Human Rights Law Review Advance Access originally published online on January 20, 2009
Human Rights Law Review 2009 9(1):37-60; doi:10.1093/hrlr/ngn033
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Separate opinions in the European Court of Human Rights
*Professor of Law, The University of Leicester (robin.white{at}leicester.ac.uk).
**Sometime Research Associate, The University of Leicester.
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Abstract |
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 Top Abstract 1. Context2. The Research Project3. Prior Research4. Some Quantitative Outcomes...5. Our Interviews With...6. Some Reflections |
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Separate opinions, both concurring and dissenting, have been a feature of judgments of the European Court of Human Rights since its earliest days, but detailed studies of their incidence and impact have until recently been sparse. This article, based on an AHRC-funded research study, offers a survey of the research literature and describes the outcome of its own consideration of such opinions. The use of separate opinions in the European Court of Human Rights is significant, but the incidence of sole dissents by national judges is very low. It would appear that the main determining factor in the writing of a separate opinion is judicial temperament. There is some evidence that the background of judges prior to their election to the Court has some influence on their approach to writing separate opinions. The Court, however, demonstrates high levels of collegiality and the use of separate opinions contributes to the transparency of its decision-making.
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1. Context |
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TopAbstract1. Context2. The Research Project3. Prior Research4. Some Quantitative Outcomes...5. Our Interviews With...6. Some Reflections |
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The European Court of Human Rights (the Strasbourg Court or Court) sits at something of a crossroads. It is widely recognised as having features of a constitutional court. The Strasbourg Court's judgments recognise that the Court now exercises constitutional functions for the Member States of the Council of Europe. In the Loizidou Case, the Court famously described the Convention as ‘a constitutional instrument of European public order’.1 Perhaps significantly, that formula has been repeated only once or twice in subsequent cases; and seemingly only once in a judgment of the Court.2 The former President of the Strasbourg Court is on record as describing it: ‘pretty much as a European constitutional court’.3 Elsewhere, he says:
‘Whether the European Court of Human Rights is itself a "Constitutional Court" is largely a question of semantics. We can always call it a quasi-Constitutional Court, sui generis.’4Yet currently the Strasbourg Court does not select the cases upon which it adjudicates, as constitutional courts commonly do. Once a case is declared admissible,5 there will be a determination by a Chamber or Grand Chamber of the Court on the merits. It is the authors’ thesis that the form of judgments is related to the function of a court; there is therefore likely to be a relationship between a propensity to write separate opinions in the Strasbourg Court and the perception by judges of its role.
Article 45 of the European Convention on Human Rights provides that reasons must be given for judgments, and in the second paragraph goes on to say:
If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.6Rule 74(2) of the Rules of Court provides:
Any judge who has taken part in the consideration of the case shall be entitled to annex to the judgment either a separate opinion, concurring with or dissenting from that judgment, or a bare statement of dissent.The purpose of giving reasoned judgments may seem obvious in a modern age, and we now take for granted the offering of an explanation for the result which has been reached.7 The system set in place by the European Convention on Human Rights for judicial decision-making adopted8 a variant of the common law tradition of permitting multiple opinions in contrast to the civil law tradition of delivering a single reasoned opinion, and permitting no separate opinions, the latter being the system that is more often, though not universally, met in constitutional courts.9 It is, however, important to recognise that there is a judgment of the Court10 to which are annexed separate and dissenting and concurring opinions.11 Although the ability to annex a separate opinion is expressed in the Convention as permissive,12 the tradition of the Strasbourg Court is very much that those dissenting will file an opinion setting out the reasons for their dissent. Equally, many judges clearly take the view that differences in reasoning which lead to the same conclusion as that of the Court in its judgment should also be articulated.
The capacity of the Strasbourg Court to cope with the volume of applications it receives has increasingly been called into question. Protocol No 14 was adopted in order to provide some breathing space by making more efficient use of the judicial resources of the Court. But entry into force of that Protocol has been stalled by the persistent failure of the Russian Federation to ratify it. That situation does not look to have an early resolution.13 The Protocol included the controversial addition to the admissibility criteria, which could be viewed as the beginnings of a move towards selection of cases for determination on the merits other than by reason solely of matters relating to admissibility. Article 12 of the Protocol amends Article 35(3) ECHR to read:
The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:Article 20 of the Protocol provides:...
b the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.
In the two years following the entry into force of this Protocol, the new admissibility criterion may only be applied by Chambers and the Grand Chamber of the Court.14
Because the Court sits in Chambers of seven or Grand Chambers of seventeen to consider the merits of cases and, where violations of the Convention are found, issues relating to just satisfaction, considerable judicial resources are devoted to judgments in such cases. Does the ability to annex a dissenting or concurring opinion to the judgment of the Court assist or detract from the efficiency of judicial decision-making, and what contribution does it make to the case law of the Strasbourg Court when it is only the judgment of the Court which carries authority?15 Is the only way forward for the Strasbourg Court to move to a system under which it selects the cases whose merits it considers, thus applying judicial resources more efficiently to major questions of the development of Convention rights? It is in this context that a research project into separate opinions in the Strasbourg Court was undertaken.
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2. The Research Project |
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TopAbstract1. Context2. The Research Project3. Prior Research4. Some Quantitative Outcomes...5. Our Interviews With...6. Some Reflections |
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This article summarises some of the findings from a two year Arts and Humanities Research Council funded research project exploring separate opinions over the six calendar years 1999–2004.16 The years chosen represent the first six full calendar years of the operation of the permanent Court established under Protocol 11.17 The research project has involved the construction of a database of all judgments of the Strasbourg Court for the six-year period in which key information about the case and about the frequency and type of separate opinion has been stored. Additionally, information about the composition of the Court, the issues raised in the case, and the outcome has also been stored.18 Just under 4,000 judgments have been entered into the database.
Following the construction of the database, some quantitative analysis took place followed by some qualitative analysis of the outcomes, as well as structured interviews with judges at the Strasbourg Court. The intention was to examine patterns of the use of dissents and concurring opinions, and their contribution to the development of the case law of the Strasbourg Court. The Leicester Study, however, is not the first study of the use of concurring and dissenting opinions, and, therefore, we also conducted a literature review of other work touching on the issues we were investigating. Much of the discussion of the propensity to write concurring or dissenting opinions has been linked to judicial activism and judicial restraint. What do these terms signify in the context of decision-making in the Strasbourg Court?
