Friday 31 May 2019

First Infringement Proceedings Judgment of the European Court : Ilgar Mammadov v Azerbaijan

It is a season of firsts for the European Court of Human Rights. After its first Advisory Opinion under Protocol 16 last month, about which I reported earlier, this week the Grand Chamber has handed down its first judgment re infringement proceedings: Ilgar Mammadov v Azerbaijan. Mammadov is an Azerbaijani opposition politian and human rights activist who had been imprisoned from 2013 to 2018 and for many years the Council of Europe, other international organisations, and many NGOs had been calling for the release of this political prisoner. In this week's judgment, the Court unanimously found that the steps taken to implement the original judgment in the Ilgar Mammadov case of 2014 had only been limited and that as a result it could not be said that Azerbaijan had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment. As a result the country had failed to fulfil its obligations under article 46 of the ECHR to abide by the Court´s original judgment. This very damning appraisal of how Azerbaijan deals with its European Convention on Human Rights obligations is the first outcome of the so-called infringement proceedings.

The idea of infringement proceedings

The idea to create infringement proceedings within the ECHR system was first floated in the Parliamentary Assembly of the Council of Europe (PACE). Such proceedings were meant to make the implementation of the judgments of the Court more effective - even if by international comparison, then and now, the Strasbourg system's record is one of the more hopeful among international human rights institutions. Initially, the starting point was to give teeth to the proposal by including the idea of fines for states that persistently delayed the execution of judgments. Introducing infringement proceedings eventually became part of the wholesale reform of the Court in Protocol 14 to the ECHR of 2004, which entered into force in 2010. An amended version of Article 46, on the binding force and execution of judgments, from then onwards included a fourth paragraph, stating: 
"If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1."
Paragraph 1 obliges State Parties to abide by the final judgments of the Court in cases to which they are parties. The amendment of Article 46 should be seen in the wider context of the large influx of cases reaching the European Court of Human Rights already in those days. The underlying idea was that the better and more efficient the Committee of Ministers could make sure states implement the Court´s judgments, the less new human rights complaints would come to Strasbourg. The option of bringing infringement proceedings for states refusing to comply with judgments was therefore added, in the shape of the new Article 46(4) to the Convention. One may note that this is not about (temporary) inability, but about unwillingness to secure ECHR standards. Thus infringement proceedings were meant to be used only in exceptional circumstances. The final formulation did not include a system of fines and may thus have lost some of its teeth (or crucial fangs, some might say), even if the moral and political message was still clear. As the State Parties phrased it in the Explanatory Report to Protocol 14:
"This infringement procedure does not aim to reopen the question of violation, already decided in the Court’s first judgment. Nor does it provide for payment of a financial penalty by a High Contracting Party found in violation of Article 46, paragraph 1. It is felt that the political pressure exerted by proceedings for noncompliance in the Grand Chamber and by the latter’s judgment should suffice to secure execution of the Court’s initial judgment by the state concerned."
Today, one can conclude that indeed the starting point of exceptionality has been heeded by the Committee of Ministers, as these first ever infringement proceedings in the Mammadov case were only initiated at the end of 2017. The reason was the continuing refusal by Azerbaijan to unconditionally release opposition politician Ilgar Mammadov following the Court´s 2014 judgment.

Origins of the Mammadov case

Ilgar Mammadov was the co-founder and chair of the Republican Alternative Civic Movement (“REAL”), a political party on whose ticket he planned to run for the 2013 presidential electinos in Azerbaijan, He also blogged on topical political issues, including being very critical about parliament, for the adoption of a law that introduced heavy penalities for unauthorised demonstrations. In early 2013, he also reported on riots in the town of  Ismayilli, afterr visiting the place. He blamed the unrest on "corruption and insolence" of public officials.Within a few weeks, he was charged with the offences of organising or actively participating in actions causing a breach of public order and detained on remand from 4 February 2013 onwards. Later, the charges were changed to the offence of resistance or violence against public officials, posing a threat to their life. In March 2014, he was sentenced to seven years in prison. But even before that, on 25 February 2013, he had lodged his first complaint with the European Court of Human Rights, relating mainly to the pre-trial detnetion and the abuse of power by the Azerbaijani authorities, who in his view tried to silence an opposition politician. 

