1. Introduction
In July 1969, the legal committee of a Dutch action group for military conscripts (the ‘vereniging voor dienstplichtige militairen’, VVDM) held an important meeting. On the agenda was an exciting new development surrounding the disciplinary punishment which affected many of its members. As the young conscripts were confronted with the strict world of military discipline, the legal committee had been on the lookout for potential solutions. In the meeting it would seem they had discovered one. ‘Please take a look at this: it’s about a possible trial in which the Treaty of Rome should kill off our military discipline’.Footnote 1 These words formed the beginning of remarkable legal development in which European human rights law took centre stage. After all, in the sixties, the ‘Treaty of Rome’ was the better known name for the European Convention on Human Rights.Footnote 2
The Article of the Convention on which the legal committee had placed its hopes was Article 6, containing the right to a fair trial. In particular the first part of Article 6 (1) was deemed essential: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law […]’.Footnote 3 Military discipline, in which offenses were dealt with by one’s own officer, seemed hardly to uphold these elements of ‘independent and impartial tribunal’.
There was but one problem with this Article, and with the Convention more generally: it had never been understood as being of relevance to the Dutch legal order (or that of any other signatory state). Little known and barely used, the Convention seemed destined to play a marginal role in the legal orders of the European signatory states.Footnote 4 Yet from this small military group, a development emerged which lay the groundwork for a veritable legal revolution: the ‘waking up’ of the European Court of Human Rights (the Court) in the mid seventies.
This change of the status of the Convention, from a dormant legal tool into a ‘constitutional document of the European public order’, forms a puzzle which has attracted quite some attention in recent years. For it is by now well established that the Convention – and the European Court of Human Rights – were never meant to play an active role in the first place.Footnote 5 The signatory states had made it clear that they were not keen to accept supranational human rights oversight, resulting in a careful two-tier system which left its most intrusive provisions, such as the right of individual petition and the jurisdiction of the Court, optional to the states.
To further complicate matters, the Court could only rule on cases if the institution of first instance, the European Commission on Human Rights (the Commission), declared a case admissible. Once the Commission had delivered its opinion on the content of the case, only it, or the State in question, could forward a case to the Court. However, this was a route the Commission, which was composed of individuals with close ties to the states in question and sensitive to state prerogatives, almost never took.Footnote 6 Instead, it sent cases to the Committee of Ministers, who rubberstamped the findings of the Commission. To go to Court therefore entailed ‘going through the eye of the needle that was the Commission’.Footnote 7
This resulted in a more or less inactive Court, dealing with roughly one case per year. Yet things began to change in the mid-seventies. Famously quiet in its first period, the Court had decided on roughly one to two cases every year, with 1968 being a particular busy year when three cases were decided. Yet from 1975 things began to move: the case load grew from six cases in 1976 to 18 in 1984 and 32 in 1987.Footnote 8
How did this happen? Clearly this was a multifaceted development, in which a general growth in human rights activism in the seventies to détente in the Cold War all played a part. Yet most explanations for this change have focused on the crucial role of the Court itself. In particular the seminal case of Tyrer v. UK is usually seen as the beginning of this transformation.Footnote 9 In Tyrer, the Court labeled the Convention a ‘living instrument’ and in doing so opened the way for a new, more active, legalistic reading of the Convention. In this light, Mikael Rask Madsen has shown how the Court benefitted from a strategy which had increased its legal authority over the years. Following a period of ‘legal diplomacy’, characterised by a very restrictive reading of the Convention, the Court and Commission had in fact built up trust of the states of the Council of Europe, which allowed the Court to embrace a more dynamic interpretation of the Convention.Footnote 10
Yet clearly, the Court did not act in splendid isolation, nor was it a solitary prime mover. Madsen has rightly noted that in order to understand the transformation of the Court in the seventies, one has to look at the ‘structural connection between the agency of the Court and its surroundings’.Footnote 11 Ed Bates has, in his leading book on the evolution of the Convention, identified several other important elements to explain the growth of cases before the Court, such as the fact that in the mid-seventies all the Member States of the Council of Europe had in fact ratified the Convention. Also, the optional clauses were becoming more commonly accepted, with 13 of the 18 states accepting both the right of individual petition and the jurisdiction of the Court. Moreover, the 1970s saw an upsurge in human rights in general, illustrated by the fact that also the European Economic Community (EEC) turned to rights protection in this period.Footnote 12
This article builds on these works yet takes a different approach. Using a historical method, it brings in new sources and sensitivities to the story, which allows it to make two main innovations to these findings. First, it moves away from the dominant Court-centered focus by adopting a bottom-up perspective and highlighting how individual plaintiffs made the choice to use European law. In doing so, it draws on recent studies highlighting the crucial importance of individual actors in (strategically) shaping European legal developments from below, in particular those of Lavrysen and Van Rossum.Footnote 13 Crucially, by bringing in historical specificity, it can be shown that these actors drew on a new meaning of the Convention, which moved distinctly away from the intent of its drafters. The article sets out the motives, strategies and challenges which led people to move cases into the European sphere, in a contingent and context specific way – which is missed when focusing solely on the Court or the European institutional sphere.
