The Concept of the Rule of Law and the European Court of Human Rights [Hardcover, 1st ed.] 0199671192, 9780199671199

Table of contents :
Contents
Table of Cases and International Instruments xiii
List of Abbreviations xxiii
1. Introduction 1
1 Background of the Research 1
1.1 Th e upsurge of the rule of law debate 1
1.2 Th e rule of law as a standard for the international legal system 3
1.3 An international rule of law standard directed at states 6
2 Focus of the Research 9
2.1 Th e European Convention on Human Rights 9
2.2 Th e rule of law as a value underlying the Convention 11
3 Outline and Methodology 15
2. Th e Rule of Law Concept 18
1 Introduction 18
2 Approaches to the Rule of Law Concept 19
2.1 Elements of the rule of law 19
2.2 Aims of the rule of law 21
2.3 National forms of the rule of law 24
2.4 Analysis 35
3 Legality: Th e Central Element of the Rule of Law Concept 37
3.1 Diff erent forms of legality 37
3.2 Quality requirements of legality 38
3.3 Judicial safeguards as requirements of legality 42
3.4 Legality setting limits to governmental power 44
3.5 Legality and the substantive aims of law 45
4 Separation of Powers, Judicial Safeguards, and the Rule of Law 49
4.1 Th e separation of powers doctrine 49
4.2 Safeguards by an independent judiciary 51
5 Th e Relation between Human Rights and the Rule of Law 54
5.1 Procedural human rights 55
5.2 Human rights and limited government 57
5.3 Human rights and the substantive contents of law 60
6 Th e Relation between Democracy and the Rule of Law 62
6.1 Democracy defi ned as majority rule 62
6.2 Democracy defi ned as the self-rule of the people 64
7 Conclusion 67
3. Th e Legality Concept in the Case Law 70
1 Introduction 70
2 Th e Role and Function of Legality in the Case Law 71
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x Contents
2.1 Th e Convention articles referring to legality 71
2.2 Th e term legality 73
2.3 Th e importance of legality for the protection of Convention rights 74
2.4 Th e requirements of legality derived from the rule of law 76
3 Th e Existence of a National Law 79
3.1 Th e fourth instance doctrine 80
3.2 Th e material view on domestic law 83
3.3 Analysis 85
4 Th e Quality Requirements set to National Law 86
4.1 Accessibility 87
4.2 Foreseeability 88
4.3 Judicial safeguards as a requirement of legality 101
4.4 Non-retroactivity in criminal cases 105
4.5 Quality requirements of legality concerning the right to liberty 110
4.6 A limited role of generality in reviewing the quality of the law 112
4.7 Analysis 113
5 Diff erentiating Legality from Proportionality 117
6 Conclusion 121
4. Judicial Safeguards 124
1 Introduction 124
2 Th e Right to a Fair Trial 125
2.1 Th e detailed guarantees of the right to a fair trial 125
2.2 Access to court derived from the rule of law 128
2.3 Th e scope of the right of access to court 130
2.4 Limitations of the right of access to court 137
2.5 Th e authority of judicial decisions 146
2.6 Analysis 150
3 Judicial Safeguards beyond the Right to a Fair Trial 153
3.1 Th e authority of the judiciary 153
3.2 Judicial safeguards protecting the right to liberty 154
3.3 Th e right to an eff ective remedy 155
3.4 Analysis 158
4 Separation of Powers and Independent Judiciary in the Case Law 159
4.1 Th e growing importance of the separation of powers doctrine 159
4.2 A general standard of independence 162
4.3 Independence and impartiality 164
4.4 A tribunal established by law 167
4.5 Analysis 168
5 Conclusion 170
5. Th e Substantive Contents of Law 173
1 Introduction 173
2 Procedural Convention rights 174
3 Th e Rule of Law and Individual Freedom 178
3.1 Th e changing focus of the Convention 178
3.2 Th e rule of law most relevant to protect individual freedom 180
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Contents xi
3.3 Th e rule of law and positive obligations 181
4 Th e Rule of Law and the Substantive Contents of Law 185
4.1 Legality and a hierarchy of norms 185
4.2 Th e Convention as a constitutional instrument 186
5 Conclusion 191
6. Democracy 193
1 Introduction 193
2 Defi ning Democracy 193
2.1 Democracy based on pluralism and participation 193
2.2 Th e only political model compatible with the Convention 196
2.3 Th e importance of judicial safeguards to democracy 198
2.4 Analysis 200
3 Th e Rule of Law Requiring Democracy 200
3.1 Th e democratic heritage of norms 201
3.2 Democracy governed by the rule of law 206
4 Conclusion 208
7. Conclusion 210
Bibliography 219
Index 233

Citation preview

T H E C O N C E P T O F T H E RU L E O F L AW A N D T H E E U RO P E A N C O U RT O F H U M A N   R I G H T S

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The Concept of the Rule of Law and the European Court of Human Rights G E R A N N E L AU T E N B A C H

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries. © Geranne Lautenbach 2013 The moral rights of the author have been asserted First Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Crown copyright material is reproduced under Class License Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013946683 ISBN 978–0–19–967119–9 Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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When the student is ready, the master appears. Buddhist proverb

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Acknowledgements This book is the result of a PhD thesis that I have written at the University of Amsterdam and have defended on 27 January 2012 and have afterwards revised for publication. As I have worked on my thesis over a period of several years, including intermissions, many people have been involved in the process in one way or another. I will mention some of the most notable attributions to this work and hope to be excused for not being exhaustive. Any mistakes found in the book remain entirely my own responsibility. Most thanks are due to André Nollkaemper and Erika de Wet for their supervision. I would like to thank them for enabling me to perform this research, for all our discussions when the project was not yet clearly framed, and, especially, for their detailed comments to the full draft of my texts. My PhD committee members, Tom Barkhuysen, Yvonne Donders, Ernst Hirsch Ballin, Helen Keller, and Egbert Myjer, I would like to thank for assessing my work in a serious and thorough manner. For the same reason my thanks are due to Carla Zoethout who was willing to assess the manuscript at a very late stage. They have each provided me with most helpful comments which enabled me to improve my final text. Mark Villiger I would like to thank for organizing a visit to the European Court of Human Rights and for discussing my work with me. The directors of the Max Planck Institute for Comparative Public Law and International Law—Armin von Bogdandy and Rüdiger Wolfrum—I wish to thank for providing the opportunity to conduct research at their institute. Jolize Lautenbach has been most helpful in discussing my text with me. My colleagues at the library of the Faculty of Law of the University of Amsterdam I would like to thank for their help and support in searching specific articles or books. I would like to thank Belinda MacMahon for her thorough and meticulous editing and Anthony Hinton for his patience and guidance in the editing process. Finally, I dedicate this book to the two most important men in my life, my dear husband and my lovely son.

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Contents Table of Cases and International Instruments List of Abbreviations 1. Introduction 1 Background of the Research 1.1 The upsurge of the rule of law debate 1.2 The rule of law as a standard for the international legal system 1.3 An international rule of law standard directed at states

2 Focus of the Research 2.1 The European Convention on Human Rights 2.2 The rule of law as a value underlying the Convention

3 Outline and Methodology 2. The Rule of Law Concept 1 Introduction 2 Approaches to the Rule of Law Concept 2.1 2.2 2.3 2.4

Elements of the rule of law Aims of the rule of law National forms of the rule of law Analysis

3 Legality: The Central Element of the Rule of Law Concept 3.1 3.2 3.3 3.4 3.5

Different forms of legality Quality requirements of legality Judicial safeguards as requirements of legality Legality setting limits to governmental power Legality and the substantive aims of law

4 Separation of Powers, Judicial Safeguards, and the Rule of Law 4.1 The separation of powers doctrine 4.2 Safeguards by an independent judiciary

5 The Relation between Human Rights and the Rule of Law 5.1 Procedural human rights 5.2 Human rights and limited government 5.3 Human rights and the substantive contents of law

6 The Relation between Democracy and the Rule of Law 6.1 Democracy defined as majority rule 6.2 Democracy defined as the self-rule of the people

7 Conclusion 3. The Legality Concept in the Case Law 1 Introduction 2 The Role and Function of Legality in the Case Law

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xiii xxiii 1 1 1 3 6 9 9 11 15 18 18 19 19 21 24 35 37 37 38 42 44 45 49 49 51 54 55 57 60 62 62 64 67 70 70 71

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Contents

x 2.1 2.2 2.3 2.4

The Convention articles referring to legality The term legality The importance of legality for the protection of Convention rights The requirements of legality derived from the rule of law

3 The Existence of a National Law 3.1 The fourth instance doctrine 3.2 The material view on domestic law 3.3 Analysis

4 The Quality Requirements set to National Law 4.1 4.2 4.3 4.4 4.5 4.6 4.7

Accessibility Foreseeability Judicial safeguards as a requirement of legality Non-retroactivity in criminal cases Quality requirements of legality concerning the right to liberty A limited role of generality in reviewing the quality of the law Analysis

5 Differentiating Legality from Proportionality 6 Conclusion 4. Judicial Safeguards 1 Introduction 2 The Right to a Fair Trial 2.1 2.2 2.3 2.4 2.5 2.6

The detailed guarantees of the right to a fair trial Access to court derived from the rule of law The scope of the right of access to court Limitations of the right of access to court The authority of judicial decisions Analysis

3 Judicial Safeguards beyond the Right to a Fair Trial 3.1 3.2 3.3 3.4

The authority of the judiciary Judicial safeguards protecting the right to liberty The right to an effective remedy Analysis

4 Separation of Powers and Independent Judiciary in the Case Law 4.1 4.2 4.3 4.4 4.5

The growing importance of the separation of powers doctrine A general standard of independence Independence and impartiality A tribunal established by law Analysis

5 Conclusion 5. The Substantive Contents of Law 1 Introduction 2 Procedural Convention rights 3 The Rule of Law and Individual Freedom 3.1 The changing focus of the Convention 3.2 The rule of law most relevant to protect individual freedom

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71 73 74 76 79 80 83 85 86 87 88 101 105 110 112 113 117 121 124 124 125 125 128 130 137 146 150 153 153 154 155 158 159 159 162 164 167 168 170 173 173 174 178 178 180

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Contents 3.3 The rule of law and positive obligations

4 The Rule of Law and the Substantive Contents of Law 4.1 Legality and a hierarchy of norms 4.2 The Convention as a constitutional instrument

5 Conclusion 6. Democracy 1 Introduction 2 Defining Democracy 2.1 2.2 2.3 2.4

Democracy based on pluralism and participation The only political model compatible with the Convention The importance of judicial safeguards to democracy Analysis

3 The Rule of Law Requiring Democracy 3.1 The democratic heritage of norms 3.2 Democracy governed by the rule of law

4 Conclusion

xi 181 185 185 186 191 193 193 193 193 196 198 200 200 201 206 208

7. Conclusion

210

Bibliography Index

219 233

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Table of Cases and International Instruments EUROPEAN COURT OF HUMAN RIGHTS A and ors v United Kingdom [GC] (App no 3455/05) 19 February 2009, ECHR 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 A v United Kingdom (App no 35373/97) 17 December 2002, ECHR 2002-X . . . . . . . . . . . . . . . 132 Abdolkhani and Karimnia v Turkey (App no 30471/08) 22 September 2009, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Abdulaziz, Cabales and Balkandali v United Kingdom [Pl] (App no 9214/80) 28 May 1985, Series A no 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Abdulkhakov v Russia (App no 14743/11) 2 October 2012, unreported . . . . . . . . . . . . . . . . . . . . 176 Abdülsamet Yaman v Turkey (App no 32446/96) 2 November 2004, unreported. . . . . . . . . . . . . . 176 Accardi and Ors v Italy (dec.) (App no 30598/02) 20 January 2005, ECHR 2005-II . . . . . . . . . . 202 Achour v France [GC] (App no 67335/01) 29 March 2006, ECHR 2006-IV . . . . . . . . . . . . . . . . 106 Adali v Turkey (App no 38187/97) 31 March 2005, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Ahmet Özkan and Ors v Turkey (App no 21689/93) 6 April 2004, unreported . . . . . . . . . . . . . . . 175 Airey v Ireland (App no 6289/73) 9 October 1979, Series A no 32 . . . . . . . . . . . . . . . . 181, 196, 199 Aït-Mouhoub v France (App no 22924/93) 28 October 1998, ECHR 1998-VIII . . . . . . . . . . . . . 199 Akpınar and Altun v Turkey (App no 56760/00) 27 February 2007, unreported . . . . . . . . . . . . . . 196 Aksoy v Turkey (App no 21987/93) ECHR 1996-VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Al-Adsani v United Kingdom [GC] (App no 35763/97) 21 November 2001, ECHR 2001-XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132, 142 Albu and ors v Romania (App no 34796/09 - 34859/09), 10 May 2012, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Al-Jedda v United Kingdom [GC] (App no 27021/08) 7 July 2011, ECHR 2011 . . . . . . . . . . . . 191 Al-Nashif v Bulgaria (App no 50963/99) 20 June 2002, unreported . . . . . . . . . . . . . . . . . . . 103, 152 Amuur v France (App no 19776/92) ECHR 1996-III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 102 Annoni Di Gussola and ors v France (App no 31819/96) 14 November 2000, ECHR 2000-XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Antonyan v Armenia (App no 3946/05) 2 October 2012, unreported . . . . . . . . . . . . . . . . . . . . . . . 94 Ashingdane v United Kingdom (App no 8225/78) 28 May 1985, Series A no 93 . . . . . . . 82, 137, 140 Asito v Moldova (App no 40663/98) 8 November 2005, unreported . . . . . . . . . . . . . . . . . . . . . . . 149 Assanidze v Georgia [GC] (App no 71503/01) 8 April 2004, ECHR 2004-II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 82, 126, 162, 199 Association Ekin v France (App no 39288/98) 17 July 2001, ECHR 2001-VIII . . . . . . . . . . . . . . 105 Autronic Ag v Switzerland [Pl] (App no 12726/87) 22 May 1990, Series A no 178 . . . . . . . . . . . . . 84 B and P v United Kingdom (App no 36337/97) 24 April 2001, ECHR 2001-III . . . . . . . . . . . . . 199 Baklanov v Russia (App no 68443/01) 9 June 2005, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Baranowski v Poland (App no 28358/95) 28 March 2000, ECHR 2000-III . . . . . . . . . . . . . . 71, 103 Barthold v Germany (App no 8734/79) 25 March 1985, Series A no 90 . . . . . . . . . . . . . . . . . 82, 101 Bashir and Ors v Bulgaria (App no 65028/01) 14 June 2007, unreported . . . . . . . . . . . . . . . . . . . 103 Beer and Regan v Germany [GC] (App no 28934/95) 18 February 1999, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 142 Běleš and ors v Czech Republic (App no 47273/99) 12 November 2002, ECHR 2002-IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Belvedere Alberghiera SRL v Italy (App no 31524/96) 30 May 2000, ECHR 2000-VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Benham v United Kingdom [GC] (App no 19380/92) 10 June 1996, ECHR 1996-III . . . . . . . . . . 80

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xiv

Table of Cases and International Instruments

Benjamin and Wilson v United Kingdom (App no 28212/95) 26 September 2002, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Beyeler v Italy [GC] (App no 33202/96) 5 January 2000, ECHR 2000-I . . . . . . . . . . . . . . . . . . . 120 Böke and Kandemir v Turkey (App no 71912/01, 26968/02, 36397/03) 10 March 2009, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 Bordovskiy v Russia (App no 49491/99) 8 February 2005, unreported . . . . . . . . . . . . . . . . . . . . . 100 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland [GC] (App no 45036/98) 30 June 2005, ECHR 2005-VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 81, 98, 186, 214 Bottazzi v Italy [GC] (App no 34884/97) 28 July 1999, ECHR 1999-V . . . . . . . . . . . . . . . . . . . 127 Boyle and Rice v United Kingdom [Pl] (App no 9659/82) 27 April 1988, Series A no 131. . . . . . . . 156 Bozano v France (App no 9990/82) 18 December 1986, Series A no 111 . . . . . . . . . . . . . . . . . . . . 82 Brannigan and Mcbride v United Kingdom [Pl] (App no 14553/89) 26 May 1993, Series A no 258-B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 176, 200 Brogan and ors v United Kingdom [Pl] (App no 11209/84) 29 November 1988, Series A no 145-B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 154, 155, 176 Broniowski v Poland [GC] (App no 31443/96) 22 June 2004, ECHR 2004-V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 62, 73, 119, 176, 183, 199 Brumărescu v Romania [GC] (App no 28342/95) 28 October 1999, ECHR 1999-VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 148 Bulgakova v Russia (App no 69524/01) 18 January 2007, unreported . . . . . . . . . . . . . . . . . . . . . . 149 Buzescu v Romania (App no 61302/00) 24 May 2005, unreported . . . . . . . . . . . . . . . . . . . . 117, 120 Bykov v Russia [GC] (App no 4378/02) 10 March 2009, unreported . . . . . . . . . . . . . . . . . . . . . . . 89 C G and ors v Bulgaria (App no 1365/07) 24 April 2008, ECHR not yet reported . . . . . . . . . . . . 152 C R v United Kingdom (App no 20190/92) 22 November 1995, Series A no 335-C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 106–107, 127, 176 Campagnano v Italy (App no 77955/01) 23 March 2006, unreported. . . . . . . . . . . . . . . . . . . . . . . 73 Cantoni v France [GC] (App no 17862/91) 15 November 1996, ECHR 1996-V . . . . . . . . . . . 77, 93 Capital Bank Ad v Bulgaria (App no 49429/99) 24 November 2005, ECHR 2005-XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 152 Carbonara and Ventura v Italy (App no 24638/94) 30 May 2000, ECHR 205 . . . . . . . . . . . . . . . . 84 Castells v Spain (App no 11798/85) 23 April 1992, Series A no 236 . . . . . . . . . . . . . . . . . . . . . . . 194 Centro Europa 7 7 S.r.l. and Di Stefano v Italy [GC] (App no 38433/09) 7 June 2012, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Cetin and ors v Turkey (App no 40153/98) 13 february 2003, ECHR 2003-III . . . . . . . . . . . . . . 105 Chassagnou and ors v France [GC] (App no 25088/94) 29 April 1999, ECHR 1999-III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 187 Chauvy and ors v France (App no 64915/01) 29 June 2004, ECHR 2004-VI . . . . . . . . . . . . . . . . . 91 Chorherr v Austria (App no 13308/87) 25 August 1993, Series A no 266-B . . . . . . . . . . . . . . . . . 166 Chrysostomosarachrysostomou and Loizidou v Turkey (Pl) (App nos 15299/89, 15300/89, 15318/89) 4 March 1991, 68 DR 216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Coëme and ors v Belgium (App no 32492/96) 22 June 2000, ECHR 2000-VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 167, 202 Colombani and ors v France (App no 51279/99) 25 June 2002, ECHR 2002-V . . . . . . . . . . . . . . . 96 Čonka v Belgium (App no 51564/99) 5 February 2002, ECHR 2001-I,  . . . . . . . . . . . . . . . . . . . 157 Cordova v Italy (No. 1) (App no 40877/98) 30 January 2003, Reports of Judgments and Decisions 2003-I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 199 Cossey v United Kingdom [Pl] (App no 10843/84) 27 September 1990, Series A no 184 . . . . . . . . 183 Cubber v Belgium (App no 9186/80) 26 October 1984, Series A no 86 . . . . . . . . . . . . . . . . . . . . 197 Cudak v Lithuania [GC] (App no 15869/02) 23 March 2010, ECHR not yet reported . . . . 135, 143 Delcourt v Belgium (App no 2689/65) 17 January 1970, Series A no 11 . . . . . . . . . . . . . . . . . . . . 199 Demir and Baykara v Turkey [GC] (App no 34503/97) 12 November 2008, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 184 Deweer v Belgium (App no 6903/75) 27 February 1980, Series A no 35 . . . . . . . . . . . . . . . . . . . . 130 Di Mauro v Italy [GC] (App no 34256/96) 28 July 1999, ECHR 1999-V . . . . . . . . . . . . . . 127

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Dikme v Turkey (App no 20869/92) 11 July 2000, ECHR 2000-VIII . . . . . . . . . . . . . . . . . 154, 176 Djavit an v Turkey (App no 20652/92) 20 February 2003, ECHR 2003-III . . . . . . . . . . . . . . . . . . 81 Dmd Group, A.S. v Slovakia (App no 19334/03) 5 October 2010. . . . . . . . . . . . . . . . . 167, 168, 202 Draon v France [GC] (App no 1513/03) 6 October 2005, ECHR 2006-IX . . . . . . . . . . . . . . . . . 129 Dudgeon v United Kingdom [Pl] (App no 7525/76) 22 October 1981, Series A no 45 . . . . . . . . . 116 EL, RL and JO-L v Switzerland (App no 20919/92) 29 August 1997, ECHR 1997-V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Easterbrook v United Kingdom (App no 48015/99) 12 June 2003, unreported . . . . . . . . . . . . . . . 160 Engel and ors v The Netherlands [Pl] (App no 5100/71) 8 June 1976, Series A no 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 72, 110, 131, 186 Estrikh v Latvia (App no 73819/01) 18 January 2007, unreported . . . . . . . . . . . . . . . . . . . . 155, 177 Falter Zeitschriften GmbH v Austria (no 2) (App no 3084/07) 18 September 2012, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Fayed v United Kingdom (App no 17101/90) 21 September 1990, Series A no 294-B . . . . . . . . . . 133 Fedorchenko and Lozenko v Ukraine (App no 387/03) 20 September 2012, unreported . . . . . . . . . . 175 Ferrazzini v Italy [GC] (App no 44759/98) 12 July 2001, ECHR 2001-VII. . . . . . . . . . . . . . . . . 134 Filiz and Kalkan v Turkey (App no 34481/97) 20 June 2002, unreported . . . . . . . . . . . . . . . 154, 176 Fischer v Austria (App no 16922/90) 26 April 1995 Series A no 312 . . . . . . . . . . . . . . . . . . . . . . 190 Fogarty v United Kingdom [GC] (App no 37112/97) 21 November 2001, ECHR 2001-XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132, 142 Gäfgen v Germany [GC] (App no 22978/05) 1 June 2010, ECHR not yet reported . . . . . . . 127, 175 García Ruiz v Spain [GC] (App no 30544/96) 21 January 1999, ECHR 1999-I . . . . . . . . . . . . . . 80 Georgian Labour Party v Georgia (App no 9103/04) 8 July 2008, ECHR not yet reported . . . 118, 195 Geouffre de la Pradelle v France (App no 12964/87) 16 December 1992, Series A no 253-B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Gillan and Quinton v United Kingdom (App no 4158/05) 12 January 2010, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 98 Gillow v United Kingdom (App no 9063/80) 24 November 1986 . . . . . . . . . . . . . . . . . . . . . . . . . 104 Golder v United Kingdom [Pl] (App no 4451/70) 21 February 1975, Series A no 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 54, 101, 128 Gorraiz Lizarraga and ors v Spain (App no 62543/00) 27 April 2004, ECHR 2004-III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Gorzelik and ors v Poland [GC] (App no 44158/98) 17 February 2004, ECHR 2004-I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 194 Groppera Radio Ag and ors v Switzerland [Pl] (App no 10890/84) 28 March 1990, Series A no 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 87 Guja v Moldova [GC] (App no 14277/04) 12 February 2008, ECHR not yet reported . . . . . . . . 160 Gül v Switzerland (App no 23218/94) 19 February 1996, ECHR 1996-I . . . . . . . . . . . . . . . . . . . 182 Gülmez v Turkey (App no 16330/02) 20 May 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Haci Özen v Turkey (App no 46286/99) 21 April 2007, unreported . . . . . . . . . . . . . . . . . . . 155, 176 Haes and Gijsels v Belgium (App no 19983/92) 24 February 1997, ECHR 1997-I . . . . . . . . . . . . 154 Halford v United Kingdom (App no 20605/92) 25 June 1997, ECHR 1997-III . . . . . . . . . . . . . . . 81 Handyside v United Kingdom [Pl] (App no 5493/72) 7 December 1976, Series A no 24. . . . . . . . 194 Hasan and Chaush v Bulgaria [GC] (App no 30985/96) 26 October 2000, ECHR 2000-XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 104 Hentrich v France (App no 13616/88) 22 September 1994, Series A no 296-A. . . . . . . . . . . . . . . 103 Herczegfalvy v Austria (App no 10533/83) 24 September 1992, Series A no 244, . . . . . . . . . . . . . 97 Hirst v United Kingdom (App no 74025/01) 30 March 2004, unreported . . . . . . . . . . . . . . . 73, 206 Hirst v United Kingdom [GC] (App no 74025/01) 6 October 2005, ECHR 2005-IX. . . . . . 73, 195, 206, 215 Holy Monasteries v Greece (App no 13092/87) 9 December 1994, Series A no 301-A . . . . . . . . . . 132 Hornsby v Greece (App no 18357/91) 19 March 1997, ECHR 1997-II . . . . . . . . . . . . . . . . . . . . . 146 Hutten-Czapska v Poland (App no 35014/97) 22 February 2005, unreported . . . . . . . . . . . . . . . . 178 Huvig v France (App no 11105/84) 24 April 1990, Series A no 176-B . . . . . . . . . . . . . . . . . . . . . . 99

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İğdeli v Turkey (App no 29296/95) 20 June 2002, unreported . . . . . . . . . . . . . . . . . . . . . . . 154, 176 Ilaşcu and ors v Moldova and Russia [GC] (App no 48787/99) 8 July 2004, ECHR 2004-VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 190 Immobiliare Saffi v Italy [GC] (App no 22774/93) 28 July 1999, ECHR 1999-V. . . . . . . . . 146, 147 Ireland v United Kingdom [Pl] (App no 5310/71) 18 January 1978, Series A no 25 . . . . . . . . 13, 190 Ismoilov and ors v Russia (App no 2947/06) 24 April 2008, ECHR not yet reported. . . . . . . . . . . . 72 James and ors v United Kingdom [Pl] (App no 8793/79) 21 February 1986, Series A no 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132, 205 Jersild v Denmark [GC] (App no 15890/89) 23 September 1994, Series A no 298 . . . . . . . . . . . . . 84 Jorgic v Germany (App no 74613/01) 12 July 2007, ECHR not yet reported . . . . . . . . . . . . . . 72, 93 K-HW v Germany [GC] (App no 37201/97) 22 March 2001, ECHR 2001-II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 109, 127, 176 Kafkaris v Cyprus [GC] (App no 21906/04) 12 February 2008, ECHR not yet reported . . . . 84, 185 Kaić and ors v Croatia (App no 22014/04) 17 July 2008, unreported . . . . . . . . . . . . . . . . . . . . . . 157 Karner v Austria (App no 40016/98) 24 July 2003, ECHR 2003-IX . . . . . . . . . . . . . . . . . . . . . . 115 Kart v Turkey [GC] (App no 8917/05) 3 December 2009, ECHR not yet reported . . . . . . . . . . . 145 Keegan v United Kingdom (App no 16969/90) 26 May 1994, Series A no 290 . . . . . . . . . . . . . . . 182 Kennedy v United Kingdom (App no 26839/05) 18 May 2010, ECHR not yet reported . . . . . 99, 118 Khudoyorov v Russia (App no 6847/02) 8 November 2005, ECHR 2005-X . . . . . . . . . . . . . . . . . . 71 Khudyakova v Russia (App no 13476/04) 8 January 2009, unreported . . . . . . . . . . . . . . . . . . . . . . 89 Kimlya and ors v Russia (App no 76836/01 and 32782/03) 1 October 2009, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Klass and ors v Germany [Pl] (App no 5029/71) 6 September 1978, Series A no 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 135, 156, 177, 196, 200 Kleyn and ors v The Netherlands [GC] (App no 39343/98) 6 May 2003, ECHR 2003-VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Kokkinakis v Greece (App no 14307/88) 25 May 1993, Series A no 260-A . . . . . . . . . . . . 77, 93, 195 Kolevi v Bulgaria (App no 1108/02) 5 November 2009, unreported . . . . . . . . . . . . . . . . . . . 155, 176 Kononov v Latvia (App no 36376/04) 24 July 2008, unreported. . . . . . . . . . . . . . . . . . . . . . . . 71, 83 Kononov v Latvia [GC] (App no 36376/04) 17 May 2010, ECHR not yet reported. . . . . . . . . . . . 82 Kopp v Switzerland (App no 23224/94) 25 March 1998, ECHR 1998-II . . . . . . . . . . . . . . . . 99, 104 Korbely v Hungary [GC] (App no 9174/02) 19 September 2008, ECHR not yet reported . . . . 82, 94 Kotov v Russia [GC] (App no 54522/00) 3 April 2012, unreported . . . . . . . . . . . . . . . . . . . . . . . . 75 Kravchenko v Russia (App no 34615/02) 2 April 2009 unreported . . . . . . . . . . . . . . . . . . . . . . . . 148 Kress v France [GC] (App no 39594/98) 7 June 2001, ECHR 2001-VI . . . . . . . . . . . . . . . . . . . . 135 Kreuz v Poland (App no 28249/95) 19 June 2001, ECHR 2001-IV . . . . . . . . . . . . . . . . . . . . . . . 129 Kruslin v France (App no 11801/85) 24 April 1990, Series A no 176-A . . . . . . . . . . . . . . . . . . 77, 99 Kudła v Poland [GC] (App no 30210/96) 26 October 2000, ECHR 2000-XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 177, 196 Kyprianou v Cyprus [GC] (App no 73797/01) 15 December 2005, ECHR 2005-VIII . . . . . . . . . 154 Ladent v Poland (App no 11036/03) 18 March 2008, ECHR not yet reported . . . . . . . . . . . 111, 199 Lambert v France (App no 23618/94) 24 August 1998, ECHR 1998-V . . . . . . . . . . . . . . . . . . . . 105 Lawless v Ireland (No. 1) (App no 332/57) 14 November 1960, Series A no 1 . . . . . . . . . . . . . . . 199 Leander v Sweden (App no 9248/81) 26 March 1987, Series A no 116 . . . . . . . . . . . . . . . . . . . . . . 88 Lexa v Slovakia (App no 54334/00) 23 September 2008, unreported . . . . . . . . . . . . . . . . . . . . . . . 81 Leyla Şahin v Turkey [GC] (App no 44774/98) 10 November 2005, ECHR 2005-XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195, 207 Lithgow and ors v United Kingdom [Pl] (App no 9006/80; 9262/81; 9263/81; 9265/81; 9266/81; 9313/81; 9405/81) 8 July 1986, Series A no 102 . . . . . . . . . . . . . . . . . . 132 Loizidou v Turkey [GC] (App no 15318/89) 23 March 1995, Series A no 310 . . . . . . . . . . . . . . . . 10 López Ostra v Spain (App no 16798/90) 9 December 1994, Series A no 303-C . . . . . . . . . . . . . . 182 Maestri v Italy [GC] (App no 39748/98) 17 February 2004, ECHR 2004-I . . . . . . . . . . . . . . . 85, 94 Malahov v Moldova (App no 32268/02) 7 June 2007, unreported . . . . . . . . . . . . . . . . 129, 181, 199 Malone v United Kingdom [Pl] (App no 8691/79) 2 August 1984, Series A no 82 . . . . . . . . . . 71, 74

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M and ors v Bulgaria (App no 41416/08) 26 July 2011, unreported . . . . . . . . . . . . . . . . . . . . . . . 103 Mamatkulov and Askarov v Turkey [GC] (App no 46827/99) 4 February 2005, ECHR 2005-I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Marckx v Belgium [Pl] (App no 6833/74) 13 June 1979, Series A no 31 . . . . . . . . . . . . . . . . . 78, 215 Margareta and Roger Andersson v Sweden (App no 12963/87) 25 February 1992, Series A no 226-A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Markovic and ors v Italy [GC] (App no 1398/03) 14 December 2006, ECHR 2006-XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 144 Markt Intern Verlag Gmbh and Klaus Beermann v Germany [Pl] (App no 10572/83) 20 November 1989, Series A no 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Matheus v France (App no 62740/00) 31 March 2005, unreported. . . . . . . . . . . . . . . . . . . . . . . . 146 Maurice v France [GC] (App no 11810/03) 6 October 2005, ECHR 2005-IX . . . . . . . . . . . . . . . 125 McElhinney v Ireland [GC] (App no 31253/96) 21 November 2001, ECHR 2001-XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132, 142 McKay v United Kingdom [GC] (App no 543/03) 3 October 2006, ECHR 2006-X . . . . . . . . . . . . 71 Medvedyev and ors v France [GC] (App no 3394/03) 29 March 2010, ECHR not yet reported . . . 110 Melnyk v Ukraine (App no 23436/03) 28 March 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Micallef v Malta (App no 17056/06) 15 January 2008, unreported . . . . . . . . . . . . . . . . . . . . . . . 130 Mikhaniv v Ukraine (App no 75522/01) 6 November 2008, unreported. . . . . . . . . . . . . . . . 104 Mizzi v Malta (App no 26111/02) 12 January 2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Moiseyev v Russia (App no 62936/00) 9 October 2008, unreported . . . . . . . . . . . . . . . . . . . . . 72, 75 Mooren v Germany [GC] (App no 11364/03) 9 juli 2009, ECHR not yet reported . . . . . . . . . . . . 74 Müller and ors v Switzerland (App no 10737/84) 24 May 1988, Series A no 133 . . . . . . . . . . . . . . 92 Mürsel Eren v Turkey (App no 60856/00) 7 February 2006, ECHR 2006-II . . . . . . . . . . . . . . . . . . 97 Musa and ors v Bulgaria (App no 61259/00) 11 January 2007, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 152 Nada v Switzerland [GC] (App no 10593/08) 12 September 2012, ECHR 2012 . . . . . . . . . . . . . 191 Nakhmanovich v Russia (App no 55669/00) 2 March 2006, unreported . . . . . . . . . . . . . . . . . . . . . 71 National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v United Kingdom (App no 21319/93) 23 October 1997, ECHR 1997-VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Nechiporuk and Yonkalo v Ukraine (App no 42310/04) 21 April 2011, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 155 Nejdet Şahin and Perihan Şahin v Turkey [GC] (App no 13279/05) 20 October 2011, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Nevmerzhitsky v Ukraine (App no 54825/00) 5 April 2005, ECHR 2005-II . . . . . . . . . . . . . . . . . 103 Nikula v Finland (App no 31611/96) 21 March 2002, ECHR 2002-II . . . . . . . . . . . . . . . . . . . . 153 Nuutinen v Finland (App no 32842/96) 27 June 2000, ECHR 2000-VIII . . . . . . . . . . 148, 182, 183 OAO Neftyanaya Kompaniya Yukos v Russia (App no 14902/04) 20 September 2011, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Okyay and ors v Turkey (App no 36220/97) 12 July 2005, ECHR 2005-VII. . . . . . . . . . . . . . . . . 147 Olsson v Sweden [Pl] (App no 10465/83) 24 March 1988, Series A no 130. . . . . . . . . . . . . . . . . . . 91 Öneryıldız v Turkey [GC] (App no 48939/99) 30 November 2004, ECHR 2004-XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 175 Open Door and Dublin Well Woman v Ireland (application number 14234/88;14235/88) 23 September 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Opuz v Turkey (App no 33401/02) 9 June 2009, ECHR not yet reported . . . . . . . . . . . 13, 188, 191 Osman v United Kingdom [GC] (App no 23452/94) 28 October 1998, ECHR 1998-VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Othman (Abu Qatada) v The United Kingdom (App no 8139/09) 17 January 2012 ECHR 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 PP v Poland (App no 8677/03) 8 January 2008, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Pabla Ky v Finland (App no 47221/99) 22 June 2004, ECHR 2004-V . . . . . . . . . . . . . . . . 161, 165 Pančenko v Latvia (App no 40772/98) 28 October 1999, unreported . . . . . . . . . . . . . . . . . . . . . . 179

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Pellegrin v France (App no 28541/95) 8 December 1999, Reports of Judgments and Decisions 1999-VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Pla and Puncernau v Andorra (App no 69498/01) 13 July 2004, ECHR 2004-VIII . . . . . . . . . . . . 77 Plesó v Hungary (App no 41242/08) 2 October 2012, unreported . . . . . . . . . . . . . . . . . . . . . . . . 111 Poitrimol v France (App no 14032/88) 23 November 1993, Series A no 277-A . . . . . . . . . . . . . . 127 Popov v Moldova (App no 19960/04) 6 December 2005, unreported,  . . . . . . . . . . . . . . . . . . . . . 149 Powell and Rayner v United Kingdom (App no 9310/81) 21 February 1990, Series A no 172 . . . . 132 Pravednaya v Russia (App no 69529/01) 18 November 2004, unreported. . . . . . . . . . . . . . . . . . . 149 Procola v Luxembourg (App no 14570/89) 28 September 1995, Series A no 326. . . . . . . . . . 161, 166 RR v Poland (App no 27617/04) 26 May 2011, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 Rees v United Kingdom [Pl] (App no 9532/81) 17 October 1986, Series A no 106 . . . . . . . . . . . . 183 Refah Partisi (the Welfare Party) and ors v Turkey (App no 41340/98) 31 July 2001, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 194, 204 Refah Partisi (the Welfare Party) and ors v Turkey [GC] (App no 41340/98) 13 February 2003, ECHR 2003-II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Rekvényi v Hungary [GC] (App no 25390/94) 20 May 1999, ECHR 1999-III. . . . . . . . . . . . . . . . 91 Robathin v Austria (App no 30457/06) 3 July 2012, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Roche v United Kingdom [GC] (App no 32555/96) 19 October 2005, ECHR 2005-X . . . . . . . . . 129 Roemen and Schmit v Luxembourg (App no 51772/99) 25 February 2003, ECHR 2003-IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Rotaru v Romania [GC] (App no 28341/95) 4 May 2000, ECHR 2000-V. . . . . . . . . . . 99, 103, 152 Ryabykh v Russia (App no 52854/99) 24 July 2003, ECHR 2003-IX . . . . . . . . . . . . . . . . . . . 12, 148 SW v United Kingdom (App no 20166/92) 22 November 1995, Series A no 335-B . . . . . . . . . . . 107 Saadi v United Kingdom [GC] (App no 13229/03) 29 January 2008, ECHR not yet reported . . . 111 Sabri Güneş v Turkey [GC] (App no 27396/06) 29 June 2012, ECHR not yet reported . . . . . . . . 190  Sacilor Lormines v France (App no 65411/01) 9 November 2006, ECHR 2006-XIII . . . . . . . . . . 165 Sakik and ors v Turkey (App no 23878/94) 26 November 1997, ECHR 1997-VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 176 Salabiaku v France (App no 10519/83) 7 October 1988, Series A no 141-A, . . . . . . . . . . . . . . . .126 Saliba v Malta (App no 4251/02) 8 November 2005, unreported . . . . . . . . . . . . . . . . . . . . . . . . 139 Salov v Ukraine (App no 65518/01) 6 September 2005, ECHR 2005-VIII . . . . . . . . . . . . . . . . . 149 Sanoma Uitgevers BV v The Netherlands [GC] (App no 38224/03) 14 September 2010, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 104 Schöpfer v Switzerland (App no 25405/94) 20 May 1998, ECHR 1998-III . . . . . . . . . . . . . . . . . 153 Scoppola v Italy (No 2) [GC] (App no 10249/03) 17 September 2009, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 203 Sildedzis v Poland (App no 45214/99) 24 May 2005, unreported . . . . . . . . . . . . . . . . . . . . . . . . . 118 Siliadin v France (App no 73316/01) 26 July 2005, ECHR 2005-VII . . . . . . . . . . . . . . . . . . . . . 196 Silver and ors v United Kingdom (App no 5947/72) 25 March 1983, Series A no 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 93, 152, 201 Sisojeva and ors v Latvia [GC] (App no 60654/00) 15 January 2007, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Sitaropoulos and Giakoumopoulos v Greece [GC] (App no 42202/07) 15 March 2012, ECHR 2012 not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Soering v United Kingdom [Pl] (App no 14038/88) 7 July 1989, Series A no 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 196, 213 Sovtransavto Holding v Ukraine (App no 48553/99) 25 July 2002, ECHR 2002-VII . . . . . . . . . . 148 Špacek, S.R.O. v The Czech Republic (App no 26449/95) 9 November 1999, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Stafford v United Kingdom [GC] (App no 46295/99) 28 May 2002, ECHR 2002-IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 159 Stankov and the United Macedonian Organisation Ilinden v Bulgaria (App no 29221/95) 2 October 2001, ECHR 2001-IX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

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Steel and ors v United Kingdom (App no 24838/94) 23 September 1998, ECHR 1998-VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 90, 154, 199 Stere and ors v Romania (App no 25632/02) 23 February 2006, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 118, 148, 199 Stjerna v Finland (App no 18131/91) 24 October 1994, Series A no 299-B . . . . . . . . . . . . . . . . . 182 Stran Greek Refineries and Stratis Andreadis v Greece (App no 13427/87) 9 December 1994, Series A no 301-B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Streletz, Kessler and Krenz v Germany [GC] (App no 34044/96) 22 March 2001, ECHR 2001-II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Sunday Times v United Kingdom [Pl] (App no 6538/74) 26 April 1979, Series A no 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 125, 153, 177 Sutyazhnik v Russia (App no 8269/02 ) 23 July 2009, unreported . . . . . . . . . . . . . . . . . . . . . . . . 149 Svetlana Naumenko v Ukraine (App no 41984/98) 9 November 2004, unreported . . . . . . . . . . . . 148 Sylvester v Austria (App no 36812/97) 24 April 2003, unreported . . . . . . . . . . . . . . . . . . . . . . . . 183 Taşkın and ors v Turkey (App no 46117/99) 10 November 2004, ECHR 2004-X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Tysiąc v Poland (App no 5410/03) 20 March 2007, ECHR not yet reported . . . . . . . . . . . . 182, 184 United Communist Party of Turkey and ors v Turkey [GC] (App no 19392/92) 30 January 1998, ECHR 1998-I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 196 United Macedonian Organisation Ilinden and ors v Bulgaria (App no 59491/00) 19 January 2006, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Uzun v Germany (App no 35623/05) 2 September 2010, ECHR not yet reported . . . . . . . . . . . . 100 Van de Hurk v The Netherlands (App no 16034/90) 19 April 1994, Series A no 288 . . . . . . . . . . . 166 Vaudelle v France (App no 35683/97) 30 January 2001, ECHR 2001-I . . . . . . . . . . . . . . . . . . . . 199 VC v Slovakia (App no 18968/07) 8 November 2011, ECHR 2011 . . . . . . . . . . . . . . . . . . . . . . . 184 Velikovi and ors v Bulgaria (App no 43278/98) 15 March 2007, unreported . . . . . . . . . . . . . . . . . 119 Vereinigung Demokratischer Soldaten Österreichs and Gubi v Austria (App no 15153/89) 19 December 1994, Series A no 302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Vetter v France (App no 59842/00) 31 May 2005, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Vgt Verein Gegen Tierfabriken v Switzerland (App no 24699/94) 28 June 2001, ECHR 2001-VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Vilho Eskelinen and ors v Finland [GC] (App no 63235/00) 19 April 2007, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Vlasov v Russia (App no 78146/01) 12 June 2008, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Volkova v Russia (App no 48758/99) 5 April 2005, unreported. . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Volokhy v Ukraine (App no 23543/02) 2 November 2006, unreported . . . . . . . . . . . . . . . . . 104, 152 Waite and Kennedy v Germany [GC] (App no 26083/94) 18 February 1999, ECHR 1999-I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 92, 138 Wallishauser v Austria (App no 156/04) 17 July 2012, unreported . . . . . . . . . . . . . . . . . . . . . . . . 144 Wingrove v United Kingdom (App no 17419/90) 25 November 1996, ECHR 1996-V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 187 Winterwerp v The Netherlands (App no 6301/73) 24 October 1979, Series A no 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 81, 200 Young, James and Webster v United Kingdom [Pl] (App no 7601/76) 13 August 1981, Series A no 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Yumak and Sadak v Turkey (App no 10226/03) 30 January 2007, unreported . . . . . . . . . . . . . . . 195 Yumak and Sadak v Turkey [GC] (App no 10226/03) 8 July 2008, ECHR not yet reported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Z and ors v United Kingdom [GC] (App no 29392/95) 10 May 2001, ECHR 2001-V . . . . . . . . . 196 Zdanoka v Latvia [GC] (App no 58278/00) 16 March 2006, ECHR 2006-IV . . . . . . . . . . . 117, 195 Zhechev v Bulgaria (App no 57045/00) 21 June 2007, unreported . . . . . . . . . . . . . . . . . . . . . . . . . 89 Zielinski and Pradal and Gonzalez and ors v France [GC] (App no 24846/94) 28 October 1999, ECHR 1999-VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

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Altmann (Barbie) v France EComHR [Pl] (App no 10689/83) 4 July 1984, 37 DR 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Ashingdane v United Kingdom EComHR [Pl] (App no 8225/78) 12 May 1983, Series B no 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Austria v Italy EComHR (App no 788/60) 11 January 1961, Recueil 7 . . . . . . . . . . . 23–74, 10, 208 Benthem v The Netherlands EComHR [Pl] (App no 8848/80) 8 October 1983, Series B no 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 134 Boyle and Rice v United Kingdom EComHR [Pl] (App no 9659/82) 7 May 1986, Volume 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Gerhard Klass and ors against the Federal Republic of Germany EComHR [Pl] (App no 5029/71) 9 March 1977, Series B no 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 177 Golder v United Kingdom EComHR [Pl] (App no 4451/70) 1 June 1973, Series B no 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Joseph Kaplan v United Kingdom EComHR [Pl] (App no 7598/76) 17 July 1980, 21 DR 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Morissens v Belgium EComHR (App no 11389/85) 3 May 1988, 56 DR 132 . . . . . . . . . . . . . . . . 91 Ringeisen v Austria EComHR [Pl] (App no 2614/65) 19 March 1970, Series B no 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 134 Van der Heijden v The Netherlands EComHR [Pl] (App no 11002/84) 8 March 1985, 41 DR 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Vandam et Lacroix v La Belgique EComHR [Pl] (App no 19038/91) 28 June 1993, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 X v Les Pays Bas EComHR (App no 2621/65) 1 May 1966, Recueil 19 . . . . . . . . . . . . . 100–105, 80 X v La République fédérale d'allemagne EComHR (App no 1169/61) 24 September 1963, Recueil 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–41, 80 X v United Kingdom EComHR [Pl] (App no 7308/75) 12 October 1978, 16 DR 32 . . . . . . . . . . 201 Zand v Austria EComHR [Pl] (App no 7360/76) 12 October 1978, 15 DR 70 . . . . . . . . . . . . . . 167 Zihlmann v Switzerland EComHR (App no 21861/93) 28 June 1995, 82-B DR 12 . . . . . . . . . . . 91 GERMAN FEDERAL CONSTITUTIONAL COURT Order of the Second Senate Federal Constitutional Court, 14 October 2004, 2 BvR 1481/04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Federal Constitutional Court, 30 June 2009, 2 BvE 2/08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 INTERAMERICAN COURT OF HUMAN RIGHTS Advisory Opinion Oc-6/86, the Word ‘Laws’ in Article 30 of the American Convention on Human Rights 9 May 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 COUNCIL OF EUROPE Committee of Ministers, Interim Resolution DH (2001) 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Committee of Ministers, ‘On Independence, Efficiency and Role of Judges’ Recommendation no R(94)12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 168 Committee of Ministers, ‘Recommendation Rec (2004) 20’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Committee of Ministers, ‘Recommendation Rec (2003) 17’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Committee of Ministers, ‘Recommendation of the Committee of Ministers to Member States on the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship’ Strasbourg, COE (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 178

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UNITED KINGDOM SUPREME COURT R. v Horncastle and ors (2009) UKSC 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 R. (Ullah) v Special Adjudicator (2004) UKHL 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 UNITED NATIONS UN Secretary General, ‘Strengthening the Rule of Law, Report of the Secretary General’ A/57/275 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 UNGA, ‘United Nations Millenium Declaration’ A/RES/55/2 (2000) . . . . . . . . . . . . . . . . . . . . . . . 7 UNGA, ‘Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms’ A/RES/32/130 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 UNGA, ‘Declaration on the Occasion of the 25th Anniversary of the United Nations’ A/RES/2627(XXV) (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 UNGA, ‘In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General’ A/59/2005 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7 UNGA, ‘Report of the Secretary-General on the Work of the Organisation’ A/58/1 (2003) . . . . . . .7 UNGA, ‘Road Map Towards the Implementation of the United Nations Millennium Declaration: Report of the Secretary-General’ A/56/326 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 7 UNGA, ‘Strengthening and Coordinating United Nations Rule of Law Activities’ A/RES/65/318 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 185 UNGA, ‘Strengthening and Coordinating United Nations Rule of Law Activities’ A/RES/64/298 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 UNGA, ‘Strengthening the Rule of Law’ A/RES/51/96 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 UNGA, ‘Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law: Report of the Secretary General’ A/61/636 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 UNGA, ‘Vienna Declaration and Programme of Action’ A/CONF.157/23 (1993). . . . . . . . . . . . . 60 UNGA, ‘World Summit Outcome’ A/RES/60/1 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7 UNSC, ‘Threats to International Peace and Security Caused by Terrorist Acts’ S/RES/1904 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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List of Abbreviations CCJE CEPEJ CoE Convention EComHR ECHR ECtHR EU FCC GC ICJ ICTY Pl UN UNGA UNSC

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Consultative Council of European Judges European Commission for the Efficiency of Justice Council of Europe European Convention on Human Rights European Commission of Human Rights Reports of Judgments and Decisions of the European Court of Human Rights European Court of Human Rights European Union German Federal Constitutional Court Grand Chamber of the European Court of Human Rights International Court of Justice International Criminal Tribunal for the former Yugoslavia Plenary Court of the European Court of Human Rights United Nations United Nations General Assembly United Nations Security Council

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La construction de la théorie de l’État de droit n’est pas le fait du hasard ou le produit d’une logique purement interne au champ juridique: la théorie s’est épanouie sur un certain terreau idéologique, enracinée dans une certaine réalité sociale et politique; privée de ce substrat, coupée de ces références, elle n’apparaît plus que comme une coquille vide, un cadre formel et devient à proprement parler ‘insignifiante’.1 Über die Wichtigkeit grundlegender politischer Wertvorstellungen sind wir uns im Streite einig.2 Anders als der einzelne Mensch sind politische Ordnungsformen in ihrer konkreten Bestimmtheit nicht ‘Zweck an sich selbst’, sondern Einrichtungen woraufhin.3

1

Jacques Chevallier, L’État de droit, 4th edn (Paris: Montchrestien, 2003) at 52. Neil MacCormick, ‘Der Rechtsstaat und die Rule of Law’ (1984) Juristenzeitung 39 at 70. 3 Ernst-Wolfgang Böckenförde, ‘Ist Demokratie eine Notwendige Forderung der Menschenrechte?’ in Stefan Gosepath and Georg Lohmann (eds), Philosophie der Menschenrechte (Frankfurt am Main: Suhrkamp, 1998) at 240. 2

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1 Introduction 1 Background of the Research 1.1 The upsurge of the rule of law debate This book is about the rule of law as a concept of the European Convention on Human Rights1 (‘the Convention’). Thus the rule of law is analysed in this research beyond the states in which it has developed. The main research focus is the case law of the European Court of Human Rights (‘ECtHR’, ‘the Strasbourg Court’, or simply ‘the Court’). The rule of law is a public law concept and it concerns the manner in which we ideally want to organize our society through law. The rule of law can be defined in different ways and can include different elements. Notwithstanding differences in definitions, certain elements and aims are inherent to the concept. As will be explained in more detail in Chapter 2, the rule of law is necessarily concerned with the control of public power through law and is aimed at the protection of the individual. The rule of law is of central importance to the Convention, and the ECtHR frequently refers to the rule of law in its rulings. The ECtHR does not stand alone in its attention for the rule of law. The background of this research is the increased attention for the rule of law concept in literature on international law.2 Following the end of the Cold War, regard for the rule of law received an impetus; at the time, political changes led to an optimistic belief in the liberal democratic state as a universal value.3 There is also considerable attention paid to the rule of 1 Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953. 2 ‘The concept [of the rule of law] is suddenly everywhere—a venerable part of Western political philosophy enjoying a new run as a rising imperative of the era of globalisation.’ Thomas Carothers, ‘The Rule of Law Revival’ (1998) Foreign Affairs 77(2) 95–106; Rosalyn Higgins, ‘The ICJ and the Rule of Law’ (2007), speech held at the United Nations University; James Crawford, ‘International Law and the Rule of Law’ (2003) Adelaide Law Review 24, 3–12; Ian Brownlie, The Rule of Law in International Affairs:  International Law at the Fiftieth Anniversary of the United Nations (The Hague: Martinus Nijhoff Publishers, 1998); Sir Arthur Watts, ‘The International Rule of Law’ (1993) German Yearbook of International Law 36, 14–45. 3 F. Fukuyama, The End of History and the Last Man (London: Penguin, 1992). Susan Marks criticizes Fukuyama’s liberal millenarism, because the optimistic, progressive view does not allow enough room for criticism of liberalism, as it provides an overly simplified form of liberalist democracy (as if one uniform form exists) and does not acknowledge the inherent tension between democracy and liberalism and the different forms that liberalism can take. Susan Marks, ‘The End of History? Reflections on Some International Legal Theses’ (1997) European Journal of Interntional Law 8(3), 449–77.

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law within many international organizations. The increased consideration for the rule of law within international organizations may be explained by the perceived neutrality of the rule of law concept. As a frame of reference for development policy, the rule of law is at times preferred over human rights in order to avoid some of the criticism concerning the perceived Western cultural bias towards the latter. In addition, there has been a widespread acknowledgement of the existence of a stable legal system and enforceable laws as prerequisites to the furtherance of the goals of international organizations, such as economic development and peace building.4 The greater regard for the rule of law within international law goes hand in hand with the greater influence of international law over the national rule of law. International law has developed from a law of coordination and abstention to a law of cooperation and action.5 The subject matter regulated by international law has expanded. International law no longer merely binds states in their mutual relations, but has impact on the functioning of the internal juridical order of states. This development affects the functioning of the rule of law within states. Specifically, the influence of international and European law on the national rule of law is noticeable in European states.6 Although the rule of law was developed within the context of national states and was seen to function in an independent structure, its functioning is influenced by, and is in part dependent on, international law. International law, especially human rights law, has strengthened the national rule of law.7 The codification of human rights in international treaties binding on states has strengthened the position of the individual vis-à-vis his or her government. These treaties set limits on the manner in which governmental power may be exercised, and independent legal procedures have been set, and they provide a form of external control. At the same time, the growing importance of international law and the exercise of governmental powers at the international level also put pressure on the rule of law at the national level.8 States have transferred some of their authority to international organizations.9 An important example is the listing by the Sanctions Committee of the United Nations (‘UN’) Security Council of suspected terrorists, whereby their assets are frozen.10 Although individuals can request delisting through an Ombudsman,11 this entity is not empowered to make binding decisions on listings 4 Sabine Schlemmer-Schulte, ‘The World Bank’s Role in the Promotion of the Rule of Law in Developing Countries’ in Sabine Schlemmer-Schulte and Ko-Yung Tung (eds), Liber Amoricum Ibrahim F.I. Shihata, International Finance and Development Law (The Hague: Kluwer Law International, 2001) at 690. 5 Georges Abi-Saab, ‘Whither the International Community’ (1998) European Journal of International Law 9(2) 248–65. 6 Jacques Chevallier, L’État de droit, 4th edn (Paris: Montchrestien, 2003) at 91. 7 David Dyzenhaus, ‘The Rule of (Administrative) Law in International Law’ (2005) Law and Contemporary Problems 68(3–4) 127; James Crawford (2003) at 4. 8 Wetenschappelijke Raad voor het Regeringsbeleid, De Toekomst van ve Nationale Rechtsstaat (The Hague: SDU Uitgevers, 2002). 9 Werner J. Feld, Robert S. Jordan, and Leon Hurwitz, International Organisations, A Comparative Approach, 3rd edn (Westport: Praeger, 1994). 10 Erika de Wet and Andre Nollkaemper (eds) and Petra Dijkstra (assistant ed), Review of the Security Council by Member States (Antwerp: Intersentia, 2003). 11 UNSC, ‘Threats to International Peace and Security Caused by Terrorist Acts’ (2009) S/RES/1904 at 20–1.

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or even to make recommendations to the Sanctions Committee.12 Furthermore, the increased importance of international law affects the national rule of law because it affects the national balance of power.13 National parliamentary control over the international legislative process is weaker than it is over the domestic legislative process, and thus the balance of power between parliament and the executive is affected negatively.14 To sum up, international law increasingly influences the national rule of law, both in a positive and in a negative sense. Much attention is also paid to the concept of the rule of law in international law in literature and by international organizations. These are both reasons for analysing the rule of law as a concept of international law.

1.2 The rule of law as a standard for the international legal system In the sections 1.2 and 1.3 the different functions and forms in which the rule of law concept takes shape in international law will be discussed. This will provide a background for the more in-depth discussion of how the rule of law functions in the framework of the Convention. This will also clarify that the Convention is one of the best contexts in which to analyse the rule of law as an international law concept. There are two different views of the rule of law in international law: one that sets standards for the international legal system, and one that sets standards for the national legal system.15 The rule of law as a standard for the international legal system has a different nature from the rule of law, as defined by international law, as a standard for national law. For conceptual reasons it is, thus, appropriate to clearly distinguish them.16 The international rule of law that sets standards for the national rule of law is concerned with the rule of law as a national constitutional concept. This concept, first, sets standards for the organization of the state—demanding, for instance, that there are adequate judicial institutions that protect human rights—and also demands that the state abides by international legal norms within its national legal order. The rule of law as a standard for the international legal order is concerned with control of the sovereign power of states, as well as control of the power of international organizations, such as the UN Security Council. There are difficulties in conceptualizing the rule of law as a standard for the international legal order. As noted, the rule of law concerns the control of public power through law with the aim of protecting the individual.17 Also, as a concept 12 UN General Assembly, ‘Strengthening and Coordinating United Nations Rule of Law Activities’ (2010) A/RES/65/318 at 93. 13 Wetenschappelijke Raad voor het Regeringsbeleid, De Toekomst van de Nationale Rechtsstaat (The Hague: SDU Uitgevers, 2002) 79–80. 14 Wetenschappelijke Raad voor het Regeringsbeleid (2002). 15 Simon Chesterman, ‘ “I’ll Take Manhattan”:  The International Rule of Law and the United Nations Security Council’ (2009) Hague Journal on the Rule of Law 1(1) 68–9. 16 However, at the same time it is increasingly necessary to analyse both the concepts in relation to each other. Andre Nollkaemper, ‘The Internationalized Rule of Law’ (2009) Hague Journal on the Rule of Law 1(1) 74–8. 17 Jeremy Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ (2011) European Journal of International Law 22(2) 315–43.

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of international law, the rule of law is understood as a limitation of discretionary governmental power, and legality demands that that power is only exercised on the basis of law.18 As a consequence, the first question which arises is the following— which public power should the rule of law control within the international legal order and how? Problematic in this regard is the fact that the international legal system is still mainly structured horizontally.19 On the international level, there is no centralized hierarchical power that can ensure the application of the law.20 In the context of international law, the rule of law is mainly concerned with the conditions under which the power of states is exercised.21 At the same time, the possibilities that exist within international law to ensure compliance with the law are mainly dependent upon states.22 Furthermore, one of the central concepts of the rule of law is the equal application of the law. As noted, the control of state power through law is essential to any rule of law concept. However, states are not equal in power and strength, and this creates serious problems for the functioning of the rule of law in the international legal system.23 Solving the problem of how to control power at the international level is often pursued through the strengthening of international institutions. The international rule of law is, therefore, often understood as requiring the strengthening of international institutions by the enhanced participation of states in international fora and increased acceptance of the jurisdiction of the International Court of Justice (‘ICJ’).24 Establishing compulsory jurisdiction of the ICJ would strengthen its position and, thus, the independence of international adjudication, and enhance the enforcement of international rules.25 Strengthening existing international institutions could, therefore, further the international rule of law.

18

Ian Brownlie (1998) at 37, 213. For a contrary view see Nardin. According to Nardin, what is important is whether the subjects of the law acknowledge the law’s authority, and not the existence of a central authority. Terry Nardin, ‘Theorising the International Rule of Law’ (2004) Review of International Studies 34, 385–401. 20 Watts writes that it is the ‘sovereign independence of states which needs to be balanced by the international rule of law.’ Sir Arthur Watts (1993) at 23. 21 Ian Brownlie (1998) at 37. 22 The law of state responsibility is one of the means through which compliance with the law can be realized and is, thus, an important element of the international rule of law (Ian Brownlie (1998) at 79); Borstjan M. Zupancic, ‘Adjudication and the Rule of Law—“Power of Logic” v.  “Logic of Power”—“Rule of Law” v. “Law and Order” ’ (2003) European Journal of Law Reform V(1/2) 35. 23 Kooijmans explains the importance of the doctrine of the legal equality of states for the normative power of international law. He recognizes the existence of great disparities in actual power between states. At the same time he argues that without legal equality, international law would not be law, because equality is inherent in law itself. Without equality, the law ‘generates into arbitrariness’. Furthermore, without the legal equality of states, the law would be merely sanctioning facts (of power disparities). P.H. Kooijmans, The Doctrine of the Legal Equality of States, and Inquiry into the Foundations of International Law (Leiden: A.W. Sijthoff, 1964) at 94–113 (and especially at 101); see also Ian Brownlie (1998) at 214. 24 UN General Assembly, ‘In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-General’ (2005) A/59/2005 at 136; UN General Assembly, ‘World Summit Outcome’ (2005) A/RES/60/1 at 134. 25 Rosalyn Higgins (2007) at 7. 19

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At the same time, the rule of law demands a limitation of powers, and the control of powers exercised by international organizations is also problematic. The international rule of law demands that the power of existing international institutions and, especially, the UN Security Council, is limited by law and subjected to judicial review.26 At present, the UN Security Council is the international institution with most far-reaching enforcement powers, and no real external control. The ICJ does not have the power to exercise judicial review over the organs of the UN. The absence of such a review procedure in the context of the UN is problematic,27 as is the lack of a clear limitation of the powers of the Security Council.28 Moreover, the limited membership of the Security Council and the lack of consistency in the sanctions regimes imposed by the Security Council indicate that equality before the law is lacking.29 Second, the rule of law is aimed at the protection of the individual from arbitrary governmental power.30 Thus the question arises as to how the rule of law can further this aim, given that states are the principle subjects of international law while individuals have only limited international legal personality.31 The rule of law is essentially based on a view of society centred on the individual.32 However, international law is still mainly directed at states, because states are the original subjects of international law that have objective legal personality.33 States should be seen as agencies of international law analogous to officials and agencies in the national legal order: not entitled to the protection of the requirements of legality or to freedom under the law to do what is not forbidden.34 How this should be achieved remains unclear. Also, the rule of law and human rights are inextricably bound together.35 However, in the international legal system the protection of human rights paradoxically depends upon the cooperation of states for its effectiveness.36 Human rights law is at points even difficult to reconcile with aspects of general international law.37 One can argue whether international law—as law that is mainly concerned with the coexistence of states—is reconcilable with the development of common values, such as human rights values.38

26 Crawford also considers as problematic the arbitrariness of international judicial decision-making through ad hoc panels and the existence of de facto powers within states that are not subject to the control of law. James Crawford (2003). 27 Ian Brownlie (1998) at 214, 226; James Crawford (2003). 28 29 Ian Brownlie (1998) at 217–25. Rosalyn Higgins (2007). 30 Sir Arthur Watts (1993) at 16. 31 Malcolm N. Shaw, International Law (Cambridge: Cambridge University Press, 2003) at 232. 32 See further Chap 2, sect 2.2 and specifically text around n 25. 33 Malcolm N. Shaw (2003) at 242; J.E. Nijman, The Concept of International Legal Personality (The Hague: T.M.C. Asser, 2004) 458. 34 35 Jeremy Waldron (2011). UN General Assembly (2005) A/59/2005 at 128. 36 Ian Brownlie (1998) at 65. 37 Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) Leiden Journal of International Law 15 at 569. 38 According to Prosper Weil, international law serves the dual function of enabling coexistence between heterogeneous and equal states, and also the realization of common aims. These two functions can only be fulfilled, according to Weil, if international law is neutral with regard to morality, ideology,

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The conceptual difficulties that are connected to the definition of the rule of law as a concept of international law should not lead one to disavow the possibility of an international rule of law concept. A growing consensus on ‘a conception of justice based upon recognition of the equality and freedom of all persons’ can be observed.39 Also, the importance of the development of the rule of law as a standard for the international legal system cannot be overstated.40 However, the differences between the rule of law as a concept of national law and as a concept of international law must be acknowledged and taken into consideration. An international rule of law concept aimed at the constraint of arbitrary power must take into account that no central power yet exists that can enforce the law. Thus, the question of whether the rule of law should aim at the limitation of the existing power, or at institution building, must be addressed.41 Furthermore, the rule of law has to take into account that the protection of the individual from arbitrary power must take shape in an international system that is still mainly state-centred.

1.3 An international rule of law standard directed at states The reports and documents of international organizations on the rule of law emphasize the need to build the national rule of law and improve the effectiveness of existing rule of law traditions. In other words, the rule of law is mostly understood within international organizations as an international standard aimed at improving the legal system on the state level.42 Both governmental and non-governmental international organizations are involved in assisting states in building the rule of law.43 International organizations that focus on the rule of law often do not apply the rule of law as a standard for the organization itself. This may give rise to difficulties in the long run because states may not tolerate the influence of international organizations that do not themselves conform to rule of law standards.44 The approaches of international organizations to the rule of law differ with regard to the extent of their involvement with the domestic legal systems they aim to improve. Some international organizations are actively and structurally involved in the legal systems of states and could be seen as part of a multi-layered constitutional system. The Council of Europe (‘CoE’), as will be discussed, is an example. In contrast, development projects set up under the heading of rule of law assistance are often not permanent or structural, and are also more dependent on policy decisions to continue their funding. The approaches of international organizations also differ in and religion. Prosper Weil, ‘Towards Relative Normativity in International Law’ (1983) American Journal of International Law 77 at 413. 39 Allen Buchanan and David Golove, ‘Philosophy of International Law’ in Jules Coleman, Scott Shapiro, and Kenneth Himma (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) at 876. 40 41 James Crawford (2003) at 9. Sir Arthur Watts at 23. 42 Amichai Magen, ‘The Rule of Law and Its Promotion Abroad: Three Problems of Scope’ (2009) Stanford Journal of International Law 45 at 84. 43 Amichai Magen (2009) at 77; Shannon M. Roesler, ‘The Ethics of Global Justice Lawyering’ (2010) Yale Human Rights and Development Law Journal 13 at 185. 44 James Crawford (2003) at 9.

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the degree to which the rule of law is instrumental in furthering other aims of the organization.45 The UN is one of the primary examples of an international governmental organization that pays heed to the rule of law. The UN approach to the rule of law is multifaceted, because it is directed towards both the national and the international level.46 The UN also applies its rule of law standard to its own organization, although only in a marginal sense. A  judicial system has been set up to review administrative decisions of the organization; also, the terrorist-listing procedures have been assessed.47 Even so, the rule of law is not advanced to assess pressing issues such as the balance of powers between the main organs. The UN has, however, set up a Rule of Law Coordination and Resource Group to ensure coherence in its approach to the rule of law. On the international level, the UN is concerned with increasing the effectiveness of the treaty system and the International Court of Justice, and also with state compliance with human rights treaty obligations.48 The protection of human rights is essential to the rule of law in the context of the UN, both in the national and the international context.49 The UN focuses its rule of law efforts mostly on improving the rule of law on the national level. States are seen as the most important actors that are able to protect individuals through the rule of law.50 The rule of law is considered an indispensable tool to enable national protection of international norms, such as human rights norms.51 In this way the UN connects the rule of law primarily with the domestic legal system. Rule of law projects concern development, poverty alleviation, and post-conflict peace building.52 The framing of constitutions, improving national institutions, and ensuring access to justice are also important aspects of the rule of law efforts of the UN.53 Thus the rule of law is understood as an international legal standard that is set for domestic legal systems. The UN is also actively and structurally involved in various ways in the legal systems of the member states, for instance through human rights monitoring carried out by the human rights treaty bodies.

45 Stephen Humphreys, Theatre of the Rule of Law, Transnational Legal Intervention in Theory and Practice (Cambridge: Cambridge University Press, 2010) at 9–10. 46 UN General Assembly (2010) A/RES/65/318. 47 UN General Assembly, ‘Strengthening and Coordinating United Nations Rule of Law Activities’ (2009) A/RES/64/298 at 92–4. 48 UN General Assembly (2010) A/RES/65/318; UN General Assembly, ‘Report of the Secretary-General on the Work of the Organisation’ (2003) A/58/1 at 191–2; UN General Assembly, ‘Road Map Towards the Implementation of the United Nations Millennium Declaration: Report of the Secretary-General’ (2001) A/56/326 at 14; UN General Assembly, ‘Declaration on the Occasion of the 25th Anniversary of the United Nations’ (1970) A/RES/2627(XXV) at 3. 49 UN General Assembly (2005) A/RES/60/1 at 119; UN Secretary General, ‘Strengthening the Rule of Law, Report of the Secretary General’ (2002) A/57/275 at 9; UN General Assembly, ‘United Nations Millenium Declaration’ (2000) A/RES/55/2 at 6. 50 UN General Assembly (2001) A/56/326 at 15; UN General Assembly (2005) A/59/2005 at 19. 51 UN General Assembly, ‘Strengthening the Rule of Law’ (1996) A/RES/51/96. 52 UN General Assembly, ‘Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law: Report of the Secretary General’ (2006) A/61/636 at 5, 7. 53 UN General Assembly (2010) A/RES/65/318 at 10–14.

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The World Bank and the CoE are other examples of international organizations that pay heed to the rule of law. The rule of law concept of the World Bank is mainly concerned with development.54 The World Bank places most emphasis on the development of property rights and the judicial means to protect them.55 The efforts of the CoE concerning the rule of law may be described as involved, on a structural basis, in monitoring the rule of law standard in the signatory states. The CoE has, for instance, set up organizations such as the Consultative Council of European Judges and the European Commission for the Efficiency of Justice (‘CEPEJ’). These organizations further the level of cooperation between European judges through the exchange of detailed information and the development of common standards.56 At the same time, the CoE has also played an important role in legal development projects, especially in Eastern European states.57 When the rule of law is linked to development, two problematic issues arise. First, the rule of law is defined in very diverse ways.58 International organizations do not make great efforts to circumscribe their view of the rule of law. All sorts of notions seem to be included. Sometimes, the rule of law is defined in a very broad manner, lacking focus.59 Also, scholars have noted that there are two different conceptions of the rule of law: one oriented towards democracy and human rights, and the other aimed at the market.60 The CoE could be seen as an exponent of the first and the World Bank of the latter. Due to the great diversity in rule of law approaches, both within and between international organizations, the rule of law becomes a sort of ‘container concept’, and may ultimately lose normative force.61 Secondly, rule of law development projects are generally undertaken in countries where there is little rule of law tradition. The connection between the rule of 54

Sabine Schlemmer-Schulte (2001) at 690, 722. Ibrahim F.I. Shihata, The World Bank in a Changing World, Vol. II (The Hague: Martinus Nijhoff Publishers, 1995) at 58. 56 An example is the evaluation report on the European judicial systems drawn up by CEPEJ, which contains detailed information on the functioning of the justice systems in the European states, such as the availability of IT equipment in the courts and the possibility for judges and prosecutors to have another professional activity. Council of Europe, ‘European Judicial Systems’ (2006 edn) (2004 data), European Commission for the Efficiency of Justice, 5 October 2006 (available at ) (last accessed 28 June 2011). 57 The Council of Europe has created a special programme devoted to legal cooperation, called ‘Themis’, to strengthen the rule of law in Eastern European countries. Diana Pinto, ‘Assisting Central and Eastern Europe’s Transformation’ in Christopher Kevin Boyle (ed), The Challenges of a Greater Europe, the Council of Europe and Democratic Security (Strasbourg:  Council of Europe Publishing, 1996) at 52; Florence Benoît-Rohmer and Heinrich Klebes, Council of Europe Law, Towards a Pan-European Legal Area (Strasbourg: Council of Europe Publishing, 2005) at 117. 58 Daniel B. Rodriguez, Mathew D. McCubbins, and Barry R. Weingast, ‘The Rule of Law Unplugged’ (2010) Emory Law Journal 59, 1455–94. 59 An example is the way in which the rule of law features in UN documents and reports (Rosalyn Higgins (2007)). 60 Jan Michiel Otto, ‘Dutch Legal Cooperation and Paradigm Changes in the International Field’ presented at the CILC’s 20th Anniversary Conference, ‘Applying the “Sectoral Approach” to the Legal and Judicial Domain’ (The Hague: Center for International Legal Cooperation, 2005) at 29; Stephen Humphreys (2010) at 20. 61 Rachel Kleinfeld Belton, ‘Competing Definitions of the Rule of Law, Implications for Practitioners’, Carnegie Papers, Rule of Law Series (Washington DC: Carnegie Endowment for International Peace, 2005) at 6. 55

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law and development brings to the fore the questions of how the rule of law can be implemented, and where to start.62 The rule of law development movement is often directed at empowering local people and furthering local development.63 However, such projects face difficulties because the rule of law presupposes the existence of a viable state and the acceptance of law as a means of social organization.64 Without at least a minimum degree of social stability, the existence of a viable legal system cannot be envisaged.65 Also, the rule of law needs some form of ownership of the law by the people, because the rule of law requires respect for the law by those who rule and those who are ruled.66 Rule of law development projects encounter problems such as the unwillingness of a local population to change the legal system.67 Such difficulties show that the rule of law is dependent on shared legal values and traditions.68 It is these values and traditions which provide a sense of ownership of the law by the people. The ECtHR is an international court that functions as an organ of the CoE. This international organization does not face such difficulties regarding the contents of the rule of law or the existence of a rule of law tradition. The rule of law is part of the political heritage of the European states that founded the CoE. A common tradition concerning the rule of law already exists.

2 Focus of the Research 2.1 The European Convention on Human Rights The focus of this research will be the rule of law concept in relation to the case law of the ECtHR. As such, it highlights a rule of law standard, as defined by international law, for the national legal order. It also examines a standard that has been developed through an organ of an international organization. The Convention was drafted in 1950 by the then newly formed CoE. It was conceived as a protection against the upsurge of communism and was seen as a means of preventing the recurrence of the serious human rights violations witnessed during the Second World War.69 The Convention entered into force on 3 September 1953. All CoE member states are party to the Convention. When Protocol 11 came 62 According to Carothers, their different approaches are concentrating on rewriting specific bodies of law; strengthening law-related institutions, such as police, prosecutors, public defenders, and prisons; and achieving the government’s compliance with law, mainly by focusing on judicial independence. Thomas Carothers (1998) at 99–100. 63 Monique Nuijten, ‘Recht in “Ontwikkeling”. De Impositie van de “Rule of Law” Agenda in Ontwikkelingslanden’ (2002) Recht der Werkelijkheid 28(2) at 54. 64 65 See Chap 2, sect 2.1, n 8. Amichai Magen (2009) at 72. 66 Thomas Carothers (1998) at 96; Shannon M. Roesler (2010) 13 at 211. 67 Thomas Carothers, ‘Promoting the Rule of Law Abroad, the Problem of Knowledge—Working Paper’ (2003) Carnegie Endowment of International Peace—Rule of Law Series. 68 Stephen Humphreys (2010) at 14. 69 Clare Ovey and Robin C.A. White, The European Convention on Human Rights, 5th edn (Oxford: Oxford University Press, 2010) 1; David Harris, Michael O’Boyle, and Colin Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford: Oxford University Press, 2009) at 4.

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Introduction

into force on 1 November 1998, a permanent Court was instituted, with full-time judges. The present ECtHR replaced the then existing European Commission of Human Rights (‘EComHR’, or ‘the Commission’) and the former European Court of Human Rights. Since the coming into force of Protocol 11, individuals have had full standing before the Court and can apply directly to it.70 The function of the Strasbourg Court could be said to be equivalent to that of an organ of the CoE. The Court was set up within the framework of the CoE and operates within its structure.71 The ECtHR refers to instruments of the CoE organs— in particular, to resolutions of the Committee of Ministers and the Parliamentary Assembly—to support its reasoning when interpreting the Convention.72 The Convention has had great influence on the constitutional systems of the European states. The Strasbourg Court is often described as a European constitutional court and the Convention as a European Bill of Rights.73 The Court itself has described the Convention as ‘a constitutional instrument of European public order in the field of human rights’.74 According to the EComHR, the existence of a European public order is intended to safeguard the common European heritage of political traditions, ideals, freedom, and the rule of law.75 It can be said that the ECtHR has become part of the constitutional landscape of Europe, both on the national and the (regional) international level. The advantage of a European focus for research into the rule of law is the opportunity to analyse this concept in a context in which there is a generally accepted view on the rule of law. Within European states there is—at least to a certain degree—a common legal tradition and history. Also, at the European level, an international rule of law builds upon an existing rule of law tradition. The rule of law has been developed in European states. Those European states where the concepts of the rule of law and État de droit have been developed—the United Kingdom and France, respectively—are founding members of the CoE. Germany, where the Rechtsstaat was developed, became a member soon after its founding. Moreover, under the influence of the case law of the ECtHR the conceptions on the rule of law in the different European states have grown more alike. 70

David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 10–12. Paul Mahoney, ‘Separation of powers in the Council of Europe:  The Status of the European Court of Human Rights vis-à-vis the Authorities of the Council of Europe’ (2003) Human Rights Law Journal 24(5–8) at 261. 72 Demir and Baykara v Turkey, (GC), App no 34503/97, 12 November 2008, at 74–75 (not yet reported). 73 Ed Bates, The Evolution of the European Convention on Human Rights, From its Inception to the Creation of a Permanent Court of Human Rights (Oxford:  Oxford University Press, 2010) at 157, 355; David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 2; Heinrich Klebes, ‘Membership in International Organisations and National Constitutional Law: A Case Study of the Law and Practice of the Council of Europe’ (1999) Saint Louis-Warsaw Transatlantic Law Journal 99, 69, at para IV.A; Erika de Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) Leiden Journal of International Law 19, at 611–32. 74 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland, (GC), App no 45036/98, ECHR 2005-VI, 30 June 2005, at 156; Loizidou v Turkey, (GC), App no 15318/89, Series A no 310, 23 March 1995, at 75; Chrysostomos, Parachrysostomou and Loizidou v Turkey, (Pl) App nos 15299/89– 15318/89, 68 DR 216, 4 March 1991, at 22. 75 Austria v Italy, App no 788/60, Recueil 7, 11 January 1961, at 23–74. 71

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The focus of this book also brings a caveat with it. The rule of law standard that will be described here is generally accepted in European states. This entails that this rule of law concept is not necessarily suitable for other regions, for instance in countries where there is political instability or economic deprivation. Also, the focus of this research is not the rule of law as a means of controlling the exercise of power on the international level. It will thus not attempt to answer some of the difficult questions attached to the development of the rule of law as a standard for the international legal system. Even so, the conclusions of this research can benefit the development of a rule of law standard for international law. Finding a generally accepted definition of the rule of law—even if only on a regional level—will be beneficial for the establishment of a generally accepted rule of law definition for the international legal system. The concept of the rule of law that the ECtHR has developed could be an authoritative example for the development of the rule of law in general international law. The rule of law concept in the case law of the ECtHR can set an example of the extent to which international law can influence national law. In this context it is relevant that the Convention and the case law of the ECtHR have authority both in, and outside, the Convention area, evidenced by the fact that international and national courts outside the Convention area refer to its case law.76 Furthermore, the means of strengthening the rule of law on the international legal plane is through strengthening the domestic rule of law. A thriving national rule of law is necessary for the effective functioning of the international rule of law.77 The ECtHR could be an example of how an international rule of law standard can reinforce existing national rule of law traditions.

2.2 The rule of law as a value underlying the Convention The rule of law is one of the central values underlying the Convention.78 The Court has described the rule of law as a ‘notion from which the whole Convention draws its inspiration.’79 The rule of law informs the working of the Convention and is one of the central aims to which it aspires. The ECtHR and the EComHR before

76 Theodor Meron, The Implications of the European Convention on Human Rights for the Development of Public International Law (Strasbourg:  Council of Europe Publishing, 2000) at 8; Anthony Lester, ‘Freedom of Expression’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht:  Martinus Nijhoff Publishers, 1993) at 468; William A. Schabas, ‘L’influence de la Convention européenne des droits de l’homme sur la jurisprudence des Cours suprêmes des pays du commonwealth’ in Jean-François Flauss (ed), L’influence de la Convention européenne des droits de l’homme sur les États tiers (Brussels: Bruylant, 2002) at 46. 77 ‘[F]or the foreseeable future the state is the only available public order system.’ Ian Brownlie (1998) at 37; Rosalyn Higgins (2007) at 11–12. 78 Greer sees the rule of law as one of the primary constitutional principles of the jurisprudence of the ECtHR. The other principles are the ‘effective protection of human rights’ and ‘democracy’. Steven Greer, The European Convention on Human Rights, Achievements, Problems and Prospects (Cambridge:  Cambridge University Press, 2006) at 196, 225; Broniowski v Poland, (GC), App no 31443/96, ECHR 2004-V, 22 June 2004 at 184. 79 Engel and ors v Netherlands, (Pl), App no 5100/71, Series A no 22, 8 June 1976 at 69.

