© Natasa Mavronicola, Lecturer in
Law, Queen’s University Belfast
([email protected])
Please do not quote or circulate
without permission
World Congress of Constitutional Law
Workshop 10: The constitution and illiberal democracies
Paper title: Absolute rights, unpopular minorities, and the meaning of democracy
Author:
Natasa
Mavronicola,
Lecturer
in
Law,
Queen’s
University
([email protected])
Belfast
Abstract
-Democracy and human rights are often portrayed as ‘two sides of the same coin’.1 This is often done
in reference to quintessentially political rights such as the right to vote, the right to freedom of
expression, and the right to freedom of association and assembly. Much academic commentary since
the 1990s emphasises the mutually reinforcing nature of the relationship between democracy and
human rights and, further, supports the concept of a right to democracy.2
Yet what of rights that are not strictly tied to the procedural fulfilment of democratic decisionmaking – particularly if such rights claim ‘absolute’ status? This paper addresses this issue. It
considers what an absolute right entails and zooms in on the right enshrined in Article 3 of the
European Convention on Human Rights (ECHR), which establishes that no one shall be subjected to
torture or inhuman or degrading treatment or punishment, outlining two broad areas in which such a
right can operate to protect marginalised, unpopular or voiceless minority groups against
majoritarian will or executive ‘public interest’ arguments.
It then assesses how the nature and implications of an absolute right such as Article 3 ECHR can be
seen to relate to democracy and examines the potential for defining democracy in a way that
encompasses respect for such rights, or for reconsidering the limits of democracy in light of such
rights. It is suggested that the account provided indicates that the relationship between human rights
and democracy must cease to be viewed through broad-brush references to inter-dependence and
mutual reinforcement. This entails that public lawyers must confront the need to address precisely
and unequivocally what we mean when evoking the idea(l) of democracy, and notably ‘constitutional
democracy’,3 particularly if we wish to have a lucid and honest account of its relationship with
fundamental rights. In the European context, the European Court of Human Rights is called upon to
provide such an account in its interpretation of human rights within ‘democratic societies’.
1
Henry Steiner, ‘Two Sides of the Same Coin? Democracy and International Human Rights’ (2008) 41 Israel Law
Review 445.
2
See, for instance, Thomas M Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 American Journal of
International Law 46.
3
See, for instance, Luigi Ferrajoli, ‘The normative paradigm of constitutional democracy’ (2011) 7(1) European
Constitutional Law Review 5; and Koen Abts and Stefan Rummens, ‘Populism versus democracy’ (2007) 55(2) Political
Studies 405.
1
INTRODUCTION
Democracy and human rights are often portrayed as ‘two sides of the same coin’.4 This tends to be
done in reference to the quintessentially political rights encompassed in the right to vote, the right to
freedom of expression, the right to freedom of association and assembly, and others, and indeed
Henry Steiner largely confines his discussion to these. Much academic commentary since the 1990s
considers the mutually reinforcing relationship between democracy and human rights and, further,
supports the concept of a right to democracy.5 For some, the earlier ‘trend’ to acknowledge and
discuss a tension or even conflict between democracy and human rights, is now out of fashion, or is
seen as a simplistic, thin account of the two important concepts, particularly in light of the more
inclusive concept of ‘constitutional democracy’.6
Yet what of rights that are not strictly tied to the procedural fulfilment of democratic decisionmaking – particularly if such rights claim ‘absolute’ status, as is the case with Article 3 of the
European Convention on Human Rights (‘ECHR’), which provides that no one shall be subjected to
torture or inhuman or degrading treatment or punishment? This paper addresses this issue. It
considers what an absolute right entails and gives an outline of its concrete legal implications
focusing on the right enshrined in Article 3 of the ECHR. After briefly considering two broad areas
in which the right operates to protect marginalised or unpopular minority groups against majoritarian
will or arguments for the public interest, it then assesses how the nature and implications of this
absolute right can be seen to relate to democracy and what this entails with regard to framing the
relationship between democracy and human rights.
The analysis centres on three elements:
(i)
the extent to which Article 3 ECHR operates to ‘trump’ the will of majorities and/or of
‘democratic’/majoritarian or politically accountable institutions and/or the latter’s conceptions of the
public interest;
(ii)
the protection conferred by Article 3 ECHR on unpopular minorities who are often voiceless
in the democratic process; and
(iii)
the potential for defining democracy in a way that encompasses respect for a right such as
Article 3, or for reconsidering the limits of democracy in light of such right(s).
I suggest that the interplay outlined in this paper indicates that the relationship between human rights
and democracy must not, or at least not only, be viewed through rose-coloured spectacles or through
broad-brush references to inter-dependence and mutual reinforcement. I argue that the definition and
delimitation of the absolute right enshrined in Article 3, among other rights, can have a direct impact
4
Henry Steiner, ‘Two Sides of the Same Coin? Democracy and International Human Rights’ (2008) 41 Israel Law
Review 445. From the perspective of ‘civic republicanism’, Loughlin refers to them as ‘twin sides of the same coin’ Martin Loughlin, ‘Rights, Democracy, and Law’ in Tom Campbell, K.D. Ewing and Adam Tomkins (eds) Sceptical
Essays on Human Rights (Oxford: OUP, 2001), 44.
5
See, for instance, Thomas M. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 AJIL 46; see also
David Beetham, Democracy and Human Rights (Polity, Cambridge, 1999); Sandra Fredman, ‘Scepticism under Scrutiny:
Labour Law and Human Rights’ in T. Campbell, K. Ewing and A. Tomkins, eds, Sceptical Essays on Human Rights
(Oxford, Oxford University Press, 2001). Furthermore, paragraph 8 of the 1993 Vienna Declaration, provides:
‘Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually
reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic,
social and cultural systems and their full participation in all aspects of their lives.’ UN General Assembly, Vienna
Declaration
and
Programme
of
Action,
12
July
1993,
A/CONF.157/23,
available
at
http://www.unhcr.org/refworld/docid/3ae6b39ec.html [last accessed 19 May 2013].
6
See, for instance, Luigi Ferrajoli, ‘The normative paradigm of constitutional democracy’ (2011) 7(1) European
Constitutional Law Review 5; and Koen Abts and Stefan Rummens, ‘Populism versus democracy’ (2007) 55(2) Political
Studies 405.