Second, by focusing on previously unused archival material, it argues that the Committee of Ministers, and therefore the states themselves, played a forgotten, but important role in activating the court. The key point it adds to the explanations of Bates and Madsen in this regard is that states not merely adopted the optional clauses or otherwise grew more accommodating of the Court, but also attempted to change the referral policy of the Commission – a vital element for cases to reach the Court in the first place. This is illustrated by a campaign instigated by the Dutch government which aimed for the Commission to send contentious cases no longer to the Ministers, as had been standing practice, but to the Court instead. As such, it reinforces Madsen’s socio-legal reading of how the Convention offered ‘cold blooded law’ in response to political conflict – yet adds historical detail and new, more differentiated ways of understanding that development.Footnote 14
This paper highlights that both dimensions, namely grassroots activism and increased usage of human rights law, on the one hand, and political tensions in the Committee of Ministers, on the other hand, are of crucial importance for understanding the human rights revolution which took place in Strasbourg in the late seventies. Before the Court could embark on its interpretative revolution, it was provided with a very clear window of opportunity to do so by the states themselves. On their part, the states were spurred on by a rise of individual complaints. The Convention was thus made into a ‘living instrument’ not merely by the actions of the Court, but by a myriad of actors, most of which have remained under the radar. In the process, the Court became seen in a new light. From irrelevant to individuals or threatening to states, the Court emerged as a solution for domestic troubles and political tensions within the Committee of Ministers.
To shed new light on these two elements, the article uses a variety of archival records, most of which have been consulted for the first time. To allow for insight into the grassroots activism, the archive of the action group from which the complaint originated, the VVDM, has been studied.Footnote 15 This archival research is complemented by an interview with key academic Evert Alkema.Footnote 16 The debates in the Committee of Ministers are examined by using archives from the relevant Dutch ministries, namely the Ministry of Foreign Affairs and the Ministry of Justice.Footnote 17 While focused on the Netherlands, these records allow an insight into the room where the ministers found themselves debating their role in human rights protection and ensuing negotiations in the backrooms, as well as to the frustrations and follow-ups.
This article proceeds as follows. First, in Sections 2 and 3, it sets out how the case emerged by uncovering the intersection of legal activism with academia, and highlights the role of one key figure therein, namely young academic Evert Alkema. Second, in Sections 4 and 5, it turns to how the case was received on the European level, where a new set of actors, namely the civil servants, governmental elites and diplomats became involved. It ends by highlighting in Sections 6 and 7 how the case intertwined with other cases surrounding Article 6 of the Convention and became part of a political struggle over the role of the Committee of Ministers. As the governments became aware of the adverse consequences this could have, the solution was found in a neutral body, the European Court of Human Rights, thereby setting the stage for its activation in the years afterwards.
2. Launching a complaint
The complaint of the soldiers cannot be seen in isolation from broader changes in Dutch society. As in most of the world, the Netherlands was caught in a fundamental upheaval in the late sixties. From a conservative nation clinging on to the last vestiges of its colonial empire emerged a self-styled ‘guiding nation’ on progressive themes.Footnote 18 Driven by the erosion of traditional authorities, secularisation, the second feminist wave and student demonstrations, the sixties witnessed the so-called ‘depillarization’ of Dutch society. This entailed the transition from a society divided along predominantly religious lines (the so called ‘pillars’, protestant, catholic, socialist or liberal), to group formation around shared values, which people could freely opt into.Footnote 19
One part of this change was the rise of voicing claims for justice in a distinct language, namely that of human rights. This was a vocabulary accessible to all, focusing on a presumed apolitical individual suffering. Precisely this apolitical character made for a great tool to incorporate the new activism of the sixties. Human rights provided a way of transcending the binary Cold War division and could thus serve as a new way of individual action, for instance by the writing of letters to political prisoners.Footnote 20 It also was remarkably well-suited to the Dutch context, where new social groups were now formed on the basis of abstract shared values. Human rights soon became a hugely popular societal cause. Indeed, the Netherlands was an early adapter in this human rights activism. Amnesty International, for instance, was remarkably successful in the Netherlands, hosting the largest national section in both absolute and relative terms in the early seventies. When it was awarded the Nobel Prize in 1977, one in five members could be found in the Netherlands.Footnote 21
The VVDM fits neatly in this new line of societal engagement. In many ways, it was a forum which facilitated the clash between the old world of authority and the rejection thereof by the young conscripts. As soldiers went into service with long hair and were confronted with the razor-sharp military discipline, they established the VVDM as a go-to forum concerning all matters relating to the mandatory service. But it was more than just a mere action group. With the creation of a legal committee, the VVDM focused on using the law in this clash.Footnote 22
Although this turn to the law was more broadly shared by action groups at the time, the turn to European law was far from self-evident. As has been stressed, the Convention was barely known in the legal world, seriously hampering its usefulness in procedures. So how did the members of the VVDM stumble across its provisions? Of key importance was that the soldiers, being former students, had already encountered the Convention in their studies at the Universities of Leiden, Groningen and Amsterdam. There, the so-called ‘Europe institutes’ had recently been established where the Convention was taught alongside European law more generally, usually in a distinctly pro-European way. It is indicative as to the close connection between the two realms of law.Footnote 23 The Convention and EC law were, in other words, part of the same legal ecosystem of ‘European law’. This education may have been basic, but it entailed that members of the judicial committee of the VVDM were aware of the Convention and convinced of its potential to create change – arguably more so than those practising law at the time.
