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Searching for the Legitimacy of the European Court of Human Rights: The Neglected Role of ‘Democratic Society’

Published online by Cambridge University Press:  07 March 2016

ALAIN ZYSSET
ALAIN ZYSSET*
Affiliation:
European University Institute, Via dei Roccettini, 9, 50014 San Domenico di Fiesole, Italy
*
*Email: [email protected]
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Abstract:

In this article, I argue against the claim that the practice of the European Court of Human Rights cannot be reconciled with the democratic-procedural standards by which state parties, in accordance with the principle of subsidiarity, decide about the content and scope of human rights norms. First, I suggest drawing the attention to the neglected balancing exercise of the review process, in which the Court has to determine whether a violation is nevertheless ‘necessary in a democratic society’. Second, I shed light on the role that ‘pluralism’ plays in the balancing (with particular emphasis on Articles 8–11). Third, I argue that Thomas Christiano’s egalitarian argument for democracy can best illuminate the Court’s reliance on pluralism.

Keywords

balancingdemocracyEuropean Court of Human Rightslegitimacymargin of appreciation
Type
Research Article
Information
Global Constitutionalism , Volume 5 , Issue 1 , March 2016 , pp. 16 - 47
Copyright
Copyright © Cambridge University Press 2016 

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References

1 The limited purpose of the ‘alarm bell’ system would therefore explain the quasi-judicial character of the Court, which lasted until the introduction of Protocol 11 in 1949. As to the Court more specifically, Bates explains that ‘it would be the conscience of the free Europe, acting like an “alarm bell” warning the other nations of democratic Europe that one of their number was going “totalitarian”. At this stage, then, the human rights guarantee was minimalist in its ambition’. Bates, E, ‘The Birth of the European Convention on Human Rights’ in Christoffersen, J and Madsen, MR (eds), The European Court of Human Rights between Law and Politics (Oxford University Press, Oxford, 2011) 21.Google Scholar

2 In his seminal article, Moravcsik argues that neither realism nor idealism explains the state’s acceptance of the Court’s compulsory jurisdiction and the right to individual petition, which ‘constrain its domestic sovereignty in such an unprecedentedly invasive and overtly non-majoritarian manner’. Rather, the explanation lies in the state’s tactic to consolidate democratic institutions vis-à-vis internal political opponents in times of uncertainty: ‘sovereignty costs are weighted against establishing human rights regimes, whereas greater political stability may be weighted in favour of it’. In Moravcsik, A, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54(2) International Organization 220–1.CrossRefGoogle Scholar

3 For the non-governmental group the ‘European Movement’, which initially formed the project of an international convention in July 1949 in The Hague, the main goal was ‘the creation among the European democracies of a system of collective security against tyranny and oppression’ and that ‘without delay, joint measures should be taken to halt the spread of totalitarianism and maintain an area of freedom’. In European Movement and the Council of Europe (Hutchinson, London, 1949).

4 See (n 1) 39.

5 Most recently, Prime Minister David Cameron included in his agenda for EU reform the following objective: UK police forces and justice systems should be ‘able to protect British citizens, unencumbered by unnecessary interference from the European institutions, including the European Court of Human Rights’. Available at <http://www.theguardian.com/world/2014/mar/16/david-cameron-eu-reform>, accessed 15 January 2015. On the issue of the prisoners’ right to vote, Cameron held in 2009 that ‘it makes me physically ill to even contemplate having to give the right to anyone who is in prison’. Available at <https://www.youtube.com/watch?v=DjzmvvozHuw>, accessed 15 January 2015.

6 Hoffmann, L, ‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19 March 2009, p11 Available at <https://www.judiciary.gov.uk/announcements/speech-by-lord-hoffmann-the-universality-of-human-rights/>, accessed 15 October 2014,+accessed+15+October+2014>Google Scholar.

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8 The group of legal experts mandated by the Committee of Ministers of the Council of Europe (CoE) to examine the Convention’s proposal (in 1949) claimed in their advisory opinion that ‘the jurisprudence of a European Court will never, therefore, introduce any new element or one contrary to existing international law’. Cited in (n 1) 39.

