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

given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen’.

Some judges, including Lord Brown in Al-Skeini, had reversed the order of words, attempting to invert the approach, by moving the ‘certainly’ in front of the ‘more’, and away from the ‘no less’, emphasising the ‘no more’.343 Al-Skeini was, predictably, overturned when it reached the Court.344 That reversal of words also inverts the subsidiarity principle of the Convention and the HRA. The Court would not remain a supervisory mechanism, subsidiary to national systems safeguarding human rights. The national systems would become subsidiary. National courts and other authorities should wait for the Court to interpret the Convention. In yet other versions, they could wait until there was a judgment from the Court’s Grand Chamber, or even for a judgment that the national judge would hold to be sufficiently clear.

In Rabone, the Supreme Court took the responsibility of interpreting the Convention. Liability under article 2 would not have been possible if the Supreme Court had relied on the ‘certainly no more’ approach. The lead judgment of Lord Dyson, and the concurring judgments of Lady Hale and Lord Mance, show how untenable these inverted approaches had become. This is brought into even sharper relief by the Court’s judgment in Reynolds v. The United Kingdom, with similar facts and the same conclusions. The Court in Reynolds could build upon and confirm Rabone, but had the Supreme Court gone the other way and refused liability, the interpretation of article 2 in such an alternative judgment would have been overturned by Reynolds.

Lady Hale’s lament is prefaced by her explanation for why ‘we are here’. It is ‘because the ordinary law of tort does not recognise or compensate the anguish suffered by parents who are deprived of the life of their adult child’. In his judgment, Lord Brown adds to that explanation that if a domestic court is ‘content (perhaps even ready and willing) to decide a Convention challenge against a public authority and believes such a conclusion to flow naturally from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further), then in my judgment it should take that further step. And that, indeed, is to my mind precisely the position in this very case.’

343R (Al-Skeini) v. Secretary of State for Defence [2008] AC 153, para. 106.

344ECtHR, Al-Skeini v. United Kingdom (Appl. No. 55721/07), Judgment (Grand Chamber), 11 July 2011, Reports 2011.

The hospitals in both instances had admitted to negligence, but the ordinary law of tort left the parents of Melanie and David without any cause of action. Mr. Rabone had accepted an amount (for funeral expenses and the balance as general damages for Melanie’s pain and suffering during the two-month period before she died) in settlement of the negligence claim, which had been based on the Law Reform (Miscellaneous Provisions) Act 1934. Mr. and Mrs. Rabone had no cause of action, because section 1A of the Fatal Accidents Act 1976 provides that a claim by parents for damages for bereavement for the loss of a child (currently fixed by section 1A(3) at £11,800) shall only be for the benefit of the parents of a minor, and Melanie had been over 18. Having established breach of article 2, the Supreme Court ruled that this did not constitute adequate redress under article 13 or precluded the claim in any other way (at [63]). In establishing breach of article 2, the Supreme Court had to go ‘rather further than the evolving jurisprudence of the European Court of Human Rights has yet clearly established to be required’, as Lord Brown states in his Concurring Judgment.345

A positive duty to protect life in certain circumstances deriving from article 2 was articulated in Osman.346 There is a general duty on the state ‘to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life’. There is also an ‘operational duty’. The failure of the police to protect the Osman family from threats and harassment from a third party culminated in the murder of Mr. Osman and the wounding of his son. The Court said in Osman that in ‘well-defined circumstances’ the state should take ‘appropriate steps’ to safeguard the lives of those within its jurisdiction, including a positive obligation to take ‘preventative operational measures’ to protect an individual whose life is at risk from the criminal acts of another.347

The Court had identified other circumstances in which the operational duty may apply. Lord Dyson explained that the Strasbourg jurisprudence showed that there is such a duty to protect persons from a real and immediate risk of suicide, at least, where they are under the control of the state. This duty would include a detained patient, and there was no suggestion that the operational obligation to prevent suicide is limited

345Rabone, para. 111.

346ECtHR, Osman v. United Kingdom (Appl. No. 23452/94), Judgment (Grand Chamber), 28 October 1998, Reports 1998-VIII.

