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- The Européen Convention on H u m a n Rights as n

Source of the Constitutions! Adjudication on Freedom

of Expression in Spain

-A

n g e l

R

o d r í g u e z

- V

e r g a r a

D

ía

Th°v'? stibmiUecJ for asseement with a view to obtaining the Degree of

Doc.cr of Laws of the European University Institute.

Florence

1994

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p ? sl °

E U R O P E A N U N I V E R S I T Y I N S T I T U T E

D E P A R T M E N T O F L A W

N A T I O N A L A N D E U R O P E A N S T A N D A R D S O F P R O T E C T I O N

O F H U M A N R I G H T S .

- The European Convention on Human Rights a s a

Source of the Constitutional Adjudication on Freedom

of Expression In Spain

-A

n g e l

R

o d r í g u e z

-V

e r g a r a

D

íaz

Thesis submitted for assesment with a view to obtaining the Degree of

Doctor of Laws of the European University Institute.

Florence

1994

A Susana, que hizo este trabajo posible.

T his work have received an invaluable help from a

num ber of p erson s. I w ish in particular express my

d e e p e s t gratitude to professor Antonio C a sse se , who

encouraged and patiently supervised my work at the

European University Institute. Professor Luis Diez-

Picazo also red part of th e manuscript and provided

useful com m ents. J. G reenleaves and N. Outrawn

carried out th e difficult task of revising th e English

L anguage. The staff of the Institute, particularly E.

Zaccardelli and A. Tuck, w ere also of a great help.

Finally, a special mention is due to professor Juan

J o s é Ruiz-Rico, who unfortunately could not read the

work at its final stage. I remain in the h o p e that he

w ould not be unsatisfied with the result.

NATIONAL AND EUROPEAN STANDARDS OF PROTECTION OF HUMAN RIGHTS.

The European Convention on Human Rights a s a Source of the Constitutional

Adjudication on Freedom of Expression

in Spain

-A

ngel

R

odríguez

INTRODUCTION

PARTI

NATIONAL AND EUROPEAN STANDARDS OF PROTECTION OF HUMAN

RIGHTS. SOME METHODOLOGICAL REMARKS.

I.

National and European standards of protection of Human Rights. S o m e

methodological remarks.

PART II

MODELS FOR A COMPARATIVE RESEARCH.

II.

National Human Rights Protection in an International Context: The European

Convention on H u man Rights in the domestic legal order of Italy and Spain.

III.

Constitutional Rights protection in a Federal Context: the United States of

America.

IV.

H u m a n Rights Protection in a Supranational Context: The European Community.

PART III

CASE-STUDY:

THE CASE-LAW OF THE SPANISH CONSTITUTIONAL COURT ON THE RIGHT

TO FREEDOM OF EXPRESSION.

V.

Freedom of expression under the European Convention on Human Rights and

under the Spanish Constitution.

VI.

Legitimate Restrictions to the Freedom of Expression under the Stasbourg Test

and under the Spanish Constitution.

VII.

Restrictions to the Freedom of Expression for the protection of Morals and for

maintaining the Authority and the Impartiality of the Judiciary.

VIII

Restrictions to the Freedom of Expression on the ground of the National Security

and the Prevention of Disorder.

IX.

Restrictions to the Freedom of Expression on the ground of the Reputation or

Rights of Others.

PART IV

INTRODUCTION

PARTI

NATIONAL AND EUROPEAN STANDARDS OF PROTECTION OF HUMAN

RIGHTS. SOME METHODOLOGICAL REMARKS.

CHAPTER I

NATIONAL AND EUROPEAN STANDARDS OF PROTECTION OF HUMAN RIGHTS.

SOME METHODOLOGICAL REMARKS.

(1) D O M E S T I C C O U R T S A N D T H E E U R O P E A N C O N V E N T I O N O N H U M A N RIGHTS:

T H E P R O B L E M O F STANDARDS.

9

1. The different effects of the European Convention on domestic

law

9

2. Constitutional interpretation and the European Convention.

15

(2) D O E S T H E C O N V E N T I O N REAL L Y PROVIDE A

MINIMUM COMMON STANDARDS

1. The Convention as a minimum: Article 60 ECHR.

18

2. Judicial activism and judicial self-restraint of the European

Court of H u m a n Rights.

26

3. The

consensus principle

and the

"notions autonome

s"

33

4. The restrictions and the

"margin o f appreciation'.

42

PART II

MODELS FOR A COMPARATIVE RESEARCH.

CHAPTER II

NATIONAL HUMAN RIGHTS PROTECTION IN AN INTERNATIONAL CONTEXT: THE

EUROPEAN CONVENTION ON HUMAN RIGHTS IN THE DOMESTIC LEGAL ORDER

OF ITALY AND SPAIN.

(1) I N TRODUCTION

55

(2) T H E F O R M A L D O M E S T I C S T A T U S O F T H E C O N V E N T I O N IN ITALY A N D

SPAIN.

59

1. The Convention as an international treaty in Italy and Spain.

59

2. The Constitutional value of the Convention in Spain.

68

(3) T H E APPLICATION O F T H E E C H R BY T H E SPANISH A N D T H E ITALIAN COURTS:

A G E N E R A L ASSESSMENT.

80

1. The Convention before the Italian and the Spanish Supreme Courts.

80

2. The Convention before the Italian and the Spanish Constitutional

Courts.

85

3. The Convention as the only source for the domestic standard of

protection of fundamental rights.

