The Strasbourg Observers are delighted to post this tribute to Judge Tulkens by Professors Sébastien Van Drooghenbroeck (Facultés Universitaires Saint-Louis) and Frédéric Krenc (Facultés Universitaires Saint-Louis)
In a Grand Chamber judgment of 15 March, 2012 (Austin vs UK) the European Court of Human Rights held, by a majority, that containment within a police cordon during a violent demonstration – so-called “kettling” – does not amount to “deprivation of liberty” in the sense of Article 5 of the European Convention of Human Rights.
Three dissenting judges, led by Françoise Tulkens, summed up the reasoning of the majority as follows: “If it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty.” The minority three further observe that “this is a new proposition which is eminently questionable and objectionable.” There follows a lengthy argumentation, listing a series of precedents to refute said proposition, not only specifically as regards the definition of “deprivation of liberty”, but also, more generally, in relation to the conflict between the respect for individual liberty and the obligation to protect competing rights.
The majority does not mention these precedents. The judgment appeared to consider that the evolutive interpretation, while not allowing for an actual reversal, at the very least made possible a flexible interpretation of jurisprudence.
Thus, the judgment reiterates that “the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today” (§ 53). More specifically, the majority declares that “advances in communications technology had made it possible to mobilise protesters rapidly and covertly on a hitherto unknown scale. Police forces in the Contracting States face new challenges, perhaps unforeseen when the Convention was drafted, and have developed new policing techniques to deal with them, including containment or “kettling”. Article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public, provided that they comply with the underlying principle of Article 5, which is to protect the individual from arbitrariness” (§ 56).
The judgment in Austin, and the dissidence it provoked, hint once again at the problematic relationship between Time and Human rights, and even more specifically, at the very delicate issue of overruling of precedent in malam partem.
No one denies that the Convention is a “living instrument”, capable of evolution in a number of dimensions. Most surely welcome the fact that this capacity has reinforced the obligations undertaken by states in the first place. And we are getting used to the occasional rocking of legal certainty as the price to pay for this ongoing, gradual progress.
Brows tend to furrow, however, in response to the suggestion that the “living” aspect of the Convention not only can entail a linear, uninterrupted progress, but may on occasion lead to instances of wasting, deterioration and entropy. Steps back, promises unmet and ambitions thwarted: these are ideas which, in the human rights discourse, “offend, shock or disturb”.
The debate surrounding the involutive interpretation of the Convention is not a new one by any means. Indeed, the broad stakes can be discerned as early as Soering (1989), Brogan and others (1988), and Fox, Campbell and Hartley (1990). But it has enjoyed something of a new lease of life in the last 10 years, which have seen case reversals in malam partem gaining favour. These reversals have, sometimes citing the necessity of adapting Convention law to the realities and imperatives of the day, on occasion dented safeguards of the Convention previously forged in case law.
Thus, the dissenting judges in Vilho Eskelinen (2007) lamented, or at least feared, that the new doctrine outlined by the case might constitute a “step back” in relation to the precedent set by Pellegrin (1999), in terms of the jurisdictional protection enjoyed by civil servants, even if there was, in the end, no such “step back”.
Conversely, however, in Gorou (n.2) vs Greece  the Grand Chamber clearly overturned precedent in malam partem. The criticism levelled by Judge Casadevall is particularly explicit in relation to the question at hand: “It is clear that the Court, in its previous judgments, could have adopted a different approach to the issue – perhaps a less demanding or less formalistic one – but once it has decided to extend individuals’ rights in a particular aspect of the right to a fair hearing, it should not – unless there has been a manifest mistake – reverse its decision. Acquired rights in the cause of human rights are at least as precious as acquired rights in other branches of the law and therefore the principle of non-regression must prevail”. In his treatment of the overruling of jurisprudence, the dissenting judge invoked the “standstill” technique, largely developped in social rights case law.
