Human Rights Law Review 9:1 ß The Author [2009]. Published by Oxford University Press.

All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

doi:10.1093/hrlr/ngn033 Advance Access publication 20 January 2009
.......................................................................

Separate opinions in the

European Court of Human
Rights
Robin C.A.White* and Iris Boussiakou**

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

Abstract

Separate opinions, both concurring and dissenting, have been a feature

of judgments of the European Court of Human Rights since its
earliest days, but detailed studies of their incidence and impact have
until recently been sparse. This article, based on an AHRC-funded
research study, offers a survey of the research literature and describes
the outcome of its own consideration of such opinions. The use of
separate opinions in the European Court of Human Rights is significant,
but the incidence of sole dissents by national judges is very low.
It would appear that the main determining factor in the writing of
a separate opinion is judicial temperament. There is some evidence
that the background of judges prior to their election to the Court
has some influence on their approach to writing separate opinions. The
Court, however, demonstrates high levels of collegiality and the use of
separate opinions contributes to the transparency of its decision-
making.

1. Context
The European Court of Human Rights (the Strasbourg Court or Court) sits at
something of a crossroads. It is widely recognised as having features of a
constitutional court. The Strasbourg Court’s judgments recognise that the
Court now exercises constitutional functions for the Member States of
the Council of Europe. In the Loizidou Case, the Court famously described the

*Professor of Law, The University of Leicester (robin.white@leicester.ac.uk).

**Sometime Research Associate, The University of Leicester.

...........................................................................
Human Rights Law Review 9:1(2009), 37^60
38 HRLR 9 (2009), 37^60

Convention as ‘a constitutional instrument of European public order’.1 Perhaps

significantly, that formula has been repeated only once or twice in subsequent
cases; and seemingly only once in a judgment of the Court.2 The former
President of the Strasbourg Court is on record as describing it: ‘pretty much
as a European constitutional court’.3 Elsewhere, he says:
‘Whether the European Court of Human Rights is itself a ‘‘Constitutional
Court’’ is largely a question of semantics. We can always call it a
quasi-Constitutional Court, sui generis.’4
Yet currently the Strasbourg Court does not select the cases upon which it
adjudicates, as constitutional courts commonly do. Once a case is declared
admissible,5 there will be a determination by a Chamber or Grand Chamber of

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

the Court on the merits. It is the authors’ thesis that the form of judgments is
related to the function of a court; there is therefore likely to be a relationship
between a propensity to write separate opinions in the Strasbourg Court and
the perception by judges of its role.
Article 45 of the European Convention on Human Rights provides that rea-
sons must be given for judgments, and in the second paragraph goes on to say:
If a judgment does not represent, in whole or in part, the unanimous
opinion of the judges, any judge shall be entitled to deliver a separate
opinion.6

1 Loizidou v Turkey (Preliminary Objections) A 310 (1995); 20 EHRR 99 at para. 75.

2 Bosphorus Airways v Ireland 2005-IV; 42 EHRR 1 at para. 156. See also the concurring opinion
of Judge Jambrek in Fischer v Austria A 312 (1995); 20 EHRR 349; and the partly dissenting
opinion of Judge Martens, joined by Judge Foighel in Ahmet Sadik v Greece 1996-V; 24 EHRR
323.
3 Bruinsma and Parmentier, ‘Interview with Mr Luzius Wildhaber, President of the ECHR’,
(2003) 21 Netherlands Quarterly of Human Rights 185 at 185.
4 Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’, (2002) 23
Human Rights Law Journal 161 at 161. See also Wildhaber, ‘Address to Conference on the posi-
tion of constitutional courts following integration into the European Union’, 30 September
2004, where he describes the Strasbourg Court as having ‘many things in common with the
Constitutional Courts of the European continent’. See also Alkema, ‘The European
Convention as a constitution and its Court as a constitutional court’, in Mahoney et al. (eds),
Protecting Human Rights: The European Perspective. Studies in Memory of Rolv Ryssdal
(Cologne/Berlin/Bonn/Munich: Carl Heymans Verlag, 2000) at 41; Schermers, ‘A European
Supreme Court’, in Mahoney et al. (eds), Protecting Human Rights: The European Perspective.
Studies in Memory of Rolv Ryssdal (Ko«ln: Heymanns 2000) at 1271; and Greer, The European
Convention on Human Rights. Achievements, Problems and Prospects (Cambridge: Cambridge
University Press, 2006) especially at 167^92.
5 And overall something like 96^98 per cent of applications fail at the admissibility hurdle.
In 2007, the Court disposed of 27,057 applications by a decision on admissibility, and 1,735
by judgment on the merits, of which 17 were by judgment of the Grand Chamber. Of the judg-
ments, 32 were friendly settlements. In addition 13,413 applications were disposed of adminis-
tratively: Council of Europe, Annual Report 2007 of the European Court of Human Rights
(Strasbourg: Council of Europe, 2008) at 134 and 137.
6 The use of the term ‘separate opinions’ in this article refers to both concurring and dissenting
opinions.
 Separate opinions in the ECHR 39

Rule 74(2) of the Rules of Court provides:

Any judge who has taken part in the consideration of the case shall
be entitled to annex to the judgment either a separate opinion,
concurring with or dissenting from that judgment, or a bare statement
of dissent.
The purpose of giving reasoned judgments may seem obvious in a modern age,
and we now take for granted the offering of an explanation for the result
which has been reached.7 The system set in place by the European
Convention on Human Rights for judicial decision-making adopted8 a variant
of the common law tradition of permitting multiple opinions in contrast to
the civil law tradition of delivering a single reasoned opinion, and permitting

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

no separate opinions, the latter being the system that is more often, though
not universally, met in constitutional courts.9 It is, however, important to
recognise that there is a judgment of the Court10 to which are annexed sepa-
rate and dissenting and concurring opinions.11 Although the ability to annex
a separate opinion is expressed in the Convention as permissive,12 the tradition
of the Strasbourg Court is very much that those dissenting will file an opinion
setting out the reasons for their dissent. Equally, many judges clearly take the
view that differences in reasoning which lead to the same conclusion as that
of the Court in its judgment should also be articulated.
The capacity of the Strasbourg Court to cope with the volume of applica-
tions it receives has increasingly been called into question. Protocol No 14
was adopted in order to provide some breathing space by making more
efficient use of the judicial resources of the Court. But entry into force of that
Protocol has been stalled by the persistent failure of the Russian Federation to
ratify it. That situation does not look to have an early resolution.13
The Protocol included the controversial addition to the admissibility
criteria, which could be viewed as the beginnings of a move towards selection
of cases for determination on the merits other than by reason solely of