92

CHAPTER III

CONSTITUTIONAL RIGHTS PROTECTION IN A FEDERAL CONTEXT: THE UNITED

STATES OF AMERICA.

(1) INTRODUCTION

101

(2) FEDERAL A N D STATE S T A N D A R D S O F

PROTECTION O F F U N D A M E N T A L

RIGHTS

104

1. The

of the Federal Bill of Rights.

104

2. The

new federalism

and its critics.

110

3. Areas Covered by state courts’ right-extending decisions.

119

(3) A R O L E F O R STATE CONSTITUTIONS IN THE PROTECTION O F FEDERALLY

G U A R A N T E E D RIGHTS.

122

1. California Supreme Court decisions.

122

2. State Bills of Rights and the Supremacy Clause.

133

3. Equivalent and Not Equivalent state analysis.

139

CHAPTER IV

HUMAN RIGHTS PROTECTION IN A SUPRANATIONAL CONTEXT: THE EUROPEAN

COMMUNITY.

(1) INTRODUCTION.

149

(2) H U M A N RIGHTS IN C O M M U N I T Y L A W

151

1. The

rebellion

of domestic courts and the

reaction

of the European

Court.

151

2. The sources for the protection of human rights in the case-law of the

European Court of Justice.

157

1. The

the application by the European Court of

community standards of human rights to state action.

173

2. Prospects for a

the application of community

standards of human rights by domestic

courts.

183

P A R T I I I

C A S E - S T U D Y : T H E C A S E - L A W O F T H E S P A N IS H C O N S T IT U T IO N A L C O U R T O N T H E R IG H T T O F R E E D O M O F E X P R E S S IO N .

CHAPTER V

FREEDOM OF EXPRESSION UNDER THE EUROPEAN CONVENTION ON HUMAN

RIGHTS AND UNDER THE SPANISH CONSTITUTION

193

196

(2) THE APPLICABILITY OF ARTICLE 10 ECHR AND ARTICLE 20 CE: SELECTED

CASES.

204

1. The Right to professional secrecy of journalists and the Right to

Rectification.

205

2. Broadcasting.

209

3. Commercial expression.

220

CHAPTER VI

LEGITIMATE RESTRICTIONS TO FREEDOM OF EXPRESSION UNDER THE

S T R A S B O U R G T E S T

AND UNDER THE SPANISH CONSTITUTION.

229

229

230

237

(1) FORMALITIES, CONDITIONS, RESTRICTIONS AND

PENALTIES.

1 .Introduction.

2. States' interferences in freedom of expression.

3. Prior Restraints.

(1) THE SCOPE OF FREEDOM OF EXPRESSION.

1. Article 10 of the European Convention on Human Rights and Article 20

of the Spanish Constitution.

2. The Scope of Freedom of Expression under Article 10 ECHR and under

Article 20 CE.

(2)

1. Accessibility and Foreseeability of a law.

2. The

241

241

244

(3) THE FREEDOM OF EXPRESSION IN A DEMOCRATIC SOCIETY.

245

1. The

of the Freedom of Expression.

245

2. The

and Strict Scrutiny.

248

3. Facts, Opinions and the

250

(4) THE NECESSITY IN A DEMOCRATIC SOCIETY OF A RESTRICTION TO FREEDOM

OF EXPRESSION.

255

1. The

*

255

2. Proportionality.

257

CHAPTER VII

RESTRICTIONS ON FREEDOM OF EXPRESSION FOR THE PROTECTION OF

MORALS AND FOR MAINTAINING THE AUTHORITY AND IMPARTIALITY OF THE

JUDICIARY.

(1) RESTRICTIONS ON FREEDOM OF EXPRESSION FOR THE PROTECTION OF

MORALS.

261

1. Introduction.

261

2. The lack of a European standard on morals and the

263

3. Morals and the protection of childhood.

269

(2) RESTRICTIONS ON FREEDOM OF EXPRESSION FOR THE PROTECTION OF THE

AUTHORITY AND THE IMPARTIALITY OF THE JUDICIARY.

273

1. The

of the Judiciary.

273

2. The

of the Judiciary.

279

CHAPTER VIII

RESTRICTIONS ON THE GROUND OF NATIONAL SECURITY AND THE

PREVENTION OF DISORDER

(1) INTRODUCTION.

287

(2) RESTRICTION OF FREEDOM OF EXPRESSION IN THE INTEREST OF NATIONAL

SECURITY.

287

1. Restrictions in a situation of Public Emergency.

287

1. Restrictions on value-judgments in the interest of the prevention of

disorder under Article 10(2) ECHR.

301

2.

to Public Officials and to the Government.

304

CHAPTER IX

RESTRICTIONS OF FREEDOM OF EXPRESSION ON THE GROUND OF THE

REPUTATION AND RIGHTS OF OTHERS

(1) THE SPEAKER AND

PUBLIC AND PRIVATE

ELEMENTS.

313

1. Introduction.

313

2. Qualified Speakers.

315

3. Speakers subject to further limitations.

319

4. Defamation of Public Figures.

322

(2) THE

EXPRESSION: VALUE-JUDGMENTS AND DESCRIPTION OF

FACTS.

326

1. Facts and Value-Judgments.

327

2. Restrictions on factual speech.

331

3. The Rights of others as a ground for restrictions to value-judgments

and Opinions.

