Great Debates

on the European
Convention on
Human Rights

Fiona de Londras
Kanstantsin Dzehtsiarou
Great Debates on the European
Convention on Human Rights
 Palgrave Great Debates in Law

Series Editor
Jonathan Herring Professor of Law, University of Oxford

Company Law
Lorraine Talbot

Contract Law
Jonathan Morgan
Criminal Law
Jonathan Herring

Employment Law
Simon Honeyball

Equity and Trusts

Alastair Hudson
Family Law
Jonathan Herring, Rebecca Probert & Stephen Gilmore

Gender and Law

Rosemary Auchmuty (ed.)

Jurisprudence
Nicholas J McBride & Sandy Steel
Medical Law and Ethics
Imogen Goold & Jonathan Herring

Land Law
David Cowan, Lorna Fox O’Mahony & Neil Cobb
The European Convention on Human Rights
Fiona de Londras & Kanstantsin Dzehtsiarou
 Palgrave Great Debates in Law

Great Debates on the

European Convention
on Human Rights
Fiona de Londras
Professor of Global Legal Studies,
University of Birmingham

Kanstantsin Dzehtsiarou
Senior Lecturer in Law,
University of Liverpool
© Fiona de Londras & Kanstantsin Dzehtsiarou, under exclusive licence
to Macmillan Publishers Ltd, part of Springer Nature 2018
All rights reserved. No reproduction, copy or transmission of this
publication may be made without written permission.
No portion of this publication may be reproduced, copied or transmitted
save with written permission or in accordance with the provisions of the
Copyright, Designs and Patents Act 1988, or under the terms of any licence
permitting limited copying issued by the Copyright Licensing Agency,
Saffron House, 6–10 Kirby Street, London EC1N 8TS.
Any person who does any unauthorized act in relation to this publication
may be liable to criminal prosecution and civil claims for damages.
The authors have asserted their rights to be identified as the authors of this
work in accordance with the Copyright, Designs and Patents Act 1988.
First published 2018 by
PALGRAVE
Palgrave in the UK is an imprint of Macmillan Publishers Limited,
registered in England, company number 785998, of 4 Crinan Street,
London N1 9XW.
Palgrave® and Macmillan® are registered trademarks in the United States,
the United Kingdom, Europe and other countries.
ISBN 978–1–137–60731–7
This book is printed on paper suitable for recycling and made from fully
managed and sustained forest sources. Logging, pulping and manufacturing
processes are expected to conform to the environmental regulations of the
country of origin.
A catalogue record for this book is available from the British Library.
A catalog record for this book is available from the Library of Congress.
 Contents

Preface and Acknowledgements ix

Abbreviationsxi
Table of Cases xiii
Table of Legislation xxi
Introductionxxv

1 The Convention, the Court, and the Heart of the Matter 1

I. What is Legitimacy? 1
Sources of Legitimacy 2
a. Consent as a basis for legitimacy 3
b. Moral purpose as a basis for legitimacy 4
c. Method as a basis for legitimacy 6
d. Subsidiarity as a basis for legitimacy 8
e. Effectiveness as a basis for legitimacy 9
II. How Does the Court Operate? 10
History and Development of the Convention 11
Structure and Procedure 15
III. How Are Judges Appointed? 16
Appointment of Judges 17
The Principle of National Representation 19
Length and Conditions of Tenure 20
IV. The Other Relevant Bodies 20
The Registry of the Court 20
The Committee of Ministers 23
The Human Rights Commissioner 24
Conclusion 24
Further Reading 25

v
vi  
Contents

2 Sovereignty and Authority 27

Debate 1: Who has the final word in human rights cases:
the court or the contracting parties? 27
Debate 2: What is the relationship between the EU and
the ECHR? 34
Debate 3: Should the EU accede to the ECHR? 39
Debate 4: What is the relationship between the ECHR and other
sources of international law? 42
Conclusion 46
Further Reading 47

3 Admissibility 49
Debate 1: How do admissibility criteria affect the Court’s
legitimacy? 51
Debate 2: Who can apply to the Court? 54
Victims of Covert Activities 55
Unidentifiable Victims 56
Deceased Victims 56
Corporate Victims 58
Debate 3: How significant must disadvantage be? 59
Debate 4: How much discretion should the Court have in
deciding admissibility? 61
Debate 5: How does admissibility relate to effectiveness? 66
Conclusion 69
Further Reading 69

4 Evolution or Revolution? 71
Debate 1: Is evolutive interpretation of the Convention
necessary? 72
Debate 2: How does the Court determine the moment of
evolution? 79
European Consensus 79
International Consensus 83
Internal Consensus 86
Expert Consensus 88
Debate 3: Is evolution necessarily progressive? 89
Conclusion 91
Further Reading 91
 vii
Contents  

