Strategic Litigation at the European Court of Human Rights: Q&A with Professor Robert Wintemute

Could you explain what strategic litigation is and why that is your chosen route?

“Yes, I suppose there may be two questions to answer. The first would be, What is ‘strategic litigation?’ and the second, Why would an academic get involved in it?’

“So, strategic litigation is really about test cases. Test cases are different to what we might call standard court cases.

“If your bank owes you £500 pounds, for example, and you take a case to County Court, that case is probably going to be pretty straightforward. The court will just apply past decisions, past precedents - there will be nothing new in the decision and it won't affect anyone but you.

“To bring a case under the European Convention on Human Rights, you need a real individual affected by the law. So, the ‘strategic’ part of strategic litigation is about finding a good case, with a good applicant. The ‘litigation’ part refers to the use of the courts. If you want to change the law, you can try and get a bill through parliament - that's a difficult process, especially when you are focused on minority issues, because there aren't many votes in them. So, the alternative is to go to the court and say, ‘There's a human rights principle involved here and the legislation that exists is wrong or discriminatory.’

“And then as to why an academic would get involved, a lot of academics in law haven't practiced, so they don't have the confidence to get involved in court procedures. But I practiced with a law firm in New York for five years, from 1982-87. So, I'd had this experience of strategic litigation in the US.”

In terms of this work, Karner v Austria was your first success. Can you talk us through that case?

“Yes, Siegmund Karner’s partner had died of AIDS in the mid-1990s. His partner’s name was on the lease of the rented property they shared and so the landlord sought to evict Mr Karner.

“Austria's housing legislation said that the ‘life partner’ of the tenant could remain in the property. So, this question went up to the Austrian Supreme Court: does a life partner include a same sex partner? Given the wording, there was no reason to exclude it, but the Supreme Court of Austria said, ‘No’. Back in the 1970s when this law was passed, they said, the parliament of Austria was not thinking about same-sex partners. They did not mean to include them. So, Karner lost the case and he was evicted.

“He took the case to the European Court of Human Rights. Sadly, he himself had died by the time it was heard, in 2003, and the question arose as to whether the Court should even rule on the case - they could have decided that the case was moot, or had been resolved. So, I gave his lawyers arguments as to why the Court should rule and those arguments were accepted and he won the case. That was the first decision on equal treatment of same-sex couples in 2003 and it was followed by the UK's highest court, the House of Lords, in 2004.

“But there was one missing piece in that judgment. It had been argued that the discrimination had affected Mr Karner’s family life. The Court, in Karner v Austria, said, ‘We don't need to rule on family life because his home was affected by the discrimination.’ They dodged the issue, in 2003, of whether a same-sex couple could be a family.

That recognition of family life came in 2010, with Schalk & Kopf v Austria. That case did not succeed with regard to same-sex marriage, but you returned to that question in 2015 with Oliari v Italy.

“Yes, by 2015 they couldn't avoid the question anymore because Italy had no marriage for same sex couples and no alternative.

“In 2015 we had just reached a bare majority in the Council of Europe – 51%. 24 out of the 47 Member States either offered marriage or some alternative to same-sex couples.

“The judgment came out on the 21st of July 2015. Matteo Renzi, the Italian Prime Minister, wanted to comply and he managed to get a law on civil unions passed in May 2016.

“I went to Rome Pride in June 2016 to celebrate this new law and the slogan of the Rome Pride that year was ‘He who is not content, continues to struggle.’ They were not happy because it wasn't called marriage and it didn't include joint adoption rights.

“I, however, was very happy. I said that this was a huge step forward for Italy, but at the same time the reasoning in the Oliari case was very strange. Of the seven judges at the European Court, you had three saying, ‘Our reasoning only applies to Italy,’ which is very unusual. They're interpreting a treaty, an international human rights treaty, that applies to 47 countries. So how can you say there's something so specific to Italy that the reasoning only applies there?

“By saying it specifically applies to Italy, their judgment did not transfer to Russia or Poland or Romania. So, we've had this uncertainty since then and there are now similar cases pending against Poland, Romania, Ukraine and Russia.

So you have participated in these cases in different ways?

“Yes, I suppose you could say there are three forms of participation. One is as the lawyer representing the complainant, that's the best position to be in because you get longer written arguments. You may be allowed 30 pages and at the hearing you get 30 minutes. As a friend of the court, you get 10 pages and generally you're not allowed to speak at the hearing. And then the third position is advising the lawyers in the case, who may or may not listen to you!

“Because of this period that I'd had in New York - and my own sort of impatience - I didn't want to wait for a random citation by practicing lawyers. I knew there was a way to get involved. And so that's why I started doing the work, and now I've been doing it for over 20 years.

There have been questions over the effectiveness of the European Court of Human Rights. Is obtaining a judgment there still a powerful tool for change?

"Well, the European Convention on Human Rights says that each country undertakes to abide by the final judgment of the Court in any case to which it is a party. They're supposed to comply with it.

“The judgment is sent to the Committee of Ministers or the Council, which is a political body consisting of representatives of the foreign ministries of 47 countries, and they keep asking every six months, ‘What are you doing? When are you going to implement this?’

“That process works pretty well on the whole, because the ultimate threat has been that if you don't comply with the judgment, you could be expelled from the Council of Europe. The only European country that's not a Member State of the Council of Europe is Belarus, which is considered a dictatorship. So that's a powerful incentive.

“But, unfortunately, the UK has thrown a spanner in the works because we lost a case in 2005 called Hirst - Hirst v United Kingdom - on prisoner voting.

“The European Court of Human Rights said, ‘You have to change the law, you have to allow some prisoners to vote.’ Tony Blair had two years to change the law - he sat on it. Gordon Brown had three years - nothing done. In 2010, David Cameron came in and said it made him physically ill to think of a prisoner voting. And then finally Teresa May did this fudge involving maybe 100 convicted criminals, who were actually not physically in prison – they were prisoners released on temporary licence or on home detention curfew. She presented it to the Council of Europe and said, ‘We've complied.’ And they said, ‘Yes, OK, that's fine,’ because they were fed up. It had been 12 years and they let us off the hook.

“So now we – the UK - have set this precedent for the other 46 countries. We have adopted an a la carte approach to the European Court of Human Rights. We accept the judgments we are happy with and the ones we don't like, we just ignore. Well, in Russia and Turkey, and some other countries, that a la carte approach has different results.

“The system is not perfect, but most governments still comply with most judgments.“

In terms of the overall narrative, I suppose, over 20-odd years has it been a process of waiting for these test cases and almost case-by-case and area-by-area trying to move towards a greater idea of equality. Is that a fair characterization of it?

“Yes, I think the way I would describe it is incremental change, with small steps.

“Part of the strategy is defining the case in a way that's winnable. As an example, with my very first case, on adoption, we stressed that this child would only have one legal parent, one father. There wouldn't be two fathers or two mothers. We made it easy for them.

“The European Convention system is voluntary, so if the European Court of Human Rights went for marriage in 47 countries tomorrow, many governments could say, ‘You've lost the plot, we're out of here.’ They could give notice and six months later they would cease to be parties to the Convention. So that's what they always have at the back of their minds. The Court has to go slowly, one step at a time, waiting for ‘European consensus’ to build.

And each success lays the groundwork for the next step? The right to family life, for example, must have then opened doors to other things.

“Yes, that's right, because if you're not a family, then it's justifiable to discriminate against you. They can say, ‘Well, they have rights because they are a family and you're not a family,’ so that was an important step.

“Getting a specific legal framework was another step, and then you will have cases about what that framework has to include, what rights. It will be a huge victory when we get that clearly established for 47 countries.