Criticizing Strasbourg, Lord Hoffmann, the Limits of Interpretation, the “Margin of Appreciation”, and the Problems Faced by the European Court of Human Rights.

by Vassilis Chirdaris

  1. The criticism of the European Court of Human Rights

It is an undeniable fact that, in its 50 years of operation, the European Court of Human Rights[1] has enjoyed the privilege of favourable treatment by legal scientists, writers, academics, lawyers and journalists, but also by the citizens of Europe. This reality is also undoubtedly not without good cause: this International regional Court, entrusted with the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms[2], has managed to become an exemplary human rights Court due to its interpretational approach and the quality of its judgments. What is more, it has also gradually enforced a common ‘umbrella’ of human rights protection for all European citizens.

No other International or regional Court in the world has been met with this kind of universal recognition, and with the respect and authority commanded by the Court in Strasbourg. At the same time, ECtHR case-law is also the most widely-quoted and referenced body of jurisprudence by all other national, regional and international courts of the world.

Strasbourg is by now regarded as the ‘navel of the earth’ when it comes to human rights, as the Court has become the most genuine and authoritative effecter of fundamental individual rights. In essence, the ECtHR rendered abstract rights into effective, practical rights in action. In other words, the Court transformed rights that were restrictively interpreted or irregularly applied by domestic courts or national organs. Through its work, these rights assumed a new dimension, acquired a ‘live existence’ and became mandatory and applicable throughout Europe (with the sole exception of Belarus[3]). As a result, a European citizen – whether he lives in Norway or in Turkey – is covered by a shield of protection, may rely on human rights legislation (the ECHR) and can petition a court that applies this legislation in a uniform manner by its own judges. Consequently, no European citizen needs to feel alone or unprotected in cases of violation of his rights by state authorities or by domestic courts. On the contrary, citizens are now fully aware that there are judges in Strasbourg that will grant them this type of protection, as they will do for all other people living or residing in Europe. The ECtHR is the last resort and the ultimate hope of every natural or legal person whose rights are infringed by the member states of the Council of Europe.

At the same time, through the progressive development of its jurisprudence, the ECtHR has managed to establish itself on an international plane as the prime model for all human rights courts and forums. Moreover, the Strasbourg Court is the main source of jurisprudence for regional courts (European Union courts, the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, the African Commission on Human and People’s Rights, etc.), international courts and institutions (various Human Rights Committees associated with relevant Conventions and operating under the auspices of the United Nations, Special UN Rapporteurs, the International Criminal Court of Justice, et al.), and domestic courts all around the world. Indeed, the ECtHR has achieved all these through its application of a text such as the ECHR, which is a general[4] human rights Convention, abstract and ‘poor’ in comparison to the more recent American Convention on Human Rights (ACHR)[5] and the International Covenant on Civil and Political Rights (ICCPR)[6].

Hence, the jurisprudential approach to fundamental rights adopted by the ECtHR is met with universal approval by lawyers and judicial bodies of all kinds, but also by citizens who have literally flooded the Strasbourg Court with thousands of petitions. This occurrence constitutes, in itself, a vote of confidence to this Court that no-one could doubt.

The Strasbourg Court is, simultaneously, a highly successful Court but also a great ‘victim’ of its own success. Its thousands of pending petitions, its regional jurisdiction that extends to 47 European countries and to over 800 million citizens, and its delivery of an overwhelming number of condemning judgments against most of the respondent states have impeded its operation and have given rise to various expressions of discontent.

Even so, up until recently, the Court appeared to be virtually immune against attack, as its purpose and prestige weighted disproportionately against any attempt of negative criticism. Any critique that did take place was usually confined to praising comments for the rulings delivered, or to a mild form of displeasure for the pending cases and for some of its decisions. It should be noted at this point that countries with a very high ratio of condemning decisions against them, such as Turkey, Russia, Romania and Ukraine, have not publicly criticized the Court’s rulings neither on a government, legal or political level, nor on a scientific or judicial level.

But things have recently changed, although this did not come about through stern criticism by government officials, academics or human rights lawyers. Quite unpredictably, this surprise emerged through people who usually remain silent, and who are genial and reticent by virtue of their profession. Two of the most senior, leading judges in their countries, effectively ‘took out their guns and began to shoot’! The conditions of the attacks were almost identical: the use of remarkably harsh and unusual language against the Strasbourg Court and ardent disapproval of its interpretative approach, coupled with a stance supportive of their own nationality and the invocation of maxims of famous and prominent men, who have played a historical role in the field of science.

Let us now turn to these reactions in more detail:

 

(a) Lord Hoffmann and his speech against the European Court of Human Rights[7]

Lord Hoffman was born in 1934 in Cape Town, South Africa.  He served as a Lord of Appeal in Ordinary at the House of Lords, the highest court in the United Kingdom, from 1995 to April 2009. He retired at the age of 75. He was one of Britain’s most prominent judges of the past twenty years, characterised by British legal circles as “the most dominant personality in the Lords by a mile” and as “an intellectual heavyweight”[8]. Hoffman is a great legal personality with strong opinions, daring, who is known for his deductive legal reasoning, but who was also considered to follow a somewhat controversial judicial approach[9]. He was a judge who adopted his own approach in his role of applying the law, whilst also having a unique personality. He is an exceptionally charismatic individual, keen to surprise, raise concerns and create impressions and conflicts[10]. A judge who participated in many landmark judicial rulings, at times supporting activist views on human rights that attracted the admiration and respect of the international community, but at other times causing concern and negative outcomes. He is considered to hold the second place in the United Kingdom’s judicial hierarchy, along with Lord Bingham Cornhill, who is thought to have exercised the greatest influence in the decisions of the highest court of the land during the last decade[11].

Lord Hoffman became internationally well-known for the opinion he expressed in the infamous Belmarsh detainees case, A v SSHD of 2004[12], by reference to the legislation in force allowing for the indefinite detention of suspects without trial: “The real threat to the life of the nation […] comes not from terrorism but from laws such as these[13]. This approach was widely celebrated in the United Kingdom as a triumph of British freedoms, whilst also giving hope to the world as to the persisting existence of pockets of respect towards human rights. This was particularly important given the context of the difficult times prevailing during the delivery of this judgment, where security appeared to overshadow all other rights – a fact that could be seen especially in the culmination of the implementation of such views in the USA and the United Kingdom. After all, when a judge of such great authority delivers such an opinion, this in itself constitutes a form of guarantee as to the unhindered exercise of individual rights and fundamental freedoms.

Moreover, a year later in the case of A v. Secretary of State for the Home Department [14], which involved issues of terrorism, Lord Hoffmann found the courage to state that: “The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it[15]. Once again, he showed his firm commitment of respecting human rights, leaving behind the hysteria that had resulted from the relatively recent wounds that had come about from the well-known events[16].

Adding to his positive profile as a human rights defender was the position he took in relation to an ultra-conservative English judge, who had delivered judgments restricting the freedom of expression and the freedom of the press. Judge Eady’s reputation for his conservative rulings had spread widely in the United States, leading four different States to consider them as a model for adopting legislation that was later referred to as “Eady laws”, causing serious concern for individual human rights and fundamental freedoms. In the case of Mohammed Abdul Latif Jameel v. Wall Street Journal[17], the judge ruled that the article run by a newspaper, mentioning that the Saudi Central Bank was monitoring the accounts of businesses suspected of funnelling funds to terrorists, was not a responsible journalism, basing his reasoning on that the American government had not published these information! Thus, in this respect, he tried to equate the interests and statements of another state with the right to information of the citizens of his own state. The House of Lords decided that Eady was “hostile to the spirit” of the defence of the public interest, and also that he was “quite unrealisticand positively misleading[18]. In a certain passage, Lord Hoffmann even went as far as to compare the approach taken by Eady to that of the Communist Party censors in the Soviet Union[19]. Although this was a harsh pronouncement, it nonetheless reflected public outrage and democratic sensitivity.

Indeed, it would be an incomplete portrayal of Lord Hoffmann’s positive profile if we fail to mention that his legal pronouncements in matters of commercial, bankruptcy and tax law have been followed by the most important courts of his country but also world-widely[20].  Moreover, he is a non-permanent judge of the Hong Kong SAR Court of Final Appeal, clearly illustrating his international recognition and his undoubted, high judicial authority.

This exemplary British high court judge, however, also retains another side to his judicial career: this can be witnessed in his judgments that promote a different approach to the interpretation of human rights. For example, he had held that Trevor Fisher, a convicted murderer in the Caribbean, could be legally executed – a sentence that was ultimately carried out[21]. In 1989, one of his own rulings was set aside, following his controversial order to the independent journalist, Bill Goodwin, to reveal the sources of an unpublished article for “The Engineer” magazine. Furthermore, in 2008, he criticized UK lawyers for trying to convert the whole system of justice into questions of human rights[22].

In fact, Lord Hoffmann had a rather guarded approach towards the jurisprudence of the Strasbourg Court up until the beginning of 2009, but also generally in regard to its mode of operation.

In the House of Lords decision in A and others v Secretary of State for the Home Department[23] of 16.12.2004, Lord Hoffmann indicates his dislike for the ECtHR and moves on to make a disdaining reference to its judgments, noting that he “does not find the European cases particularly helpful[24]. In the paragraph immediately following this statement, he offers his advice to the ECtHR regarding cases involving terrorism, suggesting that “it is wise for the Strasbourg court to distance itself from these matters[25].

This reservedly critical stance of Lord Hoffmann towards the ECtHR is then suddenly changed, turning into a polemic position against Strasbourg just before the twilight of his career as a judge: in a speech titled “The Universality of Human Rights”, delivered at the Judicial Studies Board on March 19th 2009, Lord Hoffmann launches a direct and unprecedented attack against the Court. In fact, it is the most severe attack ever delivered by a lawyer against the ECtHR. This approach taken by Lord Hoffmann literally startled Europe, raised questions and concerns and gave rise to a number of reprimands against him[26], even though a considerable number of people (particularly from the United Kingdom), welcomed his views.

