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the european court’s developing approach to remedies 177

in view of the Inter-American Court’s highly specialised experience in considering cases of gross and systematic human rights violations. Given the problems experienced by the Committee of Ministers in ensuring the effective implementation of such cases in the European context,150 it is high time that the ECtHR followed the Inter-American Court’s lead in taking a more prescriptive and disaggregated approach as regards measures of redress.

5. Interlaken, Brighton and further interpretations of subsidiarity

How might the current pressures on the Court, and the reform debates, impact upon the issue of remedies? The concept of subsidiarity would certainly be interpreted by some as meaning that the Court should not interfere unduly with issues that are properly the domain of national authorities.151 Interestingly, the criticisms of the Court to the effect that its evolutive interpretation of the Convention has gone too far, have focused on the substantive provisions of the Convention, rather than on the issue of redress.152 In respect of the particular question of remedies, this line of argument might translate into a call for a reduced role for the Court – fewer perceived illegitimate intrusions into the arena of state sovereignty. In the UK, for example, the Commission on a Bill of Rights has expressed its doubts ‘as to whether it is properly the function of an international court of last resort to be entrusted with the task of calculating and awarding just satisfaction’.153

150See, e.g., Committee of Ministers, ‘Execution of the Judgments of the European Court of Human Rights in 154 cases against the Russian Federation Concerning Actions of the Security Forces in the Chechen Republic of the Russian Federation’, Interim Resolution CM/ResDH(2011)292, 2 December 2011.

151See, e.g., D. Raab, Strasbourg in the Dock: Prisoner Voting, Human Rights and the Case for Democracy (London: Civitas, 2011), referring, inter alia, to ‘the scale of judicial legislation and the willingness of the Strasbourg Court to override both the UK courts and Parliament’, at 21.

152See, e.g., M. Bossuyt, ‘It is by ever widening its jurisdiction that the Court of Strasbourg is going too far’, seminar paper given at the ‘Expert Seminar: The Future of the European Court of Human Rights’, Institute for Human Rights, Katholieke Universiteit Leuven, 2 September 2011 (on file with the author). This paper also discusses the increase in interim measures applications.

153Letter from the Commission on a Bill of Rights to Rt. Hon. Nick Clegg MP and Rt. Hon. Kenneth Clarke MP QC, 28 July 2011 – available at: www.justice.gov.uk/downloads/ about/cbr/cbr-court-reform-chairs-letter.pdf. However, the focus of the Commission’s letter was on financial awards, and made no reference to non-monetary relief, as such. Nevertheless, the recommendation is broadly phrased: ‘the Government should ensure

‘to take fully into account its subsidiary role in the interpretation and application of the Convention’. There is no sign, however, that this was code for ‘you have gone too far on redress’. The Interlaken Declaration was clear that subsidiarity means an obligation on states to ‘fully secure’ Convention rights at the national level – and the importance of effective national implementation was reiterated by the Brighton Declaration.154 There is also no suggestion that where states fail to do so, the Court should not be more prescriptive in defining remedial measures. Indeed, the Interlaken Declaration’s call for clarity of the Court’s case law, its invitation to the Court to make ‘maximum use’ of the procedural tools at its disposal and its emphasis on the indispensability of the ‘full, effective and rapid’ execution of Court judgments, would seem to suggest assent to the Court’s developing practice. Furthermore, there was explicit support at Interlaken and at Brighton for the Court’s response to systemic violations through the pilot judgment procedure – the Declarations encouraged the Court in its policy of the prioritisation of cases and identifying structural and systemic problems, and urged states to cooperate with the Committee of Ministers in relation to pilot judgments, by adopting and implementing general measures aimed at remedying the structural problems.155

6.Conclusion

This chapter has sought to analyse the significant developments in the Court’s provision of non-monetary remedies in recent years. Although past declaratory judgments have often been implemented, in the sense that they have led to changes in domestic law or practice, the increasing number of systemic problems across the continent which have not been resolved, combined with the backlog of cases, has spurred the Court on to take a more creative and incisive approach (in the realm of both individual and general measures).

that a programme of fundamental reform addresses the need to revisit the meaning and effect of Article 41 of the Convention and the role of the Court in awarding “just satisfaction”’. See also Report of the Group of Wise Persons to the Committee of Ministers, CM(2006)203, 15 November 2006, paras. 94–9.

