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    Human Rights Law Review 9:1 The Author [2009]. Published by Oxford University Press.

    All rights reserved. For Permissions, please email: [email protected]

    doi:10.1093/hrl r/ngn033 Advance Access p ublication 20 January 2009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    Separate opinions in the

    European Court of Human

    Rights

    Robin C.A.White* and Iris Boussiakou**

    Abstract

    Separate opinions, both concurring and dissenting, have been a feature

    of judgments of the European Court of Human Rights since its

    earliest days, but detailed studies of their incidence and impact have

    until recently been sparse. This article, based on an AHRC-funded

    research study, offers a survey of the research literature and describesthe outcome of its own consideration of such opinions. The use of

    separate opinions in the European Court of Human Rights is significant,

    but the incidence of sole dissents by national judges is very low.

    It would appear that the main determining factor in the writing of

    a separate opinion is judicial temperament. There is some evidence

    that the background of judges prior to their election to the Court

    has some influence on their approach to writing separate opinions. The

    Court, however, demonstrates high levels of collegiality and the use of

    separate opinions contributes to the transparency of its decision-

    making.

    1. Context

    The European Court of Human Rights (the Strasbourg Court or Court) sits at

    something of a crossroads. It is widely recognised as having features of a

    constitutional court. The Strasbourg Courts judgments recognise that the

    Court now exercises constitutional functions for the Member States of

    the Council of Europe. In the Loizidou Case, the Court famously described the

    *Professor of Law, The University of Leicester ([email protected]).**Sometime Research Associate, The University of Leicester.

    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

    Human Rights Law Review 9:1(2009), 37^60

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    Convention as a constitutional instrument of European public order.1 Perhaps

    significantly, that formula has been repeated only once or twice in subsequent

    cases; and seemingly only once in a judgment of the Court.2 The former

    President of the Strasbourg Court is on record as describing it: pretty muchas a European constitutional court.3 Elsewhere, he says:

    Whether the European Court of Human Rights is itself a Constitutional

    Court is largely a question of semantics. We can always call it a

    quasi-Constitutional Court, sui generis.4

    Yet currently the Strasbourg Court does not select the cases upon which it

    adjudicates, as constitutional courts commonly do. Once a case is declared

    admissible,5 there will be a determination by a Chamber or Grand Chamber of

    the Court on the merits. It is the authors thesis that the form of judgments is

    related to the function of a court; there is therefore likely to be a relationship

    between a propensity to write separate opinions in the Strasbourg Court and

    the perception by judges of its role.

    Article 45 of the European Convention on Human Rights provides that rea-

    sons must be given for judgments, and in the second paragraph goes on to say:

    If a judgment does not represent, in whole or in part, the unanimous

    opinion of the judges, any judge shall be entitled to deliver a separate

    opinion.6

    1 Loizidou v Turkey (Preliminary O bjections) A 310 (1995); 20 EHRR 99 at para. 75.2 Bosphorus Airways v Ireland2005-IV; 42 EHRR 1 at para. 156. See also the concurring opinion

    of Judge Jambrek in Fischer v Austria A 312 (1995); 20 EHRR 349; and the partly dissentingopinion of Judge Martens, joined by Judge Foighel in Ahmet Sadik v Greece 1996-V; 24 EHRR323.

    3 Bruinsma and Parmentier, Interview with Mr Luzius Wildhaber, President of the ECHR,(2003) 21 Netherlands Quarterly of Human Rights 185 at 185.

    4 Wildhaber, A Constitutional Future for the European Court of Human Rights?, (2002) 23Human Rights Law Journal

    161 at 161. See also Wildhaber, Address to Conference on the posi-tion of constitutional courts following integration into the European Union, 30 September2004, where he describes the Strasbourg Court as having many things in common with theConstitutional Courts of the European continent. See also Alkema, The EuropeanConvention as a constitution and its Court as a constitutional court, in Mahoney et al. (eds),Protecting Human Rights: The European Perspective. Studies in Memory of Rolv Ryssdal(Cologne/Berlin/Bonn/Munich: Carl Heymans Verlag, 2000) at 41; Schermers, A EuropeanSupreme Court, in Mahoney et al. (eds), Protecting Human Rights: The European Perspective.Studies in Memory of Rolv Ryssdal (Ko ln: Heymanns 2000) at 1271; and Greer, The EuropeanConvention on Human Rights. Achievements, Problems and Prospects (Cambridge: CambridgeUniversity Press, 2006) especially at 167^92.

    5 And overall something like 96^98 per cent of applications fail at the admissibility hurdle.In 2007, the Court disposed of 27,057 applications by a decision on admissibility, and 1,735

    by judgment on the merits, of which 17 were by judgment of the Grand Chamber. Of the judg-ments, 32 were friendly settlements. In addition 13,413 applications were disposed of adminis-tratively: Council of Europe, Annual Report 2007 of the European Court of Human Rights(Strasbourg: Council of Europe, 2008) at 134 and 137.

    6 The use of the termseparate opinions in this article refers to both concurring and dissentingopinions.

    38 HRLR 9 (2009), 37^60

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    Rule 74(2) of the Rules of Court provides:

    Any judge who has taken part in the consideration of the case shall

    be entitled to annex to the judgment either a separate opinion,concurring with or dissenting from that judgment, or a bare statement

    of dissent.

    The purpose of giving reasoned judgments may seem obvious in a modern age,

    and we now take for granted the offering of an explanation for the result

    which has been reached.7 The system set in place by the European

    Convention on Human Rights for judicial decision-making adopted8 a variant

    of the common law tradition of permitting multiple opinions in contrast to

    the civil law tradition of delivering a single reasoned opinion, and permitting

    no separate opinions, the latter being the system that is more often, though

    not universally, met in constitutional courts.9 It is, however, important to

    recognise that there is a judgment of the Court10 to which are annexed sepa-

    rate and dissenting and concurring opinions.11 Although the ability to annex

    a separate opinion is expressed in the Convention as permissive,12 the tradition

    of the Strasbourg Court is very much that those dissenting will file an opinion

    setting out the reasons for their dissent. Equally, many judges clearly take the

    view that differences in reasoning which lead to the same conclusion as that

    of the Court in its judgment should also be articulated.The capacity of the Strasbourg Court to cope with the volume of applica-

    tions it receives has increasingly been called into question. Protocol No 14

    was adopted in order to provide some breathing space by making more

    efficient use of the judicial resources of the Court. But entry into force of that

    Protocol has been stalled by the persistent failure of the Russian Federation to

    ratify it. That situation does not look to have an early resolution.13

    The Protocol included the controversial addition to the admissibility

    criteria, which could be viewed as the beginnings of a move towards selection

    of cases for determination on the merits other than by reason solely of

    7 See generally, Schauer, Giving Reasons (1994^5) 47 Stanford Law Review633.8 Adopting the same approach as that in the International Court of Justice.9 Contrast, for example, the practice of the European Court of Human Rights with that of the

    Court of Justice of the European Communities, which delivers a single judgment of the Court.10 What would be described in the domestic courts of the United Kingdom as a composite

    judgment.11 For more detailed comment on the form of judgments in the Strasbourg Court, see White,

    Judgments in the Strasbourg Court: Some Reflections, in Andenas and Vogenhauer (eds),A Matter of Style? The Form of Judgments in the United Kingdom and Abroad. Essays in Honourof Lord Bingham of Cornhill (Oxford: Hart Publishing, forthcoming).

