Human Rights Committee and European Court of
Human Rights: Precarious or Cohesive Interpretation
of the Same Rights?
Master Thesis
by
Alexandros Gkousis
Supervisor: Professor Yvonne M. Donders
Public International Law - University of Amsterdam
July, 2015
Contents
I.Introduction
A.
The Human Rights Committee and the European Court of Human Rights 4B.
Purpose and outline of the thesis 5II. Problematic phenomena related to diverging case law
7A.
Fragmentation 7B
. Forum Shopping 11III. HRC and ECtHR: Different interpretations on same-subject rights
14A.
The right to manifest one’s religion: religious attire 141. Religious attire in universities 15
2. Religious attire in schools 17
3. Religious attire in document photos 20
B.
The right to a fair trial-The right to defend oneself in person 23C.
The right to be free from torture 26IV. What does the diverging case law indicate in terms of the necessity for
reconciliation?
30A.
The margin of appreciation- The ‘manifestly ill-founded’ admissibility condition 31
B.
Divergence pattern (forum externum) 35
D.
An overall view: The Quest for Coherence 37V. The most pragmatic solution: Judicial Dialogue
39VI. Conclusion
43VII. References
44A.
Bibliography 44B.
Table of cases 46I. Introduction
A. The Human Rights Committee and the European Court of Human Rights
The ICCPR and the ECHR are two prominent conventions in the field of human rights protection
.
Their relationship and co-existence has been evolving ever since the ICCPR was adopted back in 1966, being the second of the two instruments to be born. Analysis and inquiry of their relationship is something of major importance in the sense that they cover similar territory from a substantive point of view, namely they contain same rights.1 Such an analysis gains more importance if we take into account that all 47 member states of the ECHR are also bound by the ICCPR. This means, practically, that European states’ individuals are accorded same-subject rights in the context of two different regimes and, hence, it is essential that these rights are subjected to as much conformity as possible.The Human Rights Committee and the European Court of Human Rights are the two organs charged with the duty of monitoring compliance with the two treaties and, accordingly, they are in charge of interpreting these rights by adjudicating on issues arising out of the two respective conventions. One fundamental difference between the two bodies is that the Court’s decisions are legally binding, whereas decisions of the Committee are not. This difference derives, inter alia, from the fact that the ECtHR is a Court in the strict and literal sense of the term. The HRC, on the other hand, is a quasi-judicial organ comprising experts who are legally capable, based on the Convention, of receiving and considering complaints regarding alleged violations of the ICCPR. The fact that the Committee’s decisions lack bindingness, though, does not automatically mean that filing a claim with the HRC is devoid of purpose, since there are still important reasons for doing so when a violation occurs.2 Some of the other differences between the two organs are the
1
Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights, (Oxford University Press, 2010), p 153.
compulsory nature of the ECtHR system, in contrast to the optional nature of the Committee’s jurisdiction as well as the fact that the procedure before the Court is oral whereas the HRC receives the argumentation by the relevant parties exclusively in written form.
The truth is that the HRC and the ECtHR have succeeded in not interfering with one another, mainly by virtue of clauses or reservations/declarations existing in the two conventions that prohibit re-examination of the same case, when it has previously been examined by one of the two (quasi-) judicial organs. Indeed, article 35 (2)(b) of the European Convention stipulates that the Court shall not deal with any individual application that ‘has already been submitted to another procedure of international investigation or settlement’. On the other hand, article 5(2)(a) of the first Optional Protocol of the ICCPR does not preclude examination of a case by the HRC when it has previously been brought before the Court. Only concurrent examination of the same case is precluded, according to this provision of the Protocol. Nevertheless, reservations/declarations have been inserted in article 5(2)(a) by a substantial number of European states, so that double adjudication of a complaint is not an option for European individuals. As a matter of fact, such reservations are strongly recommended by the Council of Europe.3 It should be noted, though, that the HRC recently adopted a restrictive approach towards these reservations, thus showing a willingness to weaken their ability of precluding the double examination of a case.4
B. Purpose and outline of the thesis
The main purpose of this thesis is to try to find out to what extent there is a need to reconcile the same-subject rights that exist under the two conventions. Of course, this is an issue that can be approached in a number of different ways. In the context of this thesis, I will try to answer this question by spotting diverging jurisprudence of the HRC and the Court
3
Ibid, p 151.
on same-subject rights and based on similar factual scenarios, and by zooming in the details and reasoning of the two organs in each case. Subsequently, conclusions regarding the necessity for reconciliation will be drawn, on the basis of this jurisprudence. The reason that this approach was chosen is that human rights provisions are phrased in open-ended terms.5 Hence, the way these provisions are interpreted by the two bodies, the Committee and the Court, is of great importance in order to clarify the range and the exact content of the rights. These two bodies constitute, in that sense, essential doorkeepers of the interpretation of these vaguely-phrased human rights articles.
As far as the general outline of this thesis is concerned, the chapter after this introduction will present the negative effects that deviating case-law between the HRC and the ECtHR can have in the field of human rights. Indeed, the presentation of such effects is important in order to justify the whole purpose of the thesis. Because, if different interpretations of same rights did not create or accommodate any problems, then there would not be a need to present this diverging case-law as something that, potentially, needs reconciliation. The next chapter will deal with the main core of this essay, namely the deviating case-law between the two (quasi-) judicial organs, by presenting jurisprudence where the HRC and the ECtHR interpreted same-subject rights differently, either by virtue of examination of the same case or in different cases. The relevant case-law was selected not only on the basis that the two bodies had to deal with same rights, but also same factual scenarios. In other words, the specific context of the facts included in the compared cases had to be as similar as possible. This is an important criterion which will ensure that the presented divergences are accurate, since even slight factual differentiations sometimes play an important role in courts’ decisions. The extensive analysis of the argumentation and reasoning of the two bodies in these deviating decisions will help us identify the causes of the different interpretations and will constitute the vehicle in answering the question of a possible necessity for reconciliation. In the next chapter, indeed, the diverging jurisprudence is utilized so that conclusions can be drawn on whether there is a need to reconcile same-subject rights and to what extent. The relevant conclusions will be drawn by virtue of
5 Antoine Buyse, ‘Tacit citing- The Scarcity of Judicial Dialogue between the Global and the Regional Human
Rights Mechanisms in Freedom of Expression Cases’ p 1-2, The United Nations and Freedom of Expression and
Information: Critical Perspectives, Tarlach McGonagle and Yvonne Donders (eds), (Cambridge University Press,
common denominators existing among the different diverging pairs. Finally, a practical issue which is strongly related to this research will be addressed, namely to what extent the same rights existing under the two conventions could be reconciled.