Lord Hoffmann mentions the following in his speech:

“…24. The fact that the 10 original Member States of the Council of Europe subscribed to a statement of human rights in the same terms did not mean that they had agreed to uniformity of the application of those abstract rights in each of their countries, still less in the 47 states which now belong. […] The Strasbourg court, on the other hand, has no mandate to unify the laws of Europe on the many subjects which may arguably touch upon human rights. Because, for example, there is a human right to a fair trial, it does not follow that all the countries of the Council of Europe must have the same trial procedure.  Criminal procedures in different countries may differ widely without any of them being unfair. […]

27. The Strasbourg court has to a limited extent recognised the fact that while human rights are universal at the level of abstraction, they are national at the level of application. It has done so by the doctrine of the ‘margin of appreciation’, an unfortunate Gallicism by which Member States are allowed a certain lattitude to differ in their application of the same abstract right. Clearly, that is a step in the right direction. But there is no consistency in the application of this doctrine and for reasons to which I shall return in a moment, I do not think that there is a proper understanding of the principle upon which it should be based. In practice, the Court has not taken the doctrine of the margin of appreciation nearly far enough. It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe.

28. I could give many examples, but I shall confine myself to three and keep off the Strasbourg court’s jurisprudence […] First, the court’s enthusiasm for the right to silence. […] Lord Templeman said of one of them, the right to refuse to answer questions if the answer might tend to incriminate, that it affords protection for the guilty and is unnecessary to safeguard the innocent. […] Indeed, the main value of such statements in subsequent criminal proceedings is that they sometimes contain the witness’s first thoughts at variance with his later story.

29. That was the background to the case of Mr Saunders, the chief executive of Guinness plc, who was convicted of conspiracy, false accounting and theft in connection with a take-over bid for Distillers plc […] In 1996 the Strasbourg Court held that he had been denied the human right to a fair trial guaranteed by article 6. It was acknowledged that article 6 did not mention the right to silence, but the Court said in sweeping fashion that “the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under article 6.” […] The court said that the privilege applied to “all types of criminal offences without distinction from the most simple to the most complex.” […] One would imagine from the language of the Court that the inspectors had used thumb screws to obtain the information.

 

30. […] Most recently, in O’Halloran and Francis v United Kingdom the owner of a car complained that his privilege had been violated because he had been required, on pain of a fine, to say who had been driving his car when it was photographed speeding. […] And although the application was rejected, there were two dissenting opinions. In order that you may appreciate the type of reasoning employed in Strasbourg, I cannot resist reading a passage from one of the dissents:

“ […] in the case of speed violations […]such offences represent hundreds of thousands if not millions of cases […]  In my opinion, if there are so many breaches of a prohibition, it clearly means that something is wrong with the prohibition. It means that the prohibition does not reflect a pressing social need, given that so many people choose to breach it even under threat of a criminal prosecution. And if this is the case, maybe the time has come to review speed limits and set limits that would more correctly reflect peoples’ needs… It is difficult for me to accept that hundreds of thousands of speeding motorists are wrong and only the government is right.”[27]

He then moves on to consider the rights of those charged with a criminal offence during the examination of witnesses for the prosecution, prescribed by Article 6(3)(d) ECHR. Lord Hoffman notes in paragraph 31 of his speech:

31. […] In the recent case of Al-Khawaja and Tahery v UK (20 January 2009) […] Dr Al-Khawaja was a doctor charged with indecent assault on two of his patients. One of them, after making a statement to the police, committed suicide. The judge admitted her statement […] but warned the jury that they had not seen the complainant or heard her cross-examined. […] The Strasbourg court said that there had been a violation of the fair trial provision of article 6.  In their opinion, in any case in which a conviction is based “solely or to a decisive degree” on a statement by a person whom the accused has had no opportunity to examine, he has not had a fair trial.  […] It is quite extraordinary that on a question which had received so much consideration in the Law Commission and Parliament, the Strasbourg court should have taken it upon themselves to say that they were wrong.”

Following this, Lord Hoffmann raises serious disagreement with the establishment of a right to environmental protection by Strasbourg:

32. The last example is about night flights at Heathrow […] In 1993 the government […] introduced a change in the regulations about landings after 4:30 am. There were objections from residents in the area […] The Secretary of State, in deciding to authorise the new scheme, had to decide whether the general economic interest of the country outweighed the obvious inconvenience to the residents. That was an essentially political decision which his government had been elected to make. In 2001, in Hatton v United Kingdom, the Strasbourg court decided by a majority of 5 to 2 that there had been a violation of the rights of the local residents to privacy and family life […]

The rest of his speech was extremely interesting, and included sarcastic remarks about the ECtHR and its judges, ‘concoctions’, offers of advice and further general commentary regarding Strasbourg:

34. I regard all three of these cases, and many others which I could mention […] as examples of what Bentham called teaching grandmothers to suck eggs.  In Brown v Stott[28], Lord Bingham made some wise remarks about the interpretation of an international treaty like the European Convention:

“ […] The language of the Convention is for the most part so general that some implication of terms is necessary […] But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept.”

36. The proposition that the Convention is a “living instrument” is the banner under which the Strasbourg court has assumed power to legislate what they consider to be required by “European public order”. I would entirely accept that the practical expression of concepts employed in a treaty or constitutional document may change. […] But that does not entitle a judicial body to introduce wholly new concepts, such as the protection of the environment, into an international treaty which makes no mention of them, simply because it would be more in accordance with the spirit of the times.[29] It cannot be right that the balance we in this country strike between freedom of the press and privacy should be decided by a Slovenian judge[30] […]

37. What grandeur, Bentham would have said. What legislative power the judicial representative of Slovenia can wield from his chambers in Strasbourg. […] It is we in Strasbourg who decree the European public order […] and all the courts of Europe must jump to attention.

38. […] an international court such as Strasbourg should be particularly cautious in extending its reach in this way. That is because […] it lacks constitutional legitimacy. […] The judges are elected by a sub-Committee of the Council of Europe’s Parliamentary Assembly, which consists of 18 members chaired by a Latvian politician, on which the UK representatives are, a Labour politician with a trade union background and no legal qualifications and a Conservative politician who was called to the Bar in 1972 but so far as I know has never practised. They choose from lists of 3 drawn by the governments of the 47 members in a manner which is totally opaque.

39. […] But we have not surrendered our sovereignty over all these matters. We remain an independent nation with its own legal system, evolved over centuries of constitutional struggle and pragmatic change. I do not suggest belief that the United Kingdom’s legal system is perfect but I do argue that detailed decisions about how it could be improved should be made in London, either by our democratic institutions or by judicial bodies which, like the Supreme Court of the United States, are integral with our own society and respected as such.”

And, finally, the conclusion of Lord Hoffmann’s speech:

44. What is to be done?  […] I have no difficulty about the text of the European Convention […] The problem is the Court; and the right of individual petition, which enables the Court to intervene in the details and nuances of the domestic laws of Member States […]

Through his speech, the highly distinguished former judge of Great Britain has effectively taken out his sword in an effort to wound the Strasbourg Court. Adopting firm language, he refuses to tolerate the role played by the ECtHR in contemporary European culture, while he is also clearly discommoded by the Court’s jurisprudence.  Indeed, he is particularly vexed by the mode of legal reasoning and interpretation followed by the ECtHR in its case-law. He would rather see Strasbourg to act more as a forum of theoretical discussions on human rights, with capabilities that would be limited to making general suggestions to the member states of the Council of Europe, and not as an effective organ of uniform application and enforcement of human rights.

He does not tolerate the granting of competence and authority from his own national court to a supranational judicial body, not even where human rights are concerned. Three fundamental rights, such as the right to silence, the right against self-incrimination and the right of the accused to cross-examine witnesses for the prosecution are otiose, according to Lord Hoffmann’s speech. Hence, he is asking that these be restricted, if not abolished; and he stands against the establishment of new, necessary fundamental rights, such as that of environmental protection. Ultimately, he does not wish to move into the future but, instead, seeks to retain the status quo of the past.

What is worse is that, for all the issues he mentions, he does not confine himself to a ‘scientific’ presentation of his viewpoints – something that he clearly possesses: on the contrary, he adds a touch of undue irony towards the Strasbourg Court and its judges. In this respect, he exhibits a ‘loud’ and provocative sense of self-involved superiority, which is not consistent with either a judge or a mentor of human rights implementation.

To begin with, he is offering advice that has as its highlight the suggestion that the ECtHR should refrain from trying to teach grandmothers how to suck eggs.

But he does not stop at that. He shows a racist tendency by being sarcastic towards two judicial personalities, the Slovenian judge Mr. Zupančič and the Moldavian former judge Mr Pavlovschi. In relation to the latter, he refers to his dissenting opinion, implying that is – at the very least – irrelevant. The argumentation of dissenting judges, however, which expresses minority opinions, is important and unique, as it may well open a new road in the future case-law of the Court. In all honesty, I could not gauge whether such a rigid mode of thinking as to the amendment of a law, which stands so contrary to the overwhelming majority of citizens, could ever form part of the high reasoning of Lord Hoffmann. Indeed, I cannot help but wonder: does the debate on the legislation imposing speed limits, where there are no drivers violating these, appear to be so unreasonable to him?

 b) The Greek high court judge Mr V. Rigas, his article in “Nomiko Vima” and the role of the Greek Court of Cassation (Areios Pagos) in the international legal sphere

Mr Vassileios Rigas is one of the most distinguished, Greek leading Supreme Court judges of recent years, and the most senior Greek judge of the Court of Appeal. His knowledge of the law is remarkably thorough and advanced, a fact which is reflected in the court judgments he has participated in, but also in the many legal articles that he has authored and published in virtually every distinguished legal journal in Greece.

