Credits: Antenor Hallo de Wolf
An Interview with Piers Gardner on bringing an application before the European Court of Human Rights
By Katerina Lefkidou and Samuel Grasselli
As a part of our course, International Human Rights Law in Practice for our LL.M. International Human Rights Law at the University of Groningen, we had the opportunity to interview Piers Gardner on the specifics of the application process to the ECtHR.
Mr Piers Gardner is a human rights lawyer with deep knowledge of the European Convention on Human Rights (hereinafter the “ECHR”/“Convention”) and has handled many cases in the European Court of Human Rights (referred to as the “ECtHR” or “Court”) of great significance, such as Soering v the United Kingdom, Yukos Oil Company v Russia and many others. With his vast experience and no shortage of humor, we were fortunate to gain his insights.
The following passage is an excerpt of a longer interview.
Mr Gardner, thank you for joining us. Could you briefly outline the key responsibilities and tasks that come with serving as the Chair of the Permanent Delegation to the ECtHR for the Council of Bars and Law Societies of Europe, highlighting those you consider most significant and worthy of mention connected to the ECtHR?
It would be sad if young lawyers, as many practitioners do not, never heard of the Council of Bars and Law Societies of Europe (CCBE). The CCBE is an umbrella organization of bar associations and law societies of the Member States of essentially the EU plus some “hangers-on.” I am a determined “hanger-on.” I was involved with the CCBE networking prior to Brexit, and post-Brexit the UK bars and law societies negotiated to be able to continue to be involved with the CCBE. There are also observer members to the CCBE, who are all the Member States of the Council of Europe with the exception of Monaco. The CCBE is therefore a practitioners’ organization and it has various committees. One of those committees, probably the smallest, or at least the most specialized, is the so-called “Permanent Delegation to the European Court of Human Rights”. At the moment, amongst other things, the committee is dealing with a question, which we have raised to the Court, about having more young practitioners seconded to the Court’s registry, for a comparatively short period, 9 to 12 months. These lawyers would already know about their own national systems, which would be helpful to the Court while spending useful and interesting time there. You may say, “well sure, there are already some similar options, such as traineeships”, but they are either too short, or too long. That is currently the initiative we are working on with the Court, having persuaded them, that this is an idea worth exploring.
From your experience with the practice of the ECtHR, what is your take on the admissibility criteria laid down by the ECHR?
You all know that they have recently changed. There used to be a six-month period to make an application into Strasbourg, while now it is only a four-month period. The time limit starts running from the time the applicants have exhausted the domestic remedies. This means two things, different things, and it is very important to recognize the difference: one, applicants must have tried every available national appeal. It may or may not lead to the highest court and in some cases it is not possible to go directly to the highest court. In my country, for example, you have to ask permission to get an application to the Supreme Court of the United Kingdom and the Court may refuse permission. Therefore, in that case, the decision of the Court of Appeal will be the final decision. Hence, you must have tried all the remedies available to the national system, but that’s only half the rule.
The other half of the rule is that you must have used the arguments you are going to make in Strasbourg. And that is a really serious obstacle. In the Netherlands, there is a monist system, a very serious court structure and a great deal of knowledge in your national courts about the Convention and the case law of the Strasbourg Court. Therefore, if somebody wants to plead – suddenly in one of the high courts – arguments based upon the Convention case law, nobody in a Dutch court is going to be surprised. But I am afraid that is not quite the same in all of the other Member States, and there are several reasons why it is not. Some of them are completely accidental. In the Netherlands, people have a great experience of other languages and especially English. Hence, a text in English and case law written in English is not a very major obstacle. It will be for some, but not for very many. By contrast, if you are in a State like Romania, monist like the Netherlands is, International Law directly applicable as national law, the Convention and judgements of the Court interpreting the Convention, written in English and French, are part of your domestic law. Well, that is unusual. And in other jurisdictions the idea of pleading case law as if it is an authoritative interpretation, in this case, of the Convention, is anomalous. Famously, in the strictest form of interpretation in French law, case law is not binding. It is helpful, but it is not a source of law as such. And therefore, the idea of citing long or short passages on the judgements of the European Court of Human Rights and suggesting that it is the law which must be applied by the national court is an obstacle, for the constitutional reason that national courts frequently do not have regard to case law.
