Abstract
Judges may spend their professional lives conscientiously, haunted by doubt about their decisions, without being led to wonder why litigants would come to somebody they do not know but are willing to trust and whose decisions they are prepared to accept. This question appears both fundamental and unsettling.
Judge, European Court of Human Rights.
I would like to thank my intern Anna-Lisa Jepsen for her assistance.
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- 1.
… to whom, as a sign of the mission with which he invested them, he handed over his robe. The togas worn by the judges are a vestige of those times; Garapon (1997), p. 79 et seq.
- 2.
Thuière (2004), p. 116.
- 3.
In the following, “European judge” exclusively designates the judge of the ECtHR and not of the Court of Justice of the European Union (“CJEU”).
- 4.
Madsen (2016), p. 174: “Although bashing the ECtHR is not new, the generalization of the discourse across Europe and its application to very different human rights situations is quite novel”.
- 5.
What a contrast to some passages of the Preamble to the Convention: “[…] common understanding and observance of the Human Rights […]”; “[…]common heritage of political traditions, ideals, freedom and the rule of law[…]”; “[…]collective enforcement […]”.
- 6.
von Bogdandy and Venzke (2012), pp. 21, 22. See also Bellamy (2014), p. 1035, who reflects on the feasibility of a system where a mistaken judgment by an international court would be overturned by a consensus among the representatives of the democratic governments. Before Protocol no. 11, which established the permanent jurisdiction of the Court, entered into force, Article 46 § 2 of the Convention enabled the member States to recognise its jurisdiction for a limited period of time only.
- 7.
It is not as if the Court’s authority had always been uncontested and the challenges to its authority recent. See Madsen (2016), who shows that in the early days of the Convention, the big European States were reluctant to accept its jurisdiction and that its first judgments were not easily accepted.
- 8.
If the CJEU faces less criticism than the Strasbourg Court, it may be mainly because it interprets EU law and only indirectly interferes in national legislation. Another factor may be that EU law is first and foremost a technical, economic law that does not include societal choices. This is already changing with the CJEU’s jurisdiction under the Charter of Fundamental Rights. Most importantly, while the main task of the CJEU is to assist the national courts in their work by providing an abstract answer to the questions referred to it for preliminary rulings, the Strasbourg Court exerts a real ex-post control over decisions made by national courts and sometimes directly contradicts them. This is something much less easy to accept. It is not uninteresting to note that those States which have the greatest difficulties in playing the game of the European Union, whether they are reluctant to enter or are about to leave, are also highly critical of Strasbourg.
- 9.
- 10.
…or constitutional courts, see the Russian example.
- 11.
- 12.
This is in open contradiction to Art. 46, § 1 of the Convention, which obliges States to abide by the judgments of the Court.
- 13.
Malcolm (2017), p. 21.
- 14.
Much depends on traditions: in the United Kingdom, for example, it is for parliament to have the last word, whereas in Germany, which has a strong and respected constitutional jurisdiction, the final say rests with the Federal Constitutional Court.
- 15.
Malcolm (2017), pp. 123–124.
- 16.
Cornu (2016).
- 17.
Fontaneau (2004), p. 205.
- 18.
In French, a language I am more familiar with, I would have used the word “adhésion”.
- 19.
Çalı et al. (2011).
- 20.
Donald and Leach (2016).
- 21.
Bentham (1948).
- 22.
- 23.
Donald and Leach (2016), p. 120.
- 24.
Whether the “Court” is to be considered an institution rather than a community of individual judges seems to be a matter of cultural perspective, see Garapon et al. (2008), p. 2.
- 25.
This is – of course – the program of a whole study that should be the subject of a book. The present contribution, much more modest, will confine itself to delivering some personal opinions and ideas. It can in no way engage the Court.
- 26.
The concept is extremely vague and difficult to define. It can be authoritarian and is focused more on equality than on liberty; see Ory (2017), pp. 36 and 59.
- 27.
- 28.
It has been stated that “properly speaking, democracy is a constitutional mechanism for arriving at decisions for which there is a popular mandate. But the Convention and the Strasbourg Court use the word in a completely different sense, as a generalised term of approval for a set of legal values which may or may not correspond to those which a democracy would in fact choose for itself” (Malcolm (2017), p. 44).
- 29.
Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
- 30.
ECHR, Art. 22.—As far as the role of the Parliamentary Assembly is concerned, see Donald and Leach (2016), p. 126.