He was born in 1943 and studied law at the University of Athens. He has been a judge since 1969, where he was ranked first in his judicial academy entrance exam. He was called to the  Greek Court of Cassation in 2004, where he is still an active member of the bench, while his term will come to an end in 2010, when he is due to retire. He is the President of the Hellenic Union of Procedural Lawyers, a member of the Hellenic Union of Civil Lawyers and of the Hellenic Pro-Educational Fund, among others. He has taught civil procedure in the National Academy of Judges and has published more than 30 articles in legal journals, such as ‘Nomiko Vima’ (‘Legal Forum’ legal journal), the ‘Elliniki Dikaiosyni’ (‘Greek Justice’ legal journal), the ‘Diki’ (‘The trial’ legal journal),, as well as critiques and commentaries with substantiated deviations from the prevailing theory and jurisprudence. Some of his texts concern the ECHR but also the case-law of the Strasbourg Court and its relation to national Greek jurisprudence.

Judge Rigas published an article with title “Issues relating to grounds of review – the recent ECtHR judgments on the vagueness of appeal grounds provided by the Code of Civil Procedure” in a 2008 issue of the ‘Nomiko Vima’ journal[31].

Mr Rigas reacts against the multitude of repeatedly condemning ECtHR rulings against Greece that share the same grounds for ‘conviction’, namely that the Greek Court of Cassation interferes with the right to access to court as a result of its adherence to excessive formalism.

To begin with, let us turn to consider how the Greek Court of Cassation (of which Mr Rigas is a distinguished member) is represented on an international and European legal environment. In doing so, we must also bear in mind the now indisputable interaction between jurisprudence, globalization and the existence of binding decisions stemming from the judicial bodies of two multi-national European institutions, i.e. of the European Union (the ECJ and the Court of First Instance) and of the Council of Europe (the ECtHR)

In this context,  Areios Pagos presents two sides.

The first, positive one, relates to the reasoning leading to its judgments. Objectively speaking, in this respect the Greek Court of Cassation has generated a series of judgments that have – in their majority – followed a mode of reasoning that is expert and substantiated. Consequently, the court regularly delivers rulings of a high quality, incorporating detailed reasoning that surpasses that of many European and lower (non-cassation) courts, providing parties with a thorough response to their grievances and claims. The very high quality of the enunciation of the reasons for its judgments is to be applauded, as it exceeds the requirements set by the case-law of the ECtHR (which, in fact, limits itself to the basic level of granting sufficient reasons[32]).

There is also, however, another side of the Greek Court of Cassation which is negative.

Areios Pagos seems to have determinedly “shut” the doors and windows at “Alexandras Avenue”*. The Court seems to be actuated by a considerable degree of introversion, leading to its refusal to accept the newly emerging international, European and national trends in case-law and current challenges. Characteristic of this claim is the absolute exclusivity of its authority: there is no other supreme court in Europe where the sole source of jurisprudential precedent consists exclusively of its own case-law. The entire body of its new jurisprudence stems only from its own previous case-law, which is thus the only source of any binding case-law! Hence, it is caught in a circle of self-reproduction of its own jurisprudence, without sufficient renewal as it does not incorporate the case-law of other countries’ supreme courts, international courts and human rights committees, or even of the ECtHR or the ECJ. An indicative aspect of the introversion of  Areios Pagos is also its lack of reference and consideration of expert legal articles or of the opinions of Greek and European esteemed academics in the making of its judgments. The exceptional, sporadic mentioning of other judgments or academic views in a very small number of cases only stands to confirm the rule. It is worth noting, however, that this is not an attitude that is also espoused by the Public Prosecutors of the Greek Court of Cassation.

Equally, characteristic of this sense of introversion is the method of interpretation adopted by Areios Pagos. The Court insists on following the same, traditional and unchanging manner of interpretation that was used at the time of the enactment of the basic Codes. It fails to accept and apply the new mode of interpretation, which is not based on the retrieval of the ancient will of the legislature, but seeks to apply the law in view of current requirements. This contemporary method of interpretation asks that legislation is applied with consideration to current conditions and to the newly emerging manners and customs, whilst also taking into account newly merging viewpoints and living conditions. In other words, the Court should embrace the initiation of the widespread use of evolutionary interpretation, which places emphasis on modern conditions as a determining factor in interpretation. Moreover, it should also pay attention to the generally accepted measures that are being established particularly in the legislation of the member states of the EU and of the Council of Europe[33].

Another observation that can be made about the Areios Pagos is about its formalistic approach with regard to rights. Nobody can abolish the core of a fundamental right: this core does not belong to courts or to states. It belongs to its beneficiary, who is the citizen and, thus, it cannot be abolished. If there has been an erroneous application, exercise or use of the right in question, courts are under a duty not to abrogate the core essence of that right purely due to formalistic grounds. Following this reasoning, we see that the manner in which a right is applied cannot negate the right itself. The national judge, instead of seeking the breaches of the core of the right, insists on adhering to procedural rules that are then themselves turned into a right! Hence, we end up missing the forest for the tree.

Two apt examples are the following:

In the recent ECtHR judgment in Kallergis v. Greece of 2.4.2009,  Areios Pagos held that a claim was inadmissible because the registrar of the Criminal Court had failed to draft a deposition report for the appeal of cassation, even though a case registration number had been issued, court stamps had been affixed and both the applicant and the registrar had duly signed the documents of appeal of cassation! In another ruling that was issued just a few months ago in Roumeliotis v. Greece of 14.10.2009, the Greek Court of Cassation had, once again, dismissed the appeal of cassation against a civil judgment as inadmissible. This was because the applicant had not indicated in his deposition (that concerned the lack of specific and corroborated grounds) the approach that had to be taken by the court of second instance in its reasoning, so as to grant a specific and corroborated conclusion to the judgment being appealed against. In essence, then, what was required of the applicant was that he should effectively assume the role of a judge in a court of second instance! If that does not amount to excessive formalism, then it is unclear what would…

Finally, what should also be noted with regard to the Greek Court of Cassation is its inappropriate (non) interpretative approach, specifically in its reading of the ECHR and of EU law[34]. The above mentioned introversion leads Areios Pagos to a predominantly negative reasoning as to the (non)-violation of Convention provisions. We should also note that the recently, substantially revamped website of the Court[35] mentions 29 criminal law judgments that were decided between 2007 and February 2009. These include references to the ECHR and, in their overwhelming majority, do so through a negative causative dismissal: there is a statement, which appears to be phrased in the same manner in all of these decisions, positing that the judgments being appealed against were not in breach of ECHR provisions. This is done, however, without providing any particular qualification, reasoning or elaboration on the decision, thus ignoring – and potentially also appearing to be indifferent – towards the extensive jurisprudence of the ECtHR, which offers the only authoritative interpretation of the Convention that the Areios Pagos is under obligation to resort to.

In view of his service in a traditional supreme court, Mr Rigas – a highly prominent judge – sought to support the positions and practices of his court in a defensive, but also dismissive, manner. A substantial response to the views of justice Rigas has been issued in the same legal journal by the lawyer Mr Manolis D. Giannousakis, in his article “Areios Pagos, the vagueness of grounds of appeal of cassation and the European Court of Human Rights[36]. I will not go into a detailed consideration of Mr Rigas’s objections, with which I am obviously in disagreement. I will, however, focus on the way that the Strasbourg Court is being perceived by a national judge of a small country, who also happened to be chronologically the first one to engage in such an extensive critique, as his article was published in March 2008 – i.e. one year before Lord Hoffmann’s speech.

Mr Rigas writes in his article: “[…] The application of law must take place in a reasoned manner. The principle of reasoned application of the law appears to be followed by the ECtHR, as its decisions are rife with legal reasoning, interpretational analyses, argumentations, etc. Nonetheless, its abovementioned considerations appear to lean towards an illogical application of the law, which is reminiscent of “the justice of the Qadi”, lacking consistency and allowing for the differential treatment of similar issues or for  the same approach to dissimilar issues”.

In essence, he suggests that the judgments of the ECtHR are devoid of reason. He reaches that conclusion as Strasbourg has ruled against Greece due to the fact that Areios Pagos had dismissed the appeal of cassation as inadmissible, because the  facts of the case were not mentioned in the above mentioned document, notwithstanding that they had already been confirmed by the Court of Appeal. At the same time, most necessary details – such as the main factual circumstances, the procedures that had been followed and the grounds for the appeal of cassation against the prior judgment – had been summarily provided in this document. Hence, the ECtHR made this very simple observation: since there was a summary of the main facts and the admissions of the judgment of the court of second instance outlining the reasons for rejecting the appeal as inadmissible; and provided that Areios Pagos had in its possession the most important document of the case being appealed against (which was the text of the judgment of the court of first instance itself); and given that Areios Pagos is under the obligation to read the text of that judgment, which includes all these admissions and statements as to the relevant facts, is this not unreasonable? Or have we reached a point where it is deemed to be unreasonable to believe that something entirely reasonable is, indeed, reasonable?

After all, how can one liken the ECtHR with a Qadi court when the former acts in a clearly opposite manner than that presented in the article? In the cases relating to scrutiny of appeals of cassation that Mr Rigas’s article refers to, Strasbourg has maintained a uniform jurisprudential approach, issuing coherently matching judgments when it deals with similar themes. As a result, there is an overwhelmingly large number of same and identical judgments against the Greek Court of Cassation on issues relating to the vagueness of reasons for dismissal of appeals of cassation and the formalism favoured by the Court (Liakopoulos v. Greece, judgment of 24.5.2006, Efstathiou and Others v. Greece, judgment of 14.12.2006[37], Zouboulidis v. Greece, judgment of 14.12.2006[38], Lionarakis v. Greece, judgment of 5.7.2007[39], Vasilakis v. Greece, judgment of 17.1.2008[40], Koskinas v. Greece, judgment of 21.2.2008, Alvanos and Others v. Greece, judgment of 20.3.2008, Reklos and Davourlis v. Greece, judgment of 15.1.2009[41], Pistolis and Others v. Greece, judgment of 4.6.2009, Roumeliotis v. Greece, judgment of 14.10.2009[42], and others), exhibiting a timeless and uniquely consistent approach in its case-law. This occurrence in itself should provide enough proof that the ECtHR is nothing like a Qadi court, even if the author of this article would not, in any way, wish to suggest that Strasbourg is a perfect court – a viewpoint that is also supported later on in this work.