154CoE, High Level Conference on the Future of the European Court of Human Rights – Brighton Declaration, 20 April 2012, paras. 7–9. Available at www.coe.int/en/20120419- brighton-declaration/.

155See also Report of the Group of Wise Persons to the Committee of Ministers, paras. 100–5.

situations, at least) a means of improving the dialogue between the Court and national authorities, especially the national courts.157

When we contemplate the adequacy of the Court’s position on redress, it should not be forgotten that the role of an international court is to rule on human rights violations which have been committed by the state (as opposed to a private individual). We should also remember that human rights violations are not just committed against individuals, but also represent breaches of the wider social order. In this broader context, the provision of redress accordingly serves the additional, and vital, functions of upholding the public interest and the rule of law.

157See, e.g., Leach et al., Responding to Systemic Violations’, 73–4; J. Gerards, ‘The Pilot Judgment Procedure before the European Court of Human Rights as an Instrument for Dialogue’, in M. Claes and P. Popelier (eds.), Constitutional Conversations in Europe: Actors, Topics and Procedures (Antwerp, Oxford, Portland: Intersentia, forthcoming) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1924806.

Stone Sweet and Helen Keller have said, ‘courts have taken the lead in incorporating the Convention’.4

In this chapter we look at the implementation of the Convention in national law in Belgium, the Czech Republic, France, Germany, Norway, Russia and the United Kingdom (UK). In all of these jurisdictions there has been considerable change over the last 10–15 years. Two examples, one from UK law and one from Norwegian law, go a long way in bearing this out.

In Cadder v. Her Majesty’s Advocate, the UK Supreme Court in October 2010 overturned Scottish case law on whether a person detained by the police on suspicion of having committed an offence has, prior to being interviewed, the right of access to a solicitor. The stakes of the case were not trifling were the Supreme Court to find that there was a breach of Convention rights. More than 76,000 cases would potentially be affected, and the rule in breach of the Convention was a long-standing rule of Scots law. The Court, adopting the opinion of Lord Hope, said that the issue ‘must be faced up to, whatever the consequences’.5 The Supreme Court was not convinced by the legal argument of the government; it would be untenable if the solution in the UK should be different from that of the other member states. Such a solution, said Lord Hope on behalf of a unanimous Supreme Court, would be entirely out of keeping with the Strasbourg court’s approach to problems posed by the Convention, which is to provide principled solutions that are universally applicable in all the contracting states. It aims to achieve a harmonious application of standards of protection throughout the Council of Europe area, not one dictated by national choices and preferences. There is no room in its jurisprudence for, as it were, one rule for the countries in Eastern Europe, such as Turkey, on the one hand, and those on its Western fringes, such as Scotland, on the other.6

Later Lord Hope summarised the Supreme Court’s approach in Cadder in the following way: ‘Pride in our own system is one thing; isolationism is quite another.’7 A ruling in a similar case was handed

4A. Stone Sweet, ‘Assessing the Impact of the ECHR on National Legal Systems’, in A. Stone Sweet (ed.), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press, 2007) 677–712, at 687 (hereinafter Stone Sweet, ‘Assessing the Impact’).

5Cadder v. Her Majesty’s Advocate [2010] UKSC 43; [2010] WLR 268 at 4.

6Ibid., at 40.

7Lord Hope, ‘Scots Law seen from South of the Border’, www.supremecourt.gov.uk/docs/ speech_110401.pdf.

down by the Norwegian Supreme Court in the same month as the UK Supreme Court handed down its ruling in Cadder. The Norwegian case bore on the reopening of old criminal cases in which the process had been in breach of international human rights.8 The Norwegian Supreme Court, unanimously adopting the closely argued opinion of Justice Gjølstad, held that the international human rights obligations required reopening, with potentially several thousand more cases to be reopened. It is clear that the Norwegian Supreme Court does not see itself in a bilateral relationship with the international human rights organs. The arguments of the government attorneys, that one ought instead to opt for Norwegian exceptionalism, were thus roundly rejected. In the face of high stakes, the Norwegian Supreme Court’s exemplary ruling chose instead to take seriously the universal exigencies which apply to national judges when they are adjudicating on human rights issues.