    12 Article 45(2) ECHR provides that any judge shall be entitled to deliver a separate opinion.13 Caflisch, The reform of the European Court of Human Rights: Protocol No 14 and beyond,

    (2006) 6 Human Rights Law Review403.

    Separate opinions in the ECHR 39

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    matters relating to admissibility. Article 12 of the Protocol amends Article 35(3)

    ECHR to read:

    The Court shall declare inadmissible any individual applicationsubmitted under Article 34 if it considers that:

    . . .

    b the applicant has not suffered a significant disadvantage, unless

    respect for human rights as defined in the Convention and the Protocols

    thereto requires an examination of the application on the merits and

    provided that no case may be rejected on this ground which has not

    been duly considered by a domestic tribunal.

    Article 20 of the Protocol provides:

    In the two years following the entry into force of this Protocol, the new

    admissibility criterion may only be applied by Chambers and the Grand

    Chamber of the Court.14

    Because the Court sits in Chambers of seven or Grand Chambers of seven-

    teen to consider the merits of cases and, where violations of the Convention

    are found, issues relating to just satisfaction, considerable judicial resources

    are devoted to judgments in such cases. Does the ability to annex a dissenting

    or concurring opinion to the judgment of the Court assist or detract from theefficiency of judicial decision-making, and what contribution does it make to

    the case law of the Strasbourg Court when it is only the judgment of the

    Court which carries authority?15 Is the only way forward for the Strasbourg

    Court to move to a system under which it selects the cases whose merits it

    considers, thus applying judicial resources more efficiently to major questions

    of the development of Convention rights? It is in this context that a research

    project into separate opinions in the Strasbourg Court was undertaken.

    2. The Research Project

    This article summarises some of the findings from a two year Arts and

    Humanities Research Council funded research project exploring separate opin-

    ions over the six calendar years 1999^2004.16 The years chosen represent

    14 And not by single judges or committees determining such matters. The explanatory memor-andum to the Protocol says, This rule recognises the need to develop case-law on the inter-pretation of the new criterion before the latter can be applied by single-judge formations or

    committees.15 Article 46(1) ECHR provides: The High Contracting Parties undertake to abide by the final

    judgment of the Court in any case to which they are parties. On the system of precedent inthe Strasbourg Court, see Wildhaber, Precedent in the European Court of Human Rights, inMahoney et al., supra n. 4 at 1529.

    16 Referred to in this article as the Leicester Study.

    40 HRLR 9 (2009), 37^60

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    the first six full calendar years of the operation of the permanent Court estab-

    lished under Protocol 11.17 The research project has involved the construction

    of a database of all judgments of the Strasbourg Court for the six-year period

    in which key information about the case and about the frequency and type ofseparate opinion has been stored. Additionally, information about the composi-

    tion of the Court, the issues raised in the case, and the outcome has also been

    stored.18 Just under 4,000 judgments have been entered into the database.

    Following the construction of the database, some quantitative analysis took

    place followed by some qualitative analysis of the outcomes, as well as struc-

    tured interviews with judges at the Strasbourg Court. The intention was to

    examine patterns of the use of dissents and concurring opinions, and their

    contribution to the development of the case law of the Strasbourg Court. The

    Leicester Study, however, is not the first study of the use of concurring and dis-

    senting opinions, and, therefore, we also conducted a literature review of

    other work touching on the issues we were investigating. Much of the discus-

    sion of the propensity to write concurring or dissenting opinions has been

    linked to judicial activism and judicial restraint. What do these terms signify

    in the context of decision-making in the Strasbourg Court?

    A. Judicial Activism and Judicial RestraintThis issue of judicial activism in the Strasbourg Court is closely linked to

    the repeated recognition by the Strasbourg Court that the Convention is a

    living instrument which must be interpreted in the light of present day

    conditions and not simply limited to what was in the minds of the drafters of

    the Convention.

    In the Tyrer Case,19 the Court said [t]he Court must also recall that the

    Convention is a living instrument which, as the Commission rightly stressed,

    must be interpreted in the light of present-day conditions.20 A HUDOC21

    search reveals that the phrase the Convention is a living instrument has

    been used in 28 cases.22 The requirement that the Convention is interpreted

    17 It had been hoped to include the calendar year 2005, but the volume of cases and the highincidence of non-unanimous judgments precluded this.

    18 The construction of the database proved to be a bigger task than anticipated because of themany variables which we wished to include in order to be able to interrogate the databasewith a view to extracting information about judicial behaviour in the Strasbourg Court. Thedatabase of all judgments (including friendly settlements and strikings out) was constructedby Dr Iris Boussiakou, as research associate on the project. The database can be found at:https://lra.le.ac.uk/handle/2381/1405 [last accessed 13 November 2008].

    19 Tyrer v United Kingdom A 26 (1978); 2 EHRR 1.20 Ibid. at para. 31.21 See: http://echr.coe.int/echr/en/hudoc [last accessed 13 November 2008].22 Most recently in EB v France 47 EHRR 21 at para. 92, and Saadi v United Kingdom 47 EHRR 17

    at para. 55 where the Court said: [The Convention] . . . had to be interpreted in a mannerwhich ensured that rights were given a broad construction and that limitations were

    Separate opinions in the ECHR 41

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    as a living instrument means that it has to be given something of an activist

    interpretation. The Convention could not be a living instrument if its interpre-

    tation remained static; the content of the Convention rights will change

    over time. Most, but not all, commentators consider that this change mustalways operate to enhance the content of human rights.23

    Judicial activism is a label used to refer to a judicial approach which seeks to

    extend or modify existing law especially in cases where policy choices are

    before the Court, while judicial restraint is a label used to refer to a judicial

    approach which focuses upon the judge applying existing case law and

    avoiding developing the law beyond its clearly established parameters. It is

    sometimes suggested that judicial activism takes the judge into the realm

    of the policy-maker, while judicial restraint recognises the separation of

    law-maker and law-applier. Mahoney comments:

