In principle, the standpoint of the Court is that it is not
its task to pass a generally phrased (abstract) judgment on the state of national legislation.59
In the Young, James & Webster case the applicants were required to join one of the trade
unions, following a so-called 'closed-shop agreement'. The Court emphasised that:
"[...] in proceedings originating in an individual application, it has, without
losing sight of the general context, to confine its attention as far as possible
to the issues raised by the concrete case before it [...] Accordingly, in the
present case, it is not called upon to review the closed shop system as such
in relation to the Convention or to express an opinion on every consequence
or form of compulsion which it may engender; it will limit its examination
to the effects of that system on the applicants." 60
58
ECHR, 16 September 1996, Süβmann – Germany (Reports 1996, 1158), § 56 and § 60.
59
See about this doctrine J.G.C. Schokkenbroek, Toetsing aan de vrijheidsrechten van het Europese
Verdrag tot bescherming van de Rechten van de Mens en de fundamentele vrijheden (thesis Leiden
University), Zwolle: Tjeenk Willink, 1996, pp. 213-216 and Y.S. Klerk, Het ECRMtoezichtsmechanisme: verleden, heden, toekomst, Nijmegen: Ars Aequi Libri, 1995, pp. 215-231.
60
ECHR, 13 August 1981, Young, James & Webster - United Kingdom (Series A-44), § 53.
17
This in concreto approach is in line with the ‘victim’-requirement. An individual applicant
only has ius standi before the Court in case he or she can claim to be a victim:
"[the right of individual petition, MK] does not institute for individuals a
kind of actio popularis for the interpretation of the Convention; it does not
permit individuals to complain against a law in abstracto, simply because
they feel that it contravenes the Convention. In principle, it does not suffice
for an individual applicant to claim that the mere existence of a law violates
his rights under the Convention; it is necessary that the law should have
been applied to his detriment." 61
There is one exception in the Court's case law. In extreme situations the Court has the
possibility to declare that there is a practice that is incompatible with the Convention. In its
fight against Italian 'length of proceedings' cases the Court found that there existed a
general situation in Italy that was incompatible with Article 6 ECHR:
“The frequency with which violations are found shows that there is an
accumulation of identical breaches which are sufficiently numerous to
amount not merely to isolated incidents […] This accumulation of
breaches accordingly constitutes a practice that is incompatible with the
Convention.” 62
However, the Court is only willing to give such an abstract ruling in these extraordinary
circumstances. Normally, the Court will follow its in concreto approach.
When discussing the fight against the overwhelming workload of the Court, I already
mentioned that it is advisable in my opinion for the Court to formulate applicable standards
in more general terms. Judge Martens argued already in 1995 that the Court should not be
so hesitant to give more abstract rulings:
"No provision of the Convention compels the Court to decide on a strict
case-by-case basis. This self-imposed restriction may have been a wise
policy when the Court began its career, but it is no longer appropriate. A
case-law that is developed on a strict case-by-case basis necessarily leads
61
ECHR, 6 September 1978, Klass - Germany (Series A-28), § 33.
62
ECHR, 28 July 1999, Ferrari – Italy (appl. no. 33440/96), §21. See also: R.A. Lawson,
“Systematische schending van artikel 6 EVRM: Italië de wacht aangezegd”, in: NJCM-Bulletin
1999, pp. 975-984.
18
to uncertainty as to both the exact purport of each judgment and the
precise contents of the Court's doctrine [...] [N]ational authorities are
obliged to seek guidance in its case-law. It is thus duty bound to see to it
that this case-law meets the very same standards of clarity, precision and
foreseeability by which the Court usually measures laws of member States
in the field of fundamental rights and freedoms." 63
These arguments are probably even more persuasive today. If a judgment of the Court is
too much focused on the specific facts of a concrete case, subsequent applications
concerning similar constructions will necessarily follow. Parties will bring more similar
complaints to the Court because the exact scope of the Convention rights remains unclear.