Soon the committee began to receive requests for legal aid, most of revolving around the nature of administrative punishment. To be judged by one’s own officer did not seem to fit the bill of the need for an ‘independent judge’. Here, the judicial committee saw an opportunity to test the discipline against Article 5 and 6 of the Convention: were the soldiers being deprived of their liberty in a fair trial? This was the question animating the entire procedure.Footnote 24
3. Turning to the Convention
With the Convention, the legal committee thought they had found a perfect hook upon which to base their complaints. Even though legal precedent offered little hope, military discipline would be ‘in violation of the spirit of the Treaty of Rome, which holds supremacy over the national law via Article 65 and 66 of the Constitution’.Footnote 25 From the start, the idea in the judicial committee was clear: to exhaust all domestic remedies and then get principled cases into Strasbourg.Footnote 26
The next step was to find appropriate cases: some of the members of the VVDM volunteered to orchestrate situations which would lead to punishments. Cornelis Engel, for example, deliberately called in sick to attend a VVDM meeting; other cases were actively ‘scouted’ for their promise.Footnote 27 In the end, Engel and four other soldiers, namely Gerrit Jan de Wit, Peter van der Wiel, Johannes Dona and Willem Schul were found to be willing participants in the attempt to go to Strasbourg, having committed offenses as diverse as publishing a critical piece on their superiors to ‘driving a jeep in an irresponsible manner over uneven territory’.Footnote 28
Still, the road to Strasbourg was a novelty, which posed plenty of questions to those aiming to take it. When cases surrounding disciplinary sanctions started to emerge in the national news, the VVDM was contacted by a young academic from the European institute in Leiden, Evert Alkema.Footnote 29 Alkema had been among those teaching on the Convention and had developed a keen interest in its development. One of the board members of the VVDM had in fact been a student of his, making contact easy to establish.Footnote 30
Alkema approached the board with a proposal: ‘if you are serious about those human rights, you have to go to Strasbourg. And I would be willing to help’.Footnote 31 This help turned out to be substantial, from helping on legal questions to giving guidelines on admissibility. The sociologist Wibo van Rossum has argued that Alkema’s intervention was vital to the success of the case: ‘the Engel case was thus carefully constructed or maybe one should say ‘orchestrated’ by academia, more specifically by one academic’.Footnote 32
This was barely an overstatement. Alkema became a key figure in the early discovery of the Convention in the process. For Alkema, human rights as enshrined in the Convention served to ‘right the wrongs of the Second World War’ and the inactivity of the Court was lamentable – a feeling he shared with the Dutch judge at the Court, whom he stood in direct contact with.Footnote 33 To change this legal insignificance of the Convention became a leading motivation in Alkema’s life. This was reflected in his teaching: in his classes, he put forward a strong interpretation of what the Convention could do. Beyond his academic interest, Alkema coached several cases to Strasbourg, beginning with the case of the VVDM.Footnote 34 The motivation to lend a hand to potential plaintiffs was, first and foremost, a desire to prime the pump of the system of the Convention.Footnote 35 His actions were a conscious attempt to get the system moving, producing case law, and trying to get the European Court involved. By getting cases to Strasbourg and involving the Court, a more authoritative international system could be built, or so was his conviction.
In this mission, he found a friendly counterpart in Strasbourg, where he entertained a close relationship with head of the legal service, Anthony McNulty.Footnote 36 With him, Alkema could test the waters and see whether complaints would be feasible. Those contacts between the national and European level helped tremendously in getting insight into what could be deemed applicable by the Commission and what could not.Footnote 37 With a positive reply from McNulty on the feasibility of the soldiers’ complaint, things went according to plan as far as the VVDM and Alkema were concerned. As the cases, three in total, were directed into Europe, the contacts of Alkema in the Council of Europe ensured the admissibility criteria had been carefully taken into consideration. It was a peculiar novelty: grievances which had usually been dealt with on a national level had been translated, first into law and second, into European law. Along the way, they focused on what European law should mean, and then ended up changing what it meant.
4. Engel on the European level
‘Soldiers file complaint at European Court’, major newspaper De Volkskrant noted in 1971.Footnote 38 The step to Strasbourg was a remarkable one after all. However, despite the novelty, press coverage remained minimal and factual.Footnote 39 This was no high-stakes case which attracted a lot of public attention. The case moved slowly through the grinds of the system. it would take until 1972 before the cases were declared admissible, 1974 before the Commission gave its report, and until 1976 before the ruling of the Court, leaving the plaintiffs wondering on occasion what was going on.
This lack of public awareness did not spell the end of the story. For with the change of the national to the European sphere, a new set of actors became involved in the case. As the individual plaintiffs slowly moved to the background and awaited the decision, in this institutional European setting, governmental officials and civil servants became more relevant. In this context, the struggle over the meaning of Article 6 entered a new stage, as the Article got drawn into a debate on who should take centre-stage in its interpretation. Moreover, it was precisely this governmental engagement that transformed the case into something much more than just an individual test-case.
This section argues that governmental interest in elements of this case was crucial for an emerging discussion on the system of the Convention as a whole. It shows how and why the Dutch government – propelled by the case of Engel – launched a campaign to change how the European system as such worked. This campaign went far beyond the content of the case and instead to the heart of how human rights were protected in the European context.
The mere fact that the Dutch government showed any interest in the functioning of the Convention did not come out of the blue. Over the course of the sixties, decolonisation had caused the Dutch foreign policy to go through a profound transformation. As the transfer of sovereignty over New Guinea to Indonesia in 1962 entailed the end of the Dutch Empire in the East, the Netherlands thought itself diminished from an Empire to the status of a ‘small state’ ranking alongside Denmark.Footnote 40 This development had its bearing on foreign policy, which shifted into a more idealistic direction focusing more on ‘right’ than ‘might’. The Convention formed an important part of this shift. For instance, two years earlier in 1969, the government had publicly embraced European human rights by joining an interstate complaint against Greece.Footnote 41 As such, further development of the Convention was explicitly seen as a desirable political aim.Footnote 42
More specific to the case of Engel, Alkema had carefully deliberated with some of his contacts within the government to make sure the topic of the case wasn’t something government would strongly resist.Footnote 43 If the government resisted, it would be practically impossible to get a case through to the Court. However, having heard also the government itself had its doubts as to the military discipline, this was deemed a safe case by Alkema without too much at stake.