2
on the definition or delimitation of democracy. This entails a need to confront precisely and
unequivocally what is encompassed in evoking the idea(l) of democracy, particularly if we are to
have a lucid and honest account of its relationship with human rights. Given the significance of the
nature and implications of Article 3 ECHR, the European Court of Human Rights (‘ECtHR’) must
confront the need to provide an authoritative definition of its conception of democracy, in light of the
interplay outlined in this paper, as well as the wider interplay between allusions to democracy and
the rights enshrined in the ECHR.
DEMOCRACY: A BRIEF OUTLINE
Democracy is a word used in everyday discussions, academic works, political debates, and other
varied contexts. A key element of the usage of the word ‘democracy’, especially in relation to human
rights, is arguably the nuanced or sometimes stark difference in the content attributed to it by each
and every articulation and articulator of it, alongside a distinct lack of candid and exhaustive
definition of this content in such articulations. For the purposes of this short paper, I will briefly refer
to a spectrum of meanings often attributed to the word ‘democracy’ and tentatively assess what the
predominant conception is.
Democracy’s origins are usually said to lie in the Athenian δημοκρατία (demokratia), which
translates as ‘rule by the people’ and which encompassed majority decision-making in gatherings of
citizens considered eligible to vote.7 Today, this has been translated to encompassing the will of the
people, expressed through free, periodic elections on the basis of universal suffrage, conveying the
authority of government, usually on a representative basis, as indicated by Article 21(3) of the
Universal Declaration of Human Rights.8 This, of course, raises significant definitional questions.9
The deliberative and participatory models also constitute relevant alternative procedural models. 10
Nonetheless, the broad parameters of this procedural conception of democracy are conveyed in these
requirements, as well as the additional – and fundamental – point concerning the ‘winners’ of such
process: the key aspect of majority rule. The will of the majority or ‘the greatest number’ underpins
the crucial decisions – be they those of electing representatives or those of legislating, to give two
examples – that lie at the heart of this conception of democracy. Sadurski refers to ‘majority-rule
based institutional design (which is, subject to all possible caveats and reservations, the irreducible
hard core of any democracy)’.11 On a more general level, Effeh points out that there cannot be any
valid definition of democracy that excludes the people's will or authority and suggests that
‘democracy must always be defined in relation to these core factors’.12
In a notable piece on the rights of the marginalised under the ECHR, Colin Harvey and Stephen
Livingstone point out that ‘[i]f the [ECtHR] is concerned with strengthening democracy and human
7
See Susan Marks and Andrew Clapham, International Human Rights Lexicon (Oxford: OUP, 2005), 62. See also,
generally, Josiah Ober and Charles Hedrick, eds, Demokratia: A Conversation on Democracies, Ancient and Modern
(Princeton University Press, 1996).
8
Article 21(3) of the Universal Declaration of Human Rights reads: ‘The will of the people shall be the basis of the
authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and
equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’ UN General Assembly,
Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at:
http://www.unhcr.org/refworld/docid/3ae6b3712c.html [last accessed 19 May 2013]. See further Tom Christiano,
‘Democracy’, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), available at
http://plato.stanford.edu/archives/fall2008/entries/democracy/ [last accessed 19 May 2013].
9
See Ubong E. Effeh, ‘Democracy and human rights: reappraising the rhetoric of "interdependence and mutual
reinforcement"’ (2007) Journal of International Trade Law & Policy 91.
10
For further analysis, particularly from the perspective of ‘civic republicanism’, see Loughlin, n 4 above.
11
Wojciech Sadurski, ‘Law's Legitimacy and 'Democracy-Plus'’ (2006) 26(2) Oxford Journal of Legal Studies 377, 393.
12
Effeh, n 9 above, 93.
3
rights protection, then it should take a clear stand with reference to those groups silenced within the
democratic process’.13 Part of this point highlights the problems raised in the particularisation or
concretisation of the democratic process and, in particular, the problem of exclusion. The process, as
defined in a given State, may exclude certain individuals either directly, for instance through explicit
disenfranchisement, or indirectly, for instance through particular definitions of citizenship. Such
commentary arguably raises the possibility of a conception of the democratic process that
accommodates the need to act for the benefit of and represent truly everyone, as well as perhaps the
need to consider who is excluded from the democratic process – outlined above – and why. This
would include groups ranging from children to prisoners to asylum-seekers.
The point encourages us to take a wider perspective from broad-brush procedural accounts, and it
can be linked to Lincoln’s ‘government of the people, by the people, for the people’ thesis, which
goes beyond the ‘by whom’ and incorporates the ‘for whom’ question.14 The emphasis on pursuing
the public interest efficaciously and sustainably captured by the ‘for the people’ thesis, even when
this may not correlate with the apparent contemporary wishes of the electorate, underlies the
distinction drawn by some between democracy and populism.15
Is there more? Lord Hailsham once referred to the UK system of parliamentary sovereignty as ‘an
elective dictatorship’.16 This was partly a reference to the dominance of the executive over the UK
legislature, but also partly an allusion to the need for further checks and balances to safeguard
something deeper that might be taken away by an unchecked, omnipotent Parliament, even when the
latter – at least the House of Commons – is a ‘democratic’ institution. This latter point is perhaps
what largely underpins current conceptions of ‘constitutional democracy’,17 which encompass not
only a procedural democratic aspect – as outlined above – but also a substantive aspect comprising
certain fundamental rights and freedoms. This notably includes rights that protect the democratic
process, such as freedom of expression, freedom of association, freedom of assembly, etc.18 Much
commentary on democracy suggests that ‘democracy’ does not, either in theory or in practice,
amount simply to majority rule.19 Further, Dworkin makes the point that democracy is imperfect
without individual liberties, suggesting that democracy requires a genuine political community based
on moral conditions including equal respect and concern for all participants.20
13
Colin Harvey, Stephen Livingstone, ‘Protecting the Marginalised: The Role of the ECHR’ (2001) 51 (3) Northern
Ireland Legal Quarterly 445, 445.
14
Abraham Lincoln, Gettysburg Address, 19 November 1863.
15
See Abts and Rummens, n 6 above; Cesare Pinelli, ‘The populist challenge to constitutional democracy’ (2011) 7(1)
European Constitutional Law Review 5.
