A special neighbor

The Strasbourg Observers are delighted to post this tribute to Judge Tulkens by Judge Wilhelmina Thomassen, Judge of the European Court of Human Rights 1998-2004 and Justice of the Supreme Court of the Netherlands 2004-2012.

Fourteen years ago, in 1998, the ‘old’ European Court of Human Rights and the European Commission of Human Rights were abolished to make room for one institution, the ‘new’ Court.  Till then the machinery of human rights protection which had came into force on 3 September 1953 provided for a Commission  and a Court, their members meeting in Strasbourg on a part-time basis. The Commission was conceived as a filter to prevent the Court from being swamped by frivolous petitions and the procedure of complaint from being abused to serve political ends. Furthermore, several States were of the opinion that petitions of a political nature should not be adjudicated on by the Court, but should ultimately be handled by the Committee of Ministers.

The acceptance of the individual right of petition and of the jurisdiction of the Court were optional and the proceedings before the Commission were confidential, in order to avoid undesirable publicity (sought by applicants) which would prejudice the possibility of a friendly settlement. It was anticipated by certain States that the Commission would do its utmost to ensure that friendly settlements were reached. The possibility to refer a case to the Court was open solely to the Commission and the State(s) concerned, and was expressly denied to the applicant. The Commission was therefore initially the central monitoring body which, in order to prove its worth to member States, had to keep a watchful eye on the balance between the legally desirable and the politically acceptable. However, the substantive rights protected by the European Convention for Human Rights had been extended by various additional protocols. More and more States accepted the right of individual petition.  The thinking behind the Eleventh Protocol was that the merger of the Commission and the Court would enable proceedings to be simplified and thereby accelerated, as well as making it easier to cope with the increased influx of petitions. Since its entry into force on 1 November 1998  the judges of the Court sit on a permanent basis and 800 million people have the right to apply directly to it.

In the early spring of 1998 44 judges were elected. Much preparatory work had to be done to enable the new Court to commence its judicial business on the first of November.  Numerous questions had to be decided on, such as how the fixed sections and judgment chambers should be composed and whether the sections should deal with all kind of cases or should operate on a system of specialization.  The Court, despite the pressure of time, managed to have its rules drafted before 1 November 1998 (Wilhelmina Thomassen, “Six years as a judge in the European Court of Human Rights 1998/2004, highlights and frustrations”, Netherlands Quarterly of Human Rights, 2004).

It was in that summer of preparatory works that I met Françoise. The new responsibilities and the use of new working languages felt as a great adventure to us. We often discussed together our positions in the meetings. Our exchange of thoughts and ideas was very useful, inspiring and pleasant and we have continued to have these exchanges till I left the Court in November 2004 and even beyond.

Since Françoise and I worked in different sections we were not colleagues on a daily basis. We worked together in the Grand Chamber if both of us were appointed as  members and we were together in the plenary meetings of the judges.  But we saw each other on a daily basis because  we were neighbors both in the Courts’ building and in the rue des juifs where we lived.  Together with two other judges who were friends from the beginning, Josep Casadevall from Andorra and Marc Fischbach from Luxembourg,  we had numerous inspiring discussions about the work (by the way, without forgetting to spend our time on many other pleasant activities as sports, holidays, music and dinners).

What I have appreciated greatly in Françoise’s attitude as a human rights judge is that her search for the right human rights standards never stopped at her own knowledgeable visions.  With unflagging zeal she consulted – beyond national borders – colleagues, former colleagues,  friends,  young  people involved in human rights issues, to be inspired, to have feedback and to test  her own opinions.  It is often said that  the Court needs judges who have worked in the national system because they know the practice of courts and there institutional place in society. I agree with that to a large extent. But what a human rights’ court certainly also needs are judges with a commitment to and knowledge of human rights that helps them to identify clear or hidden injustice.  This commitment is not per se the first professional focus of former State actors such as national judges. Françoise who has not been a national judge has been the ears and the voice of many people living  in deplorable situations or who are seriously discriminated against, thereby listening to people, especially younger ones,  who in their work in nowadays’ society are confronted with situations of injustice.  Françoise’s opinions in the cases of easily forgotten people like detainees and minorities whose human dignity had been overlooked have been the most essential ones because they have contributed to a more humane world.

Apart from that, I think that Françoise’s eloquent style of writing is an example for many traditional national judges, in that she has an excellent way to explain and clarify why certain decisions should or should not be taken in her view. That applies of course to her separate opinions, but also to the majority opinions of the judgments in which she has participated: the good quality of these judgments has often been helped by Françoise’s analyses and drafting.

Apart from her contribution to the Courts’ case law Françoise has been extremely vigilant in protecting the unique European human rights system as such.  The judicial system of human rights protection based on the right of individual petition, as introduced by the 11^th Protocol, has been challenged by some States and writers from the very beginning. With the argument that this right was the reason that the Court would not be able to cope with its workload. Françoise has constantly been active in discussions within and outside the Court in explaining that it had been clear from the outset of the 11^th Protocol that the increasing influx of applications, mainly coming from the eastern and middle eastern European countries, would create a serious problem and that this has to be solved without losing the individual right of petition. One of the first publications on this issue in which she involved her three friends in the Court was called “pour le droit de recours individuel” (Francose Tulkens, Marc Fischback, Josep Casadevell, and Wilhelmina Thomassen, in: La réforme de la Cour européenne des droits de l’homme, Gérard Cohen-Jonathan et Christophe Pettiti, éd. Droit et Justice, collection dirigée par Pierre Lambert, 2003).  Whatever change in the Court’s system will be and has to be introduced, the individual right of petition should not be lost because it enables the participation of the individual in the debate on minimum human rights standards and on common European moral values.  In those 14 years Françoise has participated in many seminars, round tables and meetings where she expressed her views on this core element of the European Human Rights system.  Till now her efforts to maintain the system as it was foreseen in this respect by the 11^th Protocol have been successful in the sense that the latest States’ meeting on Courts’ reforms in Brighton earlier this year has recognized the essential significance of this right.

This Christmas I received Françoise’s seasons’ greetings with the pictures of her three grandchildren on the card. It made me realize how fast time runs. It seems only yesterday that Françoise invited all the judges in the coffee corner behind the hearing room for a glass of champagne because she had become a grandmother for the first time.  This happened in the first days of the Court.  We certainly will raise a glass of champagne again this year,  in Strasbourg, to our common birthdays in September. And I will raise it especially to Françoise and her further activities in the field of human rights. And to our friendship.

Wilhelmina (Willy) Thomassen