What was remarkable however, was the zeal with which the Dutch state itself embraced the case. For the government had three options when confronted with the case. The first was to push the Commission to declare it inadmissible. Second, the government could detach itself and allow the Commission to decide in peace. Yet the government chose a remarkable third option. Initiated by the progressive Minister of Justice, Dries van Agt of the Christian Democrat Party, the government opted for something new. It proposed asking a question to the Court, under Article 1 of the second protocol of the Convention.Footnote 44 The question for the Court was if it could define the meaning of ‘criminal charge’ in Article 6, and whether the military disciplinary detention fell under Article 5 of the Convention.Footnote 45
The second protocol was a peculiar thing. It had been the result of a previous campaign by and for the Court to become more relevant and create a ‘preliminary ruling procedure’ much like the one existed in the EC, and allowed the Court to give advisory opinions on the Convention.Footnote 46 It was also an initiative which had swiftly been disarmed by the governments. Frankly, these opinions of the Court were not meant to ever be given. As a result, requirements were very strict. First of all, it required a two-third majority in the Committee of Ministers to ask a question. If that wasn’t enough of a deterrent, the prohibition to go into the ‘content or scope of the rights or freedoms defined in Section 2 of the ConventionFootnote 47 […] or with any other question which the Commission, the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention’ made sure any such advice would be extremely difficult (indeed almost impossible) to come by.Footnote 48
To ask the Court such a question was therefore a novelty. The particular move was spurred on by domestic concerns. The issue of the case, military disciplinary, was a lively matter of debate in Dutch Parliament, as in early 1971 a new law was being drafted to accommodate growing critique. However, this legislation now lay under the shadow of this particular procedure: a Judgement of the Court would help clarify the potential obligations the Dutch legislature had to take into account. This was one of the reasons why Van Agt was in favour of such an active engagement with the system of the Convention. Another reason was a desire to change this restrictive system. As the Dutch representative in the Council of Europe would note: ‘there is a risk, in the very small possibilities of the protocol. It seems as if a somewhat narrow interpretation of Article 1 would take away the meaning of the whole procedure by which the opinion of the Court can be asked. This certainly would make no sense’.Footnote 49
The problem, however, was that it did make sense. For while Van Agt’s initiative was spurred on by domestic political considerations and a desire to change the system, his reasoning was not shared by Willem Riphagen, the legal advisor at the Ministry of Foreign Affairs on these matters and professor at the Erasmus University in Rotterdam.Footnote 50 It was a clash of legal interpretation: Riphagen had been the Dutch delegate when the Convention and protocol were drafted and therefore based his understanding of the Convention on its original intent – which he had been a part of defining. To him it was clear that the protocol had been set up precisely to limit the potential influence of the Court. To go in another direction would not be feasible: the proposed questions were clearly situated in the first section of the Convention (meaning they dealt with individual rights) and were therefore not admissible. Moreover, they dealt with issues which would come up in a procedure before the Commission, leaving Riphagen adamant that there was no realistic chance the questions would ever be admissible.Footnote 51
Yet he was overruled: after all, the aim Van Agt was precisely to change this restrictive original interpretation. In response to the troubles which had arisen in the drafting of the law, the opinion of the Court would ease the domestic decision-making, or so it was believed.Footnote 52 Before the Court could answer however, the Dutch government had to convince the Committee of Ministers of the merits of the question. Here, the Ministry of Justice saw a possibility. Putting the issue before the Committee, the Dutch representative noted how military discipline was a matter of concern for all Member States. Moreover, shouldn’t the Court, rather than the political Committee of Ministers, ultimately be the judge of its competence under the second protocol?Footnote 53
When the other states in the Committee reacted, it became clear there was no hope for the initiative. The Italian representative noted the obvious: the questions on the content of the Convention were clearly inadmissible as they went into individual rights as such, and other Member States were equally dismissive of the Dutch plan. The argumentation that this interpretation made the second protocol a dead letter was deemed unconvincing: it was meant to be just that. ‘Any further argumentation turned hopeless’, the Dutch representative noted.Footnote 54 The proposal was voted out and the first attempt ever to receive an advisory opinion of the Court had convincingly failed. For the Dutch Ministry of Foreign Affairs, this was a rather embarrassing show.
Yet the importance of the initiative lay elsewhere. Using the Court as a potential answer to domestic political problems was distinctively new. The institution had deliberately been kept on the side-lines for years, being perceived as a threat to national sovereignty. Thus, the story also tells us about a change in perception of the Court: breaking with the traditional restraint in the Committee, the Netherlands tried to get things moving within the set-up of the Convention. It was a sign of a new appreciation of the European Court: from a threat to sovereignty, it began to emerge as a potentially useful problem-solver.
The Dutch action was a first attempt to get things moving via the Committee of Ministers. The problem was, however, that this attempt was developed via the second protocol, which formed a formidable barrier due to its restrictive wording. Yet the Dutch ambition to activate the Court did not end here. A second attempt would be broader in its ambition and aim at a more substantive change in the procedure of the Convention.
5. Scheichelbauer and the emergence of political conflict in the Committee of Ministers
For Engel was only one of the cases which were brought before the Commission. In Strasbourg, it intersected with another stream of cases related to Article 6, which emerged from Austria during the late sixties and early seventies.Footnote 55 These cases, Scheichelbauer v. Austria, Huber v. Austria and Neumeister v. Austria, are not generally remembered as monumental cases in the history of the Convention. Yet their importance does not consist of the legal precedents they set. Rather, this section shows that these cases stood at the basis of apolitical conflict within the Committee of Ministers on the meaning of Article 6. As the case of Engel was swept along in those discussions, it is vital to understand these dynamics as they impacted the entirety of the system, leading to a campaign to change the referral policy of the Commission.