9 For a still-to-date overview, see Mowbray, A, ‘A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights’ (2010) (10)2 Human Rights Law Review 289–317.CrossRefGoogle Scholar

10 This is also where the Court may allocate a margin of appreciation to the respondent state party. The margin of appreciation doctrine is not explicit in the Convention (or in the preparatory works). The doctrine is conceived as justifying the limits of the Court’s interpretive authority on national courts. It is a jurisprudential creation that dates back to the need for acceptability of the Court’s authority vis-à-vis the state parties. As Arai-Takahashi explains, ‘since the inception, this consideration has impacted upon the judicial policy of the Strasbourg organs (the European Court of Human Rights (ECtHR, or the Court) and the erstwhile European Commission of Human Rights) in mitigating “damaging confrontations” between them and the member states by allocating “spheres of authority”’. In Arai-Takahashi, Y, ‘The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg’s Variable Geometry’ in Follesdal, A, Peters, B, and Ulfstein, G (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge University Press, Cambridge, 2013) 62–3.CrossRefGoogle Scholar

11 This is not to say that human rights theorists have not suggested how human rights and democracy connect in moral and abstract terms. Rather, what is missing is a specific assessment of the Court’s ‘democratic society’ on the basis of normative theory. See in particular Besson, S, ‘Human rights and democracy in a global context: decoupling and recoupling’ (2011) (4)1 Ethics & Global Politics 19–50.CrossRefGoogle Scholar See also Forst, R, ‘The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach’ (2010) (120)4 Ethics 711–40.CrossRefGoogle Scholar

12 As De Schutter and Tulkens report, ‘the case law of the European Court of Human Rights has extended this approach to certain rights and freedoms whose formulation in the Convention does not follow this two-tiered structure, progressively developing what may be called a general theory of restrictions to the guarantees of the European Convention of Human Rights’. In O De Schutter and F Tulkens, ‘Rights in Conflicts: The European Court of Human Rights as a Pragmatic Institution’ in Brems, E (ed), Conflicts Between Fundamental Rights (Intersentia, Antwerp, 2008) 200Google Scholar.

13 Handyside v United Kingdom, App No 5493/72 (ECHR, 7 December 1976) at para 49.

14 Ibid.

15 See in particular the critique of the application of Christiano’s argument to judicial review by Brettschneider, C, ‘Judicial Review and Democratic Authority: Absolute v. Balancing Conceptions’ (2011) 3 Journal of Ethics and Social Philosophy, available at <http://www.jesp.org/symposia.php>, accessed 15 January 2015Google Scholar.

16 As Christiano puts it in a reply to his critics, ‘I argue that under the right conditions a system of judicial review of legislation that empowers the judiciary to strike down legislation that violates public equality can be legitimate. This is because a decision of the democratic assembly that violates public equality has no value, so a court that strikes it down will at least have the value that it preserves public equality’. In Christiano, T, ‘Reply to Critics of the Constitution of Equality (2011) 3 Journal of Ethics and Social Philosophy, available at <http://www.jesp.org/symposia.php>, 15 January 2015,+15+January+2015>Google Scholar.

17 The domestic critique can take a radical form. In a seminal article, Jeremy Waldron contends that installing a (supranational) court with the final word over the content and scope of abstract rights ‘inherently and necessarily does an injustice, in its operation, to the participatory aspirations of the ordinary citizen’. See Waldron, J, ‘A Right-Based Critique of Constitutional Rights’ (1993) (13)1 Oxford Journal of Legal Studies 18–51CrossRefGoogle Scholar. See also Waldron, J, ‘The Core of the Case against Judicial Review’ (2006) 115(6) Yale Law Journal 1346–1406.CrossRefGoogle Scholar In the words of Christopher Zurn, Waldron ‘seems to regard most forms of extra-legislative governmental power as regrettable reflections of an anti-egalitarian and anti-democratic bias against ordinary citizens’. Zurn, CF, Deliberative Democracy and the Institutions of Judicial Review (Cambridge University Press, Cambridge, 2007) 145.CrossRefGoogle Scholar

18 See (n 7).

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22 At this stage, the Court reviews whether the legal norm was accessible to the individual. This mostly implies that the law must be published. The Court also reviews whether the legal norm is formulated with the precision as to its meaning and scope – the foreseeability of the law.

23 At this stage of the test, the Court reviews whether the interference pursued a ‘legitimate aim’ – as specified in the second paragraph of arts 8–11: the protection of public safety, public order, health or morals, or for the protection of the rights and freedoms of others, etc). This standard is ambiguous. Its wording suggests that it incorporates a justificatory dimension. However, the Court treats it as an exercise of classification and tends to turn to evaluation only at (or just conflates the stage with the last stage) the stage of ‘democratic necessity’.