Issuing its judgment on 22 May 2014, rather fast for Strasbourg, the Court found violations of the right to liberty (Article 5 ECHR), as Azerbaijan had not shown that there was a "reasonable suspicion" that Mammadov had committed an offence nor that there had been a genuine review of lawfulness of his detention. Due to statements about his guilt from the public prosecutor and the Ministry of the Interior, the Court also found a violation of the presumption of innocence (Article 6(2) ECHR). But no doubt the most damning part of that judgment for Azerbaijan is that the Court also found a violation of Article 18 ECHR in conjunction with Article 5. Azerbaijan was to pay 20,000 euros for non-pecuniary damage suffered by Mr Mammadov. However, the judgment did not specify which particular measures Azerbaijabn should take to remedy the situation, releasing Mr Mammadov being the obvious one among those.

Notably, the finding of a violation of Article 18 entails that the Court concluded that Azerbaijan had acted in bad faith under the Convention. The Court agreed with Mr Mammadov's contention that the real reason to detain and convict him was not because they suspected him of having committed a crime, but rather to silence or punishing him for his critiques of the government. The object of Article 18 is to prohibit the misuse of power and violations are very rarely found. In fact, there are less than a dozen in the Court´s entire case-law - several others of which also against Azerbaijan by the way (see for an overview the Court´s case-law guide on Article 18, avaialble in English, French and ... Azerbaijani!). Since this points to such fundamental problems with the rule of law, the issue of Article 18 would also resurface in the infringement proceedings later on.

In a separate, later application, Mammadov also complained about grave inadequacies in the trial leading up to his conviction. The Court, in the second Mammadov judgment of November 2017, concluded that his trial had indeed been unfair and found a violation of Article 6(1) ECHR.

From supervision to infringement

As in the aftermath of all Strasbourg judgments in which Convention violations are found, the arena of contention then shifted to the Committee of Minsters, the body responsible for the supervision of implementation of judgments. In a series of decisions and interim resolutions, the Committee called upon Azerbaijan to fully remedy the situation and to immediately and unconditionally release Mr Mamamdov. Because of the violation of Article 18, the case was seen as so important that for many years it was discussed, and this is very exceptional (see the clear overview by Lize Glas here), at each of its human rights implementation meetings. As Başak Çali notes on Verfassungsblog in her comment on this week's judgment, Azerbaijan emphasized that the original judgment itself had not ordered it to release Mammadov. Such was the dragging of its feet by Azerbaijan, that eventually, in 2017, the discussion in the Committee reached its boiling point. A sufficient number of states (under Article 46(4) a two-thirds majority is necessary) simply lost patience and trust in Azerbaijan to such an extent that in June of that year the option of infringement proceedings was first floated. In September the Secretary-General of the Council of Europe, Thorbjørn Jagland, called upon the Committee to actually take that step and in October, Azerbaijan was notified of the Committee's intention to launch infringement proceedings. Finally, in December 2017 the proceedings were formally started. In its interim resolution, the Committee held:
"[B]y not having ensured the applicant’s unconditional release, the Republic of Azerbaijan refuses to abide by the final judgment of the Court; Decides to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether the Republic of Azerbaijan has failed to fulfil its obligation under Article 46 § 1".
As a point of note, all of this relates to the first Mammadov judgment, although the developments surrounding the criminal trial against him (the issue of the second judgment) of course played a big role in assessing whether Azerbaijan was implementing judgment No. 1. Not in the least because of timing, as Mammadov No. 2 was issued in November 2017, right in between the Committee's notification of intention and the actual launch of the proceedings.

The judgment itself

And so the ball, or the hot potato, returned back to the premises of the European Court of Human Rights. And so the Court, taking up this new role, had to assess implementation of its own judgment, a function normally accorded to the Committee of Ministers in the Strasbourg system. By some the infringement procedure has been called a nuclear option, but this comparison no longer works as its very use in this case shows that the deterrent effect of its mere existence was not sufficient. Nor are its outcomes of the scale of a nuclear explosion. However, there was some effect, crucial for the applicant. While the Committee of Ministers kept the issue on its agenda and kept calling for its release and while the Court was considering the issue, on 13 August 2018, Mr Mammadov was released as a result of an Appeal's Court judgment in Azerbaijan. A year later, in March 2019, the Supreme Court amended this judgment, taking away the probationary conditions. But overall, the conviction still stood - even if no longer detained, Mr Mamadov still had a criminal record under domestic law. 