16
Lord Hailsham, Richard Dimbleby Lecture, 14 October 1976.
17
See Jowell’s analysis of this in the UK context in Jeffrey Jowell, ‘Parliamentary sovereignty under the new
constitutional hypothesis’ [2006] Public Law 562. On the checks and balances point, see Dimitrios Kyritsis,
‘Constitutional Review and Representative Democracy’ (2012) 32(2) Oxford Journal of Legal Studies 297.
18
See, for instance, Ferrajoli, n 6 above. Steiner’s account in ‘Two Sides of the Same Coin?’ focuses largely on these, n 4
above. For the debate surrounding the potential conflict between protecting democracy and protecting such freedoms, see
Paul Harvey, ‘Militant democracy and the European Convention on Human Rights’ (2004) 29(3) European Law Review
407.
19
See, for instance, Amartya Sen, ‘Democracy as a universal value’ (1999) 10(3) Journal of Democracy 3, 9-10: ‘What
exactly is democracy? We must not identify democracy with majority rule. Democracy has complex demands, which
certainly include voting and respect for election results, but it also requires the protection of liberties and freedoms,
respect for legal entitlements, and the guaranteeing of free discussion and uncensored distribution of news and fair
comment. Even elections can be deeply defective if they occur without the different sides getting an adequate opportunity
to present their respective cases, or without the electorate enjoying the freedom to obtain news and to consider the views
of the competing protagonists. Democracy is a demanding system, and not just a mechanical condition (like majority
rule) taken in isolation.’
20
Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press, 1996),
ch 1. See further consideration of Dworkin’s thoughts on democracy below.
4
Considering the relationship between democracy and the ECHR, Letsas posits:
But we need not be puzzled here by any alleged conflict between democracy and the
ECHR. First, it was democracy in the first place that enabled the institutionalization of
human rights: the ECHR has been signed and ratified by the members of the Council
of Europe, in accordance with their domestic democratic procedures. Second, it is the
value of democracy again that, on the interpretivist account, forces us to examine past
legislation, both national and international, in order to determine the correct
interpretive principles. Had there been no past political decisions recognizing the
moral dimension of the rights protected, we would be unable to bring justice in as a
legally binding interpretative dimension. Third, we believe, independently of history,
that it would be very difficult to accept that there can ever be democracy without
people enjoying a sphere of personal liberty…21
In such commentary lies the ‘mutually reinforcing’ school of thought.22 Henry Steiner comments:
‘Democracy is a collective enterprise, a way of organizing political power within a community so as
to achieve collective self-determination. Together with human rights, its structure, institutions, and
processes constitute the fundamental framework in which individual choice is exercised in political
and other life.’23 He concludes: ‘Each, unaccompanied by the other, can realize only part of its
potential and survives at its peril. Together, the two complement and fortify each other. Today
human rights and democracy form part of the same grand narrative of aspiration and hope for our
sorry world.’24 These comments indicate that democracy and human rights are mutually reinforcing
in expressing individual and collective will. Such commentary centres on the instrumentality of each
enterprise (human rights and democracy) to supporting the other, for instance, the value of the
human right to freedom of expression in upholding democracy.25 Habermas also appears to suggest
that procedural democracy, in the deliberative form in which he interprets it, establishes the mutually
reinforcing nature of fundamental rights and popular sovereignty (in his words ‘the co-originality of
civic and private autonomy’), proposing that popular sovereignty operates to safeguard individual
rights while those rights are pre-requisites for the very exercise of popular sovereignty, arguing that
‘popular sovereignty and human rights go hand in hand’.26 Cohen further argues that the egalitarian
and liberal political values embodied, inter alia, in what he labels ‘religious, expressive, and moral
liberty’ should be seen as internal to democracy and not as constraints on it.27
But does this capture the ‘full story’ with regard to the relationship between democracy and human
rights? The analysis below suggests that it does not. Whether conflict is internal to ‘constitutional
democracy’, with its procedural and substantive pillars,28 or an external one, between democracy, as
21
George Letsas, ‘The truth in autonomous concepts: how to interpret the ECHR’ (2004) 15(2) EJIL 279, 303.
Letsas’ commentary also conveys an element of the ‘pre-commitment’ school of thought. See Loughlin, n 4 above, 46;
Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge: Cambridge University Press,
1984). See critique in Jeremy Waldron, ‘Precommitment and Disagreement’, in Larry Alexander (ed), Constitutionalism:
Philosophical Foundations (Cambridge: Cambridge University Press, 1998).
23
Steiner, n 4 above, 447.
24
Ibid, 476.
25
See Steiner, n 4 above; and Loughlin, n 4 above, 44.
26
Jurgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy
(Cambridge: The MIT Press, 1996), 127.
27
Joshua Cohen, ‘Democracy and Liberty’, in Jon Elster (ed), Deliberative Democracy (Cambridge: Cambridge
University Press, 1988), 187.
28
On the internal conflict perspective see Pinelli, n 15 above, 6: ‘Constitutional democracy results from continuous
adjustments of these potentially conflicting principles and institutions, which are open to diverse interpretations and,
thus, conflict.’
22
5
widely conceived, and (certain) human rights,29 it is one that requires acknowledgement and
transparent confrontation, notably by the ECtHR.
It would seem that on many, if not most, occasions when the term ‘democracy’ is used in passing,
but also in open accounts of the relationship between democracy and human rights, the full
articulation of the contours of the meaning of democracy is elided. Yet in many, if not most, such
allusions, and particularly when evoked in passing without an attempt at definition, it appears that
‘democracy’ tends to encompass, as a necessary but perhaps not sufficient element, some sort of
representative/participatory model of majority rule and/or pursuance of majority interests. This is
clear, for instance, in Letsas’ discussion of the interrelationship between democracy and the rights
enshrined in the ECHR,30 and in Steiner’s discourse in ‘Two Sides of the Same Coin?’.31 In light of
this observation, I move on to consider the interplay between the absolute right enshrined in Article 3
ECHR and democracy, by looking at what Article 3’s absolute nature entails both in the abstract and
in concrete protection of two sets of unpopular and marginalised minority groups. I then assess the
potential implications of this on delimiting the concept of democracy, offering alternative ways of
interpreting the relationship between Article 3 ECHR and conceptions of democracy. I argue that this
assessment shows that allusions to the mutually reinforcing relationship between democracy and
human rights are inadequate, both in terms of addressing arguable conflict and in terms of providing
clarity in the interpretation of the ECHR, and suggest that the ECtHR is compelled to provide an
authoritative account of how it broadly conceives the notion of democracy and its relationship with
the rights enshrined in the ECHR.
