An institution in crisis
The European Court of Human Rights (ECtHR) is a body of the Council of Europe that is tasked with ruling on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights (ECHR). Since 1998 it has sat as a full-time court and individuals can apply to it directly.
Cases can be brought to the Court in one of two ways: by one Member State against another Member State or by an individual or group of individuals against a Member State. Three conditions exist in order to meet the admissibility requirements of the Court: (a) all domestic remedies must have been exhausted; (b) victim status must be attached to the applicant; (c) the case must involve an article or articles of the ECHR. Furthermore, there is a six-month limit to apply to the Court that begins after a decision of the highest competent national court or authority has been given.
The Court is composed of five sections, each with a President and Vice-President. The overall Court, which is composed of one judge from each of the 47 Member States, also has a President. The Court can sit as a Grand Chamber of 17 judges, which can hear a case on appeal from one of the sections or if one of the sections relinquishes jurisdiction to the Grand Chamber. Sometimes a chamber will relinquish jurisdiction if the case involves novelty, complexity, lack of clarity among the various sections, or if the case is of a foundational nature to the jurisprudence of the Court.
Upon the finding of a violation of the ECHR, the respondent State must execute the judgment under the supervisory authority of Committee of Ministers. The Court has no equitable powers and cannot require specific performance of an action. Instead, its primary punitive tool is the use of monetary fines for pecuniary and non-pecuniary damages and costs.
NGOs can engage with the Court either through a third party intervention or by submitting a complaint to the Court. Article 36(2) of the ECHR states: “The President of the Court may, in the interest of the proper administration of justice, invite . . . any person concerned who is not the applicant to submit written comments or take part in hearings.” For the purposes of lodging an initial complaint to the Court, there is no formal requirement to be represented by a lawyer. The Court has produced an application pack which can be found on its website and must be followed in order to meet the formal admissibility requirements.
The Court makes decisions on a number of important areas, and in recent years there has been proliferation of cases on issues such as abortion, euthanasia, gay and transgender rights, and religious freedom. Many of these decisions reflect a strong ambition of the Court to influence the policies of Member States and the moral attitudes of the wider population – but they are often poorly reasoned and can hardly be viewed as correct and unbiased interpretations of the ECHR. This has led to severe criticism of the Court’s “judicial activism”, to the point that some State Parties to the Convention are now overtly contemplating the possibility of revoking their adherence to it. Judicial activism means that a supreme judicial instance holds society hostage: it speculates on the presumption that, while the jurisprudence may be clearly mistaken or even deliberately misguided, the price for disobeying it would be to call into question the entire system – a price that many stakeholders may find too high. With regard to the ECtHR, however, the situation appears to be approaching a tipping point: while European governments generally find it desirable that the ECHR be monitored by an independent and international tribunal, the continued existence of the ECtHR is nevertheless not an indespensable necessity for them. Arguably, the Court has recently done more to undermine the Convention than to protect it.
We at AGENDA FOR EUROPE believe that the ECtHR is in a deep crisis today, and that it must either undergo a thorough reform or be abolished. On these pages, we will therefore expose the reasons why we hold this opinion, and make proposals for reform. At the same time, we will provide relevant information on the Court’s case-law in relevant domains and, if need be, offer our comments on the Court’s jurisprudence.
Links to relevant information on the ECtHR are:
• European Convention on Human Rights and Fundamental Freedoms (ECHR)
• ECtHR website
• HUDOC Database (with the Court’s entire case-law)
Intellectual aberrations frequently encountered in ECtHR judgments
“Living Instrument” Doctrine
The “Living Instrument” Doctrine is the ECtHR’s main tool in making the actual content of the Convention irrelevant and replacing it with rules of the Court’s own making. It made its first appearance in the case of Tyrer v. the UK, in which the Court found that a Manx statute providing for the birching of juvenile offenders (rather than sending them to jail, or imposing financial sanctions) was a violation of Article 3 of the Convention (prohibition of inhuman and degrading treatment). As the Court pointed out, “the Convention is a living instrument which … must be interpreted in the light of present-day conditions.”