5 Accounting for Difference: Proportionality and the Margin of

Appreciation 93
Debate 1: Do we need a proportionality analysis for rights
adjudication? 96
Was there an Interference with an ECHR Right? 96
Was the Interference Legal? 97
Did the Interference Pursue a Legitimate Aim? 97
Is the Interference Necessary in a Democratic Society? 98
Did the Authorities Balance the Relevant Public and Private
Interests Properly When they Considered the Interference? 98
Debate 2: Should national authorities have a margin of
appreciation in respect of human rights protection? 104
Debate 3: What are the boundaries of the margin of appreciation? 108
The Nature of the Implicated Right 109
Beyond the Nature of the Implicated Right 111
The Democratic Process at the National Level 112
The Complexity of the Issue 113
Conclusion 114
Further Reading 114

6 The Convention in Times of Insecurity 117

Debate 1: Does the ECHR apply in war? 118
Debate 2: Does the ECHR have extraterritorial effect? 121
Debate 3: Should rights be suspended in times of emergency? 132
The Procedural Requirement 134
The Threshold Requirement 134
The Substantive Requirement 137
Debate 4: Does the Convention protect people from ‘everyday
insecurity’? 140
Conclusion 145
Further Reading 146

7 Socio-Economic Rights and the European Convention

on Human Rights 147
Debate 1: Should the ECHR be used to protect socio-economic
rights? 148
Debate 2: Can the ECHR protect socio-economic wellbeing in a
time of austerity? 156
viii  
Contents

Debate 3: Can the right to non-discrimination promote

socio-economic equality? 161
Conclusion 166
Further Reading 166

8 Implementing the Convention: The Execution of ECtHR

Judgments167
Debate 1: What remedies can the Court order? 168
Debate 2: Must respondent states execute judgments of the ECtHR? 175
Arguments of Principle 176
Arguments of the Constitution 177
Arguments of Practicality 180
The Argument for Execution 181
Debate 3: Should non-respondent states give effect to ECtHR
judgments? 186
Conclusion 192
Further Reading 192
 Preface and Acknowledgements

The European Convention on Human Rights (ECHR or Convention) is

widely hailed as the most successful regional human rights instrument. The
decisions of its European Court of Human Rights (ECtHR or Court) are cited
all around the world, and every year tens of thousands of people turn to that
very Court for relief and aid when they consider their human rights have been
violated. In each of the 47 Contracting Parties to the Convention, the ECHR
has an everyday impact, shaping law and public policy, being argued in domes-
tic courts, and sometimes even becoming the locus for impassioned politi-
cal and public debate on how the Convention works (or does not), and what
rights it protects (or does not).
Law schools all over Europe feature courses on the Convention, at both
undergraduate and postgraduate levels, as indeed do schools of political
science, international relations and others. Much of the instruction on the
Convention, at least in law schools, focuses on the case law of the Convention
and approaches it on an article-by-article basis. This grounding in the Conven-
tion, the jurisprudence of the Court, and the emerging contestations around
whether the Convention properly protects the rights of marginalised groups
and those who might be said to be particularly vulnerable is a vital foundation
for understanding the Convention. However, the law relating to the ECHR is
voluminous, and in many courses there is limited space to do more than con-
centrate on a number of particular Articles, some of the most well-known case
law and some topics of particular contention (such as LGBTQI rights, states of
emergency and freedom of the press, for example).
Once an explorer of the ECHR has this grounding, a thematic approach to
thinking, teaching and learning about the Convention becomes possible, and
that is what we aim to facilitate with this book. Whilst there is, of course, a con-
centration at certain points on how the case law relating to a particular Article
illustrates the debate we are considering, we do not purport to provide here a
comprehensive account of the Convention, its case law, or the law and opera-
tion of any of its Articles. Instead, we aim to illuminate some debates by taking
a wide lens on the ECHR, reaching across Articles to illustrate some points of

ix
x  
Preface and Acknowledgements

contention, reaching across the tramlines between the national and interna-
tional arenas for others, and reaching into the ‘back’ of the ECtHR—its organ-
isation, working practices and Registry—for others still.
Through doing this we hope to spark debates and discussions, building on
the solid grounding in the Convention that emerges from the necessary study
of particular rights and lines of jurisprudence, and thereby to spark a deep and
critical engagement with the Convention, the Court, and the European system
for human rights protection.
We are indebted to Mima Markicevic and Magdalena Furgalska for research
assistance and, in the latter case, for reading and commenting on the whole
manuscript from a student’s perspective.
We would like to thank Professor Jonathan Herring, Aléta Bezuidenhout
and our anonymous readers from Palgrave.
 Abbreviations

