February 24, 2015
This guest post was written by Paul Harvey, a UK lawyer in the Registry of the European Court of Human Rights. This article is an edited version of a paper given at the European University Institute, Florence on 28 January 2015. The views expressed are personal. Comments are welcome at paulgharvey[at]gmail.com.
What constitutes an effective third party intervention before the European Court of Human Rights? Before answering that, it is necessary to make three preliminary points on what distinguishes the practice of the Strasbourg Court on third party interventions from other courts.
First, the Court has always had a comparatively liberal policy as regards granting leave to third party interveners. Second, since the third party interventions of Amnesty International and the German Government in Soering v. the United Kingdom in 1989, there have been well over a hundred significant interventions in Court’s cases. The Court has generally been well served by these interventions, though for reasons I shall come to, in some cases it has been less well served in recent years. Third, a survey of those interventions shows a striking range in both the types of interveners and the types of cases in which they have intervened. There have been broadly six types.
1. States exercising the right in Article 36(1) of the Convention to intervene in cases brought by one of their nationals against another Contracting State
This is something of an archaism, based on the traditional right of diplomatic protection. Perhaps for this reason States rarely avail themselves of the right: there have been less than a dozen such interventions in the Court’s history. Even more rarely has this type of intervention had any significant impact on the proceedings, though one notable exception is Germany’s intervention in Soering above.
2. Interventions by States when they have sought leave (rather than exercised the right) to do so
This commonly occurs when States consider their legal systems will be affected by the outcome of a case. These have included high profile interventions such as the interventions of the UK Government in Saadi v Italy (expulsion in terrorism cases) and ten governments in Lautsi and others v. Italy (crucifixes in Italian classrooms). Other than in high profile cases, these cases tend to involve issues of criminal procedure (for instance, the interventions of the UK, Irish and French Governments in Taxquet v. Belgium (the giving of reasons by juries) and the interventions of the UK, Irish and Maltese Governments in Kyprianou v. Cyprus (contempt of court).
A more recent trend is the practice of certain Governments to intervene when issues of public international law are at stake, where the Government quite properly intervenes to ensure that – as far as possible – the Convention is interpreted in accordance with international law (see, for instance, the UK Government’s intervention in Association SOS Attentats and de Boery v. France (immunity of foreign heads of state in criminal proceedings) and the French and Slovakian Government’s interventions in Stoll v. Switzerland (confidentiality of diplomatic communications).
3. Interventions by other international institutions
This is a growing feature of the Court’s case-law. Prominent and undoubtedly useful examples include: the European Commission’s intervention in Bosphorus v. Ireland (implementation of EU law); the OSCE’s intervention in Blecic v. Croatia (post-conflict termination of specially protected tenancies); the United Nations High Commissioner for Human Rights’ intervention in El-Masri v. “the former Yugoslav Republic of Macedonia” (extraordinary rendition); the Office of the United Nations High Commissioner for Refugees’ interventions in M.S.S. v. Belgium and Greece (on the Dublin II Regulation; its first before an international tribunal) and Hirsi Jamaa and others v. Italy (“push-back” of irregular migrants in the Mediterranean). Another recent addition is the right, provided in Article 36(3) of the Convention, for the Council of Europe Commissioner for Human Rights to intervene in any proceedings before a Chamber or Grand Chamber. Thus far, the successive Commissioners have been rather sparing in the exercise of this right (see MSS above and Centre for Legal Resources on behalf of Valentin Campeanu v. Romania) and it is not yet possible to discern what criteria the Commissioners have applied in deciding when to intervene.
4. Interventions by national human rights institutions
This is a growing and also entirely positive development. Interventions so far include those by the Equality and Human Rights Commission for England and Wales in Al-Saadoon and Mufdhi v. the United Kingdom (transfer of detainees to Iraqi custody) and Eweida and others v. the United Kingdom (manifestation of religion in employment), the then Irish Human Rights Commission in O’Keeffe v. Ireland (protection against sexual abuse by a teacher) and the European Group of Human Rights Institutions in Gauer and others v. France (sterilisation without consent); D.D. v. Lithuania (involuntary admission to a psychiatric institution and unfairness of guardianship proceedings).
5. Interventions by NGOS
NGOs with a broader interest in the protection of human rights have always intervened in proceedings before the Court. Frequent, prominent and much valued interveners include, but are certainly not limited to, the AIRE Centre, Amnesty, FIDE, JUSTICE, Interights, the International Commission of Jurists. They have recently been joined by organisations who, while not being human rights organisations in the ordinary sense of the term, have nonetheless an interest in intervening in certain types of case (cases involving religious rights, freedom of expression, or sexual equality being prominent examples). Other common interveners include the various European bar associations, who commonly and quite properly intervene in cases affecting the lawyer-client relationship (see for example the intervention of various national and European bar associations in Michaud v. France (money laundering reporting requirements) and Staroszczyk v. Poland (ineffective assistance by a legal aid lawyer).