- 31.
Çalı et al. (2011), p. 4, sub 4.1.A.
- 32.
Glazer (2003), p. 53 et seq.
- 33.
Pescatore (2000), p. 345.
- 34.
Pescatore (2000), p. 348.
- 35.
See, Rosanvallon (2008).
- 36.
Cf. Donald and Leach (2016), p. 132.
- 37.
…which can even trigger a change of a Constitution. In Switzerland, by a referendum of 9 February 2014 where the “yes” obtained a 50.3% majority, the federal authorities were obliged to enact a constitutional law that limits “mass immigration”. What would happen if 0.4% of the population changed their minds? The Swiss Constitution would have to be changed again…
- 38.
Expropriation without compensation is not per se in violation of the Convention, but is a strong indicator of the disparate allocation of burdens under Article 1 of Protocol 1; see, among many others, Sporrong and Lönnroth v. Sweden [GC] 23 September 1982, Series A No. 52, and Scordino v. Italy (n° 1) [GC], application no. 36813/97, ECHR 2006-V.
- 39.
Unfortunately, some statements by the Court could be understood as if the Court itself also weighed the two legitimacies against each other. See e.g. Draon v. France [GC], application no. 1513/03, ECHR 2006-IX where it states “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” (§ 108). Such a statement explains and justifies the margin of appreciation mechanism (see below). However, it seems excessive to suggest that judges would not enjoy “democratic” legitimacy.
- 40.
Çalı et al. (2011), p. 18, sub 6.1.A.
- 41.
ECHR, Art. 21, § 1: The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.
- 42.
When selecting their three candidates, States should ensure that their national procedure is fair and transparent, for example by issuing public and open calls for candidates. All candidates must have appropriate legal qualifications and experience and must have an active knowledge of either English or French and at least a passive knowledge of the other language. To help ensure candidates are fully qualified, an international panel of Council of Europe experts offers governments confidential advice on potential candidates before the final list of three is sent to the Assembly.
- 43.
Once the Assembly has received the list of candidates, a special committee of parliamentarians with legal experience interviews each of the three in person and scrutinises their CVs, in a standardised format, before recommending whether or not to accept the list – in other words, whether it believes all three candidates are sufficiently well qualified to do the job. If so, it indicates which candidates it believes are the strongest. If not, States are asked to submit a fresh list. The Parliamentary Assembly is not bound by the recommendation of the committee.
- 44.
For an exhaustive catalogue of the virtues of the judge, see Garapon et al. (2008).
- 45.
Çalı et al. (2011), p. 21 s., sub 6.1.C.
- 46.
See the Court’s guides on fair trial (civil limb and criminal limb), published on the Court’s website and online available at http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf and http://www.echr.coe.int/Documents/Guide_Art_6_criminal_ENG.pdf.
- 47.
Article 26 § 4.
- 48.
Cf. Nussberger (2018).
- 49.
Commaret (1998), p. 262. The word “distance” should not be misunderstood. It does not mean that the judge should not be interested in the case, quite to the contrary. If he or she should not take the matter at stake “personally” and remain autonomous, without any pressure and without bias, he or she should at the same time feel concerned (see Garapon et al. (2008), who identify “les vertus de distance (impartialité, renoncement, indépendance, désintéressement, effacement)”, op. cit., p. 20).
- 50.
At the level of the Grand Chamber, where the national judge sits a second time, the problem could also be avoided if the Court had two judges per country, in which case in the Grand Chamber, it would be the national judge who did not sit at Chamber level that could sit. Given current political and budget difficulties, it is hardly realistic to formulate such an idea… Beyond this wishful thinking, it should be noted that there are examples where a national judge changed his mind when sitting in the Grand Chamber (see e.g. the concurring opinion of Judge Bratza in Al-Khawaka and Tahery v. United Kingdom [GC] (application nos. 26766/05 and 22228/06, ECHR 2011-VI) highlighting the judicial dialogue with the national court that had taken place since the judgment of the Chamber).
- 51.
Of course, it depends on the various judicial traditions if one considers a judgment as a collective product or the sum of individual opinions. There is every reason not to exclude from this obligation the authors of dissenting opinions.
- 52.
