European Court siding with the state – with emotion
An analysis by Laura Ervo, Professor of Law at Örebro University, has indicated that court judgements have increasingly displayed more understanding for the interests of the state, than those of private individuals seeking justice.
“I'm especially surprised at the emotions expressed in its judgements,” says Laura Ervo, who has used an unconventional method for tracking attitude changes.
Laura Ervo has chosen discourse analysis as the scientific methodology in the study of judgements by the European Court of Human Rights (ECtHR) in Strasbourg. The aim was to discern meanings which traditional legal dogmatism fails to discover.
It was a gut feeling that first raised her interest.
“I have studied European Court case law since the late eighties, and in the past ten-fifteen years I have observed changes in rhetoric and attitudes, which have occurred without anyone really noticing this. With discourse analysis I have now been able to demonstrate that this is indeed the case.”
The analysis, ‘The hidden meanings in the case law of the European Court for Human Rights’, has just been published in the official IASS-AIS journal, Semiotic.
Four ECtHR precedents
Laura Ervo has critically examined four precedents from the ECtHR. In the first, from 1997, she found wording that highlighted the individual's interests as a core value. This case involves anonymous witnesses and the opposing party in this case, a police officer, and as such a representative of the state, who indeed has rights, but which are subordinate to those of the individual.
However, that attitude has increasingly changed in judgements from 2006, 2010 and 2011. In these case samples, Laura Ervo has traced more and more language in which the court displays a growing interest, and understanding, for the state’s cause. All the cases concern men who are convicted of various crimes and who have brought their cases before the European Court of Human Rights.
In one case, that of a local drug dealer who had been forced to ingest emetics, the language conveys that the ECtHR does not find this illegal and the evidence inadmissible. Although the method was found to be inhumane in this case and therefore prohibited according to the European Convention on Human Rights, the semantics of the court’s ruling demonstrates a greater understanding for the interests of the state in investigating the original crime.
Gross felonies
The other two cases concerned more serious crimes, the first in which the police used the threat of violence, and in the other, a threatened witness escaped appearing in court. The convicted parties later appealed to the European Court of Human Rights. In these cases, Laura Ervo raises a long series of wordings, revealing an increasingly tough attitude towards the individuals seeking justice, while at the same time conceding more and more tolerance to the opposing party, the state. However, there is also a line of reasoning providing for a contrasting view and also ambiguous opinions in the Court's wordings.
Laura Ervo establishes that the ECtHR even expresses emotions, which is exceptionally uncommon in European courts.
A discourse analysis of procedural law is not entirely without controversy, although there is increasing interest.
“I am hoping that what I have succeeded in demonstrating here, will lead to more discussion and research, but also that the courts will consider their rhetoric. As it is, I believe this to be occurring more unconsciously than not,” concludes Laura Ervo.
Text: Maria Elisson
Translation: Jerry Gray
Photo: Örebro University