THE ABSOLUTE NATURE OF ARTICLE 3 OF THE ECHR
Article 3 of the ECHR has been described as an absolute right, as affirmed by the European Court of
Human Rights (‘ECtHR’ or ‘the Court’ or ‘the Strasbourg Court’) and many commentators. It is
important at this stage to point out that ‘[t]he European Court of Human Rights, and the Convention
itself, form an important part of both European and international constitutionalisation’,32 and in turn
the widely acknowledged constitutionalist function of the ECtHR vis-à-vis Contracting States to the
ECHR;33 and finally to observe that the jurisprudence of the ECtHR on Article 3 in particular, in
light of its absolute character and significance, has been described as possessing a ‘constitutional’
quality.34 In its case law, the Strasbourg Court focuses its discourse regarding what the absolute
nature of Article 3 entails on a juxtaposition, contrasting Article 3 to rights that allow for
‘qualification’: in the form of lawful derogations, exceptions or interferences (as opposed to unlawful
violations of rights).35
The ECtHR frequently reiterates:
29
On the perspective of human rights – and human rights adjudication – as ‘anti-democratic’, see, for instance, Nicholas
Lyell, ‘Whither Strasbourg? Why Britain should think long and hard before incorporating the European Convention on
Human Rights’ (1997) 2 European Human Rights Law Review 132, 136.
30
Letsas, n 21 above.
31
Steiner, n 4 above.
32
Fiona de Londras, ‘Dual Functionality and the Persistent Frailty of the European Court of Human Rights’ (2013) 1
EHRLR 38, 40 (citations omitted).
33
De Londras, ibid. See also Kanstantsin Dzehtsiarou and Alan Greene, ‘Restructuring the European Court of Human
Rights: Preserving the Right of Individual Petition and Promoting Constitutionalism’ [2013] PL 710.
34
Dzehtsiarou and Greene, ibid 714, specifically footnote 23.
35
See the detailed analysis in Natasa Mavronicola, ‘What is an “absolute right”? Deciphering absoluteness in the context
of Article 3 of the European Convention on Human Rights’ (2012) 12 (4) Human Rights Law Review 723.
6
The Convention prohibits in absolute terms torture and inhuman or degrading
treatment or punishment, irrespective of the victim's conduct. Unlike most of the
substantive clauses of the Convention and of Protocols 1 and 4, Article 3 makes no
provision for exceptions and, under Article 15 (2), there can be no derogation
therefrom even in the event of a public emergency threatening the life of the nation.36
This reflects the idea that an absolute right is one that can never be justifiably infringed and must be
fulfilled without exception, a proposition put forward by Gewirth. 37 In response to arguments
relating to States’ overwhelming need to protect themselves and their citizens from the threat of
terrorism, arguments which relate to the public interest (and, often, public will) aspect of democracy,
the ECtHR has added:
Article 3 enshrines one of the most fundamental values of democratic society. The
Court is well aware of the immense difficulties faced by States in modern times in
protecting their communities from terrorist violence. However, even in these
circumstances, the Convention prohibits in absolute terms torture or inhuman or
degrading treatment or punishment, irrespective of the victim's conduct.38
The ECtHR’s Grand Chamber has addressed the subjection of a kidnapper to threats of torture with a
view to revealing the whereabouts and potentially saving the life of the kidnapped child (upon which
the kidnapper confessed to the murder of the child). At the time when the threats took place, the
situation could conceivably be seen as something akin to a real life ticking bomb scenario. 39 The
Grand Chamber nonetheless affirmed:
The Court has confirmed that even in the most difficult circumstances, such as the
fight against terrorism and organised crime, the Convention prohibits in absolute terms
torture and inhuman or degrading treatment or punishment, irrespective of the conduct
of the person concerned. The nature of the offence allegedly committed by the
applicant is therefore irrelevant for the purposes of art.3.40
The absolute nature of Article 3 can thus be said to lie in three key elements:
1) It contains no in-built exceptions. This can be contrasted with the ‘qualified’ rights under the
ECHR, such as Articles 8, 9, 10, 11, which make provision for justified interference insofar as
‘necessary in a democratic society’ in the pursuit of a legitimate aim.41
2) No derogation from it is permissible. Article 15(2), which provides for derogation in the event of
war or other public emergency threatening the life of the nation, does not allow for derogation from
Article 3.42
36
Ireland v UK (1979-80) 2 EHRR 25, para 163.
Alan Gewirth, ‘Are There Any Absolute Rights?’ (1981) 31 (122) The Philosophical Quarterly 1, 2.
38
Chahal v UK (1997) 23 EHRR 413, para 79. See also Saadi v Italy (2009) 49 EHRR 30 at para 127
39
See Eirik Bjorge, ‘Torture and "ticking bomb" scenarios’ (2011) 127 Law Quarterly Review 196.
40
Gäfgen v Germany (2011) 52 EHRR 1, para 87.
41
See, for instance, Article 10(2) of the ECHR: The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary.
42
See Article 15(2) of the ECHR: No derogation from Article 2, except in respect of deaths resulting from lawful acts of
war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
37
7
3) The conduct of the victim is irrelevant with regard to his or her protection under Article 3.43
This entails that the right enshrined in Article 3 cannot be displaced. In that sense, it is the ultimate
‘trump’, to borrow from Ronald Dworkin’s analysis.44 The will of (what are at least widely perceived
to be) democratic bodies such as elected legislatures, cannot displace Article 3. Arguments
concerning the public interest, including the need for State action to protect life, again cannot
displace Article 3. Article 3 therefore encompasses a sphere of legal obligation which trumps the will
of the majority and (what some, notably elected or politically accountable individuals, might claim to
be) the interest of the majority, two elements often seen to lie at the heart of notions of democracy,
notably the ‘by the people, for the people’ ideal, as discussed above.
