On Friday 22 November 2019, a celebration in honour of Paul Lemmens’ emeritus status was held, in the company of many of his friends and colleagues. For this occasion, a number of them wrote a contribution for the wonderful Liber amicorum Paul Lemmens. In this blog series we draw attention to several contributions in this book. This week, Prof. Dr. Wouter Vandenhole discusses the principles and values underlying the separate opinions of judge Paul Lemmens.
Judge Paul Lemmens’ stance in separate opinions – both concurring and dissenting – has been informed by a mix of principles and values. More than a moral value canvas of meta-legal concepts like vulnerability and autonomy, a particular principled view on the institutional role of the European Court of Human Rights and its relationship with States Parties to the European Convention on Human Rights (ECHR) explains his positioning. In cases of torture, inhuman or degrading treatment (Art. 3), respect for institutional hierarchy prevails. In cases where the protection of private life or the home (Art. 8) is at stake, he tends to show Strasbourgian deference to domestic courts if they fully abide by the Court’s criteria, even if he disagrees with the substantive outcome.
Such a principled stance on qualified deference to national courts can be justified on procedural and strategic grounds, but it does raise questions about the value attached to substantive justice. Strasbourgian restraint and deference to domestic courts are not the only decisive elements though. More substantive considerations do seem to play a role as well, in particular the value of autonomy and the need to properly balance interests while due weight is being given to the best interests of the child.
Principle 1: Strasbourgian Restraint
Judge Lemmens often takes a principled, procedural stance on how decisive the qualified deference to national courts is in concrete cases. He does not grant blind deference to national courts: deference only applies to the extent that the Court’s criteria have been observed. Even if Judge Lemmens disagrees with the substantive outcome, he feels that the not-a-fourth-instance-court principle must prevail (R.L. and others v. Denmark).
A second, more strategic-pragmatic approach he adopts, is to refer to developments in the country concerned. An approach that takes jurisprudential developments before domestic courts seriously, may result in higher levels of human rights protection if domestic courts are willing to go beyond Strasbourg minimum standards. In his concurring opinion to the Paposhvili v. Belgium case for example, judge Lemmens pointed out how the consistently less restrictive approach by domestic courts had impacted on the Court’s understanding of the requirements of Article 3 ECHR with regard to the expulsion of seriously ill irregular migrants.
In other words, a major guiding principle in judge Lemmens’ separate opinions is deference to national courts – provided that they at least apply the European Court of Human Rights’ criteria. That deference has often led to the finding that no violation had occurred. Occasionally, it may also result in a further development of the Strasbourg Court’s case-law and thus in higher levels of human rights protection.
Principle 2: Deference to the Grand Chamber
In cases on an absolute right like Article 3 ECHR in the politically sensitive area of migration, deference to the Grand Chamber has guided judge Lemmens in his separate opinions. He thus applies the principle that it is up to the Grand Chamber to set and possibly review principles. In S.J. v. Belgium for example, he seemed to value this institutional hierarchy more than his own values and substantive principles. Similarly, in the Paposhvili v. Belgium case, he acknowledged that respect for the authority of the Grand Chamber, rather than a principled position, had guided his approach in the chamber judgment.
Nevertheless, Strasbourgian restraint and deference to domestic courts or to the Grand Chamber are not the only decisive elements in judge Lemmens’ assessment of alleged violations. More substantive considerations play a role as well, in particular the value of autonomy and the need to properly balance interests while due weight is being given to the best interests of the child.
In the case of Hämäläinen v. Finland on gender reassignment, judge Lemmens dissented and argued that it was “highly problematic to pit two human rights – in this case, the right to recognition of one’s gender identity and the right to maintain one’s civil status – against each other.” (para. 6) Although not explicitly stated, the meta-legal value of autonomy seems to have guided the minority view to which he subscribed.
Likewise, in cases where children are involved, he emphasizes that the best interests of the child require due attention and appropriate weight when balancing interests as part of the proportionality test. Often, this results in a less deferential stance towards the domestic judge in cases concerning the best interests of the child. Nonetheless, judge Lemmens has stopped short of reading strict positive obligations based on the best interests of the child into Article 8 ECHR (Paradiso and Campanelli v. Italy, R.L. and others v. Denmark, K.B. v. Croatia).
In sum, judge Lemmens combines principled deference to national courts and the Grand Chamber with substantive considerations of autonomy and the best interests of the child. It remains to be seen whether this mix of principled deference and substantive values can ensure that justice is done in all cases.
Wouter Vandenhole is a human rights and law-and-development scholar. He holds the human rights chair at the Law Faculty of the University of Antwerp, and is a member of the Law and Development Research Group.
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