As the above-mentioned outline indicates, before diving into the aforementioned case-law, a preliminary, yet critical, question has to be answered. That is, even if diverging jurisprudence is presented and analyzed, why would there be a need to reconcile the rights under the two regimes? The answer is that deviating case-law can, potentially, relate to a number of problematic situations, something which will be discussed in detail in the following chapter. The most prominent of these ‘problematic’ situations are the wider phenomenon of fragmentation and the more specific one of forum shopping. And bearing in mind that this discussion takes place in the context of the human rights conventions, the structure of which differs from the general public international law’s ones, since they are vertically structured and protect the rights of individuals,6 we cannot afford to let the individuals be the victims of the problematic phenomena accommodated by different interpretations of the same rights.
II. Problematic phenomena related to diverging case-law
A. Fragmentation
Fragmentation refers to the phenomenon whereby international law is split into highly specialized ‘boxes’ which claim relative autonomy from each other, becoming especially problematic when these specialized ‘boxes’/regimes contain same rights.7 In our case, it relates to the fact that European states undertake to protect same rights under both the ICCPR and the ECHR, with the subsequent risk of accepting differing or even conflicting
6 Christina Binder, ‘The European Court of Human Rights and the Law of Treaties- Sign of Fragmentation or
Unity?’ p 41, The European Court of Human Rights and Public International Law: Fragmentation or Unity?, Christina Binder and Konrad Lachmayer (eds), (Nomos, 2014).
7
Siobhan Mcinerney-Lankford, Fragmentation of International Law Redux: The Case of Strasbourg, 32(3) O.J.L.S. (1999), p 609-632.
interpretations, by the Committee and the Court, of what are, at the core, similar standards.8 This is the phenomenon of judicial fragmentation.9 Human rights treaties, indeed, have always had a prominent place in the fragmentation debate,10 inter alia because their interpreters, namely global and regional human rights bodies such as the HRC and the ECtHR, have developed in parallel rather than in inter-institutional unison.11 What is more, fragmentation has become extremely relevant and contemporary for one simple reason: the proliferation of courts or quasi-judicial bodies charged with the duty to deliver (non-) binding decisions.12
Indeed, the last decades the number of the (quasi-) judicial institutions adjudicating not only on different fields of international law, but also on the very same field by virtue of different conventions/regimes, has radically increased. What makes the co-existence complicated is that each judicial body functions under a different regime, thus having its own independent rules and adopting its own doctrines. These (quasi-) judicial bodies are not obliged to adjudicate by taking into account doctrines and interpretations stemming from different conventions of the same field or they simply cannot do so. The HRC, for example, being a universal body, cannot explicitly take into account the European Court’s interpretations/standards.13 The aforementioned independence that these bodies enjoy, thus, can subsequently lead to diverging interpretations of same-subject rights. This is an especially tricky situation if we take into account the fact that international law exists and operates in a system where no common rules regarding hierarchy exist.14 Hence, no jurisdiction can be regarded as inferior or superior, just ‘separate’ and, accordingly, the
8
Antoine Buyse, ‘Tacit citing- The Scarcity of Judicial Dialogue between the Global and the Regional Human Rights Mechanisms in Freedom of Expression Cases’ p 2, The United Nations and Freedom of Expression and
Information: Critical Perspectives, Tarlach McGonagle and Yvonne Donders (eds), (Cambridge University Press,
2015).
9
Philippa Webb, International Judicial Integration and Fragmentation, (Oxford University Press, 2013) p 6
10 Christina Binder, ‘The European Court of Human Rights and the Law of Treaties- Sign of Fragmentation or
Unity?’ p 41, The European Court of Human Rights and Public International Law: Fragmentation or Unity?, Christina Binder and Konrad Lachmayer (eds), (Nomos, 2014).
11 Antoine Buyse, ‘Tacit citing- The Scarcity of Judicial Dialogue between the Global and the Regional Human
Rights Mechanisms in Freedom of Expression Cases’ p 2, The United Nations and Freedom of Expression and
Information: Critical Perspectives, Tarlach McGonagle and Yvonne Donders (eds), (Cambridge University Press,
2015).
12 Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights, (Oxford
University Press, 2010) p 15.
13
See chapter V.
diverging interpretations remain without closure. And this is something that constitutes a threat to the consistency and cohesiveness of international human rights law.15
It should be noted that fragmentation is not necessarily understood by everybody as something negative. It has been argued, for example, that the proliferation of judicial bodies can strengthen legal and judicial pluralism, encourage more voices to be heard.16 In the same line of reasoning, fragmentation could be seen as a way to reach refreshing conclusions and solutions through the interaction of the courts. It should be underlined, though, that the latter statement presupposes the will of the judicial bodies themselves to take each other’s findings into account, as they are not obliged to do so and, accordingly, this is something that partially diminishes the validity of the statement. In any case, fragmentation can be, potentially, conceived in a positive way in relation to the plurality of opinions and the interconnection between the bodies that can be offered by it, but not in relation to diverging jurisprudence regarding same-subject human rights. Imagine, for example, a French citizen being the recipient of two different standards regarding the same right, because of inconsistency between the HRC and the Court. This is a situation that rather weakens than enhances the protection of human rights;17 creates confusion rather than protection and foreseeability, especially in the absence of a final, clarifying jurisdiction. In that sense, the existence or not of diverging jurisprudence between these two organs is important for the purpose of linking it to the issue of fragmentation.
On the other hand, it has been argued that anti-fragmentation is not a panacea and that an intense quest for unity could harm the effective protection of specialized fields such as human rights.18 But this is an argument that rather addresses the issue of fragmentation regarding different-subject fields and not diverging interpretations related to two human rights conventions which contain same-subject rights. When two human rights provisions which are of the same subject and which are accorded to the same states’ individuals are
15
Ibid.
16 Ole Kristian Fauchald and André Nollkaemper, The Practice of International and National Courts and the
(De-)Fragmentation of International Law, (Oxford: Hart Publishing, 2012) p 6.
17
Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights, (Oxford University Press, 2010) p 20.
