Thursday, 17 October 2013

An Interview with Judge Paul Mahoney by Dr Jon Yorke

European Court of Human Rights, Strasbourg

JUDGE PAUL MAHONEY has spent much of his professional career at the European Court of Human Rights after being recruited by the Court on a temporary contract to work on the case of Golder v. the United Kingdom in 1974. He read law at Oxford University and University College London, taught law at University College London and practiced as a barrister for a while before moving to Strasbourg as a Registry lawyer in the Court from 1974-1990. He was the Deputy Registrar of the Court from 1995-2001, and Registrar between 2001-2005. From 2005-2011, he served as President of the European Union’s Civil Service Tribunal, and in 2011-2012 he was the Chairman of the European Space Agency Appeals Board. In July 2012, he was elected Judge on the European Court of Human Rights in respect of the United Kingdom.     

Question: What do you most enjoy about being a judge on the European Court of Human Rights? What do you find most challenging?

I am lucky because I work in an area that I care deeply about. Most people have an ambition to enjoy what they do, to earn a living. Thankfully, I have achieved that ambition and it is a privilege.  

What I appreciate about this Court, and my role as a judge, is that the end-product is a concrete input into European society - hopefully in contributing to mould Europe for the greater good. It is a measurable input. The results can be seen translated into changes – as I said, hopefully for a better society.  Laws, practices and, over time, attitudes can be seen to have changed.

The Court does not function in a vacuum of course, but operates within the framework of an overall Council of Europe human rights protection system. Parallel to that, governments, parliaments, ministries, public authorities, local councils, schools, universities – people in general - are now more aware of human rights values than they ever have been, and this Court has been, not the only or even the major, but certainly a significant contributing factor to this educative process. I do not share the view that the main consequence of greater human rights awareness is that people are now more selfish – that is to say, that human rights can be boiled down to a consumerist, self-centred culture of people saying, “I want my rights,” “I demand my rights.” There is of course some of that, but what is occurring mostly, in my opinion, is a positive change in Europe.  A more caring Europe.

What I also like about this Court is that no judge is able to assume that he or she has the monopoly of the interpretation of the Convention. Adjudicating on human rights, by definition, is an activity where no one has the monopoly of right answers. Cases before this Court raise difficult issues where law, social policy and politics intersect, and we have to try to deal with these issues in a dispassionate, objective, structured way.  The judicial decision-making process inside the Court is not an authoritarian one, but a collective one. Personally, I don’t like authoritarian styles of management.  The 47 judges are split between five Sections.  The seven-judge chambers within the Sections and the 17-judge Grand Chamber, and the individual judge rapporteur in the case, all function together to adjudicate on the intricate, and difficult, issues of human rights raised in those cases that are not clearly inadmissible or ill-founded.      

Often the case turns on whether the contested national measure meets the test of proportionality.  The Court is called on to review the actions of Member State Governments and to assess whether the measure adopted was excessive or imposed a disproportionate burden on the individual(s) affected. To arrive at a reliable assessment, you need different views on the various principles involved. That in essence is the heart of democracy, as I see it; generally speaking, the more people who are involved in decision-making, the more legitimate – and reliable - that decision will be. When it comes to social policy and human rights in particular, I think that democracy is best respected by according a certain deference to the product of democratic processes at the national level.

As a European citizen, not as a judge, I am not so sure that I want every aspect of my life to be decided by, dictated by, judges. I would prefer the democratic voice to be the major voice, with appropriate checks and balances, notably in the form of judicial protection of fundamental rights. There are times when the judges have to step in, but on the whole in political democracy the will of the people, as expressed through the vote and the normal functioning of democratic institutions, must be the major driving force of society, subject to proper judicial protection of individuals and vulnerable minorities from the excesses of majoritarianism.         

What do I find challenging? Well, there is a lot of work. I need to make sure that I find enough time to read the case-files properly and reflect on the cases. It is sometimes difficult because of the sheer volume of the caseload. The Court is under constant pressure from the Member State Governments to be more efficient and more and more productive, but, I have to say, this Court is more efficient in what it does than are many of the Governments who accuse it of inefficiency. But more on case-management and efficient adjudication for your question below.  

Another critical challenge that the judges on the Court face is to keep in contact with the home country and the public. The job here, as a judge, is not simply to sit in the office, produce judgments, and then go home at the end of the working day. There is also, I think, a duty to act as a kind of ambassador for the Court, and to be available to explain to practising lawyers, bar councils and universities what is going on here. Of course, finding the time to do this is difficult, but it should be done.

