Allegation-Picking and the European Court of Human Rights: A Pervasive Court Practice Hiding in Plain Sight?

By Alan Greene

It is now almost cliché to suggest that the European Court of Human Rights ‘missed an opportunity’ when handing down a judgment. Often, these laments highlight that the Court decided the case under a given Article of the Convention, and having done so, then declined to review any further allegation. This phenomenon which I term ‘allegation-picking’ is endemic in the Court’s judgments, with my provisional research identifying over 1,600 instances of allegation-picking in English language judgments alone. Despite this pervasiveness, it is only now garnering the attention of some members of the Court. In this post, I unpack allegation-picking, explain the recent partly dissenting opinions of Judge Serghides that reproach his colleagues for allegation-picking, and sketch some possible explanations for and implications of this enigmatic judicial practice.

What is Allegation-Picking?

Allegation-picking occurs when the ECtHR decides to adjudicate upon one or some of the alleged violations of the Convention and, having decided on these grounds, refuses to adjudicate upon other allegations raised. Frequently, the Court will deploy almost circular reasoning and claim that in light of its above conclusion pertaining to the specific allegation(s) it addressed, ‘it is not necessary to examine the applicant’s remaining complaints.’ This reasoning does not, however, give any indication as to why the chosen allegation was, in fact, chosen in the first place.

Recent separate opinions of Judge Serghides have flagged this issue of allegation-picking. In Adamčo v Slovakia No. 2 the applicant, a prisoner, invoked several articles of the Convention when challenging a specific form of body search (a Thorough Strip Search or TSS). The case also raised issues concerning the examination of the applicant’s documents while he was conferring with his lawyers, and a one-off incident when the applicant’s hands were not released from a restraining device in order to allow him to use the toilet. The majority of the Court found violations of Article 3 (prohibition of torture and inhuman and degrading treatment or punishment) concerning the TSS and Article 8 (privacy) regarding the inspection of the applicant’s documents. However the majority refused to adjudicate upon the question of whether the TSS also violated Article 8, and whether the specific incident where the applicants hands were not released from the restraining device violated Article 8. Related to this incident, the applicant’s claims that he had been denied the right to an effective remedy under Article 13 ECHR where also left unexamined. This failure to address the restraining device allegation is particularly striking owing to the fact that the Court found that the applicant’s allegation based on Article 3 concerning this incident was manifestly ill-founded.

In his partly dissenting opinion, Judge Serghides remarked that:

‘I would argue that since these complaints were raised by the applicant, the Court had a duty to examine them. Failure to do so means that the applicant’s rights would not be afforded any protection whatsoever by the Court in the event of a violation. Like any other Convention right that has allegedly been infringed, the rights in question must be examined and given practical and effective protection by the Court, as required by the principle of effectiveness (both as a norm of international law and a method of interpretation), the principle of indivisibility of rights, and by the right of individual application, which is the cornerstone of the Convention’ (§ 4).

He continued:

‘In my humble submission, a refusal to examine an alleged violation because it is ‘secondary’…may amount to a denial of justice. It may run counter to the jurisdiction, task and role of the Court to interpret and apply the pertinent provisions of the Convention and the Protocols thereto, as provided by Article 32 of the Convention; it may show disregard for, and an absolute lack of protection of, the Convention rights which are not examined; it may be considered arbitrary and against the rule of law; and it may undermine the legitimacy of the Court and the trust of the public that should be placed in it. Consequently, it is not compatible with the duty of the Court, as the guardian of human rights in Europe, to first select certain complaints as worthy of consideration, and after deciding on them, to be content that it has sufficiently performed its duty and therefore to opt out of considering the remainder’ (§ 5).

How Prevalent is Allegation-Picking?

In Adamčo No.2, Judge Serghides criticises the majority’s use of Valentin Câmpeanu v Romania—a case concerning the treatment of a HIV-positive intellectually disabled young man of Roma ethnicity—as a precedent to support allegation-picking:

‘Even if it could be argued that ultimately there is now an established practice of the Court, which consists in picking and choosing the complaints which it considers as ‘main’ and leaving the other complaints without any consideration at all, such practice is, in my humble submission, erroneous for the above reasons and should be abandoned’ (§7).

This is not the first time that Valentin Câmpeanu has been used in this manner. In Voykin and Others v Ukraine, it was invoked as precedent to justify the Court in refusing to adjudicate upon alleged violations of Article 5 (liberty), 8 and 13 owing to the fact that it had already found a violation of Article 3.

Valentin Câmpeanu itself is the product of the question-begging that appears to lie at the heart of allegation-picking, with the Court refusing to examine the case under Article 3 because it had already found a violation of Article 2 (right to life). Allegations relying upon Article 5, 8 and 14 (prohibition of discrimination) also went unaddressed with no clear explanation given as to why only Article 2 was chosen. Indeed, in Valentin Câmpeanu, Judges Spielmann, Bianku and Nußberger partly dissented over the majority’s failure to address the Article 3 question, taken alone or in conjunction with Article 13.  Judges Bianku and Ziemele also partly dissented over the failure to address the allegation pertaining to Article 14 taken together with Article 2.Consequently, to use Valentin Câmpeanu like the majority in Adamčo No.2 has done is to cloak what is potentially an arbitrary court practice in the formulaic guise of court precedent and past procedure; a practice criticised in the very judgment that is being invoked to justify it.

The phenomenon of allegation-picking also goes much deeper than cases which utilise Valentin Câmpeanu as precedent. As noted, my provisional research into allegation-picking has identified over 1,600 instances of allegation-picking in English language judgments alone. This does not include judgments published only in French, nor does it include admissibility decisions where allegation-picking also operates. Cases which use Valentin Câmpeanu to justify allegation-picking therefore are merely the tip of a very large ice-berg.

