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

Such an ‘attitude décomplexée’,72 according to which the ECHR is subject to overt dynamic interpretation, led the Conseil d’État onto a trajectory of constructive interpretation of the ECHR. Thus, the Conseil not only refuses to have its eyes opened by the Strasbourg Court; it seems plainly to be wide awake, adverting of its own volition to the ‘interpretative dynamism’ of the European system.73

The Conseil d’État has continued in the same vein, opening up its jurisprudence to the principles of the ECHR in a way which is perhaps as enriching to the ECHR as to French law. In the recent ruling in Association pour la promotion de l’image, the Conseil d’État, with support in article 8 on the right to privacy and article 2 of Protocol 4 on the freedom of movement, the open approach of the Conseil d’État to the Convention rights was on full display.74 The Conseil was asked whether a decree regulating the use of and storage of data from biometric passports was lawful. One of the stipulations of the decree was that eight fingerprints were stored by the authorities, while only two were needed for the passport. In a carefully reasoned judgment, the Conseil d’État held that parts of the decree were unlawful, clearly basing itself on Convention principle, as well as legal precepts flowing from national law.75 There was plainly no judgment from the Court which settled the matter. This, however, did not deter the Conseil d’État from simply applying the principles animating articles 8 and 2 of Protocol 4.

Much the same has been the case in Norwegian law over the last few years. In the 1990s, the Norwegian Supreme Court made an important

decisions Marie and Remli, seems to us to avert that the Strasbourg Court find any breach on the part of France. The two different systems of control – yours and that of the European Court – do not correspond completely. Taking into account the European jurisprudence to a certain measure leads you to go beyond what the Court requires in the scope of its control a posteriori and in concreto. … To refuse to overturn the decisions which are attacked today would be tantamount to accept to close one’s eyes and wait for Strasbourg to open them for one. This is not the conception we have of your office. … By enlarging the ambit of judicial review, moreover, you would give full effect to the subsidiary character of the control of the European Court, taking charge of giving full effect before national authorities to Convention rights.’

72F. Sudre, ‘Du “Dialogue Des Juges” à l’Euro-Compatibilité’, Le Dialogue Des Juges: Mélanges en l’Honneur du Président Bruno Genevois (Paris: Dalloz 2009) 1015–31, at 1028 (hereinafter Sudre, ‘Dialogue des Juges’).

73Ibid.

74Conseil d’État, Association Pour la Promotion de l’Image et Autres, 26 October 2011, No. 317827 and others.

75For example, the decision seems to develop the proportionality test relied on in the classic ruling Benjamin: Conseil d’État, 19 May 1933, Benjamin, No. 17413.

statement of principle in the Corrugated Cardboard case.76 Concerning illegal price-fixing and ECHR rights, this case allowed the Norwegian Supreme Court to consider in detail the issue of Norwegian and international law. The Court held that when considering relevant human rights provisions, ‘[f]or a Norwegian court to be justified in setting aside the effects of national rules of procedure, the differing rule which can be based on international law sources must appear sufficiently clear and unequivocal to permit such a decision’.77

Imposing a special requirement of ‘clarity’ on the international law rule to be used, this doctrine underscored that in deciding whether a ruling by an international court should be given precedence in national law, it was of importance whether it was based on a situation factually and legally comparable to the situation in which the Norwegian court was to decide. The doctrine was seen as a signal to lower courts that they need not immerse themselves in what was regarded as vast and sometimes complex international sources when the ECHR was invoked by legal counsel.

At the same time, looming in the background was a question of more farreaching scope: should the Norwegian Supreme Court play an active role in the development of Convention rights? For it is precisely in the penumbral areas – where the law is not clear and unequivocal – that national supreme courts may have a hand in the development of ECHR law.78 Although criticised in legal doctrine, and by the minority in Rt. 1999 p. 961, as falling short of the wording of the statute incorporating the Convention into Norwegian law, this doctrine survived through the 1990s.79

Corrugated Cardboard was overturned by the Bøhler case.80 The Supreme Court in Bøhler was at pains to go into considerable detail on the question of the relationship between Norwegian and international law, with the question of the evolution of the ECHR and national courts looming large.

76Norwegian Supreme Court Judgment (Corrugated Cardboard), see (1994) Norsk Retstidende 610 (in Norwegian: Bølgepappkjennelsen).

77Ibid., at 616–17.

78C. Smith, ‘The Interaction between the European Convention and the Protection of Human Rights and Fundamental Freedoms within the Norwegian Legal System’, in P. Mahoney et al. (eds.), Protecting Human Rights: The European Perspective (Cologne: Carl Heymanns Verlag, 2000), at 1306–7 (hereinafter Smith, ‘Interaction’).