339

P A R T I V C O N C L U S IO N S

CHAPTER X

RECAPITULATION AND FINAL CONCLUSIONS

Recapitulation and Final Conclusions

347

IN T R O D U C T IO N

'..a b o v e all, It m u s t n o t b e forgo tten th a t th e C onvention, a s is

sh o w n esp ecia lly b y its A rticle 60, n e v er p u ts th e va rio u s org an s o f

th e con tra ctin g s ta te s u n d er an obligation to lim it th e rig h ts a n d

freed o m s It g u a r a n te e s ( T h e E uropean C ourt o f H um an R ig h ts,

Handyside

ju d g m en t o f 7 D ecem b er 1976)

H igher Law. L?w?r stan d a rd .

In 1993, representatives of the Constitutional Courts of European Countries held

in Paris the IXth Conference of European Constitutional Courts. The general discussion

panel was dedicated to the relationship between the domestic and the international

systems of protection of Human Rights. In the

to the conference, the

that both systems have on each other was pointed out1 2

.

The

("Let me see") case, decided ten years before by the Spanish

Constitutional Court (hereinafter the

)a, may be a good example

of the existing interaction between the two systems: A publisher had been previously

sentenced by a court for publishing an educational book on sexual matters with this title

1 "In formal terms, the domestic system of protection of rights through constitutional review and the international system based on compliance with international instruments should operate independently of each other, since their points of departure are different. In practice, however, they are no longer independent, since they proceed from common point of reference which have comparable impact as they are received into each other."[Robert, J. (1994) "Constitutional and International Protection of Human Rights: Competing or Complementary systems? General report to the IXth Conference of European Constitutional Courts" in Human Rights Law Journal 15 pages 1-23 at 8]. [The cases and literature cited in the text will be quoted in a footnote by the name of the case and the date of the judgment or by the name of the author and the year of publication, apart from the first time each case or bibliographical reference is cited, in which a full quotation will be made in the footnote. A complete reference of the cases and the sources cited in the text can be found at the end of the work. See "sources and bibliography"].

2

A ver case, sentencia del Tribunal Constitucional 62/82 of 15 October 1982 in

Boletín de

Jurisprudencia Constitucional 19, pages 919-31. The case is taken now only as an introductory

and had consequently brought the case before the

The

upheld the previous decision and ruled that morals were a constitutional legitimate limit

to freedom of expression. The right to freedom of expression is expressly embodied in

the Spanish Constitution. In the same provision a number of limits to this right are listed:

morals are not mentioned among these. Moreover, the

did not state in its

decision that, although not expressly mentioned, it can be deduced from the Constitution

as a whole that morals should be regarded as a legitimate restriction to the freedom of

speech: the only ground on which the

can weigh morals against

a fundamental constitutional right is by means of the European Convention on Human

Rights, of which Spain is à member state and whose Article 10 expressly contemplates

morals as a legitimate restriction to the freedom of expression.

As is well known, the European Convention on Human Rights (hereinafter quoted

as “ECHR" or “the Convention") was drafted within the Council of Europe and signed in

Rome in 1950. Its aim is to lay down in a binding agreement certain principles, also

proclaimed in the Universal Declaration of Human Rights by the United Nations in 1948,

and at the same time to provide for supervision of the enforcement of these principles.

In order to achieve this, a number of fundamental rights are protected by the Convention

provisions, and several bodies (namely, the European Commission of Human Rights, the

Committee of Ministers of the Council of Europe and the European Court of Human

Rights) were constituted to supervise its respect for the contracting states3. Both the

European Commission and the European Court of Human Rights have interpreted and

applied the Convention enabling a real protection of individual rights under the

Convention law in Europe4.

In this thesis, Article 10 of the Convention, the Spanish constitutional provision

3 A general introduction to the European Convention as a whole, or to its mechanisms, will not be made in this work. With regard to these aspects, see Jaco bs, F.G. (1975)

The European

Convention on Human Rights, Oxford:Clarendon Pres; D

Theory and Practice of the European Convention of Human Rights, DeventenKluwer; or

J.E.S. (1987)

The Application of the European Convention on Human Rights, Oxford.Clarendon

4 As is known, both organs will merge in a single Court when the 11 Protocol to the Convention come into force, once it has been ratified by all member states to the Convention. S ee the text of the Protocol in (1994)

Human Rights Law Journal 15 pages 68 ff.

on the freedom of speech and also the

case will be discussed in depth. What is

of particular interest here is that, through this decision, the Spanish Constitutional Court

has used the European Convention on Human Rights to construe the domestic standard

of protection on a fundamental constitutional right. And that, in doing so, it has

introduced a new limitation to the freedom of speech which was not previously embodied

in the Constitution, and by means of which it was possible for the

to

a previous judicial decision restricting the scope of the right. What is

noteworthy of this case is that if there had been no recourse to the Convention, it might

be argued that

standard of protection of a constitutional fundamental right could

have been reached.

The general assumption of this study is that, due to the so called

of the Convention, domestic courts frequently apply it in order to interpret domestic law

on human rights. Moreover, as will be discussed in Chapter I, Constitutional Courts may

equally apply the Convention when construing constitutional provisions on fundamental

rights9. It is clear, however, that the international protection of human rights has not

relieved domestic bodies from their central role in protecting fundamental rights.

Accordingly, European institutions can only provide additional protection of the rights of

the European individual: the State, and the State’s law enforcing authorities, still remain

as the essential bodies for the protection of human rights within their jurisdiction9.