7 See generally, Schauer, ‘Giving Reasons’ (1994^5) 47 Stanford Law Review 633.
8 Adopting the same approach as that in the International Court of Justice.
9 Contrast, for example, the practice of the European Court of Human Rights with that of the
Court of Justice of the European Communities, which delivers a single judgment of the Court.
10 What would be described in the domestic courts of the United Kingdom as a composite
judgment.
11 For more detailed comment on the form of judgments in the Strasbourg Court, see White,
‘Judgments in the Strasbourg Court: Some Reflections’, in Andenas and Vogenhauer (eds),
A Matter of Style? The Form of Judgments in the United Kingdom and Abroad. Essays in Honour
of Lord Bingham of Cornhill (Oxford: Hart Publishing, forthcoming).
12 Article 45(2) ECHR provides that ‘any judge shall be entitled to deliver a separate opinion.’
13 Caflisch, ‘The reform of the European Court of Human Rights: Protocol No 14 and beyond’,
(2006) 6 Human Rights Law Review 403.
40 HRLR 9 (2009), 37^60

matters relating to admissibility. Article 12 of the Protocol amends Article 35(3)

ECHR to read:
The Court shall declare inadmissible any individual application
submitted under Article 34 if it considers that:
...
b the applicant has not suffered a significant disadvantage, unless
respect for human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not
been duly considered by a domestic tribunal.
Article 20 of the Protocol provides:

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

In the two years following the entry into force of this Protocol, the new
admissibility criterion may only be applied by Chambers and the Grand
Chamber of the Court.14

Because the Court sits in Chambers of seven or Grand Chambers of seven-

teen to consider the merits of cases and, where violations of the Convention
are found, issues relating to just satisfaction, considerable judicial resources
are devoted to judgments in such cases. Does the ability to annex a dissenting
or concurring opinion to the judgment of the Court assist or detract from the
efficiency of judicial decision-making, and what contribution does it make to
the case law of the Strasbourg Court when it is only the judgment of the
Court which carries authority?15 Is the only way forward for the Strasbourg
Court to move to a system under which it selects the cases whose merits it
considers, thus applying judicial resources more efficiently to major questions
of the development of Convention rights? It is in this context that a research
project into separate opinions in the Strasbourg Court was undertaken.

2. The Research Project

This article summarises some of the findings from a two year Arts and
Humanities Research Council funded research project exploring separate opin-
ions over the six calendar years 1999^2004.16 The years chosen represent

14 And not by single judges or committees determining such matters. The explanatory memor-
andum to the Protocol says, ‘This rule recognises the need to develop case-law on the inter-
pretation of the new criterion before the latter can be applied by single-judge formations or
committees.’
15 Article 46(1) ECHR provides: ‘The High Contracting Parties undertake to abide by the final
judgment of the Court in any case to which they are parties.’ On the system of precedent in
the Strasbourg Court, see Wildhaber, ‘Precedent in the European Court of Human Rights’, in
Mahoney et al., supra n. 4 at 1529.
16 Referred to in this article as the ‘Leicester Study’.
 Separate opinions in the ECHR 41

the first six full calendar years of the operation of the permanent Court estab-
lished under Protocol 11.17 The research project has involved the construction
of a database of all judgments of the Strasbourg Court for the six-year period
in which key information about the case and about the frequency and type of
separate opinion has been stored. Additionally, information about the composi-
tion of the Court, the issues raised in the case, and the outcome has also been
stored.18 Just under 4,000 judgments have been entered into the database.
Following the construction of the database, some quantitative analysis took
place followed by some qualitative analysis of the outcomes, as well as struc-
tured interviews with judges at the Strasbourg Court. The intention was to
examine patterns of the use of dissents and concurring opinions, and their
contribution to the development of the case law of the Strasbourg Court. The

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

Leicester Study, however, is not the first study of the use of concurring and dis-
senting opinions, and, therefore, we also conducted a literature review of
other work touching on the issues we were investigating. Much of the discus-
sion of the propensity to write concurring or dissenting opinions has been
linked to judicial activism and judicial restraint. What do these terms signify
in the context of decision-making in the Strasbourg Court?

A. Judicial Activism and Judicial Restraint

This issue of judicial activism in the Strasbourg Court is closely linked to
the repeated recognition by the Strasbourg Court that the Convention is a
living instrument which must be interpreted in the light of present day
conditions and not simply limited to what was in the minds of the drafters of
the Convention.
In the Tyrer Case,19 the Court said ‘[t]he Court must also recall that the
Convention is a living instrument which, as the Commission rightly stressed,
must be interpreted in the light of present-day conditions.’20 A HUDOC21
search reveals that the phrase ‘the Convention is a living instrument’ has
been used in 28 cases.22 The requirement that the Convention is interpreted

17 It had been hoped to include the calendar year 2005, but the volume of cases and the high
incidence of non-unanimous judgments precluded this.
18 The construction of the database proved to be a bigger task than anticipated because of the
many variables which we wished to include in order to be able to interrogate the database
with a view to extracting information about judicial behaviour in the Strasbourg Court. The
database of all judgments (including friendly settlements and strikings out) was constructed
by Dr Iris Boussiakou, as research associate on the project. The database can be found at:
https://lra.le.ac.uk/handle/2381/1405 [last accessed 13 November 2008].
19 Tyrer v United Kingdom A 26 (1978); 2 EHRR 1.
20 Ibid. at para. 31.
21 See: http://echr.coe.int/echr/en/hudoc [last accessed 13 November 2008].
22 Most recently in EB v France 47 EHRR 21 at para. 92, and Saadi v United Kingdom 47 EHRR 17
at para. 55 where the Court said: ‘[The Convention] . . . had to be interpreted in a manner
which ensured that rights were given a broad construction and that limitations were
42 HRLR 9 (2009), 37^60

as a living instrument means that it has to be given something of an activist

interpretation. The Convention could not be a living instrument if its interpre-
tation remained static; the content of the Convention rights will change
over time. Most, but not all, commentators consider that this change must
always operate to enhance the content of human rights.23
Judicial activism is a label used to refer to a judicial approach which seeks to
extend or modify existing law especially in cases where policy choices are
before the Court, while judicial restraint is a label used to refer to a judicial
approach which focuses upon the judge applying existing case law and
avoiding developing the law beyond its clearly established parameters. It is
sometimes suggested that judicial activism takes the judge into the realm
of the policy-maker, while judicial restraint recognises the separation of