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Introduction

it have referred to the rule of law concept in their rulings. The Court has frequently referred to the rule of law in its recent rulings, and in relation to a large range of areas of law. The rule of law is part of the common heritage of the state parties to the Convention. The rule of law concept is mentioned in the Preamble to the Convention. In the case law, the ECtHR has repeatedly acknowledged that the rule of law is part of the common heritage of European states.80 This fact demonstrates that the Convention is structured upon the assumption that the member states share the same conception of the rule of law.81 Furthermore, the travaux préparatoire show that the rule of law is one of the reasons the signatory governments signed the Convention and, thereby, undertook the obligation to respect the Convention rights.82 The importance attached to the rule of law in the context of the CoE strengthens the role of the rule of law in the context of the ECtHR.83 First, the Statute of the CoE places the rule of law in a central position and demands that member states respect the rule of law.84 The CoE forms the institutional background against which the ECtHR functions. The acceptance of the compulsory jurisdiction of the ECtHR and the binding nature of its judgments is one of the requirements for membership of the CoE.85 When states do not uphold the rule of law nationally, the Committee of Ministers may demand their withdrawal from the CoE.86 Secondly, within the context of the CoE, numerous treaties have been signed which have played an important role in the harmonization of the national laws of European states regarding the basic principles of democracy, the rule of law, and human rights.87 Certain recommendations of the Committee of Ministers have been very effective in harmonizing national law.88 Thus, the member states of the CoE have created a common legal area and achieved greater cohesion, making cooperation in the rule of law field easier.89 The Convention is a treaty signed by states that have a similar view on the rule of law. As such, the rule of law in the context of the Convention is derived from legal standards that already exist on the national level. Thus, by interpreting the Convention in light of common rule of law standards, the Court draws from the

80 Golder v United Kingdom, (Pl), App no 4451/70, Series A no 18,, 21 February 1975 at 34; Ilaşcu and ors v Moldova and Russia, (GC), App no 48787/99, ECHR 2004-VII, 8 July 2004 at 317; Ryabykh v Russia, App no 52854/99, ECHR 2003-IX, 24 July 2003 at 51. 81 Clare Ovey and Robin C.A. White (2010) at 77–8. 82 Council of Europe, Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights/Recueil des Travaux Préparatoires de la Convention Européenne des Droits de L’homme. Vol. 1: Preparatory Commission of the Council of Europe Committee of Ministers, Consultative Assembly, 11 May-8 September 1949 (The Hague: Martinus Nijhoff Publishers, 1975) at 266. 83 Golder v United Kingdom, 21 February 1975 at 34. 84 Statute of the Council of Europe 1949, Art 3. 85 Committee of Ministers, Interim Resolution DH (2001) at 80; Florence Benoît-Rohmer and Heinrich Klebes (2005) at 34. 86 Statute of the Council of Europe 1949, Art 8. 87 Florence Benoît-Rohmer and Heinrich Klebes (2005) at 115. 88 Florence Benoît-Rohmer and Heinrich Klebes (2005) at 13. 89 Florence Benoît-Rohmer and Heinrich Klebes (2005) at 85.

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national rule of law standards that already exist and reinforces the national rule of law. The Preamble to the Convention refers to the ‘common heritage of political traditions, ideals, freedom and the rule of law’ . . . of which national constitutions are in fact often the first embodiment. Through its system of collective enforcement of the rights it establishes . . . the Convention reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level, but never limits it.90

The ECtHR plays a central role in developing the rule of law as a concept of the Convention through its case law. The Court actively monitors the national legal systems of its member states, chiefly through the individual application procedure. The Convention and the ECtHR’s individual application procedures constitute a direct and structural involvement with the national legal systems.91 The Court’s case law provides an important resource for the interpretation and elaboration of the different Convention rights.92 This is in line with the approach of the ECtHR whereby, although it is not officially bound to do so, it does follow its own judgments93 as well as the case law of its predecessor and of the EComHR, except in special circumstances where a development of the law is called for.94 The Court furthermore expects states to take into account its rulings against other states.95 The resolutions and recommendations of the Committee of Ministers and the Parliamentary Assembly of the CoE, as well as the Statute of the CoE, are also used as a complementary source of reference for the interpretation of the Convention. Because this book focuses on the case law of the ECtHR, it describes the rule of law as a legal concept and not so much as a political ideal. It will describe the rule of law as a legal concept in the context of the Convention that restricts the way in which European states may organize their national legal systems. The Court’s case law provides a good source for research into the rule of law as a legal concept. Still, the rule of law is a legal but also a political ideal.96 The concept is frequently and

90 United Communist Party of Turkey and ors v Turkey, (GC), App no 19392/92, ECHR 1998-I, 30 January 1998, at 27. 91 Laurence R. Helfer, ‘Redesigning the European Court of Human Rights:  Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) European Journal of International Law 19(1) 125–59 (text around fn 48). 92 ‘The Court’s judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as contracting parties.’ Ireland v United Kingdom, (Pl), App no 5310/71, Series A no 25, 18 January 1978 at 154; Costas Paraskeva, The Relationship between the Domestic Implementation of the European Convention on Human Rights and the Ongoing Reforms of the European Court of Human Rights (with a Case Study on Cyprus and Turkey) (Antwerp: Intersentia, 2010) at 88. 93 European Convention on Human Rights 1953, Art 46. 94 Rudolf Bernhardt, ‘Rechtsfortbildung durch den Europäischen Gerichtshof für Menschenrechte’ in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel and Beatrice Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law, Liber Amoricum Luzius Wildhaber (Zurich: Dike Verlag, 2007) at 92. 95 Opuz v Turkey, App no 33401/02, 9 June 2009, at 163 (not yet reported). 96 Wetenschappelijke Raad voor het Regeringsbeleid (2002).

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Introduction

commonly used in public as well as in legal debate. As a political ideal, especially, the rule of law is a contested concept and has a rhetorical function. As a legal principle, the rule of law is more narrowly defined and consensus on a number of essential principles is more easily achieved. Although the focus of the research entails less attention to the rule of law as a political ideal, in the case law both aspects of the rule of law—the legal and the political—cannot be completely separated. When the ECtHR interprets the Convention, it mainly draws from the common political traditions in the member states. Ovey and White write that ‘the interpretation of the European Convention may legitimately be based on a common tradition of constitutional laws and a large measure of legal tradition common to the Member states of the Council of Europe.’97 Greer explains that the Convention was conceived as a statement of the shared constitutional values that existed at the time of its inception.98 The ECtHR draws inspiration from national legal systems and at the same time influences national legal systems.99 The Convention safeguards the common European heritage of political traditions, ideals, freedom, and the rule of law.100 The contracting states at first believed they did not need to make changes to their national laws, because the Convention was set up to ensure such guarantees of freedom as were already protected in national law.101 However, as will be shown in Chapters 3 to 6, the ECtHR has, in its case law, further developed the common rule of law standard. The selection of the case law of a judicial body concerned with human rights protection for research into the rule of law carries a bias with respect to the perspective on the rule of law. First, such a concept of the rule of law would seem to place the judiciary in a central role. It would also appear to favour a rule of law conception that favours judicial protection of human rights over democratic protection of human rights. In addition, it favours the notion that an international court can strengthen the functioning of the national rule of law. Such criticism cannot easily be refuted. However, the form of the rule of law is contingent and not naturally given. This book will analyse the rule of law as it is presently construed in an international institutional context in which this rule of law is functioning and can thrive. The rule of law can thrive in this context because the ECtHR is set up to protect individuals against arbitrary public power.102

97

98 Clare Ovey and Robin C.A. White (2010) at 77. Steven Greer (2006) at 56. Matthias Herdegen, ‘Menschen- und Grundrechte, Wechselwirkungen im Modernen Verfassungsstaat’ in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassóli, Walter Stoffel, and Beatrice Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law, Liber Amoricum Luzius Wildhaber (Zurich: Dike Verlag, 2007) at 333–4. 100 ‘Considérant qu’il en résulte qu’en concluant la Convention, les États Contractants n’ont pas voulu se concéder des droits et obligations réciproques utiles à la poursuite de leurs intérêts nationaux respectifs, mais réaliser les objectifs et idéaux du Conseil de l’Europe, tels que les énonce le Statut, et instaurer un ordre public communautaire des libres démocraties d’Europe afin de sauvegarder leur patrimoine commun de traditions politiques, d’idéaux, de liberté et de prééminence du droit’: Austria v Italy, App no 788/60, Recueil 7, 11 January 1961. 101 Council of Europe (1975) at 158, 194, 276. 102 Tom Bingham, The Rule of Law (London: Penguin Books, 2010) at 117. 99

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The extent to which the Convention system of human rights protection itself conforms to the rule of law is an important concern. It could be said that this system does not live up to the rule of law standard in all respects. In particular, the Court’s workload (which results in lengthy proceedings); its supervision of the execution of judgments; and the repetitive nature of its cases could be seen as problematic elements of the Convention system.103 Although Protocol 14 has helped the Court to tackle its workload to a certain extent, it has not solved the problem.104 Furthermore, repetitive cases are a particular indication of the weakness of the supervision mechanism and the enforcement of the Court’s judgments.105 In addition, the accession of Eastern European states and especially Russia aggravated these difficulties. This book will not address these issues further, but they cannot be ignored because they impact upon the authority of the Convention system. As noted, in the long run international organizations cannot continue to apply their rule of law standards to states if they do not conform to these standards themselves. The same argumentation applies to the ECtHR.

3 Outline and Methodology This book will describe the rule of law concept within the context of the European Convention and the case law of the European Court of Human Rights, describing which elements form part of this rule of law concept and its relevance to the protection of the Convention rights. The term ‘rule of law’, rather than Rechtsstaat or État de droit, will be used in this research. It appears to be the most appropriate term because this research concerns the rule of law beyond the state, and primarily in relation to the Convention. All three concepts—the rule of law, Rechtsstaat, and État de droit—are based on the same fundamental notion of protecting the individual from arbitrary power.106 The rule of law is often translated as prééminence du droit, or principe de légalité, but has more recently been translated in literature as État de droit.107 Under the influence of EU law and the case law of the ECtHR a consensus has emerged that the rule of law, Rechtsstaat, and État de droit are equivalent concepts. All three are directed at subjecting the relations between individuals and governmental authorities to the law; limiting arbitrary governmental actions; and preserving the autonomy of the individual.108 103 Ed Bates (2010) at 149, 515; David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 34–36; Clare Ovey and Robin C.A. White (2010) at 588. 104 Steven Greer (2006) at 169–70. 105 Irene Hoffmann, Der Grundsatz der Subsidiarität im Rechtsschutzsystem der Europäischen Menschenrechtskonvention, Rechtliche Fundierung, Besonderheiten und Bedeutung (Frankfurt am Main: Peter Lang, 2007) at 32. 106 Christian Starck, ‘Grundrechte, Rechtsstaat und Demokratieprinzip als Grundlagen des Verwaltungsverfahrens’ in Ulrich Beyerlin (ed), Recht Zwischen Umbruch und Bewahrung (Berlin: Springer, 1995) at 599. 107 Eric Carpano, Thierry Debard, and Jacques Ziller, État de Droit et Droit Européens, L’evolution du Modèle de L’état de Droit dans le Cadre de L’européanisation des Système Juridiques (Paris: l’Harmattan, 2005) at 252. 108 Eric Carpano, Thierry Debard, and Jacques Ziller (2005).

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Introduction

In consequence, the term rule of law in the context of the Convention should be understood not only as the Anglo-American legal principle, but also as the English translation of the Rechtsstaat and État de droit concepts. The analysis of the rule of law in the Court’s case law in Chapter  2 will be preceded by a theoretical analysis of the rule of law concept and its elements that can be derived from theory and practice. Also, a short description will be given in this chapter of the rule of law in the United Kingdom, the État de droit in France, and the Rechtsstaat in Germany. These countries have been chosen because they are European member states of the CoE with long rule of law traditions, while their legal systems also exhibit a number of differences. Also the book will sketch the development in the constitutional order of these states that has been brought through the influence of the case law of the ECtHR. The purpose of the theoretical chapter is to set out and describe the central elements of the rule of law. The rule of law is essentially a contested concept, which is defined by different people in very narrow or very broad terms. Different accounts of the rule of law include various elements, and are more or less comprehensive. Still, on the basis of theory and practice, a number of elements can be shown that should be understood to form part of the rule of law. The theoretical account of the rule of law will inform the critical analysis of the manner in which the Court uses the rule of law concept in the case law. The main section of this book will concern the case law of the ECtHR, and this will thus constitute the most important legal source upon which this research is based. The analysis of these cases will be structured as much as possible according to the different elements that can be derived from the national forms of the rule of law and theoretical accounts of the rule of law. In Chapter 3, the Convention concept of legality, as it is developed in the Court’s case law, will be analysed. It will be shown that the ECtHR has developed the requirements of legality based on the rule of law. The different requirements of legality will be described and analysed in detail. Judicial safeguards will be described in Chapter 4 as central elements of the rule of law. It will be shown that the Strasbourg Court has derived aspects of the fair trial guarantee from the rule of law. This chapter will also analyse the independence of the judiciary as an element of the rule of law in the context of the Convention. Chapter 5 will analyse the relation between the rule of law and the substantive contents of law. It will be shown that the rule of law is not mainly concerned with freedom rights, but with procedural rights. This chapter will also discuss the relation between the rule of law and the view of the Convention as a constitutional instrument of the European public order. In Chapter 6, the relation between the rule of law and democracy in the context of the Convention will be described. It will be shown that the rule of law and democracy are inextricably linked in the case law of the ECtHR. In Chapter 7, the conclusion, a comparison will be made between the theory and the national forms of the rule of law, on the one hand, and the rule of law in the case law of the ECtHR on the other. The conclusion will analyse whether the rule of law elements derived from theory and practice are also part of the rule of law in the context of the Convention. Also, the conclusion will point out similarities and

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explain differences. In addition, the conclusion will address how the rule of law in the case law can set an example for the development of the rule of law as a concept of international law. A comprehensive definition or description of the rule of law, which includes the different uses of the concept by the Court, cannot be found in the case law. Generally, the ECtHR does not define concepts extensively in its rulings.109 In certain judgments the Court does enumerate general principles clarifying the meaning of the Convention rights. Still, it has not enumerated the different elements and characteristics of the rule of law in these general principles. This is unsurprising, as the rule of law is not a rule of decision, but rather a broader concept which the Court refers to in support of a specific interpretation of a Convention right. Even so, the ECtHR frequently refers to the rule of law concept and does so in relation to a wide range of subjects. In certain decisions, the Court has even broadened the scope of the Convention, based on the rule of law, to ensure a more effective protection of human rights.110 In other decisions, it would appear that mention of the rule of law is only intended to add persuasive power to the judgment. A systematic analysis of the manner in which the ECtHR has referred to the rule of law in its case law will show the relevance of the rule of law for the Convention. Since the ECtHR has not defined the scope of the rule of law, of most interest is the result where the Court has interpreted the Convention in light of the rule of law. This research will focus mainly on those judgments where the rule of law has had an effect upon the interpretation and application of Convention rights. The work in Chapters 3 to 6 is a categorization of these different uses. An attempt will be made to formulate a coherent and systemic rule of law concept. We shall see that these results are mainly formal, and concerned with legality and judicial safeguards. The research material includes both judgments of the chambers and the Grand Chamber of the ECtHR.111 Also the judgments of the EComHR and the former European Court of Human Rights have been examined. Judgments issued after 2 October 2012 have not been included as research material. Seen how most groundbreaking cases have been translated into English, judgments in French have been used only as a supplementary source of reference. Decisions on admissibility were analysed also as a supplementary source. The research has been conducted by an analysis of those judgments where the ECtHR has explicitly mentioned the rule of law in its own argumentation. In addition, certain judgments were included as research material even though the ECtHR did not explicitly refer to the rule of law in these judgments. Specifically, judgments were included on those issues identified in the theoretical chapter as central to the rule of law. These judgments are mostly part of the leading cases and have been selected through an examination of literature on the Convention. 109

Clare Ovey and Robin C.A. White (2010) at 81. Clare Ovey and Robin C.A. White (2010) at 77–8. 111 Although Grand Chamber judgments have more authority than Chamber judgments (as a larger number of judges participate in the deliberations that lead up to the ruling) in this research both categories of judgments have been analysed since both categories contain authoritative interpretations of the Convention in specific cases which concern the rule of law. 110

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2 The Rule of Law Concept 1 Introduction The rule of law as a concept seems, at first, to be self-evident and self-explanatory. One can look at the rule of law in a very simple fashion by following the grammatical structure of the phrase: there must be a system of law, and the law must rule. This shows how the rule of law is based around legality. However, how can law rule if people are making and applying the law? Thus, at closer inspection, the rule of law concept is elusive. Simple definitions of the rule of law describe the concept as ‘government by law, not by men’, or ‘the subjection of all state power to the law’, or ‘the limitation of arbitrary government’. Such definitions seem simple, but after some contemplation it becomes clear that they have little substance. Although the concept of the rule of law may appear to be self-explanatory, it is a complex concept that is defined in different manners by different people, depending on their political outlook. The rule of law is intricately bound up with the historical, ideological, and institutional context in which it has developed. It is within this context that the concept has developed. Also, within this context it can be shown which institutions have been devised to realize the aims of the rule of law. As Chevallier writes, when the rule of law is divided from its historical and institutional context, it is no more than an empty shell.1 This research will, accordingly, start with a description and analysis of the institutional and historical context of three European states in which the different national forms of the rule of law have developed. The institutional and historic contexts in which the rule of law came to develop will show how the rule of law consists of different elements that are related to each other. In the second part of this chapter these different elements will be analysed from a theoretical perspective. It will be explained how the rule of law has two central elements that are part of any rule of law definition. This chapter will proceed with a short description of the two central elements of the rule of law. Then the different aims that are attached to the rule of law will be discussed. A short description of the UK, French, and German settings of the rule of law will follow, showing how the rule of law is tied to the historical and institutional context in which it came to be developed. The main part of the chapter 1

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Jacques Chevallier, L’État de droit, 4th edn (Paris: Montchrestien, 2003) at 52.

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will comprise a detailed analysis of the different possible elements of the rule of law: namely legality; judicial safeguards; separation of powers and an independent judiciary; democracy; and human rights.

2 Approaches to the Rule of Law Concept 2.1 Elements of the rule of law The rule of law is a flexible and contested concept which can be defined in many different ways.2 Selznick writes that ‘there is no single model for the rule of law.’3 Definitions of the rule of law are mostly concerned with an enumeration of different elements of the rule of law. Accounts of the rule of law differ with regard to the elements that are understood to form part of it. The different definitions of the rule of law mean that the rule of law has no uniform accepted form. Certain concepts have such diverse forms and meanings that they can best be described as a thread woven of different fibres.4 However, this is not an accurate presentation of the rule of law. The rule of law should not be seen as a group of similar concepts that only share a family resemblance. The rule of law should be understood as a concept that has at least two core elements: the control of power, and law. These elements are included in any view on the rule of law.5 Discussion of the content of the rule of law does not concern the question whether these core elements are part of the rule of law. Thus, the rule of law should not be seen as a concept akin to a thread woven of different fibres. There is debate over the exact meaning and scope of the rule of law, even in regard to the two core elements. Still, this debate must be seen as inherent and necessary in order to uphold and maintain a generally accepted view of these two elements. The discussion on the content of the rule of law does not diminish the

2 W.B. Gallie, ‘Essentially Contested Concepts’ (1956) Proceedings of the Aristotelian Society 56, at 167–98; Neil MacCormick, ‘Der Rechtsstaat und die Rule of Law’ (1984) Juristenzeitung 39 at 66; Brian Z. Tamanaha, On the Rule of Law, History, Politics, Theory (Cambridge:  Cambridge University Press, 2004); Berta Esperanza Hernandez-Truyol, ‘The Rule of Law and Human Rights’ (2004) Florida Journal of Internationl Law 16, at 167; Margaret Jane Radin, ‘Reconsidering the Rule of Law’ (1989) Boston University Law Review 69, at 783; Martina Huber, ‘Monitoring the Rule of Law, Consolidated Framework and Report’ (2002) Netherlands Institute of International Relations ‘Clingendael’, 18; Randall Peerenboom, ‘Human Rights and Rule of Law: What’s the Relationship?’ (2005) Georgetown Journal of International Law 36, at 18. 3 Philip Selznick, ‘Democracy and the Rule of Law’ (2005) Syracuse Journal of International Law and Commerce 33, at 29. 4 What binds these concepts and makes them into one whole thread is ‘the overlapping of many fibers’. Garth Hallet, A Companion to Wittgenstein’s ‘Philosophical Investigations’ (Ithaca:  Cornell University Press, 1977) at 72–3. 5 ‘Sicher ist nur, dass in der gemeinsamen Tradition übereinstimmende Vorstellungen vorhanden sind: Absage an absolute Macht und Hinwendungen zur Herrschaft des Rechts sowie Gewähr und Schutz persönlicher und politischer Freiheit durch Mäßigung, Gliederung und Begrenzung und richterliche Kontrolle der Staatsgewalt.’ Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland (Munich: C.H. Beck, 1984) at 765.

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importance of the concept. Discussion is necessary, as the rule of law requires debate to thrive.6 First, the control of power is a central element of the rule of law because the rule of law presupposes the existence of some form of governmental power which must be controlled. The rule of law has developed in the context of the nation state, with the aim of controlling governmental power.7 The rule of law accordingly depends on a pre-existing governmental power that has established some form of law and order.8 The rule of law is generally seen in relation to the state, and has been developed in the context of the state. It does not necessarily presuppose a state structure, but it does presume the existence of a viable political organization and the acceptance of law as a means of social organization.9 Thus, the rule of law is concerned with the balance between the establishment of order and the control of governmental power.10 Secondly, legality is a central element of any rule of law definition.11 The rule of law limits governmental powers by demanding that government keeps to the law and governs through law.12 The subjection of government to the law is given shape and substance by the legality principle. Legality only has a function in relation to the existence of a central law-making authority. If everyone was able to follow their own special system of law, legality would not exist.13 The two central elements of the rule of law are thus very much related. The rule of law presupposes that governmental power can be exercised and controlled through law.14 Also, the rule of law concept is essentially aimed at the organization of society and the limitation of governmental powers through law.15 Aside from these two core elements, the rule of law includes other elements. Whether all these elements form part of the rule of law is open to debate. A distinction 6 Neil MacCormick (1984) at 70; Anna Maria Bos, Geregeld Recht, een Positivistische Analyse van de Rechtsstaat (Nijmegen: Ars Aequi Libri, 2001) at 17. 7 Jacques Chevallier (2003) at 53. 8 Borstjan M. Zupancic, ‘Adjudication and the Rule of Law—“Power of Logic” v.  “Logic of Power”—“Rule of Law” v. “Law and Order” ’ (2003) European Journal of Law Reform V(1/2), at 70. 9 ‘Beide [referring to the Rule of Law and Rechtsstaat] sind Bedingungen der menschlichen Freiheit innerhalb einer beständigen politischen Ordnung.’ Neil MacCormick (1984) at 66; Patricia Popelier, Rechtszekerheid als Beginsel voor Behoorlijke Regelgeving (Antwerp/Groningen: Intersentia Rechtswetenschappen, 1997) at 82. 10 C.H. McIlwain, Constitutionalism and the Changing World (Cambridge:  Cambridge University Press, 1969) at 277. 11 Neil MacCormick (1984) at 68; Francis Hamon, Michel Troper, and Georges Burdeau, Droit Constitutionnel, 26th edn (Paris: Librairie Generale de Droit et de Jurisprudence, 1999) at 75. 12 Christian Starck, ‘Grundrechte, Rechtsstaat und Demokratieprinzip als Grundlagen des Verwaltungsverfahrens’ in Ulrich Beyerlin (ed), Recht Zwischen Umbruch und Bewahrung (Berlin: Springer, 1995) at 600–1. 13 P.W. Brouwer, ‘Beginselen van Legaliteit’ (2003) Themis 2, at 75. 14 Eberhard Schmidt-Aßmann, ‘Der Rechtsstaat’ in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts (Band II) (Heidelberg:  C.F. Muller Verlag, 2004) at 999–1001; Hasso Hofmann, ‘Geschichtlichkeit und Universalitätsanspruch des Rechtsstaats’ in Hans-Martin Pawlowski and Gerd Roellecke (eds), Der Universalitätsanspruch des Demokratischen Rechtsstaates:  die Verschiedenheit der Kulturen und die Allgemeinheit des Rechtes (Stuttgart: Franz Steiner Verlag, 1996) at 14. 15 Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 74–5; Andre-Jean Arnaud, Dictionnaire Encyclopedique de Theorie et Sociologie de Droit (Paris:  Librairie Generale de Droit et de Jurisprudence, 1993); Brian Z. Tamanaha, On the Rule of Law, History, Politics, Theory (Cambridge: Cambridge University Press, 2004) at 114–26.

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can be made between narrow definitions of the rule of law and comprehensive definitions. Narrow definitions often include the elements of legality, which encompass different legal principles such as nulla poena, and procedural principles, such as access to a court, in the rule of law.16 Comprehensive rule of law definitions are broader and also include legal and institutional principles such as the separation of powers; democracy and the protection of human rights; and, lastly, justice.17 A distinction can also be made between formal and substantive views on the rule of law.18 Formal rule of law definitions are focused on procedural elements. Substantive definitions encompass procedural elements, and, additionally, focus on the realization of values and concern the content of law. Narrow definitions are usually formal and comprehensive definitions are generally substantive, but this is not necessarily so. The most narrow, formal definition of the rule of law is sometimes described as ‘rule by law’. The requirement that law must be abided by forms the narrowest rule of law concept. This demand shapes the first element of legality, to which other elements can be added. ‘Rule by law’ is necessary in order to fulfil the first aim of the rule of law: to provide order in society. However, since the rule by law is perfectly compatible with nepotism, it hardly counts as a definition of the rule of law.19 A slim formal legality concept cannot form a real limitation of governmental powers: other elements of legality should be added to this, to ensure that legality can limit governmental powers. Legality, defined as the requirement that laws should be general, certain, and public, is the second formal layer of the rule of law. Democracy could also be described as a formal element of the rule of law, but only when democracy is conceived as majority rule, or as a method to ensure a regular change of rulers.20 Substantive definitions contain the elements that form part of the formal definitions and also comprise requirements concerning the content of the laws. The constitutional protection of human rights, as a limitation of the content of laws, could be understood as a substantive element of the rule of law.21 Thus, the rule of law is a layered concept, with a formal core to which substantive layers are added.22 The differentiation between formal and substantive rule of law definitions shows how legality, as a means of controlling public power by law, must be understood as the central element of the rule of law. Legality is included in all definitions of the rule of law.

2.2 Aims of the rule of law The rule of law has different aims. First, it is aimed at providing society with stable rules by which people can live. Thus the rule of law ensures order and the viability 16

17 Brian Z. Tamanaha (2004) at 91–2. Brian Z. Tamanaha (2004) at 91–2. Randall Peerenboom (2005) at 20; Philip Selznick (2005) at 29; Hasso Hofmann (1996) at 11; Eberhard Schmidt-Aßmann (2004) at 997–8; Jacques Chevallier, ‘Les Doctrines de l’état de Droit’ (1998) Le Droit dans la Societé,Cahiers Français 288 October–December, 5. 19 20 Brian Z. Tamanaha (2004) at 92. Brian Z. Tamanaha (2004) at 99. 21 Brian Z. Tamanaha (2004) at 102. 22 Eberhard Schmidt-Aßmann (2004) at 542; Wetenschappelijke Raad voor het Regeringsbeleid (2002) at 23–4. 18

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of society. The rule of law is directed at the population as a whole, demanding that everyone follows and obeys the law. This aim corresponds with the notion of rule by law, described above. The rule of law is also directed at the government, and demands that the government can only rule according to law.23 This more comprehensive aim corresponds with the two core elements of the rule of law: the control of power, by law. Secondly, the rule of law is aimed at the protection of the individual from arbitrary power.24 It is based on a view of society centred on the individual.25 As such, the rule of law is part of a liberal ideology.26 ‘Liberal’ here is understood in a broad sense, as a political philosophy which places central value on the individual, in contrast to a communitarian political philosophy.27 The means by which the protection of individuals from arbitrary power is envisaged are diverse. The protection of the individual from arbitrary power can be achieved through different means, such as the requirements of legality, the separation of powers, the existence of an independent judiciary, and a viable democracy. Often, the aim of the rule of law—to protect the individual from arbitrary power—is seen as best effectuated through human rights protection.28 The rights that are most often seen in relation to the rule of law are civil rights that ensure basic freedoms, such as freedom of speech, liberty, and the right to life.29 Lastly, the rule of law could be seen as promoting a just legal system in which individual rights are adequately protected. The International Commission of Jurists noted in 1959 that the rule of law should be employed ‘not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised’.30 This formulation has been criticized for being too broad.31 According to Raz,32 the rule of law defined in such 23

Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979) at 212. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Houndmills: Macmillan Education, 1959) at 188; Simon Chesterman, ‘Rule of Law’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law, online edn (New  York:  Oxford University Press, 2007); Danilo Zolo, ‘The Rule of Law: A Critical Reappraisal’ in Pietro Costa and Danilo Zolo (eds), The Rule of Law, History, Theory and Criticism (80) (Dordrecht: Springer, 2007) at 19–21; Hasso Hofmann (1996) at 12. 25 Danilo Zolo (2007) at 19–21; Hasso Hofmann (1996) at 12. 26 Jack Donnelly, Universal Human Rights in Theory and in Practice (Ithaca/London:  Cornell University Press, 1989) at 69; Brian Z. Tamanaha, On the Rule of Law, History, Politics, Theory (Cambridge, Cambridge University Press: 2004) at 32. 27 As the rule of law is focused on individuals, it is questionable whether it is compatible with all forms of government. Societies that place the well-being of the group above the well-being of the individual generally see the individual as instrumental to achieving the well-being of the group. In such communitarian systems the society shares a common purpose and governmental powers are exercised for the common good. It appears unlikely that governmental powers so exercised would be subjected to limitations protecting the individual from arbitrary power. Jack Donnelly (1989) at 83. 28 29 Jacques Chevallier (1998) at 6; Danilo Zolo (2007) at 19. Danilo Zolo (2007) at 25. 30 International Commission of Jurists, ‘Declaration of Delhi: The Rule of Law in a Free Society’, New Delhi, 1959. 31 Joseph Raz (1979) at 211. 32 ‘If the rule of law is the rule of the good law, then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function.’ (Joseph Raz (1979) at 211). 24

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a broad manner loses distinctive power. Also, substantive notions, such as dignity, lead to broad governmental powers, and thus the aim of the rule of law—to place limits on the exercise of arbitrary governmental powers—could be undermined. Yet the rule of law is a legal ideal, and thus also implies the existence of a just legal system.33 Two different answers to Raz’s critique are possible: one, that only a minimal protection of basic economic, social, and cultural rights must be understood to form part of the rule of law; two, that the inclusion of social and economic rights into the rule of law is restricted to particular societies. Only in societies where agreement on the scope of economic, social, and cultural rights can be found, or where institutions can be set up to facilitate the resolution of differences, should these rights be included into the rule of law. Raz’s critique pertains also to the inclusion of civil and political rights into the rule of law, as these rights are increasingly interpreted to include positive obligations on the side of states. It must be noted that substantive elements of the rule of law, especially, are dependent on shared values or a common cultural background. Therefore, such a substantive definition of the rule of law chiefly has merit in relation to a society, which upholds the same values. It is important to note that the different aims that can be assigned to the rule of law can reinforce each other in a working rule of law system, but they can also exist in a state of tension.34 The aim of the rule of law—to provide law and order— may be in tension with its aim to protect the individual from arbitrary governmental power.35 The measures undertaken to suppress terrorism, which may also lead to far-reaching interferences with individual rights, is a well-known example.36 Democracy as the ideal of self-rule can also be in conflict with human rights protection, given that human rights protection generally entails the limitation of the ability of the democratic majority to determine the substantive content of the law.37 In light of the diversity in aims, elements, and principles that can be attached to the rule of law, one can ask whether the rule of law is merely a phrase that bundles different judicial and institutional principles.38 If the rule of law was to be no more than a bundling of principles, it could not point out which solution should be chosen for a specific legal problem.39 Still, these objections to the rule of law are mostly relevant where the concept is applied from outside the context of shared legal values. As Chevallier writes, when the rule of law is divided from its historical and institutional context, it is no more than an empty shell.40 33 Terry Nardin, ‘Theorising the International Rule of Law’ (2004) Review of International Studies 34, 385–401. 34 Eberhard Schmidt-Aßmann (2004) at 1037–8. 35 Rachel Kleinfeld Belton, ‘Competing Definitions of the Rule of Law, Implications for Practitioners’, 2005, Carnegie Papers, Rule of Law Series, Washington DC at 7. 36 Miša Zgonec-Rožej, ‘Yassin Abdullah Kadi & Al Barakaat International Foundation v. Council & Commission—European Court of Justice Judgment on the European Community’s Enforcement of UN Security Council Sanctions Regulations’ (2009) American Journal of International Law 103(2) at 305–10. 37 38 Brian Z. Tamanaha (2004) at 104. Hasso Hofmann (1996) at 10. 39 Eberhard Schmidt-Aßmann (2004) at 990. 40 Translation by the author. See p.  xxv for the original French text. Jacques Chevallier (2003) at 52.

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The rule of law is intricately bound up with the historical, ideological, and institutional context in which it has developed. It is within this context that the concept becomes more than a mere bundling of different elements. Also, within this context it can be shown which institutions have been devised to realize the aims of the rule of law. This research will, accordingly, take into account the institutional and historical context of the European states in which the different national forms of the rule of law have developed.

2.3 National forms of the rule of law The institutional context in which the UK rule of law, Rechtsstaat, and État de droit developed has been very different. The rule of law has been developing in the United Kingdom since the signing of the Magna Carta. The Rechtsstaat is a constitutional law concept of German origin, which can be traced back to the late Middle Ages.41 The French concept of the État de droit was developed on the basis of the German Rechtsstaat concept. A short description of these three concepts of the rule of law will show how they are all closely tied to the historical and constitutional setting in which they have developed.

2.3.1 The United Kingdom rule of law concept The United Kingdom has one of the oldest traditions concerning the restraint of arbitrary power of government. The development of the rule of law in the United Kingdom can be traced back to 1215, when King John signed the Magna Carta. This was one of the first instances where the ruler’s power was acknowledged to be limited by law in relation to all ‘free men’.42 The UK legal system does not have a set of rights codified in a constitution. As there is no document thus labelled, it is difficult to clearly delimit the principles included in the UK ‘constitution’,43 which consists of legislation, judicial decisions, and constitutional conventions.44 Phillips, Jackson, and Leopold write that ‘it could be said that the British Constitution does not know of any rule of law since no superior law puts limits to what Parliament may legislate.’45 Furthermore, the UK rule of law has developed in a common law system, in which judges have always had a prominent place in formulating and explaining the law.46 41

Eberhard Schmidt-Aßmann (2004) at 992–3. Tom Bingham, The Rule of Law (London: Penguin Books, 2010) at 10; Brian Z. Tamanaha (2004) at 26. 43 F.F. Ridley, ‘The British Constitution and Constitutional Reform in Britain’ in Roland Bieber and Pierre Widmer (eds), L’espace constitutionnel européen (Zurich: Schulthess, 1995) at 39. 44 Franz C. Mayer, ‘Verfassungen in Europa, ein Überblick’, 2002, WHI-Papers, Berlin at 34, 36; Lucas Prakke, ‘The United Kingdom of Great Britain and Northern Ireland’ in Lucas Prakke and Constantijn Kortmann (eds), Constitutional Law of the 15 EU Member States (Deventer:  Kluwer, 2004) at 870. 45 Owen Hood Phillips, Paul Jackson, and Patricia Leopold, Constitutional and Administrative Law (London: Sweet & Maxwell, 2001) at 30. 46 William Wade and Christopher Forsyth, Administrative Law, 10th edn (Oxford: Oxford University Press, 2009) at 12. 42

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Thus, next to statutory law, common law is an important source of law. As a result, the UK rule of law concept is also generally understood to include procedural guarantees that have developed in case law, such as habeas corpus. Dicey has had much influence on the understanding of the rule of law in the United Kingdom, especially through his book on the constitution in the UK.47 In brief, the rule of law, as seen by Dicey, consists of three elements. First, the rule of law entails the absence of arbitrary power. The main element is the demand that no man is punished without a distinct breach of law established in the ordinary legal manner by the ordinary courts.48 Secondly, all are equal before the law and the ordinary law of the land is binding on all.49 Consequently, according to Dicey, there should be no special administrative courts, as this would lead to inequality. Instead, all cases should be brought before the ordinary courts.50 Lastly, the rule of law includes principles that have been developed through judicial decisions. These principles concern the freedom of individuals, such as the right to personal freedom, the right to discussion, and the right of public meeting.51 Dicey thus described the existence of judicial remedies as the most important safeguard of individual rights.52 In the UK’s current legal system, the rule of law primarily means legality, whereby legality is understood as the demand that all acts of governmental power that affect individual rights and duties must be ‘shown to have a strictly legal pedigree’.53 Power may only be exercised by the authority upon which it is conferred, and in nearly all cases power must be conferred by parliament, whether directly or indirectly.54 As a corollary, individuals must be able to go to court to request a review of the legality of acts that affect their rights.55 Courts can review whether a governmental authority has acted ultra vires. Ultra vires includes both formal grounds for nullifying acts of administration, such as illegality and excess of powers, but also more substantive grounds, such as the principles of reasonableness and proportionality.56 Proportionality has become a principle of judicial review, under the influence of the European Convention on Human Rights (‘Convention’).57 Furthermore, legality also requires that courts can review the procedures utilized by a public authority through the standard of natural justice. Natural justice is seen to include two main principles: the right to a fair hearing, and the rule that no man 47 Tom Bingham (2010) at 3; William Wade and Christopher Forsyth (2009) at 12; Owen Hood Phillips, Paul Jackson, and Patricia Leopold (2001) at 33; A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law, 13th edn (Harlow: Pearson Education Limited, 2003) at 93. 48 49 Albert Venn Dicey (1959) at 188. Albert Venn Dicey (1959) at 193. 50 William Wade and Christopher Forsyth (2009) at 20–1. 51 52 Albert Venn Dicey (1959) at 195. Albert Venn Dicey (1959) at 199. 53 William Wade and Christopher Forsyth (2009) at 17. 54 William Wade and Christopher Forsyth (2009) at 17, 259. 55 William Wade and Christopher Forsyth (2009); A.W. Bradley and K.D. Ewing (2003) at 695. 56 William Wade and Christopher Forsyth (2009) at 259–62, 286; A.W. Bradley and K. D. Ewing (2003) at 697–708; Ian Loveland, Constitutional Law, Administrative Law, and Human Rights, 4th edn (Oxford: Oxford University Press, 2006) at 503, 535. 57 Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950)  213 UNTS 222; 312 ETS 5, entered into force 3 September 1953; Tom Hickman, ‘The Substance and Structure of Proportionality’ (2008) Public Law 694–716 at 694; William Wade and Christopher Forsyth (2009) at 305.

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may be a judge in his own cause.58 Thus, legality in UK law includes both formal and substantive requirements that are set to law. These requirements are developed in case law, which shows how legality presupposes the existence of judicial review. In the United Kingdom there is no strict doctrine of the separation of powers.59 There is no clear separation between parliament and government, as all ministers are required to be a member of one of the houses of parliament.60 The Crown has a part in the exercise of all three forms of power: the legislative, the executive, and the judiciary.61 The control which the House of Commons can exercise over government is not very strong. It is, rather, the case that government has a firm control over parliament, which is due mainly to the electoral system and party politics.62 The best institutional safeguard in the United Kingdom against the misuse of power by parliament and government is the democratic procedure of elections.63 Still, the United Kingdom upholds the separation of powers with regard to the independence of the judiciary, which is understood to be a necessary element of the rule of law.64 Until recently, the Law Lords of the House of Lords operated as the highest judiciary in civil and criminal cases in the UK. This situation was seen to run counter to the right to a fair trial as protected by the Convention and, especially, contrary to the appearance of independence. Since 2009 the Supreme Court has taken over the role of the Law Lords, ensuring the appearance of independence.65 An important element of UK constitutional law is the sovereignty of parliament.66 This means that there is no higher law in the United Kingdom than the acts of parliament, and no parliament can bind a future parliament. No written or unwritten limitations on the legislative power of parliament are accepted under UK constitutional law.67 Although it is also argued that parliamentary supremacy was always presupposed as limited by the requirement that common law constitutional rights are protected.68 However, since the UK’s membership in the European Union (‘EU’), sovereignty of parliament is no longer so absolute.69 By becoming a member of the EU, and 58 William Wade and Christopher Forsyth (2009) at 271–2, 402; A.W. Bradley and K.D. Ewing (2003) at 712–14. 59 ‘There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading.’ William Wade and Christopher Forsyth (2009) at 731and see also at 18; Owen Hood Phillips, Paul Jackson, and Patricia Leopold (2001) at 26. 60 Lucas Prakke (2004) at 878. 61 Owen Hood Phillips, Paul Jackson, and Patricia Leopold (2001) at 26. 62 63 Lucas Prakke (2004) at 878. Lucas Prakke (2004) at 878. 64 William Wade and Christopher Forsyth (2009) at 18. 65 UK Department for Constitutional Affairs, ‘Constitutional Reform: A Supreme Court for the United Kingdom (Consultation Paper)’ July 2003 (available at:  ) (last accessed 12 March 2012). 66 Owen Hood Phillips, Paul Jackson, and Patricia Leopold (2001) at 22; William Wade and Christopher Forsyth (2009) at 21–3. 67 Lucas Prakke (2004) at 870. 68 T.R.S. Allen, ‘Questions of Legality and Legitimacy:  Form and Substance in British Constitutionalism’ (2011) International Journal of Constitutional Law 9(1) at 158. 69 Gordon Anthony, UK Public Law and European Law (Oxford/Portland, Oregon: Hart Publishing, 2002) at 81–3; William Wade and Christopher Forsyth, Administrative Law (2009) at 23–4; for a different view: Tom Bingham (2010) at 164.

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enacting the European Communities Act, the UK parliament has bound successive parliaments, which runs counter to the original concept of the supremacy of parliament.70 The Factortame judgment showed that UK courts have accepted the supremacy of EC law over national legislation.71 However, the theory of the supremacy of parliament has not been replaced by another. UK legal doctrine still holds that the supremacy of Community law is based on the intention of parliament.72 Originally, the manner in which rights were protected strongly differed between the rule of law and the Rechtsstaat concept. The absence of a written constitution was not seen as a weakness, but rather as a strength, as the individual liberties are part of an unwritten constitution that cannot easily be suspended.73 The idea of the rule of law was based on the belief that law—formed through the decisions of judges in particular cases—expresses the collective wisdom of many generations. Thus, law protects against arbitrary rule and has ensured individuals the largest amount of freedom possible.74 A relatively new development of UK constitutional law is the adoption of the Human Rights Act of 1998. This Act gives effect to the Convention in UK domestic law, making it possible for citizens to invoke the Convention before UK courts.75 Courts must read and give effect to national law, as far as possible, in a way that is compatible with the Convention.76 Ordinary courts review the compatibility of legislation with the Convention. In a situation where domestic law is incompatible with the Convention, the acts of parliament are not declared null and void, but the judiciary can issue a declaration of incompatibility. With regard to acts made by parliament, only the higher courts have this power of review.77 In such a case, parliament can decide to amend or uphold the disputed act. In this way, parliament still has the final word.78 Also, the Human Rights Act has instituted a form of abstract review of legislation, as the legislature must indicate whether a newly proposed piece of legislation is compatible with the Convention.79 The review powers of courts under the Human Rights Act can be described as weak, as courts cannot invalidate laws that are incompatible with the Convention.80 Also, the Human Rights Act keeps up the appearance of the sovereignty of parliament.81 Although, on paper, the Human Rights Act upholds the sovereignty of

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William Wade and Christopher Forsyth (2009) at 24. Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials, 4th edn (Oxford, Oxford University Press, 2008) at 366–7. 72 73 Gordon Anthony (2002) at 77–92. Albert Venn Dicey (1959) at 201. 74 F.A. Hayek, Law, Legislation and Liberty (London: Routledge & Kegan Paul, 1982) at 55–6, 85–8. 75 This is so even though the Human Rights Act does not give effect to all provisions of the Convention. Gordon Anthony (2002) at 165. 76 Human Rights Act 1998, s. 3(1). 77 William Wade and Christopher Forsyth (2009) at 144. 78 79 Human Rights Act 1998, s. 4(2). Human Rights Act 1998, s. 19. 80 Richard Bellamy, ‘Political Constitutionalism and the Human Rights Act’ (2011) International Journal of Constitutional Law 9(1) at 101. 81 William Wade and Christopher Forsyth (2009) at 158; Conor Gearty, ‘Reflections on Human Rights and Civil Liberties in Light of the United Kingdom Human Rights Act 1998’ (2001) University of Richmond Law Review 35(1) at 1–25; Richard Bellamy (2011). 71

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parliament, the fact is that some form of human rights catalogue has become part of the UK system of law.82 Furthermore, this catalogue is linked to the European Court of Human Rights (‘ECtHR’, the Strasbourg Court’, or simply ‘the Court’) as UK courts must take the jurisprudence of Strasbourg into account.83 The requirements of the Human Rights Act ‘to take into account’ the case law is interpreted by the UK courts to mean national courts must ‘keep pace with Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’.84 More generous protection of rights can be granted by UK courts, but this should not be based on an interpretation of the Convention itself as that Convention should have a uniform meaning for all state parties.85 The Human Rights Act was intended to bring human rights protection home and adapt it to the specific legal environment of the UK. Because the courts mostly follow the case law of the ECtHR, the Human Rights Act has not become a genuine UK bill of rights.86 Also, the deferential attitude of UK courts towards the authority of the ECtHR to interpret the Convention does not foster a dialogue between the UK courts and the court in Strasbourg.87 Still, in some cases UK courts have interpreted human rights obligations in an independent manner.88 The deference shown by the UK for the case law of the ECtHR functions as a break on judicial activism.89 In contrast, parliament has become more active in taking rights into consideration when drafting new legislation.90 Of interest is that of recent years resistance to the ECtHR can be witnessed in the UK. For many years the UK has even failed to implement the Hirst rulings.91 A prominent critic in the UK of the ECtHR is Lord Hoffmann. He has argued that the Strasbourg Court should respect its subsidiairy role more and also that certain issues it has judged on should have been decided on by a democratic majority in the UK parliament or by UK judicial bodies.92 Notwithstanding the criticism, on the whole the relationship between the UK legal order and the ECtHR is best described as a productive and creative dialogue.93

82

Luc Heuschling, État de Droit, Rechtsstaat, Rule of Law (Paris: Dalloz, 2002) at 320. Human Rights Act 1998, art 2(1)(a); William Wade and Christopher Forsyth (2009) at 148. 84 R (Ullah) v Special Adjudicator [2004] UKHL 26. 85 R (Ullah) v Special Adjudicator [2004] 86 David Feldman, ‘Extending the Role of the Courts: The Human Rights Act 1998’ (2011) The Parliamentary History Yearbook Trust 30(1) at 80. 87 Mary Howarth Arden, ‘Peaceful or Problematic? The Relationship between National Supreme Courts and Supranational Courts in Europe’ (2010) Yearbook of European Law 29(1) at 14. 88 R v Horncastle & ors [2009] UKSC 14. 89 Richard Bellamy (2011) at 97. 90 Richard Bellamy (2011) at 99; David Feldman (2011) at 79. 91 Isobel White, ‘Prisoners’ Voting Rights’, Parliament and Constitution Centre, House of Commons Library, SN/PC/01764, 7 September 2011 (available at:  ) (last accessed 20 February 2013). 92 Leonard Hubert Hoffmann, ‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture, 19 March 2009. 93 Nicolas Bratza, The Relationship between the UK Courts and Strasbourg, European Human Rights Law Review 5, at 505–12. 83

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2.3.2 The German Rechtsstaat concept The notions concerning the Rechtsstaat emerged in Germany in the beginning of the nineteenth century.94 Although the protection of human rights was regarded as part of the Rechtsstaat concept, in practice the Rechtsstaat remained a formal concept.95 The Rechtsstaat increasingly became a synonym for a formal legality principle—that government may not interfere unlawfully with the liberty of individuals.96 Administrative review was instituted, but was limited to the formal review of legality.97 The German experiences of the Second World War showed that the formal legality conception of the Rechtsstaat was not able to restrain the abuse of power by the Nazi regime.98 Consequently, the Rechtsstaat was reformulated into a substantive concept. When the German Basic Law was adopted in 1949, the dignity of man was placed at the heart of the constitution.99 In brief, the German concept of the Rechtsstaat includes legality, the separation of powers, procedural principles, human dignity, and the protection of human rights through constitutional review.100 The requirement of proportionality of government action is also understood as an element of the Rechtsstaat concept.101 The general principle of legality is formulated in Article 20(3) of the Basic Law, which determines that the legislature is bound by the constitution, and the executive and the judiciary by statute and law. Legality demands that the law has a quality of certainty: notably, the law must be promulgated, clear, precise, stable, non-retroactive, and foreseeable.102 In addition, Article 80 of the Basic Law delimits the delegation of legislative powers to the executive.103 The extent of the delegated powers and the purpose for which they may be exercised must be circumscribed.104 A delegation must be delimited with regard to the purpose of the delegated power and the ambit. Essential legal issues require a law made in parliament and, thus, legality forms a connection between the concepts of Rechtsstaat and democracy.105 Furthermore, legality is a central aspect of the separation of powers doctrine,106 as Article 20(3) determines that the executive and the judiciary are bound by statute

94

Klaus Stern (1984) at 769. Rainer Grote, ‘Rule of Law, Rechtsstaat and “État de Droit” ’ in Christian Starck (ed), Constitutionalism, Universalism and Democracy—A Comparative Analysis:  The German Contributions to the Fifth World Congress of the International Association of Constitutional Law (Baden-Baden:  Nomos Verschlagsgesellschaft, 1999) at 271–81; Hasso Hofmann (1996) at 13. 96 97 Klaus Stern (1984) at 771. Rainer Grote (1999) at 281. 98 Klaus Stern (1984) at 774. 99 German Basic Law 23 May 1949 (BGBl. p. 1), last amended 11 July 2012 (BGBl. I p. 1478), art 1(1); Rainer Grote (1999) at 286. 100 Eberhard Schmidt-Aßmann (2004) at 987–1043. 101 Klaus Stern (1984) at 784, 861; Reinhold Zippelius and Thomas Würtenberger, Deutsches Staatsrecht, 32nd edn (Munich: C.H. Beck, 2008) at 124. 102 Eberhard Schmidt-Aßmann (2004) at 998, 1005; Nigel G. Foster and Satish Sule, German Legal System and Laws (Oxford: Oxford University Press, 1993) at 166–170; Klaus Stern (1984) at 829–831. 103 Hartmut Bauer, ‘Artikel 80’ in Horst Dreier (ed), Grundgesetz-Kommentar (Vol 2), 2nd edn (Tübingen: Mohr Siebeck, 2006) at 1850; Klaus Stern (1984) at 815. 104 Ekkehart Stein and Götz Frank, Staatsrecht, 17th edn (Tübingen: Mohr Siebeck, 2000) at 152–3. 105 Klaus Stern (1984) at 811–14; Eberhard Schmidt-Aßmann (2004) at 998. 106 Eberhard Schmidt-Aßmann (2004) at 1004, 1017. 95

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law and law in the general sense. Also apparent from the text of Article 20(3) is the fact that legality cannot be seen as a purely formal concept. First, the legislature is bound by the constitution. Secondly, Article 20(3) also refers to justice, and thus brings to mind that there may be a gap between statutes and law.107 Judicial review is one of the central elements of the German Rechtsstaat concept.108 Germany has special administrative courts and an elaborate system of legal protection against abuse of power by the administration.109 Administrative courts decide in particular cases whether the administrative powers have acted within the boundaries of the law, including constitutional rights.110 The separation of powers is another element of the Rechtsstaat concept.111 This entails that different organs of government fulfil the three different functions, namely framing new laws, administrating, and judging.112 The separation of powers is only strictly maintained in relation to the independence of the judiciary from the executive;113 the influence of political parties has diminished the importance of the balance of powers between the executive and parliament.114 Germany is a federal state, and as a consequence the separation of powers is not only concerned with a horizontal separation, but also with a vertical separation.115 The constitution and the concept of human dignity have a central place in the German concept of Rechtsstaat.116 Constitutional rights are binding on all government powers.117 Furthermore, the Basic Law determines that the essence of constitutional rights may not be infringed.118 Certain parts of the German constitution may never be altered. Article 79(3) of the Basic Law provides that Articles 1 and 20, which concern human dignity and legality, may not be amended.119 The German legal system is based on a hierarchy of legal sources. The Basic Law is the highest legal source.120 Constitutional rights have a central place in the Basic Law.121 Individual freedom and equality before the law are essential elements, and include the requirement that individuals must be equally protected by law.122 The Basic Law’s primary focus is still on negative rights which function as a protection against arbitrary government interferences.123 Still, constitutional rights also include 107

Eberhard Schmidt-Aßmann (2004) at 1007; Klaus Stern (1984) at 797–9. Klaus Stern (1984) at 838; Nigel G. Foster and Satish Sule (1993) at 172; Reinhold Zippelius and Thomas Würtenberger (2008) at 125; Ekkehart Stein and Götz Frank (2000) at 159. 109 Klaus Stern (1984) at 839; Ekkehart Stein and Götz Frank (2000) at 136. 110 Ekkehart Stein and Götz Frank (2000) at 159, 417; Reinhold Zippelius and Thomas Würtenberger (2008) at 505. 111 German Basic Law 1949, arts 20(2), 20(3), and 1(3); Nigel G. Foster and Satish Sule (1993) at 164; Klaus Stern (1984) at 792–6. 112 Klaus Stern (1984) at 794. 113 Reinhold Zippelius and Thomas Würtenberger (2008) at 111. 114 Reinhold Zippelius and Thomas Würtenberger (2008) at 112. 115 Klaus Stern (1984) at 796. 116 Eberhard Schmidt-Aßmann (2004) at 1002–3; Klaus Stern (1984) at 791. 117 118 German Basic Law 1949, art 1(3). German Basic Law 1949, art 19(2). 119 Eberhard Schmidt-Aßmann (2004) at 1036. 120 121 Eberhard Schmidt-Aßmann (2004) at 1002. Klaus Stern (1984) at 788–92. 122 Klaus Stern (1984) at 790. 123 Klaus Stern, ‘Idee und Elemente eines Systems der Grundrechte’ in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland (Band V) (Heidelberg:  Müller, 1992) at 70. 108

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positive obligations on the part of government to ensure a certain social standard and to protect against interferences by other individuals.124 The Federal Constitutional Court (‘FCC’) has the important role of maintaining the supremacy of the German constitution and protecting constitutional rights.125 Individuals can lodge a constitutional complaint against administrative actions. The FCC has the competence to review whether an administrative action has infringed constitutional rights and certain constitutional principles, such as nulla poena.126 It also enforces the rules on the separation of powers,127 and can subject legislation to an abstract review of constitutionality.128 Furthermore, the FCC can, in concrete cases, be asked by lower courts to review the constitutionality of legislation.129 The supremacy of the constitution and the system of constitutional review limits the ability of the democratic majority to determine the content of the law.130 The FCC has extended the protection of human rights enormously since the 1950s. The active role of this court has placed constitutional rights at the forefront in Germany.131 It has been noted that the central place given to constitutional rights has influenced the balance of powers, to the benefit of the judiciary.132 The membership of the European Union, and especially the supremacy and direct effect of EU law established by the European Court of Justice (‘ECJ’), challenges the hierarchy of norms established in the Basic Law. The FCC has accepted the supremacy of EU law, even though it conflicts with the hierarchy of norms established in the Basic Law. Still, the FCC has formulated core reservations to the primacy of EU law: First, the FCC will refrain from exercising review powers over acts of EU law with their conformity with fundamental rights as long as the protection accorded by the EU is comparable to the standard of the Basic Law.133 Secondly, EU law may not infringe the inviolable core content of the constitutional identity of the Basic Law, whereby the FCC decides on the content of that core.134 Article 23(1) of the Basic Law determines that Germany may transfer sovereign powers to the European Union. Still, Article 23(1) also establishes that such a transfer of powers cannot entail that Article 1 or Article 20 of the Basic Law must be modified.135 The Convention and the case law of the ECtHR also pose a challenge to the hierarchy of norms established in the Basic Law and the role of the FCC to review laws against the fundamental rights standard established in the Basic Law. As an international treaty, the Convention has the same rank as an ordinary law (under Article 25 of the Basic Law) and can thus be superseded by later federal law. Still, 124

Eberhard Schmidt-Aßmann (2004) at 1003; Klaus Stern (1984) at 791. 126 Klaus Stern (1992) at 88. German Basic Law 1949, art 93(1) sub (4)(a). 127 German Basic Law 1949, art 93(1) sub (2)(a); Rainer Grote (1999) at 287. 128 129 German Basic Law 1949, art 93(1) sub 2. German Basic Law 1949, art 100(1). 130 Ernst-Wolfgang Böckenförde, ‘Demokratie als Verfassungsprinzip’ in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland (Band I) (Heidelberg: Müller, 1987) 887–952 at 941; Reinhold Zippelius and Thomas Würtenberger (2008) at 107–8. 131 132 Rainer Grote (1999) at 289. Rainer Grote (1999) at 289. 133 Andreas Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts, Der Europäische Verfassungsgerichtsverbund’ (2010) European Constitutional Law Review 6(2) at 192. 134 Federal Constitutional Court, 2 BvE 2/08, 30 June 2009; Andreas Voßkuhle (2010) at 194. 135 Andreas Voßkuhle (2010) at 196. 125

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the FCC has given the Convention a more central role: namely as a constitutional standard of review. If courts fail to comply with the obligation to take the Convention into account when interpreting the German catalogue of human rights, their acts can be challenged via a constitutional complaint.136 The FCC interprets the rights protected in the Basic Law as much as possible in conformity with the Convention as interpreted by the ECtHR.137

2.3.3 The French État de droit concept Although the highest French administrative court speaks only of a ‘principe de legalité’ when reviewing the constitutionality of parliamentary laws, in legal writings the review procedure is described in terms of État de droit.138 État de droit means that the state rules through law. État de droit is primarily aimed at the protection against arbitrary power through the principle of legality, which demands that laws are general and prospective. Furthermore, État de droit adds to these requirements the separation of powers, democracy, and the constitutional review of laws.139 The concept of the État de droit must be understood in the light of the Declaration of the Rights of Man and of the Citizen of 1789 (‘the Declaration’). Article 16 of the Declaration clearly states that ‘[a]ny society in which no provision is made for guaranteeing rights or for the separation of powers has no Constitution.’ Thus, two central aspects of the État de droit concept are the protection of constitutional rights and the doctrine of separation of powers. Although the supremacy of the constitution has been widely accepted in France since the time of the French Revolution, the constitution was nonetheless amended several times, and no practical methods were designed to protect its supremacy. No constitutional review was established. As a consequence, the État de droit became increasingly associated with the concept of legality as the supremacy of legislation.140 The supremacy of parliament was held in high esteem.141 Arbitrary rule was seen to be precluded by democracy. As parliament was supposed to express the general will through its laws, no particular group of people was ruling. Thus, the concept of the État de droit was influenced by Rousseau and his idea of the ‘volonté générale’, or general will.142 Arbitrariness was equated with the rule of the few. In France there has traditionally been a distrust of the judiciary due to its negative role prior to the French Revolution.143 The judges obstructed the legislative 136

Andreas Voßkuhle (2010) at 188. Order of the Second Senate, Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004, at 63. 138 Order of the Second Senate, 14 October 2004, at 294. 139 Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 74–6. 140 Dominique Rousseau, ‘L’élaboration de la loi et l’action du juge’ (1998) Le Droit dans la Societé,Cahiers Français 288 (October–December) at 10. 141 Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 654. 142 Jean-Jacques Rousseau, Het Maatschappelijk Verdrag, of Beginselen der Staatsinrichting (Amsterdam: Boom, 2002), Book 2, Chap 1. 143 Jeremy Jennings, ‘From “Imperial State” to “L’État de Droit”:  Benjamin Constant, Blandine Kriegel and the Reform of the French Constitution’ (1996) Political Studies XLIV at 490; Jacques Chevallier (2003) at 66. 137

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reforms the monarchy sought to introduce. This was one of the reasons the Conseil Constitutionnel took such a long time to be established.144 The French concept of the État de droit has changed in the twentieth century. Carré de Malberg was the first to develop a new French theory on the rule of law, with the protection of human rights at the heart of his conception of the État de droit.145 These developments in the ideas about the État de droit were later reflected in institutional changes. In 1958 the Conseil Constitutionnel was set up and endowed with certain powers to oversee parliament.146 It was given the task of checking that parliament and government did not overstep their legislative competence.147 There was a turning point in the case law of the Conseil Constitutionnel in 1971,148 when it became the guarantor of constitutional rights.149 When reviewing the constitutionality of statutes, the Conseil takes into account the Preamble of the Constitution, which refers to the Declaration and to the Preamble of the 1946 Constitution. In this indirect manner, the Conseil has qualified the rights provisions contained in these instruments as binding principles.150 Before statutes are promulgated they can be placed before the Conseil Constitutionnel, which looks into their constitutionality.151 Thus the constitutional review undertaken by the Conseil is limited to an abstract review.152 With regard to parliamentary laws, the review is optional and not obligatory.153 When parliamentary laws are not subjected to the abstract review of the Conseil Constitutionnel, they are not subject to any form of control.154 The Conseil d’État, which was created by Napoleon in 1799, has both advisory and judicial powers. The Conseil d’État delivers opinions on legislative and administrative matters and thus takes part in the legislative process.155 It is also the highest administrative tribunal and functions as a supreme court in administrative cases.

144 Christian Dadomo and Susan Farran, The French Legal System (London:  Sweet & Maxwell, 1993) at 107. 145 ‘[A]vec Carré de Malberg, qu’il n’y avait pas d’État de droit sans rapport avec la doctrine des droit individuels’: Olivier Duhamel and Yves Meny (eds), Dictionnaire Constitutionnel (Paris: Presses Universitaires de France, 1992) at 415–18. 146 Christian Dadomo and Susan Farran (1993) at 108–9; Rainer Grote (1999) at 293–4. 147 Christian Dadomo and Susan Farran (1993) at 108. 148 In this respect the decision of 16 July 1971, ‘liberté d’association’, is especially important; Jacques Chevallier (2003) at 85; Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 714; Jean Rivero and Jean Waline, Droit Administratif, 21st edn (Paris: Dalloz, 2006) at 277. 149 Dominique Rousseau (1998) at 11; Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 646. 150 Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 646, 714; Rainer Grote (1999) at 294; Constantijn Kortmann, ‘The French Republic’ in Lucas Prakke and Constantijn Kortmann (eds), Constitutional Law of the 15 EU Member States (Deventer: Kluwer, 2004) at 284. 151 French Constitution 1958, art 61. 152 Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 703. 153 French Constitution1958, art 61; Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 701–2. 154 Jean Rivero and Jean Waline (2006) at 255. 155 Christian Dadomo and Susan Farran (1993) at 90.

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Judicial review of administrative acts is a central aspect of the État de droit.156 A strict separation exists between the ordinary courts and the administrative courts. This is derived from the doctrine of the separation of powers and ensures the separation of the judiciary from the executive.157 The administrative tribunals, which are formally part of the administrative power, have become more and more independent of this power, partly under the influence of the fair trial guarantee of the Convention.158 The Conseil d’État and the lower administrative tribunals increasingly take into account constitutional rights when they review the legality of administrative acts.159 However, in cases that concern individual liberties or privacy, a civil judge rather than an administrative court is competent to rule on the legality of governmental acts.160 Legality is understood both in relation to democracy and the volonté général, as well as in relation to constitutional rights. The French legal system distinguishes between parliamentary laws and governmental regulations. Since the last constitutional amendment in 1958, parliament may no longer legislate in certain areas of law where only the government may issue regulations.161 Thus, it could be said that the importance of the democratic heritage of laws has diminished.162 At the same time, regulations are of a lower order than parliamentary laws, and must conform to general principles of law.163 The law can only be understood to be an expression of the volonté général if it conforms to the Constitution.164 The Constitution has the highest place in the hierarchy of sources and is thus of a higher order than international treaties, including EU law and human rights treaties.165 Nonetheless, Chevalier wonders whether the human rights that are protected by the ECtHR, as well as by the EU, and which control the legislative power, should not be understood as a supra-national source of law.166 There is still discussion about the clash between democracy and constitutional review and the distrust concerning the development of a government of judges.167 Legality in France has traditionally been understood mostly in a formal sense, as a demand for a hierarchy of legal sources.168 Still, legality has developed into a more substantive concept which demands that laws conform to the Constitution and, more specifically, to constitutional rights.169 Hierarchy of legal norms is thus no longer purely formal, as constitutional rights are placed in the highest position.170

156

157 Jacques Chevallier (2003) at 72. Jean Rivero and Jean Waline (2006) at 17–18, 471. Jacques Chevallier (2003) at 77. 159 Jacques Chevallier (2003) at 77; Rainer Grote (1999) at 292–3; Jean Rivero and Jean Waline (2006) at 268. 160 Jean Rivero and Jean Waline (2006) at 18, 499–502. 161 Jean Rivero and Jean Waline (2006) at 251–2. 162 163 Christian Starck (1995) at 602. Jean Rivero and Jean Waline (2006) at 25, 254–5. 164 Dominique Rousseau (1998) at 9; Franz C. Mayer (2002) at 15; Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 646, 693. 165 166 Jean Rivero and Jean Waline (2006) at 273. Jacques Chevallier (2003) at 109. 167 Dominique Rousseau (1998) at 14; Jeremy Jennings (1996) at 494; Francis Hamon, Michel Troper, and Georges Burdeau (1999) at 722; Jacques Chevallier (2003) at 87. 168 169 Andre-Jean Arnaud (1993). Jacques Chevallier (2003) at 73, 81. 170 Jean Rivero and Jean Waline (2006) at 25, 273. 158

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In addition, the Conseil Constitutionnel and the Court de Cassation have developed a standard of legality which requires laws to be accessible and intelligible.171

2.4 Analysis In summary, it is clear that the rule of law not only takes different forms in the states in which it came into existence, but it has also developed over time to meet new social and political demands within states.172 The descriptions of three national forms of the rule of law have shown that the rule of law is a product of historical development. The rule of law is closely tied to the existing legal traditions. It has been strongly influenced by theoretical accounts of the rule of law, such as Dicey’s description of the relation between common law and the protection of individual liberty, and Montesqieu’s ideas concerning the separation of powers. Also, it is difficult to analyse the different elements of the rule of law in isolation from its institutional setting and historical context. In Germany, the Second World War has led to a shift from a strictly formal to a substantive Rechtsstaat concept. In the United Kingdom, individual liberty was long understood to be best protected through the judicial safeguards developed through common law. In France, distrust of the judiciary and the high esteem in which the volonté générale is held have precluded the establishment of a system of constitutional review. In these three national legal systems, legality is a central element of the rule of law. The notion that the administration must act on the basis of law is present in all of them. They all include a demand that the law respect certain quality requirements. In the United Kingdom, these are developed through judicial review, whereas in Germany they are based on codified constitutional law. Thus the basic notion of legality is similar, but the institutionalization differs. Aside from these common aspects, legality sets different requirements in these countries. In France and, especially, in Germany, a clear hierarchy of legal norms exists, as law must conform to the constitution. In the United Kingdom, the doctrine of the sovereignty of parliament ensures that the democratic heritage of law continues to be a central requirement of legality. Also, the three legal systems have specific notions of the sources of law. For example, precedent has a central role in the United Kingdom, and in France there is a strict separation between the areas of law assigned to parliamentary legislation and the areas covered by governmental regulation. Judicial review and the independence of the judiciary are understood as an element of the rule of law, Rechtsstaat, and État de droit concepts. The manner in which the judiciary and judicial review is organized differs considerably. In France, the administrative tribunals are not part of the judiciary, whereas in Germany they are part of the judiciary; in the United Kingdom the ordinary courts deal with administrative cases.173 The review of proportionality of governmental acts, which was 171 Frédéric Sudre, Jean-Pierre Marguénaud, Joël Andriantsimbazovina, Adeline Gouttenoire, and Michel Levinet, Les grands arrêts de la Cour européenne des Droits de l’Homme (Paris:  Presses Universitaires de France, 2003) at 48–50; Jacques Chevallier (2003) at 101. 172 Olivier Duhamel and Yves Meny (eds) (1992) at 415–18. 173 Jacques Chevallier (2003) at 72–3.

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originally a German legal concept understood as an element of the rule of law, has also become one of the elements of judicial review in the United Kingdom under the influence of European law. Thus judicial review has become more concerned with the substantive contents of governmental acts. The separation of powers is, in all three countries, understood as an element of the rule of law, but the specific manner in which the powers of government are divided, and the control between the different powers is organized, differs considerably between them. A strict separation of powers cannot be said to form part of the UK rule of law concept; only the independence of the judiciary forms an element of the rule of law in the United Kingdom. Constitutional rights protection is a central element of all three types of governmental organization. Constitutional rights are part of the German and the French constitutions and rule of law concepts.174 In Germany, both abstract and concrete constitutional review of laws is possible, whereas in France, only abstract review of legislation to check compatibility with human rights can be undertaken. No special constitutional court exists in the United Kingdom, but under the Human Rights Act there is now some form of judicial review of parliamentary laws, even though, in name, the sovereignty of parliament is maintained. Notwithstanding the differences in organization, in all three states the protection of human rights has been made increasingly effective through judicial review procedures and the position of the judiciary vis-à-vis the other powers of government has become stronger.175 This development is—at least partly—due to the influence of the ECtHR. This influence is reinforced by the European Court of Justice (‘ECJ’). The ECJ refers in its rulings to the Convention as a special source of inspiration for the general principles of EU law.176 The preamble of the Charter of Fundamental Rights of the EU explicitly refers to the case law of the ECtHR.177 However, the manner in which a balance is achieved between the democratic ability to change the law and the legal limitations placed upon this ability is different in these countries. In France and, especially, the United Kingdom, the democratic will of the majority continues to be held in high regard. A  system of liberties protected by the common law has been the main guarantee of individual rights in the United Kingdom. The Human Rights Act has curbed the sovereignty of parliament by allowing some form of review of laws. In France, parliament itself has been entrusted to ensure that laws are not contrary to fundamental rights, as advised by the Conseil Constitutionnel. The democratic will in France has in recent years also been reined in through more extensive review powers of courts. In contrast, the German Basic Law limits the decision-making power of democracy by a

174 Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford:  Oxford University Press, 2000) at 29. 175 Jacques Chevallier (1998) at 8; Olivier Duhamel and Yves Meny (eds) (1992) at 415–18. 176 Paul Craig and Gráinne de Búrca (2008) at 383. 177 The preamble of the Charter of Fundamental Rights of the EU (2000/C/364/01) reads: ‘This Charter reaffirms . . . the rights as they result . . . from . . . the case-law of the Court of Justice of the European Union and of the European Court of Human Rights.’

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constitution of which certain elements may not be amended. Further, parliamentary laws are subject to the abstract and concrete review of the FCC. The description of the three national legal systems has shown how the balance between democracy and human rights protection is no longer a question that can be determined solely by reference to domestic law. The increasing importance of international and European laws and procedures influences this balance in favour of the judicial protection of human rights. Human rights law and international legal procedures, such as the individual application procedure before the ECtHR, in particular, pose a current challenge to legal thinking on the rule of law. Human rights protection through international laws and procedures is ideally conceived as an extra safeguard of the national rule of law by setting limitations on the democratic ability to change the law.178

3 Legality: The Central Element of the Rule of Law Concept 3.1 Different forms of legality Legality lies at the heart of the rule of law concept and is connected to all aims and elements that are understood as part of the rule of law. As seen in the above descriptions of the national forms of the rule of law, legality has different connotations and meanings, depending on the institutional form the rule of law is given. What is meant by ‘law’ differs considerably in different legal orders. Legality can include a requirement for democratic laws. For instance, most European legal systems require laws and regulations to be based on a law enacted by parliament.179 Also, legality can accept precedent as a form of law, or require a hierarchy of sources. For example, France has instituted a constitutional order, and legality there includes a requirement that all laws conform to constitutional rights standards. All in all, within the context of particular legal systems, legality can have diverse meanings. The diversity is the result of the different balance that is struck in different countries between the different powers of government and also between the requirements for democratic laws and constitutional review. The view of legality that is concerned with a hierarchy of norms will be dealt with in the paragraphs that concern human rights and the rule of law. The view of legality that includes a demand that laws are democratically made will be dealt with in the sections that concern the rule of law and democracy. As has been described, legality is understood, first, in the formal sense as a demand that government only operates through law and remains within the boundaries of competences described by law. In other words, legality in essence means the strict

178 Laurence R. Helfer, ‘Redesigning the European Court of Human Rights:  Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) European Journal of International Law 19(1) at 136. 179 Rainer Grote and Konstantin Meljnik, EMRK/GG:  Konkordanzkommentar zum Europäischen und Deutschen Grundrechtsschutz (Tübingen: Mohr Siebeck, 2006) at 354.

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adherence to law, prescription, or doctrine.180 This view of legality corresponds with the narrowest conception of the rule of law defined as ‘rule by law’.181 As was described above, strict adherence to law does not form a real limitation of arbitrary power. Other elements must be added. By setting quality criteria, legality can ensure—at least to a certain extent—that public power is kept in check. The following text will focus on the conception of legality as requiring law to conform to certain quality requirements. This conception of legality is not only generally accepted in theoretical accounts of the rule of law; it also fits different systems of law. In most legal systems, principles of law are found that can be understood as quality requirements set to law. As we have seen, in the three European states discussed above, legality also demands that law must have a particular form: it must conform to requirements such as generality and certainty. Accordingly, a legality concept which demands that the law conforms to the requirements of generality, clarity, and non-retroactivity is at the core of the rule of law. Also, this conception of legality is generally accepted in practice as well as in theory. Moreover, this conception of legality has value beyond the context of a particular legal system as it can be applied in any legal system. For this reason, a more detailed analysis of legality—the demand that law conforms to the requirements of generality, certainty, and stability—will follow.

3.2 Quality requirements of legality Fuller has given an elaborate and sophisticated account of legality as a concept that sets quality requirements to law. Fuller tells the parable of King Rex, who fails to set up a legal system for his kingdom in eight different ways, which correspond to a set of eight requirements which must be fulfilled for law to exist. These requirements are the requirements of legality. According to Fuller, a failure to comply with these requirements results in no legal system existing at all. The eight requirements of legality are the following: laws must be general, laws must be promulgated, laws should not be retroactive, laws should be clear, laws should not contradict, laws should not require the impossible, laws should be relatively constant over time, and there must be congruence between official action and the declared rules.182 A short description of these eight elements of legality will be given here: 1. Generality essentially requires that there are rules. Law must be more than patternless exercises of political power. 2. Promulgation requires that laws are published so that they can be known by the public. 3. Retroactive laws are not allowed, as such laws cannot function as a guide to people’s behaviour. Still, exceptions are sometimes allowed to cure irregularities 180 Bryan A. Garner, Black’s Law Dictionary, 8th edn (St Paul:  Thomson West, 2004); Garrett Barden, ‘Legality’ in Christopher Berry Gray (ed), The Philosophy of Law, an Encyclopedia (New York/ London: Garland Publishing, 1999) at 489–91. 181 See sect 2.1 in the text around n 18. 182 Lon L. Fuller, The Morality of Law (New Haven/London: Yale University Press, 1969) at 46–91.

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5.

6.

7.

8.

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of form, and courts may also sometimes issue a judgment interpreting a law which could lead to retroactive application of their interpretation of the law. Clarity of the law requires laws to be sufficiently precise, such that the required precision of the law depends on the existence of commonly accepted standards. General words, such as fairness, can have a definite meaning where a body of established practice exists. The requirement that laws may not contradict simply entails that the legislature should endeavour not to include conflicting provisions within a single law or enact a law that negates the object of (a provision of ) another law. Laws requiring the impossible are incompatible with legality, because one’s conduct cannot be guided by such laws. The main example is a strict form of liability which can assign responsibility for occurrences that lie beyond a person’s powers. Stability of the law is important in a similar vein: it allows individuals to be guided by the law. When the law changes frequently it becomes more difficult to conform to the law. There must be congruence between official acts and declared rules; this last requirement entails that some form of control over government must be instituted. Normally this control function is taken up by the judiciary. Consequently, a pressing question is how far the judiciary’s power extends in independently interpreting the law.183

The requirements of legality are not easily codified; principles such as generality, non-retroactivity, and clarity are typically principles that are developed in case law. By their customary nature and the wealth of experience that exists in this field, these requirements do not lend themselves readily to being written down in a restricted set of precise principles.184 Furthermore, the precise demands that follow from legality in specific cases will remain open to debate, as the requirements are general and must be balanced against each other.185 Fuller wrote that lawmakers and appliers should aspire to reach the requirements of legality, but to fully achieve them would be impossible, as these requirements need to be balanced against each other. Legality is an ideal—it can be strived for, but can never be fully realized.186 In addition, the requirements of legality set different standards for different areas of law.187 With regard to criminal law it is especially important that government abides by the rules, as government interference in this area of the law has a particularly strong impact upon the lives of individuals. The principle of non-retroactivity is,

183

Lon L. Fuller (1969) at 46–91. ‘[T]he Rule of Law principles, as part of natural law, developed over centuries during critical discussions of existing legal orders. Thus, they are embedded in customary law. [translation by the author]’ Neil MacCormick (1984) at 69. 185 Lon L. Fuller (1969) at 94. 186 Lon L. Fuller (1969) at 41–4, F.A. Hayek, The Constitution of Liberty (London/Henley: Routledge & Kegan Paul, 1976) at 205–6. 187 Lon L. Fuller (1969) at 93. 184

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for this reason, more exacting in relation to criminal law than it is in relation to other areas of law. This principle is also generally codified as a strict rule in most legal systems.188 The ideas of Fuller concerning the principle of legality are shared by many writers on legal theory.189 Tamanaha sees Fuller’s requirements of legality as the core element of the rule of law.190 Waldron shares Fuller’s notions on the requirements of legality that form part of the concept of law.191 MacCormick includes generality, promulgation, stability, and non-retroactivity as requirements of legality.192 Hayek also lists certain principles to which the law must conform, which overlap with the principles of legality as developed by Fuller. He includes the demands of prospective law, equality before the law, and certainty of the law.193 Furthermore, he places great emphasis on the need for abstract, general law as a contrast to specific commands.194 Raz mentions, amongst others, non-retroactivity, stability, generality, and principles concerned with the independence, access, and review powers of courts as principles of the rule of law.195 The exact number of the requirements of legality and their precise content remains open for discussion and will also develop over time.196 Still, the most authoritative list covers those principles that are also included by other authors. Thus, the following six requirements should as a minimum be understood as part of legality: generality, promulgation, non-retroactivity, clarity, stability, and congruence between official acts and declared rules. These six requirements must be seen as central legality requirements. The two other requirements mentioned by Fuller—that laws should not contradict and should not require the impossible—could also be understood as part of the clarity requirement. Generality, especially, is a difficult requirement, because in present-day society law has become very detailed due to the increase in governmental tasks.197 It has been argued that the demand of generality cannot be upheld in a welfare state, where many specific regulations are called for.198 Furthermore, law-making is no longer 188 French Constitution, art 66; German Basic Law, art 103(2); Bryan A. Garner (2004); Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009) at 241; Ward Ferdinandusse, ‘Direct Application of International Criminal Law in National Courts’ dissertation, University of Amsterdam, Faculty of Law, 2005, available at: ) (last accessed 27 July 2013) at 226. 189 C.T. Ten, ‘Constitutionalism and the Rule of Law’ in Robert E. Goodin and Philip Pettit (eds), A Companion to Contemporary Political Philosophy (Oxford:  Blackwell Publishers, 1993) at 397; John Rawls, A Theory of Justice, revised edn (Cambridge, Massachusetts:  The Belknap Press of Harvard University Press, 1999) at 209; Jacques Chevallier (2003) at 101; P.W. Brouwer (2003) at 64–77; Patricia Popelier (1997) at 190; Carla Martina Zoethout, Constitutionalisme, een Vergelijkend Onderzoek naar het Beperken van Overheidsmacht door het Recht (Gouda/Rotterdam: Quint, Sanders Instituut:  1995) at 270–2. 190 Brian Z. Tamanaha (2004) at 93. 191 Jeremy Waldron, ‘The Concept and the Rule of Law’ (2008) Georgia Law Review 43 at 58–9. 192 These are seen by MacCormick as the Rule of Law principles, which he also reads into para 136 of Locke’s second treatise (Neil MacCormick (1984) at 68). 193 194 F.A. Hayek (1976) at 205–10. F.A. Hayek (1976) at 210 and 154–5. 195 196 Joseph Raz (1979) at 214–18. Patricia Popelier (1997) at 209–44. 197 Jacques Chevallier (2003) at 98. 198 Edward L. Rubin, ‘Law and Legislation in the Administrative State’ (1989) Columbia Law Review (89) at 395; Patricia Popelier (1997) at 229–30; Eberhard Schmidt-Aßmann (2004) at 1005;

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solely the preserve of parliament; the executive power has also increasingly acquired law-making power, as a corollary of the broader functions it has been given in the modern state.199 As both parliament and the executive have law-making power, the requirement of generality also concerns the question of how detailed or precise the laws that delegate law-making power to the executive must be. MacCormick explains that the generality requirement involves a balance: rules must be general, but not too general, as they must allow for discretion in deciding how to apply a law in a specific case.200 Raz also notes the importance of generality, and finds a different solution to balance the need for detailed rules with generality. According to Raz, not all law must be general, but only the making of particular rules should be guided by open, stable, and general rules.201 This seems the best way to reconcile the need for specific rules with the requirement of generality. It also appears that Fuller’s view of generality is similar to that of Raz, as he notes that generality does not entail that all laws must act impersonally and only to classes of people. Rather, generality requires that there must be rules and not only random exercises of political power.202 Thus, generality is best understood as the demand for general rules which constitute a legal system within which more specific rules can be ordered.203 A point of controversy is whether the requirements of legality are inherent in the concept of law. This is a point argued by Fuller, as he explains that a legal system needs to fulfil a number of requirements in order to be counted as a legal system. Also, the requirements of legality determine what form law must have to be able to function as law. The requirements of legality constitute the rule of law, in the opinion of Fuller. Thus, the rule of law is seen by him as a prerequisite for the existence of law.204 Also, Dworkin has described Fuller’s eight requirements of legality as the ‘criterial standards locked into law’s vocabulary’, and consequently he also understands the requirements of legality to be part of the concept of law.205 Waldron, too, sees the rule of law as part of the concept of law.206 In contrast to Fuller, Hart’s positivist theory of law tries to give definite answers to the question of what constitutes a law and what does not. Hart’s concept of law describes law as a union of primary rules of obligation with secondary rules of recognition, change, and adjudication, ultimately based on a rule of recognition. Whether a specific rule is regarded as law depends upon the manner in which it was created, and not the form of the law.207 It is, however, most logical to understand legality as inherent to the concept of law itself. It is conceivable that a system of effective social control is called law even if it fails to adhere to the requirements of legality. Even so, law does not appear to be the right term for such a system. Law is best understood as a purposeful enterprise which is directed at guiding the behaviour of individuals. To direct the behaviour P. de. Haan, T. G. Drupsteen, and R. Fernhout, Bestuursrecht in de Sociale Rechtsstaat (Deventer: Kluwer, 2001) at 29. 199 200 Edward L. Rubin (1989) at 391. Neil MacCormick (1984) at 68. 201 202 Joseph Raz (1979) at 215–16. Lon L. Fuller (1969) at 47–9. 203 204 Lon L. Fuller (1969) at 47–9. Lon L. Fuller (1969) at 39. 205 Ronald Dworkin, ‘Philosophy, Morality, and Law—Observations Prompted by Professor Fuller’s Novel Claim’ (1965) University of Pennsylvania Law Review 113 at 686. 206 Jeremy Waldron (2008) at 42–3. 207 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994) at 250.