A. Judicial Activism and Judicial Restraint
This issue of judicial activism in the Strasbourg Court is closely linked to the repeated recognition by the Strasbourg Court that the Convention is a living instrument which must be interpreted in the light of present day conditions and not simply limited to what was in the minds of the drafters of the Convention.
In the Tyrer Case,19 the Court said ‘[t]he Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions.’20 A HUDOC21 search reveals that the phrase ‘the Convention is a living instrument’ has been used in 28 cases.22 The requirement that the Convention is interpreted as a living instrument means that it has to be given something of an activist interpretation. The Convention could not be a living instrument if its interpretation remained static; the content of the Convention rights will change over time. Most, but not all, commentators consider that this change must always operate to enhance the content of human rights.23
Judicial activism is a label used to refer to a judicial approach which seeks to extend or modify existing law especially in cases where policy choices are before the Court, while judicial restraint is a label used to refer to a judicial approach which focuses upon the judge applying existing case law and avoiding developing the law beyond its clearly established parameters. It is sometimes suggested that judicial activism takes the judge into the realm of the policy-maker, while judicial restraint recognises the separation of law-maker and law-applier. Mahoney comments:
Judicial activism raises the spectre of judges illegitimately enlarging their role in society to one of legislating on general policy matters and of exceeding their given functions of interpretation, whereas judicial self-restraint carries the risk of judges abdicating their responsibility of independent review of governmental action.24Mahoney argues:
The conclusion of the present study is that, as far as the European Convention on Human Rights is concerned, the dilemma of activism versus restraint is more apparent than real, in that activism and restraint are complementary components of the methodology of judicial review inherent in the very nature of the Convention as an international treaty intended to secure effective protection of human rights and fundamental freedoms.25The role of the Strasbourg Court is to interpret and apply the Convention.26 The open texture of many of the provisions of the Convention has required choices to be made by the Court in adding substance to the text of the Convention. In some cases, the position of the Court changes over time, reflecting the nature of the Convention text as a living instrument to be interpreted in its present day context rather than being stuck in the early 1950s.27 Clearly such a context is likely to generate differences of opinion among the Strasbourg Court's judiciary.
The nature of the Convention as a living instrument is closely linked to the doctrine of the margin of appreciation, according to which the Strasbourg Court defers to the assessment of circumstances and of permissible limitations to Convention rights by the Member States in determining whether there has been a violation of the Convention.28 This too is a common source of disagreement among judges at the Strasbourg Court. One leading study of the margin of appreciation concludes:
The margin of appreciation must be understood as an essential constitutional device designed to preserve the fundamental prerequisite and virtue of a liberal democratic society: value pluralism. The doctrine's only defensible rationale during and after the process of integration is to enable the Strasbourg Court to provide endorsement of the maintenance of cultural diversity, ensuring to the citizens of Europe the means to articulate and practice their preferred values within a multi-cultural democracy.29But the margin of appreciation doctrine cannot be an excuse for abdication of responsibility in deciding difficult cases on the interpretation and application of the Convention. Happily the case law of the Strasbourg Court over the years shows more examples of courageous extension of human rights than capitulation to national preferences.
It is the articulation of the reasoning of the Strasbourg Court in the clearly identified judgment of the Court, coupled with annexed dissenting and concurring opinions which enables the reasoning of individual judges to be identified. The Strasbourg Court would therefore appear to fall into what Lasser describes as the publicly argumentative model.30 The Court's judgments identify the judiciary deciding the case, and contain factual, procedural and interpretative explanations, including summaries of, and responses to, the arguments of the parties and any interveners. The explanations provided show the parties how the law has been applied to the facts to produce the result in the case. This transparency of reasoning is further enhanced by the ability of judges either to add riders in support of the judgment of the Court, or to dissent from the conclusions of the majority in whole or in part. The system places a high premium on personal and institutional independence of the judiciary, coupled with transparency since it will always be possible to determine the view of any particular judge in the case. Lasser says of judgments of this type:
The legitimacy of a given judicial decision thus stands and falls in large measure on the logic and argumentation of the signed judgment, not the structural legitimacy of the entire judicial apparatus from which it hails.31
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3. Prior Research |
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TopAbstract1. Context2. The Research Project3. Prior Research4. Some Quantitative Outcomes...5. Our Interviews With...6. Some Reflections |
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We are not the first to consider or comment upon the phenomenon of separate opinions in the Strasbourg Court. There has also been extra-judicial comment on the function, purpose and use of separate opinions.
On an analysis of all Court judgments from 1991 to 1995, Bruinsma and de Blois32 found that there was no correlation between outcome of a case and the likelihood of separate opinions.33 The frequency was around 60 percent regardless of whether a violation was found. Their sample presented 67 judgments in which no violation was found, as against 126 judgments in which a violation was found. Bruinsma and de Blois conclude that at one level, the impact of national backgrounds is not great, though they argue that they have found some ‘striking examples of national bias in separate opinions’.34 The authors then identify undercurrents in the judicial approach to interpretation and application of the Convention, which they argue indicate a conservative or judicial restraint approach to the Convention as against a liberal or judicial activist approach to the Convention.