The Austrian predominance in these cases on Article 6 has been explained from a systemic flaw in the Austrian legal system relating to procedural justice and length of procedure. The Austrian system did not allow for complaints about excessive lengths of proceedings on the national level, an absence which left plaintiffs either powerless or with the European route as only viable alternative.Footnote 56
One of these cases to come out of this situation was the – at first sight – inconspicuous case of Scheichelbauer v. Austria of 1969.Footnote 57 At the centre of the case stood the question of whether voice recordings made in collaboration with the police, without the knowledge of the person, could be used in court. The Commission had found no violation but was divided. Seven members thought the practice admissible, while four, including the Dutch member, found that it entailed a violation of the Convention. In line with the usual referral policy, the report was sent to the Committee of Ministers. There, the standard policy was to follow the majority of the Commission and proceed to terminate the case. All in all, this case seemed like business as usual.Footnote 58
However, the Dutch Ministry of Foreign Affairs grew worried. The voting record of the Dutch member of the Commission (and member of the Senate for the Christian ARP party), Wilhelm Friedrich de Gaay Fortman, was not easily dismissed. Moreover, his criticism had roots in the domestic legal context, where the practice of using recordings was part of a lively debate. This troubled the Ministry: ‘since the Dutch member of the Commission had a different opinion and this is a very sensitive issue, consultation with the Ministry of Justice seems necessary’.Footnote 59
The move is illustrative of what Madsen has rightly emphasized, namely the dual character of the Commission. Neither purely legal nor purely political, its members were close to their domestic governments, which made their voting, as in this case, a matter of also political concern.Footnote 60 The Dutch concern with ‘its’ Commission member in turn set in motion a remarkable development within the Committee of Minsters.
For when consulted by the Ministry of Foreign Affairs, the Dutch Ministry of Justice responded critically to the report of the Commission and argued that there was a violation of the Convention. Such a violation was a matter of principle: recording someone without their knowledge was a very strong tool and had been used in this case ‘after a provocation from the police and in no proportion to the relative minor seriousness of the committed fact’.Footnote 61 Strong statements such as those did not miss their effect: the Ministry of Foreign Affairs reconsidered its position and started a conversation with the Directorate of Human Rights at the Council of Europe.Footnote 62 According to the Netherlands, it could not simply go along with the findings of the Commission. In coordination with the Directorate, it set out a paragraph for inclusion in the final resolution of the Committee of Ministers. This paragraph would explicitly state that in principle, ‘the recording of a private conversation unbeknown to the participants or one of them constitutes an interference with privacy’, thereby affirming the notion that this right was protected under the Convention.Footnote 63
When the Dutch representative proposed this point in the Committee of Ministers, he did so in strong terms: ‘the Council of Europe would fail in its mission if it accepted that it was normal that these recordings could be used in court […] Should the Committee of Ministers simply agree with the majority view of the Commission, it would appear to take up a position on a question which was much contested judicially, without having examined it sufficiently’.Footnote 64 The Committee of Ministers, a political body, had begun to debate questions of law.
Responses from other states were, however, mixed. Austria unsurprisingly voiced the clearest critique on the Dutch intervention. ‘To adopt this position, is to endorse the minority in the Commission’, the Austrian representative declared incredulously. It was better to follow the precedent of the past, which had been to follow the majority of the Commission.Footnote 65 West-Germany sided with Austria, the Directorate with the Netherlands, leading to a split in the Committee on the basis of an individual case.
Austrian resistance was especially firm. Austria had been rather satisfied with the state-friendly report of the Commission and did not take the Dutch initiative lightly. From Vienna, steps were taken to dissuade the Dutch from continuing this ‘pro-human rights tour’. The Austrian pushback did not come as a surprise: the Dutch initiative was an implicit snub at the Austrian policies. Still, when the Austrian ambassador left an aide-memoire at the Ministry of Foreign Affairs stating that any alteration of the conclusions of the Commission was deemed ‘highly undesirable’ for the Austrian government, the Dutch understood they might need to compromise in order not to risk an open diplomatic conflict.Footnote 66
The solution was sought in a watered-down addition. The final statement openly supported the Commission, yet still addressed the fact that what had been decided was ‘whether in this particular case the claimant did not get a fair hearing as guaranteed by Article 6 of the Convention’.Footnote 67 This wording could satisfy both Austria and the Netherlands: Austria gained the reassurance that its policies were not in violation of the Convention, while the Netherlands was assured that it was only in this very specific case no violation was found.Footnote 68
In the end, the conflict was resolved in 1971 without major diplomatic consequences, but an uneasiness about the procedure remained. For Dries van Agt, the Scheichelbauer-saga was reason to launch an inquiry into the possibilities for change. It had not been the first time the Committee of Ministers had used its powers to the perceived detriment of the proper procedure for human rights protection. Earlier, in the case of Ringeisen v Austria, (also relating to criminal procedures) the Austrian government had, much to the annoyance of the Dutch, actively delayed any treatment of the merits of the case. After the even more contentious case of Scheichelbauer, Van Agt put forward his desire for change to the Ministry of Foreign Affairs.
‘In the case of Scheichelbauer […] the downsides connected to the treatment of an individual complaint by the Committee of Ministers against a member state of the Council of Europe have surfaced’, Van Agt noted.Footnote 69 He proceeded: ‘the risk clearly exists that political considerations influence how complaints are dealt with and even that a certain Judgement of the legal question at hand will be seen as an unfriendly act by the other state’.Footnote 70 Van Agt did see certain merits in the Austrian point of view that the Committee of Ministers should simply go with the majority of the Commission without question, yet at the same time noted how such a solution would ‘undermine any competence’ of the Committee, something he deemed undesirable in case of a split in the Commission. Yet here lay the crux of the story. Even if the Committee would have to decide on issues of law, it was a non-independent institution with a non-legal signature. As such, it was not fit to answer questions on law with authority.