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of individuals, law must be perceived by them as authoritative. When law fails to meet the requirements of legality, its authority can merely be based on enforcement. Only the ability of law to ensure order in society would remain as a reason to respect the law.

3.3 Judicial safeguards as requirements of legality Most of the requirements of legality, such as clarity and stability, are first addressed to the legislature. These requirements namely concern the form that law should take. A complicating factor here is that in the administrative state, rule-making power largely resides in the executive power.208 To the extent the executive has rule-making power, it must also take into account the requirements of legality which determine the form the law must have. The other powers of government also play an important role in maintaining the requirements of legality. One of the requirements of legality— the demand of congruence between the law and official acts—is addressed both to the executive and the judiciary. This requirement first entails that the administrative power must act according to the law.209 Legality requires government to act on the basis of law and within the limitations set by law.210 Secondly, it is the judiciary that is entrusted with the task of preventing discrepancy between the law and acts of government.211 For this reason, judicial review must be understood as one of the requirements of legality. Furthermore, judicial review is implied by the rule of law.212 Judicial review must be understood as the control by the judiciary, in individual cases, over the legality of all acts of government that affect individual rights. In other words, the judiciary checks that government has kept within the boundaries of the law when the rights of individuals are affected. How far the powers of the judiciary actually reach in relation to the powers of the executive is a difficult question, which depends on the specific form that is given to the separation of powers. For instance, it is disputed whether the judiciary can replace an illegal governmental decision with its own decision. However, the need for a minimum form of review is beyond dispute.213 Legality requires that the judiciary can review governmental acts at least in a marginal sense, and judge whether government has remained within the boundaries of the law.

208

Edward L. Rubin (1989) at 391. Jonathan Soeharno, ‘From Guardian of the Rechtsstaat to Ruler in the Rule of Law:  An Inquiry into the Increased Role of the Judiciary’ in Aukje van Hoek, Ton Hol, Oswald Jansen, Peter Rijpkema, and Rob Widdershoven (eds), Multilevel Governance in Enforcement and Adjudication (Antwerp: Intersentia, 2006) at 157. 210 Jacques Chevallier (2003) at 71. 211 However other actors, such as an ombudsman, can play an important complementary role, especially because of the time and money constraints of litigation as a means of correcting abuses of power. Lon L. Fuller (1969) at 81. 212 Rainer Arnold, ‘European Constitutionalism after the Second World War’ in S. Galera (ed), Judicial Review, a Comparative Analysis inside the European Legal System (Strasbourg:  Council of Europe Publishing, 2010) at 37. 213 Tom Bingham (2010) at 61; Jeremy Waldron (2006), ‘The Core of the Case against Judicial Review’, Yale Law Journal 115 at 1354. 209

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The judiciary is central to the requirements of legality for another reason. In UK law, it is said that where there is no remedy, there is no right.214 This statement shows that without access to court, law remains law in the books. In cases of legal conflict, access to court is necessary to resolve these conflicts and ensure that law is applied.215 Also, without access to court, people would take the law into their own hands, which would lead to disorder.216 Access to court must, therefore, be understood as essential to a functioning legal system. In addition, the judiciary must apply minimum procedural principles of fairness and impartiality to fulfil its function. Hart described the principles ‘audi alteram partem’ and ‘let no one be a judge in his own cause’—which in the UK legal system are known as the principles of natural justice—as elements of the concept of law.217 The principles of natural justice are broad principles that denote the right to a fair and impartial hearing.218 Hart understands these principles, together with the principle of the equal application of law, as inherent in the concept of law.219 There is similarity to Fuller’s ideas, where the requirements of legality are seen as part of law itself.220 However, Hart focuses on procedural principles, whereas Fuller mostly concentrates on the form law should take. Raz also describes the right to a fair hearing and the accessibility of courts as central elements of the rule of law, next to the requirements of legality such as stability and non-retroactivity.221 The requirements of legality can only be upheld if an independent judiciary exists that applies law in particular cases. The central requirement of legality is the generality of the law. This is often codified as the requirement that all should be equal before the law. The generality of the law also means that law must be equally applied in equal cases. In the setting of adjudication, equality entails that like cases are treated alike, and that no one should be a judge in his own cause. The notion that law must be impartial and blind to the identity of the disputants was developed by Aristotle. It is a self-evident part of our concept of law and a cornerstone of the modern rule of law concept.222 Equality before the law is thus closely linked to the notion of the impartiality of the law. Only through a fair and impartial hearing can the law be equally applied in equal cases. The equal application of the rules—treating like cases alike—must be understood as an inherent element of law.223 Thus, the requirements of legality as formulated by Fuller are primarily addressed to the legislature. They are complemented by the procedural principles of access to court and equality before the law. At the same time, the equal application of the law in equal cases is only possible where law conforms to the requirement of generality. 214

215 Albert Venn Dicey (1959) at 199. Lon L. Fuller (1969) at 56. Eberhard Schmidt-Aßmann (2004) at 1025; Borstjan M. Zupancic (2003) at 70. 217 218 H.L.A. Hart (1994) at 160. William Wade and Christopher Forsyth (2009) at 402. 219 220 H.L.A. Hart (1994) at 161. Lon L. Fuller (1969) at 39. 221 Joseph Raz (1979) at 217. 222 Richard A. Posner, ‘Corrective Justice’ in Christopher Berry Gray (ed), The Philosophy of Law, an Encyclopedia (Vol I) (New York/London: Garland Publishing, 1999) 163–5; ‘It shall ensure the equality of all citizens before the law’: French Constitution 1958, art 1; ‘Alle Menschen sind vor dem Gesetz gleich.’ German Basic Law 1957, art 3(1). 223 H.L.A. Hart (1994) at 161. 216

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Only when law is clear, understandable, and general can law be applied equally and impartially. In conclusion, access to court must be understood as required by legality for two reasons. First, access to court is required to solve disputes and ensure that law does not remain law in the books. The procedural principle of access to court and the requirements of legality are related and interdependent. The generality of law also entails that the law must be equally applied in individual cases by the judiciary. Secondly, access to court is part of the requirements of legality, as judicial review is necessary to ensure that government remains within the boundaries of the law. Judicial review is a form of control to ensure that government acts within the boundaries set by the law. In sum, access to court ensures the integrity of the law and prevents government from acting arbitrarily. Legality must be understood as being concerned with both procedural safeguards during a trial and the application of the law by the executive.224 Thus, two procedural requirements must be added to the above-mentioned six requirements: generality, promulgation, non-retroactivity, clarity, stability, and the congruence between official acts and declared rules. First, there must be a possibility of judicial review over the legality of governmental acts. Secondly, the judiciary must provide individuals with access to a fair hearing in order to uphold equality before the law.

3.4 Legality setting limits to governmental power The requirements of legality can ensure that law is more than a bare instrument of power in the hands of the law-making power. The requirements of legality are meaningful because they comprise ideas on the form that law can take. Thus the notion that government must abide by the law acquires meaning.225 In contrast, when law is nothing more than an expression of the will of the sovereign, ‘governance through law’ cannot form a meaningful restraint on power. As long as government is required to act through law that conforms to the requirements of legality, government is limited, because law is a specific instrument which has a specific form.226 The rule of law, described as a set of quality requirements law must conform to, ensures the impartial and regular administration of rules and thus imposes constraints that are by no means negligible.227 Nonetheless, it has to be noted that legality can restrain governmental powers only to a certain extent, as the requirements of legality do not specify when government must act on the basis of law. There will always be areas of governance where government cannot easily act on the basis of law, such as foreign policy.228 Legality conceived as setting quality requirements to law goes beyond a formal conception of legality as ultra vires, or rule by law. Even though this form of legality is broader than a slim conception of legality as rule by law, it is still a formal 224 226 227

225 Garrett Barden (1999). Joseph Raz (1979) at 213. Jeremy Waldron (2008) at 11; Joseph Raz (1979) at 220. 228 John Rawls (1999) at 208. Brian Z. Tamanaha (2004) at 97.

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and abstract standard. This conception of legality does not set requirements for the material content of law. The formal nature of legality can be clarified in relation to the requirement of generality. Generality does not prohibit law from distinguishing between different groups of people. Generality cannot determine which distinctions are allowed and which are not.229 Thus, generality is a formal requirement set to law. Of course, other views of generality, which are concerned with the material content of law, are possible. For instance, Hayek noted how generality entails that law may only make distinctions if they are generally recognized by people in society; those who are affected by a specific rule, as well as those who are not.230 However, this view of generality is only applicable in relation to a specific society that shares similar values. In contrast, the concept of legality as described by Fuller does not depend on a consensus on material legal norms. Nor does this form of legality require a specific form in which governmental powers are organized, as it is not concerned with, for instance, the manner in which law-making power is delegated. Therefore, legality can be applied to different legal systems and does not depend upon the existence of particular institutions or a consensus on material norms. The requirements of legality are necessary to control government, as government itself is involved in the law-making process.231 In contrast, in a situation where law is derived from customs that have developed over time, the contrast between the rule of law and the rule of man is clear.232 In that situation, law cannot be deliberately changed. Dicey’s view of the rule of law as ‘the ordinary law of the land’ was, for instance, based on a conception of law as ‘a universal body of general rules which have evolved through time and which are enunciated by judges.’233 As long as the law is similar to the customs and the morality of a society, there is less need to set formal limitations of generality, clarity, and non-retroactivity to the law.234 However, the predominant view at present is that law is a system of rules that can be deliberately changed in a legislative process. The possibility of deliberately amending laws makes it necessary to set external standards with which law must conform.235

3.5 Legality and the substantive aims of law It is controversial whether legality—seen as the requirement that law must conform to certain quality requirements—can ensure that laws have content that is just. Fuller has asserted that the requirements of legality as formulated by him are

229

230 Brian Z. Tamanaha (2004) at 94. F.A. Hayek (1976) at 154. Anna Maria Bos (2001) at 37. 232 Rainer Grote (1999) at 273; Brian Z. Tamanaha (2004) at 28. 233 Martin Loughlin, ‘Dicey on the Rule of Law’ in Edward Craig (ed), Routledge Encyclopedia of Philosophy (London: Routledge, 1998). 234 Lon L. Fuller (1969) at 92–3. 235 Brian Z.  Tamanaha (2004) at 28; F.A. Hayek (1976) at 163; M.C. Burkens, H.R.B.M. Kummeling, B.P. Vermeulen, and R.J.G.M. Widdershoven, Beginselen van de Democratische Rechtsstaat, Inleiding tot de Grondslagen van het Nederlandse Staats- en Bestuursrecht, 4th edn (Deventer:  W.E.J. Tjeenk Willink, 1997) at 118. 231

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related to morality. In Fuller’s view, aspiring to legality is aspiring to a moral aim, as this is one of the ways in which humans can strive for excellence. Furthermore, Fuller claims that not every substantive aim may be pursued without compromising legality, and thus legality may promote moral law in certain cases. An example would be laws that discriminate racially. Such laws would not be possible, according to Fuller, because they would fail the requirement of generality. He also believes that the requirement that laws are promulgated will ensure public debate and thus better law. Fuller writes: ‘It is the virtue of a legal order conscientiously constructed and administered that it exposes to public scrutiny the rules by which it acts.’236 As a consequence, the internal and the external morality of law interact, according to Fuller.237 The assertion that the requirements of legality will lead to laws that have better material content is disputed.238 The term ‘morality’, which Fuller uses to explain the connection between the requirements of legality and the substantive content of law, is especially challenged.239 Dworkin has noted that the requirements of legality are not concerned with the material content of the law and are, therefore, not concerned with morality. ‘A legislature adopts a statute with an overlooked inconsistency so fundamental as to make the statute and empty form, leaving the law as it was before. Where is the immorality, or lapse of moral ideal? Failure to produce a law is not in itself a moral fault.’240 Raz also disagrees with Fuller’s assertion that the requirements of legality have any relation to morality. According to Raz, law is a tool and must have certain characteristics to fulfil its function properly. A knife must be sharp to function well, but the purpose for which it will be used is undetermined.241 Hart disagrees, too, with the assertion that the legality requirements lead to moral laws.242 He argues that the decision as to whether a certain action is moral or amoral can only be determined by the goal that is pursued. The requirements of legality result in a functioning legal system, but they do not exclude the law sanctioning immoral goals, because the material content of the law is not restricted by the requirements of legality.243 Hart argues that Fuller’s requirements of legality are ‘compatible with very great iniquity.’244 Furthermore, it has been noted that ‘[t]reating cases in a regular or uniform manner may be a necessary condition of justice, but it is not a sufficient condition.’245 For ‘until it is established what resemblances and differences are relevant, “treat like cases alike” must remain

236

237 Lon L. Fuller (1969) at 158. Lon L. Fuller (1969) at 153. Laws can have abject purposes and at the same time conform to the requirements of legality. As long as the substantive aims of a law are pursued through clear notions even laws that have morally abject aims—for instance laws promoting racial segregation—can be compatible with the requirements of legality (C.T. Ten (1993) at 398). 239 Lyons writes that Fuller’s use of the term morality is misleading, as it concerns effectiveness rather than fairness or justice (David Lyons, Ethics and the Rule of Law (Cambridge: Cambridge University Press, 1984) at 77). 240 241 Ronald Dworkin (1965) at 675. Joseph Raz (1979) at 225. 242 H.L.A. Hart (1994) at 185–6. 243 H.L.A. Hart, ‘Lon L. Fuller: “The Morality of Law” ’ (1965) Harvard Law Review 78 at 1287; Carla Martina Zoethout (1995) at 265. 244 245 H.L.A. Hart (1994) at 207. David Lyons (1984) at 83. 238

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an empty form.’246 Hayek writes that ‘no entirely satisfactory criterion has been found that would always tell us what kind of classification is compatible with equality before the law.’247 In addition, legality does not ensure material equality. If the rules themselves allow for inequality and are applied equally to all, they will instead enforce inequality.248 It is said that the law equally forbids the rich as well as the poor from sleeping under bridges.249 What is apparent is that there is agreement between Fuller and his critics over the idea that the requirements of legality are neutral towards substantive aims pursued through law. Fuller has noted that ‘[i]n presenting my analysis of the law’s internal morality I have insisted that it is, over a wide range of issues, indifferent toward the substantive aims of law and is ready to serve a variety of such aims with equal efficacy.’250 As a consequence, to ensure that laws are just, limitations must be set with regard to the material content of law. One possibility is to establish a hierarchy in law, in which all laws must conform to a constitution. Hart’s theory, for instance, includes the possibility that the rules of recognition of a specific legal system include moral principles or substantive values.251 Another possibility is to require laws to conform to norms of distributive justice, so that law will aim at an equal and fair distribution of resources; or, as Hayek suggests, laws should conform to more general rules which, though perhaps unwritten, are generally accepted in a society.252 Even though the requirements of legality cannot ensure the substantive justice of the law, these requirements are necessary to ensure substantive justice.253 The requirements of legality must be adhered to, to achieve other moral goals. Rawls writes that Fuller’s concept of the rule of law ‘will provide a more secure basis for liberty and a more effective means for organising cooperative schemes.’254 Furthermore, there is a higher likelihood that laws conforming to the requirements of legality will also promote substantive justice. Even though legality is only concerned with the form law can take, the form will influence the content of the law as well.255 When the form of the law must conform to quality requirements, it is more likely that the content of the law will also improve in quality. Lastly, the requirements of legality protect the autonomy and the equality of individuals. First, legality demands the equal application of rules; this ensures a certain type of equality, namely equality before the law. Secondly, legality ensures that law is clear, consistent, foreseeable, and understandable. Thus individuals can direct their behaviour to law’s requirements.256 General rules, in contrast to 246

247 H.L.A. Hart (1994) at 159–60. F. A. Hayek (1976) at 209. P.W. Brouwer (2003) at 71. 249 ‘ . . . la majestueuse égalité des lois interdit aux riches comme aux pauvres de coucher sous les ponts, de mendier dans la rue et de voler du pain.’ Anatole France, Le Lys Rouge, 14th edn (Calmann-Lévy, 1894) at 118. 250 251 Lon L. Fuller (1969) at 153. H.L.A. Hart (1994) at 250. 252 253 F.A. Hayek (1976) at 210. Joseph Raz (1979) at 225. 254 John Rawls (1999) at 208. 255 Pauline Westerman, ‘Means and Ends’ in Willem J. Witteveen and Wibren van der Burg (eds), Rediscovering Fuller (Amsterdam: Amsterdam University Press, 1999) at 167. 256 Joseph Raz (1979) at 220; P.W. Brouwer (2003) at 71–4. 248

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commands, leave the decision-making power with individuals, as they do not give particular directions but only general guidelines.257 When law conforms to the requirements of legality, the legal system is relatively stable and certain, which enables individuals to plan their lives and live an autonomous life.258 The concept of law that conforms to the requirements of legality is based on a view of man as a purposeful and autonomous being.259 Inherent in this view is the idea that a stable system of law has certain benefits. People will be able to plan their lives, and thus legality will favour individual autonomy.260 In addition, the rule of law, by requiring law to conform to the requirements of legality, ensures freedom under the law. Freedom under the law is a formal conception of freedom concerned with the limitation of arbitrary power rather than with limited government. This type of freedom—freedom as autonomy—is only possible where law has a certain form and is not so much concerned with the material content of the law. It does not provide absolute protection of the freedom of the individual, as it leaves open the areas that can be regulated by law. This form of freedom must not be mistaken for independence or the ability to do what one wants to do. ‘Liberty is the right to do everything the law permits: and if one citizen could do what they forbid, he would no longer have liberty because the others would likewise have this same power.’261 Freedom under the law is only possible where the law is general. Such freedom can be equated to autonomy, or the ability to make independent choices within the boundaries of the law.262 Freedom under the law demands a functioning legal system where general rules apply to everyone. Thus, the rule of law protects liberty by means of the requirements of legality. Legality protects liberty, because people can be confident in the possession and exercise of their freedoms. And in contrast, when the rule of law is not present, the boundaries of individual liberty are uncertain and in that manner they are restricted.263 To conclude, the requirements of legality do not necessarily lead to just laws and do not ensure material equality. The requirements of legality are general rules concerning the form law can take, but these rules do not specify the content of the law. At the same time, legality is a prerequisite for laws that lead to just outcomes. Also, when laws conform to the requirements of legality, there is a higher likelihood that the laws are just. Legality enables individuals to plan their lives. Legality is a moral ideal, but a limited moral ideal, which does not comprise substantive justice. Rather, legality embodies formal or procedural ideals.264 The legality principle is a formal element of the rule of law.

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258 F.A. Hayek (1976) at 153. Joseph Raz (1979) at 220–1; P.W. Brouwer (2003) 64–77. Douglas Sturm, ‘Lon Fuller’s Multidimensional Natural Law Theory’ (1966) Stanford Law Review 18 at 618; Lon L. Fuller (1969) at 162. 260 Joseph Raz (1979) at 220; P.W. Brouwer (2003) at 64–77. 261 Charles de Secondat Montesquieu, Baron de, De L’esprit des Lois (1748) in A. Cohler, B. Miller, and H. Stone (eds), The Spirit of the Laws (Cambridge: Cambridge University Press, 1989) Book 11, Chap 3, p 155. 262 263 F.A. Hayek (1976) at 156–7. John Rawls (1999) at 210. 264 Jeremy Waldron (2008) at 40–1. 259

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4 Separation of Powers, Judicial Safeguards, and the Rule of Law 4.1 The separation of powers doctrine Initially, the separation of powers doctrine mainly concerned the balancing of power between different groups in society.265 The earlier theories on the separation of powers were concerned with balancing or mixing different social groups and thus ensured that no group could dominate the rest.266 Such ideas depend upon the existence of class differences in a society. In the United Kingdom, the separation between the House of Lords and the House of Commons is a form of such balancing and mixing of different social groups that was instituted to ensure a limitation of powers. A balance of powers between different social groups presupposes the existence of class differences, which in many democratic states have mostly disappeared.267 In present accounts, the separation of powers theory is mostly concerned with a functional separation between the different powers of government. Three different legal tasks are distinguished and assigned to these three powers: the legislative powers, the executive powers, and the power of adjudication.268 The three powers of government are set up by law, and the law also assigns these three different functions to the different powers of government.269 Some form of functional separation of powers must be understood as an element of the rule of law.270 As was described in section 3.3, legality sets different requirements with which law must comply. Some of these requirements are directed towards the legislative power, others towards the executive power, and the procedural principles are aimed at the judiciary. The requirements of legality presuppose the existence of different powers of government that each fulfil a different function. At the same time, the functional separation ensures and upholds the authority and integrity of the law. The separation of powers provides no guidance regarding the material content of the law. Thus, similar to the requirements of legality, the separation of powers must be understood as a formal element of the rule of law. The functional separation of powers ensures that power is not exercised arbitrarily.271 This separation between the different powers of government ensures that those who have the capacity to enact general rules are not the same as those executing 265

Hasso Hofmann (1996) at 32. Richard Bellamy, ‘The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy’ (1996) Political Studies XLIV at 440–3. 267 Richard Bellamy (1996). 268 Charles de Secondat Montesquieu, Baron de (1989) Book 11, Chap 6, pp 156–7. 269 Klaus Stern (1984) at 793. 270 F.A. Hayek (1976) at 210; Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (The Hague: Martinus Nijhoff Publishers, 1998) at 213–14. 271 M. Scheltema, ‘De Rechtsstaat’ in J.W.M. Engels, C. Lambers, E. Niemeijer, M. Scheltema, K.F. Schuiling, B.C. Vis, and R.L. Vucsán (eds), De Rechtsstaat Herdacht (Zwolle:  Tjeenk Willink, 1989) at 19. 266

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those rules. Also, the separation of powers ensures that rules are not made with particular cases in mind, and that particular cases are decided only in the light of general rules. This is only possible when both tasks are performed by different bodies.272 Also, the functional separation of powers ensures that no one is a judge in his own case.273 In this manner, the functional separation of powers is a prerequisite for the generality of the law and equality before the law.274 As a consequence of the functional separation of power, the law cannot be abused as a tool to oppress individuals. If two powers can be exercised jointly, the risk of arbitrariness and abuse of power is still considerable.275 Consequently, the separation of powers protects against the abuse of the law for private purposes. If one man or institution held all three powers of making, applying, and adjudicating the law, it would be too tempting to abuse this power for private purposes.276 In addition, the functional separation of the three powers of government ensures the authority and integrity of the law. All powers of government need the cooperation of the other powers for the government to be able to govern effectively. The law is used by all three powers as the tool of government and the means of communication with the other powers.277 To the extent that the executive has a role in the process of legislation, statute law functions as a political pact between the legislature and the executive.278 For this reason, the powers of government must show respect for the law in order to make the other powers respect the law as well.279 The legislature must strive for understandable laws which the executive can follow and courts can interpret. In this manner, the functional separation of powers will be more likely to lead to laws that fulfil the requirement of clarity, stability, promulgation, non-retroactivity, and the congruence between official acts and declared rules. The functional separation of powers ensures the control of power. The different powers—legislative, administrative, and adjudicatory—must cooperate to fulfil their government functions; the result is that the different bodies control each other.280 The separation of powers doctrine is, on the one hand, a division of different powers, while on the other hand, a certain amount of cooperation between the different powers must be permitted as this cooperation ensures control. The people involved in the work of one of the powers of government must not be allowed to partake in the other functions of government as well. However, if a complete separation between

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273 F. A. Hayek (1976) at 210. Richard Bellamy (1996) at 437. Franz L. Neumann, ‘The Concept of Political Freedom’ in Scheuerman (ed), The Rule of Law under Siege (Berkeley: University of California Press, 1996) at 200. 275 Montesquieu wrote the following: ‘When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge could have the force of an oppressor’ (Charles de Secondat Montesquieu, Baron de (1989), Book 11, Chap 6, p 157). 276 John Locke (1689) ‘Second Treatise of Government’ in C.B. McPherson (ed), John Locke Second Treatise of Government (Indianapolis/Cambridge: Hackett Publishing, 1980) at para 143. 277 278 Richard Bellamy (1996) at 437–8. Hasso Hofmann (1996) at 25. 279 280 Hasso Hofmann (1996) at 25. Richard Bellamy (1996) at 455. 274

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the different powers is established, no control is possible. Therefore, there should be some functional overlap between the functions of the different powers. Particularly in comprehensive definitions of the rule of law, which include human rights protection or democracy, the separation of powers is a necessary element of the rule of law. It is the judiciary that protects the individual from arbitrary governmental interferences with fundamental rights.281 Also, the relation between a potential constitutional court and the legislature is governed by the separation of powers doctrine. The separation of powers in present national constitutional systems is also closely connected to democracy, as the legislative power rests with organs elected by the people.282 Democracy is only possible where laws enacted by parliament are executed and adjudicated by the other powers of government. Even though a functional separation of powers must be understood as part of the rule of law, a fully fledged theory on the separation of powers is not necessarily part of the rule of law. Where the boundaries lie between the different powers of government, and which power has highest authority, is contested and will depend upon particular circumstances. An example of such a difference of opinion is the question of the extent to which law-making power may be delegated to government by the legislature. Also, where case law is an established source of law, law-making authority is not only vested in parliament, but also in the judiciary. In a similar vein, in some countries parliamentary laws are considered to have the highest authority, whereas in other states a written constitution is regarded as the highest source of law. Different choices can be made, and the resulting different forms of the separation of powers are compatible with the rule of law. In conclusion, the functional separation of powers doctrine forms a limitation of arbitrary governmental power and upholds the authority and integrity of the law. Some form of functional separation of powers must be seen as an element of the rule of law. However, differences in the institutional form that is given to the separation of powers are compatible with the rule of law.

4.2 Safeguards by an independent judiciary As was noted under section 3.3, judicial review and access to an independent court to settle disputes must be understood as part of the rule of law. For this reason, the independence of the judiciary is an especially important element of the rule of law.283 This independence refers to the independence from both government and the parties to a dispute. 281 Ernst-Wolfgang Böckenförde, ‘Ist Demokratie eine Notwendige Forderung der Menschenrechte?’ in Stefan Gosepath and Georg Lohmann (eds), Philosophie der Menschenrechte (Frankfurt am Main: Suhrkamp, 1998) at 233–43; Martin Kriele, ‘Menschenrechte und Gewaltenteilung’ in Ernst-Wolfgang Böckenförde and Robert Spaemann (eds), Menschenrechte und Menschenwürde: Historische Voraussetzungen, Säkulare Gestalt, Christliches Verständnis (Stuttgart: Klett-Cotta, 1987) at 245. 282 Ernst-Wolfgang Böckenförde (1987) at 943–4. 283 Jacques Chevallier (2003) at 65; Franz L.  Neumann (1996) at 200; Martin Loughlin, ‘Judicial Independence and Judicial Review in Constitutional Democracies:  A  Note on Hamilton and Tocqueville’ in Christopher Forsyth, Mark Elliot, Swati Jhaveri, Michael Ramsden, and Anne Scully-Hill (eds), Effective Judicial Review:  A  Cornerstone of Good Governance (New  York:  Oxford

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First, it is the judiciary that controls the exercise of governmental power, through judicial review. As noted, judicial review must be understood as one of the requirements of legality. Judicial review is necessary to ensure that government acts only on the basis of law and through laws. The independence of the judiciary from the executive is necessary for effective judicial review.284 Secondly, the judiciary controls the respect for the law by individuals. Fair resolution of legal disputes is central to upholding respect for the law. The task of the judiciary concerns not only judicial review of government, but also the fair resolution of legal disputes between individuals. It is the judiciary that can provide remedies and thus ensure that law is adhered to and that rights can be legally enforced. The independence of the judiciary, both from the executive power as well as from the parties to the dispute, is necessary to uphold the integrity of the judicial process and thus also the quality of the law.285 The independence of the political powers of government allows the judiciary to decide cases only on the basis of legal considerations. It is because of this independence that the judiciary is most qualified to uphold respect for the law.286 Differences in regard to the organization of the judiciary and the extent of its powers to review governmental acts are compatible with the rule of law. A prominent difficulty here is the extent to which the judiciary may develop the law through interpretation.287 Another difficulty is whether the judiciary may exercise full review power over acts of government, or may only marginally review whether government has remained within the limits of the law. Review of the proportionality of governmental acts has become more common, and gives the judiciary some control over the substantive content of specific governmental acts.288 Access to the judiciary for judicial review of administrative acts is understood in the German, French and UK legal systems as an aspect of the rule of law, necessary to ensure that the administrative power acts according to the laws. The development of judicial review in administrative cases from pure ultra vires control to a more substantial control is a recent development which is the result of the increase in western welfare states of administrative law-making and administrative tasks.289 Even though a common trend can be seen, a general acceptance of the scope of the review powers of the judiciary—for instance, to review the proportionality of administrative acts— cannot be established. University Press, 2010) at 11; on the other hand, Nardin describes the existence of the judiciary as merely a ‘condition for the effectiveness of law’ (Terry Nardin (2004) at 398). 284 Martin Loughlin (2010) at 12. 285 Franz L. Neumann (1996) at 200; A.W. Bradley and K.D. Ewing (2003) at 370. 286 Jacques Chevallier (2003) at 65. 287 Gerhard van der Schyff, Judicial Review of Legislation, a Comparative Study of the United Kingdom, the Netherlands and South Africa (Dordrecht: Springer, 2010) at 58–9. 288 Tom Hickman (2008) at 699; B.J. Schueler, A.J. Nieuwenhuis, and C.M. Zoethout, ‘Slotbeschouwing’ in B.J. Schueler, A.J. Nieuwenhuis, and C.M. Zoethout (eds), Proportionaliteit in het Bestuursrecht (Deventer: Kluwer, 2005) at 218–19. 289 Frits Stroink, ‘Judicial Control of the Administration’s Discretionary Powers (Le Bilan Executif— Juge Administratif )’ in Rob Bakker, Aalt Willem Heringa, and Frits Stroink (eds), Judicial Control, Comparative Essays on Judicial Review (Antwerp: Maklu, 1995) at 96–7.

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Another area of contention is the extent of the review powers of courts over human rights. The manner in which human rights are protected shows the extent of the review powers of courts and the balance of powers between the judiciary and the other powers of government. In the three European legal systems discussed, the judiciary is assigned a central role in the protection of human rights. Judicial review and access to court are especially suitable for ensuring adequate human rights protection. It is the judiciary that can take the individual interests in a particular case into account, because it is placed at a distance from other governmental powers that have the task of promoting the public interest.290 Especially when individuals can institute a constitutional review procedure, the judiciary is given a central position to protect human rights.291 Still, other solutions are also possible for the upholding of the authority of a constitution, such as a system where parliament remains the supreme power.292 A distinction must be made between constitutional review in particular cases and abstract constitutional review.293 Abstract review should be set apart, as it could also be seen as an element of the legislative power because it does not concern judging particular cases.294 Furthermore, constitutional judicial review can be distinguished between review over the legislative and the executive functions of government.295 Constitutional review over the legislature, in particular, brings about tension with democratic principles.296 As human rights are, by nature, abstract and thus indeterminate in scope, a constitutional court that exercises review powers over legislation participates in the law-making process.297 To sum up, the independence of the judiciary is an important element of the rule of law. The extent of the review powers of courts, as well as the balance of powers between the judiciary and the other two powers of government, is closely tied up with the manner in which human rights are protected.

290 Peter Cane, ‘Judicial Review in the Age of Tribunals’ in Christopher Forsyth, Mark Elliot, Swati Jhaveri, Michael Ramsden, and Anne Scully-Hill (eds), Effective Judicial Review (Oxford:  Oxford University Press, 2010) at 121; Rainer Arnold (2010) at 43. 291 Bruno Aguilera, ‘Law as a Limit to Power—the Origins of the Rule of Law in the European Legal Tradition’ in S. Galera (ed), Judicial Review, a Comparative Analysis inside the European Legal System Strasbourg (Strasbourg: Council of Europe Publishing, 2010) at 24. 292 Alec Stone Sweet (2000) at 20. 293 Concrete review can be instituted through an individual application procedure or through procedures which facilitate dialogue between lower courts and a constitutional court with regard to the interpretation of the constitution (Alec Stone Sweet (2000) at 44–46). 294 Bruno Aguilera (2010) at 32; Alec Stone Sweet (2000) at 35. 295 Gerhard van der Schuyff, Judicial Review of Legislation, a Comparative Study of the United Kingdom, the Netherlands and South Africa (Dordrecht, Springer: 2010) at 7. 296 Paul Craig, ‘Political Constitutionalism and Judicial Review’ in Christopher Forsyth, Mark Elliot, Swati Jhaveri, Michael Ramsden, and Anne Scully-Hill (eds), Effective Judicial Review: A Cornerstone of Good Governance (New  York:  Oxford University Press, 2010) at 21; Gerhard van der Schuyff (2010) at 47. 297 Alec Stone Sweet (2000) at 58.

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5 The Relation between Human Rights and the Rule of Law The rule of law and human rights protection are difficult to separate. Both the rule of law and human rights aim to protect individuals against arbitrary governmental power.298 First, both the rule of law and human rights are based on a view of society and politics centred on the individual.299 In this view, the purpose of the state is to guarantee the rights and freedom of its citizens.300 Secondly, one of the most important aims of the rule of law is to protect the individual from the arbitrary use of governmental power. Human rights are an important means of protecting individuals from oppression.301 Further, legal practice demonstrates the close relation between human rights and the rule of law. In the different European legal systems described above, the protection of human rights is inextricably bound up with the rule of law concept.302 The strong link between the rule of law and human rights is evidenced by the text of the Universal Declaration and the European Convention. The Preamble to the Universal Declaration reads: ‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ The Preamble to the European Convention of Human Rights mentions the rule of law as part of the common heritage of European countries and one of the reasons why the signatory governments decided to ‘take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration’.303 Nonetheless, human rights are not unanimously understood as an element of the rule of law. Often, it is understood that including human rights in the rule of law would make the concept too broad, due to the contested nature of human rights.304 Also, human rights can be conceived not only as legal rights, but also as moral rights. However, at the least, certain human rights must be seen as a codification of central rule of law principles. 298 Asbjorn Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in Asbjorn Eide, Catarina Kraus, and Allan Rosas (eds), Economic, Social and Cultural Rights (Leiden:  Brill Academic Publishers, 2001) at 24. 299 Michael Freeman, ‘The Philosophical Foundations of Human Rights’ (1994) Human Rights Quarterly 16(3) at 513–14. According to Yasuaki, the focus of human rights theory on individuals is too simplistic for a universal application as it insufficiently takes into account the dependence of individuals on collectivities. In western states the relevant collectivity is the state, but individuals also function in the social setting of families and local communities (Onuma Yasuaki, ‘Towards an Intercivilizational Approach to Human Rights, for Universalization of Human Rights through Overcoming of a Westcentric Notion of Human Rights’ (1997) Asian Yearbook of International Law 7 at 57–60. 300 Jacques Chevallier (2003) at 54. 301 Morton Emmanuel Winston, ‘Indivisibility and Interdependence of Human Rights (Public Lecture)’ (1999) Lincoln, University of Nebraska at 12; Rolf Künnemann, ‘A Coherent Aproach to Human Rights’ (1995) Human Rights Quarterly 17(2) at 338. 302 ‘Dans tous les pays libéraux, le socle de l’État de droit est désormais constitué par un ensemble de droit fondamentaux, qui sont inscrit dans des textes de valeur juridique supérieure—textes constitutionnels et textes internationaux.’ (Jacques Chevallier (1998) at 6). 303 Golder v United Kingdom (Pl) App no 4451/70, Series A no 18, 21 February 1975 at 34. 304 Brian Z. Tamanaha (2004) at 112.

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5.1 Procedural human rights The inalienable character of human rights entails that human rights must be understood primarily as moral rights.305 The notion of human rights implicates that all humans are born free and equal. In this sense, human rights are universally valid and inalienable.306 Human beings are seen to have human rights by the mere fact of being born a human being and do not depend for their validity on nationality or jurisdiction. Based on human rights theory, individuals are seen as the natural holders of rights. This idea is reflected in the well-known sentence in the US Declaration of Independence which reads ‘we hold these truths to be self-evident, that all men are created equal’. The moral character of human rights is important, because a purely legal understanding of human rights could limit the understanding of the concept to what is and can be made the subject of coercive legal rules, while human rights are especially relevant where individuals are marginalized without legal protection of their rights.307 Even though human rights are primarily moral rights, human rights are most effectively guaranteed through law, provided adequate political and judicial institutions are present.308 This does not diminish the importance of human rights as moral rights as a form of critique of the existing positive human rights law.309 The effective protection of human rights requires a legal system that conforms to the rule of law standard.310 The effective protection of human rights depends on the status of rights within a legal system.311 Human rights require a functioning system of law and governmental authorities to implement those laws. When human rights are protected by the rule of law they are particularized and placed in the context of an existing legal system.312 As legal rights, human rights are effectuated through a legal system, legal institutions, and a political community that share the ideals and values of the rule of law. Thus human rights can only be fully protected when individuals are, as citizens, ‘members’ of a state.313 305 Amartya Sen, ‘Elements of a Theory of Human Rights’ (2004) Philosophy and Public Affairs 32(4) at 320; Ernst-Wolfgang Böckenförde, ‘Ist Demokratie eine Notwendige Forderung der Menschenrechte?’ in Stefan Gosepath and Georg Lohmann (eds), Philosophie der Menschenrechte (Frankfurt am Main: Suhrkamp, 1998) at 236; Carl Wellman, The Moral Dimensions of Human Rights (Oxford: Oxford University Press, 2011) at 3–7. 306 Edward L. Rubin, ‘Rethinking Human Rights’ (2003) International Legal Theory 9(1) at 69. 307 Amartya Sen (2004) at 327–8. 308 Onuma Yasuaki (1997) at 54–5; Ernst-Wolfgang Böckenförde (1998) at 242; Martin Kriele, ‘Menschenrechte und Gewaltenteilung’ in Ernst-Wolfgang Böckenförde and Robert Spaemann (eds), Menschenrechte und Menschenwürde: Historische Voraussetzungen, Säkulare Gestalt, Christliches Verständnis (Stuttgart: Klett-Cotta, 1987) at 245. 309 Georg Lohmann, ‘Menschenrechte Zwischen Moral and Recht’ in Georg Lohmann and Stefan Gosepath (eds), Philosophie der Menschenrechte (Frankfurt am Main: Suhrkamp, 1998) at 91. 310 Karel Vasak, ‘Human Rights:  As a Legal Reality’ in Karel Vasak and Philip Alston (eds), The International Dimensions of Human Rights (vol 1)  Paris:  Unesco, 1982) at 5; Nicoline Ambe, ‘A Legal Analysis of the Domestic Enforceability of International Human Rights Law: The Rule of Law Imperative’ (1998) University of New Brunswick Law Journal 47 at 109–32. 311 Robert Alexy, ‘Die Institutionalisierung der Menschenrechte im Demokratischen Verfassungsstaat’ in Stefan Gosepath and Georg Lohmann (eds), Philosophie der Menschenrechte (Frankfurt am Main: Suhrkamp, 1998) at 254–8. 312 Georg Lohmann (1998) at 91. 313 Onuma Yasuaki (1997) at 57–60; E.M.H. Hirsch Ballin (2)  ‘Burgerrechten’, University of Amsterdam, 9 September 2011 (available at: ) (last accessed 27 July 2013).

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It must be taken into account that although human rights are best protected through positive laws, positive laws will form the basis of limitations of human rights.314 Also, human rights are effectuated through the legal system of a state, while they are primarily aimed at shielding the individual from arbitrary power of the government of that same state.315 Adequate legal protection of human rights requires, therefore, not only codification of rights, but also an institutional design to protect the fundamental character of human rights in the legal order, such as the separation of powers and constitutional review. Human rights can be divided into procedural and material rights. Procedural rights are mainly focused on the organization of the legal system.316 Examples are the rule of habeas corpus, the right to a fair trial, and the prohibition of punishment without a previously enacted law. Material rights, on the other hand, concern the human condition as such. Examples are the right to life and the prohibition of torture. Certain procedural human rights articles should be seen as codifications of rule of law principles. They codify aspects of legality. An example is Article 7 of the Universal Declaration, which reads: ‘All are equal before the law and are entitled without any discrimination to equal protection of the law . . . ’ In this article, the generality of the law and equality before the law—central requirements of legality—are codified. With slight modifications, Article 26 of the International Convention on Civil and Political Rights317 reads much the same. Other examples are the criminal legality principle and the right not to be imprisoned without a prior conviction by a competent court: Articles 7 and 5(1) of the Convention, respectively. These articles could be seen as codifications of the requirement that government must abide by the law in the specific context of punishment and detention. Human rights are also concerned with judicial safeguards. The right to a fair trial, codified in Article 6 of the Convention, is generally understood as an element of the rule of law. Also, Article 5(3) and 5(4) of the Convention grant individuals a right to court when the right to liberty is concerned. These two articles thus grant the right to judicial review in the context of criminal cases. The idea that procedural human rights codify rule of law principles entails that the effective protection of human rights in a legal system depends on the rule of law. The right of access to court, the right to judicial review, and the right to an effective remedy are especially necessary to ensure the adequate protection of the material human rights provisions.318 Effective legal protection of the right to life, the right to privacy, and the right to family life all demand a well-functioning legal system, with adequate judicial safeguards. Thus, procedural human rights could be seen as codifications of rule of law principles. In this sense, procedural human rights are fundamental to the protection of other human rights.

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315 Hasso Hofmann (1996) at 21–3. Robert Alexy (1998) at 258. Jack Donnelly (1989) at 34. 317 International Convention on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force on 23 March 1976. 318 Klaus Stern (1992) at 82. 316

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Normally the fundamental nature of human rights is understood in a different sense. Human rights are understood as fundamental when they have jus cogens status or when no derogation is permitted from these rights (even in times of armed conflict).319 Rights can also be understood as basic, meaning that they aim to protect basic rights of security, subsistence, and liberty.320 This basic nature refers to the importance of specific human rights to uphold human dignity. Procedural human rights are not necessarily also basic human rights. They cannot be equated with basic rights of security, subsistence and liberty, although there is overlap. Likewise, procedural human rights are not necessarily fundamental in the sense mentioned above, because derogation is permitted from procedural rights such as the right to a fair trial. Neither are procedural rights generally understood to have jus cogens status. The fundamental nature of procedural human rights instead concerns the fact that these rights uphold the quality of the legal system.

5.2 Human rights and limited government The rule of law is aimed at the limitation of arbitrary governmental power, which is often understood as demanding limited government.321 Liberal political theory has significantly influenced the rule of law concept.322 All forms of liberalism emphasize the liberty of the individual.323 According to the liberal theory of Hayek, in particular, the rule of law would entail that the individual has a private sphere, which must be protected from government interference.324 This private sphere is then understood to be protected by an enumeration of rights.325 Also, human rights were initially understood mainly as freedom rights, which determined the free sphere of the individual within which the state may not interfere.326 However, freedom can be conceived both in a negative sense as the freedom from interference as well as in a positive sense as the capability to act.327 In liberal theory there are very diverse views on the concept of freedom, including positive conceptions of freedom.328 319 Teraya Koji, ‘Emerging Hierarchy in International Human Rights and Beyond:  From the Perspective of Non-Derogable Rights’ (2001) European Journal of International Law 12(5) at 921; Theo van Boven, ‘Distinguishing Criteria of Human Rights’ in Karel Vasak and Philip Alston (eds), The International Dimensions of Human Rights (Westport: Greenwood Press, 1982) at 43–6. 320 Henry Shue, Basic Rights, Subsistence, Affluence and U.S. Foreign Policy (Princeton, New Jersey: Princeton University Press, 1980) at 19–23. For a different viewpoint see Jack Donnelly (1989) at 40. 321 Jacques Chevallier (2003) at 60. 322 Brian Z. Tamanaha (2004) at 32; Eric Carpano, Thierry Debard, and Jacques Ziller, État de Droit et Droit Européens, L’evolution du Modèle de L’état de Droit dans le Cadre de L’européanisation des Système Juridiques (Paris: l’Harmattan, 2005) at 258. 323 Brian Z. Tamanaha (2004) at 32; Paul Cliteur and G.A. van der List, Filosofen van het Hedendaags Liberalisme (Kampen: Kok Agora, 1990) at 19–20. 324 325 F.A. Hayek (1976) at 207–8. F.A. Hayek (1976) at 216. 326 Theo van Boven (1982) at 49. 327 In addition, freedom can be conceived as freedom under the law, as described in sect 3.5 in the text around around n 243. For the distinction between positive and negative freedom, see Ian Carter (2007), ‘Positive and Negative Liberty’ in Edward N.  Zalta (ed), Stanford Encyclopedia of Philosophy (Winter edn, 2007)  (available at:  ) (last accessed 27 July 2013). 328 Jeremy Waldron, Liberal Rights, Collected Papers 1981–1991 (Cambridge: Cambridge University Press, 1993) at 40; Jack Donnelly (1989), Chap 5.

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The difficulty with the concept of freedom rights is that the boundaries of an individual private sphere are difficult to draw. Human rights are generally-worded norms. There is no common understanding of what human rights are. Most controversial political issues involve conflicting human rights claims.329 Interpretation is necessary to establish the precise scope of human rights and to determine what limitations are allowed to protect the public interest or conflicting human rights norms.330 Another problem with understanding human rights as a guarantee of individual liberty is the fact that all human rights contain positive obligations. Human rights used to be seen as divided into two groups of rights, requiring either abstention or action from government. Civil and political rights—for instance, the right to life, the right to liberty, and freedom of expression—are often understood as negative rights. Such rights can be seen to set boundaries to government interferences with individual freedom.331 Seemingly, such rights should be understood as part of the rule of law, as they protect a free sphere of individuals against government interference. Civil and political rights are often contrasted with economic and social rights, which include the right to social security, work, health care, and education.332 It would seem that economic, social, and cultural rights must be excluded from the rule of law because these rights would lead to greater government involvement.333 Also, a distinction between these rights is often made because the obligations of the state in the field of economic, social, and cultural rights are often seen as progressive obligations that are not easily judicially enforceable.334 Although traditionally, civil and political rights were seen to be mainly concerned with negative rights, and economic and social rights mainly with positive obligations, there have always been exceptions.335 The distinction between civil and political rights, on the one hand, and economic and social rights on the other is partly the consequence of the fact that these rights are codified in different treaties. Still, the Universal Declaration, which was the first international instrument that formed a comprehensive codification of human rights, does not differentiate between the different sets of rights. The differentiation of rights into different sets of rights, 329

Richard Ekins, ‘Judicial Supremacy and the Rule of Law’ (2003) Law Quarterly Review 119 at

140. 330

Jeremy Waldron (1993) at 401. Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher, and David W. Leebron, Human Rights (New York: Foundation Press, 1999) at 81. 332 Louis Henkin et al (1999). 333 Jacques Chevallier (2003) at 96; Georg Lohmann and Stefan Gosepath, ‘Einleitung’ in Georg Lohmann and Stefan Gosepath (eds), Philosophie der Menschenrechte (Frankfurt am Main: Suhrkamp, 1998) at 15. 334 Jochen A. Frowein, ‘The European Convention on Human Rights as the Public Order of Europe’ in Antonio Cassese and Joseph H.H. Weiler (eds), Collected Courses of the Academy of European Law: The Protection of Human Rights in Europe (Vol I, Book 2) Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1990) at 279. For a different view, see Amartya Sen (2004) at 346–7. 335 Christian Tomuschat, ‘Social Rights under the European Convention on Human Rights’ in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel, and Beatrice Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law, Liber Amoricum Luzius Wildhaber (Zurich, Dike, 2007) at 840; Angela Hegarty and Siobhan Leonard, Human Rights, an Agenda for the 21st Century (London: Cavendish Publishing Ltd, 1999) at 7–8. 331

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called first generation and second generation rights, cannot be sustained, mainly because human rights cannot be strictly divided into positive and negative rights.336 All human rights entail both positive and negative duties, and only the correlative duties can be divided into positive and negative obligations.337 Social positive obligations are an example of positive duties. Other types of positive duties derived from human rights provisions are horizontal positive obligations.338 Classic rights, which are often termed negative rights, also demand government to set up institutions, such as a police force and courts, to ensure that individuals are protected against the interferences with their rights by other individuals.339 All rights have three correlative duties that are both positive and negative: to avoid depriving, to protect from deprivation, and to aid the deprived.340 This three-fold duty, which was originally formulated by Shue, has since been reformulated and is now generally known as the duties to ‘respect, protect and fulfil’.341 The development of horizontal positive obligations has been necessary to protect individuals against the increasing danger of interferences by other individuals, private entities, or supra-national entities.342 Such positive obligations are called horizontal because they concern the relation between individuals, albeit in an indirect manner. These obligations thus demand active involvement on the side of the state. The development of social positive obligations is connected to the changing role of the state from one that only ensured the general safety of the people against criminality and foreign invasion into one concerned with the economic well-being, education, and health of the population: a welfare state.343 The welfare state can only be regulated by an active government on the basis of detailed rules that are formed at a lower level of administration. Such a state is necessarily very much involved with the private life of the citizens.344 Thus, these two main types of positive obligations demand active involvement of the state. All in all, while human rights used to be seen mainly as providing spheres free from governmental action, positive obligations require government to take up a more active role.345 Also, it is today generally recognized that human rights are indivisible.346 The idea of the indivisibility of human rights shows there is no sharp distinction 336

337 Asbjorn Eide (2001) at 22. Henry Shue (1980) at 53. Cordula Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin:  Springer, 2003) at 6. Lanotte and Haeck only differentiate between material and procedural positive obligations ( Johan van de Lanotte and Yves Haeck, Handboek EVRM, Dl 1, Algemene Beginselen (Antwerp/Oxford: Intersentia, 2005) at 101–5). 339 340 Henry Shue (1980) at 37–8. Henry Shue (1980) at 51–3. 341 Asbjorn Eide (2001) at 34–55; G.J.H. van Hoof, ‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views’ in Philip Alston and K. Tomasevski (eds), The Right to Food (The Hague: Martinus Nijhoff Publishers, 1984) at 106. 342 343 Cordula Dröge (2003) at 196–205. Patricia Popelier (1997) at 91–2. 344 Ringeisen v Austria (Pl) App no 2614/65, Series B no 11, 19 March 1970; Benthem v Netherlands (Pl) App no 8848/80, Series B no 80, 8 October 1983 at 54. 345 Albert Bleckmann, ‘Die Entwicklung Staatlicher Schutzpflichten aus den Freiheiten der Europäischen Menschenrechtskonvention’ in Ulrich Beyerlin and Rudolf Bernhardt (eds), Recht Zwischen Umbruch und Bewahrung:  Völkerrecht, Europarecht, Staatsrecht:  Festschrift Für Rudolf Bernhardt (Berlin: Springer, 1995) at 309–10. 346 On 25 June 1993, representatives of 171 states adopted by consensus the Vienna Declaration and Programme of Action of the World Conference on Human Rights, whereby they determined 338

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between civil and political rights on the one hand and social and economic rights on the other.347 Indivisibility presupposes that human rights form a single package and that one right cannot rank above the other on a hierarchical scale.348 Indivisibility is based upon the idea that the different basic needs of humans cannot be prioritized.349 The indivisibility of human rights is thus derived from the unity of the human being and the impossibility of distinguishing between different types of basic needs.350 Basic needs of individuals include both needs that are protected by social and economic rights and needs that are protected by civil and political rights. In situations where humans are faced with starvation and civil strife, they equally need food and security.351 Consequently, human dignity can only be protected when all human rights are at least upheld to a minimum level.352 Thus the indivisibility of human rights norms entails how government must ensure at least the adequate protection of a basic living standard and security. To conclude, civil and political rights cannot merely be understood as determining a free sphere in which government may not interfere. On the basis of horizontal positive obligations, civil and political rights demand government to protect individuals against interferences by other individuals. Also, civil and political rights require government to set up institutions to effectuate rights. Lastly, at least minimum protection of social and economic rights must be ensured as these are required for the enjoyment of civil and political rights. Consequently, civil and political rights cannot be understood as freedom rights and means to ensure limited government. In relation to the present conception of human rights, which requires both abstention and active involvement from government, freedom must instead be understood in a positive sense.353 Freedom can only be useful for individuals if they are able to make use of it, in other words if they are autonomous human beings.354 Positive freedom demands government to respect, protect, and fulfil at least basic human rights.

5.3 Human rights and the substantive contents of law As we have seen, legality as the demand for general, stable, and prospective law is a prerequisite for just law, but it cannot ensure just law.355 To ensure just laws, that ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’. UN General Assembly, ‘Vienna Declaration and Programme of Action’ (1993) A/CONF.157/23. See also Jack Donnelly (1989) at 28–34; Rolf Künnemann (1995) at 323; Morton Emmanuel Winston (1999) at 3. 347 Teraya Koji (2001) at 925. 348 Theo van Boven (1982) at 43; UN General Assembly, ‘Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms’ (1997) A/RES/32/130. 349 Indivisibility is also sometimes understood to mean that the fulfillment of basic social and economic rights is a necessary prerequisite for the fulfillment of civil and political rights (Jeremy Waldron (1993) at 10). 350 351 Theo van Boven (1982) at 49. Henry Shue (1980) at 53. 352 353 Jack Donnelly (1989) at 41. Amartya Sen (2004) at 334; Jack Donnelly (1989), Chap 5. 354 Waldron uses the term human agency, which he understands as the untrammeled powers of individual deliberation, choice, and the intentional initiation of action (Jeremy Waldron (1993) at 39). 355 As explained in sect 3.5, in the text around n 232.

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substantive elements such as human rights, which constrain the substantive content of the law, must be added to the rule of law. When human rights set limits to the substantive contents of law, human rights can ensure that law is just.356 The protection of human rights could thus be seen as a substantive element of the rule of law.357 The precise scope of human rights obligations is contested. Especially hard to delimit is the extent of the positive obligations of the state to protect human rights.358 The precise scope of human rights in a specific context is also disputed, as well as the manner in which conflicting human rights claims must be resolved. The scope of human rights depends upon local circumstances and is therefore best determined within the context of a specific legal system. Within a specific society—especially when common legal values are present—it is more likely that consensus can be reached regarding the precise scope of human rights. In the absence of consensus, democratic deliberation or constitutional adjudication are methods for resolving disagreements concerning the scope of human rights obligations in a specific society. Therefore, human rights can set boundaries to the substantive content of law, as long as institutions are set up to determine the scope of human rights obligations. When human rights are seen to form part of the rule of law as a limitation of the substantive content of law, legal institutions must be set up to ensure effective legal protection of human rights. The rule of law is then understood to include constitutionalism and the protection of human rights through judicial review of legislation.359 Constitutionalism here denotes the restriction of the majority in democratic decision-making processes, with the aim to protect human rights.360 The judicial review of legislation can be described as constitutional review. Thus, the rule of law is seen to include a constitution, codifying basic human rights that are placed in the highest position in a hierarchy of legal norms.361 Constitutional review can either be abstract and undertaken prior to laws being adopted, like in France, or with respect to specific cases, like in Germany. Another possibility is a system whereby the parliament itself must ensure that laws remain within the limits set by the constitution.362 In the absence of institutions to resolve conflict regarding the precise scope of human rights, certain human rights should still be understood to form part of the rule of law. The precise scope of human rights is contested, but agreement is possible regarding the core contents of the most basic human rights. The core contents of most basic human rights can be seen as universally valid.363 Certain human rights must be understood as basic, because they are necessary for the enjoyment of all other rights and set a certain minimum standard, below which no one should have

356

357 Jacques Chevallier (2003) at 104. Brian Z. Tamanaha (2004) at 91. Jeremy Waldron (1993) at 217. 359 Klaus Stern (1992) at 88; Nicoline Ambe (1998) at 117–18. 360 Ronald Dworkin, Taking Rights Seriously (new impression with a reply to critics), (London: Duckworth, 1978) at 142. 361 Andre-Jean Arnaud (1993) at 240; Jacques Chevallier (2003) at 100. 362 Carl Wellman, The Moral Dimensions of Human Rights (Oxford: Oxford University Press, 2011) at 135; Robert Alexy (1998) at 260–1. 363 Amartya Sen (2004) at 350–1. 358

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to fall.364 This minimum standard arguably includes subsistence, security, and liberty rights, and thus includes rights which are of the classic type and demand that individuals are free from physical assault, as well as economic rights.365 As noted above, the rule of law requires the existence of some form of social order and a certain acceptance of the legal system by society.366 This can only be achieved if the basic human rights of subsistence, security, and liberty are protected.367 To conclude, at a minimum, the rule of law must be understood to require a minimum degree of protection of the most basic human rights. The inclusion of such rights ensures that law conforms to a minimum standard of justice.

6 The Relation between Democracy and the Rule of Law 6.1 Democracy defined as majority rule Democracy and the rule of law are part of the same, western, political philosophy in which freedom and equality have a primary position.368 Most European states can be described as democratic states governed by the rule of law, which shows the close link between both concepts in European countries.369 Democracy is sometimes understood as part of the rule of law, and the rule of law is also sometimes understood as part of democracy. Whether democracy and the rule of law can be distinguished depends upon one’s conception of democracy. Democracy can de defined both in a formal and in a substantive manner. A formal conception of democracy would restrict this notion to majority rule as the process through which all public decision-making should take place.370 Majority 364 ‘Basic rights, then, are everyone’s minimum reasonable demands upon the rest of humanity. They are the rational basis for justified demands the denial of which no self respecting person can reasonably be expected to accept . . . the enjoyment of them is essential to the enjoyment of all other rights.’ (Henry Shue (1980) at 19). 365 Shue defines security rights as ‘not to be subjected to murder, torture, mayhem, rape or assault’ and subsistence rights are rights to ‘unpolluted air, unpolluted water, adequate food, adequate clothing, adequate shelter, and minimal preventive health care.’ Furthermore, the right to free physical movement and the right to political participation are seen by Shue to be the two aspects of liberty needed for the fulfillment of any other right. He does not claim to have given an exhaustive list of basic rights, but merely that the lack of the three basic rights of subsistence, security, and liberty are detrimental to the effective enjoyment of all other rights (Henry Shue (1980) at 20, 23, 86). 366 367 See sect 2.1, in the text around n 8. Ronald Dworkin (1978) at 205. 368 Marc F. Plattner, ‘From Liberalism to Liberal Democracy’ in Larry Diamond and Marc F. Plattner (eds), The Global Divergence of Democracies (Baltimore/London: John Hopkins University Press, 2001) at 78–80; Thomas Carothers, ‘The Rule of Law Revival’ (1998) Foreign Affairs 77(2) at 97. 369 German Basic Law, arts 20 and 28 clarify that Germany is a ‘demokratischer Rechtsstaat’. This phrase is also used to describe the constitutional system of other European states, such as the Netherlands, Hungary, and Poland. The Hungarian Constitution, 20 August 1949, art 2 determines that Hungary is a ‘democratic State under the rule of law’. The Constitution of the Republic of Poland, 2 April 1997, art 2 determines that Poland shall be a ‘democratic state ruled by law’. The Polish Constitutional Court, in a judgment of 19 December 2002, has interpreted this provision to mean that Poland is a democratic state governed by the rule of law. This is explained in Broniowski v Poland (GC) App no 31443/96, ECHR 2004-V, 22 June 2004, at 79–86. For the Netherlands see M.C. Burkens et al (1997). 370 Ronald Dworkin, ‘Freiheit, Selbstregierung und Wille des Volkes, ist Demokratie heute noch Möglich?’ in Stefan Gosepath and Georg Lohmann (eds), Philosophie der Menschenrechte (Frankfurt am Main: Suhrkamp, 1998) at 295.

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rule simply entails that decisions are made when half of the voters plus one vote in favour of a certain decision. People are supposed to accept democratically made decisions, even if they have voted against a certain decision, because the minority of today can always become the majority of tomorrow.371 Defined as such, democracy, as well as the legality principle, is a formal manner in which the power of government is restrained.372 Democracy sets requirements for the formal method by which laws are made, whereas the rule of law sets a quality standard for law itself. This formal concept of democracy is concerned with the manner of determining what the law will be, and it is a means rather than an end.373 Conceptually, the rule of law can be distinguished from democracy, at least when this latter concept is understood in a formal sense. One is concerned with the majority rule as a form of decision-making, the other with the form that law can take and with legal procedures and institutions. Whether, in practice, the rule of law and democracy can exist separately is a different question.374 In the three national legal systems described above, legality does not merely demand laws conform to certain quality requirements, but also that they are of democratic origin. In the United Kingdom, this requirement is the corrolary of the sovereignty of parliament. In Germany, Article 80 of the Basic Law sets limits on the delegation of law-making power to the executive. In France, although parliament may not issue laws in areas where government has exclusive competence to issue regulations, regulations are still of a lower order than laws.375 Defined in this manner, legality requires citizen involvement in the law-making process.376 Also the limitations set by legality on the delegation of law-making power to the executive demonstrate the primary position of parliamentary laws in the legal system. In this manner, democracy is turned into one of the requirements of legality and, as such, provides an extra guarantee against abuse of power. Democracy as a requirement of legality does not place restrictions on the content of the law or the form that law must have, but sets limits on the process through which laws are framed, requiring democratic acceptance and debate. Thus in these legal systems, the rule of law and democracy can conceptually be separated. It has been argued that the rule of law is not necessarily dependent on democracy and can exist separately.377 Singapore is said to be an example of a state that has as a well-developed legal system which conforms to the rule of law but does not have real, free democratic elections.378 Still, it appears unlikely that the rule of law can thrive without democracy.379 The rule of law requires a certain amount of reciprocity between the rulers and those who are ruled, and a reasonable amount

371 Patricia Popelier, Democratisch Regelgeven (Antwerp/Groningen: Intersentia Rechtswetenschappen, 2001) at 54–60. 372 373 Brian Z. Tamanaha (2004) at 99. F.A. Hayek (1976) at 103 and 107. 374 Ernst-Wolfgang Böckenförde (1987) at 942. 375 See also text at sects. 2.3.1, 2.3.2, and 2.3.3 respectively. 376 377 Patricia Popelier (2001) at 105–9. Randall Peerenboom (2005) at 59–66. 378 Randall Peerenboom (2005) at 63. 379 Ernst Hirsch Ballin, ‘De Rechtsstaat: Wachten op een Nieuwe Dageraad?’ (2011) Nederlands Juristenblad 2, 71–3.

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of ownership over the norms of the legal system.380 Some form of acceptance of the law and ownership of the law generally follows from democratic procedures. Also, the requirements of legality are most likely to be adhered to in a democratic system, compared to other forms of government. The form and quality of the law depend to a large extent on the form of government. In a democracy, the quality of the law must be higher than the quality of the law in a monarchy or an aristocracy, because the law in the former depends upon the extent to which it enjoys general acceptance, whereas in a monarchy, the law’s authority is backed by the power of the monarch. Montesquieu writes in his book ‘The Spirit of the Law’ about the three prevailing forms of government in states.381 Aristotle had already written about the three forms of states—where one, a few, or many ruled—and how each of these forms has a natural tendency to corruption.382 Monarchy, aristocracy, and democracy have a natural tendency, respectively, to despotism, oligarchy, and anarchy. Montesquieu also explains how the law in each of these three different forms of government has a different form. In a democracy, the law must be general and apply equally to all, and must be acceptable to all in order to be persuasive. In a monarchy and an aristocracy, the rulers have more means of ensuring the acceptance of their rule and thus less need to ensure that law keeps to the same standards.383 Thus, only where law is general, prospective, and clear can it be generally accepted and followed without central enforcement by an authoritative government. It is doubtful whether democracy is possible without the basic rule of law requirements of legality and the functional separation of powers, especially in complex societies. In a democracy, power is dispersed among many individuals. The people that participate in framing the law cannot be the same as the people applying the law. As a consequence, some form of institutionalization of the manner in which law is made and applied is required. As was noted under section 4.1, when the different tasks of law-making, adjudication, and application of law are divided over different organs of government, law must conform to a minimum standard of legality. Only when law respects the requirements of legality can it be expected to be applied by the other powers of government.384

6.2 Democracy defined as the self-rule of the people Democracy can also be conceptualized as participatory democracy, or as a system of government that protects the equality of individuals and their right to participate 380 Thomas Carothers, ‘Promoting the Rule of Law Abroad, the Problem of Knowledge—Working Paper’ Carnegie Endowment of International Peace—Rule of Law Series (2003) at 8–9. 381 Charles de Secondat Montesquieu, Baron de (1989) Part 1, Book 3, Chap 3, p 10. 382 Aristotle, The Politics (350 BC) Book III, nr 7. 383 ‘There need not be much integrity for a monarchical or despotic government to maintain or sustain itself. The force of laws in the one and the prince’s ever raised arm in the other can rule or contain the whole. But in a popular state there must be an additional spring, which is VIRTUE. . . . For it is clear that less virtue is needed in a monarchy, where the one who sees to the execution of the laws judges himself above the laws, than in a popular government, where the one who sees to the execution of the laws feels that he is subject to them himself and that he will bear their weight.’ (Charles de Secondat Montesquieu, Baron de (1989) Part 1, Book 3, Chap 3, p 22). 384 Jacques Chevallier (2003) at 132–3.

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in the decision-making process.385 As such, democracy is more inclusive of substantive values. Democracy is, in a broader sense, understood as self-rule of the people. The exercise of governmental authority is legitimized by the participation and control of the people.386 Thus, participatory democracy is not purely formal, because it is based on the recognition of the equal worth of individuals. Participatory government includes the formal conception of majority rule which concerns the method of decision-making and, over and above this requirement, also demands that the majority respects the equal worth of all citizens. As democracy is based on the equal worth of individuals, at least certain human rights must be protected in a democracy. In particular, political rights—such as the right to vote, freedom of expression, and the freedom of assembly—are generally understood as necessary for a functioning democracy.387 These human rights articles are codifications of democratic values.388 Democracy could therefore be understood to require at least the protection of human rights such as the freedom of speech, as these rights favour public debate.389 Democracy must also be understood to require the protection of other human rights. At least, the protection of basic human rights is necessary to ensure that individuals can participate autonomously in the democratic process.390 Democracy demands individual autonomy in the private and in the public realm. Not only are political rights necessary to democracy, but so are civil, economic, and social rights. Political rights are necessary to public autonomy because they ensure that individuals can participate in the democratic decision-making process. Civil, economic, and social rights are required to uphold private autonomy. Public and private autonomy presuppose each other. Public autonomy is aimed at involving individuals in the decision-making process concerning rights and freedom in the private sphere. Individuals can only make use of their public autonomy and participate effectively in the decision-making process when they are also able to make use of their rights and liberties within the sphere of their private autonomy. They must have some knowledge about how they want to use their rights and liberties in order to form an opinion on how individuals should behave within the private sphere.391 Democracy thus presupposes the participation of citizens in society and in the decision-making process and, consequently, the guarantee of rights and liberties.392 In addition, democracy requires the protection of human rights to ensure that today’s majority does not create laws which deprive the minority of their rights and, thus, of their ability to participate in the democratic process. As Dworkin has pointed out, democracy should entail that all citizens are treated with the same

385

Ronald Dworkin (1998) at 305. 387 Ernst-Wolfgang Böckenförde (1998) at 236. Robert Alexy (1968) at 261–2. 388 Tony Prosser, ‘Understanding the British Constitution’ (1996) Political Studies XLIV at 482. 389 Ernst-Wolfgang Böckenförde (1998) at 241. 390 Ronald Dworkin (1998) at 305–6; Ronald Dworkin, ‘Constitutionalism and Democracy’ (1995) European Journal of Philosophy 3(1) at 5. 391 Jürgen Habermas, ‘On the Internal Relation between the Rule of Law and Democracy’ (1995) European Journal of Philosophy 3(1) at 17. 392 Jacques Chevallier (1998) at 8. 386

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respect and that the human rights of all citizens are protected. No majority should be able to undermine the protection of the human rights of individuals.393 Those human rights which are necessary to protect individual dignity and equality must be protected in a democracy.394 The power of democratic government over the governed is thus only acceptable when government protects the rights of the citizens.395 Consequently, both the rule of law and democracy require that at least basic human rights are respected. In that sense, there is also a close relation between both concepts. They are both aimed at upholding the equality and autonomy of individuals in society. As we have seen, the rule of law is often also understood to require not only the protection of the most basic human rights, but also a constitution with a more comprehensive enumeration of human rights and protection of these rights through judicial review. Especially to the extent that the rule of law includes a hierarchy of legal norms where human rights are placed in the highest position, democracy and the rule of law are difficult to separate. Political human rights protect basic values of democracy, such as the freedom of speech and assembly.396 At the same time, where democracy is understood to include the protection of human rights, the rule of law is necessarily a part of democracy, to ensure the effective legal protection of those rights. Especially when human rights protection through judicial review is understood as part of the rule of law, there is a tension between the rule of law and democracy.397 The description of the three different European legal systems has also shown that the balance between human rights protection and democracy remains a prevalent concern. A rule of law concept which includes human rights protection places restrictions on the ability of the democratic majority to change the law.398 The idea that certain legal values are fixed stands in contrast to the idea that a democratic majority can decide freely on the contents of the law.399 Tension especially exists between democracy and the protection of human rights through a judicial review of laws emanating from the legislature. Judicial human rights review of legislation limits the ability of the majority to determine the content of the law. For this reason it is sometimes argued that, in light of the existence of moral disagreement over human rights issues, the final decision-making power should not be left in the hands of the judiciary, but must be placed in the hands of parliament.400 393 Ronald Dworkin, A Bill of Rights for Britain, Why British Liberty Needs Protecting (London: Chatto & Windus, 1990) at 35–6. 394 Ronald Dworkin (1978) at 199. 395 ‘Democracy is based upon the principle that governments are instituted to secure the rights for their citizens and that they derive their powers from the consent of the governed. This concept has found renewed emphasis in international law, where it is fundamentally linked to human rights.’ Dinah Shelton, ‘Subsidiarity and Human Rights Law’ (2006) Human Rights Law Journal 27(1–4) at 6. 396 Ernst-Wolfgang Böckenförde (1987) at 942–3. 397 Jacques Chevallier (2003) at 56; M.C. Burkens et al (1997) at 26; Brian Z. Tamanaha (2004) at 104. 398 399 Robert Alexy (1998) at 263. Hasso Hofmann (1996) at 10. 400 Richard Ekins, ‘Judicial Supremacy and the Rule of Law’ (2003) Law Quarterly Review 119 at 144.

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Still, the legislation cannot always be trusted to uphold human rights. Democracy may pose a threat to the protection of human rights.401 Unlimited democracy even poses a threat to democracy itself. Tyrannical leaders can acquire power through democratic methods. Historical examples are the Jacobin terror of Robespierre after the French Revolution and the Nazi regime in Germany.402 The protection of human rights through constitutional review functions as a necessary check on the possible abuse of democratic power.403 To conclude, democracy and the rule of law can be separated conceptually. But it is unlikely for democracy and the rule of law to exist separately. Human rights protection in particular forms a strong connection between the rule of law and democracy. At the same time, when human rights protection is understood as an aspect of the rule of law, there is tension between both concepts.

7 Conclusion In summary, the rule of law is aimed at the protection of the individual from arbitrary governmental power. The rule of law is thus based on a view of society centred on the individual. The rule of law also aims to control power through law. Legality lies at the heart of the rule of law concept. Legality sets a number of quality requirements to which law must adhere. Laws must be general, promulgated, non-retroactive, clear, and stable. These requirements are primarily requirements the legislature must uphold. Furthermore, there must be congruence between official acts and declared rules. In other words, government must act on the basis of law. Also, the judiciary must review the legality of governmental acts to ensure this congruence. Lastly, the judiciary must provide individuals with access to a fair hearing to uphold the equality before the law. A functional separation of the three powers of government is an inherent element of the rule of law. The functional separation of powers ensures that no one will be a judge in his own cause and that laws are not made with particular cases in mind. This separation is thus a prerequisite for upholding the generality of the law and equality before the law. In addition, the independence of the judiciary is particularly indispensable to the rule of law. The judiciary is especially qualified to uphold respect for the law. These are all formal elements of the rule of law. They are concerned with the form that law can take and with the institutions that must be set up to ensure that law is not abused for private purposes. These formal elements of the rule of law protect individuals to a certain extent against arbitrary exercise of governmental power. Also, the requirements of legality promote individual autonomy because they allow people to plan their lives. However, these formal elements of the rule of law are necessary, but not sufficient, to ensure that law also has a just content.

401 403

Marc F. Plattner (2001) at 79. Andre-Jean Arnaud (1993).

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402

M.C. Burkens et al (1997) at 26.

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The rule of law is often defined in a more inclusive manner to include democracy and human rights protection. Conceptually, the rule of law and democracy can be distinguished. In practice, both concepts are inseparable because they are both aimed at protecting the equality and autonomy of individuals. In consequence, the rule of law is often understood in a comprehensive sense to include not only the requirements of legality and the functional separation of powers, but also democracy. Legality is then understood as the demand for democratic law. Human rights are inextricably bound up with the rule of law concept because both are aimed at protecting the individual from arbitrary power. Also, procedural rights codify rule of law principles and, as such, are part of the rule of law. Furthermore, basic human rights must be upheld by the rule of law, because the rule of law requires acceptance by the people of the law which cannot be achieved when a minimum standard of security, freedom, and subsistence is not upheld. When human rights are included as an element of the rule of law, institutions must be set up to ensure the protection of human rights. Legality is one means by which human rights can be protected, and judicial review is another. Legality can be understood as the demand that all laws conform to a constitution that codifies human rights. Also, judicial review—in a decentralized or constitutional form— can be instituted to uphold the supremacy of human rights over other laws and regulations. The precise scope of the different human rights obligations is disputed; so, too, is how conflicts between different human rights obligations must be resolved. Democratic deliberation and constitutional review procedures are methods for the resolution of disagreement regarding the scope of human rights. Different forms of how human rights protection is institutionalized are compatible with the rule of law. Within European states, it makes sense to see the rule of law in connection with democracy and human rights, as all three concepts are part of the same political tradition of the different European states. The German Rechtsstaat, the French État de droit, and the UK rule of law concepts must be understood in a comprehensive sense to include the demand that laws are democratically framed and remain within the limits of the constitution. At the same time, the balance that is achieved between democracy and the protection of fundamental rights is very different in these states, and this is partly the result of an established legal tradition.404 In the United Kingdom, the doctrine of the sovereignty of parliament places most emphasis on the ability of the democratic majority to change the law. In Germany, on the other hand, the ability of a democratic majority to change the law is curtailed by the constitution and the constitutional review procedure. There is no formula to achieve a workable balance between human rights protection, formal legality, and democracy. Under the influence of the ECtHR the balance has shifted in favour of the judicial protection of human rights.

404

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Brian Z. Tamanaha (2004) at 112.

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Chapters 3 to 7 will show how the case law of the ECtHR reflects the intricate nature of the rule of law concept. On the one hand, a formal core concept of the rule of law, centred on legality and judicial safeguards, can be derived from the case law. On the other hand, the rule of law features in the case law as a broader concept with substantive connotations.

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3 The Legality Concept in the Case Law 1 Introduction In theoretical accounts of the rule of law, legality is described as its central element, as was seen in Chapter 2.1 The European Court of Human Rights (‘ECtHR’, ‘the Strasbourg Court’, or simply ‘the Court’) refers to the rule of law in its case law mainly in relation to legality; the meaning of the rule of law in relation to legality is part of the established case law of the Court. Consequently, also in the context of the European Convention on Human Rights (‘the Convention’)2, legality is the central element of the rule of law, and understanding the meaning, scope, and function of legality is essential for an understanding of the rule of law concept in that context. For this reason, the analysis of the rule of law in the context of the case law of the ECtHR will start with an analysis of legality as a concept of the Convention. Accordingly, this chapter analyses the Court’s case law on legality with the aim of deriving from that case law a coherent view on legality and, also, the relation between legality and the rule of law. Legality will, in the main, be described in reference to the case law that concerns the limitation clauses and Articles 5 and 7 of the Convention, because legality is most often touched upon in cases that concern these provisions. Legality will be discussed mainly as a unitary concept because, on the whole, it applies in a similar way to all the articles of the Convention. However, where the specific articles of the Convention set different requirements of legality, these differences will be addressed. Put concisely, legality in the case law of the ECtHR demands, first, the existence of a law in the national legal order and, secondly, that that law conforms to certain quality requirements. In section 2.1 these two aspects of legality will be further explained. The term legality is briefly addressed in section 2.2. Section 2.3 will argue that legality is of central importance in relation to all Convention articles, and section 2.4 explains how the ECtHR has developed its standard of legality based on the rule of law. Next, the first element of legality—the demand that a national law exists on which an interference with a Convention right is based— will be described in section 3. The quality requirements of legality will then be 1

See Chap 2, sect 2.1, text at n 11. Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953. 2

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described and analysed in more depth in section 4. Lastly, the relation between legality and proportionality will be analysed in section 5.

2 The Role and Function of Legality in the Case Law 2.1 The Convention articles referring to legality The most common context of the review of legality by the ECtHR in the case law is in those cases where the Court is concerned with interferences with specific Convention rights. These rights are those protected by Articles 5 and 7 of the Convention, and also by the articles that contain limitation clauses. Almost all of these provisions contain an explicit reference to legality. In cases that concern an interference with the rights codified in these articles, the ECtHR explicitly reviews the legality of such interference. In the context of such cases, the review of legality is part of the established case law of the Court. The limitation clauses demand, first, that an interference with a Convention right is lawful. In relation to Articles 5 and 7 of the Convention, legality primarily requires the existence of a national law on which a deprivation of liberty or a punishment is based. Over and above this requirement, legality sets quality requirements to a law on which an interference with a Convention right is based.3 Consequently, the Court first establishes whether a national law exists, and then reviews the quality of the law.4 In other words, when reviewing the legality of interferences with Convention rights, the ECtHR must first assess compliance with national laws and procedures. Then it reviews whether domestic law conforms to the Convention standard of quality. Legality is one of the three main concerns in the case law on Article 5.5 It is especially relevant for sub-paragraphs 1, 3, and 4 of Article 5.6 Article 5(1) of the Convention provides that any deprivation of liberty must be based on one of the grounds mentioned in the Article and must be in accordance with legality. Legality in relation to Article 5(1) also entails that the law must have sufficient quality. The quality of the law is dependent upon its accessibility and foreseeability.7 Legality in the context of Article 5(1) is aimed at preventing arbitrariness, as well as ensuring legal certainty.8 The ECtHR has noted that ‘any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness’.9 Furthermore, a national law which authorizes a deprivation of liberty 3 Stafford v United Kingdom (GC), App no 46295/99, ECHR 2002-IV, 28 May 2002 at 63; Malone v United Kingdom (Pl), App no 8691/79, Series A no 82, 2 August 1984, at 66. 4 Malone v United Kingdom (Pl), 2 August 1984, at 66. 5 McKay v United Kingdom (GC), App no 543/03, ECHR 2006-X, 3 October 2006, at 30. 6 Mark W. Janis, Richard S. Kay, and Anthony W. Bradley, European Human Rights Law: Text and Materials, 3rd edn (New York: Oxford University Press, 2008) at 690. 7 Khudoyorov v Russia, App no 6847/02, ECHR 2005-X, 8 November 2005, at 125; Baranowski v Poland, App no 28358/95, ECHR 2000-III, 28 March 2000, at 50–2. 8 Assanidze v Georgia (GC), App no 71503/01, ECHR 2004-II, 8 April 2004, at 175. 9 Stafford v United Kingdom (GC), 28 May 2002, at 63; Nakhmanovich v Russia, App no 55669/00, 2 March 2006, unreported.

