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The Acceptability of the Rulings of the European Court of Human Rights

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The Art of Judicial Reasoning

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Abstract

I have to confess that it was with some trepidation that, in 2005 at the start of my function as President of the newly instituted, and now already defunct, European Union Civil Service Tribunal in Luxembourg, I awaited the appointment that was to be set up with Carl Baudenbacher in order to explore the possibility of organising a working meeting between our small Tribunal and his EFTA Court. Who was this man, I wondered, who could take on the job of succeeding the mythical and monumental Icelander, Thór Vilhjálmsson as President of the EFTA Court? When, very soon after my arrival in Luxembourg, I did meet Carl, at an official dinner of the EFTA Court, I discovered the congenial, cultured and dynamic reality of “this man”. What followed was a still continuing history of family friendship. This modest article on one aspect of judicial reasoning—namely, whether the acceptability of a court’s ruling should enter into the decision-making process of judges—is dedicated to Carl in thanks for that friendship, as well as being an expression of respect for his professional achievements.

Former President of the European Union Civil Service Tribunal, and former United Kingdom Judge at the European Court of Human Rights.

A revised version of the opening lecture of the 2014 Venice Academy of Human Rights, organised by the European Inter-University Centre for Human Rights and Democratisation in Venice in July 2014. That lecture was itself largely the product of a seminar held in Strasbourg in May 2014 as part of a series organised by an informal group of European public lawyers, the theme of the seminar and its introductory intervention coming from Andre Potocki, the French Judge on the European Court of Human Rights. Although not expressly naming the source of every idea borrowed, I gladly acknowledge that I have drawn on points made by participants at that seminar. I was also greatly assisted by research carried out by Victoria Chernychuk, a member of the Research Department of the Registry of the Strasbourg Court, assistance that extended not only to case-law and academic references but also to contribution of ideas and analysis.

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Notes

  1. 1.

    Quoted in Bingham (2010), pp. 20–21.

  2. 2.

    Wording inspired by the background note for the seminar mentioned on the opening page of this article.

  3. 3.

    The word “act” is understood as including omissions wherever the ECHR imposes on the Contracting States a positive obligation to act in order to secure the guaranteed rights.

  4. 4.

    The Strasbourg Court has had no difficulty in acknowledging that there are inherent limits on its powers of review – see, e.g., as early examples, the Belgian Linguistic case (merits), 13 July 1968, Series A No. 6, §10 in fine; Handyside v. United Kingdom, 7 December 1976, §48; and Ireland v. United Kingdom, 18 January 1978, Series A No. 25, §207.

  5. 5.

    Mahoney (2008), pp. 313–349.

  6. 6.

    Terris et al. (2007), p. 205, quoting the sentiment of one international judge.

  7. 7.

    Point made by Professor John Bell of Cambridge University at the seminar mentioned at n. 1 above.

  8. 8.

    See, e.g., the papers in Flogaitis et al. (2013); and Dzehtsiarou (2015) ch. 6, which reviews the various challenges facing the Strasbourg Court’s legitimacy and the criticisms directed against the Court in that connection.

  9. 9.

    Çalı et al. (2011), pp. 6, 35–36. See, by the same authors, Çalı et al. (2013), pp. 955–984.

  10. 10.

    Feldman (2013), p. 220.

  11. 11.

    As regards, e.g., the United States of America, see the oft-quoted dictum of the Supreme Court (Chief Justice Marshall) in 1819 in McCulloch v. State of Maryland 17 U.S. (Wheaton) 206 at 405–407, 415 that ‘we must never forget that it is a constitution we are expounding, a constitution intended to endure for ages to come’; and the statement one hundred years later by the same Court in Weens v. United States 217 U.S. 349 at 373 (1910): “Time works changes, brings into existence new conditions and new purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave birth to it.”

  12. 12.

    The living-instrument doctrine was first affirmed by the Strasbourg Court in Tyrer v. United Kingdom, 25 April 1978, Series A No. 26, where the issue was whether judicial corporal punishment (in the Isle of Man) could be regarded as degrading treatment, contrary to Article 3 ECHR. See Mahoney (2005); and, more generally, Bjorge (2014).

  13. 13.

