Exactly one month ago, on 4 November 2015, the European Convention on Human Rights had been in existence for exactly 65 years. In 1950, thirteen Council of Europe Ministers signed the treaty in the Palazzo Barberini in Rome. To commemorate that special moment and all the developments since, my alma mater, the Leiden Law School organised a special event in which all invited speakers were asked to deliver short, column-like, thought-provoking or even comical statements on the Convention and the Court, which were not allowed to exceed five minutes. Among the speakers were the President of the Dutch Supreme Court, the Dutch government agent at the Court, and a number of academic ECHR experts, including yours truly. Several of these contributions have now been published on the website of Leiden Law School and will also be published in the Dutch human rights review (Nederlands Tijdschrift voor de Mensenrechten). This was my own tongue-in-cheek addition to the line-up of speakers:
Jeckyll and Hyde in
Strasbourg
Having a split personality is usually not seen
as a positive thing. Not for the outside world, and not for the person itself.
Robert Stevenson’s novel about Dr Jekyll and Mr Hyde famously showed how the
constant shifting between personalities could almost destroy someone. A clear
and unified self-perception and image is the preferred style of identity in
almost all fields of life and practice, from organizational science to
marketing and psychology. Choices have to be made for the sake of clarity and
efficiency, but also for the mere functioning of a person or organization it
seems.
From this perspective, it is no surprise that
the history of the main guardian institution of the ECHR, the European Court of
Human Rights, which celebrated its 50th anniversary this month on 4
November, has been marked by an almost constant discussion about the Court’s
role and focus. The text of the Convention itself seemed straightforward enough
about the function of the Strasbourg Court. It states in Article 19 that the
Court was created “to ensure the observance of the engagements undertaken by the
High Contracting Parties.” But the ways in which this can be done has led to deep
soul-searching within the Court and a lot of debate outside it. Should the
Court focus on the role of provider of individual justice in the applications that
represent the large bulk of its docket, or should it, for principled or
pragmatic reasons take an altogether different, more constitutional role,
ruling on principles and structures rather than the nitty-gritty of each
individual case?
Looking back at the history of the Court’s work
in acting as guardian of the Convention, we can easily discern traces of both.
Most judgments have focused on very individualised instances of injustice. But
the Court started pointing at structural deficiencies in states early on, for
example in Marckx v Belgium. In
addition, there have been a few inter-state cases of course. And more recently,
in the last decade, state parties have nudged the Court into experimentation
leading away, at a slightly larger scale, from dealing with all individual
cases. The Convention since Protocol 14 includes a provision in Article 35 on
the possibility to dismiss cases in which the applicant did not suffer “a
significant disadvantage”. Not every single case merits discussion by the Court
anymore. However sparingly used, it departs from the principle of purely
providing individual justice to everyone coming to Strasbourg. In a more significant
move, the Court has developed the practice of the so-called pilot judgment
procedure, starting with the Broniowski v
Poland case in 2004.
Pilot judgments are a tool to be used when the
Court receives a large number of applications with the same root cause. The
Court then selects one, pars pro toto,
to deal with all comparable applications. In a pilot judgment, the Court both
identifies the structural human rights problem at stake and gives indications
to the state concerned that go beyond the individual case. These problems have
so far included overly long judicial procedures, property restitution
programmes, and prison conditions for example. This in effect gives the Court a
quasi-constitutional role through the lens of one case.
Often but not always, comparable cases pending
before the Court are “frozen”, leaving these other applicants in the
metaphorical cold, or eventually even sending their case back to the national
level. For them, the benefits of the Court taking a constitutional role may be
quite difficult to see. And sometimes, the pilot judgment procedure yields no
direct results at all, as the country at stake resists the Court’s more intrusive,
constitutional actions. This was the case in the British prisoners’ voting
rights saga. But when the pilot procedure works well, it not only saves the
Court work, it also goes beyond the combatting of symptoms and addresses the
causes of human rights problems more directly. In those instances the Court
weds its individual-justice personality with its constitutional one.
To conclude, the Court has to deal on a daily
basis with countries who constantly shift from nice dr Jekylls to evil Mr Hydes
and vice versa. The agility with which states oscillate between good and bad
human rights practice is obviously not something to be copied by the Court. But
I certainly wish for the Court in the coming years to become more at ease with
its double identity as both a guardian of individual justice and as a constitutional
actor. The two can and should co-exist. The Court itself has called the
Convention a living instrument. It is time the Court accepts something else:
that it has, itself, a living identity.