Strasbourg Observers

A Grand Lady Leaves the Court

September 12, 2012

The Strasbourg Observers are delighted to conclude our series of tributes to Judge Tulkens with this guest post by Professor Paul Lemmens (KU Leuven). We wish Judge Tulkens a happy birthday today and, above all, much happiness in her post-ECtHR life. Judge Tulkens, we will truly miss your voice on the Court.
We would also like to seize this opportunity to congratulate Professor Lemmens on becoming the new Belgian judge at the ECtHR. We are indeed honored to close this tribute to Judge Tulkens with some remarks by her successor and wish him much wisdom and courage.

It is a great pleasure for me to write a tribute to Françoise Tulkens.

We know each other already since a long time. I think our first encounter was at the occasion of a Jean Dabin conference on criminal justice, which she co-organised in 1995 at the Université Catholique de Louvain. Since then we have seen each other on a more or less regular basis, and each encounter was a joyful event, usually with a lot of laughter.

When I think of Françoise, I think in the first place of a warm, radiant personality. Recently I was struck by the sudden change in the atmosphere of a room filled with her colleagues. While the atmosphere was already pleasant before her entry, there was an outburst of joy from all sides as soon as she came in. One could feel the rise of temperature with her arrival. Françoise is a person you like immediately.

She is also a person who shows an immense respect for others and a real interest in their achievements and difficulties. It was only natural that she was elected by her peers to the position of Vice-President of the Court. She is a person who is trusted by her colleagues, who can bring a group together, motivate people, and work towards a common goal.

I personally am grateful to Françoise for the many occasions when she accepted to enrich an event with her presence and to share her views with participants at a conference or with students. She never tried to impose her views on the audience, but rather was open to suggestions. For Françoise it is not uncommon to admit publicly that she still has no clear view on an issue, and that she will continue to reflect on it after her presentation, taking into account the sometimes critical comments made by the audience.

Her legacy at the Court is undoubtedly immense. We know from her separate opinions what she thinks, but obviously it is when she was in the majority that she was able to put her mark on the jurisprudence of the Court. For an outsider it is not easy to point to specific developments in the case law. I think, however, that it is fair to say that Françoise was one of those who made the Court pay attention to developments in European societies and adapt its case law to any emerging consensus among the Member States of the Council of Europe.

The Christine Goodwin case is one of the leading cases in this respect (Christine Goodwin v. United Kingdom, no. 28957/95, judgment of 11 July 2002). Françoise was a relatively new member of the Court. She, like her fellow judges of the Grand Chamber, was dissatisfied with the case law as it stood, which seemed to underestimate the problems faced by transsexuals and to overestimate the difficulties for public authorities to find solutions for these problems. This time, the Court found that it was time to depart from the precedents, and that there had to be a search for “what (was) now the appropriate interpretation and application of the Convention” (§ 75). The problem was, however, that just like at the time of the relevant precedents, there was still “a lack of a common European approach” on the question of how to address the repercussions of any legal recognition of a change of sex. This did not stop the Court from doing what it considered it had to do. It found the lack of a common approach on these issues “hardly surprising”, given the wide margin of appreciation granted to the States for the resolution of the practical problems created by the legal recognition of post-operative gender status. The Court went on to hold as follows: “The Court … attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals” (§ 85). On the basis of this emerging trend, as well as of a number of other elements (including the fact that “respect for human dignity and human freedom” belonged to “the very essence of the Convention”, § 90), the Court unanimously concluded that by not giving any legal recognition to the applicant’s gender re-assignment, the respondent State had failed to comply with its positive obligation to ensure the applicant’s right to respect for her private life (§ 93).

This was a far-reaching decision. The Court presented itself as an activist Court, pushing hesitating States into the direction of a human rights-friendly trend identified by the Court. Its decision constitutes an extended application of the consensus principle of interpretation, used in order to assure “a dynamic and evolutive approach” to the Convention and to avoid that the Court would become “a bar to reform or improvement” (§ 74).

Recently, the Court has become more cautious. It seems to respond to the criticism addressed to some of the more activist parts of its case law. It stresses the States’ margin of appreciation and its own subsidiary role. In such a context, the importance of the consensus principle is played down. A striking example is the case of A, B and C v. Ireland, where the majority of the Grand Chamber held that notwithstanding a wide consensus on a the issue of abortion, a State that refuses to allow for abortions except for a few restrictively framed situations, does not violate the right to respect for private life of the women concerned (A, B and C v. Ireland, no. 25579/05, judgment of 16 December 2010). It does not come as a surprise that Françoise was among the dissenters who “strongly (disagreed)” with the finding of the majority that the consensus in this case did not narrow the margin of appreciation of the State concerned (§ 7). The dissenters considered that to disregard the existence of a European consensus was “a real and dangerous new departure in the Court’s case-law” (§ 9). While the Court may have evolved in the direction of more self-restraint, Françoise clearly stuck to her principles.

Her departure is a great loss for the Court. She stood for empathy with the victims, and at the same time for strictness in the Court’s reasoning, a combination that is not obvious. It is a great honour for me to succeed to her in Strasbourg, but I am well aware of the weight of her legacy. Françoise is irreplaceable.

Others will now enjoy her wisdom and her warm personality. At a moment when I am about to resign from the (United Nations) Human Rights Advisory Panel in Kosovo, it is great to know that the Special Representative of the Secretary-General of the United Nations, upon the proposal by the President of the European Court, has appointed Françoise to take my place. Françoise will raise the prestige of the Panel and, what is more important, will bring her energy and her wealth of Strasbourg experience to Pristina. I am looking forward to the occasions when we will be able to talk about our experiences in environments we will both know or come to know.

Best wishes to you, Françoise, and thanks for all the friendship received.

Paul Lemmens

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