The European Court of Human Rights: In Service of the People?

Abstract

The European Court of Human Rights (the Court), the impressive judicial institution of the Council of Europe with potential applicants numbering more than 800 million people has, ever since its establishment over sixty years ago, operated in service of the values of the European Convention on Human Rights (the Convention): fundamental rights, democracy and rule of law. But has it also been in service of the people? The author examines several important elements that would give an answer to this question, starting with the title “Conscience of Europe”, as the Court has been called (and calls itself), and looks at this concept as understood in theory and in the separate opinions of the judges, as well as how it is understood from the perspective of individual applicants. In this connection, the chapter analyses the right to individual application—the cornerstone of the work of the Court. The topic is closely connected to the issue of how much room there is for a sense of justice and simple empathy at this highly professional court which deals with the hardest issues on so many different subjects in Europe. Also—how close is the Court to real life? This brings the readers to the examples of the interpretation of the Convention by the Court as a living instrument and European consensus. Further elements studied are the concepts of subsidiarity and margin of appreciation as tools to help the work of the Court. Additional aspects to be considered are the possibilities for third persons and NGOs to be involved in the procedure before the Court and how the Court takes into consideration what impact the human rights protection standards it sets will have as a Drittwirkung (third party effect) and on the horizontal level. One of the important tasks of the Court, along with the protection of most absolute human rights, is also to find a balance between different rights, and between individual and public interests. It is therefore interesting to see how often the Court has, for instance, referred to the public sense of justice in its judgments. Even more complicated and sensitive are issues that involve the possible impact on interpretations and application, even adaptations of the constitutions of contracting States of the Convention. We will see how the Court has succeeded in solving the potential conflicts, inter alia by means of international co-operation and dialogue. One important part of the “human face” of the Court is the right to truth and the moral justice the Court can offer to the applicants alongside compensation in the form of damages. Ultimately, it should be self-evident that the judgments of the Court must also be executed. Whether the Court can serve the people also depends upon how the division of powers is respected at national and international levels and how the Court is perceived: it is crucial that the Court does not apply and does not give an impression of double standards. Much depends upon the general human rights culture in Europe with or without economic, sanitary, terrorism related, ethical or any other possible crises. It is fascinating to observe how the relatively new competence of the Court to give advisory opinions according to Protocol 16 of the Convention to the highest national courts contributes to the Court being in service of the people and how far artificial intelligence could replace a “human court”. The chapter makes extensive use of the Court's case law to illustrate the ideas put forward. The selection is eclectic, based on the work the author did as a judge during her nine-year mandate at the Court. She concludes: “The Court could well serve people—who else?—but to do so, it must set an example and confirm common attachment to human rights values and to the rule of law in these delicate times and in all times to come.”