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Judicial Activism and Judge-Made Law at the ECtHR

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Kacper Zajac dives into the debate on the judicial activism of the ECtHR, arguing it’s a form of judicial law-making. Factors enhancing it include interpretation, a weak textual basis, and high-case law.

Image courtesy of interviewee. January 9, 2024

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This video video discusses the concept and implications of judicial activism, particularly in the context of the European Court of Human Rights (ECHR). Judicial activism is defined as judges prioritizing contemporary needs over established legal precedents and legislative deference, which can lead to judges "bending" the law to achieve desired outcomes based on non-legal grounds. This video video is contrasted with judicial lawmaking, which is an inherent part of legal interpretation and application.

The ECHR has faced criticism for being an activist court since its establishment, accused of overstepping its jurisdiction by expanding the scope of issues it addresses. This video video criticism comes from various levels, including legal scholars and domestic judges. The article argues that the concept of judicial activism may not be suitable for international courts, as it is rooted in domestic legal contexts, particularly that of the United States.

Instead of focusing on judicial activism, the article posits that judicial lawmaking better explains the ECHR's function. It identifies ten factors that accelerate judicial lawmaking within the court, including interpretation methods, the nature of legal texts, presence of positive obligations, applicable doctrines, case loads, and judicial turnover. This video video also emphasizes that legislative inactivity enables courts to step in and make judicial decisions in the absence of new legislation.

A key point noted is the principle of subsidiarity, which limits the ECHR's ability to generate law by ensuring that rights are protected primarily by domestic authorities. This video video principle emphasizes that the ECHR should only intervene after all domestic remedies have been exhausted. Recent developments suggest a trend toward procedural rather than substantive review, indicating the court's reluctance to impose new standards directly.

The article concludes that while the ECHR has historically produced a significant amount of judicial law since the 1970s, factors such as Russia's exit from the convention system and the reinforced principle of subsidiarity indicate that the court's output may have peaked. There are concerns over delays in processing cases and the sustainability of the court's capacity to address increasing applications effectively.

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So to put it simply, the concept

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of judicial activism means

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that judges prioritize the needs derived from present day

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circumstances over the doctrine of precedent

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and the traditional deference to the legislature.

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So in other words, judicial activism is just bending the law

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to the predetermined outcome,

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which a judge favors on non-legal grounds.

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And that should be distinguished from judicial lawmaking,

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which could be understood

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as a judicial overlay on the text of the law itself.

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So it's a natural consequence of the role that judges play,

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that is the interpretation and application of laws.

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Laws are generally passed

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by legislator in an abstract, right?

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So without taking into consideration all possible scenarios

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in which they can apply, it's then on the courts

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to actually interpret those laws

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and apply them in specific real life situations.

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And that process allows

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for an input from the judiciary while the European Court

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of Human Rights has been actually charged

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with being an activist court.

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And this has to do with the fact

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that since its creation in the fifties,

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the court has immeasurably extended the scope of issues

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that fall within this jurisdiction.

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And that criticism has been levied by legal scholars,

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domestic judges, as well as governments.

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Even the former registrar

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and the judge of the court, Paul Mahoney, recognized

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that judicial activism

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and restraint were both inherent in the

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process of judicial review.

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But in all fairness, most

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international courts have been accused of some form

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of judicial activism, especially those dealing

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with human rights issues.

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So the article argues that the notion

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of judicial activism is not particularly well suited

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for international court, you know,

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having been developed in a

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domestic jurisdiction in the particular context of the legal

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and political reality of the United States.

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So the term itself has also been highly politicized

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and is often thrown well

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whenever the failed to side with one particular side

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of the legal dispute.

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So in nothing else, the concept

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of judicial activism is unhelpful.

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So instead, when it comes to European Court of Human rights,

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this issue is better explained in terms

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of judicial lawmaking, which generates, judgment law

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as a result of the process.

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And that phenomenon

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of judicial lawmaking actually exists in all legal

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jurisdictions, regardless of the legal basis.

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Each legal point that judges must determine in a case

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before them constitutes a layer of judgment made law,

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and that's simply unavoidable as a matter of practice.

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So the article identifies 10 factors which accelerate

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judicial lawmaking in the context

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of the European Court of Human Rights.

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Most of those factors exist in some form

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of domestic jurisdictions too,

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but the function of

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how they actually play out in each jurisdiction,

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results in the acceleration of deceleration

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of the judicial lawmaking process.

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And the first one, and perhaps the most important

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is interpretation.

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Given court adopts the European Convention, human rights

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as an international treaty is subject to the rules

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of interpretation prescribed

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by the Vienna Convention on the law.

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The treaties outta those two major modes stand out.

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Firstly, courts could either remain faithful

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to the original intention of the drafters, that is

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to apply originalism,

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or alternatively, they can depart from the original meaning

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and rather keep in line with the present day conditions.

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That is to apply the doctrine of Living instruments

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and the concept, the Doctrine of Living Instrument.

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It drives the accumulation of judgment made law as it allows

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for an ever changing interpretation, which is not limited

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to the original meaning of the text.

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So a changing environment prompts changes

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in the jurisprudence.

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Relatively early in this operation in the 1970s,

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the European Court of Human Rights adopted the living

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instrument doctrine

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as deep prevailing mode of interpretation.

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And this has led the court to expand the scope

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of application of the convention

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to cover areas which are not expressly mentioned in the

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document, such as environment, for example,

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but also to uphold rights,

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which could not have been contemplated

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by the drafters at the time of the drafting, for example,

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those related to the internet,

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which naturally did not exist in the fifties,

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or those which were rejected by the drafters on purpose.