And there is one more problem, and unfortunately, it is very common. Very often, in the national appeal courts, nobody thought that they were going to end up in Strasbourg. Nobody has seen the Convention issue. This maybe the reason why it does not get pleaded. There are of course ways around, lawyers will always find ways around more or less. They will argue that although the Convention was not pleaded in so many words, the arguments were the same as the Convention arguments. And the national courts should have been able to make the link. Well, sometimes the Court says that it is fine with that, sometimes it is not. But increasingly, the Court is an overburdened institution, with far too many cases coming in through the door. It has always been a machine for rejecting applications and it still is, and for identifying problems with the applications, which will excuse the Court from going further. There has been a very clear shift from twenty years ago because back then, the Court was still quite inclined to say: “Oh well, if you have tried hard enough in the national system, even if you have not mentioned the Convention, we do not require you to have made the argument in the national courts precisely in the way that you bring it now to us”. That used to be the view in Strasbourg, but it is not anymore.
The reinforcement of the idea of subsidiarity and that the national courts should do the protecting of human rights in the first place, automatically means you should make the argument in your national court in the same way that you would make it in Strasbourg and hope to win. Bearing in mind the delays in Strasbourg, I hope you do. Of course, there is also the inadmissibility rule that “a manifestly founded application is rejected”. But that is a very difficult rule to understand. And the reason for that, is another byproduct of the Court being too busy. What is the strangest thing about the judgements of the European Court of Human Rights, taken as a whole? Almost all judgments have the same character. They almost all find violations. Well, that’s very strange, is it not? What about the non-violation cases? The answer is, they are almost all weeded out at an earlier stage, and do not give rise to judgments. Case law on admissibility is scarce. You have to go back to the old cases where the Court still had time to consider and give judgements which gave rise to a non-violation. Now, such judgments are only a small minority of the judgements that the Court delivers. And it is no coincidence; this is not because Europe is becoming a less safe place for human rights, but because the Court is concentrating, almost exclusively, its judgements on violation cases, disposing of non-violation cases by other means.
It’s actually quite difficult to identify accurately where the boundary is, between a manifestly ill-founded case and a no breach case. And to some extent, the Court has given it up itself.
Look at how few decisions on inadmissibility there are. If you leave aside the single judge cases, which nobody ever reads, the inadmissibility cases represent 75% of the Court’s workload. How many inadmissibility cases are there? It used to be approximately 4 to 1 inadmissibility to admissibility cases, once you excluded, what I should rudely call “the nonsense” that gets dealt with by the single judge. But the statistics have gone completely the other way. In conclusion, the only advice that I could give you in that respect, is read the old case law on inadmissibility in order to try and find the line and take the Court seriously. Do not take rubbish cases. If you do not have confidence in the case, if you are not sure that this is a violation, do not waste everybody’s time, what is the point? It is just clogging up a system, which has already become desperately overburdened. And it is of no help to anybody. Not even to the client, to have the imaginary hope that their application will ultimately succeed. So, my message on inadmissibility is, be concerned about the arguments you make in the national courts, that is where you want to win. If you ultimately have to go to Strasbourg, the inadmissibility criteria on worthwhile cases hardly create an obstacle.
There is no ECHR core syllabus or textbook that fails to refer to Soering v the UK. It is the first case of the Court on extraterritorial application and the first interim measures. Our generation could even take the extraterritorial application of the ECHR for granted. From your standpoint, how has the case law of the Court on that issue evolved ever since?
In those days, 1988 and 1989, the Court was not a permanent body. The European Commission of Human Rights dealt with admissibility decisions first and formed opinions about cases. Soering was one of those few cases sent from the Commission to the Court.
There was a previous case, Amekrane, concerning a 1963 coup in Morocco. Mr. Amekrane fled to Gibraltar, sought asylum, and was returned to Morocco without a determination of his application. He was executed and his widow brought an application against the UK, which was settled by a substantial payment. This set an early precedent for dramatic cases like Soering.
Soering was accused of the double murder in Virginia of his then girlfriend's parents. After fleeing to the UK, he and his girlfriend were caught shoplifting. Facing a potential death sentence if extradited, the case went through the English courts, then the Commission, which applied interim measures. Despite a large majority rejecting the application, the case went to the European Court of Human Rights, marking the first serious Rule 39 issue before the Court. The Court had no experience with extraterritoriality or urgency. The UK avoided Rule 39 indications due to the Convention not being part of domestic law at that time. This was to avoid questions in Parliament about the binding force of such indications. The UK had a deal with the Commission to prevent embarrassment in Parliament, where they would be informed of potential Rule 39 applications; usually the UK Government undertook voluntarily not to remove the applicant while the case was pending and so avoided binding R 39 decisions. This arrangement allowed the Foreign Office to manage situations discreetly and protected human rights.
In Brussels, we have recently seen Belgium refuse to adhere to Rule 39 in numerous asylum seeker cases, highlighting a significant issue: what is the binding force of an interim measures decision of the European Court of Human Rights in the national legal system? This is crucial, as it impacts the enforcement of human rights across Member States. The legal status and enforcement of these interim measures vary, causing inconsistencies in their application and adherence.
