Abstract
This article seeks to explore the forms of dialogue existing between the European Court of Human Rights and national authorities, in particular the Judiciary and the Legislative power. The renewed use of the subsidiarity principle has increased dialogue between the domestic and European level. However, in the difficult context experienced by the European system, the Court must prevent dialogue from turning into deference to the detriment of Human Rights protection.
Peggy Ducoulombier is Professor of Public Law at the University of Strasbourg and Honorary Lecturer at the University of Aberdeen.
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Notes
- 1.
See for instance, Spano (2014), pp. 487–502.
- 2.
See in particular the Brussels Declaration (2015) and Copenhagen Declaration (2018). It must be stressed that the draft Copenhagen Declaration, exploiting the recent developments of European case-law, clearly propounded a conception of subsidiarity which was equivalent to deference towards the domestic authorities’ decisions. Even if the final declaration is more balanced, traces of the previous draft remain in the emphasis placed on subsidiarity and the margin of appreciation, the need for the Court to focus on serious or systemic violations, etc. However, for an understanding of subsidiarity as leading to a “shared responsibility” in the protection of the ECHR, see §10 of the Copenhagen Declaration: “The Conference therefore: Reiterates that strengthening the principle of subsidiarity is not intended to limit or weaken human rights protection, but to underline the responsibility of national authorities to guarantee the rights and freedoms set out in the Convention”. In addition, the Copenhagen Declaration insists on the important of dialogue (see §33 and sq).
- 3.
See, for instance, for the legislator’s decision to open marriage to same-sex couples, Conseil constitutionnel, dec. 2013-669 DC, 17 May 2013, §14.
- 4.
See ECtHR, Handyside v. the United Kingdom, 7 December 1976, app. 5493/72, §48: “[…] 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 the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. […] Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force […]”.
- 5.
See, for instance, ECtHR, GC, S.A.S. v. France, 1 July 2014, app. 43835/11, §129: “It is also important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight […]”.
- 6.
See Cour de Cassation, Plenary Assembly, 15 April 2011, cases 589 to 592. Therefore, even before the case of Brusco v. France, 14 October 2010, app. 1466/07, was decided, it was clear from GC, Salduz v. Turkey, 27 November 2008, app. 36391/02, that French law was not compliant with article 6 ECHR.
- 7.
ECtHR, Mennesson v. France, 26 June 2014, app. 65192/11 and Labassee v. France, 26 June 2014, app. 65941/11. On July 3rd 2015, in Plenary Assembly case 619 and 620, the Cour de cassation reversed its own case-law and accepted that foreign birth certificates should be entered in the French register of births for children born from a surrogate mother, at least regarding their filiation with their biological father.
- 8.
For instance, after Kress v. France (ECtHR, GC, 7 June 2001, app. 39594/98), a dialogue started on the manner in which the former commissaire du gouvernement could attend the deliberations without his or her presence being considered as in breach of article 6 ECHR. However, the solution offered by the French Government was not deemed satisfactory by the Court and France was again found in breach of article 6 in Martinie v. France (ECtHR, GC, 12 April 2006, app. 58675/00). The proposal, prohibiting the presence of the commissaire du gouvernement during deliberations before first instance and appeal administrative courts and allowing it before the Conseil d’Etat, unless the parties object, was finally approved by the Court (ECtHR, dec., Etienne v. France, 15 September 2009, app. 11396/08). This string of cases may be considered as a form of dialogue between the French administrative judges and Government and the Court, although the result of the dialogue was very much influenced by the European Court. Nevertheless, the good will of both actors in trying to find a compromise on this issue led the Court to be rather tolerant towards other aspects of the internal functioning of French administrative courts. Indeed, in light of ECtHR, GC, Reinhardt and Slimane-Kaïd v. France, 31 March 1998, app. 23043/93 and 22921/93, involving the functioning of the Cour de cassation, one could have feared that the Court would find France in breach of article 6 again, with regard the communication of the work of the conseiller rapporteur to the rapporteur public (formerly known as commissaire du gouvernement). However, the Court, in the decision Marc-Antoine v. France, 4 June 2013, app., 54984/09, decided that there was no breach of the equality of arms principle as the draft judgment was an internal document and parties could understand the main arguments developed by getting access to the general substance of the rapporteur public’s conclusions on the case.