347Ibid., at para. 115.

to prisoners and detainees. But in the generality of cases involving medical negligence, there is no operational duty under article 2.

Lord Dyson concluded that there was no doubt that there was an operational duty in the case to take reasonable steps to protect Melanie Rabone from the real and immediate risk of suicide. Melanie had been admitted to hospital precisely because of the risk that she would take her own life. Voluntary patients at risk from suicide would often take medication which would compromise the ability to make an informed decision, were likely to be detained if they attempted to leave, and may have consented to hospital treatment to avoid detention. It was not meaningful to treat Melanie any differently from detained or involuntary patients. The operational duty had been broken, and the parents were victims of this violation. Lord Dyson, Lady Hale and Lord Mance, in clear and carefully reasoned judgments, contributed to the development of the tort remedies in a way the case required. In doing so, they also clarified the relationship between national courts and the Strasbourg Court in a judgment which will no doubt stand as an authority for a long time.

4. Conclusion

The implementation of the ECHR into national law has been led by the work of national judges; as Alec Stone Sweet and Helen Keller have said, ‘courts have taken the lead in incorporating the Convention’.348 This chapter has brought out not only the relationship between on the one hand a national court, and the Strasbourg Court on the other. Instead, the point has been to look at the relationship between national courts as they relate to the Strasbourg Court. Such an approach is also in keeping with the reflection by the President of the Federal Constitutional Court, Andreas Voßkuhle, that the effects of internationalisation and Europeanisation have given the vocation of comparative constitutional law ‘eine neue quantitative und qualitative Dimension’.349

With respect to the evolution of rights under the Convention, it is becoming clear that European courts not only accept that they must

348Stone Sweet, ‘Assessing the Impact’, at 687.

349A. Voßkuhle, ‘Europa als Gegenstand wissenschaftlicher Reflexion – eine thematische Annäherung in 12 Thesen’, C. Fanzius et al. (eds.), Strukturfragen der Europäischen Union 37–45, at 44–5. See also J.L. Halperin, Les mondialisations du droit (Paris: Dalloz, 2009). These new dimensions are plain from the approach taken in B. Strin, Vers un droit public européenne (Paris: Monchrestion, 2012).

follow the development of the ECHR as interpreted by the Strasbourg Court; they also take a lead in developing the rights. As we have seen, Belgian, French, Italian, Norwegian and UK rights have gone far in this regard. This is very strong testimony to how far many national courts have gone in the implementation. If one is effectively more Strasbourgeois than Strasbourg, interpreting the Convention as having higher standards than the Strasbourg Court has said, then that must be the sign of successful domestication and implementation of Convention rights. This happens in different ways, the Belgian Constitutional Court conceiving of what it is doing as an application of article 53, the Czech Constitutional Court seeing the matter as one of ‘teleological interpretation’, both of the Czech Charter and of Convention rights. As the Italian jurisprudence shows, Italian judges are moving in the direction of giving the Convention constitutional value and have also gone beyond the interpretations of Strasbourg in the context of article 6. Such locks in Italian law as there have been, structural or interpretative, are being done away with. In Russia, the judges have gone far in implementing the ECHR, though not in any case as far, for example, as the Belgian or French judges. The picture with respect to proportionality gives the same impression. The UK, German, French, Czech and Russian judges have gone very far in implementing the proportionality test into national law. Such differences as persist are largely functions of the respective traits of the rightsprotection traditions in the different jurisdictions. The margin of appreciation, though one of the defining features of the scheme of the ECHR, does not have any application nationally. In the UK it has, however, been used in order to develop rights. This leads us to our concluding point.

The Strasbourg Court held in 1998 in its decision in Osman v. United Kingdom350 that English law on tort liability for the police was not in conformity with the Convention rights. The Court considered that English law provided an immunity against liability for police negligence in operational decisions. Osman provoked a strongly critical reaction from, among others, two House of Lords justices, Lords Browne-Wilkinson and Hoffmann.351 A.W. Brian Simpson analysed the British reception of

350Osman v. United Kingdom.

