THE PHENOMENON OF THE JUDGE'S SEPARATE OPINION EUROPEAN COURT OF HUMAN RIGHTS

Abstract

Background: The authors of the article refer to the institution of separate opinions of the judges of the European Court of Human Rights (hereinafter referred to as the European Court, the Court or the ECtHR). They emphasise that this phenomenon has not been sufficiently studied in the legal literature. However, given the leading role of the European Court, its progressive views and authority – primarily on the European continent, where it serves as an umbrella for those who have not found protection at the national level – a judge’s opinion should not merely be an appendix to the Court’s decision. Instead, it should be regarded as the driving force for the development of the doctrine, warranting academic study, consideration by practitioners at the national level, and a possible reference point for forecasting and shaping future interpretations of the provisions of the European Convention on Human Rights in ECtHR future decisions. Methods: In the article, the authors present the points of view of scientists and practitioners on the phenomenon of separate opinions, illustrating specific examples of what they consider to be the most interesting separate opinions attached to the decisions of the European Court of Human Rights. Based on substantive analysis, they formulate conclusions, emphasising the prospective doctrinal importance for world science, law-making and law-enforcement perspective for national legal systems, as well as unconditional axiological importance, because they play the role of a catalyst for creative judicial search, contribute to the support of judicial independence and personal responsibility. The special importance not only of the decisions of the European Court of Human Rights but also of individual opinions, according to the authors, stems from the fact that those key problematic issues that bring citizens before the ECtHR are a priori difficult for the entire European community. The authors analysed separate opinions, such as that of ECtHR Judge Elósegui, which was expressed in the ECtHR case Mortier v. Belgium, regarding the ratio of the provisions of Article 2 "Right to Life" ECHR and euthanasia. The authors also focused on the key conclusions made by the Portuguese ECtHR Judge Paulo Pinto de Albuquerque, who, in his nine-year tenure, independently or with colleagues, formulated more than 150 separate opinions. The authors particularly explore his opinions in two well-known cases, Bărbulescu v. Romania and Svetina v. Slovenia. Notably, in the former case, although the judge remained in the section in the minority, his separate opinion later turned into the opinion of the majority of the Grand Chamber of the ECtHR. Results and conclusions: The authors consider the phenomenon of a separate opinion of a judge of the European Court as a result of independent and deep thinking, an expression of the judge's individual legal awareness. This perspective is based on the author's immersion in the problems that were the subject of consideration by the panel of judges and found or, on the contrary, did not find their expression in the court decision. In examining separate opinions, the authors also pay attention to the specifics of their structural construction often employed by ECtHR judges. These skillfully structured opinions can serve as a valuable example for national courts, many of which are still in search of their individual legal style.