This guest post was written by Paul Harvey, a UK lawyer in the Registry of the European Court of Human Rights. This article is an edited version of a paper given at the European University Institute, Florence on 28 January 2015. The views expressed are personal. Comments are welcome at paulgharvey[at]gmail.com.
What constitutes an effective third party intervention before the European Court of Human Rights? Before answering that, it is necessary to make three preliminary points on what distinguishes the practice of the Strasbourg Court on third party interventions from other courts.
First, the Court has always had a comparatively liberal policy as regards granting leave to third party interveners. Second, since the third party interventions of Amnesty International and the German Government in Soering v. the United Kingdom in 1989, there have been well over a hundred significant interventions in Court’s cases. The Court has generally been well served by these interventions, though for reasons I shall come to, in some cases it has been less well served in recent years. Third, a survey of those interventions shows a striking range in both the types of interveners and the types of cases in which they have intervened. There have been broadly six types.
1. States exercising the right in Article 36(1) of the Convention to intervene in cases brought by one of their nationals against another Contracting State
This is something of an archaism, based on the traditional right of diplomatic protection. Perhaps for this reason States rarely avail themselves of the right: there have been less than a dozen such interventions in the Court’s history. Even more rarely has this type of intervention had any significant impact on the proceedings, though one notable exception is Germany’s intervention in Soering above.
2. Interventions by States when they have sought leave (rather than exercised the right) to do so
This commonly occurs when States consider their legal systems will be affected by the outcome of a case. These have included high profile interventions such as the interventions of the UK Government in Saadi v Italy (expulsion in terrorism cases) and ten governments in Lautsi and others v. Italy (crucifixes in Italian classrooms). Other than in high profile cases, these cases tend to involve issues of criminal procedure (for instance, the interventions of the UK, Irish and French Governments in Taxquet v. Belgium (the giving of reasons by juries) and the interventions of the UK, Irish and Maltese Governments in Kyprianou v. Cyprus (contempt of court).
A more recent trend is the practice of certain Governments to intervene when issues of public international law are at stake, where the Government quite properly intervenes to ensure that – as far as possible – the Convention is interpreted in accordance with international law (see, for instance, the UK Government’s intervention in Association SOS Attentats and de Boery v. France (immunity of foreign heads of state in criminal proceedings) and the French and Slovakian Government’s interventions in Stoll v. Switzerland (confidentiality of diplomatic communications).