    Judicial activism raises the spectre of judges illegitimately enlarging their

    role in society to one of legislating on general policy matters and

    of exceeding their given functions of interpretation, whereas judicial

    self-restraint carries the risk of judges abdicating their responsibility of

    independent review of governmental action.24

    Mahoney argues:

    The conclusion of the present study is that, as far as the EuropeanConvention on Human Rights is concerned, the dilemma of activism

    versus restraint is more apparent than real, in that activism and restraint

    are complementary components of the methodology of judicial review

    inherent in the very nature of the Convention as an international treaty

    intended to secure effective protection of human rights and fundamental

    freedoms.25

    The role of the Strasbourg Court is to interpret and apply the Convention.26

    The open texture of many of the provisions of the Convention has required

    choices to be made by the Court in adding substance to the text of the

    Convention. In some cases, the position of the Court changes over time, reflect-

    ing the nature of the Convention text as a living instrument to be interpreted

    narrowly construed, in a manner which gave practical and effective protection to humanrights, and as a living instrument, in light of present day conditions and in accordance withdevelopments in international law so as to reflect the increasingly high standard beingrequired in the area of the protection of human rights. A HUDOC search reveals that thephrase a living instrument has been used in 47 cases.

    23 See discussion in Mahoney, Judicial Activism and Judicial Self-Restraint in the EuropeanCourt of Human Rights: Two Sides of the Same Coin, (1990) 11 Human Rights Law Journal57, at 66^8.

    24 Ibid. at 58.25 Ibid. at 59.26 Article 32(1) ECHR.

    42 HRLR 9 (2009), 37^60

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    in its present day context rather than being stuck in the early 1950s.27 Clearly

    such a context is likely to generate differences of opinion among the

    Strasbourg Courts judiciary.

    The nature of the Convention as a living instrument is closely linked to thedoctrine of the margin of appreciation, according to which the Strasbourg

    Court defers to the assessment of circumstances and of permissible limitations

    to Convention rights by the Member States in determining whether there has

    been a violation of the Convention.28 This too is a common source of disagree-

    ment among judges at the Strasbourg Court. One leading study of the margin

    of appreciation concludes:

    The margin of appreciation must be understood as an essential constitu-

    tional device designed to preserve the fundamental prerequisite andvirtue of a liberal democratic society: value pluralism. The doctrines

    only defensible rationale during and after the process of integration is to

    enable the Strasbourg Court to provide endorsement of the maintenance

    of cultural diversity, ensuring to the citizens of Europe the means to

    articulate and practice their preferred values within a multi-cultural

    democracy.29

    But the margin of appreciation doctrine cannot be an excuse for abdication of

    responsibility in deciding difficult cases on the interpretation and applicationof the Convention. Happily the case law of the Strasbourg Court over the

    years shows more examples of courageous extension of human rights than

    capitulation to national preferences.

    It is the articulation of the reasoning of the Strasbourg Court in the clearly

    identified judgment of the Court, coupled with annexed dissenting and concur-

    ring opinions which enables the reasoning of individual judges to be identified.

    The Strasbourg Court would therefore appear to fall into what Lasser describes

    as the publicly argumentative model.30 The Courts judgments identify the judi-

    ciary deciding the case, and contain factual, procedural and interpretativeexplanations, including summaries of, and responses to, the arguments of the

    parties and any interveners. The explanations provided show the parties how

    27 The most commonly given example is the development of the case law on the gender identityof transsexuals, which culminated in the judgments of the Grand Chamber in Goodwin vUnited Kingdom 2002-VI; 35 EHRR 447; and I v United Kingdom 2002-VI; 36 EHRR 967.

    28 See generally Yourow, The Margin of Appreciation Doctrine in the Dynamics of European HumanRights Jurisprudence (Dordrecht: Martinus NIjhoff, 1996); Arai-Takahashi, The Margin ofAppreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR(Antwerp: Intersentia, 2002); McHarg, Reconciling Human Rights and the Public Interest:

    Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Courtof Human Rights, (1999) 62 Modern Law Review 671; and Letsas, Two Concepts of theMargin of Appreciation, (2006) 26 Oxford Journal of Legal Studies 705.

    29 Arai-Takahashi, ibid. at 249.30 Lasser, Judicial Deliberations. A Comparative Analysis of Judicial Transparency and Legitimacy

    (Oxford: Oxford University Press, 2004).

    Separate opinions in the ECHR 43

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    the law has been applied to the facts to produce the result in the case. This

    transparency of reasoning is further enhanced by the ability of judges either

    to add riders in support of the judgment of the Court, or to dissent from the

    conclusions of the majority in whole or in part. The system places a high pre-mium on personal and institutional independence of the judiciary, coupled

    with transparency since it will always be possible to determine the view of

    any particular judge in the case. Lasser says of judgments of this type:

    The legitimacy of a given judicial decision thus stands and falls in large

    measure on the logic and argumentation of the signed judgment, not

    the structural legitimacy of the entire judicial apparatus from which

    it hails.31

    3. Prior Research

    We are not the first to consider or comment upon the phenomenon of separate

    opinions in the Strasbourg Court. There has also been extra-judicial comment

    on the function, purpose and use of separate opinions.

    On an analysis of all Court judgments from 1991 to 1995, Bruinsma and de

    Blois

    32

    found that there was no correlation between outcome of a case andthe likelihood of separate opinions.33 The frequency was around 60 percent

    regardless of whether a violation was found. Their sample presented 67 judg-

    ments in which no violation was found, as against 126 judgments in which a

    violation was found. Bruinsma and de Blois conclude that at one level, the

    impact of national backgrounds is not great, though they argue that they

    have found some striking examples of national bias in separate opinions.34

    The authors then identify undercurrents in the judicial approach to interpreta-

    tion and application of the Convention, which they argue indicate a conserva-

    tive or judicial restraint approach to the Convention as against a liberal orjudicial activist approach to the Convention.

    This is a theme picked up in an interview with Judge Wildhaber as President

    of the Strasbourg Court.35 Judge Wildhaber agrees with the proposition that a

    common distinction in the interpretation of constitutions is between judicial

    restraint and judicial activism, and that this distinction can be applied to the

    31 Ibid. at 338.32 Bruinsma and de Blois, Rules of Law from Westport to Wladiwostok. Separate Opinions in the

    European Court of Human Rights (1997) 15 Netherlands Quarterly of Human Rights 175.

    33 These authors characterise a unanimous decision as one without any separate opinionswhether concurring or dissenting, whereas our analysis draws a distinction between casesin which there are concurring opinions and those in which there are dissenting opinions.Where there are only concurring opinions, it is legitimate to view the outcome as unanimous.