A positive trend is that the Strasbourg Court has started to structure its judgments in
a different manner. When assessing the merits of the case, the Court will first state the
general principles applicable before turning its attention to the application of those
principles to the specific case. In the recent Karner judgment the Court explicitly stressed
the Court’s task to elucidate and develop the general standards of protection under the
Convention:
“Although the primary purpose of the Convention system is to provide
individual relief, its mission is also to determine issues on public-policy
grounds in the common interest, thereby raising the general standards of
protection of human rights and extending human-rights jurisprudence
throughout the community of Convention States” 64
Equally interesting is the Court’s decision in the Sentges case, indicating a more cautious
judicial policy by the Court. Despite the ‘in concreto’ doctrine, the Court acknowledges
that its judgments establish a precedent valid for all Contracting States:
“[…] the Court should also be mindful of the fact that, while it will apply
the Convention to the concrete facts of [the] particular case in accordance
with Article 34, a decision issued in an individual case will nevertheless at
least to some extent establish a precedent […], valid for all Contracting
States.” 65
63
ECHR, 26 April 1995, Fischer - Austria (Series A-312), Dissenting Opinion of Judge Martens, § 16.
64
ECHR, 24 July 2003, Karner – Austria (appl. no. 40016/98), § 26.
65
ECHR (dec.), 8 July 2003, Sentges – Netherlands (appl. no. 27677/02).
19
Perhaps the Court is more willing to accept that the ‘in concreto’ doctrine needs to be
reassessed. This trend can also be discerned in the debate on guaranteeing the long-term
effectiveness of the Court. The Human Rights Commissioner has proposed the introduction
of a new Article 33 bis ECHR regulating the power of the Commissioner to introduce a
complaint to the Court against one or various High Contracting Parties in case of a serious
issue of a more general nature.66
Waiver of rights under the Convention
There is no specific provision in the Convention explicitly dealing with the issue of waiver
of rights (voluntary abdication of a material right) or estoppel (impossibility for a
complainant to invoke a certain Convention right as a result of the procedural behaviour of
the complainant). On the other hand, waiver of rights is not explicitly forbidden under the
Convention either and the doctrine of the waiving of rights is known in many national legal
systems of the Council of Europe. As Lawson and Schermers explain, the doctrine of
waiver of rights under the Convention touches upon the very rationale of human rights:
“If human rights are seen primarily as tools to secure maximum freedom
and autonomy for the individual, then there can be no objection of
principle to any waiver, provided that it is freely given. If, on the other
hand, one perceives human rights rather as fundamental norms of a
civilised society, it may be more difficult to accept that an individual
waives such rights. The individual may not feel the need to exercise a
specific right, but the ordre public would require that the norm in question
is complied with.” 67
The European Court accepts a waiver of a Convention right:
“In the Contracting States’ domestic legal systems a waiver of this kind is
frequently encountered both in civil matters, notably in the shape of
arbitration clauses in contracts, and in criminal matters in the shape, inter
66
CDDH-GDR (2003) 027 of 24 September 2003.
67
R.A. Lawson & H.G. Schermers, Leading Cases of the European Court of Human Rights, Nijmegen:
Ars Aequi Libri, 1999, p. 637. See also M.I. Veldt, Het EVRM en de onpartijdige strafrechter,
Deventer: Gouda Quint, 1997, p. 157.
20
alia, of fines paid by way of composition. The waiver, which has
undeniable advantages for the individual concerned as well as for the
administration of justice, does not in principle offend against the
Convention.” 68
However, a waiver will only be acceptable if certain conditions are fulfilled: "In order to be
effective for Convention purposes, a waiver of procedural rights requires minimum
guarantees commensurate to its importance".69 Whether these guarantees have been
safeguarded is an issue that will not be left to the discretion of the national authorities, but
which will be tested by the European Court in an autonomous manner. The applicable
guarantees can be divided in certain material conditions that the Court imposes and certain
procedural conditions.
