Conventionality: istheEuropean Court of HumanRightsturningintoaconstiutionalcourt?
Bart van der SlootSenior ResearcherTilburg Institute for Law, Technology, and Society (TILT)
Overview
(1)Introduction(2) In abstracto claimsandtheConventionalityprinciple(3) IstheECtHRturningintoaconstitutionalcourt?
(1)Introduction
(1)Introduction
Principlesofrationepersonaeandrationemateriaeinthecontext ofArticle8 ECHRIn abstracto claimsarenotacceptedA-priori claims arenotacceptedHypotheticalclaims arenotacceptedActionpopulari/class actionsarenotacceptedClaimsaboutminimaldamagearenotacceptedClaimsaboutmoregeneral/indirectinterestsarenotacceptedClaimsbylegalpersons orgroupsarenotacceptedFocus onthedirectindividualinteresstatstakeinthespecificcircumstancesofthecase,whicharebalancedagainstotherinterests
(2) In abstracto claimsandtheConventionalityprinciple
In abstracto claimssilentlyaccepted:Klassand others v.Germany (1978): ‘an individual may, under certain conditions, claim to be the victim of aviolation occasionedby the mere existence of secret measures or of legislationpermitting secretmeasures, without having toallegethat such measures were infact appliedto him.’
(2) In abstracto claimsandtheConventionalityprinciple
Subsequentcases:Malone v. theUK (1981)Merschand others v.Luxembourg (1985)Hilton v.theUnitedKingdom(1988)Matthewsv.the UK (1996)WeberandSaravia v.Germany (2006): ‘‘This threat necessarily strikes at freedom ofcommunication betweenusers of the telecommunications services and thereby amounts in itselfto aninterference with the exercise of the applicants’ rights under Article 8,irrespective ofany measures actually taken against them.’’Libertyand others v. theUK (2008): ‘the mere existence of legislation which allows a system for the secretmonitoring ofcommunications entails a threat of surveillance for all those to whomthe legislationmay be applied. This threat necessarily strikes at freedom ofcommunication betweenusers of the telecommunications services and thereby amountsin itselfto an interference with the exercise of the applicants’ rights under Article 8, irrespectiveof any measures actually taken against them.’Ekimdzhievv.Bulgaria (2009)Association“21 December 1989”v.Romania (2011)P.H. and J.H. v. the UnitedKingdom (2001).
(2) In abstracto claimsandtheConventionalityprinciple
In theZakharov(2015):‘the Court accepts that an applicant can claim to be the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures, if the following conditions are satisfied. Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his or her communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. As the Court underlined inKennedy, where the domestic system does not afford an effective remedy to the person who suspects that he or she was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such circumstances the menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8.There is therefore a greater need for scrutiny by the Court and an exception to the rule, which denies individuals the right to challenge a lawinabstracto,is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify.In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures.’Zakharov, § 171.
(2) In abstracto claimsandtheConventionalityprinciple
Conventionality;Convention-compatability;Convention-ComplianceLiterature: ECtHR, Al-Dulimiand Montana Management Inc. v. Switzerland, application no. 5809/08, 21 June 2016. ECtHR, S.J. v. BELGIUM, application no. 70055/10, 19 March2015.National Procedure:ECtHR, case of Animal Defenders International v. The United Kingdom, application no. 48876/08, 22 April 2013. ECtHR, Buckland v. the United Kingdom, application no. 40060/08, 18 September 2012. Applicationsnos5821/10 and 65523/12 IlyaMikhaylovichGERASIMENKO andLuizaAleksandrovnaSALIKHOVA against Russia and YelenaAnatolyevnaDUDAL against Russia lodged on 15 January 2010 and 6 October 2012International caselaw:ECtHR, Baka v. Hungary, application no. 20261/12, 23 June 2016. ECtHR,Margusv. Croatia, application no. 4455/10, 27 May 2014.
(2) In abstracto claimsandtheConventionalityprinciple
Intheargumentsoftheclaimants/defendantstate:ECtHR, NACHOVA AND OTHERS v. BULGARIA, Applications nos. 43577/98 and 43579/98, 6 July 2005.ECtHR,présentéepar Anne DUDA contre laFrance,no37387/05, 2005AFFAIRE PY c. FRANCE,Requêteno 66289/01, 11janvier2005ECtHR, AFFAIRE KART c. TURQUIE,Requêteno 8917/05, 8juillet2008.AFFAIRE KANAGARATNAM ET AUTRES C. BELGIQUE,Requêteno 15297/09, 13décembre2011.ECtHR, MICHAUD v. FRANCE, application no. 12323/11,6December2012ECtHR, AFFAIRE VASSIS ET AUTRES c. FRANCE,Requêteno 62736/09, 27juin2013.ECtHR, AVOTIŅŠ c. LETTONIERequêteno 17502/07, 25février2014.AFFAIRE MATELLY c. FRANCE,Requêteno 10609/10, 2octobre2014.