Domestic courts and other domestic bodies may very frequently play an important 5

6

Hi g h e r La w , Lo w e r St a n d a r d.

5 It is remarkable that the application of the Convention as a source to interpret domestic constitutional provisions is usually made by the Constitutional Courts of the member states to the Convention without taking very much into account the formal rank that the Convention holds within each member state domestic hierarchy of laws. On the domestic legal position hold by the Convention in each member state, see infra, Chapter I (in general) and Chapter II (as for Italy and Spain).

6 The studies on the human rights protection at an international level all agree that the task for the international instance is only control, while the protection is for the State. See, for instance, the following paragraph from Evfugenis, D.J. (1978) "Le Rôle de la Convention Européenne des Droits de l'Homme" in Cappelletti, M. (ed)

New perspectives for a common iaw of Europe -

Nouvelles perspectives d'un droit commun de l'Europe, Bruxelles:Brylant, pages 341 ff. at 346:

réalisation de la protection des droits de l'homme.

contrôle de la réalisation de ces droits par l'Etat

role, not only in the protection of the citizen's rights, but also in the integrative process

of Human Rights law In Europe; the interaction between domestic and international

instances, it is usually argued, is the source of positive dialectical developments for the

protection of the fundamental rights of the individual. However, the domestic application

of international standards can also lead to unexpected shortcomings. This work will

discuss the general conditions under which domestic application of the ECHR may lead

to a lower protection of fundamental rights than the one which might have been achieved

by applying only domestic sources.

This possibility comes from the combined action of two features of the

Convention which will be discussed in Part I of this study: its domestic application as a

h ig h e r ia w

and its

of protection of the rights guaranteed therein. Part II

will analyze three different legal systems in which domestic constitutional provisions must

be interpreted in the light of a

on fundamental civil rights: in all these models,

both legal literature and courts' practice have claimed that domestic

interpretation of the domestic constitution should be preferred in those cases in which

a

on a fundamental right is in this way achieved. Chapter II will analyze

how this question has been approached, as far as the Convention is concerned, in two

member states to the Convention which have received the Convention as domestic

applicable law, namely Italy and Spain. Chapter III will discuss how independent

interpretation of state constitutions

the Federal Bill of Rights has been recently

stressed in the United States. Chapter IV, finally, will turn back to Europe: the problem

posed by two different standards on fundamental rights will be there studied as far as

the European Union legal order is concerned.

Theoretical assumptions laid down in Part I and hypothesis drawn from the

different legal models studied in Part II will allow us to study in Part III how constitutional

interpretation is made by a member state's constitutional court in those cases in which

both the Convention and the domestic Constitution provide for protection for the same

fundamental right. This part of the work will therefore study the following crucial question:

when

to the Convention standard should apply and when, on the other hand,

an

construction of the domestic constitution should prevail?

Hi g h e r La w, Lo w e r St a n d a r d.

works have appeared whose aim is that of studying the general application of the

European Convention on Human Rights by the domestic courts in a single member

state7. In order to do this, a number of judgments or decisions where the European

Convention has been quoted - all of them within a specific period of time or covering a

selected judiciary, such as supreme courts or constitutional courts - have been selected

and analyzed. The approach, however, seems to be incomplete: in selecting the

domestic decisions where the European Convention has been expressly quoted, two

important elements may remain beyond the scope of the work: the extent to which the

Convention may

have been applied when it should, and the extent to which domestic

courts may apply the Convention standard

quoting it expressly. In other words,

there is the danger of working on a self-fulfilling prophecy: decisions where the

Convention is applied are the only field of study and conclusions are drawn stating - not

surprisingly, it might be said - that domestic courts do in fact apply the Convention.,

whenever they do so.

This circular approach must be avoided by making a different selection of the

domestic case-law to be studied which should serve as a complement to the selection

based on an express quotation of the Convention's provisions. This second group of

domestic judgments should be selected not from the domestic decisions where the

European Convention is applied, but from the most relevant domestic decisions covering

one specific right protected thereby. These domestic decisions can be studied regardless

of the fact that the European Convention is applied or not. They form a case study which

will eventually support or reverse the conclusions drawn from the general review of the

express application of the Convention. Moreover, due attention is in this way paid to the

extent to which the outcome of the domestic decision is consistent with the Convention,

although the domestic court's reasoning may diverge from the reasoning on the issue

developed in Strasbourg. Indeed, it must be put forward that

rather than

is the crucial question for reviewing domestic law

the Convention.

Following this approach, Chapter V to IX will review how the Convention has

been applied - or not - in the cases on freedom of expression decided by the Spanish

7 See for thè case of Spain Fernandezde Casadevante, C. (1988)

La aplicación dei Convenio

Europeo de Derechos Humanos en España, M adridTecnos, and B

La

Convenzione Europea dei diritti deü'uomo netl'applicazione giurisprudenziale in itaiia,

Constitutional Court. The freedom of expression is a fundamental right protected both

by the Convention and the Spanish Constitution. Spain, as will be seen in Chapter II, has

incorporated the Convention into its domestic legal order and has, moreover, a

constitutional provision by means of which the Convention and the case law of

the European Court of Human rights has a binding effect as for domestic constitutional

construction. These aspects make the Spanish Constitutional Court's case law on

freedom of expression a suitable case-study to analyze the interactions between the

Convention and domestic constitutional adjudication.