The material conditions can be summarised as follows. Firstly, the waiver must be
in accordance with the requirements of domestic law.70 Secondly, the Court has clarified
that it does not consider it possible for an applicant to waive all the rights and freedoms
under the Convention. In Albert & Le Compte the Court stated: "The nature of some of the
rights safeguarded by the Convention is such as to exclude waiver of the entitlement to
exercise them".71 Only in a few rare instances has the Court clearly ruled that a Convention
right was of such a 'public order' nature that waiver of the right was impossible.72 With
regard to most Convention rights, however, the Court has taken a very hesitant approach
and has seldom given a general statement concerning the question whether waiver with
regard to a specific Convention right was possible or not.73 And thirdly, a waiver of rights
68
ECHR, 27 February 1980, Deweer – Belgium (Series A-35), § 49.
69
ECHR, 25 February 1992, Pfeifer & Plankl - Austria (Series A-227), § 37. In my opinion the Court’s
reference to ‘procedural rights’ is equally applicable to non-procedural rights, with the exception of
non-derogable rights (cf. C.J. Staal, De vaststelling van de reikwijdte van de rechten van de mens,
Nijmegen: Ars Aequi Libri, 1995, p. 342).
70
ECHR, 10 February 1983, Albert & Le Compte - Belgium (Series A-58), § 35.
71
ECHR, 10 February 1983, Albert & Le Compte - Belgium (Series A-58), § 35.
72
One of the most explicit examples has been the Vagrancy case, in which the Court stated: "The right
to liberty is too important in a 'democratic society' within the meaning of the Convention for a person
to lose the benefit of the protection of the Convention for the single reason that he gives himself up
to be taken into detention [...] When the matter is one which concerns ordre public within the
Council of Europe, a scupulous supervision by the organs of the Convention of all measures capable
of violating the rights and freedoms which it guarantees is necessary in every case" (ECHR, 18 June
1971, De Wilde, Ooms & Versyp - Belgium (Series A-12), § 65).
73
It is for example unclear which elements of Article 6 ECHR can be waived by individual applicants
and which elements should be considered ordre public. See also J.-F. Flauss, "L'application de l'art.
6 (1) de la Convention européenne des droits de l'homme aux procédures arbitrales", in: Gazette du
21
will not always be possible under all circumstances - even if a waiver does not run counter
the ordre public in general. This can be seen for example in the Court's judgment of the
Håkansson & Sturesson case: "[...] neither the letter nor the spirit of this provision prevents
a person from waiving [...] the entitlement to have his case heard in public [...] However, a
waiver must [...] not run counter to any important public interest".74
Then a few remarks concerning the procedural conditions. Firstly, the waiver has to
be made without any form of coercion. In the Deweer case the Court confirmed that “[…]
absence of constraint is at all events one of the conditions to be satisfied; this much is
dictated by an international instrument founded on freedom and the rule of law”.75
Subsequent case-law has elaborated on this issue. Lack of coercion is in itself not
sufficient; the waiver has to be made out of someone’s own free will.76 The facts of the
Pfeifer & Plankl case can serve as an example. The domestic judge approached the
applicant (in the absence of his lawyer) to ask him whether he would refrain from raising
the question of the disqualification of the judges. The European Court did not consider it
necessary to determine whether pressure had been exerted on the applicant. It was sufficient
to note that the national judge approached the applicant in the absence of his lawyer, put to
him a question which was essentially one of law whose implications a layman was not in a
position to appreciate completely. The Court concludes: "A waiver of rights expressed there
and then in such circumstances appears questionable, to say the least”.77 Secondly, a waiver
can only be made out of someone’s free will if that person is fully aware of the (extent of
the) rights he waives.78 And thirdly, the waiver must be made “in an unequivocal
Palais 3 July 1986, p. 408; the author maintains that it will be impossible for an applicant to waive
all elements under Article 6 ECHR but that there is still a lot of uncertainty which elements are
"droits strictement procéduraux" and which elements are "regles du fond".
74
ECHR, 21 February 1990, Håkansson & Sturesson - Sweden (Series A-171-A), § 66.
