The Conscience of Europe

The ‘Conscience of Europe?’

Navigating Shifting Tides at the European Court of Human Rights

Foreword by Professor William Binchy

Edited by Robert Clarke

Kairos Publications

© 2017 ADF International

All rights reserved

Published by Kairos Publications,

Austria

www.kairos-pr.com

ISBN: 978-3-9503851-3-7

Layout and charts designed by Dave Clarke

www.daveclarke.me | dave@daveclarke.me

Preface

The European Court of Human Rights (ECtHR) has sometimes been a friend, and sometimes a foe to those fighting for marriage, the family, life, and religious freedom in Europe. Its jurisprudence has not always been consistent and the “consensus” model seems to be the antithesis of the proper role of human rights in protecting all – and, in particular, minorities. Nevertheless, there are ways for interested parties to use the European Convention on Human Rights (ECHR) mechanisms to effect positive change – and areas in which this is more likely to be successful than others.

This targeted manual was prepared in advance of a meeting of lawyers, NGO leaders, politicians, and others to consider the contribution of the Council of Europe system, and in particular the ECtHR, to these areas. The final collection has benefited from robust debate and dialogue during this daylong symposium held in Strasbourg in 2016. As a result, this book in reality has many more contributors than are listed as authors. Particular thanks therefore goes to all of the named contributors, as well as to Alexandra Tompson for her research assistance, and Elisabeth Gudenus for her technical work. I hope it will be a valuable resource to those seeking to deploy ECHR jurisprudence at a national level, and those seeking recourse to the ECtHR in Strasbourg.

Robert Clarke, Vienna, 2017

Foreword

The Editor of this book, Robert Clarke, and the several contributors, are to be congratulated for having produced a work that is meticulously researched, fair-minded in analysis and provocative of further reflection by readers who care about the work of the ECtHR.

The Court has a formidable task: to protect the human rights of more than 800,000,000 human beings living in forty-seven States whose political and social cultures vary widely. The Convention is now well over half a century old. Attitudes today on such matters as marriage, procreation, abortion, and euthanasia are far less cohesive than in 1950. There is substantial disagreement between, and within, different States. No court could provide answers that will accommodate such conflict to the satisfaction of everyone. The question, therefore, is: how should the ECtHR deal with these irreconcilable differences?

The ECtHR might have adopted a philosophical and normative approach that sought to ensure core protection of human rights consistent with extending to States a generous margin of appreciation. This was indeed the approach favoured by the ECtHR for many years. Recently, however, the ECtHR has taken a quite different stance. It still adheres to the margin of appreciation doctrine but in a way that, in effect, tends to advance secularist values at the expense of religious freedom. More ominously, it has used the notion of consensus to damage

the position of those States that do not subscribe to attitudes and values that have gained currency in the laws of many other States. The idea that a human right can depend on whether five or twenty five States have enacted a particular law should be abhorrent to anyone who understands that human rights are not the gift of legislators.

The contributions to the book carefully analyze the jurisprudence of the ECtHR and provide a critique that is respectful of the ECtHR’s role but not reluctant to identify the underlying values, political compromises and political agendas. The level of scholarship is formidably high; the concern for human rights and for respect for freedom of religion is palpable.

Professor William Binchy1

1.BA BCL LLM (NUI) MA (DUBL) FTCD (1995), Barrister-at-Law, Honorary Bencher (King’s Inns). William Binchy is Regius Professor of Laws. He was formerly a special legal adviser on family law reform to the Irish Department of Justice and Research Counsellor to the Law Reform Commission. He was a Commissioner with the Irish Human Rights Commission for two terms, from 2000 to 2011. He was Visiting Fellow at Corpus Christi College, Cambridge (Michaelmas Term 2002) and Visiting Fellow at the Institute of European and Comparative Law, Oxford (June 2011). He has authored and co-authored books on private international law, torts, and family law, and sits on the ADF International Advisory Council.

Evolution, Consensus, and the Margin of Appreciation

Paul Coleman1

In the present judgment the Court once again relies on the national authorities’ “margin of appreciation.” I believe that it is high time for the Court to banish that concept from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies.2

I. Introduction

In recent years, the ECtHR has issued a number of judgments on controversial moral and ethical issues. These decisions, based largely on creative interpretations of the ECHR, override national sovereignty and undermine the ECtHR’s

1.Senior Counsel and Deputy Director of ADF International in Vienna. Coleman has been involved in more than 20 cases before the ECtHR. He is the author of two books and numerous published articles. He is a solicitor of the Senior Courts of England and Wales.

