Luzius Wildhaber (1937-2020), President of the European Court of Human Rights: A Tribute

Luzius Wildhaber, who died on 21 July 2020, occupies a unique place in the history of the system of protection of human rights set up by the European Convention on Human Rights (“the Convention”). Elected to the European Court of Human Rights (“the Court”) in 1991, he served for the last years of the Court as set up by the Convention in its original form. The Court was then still part of a two-tier system with the European Commission of Human Rights (“the Commission”), with the latter operating as a filtering body. Only a limited number of cases were then being referred on to the Court either by the Commission or the State or States concerned. Protocol No. 9, which entered into force in October 1994, made it possible for applicants to bring their case to the Court where the respondent State had ratified the Protocol.

The Court at the time could be said to resemble a “gentlemen’s club” since, as Wildhaber had replaced a female judge, Denise Bindschedler-Robert, there remained only one woman on the Court, Elisabeth Palm from Sweden. But it was a club comprising some very eminent lawyers, whether judges, academics or practitioners. In this rarefied atmosphere Wildhaber thrived with his background in international law. He joined such distinguished international lawyers as Rudolf Bernhardt and Nicolas Valticos. Throughout these years he remained Professor of International Law at the University of Basel and from 1992 to 1994 he was Rector of the University. This was a characteristic of the “old” Court, whose members often pursued their judicial or academic careers concurrently with sitting on the Court. Certainly a feature of Wildhaber’s approach to Convention issues was a deep understanding of the way in which the international judge had to complement and not displace the national judge. He was a fervent supporter of the principle of subsidiarity at a time when its importance was not always recognised despite its longstanding status in the Courts’ jurisprudence.

In November 1998, Protocol No. 11 to the Convention entered into force substantially restructuring the Convention mechanism as originally envisaged. The full judicialisation of the system achieved by removing the optional nature of the right of individual petition and the jurisdiction of the Court, as well as by abolishing the adjudicative role of the Committee of Ministers, was accompanied by the replacement of the two-tier structure by a single full-time Court. This entailed the merger of two secretariats, the Court’s Registry and the Commission’s secretariat, each with a distinct culture and working methods, more used to looking at each other with a degree of, if not mistrust, rivalry. Their different working methods reflected their different roles within the Convention system, the Registry being used to assisting in the production of extensively reasoned judgments in respect of a relatively limited number of cases, while a major part of the Commission’s work was on inadmissibility decisions. The new body was called upon to combine the Commission’s filtering function with the adjudication on the merits of admissible cases.

The members of the new Court, elected in the course of 1998, came from both institutions as well as from non-Convention backgrounds. Ten judges had been judges on the old Court and ten from the former Commission, with nineteen with no direct experience of the Convention system (there were at the time 39 Contracting States). In July 1998, the Assembly of Judges Elect elected their future President; there were candidates from both pre-existing institutions, but it was Luzius Wildhaber who obtained the majority. It thus fell to him to preside over the continuing work of the Assembly of Judges Elect and then the new Court when it started operating in November 1998. Bringing the sometimes competing and diverse forces composing this body together to be forged into a coherent whole was not an easy task and required authoritative leadership. On the first day of its operation the Court took over an inherited backlog of over 7,000 cases. In its first year of operation its case-load rose by 40%. At the same time what were then known as the emerging democracies brought new challenges in terms of human rights complaints, not only as regards their volume, but also their gravity and the scale of their impact.

The Protocol No. 11 reform was largely motivated by the need to streamline the system so as to be able to cope with increasing case-load. Structural reform had first been evoked in the mid-1980s at a conference in Neuchâtel. In the ensuing disagreement between the proponents of an improved two-tier system and those who advocated a single body, it was the latter who won through. Instructions were given to the Steering Committee for Human Rights following the Vienna summit in 1993 and the Protocol was opened for signature in 1994. It is true that the preamble referred to “the urgent need to restructure the control machinery established by the Convention in order to maintain and improve the efficiency of its protection of human rights and fundamental freedoms, mainly in view of the increase in the number of applications and the growing membership of the Council of Europe”. However, it became clear very rapidly that the impact of the continuing enlargement of the Council of Europe had been underestimated. By the time the Protocol entered into force in 1998 this was evident to many and certainly recognised by the Court’s new President.