75
ECHR, 27 February 1980, Deweer – Belgium (Series A-35), § 49.
76
See for example ECHR, 10 February 1983, Albert & Le Compte – Belgium (Series A-58), § 35: “[…]
if this is in accordance with the will of the person concerned”.
77
ECHR, 25 February 1992, Pfeifer & Plankl – Austria (Series A-227), § 38.
78
See R.A. Lawson, “Arbitrage en artikel 6 EVRM: vrijheid in gebondenheid”, in: Tijdschrift voor
Arbitrage 1996, p. 159. See also: ECHR, 12 October 1992, T. – Italy (Series A-245-C), §§ 27-28.
However, it may be noted that the Court has found, outside the area of waivers, that laymen may be
expected – within reasonable limits – to provide themselves with adequate legal advice (see, for
example, ECHR, 28 March 1990, Groppera Radio – Switzerland (Series A-173), § 68 and ECHR, 29
October 1992, Open Door – Ireland (Series A-246), § 60).
22
manner”.79 This last condition does not necessarily mean that the waiver always had to be
made explicitly. Tacit waivers have been accepted by the Court.
Relationship with domestic courts
One can look at the relationship between the European Court of Human Rights and the
domestic judge from two perspectives. I will start with the relationship with the domestic
judge from the viewpoint of the European Court. At the end of this paragraph I will make a
few remaining remarks concerning domestic courts and their possible role to serve as
‘Convention courts’.
First, the role of domestic courts in the case-law of the European Court. The
European Court relies in various ways on the national judiciary. As Lawson and Schermers
point out, this reliance is supported by a practical argument: the collection of data. Both in
distance and in time these domestic courts are much closer to the alleged breach of the
Convention than the European Court can possibly be.80 The establishment and verification
of the facts is primarily a matter for the domestic courts. However, the European Court is
not bound by the domestic courts’ findings. 81 It will depart from the findings of fact of the
national courts if “cogent elements have been provided”.82 Furthermore, it is standing caselaw that it is primarily for the national authorities, notably the courts, to resolve problems
of interpretation of domestic legislation. This is primarily true with regard to the
interpretation of national procedural law. In the Platakou judgment the Court summarised:
“The Court reiterates that it is not its task to take the place of the domestic
courts. It is primarily for the national authorities, notably the courts, to
resolve problems of interpretation of domestic legislation […] This applies
in particular to the interpretation by courts of rules of a procedural nature
such as the prescribed manner and prescribed time for lodging appeals
79
For example ECHR, 21 February 1990, Håkansson & Sturesson – Sweden (Series A-171-A), §§ 6667.
80
R.A. Lawson & H.G. Schermers, Leading Cases of the European Court of Human Rights, Nijmegen:
Ars Aequi Libri, 1999, p. 337.
81
See ECHR, 4 December 1995, Ribitsch – Austria (Series A-336), § 32.
82
ECHR, 22 September 1993, Klaas – Germany (Series A-269), § 30.
23
[…]. The Court's role is confined to ascertaining whether the effects of
such an interpretation are compatible with the Convention.” 83
This reasoning also applies to matters of evidence. As a general rule it is for the national
courts to assess the evidence before them and to rule on the admissibility of evidence,
unless there are clear indications of a violation of Article 6 ECHR with respect to the way
in which the proof was collected.84
From the foregoing, it will not come as a surprise that the European Court has
consistently declined to act as a kind of ‘fourth instance’, i.e. a European Court of Appeal
that fully reviews judicial decisions of national courts. In the Van de Hurk case, for
example, the Court stated that Article 6 § 1 ECHR “cannot be understood as requiring a
detailed answer [by the national court, MK] to every argument. Nor is the European Court
called upon to examine whether arguments are adequately met [italics added]”.85 Such a
standpoint is understandable in view of the overwhelming workload of the European Court.