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must be ‘sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness’.10 Also, legality in relation to Article 5(1) includes additional requirements that are related to the right to liberty itself. Legality thus additionally demands that a detention falls within one of the categories listed in the Article itself.11 Article 5(3) requires that an arrested individual be brought promptly before a judge or judicial officer authorized by law. Article 5(4) entitles an arrested or detained person to challenge the lawfulness of his or her deprivation of liberty in a court. The notion of ‘lawfulness’ under paragraph 4 of Article 5 has the same meaning as in paragraph 1.12 Article 7 of the Convention prohibits the retrospective application of criminal law to an accused’s disadvantage. It also embodies the more general principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege).13 Article 7 also demands that criminal law must not be extensively construed to the detriment of an accused, for example by analogy.14 The principle of legality as it applies in criminal law is an essential element of the Convention rule of law concept.15 Non-retroactivity and the more general principle of nulla poena sine lege are interpreted by the ECtHR to mean, first and foremost, that an offence must be clearly defined in the law and that law, whether written or unwritten, must be sufficiently accessible and foreseeable.16 Article 7 allows punishment on the basis of international criminal law and thus, in the context of this provision, legality refers to national law as well as international criminal law. The limitation clauses determine when interferences with certain human rights that contain these clauses are allowed, and thus set the boundaries of the Convention rights.17 Several of the Convention’s articles—including Articles 8, 9, 10, and 11 and Article 2 of Protocol 4—include a limitation clause. Others, such as Article 3 of Protocol 1, from which derogation is permitted, are important as well. Further, Article 1 of Protocol 1 includes a limitation clause that is worded differently from those contained in Articles 8, 9, 10, and 11, but the Court uses the same criteria with respect to this provision.18 Interferences with Convention rights that include a limitation clause are only allowed if they are lawful, have a ‘legitimate aim’, and are ‘necessary in a democratic

10

Ismoilov and ors v Russia, App no 2947/06, 24 April 2008, at 137 (not yet reported). Clare Ovey and Robin C.A. White, The European Convention on Human Rights, 5th edn (Oxford: Oxford University Press, 2010) at 215–17; Engel and ors v Netherlands (Pl) App no 5100/71, Series A no 22, 8 June 1976, at 69. 12 A and ors v United Kingdom (GC), App no 3455/05, ECHR 2009, 19 February 2009, at 202. 13 CR v United Kingdom, App no 20190/92, Series A no 335-C, 22 November 1995, at 33. 14 Kononov v Latvia, App no 36376/04, 24 July 2008, at 114 (unreported); Jorgic v Germany, App no 74613/01, 12 July 2007 at 100 (not yet reported). 15 CR v United Kingdom, 22 November 1995, at 32; Moiseyev v Russia, App no 62936/00, 9 October 2008 at 233 (unreported). 16 CR v United Kingdom, 22 November 1995, at 33. 17 Claudia Johanna Staal, De Vaststelling van de Reikwijdte van de Rechten van de Mens (Proefschrift) (Nijmegen: Ars Aequi Libri, 1995) at 615–27. 18 P. van Dijk, Fried van Hoof, Arjen van Rijn, and Leo Zwaak, Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp: Intersentia, 2006) at 335–6. 11

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society’.19 Legality, the existence of a legitimate aim, and proportionality are three separate requirements for a legitimate interference with a Convention right. Lawfulness requires the existence of a domestic law that is accessible and foreseeable. The aim of an interference is generally judged to be legitimate. The Court is careful not to challenge the aims pursued by governments,20 although there are exceptions.21 Where the text of a Convention article does not determine which aims are allowed, as is the case with Article 3 of Protocol 1, the ECtHR will review whether the aim the state relies on is compatible with the rule of law.22 The requirement of necessity implies that the interference corresponds to a ‘pressing social need’ and that it is ‘proportionate to the legitimate aim’ that is pursued.23 The ECtHR assesses national law under the heading of legality—the quality of the law—and also under the heading of proportionality—whether laws result in an interference with the right of an individual that is proportionate.

2.2 The term legality The Convention articles do not refer to the term legality, and nor does the ECtHR in its rulings. Both refer to different variants of the term lawfulness that are mentioned in the Convention’s articles. In this text, the term legality will be used instead of lawfulness. The term legality is preferred because it has a broader connotation than lawfulness. In theory on the rule of law, lawfulness predominantly denotes a formal requirement of strict compliance with laws and procedures, whereas legality is understood to encompass more than strict compliance with laws and procedures, and also demands that laws conform to external requirements, such as the generality and certainty of the law.24 The term legality thus fits the manner in which the ECtHR reviews, first, compliance with national laws and procedures and, secondly, the quality of that law. Legality will be analysed as a unitary concept which, overall, sets a similar standard in relation to the various articles of the Convention. The ECtHR has also frequently noted that it applies the same standard as much as possible, even though the articles refer to legality by different wording. In contrast to the French version 19 In the case of Article 1 of Protocol 1, ‘necessary in a democratic society’ is not one of the requirements. Instead, the ECtHR looks at whether the interference has a legitimate aim in the public interest. See for instance Broniowski v Poland (GC), App no 31443/96, ECHR 2004-V, 22 June 2004, at 147–50. 20 Joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler, and Jebens in Hirst v United Kingdom (GC), App no 74025/01, ECHR 2005-IX, 6 October 2005; Clare Ovey and Robin C.A. White (2010) at 316–17; J.G.C. Schokkenbroek, Toetsing aan de Vrijheidsrechten van het Europees Verdrag tot Bescherming van de Rechten van de Mens (Zwolle: W.E.J. Tjeenk Willink, 1996) at 184. 21 Campagnano v Italy, App no 77955/01, 23 March 2006, at 49 (unreported). Another exception could be the Hirst case, where the Chamber expressed reservations about the legitimacy of the aim. However, the Grand Chamber was of the opinion that the aim of government was compatible with Article 3 of Protocol 1 (Hirst v United Kingdom, App no 74025/01, 30 March 2004 at 46 (unreported); Hirst v United Kingdom (GC), 6 October 2005, at 75). 22 Sitaropoulos and Giakoumopoulos v Greece (GC), App no 42202/07, ECHR 2012, 15 March 2012, at 64. 23 Johan van de Lanotte and Yves Haeck, Handboek EVRM, Dl 1, Algemene Beginselen (Antwerp/ Oxford: Intersentia, 2005) at 138. 24 See further Chap 2, sect 3.1.

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of the Convention, where the limitation clauses all contain the expression ‘prévues par la loi’ to denote lawfulness, lawfulness in the English language version is formulated in different ways. Article 5 speaks of ‘prescribed by law’ and Article 7 of ‘national or international law’. Article 8(2) states that ‘[t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law’. Article 11(2) states that ‘[n]o restriction shall be placed on the exercise of these rights other than such as are prescribed by law’. Lastly, Article 1 of Protocol 1 states that ‘[n]o one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law.’ Notwithstanding these differences in formulation, the ECtHR interprets legality in relation to the different articles of the Convention as far as possible in the same manner.25 In Sunday Times v United Kingdom (‘the Sunday Times case’)26, the Court discussed the various terms used in the different language versions of lawfulness in Articles 9, 10, and 11 of the Convention and Article 1 of Protocol 1 and Article 2 of Protocol 4. The Court stated in this regard that ‘the Court must interpret them in a way that reconciles them as far as possible and is most appropriate in order to realise the aim and object of the treaty.’27 In Malone v United Kingdom (‘the Malone case’)28 the Court stated that Article 8’s requirement of lawfulness should be interpreted in the light of the same general principles that apply with regard to lawfulness in Article 10.29 Furthermore, the legality principle is largely similar in relation to Articles 5 and 7 of the Convention.30 The ECtHR has stated ‘that when speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability.’31 The Court has also held that legality in the context of Article 5, as with legality in Articles 8 to 11, does not merely refer back to domestic law but also relates to the quality of the law.32

2.3 The importance of legality for the protection of Convention rights Although legality is most developed in relation to the limitation clauses and Articles 5 and 7, it is of central importance to all articles of the Convention.33 25 Jochen Abr. Frowein and Wolfgang Peukert, Die Europäische Menschenrechtskonvention, EMRK-Kommentar (2) (Kehl/Strasbourg/Arlington NP: Engel Verlag, 1996) at 796. 26 Sunday Times v United Kingdom (Pl), App no 6538/74, Series A no 30, 26 April 1979. 27 Sunday Times v United Kingdom (Pl), 26 April 1979, at 48. 28 Malone v United Kingdom (Pl), App no 8691/79, Series A no 82, 2 August 1984. 29 Malone v United Kingdom (Pl), 2 August 1984, at 66. 30 G. Dutertre, Key Case Law Extracts, European Court of Human Rights (Strasbourg:  Council of Europe Publishing, 2003) at 232. See also Clare Ovey and Robin White, Jacobs and White, The European Convention on Human Rights, 4th edn (Oxford:  Oxford University Press, 2006) at 127–8, 213–15; Johan van de Lanotte and Yves Haeck (2005) at 191; Ismoilov and ors v Russia, 24 April 2008, at 137. 31 CR v United Kingdom, 22 November 1995, at 33. 32 Mooren v Germany (GC), App no 11364/03, 9 July 2009, at 76 (not yet reported). 33 S. Trechsel, ‘Liberty and Security of Person’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht:  Martinus Nijhoff Publishers, 1993) at 292.

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Legality must be understood both to underlie the Convention as a whole and to be crucial to the effective enjoyment of all Convention rights.34 First, articles other than the Convention articles that contain limitation clauses and Articles 5 and 7 also refer to legality. An example is the requirement of Article 6 that a tribunal must be ‘established by law’.35 Secondly, when legality is connected to the question of whether an interference with a Convention right is justified, legality is the first condition to which the ECtHR looks. However, legality is not the only condition that must be satisfied, and relatively few cases are decided on its basis36— most are decided on the basis of proportionality.37 Still, if an interference does not conform to the requirements of legality, in principle the ECtHR will not review whether it is proportionate. Thirdly, legality is of crucial importance given that a well-functioning legal system and adequately operating legal institutions form the basis of human rights protection.38 This idea finds expression in the case law of the ECtHR where the ECtHR has held—regarding Article 1 of Protocol 1—that states are required to set up a minimum legislative framework which allows individuals to assert their rights effectively and have them enforced.39 What’s more, the Court has established that it will, with regard to all substantive Convention rights, question the domestic authorities’ assessment of domestic law when this is flagrantly and manifestly arbitrary.40 One example that shows the relevance of legality beyond the limitation clauses is the case of Moiseyev v Russia41 (‘the Moiseyev case’) which, amongst other issues, concerned restriction of the legal assistance provided to the applicant by his lawyer. The ECtHR noted that the prosecuting authorities had exercised full and effective control over the contact between the applicant and his lawyer, and thus the defence was placed in a position of dependence on, and subordination to, the discretion of the prosecution. This arrangement was not lawful under domestic law; the Court also found that it was arbitrary and, accordingly, it established a breach of the principle of equality of arms.42 Given the centrality of legality for the effective protection of Convention rights, it appears necessary for the Strasbourg Court to review explicitly the quality of national law in all cases where the applicable national law is lacking in clarity or 34

Johan van de Lanotte and Yves Haeck (2005) at 125. See further Chap 4, sect 4.4 36 Regarding Article 11, one of the few cases where legality is found lacking is the case of Hasan and Chaush v Bulgaria (GC), App no 30985/96, ECHR 2000-XI, 26 October 2000, at 85–7. 37 J.G.C. Schokkenbroek (1996) at 190; Johan van de Lanotte and Yves Haeck, Handboek EVRM, Dl. 2.1 Artikelsgewijze Commentaar (Vol. 1)  (Antwerp:  Intersentia, 2004) at 969; Anthony Lester, ‘Freedom of Expression’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff Publishers, 1993) at 485–6. 38 According to Frowein, lawfulness has not played a considerable role in the context of Article 1 of Protocol 1, even though the importance of a lawful basis of expropriation should not be underestimated for the fair and equal application of the rule. Jochen Abr. Frowein, ‘The Protection of Property’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff Publishers, 1993) at 521. 39 Kotov v Russia (GC), App no 54522/00, 3 April 2012, at 117 (unreported). 40 Sisojeva and ors v Latvia (GC), App no 60654/00, 15 January 2007, at 89 (not yet reported); Kononov v Latvia, 24 July 2008, at 108. 41 Moiseyev v Russia, App no 62936/00, 9 October 2008 (unreported). 42 Moiseyev v Russia, 9 October 2008, at 206–7. 35

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accessibility, independent of the question of whether the Convention article refers to national law.43 Through legality, the ECtHR assesses the quality of national laws and procedures and offers protection against the arbitrary interferences by national authorities with Convention rights.

2.4 The requirements of legality derived from the rule of law The ECtHR has derived the quality requirements of legality from the rule of law.44 The Sunday Times case was one of the first where it held that the phrase ‘in accordance with the law’ demanded that national law should conform to a Convention standard of quality. The Court held in this case that national law must be precise and accessible.45 Later, in the Malone case, the UK government argued that the ECtHR should only look at the question of whether an interference with a Convention right is lawful under domestic law. In other words, it argued that the Court should restrict its scrutiny to an ultra vires test, at least in the field of the interception of telecommunications, as such interferences do not impose ‘restrictions or controls on the individual to which he is obliged to conform’.46 The ECtHR did not accept this view and came to a principled judgment. The Court ruled that legality ‘does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention.’47 Consequently, legality does not merely demand the application of national laws and procedures, but also that national laws conform to a Convention standard of quality. The fact that legality requires domestic law to have sufficient quality, meaning that the law must be compatible with the rule of law, shows that the Court has developed its standard of legality based on the rule of law. The ECtHR has interpreted ‘lawfulness’ in line with the rule of law and has thus turned it into an instrument for measuring the quality of the law. Because the Court has derived the quality requirements from the rule of law, it understands legality as part of the rule of law. A number of writers also understand the legality concept in the case law as an element of the rule of law. They include accessibility and foreseeability as requirements of legality and of the rule of law.48 Other writers take a different view on 43 In contrast, Weiss argues against the review of national law by the ECtHR in cases where the Convention does not refer back to national law. Such a review would not be justified since the sovereignty of states separates the constitutional orders of the member states from that of the Convention. However, this view seems too narrow, because it disregards the far-reaching influence that is exerted by the case law also when the ECtHR does not review national law. Notable in this regard is the case law concerning the independence of the judiciary, which has led states to change the institutional set-up of their administrative appeal proceedings (Regina Weiss, Das Gesetz im Sinne der Europäischen Menschenrechtskonvention (Berlin: Duncker & Humblot, 1996) at 121). 44 Sunday Times v United Kingdom (Pl), 26 April 1979, at 49; Malone v United Kingdom (Pl), 2 August 1984, at 67. 45 Sunday Times v United Kingdom (Pl), 26 April 1979, at 49. 46 Malone v United Kingdom (Pl), 2 August 1984, at 67. 47 Malone v United Kingdom (Pl), 2 August 1984, at 67. 48 Frédéric Sudre, Jean-Pierre Marguénaud, Joël Andriantsimbazovina, Adeline Gouttenoire, and Michel Levinet, Les grands arrêts de la Cour européenne des Droits de l’Homme (2)  (Paris:  Presses

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the rule of law in relation to the limitation clauses, and argue that it is actually a separate requirement reviewed by the ECtHR as part of the question of whether an interference is lawful, along with foreseeability, accessibility, and the domestic legal basis.49 They understand the rule of law to imply that the law must ensure adequate safeguards against abuses and delimit discretionary powers of authorities.50 Another view on legality that is sometimes taken is to understand that the rule of law is an element of foreseeability.51 When looking at the case law, it is clear why foreseeability is sometimes understood in the literature as a separate requirement. The ECtHR does not always explicitly refer to the rule of law when it reviews the quality of national law.52 For instance, in the case of Pla and Puncernau v Andorra,53 the Court ruled the interpretation of national law by the Andorran High Court of Justice to be discriminatory. The Court stated that it must act when national authorities interpret national law in an unreasonable or arbitrary manner, but did not mention the rule of law.54 Still, the case is certainly an example of one where the ECtHR upholds the rule of law by requiring legal certainty. The ECtHR has also, in other cases, only mentioned foreseeability as a requirement when reviewing legality. In addition, the Court in certain cases seems to mention foreseeability as a separate criterion. One example is the case of Kruslin v France55 (‘the Kruslin case’), where the ECtHR explained, ‘in accordance with the law’, that it required foreseeability and compatibility with the rule of law.56 Furthermore, other elements of legality, such as the precision of the law, are in certain cases mentioned without the rule of law.57 Nevertheless, whether the ECtHR explicitly mentions the rule of law in all judgments where it reviews legality should not be the decisive factor.

Universitaires de France, 2003) at 47–51; Jacques Chevallier, L’État de droit, 4th edn (Paris: Montchrestien, 2003) at 107; Anika Logemann, Grenzen der Menschenrechte in Demokratischen Gesellschaften, die ‘Demokratische Gesellschaft’ als Determinante der Grundrechtsschranken der Europäischen Menschenrechtskonvention (Baden-Baden:  Nomos, 2004) at 186–8; G. Cohen-Jonathan, ‘Respect for Private and Family Life’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff Publishers, 1993) at 420–2. 49 Jukka Viljanen, The European Court of Human Rights as a Developer of the General Doctrines of Human Rights Law: A Study of the Limitation Clauses of the European Convention on Human Rights (Tampere:  Tampere University Press, 2003) at 185–7; Nihal Jayawickrama, The Judicial Application of Human Rights Law, National, Regional and International Jurisprudence (Cambridge:  Cambridge University Press, 2002) at 190–1. 50 P. van Dijk et al (2006) at 336–8; Jukka Viljanen (2003) at 185–9. 51 Claudia Johanna Staal (1995) at 60–2; Johan van de Lanotte and Yves Haeck, Handboek EVRM, Dl 1, Algemene Beginselen (Antwerp/Oxford, Intersentia: 2005) at 125–134, 191. 52 For example, in the cases of Vgt Verein Gegen Tierfabriken v Switzerland, App no 24699/94, ECHR 2001-VI, 28 June 2001, at 52; Kokkinakis v Greece, App no 14307/88, Series A no 260-A, 25 May 1993, at 52. 53 Pla and Puncernau v Andorra, App no 69498/01, ECHR 2004-VIII, 13 July 2004. 54 Pla and Puncernau v Andorra, 13 July 2004, at 59. 55 Kruslin v France, App no 11801/85, Series A no 176-A, 24 April 1990, at 27. 56 Kruslin v France, 24 April 1990, at 27. 57 For instance, in the Cantoni case, the generality versus the precision of the law was discussed in relation to Article 7 without any mention of the rule of law. Cantoni v France (GC), App no 17862/91, ECHR 1996-V, 15 November 1996, at 29–32; Kokkinakis v Greece, 25 May 1993, at 37–41.

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What is most important is the similarity in the structure of the cases that concern legality. The ECtHR uses foreseeability and the other requirements of legality as quality requirements to which national law must conform. The requirement that national law must have certain quality is always recurring, and this is the central demand. In the context of the limitation clauses and Articles 5 and 7, the demand that domestic law must have certain quality is part of the established case law. Moreover, it must be recognized that the Malone case is still frequently referred to by the Court in later rulings on legality, which shows that the case remains one of the most authoritative rulings on legality. As noted, in the Malone case the ECtHR clearly described the quality requirements of legality to be derived from the rule of law. Furthermore, foreseeability must be understood as a requirement that is derived from the rule of law, because foreseeability and accessibility are means by which the government is restrained from acting arbitrarily. Non-arbitrariness is another term the Strasbourg Court uses in the context of the review of legality. It is a term used to denote the aim and purpose of legality and the rule of law. The ECtHR considers the protection against arbitrariness to be an important aim of the rule of law. In the Malone case, the ECtHR has given an extensive explanation of the rule of law as a protection against arbitrary interferences. The Court explains that the ability of people to foresee the consequences of the law is an aspect of the protection against arbitrariness.58 Also, abiding by the law means not acting arbitrarily, and this is a fundamental aspect of the rule of law according to the Court.59 Arbitrariness is a concept that continually recurs in the case law, and a concept that the ECtHR also connects with the existence of judicial safeguards which, in its case law, is also understood as an element of the rule of law.60 Legal certainty is another term the ECtHR uses when referring to legality and the quality of domestic law. This term should be understood as a synonym for legality in the case law.61 The Court refers to legal certainty as a demand that national authorities must respect the law.62 Also, the term legal certainty is, in the case law, tied to demands for the stability and predictability of the legal system. The ECtHR has stated that the principle of legal certainty is inherent in all the articles of the Convention,63 and has described legal certainty as an element of the rule of law.64 58

Malone v United Kingdom (Pl), 2 August 1984, at 68. Assanidze v Georgia, 8 March 2004, at 173. 60 Brogan and ors v United Kingdom (Pl), App no 11209/84, Series A no 145-B, 29 November 1988, at 58. See also sect 4.5. 61 Johan van de Lanotte and Yves Haeck (2005) at 125; Philip Leach, Taking a Case to the European Court of Human Rights 2nd edn (Oxford:  Oxford University Press, 2005) at 162; in contrast, Judge Bratza found that one could understand the relation between the right to a fair trial and legal certainty in terms of the principle of the equality of arms. Brumărescu v Romania (GC), App no 28342/95, ECHR 1999-VII, 28 October 1999, concurring opinion of Judge Bratza, joined by Judge Zupancic. 62 The ECtHR has held that ‘the principle of legal certainty may be compromised if domestic courts introduce exceptions in their case law which run counter to the wording of the applicable statutory provisions.’ Mooren v Germany (GC), 9 July 2009, at 93. 63 Marckx v Belgium (Pl), App no 6833/74, Series A no 31, 13 June 1979, at 58. 64 ‘[T]he principle of legal certainty—one of the fundamental aspects of the rule of law’: Assanidze v Georgia, 8 April 2004, at 130; also, the ‘principle of legal certainty, a principle which is implied in the 59

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Consequently, the reference made by the ECtHR to legal certainty in relation to the quality of the law also shows that the quality requirements are derived from the rule of law. To recapitulate, the ECtHR has developed its standard of legality based on the rule of law. Legality entails that a national law on which an interference with a Convention right is based must conform to certain quality requirements. Thus, legality goes beyond an ultra vires demand. Legality is of primary importance to all Convention rights, even though the standard is most developed in relation to the limitation clauses and Articles 5 and 7.  The quality standard set by legality must be understood as the central element of the rule of law in the context of the Convention. The standard of legality is thus part of the established case law of the ECtHR, and the Court mainly refers to the rule of law in relation to the quality requirements of legality.

3 The Existence of a National Law Legality first demands the existence of a national law on which an interference with a Convention right is based. Only after the ECtHR has established that such a law exists does the Court assess the quality of that law.65 Consequently, legality requires both the existence of a national law and a scrutiny of the quality of that law.66 Thus legality, in the context of the Convention, has both a national and an international dimension, as it demands a national law and imposes on this law a Convention notion of the essential qualities of law.67 Legality is an international legal standard that incorporates a national legal standard. Because of this double dimension, legality can be described as a semi-autonomous Convention term.68 Both dimensions of legality must be seen as part of the rule of law. In the case law, the ECtHR in the main explicitly refers to the rule of law as a demand that law must conform to the requirements of accessibility and foreseeability. However, the ECtHR also refers to the rule of law in cases where domestic law is not complied with.69 Moreover, as was shown in the theoretical accounts of the rule of law Convention and which constitutes one of the basic elements of the rule of law.’ Baranowski v Poland, 28 March 2000, at 56. 65 The case of Steel could be seen as an exception confirming the rule. The ECtHR found the interference to be unlawful—based on a different interpretation of the facts—even though it considered the law to have sufficient quality. Steel and ors v United Kingdom, App no 24838/94, ECHR 1998-VII, 23 September 1998, at 55–57, 64. 66 Stafford v United Kingdom (GC), 28 May 2002, at 63; Malone v United Kingdom (Pl), 2 August 1984, at 66. 67 David Harris, Michael O’Boyle, and Colin Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford: Oxford University Press, 2009) at 16; Johan van de Lanotte and Yves Haeck (2005) at 191. 68 O. Corten, ‘Le Concept de Loi en Droit International Public et dans la Convention Européenne des Droits de l’Homme’ in Luc J. Wintgens (ed), Het Wetsbegrip (Brugge: Die Keure, 2003) at 125–6; Johan van de Lanotte and Yves Haeck (2005) at 191; Felix Ermacora, Allgemeine Staatslehre:  Vom Nationalstaat zum Weltstaat (Berlin: Duncker und Humblot, 1970) at 666–7. 69 Assanidze v Georgia, 8 April 2004, at 175.

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described in Chapter 2, legality is generally understood as the central element of the rule of law and primarily requires strict adherence to law.70 Sections 3.1–3.3 will elaborate on the existence of a national law as the first aspect of legality.

3.1 The fourth instance doctrine With regard to the first aspect of legality—compliance with domestic laws and procedures—the ECtHR has attempted to maintain a certain distance from national authorities, fitting its subsidiary role. The Court has often emphasized that it is not a ‘fourth instance’ court, and has often noted that it will not deal with ‘errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention . . . .’71 Still, there is a question as to whether legality and the rule of law do not demand that the ECtHR should actively and strictly review whether national law is complied with. In 1963, the European Commission on Human Rights (‘EComHR’) found that it should review domestic law, while maintaining a certain distance from national law. The EComHR noted that it must strike a delicate balance between a full scrutiny of national law and maintaining the distance appropriate to an international court, because national courts are primarily responsible for interpreting national law.72 The EComHR established that it was not its position to review how national authorities apply national law, except where the Convention incorporates national law. When this happens, the EComHR must supervise national law without becoming a ‘fourth instance’ court.73 It should only adjudicate on matters of national law where the authorities have misapplied the law in bad faith.74 The EComHR continued to apply this approach in its later decisions, showing much deference to national authorities in interpreting domestic law.75 On the whole, the ECtHR has followed the approach of the EComHR in its own cases. The Court has often stated that national authorities, and courts in particular, are best positioned to judge whether a national law existed. It has also noted that it should only review whether national law conforms to the Convention standard of legality where the Convention refers back to such law. At the same time the ECtHR has noted the limited scope of this review, because national authorities are best qualified to settle issues of national law.76 The standard phrase used by the Court is:  ‘It is in the first place for the national authorities, notably the courts, to interpret and apply national law.’77 The respect the ECtHR shows for the

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See further Chap 2, sect 3.1, in the text around n 180. García Ruiz v Spain (GC), App no 30544/96, ECHR 1999-I, 21 January 1999, at 28; K-HW v Germany (GC), App no 37201/97, ECHR 2001-II, 22 March 2001, at 44; Benham v United Kingdom (GC), App no 19380/92, ECHR 1996-III, 10 June 1996, at 42. 72 Altmann (Barbie) v France (Pl), App no 10689/83, 37 DR 230, 4 July 1984, at 234–5. 73 X v Federal Republic of Germany, App no 1169/61, Recueil 13, 24 September 1963, at 1–41. 74 X v Netherlands, App no 2621/65, Recueil 19, 1 May 1966, at 100–5. 75 Vandam and Lacroix v Belgium (Pl), App no 19038/91, 28 June 1993, at 1a (unreported). 76 Winterwerp v Netherlands, App no 6301/73, Series A no 33, 24 October 1979, at 45–6. 77 CR v United Kingdom, 22 November 1995, at 40. 71

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responsibility of national institutions to interpret the law not only covers national law, but also international law.78 Equally, the ECtHR has judged that Community judicial organs are better placed to interpret and apply EU law.79 The effective review of compliance with national laws and procedures depends on the arguments raised by the applicant and the government, and also on the arguments made in the national judicial procedure. In cases where the national government accepts that an interference is not in accordance with the law, or where domestic law is clearly lacking or even non-existent, the Court will establish a violation of the Convention on the basis that domestic law does not provide adequate protection of a Convention right.80 For example, in the case of Assanidze v Georgia,81 the ECtHR found that the continued detention of the applicant, despite the existence of a court order for his release, was contrary to the rule of law.82 Also, in cases where domestic courts have established the unlawfulness of an interference, the Court will establish a violation of the Convention on the basis that domestic law does not provide adequate protection of a Convention right.83 However, if domestic courts do not discuss the lawfulness of interferences with Convention rights in their decisions, and domestic law is ambiguous, the ECtHR cannot easily review legality. The case of Margareta and Roger Andersson v Sweden84 is an example of how the ECtHR depends on the national authorities and, especially, on decisions of domestic courts, for an effective review of legality. This case concerned the limitation of meetings, as well as communication by telephone and correspondence, between a parent and a child. The Swedish law was unclear on the question of whether the social welfare authorities were permitted to extend a restriction on access to cover correspondence and telephone communication. The ECtHR found that Swedish courts had in several other cases reviewed limitations of correspondence and telephone communication and had not explicitly decided the lawfulness of such limitations but even so—considering the outcome of these cases—the Swedish courts had apparently not found such restrictions to be unlawful. Consequently, the Court decided that national courts were primarily responsible for interpreting and applying national law; established that the restrictions were in accordance with the law; and found that the interference was lawful.85 Another example is the case of Winterwerp v Netherlands86 (‘the Winterwerp case’), in which the applicant

78 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland (GC), App no 45036/98, ECHR 2005-VI, 30 June 2005, at 143; Waite and Kennedy v Germany (GC), App no 26083/94, ECHR 1999-I, 18 February 1999, at 54; Kononov v Latvia, 24 July 2008, at 110. 79 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland (GC), 30 June 2005, at 143. 80 A v France, 26 November 1993, at 38–9; Halford v United Kingdom, App no 20605/92, ECHR 1997-III, 25 June 1997, at 50–1; Djavit an v Turkey, App no 20652/92, ECHR 2003-III, 20 February 2003, at 66–7; Adali v Turkey, App no 38187/97, 31 March 2005, at 271–5 (unreported). 81 Assanidze v Georgia (GC), App no 71503/01, ECHR 2004-II, 8 April 2004. 82 Assanidze v Georgia, 8 April 2004, at 173. 83 Lexa v Slovakia, App no 54334/00, 23 September 2008, at 132–7, 142 (unreported). 84 Margareta and Roger Andersson v Sweden, App no 12963/87, Series A no 226-A, 25 February 1992. 85 Margareta and Roger Andersson v Sweden, 25 February 1992, at 82–5. 86 Winterwerp v Netherlands, App no 6301/73, Series A no 33, 24 October 1979.

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had argued that the detention orders issued against him by a single-judge chamber were not in accordance with the Dutch Code of Civil Procedure. The ECtHR found that the applicant had raised a problematical question of Dutch law, which remained unresolved as long as there was no ruling of the Dutch cassation court on the matter. Accordingly, the Court found that it did not have sufficient reason to find that the interference had not been in accordance with the law.87 In the case of Barthold v Germany88 (‘the Barthold case’), the applicant had also pleaded non-compliance with national law. The ECtHR established that the scope of its powers to review compliance with national law is limited. Furthermore, it judged that the evidence in the case did not clearly disclose non-observance of the law.89 Consequently, in those cases where national law is ambiguous or unclear, and domestic courts have not resolved this ambiguity, the ECtHR will only marginally review compliance with domestic law. In addition, in cases where domestic courts have interpreted domestic law, the ECtHR has stated that it only assesses the effects of the interpretation by national authorities of national law.90 An example is the case of Waite and Kennedy v Germany.91 Here, the Court did not inquire deeply into the manner in which international law took effect in the domestic legal sphere, because this is primarily the task of national courts. The Court stated that it would only look at the effects of the interpretation of international law by national courts.92 The Court consequently concluded that the national court’s reasons for granting immunity were not arbitrary. Thus the ECtHR did not establish the existence of a national law on which the interference was based; rather, it focused on the question of whether the effects of the interpretation of national law by the national authorities amounted to an arbitrary interference with a Convention right. In this manner, it is the requirement that laws must have sufficient quality that enables the ECtHR to review national law in an independent manner. In certain cases, the ECtHR circumvents the review of the existence of a national law on which an interference is based by focusing instead on the question of whether, in the specific circumstances of a case, the interference with a Convention right is arbitrary.93 An example is the case of Bozano v France94 where the Court reviewed whether the applicant was lawfully deprived of his liberty. The information on French law on these points was inconclusive and disputed. The French government and the

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Winterwerp v Netherlands, 24 October 1979, at 48. Barthold v Germany, App no 8734/79, Series A no 90, 25 March 1985. 89 Barthold v Germany, 25 March 1985, at 48. 90 Kononov v Latvia (GC), App no 36376/04, 17 May 2010, at 197 (not yet reported); Korbely v Hungary (GC), App no 9174/02, 19 September 2008, at 72 (not yet reported). 91 Waite and Kennedy v Germany (GC), App no 26083/94, ECHR 1999-I, 18 February 1999. 92 Waite and Kennedy v Germany (GC), 18 February 1999, at 54–7; Beer and Regan v Germany (GC), App no 28934/95, 18 February 1999, at 44 (unreported). 93 For example, in the case of Ashingdane the ECtHR stated as follows: ‘Accordingly, the Court’s task in assessing the permissibility of the limitation imposed is not to review section 141 of the 1959 Act as such but the circumstances and manner in which that section was actually applied to Mr. Ashingdane.’ (Ashingdane v United Kingdom, App no 8225/78, Series A no 93, 28 May 1985, at 59. 94 Bozano v France, App no 9990/82, Series A no 111, 18 December 1986. 88

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applicant disagreed over the interpretation of two judgments issued on this case by national courts. The ECtHR noted that national authorities have the primary responsibility to interpret national law and that its scope of review is thus limited. It also found that there was sufficient reason to have the gravest doubts whether the contested deprivation of liberty satisfied the legal requirements in the respondent state. Instead of deciding whether, under French law, Bozano had been unlawfully deprived of his liberty, the Court reviewed the facts of the case and decided that the deprivation of liberty was arbitrary.95 An exception is the case of Kononov v Latvia96 (‘the Kononov case’), in which the chamber judgment is evidence of a different view of its own role regarding the review of domestic law. In this judgment, the ECtHR established that it will, with regard to all substantive Convention rights, only question the domestic authorities’ assessment of domestic law when this assessment is flagrantly and manifestly arbitrary.97 In addition, when the Convention expressly refers to domestic law, the principle of jura novit curia applies. As a failure to comply with domestic law may entail a violation of the Convention, the ECtHR will review whether domestic law has been complied with.98 The Grand Chamber ruled two years later in the same case and agreed with the chamber that the Court’s powers of review must be greater when the Convention right itself requires the existence of a domestic law. Still, the Grand Chamber did not refer to the principle of jura novit curia and concluded that it must determine whether the result reached by the national courts’ judgments was compatible with the Convention.99

3.2 The material view on domestic law When the ECtHR determines whether there is a basis in domestic law, it does not look at law in the formal sense, but rather in the material sense.100 The term material here denotes the absence of strict formal criteria with respect to the institutional origin of law.101 By looking at the domestic basis of the law, the ECtHR accordingly does not demand the law to have a specific source, or to originate from a specific authority, or to have a certain application.102 Whether domestic authorities accord legal status to a specific norm is central. The ECtHR has found: When speaking of ‘law’ article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute as

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Bozano v France, 18 December 1986, at 58–9. Kononov v Latvia, App no 36376/04, 24 July 2008 (unreported). 97 Sisojeva and ors v Latvia (GC), 15 January 2007, at 89; Kononov v Latvia, 24 July 2008, at 108. 98 Kononov v Latvia, 24 July 2008, at 110. 99 Kononov v Latvia (GC), 17 May 2010, at 198. 100 Johan van de Lanotte and Yves Haeck (2005) at 126, Claudia Johanna Staal (1995) at 59–60; G. Cohen-Jonathan (1993) at 420–1. 101 The term ‘material’ as used here thus differs from the terms ‘substantive law’ and ‘substantive definitions of the rule of law’, as explained in Chap 2, because the latter term refers to the content of law. See also Chap 2, sect 2.1, in the text around n 17 and beyond. 102 Regina Weiss (1996) at 153. See also Chap 6, sect 3.1, in the text around n 59. 96

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well as case law. . . . In this connection, the Court has always understood the term ‘law’ in its ‘substantive’ sense, not its ‘formal’ one. It has thus included both enactments of lower rank than statutes and unwritten law. . . . In sum, the ‘law’ is the provision in force as the competent courts have interpreted it.103

The Court considers both statute laws and enactments of a lower rank, such as administrative acts and circulars, to constitute law.104 Furthermore, the ECtHR has explicitly accepted that interferences may be based on ‘unwritten law’,105 the term by which it has referred to the common law system and thus to case law. With regard to the continental legal systems, the Court also accepts case law as a lawful basis for interferences with human rights.106 The ECtHR has also—regarding written law—remarked that ‘the “law” is the enactment in force as the competent courts have interpreted it in the light, if necessary, of any new practical developments.’107 It is unclear whether the Court attaches the same importance to the case law of the continental European states as it does to that of common law countries; the ECtHR has stated that it will not look into that matter in the abstract, but will rather focus on the quality requirements set to the law.108 International treaties can also form a lawful basis for interfering with one of the Convention rights.109 Of further interest is that lawfulness under Article 7 means that the conviction can be based on either national or international law.110 However, administrative regulations cannot be a lawful basis for an interference when they are not based on delegated authority.111 The ECtHR has, when reviewing compliance with national laws and procedures, taken into account the structure of delegation.112 For example, in the Barthold case, when reviewing the legality of an interference with the freedom of expression, the Court established that the competence of an organized professional group to issue legal rules had been derived from parliamentary delegation of independent rule-making power.113 At the same time, it must be taken into account that the delegation of powers is neither a strict nor an independent requirement. As explained in section 3.1, the review of compliance with domestic laws and procedures is not always strict, and the review also depends on the criteria that are set by national law. 103

Kafkaris v Cyprus (GC), App no 21906/04, 12 February 2008, at 139 (not yet reported). Margareta and Roger Andersson v Sweden, 25 February 1992, at 84, and Vereinigung Demokratischer Soldaten Österreichs and Gubi v Austria, App no 15153/89, Series A no 302, 19 December 1994, at 31. 105 Sunday Times v United Kingdom, 26 April 1979, at 47; Malone v United Kingdom (Pl), 2 August 1984, at 66; Jochen Abr. Frowein and Wolfgang Peukert (1996) at 329. 106 107 Kruslin v France, 24 April 1990, at 29. Kruslin v France, 24 April 1990, at 29. 108 Carbonara and Ventura v Italy, App no 24638/94, 30 May 2000, at 64 (not yet reported). 109 Groppera Radio Ag and ors v Switzerland (Pl), App no 10890/84, Series A no 173, 28 March 1990, at 65–8. See also Autronic AG v Switzerland (Pl), App no 12726/87, Series A no 178, 22 May 1990, at 57; Jersild v Denmark (GC), App no 15890/89, Series A no 298, 23 September 1994, at 27. 110 ‘The second paragraph of Article 7 . . . constitutes an exceptional derogation from the general principle laid down in the first. The two paragraphs are thus interlinked and must be interpreted in a concordant manner . . . ’. Kononov v Latvia, 24 July 2008, at 115; HW v Germany (GC), 22 March 2001, at 46, 92, 113. 111 Logemann, in contrast, alleged that it is not the position of the Court to review such matters (Anika Logemann (2004) at 178–80). 112 See further Chap 6, sect 3.1, in the text around n 61. 113 Barthold v Germany, 25 March 1985, at 46. 104

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3.3 Analysis The ECtHR takes a broad material view of law and is not restricted by formalist notions of law. First, as the Court’s concept of law is rather flexible, it can accommodate differences between legal systems, such as the difference between the continental and the common law systems.114 It is essential that a flexible position on the concept of law is taken, especially given the differences in approach to the sources of law in different legal systems.115 If the ECtHR were not to find case law acceptable as a legal basis for an interference with a Convention right, it would force the United Kingdom and Ireland to change their legal systems.116 Secondly, the material approach to law allows the Court a wide scrutiny, so that it is better able to address the effects of the law in a particular case. The approach taken by the ECtHR to review of the existence of a national law is rather reserved.117 One reason for this is the great differences between legal systems. Also, it is not the role of the Court to independently interpret national law or correct mistakes of law. The ECtHR cannot function as a fourth instance court and national authorities are primarily responsible for interpreting national law.118 The ECtHR should, therefore, limit its review of the existence of a national law principally to cases where national law was evidently breached.119 It has been argued that the Court may not independently interpret domestic law; that it may only enquire ‘whether domestic law, as established by the national authorities, is compatible with the Convention.’120 Also, it can be argued that, when reviewing whether a national law exists, it only establishes what the national legal settings are to enable it to review the quality of the law.121 This view of the role of the Court is, however, not entirely accurate. On the one hand, national authorities are primarily responsible for interpreting and applying national law, while on the other hand the Convention, where it refers to domestic law, requires that interferences with Convention rights are in accordance with that law. Consequently, the review by the ECtHR of the existence of a national law is subject to a difficult balance between effective review and recognizing the primary role of national courts to interpret national law.122 Still it is not justified for the Court to be overly hesitant in its scrutiny of domestic law. Human rights protection is primarily based on national rules and procedures. An overly reserved approach could threaten the effective protection of human rights. For example, the judgment in the Winterwerp case can be criticized as being too lenient in its review of national law.123 Effective human rights protection can require 114

115 Frédéric Sudre et al (2003) at 45–7. See also Chap 2, sect 2.4. Jochen Abr. Frowein and Wolfgang Peukert (1996) at 330. 117 J.G.C. Schokkenbroek (1996) at 179; Johan van de Lanotte and Yves Haeck (2005) at 191. 118 Johan van de Lanotte and Yves Haeck (2005) at 223. 119 Jochen Abr. Frowein and Wolfgang Peukert (1996) at 86, 332. 120 Joint dissenting opinion of Judges Bonello, Strážnická, Bîrsan, Jungwiert, and Del Tufo at Maestri v Italy (GC), App no 39748/98, ECHR 2004-I, 17 February 2004, at 7–9. 121 Regina Weiss (1996) at 64–5. 122 Trechsel remarks on this issue, in the context of Article 5, that the ECtHR applies in dubio pro reo in favour of the respondent government (S. Trechsel (1993) at 295). 123 S. Trechsel (1993) at 295. 116

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the ECtHR to review how national authorities apply national law.124 Also, the respect which the Court shows for the primary responsibility of national institutions to interpret the law does not need to cover international law, since national authorities are not necessarily better placed to examine international law.125 At least where the Convention incorporates international law, the ECtHR should actively scrutinize national law.126 In addition, the material concept of law should not be stretched too wide. Not all types of domestic regulation should pass the test of legality. For example, where the Court accepted imprecise administrative acts and also a circular as a legal basis for an interference, the concept of law adopted by the ECtHR could be described as too broad.127 Increasingly, the balance between effective review and respect for the primary position of national courts to interpret the law is tipping towards a more active role being taken up by the ECtHR in reviewing domestic law. First, the Court has already adopted an active role in enquiring into issues of domestic law based on the principle of jura novit curia.128 Even so, the Grand Chamber did not seem to follow the line of argument of the chamber judgment in the Kononov case, and did not refer to this principle. Secondly, and more importantly, the review of the quality of the law does allow the ECtHR to actively review domestic law. The focus of the Court on the quality of the law ensures an autonomous review of national law without having to establish in detail whether a national law exists. Thus, indirectly, through the review of the quality of the law, the ECtHR does actively and independently review domestic law, as will be shown in the sections 4.1 to 4.7. In this manner the notion that national authorities are primarily responsible for interpreting national law can be maintained.

4 The Quality Requirements set to National Law Legality requires the existence of a national law, and also demands that the domestic law has sufficient quality. Legality in the context of the Convention consists of a number of requirements which the ECtHR uses to review the quality of national law. These requirements are that law must be accessible, foreseeable, and provide judicial safeguards in cases where the law grants wide discretionary powers to governmental authority. Foreseeability, more specifically, demands that law is not retroactively applied, is consistent, and is sufficiently precise as well as general. 124 T. Barkhuysen, Het EVRM als Integraal Onderdeel van het Nederlandse Bestuursrecht, Preadvies VAR 2004 (The Hague: Boom Juridische Uitgevers, 2004); R.A. Lawson and A.W.H. Meij, Internationale Rechtspraak in de Nederlandse Rechtsorde (Preadvies) (129, 1999-1) (Deventer: W.E.J. Tjeenk Willink, 1999) at 54–61. 125 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland (GC), 30 June 2005, at 143; K.-H.W. v Germany (GC), 22 March 2001, at 44; Waite and Kennedy v Germany (GC), 18 February 1999, at 54; Kononov v Latvia, 24 July 2008, at 110. 126 127 R.A. Lawson and A.W.H. Meij (1999) at 55–6. Frédéric Sudre et al (2003) at 47. 128 Kononov v Latvia, 24 July 2008, at 108–10.

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The legality concept is given substance through the quality requirements.129 Through legality, which is derived from the wider notion of the rule of law, the ECtHR can autonomously assess the quality of national laws where Convention rights are concerned. By using this autonomous standard of quality, the Court can ensure the effective protection of Convention rights in the national legal order.130

4.1 Accessibility When the ECtHR reviews the quality of national law, it generally reviews the accessibility of the law. Accessibility is a requirement which is not easily found to be lacking.131 The ECtHR has stated that ‘the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case’.132 The individuals that are affected by specific legislation or by administrative practice must be ‘sufficiently aware of their contents’.133 Accessibility of the law does not necessarily demand its publication. If people have the possibility to request a copy of the relevant rules, or can consult them in a specified place, this could be sufficient. An example is Groppera Radio Ag v Switzerland134 which concerned a restriction of the freedom of expression. The law on which this restriction was based—the Radio Regulations—could only be consulted in the head office of the PTT, or obtained from the International Telecommunication Union. As the field of law applicable in this case was highly technical and complex, and primarily intended for specialists who knew how to obtain the necessary information, the ECtHR ruled that the accessibility requirement was satisfied.135 However, the fact that the regulations were not published was only acceptable to the Court because of the exceptional nature of the case.136 Accessibility does not require a specific method of publication or a specific degree of publicity. An example is the case of Špacek, S.R.O. v Czech Republic137 where the disputed law was not published by the official means but in a bulletin published by the Czech ministry of finance to inform the public about measures adopted by the ministry. The ECtHR regarded this form of publication to be compatible with the accessibility requirement. The Court recalled that ‘the term “law” is to be understood in its substantive sense and not in its formal one’.138 129

Frédéric Sudre et al (2003) at 47. J.G. Merrills (1993) at 130; Jochen Abr. Frowein and Wolfgang Peukert (1996) at 6. Frédéric Sudre et al (2003) at 48. 132 Malone v United Kingdom (Pl), 2 August 1984, at 66. See also Sunday Times v United Kingdom (Pl), 26 April 1979, at 49. 133 Silver and ors v United Kingdom, 25 March 1983, at 88–9; Leander v Sweden, 26 March 1987, at 51. 134 Groppera Radio Ag and ors v Switzerland (Pl), App no 10890/84, Series A no 173, 28 March 1990. 135 Groppera Radio Ag and ors v Switzerland, 22 February 1990, at 35, 65–8. See also Autronic Ag v Switzerland (Pl), 22 May 1990, at 57. 136 Jochen A. Frowein, ‘The European Convention on Human Rights as the Public Order of Europe’ in Antonio Cassese and Joseph H.H. Weiler (eds), Collected Courses of the Academy of European Law: The Protection of Human Rights in Europe (Vol I, Book 2), Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1990) at 340. 137 Špacek, S.R.O. v Czech Republic, App no 26449/95, 9 November 1999 (unreported). 138 Špacek, S.R.O. v Czech Republic, 9 November 1999, at 57. 130 131

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The test of accessibility is less rigorous in relation to professionals and areas of the law which are technical. Thus accessibility is not a strict and formal requirement, but rather an open principle that will be assessed in the light of the circumstances of a specific case.139 Because the ECtHR upholds a material concept of law, rules of lower rank, such as instructions, may also be relevant to evaluate the quality of the law. The Court will only take such regulations into account when they are sufficiently accessible.140 It has stated that it will take into account instructions and administrative practices as long as ‘those concerned are made sufficiently aware of their contents.’141 The ECtHR has also looked at the requirement of accessibility when customary rules of international law are concerned. In the Kononov case, a former member of the Soviet army was convicted by Latvian courts for having committed war crimes. The legal basis was constituted by customary international law as evidenced by the Hague Convention of 1907. The Court found that the applicant, as a combatant, was expected to be aware of the fundamental customary rules of jus in bello.142 It did not specify in what manner the applicant should have become acquainted with the applicable customary rules of international law. In these circumstances the requirement of accessibility of the law appears very easily satisfied. The Grand Chamber, in its judgments two years later, explicitly noted that the fact that the international laws and customs of war were not published was not decisive. The applicant, as a commanding military officer, could reasonably have been expected to take special care in assessing the risk of the military operation in which he was engaged. The Grand Chamber emphasized that the applicant should have realized that the flagrantly unlawful nature of the ill-treatment and killing of civilians was contrary to the laws and customs of war.143

4.2 Foreseeability 4.2.1 The ability to know the law The most prominent requirement of legality is foreseeability. Foreseeability is essentially the demand that national law is sufficiently clear and precise to enable individuals to know the consequences that the law attaches to their actions, and when the government may resort to measures that affect their rights.144 On the one hand, foreseeability demands law to be sufficiently precise and, on the other, to be worded generally. The Court has ruled that the requirement that laws must be clear should be balanced against the requirement that laws should be general.145 This balance is inherent in the foreseeability requirement. The generality 139

Groppera Radio Ag and ors v Switzerland (Pl), 28 March 1990, at 68. Leander v Sweden, App no 9248/81, Series A no 116, 26 March 1987, at 51, 54; Silver and others v United Kingdom, App no 5947/72, Series A no 61, 25 March 1983, at 88–9. 141 Silver and others v United Kingdom, App no 5947/72, Series A no 61, 25 March 1983, at 88–9 142 Kononov v Latvia, 24 July 2008, at 121–22. 143 Kononov v Latvia (GC), 17 May 2010, at 237–8. 144 Malone v United Kingdom (Pl), 2 August 1984, at 49. See also Jukka Viljanen (2003) at 191–4. 145 Cantoni v France, 15 November 1996, at 31. 140

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of the law enables law to be flexible; a law that is worded generally can be interpreted in different manners, and can thus be adjusted to changing circumstances.146 Also, foreseeability cannot be absolute, because the law must use categorizations and generalizations. The ECtHR has noted that the demand of certainty can lead to excessive rigidity.147 The precision of the law is especially important in the case of discretionary powers. When a law confers discretion on public authorities, the law must also indicate the scope of that discretion, although the more detailed provisions need not be part of the substantive law itself.148 In addition, a law cannot be foreseeable if it is inconsistent.149 An example is Khudyakova v Russia150 (‘the Khudyakova case’), which concerned detention with a view to extradition. The ECtHR established a breach of Article 5(1) of the Convention because the domestic authorities upheld inconsistent and mutually exclusive positions on the issue of the legal regulation of this type of detention.151 However, the Court does not apply the criterion of consistency strictly. It noted in the Khudyakova case that the issue of the quality of the law only becomes relevant if it is shown that the poor ‘quality of the law’ has tangibly prejudiced the applicant’s substantive Convention rights.152 An example of a lenient review is a case in which domestic courts had introduced exceptions to a law which ran counter to the wording of the applicable statutory provisions. The Strasbourg Court did not establish a breach of the Convention, although it noted that such interpretations should be kept to a minimum.153 Lastly, foreseeability opposes retroactive application of law. This aspect of foreseeability applies mainly in criminal cases and sets a specific standard, which will be discussed in section 4.4. However, non-retroactivity is also an aspect of foreseeability outside the context of Article 7.154 For example, the ECtHR has in a number of cases applied non-retroactivity in the context of the right to a fair trial.155 In principle, foreseeability is not an abstract requirement which poses a general requirement of clarity. Rather, the individual applicant should have been able to understand what consequences the law attaches to his actions and when the government may resort to measures that affect his rights.156 Still, it is not contrary to the foreseeability requirement if the law is only understood by the taking of legal advice.157 Also, the mere fact that such a provision is capable of more than one construction does not mean that it fails to meet the requirement of ‘foreseeability’ for the purposes of the Convention.158 146

147 Regina Weiss (1996) at 141–5. Silver and ors v United Kingdom, 25 March 1983, at 88. Bykov v Russia (GC), App no 4378/02, 10 March 2009, at 78 (not reported). 149 Ismoilov and ors v Russia, 24 April 2008, at 138. 150 Khudyakova v Russia, App no 13476/04, 8 January 2009 (unreported). 151 Khudyakova v Russia, 8 January 2009, at 70–4. 152 Khudyakova v Russia, 8 January 2009, at 69. 153 Mooren v Germany (GC), 9 July 2009, at 93. 154 OAO Neftyanaya Kompaniya Yukos v Russia, App no 14902/04, 20 September 2011, at 567 (unreported). 155 See further Chap 4, sect 2.4.1. 156 157 Anika Logemann (2004) at 188. Cantoni v France (GC), 15 November 1996, at 35. 158 Zhechev v Bulgaria, App no 57045/00, 21 June 2007, at 40 (unreported). 148

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Generally, the ECtHR reviews whether a specific law is in breach of the Convention in relation to the specific circumstances of a case.159 In this sense, foreseeability does not require an abstract review of the precision of the law. Of importance is whether the individual in the circumstances of a specific case could have foreseen what consequences the law attached to his actions.160 An example is Steel v United Kingdom161 (‘the Steel case’), where the Court reviewed the precision of a domestic law on which a deprivation of liberty was based. More specifically, the case concerned binding-over orders, which the Court found to be expressed in rather vague and general terms. In particular, it found the expression ‘to be of good behaviour’ to be imprecise and to offer little guidance to the person bound over as to the type of conduct which would amount to a breach of the order. Even so, the ECtHR found that these vague orders were still sufficiently clear, because the applicants had been subjected to a binding-over order after finding that they had committed a breach of the peace and should thus have been aware that they needed to refrain from similar behaviour. Consequently, the Court found the binding-over orders specific enough to be described as ‘lawful order[s] of a court’.162 Foreseeability is a relatively flexible standard, because the Court only demands that the results are reasonably foreseeable.163 In a number of cases concerning the right not to be punished without law—elaborated in section 4.4—foreseeability is applied in a rather lenient manner. Also, foreseeability is not a strict requirement and it is not very frequently found to be lacking.164 Still, foreseeability has also led the ECtHR to review national law in a strict manner, especially in cases that concern discretionary powers, as explained in section 4.2.4. Moreover, on the basis of foreseeability the ECtHR can interpret domestic law independently from domestic courts and as a consequence, it can come to different findings than domestic courts.165

4.2.2 Circumstances that influence the foreseeability standard The strictness with which the foreseeability requirement is applied depends on the content of the national law—the field the law is designed to cover and the number and status of those to whom the law is addressed.166 Where the law is directed to 159

J.G.C. Schokkenbroek (1996) at 500. Berend Hovius, ‘The Limitations Clauses of the European Convention on Human Rights and Freedoms and Section 1 of the Canadian Charter of Rights and Freedoms: A Comparative Analysis’ (1986) Yearbook of European Law 6, at 18. 161 Steel and ors v United Kingdom, App no 24838/94, ECHR 1998-VII, 23 September 1998. 162 Steel and ors v United Kingdom, 23 September 1998, at 76. 163 Sunday Times v United Kingdom (Pl), 26 April 1979, at 49. 164 Anika Logemann (2004) at 188; Berend Hovius (1986) at 16. 165 An example of where the Court does not limit itself to a marginal test of national law is a case concerning a political organization of the Macedonian minority group in Bulgaria. In this case, the ECtHR went into a detailed discussion of the different laws and how these related to the facts of the case, and came to different findings from national courts, but all under the heading of proportionality. United Macedonian Organisation Ilinden and ors v Bulgaria, App no 59491/00, 19 January 2006, at 70–4 (unreported). 166 Chorherr v Austria, App no 13308/87, Series A  no 266-B, 25 August 1993, at 25. See also Cantoni v France (GC), 15 November 1996, at 35. 160

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professionals, the ECtHR sets a different foreseeability standard. Professionals are supposed to proceed with a high degree of caution when pursuing their occupation.167 For example, journalists, book publishers, and book publishing companies are expected to be familiar with the legislation and the settled case law in their professional field and to seek advice from specialist counsel.168 Furthermore, the question of whether the law upon which an interference with a Convention right is based is sufficiently precise is influenced by the aim of the interference.169 The precision required for a law to be sufficiently foreseeable depends on the subject area.170 In several areas of the law, the ECtHR has indicated that foreseeability does not demand a high level of precision. First, in areas of law where the situation is constantly changing, such as that of competition, the demands of precision and clarity are less strict.171 An example is the case of Markt Intern Verlag Gmbh and Klaus Beermann v Germany172 which concerned a publishing firm that distributed bulletins aimed at specialized commercial sectors. The publishing of specific information concerning the commercial practices of a UK mail-order firm had been forbidden by German courts because publishing ran counter to the Competition Act. The publishing firm claimed this Act was drafted in vague terms and conferred a wide discretion on courts. The ECtHR noted that laws are frequently framed in a manner that is not absolutely precise, especially in an area such as competition.173 Secondly, foreseeability is less strict in the area of national security. Consequently, it is not necessary for staff in sectors that affect national security to be able to foresee precisely what security checks will be made by a special police service.174 Thirdly, the foreseeability requirement is less strict with regard to constitutional law, given the general nature of constitutional provisions.175 Fourthly, in the area of disciplinary law, foreseeability only demands a general norm.176 The reason for this is that disciplinary law does not seek to bar specific acts, but only to condemn conduct that professionals in the field generally find incompatible with their professional status.177 Finally, the Court has established that laws which concern morality are often formulated in broad terms to accommodate changing views in society. Generally,

167

Chauvy and ors v France, App no 64915/01, ECHR 2004-VI, 29 June 2004, at 45. Chauvy and ors v France, 29 June 2004, at 45–8. 169 Malone v United Kingdom (Pl), 2 August 1984, at 68; Olsson v Sweden (Pl), App no 10465/83, Series A no 130, 24 March 1988, at 61. 170 Berend Hovius (1986) at 17. 171 Markt Intern Verlag Gmbh and Klaus Beermann v Germany (Pl), 20 November 1989, at 30. 172 Markt Intern Verlag Gmbh and Klaus Beermann v Germany (Pl), 20 November 1989. 173 Markt Intern Verlag Gmbh and Klaus Beermann v Germany (Pl), 20 November 1989, at 30. 174 Leander v Sweden, 26 March 1987, at 51. 175 Rekvényi v Hungary (GC), App no 25390/94, ECHR 1999-III, 20 May 1999, at 34. See also Johan van de Lanotte and Yves Haeck (2005) at 132. 176 Van der Heijden v Netherlands, (Pl), App no 11002/84, 41 DR 268, 8 March 1985, at 270–1; Morissens v Belgium, App no 11389/85, 56 DR 132, 3 May 1988, at 135; Zihlmann v Switzerland, App no 21861/93, 82-B DR 12, 28 June 1995, at 18. 177 The case of Maestri can be seen as an exception confirming the rule. See the joint dissenting opinion of Judges Bonello, Strážnická, Bîrsan, Jungwiert, and Del Tufo in Maestri v Italy (GC), 17 February 2004. 168

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the Court finds laws relating to moral issues to be foreseeable when interpretative case law exists, even if they are formulated in broad terms.178 An example is the case of Müller v Switzerland179 where the Swiss government forbade the exhibition of the applicants’ paintings because of their obscene character. Although obscenity is a rather broad and vague term, the ECtHR still judged the interference to be foreseeable, given the existence of interpretative case law.180 Consequently, in areas of law that are constantly changing, or which concern national security or morality, laws may be less precise. The foreseeability requirement is more easily satisfied when interpretative case law, preparatory work, or instructions are present. The ECtHR has stated that absolute clarity of laws is not possible; often judicial interpretation is necessary to elucidate doubtful points and adapt the law to changing circumstances.181 The degree of precision that the ECtHR requires of national law depends to a large extent on the existence of interpretative case law.182 Even when a national law is ambiguous, the ECtHR will not rule it to be contrary to the demand of lawfulness as long as there are sufficient cases to interpret the concept.183 The ECtHR has consistently stressed the central role of the judiciary in interpreting the law: It must also be borne in mind that, however clearly drafted a legal provision may be, its application involves an inevitable element of judicial interpretation, since there will always be a need for clarification of doubtful points and for adaptation to particular circumstances. A margin of doubt in relation to borderline facts does not by itself make a legal provision unforeseeable in its application. Nor does the mere fact that such a provision is capable of more than one construction mean that it fails to meet the requirement of ‘foreseeability’ for the purposes of the Convention. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice.184

If the terms of a law are vague, the interpretation and application can give guidance and thus remedy the possible defects in foreseeability.185 In this regard the Court has stressed the importance of consistency of national case law.186 Also, the requirement of foreseeability is more easily satisfied when preparatory work concerning a specific norm is available. Preparatory work can provide guidance as to the exercise of the discretion that a generally worded norm confers.187 178 Regarding interferences in the area of Article 10 of the Convention, see Johan van de Lanotte and Yves Haeck (2004) at 970. See also Wingrove v United Kingdom, App no 17419/90, ECHR 1996-V, 25 November 1996, at 42. 179 Müller and ors v Switzerland, App no 10737/84, Series A no 133, 24 May 1988. 180 Müller and ors v Switzerland, 24 May 1988, at 29. 181 Baskaya and Okcuoglu v Turkey (GC) App nos 23536/94 and 24408/94, ECHR 1999-IV, 8 July 1999, at 39. 182 Frédéric Sudre et al (2003) at 50. 183 Jukka Viljanen (2003) at 202; Gorzelik and ors v Poland (GC), App no 44158/98, ECHR 2004-I, 17 February 2004, at 64. 184 Gorzelik and ors v Poland (GC), 17 February 2004, at 65. 185 Vgt Verein Gegen Tierfabriken v Switzerland, 28 June 2001, at 55. 186 Kruslin v France, 24 April 1990; Anika Logemann (2004) at 184. 187 Olsson v Sweden (Pl), 24 March 1988, at 62.

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Lastly, instructions and administrative practices can also ensure the foreseeability of a generally worded law.188 An example is Silver v United Kingdom189 (‘the Silver case’), which concerned the control of prisoners’ mail. The basis for the control of the mail was directives and circular instructions that did not have the force of law, but were based upon the Prison Act and were consistently followed. The Prison Act itself left considerable discretion to the authorities. The existence of directives amended the uncertainty of the generally worded Prison Act and thus the law satisfied the requirements of legality.190 However, when secret measures are in issue, the law itself must indicate the scope of the administrative discretion.191 An example of a case where the existence of interpretative case law ensured that the law was sufficiently foreseeable is the Kokkinakis v Greece192 (‘the Kokkinakis case’). The applicant was convicted of the crime of ‘direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naivety.’ The ECtHR did not consider this crime to be too loosely defined; rather, it regarded the definition to be clear enough, considering that there was settled national case law which interpreted this statute.193 The Court’s judgment in the Kokkinakis case can be criticized because the offence of proselytism was not clearly defined and, moreover, the case law did not provide a consistent interpretation.194 Another example is the Cantoni v France195 where the applicants had faced punishment for unlawfully selling pharmaceutical products. The existence of interpretative case law was one of the reasons the ECtHR decided that the law was foreseeable.196 This judgment has also been criticized because the case law interpreting the law was contradictory.197 Consequently the ECtHR appears to leave domestic courts a lot of leeway to interpret national law. The Court also takes into account the interpretative case law of international courts. Jorgic v Germany198 (‘the Jorgic case’) is an extraordinary example in which the ECtHR does not appear to show the interpretation of international criminal law by the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) the same deference it shows for the interpretation of domestic law by national courts. 188

Silver and ors v United Kingdom, App no 5947/72, Series A no 61, 25 March 1983, at 88. Silver and ors v United Kingdom, 25 March 1983. 190 Silver and ors v United Kingdom, 25 March 1983, at 88. 191 Malone v United Kingdom (Pl), 2 August 1984, at 66–79; Leander v Sweden, 26 March 1987, at 51. 192 Kokkinakis v Greece, App no 14307/88, Series A no 260-A, 25 May 1993. 193 Kokkinakis v Greece, 25 May 1993, at 52. 194 Clare Ovey and Robin C.A. White (2010) at 302; Jochen Abr. Frowein and Wolfgang Peukert (1996) at 325. 195 Cantoni v France (GC), App no 17862/91, ECHR 1996-V, 15 November 1996. 196 Cantoni v France (GC), 15 November 1996, at 34–6. 197 Sebastian Winkler, ‘Der EGMR Zum Innerstaatlich Und Gemeinschaftsrechtlich (Rl 65/65/Ewg) Definierten Arzneimittelbegriff Beim Apothekenmonopol’ (1999) Europäische Grundrechte-Zeitschrift 26, at 181–3. 198 Jorgic v Germany, App no 74613/01, 12 July 2007. 189

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In the Jorgic case the applicant had been convicted by German courts for the crime of genocide. The definition of genocide used by the German courts was quite broad, because the intent to destroy did not necessitate the intent to destroy that group in a physical or biological sense. The German courts considered it sufficient that the perpetrator had intended to destroy the group in question as a social unit. The wide interpretation of the crime of genocide by the ECtHR in the Jorgic case stands in contrast to the judgments of the ICTY, which applied a stricter interpretation of the crime of genocide.199 Still, the ECtHR ruled that the applicant could have foreseen that he risked being charged and convicted of the crime of genocide.200 Of importance was the fact that the cases in which the ICTY interpreted the crime of genocide in a strict manner were delivered subsequent to the commission of his offences.201 Thus, where later judgments of an international tribunal interpret a specific criminal offence in a narrow manner, this does not lead to the conclusion that an individual could not foresee his conviction on the basis of a wider interpretation by national courts of the same offence. To sum up, foreseeability is a flexible requirement aimed at allowing the individual to understand the consequences that the law attaches to his actions. The strictness with which the ECtHR reviews the foreseeability of a law depends on the area of the law and the people that are addressed by the law. The existence of preparatory work, instructions and administrative practices, and interpretative case law can ensure that a law which is rather imprecisely worded is still foreseeable.

4.2.3 Independent review of domestic law Through the requirements of legality and, in particular, foreseeability, the ECtHR exercises an independent review over domestic law.202 An example of the Court reviewing domestic law independently from domestic courts, based on foreseeability, is the case of Korbely v Hungary.203 Here, it reviewed the scope of the crime against humanity in 1956 and the term non-combatant for the purposes of common Article 3 of the Geneva Conventions. The Court came to different findings than the national courts, and accordingly established a violation of the Convention because the applicant could not have foreseen that his acts constituted a crime against humanity under international law at the relevant time.204 Another example is Maestri v Italy205 (‘the Maestri case’), in which the ECtHR reviewed Italian legislation independently from Italian courts. The Court found that the applicant could not have foreseen that he would face disciplinary sanctions for being a member of the Freemasons.206 Several judges disagreed with the majority 199 L.J. van den Herik, ‘Ehrm 12 Juli 2007 Jorgic T. Duitsland, Wie Bewaakt Het Legaliteitsbeginsel Het Strengst: De Strafrechters Van Het Joegoslaviëtribunaal of De Straatsburgse Mensenrechterrechters?’ (2007) N.J.C.M. Bulletin 32(7) at 1035. 200 201 Jorgic v Germany, 12 July 2007, at 113. Jorgic v Germany, 12 July 2007, at 112. 202 Antonyan v Armenia, App no 3946/05, 2 October 2012, at 60 (not yet reported). 203 Korbely v Hungary (GC), App no 9174/02, 19 September 2008 (not yet reported). 204 Korbely v Hungary (GC), 19 September 2008, at 76–94. 205 Maestri v Italy (GC), App no 39748/98, ECHR 2004-I, 17 February 2004. 206 Maestri v Italy (GC), 17 February 2004, at 34–42.

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ruling and noted that the Court had failed to adhere to the ‘fourth instance’ doctrine, because the Italian Court of Cassation had already issued a ruling on the matter and had found that the disciplinary sanction was in accordance with Italian law. According to the minority, the ECtHR should have enquired whether domestic law, as established by domestic authorities, was compatible with the Convention. They also argued that the ECtHR should not reinterpret domestic law.207 Still, it does not appear that the approach of the majority in the Maestri case should be seen as contrary to the fourth instance doctrine. This doctrine only entails that the ECtHR will not correct mistakes of law. The approach of the majority in the Maestri judgment should instead be seen as one demanded by the foreseeability requirement. It is this requirement that requires the Strasbourg Court to review domestic law independently. Still, the Court would have done better to explicitly discuss whether the interpretation by the Italian Court of Cassation complied with the standard of foreseeability.208 The independent review of domestic law by the ECtHR can be problematic. As was described in sections 3.1 and 3.2, the Court has a subsidiary role and uses a material concept of law. The use of a material concept of law implies that the ECtHR does not always use the same concept of law as domestic authorities. As a consequence, it is not always adequately positioned to review domestic law independently from domestic authorities. An example of how an independent review of domestic law can be problematic is the case of Kafkaris v Cyprus209 which concerned a contract-murderer who was sentenced to a life sentence. The ECtHR examined what penalty a life imprisonment actually entailed under domestic law and whether the law satisfied the requirements of accessibility and foreseeability.210 It found that Cyprus had breached Article 7 of the Convention because the quality of the law was lacking. The law was found to be not sufficiently precise to enable the applicant to foresee the scope of the penalty of life imprisonment.211 This ruling can be criticized because the quality of law requirement was applied outside the context of legislation, namely to the impression given by the administrative authorities regarding the scope of the life sentence.212 Another issue concerns the fact that the ECtHR did not establish that the Cyprus authorities had retrospectively imposed a heavier penalty on the applicant.213 Judge Borrego Borrego found that the Court should have come to such 207 Joint dissenting opinion of Judges Bonello, Strážnická, Bîrsan, Jungwiert, and Del Tufo in Maestri v Italy (GC), 17 February 2004. 208 Another critique is whether the majority ruling did justice to earlier rulings of the EComHR, where it was decided that foreseeability cannot be strictly applied in the area of disciplinary law. Also, it could be said that the ECtHR should have taken into account the preparatory work that clarified the generally worded norm. Joint dissenting opinion of Judges Bonello, Strážnická, Bîrsan, Jungwiert, and Del Tufo in Maestri v Italy (GC), 17 February 2004, at 32. 209 Kafkaris v Cyprus (GC), App no 21906/04, 12 February 2008 (not yet reported). 210 Kafkaris v Cyprus (GC), 12 February 2008. 211 Kafkaris v Cyprus (GC), 12 February 2008, at 150. 212 In addition, according to Loucaides, the ECtHR has contradicted itself by finding no breach of the principle that no one may retroactively be given a higher penalty while at the same time finding the quality of the law lacking (partly dissenting opinion of Judge Loucaides, joined by Judge Jočienė, in Kafkaris v Cyprus (GC), 12 February 2008). 213 Kafkaris v Cyprus (GC), 12 February 2008, at 150.

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a decision. According to him, a change in the law concerning the punishment of life imprisonment took place through a decision by a Cyprus court that was issued at a date subsequent to the facts for which the applicant was punished. Consequently, he argued that Article 7 was breached because the applicant was retrospectively subjected to a higher penalty.214 Even though foreseeability allows the ECtHR to review domestic law independently from domestic authorities, the Court does seem to rely much on the arguments of the parties. In some cases it only reviews the quality of national law when this issue is raised by the applicants.215 The Court often merely notes the apparent agreement on the lawful basis and then proceeds to look at the proportionality. For example, in the case of Kimlya v Russia216 the Court noted that the parties had not disputed that the provision of national law was sufficiently accessible and foreseeable.217 By doing so, the Court seems to limit the review of lawfulness to the arguments that are brought up by the applicants.218 However, it would be more consistent to understand lawfulness as part of the legal requirements of the Convention itself. Thus the Court should actively review whether the national law upon which an interference with a Convention right is based has sufficient quality. An example is the judgment in the case of Colombani v France219 which can be criticized for failing to take into account the requirements of legality. In this case, the limitation of the freedom of expression was judged to be in breach of Article 10 of the Convention. The applicants had published articles on the subject of cannabis production in Morocco. Allegations were made in these articles that the Moroccan king did not make real efforts to stop the production and exportation of cannabis from his country. The applicants were convicted domestically for defamation of a foreign head of state. In the proceedings they could not fully argue their case because evidence of the soundness of their accusations was not admissible. The judgment of the ECtHR makes apparent that the national proceedings did not sufficiently protect the equality of arms in a criminal trial and, also, the defamation laws were unclear. The national courts conceded that the distinction between an unlawful insult and acceptable criticism was difficult to draw, so that journalists would have difficulty knowing how far they could go. Even so, because the applicants did not question the lawfulness of the interference, nor did the Court review this issue, and it judged the case on proportionality.220 To sum up, the strictness of the review can depend to a large extent on the arguments raised by the applicants.

214

Partly dissenting opinion of Judge Borrego Borrego in Kafkaris v Cyprus (GC), 12 February 2008. Roemen and Schmit v Luxembourg, App no 51772/99, ECHR 2003-IV, 25 February 2003, at 49; Johan van de Lanotte and Yves Haeck (2004) at 969. 216 Kimlya and ors v Russia, App no 76836/01 and 32782/03, 1 October 2009 (not yet reported). 217 Kimlya and ors v Russia, 1 October 2009, at 94–5. 218 In the case of Young, James, and Webster, the Court did not find it indispensable to examine whether the interference was in accordance with the law, because this issue was not ‘fully argued’ before the Court (Young, James, and Webster v United Kingdom (Pl), App no 7601/76, Series A no 44, at 60). 219 Colombani and ors v France, App no 51279/99, ECHR 2002-V, 25 June 2002. 220 Colombani and ors v France, 25 June 2002, at 34, 62. 215

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By being overly reluctant to review the quality of the law, the ECtHR appears in some cases to take insufficient account of the primary importance of legality.

4.2.4 Strict and abstract review of domestic law Foreseeability potentially allows the ECtHR to review domestic law not only independently from national authorities, but also strictly and in an abstract manner. Especially where law confers discretion on a public authority, the ECtHR upholds a strict standard of foreseeability. The Court has found that where the law confers discretion on a public authority, it must indicate the scope of that discretion.221 The Court has stated the following in this regard: Domestic law must afford a measure of protection against arbitrary interference by public authorities with Convention rights, in respect of which the rule of law would not allow unfettered powers to be conferred on the Executive. Consequently, the law must indicate with sufficient clarity the scope of any executive discretion and the manner of its exercise . . . .222

It has also found that if the executive is granted legal discretion so wide as to constitute unfettered power, this is contrary to the rule of law.223 An example is the case of Mürsel Eren v Turkey.224 This case concerned Article 2 of Protocol 1 of the Convention, which obliges states to ensure the right to education. The applicant claimed that the Turkish government had breached his right to university education because he was not allowed to enter university even though the marks he obtained in the entrance exams were very high. He was not admitted because the entry board did not believe his high results to be genuine after three years of bad marks, and considered they must have been the result of cheating. In this case, the breach of the right to education that was established by the Court was based on the exercise of discretionary powers by the entry board to annul the exam results of candidates. This discretionary power was too broad, and thus incompatible with the rule of law.225 The ECtHR has clarified that several factors are relevant to determine whether discretionary powers are sufficiently circumscribed. First, it is relevant whether the law limits the period during which authorities may exercise discretionary powers. Secondly, whether the law determines the reasons for which discretionary powers may be exercised is significant. Thirdly, whether there is a possibility to challenge or review the exercise of discretionary powers is relevant. An example is the case of Herczegfalvy v Austria226 which concerned the refusal of hospital authorities to

221 Silver and ors v United Kingdom, 25 March 1983, at 88; Malone v United Kingdom (Pl), 2 August 1984, at 67–8; Herczegfalvy v Austria, App no 10533/83, Series A no 244, 24 September 1992, at 90. 222 Gillan and Quinton v United Kingdom, App no 4158/05, 12 January 2010, at 77 (not yet reported); Gülmez v Turkey, App no 16330/02, 20 May 2008, at 49 (unreported); Hasan and Chaush v Bulgaria (GC), 26 October 2000, at 84; Malone v United Kingdom (Pl), 2 August 1984, at 68. 223 Maestri v Italy (GC), 17 February 2004, at 30. 224 Mürsel Eren v Turkey, App no 60856/00, ECHR 2006-II, 7 February 2006. 225 Mürsel Eren v Turkey, 7 February 2006, at 46. 226 Herczegfalvy v Austria, App no 10533/83, Series A no 244, 24 September 1992.

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send on the correspondence of an involuntarily interned psychiatric patient.227 The ECtHR found that the law did not specify the scope or condition of the discretionary power to control the applicant’s correspondence. The absence of any detail regarding the purpose, duration, and extent of the arrangements for review of the restriction of the applicant’s correspondence led the ECtHR to find that the law did not offer sufficient protection against arbitrariness.228 Another example is the case of Gillan and Quinton v United Kingdom229 which concerned two applicants who had been stopped and searched by police officers for articles that could be used in connection with terrorism. The ECtHR judged this to constitute an interference with the right to privacy and reviewed whether this interference was lawful. The relevant law in this case, the Terrorism Act 2000, empowered senior police officers to authorize any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he ‘considers it expedient for the prevention of acts of terrorism’. The authorization was limited in time to twenty-eight days, but was renewable. The authorization was also limited geographically, but to a fairly large area.230 Furthermore, police officers had wide discretionary power under the Terrorism Act 2000 to decide to stop and search: The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even need grounds for suspecting the presence of such articles.’231

In light of these circumstances, the Court considered the powers to stop and search under the Terrorism Act to be insufficiently circumscribed, and also that adequate legal safeguards against abuse were lacking.232 Yet another example is the Moiseyev case. The applicant, who was in prison, was not allowed to receive family visits for several months. Although Russian law stated that the investigator had the right to authorize up to two family visits per month, the ECtHR found the interference with the right to family life unlawful because the circumstances under which visits could be refused were not defined. The Court noted that the law did not determine the length of the measure, the reasons that could warrant its application, or a possibility of challenging a refusal.233 The exercise of discretion is evaluated differently if national authorities comply with obligations under EU law. In Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland 234 the ECtHR addressed the legality of an interference with Article 1 227

Herczegfalvy v Austria, 24 September 1992, at 91. Herczegfalvy v Austria, 24 September 1992, at 91. 229 Gillan and Quinton v United Kingdom, App no 4158/05, 12 January 2010 (not yet reported). 230 Gillan and Quinton v United Kingdom, 12 January 2010, at 80. 231 Gillan and Quinton v United Kingdom, 12 January 2010, at 83. 232 Gillan and Quinton v United Kingdom, 12 January 2010, at 87. 233 Moiseyev v Russia, 9 October 2008, at 248–50. See also Vlasov v Russia, App no 78146/01) 12 June 2008, at 125–6 (unreported). 234 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland (GC), App no 45036/98, ECHR 2005-VI, 30 June 2005. 228

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of Protocol 1 of the Convention. It found that Ireland had no choice to exercise discretion and award the applicant compensation or relaxation of the sanctions regime. The Court also established that the notions of uniform application and supremacy of EU law prevented the Supreme Court of Ireland from making such an award.235 Because the Supreme Court did not have discretion, but this instead amounted to compliance by Ireland with its legal obligations flowing from EU law, the interference was lawful.236 In relation to discretionary powers of government in the field of privacy, the ECtHR has even developed specific requirements to which domestic law must adhere. Especially in the context of the secret surveillance of telephone communications, foreseeability demands the existence of effective safeguards against abuse, by determining limits on the exercise of powers.237 Specifically, the ECtHR has established that the law must determine the kind of information that may be recorded. Also, there must be rules determining the categories of people against whom surveillance measures may be taken. Furthermore, the circumstances in which such measures may be taken or the procedure to be followed must be regulated. The law should also set limits on the length of time for which information may be kept.238 The ECtHR has set detailed and comparable requirements for national law where a government has made use of ‘safety files’. The Court found that the interference was lawful because the law contained explicit and detailed provisions as to what information could be handed out, the authorities to which information could be communicated, the circumstances in which such communication could take place, and the procedure to be followed by the National Police Board when taking decisions to release information.239 In addition, the ECtHR has decided that domestic law regulating the interception of telephone communications must clearly determine when authorities should protect the professional privilege of a lawyer. The law must set out the conditions under which and by whom the distinction is to be drawn between matters specifically connected with a lawyer’s work under instructions from a party to proceedings, and those relating to activity other than that of counsel.240 In Kruslin v France 241 as well as in Huvig v France,242 in which the ECtHR first developed these guidelines to which domestic law must adhere, the French government argued that the Court should be careful not to assess French law in the abstract. According to the French government, the ECtHR should not judge on a legislative 235 At the time of the judgment it was still European Community (‘EC’) law which obligated the Irish state to adopt the sanctions regime. However, since the Treaty of Lisbon, the EC has ceased to exist as a separate legal entity. 236 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland (GC), 30 June 2005, at 144–8. 237 Malone v United Kingdom (Pl), 2 August 1984, at 67. 238 Huvig v France, App no 11105/84, Series A no 176-B, 24 April 1990, at 34; Kruslin v France, 24 April 1990, at 35; Rotaru v Romania (GC), App no 28341/95, ECHR 2000-V, 4 May 2000, at 57; Vetter v France, App no 59842/00, 31 May 2005, at 26 (unreported); Kennedy v United Kingdom, App no 26839/05, 18 May 2010, at 152 (not yet reported). 239 Leander v Sweden, 26 March 1987, at 54–6. 240 Kopp v Switzerland, App no 23224/94, ECHR 1998-II, 25 March 1998, at 73. 241 Kruslin v France, App no 11801/85, Series A no 176-A, 24 April 1990. 242 Huvig v France, App no 11105/84, Series A no 176-B, 24 April 1990.