18 Christina Binder and Konrad Lachmayer, ‘Introduction-The Reception of Public International Law in the
Jurisprudence of the European Court of Human Rights: Sign of Fragmentation or Unity?’, Christina Binder and Konrad Lachmayer, The European Court of Human Rights and Public International Law: Fragmentation or
interpreted differently, this is an issue that touches the core of the whole fragmentation discussion. Decisional fragmentation constitutes, as has been aptly formulated, a damaging phenomenon to the international legal system.19 Contradictory decisions by the Committee and the Court can lead to a number of unpleasant consequences such as forum shopping, uncertainty, unforeseeability, and inequality between victims of human rights violations.20 Additionally, decisional fragmentation can lead to loss of confidence and/or respect in the rule of law, on the basis of the following reasoning: since the human rights system, just like the general international law system, lacks a final court of appeal, its legitimacy rests to a large extent on the international community’s confidence in the way human rights law is applied.21 In that sense, coherent and compatible pronouncements on the law by the two bodies, the HRC and the Court is vital to this confidence. If states and individuals were to consider that the law applied by the two bodies is unfair because like cases are not treated alike, they might not respect those decisions.22 Such disrespect would negatively affect the human rights system’s legitimacy as well as its enforceability. What is more, it has been argued that fragmentation creates a regulatory order that reflects the interests of the powerful.23 If we combine this statement with the fact that individuals, and not states, are the subjects of human rights, it becomes obvious that fragmentation related to the two human rights conventions is not a human rights-friendly situation, quite the contrary.
It is clear from the above-mentioned that diverging jurisprudence by the two human rights (quasi-) judicial organs constitutes one of the negative aspects of fragmentation as it threatens unity, cohesiveness, legal safety and, in the end, protection of human rights. This is the case for the American states as well, for example, which are bound by both the ICCPR and the Inter-American Convention on Human Rights. This thesis, though, is limited to deviating jurisprudence, and its consequences, in the context of the ICCPR and the ECHR.
19
Philippa Webb, International Judicial Integration and Fragmentation, (Oxford University Press, 2013) p 6.
20 Ibid. 21 Ibid, p 6-7. 22
Ibid, p 7.
23
Ole Kristian Fauchald and André Nollkaemper, The Practice of International and National Courts and the
B. Forum Shopping
Forum shopping belongs to the wider sphere of fragmentation but it will be mentioned separately here as it constitutes a characteristically negative aspect of diverging case-law.24 Forum shopping could be defined as the effort to secure the best possible judicial decision by taking advantage of the existence of more than one (quasi-) judicial bodies available for a specific claim.25 In other words, it is a succession or selection of a (quasi-) judicial forum as it can refer, respectively, to either a presentation of the same claim before two different tribunals or an a priori careful selection of the best possible forum, based on certain criteria. The most important criteria that someone takes into account when choosing a forum are the advantages that the substantive law of the forum can offer, the procedural rules, whether the protection that is offered is rapid and, lastly, whether the final judgments are
indeed implemented/executed.26
The decentralized system of international law plays a very important role in the phenomenon of forum shopping in the sense that the lack of hierarchy between the different bodies as well as the lack of common rules regarding the substantive examination of a case create a complex scenery, where victims and their lawyers seek for the friendliest forum possible. It should be underlined, at this point, that because of the clauses contained in the ICCPR and the ECHR,27 European citizens cannot bring the same claim before the Committee and the Court at the same time and some European citizens cannot even do that consecutively as 18 states have entered a reservation in article 5(2)(a) of the first Optional Protocol to the ICCPR. This is something that renders the existence of deviating jurisprudence between the two bodies all the more important. Because, if individuals cannot take advantage of both forums, at the same time or even at all in some cases, then extreme meticulousness and caution will be given as regards the choice of the institution where the application will be filed.28 The applicants must, therefore, seek for the most
24
Joost Pauwelyn and Luiz Eduardo Salles, Forum Shopping Before International Tribunals: (Real) Concerns,
(Im)Possible Solutions, 42 Cornell Int’l L. J. (1999), p 83.
25 Laurence R. Helfer, Forum Shopping for Human Rights, 148 U. PA. L. Rev. (1999), p 296. 26
Ibid, p 303.
27
Article 35(2)(b) of the ECHR and Article 5(2)(a) of the first OP to the ICCPR.
victim-friendly forum by reflecting on previous jurisprudence of the two bodies.29 This is a process, a dilemma that individuals should not be subjected to, especially since it is triggered by the existence of two different standards regarding the same right. In the case where the HRC interprets a specific right in a more victim-friendly way compared to the Court, this dilemma is getting even more troublesome: the fact that the HRC issues non-binding decisions whereas the Court is capable of delivering legally non-binding decisions practically means that the individual may have to choose between applying to the Court in order to acquire a binding judgement but risk having his claim rejected and applying to the Committee where his chances of getting his right recognized are higher but only by a non-binding judgement.
But even when individuals can file a claim with both bodies, 30 meaning that the relevant European state has not entered a reservation in article 5(2)(a) of the first OP,
diverging decisions on the case will, essentially, render the dispute unresolved.31 In these instances, the absence of a Supreme Court which would decide on last instance is crucial and, indeed, renders the situation unresolved, lingering, in contrast to situations of diverging interpretations in the domestic legal order, where the existence of a superior court leads to closure. Diverging jurisprudence by the HRC and the Court can even threaten the legitimacy of the wider human rights system32 and create a loss of confidence in the protection offered by the two human rights conventions. Victims of human rights violations should view these two bodies as human rights protectors who can cohesively accommodate same-subject rights. European individuals should not wonder whether their claim fits the interpretation of a right by a specific (quasi-) judicial body, but whether it fits the interpretation of a right in the context of human rights law as an overall system which accords same rights to European states. It should be noted that, especially in the case of successive petition forum shopping, deviating decisions undermine the authority of the European Court to hand binding and, most importantly, final decisions.33 In such cases the
29 Ibid, p 294.
30
‘successive petition forum shopping’, See Laurence R. Helfer, Forum Shopping for Human Rights, 148 U. PA. L. REV. (1999), p 306.
31 Joost Pauwelyn and Luiz Eduardo Salles, Forum Shopping Before International Tribunals: (Real) Concerns,
(Im)Possible Solutions, 42 Cornell Int’l L. J. (1999), p 81.
32
Joost Pauwelyn and Luiz Eduardo Salles, Forum Shopping Before International Tribunals: (Real) Concerns,
(Im)Possible Solutions, 42 Cornell Int’l L. J. (1999), p 83.
HRC operates as an appeals tribunal,34 but, obviously, without having been empowered to operate as such.
Lastly, it should be stated that deviating case-law can, potentially, lead to a competition between the HRC and the ECtHR, thus creating a marketplace environment in the field of human rights. The two bodies would, potentially, try to cut and tailor procedures and interpretations of the rights according to their clients’ needs so that they could attract more of them, to the detriment of an objective approach to justice.35 Justice would, accordingly, acquire a commerciality which is neither appropriate nor promising. It could be argued here that since the ‘clients’ of the human rights conventions/courts are the individuals, each human rights body would try to secure a more human rights-friendly reputation than its counterpart(s) and, hence, this would be of benefit to the individuals ultimately; they would enjoy enhanced protection. Two things must be counter-argued here. Firstly, such a situation would still not solve the issue of inconsistent/diverging case-law, in fact it would exacerbate it and the same goes for the whole ‘commerciality’ issue. Secondly, this would be a situation where states would have to abide by stricter (for them) interpretations of provisions than the ones they had consented to. Hence, an issue of altering obligations of states would arise, something which, from a legal point of view, would be problematic.