    34 Bruinsma and de Blois, supra n. 32 at 175.35 Bruinsma and Parmentier, supra n. 3.

    44 HRLR 9 (2009), 37^60

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    Strasbourg Court. But he qualifies this response by noting that the Court

    operates largely through its Chambers:

    One of the judges may move ahead and when the composition of theChamber is favourable, the majority may do something very activist.

    If you then follow precedent, you are bound to follow the outcome of

    judicial activism. As a result, you can be on the side of judicial self-

    restraint and at the same time you want to change precedent. Because

    of the complexities of our Court it is not a simple continuum. Are you to

    the same extent a judicial activist when it concerns your own country?

    You know your own system, you know it works and you think it hasnt

    led to many abuses. Even as a very objective observer you may be more

    lenient towards your own country.36

    In a separate response the judge indicates that he is more on the side of self

    restraint in relation to the interpretation of Articles 5 and 6, is more on the

    side of judicial activism in relation to Article 8, and in the middle in relation

    to Article 10 of the Convention.37

    One of the first detailed studies of separate opinions is that of Rivie' re.38

    This work is one of the few to consider the impact of the different types of sepa-

    rate opinion: dissenting opinions; partly dissenting opinions; concurring opi-

    nions; and partly concurring and partly dissenting opinions; andcombinations of judges working together to produce such separate opinions.

    Rivie' re examines both the nature and function of such opinions. The study is

    broadly favourable in its conclusions on the use of separate opinions, and

    views the common law approach of permitting concurring and dissenting opin-

    ions as evocative of the continental European procedure of opinions of advo-

    cates general and similar judicial offices, as well as the contribution of legal

    doctrine. The qualitative part of the study39 argues that separate opinions

    serve to aid in interpretation, clarify the law, comment on it and review it.

    The main value of Rivie' res work is its analysis of different types of separateopinions. She identifies a number of bifurcations: between opinions addressing

    the foundations of the reasoning of the judgment of the Court and those

    addressing criticisms of consistency in the Courts case law; between opinions

    concerned with admissibility issues and fact-finding and opinions concerned

    with substantive rights; and between those motivated by different approaches

    to the interpretation of the Convention, broadly a close textual approach

    versus a broader purposive interpretation.

    36 Ibid. at 187.37 Ibid.38 Rivie' re, Les opinions separees des juges a' la cour europeenne des droits de lhomme (Brussels:

    Bruylant, 2004). This work also contains useful reference to the wider literature in Frenchon separate opinions.

    39 Which is the main thrust of this work, which almost wholly eschews numerical analysis.

    Separate opinions in the ECHR 45

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    Bruinsma, in a 2006 piece, examines the relationship between the legal

    background of judges, their individual opinions and national bias.40 Judges

    were interviewed. Backgrounds were classified as former judges, former

    academics, former administrators, and former practising lawyers, with a fifthcategory for those whose prior experience was a combination of the above.

    Bruinsma concludes that the formative years do affect judicial temperament

    in the Strasbourg Court. The distinctive features of the four classifications of

    former experience are marked by identifiable tendencies. Former practitioners

    are more likely to see themselves as members of a collegiate body delivering

    majority judgments; the filing of separate opinions is of minor importance.

    Former administrators and academics prefer to decide cases one by one as

    building dynamic human rights case law. Former trial judges and lawyers are

    characterised as used to thinking in terms of case particularities, while

    former academics and administrators are characterised as used to thinking in

    terms of the general interest and policy considerations. But it is also clear

    that these were merely tendencies and not universal truths about background.

    Voeten has also sought to draw conclusions from quantitative data.41But his

    conclusions differ from those of Bruinsma, and are deeply rooted in the judicial

    activism versus judicial restraint debate. This study leads to four conclusions.42

    Firstly, judges do vary in the deference they show to respondent States in asses-

    sing whether there has been a violation of the Convention. Secondly, politicsplays a role in judicial appointments to the Strasbourg Court.43 Thirdly,

    Member States seek to make appointments to the Strasbourg Court which

    match their preferences.44 Finally, the Strasbourg Courts composition has

    become more activist over time as governments have tended to replace

    more restrained judges with more activist judges.45 Voeten argues that this is

    driven by increasing European integration, and that States aspiring to mem-

    bership of the European Union seek to show their human rights credentials

    by appointing activist judges.46

    40 Bruinsma, Judicial Identities in the European Court of Human Rights, in A van Hoek (ed),Multilevel Governance in Enforcement and Adjudication (Antwerp: Intersentia, 2006) at 203.See also Bruinsma, The Room at the Top: Separate Opinions in the Grand Chamber of theECHR (1998-2006), (2008) Ancilla Juris 32.

    41 Voeten, The Politics of International Judicial Appointments: Evidence from the EuropeanCourt of Human Rights, (2007) 61 International Organization 669.

    42 Ibid. at 695^7.43 For a study of the appointments process, see Interights, Judicial Independence. Law and Practice

    of Appointments to the European Court of Human Rights (London: Interights, 2003).44 Voeten, supra n. 41 at 696, concludes that judges whose previous careers were primarily as

    diplomats or bureaucrats are significantly less activist than judges with other previous

    career tracks.45 Ibid. at 697.46 The Copenhagen criteria for membership of the European Union include stability of institu-

    tions guaranteeing democracy, the rule of law, human rights and respect for and protectionof minorities, see: http://europa.eu/scadplus/glossary/accession_criteria_copenhague_en.htm[last accessed 13 November 2008].

    46 HRLR 9 (2009), 37^60

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    Arolds study47 involved three elements: interviews with judges and staff at

    the Strasbourg Court, eight weeks spent at the Court studying the organisa-

    tional behaviour and attitudes inside the Court,48 and a case analysis involv-

    ing judgments delivered under Articles 8^10 of the Convention between11 November 1998 and 31 October 2001. The overall purpose of the study was

    to determine whether three variables49 affected the way judges behave. This

    study concludes:

    My conclusion is this: in the Court, there is a legal culture that

    successfully overrides the (legal) difference between its member

    states. The rich diversities that come to the Court create no obstacles to

    its work. . ..

    The Court is thus an example of convergence. The permanent judgesadapt to the Courts legal culture. A key element of that legal culture . . .

    is a sense of working together. . .50

    It would seem that, for Arold, the recognition of working with a common

    legal culture facilitates respect for differences of opinion while also

    applying a pressure for consensus, and so provides a working environment

    in which those differences can readily be expressed in separate opinions.

    The principal determinant of a propensity to write separate opinions

    is the judges background, though this is described as having only a smallimpact.51

    It cannot now be said that the subject of separate opinions is an under-

    researched aspect of the work of the Strasbourg Court. The work encapsulated

    above shows some fascinating insights into judicial behaviour, some common

    themes and some diverging conclusions.

