Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

rights obligations does not depend on whether they had, prior to the treaty, a duty to join such a treaty.81

To be sure, it is not the case that states have a duty to respect human rights only if they have agreed by treaty to do so. Arguably, a core list of fundamental rights, including – but not limited to – jus cogens norms, are binding on all states, whether or not they have signed up to a human rights treaty. Yet it does not follow from the fact that states have non- consent-based obligations that they also have duties to abide by the judgment of particular institutions on what these obligations are. For example, the fact that China has human rights obligations, whether or not it has ratified human rights treaties, does not mean that it is bound by the views of the International Convention on Civil and Political Rights (ICCPR) Human Rights Committee or the judgment of the ECtHR on what these obligations are. This is one part where the commitment and subsequent practice of states makes a difference: in virtue of setting up or joining a treaty with a binding enforcement mechanism, like the ECHR, and of using this mechanism in their institutional practices, states acquire an obligation to respect the joint scheme and judgment of supranational institutions like the Court. This obligation is partly based on the morality of agreements and partly on the fact that past institutional practice, including the practice of international institutions, changes what reasons states have.82 The force of this obligation is not instrumental, that is, it does not depend on whether following the Court’s judgments is beneficial for states or makes it more likely to comply with the reasons that applied to states prior to joining. In other words, treaty-based obligations are not morally neutral or ‘formal’: they are deontic, grounded on principles of political morality that pertain to agreements and collective action; they

81Admittedly, this account says very little about what reasons states have in the first place for agreeing to create supranational human rights organisations and to be bound by them. For what matters on this account is the existence of state agreement and subsequent international practice, not any prior reasons for agreeing and engaging in that

practice. And states can be motivated to set up or join international human rights organisations by a variety of considerations, without there being an actual reason (let alone a duty) for them to do so. On the view defended here, the Court’s legitimacy does not depend on there being a reason for states to set up international human rights institutions.

82For the idea that past political practice changes what constitutes rightful and wrongful ways for government to act, see N. Stavropoulos, ‘Why Principles?’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1023758); and M. Greenberg, ‘The Standard Picture and its Discontents’, available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1103569.

bind states not because of the consequential effects of the agreement, but in virtue of the fact that states have made a mutual commitment to respect the judgments of the institution that the treaty established, and followed through on that commitment in their institutional practices, generating requirements of fairness and respecting mutual expectations. The mutual commitment to set up a joint mechanism for the protection of human rights in Europe is clear in the text of the Convention, particularly article 46 paragraph 1 ECHR:

The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

Moreover, there is no doubt that the ECHR has had a profound effect on the institutional practice of states at both international and domestic level: not only do states comply with the judgments of the Court by awarding compensation to the victims, but they also routinely alter their national policies to make them consistent with the Court’s case law.

Of course, treaty-based duties, just like promissory duties, are not absolute; they provide states with a defeasible reason to abide by the Court’s judgment. But this reason is enough to ground the pro tanto legitimacy of the Court. Other things being equal, states have a duty to comply with the Court’s judgments, regardless of whether they are good or bad. A state must adduce some pretty weighty considerations for not complying with the Court’s judgment. Mere disagreement with the judgment would be insufficient to defeat the treaty-based obligation.

Now, it could be objected that there must be limits to how much of the Court’s interpretive authority is justified by states’ treaty-based agreement. Did states really agree to give the Court carte-blanche on how to interpret the ECHR? Did they consent to the Court using the evolutive interpretation to inflate the scope of ECHR rights and increase the number of ECHR obligations that states have? If the Court’s jurisprudence, inspired by evolutive interpretation, has exceeded the bounds of the treaty-based authority, then perhaps it makes sense to challenge its legitimacy and look for alternative bases for its authority, such as expertise or coordination solving.

The above objection raises an important question about how we are to understand states’ agreement to create the ECHR, set up the ECtHR, and make its judgments binding. There is no doubt that most old contracting states would not have anticipated the expansive interpretation of the Convention rights by the Court and the burden that the Court’s jurisprudence would impose on state sovereignty. On the other hand,

however, there is equally no doubt that the ECHR contracting states wanted to create not only legally binding obligations, but also legally binding determinations of when these obligations have been breached. Unlike the ICCPR Human Rights Committee or other international ‘soft-law’ mechanism, the reform of Protocol 11 ECHR clearly established Strasbourg as a court whose judgments are legally binding. They did so, moreover, with a view to promoting specific aims listed stated in the ECHR preamble: first, to ‘achieve greater unity’ between them and second, ‘to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’ (my emphasis). Greater political unity and collective enforcement of fundamental rights were the abstract background aims of the initial drafting of the ECHR and they continue to be so, until states reform or withdraw from it.