34 Ibid, p 343.
III. HRC and ECtHR: Different Interpretations on Same-subject Rights
A. The right to manifest one’s religion: Religious Attire
The freedom of religion is envisaged in article 9 of the ECHR and in article 18 of the ICCPR. These two provisions do not, essentially, differ in terms of substance. Under both regimes the forum internum cannot be interfered with. The individuals’ freedom to believe in the religion of their choice must be respected by the state unconditionally.36 On the other hand, the manifestation part of the freedom- namely the forum externum, the right that individuals have to manifest their religion by, Inter alia, wearing clothing relevant to their religion- is subject to an exhaustive catalogue of limitations as stipulated in articles 9(2) of the ECHR and 18(3) of the ICCPR. The formulation of these two provisions seems to be slightly different in that the European article refers to necessity of a limitation in a ‘democratic society’. In practice, though, the two bodies apply the same principles when assessing whether a limitation is permissible, as they both use the ‘prescribed by law-legitimate aim-necessity-proportionality’- test.37 This makes it all the more interesting to ascertain how and, ultimately, why these two human rights institutions have come to different conclusions in regard to the right to wear religious attire in public places. As was stated before, this jurisprudence research can only be accurate if the cases examined and analysed are based on similar or, even better, identical contexts. For this reason, the case law of the HRC and the Court will be divided and comparatively examined in the context of three different situations: the right to wear religious attire a) in universities, b) in schools and c) in document photos.
36 Kevin Boyle and Sangeeta Shah, ‘Thought, Expression, Association and Assembly’, Daniel Moeckli, Sangeeta
Shah and Sandesh Sivakumaran (eds.), International Human Rights Law, (Oxford University Press, 2014) 2nd ed., p 223.
1. Religious attire in Universities
In the Leyla Sahin vs Turkey case the Grand Chamber of the Court dealt with an alleged violation of article 9.38 The applicant was a female student at the Istanbul university, who had been expelled because she refused to comply with the institutional regulations which forbid her from wearing the Islamic headscarf. She claimed that her right to freely manifest her religion had been violated. The Court upheld the previous decision by the Chamber and found that there had been no violation of article 9. The Court accepted that the interference pursued the legitimate aim of protecting the rights and freedoms of others as well as public order, based on the, well-established in Turkey, principle of secularism. According to the Strasbourg body, the measure was necessary as it was meeting a pressing social need because it was seeking to achieve the aforementioned legitimate aims.39 As regards the proportionality of the interference, the Court was eager to leave that decision to the domestic authorities, thus handing a great dosage of margin of appreciation and declaring the interference proportionate.40
On the other hand, a case with identical facts has been examined by the HRC. In
Hudoyberganova vs Uzbekistan,41 the Committee, in contrast to the findings of the Court in Sahin, concluded that there had been no violation of article 18. What makes this divergence even more interesting is that the two cases were being examined at the same period and the decisions were issued with just one year difference. Hudoyberganova, just like Sahin, was a student at the university of Taskhent. She was expelled by the Rector because she refused to remove her Islamic headscarf during her presence in the university and, hence, she claimed to be a victim of her, based on article 18 of the ICCPR, right to manifest her religion. The HRC, in finding a violation of the relevant provision, noted that the ‘freedom to manifest one’s religion encompasses the right to wear clothes or attire in public which is in conformity with the individual’s faith or religion’.42
38 ECtHR, Leyla Sahin v Turkey, 10 November 2005, (Appl.no. 4474/98). 39 Ibid, paras 115-116.
40
Ibid, paras 117-122.
41
HRC, Raimon Hudoyberganova v Uzbekistan, 5 November 2004, (Comm.no. 931/2000).
In all fairness, though, it should be noted that the Committee found the interference to be impermissible mainly, if not exclusively, because the respondent state did not provide any justification at all for the interference (expulsion). Uzbekistan merely stated that the expulsion was not illegal since it was based on institution rules. Accordingly, the Committee did not even have to practically apply the necessity/proportionality test and, accordingly, found a violation. It could be, thus, argued that the different approach by the HRC in comparison to that of the Court, was due to the poor, almost non-existent, argumentation by the state and not because of a different conception on how the permissible limitations to
forum externum should be applied. But there are two main reasons that urge me to disagree
with such a statement.
Firstly, the case-law of the HRC in the following years showed that the Committee takes a strong presumption in favour of the right to manifest one’s religion. This is obvious in the cases regarding the right to religious dress in schools and in document photos, which will be presented later in this chapter. Although these forum externum cases were discussed under different contexts compared to the Hudoyberganova, they all have one thing in common. In all of those cases, including the Hudoyberganova, the HRC abided strictly by the necessity-proportionality test when assessing the interferences and, additionally, required convincing justification. Accordingly, even if Uzbekistan had provided a legitimate ground and adequate justification for the expulsion, the threshold of the necessity/proportionality test set by the Committee would probably be higher than that set by the Court in Sahin.
The second reason that makes me believe that this divergence was not coincidental derives from the fact that the justification of the decision by the European Court was loosely reasoned 43 and it is highly improbable that the HRC would adopt such a reasoning. It is, indeed, true that the Sahin case was strongly criticized, mainly for providing insufficient argumentation when it came to applying the necessity/proportionality test. These critiques have been, largely, fueled by a very well-argued dissenting opinion that judge Tulkens adopted.44 It would not be an exaggeration to say that this dissenting opinion exposed the gaps in the Court’s reasoning by posing critical, unanswered by the Court’s reasoning,
43 The jurisprudence of the Court in forum externum cases has often been criticized for loose reasoning, See
Bernadette Rainey, Elizabeth Wicks and Claire Ovey, The European Convention on Human Rights, (Oxford University Press, 2014) 6th ed., p 411.