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policy; it should instead determine whether a specific interference is necessary in a democratic society, which is dependent upon the particular circumstances of the case.243 The ECtHR was not persuaded by this argument and stated that a certain degree of abstraction is necessary when determining if the law has sufficient quality.244 Of importance was that the interception of telephone conversations constitutes a serious interference with private life and correspondence.245 In this case the Court did not discuss how the insufficient precision of the law and the lack of certain safeguards affected the applicant, but merely stated that the applicant ‘did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society.’246 Whether the Huvig and Kruslin criteria apply depends on the type of secret surveillance method and whether information of a private nature is stored and processed. The Court has explained that acoustic or visual surveillance is generally a means through which privacy can be infringed because such surveillance can disclose individual conduct, opinions, or feelings. In contrast, global positioning system (‘GPS’) surveillance does not disclose such information and thus the Court has set less stringent requirements upon national law when this form of surveillance is concerned.247 Therefore, where the ECtHR judges an interference with a Convention right to be a serious threat to an individual right, it has assessed national law in an abstract manner and has set guidelines for national law. Clearly the Court has thus exercised a far-reaching review power over domestic law by reviewing the quality of the law itself and not merely the effects of this law in a particular case.248 Normally the Court will only review the effects of the interpretation and application of domestic law in a particular case. The foreseeability requirement is generally intended to secure the applicant’s rights and not to ensure a certain legal standard in domestic legal systems. The ECtHR has held: However, the “quality of the law” is not an end in itself and cannot be gauged in the abstract. It only becomes relevant if it is shown that the poor “quality of the law” has tangibly prejudiced the applicant’s substantive Convention rights. The Court finds no indication of any such prejudice in the present case.249

In contrast, where law confers discretionary powers, and especially in the field of secret surveillance, the ECtHR has developed guidelines to which domestic law must adhere.250 Following the Huvig and Kruslin judgments, the French government undertook to reform the laws to conform to the ECtHR decision. The guidelines

243

Kruslin v France, 24 April 1990, at 31; Huvig v France, 24 April 1990, at 30. Kruslin v France, 24 April 1990, at 32; Huvig v France, 24 April 1990, at 31. 245 Kruslin v France, 24 April 1990, at 33; Huvig v France, 24 April 1990, at 32. 246 Kruslin v France, 24 April 1990, at 36; Huvig v France, 24 April 1990, at 35. 247 Uzun v Germany, App no 35623/05, 2 September 2010, at 52, 63, 66 (not yet reported). 248 For a recent example of this form of review of domestic law, see Kennedy v United Kingdom, 18 May 2010, at 151–70. 249 Bordovskiy v Russia, App no 49491/99, 8 February 2005, at 49 (unreported). 250 G. Cohen-Jonathan (1993) at 425. 244

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that were developed by the Court in the judgments made the reform process easier, which shows how the review of the quality of the law can impact domestic law.251 To sum up, foreseeability is especially strictly applied where government is accorded discretionary powers. The ECtHR reviews foreseeability in a particularly strict manner in the area of the secret surveillance methods, but also with regard to the control of mail or the power of the police to stop and search. Relevant factors are whether the law sets limits on the period during which authorities may exercise discretionary powers; whether it sets out the reasons for which discretionary powers may be exercised; and whether there is a possibility to challenge or review the exercise of discretionary powers. In the area of secret surveillance of telecommunication, the Court has even developed guidelines to which national law must adhere and has reviewed domestic law in an abstract manner.

4.3 Judicial safeguards as a requirement of legality Legality requires some form of judicial safeguards.252 The ECtHR does not mention judicial safeguards as part of the requirements of legality in all cases. This requirement applies only in certain cases as a separate aspect of legality.253 The Court emphasizes its importance mostly in cases where national governmental authorities have wide discretionary powers. It has included judicial safeguards as a requirement of legality in relation to different Convention provisions: in the context of Articles 5(1),254 8,255 10,256 and Article 1 of Protocol 1.257 The requirement of effective judicial safeguards is derived from the rule of law. In the case of Klass v Germany258 (‘the Klass case’) the ECtHR reviewed whether German laws regarding secret surveillance methods breached the right to privacy of the applicant. One of the questions was whether Article 8 demands judicial control over the exercise of secret surveillance methods. In the context of this case, the ECtHR noted the following: The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.259

The Court does not always mention the existence of judicial safeguards as a requirement of legality. Still, the necessity of judicial safeguards can in some cases be derived

251 Elisabeth Lambert Abdelgawad and Anne Weber, ‘The Reception Process in France and Germany’ in Helen Keller and Alec Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford: Oxford University Press, 2008) at 127. 252 Luc Heuschling, État de Droit, Rechtsstaat, Rule of Law (Paris: Dalloz, 2002) at 310. 253 Capital Bank Ad v Bulgaria, App no 49429/99, ECHR 2005-XII, 24 November 2005, at 134. 254 Amuur v France, App no 19776/92, ECHR 1996-III, 25 June 1996, at 50–3. 255 Rotaru v Romania (GC), 4 May 2000, at 59. 256 Sanoma Uitgevers BV v Netherlands (GC), App no 38224/03, 14 September 2010, at 90–2 (not yet reported). 257 Capital Bank Ad v Bulgaria, 24 November 2005, at 134. 258 Klass and ors v Germany (Pl), App no 5029/71, Series A no 28, 6 September 1978. 259 Klass and ors v Germany (Pl), 6 September 1978, at 55.

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from the application of the principles of accessibility and foreseeability to the facts of the case. An example is the case of Amuur v France260 which concerned administrative detention. The applicants were asylum seekers who had been held in the transit zone of a French airport. In the context of this case, the ECtHR emphasized the demand that the national law on which a deprivation of liberty is based must have sufficient quality and be in accordance with the rule of law. Subsequently, the ECtHR noted that ordinary courts could not review the conditions under which the applicants were held, nor impose time limits for the deprivation of liberty. For these reasons the Court judged French law to be inadequate and found a breach of the right to liberty of the applicants.261 The existence of judicial safeguards was not mentioned as a specific requirement in this case, but flowed from the foreseeability of the law. Nor did the ECtHR require a specific form of judicial review, but it demanded the existence of a review procedure regarding the time limits and the conditions of the administrative detention. Because judicial safeguards must be understood as a requirement of legality, there is an overlap between legality and the right to a fair trial, as codified in Article 6 of the Convention, and the right to an effective remedy, as codified in Article 13. It has been described as problematic that the distinction between Articles 6 and 13 and legality in the context of the limitation clauses is lost by the manner in which the ECtHR interprets legality.262 Still, an overlap between legality and Articles 6 and 13 should not be seen as a difficulty. Article 6 will retain its primary role to ensure adequate legal procedures because it contains detailed requirements to which judicial proceedings must conform. Under Article 13, states are required to ensure the existence of an effective remedy in respect of all Convention rights. There is an overlap particularly in relation to this Article, but so long as the requirement of the existence of judicial safeguards is interpreted in line with the standard set by Article 13, this does not lead to inconsistency and thus does not appear to be problematic. Also, as was shown in Chapter 2, judicial review must also be understood as one of the requirements of legality, because judicial review ensures that government remains within the boundaries set by law.263 Therefore, understanding judicial safeguards as one of the requirements of legality is consistent with theoretical conceptions of legality. The right to liberty contains both judicial safeguards as well as a strict requirement that a deprivation of liberty must be lawful. With regard to the right to liberty, there is an overlap between the requirement that the law must be certain and the requirement that judicial safeguards exist. Paragraphs 3 and 4 of Article 5 are the principal paragraphs of this Article which concern judicial safeguards. Paragraph 1 of Article 5 mainly concerns the requirement that a deprivation of liberty must be lawful. Still, it also notes that a deprivation of liberty must be ‘in accordance with a procedure prescribed by law’. In the Winterwerp case, the ECtHR held that this term implies ‘fair and proper procedure, namely that any measure depriving a 260 261 262 263

Amuur v France, App no 19776/92, ECHR 1996-III, 25 June 1996. Amuur v France, at 50–3. J.G.C. Schokkenbroek (1996) at 182. See Chap 2, sect 3.3, especially in the text around n 212.

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person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary.’264 Regarding Article 5, it is not always easy to distinguish between judicial safeguards as an element of legality and judicial safeguards as protected by the Article itself. An example is the case of Baranowski v Poland265 in which no judicial decision authorized the applicant’s detention. Polish criminal legislation also lacked clear rules governing the situation of a detainee in court proceedings after the expiration of the term of detention fixed in the last detention order made at the investigation stage. Taking both aspects into account, the ECtHR established a breach of Article 5(1) because this infringed legal certainty and thus the rule of law.266 Another example is the case of Nevmerzhitsky v Ukraine.267 The ECtHR found here that national law was unclear with regard to the time allowed for the applicant to familiarize himself with the case file. The applicant was also expected to remain in custody for an indeterminate period of time—without any judicial authorization for his prolonged detention, as required by Article 5(3)—while he and/or other suspects were studying the case file. This created a statutory loophole and was found to be in contravention of the principle of legal certainty and the right to be brought promptly before a judge.268 Judicial safeguards in the context of legality do not set the same standard as the right to a fair trial guaranteed by Article 6. Legality only demands some form of adversarial proceedings before an independent authority or a court that is competent to address the legality of the measures interfering with Convention rights.269 The term adversarial proceedings, here, implies that proceedings must comply with the principle of equality of arms and also that it is possible to present arguments.270 The applicant must have had a reasonable opportunity to put forward his case.271 The proceedings must amount to a meaningful independent scrutiny of the original measure; a formalistic approach may be insufficient.272 Judicial safeguards must emanate from an impartial body that is independent of the executive and other interested parties.273 At least in the last resort, supervision over discretionary powers should be exercised by the judiciary. In the case of Rotaru v Romania274 the ECtHR determined that: interference by the executive authorities with an individual’s rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the 264

Winterwerp v Netherlands, 24 October 1979, at 45. Baranowski v Poland, App no 28358/95, ECHR 2000-III, 28 March 2000. 266 Baranowski v Poland, 28 March 2000, at 53–7. 267 Nevmerzhitsky v Ukraine, App no 54825/00, ECHR 2005-II, 5 April 2005. 268 Nevmerzhitsky v Ukraine, 5 April 2005, at 133. 269 CG and ors v Bulgaria, App no 1365/07, 24 April 2008, at 40 (not yet reported). See also Al-Nashif v Bulgaria, App no 50963/99, 20 June 2002, at 123 (unreported); Musa and ors v Bulgaria, App no 61259/00, 11 January 2007, at 60–2 (unreported); Bashir and ors v Bulgaria, App no 65028/01) 14 June 2007, at 40, 41 (unreported). 270 Hentrich v France, App no 13616/88, Series A no 296-A, 22 September 1994, at 42. 271 Capital Bank Ad v Bulgaria, 24 November 2005, at 134. 272 M and ors v Bulgaria, App no 41416/08, 26 July 2011, at 100–2 (unreported). 273 Sanoma Uitgevers BV v Netherlands (GC), 14 September 2010, at 90. 274 Rotaru v Romania (GC), App no 28341/95, ECHR 2000-V, 4 May 2000. 265

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last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure . . .275

Another example is the case of Gillow v United Kingdom276 where the applicants argued that the applicable laws (housing laws) were vague and left the authorities too much discretion. The Court did not agree, because the scope of the discretion and the manner of its exercise were sufficiently clear and subject to judicial control in an appeal procedure.277 Another example is the case of Kopp v Switzerland278 where the ECtHR found the supervision of secret surveillance methods by an official of the Post Office’s legal department—a member of the executive—and not by an independent judge, to be astonishing.279 When a judicial body is given an advisory role, this is insufficient to satisfy the requirement that judicial safeguards must exist. The ECtHR found in the case of Sanoma Uitgevers BV v Netherlands280 that decision-making powers must be vested in the body which provides the procedural safeguards.281 Also, the manner in which the decision is to be taken should be ‘governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established.’282 Legality also demands that legal rulings are executed.283 An example is the case of Hasan and Chaush v Bulgaria284 which concerned the freedom of religion. Here, the ECtHR noted that the rule of law requires state authorities to comply with judicial orders or decisions against them.285 The Court found that the interference by the state with the internal organization of the Muslim community and the applicants’ freedom of religion was not prescribed by law. The reason was that the law allowed unfettered discretion to the executive. Furthermore, no safeguards existed (such as an adversarial procedure before an independent body) to challenge the arbitrary exercise of the discretionary powers given to government.286 The refusal of the state authorities to comply with the judgments of the Supreme Court was an additional reason why the ECtHR found the interference to be unlawful. It considered this refusal to constitute a clearly unlawful act of particular gravity, and thus be contrary to the rule of law.287 275 Rotaru v Romania (GC), 4 May 2000, at 59; Volokhy v Ukraine, App no 23543/02, 2 November 2006, at 52 (unreported). 276 Gillow v United Kingdom, App no 9063/80, 24 November 1986. 277 Gillow v United Kingdom, 24 November 1986, at 49–52. 278 Kopp v Switzerland, App no 23224/94, ECHR 1998-II, 25 March 1998. 279 Kopp v Switzerland, 25 March 1998, at 74. 280 Sanoma Uitgevers BV v Netherlands (GC), App no 38224/03, 14 September 2010 (unreported). 281 Sanoma Uitgevers BV v Netherlands (GC), 14 September 2010, at 90–2. 282 Sanoma Uitgevers BV v Netherlands (GC), 14 September 2010, at 92. 283 Compare also the case of Assanidze, where the ECtHR noted that it is inconceivable in a state subject to the rule of law that a person should continue to be deprived of his liberty despite the existence of a court order for his release (Assanidze v Georgia, 8 April 2004, at 173). See also Mikhaniv v Ukraine, App no 75522/01, 6 November 2008, at 88 (unreported), where a similar issue arose. 284 Hasan and Chaush v Bulgaria (GC), App no 30985/96, ECHR 2000-XI, 26 October. 285 Hasan and Chaush v Bulgaria (GC), 26 October 2000, at 87. 286 Hasan and Chaush v Bulgaria (GC), 26 October 2000, at 85. 287 Hasan and Chaush v Bulgaria (GC), 26 October 2000, at 87.

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In some cases, the ECtHR has required judicial safeguards as part of the demand that an interference with a Convention right must be necessary in a democratic society. In the Klass case, the availability of the supervisory control of a judge over an interference with human rights was reviewed under the heading of necessity instead of legality.288 Of interest is that the EComHR had decided the Klass case in a different manner. The EComHR looked at the matter under the heading of legality, and noted in its report that the phrase ‘in accordance with the law’ must be understood to mean that the law should set up conditions and procedures for an interference.289 Also, in certain other later cases, the ECtHR has looked at the existence of judicial safeguards under the heading of proportionality.290 In contrast, in the Silver case, the ECtHR understood the existence of judicial safeguards to be a demand of Article 13, and did not address this matter under the review of the legality of an interference with the freedom of speech.291 Based on the Klass case, it has been argued that resort to the judiciary in the context of the Convention must be understood as an element of the necessity of an interference in a democratic society, but not of legality.292 Still, it does not appear that the approach of the ECtHR in the Klass case is consistent with the other cases that concern legality and the rule of law. In the Klass case, the ECtHR failed to distinguish legality and the requirement of necessity.293 The approach where judicial safeguards are understood as an element of legality is most consistent with the general approach in the case law to these concepts.294 In addition, to understand judicial safeguards as an element of legality is most consistent with the concept of rule of law in the context of the Convention, because judicial safeguards protected by Articles 5, 6, and 13 are also understood to be part of the rule of law.295 To conclude, in cases where government has wide discretionary powers, some form of adversarial proceedings that offer a reasonable opportunity for the applicant to present his or her case is required. Supervision must be exercised by an independent authority and, at least in the last resort, by the judiciary.

4.4 Non-retroactivity in criminal cases The ECtHR has noted that it will interpret legality in relation to the different articles of the Convention as much as possible in the same manner.296 Also, in relation to Article 7, legality requires domestic law to be accessible and foreseeable, where 288

Klass and ors v Germany (Pl), 6 September 1978, at 55–60. Gerhard Klass and ors v Federal Republic of Germany (Pl), App no 5029/71, Series B no 26, 9 March 1977, at 63. 290 Lambert v France App no 23618/94, ECHR 1998-V, 24 August 1998, at 31–40; Association Ekin v France, App no 39288/98, ECHR 2001-VIII, 17 July 2001, at 58, 61; Cetin and ors v Turkey, App no 40153/98, ECHR 2003-III, 13 February 2003, at 61, 66; Robathin v Austria, App no 30457/06, 3 July 2012, at 41–7 (unreported). 291 Silver and ors v United Kingdom, 25 March 1983, at 90. 292 J.G. Merrills (1993) at 133. 293 Johan van de Lanotte and Yves Haeck (2005) at 132–3. 294 J.G.C. Schokkenbroek (1996) at 182. 295 Further elaborated on in Chap 4. 296 Jochen Abr. Frowein and Wolfgang Peukert (1996) at 796. 289

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foreseeability encompasses non-retroactivity. Thus Article 7, which codifies non-retroactivity in the area of criminal law, is interpreted in line with the notion of accessibility and foreseeability because these requirements also apply to other articles of the Convention. Thus, the strictness of the review of non-retroactivity depends on the area of the law and the people that are addressed by the law. Below, two specific manifestations of how non-retroactivity is interpreted in light of foreseeability in the context of Article 7 will be discussed, which will demonstrate that non-retroactivity is less strict than one would expect of this important safeguard in the area of criminal law. In addition, the right not to be punished without a previously enacted law sets specific requirements to which national law must adhere. These additional specific requirements of foreseeability are in line with the importance of Article 7 to the rule of law. The ECtHR considers the principle of nulla poena to be one of the fundamental principles of the rule of law.297 The ECtHR has found that the right not to be punished without a previously enacted law demands that statutory limitation periods are taken into account. In the Kononov case, the ECtHR reviewed whether domestic law could be an adequate lawful basis for a conviction. It found that statutory limitation periods had expired definitively.298 The Court noted that limitation periods serve the purpose of ensuring legal certainty. To punish the applicant almost half a century after the expiry of the limitation period is contrary to the principle of foreseeability.299 In earlier judgments the ECtHR also noted that foreseeability demands that the punishment does not exceed the limits of the legal provision by which the act was made punishable, and that limitation periods must be observed because they ensure legal certainty.300 Also, in relation to Article 7, non-retroactivity has a specific meaning. The ECtHR has established that foreseeability includes the lex mitior principle. It noted in the case of Scoppola v Italy301 that a legal development had taken place towards a European and international consensus that a more lenient penalty should be applied even it was enacted after the commission of the offence.302 The Court referred to both the Charter of Fundamental Rights of the EU and to the Statute of the ICTY.303 Subsequently, the Strasbourg Court found that the lex mitior principle is consistent with the rule of law.304 Thus, in relation to criminal cases, domestic courts are required to apply newly enacted laws retroactively, if these laws are favourable to the accused.305

297

CR v United Kingdom, App no 20190/92, 22 November 1995, at 32. Kononov v Latvia, 24 July 2008, at 142. 299 Kononov v Latvia, 24 July 2008, at 145–6. 300 Coëme and ors v Belgium, App no 32492/96, ECHR 2000-VII, 22 June 2000, at 145–9; Achour v France (GC), App no 67335/01, ECHR 2006-IV, 29 March 2006, at 53. 301 Scoppola v Italy (No 2) (GC), App no 10249/03, 17 September 2009 (not yet reported). 302 Scoppola v Italy (No 2) (GC), 17 September 2009, at 106. 303 Scoppola v Italy (No 2) (GC), 17 September 2009, at 105. 304 Scoppola v Italy (No 2) (GC), 17 September 2009, at 108. 305 Scoppola v Italy (No 2) (GC), 17 September 2009, at 108. 298

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4.4.1 Non-retroactivity and judicial law-making Development of the law through judicial law-making necessarily brings with it difficult questions regarding the retrospective application of the law. The ECtHR applies a lenient standard of non-retroactivity because it has accepted the possibility of judicial law-making and criminalization on the basis of case law. The Court has found that rules of criminal liability may be clarified ‘through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.’306 Thus non-retroactivity is allowed so long as an individual could foresee his conviction. It seems especially problematic to apply non-retroactivity in a lenient manner in relation to criminal law, given the importance of Article 7 of the Convention in protecting individuals from serious interferences with their rights.307 Non-retroactivity must be applied in a very flexible manner in order to understand case law as a legal basis for a criminal conviction. Yet, the ECtHR has described Article 7 as fundamental to the rule of law. In national legal systems, the nulla poena principle is normally applied in a strict fashion; the ECtHR should thus instead apply Article 7 in a strict manner. A strict application of this Article seems to be demanded by the fact that a conviction forms one of the most serious interferences with the rights of individuals. Two cases provide an example of the lenient manner in which the ECtHR has interpreted the principle of non-retroactivity by accepting judicial law-making. In these cases the Court reviewed the acceptability of judicial law-making and criminalization on the basis of case law.308 The two cases of CR v United Kingdom and SW v United Kingdom309 (‘the CR and SW cases’) concerned an attempt of rape and actual rape in the context of a marriage. According to a rule of UK common law, ‘unlawfulness’ was one of the elements of the crime of ‘rape’, and rape could not be considered unlawful in the case of sexual intercourse between a man and his wife. The House of Lords held that this element of ‘unlawfulness’ in the definition of rape was redundant and had become ‘anachronistic and offensive’. In UK case law there had been a gradual development in which certain exceptions to unlawfulness had been developed.310 Furthermore, other developments of the law had taken place, such as the recognition of women’s equality and their autonomy over their bodies. Still, the element of unlawfulness had not been abolished. Thus the national judgments in the CR and SW cases constituted an overturn of the established case law in the UK that a man could not rape his wife.311 The ECtHR held that the criminalization of rape in the context of marriage ‘had become a reasonably foreseeable development of the law’, as there had been ‘a perceptible line of case 306

Kononov v Latvia (GC), 17 May 2010, at 185. Kenneth S. Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2009) at 359, 364–5. 308 Johan van de Lanotte and Yves Haeck (2004) at 676. 309 CR v United Kingdom, App no 20190/92, Series A no 335-C, 22 November 1995; SW v United Kingdom, App no 20166/92, Series A no 335-B, 22 November 1995. 310 CR v United Kingdom, 22 November 1995, at 38. 311 Clare Ovey and Robin C.A. White (2010) at 303. 307

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law development dismantling the immunity from a husband from prosecution for rape of his wife.’312 The Court also held that ‘the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilized concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.’ This excerpt, notably ‘the abandonment of the unacceptable idea’, indicates that the Court acknowledged the fact that the conviction went further than earlier cases and abolished the element of ‘unlawfulness’.313 Consequently, non-retroactivity is interpreted in these cases in a broad manner, because the ECtHR held that the development of new offences through judicial law-making is not contrary to Article 7.314 The Court accepted that judicial law-making is a ‘well entrenched’ aspect of the UK legal tradition. It discussed the legal developments and came to the conclusion that the convictions of the applicants were in line with progressive development whereby the immunity of a husband for rape inside a marital context had been gradually abandoned.315 The Court also brought forward a more substantive argument, whereby it recognized that the immunity of the husband from rape of his wife is unacceptable.316 It did not separate this second argument from the legality argument, but instead gave this as an extra reason why the applicant could have foreseen his conviction. The ECtHR also noted that the criminalization of rape in the context of marriage is consistent with other legal norms, notably with the equality of women. This was an additional reason for the Court to find that the applicant could have foreseen his conviction. All in all, the CR and SW cases show that foreseeability is a requirement that is relatively open towards substantive arguments. Non-retroactivity is interpreted in line with foreseeability and, consequently, is also flexible and open to substantive arguments.

4.4.2 Transitional justice and non-retroactivity Foreseeability has a different meaning when there has been a succession or change of a political regime in the national territory. The ECtHR has found that foreseeability allows courts to interpret the laws of a former regime retroactively in accordance with the legal standards of a new regime, in cases where the new legal regime conforms to the rule of law and the former regime did not. Thus foreseeability does not

312 CR v United Kingdom, 22 November 1995, at 41; SW v United Kingdom, 22 November 1995, at 43. 313 CR v United Kingdom, 22 November 1995, at 42; SW v United Kingdom, 22 November 1995, at 44; Clare Ovey and Robin C.A. White (2010) at 303. 314 Loukis G. Loucaides, Essays on the Developing Law of Human Rights (Dordrecht:  Martinus Nijhoff Publishers, 1995) at 45. 315 CR v United Kingdom, 22 November 1995, at 41–2. 316 CR v United Kingdom, 22 November 1995, at 42; SW v United Kingdom, 22 November 1995, at 44.

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demand that states adhere to the letter of the law of the former regime.317 The ECtHR has stated: it is entirely legitimate for a State governed by the rule of law to bring criminal proceedings against persons who have committed crimes under a former regime; similarly, the courts of such a State, having taken the place of those which existed previously, cannot be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law . . . .318

The case of K-HW v Germany319 illustrates how transitional justice influences foreseeability. This case dealt with the conflict between two different elements of the rule of law: the principle of lawfulness (no crime, no punishment without law) and substantive justice. The applicant was a former border guard who was convicted of the homicide of an illegal border crosser. This act was in clear violation of the right to life. However, the guard had acted in conformity with established practice and could never have foreseen a conviction under the former border-policing regime, which demanded that illegal border crossers were annihilated. Even so, strict adherence to lawfulness would have led to injustice in this case. The border-policing regime was in conflict with the German Democratic Republic’s constitution, of which the right to life formed part, and also with international human rights norms. The ECtHR focused mainly on the foresight element of legality to determine whether there had been a breach of Article 7. It found that domestic as well as international law was sufficiently clear, and thus the conviction was foreseeable. The Court judged that the border-policing regime could not be considered as law because it was inconsistent with the legislation on which it was based and flagrantly infringed human rights norms.320 Consequently, the applicant should have foreseen his conviction even though at the time he had been praised for his actions. The reason for the broad interpretation of foreseeability is the substantive argument that the border regime was in flagrant breach of the right to life. However, the Court took this substantive argument into account under the heading of foreseeability. It focused on the consistency of the law.321 Consequently, it interpreted foreseeability in this case in a very broad manner.322 Also, the cases show that foreseeability is open to substantive arguments. The judgment would have been clearer had the ECtHR taken the same approach as the Federal Constitutional Court of Germany (‘FCC’). This court came to the same finding, but on a different ground. The FCC clarified that the application of non-retroactivity in this case conflicted with the broader demands of the rule of 317 Kononov v Latvia, 24 July 2008, at 114; Streletz, Kessler, and Krenz v Germany (GC), App no 34044/96, ECHR 2001-II, 22 March 2001, at 81; K-HW v Germany (GC), 22 March 2001, at 84. 318 Kononov v Latvia, 24 July 2008, at 114. 319 K-HW v Germany (GC), App no 37201/97, ECHR 2001-II, 22 March 2001. 320 K-HW v Germany (GC), 22 March 2001, at 90–1, 105, 113. 321 For a contrary view, see Christoph Grabenwarter, ‘Justiz- und Verfahrensgrundrechte’ in Dirk Ehlers and Ulrich Becker (eds), Europäische Grundrechte und Grundfreiheiten (Berlin:  De Gruyter Recht, 2005) at 172. 322 Johan van de Lanotte and Yves Haeck (2004) at 676.

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law, because the former legal regime did not respect democracy or protect fundamental rights.323 In a later case, the ECtHR explained that its broad interpretation of foreseeability in the border guard cases was justified because of the change in regime. The Court found that the state cannot be criticized for ‘applying and interpreting the legal provisions in force at the material time in the light of the principles of a State subject to the rule of law . . . .’324 Thus the ECtHR appears to point out that cases concerned with transitional justice do not set a general standard of foreseeability.

4.5 Quality requirements of legality concerning the right to liberty The case law on Article 5 addresses three main issues: first, the quality of the law, which requires strict adherence to the rule of law; secondly, the exhaustive nature of the types of detention that are allowed and the necessity to interpret these strictly; and thirdly, the need for prompt judicial control under paragraphs 3 and 4 of Article 5.325 These two paragraphs of Article 5 thus concern judicial safeguards, and will be discussed in Chapter 4 on that topic.326 The first two issues will be explored in more depth here. In relation to Article 5, legality requires law to be accessible and foreseeable.327 As noted, judicial safeguards are required for law to be foreseeable under Article 5(1).328 The ECtHR focuses in many cases on the question of whether national law is arbitrarily applied.329 The Court has held that a national law which authorizes a deprivation of liberty must be ‘sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness’.330 The Court has found that the rule of law and thus the quality requirements of legality must be scrupulously adhered to in the context of Article 5.331 In addition, the ECtHR has connected the exhaustive list of the types of detention allowed under Article 5 with the rule of law. A deprivation of liberty must fall within one of the categories listed in the article itself, which may not be interpreted extensively. In the case of Engel v Netherlands332 the Court found that a wide interpretation of the categories listed in the Article would be incompatible with the rule of law.333 The ECtHR will also independently establish the category in which a deprivation of liberty fits. Moreover, individuals may not be accorded fewer safeguards by the categorization of their deprivation of liberty as administrative instead of criminal, 323 324 325 326 327 328 329 330 331 332 333

K-HW v Germany (GC), 22 March 2001, at 20. Kononov v Latvia (GC), 17 May 2010, at 241. Medvedyev and ors v France (GC), App no 3394/03, 29 March 2010, at 117 (not yet reported). See Chap 4, sect 3.2. Khudoyorov v Russia, 8 November 2005, at 125; Baranowski v Poland, 28 March 2000, 50–2. See Chap 3, sect 4.3. Stafford v United Kingdom (GC), 28 May 2002, at 63; Nakhmanovich v Russia, 2 March 2006. Ismoilov and ors v Russia, 24 April 2008, at 137. Medvedyev and ors v France (GC), 29 March 2010, at 117. Engel and ors v Netherlands (Pl) App no 5100/71, Series A no 22, 8 June 1976. Engel and ors v Netherlands, 8 June 1976, at 69.

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when the deprivation itself should be seen as criminal. The Court has found it to be incompatible with the rule of law when authorities do not grant individuals the procedural safeguards that they should have been accorded had their deprivation of liberty been categorized in the right manner.334 In the case law, the ECtHR has developed additional requirements to which national law must adhere in the context of a deprivation of liberty under Article 5(1). First, it has determined that there should be a sufficient causal connection between the conviction and the deprivation of liberty.335 Secondly, there must not be an element of bad faith or deception on the part of the authorities. Thirdly, ‘the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § (1)’; ‘[t]here must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.’336 In consequence, the ECtHR has in relation to Article 5(1) derived a number of detailed requirements from the quality of law requirement that are closely connected to the aim of the Convention right itself. Moreover, the ECtHR has laid down different specific rules regarding the quality of the law in relation to the different subparagraphs of Article 5(1). As a consequence, the requirements that it has set to the quality of the law vary depending on the type of detention involved.337 In the context of Article 5(1) subparagraphs (b), (c), (d), and (e), lawfulness also requires an assessment of whether detention is necessary to achieve the aim of the relevant subparagraph. A detention is only necessary when less severe measures are insufficient to safeguard the individual or the public interest.338 Also, when a detention is to secure the fulfilment of an obligation provided by law (subparagraph (b)), a balance must be struck between the right to liberty— taking into account the duration of the detention—and the importance of securing the fulfilment of the obligation.339 In relation to subparagraph (c), the judicial authorities must state in their decisions the ground for a prolonged detention.340 The ECtHR has also set time limits on the speed with which a defective or expired detention order is replaced, in relation to subparagraph (e).341 It has determined that there are limits to the interval between the expiry of a detention order and its renewal.342 In addition, the Court has held that a mental disorder must be established on the basis of objective medical expertise whereby the authorities had at their disposal sufficient evidence to justify the detention.343 With regard to subparagraph (f ), the ECtHR has determined that the detention may not continue for 334

Nechiporuk and Yonkalo v Ukraine, App no 42310/04, 21 April 2011, at 178 (unreported). Stafford v United Kingdom (GC), 28 May 2002, at 64. 336 Saadi v United Kingdom (GC), App no 13229/03, 29 January 2008, at 69 (not yet reported). 337 Mooren v Germany (GC), 9 July 2009, at 77. 338 Ladent v Poland, App no 11036/03, 18 March 2008, 54–5 (not yet reported); Saadi v United Kingdom (GC), 29 January 2008, at 70. 339 Saadi v United Kingdom (GC), 29 January 2008, at 70. 340 Mooren v Germany (GC), 9 July 2009, at 79. 341 Mooren v Germany (GC), 9 July 2009, at 80. 342 Mooren v Germany (GC), 9 July 2009, at 81. 343 Plesó v Hungary, App no 41242/08, 2 October 2012, at 59, 60 (not yet reported). 335

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an unreasonable length of time. As long as deportation proceedings are in progress and prosecuted with due diligence, a detention may be lawful.344

4.6 A limited role of generality in reviewing the quality of the law In theoretical accounts of legality, described in Chapter 2, generality is understood as one of the requirements of legality. Generality is a basic characteristic of law. Law consists of rules that can direct the behaviour of people, and rules must be general to fulfil this function. If law has too many differentiations and categories, or if these are very narrowly defined, it is difficult to understand what law demands, and law instead becomes an instrument of managerial direction. On the other hand, the expansion of governmental tasks has led to an increase in specific regulations.345 Generality is an element of the rule of law concept in the context of the Convention, given that the ECtHR has noted that the prohibition of discrimination and equality before the law are elements of the rule of law. In Refah Partisi (the Welfare Party) v Turkey 346 (‘the Welfare Party case’), the Court discussed the requirement that law must be equally applied. ‘The rule of law means that all human beings are equal before the law, in their rights as in their duties.’ Legislation must take account of differences, but they must have an ‘objective and reasonable justification, pursue a legitimate aim and [be] proportionate and consistent with the principles normally upheld in democratic societies.’347 Equality before the law forms the procedural counterpart of the generality requirement, because law can only be equally applied if it is general, so as to apply in more cases.348 In that sense the ECtHR understands generality of the law to be an important aspect of the rule of law. In the Welfare Party case, the ECtHR also connected the rule of law to Article 14, which prohibits discrimination in the protection of Convention rights.349 The prohibition of discrimination is the negative formulation of the principle of equality before the law.350 This can also be seen in the Preamble of Protocol 12 of the Convention, which clarifies that non-discrimination is aimed at promoting equality before the law and equal protection of the law.351 Moreover, the principle of non-discrimination 344 Saadi v United Kingdom (GC), 29 January 2008, at 72; A and ors v United Kingdom, 19 February 2009, at 164; Abdolkhani and Karimnia v Turkey, App no 30471/08, 22 September 2009, at 129 (unreported); Ismoilov and ors v Russia, 24 April 2008, at 135. 345 See also Chap 2, sect 3.2, n 198 (and text around this footnote). 346 Refah Partisi (the Welfare Party) and ors v Turkey, App no 41340/98, 31 July 2001. 347 Refah Partisi (the Welfare Party) and ors v Turkey, 31 July 2001. 348 See further Chap 2, sect 3.3, in the text around n 222. 349 Refah Partisi (the Welfare Party) and ors v Turkey, 31 July 2001, at 43, 70. 350 Karl Josef Partsch, ‘Discrimination’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff Publishers, 1993) at 575. 351 Although the Universal Declaration and the International Covenant contain general articles that demand equality before the law, Article 14 of the Convention does not, because states were hesitant to include such a general rule which could endanger the system of restrictive enumeration of human rights. At least with Article 1 of Protocol 12, the Convention includes a prohibition of discrimination of a more general scope than Article 14 (Karl Josef Partsch, ‘Fundamental Principles of Human Rights:  Self-Determination, Equality and Non-Discrimination’ in Karel Vasak and Philip Alston (eds), The International Dimensions of Human Rights (Westport: Greenwood Press, 1982) at 61–86).

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is more clear, because it formulates which criteria cannot be used to distinguish between people.352 At the same time, it must be noted that the view on the generality of law has changed, because government increasingly intervenes in society and enacts detailed rules.353 This change is reflected in the case law, given that foreseeability mainly emphasizes the precision and clarity of the law. Generality can be understood as one of the requirements of legality to the extent that it is implied in the foreseeability requirement.354 In the case law the ECtHR refers to generality in the context of legality.355 The Court has found that foreseeability requires a balance to be struck between clarity and precision, on the one hand, and generality, on the other.356 To conclude, we can say that the Court attaches value to the generality of the law and understands it as an element of the rule of law. The ECtHR has related the prohibition of discrimination—the counterpart of generality—to the rule of law. Generality can also be understood as a requirement of legality, to the extent that foreseeability implies that law is general. Foreseeability demands generality, but is mostly focused on the precision of the law.

4.7 Analysis In summary, legality demands that domestic law conforms to the Convention quality standard of accessibility and foreseeability. Foreseeability, on the one hand, requires law to be general and on the other hand, demands that law is precise. Foreseeability also requires law to be clear, consistent, and non-retroactive. In addition, where domestic law grants wide discretionary powers to national authorities, legality also demands the existence of judicial safeguards. In the context of Articles 5 and 7, legality includes additional criteria that are specific to these two articles. With respect to Article 5, these criteria are derived from the text of the Article itself. Other writers have subdivided the requirements of legality differently, but they all include the demands of accessibility and foreseeability. A  number of writers understand these to be requirements of legality and of the rule of law.357 Others divide lawfulness into foreseeability, accessibility, the existence of a domestic legal basis, and the rule of law.358 The rule of law is then understood as a requirement

352 Kark Josef Partsch (1982) at 69; Marianne Gijzen, ‘Thema’s in het Gelijkebehandelingsrecht: Een Veellagige Rechtsvergelijkende Analyse van Europees, Engels en Nederlands Recht’ (2007) N.J.C.M. Bulletin 32(6) at 809. 353 Partly concurring and partly dissenting opinion of Judge Zupancic in Chassagnou and ors v France (GC), App no 25088/94, ECHR 1999-III, 29 April 1999; Regina Weiss (1996) at 108–12. 354 Gerard van der Schyff, Limitation of Rights, a Study of the European Convention and the South African Bill of Rights (Nijmegen:  Wolf Legal Publishers, 2005) at 177–8. For a different perspective see Regina Weiss (1996) at 108–12. 355 Cantoni v France (GC), 15 November 1996, at 31. 356 Cantoni v France (GC), 15 November 1996, at 31. 357 Frédéric Sudre et al (2003) at 47–51; Jacques Chevallier (2003) at 107; Anika Logemann (2004) at 186–8; G. Cohen-Jonathan (1993) at 420–2. 358 Jukka Viljanen (2003) at 185–7. See also Nihal Jayawickrama (2002) at 190–1.

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that the law must ensure adequate safeguards against abuses and delimit discretionary powers of authorities.359 Another subdivision that is sometimes made in the criteria of legality is accessibility and foreseeability, whereby the rule of law is an element of foreseeability. Staal makes this division.360 Lanotte and Haeck divide the demand of lawfulness into three different requirements:  first, the basis in domestic law; secondly, the accessibility requirement; and finally, the foreseeability requirement.361 In another part of their book, however, the requirement of non-arbitrariness is mentioned as a separate requirement of lawfulness,362 and the rule of law as an element of the foreseeability requirement.363 Ovey and White describe lawfulness as foreseeability, accessibility, the existence of a domestic legal basis and do not discuss rule of law at all.364 Lastly, Grote includes the democratic heritage of the law as an additional requirement of legality.365 Accordingly, most differences of opinion exist with regard to the question of whether or not the existence of safeguards against abuse and protection against arbitrariness is a separate requirement. This is probably the result of the hazy line in the case law where the existence of judicial safeguards is concerned. As they are not required in all cases, it is easy to overlook them. As stated above, the ECtHR has often held that it will interpret legality in relation to the different articles of the Convention as far as possible in the same manner.366 Even so, the review of the case law has shown that there are differences in the strictness with which the ECtHR scrutinizes national law.367 First, in some cases the Court only reviews the quality of national law because this issue is raised by the applicants.368 By doing so, it seems to limit the review of lawfulness to the arguments that are made by the applicants.369 Thus the ECtHR appears to take insufficient account of the primary importance of legality.370 However, legality is of primary importance for the protection of all Convention rights. Convention rights are mainly ensured through national laws and national institutions, and the ECtHR

359

P. van Dijk et al (2006) at 336–8; Jukka Viljanen (2003) at 185–9. Claudia Johanna Staal (1995) at 60–2. 361 Johan van de Lanotte and Yves Haeck (2005) at 125–34. 362 Johan van de Lanotte and Yves Haeck (2005) at 191. 363 Johan van de Lanotte and Yves Haeck (2005) at 131–2. 364 Clare Ovey and Robin C.A. White (2010) at 312–15. 365 Rainer Grote and Konstantin Meljnik, EMRK/GG:  Konkordanzkommentar Zum Europäischen Und Deutschen Grundrechtsschutz (Tübingen:  Mohr Siebeck, 2006) at 355. See further Chap 6, sect 3.1. 366 Jochen Abr. Frowein and Wolfgang Peukert (1996) at 796; Sunday Times v United Kingdom (Pl), 26 April 1979, at 48. 367 J.G.C. Schokkenbroek (1996) at 182; Th.L. Bellekom, ‘Het Hof Voor de Rechten van de Mens en de Beperkingsclausules van het EVRM’ in Aalt Willem Heringa and Jeroen Gerardus Cornelis Schokkenbroek (eds), 40 Jaar Europees Verdrag Voor de Rechten van de Mens:  Opstellen over de Ontwikkeling van het EVRM in Straatsburg en in Nederland 1950–1990 (Leiden:  Stichting NJCM-Boekerij, 1990) at 73. 368 Roemen and Schmit v Luxembourg, 25 February 2003, at 49; Johan van de Lanotte and Yves Haeck (2004) at 969. 369 Young, James, and Webster v United Kingdom (Pl), 13 August 1981, at 60. 370 Bellekom even argues that testing on the basis of the legality principle is to be preferred to the ‘necessary in a democratic society’ principle, because with regard to legality, the margin of appreciation does not apply. Th.L. Bellekom (1990) at 73. 360

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can only deal with a limited amount of cases.371 Consequently, it is essential that the Court pays sufficient attention to the quality of domestic laws and points out their deficiencies. By means of this review, national standards of human rights protection can be raised.372 Thus, where it is apparent that a national law is lacking in quality, the Court should not refrain from pointing out its deficiencies on the basis that the applicants have not raised that argument. Secondly, the strictness with which the ECtHR reviews legality depends on the particular circumstances of particular cases. The requirements of legality have a degree of openness which allows the Court to take into account these circumstances. Moreover, the material view of law can lead to a lenient review of foreseeability, and this allows the Court to take substantive arguments into account. Also, the strictness of the legality test depends on the subject matter and whether professionals are involved.373 The requirement of foreseeability is more easily satisfied when a consistent line of national interpretative case law exists. As a consequence, foreseeability places the domestic judge in a more authoritative position vis-à-vis the other powers of government.374 A special case is formed by legality in the context of transitional justice, whereby strict adherence to the laws of a former regime is not demanded, especially if that regime did not adhere to rule of law standards. Thirdly, the review of the legality of interferences with the right to private life is stricter than that of other rights, especially in cases of secret surveillance.375 With regard to secret surveillance methods, in particular, the ECtHR has developed general guidelines for national law.376 The review of the case law has shown that, particularly when the rights to privacy and freedom are concerned, the Court has set detailed guidelines to which domestic law must adhere, and which will lead it to review domestic law in an abstract and strict manner. The reason for the strict review in cases that concern interferences with the right to privacy is the severity of such interferences.377 A strict review of legality in cases that concern secret surveillance methods is also necessary because these interferences with the right to privacy are undertaken secretly and proactively.378 Fourthly, in the context of both Articles 5 and 7, legality sets detailed requirements for national law. In relation to Article 7, the ECtHR had determined that statutory limitation periods must be adhered to, and also that states must uphold the principle of lex mitior. In the context of Article 5, legality requires that a deprivation of liberty falls within one of the categories listed in the Article and, in relation to these different 371 Steven Greer, The European Convention on Human Rights, Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006) at 158. 372 The ECtHR has held that ‘[a]lthough the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States.’ Karner v Austria, App no 40016/98, ECHR 2003-IX, 24 July 2003, at 26. 373 374 J.G.C. Schokkenbroek (1996) at 182. Frédéric Sudre et al (2003) at 51. 375 P. van Dijk et al (2006) at 338; Louis-Edmond Pettiiti, La Convention européenne des Droits de l’Homme: Commentaire article par article (Paris: Economica, 1995) at 335. 376 377 Jukka Viljanen (2003) at 205. Anika Logemann (2004) at 188. 378 J.G.C. Schokkenbroek (1996) at 183.

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categories, the Court has developed detailed requirements that determine when a deprivation of liberty is arbitrary. Thus legality sets additional specific requirements that are closely connected to the text of the provision. Thus, on the one hand, legality is a flexible and lenient standard. One of the reasons is that the ECtHR applies a material concept of law, which is necessary given its subsidiary role. The review of the quality of the law by the ECtHR is subjected to a balance between deference to national authorities and effective review.379 Whether the Court independently and strictly reviews domestic law not only depends on the question of whether national law was clearly applied arbitrarily,380 but also on the subject area. On the other hand, the requirement of foreseeability in particular allows the ECtHR to review, and thereby interpret, domestic law independently from national authorities, and to set strict guidelines to which domestic law must adhere. Consequently, through the review of the quality of domestic law, the ECtHR has, in certain cases, gone beyond its normal review of the effects of the interpretation and application of domestic law in a particular case. In these cases the Court has exercised a far-reaching power of review over domestic law.381 Also, in relation to Articles 5 and 7, the review of legality is more strict, because legality sets specific requirements to which national law must adhere. It has been said that the margin of appreciation doctrine demands that the ECtHR take into account particularities of the national legal systems, and thus leads to divergences in the strictness of the review of legality.382 Still, it cannot be said that the margin of appreciation doctrine applies to the ECtHR legality test.383 The margin of appreciation doctrine does not seem the right term to describe the differences in the assessment of legality. National authorities are not involved in policy choices regarding legality.384 It is recommended that the ECtHR should apply one coherent standard of legality.385 First, in the French version of the Convention, the terminology of the different limitation clauses is the same. Most importantly, a systematic approach to legality can best ensure a coherent interpretation and application of the Convention. This implies that the requirements of legality would be the same with regard to all its articles. The existence of judicial safeguards should, notably, be an element of legality 379 An example is the Hentrich case, where the ECtHR held that ‘[w]hile the system of the right of pre-emption does not lend itself to criticism as an attribute of the State’s sovereignty, the same is not true where the exercise of it is discretionary and at the same time the procedure is not fair. In the instant case the pre-emption operated arbitrarily and selectively and was scarcely foreseeable, and it was not attended by the basic procedural safeguards.’ Hentrich v France, 22 September 1994, at 42. 380 Jochen Abr. Frowein and Wolfgang Peukert (1996) at 86, 332. 381 The abstract review of domestic law is not restricted to the review of legality. The ECtHR has also assessed national law in an abstract manner under the heading of proportionality. An example is the Dudgeon case, where the Court reviewed the laws on homosexuality that existed in Northern Ireland. The applicant was directly affected by the existence of this law (Dudgeon v United Kingdom (Pl), App no 7525/76, Series A no 45, 22 October 1981, at 41); Jeroen Schokkenbroek, ‘Judicial Review by the European Court of Human Rights:  Constitutionalism at European Level’ in Rob Bakker, Aalt Willem Heringa, and Frits Stroink (eds), Judicial Control, Comparative Essays on Judicial Review (Antwerp: Maklu, 1995) at 157. 382 383 Anika Logemann (2004) at 178. J.G.C. Schokkenbroek (1996) at 180. 384 385 T. Barkhuysen (2004) at 42–3. S. Trechsel (1993) at 292.

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in relation to all provisions of the Convention. On the other hand, the strictness with which these requirements of legality are applied should differ. The different rights of the Convention call for a divergence in the review of legality. For instance, where the right not to be punished without a previously enacted law is concerned, the standard of legality should be strictly applied, especially compared to legality in the context of Articles 8 to11. The reason for this is the severity of the impact of criminal law upon the individual.386 In consequence, it seems problematic that, especially in certain cases that concern the right not to be punished without a previously enacted law, the ECtHR has applied the requirement of foreseeability in a lenient manner. These may be exceptional cases, due to the broader issues of justice that played a role, but even so, the Court could give more motivation as to why it applies a less strict standard of legality in certain cases.

5 Differentiating Legality from Proportionality In principle, legality is the primary test applied by the ECtHR, and it has ruled that in cases where an interference is unlawful, it is unnecessary to look at the other requirements.387 The Court has also determined that an examination of the legitimate aim and the necessity of an interference can only take place if the law is sufficiently clearly defined.388 Still, in some cases the ECtHR does not differentiate between the requirements of lawfulness, legitimate aim, and necessity in a democratic society.389 In some cases it has stated that it will review the interference ‘in light of the case as a whole’.390 Also, in certain cases the Court determines a case on the basis of proportionality, although the legality is problematic.391 Thus in these cases the manner in which the ECtHR reviews the legitimacy of interferences takes insufficient account of the primary importance of legality.392 Proportionality is an important tool developed by the ECtHR to balance the interests of the community with the interests of the individual.393 Proportionality 386 Joint dissenting opinion of Judges Bonello, Strážnická, Bîrsan, Jungwiert, and Del Tufo in Maestri v Italy (GC), 17 February 2004, at 7–9; Maestri v Italy (GC), 17 February 2004, at 33. 387 Belvedere Alberghiera SRL v Italy, App no 31524/96, ECHR 2000-VI, 30 May 2000, at 55; Baklanov v Russia, App no 68443/01, 9 June 2005, at 46 (unreported); Carbonara and Ventura v Italy, 30 May 2000, at 62; Malone v United Kingdom (Pl), 2 August 1984, at 82; Kopp v Switzerland, 25 March 1998, at 75–6. 388 Hasan and Chaush v Bulgaria (GC), 26 October 2000, at 88. 389 Jukka Viljanen (2003) at 174–8; Johan van de Lanotte and Yves Haeck (2005) at 134. 390 Sunday Times v United Kingdom (Pl), 26 April 1979, at 60. 391 Hirst v United Kingdom (GC), 6 October 2005, at 76–82; Stere and ors v Romania, App no 25632/02, 23 February 2006, at 53 (unreported); Zdanoka v Latvia (GC), App no 58278/00, ECHR 2006-IV, 16 March 2006, at 132; Broniowski v Poland (GC), 22 June 2004, at 154, 184–5; Buzescu v Romania, App no 61302/00, 24 May 2005, at 92, 98 (unreported). 392 In some cases, the ECtHR possibly prefers to decide a case under the heading of legality over proportionality because the second requirement can be more difficult to assess. According to Schokkenbroek, the Open Door Dublin Well Women case is a case in point (J.G.C. Schokkenbroek (1996) at 149). 393 David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 10, 358–9.

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is part of the wider test of whether a fair balance has been struck between the different interests.394 The proportionality test is not a technical question of whether the interference was necessary to reach the pursued aims, but rather it allows the Court to come to its own judgment as to whether a fair balance between the aim and the interference existed.395 When the Court decides whether an interference with a Convention right is proportionate to the legitimate aim pursued, it generally acknowledges that states have a margin of appreciation.396 In contrast, legality does not include a balance between the interests of the community and the interests of the individual. Instead, the quality requirements of legality are concerned with the form that domestic law should have. Thus, legality provides a formal guideline for the manner in which human rights may be restricted. Accordingly, legality and proportionality are different concepts that should not be reviewed together. When questions of legality are taken into account under the heading of proportionality, an incoherent structure of review can result. In cases where the ECtHR reviews questions of legality under the heading of proportionality, conceptual clarity can be lost.397 Also, the differences between proportionality and legality are undermined. An example is the Steel case, where the Court decided that an interference with the freedom of expression was not proportionate, based on the fact that it was unlawful.398 Another example is the case of Stere v Romania.399 The applicant argued that the expropriation was unlawful. The ECtHR found that national authorities are primarily responsible for interpreting domestic law, and because the Supreme Court had already found the expropriation to be lawful, it also judged the interference to be lawful. Nonetheless, the ECtHR found the interference by the government with the applicant’s property to be in breach of the principles of legal certainty and the res judicata rule, because it set aside an earlier final judgment of a court.400 However, the Court took this unlawful nature of the interference into account when reviewing whether the interference satisfied the fair balance test. But it was not the balancing of the interests of the individual and the community that was at stake in this case, but a stricture on the manner in which Romanian law was applied. Thus it would have been better to judge this case under the heading of legality. In the case of Kennedy v United Kingdom401 the ECtHR in fact explicitly argued that it should take into account proportionality when reviewing legality in the assessment of legislation.402 It is difficult to follow the Court’s argumentation. 394

Johan van de Lanotte and Yves Haeck (2005) at 144. J.G.C. Schokkenbroek (1996) at 197–201. 396 Clare Ovey and Robin C.A. White (2010) at 333; Johan van de Lanotte and Yves Haeck (2005) at 145. 397 See for example the following cases:  Sildedzis v Poland, App no 45214/99, 24 May 2005, at 48–52 (unreported); Georgian Labour Party v Georgia, App no 9103/04, 8 July 2008, at 132, 140–1 (not yet reported). 398 Steel and ors v United Kingdom, 23 September 1998, at 110. 399 Stere and ors v Romania, App no 25632/02, 23 February 2006. 400 Stere and ors v Romania, 23 February 2006, at 53. 401 Kennedy v United Kingdom, App no 26839/05, 18 May 2010 (unreported). 402 Kennedy v United Kingdom, 18 May 2010, at 155. 395

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In many cases the ECtHR has assessed the quality of legislation beyond the scope of the facts of the case without reviewing the proportionality. Also, it is unclear why a distinction needs to be made between the review of the quality of the law in relation to a specific interference compared to the review of the quality of legislation. In other cases there appears to be a special need to take into account the interests of society. This necessity seems to be a reason for the ECtHR to review a case under the heading of proportionality rather than legality. Especially in cases that deal with the transition of the legal system of states from communism to market economies, a pure focus on legality would be too narrow. A strict adherence to legality in these cases would not enable the Court to take into account the fact that the law itself is in transition. A relevant example is Broniowski v Poland 403 (‘the Broniowski case’), which dealt with expropriation. The applicant had to bear much uncertainty and inconsistency of the law.404 The Polish government strived to end past injustices and compensate for them, but did not have sufficient resources to compensate all in full. The ECtHR stated quite clearly that the practices of the Polish government were contrary to the rule of law; they undermined the effective exercise of the right to property and the confidence of citizens in the state.405 Although the ECtHR accepted that there were problems with the legality of the Polish laws and actions, the Court decided the case on the basis of proportionality,406 taking into account the problems attached to the legality of the laws and actions under the heading of proportionality.407 Because the ECtHR decided the case on the basis of proportionality, it was able to take into account the legitimate aim of the government to reform the political and economic system.408 A similar case is Velikovi v Bulgaria409 (‘the Velikovi case’) which also concerned a period of social and legal transition. The Court found that it could not disregard the difficulties connected to the social and legal transition in Bulgaria and thus would not adopt a purist approach to legal predictability.410 The Court stated that issues concerning ‘the quality of the relevant law are intertwined and undissociable from the question whether or not the interference with their property rights had a legitimate aim and was necessary in a democratic society for the achievement of such an aim.’411 The cases of Broniowski and Velikovi concern transitional justice, and thus a comparison can be made with the transitional justice cases in the area of criminal law. In criminal cases, transitional justice leads to a wider and more flexible interpretation of foreseeability, and not to a weighing of proportionality. In the area of criminal law, weighing the proportionality of a retroactive imposition of criminal

403 404 405 406 407 408 409 410 411

Broniowski v Poland (GC), App no 31443/96, ECHR 2004-V, 22 June 2004. Broniowski v Poland (GC), 22 June 2004, at 185. Broniowski v Poland (GC), 22 June 2004, at 184. Broniowski v Poland (GC), 22 June 2004, at 187. Broniowski v Poland (GC), 22 June 2004, at 154, 184. Broniowski v Poland (GC), 22 June 2004, at 162. Velikovi and ors v Bulgaria, App no 43278/98, 15 March 2007 (unreported). Velikovi and ors v Bulgaria, 15 March 2007, at 162–7. Velikovi and ors v Bulgaria, 15 March 2007, at 167.

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sanctions would also be out of place. The wider interests of society—be they ever so important—should not be decisive for the question of whether an individual should or should not have foreseen that he would be punished for his acts. In contrast, it was justifiable in the Broniowski and Velikovi cases to take the interests of society into account, because these cases concerned expropriation and restitution of property in the face of limited resources. In such cases a decision needs to be made as to how the financial burden of past injustices should be shared. In addition, there are cases where it seems justifiable to take the uncertainty of domestic law into account under the heading of the fair balance of the interference, because a breach of the requirements of lawfulness on its own is not serious enough to establish a violation of a Convention right.412 Although the ECtHR decides such cases under the heading of proportionality, the problematic aspects of legality are taken into account in the final decision, and the Court still distinguishes between the two different tests. To conclude, in certain cases the ECtHR fails to distinguish adequately between the review of legality and the review of proportionality.413 The structure of the Court’s argumentation in these cases can be indistinct and the clarity of the concepts of legality and proportionality is undermined. In cases where legality is clearly the principal concern, the Court should decide them on that basis. Uncertainty about the differentiation of the requirements of the limitation clauses leads to a lack of precision and foreseeability of the Court’s decisions. Thus it appears that the ECtHR, in certain cases, does not adequately live up to its own standard of legality.414 The overlap is primarily the effect of deference towards the primary responsibility of national authorities to interpret domestic law, and also the desire to take into account the wider interests of society.415 Certain cases seem to require the ECtHR to review an interference under the heading of proportionality, as this will allow the Court to carefully balance all of the different interests that are at stake in a particular case.416 Also, in some cases the breach of the requirements of lawfulness is not serious enough to establish a violation of a Convention right. Where the ECtHR takes into account the quality of the law under the heading of proportionality this seems unproblematic, so long as the distinction between legality and proportionality is maintained.

412 See for instance the following cases:  Beyeler v Italy (GC), App no 33202/96, 2000-I, 5 January 2000, at 109; Buzescu v Romania, App no 61302/00, 24 May 2005, at 92, 98 (unreported). 413 Johan van de Lanotte and Yves Haeck (2004) at 717–18. 414 Jukka Viljanen (2003) at 174–8. 415 Van der Schyff considers the balance of interests inherent in the proportionality test to be essential in deciding whether an interference is legitimate (Gerard van der Schyff (2005) at 182). In contrast, according to Schokkenbroek, the overlap between legality and proportionality is due to the material concept of law used by the ECtHR, especially in cases where the law is reviewed in abstracto (J.G.C. Schokkenbroek (1996) at 182). 416 Louis-Edmond Pettiiti (1995) at 392.

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6 Conclusion To recapitulate, legality demands that interferences with Convention rights are, first, based on a national law, and secondly, that the law must have sufficient quality. The first requirement is not strictly applied because the ECtHR is not a fourth instance court and it applies a material concept of domestic law. The quality of the law is assessed by the ECtHR based on the requirements of legality, of which foreseeability is the most prevalent. Foreseeability is quite broad, and includes the demand that law should not be retroactively applied, and that it must be consistent, sufficiently precise, and general. Next to foreseeability, legality includes a demand that law is accessible and that judicial safeguards exist where national authorities are given wide discretionary powers. The quality requirements of legality are derived from the rule of law concept. Legality is most prevalent in the case law of the ECtHR in relation to the limitation clauses and Articles 5 and 7 of the Convention. Still, the existence of national laws and procedures of sufficient quality is of importance for the effective protection of all articles of the Convention, and not only to those that specifically refer to legality. The requirements of legality in the context of the Convention are comparable to those requirements of legality described in Chapter 2, but the former are focused mostly on foreseeability. This is a broad term that includes different elements, such as generality, precision, non-retroactivity, and consistency. In the context of the Convention, legality is more focused on the precision of the law, and less on generality. This could be explained by the changing role of law in society, whereby government is required to actively regulate many aspects of society through law. Further, the Convention requirement of accessibility is similar to the requirement of promulgation described in Chapter 2. Also, the requirement that there must be congruence between official action and the declared rules is found in the case law of the ECtHR. The first aspect of legality—the requirement that national laws and procedures must be complied with—can be understood as a reflection of this principle. However, the criteria of the stability of the law—described in Chapter 2 as an important requirement of legality—is not described as a requirement of legality in the case law. The existence of judicial safeguards is also understood as a requirement of legality in the case law. This requirement too is derived from the rule of law. As was shown in Chapter 2, although Fuller has not included judicial safeguards as a requirement of legality, other authors have. Also, judicial review is generally understood as the best method to ensure that government keeps to the law. Surprisingly, the ECtHR does not include this requirement in all cases, but in those where government has wide discretionary powers. Similar to the requirements of legality described in theory, the different requirements of legality in the case law of the ECtHR are also often closely related and tested together. Furthermore, the quality requirements are, too, purpose-oriented and dependent on context. For instance, foreseeability is applied in a lenient manner in certain areas of the law, such as laws concerning morality and disciplinary

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laws. This fits Fuller’s description of legality, in which he has remarked that the standard can be applied less strictly where law is equated to custom.417 Likewise, legality in the context of the Convention is not concerned with the substantive content of domestic law. It does not determine the substantive content that laws should or should not have. Based on the review of foreseeability, the ECtHR has developed guidelines to which domestic law must adhere in the area of secret surveillance methods. Even so, these guidelines concern formal aspects, such as the duration of the methods applied and the possibility of control. These guidelines do not determine the purposes for which secret surveillance methods may be applied, or to which individuals. Thus they do not determine the scope of the right to private life. Nevertheless, in some cases the review of foreseeability is open to substantive arguments. This became apparent in the cases concerning the criminalization of rape in the context of marriage. Legality is a semi-autonomous term that gives normative weight to national law and imposes upon national law a Convention standard of the quality of the law. Although the quality requirements give legality an autonomous nature, legality is still a semi-autonomous Convention term that first of all demands the existence of a national law. Legality thus incorporates national legal norms. At the same time, the Court attempts to maintain a certain distance by looking at the effects and the quality of national law. The Court attaches importance to the separation between the legal systems whereby it pays deference to the primary responsibility of national courts to interpret and apply national law. Still, the distance from national law cannot be truly maintained. National law is traditionally seen as a fact by international tribunals, but it is more than mere fact for the ECtHR.418 In the Court’s case law, the national law has normative value because a breach of national law can entail a breach of the Convention. Chapter 2 has shown that legality could be seen to have a core that demands ‘rule by law’ and that the quality requirements are added to this core element of legality.419 The demand of the existence of a national law cannot be easily understood in terms of this formal core of legality that is focused on ultra vires. This is because the requirement of the existence of a national law is not strict and the ECtHR uses a material view of what constitutes law. The material concept of law is necessary because it ensures flexibility and accommodates differences between legal systems. The requirements of legality are, on the one hand, aimed at maintaining a distance from national law, while on the other ensuring effective scrutiny.420 The focus on the

417

See further Chap 2, sect 3.4, in the text around n 234. For a different view see Gerard van der Schyff (2005) at 175, 177 419 See Chap 2, sect 3.1 and especially in the text around n 181. 420 Mark E. Villiger, ‘The Principle of Subsidiarity in the European Convention on Human Rights’ in Marcelo G. Kohen and Lucius Conrad Caflisch (eds), Promoting Justice, Human Rights and Conflict Resolution through International Law/La Promotion de la Justice, des Droits de l’Homme et du Règlement des Conflits par le Droit International: Liber Amicorum Lucius Caflisch (Leiden:  Nijhoff, 2007) at 629; Irene Hoffmann, Der Grundsatz der Subsidiarität im Rechtsschutzsystem der Europäischen Menschenrechtskonvention, Rechtliche Fundierung, Besonderheiten und Bedeutung (Frankfurt am Main: Peter Lang, 2007) at 26, 34. 418

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quality requirements allows the ECtHR to maintain a certain distance from domestic law.421 Thus the legality concept fits the subsidiary role of the ECtHR. After all, the Convention offers only a minimum guarantee, and states remain primarily responsible for protecting human rights. At the same time, the quality requirements of legality allow the ECtHR to review national law in an independent and strict manner.422 The review of the quality of the law is an important tool to ensure effective human rights protection because the quality requirements set an autonomous standard for domestic law. Thus legality does not allow national states to hide behind national procedural rules and rule formalism. The independence of the review of legality is necessary; otherwise states could simply change their laws. If the review of legality were to be restricted to the question of whether national law was breached, domestic law would work as a shield. Limiting the scrutiny of the existence of national law by formalist notions of law could be detrimental to effective human rights protection. In this manner, the quality requirements of legality set limits to government power.423 The essence of legality is rightly formed by the review of the quality of national law, which allows an autonomous review. One of the aims of the Convention is to achieve greater unity between the member states and to raise and develop a general standard of human rights. A  detailed scrutiny of national law would limit the importance of the judgments to the legal system of the state that was involved in the proceedings. The unity that can be achieved by an autonomous review of legality leads to an equal protection of individuals within the Convention area and is thus to be favoured over a review of legality based merely upon national law.

421 For this reason, Logemann questions whether the legality concept—given its breadth—can ensure effective human rights protection (Anika Logemann (2004) at 308). 422 423 For a different view, see Irene Hoffmann (2007) at 29. See also Chap 2, sect 3.4.

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4 Judicial Safeguards 1 Introduction The existence of judicial safeguards is one of the requirements of legality, as was described in Chapter 2.1 Access to a fair judicial procedure is necessary for the resolution of disputes and to ensure that law does not remain law on the books. In addition, judicial safeguards are seen as essential to ensure that government remains within the boundaries set by law. Judicial safeguards can only be effective when the judiciary is independent from the other powers of government; the independence of the judiciary is also seen to be required by the rule of law in the case law of the European Court of Human Rights (‘ECtHR’, ‘Strasbourg Court’, or simply ‘the Court’). Although the existence of judicial safeguards is important with regard to all rights under the Europen Convention on Human Rights2 (‘the Convention’), they are especially demanded by some in particular. This chapter concerns those Convention articles that are specifically concerned with judicial safeguards. Article 6 is the main provision regarding judicial safeguards and is central to the rule of law in the Convention. Of all the specific procedural guarantees protected by Article 6, the rule of law especially concerns the right of access to court. The right to an effective remedy, and the right to liberty too, are relevant Convention rights that concern judicial safeguards. The rule of law also requires the existence of judicial safeguards in relation to the other articles of the Convention to ensure the effective protection of Convention rights. As shown in Chapter 3, the existence of judicial safeguards can also be seen as a requirement of legality in relation to the limitation clauses and Articles 5(1) and 7 of the Convention. First, in section 2.1, a description will be given of how the rule of law is related to the specific elements of the right to a fair trial. Next, it will be shown in section 2.2 how the ECtHR has derived the right of access to court from the rule of law. The relation between the rule of law and the applicability of the right of access to court will be analysed in section 2.3. It will then be shown in section 2.4 that the rule of law requires that the essence of the right of access to court is upheld. Next, section 2.5 will show that the ECtHR has derived the execution and finality

1

See chap 2, sect 3.3. Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953. 2

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of judicial decisions from the rule of law. Section 3 will explain that judicial safeguards are also of central importance to the rule of law in the case law beyond the context of the right to a fair trial. Section 3.1 will describe the central role of the judiciary in a rule of law system. Next, the relation between the rule of law, on the one hand, and the right to liberty and the right to an effective remedy, on the other, will be discussed in sections 3.2 and 3.3, respectively. Lastly, in section 4, the relation between the rule of law and the separation of powers and the independence of the judiciary will be analysed.

2 The Right to a Fair Trial 2.1 The detailed guarantees of the right to a fair trial The right to a fair trial is laid down in Article 6 of the Convention, which includes detailed requirements to which domestic law must adhere, such as the right to a public hearing and a judgment in a reasonable time. Furthermore, the ECtHR has interpreted Article 6(1) to include several requirements to ensure that proceedings are conducted in a ‘fair’ manner, such as the equality of arms, the rules of evidence, and the right to a hearing in one’s presence.3 The first paragraph of Article 6 applies in criminal cases as well as in those that concern civil rights and obligations. The second and third paragraphs of this provision include additional requirements that only apply in criminal cases.4 The Strasbourg Court has described the right to a fair trial as central to the rule of law.5 Several judges have also described this right to reflect the rule of law.6 Furthermore, within the Council of Europe there is wide recognition of the central importance of the right to a fair trial to the rule of law.7 There are numerous initiatives within the Council of Europe to strengthen the position of the judiciary in European states and thus ensure compliance with the Convention’s right to a fair trial, and these are described as strengthening the rule of law. Important examples are the setting up of the Consultative Council 3 Clare Ovey and Robin C.A. White, The European Convention on Human Rights, 5th edn (Oxford:  Oxford University Press, 2010) at 260–6; David Harris, Michael O’Boyle, and Colin Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford:  Oxford University Press, 2009) at 246, 251–9. 4 Clare Ovey and Robin C.A. White (2010) at 242; David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 299, 306. 5 The ECtHR has stated that art 6 ‘reflects the fundamental principle of the rule of law’ (Sunday Times v United Kingdom (Pl), App no 6538/74, Series A no 30, 26 April 1979, at 55). 6 ‘Article 6 of the Convention and Article 1 of Protocol No. 1 reflect two separate and distinct Convention values, both of fundamental importance—the rule of law and the fair administration of justice on the one hand and the peaceful enjoyment of possessions on the other.’ Joined partly dissenting opinion of Judges Rozakis, Sir Nicolas Bratza, Bonello, Loucaides, and Jočienè in Maurice v France (GC), App no 11810/03, ECHR 2005-IX, 6 October 2005. 7 See, eg, the Warsaw Declaration, Heads of State and Government of the Member States of the Council of Europe, Third Summit, 16–17 May 2005, at 4; see also Committee of Ministers, ‘On Independence, Efficiency and Role of Judges’ Recommendation No R (94) 12.

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of European Judges (‘CCJE’)8 and the European Commission for the Efficiency of Justice.9 In the specific cases that concern the right to a fair trial, the ECtHR has mostly referred to the rule of law in relation to the right of access to court. Apart from this, it has related a number of specific requirements of the right to a fair trial to the rule of law: the presumption of innocence, the rules of evidence, the rights of the defence, reasonable time, and impartiality.10 This last element of the right to a fair trial will be further discussed in section 4.3, in relation to the independence of the judiciary. The presumption of innocence finds expression in Article 6(2). This provision determines that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. The first case where the ECtHR related the presumption of innocence to the rule of law is that of Salabiaku v France.11 In this case, the applicant had been convicted of the possession of prohibited goods when passing through customs. The Customs Code was framed in such a manner that the mere possession of prohibited goods led to a rebuttable presumption of guilt. The Court judged that states are in principle allowed to frame the criminal laws in such a manner that a mere fact is penalized irrespective of criminal intent or negligence. However, the Court established that courts must always have a certain power of assessment and be able to accord the applicant the benefit of the doubt. It noted that ‘according to law’ could therefore not be construed exclusively in reference to national law, given the importance of the presumption of innocence as a fundamental principle of the rule of law.12 Possibly the ECtHR related the presumption of innocence to the rule of law, because the case concerned the independent review of national law. If so this case can be compared to the cases that concern the legality of interferences with other Convention rights, where the ECtHR independently reviews the quality of national law, based on the rule of law.13 In another case, the ECtHR also established a connection between the presumption of innocence and the rule of law. This case concerned a fine imposed on the heirs of a taxpayer for tax evasion committed by the latter. The Court found that inheritance of the guilt of the dead is not compatible with the standards of criminal

8 The website of the CCJE reads: ‘The rule of law is one of the main values upheld by the Council of Europe and the judiciary is its cornerstone’ (Council of Europe, ‘Consultative Council of European Judges CCJE’ (available at:  ) (last accessed 17 March 2009)). 9 The resolution setting up this Commission notes that ‘the rule of law on which European democracies rest cannot be ensured without fair, efficient and accessible judicial systems.’ Also, ‘the rule of law principle can be a reality only if citizens can uphold their legal rights and challenge unlawful acts.’ (Council of Europe (Committee of Ministers), ‘Establishing the European Commission for the Efficiency of Justice’, 808th meeting, 18 September 2002, Resolution (2002) 12). 10 The principle of ne bis in idem is regulated separately in art 4 of protocol 7 and is thus not part of art 6, although it is part of the notion of a fair trial. The ECtHR described this principle as an element of the rule of law and legal certainty in the case of Assanidze v Georgia (GC), App no 71503/01, ECHR 2004-II, 8 April 2004, at 130. 11 Salabiaku v France, App no 10519/83, Series A no 141-A, 7 October 1988. 12 Salabiaku v France, 7 October 1988, at 28. 13 As explained in Chap 3, sects 4.2.3 and 4.2.4. For a summary see Chap 3, sect 6, in the text around n 422.

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justice in a society governed by the rule of law.14 The ECtHR probably referred to the rule of law because this case concerned issues similar to Article 7 of the Convention. The ECtHR has in many cases established that Article 7 is central to the rule of law.15 In addition, the ECtHR has related the rule of law to the rules of evidence: it has established that the rule of law requires the integrity of the judicial process. An example is the case of Gäfgen v Germany16 which concerned the use of evidence obtained through violation of Article 3. The Court found that courts may not use evidence obtained as a result of a violation of the prohibition of torture or other ill-treatment in breach of Article 3.17 This case could also be understood in light of the idea that the rule of law requires the protection of the core contents of the most basic human rights.18 Article 6(3), subparagraph (c) guarantees the right of everyone charged with a criminal offence to legal assistance. In the case of Poitrimol v France,19 the question arose whether an accused who had avoided appearing in person was still entitled to legal assistance. Under French law, a convicted person who has not surrendered to a judicial warrant for his arrest cannot be represented for the purposes of an appeal on points of law. The ECtHR found that the legislature could discourage the unjustified absence of the accused. However, the Court established that the restriction of the right of the applicant to defend himself through legal assistance of his own choosing to be disproportionate. The ECtHR emphasized the ‘signal importance of the rights of the defence and of the principle of the rule of law in a democratic society.’20 The ECtHR has also referred to the rule of law in relation to the right to a fair hearing within a reasonable time. The Court emphasized the ‘ “important danger” that “excessive delays in the administration of justice” represent for the rule of law’.21 To conclude, the right to a fair trial is generally understood as central to the rule of law. The ECtHR mostly refers to the rule of law in relation to the right of access to court and the finality and the execution of judicial decisions and it has interpreted the right to a fair trial to include these requirements based on the rule of law. Even so, the Court has also referred in certain cases to the rule of law in relation to other specific elements of the right to a fair trial, namely the presumption of innocence, the rights of the defence, and impartiality. However, the rule of law has not been a reason to broaden the scope of a fair hearing to include other principles of the right to a fair trial, such as the equality of arms. 14

EL, RL, and JO-L v Switzerland, App no 20919/92, ECHR 1997-V, 29 August 1997, at 53. CR v United Kingdom, App no 20190/92, Series A no 335-C, 22 November 1995, at 32; K-HW v Germany (GC), App no 37201/97, ECHR 2001-II, 22 March 2001, at 45. 16 Gäfgen v Germany (GC), App no 22978/05, 1 June 2010 (not yet reported). 17 On a side note, the ECtHR has qualified this prohibition with respect to real evidence. The Court only considers real evidence to be in breach of art 6 when it has had a real impact on the conviction of the applicant (Gäfgen v Germany (GC), 1 June 2010, at 165, 167, 175, 178 (not yet reported)). 18 See Chap 2, sect 5.3, in the text around n 367. 19 Poitrimol v France, App no 14032/88, Series A no 277-A, 23 November 1993. 20 Poitrimol v France, 23 November 1993, at 38. 21 Bottazzi v Italy (GC), App no 34884/97, ECHR 1999-V, 28 July 1999, at 22; Di Mauro v Italy (GC) App no 34256/96, ECHR 1999-V, 28 July 1999, at 23. 15

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2.2 Access to court derived from the rule of law Before the ruling of the ECtHR in the case of Golder v United Kingdom 22 (‘the Golder case’) it was not clear if the right of access to court was part of Article 6 of the Convention.23 The text of Article 6 does not explicitly include access to court as an element of the right to a fair trial.24 In the Golder case, both the European Commission of Human Rights (‘EComHR’) and the ECtHR decided that access to court is part of Article 6(1).25 The ECtHR also clarified in this case the importance of the rule of law as one of the principles mentioned in the Preamble and the Convention itself.26 The Golder case concerned the question of how far rights of prisoners could be restricted. Golder had been in prison when he was wrongly accused of starting a prison riot. He wanted to commence a civil procedure against the accuser, but the Secretary of State did not allow him to consult a solicitor. Thus, effectively, Golder was unable to commence a civil action. The EComHR decided that Article 6 includes a right of access to court, based on the argument that without access to court the procedural safeguards of Article 6 would mean considerably less. The EComHR described access to court and the procedural safeguards of Article 6 as the essence of the rule of law.27 The EComHR noted that ‘the requirements of a “fair and public hearing” etc., confirm the idea of the rule of law [sic]’.28 The rule of law was also seen by the EComHR to be one of the main objects and purposes of the Convention.29 The ECtHR arrived at the same decision as the EComHR, although with a slightly different line of argumentation. First, one argument for including access to court was a textual interpretation of Article 6. Comparing the English and the French versions of the text of Article 6, the Court found that the French version could be read to imply the right of access to court.30 Secondly, the Court decided that access to court forms part of Article 6, because the rule of law implies that individuals have the right of access to court.31 It explained that the rule of law as a principle of interpretation has an important function in clarifying the scope of Article 6. Thirdly, the ECtHR attached importance to the fact that access to court is one of the ‘universally “recognised” fundamental principles of law’.32 Thus, according to the ECtHR, the right of individuals to have access to court is both a universally recognized and 22

Golder v United Kingdom (Pl), App no 4451/70, Series A no 18, 21 February 1975. R.A. Lawson and H.G. Schermers, Leading Cases of the European Court of Human Rights (Nijmegen: Ars Aequi Libri, 1997) at 25. 24 Golder v United Kingdom (Pl), 21 February 1975, at 28. 25 Golder v United Kingdom (Pl), 21 February 1975, at 28. 26 Theo van Boven, ‘The Preamble of the Convention on Human Rights and Fundamental Freedoms’ in L.E. Pettiti and P.H. Imbert (eds), La Convention Europeenne des Droit de l’Homme Commentaire Article par Article (Paris: Economica, 1995) at 406. 27 Golder v United Kingdom (Pl), App no 4451/70, Series B no 16, 1 June 1973, at 53. 28 Golder v United Kingdom (Pl), 1 June 1973, at 54. 29 Golder v United Kingdom (Pl), 1 June 1973, at 54. 30 Golder v United Kingdom (Pl), 1 June 1973, at 32. 31 Golder v United Kingdom (Pl), 1 June 1973, at 34. 32 Golder v United Kingdom (Pl), 1 June 1973, at 35. 23

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fundamental principle of law as well as implied by the rule of law. Consequently, both arguments reinforce each other. Lastly, the ECtHR argued that without access to court, the ‘fair, public and expeditious characteristics of judicial proceedings are of no value at all’.33 This last point essentially concerns the notion of effective human rights protection, which is one of the main principles of interpretation of the ECtHR.34 In the Golder case, the rule of law was the most important argument for including access to court in Article 6, given its prominence in the judgment.35 The ECtHR noted the importance of the rule of law as a concept of the Convention. The rule of law is included in the Preamble as part of the heritage of European states. The United Kingdom argued that the rule of law was not part of the object and purpose of the Convention and thus only pointed out that the member states share certain features of the legal system. However, the ECtHR did not accept this as a relevant argument which could negate the importance of the rule of law as an interpretative tool. The Court instead emphasized the importance of the rule of law as one of the main reasons the contracting states set up the Convention system of protection.36 It also found the relation between the Council of Europe and the Convention of significance, given the relevance of the rule of law to the Council of Europe. The Court noted that all state parties to the Convention are also members of the Council of Europe. The Statute of the Council of Europe, both in its Preamble and in Article 3, binds the state parties to the rule of law.37 Furthermore, in several later cases the Strasbourg Court has emphasized the link between the right of access to court and the rule of law.38 These later cases also show that the rule of law has been the main reason for including access to court in Article 6. Several judges, in separate, concurring, and dissenting opinions, have emphasized the close link between Article 6 and the rule of law.39 In Roche v United Kingdom40 (‘the Roche case’) the Grand Chamber referred back to the decision in the Golder case and the interpretation of Article 6 to include access to court. The Grand Chamber found that the reasons for broadening Article 6 have been ‘the rule of law and the avoidance of arbitrary power which underlay much of the Convention.’41 33

Golder v United Kingdom (Pl), 1 June 1973, at 35. Clare Ovey and Robin C.A. White (2010) at 74 35 J.G. Merrills, The Development of International Law by the European Court of Human Rights, 2nd edn (Manchester: Manchester University Press, 1993) at 129. For a different view, see Van Dijk, who mainly stresses the principles of international law which forbid the denial of justice (P. van Dijk, ‘Access to Court’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff Publishers, 1993) at 345. 36 Golder v United Kingdom (Pl), 21 February 1975, at 34. 37 Golder v United Kingdom (Pl), 21 February 1975, at 34. 38 The ECtHR has held that ‘in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts . . .’ (Kreuz v Poland, App no 28249/95, ECHR 2001-IV, 19 June 2001, at 52; Malahov v Moldova, App no 32268/02, 7 June 2007, at 25 (unreported)). 39 In their partly dissenting opinion, Judges Rozakis, Sir Nicolas Bratza, Bonello, Loucaides, and Jočiené noted that art 6 reflects the rule of law and the fair administration of justice, which they described as values that are of fundamental importance to the Convention (Draon v France (GC), App no 1513/03, ECHR 2006-IX, 6 October 2005). 40 Roche v United Kingdom (GC), App no 32555/96, ECHR 2005, 19 October 2005. 41 Roche v United Kingdom (GC), 19 October 2005, at 116; see also Markovic and ors v Italy (GC), App no 1398/03, ECHR 2006-XIV, 14 December 2006, at 92. 34

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Several dissenting judges in the Roche case emphasized the importance of the rule of law for the acceptance of the right of access to court into Article 6. The judges remarked that ‘we must not lose sight of the demands of the rule of law which formed a basis for the acceptance of a right of access to a court.’42 The argument for the effective protection of Article 6 can also be understood in light of the rule of law. As will be shown, the ECtHR has, in later judgments, found that the rule of law requires that the essence of the right of access to court is ensured.43 What is of interest is how the rule of law argument is made to increase the acceptance of the ruling. The rule of law argument shows that the expansion of Article 6 is only the endorsement of legal values that were already shared by all states. Although the ECtHR in the Golder ruling has expanded the reach of the Convention, this expansion is based upon an already existing consensus, which is also found in reference to general principles of international law. Even so, the inclusion of the right of access to court has also been criticized as the inclusion of a new right.44 The Golder judgment concerned civil rights and obligations. In the case of Deweer v Belgium45 the ECtHR established that the right of access to court does not only apply in cases that concern civil rights and obligations, but also in cases that concern a criminal charge.46 Deweer had been charged with a criminal offence and agreed to pay a certain sum of money as a friendly settlement. He challenged this settlement, which had barred criminal proceedings. The ECtHR found that the rule of law demands that such a settlement be reached in the absence of constraint. Thus, in relation to a criminal charge, the right of access to court is also derived from the rule of law.47 To conclude, the rule of law should be seen as the main reason why the ECtHR has broadened the scope of Article 6 to include access to court, both with regard to cases that concern civil rights and obligations and those that concern a criminal charge.