At the official opening of the judicial year in January 2000, some fourteen months after the new Court started functioning, his speech contained the following passage:

We have to focus on what the Convention is trying to achieve.  Are we seeking to cure individual ills for as many European citizens as possible or are we trying to establish a Europe-wide constitutional order of fundamental rights in which the citizen can obtain relief from his or her domestic system?  The answers to these questions should guide us in our reflection on how to approach the practical problems that confront the Convention system.  Depending on the answers, reform could take two possible directions, which are not, however, mutually exclusive.  One solution would aim to streamline further the system by for example allowing simpler formations of the Court to decide at the different stages of the proceedings.  The other avenue is to investigate in what ways it would be possible to raise the hurdle of admissibility so as to reduce the number of cases requiring judgment.

One thing is clear and that is that the key to the system will continue to be effective protection of fundamental rights at national level. We need national courts to apply the Convention – and the Court’s case-law – directly so that in the end only those issues that are still a matter of doubt in Convention law come through to Strasbourg – perhaps even at the instance of national courts.

Those few sentences framed the reform discussion over the following months and years. By the Rome conference in November 2000 to mark the fiftieth anniversary of the opening for signature of the Convention, President Wildhaber was openly calling for further reform of the Convention system and this initiative led to the setting up of the Evaluation Group and ultimately the drafting of Protocol No. 14, which was not to enter into force until after Wildhaber had left the Court. 

It is not always easy for Professors to make the transition from the world of academia to the daily work of judging the whole spectrum of cases that come before the Court but Luzius Wildhaber was recognised to be not just an eminent authority, but also a superb judge, with all that entails in the context of international human rights court. He was a master at achieving that difficult and delicate balance between the legal and the political and practical that judicial work at that level requires. His concern to make the system more effective was accompanied by a corresponding determination to maintain the Convention acquis. Efficiency gains were not to be at the expense of the quality of the Court’s judgments. He was also a keen supporter of case-law consistency.

Wildhaber was a judge who was inclined to tread cautiously. In the emblematic case of Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, ECHR 2005 IX) which concerned prisoners’ voting rights, he was part of the minority. Their dissenting opinion made clear their position: “We do not dispute that it is an important task for the Court to ensure that the rights guaranteed by the Convention system comply with ‘present-day conditions’, and that accordingly a “dynamic and evolutive” approach may in certain situations be justified. However, it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions. An ‘evolutive’ or ‘dynamic’ interpretation should have a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved”.

He was not a prolific writer of separate opinions, preferring wherever possible a collegiate approach. His separate opinions do however provide some indications about his approach to judicial matters. In Loizidou v. Turkey (no. 15318/89, Reports 1996-VI) concerning the Greek Cypriot’s applicant’s inability to access her property in Northern Cyprus, his concurring opinion was very much that of an expert of public international law, identifying the relationship between the right to self-determination and observance of international standards with respect of human rights and democracy. He concluded that where the modern right to self-determination did not strengthen or re-establish the human rights and democracy of all persons and groups involved, it could not be invoked to overcome the international community’s policy of non-recognition (in this case of the “TRNC”).

His profound belief in the importance of the principle of subsidiarity and corresponding respect for the margin of appreciation did not prevent him from expressing the minority view that there had been a violation of Article 8 where he considered that a fair balance had not been not struck between the interests at stake (Odièvre v. France, no. 42326/98, ECHR 2003-III). The French legislation prevented the applicant from obtaining disclosure of identifying information about her natural family. In fact, the minority found, under domestic law and practice no balancing of interests was possible; in practice the mother’s decision refusal to be identified constituted an absolute defence to any requests for information.

Luzius Wildhaber’s contribution to the Convention system was outstanding firstly as a jurist and a judge but also as the President of the new Court whose clear analysis of the many challenges facing it provided the basis for the further reforms and remains relevant today.

The day after his death the Court posted the following note on its website. “Those who worked with him remember him with great respect and affection. They will recall his humanity, his sense of humour, his culture and his endlessly enquiring mind.” That he is remembered in this way says much about who he was.