44
Bernadette Rainey, Elizabeth Wicks and Claire Ovey, The European Convention on Human Rights, (Oxford University Press, 2014) 6th ed., p 418.
questions. The Belgian judge criticized the majority’s opinion for not being able to link the notion of ‘pressing social need’ to concrete evidence, concrete examples but only on ‘mere worries and fears’. In other words, there was no evidence or indications that the wearing of a headscarf had indeed exerted pressure on other students or that it had practically endangered the rights and freedoms of other students. The Court, according to Tulkens did not really balance the interests of the individual against the legitimate aims. Instead, gave too much emphasis on the principle of secularism, as elucidated by the Turkish courts. Furthermore, the majority’s decision stated that there was no consensus regarding that aspect of religion in Europe, whereas quite the contrary was true. Namely, no other contracting party had inserted a ban on religious dressing which extended to the higher education level. After all, even if we were to accept that religious symbols do exert pressure on others, even without proselytizing intensions by the persons who wear them, that could be the case in schools and not at a university level where the participants are adults.45
2. Religious Attire in Schools
Schools, compared to universities, constitute a different context as slightly different arguments can be raised. Therefore, the case law of the HRC and the ECtHR regarding the right to manifest one’s religion in the school environment will be separately examined in this section. The first time that the Court had to deal with a relevant claim was in 2006 in the case of Kose and others v Turkey.46 The applicants were several public school students,
alleging that their forum externum right had been infringed since they were not allowed to attend classes because they were wearing Islamic headscarves. It should be noted that the applicants complained for violations of article 2 of Protocol 1 as well (both sentences), but for the purposes of our research and for reasons of symmetry we are only interested in the assessment of the article 9 right. For that part, the case was declared inadmissible as manifestly ill-founded because ‘even assuming that there had been interference with the applicants’ right to manifest their religion, there was no appearance of violation of article 9 since the dress code was a general measure applicable to all pupils.’ But the case was about
45
Ibid, p 418-419.
whether and to what extent such a measure was acceptable, namely to what extent the applicants’ right to manifest their religion could be limited. What the Court essentially says with the above statement is that even if there is an interference, this interference applies to everyone and, hence, there is no violation. In that respect, this is a problematic statement, especially since it constituted the justification of the Court for declaring the application(s) manifestly ill-founded.
Three years later, in 2009, the Strasbourg Court dealt with, substantially, identical situations in the cases of Aktas and others vs France.47 These were six separate cases but
they will be examined as one, something that the Court did as well, since the reasoning and conclusion was common for all 6 of them.48 The applicants were six pupils, four girls wearing headscarves and two boys wearing the ‘keski’, an under-turban worn by Sikhs. Due to the fact that by wearing those symbols they were manifesting their religion, the pupils were expelled, in accordance with a French law of 2004. The ECtHR accepted that the law was pursuing the legitimate aim of protecting the freedoms and rights of others, based on the principle of secularism. Once again, though, the judgment did not explain in which way the expulsion of the students could practically serve the aim pursued or whether there was an actual pressing social need to not allow the pupils into their schools anymore because of their religious dress. The Court concluded by stating that the interference was proportionate since the students could take correspondence courses and ‘having regard to the margin of appreciation left to the national authorities in this area’, declared the applications inadmissible (manifestly ill-founded). Hence, just like in Kose and others vs Turkey , the applicants’ right under article 9, according to the Court, had been lawfully limited.
The HRC, on the other hand, took a totally different stance when it was asked of it to assess an alleged infringement of a pupil’s right to manifest his religion.49 Bikramjit Singh was a student of Indian descent, believer of the Sikh faith. He was permanently expelled from a French public school for refusing to remove the keski he was wearing as a symbol of his religion. The Committee, firstly mentioned its general comment 22 regarding article 18 of the Convention, in order to reiterate that the right to wear distinctive clothes or head
47 ECtHR, Aktas v France, Bayrak v France, Gamaleddyn v France, Ghazal v France, J.Singh v France, R.Singh v
France, 2009.
48
See the press release issued by the Registrar in 17/7/2009.
coverings was an inherent part of the freedom to manifest one’s religion.50 The HRC accepted that the contested law pursued legitimate aims under the Convention (freedoms of others, public order, public safety). In contrast to the approach of the Court in the Akras and others, Kose and others and, of course, the Sahin case, though, the HRC addressed and assessed seriously and substantially the importance that the keski has to the individual.51 In Sahin, for example, the Court overstated the principle of secularism and, at the same time, did not refer at all to how essential a component the headscarf might be for an individual’s identity. What is more, the HRC mentioned that there was no concrete evidence on how the wearing of the keski posed a threat to other pupils or the public order as well as on how the keski had, pragmatically, exerted pressure on others.52 In that sense, the Committee felt that France failed to provide compelling reasons that could dictate and justify the interference and, hence, found the interference to be unnecessary. As far as the proportionality test was concerned, the expulsion was found to have had serious effects on the education of the applicant, effects which were disproportionate to the aim pursued, especially since the state failed to prove, in the first place, the existence of compelling reasons for the intereference.53 That being said, the HRC concluded that there had been a violation of article 18, thus upholding the right of Bikramjit Singh to wear his keski while at school.
It is well worth mentioning that in its argumentation on the merits, the respondent state referred explicitly to the jurisprudence of the ECtHR, noting that the Strasbourg Court adopts a more lenient (for the states) approach towards the permissible limitations of the freedom to manifest one’s religion. France even mentioned that in similar cases the Court leaves to the states ‘some room for manoeuvre’,54 which was France’s way of implicitly referring to the margin of appreciation. It is not clear whether the state, by referring to the case law of the European Court wanted to weaken the claimant’s arguments or just remind the HRC that there is another institution which holds different standards regarding the very same right. What is clear is that, even though the Committee was perfectly aware of the diverging case-law of the Court, it was not affected by it and still went on to confirm, by
50 HRC, General Comment 22, para 4.
51 HRC, Bikramjit SIngh v France, 4 February 2013, (Comm.no. 1852/2008), para 8.7. 52
Ibid.
53
Ibid.
finding a violation, that the two bodies approach this aspect of the right differently. And this is an ascertainment that can only add to the importance of the discussion that this essay proposes.
3. Religious attire in Document Photos
The issue of religious manifestation in document photos is of great interest not only because it addresses a different context than that which was presented above (universities, schools) but also, and mainly, because the HRC and the ECtHR had the chance to express and clarify their views on the very same case.5556 Mann Singh was a French resident of Indian descent, faithful to the Sikh religion. He needed a new driver’s license since his previous one had gotten stolen. His application for a new one, though, was rejected by the French authorities on the ground that he appeared wearing a turban in the photo which would be affixed on the driver’s license. The European Court had no problem declaring that there had been an interference with his right to manifest his religion and that this interference was prescribed by law and pursued a legitimate aim, public safety. The Court continued by noting that the interference was justified because it was necessary in pursuing public safety, since it was a measure that could help identify the drivers during checks as well as help avoiding fraud. Finally, the Strasbourg Court underlined that the ‘modalities of implementing such controls regarding photos affixed on documents fall within the margin of appreciation of the state.’ Thus, it found the interference to be proportionate and declared the application inadmissible as manifestly ill-founded, following the policy that we noticed in the context of religious attire in schools.