In the procedure itself, apart from the applicant and the state, the Committee of Ministers also provided comments, all of them also giving input on the situation after Mammadov's release. The Court dismissed Azerbaijan's argument that as a result of the release, there was no longer a need to discuss the issue - specifically pointing to the fact that the Committee of Ministers had not decided to withdraw the proceedings (paras. 143-146).

As this was the first judgment of its kind, the Grand Chamber of the Court had to set out certain boundaries on how it would deal with the case. First, it tried to elucidate its own task under the infringement proceedings. From the drafting history of Protocol 14, it concluded that the main aim of such proceedings was to "increase the efficiency of the supervision proceedings – to improve and accelerate them." (para. 160). It also noted that the Committee of ministers had developed an extensive acquis in its supervision of implementation of judgments and found (para. 166): 
"[T]there is no indication that the drafters of the Protocol aimed to displace the Committee of Ministers from its supervisory role. The infringement proceedings were not intended to upset the fundamental institutional balance between the Court and the Committee." 
As to the material scope of what was to be considered under these infringement proceedings, the Court identifies that even if the Committee of Minister's request was wide, the supervision practice of the Committee shows that actually its focus was on the invidual measures (Mr Mamamdov's requested unconditional and immediate release) and that thus "the essential question in this case is whether there has been a failure by the Republic of Azerbaijan to adopt the individual measures required to abide by the Court’s judgment regarding the violation of Article 18 taken in conjunction with Article 5" (para. 176). The other elements in the case, of just satisfaction and of general measures, could in principle fall within the scope of infringement proceedings, but in this case they did not require "detailed examination" (para. 177). The former because the monetary compensation had been paid and the later "as a matter of procedure that any general measures required in the present case should be supervised in the context of other similar cases" (ibid.). The Court then goes on to mention that the Committee of Ministers is dealing with a number of other Article 18 cases against Azerbaijan. On the wider, systemic issues of the rule of law in Azerbaijan, the ball is thus kicked once again to the courtyard of the Committee of Ministers. This may be the most disappointing element of the judgment to some, as one might expect the Court, once the very heavy option of infringement proceedings is used by the Committee, that the Court obliges by going beyond the - in itself very important - finding of lack of "good faith"" in securing Convention rights by Azerbaijan. Maybe the hot potato metaphor is the best to use here after all... But then, others may argue this is not the Court´s role.

In then reviewing, within this limited material scope, whether Azerbaijan has complied with the Court's original judgment, the Court makes some very important points. It states that its own judgments are declaratory and rarely indicate specific measures to be taken. But "the absence of an explicit statement relevant to execution in the first Mammadov judgment is not decisive for the question whether there has been a failure by Azerbaijan to fulfil its obligations under Article 46 § 1. What is decisive is whether the measures taken by the respondent State are compatible with the conclusions and spirit of the Court’s judgment" (para. 186). In the particular case, since the imposition of charges against Mammadov had been contrary to Article 18, "the Court’s finding of a violation of Article 18 in conjunction with Article 5 of the Convention in the first Mammadov judgment vitiated any action resulting from the imposition of the charges" (para. 189). And in no way had Azerbaijan shown that it was impossible for it offer restitutio in integrum the situation along those lines (an exception granted under general international law, paras. 190-194). Here the Court buttresses the stance taken by the Committee of Ministers.

A separate issue was the temporal scope to be considered in answering whether a state complies with a judgment of the Court. On that issue, the Court decided that it would not assess ex nunc, but that the starting point should be the moment of referral to the Court by the Committee of Ministers (paras. 170-171). In this case, that moment was 5 December 2017 and thus before the release of Mammadov from prison and before the final domestic judicial decisions. Applying this restricted temporal delimitation, the Court mostly looked at the compensation paid and an initial action plan of Azerbaijan. The Court did also mention the release and the later domestic judgments, but notes that those postdate the start of the infringement proceedings (para. 2016). In conclusion, it holds that the limited steps taken are insufficient.

