Kaja Kaźmierska, English Law and German Law LLB & M.LL.P, King’s College London/Humboldt University; EU International Relations and Diplomacy Studies, MA, College of Europe
The EU is supposed to join the ECHR, as provided by Article 6(2) TEU.[1] The agreement between the two institutions was reached in April 2013, as a result of negotiations which commenced in June 2010.[2] However, the CJEU issued its Opinion regarding the agreement on the 18th of December 2014, declaring the agreement incompatible with EU law which significantly slowed down the accession process.[3] Nevertheless, the EU’s accession to the ECHR is still expected, which would fundamentally shift the balance within the European mechanism of human rights protection. Upon joining, the EU will be granted a voice in the European Court of Human Rights (ECtHR), as there will be one EU judge in the Strasbourg Court, along with one for every Council of Europe Member State. As a result, there will be 29 judges from the EU – one from every country and the EU judge.
Since the EU is the first non-state organization to join the ECHR, it will be the first instance in the history of the ECtHR when a judge would be appointed, not on behalf of one country, but on behalf of an organisation and in this case on behalf of 28 different states.
It has been argued that the professional background of the ECtHR judges influences the way they decide upon cases and helps to foresee what standpoint they would adopt in the Grand Chamber e.g. whether they are more likely to sympathise with the states or the individuals, whether they are likely to submit a separate opinion, etc.[4] Therefore this post will consider which background would be best for the future EU judge in terms of promoting EU values and interests in the ECtHR.
From 1998-2007, 27.4% of the judges nominated to the ECtHR had an academic background before joining the Court and 15.3% worked in their national courts.[5] 13.7% of ECtHR judges worked in administration before joining the Strasbourg Court and only 6.4% of judges served in their national Constitutional Courts. Quite a significant number of 21.7% of judges, worked in more than one of the above occupations before becoming an ECtHR judge.
In an interview with an EU official it was said that the EU judge would most probably be a former judge in the Constitutional/Supreme Court of his/her country.[6] This would guarantee excellent expertise in their national law, which is necessary when working for the ECtHR: national judges are obliged to be on the Chamber/Grand Chamber on cases concerning their country of origin.
However, if the EU judge was a former member of a national Supreme/Constitutional Court, they might have a disproportionately broad knowledge of the national law in their country, which might make them base their reasoning on the national law and legal traditions of their country rather than on the EU values. This may make the voice of that country twice as audible since the country would be represented by both its national judge and the EU judge. This situation would be explicitly incompatible with the conditions of the EU accession to the ECtHR – EU accession should not alter the situation between the Member States and the ECHR. This would make the voice of one state stronger than others. [7]
Judges who used to be practitioners before joining the ECtHR are believed to be less likely to submit separate opinions.[8] Judge Hedigan, who worked in the Irish Bar for 21 years before joining the Court, claimed that separate opinions were “unlikely to influence the majority judgment” and that submitting concurring opinions was rather useless.[9] This is not a desirable attitude for a future EU judge, who may often need to submit a separate opinion to explain the EU standpoint in a more exhaustive way. As for practitioners, there is also a difference in approach between judges who were previously states’ lawyers, and judges who used to be human rights activists. The former are more likely to sympathise with the state and the latter are more likely to sympathise with the individual applicant.[10] It is difficult to say which approach would be more beneficial in an EU judge as it would depend on the circumstances of the case. Electing a former ECtHR judge to be the new EU judge carries the same risk as appointing a former Supreme/Constitutional Court judge since such a judge would be used to looking at ECHR provisions through the prism of the national law, and national bias might be an even bigger issue. On the other hand, such a judge would have spent over nine years in the ECtHR so they may be living in the ‘vacuum’, as described by Judge Rozakis, and be immune to the influences of the national jurisdiction.[11]