CDDH Steering Committee for IMF International Monetary

Human Rights Fund
CEDAW UN Convention on the KFOR NATO Kosovo Force
Elimination of all Forms LGBTQI Lesbian, Gay, Bisexual,
of Discrimination Against Transgender, Questioning
Women and Intersex
CEO Chief Executive Officer NATO North Atlantic Treaty
ECB European Central Bank Organization
ECHR European Convention on NGO Nongovernmental
Human Rights (Convention Organisation
for the Protection of Human PACE Parliamentary Assembly of
Rights and Fundamental the Council of Europe
Freedoms) SFIR Stabilisation Force in
ECJ European Court of Justice Iraq
ECtHR European Court of Human TEU Treaty on European Union
Rights TRNC Turkish Republic of
EU European Union Northern Cyprus
HIV Human Immunodeficiency UK United Kingdom
Virus UN United Nations
ICRC International Committee of UN HRC United Nations Human
the Red Cross Rights Committee
IHL International Humanitarian UNMIK United Nations Mission in
Law Kosovo
ILC International Law US United States of America
Commission USSR Union of Soviet Socialist
ILO International Labour Republics
Organisation WTO World Trade Organization

xi
 Table of Cases

ECtHR and European Commission on Al-Dulimi and Montana Management

Human Rights Inc. v Switzerland [GC], no.
5809/08, ECHR 2016.
A Al-Jedda v the United Kingdom [GC],
A.A. v Greece, no. 12186/08, 22 July no. 27021/08, ECHR 2011.
2010. Al-Khawaja and Tahery v the United
A. and Others v the United Kingdom Kingdom [GC], nos 26766/05 and
[GC], no. 3455/05, ECHR 2009. 22228/06, ECHR 2011.
A, B and C v Ireland [GC], no. Al-Skeini and Others v the United
25579/05, ECHR 2010. Kingdom [GC], no. 55721/07,
A. v Croatia, no. 55164/08, 14 ECHR 2011.
October 2010. Alekseyev v Russia, nos 4916/07,
Abdulaziz, Cabales and Balkandali v 25924/08 and 14599/09, 21
the United Kingdom, 28 May 1985, October 2010.
Series A no. 94. Amuur v France, 25 June 1996, Reports
Advisory Opinion on Certain Legal of Judgments and Decisions 1996-III.
Questions Concerning the Lists of Ananyev and Others v Russia, nos
Candidates Submitted with a View 42525/07 and 60800/08, 10
to the Election of Judges to the January 2012.
European Court of Human Rights Ananyev v Russia, no. 20292/04, 30
(No. 1), 12 February 2008. July 2009.
Advisory Opinion on Certain Legal Anchugov and Gladkov v Russia, nos
Questions Concerning the Lists of 11157/04 and 15162/05, 4 July
Candidates Submitted with a View 2013.
to the Election of Judges to the Assanidze v Georgia [GC], no.
European Court of Human Rights 71503/01, ECHR 2004-II.
(No. 2), 22 January 2010. Association for the Defence of Human Rights
Agrotexim and Others v Greece, 24 in Romania – Helsinki Committee on
October 1995, Series A no. 330-A. behalf of Ionel Garcea v Romania, no.
Airey v Ireland, 9 October 1979, Series 2959/11, 24 March 2015.
A no. 32. Avotin,š v Latvia, no. 17502/07, 25
Aksoy v Turkey, 18 December 1996, February 2014.
Reports of Judgments and Decisions Azinas v Cyprus, no. 56679/00, 20 June
1996-VI. 2002.

xiii
xiv  
Table of Cases

B Centre for Legal Resources on behalf of

Banković and Others v Belgium and Valentin Câmpeanu v Romania [GC],
Others (dec.) [GC], no. 52207/99, no. 47848/08, ECHR 2014, para. 23.
ECHR 2001-XII. Chapin and Charpentier v France, no.
Bayatyan v Armenia [GC], no. 40183/07, ECHR 194.
23459/03, ECHR 2011. Christine Goodwin v the United Kingdom
Behrami v France and Saramati v [GC], no. 28957/95, ECHR 2002-VI.
France, Germany and Norway (dec.), Ciorap v Moldova (no. 2), no. 7481/06,
no. 71412/01 and 78166/01, 2 May 20 July 2010.
2007. Civek v Turkey, no. 55354/11, 23
Bevacqua and S. v Bulgaria, no. February 2016.
71127/01, 12 June 2008. Colman v the United Kingdom, 28 June
‘Blonje’ v the Netherlands (dec.), no. 1993, Series A no. 258-D.
7245/09, 15 September 2009. Cossey v the United Kingdom, 27
Bock v Germany (dec.), no. 22051/07, September 1990, Series A no. 184.
19 January 2010. Costa and Pavan v Italy, no. 54270/10,
Bosphorus Hava Yolları Turizm ve Ticaret 28 August 2012.
Anonim Şirketi v Ireland [GC], no. Costello-Roberts v the United Kingdom,
45036/98, ECHR 2005-VI. 25 March 1993, Series A no. 247-C.
Bowman v the United Kingdom, Cruz Varas and Others v Sweden, 20
19 February 1998, Reports of March 1991, Series A no. 201.
Judgments and Decisions 1998-I. Cyprus v Turkey [GC], no. 25781/94,
Branko Tomašić and Others v Croatia, ECHR 2001-IV.
no. 46598/06, 15 January 2009. Cyprus v Turkey (just satisfaction) [GC],
Brannigan and McBride v the United no. 25781/94, ECHR 2014.
Kingdom, 26 May 1993, Series A no.
258-B. D
Budina v Russia (dec.), no. 45603/05, D. v the United Kingdom, 2 May 1997,
18 June 2009. Reports of Judgments and Decisions
Burdov v Russia (no. 2), no. 33509/04, 1997-III.
ECHR 2009. D.H. and Others v the Czech Republic
[GC], no. 57325/00, ECHR 2007-IV.
C Daddi v Italy (dec.), no. 15476/09, 2
Calmanovici v Romania, no. 42250/02, June 2009.
1 July 2008. De Souza Ribeiro v France [GC], no.
Campbell and Cosans v the United 22689/07, ECHR 2012.
Kingdom, 25 February 1982, Series De Wilde, Ooms and Versyp v Belgium
A no. 48. (Article 50), 10 March 1972, Series
Capital Bank AD v Bulgaria, no. A no. 14.
49429/99, ECHR 2005-XII. Demir and Baykara v Turkey [GC], no.
Capuano v Italy, 25 June 1987, Series A 34503/97, ECHR 2008.
no. 119. Demopoulos and Others v Turkey (dec.)
Case ‘Relating to Certain Aspects of [GC], nos. 46113/99 and seven
the Laws on the Use of Languages in others, ECHR 2010.
Education in Belgium’ (merits), 23 Di Mauro v Italy [GC], no. 34256/96,
July 1968, Series A no. 6. ECHR 1999-V.
Catan and Others v the Republic of Dickson v the United Kingdom [GC], no.
Moldova and Russia [GC], nos 44362/04, ECHR 2007-V.
43370/04, 8252/05 and 18454/06, Dobri v Romania, no. 25153/04, 14
ECHR 2012. December 2010.
 xv
Table of Cases  