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

law-maker and law-applier. Mahoney comments:
Judicial activism raises the spectre of judges illegitimately enlarging their
role in society to one of legislating on general policy matters and
of exceeding their given functions of interpretation, whereas judicial
self-restraint carries the risk of judges abdicating their responsibility of
independent review of governmental action.24
Mahoney argues:
The conclusion of the present study is that, as far as the European
Convention on Human Rights is concerned, the dilemma of activism
versus restraint is more apparent than real, in that activism and restraint
are complementary components of the methodology of judicial review
inherent in the very nature of the Convention as an international treaty
intended to secure effective protection of human rights and fundamental
freedoms.25
The role of the Strasbourg Court is to interpret and apply the Convention.26
The open texture of many of the provisions of the Convention has required
choices to be made by the Court in adding substance to the text of the
Convention. In some cases, the position of the Court changes over time, reflect-
ing the nature of the Convention text as a living instrument to be interpreted

narrowly construed, in a manner which gave practical and effective protection to human
rights, and as a living instrument, in light of present day conditions and in accordance with
developments in international law so as to reflect the increasingly high standard being
required in the area of the protection of human rights.’ A HUDOC search reveals that the
phrase ‘a living instrument’ has been used in 47 cases.
23 See discussion in Mahoney, ‘Judicial Activism and Judicial Self-Restraint in the European
Court of Human Rights: Two Sides of the Same Coin’, (1990) 11 Human Rights Law Journal
57, at 66^8.
24 Ibid. at 58.
25 Ibid. at 59.
26 Article 32(1) ECHR.
 Separate opinions in the ECHR 43

in its present day context rather than being stuck in the early 1950s.27 Clearly
such a context is likely to generate differences of opinion among the
Strasbourg Court’s judiciary.
The nature of the Convention as a living instrument is closely linked to the
doctrine of the margin of appreciation, according to which the Strasbourg
Court defers to the assessment of circumstances and of permissible limitations
to Convention rights by the Member States in determining whether there has
been a violation of the Convention.28 This too is a common source of disagree-
ment among judges at the Strasbourg Court. One leading study of the margin
of appreciation concludes:
The margin of appreciation must be understood as an essential constitu-

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

tional device designed to preserve the fundamental prerequisite and
virtue of a liberal democratic society: value pluralism. The doctrine’s
only defensible rationale during and after the process of integration is to
enable the Strasbourg Court to provide endorsement of the maintenance
of cultural diversity, ensuring to the citizens of Europe the means to
articulate and practice their preferred values within a multi-cultural
democracy.29
But the margin of appreciation doctrine cannot be an excuse for abdication of
responsibility in deciding difficult cases on the interpretation and application
of the Convention. Happily the case law of the Strasbourg Court over the
years shows more examples of courageous extension of human rights than
capitulation to national preferences.
It is the articulation of the reasoning of the Strasbourg Court in the clearly
identified judgment of the Court, coupled with annexed dissenting and concur-
ring opinions which enables the reasoning of individual judges to be identified.
The Strasbourg Court would therefore appear to fall into what Lasser describes
as the publicly argumentative model.30 The Court’s judgments identify the judi-
ciary deciding the case, and contain factual, procedural and interpretative
explanations, including summaries of, and responses to, the arguments of the
parties and any interveners. The explanations provided show the parties how

27 The most commonly given example is the development of the case law on the gender identity
of transsexuals, which culminated in the judgments of the Grand Chamber in Goodwin v
United Kingdom 2002-VI; 35 EHRR 447; and I v United Kingdom 2002-VI; 36 EHRR 967.
28 See generally Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human
Rights Jurisprudence (Dordrecht: Martinus NIjhoff, 1996); Arai-Takahashi, The Margin of
Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR
(Antwerp: Intersentia, 2002); McHarg, ‘Reconciling Human Rights and the Public Interest:
Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court
of Human Rights’, (1999) 62 Modern Law Review 671; and Letsas, ‘Two Concepts of the
Margin of Appreciation’, (2006) 26 Oxford Journal of Legal Studies 705.
29 Arai-Takahashi, ibid. at 249.
30 Lasser, Judicial Deliberations. A Comparative Analysis of Judicial Transparency and Legitimacy
(Oxford: Oxford University Press, 2004).
44 HRLR 9 (2009), 37^60

the law has been applied to the facts to produce the result in the case. This
transparency of reasoning is further enhanced by the ability of judges either
to add riders in support of the judgment of the Court, or to dissent from the
conclusions of the majority in whole or in part. The system places a high pre-
mium on personal and institutional independence of the judiciary, coupled
with transparency since it will always be possible to determine the view of
any particular judge in the case. Lasser says of judgments of this type:
The legitimacy of a given judicial decision thus stands and falls in large
measure on the logic and argumentation of the signed judgment, not
the structural legitimacy of the entire judicial apparatus from which
it hails.31

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

3. Prior Research
We are not the first to consider or comment upon the phenomenon of separate
opinions in the Strasbourg Court. There has also been extra-judicial comment
on the function, purpose and use of separate opinions.
On an analysis of all Court judgments from 1991 to 1995, Bruinsma and de
Blois32 found that there was no correlation between outcome of a case and
the likelihood of separate opinions.33 The frequency was around 60 percent
regardless of whether a violation was found. Their sample presented 67 judg-
ments in which no violation was found, as against 126 judgments in which a
violation was found. Bruinsma and de Blois conclude that at one level, the
impact of national backgrounds is not great, though they argue that they
have found some ‘striking examples of national bias in separate opinions’.34
The authors then identify undercurrents in the judicial approach to interpreta-
tion and application of the Convention, which they argue indicate a conserva-
tive or judicial restraint approach to the Convention as against a liberal or
judicial activist approach to the Convention.
This is a theme picked up in an interview with Judge Wildhaber as President
of the Strasbourg Court.35 Judge Wildhaber agrees with the proposition that a
common distinction in the interpretation of constitutions is between judicial
restraint and judicial activism, and that this distinction can be applied to the

31 Ibid. at 338.
32 Bruinsma and de Blois,‘Rules of Law from Westport to Wladiwostok. Separate Opinions in the
European Court of Human Rights’ (1997) 15 Netherlands Quarterly of Human Rights 175.
33 These authors characterise a unanimous decision as one without any separate opinions
whether concurring or dissenting, whereas our analysis draws a distinction between cases
in which there are concurring opinions and those in which there are dissenting opinions.
Where there are only concurring opinions, it is legitimate to view the outcome as unanimous.
34 Bruinsma and de Blois, supra n. 32 at 175.
35 Bruinsma and Parmentier, supra n. 3.
 Separate opinions in the ECHR 45

Strasbourg Court. But he qualifies this response by noting that the Court
operates largely through its Chambers:
One of the judges may move ahead and when the composition of the
Chamber is favourable, the majority may do something very activist.
If you then follow precedent, you are bound to follow the outcome of
judicial activism. As a result, you can be on the side of judicial self-
restraint and at the same time you want to change precedent. Because
of the complexities of our Court it is not a simple continuum. Are you to
the same extent a judicial activist when it concerns your own country?
You know your own system, you know it works and you think it hasn’t
led to many abuses. Even as a very objective observer you may be more
lenient towards your own country.36