This formula has since then been used in a great number of judgments. It is, so to say, the solution of last resort whenever the Court wants to pass a judgment that clearly has no basis in the Convention’s wording, or that could easily be demonstrated to stand at odds with the intentions of the State parties at the time when the Convention was drafted and adopted.
The “Living Instrument” Doctrine is a clear violation of the principles that are generally applicable in the interpretation of international agreements, as codified in Articles 31 – 33 of the Vienna Convention on the Law of Treaties (VCLT).
Another argument frequently used by the Court is to use “comparative law” in order to identify legislative trends, and then say that a trend followed in a majority of countries becomes a standard that all should adhere to. This type of argument discards the principle that in international treaty law states can only be held to honour obligations they have actually signed up to.
A typical example is found in Schalk and Kopf v. Austria, a decision in which the Court (rightly) found that the Convention does not include an obligation for State Parties to legislate for same-sex “marriages”. But then it went on to deal with the question, subsidiarily raised by the applicants, whether there was not an obligation to legally recognize same-sex partnerships at least through some other legal status such as “civil partnerships”. In discussing this question, the Court stated (at § 105) that “there is an emerging European consensus towards legal recognition of same-sex couples. Moreover, this tendency has developed rapidly over the past decade. Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes.”
In other words, the Court is ready to speak of “an emerging consensus” at a time when States providing for the legal recognition of same-sex couples are still a minority. Once there is a majority of States recognizing same-sex “civil partnerships”, it will say that the margin of appreciation for the remaining States is narrowing down. (It is, by the way, revealing to see that in the Court’s opinion that margin of appreciation seems to apply only to “the timing of the introduction of legislative changes”, not to the question whether or not such changes should at all be made!)
While comparative law studies may in principle be helpful to understand how international law is interpreted by different State parties, the trend-searching technique devised by the ECtHR is not a recognised method of interpreting laws; instead, it is rather similar to opinion polling. What makes it particularly insidious is its apparent ideological lop-sidedness. As long as States permitting same-sex partnerships (or abortion, or euthanasia, or surrogacy, etc. …) are in a minority, the conclusion is not that they align to the majority; instead, they are heralded as a courageous avant-garde. By contrast, once those States are the majority, the Court is eager to impose their policies on all the remaining States. Although it is never openly spelt out, this reasoning appears to be underpinned by a “progressivist” ideology according which history can only be moving into one direction: homosexuality, abortion, euthanasia, etc. In other words, “progress” means more individual choices, and less qualms about the inherent morality of those choices.
“Circiterisms” and “Negative Definitions”
Under “circiterism” (derived from Latin “circiter”, i.e., “more or less”, “roughly”, “around”) we understand deliberate imprecisions where the use of precise language would not be helpful in reaching the conclusions the Court apparently wants to reach: e.g. the statement that a term “is a broad concept”, “is not clear-cut”, “does not lend itself to a precise definition”, or the use of a hypothesizing rather than of an affirming mode (i.e., something “may be”, instead of “is”, the case).
By “negative definition” we mean definitions that – explaining what their object is not rather than what it is – are not really definitions. Instead of defining the meaning of a term (from Latin “finis”, i.e. “limit”), they expand it. This expansion ultimately leads to the dissolution of what is being so “defined”. The dissolution of legal terminology undermines the law, but it aggrandizes the power of those tasked with the interpretation of the laws (in this case: the judges of the ECtHR) because, not being anymore bound by legal texts that have a clear meaning, they can substitute them with their own concepts.
Circiterism and negative definition are techniques frequently used by the ECtHR. One crucial example is the definition of “private life” in Article 8 of the ECHR: it is “a broad concept which does not lend itself to exhaustive definition, but which may include…. (insert whatever the Court, at the given occasion, wants to have included)“. Indeed, the Court’s case-law contains a large quantity of statements on what “private life” encompasses, includes, enshrines, comprises, contains, may involve, etc., but never explains what it actually is. Except, of course, that it is “a broad concept”. It is further broadened in Evans v. the United Kingdom, where the Court asserts that States’ obligations under Article 8 “may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves.” And obviously, “the boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition.”