After this judicial outcome, Mann Singh brought the same case before the HRC.57 An important side-note here is that France has entered a reservation in article 5(2)(a) of the First Optional Protocol to the ICCPR and, therefore, Mann Singh, under normal circumstances, would not be able to have the same case examined by the HRC. He was able
55 ECtHR, Mann Singh v France, 13 November 2008, (Appl.no. 24479/07). 56
HRC, Mann Singh v France, 19 July 2013, (Comm.no. 1928/2010).
57
See on the issue http://strasbourgobservers.com/2012/03/06/ranjit-singh-v-france-the-un-committee-asks-the-questions-the-strasbourg-court-didnt-ask-in-turban-case/, (Last visited 21 July 2015).
to do so, though, simply because his claim before the HRC was slightly different than that presented in the Court, in that it was referring to a different occasion, but it was essentially and substantially touching the exact same issue. This time Mann Singh complained about the rejection of a passport photo where he was wearing a turban, whereas in his European application he had complained about the rejection of a driver’s license’s photo where he appeared with a turban. It is obvious, therefore, that the claim is, substantially, the same. The Committee accepted that the measure did pursue the legitimate aims of public safety and public order. It was not necessary, though, because the state had not explained why wearing a turban (which leaves the whole face visible) in the photo would make the identification/recognition of the person more difficult. In other words, the state fell short of explaining in what way the interference could be linked to the compelling reason of protecting public safety, since the turban could not hinder the identification of the claimant.58
Additionally, according to the Committee, it was an unnecessary measure because Mann Singh was wearing the turban at all times and, hence, appearing bareheaded in the photo would not help identify the author or fight the risk of forgery/fraud. If anything, this could create more confusion. Finally, in answering one of the state’s arguments, the Committee underlined that appearing bareheaded in the passport photo would not be an ad hoc measure since at many occasions Mann Singh would be compelled to remove his turban in order to appear bareheaded- as in the photo- for identification reasons.59 For this reason, the HRC found the interference to be disproportionate as well and, accordingly, that it violated the author’s freedom of religion under article 18. If something stands out from the state’s arguments is the fact that it expressly mentioned that this case had previously been examined by the Court and even reiterated that decision’s reasoning.60 France also argued that the modalities regarding such issues fall within the scope of the margin of appreciation of the state, a doctrine which the HRC does not endorse, as will be further analyzed in the relevant chapter.61
58 HRC, Mann Singh v France, 19 July 2013, (Comm.no. 1928/2010), para 9.4. 59
Ibid, para 9.5.
60
Ibid, para 6.4.
Even before having a chance to deal with the Mann Singh case, the HRC had already demonstrated its different approach regarding the manifestation of religion in document photos. In Ranjit Singh v France,6263 the complainant had been denied acceptance of photographs where he was wearing a turban, for the purpose of renewing his residence permit. The respondent state invoked, inter alia, the different standards that the Court has developed in relevant issues because of the ‘scope of discretion’ that the European Court accords to the member states. On the other hand, the victim’s argumentation included the fact that photographs with people having huge beards covering their whole face were being accepted by the French authorities and that foreign people wearing turbans in their passport photos were being accepted in the country. He also stated that it was not an occasional interference as the photo would exist on a continuing basis and he would also be repeatedly requested to show the picture and/or remove the turban. The HRC, taking into account the argumentation of both sides, concluded that there had been a violation of article 18, namely of the applicant’s right to freely manifest his religion. The reasoning of the Committee in arriving to this conclusion does not need to be mentioned, as it was, practically, identical with what the Committee would conclude two years later in the Mann Singh case.64 Of particular interest, though, is the fact that Fabian Omar Salvioli, one of the Committee experts in the Ranjit Singh case, in his individual concurring opinion took it a step further, by noting that there had also been a violation of article 2(2) of the Convention and, therefore, the Committee should have indicated that France amends the contested law which, in his opinion, was inherently incompatible with the Convention.65
62 HRC, Ranjit Singh v France, 22 July 2011, (Comm.no. 1876/2009).
63 See on the issue
http://strasbourgobservers.com/2012/03/06/ranjit-singh-v-france-the-un-committee-asks-the-questions-the-strasbourg-court-didnt-ask-in-turban-case/, (Last visited 21 July 2015).
64
The reasoning of that case is mentioned above.
B. The Right to a Fair Trial: The right to defend oneself in person
The right to a fair trial is stipulated in article 6 of the ECHR and in article 14 of the ICCPR. It is an omnibus provision66 in the sense that it comprises and summarizes basic, minimum civil and criminal trial guarantees. It is worth mentioning that it is a provision, a right which is concerned with the process of domestic proceedings and not with their outcome;67 its goal is to provide guarantees to the individual that, as a defendant in a trial, he will be provided with fair proceedings. It is easily understandable that the word ‘fair’ is, of itself, really generic, subjective and open to various interpretations and this is why these two provisions (article 6 of the ECHR and article 14 of the ICCPR), even though they are human rights provisions, which means they are phrased in open-ended terms by default, elaborate further on the fair trial requirements, especially regarding criminal charges.
In this section, a case pertinent to the right to defend oneself in person will be presented, a case which was examined by both the ECHR and the HRC. The right to defend oneself in person is to be found in article 6(3)(c) of the ECHR and 14(3)(d) of the ICCPR. These two provisions are formulated in, almost, the same way. The only difference is the phrase ‘to be tried in his presence’, contained in the ICCPR, but it does not really play a role in the examination of our case. Other than this slight difference, the two articles have, essentially, the same content. As far as the aim of this provision is concerned, it purports to ensure that the defendants will have the possibility of presenting an effective defense.68 This right can operate under different contexts and give rise to corresponding claims. For example, the Court had to deal mostly with claims regarding issues of denial by the state to grant legal assistance69 or vetos by defendants who were dissatisfied with the assigned
66
Bernadette Rainey, Elizabeth Wicks and Claire Ovey, The European Convention on Human Rights, (Oxford University Press, 2014) 6th ed., p 247.
67
Kevin Boyle and Sangeeta Shah, ‘Thought, Expression, Association and Assembly’, Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds.), International Human Rights Law, (Oxford University Press, 2014) 2nd ed., p 270.
68 Bernadette Rainey, Elizabeth Wicks and Claire Ovey, The European Convention on Human Rights, (Oxford
University Press, 2014) 6th ed., p 292.
69
ECtHR, Ocalan v Turkey, 12 May 2005, (Appl.no 46221/99). See also ECtHR, Murray V UK, 8 February 1996, (Appl.no 18731/91).
lawyers.70 Similarly, the HRC dealt, mainly, with complaints regarding occasions where the complainant was denied the right to be represented by a lawyer of his choice, was not assigned a lawyer at all in a criminal trial or the lawyer he was assigned had not provided adequate legal aid.71 We notice, thus, that the two organs rarely had the opportunity to deal with the opposite side of the coin, namely a complaint where the defendant asked to represent himself and, in doing so, rejected assistance by a counsel.
