Discourse and style of judgments of the European Court of Human Rightsof Human Rights

For the purposes of the present study, the judgments of the European Court of Hu-man Rights are treated as an example of legal discourse. Maley has adopted a rather extensive definition of legal discourse, covering any sources of law, in which case the legal discourses are written texts, as well as pre-trial processes (spoken and written texts), trial processes (spoken texts) and recording and law-making (written texts)³⁷². Even fragments of judgments are treated as examples of discourse. As observed by Bengoetxea, discourse represents the context in which argumentation takes place, and justification occurs within a given discourse³⁷³. This may be an entire section of the judgment or a paragraph thereof. In the introduction, it is observed that the judicial discourse of the European Court of Human Rights – as an example of constitutional rights argumentation –entails some degree of general practical argumentation as well as subjective evaluative elements. In this section, the Court’s discourse is assessed in general terms in the light of both judgments and fragments thereof as communica-tive events as well as in the light of wider implications instead of the communicacommunica-tive events only, paying attention to other eventual elements of interpretation apart from the strictly legal arguments. Further, the context of interpretation may consist of both

372 Maley 1994, p. 16.

373 Bengoetxea 1993, p. 144.

internal and external elements, such as other provisions of the Convention and other instruments of international law and even existing standards in the States parties to the Convention. The Court may refer e.g. to a European consensus by means of carrying out comparison between the legislations of States parties instead of merely interpreting the Convention articles, and may resort to flexible reasoning. When assessing wider implications, even the wider historical context of constitutional protection of funda-mental rights and the international protection of human rights is on occasion used.

The judgments of the European Court of Human Rights are structured in general in a rather formalistic manner and usually include a description of the national proce-dure, the facts of the case, the applicable national law and Convention provisions, the parties’ statements, the dispositif i.e. a summary of the Court’s rulings on the alleged violations of the Convention, and any concurring or dissenting opinions of the indi-vidual judges³⁷⁴. The Court systematically provides an overview of its earlier case law expressing established meanings given to the provisions, followed by its application to the instant case. Thus, in its reasoning, the Court advances from general principles to conclusions in individual situations, thereby applying a method of deduction³⁷⁵. This method is easily identifiable in the judgments as the Court clearly separates the statement of general principles from their application to the case at hand. An overall analysis of the language used by the European Court of Human Rights reveals that despite that it could be criticised in some respect (for a lack of precision), the Court is rather transparent in its reasoning particularly as regards the application of case law.

It is to be admitted, however, that the Court tends to use repeatedly rather abstract expressions when reasoning its judgment with reference to prior case law. On the one hand, it may leave questions as to how exactly it has reached its conclusions and this makes the discourse analysis approach a challenge, but on the other hand, the idea of critical discourse analysis makes it possible to apply a flexible approach to the assess-ment of the Court’s arguassess-mentation. Thus, the idea is not to carry out a very detailed

374 According to Rule 74 of the Rules of Court, paragraph 1, a judgment as referred to in Articles 28, 42 and 44 of the Convention shall contain (a) the names of the President and the other judges constituting the Chamber or the Committee concerned, and the name of the Registrar or the Deputy Registrar; (b) the dates on which it was adopted and delivered;

(c) a description of the parties; (d) the names of the Agents, advocates or advisers of the parties; (e) an account of the procedure followed; (f) the facts of the case; (g) a summary of the submissions of the parties; (h) the reasons in point of law; (i) the operative provisions; (j) the decision, if any, in respect of costs; (k) the number of judges constituting the majority; (l) where appropriate, a statement as to which text is authentic. Further, according to paragraph 2, any judge who has taken part in the consideration of the case by a Chamber or by the Grand Chamber 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.

375 See e.g. Karhuvaara and Iltalehti v. Finland, judgment of 16 November 2004, §§ 37 to 42 for a statement of general principles, and §§ 43 to 55 for their application to the individual case.

discourse analysis, but to assess the signs of cultural change in the Court’s discourse as wider communicative events, which is why I have placed the method in the framework of critical discourse analysis which is interdisciplinary in nature. The signs of change looked for are nevertheless linguistic or textual elements.