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

In a separate response the judge indicates that he is more on the side of self
restraint in relation to the interpretation of Articles 5 and 6, is more on the
side of judicial activism in relation to Article 8, and in the middle in relation
to Article 10 of the Convention.37
One of the first detailed studies of separate opinions is that of Rivie're.38
This work is one of the few to consider the impact of the different types of sepa-
rate opinion: dissenting opinions; partly dissenting opinions; concurring opi-
nions; and partly concurring and partly dissenting opinions; and
combinations of judges working together to produce such separate opinions.
Rivie're examines both the nature and function of such opinions. The study is
broadly favourable in its conclusions on the use of separate opinions, and
views the common law approach of permitting concurring and dissenting opin-
ions as evocative of the continental European procedure of opinions of advo-
cates general and similar judicial offices, as well as the contribution of legal
doctrine. The qualitative part of the study39 argues that separate opinions
serve to aid in interpretation, clarify the law, comment on it and review it.
The main value of Rivie're’s work is its analysis of different types of separate
opinions. She identifies a number of bifurcations: between opinions addressing
the foundations of the reasoning of the judgment of the Court and those
addressing criticisms of consistency in the Court’s case law; between opinions
concerned with admissibility issues and fact-finding and opinions concerned
with substantive rights; and between those motivated by different approaches
to the interpretation of the Convention, broadly a close textual approach
versus a broader purposive interpretation.

36 Ibid. at 187.
37 Ibid.
38 Rivie're, Les opinions se¤ pare¤ es des juges a' la cour europe¤ enne des droits de l’homme (Brussels:
Bruylant, 2004). This work also contains useful reference to the wider literature in French
on separate opinions.
39 Which is the main thrust of this work, which almost wholly eschews numerical analysis.
46 HRLR 9 (2009), 37^60

Bruinsma, in a 2006 piece, examines the relationship between the legal

background of judges, their individual opinions and national bias.40 Judges
were interviewed. Backgrounds were classified as former judges, former
academics, former administrators, and former practising lawyers, with a fifth
category for those whose prior experience was a combination of the above.
Bruinsma concludes that the formative years do affect judicial temperament
in the Strasbourg Court. The distinctive features of the four classifications of
former experience are marked by identifiable tendencies. Former practitioners
are more likely to see themselves as members of a collegiate body delivering
majority judgments; the filing of separate opinions is of minor importance.
Former administrators and academics prefer to decide cases one by one as
building dynamic human rights case law. Former trial judges and lawyers are

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

characterised as used to thinking in terms of case particularities, while
former academics and administrators are characterised as used to thinking in
terms of the general interest and policy considerations. But it is also clear
that these were merely tendencies and not universal truths about background.
Voeten has also sought to draw conclusions from quantitative data.41 But his
conclusions differ from those of Bruinsma, and are deeply rooted in the judicial
activism versus judicial restraint debate. This study leads to four conclusions.42
Firstly, judges do vary in the deference they show to respondent States in asses-
sing whether there has been a violation of the Convention. Secondly, politics
plays a role in judicial appointments to the Strasbourg Court.43 Thirdly,
Member States seek to make appointments to the Strasbourg Court which
match their preferences.44 Finally, the Strasbourg Court’s composition has
become more activist over time ‘as governments have tended to replace
more restrained judges with more activist judges’.45 Voeten argues that this is
driven by increasing European integration, and that States aspiring to mem-
bership of the European Union seek to show their human rights credentials
by appointing activist judges.46

40 Bruinsma, ‘Judicial Identities in the European Court of Human Rights’, in A van Hoek (ed),
Multilevel Governance in Enforcement and Adjudication (Antwerp: Intersentia, 2006) at 203.
See also Bruinsma, ‘The Room at the Top: Separate Opinions in the Grand Chamber of the
ECHR (1998-2006)’, (2008) Ancilla Juris 32.
41 Voeten, ‘The Politics of International Judicial Appointments: Evidence from the European
Court of Human Rights’, (2007) 61 International Organization 669.
42 Ibid. at 695^7.
43 For a study of the appointments process, see Interights, Judicial Independence. Law and Practice
of Appointments to the European Court of Human Rights (London: Interights, 2003).
44 Voeten, supra n. 41 at 696, concludes that ‘judges whose previous careers were primarily as
diplomats or bureaucrats are significantly less activist than judges with other previous
career tracks.’
45 Ibid. at 697.
46 The Copenhagen criteria for membership of the European Union include stability of institu-
tions guaranteeing democracy, the rule of law, human rights and respect for and protection
of minorities, see: http://europa.eu/scadplus/glossary/accession_criteria_copenhague_en.htm
[last accessed 13 November 2008].
 Separate opinions in the ECHR 47

Arold’s study47 involved three elements: interviews with judges and staff at
the Strasbourg Court, eight weeks spent at the Court studying ‘the organisa-
tional behaviour and attitudes inside the Court’,48 and a case analysis involv-
ing judgments delivered under Articles 8^10 of the Convention between
11 November 1998 and 31 October 2001. The overall purpose of the study was
to determine whether three variables49 affected the way judges behave. This
study concludes:
My conclusion is this: in the Court, there is a legal culture that
successfully overrides the (legal) difference between its member
states. The rich diversities that come to the Court create no obstacles to
its work. . . .

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

The Court is thus an example of convergence. The permanent judges
adapt to the Court’s legal culture. A key element of that legal culture . . .
is a sense of working together. . .50
It would seem that, for Arold, the recognition of working with a common
legal culture facilitates respect for differences of opinion while also
applying a pressure for consensus, and so provides a working environment
in which those differences can readily be expressed in separate opinions.
The principal determinant of a propensity to write separate opinions
is the judge’s background, though this is described as having only a small
impact.51
It cannot now be said that the subject of separate opinions is an under-
researched aspect of the work of the Strasbourg Court. The work encapsulated
above shows some fascinating insights into judicial behaviour, some common
themes and some diverging conclusions.

4. Some Quantitative Outcomes of the Leicester Study

A. Some Basic Numbers
Rivie're records52 that from its inception until 31 December 1998 there were
908 separate opinions in judgments on the merits which can be categorised
as shown in Table 1.

47 Arold, The Legal Culture of the European Court of Human Rights (Dordrecht: Martinus Nijhoff,
2007).
48 Ibid. at 16.
49 Historical-political background, vocational background, and geographical-legal background.
50 Arold, supra n. 47 at 160.
51 Ibid. at 160^1.
52 Rivie're, supra n. 38 at 25, n. 113. Rivie're does not state the number of cases in which these
opinions occurred.
48 HRLR 9 (2009), 37^60

Table 1. Analysis of separate opinions 1960^1998

Type Number Percentage

Dissenting opinions 413 45.5

Concurring opinions 204 22.5
Partially dissenting opinions 170 18.7
Identified simply as separate opinions 95 10.5
Declarations 26 2.8
Total 908 100.0

Our study identifies the following types of judgment and opinion in the
Court: 53

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

 A unanimous judgment of the Court.
 A majority judgment of the Court.
 A dissenting opinion by a single judge.
 A concurring opinion of a single judge.
 A partly dissenting opinion by a single judge.
 A partly dissenting and partly concurring opinion by a single judge.
 A joint dissenting opinion by two or more judges.
 A joint concurring opinion by two or more judges.54
 A joint partly concurring and partly dissenting opinion by two or more
judges.