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But for, for one reason

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or another, the European Court of Human Rights decided

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to depart from that original intention.

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And based on living instrument

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and changing daily, aspects of the society

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that we live in, it decided to recognize those right,

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even though the original intention was never to do so.

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Another, factor.

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Second one is the approach to construction of legal texts.

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So not all laws are created equal when it comes

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to the construction laws, which regulate the power

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of the government, tend to be, tend

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to attract a relatively narrow construction.

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On the other hand, laws recognizing individual rights tend

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to attract a relatively wide construction.

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A narrow construction naturally limits the accumulation

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of judgment law, while a broad construction tends

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to drive it, because courts do not want the protection

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offered to individuals to fall short

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of what's necessary in a given set of circumstances.

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Now, the third factor

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that the article identified was the textual basis.

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The more comprehensive the text of the law is,

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the less room there is for judge made law.

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This is because a detailed text is easier

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to apply than vague and generic phrases.

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In case of the convention, the text

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of its provision is relatively short and generic.

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More than that, it also contains plenty

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of vague phrases such as torture or fair hearing

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or private and family life.

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And the meaning of these phrases is not

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to be found in the text of the convention itself.

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It must be developed by the court.

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Instead, in each case, this will lead to another layer

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of judge made law.

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Now, the four factor is the concept of positive obligations.

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The existence of positive obligations opens a rule,

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a real flat gate to judge made law positive obligations.

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Under the European Convention,

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human rights were recognized since,

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I would say the 1970s.

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And they have allowed the court

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to extend the protection offered by the convention

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to horizontal relations between individuals themselves,

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as well as harm resulting from natural

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occurrences like disasters.

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But they have also rendered states liable for inaction,

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which drastically expands the number

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of scenarios over which the court has jurisdiction compared

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to the traditional negative rights model

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adopted initially in the fifties and sixties,

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and that that constituted the actual basis

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for their initial meaning of the convention.

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Now, the next, the next factor is doctrine of precedent,

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which requires courts generally

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to follow previously decided cases.

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And that hinders the accumulation of judgment law

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because it leaves no room for any new interpretation

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where one already exists.

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And this factor has traditionally had the most effect in

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common law jurisdictions like the US

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or the uk, where courts are indeed expected

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to follow previous decisions, almost to the latter.

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However, even in civil law jurisdictions, the idea

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of precedent has some persuasive value.

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And this is the approach taken

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by the European Court of Human Rights.

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While the court is somehow restrained by the doctrine

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of precedent, it still has ample room for new

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and creative interpretation.

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And that in turn contributes

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to the accumulation of judgment law.

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Another factor is the case caseload turnover.

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You can think of each case as an individual scenario,

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which engages various aspects of the law.

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Now, the more scenarios are presented to the court,

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the more aspects of the law are engaged,

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and this translates into more judgment made,

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lobbying generated.

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When it comes to the European Court of Human Rights,

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the caseload turnover is extremely high.

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In 2022, there were over 40,000 applications

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allocated to a judicial formation,

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and judgments were delivered in respect

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of over 4,000 applications.

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The court also has something

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that we called compulsory jurisdiction.

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In other words, it's not in the position to p to pick

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and choose its own caseload.

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Uh, anytime a case, complies

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with formal admissibility requirements, it has

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to be admitted and has to be allocated

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for a decision making process.

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And that is something that actually distinguishes discord

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from many of, supreme courts of domestic legal systems,

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which tend to have discretionary jurisdiction.

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And they can pick which cases to hear.

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So naturally, the more cases the court deals with

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to more scenarios, the law is applied,

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and in turn, that drives the accumulation of judge made law.

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Now the next factor is judicial turnover.

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So the more individuals pass through an institution,

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the more diverse the impact will be in case of court.

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The higher the number of judges passing through the court,

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the higher the number of divergent

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or contradictory opinions,

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and that naturally drives the accumulation

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of judge made law too.

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On the other hand, a small bench tends

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to be more consistent in its opinions, which limits the room

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for the growth of judgment law.

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The European Court of Human Rights is composed of 46 judges,

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one from each member state of the Council of Europe.

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And as of now, there have been over one 60 former judges

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of the court since the 1950s.

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So that inevitably also leads to a high,

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judicial turnover which turn, which translates into more

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and more judgment made law too.

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Now, the ne the next factor is, legislative inactivity.

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So the separation of powers principle tasked the judiciary

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with the interpretation of laws passed by the legislature.

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However, generally, anytime the legislature deems,

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a given interpretation to be undesirable,

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it's in the position to pass a new law

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which fixes the problem.

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If, the problem derives from a

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constitutional interpretation, for example, like in the us,

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then the only way to fix that problem is to,

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to pass an amendment to the Constitution.

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But most of the time, whenever a judgment applies to,

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basic legislation, it's enough for the legislature

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to pass a new law with, usually with a simple majority.

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So a legislative activity concurrent to the operation

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of the judiciary necessarily limits the accumulation

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of judge made law because it erases its effect

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through the passes of new legislation

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whenever deemed desirable.

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On the other hand, a lack of legislative activity leads

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to courts stepping in

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and filling that void with judicial lawmaking.

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And within the European Convention Human Rights System,

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the activity of legislature is virtually non-existent,

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and there is no mechanism for the limitation of the effects

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of any judgment of the European Court

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of Human Rights other than the treaty amendment.

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And amending an international treaty involves much more

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complex and demanding process compared

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to passing simple domestic legislation.