What are we to make of this? It is possible here to lay out only some fragments of the debate. First, and fundamentally, it seems that conceiving of the Convention’s permeability to the passing of time as a two-way one is the best way to ensure the very legitimacy of that porosity. The “present-day conditions” which are invoked in interpreting the Convention can be good or bad. Selectively choosing to be open to fine-weather changes, but blocking off more inclement influences, would draw significant criticism. All the more so as any given weather, in this sense, may be considered beneficial for some human rights but less so for other, competing ones.
Furthermore, it appears that the notion of an imperative “non-regression” of jurisprudence – the “standstill” advocated by Judge Casadevall – is doubtless a generous idea, but not without perverse consequences when taken to its extreme. Any excessive attempt to consolidate the jurisprudential progress downstream can risk hindering the implementation of any real progress upstream, and end up simply promoting inertia.
At the same time, it behooves us to be alert to the risk that, once the principle is legitimated, an overruling in malam partem may become a standard vehicle to justify repeated capitulations by the Court in the face of attacks by the state against its earlier rulings.
Scoppola (n.3) is a case in point. As a third party, the United Kingdom tried once again to bend the Court to its will, and to induce it to abandon the ruling in Hirst (n.2) regarding the incompatibility with the Convention of the automatic suspension of detainees’ right to vote. In its judgement of May 22, 2012 the Court does not rule out the theoretical possibility of such a reversal in malam partem if “anything has occurred or changed at the European and Convention levels since the Hirst (n. 2) judgment that might lend support to the suggestion that the principles set forth in that case should be re-examined” (§§ 94-95). Nonetheless, the Grand Chamber concluded in concreto that such an overruling was not necessary inasmuch as the current trend in Europe in no way calls into question Hirst (n.2). “[A]nalysis of the relevant international and European documents (…) and comparative-law information (…) reveals the opposite trend, if anything – towards fewer restrictions on convicted prisoners’ voting rights” (§ 95).
This is where the paradox becomes apparent. Are we to conclude a contrario that, if a majority of Member States had followed the United Kingdom’s suit and chosen to go against Hirst (n. 2), holding their detainees in a state of sub-citizenship, or even exacerbating current restrictions on their voting rights, this would have been cause enough to abandon the jurisprudence?
Horresco referrens: Such a course of action could well lead the Court, under the comforting, familiar argument of adapting the “living instrument” of the Convention to “present-day conditions”, to give in to collective challenges to the jurisprudence, and to reward its worst pupils by lowering the standards they are held to.
The thorny issue of overruling in malam partem converges here with a more general problem, one that the dedicatee of these lines is particularly fond of: the dialogue between the European Court of Human Rights and national authorities, especially judicial ones. The attitude expected of participants in this dialogue is a particularly delicate balancing act. The trick is to be open to dissident points of view, or to the arguments of dissatisfied parties, and accept the attendant risk to one’s received notions – the paradigm of Al-Khawaja et Tahery vs United Kingdom – all the while guarding against the temptation to fall into a lenient attitude, driven by the desire to avoid incurring displeasure, and ready to ride roughshod over established case law so as not to make waves.
In the words of Françoise Tulkens, the dialogue between the Court on the one hand, and the States and their judges on the other, must be “not an armchair conversation but an exchange of ideas and arguments, a communication in the substantive sense of the word”.
 The term is borrowed from F. Ost, « Le temps, quatrième dimension des droits de l’homme », J.T., 1999, p. 3.
 Voy. S. Van Drooghenbroeck, La proportionnalité dans le droit de la Convention européenne des droits de l’homme. Prendre l’idée simple au sérieux, Bruxelles, Bruylant/FUSL, 2001, pp. 59 à 63 and cited references.
 European Court of Human Rights (GC), Mangouras vs Spain, 28 September 2010 ; European Court of Human Rights (GC), Guiso-Gallisay vs Italy, 22 December 2009.
 European Court of Human Rights (GC), Gorou (n.2) vs Greece, 20 March 2009.
 See Mangouras vs Spain: The Court justifies an “involutive” interpretation of Article 5, paragraph 3, supported by an “evolutive” interpretation of the right to a healthy environment (§ 87).