The solution here was simple, but potentially far-reaching: to change the forum in which questions of law should end up. According to Van Agt, it was the European Court which should decide upon these issues. ‘The Netherlands should take the initiative for a change in the referral policy of the Commission’, it was held. ‘In light of the growing number of individual complaints and the increasing size and complexity of the area of human rights, also aside from the case Scheichelbauer, this discussion is a worthwhile exercise’.Footnote 71 It was an important moment: the European Court now began to emerge as a serious preference over the Committee of Ministers for the Netherlands.
Van Agt’s concern formed the start of a broad inquiry into the referral policy of the Commission. The first step was to ask for legal analysis from Riphagen, who again fell back on the ‘travaux’ and the original intent argument to explain the system. The Court was distrusted at that moment, yet he also noted ‘how the drafters could not have foreseen how over the course of 20 years, this distrust would diminish to the result that now 11 of the 15 parties have accepted the jurisdiction’.Footnote 72 In light of these changed circumstances and the concerns of Van Agt, Riphagen noted it could be worthwhile investigating whether there was merit in prescribing a ‘main rule’ to refer a case the Court, should the procedure concern a complaint against a state which had accepted the jurisdiction of the Court.Footnote 73
His department followed Riphagen’s endorsement and set out the possibilities for changing the referral policy. After testing the waters in the other capitals, a conversation between the Committee of Ministers and Commission could potentially be opened to take things a step further.Footnote 74 Caution was urged however. In particular, no impression should be created that this was the beginning of a full-fledged treaty revision, in order not to scare the other states. Moreover, one should be careful not to upset the Commission, who might perceive the initiative as critique on its policy. It was now up to the Permanent Representative in Strasbourg, JM Welsing, to convey the Dutch feeling of uneasiness about the referral policy of the Commission to his counterparts. Would it be possible to insert such a ‘rule of thumb’ and get the Court more involved?Footnote 75
What he received was an ambiguous response. On the one hand, most states agreed the procedure was, legally speaking, far from ideal.Footnote 76 Yet it remained unclear whether a majority would also support the envisaged change. For one, there were certain states which clearly enjoyed the political freedom the system offered. In particular the United Kingdom, Belgium, and Austria embraced the possibility of political influence and were wary of a purely legal approach to the matter. This came as no surprise: all these states had been confronted with sensitive cases, after which they had resorted to political pressure. Belgium had experienced the Belgian Linguistic case and was actively delaying the treatment of another case.Footnote 77 The United Kingdom was embroiled in claims made by its former colonial subjects in the East African Asians Case and had already diminished the period of acceptance of the right of individual complaint from three to two years to express its discontent.Footnote 78
One year later, in response to what was perceived an excessive admittance policy of the Commission, the frustrated British representative would complain how ‘the Commission continuously misjudged the human rights of the democratic state’.Footnote 79 The West German representative took a middle position. Not averse to change per se, he did express his support for the system and its mix of politics and law, because the ‘vagueness of the concept of human rights’ set it apart from other fields of law. Precisely the uniqueness and sensitivity of human rights law made it a ‘sui generis’ legal system which should allow for some political and legal flexibility.Footnote 80
All in all, the reactions signalled strong objection of the other states to fundamentally change the referral policy. Aside from the three principled opponents, this was primarily the result of a belief that a formal revision of the Convention would have to take place to change the referral policy. For many Member States, this was a step too far. The Dutch representative noted the confusion over the topic, as nobody truly seemed to know how such a change could be achieved otherwise.Footnote 81 From the Commission itself, little change could be expected according to the Dutch representative, as it had expressed its preference to ‘take the political route in sensitive cases against the Member States, rather than to involve the court’.Footnote 82
This seemed a bleak conclusion, which made any further talks troublesome. Moreover, the Dutch were cautious. After the quite dramatic failure of the first initiative on the advisory opinion, another political defeat would have to be avoided. Without the clear support of the other Member States, it would be simply counterproductive to needlessly ‘irritate the tempers’.Footnote 83
Remarkably, however, Dutch politicians persisted in pushing this policy. The continued support came from Van Agt, but also benefitted from an influx of political support for the human rights system. After the election in 1973 of the ‘most progressive government the Netherlands had ever seen’ led by Joop den Uyl, support for human rights thinking soared.Footnote 84 The new government included several individuals who knew the Convention from earlier experience and had declared themselves be strong supporters of an independent European legal system. Max van der Stoel, the new minister of Foreign Affairs for instance had been deeply involved with the Convention through his work on the Greek Case of 1969 and his voiced his persistent support for an active European Court of Human Rights in his role as member of the Consultative Assembly.Footnote 85 Wilhelm Friedrich de Gaay Fortman in turn moved from the Commission back to the Hague in order to become Minister of Interior Affairs whilst Laurens Jan Brinkhorst, a young professor of European Law from Groningen and ardent Europeanist became secretary of European affairs.Footnote 86
Crucially, Alkema re-emerged in this context as well. Alkema and Brinkhorst knew each other from Groningen and on occasion would have dinner together.Footnote 87 With his former colleague now in charge of all things relating to the Convention, Alkema had, on a personal note, provided Brinkhorst with some ideas to further strengthen the Convention. Alkema thus had entrances into the system on several levels: as he coached the individual case of Engel to the European level to create legal precedent, he also attempted to change Dutch policy surrounding the Convention.
The ideas Alkema pitched to Brinkhorst revolved around solving a distinct problem. To Alkema, it was the Commission and its restrictive approach which rendered the Convention an underused instrument. The solution Alkema proposed was for the Dutch government to embrace a much more active role itself, for instance by sending cases to the Court.Footnote 88 Brinkhorst was sympathetic to the idea and forwarded these proposals to Riphagen.