So herein lies the Court’s legitimacy to use evolutive interpretation and to develop the meaning of the Convention rights, often against states’ expectations or preferences: first, states gave the Court the legal mandate to provide institutional remedies for the violation of people’s human rights, whatever these moral rights happen to be. The Convention is meant to protect whatever human rights people in fact have, and not what human rights domestic authorities or public opinion think people have. As a result, a better understanding of the nature of human rights and the principles that justify them will require an evolving interpretation of the Convention. Second, states also promised to abide by the Court’s determinations of whether a human right has been violated. They did not, as they could have done, take the Court’s judgments to be mere recommendations or soft law. And third, there has been a long institutional practice of contracting states respecting and implementing the scheme of rights that the Court, through its case law, has produced. The existence of such practice generates obligations of fairness amongst contracting states to respect this scheme, even if it is imperfect from the point of view of ideal morality. As we saw in previous sections, the scheme of rights that the Court has produced does not condition the existence of the right that the applicant claims to have under the ECHR on whether there is state consensus to that effect.

However, are there limits to how far the Court can go in seeking to discover the true nature and content of people’s human rights? Of course there are. But these limits have nothing to do with the Court’s expertise or with the quality of this or that judgment. Nor do they have anything to do with states’ consensus on what is and what is not a human rights violation.

The most important limit relates to the character of the Court’s reasoning. The Court has two fundamental obligations in this respect. First, to reason in good faith, seeking to discover the principles that underlie and justify human rights and to apply them to the case at hand. And second, it has a duty, as any court, to strive to justify its decisions according to a scheme of principles that represents an intelligible and coherent vision of justice.83 As Ronald Dworkin argues, courts cannot rely on one principle to decide a case and then offend that very same principle to decide the next case.84 And it is here that the use of evolutive interpretation becomes essential to the Court’s legitimacy: the Court should seek to construct a coherent body of principles in its case law by constantly adjusting, modifying and reshaping the scope and meaning of the Convention rights in the light of the body of principles that it uses. It is this need for coherence that the method of evolutive interpretation serves: other things being equal, the Court cannot deny protection in a newly developed problem (say, domestic workers, or trafficking), if its existing principles are applicable. By ‘expanding’ the scope of the Convention rights, the Court simply applies existing law. Any so-called ‘expansive’ interpretation of a Convention right is legitimate so long as it is a good-faith application of a principle that the Court has consistently applied and recognised in its case law.

But of course, the duty to reason in good faith and to strive for consistency of principle over time is not the only consideration bearing on the Court. Like any moral duty, it may be outweighed by exceptional cases in which there is a threat of devastating consequences, justifying the Court granting a margin of appreciation, in violation of its principles. But these cases are few and far between, relating to a clear and present danger of drastic repercussions within the respondent state, following an adverse ruling.85 The mere fact that the respondent state (or a large number of contracting states) will be frustrated by an adverse ruling and that its politicians will make noises, usually for party-political gains, about the legitimacy of the Court, is not a good reason for the Court to compromise its principles.

83 This is what Dworkin calls ‘integrity’ in R. Dworkin, Law’s Empire (Oxford: Hart Publishing, 1986) chapter 6. See also S. Hershovitz, ‘Integrity and Stare Decisis’, in S. Hershovitz (ed.), Exploring Law’s Empire (Oxford University Press, 2006) 103–18.

84R. Dworkin, Justice in Robes (Cambridge, MA: Harvard University Press, 2006), at 53.

85Such a case arises, in my view, when there is a clear and present danger that a contracting state with a poor human rights record will withdraw from the ECHR because of the ruling of a violation. See the discussion in Letsas, ‘A Theory of Interpretation’, chapter 6.

In sum, the advantage of the commitment-based argument for the Court’s legitimacy is that, unlike the authority-based argument, it explains why the Court has legitimacy over all 47 contracting states. All 47 states undertook a commitment to respect a joint scheme of determining and enforcing human rights obligations and all 47 states have adjusted their institutional practice to make it consistent with the scheme that the Court, through its case law, has developed. The commitment-based argument also explains why its legitimacy is not under threat each time it makes a poor decision or each time a respondent state thinks that the Court went too far. Commitment-based legitimacy can be lost if the Court’s reasoning lacks certain features: first, if it becomes a bad faith attempt to exceed the Court’s legal mandate and to restrict the sovereignty of contracting states. And second, if its reasoning lacks principled consistency, deciding cases arbitrarily. The method of evolutive interpretation, understood as the moral reading of the Convention, is essential if the Court’s case law is to be principled and, consequently, if the Court is to preserve its legitimacy. As we have seen in sections 2 and 3, the Court’s case law over time has acquired greater depth and consistency, through relying on evolutive interpretation and on the search for common values in international law.

