Credits: L-A. Sicilianos
An interview with Professor Linos-Alexandre Sicilianos, former Judge and President at the European Court of Human Rights (2011-2021)
To mark the 75th anniversary of the European Convention on Human Rights, HRH has the honour of hosting an interview with Professor Linos-Alexandre Sicilianos, former Judge and President of the European Court of Human Rights, on the role of the judges and his insights into the institutional functioning of the Court.
On this occasion, we are also pleased to inaugurate the second cycle of the blog series Behind the Scenes of the ECtHR’s practice, a collaboration with the Faculty of Law of the University of Groningen.
By Annkathrin Dix, Lente de Vries, and Judith Obiekwe
During our engagement with the International Human Rights Law in Practice module of the LLM International Human Rights Law at the University of Groningen, we had the distinct opportunity to take part in a compelling exchange with Professor Linos-Alexandre Sicilianos, former Judge and President of the European Court of Human Rights (hereinafter ECtHR/Court). The dialogue offered valuable reflections on his professional trajectory, the responsibilities inherent in his judicial roles, and his contributions to the development of the Court’s legacy, thereby broadening our understanding of the inner works of the ECtHR and enriching our appreciation of its institutional ethos.
Professor Sicilianos is a renowned jurist with extensive scholarly and hands-on expertise with the European Convention on Human Rights (henceforth the ECHR/Convention), and beyond, with experience in bodies such as the Committee on the Elimination of Racial Discrimination (hereinafter CERD), the Fundamental Rights Agency of the European Union, and the Institute of International Law. Throughout his tenure at the ECtHR, he had presided over and took part in the adjudication of numerous landmark cases that served as catalysts for legal and societal transformation, including Mugemangango v. Belgium, the 2020 Advisory Opinion on Article 7 ECHR (Advisory opinion concerning the use of the "blanket reference" or "legislation by reference" technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law) as well as Ukraine v. Russia (re Crimea) (dec) and Molla Sali v. Greece. With his unparalleled experience and infectious passion, we were fortunate to glean insights into some of the most notable moments of his distinguished career.
The forthcoming passage is an excerpt drawn from a more extensive interview.
Professor Sicilianos, we warmly thank you for agreeing to hold this interview with us – we are truly honored to have you here. Remarkably, your past and present engagements span a multitude of legal fields, ranging (indicatively) from your tenure at the ECtHR and membership of CERD, to your monographs on various international law topics and hundreds of articles in different languages, inter alia. How have your former experiences shaped your candidacy as an ECtHR judge?
One of my most formative experiences prior to joining the bench was my eight-year membership in the CERD, during which I participated in the review of approximately 140 state reports from 120 countries – a distinct privilege, I must say. During my second term, I chose not to stand for re-election, which enabled me to serve as rapporteur for states such as India, China, the United States, and the Russian Federation – a challenging and highly responsible role. CERD’s mandate is vast, encompassing over 300 million people worldwide. It offers a rare and in-depth view into the realities faced by minority and indigenous populations across the globe. One encounters issues that are both legally complex and politically charged – such as the rise of far-right movements, hate speech, and systemic discrimination – affecting deeply marginalized communities. These are insights one could hardly gain otherwise. For example, did you know that Fiji is the only state where indigenous people have historically held governing authority, or that Malawi has 45 tribes, but only eight are protected by the Constitution – raising serious concerns under the Convention on the Elimination of All Forms of Racial Discrimination? The wealth of information and perspective gained through CERD is unparalleled. Unlike the Committee Against Torture, which focuses on a specific issue affecting a narrow group (such as detainees), CERD addresses large-scale structural questions involving broad segments of society. I recall, for example, that the Sami people in Sweden had never before engaged in direct dialogue with the Swedish government. Their first such exchange took place during CERD’s examination of Sweden’s report, for which I served as rapporteur – a historic moment for the Sami. They reject being referred to as a “minority,” insisting: “We are indigenous. We were born here. We are the masters of this land.” I later served for two years on the Human Rights Council’s Working Group of Experts on People of African Descent – another wide-reaching mandate encompassing millions across the globe. These experiences proved invaluable. One is given the opportunity to explain to the Council of Europe Committee of the Parliamentary Assembly – the specialized committee responsible for the election of judges – what they can contribute to the collective work of the ECtHR. I believe my background as a member of CERD played a pivotal role in that process.
