A People’s History of the European Court of Human Rights
Europe’s Supreme Court
The exceptionality of the United States Supreme Court has long been conventional wisdom. The dean of American Court watchers, Anthony Lewis of the New York Times, once declared, “The Supreme Court of the United States is different from all other courts, past and present. It decides fundamental social and political questions that would never be put to judges in other countries.” Lewis was self-consciously echoing the French traveler Alexis de Tocqueville, who was amazed by the reach of America’s judges in his own day. The social role of U.S. law was indeed distinctive in the 1830s, when Tocqueville published Democracy in America, and even more so in 1964, when Lewis wrote Gideon’s Trumpet, his classic tale of a simple man fighting for his rights. But the United States has changed since the civil rights era, and so has the world. Memo to Anthony Lewis and Alexis de Tocqueville: the U.S. Supreme Court today has a peer in articulating public rights and values. Arguably, the other court is setting the pace.
Over the past thirty years, the European Court of Human Rights has developed an American-style body of constitutional law, comparable in its level of ambition, and in many ways more progressive. Unheralded by the mass press, this obscure tribunal in Strasbourg, France, has become, in many ways, the Supreme Court of Europe. Interpreting the European Convention on Human Rights, it is the judicial arm of the Council of Europe— a group distinct from the European Union, and much larger. The Council of Europe is the vestige of an early postwar attempt at European unity that largely failed but is quietly succeeding in the realm of human rights. Fortysix members strong, the Council of Europe stretches from Vladivostok to Reykjavik. It includes Turkey, Russia, and the nations of the Caucasus but excludes the nations of Central Asia. It covers every nation that is at least partly in geographical Europe, except for Belarus and the Vatican. Within this area live some 800 million people, speaking at least 28 languages...
CONTENTS
Acknowledgments / ix Introduction: Europe’s Supreme Court / 1
PART I The Expanding Ambit of Personal Life 1 Why Bastard? / 15 2 When Irish Eyes Are Crying / 26 3 Gay in a Time of Troubles / 33 4 Dudgeon’s Children / 42 5 The Greening of Europe? / 48 6 Dumb Immigrants / 55
PART II The Rights of Expression 7 Minos and Jehovah / 67 8 Recovered Memories / 76 9 Mohammed Comes to Strasbourg / 88
PART III State Violence 10 The Death Penalty, Mutilation, and the Whip / 101 11 The Original Hooded Men / 108 12 The Tortures of Aksoy / 123 13 Two Faces of Kurdish Feminism / 135
PART IV Challenges for the Future 14 The Chechen Challenge / 149 15 The Roma Challenge / 159
PART V Concluding Thoughts 16 A Constitutional Identity for Europe / 171 17 Human Rights in Europe and America / 181
Sources / 187 Index / 207
Europe’s Supreme Court
The exceptionality of the United States Supreme Court has long been conventional wisdom. The dean of American Court watchers, Anthony Lewis of the New York Times, once declared, “The Supreme Court of the United States is different from all other courts, past and present. It decides fundamental social and political questions that would never be put to judges in other countries.” Lewis was self-consciously echoing the French traveler Alexis de Tocqueville, who was amazed by the reach of America’s judges in his own day. The social role of U.S. law was indeed distinctive in the 1830s, when Tocqueville published Democracy in America, and even more so in 1964, when Lewis wrote Gideon’s Trumpet, his classic tale of a simple man fighting for his rights. But the United States has changed since the civil rights era, and so has the world. Memo to Anthony Lewis and Alexis de Tocqueville: the U.S. Supreme Court today has a peer in articulating public rights and values. Arguably, the other court is setting the pace.
Over the past thirty years, the European Court of Human Rights has developed an American-style body of constitutional law, comparable in its level of ambition, and in many ways more progressive. Unheralded by the mass press, this obscure tribunal in Strasbourg, France, has become, in many ways, the Supreme Court of Europe. Interpreting the European Convention on Human Rights, it is the judicial arm of the Council of Europe— a group distinct from the European Union, and much larger. The Council of Europe is the vestige of an early postwar attempt at European unity that largely failed but is quietly succeeding in the realm of human rights. Fortysix members strong, the Council of Europe stretches from Vladivostok to Reykjavik. It includes Turkey, Russia, and the nations of the Caucasus but excludes the nations of Central Asia. It covers every nation that is at least partly in geographical Europe, except for Belarus and the Vatican. Within this area live some 800 million people, speaking at least 28 languages.
Leading jurists have hailed the Strasbourg court as an embryonic constitutional chamber, or a supreme court in utero. Scholars invariably describe it with superlatives. Among the world’s systems of human rights, it has been dubbed “the most advanced and effective”; “pre-eminent”; the “most successful”; “certainly the most fully developed and the bestobserved”; “no doubt the most developed and successful.” The diplomat and scholar Antonio Cassese proclaims, “[N]o other human rights treaty can claim the level of influence of the European Convention.” Another professor calls the Strasbourg tribunal “a sort of world court of human rights.” An overeager journalist went so far as to argue that the U.S. Supreme Court “is being upstaged in its traditional role as the world’s most powerful and innovative legal body.”
The Strasbourg court is a civil court, where individual Europeans sue European nations for violating their human rights. By human rights, Europeans mean what Americans mean by constitutional rights: fundamental norms that are grounded in a basic document. That embraces things like “no torture,” which is what Americans think of as a human right. It also embraces what the people in the United States would call civil liberties— equal protection, due process, privacy, and First Amendment freedoms. In short, human rights are about values.
The European court routinely confronts nations over their most culturally sensitive, hot-button issues. And—what is most extraordinary—the nations comply. Strasbourg has, for example, stared down France on the issue of Muslim immigration; Ireland on abortion; Greece on Greek Orthodoxy; Turkey on Kurdish separatism; Austria on Nazism; Britain on gay rights and corporal punishment. On the whole, it is an impressive record of political courage and achievement...
A People’s History of the European Court of Human Rights
MICHAEL D. GOLDHABER
Rutgers University Press New Brunswick, New Jersey, and London
Library of Congress Cataloging-in-Publication Data Goldhaber, Michael D. A people’s history of the European Court of Human Rights / Michael D. Goldhaber. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-8135-3983-6 (hardcover : alk. paper) 1. European Court of Human Rights—History. 2. Constitutional law—Europe. 3. Courts—Europe. I. Title. KJC5138.G64 2007 341.4’8094—dc22 2006015373
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MICHAEL D. GOLDHABER is a contributing editor at The American Lawyer magazine, where he previously served as Chief European Correspondent and Senior International Correspondent. Mr. Goldhaber is a graduate of Columbia Journalism School (1997), Yale Law School (1993), and Harvard College (summa cum laude, 1990). He writes widely on legal affairs, with a focus on human rights and international arbitration.
