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Published online by Cambridge University Press: 15 April 2018
Protocol 15 inserts a new recital into the Preamble of the European Convention on Human Rights (ECHR) which affirms the primacy of national authorities in securing the effective realization of Convention rights. The article discusses the context for Protocol 15, notably the Brighton Declaration, and the democratic principles it engages. A selective retreat from substantive supranational review towards systemic supranational review in political expression cases may be occurring. The article questions the emerging pattern by which newer and transitional democracies remain subject to strict levels of supranational scrutiny, whilst their more established counterparts look set to be the main beneficiaries.
1 Fourth Report of Session 2014-15 HL Paper 71; HCP 837 at para 2.1.
2 And see previously Interlaken Follow-Up – Principle of Subsidiarity ECHR (Note by the Jurisconsult) <http://www.echr.coe.int/Documents/2010_Interlaken_Follow-up_ENG.pdf>.
3 See for example Prime Minister Cameron's speech to the Parliamentary Assembly of the Council of Europe on 25 January 2012. For a helpful account locating Brighton as sharing features with a ‘state-centric’ account of subsidiarity in which member states keep ‘maximal authority and immunity’ from external review, see A Follesdal, ‘Squaring the Circle at the Battle of Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has It Just Begun?’ (2015) PluriCourts Research Paper No.15-10 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642403>.
5 A Follesdal and G Ulfstein, ‘The Draft Copenhagen Declaration: Whose Responsibility and Dialogue?’ EJIL Talk! (22 February 2018) <https://www.ejiltalk.org/the-draft-copenhagen-declaration-whose-responsibility-and-dialogue/>.
6 As such it makes no claims about the broader picture of Strasbourg intervention/non-interventions in cases involving other Convention rights.
7 Handyside v UK (1979-80) 1 EHRR 737 at para 49.
8 For a classic statement of this argument, see Ely, J Hart, Democracy and Distrust (Harvard University Press 1980)Google Scholar.
9 Ni Aolain, F, ‘The Emergence of Diversity: Differences in Human Rights Jurisprudence’ (1995) 19 FordhamIntlLJ 101Google Scholar.
10 See thus the dissent of Judge Pinto du Albuqurque in Hutchinson v UK App No 57592/08, Judgment of 17 January 2017.
11 See thus Judge De Meyer (dissenting) in Z v Finland (Judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, 323, para 3) who stated that it was ‘high time for the Court to banish that concept from its reasoning because where human rights are concerned there is no room for a margin of appreciation which would enable the States to decide what is acceptable and what is not’.
12 App No 74025/01, Judgment of October 5 2005. In a different area of UK policy, Home Secretary Theresa May had similarly voiced her frustration at Convention obstacles that hindered her inability to deport a radical Islamic cleric Abu Qatada to Jordan although she ultimately complied with the Court's insistence that the UK Government obtain binding assurances from the Jordanian authorities that Mr Qatada would not be subject to torture/inhuman or degrading treatment and that none of the evidence used against him in Jordanian proceedings would be secured in violation of art 3 of the Convention. See ‘Abu Qatada Deported from UK to Stand Trial in Jordan’ <http://www.bbc.co.uk/news/uk-23213740>. For a recent statement from the Council of Ministers on the matter, see 4.1 Steering Committee for Human Rights (CDDH) CM(2018) 18, Analysis of the legal and procedural aspects of effective alternatives to detention in the context of migration (January 2018) <https://rm.coe.int/0900001680782d83>.
14 Speech to the Parliamentary Assembly of the Council of Europe (2012) January 25 available at <https://www.gov.uk/government/speeches/speech-on-the-european-court-of-human-rights>.
15 For a leading defence of such pluralism see Mahoney, P, ‘Marvellous Richness of Diversity’ (1998) 19 HRlJ 1Google Scholar, 3. Mahoney argues that, just as national judges in political democracies must show deference towards the rights balances struck by freely-elected legislatures, so too must supranational Convention enforcement bodies.
16 <https://www.judiciary.gov.uk/announcements/speech-by-lord-hoffmann-the-universality-of-human-rights/>. For an extrajudicial response from a member of the Court, see R Spano, ‘Universality or Diversity of Human Rights?’ [2014] HRLR 6–11.
17 O'Halloran & Francis v UK (2008) 46 EHRR 21 note here that Lord Hoffmann was especially critical of the dissenting judgments in the Grand Chamber ruling, not the majority opinion. Nonetheless, in his view the application should have been deemed ‘manifestly ill-founded’ at the outset and never admitted for substantive consideration; Al-Khawaja & Tahery v UK (2012) 54 EHRR 23.