This is a theme picked up in an interview with Judge Wildhaber as President of the Strasbourg Court.35 Judge Wildhaber agrees with the proposition that a common distinction in the interpretation of constitutions is between judicial restraint and judicial activism, and that this distinction can be applied to the Strasbourg Court. But he qualifies this response by noting that the Court operates largely through its Chambers:
One of the judges may move ahead and when the composition of the Chamber is favourable, the majority may do something very activist. If you then follow precedent, you are bound to follow the outcome of judicial activism. As a result, you can be on the side of judicial self-restraint and at the same time you want to change precedent. Because of the complexities of our Court it is not a simple continuum. Are you to the same extent a judicial activist when it concerns your own country? You know your own system, you know it works and you think it hasn’t led to many abuses. Even as a very objective observer you may be more lenient towards your own country.36In a separate response the judge indicates that he is more on the side of self restraint in relation to the interpretation of Articles 5 and 6, is more on the side of judicial activism in relation to Article 8, and in the middle in relation to Article 10 of the Convention.37
One of the first detailed studies of separate opinions is that of Rivière.38 This work is one of the few to consider the impact of the different types of separate opinion: dissenting opinions; partly dissenting opinions; concurring opinions; and partly concurring and partly dissenting opinions; and combinations of judges working together to produce such separate opinions. Rivière examines both the nature and function of such opinions. The study is broadly favourable in its conclusions on the use of separate opinions, and views the common law approach of permitting concurring and dissenting opinions as evocative of the continental European procedure of opinions of advocates general and similar judicial offices, as well as the contribution of legal doctrine. The qualitative part of the study39 argues that separate opinions serve to aid in interpretation, clarify the law, comment on it and review it. The main value of Rivière's work is its analysis of different types of separate opinions. She identifies a number of bifurcations: between opinions addressing the foundations of the reasoning of the judgment of the Court and those addressing criticisms of consistency in the Court's case law; between opinions concerned with admissibility issues and fact-finding and opinions concerned with substantive rights; and between those motivated by different approaches to the interpretation of the Convention, broadly a close textual approach versus a broader purposive interpretation.
Bruinsma, in a 2006 piece, examines the relationship between the legal background of judges, their individual opinions and national bias.40 Judges were interviewed. Backgrounds were classified as former judges, former academics, former administrators, and former practising lawyers, with a fifth category for those whose prior experience was a combination of the above. Bruinsma concludes that the formative years do affect judicial temperament in the Strasbourg Court. The distinctive features of the four classifications of former experience are marked by identifiable tendencies. Former practitioners are more likely to see themselves as members of a collegiate body delivering majority judgments; the filing of separate opinions is of minor importance. Former administrators and academics prefer to decide cases one by one as building dynamic human rights case law. Former trial judges and lawyers are characterised as used to thinking in terms of case particularities, while former academics and administrators are characterised as used to thinking in terms of the general interest and policy considerations. But it is also clear that these were merely tendencies and not universal truths about background.
Voeten has also sought to draw conclusions from quantitative data.41 But his conclusions differ from those of Bruinsma, and are deeply rooted in the judicial activism versus judicial restraint debate. This study leads to four conclusions.42 Firstly, judges do vary in the deference they show to respondent States in assessing whether there has been a violation of the Convention. Secondly, politics plays a role in judicial appointments to the Strasbourg Court.43 Thirdly, Member States seek to make appointments to the Strasbourg Court which match their preferences.44 Finally, the Strasbourg Court's composition has become more activist over time ‘as governments have tended to replace more restrained judges with more activist judges’.45 Voeten argues that this is driven by increasing European integration, and that States aspiring to membership of the European Union seek to show their human rights credentials by appointing activist judges.46
Arold's study47 involved three elements: interviews with judges and staff at the Strasbourg Court, eight weeks spent at the Court studying ‘the organisational behaviour and attitudes inside the Court’,48 and a case analysis involving judgments delivered under Articles 8–10 of the Convention between 11 November 1998 and 31 October 2001. The overall purpose of the study was to determine whether three variables49 affected the way judges behave. This study concludes:
My conclusion is this: in the Court, there is a legal culture that successfully overrides the (legal) difference between its member states. The rich diversities that come to the Court create no obstacles to its work....It would seem that, for Arold, the recognition of working with a common legal culture facilitates respect for differences of opinion while also applying a pressure for consensus, and so provides a working environment in which those differences can readily be expressed in separate opinions. The principal determinant of a propensity to write separate opinions is the judge's background, though this is described as having only a small impact.51The Court is thus an example of convergence. The permanent judges adapt to the Court's legal culture. A key element of that legal culture ... is a sense of working together...50
It cannot now be said that the subject of separate opinions is an under-researched aspect of the work of the Strasbourg Court. The work encapsulated above shows some fascinating insights into judicial behaviour, some common themes and some diverging conclusions.
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4. Some Quantitative Outcomes of the Leicester Study |
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TopAbstract1. Context2. The Research Project3. Prior Research4. Some Quantitative Outcomes...5. Our Interviews With...6. Some Reflections |
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A. Some Basic Numbers
Rivière records52 that from its inception until 31 December 1998 there were 908 separate opinions in judgments on the merits which can be categorised as shown in Table 1.
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Our study identifies the following types of judgment and opinion in the Court: 53
- A unanimous judgment of the Court.
- A majority judgment of the Court.
- A dissenting opinion by a single judge.
- A concurring opinion of a single judge.
- A partly dissenting opinion by a single judge.
- A partly dissenting and partly concurring opinion by a single judge.
- A joint dissenting opinion by two or more judges.
- A joint concurring opinion by two or more judges.54
- A joint partly concurring and partly dissenting opinion by two or more judges.
In some cases, a judge might file a partly dissenting opinion of his or her own, and join in a partly concurring opinion put forward by other judges.
One of the features of our quantitative work was the difficulty of counting in the context of the Strasbourg case law. Throughout our consideration of the results of our statistical analysis, we were constantly drawn to the need also to make qualitative judgments in order to avoid presenting distortions from the raw numbers.
Both Bruinsma and Voeten make significant use of separate opinions without drawing sharp distinctions between dissenting and concurring opinions. At one level this approach is justified. Any separate opinion, whether dissenting or concurring, is disagreeing with some aspect of the judgment of the Court. But, in the case of the dissent, the difference of opinion extends to outcome, whereas in the case of the concurring opinion, the disagreement goes only to the reasoning by which the majority reaches its conclusion. While the motivation to write a dissenting opinion is clear, there appears to be less clarity over the motivation to write a concurring opinion. Some judges are less inclined to do so than others.55
Many cases before the Strasbourg Court also involve claims that more than one Convention provision has been violated. Where the Court concludes that there has been a violation of a Convention provision, the issue of just satisfaction may also be under consideration. The dissent or concurring opinion may only extend to one of a number of issues before the Court. As we discovered when interrogating our database, deciding what combinations are significant and how to categorise individual cases is deeply problematic. The nature of the majorities on particular issues can be of very considerable significance. Take, for example, the case of Roche v United Kingdom56 in which the Court decided 9-8 that there was no violation of Article 6(1); 16-1 that there was no violation of Article 1 of Protocol No 1; 17-0 that there was no violation of Article 14; 16-1 that there was no violation of Article 13; 17-0 that there was a violation of Article 8; and 17-0 that there was no violation of Article 10. Simply categorising this as a 9-8 decision of the Grand Chamber misrepresents the levels of agreement and disagreement on the particular issues which arose in the case. Simply counting by reference to issues rather than cases is also problematic, in that many cases have primary and secondary overall issues. To treat them alike and in isolation from the set of circumstances presented to the Court again misrepresents the position. Such considerations led us to approach simple numerical data with some scepticism in drawing conclusions, and forming hypotheses, solely from the numbers drawn from our database. However, some propositions can be put forward in a tentative manner, since one of the purposes of this article is to report some of the quantitative findings drawn from the initial interrogation of the database of cases.
