How may the ECtHR respond backlash, populism and challenges to the rule of law?

Prepared remarks by Professor Gentian Zyberi on the occasion of the seminar with President Spanó of the European Court of Human Rights (ECtHR). 

12.May 2022, the ECtHR President Róbert Spanó discussed how the ECtHR responds to challenges to the rule of law, in dialogue with scholars from the University of Oslo (UiO). The discussion took place in the Old Assembly Hall at UiO. 

Introduction

First, let me thank the organizers for inviting me. It is a pleasure to be a part of this seminar on such an important topic and to have the President of the Court, Judge Spano, provide us with his reflections on the matter.

We had the pleasure of having him in Oslo in November 2014 to deliver the Torkel Opsahl Memorial lecture, organized by the Norwegian Centre for Human Rights. In that event, seven and a half years ago, he spoke on the topic of “The European Court of Human Rights and National Courts: A Constructive Conversation or a Dialogue of Disrespect?”[1] I will return to this at the end.

In my limited time, I will first say a few words on backlash, populism, and challenges to the rule of law, connecting that debate to the interaction between the Court and Albania, and provide a couple of anecdotes of a more general nature. Then, I will discuss briefly whether the Court is sufficiently equipped to respond to these challenges and whether they spell too much trouble, before providing some concluding remarks.

What about backlash, populism, and challenges to the rule of law?

Let me start this intervention on a personal note and connect the importance of the Court to legal developments in Albania, my home country. The importance of the ECHR system and the jurisprudence of the Court for Albanian domestic legal practice cannot be overemphasized, as the ECHR standards are vested in the Albanian Constitution, which states in Article 17(2) that limitations to human rights “may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.” Let me exemplify that importance through the abrogation of the death penalty by our Constitutional Court in 1999,[2] based on the ECHR and the Council of Europe (CoE) membership, before Albania ratifying the relevant ECHR protocols, No 6 and No 13 (Protocol No 6 of the ECHR concerning the Prohibition of Death Penalty during peacetime; Protocol No 13 concerning the Abolition of the Death Penalty in all circumstances).[3]  Although not among the most “problematic” countries, Albania has challenges in ensuring compliance with the ECHR and the Court’s judgments and addressing certain structural domestic legal problems. One of them concerns the restitution of property seized during the communist regime between 1945 to 1990. Some time ago, news reports surfaced of efforts to try to influence the Court into not issuing certain judgments, due to the budgetary constraints the Albanian government would face, if it were to compensate individuals for property restitution claims made against the country.

Let me move on to a more general level, by using a couple of anecdotes providing examples of approaches of a populist nature, one coming from the government and media of an established democracy, and the other from fellow scholars. The first anecdote concerns the governmental response and the portrayal in a British tabloid of the Judges of the Court in the context of extradition procedures of Abu Qatada, raising concerns as to how could these judges, most of whom without any judicial experience, interfere with what the British authorities were to do in this high profile case.The second example concerns casual remarks by academic colleagues in a conference, many years ago, as to how could certain Eastern European judges render judgments on cases brought against Western countries, given the poor human rights record of their own countries.

These anecdotal examples, and there are many, show that we have a long way to go in terms of properly understanding the functioning of the Court and addressing any shortcomings the Court might have. And, this even for what we would consider positively inclined and well-informed audiences.

Is the Court sufficiently equipped to respond to these challenges?

Moving on to the second issue, on whether the Court is sufficiently equipped to respond to these challenges? Let me first note that with regard to the available institutional mechanisms, the ECHR system has been significantly modified and currently provides several tools that the Court can use to address various challenges.

Among others, Judge Spano spoke about challenges with regard to the war in Ukraine. I am afraid that the Court is not necessarily well equipped to deal with ongoing situations of armed conflict, although it is trying to do the best it can. That acknowledgement is valid for the current situation in Ukraine. And, let me add here that the decision to expel Russia from the Council of Europe is not helpful, neither for the situation in Ukraine, nor for the protection of human rights in Russia.

Under this heading, I want to address summarily three issues, (1) engagement of the Court with the highest national courts, (2) effectiveness, and (3) engagement with other human rights mechanisms.

First, with regard to the engagement of the Court with the highest national courts, Protocol 16 has made official an important and necessary interaction that has taken place and which continues also in other forums.[5] It would be great if more countries than the current 16 State parties opened up this possibility to their highest courts, as this would go a long way towards establishing the European Court as a veritable European human rights constitutional court.

