Blog post by Dr Françoise Tulkens, Vice-President and Judge Emeritus at the ECtHR
Introduction
Reflecting on the role of academic work at the European Court of Human Rights (ECtHR) enables me to reconcile my double life as an academic (researcher at the National Fund for Scientific Research in Belgium and Professor of Law and Criminology at UCLouvain for 30 years), and as a judge at the ECtHR for 14 years.
When asked ‘can the ideas developed by academics change the way certain issues are judged by the Court?’, my answer is yes, and I would add: the Court needs academic work, work that is intelligently critical, pertinent and even impertinent, to enable us to see more clearly, to see further. The law often needs to be illuminated and put into perspective if we are to rethink and renew our interpretations and, ultimately, get out of our mental ruts (nos ornières mentales).
In this blog post, I consider why academic work is important for the ECtHR, where academic arguments have impacted the Court’s reasoning, and where they might do so in the future. I outline the different stages in the procedure where academic work may be of value and consider how academics can bring their work to the attention of the Court.
Academic method and approaches at the ECtHR
I will explain why academic work is relevant to the work of the ECtHR by starting from my experience as an academic at the Court. In my personal work at the Court, from the beginning, I realised how fruitful the academic and scientific approach was from the point of view of the method for dealing with cases, for approaching them, dissecting them, analysing them, distinguishing the essential from the accessory. Applications come to us like an English garden, with a plethora of facts and arguments that often go in all directions, and we have to transform them to go along a French garden, cartesian, with well-marked paths and well-ordered planting. The analytical scientific method is invaluable in this exercise.
As for the substance, academics at the Court (there weren’t many of us in the Court and today, alas, they have all but disappeared) must not believe that they are always right; indeed, we are not always right. Thus, an attitude of questioning and modesty is essential with colleagues who for the most part come from judicial practice and who sometimes have a certain distrust of academics. When it comes to deliberations, academics are perhaps the least well prepared because deliberations are not a seminar but a decision-making forum. Academics develop a sense of doubt, whereas judges have to make a decision. Fortunately, separate opinions exist at the Court.
Routes to impact for academic work at the ECtHR
Where can academic work exert its expertise and influence? Where does it manifest itself? Through what channels? Most easily, of course, through third-party interventions. This is why the Court is now making public when a case is communicated to the government. In the Court judgment on climate change Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, for example, the highest number of third-party interventions I have ever seen were submitted by governments, groups and individuals. These third-party interventions serve to understand what is at stake and the different points of view. Judges at the ECtHR have to read them very carefully.
Despite the importance of third-party interventions for highlighting academic work which can be of use to the court, academic work and expertise are likely to manifest themselves throughout the whole progress of a case, from the first stages of the proceedings to the last line of a Grand Chamber judgment and even afterwards. Some of these stages are often invisible. I want to look at some of them:
A first important stage is the admissibility decision. For example, the case of Rantsev v. Cyprus and Russia (on trafficking in human beings) miraculously survived and escaped the guillotine of a single judge inadmissible decision committee, clearly because of the very strong doctrinal academic positions on this issue. A contrario, the Asmeta case where the single judge blindly declared the case inadmissible (this was an application on the ban on lawyers wearing headscarves in France, a new issue that the Court had never dealt with before). Academic work critiquing admissibility decisions is valuable for ensuring that important cases are not simply declared inadmissible, thus informing future practice of the Court.
Likewise, another important stage of the proceedings where academic work can be of value are decisions to relinquish jurisdiction to the Grand Chamber (Article 30 ECHR). These decisions are often the most significant in terms of doctrinal stakes. In this respect, it is undoubtedly regrettable that they are not accompanied by reasons that would make it easier to understand the development of the case law. Academic commentary can help to fill in the gaps and make sense of the decision to relinquish jurisdiction to the Grand Chamber. In addition, academics may argue that a particular case should be referred to the Grand Chamber under Article 43 ECHR.
