By Aikaterini Tsampi| A.Tsampi@rug.nl
This year, the European Court of Human Rights (ECtHR/Court) turned 60. To celebrate this occasion at the University of Groningen, the “ECtHR Evenings” were organised at the Faculty of Law – Department of Transboundary Legal Studies. In the framework of four “ECtHR Evenings” sessions, which took place between April and May 2019, UG LLB students researched, read and reflected on the recent (2019) ECtHR case-law under the supervision of dr. Aikaterini Tsampi. While many cases were discussed during these sessions, the present blog contribution will focus on the outcome of two proceedings that have already marked the 2019 judicial activity, if not the entire history, of the Court.
On 10 April 2019, the Grand Chamber of the European Court of Human Rights delivered its Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother, under Article 1 of Protocol No. 16 to the European Convention on Human Rights (“ECHR” or “Convention”). Shorty thereafter, the Grand Chamber delivered its judgment in Proceedings under Article 46 § 4 of the Convention in the case of Ilgar Mammadov v. Azerbaijan.
Without a doubt, the two aforementioned texts will determine the Court’s legacy well beyond its 60th anniversary. In the present post, we will examine in what ways these cases mark a new direction in the jurisprudential trajectory of the Court (a) and assess what the Court’s approach is in both of them (b).
I. Tempora mutantur, nos et mutamur in illis*: Celebrating two firsts
*Times are changed, we also are changed with them.
In its advisory opinion, the Court provided its view on the questions asked by the French Court of Cassation, namely the compatibility with Article 8 of the European Convention on Human Rights (ECHR) of a) the refusal of a State-party to transcribe into the civil status register the birth certificate of a child born abroad through surrogacy, “in so far as the certificate designates the ‘intended mother’ as the ‘legal mother’, while accepting registration in so far as the certificate designates the ‘intended father’, who is the child’s biological father”; and b) “the possibility for the intended mother to adopt the child of her spouse, the biological father, this being a means of establishing the legal mother-child relationship” (para 9).
In the judgment on infringement proceedings, the Court had to answer the question referred to it by the Committee of Ministers of the Council of Europe on “whether the Republic of Azerbaijan [had] failed to fulfil its obligation under Article 46 § 4” vis-à-vis the earlier Ilgar Mammadov v. Azerbaijan judgment of 22 May 2014, by failing to release Mr. Mammadov from detention. In that judgment the Court found, inter alia, a violation of Article 18 in conjunction with Article 5 considering that the prosecution of the applicant, a prominent opposition figure, was not based on reasonable suspicion but pursued the “ulterior purpose” of silencing or punishing Mr. Mammadov for opposing the government’s agenda.
It is clear from the abovementioned description of the two cases that they essentially pertain to the interpretation and application of completely different provisions. Yet, they have a lot in common, both formally and substantially. Both are firsts of their kind for the Court. The 2019 advisory opinion is the first ever opinion given by the Court under Protocol 16 since its entry into force in August 2018. In a similar vein, the judgment on the infringement proceedings against Azerbaijan is the outcome of the maiden application of Article 46 § 4 since its introduction by virtue of Protocol 14. Being the firsts of their kind is, however, not their only common feature. The texts of both the advisory opinion and judgment on the infringement proceedings reflect the [legitimate] agony of the Court to set a robust framework for the realisation of the subsidiarity implied in both procedures.
Both Protocol 14 and Protocol 16 – along with all other ECtHR reforms – were adopted to guarantee the effectiveness of the ECHR control mechanism. The principle of subsidiarity underlies all the measures taken to increase this effectiveness. Certainly the advisory opinion procedure – whereby the ECtHR’s opinion can be requested by domestic superior courts – but to a certain extent also the empowering of the Committee of Ministers to bring infringement proceedings in the Court against any State-party which refuses to comply with a judgment, put forward what can be called an institutionalized or modernized concept of subsidiarity.
II. Omnium rerum principia parva sunt*: Two firsts to be indeed celebrated?
*The beginnings of all things are small.
The maiden application of a new procedure implies a number of challenges. Even though both the advisory opinion and judgment are not immune to criticism, the Court proves its readiness to tackle these challenges, namely by delineating its role with phronesis.
