Looking at itself: the character of the European Court of Human Rights in its judgments
By Yuliia Khyzhniak
René Magritte, La réproduction interdite, 1937
The judgments of the European Court of Human Rights (ECtHR/Court) represent the most conspicuous form of its communication with external audiences. These judgments convey both legal messages as well as the way the Court sees itself as an institution. The latter is what this post will briefly scrutinise through a narrative analysis of ECtHR case-law.
The way the ECtHR talks about its figure gives us, as readers, a certain impression, which is sometimes hard to put into words — in the sense that we may ‘hear’ a court’s voice differently when reading the judgments of the ECtHR and the judgments of other courts without necessarily realising why. However, if we look closer at some statements of the ECtHR where it characterises itself, we can grasp why the Court’s voice feels so distinct. Obviously, the ECtHR does not speak about itself directly, it does so while conducting its standard legal analysis. For instance, the Court wouldn’t hesitate to include in its main reasoning phrases such as: ‘[t]he Court can also imagine that a party may have a feeling of inequality…’ (Kress v. France, para 81). Such openness may not necessarily be encountered in the judgments of other courts, be they domestic or international. Not every court dares to acknowledge explicitly that it can imagine feelings experienced by people. And it definitely cannot imagine them in reality since the Court does not physically exist as a person with a mind and a heart. But what if we look at the Court in its judgments as the character which lives in the text? I suggest using narrative theory as a tool to describe the Court’s textual figure. This gives an insight into how the ECtHR constructs itself before the eyes of its audience.
Perhaps some would object to the idea that the Court can be seen as a character living in the text, arguing that it is not a fictional construction. Indeed, beyond the texts of judgments, there are real judges who embody the Court in actuality. However, I propose looking at the judgments in the way we look at literary non-fiction, such as memoirs. Such a comparison illustrates the complexity of the relationship between the writer (judges, law clerks) and the narrator/character (the ‘Court’) in the judgments.
As in the memoir, where the narrator/character (the ‘I’) is strongly connected to the writer, in judgments, the narrator/character (the ‘Court’) is strongly connected to the judges who write the concrete judgment as well as to the Court as an institution. However, despite this undeniable interconnection, the ‘I’ in memoirs and the ‘Court’ in judgments do not completely match the actual writer. At the same time, the reasons for such a mismatch are different for memoirs and judgments. As for the memoir, this mismatch can be explained by the fallibility of memory and hence by the personal unreliability of the writer or a deficiency in interpretation (R. Freeman & K. Le Rossignol). To write a good memoir, the writer should be able to create a separate textual persona in order to filtrate real lived experience. In the case of judgments, this mismatch can be explained by other considerations. First, the real collective of judges is not tantamount to the holistic figure who tells the story and who belongs to the text. And second, the voice in the text also embodies the entire Court as an institution which does not actually exist as a single person with a separate voice. In this sense, the narrator/character of the Court in ECtHR judgments is a fictional persona crafted by the judges and who is not any of them individually as such but nevertheless reflects to some extent each of them. This narrator/character of the Court therefore embodies the idea of the unity of the judges who constitute the Court.
We can detect the character of the Court by looking at judgments where the texts have particular narrative features. To begin with, the ECtHR often gives quite personal descriptions of its interpretive actions. We are used to expressions such as ‘the Court notes’, ‘the Court held’ or ‘the Court observes’, all of which are typical. With this in mind, it is striking to encounter in a judgment the following more sophisticated descriptions: ‘the Court cannot turn a blind eye to the fact that…’ (Beizaras and Levickas v. Lithuania, para 152); or ‘[t]he Court has serious doubts as to…’ (İzzettin Doğan and Others v. Turkey, para 127); or ‘[t]he Court is fully conscious of the difficulties that member States may face…’ (R.R. and Others v. Hungary, para 88). Obviously, there is no strict necessity for being so diverse in describing one’s mental states; after all, it is common for many courts to use the passive voice altogether. But it seems that such diversity is an important tool for the ECtHR in serving to emphasise certain points. More personal language constructions appear in places in the judgment that carry a higher tension and are focal points for the whole text. Thus, such personal statements help to reveal shades of the Court’s attitudes which would otherwise remain invisible by using formal verbs like ‘holds’, ‘notes’ or ‘observes’.
What is even more remarkable is that the ECtHR ascribes emotional intelligence to itself, for instance, as in these passages: ‘[t]he Court has no doubt that this caused the first applicant deep anxiety’ (Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, para 70); ‘the Court acknowledges the emotional hardship that the said decision must have caused the applicants’ (V.D. and Others v. Russia, para 119); ‘[t]he Court cannot but be sympathetic to the applicant’s apprehension that …’ (Pretty v. the United Kingdom, para 55). This manner of self-expression opens a door to the Court’s inner world. In literature, access to a character’s inner world is a way to make her closer to the reader, to provoke the reader to put herself in the character’s shoes. Likewise, in the Court’s case, such access conveys a salient message — ‘I (the Court) am the same as you,’ which suggests that the Court is like a human being; and this message is twofold.
In the first place, this message means the following: ‘As a human being, I (the Court) am capable of understanding you, of being compassionate and appreciative.’ Therefore, personal passages about emotions turn the Court into a more fully-fledged actor in the human rights discourse. This makes the ECtHR as a figure more relevant, more natural in this particular setting where the suffering of the concrete person should be heard and recognised irrespective of the outcome of the case.
And then again, it also means: ‘Because I (the Court) am like a human being, I deserve empathy as well.’ Thereby, the phrases about the Court’s emotional states give us an opportunity to imagine what it is like to decide such cases, to feel for the applicant, to weigh all the circumstances, and to take someone’s side in the end. The revelation of the emotional attitude of the Court exposes readers to the complexity of some human rights cases as well as the complexity of the Court’s role.
By employing more personal constructions in its judgments, the ECtHR creates a relatable character of itself which can be easily understood by the reader. This character is more humane and fragile than we normally expect from the figure of a judicial or, indeed, any other institution. With the help of constructing such a character, the ECtHR inscribes itself more successfully into the discourse of human rights, expressing at the level of text not only its legal position, but also its attitude which is equally essential for a human rights actor.
Yuliia Khyzhniak is a third year PhD student at the University of Groningen (The Netherlands). She is currently working on a PhD project: The European Court of Human Rights and the Shadow of the Past: A Literary Approach to the Court’s Jurisprudence. This PhD research is dedicated to a narrative analysis of departures from previous interpretations of the Convention in the ECtHR judgments.