79Norwegian Supreme Court Judgment, see (1999) Norsk Retstidende 961.

80Norwegian Supreme Court Judgment, see (2000) Norsk Retstidende 996 (in Norwegian:

Bøhlerdommen).

First, in unambiguous terms the judgment set aside the ‘clear and unequivocal’ reservation. There was no longer any need for the rule following from the ECHR to be ‘clear’ for it to take precedence over Norwegian law.81 The Supreme Court held that the question whether there was a conflict between a provision in an incorporated convention and other parts of Norwegian law was not amenable to answer by reference to general principles; it depends on interpretation of the applicable provisions in the circumstances. Having recourse to the newly adopted Human Rights Act 1999 section 3, which seemed to influence the Court considerably, it held that where the solution following from the ECHR appears reasonably clear, it is incumbent on Norwegian courts to give precedence to the ECHR provision, even though this would mean the overturning of well-established Norwegian legislation or practice. The Court later underscored that one ought not to take what it said in Bøhler about clarity to mean that some sort of reservation with regard to clarity still obtained; this would be a misconstruction.82 At times, however, there may be well-founded doubt as to how the ECHR is to be understood. This doubt, the Norwegian Supreme Court said, could stem from the evolutive interpretation of the Convention by the Strasbourg Court.

Although Norwegian courts expressly intend to use the same method of interpretation as the Strasbourg Court, the Supreme Court held that it is primarily for the Strasbourg Court to develop the Convention. The Supreme Court underscored that if doubt obtains as to the impact of the judgments of the Strasbourg Court, it is important whether the decision in question is based on a situation factually and legally comparable to the situation in which the Norwegian court is to decide. To the extent that Norwegian courts have to engage in balancing of various interests, they should also take account of traditional Norwegian priorities, and all the more so if the Norwegian legislature has considered the relationship to the Convention and found no conflict between Norwegian and ECHR law.83

In the view of the Supreme Court in Bøhler, Norwegian courts do not have the same panoramic view as the Strasbourg Court, not possessing the same knowledge of the ECHR and relevant sources, including case

81T. Eckhoff, Rettskildelære (Oslo: Universitetsforlaget, 2001), at 330–2.

82See, for example, Rt. 2001 p. 1006 KRL (2001) Norsk Retstidende 1006.

83E. Møse, ‘Norway’, in R. Blackburn et al. (eds.), Fundamental Rights in Europe: The European Convention on Human Rights and its Member States, 1950–2000 (Oxford University Press, 2001), at 636–7 (hereinafter Møse, ‘Norway’).

law of other member states. Norwegian courts, in going about to balance different interests, may draw especially on priorities and traditions underpinning Norwegian law. In this way, they will be able to engage in reciprocal dialogue with the Strasbourg Court, contributing to the development of the Convention rights. An evolutive approach to the ECHR on the part of Norwegian courts, said the Court in its 2000 ruling, would run the risk of Norwegian courts going too far. They could grant further human rights protection than the ECHR requires, the result of which would be interfering with the balance between the legislature and the judiciary, and engendering unnecessary limitations on legislative powers. Norwegian courts, the Supreme Court concluded, should not interpret the Convention evolutively where there may be doubt as to the interpretation of the ECHR.84

The main purport of this doctrine is that the principles of ECHR construction are not the same in Norwegian courts as in other courts, insofar as the former take on a special Norwegian character. This stance was then reiterated in, among others, Rt. 2003 p. 35985 and Rt. 2005 p. 833.86 Of the different trajectories a national Supreme Court may follow with respect to the evolution of the Convention, the approach of the Norwegian Supreme Court seems to fit well into the category former Supreme Court President Carsten Smith referred to as the ‘enforcement approach’, ‘passively receiving’ as opposed to ‘actively contributing’ to the evolution of the ECHR.87

The Norwegian Supreme Court in Rt. 2002 p. 557,88 sitting in plenary session, held (8–5) that to bring charges for tax evasion against someone who had already suffered additional taxes over the evasion would run counter to the non bis in idem principle as set out in article 4 Protocol 7 ECHR. Although the majority quoted Bøhler emphasising that it was not for national courts to develop the Convention, it is plain that the court did just that.89

The same seems to hold true for Rt. 2008 p. 1409.90 The question before the Supreme Court, sitting in plenary session, was whether one

84Ibid., at 637.

85Norwegian Supreme Court Judgment, see (2003) Norsk Retstidende 359.

86Norwegian Supreme Court Judgment, see (2005) Norsk Retstidende 833.