24 Arai-Takahashi, Y, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, Antwerp, 2002) 9.Google Scholar

25 Handyside v United Kingdom, at para 49.

26 Ibid.

27 Ibid.

28 Gündüz v Turkey, App No 35071/97 (ECHR, 4 December 2003) at para 51.

29 Ibid.

30 In Stankov and the United Macedonian Organisation Ilinden v Bulgaria, the Court held that ‘demanding territorial changes in speeches and demonstrations does not automatically amount to a threat to the country’s territorial integrity and national security’. In Stankov and the United Macedonian Organisation Ilinden v Bulgaria App Nos 29221/95, 29225/95 (ECtHR, 2 October 2001) at para 97.

31 Lehideux and Isorni v France, App No 24662/94 (ECtHR, 23 September 1998) at para 51.

32 Von Hannover v Germany, App No 59320/00 (ECtHR, 24 June 2004) at para 63.

33 Otegi Mondragon v Spain, App No 2034/07 (ECtHR, 15 March 2011) at para 50.

34 Pentikäinen v Finland, App No 11882/10 (ECtHR, 4 February 2014) at para 51.

35 Erdoğdu and İnce v Turkey, App No 25067/94 (ECtHR, 8 July 1999) at para 51.

36 Çamyar and Berktaş v Turkey, App No 41959/02 (ECtHR, 15 February 2011) at paras 37–38.

37 Christiano, T, The Constitution of Equality: Democratic Authority and Its Limits (Oxford University Press, Oxford, 2010) 75–6.Google Scholar

38 Ibid 154.

39 As Cohen explains, ‘the deliberative conception requires more than the interests of others be given equal consideration; it demands, too, that we find politically acceptable reasons – reasons that are acceptable to others, given a background of differences of conscientious conviction’. Cohen, J, ‘Procedure and Substance in Deliberative Democracy’ in Christiano, T (ed), Philosophy and Democracy: An Anthology (Oxford University Press, Oxford, 2003) 24.Google Scholar

40 See Christiano (n 37) ch 2.

41 Ibid 31.

42 Ibid 152.

43 Ibid 131.

44 Christiano, T, ‘Authority’ in Zalta, EN (ed), The Stanford Encyclopedia of Philosophy (Stanford University, Stanford, CA, 2013) available at <http://plato.stanford.edu/archives/spr2013/entries/authority>, accessed 15 January 2015Google Scholar.

45 See (n 37) 164.

46 As Christiano explains, ‘the first claim must be assessed against the background that the democratic and liberal rights are assured and that each has a basic minimum of material goods. If these latter conditions are satisfied, then it appears that the society is treating its members publicly as equals’. See (n 37) 178.

47 Jersild v Denmark, App No 15890/89 (ECHR, 23 September 1994) at para 31. See also Thorgeir Thorgeirson v Iceland, App No 13778/88 (ECtHR, 25 June 1992) at para 63 and Bladet Tromsø and Stensaas v Norway, App No 21980/93 (ECtHR, 20 May 1999) at para 62.

48 Editions Plon v France, App No 58148/00, 18 May 2004 (ECHR, 18 May 2004) at para 43.

49 Lingens v Austria, App No 9815/82, 8 July 1986 (ECHR, 8 July 1986).

50 Ressiot et autres c. France, App Nos 15054/07, 15066/07 (ECHR, 28 July 2012).

51 Šabanović v Montenegro and Serbia, App No 5995/06 (ECtHR, 31 May 2011).

52 Kania and Kittel v Poland, App No 35105/04 (ECHR, 21 June 2010) at para 47.

53 Lindon, Otchakovsky-Laurens and July v France, App Nos 21279/02, 36448/02 (ECHR, 22 October 2007).

54 Oberschlik v Austria (No 2) App No 20834/92 (ECtHR, 1 July 1997) at para 29.

55 Eon c. France, App No 26118/10 8 (ECtHR, 14 March 2013) at para 60.

56 See (n 37) 166.

57 United Communist Party of Turkey and Others v Turkey, App No 29400/05 (ECtHR, 30 January 1998) at para 57.

58 See (n 37) 166.

59 See Refah Partisi (The Welfare Party) and Others v Turkey, App Nos 41340/98, 41342/98, 41343/98, 41344/98 (ECtHR, 13 February 2003) at para 87.

60 Ibid.

61 Christiano (n 37) 168.

62 Şükran Aydın and Others v Turkey, App No 49197/06 (ECtHR, 22 January 2013) at para 55.