    4. Some Quantitative Outcomes of the Leicester Study

    A. Some Basic Numbers

    Rivie' re records52 that from its inception until 31 December 1998 there were

    908 separate opinions in judgments on the merits which can be categorised

    as shown in Table 1.

    47 Arold, The Legal Culture of the European Court of Human Rights (Dordrecht: Martinus Nijhoff,2007).

    48 Ibid. at 16.49 Historical-political background, vocational background, and geographical-legal background.50 Arold, supra n. 47 at 160.51 Ibid. at 160^1.52 Rivie' re, supra n. 38 at 25, n. 113. Rivie' re does not state the number of cases in which these

    opinions occurred.

    Separate opinions in the ECHR 47

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    Our study identifies the following types of judgment and opinion in the

    Court: 53

    A unanimous judgment of the Court.

    A majority judgment of the Court.

    A dissenting opinion by a single judge.

    A concurring opinion of a single judge.

    A partly dissenting opinion by a single judge.

    A partly dissenting and partly concurring opinion by a single judge.

    A joint dissenting opinion by two or more judges.

    A joint concurring opinion by two or more judges.54

    A joint partly concurring and partly dissenting opinion by two or morejudges.

    In some cases, a judge might file a partly dissenting opinion of his or her

    own, and join in a partly concurring opinion put forward by other judges.

    One of the features of our quantitative work was the difficulty of counting in

    the context of the Strasbourg case law. Throughout our consideration of the

    results of our statistical analysis, we were constantly drawn to the need

    also to make qualitative judgments in order to avoid presenting distortions

    from the raw numbers.

    Both Bruinsma and Voeten make significant use of separate opinions with-

    out drawing sharp distinctions between dissenting and concurring opinions.

    At one level this approach is justified. Any separate opinion, whether dissent-

    ing or concurring, is disagreeing with some aspect of the judgment of

    the Court. But, in the case of the dissent, the difference of opinion extends to

    outcome, whereas in the case of the concurring opinion, the disagreement

    goes only to the reasoning by which the majority reaches its conclusion.

    While the motivation to write a dissenting opinion is clear, there appears to

    Table 1. Analysis of separate opinions 1960^1998

    Type Number Percentage

    Dissenting opinions 413 45.5Concurring opinions 204 22.5Partially dissenting opinions 170 18.7Identified simply as separate opinions 95 10.5Declarations 26 2.8Total 908 100.0

    53 In all cases, whether a Chamber or a Grand Chamber.54 Which is sometimes referred to as a joint separate opinion; we have not discerned any signi-

    ficant difference between opinions which are described as separate opinions and concurringopinions.

    48 HRLR 9 (2009), 37^60

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    be less clarity over the motivation to write a concurring opinion. Some judges

    are less inclined to do so than others.55

    Many cases before the Strasbourg Court also involve claims that more than

    one Convention provision has been violated. Where the Court concludes thatthere has been a violation of a Convention provision, the issue of just satisfac-

    tion may also be under consideration. The dissent or concurring opinion may

    only extend to one of a number of issues before the Court. As we discovered

    when interrogating our database, deciding what combinations are significant

    and how to categorise individual cases is deeply problematic. The nature of

    the majorities on particular issues can be of very considerable significance.

    Take, for example, the case of Roche v United Kingdom56 in which the Court

    decided 9-8 that there was no violation of Article 6(1); 16-1 that there was

    no violation of Article 1 of Protocol No 1; 17-0 that there was no violation of

    Article 14; 16-1 that there was no violation of Article 13; 17-0 that there was a

    violation of Article 8; and 17-0 that there was no violation of Article 10.

    Simply categorising this as a 9-8 decision of the Grand Chamber misrepresents

    the levels of agreement and disagreement on the particular issues which

    arose in the case. Simply counting by reference to issues rather than cases is

    also problematic, in that many cases have primary and secondary overall

    issues. To treat them alike and in isolation from the set of circumstances pre-

    sented to the Court again misrepresents the position. Such considerations ledus to approach simple numerical data with some scepticism in drawing conclu-

    sions, and forming hypotheses, solely from the numbers drawn from our data-

    base. However, some propositions can be put forward in a tentative manner,

    since one of the purposes of this article is to report some of the quantitative

    findings drawn from the initial interrogation of the database of cases.

    The first surprise is the number of different types of separate opinion which

    are used by the Strasbourg Court, combined with the frequency with which

    cases contain separate opinions. The second surprise is the relative infre-

    quency with which the national judge57 is the sole dissenting voice in a casein which a violation of the Convention is found. Most often, where the national

    judge is a dissenting judge, one or more other judges also dissents.58 We could

    discern no evidence to suggest that this was the result of coalitions among

    judges at the Strasbourg Court.

    55 Former Judge Hedigan is cited by Bruinsma as saying that it is futile to write separate concur-ring opinions; he is quoted as follows: One agrees with the judgment, that is enough. . . . I dofeel writing a concurring opinion is rather useless. See Bruinsma, supra n. 40 at 203.

    56 Roche v United Kingdom 2005-X; 42 EHRR 599.

    57 Under Article 27(2) ECHR the judge elected, in respect of the Contracting Party against whomthe application alleging a violation of the Convention is made, sits as an ex officio member ofthe Chamber or Grand Chamber which decides the case. If there is no such judge, or thatjudge is unable to sit, an ad hoc judge is appointed by the Contracting Party who sits as thenational judge.

    58 See below.

    Separate opinions in the ECHR 49

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    In our data set, 80 percent of cases were non-unanimous in the sense that

    there was not a single unanimous opinion of all the judges of the Chamber or

    Grand Chamber hearing the case.59 The incidence of the use of the ability to

    deliver a separate opinion is high. The position over time is shown in Figure 1.

    The number of non-unanimous judgments has remained fairly

    constant over the six years of the study ranging from 69.5 percent in 1999 to

    84.5 percent in 2001.

    We took the view that earlier studies had not focused sufficiently on the

    incidence of dissenting opinions as a particular type of separate opinion.60

    We did extend the Leicester Study to take a closer look at the 166 judgments

    of the Grand Chamber over the nine year period from 1 January 1999 to

    31 December 2007. Of these, just 24 (14.5 percent) were unanimous decisionsof the Court on every issue before it with no concurring opinions annexed to

    the judgment of the Court. However, making some rough and ready judgments

    on the core issue before the Court could justify concluding that the Court was

    essentially unanimous on these core issues in 70 cases (42 percent). Since the

    Grand Chamber is charged with determining serious questions affecting

    the interpretation of the Convention,61 it is perhaps unsurprising that the use

    of both concurring and dissenting opinions is much more the norm than the

    0

    100

    200

    300

    400

    500

    600

    700

    800

    1999 2000 2001 2002 2003 2004

    Unanimous Non-unanimous

    Figure 1. Number of non-unanimous judgments: all judgments.

