August 28, 2012
Françoise Tulkens arrived at Strasbourg because she wanted to make a contribution to the development of European human rights law. She had no prior judicial experience but brought to her new office fine legal skills and great personal qualities. Amongst these must be mentioned her passion, generosity, energy, sensitivity, charm, wisdom, sense of justice and unfaltering commitment to human rights. This exceptional combination enabled her to become a key player within the European Court of Human Rights. Her successive internal elections – first as Vice-President of Section, then as President of Section and finally as Vice-President of the Court – testify to the respect in which she has been held by her fellow judges.
Her election as Vice-President is the more remarkable since she is a woman (a fact which should be irrelevant but rarely is) and holds views which are far from mainstream within the Court. To put it bluntly: Françoise Tulkens has been, throughout the fourteen years of her tenure, a resolutely progressive judge within an institution which often reveals deeply, and sometimes worryingly, conservative streaks (as in Palomo Sanchez and Others v. Spain or Austin and Others v. the United Kingdom). She swam indefatigably against the predominant current, often carrying colleagues with her. This short tribute proposes to start pinpointing her tremendously positive influence in an area where reflexes of fear and hostility are not always easily transformed into an ethic of respect towards the human being who faces us; namely, the area of migrants’ rights.
Within twelve months of her being in post, Judge Tulkens had already shown where she stood in this so-deemed sensitive and unpopular area. In November 1999, she wrote a dissenting opinion jointly with the future President of the Court Jean-Paul Costa in Baghli v. France, one of the many cases about the deportation of a convicted foreign criminal. The opinion defended the idea that the position of second-generation immigrants was such that in normal circumstances their host country should treat them in the same way as it would nationals and thus refrain from deporting them after criminal conviction. While this principle never got established in European human rights law, Judge Tulkens has held fast to her initial position. In Article 8 deportation cases, the Court says that it applies a proportionality test which involves a balancing exercise between the interests of the state and those of the applicant. Judge Tulkens has consistently found in favour of the applicant. She was notably part of the Grand Chamber’s 2008 Maslov v. Austria majority of sixteen which, without overruling the 2006 Grand Chamber’s Üner v. the Netherlands verdict of non-violation, nonetheless moderated it.
In 2005, in Leyla Salin v. Turkey, the Court endorsed the prohibition of the wearing of the Islamic headscarf by University students. The case is of direct relevance to migrants for, although it was brought by a national of the defendant state, it went to the core of what it means to respect the other. Judge Tulkens found herself in a minority of one in the Grand Chamber. She provided in her dissenting opinion a sensitive and penetrating analysis of the significance of Muslim practices, gender equality, and European attitudes towards Islam. The rounded and exceptional quality of her legal judgment, informed by sociological understanding and inspired by a profound sense of humanity, shines in this opinion where every word sounds just, and every issue is carefully assessed.
But writing sole dissenting opinions, however distinguished, was never Françoise Tulkens’ goal. Although she has no problem speaking her mind, what she wanted most, it seems to me, was to influence the development of the law in the direction which appeared to her best to embody the human rights values in which she firmly believed. Because of this I doubt that it is in dissenting opinions that we must search for her most profound impact on the Strasbourg case law. Unanimous or near-unanimous decisions may be more important in this respect. I venture to make this suggestion on the basis of having spent three years researching the Strasbourg migrant case law in-depth. What have I seen? Time and time again, decisions not even translated into English from the Second Section – over which Judge Tulkens presided – which are far more progressive than the rest of the Strasbourg case law.
Let me briefly mention two examples which I have reviewed at greater length elsewhere: Muskhadzhiyeva v. Belgium about the immigration detention of four children and their mother (on which, see my article in a volume edited by Elisabeth Lambert-Abdelgawad) and Anakomba Yula v. Belgium about the refusal of judicial assistance to an irregular migrant (on which, see my forthcoming article in Human Rights Law Review). These decisions do not go as far as I personally would have wished. They nonetheless mark a significant departure from the rulings one might have expected to arise at Strasbourg – as respectively shown by Saadi v. United Kingdom and Bah v. United Kingdom. Spectacularly, both Muskhadzhiyeva and Anakomba Yula are unanimous decisions. It is clear that key to these achievements must have been the powers of persuasion of the intellectually brilliant and socially at ease Judge Tulkens, who was well placed to influence proceedings as the national judge.
