Biography

Judge Boštjan Zupančič was born on 13 May 1947 in Ljubljana in Slovenia.

He obtained a Law degree from the University of Ljubljana in 1970. From 1971 to 1972 he attended the School of Criminology at the  University of Montreal. He obtained a Master of Law (LL.M.) at Harvard Law School in Cambridge, Massachusetts in 1974. In 1981, he received a Scientiae Juris Doctor (S.J.D.) at Harvard Law School.

From 1970 to 1976 he was a Professor of Law, at University of Ljubljana. He worked as a professor of Law at New York Law School from 1977 to 1979. He was an Associate Professor at University of Iowa at the Law School faculty in 1980 and at Fordham University’s Law School in 1981. He was Distinguished Visiting Professor in 1981 and full Professor of Law, Seton Hall University, Law School in 1986. Since 1988 he is full Professor of Law at University of Ljubljana. He was First Vice-President (for academic affairs) at University of Ljubljana, from 1989 to 1992.

He became a Judge at the Constitutional Court of Slovenia from 1993 to 1998 and a Member and Vice-Chair of the United Nations Committee against Torture (Geneva), from 1995 to 1998. He was President of Section from 1 November 2004 to 31 January 2008. Currently he holds the position of Judge of the European Court of Human Rights. He holds this position since 1 November 1998.

The Binding Nature of the Judgments of the ECHR and the Universality of Human Rights

A Lecture by Judge Boštjan Zupančič, Judge, the European Court of Human Rights

Good morning to everybody. I must say I am quite happy to appear in this context to say a few words, more technically, I should say about the functioning of the European Court of Human Rights. Legally speaking, the judgments of the European Courts of Human Rights are bestowed on the states which are party to a particular dispute. The convention is explicit in saying that the judgments are directly binding on the state and the party concerned. But it does not say that the judgments are binding erga omnes. In constitutional law we distinguish between the erga omnes effect which is against everybody, where the judgments become a source of law (Rechtsquelle in German) on the one hand; and on the other hand, the inter parties effect of the judgments which is what the convention actually says. In other words, when we are talking about the universality of human rights; in principle in the beginning of the functioning of the European Courts of Human Rights, the judgments were not a source of law. They did however become a source of law as time went on because it was obvious that the de facto binding measures of the judgments is part of the story that is happening in Strasbourg.

In other words, if a similar case arose in a different context with different parties involved and with a different state involved in the dispute, the judgment in the previous case would be binding. In other words, we’re talking about something which is very familiar to the common laws which is the idea that alike cases should be decided alike. Again, I am emphasizing that the convention doesn’t foresee that the judgments of the European Court would be a source of law, but de facto this is happening because everybody knows that a new case is coming from whatever country, from Spain to Russia, from Norway to Cyprus, will be adjudicated, it will be perceived, it will be decided according to the old precedent. In other words, if you open any case rendered by the section of 7 judges or the Grand Chamber of 17 judges you will find today, citations of many cases previously decided by this court. That is part of the general story which is at least the context of 800 million people from Vladivostok to Reykjavík, to Limassol in Cyprus. We are making human rights universal. This is based on the individual petition of member states, and it is parallel to what we call in constitutional law amparo (Recurso de amparo) or Verfassungsbeschwerde, which is the right of the individual to raise the issue in front of the constitutional court of his country, and likewise in front of the European Court of Human Rights. In fact, the European Court of Human Rights is in many cases today already the only instance which is above the constitutional court of the particular country, whether that be Russia, Slovenia - but of course, I must say that many countries do not have a constitutional court. Some of those who have a constitutional court like France, Conseil Constitutionnel; they don’t have an individual petition that would make the court competent to give it jurisdiction over a particular case. So we have a body of precedents growing in many areas. All the constitutional courts that have individual petitions on the one hand produce their own precedents, and the other question is to what extent are these judgments in accordance with the judgments of the European Court of Human Rights? Therefore you have a complex mechanism which provides for an ongoing process, due process of law or law in action in all the countries. Again I emphasize that some countries do not have a constitutional court or if they have a constitutional court, they do not have an individual application to the constitutional court: as I said amparo or Verfassungsbeschwerde. But those that do are better protected so to say, vis-à-vis, the Strasbourg Court because if you have a constitutional court like Turkey, which introduced one about 10 years ago, then the issues might be decided at home so they need not be decided in Strasbourg; which is cheaper and of course the state is not then stigmatized by the condemnation it might receive in one of the sections or in the Grand Chamber in Strasbourg.

