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Masterproef Athina Van Melkebeke

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Masterproef Athina Van Melkebeke Faculteit Rechtsgeleerdheid Universiteit Gent Academiejaar 2012-2013 THE ROLE OF EUROPEAN CONSENSUS IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS Masterproef van de opleiding ‘Master in de rechten’ Ingediend door Athina Van Melkebeke (studentennr. 00805795) Promotor: prof. dr. Y. Haeck Co-Promotor: L. Stevens Commissaris: A. Van Pachtenbeke Faculty of Law Ghent University Academic Year 2012-2013 THE ROLE OF EUROPEAN CONSENSUS IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS Master’s dissertation to qualify as ‘Master of laws’ Written by Athina Van Melkebeke (Student number 00805795) Promoter: prof. dr. Y. Haeck Co-Promoter: L. Stevens Commissioner: A. Van Pachtenbeke Preface “Hinderlagen liggen daar, voor hinden klaar” (Jotie T’Hooft) “While I'm writing, I'm far away; and when I come back, I've gone” (Pablo Neruda) Choosing to write a Master’s dissertation entitled “The role of European consensus in the jurisprudence of the European Court of Human Rights” was a hostage to fortune. I am aware that one could do several years of research and write an entire book on the subject of this dissertation. Therefore, I would like to stress that I have limited my research and text within the bound of what was manageable over a span of two years. It has been my intention that any reader who has a basic knowledge of European human rights law can read and comprehend this dissertation. Therefore, at the outset, I tried to briefly indicate at which point European consensus plays a role in the European Court of Human Rights’ jurisprudence. This Master’s dissertation would not have seen the light of day without the help of several individuals. First of all, I have had the luck to be taught European human rights law by professor dr. Yves Haeck and professor dr. Johan Vande Lanotte, who were able to raise my great interest in human rights law. This interest resulted in contacting professor Haeck and choosing the topic that would haunt my head for the next two academic years. It is with great pleasure that I look back on corresponding with and talking to professor Haeck about this dissertation’s topic. Although I spent one of the two years that I was writing this thesis on exchange at the University of Neuchâtel in Switzerland, he offered me the best possible guidance from a distance. Further, I have had the great pleasure and privilege of interviewing the former Vice-President of the Court, professor dr. Françoise Tulkens. Her comments were invaluable in order for me to understand the use of consensus from the viewpoint of the Court. I would also like to thank Ms. Tulkens’ assistant, Ms. Sylvie Ruffenach, who arranged the interview. I was pleased to talk to and correspond with dr. Kanstantsin Dzehtsiarou, who has written multiple contributions on the subject of this dissertation in the framework of his Ph.D. thesis. He provided me with invaluable sources and was willing to collaborate with regard to the continuation of his statistical research, which was vital for this dissertation. I Ms. Genevieve Woods, the European Court of Human Rights’ Deputy of the Library deserves to be mentioned here as well, as she elucidated the comparative law method applied by the Court. I am also grateful to Lieve Stevens, who has read and commented parts of this dissertation. I am further lucky to count Len Vandenheede among my oldest friends, as he familiarised me with the general principles of statistics. I consider this work as the icing on the cake after five years of studying law. I developed myself as a person and as a lawyer. I have explored my interests and can conclude that human rights will always play an important role in redeeming my ambitions. During the course of my legal studies, I have always been able to count on the invaluable support of my mother and father, Carmen De Buysscher and Peter Van Melkebeke, wherefore I will be grateful forever. My most heartfelt thanks finally goes out to Tristan Verminck, who provided me with some critical comments after proofreading this dissertation and who reminded me of my ideals at crucial times. Writing this preface is where the story of European consensus ends for me, and where it begins for you. I hope you will enjoy it. II Table of contents PREFACE ..................................................................................................................................................... I TABLE OF CONTENTS .......................................................................................................................... III 1. INTRODUCTION ................................................................................................................................. 1 2. RESEARCH: SCOPE AND METHOD .............................................................................................. 3 2.1 CONSENSUS: A VERSATILE CONCEPT .......................................................................................... 3 2.1.1 The subsidiarity principle .................................................................................................... 3 2.1.2 The interpretation – application dichotomy ........................................................................ 3 2.1.3 Consensus as a pawn in the interpretation and application process .................................. 4 2.1.4 Consensus as a multidimensional method ........................................................................... 4 2.2 DELIMITATION OF RESEARCH ..................................................................................................... 5 2.2.1 Definition ............................................................................................................................. 5 2.2.2 Impeachment of the comparative approach ........................................................................ 5 2.2.3 No typology of applications ................................................................................................. 5 2.2.4 Typology of dimensions ....................................................................................................... 5 2.2.5 Rationale .............................................................................................................................. 5 2.2.6 Evolutive interpretation and margin of appreciation .......................................................... 6 2.2.7 Trend analysis ..................................................................................................................... 6 2.2.8 Criticism .............................................................................................................................. 6 2.3 METHOD ..................................................................................................................................... 6 3. DEFINING CONSENSUS .................................................................................................................... 8 4. HOW THE COURT DETECTS CONSENSUS ............................................................................... 13 4.1 THE COMPARATIVE LAW FLAW ................................................................................................. 13 4.2 THE STRASBOURG JUDGE AS AN ALLROUND COMPARATIST .................................................... 13 4.3 WHO’S WHO? ............................................................................................................................ 14 4.4 LEGAL BASIS FOR COMPARISON ............................................................................................... 15 4.5 SPOTTING CONSENSUS IN INTERNATIONAL TREATIES AND REGIONAL LEGISLATION .............. 15 4.6 COMPARISON AND COMPARATIVE LAW: TRIAL AND ERROR .................................................... 15 4.6.1 The comparison formula .................................................................................................... 16 4.6.1.1 The Good: X and Others v. Austria ........................................................................................................... 16 4.6.1.2 The Bad: Leyla Şahin v. Turkey ................................................................................................................ 19 4.6.1.3 And the Ugly: Cossey v. the United Kingdom .......................................................................................... 20 4.7 COMPARATIVE LAW VS. DESCRIPTIVE COMPARATIVE LAW ..................................................... 22 4.8 GLANCING AT THE FUTURE ....................................................................................................... 23 5. TYPOLOGY OF CONSENSUS ........................................................................................................ 25 5.1 DOCTRINAL EVOLUTION ........................................................................................................... 25 5.2 PRESENCE AND ABSENCE OF CONSENSUS ................................................................................. 25 5.2.1 Odièvre v. France .............................................................................................................. 26 5.2.2 Evans v. the United Kingdom ............................................................................................ 26 5.3 TYPOLOGY ................................................................................................................................ 27 5.3.1 Consensus between the Contracting States ....................................................................... 27 5.3.1.1 The Sunday Times v. the United Kingdom ...............................................................................................
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