2.Dissenting Judgment of Judge De Meyer in Z v. Finland, no. 22009/93, 25 February 1997.

legitimacy. The evolutive interpretation of the ECHR gives judges license to fabricate new rights and, unless more judicial restraint is exercised, there is a danger that the ECtHR will lose its legitimacy and its claim to be the conscience of Europe.

Sitting alongside the ECtHR’s evolutive interpretation of the ECHR is its use of the concept of a “European consensus” to reduce Member States’ margin of appreciation. There is no reason why a majority of countries legislating in one direction should force the remaining minority to conform to the trend, yet that is exactly what the “European consensus” approach does, resulting in a “tyranny of the majority” on morally controversial issues.

II. The ECtHR’s “Evolutive Interpretation” of the Convention

Since the 1970s, the ECtHR has taken a so-called “evolutive approach” to the meaning of the ECHR. As former President of the ECtHR, Jean-Paul Costa, put it, the Court has:

taken the view that the text should be interpreted, and applied, by adapting it to the changes that have taken place over time – to changes in society, in morals, in mentalities, in laws, but also to technological innovations and scientific progress.3

3.Jean-Paul Costa, “What are the limits to the evolutive interpretation of the Convention?” Dialogues between Judges (European Court of Human Rights, Strasbourg. 2011), 5.

The ECtHR bases its authority to adopt an evolutive approach on the ECHR4 and its preamble, and the Vienna Convention on the Law of Treaties.5 The ECHR’s Preamble states that one of the purposes of the Court is “the maintenance and further realization of human rights and fundamental freedoms.”6

According to former Vice-President of the Court, Françoise Tulkens:

“Maintenance” requires the Court to ensure in particular that the rights and freedoms set out in the Convention continue to be effective in changing circumstances. This concern for effectiveness is the main driving force behind the interpretative methods developed by the Court. “Further realisation” allows for a degree of innovation and creativity, extending the reach of the Convention guarantees, especially when it is necessary to protect the substance of the rights and freedoms.7

However, in recent years there appears to be no limit to the extent to which judges may “extend the reach” of the ECHR. Such reinterpretation undermines the authority of the ECtHR

4.Article 32 (1) of the ECHR sets out the jurisdiction of the Court, and gives the Court jurisdiction over the “interpretation and application” of the ECHR.

5.The Court has looked to Article 31 of the VCLT to develop its interpretative approach. Article 31 (1) of the VCLT “establishes the purposive/teleological method of interpretation, giving priority to the object and purpose of treaties,” while Article 31 (2) states that a treaty’s preamble is properly part of the context for the interpretation of a treaty.

6.Preamble, ECHR.

7.Françoise Tulkens, “What are the limits of the evolutive interpretation of the Convention?” Dialogues between Judges (European Court of Human Rights, Strasbourg, 2011), 6.

and the importance of the ECHR. As detailed below, there are several examples where the ECtHR has moved well beyond the original text and meaning of the ECHR.

III. Examples of an Evolving Convention

In the case of Koch v. Germany, 8 the Fifth Section of the ECtHR unanimously held that there had been a violation of Article 8 of the ECHR guaranteeing the right to respect for private and family life.

The case involved a request for lethal poison by a severely paralyzed woman with a life expectancy of at least a further fifteen years. The German authorities refused to prescribe the poison and she appealed the decision through the German courts. However, during the legal process she and her husband travelled to Switzerland where she was helped to commit suicide at the Dignitas facility. Her husband then brought a case before the ECtHR, arguing that the German authorities violated the Convention by refusing to prescribe the poison and consider his further appeals.

Although the ECtHR fell short of declaring that a right of privacy includes a right to assisted suicide, it held that Germany breached Article 8 because the domestic courts refused to examine the merits of an attempt to purchase lethal drugs. In order to reach this surprising decision, the ECtHR found a

8. Koch v. Germany, no. 497/09, 19 July 2012.

new way of interpreting Article 8 of the Convention, holding that a “procedural aspect” of Article 8 had been violated by the German authorities.

The ECtHR started its analysis of the merits with a striking assertion: “Article 8 of the Convention may encompass a right to judicial review even in a case in which the substantive right in question had yet to be established.”9 Based on this approach, the ECtHR went on to hold that the refusal of German administrative and judicial bodies to examine the merits of the application interfered with the applicant’s right to respect for private life.