2.3 The scope of the right of access to court The rule of law has relevance in the case law concerning the decision as to whether Article 6(1) is applicable. The ECtHR has found that because Article 6 reflects the fundamental principle of the rule of law, and given the prominent place given to the right to the fair administration of justice in a democratic society, a restrictive interpretation of Article 6(1) would not correspond to the aim and the purpose of that provision.48 First, the rule of law concerns the question of whether national 42 Dissenting opinion of Judge Loucaides, joined by Judge Rozakis, Zupančič, Stážnická, Casadevall, Thomassen, Maruste, and Traja in Roche v United Kingdom (GC), 19 October 2005. 43 See Chap 4, sect 2.4.2, in the text around n 130. 44 Separate opinion of Judge Fitzmaurice in Golder v United Kingdom (Pl), 21 February 1975, at 38, 39. This voluntarist view has been criticized (Robert Pelloux, ‘L’affaire Golder devant la Cour européenne des Droits de l’Homme’ (1975) Annuaire français de droit international at 339). 45 Deweer v Belgium, App no 6903/75, Series A no 35, 27 February 1980. 46 47 Deweer v Belgium, 27 February 1980, at 49. Deweer v Belgium, 27 February 1980, at 49. 48 Micallef v Malta, App no 17056/06, 15 January 2008, at 46 (unreported). The Grand Chamber, in its subsequent ruling, determined that art 6(1) applies to interim measures, thereby departing from

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law recognizes the existence of a right, and whether a case concerns a criminal charge. Secondly, there has been a development in the case law whereby Article 6 is broadened in scope to include cases that concern administrative law. The relation between this wider scope of the right of access to court and the rule of law will be further discussed in Section 2.3.2.

2.3.1 Autonomous terms Article 6, in principle, only applies in cases that concern civil rights and obligations or a criminal charge. ‘Criminal charge’ is an autonomous term in the context of the Convention. The rule of law demands effective safeguards when a criminal charge is at stake. The ECtHR determined, in Engel v Netherlands,49 that the autonomous interpretation of the term ‘criminal charge’ ensures the effective supervision of the right of access to court by the ECtHR, and is thus demanded by the rule of law.50 The Court stated the following: In a society subscribing to the rule of law, there belong to the ‘criminal’ sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake; the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so.51

Three criteria are of importance in deciding whether, or not, a case is a criminal case in the light of the Convention. First, the classification of domestic law is of significance, but only as a starting point. When national law does not classify a case as a criminal charge the ECtHR will come to an independent judgment based upon its own criteria.52 Secondly, the nature of the offence and, thirdly, the nature and degree of severity of the penalty are also relevant.53 ‘Civil rights and obligations’ is also a Convention term that can be called autonomous, at least to a certain extent.54 The Convention does not guarantee the right of access regarding its substantive rights. Nor does Article 6 determine a particular content for civil rights and obligations in the substantive law of the member states.55 National law is a starting point to determine whether a right exists.56 Even so, national law does not need to recognize the existence of a right explicitly. It is sufficient when a earlier decisions. The Grand Chamber did not refer to the rule of law in its ruling (Micallef v Malta (GC), 15 October 2009, at 81). 49 Engel and ors v Netherlands (Pl), App no 5100/71, Series A no 22, 8 June 1976. 50 Engel and ors v Netherlands (Pl), 8 June 1976, at 82. 51 Engel and ors v Netherlands (Pl), 8 June 1976, at 82; Clare Ovey and Robin C.A. White (2010) at 244. 52 Johan van de Lanotte and Yves Haeck, Handboek EVRM, Dl. 2.1 Artikelsgewijze Commentaar (Vol 1) (Antwerp: Intersentia, 2004) at 410. 53 EL, RL, and JO–L v Switzerland, 29 August 1997, at 44. 54 Jochen Abr. Frowein and Wolfgang Peukert, Die Europäische Menschenrechtskonvention, EMRK-Kommentar, 2nd edn (Kehl/Strasbourg/Arlington NP: Engel Verlag, 1996) at 157; Johan van de Lanotte and Yves Haeck (2005) at 387. 55 Johan van de Lanotte and Yves Haeck (2004) at 390. 56 Clare Ovey and Robin C.A. White (2010) at 247–8, 256.

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right can be derived from national law.57 Contestation over rights must ‘at least on arguable grounds’ be recognized under domestic law.58 In the case of Joseph Kaplan v United Kingdom59 the EComHR noted that the substantive content and effects of a possible ‘right’ are more important than the national legal classification.60 The rule of law is one of the aspects the ECtHR takes into account to decide whether the contestation concerns a right that is recognized under domestic law. There are limits to how national government can change the laws.61 Thus the ECtHR can ensure that national authorities do not arbitrarily restrict the right of access to court. Furthermore, it is not necessary that a civil right exists during the trial; it is only necessary that such a right has existed.62 When a restriction in national law limits the substantive content, properly speaking, of the relevant civil right, Article 6(1) does not apply. However, Article 6(1) could apply to a restriction which amounts to a procedural bar preventing the bringing of potential claims to court.63 In the case of A v United Kingdom64 the government argued that the applicability of Article 6(1) not only depended on the substantive content of the relevant civil right, but could also be restricted by procedural bars. The ECtHR did not agree.65 It established that in this context it was contrary to the rule of law when access to court is limited for a whole range of civil claims, or when a large group or categories of persons are conferred immunity from civil liability without the possibility of review by the ECtHR.66 Also, in several cases concerning sovereign immunity, the ECtHR has reviewed limitations of the right of access to court resulting from sovereign immunity. In these cases, the governments of the United Kingdom and Ireland argued that the applicants did not have a civil right, since sovereign immunity removed the dispute from the competence of the national courts. The Strasbourg Court acknowledged that Article 6(1) does not create substantive rights in the domestic legal order. Subsequently, the ECtHR determined that granting sovereign immunity should be seen as a procedural bar to the right of access to court and not as a limitation of 57

Jochen Abr. Frowein and Wolfgang Peukert (1996) at 158. James and ors v United Kingdom (Pl), App no 8793/79, Series A no 98, 21 February 1986, at 81; Lithgow and ors v United Kingdom (Pl), App nos 9006/80; 9262/81; 9263/81; 9265/81; 9266/81; 9313/81; 9405/81, Series A no 102, 8 July 1986, at 192; Holy Monasteries v Greece, App no 13092/87, Series A no 301-A, 9 December 1994, at 80; Powell and Rayner v United Kingdom, App no 9310/81, Series A no 172, 21 February 1990, at 36. 59 Joseph Kaplan v United Kingdom (Pl), App no 7598/76, 21 DR 5, 17 July 1980. 60 Joseph Kaplan v United Kingdom (Pl), 17 July 1980, at 134. 61 Christian F. Schneider, ‘Gesetzlicher Entzug von Rechten und Art. 6 EMRK’ in Christoph Grabenwarter and Rudolf Thienel (eds), Kontinuität und Wandel der EMRK: Studien zur Europäischen Menschenrechtskonvention (Kehl am Rhein: Engel, 1998) at 253. 62 Christian F. Schneider (1998) 251–3. 63 Markovic and ors v Italy (GC), 14 December 2006, at 94. 64 A v United Kingdom, App no 35373/97, ECHR 2002-X, 17 December 2002. 65 A v United Kingdom, 17 December 2002, at 63. 66 Fogarty v United Kingdom (GC), App no 37112/97, ECHR 2001-XI, 21 November 2001, at 25. See also McElhinney v Ireland (GC), App no 31253/96, ECHR 2001-XI, 21 November 2001, at 24; Al-Adsani v United Kingdom (GC), App no 35763/97, ECHR 2001-XI, 21 November 2001, at 47; A v United Kingdom, App no 35373/97, ECHR 2002-X, 17 December 2002, at 63; Markovic and ors v Italy (GC), 14 December 2006, at 97. 58

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a substantive right.67 Next, the Court noted that it would be contrary to the rule of law if the ECtHR were not able to exercise review in such cases.68 Under domestic law, the boundaries between procedural bars and substantive limitations of a right are not always clear.69 The rule of law can be of importance to determine whether domestic law draws these boundaries in an arbitrary fashion or in such a manner that deprives the right of access to court of its essence. Based on the rule of law, the ECtHR will independently review whether a right is limited by substantive law or by procedural law. The Court has stated that it will use domestic law as a starting point, but it must review whether the labels used by domestic law are acceptable.70 The Roche case is an example of how the ECtHR reviews whether a right is limited by substantive law or by procedural law. This case concerned an applicant who could not commence national judicial proceedings because of the existence of a limitation on the liability of the British Crown in tort to servicemen. The central issue concerned the question of whether this limitation was of a substantive or a procedural nature. The applicant claimed he had a civil right under national law which was barred by the use of executive discretion. A close majority found against the applicant, and held the law, which conferred discretionary power on the Secretary of State to exclude certain cases from judicial review, to be a limitation of the substantive right. Thus the applicant did not have a civil right and Article 6 was found not to be applicable to his case.71 A substantial minority of the judges, however, found the restriction on the right of access to court to be of a procedural nature, and noted that the rule of law requires the Court to adopt a liberal approach to the interpretation of domestic law. The ECtHR should allow room for the right of access to court rather than create bars to the right of access to court.72 Incidentally, the ECtHR has decided that it is unnecessary to determine whether a limitation on a right was of a procedural or a substantive nature.73 Even so, in a later case the Court found that even when the particular circumstances or complaints in a case ‘may render it unnecessary to draw the distinction between substantive limitations and procedural bars’, Article 6(1) does not apply when a substantive limitation exists.74 To summarize, Article 6(1) applies in cases that concern a criminal charge or a dispute over a civil right or obligation. The term ‘criminal charge’ is an autonomous term, to ensure the effective protection of Article 6(1) in criminal cases, as is demanded by the rule of law. Only to a certain extent can ‘civil rights and obligations’ be called an 67 Al-Adsani v United Kingdom (GC), 21 November 2001, at 48; Fogarty v United Kingdom (GC), 21 November 2001, at 26; McElhinney v Ireland (GC), 21 November 2001, at 25. 68 Fogarty v United Kingdom (GC), 21 November 2001, at 25. See also McElhinney v Ireland (GC), 21 November 2001, at 24; Al-Adsani v United Kingdom (GC), 21 November 2001, at 47. 69 Fayed v United Kingdom, App no 17101/90, Series A no 294-B, 21 September 1990, at 67. 70 Markovic and ors v Italy (GC), 14 December 2006, at 95–6. 71 Roche v United Kingdom (GC), 19 October 2005, at 123–5. 72 Dissenting opinion of Judge Loucaides, joined by Judges Rozakis, Zupančič, Stážnická, Casadevall, Thomassen, Maruste, and Traja in the case of Roche v United Kingdom (GC), 19 October 2005. 73 Fayed v United Kingdom, 21 September 1990, at 67. 74 Markovic and ors v Italy (GC), 14 December 2006, at 94.

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autonomous term. Although the existence of a right is determined first in reference to domestic law, there are still limits to how national governments can change the law. Based on the rule of law, the ECtHR will independently review whether a right exists under national law and whether a limitation of a right is of a substantive or of a procedural nature.

2.3.2 Access to court in administrative cases In early cases, such as Ringeisen v Austria and Benthem v The Netherlands75 (‘the Benthem case’) the EComHR had already noted that administrative law, due to its proliferation, often touches upon individual rights.76 The ECtHR has widened the scope of Article 6 considerably by interpreting civil rights and obligations in such a fashion that rights that have a public law character have also come within its scope.77 The ECtHR has decided that procedures that are classified under national law as being part of public law could come within the purview of the right to a fair trial under its ‘civil’ head if the outcome is decisive for private rights and obligations.78 Still, certain areas of the law—such as political rights and obligations and the expulsion of aliens—are not necessarily civil in nature, even if they are decisive for private rights and obligations.79 The cases that concern civil servants are an example of how the ECtHR has gradually widened the applicability of the right of access to court. In the case of Pellegrin v France80 (‘the Pellegrin case’) the Court widened the scope of the right of access to court to include cases concerning applicants who were considered civil servants under domestic law. The ECtHR made an autonomous determination as to whether someone was a ‘civil servant’.81 The applicability of Article 6(1) depended upon the question of whether the applicant exercised functions which could be characterized as falling within the exercise of public power. Thus the ECtHR could ensure that national authorities could not arbitrarily restrict the right of access to court by classifying an individual as a civil servant under domestic law. In the case of Vilho Eskelinen v Finland 82 (‘the Vilho case’) the ECtHR again widened the applicability of Article 6(1).83 At the same time, the Court also departed from its autonomous interpretation of ‘civil servants’ developed in the Pellegrin case. The ECtHR decided that Article 6(1) could only be inapplicable where the domestic system bars access

75 Ringeisen v Austria (Pl), App no 2614/65, Series B no 11, 19 March 1970; Benthem v Netherlands (Pl), App no 8848/80, Series B no 80, 8 October 1983. 76 Ringeisen v Austria (Pl), 19 March 1970, at 72–3; Benthem v Netherlands (Pl), 8 October 1983, at 28. 77 David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 218; Clare Ovey and Robin C.A. White (2010) at 247–53. 78 Ferrazzini v Italy (GC), App no 44759/98, ECHR 2001-VII, 12 July 2001, at 27. 79 Ferrazzini v Italy (GC), 12 July 2001, at 28. 80 Pellegrin v France, App no 28541/95, Reports of Judgments and Decisions 1999-VIII, 8 December 1999. 81 Pellegrin v France, 8 December 1999, at 63. 82 Vilho Eskelinen and ors v Finland (GC), App no 63235/00, 19 April 2007 (not yet reported). 83 Vilho Eskelinen and ors v Finland (GC), 19 April 2007, at 57.

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to court for civil servants. The Court established that it will review whether such an exception created by national law is justified on objective grounds in the state’s interest. In all other cases, Article 6(1) will apply to disputes between government and civil servants.84 The widening of the scope of civil rights and obligations where civil servants are concerned is an example of the general development whereby administrative review procedures are increasingly brought within the reach of Article 6(1).85 This development could be understood as demanded by the rule of law. First, the ECtHR noted in Kress v France86 that: . . . the very establishment and existence of administrative courts can be hailed as one of the most conspicuous achievements of a State based on the rule of law, in particular because the jurisdiction of those courts to adjudicate on acts of the administrative authorities was not accepted without a struggle.87

In the Benthem case, a minority of the EComHR argued that civil rights and obligations should be interpreted independently from classification as either public or private in domestic law, given that administrative law increasingly affects individual rights. Civil rights and obligations should be interpreted as ‘all those rights which are individual rights under the national legal system and fall into the sphere of general individual freedom.’88 Secondly, the rule of law demands that interferences with the rights of individuals should be subjected to judicial control.89 Especially in administrative cases, judicial review is required to ensure that government acts within the boundaries of the law. In the Roche case, a substantial minority of the judges argued that the rule of law requires the Court to adopt a liberal approach to the interpretation of domestic law, especially regarding claims against the state: [W]e must not lose sight of the demands of the rule of law which formed a basis for the acceptance of a right of access to a court. The rule of law requires that individuals should be allowed to have their civil rights examined by independent judicial institutions. This applies a fortiori to claims against the State. In such cases we must adopt a more liberal approach or interpretation of the legal situation so as to allow room for the right of access to a court rather than lean towards the extinction of, or the creation of absolute bars to, such a right— if, of course, there is a reasonable opportunity to do so.90

The ECtHR has also underlined in different cases the importance to the rule of law of judicial control in cases of interferences with individual rights by authorities.91 84 Vilho Eskelinen and ors v Finland (GC), 19 April 2007, at 61–2; confirmed in Cudak v Lithuania (GC), App no 15869/02, 23 March 2010, at 42–4 (not yet reported). 85 David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 223. 86 Kress v France (GC), App no 39594/98, ECHR 2001-VI, 7 June 2001. 87 Kress v France (GC), 7 June 2001, at 69. 88 Dissenting opinion of Messrs Melcior, Frowein, Tedekides, Sampalo, Weitzel, and Soyer (Benthem v Netherlands (Pl), 8 October 1983, at 9). 89 P. van Dijk (1993) at 379; separate opinion of Judge Martens in Fischer v Austria, 26 April 1995. 90 Dissenting opinion of Judge Loucaides, joined by Judges Rozakis, Zupančič, Stážnická, Casadevall, Thomassen, Maruste, and Traja in Roche v United Kingdom (GC), 19 October 2005. 91 Klass and ors v Germany (Pl), App no 5029/71, Series A no 28, 6 September 1978, at 55.

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Furthermore, the Committee of Ministers recommended in 2004 that the member states should ensure that all administrative acts are subject to judicial review by an independent and impartial tribunal, and that judicial review in administrative cases must be understood as an aspect of the rule of law.92 Thirdly, the rule of law demands that the right of access to court cannot be limited in an arbitrary fashion through a national differentiation between civil and administrative law.93 The certainty and foreseeability of the ECtHR’s case law would be enhanced if the applicability of Article 6 did not depend on the national classification of administrative and private law.94 Uncertainty is caused by the fact that the right of access to court is applicable only in the determination of civil rights and obligations.95 The applicability of Article 6(1) should not be made dependent upon what domestic law provides for.96 Still, the ECtHR has not referred to the rule of law in those cases where it has broadened the scope of Article 6 to include administrative judicial proceedings. In addition, in the cases that concern civil servants, the widening of Article 6 in the Vilho Eskelinen case has resulted in a less autonomous interpretation of the term civil rights and obligations. This interpretation, which depends upon the classification of civil servants in national law, can be censured as detrimental to the rule of law.97 The decision in the Vilho Eskelinen case makes access to court dependent upon the existence of access to court in the national legal order.98 The judgment has, unfortunately, also been referred to by the ECtHR in a later case that did not concern civil servants.99 Through the approach chosen in the Vilho Eskelinen case, the Court is less able to review whether national authorities have arbitrarily interfered

92 Such judicial review should be conducted by an independent and impartial tribunal. The proceedings and the pronouncement of the judgment should be public. There should be an equality of arms, the proceedings should be adversarial, and the tribunal must have the competence to examine all legal and factual issues. Lastly, the tribunal should at least have the competence to quash the administrative decisions (Council of Europe, Committee of Ministers, Recommendation Rec (2004) 20, Preamble and Explanatory Memorandum and arts 1a, 3a, 4, and 5a) 93 MM Melcior, Frowein, Tedekides, Sampalo, Weitzel, and Soyer held in their dissenting opinion that an independent standard offers the ‘necessary guarantees of foreseeability and of judicial security which are needed to conform to the principle of the “rule of law” ’ (Benthem v Netherlands (Pl), 8 October 1983, at 12). 94 95 P. van Dijk (1993) at 378. Clare Ovey and Robin C.A. White (2010) at 248. 96 P. van Dijk (1993) at 377. 97 Ovey and White remark that the lack of a principle evidenced by the case law concerning the term civil rights and obligations can make it difficult for citizens to know their rights (Clare Ovey and Robin C.A. White (2010) at 253). 98 JJ Costa, Wildhaber, Türmen, Borrego Borrego, and Jociene held in their dissenting opinion that ‘[T]he reasoning in the instant judgment is likely to have the effect of making the applicability of Article 6 § 1 to disputes between the State and its agents dependent on there existing access to a court with jurisdiction to decide them within the domestic legal system.’ (Vilho Eskelinen and ors v Finland (GC), 19 April 2007, at 6). 99 Referring to its ruling in the case of Vilho Eskelinen, the ECtHR found art 6(1) also to apply in injunction proceedings given that art 6(1) was applicable under national law. Micallef v Malta, 15 January 2008, at 46. Note that the Grand Chamber decided art 6(1) to be applicable to interim measures independently from the question of whether that provision is found applicable under national law. See also Chap 4, n 82.

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with an individual’s right to court. Also, the foreseeability and consistency of its case law, which is demanded by the rule of law, is undermined.100 Regrettably, the ECtHR has not yet developed an autonomous interpretation of the term civil rights and obligations in its case law. This failure may be due to a focus on providing justice in individual cases.101 Also, it could be said that in the cases that concern civil rights and obligations, the ECtHR has overly focused on ensuring effective protection of Convention rights by broadening the scope. However, the Convention is a minimum standard, and accordingly it is not problematic when it offers less protection than national law. An autonomous interpretation of the term civil rights and obligations is preferable, even if it is narrower in scope than its present interpretation.

2.4 Limitations of the right of access to court The right of access to court is not absolute, but subject to limitations. Limitations of the right of access to court must have a legitimate aim, the means must be proportionate to the legitimate aim pursued, and the essence of the right must be upheld.102 The criteria used by the ECtHR are similar to the criteria of the limitation clauses of Articles 8, 9, 10, and 11.103 The Court has derived the limitation criteria of the right of access to court from the rule of law.104 The rule of law also militates against legislative interventions which limit the right of access to court.

2.4.1 Legality and retrospective legislation When assessing interferences with the right of access to court, the ECtHR has not explicitly noted that the law on which an interference is based must be accessible and foreseeable. Although the Court uses the criteria of legitimate aim and proportionality—which it also applies with regard to the limitation clauses—it does not unambiguously apply the requirements of legality. At least, the Court has not explicitly asserted that limitations of the right of access to court must be based on a national law of sufficient quality. Still, in certain cases the ECtHR has reviewed the quality of national law in the context of Article 6(1). For example, in the case of Geouffre de la Pradelle v France105 the Court established a violation of Article 6 based on the complexity and

100 Luzius Wildhaber, ‘Solemn hearing of the European Court of Human Rights on the occasion of the opening of the judicial year’, Friday 20 January 2006 (Strasbourg, Council of Europe, 2006), at 3–4. 101 J.P. Gardner, ‘Procedural Incorporation: The Right to Remedies’ in J.P. Gardner (ed), Aspects of the Incorporation of the European Convention of Human Rights into Domestic Law (London:  Bourne Press Limited, 1993) at 93. 102 Ashingdane v United Kingdom, App no 8225/78, Series A no 93, 28 May 1985, at 57; Lithgow and ors v United Kingdom (Pl), 8 July 1986, at 194; Claudia Johanna Staal, De Vaststelling van de Reikwijdte van de Rechten van de Mens (Proefschrift) (Nijmegen: Ars Aequi Libri, 1995) at 340–1. 103 104 Claudia Johanna Staal (1995) at 340. Claudia Johanna Staal (1995) at 340. 105 Geouffre De La Pradelle v France, App no 12964/87, Series A no 253-B, 16 December 1992.

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incoherence of national law.106 Another example is the case of Waite and Kennedy v Germany107 (‘the Waite and Kennedy case’) where the ECtHR reviewed the manner in which German courts had applied the rules on immunity from jurisdiction and found that these rules had not been applied arbitrarily.108 The ECtHR has also set limits on the use of retrospective legislation barring the right of access to court. Retrospective legislation can effectively bar access to court, because a legislative interference can in some cases effectively determine the outcome of judicial proceedings. Thus, although an applicant would still have access to court, starting judicial proceedings would have become meaningless.109 The rule of law sets limits to retrospective legislation that effectively restricts the right of access to court or effectively determines the outcome of the judicial determination of a dispute.110 The ECtHR has ruled that respect for the rule of law and the notion of a fair trial require that any reasons adduced to justify retrospective legislation be treated with the greatest possible degree of circumspection.111 An example of how the rule of law sets boundaries on restrictions of the right of access to court is the case of Stran Greek Refineries and Stratis Andreadis v Greece.112 In this case the civil right of the applicant had become obsolete due to a change in the law. The Greek parliament had interfered in the final determination of a judicial procedure by issuing new legislation, thus undermining the certainty of the law. The Court accepted that the legislation was adopted to provide an authoritative interpretation of an ambiguous law and to eradicate the traces of the military regime. It found that the legislation was aimed at re-establishing democratic legality. At the same time, it emphasized that the Greek government, by signing the Convention, undertook to respect the rule of law, which principle is reflected in the right to a fair trial. This right includes the equality of arms as one of its essential guarantees.113 The ECtHR established that the issuing of new legislation undermined the equality of arms, since the government was a party to the dispute and the intervention by the legislature took place when the judicial proceedings were pending. The Court also found it relevant that the applicants had an enforceable judgment against the state in their favour. Accordingly, it judged the legislative intervention to be decisive to ensure an outcome of proceedings favourable to the government.114 For this reason, the ECtHR established a breach of the right to a fair trial.115

106

Geouffre De La Pradelle v France, 16 December 1992, at 33–5. Waite and Kennedy v Germany (GC), App no 26083/94, ECHR 1999-I, 18 February 1999. 108 Waite and Kennedy v Germany (GC), 18 February 1999, at 52–7. 109 Scordino v Italy, App no 36813/97, 29 March 2006, at 130–3. 110 P. van Dijk, Fried van Hoof, Arjen van Rijn and Leo Zwaak, Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp: Intersentia, 2006) at 576. 111 National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v United Kingdom, App no 21319/93, ECHR 1997-VII, 23 October 1997, at 112. 112 Stran Greek Refineries and Stratis Andreadis v Greece, App no 13427/87, Series A no 301-B, 9 December 1994. 113 Stran Greek Refineries and Stratis Andreadis v Greece, 9 December 1994, at 46. 114 Stran Greek Refineries and Stratis Andreadis v Greece, 9 December 1994, at 44–50; Christian F. Schneider (1998) at 250. 115 Stran Greek Refineries and Stratis Andreadis v Greece, 9 December 1994, at 50. 107

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The ECtHR has found that retrospective legislation is only allowed when there are compelling grounds of general interest.116 The avoidance of further conflicting decisions by the courts does not constitute such a compelling ground.117 In areas of law that are evolutive and where the interest of the community is pre-eminent, such as the area of urban and regional planning, legislative intervention is more readily allowed.118 Also, legislative intervention must not be intended to influence the outcome of pending judicial proceedings.119 Important in this regard is whether an intervention of the legislature takes place at a time when legal proceedings, to which the state is a party, are pending.120 When this is the case, retrospective legislation is not readily allowed. Also, when a legislative intervention simply endorses the position taken up by the state in pending proceedings, this will constitute a breach of Article 6(1).121 However, retrospective legislation may be allowed when it is not specifically directed at a dispute which is the object of ongoing judicial proceedings and when the government has compelling public-interest motives to issue the retrospective legislation.122 Legislative intervention must not prevent proceedings being opened.123 The demand of non-retroactivity is thus also relevant with regard to procedural law that bars access to court. An example is the case of Melnyk v Ukraine124 where the government had changed the time limits for lodging an appeal through legislation. The change was applied retrospectively in this case. The ECtHR found that the retroactive application of changes in the time limits to lodge an appeal could not have been foreseen by the applicant. The retroactive application of the law undermined legal certainty and was contrary to the rule of law.125 Thus in this case the ECtHR reviewed the quality of domestic law and also referred to the requirement of foreseeability. To recapitulate, in certain cases the ECtHR reviews the quality of domestic law on which interferences with the right of access to court are based. Even though it has not explicitly asserted that limitations of the right of access to court must conform to legality, the Court does assess the quality of national law. Especially important in the context of the right of access to court is the stricture of retroactive legislation. The ECtHR has found in several cases that the rule of law demands that limits to the use of retrospective legislation are set. A legislative interference 116 Scordino v Italy, 29 March 2006, at 130-3; Zielinski and Pradal and Gonzalez and ors v France (GC), App no 24846/94, ECHR 1999-VII, 28 October 1999, at 57. 117 Zielinski and Pradal and Gonzalez and ors v France (GC), 28 October 1999, at 57, 59. 118 Gorraiz Lizarraga and ors v Spain, App no 62543/00, ECHR 2004-III, 27 April 2004, at 56, 64–73. 119 Gorraiz Lizarraga and ors v Spain, 27 April 2004, at 70. 120 Zielinski and Pradal and Gonzalez and ors v France (GC), 28 October 1999, at 60. 121 Zielinski and Pradal and Gonzalez and ors v France (GC), 28 October 1999, at 57, 59. 122 National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v United Kingdom, 23 October 1997, at 110–12. 123 Gorraiz Lizarraga and ors v Spain, 27 April 2004, at 70. 124 Melnyk v Ukraine, App no 23436/03, 28 March 2006 (unreported). 125 Melnyk v Ukraine, 28 March 2006, at 30; Saliba v Malta, App no 4251/02, 8 November 2005, at 29–30 (unreported).

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that effectively determines the outcome of a judicial determination of a dispute, prevents proceedings being opened, or renders a final and enforceable decision void, is only allowed when there is a compelling ground of public interest. These limitations that the ECtHR has placed on retrospective legislation should be understood as flowing from legality, even though the Court does not always refer to the quality requirements of legality which it takes into account in the context of the limitation clauses and Articles 5 and 7. Even so, it would be most consistent with the overall system of the Convention for the Court to explicitly review the quality of the law in the context of interferences with the right of access to court. If the ECtHR were to use the requirement of ‘in accordance with the law’, this would best fit the Convention system of human rights protection and would lead to a coherent approach to legality and the limitation of the Convention rights.126

2.4.2 The Essence of the right of access to court To revisit, the right of access to court may be limited, but limitations must have a legitimate aim, the means must be proportionate to the legitimate aim pursued, and the essence of the right of access to court must be upheld.127 The case of Ashingdane v United Kingdom128 (‘the Ashingane case’) is one of the first in which the ECtHR discussed a limitation of the right of access to court. In the context of this case, it developed the criteria that are relevant to deciding whether the right of access to court is arbitrarily restricted.129 The ECtHR found that the degree of access afforded under national legislation must be sufficient to secure an individual’s rights to a court, having regard to the rule of law in a democratic society. The Court noted that the essence of the right must not be impaired, that a limitation of the right must have a legitimate aim, and the means must be proportionate to the aim sought to achieve.130 Consequently, it follows that the ‘rule of law in a democratic society’ demands that the right of access to court can only be restricted in a certain manner. The ECtHR seems to link all three requirements—‘the essence of the right of access’, ‘legitimacy’, and ‘proportionality’—to the rule of law in a democratic society. Nonetheless, to understand the requirements of a legitimate aim and of proportionality in light of the wider notion of ‘democratic society’ is most consistent with the case law concerning the limitation clauses, and not in the light of the rule of law. As was shown in Chapter  3, the proportionality requirement is concerned with the general demands of society, and requires a balance between these demands and the specific right concerned, in light of the aim of the interference. The rule of 126

Concurring opinion of Judge Martens in Geouffre De La Pradelle v France, 16 December 1992. Ashingdane v United Kingdom, 28 May 1985, at 57; Lithgow and ors v United Kingdom (Pl), 8 July 1986, at 194; Claudia Johanna Staal (1995) at 340–41. 128 Ashingdane v United Kingdom (Pl), App no 8225/78, Series B no 76, 12 May 1983. 129 Ashingdane v United Kingdom (Pl), 12 May 1983, at 92. 130 Ashingdane v United Kingdom, 28 May 1985, at 57. See also Waite and Kennedy v Germany (GC), 18 February 1999, at 57. 127

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law, however, is primarily concerned with legality, and not with the proportionality of interferences.131 Thus the requirement that the essence of the right of access to court must not be impaired should especially be understood as derived from the rule of law. Support for this position can be found, first, in the Ashingdane case. Regarding the demand that the essence of the right of access to court must not be impaired, the ECtHR referred back to the Golder case, in which the rule of law was of central importance. Moreover, in later cases, such as the Waite and Kennedy case, the ECtHR found that it had to review whether a degree of access to court that was limited to the possibility of pleading a preliminary issue was compatible with the rule of law.132 In later cases the ECtHR also referred to the rule of law in relation to the question of whether a minimum degree of the right of access to court is assured. Consequently, it can be held that the rule of law requires that the essence of the right of access to court is not impaired. In the case law, three different situations that illuminate the notion that the essence of the right of access must not be impaired can be distinguished. First, the ECtHR has established that access to court which is limited to the right to ask a preliminary question is insufficient to ‘secure the applicant’s “right to a court”, having regard to the rule of law in a democratic society’.133 In the case of Cordova v Italy (No 1)134 the rules concerning parliamentary immunity barred judicial proceedings aimed at securing reparation for the damage caused by an alleged defamation.135 The government argued in this case that there was no interference with the right of access to court because the applicant had been able to start civil proceedings. However, the ECtHR found that access to court that is limited to a preliminary issue constitutes an interference with the right of access to court because the individual must have a clear and practical opportunity to challenge an act interfering with his rights. It derived this view on access to court from the rule of law.136 The Court confirmed this ruling in a later case.137 These rulings could be understood thus: if the right of access to court is limited to the right to ask a preliminary question, the essence of the right to court, and thus also the rule of law, are infringed. Secondly, when reviewing whether interferences with the right of access to court are allowed, the ECtHR has found that it would be contrary to the rule of law if a state were able to remove a whole range of civil claims from the jurisdiction of the courts or confer immunities from civil liability on large groups or categories of persons, without the possibility of review by the ECtHR.138 A comprehensive procedural limitation on the right of access to court should accordingly be understood

131

See Chap 3, sect 5, in the text around n 395. Waite and Kennedy v Germany (GC), 18 February 1999, at 57. 133 Cordova v Italy (No. 1) App no 40877/98, ECHR 2003-I, 30 January 2003, at 52. 134 Cordova v Italy (No. 1) App no 40877/98, ECHR 2003-I, 30 January 2003. 135 Cordova v Italy (No. 1) App no 40877/98, Reports of Judgments and Decisions 2003-I, 30 January 2003, at 50. 136 Cordova v Italy (No. 1), 30 January 2003, at 52. 137 Mizzi v Malta, App no 26111/02, ECHR 2006-I, 12 January 2006, at 80. 138 Cordova v Italy (No. 1), 30 January 2003, at 50; Cudak v Lithuania (GC), 23 March 2010, at 58. 132

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as a contravention of the rule of law, because the essence of the right of access is not upheld. Thirdly, in several cases the ECtHR found it relevant as to whether a reasonable alternative procedure existed to decide if the degree of access to court, limited to a preliminary issue, was compatible with the rule of law. In other words, when the applicant has a reasonable alternative procedure, it could be said that the essence of the right of access to court is upheld. For instance, in relation to a case that concerned parliamentary immunity the ECtHR took into account that the applicant had a reasonable alternative procedure.139 Whether a reasonable alternative means exists for the exercise of this right is also relevant in relation to sovereign immunity limiting access to court. For instance, in McElhinney v Ireland140 (‘the McElhinney case’), one of the reasons for not establishing a breach of the right of access to court was the fact that an alternative judicial remedy was available to the applicant.141 A similar case concerning immunity is the Waite and Kennedy case where the applicants had a ‘reasonable alternative means’ of a judicial procedure which existed within the international organization itself.142 To sum up, the rule of law requires that the essence of the right of access to court is upheld. The essence of this right is impaired when a whole range of civil claims or large groups or categories of persons are barred by procedural rules from access to court. It is also contravened when the right of access is limited to a preliminary question. In other words, access to court must not be completely deprived of all real content. However, when an alternative procedure is available, this can ensure that the essence of the right of access to court is upheld.

2.4.3 The essence impaired Even though the rule of law requires that the essence of the right of access to court is upheld, in several cases the essence of the right was impaired. These cases can thus be criticized from a rule of law perspective. These cases concern, first, sovereign immunity limiting the right of access to court. The case of Fogarty v United Kingdom (‘the Fogarty case’) concerned a woman who could not commence legal proceedings against her former employer because of sovereign immunity.143 In the case of Al-Adsani v United Kingdom, (‘the Al-Adsani case’) the applicant had been denied access to court in the determination of his claims of torture against Kuwait due to sovereign immunity being granted to the State of Kuwait.144 In the McElhinney case the applicant had been unable to pursue action against the United Kingdom for wrongful assault by a soldier.145 139

Cordova v Italy (No. 1), 30 January 2003, at 62–6. McElhinney v Ireland (GC), App no 31253/96, ECHR 2001-XI, 21 November 2001. 141 McElhinney v Ireland (GC), 21 November 2001, at 39. 142 Waite and Kennedy v Germany (GC), 18 February 1999, at 68; see also Beer and Regan v Germany (GC) App no 28934/95, 18 February 1999, at 58 (unreported). 143 Fogarty v United Kingdom (GC), App no 37112/97, ECHR 2001-XI, 21 November 2001. 144 Al-Adsani v United Kingdom (GC), App no 35763/97, ECHR 2001-XI, 21 November 2001. 145 McElhinney v Ireland (GC), 21 November 2001. 140

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In all three cases the ECtHR found the limitation of the right of access to court to be proportionate. However, only in the McElhinney case did the Court find that an alternative judicial remedy was available to the applicant.146 In the cases of Al-Adsani and Fogarty, no alternative judicial procedures were available to the applicants. Moreover, the Strasbourg Court found that the rules on state immunity form an inherent restriction on the right of access to court.147 It attached central importance to the aim of sovereign immunity to promote comity and good relations between states through the respect of another state’s sovereignty. Furthermore, the Court stated that it must take into account the special character of the Convention as a human rights treaty, and noted that it must be interpreted in harmony with international legal rules, of which it forms a part.148 On examination, although the ECtHR has emphasized the importance of access to court for the rule of law in these three cases,149 one could say that in the cases of Al-Adsani and Fogarty the very essence of the right was impaired. Notably, these cases can be criticized from a rule of law perspective for two reasons. First, to regard sovereign immunity as an inherent restriction on the right of access to court conflicts with the rule of law notion that the essence of the right of access must be upheld. Secondly, no alternative judicial remedy was available to the applicant in these cases. These cases can thus be criticized for marginalizing the effective protection of the right of access to court,150 especially given the special position of the ECtHR as an instrument of the European public order.151 Therefore, the review of the limitation of the right of access to court in those cases does not appear to be strict enough.152 The ECtHR should take into account that the rule of law in the context of the Convention opposes arbitrary restrictions of the right of access to court and demands that the essence of the right of access is upheld.153 In the case of Cudak v Lithuania154 the ECtHR refined its case law concerning sovereign immunity. This case concerned a former employee of the Polish embassy in Lithuania. This Lithuanian national had worked as a secretary and switchboard 146

McElhinney v Ireland (GC), 21 November 2001, at 39. Fogarty v United Kingdom (GC), 21 November 2001, at 36; McElhinney v Ireland (GC), 21 November 2001, at 37. 148 McElhinney v Ireland (GC), 21 November 2001, at 36. 149 Fogarty v United Kingdom (GC), 21 November 2001, at 32; McElhinney v Ireland (GC), 21 November 2001, at 33; Al-Adsani v United Kingdom (GC), 21 November 2001, at 52. 150 Dissenting opinion of Judge Loucaides in McElhinney v Ireland (GC), 21 November 2001; R. van Alebeek, The Immunity of States and Their Officials in the Light of International Criminal Law and International Human Rights Law (Leiden, E.M. Meijers Instituut:  2006) at 473; Georg Ress, ‘Das Europarecht vor Dem Europäischen Gerichtshof für Menschenrechte in Strassburg’ in Anna Golze and Edgar Lenski (eds), Die Europäische Verfassung im Globalen Kontext (Baden-Baden: Nomos Verlagsgesellschaft, 2004) at 11. 151 Alexander Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) European Journal of International Law 14(3) at 529–68. 152 For a different opinion, see Christian Maierhöfer, ‘Der EGMR als “Modernisierer” des Völkerrechts?—Staatsimmunität und Ius Cogens auf dem Prüfstand, Anmerkung zu den Urteilen Fogarty, McElhinney und Al-Adsani’ (2002) Europäische Grundrechte-Zeitschrift 29 (15–17) at 396–8. 153 R. van Alebeek (2006) at 465, 473. 154 Cudak v Lithuania (GC), App no 15869/02, 23 March 2010 (not yet reported). 147

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operator until she fell ill as a result of work stress, and was dismissed. She had suffered sexual harassment by one of the members of the diplomatic staff. She commenced a procedure to claim compensation for unlawful dismissal. The Lithuanian courts found that they did not have jurisdiction because the Polish Ministry of Foreign Affairs was able to claim immunity. In this case the ECtHR emphasized the importance of an effective judicial remedy for the rule of law, and found that Lithuania had breached the right of access to court because the limitation was not proportionate and had thus impaired the very essence of the right of access.155 The Court confirmed its earlier judgments that interferences with the right of access to court that are the result of generally recognized rules of public international law on state immunity cannot in principle be regarded as imposing a disproportionate restriction.156 Even so, the Strasbourg Court ensured protection of the right of access to court through a limitation of the scope of these immunities. Of significance to the ruling, too, was the trend in international and comparative law towards limiting state immunity in respect of employment-related disputes.157 On this basis, as well as for the reason that the rule of law demands the effective protection of the right of access to court, the ECtHR established that the limitation impaired the essence of the right of access to court. In later cases, the ECtHR has continued this line of reasoning.158 Where access to court is limited by the political questions doctrine, the ECtHR seems to adopt a lenient standard. In the case of Markovic v Italy159 the applicants were afforded only limited access to a court, because they did not receive a decision on the merits. The ECtHR established that this limitation—based on the political questions doctrine—did not amount to recognition of an immunity, but to a limitation of the substantive right of action in domestic law.160 This case can be criticized on the basis that discretionary powers must be limited by law and subjected to judicial review, especially in cases that concern the political questions doctrine, in order to uphold individual rights.161 In cases that concern limitations of the right of access to court due to parliamentary immunity, the review is also not strict. The ECtHR has found that: . . . a rule of parliamentary immunity, which is consistent with and reflects generally recognised rules within signatory States, the Council of Europe and the European Union, cannot in 155

Cudak v Lithuania (GC), 23 March 2010, at 54, 74. Cudak v Lithuania (GC), 23 March 2010, at 57. 157 The ECtHR referred to the Draft Articles on State Immunity of the International Law Commission and to the Convention on Jurisdictional Immunities of States and their Property and noted that these created exceptions for employment contracts. The Court found that this convention applied to the respondent state under customary international law. Further, on the basis of this convention, immunity did not apply in the case of the applicant because she did not perform any functions related to the exercise of sovereignty by the Polish state; nor could her duties be understood to be of importance for Poland’s security interests. Cudak v Lithuania (GC), 23 March 2010, at 63–72. 158 Wallishauser v Austria, App no 156/04, 17 July 2012, at 59–68 (unreported). 159 Markovic and ors v Italy (GC), App no 1398/03, ECHR 2006-XIV, 14 December 2006. 160 Markovic and ors v Italy, 14 December 2006, at 113–16. 161 Dissenting opinion of Judge Zagrebelsky, joined by Judges Zupančič, Jungwiert, Tsatsa-Nikolovska, Ugrekhelidze, Kovler, and David Thór Björgvinsson in Markovic and ors v Italy, 14 December 2006, at 113–16. 156

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principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6(1).162

The ECtHR attaches importance to the fact that this type of immunity is aimed at the protection of the interests of parliament as a whole. A relevant example is the case of A v United Kingdom. This case concerned an applicant who could not bring defamation proceedings in respect of statements made about her in parliament because of a law on parliamentary immunity. In its argumentation, the Court gave much weight to the aim of protecting free speech in parliament and maintaining the separation of powers between the legislature and the judiciary. The Court found that exceptions to the rule of parliamentary immunity would seriously undermine both.163 It noted the special importance of freedom of expression for an elected representative of the people and found that ‘very weighty reasons must be advanced to justify interfering with the freedom of expression exercised’ in parliament.164 It also found relevant that the rules on immunity attached to statements made during the parliamentary debates were designed to protect the interests of parliament as a whole.165 Furthermore, the ECtHR established that the rules on parliamentary immunity in the United Kingdom were consistent with generally recognized rules within signatory states, the Council of Europe, and the European Union,166 and that victims of defamatory statements are not entirely without means of redress.167 However, this alternative form of redress mainly consisted of seeking contact with (members of ) parliament, while the applicant had already unsuccessfully written to both the Member of Parliament who had issued the defamatory statements and the Prime Minister. Still, the ECtHR found that the application of the absolute rule regarding parliamentary immunity did not restrict the right of access to court in a manner that was disproportionate.168 Consequently, the essence of the right of access to court was not upheld in this case. It must be taken into account that in the cases that concern parliamentary immunity, a conflict arises between the right of access to court, on the one hand, and the separation of powers and democracy, on the other. Parliamentary immunity ensures the freedom of speech in parliament and is thus a vital element of a well-functioning democracy. Also, it would be harmful to freedom of speech in parliament, as well as to the separation of powers, were the judiciary to be given review powers. In conclusion, in the cases that concern parliamentary immunity, a restrictive interpretation of the right of access to court seems to be demanded in order to uphold democracy and the separation of powers. In contrast, in cases that concern sovereign immunities, a stricter review seems required by the rule of law. 162 A v United Kingdom, 17 December 2002, at 83; Cordova v Italy (No. 1), 30 January 2003, at 59–60; Kart v Turkey (GC), App no 8917/05, 3 December 2009, at 106, 112 (not yet reported). 163 A v United Kingdom, 17 December 2002, at 77. 164 A v United Kingdom, 17 December 2002, at 79. 165 A v United Kingdom, 17 December 2002, at 84–5. 166 A v United Kingdom, 17 December 2002, at 80, 81, 83. 167 A v United Kingdom, 17 December 2002, at 86. 168 A v United Kingdom, 17 December 2002, at 87.

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In these cases no rule of law principle warrants a restrictive review of the right of access to court.

2.5 The authority of judicial decisions 2.5.1 Execution of judicial decisions The right to a fair trial also includes the demand that final legal judgments are implemented.169 This demand is not part of the text of Article 6. The ECtHR has broadened the scope of Article 6 to include the demand that final judicial rulings must be executed, by interpreting this article in line with the rule of law.170 The cases that concern respect for final legal rulings can be understood in the light of the right of access to court. Hornsby v Greece171 (‘the Hornsby case’) is the first case in which the ECtHR has expanded Article 6 to include the demand that final legal judgments are implemented.172 The Hornsby case concerned a British couple who wanted to open up an English language school, but they failed to acquire the necessary authorization of the Greek authorities. The authorities had refused them permission because they did not have Greek nationality. Subsequently, the Supreme Administrative Court set aside the rejections of the applicants’ requests, and found that the rejections by the Greek authorities were contrary to the EEC Treaty because they discriminated on the basis of nationality. However, even after these judgments were issued, the Greek authorities still did not grant the applicants permission to open a language school. In the Hornsby case, the Greek government objected to the inclusion of the execution of judgments into Article 6. First, the government argued that the execution of legal judgments is not mentioned in Article 6 and could also not be deduced from the intentions of the drafting authorities. It also argued that the execution of legal judgments is part of the relation between the executive and the judiciary and as such outside the scope of Article 6.173 The ECtHR did not agree, and found that the execution of judgments falls within the scope of Article 6, because otherwise the right of access to court would be illusory. The Court explained that to rule otherwise would lead to situations incompatible with the rule of law. It added that states had undertaken to respect the rule of law when they signed the Convention. Thus the ECtHR argued that the execution of judgments was already part of the original obligations of the contracting states, because this is an integral part of the right to a fair trial.174 The ECtHR did not regard the fact that the execution of judgments is a concern of the executive as problematic, for the reason that the administrative power also has an interest in the 169 Hornsby v Greece, App no 18357/91, Reports 1997-II, 19 March 1997, at 40; Immobiliare Saffi v Italy (GC), App no 22774/93, ECHR 1999-V, 28 July 1999, at 63; Matheus v France, App no 62740/00, 31 March 2005, at 54 (unreported); Assanidze v Georgia (GC), 8 April 2004, at 182–3. 170 Hornsby v Greece, 19 March 1997, at 40. 171 Hornsby v Greece, App no 18357/91, Reports 1997-II, 19 March 1997. 172 Hornsby v Greece, 19 March 1997, at 40. 173 Hornsby v Greece, 19 March 1997, at 39. 174 Hornsby v Greece, 19 March 1997, at 40.

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proper administration of justice.175 In conclusion, the ECtHR established a breach of Article 6(1) of the Convention because the Greek authorities had refrained for more than five years from taking measures to comply with final and enforceable judicial decisions, and thus deprived these judgments of all useful effect.176 The Strasbourg Court has set more detailed requirements for the requirement that final legal judgments are implemented. The Court has established that Article 6(1) allows intervention in the enforcement proceedings of a judicial decision in exceptional circumstances. Even so, such intervention may not result in undue delay; nor may an intervention undermine the substance of the decision.177 In principle, final judicial decisions must be executed completely, flawlessly, and not partially.178 Immobiliare Saffi v Greece179 is an example of a case where the substance of the decision was undermined. In this case the enforcement of an order for possession of an apartment was delayed for eleven years as a result of legislative intervention. The final recovery of the property was brought about by the death of the apartment’s tenant, and not by police assistance. The reason for the delay was the priority given to urgent requests by landlords who needed to recover their property for private use, and the lack of capacity of the police to deal with both urgent and non-urgent cases. The ECtHR established a violation of Article 6(1), and found that the enforcement of the order of possession was unduly delayed.180 Further, the ECtHR has determined that the execution of final judicial rulings is particularly important in the area of administrative law. In this area of law, especially, an individual will lodge an application for judicial review to seek not only the annulment of an administrative decision but, above all, the removal of its effects.181 An example is the case of Okyay v Turkey182 which concerned the national authorities’ failure to implement the domestic courts’ order to shut down three thermal power plants which polluted the environment in a certain area of Turkey. Instead of implementing the courts’ order, the authorities decided the plants should continue to operate. The ECtHR found the authorities’ decision to be unlawful under domestic law and to constitute a circumvention of judicial decisions. The Court found that this situation adversely affected ‘the principle of a law-based State, founded on the rule of law and the principle of legal certainty’.183 To conclude, the ECtHR has broadened Article 6 to include the demand that judicial rulings must be executed. The Court has based this interpretation of Article 6 175

Hornsby v Greece, 19 March 1997, at 41. Hornsby v Greece, 19 March 1997, at 45. However, one must also take into account that the administrative rulings did not require the Greek administration to grant the applicants permission to open up a school, but only judged the refusal to be illegal. For this reason Pettiti dissented (see the dissenting opinion of Judge Pettiti and also the concurring opinion of Judge Morenilla). 177 Immobiliare Saffi v Italy (GC), 28 July 1999, at 74; Matheus v France, 31 March 2005, at 55. 178 Matheus v France, 31 March 2005, at 58. 179 Immobiliare Saffi v Italy (GC), App no 22774/93, ECHR 1999-V, 28 July 1999. 180 Immobiliare Saffi v Italy (GC), 28 July 1999, at 74. 181 Hornsby v Greece, 19 March 1997, at 41; Okyay and ors v Turkey, App no 36220/97, ECHR 2005-VII, 12 July 2005, at 72. 182 Okyay and ors v Turkey, App no 36220/97, ECHR 2005-VII, 12 July 2005. 183 Okyay and ors v Turkey, 12 July 2005, at 73. See also Taşkın and ors v Turkey, App no 46117/99, ECHR 2004-X, 10 November 2004, at 136. 176

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on the rule of law. Interventions are allowed, but they must not undermine the substance of the judicial decision. The demands of execution could, as with the right of access to court, thus be seen as a minimal procedural guarantee to ensure the effectiveness of the right to a fair trial. From a theoretical perspective on the rule of law, the demand that final judicial rulings must be executed is clearly an aspect of the rule of law. The rule of law entails the replacement of private power with public power. A state subject to the rule of law must ensure law and order. This role of the state implicates that individuals should not take the law into their own hands. If individuals are denied the legal assistance of public power, they are denied justice, and this leads to distrust in the law and, eventually, to lawlessness.184

2.5.2 Finality of judicial decisions The ECtHR has established that the right to a fair trial includes the demand that final court judgments may not be disputed. The literal text of Article 6 does not include this requirement. The Court based this interpretation of Article 6 upon the argumentation that the protection of Article 6 would be illusory if it did not demand respect for final judicial rulings. It also noted that any other interpretation of Article 6 would be incompatible with the rule of law as part of the common heritage of the contracting states.185 The ECtHR has stated: ‘One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question.’186 The Court has also explained that the rule of law requires respect for the finality of judicial decisions because the reversal of final judicial decisions would undermine the confidence of the public in the judiciary. The ECtHR has held: ‘The reversal of final decisions would result in a general climate of legal uncertainty, reducing public confidence in the judicial system and consequently in the rule of law.’187 The first case in which the ECtHR interpreted Article 6 to include the requirement that final judgments must be respected is Brumarescu v Romania.188 This case concerned the expropriation of property during the communist period. In 1993 the Bucharest Court of First Instance judged this expropriation to have been illegal. Although this judgment had become final, the Supreme Court of Justice quashed it in 1995 in a review procedure. The Romanian legal system allowed the Procurator-General to challenge final judgments indefinitely. The ECtHR ruled 184 Dissenting opinion of Judge Zupancic in Nuutinen v Finland, App no 32842/96, ECHR 2000-VIII, 27 June 2000. See also Chap 2, sect 3.3, in the text before n 216. 185 Ryabykh v Russia, App no 52854/99, ECHR 2003-IX, 24 July 2003, at 51, 545; Stere and ors v Romania, App no 25632/02, 23 February 2006 (unreported), at 53; Sovtransavto Holding v Ukraine, App no 48553/99, ECHR 2002-VII, 25 July 2002, at 77; Volkova v Russia, App no 48758/99, 5 April 2005 (unreported); Svetlana Naumenko v Ukraine, App no 41984/98, 9 November 2004, at 91–2 (unreported); Kravchenko v Russia, App no 34615/02, 2 April 2009, at 44–6 (unreported). 186 Ryabykh v Russia, 24 July 2003, 51–5; Volkova v Russia, 5 April 2005, at 34–5. 187 Stere and ors v Romania, 23 February 2006, at 53. 188 Brumărescu v Romania (GC), App no 28342/95, ECHR 1999-VII, 28 October 1999.

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that this created legal uncertainty and was contrary to the rule of law. The Court explained that respect for legal judgments is an aspect of the rule of law.189 Once again, it stressed that Article 6 must be interpreted in light of the rule of law as part of the common heritage of the contracting states.190 The Strasbourg Court does allow, under Article 6(1), exceptions to the principle of the finality of judgments to correct judicial errors and miscarriages of justice, and also regarding criminal proceedings, but only when compelling and substantial circumstances exist.191 In principle, the rule of law is opposed to the reopening of judicial proceedings, as this runs counter to legal certainty. However, cases may be reopened if there is a newly discovered circumstance. The reopening may only be exercised for the correction of miscarriages of justice, may not be an appeal in disguise, and may not take place for the sole reason that there are two views on a subject.192 Unlimited time frames for lodging an application for supervisory review are unacceptable to the ECtHR, which follows from the general principle of the rule of law and legal certainty.193 Jurisdictional errors, in principle, are only open to correction by way of supervisory review when the review is intended to rectify an error of fundamental importance to the judicial system.194 Furthermore, interferences with the administration of justice by the legislature by means of retrospective legislation are not allowed by the ECtHR when they are designed to influence the judicial determination of the dispute to which the state was a party.195 An example is the case of Bulgakova v Russia,196 in which the Ministry of Labour and Social Development had issued an instruction which clarified how the law concerning the calculation of pensions had to be applied. The applicant had, in earlier judicial procedures, obtained a final ruling determining her pension. However, a new instruction that had been issued was seen as a newly discovered circumstance by the District Court. The applicant’s case was reopened and the earlier final judgment was repelled. The Strasbourg Court established a breach of Article 6(1) on the basis that the retrospective law which constituted the newly discovered circumstance was issued by the Ministry which was also a party to the proceedings. These circumstances were found to be contrary to legal certainty and the equality of arms.197 To recapitulate, the right to a fair trial includes the demand that final court judgments may not be disputed, based on the rule of law and the effectiveness of the right to a court. Also, this element of the right to a fair trial is a minimum 189

Brumărescu v Romania (GC), 28 October 1999, at 61–2. Brumărescu v Romania (GC), 28 October 1999, at 61. See also Ryabykh v Russia, 24 July 2003, at 161. 191 Asito v Moldova, App no 40663/98, 8 November 2005, at 46 (unreported). See also Pravednaya v Russia, App no 69529/01, 18 November 2004, at 25 (unreported); Popov v Moldova, App no 19960/04, 6 December 2005, at 46 (unreported). 192 Salov v Ukraine, App no 65518/01, ECHR 2005-VIII, 6 September 2005, at 93–6. 193 Ryabykh v Russia, 24 July 2003, at 52; Salov v Ukraine, 6 September 2005, at 93–6. 194 Sutyazhnik v Russia, App no 8269/02, 23 July 2009, at 36–8 (unreported). 195 Pravednaya v Russia, 18 November 2004, at 26. 196 Bulgakova v Russia, App no 69524/01, 18 January 2007 (unreported). 197 Bulgakova v Russia, 18 January 2007, at 44. 190

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standard, because exceptions are allowed under some circumstances. In all cases that concern the finality of judicial decisions, the ECtHR refers to both the rule of law and legal certainty. As explained, legal certainty is a term used to denote legality in the case law.198 The reference to legal certainty also shows the close relation between the requirement to respect final judicial decisions and the quality requirements of legality. In recent cases, the ECtHR has held that conflicting court decisions may be contrary to legal certainty and could lead to a violation of the right of access to court.199 Again a parallel can be drawn to legality, where legality requires the consistency of the law.200

2.6 Analysis In summary, the ECtHR has broadened the scope of Article 6(1) to include access to court, the demand that judicial decisions must be executed, and that the final character of court judgments must be respected.201 All three principles have been derived from the rule of law. The ECtHR has interpreted Article 6(1) in light of the rule of law and on the basis of this interpretation, widened its scope. The Court has also related other specific elements of the right to a fair trial to the rule of law. Even so, the rule of law has not been put forward as a reason to broaden the scope of the right to a fair trial to include other principles such as, for instance, the equality of arms. Based on the rule of law, the ECtHR will independently review the applicability of Article 6(1) and, specifically, whether there is a right recognized under national law and whether there is a criminal charge. States cannot limit their obligations under Article 6 by merely changing their national law. Arguably, the rule of law has also been a reason for widening the scope of the notion of civil rights and obligations to include cases that fall within the range of national administrative law. Furthermore, based on the rule of law, the right of access to court must not be limited in such a manner that the essence of this right is impaired. Also, the right of access to court must not be limited through retrospective legislation, except for reasons of compelling public interest. Still, when the separation of powers or international legal obligations are concerned, limitations of the right of access to court are more easily allowed by the ECtHR. No right of access to court exists for all types of (arguable) violations of Convention rights, but only with regard to cases that concern a criminal charge and civil rights and obligations. The Convention does not guarantee the right of access to court 198

See further Chap 3, sect 2.4, and especially the text around n 61. Nejdet Şahin and Perihan Şahin v Turkey (GC), App no 13279/05, 20 October 2011, at 56–7, 84 (unreported); Albu and ors v Romania, App nos 34796/09 - 34859/09, 10 May 2012, at 34, 38 (unreported). 200 See further Chap 3, sect 4.2.1, and especially the text around n 149. 201 The case law concerning the execution of final judicial rulings is in line with recommendations of the Committee of Ministers, according to which the rule of law demands the enforcement of court judgments to ensure the effectiveness of the right to a fair trial (Committee of Ministers, Recommendation Rec (2003) 17). 199

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regarding the rights of the Convention itself. However, Article 6(1) will be applicable in cases that concern Convention rights such as the right to property and the right to family life, as these rights can be qualified as civil rights.202 It could be argued that, based on the rule of law, the ECtHR should interpret the term ‘civil rights and obligations’ to include all individual rights under the national legal system that fall within the sphere of individual freedom. First, the rule of law and the foreseeability of the case law demands that the term civil rights and obligations is, as far as possible, an autonomous term. To include in that term all contestations which concern individual rights under the national legal system that fall within the sphere of individual freedom would allow an autonomous interpretation of national law.203 Such an understanding of the term civil rights and obligations would thus allow Article 6(1) to offer the best protection against arbitrary interferences with the right of access to court by national authorities, and this interpretation would thus be in accordance with the rule of law. Secondly, in a rule of law system the role of the judiciary in providing effective control over the legality of acts of government in cases that concern individual rights is pivotal. An autonomous understanding of the term ‘civil rights and obligations’ would strengthen the role of the judiciary in reviewing the legality of such acts. As was shown in Chapter 2, judicial safeguards have two different, albeit overlapping, functions. One is to settle disputes and the other is to ensure that government acts within the boundaries set by law.204 In theoretical accounts of the rule of law, both functions are required by the rule of law. The right to a fair trial evidences both functions. The civil limb of the right to a fair trial is concerned with the effectuation of individual rights and the settlement of disputes.205 Ovey and White write: ‘It is evident that this phrase [civil rights and obligations] covers ordinary civil litigation between private individuals . . . .’206 The importance in the case law of the right of access to court to the rule of law also implies the central role of the judiciary to resolve disputes. The second function of the judiciary—control over government through judicial review—is an element of the right to a fair trial. In criminal cases the right of access to court is an important protection against arbitrary interferences by government. However, surprisingly, the ECtHR does not often refer to the rule of law in criminal cases on the right to a fair trial. Also, as was seen in section 2.3.2, the ECtHR has interpreted the term civil rights and obligations in such a manner that Article 6 202 Wolfgang Strasser, ‘The Relationship between Substantive Rights and Procedural Rights Guaranteed by the European Convention on Human Rights’ in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: The European Dimension (Köln: Carl Heymanns Verlag, 1988) at 596. 203 Concurring opinion of Judge Jambrek in Osman v United Kingdom (GC), App no 23452/94, ECHR 1998-VIII, 28 October 1998. In his concurring opinion in the same case, Judge Foighel held similar ideas, although he did not base his argument on the rule of law. He noted that ‘[t]he fundamental nature of an applicant’s right to submit a civil claim to a court cannot be determined exclusively by domestic-law considerations on whether or not such a right exists in a particular set of circumstances.’ 204 See also Chap 2, sect 3.3, in the text below n 212. 205 David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 213. 206 Clare Ovey and Robin C.A. White (2010) at 247.

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increasingly applies to administrative cases. Thus the Convention grants a right to a fair trial in many disputes between individuals and the state.207 This development should be understood as demanded by the rule of law. First, the ECtHR has frequently emphasized the importance of judicial control over the executive, in cases of interferences with individual rights, to the rule of law.208 Secondly, to understand this development as required by the rule of law fits the conception of the rule of law in theory as well as in the legal systems of European states.209 The aspects of Article 6 which the ECtHR has discussed under the heading of the rule of law are formal elements that are concerned with the certainty of the law, such as the requirement that judicial decisions are executed. Thus the rule of law concept is important in the context of Article 6 to ensure an independent scrutiny of national law, such that the right of access to court is not restricted in an arbitrary manner. The ECtHR has also related the rule of law to Article 6 when there is a need to interpret the Article in a broader manner, as in the cases that concern the right of access to court. It has been argued that ‘all specific rights enunciated by article 6 are distinct but stem from the same basic idea which, taken together, make up a single right not specifically defined but well known under the expression of “fair trial”.’210 The Strasbourg Court has noted that the right to a fair trial ‘must be construed in the light of the rule of law’.211 Also, the ECtHR has held Article 6 to reflect the fundamental principle of the rule of law.212 The ECtHR has mostly referred to the rule of law in cases that concern the right of access to court, but also in relation to other aspects of the right to a fair trial. It would be consistent if the ECtHR had also explicitly related the rule of law to elements of the right to a fair trial, such as the right of appeal or the right of a public trial. Also, a surprising finding of a review of the case law is that the ECtHR most frequently refers to the rule of law in relation to access to court in civil cases. However, the guarantees of the right to a fair trial are all the more important in criminal cases. In that area of law, the right to a fair trial offers procedural guarantees against some of the more severe forms of government interference with the life of individuals.

207

David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 222. Klass and ors v Germany (Pl), 6 September 1978, at 55; Silver and ors v United Kingdom, App no 5947/72, Series A  no 61, 25 March 1983, at 90; Rotaru v Romania (GC), App no 28341/95, ECHR 2000-V, 4 May 2000, at 59; Capital Bank Ad v Bulgaria, App no 49429/99, ECHR 2005-XII, 24 November 2005, at 134; Volokhy v Ukraine, App no 23543/02, 2 November 2006, at 52–4 (unreported); CG and ors v Bulgaria, App no 1365/07, 24 April 2008, at 40 (not yet reported). See also Al-Nashif v Bulgaria, App no 50963/99, 20 June 2002, at 123 (unreported); Musa and ors v Bulgaria App no 61259/00, 11 January 2007, at 60–2 (unreported); Bashir and ors v Bulgaria, App no 65028/01, 14 June 2007, at 40, 41 (unreported). 209 See Chap 2, sect 2.4 (especially the text around n 173) and Chap 2, sect 3.3 (in the text at n 212. 210 Olivier Jacot-Guillarmod, ‘Rights Related to Good Administration of Justice’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff Publishers, 1993) at 403. 211 Běleš and ors v Czech Republic, App no 47273/99, ECHR 2002-IX, 12 November 2002, at 49. 212 Sunday Times v United Kingdom (Pl), 26 April 1979 at 55. 208

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The right of access to court is central to a fair hearing and is a minimum requirement without which the right to a fair hearing would not be effective. As was shown, the rule of law requires that the essence of the right of access to court is upheld. In that sense, the rule of law sets a minimum standard for the effective protection of the right to a fair hearing. Such an understanding also fits the importance of judicial safeguards to the rule of law in the case law of the Convention.

3 Judicial Safeguards beyond the Right to a Fair Trial The ECtHR has underlined the importance of judicial safeguards for the rule of law in relation to several articles of the Convention. As explained in Chapter 3, legality requires some form of judicial safeguards where government has discretionary powers.213 Thus judicial safeguards are relevant as a requirement of legality in the context of several articles of the Convention, such as Article 5(1), Article 8, Article 10, and Article 1 of Protocol 1. Section 3.1 will show that the judiciary has a central role in upholding the rule of law which is relevant to all articles of the Convention. Article 5(3), 5(4), and 13 are also specifically concerned with judicial safeguards. Consequently section 3.1 will analyse the relation between the rule of law and judicial safeguards with regard to these articles of the Convention.

3.1 The authority of the judiciary The ECtHR has often established the importance of the judiciary in upholding the rule of law. It has particularly emphasized the importance of public confidence in the legal institutions to uphold the rule of law.214 Both the authority of the judiciary as well as public confidence in the judiciary are seen by the ECtHR as central to the proper fulfilment of the judicial function and thus also to the rule of law.215 The central role of the judiciary is therefore not only felt in relation to the right to a fair trial, which is safeguarded in Article 6, but in relation to all Convention articles. An example is the case of Sunday Times v United Kingdom216 which concerned an interference with the freedom of expression aimed at the protection of the authority of the judiciary. The government had prevented the publication of a newspaper article which concerned the settlement negotiations in an ongoing litigation. As the case concerned Article 10, the ECtHR first established the relevance of Article 6 and, accordingly, the rule of law. It found as follows: The Court first emphasises that the expression ‘authority and impartiality of the judiciary’ has to be understood ‘within the meaning of the Convention’ . . . For this purpose, account must 213

See Chap 3, sect 4.3. Schöpfer v Switzerland, App no 25405/94, ECHR 1998-III, 20 May 1998, at 29–30; Nikula v Finland, App no 31611/96, ECHR 2002-II, 21 March 2002, at 45; Stere and ors v Romania, 23 February 2006, at 53. 215 Nejdet Şahin and Perihan Şahin v Turkey (GC), 20 October 2011, at 57; Falter Zeitschriften GmbH v Austria (No 2), App no 3084/07, 18 September 2012, at 39 (unreported); Albu and ors v Romania, 10 May 2012, at 34, 38. 216 Sunday Times v United Kingdom (Pl), App no 6538/74, Series A no 30, 26 April 1979. 214

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be taken of the central position occupied in this context by Article 6, which reflects the fundamental principle of the rule of law . . . The phrase ‘authority of the judiciary’ includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; further, that the public at large have respect for and confidence in the courts’ capacity to fulfil that function.217

In later cases the Court has also underlined the importance of public confidence in the courts and has emphasized that courts have a fundamental role in a state based on the rule of law, as guarantors of justice.218 Furthermore, it has established that lawyers have a ‘central position in the administration of justice as intermediaries between the public and the courts’. They are expected to ‘contribute to the proper administration of justice, and thus to maintain public confidence therein’.219

3.2 Judicial safeguards protecting the right to liberty Especially when interferences with the right to liberty are concerned, the role of the judiciary is pivotal. Subparagraphs 3 and 4 of Article 5 are particularly concerned with judicial safeguards. Article 5(3) requires that an individual in pre-trial detention must be brought promptly before a judge or judicial officer to guarantee prevention of ill-treatment and unjustified interference with individual liberty. Article 5(4) entitles all arrested or detained persons to challenge the lawfulness of his or her deprivation of liberty in a court. Article 5(3) thus only applies in criminal cases, whereas Article 5(4) also applies to other forms of detention. Judicial control in the event of a deprivation of liberty is first and foremost a protection of the individual against arbitrary interferences by the executive with his or her rights. It is thus clearly central to the rule of law.220 The ECtHR has in numerous cases underlined the importance of judicial control to the rule of law when the right to liberty is concerned. It has stated: Judicial control of interferences by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5(3), which is intended to minimise the risk of arbitrariness. Judicial control is implied by the rule of law, ‘one of the fundamental principles of a democratic society . . . , which is expressly referred to in the Preamble to the Convention’.221

217

Sunday Times v United Kingdom (Pl), 26 April 1979, at 55. Haes and Gijsels v Belgium, App no 19983/92, ECHR 1997-I, 24 February 1997, at 37. See also Steel and ors v United Kingdom, App no 24838/94, ECHR 1998-VII, 23 September 1998, at 107; Stere and ors v Romania, 23 February 2006, at 53. 219 Schöpfer v Switzerland, 20 May 1998, at 29; Nikula v Finland, 21 March 2002, at 45. 220 P. van Dijk (1993) at 379; separate opinion of Judge Martens in Fischer v Austria, 26 April 1995; Klass and ors v Germany (Pl), 6 September 1978, at 55. 221 Brogan and ors v United Kingdom (Pl), App no 11209/84, Series A  no 145-B, 29 November 1988, at 58; Brannigan and McBride v United Kingdom (Pl), App no 14553/89, Series A no 258-B, 26 May 1993, at 48. See also Aksoy v Turkey, App no 21987/93, ECHR 1996-VI, at 76; Sakik and ors v Turkey, App no 23878/94, ECHR 1997-VII, 26 November 1997, at 44; Dikme v Turkey, App no 20869/92, ECHR 2000-VIII, 11 July 2000; İğdeli v Turkey, App no 29296/95, 20 June 2002, at 27 (unreported); Filiz and Kalkan v Turkey, App no 34481/97, 20 June 2002, at 23 (unreported); 218

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The most important guarantee of Article 5(3) is to ‘be brought promptly before a judge’. The ECtHR has explained the importance of the strict time constraints imposed by Article 5(3) as guarantees that uphold the rule of law.222 The cases where the Strasbourg Court has noted the importance of judicial control to the rule of law all concern Article 5(3), and not Article 5(4). Still, it can be assumed that the ECtHR attaches the same importance to judicial control as safeguarded by Article 5(3) as to judicial control as safeguarded by Article 5(4). The ECtHR has given priority to judicial control of the right to liberty over public confidence in the judiciary. In the case of Brogan v United Kingdom223 which concerned the detention of terrorist suspects, the United Kingdom was reluctant to bring the suspects before the judiciary. The court proceedings would have to be held behind closed doors, and neither the detained person nor his legal advisors could be present, since the police could not bring out the evidence in a public trial.224 Secret proceedings were seen by the UK government to harm the image of the judiciary. However, the ECtHR did not agree and stressed the importance of judicial control.225 Accordingly, in this case the Court gave precedence to judicial control where the liberty of individuals was concerned over the possible damage that secret proceedings would inflict upon the confidence of the public in the legal institutions. However, the ECtHR could have weighed the interests that were at stake in this case more explicitly and paid more attention to the arguments of the UK government, which included legitimate rule of law concerns.226

3.3 The right to an effective remedy Article 13 ensures individuals a right to an effective remedy in the domestic legal order in the event of an arguable violation of a Convention right. Article 13 does not necessarily require a judicial authority to provide the effective remedy. Still, the powers and authority of the institution that provides a remedy are taken into account by the ECtHR to decide whether a remedy is effective. A remedy by a judicial authority satisfies the right to an effective remedy more readily than a remedy by a non-judicial authority.227

Haci Özen v Turkey, App no 46286/99, 21 April 2007, at 83 (unreported); Estrikh v Latvia, App no 73819/01, 18 January 2007, at 115 (unreported); Kolevi v Bulgaria, App no 1108/02, 5 November 2009, at 163 (unreported). 222 Nechiporuk and Yonkalo v Ukraine, App no 42310/04, 21 April 2011, at 214 (unreported). 223 Brogan and ors v United Kingdom (Pl), App no 11209/84, Series A no 145-B, 29 November 1988. 224 Brogan and ors v United Kingdom (Pl), 29 November 1988, at 56. 225 Brogan and ors v United Kingdom (Pl), 29 November 1988, at 58, 61–2; R.A. Lawson and H.G. Schermers (1997) at 294. 226 In his dissenting opinion, Judge Pettiti criticized the view of the government on the difficulty of reconciling in camera proceedings to the perceived independence of the courts and thus to public confidence in the rule of law. He argued that there are procedural methods available to ensure the non-disclosure of vital information during court proceedings (Brannigan and McBride v United Kingdom (Pl), 26 May 1993). 227 Silver and ors v United Kingdom, 25 March 1983, at 67.

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The right to an effective remedy has a special position in the Convention because it promotes the subsidiary role of the ECtHR.228 This Article grants individuals a minimum level of procedural safeguards in the case of arguable interferences by governments with their Convention rights. Thus the right to an effective remedy is a minimal right to a form of judicial review. Through this right to an effective remedy at the national level, national authorities should ideally have the opportunity to remedy defects in the level of protection of Convention rights in the national sphere. Thus the Article grants a minimum level of a form of judicial review which furthers the level of protection of Convention rights on the national level. In the case law, a development towards a more autonomous role of the right to an effective remedy in relation to the other articles of the Convention can be seen. The ECtHR has interpreted Article 13 also to apply in cases where an individual only has an arguable grievance of a Convention right.229 The case of Klass v Germany230 was the first in which the Strasbourg Court decided that the applicability of the right to an effective remedy does not depend upon the existence of an actual breach of another Convention right.231 Surprisingly, in this ruling the ECtHR did not mention the rule of law as an argument to broaden the scope of Article 13. Given the importance of judicial safeguards for the rule of law, it would have been logical if the ECtHR had linked this ruling to the rule of law.232 In contrast, in Kudła v Poland 233 (‘the Kudła case’), the ECtHR did mention the rule of law. This was the first case in which it reviewed a case under Article 13 after a review under Article 6. The case concerned the length of procedures. First, the Court established a breach of Article 6 because the length of proceedings was not reasonable. Next, it found it to be necessary also to examine the complaint under Article 13 and review whether the applicant had had an effective remedy to complain of the length of the national proceedings. The ECtHR found that an important danger exists ‘for the rule of law within national legal orders when “excessive delays in the administration of justice” occur “in respect of which litigants have no domestic remedy” ’234 Thus in the ruling in the Kudła case the ECtHR emphasized the primary responsibility of states to ensure that effective review procedures exist in case of breaches of Convention rights.235 As the ECtHR referred to the rule of law 228 Clare Ovey and Robin C.A. White (2010) at 131; David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 557. 229 Klass and ors v Germany (Pl), 6 September 1978, at 64; Boyle and Rice v United Kingdom, (Pl), App nos 9658/82 and 9659/82, 41 DR 91, 7 May 1986, at 72–3; Boyle and Rice v United Kingdom (Pl), App nos 9658/82 and 9659/82, Series A no 131, 27 April 1988, at 52. 230 Klass and ors v Germany (Pl), App no 5029/71, Series A no 28, 6 September 1978. 231 Klass and ors v Germany (Pl), 6 September 1978, at 64. The ECtHR here followed the earlier minority opinion of the EComHR. Gerhard Klass and ors v Federal Republic of Germany (Pl), App no 5029/71, Series B no 26, 9 March 1977 (separate opinion of Mr Trechsel, joined by Mr Frowein). 232 The EComHR has noted that art 13 holds a key role in the Convention protection system, because it ‘requires the provision of national safeguards against the misuse of power.’ Thus it has implicitly established the relevance of art 13 to the rule of law. Boyle and Rice v United Kingdom (Pl), 6 March 1985, at 73. 233 Kudła v Poland (GC), App no 30210/96, ECHR 2000-XI, 26 October 2000. 234 Kudła v Poland (GC), 26 October 2000, at 148. 235 Kudła v Poland (GC), 26 October 2000, at 152; J.G.C. Schokkenbroek, ‘Effectief Rechtsmiddel/ Katern 3.13’ in A.W. Heringa (ed), EVRM R&C (The Hague: SDU Uitgevers, 2002) at 17.

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in the Kudła case, the rule of law appears to be an underlying reason to interpret Article 13 in such a manner that this right has achieved an independent role. Similar to the case law concerning the right to a fair trial where the ECtHR requires the execution of judgments based on the rule of law, the Court also demands, in the context of Article 13, the implementation of remedies based on the rule of law.236 Thus the rule of law opposes arbitrary interferences with the right to an effective remedy. In that sense, the rule of law sets a minimum standard to ensure an effective remedy. In the case of Öneryıldız v Turkey, the ECtHR interpreted Article 13 to include the requirement of the execution of remedies, based on the rule of law.237 This case concerned an explosion of methane from a rubbish dump which resulted in a landslide destroying several dwellings, including that of the applicant, and killing nine of his family members. In administrative proceedings against the responsible authorities, the applicant was awarded compensation for the damage caused by the accident. This award was never paid to the applicant.238 The ECtHR ruled that the compensation proceedings did not provide the applicant with an effective remedy. It also took into account that the proceedings took almost five years. The Court considered the ineffectiveness of the judicial proceedings to be contrary to the rule of law, and established a breach of Article 13.239 The delayed implementation, or even non-implementation, of a remedy may be justified under Article 13, but the ECtHR has not clarified the conditions under which this could be the case.240 In any event, the requirement of implementation is not a strict requirement, similar to the requirement of the execution of judicial decisions in the context of the right to a fair trial. However, the uncertainty of whether judicial decisions will be executed, due to the fact that the administrative authorities need not await the outcome of judicial procedures, was sufficient reason to establish a breach of Article 13 in the case of Čonka v Belgium.241 The Strasbourg Court decided in this case that a mere statement of intent or a practical arrangement was insufficient for the demands of the rule of law.242 The facts concerned judicial review procedures before the Belgium Conseil d’État against deportation orders by Slovakian refugees of Roma origin. The applicants had requested, but were refused, political asylum in Belgium. Ultimately the applicants were deported back to Slovakia by means of a collective repatriation after having stayed six days in a closed transit centre. The applicants complained that no effective remedy was available to complain of the alleged violations of Article 4 of Protocol 4, which

236 The ECtHR also referred to the case law concerning the right to a fair trial in a case that concerned the implementation of a remedy (Öneryıldız v Turkey (GC), App no 48939/99, ECHR 2004-XII, 30 November 2004, at 152). 237 Öneryıldız v Turkey (GC), 30 November 2004, at 152; Kaić and ors v Croatia, App no 22014/04, 17 July 2008, at 40 (unreported). 238 Öneryıldız v Turkey (GC), 30 November 2004, at 152. 239 Öneryıldız v Turkey (GC), 30 November 2004, at 152. 240 Kaić and ors v Croatia, 17 July 2008, at 41. 241 Čonka v Belgium, App no 51564/99, ECHR 2001-I, 5 February 2002. 242 Čonka v Belgium, 5 February 2002, at 83.