Its first Protocol 16 advisory opinion is a short text in which the Court, avoiding any kind of prolixity, provides concrete answers to the questions asked by the Court of Cassation in October 2018. The Court acknowledges that its role is confined in providing “the requesting court or tribunal with guidance enabling it to ensure respect for Convention rights when determining the case before it”, but also points out that this need to be done “within as short a time frame as possible” (para 34). The text of the advisory opinion needs to be read, thus, in light of this pragmatic consideration. Even though there are opinions suggesting that the Court should have gone further with the discussion of the surrogacy issues, the present author contends that the Court managed to strike a fair balance between the need not only for complete yet also timely answers (see also Buyse). This is not the only balancing act that the Court needed to achieve. The advisory opinion also reveals the effort of the Court to accommodate its traditional model of supervision, which revolves around binding judgments, with this new advisory role. To address the first question asked by the French Cassation Court, the ECtHR refers to its existing case-law [on the existence of a biological link with at least one of the intended parents] “while making clear that it may be called upon in the future to further develop its case-law in this field, in particular in view of the evolution of the issue of surrogacy” (para 36). The European judges, fully cognizant of the nature of their advisory role, delineate strictly the scope of their opinion on the questions asked so as not to restrain the exercise of the Court’s future judicial function with respect to eventual individual applications pertaining to the same legal issue (or even to the context of the domestic proceedings that gave birth to the request for this very advisory opinion). Considering the second question asked, the Court accepts that the Convention requirements for the recognition of a legal parent-child relationship with the intended mother can be satisfied by the adoption of the child by the intended mother ‘provided that the procedure laid down by domestic law ensures that it can be implemented promptly and effectively, in accordance with the child’s best interests” (para 55). The Grand Chamber does not, however, assess the compatibility of the French legislation with these criteria, explicitly stressing that this role belongs to the domestic courts. It does provide, though, the domestic courts with some guidance as to the execution of this mission inviting them to take into account the vulnerable position of the children concerned while the adoption proceedings are pending (para 58). In doing so, the Court fulfills its advisory role by embracing the concept of subsidiarity stemming from it, without, at the same time, excluding the possibility of reviewing the compatibility of the French legislation with the Convention should this question arise in the future by virtue of an individual application.
Breaking away from the brevity of the advisory opinion, the judgment on the infringement proceedings is a relatively lengthy document (74 pages). This comes as no surprise, as the Court needs to explicate its new role, being cautious not to deter the “fundamental institutional balance” between the Court itself and the Committee of Ministers. “In infringement proceedings the Court is required to make a definitive legal assessment of the question of compliance” (para 168) without “displacing” in globo the Committee from its supervisory role (para 166). This delineation revolves around the key-notion of “effectiveness” of the Convention system. This effectiveness encompasses both the effectiveness of the rights themselves but also of the execution process (para 215). The Court underlines in different parts of the judgment that “the Court’s authority and the system’s credibility both depend to a large extent on the effectiveness of this [execution] process” (paras 158, 216). Whether this effectiveness will indeed be achieved remains to be seen (see, indicatively, Dzehtsiarou).
While turning 60, the Court has proven to be, just like the Convention, not only a “living” but also a lively institution. It is this author’s firm belief that the requests for advisory opinions will only multiply with time. Infringement proceedings, on the other hand, might be a different story. Their triggering requires a decision adopted by a two-thirds majority vote of the representatives entitled to sit on the Committee of Ministers. Furthermore, it can be argued that the infringement proceedings request in the case of the Ilgar Mammadov v. Azerbaidjan was precipitated by the challenges inherent in the interpretation and implementation of Article 18 itself, which was only recently clarified. After all, in the most recent cases where a violation of Article 18 was found, the Court provided guidance as per the individual or general measures under Article 46 (see Aliyev v. Azerbaijan, Navalnyy v. Russia and Selahattin Demirtaş v. Turkey (no. 2), the latter being referred to the Grand Chamber).
In all cases, a new life-cycle has opened up for the Court of Strasbourg. The advisory opinion and judgment on infringements proceedings are the first illustrations of what could be described as the “age of tangos”. It takes more than the Court alone for the system of Strasbourg to effectively operate. This new life-cycle finds the Court in a close embrace both with the national authorities of the State-parties to the Convention and the Committee of Ministers. The footwork needs to be rhythmic and the Court seems to be conscious of the challenges inherent to it. Time will tell how good of a dancer the Court is and how successful this new cycle will be.
Aikaterini [Katerina] Tsampi is Assistant Professor of International Law at the University of Groningen. She was awarded her PhD in Human Rights from the University of Strasbourg, France. Her monograph “Le principe de séparation des pouvoirs dans la jurisprudence de la Cour européenne des droits de l’homme” was published by Pedone, Paris, Publications de la Fondation Maragkopoulos pour les droits de l’homme in 2019. She completed her LLM studies in International Human Rights Law and IHL at the Panthéon-Assas University Paris II and in Specialised Public Law at the Universities of Bordeaux IV and Athens. From 2013 until 2017, she was employed as Legal Officer at the Greek National Commission for Human Rights, the National Human Rights Institution (NHRI) of Greece. As an independent researcher, she has been involved in several human rights projects and activities, She is a qualified lawyer at the Rhodes Bar Association.