- 9.
Although the Copenhagen Declaration declares the Court to be the authoritative interpreter of the Convention (§26).
- 10.
This idea is already present in older cases from the House of Lords such as R v Spear [2002] UKHL 31 or R v Lyons (n°3) [2002] UKHL 44.
- 11.
ECtHR, Al-Khawaja and Tahery v. the United Kingdom, 20 January 2009, app. 26766/05 and 22228/06.
- 12.
R v Horncastle [2009] UKSC 14, § 11: “The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course”. The principles were later elaborated on by Lord Neuberger in the case of Manchester City Council v Pinnock [2010] UKSC 45, §48.
- 13.
R (Ullah) v Special adjudicator [2004] UKHL 26. Lord Bingham explained that a court “should in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court”.
- 14.
As a result, in the Al-Khawaja case, the Grand Chamber reversed the decision of the chamber and found no violation of article 6 ECHR. ECtHR, GC, Al-Khawaja and Tahery v. the United Kingdom, 15 December 2011, app. 26766/05 and 22228/06.
- 15.
A recent example may be found in R (on the application of Hallam) v Secretary of State for Justice [2019] UKSC 2, where the majority of the UKSC departed from the Grand Chamber’s ruling in Allen (ECtHR, GC, Allen v. the United Kingdom, 12 July 2013, app. 25424/09), with Lord Reed and Lord Kerr dissenting. In particular, Lord Reed stressed that none of the arguments used to justify departure from the ECtHR’s case-law were present in the case. See §175: “[…] I find it difficult to accept that this court should deliberately adopt a construction of the Convention which it knows to be out of step with the approach of the European Court of Human Rights, established by numerous Chamber judgments over the course of decades, and confirmed at the level of the Grand chamber, in the absence of some compelling justification for taking such an exceptional step. For my part, I can see no such justification”. Judge De Gaetano’s separate opinion in Allen was, on the contrary, used by Lord Mance and Lord Wilson to support departing from the Court’s judgment. It is now feared that simple disagreement with the decision of the ECtHR suffices to justify departure as Lord Wilson’s acerb remarks on Strasbourg case-law seem to indicate (§85-86): “I am, however, persuaded that, in its rulings upon the extent of the operation of article 6(2) of the Convention, the ECtHR has, step by step, allowed its analysis to be swept into hopeless and probably irretrievable confusion. An analogy is to a boat which, once severed from its moorings, floats to sea and is tossed helplessly this way and that […] the entitlement of the ECtHR […] to give an autonomous meaning to the articles of the Convention is intended to override any distorted meaning ascribed to them contrary to the Vienna Convention by individual states, not to licence the ECtHR to ascribe a distorted meaning to them […]”. This resistance is also justified by the fact that Lord Wilson does not believe that there is further room for dialogue between the UKSC and the ECtHR (§94). Therefore, it is clear that dialogue can no longer be used as a justification for resistance.
- 16.
ECtHR, GC, Vinter and others v. the United Kingdom, 9 July 2013, app. 66069/09, 130/10 and 3896/10.
- 17.
ECtHR, GC, Hutchinson v. the United Kingdom, 17 January 2017, app. 57592/08.
- 18.
R v Newell; R v McLoughlin [2014] EWCA Crim 188.
- 19.
For an example of the influence of the UK by way of third-party intervention, see the evolution of the Court’s position on the prisoners’ right to vote, from ECtHR, GC, Hirst v the United Kingdom (n°2), 6 October 2005, app. 74025/01, to ECtHR, GC, Scoppola v. Italy, 22 May 2012, app. 126/05.
- 20.
ECtHR, GC, S., V. and A. v Denmark, 22 October 2018, app. 35553/12, 36678/12 and 36711/12.
- 21.
[2017] UKSC 9.
- 22.
It must be underlined that the judgment was delivered unanimously. However, judge Lemmens and judge Jaderblöm wrote a separate opinion to highlight their difference in reasoning on the ground that should have been used to conclude that the preventive arrest was not in breach of article 5 ECHR.
- 23.
ECtHR, Ostendorf v. Germany, 7 March 2013, app. 15598/08.
- 24.
In that regard, it must be highlighted that the Copenhagen Declaration argues for a development of States third-party interventions (see §40 in particular).