THE PROTECTION
ARTICLE 3
OF INDIVIDUALS BELONGING TO MARGINALISED MINORITY GROUPS UNDER
As indicated in the discussion concerning Article 3’s absolute nature above, the right enshrined in
Article 3 will trump provisions reflecting the public will (if imperfectly conveyed), as expressed
through representative institutions such as the House of Commons in the UK Parliament, or acts by
the executive purporting to be done in the public interest (by the people/for the people). Indeed,
Article 3 has clearly done so on a number of occasions, notably often protecting individuals
belonging to unpopular, marginalised, or politically powerless minorities.
Examples abound. Two key minority groups that can be taken as focal points for illustrative purposes
are prisoners and asylum-seekers. Both of these groups have characteristics that are significant for
the purposes of our discussion. First, at least in the UK, they do not have the vote and so are not
direct participants in the democratic process while they hold their status as prisoners or asylumseekers, as such process is outlined above.45 In many other countries within the Council of Europe,
their political participation is significantly restricted.46 Secondly, they are not high in popularity
amongst those who do have a voice in the democratic process.47
The case law regarding the protection of prisoners under Article 3 is extensive and robust. The Grand
Chamber has affirmed that a deeply unpopular individual who was imprisoned for having kidnapped
43
See Chahal v UK, n 38 above, para 79. For some of the complexities surrounding this point, see Natasa Mavronicola,
‘Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg’s discourse on the
justified use of force’ (2013) 76(2) Modern Law Review 370.
44
Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).
45
Harvey and Livingstone point out that ‘[f]ew are more silenced, at least as regards official political discourse, than
prisoners’. See Harvey, Livingstone, n 13 above, 448.
46
Regarding prisoners, see Isobel White (Parliament and Constitution Centre), Standard Note on Prisoners’ Voting
Rights (House of Commons Library, 2013), available at http://www.parliament.uk/briefing-papers/SN01764 [last
accessed 19 May 2013]. The issue has been the subject of substantial ECtHR case law, which has made it clear that
blanket bans are contrary to the right to vote enshrined in Article 3 of Protocol 1 of the ECHR: see Hirst v United
Kingdom (No2) (2006) 42 EHRR 41 and Scoppola v Italy (No 3) (2013) 56 EHRR 19. Regarding asylum-seekers, see
NGO Network of Integration Focal Points, Policy briefing on the civic and political participation of refugees and
migrants in Europe, available at http://www.ecre.org/component/content/article/57-policy-papers/180-integration-policybriefings.html [last accessed 19 May 2013].
47
An indication of the (media-fuelled) trend for marginalising these groups and portraying them in a negative light – and
the unpopularity of judgments protecting their human rights – can be glimpsed in ‘A great day for British justice: Theresa
May vows to take UK out of the European Court of Human Rights’, The Mail Online, 3 March 2013, available at
http://www.dailymail.co.uk/news/article-2287183/A-great-day-British-justice-Theresa-May-vows-UK-European-CourtHuman-Rights.html?ito=feeds-newsxml [last accessed 19 May 2013]. See also Daniel Boffrey, ‘Immigration is British
society's biggest problem, shows survey of public’, The Observer, 13 January 2013, available at
http://www.guardian.co.uk/uk/2013/jan/13/immigration-british-society-biggest-problem [last accessed 19 May 2013].
8
and murdered a child but who had been threatened with torture in breach of Article 3 was entitled to
compensation in Gäfgen v Germany.48 Other cases have established extensive requirements under
Article 3 in relation to the treatment of prisoners and to conditions of detention. One example
amongst many concerning prison conditions and Article 3, Peers v Greece49 established that
confinement in a cell with no ventilation and no window in summer and where the applicant had to
use the toilet in the presence of another inmate and vice versa amounted to inhuman treatment. The
subjection to similar conditions for detainees and asylum-seekers were recently found to be in breach
of Article 3 in MSS v Belgium and Greece – Greece’s dire financial straits afforded no excuse.50
Moreover, special measures are required to protect a prison inmate where he or she faces a suicide
risk.51
The Court has also imposed stringent duties under Article 3 on State authorities to provide adequate
healthcare to prisoners. In a recent case, the Strasbourg Court stipulated that the medical care
provided ‘must accommodate the legitimate demands of imprisonment but remain compatible with
human dignity and the due discharge of its positive obligations by the State’, suggesting that ‘it is
incumbent upon the relevant domestic authorities to ensure, in particular, that diagnosis and care
have been prompt and accurate, and that supervision by proficient medical personnel has been
regular and systematic and involved a comprehensive therapeutic strategy’.52 These duties are not
without cost, and they go above and beyond the duties the State owes individuals within its
jurisdiction who are not in prison. They are significant in protecting a vulnerable group which is
subject to the control of the State.
The Court’s case law is just as robust in protecting asylum-seekers. Cases such as Chahal v UK,53
Saadi v Italy,54 MSS v Belgium and Greece55 and Hirsi Jamaa v Italy56 have affirmed robust
obligations regarding the prohibition of expelling individuals to States where they face a real risk of
torture or other Article 3 proscribed ill-treatment, regardless of significant public support for their
expulsion57 or the arguments of ECHR State governments (particularly the UK) as to their national
security interests.58 This has been noted to have significantly expanded the protection conferred to
this group of individuals by refugee law.59 Inhuman or degrading detention conditions of asylum48
Gäfgen v Germany (2011) 52 EHRR 1.
Peers v Greece (2001) 33 EHRR 1192.
50
MSS v Belgium and Greece (2011) 53 EHRR 2.
51
Keenan v UK (2001) 33 EHRR 913; Riviere v France (App No 33834/03), Judgment of 11 July 2006.
52
Jashi v Georgia (App No 10799/06), Judgment of 8 January 2013, para 61.
53
See n 38 above.
54
See n 38 above.
55
See n 50 above.
56
(2012) 55 EHRR 21.
57
For a consideration of the politics surrounding asylum, see – among many studies – Nick Lynn and Susan Lea, ‘“A
phantom menace and the new Apartheid”: the social construction of asylum-seekers in the United Kingdom’ (2003)
14(4) Discourse & Society 425; Paul Stratham, ‘Understanding Anti-Asylum Rhetoric: Restrictive Politics or Racist
Publics?’ (2003) 74 The Political Quarterly 163. The Daily Mail’s portrayal of some of the debate concerning asylum in
April 2011 is also instructive: James Slack, ‘Stop meddling in asylum cases, unelected Euro judges warned by 47
countries’, The Mail Online, 28 April 2011, available at http://www.dailymail.co.uk/news/article-1381351/Stopmeddling-asylum-cases-unelected-Euro-judges-warned-47-countries.html [last accessed 19 May 2013].
