INTRODUCTION

The Convention and the Court's jurisprudence have been considerably transformed in the last 50 years. In analysing factors of this transformation the focus has mainly been on the Court, member states and the political power relations between these two global players. There has been little research on other actors such as members of civil society. There has especially been a lack of research on the role of amicus curiae intervention in developing and transforming human rights protection. Despite the importance of amicus curiae for human rights litigants and despite its existence for more than 30 years, the practice of amicus curiae has never been systematically analysed. Most studies on amicus curiae can be divided into three categories: (1) studies addressing the role of NGOs before the Court; (2) those comparing amicus curiae from diff erent international institutions; and (3) those applying a descriptive approach to selected cases. In addition, there has been an empirical study by Van de Eynde which assessed 140 amicus curiae briefs submitted between 1986 and 2013 in order to map amicus curiae activities before the Court. However, the role of amicus curiae intervention has yet to be conceptualised.

Owing to the lack of a clear concept or theory, the role of amicus curiae interventions is also disputed. The case of Cestaro v Italy illustrates this well. The Italian government promoted the view that the role of amicus curiae intervention is to provide new or additional information or arguments pertinent for the decision of a case. In contrast, interventions that propose legal reforms or that denounce the lack of legislation in a certain area, as had been done by the three interveners in the case of Cestaro v Italy, are not compatible with the role of amicus curiae intervention before the Court. The Italian government hence asked the Court not to include the three interventions in the case file and to ignore them. The Court, in admitting and considering the interventions, disagreed with the Italian government and was obviously of the opinion that they were compatible with the role of amicus curiae.

This chapter thus comprehensively and empirically analyses the role of amicus curiae in shaping the Court and developing human rights protection in Europe.

PRELIMINARY OBSERVATION

In recent years the Court has increasingly decided cases which originated in civil disputes between two private parties. The Court, for instance, has decided cases originating in disputes on paternity, 1 between neighbours about border fences, on inheritance or cases involving the abduction of children. Yet the Court does not bear all consequences that come with the administration of civil justice. It neither encourages the participation of the third party who was a party to the national proceedings nor engages with third-party briefs if they are admitted to intervene. This can cause a severe imbalance in the administration of justice. The Court might, for instance, decide that a father cannot see his child again without ever having heard him.

In addition, interviews with judges have revealed that they disagree as to whether interventions by these third parties should be welcomed. While some judges have stated that the prevailing party in the national proceeding should be allowed to intervene, another judge was of the opinion that the Court should generally refrain from adding this type of third party to its proceedings.

This is also reflected in the concurring opinion of Judge Wojtyczek in the case of Bochan v Ukraine. He finds the discretionary nature as well as the Court's current practice to allow individuals to intervene only sometimes inadequate since it ‘does not equate to a guarantee of the right to be heard. It is not always used where the rights of third parties are concerned’.

Despite the increase of cases originating in civil disputes, the literature has largely neglected third parties who stand to be aff ected. The literature dealing with interventions before courts usually addresses amici curiae and only rarely refers to actual third-party interventions. This chapter aims at closing this gap by conceptualising the role of interventions by third parties who have been implicated in the facts of a case. Determining the role of third-party interventions might also assist the Court in deciding whether to accept or deny requests by third parties.

ORIGIN AND NOTION

The exact origin of third-party intervention is unknown. According to Chitty's description from 1833, third-party interventions stem from ecclesiastical law.

Over the last decades the Court has increasingly been engaged in constitutional decision- and law-making. The Court's judgments therefore do not just aff ect the parties to the particular case, but other member states, individuals and oft en European society at large. Unsurprisingly, a variety of entities try to participate in the Court's proceedings. The Court, in turn, has recognised that opening its doors to a myriad of interveners benefits its decision-making and enhances its legitimacy. It is against this background that the role of interventions has been shaped. In the following I shall summarise the role of interventions and their main implications.

THIRD-PARTY INTERVENTION: ONE TERM, THREE CONCEPTS

Under the term ‘third-party intervention’ the Court combines three diff erent concepts: amicus curiae, member-state and actual third-party intervention. As this study reveals, these types of intervention have very diff erent legal and philosophical roots. They therefore also diff er starkly in the role they play before the Court.