In the view of Ruuskanen, the language used by the judiciary is for various reasons more objective than that used by other authorities, and elements traditionally attached to the judiciary include impartiality and objectivity. On occasion, however, courts may directly cite the language used by parties, in which case it may be characterised even by strong expressions of values and other subjective elements. Courts may also refrain from using the language of the parties, either in parts of the judgment or in the whole judgment, in which case the objective nature of the language is at its strongest.³⁷⁶ The European Court of Human Rights does refer to the arguments presented by the parties, but they are clearly separated from those of the Court. That practice makes the Court’s reasoning to appear particularly objective. As regards the general style of the Court’s judgments, one may note a change after the first few judgments. The first judgments follow the judicial style used by the French courts, whereas that strictly formalistic single-sentence form was abandoned in later ones³⁷⁷. In the view of Mer-rills, that change of the Court’s style of judgment has had a significant bearing on its ability to develop the law³⁷⁸. Although the main duty of the court is to decide cases before it, it may support its decisions with judgments which, if they are fully reasoned, may develop the law³⁷⁹. As observed by Merrills, poor reasoning of judgments would also create an obstacle to the acceptance of its reasoning by those using its judgments, whereas a good style improves acceptance³⁸⁰. One may indeed observe that there is significant development of law taking place through the case law of the European Court of Human Rights. One may note that in general, the judicial argumentation of the European Court of Human Rights appears to be rather persuasive, given that the Court uses affirmative statements of fact and law, on the basis of which conclusions are made. The judicial style is also clear. The receptiveness of the national jurisdictions to the Court’s discourse is affected not only by the capacity and preparedness of the

376 Ruuskanen 2006, p. 51-53.

377 See Lawless v. Ireland, judgment of 1 July 1961, Series A no. 3, compared with the Case ”re-lating to certain aspects of the laws on the use of languages in education in Belgium (Application n^o 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64) judgment of 23 July 1968, Series A No. 6.

378 Merrills 1993, p. 29. In the view of Merrills, there is a close relation between style and substance, and the single-sentence style, being cumbersome, makes it difficult to support a conclusion with different kinds of arguments. Thus, the new style has removed at least one of the obstacles to adequate reasoning. (Ibid.)

379 Merrills 1993, p. 35. The Court may even decide to go further and deliberately develop the law.

(Ibid.)

380 Merrills 1993, p. 30.

national jurisdictions to apply and interpret the case law, but also by the quality of the Court’s judgments.

The quality of judgments consists of different elements of discourse that together make them persuasive. Alexy defines legal discourse as a special case of general practi-cal discourse, where legal discourse and general practipracti-cal discourse are integrated³⁸¹. Legal discourse is usually persuasive by nature, where there is no uncertainty about the interpretation of the relevant provisions of law. However, where different outcomes would be possible, general practical discourse is needed to supplement legal discourse.

This is often the case with the judgments of the European Court of Human Rights.

It is interesting to see whether there are structural differences between legal discourse and general practical discourse. Nordman has compared the structure of Swedish legal language with that of ordinary language, and notes that there are in fact no huge differences between the two, although legal language perhaps uses more nouns and more relative and conditional clauses and inserted clauses than the ordinary one³⁸². Her findings would speak in favour of the concept of “special case” of Alexy. Bengoetxea also supports the idea of special case, but refines the thesis by suggesting that general discourse is only resorted to where specific legal arguments are not sufficient³⁸³. This is typical of legalistic traditions that underline legislation as the most relevant source of law. One may note that the facts of the case in the judgments of the European Court of Human Rights are clearly separated from the statement of law. In general, it is possible to find support for the view of Nordman also in these judgments as there are no major differences in the linguistic structures of the two sections of judgments, although language in the statements of facts is more flexible. In those parts of the judgments where the Court states the applicable Convention provisions and applies them to the case at hand, the reasoning appears to be somewhat more mechanic, which would represent the special case of ordinary language.