In some cases, a judge might file a partly dissenting opinion of his or her
own, and join in a partly concurring opinion put forward by other judges.
One of the features of our quantitative work was the difficulty of counting in
the context of the Strasbourg case law. Throughout our consideration of the
results of our statistical analysis, we were constantly drawn to the need
also to make qualitative judgments in order to avoid presenting distortions
from the raw numbers.
Both Bruinsma and Voeten make significant use of separate opinions with-
out drawing sharp distinctions between dissenting and concurring opinions.
At one level this approach is justified. Any separate opinion, whether dissent-
ing or concurring, is disagreeing with some aspect of the judgment of
the Court. But, in the case of the dissent, the difference of opinion extends to
outcome, whereas in the case of the concurring opinion, the disagreement
goes only to the reasoning by which the majority reaches its conclusion.
While the motivation to write a dissenting opinion is clear, there appears to

53 In all cases, whether a Chamber or a Grand Chamber.

54 Which is sometimes referred to as a joint separate opinion; we have not discerned any signi-
ficant difference between opinions which are described as ‘separate opinions’ and ‘concurring
opinions’.
 Separate opinions in the ECHR 49

be less clarity over the motivation to write a concurring opinion. Some judges
are less inclined to do so than others.55
Many cases before the Strasbourg Court also involve claims that more than
one Convention provision has been violated. Where the Court concludes that
there has been a violation of a Convention provision, the issue of just satisfac-
tion may also be under consideration. The dissent or concurring opinion may
only extend to one of a number of issues before the Court. As we discovered
when interrogating our database, deciding what combinations are significant
and how to categorise individual cases is deeply problematic. The nature of
the majorities on particular issues can be of very considerable significance.
Take, for example, the case of Roche v United Kingdom56 in which the Court
decided 9-8 that there was no violation of Article 6(1); 16-1 that there was

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

no violation of Article 1 of Protocol No 1; 17-0 that there was no violation of
Article 14; 16-1 that there was no violation of Article 13; 17-0 that there was a
violation of Article 8; and 17-0 that there was no violation of Article 10.
Simply categorising this as a 9-8 decision of the Grand Chamber misrepresents
the levels of agreement and disagreement on the particular issues which
arose in the case. Simply counting by reference to issues rather than cases is
also problematic, in that many cases have primary and secondary overall
issues. To treat them alike and in isolation from the set of circumstances pre-
sented to the Court again misrepresents the position. Such considerations led
us to approach simple numerical data with some scepticism in drawing conclu-
sions, and forming hypotheses, solely from the numbers drawn from our data-
base. However, some propositions can be put forward in a tentative manner,
since one of the purposes of this article is to report some of the quantitative
findings drawn from the initial interrogation of the database of cases.
The first surprise is the number of different types of separate opinion which
are used by the Strasbourg Court, combined with the frequency with which
cases contain separate opinions. The second surprise is the relative infre-
quency with which the national judge57 is the sole dissenting voice in a case
in which a violation of the Convention is found. Most often, where the national
judge is a dissenting judge, one or more other judges also dissents.58 We could
discern no evidence to suggest that this was the result of coalitions among
judges at the Strasbourg Court.

55 Former Judge Hedigan is cited by Bruinsma as saying that it is futile to write separate concur-
ring opinions; he is quoted as follows: ‘One agrees with the judgment, that is enough. . . . I do
feel writing a concurring opinion is rather useless’. See Bruinsma, supra n. 40 at 203.
56 Roche v United Kingdom 2005-X; 42 EHRR 599.
57 Under Article 27(2) ECHR the judge elected, in respect of the Contracting Party against whom
the application alleging a violation of the Convention is made, sits as an ex officio member of
the Chamber or Grand Chamber which decides the case. If there is no such judge, or that
judge is unable to sit, an ad hoc judge is appointed by the Contracting Party who sits as the
national judge.
58 See below.
50 HRLR 9 (2009), 37^60

Unanimous Non-unanimous
800

700

600

500

400

300

200

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

100

0
1999 2000 2001 2002 2003 2004
Figure 1. Number of non-unanimous judgments: all judgments.

In our data set, 80 percent of cases were non-unanimous in the sense that
there was not a single unanimous opinion of all the judges of the Chamber or
Grand Chamber hearing the case.59 The incidence of the use of the ability to
deliver a separate opinion is high. The position over time is shown in Figure 1.
The number of non-unanimous judgments has remained fairly
constant over the six years of the study ranging from 69.5 percent in 1999 to
84.5 percent in 2001.
We took the view that earlier studies had not focused sufficiently on the
incidence of dissenting opinions as a particular type of separate opinion.60
We did extend the Leicester Study to take a closer look at the 166 judgments
of the Grand Chamber over the nine year period from 1 January 1999 to
31 December 2007. Of these, just 24 (14.5 percent) were unanimous decisions
of the Court on every issue before it with no concurring opinions annexed to
the judgment of the Court. However, making some rough and ready judgments
on the core issue before the Court could justify concluding that the Court was
essentially unanimous on these core issues in 70 cases (42 percent). Since the
Grand Chamber is charged with determining serious questions affecting
the interpretation of the Convention,61 it is perhaps unsurprising that the use
of both concurring and dissenting opinions is much more the norm than the

59 This calculation adopts the approach of Bruinsma and Voeten in viewing all separate opin-
ions, whether dissenting or concurring, as representing some disagreement with the judg-
ment of the Court.
60 For further discussion of dissenting opinions, see below.
61 On relinquishment to it by a Chamber under Article 30 ECHR, or on referral under Article 43
ECHR.
 Separate opinions in the ECHR 51

Table 2. Majorities in the Grand Chamber 1999^2007

Majority Number

17-0 70
16-1 2663
15-2 8
14-3 7
13-4 7
12-5 25
11-6 7
10-7 10
9-8 6

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

exception in its decision-making. There were dissenting opinions on some
aspect of the case before the Grand Chamber in 133 cases (72 percent). Indeed
dissents are common in the Grand Chamber. Again using some rough and
ready judgments about the core issue in cases before the Grand Chamber, the
picture shown in Table 2 emerges in terms of the overall outcome of cases.62
There were 55 cases (33 percent) where the outcome of the Grand Chamber
judgment was that there was no violation of the Convention. This is a higher
proportion of cases in which no violation is found than among judgments of
Chambers.64

B. The Outcome of Cases

The majority of cases which proceed to judgment result in a finding by the
Court of the violation of some provision of the Convention. Very many cases
involve complaints of violations of a number of provisions of the Convention.
We found that in 90.1 percent of all cases, the Court found a violation of at
least one Convention provision, with just 9.9 percent of cases resulting in a
conclusion that there had been no violation of the Convention.
The proportion of cases in which no violation of any Convention provision
was found has varied over time. In 2001, for example, just eight percent of
judgments found that there was no violation, whereas in 1999 and 2004
some 13 percent of judgments found no violation. The pattern over the six
years under investigation is set out in Table 3.

