Обзор судьи Пинто де Альберкерке и прогрессивного развития международного права прав человека

2 июля 2021 г.
Review of Judge Pinto de Alberquerque and the Progressive Development of International Human Rights Law

By Toby Collis, Lawyer, EHRAC

It is with great pleasure that we have the opportunity to receive and comment on Judge Pinto de Alberquerque’s most recent work, entitled “Judge Pinto de Alberquerque and the Progressive Development of International Human Rights Law”, edited by Triestino Mariniello (2021, Brill:Nijhofff).

This book is unlike the previous of his works, as it is not extra-judicial writing. Instead, this is an edited collection of 34 judgments – concurring, separate, and dissenting opinions – curated from his long list of 157 opinions that he authored from April 2011, until March 2020.

These opinions are all, it must be said, freely available on HUDOC appended to the relevant majority judgments. Why then bring them together in a separate work? This question, indeed, raises two sub-questions: first the purpose and value of separate opinions, and second, the purpose and value in bringing those of a single judge into one volume.

On the first question, much has been written[1] that this short review will not repeat. However, it was no accident that the Strasbourg Court adopted the (primarily but not exclusively) Anglo-American model of opinion-writing that accommodated and welcomed separate opinions, as opposed to other pan-European judicial bodies (notably the CJEU), that do not, or very rarely, permit such opinions. And Judge Pinto de Alberquerque shows the fruits of the Strasbourg Court’s approach. In the collection of cases contained in this volume, where concurring, he gets, in his words, to the heart of the issue, and teases out the jurisprudential blind spots largely omitted by the consensus achieved by the majority opinion. In his dissenting opinions, he lays down an alternative vision for the jurisprudence – perhaps an archaeological mark for later jurists to adopt when the living instrument of the Convention (or more accurately, its judges) is ready for it. Or perhaps even judicial activism in the true sense of the word – not as a mode of judicial interpretation, but as an advocate for the marginalised and the vulnerable. And it is through his writing we see Judge Pinto de Alberquerque as the champion of both.

So if the value of the judgments is self-evident, what is the further value of bringing them together, beyond mere convenience? This, I believe, is the true importance of this work. Bringing the judgments together tells a story that hints at the deeper philosophical convictions guiding Judge Pinto de Alberquerque’s writings. The curation of the judgments brings out broader themes and meditations on, for instance, the relationship between the Convention and domestic constitutions and International law; thematic issues touching on penal policy, social welfare, the Internet and the plight of migrants; as well as methods of adjudication, examining issue such as legal representation before the Court, the giving of indicative measures, and punitive just satisfaction.

Each chapter launches straight into the concurring or dissenting judgment, with no background or summary of the case in which it was written, or the opinion of the majority. Therefore to truly understand the writings, one may have to supplement by viewing the majority opinion online. However, whilst this may be viewed as a weakness of the book, equally it can be a strength. Each opinion draws out important issues and analyses that, in many instances, sit above the subject matter of the case. To de-contextualise the opinions as the book does makes this even more clear. So it is up to the reader to decide how they wish to engage with the work.

Finally, I look forward to the time this work is re-released on paperback, as at its current list-price (approx. €400), it is beyond the reach of many practitioners and students. That said, being the important work that it is, it will be stocked by most good law libraries, and should therefore be consulted by anyone interested in exploring this important jurist’s judicial writings.

[1] See, e.g. Robin C. A. White & Iris Boussiakou, Separate Opinions in the European Court of Human Rights, 9 HUM. Rts. L. REV. 37 (2009)