The bar is generally favourable to this request: “What the judges do not really seem to understand is that any judicial decision, whatever it is, must be well motivated to be understood and consequently accepted by the litigant”, words attributed to the president of the bar Canellas by Jean-Jacques Barbiéri (Barbiéri (2004), p. 82). In the German language, there is a word that apparently has no equivalent in English or in French: the reasoning of the judge must be “nachvollziehbar”.
- 53.
Théron (2004), p. 100.
- 54.
Art. 26, §§ 4 and 5 ECHR.
- 55.
It has been called the “de facto Supreme Court of human rights in Europe” by Mikael Rask Madsen (Madsen (2016), p. 142).
- 56.
Çalı et al. (2011), p. 8, sub 4.1.B.
- 57.
While the Preamble of the Convention speaks of the maintenance as well as of the further realisation of human rights, there is no consensus on whether this is the task of the ECtHR or other bodies of the Council of Europe. Article 19 of the Conventions provides: “To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights[…]”. The Court has always understood the distinctive nature of the Convention as a human-rights treaty to compel a flexible and evolutionary teleological interpretation of its open-textured terms if the Convention is not to become progressively ineffective with time. It sees itself endowed with a duty to “develop” the substance of the rights themselves. Some doubt that this is the Court’s task: “The ‘développement’, or the ‘further realisation’, of human rights was an additional task which the Council of Europe set for itself – not for the Court as such. The task of the Court was to implement the actual rights defined in the Convention. In so doing, it was entitled to update the meanings of particular terms when those meanings had clearly changed over time. The ‘object and purpose’ of the Convention authorised that much evolutive interpretation – but, it must be emphasised, no more than that.” (Malcolm (2017), p. 75). However, even those who harshly criticize the democratic legitimation of judges to further develop human rights provisions opine that to be followed and identified with, the law must also be, in certain crucial respects, “the peoples’ law’ rather than merely ‘lawyers’ law’. As a result, the judiciary need to be in touch with the changing social circumstances or mores of those whom these judgments affect if they are not to make arcane, arbitrary, or unreasonable demands of citizens.” (Bellamy (2014), p. 1027. Of course, this mechanism is also criticised: “There are, it seems, no clear principles behind the Court’s use of ‘consensus’. Sometimes a very small majority suffices to establish it; sometimes a large one is declared insufficient. In some cases a survey of the existing situation among the member States is used; in others, appeal is made to an ‘emerging consensus’; beyond that, the principle can sometimes be extended to, or overridden by, an ‘international trend’, invoking conditions outside Europe, though on the basis of no statistical survey at all. Usually the consensus is about legal conditions and policies; sometimes, when it suits the Court, it can focus on scientific or philosophical issues instead. And the degree to which the consensus affects the margin of appreciation is itself quite variable”, Malcolm (2017), p. 59).
- 58.
See the speech delivered on 28 January 2013 by Justice Antonin Scalia of the U.S. Supreme Court at Dallas-based Southern Methodist University, stating that the U.S. Constitution is “not a living document” and that it is “dead, dead, dead”.
- 59.
Montesquieu (1777): “The judges of the nation are only the mouth that speaks the words of the law, inanimate beings, who cannot moderate either their strength or rigour”.
- 60.
“It also seems likely that in several instances, governments have been happy to “outsource” politically difficult problems to the Court in order to obtain an international judicial imprimatur for unpopular legal or policy reforms. Furthermore, the Court may reasonably be said to have contributed to “unifying” CoE member states, and thus to the realization of the broader objectives of the Council of Europe. […], thereby facilitating political and economic integration processes”, Shany and Noam (2014).
- 61.
von Bogdandy and Venzke (2012), p. 473. The German Federal Constitutional Court – whose legitimacy is beyond doubt – confirms that judicial law-making is part of the competence of supranational and international courts. It sees judicial law-making particularly warranted when it makes programs concrete (in the sense that it implements the normative project of a treaty), when it fills in legal gaps and when it solves contradictions. On the other hand, the said court considers judicial law-making likely to be ultra vires when it goes against what is clearly stated in the text, or when it creates new rights or obligations without sufficient justification in the relevant positive law. Judicial law-making is illegal in particular, according to the German court, if a supranational or international court lays new normative foundations or structurally alters the fundamental balance of power (von Bogdandy and Venzke (2012), p. 473 on a judgment by the German Federal Constitutional Court of 6 July 2010, 2 BvR 2661/06).
- 62.
See below, Sect. 2.2., The scope of the Court’s Judgments.