Then the reverse viewpoint: the viewpoint of the domestic court. The principle of
subsidiarity, which is obviously relevant in this context, was already discussed. On the
basis of the principle of subsidiarity the primary duty to apply the Convention lies with the
national authorities, including the domestic courts.86 Article 13 ECHR also emphasises this
primary duty for the national authorities. In recent political documents dealing with the
reform of the European Court, the primary role for national courts is emphasised again and
again. Only if national courts fulfil their primary duty to enforce the rights and freedoms of
the Convention may the European Court be able to cope with its workload. In that sense
83
ECHR, 11 January 2001, Platakou – Greece (appl. no. 38460/97), § 37. Complete reliance on the
national (judicial) authorities will not exist to such an extent in case the Convention directly refers
back to national law. In Article 5 § 1, for example, the text of the Convention states that a person can
only be deprived of his liberty “in accordance with a procedure described by law”. Even then
however, the scope of the Strasbourg test will be marginal. The European Court will only check
whether the interpretation given by the national courts was not “arbitrary” (see ECHR, 24 October
1979, Winterwerp – Netherlands (Series A-33), § 45 and § 46; M. Kuijer, “Artikel 5 EVRM en de
(procedurele) bescherming van de psychiatrische patiënt”, in: R.A. Lawson & E. Myjer (eds.), 50
Jaar EVRM, Leiden: Stichting NJCM-Boekerij, 2000, p. 77).
84
See for example ECHR, 12 July 1988, Schenk – Switzerland (Series A-140), § 46; ECHR, 6
December 1988, Barberà, Messegué & Jabardo – Spain (Series A-146), § 68 and ECHR, 20
November 1989, Kostovski – Netherlands (Series A-166), § 39.
85
ECHR, 19 April 1994, Van de Hurk – Netherlands (Series A-288), § 61.
86
F.J. Bruinsma & S. Parmentier, “Interview with Mr. Luzius Wildhaber, President of the ECHR”, in:
Netherlands Quarterly of Human Rights 2003, p. 186: “As the Court is a subsidiary system, we are
completely dependent on national courts doing their job”.
24
one could say that there is an increasing tendency to consider national courts as
‘Convention courts’. With that in mind, the current practice of the Court to enumerate its
general principles before turning to the specific facts of the concrete case can be applauded.
This is a useful tool for the domestic courts. It shows the domestic courts (and
commentators) what the Court itself considers to be its basic case-law.
However, the Convention does not impose a general obligation to incorporate the
Convention into the domestic legal order.87 The Convention leaves it up to the national
authorities to decide how the rights and freedoms of the Convention are secured in their
domestic legal systems. Domestic courts are neither obliged to apply the Convention ex
officio. In the Ahmet Sadik case the European Court stated:
“[e]ven if the Greek courts were able, or even obliged, to examine the case
of their own motion under the Convention, this cannot have dispensed the
applicant from relying on the Convention in those courts or from
advancing arguments to the same or like effect before them, thus drawing
their attention to the problem he intended to submit subsequently, if need
be, to the institutions responsible for European supervision.” 88
A special situation arose in the Vermeire case. The Court had already found a violation in a
comparable case, the Marckx case. Vermeire had explicitly relied on the Marckx judgment
before the Belgian courts. In those circumstances, the Strasbourg Court remarked: “It
cannot be seen what could have prevented the Brussels Court of Appeal and the Court of
Cassation from complying with the findings of the Marckx judgment”.89
The European Court of Human Rights as a Constitutional Court for Europe?
87
Only some states in the Council of Europe have a so-called monistic system in which international
treaties are treated as part of domestic law (see for example Article 93 of the Dutch constitution).
Other states have a dualistic legal system, in which national courts may only apply domestic
legislation. They may only take international treaties into account if these have been incorporated in
the domestic legal order. The ECHR has been incorporated in, inter alia, Denmark, Sweden,
Norway, Iceland and (with some exceptions) the United Kingdom.
88
ECHR, 15 November 1996, Ahmet Sadik – Greece (Reports 1996, 1638). § 33.