In both dimensions, material and temporal, the Court thus does not turn an entirely blind eye to the wider context (general measures, later developments), but neither does it evaluate it in detail. In that respect, this judgment, which should have helped to clarify, still leaves a lot of flexibiltiy (or unclarity, depending on how one looks at it). It certainly offers the possibility for the Committee of Ministers to be much more specific in future cases, if it wants the Court to pronounce itself on either a wider general measures to be implemented by the state or more recent implementation developments. The current judgment, through these limitations, in this sense leaves one with the feeling that the Court is only stating the very obvious (that Azerbaijan was clearly going against the Convention obligatinos by not acting in good faith) but still not unequivocally solving the case by giving a clear pronouncement on what would be sufficient action to be taken in the wider context. The result may be that Azerbaijan may just continue dragging its feet in the Committee of Ministers.

The Court ends by stating (para. 217):
"[T]hose limited steps do not permit the Court to conclude that the State party acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the first Mammadov judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment."
A final point of note: while the judgment was unanimous, three concurring opinions, by no les than seven judges in total are attached to the judgment. Some the critiques of the Court´s reasoning are so strong and fundamental that - as Kanstantsin Dzehtsiarou tweeted soon after the judgment - two of those do not read as concurring opinions from a legal perspective. It seems that the importance of sending a unanimous signal to the state concerned in this crucial judgment even impacted the labelling of the opinions.

Conclusion: dark clouds remain

Within hours after the judgment, Mammadov was allowed to brief representatives of the Committee of Ministers through video conference (see the footage here). While he showed gratitude for the great help by the Council of Europe´s institutions, he still deplored that the Azerbaijani authorities do not allow him to run for political office nor have expunged his criminal record.

The Mammadov saga plays out against a background full of dark political clouds: the very contested role of Azerbaijan in Council of Europe bodies. Just last year, an independent report commissioned by the Parliamentary Assembly was published in which problems of corruption connected to Azerbaijan's wheeling and dealing in the Assembly itself were highlighted. Undoubtedly, the current infringement procedure gives new impetus to discussions, about that country and others, on the point at which the flouting of Council of Europe commitments and standards reaches such a crisis point that a state should be ousted from the organization. The huge dilemma remains the same however: whereas such a step might have some political effect to make a state change course, it would lead to barring off the Strasbourg Court as an institution of last resort for human rights victims in the countries at stake. It is not just the oil from a resource-rich country that has a foul smell and nasty stick in this case.

Tuesday 28 May 2019

New ECHR Articles in June Issue of NQHR

The second issue of our Netherlands Quarterly of Human Rights (NQHR) of this year is now online. It includes two articles on the European Convention on Human Rights:

* Noëlle Quénivet, 'The obligation to investigate after a potential breach of article 2 ECHR in an extra-territorial context: Mission impossible for the armed forces?':

'The growing number of military operations conducted by States Party to the European Convention on Human Rights abroad has led to a concomitant surge in court cases, notably relating to the duty to investigate an attack resulting in the death of an individual. Using the example of the British armed forces abroad, this article contends that the principles enunciated by the European Court are difficult, sometimes impossible, to fulfil when military operations are carried out abroad. The Court at times appears to fail to recognise the inherent challenges faced by States in complying with these principles. This article thus suggests that the Court offers a more flexible approach towards compliance with the procedural aspects demanded under Article 2 ECHR, especially regarding the initial phases of the application of Article 2 ECHR, when the armed forces are directly implicated in the procedure.'

* Mark Klaassen, 'Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases':

'The European Court of Human Rights plays a subsidiary role in the protection of the rights and freedoms set forth in the Convention. To enable national authorities to perform their primary role, it is important that the Court offers sufficient guidance on the interpretation of the Convention. It has already been argued that the case law of the Court on the right to respect for family life in immigration cases, lacks consistency in terms of procedural and substantive protection. The inconsistency in the case law is mostly the case in the admission and regularisation case law. This manifests itself in specific issues including the determination of whether an interference has occurred as well as the court’s determination of the best interests of the child. Consequently, the case law difficult to apply by national authorities which leads to widely diverging practices by the Contracting Parties. The objective of this article is to outline the differences and inconsistencies in the different forms of immigration cases and the corresponding compliance tests of the Court. The article aims to offer a solution that would enable both the Court and the Contracting Parties to differentiate the level of protection that is offered by Article 8 in immigration cases, while providing sufficient guidance to national decision-making authorities and judiciaries so that they can efficiently and effectively exercise the primary role they play in the protection of the right to respect for family life in immigration cases.'