62 Rather than separating out issues arising in the cases.

63 Of which 16 might be characterised as sole dissents by the national judge on a significant
issue raised in the merits of the case.
64 For an interesting discussion of judgments of the Grand Chamber in which no violation is
found, see Mowbray, ‘No Violations But Interesting: A Study of the Strasbourg Court’s
Jurisprudence in Cases where no Breach of the Convention has been Found’, (2008) 14
European Public Law 237.
52 HRLR 9 (2009), 37^60

Table 3. Proportion of cases in which violations found

Year Violation (%) No violation (%)

1999 87.0 13.0

2000 91.8 8.2
2001 92.0 8.0
2002 91.1 8.9
2003 88.7 11.3
2004 86.9 13.1

The number of judgments of the Grand Chamber between 1999 and 2007
which found a violation of some Convention provision is 111 (67 percent).
The standout conclusion of our data is that judges of the Strasbourg Court

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

frequently exercise their prerogative to file a separate opinion. Most of these
are concurring opinions, but there remains a significant proportion of dissent-
ing opinions.

(i) Dissenting opinions

The task of analysing dissenting opinions was complex. While every dissent
represents a difference of opinion as to the outcome of the case, some dissents
relate to secondary issues in the case while others represent rather more fun-
damental disagreement with the reasoning of the Court. This means that a
qualitative judgment needs to be added to any quantitative reporting of
dissents.
We considered that it might be fruitful to examine in some detail cases
where there was a single dissenting opinion. This group of cases refers to
those dissenting opinions which are not joined by other judges, but represent
a single dissenting voice by one member of the Chamber or Grand Chamber.
We were also concerned to examine the incidence of sole dissents by national
judges. The starting point was to explore whether national judges were respon-
sible for more single dissenting opinions than other judges in the case.
But the frequency with which judges append a single dissenting opinion of
their own is in any event not high. We found only 211 such cases in our core
dataset. But these included 134 judgments against Italy65 in which there was
a virtually identical dissent by the national judge in respect of the Court’s
omnibus approach to issues relating to the length of proceedings in the
Italian courts. If this atypical block of cases is excluded, our dataset consisted
of just 77 cases (0.2 percent of the cases in our dataset). Single dissents by
national judges are few in number,66 indicating that the Strasbourg Court is

65 Delivered in February 2002.

66 Of these 77 cases, 42 can be characterized as sole dissents by the national judge. The dissents
number as follows in relation to the national judge: Turkish: 20; Italian: 13; British: 2;
 Separate opinions in the ECHR 53

not the place where national judges routinely seek to defend the interests of the
country in respect of whom they are elected, or serving as an ad hoc judge.
Examination of the sole dissents by other than the national judge led us to con-
clude that there could be no suggestion of proxy voting by Member States in
sympathy with the position of the respondent State. If anything, it was judges
who scored highly on the judicial activism/judicial restraint scale in Voeten’s
article67 who were well represented among the sole dissenters in this sample
of cases.
Many cases involve judgments on complaints of violations of more than one
Convention provision. This presented a difficulty of classification: should we
count by reference to findings or by reference to judgments? We decided to
count for the purpose of this enquiry by judgment, since this might illustrate

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

most dramatically the cause of the disagreement between the majority and
the sole dissenting voice. We have also focused on differences of opinion
on the substantive articles of the Convention rather than on the issue of just
satisfaction.68
In addition to the 211 single dissenting opinions, we identified:
 205 joint dissenting opinions
 146 joint partly dissenting opinions
 103 single partly dissenting opinions
 three joint partly dissenting and partly concurring opinions.

Such opinions did not all occur in separate cases; combinations of different
types of opinions can be found within individual cases.
Voeten reports that 900 of the 6,749 judgments of the Strasbourg Court
between 1955 and 30 June 2006 included at least one dissenting opinion.69
These figures are broadly in line with those found in the Leicester Study. So
we can say that approximately 25 percent of Strasbourg judgments on the
merits are unanimous, 15 percent contain at least one dissenting opinion, and
60 percent contain at least one separate concurring opinion. This means that
eighty-five cases out of every hundred are unanimous as to the outcome even
if the reasoning for that outcome is not the same in the minds of all the judges.

Russian: 2; Bulgarian, Cypriot, Greek, Latvian, Slovakian: 1 each. There is some double count-
ing in that there are a number of cases where both a judgment of a Chamber and of the
Grand Chamber in the same case are included. One of the Italian cases involved the national
judge as the only judge voting in favour of a violation: in Perna v Italy 2003-V; 39 EHRR 563,
the Court ruled 17-0 that there had been no violation of Article 6(1), and by 16-1 that there
had been no violation of Article 10. Judge Conforti, the Italian judge dissented and considered
that there had been a violation of Article 10.
67 See Voeten, supra n. 41 at 686.
68 On which the Court has been criticised for its unstructured approach: see Mowbray, ‘The
European Court of Human Rights’Approach to Just Satisfaction’, [1997] Public Law 647.
69 Voeten, supra n. 41 at 684.
54 HRLR 9 (2009), 37^60

One of our original objectives was to seek to discern the reasons for dissent-
ing opinions. We looked at the incidence of dissenting opinions by article of
the Convention. This again proved to be difficult, because so very many cases
involve complaints of the violation of more than one provision of the
Convention. In addition, some articles of the Convention attract many more
complaints than others. We suspect that it is simply the volume of cases
which puts Article 6 at the top of our ‘league table’;70 qualitative consideration
of a sample of such cases suggested that dissents in this area tended to relate
to technical points of court structure and procedure. When qualitative factors
are applied to raw numbers, we concluded that Article 8 generated the highest
proportion of dissenting opinions, followed by Article 10 with most other arti-
cles some way behind the proportion of dissents in these two fields. But we

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

express this view with caution; the number of cases in respect of some other
Convention provisions is so small that raw percentages may have little or no
statistical significance.
Members of the team71 read all the dissents under particular Convention arti-
cles and came together to suggest hypotheses explaining the dissents in the
areas under examination. The outcome was trite. The judgments under particu-
lar Convention provisions did not suggest any discernible pattern of disagreement
either regionally or by issue. This re-inforces earlier research which had sug-
gested that dissents occurred randomly rather than predictably.72 The random
occurrence of dissents is not used in any pejorative sense, but in terms of the pre-
dictability of a particular case generating a dissent. Certain types of dissent
might be predictable, such as the reluctance of theTurkish judge to acknowledge
the liability of the State for certain actions of its security forces, but beyond that
observations became more platitudinous. The source of the dissent was a dis-
agreement with the majority born of the open texture of the Convention provision
(especially in relation to Article 8), or the scope of the State’s margin of apprecia-
tion (for example, under Article10).