Drijfhout v Netherlands (dec.), no. Hajduová v Slovakia, no. 2660/03, 30

51721/09, 22 February 2011. November 2010.
Dudek v Germany (dec.), no. 12977/09, Halime Kılıç v Turkey, no. 63034/11,
23 November 2010. 28 June 2016.
Dudgeon v the United Kingdom, Hassan v the United Kingdom [GC], no.
22 October 1981, Series A 29750/09, ECHR 2014.
no. 45. Hatton and Others v the United Kingdom
[GC], no. 36022/97, ECHR
E 2003-VIII.
E.M. v Romania, no. 43994/05, 30 Hirst v the United Kingdom (no. 2)
October 2012. [GC], no. 74025/01, ECHR
Egmez v Cyprus, no. 30873/96, ECHR 2005-IX.
2000-XII.
Eremia v the Republic of Moldova, no. I
3564/11, 28 May 2013. Idalov v Russia [GC], no. 5826/03, 22
Evans v the United Kingdom [GC], no. May 2012.
6339/05, ECHR 2007-I. Ilgar Mammadov v Azerbaijan, no.
15172/13, 22 May 2014.
F Inze v Austria, 28 October 1987, Series
Finogenov and Others v Russia, nos A no. 126.
18299/03 and 27311/03, ECHR Ionescu v Romania (dec.), no.
2011. 36659/04, 1 June 2010.
Folgerø and Others v Norway [GC], no. Ireland v the United Kingdom, 18
15472/02, ECHR 2007-III. January 1978, Series A no. 25.
Fretté v France, no. 36515/97, ECHR Iribarren Pinillos v Spain, no.
2002-I. 36777/03, 8 January 2009.
Frodl v Austria, no. 20201/04, 8 April
2010. J
Jahn and Others v Germany [GC],
G nos 46720/99, 72203/01 and
G.Z. v Austria (dec.) no. 5591/72, 72552/01, ECHR 2005-VI.
Commission decision of 2 April 1973, Jaloud v the Netherlands [GC], no.
Collection 43, p. 161. 47708/08, ECHR 2014.
Gaygusuz v Austria, 16 September 1996, James and Others v the United Kingdom,
Reports of Judgments and Decisions 21 February 1986, Series A no. 98,
1996-IV. para. 46.
Giacomelli v Italy, no. 59909/00, Janowiec and Others v Russia, nos
ECHR 2006-XII. 55508/07 and 29520/09, 16 April
Glor v Switzerland, no. 13444/04, 2012.
ECHR 2009. Janowiec and Others v Russia [GC], nos
Grandrath v Germany, no. 5591/72, 55508/07 and 29520/09, ECHR
Commission decision of 2 April 1973, 2013.
Collection 43, p. 161.
Greens and M.T. v the United Kingdom, K
nos 60041/08 and 60054/08, Kalashnikov v Russia, no. 47095/99,
ECHR 2010. ECHR 2002-VI.
Kalucza v Hungary, no. 57693/10, 24
H April 2012.
Haas v Switzerland, no. 31322/07, Kiyutin v Russia, no. 2700/10, ECHR
ECHR 2011. 2011.
xvi  
Table of Cases