Legitimate Court Practice or (un)necessary evil?

There may be several reasons why the Court engages in allegation-picking. For instance, allegation-picking may act as a vehicle for judicial minimalism—that the Court is deciding contentious cases on the least controversial grounds, keeping its powder dry for a later day and leaving aspects of the Convention’s scope open to substantive disagreement amongst democratic states. In this context, allegation-picking could constitute a manifestation of the subsidiary nature of the Court’s role. This may be what is underpinning counter-terrorism cases such as Gillan and Quinton v UK and Beghal v UK. In Gillan, theCourt found that the UK’s suspicionless stop and search power contained in Sections 44-47 of the Terrorism Act 2000 violated Article 8 and then refused to rule on the Article 5 claim. Subsequently, in Beghal, the Court found that Schedule 7 of the Terrorism Act 2000 and the power to examine and detain individuals at UK ports and airports violated Article 8 ECHR. Gillan was then used as precedent for again refusing to adjudicate upon the Article 5 question.

Article 8 is frequently invoked by critics of the Court as an example of ‘rights inflation’—where a provision of the Convention has been stretched far beyond what was envisaged by the drafters. What role therefore has allegation-picking played in cases like Gillan and Beghal to make Article 8 the focus of two high-profile cases against counter-terrorism laws in a country where there is strong political hostility to the Court? In turn, what role does allegation-picking play in consolidating or undermining the Court’s legitimacy in the eyes of states and those whose rights it is tasked with protecting?

Contrastingly, rather than giving effect to a strategy of judicial minimalism, the Court could be using allegation-picking to direct its scarce resources towards confronting the most egregious allegations and leaving others unanswered. However, this only raises further questions as to what constitutes the most serious allegation. Is there a hitherto unidentified hierarchy of norms at play that is influencing judicial decision-making? Allegation-picking may also be the result of the fact that one particular allegation constituted the most straightforward basis for achieving consensus in a given case. Allegation-picking therefore could be integral to how the Court tries to manage its workload, or competing perspectives amongst the bench but this still raises further questions as to the integrity and cohesiveness of the Court’s jurisprudence.

Allegation-picking may also be the result of lex specialis—that the Court is deciding cases upon more specific rules than more general claims, or areas in which the law is less certain. In Nikolova v Bulgaria—a case concerning, inter alia, the adequacy of legal proceedings reviewing the applicant’s detention—the Court refused to rule upon the Article 13 question as ‘the facts underlying the applicant’s complaint…are the same as those examined under Article 5.4’ and thus Article 5.4 constituted the lex specialis concerning the matters raised pertaining to detention (§ 69).

In Adamčo No.2  Judge Serghides suggests that one potential defence of allegation-picking may be the Court’s duty to protect and vindicate human dignity and that ‘that human dignity levels out all human rights without the need to examine them separately.’ Rebutting this, however, he contends that: 

‘While the concept of human dignity remains the same across all provisions of the Convention, its scope varies from Article to Article. This variation arises because different rights pertain to different contexts, requiring distinct protections and, consequently, interpretations. Each right has its own complexity and specificity as well as its own purpose to serve. Thus, the form that human dignity takes under Article 3 is not the same as its form under Article 8, nor is it the same as the form it takes in relation to the procedural right guaranteed by Article 13. So it would not be correct to argue that human dignity levels out all human rights without the need to examine them separately ‘ (§6).

In this extract, Judge Serghides reveals the potential impact that allegation-picking has, not just on the procedure or resource-management of the Court, but on the very philosophy underpinning human rights and the Convention system itself—the notion of human dignity. On this point, while Article 3 was adjudicated upon in Adamčo No.2, the issue was avoided in Valentin Câmpeanu. The absolute nature of Article 3, which is rooted in human dignity, may require that any allegation of a violation of Article 3 be adjudicated upon so as to ensure conclusive lines are drawn regarding the extent of permissible state conduct. Allegation-picking may therefore be incompatible with the absolute nature of Article 3.

Ultimately, there may be several (potentially conflicting) reasons as to why the Court engages in allegation-picking, some of which are more legitimate than others. But, with the exception of lex specialis, in most instances, no trace of the aforementioned explanations can be found in the written judgment. On the contrary, when allegation-picking occurs, no reasons tend to be given at all save for the aforementioned problematic reasoning of having decided the case on the basis of another allegation.

Conclusions

Judge Serghides is not the first judge to highlight this issue of allegation-picking. Similar to Valentin Câmpeanu, partly dissenting opinions can be found in Lăcătuş v Switzerland. Here, the applicant was fined for begging and then subsequently imprisoned for non-payment of the fine. While a violation of Article 8 was found, several partly dissenting opinions chided the majority for ignoring claims based on Article 10 (freedom of expression), Article 3, and Article 10 when read in conjunction with Article 14. However, none of these opinions call out the specific phenomenon of allegation-picking across the Court’s practice as Judge Serghides does in Adamčo No.2. He subsequently followed this up with a further partly dissenting opinion in Grande Oriente D’Italia v Italy where he again flagged up the issue of allegation-picking. To this end, Judge Serghides’ opinions make a valuable contribution to the Court’s jurisprudence by highlighting the fact that this allegation-picking is not an isolated incident solely limited to the cases at hand.

Ultimately, whether it operates as a judicial avoidance doctrine, a form of workload management, or a necessary implication of the Convention system itself and the Court’s dual mandate to protect human rights while respecting state sovereignty, allegation-picking has been hiding in plain sight. The potential reasons for, and consequences of allegation-picking sketched out in this brief post demonstrates that allegation-picking demands further attention from both the Court and court-watchers alike.