This is the main reason why the Correia de Matos v Portugal case is of extreme importance; it presents an ‘unconventional’ claim, in the sense that it is a claim out of the, until then, ordinary. It should be, additionally, noted that articles 6(3)(c) and 14(3)(d) do not stipulate to what extent the relevant right can be limited, or if it can be limited at all, which means that the two bodies had the chance to clarify their views on the scope of the provision through their jurisprudence. As a matter of fact, only after examining the Correia de Matos case did the HRC adopt a General Comment analyzing the meaning, scope and permissible limitations of the right to defend oneself in person. In this very Comment, the Committee reiterated much of its reasoning in Correia de Matos. Therefore, it appears to me that this case constituted the cause and the motive for the Committee to replace General Comment 13 72 and update its views on article 14(3)(d).
Correia de Matos was a lawyer who had been committed to stand a criminal trial for insulting a judge.73 Although he had repeatedly requested to not be provided with a lawyer, as he wanted to represent himself, he, still, was assigned one as it was obligatory according to the relevant domestic law. He was sentenced to 170 day-fines and was, also, ordered to pay damages to the judge who was the victim of the insult. De Matos claimed in front of the European Court of Human Rights that there had been a violation of articles 6(1) and 6(3)(c) because he had not been allowed to defend himself. The respondent state argued that 6(3)(c) is not an absolute right, it can be subjected to limitations, whereas the applicant, although agreed with the non-absoluteness of the right, stated that the way the right had been curtailed in his case had served the interests of justice and not his own, and invoked breach of the provision both at a legislative and judicial level. The Court, remarkably,
70 ECtHR, Croissant v Germany, 25 September 1992, (Appl.no 13611/88).
71 David Weissbrodt, The Right to a Fair Trial under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, (Martin Nijhoff Publishers, 2001), p 115.
72
Which was adopted back in 1984 and addressed the issues arising out of article 14 much more briefly
declared the application inadmissible as manifestly ill-founded. Firstly, the Strasbourg body underlined that the way the accused will be represented depends upon the applicable legislation or rules of the relevant Court, that it is a matter of the competent authorities to decide. The Court noted that it is a matter which falls within the margin of appreciation of the state, as the relevant authorities are in a better position to ensure the proper defense of the accused’s interests.74 And if the compulsory appointment of a lawyer was considered to be the best way, that was for the state to decide. The Court pointed out, additionally, that even a lawyer could be compelled to appoint a counsel when faced with a criminal charge, subsequently repeating and emphasizing on the margin of appreciation.75 Accordingly, the Court concluded that there had been no apparent breach of the author’s right to a fair trial and found the application to be manifestly ill-founded.76
Correia de Matos was able to file the same claim with the HRC because Portugal had not entered a reservation in article 5(2)(a) of the first OP to the ICCPR. The complaint was, obviously, the same, namely violation of article 14(3)(d).77 The HRC firstly noted that the wording of the provision is clear and should not create any confusion. The Committee stated that if a defendant has to, obligatorily, hire a lawyer, this is something that can undermine the efficiency of his defense since he will have to withstand a person he does not trust or want to cooperate with. The HRC underlined, though, that article 14(3)(d) does not constitute an absolute right. It can be limited in certain instances, namely the accused sometimes may be compelled to hire or to be assigned a lawyer, particularly when facing very serious charges, when the accused persistently objects the proper conduct of the trial or when witnesses have to be protected from distress or intimidation (because the accused would be the one questioning them).78 According to the Committee, however, the Portuguese legislation regarding the right to defend oneself in person was too restrictive as it prohibited an accused from representing himself at all times, even if the defendant was a lawyer. The relevant law did not take into account the seriousness of the crime or the behavior of the defendant. The HRC highlighted that the respondent state had not provided sufficient and objective justification as to why the complainant , in a simple criminal case
74 ECtHR, Correia de Matos v Portugal, 15 November 2001, (Appl.no. 48188/99), Merits, para 10. 75 Ibid, para 12.
76
Ibid, para 15.
77
HRC, Correia de Matos v Portugal, 28 March 2006, (Comm.no. 1123/2002).
like that at hand, would not be able to defend himself effectively, especially being a lawyer.79 Hence, the Committee found a violation of article 14(3)(d) and concluded that Portugal should amend the relevant legislation.
As we can clearly see, the two bodies adopted two diametrically opposed viewpoints on the right to defend oneself in person. Both of them acknowledged that the right is not absolute and can be limited. The HRC, though, gave palpable examples of occasions where the right can be limited, by adding some qualifying criteria (seriousness of the crime, accused’s behaviour). The Court, on the other hand, handed a great deal of leeway to the state, leaving the modalities of the right, whichever they may be, to the domestic authorities. What is worth mentioning, lastly, is that the HRC in its General Comment, issued one year after the Correia de Matos case, observed additionally that ‘any restriction of the wish of the accused persons to defend themselves…must not go beyond what is necessary to uphold the interests of justice’. Therefore, domestic law should avoid any absolute bar against the right to defend oneself in criminal proceedings without the assistance of a counsel.’80
C. The right to be free from torture
The HRC and the Court had to deal with the very same case in Maria Cruz Achabal
Puertas v Spain. This case was about the right to be free from torture and it constitutes one
more case, after the Mann Singh and Correia de Matos ones, where the two organs adopted diametrically opposed approaches. The prohibition of torture, inhuman or degrading treatment is a right which, in general, is approached in the same way by the two (quasi-) judicial bodies. They both accept, inter alia, its absolute character8182 as well as the fact that
79 Ibid, para 7.5.
80
HRC, General Comment 32, para 37.
81
ECtHR, Gäfgen v Germany, 1 June 2010, (Appl.no. 22978/05), para 107.
states have positive obligations to effectively investigate cases of alleged ill-treatment.8384 The ‘effective investigation’ right derives from the fact that states undertake to secure to everyone within their jurisdiction the rights and freedoms contained in the Conventions.85 This general harmony between the two organs when it comes to the prohibition of torture, makes it all the more interesting and essential to view and analyze the circumstances under which the HRC and the Court viewed from a different perspective the exact same case. As to the facts, Maria Cruz was arrested and held in incommunicado detention (indisputable) by the police because she was suspected of being a member of a terrorist group. She was allegedly subjected to torture as she claimed, inter alia, that she was threatened she would not leave the police premises alive, that she would be raped and that her daughter was also in danger of sexual abuse. She also claimed that she was subjected to several beatings, an attempted rape and she was forced to wear a hood most of the time. She provided the domestic courts with several medical reports from a number of different experts of the public sector. All of these reports stated that she suffered from a post-traumatic stress disorder, pointing to her incommunicado detention conditions.86 The domestic criminal courts did not endorse her claims, due to lack of objective information confirming the ill-treatment and closed the case at the examination phase. Hence, the victim subsequently filed a complaint with the ECtHR, alleging violations of article 3 and article 3 in conjunction with article 1, namely the lack of an effective investigation. The claim was examined by a three-judge committee and was found to be manifestly ill-founded. This decision of inadmissibility was never published by the Court. It was merely communicated to the applicant via a letter which was stating that there did not exist ‘any appearance of violation of the rights and freedoms guaranteed by the Convention’.