63 Bowman v United Kingdom, App No 24839/94, (ECtHR, 19 February 1998) at para 42.

64 Lykourezos v Greece, App No 33554/03, (ECtHR, 15 June 2006) at para 52.

65 Yumak and Sadak v Turkey, App No 10226/03 (ECtHR, 6 July 2008) at para 108.

66 Ahmed and Others v United Kingdom, App No 22954/93 (ECtHR, 2 September 1998) at para 53.

67 Mathieu-Mohin and Clerfayt v France, App No 9267/81 (ECtHR, 2 March 1987) at para 54.

68 Ibid.

69 See (n 37) 199.

70 In a seminal case, Young, James and Webster v United Kingdom, The Court implicitly rejected the theorising of the public interest: ‘democracy does not simply mean that the views of the majority must always prevail. A balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.’ In Young, James, and Webster v United Kingdom, App Nos 7601/76, 7806/77 (ECtHR, 18 October 1982) at para 63.

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72 For instance, the strong version of the principle is the derogation clause of art 15 ECHR, which establishes that ‘no more than absolutely necessity’ considerations justify interfering with those rights.

73 See (n 71) 414.

74 Ibid.

75 Ibid 413.

76 Letsas, G, ‘Two Concepts of the Margin of Appreciation’ (2006) (26)4 Oxford Journal of Legal Studies 711.CrossRefGoogle Scholar

77 Mowbray, A, ‘Between the Will of the Contracting Parties and the Needs of Today’ in Brems, E and Gerards, J (eds), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press, Cambridge, 2013) 36.Google Scholar

78 This is the case for instance of scientology: ‘in the absence of any European consensus on the religious nature of Scientology teachings, and being sensitive to the subsidiary nature of its role, the Court considers that it must rely on the position of the domestic authorities in the matter and determine the applicability of Article 9 of the Convention accordingly’. In Kimlya and Others v Russia, App Nos 76836/01, 32782/03 (ECtHR, 1 October 2009) at para 79.

79 See (n 6) 106.

80 This term is owed to Samantha Besson. ‘Jurisdictional subsidiarity’ is one dimension of subsidiarity in the context of the Court. In addition, ‘interpretive subsidiarity’ refers to the allocation of the margin of appreciation and ‘remedial subsidiarity’ to the freedom left to state party to choose how to execute its conventional obligations. Finally, ‘remedial subsidiarity’ refers to the freedom left to states to choose how to execute their conventional obligations. See in particular S Besson, ‘European Human Rights, Supranational Judicial Review and Democracy – Thinking Outside the Judicial Box,’ in P Poepelier, Van de Heyning, C, and Van Nuffel, P (eds), Human Rights Protection in the European Legal Orders: Interaction between European Courts and National Courts (Cambridge University Press, Cambridge, 2011)Google Scholar.

81 See Wheatley (n 7) 100.

82 Ibid 105.

83 Ibid 106.

84 Ibid 104.

85 Ibid 108.

86 Ibid.

87 Ibid 103.

88 See Bellamy (n 19) 1025.

89 Ibid 1029.

90 Ibid 1026.

91 Ibid 1034.

92 Ibid.

93 Ibid 1037.

94 See (n 81).

95 See (n 19) 1036.

96 See (n 7) fn 55.

97 Ibid, 1034.

98 See Letsas (n 20) 520.

99 Ibid 540.

100 I discuss this point in more detail elsewhere. See Zysset, A, ‘The Judge at the European Court of Human Rights: “Moral Reading” of Human Rights or Just “Reading of Moral Rights”? A Critique of Letsas’ in S Besson and A Ziegler (eds), The Judge in International and European Law (Schulthess, Zurich, 2013) 281–99.Google Scholar

101 Following Peter Railton’s classical definition, the realists’ ‘generic stratagem’ is to ‘postulate a realm of facts in virtue of the contribution they would make to the a posteriori explanation of certain features of our experience’. In Railton, P, ‘Moral Realism’ (1986) 95(2) The Philosophical Review 171–2CrossRefGoogle Scholar.

102 Letsas, G, The ECHR as a Living Instrument: Its Meaning and Its Legitimacy in Follesdal, A, Schaffer, JK, and Ulfstein, G (eds), The Legitimacy of International Human Rights Regimes (Cambridge University Press, Cambridge, 2013) 124Google Scholar.