August 22, 2012
I warmly thank the team of Strasbourg Observers for this opportunity to highlight the remarkable contribution of Françoise Tulkens to the jurisprudence of the European Court of Human Rights (ECtHR) during the almost 15 years she served as a judge.
In an international human rights court like the ECtHR, there seems to be two sorts of judges. Some envision their role somewhat like diplomats. They believe that an international court should act with restrain and attach particular weight to national sovereignty and state’s margin of appreciation. They are fearful that a too incisive jurisprudence might compromise the acceptance of the Court’s authority by states. Accordingly, they will be reluctant to find violations in cases where important state interests are at stake. Other judges, by contrast, approach their office rather like academics. Their primary concern is to determine what is legally right and ethically just. They always seek to highlight the questions of principle that lie behind the specific facts of a case. They deem it essential that each judgment be rigorously motivated. In their view, the Court’s mission is to provide justice to individuals whose rights and freedoms have been violated but also to contribute to the clarification and development of international human rights law standards.
Françoise Tulkens stands out as one of the best examples of this second category of judges. Faced, like the other judges, with what George Letsas has termed the ‘Strasbourg’s dilemma’, she is among those who endeavour ‘to develop and uphold consistently rights-based constitutional principles, regardless of political considerations’, rather than ‘to exercise a political judgment’ seeking solutions that, although they might be in conflict with established human rights principles, may appear more expedient.
As it emerges from the numerous separate opinions she authored, alone or jointly with other judges, time and again she insisted that rights standards cannot be sacrificed however sensitive the issue at stake for the respondent state, even where the case relates to the fight against international drug trafficking (Medvedyev and others v. France, 2010), border control (Saadi v. the United Kingdom, 2008), policing operations in the context of an international summit (Giuliani and Gaggio v. Italy, 2011), states’ participation in an international organisation (Bosphorus Hava Yollari Turizm v. Ireland, 2005), social policies implying a financial cost for the state (N. v. the United Kingdom, 2008; Stummer v. Austria, 2011), or deeply held moral values (A, B and C v. Ireland, 2010). As Judge Tulkens and the other five dissenting judges tellingly wrote in their opinion in the Grand Chamber judgment of Saadi v. the United Kingdom, which dealt with detention of asylum seekers, ‘in no circumstances can the end justify the means; no person, no human being may be used as a means towards an end.’
Françoise Tulkens’ dissenting opinions also demonstrate the special attention she devoted to the protection of the most vulnerable in contemporary European societies, such as migrants and asylum seekers (Saadi v. United Kingdom; N. v. United Kingdom, 2008), prisoners (e.g. Kafkaris v. Cyprus, 2008; Stummer v. Austria, 2011; Boulois c. Luxembourg, 2012), or ethnic and religious minorities (Chapman v. United Kingdom, 2001; Francesco Sessa v. Italy, 2012). In Chapman v. the United Kingdom, for instance, she was among the dissenting judges who believed that state’s obligation to respect the Roma and Travellers’ minority traditional lifestyle could not remain merely formal: considering the persistent lack of authorised caravan sites for Roma and Travellers in the United Kingdom, they deemed it disproportionate to evict from their own land a Roma family who had stationed a caravan without planning permission, where there had not been shown to be any other lawful alternative site reasonably open to them.
Faithful to the notions that the Convention is a ‘living instrument’ and is intended to guarantee rights that are ‘practical and effective’, not ‘theoretical or illusory’, always mindful of the legal evolution taking place outside the Court, she has privileged a dynamic reading of the rights and freedoms laid out in the Convention, defending interpretations that were raising the standards of protection. Thus, in Kafkaris v. Cyprus, contrary to the majority, she defends the view that ‘a sentence of life imprisonment, with no hope of release, attains the level of severity required for Article 3 of the Convention to apply and constitutes inhuman and degrading treatment.’ In Gäfgen v. Germany, she admonishes the Court for not having established that the right to a fair trial under Article 6 requires the exclusion of any real evidence obtained by an act violating Article 3, regardless of whether the contested treatment amounts to torture or to inhuman or degrading treatment. And in Francesco Sessa v. Italy, on an issue of special importance for religious minorities, she maintains that the proportionality condition, insofar as it requires to check whether a measure interfering with religious freedom is the least restrictive means to attain a legitimate aim, may imply an obligation to provide, where possible, a reasonable accommodation that permits to reconcile the concerned objective with the practice of the religion at stake.