Allowing such a situation would, to an extent, be against the idea of the ECtHR reform, which put an end to the ECtHR judges’ renewable terms of office. This was done with the intention of preventing judges from rendering judgements in favour of their state in order to increase their chances of being reelected.[12] If the EU judge was to be elected from the former ECtHR national judges, this would give the 28 judges from EU Member States the incentive to render judgments in favour of their countries, in order for their governments to lobby for them to be elected as the future EU judges in the ECtHR. This could also affect their judgments while in office as national judges and lead to further dilution of the common EU standpoint on human rights issues and would progress fragmentation rather than harmonisation of the EU voice. For these reasons, although technically allowed, electing a former national ECtHR judge as the EU judge would not be a good solution.[13]
Legally, the future EU judge could be a former CJEU judge. Such a judge would possess an expert knowledge in the area of EU law and therefore should help to link these two legal systems in the area of human rights and decrease the number of differences in the interpretation of the Convention rights. The number of citations from other courts in ECtHR majority judgments, currently just 0.4%, might increase. This would mean that the ECtHR would be open to more comparative reasoning.[14] Also, if the ECtHR cited CJEU judgments, which are binding for the EU Member States, more frequently, then the ECtHR’s judgments and recommendations for EU Member States may gain more legitimacy. It may constitute an additional incentive for the EU Member States to comply with the ECtHR judgments if the reasoning was supported by the arguments developed by the CJEU, and it would be the first step towards harmonising the two jurisdictions in the area of human rights promotion and implementation.
However, appointing a CJEU judge to the ECtHR would be seen as a career opportunity or promotion for such a judge. This might be interpreted as the indirect recognition of the ECtHR’s supreme position towards the CJEU, which is – as made clear in the CJEU’s opinion – is incompatible with the EU law.[15]
Summing up, there are a lot of factors influencing the way the ECtHR judges approach the cases they work on and previous experience is one of them, along with country of origin, language knowledge, and nationality. As shown above, previous experience of a future EU judge should be considered carefully, so that the nominee is committed to spreading EU values and interests while ensuring high levels of human rights protection.
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[1] European Union, “Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union of 13 December 2007”, Official Journal of the European Union, C115, 9 May 2008, art. 6TEU.
[2] The Council of Europe, The Council of Europe’s Relations with the EU, retrieved 18.08.2015, http://www.coe.int/t/der/EU_en.asp.
[3] Opinion of the Court (Full Court) of 18 December 2014, Opinion 2/13, retrieved 18.08.2015, http://curia.europa.eu/juris/liste.jsf?pro=&lgrec=pl&nat=or&oqp=&dates=&lg=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&num=C-2%252F13&td=%3BALL&pcs=Oor&avg=&page=1&mat=or&jge=&for=&cid=266611.
[4] F. Bruinsma, “Judicial Identities in the European Court of Human Rights”, in: Multilevel Governance in Enforcement and Adjudication, Antwerp, Belgium, p.231; R.C.A.White, I.Boussiakou, “Separate Opinions in the ECtHR”, Human Rights Law Review, No.9, 2009,p.57.
[5] Op. cit. F.Bruinsma, Judicial Identitites, p.213.
[6] A telephone interview with an EU official, conducted in Bruges, 25.03.2015.
[7] Protocol Relating To Article 6(2) Of The Treaty On European Union On The Accession Of The Union To The European Convention On The Protection Of Human Rights And Fundamental Freedoms, Official Journal of the European Union, 17.12.2007,art.2.
[8] Op.cit.,F.Bruinsma,p.217.
[9] Judge Hedigan, quoted in: op.cit.,F.Bruinsma ,p.217.
[10] F.Bruinsma, “The Room at the Top: Separate Opinions in the Grand Chambers of the ECHR, (1998-2006)”, Ancilla Iuris, 2008:32p.38-39.
[11] Judge Rozakis, quoted in op.cit., F. Bruinsma, Judicial Identitites,p.237.
[12] E.Voeten,“The Politics of International Judicial Appointments: Evidence from the ECtHR”, International Organization 61, Fall 2007,p. 676.
[13] Op.cit, telphone interview.
[14] E.Voeten, “Borrowing and Nonborrowing among International Courts”, The Journal of Legal Studies, Vol.39, No.2, 02.06.2010.
[15] Op.cit, telphone interview.