UCL Law Society exclusive interview with the President of the ECHR

In the latest edition of the UCL Law Society magazine, Silk v Brief, Alex Diggens brings the word from Strasbourg in an exclusive interview with Dean Spielmann, President of the European Court of Human Rights and UCL Laws Honorary Professor.

Dean Spielmann is the President and presiding judge over the European Court of Human Rights. President Spielmann was awarded his Bachelor’s degree in Law at the Catholic University of Louvain in Belgium (1988), and did his Masters at Fitzwilliam College, Cambridge (1990). He was called to the Bar in Luxembourg in 1989, and practised there until 2004. He intermittently taught at a number of esteemed Universities in Europe while practicing.

In 2004 he was selected as the Judge representing Luxembourg at the European Court of Human Rights, becoming President in October 2012.

I must again offer my thanks to the President for taking the time to answer my questions.

As President, has your professional relationship with the other members of the court changed significantly? That is, in your role do you now attempt to find common cause among the presiding judges?

The transition from judge to president of the European Court of Human Rights inevitably means a change in some aspect of professional relations with the other members of the Court. The President is a unique point of reference for judges in relation to certain matters, such as judicial ethics. Our Resolution on this matter gives the President and advisory and reporting function.

More generally, it is to the President that judges look, individually or collectively, to support and assist them in their work, to pursue the well-being of the Court and its personnel. I look on that as a very special bond of trust, which my colleagues conferred on me when they elected me to preside over the Court. There is a famously simple explanation that the French have for their system of government: Le président préside et le gouvernement gouverne. Adapting that to the Court, it is of course true that I preside over the institution, in both judicial and administrative matters. But the governance of the Court is in the hands of its judges, sitting in Plenary formation.

In that forum, the President occupies the chair but his voice and his vote are of exactly equal weight to every other judge. There is no judicial hierarchy. And the same applies to the Court’s judicial business, of course. It falls to me to preside over Grand Chamber cases, with overall responsibility for the good conduct of each set of proceedings at each successive stage. Naturally, I endeavour to find “common cause”, as you put it, among my fellow judges so that the Grand Chamber gives its best answer to the questions raised in the case. That is also to the goal of the judge rapporteur, who has a very significant function in every case.

Personally, I consider it very important to be available to all my judicial colleagues, to listen to their ideas and concerns regarding our work. In a Court with 47 judges, that is quite an effort. But it is certainly worth it, since it fosters a cohesive spirit within a very diverse judicial corps. For this purpose, I recently launched a new initiative called the judicial policy plenary, to give us an additional, and somewhat less formal, forum for discussion. And I should add that I am not alone in bearing the responsibility for leading and representing the Court. The President has the valuable support of two Vice Presidents, and also of the three other Section Presidents. Together we compose the Court’s Bureau, a vital structure that serves the need in our large institution for ensuring continuous communication and co-ordination.

Protocol 16 is on its way, pending ratification, and with it the ability for a domestic court to seek a ‘reference’ from the European Court of Human Rights, for human rights issues. How do you see this affecting the dialogue between courts?

[Author’s note: Protocol 16 is an amendment to the European Convention, which when ratified enables a national court to request a ‘reference’ to the ECtHR on a point of law, much like the national courts currently do with EU law and the CJEU.]

I am a very firm supporter of and believer in the Court’s new advisory jurisdiction. I was delighted to see the idea taken up at the Brighton conference in 2012 and translated into Protocol 16 a short time later. It should transform judicial dialogue based on the Convention, putting it onto a formal, institutional footing in relation to the States that accept the protocol. Judicial dialogue is already a reality, which takes the form of regular contacts and exchanges between Strasbourg and the senior judiciary in many European States. But Protocol 16 represents a true quantum leap for the Convention system, and should serve the purpose of subsidiarity by aiding domestic courts in the resolution of human rights cases at domestic level.

You’ve previously said that it would be a ‘political disaster’ if Britain left the convention, amid the government’s criticism of some of the Court’s decisions. What is the role of politicians in the popular perception of the European Convention on Human Rights?

Should there be more effort to acknowledge the importance of upholding human rights, or should they stand back and err on the side of impartiality, refraining from commenting/criticising on judgments?

Let me first of all recall the Convention case-law, which recognises a very broad freedom of expression for politicians, who are the key agents in our democratic societies. It is not the role of a judge to tell them what they should be saying about human rights in general or any particular judgment of the Court. Of course, I have myself spoken in very strong terms about the great damage that would be done to the Convention system were the United Kingdom to decide to withdraw from it – such a scenario would indeed be disastrous.