(ii) Concurring opinions

While we would not wish to dismiss the significance of separate concurring opin-
ions, their visibility and utility would seem to be less than that of dissenting opin-
ions. While today’s dissent might be tomorrow’s majority, the glosses on the
reasoning of the judgment of the Court to be found in concurring opinions seem

70 Even when attempts are made to look at the data in percentage terms.
71 The authors are grateful for the assistance provided by Dr Murat Tumay in this aspect of our
research.
72 Arold, supra n. 47 at 160, following the application of three variables ((a) historical-political
background, (b) vocational background, and (c) geographical legal background) to the
voting behaviour of judges in cases involving Articles 8, 9 and 10 ECHR.
 Separate opinions in the ECHR 55

to have little attraction for practitioners, and to be the province of the scholar at
best. Bruinsma says of both concurring and dissenting opinions:
The minor legal status of separate opinions compared to the majority
judgment has prevented lawyers from becoming fully aware of their legit-
imating potential. Practising lawyers are simply not interested, but even
in academic writing separate opinions are disliked: they seem to detract
from the authority of the majority judgment.73
While we would not completely endorse that proposition, we would acknowl-
edge that the shelf life and impact of a concurring opinion is somewhat less
than that of a dissenting opinion. Whereas the lawyer (or academic) looking
for arguments to support a change in the Strasbourg Court’s approach to a par-

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

ticular issue is likely to trawl through relevant dissenting opinions, that
research is almost certainly less likely to extend to concurring opinions. Our
reading of a selection of separate concurring opinions highlighted the consid-
erable variations in the length and detail of such opinions. They vary from
opinions of only a few lines in length making a brief point to substantial
pieces of writing. We were certainly left with the impression that some brief
concurring opinions could easily have been omitted with no adverse impact
on the quality of the overall decision.74 It remains arguable whether the ability
to write concurring opinions renders the decision-making process more
efficient. On the one hand, the possibility of the use of a concurring opinion
does mean that a majority decision can be reached on the substance without
the need to secure agreement on every point by which the conclusion has
been reached. On the other hand, additional work is required of the judge
who feels the need to qualify the reasoning of the judgment of the Court in a
concurring opinion.

5. Our Interviews With Judges: Voices From The Court

In October 2007 the research associate on the project conducted structured
interviews with nine judges at the Strasbourg Court.75 This was a self selecting
group of judges willing to participate in the interviews, and so cannot be
regarded as a representative sample of the Strasbourg judiciary. All but one of
the interviews were recorded and transcribed.76 The opportunity was taken

73 Bruinsma and de Blois, supra n. 32 at 186.

74 See also comment at n. 55.
75 Some of the questions put to the judges were inspired by those which had been put by
Bruinsma in his interview with Luzius Wildhaber in 2003, and reported in Bruinsma and
Parmentier, supra n. 3.
76 For the ninth, the Leicester Study is dependent upon notes taken during the interview by the
research associate. The authors are grateful to the judges who participated, and to the
President of the Court who facilitated arrangements for Dr Boussiakou’s visit to the Court.
56 HRLR 9 (2009), 37^60

to raise questions concerning not only concurring and dissenting opinions,

but also on the nature of the Court’s role, and the challenges the Court faced
in the future. These voices from the Court, though selective, contain important
reflections on the work of the Strasbourg Court a decade after the coming
into force of the re-structuring of the Convention organs in Protocol No. 11.77

A. The Strasbourg Court as A Constitutional Court

We have taken as axiomatic that the form of judgments is linked to the func-
tion of a court, and that a judge’s view of the function of a court may well
affect the likelihood of writing a separate opinion where that is permitted. We
have also noted the increasing recognition of the constitutional functions of

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

the Strasbourg Court.
None of our judges accepted that the Strasbourg Court was a constitutional
court in an orthodox sense, since it had no power to invalidate national legisla-
tion and its role was solely to determine whether there had been a violation of
the Convention. But all accepted that the Court had developed organically
from the original international court model into a court whose jurisdiction
was compulsory for the Member States, and which made determinations on
the application of individuals and States. Though its constitutional function
was not of a generalist nature, the Court is charged with the interpretation
and application of a constitutional instrument in a specialist field.

B. Judicial Activism and Judicial Restraint

Much prior research into the use of separate opinions, especially in constitu-
tional courts, has been set in the landscape of the debate about judicial activ-
ism and judicial restraint. All of our judges were eminently aware of this
debate, and hinted at an understanding of where they were perceived to be on
the spectrum of activism and restraint. But none liked the use of such labels,
principally because they considered that such labels could not universally
apply. In some areas, a judge might be activist, and in some areas restrained.
This was well articulated by Judge D:
You have to bear in mind that judges have their individual personal men-
tality. I cannot speak about categories. In one case a judge may appear
to be . . . conservative and in another case maybe more liberal. They have

The interviews took place over a period of four days in October 2007. In order to maximise
the frankness of responses, it was agreed that no judge would be quoted by name in any
published material.
77 For a discussion exploring the responses of the judges in more detail, see White and
Boussiakou, ‘Voices from the Strasbourg Court’, available at: http://ahrclawleicester.blogspot.
com/ [last accessed 17 December 2008].
 Separate opinions in the ECHR 57

their own experiences, their own beliefs, convictions etc. Therefore such
a line between groups cannot be drawn because . . . a conservative
judge may be liberal in some cases . . . and the other way round
[in others].
However, our judges did think that the legal background which judges
brought to the Court might influence their approach to the interpretation
and application of the Convention, and hence the likelihood of their writing
separate opinions. For example, Judge F said:
There are some judges who have a more activist background. Judges who
are academics before or judges who belong . . . to some other profession
were . . . more oriented towards a more individualistic or more activist
approach. There are judges, particularly those who come from the

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

civil service or the judicial system, maybe not the constitutional court,
[but] a regular judicial system that might be . . . trained to exercise more
restraint.
One theme which emerged from the interviews is that judges tend to think
of their role in the context of the totality of their work, which is, of course,
dominated by determining questions of admissibility. It is easy to forget, when
reading judgments of a Chamber or a Grand Chamber, that this represents
only a small proportion of the total workload of a Strasbourg judge.

