CONCURRING OPINION OF JUDGE SERGHIDES

“Judicial intervention” (Article 4 of Protocol No. 7) in the light of the principle of effectiveness

1. I seek to emphasise, through this concurring opinion, the eminent importance of the principle of effectiveness or effective protection of human rights (hereafter referred to as “the principle”) in deciding the question as to whether a “judicial intervention” is necessary for the purposes of Article 4 of Protocol No. 7 to the European Convention on Human Rights (hereafter referred to as the “Convention”), in view of the discrepancy between the French and English versions on this: the former considers the judicial intervention necessary, while the English version does not.

2. The above question is decided in the negative in the judgment (see paragraph 95), thus following the English version of Article 4 of Protocol No. 7, namely, that “judicial intervention is unnecessary for the existence of a decision”. I fully subscribe to this view.

3. However, the principle, which is inherent in all Convention provisions, has a prominent role in the Convention, and it is not accidental that its name, role and function, are identical to the primary object and purpose of the Convention, namely, the effective protection of human rights. Furthermore, the principle is the only one identical in nature to the role and mission of the Court, which is to effectively protect human rights. Consequently, the immense importance of the principle cannot adequately be stressed, if the Court does not refer to it nominally (thus, by its name) and directly when dealing with the above question, as it did for example in Mamatkulov and Askarov v. Turkey . [148] It would not be considered as giving enough credit or value to the principle, if one were not to name it as such, while so designating all the other Convention principles.

4. The Court, however, in paragraph 91 of its judgment in the present case only indirectly and implicitly refers to the principle [149] , and in paragraphs 92, 94 and 95 of the judgment it refers to what I consider as aspects or requirements or capacities of the principle.

5. In interpreting and applying the Convention provisions, the Court usually makes the following interpretative choices, as it somehow does in the present case (see paragraphs 92, 94-95), which are, in my humble view, requirements or aspects or capacities of the principle [150] : a broad interpretation highly conducive to the essence of the right and favourable to the complainant, an interpretation which reconciles the two different versions of the Convention provision in question in the light of its object and purpose, and an interpretation reading the Convention as a whole and leading to internal and external harmonisation of the Convention provisions. All of these, which may appear as rules of interpretation, are interconnected and integrated with each other under the broader umbrella of the principle, which has a harmonising and controlling effect on them. Hence, the functioning and role of these rules of interpretation are better understood and become more important if they can be seen as aspects or requirements or capacities of the principle falling under the general umbrella of its scope, thus “the effective protection of human rights”.

6. It is my strong belief that a judge must be constantly and simultaneously mindful when interpreting and applying a Convention provision of what I consider as a “whole” and its “parts”: the “whole” being the principle which is the root and the substratum on which the Convention system is based and which points to the primary object and purpose of the Convention provision, and its “parts”, being its different aspects, or requirements or capacities, some of which are referred to above. This approach, which I consider complete and holistic, will help prevent the judge’s attention being distracted from the need to protect the core of the right and from the central issues surrounding it. It will also help him or her to offer to the complainant a practical and effective and not a theoretical or illusory protection of his or her human rights. That would be my proposed approach also to the present case.

7. It is my humble view that the Court’s reasoning in the present case would become clearer, stronger, and more coherent and convincing if it were to be seen in the context of the principle together with the principle of good faith. I also refer to the latter principle because this is an important element of interpretation under Article 31 § 1 of the Vienna Convention on the Law of Treaties (VCLT) which overlaps with the principle of effectiveness. [151]

8. The holistic approach followed in my opinion under the guidance of the principle is also supported, a fortiori , by what it is stated in paragraph 91 of the judgment, namely that “the principles of autonomous interpretation and evolutive interpretation, and that of margin of appreciation ... require the provisions of the Convention and the Protocols thereto to be interpreted and applied in a manner which renders their safeguards practical and effective, not theoretical and illusory” (this is what I describe in footnote 2 of my present opinion as an indirect and non-nominal formulation of the principle). Hence, if the operation of these other Convention principles can be seen within the context of the principle and the primary object and purpose of the Convention, that should apply even more so to what I consider in this opinion as aspects or requirements or capacities of the principle.

9. Like Article 31 § 1, also Article 33 of VCLT, refers to the object and purpose of the treaty concerned. Moreover, like the former, which is based on the idea that all elements of interpretation contained therein should be reconciled and treated as one unit, [152] also Article 33 § 4 of the VCLT, is based on the idea that for the interpretation of treaties authenticated in two or more languages, “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.” This provision, which is pertinent in the present case, is also based, in my view, on the principle of effectiveness. More precisely, it consists of an aspect or a requirement or a capacity of the principle. It can be said that it is this principle’s harmonising ability which makes the choice stipulated in Article 33 § 4 head in the right direction, as it does, in my view, in the present case, by showing preference to the English version of Article 4 of Protocol No. 7 as being the one which is consistent with the object and purpose of the said provision.

10. The above analysis under the broader umbrella of the principle strengthens my conviction that the Court was right in the present case in deciding that judicial intervention is not necessary for the purposes of Article 4 of Protocol No. 7.