Koch v Germany, no. 497/09, 19 July M

2012. M.C. v Bulgaria, no. 39272/98, ECHR
Kolosovskiy v Latvia (dec.), no. 2003-XII.
50183/99, 29 January 2007. M.G. v Turkey, no. 646/10, 22 March
Kondrulin v Russia, no. 12987/15, 20 2016.
September 2016. M.S.S. v Belgium and Greece [GC], no.
Kontrová v Slovakia, no. 7510/04, 31 30696/09, ECHR 2011.
May 2007. Mamatkulov and Askarov v Turkey
Konstantin Markin v Russia, no. [GC], nos 46827/99 and 46951/99,
30078/06, 7 October 2010. ECHR 2005-I.
Konstantin Markin v Russia [GC], no. Manerov v Russia, no. 49848/10, 5
30078/06, ECHR 2012. January 2016.
Korolev v Russia (dec.), no. 25551/05, Marckx v Belgium, 13 June 1979, Series
ECHR 2010. A no. 31.
Koufaki and Adedy v Greece, nos Marguš v Croatia [GC], no. 4455/10,
57665/12 and 57657/12, 7 May ECHR 2014.
2013. Marshall v United Kingdom (dec.), no.
Kulinski and Sabev v Bulgaria, no. 41571/98, 10 July 2001.
63849/09, 21 July 2016. McDaid and Others v the United
Kingdom (dec. European
L Commission), nos 34822/97 and five
L. and V. v Austria, nos 39392/98 and others, 9 April 1996.
39829/98, ECHR 2003-I. Mehmet and Suna Yiğit v Turkey, no.
Lakićević and Others v Montenegro and 52658/99, 17 July 2007.
Serbia, nos 27458/06, 37205/06, Mentzen v Latvia (dec.), no. 71074/01,
37207/06 and 33604/07, 13 ECHR 2004-XII.
December 2011. Micallef v Malta [GC], no. 17056/06,
Lawless v Ireland, 7 April 1961, Series A ECHR 2009.
no. 2. Michaud v France, no. 12323/11,
Lautsi and Others v Italy [GC], no. ECHR 2012.
30814/06, ECHR 2011. Modarca v Moldova, no. 14437/05, 10
Leonidis v Greece, no. 43326/05, 8 May 2007.
January 2009. Murphy v Ireland, no. 44179/98,
Leyla Şahin v Turkey [GC], no. ECHR 2003-IX.
44774/98, ECHR 2005-XI.
Lithgow and Others v the United N
Kingdom, 8 July 1986, Series A no. N.K.M. v Hungary, no. 66529/11, 14
102. May 2013.
Loizidou v Turkey (merits), 18 December Nada v Switzerland [GC], no.
1996, Reports of Judgments and 10593/08, ECHR 2012.
Decisions 1996-VI. Nagovitsyn and Nalgiyev v Russia,
Luczak v Poland, no. 77782/01, 27 no. 27451/09 and 60650/09, 23
November 2007. September 2010.
Lukenda v Slovenia, no. 23032/02, Nencheva and Others v Bulgaria, no.
ECHR 2005-X. 48609/06, 18 June 2013.
Lustig-Prean and Beckett v the United
Kingdom, nos 31417/96 and O
32377/96, 27 September O’Keeffe v Ireland [GC], no. 35810/09,
1999. ECHR 2014.
 xvii
Table of Cases  

OAO Neftyanaya Kompaniya Yukos v S.H. and Others v Austria [GC], no.
Russia (dec.), no. 14902/04, 29 57813/00, ECHR 2011.
January 2009. Salgueiro da Silva Mouta v Portugal, no.
OAO Neftyanaya Kompaniya Yukos v 33290/96, ECHR 1999-IX.
Russia, no. 14902/04, 20 September Sander v the United Kingdom, no.
2011. 34129/96, ECHR 2000-V.
Odièvre v France [GC], no. 42326/98, Schalk and Kopf v Austria, no.
ECHR 2003-III. 30141/04, ECHR 2010.
Oleksandr Volkov v Ukraine, no. Schwizgebel v Switzerland, no.
21722/11, ECHR 2013. 25762/07, ECHR 2010.
Oliari and Others v Italy, nos 18766/11 Scoppola v Italy (no. 3) [GC], no.
and 36030/11, 21 July 2015. 126/05, 22 May 2012.
Opuz v Turkey, no. 33401/02, ECHR Scordino v Italy (dec.), no. 36813/97,
2009. ECHR 2003-IV.
Oršuš and Others v Croatia [GC], no. Shamayev and Others v Georgia and
15766/03, ECHR 2010. Russia (dec.), no. 36378/02, 12
Osmanoğlu and Kocabaş v Switzerland, April 2005.
no. 29086/12, ECHR 2017. Sejdić and Finci v Bosnia and
Herzegovina [GC], nos 27996/06
P and 34836/06, ECHR 2009.
Paez v Sweden, 30 October 1997, Sheffield and Horsham v the United
Reports of Judgments and Decisions Kingdom, 30 July 1998, Reports of
1997-VII. Judgments and Decisions
Parrillo v Italy [GC], no. 46470/11, 27 1998-V.
August 2015. Sidabras and Džiautas v Lithuania, nos
Pilav v Bosnia and Herzegovina, no. 55480/00 and 59330/00, ECHR
41939/07, 9 June 2016. 2004-VIII.
POA and Others v the United Kingdom Singh v France (dec.), no. 4479/07, 13
(dec.), no. 59253/11, 21 May 2013. November 2008.
Poznanski and Others v Germany (dec.), Soering v the United Kingdom, 7 July
no. 25101/05, 3 July 2007. 1989, Series A no. 161.
Pretty v the United Kingdom, no. Söyler v Turkey, no. 29411/07, 17
2346/02, ECHR 2002-III. September 2013.
Stec and Others v the United Kingdom
[GC], nos 65731/01 and 65900/01,
R ECHR 2006-VI.
Rees v the United Kingdom, 17 October Stichting Mothers of Srebrenica and
1986, Series A no. 106. Others v the Netherlands (dec.), no.
Roman Zakharov v Russia [GC], no. 65542/12, ECHR 2013.
47143/06, ECHR 2015. Sufi and Elmi v the United Kingdom, nos
8319/07 and 11449/07, 28 June
S 2011.
S. and Marper v the United Kingdom Sutherland v the United Kingdom, no.
[GC], nos 30562/04 and 30566/04, 25186/94, Commission’s report of 1
ECHR 2008. July 1997, unpublished.
S.A.S. v France [GC], no. 43835/11,
ECHR 2014. T
S.D. v Greece, no. 53541/07, 11 June Tabesh v Greece, no. 8256/07, 26
2009. November 2009.
xviii  
Table of Cases