- 63.
Amos (2017), p. 767, who is of the opinion that the question of the value of the ECtHR must be distinguished from the question of its legitimacy.
- 64.
Amos (2017), pp. 763–785. In this context, the impact of Protocol no. 16 to the Convention, which endows the Court with a kind of “constitutional” role, should not be neglected.
- 65.
Çalı et al. (2011).
- 66.
Those who are hostile to the Court criticise it for interpreting the provisions of the Convention in an over-extensive manner, the biggest culprit in this respect being Article 8.
- 67.
It is interesting to note that the study on the acceptance of jurisdiction by legal professionals underlines that the professionals do not really challenge this instrument, Çalı et al. (2011), p. 12, sub 5.2.
- 68.
For example, the development of notions of torture, inhuman treatment and degrading treatment (Article 3) where the threshold for finding torture has been significantly reduced over the years and some treatments that were previously not subjected to criticism are now considered degrading treatments (see e.g. Bouyid v. Belgium [GC],28 September 2015, application no. 23380/09; Kraulaidis v. Lithuania, 8 November 2016, application no. 76805/16).
- 69.
Examples for Article 8: S. and Marper v. United Kingdom, 4 December 2008, application nos. 30562/04 and 30566/04, concerning the retention by the authorities of fingerprints and DNA samples taken from the applicants during criminal proceedings which did not result in their conviction; K.U. v. Finland, 2 December 2008, application no. 2872/02, about the publication of an advertisement of a sexual nature concerning a child on an Internet dating site; Fadeyeva v. Russia, 9 June 2005, application no. 55723/00, about environmental standards.
- 70.
Soft law can certainly be cited to support certain binding provisions, but legitimacy problems arise where European judges arise when they base a decision exclusively or mainly on such a non-binding text, thus transforming soft law into hard law.
- 71.
Wiśniewski (2016), pp. 103–110, citing Mahoney (1999), p. 78. See also Gomułowicz (2014), p. 139: “The relationship between truth and justice is perhaps the most difficult problem relating to the essence of judicial practice, and it is clear the this issue cannot be resolved without judicial activism”.
- 72.
One could also refer, in this context, to Article 35, § 3 b) which empowers the Court to declare inadmissible an application if the applicant has not suffered a significant disadvantage, ‘unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits’.
- 73.
Fyrnys (2012), p. 329 at 331 and 332.
- 74.
Hirst v. The United Kingdom (No. 2) [GC], 6 October 2005, application no. 74025/01.
- 75.
- 76.
The right to ask such questions will be limited to the highest courts and tribunals designated by the States which will be parties to Protocol no. 16 (see Art. 1 and 10 of the Protocol). As the opinions of the Court will be advisory, they will not be binding on any court, even not on those which will have referred the question. However, here again, the opinions will enjoy, at least, a persuasive authority which will be unlikely to be limited to the courts having asked for the opinion and even to the authorities of the States that will be parties to Protocol no. 16.
- 77.
…notwithstanding the request that an advisory opinion may only be sought in the context of a pending case before the requesting court. In that sense, the relationship between a concrete case and an abstract response seems to be quite similar to the preliminary ruling system before the CJEU.
- 78.
On the other hand, in some very specific circumstances, it happens that the Court stops dealing with individual cases if the legal issue has been clearly defined in a previous pilot judgment and if the issue is about the failure, by the domestic authorities, to take general measures following the said judgment rather than individual measures of redress, see Burmych and others v. Ukraine [GC], 12 October 2017, application nos. 46852/13, 47786/13, 54125/13 et al.
- 79.
Cf. Radomilja and others v. Croatia [GC], 20 March 2018, application nos. 37685/10 and 22768/12.
- 80.
… by the way, also of national judgments, above all of constitutional or national administrative courts.
- 81.
See the Court’s guides on fair trial (civil and criminal limbs), cited above.
- 82.
Article 47 of the Rules of the Court, amended on different occasions (17 June and 8 July 2002, 11 December 2007, 22 September 2008, 6 May 2013, 1st June and 5 October 2015).
- 83.
See e.g. Kemp v. Luxembourg, n° 17140/05, 24 April 2008; RTBF v. Belgium, n° 50084/06, 29 March 2011; Miessen v. Belgium, n° 31517/12, 18 October 2016; Kuznetsov and others v. Russia, 13 March 2018, nos. 24970/08 and 56354/09.