I would also plead for a balanced and informed discussion about human rights in all of the State parties. It would be unrealistic to expect a perfectly consensual debate – a certain degree of controversy is inevitable in the field of human rights. And the system as such is not beyond criticism. Nor are the judgments of the Court, which can meet with negative reactions from different quarters, starting with any dissenting judges and moving on to governments, parliamentarians, legal scholars, the media, etc.. And we must not forget the applicants – most cases brought to Strasbourg are rejected as inadmissible.

So there is room for disagreement, even disappointment, but to go from that to calling the entire system into question is a step too far in my opinion. I am convinced that the majority of people, and also those they elect to represent them, are strongly attached to the principles and values of the Convention – human dignity, human freedom, a strong, open democratic system, a fair and well-functioning judicial system, respect for the rule of law, equality of treatment.

You’ve expressed concern that the UK government’s’ attitude sets a ‘bad example’ to other countries. In October last year, the President of Kenya, Uhuru Kenyatta, cited (in a speech to the Kenyan Parliament) David Cameron’s assertion of national sovereignty and the UK Conservative party opposition to the Court of Human Rights as a reason to reject the rule of the International Criminal Court.

Do you see negative attitudes to cooperation with international regimes as continuing if member states continue to undermine – in words if not in actions – the authority of your Court?

I see international justice as one of the great achievements of modern times. International courts, whether they deal with human rights or exercise criminal jurisdiction, are central to that achievement. They exist by virtue of the political will of States, and depend on the enduring support of States to carry out their vital tasks. As a lawyer, a European and an internationalist, I can only be concerned to see political discourse start to turn the other way, be it in Europe or anywhere else.

In the European Court of Human Right’s annual report, you have expressed disappointment at the European Court of Justice’s Opinion 2/13 on the compatibility with EU law of the draft agreement for EU accession to the Convention on Human Rights. What can be done to reconcile the decision with the European Union’s stated objective of ascension to the convention?

[Author’s Note: The Lisbon Treaty inserted Article 6(2) into an EU treaty, mandating that the EU shall as an institution accede to the Convention on Human Rights, being the first non-nation state to do so. The European Court of Justice held in the referred decision, in December last year, that the article (and the accession), was incompatible with the treaties of the EU.]

I was indeed very disappointed to see the EU accession process run into such legal difficulty, which is on a scale that was not anticipated. In my speech at the opening of the judicial year in January I emphasised that there must be no vacuum in human rights protection under the Convention. And I reiterated the importance of having a coherent human rights regime in Europe, as well as the value of external review by the Strasbourg Court. As for the way forward from here, I do not think it appropriate for me to comment in detail on what are both complex and sensitive issues concerning the European Union.

Is there a particular value that you think should be included in the convention as a right but is not given due regard?

[Author’s Note: The “living instrument” doctrine dictates that the Convention on Human Rights should be interpreted not as the terms were viewed at their formation, but with regard to the modern day.]

The Convention is very much a product of its time, namely the mid-20th century. While the Court has carefully ensured its continuing relevance, above all via the “living instrument” doctrine, this necessarily operates within the limits of the text. One value that I think is greatly valued by people in Europe today, but which is not to be found as such in the Convention or any of its protocols so far, is that of social solidarity. In many States, this principle is enshrined in the constitution as a
defining characteristic of the political community.

It is also of course, included in the text of the EU Charter of Fundamental Rights, and is as well an important objective of the Council of Europe. To see it written into the text that is the “constitutional instrument of European public order” would be an excellent thing.

It has been said that we are in the ‘third wave’ of human rights law. Where do you see human rights law going next?

If the question envisages expanding the catalogue of Convention rights, I think there is little prospect of this at the present stage. That is not to say that the situation is static. The meaning and content of the Convention evolve over time, which ensures that it remains relevant to present-day conditions and concerns. Also, normative activity at Strasbourg is not confined to the Convention. The Council of Europe continues to push ahead with new treaties that protect human rights, whether in a general way or for a particular group in society, such as the victims of trafficking or the victims of domestic violence.

The Data Protection Convention is in the process of modernisation. Advances such as these, and also the many non-binding instruments that issue from the Committee of Ministers and the Parliamentary Assembly, can guide the Court’s interpretation of the Convention. So I foresee a continuing enrichment of human rights law in Europe.

As for the Convention itself, I think that the next stage in the development of human rights law is summed up in the term “subsidiarity”. It has been the dominant theme all along the reform process, and is the key to strengthening and deepening the protection of fundamental rights throughout Europe. That is a future to look forward to.

Also in the Summer 2015 edition of Silk v Brief

Professor Dame Hazel Genn on access to justice, Conservative MP Dominic Raab on the government’s law reforms, lessons to be learned from the Ched Evans saga, Bentham and the X-Men, Year Abroad Agony Aunts, Law Girl and much more.

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