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So just for the simple reason

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that there is nothing really counterbalancing the European

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Court of Human Rights as part of the separation of powers,

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that also the accumulation of judge made law.

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Now the next one,

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the next factor identified in the article is the

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interstate jurisdiction.

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So although the vast majority of cases brought

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before the European Court of Human Rights are brought

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by individuals, the court also has jurisdiction

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to adjudicate violations of the convention rights

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through a system of interstate adjudication.

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So one state suing another state, presumably on behalf

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of a citizen or set of citizens

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who have been somehow wronged.

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But historically, this path has never been popular.

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And at the end of 2022,

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there were only 16 interstate cases

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pending before the court.

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And although it seems like a very tiny fraction of over,

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you know, 40,000 cases admitted pay, yeah,

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it's actually quite important

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and has a significant impact on the judicial lawmaking

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at the court because these interstate cases generally

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concern conflict, most of them now concerns,

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the ongoing conflict between Ukraine and Russia,

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but also previous conflicts between Russia

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and Georgia, for example.

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And, since the basis of

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that jurisdiction is an armed conflict, the body of law

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that is to be applied is actually the something

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that we call international humanitarian law.

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So law regulating the conduct of, military activities

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between various sites,

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and that law is quite separate to the general body

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of human rights, which is the bread

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and butter of the European Court of Human Rights.

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So this seemingly, you know,

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insignificant interstate jurisdiction

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is actually a gateway to a brand new body of law,

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which the court has to apply.

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And of course, a new, a brand new body of law,

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being applied to the European Court

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of Human Rights means a brand new set of judicially made,

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generated law, not the last factor that the article

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identified is the, is the autonomous meaning the doctrine

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of autonomous, meaning the European Court of Human Rights,

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unlike domestic courts, really, it must deal

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with a wide variety of different legal systems.

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They all employ different definitions which affect the scope

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of application of legal rules.

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So in order to accommodate that situation,

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the court has developed the principle of autonomous meaning

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whereby different concepts mentioned in the convention

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are given the same meaning across all legal systems in

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Europe, regardless how,

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how they are being defined domestically.

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So those concepts such as, for instance,

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the term home or family life or criminal charge

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or witness, they are all given the same meaning across the

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whole continent, under the jurisprudence

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of the European Court of Human Rights, even though,

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for example, the legal system of the UK

14:40.905 --> 14:43.925
or Germany might define them slightly differently.

14:45.905 --> 14:50.605
Um, and that doctrine inadvertently also contributes

14:50.865 --> 14:53.005
to the accumulation of judge made law

14:53.235 --> 14:56.085
because the court developed its own jurisprudence

14:56.085 --> 14:57.725
concerning each relevant concept,

14:58.305 --> 15:00.565
rather than simply just borrow the meaning

15:00.625 --> 15:03.045
of those concepts from existing legal systems.

15:03.985 --> 15:06.805
And each such concepts actually adds another layer

15:06.825 --> 15:07.845
of judge made law.

15:08.585 --> 15:10.005
And these are the 10,

15:10.185 --> 15:12.805
10 factors which the article actually identified.

15:13.105 --> 15:16.565
And I think they all actually contribute to the, that,

15:16.595 --> 15:19.325
that acceleration of the accumulation

15:19.505 --> 15:22.165
of judgment law at the European Court of Human Rights.

15:22.425 --> 15:24.405
So the biggest break on the accumulation

15:24.405 --> 15:26.765
of judgment law at the European Court

15:26.765 --> 15:29.405
of Human Rights is the principle of subsidiarity.

15:30.355 --> 15:33.645
That principle generally does not exist in domestic legal

15:33.665 --> 15:36.165
system at the most basic level.

15:36.545 --> 15:38.485
Uh, the principle of subsidiarity means

15:38.485 --> 15:41.445
that decisions should be made at the lowest level possible,

15:42.165 --> 15:44.945
and that that principle has some applications outside

15:45.525 --> 15:47.305
the realm of legalities too.

15:47.365 --> 15:49.065
It could be a political principle too,

15:49.725 --> 15:51.905
but within the context of the European Court

15:51.905 --> 15:55.145
of Human Rights, that principle means that the protection

15:55.145 --> 15:58.145
of the rights contained in the convention is first

15:58.245 --> 16:01.065
and foremost effectuated by domestic authorities

16:01.725 --> 16:02.985
and domestic courts.

16:03.165 --> 16:07.305
So your legal courts relatively close to where you live,

16:07.645 --> 16:12.305
are the first and foremost, carriers of that function

16:12.365 --> 16:14.425
of actually protecting your convention rights.

16:14.765 --> 16:16.825
And the court in Strassburg,

16:16.965 --> 16:19.425
is just the matter of last resort.

16:20.085 --> 16:21.265
And that principle has

16:21.865 --> 16:24.585
multiple manifestations in the convention systems.

16:25.905 --> 16:28.865
Procedurally, the principle of subsidiarity means

16:28.865 --> 16:30.625
that complaints cannot be brought

16:30.625 --> 16:32.665
before the European Court of Human Rights

16:33.285 --> 16:36.425
unless all domestic remedies have already been exhausted.

16:37.085 --> 16:40.385
So you have to go through all the domestic legal system,

16:40.605 --> 16:43.025
stages, go through your local court up

16:43.115 --> 16:45.905
until the Supreme Court of the country you live in,

16:45.905 --> 16:48.265
and only then you can actually go to Strasburg.