87Smith, ‘Interaction’, at 1307.

88Norwegian Supreme Court Judgment, see (2002) Norsk Retstidende 557.

89J.E.A. Skoghøy, ‘Norske domstolers lovkontroll i forhold til inkorporerte menneskerettskonvensjoner’, Lov og Rett 41:06 (2002) 337–54, at 351–2.

90Norwegian Supreme Court Judgment, see (2008) Norsk Retstidende 1409.

can deduce a standard of proof from article 6(2) ECHR. This had not been set out clearly in the jurisprudence of the Strasbourg Court. Both the majority and the minority of the Norwegian Supreme Court pointed out that it is for the Strasbourg Court to develop the Convention, the minority adding that the Bøhler reticence would be particularly warranted in a case raising as many difficult questions about the standards of the ECHR as did Rt. 2002 p. 557. The majority, however, held by six votes that article 6(2) ECHR does lay down a standard of proof, and by the same token seemed not to shy away from evolutive interpretation of the Convention where there may be doubt as to the correct interpretation of the ECHR.

In judgments Rt. 2002 p. 557 and Rt. 2008 p. 1409, the Norwegian Supreme Court set aside the Bøhler doctrine, opening up for changes in its case law. From having been a lock on Norwegian conventional obligations, ‘Norwegian values’ have been turned into a conduit for a positive contribution by the Norwegian Supreme Court to the development of human rights protection.91 In Rt. 2008 p. 1764, the Supreme Court was faced with the question whether the Norwegian system of unreasoned decisions to appeal for re-hearing was in conformity with article 14(5) of the International Convention on Civil and Political Rights (ICCPR), which provides that: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’ What prompted this case was that the UN Human Rights Committee had found against Norway on this question in its Communication No. 1542/2007, holding that the failure of the Norwegian rule to guarantee reasoned decisions to appeal for re-hearing was in breach of the ICCPR. In reaching its conclusion, the Supreme Court in Rt. 2008 p. 1764 underscored that the right to reasons in general was a principle with a long pedigree in Norwegian law. By doing this, the Supreme Court effectively held that the guarantees flowing from Norwegian law pulled in the same direction as those of the international human rights system.92

This approach was then strengthened in Rt. 2009 p. 1118, where the Supreme Court was faced with the question of how the question in Rt. 2008 p. 1764 would play out with respect to civil as opposed to criminal cases. Was Norwegian law in breach of the due process guarantees in

91See M. Andenas and A.M. Kravik, ‘Norske Verdier og EMK’, Lov og Rett 49:10 (2010) 579–99 (hereinafter Andenas and Kravik, ‘Norske Verdier’).

92Ibid., at 590.

article 88 of the Norwegian Constitution, article 6 of the ECHR and article 14(1) of the ICCPR? Justice Bårdsen, for the majority, referred at the outset to Rt. 2008 p. 1764; when the Supreme Court had said that there was a right to reasons in criminal cases, it stood to reason that it must have been the will of the legislator that the same should apply in civil cases.93 Furthermore, said Justice Bårdsen, this would harmonise with the ‘purpose and system’ of the law at issue. It is plain that Justice Bårdsen’s majority opinion must be seen in relation to Rt. 2008 p. 1764, where the Supreme Court had based its decision on international human rights standards. What was new in Rt. 2009 p. 1118, however, was that the Supreme Court established the right by building on national rather than international sources. This shows the interplay between national and international sources in the jurisprudence of the Norwegian Supreme Court. This normative adjustment of the national law paves the way for development of Convention rights on the back of national sources.

Summing up, it is clear what was said in Bøhler about Norwegian values as putting a stop on the effect of Convention rights in Norwegian law has not developed into a lock on human rights obligations. This would have been a potentially dangerous approach. The Supreme Court has, rather, turned things around and made out of the Bøhler dictum an avenue for positive contributions to the heightening of rights protection, both within the context of ECHR rights and ICCPR rights.

Turning to the Czech and Russian decisions we discuss elsewhere in this chapter, they differ in method and on many other points from one another. But they share a central feature, in that there is no distinction between the domestic sources and the European sources. Both the discussion of the reach of rights and of the legality and proportionality of restrictions combine the sources, merging arguments based on decisions of the Court with arguments from domestic sources. In this respect, the two jurisdictions stand out from the others we have discussed. Most other jurisdictions will operate with spheres of purely domestic rights, and will address the issue of how European rights take effect in the national system in different ways. In particular, the more extensive reasons of the Czech Constitutional Court are accessible to readers from other jurisdictions, and repay study. We will return to this point in different contexts below.