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forbids the collective expulsion of aliens. Although the applicants could make use of the extremely urgent procedure before the Conseil d’État, the law afforded no guarantee that the administrative authority would await the Conseil d’État’s decision before executing a deportation order. The ECtHR established a breach of Article 13 in this case because the implementation of the remedy was too uncertain.243

3.4 Analysis To recapitulate, the judiciary has a central role in the Convention system—to uphold the rule of law—and the authority of the judiciary is of importance to all Convention rights. Article 5, paragraphs 3 and 4 are especially concerned with judicial safeguards. In the context of these articles, the link between the rule of law and judicial safeguards is obvious and the ECtHR has continuously asserted this link. It has interpreted Article 13 in a very similar manner to Article 6, because the Court has clarified that the rule of law demands that the executive ensures the implementation of remedies. Article 5 and Article 13 are both aimed at ensuring that government keeps within the boundaries of the law. Thus they both concern the function of the judiciary to review acts of government. In the case law, this function is central to the rule of law. We have seen that the ECtHR has held that the authority of courts as guarantors of justice must be upheld in a state based on the rule of law.244 Also, the Court has repeatedly held, in cases where government is given discretionary powers by law to interfere with the Convention rights, that: [t]he rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.245

As we have seen, where government is given discretionary powers by law to interfere with the Convention rights, legality includes a requirement that judicial safeguards must exist to control this discretionary power.246 Thus, also in this context, judicial safeguards are important to ensure that government remains within the boundaries of the law. The form that judicial safeguards should have differs considerably in relation to the different articles of the Convention. Article 5, paragraphs 3 and 4 set strict time constraints which are the central procedural guarantee of these provisions. Such time constraints are not found in the other articles. The strict nature of 243

Čonka v Belgium, 5 February 2002, at 79–85. Haes and Gijsels v Belgium, 24 February 1997, at 37. See also Steel and ors v United Kingdom, 23 September 1998, at 107 and Stere and ors v Romania, 23 February 2006, at 53. 245 Klass and ors v Germany (Pl), 6 September 1978, at 55; Silver and ors v United Kingdom, 25 March 1983, at 90; Rotaru v Romania (GC), 4 May 2000, at 59; Capital Bank Ad v Bulgaria, 24 November 2005, at 134; Volokhy v Ukraine, 2 November 2006, at 52–4; CG and ors v Bulgaria, 24 April 2008, at 40. See also Al-Nashif v Bulgaria, 20 June 2002, at 123; Musa and ors v Bulgaria, 11 January 2007, at 60–2; Bashir and ors v Bulgaria, 14 June 2007, at 40, 41. 246 See Chap 3, sect 4.3. 244

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Article 5 fits the importance of judicial review over interferences with the right to liberty, which have severe impact on the individual and therefore require strict and effective safeguards. In comparison, the right to an effective remedy has a very different function, because it emphasizes the subsidiary role of the Convention. Also, Article 13 is broadly worded and does not set strict requirements to which a remedy must conform so as to be seen as sufficiently effective. The right to an effective remedy does not accord the individual a very strong type of judicial control. In fact, even a non-judicial authority may be sufficient for Article 13. This level of protection fits the residual nature of the Article, given that it applies to arguable interferences with all Convention rights. Also, the judicial safeguards that are required in the context of the review of legality set a lower standard, because only in the last resort must control be exercised by the judiciary.247

4 Separation of Powers and Independent Judiciary in the Case Law 4.1 The growing importance of the separation of powers doctrine From a theoretical perspective, some functional separation of powers must be understood as an element of the rule of law.248 Thus the rule of law implies that different powers of government perform the functions of framing new laws, adjudicating, and executing the law. In the case law, the term ‘separation of powers doctrine’ has assumed growing importance.249 However, notwithstanding this, its role remains limited. The separation of powers doctrine has played a role of some significance in four different areas: the discretionary power of the executive in sentencing issues, parliamentary immunity, the freedom of speech of a civil servant, and consecutively exercised advisory and judicial functions. First, in the case Stafford v United Kingdom250 (‘the Stafford case’) which was based on the separation of powers doctrine, the ECtHR found fault with the far-reaching powers of the Secretary of State of the United Kingdom to decide on the length of the punitive element of a sentence (the tariff) and also on whether or not to release a prisoner after the tariff part of the sentence had expired.251 The ECtHR found that the executive must not be placed in a position to override the advice of the Parole Board, and neither should the executive be able to deviate from the established practice of release after the punitive term of a punishment was over.252 247

See Chap 3, sect 4.3, in the text around n 269. See Chap 2, sect 4.1, in the text around n 270. 249 Stafford v United Kingdom (GC), App no 46295/99, ECHR 2002-IV, 28 May 2002, at 78. 250 Stafford v United Kingdom (GC), App no 46295/99, ECHR 2002-IV, 28 May 2002. 251 Stafford v United Kingdom (GC), 28 May 2002, at 78. 252 Stafford v United Kingdom (GC), 28 May 2002, at 78; Benjamin & Wilson v United Kingdom, App no 28212/95, 26 September 2002, at 36 (unreported). 248

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More specifically, according to the ruling the separation of powers demands an independent and impartial tribunal to fix the tariff, rather than a member of the executive.253 In addition, the Court decided that the decision of the Secretary of State ran counter to the rule of law, because the continued detention was not based on consideration of risk and dangerousness and was unrelated to the original murder conviction. Thus the detention was found to be arbitrary, because there was insufficient causal connection between the detention and the conviction.254 Although the ECtHR referred to both the rule of law and the separation of powers in the Stafford case decision, these two concepts had a different meaning and effect. The rule of law in this case was mentioned in relation to the specific requirement that individuals can only be detained when they are convicted and not related to the separation of powers doctrine. In a second line of cases, the ECtHR decided that parliamentary immunity in principle is not a disproportionate restriction on the right of access to court.255 It stressed the importance of parliamentary immunity to protect free speech in parliament and maintain the separation of powers between the legislature and the judiciary.256 In these cases, the ECtHR attached different functions to the rule of law and the separation of powers. The separation of powers is a reason to institute parliamentary immunity. The limitation of access to court could be allowed because of the legitimacy of the aims pursued, namely, to preserve the integrity of parliament and protect the opposition.257 The rule of law, on the other hand, is an argument against the procedural bar on access to court.258 When the ECtHR ruled on the proportionality of the restriction of the right of access to court, it balanced the rule of law (as access to court) and the separation of powers.259 Thirdly, the importance of the separation of powers doctrine may affect the level of protection accorded to individuals under the Convention. An example is the case of Guja v Moldova260 (‘the Guja case’) which concerned a restriction of the freedom of expression of a civil servant. The applicant was the former head of the press department of the Prosecutor General’s Office. He had been dismissed after having disclosed letters to the press that were evidence of interference by politicians into the Moldovan criminal justice system. In deciding whether the interference was proportionate, the ECtHR took into account the public interest in the information. In this

253

Easterbrook v United Kingdom, App no 48015/99, 12 June 2003, at 28 (unreported). Stafford v United Kingdom (GC), 28 May 2002, at 82. 255 A v United Kingdom, 17 December 2002, at 88; Cordova v Italy (No. 1), 30 January 2003, at 60; Kart v Turkey (GC), 3 December 2009, at 80. 256 A v United Kingdom, 17 December 2002, at 77. 257 Kart v Turkey (GC), 3 December 2009, at 112. 258 A v United Kingdom, 17 December 2002, at 63. 259 The approach of the ECtHR can be contrasted with the views submitted by the Italian government in this case. The government submitted that parliamentary privilege is a fundamental aspect of the separation of powers and the rule of law, both of which are political traditions upon which the Convention and the Council of Europe were founded. The Italian government thus saw the rule of law and the separation of powers as setting the same requirements (A v United Kingdom, 17 December 2002, at 54). 260 Guja v Moldova (GC), App no 14277/04, 12 February 2008 (not yet reported). 254

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respect it found relevant that the disclosed information had a bearing on the separation of powers. The Court noted that the separation of powers is an important issue in a democratic society, in which the public has a legitimate interest in being informed.261 While reports by non-governmental organizations that were quoted in the Guja case decision discussed the pressure on the separation of powers as a challenge to the rule of law,262 the ECtHR did not refer to the rule of law. Fourthly, in several cases the ECtHR has reviewed whether a procedure before administrative courts that consecutively exercised advisory and judicial functions conformed to the requirements of impartiality of Article 6.263 The ECtHR has mentioned the separation of powers doctrine in some of these decisions,264 but it has not derived any concrete results from the separation of powers doctrine in these cases. The Court expressly noted that the growing importance of the separation of powers doctrine does entail obligations on the part of states to comply with theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. However, the ECtHR will analyse the case on the basis of the ‘appearance’ of independence, or the requisite ‘objective’ impartiality.265 To sum up, the effect of the separation of powers is, first, that the Convention does not allow the executive to take sentencing decisions, because these are seen as a judicial task. Further, the separation of powers exerts influence on the determination of the scope of Convention rights. In cases that concern parliamentary immunity, the separation of powers is a reason for allowing restrictions on the right of access to court. Also, in another case, the separation of powers affected the level of protection of the freedom of speech. Besides, the ECtHR has found that the separation of powers doctrine does not determine the scope of state obligations under the Convention in an abstract manner. States are namely not required to comply with theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. No clear picture concerning the meaning of the separation of powers doctrine arises out of the case law. Where the national separation of powers has implications for the protection of Convention rights, it is inevitable for the ECtHR to take these implications into account. However, to do so is something very different from setting requirements concerning the manner in which the powers of government must be organized. The limited role of the separation of powers doctrine fits both the subsidiary role of the Convention protection mechanism and the diversity of the domestic forms of the national separation of powers. On the basis of the cases in which the separation of powers doctrine is mentioned by the ECtHR, the doctrine does not seem to be an element of the rule of law 261

Guja v Moldova (GC), 12 February 2008, at 88. Guja v Moldova (GC), 12 February 2008, at 40–1. 263 Procola v Luxembourg, App no 14570/89, Series A no 326, 28 September 1995, at 45; Kleyn and ors v Netherlands (GC), App no 39343/98, ECHR 2003-VI, 6 May 2003, at 193; Pabla Ky v Finland, App no 47221/99, ECHR 2004-V, 22 June 2004, at 29. 264 Namely those issued after the Stafford case decision, in which case the separation of powers doctrine was first mentioned by the ECHR. 265 Pabla Ky v Finland,22 June 2004, at 29. See also Kleyn and ors v Netherlands (GC), 6 May 2003, at 193. 262

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concept in the context of the Convention. In the cases concerning parliamentary immunity, the separation of powers and the rule of law even have conflicting aims. Even so, the independence of the judiciary is seen as an element of the rule of law in the case law, as will be discussed in section 4.2. Aside from those cases where the ECtHR explicitly names the separation of powers doctrine, the doctrine is relevant in many cases. One example is the group of cases where the ECtHR has established the importance of judicial review over acts of the executive. They concern the separation of powers. Also, the central position of the judiciary to interpret the law is a reflection of the Court’s perception of the separation of powers doctrine. As explained in Chapter 3, the Court reviews foreseeability in a lenient manner where interpretative case law explains the meaning of a national law. Apparently the ECtHR assigns a central role to the judiciary in the domestic legal order. However, the Court has not mentioned the separation of powers in relation to such issues. In this research, these matters have been analysed in more detail under the heading of legality and judicial safeguards.266

4.2 A general standard of independence The independence of the judiciary is one of the requirements of the rule of law in the context of the Convention. The case of Assanidze v Georgia267 (‘the Assanidze case’) is the primary example where the ECtHR has described the independence of the judiciary as an element of the rule of law. The Court stated in this case that the legislature should not interfere with the administration of justice with the intention to influence the outcome of the dispute. Furthermore, non-judicial authorities should not question judicial rulings or prevent their execution.268 Among other things, the Assanidze case concerned a parliamentary committee set up to inquire into a specific procedure for granting a pardon to Assanidze. This committee criticized the final judicial judgments that were made regarding the granting of the pardon. The committee also took into account other criminal proceedings against Assanidze, unrelated to the presidential pardon. The committee found fault with the judgment in which Assanidze was acquitted and called for a reopening of the trial against him. Subsequently, the president of the Supreme Court of Georgia criticized the report of the parliamentary committee and found that it was contrary to the rule of law, because it was in breach of the separation of powers to criticize final judgments.269 The ECtHR looked at the independence of the judiciary as part of the discussion of the exhaustion of domestic remedies. The government had stated that the applicant had failed to exhaust all local remedies, since the report of the Parliamentary Committee had suggested that his trial should be reopened. The ECtHR noted that it would be contrary to the rule of 266 See Chap 3, sect 3.1, in the text around n 76; Chap 3, sect 4.2.2, in the text around n 184; and Chap 3, sect 4.4.1, in the text around n 314. 267 Assanidze v Georgia (GC), App no 71503/01, ECHR 2004-II, 8 April 2004. 268 Assanidze v Georgia, 8 March 2004, at 129–30. 269 Assanidze v Georgia, 8 March 2004, at 91.

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law when ‘the legislation or practice of a Contracting Party were to empower a non-judicial authority, no matter how legitimate, to interfere in court proceedings or to call judicial findings into question’. The Court also found that ‘the principle of legal certainty—one of the fundamental aspects of the rule of law—precluded any attempt by a non-judicial authority to call that judgment into question or to prevent its execution.’270 The case of Assanidze thus shows that the rule of law and legal certainty demand the independence of the judiciary. In the Golder case—where the right to a fair trial was for the first time interpreted to include the right of access to court—the Court also underlined the importance of an independent judiciary. Access to court also ensures access to independent courts. The ECtHR has found that without access to court, a state could ‘do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government.’271 The rule of law requires the judiciary to be independent from the legislature as well as of the executive. As we have seen, Article 6 requires that final judicial decisions must be respected and executed. Both requirements are at the same time elements of the right of access to court as well as aspects of the independence of the judiciary. Article 6(1) includes the demand that judicial decisions must be executed. As was described in section 2.5.1, the ECtHR has derived this requirement of Article 6 from the rule of law. This requirement must be seen as an aspect of the more general demand that the judiciary must be independent from the executive. The executive must respect the outcome of a trial before a judicial organ and may not refuse to execute the decision. Any unwillingness on the side of government to execute judicial decisions and disrespect of national authorities for the finality of judicial decisions must be understood as undermining the independence and authority of the judiciary. Also, Article 6(1) includes the demand that the finality of judicial decisions must be respected, as described in section 2.5.2. Retrospective legislation that is intended to influence the outcome of judicial proceedings has been judged to be contrary to the rule of law.272 Such interference constitutes an infringement of the independence of the judiciary by the legislature.273 Thus, this requirement is an aspect of the more general demand that the judiciary must be independent from the legislature. To conclude, both the requirement of the execution of judicial decisions and the prohibition of retrospective legislation interfering with a final judicial ruling are derived from the rule of law. The fact that these elements are derived from the rule of law is also an argument to conclude that the independence of the judiciary must be understood as an element of the rule of law in the context of the Convention. However, the rule of law appears to set only quite general requirements to the 270

Assanidze v Georgia, 8 March 2004, at 129–30. Golder v United Kingdom (Pl), 21 February 1975, at 35. 272 National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v United Kingdom, 23 October 1997, at 110. 273 Joint partly dissenting opinion of Judges Rozakis, Sir Nicolas Bratza, Bonello, Loucaides, and Jočienė in Maurice v France (GC), 6 October 2005, at 5. 271

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independence of the judiciary. As will be seen, the more detailed fair trial requirements of independence and impartiality have not often been related to the rule of law.

4.3 Independence and impartiality From a theoretical perspective, the independence of the judiciary—both from the parties to the dispute as well as from the other powers of government—must be seen as an element of the rule of law. Independence from the parties to the dispute would normally be termed as ‘impartiality’. It would seem logical to understand the term ‘independence’ mainly as independence from the other powers of government. The fair trial obligation of Article 6 includes a demand that a tribunal is independent and impartial. Thus Article 6 contains a specific Convention standard for the independence of the judiciary. However, independence and impartiality are, in the case law, difficult to separate. Impartiality is divided into subjective and objective impartiality. Subjective impartiality entails that a national judge must not be personally prejudiced.274 In the case law, the requirements of objective impartiality and independence are often difficult to separate.275 Objective impartiality entails that there must not be objective reasons why one could doubt the impartiality of a national judge. These objective reasons can refer to the organizational structure of a tribunal.276 Independence is mostly concerned with institutional safeguards, such as the appointment of the judges, the terms of office, their irremovability, and the impression of independence.277 Thus both objective impartiality and the independence requirement are concerned with institutional safeguards and the organizational structure of the judiciary.278 The ECtHR has only related the impartiality of the judiciary to the rule of law in the case of Kyprianou v Cyprus279 (‘the Kyprianou case’) which concerned contempt of court proceedings. The same judges—in respect of which the applicant allegedly had committed contempt—had tried, convicted, and sentenced the applicant. For this reason, the Court judged that the national court had failed to meet the required Convention standard of impartiality under the objective test.280 It judged that the impartiality of the judiciary is an important aspect of the legal system, and the rule of law demands that a judge must be considered impartial 274 The ECtHR rarely establishes a breach of the subjective impartiality requirement. Johan van de Lanotte and Yves Haeck (2004) at 498. 275 A.W. Heringa, J.G.C. Schokkenbroek, and J. van der Velde, ‘Art. 6:  Eerlijk Proces’ in A.W. Heringa, J.G.C. Schokkenbroek, and J. van der Velde (eds), EVRM Rechtspraak en Commentaar (The Hague:  Sdu Uitgevers, 2004) section (‘Katern’) 3.6 at 1, 11; Johan van de Lanotte and Yves Haeck (2004) at 498. 276 David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 291. 277 A.W. Heringa, J.G.C. Schokkenbroek and J. van der Velde (2004) at 2–6; David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 286–90. 278 A.W. Heringa, J.G.C. Schokkenbroek, and J. van der Velde (2004) at 11; Johan van de Lanotte and Yves Haeck (2004) at 498. 279 Kyprianou v Cyprus (GC), App no 73797/01, ECHR 2005-VIII, 15 December 2005. 280 Kyprianou v Cyprus (GC), 15 December 2005, at 128.

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and his judgments binding until a higher court has established the unfairness of the proceedings.281 Thus the ECtHR described the objective test of impartiality as derived from the rule of law. Impartiality here concerned a situation whereby a judge gave a judgment in his own case. Accordingly, this case was concerned with the independence of the judiciary from the parties to the dispute and, as such, with the integrity of the judicial power itself. In the case law, the ECtHR has only set a very general standard for the independence of the judiciary from the other powers of government. As already noted, it has emphasized that the separation of powers doctrine does not require states to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction.282 The Court also stated that the separation of powers is not decisive in the abstract.283 An example is the case of Sacilor Lormines v France284 which concerned the concurrent exercise of judicial and administrative functions of the French Conseil d’État. The ECtHR argued the case under the heading of the ‘appearance of independence’.285 The applicant argued his case mainly under the heading of the separation of powers. The ECtHR emphasized that the Convention does not require states to comply with any theoretical constitutional concepts regarding the relation between the executive and the judiciary. Also, it stated that the separation of powers is not decisive in the abstract.286 The ECtHR found most relevant whether the different divisions of the Conseil d’État had been concerned with ‘the same case’.287 In the case of Pabla Ky v Finland288 the ECtHR also noted that it would analyse the case on the basis of the ‘appearance’ of independence, or the requisite ‘objective’ impartiality.289 What was relevant was whether members of parliament had taken part in earlier deliberations on the same issue,290 and whether the advisory and adjudicative divisions of the highest administrative organ had been concerned with ‘the same case’.291 Even though the requirement of independence sets only an abstract standard, it has had much influence on the organization of the judiciary in the member states. On the basis of the review of independence and impartiality, the ECtHR has influenced the national administrative procedures. As a result, administrative review proceedings have been reformed in several states.292

281

Kyprianou v Cyprus (GC), 15 December 2005, at 119. Kleyn and ors v Netherlands (GC), 6 May 2003, at 193; Pabla Ky v Finland, 22 June 2004, at 29; Sacilor Lormines v France, App no 65411/01, ECHR 2006-XIII, 9 November 2006, at 71. 283 Sacilor Lormines v France, 9 November 2006, at 71. 284 Sacilor Lormines v France, App no 65411/01, ECHR 2006-XIII, 9 November 2006. 285 Sacilor Lormines v France, 9 November 2006, at 71–4. 286 Sacilor Lormines v France, 9 November 2006, at 71. 287 Sacilor Lormines v France, 9 November 2006, at 73. 288 Pabla Ky v Finland, App no 47221/99, ECHR 2004-V, 22 June 2004. 289 Pabla Ky v Finland, 22 June 2004, at 29. 290 Pabla Ky v Finland, 22 June 2004, at 34. 291 Sacilor Lormines v France, 9 November 2006, at 73. 292 Christoph Grabenwarter, ‘Europäisches und Nationales Verfassungsrecht’ in Jörn Ipsen (ed), Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 60 (Berlin: Walter de Gruyter, 2001) at 313. See also the separate opinion of Judge Martens in Fischer v Austria, 26 April 1995, at 9. 282

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An example is the Benthem case, where the ECtHR looked at the review of the administrative appeal procedure in the Netherlands. The Court adjudicated on the meaning of a tribunal for the purposes of Article 6. It found that a tribunal must have ‘a power of decision’, whereas the highest administrative court in the Netherlands only gave advice that was not binding. The ultimate decision was taken by the Crown.293 The Court also established that the decision of the Crown is an administrative act emanating from a minister who is responsible to parliament. The ECtHR decided that a tribunal that is tied to the executive power and thus answerable to parliament cannot be seen as independent.294 The Benthem case decision has led the Netherlands to reform its administrative appeal procedure.295 Still, the ECtHR did not take the rule of law into account in its argumentation in the Benthem case, even though this is an important case concerning the independence and authority of the judiciary. Another example is the judgment in Procola v Luxembourg296 which led Luxembourg to change the structure of its highest administrative court.297 Also in this case, the ECtHR did not mention the rule of law. A further example is the case of Van de Hurk v Netherlands298 which concerned the power of the Crown to deprive the judgments of the Industrial Appeal Tribunal— an administrative tribunal—of its effect to the detriment of an individual party. The ECtHR judged that a tribunal cannot be considered independent for the purposes of Article 6 when a non-judicial authority can alter its decisions.299 The Court did not mention the rule of law, even though the case concerned the independence of the judiciary. It would have been more in line with other case law, such as the Assanidze case, if the ECtHR had decided the power of the Crown to change the binding judgments of the Industrial Appeals Tribunal to run counter to the rule of law. Further, the rule of law should have been mentioned given that the ECtHR has consistently underlined the central position of the judiciary to ensure individual rights.300 Especially in relation to administrative review, independence of the judiciary from the executive is required to ensure effective review of legality. Still, as noted in section 2.3.2, also in cases where the ECtHR has broadened the applicability of Article 6(1) and included administrative cases, it failed to refer to the rule of law. Given the importance of the requirements of independence and objective impartiality, it would be expected that the ECtHR would link these requirements to the rule of law. The Convention demands that states organize their legal systems 293

Benthem v Netherlands (Pl), 23 October 1985, at 40. Benthem v Netherlands (Pl), 23 October 1985, at 43. 295 Catelijne Engering and Nico Liborang, ‘Judgments of the European Court of Human Rights against the Netherlands and Their Effects:  An Overview 1960-1997’ in Tom Barkhuysen, Michiel van Emmerik, and P.H.P.H.M.C. van Kempen (eds), The Execution of Strasbourg and Geneva Human Rights Decisions in the National Legal Order (The Hague: Martinus Nijhoff Publishers, 1999) at 43. 296 Procola v Luxembourg, App no 14570/89, Series A no 326, 28 September 1995. 297 A.J. Bok, ‘Procola—Ook Elders in Europa een Probleem?’ (2002) Nederlands Tijdschrift voor Bestuursrecht 9, at 262. 298 Van De Hurk v Netherlands, App no 16034/90, Series A no 288, 19 April 1994. 299 Van De Hurk v Netherlands, 19 April 1994, at 45. 300 Partly dissenting opinion of Judge Martens in Van De Hurk v Netherlands, 19 April 1994. 294

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in conformity with the obligations that flow from the right to a fair trial. In the context of the lack of impartiality of Belgium courts, the ECtHR stated the following: ‘The Court recalls that the Contracting States are under the obligation to organise their legal systems “so as to ensure compliance with the requirements of Article 6 para. 1 (art. 6-1)” ’301 Also, as described in section 4.2.1, the ECtHR has linked the rule of law and the independence of the judiciary in a number of cases. Thus, it would be consistent with this case law if the ECtHR had linked the fair trial requirements of independence and impartiality to the rule of law. However, only in the Kyprianou case has the Court linked the requirement of impartiality to the rule of law.

4.4 A tribunal established by law Article 6 demands that a tribunal is established by law. The ECtHR has established that this aspect of the fair trial guarantee ‘reflects the principle of the rule of law’.302 The requirement that a tribunal must be established by law concerns the independence of the judiciary from the executive power. Notably, the organization of the judiciary must not be dependent on the discretion of the executive.303 Based upon the requirement that a tribunal must be established by law, the EComHR and ECtHR determined in Zand v Austria304 (‘the Zand case’) and Coëme v Belgium305 (‘the Coëme case’) that the organization of the judiciary must be regulated by a law emanating from parliament, and should not be dependent upon the discretion of the executive. These cases can be considered as fundamental judgments concerning the relation between the judiciary and the executive. Consequently, they clearly concern the rule of law, given that the independence of the judiciary is recognized by the ECtHR to be a fundamental element of the rule of law. However, the EComHR and the Court did not discuss these cases in terms of the rule of law. Only in the recent case of Dmd Group, AS v Slovakia306 has the ECtHR explicitly established the relation between the rule of law and the requirement that a tribunal must be established by law.307 In the case of Zand, the applicant argued that the Austrian labour courts were not established by law, because the executive had discretionary power to determine the jurisdiction of these courts. The government argued that the executive could only decide on the boundaries between the court districts or the number of labour courts.308 The EComHR ruled that judicial organization should be regulated by a law emanating from parliament and should not depend upon the discretion of the executive. However, the EComHR found the delegation of legislation to 301 302 303 304 305 306 307 308

Cubber v Belgium, App no 9186/80, Series A no 86, 26 October 1984, at 35. Dmd Group, AS v Slovakia, App no 19334/03, 5 October 2010, at 58 (unreported). Dmd Group, AS v Slovakia, 5 October 2010, at 60. Zand v Austria (Pl), App no 7360/76, 15 DR 70, 12 October 1978. Coëme and ors v Belgium, App no 32492/96, ECHR 2000-VII, 22 June 2000. Dmd Group, AS v Slovakia, App no 19334/03, 5 October 2010. Dmd Group, AS v Slovakia, 5 October 2010, at 58. Zand v Austria (Pl), 12 October 1978, at 64–5.

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be acceptable and noted that the legislature should not be held to regulate each detail of the organization of the judiciary.309 The EComHR judged the amount of discretionary power of the executive over the labour courts to be compatible with Article 6(1). In the Coëme case, the procedural rules were not established before the applicant stood trial in the Court of Cassation. The Court of Cassation established the procedural rules itself because there was no legislation that did so. The applicant argued that the Court of Cassation had violated the principle of the separation of powers by laying down the procedural rules itself. The ECtHR confirmed the ruling in the Zand case and found that judicial organization should not be dependent upon the discretion of the executive.310 The Court also confirmed that judicial organization should be regulated by a law emanating from parliament.311 However, it did not describe this situation as an interference with the separation of powers or the independence of the judiciary. Instead it stressed the lack of certainty in the law and the resulting encroachment of the equality of arms. The Court observed that ‘the primary purpose of procedural rules is to protect the defendant against any abuse of authority.’312 In the recent case of DMD Group, AS v Slovakia313 the ECtHR developed further its case law on the requirement that a tribunal must be established by law and explained that the law in the term ‘established by law’ not only concerns the laws that set up a tribunal, but also that this law must emanate from parliament and include ‘provisions concerning the independence of the members of a tribunal, the length of their term of office, impartiality and the existence of procedural safeguards.’314

4.5 Analysis The independence of the judiciary is an element of the rule of law in the context of the Convention.315 The cases described in section 4.2 have shown that the ECtHR in general acknowledges the importance of the independence of the judiciary for the rule of law. From the case law on the execution and finality of judicial decisions it is also clear that the independence of the judiciary is demanded by the rule of law. Furthermore, the importance of the independence of the judiciary for the rule of law has been emphasized in the wider context of the Council of Europe.316 However, in contrast to the case law on access to court, in which the ECtHR has interpreted Article 6 to include this right based on the rule of law, the Court has not developed its own standard of independence of the judiciary based on the rule of law. Even though Article 6 contains a specific condition concerning the 309

Zand v Austria (Pl), 12 October 1978, at 69. Zand v Austria (Pl), 12 October 1978, at 69. 311 Coëme and ors v Belgium, 22 June 2000, at 98. 312 Coëme and ors v Belgium, 22 June 2000, at 102. 313 Dmd Group, AS v Slovakia, App no 19334/03, 5 October 2010. 314 Dmd Group, AS v Slovakia, 5 October 2010, at 59. 315 Assanidze v Georgia, 8 March 2004, at 129–30. 316 Council of Europe, Committee of Ministers, ‘On Independence, Efficiency and Role of Judges’, Recommendation No R (1994) 12. 310

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independence and impartiality of the judiciary, the Court has only once explicitly related this condition to the rule of law. Furthermore, in important cases where it reviewed the independence of administrative courts—resulting in changes in the national constitutional order—the ECtHR has failed to mention the rule of law. In addition, the separation of powers doctrine, notwithstanding its growing importance, is not yet fully fledged, and the relation between this doctrine and the rule of law is not yet fully developed in the case law. As was clarified in Chapter 2, the rule of law includes a functional separation of the three powers of government to adjudicate, frame laws, and apply laws. Thus separation is important to ensure the integrity of the law. The independence and functional separation of the judiciary from the other powers of government, and from the parties to the dispute particularly, ensures the integrity and authority of the law. For one thing, the independence will counter political influence on judicial decision-making. Also, the independence of the judiciary—especially from the executive—is essential to enable courts to review whether acts of the executive that affect individual rights remain within the boundaries of the law. The separation of powers doctrine is not only concerned with the functional separation of powers but also with assigning authority to different bodies of government and organizing the mutual control of these bodies. In this respect different choices are possible and compatible with the rule of law. In the case law, references to the separation of powers doctrine can indicate both the mutual control of powers as well as the functional separation of the three legal tasks. Still, the ECtHR has not developed a separation of powers doctrine which clarifies the functional boundaries between the different powers. The Court has noted that it does not require states to comply with theoretical constitutional concepts. All in all, an overarching separation of powers doctrine that clarifies the form and function of this doctrine does not seem to underlie the reasoning of the ECtHR. Thus the separation of powers doctrine must be seen in light of the subsidiary role of the Convention, which places domestic authorities in the primary position to protect the Convention rights. What is surprising is that the ECtHR has not clearly established the importance of the independence of the judiciary to ensure control of the executive. Even in those administrative cases where judicial and advisory opinions are jointly held, the Court has not explained the importance of independence for effective judicial review. In several cases, the ECtHR has established that a strict separation between advisory tasks and adjudicative tasks is not necessary so long as the individual judges have not taken part in both tasks on the issue at hand. The Court reviews whether a particular applicant in a particular case has had access to a fair trial. Fairness depends on the independence of the tribunal from the other powers of government. Even so, it has not set specific rules concerning the form of this independence. Although the rule of law requires the independence of the judiciary, the Convention only includes an abstract and general requirement of independence. The only exception is the requirement that a tribunal must be established by law, because the ECtHR has determined that parliament, and not the executive, must set up the most important rules which

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ensure the fairness of the proceedings and the independence and impartiality of the members of a tribunal. The overall hesitant approach taken by the ECtHR to the independence of the judiciary is surprising, given the general acceptance of the importance of the functional separation of the three legal tasks of government to the rule of law and, especially, of the role of the judiciary in upholding the integrity of the law. The ECtHR could differentiate between the attribution of authority to the different powers of government, on the one hand, and the functional separation of the power of the judiciary from the other powers, on the other. It may not be the position of the ECtHR to determine the form the different institutions should have. Still, the requirement that three different functions of government exist, and particularly that the judicial function must be separated from the other powers to uphold the rule of law, cannot be disputed. Nor is the importance of judicial review to the rule of law in contention. Judicial review is the best way to ensure that government remains within the boundaries of the law, and judicial review can only be envisaged when the judiciary is independent from the executive.

5 Conclusion To recapitulate, the existence of judicial safeguards is of central importance to the rule of law in the case law. This becomes obvious because the ECtHR has broadened the scope of the right to a fair trial based on the rule of law to include access to court, the requirement that judicial decisions must be executed, and that the finality of judicial decisions must be respected. Also, in the context of the right to an effective remedy, the ECtHR has emphasized that the rule of law demands that judicial decisions must be executed. These developments in the case law show that the rule of law has directly impacted upon the scope of Convention rights. In the context of these cases, the reference to the rule of law has been more than a mere rhetorical reference to add persuasive power to the judgment. When the state can change its national legal order to the effect that the right of access to court is no longer protected, this may be an arbitrary restriction of the right to a fair trial. The ECtHR exercises an independent review of national law to ensure that limitations on the right of access to court do not constitute arbitrary interferences. The rule of law provides the ECtHR with an independent principle to review national law. The same can be said about the demand that judicial decisions must be executed, and that the final character of court judgments must be respected. The Court accepts that situations occur where the reopening of a case can be compatible with the obligations of the state under Article 6(1). However, the ECtHR exercises an independent review based on the rule of law to decide whether the reopening of a case constitutes a breach of the right to a fair trial. Thus, as in relation to the requirements of legality, the rule of law is concerned with a balance between independent review of domestic law and deference to the primary position of national authorities to interpret domestic law.

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Similar to the requirements of legality in the context of the limitation clauses and Articles 5(1) and 7, the ECtHR has found that arbitrary interferences with judicial safeguards are contrary to the rule of law. The rule of law opposes arbitrary interferences through changes in national law with the right of access to court. The demand that final judicial decisions are executed is essentially a demand of legal certainty and the foreseeability of the law. Another example is the prohibition of retrospective legislation in the context of the limitation of access to court; non-retroactivity is also demanded by legality. In this regard there is much similarity between the review of legality and that of access to court. In relation to judicial safeguards, the rule of law is also important to prevent domestic law arbitrarily limiting Convention rights, and it allows the ECtHR to independently review national law. Because of this similarity, it is surprising that the ECtHR does not explicitly review the quality of domestic law on which an interference with the right of access to court is based. The two different, albeit overlapping, functions of judicial safeguards—to settle disputes and to ensure that government acts within the boundaries set by law—are both described as aspects of the rule of law by the ECtHR. The right to a fair trial under its civil limb ensures individuals’ access to court to resolve disputes. Also in the context of other articles of the Convention, the Court has emphasized the fundamental role of courts as guarantors of justice in a state based on the rule of law.317 In administrative and criminal cases, the right to a fair trial has the function of controlling whether government keeps within the limits of the law. Surprisingly, the ECtHR has not frequently referred to the rule of law in administrative and criminal cases when reviewing interferences with the right to a fair trial. Yet, in the context of the limitation clauses, the Strasbourg Court has found that the rule of law demands interferences by the executive power with an individual’s rights to be subjected to judicial control.318 In addition, the Court has particularly emphasized the importance to the rule of law of the judicial safeguards offered by Article 5, paragraphs 3 and 4. Certainly these provisions are aimed at ensuring that government remains within the boundaries of the law. Lastly, the right to an effective remedy also entitles individuals to a form of judicial review where government has arguably interfered with their Convention rights. Surprisingly, the ECtHR has not frequently linked Article 13 to the rule of law. Both functions of the judiciary—settling disputes and ensuring that government keeps to the law—are only possible where the judiciary is independent. Accordingly, it would have been consistent with the general concept of the rule of law in theory if the ECtHR had clearly linked the requirements of independence and impartiality to the rule of law. In addition, it would fit the importance of the independence of the judiciary to the rule of law if the Court had developed a stricter standard of independence and impartiality compared to its present general

317 Nikula v Finland, 21 March 2002, at 45; Schöpfer v Switzerland, 20 May 1998, at 29; Haes and Gijsels v Belgium, 24 February 1997, at 37. 318 Klass and ors v Germany (Pl), 6 September 1978, at 55.

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standard of independence. Especially where administrative review procedures are concerned, independence of the courts from government is necessary to ensure that government remains within the boundaries of the law. Thus the ECtHR would have been expected to have motivated its decisions that concern the consecutive exercise of advisory and adjudicative powers with reference to the rule of law.

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5 The Substantive Contents of Law 1 Introduction In Chapters 3 and 4 it was shown that in the case law of the European Court of Human Rights (‘ECtHR’, ‘Strasbourg Court’ or simply ‘the Court’), the rule of law primarily concerns judicial safeguards and the quality of national law. Defined as legality and judicial safeguards, the rule of law is relatively determinable. It is a formal concept, concerned with the quality of national laws and procedures. The focus in this chapter will be on the substantive connotations of the rule of law. Specifically, the chapter will analyse whether the rule of law, in the Court’s case law, also sets limitations upon the substantive contents of domestic law. On the one hand, the rule of law in the context of the European Convention on Human Rights1 (‘Convention’) is mainly formal and concerned with procedural guarantees and the requirements of legality. On the other hand, the rule of law also features in the case law as a broader concept, in relation to the European public order, democratic values, and the protection of substantive Convention rights. Moreover, legality and judicial safeguards are principally aimed at the effective protection of all Convention rights. This raises the question of the extent to which the rule of law in relation to the Convention should also be understood as a substantive concept that protects individual freedom or places limits on the substantive contents of national law. The chapter will analyse the relation between human rights protection and the rule of law in greater depth. In section 2, it will be shown that the rule of law has strengthened the procedural focus of the Convention. Next, in section 3, the question of whether the rule of law should be seen as protecting a free sphere of individuals will be addressed. Then, in section 4.1, it will be shown that legality in the context of the Convention cannot be understood to require a hierarchy of norms, where human rights are placed in the highest position. Lastly, in section 4.2, it will be argued that the rule of law could also denote the emerging consensus in European states on the position of the Convention as a constitutional document of the European public order.

1 Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953.

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2 Procedural Convention Rights The Convention contains both substantive rights and procedural rights.2 Substantive Convention provisions are, for instance, the prohibition of torture, the right to respect for private and family life, and the freedom of expression. In contrast, Convention provisions such as the right to liberty and security and the right to a fair trial could be seen as procedural rights.3 Article 5 is not only procedural, because the provision first determines that everyone has the right to liberty and security of person. Otherwise, this provision mainly concerns legal and judicial safeguards. Also, rights codified in the additional protocols, such as the right of appeal and ne bis in idem, provided for in Articles 2 and 4 of Protocol 7, must be seen as procedural rights. The Convention has a procedural focus, and the ECtHR increasingly includes procedural safeguards in the substantive rights.4 Most Convention articles are concerned with procedural fairness, and the Convention system has most to offer when protecting due process.5 This focus is reinforced by the view taken on the rule of law concept by the Court. In the context of the Convention, the rule of law is mainly formal and mostly concerned with procedural constraints. In the case law, the rule of law is mostly referred to in relation to Articles 5, 6, and 7, and in relation to legality. Exceptionally, the ECtHR has referred to the rule of law in relation to substantive human rights provisions. An example is Soering v United Kingdom6 (‘the Soering case’). In this case, the rule of law was one of the reasons for the Court to hold that deportation or extradition is not allowed under Article 3 where ‘there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed.’7 Thus in the Soering case the rule of law was one of the reasons for interpreting Article 3 in a broader manner. Recently, the 2 In this text the term procedural right does not refer to the provisions of the Convention which determine the procedures before the ECtHR, such as art 34. 3 C.A. Gearty, ‘The European Court of Human Rights and the Protection of Civil Liberties: An Overview’ (1993) Cambridge Law Journal 52(1) at 98; Wolfgang Strasser, ‘The Relationship between Substantive Rights and Procedural Rights Guaranteed by the European Convention on Human Rights’ in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: The European Dimension (Köln: Carl Heymanns Verlag KG, 1988) at 595. 4 Franz Matscher, ‘Wie sich die 1950 in der EMRK Festgeschriebenen Menschenrechte Weiterentwickelt Haben’ in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel, and Beatrice Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law, Liber Amoricum Luzius Wildhaber (Zurich:  Dike Verlag, 2007) at 442; Luzius Wildhaber, ‘The Role of the European Court of Human Rights’ (2004) Mediterranean Journal of Human Rights 8, at 18–20; C.A. Gearty (1993) at 125. 5 C.A. Gearty (1993) at 98. According to Trechsel, the flip side of the procedural focus in case law concerning the right to liberty would be less attention to the substantive aspect of shielding individuals from police brutality and torture (S. Trechsel, ‘Liberty and Security of Person’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht:  Martinus Nijhoff Publishers, 1993) at 333). 6 Soering v United Kingdom (Pl), App no 14038/88, Series A no 161, 7 July 1989. 7 Soering v United Kingdom (Pl), 7 July 1989, at 88.

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Court has held for the first time, with reference to the rule of law, that an expulsion would violate the right to a fair trial as a real risk existed that torture evidence would be used in trial against the applicant. Accordingly, the rule of law has been a reason to broaden the scope of a procedural right to take into account concerns which normally arise under a substantive right. The ECtHR held the following: More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence—however reliable—which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.8

Another example is the case of Gäfgen v Germany9 where the ECtHR established that the rule of law requires the integrity of the judicial process, and consequently found that courts may not use evidence obtained as a result of a violation of the prohibition of torture or other ill-treatment in breach of Article 3.10 The reference made to the rule of law in these cases could be seen as an expression that the rule of law requires the core contents of the most basic human rights to be respected.11 These cases remain exceptions. The ECtHR does not normally refer to the rule of law in relation to substantive rights (and neither to substantive issues in relation to procedural rights) except to emphasize the necessity of adequate procedures. The rule of law mainly concerns the quality of the law and the existence of adequate procedures. In the cases where the rule of law is related to substantive Convention rights, such as the right to life and the prohibition of torture, these rights have been given a procedural focus, based on the rule of law. An example is the group of cases that concern the procedural side of the right to life. The ECtHR has held that life-endangering offences may not go unpunished, because this is essential for maintaining public confidence and ensuring adherence to the rule of law.12 Also, an investigation into such an offence must be conducted with promptness and reasonable expedition, because this is important for maintaining public confidence in the adherence to the rule of law by the authorities.13 In addition, the investigation must be carried out in an independent manner.14 The same applies to alleged breaches of the prohibition of torture. When an official complaint has been lodged in cases involving allegations of torture or ill-treatment, the authorities must promptly start an investigation. The reason is that in these situations a quick response is also

8 Othman (Abu Qatada) v United Kingdom, App no 8139/09, ECHR 2012, 17 January 2012, at 264. 9 Gäfgen v Germany (GC), App no 22978/05, 1 June 2010 (not yet reported). 10 Gäfgen v Germany (GC), 1 June 2010, at 165, 167, 175, 178. See also, for the Gäfgen case, Chap 4, sect 2.1, in the text at n 16. 11 See Chap 2, sect 5.3, in the text around n 363. 12 Öneryıldız v Turkey (GC), App no 48939/99, ECHR 2004-XII, 30 November 2004, at 96; Ahmet Özkan and ors v Turkey, App no 21689/93, 6 April 2004, at 313 (unreported). 13 Kolevi v Bulgaria, App no 1108/02, 5 November 2009, at 194, 213 (unreported). 14 Fedorchenko and Lozenko v Ukraine, App no 387/03, 20 September 2012, at 43 (unreported).

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essential for maintaining public confidence in the adherence of the authorities to the rule of law.15 Similarly, where an individual has an arguable claim that she or he has been subjected to ill-treatment by agents of the state, the notion of an effective remedy entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, which includes effective access for the complainant to the investigatory procedure.16 Accordingly, the rule of law strengthens the procedural focus of the Convention, also of the substantive Convention rights. The ECtHR has stated that the rule of law is one of the values underlying the Convention.17 Primarily, this signifies that the Convention rights can only be effectively guaranteed through laws and procedures of sufficient quality. The ECtHR refers to the rule of law in cases where national law is clearly lacking in quality or is even set aside completely.18 Thus the Convention rights are legal rights rather than moral rights that depend for their protection on a functioning legal system and effective procedures. Also, the notion of the rule of law underlying the entire Convention signifies that legality and the existence of judicial safeguards are of importance to all Convention rights. A well-functioning legal system, and adequately operating legal institutions, form the basis of human rights protection.19 In the context of the Convention, the relation between the rule of law and human rights thus entails a legal conception of human rights.20 It is therefore consistent with the procedural and formal content of the rule of law to understand the procedural Convention rights, or at least the procedural elements of these rights, as part of the rule of law. The rule of law requires domestic law to have sufficient quality. In the same way, the rule of law requires judicial procedures to have a certain quality. To understand procedural Convention rights as part of the rule of law fits the numerous cases where the Court has emphasized the importance of these rights to the rule of law. First, the ECtHR has repeatedly held that the guarantee enshrined in Article 7 is an essential element of the rule of law.21 Secondly, the Court has frequently emphasized that judicial control of interferences by the executive with the individual’s right to liberty is implied by the rule of law.22 In addition, based on the rule of law, it 15 Böke and Kandemir v Turkey, App nos 71912/01, 26968/02, 36397/03, 10 March 2009, at 56 (unreported). 16 Haci Özen v Turkey, App no 46286/99, 21 April 2007, at 83 (unreported); Abdülsamet Yaman v Turkey, App no 32446/96, 2 November 2004, at 54 (unreported). 17 Broniowski v Poland (GC), App no 31443/96, ECHR 2004-V, 22 June 2004, at 184. 18 Abdulkhakov v Russia, App no 14743/11, 2 October 2012, at 156 (unreported). 19 Wolfgang Strasser (1988) at 603. 20 See also Chap 2, sect 5.1, in the text around n 308. 21 CR v United Kingdom, App no 20190/92, Series A no 335-C, 22 November 1995, at 32; K-HW v Germany (GC), App no 37201/97, ECHR 2001-II, 22 March 2001, at 45. 22 Brogan and ors v United Kingdom (Pl), App no 11209/84, Series A no 145-B, 29 November 1988, at 58; Brannigan and McBride v United Kingdom (Pl), App no 14553/89, Series A no 258-B, 26 May 1993, at 48. See also Aksoy v Turkey, App no 21987/93, ECHR 1996-VI, 18 December 1996, at 76; Sakik and ors v Turkey, App no 23878/94, ECHR 1997-VII, 26 November 1997, at 44; Dikme v Turkey, App no 20869/92, ECHR 2000-VIII, 11 July 2000; İğdeli v Turkey, App no 29296/95, 20 June 2002, at 27 (unreported); Filiz and Kalkan v Turkey, App no 34481/97, 20 June 2002, at

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has further developed the detailed requirements set by Article 5 to national laws limiting individual liberty.23 Thirdly, the ECtHR has held Article 6 to reflect the fundamental principle of the rule of law.24 The right of access to court has been derived from the rule of law, and access to court is a prerequisite for the effectiveness of the right to a fair trial. The rule of law requires that at least a minimum standard of the right to a fair trial is upheld. The right to a fair trial is particularly important to ensure the adequate protection of all Convention rights in the national legal order.25 The right to a fair trial sets detailed requirements for the organization of the judiciary. This right ensures that domestic judicial procedures are accessible and fair. Fair and accessible judicial procedures in the national legal order are a prerequisite for the adequate protection in that legal order of all Convention rights. In contrast to the case law on Articles 5, 6 and 7, the ECtHR has, remarkably, only referred to the rule of law in one case concerning Article 13. In Kudła v Poland26 (‘the Kudła case’) the Court strengthened the autonomous role of the right to an effective remedy. Still, the right to an effective remedy is one of the central Convention provisions that can ensure the effective protection of the Convention rights in the national legal order.27 Article 13 is essentially a procedural human right and thus reflects the procedural focus of the Convention and the articles, as well as the subsidiary nature of the Convention. In the case of Klass v Germany,28 where the Court for the first time decided that the applicability of the right to an effective remedy does not depend upon the existence of a breach of another Convention right, the ECtHR did not refer to the rule of law.29 Given the importance of judicial safeguards for the rule of law, it would be logical if the ECtHR had linked this ruling to the rule of law. As the Court referred to the rule of law in the Kudła case, the rule of law does appear to be an underlying reason for interpreting Article 13 in such a manner that this right has achieved an independent role. As explained, the rule of law requires adequate legal procedures in the domestic legal order. Thus it is consistent when the autonomous interpretation of Article 13 is placed in the light of the rule

23 (unreported); Haci Özen v Turkey, 21 April 2007, at 83; Estrikh v Latvia, App no 73819/01, 18 January 2007, at 115 (unreported); Kolevi v Bulgaria, 5 November 2009, at 163. 23 See Chap 3, sect 4.5 and specifically in the text around n 335. 24 Sunday Times v United Kingdom (Pl), App no 6538/74, Series A no 30, 26 April 1979, at 55. 25 A.W. Heringa, J.G.C. Schokkenbroek, and J. van der Velde, Art. 6: Eerlijk Proces (Katern 3.6) (The Hague: Sdu Uitgevers, 2004) at 1; Nihal Jayawickrama, The Judicial Application of Human Rights Law, National, Regional and International Jurisprudence (Cambridge:  Cambridge University Press, 2002) at 128. 26 Kudła v Poland (GC), App no 30210/96, ECHR 2000-XI, 26 October 2000. 27 Clare Ovey and Robin C.A. White, The European Convention on Human Rights, 5th edn (Oxford: Oxford University Press, 2010) at 131; David Harris, Michael O’Boyle, and Colin Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford: Oxford Univserity Press, 2009) at 557. 28 Klass and ors v Germany (Pl), App no 5029/71, Series A no 28, 6 September 1978. 29 Klass and ors v Germany (Pl), 6 September 1978, at 64. In the Klass case the ECtHR followed the earlier minority opinion of the EcomHR (see the separate opinion of Mr Trechsel, joined by Mr Frowein in Gerhard Klass and ors v Federal Republic of Germany (Pl), App no 5029/71, Series B no 26, 9 March 1977).

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of law, and it is surprising that the link between the rule of law and the right to an effective remedy does not feature more prominently in the case law.

3 The Rule of Law and Individual Freedom 3.1 The changing focus of the Convention As was also elaborated in Chapter 2, the rule of law is part of liberal theory and, as such, has been understood to require the protection of a free sphere of individuals and limited government.30 For example, Judge Pavlovschi appears to uphold a view of the rule of law that mainly requires limited government, because he has emphasized that the rule of law demands stringent limitations on interferences by the state with the right to property.31 In contrast, it has been argued that the rule of law as a concept of the Convention has evolved from a notion that is freedom-oriented into one that includes elements of social justice.32 Relevant in this respect is that the Committee of Ministers has noted that the satisfaction of the basic material needs of persons in situations of extreme hardship is an indispensable element of a democratic society based on the rule of law.33 The Convention rights were initially intended as rights which shielded the individual from government interference.34 The Preamble to the Convention also stresses the belief of the signatory states in fundamental freedoms. The focus of the Convention on individual freedom could be understood to imply that a liberal theory, which understands rights as limitations of governmental power, is the founding doctrine of the ECtHR.35 Still, it must also be acknowledged that the main reason for not including economic and social rights was that it was necessary to reach agreement without too many difficulties.36 Moreover, although the Convention rights were originally understood as mainly requiring government abstention, this is no longer the case.37 30

See Chap 2, sect 5.2. Partly concurring and partly dissenting opinion of Judge Pavlovschi in Hutten-Czapska v Poland, App no 35014/97, 22 February 2005 (unreported). 32 Cordula Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin: Springer, 2003) at 216–18. 33 Committee of Ministers, ‘Recommendation of the Committee of Ministers to Member States on the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship’ (Strasbourg: Council of Europe, 2000). 34 Albert Bleckmann, ‘Die Entwicklung Staatlicher Schutzpflichten aus den Freiheiten der Europäischen Menschenrechtskonvention’ in Ulrich Beyerlin and Rudolf Bernhardt (eds), Recht Zwischen Umbruch und Bewahrung:  Völkerrecht, Europarecht, Staatsrecht:  Festschrift für Rudolf Bernhardt (Berlin: Springer, 1995) at 309; Franz Matscher (2007) at 443–4. 35 Cordula Dröge (2003) at 216. 36 Council of Europe, Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights—Recueil des Travaux Préparatoires de la Convention Européenne des Droits de L’homme. Vol. 1, Preparatory Commission of the Council of Europe Committee of Ministers, Consultative Assembly, 11 May-8 September 1949 (The Hague:  Martinus Nijhoff Publishers, 1975)  at 44; David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 3. 37 Albert Bleckmann (1995) at 309–10. 31

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The development of positive obligations is one of the clear ways in which the Convention has evolved.38 The importance of positive obligations with regard to the Convention is increasing, and has been continuing to do so over the years.39 All of the articles of the Convention can be interpreted, and almost all have been interpreted by the ECtHR to demand positive action on the part of national governments.40 The question is whether the rule of law is concerned with the development of positive obligations. This might indicate that the rule of law concept in the case law requires states to actively protect their citizens and not only to refrain from interfering with their rights. A difference must be made between horizontal, social, and procedural positive obligations.41 The development of procedural positive obligations must be seen as strengthening the rule of law. As described in section 2, adequate procedures are essential to the effective protection of Convention rights and are required by the rule of law. Consequently, it cannot be said that the rule of law only requires government abstention. The rule of law requires states to undertake measures to ensure adequate procedures and laws. The ECtHR describes these obligations as positive obligations of the state.42 In addition, of interest is whether the rule of law also requires states to protect inviduals against hardship or only against arbitrary interferences with their freedom rights. Thus, of relevance here are positive obligations which concern social issues, simply put:  social positive obligations.43 The relation between social positive obligations and the rule of law is of interest to understand whether the rule of law—apart from procedural positive obligations— also requires active protection of individuals by government. The evolvement of social positive obligations most clearly redefines the role of the state in society. The Convention has proved to be permeable to social rights.44 It does not guarantee social or economic rights as such.45 The ECtHR has not gone so far as to interpret new rights of a social or economic nature into the existing Convention rights. However, there have been cases where elements of social and economic rights have been read into the Convention rights.46 The extension of the Convention to social issues is 38

Franz Matscher (2007) at 443–7. A.R. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford/Portland Oregon: Hart, 2004) at 229. 40 According to Dröge, certain rights cannot contain positive obligations due to their negative formulation. She names art 7, art 4 of Protocol 7, and also arts 1, 3, and 4 of Protocol 4 (Cordula Dröge (2003) at 242); A.R. Mowbray (2004) at 229; Albert Bleckmann (1995) at 313; Jean-François Akandji-Kombe, Positive Obligations under the European Convention on Human Rights, A  Guide to the Implementation of the European Convention on Human Rights (Human Rights Handbooks, No 7) (Strasbourg, Council of Europe: 2007) at 6. 41 Johan van de Lanotte and Yves Haeck, Handboek EVRM, Dl 1, Algemene Beginselen (Antwerp/Oxford: Intersentia, 2005) at 101–5; Jean-François Akandji-Kombe (2007) at 16; Cordula Dröge (2003) at 6. 42 Centro Europa 7 7 S.r.l. and Di Stefano v Italy (GC), App no 38433/09, 7 June 2012, at 134, 156 (unreported). 43 Cordula Dröge (2003) at 6. 44 Virginia Mantouvalou, ‘Work and Private Life:  Sidabras and Dziautas v Lithuania’ (2005) European Law Review 30(4) at 573–85. 45 Pančenko v Latvia, App no 40772/98, 28 October 1999, at 2 (unreported). 46 Christian Tomuschat, ‘Social Rights under the European Convention on Human Rights’ in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel, and Beatrice Wagner 39

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realized through the interpretation of the Convention rights to include positive obligations.47 The development of social positive obligations also correlates with a changing role of the state, which has become involved in society to a much larger extent.48 Horizontal positive obligations, too, require states to adopt measures to protect individuals.49 The development of horizontal positive obligations has been instrumental in protecting individuals against the increasing danger of interferences by other individuals, private entities, or supra-national entities.50 Thus, also horizontal positive obligations can be relevant to indicate whether the rule of law requires states to actively protect individuals. Thus, of importance is an analysis of the relation between social and horizontal positive obligations and the rule of law concept compared to the relation between the rule of law and negative obligations of the state. Such an analysis should show whether the rule of law concept in the case law is focused on freedom from interferences or includes elements of social justice.

3.2 The rule of law most relevant to protect individual freedom It must be acknowledged that the core elements of the rule of law—legality and judicial safeguards—have been of most relevance in those cases that concern individual freedom from government interference. In the case law, the rule of law is mostly referred to in relation to Articles 5, 6, and 7, and in relation to legality. In the context of the limitation clauses, the rule of law has had most relevance in cases that concern interferences with the right to privacy. The ECtHR has developed specific requirements to which domestic law must adhere in relation to interferences with the right to privacy. The rule of law especially restricts interferences by government with the right to private life through secret surveillance methods.51 In addition, the rule of law in the context of the Convention has much to offer to protect individuals against government interferences in criminal cases, namely in the detailed procedural rights that apply in criminal cases. The Convention contains elaborate rules that regulate government involvement with individual

Pfeifer (eds), Human Rights, Democracy and the Rule of Law, Liber Amoricum Luzius Wildhaber (Zurich: Dike Verlag, 2007) at 861–3. 47 Christoph Grabenwarter, ‘Sozialstandards in der Europäischen Menschenrechtskonvention’ in Ulrich Becker, Bernd Baron von Maydell, and Angelika Nußberger (eds), Die Implementierung Internationaler Sozialstandards (Baden-Baden: Nomos, 2006) at 84. 48 Albert Bleckmann (1995) at 309–10. 49 Jean-François Akandji-Kombe (2007) at 7; Van Kempen argues that horizontal positive obligations can indirectly lead to repression of the individual by the state. He explains how in some cases, based on horizontal positive obligations, states must criminalize acts of individuals which negatively impact on a Convention right. Still, such horizontal positive obligations generally concern areas where government already has responsibility, because public safety requires government to protect rights such as the right to life and the prohibition of torture (see P.H.P.H.M.C. van Kempen, Repressie door mensenrechten (speech) (Nijmegen: Wolf Legal Publishers, 2008) at 80). 50 Cordula Dröge (2003) at 196–205. 51 See Chap 3, sect 4.2.4.

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rights in the area of criminal law. Articles 5, 6, and 7 are especially relevant procedural rights protecting against arbitrary criminal prosecution. These are also the articles that are most frequently construed in light of the rule of law. Accordingly, the rule of law has been of most importance in the case law to protect against some of the most far-reaching forms of government interferences with individual freedom. In that sense, it can be said that the rule of law has been of most relevance for the protection of individual freedom. Even though legality sets an especially strict standard in relation to interferences with the right to private life, legality sets a formal standard which does not determine the scope of private life. Nor does legality require government abstention. Legality only requires that laws are sufficiently precise, and it militates against arbitrary interferences. In addition, judicial safeguards are also formal elements of the rule of law. They do not determine the substantive content of an individual’s freedom but only require fair procedures. Legality and judicial safeguards merely form a limitation of governmental powers because government is required to act by way of laws and procedures of sufficient quality. Thus the rule of law protects freedom under the law rather than negative freedom, or freedom from interference.52

3.3 The rule of law and positive obligations In the Convention, there is no clear distinction between civil and political rights, on the one hand, and economic and social rights, on the other.53 The ECtHR has taken up the idea of the indivisibility of human rights.54 Accordingly, the rule of law cannot be merely focused on the freedom of individuals from interferences by the state. In Airey v Ireland55 (‘the Airey case’) the indivisibility between civil and political rights, on the one hand, and economic and social rights has first become clear. In this case, the ECtHR interpreted the right of access to court to include social positive obligations on the part of the state.56 The Airey case concerned a woman with a modest income and background who wanted to obtain a decree of judicial separation. Allegedly her husband had been physically and mentally cruel to her and their children. She was unable to pay the lawyers’ fees. She was allowed to plead her own case and appear in person before the national court. The ECtHR noted that the proceedings in such a case are complex and the emotional involvement of the applicant would have precluded objectivity. Thus the Court judged that the applicant had not had an effective right of access to court. In effect, the ECtHR demanded that the Irish government set up a system of free legal aid, although it said that the state could still decide how to ensure the right of access to court, because the state could also simplify the procedures.57 52

See also Chap 2, sect 3.5, in the text around n 263. Airey v Ireland, App no 6289/73, Series A no 32, 9 October 1979, at 26. See also Annoni Di Gussola and ors v France, App no 31819/96, ECHR 2000-XI, 14 November 2000, at 56. 54 On indivisibility, see Chap 2, sect 5.2, in the text around n 346. 55 Airey v Ireland, App no 6289/73, Series A no 32, 9 October 1979. 56 Airey v Ireland, 9 October 1979, at 24. 57 Airey v Ireland, 9 October 1979, at 26. See also Kreuz v Poland, App no 28249/95, ECHR 2001-IV, 19 June 2001, at 52; Malahov v Moldova, App no 32268/02, 7 June 2007, at 25 (unreported). 53

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In addition, legality and judicial safeguards are relevant in relation to all Convention rights, also when they concern social positive obligations. As government has become much more involved in society, in many cases a clear differentiation cannot be made between the duty not to interfere with a Convention right and the duty to undertake positive action to protect a Convention right. In many cases, the difference between positive and negative obligations is not so clear-cut.58 The Court has repeatedly stressed that the boundaries between positive and negative obligations ‘do not lend themselves to precise definition’.59 A breach of the Convention can be seen as an interference as well as a neglect of positive obligations, depending on the formulation of the primary obligation.60 The difference between positive and negative obligations must be sought in the difference between a breach resulting from the action or the inaction of government. However, in certain cases a breach is the result of a complex pattern of government actions and government refraining from action.61 In such cases, government could be found breaching a positive obligation to act, but could also be found providing inadequate safeguards against previous government action. Cases in which complex patterns of government action and inaction result in a breach of a Convention right could thus be framed as interferences with Convention rights, but also as a breach of positive obligations to protect a Convention right. The case of Abdulaziz, Cabales and Balkandali v United Kingdom62 concerns such a complex pattern of government action and inaction. The ECtHR reviewed whether the rights to family life of the applicants included a right to be reunited with their husbands, which would suggest that the UK government should not have refused their husbands’ access to the United Kingdom. The Court could also have judged the refusal to grant the husbands’ access to the United Kingdom to be an interference with the rights to family life of the applicants.63 Another example is the case of Lopez Ostra v Spain64 where the ECtHR looked at the question of whether the Spanish government should have been more active in preventing the negative health effects caused by a plant for the treatment of liquid and solid waste built very close to the applicant’s house. The Court determined that Spain had taken inadequate measures to protect the health of the applicants, amounting to a 58 Martens regards the Gül case as an example of a case in which the distinction between a positive and a negative obligation seems hardly more than a question of semantics (see the dissenting opinion of Judge Martens in Gül v Switzerland, App no 23218/94, ECHR 1996-I, 19 February 1996). See also the concurring opinion of Judge Wildhaber in Stjerna v Finland, App no 18131/91, Series A no 299-B, 24 October 1994; Cordula Dröge (2003) at 185–6. 59 Keegan v United Kingdom, App no 16969/90, Series A no 290, 26 May 1994, at 49; Nuutinen v Finland, App no 32842/96, ECHR 2000-VIII, 27 June 2000, at 127; Tysiąc v Poland, App no 5410/03, 20 March 2007, at 111 (not yet reported). 60 Cordula Dröge (2003) at 167–75. 61 Concurring opinion of Judge Wildhaber in Stjerna v Finland, 24 October 1994; Claudia Johanna Staal, De Vaststelling van de Reikwijdte van de Rechten van de Mens (Proefschrift) (Nijmegen: Ars Aequi Libri, 1995) at 295–303. 62 Abdulaziz, Cabales, and Balkandali v United Kingdom (Pl), App no 9214/80, Series A no 94, 28 May 1985. 63 Abdulaziz, Cabales and Balkandali v United Kingdom (Pl), 28 May 1985, at 66–9. 64 López Ostra v Spain, App no 16798/90, Series A no 303-C, 9 December 1994.

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breach of the applicant’s rights to private and family life. However, the Court could also have judged that the Spanish government had interfered with the right to private and family life, because the situation was caused by the government and the government had failed to adequately regulate the negative environmental effects of the plant.65 Furthermore, in the case of Rees v United Kindom66 the ECtHR examined whether the United Kingdom had breached its positive obligations by the refusal to alter the birth certificate of the applicant, who was a post-operative transsexual.67 Still, the facts of the case could also be seen as a continuous interference with the right to private life of post-operative transsexuals.68 Lastly, in the case of Broniowski v Poland69 the ECtHR noted that the complex facts of the case made it possible to analyse the case both ‘in terms of a hindrance to the effective exercise of the right protected by Article 1 of Protocol No. 1 or in terms of a failure to secure the implementation of that right.’ The ECtHR reviewed the lawfulness of the interference in this case.70 As there are not always clear boundaries between negative and positive obligations, it would be logical if the same principles were to apply when positive and when negative rights are at stake.71 The ECtHR should also consider whether a certain governmental action is in accordance with the law.72 In several cases, the Court has also reviewed the lawfulness of governmental action when social positive obligations were concerned. The first examples are the cases of Sylvester v Austria73 and PP v Poland74 which both concerned child abduction. In both cases the Court found a breach of the right to family life because the authorities had failed to take all reasonable measures to enforce the return orders.75 Both the rule of law and the state’s positive obligations under Article 8 demand that national authorities take all reasonable measures to facilitate the execution of the return order.76 Also, in the case of Nuutinen v Finland77 the Strasbourg Court stressed the importance of the execution of final legal rulings.78 Furthermore, the rule of law imposes on states the positive obligation to involve individuals in the decision-making process 65

López Ostra v Spain, 9 December 1994, at 51. Rees v United Kingdom (Pl), App no 9532/81, Series A no 106, 17 October 1986. 67 Rees v United Kingdom (Pl), 17 October 1986, at 35–7. 68 Dissenting opinion of Judge Martens in Cossey v United Kingdom (Pl), App no 10843/84, Series A no 184, 27 September 1990, at 3.5. 69 Broniowski v Poland (GC), App no 31443/96, ECHR 2004-V, 22 June 2004. 70 Broniowski v Poland (GC), 22 June 2004, at 146. 71 Th.L. Bellekom, ‘Het Hof voor de Rechten van de Mens en de Beperkingsclausules van het EVRM’ in Aalt Willem Heringa and Jeroen Gerardus Cornelis Schokkenbroek (eds), 40 Jaar Europees Verdrag voor de Rechten van de Mens: Opstellen over de Ontwikkeling van het EVRM in Straatsburg en in Nederland 1950-1990 (Leiden: Stichting NJCM-Boekerij, 1990) at 67. 72 Concurring opinion of Jjudge Wildhaber in Stjerna v Finland, 24 October 1994. 73 Sylvester v Austria, App no 36812/97, 24 April 2003 (unreported). 74 PP v Poland, App no 8677/03, 8 January 2008 (unreported). 75 Sylvester v Austria, 24 April 2003, at 72; PP v Poland, 8 January 2008, at 95. 76 Sylvester v Austria, 24 April 2003, at 63; PP v Poland, 8 January 2008, at 88. 77 Nuutinen v Finland, App no 32842/96, ECHR 2000-VIII, 27 June 2000. 78 The ECtHR did not establish a breach because it found that the authorities took all steps they were reasonably required to take to enforce the access rights (Nuutinen v Finland, 27 June 2000, at 129, 137). 66

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regarding issues affecting their right to privacy to ensure the protection of their interest.79 Another example is the case of Tysiac v Poland80 which concerned the right to a therapeutic abortion. Polish law accepted the right to therapeutic abortion as an exception to the prohibition of abortion. The applicant failed to obtain the two required certificates from doctors stating she had a right to a therapeutic abortion. The ECtHR decided the case on the basis of positive obligations of the state to ensure that proper procedures exist. The fact that the woman could not obtain a review of the earlier doctors’ decisions was not in accordance with proper procedures, and thus the state had failed to respect the right of the applicant. The Court ruled that the rule of law demanded such a review procedure to ensure that the right to a therapeutic abortion was not meaningless.81 To conclude, it cannot be said that the rule of law requires limited government, because the rule of law does not determine what scope Convention rights must have. Rather, the rule of law is formal, and is concerned with the quality of domestic laws and procedures. However, the formal guarantees of the rule of law are not aims in themselves; they are intended to protect the Convention rights. In that sense, the rule of law has most to offer when protecting individuals from some of the most far-reaching forms of government interference. In cases of interferences with Convention rights, the applicant has most interest in government keeping to the law. If government has interfered on the basis of a prospective, published, clear, and generally stated law, the applicant would have been able to know there was a possibility that government would interfere with his rights.82 In contrast, in some cases that concern positive obligations, there will not be any laws, and a breach of a positive obligation could mean that national authorities should frame new laws to ensure the protection of the positive obligation.83 This is different from the situation in which an action interfering with a right has taken place without the existence of a law.84 However, government is already involved and regulations affecting individual rights are present in many legal areas, making it difficult to distinguish between the requirement not to interfere and the requirement to undertake positive action. Thus legality and judicial safeguards are also relevant with regard to positive obligations, and the ECtHR has reviewed the lawfulness of government actions when positive obligations are concerned.

79

VC v Slovakia, App no 18968/07, ECHR 201, 8 November 2011, at 140–1. Tysiąc v Poland, App no 5410/03, 20 March 2007 (unreported). 81 Tysiąc v Poland, 20 March 2007. According to Hendriks, the judgment of the Court is quite reserved, particularly in that it is restricted to procedural matters (Aart Hendriks, ‘Straatsburg Vermijdt Principiële Uitspraak Abortus’ (2007) NJCM Bulletin 32(4) at 506–7). See also the later case of RR v Poland, App no 27617/04, 26 May 2011, at 190–214 (unreported). 82 P.W. Brouwer, ‘Beginselen van Legaliteit’ (2003) Themis 2 at 67. 83 Airey v Ireland, 9 October 1979, at 26; Demir and Baykara v Turkey (GC), App no 34503/97, 12 November 2008, at 110 (not yet reported). 84 Cordula Dröge (2003) at 349. 80

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4 The Rule of Law and the Substantive Contents of Law 4.1 Legality and a hierarchy of norms In the context of the Convention, the rule of law is primarily formal and requires states to ensure the quality of the law and adequate judicial procedures. The description of the case law has shown that the ECtHR focuses on the quality of the law, but does not include substantive elements in its review of lawfulness.85 As we have seen, the requirements of legality are neutral towards substantive aims pursued through law.86 Thus laws that conform to quality requirements set by the ECtHR for national law may have abject aims. In contrast, just laws have sufficient quality both with regard to their form as well as with regard to their function. To ensure that laws are just, limitations must be set on the substantive contents of law. In theoretical accounts, the rule of law is often seen as placing limitations on the substantive contents of the law in order to ensure just laws. One possibility for the rule of law, as a concept of the Convention, to limit the substantive contents of law is through a hierarchy of norms, whereby the Convention is placed in the highest position vis-à-vis domestic law. A conception of the rule of law whereby human rights are placed in the highest position would fit the conception of the rule of law within many national legal systems.87 As we have seen, an important aspect of legality in Germany and France is that it includes a hierarchy of norms.88 Also, constitutional review is, in many European legal systems, seen as the method to uphold this hierarchy.89 The quality requirements of legality do not include a demand that human rights norms are placed above other legal norms. Still, legality also requires law to conform to domestic laws and procedures. In the domestic legal systems, legality is frequently understood in a substantive sense and includes the requirement that laws are in conformity with fundamental or constitutional rights. Legality thus includes a hierarchy of norms to the extent that national laws and procedures require a hierarchy. However, the review of the conformity with national laws and procedures is not strict. Hierarchy is thus neither an autonomous nor a strict requirement, given the reserved manner of reviewing compliance with national laws and procedures.90 85 However, the openness of the requirements of legality does enable the ECtHR to take into account substantive arguments, as was shown for instance in Chap 3, sect 4.4.1. 86 See also Chap 2, sect 3.5. 87 See especially the country reports in the annex of Bolivia, Colombia, and Switzerland, UN General Assembly, ‘Strengthening and Coordinating United Nations Rule of Law Activities’ (2010) A/RES/65/318. 88 See Chap 2, sect 2.3.2, in the text around n 120 and Chap 2, sect 2.3.3, in the text around n 165. 89 Alec Stone Sweet, Governing with Judges, Constitutional Politics in Europe (Oxford:  Oxford University Press, 2000) at 44–6. 90 The Kafkaris case could be an example of how the restricted review of domestic law thwarts the incorporation of a national standard of hierarchy of norms. In his dissenting opinion, Judge Loucaides remarked that in every legal system a hierarchy of norms exists and thus the ECtHR should not review domestic law ‘as a whole’ (see the partly dissenting opinion of Judge Loucaides, joined by Judge Jočienė in Kafkaris v Cyprus (GC), App no 21906/04, 12 February 2008 (not yet reported).

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In one case the ECtHR did appear to understand legality as a hierarchy of legal sources. In Bosphorus Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland91 it reviewed whether the EU offered equivalent protection of human rights.92 The Court noted that legality as interpreted by the ECJ demands the law to be compatible with human rights.93 It found this to be one of the reasons to determine that the EU offers equivalent protection of human rights. Constitutional review must be seen as the best method to uphold a hierarchy of norms. However, the Convention requires judicial review over the executive, but not over the legislative. Access to court requires states to institute judicial review over acts of the administration in cases of violations with human rights, at least in respect of those rights that can be qualified as civil rights and obligations. Also, the right to an effective remedy requires states to institute some form of review over the executive, ideally before the judiciary, in cases where Convention rights are arguably violated. However, neither the right to a fair trial nor the right to an effective remedy require states to ensure review over legislation, let alone review of legislation through a constitutional court.

4.2 The Convention as a constitutional instrument The focus of the book has been on those cases where the ECtHR has broadened the scope of Convention rights with reference to the rule of law. This has led to the conclusion that the rule of law in the context of the Convention, is primarily focused on the quality of domestic law and adequate judicial procedures. However, the rule of law could be understood in a broader sense as well. First, the Court refers to the rule of law in relation to the Convention system of individual rights protection. Secondly, the Convention system of individual rights protection has had much influence on, and has perhaps even become part of, the rule of law concept in the member states. The ECtHR has noted that the rule of law is a value underlying the Convention.94 Furthermore, the Court has described the rule of law as a ‘notion from which the whole Convention draws its inspiration.’95 Such expressions could be understood to imply that the rule of law requires the protection of human rights by the Strasbourg Court. The rule of law concept would then include, over and above its core of legality and judicial safeguards, the requirement of the protection of human rights by the Convention system itself. This conception of the rule of law matches the view on the Convention as a constitutional instrument of the European public order. Moreover, this conception fits the importance of the Convention system of

91 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland (GC), App no 45036/98, ECHR 2005-VI, 30 June 2005. 92 At the time of the judgment it was still EC law which obligated the Irish state to adopt the sanctions regime. However, since the Treaty of Lisbon the EC has ceased to exist as a separate legal entity. 93 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland (GC), 30 June 2005, at 159. 94 Broniowski v Poland (GC), 22 June 2004, at 184. 95 Engel and ors v Netherlands (Pl), App no 5100/71, Series A no 22, 8 June 1976, at 69.

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human rights protection for the rule of law in the member states and the influence this system has had on the domestic conceptions of the rule of law. The most important reason to understand the Convention as a constitutional instrument is the influential role over domestic law which the ECtHR has acquired through the individual application procedure, which is the central element of the Convention system of protection.96 This procedure can be described as a form of constitutional review over the legal systems of the member states.97 The Court not only reviews administrative acts, but also national legislation98 and national judgments.99 Through this review, the Strasbourg Court sets limits to the democratic decision-making processes in the member states, with the aim to protect human rights. Consequently, the procedure before it can be qualified as a form of constitutional review, and the ECtHR can be described as a constitutional court.100 The individual application procedure is not a direct form of constitutional review. Rather, the influence of the ECtHR is indirect and diffuse.101 Judgments of the ECtHR cannot annul national legislation or rulings of national courts. Additionally, the review by the ECtHR leads to a judgment within the context of the specific circumstances of a case.102 Still, in certain cases the ECtHR in effect overturns earlier rulings of the highest national courts.103 Furthermore, in a number of cases the ECtHR has reviewed domestic law in an abstract manner and not the application of legislation in a particular case.104 Moreover, the subject matter of the Convention as a human rights treaty and the ability of individuals to plead their case before the ECtHR leads to an influence that reaches much further than a mere judgment over the facts of a specific case. When states do not ensure that their national laws and procedures comply with decisions of the ECtHR, the Court will in future cases establish new violations. Thus, based on the binding force of the decisions, states 96 Mamatkulov and Askarov v Turkey (GC), App no 46827/99, ECHR 2005-I, 4 February 2005, at 122. 97 Ed Bates, The Evolution of the European Convention on Human Rights, From its Inception to the Creation of a Permanent Court of Human Rights (Oxford:  Oxford University Press, 2010) at 154–8, 354–6. 98 See for instance Chassagnou and ors v France (GC), App no 25088/94, ECHR 1999-III, 29 April 1999. 99 ‘[T]he Strasbourg enforcement system can be seen as judicially controlling, on the international level, the exercise of democratic discretion by domestic legislative, executive and judicial authorities at national level.’ (Steven Greer, The European Convention on Human Rights, Achievements, Problems and Prospects (Cambridge:  Cambridge University Press, 2006) at 40); S. Galera and J. Ruiloba Albarino, ‘European Regional Tradition—the Council of Europe’ in S. Galera (ed), Judicial Review, a Comparative Analysis inside the European Legal System (Strasbourg:  Council of Europe Publishing, 2010) at 202. 100 Jochen A. Frowein, ‘Übernationale Menschenrechtsgewährleistungen und Nationale Staatsgewalt’ in Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland (Band VII) (Heidelberg: Müller, 1992) at 753; Rainer Arnold, ‘European Constitutionalism after the Second World War’ in S. Galera (ed), Judicial Review, a Comparative Analysis inside the European Legal System (Strasbourg: Council of Europe Publishing, 2010) at 39. 101 Laurence R. Helfer, ‘Redesigning the European Court of Human Rights:  Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) European Journal of International Law 19(1) in the text around fn 48. 102 Wingrove v United Kingdom, App no 17419/90, ECHR 1996-V, 25 November 1996, at 50. 103 104 Ed Bates (2010) at 355. Ed Bates (2010) at 157.

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are required to change their legislation.105 States can be obliged to change not only their laws, but also their administrative practices, or even their constitutional laws and practices.106 Besides, states generally respect the authority of the rulings of ECtHR.107 In addition, as the human rights protected by the Convention are concerned with almost all aspects of life, there is hardly any area of domestic law which cannot be touched by the judgments of the ECtHR.108 The incorporation of the Convention into the domestic legal orders ensures the influential role of the ECtHR on those legal orders. Most member states have now incorporated the Convention into their national legal order.109 Even though in certain states the Convention only has the rank of a normal law, national courts in those states take the Convention standards into account.110 What is more, states are also expected to take the judgments of the ECtHR into account when they concern other states. In the Opuz v Turkey111 judgment, the ECtHR stated as follows: [B]earing in mind that the Court provides final authoritative interpretation of the rights and freedoms defined in Section I of the Convention, the Court will consider whether the national authorities have sufficiently taken into account the principles flowing from its judgments on similar issues, even when they concern other states.112

The potential influence of the ECtHR can thus also be felt in one member state even though the procedure originated in another member state. For this reason 105 Jochen Abr. Frowein, ‘The Binding Force of ECHR Judgments and its Limits’ in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel, and Beatrice Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law, Liber Amoricum Luzius Wildhaber (Zurich: Dike Verlag, 2007) at 262. 106 For example, on the basis of the Vogt judgment (Vogt v Germany, (GC) App no 17851/91, Series A no 323, 26 September 1995, at 61), active members of extremist parties could no longer be excluded from public service, which used to be part of German Constitutional practice. Furthermore, after the Incal judgment (Incal v Turkey, (GC) App no 22678/93, ECHR 1998-IV, 9 June 1998, at 73), Turkey changed its constitutional rules and limited the presence of military judges in criminal cases against civilians (see Georg Ress, ‘The Effect of Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order’ (2005) Texas International Law Journal 40(3) at 374–5). See also Chap 4, sect 4.3, in the text at n 292. 107 David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 25. 108 J.G. Merrills, The Development of International Law by the European Court of Human Rights, 2nd edn (Manchester: Manchester University Press, 1993) at 9. 109 Alec Stone Sweet and Helen Keller, ‘The Reception of the ECHR in National Legal Orders’ in Alec Stone Sweet and Helen Keller (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford:  Oxford University Press, 2008) at 7; Christoph Grabenwarter (2001) at 307; Regine Gerards, Die Europäische Menschenrechtskonvention im Konstitutionalisierungsprozess einer Gemeineuropäischen Grundrechtsordnung (Frankfurt am Main:  Peter Lang, 2007) at 117; Kostas Chryssogonos, ‘Zur Inkorporation der Europäischen Menschenrechtskonvention in den Nationalen Rechtsordnungen der Mitgliedstaaten’ (2001) Europarecht 36(1) at 59. 110 Regine Gerards, Die Europäische Menschenrechtskonvention im Konstitutionalisierungsprozess einer Gemeineuropäischen Grundrechtsordnung (Frankfurt am Main, Peter Lang:  2007) at 252, 257; Christian Walter, ‘Die Europäische Menschenrechtskonvention als Konstitutionalisierungsprozeß’ (1999) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 59(4) at 965; Christoph Grabenwarter, ‘Europäisches und Nationales Verfassungsrecht’ in Jörn Ipsen (ed), Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (60) (Berlin: Walter de Gruyter, 2001) at 307. 111 Opuz v Turkey, App no 33401/02, 9 June 2009 (not yet reported). 112 Opuz v Turkey, 9 June 2009, at 163.