Quite undeniably, the technique is subservient to the radically “progressivist” ideology identified above. This is easily understood when considering the term “family life” in Article 8 of the ECHR. In a series of judgments, all the criteria that according to common sense might be used to determine the meaning of “family life” have one after the other been discarded: the determining criterion is neither marriage, nor parent-child-relationship, nor consanguinity, nor durability, nor co-habitation under the same roof. But what, then, is the criterion to define “family life”? The Court has no such criterion – but it opines that “family life” may be used to characterize the relationship between two homosexual partners, or between a woman and her lesbian friend’s son.
Framing the issue: asked and un-asked questions
One of the least conspicuous, yet perhaps the most efficient, technique to influence the outcome of the case is to frame the debate in a way that will from the outset prevent it from taking an unwelcome direction. As an old saying goes: don’t ask the question if you don’t want to hear the answer.
A shining example is the case of Orlandi and others v. Italy, a case based on no less than six separate applications, each of them filed by same-sex couples made up of two Italian citizens who have moved abroad to contract same-sex “marriages” in countries where that was possible (i.e., Canada, the US, and and the Netherlands), but whose subsequent requests to get those “marriages” registered in Italy were turned down by the competent Italian authorities. The apparent purpose of the complaint is to force the legal recognition of same-sex relationships in Italy.
The complainants claim that they are being discriminated against, in the enjoyment of their rights protected by the Convention, on the basis of their sexual orientation. They complain specifically about the authorities’ refusal to register their marriage contracted abroad and more generally about the impossibility of obtaining recognition of their relationship, in so far as the Italian legal framework does not allow for marriage between persons of the same sex, nor for any other type of union which could give them legal recognition. They invoke Articles 8, 12 and 14.
As foreseen under its rules of procedure, the ECtHR has submitted a number of questions to the parties:
“1. Was the interference with the applicants’ right to respect for their private and family life, namely the refusal to register their marriage contracted abroad, in accordance with the law and necessary in terms of Article 8 § 2?
2. Has there been a violation of the applicants’ right to respect for their private and family life contrary to Article 8 of the Convention, in particular in so far as they had no other possibility to have their relationship recognised by law?
3. In what specific ways are the applicants disadvantaged by the lack of any legal recognition of their relationship?
4. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8 and/or 12 of the Convention, in respect of their inability to (i) register their marriage and (ii) enter into any other type of civil union recognising their relationship in Italy?”
As one can easily see, the decisive question, i.e. whether the non-availability of a legal statute for same-sex relationships constitutes an interference with the applicant’s right to respect for their private and family life, is not asked. The Court simply pre-supposes that such an interference has taken place, and jumps to the next question: whether that interference was in accordance with the law, and necessary.
But very obviously, it is the un-asked question that might be the decisive one. Marriage and, if available, “civil partnership” are public institutions, because they would confer publicity and public recognition to the applicants’ relationship. What the applicants are seeking is therefore not respect for their privacy, but a public status. This case is not about the applicants’ right (which no one contests) to keep their homosexual inclination and behaviour private and secret – but it is themselves who want to make both public. The Court’s framing of the discussion appears to be thus based on a very fundamental mis-interpretation of the concept of “privacy”. Asking the question whether there was an interference with that right might have helped to clarify this error – but that appears to be precisely the reason why that question remains un-asked.
(A similar observation could be made with regard to the term “family life”: the Court’s assumption that a homosexual relationship constitutes “family life” is, to put it cautiously, questionable…)
Extravagant interpretation of Article 8 of the Convention
This leads directly on to the next observation. To a very large extent, the Court’s most controversial rulings (i.e. those that have drawn the most criticism with regard to the underlying attitude of judicial activism) can be traced back to its interpretation of only one or two provisions of the Convention: Articles 8 and 14.