At the end of his article, Mr Rigas reaches the following conclusion: “The judgments of the ECtHR are flawed. Perhaps it would be useful for the enforcers of legal rules to recall Albert Einstein’s suggestion, recommending that ‘Things should be as simple as possible, but not simpler’ ”.

Undoubtedly, this is a benchmark position taken by an important national judge as to the incorrectness of Strasbourg judgments. As such, his opinion is certainly to be respected. The allusion to Einstein, however, who was a man with a complex mind, and his involvement in such simplifying stories appears to me to be rather misplaced. In any event, obstinate persistence to formalism and ritualism seems to be far more of a simplification than the protection of fundamental rights – which is, after all, a very serious matter.

  1. The limits of interpretation of the Strasbourg Court, the development of rights, judicial activism and the “margin of appreciation

 a) The limits of interpretation of the ECtHR: the restrictive or expansive interpretation of the ECHR

The interpretations applied by Strasbourg constitute the pinnacle of its function, its greatest success and the guiding force behind its global recognition. Indeed, the fact that the ECtHR is universally recognised as the world’s premier judicial tribunal is certainly not coincidental. The creative, dynamic and evolutionary interpretation of a ‘terse’ Convention, which has turned this soulless international text of general principles into a living instrument of homogenous application of fundamental individual rights and freedoms, has rendered the Court a collective organ of hope, collectively shared by all European citizens. In practice, it has granted a voice to those who have been victims, whilst enabling them to stand tall in a direct confrontation with the state-offender, thus placing the latter in a position of being an equal party to a legal dispute with its citizens.

This approach favoured by the Court, coupled with the breadth of its interpretation, has given rise to discomfort and concern. Lord Hoffmann directly referred to this issue in his abovementioned speech. Can Strasbourg really determine the schedule of flights at Heathrow, which is – after all – an English airport?

These questions need to be answered and, above all, the cardinal issue that commands a response is the following: where should the limits of Strasbourg interpretation be set? Does this Court have unlimited rights and competencies? And, if the answer is in the negative, what are its limits?

I believe that matters are far simpler than they appear to be and, potentially, it may not be necessary to trouble Lord Hoffmann’s grandmothers or Einstein’s complex mind in order to comprehend where things stand.

The ECHR has been signed and ratified by 47 member states of the Council of Europe and applies to all European states other than Belarus. In its Preamble, there is an express and unequivocal reference to the aim of the Council of Europe, which is “the the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms”.

The key medium through which this aim is to be fulfilled, accepted by all contracting states of the Council of Europe, is the ECtHR. Indeed, this is a mandate that has been clearly stipulated by Article 19 of ECHR: “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 […] ”.

Therefore, in its interpretation of rights deriving from the ECHR and its Protocols, the ECtHR is obliged to follow the commitment that it has undertaken under the Convention in itself. It must interpret its provisions in two expanding and not restricting ways.

Firstly, the Court is under an obligation to safeguard and uphold all the rights that are protected by the Convention and its Protocols, meaning that it has no interpretative allowance to restrict or curtail established rights. Its minimum limit is the grammatical phrasing that it may chose to adopt. Therefore, there is no scope for any possibility of a restrictive interpretation of the Convention rights or of any other interpretation that would narrow the application of rights[43]. The first type of interpretation mentioned above shows a defensive disposition towards rights.

Secondly, the Court is simultaneously entitled to engage in the development of rights and, provided that such advancement is also directly related to the achievement of closer integration between the member states of the Council of Europe, then the Strasbourg Court is obliged to adopt a broadening definition. This second mode of interpretation has a dynamic character and stands as a motivating component in the Court’s case-law. The reputation, authority and success of the ECtHR is largely due to this aspect.

It is within this aspect that judicial activism and the hybrid nature of the Court fall under. The first concept is a privilege and a right that Strasbourg is entitled to, whereas the second is an inescapable reality of its character: when a right has already been placed within a propelled ‘evolutionary’ route through the Court’s jurisprudence or by the ECHR member states’ legislation, then the ECtHR cannot but apply this progressive form of the said right, having no choice but to follow the express wording of the Convention’s Preamble.

The development of rights cannot have a static character but must be dynamic[44], evolutionary[45] and in line with society’s prevailing contemporary conditions[46]. This mode of interpretation is not connected to the past but based on current reality, taking into account the historical changes in ethics, conditions and everyday life, whilst also considering changes in society. The interpretation of judicial judgments must be adjusted according to the contemporary way of life, thus safeguarding the harmonious and appropriate evolution of rights.  In fact, it is this very interpretative method that has allowed the Court to adopt, from the very beginning, the development of ethics and technologies of the third millennium. The social context within which the inspiration for and the materialization of this international agreement took place, has persisted and has also directly affected its contractual regulatory framework. In effect, the realization of the aims of the Convention is dictated by the model of societal advancement. [47]

The method of evolutive interpretation and the consideration of the changes in current conditions made their first appearance in Strasbourg case-law in the well-known Tyrer v. United Kingdom judgment of 25.4.1978[48]. In this case, the Court was confronted with national (British) legislation[49], but also with the local way of thinking of the residents of the Isle of Man, where it was legal to chastise minors by employing the use of corporal punishment (caning). More to the point, apart from it being allowed by law, this was a practice that was also largely deemed to be acceptable by the local community. The ECtHR held that, given that the Convention is a living instrument, it must be interpreted in the light of currently prevailing circumstances, whilst it cannot remain unaffected by the commonly acceptable measures of penal policy espoused by the contracting parties of the Council of Europe in that particular field. Thus, it was decided that the British rules allowing the use of corporal punishment, which was a practice protected under the veil of judgment and exercised to the detriment of the minor, were in violation of Article 3 ECHR. The Court then moved on to clarify that “The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being […] [and] constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a person’s dignity and physical integrity[50].

The Strasbourg court applies time as a tool of interpretation. In the case of Goodwin, it observes that “The Court is not persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria. […]There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments […]”[51].

It must be noted that the above remarks on the subject and purpose of the ECtHR clearly illustrate why the ECHR must be interpreted in view of currently prevailing circumstances, rather than in terms of the applicable conditions that were specific to the time of the drafting of the Convention[52]. Strasbourg case-law interpretation is also amenable to this notion, as the Court is regarded as a living instrument, having as its aim the optimal comprehension of the principles that lay the foundations of the rights established by the ECHR, irrespective of how the signatory states themselves enforce those principles[53].

Lord Hoffmann may be protesting against the mode of interpretation adopted by Strasbourg, but it would be preferable if he had paused to consider a ruling delivered by his own court. A truly indicative example can be seen in the criticism directed against an infamous decision of the House of Lords itself: “A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum[54]. Dare I say that one could not find a more striking exaltation of the recognition of the evolutive process, coming straight from Lord Hoffmann’s Court!

A certainly noteworthy application of this evolutive and dynamic method of interpretation is also followed by the Courts of the European Union, which ‘enjoy’ Lord Hoffmann’s acceptance, as he concedes that they have been granted the necessary legal competence through the various Community treaties. Two relevant examples are the judgments in Maruko[55] and Roodhuijzen[56]. In the first case, the European Court of Justice reversed the approach it had previously taken in its existing case-law, holding that the same sex partner of a registered life relationship was entitled to a widower’s pension equivalent to that granted to a surviving spouse of the opposite sex.  Similarly, in Roodhuijzen v Commission, the European Union’s Civil Service Tribunal employed a particularly dynamic and evolutive interpretation of the applicable rules, moving to recognize Mr Anton Pieter Roodhuijzen’s unregistered partnership as a relationship that would yield equal rights to those granted to a recognized partner or spouse, hence equating actual relationships with their legally recognized counterparts.

In conclusion, I would submit that the interpretation favoured by Strasbourg is consistent with contemporary trends, adjusting an international Convention that was drafted in the middle of the previous century to today’s reality: in doing so, the Court takes into consideration the currently prevailing conditions and way of life, as well as contemporary manners and customs. As a result, by adopting this mode of interpretation, Strasbourg has succeeded in transforming the ECHR into a modern Convention that is enabled to provide solutions to current problems, whilst effectively realizing its formative aim. Hence, the limits of interpretation are not restricted as long as they serve the original purposes of the Convention, which are set out by the Convention text itself, including its Preamble.

b) Judicial activism, establishing new rights and the right to environmental protection

 Lord Hoffmann expressed serious disagreement with the manner of interpretation of the Strasbourg Court since, according to his view, this interpretation leads to the creation of new rights, such as the right to environmental protection. Consequently, following Lord Hoffmanns’ reasoning, the ECtHR is effectively turned into a legislative body, thus exceeding its competence by establishing new rights that do not exist in the Convention.

As mentioned earlier, however, this method of interpretation adopted by Strasbourg does posses the required legitimacy that is needed in order to further existing rights. This is particularly pertinent when a more recent interpretation also includes, within the content of an established right, an additional aspect to it – an occurrence which does not lead to the founding of an autonomous and independent new right. In fact, this process represents the widening scope of a pre-existing and legally established individual right.