16:49.175 --> 16:51.945
Furthermore, under the fourth instance doctrine,

16:51.945 --> 16:54.385
which is part of that idea of subsidiarity,

16:54.885 --> 16:57.185
the European Court of Human Rights generally does not

16:57.465 --> 16:58.745
question findings of fact

16:58.965 --> 17:02.825
or law in terms of the domestic meaning,

17:03.095 --> 17:05.505
that is being rendered by national courts.

17:06.045 --> 17:08.865
Uh, in that process of going through the various stages

17:08.925 --> 17:10.785
of the domestic legal authorities

17:10.785 --> 17:12.225
before you can go to Strasburg.

17:12.285 --> 17:14.665
So anytime your,

17:15.055 --> 17:17.905
your local domestic court renders an interpretation

17:17.905 --> 17:21.625
of domestic law or establishes that something has happened

17:21.685 --> 17:22.705
or has not happened,

17:23.295 --> 17:26.505
that finding will likely be binding on the European Court

17:26.505 --> 17:28.785
of Human Rights unless the court finds

17:28.785 --> 17:30.265
it manifestly unreasonable.

17:31.125 --> 17:34.105
Now, in terms of the substantial side of the principle

17:34.105 --> 17:38.105
of subsidiarity, it means that states enjoy a certain margin

17:38.105 --> 17:39.105
of appreciation

17:50.025 --> 17:51.525
in gray zone areas.

17:52.585 --> 17:54.405
It could be said that both procedural

17:54.545 --> 17:58.445
and substantive subsidiary radically limits, the ability

17:58.465 --> 18:00.005
of the European Court of Human rights

18:00.005 --> 18:01.925
to generate judgment made law.

18:01.945 --> 18:04.325
And that's why, the article calls

18:04.325 --> 18:07.565
that the biggest break on the acceleration

18:07.665 --> 18:08.725
of judgment made law.

18:09.905 --> 18:13.165
Uh, now it is worth mentioning that the principle of Subsid

18:13.785 --> 18:16.765
has recently been undergoing a expansion too.

18:16.905 --> 18:21.005
So at least since the conferences in Interlachen in 2010

18:21.065 --> 18:23.565
and Brighton in 2012,

18:23.565 --> 18:26.765
the 10 subsidiarity is now being added to the text

18:26.765 --> 18:28.565
of the convention for the first time.

18:29.305 --> 18:31.565
And that push, for new

18:31.625 --> 18:32.805
and robust version

18:32.905 --> 18:36.805
of subsidiarity is now transforming the review performed

18:36.805 --> 18:37.885
by the European Court

18:37.885 --> 18:40.685
of Human Rights from substantive towards

18:40.685 --> 18:42.165
more procedural in nature.

18:43.145 --> 18:46.925
So these days, the court is somewhat reluctant to interfere

18:46.925 --> 18:48.645
with the outcome of the balancing

18:48.705 --> 18:50.805
of competing human rights interest

18:51.315 --> 18:54.685
that is generally being performed, by domestic courts

18:54.685 --> 18:57.685
before you actually get to the Strasburg phase.

18:58.185 --> 19:00.805
Um, so long as that, competing

19:00.865 --> 19:04.125
of various interests is being conducted in light

19:04.125 --> 19:06.325
of the European court's jurisprudence.

19:07.705 --> 19:10.765
And, what else should be,

19:11.125 --> 19:14.085
emphasized at this point is that deference is also given

19:14.185 --> 19:18.165
to national, legislatures when they give a proper

19:18.725 --> 19:21.245
consideration to the balancing of competing interest

19:21.875 --> 19:23.925
when passing legislation in the first place.

19:24.105 --> 19:27.165
So if there is some kind of, bill on the agenda

19:27.185 --> 19:30.285
of parliament and that bill is being discussed properly,

19:30.545 --> 19:34.685
and, various stakeholders are being invited

19:34.785 --> 19:38.165
to say whatever they think, this is or should be,

19:38.625 --> 19:41.325
and that process is very thorough and,

19:41.465 --> 19:45.245
and, takes into account various interests,

19:45.505 --> 19:47.445
the more thorough that process is,

19:47.825 --> 19:49.525
the more reluctant the European Court

19:49.525 --> 19:52.285
of human rights will be to interfere with the outcome of

19:52.285 --> 19:54.125
that, legislation process.

19:54.745 --> 19:57.365
And this modern version of subsidiarity

19:58.005 --> 20:00.685
severely restricts the ability of the European Court

20:00.685 --> 20:03.525
of Human rights to generate judgment made law

20:03.525 --> 20:06.805
because the court no longer sets substantive legal

20:07.165 --> 20:10.125
standards, but rather performs just a review

20:10.185 --> 20:13.485
of judicial processes conducted by domestic courts,

20:13.655 --> 20:18.005
which are being conducted in reference to the standards set

20:18.025 --> 20:20.485
by the European Court of Human Rights in the past.

20:21.285 --> 20:23.045
I think the functioning of the European Court

20:23.045 --> 20:25.725
of Human Rights is probably really best understood in the

20:25.725 --> 20:28.645
context of judicial lawmaking rather than judicial activism.

20:29.105 --> 20:31.885
And judicial lawmaking exists in all legal jurisdictions

20:31.945 --> 20:33.245
and is simply unavoidable.

20:34.265 --> 20:37.205
It just so happens that when it comes to the European

20:37.505 --> 20:41.605
of human rights, the interplay relevant happens

20:41.705 --> 20:44.165
to overwhelmingly accelerate the,

20:46.915 --> 20:50.715
I wanna say at the end that,

20:50.995 --> 20:53.755
I think there are good reasons to believe that,

20:54.095 --> 20:56.955
the jurisprudential output of the European Court

20:57.015 --> 20:58.715
of Human Rights has already peaked.