Friday 17 May 2019

New Book on the ECHR and Military Operations

Stuart Wallace of the University of Cambridge has published a new book on 'The Application of the European Convention on Human Rights to Military Operations' with Cambridge University Press. The book gives a systematic overview of the key discussions on the topic in the past years, including of course extraterritorial application of the ECHR, but also substantive and procedural obligations under the right to life, and derogations, amongst others. This is the abstract:

'The European Convention on Human Rights is being applied to military operations of every kind from internal operations in Russia and Turkey, to international armed conflicts in Iraq, Ukraine and elsewhere. This book exposes the challenge that this development presents to the integrity and universality of Convention rights. Can states realistically investigate all instances where life is lost during military operations? Can the Convention offer the same level of protection to soldiers in combat as it does to its citizens at home? How can we reconcile the application of the Convention with other international law applicable to military operations? This book offers detailed analysis of how the Convention applies to military operations of all kinds. It highlights the creeping relativism of the standards applied by the European Court of Human Rights to military operations and offers guidance on how to interpret and apply the Convention to military operations.' 

Monday 13 May 2019

Summer School on Protection of Fundamental Rights in Europe

As every year, the University of Bologna, King’s College London and the University of Strasbourg are co-organising a summer school on “The Protection of Fundamental Rights in Europe” from 23-28 June. The 19th edition of this long-running course is hosted again in the Castle of Bertinoro and focuses on the protection of fundamental rights in both the EU and ECHR systems. This is the announcement on the website:

'The Summer School aims to provide graduates, practictioners and young researchers (Ph.D. candidates) with an in depth background of the protection of fundamental rights at European level. The general courses are about the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. The single modules tackle topics alike asylum and migration, EU citizenship, relationship between the CJEU and the ECHR, the margin of appreciation doctrine, constitutional transitions and religious freedom.

The course is composed by 30 hours of frontal lectures from Monday to Friday 9:00-13:30 and 15:00-16:30. The teaching method encourages students to have a proactive dialogue with lecturers.' 

All information can be found here.

Friday 10 May 2019

Analysis: The Strasbourg Court's First Advisory Opinion under Protocol 16

On 10 April, the European Court of Human Rights in Strasbourg handed down its first advisory opinion on a substantive issue under the European Convention on Human Rights (ECHR), a competence given to the Court under Protocol 16 to the Convention. The opinion, delivered upon the request of the French Court of Cassation, related to a very specific family law matter, namely ‘the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother’, as the Court phrased it.

A new judicial tool

The advisory opinion procedure is a new power in the Court’s toolkit. Protocol 16, which entrusts the Court with the power to hand down these opinions was negotiated with the aim of enhancing interaction between the Court and national authorities – specifically domestic Courts. The Protocol entered into force on 1 August 2018 and enables the highest courts of State Parties to the Protocol to request the Court to give an advisory opinion on “on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto” (Article 1 of the Protocol). Thus, it serves to elucidate the substantive provisions of the ECHR in order to give guidance to domestic courts in their own judicial task. In this sense, it is a relatively unique feature of interaction between national and international courts, comparable to a certain extent to the preliminary ruling procedure of the Court of Justice of the European Union (EU). One of the key differences being that in the EU context lower courts can also ask questions and highests courts in some cases are obliged to ask questions.

The European Court of Human Rights is best known for its work in contentious proceedings, both between alleged victims of human rights violations and states and in inter-state cases. Its rulings in such cases are binding, just like in instances of deciding upon interim measures. Before the entry into force of Protocol 16, the Court did already have the possibility to give advisory opinions, but these could only be delivered upon request of the Council of Europe’s Committee of Ministers and could not relate to the Convention’s substantive rights. They concerned, for example, procedural issues such as the election of judges to the Court. In the case of the new advisory procedure both the audience, scope and aims are thus different. 