Furthermore, the right to environmental protection is not a novel concept, as the ancient Romans were, in actual fact, the first to consider environmental nuisances[57]. The Court itself has referred to the term “environmental protection” in 58 of its judgments[58] preceding Lord Hoffmann’s speech. Thus, his concern about the environment ending up being protected by ‘humble – Strasbourg’ in a manner that would be inordinate has, arguably, come too late. After all, should the focus of our concerns be aimed at wondering whether the person or body protecting the environment is legally authorized and institutionally mandated to do so? Is this, really, what we should be fretting about?

The President of the ECtHR, Mr Jean Paul Costa, mentions the following in his separate opinion in the case of Hatton[59]: “[…] the right to a healthy environment is included in the concept of the right to respect for private and family life […] Since the beginning of the 1970s, the world has become increasingly aware of the importance of environmental issues and of their influence on people’s lives. Our Court’s case-law has, moreover, not been alone in developing along those lines. For example, Article 37 of the Charter of Fundamental Rights of the European Union of 18 December 2000 is devoted to the protection of the environment. […]”. In the Grand Chamber judgment of the same case, judge Costa – along with some of his colleagues – provide the following in their dissenting opinion: “As the Court has often underlined: ‘The Convention is a living instrument, to be interpreted in the light of present-day conditions’ […] This “evolutive” interpretation by the Commission and the Court of various Convention requirements has generally been “progressive”, in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the Convention to develop the “European public order”. In the field of environmental human rights, which was practically unknown in 1950, the Commission and the Court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protection against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on”[60].

In cases concerning matters of environmental protection, the Court has truly exhibited a jurisprudential practice that asserts its role in applying the ECHR, thus granting the Convention an essential and practical substance in cases concerning the protection of private and family life. Most importantly, the Court has achieved this by generating a dynamically evolutive and progressive body of human rights jurisprudence.

A few representative rulings that the ECtHR has generated include the following:

a) The operation of a plant for the treatment of waste from tanneries, that did not have the required municipal license and which operated at a distance of twelve meters from the applicant’s home, was in violation of Article 8 ECHR. This was due to the fact that it could affect the individual applicant’s well-being and prevent her from enjoying her home in such a way as to affect her private and family life adversely, without, however, seriously endangering her health[61].

b) The operation of a steel-plant in close proximity to a densely populated area, which produced certain hazardous substances in the atmosphere that largely exceeded the maximum permitted limit, was a matter falling under Article 8 ECHR. Even assuming that the pollution did not cause any quantifiable harm to the applicant’s health, the Court held that it inevitably made her more vulnerable to various diseases, whilst adversely affecting the quality of life at her home[62].

c) The failure of the State to provide local population with information about the risk factor involved in the operation of a nearby chemical factory, from which explosions had taken place in the past, affected the applicants’ right to respect for their private and family life[63].

d) The applicant had suffered a serious infringement of her right to respect for her home as a result of the authorities’ failure to take action to deal with thenight-time noise disturbances that were caused by (the more than 100) nightclubs near her home[64].

In cases concerning the environment, the ECtHR has shown a commonly shared sense of sensitivity, which is clearly illustrated in its relevant jurisprudence, leading it to operate as an activist court.

The term judicial activism[65] is used in order to describe court jdugments that appear to be based more on the personal views and prejudices of judges, rather than on the applicable law itself. The term seems to carry negative connotations, as it has been mainly construed by the supporters of a more conservative stance, namely that of “judicial restraint”.

Nonetheless, the meaning of judicial activism is more of a technical matter, rather than an issue of substance, when it comes to Strasbourg.

In the jurisprudential approach of the ECtHR, judicial activism cannot be considered as an autonomous and separate method of interpretation. In fact, it is more akin to a characterization of the Court’s predominantly evolutive and dynamic interpretation, which is impliedly incorporated within the definition of ‘furthering of rights’, expressly provided in the Convention’s Preamble. Thus, the notion of “activism” is inherently encapsulated within the evolutionary nature of the rights protected by the ECHR and, as such, it has acquired legislative force. In essence, when the term is used in the context of ECtHR case-law, it can be simulated with that part of the Court’s jurisprudence that falls under the concept of creative interpretation. This practice can mostly be seen in cases involving Articles 8, 9 10 and 12 ECHR, which have, in turn, granted the Court consentient global recognition[66].

But what does Lord Hoffmann have to say about judicial activism in his direct attack against this very interpretational method of Strasbourg? His views are firm and recent. On10 July 2008, about eight months before his abovementioned speech, Lord Hoffmann participated in a web-hosted discussion amongst many distinguished law professors and judges.

As expressed in his own words, “ […] much of the discussion has been about how trial judges behave. Perhaps one should concentrate on the guidance they should receive from Supreme Courts […] They are responsible for the proper functioning of their judicial system and although it might be “judicial activism” to make changes in the law for purposes of social engineering, it must be part of their proper function to try to prevent existing law or procedure from having obviously unintended consequences, such as discouraging people from undertaking socially desirable activities[67]. One could hardly find a more sustained and supportive statement for Strasbourg Judges with regard to “judicial activism” than this proclamation of their subsequent accuser!

 

c) The “margin of appreciation”: A jurisprudential construction of the Strasbourg Court

The Strasbourg Court has made a balancing, diplomatic gesture towards national state signatories to the ECHR. It has created a jurisprudential construction, termed as “margin of appreciation[68], that was not foreseen in the Convention itself[69]. In essence, this captures the Court’s judicial constraint and its abstention from judicial scrutiny. The Court accepts that in certain cases where there is a clash between ECHR protected rights and the wider public interests of a member state, it is more appropriate that the matter should be decided by national courts or national authorities, rather than by Strasbourg[70].

The manner in which the delimitation of the margin of appreciation has been set refers to the authority of the contracting states in assessing factual circumstances, as well as to the application of the provisions that apply through the various regional and international human rights conventions[71]. Its defining core is that, within its territory, each society retains the right to balance individual rights with national interests, and to rule on any disputes that may result from the varying moral, social, cultural, political and legal traditions[72] of contracting states[73].

Thence, Strasbourg engages in a form of self-restraint that lies outwith the Convention, effectively granting authority to the offender (state), rendering it the sole entity entrusted with the making of a decision as to the existence of a violation against the victim (applicant)! This constitutes a judicial “invention that weakens the force of the ECHR, whilst it also stands against the aims of the Convention itself.

In practice, whenever the ECtHR does not wish to involve itself in a case, it abstains from its ECHR obligation to protect the victim, opting for the indirect transferal of that obligation to act to the respondent state (or, effectively, accepting that the state will not act). The “margin of appreciation” is, in reality, a medium for the self-protection of the Court itself, and a form of judicial tolerance vis-à-vis state arbitrariness. Strasbourg is not entitled to abstain from the application of any right: on the contrary, it is the only body that is positively obligated to enforce the Convention, since its interpretation is both conclusive and authoritative.

The rights of every European citizen cannot be separated by ‘dividing lines’, defined by varying moral and cultural traditions: they must be interpreted in the same manner throughout Europe, as people should be entitled to the same ‘umbrella’ of protection. The Convention’s Preamble is explicit in mandating this very requirement, which culminates in the realization of true integration between member states. This goal could never be fulfilled if national particularities, and especially those imbreaching individual rights, were to be maintained.

The tenet of the margin of appreciation is a creation of Strasbourg institutions. The first time it was utilized by the ECtHR was in the case of Handyside v. United Kingdom of 7.12.1976[74]. It was then subsequently used indirectly by the Committee that enforces the ICCPR[75], and directly by the Inter-American Court of Human Rights[76], a judicial body that regularly references ECtHR case-law.

Following that, the ECtHR has issued a number of judgments where the principle of the “margin of appreciation” has been consistently used. Nonetheless, it is submitted that, in practice, it undermines the protection of rights and freedoms of European citizens, as it affects the unfettered enjoyment of their protected rights. Moreover, the notion of the “margin of appreciation” does not have a clearly defined nature. As such, it becomes counter-productive in view of the aim of effective application of the Convention, especially since rights are meant to be interpreted in a clear and precise manner[77].  Recently, however, there has been a discernible effort to limit its use, although Strasbourg’s resolve will be seriously tested in the adjudication of Lautsi v Italy in its Grand Chamber. In this case, the Court’s own strength will be tried, as it will be called to pass judgment in view of the virtually unanimous reaction by a member state towards its prior ruling. Will it resort to its diplomatic ‘weapon’, the all-too-well-known “margin of appreciation”? Only time will tell…

Undoubtedly, the principle of the “margin of appreciation” is a construction of the Court.  It would be a gesture of consistency with the purposes of the Convention, but also towards the realization of effective and homogenous human rights protection, if the ‘maker’ were to destroy his own creation. It would be an act born of bravery but also a move of substance… Perhaps it would not be much to Lord Hoffmann’s liking, but it would certainly find many others in agreement.

  1. The Court gazing at its next 50 years – Problems and Prospects

Is Strasbourg a perfect court? The answer is, of course, negative: without a doubt, it is not perfect. Nonetheless, it is the best our planet has to offer for human rights on a regional and international level. After all, the only court that could be “perfect” would be one that does not adjudicate or issue judgments.  The ECtHR, however, is a judicial body that has given a lot to European natural and legal persons, whilst acting as a role model for many other courts around the world. Even so, a very good court can always become better – or, indeed, excellent, which is precisely what the beginning of the next 50 years calls for. The gradual upgrading of the Court, the furthering of rights and the European integration of human rights through homogenous protection, without exceptions and “margins of appreciation”, must be the next goal.

With all due respect to Strasbourg institutions, I will attempt to make a few remarks on the weaknesses of the Court, with the aim of contributing to its improvement.

I will not deal with the well-known problems (increase in lodging applications[78], thousands of pending cases[79], etc.): Protocol No. 14 of ECHR, which was ratified by Russia on 22.01.2010 and will come into force on 1.05.2010, is step in the right direction. Hence, I will refer to two pressing problems that have not received adequate coverage, having thus escaped the spotlight of attention.

