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1 CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

2 CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS Shifting the Convention System: Counter-Dynamics at the National and EU Level Patricia Popelier Sarah Lambrecht Koen Lemmens (eds.) Cambridge Antwerp Portland

3 Ltd Sheraton House Castle Park Cambridge CB3 0AX United Kingdom Tel.: Fax: Distribution for the UK and Ireland: NBN International Airport Business Centre, 10 Thornbury Road Plymouth, PL6 7 PP United Kingdom Tel.: Fax: orders@nbninternational.com Distribution for Europe and all other countries: Publishing nv Groenstraat Mortsel Belgium Tel.: Fax: mail@intersentia.be Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR USA Tel.: (toll free) Fax: info@isbs.com Criticism of the European Court of Human Rights. Shifting the Convention System: Counter-Dynamics at the National and EU Level Patricia Popelier, Sarah Lambrecht and Koen Lemmens 2016 The author has asserted the right under the Copyright, Designs and Patents Act 1988, to be identified as author of this work. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, without prior written permission from, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to at the address above. Cover image: Leopold Museum, Vienna Egon Schiele, Autumn Tree in Stirred Air (Winter Tree) ISBN D/2016/7849/74 NUR 828 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library.

4 CONTENTS List of Abbreviations xix PART I. INTRODUCTORY Chapter 1. Introduction: Purpose and Structure, Categorisation of States and Hypotheses Patricia Popelier, Sarah Lambrecht en Koen Lemmens Purpose of the Edited Volume Structure of the Edited Volume Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Counter-Dynamics at the Judicial Level From Strasbourg-Friendly to Strasbourg-Suspicious: A Ranking of States Decisive Factors: Seven Hypotheses Institutional Context Historical and Cultural Context Political Dimension Political Front-Office Political Back-Office Judicial Dimension Conclusion Chapter 2. Criticising the European Court of Human Rights or Misunderstanding the Dynamics of Human Rights Protection? Koen Lemmens Introduction Onto- and Praxis-Legitimacy among Legal Critics of the Court The Legal System as a Perennial Dialogue between lex and ius (European) Human Rights as Law s Confrontation with Itself v

5 4.1. Situation Situation Situation Situation Conclusion Chapter 3. European Union: The EU s Attitude to the ECHR Clara Rauchegger and Sarah Lambrecht Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level EU Politics and the Convention System Political Strategies in the European Parliament Views on EU Accession to the ECHR Reform of the Convention System Official Position of Commission and Council Counter-Dynamics at the Judicial Level The CJEU and the Convention System Formal Legal Status of the ECHR Limited Explicit References to the ECHR Tensions Rather than Deviance Impact of a Future EU Accession to the ECHR Opinion 2/13 A Backlash against the ECtHR? The Principle of Mutual Trust as a Source of Tension The CJEU s Misunderstanding of Article 53 ECHR Other Objections General Approach of Opinion 2/ Aftermath of Opinion 2/ Relationship between the Two Courts Potential Impact on National Counter-Dynamics Follow-Up by the EU Institutions Conclusion PART II. SPARSE CRITICISM Chapter 4. Austria: Endorsing the Convention System, Endorsing the Constitution Anna Gamper Criticism of the European Court of Human Rights The Convention in Austrian Constitutional Design The 1987 Rebellion vi

6 1.3. Recent Surges in Criticism? Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System of Human Rights Case Law Conflicts Dialogues and Monologues Rights Protection Conclusion Chapter 5. Belgium: Faithful, Obedient, and Just a Little Irritated Patricia Popelier Criticism of the European Court of Human Rights Respect for the Convention System is Shared at All Levels But a Growing Sense of Irritation Emerges Counter-Dynamics at the Political Level Politics and the Convention System A Disinterested Position A More Supporting Position A Highly Critical Position the Convention System Political Strategies at the National Level A Strategy of Compliance A Strategy of Efficacy A Strategy of Centralisation of Fundamental Rights Protection Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System of Human Rights Case Law Rights Protection Conclusion vii

7 Chapter 6. Czech Republic: Strasbourg Case Law Undisputed Ľubomír Majerčík Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Counter-Dynamics at the Judicial Level The Constitutional Court and the Convention System Supreme Courts and the Convention System Judicial Strategies: Limits to Following ECHR Case Law Judicial Strategies: National Dynamics in Fundamental Rights Protection Conclusion Chapter 7. Germany: The Long Way of Integrating the Strasbourg Perspective into the Protection of Fundamental Rights Katharina Pabel Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Institutional Overview Reports on Human Rights Human Rights Policy in the Future Counter-Dynamics at the Judicial Level: The Constitutional Court (Bundesverfassungsgericht) and the Convention System Introduction Stages of the Developing Implementation of the European Convention on Human Rights in the German Legal System Stage 1: Insignificance of the European Convention on Human Rights Stage 2: Looking for the Right Way of Implementation: The Görgülü Judgment of the Bundesverfassungsgericht (2004) and its Surroundings viii