    59 This calculation adopts the approach of Bruinsma and Voeten in viewing all separate opin-ions, whether dissenting or concurring, as representing some disagreement with the judg-ment of the Court.

    60 For further discussion of dissenting opinions, see below.61 On relinquishment to it by a Chamber under Article 30 ECHR, or on referral under Article 43

    ECHR.

    50 HRLR 9 (2009), 37^60

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    exception in its decision-making. There were dissenting opinions on some

    aspect of the case before the Grand Chamber in 133 cases (72 percent). Indeed

    dissents are common in the Grand Chamber. Again using some rough and

    ready judgments about the core issue in cases before the Grand Chamber, the

    picture shown in Table 2 emerges in terms of the overall outcome of cases.62

    There were 55 cases (33 percent) where the outcome of the Grand Chamber

    judgment was that there was no violation of the Convention. This is a higher

    proportion of cases in which no violation is found than among judgments of

    Chambers.64

    B. The Outcome of Cases

    The majority of cases which proceed to judgment result in a finding by the

    Court of the violation of some provision of the Convention. Very many cases

    involve complaints of violations of a number of provisions of the Convention.

    We found that in 90.1 percent of all cases, the Court found a violation of at

    least one Convention provision, with just 9.9 percent of cases resulting in a

    conclusion that there had been no violation of the Convention.The proportion of cases in which no violation of any Convention provision

    was found has varied over time. In 2001, for example, just eight percent of

    judgments found that there was no violation, whereas in 1999 and 2004

    some 13 percent of judgments found no violation. The pattern over the six

    years under investigation is set out in Table 3.

    Table 2. Majorities in the Grand Chamber 1999^2007

    Majority Number

    17-0 7016-1 2663

    15-2 814-3 713-4 712-5 2511-6 710-7 109-8 6

    62 Rather than separating out issues arising in the cases.

    63 Of which 16 might be characterised as sole dissents by the national judge on a significantissue raised in the merits of the case.

    64 For an interesting discussion of judgments of the Grand Chamber in which no violation isfound, see Mowbray, No Violations But Interesting: A Study of the Strasbourg CourtsJurisprudence in Cases where no Breach of the Convention has been Found, (2008) 14European Public Law 237.

    Separate opinions in the ECHR 51

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    The number of judgments of the Grand Chamber between 1999 and 2007

    which found a violation of some Convention provision is 111 (67 percent).

    The standout conclusion of our data is that judges of the Strasbourg Court

    frequently exercise their prerogative to file a separate opinion. Most of these

    are concurring opinions, but there remains a significant proportion of dissent-

    ing opinions.

    (i) Dissenting opinions

    The task of analysing dissenting opinions was complex. While every dissent

    represents a difference of opinion as to the outcome of the case, some dissents

    relate to secondary issues in the case while others represent rather more fun-

    damental disagreement with the reasoning of the Court. This means that a

    qualitative judgment needs to be added to any quantitative reporting of

    dissents.

    We considered that it might be fruitful to examine in some detail cases

    where there was a single dissenting opinion. This group of cases refers to

    those dissenting opinions which are not joined by other judges, but represent

    a single dissenting voice by one member of the Chamber or Grand Chamber.

    We were also concerned to examine the incidence of sole dissents by national

    judges. The starting point was to explore whether national judges were respon-sible for more single dissenting opinions than other judges in the case.

    But the frequency with which judges append a single dissenting opinion of

    their own is in any event not high. We found only 211 such cases in our core

    dataset. But these included 134 judgments against Italy65 in which there was

    a virtually identical dissent by the national judge in respect of the Courts

    omnibus approach to issues relating to the length of proceedings in the

    Italian courts. If this atypical block of cases is excluded, our dataset consisted

    of just 77 cases (0.2 percent of the cases in our dataset). Single dissents by

    national judges are few in number,66 indicating that the Strasbourg Court is

    Table 3. Proportion of cases in which violations found

    Year Violation (%) No violation (%)

    1999 87.0 13.02000 91.8 8.22001 92.0 8.02002 91.1 8.92003 88.7 11.32004 86.9 13.1

    65 Delivered in February 2002.66 Of these 77 cases, 42 can be characterized as sole dissents by the national judge. The dissents

    number as follows in relation to the national judge: Turkish: 20; Italian: 13; British: 2;

    52 HRLR 9 (2009), 37^60

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    not the place where national judges routinely seek to defend the interests of the

    country in respect of whom they are elected, or serving as an ad hoc judge.

    Examination of the sole dissents by other than the national judge led us to con-

    clude that there could be no suggestion of proxy voting by Member States insympathy with the position of the respondent State. If anything, it was judges

    who scored highly on the judicial activism/judicial restraint scale in Voetens

    article67 who were well represented among the sole dissenters in this sample

    of cases.

    Many cases involve judgments on complaints of violations of more than one

    Convention provision. This presented a difficulty of classification: should we

    count by reference to findings or by reference to judgments? We decided to

    count for the purpose of this enquiry by judgment, since this might illustrate

    most dramatically the cause of the disagreement between the majority and

    the sole dissenting voice. We have also focused on differences of opinion

    on the substantive articles of the Convention rather than on the issue of just

    satisfaction.68

    In addition to the 211 single dissenting opinions, we identified:

    205 joint dissenting opinions

    146 joint partly dissenting opinions

    103 single partly dissenting opinions

    three joint partly dissenting and partly concurring opinions.

    Such opinions did not all occur in separate cases; combinations of different

    types of opinions can be found within individual cases.

    Voeten reports that 900 of the 6,749 judgments of the Strasbourg Court

    between 1955 and 30 June 2006 included at least one dissenting opinion.69

    These figures are broadly in line with those found in the Leicester Study. So

    we can say that approximately 25 percent of Strasbourg judgments on the

    merits are unanimous, 15 percent contain at least one dissenting opinion, and60 percent contain at least one separate concurring opinion. This means that

    eighty-five cases out of every hundred are unanimous as to the outcome even

    if the reasoning for that outcome is not the same in the minds of all the judges.

    Russian: 2; Bulgarian, Cypriot, Greek, Latvian, Slovakian: 1 each. There is some double count-ing in that there are a number of cases where both a judgment of a Chamber and of theGrand Chamber in the same case are included. One of the Italian cases involved the nationaljudge as the only judge voting in favour of a violation: in Perna v Italy 2003-V; 39 EHRR 563,the Court ruled 17-0 that there had been no violation of Article 6(1), and by 16-1 that there

    had been no violation of Article 10. Judge Conforti, the Italian judge dissented and consideredthat there had been a violation of Article 10.

    67 See Voeten, supra n. 41 at 686.68 On which the Court has been criticised for its unstructured approach: see Mowbray, The

    European Court of Human RightsApproach to Just Satisfaction, [1997] Public Law647.69 Voeten, supra n. 41 at 684.