Article 8 of the ECHR protects the right to respect of private and family life.
The original purpose of that provision was to prevent States from spying and prying on their citizens, i.e. from wiretapping their homes, controlling their correspondence or telecommunication, etc. This right is not absolute, but it allows exceptions and limitation only for duly justified reasons, for example for the purposes of investigation where there is a well-founded suspicion of crime.
Article 8 ECHR also prevents States from adopting laws interfering with citizens’ private lives, except where such interference can be shown to be necessary.
In view of recent revelations according which US and other secret services exercise nearly total surveillance of all telecommunications etc., one has indeed reason to wonder whether the right to respect for privacy is sufficiently protected. However, one does not quite see how the ECtHR is actually contributing to a better protection of that right.
At the same time, the Courts interpretation of Article 8 has recently become extremely expansive. But that expansion goes into a direction that is not at all in line with the original purpose of that provision. With regard to the concept of “private life”, the Court, using deliberately imprecise language, has developed a formula according which, at the Court’s own discretion, it may, or may not, include whatever the Court wants, or does not want, to include. In this way, Article 8 has become the not-so-secret backdoor through which the most obviously immoral or socially nocive behaviours and lifestyles can suddenly be interpreted as “an aspect of private life” that deserve “respect” and, hence, the status of a “fundamental right”. The focus of Article 8 has thus been shifted from protection of privacy to the protection of intrinsically immoral lifestyle choices. Practices such as abortion, euthanasia, or sodomy, which at the time when the Convention was adopted were punishable crimes in nearly all Convention States, could in this way suddenly de facto emerge as private lifestyle choices that State legislators had no right to call into question, or, in a subsequent step, even as new “rights” the exercise of which States have to guarantee. A similar development can be observed with regard to highly sensitive bioethical issues (such as the use of in-vitro fertilization, surrogacy motherhood, etc.), which the Court, whilst carefully avoiding to make any attempt at discussing their ethical implications, prefers to view as mere emanations of “private life”.
Similar developments have also been observed with regard to the Court’s interpretation of the term “family life”.
The evident flaw in the Court’s interpretation of Article 8 is its apparent arbitrariness. Given that, according to the Court, the term “private life” has no precise meaning, everything can be “private life”, and hence be protected under Article 8. Given that “family life” has no precise meaning, every any group of two or more persons can claim to have a “family life”. Dissolving the meaning of those concepts means to aggrandize the power of the Court, allowing it to grant or to rescind fundamental rights at its own discretion. And it is impossible not to notice that the Court has consistently put this self-given power at the service of a radically liberal, if not nihilistic, social agenda: “privacy”, in this sense, simply means that States can be prevented from prohibiting objectively immoral behaviour.
Extravagant Interpretation of Article 14 of the Convention
Article 14 of the ECHR provides: “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.”
It follows from this wording that Article 14 has no existence of its own, but is contingent upon other provisions of the Convention. It does not establish a general “right to equality”, but only provides that the fundamental rights set out in the Convention should be enjoyed without discrimination. Thus, to establish a violation of Article 14 an applicant must demonstrate (1) that he has been the victim of a violation of another convention right, and (2) that this violation was attributable to discrimination.
With regard to the ECtHR’s increasingly expansive interpretation of Article 14, four observations must be made:
Firstly, although it does not figure among the possible grounds for discrimination quoted by Article 14, “sexual orientation” is nowadays the ground most frequently cited by the Court when it makes reference to that Article. This is not per se illegal, given that the enumeration in Article 14 is indicative, not exhaustive. However, given that the Article quotes 10 other grounds rather than “sexual orientation”, it is evident that “sexual orientation” cannot be the most important of all such grounds. The Court’s affirmation, first made in S.L v. Austria (at § 37) and then repeated at many subsequent decisions, that “differences based on sexual orientation require particularly serious reasons by way of justification” appears thus to have no foundation at all. If anything, such a statement could have been made with regard to any of the grounds that are actually quoted by Article 14, but not with regard to this one.