Another significant development is whether NATO forces in Iraq and Afghanistan carried the Convention guarantees with them. This illustrates the Convention's challenge to national security policy decisions: should these questions be tested before a European tribunal? Western European powers, particularly the UK and NATO have faced scrutiny over their actions in foreign conflicts. The extraterritorial application of the Convention raises complex questions about jurisdiction and accountability.
The future of this review process is uncertain, with numerous criticisms from senior politicians in Member States. They should consider the consequences of not having the Convention's protection, as seen in various other jurisdictions, like those attending Navalny's funeral in Russia, who faced police brutality without such safeguards. The European Court of Human Rights remains a crucial mechanism for protecting human rights, but its role and decisions continue to be debated.
To end this insightful discussion on a hopeful note, we would like to ask you, what advice would you give to young human rights lawyers and advocates?
It is difficult because I am old and you are young! We do not see the world the same way. There are aspects of course that we have in common.
When I first qualified as a lawyer, I was working in the city of London. Lawyers in the city of London have a pretty high opinion of themselves now, and they certainly did then. There was a guy on my last day while I was packing up my desk, a guy that I really admired. He was three years more senior than I and he was a litigator but he was not yet a partner (he subsequently became one). As I was packing up on my last Friday he looked in and said: “You are mad.” I looked up (not everybody thought I was mad back then, people have learned since of course, but it was an insight at the time) and I said: “Oh really?”
“Yes! You are going to a cobwebby corner of the law which nobody is interested in and nobody ever will be.”
He was talking about European human rights, and I should say that he was expressing the opinion of probably the 99.9 recurring percent of lawyers in the city of London at that time - not necessarily that I was mad as they might have thought that the good food in Strasbourg was a good reason to go to the European Commission on Human Rights - but from the point of view of the significance of human rights law. That was the view: that European human rights law was of no significance. In those days, if there was an article about human rights in a newspaper – we used to have those things, they would be white sheets of paper with writing on them – it would be one a month? No, one every two months. Strasbourg was usually confused with Brussels, Luxembourg, or anywhere else you care to mention, and as I say, in the profession, human rights protection was nowhere.
Why is this relevant to your question? Well, you are doing an excellent course at an excellent university, but let me let you in to a secret: you are not the only people who are studying human rights. There are many people who are interested in human rights law now, and I can tell you, when I started out in my career there just were not. It was a strange choice. But to be utterly serious, the most important advice that I could give you is: “Don’t give up. Because you are not always going to win.”
You have referred to my big cases. I am afraid there were a lot of small ones and I did not win them all, but I kept going and that is probably the most important thing if you are dealing with – what it used to be but is not anymore – a marginal area of the law.
If you are confident that what you are doing is worth doing, and you have done it to the best of your ability, the fact that you lose does not necessarily mean that your client was wrong. They might be wrong to choose you, but it does not necessarily mean that your analysis was wrong. It might come back and pat you on the back in the end. Now, it may just survive for a while, just like the 1989 judgment in Soering has survived, as you have said, for nearly the intervening half century.
The last thing I would like to pick up is one other aspect of Soering. There is a feature about this case which needs to be borne in mind considering that at the moment the European Court of Human Rights is under-resourced and swamped with cases, very many of which should have been resolved properly in the national court and should never have had to go to Strasbourg because there is lots of clear precedent. The Soering case took the European Court of Human Rights and the European Commission on Human Rights 364 days to determine, even though– each had a hearing and both had two rounds of written pleadings that were very extensive. Well, it would have been 367 days instead, but I rang them up when they told us when they were going to give the judgment and they gave a week's notice and I said “Do you realize [that if you deliver the judgment on the initially scheduled day] you are going to be a year and two days over? While if you gave judgment earlier you could say you have done it within a year?” Therefore, they changed the date. It would be very nice if the European Court of Human Rights had the resources now and the support from governments to reach decisions in really important cases in 364 days!
There is another important aspect, and that is the enforcement of the judgments of the Court, and that is a whole other topic, for another day, which you need to think about if you ever want to advise a client to make an application to the Court, which I hope you will all do very often.
Bios:
Samuel Grasselli is a graduate in International and Diplomatic Organizations at Campus CIELS, Padua, Italy. He is now pursuing an LL.M. in International Human Rights Law at the University of Groningen.
Katerina Lefkidou is a graduate in Law at Democritus University of Thrace, Komotini, Greece. She is now pursuing an LL.M. in International Human Rights Law at the University of Groningen.