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    One of our original objectives was to seek to discern the reasons for dissent-

    ing opinions. We looked at the incidence of dissenting opinions by article of

    the Convention. This again proved to be difficult, because so very many cases

    involve complaints of the violation of more than one provision of theConvention. In addition, some articles of the Convention attract many more

    complaints than others. We suspect that it is simply the volume of cases

    which puts Article 6 at the top of our league table;70 qualitative consideration

    of a sample of such cases suggested that dissents in this area tended to relate

    to technical points of court structure and procedure. When qualitative factors

    are applied to raw numbers, we concluded that Article 8 generated the highest

    proportion of dissenting opinions, followed by Article 10 with most other arti-

    cles some way behind the proportion of dissents in these two fields. But we

    express this view with caution; the number of cases in respect of some other

    Convention provisions is so small that raw percentages may have little or no

    statistical significance.

    Members of the team71read all the dissents under particular Convention arti-

    cles and came together to suggest hypotheses explaining the dissents in the

    areas under examination. The outcome was trite. The judgments under particu-

    lar Convention provisions did not suggest any discernible pattern of disagreement

    either regionally or by issue. This re-inforces earlier research which had sug-

    gested that dissents occurred randomly rather than predictably.72

    The randomoccurrence of dissents is not used in any pejorative sense, but in terms of the pre-

    dictability of a particular case generating a dissent. Certain types of dissent

    might be predictable, such as the reluctance of theTurkish judge to acknowledge

    the liability of the State for certain actions of its security forces, but beyond that

    observations became more platitudinous. The source of the dissent was a dis-

    agreement withthe majoritybornof the opentexture of the Convention provision

    (especially in relation to Article 8), or the scope of the States margin of apprecia-

    tion (for example, underArticle10).

    (ii) Concurring opinions

    While we would not wish to dismiss the significance of separate concurring opin-

    ions, their visibility and utility would seem to be less than that of dissenting opin-

    ions. While todays dissent might be tomorrows majority, the glosses on the

    reasoning of the judgment of the Court to be found in concurring opinions seem

    70 Even when attempts are made to look at the data in percentage terms.71 The authors are grateful for the assistance provided by Dr Murat Tumay in this aspect of our

    research.72 Arold, supra n. 47 at 160, following the application of three variables ((a) historical-political

    background, (b) vocational background, and (c) geographical legal background) to thevoting behaviour of judges in cases involving Articles 8, 9 and 10 ECHR.

    54 HRLR 9 (2009), 37^60

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    to have little attraction for practitioners, and to be the province of the scholar at

    best. Bruinsma says of both concurring and dissenting opinions:

    The minor legal status of separate opinions compared to the majorityjudgment has prevented lawyers from becoming fully aware of their legit-

    imating potential. Practising lawyers are simply not interested, but even

    in academic writing separate opinions are disliked: they seem to detract

    from the authority of the majority judgment.73

    While we would not completely endorse that proposition, we would acknowl-

    edge that the shelf life and impact of a concurring opinion is somewhat less

    than that of a dissenting opinion. Whereas the lawyer (or academic) looking

    for arguments to support a change in the Strasbourg Courts approach to a par-

    ticular issue is likely to trawl through relevant dissenting opinions, that

    research is almost certainly less likely to extend to concurring opinions. Our

    reading of a selection of separate concurring opinions highlighted the consid-

    erable variations in the length and detail of such opinions. They vary from

    opinions of only a few lines in length making a brief point to substantial

    pieces of writing. We were certainly left with the impression that some brief

    concurring opinions could easily have been omitted with no adverse impact

    on the quality of the overall decision.74 It remains arguable whether the ability

    to write concurring opinions renders the decision-making process moreefficient. On the one hand, the possibility of the use of a concurring opinion

    does mean that a majority decision can be reached on the substance without

    the need to secure agreement on every point by which the conclusion has

    been reached. On the other hand, additional work is required of the judge

    who feels the need to qualify the reasoning of the judgment of the Court in a

    concurring opinion.

    5. Our Interviews With Judges: Voices From The Court

    In October 2007 the research associate on the project conducted structured

    interviews with nine judges at the Strasbourg Court.75 This was a self selecting

    group of judges willing to participate in the interviews, and so cannot be

    regarded as a representative sample of the Strasbourg judiciary. All but one of

    the interviews were recorded and transcribed.76 The opportunity was taken

    73 Bruinsma and de Blois, supra n. 32 at 186.74 See also comment at n. 55.

    75 Some of the questions put to the judges were inspired by those which had been put byBruinsma in his interview with Luzius Wildhaber in 2003, and reported in Bruinsma andParmentier, supra n. 3.

    76 For the ninth, the Leicester Study is dependent upon notes taken during the interview by theresearch associate. The authors are grateful to the judges who participated, and to thePresident of the Court who facilitated arrangements for Dr Boussiakous visit to the Court.

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    to raise questions concerning not only concurring and dissenting opinions,

    but also on the nature of the Courts role, and the challenges the Court faced

    in the future. These voices from the Court, though selective, contain important

    reflections on the work of the Strasbourg Court a decade after the cominginto force of the re-structuring of the Convention organs in Protocol No. 11.77

    A. The Strasbourg Court as A Constitutional Court

    We have taken as axiomatic that the form of judgments is linked to the func-

    tion of a court, and that a judges view of the function of a court may well

    affect the likelihood of writing a separate opinion where that is permitted. We

    have also noted the increasing recognition of the constitutional functions ofthe Strasbourg Court.

    None of our judges accepted that the Strasbourg Court was a constitutional

    court in an orthodox sense, since it had no power to invalidate national legisla-

    tion and its role was solely to determine whether there had been a violation of

    the Convention. But all accepted that the Court had developed organically

    from the original international court model into a court whose jurisdiction

    was compulsory for the Member States, and which made determinations on

    the application of individuals and States. Though its constitutional function

    was not of a generalist nature, the Court is charged with the interpretationand application of a constitutional instrument in a specialist field.

    B. Judicial Activism and Judicial Restraint

    Much prior research into the use of separate opinions, especially in constitu-

    tional courts, has been set in the landscape of the debate about judicial activ-

    ism and judicial restraint. All of our judges were eminently aware of this

    debate, and hinted at an understanding of where they were perceived to be onthe spectrum of activism and restraint. But none liked the use of such labels,

    principally because they considered that such labels could not universally

    apply. In some areas, a judge might be activist, and in some areas restrained.

    This was well articulated by Judge D:

    You have to bear in mind that judges have their individual personal men-

    tality. I cannot speak about categories. In one case a judge may appear

    to be . . . conservative and in another case maybe more liberal. They have

    The interviews took place over a period of four days in October 2007. In order to maximisethe frankness of responses, it was agreed that no judge would be quoted by name in anypublished material.