    To this analysis, made by Feldman (2013), one could add: “the principle of legal certainty … is necessarily inherent in the law of the [ECHR] as in [European Union] law”: Marckx v. Belgium, 13 June 1979, Series A No. 31, §58.

  14. 14.

    See, e.g., Zwart (2013); Bürli (2013), pp. 71–95 and 135–146, respectively.

  15. 15.

    Mahoney (2016).

  16. 16.

    See, e.g., Spielmann (2014) citing the judgments delivered in X. v. Austria, application no. 19010/07, 19 February 2013 (concerning the legal status of families with parents of the same sex); and Del Rio Prada v. Spain [GC], application no. 42750/09, 21 October 2013 (concerning postponement, as a result of new case-law by the Supreme Court, of the date of final release of a person convicted of terrorism) – both judgments reported in ECHR 2013: “The role of a Court such as ours, unless it were to depart from its intended mission, is not to be popular. Sometimes it is even necessary to cause displeasure.”

  17. 17.

    Article 1 ECHR, which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in … this Convention”.

  18. 18.

    Article 19 ECHR, which 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 …’.

  19. 19.

    Article 46 (§§1 and 2) ECHR, which provides: ‘1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution’.

  20. 20.

    The notion of subsidiarity appeared very early on in the Strasbourg case-law, in the Belgian Linguistic case (merits), 13 July 1968, Series A No. 6, §10. Mention of the principle of subsidiarity will be incorporated in the Preamble to the ECHR once Protocol No. 15 comes into force. Among the vast mass of scholarly writings on the principle of subsidiarity, see, as two recent examples: Spano (2014) and Mowbray (2015).

  21. 21.

    See, inter alia, the Strasbourg Court’s written observations submitted to the Brighton Conference (2012).

  22. 22.

    Dzehtsiarou (2015), p. 1. See also similar observations made in Mahoney (2009a).

  23. 23.

    Point made by Guido Raimondi (President of the Strasbourg Court) at the seminar mentioned at n. 1 above.

  24. 24.

    Tinsley v. Milligan [1994] 1 A.C. 340.

  25. 25.

    See Tony Weir (1936–2011) in Weir (1996), reproduced in Weir (2012).

  26. 26.

    Sir Frederick Pollock (1845–1937) in Pollock (1929).

  27. 27.

    Baudenbacher (2018).

  28. 28.

    See, e.g., the summary of the view expressed in 2003 by speakers at an international symposium held in Graz (Austria) – in Rodger (2003), p. 151; Lord Rodger was a judge on the United Kingdom Supreme Court: “The [Strasbourg] Court plays a crucial role in developing the law of human rights in the countries of the Council of Europe. The highest national courts would only respect the Court’s judgments and strive to apply its jurisprudence, however, if they could see that the judgments were indeed carefully, cogently and consistently reasoned. That was not always the case at present.”

  29. 29.

    Delzangles (2009), p. 402. Unofficial translation into English by the present author from the original, which reads: “(…) en donnant [aux gouvernements européens] le sentiment que le système européen qu’ils ont créé leur échappe totalement, la Cour risquerait de provoquer ou d’aggraver leurs réticences à appliquer la Convention. Développer une relation conflictuelle avec les Etats parties irait à l’encontre non seulement de la protection des droits individuels mais aussi de l’affermissement de l’autorité de la Cour.”

  30. 30.

    Beginning with Airey v. Ireland (merits), 9 October 1979, Series A No. 41, §24, where the applicant, who came from a humble family background, complained of the inaccessibility of the remedy of judicial separation for a person such as herself. See Kudla v. Poland [GC], application no. 30210/96, ECHR 2000-XI, §§152 in fine, 155, for the extension of “effectiveness” reasoning from the substantive content of the guaranteed rights and freedoms to the functioning of the ECHR system itself – where it was held that Article 13 ECHR required a Contracting State to make available a domestic remedy to complain about unreasonable length of civil or criminal court proceedings (as guaranteed by Article 6§1 ECHR).

  31. 31.

    Marckx v. Belgium, 13 June 1979, Series A No. 31 (which concerned the legal status of unmarred mothers and children born out of wedlock), §58.

  32. 32.

    The quotation is from Defrenne v. Sabena, 8 April 1976, Reports 1976, p. 480.

  33. 33.