8 Stage 3: Consolidation of the Relationship between the Bundesverfassungsgericht and the European Court of Human Rights after the Görgülü Judgment Two Examples Illustrating the Current Debate on the Convention System Caroline Cases: Freedom of the Press Versus the Right to Private Life Preventive Detention Cases: The Implementation of Delicate Judgments The Perception of the ECHR by the Bundesverfassungsgericht Conclusion Chapter 8. Italy: Between Constitutional Openness and Resistance Giuseppe Martinico Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System of Human Rights Case Law Rights Protection Conclusion Chapter 9. Poland: The Taming of the Shrew Krystyna Kowalik-Bańczyk Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Institutional and Legislative Reactions Cross Reactions to Particular ECtHR Judgments ix

9 3. Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System The Constitutional Tribunal and the Convention System The Supreme Court and the Convention System The Chief Administrative Court and the Convention System of Human Rights Case Law Rights Protection Conclusion Chapter 10. Sweden: European Court of Human Rights Endorsement with Some Reservations Henrik Wenander Criticism of the European Court of Human Rights The Development of Constitutional Protection of Fundamental Rights in Sweden Ratification of the ECHR Incorporation of the ECHR General Features The Development of Case Law Examples of Criticism Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System of Human Rights Case Law Rights Protection The Place of ECHR and the ECtHR Case Law in Rights Protection A Shift in the Constitutional Role of Swedish Courts? Conclusion x

10 PART III. MODERATE CRITICISM Chapter 11. France: Je t aime, moi non plus Katarzyna Blay-Grabarczyk and Christophe Maubernard Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System Inconclusive Political Arguments Different Opinions of Trans-Political Parties the Convention System Political Strategies at the National Level Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System of Human Rights Rights Protection Conclusion Chapter 12. Hungary: Gains and Losses. Changing the Relationship with the European Court of Human Rights Eszter Polgári Criticism of the European Court of Human Rights Introduction Outside Politics: General Neutrality Political Discourse: Stronger Critical Remarks Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level A Failed Attempt: Human Rights Tax Lack of Proactivity Firmer Resistance: The Red Star Cases Counter-Dynamics at the Judicial Level The Constitutional Court and the Convention System The Post-Transition System ( ) The Constitutional Reform ( ) xi

11 Relationship with the Convention and the Jurisprudence of the European Court of Human Rights Academic Positions Theory in Practice of Human Rights Case Law Criticism within the Constitutional Court Emerging Differences in Approach: Inconsistency Rights Protection Ordinary Courts and the European Court of Human Rights: An Ambivalent Relationship Conflicts in Rights Protection Conclusion Chapter 13. The Netherlands: Political Dynamics, Institutional Robustness Janneke Gerards Criticism of the European Court of Human Rights Development and Locus of the Dutch Debate on the Role of the Court Counter-Dynamics at the Political Level Politics and the Convention System Political Parties and the Convention the Convention System The Dutch Position at the Brighton Conference The Road towards Brighton The Government s Position in Brighton After Brighton: Radical Changes in the Dutch Political Situation The Dutch Position as Regards Protocols No. 15 and Political Strategies at the National Level Impact on Legislation and Policy Constitutional Impact Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System of Human Rights Case Law Rights Protection Conclusion xii

12 Chapter 14. Norway: New Constitutionalism, New Counter-Dynamics? Michael Reiertsen Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Counter-Dynamics at the Judicial Level The Norwegian Supreme Court and the Convention System of Human Rights Case Law Rights Protection Conclusion Chapter 15. Switzerland: The Substitute Constitution in Times of Popular Dissent Tilmann Altwicker Criticism of the European Court of Human Rights Criticism in the Media, Academia, Political Arena, and the Judiciary Typology of Critical Arguments Discourse Strategies for Making Critical Arguments Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Counter-Dynamics at the Judicial Level The Federal Court and the Convention System of Human Right s Case Law Rights Protection Conclusion xiii

13 Chapter 16. Turkey: The European Convention on Human Rights as a Tool for Modernisation Olgun Akbulut Criticism of the European Court of Human Rights: Why the Court is Liked and Disliked Counter-Dynamics at the Political Level Politics and the Convention System Political Strategies at the European Level: Turkey s Contribution to the Reform of the Convention System Political Strategies at the National Level Cyprus Cases Alevi Cases Counter-Dynamics at the Judicial Level National Supreme Court and the Convention The Turkish Constitutional Court and the Convention Traditional Approach of the Turkish Constitutional Court in Protecting Convention Rights New Approach of the Turkish Constitutional Court in Protecting Convention Rights Convention at Other Courts of Human Rights Case Law Rights Protection Conclusion PART IV. STRONG CRITICISM Chapter 17. The United Kingdom: From Strasbourg Surrogacy Towards a British Bill of Rights? Roger Masterman Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level From Decision-Specific to Systemic Criticism Mistruth and Routine Deployment of Political Outrage. 460 xiv