Secondly, the Court shows an increasing readiness to treat Article 14, in particular with regard to alleged discriminations on the grounds of “sexual orientation”, as a stand-alone provision that establishes a general “right to equal treatment”, irrespective of whether in conjunction with any of the fundamental rights set out in the Convention or in any other context. This expansive interpretation is in clear violation of the Convention.
The first time the Court interpreted Article 14 in this way was in 1968, in a case relating to the laws on the use of languages in education in Belgium. Noteworthy is also the decision in the case National Union of Belgian Police v. Belgium (1975), in particular in view of the dissenting opinion issued by judge Sir Gerald Fitzmaurice (in particular § 20 thereof). With regard to more recent ECtHR case law, particularly telling examples are the decisions Karner v. Austria (where the Court found discriminatory a decision that granted to unmarried different-ex cohabitants, but not to homosexuals, the right to continue a deceased “partner’s” rental of a flat), or the cases of E.B. v. France and X. and Others v. Austria, where the Court found that homosexuals had been discriminated with regard to the possibility of adopting children. Neither the possibility to continue a rental contract concluded by one’s deceased spouse or unmarried partner, nor the possibility of adopting children are “fundamental rights” specifically protected by the ECHR.
Thirdly, it is noteworthy that the Court often is rather careless in ascertaining whether a difference in treatment is really contingent on the “ground of discrimination” it quotes. As example, we may again refer to X. and Others v. Austria, where the Court wrongly asserted that the applicant was prevented from adopting her same-sex partner’s child “because of her sexual orientation”, when in actual fact the problem was that as a woman she could not become the substitute for the child’s biological father. The criterion was thus not her “sexual orientation”, but her sex, and there clearly was no discrimination in this regard, given that this provision applied in exactly the same way to men and to women. The case thus evidences in a broader sense the Courts remarkable inability or unwillingness to carefully check the relevant facts whenever allegations of “discrimination” offer an opportunity to advance the gay rights agenda.
Finally, it is remarkable that the most frequent use of Article 14 is nowadays in conjunction with Article 8 (see precedent section). The combination of these two Articles is truly nefarious. Using Article 14 in conjunction with a Convention right that (as is the case with Article 8) can be subject to the most extravagant interpretations, means that Article 14 can itself be used extravagantly, i.e. transformed into a powerful tool to find “discriminations” wherever the Court wants to find them. The arbitrary choice of alleged discrimination criteria further expands the Court’s discretion: whatever comparison one draws, the outcome will largely depend on the tertium comparationis one chooses. Once again, the Court’s interpretation of the Convention is not loyal to the text that is being interpreted, but subservient to the Court’s own institutional interests: where the wording of the law can be stretched at will, the judge interpreting it becomes all-powerful.
The quest for “consistency” in Member States’ legislation
The Court’s expansive interpretation of Article 14 reached a new climax recently, when it began developing a completely new doctrine: the laws of a State Party must be consistent in and between themselves. Any lack of consistency between two legal provisions, irrespective of whether or not they have to do with one of the rights and freedoms set forth in the Convention, can be a discrimination – and therefore, given the Court’s very expansive interpretation of Article 14, a “human rights violation”.
One example where this new tool was used is the decision Costa and Pavan v. Italy, a case used by the Court to undermine Italy’s rather restrictive regulation of medically assisted reproduction. In that case, the applicants, a couple with a genetic pre-disposition for a particular disease wanted to have a child that was free from that pre-disposition: they therefore wanted a medically assisted reproduction procedure in which several embryos would be created in vitro and then genetically tested in order to select one without the defect gene.
