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
• Pages: 160-185

2020

Bart van der Sloot

160

2

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

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

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

1

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

2020

161

2

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.

2

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.

3

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,

11.V.1994.

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.