The first surprise is the number of different types of separate opinion which are used by the Strasbourg Court, combined with the frequency with which cases contain separate opinions. The second surprise is the relative infrequency with which the national judge57 is the sole dissenting voice in a case in which a violation of the Convention is found. Most often, where the national judge is a dissenting judge, one or more other judges also dissents.58 We could discern no evidence to suggest that this was the result of coalitions among judges at the Strasbourg Court.
In our data set, 80 percent of cases were non-unanimous in the sense that there was not a single unanimous opinion of all the judges of the Chamber or Grand Chamber hearing the case.59 The incidence of the use of the ability to deliver a separate opinion is high. The position over time is shown in Figure 1.
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The number of non-unanimous judgments has remained fairly constant over the six years of the study ranging from 69.5 percent in 1999 to 84.5 percent in 2001.
We took the view that earlier studies had not focused sufficiently on the incidence of dissenting opinions as a particular type of separate opinion.60
We did extend the Leicester Study to take a closer look at the 166 judgments of the Grand Chamber over the nine year period from 1 January 1999 to 31 December 2007. Of these, just 24 (14.5 percent) were unanimous decisions of the Court on every issue before it with no concurring opinions annexed to the judgment of the Court. However, making some rough and ready judgments on the core issue before the Court could justify concluding that the Court was essentially unanimous on these core issues in 70 cases (42 percent). Since the Grand Chamber is charged with determining serious questions affecting the interpretation of the Convention,61 it is perhaps unsurprising that the use of both concurring and dissenting opinions is much more the norm than the exception in its decision-making. There were dissenting opinions on some aspect of the case before the Grand Chamber in 133 cases (72 percent). Indeed dissents are common in the Grand Chamber. Again using some rough and ready judgments about the core issue in cases before the Grand Chamber, the picture shown in Table 2 emerges in terms of the overall outcome of cases.62
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There were 55 cases (33 percent) where the outcome of the Grand Chamber judgment was that there was no violation of the Convention. This is a higher proportion of cases in which no violation is found than among judgments of Chambers.64
The majority of cases which proceed to judgment result in a finding by the Court of the violation of some provision of the Convention. Very many cases involve complaints of violations of a number of provisions of the Convention. We found that in 90.1 percent of all cases, the Court found a violation of at least one Convention provision, with just 9.9 percent of cases resulting in a conclusion that there had been no violation of the Convention.
The proportion of cases in which no violation of any Convention provision was found has varied over time. In 2001, for example, just eight percent of judgments found that there was no violation, whereas in 1999 and 2004 some 13 percent of judgments found no violation. The pattern over the six years under investigation is set out in Table 3.
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The number of judgments of the Grand Chamber between 1999 and 2007 which found a violation of some Convention provision is 111 (67 percent).
The standout conclusion of our data is that judges of the Strasbourg Court frequently exercise their prerogative to file a separate opinion. Most of these are concurring opinions, but there remains a significant proportion of dissenting opinions.
(i) Dissenting opinions
The task of analysing dissenting opinions was complex. While every dissent represents a difference of opinion as to the outcome of the case, some dissents relate to secondary issues in the case while others represent rather more fundamental disagreement with the reasoning of the Court. This means that a qualitative judgment needs to be added to any quantitative reporting of dissents.
We considered that it might be fruitful to examine in some detail cases where there was a single dissenting opinion. This group of cases refers to those dissenting opinions which are not joined by other judges, but represent a single dissenting voice by one member of the Chamber or Grand Chamber. We were also concerned to examine the incidence of sole dissents by national judges. The starting point was to explore whether national judges were responsible for more single dissenting opinions than other judges in the case. But the frequency with which judges append a single dissenting opinion of their own is in any event not high. We found only 211 such cases in our core dataset. But these included 134 judgments against Italy65 in which there was a virtually identical dissent by the national judge in respect of the Court's omnibus approach to issues relating to the length of proceedings in the Italian courts. If this atypical block of cases is excluded, our dataset consisted of just 77 cases (0.2 percent of the cases in our dataset). Single dissents by national judges are few in number,66 indicating that the Strasbourg Court is not the place where national judges routinely seek to defend the interests of the country in respect of whom they are elected, or serving as an ad hoc judge. Examination of the sole dissents by other than the national judge led us to conclude that there could be no suggestion of proxy voting by Member States in sympathy with the position of the respondent State. If anything, it was judges who scored highly on the judicial activism/judicial restraint scale in Voeten's article67 who were well represented among the sole dissenters in this sample of cases.
Many cases involve judgments on complaints of violations of more than one Convention provision. This presented a difficulty of classification: should we count by reference to findings or by reference to judgments? We decided to count for the purpose of this enquiry by judgment, since this might illustrate most dramatically the cause of the disagreement between the majority and the sole dissenting voice. We have also focused on differences of opinion on the substantive articles of the Convention rather than on the issue of just satisfaction.68
In addition to the 211 single dissenting opinions, we identified:
- 205 joint dissenting opinions
- 146 joint partly dissenting opinions
- 103 single partly dissenting opinions
- three joint partly dissenting and partly concurring opinions.
Such opinions did not all occur in separate cases; combinations of different types of opinions can be found within individual cases.