351See generally, A.W.B. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press, 2001), at 7–8. See for criticism of the decision, Barrett v. Enfield LBC [2001] 2 AC 550 (Lord BrowneWilkinson); Lord Hoffmann, ‘Human Rights and the House of Lords’, Modern Law Review 62 (1999) 159–66.

The Strasbourg court is in the unenviable position of having to decide human rights law across over 45 countries, ranging from mature free societies to the not so free. It is important that the court ensures that there is consistency across all countries. However, it is sometimes hard for one country, with its different standards and conditions, to accept a decision which is plainly right for another country. We may think that it is inappropriate that Strasbourg pokes its nose into the votes for prisoners issue on the basis that it should be left to our Parliament to decide. However, if Strasbourg said votes for criminals was a matter for national legislatures, it may be that a dictator might see this as a green light to depriving his enemies of the vote by trumping up charges to bring against them. It may be thought to be a small price to pay for a civilised Europe that we sometimes have to adapt our laws a little.356

356Lord Neuberger MR, ‘Who are the Masters now? Second Lord Alexander of Weedon Lecture’, www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon- lecture-110406.pdf.

Court. At the same time, and for more than 20 years, the PACE has had the ambition to play a role in the implementation of some of the judgments of the Court. The PACE is also the main organ responsible for the election of judges and the budget of the Council of Europe. Consequently, as the Court now has the ambition to go beyond its ‘jus dicere’ function (stricto sensu), the relationship with the PACE and the CoM have to be seen in a different light. What is also noticeable is that the relationships of the Court with the Assembly on the one hand, and with the CoM on the other hand, have always been thought about differently. While there seems to have been a great distrust towards the PACE by the Court, the CoM has benefited from a privileged relationship with the Court.

The topic is therefore fundamentally linked to the role the Court wants to play in Europe. Indeed, there has always been a clash between judges, politicians and scholars, as some want the Court to limit itself to the role it played until the 1990s, while others would like to pave the way for a constitutional Court.

1.The election of judges to the ECtHR

‘The election of judges is one of the few powers that the Parliamentary Assembly enjoys and this role is therefore jealously guarded.’1 Indeed, ‘even in the most open and democratic societies, judges are usually chosen by an overtly political process, often involving appointment by an executive, then confirmation by a legislative body.’2 The judges of the ECtHR, who ‘shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence’ (article 21, para. 1), ‘shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party’ (article 22).

The CoM has not officially been involved in this process. Even if it was envisaged in 1949 that judges be elected by a single or an absolute

1J. Limbach et al., Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights (Interights, 2003), at 23 (hereinafter Limbach et al., Judicial Independence). A. Coomber, ‘Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights’, European Human Rights Law Review 5 (2003) 486–500, at 496 (hereinafter Coomber, ‘Judicial Independence’).

2D. Terris et al. (eds.), The International Judge: An Introduction to the Men and Women who Decide the World’s Cases (Oxford University Press, International Courts and Tribunal Series, 2007), at 148.

majority of votes in the Assembly and in the CoM, each body voting independently,3 a practice has emerged where the list is first controlled by the Directorate General for Human Rights4 and is then transmitted to the CoM, which sends it unchanged to the PACE.5 The role of the CoM would be eventually to reject unacceptable lists, but in practice this has not been the case.6 An ad hoc group of the CoM engages in an ‘informal exchange of views on such candidates before the lists are formally transmitted to the CoM for transmission to the Parliamentary Assembly’.7 According to this mechanism established in 1997, ‘it is understood that the results of this exchange of views would neither bind governments, who would retain the right to present candidates of their choosing, nor interfere with the PACE’s function of electing judges from the lists provided’.8

We will see that the role of the Panel Experts set up in January 2011 is similar to the one formerly exercised by the CoM.