There is a lot of misunderstanding in the popular press on what the Court does, and even on what individual judgments have or have not decided.  The Court and its judges therefore have a responsibility to make sure that they communicate to the wider world the reality, and the value, of what the Court does. Both the Court as an institution and individual judges, as part of their job (subject to what the continentals call the “duty of discretion”), have a professional responsibility to communicate and to provide an appropriate level of transparency. 

Question: You were the Deputy Registrar from 1995-2001 and the Registrar from 2001-2005, to what extent to you think your previous experiences in the Court have helped you in your role as a Judge?

Your question only explores part of my story. I was recruited by the Court in 1974 to work as a junior case-lawyer preparing the case of Golder for hearing, the first British case to come before the Court, a case that concerned access to court and prisoners’ correspondence rights – what was then called civil liberties having been one of my interests when starting out at the bar in London. 

I was a first-hand witness, not to the birth of the Convention system in the immediate post-war period of course, but to the crucial early period when the main planks of the case-law were put in place. Some of the judges who sat on the Court during that early, creative period had lived through the Second World War and had been Nazi prisoners; others were Supreme Court judges or former leading statesmen in their countries or world-renowned professors of public international law. Great thinkers of their time. A fantastic generation of jurists who laid the foundations of the Convention principles that we now take for granted. They knew what denial of human rights could lead to. 

I was therefore a witness to the early childhood and adolescence of the Commission and Court, and to the laying and the painstaking, progressive consolidation of the Court’s jurisprudential foundations from which it now works and evolves.  Through the 1980s and 1990s, when the landmark judgments were being delivered. As the responsible case-officer, I drafted many of the now historic texts – on the instruction of the judges of course.  The practice of the Court then, as it is now, was for the Registrar and the case-officer to sit with the judges in the deliberations and to take notes; and then to turn the reasoning of the majority (which sometimes comprised several strands of thinking) into a draft judgment. The Registry is still the instrument for preparing the judgments of the Court in the two official languages of the Court, French and English. When I started, there were ten Registry staff in the Court and 30 in the Commission in total; now, the Court’s Registry numbers 650 or so staff members, with nearly 300 lawyers alone.

So I was lucky to be here at the jurisprudentially formative period of the Court. Nowadays, because of the explosion of the caseload, in particular the mass of unmeritorious applications, there is an aspect of the Court’s functioning that is more like a factory, a highly-regulated production-line for processing cases in an extremely summary procedure, with heavy reliance on computerisation (I am referring here to the single-judge procedure for processing clearly inadmissible or clearly ill-founded applications).  This is the world we live in; the Court needs to constantly find ways to efficiently deal with its ever-increasing caseload. 

As I said, the Court has an essentially collective decision-making process. There is no ideal profile for a judge. What gives the Court its strength is the variety of approaches that different judges bring. To take my own example, my professional background is weaker in terms of previous legal practice in the home country, but I bring to the table my years of experience in international human rights adjudication and in European law, including EU law, in general.  Through working on thousands of cases going through the Strasbourg Court, I have acquired a wide-ranging general knowledge of the constitutional law and legal systems of countries throughout Europe. I have had the benefit of judicial experience in Luxembourg at the “other” European Court, as a judge in a specialist chamber of the European Court of Justice. 

My previous career in the Court gives me a historical view on many of the Convention legal issues that come up.  An understanding of the historical perspective is not without value. I often have a good idea why the case-law was expressed in a particular way and what the judges were intending to achieve when they opted for this or that formulation. That does not mean that the Convention law should remain immutably the same and never move on, but to know where the existing case-law came from can be extremely useful.  I was also secretary of the Court’s rules committee in the 1980s - 90s, and I can draw upon this experience as well.

Question: What do you think are the greatest challenges facing the Court?

One of the major challenges is what you might call mechanical - the well-known problem of case overload. As a member of a small working party set up by the European Law Institute (“ELI”), I worked on a paper entitled “Statement on Case-Overload at the European Court of Human Rights,” with Jean-Paul Jacqu√© – who was one of the primary drafters of the EU Charter of Fundamental Rights –, with Mark Entin, who is now the Russian Ambassador in Luxembourg, and with the former President of the European Court of Human Rights, Luzius Wildhaber. The ELI, whose membership comprises academics, practicing lawyers and judges, is a non-profit-making organisation that initiates, conducts and facilitates research in the field of European law. Its mission is to try to improve the quality of European law for the benefit of the citizen.