Voeten reports that 900 of the 6,749 judgments of the Strasbourg Court between 1955 and 30 June 2006 included at least one dissenting opinion.69 These figures are broadly in line with those found in the Leicester Study. So we can say that approximately 25 percent of Strasbourg judgments on the merits are unanimous, 15 percent contain at least one dissenting opinion, and 60 percent contain at least one separate concurring opinion. This means that eighty-five cases out of every hundred are unanimous as to the outcome even if the reasoning for that outcome is not the same in the minds of all the judges.
One of our original objectives was to seek to discern the reasons for dissenting opinions. We looked at the incidence of dissenting opinions by article of the Convention. This again proved to be difficult, because so very many cases involve complaints of the violation of more than one provision of the Convention. In addition, some articles of the Convention attract many more complaints than others. We suspect that it is simply the volume of cases which puts Article 6 at the top of our ‘league table’;70 qualitative consideration of a sample of such cases suggested that dissents in this area tended to relate to technical points of court structure and procedure. When qualitative factors are applied to raw numbers, we concluded that Article 8 generated the highest proportion of dissenting opinions, followed by Article 10 with most other articles some way behind the proportion of dissents in these two fields. But we express this view with caution; the number of cases in respect of some other Convention provisions is so small that raw percentages may have little or no statistical significance.
Members of the team71 read all the dissents under particular Convention articles and came together to suggest hypotheses explaining the dissents in the areas under examination. The outcome was trite. The judgments under particular Convention provisions did not suggest any discernible pattern of disagreement either regionally or by issue. This re-inforces earlier research which had suggested that dissents occurred randomly rather than predictably.72 The random occurrence of dissents is not used in any pejorative sense, but in terms of the predictability of a particular case generating a dissent. Certain types of dissent might be predictable, such as the reluctance of the Turkish judge to acknowledge the liability of the State for certain actions of its security forces, but beyond that observations became more platitudinous. The source of the dissent was a disagreement with the majority born of the open texture of the Convention provision (especially in relation to Article 8), or the scope of the State's margin of appreciation (for example, under Article 10).
(ii) Concurring opinions
While we would not wish to dismiss the significance of separate concurring opinions, their visibility and utility would seem to be less than that of dissenting opinions. While today's dissent might be tomorrow's majority, the glosses on the reasoning of the judgment of the Court to be found in concurring opinions seem to have little attraction for practitioners, and to be the province of the scholar at best. Bruinsma says of both concurring and dissenting opinions:
The minor legal status of separate opinions compared to the majority judgment has prevented lawyers from becoming fully aware of their legitimating potential. Practising lawyers are simply not interested, but even in academic writing separate opinions are disliked: they seem to detract from the authority of the majority judgment.73While we would not completely endorse that proposition, we would acknowledge that the shelf life and impact of a concurring opinion is somewhat less than that of a dissenting opinion. Whereas the lawyer (or academic) looking for arguments to support a change in the Strasbourg Court's approach to a particular issue is likely to trawl through relevant dissenting opinions, that research is almost certainly less likely to extend to concurring opinions. Our reading of a selection of separate concurring opinions highlighted the considerable variations in the length and detail of such opinions. They vary from opinions of only a few lines in length making a brief point to substantial pieces of writing. We were certainly left with the impression that some brief concurring opinions could easily have been omitted with no adverse impact on the quality of the overall decision.74 It remains arguable whether the ability to write concurring opinions renders the decision-making process more efficient. On the one hand, the possibility of the use of a concurring opinion does mean that a majority decision can be reached on the substance without the need to secure agreement on every point by which the conclusion has been reached. On the other hand, additional work is required of the judge who feels the need to qualify the reasoning of the judgment of the Court in a concurring opinion.
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5. Our Interviews With Judges: Voices From The Court |
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TopAbstract1. Context2. The Research Project3. Prior Research4. Some Quantitative Outcomes...5. Our Interviews With...6. Some Reflections |
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In October 2007 the research associate on the project conducted structured interviews with nine judges at the Strasbourg Court.75 This was a self selecting group of judges willing to participate in the interviews, and so cannot be regarded as a representative sample of the Strasbourg judiciary. All but one of the interviews were recorded and transcribed.76 The opportunity was taken to raise questions concerning not only concurring and dissenting opinions, but also on the nature of the Court's role, and the challenges the Court faced in the future. These voices from the Court, though selective, contain important reflections on the work of the Strasbourg Court a decade after the coming into force of the re-structuring of the Convention organs in Protocol No. 11.77
A. The Strasbourg Court as A Constitutional Court
We have taken as axiomatic that the form of judgments is linked to the function of a court, and that a judge's view of the function of a court may well affect the likelihood of writing a separate opinion where that is permitted. We have also noted the increasing recognition of the constitutional functions of the Strasbourg Court.
None of our judges accepted that the Strasbourg Court was a constitutional court in an orthodox sense, since it had no power to invalidate national legislation and its role was solely to determine whether there had been a violation of the Convention. But all accepted that the Court had developed organically from the original international court model into a court whose jurisdiction was compulsory for the Member States, and which made determinations on the application of individuals and States. Though its constitutional function was not of a generalist nature, the Court is charged with the interpretation and application of a constitutional instrument in a specialist field.
B. Judicial Activism and Judicial Restraint
Much prior research into the use of separate opinions, especially in constitutional courts, has been set in the landscape of the debate about judicial activism and judicial restraint. All of our judges were eminently aware of this debate, and hinted at an understanding of where they were perceived to be on the spectrum of activism and restraint. But none liked the use of such labels, principally because they considered that such labels could not universally apply. In some areas, a judge might be activist, and in some areas restrained. This was well articulated by Judge D:
You have to bear in mind that judges have their individual personal mentality. I cannot speak about categories. In one case a judge may appear to be ... conservative and in another case maybe more liberal. They have their own experiences, their own beliefs, convictions etc. Therefore such a line between groups cannot be drawn because ... a conservative judge may be liberal in some cases ... and the other way round [in others].
However, our judges did think that the legal background which judges brought to the Court might influence their approach to the interpretation and application of the Convention, and hence the likelihood of their writing separate opinions. For example, Judge F said:
There are some judges who have a more activist background. Judges who are academics before or judges who belong ... to some other profession were ... more oriented towards a more individualistic or more activist approach. There are judges, particularly those who come from the civil service or the judicial system, maybe not the constitutional court, [but] a regular judicial system that might be ... trained to exercise more restraint.