(2) In abstracto claimsandtheConventionalityprinciple
Indissentingandconcuringopinions:ECtHR,Yildirimv. Turkey, application no. 3111/10, 18 December 2012.K.U. v. Finland, no. 2872/02, § 49, ECHR 2008.Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009.Editorial Board ofPravoyeDeloandShtekelv. Ukraine, no. 33014/05, § 64, ECHR2011.ECtHR,Shmushkovychv. Ukraine, application no. 3276/10, 14 November 2013.EctHR, AFFAIRE DELTA PEKÁRNY A.S. c. RÉPUBLIQUE TCHÈQUE, (Requêteno 97/11, 2octobre2014BĂRBULESCU v. ROMANIA JUDGMENT – (Application no. 61496/08) , 12 January 2016.ECtHR, T.P. AND A.T. v. HUNGARY, applications nos. 37871/14 and 73986/14, 4 October 2016.
(2) In abstracto claimsandtheConventionalityprinciple
UsedbytheCourt:KENNEDY v. THE UNITED KINGDOMJUDGMENTECtHR, SUSO MUSA v. MALTA, application no. 42337/12, 23 July 2013.Orchowskiv. Poland - 17885/04 Judgment 22.10.2009S.A.S. c. France [GC] - 43835/11Arrêt1.7.2014AFFAIRE DUONG c. RÉPUBLIQUE TCHÈQUE,Requêteno 21381/11, 14janvier2016.EctHR, AFFAIRE MASLÁK ET MICHÁLKOVÁ c. RÉPUBLIQUE TCHÈQUE,Requêteno 52028/13, 14janvier2016.
(2) Inabstracto claimsandtheConventionalityprinciple
‘Theparticular interest of theVallianatosand Otherscase is that the Grand Chamber performs an abstract review of the “conventionality” of a Greek law, while acting as a court of first instance1. The Grand Chamber not only reviews the Convention compliance of a law which has not been applied to the applicants, but furthermore does it without the benefit of prior scrutiny of that same legislation by the national courts. In other words, the Grand Chamber invests itself with the power to examineinabstractothe Convention compliance of laws without any prior national judicial review.’1(Theabstract review of “conventionality” is the review of the compatibility of a national law with the Convention independently of a specific case where this law has been applied (for the use of the word “conventionality”).ECtHR,Vallianatosand others v. Greece, JUDGE PINTO DE ALBUQUERQUE(partly concurring, partly dissenting opinion) Applicationsnos. 29381/09 and 32684/09, 7 November 2013.
(3) IstheECtHRturningintoaconstitutionalcourt?
Privacy is a subjective right of natural personsInMerschand others v. Luxembourg, the Courtwas willingto accept a legal person in its claim for the part of the case thatregarded themere existence of laws or policies as such. BesidesMersch, the Courtaccepted thecomplaint of a legal person in Liberty and in the case of the Associationfor EuropeanIntegration and Human Rights andEkimdzhievv.Bulgaria.The latter caseregarded the authorities’ wide discretion to gather and useinformation obtainedthrough secret surveillance. The applicants suggested that, by failingto providesufficient safeguards against abuse, by its very existence, the laws werein violationof Article 8 ECHR. The government disputed that the applicants couldbe consideredvictims (as they did not claim to be specifically harmed by the matter) andthat legal persons should not be allowed to claim a right to privacy ingeneral andin particular in this case because the legal person could not have beenharmed itself.TheCourt, however, pointed to the statutory objectives of theassociation andfound that the ‘rights in issue in the present case are those of theapplicant association, not of its members. There is therefore a sufficiently directlink betweenthe association as such and the alleged breaches of the Convention. Itfollows thatit can claim to be a victim within the meaning of Article 34 ofthe Convention.’Essentiallythe same was held inIordachiand others v.Moldova.Thismeans that legal persons who have statutes that incorporate references tothe generalprotection of privacy and other human rights may have direct access tothe courtin the future when cases regard mass surveillance activities by the state.
(3) IstheECtHRturningintoaconstitutionalcourt?