Prior to the case, the ECtHR had only recognized procedural guarantees relating to Article 8 in cases where the existence of a substantive right was not in doubt. Indeed this is the only approach that makes sense. Thus, the ECtHR found procedural “penumbras” emanating from non-existent Article 8 substantive rights. In essence, a violation of Article 8 was found because a country that considers it unlawful to administer lethal poison, refused to consider a request for lethal poison. The Grand Chamber refused to hear Germany’s appeal.

In Costa and Pavan v. Italy, 10 the Second Section of the ECtHR unanimously held that Italy had violated Article 8 of the ECHR. The case concerned a healthy Italian couple who are carriers of cystic fibrosis. The couple wanted to guarantee,

9. Ibid., § 53. Emphasis added.

10. Costa and Pavan v. Italy, no. 54270/10, 28 August 2012.

with the use of medically-assisted procreation (IVF) and genetic screening (preimplantation diagnosis), that any future child they conceived would not have the disease. At the time, preimplantation diagnosis was unlawful under Italian law due to concerns over eugenic selection and the possible impact on the dignity and freedom of conscience of the medical professions.

The ECtHR noted that preimplantation diagnosis “raises sensitive moral and ethical questions”11 but nevertheless stated that “the solutions reached by the legislature are not beyond the scrutiny of the Court.”12 In overriding the position of the Italian legislature, the ECtHR held that a lack of access to genetic screening constituted an interference with Article 8 of the ECHR, which, in the case of Costa and Pavan, could not be justified. In essence, a violation of Article 8 was found because the national bodies refused to allow medically-assisted procreation and genetic screening. The Grand Chamber did not accept Italy’s request for referral.

Going into the case of Gross v. Switzerland, 13 the clear jurisprudence of the ECtHR had been that there is no right to assisted suicide or euthanasia under the ECHR, nor are there any positive obligations on the State in regard to these issues, save the positive duty on the Member States to protect life under Article 2. Moreover, the ECtHR had unanimously ruled on the issue of assisted suicide in the very similar case of Haas

11. Ibid., § 61.

12. Ibid

13. Gross v. Switzerland, no. 67810/10, 14 May 2013.

v.Switzerland in 2011,14 holding that restricting access to lethal drugs was not a violation of the ECHR.

Despite the previous case-law of the ECtHR15 and the obvious risks involved in liberalizing the distribution of lethal poison, the ECtHR nevertheless held that “the applicant’s wish to be provided with a dose of sodium pentobarbital allowing her to end her life falls within the scope of her right to respect for her private life under Article 8 of the ECHR.”16

Having found that the right to a lethal poison comes within the scope of the ECHR, the ECtHR then assessed whether there had been a breach of this “right.” Rather than tackling the issues head on – having done this in Haas v. Switzerland and with a unanimous decision against the applicant – the ECtHR instead focused on the guidelines issued by the Swiss authorities. It concluded that:

Swiss law, while providing the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, does not provide sufficient guidelines ensuring clarity as to the extent of this right. There has accordingly been a violation of Article 8 of the Convention in this respect.17

14. Haas v. Switzerland, no. 31322/07, ECHR 2011.

15.For example, Pretty v. the United Kingdom, no. 2346/02, ECHR 2002III; Haas

v.Switzerland, no. 31322/07, ECHR 2011.

16. Gross, § 60.

17. Ibid., § 67.

The ruling was a four votes to three decision and in the dissenting opinion, three judges stated that the Swiss guidelines, “sufficiently and clearly define the circumstances under which a medical practitioner is allowed to issue a prescription for sodium pentobarbital.”18

Therefore, four judges found that the right to poison is protected under the ECHR and unclear guidelines surrounding this “right” are in violation of the ECHR. In contrast, three judges found that the guidelines were clear, that the applicant did not qualify, and that the position of the Swiss authorities was plainly justifiable under the ECHR. The case was ultimately thrown out by the Grand Chamber for an abuse of process on unconnected grounds, yet that favourable outcome does not absolve the Second Section of this earlier troubling reasoning.

Even taking account of the ECtHR’s evolutive interpretation of the Convention, the Court has long recognized that such interpretative methods must have their limits.19 As the ECtHR has held on numerous occasions, while the ECHR must be interpreted in the light of present-day conditions, the ECtHR cannot, by means of an evolutive interpretation, “derive from [it] a right that was not included therein at the outset.”20

18.Joint Dissenting Opinion of Judges Raimondi, Jočienė and Karakaş, § 1.