As was stated by the PACE itself: ‘7. The authority of the Court is contingent on the stature of judges and the quality and coherence of the Court’s case law.’9 The crux of the matter is also linked to the fact

3Historically, ‘the intention was that both the Parliamentary Assembly and the Committee of Ministers would participate in the election’, see J. Hedigan, ‘The Election of Judges to the European Court of Human Rights’, in M. G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International Law: Liber Amicorum Lucius Caflish

(Leiden and Boston: Brill, 2007) 235–53, 235. Limbach et al., Judicial Independence, paras. 8–9, at 7–8. Yet, consider Coomber, ‘Judicial Independence’, at 8: ‘With no explanation, that draft that was ultimately adopted omitted reference to the CoM and consolidated the role in the Parliamentary Assembly.’

4Limbach et al., Judicial Independence, at 20: ‘First, the Directorate General for Human Rights (DGHR) reviews the model curriculum vitae of each candidate to ensure that their applications confirm that they fulfill the formal requirements, such as language liability. The assessment is made purely on the basis of material provided in the curriculum vitae: the DGHR does not check any of the information. There are no known cases in which the DGHR has questioned the caliber of candidates submitted by States.’

5Limbach et al., ibid., at 8.

6Ibid., at 9: ‘The CoM, while on paper the body that should be empowered to engage with governments on their nomination procedures and reject unacceptable lists, is concerned more with safeguarding State sovereignty than with ensuring the quality of nominated candidates. Accordingly it fails to engage in meaningful dialogue with States on their internal nomination procedures and to evaluate the quality of candidates submitted.’

7Committee of Ministers, ‘Informal Procedure for the Examination of Candidatures for the Election of Judges’, CM/Del/Dec/Act(96)547/1.3, (CM/Inf(2004)47, 1 December 2004, 593rd meeting, 1997).

8Ibid.

9Parliamentary Assembly, ‘Effective Implementation of the ECHR: The Interlaken Process’, Res. 1726(2010), 29 April 2010.

that many judges will have to be replaced in the following months.10 Currently the PACE and the States are the main actors in this matter. What is especially interesting is how the relationships between the Court and the PACE have evolved from a lack of concern to mutual respect.

1.1 The responsibility of the PACE

States are not completely free to select their three candidates. Both the PACE and the Court may interfere in that process. The guidelines very recently issued11 by the CoM also apply to the national selection stage. They incorporate national good practices and the recommendations made by the PACE. So it appears that the CoM, through this document, intends to bring its formal support to the PACE’s practice.

During the last fifteen years, the goal of the PACE has been to harmonise and enhance the quality of the national procedures by imposing a model resume and by inviting States to issue public and open calls for candidatures.12 In its Resolution adopted on 1 December 2008, The PACE listed the various requirements for States, that is to say: ‘4.1. Issue public and open calls for candidatures; 4.2. When submitting the names of candidates to the Assembly, describe the manner in which they had been selected; 4.3. Transmit the names of candidates to the Assembly in alphabetical order; 4.4. Candidates should possess an active knowledge of one and a passive knowledge of the other official language of the Council of Europe (see model curriculum vitae appended hereto); and 4.5. That, if possible, no candidate should be submitted whose election might result in the necessity to appoint an ad hoc judge.’13 A model resume was attached in the appendix.

10 In 2011 the election of the judges took place for Switzerland, Norway, France and Portugal. In 2012, the judges’ mandate expired for Belgium, Croatia, the Czech Republic, Poland, the Russian Federation, Sweden and the UK.

11Committee of Ministers, ‘Guidelines of the Committee of Ministers on the Selection of Candidates for the Post of Judge at the European Court of Human Rights’, Explanatory Memorandum, CM(2012)40 addendum final, 29 March 2012.

12When submitting the names of candidates to the Assembly, the states are required to describe the manner in which they were selected, see Parliamentary Assembly, ‘Nomination of Candidates and Election of Judges to the European Court of Human Rights’, Res. 1646(2009), 27 January 2009 (hereinafter Res. 1646(2009)).

13Parliamentary Assembly, ‘Nomination of Candidates and Election of Judges to the European Court of Human Rights’, Doc. 11767 (Rapporteur: C. Chope), 1 December 2008 (hereinafter Doc. 11767).