More generally, academic work can also serve to systematize the law, including by highlighting separate opinions, whether dissenting or concurring. Such summaries of the law as it stands make it possible, at the outset of a case, to initiate a discussion, which is often very fruitful. The judge’s job is to hand down judgments, and once these have been handed down, they no longer belong to us. It is up to the commentators to analyse and interpret them using their own tools. Some judges, colleagues at the Court, sometimes criticise the fact that authors see in our judgments more than we intended. Personally, I find this is not only completely normal but extremely useful. Academic authors put our rulings into perspective, place them in a context, and identify their potential or limitations. They draw our attention to developments or divergences that we cannot always perceive with the same acuity when we are at the heart of a case or in the debate being deliberated. In this respect, Strasbourg Observers’ comments on its blog are a model of their kind. They combine seriousness and speed, which for us is essential if we are to make the most of the analyses.
What is more, academic expertise is indispensable in monitoring the execution/implementation of judgments. Academics may critique the failure to implement the ECtHR’s judgments and suggest solutions for addressing this failure.
Finally, it is not only strictly (doctrinal) legal academic work which is of use to the Court. When it comes to human rights, the judges’ approach is inevitably informed by philosophical, moral, social and political concerns and positions. Thus, for example, the question of whether the right to freedom of expression protects hate speech or speech that persecutes minorities necessarily requires, in a democratic society, reflection on the most fundamental questions of political morality. Similarly, Article 3 of the Convention, which prohibits torture and inhuman and degrading treatment, requires us to reflect on what is no longer tolerable in a democratic society. As the Court stated in Selmouni v. France, ‘the Convention is a “living instrument to be interpreted in the light of present-day conditions of life” (…), the Court considers that the increasing level of demand for the protection of human rights and fundamental freedoms implies, at the same time and inevitably, greater firmness in the assessment of violations of the fundamental values of democratic societies’. Of course, precedent and practice will play a role, but fundamentally, the judge will have to address a question of political morality. Academic work is indispensable here to inform the answers to these difficult questions.
ECtHR jurisprudence on asylum and immigration: issues in need of academic analysis
There are a number of questions in the ECtHR’s jurisprudence on asylum and immigration where doctrinal/scholarly opinions and positions would lead to a much-needed clarification of the law. I will highlight two of them here.
Today the most sensitive and difficult question which urgently requires scholarly in-depth analysis and reconstruction is the concept of jurisdiction (Article 1 ECHR). For asylum seekers and other migrants, the question under what circumstances obligations under the ECHR apply extraterritorially is of paramount importance. Currently, the ECtHR’s position is that states parties to the ECHR exercise extraterritorial jurisdiction only in exceptional circumstances (see Banković and Others v. Belgium; Al-Skeini v. The United Kingdom). A range of important academic work dealing with this issue already exists, but there is a continued need to engage with and criticise the ECtHR’s position.
The second important question is whether a statement commonly repeated throughout the Court’s immigration case law holds true: the claim that ‘Contracting States have the right as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens’ (see e.g. Paposhvili v Belgium, para 172). Academics need not take apparently well-established case law as gospel but can intelligently argue against such principles.
Evidence of academic impact at the ECtHR
From my memory, there are many instances of academic work having impacted the ECtHR’s reasoning. In my field of specialism, criminal law, several examples come to mind. Thus, I very clearly see the direct influence of academic work in Göktepe v. Belgium; Scoppola (no. 2) v. Italy; Taxquet v. Belgium, Capeau v. Belgium; and Zolothukhin v. Russia.
In addition, I see the influence of academic work in fields other than criminal law. In Demir and Baykara v. Turkey, for example, the ECtHR interpreted the Convention in the light of other international instruments and even soft law – a veritable legal revolution. It is clear that the judges who unanimously ruled in favour of such major upheavals were influenced by academic doctrinal positions on this issue.
Further, in Von Hannover (no. 2) v. Germany andAxel Springer AG v. Germany, I see evidence of original and scholarly work on conflicts between fundamental rights conducted under the direction of Eva Brems. There are many more examples which clearly establish the influence of academic work on the ECtHR’s reasoning.
Concluding remarks
(Legal) academic work is extremely relevant for the work of the ECtHR – in the area of immigration and asylum, and beyond. Academic work can influence the Court’s decisions and reasoning at different stages of the procedure and academics can bring their arguments to the attention of the Court through third-party interventions and blog posts.
There are many cases in which the ECtHR has clearly relied on academic work in its reasoning. At the same time, there are many issues as yet unresolved where academic work can have an impact in the future.
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