    E.g., Ünal Tekeli v. Turkey, CORRECT application no. 29865/96, ECHR 2004-X (extracts), §67 (in relation to the repercussions of changing the traditional system of family names).

  34. 34.

    E.g., Macdonald v. United Kingdom, application no. 4241/12, 20 May 2014, §§54-58 (concerning the withdrawal of an allowance for handicapped persons); N. v. United Kingdom [GC], application no. 26565/05, ECHR 2008-III, §44 (in relation to provision of health care to illegal aliens).

  35. 35.

    McGuinness v. United Kingdom (admissibility decision), application no. 39511/98, ECHR 1999-V, p. 490.

  36. 36.

    Vogt v. Germany, 26 September 1995, Series A No. 323, §59 (concerning the dismissal of a teacher from the civil service on account of her political activities on behalf of the German Communist Party, but where a violation of the ECHR was nevertheless found to have occurred).

  37. 37.

    Leyla Sahin v. Turkey [GC], application no. 44774/98, ECHR-2005-XI, §116 (concerning a ban on wearing religious symbols in universities).

  38. 38.

    Rekvényi v. Hungary [GC], application no. 25390/94, ECHR 1999-III, §41 (concerning a ban on political activity by police officers); Zdanoka v. Latvia [GC], application no. 58278/00, ECHR 2006-4, §§133-134 (concerning disqualification from standing in parliamentary elections on account of participation in a political party, given the latter’s involvement in an attempted coup d’état); Tanase v. Moldova [GC], application no. 7/08, ECHR 2010-III (extracts), §§173-174 (concerning a ban on multiple nationals sitting as members of Parliament).

  39. 39.

    Murphy v. Ireland, application no. 44179/98, ECHR 2003-IX, §§73-75 (concerning prohibition of the broadcasting of religious advertisements).

  40. 40.

    See, e.g., Taxquet v. Belgium [GC], application no. 926/05, ECHR 2010-VI, §91 (concerning the provision of adequate procedural safeguards to enable the accused to understand the lay jury’s guilty verdict in criminal proceedings); Kress v. France [GC], application no. 39594/98, ECHR 2001-VI, §78 (concerning procedure before the French Conseil d’Etat).

  41. 41.

    Mahoney (2009b), citing Costa (1998), p. 206: “[L]es Etats et leurs juges nationaux suivront d’autant mieux la jurisprudence de la Cour qu’elle sera accessible, rationnelle, lisible, bref credible”.

  42. 42.

    Airey v. Ireland (merits), 9 October 1979, Series A No. 41, §24 (where the complaint was directed against practical rather than legal obstacles on access to court, as guaranteed by Article 6§1 ECHR).

  43. 43.

    To take but one well known example, see Soering v. United Kingdom, 7 July 1989, Series A No. 161, §87 (concerning extradition to the United States of America to face a first-degree murder charge, with the likelihood of a long wait on death row): “In interpreting the [ECHR], regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms …. Thus, the object and purpose of the [ECHR] as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective …”.

  44. 44.

    See, as early authorities, Delcourt v. Belgium, 17 January 1970, Series A No. 11, §31 (concerning the participation of a member of the Procureur général’s department in the deliberations of the Court of Cassation); and Deweer v. Belgium, 27 February 1980, Series A no. 35, §38 (concerning the issue whether a shopkeeper’s waiver of his right to trial before a criminal court had been obtained by constraint).

  45. 45.

    Mention of the margin of appreciation, along with that of the principle of subsidiarity, will likewise be added to the Preamble to the ECHR once Protocol No. 15 comes into force (see n. 24 above).

  46. 46.

    See, e.g., Lithgow and Others v. United Kingdom, 8 July 1986, Series A No. 102, §122 (concerning legislation nationalising the shipbuilding and aircraft industries); Carson and Others v. United Kingdom [GC], application no. 42184/05, ECHR 2010-II, §61 (concerning absence of uprates of State retirement pensions on the ground of non-residence in the country); Stummer v. Austria [GC], application no. 37452/02, ECHR 2011-V, §89 (concerning non-affiliation of working prisoners to the State old-age pension scheme).

  47. 47.

    A, B and C v. Ireland [GC], application no. 25579/05, ECHR 2010-VI, §§226-227, 233.

  48. 48.