20:59.295 --> 21:02.715
So, despite the fact that, that we talk,

21:02.715 --> 21:04.875
the article talks a lot about the acceleration

21:04.895 --> 21:08.835
of judicial lawmaking, I think it's fair to say

21:08.835 --> 21:11.915
that we have already passed the point when that,

21:12.105 --> 21:13.675
that output has already peaked.

21:14.095 --> 21:15.515
And the main reason for that,

21:15.665 --> 21:16.955
well, a couple of reasons really.

21:17.055 --> 21:19.555
Um, the first one is the fact that Russia is no longer part

21:19.555 --> 21:20.555
of the convention system.

21:21.295 --> 21:24.995
And, prior to the departure, they were responsible

21:25.095 --> 21:29.355
for approximately 13% of judgment issued by the court,

21:29.365 --> 21:31.875
which was one of the highest number for all member states.

21:32.255 --> 21:35.115
So just for that simple reason that,

21:35.175 --> 21:37.075
the court has no longer jurisdiction over

21:37.755 --> 21:41.235
I think like 140 million citizens of Russia, that is one

21:41.235 --> 21:44.755
of the main reasons why its output has probably,

21:44.935 --> 21:46.555
already peaked.

21:46.975 --> 21:50.235
Now, the second big reason is the newly reinforced principle

21:50.235 --> 21:52.355
of subsidiarity, which I have already explained.

21:52.975 --> 21:55.235
So the court is now more engaged in

21:55.795 --> 21:58.475
procedural review rather than setting substantive standards.

21:59.375 --> 22:02.995
Um, so now the burden of judge made law related

22:03.015 --> 22:06.875
to the convention is like gradually shifting from Strasberg

22:06.875 --> 22:08.195
towards domestic courts.

22:09.055 --> 22:11.795
And then finally, there's again, this old question

22:11.895 --> 22:15.155
of the administrative capacity of the court to continue

22:15.215 --> 22:18.075
to process so many applications pay, yeah,

22:18.355 --> 22:19.515
I mean, it's not a new problem.

22:19.815 --> 22:23.195
Um, the very same problem led to the transformation

22:23.195 --> 22:27.115
of the court in the 1990s when, the Council

22:27.135 --> 22:29.715
of Europe was expanding and new countries in central

22:29.855 --> 22:32.475
and Eastern Europe was to join the court.

22:32.575 --> 22:34.475
And at that point, the court was still a part-time

22:34.475 --> 22:35.955
institution, so it had

22:35.955 --> 22:38.195
to transform into a full-time institution.

22:38.195 --> 22:42.075
Otherwise it was just simply not possible to carry on with,

22:42.095 --> 22:44.475
increased number of applications.

22:45.615 --> 22:47.875
But now we have a full-time institution,

22:48.215 --> 22:50.035
and we face pretty much the same problem.

22:50.775 --> 22:55.475
And that problem is not really based on the, accession

22:55.475 --> 22:57.435
of new states, the to the system,

22:57.575 --> 23:01.635
but more, I think it has been said many times before,

23:01.695 --> 23:03.235
but it's, it's worth repeating

23:03.235 --> 23:05.395
that the court is really a victim of its own success.

23:05.465 --> 23:09.835
Like, just given the, the reputation

23:09.835 --> 23:12.595
that the court has, gathered over the decades

23:13.095 --> 23:14.795
of being relatively successful

23:14.935 --> 23:17.995
and, arguably the most successful,

23:18.085 --> 23:20.915
human rights court of law worldwide.

23:21.575 --> 23:24.595
Um, and now there's pretty much everyone in Europe knows

23:24.985 --> 23:27.395
what, either European court of human right is,

23:27.775 --> 23:29.995
and just for that reason, people are more

23:29.995 --> 23:33.315
and more inclined to, keep sending their complaints

23:33.375 --> 23:35.675
to the, to the stress by court.

23:36.335 --> 23:38.235
And, I think more

23:38.235 --> 23:41.555
and more people actually, discuss this idea

23:41.665 --> 23:44.755
that this cannot continue that way forever. Because

23:45.265 --> 23:49.125
At this point we are facing, it's not uncommon

23:49.185 --> 23:52.245
for an application sent to Strasberg to take up

23:52.245 --> 23:53.885
to 10 years to be resolved.

23:54.585 --> 23:57.085
And I think everyone has the sense that,

23:57.115 --> 23:59.285
this is just not right and something has to do, be,

23:59.545 --> 24:00.725
has to be done about it.

24:01.385 --> 24:04.365
Um, but well, we'll, we'll see what it goes from there.

24:04.585 --> 24:08.285
Um, I think the jurisprudential output has already peaked,

24:08.345 --> 24:10.165
but that being said,

24:10.225 --> 24:11.525
we don't know what's gonna happen next.

24:12.465 --> 24:14.645
So to sum up, well there are some good reasons

24:14.705 --> 24:16.285
for the European Court of Human Rights

24:16.285 --> 24:18.085
to have generated large quantities

24:18.085 --> 24:20.645
of judgment made law since the 1970s.

24:20.905 --> 24:23.605
Um, not necessarily due to activism,

24:23.705 --> 24:26.005
but just, just, as a function

24:26.005 --> 24:29.405
of the different factors playing out in that jurisdiction.

24:29.905 --> 24:31.765
Uh, the court is now probably on.