6. Conclusion

It is too early to tell whether the Court’s interpretive ethic, crystallised after the reform of Protocol 11, will survive the recent attacks on its legitimacy. The current political climate and the continuing economic crisis put additional pressure on supranational institutions, including the Court, to show greater deference to national authorities. The Court treated the ECHR as a living instrument, nourishing it to become a large and fairly consistent body of rights-based principles for the whole of Europe. The Court’s interpretive ethic is a unique asset for Europe and the best example of a successful international system for protecting human rights. If the Court continues to treat the Convention as a living instrument, it will not lose its legitimacy; it will lose it if it does not.

the european court’s developing approach to remedies 143

met with universal approval, as evidenced for example, by the furore in the UK over prisoner voting rights.

This chapter traces and analyses these developments, and seeks to ask how and why the Court has altered its position so profoundly in relation to non-monetary remedies. It discusses the Court’s increasingly prescriptive approach to redress as regards property cases, unfair trials, unlawful detention and in situations where there have been large-scale systemic Convention breaches. It also analyses the suitability of redress awarded in cases concerning egregious violations of the Convention. The chapter considers whether such changes are in compliance, or in conflict, with the principle of subsidiarity, and it also makes some suggestions as to how the Court should develop its position on redress, post-Interlaken.

2.The legal basis for redress

The sources of the Court’s remedial powers are both the binding nature of its judgments (under article 46(1) of the European Convention on Human Rights (the Convention, or the ECHR))2 and its capability (exercised as a discretion) to award ‘just satisfaction’ to the victims of human rights violations (under article 41).3 In view of its legally binding nature, it is trite Strasbourg law that the effect of a judgment in which the Court finds a violation of the ECHR is to impose a legal obligation on the respondent state both to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (‘restitutio in integrum’). Therefore, if restitutio in integrum is possible, it is for the state to carry it out (not the Court).4 If, however, restitutio in integrum is in practice impossible, the respondent state is free to choose the means for complying with a judgment,5 provided that those means are compatible with the conclusions

2Article 46(1) of the ECHR provides: ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’

3Article 41 of the ECHR provides: ‘If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.’

4See, e.g., ECtHR, Iatridis v. Greece (Appl. No. 31107/96), Judgment (Grand Chamber), 19 October 2000, Reports 1999-II, paras. 32–3.

5See, e.g., ECtHR, Selçuk and Asker v. Turkey (Appl. Nos. 23184 and 23185/94), Judgment (Chamber), 24 April 1998, Reports 1998-II, para. 125.

set out in the Court’s judgment.6 This ‘room to manoeuvre’ has been said to reflect the discretion given to states as to how they honour their fundamental obligation under article 1 of the Convention to secure to everyone the rights and freedoms guaranteed by the Convention.7

The obligation on the state to do more than simply pay damages to an applicant has been explicitly and repeatedly reiterated by the Court. For example:

A judgment in which the Court finds a breach imposes on the respondent state a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects.8

The Court has also frequently emphasised that the purpose of awarding just satisfaction is ‘to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied’.9 The jurisprudence of the Court has established that even a partial failure to execute a judgment will engage the state’s international responsibility.10 Furthermore, placing reliance on the law of state responsibility, the Court has held that restitution will be required unless there is material impossibility,11 or it would involve a disproportionate burden:

… a State responsible for a wrongful act is under an obligation to make restitution, consisting in restoring the situation which existed before the wrongful act was committed, provided that restitution is not ‘materially impossible’ and ‘does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation’ (article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts…).12

6See, e.g., ECtHR, Scozzari and Giunta v. Italy (Appl. Nos. 39221 and 41963/98), Judgment (Grand Chamber), 13 July 2000, Reports 2000-VIII.

7See, e.g., Iatridis v. Greece, para. 33.

10ECtHR, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2) (Appl. No. 32772/ 02), Judgment (Grand Chamber), 30 June 2009, Reports 2009, para. 85.

11Loucaides has been critical of the Court’s past failure adequately to assess the question of whether restitution was impossible, when this point has been argued by respondent states. See L. Loucaides, ‘Reparation for Violations of Human Rights under the European Convention and Restitutio in Integrum’, (2008) European Human Rights Law Review, 182–92, at 185–6 (hereinafter Loucaides, ‘Reparations’).