    77 For a discussion exploring the responses of the judges in more detail, see White andBoussiakou, Voices from the Strasbourg Court, available at: http://ahrclawleicester.blogspot.com/ [last accessed 17 December 2008].

    56 HRLR 9 (2009), 37^60

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    their own experiences, their own beliefs, convictions etc. Therefore such

    a line between groups cannot be drawn because . . . a conservative

    judge may be liberal in some cases . . . and the other way round

    [in others].However, our judges did think that the legal background which judges

    brought to the Court might influence their approach to the interpretation

    and application of the Convention, and hence the likelihood of their writing

    separate opinions. For example, Judge F said:

    There are some judges who have a more activist background. Judges who

    are academics before or judges who belong . . . to some other profession

    were . . . more oriented towards a more individualistic or more activist

    approach. There are judges, particularly those who come from thecivil service or the judicial system, maybe not the constitutional court,

    [but] a regular judicial system that might be . . . trained to exercise more

    restraint.

    One theme which emerged from the interviews is that judges tend to think

    of their role in the context of the totality of their work, which is, of course,

    dominated by determining questions of admissibility. It is easy to forget, when

    reading judgments of a Chamber or a Grand Chamber, that this represents

    only a small proportion of the total workload of a Strasbourg judge.

    C. The Value of Concurring and Dissenting Opinions

    Our judges were overwhelmingly in favour of the use of concurring and dis-

    senting opinions, because it demonstrated the nuances of human rights

    protection, promoted debate among the Strasbourg judiciary, indicated that

    questions of interpretation and application were not always clear-cut, could

    provide consolation for the losing party who would know that some judges

    appreciated their position and arguments, and demonstrated openness and

    transparency.

    The motivation to write dissenting opinions was universally stated to be

    disagreement with the majority as to the outcome. Judge B expressed this

    sense of obligation very succinctly:

    . . . you believe strongly enough in your view that you feel you have to put

    it down on paper.

    The motivation to write a concurring opinion was less clear, and there are

    clearly differences of view among the Strasbourg judges as to their necessity

    in every case. Judge H said:

    You have different kinds of separate opinions. You have opinions which

    are really very individual in the sense that someone insists on writing a

    separate opinion just to state from an individual angle something which

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    is not important and which, with some self restraint, . . . these judges

    could have avoided in order to strengthen or to give more strength to

    the majority judgement; and, if this is so, then this is rare but [in those

    circumstances, I am] not in favour of separate or dissenting opinions.I am in favour of them if they really have to develop in a serious

    way some new ideas or . . . tackle the problem from different angles,

    but [not] if it is only a kind of individual performance, individual

    publicityso not all opinions are of the same character; that is also true.

    Our judges views of the Articles most likely to generate concurring and

    dissenting opinions largely coincide with our conclusions from the dataset.

    While most issues under Articles 2 and 3 are now well settled,78 the interpre-

    tation and application of Articles 8 and 10 were seen as likely to generatedifferences of view.

    D. Consequences of the Enlargement of the Council of Europe

    We asked our judges to reflect, nearly a decade after the expansion of the

    Convention countries, on the impact of the accession of a significant number

    of countries of central and eastern Europe on the Convention system, and

    whether judges from these countries had brought new thinking to the Court.The responses support Arolds notion of convergence in the Court.79 It was

    observed that many of the judges from these countries had trained in western

    Europe or in the United States. But perhaps more significantly there was a

    commitment to the Strasbourg case law. Judge H said:

    I call it an acquis, like you call it in the European Union an acquis

    communautaire, and here I think its the acquis of the Court, and I think

    it depends from person to person but relatively quickly it goes over to

    everyone, I would say so.

    It was, however, acknowledged that accession of these countries had

    brought new problems to the Strasbourg Court, most notably in the field of

    the enforcement of national judgments in the national legal orders, and issues

    relating to property settlements which sought to provide compensation

    for past expropriations. The collegial nature of the Strasbourg Court seems to

    be alive and well. This collegial view of the Court is typified in a remark

    by Judge B:

    I always believe that the more multi-cultural the input is, the better the

    final result, so I am not at all scared in finding that the Council of

    78 With notable exceptions in relation to medical termination of pregnancy, and various forms ofeuthanasia.

    79 Arold, supra n. 47 at 160.

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    Europe now embraces many more countries, traditions, values, different

    values than it did before. I believe that we have all to learn something

    from each other. I believe that the fact that judges come from more and

    more different backgrounds enriches the reservoir of the court.

    6. Some Reflections

    One of the objectives of our project was to see whether simple quantitative

    analysis of a significant body of Strasbourg case law revealed patterns in its

    decision-making that were not apparent from a case by case analysis. We have

    failed to identify any such patterns, though we have highlighted the extent to

    which separate opinions are a central feature of the decision-making process

    in the Strasbourg Court. The outcomes might be regarded as something of a

    disappointment, since they simply tell us what we already knew intuitively:

    that judges are individuals and that certain provisions of the Convention, nota-

    bly Article 8, are open-textured and so likely to generate differences of inter-

    pretation. Our analysis has involved consideration of almost 30,000 individual

    judicial votes in just under 4,000 cases in our dataset. Those votes were cast

    by permanent judges and ad hoc judges. What is striking is how often there is

    agreement as to result, but also how frequently a judge wishes to add his orher personal voice to the judgment of the Court in the form of a concurring

    or dissenting opinion.

    Both the homogeneity and heterogeneity of the Strasbourg judiciary are

    features of the system. The case law is evidence of a collegiality, born in part

    of multi-judge panels determining the merits of cases, but also of the principle

    of convergence identified by Arold in her study.80 Our key conclusion is that it

    is judicial temperament which determines the extent to which a judge appends

    his or her own individual voice to the judgment of the Court in filing concur-

    ring or dissenting opinions. Judicial temperament is shaped by a judges priorexperience and by the value set which that judge brings to his or her judicial

    work. This in turn reflects the pluralism, tolerance and broadmindedness

    that the Court has repeatedly stated are the characteristics of a democratic

    society.81 In our estimation it is differential views of the requirements of a

    democratic society reflecting the value pluralism at the heart of the

    Convention which accounts for the majority of dissenting opinions.

    The approach of the Strasbourg Court is casuistic. If a case is declared

    admissible, then there will be a determination on the merits regardless of the

    nature of the issue raised. It may be a highly novel one or it may be simply

    the application of well-established principles on, for example, the requirement

    80 See text at supra n. 47.81 See, for example, Gorzelik and Others v Poland 2004-I; 38 EHRR 77 at paras 88^93.

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