Lord Hope and Justice Gjølstad focus in their opinions on the universality of solutions adopted by national courts. Armin von Bogdandy, in his criticism of the Lissabon-Urteil of the German Federal Constitutional Court,9 makes the point that the formation of European law is not only the task of politics, but equally that of lawyers, who, in their work, not only have recourse to law, but develop it.10 It is no surprise that the Lissabon-Urteil by the Federal Constitutional Court was read with no small interest in courts all over Europe. German arguments in favour of ‘selbstherrlicher Isolierung’ over a ‘kooperativen Verbund mit den Völkern Europas’ would be in demand from those wishing to close the national political and legal systems.

The relationship between Russian law and the Convention has raised questions similar to those addressed by the German Federal Constitutional Court.11 In the wake of the Lissabon-Urteil, the President of the Russian Constitutional Court, Valery Zorkin, criticised several of the

8Decision HR-2010-01703-S, 12 October 2010.

9BVerfG, NJW 2009, 2267 – Lissabon-Urteil.

10A. von Bogdandy, ‘Prinzipien der Rechtsfortbildung im Europäischen Rechtsraum: Überlegungen zum Lissabon-Urteil des BVerfGE’, Neue Juristische Wochenzeitung 63:1 (2010) 1–5, at 1–2. G. de Búrca and J.H.H. Weiler, ‘Introduction’ in G. de Búrca and J.H.H. Weiler (eds.), The Worlds of European Constitutionalism (Cambridge University Press, 2012) 1–8, point to the role of EU law in mediating between different legal orders in their critical assessment of the discourse on ‘constitutional pluralism’.

11M. Andenas et al., ‘The Federal Russian Law on Foreign Treaties’, in R. Mullerson et al.

(eds.), Constitutional Reform and International Law in Central and Eastern Europe (The Hague: Kluwer Law International, 1998) 259–65.

judgments against Russia by the European Court of Human Rights in public speeches.12 He singled out the complaint made by the Russian opposition about the course of the parliamentary elections held in 2003 (criticised by OSCE observers) and the Strasbourg Court’s decision in favour of the Russian military, who were striving for three years’ paid child care leave for single parents (in Russia only women are granted this right). The Strasbourg Court had been subject to political and press criticism, and the president may also be seen as warning it about consequences of further adverse findings against Russia in the then ongoing cases concerning Mikhail Khodorkovsky’s detention and despoilment (Yukos v. Russia,13 and the case regarding the Katyn massacre (Wołk- Jezierska v. Russia).14

The Czech Constitutional Court provides another aspect of the issue. While looking at German law, the Czech court did not follow the German approach but, rather, criticised it. Challenges to the parliamentary ratification of the EU Treaty of Lisbon made the Czech Republic one of the final member states to ratify this Treaty. The Czech Constitutional Court refused to establish the clear limitations on transfers of powers that the German court had done. ‘[T]he Constitutional Court does not consider it possible, in view of the position that it holds in the constitutional system of the Czech Republic, to create such a catalogue of nontransferrable powers and authoritatively determine “substantive limits to the transfer of powers”, as the petitioners request’. It points out that it already stated, in judgment Pl. ÚS 19/08, that ‘These limits should be left primarily to the legislature to specify, because this is a priori a political question, which provides the legislature wide discretion’. Responsibility for these political decisions cannot be transferred to the Constitutional Court; it can review them only at the point when they have actually been made on the political level.

For the same reasons, the Constitutional Court does not feel authorised to formulate in advance, in an abstract context, what is the precise content of Article 1(1) of the Constitution, as requested by the petitioners, supported by the president, who welcomes the attempt ‘in a final list

12Notably in a widely reported intervention in St. Petersburg, 18 November 2010, at the International Forum of Constitutional Justice.