Bengoetxea further raises the question of whether the special case thesis could be applied to moral argumentation too, noting that this question is related to the larger question of the relationship between ethics and law. He appears to be of the view that moral discourse is a paradigm of general practical argumentation, and therefore

381 Alexy 1989, p. 212. Alexy justifies this definition with three grounds: 1) legal discussions are concerned with practical questions (what should or may be done or not done); 2) these questions are discussed under the claim to correctness; and 3) legal discussions take place under constraints, although he recognises that the special case thesis is open to attack on all three points.

382 Nordman 1984, p. 958, 963 and 964.

383 Bengoetxea 1993, p. 142. Bengoetxea refers to the case law of the European Court of Justice and notes that the Court appears to resort to legal justification in clear cases, but where legal argu-ments drawn from the clear text of the law are not sufficient to justify the judgment, other forms of argumentation are used to supplement them and the latter become legal by the mere fact of them being used in a judicial context. (Ibid. p. 143)

legal argumentation would also be a special case of moral argumentation.³⁸⁴ The main difference, in his view, between legal justification and moral justification is that legal justification is more context-bound, i.e. consist of reasons that fit in the legal system.³⁸⁵ Alexy considers that legal discourses are concerned with the justification of a special case of normative statements which express legal judgments, and draws a distinction between two aspects of justification: internal justification and external justification.

With internal justification, he means the question of whether an opinion follows logically from the premises adduced as justifying it, while external justification refers to the correctness of those premises.³⁸⁶ Alexy further divides external justification into six groups of rules and forms: 1) interpretation, 2) dogmatic argumentation, 3) use of precedents, 4) general practical reasoning, 5) empirical reasoning, and 6) the so-called special legal argument forms.³⁸⁷ The use of elements of internal justification and external justification, methods of interpretation and use of precedents in legal argumentation, as well as general practical (or moral) reasoning are looked into in respect of both the judgments of the European Court of Human Rights in section 3.4 and the judgments of the Finnish supreme jurisdiction in section 4.5 below. In the view of Merrills, the persuasiveness of a judgment is enhanced if a court can support its conclusion with cumulative reasons instead of resting the decision on a single point, and this technique is especially useful in cases where there are factual as well as legal issues and it is pos-sible to deal with both in the judgment³⁸⁸.

In general, it may be observed that the judgments of the European Court of Human Rights appear to contain both legal justification and moral justification, and one could say that moral argumentation particularly fits the context of human rights. For example, where the Court examines whether interference with the enjoyment of rights has been justified, legal argumentation can be traced in the judgments with the key words “based on law”, followed by moral justification expressed by the words “necessary in a demo-cratic society”. Whereas “based on law” expresses the condition that the interference must be allowed by the provisions of law (including the Convention), the expression

“necessary in a democratic society” is more value-bound³⁸⁹ and leaves more margin of

384 Bengoetxea 1993, p. 144, 145 and 147.

385 Bengoetxea 1993, p. 159.

386 Alexy 1989, p. 221.

387 A more simple division would be into: 1) statute, 2) dogmatics, 3) precedent, 4) reason, 5) facts, and 6) special legal argument forms. The latter include e.g. analogy, argumentum e contrario, ar-gumentum a fortiori, and arar-gumentum ad absurdum. See Alexy 1989, p. 231, 232 and 279.