You held the esteemed position of President of the ECtHR from 05 May 2019 to 17 May 2020 – an achievement for which we extend our heartfelt congratulations, underscoring the diverse and multifaceted nature of your illustrious legal career. As you reflect on this pivotal period, how did your prior experience at the Court prepare you for your role as President, and what noteworthy experiences and challenges do you recall from that time?
The work of the President of the Court is threefold: presiding over the Grand Chamber (the judicial role), managing administrative duties, and representing the Court internationally. The representation role is crucial because the ECtHR is very open to the world, with frequent visits from supreme courts, heads of state, and ministers. I recall the 2020 judicial year opening, when I had three rooms and met a new supreme court president every 15 minutes – about 30 meetings that morning alone. It is intense but important, as this event gathers all of Europe’s top courts. I have also promoted the Network of Superior Courts, now the largest judiciary network worldwide, with 110 courts from 45 member states. When the President of the ECtHR is invited abroad on an official mission, he or she is received with protocol at the level of a head of state or government. We made about seven such visits to different countries during my mandate. Representation also involves regular contact and exchanges with other Council of Europe human rights bodies – like the Committee for the Prevention of Torture, Group of Experts on Action against Trafficking in Human Beings), Group of Experts on Action against Violence against Women and Domestic Violence, and others. We had regular meetings with all those bodies, without exception, usually involving groups of 10 to 15 judges, not just the President, to facilitate meaningful exchange. One significant reform I pushed was changing the Court’s judgment structure after 60 years. Until 2019, judgments had two parts: “in fact” and “in law,” with international law oddly treated as fact. We introduced a three-part format: “in fact,” “relevant legal framework” (including international, EU, and comparative law), and the Convention analysis. It was a tough debate – tradition versus innovation – but the change passed by a narrow majority and is now standard.
Then came COVID-19. When lockdown hit in March 2020, I was told to close the Court. I refused – millions depend on us as their last hope. With IT support, we found ways to keep working. How many cases did we process during lockdown? From March 16 to mid-May, less than two months – tell me a number. Then multiply that by ten. In total, 5,641 cases. We encouraged staff to work effectively from home. I said teleworking means “tele” but above all, “working.” I was in my office daily, monitoring operations with the Registry. During that period, we handled about 200 urgent provisional measures, many related to tensions between Greece and Turkey. Despite challenges, it was rewarding. We maintained a solid pace throughout the crisis. One tough case was an advisory opinion on Protocol 16, requested by Armenia’s Constitutional Court about a former head of state. It was politically sensitive and involved Article 7 of the Convention (nullum crimen sine lege). My colleagues wondered how we could manage without physical meetings. But through written exchanges and voting, we were unanimous. I said, “Look, it is possible.”
Among the multitude of separate opinions you have issued during your term as a judge of the ECtHR, is there one that you consider particularly instrumental in shaping the Court’s jurisprudence? If so, could you elaborate on its impact?
I did not write dissenting opinions very often because I preferred to be in the majority. I believed it was better to convince colleagues rather than be in the minority. However, I have written some concurring opinions, which are different. One important one is in Magyar Helsinki Bizottság, about evolutive interpretation. It was joined by then-President Raimondi. In it, I tried to shape the theoretical framework and conditions for evolutive interpretation. For me, there are three conditions: the Court cannot interpret contra legem (against the law); it can interpret praeter legem (beyond the law), but never contra legem. Evolutive interpretation must conform with the objective and purpose of the Convention and cannot go beyond the current situation. The Court is not an NGO to impose an agenda or direct evolution. A judge with an agenda is a bad judge. Each case should be decided with a clean slate – a tabula rasa – on its merits. That is how I understand evolutive interpretation.