The paper that we prepared for ELI came out after the April 2012 Brighton Conference on the future of the Court, organised by the United Kingdom Government in its capacity as chair of the Committee of Ministers of the Council of Europe.  It is reassuring for us on the ELI working party – since the paper was prepared under pressure in a rather short time – that many of the points we made have been borne out by intervening developments, and most of the other points are still “in the air”.   

The Court has had to confront a real problem of case-overload. Clearly inadmissible cases make up the bulk of the caseload.  The applicants in these cases are no less entitled to a decision within a reasonable time than the applicants in meritorious cases. The annual figures vary, but generally speaking such cases represent in the region of 90% of the applications disposed of.  At one stage, in September 2011, the number of pending applications was 161,000, made up mainly of a backlog of these “unmeritorious” cases.  The backlog situation has been helped by the adoption of Protocol No. 14 and the advent of the single-judge procedure, with the assistance of the non-judicial rapporteur and the dedicated Filtering Section that has been set up within the Registry.  The hope is that by 2015, there will no longer be any backlog of such cases. On 1 October 2013, 111,350 applications of all kinds were pending – a reduction of 50,000, almost a third, in two years.

Following Protocol No. 14, the policy is that all clearly inadmissible or clearly ill-founded applications are to be dealt within an expeditious time frame. This represents a more efficient use of the Court’s time and resources, while at the same time it shows respect for the applicants whose applications fall into this category, as they receive an answer to their complaint, albeit a negative one, within a reasonable amount of time. The Filtering Section of the Registry, which handles the organisation of the single-judge procedure, has a special programme for progressively eliminating the backlog of such applications that has accumulated over the years; and a “one-in-one out” policy is operated to prevent any further backlog building up.

However, there is the problem of the remaining cases, which are not manifestly inadmissible, or not manifestly ill-founded.  Here the Court needs to develop appropriate procedural strategies for processing these cases, since there is little or no likelihood of the budget being significantly increased. In endeavoring to handle the problem under any new procedural framework, it must not cut down on the right to individual petition, which is itself an extremely important “human right.” The new single-judge procedure and Filtering Section are in place, and we will have to wait and see if the resources that this manner of proceeding frees up will enable the Court to satisfactorily deal with the caseload of “meritorious” cases without any need for radical change.  The ELI paper did foresee the possible need for a radical change of approach as regards the treatment of meritorious applications if the situation did not evolve, but the attitude of the Court itself, as I read it, is a much more cautious one of consolidating its modus operandi on the basis of the quite radical procedural changes introduced by Protocol No. 14 before envisaging any further changes to the procedural framework set out in the Convention.  

So, as the ELI working party said in its “Statement,” you have to take a nuanced approach to the caseload: it is made up of several quite different categories of cases, each category with its own specific needs and problems, even within the smaller general category of “meritorious” cases.

For this reason, the Court implemented a priority policy in 2009 with the emphasis on processing the most serious and most urgent applications.  As a result, the Court no longer takes meritorious applications in chronological order but in order of their importance under the priority policy (which is explained in a document on the Court’s website).  That is to say, the Court now gives priority of treatment to requests for interim measures under Rule 39 of the Rules of Court, to cases which involve the core rights, to cases where there is a risk to life, health, human dignity or which seriously affect specific personal or family circumstances, for instance when the well-being of a child is at stake. Also cases that may have an impact on the working of the Convention system fall into this category of priority treatment, as do applications raising other issues that have an important bearing on Member States’ judicial and political systems.    

In 2012, the Court delivered 1093 judgments concerning 1678 applications. Given that some 6,000 high-priority cases are currently pending, and if the rhythm of judgments delivered is taken to be in the range of 1500 per year, then four years would be needed to clear the backlog of high-priority cases. In addition, the Court has on its docket the growing list of non-priority “meritorious” cases (some 16,000 so far), and also 46,000 repetitive cases. In this latter category, there are, for example, over 2,000 British prisoners’ voting-rights cases on file. These all need to be dealt with. 

