Does the European Court on Human Rights still have the confidence of the public? A former judge expresses his doubt.

By J.C. von Krempach, J.D. | December 22, 2009

Javier Borrego Borrego, former Spanisj judge at the ECHR

In an op-ed recently published by the Spanish daily El Mundo, Javier Borrego Borrego, a former judge of the European Court of Human Rights, expresses his grave concern over recent developments in that court’s jurisprudence.

The contribution is precipitated by the ECHR’s recent (and clamorous) Decision in the case of Lautsi vs. Italy, where the Second Chamber of the Court had, upon application by an immigrant living in Italy, held that the display of the crucifix in the State school attended by the applicant’s daughter was contrary to the applicant’s right to ensure her child’s education and teaching in conformity with her religious and philosophical convictions, within the meaning of Article 2 of Protocol No. 1, as well as her freedom of conviction and religion, as protected by Article 9 of the Conventiion.

Judge Borrego describes this judgment of the ECHR as a “stilted decision that has much to do with pre-established opinions (not to speak of ideology) and very little with a judgment adopted by judges applying the Convention and its Protocols to a concrete case”.

But Borrego’s criticism reaches far beyond the single case of Lautsi vs. Italy. He observes that “since the beginning of this century, the Strasburg Court is producing – first in isolated cases, but in the last years with certain regularity – what must be described not as judgments, but as a strange kind of academic lectures that evidence a preoccupying reality”: with increasing frequency, the persons appointed to serve as judges in the ECHR (as well as in the supreme judiciary institutions of many European States) have the professional background of  law professors rather than of judges.

Borrego comments that professors usually are, with some notable exceptions, very bad judges: “To apply the Law to an individual case usually is not something they like to do. They believe that, once they have been appointed judges, their mission is to transpose their prior academic opinions into judgments, thus converting the law court into a legislative organ.”

Borrego claims that this is not a personal view of his own, but that certain legal academics publicly admit following such inclinations. As an example, he quotes a public manifesto issued by 40 Spanish Law Professors, who, protesting against the fact that a judge of the (Spanish) Constitutional Court was banned from hearing a case on which he had previously published a legal opinion at the request of one of the parties involved, affirmed that the Court should not consist of “unknown persons who, prior to their appointment as judges, have never expressed any opinion”. One must conclude from such statements that the authors do not view impartiality as the primary virtue of a judge. Quite on the contrary: the manifesto quoted by Borrego affirms that “the opinions of a professor should be reflected not only in his academic writing, but also in the jurisprudence of the law courts”.

As Borrego is able to show, the ECHR’s Decision in the case of Lautsi vs. Italy is but one example, albeit a telling one, for a judgment made by law professors. Of the seven judges who adopted the Decision, five are law professors and only two had, prior to their appointment, served as judges in their country of origin. Of these two, the Italian Judge Vladimiro Zagrebelsky has a brother, Gustavo, who is a law professor (and judge at the Italian Constitutional Court) widely reputed for his highly ideological opinions which, as one is not surprised to learn, coincide with those underlying the Lautsi Decision of the ECHR.

Borrego then demonstrates how the professor-judges of the Second Chamber transform their pre-established opinions, or ideology, into a ‘judgment’ that completely fails to take into account the circumstances of the concrete case, but makes blunt and generalizing statements, which, for an international tribunal, seem highly inappropriate: the clear intention of the judges apparently was not to apply the Convention to which all signatory States (including Italy) had agreed to an individual case, but to make a new law that would become applicable across the continent.

In closing his article, judge Borrego quotes the ECHR’s repeated statement that “the work of the law courts … requires the confidence of the public”. He adds that: “this confidence will be destroyed when a law court, failing to apply the law to the concrete case and confounding the purpose of a judgment with that of an academic lecture, ceases to render justice. This can happen in whatever law court, including the ECHR. And it is sad to see it happen.”

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