Quite obviously, the Convention does not guarantee a right to have access to such a procedure. Nor does it guarantee a right to abortion, not even in cases where the foetus is found to suffer from a genetic defect. The Court, obviously, was aware of that. Nevertheless it argued that, because Italian law allowed for abortion in such cases, it was inconsistent for the Italian legislator to have prohibited the use of pre-implantation diagnostics. In other words, the violation found by the Court did not relate to any right set forth in the Convention, but simple to the alleged inconsistency of two laws that were outside the Convention’s scope.
As with the other “interpretive techniques” discussed here, it can be observed that the “consistency argument” is consistently used to pressure State Parties to adopt more permissive laws. Due to its ambivalence, it might as well be used in the opposite sense: for example, in Costa and Pavan v. Italy the inconsistency could have been removed by prohibiting so-called “therapeutic” abortion rather than by permitting pre-implementation diagnostics. But this is of course not how the ECtHR uses it: the Court’s choice of interpretive tools clearly follows a political agenda.
Self-chosen ignorance (“Playing stupid”)
When nothing else helps, “playing stupid” does. When an insight is not politically desirable, just pretend you do not have the capacity to reach it.
This – not very subtle – technique of self-delusion is best illustrated by Vo v. France, a decision concerning an unborn child’s entitlement to protection of its right to life under Article 2 of the Convention. The case was not about abortion, but about a woman who lost a child during pregnancy due to an extreme case of medical malpractice.
It was obvious that in this case none of the usual pretexts to justify abortion could be used, given that the applicant had not wanted an abortion. Thus the decisive and seemingly unavoidable question was: does an unborn child have a right to life under Article 2 of the Convention?
The Court’s answer to this question (at §§ 84, 85) is truly amazing:
“At European level, the Court observes that there is no consensus on the nature and status of the embryo and/or foetus … At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race.
Having regard to the foregoing, the Court is convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention (“personne” in the French text).”
First and foremost, one notes the Court’s apparent lack of interest in knowing what (or who) the human embryo really is. The point of reference is not the available scientific insight, but the “consensus” (or lack of such) between States. Even so, the Court comes to the conclusion that the embryo and/or foetus belongs to the human race. (Obviously, it is neither a frog, nor an amoeba… it is human.)
But that insight was apparently not going to lead to the outcome that the Court found politically desirable: if an unborn child is a rights bearer, then all questions related to abortion or assisted procreation would have to be answered differently than the Court intends to answer them. Suddenly, therefore, there is a radical shift: the criterion is no longer whether someone is a human being, but whether he is a “person”.
This abrupt transformation of “human rights” into “person rights” is in and by itself questionable. Yet if one were to accept it, then one would reasonably expect the Court, which has quite arbitrarily decided “personhood” to be the decisive criterion, to show at least some interest in finding out who is, and who is not, a “person”. But no, the Court is not interested. While it is certainly true that this question would be difficult to answer (certainly more difficult than determining who is a human being…), it is truly astonishing to read that answering is not desirable.
We are thus facing a truly paradox situation. If it were true that the right to life under Article 2 of the ECHR is only enjoyed by “persons” (rather than by all human beings), then the same must be true of all other Convention rights. The question who is a “person” would therefore be the all-decisive one for all human rights. Yet here we have a Human Rights Court, the supreme instance to interpret the Convention, finding it “not desirable” to determine the scope of the Rights it is called to protect. With this decision, the Court has openly and publicly abdicated its role.
Picking and Choosing
One of the structural problems of the ECtHR is its overwhelming workload. This is due to the fact that, following the adoption of the 11th Protocol to the Convention in 1998, the Court can now be directly appealed to by any citizen, provided that remedies available at national level have been exhausted. Before 1998, incoming applications were filtered by the European Commission of Human Rights, which, if an application was considered well-founded, sought to mediate between the applicant and the respondent State Party. As a consequence, only very few cases actually reached the ECtHR, and it was not the Court that selected them.
Following the implementation of the 11th Protocol, this situation has dramatically changed. The Court now receives around 65.000 individual applications every year, a workload the Court’s 47 judges cannot reasonably be expected to deal with in an appropriate manner. There is an accumulated backlog of several hundreds of thousands of cases to be dealt with.