Requirementto exhaustall domesticremedies before submitting a claim before theECtHRThe European Convention on HumanRights, Article35, regarding the admissibility criteria, specifies that the Court mayonly dealwith a matter after all domestic remedies have been exhausted, accordingto thegeneral recognized rules of international law. This is connected to theprinciple thatthe Court dismisses cases in which the national authorities haveacknowledged theirmistake and have remedied their misconduct, either byproviding compensationand/or by revoking the law or policy on which the abusivepractices werebased. If the national courts would be passed over by the claimant,national stateswould be denied this chance. However, the problem withinabstractoclaims isthat, especially when linked to mass surveillance by secret services, thenational oversighton surveillance activities is often quite limited. In particular,inabstractoclaims can often not be brought forward by citizens or legal persons on thedomestic level. Moreover, the courts and tribunals often simply lack the power toannul lawsor policies and can only assess specific individual cases. That is whythe ECtHRis often willing to accept claimants which have not exhausted alldomestic remediesif the claim regards the mere existence of laws or policies as such.
(3) IstheECtHRturningintoaconstitutionalcourt?
For example, inKennedy v. the UK, the Court concluded that the applicanthad failedto raise his arguments as regarded the overall Convention-compatibilityof theRegulation of Investigatory Powers Act 2000 (RIPA) provisions beforethe InvestigatoryPowers Tribunal (IPT). However, it also stressed that where thegovernment claimednon-exhaustion it must satisfy the Court that the remedyproposed wasan effective one available in theory and in practice at the relevanttime, thatis to say, that it was accessible, was capable of providing redress in respectof theapplicant’s complaints and offered reasonable prospects of success.However, if‘the applicant had made a general complaint to the IPT, and if thatcomplaint beenupheld, the tribunal did not have the power to annul any of the RIPAprovisions orto find any interception arising under RIPA to be unlawful as a resultof theincompatibility of the provisions themselves with the Convention.[] Accordingly, the Court considers that the applicant was not required toadvance hiscomplaint regarding the general compliance of the RIPA regime forinternal communicationswith Article 8 § 2 before the IPT in order to satisfy therequirement underArticle 35 § 1 that he exhaust domestic remedies.’61TheCourtheld essentiallythe same inM.M. v. the UK.62 This means forinabstractoclaims,that theECtHR is willing to rule as court of first instance
(3) IstheECtHRturningintoaconstitutionalcourt?
The principle ofrationetemporis, whichmeans that the provisions of the Convention do not bind anational statein relation to any act or fact which took place or any situation whichceased toexist before the date of the entry into force of the Convention or theaccession ofa state to the ECHR. This means that, for example, if the right to privacy ofan individualhad been violated by a state before that state entered theConvention, thiscase will be declared inadmissible by the Court.Obviously, thisprinciple doesnot apply toinabstractoclaims, as the infringement continues to exist.The Convention, Article 35, also requires applicants to submit their applicationwithin aperiod of six months from the date on which the final decision on thenational levelwas taken. This principle is also very difficult to maintain with regard toinabstractoclaims, and the ECtHR has often adopted a flexible approach withthis respect.
(3) IstheECtHRturningintoaconstitutionalcourt?
For example, inLenevv.Bulgaria, the Court made a sharp distinctionbetween thecomplaint regarding individual harm and the part of the applicationrevolvingaround the mere existence of the law. It stressed that the applicantcomplained ‘morethan six months later, on 12 September 2007. The fact that he did nothave knowledgeof the exact content of the recording is immaterial because the lackof suchknowledge could not prevent him from formulating a complaint underArticle 8of the Convention in relation to the secret taping of his interrogation. Nor canthe Courtaccept that the criminal proceedings against the applicant constitutedan obstacleto his raising grievances in this respect. It follows that thecomplaints concerningthe secret taping of the applicant’s interrogation have beenintroduced outof time and must be rejected in accordance with Article 35 §§ 1 and 4 ofthe Convention. By contrast, the concomitant complaints concerning the mereexistence inBulgaria of laws and practices which have established a system forsecret surveillancerelate to a continuing situation—in as much as the applicant mayat anytime be placed under such surveillance without his being aware of it. Itfollows thathis complaints in that respect cannot be regarded as having beenraised outof time.’
(3) IstheECtHRturningintoaconstitutionalcourt?
PrinciplesthatareusedbytheCourtSubjectiverightIndiviudalinterestLastinstanceCasebycase basesIn abstracto claimsA-prioriclaimsHypotheticalclaimsActionpopulari/class actionsDeminimisruleBalancingofinterests
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