58
See, for instance, Chahal v UK, n 38 above, para 79: ‘The Court is well aware of the immense difficulties faced by
States in modern times in protecting their communities from terrorist violence. However, even in these circumstances,
the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the
victim's conduct.’ But see the critique of some statements of the Fourth Section of the ECtHR in Ahmad v United
Kingdom (2013) 56 EHRR 1 in Natasa Mavronicola, Francesco Messineo, ‘Relatively absolute? The undermining of
Article 3 ECHR in Ahmad v UK’ (2013) 76(3) Modern Law Review 589.
59
See Francesco Messineo, ‘Non-refoulement Obligations in Public International Law: Towards a New Protection
Status?’, in S. Juss (ed.), Research Companion to Migration Theory and Policy (Ashgate, 2012), available at
49
9
seekers have also been attacked by the Court, as indicated earlier, in MSS v Belgium and Greece, in
the face of pressures exerted by the financial situation in Greece.60
Thus, although, at first sight, [m]inorities do not…have a special place within the Convention’,61 the
extent of protection conferred on these groups by Article 3 ECHR is substantial and stands firmly
against their marginalised and arguably unpopular position in most ECHR States.The absolute nature
of Article 3 ECHR operates squarely to trump political will within the sphere of Article 3’s
application. In this regard, the significant impact of Article 3 in protecting these individuals enables
us to reconsider the interplay between and the delimitation of the notions of democracy and human
rights.
THE
ABSOLUTE RIGHT ENSHRINED IN
INTERPLAY
ARTICLE 3
AND DEMOCRACY: CONCEPTUALISING THE
Democracy makes its appearance repeatedly in the text of the ECHR. As Rory O’Connell points out:
‘The concept of a democratic society is a unifying thread throughout the Convention. The
Convention identifies “an effective political democracy” as being one of the key guarantees of
human rights and fundamental freedoms (Preamble). When it comes to allowing rights to be limited
this may only be done in so far as is “necessary in a democratic society” (Arts 8, 9, 10, and 11).’ 62
The Court has been called upon to consider what is ‘necessary in a democratic society’ in much of its
case law regarding absolute rights, not least the right to freedom of religion.63 Yet the wording is
notably absent in Article 3 ECHR, due to its absolute nature, as examined above.
If there is no room for infringing Article 3 insofar as necessary in a democratic society, what is the
relationship between democracy and Article 3 ECHR? Strikingly, in its discourse on the absolute
nature of Article 3 of the ECHR, Strasbourg often describes Article 3 as enshrining ‘one of the most
fundamental values of democratic society’.64 It is not always clear what conception of ‘democratic
society’ the ECtHR is contemplating when making this statement. Certainly, a society in which
political opponents of the ruling government face a risk of torture or other proscribed ill-treatment
strikes one as a quintessentially dictatorial one. Yet Article 3 does not exhaustively protect political
freedoms – the right not to be subjected to torture or inhuman or degrading treatment or punishment
captures a much wider scheme of situations than that of the tortured political prisoner.
Indeed, Article 3 possesses two significant characteristics, which render its interplay with
conceptions of democracy particularly interesting. The first is its absolute nature, which does not
allow for interference insofar as ‘necessary in a democratic society’; the second is that Article 3 is
not indelibly connected to the realisation of efficacious democratic procedures. The latter point is to
do with the fact that Article 3 is not as straightforwardly a political right tied to the democratic
process as are the right to vote, freedom of expression, and freedom of association, to give three
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1802800 [last accessed 19 May 2013], 12-15; for further analysis of
the case law on refoulement under the ECHR and primarily Article 3 ECHR, see Kees Wouters, International Legal
Standards for the Protection from Refoulement (Intersentia, 2009), 187-358.
60
See n 50 above.
61
Charles Marquand, ‘Human rights protection and minorities’ [1994] Public Law 359, 365.
62
Rory O’Connell, ‘Towards a Stronger Conception of Democracy in the Strasbourg Convention’ (2006) European
Human Rights Law Review 281, 283.
63
See, for instance, Şahin v Turkey (2007) 44 EHRR 5, paras 100-111. See also the commentary on the first judgment in
Lautsi v Italy by Susanna Mancini, in ‘The crucifix rage: supranational constitutionalism bumps against the countermajoritarian difficulty’ (2010)
64
See Chahal, n 38 above, para 79.
10
examples.65 In light of these two elements, I proceed to consider three potential strands of thought on
the interplay between the absolute right enshrined in Article 3 ECHR and democracy.66
The first potential approach is to adopt a construction of the notion of ‘democracy’ that admits not
only of rights that are instrumental to the democratic process, but also of rights that may trump the
outcomes of such democratic process but safeguard certain fundamental parameters of human
dignity. Such an approach would reflect the ECtHR’s claim that Article 3 enshrines ‘one of the most
fundamental values of democratic society’.67 This is an approach that would assign a particularly
intricate meaning to the notion of ‘democracy’, delimiting its procedural limb in such a way as to
accord, in its substantive limb, a sphere of dominance to certain rights seen as fundamental to
democracy though not clearly instrumental to or somehow underlying the democratic process. Colin
Harvey comments:
When we live in a constitutional democracy we understand that this means the
majority will not always get its way. There are some things even a democratically
elected government should not be allowed to do. Argument will continue over the
interpretation and application of the “democratic conditions”, but I suspect that we
believe intuitively that the idea of such conditions is acceptable.68
This is an approach that does not always become clearly voiced by the ‘mutually reinforcing’ school
of thought, which, in its account of the interplay between the two, tends to focus on the instrumental
role of democracy and human rights in promoting each other.69 This appears to give rise to difficulty
in establishing when and how democracy entails not only a right not to be subjected to torture or
inhuman or degrading treatment or punishment, but also that this right is to trump the will or interest
of the majority, which, as analysed above, is seen by many as lying at the core of democracy. Thus,
discourse on the notion of the ‘constitutional democracy’ has referred to the ‘continuous
adjustments’ of the ‘potentially conflicting principles and institutions’ encapsulated in democratic
processes and institutions on the one hand and rights-based conceptions of the rule of law on the
other, ‘which are open to diverse interpretations and, thus, conflict’.70
Unfortunately, internalising rights such as Article 3 to democracy or ‘constitutional democracy’, as
many label it, does not resolve the ‘democratic paradox’71 or tell us how the delimitation occurs and
why the absolute right enshrined in Article 3 operates as it does within this broad conception of
democracy. If we can only rationalise rights trumping democratic processes by referring back to the
procedural underpinning of enabling individuals or groups to have a voice and input into decisionmaking and to how the safeguarding of absolute rights even against majority will promotes this, we
not only have trouble fitting Article 3 within this rationale, but we also resort to instrumentalism and
65
Such rights are viewed as fundamental to procedural models of democracy including representative and deliberative
democracy. See, for instance, Loughlin on the ‘rights to political participation’, n 4 above, 48.