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the Convention system of human rights protection can even be described as a supra-constitutional system.113 A European consensus can be seen to understand the rule of law as a requirement that national laws and executive actions conform to human rights. Also, there is a general trend to understand the rule of law as requiring constitutional review. A general development in European states can be shown towards the acceptance of judicial control over human rights.114 The protection of human rights through judicial review over the administration has become a central element of the rule of law in European states.115 The credibility of action by public authorities demands external judicial control over their compliance with human rights standards.116 Also, constitutional review is increasingly seen as required by the rule of law.117 The development of human rights, from programmatic rights to rights to which individuals can appeal in courts, can be described as one of the most important achievements in European constitutional law of the past decennia.118 Several western European countries have set up constitutional courts, among these France, Germany, Switzerland, Austria, Italy, Spain, and Portugal.119 Even the United Kingdom, by means of the Human Rights Act, has now established a form of national human rights review.120 Several Eastern European countries have also set up a system of constitutional control.121 These developments towards a broader acceptance of judicial control over human rights have been furthered by the setting up of the Convention system of protection of human rights.122 The ECtHR has furthered the development of independent judicial review in administrative cases through its interpretation of the term civil rights and obligations of Article 6(1).123 Also, the Convention has acquired an important position in the national legal orders of the member states. The position of judges in the national balance of power has been enhanced through the Convention.124 Judicial review over governmental acts regarding human rights standards has become the 113

Jacques Chevallier, L’État de droit, 4th edn (Paris: Montchrestien, 2003) at 109. Bruno Aguilera, ‘Law as a Limit to Power—the Origins of the Rule of Law in the European Legal Tradition’ in S. Galera (ed), Judicial Review, a Comparative Analysis inside the European Legal System Strasbourg (Strasbourg: Council of Europe Publishing, 2010) at 34. 115 Frits Stroink, ‘Judicial Control of the Administration’s Discretionary Powers (Le Bilan Executif—Juge Administratif )’ in Rob Bakker, Aalt Willem Heringa, and Frits Stroink (eds), Judicial Control, Comparative Essays on Judicial Review (Antwerp: Maklu, 1995) at 97. 116 Luzius Wildhaber, Solemn Hearing of the European Court of Human Rights on the Occasion of the Opening of the Judicial Year, Friday 20 January 2006, (Strasbourg: Council of Europe, 2006) at 8. 117 Bruno Aguilera (2010) at 34. 118 Armin von Bogdandy and Peter M. Huber, Handbuch Ius Publicum Europaeum (Vol  1) (Heidelberg: Müller, 2007) at 866. 119 Ernst-Wolfgang Böckenförde, ‘Verfassungsgerichtsbarkeit:  Strukturfragen, Organisation, Legitimation’ (1999) Neue juristische Wochenschrift 52(1) at 9; Jacques Chevallier, L’État de droit, 4th edn (Paris: Montchrestien, 2003) at 81. 120 Luc Heuschling, État de Droit, Rechtsstaat, Rule of Law (Paris: Dalloz, 2002) at 320; see also Chap 2, sect 2.3.1, in the text at n 82. 121 Ernst-Wolfgang Böckenförde (1999) at 9–17. 122 Nihal Jayawickrama, The Judicial Application of Human Rights Law, National, Regional and International Jurisprudence (Cambridge: Cambridge University Press, 2002) at 109–10. 123 David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 9 and 31. 124 ‘Le juge français voit son indépendance renforcée par rapport aux autres pouvoirs, grâce au principe du droit d’accès à un tribunal indépendant et impartial, consubstantiel à la rule of law.’ (Guy Canivet, 114

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norm in European states.125 The emphasis placed by the Convention upon judicial review of governmental acts has changed the national constitutional landscape.126 The judiciary has acquired more power, and judicial review has become more acceptable. The Convention system of human rights protection has thus brought unity to national concepts of the rule of law.127 It is consistent with this emerging European consensus on the rule of law to understand the rule of law in the context of the Convention to require the protection of human rights by the Convention system itself. The rule of law in the context of the Convention would then entail the individual application procedure before the ECtHR, because this procedure is key to the protection of the Convention rights in the national legal order. The ECtHR has related the rule of law to the individual application procedure,128 but to underline the unacceptability of flagrant abuse of power by the authorities and not to emphasize the central role of the individual application procedure to the Convention system of protection. In sum, to understand the rule of law to comprise the Convention system of human rights protection would be in harmony with the role of the ECtHR as a supra-national constitutional court and also with the emerging European consensus on the central position of the judiciary to protect human rights. Still, the ECtHR does not attempt to strengthen its authority by describing its own role in terms of the rule of law. Hesitance in this respect is laudable, as the international judicial control exercised by the Court is indirect and diffuse; the enforcement of its judicial decisions depends upon the legal systems of its member states. States are not required to incorporate the Convention into domestic law.129 Consequently, the ECtHR can only fulfil the function of a European constitutional court to the extent that the states accept its authority. The ECtHR has not asserted the supremacy of its judgments over the legal systems of the member states, although it has established that states are expected ‘L’Incidence de la Rule of Law sur le Système Judiciaire Français’ in Stephan Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel, and Beatrice Wagner Pfeifer (eds), Human Rights, Democracy and the Rule of Law, Liber Amoricum Luzius Wildhaber (Zurich: Dike Verlag, (2007) at 1179). 125 ‘The fact that the EU Constitutional treaty provides not only for the a Charter of Fundamental Rights but also for the accession of the EU to the Strasbourg Convention system powerfully demonstrates how important it has become today for the credibility of action by public authorities to allow external judicial control over their compliance with human rights standards.’ (Luzius Wildhaber (2005) at 8.) 126 Judge Martens held the following in his separate opinion in the Fischer case: ‘It seems justified to presume that legal thinking and practice in the member States generally go in the direction of acceptance of an “effective control” of the executive by the judiciary . . . In this context it is not without importance that all member States have now accepted a final control through the supervisory mechanism of the Convention, which is essentially judicial in nature.’ (Fischer v Austria, App no 16922/90, Series A no 312, 26 April 1995.) 127 Armin von Bogdandy and Peter M. Huber (2007) at 868. 128 In Illaşcu, the Court criticized the Russian Federation’s attempts to frustrate the rights to individual petition as running counter to the rule of law (Ilaşcu and ors v Moldova and Russia (GC), App no 48787/99, ECHR 2004-VII, 8 July 2004, at 481). See also Sabri Güneş v Turkey (GC), App no 27396/06, 29 June 2012, at 41–2 (not yet reported). 129 Ireland v United Kingdom (Pl), App no 5310/71, Series A  no 25, 18 January 1978, at 239; David Harris, Michael O’Boyle, and Colin Warbrick (2009) at 23.

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to take its judgments into account, also when they concern other states.130 An additional complicating factor and reason for hesitance is the relation between the Convention and other norms of international law, especially the UN Charter, which has also been described as a constitutional instrument, albeit of the international community.131 In Al Jedda v United Kingom132 the ECtHR has appeared to assert the position of the Convention vis-à-vis international obligations of states arising under the UN Charter via the equivalent protection doctrine.133 Still, the Court avoided openly establishing a relation of hierarchy between the Convention and the UN Charter.134 Also in the more recent case of Nada v Switzerland135 the ECtHR remained cautious and left it to national authorities to take up the review of the domestic implementation of UN Security Council sanctions.136

5 Conclusion To recapitulate, the ECtHR has strengthened the procedural focus of the Convention based on the rule of law. Articles 5, 6, 7, and 13 could thus be understood as part of the rule of law. The rule of law requires the existence of fair and effective procedures in national law and determines that these procedures may not be arbitrarily limited through national law. In this manner, the rule of law determines the form that national law must have. Still, even if these procedural rights are understood to form part of the rule of law, one cannot say that the rule of law limits the substantive contents of law. These are all procedural rights, and can be distinguished from rights such as the right to life and the prohibition of torture. These two last-mentioned rights are substantive rights, because they primarily concern the human condition as such, and not so much the manner in which the legal system is organized. The rule of law has most to offer when protecting individuals from some of the most far-reaching forms of government interference. Based on the rule of law, the ECtHR has set strict guidelines for national law in the event of interferences with the right to privacy. In criminal cases, the Convention also sets strict requirements to which national law must adhere. Even so, the quality requirements of legality 130

Opuz v Turkey, App no 33401/02, 9 June 2009, at 163 (not yet reported). Bardo Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) Columbia Journal of Transnational Law Association 36 at 529–619. 132 Al-Jedda v United Kingdom (GC), App no 27021/08, ECHR 2011, 7 July 2011. 133 Al-Jedda v United Kingdom (GC), 7 July 2011, at 102. 134 Marko Milanović, ‘Norm Conflict in International Law: Whither Human Rights?’ (2009) Duke Journal of Comparative & International Law 20(1) at 101, 114, 123; Marko Milanović, ‘European Court Decides Al-Skeini and Al-Jedda’ European Journal of Internation Law, 7 July 2011 (available at:  ) (last accessed 27 July 2013). 135 Nada v Switzerland (GC), App no 10593/08, ECHR 2012, 12 September 2012. 136 Nada v Switzerland (GC), 12 September 2012, at 212–14]; Tobias Thienel, ‘Nada v Switzerland: The ECtHR Does Not Pull a Kadi (But Mandates It for Domestic Law)’ Invisible College Blog 12 September 2012 (available at:  ) (last accessed 27 July 2013). 131

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and the procedural guarantees do not concern the content of the law, but only the form. Thus, in the case law, the rule of law cannot be seen to protect a free sphere of individuals. Moreover, the quality requirements of legality and, especially, the procedural guarantees are of importance to all Convention rights, and also when social positive obligations on the part of the state are concerned. The rule of law does not include a hierarchy of norms, or only indirectly, through the requirement of legality that national law must be complied with. Thus to the extent that national law includes a hierarchy of norms, legality as a concept of the case law also requires that this hierarchy be respected. Neither does the ECtHR refer to the rule of law to assert its authority as a constitutional court, even though the success of the individual application procedure has placed the Court at a central position in the European developments towards increased acceptance of constitutional review. Understanding the rule of law as a demand that states accept the supervision exercised by the Strasbourg Court would match that legal development. The hesitance of the Court is understandable, seeing how the Court’s authority continues to depend upon cooperation by the domestic authorities.

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6 Democracy 1 Introduction In this chapter, the relation between the rule of law and democracy will be addressed. The chapter will start with an analysis of the concept of democracy as it features in the European Convention on Human Rights1 (‘the Convention’) and in the case law of the European Court of Human Rights (‘ECtHR’, ‘Strasbourg Court’ or simply ‘the Court’). As explained in Chapter 2, democracy can have different connotations, and two of these are majority rule and participatory democracy. The first is a formal concept of democracy that is only focused on the method of decision-making; the second is inclusive of substantive values such as the autonomy and equal worth of individuals. In the case law of the ECtHR, democracy has the second connotation. Also, in the case law democracy has a core contents, which will be described in section 2.1 and similarly the concept has wider connotations, which will be described in section 2.2. This first part of this chapter will not only analyse democracy but will also show, in section 2.3, that the rule of law should be seen as an element of democracy in the case law. The chapter will then take a different perspective and analyse whether the rule of law as a concept in the case law also requires democracy. First, the relation between legality—which is a core element of the rule of law—and democracy will be analysed in section 3.1. Secondly, in section 3.2, it will be shown that the rule of law has wider connotations than legality and judicial safeguards in the case law, which suggest that the rule of law and democracy cannot be separated. Next, the conclusion in section 4 will address the relation between the rule of law, democracy, and human rights protection as the triptych of Convention values.

2 Defining Democracy 2.1 Democracy based on pluralism and participation Democracy in the context of the Convention primarily denotes a pluralist society, protected through the freedom of expression, the freedom of assembly, and 1 Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953.

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voting rights.2 Pluralism is understood by the ECtHR as ‘the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts’.3 Certain Convention rights are most important for the concept of democracy in the context of the Convention.4 These are the freedom of expression; the freedom of assembly; the freedom of thought, conscience and religion; and the right to free elections, protected respectively by Articles 9, 10, and 11 of the Convention and Article 3 of Protocol 1. These provisions are all concerned with a procedural view of democracy that is centred on debate and on maintaining a plurality of opinions.5 In Handyside v United Kingdom6 the ECtHR explained the importance of freedom of expression to ensure pluralism of ideas. The Court found that freedom of expression also applies to information or ideas that ‘offend, shock or disturb’ the state or any sector of the population. It noted that these are the demands of ‘pluralism, tolerance and broad-mindedness without which there is no “democratic society”.’7 This phrase has often been repeated and thus confirmed in later judgments. Furthermore, Article 10 protects the freedom of the press, which the ECtHR has found to be central to a democratic society in which everyone can participate in the free political debate. The Court has held that ‘the freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion.’8 The ECtHR has related Articles 10 and 11 to each other.9 It has noted that the ‘protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11’.10 The Court has noted that a ‘free political debate’ is at the ‘very core of the concept of a democratic society’.11 It has also stated that ‘[t]he essence of democracy is its capacity to resolve problems through open debate.’12 Not only are political parties seen as important to the proper functioning of democracy, but so too are organizations formed for other purposes.13 The ECtHR has also described the freedom of 2 Susan Marks, ‘The European Convention on Human Rights and Its “Democratic Society” ’ (1995) The British Yearbook of International Law 66, at 231. 3 Gorzelik and ors v Poland (GC), App no 44158/98, ECHR 2004-I, 17 February 2004, at 92. 4 Philip Leach, Taking a Case to the European Court of Human Rights, 2nd edn (Oxford: Oxford University Press, 2005) at 162. 5 C.A. Gearty, ‘The European Court of Human Rights and the Protection of Civil Liberties: An Overview.’ (1993) Cambridge Law Journal 52(1) at 117. 6 Handyside v United Kingdom (Pl), App no 5493/72, Series A no 24, 7 December 1976. 7 Handyside v United Kingdom (Pl), 7 December 1976, at 49. See also Refah Partisi (the Welfare Party) and ors v Turkey, App no 41340/98, 31 July 2001, at 44 (unreported). 8 Castells v Spain, App no 11798/85, Series A no 236, 23 April 1992, at 43. 9 Refah Partisi (the Welfare Party) and ors v Turkey, 31 July 2001, at 44. 10 Stankov and the United Macedonian Organisation Ilinden v Bulgaria, App no 29221/95, ECHR 2001-IX, 2 October 2001, at 85. 11 Castells v Spain, 23 April 1992, at 43. 12 Stankov and the United Macedonian Organisation Ilinden v Bulgaria, 2 October 2001, at 97. 13 Gorzelik and ors v Poland (GC), 17 February 2004, at 92.

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thought, conscience, and religion as one of the foundations of a democratic society, because it also considers this right important to maintaining pluralism.14 The right to free elections includes both passive and active voting rights. The ECtHR has held that democracy includes the principle of universal suffrage.15 Universal suffrage is understood as necessary to uphold the democratic validity of the legislature and the laws enacted by that legislature.16 Also, Article 3 of Protocol 1 demands that states hold elections at reasonable intervals; the Court has stressed the importance of regular elections for the expression of the will of the people.17 It has also emphasized the crucial role played in a representative democracy by parliament. The Court has described parliament as ‘the main instrument of democratic control and political responsibility . . . .’18 It has explained Article 3 as seeking to fulfil two objectives that are difficult to reconcile. The opinions of the people must be fairly faithfully reflected. Also, currents of thought must be channelled so as to ‘promote the emergence of a sufficiently clear and coherent political will’.19 Article 3 of Protocol 1 is mostly concerned with the procedural side of democracy and representation, and Articles 9, 10, and 11 more with pluralism. Still, the ECtHR has attempted to reconcile the different elements of democracy. The Court has found that Article 3 of Protocol 1 and Articles 10 and 11 are all concerned with pluralism.20 It has stated the following about these rights: ‘There is undoubtedly a link between all of these provisions, namely the need to guarantee respect for pluralism of opinion in a democratic society through the exercise of civic and political freedoms.’21 To sum up, democracy in the case law entails a broad protection of the freedom of expression. Contracting states must ensure that opinions can be expressed openly. Furthermore, elections must be held regularly. The right to vote is aimed at ensuring that public opinion can be expressed. The emphasis placed by the ECtHR on these specific rights shows that democracy in the case law is mainly concerned with representation and participation. Accordingly, democracy in the context of the Convention cannot be understood merely in a formal sense as majority rule. Democracy must be primarily understood as participatory democracy, with respect for differences of opinion and belief, and focused on freedom of expression as a means of ensuring active involvement of the people in the decision-making processes.22 14 Kokkinakis v Greece, App no 14307/88, Series A no 260-A, 25 May 1993, at 3. See also Leyla Şahin v Turkey (GC), App no 44774/98, ECHR 2005-XI, 10 November 2005, at 104. 15 Hirst v United Kingdom (GC), App no 74025/01, ECHR 2005-IX, 6 October 2005, at 62; Yumak and Sadak v Turkey, App no 10226/03, 30 January 2007, at 65 (unreported). 16 Hirst v United Kingdom (GC), 6 October 2005, at 62; Georgian Labour Party v Georgia, App no 9103/04, 8 July 2008, at 119 (not yet reported). 17 Georgian Labour Party v Georgia, 8 July 2008, at 91. 18 Yumak and Sadak v Turkey, 30 January 2007, at 73; affirmed by Yumak and Sadak v Turkey (GC), App no 10226/03, 8 July 2008, at 140 (not yet reported). 19 Yumak and Sadak v Turkey, 30 January 2007, at 62; Yumak and Sadak v Turkey (GC), 8 July 2008, at 112. 20 Yumak and Sadak v Turkey (GC), 8 July 2008, at 107. 21 Zdanokav v Latvia (GC), App no 58278/00, ECHR 2006-IV, 16 March 2006, at 115. 22 Jordan J. Paust, Bernard Schloh, Theo van Boven, and Thomas M. Franck, ‘Democracy and Legitimacy—Is There an Emerging Duty to Ensure a Democratic Government in General and Regional

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2.2 The only political model compatible with the Convention Although democracy in the context of the Convention primarily denotes pluralism, freedom of expression, and participation, it also implies protection of the other Convention rights. Apart from the freedom of expression, the freedom of assembly, and passive and active voting rights, the ECtHR has described several other Convention rights as being fundamental to a democratic society. Notably, it has found that the right to a fair trial;23 the right of liberty and security; the prohibition of slavery and forced labour;24 the right to life;25 and the right not to be subjected to torture or inhuman or degrading treatment26 are central to a democratic society. The Court has described the protection of Convention rights as especially important in the protection of the rights of individuals belonging to a minority.27 The notion of a democratic society permeates the whole Convention.28 Democracy in the context of the Convention is concerned with the balance between the rights of the individual and the democratic pursuit of the public interest.29 The Court has noted: The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention . . . Fundamental Freedoms . . . are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend.30

The proportionality principle is particularly intended to achieve a balance between the rights of the individual and the demands of democratic society.31 The ECtHR has derived the proportionality principle from the notion of democracy.32 One Customary International Law?’ ASIL/NVIR Joint Conference—Contemporary International Law Issues: Sharing Pan-European and Americal Perspectives (The Hague:  Martinus Nijhoff Publishers, 1991) at 131. 23 Airey v Ireland, App no 6289/73, Series A no 32, 9 October 1979, at 24. 24 Siliadin v France, App no 73316/01, ECHR 2005-VII, 26 July 2005, at 112. 25 Akpınar and Altun v Turkey, App no 56760/00, 27 February 2007, at 47 (unreported). 26 Kudła v Poland (GC), App no 30210/96, ECHR 2000-XI, 26 October 2000, at 90; Z and ors v United Kingdom (GC), App no 29392/95, ECHR 2001-V, 10 May 2001, at 73. See also Soering v United Kingdom (Pl), App no 14038/88, Series A no 161, 7 July 1989, at 88. 27 Gorzelik and ors v Poland (GC), 17 February 2004, at 93. 28 Theo van Boven, ‘The Preamble of the Convention on Human Rights and Fundamental Freedoms’ in L.E. Pettiti and P.H. Imbert (eds), La Convention Europeenne des Droit de l’Homme Commentaire Article par Article (Paris: Economica, 1995) at 407. 29 Steven Greer, The European Convention on Human Rights, Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006) at 196. 30 Klass and ors v Germany (Pl), App no 5029/71, Series A no 28, 6 September 1978, at 59; confirmed by United Communist Party of Turkey and ors v Turkey (GC), App no 19392/92, ECHR 1998-I, 30 January 1998, at 45. 31 David Harris, Michael O’Boyle, and Colin Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford: Oxford University Press, 2009) at 10, 358–9. 32 J.G.C. Schokkenbroek, Toetsing aan de Vrijheidsrechten van het Europees Verdrag tot Bescherming van de Rechten van de Mens (Zwolle:  W.E.J. Tjeenk Willink, 1996) at 192; G. Cohen-Jonathan, ‘Respect for Private and Family Life’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht:  Martinus Nijhoff Publishers, 1993) at 416–17.

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could say that even in those articles where democratic society is not expressly mentioned, the concept is still of primary importance. The Convention system of human rights protection is itself an attempt to balance the demands of democratic society with respect for human rights.33 Democracy is also the only political model compatible with the Convention.34 At the same time, protection of the Convention rights is necessary to safeguard the values of democratic society. The ECtHR has held: Democracy is without doubt a fundamental feature of the European public order. That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights. The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society. In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘necessary in a democratic society’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘democratic society’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.35

Thus the concept of democracy that underlies the Convention is centred on the protection of rights: both rights that concern the freedom of expression and elections, and substantive rights, such as the right to life. This implies a view of democracy built on substantive values that cannot be interfered with by a democratic majority. On the one hand, democracy refers to the national decision-making process. On the other, democracy sets a Convention standard of pluralism, tolerance, and broad-mindedness, and requires the protection of substantive rights. Consequently, to a certain extent, the protection of Convention rights conflicts with the national pursuit of the democratic interest. The Convention is a treaty, binding under international law, which limits the possible outcomes of the national democratic decision-making process.36 As elaborated in Chapter 2, a balance must be struck between the protection of human rights and democracy. When human rights are seen as fundamental 33

G. Cohen-Jonathan (1993) at 425. United Communist Party of Turkey and ors v Turkey (GC), 30 January 1998, at 45; Zdanoka v Latvia (GC), 16 March 2006, at 98. 35 United Communist Party of Turkey and ors v Turkey (GC), 30 January 1998, at 45. 36 During the preparatory process of the Convention, one of the arguments against the setting up of a court was that such a court would undermine national democracy (Council of Europe, Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights—Recueil des Travaux Préparatoires de la Convention Européenne des Droits de L’homme. Vol. 1, Preparatory Commission of the Council of Europe Committee of Ministers, Consultative Assembly, 11 May–8 September 1949 (The Hague: Martinus Nijhoff Publishers, 1975) at 6 and 168). 34

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norms that must be respected, questions arise as to how this supremacy must be institutionalized and who has the last say. Different choices can be made. It may be parliament that is given the key position for upholding the primary position of human rights, or a constitutional court. Also, in the context of the Convention a balance is sought between democracy and human rights protection. At the same time, the Convention takes up a special position, because the ECtHR must achieve a balance between human rights protection and the outcomes of different national democratic decision-making processes. Democracy is an important reason for the Convention protection system to maintain a subsidiary role and only to demand a minimum rule of law standard. The ECtHR should not assume legislative functions lacking a European consensus.37 Especially where the Convention is most effective in setting norms for national law, it also risks interfering too far in the national democratic process.38 The rule of law allows the ECtHR to focus on the procedural and formal side of the Convention rights. In this sense, the rule of law allows the Court to maintain a subsidiary role. On the other hand, the rule of law has also been a reason for a strict review of national laws, for instance in the area of secret surveillance methods. This could be seen as problematic, because abstract norm control by the ECtHR can lead to a conflict between the legislative branch and the judiciary.39 In the case of the Convention, conflict can arise between the ECtHR and national legislative organs.40 However, as long as the rule of law concept of the Convention reflects the common legal standards of the member states, a strict review based on the rule of law is acceptable and cannot be seen as an infringement of national decision-making powers, but rather as a protection of democratic values.

2.3 The importance of judicial safeguards to democracy The ECtHR has repeatedly described the procedural safeguards that are central to the rule of law as also essential in a democratic society. Moreover, it has described judicial control over the executive as an essential element of both the rule of law and of democracy.41 This shows that the rule of law must be understood as a value of a democratic society in the Convention.42 In the literature on the Convention, the rule of law is also generally understood as an element of the democracy concept of the ECtHR.43 Furthermore, the Court 37 Joint dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler, and Jebens in Hirst v United Kingdom (GC), 6 October 2005. 38 Steven Greer (2006) at 40. 39 Laszlo Solyom, ‘Constitutional Justice—Some Comparative Remarks’ (2003) Vilnius, Venice Commission, at 2. 40 Dinah Shelton, ‘Subsidiarity and Human Rights Law’ (2006) Human Rights Law Journal 27(1–4) at 11. 41 Klass and ors v Germany (Pl), 6 September 1978, at 55. 42 Clare Ovey and Robin C.A. White, The European Convention on Human Rights, 5th edn (Oxford: Oxford University Press, 2010) at 78. 43 J.G. Merrills, The Development of International Law by the European Court of Human Rights, 2nd edn (Manchester:  Manchester University Press, 1993) at 126–34; J.G.C. Schokkenbroek (1996) at

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has described the rule of law as one of the fundamental principles of a democratic society.44 Besides, in the Preamble of the Statute of the Council of Europe it is written that individual freedom, political liberty, and the rule of law are principles which ‘form the basis of all genuine democracy’. Consequently, it can be said that the rule of law is an element of democracy in the context of the Convention. The ECtHR has related several aspects of the right to a fair trial to democratic principles. In one of the first cases decided by the ECtHR, it remarked on the importance of Article 6 and the right to a fair trial and the right of access to court for a democratic society. The Court stated the following: ‘In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6(1) would not correspond to the aim and the purpose of that provision.’45 In addition, it has noted that the rights of access to court cannot be limited to asking a preliminary question with ‘regard to the rule of law in a democratic society . . . .’46 Furthermore, the Court has acknowledged the ‘importance in a democratic society of maintaining the rule of law and the authority of the judiciary . . . .’47 The ECtHR has connected the effectiveness of the right of access to court to democratic principles.48 In Airey v Ireland49 the Court for the first time established the right of access to court to include positive obligations on the part of the state. It argued that the right to a fair trial should be practical and effective, especially given the prominent place of the right to a fair trial in a democratic society.50 The ECtHR has also established that the right to a public hearing is of central importance to democracy.51 The right to liberty contains judicial safeguards that are essential to the rule of law. The Strasbourg Court has consistently emphasized the importance of the right to liberty in a democratic society.52 The ECtHR has described the right to liberty to be of fundamental importance to a democratic society.53 It has found that ‘judicial control of interferences by the executive with the individual’s right to liberty 191; Clare Ovey and Robin C.A. White (2010) at 77–8; Anika Logemann, Grenzen der Menschenrechte in Demokratischen Gesellschaften, die ‘Demokratische Gesellschaft’ als Determinante der Grundrechtsschranken der Europäischen Menschenrechtskonvention (Baden-Baden: Nomos, 2004) at 291–2. 44 Stere and ors v Romania, App no 25632/02, 23 February 2006, at 53 (unreported); Broniowski v Poland (GC), App no 31443/96, ECHR 2004-V, 22 June 2004, at 147; Klass and ors v Germany (Pl), 6 September 1978, at 55. 45 Delcourt v Belgium, App no 2689/65, Series A no 11, 17 January 1970, at 25. 46 Cordova v Italy (No 1), App no 40877/98, Reports of Judgments and Decisions 2003-I, 30 January 2003, at 52. 47 Steel and ors v United Kingdom, App no 24838/94, ECHR 1998-VII, 23 September 1998, at 107. 48 Aït-Mouhoub v France, App no 22924/93, ECHR 1998-VIII, 28 October 1998, at 52. 49 Airey v Ireland, App no 6289/73, Series A no 32, 9 October 1979. 50 Airey v Ireland, 9 October 1979, at 24; see also Kreuz v Poland, App no 28249/95, ECHR 2001-IV, 19 June 2001, at 66; Malahov v Moldova, App no 32268/02, 7 June 2007, at 30 (unreported). 51 Lawless v Ireland (No 1), App no 332/57, Series A no 1, 14 November 1960; United Communist Party of Turkey and ors v Turkey (GC), 30 January 1998, at 45; B and P v United Kingdom, App no 36337/97, ECHR 2001-III, 24 April 2001, at 36. 52 Vaudelle v France, App no 35683/97, ECHR 2001-I, 30 January 2001, at 61. 53 Assanidze v Georgia (GC), App no 71503/01, ECHR 2004-II, 8 April 2004, at 169; Ladent v Poland, App no 11036/03, 18 March 2008, at 45 (not yet reported).

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provided for by Article 5 is implied by one of the fundamental principles of a democratic society, namely the rule of law’.54 The Court has also stated that ‘in a democratic society subscribing to the rule of law, no detention that is arbitrary can ever be regarded as “lawful”.’55 Also, in Klass v Germany56 (‘the Klass case’), where the ECtHR for the first time emphasized the importance of judicial control over the executive, the rule of law was described as a fundamental principle of a democratic society.57 In the case law, apart from judicial safeguards, the quality requirements of legality are not related to democratic principles. However, in relation to judicial control and Articles 5 and 6, the case law clearly indicates that democracy is the broader concept, which encompasses the procedural safeguards demanded by the rule of law. Thus the rule of law can be described as one of the principles of a democratic society in the context of the Convention.

2.4 Analysis Section 2.1 has shown that democracy is primarily concerned with freedom of thought, expression, assembly, and voting rights. Democracy is essentially the requirement of a pluralist society in which individuals participate. In this sense, the rule of law and democracy have a different focus. The first is centred on legality and judicial safeguards, the second on maintaining a society in which different opinions can coexist and find expression. Even so, democracy is also the only political model compatible with the Convention, underlies the whole Convention, and requires the protection of all Convention rights. The ECtHR has repeatedly emphasized the importance of judicial safeguards to democracy. Thus the rule of law is best seen as part of the wider concept of democracy. The rule of law allows the Court to maintain its subsidiary role through the focus on procedural safeguards. At the same time, in the cases where it reviews national law by strict standards based on the rule of law, this should be understood as a protection of democratic values rather than as an infringement of the national democratic decision-making process.

3 The Rule of Law Requiring Democracy Section 2.3 has shown that in the case law, the rule of law is one of the central values of democracy. The question which as yet remains unanswered is whether legality, as a core element of the rule of law, also requires law to have a democratic heritage.

54 Brannigan and McBride v United Kingdom, App nos 14553/89 and 14554/89, Series A no 258-B, 25 May 1993, at 48. 55 Winterwerp v Netherlands, App no 6301/73, Series A no 33, 24 October 1979, at 39. 56 Klass and ors v Germany (Pl), App no 5029/71, Series A no 28, 6 September 1978. 57 Klass and ors v Germany (Pl), 6 September 1978.

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3.1 The democratic heritage of norms In national legal systems such as those of Germany, the United Kingdom, and France, legality is also understood as a requirement that laws must have a democratic origin.58 The clearest example is Germany, where the constitution sets limits on the delegation of law-making power to government. Legality thus forms a strong link between democracy and the rule of law in these legal systems. In the case law of the ECtHR, legality does not include an autonomous requirement for laws to have a democratic origin. We have seen that legality in the context of the Convention has two aspects. First, legality demands the existence of a law in the domestic legal order, and secondly, legality sets quality requirements to that law.59 The second aspect of legality can be seen as the autonomous Convention standard of legality. The quality requirements the ECtHR has set for domestic law do not require that a law has a democratic heritage.60 Still, legality could be seen to require democratic participation in the legislative process, because national law generally requires laws to have a democratic origin. In different cases, the ECtHR has taken into account whether parliament had delegated law-making powers. For example, in the Klass case, the Court explicitly mentioned the parliamentary heritage of the law on which the interference with the applicant’s rights was based.61 In this case, it referred to Article 10 of the German Basic Law, which required that restrictions on the secrecy of mail, post, and telecommunications can only be ordered pursuant to a statute. Also, in the case of X v United Kingdom62 the EComHR found it relevant that the domestic regulation based on delegation did not exceed the possibilities foreseen by the original Act.63 Furthermore, in the cases of Silver v United Kingdom and Golder v United Kingdom64 (‘the Silver and Golder cases’) the ECtHR established the democratic heritage of the Prison Rules.65 In the case of Barthold v Germany66 the Court examined the compliance with domestic law and procedures to determine whether the interference with the freedom of expression was lawful. It also observed that the law-making power had been duly delegated: Unlike the first two of these provisions, the third emanated from the Veterinary Surgeons’ Council . . . and not directly from parliament. It is nonetheless to be regarded as a ‘law’ within the meaning of Article 10 para. 2 (art. 10-2) of the Convention. The competence of the Veterinary Surgeons’ Council in the sphere of professional conduct derives from the independent rule-making power that the veterinary profession—in company with 58

See Chap 2, sect 6.1 and especially in the text around n 369. See further Chap 3, sect 3.1. 60 Theodor Schilling, ‘ “Gesetz” und Demokratieprinzip: Eine Inkohärenz in der Rechtsprechung des EGMR?’ (2006) Archiv des Völkerrechts 44(1) at 59. 61 Klass and ors v Germany (Pl), 6 September 1978, at 16–17, 40, 43. 62 X v United Kingdom, (Pl), App no 7308/75, 16 DR 32, 12 October 1978. 63 X v United Kingdom, (Pl), 12 October 1978, at 34. 64 Silver and ors v United Kingdom, App no 5947/72, Series A no 61, 25 March 1983; Golder v United Kingdom (Pl), App no 4451/70, Series A no 18, 21 February 1975. 65 Silver and ors v United Kingdom, 25 March 1983, at 25; Golder v United Kingdom (Pl), 21 February 1975, at 17. 66 Barthold v Germany, App no 8734/79, Series A no 90, 25 March 1985. 59

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other liberal professions—traditionally enjoys, by parliamentary delegation, in the Federal Republic of Germany . . . Furthermore, it is a competence exercised by the Council under the control of the State, which in particular satisfies itself as to observance of national legislation, and the Council is obliged to submit its rules of professional conduct to the Land Government for approval.67

On the basis of these cases it is clear that compliance with domestic rules concerning the delegation of law-making powers is relevant for the lawfulness of interferences with Convention rights. Still, it cannot be argued that the ECtHR upholds an autonomous standard regarding the delegation of law-making power. It cannot be said that administrative rules only conform to legality and may only limit Convention rights if they are based on parliamentary laws.68 The examination of the lawfulness of the delegation of law-making power is the result of the first requirement of legality—the requirement of compliance with domestic law. In the cases described above, it was domestic law that restricted the delegation of law-making powers to the executive. For example, in the Silver and Golder cases, Article 47(1) of the Prison Act empowered the Home Secretary to make rules for the regulation and management of prisons and at the same time determined that such rules must be contained in a statutory instrument and laid before parliament. The fact that domestic laws and regulations must be complied with does not implicate the existence of an autonomous Convention standard regarding the delegation of law-making powers. Still, Coëme v Belgium69 (‘the Coëme case’) and the recent case of the DMD Group AS v Slovakia70 (‘the DMD Group case’) are exceptions in which the ECtHR has emphasized the importance of the democratic heritage of national law based on the Convention. In these cases, the Court set an autonomous standard that law must emanate from a democratic legislature. These cases concerned the demand that a tribunal must be established by law. The Court decided that the rules of procedure of the courts must emanate from a parliamentary law.71 Also, in the admissibility decision of Accardi v Italy72 (‘the Accardi case’) the ECtHR emphasized that the democratic heritage of laws establishing a tribunal ensure the legitimacy of the tribunal. The ECtHR found that a ‘body which was not established in accordance with the wishes of the legislature would, by definition, lack the legitimacy required in a democratic society to hear individual cases’.73 Accordingly, in regard to the laws that establish a tribunal, the Strasbourg Court has specifically required these to emanate directly from the legislature. Thus law-making powers in this area of law may not be delegated to government, and the mere democratic heritage of these laws is not sufficient. These cases are special, because the 67

Barthold v Germany, 25 March 1985, at 46. For a different view see Regina Weiss, Das Gesetz im Sinne der Europäischen Menschenrechtskonvention (Berlin: Duncker & Humblot, 1996) at 77. 69 Coëme and ors v Belgium, App no 32492/96, ECHR 2000-VII, 22 June 2000. 70 DMD Group, AS v Slovakia, App no 19334/03, 5 October 2010 (unreported). 71 Coëme and ors v Belgium, 22 June 2000, at 98; DMD Group, AS v Slovakia, 5 October 2010, at 59. 72 Accardi and ors v Italy, App no 30598/02, ECHR 2005-II, 20 January 2005. 73 Accardi and ors v Italy, 20 January 2005. 68

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parliamentary heritage of the law is seen as necessary to ensure the independence of the judiciary from the executive. As was shown, independence of the judiciary is an element of the rule of law in the case law.74 In addition, in Scoppola v Italy (No 2)75 (‘the Scoppola case’)the ECtHR emphasized the importance of the democratic origin of laws to legality. In this case, the significance of the democratic heritage of the law arose from a Convention provision and not from domestic law. The Court interpreted foreseeability to include the lex mitior principle. It found that only such punishment that the legislator and the community it represents consider appropriate may be accorded: [I]t is consistent with the principle of the rule of law, of which Article 7 forms an essential part, to expect a trial court to apply to each punishable act the penalty which the legislator considers proportionate. . . . In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State—and the community it represents—now consider excessive.76

Thus in this case the Strasbourg Court emphasized the central role of the democratic legislature to determine punishments. At the same time, subsequent case law must clarify whether the lex mitior principle necessarily requires laws to have a democratic heritage. Possibly laws of lower rank must also be given preference if they are favourable to the accused. Apart from the Coëme, DMD Group, Accardi, and Scoppola cases, the parliamentary heritage of a law is not an aspect of the quality of national law. Aside from these special cases, the legality concept in the context of the Convention does not include an autonomous standard for the democratic heritage of national laws.77 The requirement that laws must have democratic heritage is dependent on national law. As the requirement is not autonomous, it is also not a strict requirement. As we have seen, legality first requires compliance with national laws and procedures. Thus, since most national legal systems require laws to have a democratic heritage, the legality concept in the context of the ECtHR could also be understood to require laws to emanate from a democratic legislature.78 Still, it must be taken into account that the Court does not often strictly review whether national law is complied with. In many cases, it only looks at the effects of the interpretation of national law by domestic courts.79 A requirement arising from national law—entailing that law 74

See Chap 4, sect 4.2. Scoppola v Italy (No 2) (GC), App no 10249/03, 17 September 2009 (not yet reported). 76 Scoppola v Italy (No 2) (GC), 17 September 2009, at 108. 77 Rainer Grote and Konstantin Meljnik, EMRK/GG: Konkordanzkommentar zum Europäischen und Deutschen Grundrechtsschutz (Tübingen: Mohr Siebeck, 2006) at 354. 78 Frowein and Peukert write: ‘Nicht eindgültig eintschieden ist in diesem Zusammenhang freilich, inwiefern die Rechtsgrunglage durch eine Parlementsgesetz vorgeprägt sein muß.’ ( Jochen Abr. Frowein and Wolfgang Peukert, Die Europäische Menschenrechtskonvention, EMRK-Kommentar, 2nd edn (Kehl/Strasbourg/Arlington NP:  Engel Verlag, 1996) at 332; Dröge understands the legality concept as developed by the ECtHR to be an expression of democracy (Cordula Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (Berlin:  Springer, 2003) at 348). 79 See Chap 3, sect 3.1, in the text around n 90. 75

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must emanate from a democratic legislature—will, consequently, not be strictly applied, either. On the one hand, it would be consistent with the central position of democracy in the Convention if legality were to include an independent requirement that law must spring from democratic deliberation.80 The ECtHR has repeatedly remarked that democracy is the only political model compatible with the Convention.81 What does such a statement mean if laws are not required to have a democratic heritage?82 On the other hand, the legal systems of the member states show large differences with regard to the organization of the legislature. In France, for instance, a strict separation exists between the powers of parliament to legislate and the powers of government to regulate.83 Given these wide divergences—also reflected in the material concept of law utilized by the ECtHR84—legality could only in a general sense require laws to have a democratic origin. Also, in the national legal systems, different restrictions are placed on the manner in which law-making power may be delegated. A Convention legality standard cannot aim at the same level of sophistication. Consequently, it fits the subsidiary role of the Convention that legality does not include an autonomous requirement for laws to have a democratic heritage.85 On a general level, the Strasbourg Court in Refah Partisi (the Welfare Party) v Turkey86 (‘the Welfare Party case’) described legality and democracy as interdependent. This case concerned the dissolution of a political party by the Turkish Constitutional Court. The grounds for the dissolution had been that the party had become a centre of activities contrary to the principle of secularism. One of the main difficulties posed by the Welfare Party to the Turkish constitutional system was the proposal of this political party to establish a plurality of legal systems. The ECtHR developed its view of legality and democracy with regard to this proposal. The Court judged that the proposal to establish a plurality of legal systems would result in a situation where everyone is categorized according to their religious beliefs. Thus sharia, or the Muslim religious laws, would be applied to Muslims. According to the ECtHR, the introduction of a plurality of legal systems would discriminate between individuals with regard to their enjoyment of public freedoms.87 It decided that a plurality of legal systems would not establish distinctions on the basis of relevant differences and would thus be contrary to the rule of law. Additionally, the application of religious law would result in static law and individuals would 80 Theodor Schilling, ‘ “Gesetz” und Demokratieprinzip: Eine Inkohärenz in der Rechtsprechung des EGMR?’ (2006) Archiv des Völkerrechts 44(1) at 60. 81 United Communist Party of Turkey and ors v Turkey (GC), 30 January 1998, at 45; Zdanoka v Latvia (GC), 16 March 2006, at 98. 82 In comparison, the word ‘Laws’ in Article 30 of the American Convention on Human Rights refers to formal laws, enacted in a democratic manner. The Inter-American Court on Human Rights has ruled that the democratic means by which the laws are created ensures the legitimacy of these laws and is a protection against arbitrary government interference. Inter-American Court on Human Rights, Advisory Opinion Oc-6/86 ‘The Word “Laws” in Article 30 of the American Convention on Human Rights’, 9 May 1986, at 17, 26–7, 32. 83 See Chap 2, sect 2.3.3, in the text around n 161. 84 85 On the material view of law, see Chap 3, sect 3.2. Anika Logemann (2004) at 178–80. 86 Refah Partisi (the Welfare Party) and ors v Turkey, App no 41340/98, 31 July 2001 (unreported). 87 Refah Partisi (the Welfare Party) and ors v Turkey, 31 July 2001, at 70.

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not have a say over the content of the law. The ECtHR judged that sharia is not compatible with pluralism or the constant evolution of public freedoms.88 The application of religious laws would result in insufficient possibility to change the law and thus be incompatible with democracy. Consequently, in this case the Court described the rule of law (or legality) as concerning the question of whether the law does not distinguish arbitrarily between different people, whereas democracy demands that the law is flexible and that people have influence over the law. The ECtHR found that the rule of law must ensure that law establishes distinctions on the basis of relevant differences. The Court noted that this will only be possible in a democratic system where the people participate in the law-making process.89 Thus it explained that democracy is indispensible to legality to ensure the legitimacy of the law. Legitimacy here is concerned with the content of the law, with the relevant differences. The ECtHR understands legitimacy to arise from popular consent through democratic participation. Also, in cases that concern the right to free elections, which is protected in Article 3 of the additional Protocol, the ECtHR has established the importance of democratic participation for legality. The Court has described the principle of universal suffrage as necessary to uphold the democratic validity of the legislature and the laws enacted by that legislature.90 The pre-eminent position of democracy could also be evidenced by the relation between the legislature and the judiciary and the review power of courts. Judicial restraint in reviewing laws that emanate from democratic deliberation could, in particular, be evidence of the central position assigned to popular consent to norms. Courts could be only allowed to apply the law and not to develop the law through interpretation. Such a restriction on the power of courts could show the primary position in a legal system of the democratic legislature to establish the law.91 In the case law, no primary position seems to be given to national legislatures over the judiciary. The Convention does not require domestic courts to review legislation,92 but nor does it prohibit the review of legislation by domestic courts. The ECtHR itself also reviews interferences with human rights laws when they are the result of laws that are enacted by parliaments of the member states.93 Moreover, in the case law of the ECtHR, courts have a primary position to interpret the law, and the Court attaches much value to interpretative case law of domestic courts. Also, the ECtHR has often remarked that national courts especially are primarily responsible for interpreting domestic law.94 Thus, in relation 88

Refah Partisi (the Welfare Party) and ors v Turkey, 31 July 2001, at 70–2. Refah Partisi (the Welfare Party) and ors v Turkey, 31 July 2001, at 43. 90 Hirst v United Kingdom (GC), 6 October 2005, at 62; Georgian Labour Party v Georgia, 8 July 2008, at 119. 91 Especially in France, courts have long had only a marginal role as a result of the distrust of a ‘gouvernement des juges’. See also Chap 2, sect 2.3.3. 92 James and ors v United Kingdom (Pl), App no 8793/79, Series A no 98, 21 February 1986. 93 Steven Greer (2006) at 40; S. Galera, and J. Ruiloba Albarino, ‘European Regional Tradition— the Council of Europe’ in S. Galera (ed), Judicial Review, a Comparative Analysis inside the European Legal System (Strasbourg: Council of Europe Publishing, 2010) at 202. 94 See further Chap 3, sect 4.2.2, in the text around n 183 and Chap 3, sect 3.1, in the text around n 77. 89

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to the powers of the judiciary to interpret national law, no primary position is given to national legislative authorities. Rather, national courts are required to take up an active position interpreting national law. To sum up, legality incorporates domestic law and in that sense requires lower regulations to be based on parliamentary delegation of law-making powers. However, this is not an autonomous requirement and will also not be strictly applied by the ECtHR. Still, where the lex mitior principle is concerned and with regard to laws that establish a tribunal in the sense of the right to a fair trial, the ECtHR does require laws to have a democratic heritage. Laws that establish a tribunal must even emanate directly from parliament. Also, on an abstract level, the Convention requires laws to originate from popular consent. At the same time, the case law shows that courts have a central position to interpret the law. Consequently, in the case law, legality does not accord a primary position to national legislatures to interpret the law.

3.2 Democracy governed by the rule of law The ECtHR also refers to the rule of law in the case law outside the context of legality and judicial safeguards. Apart from these core elements, the rule of law thus has broader connotations in the case law. The ECtHR has related several democratic principles to the rule of law. First, the Court has noted that the press has a pre-eminent role in a state governed by the rule of law.95 Secondly, the ECtHR has stated that: [i]n a democratic society based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means.96

Here, the rule of law is connected to the freedom of speech and assembly. At the same time, the rule of law emphasizes the peaceful means used by the political organization and the requirement that political changes are pursued through legal channels. Thirdly, Article 3 of Protocol 1 is also understood as central to the rule of law. The Strasbourg Court has judged the right to vote and to stand for elections to be ‘crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law.’97 Furthermore, the Court has noted that active and passive voting rights may be restricted when individuals have conducted themselves in a manner that has threatened to undermine the rule of law or democratic foundations.98 95

Castells v Spain, 23 April 1992, at 43. Stankov and the United Macedonian Organisation Ilinden v Bulgaria, 2 October 2001, at 97. 97 Hirst v United Kingdom (GC), 6 October 2005, at 58. See also Hirst v United Kingdom, App no 74025/01, 30 March 2004, at 36 (unreported); confirmed in later judgments such as Zdanoka v Latvia (GC), 16 March 2006, at 103; Yumak and Sadak v Turkey, 30 January 2007, at 59; Georgian Labour Party v Georgia, 8 July 2008, at 101; Yumak and Sadak v Turkey (GC), 8 July 2008, at 105. 98 Hirst v United Kingdom (GC), 6 October 2005, at 71; Zdanoka v Latvia (GC), 16 March 2006, at 110. 96

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Fourthly, the ECtHR has noted that the principle of secularism is in harmony with the rule of law and respect for human rights.99 In the case of Leyla Şahin v Turkey100 (‘the Leyla Şahin case’), secularism was a reason for the University of Istanbul to forbid the wearing of the headscarf in universities, by setting sanctions. In both the Welfare Party case and the Leyla Şahin case, secularism was indirectly of importance, to maintain pluralism. The ECtHR found that pluralism depends on the freedom of religion. The Court ‘emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society.’101 In sum, the ECtHR has also related several Convention articles that are central to democracy to the rule of law: freedom of expression, freedom of assembly, and active and passive voting rights. Moreover, the relation between the rule of law and secularism should perhaps be understood as an expression of a link between pluralism and the rule of law. How must we understand the case law in which democratic principles are described as essential to the rule of law? The rule of law could be understood to encompass democratic principles and rights, such as pluralism, the freedom of speech and the right to vote.102 Another possibility is to understand the references to the rule of law in relation to democratic principles as rhetorical. It must be remarked that the ECtHR has referred to the rule of law in the cases described above, but it has not interpreted the Convention rights differently based on the rule of law. No concrete results seem to flow from these references to the rule of law, in contrast to such cases as the Golder case concerning the right of access to court. This implies that the references are mostly rhetorical. In addition, the ECtHR uses the phrase ‘a democratic society governed by the rule of law’ in its case law.103 Such a phrase appears to indicate that democracy and the rule of law are mutually dependent, and that democracy must remain within the boundaries of the rule of law. One meaning that this phrase could have is that the rule of law encompasses human rights protection, because it is human rights that set real limitations on the ability of the democratic majority to change the laws. Another possibility is to understand this phrase as a reference to the national legal order, whereby democracy is generally understood as limited by the rule of law. It is not a coincidence that the phrase matches phrases used in national law, such as the German demokratischer Rechtsstaat. Moreover, it is likely that the reference to the ‘democratic society based on the rule of law’ must be understood as a reference to the domestic legal system, where the rule of law and democracy are difficult to separate. 99 Leyla Şahin v Turkey (GC), 10 November 2005, at 114; Refah Partisi (the Welfare Party) and ors v Turkey (GC), App no 41340/98, ECHR 2003-II, 13 February 2003, at 93. 100 Leyla Şahin v Turkey (GC), App no 44774/98, ECHR 2005-XI, 10 November 2005. 101 Refah Partisi (the Welfare Party) and ors v Turkey (GC), 13 February 2003, at 90–1. 102 Jacques Chevallier, L’État de droit, 4th edn (Paris : Montchrestien, 2003) at 107. 103 Hirst v United Kingdom (GC), 6 October 2005, at 58; Zdanoka v Latvia (GC), 16 March 2006, at 103; Yumak and Sadak v Turkey (GC), 8 July 2008, at 105.

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The rule of law in the case law can also refer to the European consensus on constitutional values; a consensus that is reflected in the Convention. An example is where the ECtHR has described the rule of law as one of the fundamental principles of a democratic society, which is inherent in all the articles of the Convention.104 In addition, in the Welfare Party case, the ECtHR stated that ‘[t]he European Convention on Human Rights must be understood and interpreted as a whole. Human rights form an integrated system for the protection of human dignity; in that connection, democracy and the rule of law have a key role to play.’105 The Convention safeguards the common European heritage of political traditions, ideals, freedom, and the rule of law.106

4 Conclusion Both the rule of law and democracy can be seen to have a core meaning in the context of the Convention. The core values of democracy are the plurality of ideas, the freedom of speech, tolerance, broad-mindedness, and political representation through elections. The rule of law as a concept of the Convention primarily denotes legality and the existence of judicial safeguards. This core concept of the rule of law demands that national law has sufficient quality, that national authorities do not act arbitrarily, and that there are viable judicial institutions that uphold human rights. In that sense, the rule of law and democracy have a different focus. Legality does not set an autonomous standard concerning the democratic origin of law, except in relation to specific areas of law. However, on an abstract level, legality implies that laws are ultimately based on popular consent. The core contents of democracy and legality are conceptually distinct, but closely linked. The rule of law demands that no arbitrary distinctions are made between individuals, whereas democracy is the process by which it is decided what differences are relevant. In the case law, democracy is the broader concept, because it is also described as the only political model compatible with the Convention. It is therefore a reason for allowing states to limit Convention rights and a reason for requiring the protection of Convention rights. The balance between the protection of individual rights and the democratic pursuit of the public interest is inherent in all articles of the Convention. For this reason, the rule of law can be understood as one of the central values of democracy in the context of the Convention. The rule of law can

104

Stere and ors v Romania, 23 February 2006, at 53; Broniowski v Poland (GC), 22 June 2004, at

147. 105

Refah Partisi (the Welfare Party) and ors v Turkey, 31 July 2001, at 43. ‘Considérant qu’il en résulte qu’en concluant la Convention, les États Contractants n’ont pas voulu se concéder des droits et obligations réciproques utiles à la poursuite de leurs intérêts nationaux respectifs, mais réaliser les objectifs et idéaux du Conseil de l’Europe, tels que les énonce le Statut, et instaurer un ordre public communautaire des libres démocraties d’Europe afin de sauvegarder leur patrimoine commun de traditions politiques, d’idéaux, de liberté et de prééminence du droit’ (Austria v Italy, App no 788/60, Recueil 7, 11 January 1961, at 23–74. 106

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also be seen as an element of democracy, given that democracy requires the existence of judicial safeguards. In the domestic legal order, the rule of law and democracy are difficult to separate. The fact that the ECtHR does not draw very clear boundaries between the rule of law and democracy in certain cases should be understood in the light of the Preamble of the Convention. In the Preamble it is stated that the European countries are like-minded and have a common heritage of political traditions.107 In European states the protection of human rights, democracy, and the rule of law are interwoven and are all part of the domestic constitutional system.

107 Preamble of the Convention for the Protection of Human Rights and Fundamental Freedoms. See also Theo van Boven, ‘The Preamble of the Convention on Human Rights and Fundamental Freedoms’ in L.E. Pettiti and P.H. Imbert (eds), La Convention Europeenne des Droit de l’Homme Commentaire Article par Article (Paris: Economica, 1995) at 406–11.

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7 Conclusion The rule of law is one of the most important values underlying the European Convention on Human Rights1 (‘the Convention’), and one of the reasons why the signatory governments signed the Convention, and thereby undertook the obligation to respect the Convention rights. Moreover, the core elements of the rule of law— legality and judicial safeguards—are of importance for the adequate protection of all Convention rights. Consequently, the rule of law is a constitutional principle of the Convention.2 Therefore, it is highly relevant to understand the meaning of the rule of law as a concept in the case law of the European Court of Human Rights (‘ECtHR’, ‘Strasbourg Court’, or simply ‘the Court’).3 The ECtHR refers to the rule of law in its case law in relation to a large variety of legal issues and relative to most of the Convention rights. In all such cases, the reference to the rule of law has the function of underlining the importance of the judgment and the principles developed in that judgment. The rule of law adds persuasive power to the argumentations of the ECtHR and it is a means of showing that the judgment is in line with generally accepted legal standards. When the ECtHR refers to the rule of law, it can indicate the rule of law within national legal systems but it can also point to the Convention standard of the rule of law, or to both. These different contexts in which the rule of law operates, could explain why the ECtHR refers to the rule of law in relation to such diverse subjects as the freedom of speech and voting rights, and also why the Court uses the phrase ‘a democratic society governed by the rule of law’. In domestic law, the rule of law functions as a legal ideal and cannot be seen in isolation from the constitutional theories and traditions. Neither can it be seen in isolation of democracy. In national legal systems the rule of law is closely tied to the historical and institutional setting in which the rule of law has come to development.

1 Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953. 2 Steven Greer, The European Convention on Human Rights, Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006) at 201. 3 Bogdandy writes about the importance of ‘structural elements and a corresponding core of legal doctrines’ for constitutional law. Such principles and doctrines function as a ‘framework for orientation’ and make the law more transparent and coherent. Furthermore, principles help integrate the legal order to the ‘broader public discourse’ (Armin von Bogdandy, ‘Constitutional Principles’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (Oxford/ Portland Oregon: Hart Publishing, 2006) 3–52).

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In the context of the Convention, the rule of law is a multifaceted and layered concept. Yet, it is possible to distil a core contents of the rule of law from the case law, based on the frequency and consistency of the argumentations that are linked to the rule of law and the results that are obtained when the Court has interpreted the Convention in line with the rule of law. In this research the core meaning of the rule of law has been ascertained by analysing those cases in which the rule of law has had a direct impact on the scope of the Convention rights. The influence of the rule of law on the interpretation of the Convention has been greatest in relation to the quality requirements of legality and judicial safeguards. The Strasbourg Court has broadened the scope and effectiveness of the right to a fair trial based on the rule of law. Also, the quality requirements of legality have resulted in a more effective review by the ECtHR of the legality of interferences with Convention rights. The quality requirements of legality and the existence of judicial safeguards form the core contents of the rule of law in the context of the Convention.4 First, the rule of law requires compliance with domestic law and, moreover, requires domestic law to conform to the quality requirements of legality.5 Secondly, the existence of accessible and effective judicial safeguards is central to the rule of law.6 Consequently, the procedural Convention rights codifying safeguards such as Articles 5, 6, 7, and 13 or, at least, the procedural elements of these rights, must be seen as part of the core contents of the rule of law. Judicial safeguards are concerned with both solving private disputes and with judicial control over the executive in cases of interferences with an individual’s right. The core contents of the rule of law in the case law is comparable to the theoretical account of the rule of law. Similar to the description of legality in theory, the Court also requires law to conform to different quality requirements. Even so, the emphasis in the case law lies mostly with one specific requirement, namely foreseeability. This requirement is central to legality and incorporates other elements, such as consistency, non-retroactivity, precision and the generality of the law. Foreseeability requires a balance between precision and generality, but favours precision, which is the result of the detailed laws required in present day society, in which government is very much involved. In the case law, the accessibility and effectiveness of judicial safeguards are part of the rule of law. In comparison, in theory on law, the existence of fair judicial procedures is understood as inherent in the concept of law itself. Without a remedy there is no right. Moreover, law can only be equally applied in equal cases by an independent judiciary in a fair procedure.

4 S. Trechsel, ‘Liberty and Security of Person’ in R. St. J. Macdonald, Franz Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights (Dordrecht:  Martinus Nijhoff Publishers, 1993) at 292. 5 Frédéric Sudre, Jean-Pierre Marguénaud, Joël Andriantsimbazovina, Adeline Gouttenoire, and Michel Levinet, Les grands arrêts de la Cour européenne des Droits de l’Homme (Paris:  Presses Universitaires de France, 2003) at 47–51; Johan van de Lanotte and Yves Haeck, Handboek EVRM, Dl 1, Algemene Beginselen (Antwerp/Oxford: Intersentia, 2005) at 125–34. 6 Steven Greer (2006) at 201; J.G. Merrills, The Development of International Law by the European Court of Human Rights, 2nd edn (Manchester: Manchester University Press, 1993) at 133.

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In theoretical accounts of the rule of law, the quality requirements of legality are described as part of the concept of law. In the case law, the ECtHR imposes the quality requirements of legality as a Convention standard upon domestic law. This seeminlgy indicates that these requirements are not part of the concept of law. However, the ECtHR has not derived its quality requirements from the text of the Convention as such, but from the rule of law. Thus, the Court has effectively asserted how these quality requirements form a generally applicable legal standard that is of value to all legal systems, in the same manner as the rule of law is such a standard. In other words, the quality requirements of legality are of significance to all law. A striking difference between the general theoretical conception of legality and legality as a concept of the Court’s case law is the demand of lawfulness. In theoretical accounts, the rule of law is a layered concept, and the thinnest layer is rule by law, or the notion that law must be strictly complied with. In the case law, this requirement of lawfulness is the first requirement the ECtHR looks at when reviewing legality, before addressing the quality of the law. Even so, it is not a strict requirement: national authorities are primarily responsible for interpreting national law and the ECtHR does not uphold formal criteria with respect to the institutional origin of law. At the same time, the rule of law can also be described as a layered concept in the case law. In theoretical accounts of the rule of law democracy and the protection of substantive human rights are not seen as core elements of the rule of law. This holds true for the rule of law concept in the case law too, as its core elements do not include democratic principles. Neither is the protection of substantive human rights part of the core contents of the rule of law in the case law. Still, the rule of law also has wider connotations in the case law. The concept can refer to democratic principles and has been a reason to broaden substantive Convention rights. As a consequence, the rule of law is difficult to separate from both democracy and the protection of substantive human rights. A striking resemblance between the core contents of the rule of law in the case law and the quality requirements of legality as developed in theory is that they are both formal. In the case law, legality and judicial safeguards do not determine the scope of individual privacy; do not determine what acts should be criminalized; and do not concern the substantive equality between individuals. Rather, with reference to the rule of law, the ECtHR has strengthened the procedural focus of the Convention. In cases that concern the substantive provisions of the Convention, such as the right to life and the prohibition of torture, the Court mostly refers to the rule of law when emphasizing the importance of adequate procedures, such as police investigations. For these reasons, the core contents of the rule of law in the case law does not concern the substance of national law. In the same manner as in theoretical accounts of the rule of law, the core elements of the rule of law in the case law are necessary but insufficient to ensure that laws have substantively just aims. Even though the core elements of the rule of law are formal, they have been of most relevance to the protection of individual freedom. In the case law, the quality

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requirements of legality have had most relevance in the protection of individuals against some of the most far-reaching forms of government interferences with individual freedom, namely where government has been given wide discretionary powers to interfere with the right to private life, and in the area of criminal law. Still, in the context of the Convention, the rule of law does not protect an individual’s free sphere and does not require limited government. The rule of law does not determine the scope of the substantive Convention rights, because the core contents of the rule of law only counters arbitrary interferences. Moreover, the rule of law is also relevant where positive obligations are concerned. Notwithstanding the formal nature of the core elements of the rule of law, the ECtHR does refer to the rule of law incidentally in relation to substantive values. An example is where the ECtHR referred to the rule of law when expanding the scope of Article 3 to include responsibility for refoulement in Soering v United Kingdom.7 The substantive connotations of the rule of law could be seen as a reflection of the comprehensive views on the rule of law that exist in the member states. It is also possible that the rule of law in the case law must be understood to include a requirement that the most basic human rights must be respected. This would be in line with the idea that the rule of law only thrives where people respect and accept the authority of the law, which is unlikely when basic human rights lack protection. In the case law the requirements of legality form a meaningful restraint of governmental power. As was described in Chapter  2, when legality determines the form that law should have by setting quality requirements to the law, legality forms a limit on governmental powers. The aim of the core elements of the rule of law in the case law is to protect against abuse of power and arbitrary interferences with the Convention rights by demanding that laws have sufficient quality and that judicial procedures are effective and accessible.8 By requiring states to operate through laws and procedures of sufficient quality, the rule of law protects freedom under the law. The requirements of legality are aimed at the predictability and the certainty of the law. As states must operate through clear, precise, foreseeable laws, individuals will know the consequences of their actions. In this manner, the rule of law protects individual autonomy. Moreover, in the case law, legality provides the ECtHR with an independent standard to review domestic law. Similarly, the minimum standard set to the right to a fair trial is an independent standard for review of domestic procedural law. Therefore, the review of the quality of the law is an important tool to ensure effective human rights protection because the quality requirements set an autonomous standard for domestic law. Legality does not allow states to hide behind national procedural rules and rule formalism. The independence of the review of legality is necessary; otherwise states could simply change their laws to evade their Convention obligations. 7

Soering v United Kingdom (Pl), App no 14038/88, Series A no 161, 7 July 1989. Jukka Viljanen, The European Court of Human Rights as a Developer of the General Doctrines of Human Rights Law:  A  Study of the Limitation Clauses of the European Convention on Human Rights (Tampere:  Tampere University Press, 2003) at 185–9; P. van Dijk, Fried van Hoof, Arjen van Rijn, and Leo Zwaak, Theory and Practice of the European Convention on Human Rights, 4th edn (Antwerp: Intersentia, 2006) at 336–8. 8

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A difference between legality in the case law compared to theory on legality is that the quality requirements set to national laws allow the ECtHR to achieve a balance between deference for national law and effective review. The requirements of legality are flexible enough to allow for differences in the national legal systems and uphold the primary responsibility of national authorities to interpret and apply national law. The flexibility of the legality standard thus fits the subsidiary role of the Convention protection system.9 The rule of law ensures a minimum degree of protection of Convention rights in the sense that these rights may not be arbitrarily limited. In addition, the fact that legality is derived from the rule of law gives additional openness to the legality concept. The Court can attach more emphasis to different views of the rule of law, including substantive views. At the same time, the value of the rule of law ultimately lies in the protection of all Convention rights. The formal safeguards that the rule of law offers are instrumental to achieving the substantive aims of the Convention.10 When national laws fulfil the quality requirements, and national procedures conform to the minimum standard of the right to a fair trial, the Convention rights will most likely be better protected in the national legal order. Thus legality is instrumental in ensuring respect nationally for Convention rights. Consequently, the rule of law has an important function in the context of the case law as it allows the ECtHR to balance its double role of offering subsidiary protection and achieving unity.11 The focus on adequate judicial procedures and the quality of the law fits the subsidiary role of the Convention protection system as well as it fits its supervisory role. On the one hand, the quality requirements of legality and requirements set to judicial safeguards are sufficiently flexible for the ECtHR to take into account the differences between the national legal systems. On the other hand, they allow the ECtHR to review national law in an independent manner. The fact that the rule of law, as a shared value, underlies the Convention legitimates the role of the ECtHR and the influence it exerts over the member states. The interpretation of the Convention in the light of the rule of law is based upon the common heritage of European states. This makes it more acceptable for states to make changes to their laws and legal institutions. The notion of the European public order is also an expression of recognition of the increased unity in constitutional values, such as the rule of law.12 The interpretation of the Convention in the light 9 Mark E. Villiger, ‘The Principle of Subsidiarity in the European Convention on Human Rights’ in Marcelo G. Kohen and Lucius Conrad Caflisch (eds), Promoting Justice, Human Rights and Conflict Resolution through International Law/La Promotion de la Justice, des Droits de l’Homme et du Règlement des Conflits par le Droit International:  Liber Amicorum Lucius Caflisch (Leiden:  Martinus Nijhoff Publishers, 2007) at 629. 10 Wolfgang Strasser, ‘The Relationship between Substantive Rights and Procedural Rights Guaranteed by the European Convention on Human Rights’ in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: The European Dimension (Cologne: Carl Heymanns Verlag KG, 1988) at 603. 11 Irene Hoffmann, Der Grundsatz der Subsidiarität im Rechtsschutzsystem der Europäischen Menschenrechtskonvention, Rechtliche Fundierung, Besonderheiten und Bedeutung (Frankfurt am Main: Peter Lang, 2007) at 34. 12 Bosphorus Hava Yolları Turizm Ve Ticaret Anonim Şirketi v Ireland (GC), App no 45036/98, ECHR 2005-VI, 30 June 2005, at 156.

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of the rule of law can be compared to the evolutive interpretation method, which is also based upon the existence of a common standard.13 The ECtHR has broadened the scope of the Convention, based on the rule of law and at the same time it has brought more unity in national conceptions of the rule of law.14 The Court has indicated through the rule of law argument that the widened scope of the Convention is still within the limits of the generally accepted rule of law standards. In general terms, the right of access to court, the respect for final judicial rulings, and the demand for the execution of final judicial rulings are broadly accepted as part of the rule of law. On the other hand, the Convention has also changed the legal systems of the European states and the conception of the rule of law in those states. The procedural standard of a fair trial in particular has been an important engine for change and improvement of the continental legal systems.15 The procedural guarantees of Article 6 are mostly derived from the Anglo-American legal system, and it has offered guarantees that did not exist to the same degree in the continental legal systems.16 A European consensus has emerged under the influence of the Convention on the central position of the judiciary to protect human rights. A double protection of human rights exists, through both national (constitutional) judicial review and through the individual application procedure before the ECtHR. The individual application procedure before the Court is a form of constitutional review, because the ECtHR reviews not only administrative acts, but also legislation and judicial decisions. It is possible to speak of the Convention system of human rights protection as a supra-constitutional system.17 The rule of law is of central importance to this constitutional role taken up by the ECtHR, as the rule of law enables the Court to balance its subsidiary role with it supervisory role. European states have accepted the authority of the ECtHR and at the same time the influence of the Court has increased over the years.18 To accept the authority of the ECtHR presupposes an acceptance of the rule of law requiring protection of human rights by the ECtHR. The rule of law would then entail a requirement that national laws, national judicial procedures, and executive action conform to the Convention and that states respect the Convention system as an additional safeguard to ensure that human rights are adequately protected on the national level. In other words, the rule of law would require the existence of the individual

13 Marckx v Belgium (Pl), App no 6833/74, Series A  no 31, 13 June 1979, at 41; Johan van de Lanotte and Yves Haeck (2005) at 194. 14 Armin von Bogdandy and Peter M. Huber, Handbuch Ius Publicum Europaeum (Vol 1) (Heidelberg: Müller, 2007) at 868. 15 Christoph Grabenwarter, ‘Europäisches und Nationales Verfassungsrecht’ in Jörn Ipsen (ed), Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 60 (Berlin: Walter de Gruyter, 2001) at 312. 16 Christoph Grabenwarter (2001) at 312. 17 Jacques Chevallier, L’État de droit, 4th edn (Paris: Montchrestien, 2003) at 109. 18 A notable exception is the failure of the UK to implement the Hirst rulings (Hirst v United Kingdom (GC), App no 74025/01, ECHR 2005-IX, 6 October 2005). The critique and resistance against the judgments of the ECtHR that can be witnessed in the UK are probably partly the result of the increased influence of the ECtHR.

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application procedure before the Court because it is this procedure which can ensure that national laws, executive action, and national judicial procedures conform to the European Convention. This view of the rule of law does not entail a form of ‘rule by the ECtHR’. The constitutional role exercised by the ECtHR does not bring the Court into a position of power. The Court remains dependent on national authorities to execute the judgments and national authorities retain their primary responsibility to interpret and apply national law. The rule of law even requires the subsidiarity of the Convention system. First, domestic authorities are better able to determine in what form human rights should be protected in their own legal system. Secondly, the ECtHR can only issue judgments in cases between applicants and states. The Court is not always able to take into account all relevant interests of other individuals. Neither can the Court offer structural solutions to all human rights issues on the national level. To conclude, the rule of law concept in the case law requires the ECtHR to control whether European domestic legal systems comply with the Convention, while it requires states to retain their primary responsibility to protect human rights on the domestic level. A prerequisite for the functioning of the Convention system is that member states respect the rule of law.19 This becomes apparant in those cases where the rule of law is clearly lacking on the national level. Without the presence in the state of at least a minimum standard of the rule of law, the Convention cannot be enforced. The Convention organs cannot provide an adequate answer in cases of structural human rights violations or complete absence of state control. In conflict situations, the influence of the Court appears relatively limited.20 Compliance with the Convention standard is highest in those states that already have a strong constitutional system.21 In other words, the ability of the Convention to instigate change is dependent upon the existing national structures and willingness to change.22 The rule of law concept in the context of the Convention sets an example for the development of a rule of law concept as a standard for the international legal system. Within the context of the Convention, the rule of law has a core contents on which there is regional agreement. The core elements of the rule of law are broad enough to enjoy general acceptance and to be applied in different legal systems. At the same time, the rule of law concept used by the ECtHR is not so general as to become meaningless, and it does set an independent standard. Most likely, general agreement can be found on the international plane on the relevance of the core elements of the rule of law that have been derived from the case law of the ECtHR. The quality requirements of legality and the accessibility of judicial procedures are generally seen as central to the rule of law, not only in the Court’s case law, but also in national legal systems and in theory on the rule of law.

19 Donna Gomien, ‘The Strasbourg Court—the Arbiter of Human Rights Standards in Europe’ in Christopher Kevin Boyle (ed), The Challenges of a Greater Europe, the Council of Europe and Democratic Security (Strasbourg: Council of Europe Publishing, 1996) 71–9. 20 R.A. Lawson, ‘50 Jaar EVRM in Vogelvlucht’ (2000) NJCM Bulletin 25(1) at 14–15. 21 22 Steven Greer (2006) at 133. Steven Greer (2006) at 57.

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An important aspect of the example set by the rule of law concept in the case law is how it has strengthened the constitutional role exercised by the ECtHR. The core contents of the rule of law sets an important example of how an international court can effectively review whether national law conforms to human rights requirements, and in that manner exercise a constitutional role, while at the same time maintaining its subsidiary role. Still, it must be taken into account that the rule of law in the context of the Convention is dependent upon the existing national rule of law. The Convention rule of law reinforces the national rule of law. Had national states not already built up an impressive tradition concerning the rule of law, it is questionable whether the Convention system would have been as effective as it is today. In sum, the example set by the ECtHR shows how the rule of law on the international level will have most success if it is built upon existing national rule of law traditions. The embeddedness of the Court in the national legal orders has been especially key to its success. Consequently, the further development and improvement of the rule of law on the national level is key to the further development of the rule of law on the international level. Furthermore, the international rule of law must take into account the manner in which it has effect in the national legal order. Finally, and of most importance, the true achievement of the rule of law in the context of the Convention, has been the improvement of the rule of law in the national legal order by offering additional safeguards to individuals against arbitrary interferences with their rights. The rule of law on the international level will only acquire real authority if it can follow this example.

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Index Access to court 43–44, 53, 56, 126–153, 160–172, 177, 181, 186, 199, 207, 215 Abortion 184 Administrative appeal procedure 166 Administrative courts 25, 30, 34–35, 161, 169 Administrative detention 102 Administrative law 52, 84, 131, 134–136, 147, 150 Aristocracy 64 Asylum seeker 102 Autonomy 15, 47–48, 65–66, 67–68, 107, 193, 213 Autonomous term 131–134, 151 Basic freedoms 22 Basic needs 60 Basic rights 57, 61–62 Birth certificate 183 Border guard 109 Charter of Fundamental Rights 36, 106 Child abduction 183 Citizen 27, 48, 54–55, 59, 63, 65–66, 87, 100, 119, 179 Civil rights and obligation 125, 130, 131–133, 134–137, 150–151, 186, 189 Civil servant 134–136, 159–160 Committee of Ministers 10, 12–13, 136, 178, Common law 24–26, 35–36, 84–85, 107 Communitatian 22 Community 55, 117, 118, 139, 203 Compulsory jurisdiction 4, 12 Contempt of court 164 Constitutional review 29–37, 53, 56, 61, 67, 68, 185–192, 215 Consultative Council of European Judges 8, 125–126 Council of Europe 6, 8–10, 12–13, 125, 129, 145, 168, 199 Criminal charge 130, 131–133, 150 Criminal law 39–40, 72, 93, 106, 107, 117, 119, 126, 181, 213 Cultural tradition 194 Custody 103 Customary rules of international law 88 Custom 45 Debate 14, 19–20, 39, 46, 63, 65, 194 Defamation 96, 141, 145 Delegation 29, 41, 45, 51, 63, 84, 167, 201–206 Deprivation of liberty 71–72, 83, 90, 102, 110–111, 115–116, 154

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Detention 56, 72, 81, 82, 89, 102, 103, 110–112, 154, 155, 160, 200 Development 2, 6–9 Deportation 112, 157–158, 174 Dialogue (Judicial) 28 Dignity 22–23, 29–30, 57, 60, 66, 108, 208, Disciplinary law 91, 94–95, 121 Discretionary power 4, 75, 77, 86, 89, 90, 93, 97, 158, 159, 167–168, 213 Discrimination 112–113 Economic and social rights 23, 58, 60, 62, 65, 178, 179, 181 Environment 147, 183 Equality 6, 47–48, 62, 64, 66, 68, 212 Equality before the law 5, 30, 40, 43–44, 47, 50, 56, 67, 112 Equality of arms 75, 96, 103, 125, 127, 138, 149, 150, 168 Equality of women 107–108 État de droit 10, 15–16, 32–34, 35, 68 European Commission on Human Rights 10, 11, 13, 17, 80, 105, 128, 132, 134–135, 167–168, 201 European Commission for the Efficiency of Justice 8, 126 European constitutional court 10, 190 European public order 10, 143, 173, 186, 197, 214 European Union 26, 31, 34, 36, 144, 145, 186 European Union law 15, 31, 34, 36, 81, 98–99 Evidence 82, 83, 96, 111, 125–127, 155, 175 Execution of judgments 15, 146, 157 Expropriation 118, 119–120, 148 Extradition 89, 174 Family visits 98 Federal Constitutional Court 31–32, 37, 109 Freedom 6, 22, 25, 27, 30, 47, 54, 57–58, 60, 62, 178–181, 212–213 Freedom of assembly 58, 65–66, 193–194, 196, 200, 206–207 Freedom of expression 58, 65, 84, 87, 96, 118, 126, 145, 153, 160, 174, 186, 193–197, 200–201, 206–207 Freedom of religion 104, 194–195, 207 Freedom of the press 194 Freedom rights 16 Freedom of thought 194, 200 Free sphere 57–60, 178, 192, 213

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Hierarchy of sources 30–31, 34–35, 37, 47, 61, 66, 173, 185–186, 191, 192 House of Lords 26, 49, 107 Housing laws 104 Ill-treatment 88, 127, 154, 175–176 Immunity 82, 108, 132, 138, 141–145, 159–162 Impartiality 43, 126–127, 153, 158, 161, 164–171 Individual application procedure 13, 37, 187, 190, 192, 215 Indivisibility 59–60, 181 International law 1–6, 9, 11, 17, 37, 74, 81, 82, 84, 86, 88, 94, 109, 130, 144, 191, 197 International organizations 2 International legal personality 5 International community 191 International Court of Justice 4, 7 International Criminal Tribunal for the former Yugoslavia 93–94, 106 Investigation 175–176, 212 Judicial dialogue 28 Judicial activism 28 Judicial law-making 107–108 Judicial review 5, 25–26, 30, 34, 35–36, 42, 121, 133, 135–136, 144, 147, 151, 156–157, 159, 162, 169–171, 186, 189–190, 215 Jura novit curia 83, 86 Jus cogens 57 Jus in bello 88 Justice (administration of ) 127, 130, 137, 147–148, 149, 154, 156, 162, 199 Justice 6, 21, 30, 46–48, 62, 109, 117, 178, 180 Landlords 147 Law and order 20, 23, 148 Lawyer 75, 99, 154 Legal aid 181 Legal personality 5 Legislative intervention 137, 138–139, 147 Length of procedure 156 Lex mitior 106, 115, 203, 206 Liberalism 1, 22, 57, 178 Liberty 6, 22, 25, 27, 30, 47, 54, 57–58, 60, 62, 178–181, 212–213 Life sentence 95 Limited government 48, 57, 60, 178, 184, 213 Magna Carta 24 Majority rule 21, 62, 65, 193–195, Marriage 107–108, 122, Margin of appreciation 116, 118 Monarchy 64 Morality 45, 46–48, 54, 55, 91–92, 121

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Nationality 55, 146 National security 91–92 Natural justice 25, 43 Non-descrimination 112–113 Non-governmental organization 6, 161 Nulla poena 21, 31, 56, 71–72, 93, 96, 106, 107, 203 Order for possession 147 Pardon 162 Parole 159 Participation 65, 195, 196, 201, 205 Participatory democracy 64–65, 193, 195 Pension 149 Pluralism 193–197, 200, 205, 207 Political community 55 Political heritage 9-, 10, 12–14, 54, 129, 148–149, 197, 208, 209, 214 Political ideal 13–14 Political party 26, 194, 204 Political philosophy 22, 57, 62 Political system 1, 11, 20, 108, 119, 197, 206 Political tradition 10, 14, 68, 197, 208, 209 Political questions doctrine 144 Positive obligation 23, 31, 58–61, 179–184, 192, 199, 213 Positivism 41 Presumption of innocence 126–127 Pre-trial detention 154 Professionals 84, 88, 91, 115, 201–202 Progressive obligations 58 Proportionality 25, 29, 35, 52, 73, 75, 96, 105, 117–120, 137, 140–141, 160, 196 Proselytism 93 Preamble to the Convention 12, 76, 128–129, 154, 178, 197, 209 Prééminence du droit 15 Prévues par la loi 74 Principe de légalité 15, 32 Prisoner 93, 128, 159 Procedural rights 56–57, 68, 174–175, 180–181, 191 Prohibition of discrimination 112–113 Prohibition of torture 56, 127, 174, 175, 191, 196, 212 Protection of property 8, 118, 119–120, 148, 178 Psychiatric patient 98 Rape 107–108, 122 Reasonable time 125–127 Rechtsstaat 10, 15–16, 29–31, 35, 68, 207 Refugee 157 Repetitive cases 15 Representation 195, 208 Res judicata 118 Restitution of property 120 Retrospective legislation 137–140, 149–150, 163, 171

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Index Right not to be punished without a previously enacted law 21, 31, 56, 71–72, 93, 96, 106, 107, 203 Right of access to court 43–44, 53, 56, 126–153, 160–172, 177, 181, 186, 199, 207, 215 Right of assembly 58, 65–66, 193–194, 196, 200, 206–207 Rights of defence 75, 126–127 Right to a fair trial 26, 34, 56, 57, 102, 125–128, 138, 146–153, 164–171, 174–175, 177, 186, 196, 199, 211, 213–215 Right to an effective remedy 56, 102, 124, 155–159, 170–171, 176–178, 186 Right to family life 98, 151, 174, 182–183 Right to free elections 194–195, 197, 205, 206 Right to life 22, 56, 58, 109, 175, 196–197, 212 Rights to liberty 22, 56, 58, 71–72, 82–83, 90, 102, 110–111, 115, 124, 131, 154–155, 159, 174, 176, 196, 199, Right to private life 98–100, 101, 115, 174, 180–181, 183–184, 191, 213 Right to property 8, 118, 119–120, 148, 178 Roma 157 Rule by law 21–22, 38, 44, 122, 212 Rules of evidence 125–127, 175 Safety files 99 Sanctions Committee 2–3 Secularism 204, 207 Security Council 2–3, 5, 191 Self-rule 23, 63, 64–65 Semi-autonomous term 79, 122

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Sexual harassment 144 Sharia 204–205 Sovereign power 3 Sovereignty of parliament 26–27, 35–36, 63, 68 Social stability 9, 11 Sources of law 30, 34–35, 37, 85, 186 Statutory limitation period 106, 115 Subsidiarity 13, 80, 95, 116, 123, 156, 159, 161, 169, 177, 198, 200, 204, 214–217 Succession 108 Supervision mechanism 15 Supremacy of ECtHR judgments 190 Surveillance 99–101, 104, 115, 122, 180, 198 Terrorism 2, 7, 23, 98, 155 Torture 56, 127, 142, 174–175, 191, 196, 212 Transsexual 183 Transition 108–110, 115, 119 Traveaux préparatoires 12 Treaty 7, 12, 31, 143, 187, 197 Ultra vires 25, 44, 52, 76, 79, 122 United Nations 2, 3, 5, 7, 191 Universal Declaration 54, 56 Unlawful dismissal 144 Unwritten law 74, 84 Volonté générale 32, 35 Welfare state 40, 52, 59 Workload 15 World Bank 8

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