I) Decisions on the inadmissibility of cases and the lack of transparency in the Court

The Court demonstrates two sides. One side is that which is visible and well-known. It is its projected “image”, which is mainly shaped by its “dynamic” and “evolutive” jurisprudence, the way ECHR rights are protected and the personalities of many of its judges. It is the side that granted great fame and prestige to the Court. This is the part where, as a rule, praise can be found and almost no adverse criticism exists[80]. Included in this section are publicity, decisions, press releases, speeches, lectures, the excellent site, reports and commentaries in legal journals, books, authors, judges, lawyers etc., coming from national and international courts. Within the framework of the sum of Strasbourg judgments, however, this part only amounts to 6,5% of these[81], which is the percentage of petitions that actually end up being examined on their merits by the 7-member Chambers of the Court!

The second side is the invisible face of the Court. It represents 85% of the total applications of European citizens, a part that amounts to more than 8/10 of the cases. It is the side that books, blogs, academics, the press and television do not get involved with. It is the part where no drum-rolls are to be heard; only silence. It is a vast cemetery hosting the last hopes of European citizens[82].

Undoubtedly, the overwhelming majority of applications reaching Strasbourg are clearly inadmissible. Many applicants resort to Strasbourg either because they misunderstand the meaning of a fair trial, because they misinterpret the ECHR or because they are completely unaware of the Court’s jurisprudence. Indeed, a great number of them may be driven by despair, due to their judicial failures in their own, national courts. Certainly, not all claims can be justiciable, however it is difficult for me to believe that 85% of individual applications are truly and objectively inadmissible[83]. The bitterness borne by the applicants is much greater than that which is considered reasonable by Strasbourg. The ignorance and impulsiveness of the applicants are not the only factors that should be blamed for this: the Court is also liable for the manner in which it operates.

The process followed in relation to obviously inadmissible applications is absolutely non-transparent. The procedure governing admissibility is an “obscured” process, in which applicants have absolutely no involvement and no entitlement to any explanation or observation, nor are they ever updated on the progress of their application. Apart from this, the decision which is issued and announced to them is in the form of a simple letter, which is drafted in an unacceptable style for a court of human rights, as it bears no mention whatsoever of the reasoning behind the decision. The only thing that it does mention is that “the Court has found no violation of the rights and freedoms guaranteed by the Convention and its Protocols”, adding that no documents from the case file will be returned to the applicant. Moreover, it provides that no additional details will be issued and that the Court will not respond to any further correspondence.

According to the Court[84], even where manifestly inadmissible petitions are concerned, there is a written summary statement on the reason(s) why each application is rejected as inadmissible. Therefore, if a reason does exist, why is it not communicated to the applicant? Why should there be such ‘opaqueness’ in a court which should, above all, remain transparent? Moreover, if the reasoning for the inadmissibility of a petition were to be communicated and made public, this would benefit both the applicants (who will know the reasons for the rejection of their petition and will, therefore, not repeat the same mistakes) and the Court, as it might then receive fewer applications and thus have its workload reduced.

By espousing the abovementioned non-transparent way, there is a strong reaction from the 85% of unsuccessful applicants, which could be reduced or even eliminated if Strasbourg hadn’t chosen to raise this impenetrable “wall”. This entire issue could be resolved in a simple way. Prior to the issuing of decisions by the three-member Committees, a relevant recommendation is made by the national Secretariat, which is a body familiar with the national language of the applicant, as well as with the relevant national legislation. This recommendation could be communicated to the applicant so that he, in turn, would be able to reply with a relevant memorandum providing clarifications, within a 10-day time limit. Thus, the three-member Committee, or a Single Judge from 1.05.2010 (after the application of Protocol No. 14 of ECHR), would be able to reach a judgment by drafting a brief statement that will also take into consideration the views and answers of the applicants. This statement would then be made public and it will be communicated to the applicant, thus abolishing this well-known, thoroughly inappropriate letter of response. In essence, the sum of the ‘extra burden’ that will be placed upon the Court will be the drafting of just one more document, while the benefits will be multiple.

In any case, and during all stages of procedures, article 45(1) ECHR is applicable, explicitly stating that “Reasons shall be given for judgments, as well as for decisions declaring applications admissible or inadmissible”. Therefore, is there any reason why decisions declaring applications inadmissible should not be justified? And, more to the point, why should the reasoning for reaching such a decision be “hidden” and obscured, rather than being public? Can’t the Strasbourg Court apply the Convention to 9/10 of its cases? Is this, truly, its prerogative?

 II) National languages and Strasbourg.

The Convention, in two of its articles (5(2) and 6(3)(a) and (e)), refers to the necessity of using national languages. In addition, each applicant may file his application in his own native language. The procedure in his own language is followed by Strasbourg in the first phase of the procedures, until the declaration of the application as admissible, or until the notification of the application file to the respondent state’s government. Following that, the applicant is obliged to participate in the procedure in one of the two official languages of the Court (English and French). Furthermore, the rulings of the Court’s Divisions are issued in one of the aforementioned two languages, while the rulings of the Grand Chamber are issued in both languages.

Strasbourg is a human rights court that victims of violations carried out by state institutions turn to. Many of those applicants are poorly educated, while probably most of them do not know any language other than their own. Thus, the requirement that applicants must have an excellent command of the two official languages, especially when set by a court whose very mandate is to protect human rights, appears to be contrary to the purposes of this type of judicial body.

What is even more unfortunate for those who deal with human rights (experts, professors, specialists, scientists, etc.) and participate in various committees for the drafting of international agreements, is that they have never been victims of human rights violations themselves, whilst they do have knowledge (possibly of many) foreign languages. As a result, the institutional service for the realization of human rights is implemented on a framework that serves the specialist and the knowledgeable, rather than those who the Convention seeks to protect. Thus, in reality, the mechanisms are “assembled” in such a way as to suit the multilingual and educated connoisseurs, instead of serving the uneducated and monolingual victims.

As a result of the above, the former demand from the latter (who, for example, may be farmers in Romania) to have a perfect knowledge of French in order to understand the comments of the Romanian government. At the same time, the said government, instead of sending these comments in Romanian does so in French. In turn, the petitioners have to answer in a language that they don’t know and, ultimately, the decision that concerns them directly ends up being in French, which is a language that they do not understand. In fact, what takes place is a procedure examining the violation of a Romanian’s human right – which he is unable to understand – resulting in a ruling[85] that is only understood by the Court that has issued it, rather than by the person it concerns!

And yet, Strasbourg is not so far away from the city of Luxembourg, where another international court – the ECJ and its Court of First Instance – is located. In this court, where human rights do not form part of its direct area of competence, and where the litigant parties are states or mainly large corporations with capable, experienced and multilingual staff and lawyers, a process understandable to everyone has nonetheless been established. Petitions are lodged in the national language of the applicant and the judgment is also issued in this language as well. Consequently, the entire process is fully accessible to all, from its beginning and up to the issuing of the court’s ruling, while everyone concerned is thereafter kept informed.

I cannot help but wonder: why does something that is so obvious and reasonable for Luxembourg, appear to be so exotic, difficult and unusual for Strasbourg?

III) Just Satisfaction and legal expenses in the case-law of Strasbourg

 A serious issue is that regarding the amount of satisfaction that the European Court of Human Rights awards for non-pecuniary damage.

The European Court of Human Rights has so far shown timidity in “just satisfaction”. This timidity leads inter alia to the selective and unequal protection of human rights.[86] In cases which refer to the violation of property rights, “just satisfaction” is generally interpreted to mean the monetary compensation which (correctly) covers the total damage that the applicant suffered and therefore, it annuls the consequences of the violation of his/her rights. However, if the damage is moral, usually the European Court of Human Rights proves to be “extremely prudent”[87] and either it is satisfied that simply finding a violation to be “just satisfaction” suffices, or it awards a rather exiguous or inadequate compensation. A good example of the former is the leading case of McCann v. United Kingdom[88] where three unarmed Irish men, who were members of a terrorist organization, were killed in cold-blood by the British Special Forces. The European Court of Human Rights ascertained that it constituted a violation of Article 2 of the ECHR (right to life), nevertheless, the ‘Court’ held that it was not necessary to award a further “just satisfaction” to the parents of the victims beyond the finding of the violation.

The ECtHR on the award of satisfaction has not yet established in its case-law any legal principles that govern the amount of damages it should award. The only exception appears to be the cases that concern violations of trial within a reasonable time[89], in which there seems to be at least some regularity regarding the size of the financial damages and these are the only cases which reflect reality and somehow satisfy the applicants.

Therefore, on the issue of non-pecuniary damages in the case-law of Strasbourg there is obviously a lack of clear principles on how damages are awarded and the amount of damages.[90] Generally the judges of Strasbourg appear to be reluctant on the issue of the detailed calculation of just satisfaction[91].

Dinah Shelton[92] observes that: It is rare to find a reasoned judgment articulating the principles on which remedy is afforded[93].  Moreover, the reasoning of judgments of the ECtHR, as far as the award of “just satisfaction” is concerned, is often perfunctory or non- existent. In the most cases one can only speculates how the ECtHR arrived at a judgment[94].

Generally in this matter the case law of the ECtHR lacks coherence. The lawyers, applicants and judges are in danger of wasting time attempting to identify principles that do not exist[95].

Grosz, Beatson and Duffy comment that:

“The Court has used the ‘equitable basis’ formulation to cloak the fact that, to all appearances, the figures which it arrives at are based neither on any detailed calculation nor any discernible principle.  The student of the Court’s practice is left wondering whether the process by which the Court arrives as its judgment is anything more sophisticated than sticking a finger in the air or tossing a coin”[96].