388 Merrills 1993, p. 31.

389 Both legislation and international conventions may also contain other value-bound expressions such as ‘willful’, ‘reasonable’, ‘negligent’, ‘unconscionable’. Maley points out that in the drafting of legislation, deliberate flexibility is achieved by the use of such subjective terms, which provide judges with discretion to decide whether the relevant behavior was, in their judgment, ‘reasonable’, and so on, in the circumstances of the case. See Maley 1994, p. 27.

discretion for the Court to assess whether the interference was justified. In the light of the aforementioned argument of a special case, the judgments of the European Court of Human Rights are considered to constitute judicial or legal discourse instead of general one, which includes supplementing general practical reasoning. The aforementioned expressions denoting legal argumentation and moral justification appear practically in all judgments. Insofar as Alexy’s division into internal and external justification of legal arguments is concerned, a few observations may be made on the basis of the judg-ments of the European Court of Human Rights. In particular, an essential question is whether the case references, i.e. the precedents, should be rather considered internal justifications (normative statements) or external justifications for the provisions of the Convention which are clearly internal justifications for the judgment, and what would be the implications that follow for national legal systems. Alexy treats precedents as an example of external justification, which should make them rather easy for national judiciaries to receive. However, as appears from the foregoing, the Court has repeat-edly developed the meaning of the Convention provisions through its case law. Thus, there are clearly elements that only appear from the case law, which bring them closer to normative statements or internal justifications, although the case law is partly used to support the correctness of the interpretation of the Convention provisions. That conclusion also fits into the division made by discourse analysts into internal (verbal) context and a wider external context³⁹⁰. The wider context and external justifications require more subjective evaluation than internal rather objective justifications. Con-sidering that the Court’s judgments follow often even more clearly from prior case law than from the Convention provisions, in the case of the European Court of Human Rights, it would perhaps be more correct to state that the case references are part of legal discourse which are integrated with the arguments concerning Convention provisions through general practical discourse and principles of interpretation. Accordingly, the more national legal systems treat precedents purely as external justifications, the more difficult it may be for them to adapt to the argumentation of the European Court of Human Rights. This is also analysed in respect of the Finnish supreme jurisdictions.

As regards the manner in which the European Court of Human Rights applies precedents, the judicial style appears to be different from the traditional mechanic references in the Finnish case law, which is explained in detail in section 4.5 below.

However, some variation in the style may be detected when assessing the Court’s judgments as a whole. The case law of the European Court of Human Rights provides numerous examples of situations where the Court has integrated Convention provisions with statements of case law by means of discourse. On occasion, the Court even gives priority to case law, for example as follows:

390 See, in particular, Van Dijk 2009 and 2010 (see notes 54 and 55).

“According to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be strictly construed.

The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 41, and Nilsen and Johnsen v. Norway [GC], no 23118/93, § 43, ECHR 1999-VIII).”³⁹¹

In that paragraph, the Court thus provides the main rule in the light of its estab-lished case law (“According to the Court’s well-estabestab-lished case law …”) and makes it more precise with reference to the relevant Convention provision (“This freedom is subject to the exceptions set out in Article 10 § 2 …”), which is a clear example of using case law as an internal justification instead of an external one. Thus, the Court uses linguistic means to link those two elements of legal discourse. The Court’s case law also provides examples of situations where the Court fulfils the so-called rationality gap by means of external justifications, for example by criminal law principles and the principle of proportionality as follows:

“[…]In view of the margin of appreciation left to Contracting States a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007-..., Radio France and Others v.

France, no. 53984/00, § 40, ECHR 2004-II and Rumyana Ivanova v. Bulgaria, no. 36207/03, § 68, 14 February 2008).[…]”³⁹²

The Court thus also uses the margin of appreciation as a supporting justification for the possibility to set limits on the freedom of expression where the interference is carried out to provide a sanction in response to such expressions as fulfill the el-ements of defamation. The Court appears to link even external justifications with statements in its own case law, which is a means of increasing the legitimacy of the

The Court thus also uses the margin of appreciation as a supporting justification for the possibility to set limits on the freedom of expression where the interference is carried out to provide a sanction in response to such expressions as fulfill the el-ements of defamation. The Court appears to link even external justifications with statements in its own case law, which is a means of increasing the legitimacy of the