00:02 - So to put it simply, the concept of judicial activism means that judges prioritize the needs derived from present day circumstances over the doctrine of precedent and the traditional deference to the legislature. So in other words, judicial activism is just bending the law

00:17 - to the predetermined outcome, which a judge favors on non-legal grounds. And that should be distinguished from judicial lawmaking, which could be understood as a judicial overlay on the text of the law itself. So it's a natural consequence of the role that judges play, that is the interpretation and application of laws. Laws are generally passed by legislator in an abstract, right? So without taking into consideration all possible scenarios

00:43 - in which they can apply, it's then on the courts to actually interpret those laws and apply them in specific real life situations. And that process allows for an input from the judiciary while the European Court of Human Rights has been actually charged with being an activist court. And this has to do with the fact that since its creation in the fifties, the court has immeasurably extended the scope of issues

01:07 - that fall within this jurisdiction. And that criticism has been levied by legal scholars, domestic judges, as well as governments. Even the former registrar and the judge of the court, Paul Mahoney, recognized that judicial activism and restraint were both inherent in the process of judicial review. But in all fairness, most international courts have been accused of some form

01:28 - of judicial activism, especially those dealing with human rights issues. So the article argues that the notion of judicial activism is not particularly well suited for international court, you know, having been developed in a domestic jurisdiction in the particular context of the legal and political reality of the United States. So the term itself has also been highly politicized and is often thrown well

01:52 - whenever the failed to side with one particular side of the legal dispute. So in nothing else, the concept of judicial activism is unhelpful. So instead, when it comes to European Court of Human rights, this issue is better explained in terms of judicial lawmaking, which generates, judgment law as a result of the process. And that phenomenon of judicial lawmaking actually exists in all legal

02:16 - jurisdictions, regardless of the legal basis. Each legal point that judges must determine in a case before them constitutes a layer of judgment made law, and that's simply unavoidable as a matter of practice. So the article identifies 10 factors which accelerate judicial lawmaking in the context of the European Court of Human Rights. Most of those factors exist in some form of domestic jurisdictions too, but the function of

02:40 - how they actually play out in each jurisdiction, results in the acceleration of deceleration of the judicial lawmaking process. And the first one, and perhaps the most important is interpretation. Given court adopts the European Convention, human rights as an international treaty is subject to the rules of interpretation prescribed by the Vienna Convention on the law. The treaties outta those two major modes stand out.

03:09 - Firstly, courts could either remain faithful to the original intention of the drafters, that is to apply originalism, or alternatively, they can depart from the original meaning and rather keep in line with the present day conditions. That is to apply the doctrine of Living instruments and the concept, the Doctrine of Living Instrument. It drives the accumulation of judgment made law as it allows for an ever changing interpretation, which is not limited to the original meaning of the text.

03:37 - So a changing environment prompts changes in the jurisprudence. Relatively early in this operation in the 1970s, the European Court of Human Rights adopted the living instrument doctrine as deep prevailing mode of interpretation. And this has led the court to expand the scope of application of the convention to cover areas which are not expressly mentioned in the document, such as environment, for example,

04:03 - but also to uphold rights, which could not have been contemplated by the drafters at the time of the drafting, for example, those related to the internet, which naturally did not exist in the fifties, or those which were rejected by the drafters on purpose. But for, for one reason or another, the European Court of Human Rights decided to depart from that original intention. And based on living instrument

04:28 - and changing daily, aspects of the society that we live in, it decided to recognize those right, even though the original intention was never to do so. Another, factor. Second one is the approach to construction of legal texts. So not all laws are created equal when it comes to the construction laws, which regulate the power of the government, tend to be, tend to attract a relatively narrow construction. On the other hand, laws recognizing individual rights tend

05:00 - to attract a relatively wide construction. A narrow construction naturally limits the accumulation of judgment law, while a broad construction tends to drive it, because courts do not want the protection offered to individuals to fall short of what's necessary in a given set of circumstances. Now, the third factor that the article identified was the textual basis. The more comprehensive the text of the law is, the less room there is for judge made law.

05:29 - This is because a detailed text is easier to apply than vague and generic phrases. In case of the convention, the text of its provision is relatively short and generic. More than that, it also contains plenty of vague phrases such as torture or fair hearing or private and family life. And the meaning of these phrases is not to be found in the text of the convention itself. It must be developed by the court.

05:55 - Instead, in each case, this will lead to another layer of judge made law. Now, the four factor is the concept of positive obligations. The existence of positive obligations opens a rule, a real flat gate to judge made law positive obligations. Under the European Convention, human rights were recognized since, I would say the 1970s. And they have allowed the court to extend the protection offered by the convention

06:23 - to horizontal relations between individuals themselves, as well as harm resulting from natural occurrences like disasters. But they have also rendered states liable for inaction, which drastically expands the number of scenarios over which the court has jurisdiction compared to the traditional negative rights model adopted initially in the fifties and sixties, and that that constituted the actual basis for their initial meaning of the convention.

06:54 - Now, the next, the next factor is doctrine of precedent, which requires courts generally to follow previously decided cases. And that hinders the accumulation of judgment law because it leaves no room for any new interpretation where one already exists. And this factor has traditionally had the most effect in common law jurisdictions like the US or the uk, where courts are indeed expected to follow previous decisions, almost to the latter.

07:23 - However, even in civil law jurisdictions, the idea of precedent has some persuasive value. And this is the approach taken by the European Court of Human Rights. While the court is somehow restrained by the doctrine of precedent, it still has ample room for new and creative interpretation. And that in turn contributes to the accumulation of judgment law. Another factor is the case caseload turnover.