18 Hatton v UK (2002) 34 EHRR 1.
19 Reflecting the idea that the evolutive enhancement of rights protection may not have occurred across all Contracting States see Interlaken Follow-Up – Principle of Subsidiarity (8 July 2010), <http://www.echr.coe.int/Documents/2010_Interlaken_Follow-up_ENG.pdf> para 15. For reaffirmation see Izmir Declaration (2011) <http://www.echr.coe.int/Documents/2011_Izmir_FinalDeclaration_ENG.pdf>.
20 App No 59502/00, Judgment of 13 September 2006.
21 I Levin, ‘At a Crossroads: Russia and the ECHR in the Aftermath of Markin’ Verfassungsblog (30 January 2015) <http://verfassungsblog.de/crossroads-russia-echr-aftermath-markin-2/>.
22 Art 32(3) of the Russian Constitution.
23 Tensions between Russia and the Council of Europe have worsened since the annexation of Crimea. The country's delegation has been suspended from the Parliamentary Assembly of the Council of Europe. In return, Russia has suspended payments to the Council of Europe; see further T Batchelor, ‘Russia Cancels Payments to Council of Europe after Claiming Its Delegates Are Being Persecuted over Crimea’ The Independent (30 June 2017) at <http://www.independent.co.uk/news/world/europe/russia-cancels-council-of-europe-payment-members-persecuted-a7816951.html>.
24 <http://www.bverfg.de/entscheidungen/rs20041014_2bvr148104.html>; for comment see Hoffmeister, F, ‘Germany: Status of European Convention on Human Rights in Domestic Law’ (2006) 4 ICON 722Google Scholar.
25 In October 2017, the UK Government announced moves to lift the ban on prisoner voting in respect of prisoners serving short sentences who on the relevant election date have been released on licence back into the community. This announcement is reported to have been accepted by the Council of Europe, see O Bowcott, ‘Council of Europe Accepts UK Compromise on Prisoner Voting Rights’ The Guardian (7 December 2017) <https://www.theguardian.com/politics/2017/dec/07/council-of-europe-accepts-uk-compromise-on-prisoner-voting-rights>. The reform will affect around 100 prisoners.
26 Quoted in Follesdal (n 2). The UK's proposals also wanted to tighten the admissibility criteria for the Court by denying jurisdiction to Strasbourg outside those cases where it was obvious that the national court had made an error.
27 ‘Protocol 15 to the European Convention on Human Rights’ 4th Report of Session 2014-15 (2014) HL Paper 71, HC 837 at para 3.13.
28 ‘Allowing the Right Margin: the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’ and published under the same title in (2012) 14 CYELS 381.
29 ibid.
30 ibid, paras 3.18–19.
31 ibid, para 3.14.
32 <https://menneskeret.dk/sites/menneskeret.dk/files/media/dokumenter/nyheder/draft_copenhagen_declaration_05.02.18.pdf> at para 14. For a sceptical view on the willingness and capacity of States and national courts to confer appropriate rights protection, see E Benvenisti, ‘The Margin of Appreciation, Subsidiarity, Global Challenges to Democracy’ (2016) GlobalTrust Working Paper Series 05/2016, <http://globaltrust.tau.ac.il/wps-2016-05-the-margin-of-appreciation-subsidiarity-and-global-challenges-to-democracy/>. I am very grateful to Dr Eirik Borge for alerting me to this paper.
33 ibid, para 23.
34 A concern for minority rights in general is expressed by Follesdal and Ulfstein (n 5).
35 For examples of this type of criticism, see Lester, A, Proceedings of the 8th International Colloquy on the European Convention on Human Rights (Council of Europe, Strasbourg 1995) 227, 236–7Google Scholar; and Benvenisti, E, ‘Margin of Appreciation, Consensus and Universal Standards’ (1999) 31 NYUJIntlL&Pol 843Google Scholar.
36 Mahoney (n 15) 2.
37 ibid 3.
38 Handyside v UK (1976) ECHR 5.
39 ibid, para 57.
40 Mahoney, P, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’ (1998) 19 HRLJ 2Google Scholar.
41 Mahoney, P, ‘Universality versus Subsidiarity in the Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments’ (1998) EHRLR 377Google Scholar.
42 Wingrove v UK (1997) 24 EHRR 1.
43 ibid, para 58.