93I. Lorange Backer, ‘Begrunnelse for Avsiling av en Sivil Ankesak’, Lov og Rett 48:8 (2009) 49–51, at 48, is critical of the judgment.

Another example, closely related to Lady Hale’s point and to the Czech and Russian approach, is the development of rights in the common law, particularly the contribution to the development of rights by way of ‘common law rights’, nationally derived rights which strengthen the development of Convention rights. Examples of this can be found particularly in some of the leading judgments of Lord Bingham, who, on numerous occasions, brought out the relationship between national and international rights, ‘melding’, to quote the felicitous phrase of Philippe Sands, ‘the relationship between long-established principles of common law with the more recent obligations of European and international laws’.94 In Van Colle and Smith,95 Lord Bingham set out the case for developing the common law action for negligence in the light of the case law of the Strasbourg Court.96 Considerable argument was devoted to exploration of the relationship between rights arising under the Convention, in particular article 2, and rights and duties arising at common law. The question was: should these two regimes remain entirely separate, or should the common law be developed to absorb Convention rights? Lord Bingham said:

I do not think that there is a simple, universally applicable answer. It seems to me clear, on the one hand, that the existence of a Convention right cannot call for instant manufacture of a corresponding common law right where none exists…. On the other hand, one would ordinarily be surprised if conduct which violated a fundamental right or freedom of the individual did not find a reflection in a body of law ordinarily as sensitive to human needs as the common law, and it is demonstrable that the common law in some areas has evolved in a direction signalled by the Convention.97

Lord Bingham concluded that there was a strong case for developing the common law action for negligence in the light of Convention rights; where a common law duty covers the same ground as a Convention right, it should develop in harmony with it. Parallel issues arose in JD v. East

94P. Sands, ‘Lord Bingham of Cornhill Obituary’, The Guardian, 11 September 2010.

95Chief Constable of the Hertfordshire Police (Original Appellant and Cross-respondent) v. Van Colle (administrator of the estate of GC (deceased) and another (Original Respondents and Cross-appellants) and Smith (FC) (Respondent) v. Chief Constable of Sussex Police (Appellant) (Van Colle and Smith) [2008] UKHL 50, para. 58.

96See M. Andenas et al.,‘“There is A World Elsewhere”: Lord Bingham and Comparative Law’, in M. Andenas et al. (eds.), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford University Press, 2009) (hereinafter Andenas et al., ‘A World Elsewhere’).

97Van Colle and Smith, para. 58.

Berkshire.98 Should the law of tort evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems, or should it remain essentially static, making only such changes as are forced upon it, leaving difficult and, in human terms, very important problems, to be swept up by the Convention? Lord Bingham’s reply was terse: ‘I prefer evolution.’99

While Lord Chief Justice, before the incorporation into UK law of the Convention, Lord Bingham told the House of Commons that: ‘British judges have a significant contribution to make in the development of the law of human rights. It is a contribution which so far we have not been permitted to make.’100 He went on to quote Milton’s Areopagitica:

I hope that incorporation will restore the belief of our people, once an article of faith, that human rights and fundamental freedoms flourish as luxuriantly here as anywhere else in the world. It is after all 350 years since Milton wrote in Areopagitica, ‘Let not England forget her precedence of teaching nations how to live.’101

Addressing the criticism that national courts ought to show restraint in this regard, Lady Hale has said that the criticism that national courts may not interpret the Convention evolutively does not make much sense. ‘We cannot commit other Member States or the European Court of Human Rights to our interpretation of the rights – so why should they mind what we do, as long as we do at least keep pace with the rights as they develop over time?’102

The Belgian Constitutional Court103 has developed an interesting jurisprudence on article 53 of the Convention, entitled ‘Safeguard for existing human rights’, which provides that:

Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.104

101Ibid., col. 1246.

102Lady Hale, Speech at the Salford Human Rights Conference 2010, 4 July 2010.

103The Cour d’Arbitrage changed its name on 7 May 2007 to Cour constitutionnelle, and we use the English version of the latter title throughout.