This last remark brings me to the Grand Chamber case of M.S.S. v. Belgium and Greece of January 2011. It is not an exaggeration to herald M.S.S. as the most important migrant judgment which the European Court of Human Rights has decided in the last twenty years. It certainly epitomizes the very best in terms of what the Strasbourg Convention system can offer migrants. The applicant was an Afghani asylum seeker who had been returned by Belgium to deplorable – indeed, inhumane – conditions in Greece under the so-called Dublin Convention. M.S.S. overturned the previous leading case of K.R.S. v. the United Kingdom and brought the EU Dublin system under serious challenge. It extended the reach of Article 3 prohibiting inhuman and degrading treatment in significant ways which cannot be detailed here. Let me just say that I remember taking the 100 + pages of its judgment on a train journey and reading them with a great smile on my face. I kept seeing phrases potentially opening up promising jurisprudential avenues. I expect that many of these might be traceable to Judge Tulkens who, as national judge, would have been part of the drafting committee. The judgment was delivered by a Grand Chamber, lending it immediate authority. Presumably Judge Tulkens had also had a hand in the relinquishment of the case from the Chamber to the Grand Chamber. If so, the resulting judgment proves how fine a strategist she has been.
I suspect the same goes for Hirsi Jamaa and Others v. Italy, relinquished to the Grand Chamber by the Second Section. Hirsi concerned the crucial issue of the interception-at-sea and summary return to Libya of irregular migrants. In January 2012, the Grand Chamber not only found numerous violations of the Convention, but did so unanimously. In my comments on the case on this very blog, I nonetheless noted the disjunction between these multiple and apparently unequivocal verdicts of violation and the judgment’s indication as regard reparation – to the effect that Italy should seek assurances from Libya that the applicants would not suffer inhuman treatment. I surmised that the price for achieving unanimity on the principle of the violations of the Convention might well have been the concession given the state regarding reparation. In a lone opinion, Judge Albuquerque observed that the only logically acceptable reparation would have been for the applicants to be given the opportunity to return to Italy and to have their protection claim assessed there.
In Hirsi and in many other cases, Judge Tulkens has refrained from adopting the most progressive position on the question before the Court. Though her unassailable commitment to the human rights of migrants is not in doubt, as anyone who has heard her speak in workshops organized by human rights organizations will have sensed. The way I understand her restraint is that, having deployed all her skills at trying to get the Court to speak in one voice on as many fronts as possible and having achieved this to some extent, she would then have found it inappropriate to separate herself from the collegial body of the Court in order to express an individual, contrary opinion. Of course, if she could not reconcile herself with the basic position of the Court, she would not hesitate to write or to join a dissenting opinion (as in Leyla Sahin, Saadi v. the United Kingdom, N. v. the United Kingdom, amongst other examples).
I offer these speculations obviously without having had the benefit of seeing Judge Tulkens at work within the Court. But I have listened to her ‘preaching’ human rights. I also have been aware of her readiness to participate in a multitude of forums, according to a schedule which most would find impossible to follow; seen her interacting with students and with people ‘in the street’; observed her natural warmth as well as the attention she pays to every person she happens to come into contact with. Based on this varied experience, I can easily imagine how much of an authoritative and persuasive figure she would have cut at the Court. We must hope that someone of her stature and energy, as subtly formidable and as resolutely progressive as she is, will follow in her steps. Meanwhile, we all benefit from her legacy, only the surface of which a commentator like me can scratch. For all your qualities, for your interest, for your commitment and for the amazing results you have achieved, thank you, Françoise.