Another distinctive feature of her dissenting opinions is her ability to identify and address the deeper ethical or social issues underpinning some of the cases brought to the Court. Take one of her most famous dissenting opinions, that relating to the Leyla Sahin v. Turkey judgment (2005), which concerns the decision of Turkish authorities to ban women from wearing a headscarf at university, on the ground of preserving secularism and sex equality. The Court’s majority admitted that, in the Turkish context, this measure could be deemed necessary to protect the rights of others and preserve public order. Judge Tulkens was the only one to dissent. In her memorable separate opinion, she raises some of the disturbing questions the majority preferred to avoid. Noting that the Court accepts without discussion that a headscarf ban at university promotes equality between men and women, she observes:
‘I fail to see how the principle of sexual equality can justify prohibiting a woman from following a practice which, in the absence of proof to the contrary, she must be taken to have freely adopted. Equality and non-discrimination are subjective rights which must remain under the control of those who are entitled to benefit from them. “Paternalism” of this sort runs counter to the case-law of the Court, which has developed a real right to personal autonomy on the basis of Article 8’. (§ 12)
She further emphasises the paradoxical nature of this measure which excludes women from access to one of the best means of emancipation, that is university education: ‘Advocating freedom and equality for women cannot mean depriving them of the chance to decide on their future.’ (§ 19)
Judge Tulkens did not shy away from taking a critical look at certain human rights developments. As a former professor of criminal law, she was particularly sensitive to the risks involved in considering that for certain types of rights violations, appropriate and sufficient redress entails a duty to impose criminal sanctions on offenders. In Gäfgen v. Germany, together with judges Ziemele and Bianku, she expressed concern at the assessment by the Court that the penalties imposed on the police officers were too low to have a deterrent effect and therefore did not constitute appropriate redress. Noting that numerous studies, especially those of an empirical nature, have put into question the preventive effect of criminal sentences, the three dissenting judges call for caution in this regard. They further remark:
‘even – and no doubt especially – where criminal punishment serves the purpose of protecting rights and freedoms, at the risk of obscuring the fact that it is also a threat to rights and freedoms, we should not lose sight of the subsidiarity principle, which is a basic axiom of criminal law: use of the weapon of punishment is acceptable only if there are no other means of protecting the values or interests at stake.’ (§5)
No doubt the exacting, sharp and thought-provoking analyses of ECtHR’s judgments and the alternative reasoning she proposes throughout her separate opinions will continue to be discussed and reflected upon in the years to come, both within and outside the Court.
 G. Letsas, ‘Judge Rozakis’s Separate Opinions and the Strasbourg Dilemma’, The European Convention on Human Rights, a Living Instrument : Essays in Honour of Christos L. Rozakis (Bruylant: 2011).
 Joint partly dissenting opinion of Judges Rozakis, Tulkens, Kovler, Hajiyev, Spielmann and Hirvela.
 Joint dissenting opinion of Judges Pastor Ridruejo, Bonello, Tulkens, Straznicka, Lorenzen, Fischbach and Casadevall in Chapman v. The United Kingdom, 2001.
 Joint partly dissenting opinion of Judges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann and Jebens in Kafkaris v. Cyprus, 2008, § 6.
 Joint partly dissenting opinion of Judges Rozakis, Tulkens, Jebens, Ziemele, Bianku and Power in Gäfgen v. Germany, 2010.
 Joint dissenting opinion of Judges Tulkens, Popovic and Keller in Francesco Sessa v. Italy, 2012.