With particular reference to repetitive applications following up a main (or pilot) judgment where a violation has been found because of some systemic shortcoming in the national legal system, it can be seen that there are many, many pending cases which on their merits, although not illustrative of a serious violation of human rights, can be described as “manifestly well-founded.” The Court does not have the resources to process these cases expeditiously according to the standard adversarial procedures as they exist now. The Court is therefore investigating ways of processing repetitive cases more efficiently within the existing procedural framework under the Convention. It might be that, through internal initiatives, the Court will be able to work out a modified procedure to deal with them more efficiently. It is in everybody’s interest that we find solutions to these procedural blockages. Although, I will say, the Registry is doing a marvellous job in keeping the applications coming through, and aiding the judges in dealing with them.   

Another important challenge for the Strasbourg Court, and the Council of Europe in general, to meet is to keep the European peoples supportive of the Council of Europe system of human rights protection. It is not just the Governments which should be regarded as the stakeholders of the system, but also the public in the 47 Convention countries.

A parallel consideration is that the principle of subsidiarity inherent in the Convention means that the national judges in the domestic legal order are supposed to be doing the bulk of the work of judicial protection of the human rights of the citizen against State action.  This will be facilitated through the national judges having confidence in the quality of the judgments coming out of the Strasbourg Court. In many ways, when adjudicating on cases at the national level and then the international level, the national judges and the Strasbourg judges are involved in a judicial conversation on the scope and extent of the human rights standards guaranteed under the Convention. 

Consequently, alongside a “respectful,” cooperative judicial dialogue with the national courts accomplished through judgments delivered, the Court has to keep the support of the NGOs and the public. The support of the NGOs, in particular, is something that has greatly helped the development of the Convention system.

Some people might feel that it is not a proper judicial function to consider these issues – the legitimacy, the acceptability of the Strasbourg judgments (call it what you will), but, for me, it is a question of necessity. Ordinary people – not just the professionals: the legal profession, the elected politicians, the civil servants and so on - have to have confidence in the human rights “project” as an integral part of democratic society in modern Europe; and the Strasbourg Court is a crucial component in helping to maintain the public’s acceptance of the notion of international as well as national mechanisms in society to protect human rights. 

As far as the Strasbourg Court is concerned, there needs to be an understanding that “foreign” judges are not being overbearing and imposing illegitimate restrictions on their democratic processes, from far away on top of an ivory tower.

Interviewer’s observation: I think that in recent times the Court’s website has significantly improved. The HUDOC search engine, factsheets, multi-media, including podcasts of hearings in the Chamber and Grand Chamber, have also helped with transparency.     

Yes, recourse to multi-media has helped tremendously. One of the objects of broadcasting the public hearings on the web is that it gives the Court a face to the world. It makes the Court visible. The Court’s press team is there to help make sure the public understand what the Court is doing and why. Human rights are not, and should not be, the monopoly of the liberal left – or the conservative right, for that matter; they are universal and all those across the democratic political spectrum are entitled to have their views and policies on how best society should protect individual human rights while taking account of the legitimate general interest of the community.  The Court’s recourse to the internet, and web-casting of hearings in particular, helps prevent misinformation about pending cases and distortion of the arguments presented at the hearings. This especially concerns those countries where the media may not be as free as they are in the UK; but even in the older-established democracies, sometimes the media don’t get it quite right.  In sum, the Court’s use of the internet serves to foster transparency and enables the legitimacy of what the Court does to be established.   

Question: What do you think is the most significant contribution of the Court to the evolution of human rights in the Council of Europe?  

The Court is a key component of the Council of Europe human rights system, which includes other “control” entities such as Committee for the Prevention of Torture, the European Commission against Racism and Intolerance, the bodies under the European Social Charter and so on.  The Court is not merely one little brick in the wall, but it is not the whole wall either. It is one of the human rights institutions of the Council of Europe, along with the Committee of Ministers, the Parliamentary Assembly and now the Commissioner for Human Rights, the Congress of Local and Regional Authorities and the Conference of International Non-Governmental Organisations. All of these different entities go to make up an overall Council of Europe system for protection of human rights in Europe.  So the Court does not exist or operate in a vacuum. 

Neither should it be completely isolated from the national systems. What the Strasbourg Court does is act as a kind of international human rights insurance policy available to help everyone coming within the jurisdiction of those European States which have joined together in a collective endeavour under the European Convention.  It provides the opportunity in appropriate instances for an independent and impartial judicial review of human rights implementation outside the confines and pressures of the national legal order.