13ECtHR, OAO Neftyanaya Kompaniya Yukos v. Russia (Appl. No. 14902/04), Judgment (First Section), 20 September 2011, not reported.

14ECtHR, Witomila Wołk-Jezierska and Others v. Russia (Appl. Nos. 55508/07 and 29520/ 09), Judgment (Fifth Section), 16 April 2012, not reported.

to define the elements of the “material core” of the constitutional order, or more precisely, of a sovereign democratic state governed by the rule of law’, and states (in agreement with the petitioners) that this could ‘limit future self-serving definition of these elements based on cases being adjudicated at the time’.15

The next subsection of the judgment (IV.C.) has the heading: ‘Limiting the Possibility of Unconstitutional Abuse of the Proceeding pursuant to article 87(2) of the Constitution and Permissibility of Supplementing the Petition’ and contains a robust reply to the president and senators, who used the constitutional review procedure to delay the ratification. Under the heading ‘Democracy in the European Union’, the Czech court expressly addressed the German Lissabon-Urteil.16 It is a mistake to claim that ‘representative democracy can exist only within states, within sovereign subjects’. To further refute the German court’s decision, the Czech court cited Advocate-General Maduro of the European Court of Justice:

European democracy also involves a delicate balance between national and European dimensions of democracy, without one necessarily outweighing the other.17

How best to make sense of these developments in the implementation of European exigencies and more specifically, the ECHR, in national law? It is clear that the implementation by national courts of the ECHR may be measured in different ways. One way is to look at the defining features of the ECHR regime and then see how the national systems relate to these defining features. What, then, are the defining precepts of the ECHR? The defining features of the regime set up by the Convention have been summarised as ‘an evolutive approach based upon [the Court’s] understanding of the object and purpose of the Convention, but also reflective of its own role as an international human rights court conscious of its subsidiary role in the protection of human rights’.18

15 Decision, 3 November 2009, at paras. 111–12. See M. Hofmann, ‘Zum Zweiten “Lissabon-Urteil” des Tschechischen Verfassungsgerichts’, Europäische Grundrechtzeitschrift 37:5–6 (2010) 153–6, 153.

16Decision of 3 November 2009, at subsection V.C. of the judgment, see in particular at para. 280.

17Ibid., at para. 138. The court cites a longer passage from the Opinion of Advocate General Maduro in C–411/06 Commission v. Parliament and Council [2009] ECR I–7585, note 5.

18R. White, Jacobs, White & Ovey: The European Convention on Human Rights, 5th edn (Oxford University Press, 2010), at 81.

On the one hand, reflecting the object and purpose of the Convention, there is the doctrine of evolutive interpretation, according to which the Court will ‘ensure that the interpretation of the Convention reflects societal change and remains in line with present-day conditions’.19 Lucius Wildhaber has described this as ‘one of the best known principles of Strasbourg case-law’.20 This feature of the Convention schema pulls graphically in the direction of unity and coherence; the evolution of the Convention rights leads to heightened rights protection applicable in all the member states.21

On the other hand, reflecting the subsidiary and supranational role of the Court is the doctrine of the margin of appreciation,22 according to which the state authorities will in some cases be accorded a measure of deference in determining particularly, but not only, whether interference with a protected right was ‘necessary in a democratic society’.23 Margins of appreciation are closely connected with standards of review, and the determination of the reach of, and the justified restrictions on, substantive rights at the other end of the filters of margins and standards. In the following, we focus on the national margin of appreciation. This doctrine of the national margin of appreciation has been developed by the Court itself, as a tool in the relationship between the domestic authorities and the Court. The margin of appreciation is only one aspect of this relationship.24

Jean-Paul Costa has pointed out the importance of the margin of appreciation in ECHR adjudication, but also warned against taking this further at the national level in a way that could lead to municipal authorities following double or triple standards:

(eds.), Human Rights Protection in the European Legal Order: Interaction between European Courts and National Courts (Cambridge: Intersentia, 2011) 97–143, at 102–20.