104The same is expressed in article 5(2) of the United Nations International Covenant on Civil and Political Rights (ICCPR), which provides that: ‘There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in

In decision 159/2004 the Constitutional Court105 had been asked to hold unconstitutional the law of 13 February 2003 which had legalised same-sex marriage. The claimants averred that the law was in breach of article 12 of the European Convention, together with article 23 of the ICCPR, read in conjunction with articles 10–11 of the Belgian Constitution. Article 10(3) of the Belgian Constitution says that: ‘[l]’égalité des femmes et des hommes est garantie’; article 11bis(1) provides that: ‘La loi, le décret ou la règle visée à l’article 134 garantissent aux femmes et aux hommes l’égal exercise de leurs droits et libertés, et favorisent notamment leur égal accès aux mandats électifs et publics’. The claimants argued that the effect of these constitutional provisions was that there was in Belgian constitutional law a principle of the ‘dualité sexuelle fondamentale du genre humain’.106

This the Belgian Constitutional Court rejected. The argument of the court was the following:

Dans l’interprétation des dispositions conventionnelles citées au moyen, il doit être tenu compte de l’article 53 de la Convention européenne des droits de l’homme et de l’article 5.2 du Pacte international relatif aux droits civils et politiques. … Il résulte des dispositions citées au B.6.3 [article 53 ECHR and article 5(2) ICCPR] que l’article 12 de la Convention européenne des droits de l’homme et l’article 23.2 du Pacte international relatif aux droits civils et politiques ne peuvent être interprétés en ce sens qu’ils empêcheraient des Etats qui sont parties aux conventions précitées d’accorder le droit garanti par ces dispositions aux personnes qui souhaitent exercer ce droit avec des personnes de même sexe.107

It is clear that the Belgian Constitutional Court would not be influenced by the fact that the Strasbourg Court had not held that article 12 of the Convention, in conjunction with article 14, gave the right to same-sex marriage.108 Instead, it took article 53 seriously, and the notion of domestication of rights protection, holding that it was free to go further than the Strasbourg Court on the question in issue. The Belgian Constitutional Court has done the same in other cases, too. In three cases regarding the principle of legality, the Belgian court went further in its

any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.’

105 Decision 159/2004, 20 October 2004.

107Ibid., para. 6.1–6.4.

108In fact, as at 2011, the Strasbourg Court still has not done this. In its controversial decision, Schalk and Kopf v. Austria (Appl. No. 30141/04), Judgment (Second Section), 24 June 2010, Reports 2010, it held that there was no right to same-sex marriage under the Convention.

rights protection than the Strasbourg Court had done, again explicitly founding its approach on article 53.109

The Norwegian Supreme Court has taken the same approach. In a ruling handed down on 26 January 2011,110 it was faced with questions relating to the right to evidence by child witnesses in court, which is found both in Norwegian due process guarantees and in article 6(3)(d) ECHR. Delivering the judgment of the court, Justice ie held that:

When a procedural right follows from the ECHR, and not from internal Norwegian provisions, the question arises whether limitations to the Convention right, as interpreted by the Strasbourg Court, must apply in Norwegian law as well. As is clear from what I have cited from [earlier Norwegian jurisprudence on the issue] on the implementation of the right to the questioning of child witnesses, the Supreme Court adverts only to article 6(3)(d) ECHR, and not to Norwegian provisions. There is, however, a principle granting the right to contradiction in Norwegian law too. In my view it is therefore not reasonable to see the right to the questioning of children as anchored in the Convention, as interpreted by the Strasbourg Court, alone; it has rather been established in interplay between Norwegian law and international human rights.111

However, there have also been instances at which UK courts have chosen approaches to the Convention which have been less focused on universal solutions. It is plain, as Alec Stone Sweet and Helen Keller have put it in a more general context, that sometimes it happens that national courts ‘decide to ignore the [Strasbourg] Court’s interpretation of the Convention even when on point, and even where Convention rights have been domesticated through incorporation’.112

The Court of Appeal of England and Wales in Faizovas113 was faced with the question whether it was a violation of article 3 of the Convention

109See Decisions 202/2004, 21 December 2004, para. 5.4; 131/2005, 19 July 2005, para. 5.2; 151/2006, 18 October 2006, para. 5.6. We thank Conseiller d’État Pierre Vandernoot for bringing these cases to our attention.

110Decision HR-2011-00182-A, 26 January 2011.

111Ibid., para. 30; see M. Andenas and E. Bjorge, ‘Norske Domstoler og Utviklingen av Menneskerettene’, Jussens Venner 46:5 (2011) 251–86.

112A. Stone Sweet et al., ‘Introduction: The Reception of the ECHR in National Legal Order’, in Stone Sweet (ed.), A Europe of Rights: The Impact of the ECHR on National Legal Systems, at 14.

113R (Faizovas) v. Secretary of State for Justice [2009] EWCA Civ 373. See the discussion in M. Arden, ‘Peaceful or Problematic? The Relationship between National Supreme Courts and Supranational Courts in Europe’, in P. Eeckhout et al. (eds.), Yearbook of European Law 2010 (Oxford University Press, 2010) 3–20, at 8–9 (hereinafter Arden, ‘Peaceful or Problematic?’).