An interview (conducted by Graham Butler: University of Copenhagen) with former (‘Icelandic’*, Strasbourg) Judge David Thór Björgvinsson has just been published in Utrecht Journal of International and European Law. It is available here (thanks to Jörg Polakiewicz for ‘tweeting’ this).
The former Judge (now Professor) Thór Björgvinsson was a Strasbourg Judge over the years 2004-2013. Much of his interview concerns the Opinion 2/13 from the Court of Justice of the European Union on the Union’s accession to the European Convention on Human Rights. What is said there is fascinating, whilst some questions and answers at the end of the interview may be of more direct interest to readers of this blog given the critique offered of the Court as an institution that is, he maintains, less assertive than it has been in the past, due to the pressure exerted upon it by States (above all the UK),
Former Judge Thór Björgvinsson makes some interesting comments about the influence of some of the most senior members of the Court Registry on Strasbourg judicial decision-making (some ‘command huge influence on judicial decision-making, and in many instances, run the whole show’, p 109). He balances this comment (it is ‘not always a bad thing’) referring to the ‘need to have some form of consistency and stability’ at the Court. This comment presumably great relevance given the potential for high turnovers in the personnel who make up the Strasbourg judiciary. By my count, nearly half of the Court is to be (or will have been) replaced over the next few years (see here [scroll down]).
Of most interest (for me at least) were former Judge Thór Björgvinsson’s comments on how, over the decade he was at Strasbourg, he perceived a change of approach on the part of the Court, in reaction to the pressure that was placed upon, in particular from the UK.
Reference is made to the Court ‘changing its judicial policy from assertively protecting human rights to becoming more timid’ (p 109). To be clear, this did not appear to be a formal policy. The former Judge had in mind cases such as SAS v France (French ban on full face veils in public) and Scoppola No 3 v Italy (Italian prisoner voting cases perceived to be a retreat from Hirst [see, indeed, Judge Thór Björgvinsson separate opinion in that case], these reflecting ‘a slight shift from the more assertive approach as the Court has begun to more often rely on the concepts of margin of appreciation and subsidiarity’.
The aforementioned cases, plus some unnamed others were ones when, in the interviewee’s opinion ‘the Court [was] very reluctant to step in and take a clear standing [sic?] on politically sensitive and controversial issues’ – and which amounted, it was claimed, to ‘a change in judicial policy’.
Former Judge Thór Björgvinsson then adds that he was not necessarily criticising the Court on this. He referred to the need to look at ‘the historical perspective’, by which he meant the need for ‘institutions [to] adapt to the political environment in which they are operating’. Here he commented:
You may criticise this and say it is politics, and the Court should be more assertive, but on the other hand, it is about the survival of an institution. If you believe the institution in an historical context is doing more good than bad, and it is actually contributing to the protection of human rights, then you will take the view that it is better to have it, rather than having all the Member States, particularly larger ones, leaving the system because they cannot live with it.
With respect to this pressure, he then adds:
It is not necessarily conscious in the minds of judges, but this is a trend that I believe I saw there. Maybe I am not reading it correctly, but in my opinion, the Court is being less assertive than it has been in the past.
How else might one view the development which former Judge Thór Björgvinsson identifies? His fear – which he has articulated more fully in a working paper available here – is that the Court has, over the years, ‘built up a ‘moral capital’ in the minds of the public in Europe’, but that this is now at risk by what he sees as the Court’s current appeasement approach.
Temporary appeasement or a new ‘age of subsidiarity’?
Of course, former Judge Thór Björgvinsson is not the first person to suggest that there has been a shift of approach on the Court’s part in recent years, that it may be in an appeasement mode, and that this may be reflected in certain judgments that are perceived to be more conservative and less intrusive than they might otherwise have been.
What is of real interest, however, is the frank comments made by someone who was an insider for nearly a decade prior to 2013. It is also noteworthy that, if I have understood the former Judge’s views correctly, he is of the view that the less assertive stance being adopted is not as a result of a formal or even necessarily conscious policy on the part of the Court, but that it is almost a sub-conscious reaction to the recent climate of hostility directed at it. That might suggest that the Court is in a temporary phase of appeasement (if that is what it actually is) – ‘temporary’, i.e. assuming a time ahead when the pressure will lift on the Court, leaving it with a greater latitude to rule on cases with less fear of the consequences (in terms of hostile State reactions).
In contrast to this, it is worth adding that another Strasbourg Judge – Judge Spano (who joined the Court in 2013) – appears to have suggested that certain of the rulings which could be seen as marking a less assertive Court are explained by its better approach to, and greater articulation by it of, the principle of subsidiarity and the margin of appreciation (cf former Judge Thór Björgvinsson’s comments about greater reliance on ‘margin of appreciation and subsidiarity’). To that extent he suggests that the Court could (deliberate emphasis) be embarking on a new ‘age of subsidiarity’. Simply put (for it is much more complex than this) the position here is that the Court will pay due deference to the positions adopted by national authorities provided that they have fully embraced Convention standards as part of the preceding, domestic consideration of the case or matter.
* the original posting stated, in error, that former Judge Thór Björgvinsson was the ‘Danish’ judge on the Court. In fact, he was the ‘Icelandic’ judge – thank you to Graham Butler for pointing this out.
The full interview with former Judge Thór Björgvinsson is well worth reading, as its former Judge Thór Björgvinsson’s working paper. Further details may be found at iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts.
The formal citation for the article referred to above is: Butler, G. (2015). A Political Decision Disguised as Legal Argument? Opinion 2/13 and European Union Accession to the European Convention on Human Rights. Utrecht Journal of International and European Law, 31(81), 104 – 111).