07:49 - You can think of each case as an individual scenario, which engages various aspects of the law. Now, the more scenarios are presented to the court, the more aspects of the law are engaged, and this translates into more judgment made, lobbying generated. When it comes to the European Court of Human Rights, the caseload turnover is extremely high. In 2022, there were over 40,000 applications allocated to a judicial formation,

08:17 - and judgments were delivered in respect of over 4,000 applications. The court also has something that we called compulsory jurisdiction. In other words, it's not in the position to p to pick and choose its own caseload. anytime a case, complies with formal admissibility requirements, it has to be admitted and has to be allocated for a decision making process.

08:43 - And that is something that actually distinguishes discord from many of, supreme courts of domestic legal systems, which tend to have discretionary jurisdiction. And they can pick which cases to hear. So naturally, the more cases the court deals with to more scenarios, the law is applied, and in turn, that drives the accumulation of judge made law. Now the next factor is judicial turnover. So the more individuals pass through an institution, the more diverse the impact will be in case of court.

09:15 - The higher the number of judges passing through the court, the higher the number of divergent or contradictory opinions, and that naturally drives the accumulation of judge made law too. On the other hand, a small bench tends to be more consistent in its opinions, which limits the room for the growth of judgment law. The European Court of Human Rights is composed of 46 judges, one from each member state of the Council of Europe.

09:41 - And as of now, there have been over one 60 former judges of the court since the 1950s. So that inevitably also leads to a high, judicial turnover which turn, which translates into more and more judgment made law too. Now, the ne the next factor is, legislative inactivity. So the separation of powers principle tasked the judiciary with the interpretation of laws passed by the legislature. However, generally, anytime the legislature deems, a given interpretation to be undesirable,

10:18 - it's in the position to pass a new law which fixes the problem. If, the problem derives from a constitutional interpretation, for example, like in the us, then the only way to fix that problem is to, to pass an amendment to the Constitution. But most of the time, whenever a judgment applies to, basic legislation, it's enough for the legislature to pass a new law with, usually with a simple majority. So a legislative activity concurrent to the operation

10:49 - of the judiciary necessarily limits the accumulation of judge made law because it erases its effect through the passes of new legislation whenever deemed desirable. On the other hand, a lack of legislative activity leads to courts stepping in and filling that void with judicial lawmaking. And within the European Convention Human Rights System, the activity of legislature is virtually non-existent, and there is no mechanism for the limitation of the effects

11:19 - of any judgment of the European Court of Human Rights other than the treaty amendment. And amending an international treaty involves much more complex and demanding process compared to passing simple domestic legislation. So just for the simple reason that there is nothing really counterbalancing the European Court of Human Rights as part of the separation of powers, that also the accumulation of judge made law. Now the next one,

11:48 - the next factor identified in the article is the interstate jurisdiction. So although the vast majority of cases brought before the European Court of Human Rights are brought by individuals, the court also has jurisdiction to adjudicate violations of the convention rights through a system of interstate adjudication. So one state suing another state, presumably on behalf of a citizen or set of citizens who have been somehow wronged.

12:16 - But historically, this path has never been popular. And at the end of 2022, there were only 16 interstate cases pending before the court. And although it seems like a very tiny fraction of over, you know, 40,000 cases admitted pay, yeah, it's actually quite important and has a significant impact on the judicial lawmaking at the court because these interstate cases generally concern conflict, most of them now concerns,

12:47 - the ongoing conflict between Ukraine and Russia, but also previous conflicts between Russia and Georgia, for example. And, since the basis of that jurisdiction is an armed conflict, the body of law that is to be applied is actually the something that we call international humanitarian law. So law regulating the conduct of, military activities between various sites, and that law is quite separate to the general body

13:15 - of human rights, which is the bread and butter of the European Court of Human Rights. So this seemingly, you know, insignificant interstate jurisdiction is actually a gateway to a brand new body of law, which the court has to apply. And of course, a new, a brand new body of law, being applied to the European Court of Human Rights means a brand new set of judicially made, generated law, not the last factor that the article

13:46 - identified is the, is the autonomous meaning the doctrine of autonomous, meaning the European Court of Human Rights, unlike domestic courts, really, it must deal with a wide variety of different legal systems. They all employ different definitions which affect the scope of application of legal rules. So in order to accommodate that situation, the court has developed the principle of autonomous meaning whereby different concepts mentioned in the convention are given the same meaning across all legal systems in

14:17 - Europe, regardless how, how they are being defined domestically. So those concepts such as, for instance, the term home or family life or criminal charge or witness, they are all given the same meaning across the whole continent, under the jurisprudence of the European Court of Human Rights, even though, for example, the legal system of the UK or Germany might define them slightly differently. and that doctrine inadvertently also contributes

14:50 - to the accumulation of judge made law because the court developed its own jurisprudence concerning each relevant concept, rather than simply just borrow the meaning of those concepts from existing legal systems. And each such concepts actually adds another layer of judge made law. And these are the 10, 10 factors which the article actually identified. And I think they all actually contribute to the, that,

15:16 - that acceleration of the accumulation of judgment law at the European Court of Human Rights. So the biggest break on the accumulation of judgment law at the European Court of Human Rights is the principle of subsidiarity. That principle generally does not exist in domestic legal system at the most basic level. the principle of subsidiarity means that decisions should be made at the lowest level possible, and that that principle has some applications outside

15:45 - the realm of legalities too. It could be a political principle too, but within the context of the European Court of Human Rights, that principle means that the protection of the rights contained in the convention is first and foremost effectuated by domestic authorities and domestic courts. So your legal courts relatively close to where you live, are the first and foremost, carriers of that function of actually protecting your convention rights.