The manner in which the freedom of expression has been embodied both in the

Convention and in the Spanish Constitution (Chapter V); the

on imposed restrictions

of the freedom of expression (Chapter VI), and the legitimate aims under which those

restrictions may be imposed (Chapters Vil, VIII and IX) will be studied in Part III.

P A R T I

N A T IO N A L A N D E U R O P E A N S T A N D A R D S O F P R O T E C T IO N O F

H U M A N R IG H T S . S O M E M E T H O D O L O G IC A L R E M A R K S .

National and European standards o f protection of Human Rights. Som e

m ethodological remarks.

CHAPTER I

NATIONAL AND EUROPEAN

STANDARDS OF

PROTECTION

OF HUMAN

RIGHTS.

SOME

M E T H O D O L O G I C A L

R E M A R K S .

1) DOMESTIC COURTS AND THE EUROPEAN CONVENTION ON HUMAN

RIGHTS: THE PROBLEM OF STANDARDS. 1. The different effects of the

European Convention on domestic law; 2. Constitutional Interpretation and

the European Convention. (2) DOES THE CONVENTION REALLY PROVIDE

A

MINIMUM COMMON STANDARD?

1. Judicial activism and judicial self-

restraint of the European Court of Human Rights; 2. The

c o n se n su s p rin cip le

and the

m

n o tlo n s au to n o m es*

3. The restrictions and the

"m argin o f

apprecia tio n

The first section of this chapter will discuss how the Convention is frequently

applied as a source of constitutional adjudication, in spite of the legal rank it finds in the

domestic law of the member states. In section (2) it will be argued that the Convention

can only provide for a European

, in spite of the activism of the European Court

of Human Rights during the last thirty years.

(1 ) DOMESTIC COURTS AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS:

THE PROBLEM OF STANDARDS.

1. The different effects of the European Convention on domestic law.

The Convention is usually described as a fundamental step in the construction

of an efficient system for the protection of human rights in the international field. It has

been described, for instance, as “a landmark in the development of human rights

protection", and as a "qualified success"8. The reasons for this success are to be found,

more than in the substantive provisions of the Convention, in two specific characteristics

which concern its application. They are both well known: the possibility for individuals

under the jurisdiction of a contracting State to apply to the Convention bodies, according

to Article 25(1) ECHR9; and the homogeneous political context - Western Europe • in

which the Convention is in force10. These two facts can be therefore quoted as two real

causes for the success of the Convention11. However, they are mainly related to one

aspect of the Convention: its international dimension, that is, the Convention as an

international agreement.

As is well known, the typical effect of the Convention - as applied by the

European Court decisions - is to generate an international responsibility for the State

which has violated any of the guaranteed rights of the Convention. This so-called

is perhaps the Convention's best known, and doubtless its most celebrated,

feature. However, it poses a number of questions which have not yet received a definitive

answer. The principal problem is that, according to the Convention system, the judgment

of the European Court is only declaratory, that is, it is not a review of any domestic court

decision. The problem derives from the fact that, due to the rule of exhaustion of

domestic remedies before reaching Strasbourg bodies, the domestic court decision very

often exists. If the European Court judgment is not a review of the domestic decision,

how can the respondent State comply with its obligations under the Convention?

9 Article 25(1) ECHR reads as follows: "The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognizes the competence of the Commission to receive such petitions. Those of the High contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right'. The role played by the individual applications has been rightly qualified as th e key to the effectiveness of the Convention on the international level' (Jacobs, 1975:274)

10 Comparing the real effectiveness of the Convention with that of the United Nations Covenant on Civil and Political Rights, it has been stated that "It is in this, above all, that the advantage of a regional system is plain. The Convention speaks with a European voice, and governments may be more ready to listen to such a voice, representing a relatively homogeneous and like minded group of states with shared values, than would be the case in a wider or universal system. Much evidence of this has been provided by the various universal systems of protection already in force*

(Jacobs, 1975:275-76).

11 Other factors can be quoted to this end, such as the important contribution made by the Convention and its bodies in implementing human rights as a real criterion of foreign policy to be followed by the m em ber states of the Council of Europe; see, in this sense, Fawcett, J. (1987b) ■Algunas luces sobre los derechos humanos', in Revista Genera! del Derecho 522, pages 1077-87 at 1078.

how can the respondent State comply with its obligations under the Convention?

Although it is the responsibility of each State to find a solution to this problem (according

to its domestic legal order), the solution provided by the Convention does not go beyond

the

friendly settlement

that the Commission is obliged to pursue, by virtue of Article

28(1 )(b) ECHR12 or the

just (economic) compensation

established in Article 50

ECHR13.

However, besides this “direct effect", there is an

indirect effect ot

the Convention.

It regards the application of the Convention by domestic courts (notwithstanding with the

possibility of eventually take the case to Strasbourg, which always remains open for the

individual). Furthermore, the Convention can be said to have a dual nature, with both an

international and a internal or domestic side to it. It should be stated that one other facet

of its success is due to the domestic sphere of the contracting states.

This thefeore implies that the contracting states have two ways of understanding

the Convention: that is to say, as an international agreement it establishes some

international obligations for the State, whereas, to the extent to which it has any influence

on the domestic juridical order, it can shape the domestic rules on human rights which

can thereby be protected in a number of ways. This “ambivalence"14 of the Convention

makes it possible to measure its role both in the international and the domestic field.

The word

ttimpactw

has been used in a broad way to describe the different

manners in which the member states can be influenced by the Convention. Five

indicators of this influence were described in what was probably the first use of the word

(1) D

C

ECHR.