Regarding dissenting opinions, I wrote one in Muršić on detention conditions and the minimum standard of three square meters per detainee. Less than three square meters strongly presumes a violation of Article 3 of the Convention (prohibition of torture, inhumane and degrading treatment). At the Chamber level, I was the sole dissenting judge finding a violation. Others disagreed. I pointed out the inconsistent case law – sometimes a strong presumption, sometimes irrebuttable, sometimes four square meters – it was chaotic. I argued the case should go to the Grand Chamber, which it did. Muršić remains the key reference in the Court’s detention conditions case law. All such cases refer to it. Its principles are still authoritative. This dissent was practically important. Over 1,500 detention condition cases are currently pending just in Greece – more than half of its pending cases. They raise issues like detainee space and other relevant factors to determine Article 3 violations. Muršić was not only about space; it also addressed playgrounds, facilities, whether toilets count in the space, quality of facilities, detainee work outside prison, and more. It provided a checklist for assessing violations. Thousands of cases across the Council of Europe deal with this. For me, Muršić was an important case.
Recognizing that the Court’s judges are shaped by their background and respective legal traditions – to what extent do they undergo a process of transformation during their tenure? Are they expected to maintain their perspectives and approaches of the legal tradition they represent, or is there room for evolution?
There is a complete transformation. When you first arrive at the Court, you think you know the Convention. I had taught it for 18 years at the University of Athens and felt confident. But very quickly, I realised – I didn’t know it at all. Seeing it from the inside is completely different from seeing it from the outside. From within, you understand that the Convention permeates every branch of law – no exceptions. Not just public, administrative, or constitutional law, but also criminal, civil, procedural law, and more. When preparing a case report for your colleagues in the Chamber, you are not analysing a judgment as you would in academia – you are analysing domestic law through the lens of the Convention. It is the reverse process. That is why the first six months are a shock. Cases come from all directions – like stones. The pressure is intense, especially for judges from high-case-load countries. They often feel completely deregulated – lost, even. But gradually, as things begin to make sense, you are transformed. The most striking transformation is among judges from states with difficult human rights records. At first, some arrive with a natural instinct to defend their country. But they quickly realise: that is not their role. They are not there to defend the State. That is for the State agents. The judge’s role is entirely different.
In addition to exploring Professor Sicilianos’s formative experiences, we could not resist asking one final, slightly tangential question to satisfy a lingering curiosity.
In your speech commemorating 60 years of the ECtHR, you describe the Court as an essential pillar of European construction in unity. In your view, does this position the ECtHR as the European constitutional court, with the ECHR serving as a constitutional instrument, or is it better qualified as a quasi-constitutional court, sui generis?
Well, the term “constitutional court” carries a strong domestic law connotation, which I do not particularly like. But the ECtHR does have constitutional elements. When asked which legal order prevails – say, between a constitution and the Convention – answers vary: a constitutional judge says the Constitution; a judge in Luxembourg says EU law; and a judge in Strasbourg points to Article 27 of the Vienna Convention, which says domestic law, including constitutions, cannot override international obligations. So, there is no clear-cut answer. This is why I reject a strict hierarchy or Kelsenian approach here. It is about dialogue, harmonisation, and harmony. For this reason, I do not like calling the ECtHR a “constitutional” or “quasi-constitutional” court. It is a human rights court based on a unique pan-European international instrument. There are at least ten elements – five normative, five institutional – that make the ECHR unique. I discussed these in an article on the 70th anniversary of the Council of Europe and the Convention in 2020. So, no need to label it “constitutional.” There are many constitutional courts, but only one ECtHR in Strasbourg.
Bios:
Annkathrin Dix holds an LLB in International & European Law from the University of Groningen and is currently in pursuit of a double LLM in International Human Rights Law and Health & Technology Law at the same institution.
Lente de Vries holds a BA in Liberal Arts and Sciences with a major in International Justice and a minor in Gender Studies from Leiden University and is currently pursuing a double LLM in International Human Rights Law & International and Transnational Criminal Law from Groningen University and the University of Amsterdam.
Judith Obiekwe holds an LLM in International Human Rights Law from the University of Groningen. Judith is also a licensed Barrister and Solicitor in Nigeria with experience in human rights law, migration law as well as criminal law.