16:14 - And the court in Strassburg, is just the matter of last resort. And that principle has multiple manifestations in the convention systems. Procedurally, the principle of subsidiarity means that complaints cannot be brought before the European Court of Human Rights unless all domestic remedies have already been exhausted. So you have to go through all the domestic legal system, stages, go through your local court up

16:43 - until the Supreme Court of the country you live in, and only then you can actually go to Strasburg. Furthermore, under the fourth instance doctrine, which is part of that idea of subsidiarity, the European Court of Human Rights generally does not question findings of fact or law in terms of the domestic meaning, that is being rendered by national courts. in that process of going through the various stages of the domestic legal authorities

17:10 - before you can go to Strasburg. So anytime your, your local domestic court renders an interpretation of domestic law or establishes that something has happened or has not happened, that finding will likely be binding on the European Court of Human Rights unless the court finds it manifestly unreasonable. Now, in terms of the substantial side of the principle of subsidiarity, it means that states enjoy a certain margin

17:38 - of appreciation in gray zone areas. It could be said that both procedural and substantive subsidiary radically limits, the ability of the European Court of Human rights to generate judgment made law. And that's why, the article calls that the biggest break on the acceleration of judgment made law. now it is worth mentioning that the principle of Subsid

18:13 - has recently been undergoing a expansion too. So at least since the conferences in Interlachen in 2010 and Brighton in 2012, the 10 subsidiarity is now being added to the text of the convention for the first time. And that push, for new and robust version of subsidiarity is now transforming the review performed by the European Court of Human Rights from substantive towards

18:40 - more procedural in nature. So these days, the court is somewhat reluctant to interfere with the outcome of the balancing of competing human rights interest that is generally being performed, by domestic courts before you actually get to the Strasburg phase. so long as that, competing of various interests is being conducted in light of the European court's jurisprudence. And, what else should be,

19:11 - emphasized at this point is that deference is also given to national, legislatures when they give a proper consideration to the balancing of competing interest when passing legislation in the first place. So if there is some kind of, bill on the agenda of parliament and that bill is being discussed properly, and, various stakeholders are being invited to say whatever they think, this is or should be, and that process is very thorough and, and, takes into account various interests,

19:45 - the more thorough that process is, the more reluctant the European Court of human rights will be to interfere with the outcome of that, legislation process. And this modern version of subsidiarity severely restricts the ability of the European Court of Human rights to generate judgment made law because the court no longer sets substantive legal standards, but rather performs just a review of judicial processes conducted by domestic courts,

20:13 - which are being conducted in reference to the standards set by the European Court of Human Rights in the past. I think the functioning of the European Court of Human Rights is probably really best understood in the context of judicial lawmaking rather than judicial activism. And judicial lawmaking exists in all legal jurisdictions and is simply unavoidable. It just so happens that when it comes to the European of human rights, the interplay relevant happens to overwhelmingly accelerate the,

20:46 - I wanna say at the end that, I think there are good reasons to believe that, the jurisprudential output of the European Court of Human Rights has already peaked. So, despite the fact that, that we talk, the article talks a lot about the acceleration of judicial lawmaking, I think it's fair to say that we have already passed the point when that, that output has already peaked. And the main reason for that,

21:15 - well, a couple of reasons really. the first one is the fact that Russia is no longer part of the convention system. And, prior to the departure, they were responsible for approximately 13% of judgment issued by the court, which was one of the highest number for all member states. So just for that simple reason that, the court has no longer jurisdiction over I think like 140 million citizens of Russia, that is one of the main reasons why its output has probably,

21:44 - already peaked. Now, the second big reason is the newly reinforced principle of subsidiarity, which I have already explained. So the court is now more engaged in procedural review rather than setting substantive standards. so now the burden of judge made law related to the convention is like gradually shifting from Strasberg towards domestic courts. And then finally, there's again, this old question of the administrative capacity of the court to continue

22:15 - to process so many applications pay, yeah, I mean, it's not a new problem. the very same problem led to the transformation of the court in the 1990s when, the Council of Europe was expanding and new countries in central and Eastern Europe was to join the court. And at that point, the court was still a part-time institution, so it had to transform into a full-time institution. Otherwise it was just simply not possible to carry on with,

22:42 - increased number of applications. But now we have a full-time institution, and we face pretty much the same problem. And that problem is not really based on the, accession of new states, the to the system, but more, I think it has been said many times before, but it's, it's worth repeating that the court is really a victim of its own success. Like, just given the, the reputation that the court has, gathered over the decades

23:13 - of being relatively successful and, arguably the most successful, human rights court of law worldwide. and now there's pretty much everyone in Europe knows what, either European court of human right is, and just for that reason, people are more and more inclined to, keep sending their complaints to the, to the stress by court. And, I think more and more people actually, discuss this idea

23:41 - that this cannot continue that way forever. Because At this point we are facing, it's not uncommon for an application sent to Strasberg to take up to 10 years to be resolved. And I think everyone has the sense that, this is just not right and something has to do, be, has to be done about it. but well, we'll, we'll see what it goes from there. I think the jurisprudential output has already peaked, but that being said,

24:10 - we don't know what's gonna happen next. So to sum up, well there are some good reasons for the European Court of Human Rights to have generated large quantities of judgment made law since the 1970s. not necessarily due to activism, but just, just, as a function of the different factors playing out in that jurisdiction. the court is now probably on.

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