The HRC, on the other hand, found a violation of article 7 independently and in conjunction with article 2(3), to wit a violation of the victim’s right to be provided with an effective investigation on the basis of her claim.87 The Committee underlined the detailed and consistent description of the events by the author, the many medical convergent
83
ECtHR, Aksoy v Turkey, 18 December 1996, (Appl.no. 21987/93), para 98. See also ECtHR, Akkoc v Turkey, 10 October 2000, (Appl.no. 22947/93 and 22948/93), para 118.
84 HRC, General Comment 20, para 14. 85
Article 1 of the ECHR and Article 2 of the ICCPR.
86
HRC, Maria Cruz Achabal Puertas v Spain, 18 June 2013, (Comm.no. 1945/2010), paras 2.5, 2.6, 2.9.
reports and the fact that the state’s main argument was a based on a medical a report produced by a doctor who had not even examined the victim. This report ‘could not refute’ the aforementioned ones.88 The HRC noted that complaints related to article 7 must be investigated promptly, thoroughly and impartially. The fact that the case of Maria Cruz closed at the examination phase on the domestic level, indicated that the requirements of thoroughness had not been met since the inquiries conducted at the examination stage were not sufficient to examine the facts which, if substantiated, were of extreme severity.89 The HRC also stated that when an alleged victim of torture manifests physical or psychological (mental) damage after being held in detention, a presumption of credibility of the facts as presented by the victim is created and, consequently, the burden of proof is reversed. Namely, the state will have to prove that the condition of the individual is not due to events having taken place during the incommunicado detention. This specific approach was adopted also by the ECtHR in the Aksoy v Turkey case where the applicant suffered from bilateral radial paralysis after having been held in detention.90 The Court noted that when an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the state to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under article 3.91 The Aksoy case makes the inadmissibility decision in Maria Cruz seem even more contradictory, especially given that the evidence were enough to at least necessitate an effective investigation and that the reversal of the burden of proof was, based on Aksoy, an obvious approach, as in both cases the victims were healthy before getting detained. If we add on top of that the fact that the Maria Cruz case was declared manifestly ill-founded without being accompanied by any reasoning or rudimentary argumentation at all, we realize that the divergence between the HRC and the Court in this case is really alarming.
It should be noted that Spain had entered a reservation in article 5(2)(a) of the Optional Protocol, precluding examination of a case by the HRC if it had previously been examined by the Court. The Committee, though, in Maria Cruz adopted a narrow interpretation of the word ‘examined’. For a case to be regarded as having been already examined, the
88 Ibid, para 8.4.
89
Ibid, para 8.6.
90
ECtHR, Aksoy v Turkey, 18 December 1996, (Appl.no. 21987/93).
Committee stated, the inadmissibility decision of this case shall have been based on reasons that include a certain consideration of the merits and not solely on procedural grounds.92 The limited reasoning of the Maria Cruz inadmissibility decision, according to the HRC, indicated that the examination of the case by the Court did not include sufficient consideration of the merits and, hence, the case was declared admissible by the Committee. It is worth mentioning that the HRC had never before formulated any requirements as to the quality or extensiveness of the judicial reasoning in an ECtHR decision93 and this was exactly what was pointed out by six members of the Committee in their dissenting opinion. It is not clear why the HRC adopted such a narrow interpretation of the word ‘examined’, thus undermining Spain’s reservation. It could be due to the serious nature of the alleged violation (torture) or because of the lack of even rudimentary argumentation by the Court. This second scenario seems more improbable than the first, though, since the HRC in the past did declare inadmissible as ‘previously examined’ a case which the Court had already declared inadmissible because it did not disclose ‘any appearance of a violation of the rights and freedoms set out in the Convention’.94 These are the exact words the Court used in the Maria Cruz inadmissibility decision as well. But this time the HRC held, as we noticed, a totally different stance by regarding these same words as an indication of the non-examination of the case. What seems to be clear, finally, is that the HRC, in the admissibility part of its decision, not only criticized the Court for the limited reasoning included in the letter sent to Maria Cruz, but also implied that the ECtHR conducted a ‘flawed assessment’ of the case, given the relatively obvious violation of the investigation obligations, regarding torture, by Spain.95
92
HRC, Maria Cruz Achabal Puertas v Spain, 18 June 2013, (Comm.no. 1945/2010), para 7.3.
93 Janneke Gerards, Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of
Reasoning, H.R.L.R. (2014), p 4.
94
HRC, Rivera Fernandez v Spain, 22 May 2005, (Comm.no. 1396/2005), para 6.2.
95
Janneke Gerards, Inadmissibility Decisions of the European Court of Human Rights: A Critique of the Lack of
IV. What does the diverging case-law indicate in terms of the necessity for
reconciliation?
In the previous chapter a carefully selected line of jurisprudence was presented and analyzed. It was of paramount importance to look into the details of the argumentation by both states and complainants, as well as the reasoning of the two (quasi-) judicial bodies. This ‘zooming in’ allowed us, inter alia, to confirm that the cases were based on identical general contexts and, more specifically, on similar factual scenarios. This is essential because the more common starting points two cases have, the more accurate the conclusions of a possible divergence between those two cases will be. The breakdown of the two bodies’ case-law will be utilized in this section as a compass in answering the basic question that this essay addresses, namely to what extent there is a need to reconcile the same-subject rights contained in the ICCPR and the ECHR. The conclusions will be drawn by virtue of common denominators which were noticed in the jurisprudence. Hence, this chapter will address the case-law in an overall way, that is by pumping common characteristics from all the different diverging cases and not merely on a pair-by-pair basis. Accordingly, the conclusions arising from the jurisprudence will be used and presented on the basis of three different sub-sections: a) the margin of appreciation- the manifestly ill-founded condition of admissibility, b) the existence of a divergence pattern (forum externum) and c) the double examination of the same case.
What needs to be strongly noted here is that the aim of this chapter, of the above-analyzed jurisprudence and of this whole essay overall, is not to point the finger at any of the two bodies or indicate that one of the two does a better job than the other. That may arise as a side-point incidentally, but the main goal is to ascertain whether this diverging jurisprudence indicates a neccessity for reconciliation.