One theme which emerged from the interviews is that judges tend to think of their role in the context of the totality of their work, which is, of course, dominated by determining questions of admissibility. It is easy to forget, when reading judgments of a Chamber or a Grand Chamber, that this represents only a small proportion of the total workload of a Strasbourg judge.
C. The Value of Concurring and Dissenting Opinions
Our judges were overwhelmingly in favour of the use of concurring and dissenting opinions, because it demonstrated the nuances of human rights protection, promoted debate among the Strasbourg judiciary, indicated that questions of interpretation and application were not always clear-cut, could provide consolation for the losing party who would know that some judges appreciated their position and arguments, and demonstrated openness and transparency.
The motivation to write dissenting opinions was universally stated to be disagreement with the majority as to the outcome. Judge B expressed this sense of obligation very succinctly:
... you believe strongly enough in your view that you feel you have to put it down on paper.
The motivation to write a concurring opinion was less clear, and there are clearly differences of view among the Strasbourg judges as to their necessity in every case. Judge H said:
You have different kinds of separate opinions. You have opinions which are really very individual in the sense that someone insists on writing a separate opinion just to state from an individual angle something which is not important and which, with some self restraint, ... these judges could have avoided in order to strengthen or to give more strength to the majority judgement; and, if this is so, then this is rare but [in those circumstances, I am] not in favour of separate or dissenting opinions. I am in favour of them if they really have to develop in a serious way some new ideas or ... tackle the problem from different angles, but [not] if it is only a kind of individual performance, individual publicity—so not all opinions are of the same character; that is also true.
Our judges’ views of the Articles most likely to generate concurring and dissenting opinions largely coincide with our conclusions from the dataset. While most issues under Articles 2 and 3 are now well settled,78 the interpretation and application of Articles 8 and 10 were seen as likely to generate differences of view.
D. Consequences of the Enlargement of the Council of Europe
We asked our judges to reflect, nearly a decade after the expansion of the Convention countries, on the impact of the accession of a significant number of countries of central and eastern Europe on the Convention system, and whether judges from these countries had brought new thinking to the Court. The responses support Arold's notion of convergence in the Court.79 It was observed that many of the judges from these countries had trained in western Europe or in the United States. But perhaps more significantly there was a commitment to the Strasbourg case law. Judge H said:
I call it an acquis, like you call it in the European Union an acquis communautaire, and here I think it's the acquis of the Court, and I think it depends from person to person but relatively quickly it goes over to everyone, I would say so.
It was, however, acknowledged that accession of these countries had brought new problems to the Strasbourg Court, most notably in the field of the enforcement of national judgments in the national legal orders, and issues relating to property settlements which sought to provide compensation for past expropriations. The collegial nature of the Strasbourg Court seems to be alive and well. This collegial view of the Court is typified in a remark by Judge B:
I always believe that the more multi-cultural the input is, the better the final result, so I am not at all scared in finding that the Council of Europe now embraces many more countries, traditions, values, different values than it did before. I believe that we have all to learn something from each other. I believe that the fact that judges come from more and more different backgrounds enriches the reservoir of the court.
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6. Some Reflections |
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TopAbstract1. Context2. The Research Project3. Prior Research4. Some Quantitative Outcomes...5. Our Interviews With...6. Some Reflections |
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One of the objectives of our project was to see whether simple quantitative analysis of a significant body of Strasbourg case law revealed patterns in its decision-making that were not apparent from a case by case analysis. We have failed to identify any such patterns, though we have highlighted the extent to which separate opinions are a central feature of the decision-making process in the Strasbourg Court. The outcomes might be regarded as something of a disappointment, since they simply tell us what we already knew intuitively: that judges are individuals and that certain provisions of the Convention, notably Article 8, are open-textured and so likely to generate differences of interpretation. Our analysis has involved consideration of almost 30,000 individual judicial votes in just under 4,000 cases in our dataset. Those votes were cast by permanent judges and ad hoc judges. What is striking is how often there is agreement as to result, but also how frequently a judge wishes to add his or her personal voice to the judgment of the Court in the form of a concurring or dissenting opinion.
Both the homogeneity and heterogeneity of the Strasbourg judiciary are features of the system. The case law is evidence of a collegiality, born in part of multi-judge panels determining the merits of cases, but also of the principle of convergence identified by Arold in her study.80 Our key conclusion is that it is judicial temperament which determines the extent to which a judge appends his or her own individual voice to the judgment of the Court in filing concurring or dissenting opinions. Judicial temperament is shaped by a judge's prior experience and by the value set which that judge brings to his or her judicial work. This in turn reflects the pluralism, tolerance and broadmindedness that the Court has repeatedly stated are the characteristics of a democratic society.81 In our estimation it is differential views of the requirements of a democratic society reflecting the value pluralism at the heart of the Convention which accounts for the majority of dissenting opinions.
The approach of the Strasbourg Court is casuistic. If a case is declared admissible, then there will be a determination on the merits regardless of the nature of the issue raised. It may be a highly novel one or it may be simply the application of well-established principles on, for example, the requirement to deliver judgment within a reasonable time. The Court itself in its own database classifies cases according to three levels of importance. As at 11 November 2008, the HUDOC database returns 10,037 judgments in English, of which 1,343 are classified as of Level 1 importance82 and 7,334 are of Level 3 importance.83 Each year the Court delivers more judgments than in the previous year. In the final year of our dataset, there were 718 judgments, but in the three ensuing years there were 1,105, 1,560 and 1,503 judgments respectively. Just a decade ago, there were just over 100 judgments handed down each year. Whereas in 1997, there were 4,700 applications allocated to a decision body, in 2007, there were 41,700 such applications.84 The case for some form of selection of cases for determination on the merits would appear to be overwhelming, but that would require a fundamental rethink to the process of application to the Strasbourg Court, since a system of selection based upon the current volume of applications to the Strasbourg Court simply leaves the Court overwhelmed with the determination of applications. Reform of the system for the adjudication of claims was not, however, within the remit of our research project. But it is remarkable that judges still find time to write dissents and concurring opinions with the frequency with which they occur in such a context.
