Excessive Formalism: The Sequel

Following yesterday's post on (excessive) formalism in the Van der Heijden case, there's another case from April that suffers from the same curiosity. In Boulois v. Luxembourg, the applicant was slapped down in his attempt to get the Court to recognise his right of access to court on the grounds that the right he was trying to assert was not a "right", but a "privilege". Unlike yesterday's art. 8 case, however, this one was based on art. 6, making the whole approach much more iffy.

In my April column on Good Intentions, which I mentioned yesterday as well, I had no difficulty explaining what was going on here without expending too many words. The Court made up the right of access to court out of whole cloth, and apparently the Grand Chamber thought it was time to cut it back to size a little.

After all, look at the text of art. 6 ECHR:

Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Note that in no way does the literal text of the Convention guarantee that if you want to sue someone, you will be able to do so. That part, the court more or less made up. Now obviously, I agree that this is an entirely reasonable way to read the article, but it does mean that the scope of said right is not as clearly defined as it could have been, hence this "rights" vs. "privileges" SNAFU. As yesterday, the question is whether such pragmatism in the use of formalism is a justifiable.

It should be clear that art. 6 is much more precise and detailed than art. 8, meaning that there is much less need for the Court to take politics into account so as to avoid excessive enthusiasm. Even the right to have access to a court in the first place is fairly well defined. In such circumstances, the Court should play its normal judicial role. That means first and foremost that it should only rarely deviate from existing case law. New exceptions and loopholes should not be invented unless there is a very strong reason for doing so. The law should be predictable for all those that are subject to it. No surprises, please.

And this is exactly why the Boulois judgement is flawed. The problem isn't, as the author on Strasbourg Observers put it, that it is "tainted by legal formalism and fails to do justice to the importance of social reintegration prospects for prisoners". Formalism isn't bad per sé, on the contrary, it's what makes judges different from politicians. And as for the importance of social reintegration prospects for prisoners, please, cry me a river. Why don't we let the legislature take point on that one. So no, it's none of that. (The author also suggests that the Court was inconsistent on the facts, which would be problematic to the extent that it is true, but Zzzzzzzz.)

No, the problem is that this judgement is too much of a surprise. The Grand Chamber of the European Court of Human Rights should not be in the surprises business, especially when it comes to an area of the law that it has been developing for almost 40 years. It should be promoting a slow, steady, gradual development of the law. Instead, we have a case where there is no suggestion that the Chamber applied the law correctly; the Grand Chamber simply decided to go another way. That is not what judges should be doing, that is the method of politicians.