Talpis v Italy, no. 41237/14, 2 March UN Human Rights Committee

2017. Singh v France, HRC, 26/09/2013,
Tănase v Moldova [GC], no. 7/08, CCPR/C/108/D/1928/2010.
ECHR 2010. European Committee on Social Rights
The Greek Case, no. 3321/67 (1969) European Roma Rights Centre v
12 YB 1. Bulgaria, Complaint No. 48/2008
Thlimmenos v Greece [GC], no. (Decision 31 March 2009).
34369/97, ECHR 2000-IV. Federation of Employed Pensioners of
Tyrer v the United Kingdom, 25 April Greece (IKA-ETAM) v Greece,
1978, Series A no. 26. Complaint 76/2011.
Tysiac v Poland, no. 5410/03, ECHR General Federation of Employees of the
‘
2007-I. National Electric Power Corporation
(GENOP-DEI) and Confederation of
V Greek Civil Servants’ Trade Unions
Valiulienė v Lithuania, no. 33234/07, (ADEDY) v Greece, Complaint
26 March 2013. 66/2011.
Vinter and Others v the United Kingdom
[GC], nos 66069/09 and two others, ECJ
ECHR 2013. Bosphorus Hava Yollari Turizm ve
Vo v France [GC], no. 53924/00, Ticaretas v Minister for Transport,
ECHR 2004-VIII. Energy and Communications and
Von Hannover v Germany, no. Others [1996] EUECJ C-84/95.
59320/00, ECHR 2004-VI. Costa v Ente Nazionale Energia Elettrica
Von Hannover v Germany (no. 2) [GC], (ENEL) [1964] ECR 585.
nos 40660/08 and 60641/08, Internationale Handelsgesellschaft mbH v
ECHR 2012. Einfuhr- und Vorratsstelle für Getreide
und Futtermittel, 1970 ECR 1125.
W Joined cases C 293/12 and C 594/12
Wieczorek v Poland, no. 18176/05, 8 Digital Rights Ireland [2014] OJ C
December 2009. 175.
Winterstein and Others v France, no. Joined cases C 402/05 and C-415/05P
27013/07, 17 October 2013. Kadi and another v European Union
Y Council [2008] OJ C 36.
Yumak and Sadak v Turkey [GC], no. Case 106/77 Italian Minister of Finance
10226/03, ECHR 2008. v Simmenthal [1978] ECR 629.
Z Nold v Commission [1974] EUECJ
Z. v Finland, 25 February 1997, Reports C-4/73, C-4/73.
of Judgments and Decisions 1997-I. Rutili v Ministre De L'Interieur [1975]
Zornić v Bosnia and Herzegovina, no. ECR 1219.
3681/06, 15 July 2014. Case 26/62 Van Gend en Loos v
Nederlanse Administratie der
ICJ Belastinge [1963] ECR 1.
Legal Consequences of the Construction
of a Wall in the Occupied Palestinian UK Supreme Court or House of Lords
Territory (Advisory Opinion) 2004. R. (Daly) v Secretary of State for the
Armed Activities on the Territory of Home Department [2001].
Congo (Democratic Republic of Congo R. (HS2 Action Alliance Ltd) v Secretary
v Uganda) [2005] ICJ Rep 168. of State for Transport [2014] UKSC 3.
 xix
Table of Cases  

