Dean Spielmann, President of the European Court of Human Rights since September 2012, has served as a Judge in the Court for over a decade. In a recent interview with the UCL Law Society’s Silk v. Brief, highlights of which are condensed in the blog post below, he discusses the evolving role of human rights in Europe, and explores the complicated relationship between the UK and the European Convention on Human Rights.
| As President, has your professional relationship with the other members of the court changed significantly? Do you now attempt to find common cause among the presiding judges? |
The transition from judge to president of the European Court of Human Rights inevitably means a change in some aspect of professional relations with the other members of the Court. The President is a unique point of reference for judges in relation to certain matters, such as judicial ethics, for example. More generally, it is to the President that judges look, individually or collectively, to support and assist them in their work, to pursue the well-being of the Court and its personnel. . . . In [the Plenary] forum, the President occupies the chair but his voice and his vote are of exactly equal weight to every other judge. There is no judicial hierarchy. . . . Naturally, I endeavour to find ‘common cause’, as you put it, among my fellow judges so that the Grand Chamber gives its best answer to the questions raised in the case. . .
| Protocol 16 is on its way, pending ratification, and with it the ability for a domestic court to seek a ‘reference’ from the European Court of Human Rights, for human rights issues. How do you see this affecting the dialogue between courts? |
I am a very firm supporter of the Court’s new advisory jurisdiction. . . . It should transform judicial dialogue based on the Convention, putting it onto a formal, institutional footing in relation to the States that accept the protocol. Judicial dialogue is already a reality, which takes the form of regular contacts and exchanges between Strasbourg and the senior judiciary in many European States. But Protocol 16 represents a true quantum leap for the Convention system, and should serve the purpose of subsidiarity by aiding domestic courts in the resolution of human rights cases at domestic level.
| You’ve previously said that it would be a ‘political disaster’ if Britain left the convention, amid the government’s criticism of some of the Court’s decisions. What is the role of politicians in the popular perception of the European Convention on Human Rights? |
Let me first of all recall the Convention case law, which recognises a very broad freedom of expression for politicians, who are the key agents in our democratic societies. It is not the role of a judge to tell them what they should be saying about human rights in general or any particular judgment of the Court. Of course, I have myself spoken in very strong terms about the great damage that would be done to the Convention system were the United Kingdom to decide to withdraw from it – such a scenario would indeed be disastrous. I would also plead for a balanced and informed discussion about human rights in all of the State parties. It would be unrealistic to expect a perfectly consensual debate – a certain degree of controversy is inevitable in the field of human rights. And the system as such is not beyond criticism. Nor are the judgments of the Court, which can meet with negative reactions from different quarters, starting with any dissenting judges and moving on to governments, parliamentarians, legal scholars, the media, etc. . . . There is room for disagreement, even disappointment, but to go from that to calling the entire system into question is a step too far in my opinion. I am convinced that the majority of people, and also those they elect to represent them, are strongly attached to the principles and values of the Convention – human dignity, human freedom, a strong, open democratic system, a fair and well-functioning judicial system, respect for the rule of law, equality of treatment.
| You’ve expressed concern that the UK’s government’s attitude sets a ‘bad example’ to other countries. Do you see negative attitudes to cooperation with international regimes as continuing if member states undermine – in words if not in actions – the authority of your Court? |
I see international justice as one of the great achievements of modern times. International courts, whether they deal with human rights or exercise criminal jurisdiction, are central to that achievement. They exist by virtue of the political will of States, and depend on the enduring support of States to carry out their vital tasks. As a lawyer, a European and an internationalist, I can only be concerned to see political discourse start to turn the other way, be it in Europe or anywhere else.
| You have expressed disappointment at the European Court of Justice’s Opinion 2/13 on the incompatibility with EU law of the draft agreement for EU accession to the ECHR. What can be done to reconcile this with the EU’s stated objective to accede to the convention? |
I was indeed very disappointed to see the EU accession process run into such legal difficulty, which is on a scale that was not anticipated. In my speech at the opening of the judicial year in January I emphasised that there must be no vacuum in human rights protection under the Convention. And I reiterated the importance of having a coherent human rights regime in Europe, as well as the value of external review by the Strasbourg Court. As for the way forward from here, I do not think it appropriate for me to comment in detail on what are both complex and sensitive issues concerning the European Union.
| Is there a particular value that you think should be included in the convention as a right but is not given due regard? |
. . . One value that I think is greatly valued by people in Europe today, but which is not to be found as such in the Convention or any of its protocols so far, is that of social solidarity. In many States, this principle is enshrined in the constitution as a defining characteristic of the political community. It is also of course, included in the text of the EU Charter of Fundamental Rights, and is as well an important objective of the Council of Europe. To see it written into the text that is the ‘constitutional instrument of European public order’ would be an excellent thing.
| It has been said that we are in the ‘third wave’ of human rights law. Where do you see human rights law going next? |
If the question envisages expanding the catalogue of Convention rights, I think there is little prospect of this at the present stage. That is not to say that the situation is static. The meaning and content of the Convention evolve over time, which ensures that it remains relevant to present-day conditions and concerns . . . The Council of Europe continues to push ahead with new treaties that protect human rights, whether in a general way or for a particular group in society, such as the victims of trafficking or the victims of domestic violence . . . Advances such as these, and also the many non-binding instruments that issue from the Committee of Ministers and the Parliamentary Assembly, can guide the Court’s interpretation of the Convention . . .
As for the Convention itself, I think that the next stage in the development of human rights law is summed up in the term ‘subsidiarity’. It has been the dominant theme all along the reform process, and is the key to strengthening and deepening the protection of fundamental rights throughout Europe. That is a future to look forward to.
Dean Spielmann is the President of the European Court of Human Rights.
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