14 Political Interventionism Towards an Autonomous United Kingdom Bill of Rights? Counter-Dynamics at the Judicial Level The United Kingdom Supreme Court and the Convention System Judicial Review, the Human Rights Act and the Convention Taking into Account the Strasbourg Jurisprudence of Human Rights Case Law Rights Protection Conclusion PART V. HOSTILE CRITICISM Chapter 18. Russia: In Quest for a European Identity Aaron Matta and Armen Mazmanyan Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level An Introduction to Russia s Complexity First Concerns: Uncertainties at the Time of Accession First Tensions: Chechnya, Protocol no. 6 and Responses to Political Repressions The Wars in Chechnya Protocol no. 6: Death Penalty Democratic Concerns and Reaction to Political Repression Towards Cold War Rhetoric between Russia and the Council: Politics and the Convention System Protocol no. 14 Amending the Control System of the Convention Conflicts with Georgia and Ukraine ECHR and the Strasbourg Court in the Public Discourse and the Inter-Political Debate Counter-Dynamics at the Judicial Level An Inquiry into Russia s Boldness: In Search for a Post-Imperial Identity? Conclusions xv

15 PART VI. SYNTHESIS Chapter 19. Assessing the Existence of Criticism of the European Court of Human Rights Sarah Lambrecht Introduction: Status of the ECHR Criticism of the European Court of Human Rights Nature of the Criticism Recent Surge of Criticism? Counter-Dynamics at the Political Level Politics and the Convention System Political Debate on the Convention System Euro-Scepticism and the Convention System the Convention System Diverging Strategies on Tackling the Influx of Cases Protocol No. 15: Ambiguity as Compromise Protocol No. 16: Between Hesitation and Enthousiasm Exit Strategy Political Strategies at the National Level Strategies to Strenghten the Impact of the Convention System Strategies to Obstruct Implementation Silent Obstruction Explicit Refusal Strategies to Diminish Impact of Convention System Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System Review Mandate Interpretative Authority of the ECtHR Case Law Tension between National Supreme Courts: Strategic Use of the ECHR of Human Rights Case Law Implicit Divergence Limits of Judicial Mandate xvi

16 Problems with Judicial Transplanting: Divergence Without Intent Criticism of the European Court of Human Rights Criticism in Domestic Case Law: A Rare Strategy Criticism Outside Judgments: Varying Traditions Judicial Dialogue: Predominant Strategy for Deliberate Divergence Rights Protection Conclusion APPENDIX Annex 1. Questionnaire Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Political Strategies at the National Level Counter-Dynamics at the Judicial Level National Supreme Courts and the Convention System of Human Rights Case Law Rights Protection Conclusion Annex 2. Questionnaire EU Criticism of the European Court of Human Rights Counter-Dynamics at the Political Level Politics and the Convention System the Convention System Counter-Dynamics at the Judicial Level The Court of Justice and the Convention System xvii

17 of Human Rights Case Law Judicial Strategies: EU Dynamics in Fundamental Rights Protection Conclusion Authors Biographies xviii

18 LIST OF ABBREVIATIONS ACERWC African Committee of Experts on the Rights of the Child and Welfare of the Child ACRWC African Charter on the Rights and Welfare of the Child Additional Protocol Additional Protocol to the European Social Charter Advisory Panel Kosovo Human Rights Advisory Panel African Charter African Charter on Human and People s Rights African Commission African Commission on Human and People s Rights American Convention American Convention on Human Rights American Declaration American Declaration of the Rights and Duties of Man CAT Committee against Torture CEDAW Committee on the Elimination of Discrimination against Women CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CMW Committee on Migrant Workers CRC Committee on the Rights of the Child CRC Convention Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities CRPD Committee Committee on the Rights of Persons with Disabilities Disappearance Convention International Convention for the Protection of All Persons from Convention Enforced Disappearance Discrimination Convention International Convention on the Elimination of All Forms of Racial Discrimination ECHR European Convention on Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights ESC Economic, Social and Cultural xix

19 List of Abbreviations ETO Principles Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights European Charter European Social Charter European Social Committee European Committee of Social Rights HRC Human Rights Committee IACHR Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights IBRD International Bank for Reconstruction and Development ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice IE Independent Expert IE environment Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment IE foreign debt Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly ESC rights IE international order Independent Expert on the promotion of a democratic and equitable international order IE solidarity Independent Expert on human rights and international solidarity IFI International Financial Institution ILC International Law Commission IO International Organization Migrant Workers International Convention on the Protection of the Rights Convention Migrant Workers and Members of Their Families NSA Non-State actor OAS Organization of American States ODA Official Development Assistance OHCHR Office of the High Commissioner for Human Rights OP-CRC Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure OP-CRPD Optional Protocol to the Convention on the Rights of Persons with Disabilities xx

20 List of Abbreviations OP-ICESCR San Salvador Protocol SR SR extreme poverty SR food SR health SR indigenous SR migrants SR water Tilburg Principles TNC Torture Convention UN UNMIK UN Guiding Principles UN Norms WG business Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights Special Rapporteur SR on extreme poverty and human rights SR on the right to adequate food SR on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health SR on the rights of indigenous peoples SR on the human rights of migrants SR on the human right to safe drinking water and sanitation Tilburg Guiding Principles on World Bank, IMF and Human Rights Transnational corporation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment United Nations United Nations Interim Administration Mission in Kosovo UN Guiding Principles on Business and Human Rights Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with regard to Human Rights Working Group on the issue of human rights and transnational corporations and other business enterprises xxi