R. v Horncastle [2009] UKSC 14, Russia in connection with the request

[2010] 2 AC 373. of the Ministry of Justice of the
R. v Special Adjudicator (ex parte Ullah) Russian Federation.
[2004] UKHL 26. Judgment of 14 July 2015 N 21-∏
Secretary of State for Defence v Al-Skeini verification of constitutionality of Art.
& Others [2007] UKHL 26. 1 of the Federal Law ‘On Ratification
Thoburn v Sunderland CC [2002] 4 All of the Convention for the Protection
ER 156. of Human Rights and Fundamental
Whaley v Lord Advocate [2004] SC 78. Freedoms and Its Protocols’, sections
1 and 2 of Art. 32 of the Federal
German Constitutional Court Law ‘On International Treaties of the
BVerfGE 3, 383 at 399 (1954). Russian Federation’, sections 1 and
Görgülü 2 BvR 1481/04 (14 October 4 of Art. 11, subsection 4 of section
2004) BVerfGE 111, 307 (Ger). 4 of Art. 392 of the Civil Procedural
Code of the Russian Federation’,
Supreme Court of Israel sections 1 and 4 of Art. 13,
HCJ 2056/04 Beit Sourik Village subsection 4 of section 3 of Art. 311
Council v The Government of Israel of the Arbitration Procedural Code
PD 24 [2004]. of the Russian Federation, sections
1 and 4 of Art. 15, subsection 4
Constitutional Court of Canada of section 1 of Art. 350 of the
R. v Oakes [1986] 1 SCR 103 [Oakes]. Administrative Court Proceedings
Code of the Russian Federation, and
Russian Constitutional Court subsection 2 of Section 4 of Art. 413
Judgment of 19 January 2017 No. of the Criminal Procedural Code of
1-∏/2017 in the case concerning the Russian Federation in relation
the resolution of the question of the to the request of the group of the
possibility to execute in accordance members of state Duma (parliament).
with the Constitution of the Russian
Federation the Judgment of the Constitutional Court of Italy
European Court of Human Rights Judgment No. 49 (26 March 2015) (It).
of 31 July 2014 in the case of OAO Judgments Nos 348 and 349 (24
Neftyanaya Kompaniya Yukos v October 2007) (It).
 Table of Legislation

American Convention on Human Rights Art. 3

Art. 27(1) Art. 4(1)
Art. 5
Austrian Criminal Code Art. 5(1)
Art. 209 Art. 6
Art. 7
Charter of Fundamental Rights of the
Art. 8
European Union
Art. 8(2)
Art. 15
Art. 9
Art. 25
Art. 9(2)
Art. 29
Art. 10
Art. 35
Art. 10(2)
Art. 52(3)
Art. 11
Charter of the United Nations Art. 11(2)
Art. 103 Art. 13
Art. 105 Art. 14
Art. 15
Constitution of the Czech Republic Art. 15(1)
Art. 10 Art. 15(2)
Art. 15(3)
Constitution of Ireland Art. 21
Art. 40.3.3 Art. 22
Constitutional Reform Act 2005 Art. 23
Art. 24
Council of Europe Art. 25
Resolution (99) 50 Art. 26(4)
Art. 3 Art. 29
Art. 9 Art. 30
Art. 34
Electoral (Amendment) Act 2006 Art. 35
Art. 35(3)(a)
European Convention on Human Rights
Art. 35(3)(b)
Art. 1
Art. 36
Art. 2

xxi
xxii  
Table of Legislation

Art. 41 Part II
Art. 43 Additional Protocol, Art. 1
Art. 46
Art. 46(1) Federal Constitutional Law on the
Art. 46(2) Constitutional Court of the Russian
Art. 46(3) Federation
Art. 46(4)
The Geneva Convention IV (1940)
Art. 47
Rule 147
Art. 53
Protocol 1 Art. 1, 2, 3 The Geneva Convention IV (1949)
Protocol 6 Art. 42
Protocol 11 Art. 19, 21(3), 46
Protocol 12 Art. 1 Human Rights Act 1998
Protocol 14 Art. 12, 26, 27, 28, 35(3) Section 2
(a), 35(3)(b) Section 3
Protocol 15
Protocol 16 International Committee of the Red Cross
(ICRC)
European Convention on Human Rights
Act 2003 Rules of Customary International
Humanitarian Law
European Council Rule 99
Council Regulation (EC) No. 44/2001
(22 December 2000) International Covenant on Civil and
Political Rights
European Court of Human Rights Art. 4
Rules of Court Art. 18
Rule 8
Rule 9A International Covenant on Economic,
Rule 15 Social and Cultural Rights
Rule 16 Art. 12
Rule 18A Parliamentary Assembly of the Council of
Rule 18B Europe (PACE)
Rule 24(2)(c) Resolution 1366(2004) as amended
Rule 25(2) by Resolution 1426 (2005) and
Rule 29 Resolution 1627 (2008)
Rule 47
Rule 47(6)a Slovak Constitution
Rule 61 Art. 11

European Economic Community Statute of the Council of Europe

Council Regulation (EEC) No. 990/93 Art. 8
(26 April 1993)
Rome Statute of the International
European Elections Act Criminal Court 1998
Art. 7(1)(e)
European Social Charter
Art. 4(1) Treaty on European Union
Art. 13(1) Art. 6
Art. 21 Art. 6(3)
 xxiii
Table of Legislation  