Once again, interpretations differed between Alkema and Riphagen. Alkema embodied a new, more active vision of how the Convention should work. Riphagen on the other hand had been of its drafters and symbolized the classic reading of the Convention, with a keen eye for the sensitivities of the states involved. Riphagen was therefore not thrilled with Alkema’s ideas. On the contrary: he considered Alkema as overly critical of the state and, – in Riphagen’s words – suffering from a presumption that the plaintiff was probably right.Footnote 89 However, he replied to Brinkhorst that the key in changing the system lay with the Commission. Although its referral policy gave no indication of any eagerness to use the Court (maybe, Riphagen noted, also because a change in that direction would affect the prestige of the Commission itself?), if the Netherlands was serious about getting the Court involved, it could conduct an indirect policy to influence the ‘climate’ around the Commission.
6. Huber: Shifts in the constellation
That idea would re-emerge after another Austrian case shook the system. Following a referral of the Commission of Huber v. Austria to the Committee, the Ministers were confronted in 1973 with an unexpected situation when the report of the Commission noted a violation of the Convention.Footnote 90 However, in an almost fully comparable case from 1968 (Neumeister v. Austria),Footnote 91 the Court had held there had been no violation. What should the ministers do when the report of the Commission was in apparent contradiction with an earlier Judgement of the Court?
The legal issue at hand was one of extreme delay in proceedings in a criminal procedure.Footnote 92 Both Neumeister and Huber were caught up in the same lengthy criminal case on account of fraud. In both cases, the delay in their proceedings was considerable, ranging to some 12 years in the case of Huber. The practical reason for such a tremendous delay was that the Austrian authorities were largely dependent on authorities in third countries who proved hard to reach and cooperate with. Yet in the face of such extreme delays (in Neumeister, the proceedings had taken over seven years) the question surfaced if this was a ‘fair and public hearing within reasonable time’ as held in Article 6 (1) ECHR. The Court had held that this was indeed the case. Depending on the complexity of the case and the dependency on foreign authorities rendered the delay perhaps long and undesirable, but not enough to warrant calling it a violation of the Convention.
Conversely, five years later in the case of Huber, the Commission did find a violation of Article 6(1). Despite the findings of the Court in Neumeister, a majority of the Commission held that in this particular case the complexity of the case did not weigh up to the rights of Huber for a reasonable swift trial.Footnote 93 It was now up to the Committee of Ministers to delve into a tricky legal issue. In principle, the Court was the prime interpreter of the Convention. Yet in this case the Commission – although split – endorsed a different view.
What to do with such a situation? Initially, this seemed business as usual. The case of Huber attracted little attention with the Dutch government. Internally, the Ministry of Foreign Affairs proposed to simply follow the majority and was supported in this line by the Ministry of Justice.Footnote 94 The latter did express a certain discontent that once again such remarkable cases, in which a difference of opinion arose between Commission and Court, were not transferred to the Court, but left it at that. However, when a formal memorandum was received from the Austrian government, the case was placed at the centre of political attention.
Austria was harshly critical of the report, going as far as to label the findings of the Commission ‘legally unfounded’.Footnote 95 The reasoning of the Commission would be inconsistent with the Judgement of the Court in Neumeister, which was after all a very comparable case dealing with the same issue. Yet what caught the eye of the Dutch diplomats was the opinion of the Austrian government on the role of the Committee of Ministers.
‘The Committee is primarily a political organ, competent to rule on purely legal questions […] only in exceptional cases’, the Austrians held.Footnote 96 What was before it now was precisely this sort of legal twist, which was explicitly not something for the Committee to decide. In the eyes of the Austrians, the Ministers were now ‘overtaxed by a request to decide on a purely legal question’.Footnote 97
Such notions on the role of the Committee strongly resonated with the Dutch civil servants: to them, these statements were fuel for their own ideas on an informal campaign to turn over legal questions to the Court rather than to the Ministers. Legal questions should belong with the proper legal institutions, now the Austrians seemed to think as well.
Yet again, the Committee could not agree on its own role. Could it deviate from a report of the Commission? Opinions were divided, with Austria proposing acceptance of the report without any follow up action, while Italy wished a non-approval of the report of the Commission and Germany believed the opinion of the Commission to be without legal foundation. As such, procedures moved to a standstill.Footnote 98 The chair of the Committee summarized the troubles which had arisen: ‘when the Convention had been drawn up, the intention had been to make the Committee of Ministers the decision-making organ for the European Convention. This might conceivably be justified in the case of an interstate application, but in the case of an individual […] it was extremely difficult to do so objectively’.Footnote 99 This became urgent as more and more of those individual cases emerged, putting an increased strain on this functioning of the Committee.
It was a clash between two positions on what the role of the Committee of Ministers should be. Was it a more legalistic one, keeping the role of the ministers passive and following the reports of the Commission, or a more politically active one, in which the Ministers were free to overrule the findings of the Commission? Whereas the Scandinavian countries and the Netherlands supported the former reading, the latter was the position cherished by the larger states such as Italy and – most of all – the UK.Footnote 100
The case of Huber thus had turned into a fundamental debate on what the role of the Committee of Ministers should be. In successive meetings, the parties found themselves in a stalemate. A slight majority of the states favoured political intervention and wanted to proclaim a non-violation but were unable to reach the threshold of a two-thirds majority.Footnote 101 With none of the governments willing to give ground, a solution was not in sight. The mainly rubberstamp-machine of the Committee of Ministers had ground into a deadlock.
In the end, the only possible decision proved to be a non-decision, entailing the states voted for a resolution not to give further effect to the case. ‘With great doubt we need to accept a non-finalizing of the procedure’, the Dutch permanent representative was instructed.Footnote 102 Yet it was a controversial outcome: ‘this way of not ending the procedure was in violation of the spirit of the Convention’, the Dutch held.Footnote 103
7. Towards a different referral policy?
On the basis of this discontent, the campaign to involve the Court kicked in again. Throughout the saga, the Dutch had continued to express their preference for the judicial solution and tied this into their envisioned larger role for the Court. In cases where the Commission was split and legal questions were at stake, the Committee of Ministers was not the way to go for the Dutch. Smaller states seemed to be on board with this approach as well: the discontent with how Huber played out was widely shared.