Separate opinions have been symbolic in the creation of a European human rights discourse because they are personal voices in that discourse which qualify the institutional voice of the Court. Strasbourg judges respect each other's views and despite the workload do not shirk deeply held personal responsibilities to state their views where they disagree as to outcome or reasoning in cases coming before them. Those personal voices are to be welcomed as an antidote to an increasingly formulaic style of judicial reasoning in the judgments of the Court.
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Footnotes |
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1 Loizidou v Turkey (Preliminary Objections) A 310 (1995); 20 EHRR 99 at para. 75.
2 Bosphorus Airways v Ireland 2005-IV; 42 EHRR 1 at para. 156. See also the concurring opinion of Judge Jambrek in Fischer v Austria A 312 (1995); 20 EHRR 349; and the partly dissenting opinion of Judge Martens, joined by Judge Foighel in Ahmet Sadik v Greece 1996-V; 24 EHRR 323.
3 Bruinsma and Parmentier, ‘Interview with Mr Luzius Wildhaber, President of the ECHR’, (2003) 21 Netherlands Quarterly of Human Rights 185 at 185.
4 Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’, (2002) 23 Human Rights Law Journal 161 at 161. See also Wildhaber, ‘Address to Conference on the position of constitutional courts following integration into the European Union’, 30 September 2004, where he describes the Strasbourg Court as having ‘many things in common with the Constitutional Courts of the European continent’. See also Alkema, ‘The European Convention as a constitution and its Court as a constitutional court’, in Mahoney et al. (eds), Protecting Human Rights: The European Perspective. Studies in Memory of Rolv Ryssdal (Cologne/Berlin/Bonn/Munich: Carl Heymans Verlag, 2000) at 41; Schermers, ‘A European Supreme Court’, in Mahoney et al. (eds), Protecting Human Rights: The European Perspective. Studies in Memory of Rolv Ryssdal (Köln: Heymanns 2000) at 1271; and Greer, The European Convention on Human Rights. Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006) especially at 167–92.
5 And overall something like 96–98 per cent of applications fail at the admissibility hurdle. In 2007, the Court disposed of 27,057 applications by a decision on admissibility, and 1,735 by judgment on the merits, of which 17 were by judgment of the Grand Chamber. Of the judgments, 32 were friendly settlements. In addition 13,413 applications were disposed of administratively: Council of Europe, Annual Report 2007 of the European Court of Human Rights (Strasbourg: Council of Europe, 2008) at 134 and 137.
6 The use of the term ‘separate opinions’ in this article refers to both concurring and dissenting opinions.
7 See generally, Schauer, ‘Giving Reasons’ (1994–5) 47 Stanford Law Review 633.
8 Adopting the same approach as that in the International Court of Justice.
9 Contrast, for example, the practice of the European Court of Human Rights with that of the Court of Justice of the European Communities, which delivers a single judgment of the Court.
10 What would be described in the domestic courts of the United Kingdom as a composite judgment.
11 For more detailed comment on the form of judgments in the Strasbourg Court, see White, ‘Judgments in the Strasbourg Court: Some Reflections’, in Andenas and Vogenhauer (eds), A Matter of Style? The Form of Judgments in the United Kingdom and Abroad. Essays in Honour of Lord Bingham of Cornhill (Oxford: Hart Publishing, forthcoming).
12 Article 45(2) ECHR provides that ‘any judge shall be entitled to deliver a separate opinion.’
13 Caflisch, ‘The reform of the European Court of Human Rights: Protocol No 14 and beyond’, (2006) 6 Human Rights Law Review 403.
14 And not by single judges or committees determining such matters. The explanatory memorandum to the Protocol says, ‘This rule recognises the need to develop case-law on the interpretation of the new criterion before the latter can be applied by single-judge formations or committees.’
15 Article 46(1) ECHR provides: ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’ On the system of precedent in the Strasbourg Court, see Wildhaber, ‘Precedent in the European Court of Human Rights’, in Mahoney et al., supra n. 4 at 1529.
16 Referred to in this article as the ‘Leicester Study’.
17 It had been hoped to include the calendar year 2005, but the volume of cases and the high incidence of non-unanimous judgments precluded this.
18 The construction of the database proved to be a bigger task than anticipated because of the many variables which we wished to include in order to be able to interrogate the database with a view to extracting information about judicial behaviour in the Strasbourg Court. The database of all judgments (including friendly settlements and strikings out) was constructed by Dr Iris Boussiakou, as research associate on the project. The database can be found at: https://lra.le.ac.uk/handle/2381/1405 [last accessed 13 November 2008].
19 Tyrer v United Kingdom A 26 (1978); 2 EHRR 1.
21 See: http://echr.coe.int/echr/en/hudoc [last accessed 13 November 2008].
22 Most recently in EB v France 47 EHRR 21 at para. 92, and Saadi v United Kingdom 47 EHRR 17 at para. 55 where the Court said: ‘[The Convention] ... had to be interpreted in a manner which ensured that rights were given a broad construction and that limitations were narrowly construed, in a manner which gave practical and effective protection to human rights, and as a living instrument, in light of present day conditions and in accordance with developments in international law so as to reflect the increasingly high standard being required in the area of the protection of human rights.’ A HUDOC search reveals that the phrase ‘a living instrument’ has been used in 47 cases.
23 See discussion in Mahoney, ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’, (1990) 11 Human Rights Law Journal 57, at 66–8.
27 The most commonly given example is the development of the case law on the gender identity of transsexuals, which culminated in the judgments of the Grand Chamber in Goodwin v United Kingdom 2002-VI; 35 EHRR 447; and I v United Kingdom 2002-VI; 36 EHRR 967.
28 See generally Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Dordrecht: Martinus NIjhoff, 1996); Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2002); McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’, (1999) 62 Modern Law Review 671; and Letsas, ‘Two Concepts of the Margin of Appreciation’, (2006) 26 Oxford Journal of Legal Studies 705.
29 Arai-Takahashi, ibid. at 249.
30 Lasser, Judicial Deliberations. A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford: Oxford University Press, 2004).
32 Bruinsma and de Blois, ‘Rules of Law from Westport to Wladiwostok. Separate Opinions in the European Court of Human Rights’ (1997) 15 Netherlands Quarterly of Human Rights 175.