Second, with regard to the effectiveness of the Court, Protocols 14, 14bis, and especially 15 provide several tools that tackle what have been continuous concerns.[6] These treaty modifications enable the Court to deal with a high (and growing) workload in a more efficient manner, while concerns would still remain with regard to issues concerning “access to justice”.

Third, constructive engagement with other international and regional human rights mechanisms could eventually assist the Court in enhancing its legitimacy and legal position. While the Court does not see eye-to-eye on specific human rights issues with other human rights mechanisms, including among others the two regional courts and the UN Human Rights Committee, there is a common position on most human rights issues, and, relevant references to practice from these mechanisms could potentially boost its own legal position and interpretation.

Concluding remarks

Let me come to my concluding remarks on how the Court may respond.

First, I am afraid, these controversies will continue and the Court has to grow a thick skin. Whether a decision of the Court represents an instance of judicial restraint or of judicial activism is ultimately in the eyes of the beholder.

Second, the Court has to continue its engagement and regular communications with the highest national courts, with the Council of Europe mechanisms that support its work (Committee of Ministers; Parliamentary Assembly; CoE Secretary-General; Commissioner for Human Rights), with parliamentarians, and with civil society and national human rights institutions. While the Court speaks through its decisions (judgments and advisory opinions), this engagement and communication channels and outreach will allow it to continue to make an impact in the protection of human rights in the member States, and more generally in the world through the cross-fertilization effects of its jurisprudence.

Third, let me refer to the factsheets, case-law guides, and other explanatory and outreach information made available by the Court (Registry), including through its social media. This documentation is very important for the role of the Court in educating legal professionals, law students, and other stakeholders on its work.

Finally, the Court and those served by the Court have to accept its limitations, legal and otherwise, while trying to further perfect the ECHR system. That process of institutional reform, besides its legal components, has important political aspects that are beyond the reach of the Court.

To finish with Judge Spano’s 2014 own words concerning democratic debates on fundamental issues of human rights protection, “democratic debates on these issues must, to be useful and productive, be based on the correct representation of the underlying facts and realities.”[7] This is not easy in a post-truth world. Having such debates has not been easy in the past and is not going to be easy in the future. However, in my view, the Court is better equipped to deal with these challenges and can continue to play an important role in the protection of human rights within the Council of Europe and perhaps beyond.

 

Thank you!

 

[1] Robert Spano, “The European Court of Human Rights And National Courts: A Constructive Conversation or A Dialogue of Disrespect?”, The Torkel Opsahl Memorial Lecture 2014, 28 November 2014

[2] Constitutional Court, Judgment No 65/99, 10 December 1999.

[3] Protocol No 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, ETS No 114, entered into force on 1 March 1985 (on 1 October 2000 for Albania); Protocol No 13 concerning the Abolition of the Death Penalty in all circumstances, ETS No. 187, entered into force on 1 July 2003 (on 1 June 2007 for Albania).

[5] Protocol No. 16 (entered into force 1 August 2018) allows the highest courts and tribunals of a High Contracting Party, as specified by the latter, to request the European Court of Human Rights to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. It has been ratified by 16 States. More information available at CoE's web page. 

[6] To maintain the effectiveness of the European Court of Human Rights, this Protocol makes the following changes to the Convention:

  • Adding a reference to the principle of subsidiarity and the doctrine of the margin of appreciation to the Preamble of the Convention;
  • Shortening from six to four months the time limit within which an application must be made to the Court;
  • Amending the ‘significant disadvantage’ admissibility criterion to remove the second safeguard preventing rejection of an application that has not been duly considered by a domestic tribunal;
  • Removing the right of the parties to a case to object to relinquishment of jurisdiction over it by a Chamber in favour of the Grand Chamber;
  • Replacing the upper age limit for judges by a requirement that candidates for the post of judge be less than 65 years of age at the date by which the list of candidates has been requested by the Parliamentary Assembly. More information at CoE'w web page

[7] Spano (n 1), para. 39.

By Gentian Zyberi
Published June 8, 2022 9:11 AM - Last modified June 8, 2022 9:12 AM
Add comment

Log in to comment

Not UiO or Feide account?
Create a WebID account to comment