Tuesday 27 May 2008

Separate Opinions

The possibility to write and attach separate opinions to the Court’s judgments must undoubtedly be one of the more attractive aspects for the judges in Strasbourg – an aspect which may make their ECJ colleagues somewhat envious, for that matter! But possibly even bigger is their appeal to observers of the Court’s work. Often the opinions, whether concurring or dissenting, offer insights in core discussion points in a judgment. Also, they may give clues about developments in the Court’s position. A famous instance is the line of ‘British’ cases on transsexuals: Rees (1986, appl.no. 9532/81) – Cossey (1990, 10843/84) – Christine Goodwin (2002, 28957/95).

A full database of the Court's separate opinions has been compiled by the University of Leicester. For an interesting analysis of the correlations between a judge's background and separate opinions (including the finding that a small degree of national bias does exist), see the paper 'The Room at the Top: Separate Opinions in the Grand Chambers of the ECHR (1998-2006)' of Fred Bruinsma (Utrecht University). His material is limited to the Court's Grand Chamber judgments. Erik Voeten (Georgetown University), in his paper 'What Motivates International Judges? Evidence from the European Court of Human Rights', provides a broader analysis of why the European Court's judges vote as they vote. He argues that differences in judicial philosophies offer the strongest explanation for variations in voting patterns. In addition, he defends the intriguing view - supported by evidence - that judges from countries with low levels of judicial independence are more likely than other judges to vote against their own states. Much food for thought (or for dissent?).