33 These authors characterise a unanimous decision as one without any separate opinions whether concurring or dissenting, whereas our analysis draws a distinction between cases in which there are concurring opinions and those in which there are dissenting opinions. Where there are only concurring opinions, it is legitimate to view the outcome as unanimous.
34 Bruinsma and de Blois, supra n. 32 at 175.
35 Bruinsma and Parmentier, supra n. 3.
38 Rivière, Les opinions séparées des juges à la cour européenne des droits de l’homme (Brussels: Bruylant, 2004). This work also contains useful reference to the wider literature in French on separate opinions.
39 Which is the main thrust of this work, which almost wholly eschews numerical analysis.
40 Bruinsma, ‘Judicial Identities in the European Court of Human Rights’, in A van Hoek (ed), Multilevel Governance in Enforcement and Adjudication (Antwerp: Intersentia, 2006) at 203. See also Bruinsma, ‘The Room at the Top: Separate Opinions in the Grand Chamber of the ECHR (1998-2006)’, (2008) Ancilla Juris 32.
41 Voeten, ‘The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights’, (2007) 61 International Organization 669.
43 For a study of the appointments process, see Interights, Judicial Independence. Law and Practice of Appointments to the European Court of Human Rights (London: Interights, 2003).
44 Voeten, supra n. 41 at 696, concludes that ‘judges whose previous careers were primarily as diplomats or bureaucrats are significantly less activist than judges with other previous career tracks.’
46 The Copenhagen criteria for membership of the European Union include stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, see: http://europa.eu/scadplus/glossary/accession_criteria_copenhague_en.htm [last accessed 13 November 2008].
47 Arold, The Legal Culture of the European Court of Human Rights (Dordrecht: Martinus Nijhoff, 2007).
49 Historical-political background, vocational background, and geographical-legal background.
52 Rivière, supra n. 38 at 25, n. 113. Rivière does not state the number of cases in which these opinions occurred.
53 In all cases, whether a Chamber or a Grand Chamber.
54 Which is sometimes referred to as a joint separate opinion; we have not discerned any significant difference between opinions which are described as ‘separate opinions’ and ‘concurring opinions’.
55 Former Judge Hedigan is cited by Bruinsma as saying that it is futile to write separate concurring opinions; he is quoted as follows: ‘One agrees with the judgment, that is enough. ... I do feel writing a concurring opinion is rather useless’. See Bruinsma, supra n. 40 at 203.
56 Roche v United Kingdom 2005-X; 42 EHRR 599.
57 Under Article 27(2) ECHR the judge elected, in respect of the Contracting Party against whom the application alleging a violation of the Convention is made, sits as an ex officio member of the Chamber or Grand Chamber which decides the case. If there is no such judge, or that judge is unable to sit, an ad hoc judge is appointed by the Contracting Party who sits as the national judge.
59 This calculation adopts the approach of Bruinsma and Voeten in viewing all separate opinions, whether dissenting or concurring, as representing some disagreement with the judgment of the Court.
60 For further discussion of dissenting opinions, see below.
61 On relinquishment to it by a Chamber under Article 30 ECHR, or on referral under Article 43 ECHR.
62 Rather than separating out issues arising in the cases.
63 Of which 16 might be characterised as sole dissents by the national judge on a significant issue raised in the merits of the case.
64 For an interesting discussion of judgments of the Grand Chamber in which no violation is found, see Mowbray, ‘No Violations But Interesting: A Study of the Strasbourg Court's Jurisprudence in Cases where no Breach of the Convention has been Found’, (2008) 14 European Public Law 237.
65 Delivered in February 2002.
66 Of these 77 cases, 42 can be characterized as sole dissents by the national judge. The dissents number as follows in relation to the national judge: Turkish: 20; Italian: 13; British: 2; Russian: 2; Bulgarian, Cypriot, Greek, Latvian, Slovakian: 1 each. There is some double counting in that there are a number of cases where both a judgment of a Chamber and of the Grand Chamber in the same case are included. One of the Italian cases involved the national judge as the only judge voting in favour of a violation: in Perna v Italy 2003-V; 39 EHRR 563, the Court ruled 17-0 that there had been no violation of Article 6(1), and by 16-1 that there had been no violation of Article 10. Judge Conforti, the Italian judge dissented and considered that there had been a violation of Article 10.
67 See Voeten, supra n. 41 at 686.
68 On which the Court has been criticised for its unstructured approach: see Mowbray, ‘The European Court of Human Rights’ Approach to Just Satisfaction’, [1997] Public Law 647.
69 Voeten, supra n. 41 at 684.
70 Even when attempts are made to look at the data in percentage terms.
71 The authors are grateful for the assistance provided by Dr Murat Tumay in this aspect of our research.
72 Arold, supra n. 47 at 160, following the application of three variables ((a) historical-political background, (b) vocational background, and (c) geographical legal background) to the voting behaviour of judges in cases involving Articles 8, 9 and 10 ECHR.
73 Bruinsma and de Blois, supra n. 32 at 186.
75 Some of the questions put to the judges were inspired by those which had been put by Bruinsma in his interview with Luzius Wildhaber in 2003, and reported in Bruinsma and Parmentier, supra n. 3.
76 For the ninth, the Leicester Study is dependent upon notes taken during the interview by the research associate. The authors are grateful to the judges who participated, and to the President of the Court who facilitated arrangements for Dr Boussiakou's visit to the Court. The interviews took place over a period of four days in October 2007. In order to maximise the frankness of responses, it was agreed that no judge would be quoted by name in any published material.
77 For a discussion exploring the responses of the judges in more detail, see White and Boussiakou, ‘Voices from the Strasbourg Court’, available at: http://ahrclawleicester.blogspot.com/ [last accessed 17 December 2008].
78 With notable exceptions in relation to medical termination of pregnancy, and various forms of euthanasia.
81 See, for example, Gorzelik and Others v Poland 2004-I; 38 EHRR 77 at paras 88–93.
82 Cases making a significant contribution to the development, clarification or modification of the Court's case law.
83 Judgments with little legal interest.
84 Source of all figures: Council of Europe, supra n. 5.
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