The most interesting question which has developed since I came to the court in 1998; and I am now the most senior judge in the court, except for one colleague. The interesting thing that happened in the meanwhile is as follows. When I came to the court in 1998, the violations of procedural rights especially in criminal law were decided according to an incantation formula, if I can say so: which said that the court would not speculate about of the outcome of a case. In other words, you had a case in Italy for example; somebody sitting in a prison of Brindisi and I am referring to a particular case, and he was denied his right to cross examine his witnesses in a trial against him in Italy. At that time the court would say, ‘oh well there has been a violation of your procedural rights; the due process has been violated’. This is not compatible with Article 6 of the convention but there is nothing we can do so we’ll give you 1000 euro of damages; this is exactly what happened because ‘you must suffered a little because you were not able to cross examine the witnesses against you’ and that is the end of the story because we will not speculate about the outcome of the case. In other words, the court here in Strasbourg was saying, ‘we don’t know what would have happened if you had had the right to cross-examine the witnesses against you in that trial in Brindisi, Italy’. Then came a case called Scozzari Giunta in Italy which was the first case in which the court said that restitutio ad integrum was its own power to pronounce. I will explain immediately what that means. According to Article 41 the court can sanction a violation of a particular state by giving money. But from that time on, from the case of Scozzari and Giunta versus Italy on, the court had suddenly the right to require the state to re-instate the previously unlawful situation in terms of human rights. In Scozzari and Giunta a mother and grandmother were deprived of their children who were put in an ‘Il Forteto’ next to Florence in Italy. But the court has decided that they are not only entitled to damages according to Article 41, but they are entitled to have the children back from that ‘Il Forteto’. Italy decided to obey that judgment of the court which was probably the most revolutionary new precedent of that time. To give the children back and some very important other cases, Borowski for example have followed from that. Therefore from that time on, in many cases the court requires a state to simply reinstall the lawful situation which has been breached according to the judgments of the court.

Now this is a part of the story. The other part of the story is as follows; many states have since 1998, which is the starting date of the so called ‘New Court’, installed mechanisms at home. We are by a procedural violation mostly in criminal law but also in civil law matters. It´s required to be reprocessed by the States. Switzerland was the first to engage in this kind of obligation. UN Letter´s obligation, vis-à-vis the court and the Swiss case ‘Tierfabriken Schweiz versus Switzerland’ is the most important case in this respect. What does that mean? It means that the states have unilaterally, spontaneously obliged themselves to reprocess and reopen the proceedings in a particular situation because the court has found a violation of human rights. Switzerland has the model for this, it has the requirements in criminal law, in civil law and in amnesty law, and some other states like Slovenia for example, have limited themselves to the reprocessing of the criminal cases.

But the interesting thing is what happens once this law in a particular country, whichever, is put into action. In other words, the court in Strasbourg will find the violations in the internal law of the country, let´s say Poland, and then gives the right to the applicant to request a reopening of the trials against them. And the states must then take that into account; that´s why I´ve talked about the binding nature of the judgments of the ECHR - the judgments of the court. Not only in its operative part, but also in the spirit. We, the Europeans, are used to a continental interpretation of the judgment, in which the operative part, the so called dispositive, is binding and the rest of the judgment is merely an explanation, a motivation of the judgment. However, here when the ping pong starts between the state and the court like in the case of the ‘Tierfabriken Schweiz versus. Switzerland’ or in a case called ‘Steck-Risch versus Liechtenstein’ in 2010: in those two cases, the states concerned -  Switzerland and  Liechtenstein - had in fact reopened the proceedings, but the applicants were not happy with this kind of reprocessing of the situation and came back to Strasbourg. In other words, the applicant said that there had been another violation on the part of his country, because they have reopened the proceedings but they didn´t follow the spirit of the judgment.

What does this have to do with the universality of human rights? Obviously there are many inspiring writings about the universality of human rights. Here we are talking about something very specific, and if the judgments of the court are binding de facto mainly on every state in the European continent, then the violation of that right, insofar as it comes to Strasbourg to be decided, is something that is bound by precedent. Again, we in Europe did not have one inkling about the part of precedents, except perhaps in the French administration of Hollande before it has happened. The Constitution of courts in particular countries are now bound by their own precedents and people are bound by their own precedents. But there are maybe three or four different levels; you can have a de facto binding effect, because everybody knows that the new case is going to be decided in the way of the old case, therefore a like case should be decided alike. It can be formally binding, like in German constitution, court judgments may be formally binding on everybody. And then on top of that, you can have a situation where the judgment is binding as a source of law which is exactly what you have in the United States. In the United States the Supreme Court judgments are binding to everybody. An then of course you have a pyramid on the top; you have the superior court, then you have certain courts, nine courts or more, and then than on the bottom of the pyramid you have all of the extra courts. So, if somebody in the system noticed that a particular decision by a decent court in Brooklyn or New York is not in accordance to the Supreme Court precedents, he or she can raise the issue and win on appeal before that. But the situation here is one of a pyramid; as I say you have the Superior Court and then the message of the Superior Court going down to the bottom of the pyramid where the system is becoming sort of universal because it follows the path dictated by the Superior Court.

Now the European Court of Human Rights is in a different position. This is a type of pyramid but underneath the type of pyramid you have 47 different countries. In other words, when the European Court of Human Rights which renders adjustments, says for example, as I said before, that in a situation where somebody is deprived of his/her right to cross and examine the witnesses, if that judgment is pronounced vis-à-vis to Italy it is de facto binding to everybody. But the way this is going to be interpreted in Russia or in Azerbaijan or in Iceland will be maybe very, very different. In other words, there is one type of pyramid and immediately then you have 47 different pyramids. And the universality of human rights, I’ll conclude with that, the universality of human rights, in that sense, depends on the concordance of reactions in different countries. Of course there is no way to control that; Azerbaijan´s reaction will be maybe totally different from the reaction of the United Kingdom. In other words, the universality of Human Rights in this space of 800 million people depends entirely on the way that lawyers keep domestic jurisdictions well communicated to the different types of pyramid around them.

Thank you very much.