Furthermore, it is a fact that the ECtHR awards damages for moral injury of an extremely low monetary sum for violations of fundamental rights, for violations of rights that are protected by the provisions of Articles 2, 3, 5, 8, 10 and also the same applies to the most frequent kind of violations in Article 6 (except for cases regarding trial within a reasonable time). Extremely low sums are awarded for violations concerning the right of having access to court.

The same applies to the costs and expenses that fall short of the real expenses and they undermine the ECtHR, given that the ECtHR itself admits that the remuneration of the applicants’ lawyers ought to be low. The adjudicated sums do not correspond to the prestige of the ECtHR nor to the extent and quality of legal work which is necessary. This issue could have been resolved through the enactment of particular rules and figures for the costs and expenses of the applicants.

In these areas, the ECtHR has noticeably distanced itself the prevailing economic circumstances and from the present reality, perhaps forgetting that the perpetrator of such violations is the state which has an economic strength in relation to the victims. The award of small sums of money as damages humiliates and weakens the protective scope of a fundamental right and gives the perpetrator the right to repeat the violation as the sanction does not have a real consequence.

IV) Reasoning of Strasbourg judgments

An equally important issue in many of the judgments of the ECtHR is that they are not duly motivated and that they are inconsistent[97]. Apart from decisions on admissibility, in which reasoning is almost non-existence (and even in these cases the right to appeal is not provided), judgments on merit do not always comply with the principle of adequate motivation.[98]

Regarding judgments on merit sometimes serious doubt is created regarding their quality and generally the proper way of reasoning[99]. In many instances, especially in cases that were declared inadmissible, the reasoning is not only elementary but also defective since it does not address the complaints of the applicants at all.

A more careful approach of the Strasbourg Court would have been to welcome European citizens since the “Court’ which issues judgments against European countries, on the ground that they are not duly motivated, is not really able to not apply this principle in its reasoning. The requisite of third party reasoning must be the rule for all of its judgments, without exception.

V) Significant support of the role of the ECtHR Registry, after Protocol No.14 came into force declaring individual application inadmissible

As it is already known, Russian Duma ratified Protocol No.14 of the ECHR, which will come into force on 1st May 2010. After its implementation the role of the Registry will be upgraded to play a more dominant role, given that for the first time the institution of Rapporteurs is to be introduced who, according to the amended Article 24 par. 2 of the ECHR[100], will assist the judge of the Single Judge Chamber. Since this judge will be solely responsible for decisions regarding the admissibility of an individual case (this  judge will not be the national judge), one is able to apprehend the power that the national Registry gains on the issue of admissibility of applications, given the fact that in practice only the Rapporteur will be able to deal with the subject-matter of a national application which will be in the national language and all the accompanying papers (judgments, legal documents etc) will be in the same language. Practically, the recommendation of the Registry will form the judgment of the judge on the issue of admissibility[101].

  1. Conclusion

In the end, what is the European Court of Strasbourg? Is it a court with paternalistic aspirations and constitutional visions that should arouse fear to national judges? Is it a court that arbitrarily intervenes within the legal space of member states or a court that, rather than generating jurisprudence, legislates in an indirect way? Or is it, ultimately, a court that will protect European citizens and substantiate the materialization of human rights?

The European Court of Human Rights, irrespective of its potential weaknesses, is a court that deals with humans, human values and human dignity. It seeks, through routes resembling the mythical steep passages of the Symplegades, to consolidate and promote human rights and to integrate human values. It is the Court that brought human rights “to life”, gave them real substance and imposed their effective implementation. It is the last gateway of human hope in the whole of Europe. Let us be proud for having it and let us feel fortunate that there are Judges in Strasbourg. Its existence and operation is one of the best things that have happened in Europe over the past 50 years. …

 

 

 

 

 

[1]. Hereinafter referred to as: the ECtHR; or the Court.

[2]. Hereinafter referred to as: the ECHR; or the Convention.

[3]. Belarus is not a signatory to the ECHR, nor is it yet a member of the Council of Europe.

[4]. The only other more generally drafted, regional Convention on human rights is the African Charter on Human Rights and People’s Rights, which is also more recent (adopted in 1981).

[5]. Adopted in 1969.

[6]. Adopted in New York on 16.12.1966.

[7]. For the complete text of Lord Hoffmann’s speech, see http://www.jsboard.co.uk/aboutus/annuallectures.htm [page last visited on 3.12.2009]

[8]. See, Afua Hirsch “Judges: can’t live with ’em…”, article in The Guardian online edition (6.4.2009), available at http://www.guardian.co.uk/commentisfree/libertycentral/2009/apr/06/law-eu [page last visited on 26.10.2009]

[9]. See R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.1), [2000] 1 A.C. 61, where he was one of the judges hearing the appeal on the extradition of former Head of State of Chile, Augusto Pinochet, to Spain. In that case, Amnesty International had been allowed to intervene in the appeal. Lord Hoffmann had been an unpaid director and chairman of Amnesty International Charity Ltd. since 1990, while his wife, Gillian, had been an administrative assistant for Amnesty’s London office for 21 years. Following the revelation of his affiliation with the organization, his participation at the bench was subsequently challenged on the grounds of bias, resulting in the setting aside of the judgment previously delivered and the ordering for a rehearing of the case by a differently constituted committee. [See R v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.2), [2000] 1 A.C. 119.

[10]. See, “A look at Lord Hoffmann”, article in the online edition of BBC NEWS (17.12.1998), available at http://news.bbc.co.uk/2/hi/uk_news/235456.stm [page last visited on 26.10.2009], where Lord Hoffmann is portrayed as a “arming and urbane” man, who tried to simplify his daily routine as a judge by arriving at the judges entrance of the Court of Appeal “on his bicycle wearing a T-shirt”, but also of a man of quality who was an opera lover, etc.

[11]. See the article on Lord Hoffmann in The Times online edition (21.4.2008), available at http://business.timesonline.co.uk/tol/business/law/article3758397.ece [page last visited on 26.10.2009]

[12]. Belmarsh detainees case, A v SSHD [2004] U.K.H.L. 56.

[13]. Ibid., para. 97.

[14]. A v Secretary of State for the Home Department [2005] U.K.H.L. 71.

[15]. Ibid., para. 82.

[16]. The New York Twin Towers, etc.

[17]. Jameel (Mohammed) and another v Wall Street Journal Europe Sprl [2006] U.K.H.L. 44.

[18]. Ibid., para. 57.

[19]. Ibid., para. 55.

[20]. Twinsectra v Yardley (trust law) [2002] 2 A.C. 164; and MacNiven v Westmoreland (tax law) [2003] 1 A.C. 311 are two of the most representative examples of Lord Hoffmann’s approach in relevant case-law.

[21]. See supra note 7.

[22]. See article in the Solicitors Journal of 7.4.09, at www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=14002&c=1&eclipse_action=getsession [page last visited on 3.12.09]

[23]. Belmarsh detainees case, supra note 12.

[24]. Ibid., para. 92.

[25]. Ibid., para. 93.

[26]. A notable response to Lord Hoffmann is that of Mr Christos Rozakis, the Vice-President of the ECtHR, who refutes the accusations of the former higher court judge in an article entitled “Is the Case-Law of the European Court of Human Rights a Procrustean Bed? Or is it a Contribution to the Creation of a European Public Order?  A Modest Reply to Lord Hoffmann’s Criticisms”, published in a recent issue of the UCL Human Rights Review (2009).

[27]. Dissenting opinion of judge Pavlovschi in the case of O’ Halloran and Francis v United Kingdom, case number 15809/02 and 25624/02, of 29.06.2007.

[28]. Ibid.

[29]. See Birmingham City Council v Oakley [2001] 1 A.C. 617, at 631-632.

[30]. He is referring to Mr Zupančič and his opinion in the ECtHR judgment Von Hannover v. Germany, of 24.6.2004.

[31]. ‘Nomiko Vima’ 56 (2008), pp. 538-543 (issue 3).

[32]. See, inter alia, Ruiz Torija v Spain, judgment of 9.12.1994, para. 29, series A, number Α-303; and Van de Hurk v the Netherlands, judgment of 19.04.1994, para. 61, series Α, number 288.

* Translator’s note: The Hellenic Supreme Court is located at Alexandras Avenue in central Athens.

[33]. George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP, 2007), chapter entitled “Evolutive Interpretation:  Truth Not Current Consesu”s, pp. 75-76.

[34]. See the criminal law judgment of the Areios Pagos ΑΠ 547/2008, ‘Nomiko Vima’ issue 56, p. 1910 et seq., with commentary by V. Chirdaris. In this case, the Areios Pagos engaged in a jurisprudential construction though its interpretation of EU legislation, in manner that was contrary to ECJ case-law, even though it was binding for the Greek Court.

[35]. See http://www.areiospagos.gr [page last visited on 4.12.09]

[36]. ‘Nomiko Vima’ (2008), volume 56, pp. 2727-2733

[37] ‘Nomiko Vima’ (2006), volume 54, p. 1170 et seq., with commentary by V. Chirdaris.

[38] ‘Nomiko Vima’ (2007), volume 55, p. 206 et seq., with commentary by V. Chirdaris.

[39] ‘Nomiko Vima’ (2007), volume 55, p. 2212 et seq., with commentary by M. Margaritis.

[40] ‘Nomiko Vima’ (2007), volume 55, p. 206 et seq., with commentary by V. Chirdaris.

[41] ‘Nomiko Vima’ (2009), volume 57, (March-April issue), p. 738 et seq.

[42] ‘Nomiko Vima’ (2009), (November issue), with commentary by S. Glentzi.

[43]. Michele de Salvia, Compendium de la CEDH, Vol.1. Jurisprudence 1960 à 2002 , Ν.P. Engel, Kehl, Strasbourg, Arlington, Va, p. 9.

[44]. Marckx v Belgium, ECtHR judgment of 13.6.1979.