As a formal treaty revision was perceived to be unachievable, the Dutch strategy was to create a different ‘mood’ around the referral policy in these years. There were several ways in which this could be achieved. First, this preference was expressed in a very practical manner, namely by getting the Court involved on its own instigation. In this context, the case of Engel resurfaced. As it was decided by the Commission right after these struggles had taken place, the case intersected with this new policy of the Netherlands to change the legal system. It turned out that the aim of both the plaintiffs and the government was now to get the Court involved. Where usually the Commission dealt with states who resented being in front of the Court, the Netherlands had made it clear they saw no problems with such a referral. Instead, the government offered further support to the Court by joining the Commission in referring the case to the Court on its own accord in 1974. In pushing its ‘own’ signature case to the Court and making clear to the Commission this was a desirable course of action, the government actively sought to give the Court a say in the matters. This notion of ‘leading by example’ cannot be seen in isolation from the earlier claims to legalise the system.Footnote 104
A second way to achieve change was by pressuring the persons in and surrounding the Commission. Brinkhorst in particular was relentless in conveying the Dutch worries on the ‘politicization’ of human rights – that the Court was consistently being side-lined in favour of the Committee of Ministers – when he met leading figures within the Council of Europe. This was part of a broader policy: the Dutch actively lobbied the new Secretary General of the Council of Europe when he was elected in 1974.Footnote 105 Expecting him to be ‘eager to change things in his first months in office’, the Dutch pushed for his support in achieving institutional change.Footnote 106
These debates in the Committee of Ministers on what it role should be therefore did not take place in a vacuum: they had implications for the rest of the system. Perhaps the most significant element thereof was the notion that the Court did become more involved in the second half of the 1970s. If the years 1971–1974 were silent for the Court – no Judgements were delivered – a modest stream of cases started to appear before it after 1974, with more and more cases being referred to it by the Commission.
Although the majority of cases were still transferred to the Committee of Ministers, the Court became increasingly involved. Certain hard cases in which the Commission failed to find a comfortable majority were now sent to the Court, for example.Footnote 107 Now the sources do not allow to directly attribute this change in referral policy of the Commission to the discussions of the ministers. Also, the relation between the two institutions was not direct: they were separate and non-hierarchical, on paper at least.
Still, these ‘soft’ attempts to create a different mood around the referral policy were all too real. Moreover, as we have seen, members of the Commission were closely and deeply connected to the governmental elites of the states they represented.Footnote 108 Being sensitive to the political climate surrounding its actions was part and parcel of its functioning. As such, the Commission had actively refrained from involving the Court, following a longstanding distrust in the institution from more sceptical Member States.
Yet crucially, over the course of the early seventies, the Court became increasingly seen as a solution rather than a problem. For the grassroots activists, the Court entailed a promise, namely that of breaking open a restrictive domestic legal order. For the individual activist scholar, the Court was vital to achieve more active human rights protection. And for the Dutch state, the Court emerged as a non-threatening, neutral institution which could help in avoiding political conflict in the Committee of Ministers. Or at least, that was how it was perceived.
This reiterates Madsen’s point, in the sense that the Court in fact benefited from its conservative reputation. As states were confronted with a more active Commission, the past experience with the more reluctant Court was a reason for reassurance. In comparison to a more active Commission or other states with diverging opinions on individual cases, the Court was no longer the most threatening party.Footnote 109 This reinforces the point of Madsen on how the Court had actively built up its authority over the years, which allowed it to be put in a position where ‘law’ became a preferred solution to tenacious ‘politics’.Footnote 110 Yet trust in the Court was far from the only reason: an active and substantive level of genuine support existed as well.
8. Conclusion
When the Court finally ruled on the punishment of the soldiers in 1976, it indeed found a violation of Article 6. It was a remarkable affair: for the first time, the Netherlands had been convicted for a violation of the Convention. Yet the importance of the case wasn’t just legal. For with the case of Engel, two elements came together which had a lasting impact on the system of European human rights protection.
First, it was the outcome of a successful and deliberative use of European law, propelled by an interest in human rights at grassroots level and a mission to ‘activate’ the Court by an engaged academic. It shows the crucial importance engaged individuals could have in strategically litigating cases to the European level and tied into a fundamental change of activism in the seventies, where the burgeoning human rights activism was moulded into European human rights activism: an essential step in order to make the step to Strasbourg. Moreover, in the process, the meaning of the Convention changed: a new generation took over from the drafters, pushing a novel understanding of human rights forward.
Second, the case could be decided in front of the Court as it was allowed to go there. It was a sign of a change in how the ministers perceived the Court. Spurred on by a growth of individual cases before it, the Committee of Ministers began to deal with questions of law – and proved divided thereon. With these discussions in the Committee of Ministers reaching problematic levels of political disagreement, to the level of open diplomatic conflict, the Court emerged as a neutral problem-solving institution. This change in perception, alongside an active campaign by the Dutch to involve the Court, was above all a sign to the Commission: no longer were states fully adverse of the Court. The clearest example is how the Netherlands itself sent its signature case, Engel, to the Court.
All in all, it was thus through a myriad of actors the Convention became a ‘living instrument’. This was no mere top-down movement in which the Court declared this into reality. Rather, the Court acted upon bottom-up movements of individuals, as well as on actions from the states themselves, who collectively breathed life into what had been until then a dormant part of European law. In their search for an ‘independent tribunal’ – the plaintiffs to kill off the military discipline, the government as a solution for the diplomatic squabbles – the Court emerged as the ultimate answer.
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Competing interests
The author has no conflicts of interest to declare.
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