12Verein gegen Tierfabriken, para. 86.

the european court’s developing approach to remedies 145

In spite of these explicit Convention obligations to provide reparations, and indeed, to ensure restitutio in integrum, the Court’s traditional approach to the issue of redress has been cautious and conservative – and certainly mindful of the pitfalls of being perceived to tread on state sovereignty. Such a stance is not unique within international human rights systems, reflecting, it has been suggested, the innovative and developing nature of international human rights procedures, a lack of confidence both about the scope of powers to provide remedies and about states’ willingness to comply, an emphasis on cessation and nonrepetition of the violation in question, and a lack of national judicial experience amongst international tribunal members.13 The Court’s judgments have therefore been ‘essentially declaratory’.14 Thus, in a case in which the applicant has successfully established that the Convention has been violated, the Court’s usual approach has been to issue a declaration to the effect that the Convention has been violated (with detailed reasoning) and to exercise its discretion whether to award compensation (in the form of pecuniary and/or non-pecuniary damages) and legal costs. This predominant approach is also, as Judge Costa has noted, a reflection of the subsidiarity principle:

The distinction between the choice of means and the obligation to achieve a specific result thus seeks to reconcile the principle of subsidiarity with the collective guarantee of the rights and freedoms protected by the Convention.15

Accordingly, as regards the state’s wider duty to provide reparation, the Court has been very reluctant to issue ‘consequential orders or declaratory statements’,16 such as directing a state to instigate criminal or disciplinary proceedings,17 ordering a state to allow an excluded applicant to return to the state’s territory,18 or to give undertakings as to future

13D. Shelton‚ Remedies in International Human Rights Law, 2nd edn (Oxford University Press, 2005) 1–2 (hereinafter Shelton, Remedies).

14See, e.g., ECtHR, Marckx v. Belgium (Appl. No. 6833/74), Judgment (Plenary), 13 June 1979, Series A, No. 31, para. 58; ECtHR, Assanidze v. Georgia (Appl. No. 71503/01), Judgment (Grand Chamber), 8 April 2004, Reports 2004-II, para. 202.

15Assanidze v. Georgia, ibid., Partly Concurring Opinion of Judge Costa, para. 4.

16See, e.g., Selçuk and Asker v. Turkey, para. 125.

17See, e.g., ECtHR, Ireland v. United Kingdom (Appl. No. 5310/71), Judgment 18 January 1978, Series A, No. 25, para. 187.

18See, e.g., ECtHR, Mehemi v. France (Appl. No. 25017/94), Judgment (Chamber), 26 September 1997, Reports 1997-VI, paras. 42–3.

conduct.19 It has not quashed the decisions of the domestic authorities or courts, reasoning that it could not speculate what the outcome of the domestic proceedings would have been had there been no Convention violation.20 Nor has the Court’s traditional approach been to strike down (or require a state to alter) its legislation. For example, in its 2002 judgment in Lundevall v. Sweden,21 the Court explicitly noted that ‘the Convention does not empower it to order a State to alter its legislation’. In 2007, the Grand Chamber found in Dickson v. United Kingdom22 that a refusal to allow the applicant prisoner access to artificial insemination facilities breached article 8 of the Convention, but a request that the government be directed to allow such access was denied, with the Court emphasising the primacy of its function to rule on questions of compatibility with the Convention.

As a consequence of the Court’s highly respectful attitude towards state sovereignty, and also because the award of damages and legal costs is in the Court’s discretion, it has frequently been the practice of the Court to conclude that the finding of a violation of the Convention constitutes sufficient ‘just satisfaction’, and therefore even to decline to award any damages at all. This practice has not infrequently been the subject of judicial dissent.23 When Joseph Aquilina, a teenager in Malta, was arrested and was first taken before a magistrate and charged with defiling his girlfriend in a public place, the Grand Chamber of the Court found that the fact that the magistrate had had no power to order his release violated his rights under article 5(3) of the Convention. However, the majority of the Court declined to award him any non-pecuniary damages, adopting its formula of a finding of a violation constituting sufficient just satisfaction.24 This was met with stinging criticism by

19See, e.g., ECtHR, Campbell and Cosans v. United Kingdom (Article 50) (Appl. Nos. 7511 and 7743/76), Judgment (Chamber), 23 March 1983, Series A, No. 60, para. 16.

20See, e.g., ECtHR, Schmautzer v. Austria (Appl. No. 15523/89), Court (Chamber), 23 October 1995, Series A, No. 328-A, paras. 42–4; ECtHR, Lyons and Others v. UK (Appl. No. 15227/03), Admissibility Decision, 8 July 2003, Reports 2003-IX.

21See, e.g., ECtHR, Lundevall v. Sweden (Appl. No. 38629/97), Judgment (Fourth Section), 12 November 2002, not reported, para. 44.

22ECtHR, Dickson v. United Kingdom (Appl. No. 44362/04), Judgment (Grand Chamber), 4 December 2007, Reports 2007-V.

23See, e.g., the Separate Opinions of Judges Ganshof van der Meersch and Evrigenis, and of Judge Bindschedler-Robert in ECtHR, Engel and Others v. Netherlands (Article 50) (Appl. Nos. 5100, 5101 and 5102/71; 5354 and 5370/72), Judgment (Plenary), 23 November 1976, Series A, No. 22.

24Aquilina v. Malta, para. 59.