. T

ECHR

12 Article 28(1) (b) ECHR reads as follows: "In the event of the Commission accepting a petition referred to it (..) it shall (..) place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in this Convention".

13 Article 50 ECHR reads that "if the Court finds that a decision or a measure taken by legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction for the injured party".

14 The term ("ambivalencia") is used by Carrillo Salcedo, J. A (1982) in Actes du cinqueme

eolio que international sur la Convention des Droits de l’homme. Conseil de f’Europe Paris:A.

im p a c t

in this sense15. Later, the concept of

was used to describe the

influence of the Convention in the draft process, the application, the interpretation and

the amendment of the existing law in the contracting states16. As well as this, a recent

case-study analyzes new sources for describing the

of the Convention in selected

countries17. From all these studies it is clear that the domestic impact of the

Convention is varied and wide. Notwithstanding the usefulness of the broad concept of

the impact, only one kind of indirect effect of the Convention will be considered in this

paper; the impact the Convention can have on domestic courts in deciding domestic law

According to the first studies on the application of the Convention by domestic

courts, this type of impact was only possible once the Convention had been

incorporated into domestic law. Incorporation was seen as a prerequisite for domestic

application19. The incorporation of the Convention is another of the issues which the

Convention itself leaves to be decided by each state. In spite of some early studies

15 The following indicators were suggested: the extent to which the Convention stimulates changes of national legislation within the countries of the Council of Europe because of a decision of the European Commission or of a judgment of the European Court of Human rights; th e extent to which these changes occur without any prior decision of the Commission or any judgm ent of the Court; the extent to which the Convention has been incorporated into the domestic Law within the contracting states; the extent to which it has been applied by domestic Courts; and the extent to which it is known by the peoples of the member states (Morrisson, 1967:87).

16 Jacobs (1975:277)

17 Five accounts of the impact of the Convention in Scandinavian countries have been proposed: the theoretical point of departure as to the rules governing the relationship between international taw and domestic law, the impact of the Convention in the legislative process, the application by domestic courts and other domestic bodies, a comparative perspective with other m em ber states and the official governments’ view as has been put forward in the proceedings before the European Court and Commission on Human Rights. See Jensen, S. (1991)

The impact of the

European Convention on Human Rights on Domestic Scandinavian Law. A Case-Law

study,

18 As to the indicators which will

not be analyzed here, several cases of changes in national

(1991 '.passing.

19 See Beddard, R (1967) T h e status of the European Convention on Human Rights in domestic law* in

international and Comparative Law Quarterly 16 p. 206-17

which concluded that Article 13 ECHR obliged states to incorporate the Convention into

their domestic law20 and of the fact that the same conclusions can be drawn from the

tr a v o u x p r é p a r a to ir e s

of the Convention21, the European Court clearly stated in a early

decision that it is for each member state to decide if the Convention is to be

incorporated or not22. Moreover, the domestic incorporation of the Convention does

not seem to be a matter of great importance for the Council of Europe23.

Therefore, each State will decide whether to incorporate the Convention in

domestic law, or not: in those states which belong to a monistic tradition on international

law, the incorporation is automatically or quasi-automatically made by the official

publication of the Convention in the State’s Official Gazette; those states which appertain

to a dualistic tradition need a formal act of incorporation (generally a statute passed by

the Parliament) for the Convention to become domestic applicable law. Following this

traditional approach, still another issue must be considered: the status the Convention,

once incorporated, acquires within the domestic hierarchy of law, i.e., in the same

position as any other domestic statute or prevailing over them, or even at a constitutional

(1) D

C

ECHR.

1. T

ECHR

20 See, for instance, Susterhenn, A (1961) 'L’application de la Convention sur le plan du droit interne" in

La protection internationale des droits de ¡’homme dans le cadre européenne,

21 According to Mikkelsen, N. (1988) "The implementation in national law of the rights and freedoms embodied in the European Convention on Human Rights" in Danish Centerfor Human

Rights (1988)

The implementation in National Law of the European Convention on Human Rights,

Copenhagen:DCHR, pages 90-106 at 91, "All the deliberations lead to the conclusion that all States Parties should incorporate the Convention directly into national law at an early date'

22 The Court ruled in its decision in the case of the Swedish Engine Drivers’s Union v. Sweden, judgment of the European Court of Human Rights of 6 February 1976, in

Publications of the

European Court of Human Rights, series A n. 20, that neither Article 13, nor the Convention in

Case Law of the European Court of Human Rights, Dublin:The Round Hall Press, at 68.

23 Speaking for the official position of the Council of Europe, it has been ponted out that while this is a subject worth discussing by academics, judges and practicing lawyers on the domestic plane, it may not be that important, or even pertinent, in terms of discussions in Strasbourg"

[Drzemczewsw, A (1988) T h e Council of Europe's position" in

The Implementation., cit., pages

or quasi-constitutional rank24.

Notwithstanding the formal correctness of the above theory, a number of more

recent studies have taken a more realistic approach to the Convention’s indirect effect

on domestic courts. The most important finding of these studies is that the Convention

is frequently applied, in various forms, even in those countries where it has not been

incorporated into domestic law25 2

6

. And that, further, in those countries where it has

been, the way in which the Convention is applied by domestic courts does not depend

very much on the status the Convention holds within the domestic law hierarchy25.