[45]. Guzzardi v Italy, ECtHR judgment of 6.11.1980, para. 95; and Johnston and Others v Ireland, ECtHR judgment of 18.12.1986, para. 53.

[46]. Airey v Ireland, ECtHR judgment of 9.10.1979, pp. 14-15, para. 26; and Annoni di Gussola and Others v France, ECtHR judgment of 14.11.2000, para. 56.

[47]. Jean-Loup Charrier Code de la Convention européenne des droits de l’homme,  p. 2, G. Van Des Mersch, Le caractère « autonome » des termes et la « marge d’appréciation » des gouvernements dans l’interprétation de la Convention européenne des droits de l’homme in Mélanges Wiarda, Cologne 1988, p. 202. – V. également C. Russo, Commentaire sous article 8 in Pettiti, Decaux et Imbert, La Convention européenne des droits de l’homme, Économica 1995, p. 308.

[48]. See Application no. 5856/72, Tyrer v United Kingdom (1979-80) 2 E.H.R.R. 1, also available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=tyrer&sessionid=39012524&skin=hudoc-en [page last visited on 8.12.2009]

[49]. Section 56 (1) of the Petty Sessions and Summary Jurisdiction Act 1927 (as amended by section 8 of the Summary Jurisdiction Act 1960).

[50]. See para. 33 of the Tyrer v. United Kingdom judgment mentioned above, where the reasoning leading to the Court’s findings incorporates considerations of the detrimental psychological effects to the convicted party from this type of punishment. These include the stress related to the anticipation of violence that was about to be administered against him, as the sentence had not been carried out immediately but, instead, he was waiting for its execution.

[51]. Christine Goodwin v. United Kingdom, ECtHR judgment of 11.7.2002, para. 100.

[52]. George Letsas, A Theory of Interpretation of the European Convention on Human Rights, supra note Σφάλμα! Δεν έχει οριστεί σελιδοδείκτης., p. 74.

[53]. Ibid.

[54]. Sir Thomas Bingham MR, in R v Ministry of Defence, ex parte Smith (1996) Q.B. 517, pp. 553.

[55]. Judgment of 1.4.2008 (Grand Chamber), Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757. See report and commentary by V. Chirdaris in Nomiko Vima (2008), p. 767 et seq.

[56]. Judgment of 27.11.2007 of the European Union Civil Service Tribunal (First Chamber), Case F-122/06 Anton Pieter Roodhuijzen v Commission (not yet reported in the ECR). See report and commentary by V. Chirdaris in Nomiko Vima (2008), pp. 781-882.

[57]. Roman law codifies environmental nuisances as immissiones in alienum. Dig.8.5.8.5 Ulpianus 17 ad..ed. See http://www.thelatinlibrary.com/justinian/digest8.shtml [page last visited on 8.12.2009]

[58]. See, inter alia, Powell and Rayner ν UK, February 21, 1990, Series A, No.172; 12 E.H.R.R. 355; Lopez Ostra ν Spain, December 9, 1994, Series A, No.303-C; 20 E.H.R.R. 277; BalmerSchafroth ν Switzerland, August 26, 1997, RJ.D. 1997-IV; Guerra ν Italy, February 19, 1998, RJ.D 1998-1; Athanassoglou ν Switzerland, April 6, 2000, ECHR 2000-IV; Hatton ν UK, July 8, 2003, ECHR 2003-VIII; Taskin ν Turkey, November 10, 2004, ECHR 2004-X; and Fadeytva ν Russia, June 9, 2005, ECHR 2005.

[59]. Application no. 36022/97, Hatton and Others v United Kingdom, judgment of 2.10.2001.

[60]. Joint dissenting opinion of judges COSTA, RESS, TÜRMEN, ZUPANČIČ and STEINER in the Grand Chamber judgmetn in Hatton and Others v United Kingdom, judgment of 8.7.2003.

[61]. López Ostra v Spain, judgment of 9.12.1994.

[62]. Fadeyeva v Russia, judgment of 9.6.2005.

[63]. Guerra and Others v Italy, judgment of 19.2.1998.

[64]. Moreno Gómez v Spain, judgment of 16.11.2004.

[65]. See the relevant article by Keenan D. Kmiec, “The Origin and Current Meanings of ‘Judicial Activism’”, (2004) California Law Review, providing an extensive overview of judicial activism, both in a theoretical, as well as in a historical sense.

[66]. In contrast, ECtHR case-law on Article 6 ECHR is not particularly dynamic or evolutive.

[67]. See Lord Hoffmann’s contribution in the NewTalk web discussion on the role of the courts in making social policy, available at http://newtalk.org/2008/07/what-is-the-role-of-the-courts.php [page last visited on 8.12.2009].

[68]. Howard C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijhoff, 1996); Eva Brems, “The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights” 56 Heidelberg Journal of International Law (1996) 240.

[69]. See C. Rozakis, “The Jurisprudence of the European Court of Human Rights: Bed of Procrustes or a Contribution to European Integration?” Nomiko Vima (2009), p. 1833 et seq.

[70]. Casado Coca v Spain, judgment of 24.02.1994, para. 50; Jacubowski v Germany, judgment of 23.06.1994, para. 26.

[71]. Chorherr v Austria, judgment of 25.08.1993, para. 31.

[72]. Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia Publishers, 2002); and Eyal Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards” 31 International Law and Politics (1999) 843.

[73]. Onder Bakircioglu, “The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases” 8 German Law Journal (2007) 711.

[74]. See C. Rozakis, supra note 69.

[75]. Case of Shirin Aumeeruddy-Cziffra and Others v Mauritius, Communication No. R.9/35 (2 May 1978), U.N. Doc. Supp. No. 40 (A/36/40) at 134 (1981), para. 9.2(b)2(ii), available at http://www.unhcr.org/refworld/category,LEGAL,,,MUS,3f520c562,0.html [page last visited on 8.12.09].

[76]. Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 (Jan. 19 1984), Inter-American Court of Human Rights (Ser. A) No. 4, paras. 56-5.

[77]. Yuval Shany, “Toward a General Margin of Appreciation Doctrine in International Law” 16 European Journal of International Law (2005) 907.

[78]. There were 52.200 applications lodged during the first 11 months of 2009, while during the same period in 2008, the number of applications was 46.250 (13% increase).

[79]. Up to 31.10.2009, the number of outstanding petitions was 117.850, this being an increase of 21% from 1.1.2009 (97.300).

[80]. The two national judges mentioned above – and nobody else – are the only people who attempted to create the first crack in the excellent image of the Strasbourg Court. Until recently, member states had not adopted a critical stance towards Strasbourg jurisprudence. An indirect indication of dissatisfaction that arose following the rulings regarding Chechnya was seen in Russia’s diplomatic reaction of not ratifying, for four years, the Protocol No. 14, thus creating relevant operational problems for the Court. Following the well-known ruling of 03.11.2009 in Lautsi v Italy (a case on the banning of crosses in Italian schools), the whole of Italy (the government, most of the opposition, but also the majority of the Italian citizens) attacked Strasbourg by characterizing the judgment as “shameful”, “short-sighted” and “insulting to the national identity of Italy”.

[81]. From data provided by the Court, updated up to 30.10.2009.

[82]. See also the reflections of Mr. Jean Paul Costa, President of the ECtHR on the inadmissible applications, in «Memorandum of the President of the European Court of Human Rights to the States with a View to Preparing the Interlaken Conference» (July 3, 2009), p.2.

[83]. As far as Greek cases are concerned, the percentage is significantly lower. Approximately 55% of the manifestly inadmissible applications can be considered as a reasonable percentage.

[84]. See Marialena Tsirli, “The European Court of Human Rights and manifestly inadmissible cases: The invisible side of the iceberg”, 55 Nomiko Vima (2007), p. 618 et seq.

[85]. It should be noted that in an English blog (see htpp://ipkitten.blogspot.com/2005/10/translation-watch-latest-eipr.html) complaints are raised about the Strasbourg judgment in Anheuser-Busch Inc v Portugal, questioning why the decision is written in French and not in English, so as to be understood by English citizens and lawyers as well. What can the rest of European citizens say, who are neither English, nor French-speakers…

[86]. C. Chysogonos, “The ECHR a half century later”, The Constitution: A bimonthly review of constitutional theory and practice, Issue 5/2001

[87]. Ibid.

[88]. Series A, No 324, Application No 18984/91(1995)

[89]. See in detail E. Salamoura, “The right to be tried within a reasonable time and the restoration of the party’s “presumptive” prejudice”, 57 Nomiko Vima (2009), p. 2009 et. seq

[90]. Damages under the Human Rights Act 1998, Report on a Reference under Section 3(1)(e) of the Law Commissions Act 1965,

[91].  K. Reid, A Practitioner’s Guide to the European Convention on Human Rights , Sweet & Maxwell, London (1999) p. 398

[92]. Professor of International Law at George Washington University

[93]. Remedies in International Human Rights Law, 2nd ed, Oxford,(1999) p.204.

[94]. Ibid. 88

[95]. Lord Lester of Herne Hill and D. Pannick, eds. Human Rights Law and Practice (Butterworths,1999), para 2.8.4.

[96]. S. Grosz, J. Beatson and P. Duffy, Human Rights: The  1998 Act and the European Convention ( Sweet & Maxwell, London, 2000),para 6-21.

[97]. J.H. Gerards, “Judicial deliberations in the European Court of Human Rights”.

[98]. T. Barkhuysen and M. Van Emmerik “Legitimacy of the ECtHR judgments: procedural aspects”,cited in in the legitimacy of highest courts’ rulings: judicial deliberations and beyond”, the Hague,the Netherlands, T.M.C, Asser Press.

[99]. Ibid.

[100]. See article 14 of Protocol No. 14

[101]. Α .Lester “The European Court of Human Rights 50 years later” E.H.R.L.R (2009), p.470


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