As the Explanatory Report to Protocol 16 clarifies, the new procedure aims to serve two purposes: fostering the dialogue between courts and strengthening the constitutional role of the European Court. Both in turn are geared towards a more effective protection of the rights laid down in the ECHR. Thus the procedure should enable domestic courts to directly include ECHR benchmarks into their judicial decision-making – without waiting for an alleged victim to litigate a case all the way to Strasbourg – and it would enable the European Court to focus on issues of interpretation of the Convention, leaving the detailed context-specific decision to the domestic court. The idea was both to help speed up fundamental rights litigation, increasing the cooperation between the two levels of courts, and to prevent large amounts of (often repetitive) cases from piling up in Strasbourg by ‘solving’ them at the national level. This latter goal is closely tied to the increased emphasis on subsidiarity in the past years, trying to resolve issues at the national rather than het European level. It does, of course, lead to a slight reshuffling of roles. And that is exactly the reason why this first Advisory Opinion under Protocol 16 was so highly anticipated.

Background of the case

The case originated in the voyage of Dominique and Sylvie Mennesson, a French married couple, to California. They concluded a gestational surrogacy agreement with a woman there, using the gametes of Mr Mennesson and the egg of a female friend, as Mrs Mennesson was infertile, to create an embryo by way of IVF. The surrogate mother gave birth to twins in 2000. In a ruling, the Supreme Court of California recognised Mr Mennesson as the genetic father and Mrs Mennesson as the legal mother of the two girls. This formal recognition was reflected in the subsequent birth certificates. The legal troubles started when the parents asked the French authorities to transcribe the American birth certificates into the civil status register. The French authorities refused such a transcription, as they deemed it contrary to public policy. Surrogate motherhood was forbidden in France. 

Eventually, in 2011, the Mennesson family took their case to the European Court, alleging violations by France of the rights to respect for private life and family life. The judgment in the Mennesson case was delivered in 2014. The Court held that the family life of the four (parents and children) had not been violated, but it did find a violation of the right to respect for private life of the two daughters under Article 8 ECHR. It held that it was not in the best interests of the children, especially of their right to identity, to deprive them of legal recognition due to the restrictions in French law, especially since Mr Mennesson was also the biological father. 

Since that judgment, the Court of Cassation in France adjusted its case-law, enabling recognition by birth certificate transcription of at least the biological father in such situations, but not the mother when she was not the biological mother. Moreover, the Mennesson family had to apply for a revision of the earlier refusal to transcribe, so their legal fight was far from over yet. In the proceedings following that revision request, the Court of Cassation decided, and it was the first in Europe to do so, to avail itself of the new Advisory Opinion procedure in Strasbourg. The French court, in its request, clarified that for the mother alternatives to the birth certificate transcription existed: for intended mothers who were married to the recognised father, adoption of the children was possible. The issue was basically whether such an alternative was sufficient under Article 8 ECHR. As one commentator noted, even if the Court of Cassation itself presented the move as an opportunity to enter into institutional dialogue with the European Court, one of the aims of Protocol 16, it could also be seen as a “sign of caution” in a sensitive and complicated issue, in which the French authorities had earlier failed to comply with the ECHR.

The substance of the Opinion

On 12 October 2018, the Court of Cassation sent its request to the European Court, which accepted it early December. It asked two questions. The first was whether the refusal by the French authorities, in the particular circumstances of the case, meant that France was “overstepping its margin of appreciation” under Article 8 ECHR (and whether it mattered legally whether a child was conceived using the eggs of the ‘intended mother’ or not). The second question was, if the first question was answered affirmatively, whether adoption as an alternative would mean Article 8 was complied with.

On the first question, the European Court reiterated that, just like in its original Mennesson judgment, the child’s best interests was a particularly weighty factor in deciding such cases. And, in addition, it would look at the margin of appreciation. On the first factor it noted that the lack of recognition of the legal relationship between mother in children has a negative impact of various aspects of a child’s life. The absolute impossibility for registration as in the French case, made it impossible to examine a situation to “be examined in the light of the particular circumstances of the case” (para. 42). On the factor of the margin of appreciation, the Court noted that – based on a comparative-law survey it undertook, there as no consensus in Europe on the issue. This would normally mean, especially in the field of moral and ethical issues, a wide margin of appreciation for states. However, the fact that particularly important aspects of the right to respect for private life were at stake reduced the margin of appreciation. The Court concluded on this point that “the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”” and that this would apply “with even greater force” (para. 47) in cases when a child was conceived using the eggs of the “intended mother.”

