The Quality of Law: How the European Court of Human Rights gradually became a European Constitutional Court for privacy casest

Author:Bart van der Sloot
Position:Associate Professor, Tilburg Law School
Bart van der Sloot
The Quality of Law
How the European Court of Human Rights gradually became a
European Constitutional Court for privacy cases
by Bart van der Sloot*
© 2020 Bart van der S loot
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Recommended citation: Ba rt van der Sloot, The Quality o f Law, 11 (2020) JIPITEC 160 para 1
Keywords: ECtHR; Article 8 ECHR; Rule of Law; Quality of Law; Minimum Requirements of Law
good law-making. That is, until recently. Propelled by
cases revolving around mass surveillance activities,
in just a small number of years, the Court has un-
dergone a revolutionary transformation and now for-
mally assesses the quality of Member States’ laws
and even advises Member States’ legislative branch
on how to amend its legal system in order to be Con-
vention-compliant. Doing so, it has gradually turned
into a European Constitutional Court, in particular for
privacy cases.
Abstract: Until very recently, the European
Court of Human Rights was willing to assess whether
Member States’ executive branch had operated on a
legal basis, whether national courts had struck a fair
balance when adjudicating cases, and whether Mem-
ber States had a positive obligation to ensure ade-
quate protection of citizens’ human rights. One thing
it did not assess however, was whether Member
States’ legislative branch had respected the principles
of the rule of law and the minimum requirements of
A. Introduction
Although initially, both states and individuals
(natural persons, groups and legal persons) could
submit a complaint under the European Convention
on Human Rights (ECHR), the latter category could
do so only with the former European Commission
on Human Rights (ECmHR). The Commission could
declare a case admissible or inadmissible but could
not judge on the substance of the matter, a task which
was left to the European Court of Human Rights
(ECtHR). Even if a case brought by an individual was
declared admissible, it could only be put before the
Court by the Commission or by one of the Member
States, not by the individual herself. This ensured
that not every case in which an individual’s private
interest had been harmed would be assessed by the
Court, but only those cases that the Member States
or the Commission felt had a broader signicance,
transcending the mere particularities of the
claimant’s case, therewith also addressing the fear
of ‘shoals of applications being made by individuals
who imagine that they have a complaint of one kind
or another against the country.’1 However, over time,
the Convention has been altered so that individuals
can also bring cases directly before the Court when
they have been declared admissible.2 In addition,
* Associate Professor, Tilburg Law School.
1 A. H. Robertson, Collected edition of the “Travaux préparatoires”
of the European Convention on Human Rights / Council of Europe
(vol II, Martinus Nijhoff, 1975-1985) 188.
2 Protocol No. 9 to the Convention for the Protection of
Human Rights and Fundamental Freedoms Rome, 6.XI.1990.
The Quality of Law
4 For more than 50 years, this has been the standard
interpretation of the Convention. This makes it all
the more remarkable that a fundamental revolution
has materialised in just a small number of years. This
article will discuss how that revolution has enfolded.
First, it will discuss the choices made by the authors
of the Convention on this point and the discussions
over the role and position of the ECtHR when
drafting the ECHR (section B). Subsequently, this
article will show how a rather old doctrine, namely
that laws should be accessible and foreseeable,
was gradually turned into a tool that allows the
ECtHR to assess the quality of laws and policies of
Member States, especially in privacy-related matters
(section C). This article will explain that this doctrine
was developed in cases in which applicants could
substantiate having been harmed individually and
directly, not by the existence of a law or policy as
such, but by its application in their specic case.
Late 2015, however, the ECtHR made a next step by
accepting an in abstracto complaint, and it has done
so two more instances since.
These cases concern mass surveillance activities by
national states. Because in these cases, the ECtHR
cannot assess whether in the concrete matter of the
case, the executive or judicial branch has struck a
fair balance between different competing interests,
it accepts that the only relevant test it can deploy
is to evaluate the quality of laws and policies as
such. Although it is still very hesitant in doing so, it
is willing to assess in detail whether national laws
abide by a long list of minimum requirements of
law (section D). This radical shift is supported by
a number of developments, such as that the Rules
of the Court have been altered so as to allow the
Court, when it has established a violation of the
Convention, not only to grant compensation to
the victims directly affected, but also to order the
legislative branch of a Member State to alter its laws
(section E). Finally, the analysis will reect on the
signicance of this revolution and what it may mean
in time for both the position of the ECtHR and the
protection of human rights (section F).
B. Drafting the Convention, or
how the authors of the ECHR
eventually favoured democracy
over the rule of law
5 To understand the signicance of the willingness of
the European Court of Human Rights to scrutinise
the legislative branch of the Member States of the
Council of Europe, it is important to go back to the
time when the European Convention on Human
Rights was drafted. It was in the wake of the Second
World War, in which regimes that had disregarded
inter-state complaints play no role of signicance3
and although the Convention formally allows groups
and legal persons to issue a complaint, in practice,
groups are denied that right by the Court4 and it is
very hesitant to allow legal persons to rely on certain
human rights, such as the right to privacy.
Importantly, the Court has made clear that in
principle, natural persons can do so only when
their claim concerns the protection of their own,
private interests. So-called in abstracto claims, which
revolve around the legitimacy of a law or policy
as such, are as a rule inadmissible; a priori claims
are rejected as well, because the Court will only
receive complaints about injury which has already
materialized; and the ECtHR will also not receive
an actio popularis, a case brought by a claimant, not
to protect its own interests, but those of others
or of society as a whole. As an effect, by far most
cases before the Court concern the executive and
the judicial branch of Member States and how they
have acted in concrete cases. Although the Court
has also been willing to nd that a state is under
a positive obligation to provide protection to the
human rights of a claimant, it is important to note
that even in these types of cases, the ECtHR will not
hold that the Member State should change its laws,
but only that in the specic case of the applicant, the
state should have done more to provide adequate
protection of her human rights or should have made
an exception to the prevailing laws and policies in
her specic case.
Even where, for example, a Member State’s law
allowed prison authorities to structurally monitor
the correspondence of prisoners, the Court would
not hold that the law or policy should be altered or
revoked, but merely stress that in the specic case
of the applicant, her human rights were violated by
the unlawful actions of the executive branch.5
Protocol No. 11 to the Convention for the Protection of
Human Rights and Fundamental Freedoms, restructuring
the control machinery established thereby. Strasbourg,
3 Which is signicant because inter-state complaints
typically regard general matters such as whether Hungary
is undermining the rule of law, whether Turkey was
justied in invoking the state of emergency or whether
Russia systematically discriminates against LGBTQ people.
4 Only individuals who claim to have been harmed by the
same fact can bundle their complaints.
5 See e.g.: ECtHR, Drozdowski v. Poland, application no.
20841/02, 06 December 2005.

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