89
ECHR, 29 November 1991, Vermeire – Belgium (Series A-214-C), § 25.
25
In its Loizidou judgment, the Court referred to the Convention "as a constitutional
instrument of European public order (ordre public)".90 Similar references to the Court as a
future constitutional court for Europe have been made in several speeches of the former
President of the Court, Rolv Ryssdal91, by the present President of the Court, Luzius
Wildhaber92, and in the final report of the Steering Committee for Human Rights on
guaranteeing the long-term effectiveness of the Court93. Much can be said about the extent
in which the Convention can be regarded as a constitutional instrument. However, such an
elaborate analysis would fall outside the scope of this thesis. In brief, in my opinion, the
conclusion is that the Convention could not possibly pretend to be the all-embracing ‘basic
law’ of a ‘European State’.94 There simply is no European State. Neither does the
Convention divide the competencies between the various European pouvoirs (legislature,
executive and judiciary) or settle such matters as their compositions and powers. Instead the
reference to a ‘constitutional instrument’ should be regarded as the reaffirmation of the fact
that the Convention "lays down certain fundamental rules of law and principles which
regulate the behaviour of the European States and determine, to a certain extent at least,
their legitimacy".95 The European Court is in a position to hand down decisions concerning
90
ECHR, 23 March 1995, Loizidou - Turkey (preliminary objections) (Series A-310), § 75; the
Commission made a similar comment in its report on the admissibility of the case in § 21.
91
Rolv Ryssdal, Ceremony for the 40th Anniversary of the European Convention on Human Rights,
Trieste, 18 December 1990, CEDH Cour (90) 308 referring to President Andreotti calling the
Convention "the embryo of the Constitution of the new Europe" and R. Ryssdal, “On the Road to a
European Constitutional Court” (Winston Churchill Lecture), European University Institute in
Florence, 21 June 1991, in: Collected Courses of the Academy of European Law, Dordrecht:
Martinus Nijhoff, 1991, pp. 1-20.
92
F.J. Bruinsma & S. Parmentier, “Interview with Mr. Luzius Wildhaber, President of the ECHR”, in:
Netherlands Quarterly of Human Rights 2003, p. 185: “I see the Court pretty much as a European
constitutional court”.
93
CDDH (2003) 006 Final adopted by the CDDH on 4 April 2003, § 11: “The CDDH does not
however believe that the choice is one between two views that seem radically opposed: one under
which the Court would deliver ‘individual justice’; the other under which the Court would deliver
‘quasi-constitutional justice’. Both functions are legitimate functions for a European Court of Human
Rights”.
94
Also: E.A. Alkema, "The European Convention as a constitution and its Court as a constitutional
court", in: P. Mahoney, F. Matscher, H. Petzold & L. Wildhaber (eds.), Protecting Human Rights:
The European Perspective - Studies in memory of Rolv Ryssdal, Köln: Carl Heymanns Verlag, 2000,
pp. 41-63; S. Trechsel, The European Convention on Human Rights as a European Constitution
(speech held at Leiden University on 14 May 2001), not published.
95
R.A. Lawson & H.G. Schermers, Leading Cases of the European Court of Human Rights, Nijmegen:
Ars Aequi Libri, 1999, p. 605. See also H.G. Schermers, “A European Supreme Court”, in: P.
Mahoney a.o. (eds.), Protecting Human Rights: The European Perspective, Köln: Carl Heymanns
Verlag, 2000, pp. 1271-1284.
26
the constitutional framework of the High Contracting Parties. Its decisions can, for
example, have an impact on the supremacy of Parliament. This control is also the reason
why some applicants (and maybe even some national judges) will perceive the Court as a
kind of constitutional court, even though it formally does not fit that description.96
96
See E.A. Alkema, "De Europese Conventie: begin van een Europese Constitutie?", in: A.W. Heringa,
J.G.C. Schokkenbroek & J. van der Velde (eds.), 40 Jaar Europees Verdrag voor de Rechten van de
Mens, Leiden: NJCM, 1990, p. 353.
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