44 For separate criticism of weaker supranational protection for artistic expression, see Lester, A, ‘Universality versus Subsidiarity: A Reply’ (1998) EHRLR 73Google Scholar.
45 Müller v Switzerland (1988) 12 EHRR 212—No violation of artist's or gallery owner's freedom of expression after conviction under Swiss obscenity laws for exhibiting paintings depicting sexual relations between men and animals.
46 Otto-Preminger-Institut v Austria (1994) 19 EHRR 34.
47 G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 OJLS 712–15.
48 See thus Follesdal (n 2).
49 It also follows that no such legitimacy claim can be made in the absence of independent and robust mechanisms of oversight of executive policy/law-making.
50 OM Arnardottir, ‘Rethinking the Two Margins of Appreciation’ (2016) EuConst 27.
51 See thus Follesdal (n 48). His preferred ‘person-centred’ account of the margin of appreciation stresses the important role played by functioning and effective domestic mechanisms of self-correction. Where domestic authorities fail to engage in proportionality-style review of rights-reducing measures, then a much stricter standard of supranational review should prevail.
52 Discussed in C Chandrachud, ‘Reconfiguring the Dscourse on Political Responses to Declarations of Incompatibility’ (2014)] PL 624.
53 This interpretation might have been preferred had the UK's early draft version of the Brighton Declaration prevailed at the Council of Ministers gathering. The draft version had included a reference to the responsibility of ‘democratically-elected national legislatures to decide how to implement the Convention in reasoned judgments’; see earlier discussion in Pt I.
54 Arnadottir (n 50) observes that the systemic and substantive elements of subsidiarity are seldom distinguished in the Court's reasoning.
55 Hart Ely, J, Democracy and Distrust (Harvard University Press 1980) Ch 4Google Scholar.
56 Sunstein, C, ‘Political Equality and Unintended Consequences’ (1994) 94 ColumLRev 1390Google Scholar.
57 Johnson, C, ‘Proportional Voting through the Elections Clause: Protecting Voting Rights Post-Shelby County’ (2015) 62 UCLALRev 245–6Google Scholar.
58 Pildes, R, ‘The Constitution and Political Competition’ (2006) 30 NovaLRev 253Google Scholar.
59 Electoral Commission, ‘Standing for Election in the UK’ (2015) <https://www.electoralcommission.org.uk/__data/assets/pdf_file/0008/180458/Standing-for-Election-in-the-UK-report-Jan-2015.pdf> 9. The Commission recommended retention of the accompanying requirement to obtain a certain number of signatures endorsing the candidate.
60 Hart Ely (n 56) 106.
61 VGT v Switzerland (2002) 34 EHRR 4.
62 After the June 2001 ruling, the Federal Swiss Court had somewhat bizarrely rejected the applicant association's renewed attempt to be allowed to air its advertisement on the basis that the applicant had not provided a sufficient explanation of the redress it sought nor had it shown that it still had an interest in broadcasting the original commercial.
63 VGT v Switzerland (no 2), App No 32772/02, Judgment of 30 June 2009.
64 Animal Defenders International v UK (2013) 57 EHRR 607.
65 This would have reflected the UK Government's understanding of the rulings in VGT.
66 The Joint Committee on Human Rights had asked Parliament to look at compromise solutions but ‘the Government had concluded that no fair and workable compromise solution could be found’. Lord Bingham in Animal Defenders Ltd v Secretary of State for Culture, Media and Sport [2008] UKHL 15, para 31.
67 See on this point the dissenting opinion of Judge Tulkens (joined by Judges Spielmann and Laffranque) para 16. A separate set of dissenting judgments was jointly authored by Judges Ziemele, Sajo, Kalaydjieva, Vucinic and De Gaetano.
68 See Rowbottom, J, ‘Political Advertising and the Broadcast Media’ (2008) 67 CLJ 452Google Scholar.
69 Animal Defenders Ltd v Secretary of State for Culture, Media and Sport [2008] UKHL 15, para 35.
70 Joint Dissenting Opinion of Judges Ziemele, Sajo, Kalaydjieva, Vucinic and De Gaetano, para13.
71 But cf the Grand Chamber ruling in Kudrevičius and others v Lithuania App No 37553/05, Judgment of 15 October 2015 discussed below which departs from this pattern.