66
The discussion below does not address the ‘vertical’ issues concerning the democratic legitimacy of international or
regional courts. For a broad critical examination of this topic, see Armin Von Bogdandy and Ingo Venzke, ‘In whose
name? An investigation of international courts’ public authority and its democratic justification’ (2012) 23(1) European
Journal of International Law 7. Regarding the ECtHR, see Kanstantsin Dzehtsiarou and Alan Greene, ‘Legitimacy and
the Future of the European Court of Human Rights: Critical Perspectives from Academia and Practitioners’ (2011)
12(10) German Law Journal 1707.
67
See n 64 above.
68
Colin Harvey, ‘Talking about Human Rights” (2004) EHRLR 500, 510.
69
See, for instance, Effeh, n 9 above, and Letsas, n 21 above.
70
Pinelli, n 15 above, 6. See also Chantal Mouffe, The Democratic Paradox (London: Verso, 2000).
71
Mouffe, n 70 above.
11
reach the instrumental paradox: democracy defeated for democracy to be sustained.72 Yet this does
not tell us anything about how the supposedly internal components of democracy are to be delimited.
An alternative approach to rationalising the above account amounts to accepting that the meaning of
democracy cannot be stretched so far as to be seen as encompassing counter-majoritarian absolute
rights that are not readily explicable as instrumental to its procedures. It therefore entails viewing the
relationship between democracy and human rights as more complex than the exhaustively
complementary relationship apparently argued by the ‘mutually reinforcing’ school or by certain
proponents of ‘constitutional democracy’. It would mean that democracy may in general be a good
thing, but from the perspective of certain absolute rights such as Article 3 ECHR, democracy may
‘do wrong’ – insofar as it may operate to infringe on an absolute right, the expression of the
democratic will, even in a robust procedurally democratic system, would be unlawful, and would be
‘trumped’ by that absolute right, as interpreted and applied by unelected judges.
This is an approach that perceives democracy and human rights as potentially engaged in open
conflict, and this conflict could be said to be particularly stark when human rights operate to protect
minority groups that fall out of the democratic process. It is an approach that perhaps reflects many
references to democracy in public law and human rights literature in which the ‘undemocratic’ nature
of human rights or human rights adjudication, the ‘counter-majoritarian difficulty’73 or the danger of
judicial supremacism, is pointed out by commentators.74 This approach, however, would not
necessarily espouse opinions that condemn the dominance of rights over the ‘democratic will’. It
arguably suggests that taking the position that democracy can do no wrong and that it is the ultimate
good – a position particularly common in commentary in support of the UK principle of
parliamentary sovereignty – is not sustainable from a legal or normative perspective, at least (for the
purposes of this paper) under the rubric of the ECHR.
Indeed, Christiano’s view to this effect is evident in his definition of democracy:
[T]he term “democracy”…refers very generally to a method of group decision making
characterized by a kind of equality among the participants at an essential stage of the
collective decision making. Four aspects of this definition should be noted. First,
democracy concerns collective decision making, by which I mean decisions that are
made for groups and that are binding on all the members of the group. Second, this
definition means to cover a lot of different kinds of groups that may be called
democratic. So there can be democracy in families, voluntary organizations, economic
firms, as well as states and transnational and global organizations. Third, the definition
is not intended to carry any normative weight to it. It is quite compatible with this
definition of democracy that it is not desirable to have democracy in some particular
context. So the definition of democracy does not settle any normative questions.
Fourth, the equality required by the definition of democracy may be more or less
deep...75
72
For further consideration of the ‘constitutional democracy’ paradox, see Abts and Rummens, n 6 above, 409-412.
Alexander Bickel, The least dangerous branch: the Supreme Court at the bar of politics (Bobbs-Merrill, Indianapolis,
1962), 17.
74
See, for instance, Richard Ekins, ‘Judicial Supremacy and the Rule of Law’ (2003) 119 Law Quarterly Review 127; for
the US perspective, see, among others, Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, 115 Yale L.J.
1346, 1394 (2006). Cf Annabelle Lever, ‘Is judicial review undemocratic?’ [2007] Public Law 280.
75
Christiano, n 8 above. The normative neutrality apparent here goes further than the point made by Huntington:
‘Democracy is one public virtue, not the only one’. Samuel P. Huntington, The Third Wave - Democratisation in the late
Twentieth Century (Oklahoma, 1991) See, further, the commentary by John Laws: ‘Democracy is a means and not an
73
12
This approach thus acknowledges the need to seek answers to normative questions concerning rights,
particularly absolute rights such as Article 3, outside the democracy umbrella. Resolving the conflict
on the normative level remains, of course, a very difficult exercise, but the conflict
acknowledgement approach arguably enables it to occur in a more transparent fashion. Moreover, on
the concrete level of considering how Article 3 ECHR – a right already enshrined and enforced in a
robust regional human rights treaty regime – operates in relation to democratic forces or goals, it can
serve to clarify that the democracy umbrella does not explicate its absolute nature.
Perhaps something more is needed. It could be argued that the conflict, be it an internal (first
approach) or an external one (second approach), requires resolution through a meta-principle.
