Legal Interpretation in Human Rights

Cases: National and International Judges as Readers and as Authors

Anita Soboleva, Ph.D.National Research University Higher School of

Economics (NRU HSE)Law Faculty

Associate professorasoboleva@hse.ru

For IRTSL-2014, Copenhagen

Necessary in democratic society• Article 8 – Right to respect for private and family life

There shall be no interference by a public authority with the exercise of this right except such as is…necessary in a democratic society…  

• Article 9 – Freedom of thought, conscience and religion

…shall be subject only to such limitations as…are necessary in a democratic society … 

• Article 10 – Freedom of expression

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are…necessary in a democratic society… 

• Article 11 – Freedom of assembly and association

No restrictions shall be placed on the exercise of these rights other than such as… are necessary in a democratic society in the interests of…

The main thesis

In the human rights discourse national judges are more ‘readers’ than

‘authors’ of human rights texts, while judges of the ECtHR are turning

into ‘authors’ of new legal concepts, which they are developing through

cross-referencing and cross-fertilization. As a result, in last decades a

concept of ‘margin of appreciation’ has been shrinking, while the

process of globalization of European values has been intensified.

 CASE OF HANDYSIDE v. THE UNITED KINGDOM,

App.no. 5493/72, Judgment of 7 December 1976

…Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force…

Nevertheless, Article 10 para. 2 (art. 10-2) does not give the Contracting States an unlimited power of appreciation. The domestic margin of appreciation… goes hand in hand with a European supervision.

CASE OF KARMAN v. RUSSIAApp. no. 29372/02, Judgment of 14 December 2006

  “In assessing whether such a need exists and what measures should

be adopted to deal with it, the national authorities are left a certain

margin of appreciation. This power of appreciation is not however

unlimited, but goes hand in hand with a European supervision by the

Court, whose task it is to give a final ruling on whether a restriction is

reconcilable with freedom of expression as protected by Article 10.

The Court's task in exercising its supervisory function is not to take the

place of the national authorities, but rather to review under Article 10,

in the light of the case as a whole, the decisions they have taken

pursuant to their margin of appreciation”.

 Article 14 of the Convention

The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex, race,

colour, language, religion, political or other opinion, national or social

origin, association with a national minority, property, birth or other status.

Petrovic v. Austria, 27 March 1998, § 38, Reports 1998-II

52.  The scope of this margin will vary according to the circumstances, the subject matter and the background… As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention…On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy… Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”

The State’s “margin of appreciation” in discrimination cases

•Freedom from discrimination under Article 14 is a qualitative rather than an absolute right•States can have a considerable margin of appreciation. •Whether that margin of appreciation is wide or narrow depends upon:

- the nature of the right involved (Stec v UK (12 April 2006: social rights v. basic rights)

-the extent of the interference (Aziz v. Cyprus (2002) (a Turkish Cypriot living in the Greek part of Cyprus was completely deprived of his right to vote)

New rights for persons with mental disorders

• Maximum reservation of capacity for persons with mental disorders (Lashin v. Russia, Shtukaturov v. Russia);

• Recognition of placement to a psychiatric hospital as ‘detention’ in the meaning of procedural requirement of Art. 6 (D.D. v. Lithuania, Tám v. Slovakia)

• Access to court in proceedings on incapacitation (Stanev v. Bulgaria; D.D. v. Lithuania, Shtukaturov v. Russia, Lashin v. Russia)

• A right to marry for legally incapable persons: a new right is under construction (Lashin v. Russia)

• Respect for wishes and feelings of the persons concerned (Glass v. the United Kingdom)

Access to court: incapable adult has a right to be heard in person in any

proceedings which could affect his or her legal capacity

• CASE OF STANEV v. BULGARIA

App. no. 36760/06, 17 January 2012

• CASE OF LASHIN v. RUSSIA

App.no. 33117/02, Judgment of 22 January 2013

 

Maximum reservation of capacity

• CASE OF LASHIN v. RUSSIA,

App. no. 33117/02, Judgment of 22 January 2013

“[T]he existing legislative framework had not left the judge any other choice than to declare the person concerned fully incapacitated. The Russian Civil Code distinguished between full capacity and full incapacity, but did not provide for any borderline situation, except for drug or alcohol addicts. Therefore, the domestic court in the present case had no other choice than to apply and maintain full incapacity – the most stringent measure which meant total loss of autonomy in nearly all areas of life. That measure was, in the opinion of the Court and in the light of materials of the case, disproportionate to the legitimate aim pursued”.

Access to court and safeguards from arbitrary detention

• CASE OF TÁM v. SLOVAKIA, App. no. 50213/99, Judgment of 22 June 2004

• CASE OF STANEV v. BULGARIA

App. no. 36760/06, 17 January 2012

• CASE OF LASHIN v. RUSSIA,

App. no. 33117/02, Judgment of 22 January 2013

 • CASE OF D.D. v. LITHUANIA

App.no. 13469/06, Judgment of 14 February 2012

 

CASE OF D.D. v. LITHUANIA App.no. 13469/06, Judgment of 14 February 2012

(a)  a person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;

(b)  Article 5 § 4 requires that the procedure followed have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place;

(c)  the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A; also see Stanev, cited above, § 171).

• D.N. v. Switzerland [2001]

• Matter v. Slovakia [1999]

• Varbanov v. Bulgaria [2000]

• H.L. v. the United Kingdom [2004]

Right to marry CASE OF LASHIN v. RUSSIA,

App. no. 33117/02, Judgment of 22 January 2013

 

Russian Family Code

• Article 14 of the Family Code of the Russian Federation of 1995 (Federal Law No. 223-FZ) makes it impossible to marry if at least one of the would-be spouses has been declared incapable by a court because of a mental illness.

•Under Article 16 of the Family Code a marriage may be dissolved at the request of the guardian of a spouse who has been declared incapable by the court.

CASE OF LASHIN v. RUSSIA, App. no. 33117/02, Judgment of 22 January 2013

(continued)

• The Court observes that the applicant’s inability to marry was one of many legal consequences of his incapacity status. The Court has already found that the maintenance of that status (the only measure of protection applicable under the Russian Civil Code to mentally ill persons) was in the circumstances disproportionate and violated Article 8 of the Convention (see paragraph 97 above). In other words, the applicant was unable to marry primarily because of the same two major factors analysed under Article 8, namely the deficiencies in the domestic decision-making process and the rigidity of the Russian law on incapacity.

Respect for wishes and feelings of the persons concerned

• CASE OF GLASS v. THE UNITED KINGDOM

App. no. 61827/00, Judgment of 9 March 2004

•CASE OF GRARE v. FRANCE [1992] ECHR (Admissibility Decision) App. no. 18835/91

•CASE OF HERCZEGFALVY v. AUSTRIA

App.no. 10533/83, Judgment of 24 September 1992

CONCLUSION

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