Domestic courts have applied the Convention taking it principally as a source of law, in

the broad sense of the concept, or applying the Convention to interpret the domestic

provisions of the case27. In sum, the domestic application of the Convention seems to

be a matter of judicial policy, rather than a strictly formalistic question. The degree to

which each domestic court is open towards international or European arguments seems

to play a more important role that the legal issue of incorporation28.

24 See a review of the situation in the different member states of the Convention in Drzemczewski, A. (1983)

European Human Rights Convention in Domestic Law: A comparative Study,

[C

lapham

,

The privatization of Human

Rights, Florence:European University Institute, Ph.D. Thesis, at 13].

26 See, for the case of F rance, th e different approach followed by the Conseil dEtat and the Cour

de Cassation in C

Droits de f Homme en France. Dix ans cf application de la Convention Européenne des droits de

f Homme devant les jurisdictions judiciaires françaises, Strasbourg:Engel, pages 167-87, at 181 ff.

28 Legal incorporation, however, should not be underestimated, since it has a number of consequences. The principle one seems to be that in the states in which the Convention has not been incorporated a clear cut conflict between the Convention and domestic law is usually avoided, so domestic courts manage to reach a decision by the

interpretation of domestic law

(1)

ECHR.

1.

ECHR

2. Constitutional Interpretation and the European Convention.

Constitutional courts are among those domestic courts which frequently apply the

Convention in the above mentioned manner. Constitutional courts, by means of

constitutional adjudication, have the final word in the interpretation of the domestic

constitution provisions. Usually, they give the meaning of a constitutional provision either

to overrule a statute or to set up the constitutional interpretation to be given to it. When

the case in question is a case in which fundamental rights are involved, constitutional

courts may use the European Convention as a source to perform their task of

interpretation.

There are a number of reasons which are very likely to make the constitutional

courts sensitive to the Convention law: first, constitutional courts normally have the final

word in fundamental rights cases; second, their composition usually differs from that of

ordinary courts; and third, and perhaps most important, they must interpret constitutional

provisions, which are usually ambiguous, and are used to go to a very broad field or

sources to reach this interpretation.

The application by domestic constitutional courts of the European Convention on

Human Rights in this way leads however to several problems. Leaving aside, for the

moment, the formal problems (those that come from the domestic legal status given to

the Convention), it may be assumed that the Convention is applied to construe domestic

standards of fundamental rights protection. Despite the legal rank of the Convention (or,

as has been already said, despite even the fact that the Convention may not have been

incorporated into the domestic legal order), constitutional courts can apply it for the

interpretation of domestic constitutional provisions on fundamental rights. In so doing,

constitutional courts apply the European Convention as a kind of

as to

fundamental rights are involved. It may well be asked if this way of applying the

Convention as a source of constitutional adjudication is appropriate or not.

The main problem posed by this application of the Convention is the problem of

the standards of protection. In brief, the problem of the standards can be summarized

as follows: theoretically, the Convention sets up only a minimum standard on human

rights protection, that is, only the minimum which the states must fulfil to comply with the

Council of Europe requisites29. Where the Convention has situated the standard of

protection at the minimum, it may be that domestic provisions on human rights provide

for a higher level of protection. Clearly, under these circumstances domestic courts will

prefer the higher domestic standard and this will prevail over the Convention.

The real problem however, is that this clear conflict between a Convention and

a domestic provision very rarely exists. More frequently, there is not domestic standard

on the question and it is for the constitutional or supreme domestic court to construe it.

The reason for this is very simple: the cases in which there exist a previous clear

standard do not reach the constitutional court, since they can be easily decided by lower

courts and, besides, they do not pose any "constitutional question". This work, therefore,

will concentrate on cases concerning fundamental constitutional rights, taken before the

domestic constitutional court, in which the domestic constitutional court must construe

the meaning of a constitutional provision.

In such cases, as some studies have revealed30, domestic courts may use the

European Convention as a means of interpretation in several ways: as the main or only •

argument to grant the decision

as an additional (a

argument

or even as an

In any case, however, there is a possibility for the

Convention to be one of the arguments on which to decide on an alleged restriction of

a fundamental right. In other words, the Convention will be applied to define the

domestic standard of protection of the said right. Is this application of the Convention

appropriate?

The

of this paper is the following: it depends on the

consequences of the domestic court’s decision: if the judgment reverses the alleged

restriction on a fundamental right, then the Convention has been rightly applied. If the

decision, on the other hand, confirms the restriction, the application of the Convention

raises a number of problems: it may be assumed, as a starting point, that the

Convention should never be applied by domestic courts to confirm a restriction on a

29 The issue whether the Convention is really the minimum common standard is discussed below, see infra, section (2) of this chapter.

30 See Jensen (1991)

(1)

ECHR.

2 .Co n s t it u t io n a l in t e r p r e t a t io n a n d th e Eu r o p e a n Co n v e n t io n.

fundamental right. Clearly, it is correct to confront the alleged restriction with the

Convention standard, but only if as a result the domestic court decides that a violation

of the Convention, or of the domestic law interpreted according to the Convention, has

been made. In such a case, provided that the alleged restriction does not comply with

the Convention (that is, the minimum), it is clear that no additional argument is needed.

What happens, however, when the result of the review of the alleged restriction

before a domestic court is that the Convention (or, the domestic law interpreted

according to it) has

been violated? In this case, the domestic court must aim to

construe the domestic standard applying domestic sources: once the restriction has

passed the Strasbourg test, it must now pass the possibly higher domestic standard.