- 25.
One must also mention the development of a dialogue with the highest judges of Contracting Parties through the Superior Courts Network, which value is stressed by the Copenhagen Declaration (§37 b).
- 26.
See, for instance, the first request for an advisory opinion made by the French Cour de Cassation about the sequels of the Mennesson and Labassee cases, regarding the situation of the intended mother, which is yet to be clarified.
- 27.
For instance, Parliaments may have specialised Human Rights committee assessing the compatibility of bills with the ECHR, or this question may be an element taken into consideration in the legislative process. The Copenhagen Declaration (§16b), in line with the Brussels Declaration, insists on the role of Parliaments in securing the implementation of the ECHR at the domestic level.
- 28.
Conseil d’Etat, Etude relative aux possibilités juridiques d’interdiction du port du voile intégral, 25 March 2010.
- 29.
ECtHR, Ahmet Arslan and others v. Turkey, 23 February 2010, app. 41135/98.
- 30.
Conseil constitutionnel, dec. 2010-613 DC, 7 October 2010, Act prohibiting the concealing of the face in public.
- 31.
ECtHR, Belcacemi and Oussar v. Belgium, 11 July 2017, app. 37798/13.
- 32.
ECtHR, GC, Von Hannover v. Germany (n°2), 7 February 2012, app. 40660/08 and 60641/08. This new methodology is supported by the Copenhagen Declaration (§28 c).
- 33.
See §105 and 107: “[…] In exercising its supervisory function, the Court’s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on […] Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts […]”.
- 34.
ECtHR, GC, Evans v. the United Kingdom, 10 April 2007, app. 6339/05.
- 35.
ECtHR, GC, Animal Defenders International v. the United Kingdom, 22 April 2013, app. 48876/08.
- 36.
See the common dissenting opinion of Judge Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano in Animal Defenders International v the United Kingdom, spec. pt 9 and 10: “there can be no double standards of human rights protection on grounds of the “origin” of the interference. It is immaterial for a fundamental human right, and for that reason for the Court, whether an interference with that right originates in legislation or in a judicial or administrative act or omission.”
- 37.
We do not disagree with the end result in S.A.S., however we argue that it would have been preferable for the Court to take a strong stance on gender equality rather than building its reasoning on the scope of the margin of appreciation.
- 38.
See for instance, ECtHR, GC, Axel Springer AG v. Germany, 7 February 2012, app. 39954/08 or ECtHR, GC, Bărbulescu v. Romania, 5 September 2017, app. 61496/08.
- 39.
In that regard, certain judges consider that principles of interpretation are not applied consistently by the Court. See the dissenting opinion of Judge De Gaetano and Judge Wojtyczek in the case of S., V. and A. v. Denmark.
- 40.
See, for instance, the double standard criticism raised by the minority in the case of Animal Defenders International when compared to the case of VGT Verein gegen Tierfabriken v. Switzerland, 28 June 2001, app. 24699/94.
- 41.
In order to mitigate such fears, one may highlight the Beghal v. the United Kingdom judgment, 28 February 2019, app. 4755/16 (non-final), in which a chamber of the first section found the 2000 terrorism legislation of the UK in breach of the Convention while, in other cases, the Court seemed more willing to adapt its case-law to the difficult circumstances of fighting terrorism. See, for instance, ECtHR, GC, Ibrahim and others v. the United Kingdom, 13 September 2016, app. 50541/08, 50571/08 et sq.
- 42.
Spano (2019), p. 114.
References
Spano, R. (2014). Universality or diversity of human rights, Strasbourg in the age of subsidiarity. Human Rights Law Review, 14, 487.
Spano, R. (2019). Human rights: Enforcement and effectiveness. In N. Aloupi, D. P. Fernández Arroyo, C. Kleiner, L.-A. Sicilianos, & S. Touzé (Eds.), Les droits humains comparés, A la recherche de l’universalité des droits humains (pp. 109–115). Paris: Pedone.
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Ducoulombier, P. (2019). The Dialogue Between the European Court of Human Rights and Domestic Authorities: Between Respect for Subsidiarity and Deference. In: Pinto de Albuquerque, P., Wojtyczek, K. (eds) Judicial Power in a Globalized World. Springer, Cham. https://doi.org/10.1007/978-3-030-20744-1_9
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