6. Interventions by litigation projects at leading universities
This, too, is a new and much welcomed addition to the range of third party interveners such that it should now be considered a category quite separate from that of traditional NGO interventions. Recent examples include the interventions of the Human Rights Centre of Ghent University in S.A.S. v. France (the French ban on the full-face veil); the Human Rights Centre and the Transitional Justice Network at the University of Essex University in, respectively, Hassan v. the United Kingdom (detention in Iraq) and Janowiec and others v. Russia (the Katyn massacre); and the National Litigation Project at Yale Law School in Babar Ahmad and others v. the United Kingdom (extradition to the United States of America).
It should be self-evident from this survey that the Court has generally been well served by third party interventions. I do, though, use the word ‘generally’ advisedly. It has been an unfortunate consequence of the increase in third party interventions in recent years that not all such interventions have been as useful or as mindful of the purpose of third party interventions as the examples set out above. The well-established rule is that a third party intervener should not comment on the facts or merits of the case. Yet too often that rule is either expressly or implicitly flouted. Too often third party interventions have passed from being welcome and valued amicus curiae to being animus curiae. However sincere and well intentioned such interventions are, they often leave the impression that the intervention has been made, not out of a desire to assist the Court, but so that the intervener can be seen to have intervened.
A similar shortcoming concerns interventions in cases which concern sensitive ethical issues under either Article 8 or Article 9 of the Convention. There can be high numbers of interveners in such cases. Some provide relevant comparative or international law and are of considerable assistance. Too many others rely almost exclusively on philosophical or religious arguments. Without in any way criticising the sincerity of the beliefs or philosophies upon which these submissions are based, the reality is that they provide little assistance.
It must be said that the majority of third party interventions are not like this, because the majority of cases before the Court are not like this. Indeed, it would seem that the key to any effective third party intervention is an appreciation of what courts do most of the time and how they go about it.
The Strasbourg Court, like most legal institutions, spends most of its time doing work only lawyers could love. The Strasbourg Court does not decide cases based on the policy preferences of individual judges, but on a prudent consideration of the legal materials before them. These are, for the most part, the Court’s own precedents, the general principles contained in those precedents, the views of the domestic courts and the international and comparative materials which are relevant to the case at hand. Almost 90% of the Court’s cases are decided on the first two (precedent and general principles); virtually all of its cases are decided on the basis of a combination of all four. The best third party interventions assist the Court in that task.
It is not a polite fiction to say that the Strasbourg Court, like most courts, values that assistance. Even an expert tribunal like the Strasbourg Court cannot know all of the law or other materials that may have a bearing on the outcome of a case. The best third party interventions supply those materials. These can include scientific information (for instance, the reports on the utility of DNA databases supplied in S. and Marper v. the United Kingdom or so called “Brandeis briefs” setting out statistics and other studies which show a particular policy or practice amounts to indirect discrimination (see, for instance, D.H. and others v. the Czech Republic, on placing Roma in special schools)).
More frequently, though no less usefully, effective interventions focus on international and comparative law. The Court will often look to the work of others international bodies in interpreting and applying the rights set out in the Convention. Comparative studies, as long as they are fully and impartially done, can provide great assistance in determining whether a Contracting State enjoys a broad or narrow margin of appreciation in a particular policy area.
Of just as great assistance, but not done nearly often enough, is providing relevant precedents from other courts around the world. Courts, one would like to think, are the same everywhere; nothing could be of greater assistance to a supranational court than being provided with those precedents. Perhaps because of their long traditions in protecting human rights and, more prosaically, because they are given in English, the precedents of common law courts have dominated the Court’s reliance on comparative law. But other courts now deserve to come to the fore. Third party interveners are well placed to supply the Court with such materials.
The impact of third party interventions
It is an inevitable feature of appellate litigation that the parties cannot always know how effective their advocacy has been: what appeals to one judge may not appeal to another and, in appellate litigation before large panels of judges, the views of lower courts or the views of other judges hearing the case may carry just as much weight, if not more weight, as the submissions of the parties. This is as true for third parties as it is for the parties themselves.
However, this is not to say that third party interventions carry no weight with the Strasbourg Court: if this were the case, the Court would not be as liberal as it is in giving leave to third parties to intervene. It does, however, serve to underline that, once leave to intervene is given, the most effective third party interventions are those which respect the Court’s request not to comment on the merits of a case, those which do not seek to advance their own interests and, above all, those which, in good faith, seek to provide real assistance to the Court in its adjudicative task.