This conclusion made an answer to the second question necessary. On that point, the Court held that alternatives to transcription into a birth registry, such as adoption, may be used “the child’s right to respect for private life within the meaning of Article 8 of the Convention requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”.” Here State Parties to the ECHR have a larger margin of appreciation, the second point relates not to the issue of ‘whether’ but rather of ‘how’ to comply with the Convention. Specifically, the European Court held that recognition of the relationship (between children and intended mother), if legally established abroad, should be possible at the latest when the relationship had become a practical reality. This should be possible under a procedure laid down in national law and implementation of such alternatives should be prompt and effective. It is then for domestic courts to decide whether in a particular context these requirements are met.

Judicial signalling

What then to make of this very first Advisory Opinion? It is important to note that the significance of the Opinion certainly stretches far beyond the possible usefulness for the Mennesson family. Substantively, it is of course important that the Grand Chamber of the European Court clearly tried to formulate answers that should be useful to the domestic court at hand. In a step-by-step fashion it went into the two questions posed to it by the French Court of Cassation and attempted to provide clarity. Whether this has been achieved is debatable. Yes, in the sense of indicating that a full refusal would violate the Convention but that the provision of effective alternatives such as adoption would comply with it. No, in the sense that – just like a fractal on which one zooms in – the challenges are just transferred to different, more detailed issues (when does a relationship become a “practical reality”; what is a ‘prompt and effective’ alternative etc.). The Opinion has therefore already met with some criticism.  

In order to assess which view makes more sense, it is important to go back to the goals of the Advisory Opinion procedure: the dialogue between courts and strengthening the constitutional role of the European Court. On these issues the Court itself dedicates some preliminary considerations in the Opinion itself. It states that the very goal of the procedure is not to transfer the dispute to the European level, but rather to provide guidance to national courts, so that the latter can adjudicate on the matter. Entirely in line with the subsidiarity principle, domestic courts can use (or not use) the advice of the European Court as they see fit. In trying to formulate relatively general answers and identify weighing factors, the Court in Strasbourg does really try and put on its constitutional cloak. At the same time, this is done in a very delimited way: opinions under this procedure must be confined to “points directly connected to the proceedings at domestic level” (para. 26). The efficiency gains are then made through European guidance that national courts can subsequently use in similar cases. Those who were hoping for a type of lengthy general comment, in the vein of United Nations human rights treaty bodies, on the issue of gestational surrogacy arrangements will thus be disappointed by this relatively short Opinion of the Court.

Apart from these explicit considerations in the text of the Opinion itself, the Court also undertakes an exercise in judicial signalling to ECHR State Parties in other ways. The first issue of note for a genuine dialogue is of course that the request for an Opinion was accepted by the Court – a rejection of the very first attempt – the Court is not obliged to accept all request – would have been very awkward signposting, especially as many States have not yet ratified Protocol 16. 

Secondly the timing is notable: the Court dealt with the issue in a very swift way (virtually all judgments of the Court take much longer), with less than six month elapsing between request for and delivery of the Opinion. Although one may note that by now the twin girls, born in October 2000, are now 18 year-olds – that is how long legal battles may take – and the Court de Cassation has not even decided yet of course. Those six months were used to provide maximum input, as allowed under Protocol 16 (input was received from the Mennesson family, as well as written interventions by three other State Parties and several other institutions and NGOs), but without losing time by way of an oral hearing. The comparative-law research was also done within that relatively short-time span. The signal here to domestic court seems to be: yes, using this procedure will halt your domestic case, but this pause will be kept as short as possible. The signal to possible interveners seems to be: input welcome, but swiftly please. And the Court also in this first Opinion explicitly states about such written observations that “its task is not to reply to all grounds and arguments submitted to it or to set out in detail the basis for its reply” (para. 34). Again, the self-identified role here seems to be: trying to be useful to domestic courts, swiftly and to the point.

In conclusion, the Advisory Opinion certainly does not solve all issues related to gestational surrogacy.  But what it does represent is an attempt to provide useful and relatively quick decision-making tools, handed down by an international court in its constitutional cloak to the highest domestic courts that find it useful to ask for it.

This blogpost is a cooperation between the IACL-AICD Blog and the ECHR Blog.