C. The Value of Concurring and Dissenting Opinions

Our judges were overwhelmingly in favour of the use of concurring and dis-
senting opinions, because it demonstrated the nuances of human rights
protection, promoted debate among the Strasbourg judiciary, indicated that
questions of interpretation and application were not always clear-cut, could
provide consolation for the losing party who would know that some judges
appreciated their position and arguments, and demonstrated openness and
transparency.
The motivation to write dissenting opinions was universally stated to be
disagreement with the majority as to the outcome. Judge B expressed this
sense of obligation very succinctly:
. . . you believe strongly enough in your view that you feel you have to put
it down on paper.
The motivation to write a concurring opinion was less clear, and there are
clearly differences of view among the Strasbourg judges as to their necessity
in every case. Judge H said:
You have different kinds of separate opinions. You have opinions which
are really very individual in the sense that someone insists on writing a
separate opinion just to state from an individual angle something which
58 HRLR 9 (2009), 37^60

is not important and which, with some self restraint, . . . these judges
could have avoided in order to strengthen or to give more strength to
the majority judgement; and, if this is so, then this is rare but [in those
circumstances, I am] not in favour of separate or dissenting opinions.
I am in favour of them if they really have to develop in a serious
way some new ideas or . . . tackle the problem from different angles,
but [not] if it is only a kind of individual performance, individual
publicityçso not all opinions are of the same character; that is also true.
Our judges’ views of the Articles most likely to generate concurring and
dissenting opinions largely coincide with our conclusions from the dataset.
While most issues under Articles 2 and 3 are now well settled,78 the interpre-

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

tation and application of Articles 8 and 10 were seen as likely to generate
differences of view.

D. Consequences of the Enlargement of the Council of Europe

We asked our judges to reflect, nearly a decade after the expansion of the
Convention countries, on the impact of the accession of a significant number
of countries of central and eastern Europe on the Convention system, and
whether judges from these countries had brought new thinking to the Court.
The responses support Arold’s notion of convergence in the Court.79 It was
observed that many of the judges from these countries had trained in western
Europe or in the United States. But perhaps more significantly there was a
commitment to the Strasbourg case law. Judge H said:
I call it an acquis, like you call it in the European Union an acquis
communautaire, and here I think it’s the acquis of the Court, and I think
it depends from person to person but relatively quickly it goes over to
everyone, I would say so.
It was, however, acknowledged that accession of these countries had
brought new problems to the Strasbourg Court, most notably in the field of
the enforcement of national judgments in the national legal orders, and issues
relating to property settlements which sought to provide compensation
for past expropriations. The collegial nature of the Strasbourg Court seems to
be alive and well. This collegial view of the Court is typified in a remark
by Judge B:
I always believe that the more multi-cultural the input is, the better the
final result, so I am not at all scared in finding that the Council of

78 With notable exceptions in relation to medical termination of pregnancy, and various forms of
euthanasia.
79 Arold, supra n. 47 at 160.
 Separate opinions in the ECHR 59

Europe now embraces many more countries, traditions, values, different

values than it did before. I believe that we have all to learn something
from each other. I believe that the fact that judges come from more and
more different backgrounds enriches the reservoir of the court.

6. Some Reflections
One of the objectives of our project was to see whether simple quantitative
analysis of a significant body of Strasbourg case law revealed patterns in its
decision-making that were not apparent from a case by case analysis. We have
failed to identify any such patterns, though we have highlighted the extent to

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

which separate opinions are a central feature of the decision-making process
in the Strasbourg Court. The outcomes might be regarded as something of a
disappointment, since they simply tell us what we already knew intuitively:
that judges are individuals and that certain provisions of the Convention, nota-
bly Article 8, are open-textured and so likely to generate differences of inter-
pretation. Our analysis has involved consideration of almost 30,000 individual
judicial votes in just under 4,000 cases in our dataset. Those votes were cast
by permanent judges and ad hoc judges. What is striking is how often there is
agreement as to result, but also how frequently a judge wishes to add his or
her personal voice to the judgment of the Court in the form of a concurring
or dissenting opinion.
Both the homogeneity and heterogeneity of the Strasbourg judiciary are
features of the system. The case law is evidence of a collegiality, born in part
of multi-judge panels determining the merits of cases, but also of the principle
of convergence identified by Arold in her study.80 Our key conclusion is that it
is judicial temperament which determines the extent to which a judge appends
his or her own individual voice to the judgment of the Court in filing concur-
ring or dissenting opinions. Judicial temperament is shaped by a judge’s prior
experience and by the value set which that judge brings to his or her judicial
work. This in turn reflects the pluralism, tolerance and broadmindedness
that the Court has repeatedly stated are the characteristics of a democratic
society.81 In our estimation it is differential views of the requirements of a
democratic society reflecting the value pluralism at the heart of the
Convention which accounts for the majority of dissenting opinions.
The approach of the Strasbourg Court is casuistic. If a case is declared
admissible, then there will be a determination on the merits regardless of the
nature of the issue raised. It may be a highly novel one or it may be simply
the application of well-established principles on, for example, the requirement

80 See text at supra n. 47.

81 See, for example, Gorzelik and Others v Poland 2004-I; 38 EHRR 77 at paras 88^93.
60 HRLR 9 (2009), 37^60

to deliver judgment within a reasonable time. The Court itself in its own data-
base classifies cases according to three levels of importance. As at 11
November 2008, the HUDOC database returns 10,037 judgments in English, of
which 1,343 are classified as of Level 1 importance82 and 7,334 are of Level 3
importance.83 Each year the Court delivers more judgments than in the pre-
vious year. In the final year of our dataset, there were 718 judgments, but in
the three ensuing years there were 1,105, 1,560 and 1,503 judgments respec-
tively. Just a decade ago, there were just over 100 judgments handed down
each year. Whereas in 1997, there were 4,700 applications allocated to a deci-
sion body, in 2007, there were 41,700 such applications.84 The case for some
form of selection of cases for determination on the merits would appear to be
overwhelming, but that would require a fundamental rethink to the process

Downloaded from hrlr.oxfordjournals.org by guest on April 7, 2011

of application to the Strasbourg Court, since a system of selection based upon
the current volume of applications to the Strasbourg Court simply leaves the
Court overwhelmed with the determination of applications. Reform of the
system for the adjudication of claims was not, however, within the remit of
our research project. But it is remarkable that judges still find time to write dis-
sents and concurring opinions with the frequency with which they occur in
such a context.
Separate opinions have been symbolic in the creation of a European human
rights discourse because they are personal voices in that discourse which qua-
lify the institutional voice of the Court. Strasbourg judges respect each other’s
views and despite the workload do not shirk deeply held personal responsibil-
ities to state their views where they disagree as to outcome or reasoning in
cases coming before them. Those personal voices are to be welcomed as an
antidote to an increasingly formulaic style of judicial reasoning in the judg-
ments of the Court.

82 Cases making a significant contribution to the development, clarification or modification of

the Court’s case law.
83 Judgments with little legal interest.
84 Source of all figures: Council of Europe, supra n. 5.