How does the Court handle this situation? It summarily dismisses more than 95% of the incoming complaints. Applicants receive a curt letter in which they are informed that one of the 47 judges has looked at their complaint and decided that it was unfounded. A reasoning is not provided; instead, the applicant is informed that a remedy against this decision is not available, and that the file will be physically destroyed (which means that any subsequent verification whether that summary dismissal was justified, e.g. by legal scholars or by journalists, becomes impossible). And that is all. In practice, these decisions are actually prepared by legal clerks, and the judges only rubber-stamp them.
One has every reason to believe that among the cases that are dealt with in this way, there might be many where in fact human rights may have been seriously violated. The ECtHR’s pretension to appropriately handle all incoming complaints appears thus far away from reality.
How, then, does the Court select the applications it deems worthy of a more careful assessment? Although it is very difficult to assess this from the outside, it appears fairly obvious that the decisive criterion for a case to be heard by the Court is its potential to serve as a basis for a “landmark judgment” with the greatest possible impact.
Thus, it is perfectly possible that cases involving everyday police violence or violations of due process are not heard by the Court – not because they do not involve violations of the Convention, but simply because they are considered uninteresting. For such cases to actually reach the Court, the human rights violation suffered by the applicant must have been particularly severe (and it certainly helps when it has caught some media attention).
Such selectivity in dealing with incoming complaints is not in itself inadmissible for a supreme judicial instance with a limited workload capacity. It becomes, however, inadmissible when the selection is made with a clear political bias, i.e. with the intention of advancing and promoting a particular agenda for which the Court has received no mandate. In this context, it is conspicuous how the ECtHR manages to pick and choose from its pile of incoming applications precisely the cases that might be used to create new rights for homosexuals, or to fabricate a right to abortion, or to facilitate access to medically assisted procreation, etc.
Among the many examples that could be mentioned in this regard, let us just cite the following:
Schalk and Kopf v. Austria: why was it necessary to even hear this application in which a same-sex couple claimed to have been deprived of its “right to marriage”, when it was clear that the authors of the Convention in 1950 could not possibly have intended to assert a right for persons of the same sex to “marry” each other? In the end, the case provided the Court with an occasion to proffer two dubious obiter dicta that, although not based on convincing arguments, have subsequently been used to introduce the idea that sometime in the future there might be an obligation to recognize same-sex relationships under another form than marriage, and to expand the term “family life” to cover the relationship between homosexuals.
A., B., and C., v. Ireland: this case was pivotal in pressuring the Republic of Ireland to adopt a law legalizing abortion in certain cases. Remarkably, this case was fast-tracked directly to a Grand Chamber of the ECtHR, although it had never been heard by any Irish law court, and, consequent to this, the underlying facts had never been verified by any judge. The three applicants remained anonymous. It could thus be that this case was based upon an entirely fabricated statement of facts, and that its real purpose was to provide the ECtHR with a pretext for an abstract critique of the Irish legislation, i.e. unrelated to any concrete facts.
X. and Others against Austria: here again, a rather spurious application was fast-tracked to a Grand Chamber of the ECtHR. This time, the case had been dealt with at national level – yet again, the case was not based on any specific facts, but simply on the applicant’s dissatisfaction with the laws in force at the time. The ECtHR’s decision, although manifestly ill-founded, was decisive in pressuring Austria to legally provide for a possibility to create a fictitious “homosexual parenthood”. The fact that an ECtHR decision had to be complied with forestalled a reasoned debate on the subject matter, in which opponents of the controversial matter might have been expected to prevail.
As it clearly appears from these and other examples, the ECtHR’s approach to selecting the cases it hears is mainly tactical. The Court is not at the service of citizens who have suffered real and concrete human rights violations, but at the service of a highly controversial social agenda that, not being shared by many, would be difficult to implement through the use of normal democratic procedures.