AMICUS CURIAE: STRENGTHEN THE COURT'S LEGITIMACY

The Court increasingly renders constitutional justice by deciding highly contested social and political issues such as gay marriage, assisted suicide or abortion. In so doing the Court frequently decides that national laws and practices that have been established in a democratic process are incompatible with the Convention. There is thus a tension between democracy and the Court's quasi- constitutional review. The Court can alleviate this tension by paying regard to constitutional features that have been developed in constitutional theory and by allowing members of civil society to contribute to these constitutional features. This reasoning is corroborated by data, revealing that amicus curiae contributes considerably to the constitutional features of argumentative representation, principled decision-making and acceptance of the Court's authority. It is thus the very role of amici curiae to strengthen the Court's legitimacy in its democratic environment.

With regard to principled decision-making, scholars have argued that the Court has to adhere to certain procedural safeguards, such as sound reasoning, consistent application of case law, transparency and accountability of rulings, subsidiarity, participation and neutrality. These scholars essentially argue for decision-making that takes into account constitutional principles of consistency, transparency etc.

CONTEXT AND SCOPE OF THE STUDY

In 2009, the Second Section of the European Court of Human Rights (the Court, the European Court) decided the case of Lautsi v Italy, which had been lodged by an atheist mother who opposed the compulsory display of a crucifix in her son's school. What was at stake, however, was much more than just a crucifix in a public school. The case dealt with the very question of the relationship between the state and the church or between politics and religion. When the decision was referred to the Grand Chamber it attracted interest never before seen: a seminar on ‘ religious symbols in the public space ‘ was organised by members of civil society, academics and government representatives; scholarly papers and memos were published; and the Patriarch of Moscow mobilised Eastern European states to oppose the judgment. Ultimately 10 member states, 10 non-governmental organisations (NGOs) and 33 members of the European Parliament submitted a third-party intervention. While some interveners argued that states had a wide margin of appreciation when deciding about their relationship to the church, others were of the opinion that only a neutral and secular state could comply with the European Convention on Human Rights (the Convention).

Although the Lautsi judgment was unprecedented in terms of reactions it produced, it is not an isolated case. As the Court increasingly decides highly debated and contentious issues, such as the legality of abortion, gay marriage or assisted suicide, more and more organisations, individuals and governments are potentially aff ected by the Court's judgment and thus seek to intervene in proceedings. Acknowledging a certain public interest in its decision-making, the Court accepted the first intervention in 1979. From 1998 the competence of the Court to ‘invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments’ has been enshrined in Article 36 of the Convention. Ever since, interventions have become an important mechanism enabling participation in the decision-making process of the Court. Members of civil society as well as states have recognised the potential of third-party litigation as a tool with which to influence international law.

PRELIMINARY OBSERVATION

Although member-state interventions are far less frequent than amicus curiae interventions, assessment of their role is nevertheless important. First, there is a disagreement between the Council of Europe, on the one hand, and members of civil society and scholars, on the other hand, as to whether member-state interventions should be encouraged. While the Council of Europe favours state interventions, members of civil society and scholars fear that states try to weaken established case law. It has been argued that in the case of Lautsi and Others v Italy, for instance, member states were successful in convincing the Court that display of crucifixes on public school walls was compatible with the Convention. It is therefore important to determine whether the Court is influenced by member-state intervention and how this is reflected in the Court's reasoning. Second, like amicus curiae, member states can contribute to the interpretation of the Convention as well as provide valuable information on domestic practices and regulations. This can enrich the Court's deliberation. Third, member-state intervention can foster implementation. Although judgments directed against another state are not formally binding, the Court's interpretation is nevertheless relevant to all its members. Member states might be more willing to implement judgments directed against another state if they know the Court came to its decision by also considering their arguments. In turn, through intervention by member states, the Court is in a better position to foresee the ramifications of its judgments on other member states.

Despite their importance, member-state interventions before the Court have never been analysed and their role has barely been addressed. Studies of member-state interventions mostly apply a descriptive approach to selected cases without shedding light on their role. Hence the aim of this chapter is to empirically and comprehensively analyse the role of member-state interventions before the Court. To this end, this chapter will proceed to examine the notion and origin of member-state intervention as this is closely connected to its role.

NOTION AND ORIGIN

The concept of member-state intervention has its origin in international arbitration. It first appeared in draft rules on international arbitral procedures developed by the Institute of International Law from the University of Ghent.