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Foreword
Saadet YÜKSEL*
* Judge, European Court of Human Rights
Judges speak through their opinions, we are often told. But it is often through their separate opinions that we actually hear their voices. The rich timbre of my distinguished and very experienced colleague Judge Pinto de Albuquerque’s voice is hard to miss when one reads his opinions. As a newcomer judge to the European Court of Human Rights in the summer of 2019, I had the distinct pleasure of sharing my first Grand Chamber hearing and deliberation with the Judge, who immediately struck me as a learned and humble jurist. It therefore gives me great pleasure to be able to author a short foreword to this commendable collaborative work compiling, annotating, and analyzing the Judge’s twenty-nine separate opinions is what makes that possible. In each annotation, the authors have summarized the facts and judgment of the case, translated Judge Pinto de Albuquerque’s separate opinions into Turkish, and concluded with an analysis. The annotations analyze both the judgments and the separate opinions in light of the case law of the European Court of Human Rights and discuss how they could interact Turkish law. While I am not bound by the content of the annotations and analyses, as a judge of the European Court of Human Rights, I see the most important aspect of this work in its contribution to fostering a better understanding between Turkish legal actors and our Court.
Since judges speak through their opinions, and relatedly, since the analogy that judges are essentially engaged in a constant dialogue largely holds up, the question arises: with whom? I believe Judge Pinto de Albuquerque’s opinions interacted, and continue to interact with, at least, four separate interlocutors.
First and foremost, Judge Pinto de Albuquerque, like all judges handling concrete disputes at bar, engages the parties to the case. In this Sayfa XII sense, Judge Pinto de Albuquerque’s separate opinions can largely be assumed to be directed, at least as an initial matter, to the parties of the specific disputes within the context of human rights that gave rise to his opinions, notwithstanding, of course, his role, like the role of all judges on our Court, as a formulator and developer of human rights and human rights law.
Second, judges of the European Court of Human Rights have the distinct onus and privilege of addressing directly the entire “Council of Europe legal space,” as I like to call it and indirectly the whole of Europe. Our Court is emphatically not a national or local court; as a supranational court, it is tasked with interpreting the European Convention on Human Rights—a document that embodies the supranational human rights commitments of a diverse array of countries. In other words, our Court does actively cooperate and collaborate with national superior courts to ensure judicial dialogue and that the Convention is implemented throughout the Council of Europe legal space. This is indeed a mandate of the subsidiarity principle—a pillar upon which our entire system of human rights adjudication operates. Against this backdrop, then, our Court’s judges, when they issue opinions, cannot be assumed to be conversing with only concrete parties to a case. On the contrary, our interlocutors go beyond mere parties to a controversy, notwithstanding parties’ centrality to any given case. We potentially speak with all interested parties in all of the member states. And again, Judge Pinto de Albuquerque’s opinions are no exception. The Judge’s separate opinions reach the ears and eyes of all interested parties across all of our member states, which is why I think it is appropriate to describe, as I have already done, our jobs as judges of this particular Court as a distinct onus and privilege. The Judge’s separate opinions, then, must be analyzed within this framework of having a rich number of interlocutors.
Third, while our Court is one whose jurisdiction spans the entire Council of Europe legal space and Europe, others are not deaf to what we have to say. Even the U.S. Supreme Court, not particularly known for its engagement with sister courts worldwide and with supranational courts, has cited our opinions. Other national courts outside the Council of Sayfa XIII Europe, more receptive to comparative examples, continue to cite to our opinions more frequently. In this sense, Judge Pinto de Albuquerque’s separate opinions have an audience that emphatically extends beyond the borders of our Member States. It reaches the eyes and ears of our colleagues and jurists beyond our jurisdiction, who look to our decisions as guiding and persuasive authority.
Fourth, the judicial task, especially when the duty to adjudicate is allocated to a collegial group of judges is a collaborative task. In other words, adjudication in a multi-member court such as ours involves deliberating with colleagues, which makes our jobs, albeit not the easiest, definitely among the most fascinating and meaningful. A concrete case must be adjudicated and legal answers must be provided. Through our opinions, we also seek to interact with our colleagues with whom we constantly share the duty to adjudicate a particular case. It is in that sense that, at one level, Judge Pinto de Albuquerque’s separate opinions can be read as interacting with his fellow colleagues on the Court, with all of us. Separate opinions often express a procedural and/or substantive disagreement with what the majority of the court has decided on. Sometimes a judge agrees with much of the reasoning and even the outcome of a particular case, but nevertheless writes a separate opinion, sometimes to disagree with parts of the majority’s legal reasoning, sometimes to spell out implications of the decision that the majority might have overlooked, and sometimes to qualify assertions made by the majority opinion. And when the time comes, other judges of the court can and do invoke those separate opinions to bolster their own assertions about how a particular case ought to be decided—that way separate opinions mark their imprint, indelibly, on our jurisprudence. Judge Pinto de Albuquerque’s separate opinions, to be read not merely by parties to the cases for which they were issued, but equally importantly, by his contemporaneous colleagues on the Court as well as those to come, have indeed indelibly marked their imprint on our Court’s jurisprudence. Any judge of our Court dealing with matters even remotely pertaining to the Judge’s separate opinions will indubitably have to acquaint himself or herself with those separate opinions before agreeing or disagreeing with them. Sayfa XIV
While I wrote at the outset that I believed there were at least four interlocutors of Judge Pinto de Albuquerque’s separate opinions—the concrete parties, actors of the Council of Europe legal space, judges and jurists worldwide, and his colleagues on our Court—let me specify one final set of interlocutors the Judge’s separate opinions will have from now on: Turkish judges and scholars, thanks to the masterful work of all contributors, the distinguished editors of this book and the efforts of Prof. Dr. Adem Sözüer, Chair of the Criminal Law Department at Istanbul Law School. Due to their able compilation of the Judge’s separate opinions, with annotations, the Judge’s separate opinions will now be more accessible and relevant to a distinctively Turkish readership.
Judge Pinto de Albuquerque’s separate opinions touch on a wide range of substantive issues, to put it moderately. Whether it be treatment of persons with intellectual disabilities, individualized sentencing for offenders, the right to Internet access, the proper execution of our Court’s judgments, problems presented by overcrowded detention facilities, surveillance at the workplace, Internet intermediaries and their liability, state monopolies, or positive obligations for the effective enjoyment of the right to health care, Judge Pinto de Albuquerque’s separate opinions have indeed engaged with a formidable number of issues. Indeed, now with this book, Turkish judges and scholars have access to all of these separate opinions on all of these and more issues to think about.
To be clear, one need not necessarily agree or endorse the contents of these separate opinions to appreciate their value. Therein lies, to my understanding, the real strength of Judge Pinto de Albuquerque’s separate opinions: indispensable interpretive guides, regardless of whether one agrees or disagrees with them, as one navigates the endless possibilities of human rights adjudication. And now, thanks to the editors and contributors, Turkish judges and scholars can do the same.