- 84.
European Court of Human Rights (2018).
- 85.
See, among many others, Council of Europe (2015).
- 86.
…all the more foolish as some member States have reduced or even stopped their financial contribution to the Council of Europe’s budget.
- 87.
Spano (2017).
- 88.
Handyside v. United Kingdom [plen.], application no. 5493/72, 7 December 1976, § 48.
- 89.
The notion is well known in French administrative law. If the judges were themselves called upon to take the decision, they might have taken a different one, but the administration made an assessment which remained within the limits of what the judges could accept.
- 90.
Buckley v. United Kingdom, application no. 20348/92, 25 September 1996, § 74; Garib v. Netherlands [GC], application no. 43494/09, 6 November 2017, § 137.
- 91.
Villiger (2007).
- 92.
Handyside v. United Kingdom, [plen.], application no. 5493/72, 7 December 1976.
- 93.
S.A.S. v. France [GC], application no. 43835/11, 1st July 2014, § 154 (Integral islamic veil in public space).
- 94.
Lautsi v. Italy [GC], application no. 30814/06, 18 March 2011, § 68 (Christian cross in classrooms).
- 95.
A, B and C v. Ireland [GC], application no. 25579/05, 16 December 2010, § 97 (abortion).
- 96.
Paradiso and Campanelli v. Italy [GC], application no. 25358/12, 24 January 2017, § 179.
- 97.
See a recent definition of the margin of appreciation mechanism in an Article 8 case: “…the Court has generally understood the margin of appreciation to mean that, where the independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for it to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so”, Ndidi v. United Kingdom, application n° 41215, 14 September 2017, § 76.
- 98.
Perinçek v. Switzerland [GC], application no. 27510/08, 15 October 2015, §§ 199, 274 and 279.
- 99.
Nussberger (2017).
- 100.
The presumption mechanism entails dangers too. Cf. Arnardottir (2017), pp. 9–35 at 35: “[…]should the Court want to continue to develop presumptions of Convention compliance where it has previously performed its own proportionality assessments, it would be well advised to elaborate the relevant presumption, what is needed to rebut it, and whether or not it has been rebutted in an individual case – instead of oscillating between full deference and own assessments like it currently often seems to do in practice. It should also be kept in mind that the path it seems to be embarking upon in this respect lays it bare to new challenges in terms of the legitimacy of its judgments. Issues of quality and consistency can be raised (what triggers the new approach, what is needed for complete deference, what is needed for rebuttal, etc.); it seems clear that questions of double standards may be raised (why is the presumption applied/rebutted, in some judgments and not others); and it should also be pointed out that if the margin of appreciation can be criticized as a tool to evade the Court’s judicial responsibility, the same criticism would seem to apply a fortiori to presumptions of Convention compliance. […] Opening up the margin of appreciation, while still exercising the Court’s authority to have the final say on the merits, could send the same signal without risking the problems identified above”.
- 101.
Spano (2014b), pp. 487–502.
- 102.
E.g. in the field of the wearing of the integral veil in public space, S.A.S. c. France [GC], [GC], application no. 43835/11, 1st July 2014; Dakir v. Belgium, 11 July 2017, application no. 4619/12; Belcacemi and Ouassar v. Belgium, 11 July 2017, application no 37798/13; of the obligations of the authorities in the field of euthanasia, Lambert c. France [GC], application no. 46043/14, 5 June 2015; in the field of the ban on political advertising on television and radio, Animal Defenders v. UK [GC], application no. 48876/08, 22 April 2013.
- 103.
X. v. Latvia, [GC], application no. 27853/09, 26 November 2013, § 102; Garib v. The Netherlands, GC], application no. 43494/09, 6 November 2017, § 157.
- 104.
Spano (2014a).
- 105.
V. Vuckovic v. Serbia [GC] application nos. 17153/11 et al., §§ 69 et seq.
- 106.
Ibrahim and others v. United Kingdom [GC], application nos. 50541/08, 50571/08, 50573/08 and 40351/09, 13 September 2016.
- 107.
Roman Zakharov v. Russia [GC], application no. 47143/06, 4 December 2015 (secret surveillance).
- 108.
Von Hannover v. Germany (n° 2) [GC], application nos. 40660/08 and 60641/08, 7 February 2012.
- 109.
Barbulescu v. Romania [GC], application no. 61496/08, 5 September 2017.