19.See, for example, “What are the limits of the evolutive interpretation of the Convention?” Dialogues between Judges (European Court of Human Rights, Strasbourg. 2011).

20. Johnston and Others v. Ireland, 18 December 1986, § 53, Series A no. 112; Emonet and Others v. Switzerland, no. 39051/03, § 66, 13 December 2007.

IV. The History of “European Consensus”

At the heart of the evolutive approach is the idea of the “European consensus” – a principle that allows the ECtHR to apply evolutive principles when the responding Member State’s actions are considered to be “out of step” with other European countries.

Such an approach was first developed in the 1970s. In Tyrer v. United Kingdom21 the ECtHR held that “the Convention is a living instrument which … must be interpreted in the light of present-day conditions.”22

A few months after Tyrer, the ECtHR invoked the concept of a European consensus to help decide Marckx v. Belgium.23 In Marckx, an unwed mother challenged a Belgian law that denied automatic recognition of the maternal affiliation of illegitimate children as violating Articles 8 and 14 of the ECHR. In deciding in favour of the applicant, the ECtHR admitted that discrimination between legitimate and illegitimate family was “permissible and normal” at the time of the ECHR’s drafting, but citing Tyrer wrote:

The Court cannot but be struck by the fact that the domestic law of the great majority of the Member States of the Council of Europe has evolved and is continuing to evolve, in company with the

21. Tyrer v. United Kingdom, 25 April 1978, Series A no. 2.

22. Ibid., § 31.

23. Marckx v. Belgium, 13 June 1979, Series A no. 31.

relevant international instruments, towards full juridical recognition of the maxim ‘mater semper certa est.’24

In support of its claim of an evolving consensus, the ECtHR cited two treaties, both of which had been ratified by only four members of the Council of Europe.25 The ECtHR attempted to buttress this weak evidence by arguing that “both the relevant Conventions are in force and there is no reason to attribute the currently small number [of parties] to a refusal to admit equality between ‘illegitimate’ and ‘legitimate’ children.”26

The mere existence of the treaties “denotes that there is a clear measure of common ground in this area.”27 Hence, it appears that the nascent concept of European consensus did not even require consensus. To borrow a phrase from another context, finding consensus is akin to “looking over a crowd and picking out your friends.”28

V. “European Consensus” and the Margin of Appreciation

Increasingly, the concept of “European consensus” is used by the ECtHR to interpret the ECHR more liberally. This has the practical effect of undermining the sovereignty of

24. Ibid., § 41.

25. Ibid.

26. Ibid.

27. Ibid

28.Although the analogy has been applied to many different scenarios, particularly the use of foreign law in U.S. jurisprudence, the quote can be traced to Patricia M. Wald, “Some Observations on the Use of Legislative History in the 1981 Supreme Court Term” 68 Iowa L. Rev. 195, 214 (1983).

Council of Europe Member States by reducing the margin of appreciation afforded to them in areas that could be completely unforeseeable.

Before looking at some examples of the “European consensus” in action, it is first worth considering the ECtHR’s margin of appreciation doctrine and its role in the ECHR regime. In short, the margin of appreciation is a discretion granted to States by the ECtHR in the State’s fulfilment of their ECHR obligations. The ECHR does not refer to a margin of appreciation and it was first referenced in a case referring to human rights violations in Cyprus from 195829 as certaine marge d’appréciation. 30 The practice of granting the margin of appreciation has subsequently developed and become a vital way in which Member States can maintain their own position on sensitive moral, cultural, or ethical issues.

Whether or not the margin of appreciation is considered wide or narrow is a somewhat fluid process, leaving the doctrine open to criticism. One way in which the ECtHR considers that the margin of appreciation can be reduced is by reference to a European consensus: if a European consensus is established on any given matter, the ECtHR will argue that this reduces Member States’ margin of appreciation. Thus, it is the established position of the Court that a majority position of Member States can override a minority position. Such an approach is

29.The Cyprus Case (Greece v. the United Kingdom) (1958-59) 2 Yearbook of the European Convention on Human Rights 172-197. 30.Translated as: “a certain measure of discretion.”

antithetical to the entire human rights project which heavily emphasizes the rights of the minority.