According to a third, or follow-up approach, equality can serve the purpose of addressing the
conflict. The argument would be that, particularly in relation to unpopular or marginalised or
silenced minority groups, the operation of absolute rights serves to safeguard a minimum core of
human dignity that is fundamental to the equality of all human beings. Thus a right such as Article 3
ECHR could be portrayed as both intrinsic to and instrumental to democracy. This is an argument
that appears to underlie Ronald Dworkin’s position, which presents democracy as requiring ‘that
collective decisions be made by political institutions whose structure, composition, and practices
treat all members of the community, as individuals, with equal concern and respect’.76
Yet there are two problems with attempting to present this analysis as resolving the issue. One is the
argument that, when it comes to Article 3, this stretches equality too far. Article 3’s terms may
uphold the ideal that all people must be treated as ends, and not as means to an end, and to this extent
is underpinned by the ideal of equality. Yet condensing Article 3’s terms to equality does not capture
the rich and controversial discourse on the interpretation and application of its terms.77 Another,
perhaps more foundational, problem, is the following: even if it is accepted that an absolute right
such as Article 3 upholds equality, which is an ideal indelibly tied to democracy, the question then
becomes how precisely it is so tied. If it is so tied because respect for equality is the sine qua non for
attaining procedural democracy, then it is no meta-principle at all, and we are led to the
instrumentalism paradox again: democracy defeated for democracy to be upheld. If, on the other
hand, we consider equality to be indelibly tied to democracy because we believe democracy is there
to secure equality (as Dworkin indicates), then equality appears to be the supreme ideal, and the
different conceptions of democracy are simply to be assessed in relation to it, entailing the potential
for conflict and for the trumping force of rights (loosely) stemming from equality This takes us to the
second approach, but with equality as the guiding value. Subsumption of democracy and human
rights under equality may serve to explain the nature of their relationship – yet it does not provide
clear answers to the difficult questions of their precise delimitation or the resolution of their potential
or actual conflict.
The above analysis does not deny the mutually reinforcing operation of democracy and human rights
in many areas. Nonetheless, it highlights the need to be candid about what is taking place when a
right such as Article 3 of the ECHR trumps the wishes of institutions representing the will of the
end. It tends to promote pluralism and to disable would-be tyrants, because the sanction of the polling-booth provides a
corrective medicine…’. John Laws, ‘The Good Constitution’ (2012) 71(3) Cambridge Law Journal 567, 568.
76
Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Harvard University Press,
Cambridge, Massachusetts, 1996), 17. See also Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality
(Harvard University Press, Cambridge: Massachusetts, 2000).
77
For some of the intricacies surrounding Article 3’s terms, see Mavronicola, ‘What is an “absolute right”?’, n 35 above,
and Mavronicola, ‘Güler and Öngel v Turkey’, n 43 above.
13
people, and brings to the surface questions regarding the relationship between democracy and human
rights, particularly as they transpire in relation to an absolute right such as Article 3.
The ECtHR does not fully confront the issues outlined above. It has indicated in Şahin that, under the
ECHR, ‘democracy does not simply mean that the views of a majority must always prevail: a balance
must be achieved which ensures the fair and proper treatment of people from minorities…’.78 It has
further suggested that it is a ‘constant search for a balance between the fundamental rights of each
individual which constitutes the foundation of a “democratic society”’.79 Further, the Grand Chamber
of the ECtHR has stated, in Hirst v UK (No 2), in the context of prisoners’ right to vote, that ‘[t]here
are numerous ways of organising and running electoral systems and a wealth of differences, inter alia,
in historical development, cultural diversity and political thought within Europe which it is for each
Contracting State to mould into its own democratic vision’.80
The balancing discourse in Şahin and the Court’s analysis in Hirst indicate a fluid approach to the
notion of democracy or a ‘democratic society’. Thus, though it recognises that democracy does not
amount purely to majority rule, the ECtHR frequently resolves this fluidity by emphasising its
‘supervisory’ role and deferring to Contracting States’ (democratic, or imperfectly democratic, or
public-interest-minded) institutions.81 Yet such fluidity is not present in the operation of Article 3,
where neither the margin of appreciation nor the proportionality test available in relation to qualified
rights are applicable. The imperative of explicating the relationship between Article 3 ECHR and the
ECtHR’s conception of a ‘democratic society’ remains.
Indeed, the ECtHR must further flesh out the conception of democracy it espouses to a degree
appropriate to the requirements of interpreting and applying the Convention in relation to absolute
rights such as Article 3 ECHR, but also in relation to qualified and derogable rights.82 Such an
endeavour will serve to clarify the contours of the relationship between democracy and the rights
enshrined in the ECHR, a clarification which is not only theoretically and politically significant, but
also doctrinally essential.
CONCLUSION
The above analysis considers Article 3 ECHR and the protection it confers to individuals against
majority wishes or conceptions of the general interest against the backdrop of the democracy-rights
debate. The aim of the discussion is to reiterate or reinstate the call for (re)considering the precise
contours of the relationship between democracy and human rights. The analysis raises questions of
primacy and conditionality – what trumps what? what is a sine qua non of what? – that arguably
resonate beyond the ECHR, and which need to be confronted. Within the ECHR, I suggest that it is
time to acknowledge that, precisely due to the contention and uncertainty surrounding its
interpretation, democracy should be interpreted as an ‘autonomous concept’ by the ECtHR. Insofar as
democracy is already being interpreted autonomously by the ECtHR, a more transparent account is
needed of precisely how democracy is delimited in light of the rights protected under the ECHR, not
least rights considered to be absolute, such as Article 3 ECHR. This is a significant imperative at a
78
Şahin v Turkey (2007) 44 EHRR 5, para 108.
Ibid.
80
Hirst v UK (No 2) (2006) 42 EHRR 41, para 61.
81
See, for instance, Chapman v UK (2001) 33 EHRR 18, para 94: ‘the complexity and sensitivity of the issues involved
in policies balancing the interests of the general population [and the interests of a minority]…renders the Court's role a
strictly supervisory one’.
82
See O’Connell, n 62 above. See also Steven Wheatley, ‘Minorities under the ECHR and the construction of a
“democratic society”’ [2007] Public Law 770.
79
14
time when discussion of democracy and human rights is prominent from coffee shops and classrooms
to courtrooms, international bodies, and legislatures throughout the world.
15