- 110.
See Barbulescu v. Romania [GC], application no. 61496/08, 5 September 2017, §§ 131 et seq, where the domestic courts stated the different criteria but failed to apply them to the facts of the case.
- 111.
This should not be misunderstood. It is not the Court’s task to set in advance and in an abstract way the boundaries of the margin of appreciation. It can only do so ex post, in a given case, and examine whether a national court has respected its margin of appreciation or not. This then becomes case law which gives the national courts guidance in subsequent cases.
- 112.
Despite the term “proportionate” which in principle raises the question of proportionate to what, the proportionality test does not imply a comparative exercise.
- 113.
Some consider that, where it is a question of balancing two rights in conflict, the margin of appreciation has no place: “One might have expected the Court to argue the precise opposite: a situation where the basic rights of individuals are in conflict is precisely the sort of case in which the Court itself, as the guardian of those rights, needs to investigate closely and make its own decision on every aspect of the matter. Where those decisions are easy to make, it might have said, assessment of the relevant factors may more safely be left to the state, but in these difficult cases judicial self-restraint is not appropriate”, Malcolm (2017), p. 47 in fine.
- 114.
About the margin of appreciation: “In one and the same case, we find the following views: that the margin was wide because of factual complexity and the difficulty of examining all the circumstances in commercial matters; that the state remained within the margin because its arguments about points of principle were correct; that the Court had a duty to examine all the circumstances in commercial matters, which meant that there was no margin; that the margin must be smaller in commercial matters because the dispute there is between private interests, not involving calculation of the general interest by the state; and that, on a point of principle, there should be no margin at all in such a case”, Malcolm (2017), p. 49. About the proportionality test: “We are in the realms of ‘balancing’, trying to establish just how much of this right should be taken as the equivalent of that countervailing right or interest, so that a little extra weight on the countervailing side will justify a little interference, and a larger amount will justify interference to a greater extent. As the standard modern work on proportionality points out, there are various choices and decisions to be made here, into each of which an element of subjectivity can enter: choosing which interests should be taken as the relevant ones on both sides, deciding whether this interest is intrinsically more important than that one, assessing whether each of the relevant interests is strongly or weakly engaged in this particular situation, and then performing the final comparative measurement, when there is no real common scale on which to place the two (or more) things”, Malcolm (2017), p. 28.
- 115.
Some judges openly make such calculations, see common separate opinion by Judges Yudkivska, Vehabović and Kūris in Radomilja and others v. Croatia [GC], 20 March 2018, application nos. 37685/10 and 22768/12.
- 116.
Ravarani (2010), p. 355 et seq.
- 117.
E.g. for the United Kingdom, Amos (2017), p. 773: “In 2015, 575 applications against the UK were allocated to a judicial formation and 720 were allocated in 2014. In 2015, 13 judgments were delivered concerning the UK, with four judgments finding at least one violation and nine judgments finding no violation. Also in 2015, 136 interim measures sought under Rule 39 against the UK were refused”. There are very important issues where the Court did not find a violation, e.g. in the judgment about “kettling” techniques to contain demonstrations, Austin v. U.K., [GC], 15 March 2012, application nos. 39692/09, 40713/09 and 41008/09.
- 118.
Ory (2017). The author identifies three elements that characterise populism: a fundamental postulate of a confiscated popular sovereignty, a strong identification with a national community and a clear personalisation of leadership, the ideal model of populism locating in such personalisation the place where its contradictions can be solved (p. 46). The national State appears to be the ideal vehicle for federating such feelings, the ideal victim being of course an international organisation, especially if it exercises some authority over the national State’s institutions. It is apparently essential for any human being to have somebody on whom to concentrate his hatred (see Einstein and Freud (1996)).
- 119.
The criticisms stem from the premise that the national legislator and, consequently, the framework of the national State, is the supreme body for the expression of the will of the people, sweeping away other less contingent and sometimes artificial frameworks to obtain, and to take into account, the will of the people. Cf. Bellamy (2014), p. 1030 s.; Donald and Leach (2016), p. 131.
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Ravarani, G. (2019). Some Reflections on the Legitimacy of the Strasbourg Judge. In: Selvik, G., Clifton, MJ., Haas, T., Lourenço, L., Schwiesow, K. (eds) The Art of Judicial Reasoning. Springer, Cham. https://doi.org/10.1007/978-3-030-02553-3_10
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