VI. Examples of “European Consensus” in Practice

In A, B and C v. Ireland, 31 the ECtHR recognized the “acute sensitivity of the moral and ethical issues raised by the question of abortion”32 and therefore afforded the Irish State a broad margin of appreciation in principle. However, it then went on to consider “whether this wide margin of appreciation is narrowed by the existence of a relevant consensus.”33 It concluded that:

contrary to the Government’s submission, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law.34

Similarly, in a string of cases regarding “sexual orientation and gender identity,” the ECtHR has again relied on the European consensus concept to drive its jurisprudence forward. For example, in the case of Goodwin v. United Kingdom35 the ECtHR emphasized that there was “clear and uncontested evidence of a continuing international trend in favour not only of increased

31. A, B and C v. Ireland [GC], no. 25579/05, ECHR 2010.

32. Ibid., § 233.

33. Ibid., § 234.

34. Ibid., § 235.

35. Goodwin v. United Kingdom, no. 28957/95, 11 July 2002.

social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.”36 The ECtHR, having failed to establish a consensus, chose to rely on a “trend.”

In Schalk and Kopf v. Austria37 the ECtHR noted that:

[T]here is an emerging European consensus towards legal recognition of same-sex couples. Moreover, this tendency has developed rapidly over the past decade. Nevertheless, there is not yet a majority of States providing for legal recognition of same sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes.38

In the case of X and Others v. Austria39 a discussion on European consensus regarding same-sex adoption was prevalent throughout the ECtHR’s judgment. According to the Court, there were ten countries in Europe that were relevant for the comparison. Of these ten, six took a different position to Austria and four took the same position. Thus, there was clearly no consensus one way or another. However, rather than admitting that fact and indicating a wide margin of appreciation, the Court held that “no conclusions can be drawn as to the

36. Ibid.

37. Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010.

38. Ibid

39. X and Others v. Austria [GC], no. 19010/07, ECHR 2013.

existence of a possible consensus”40 because the sample size was too small.

In Vallianatos and Others v. Greece41 the ECtHR noted that “there is no consensus among the legal systems of the Council of Europe Member States”42 regarding same-sex relationships. However, it went on to state that “a trend is currently emerging with regard to the introduction of forms of legal recognition of same-sex relationships.”43

Thus, on issues such as the legal recognition of transsexuals and the legal recognition of same-sex relationships, the ECtHR applied the principle of “European consensus” in overriding the position of the country in question. On other issues where no such consensus exists, for example, same-sex “marriage”, the reasoning of the ECtHR makes it clear that once more countries change their laws; other countries may no longer have the ability to decide the issue for themselves.

This comparative method, used by the ECtHR to declare wide or narrow margins of appreciation, is manifestly unsound and very dangerous. Firstly, the mechanism of consensus is fundamentally flawed as the ECtHR exercises total discretion in how it finds or avoids claims to consensus. Secondly, the foundational premise of seeking consensus runs contrary to

40. Ibid., § 149.

41. Vallianatos and Others v Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013 (extracts).

42. Ibid., § 91.

43. Ibid.

human rights theory: the protection of the minority against the power of the majority. Why should the mere fact of a majority of countries legislating in one direction force the remaining minority to conform to the trend – especially in the absence of a clear substantive right based in the text of the ECHR?

VII. Conclusion

The legitimacy of the ECtHR is at its highest when its decisions have a clear textual basis in the ECHR. The Member States respect the ECtHR’s judgments because they are viewed as the result of a genuine adjudication process, not as ideological decisions coming out of a political process.

The more that judges are empowered to creatively interpret the ECHR, the greater the risk of the ECtHR becoming politicized. For example, in the case of Lautsi v. Italy, 44 involving the removal of crucifixes in public classrooms, the Second Section of the ECtHR unanimously held that there had been a violation of the ECHR. The decision was patently outrageous and, following a major backlash, the Grand Chamber reversed the decision by fifteen votes to two. Such a major swing on an essentially political and sensitive topic was remarkable and also begs the question – what “violation” did seven judges in the Second Section see that fifteen judges at the Grand Chamber did not?

There is a real danger that if the ECtHR continues to override the national sovereignty of Member States by treating the ECHR as a “living instrument” and expanding its scope in ever more far-fetched and controversial ways, the ECtHR will lose the legitimacy and respect of Member States. To reiterate what has been held many times in the past, the ECtHR cannot, by means of an evolutive interpretation, “derive from [the ECHR] a right that was not included therein at the outset.”45 For the long term future of the ECtHR to be secured, it must return to this principle.

45. Johnston and Others v. Ireland, 18 December 1986, § 53, Series A no. 112.