72 Indeed, outside of political expression/association cases such as commercial advertising where States might more confidently expect to enjoy a broader margin of appreciation, the Court continues to police national restrictions relatively strictly. See thus Sekmadienis Ltd. v Lithuania App No 69317/14, Judgment 30 January 2018. A violation of art 10 was found in relation to billboard advertisements for clothing with captions that stated ‘Jesus, what trousers!’ and ‘Dear Mary, what a dress!’ The basis of the ban in domestic law was the ‘inappropriate’ and ‘distorted’ use of religious symbols. Notwithstanding the broad margin of appreciation enjoyed by domestic authorities in the regulation of commercial expression, the Lithuanian courts had exceeded this limit by conferring ‘absolute primacy’ upon the protection of religious (Christian) feelings and failing to give weight to the intentionally comic use of emotional interjections common in daily speech.
73 Semir Güzel v Turkey, App No 29483/09, Judgment of 13 September 2016.
74 Cumhuriyet Halk Partisi v Turkey, App No 19920/13, Judgment of 26 April 2016.
75 ibid para 88. It is, of course, interesting to speculate whether, in the event that domestic law had been stated with greater precision, the respective interferences in Semir Güzel and Cumhuriyet Halk Partisi would have survived substantive scrutiny.
76 Karácsony and Others v Hungary, App No 42461/13, Judgment of 17 May 2016.
77 Novikova and O thers v Russia, App Nos 25501/07; 57569/11; 80153/12; 5790/13; 35015/13, Judgment of 26 April 2016. For commentary see blog by D Simons and D Voorhoof, ‘One Man Banned: Russia's Treatment of Solo Protests Scrutinised in Novikova v Russia’ Strasbourg Observers (9 May 2016) <https://strasbourgobservers.com/2016/05/09/one-man-banned-russias-treatment-of-solo-protests-scrutinised-in-novikova-v-russia/>.
78 Kudrevičius and others v Lithuania, App No 37553/05, Judgment of 15 October 2015.
79 Simons and Voorhoof (n 78).
80 Alekseyev v Russia, App Nos 4916/07; 25924/08 and 14599/09, Judgment of 21 October 2010.
81 See also Lashmankin & others v Russia App No 57818/09, Judgment of 7 February 2017, where the arbitrary and discriminatory use of local authorities’ powers to consent to peaceful demonstration was held to have violated art 11. A number of human rights groups and LGBT activists had been permitted to assemble at remote, out of town locations presenting issues of personal safety for participants whilst pro-Government groups were favoured with city centre permits. A clear theme in the Court's reasoning in this and other public protest cases is the evident lack of official tolerance towards peaceful, anti-Government demonstrators.
82 Alekseyev v Russia, App Nos 4916/07; 25924/08 and 14599/09, Judgment of 21 October 2010, para 81.
83 Bayev and others v Russia, App No 67667/09, Judgment of 13 November 2017.
84 ibid, para 83.
85 The sole dissent from the Russian judge treats the dispute in essence as requiring the Strasbourg Court to accord the respondent State a wide margin of appreciation (which was not in the event exceeded) for two main reasons. First, the applicants’ expressive activity was considered to fall outside the category of political expression altogether, being concerned with matters of morals, decency and religion. Second, domestic law sought to balance two conflicting rights (art 10 interests of campaigners and the art 8 interests of families and parents).
86 Perincek v Switzerland, App No 27510/08, Judgment of 15 October 2015.
87 Meaning that there was no separate basis under art 17 for rejecting the applicant's case.
88 See thus the discussion at para 256 of the various national legal systems’ positions ranging from the absence of dedicated laws criminalizing the denial of historical events (UK, Sweden, Spain, Denmark, Finland) to States penalizing the denial of the Holocaust and Nazi crimes (Austria, Belgium, France, Germany, Netherlands, Romania) and Holocaust, Nazi and communist crimes (Czech Republic and Poland) and at the other end States that apply the criminal law to the denial of any genocide (Andorra, Cyprus, Hungary, Latvia, Macedonia Slovakia and Switzerland).
89 See Hale, B, ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’ (2012) HRLR 77Google Scholar.
90 Axel Springer AG v Germany [2012] ECHR 227, para 88.
91 Von Hannover v Germany (no 2) (2012) 55 EHRR 15, para 107.
92 The main link was provided by the presence of Armenian and Turkish citizens on Swiss soil.
93 The majority noted that there were few, if any, survivors from the events of 1915.
94 Gra Stiftung gegen Rassismus und AntiSemitismus v Switzerland, App No 18597/13 (2018) Judgment of 9 January.
95 Follesdal and Ulfstein (n 5).