The Court provides a kind of anchor for this loose Council of Europe system; it has a decision-making competence vis-√†-vis the national authorities that the other entities do not have. One of the Council of Europe’s objectives is to ensure the protection and the promotion of human rights for the peoples of Europe. The Committee of Ministers establishes a work programme of inter-governmental cooperation for the Organisation, covering also human rights, and to that end it sets targets, monitors situations; the Parliamentary Assembly initiates ideas, has debates involving parliamentarians from all the member countries’ national parliaments and makes recommendations in the field of human rights; whereas the Court sets out the authoritative interpretation of the Convention law on the basis of applications lodged. The Court does not have a roving mandate to change the Convention law whenever it feels like it; its intervention depends upon, and is triggered by, cases. Cases are the catalyst for the Court’s building up a kind of European common law on human rights.

The Strasbourg Court is not in the game of imposing uniformity on all the 47 Contracting States. Its task is to help develop human rights and political democracy. People should work out for themselves through normal democratic processes at national level how they are to be legitimately governed. The Court’s task, apart from deciding the particular case, is to spell out the relevant values and principles to be taken into account by those who have to decide at national level.  Of course, you do get cases that set specific precedents for specific factual contexts, and that thereby establish a kind of uniform route to be followed. But generally speaking, the European Convention does not impose uniformity, as does happen in the EU. 

Thus, the Court is at the heart of the Council of Europe human rights system, where the Parliamentary Assembly advises, the Committee of Ministers legislates and the Court interprets. The result is that the Court produces the raw material (judicial rulings over a disparate area of human rights issues), and the Committee of Ministers sees to it that Member States execute the judgments in individual cases, as well as building on the case-law in general to draw up inter-governmental programmes of cooperation and action. The Committee of Ministers and the Parliamentary Assembly provide an element of reinforcement and follow-up to the judicial mechanism of human rights protection under the Convention. 

Question: How do you envisage the working symbiosis of the European Court of Human Rights and the Court of Justice of the European Union?

I hope it works. When the EU ratifies the Convention, it will not be as a Contracting Member State.  The EU is not a State or even a federation of States; it is an international organisation. So it may be that this Court should not treat the Luxembourg Court exactly the same as a national supreme or constitutional court. At the European level, there is likely to be, I suspect, a kind of split of responsibilities between Strasbourg and Luxembourg.  The Strasbourg Court evidently has a wider remit in terms of human rights and a wider membership.  The centre of gravity of this Court is human rights, whereas that is not so for the Court of Justice of the European Union in Luxembourg. The Strasbourg Court is at the apex of the human rights pyramid, if you like, and so will have the last word. Nonetheless, there is already a large degree of common ground - “European” harmonisation - between the Strasbourg and Luxembourg systems in the human rights domain, which has culminated in the adoption of the EU Charter of Fundamental Rights and the references to the Council of Europe’s Convention in the Lisbon Treaty.  Also the legal acts whose compatibility with human rights the Luxembourg Court is called on to decide are already the product of a harmonising process of 28 European States acting together. The margin of appreciation to be recognised – in appropriate contexts - to the Luxembourg Court may therefore perhaps be different from that recognised to a superior national court because we are dealing with a partner court of the Strasbourg Court. Again we shall have to wait and see.

It is not, I believe, to be regarded as some kind of negative political consequence for the Convention system that the EU has adopted its own Charter of Fundamental Rights with wording different from that of the Convention. In fact, this is a normal move in the modern development of political democracy that the holders of power should undertake a legally binding, visible engagement to respect human rights. 

There is no competition as such between the two Courts.  Both European Courts now adjudicate in the realm of human rights. The EU’s ratification of the Council of Europe’s Convention represents the making of a gesture to the peoples of Europe which demonstrates, among other things, that the two European Courts will be working together. The Council of Europe and EU judicial systems will work together to create shared standards of human rights. In my opinion, in both Courts there is a genuine desire to work in harmony. That is not to say that there will not be problems in the future, which will have to be resolved  - no one is infallible; but we will just have to deal with the issues as they arise, step by step. 

On the basis of my experience at the Luxembourg Court, there is a genuine commitment of that Court and its judges to promoting human rights in the EU legal order, and there is an understanding that for the human rights set out in the Convention the Strasbourg Court will have the final say. On the other side, it would appear that the agreement negotiated between the EU and the Council of Europe on the terms of the EU’s accession to the Convention contains safeguards to ensure that the monopoly of authoritative interpretation of EU law will continue to reside in the Luxembourg Court in the context of any proceedings against the EU and its Member States in Strasbourg.  

Interview conducted on 5th September, 2013.