Previous research on the domestic case-law of one member state revealed that

the Convention was likely to be quoted by the domestic constitutional court when an

alleged restriction on a fundamental right was to be

by the court31. A

provisional conclusion on this must point out that if the Convention is applied as the

or as an a /b/T/or/argument to uphold a domestic restriction on a constitutional

right, it is clear that the domestic standards have been construed from the European

minimum, in spite of an independent construction of domestic sources by which a higher

standard of protection of the alleged violated constitutional right could have been

reached.

Two prerequisites are needed in order to make possible this application of the

Convention: first, that the standard of protection established by the Convention may be

lower than the standard attainable by only domestic means of interpretation32; and,

second, that domestic courts may in practice go to the Convention, despite its domestic

legal rank, to

a domestic restriction on a fundamental right. The second

31 See Jensen, S. and Rodriguez-Vergara Díaz, A (1993)"The European Convention on Human Rights in domestic law: A comparative study of the Convention’s position in Denmark and Spain" in

The Nordic Journal of International Law, forthcoming.

32 An important point, much discussed, is whether a concrete standard of protection of one right can really be said to be higher or lower than another, since the real issue would be always a balancing against other rights or social interests, so that a higher standard would simply mean that that one side of the balance has been more carefully weighted than the other. In this work, the question will be discussed when analyzing two of the comparative models proposed, namely the United States of America (see Chapter III) and the European Comunity (see Chapter IV).

argument, which has been discussed in general in section (1), will be analyzed in depth

in part III of the work, concerning a selected member state of the Council of Europe,

namely Spain. The question whether the Convention really provides for a standard of

protection lower than that of the domestic law will be discussed in the next section of this

Chapter.

(2) DOES THE CONVENTION REALLY PROVIDE A

S T A N D A R D ?

1. The Convention as a minimum: Article 60 ECHR.

It seems to be peacefully admitted that the intention of the drafters of the

Convention was only to set up a minimum common standard on the protection of human

rights for the countries of the Council of Europe. Three reasons can be given as an

explanation: first, the international character of the Convention; second, its aim to create

harmonization rather than to establish an uniform system; and third, the technical

problems which arose from the drafting process.

The international character of the Convention made the drafters follow the

traditional international law approach on human rights treaties; that is, the Convention

was considered as a subsidiary remedy, needed of restricted interpretation due to the

limitation of the state’s sovereignty which was involved. Moreover, the decision-making

process of public international law forced the member states of the Council of Europe

to include only those rights which were accepted by all the member states at that point

of time. Therefore, the rights embodied in the Convention were only those considered

essential for the task of the Council, i.e. for the integration of European democracies. In

the final analysis, only the most important and common fundamental rights were

included33.

Secondly, given that harmonization was the integrative goal pursued by the

33 This does not mean that the Convention was not understood as a transcendental step in the

international protection of human rights right from the start. Its more remarkable innovation,

however, was not the list of included rights, but the details about the restrictions allowed to them

and, above all, the control mechanisms established. Balanced against the protected rights, these

two later aspects included in a binding agreement as the Convention was, were seen as being

■novel and revolutionary

Council of Europe, the principal concern was the final result, i.e. respect for the

fundamental rights, and not the way the states would achive this. However, it should be

pointed out that harmonization could equally have been achieved by setting up a

m a x im u m

level of protection and leaving the states to choose the way by which this was

to be implemented: that is, the preference for harmonization, rather than for uniformation,

does not necessaryly imply that the minimum standard should have been chosen. It

would, therefore, appears that a precise technique of harmonization (it has been labelled

"harmonisation a effect minimum")34, was deliberately sought.

The third cause for a minimum standard outset concerns the divergences

between the common-law and the continental civil law systems, which may well have

posed some problems during the drafting of the Convention. The continental tradition

promoted a simple listing of the rights to be protected, whereas on the other hand, the

common-law tradition preferred a concrete definition of the rights, including the

restrictions permitted. Although the final balance of the Convention can be said to be

closer to the common-law technique35, the coexistence of two paragraphs referring to

the most important rights protected by the Convention, i.e. paragraph one which

describes the right and paragraph two which describes the restrictions permitted, would

lead us to conclude that in the final analysis a balanced approach was preferred36.

In any case, it is clear that, for whatever reasons, the initial intention of the

drafters of the Convention was only to define the minimum standard of protection. Let

us then turn first to the solution provided for the problem of standards by the Convention

system itself.

(2) A M

C

S

?

1. T

C

M

: A

60 ECHR.

34 *On pourrait, dans ces conditions, qualifier la Convention d’instrument d'harmonisation a effet minimum. Son objectif en tant que facteur d’unification juridique est atteint dans le mesure où les Etats contractants se conforment à ses exigences tout en ayant la faculté de rehausser, dans leur ordre juridique, le niveau de protection fixé par celle-ci." (Evrigenis,1978:351). Nonetheless, the author contrasts harmonization with uniformation, taking as an example of the latter the integrative techniques in private international law (ibid., at 350)

35 See in this regard Vitta, E. (1962)

L’integrazione europea (studio sulle analogie ed influenze

di diritto pubbfico interno negii istituti di integrazione europea), Milano:Giuffré, at 24

36 The two-paragraphs system is present in the rights embodied in Articles 7 (principle of nulla

pena sine legd), 8 (rights to privacy and family life), 9 (freedom of thought), 10 (freedom of