The Court’s dialogue with NGOs in S.A.S. v. France

The European Court of Human Right’s decision in the case S.A.S. v. France has been subject to substantial legal commentary. It was recently featured in the ASIL Insights, where the content of the judgment, the dissent as well as its implications were discussed. Earlier in July 2014 Professor Sytal Kalantry provided an analysis of the judgment, noting the fact that there were a number of non-governmental organizations (NGOs) that took part in the case as amici curiae. The case concerned the French law that prohibits the covering of the face in public. The Grand Chamber of the Court granted a leave to Amnesty International, Liberty, Open Society Justice Initiative (OSJI), Article 19 and the Human Rights Centre of Ghent University to submit amicus curiae briefs.

Image by Agência Brasil

Image by Agência Brasil

Currently, amicus curiae participants are commonplace in international tribunals. Amicus curiae submissions are a form of intervention by persons not party to the proceedings that involve presenting views on points of law or fact. This type of intervention in judicial proceedings has expanded from common law systems to countries with civil law traditions and to international adjudication. Article 36 of the European Convention on Human Rights and Fundamental Freedoms allows amicus curiae briefs from states, physical and legal persons and Council of Europe Commissioner for Human Rights.

In terms of organizations that acted as amici curiae in the S.A.S case, all NGOs, except the Human Rights Centre from Ghent University Law Faculty are repeat-players. They are veterans in this capacity and routinely submit briefs across a variety of tribunals. In fact, Amnesty International and Liberty are among the most active amici curiae before the European Court. Amnesty International is an active amicus curiae before a number of tribunals. In the past the organization submitted briefs before the European Court of Human Rights, the Inter-American Court of Human Rights, the International Criminal Tribunal for Rwanda and the International Criminal Court.

Liberty is one of the oldest amicus curiae before international tribunals. In fact, it was partly due to Liberty’s efforts that the ECtHR adopted amicus curiae participation procedure in the first place. On 21 March 1977, Cedric Thornberry, on behalf of the National Council for Civil Liberties (NCCL), founded in 1934 and later renamed into Liberty, inquired with the Registrar of the Court about the opportunity to intervene before the Court in relation to now famous Tyrer case. Liberty is one of oldest legal advocacy organizations in the United Kingdom. At the time of Tyrer’s request, it already had a rich history of defending civil rights through litigation. Although Thornberry’s request was rejected, the petition contributed to the Court’s decision to adopt the amicus curiae procedure.

OSJI is one of the most active amicus curiae in international tribunals. The organization has taken part as amici curiae in cases before the European Court of Human Rights, the Inter-American Court of Human Rights, and the International Tribunal for Rwanda.

Article 19 is an active amicus curiae. For instance, in the case of European Court of Human Rights case Sanoma Uitgevers B.V. v. The Netherlands (2010), Article 19 submitted a brief alongside many other organizations, including the OSJI.

The only relatively new amicus in the S.A.S. case is the Human Rights Centre of the Ghent University Faculty of Law. The Court’s Grand Chamber has recently accepted four amicus curiae briefs authored by the Centre.  Interestingly, the Centre’s submissions often are accompanied by the analysis presented to the wider public.

The Court’s acceptance of a brief from the University Centre builds on its tradition of accepting amicus briefs from universities. For instance, in R.R. v. Poland and A, B & C v. Ireland the European Court has accepted briefs from International Reproductive and Sexual Health Law Programme, University of Toronto, Canada.

In S.A.S. v. France the Grand Chamber engaged in a dialogue with amicus curiae interveners. The Court sometimes agreed and other times disagreed with the position of the amici. In para. 137 the Court disagreed with the presumption put forth by the applicant and some of the interveners, stating,

The Court  would first emphasize that the argument put forward by the applicant and some of the third-party  interveners, to the effect that the ban introduced by sections 1 to 3 of the Law of 11 October 2010 was based on the erroneous  supposition that the women concerned wore the full-face veil under duress, is not pertinent. It can be seen clearly from the explanatory memorandum accompanying the Bill (see paragraph 25 above) that it was not the principal aim of the ban to protect women against a practice, which was imposed on them or would be detrimental to them.

At the same time, in para. 147 the Court explicitly agreed with the proposition of the amici regarding the blanket ban, “It should furthermore be observed that a large number of actors, both international and national, in the field of fundamental rights protection have found a blanket ban to be disproportionate. This is the case, for example, of […] the non-governmental organizations such as the third-party interveners.” Furthermore, the Court followed up on evidence put forth by some of the amici in relation to Islamophobic remarks made during the drafting of the French ban. Yet, it disagreed with OSJI’s submission with regard to the existence of a wider European consensus against a ban on religious clothing.

S.A.S shows that the Tribunals engage in a dialogue with NGOs in relation to the issues that the latter raise in their amicus briefs. The dialogue is reflected in the judgments. Whether or not the Tribunal ultimately agrees with NGOs’ arguments, NGOs’ perspectives and their arguments are featured in the tribunals’ judgments, alongside the tribunals’ responses, foregrounding and focusing the attention of the audience on particular issues and arguments, while other potential arguments remain unexplored.

Moreover, the dialogue is a method that leads to the incremental expansion of international tribunals. Rather than only responding to the arguments raised by the litigating parties, the international tribunals’ judgments extensively reference issues raised by NGOs and reflect the courts’ dialogue with them. In this way, the jurisdiction of the court gradually encompasses a normative universe hitherto beyond its boundaries.



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