    Parillo v. Italy [GC], application no. 46470/11, 27 August 2015, ECHR 2015.

  49. 49.

    S.H. and Others v. Austria [GC], application no. 57813/00, ECHR 2011-V, §114.

  50. 50.

    Schalk and Kopf v. Austria, application no. 30141/04, ECHR 2010-IV, §§105-106. See, however, the recent chamber judgment in Oliari v. Italy, applications nos. 18766/11 and 36030/11, 21 July 2015.

  51. 51.

    X., Y. and Z. v. United Kingdom, Reports of Judgments and Decisions 1997-II, §44.

  52. 52.

    S.A.S. v. France [GC], application no. 43835/11, 1 July 2014, ECHR 2014, §129. See also Hatton and Others v. United Kingdom [GC], application no. 36022/97, ECHR 2003-VIII, §97, which spoke of the “direct democratic legitimation” that the national authorities, in particular the legislature, enjoy.

  53. 53.

    For a thorough study of the topic, see Dzehtsiarou (2015). See also Wildhaber et al. (2013); Kondak and Mahoney (2015), pp. 119–140.

  54. 54.

    Bayatyan v. Armenia [GC], application no. 23459/03, ECHR 2011-IV, §§103,108.

  55. 55.

    Marckx v. Belgium, 13 June 1979, Series A No. 31; and Fabris v. France [GC], application no. 16574/08, ECHR 2013-I (extracts), §§57-58, 69.

  56. 56.

    Dudgeon v. United Kingdom (merits), 23 September 1981, Series A No. 45.

  57. 57.

    Kondak and Mahoney (2015).

  58. 58.

    Hirst v. United Kingdom (No. 2) [GC]. application no. 74025/01, ECHR 2005-IX; and Greens and M.T. v. United Kingdom, applications nos. 60041/08 and 60054/08, ECHR 2010-VI (extracts).

  59. 59.

    Al-Khawaja and Tahery v. United Kingdom [GC], applications nos. 26766/05 and 22228/06, ECHR 2011-VI, responding to R v. Horncastle and Others [2009] UKSC 14. See the ultimate (chamber) judgment of the Strasbourg Court in Horncastle and Others v. United Kingdom, application no. 4184/10, 16 December 2014, unreported.

  60. 60.

    See Bjorge (2015), in particular ch. 8 on dialogue between the domestic courts and the Strasbourg Court.

  61. 61.

    As examples, see Stec and Others v. United Kingdom (inadmissibility decision) [GC], applications nos. 65731/01 and 65900/01, ECHR 2005-X, §§46-47; and Vilho Eskelinen and Others v. Finland [GC], application no. 63235/00, ECHR 2007-II, §§50-62.

  62. 62.

    Mahoney (2011a).

  63. 63.

    As examples of rulings where reliance has been placed on academic writings, see Behrami and Behrami v. France, Germany and Norway (dec.) [GC], applications nos. 71412/01 and 78166/01, 2 May 2007, §§69, 130 and 132 (concerning acts performed by KFOR and UNMIK in Kosovo under the aegis of the United Nations); Beric and Others v. Bosnia and Herzegovina (dec.), applications nos. 36357/04 etc., 16 October 2007, §27 (concerning the applicants’ removal from functions by decision of the High Representative for Bosnia and Herzegovina whose authority derived from United Nations Security Council Resolutions); and Korbely v. Hungary [GC], application no. 9174/02, ECHR 2008-IV, §§82-83 (concerning crimes against humanity and the prohibition on retroactivity of criminal offences).

  64. 64.

    See Birks (1998), pp. 399–400, who talks of an emerging partnership in the “juristic function” of interpretation of Anglo-Saxon common law between judges and legal academics – an analysis that the present author has argued can be transposed to the judge-made interpretative law of the Strasbourg Court: Mahoney (2011b), p. 281.

  65. 65.

    McCann and Others v. UK, 27 September 1995, Series A no. 324, §219.

  66. 66.

    Note the view expressed in Bürli (2013), according to which third-party briefs, by enabling civil society to influence the litigation, can usefully serve as one means, among others, of reinforcing the legitimacy of the Strasbourg Court.

  67. 67.

    Sudre (2013), p. 177.

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Mahoney, P. (2019). The Acceptability of the Rulings of the European Court of Human Rights. 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_9

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