UN Charter Universal Declaration of Human Rights

Art. 103 Art. 11
Art. 25
UN Convention on the Elimination of
all Forms of Discrimination against Vienna Convention on the Law of Treaties
Women (CEDAW) Art. 26
Art. 2 Art. 27
Art. 29
UN Security Council Art. 31(1)
Security Council Resolution 1244 Art. 31(3)(b)
(1999)
 Introduction

When it was established, the European Convention on Human Rights (ECHR

or Convention) was a pioneering document. It instituted a structure for the
adjudication of rights claims that was genuinely ground-breaking. At the time,
in the 1950s, Europe was a very different place to what it is now: it was a
divided continent, ravaged by war and economically unstable, so concluding
the Convention was no mean feat. This is all the more notable when one takes
account of references in the Preamble to common values and heritage of the
European states that were original signatories.1
These common values and heritage underpin the rights protected in the
Convention, which can be broadly described as primarily civil and political,
and divisible into absolute rights (no derogation, limitation or exception pos-
sible), qualified rights and limited rights. The rights themselves are found both
in the core Convention document (i.e. the document as originally introduced)
and in the protocols. Some protocols were introduced for reasons of institu-
tional and procedural reform; others to introduce additional rights. All of them
form part of the constant process of evolution of the Convention, its institu-
tions, and its system of rights protection.
When originally introduced, the Convention outlined a set of rights to be
applied across the Contracting Parties and by which those Contracting Parties
would be held to account with, primarily vis-à-vis one another through inter-
state claims. The number of Contracting Parties was small, and whilst there
were some legal systemic differences between them (e.g. common vs. civil law,
codified vs. uncodified constitutions, dualist vs. monist systems) there were also
important commonalities such as commitment to the Rule of Law, democratic
governance, judicial oversight of government activity, and rights protection at
either legal or political levels in the domestic system. Whilst individual petitions
(i.e. complaints against states by individuals) were contemplated, the mech-
anism by which they would take place was optional (i.e. states could opt in

1
These were ‘political traditions, ideals, freedoms and the rule of law’.

xxv
xxvi  
Introduction

and accept the right of individual petition, and some did2) and the European
Court of Human Rights (ECtHR or Court) as we know it now did not exist.
Even acceptance of the jurisdiction of the Court was not mandatory, meaning
that Contracting Parties could sign the Convention but not be supervised by
the Court.3 Indeed, the Court did not become permanent until 1998;4 before
then, adjudication was split between the Commission and the Court (not sitting
permanently).
The Court becoming permanent was temporally aligned with significant
changes in Europe: the Cold War was over, and Eastern Europe was under-
taking a period of transition and transformation, including democratisation.
By then the European Union had also changed significantly: there were 15
member states with plenty more waiting in the wings, the Union had devel-
oped a jurisprudence of fundamental rights protection as general constitutional
principles of the European Union (EU),5 talk of introducing an EU constitu-
tion was rife, and the courts of the Council of Europe (ECtHR) and the EU
(Court of Justice) had developed a mutual recognition in terms of rights pro-
tection between the two legal systems upon which they adjudicated.6
These developments are significant for understanding the debates that we
will canvas and consider throughout this book. They gave rise to a host of chal-
lenges: the number of people protected by the Convention expanded enor-
mously to almost 800 million individuals, many of whom lived in states where
there were multiple and systemic difficulties with rights protection not least
because they were in the midst of post-Soviet transition. All of these people
could have recourse to Strasbourg, and the workload – and backlog – increased
enormously as a result. Furthermore, the common legal tradition and herit-
age mentioned in the Preamble to the Convention was no longer self-evident
among the states – finding a common heritage between, for example, Ireland,
Norway, Russia, Greece, Azerbaijan and Turkey is hardly a simple matter, and,

2
Individual petition was accepted by Ireland, Denmark and Sweden whilst Belgium, France,
Germany, Iceland, Italy, Luxembourg, the Netherlands, Norway, Turkey and the United
Kingdom opted out: Bates, The Evolution of the European Convention on Human Rights: From
Its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press,
2010), 101.
3
The Court’s jurisdiction was accepted by Ireland and Denmark, but rejected by Belgium,
France, Germany, Iceland, Italy, Luxembourg, the Netherlands, Norway, Turkey, Sweden, and
the United Kingdom: Ibid.
4
Protocol 11, Article 19, ECHR.
5
Case 26/62 Van Gend en Loos v Nederlanse Administratie der Belastinge [1963] ECR 1; Case
6/64 Costa v Ente Nazionale Energia Elettrica (ENEL) [1964] ECR 585; Case 11/70 Inter-
nationale Handelgesellshaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel
[1970] ECR 1125; Case 106/77 Italian Minister of Finance v Simmenthal [1978] ECR 629.
6
Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland [GC], no. 45036/98,
ECHR 2005-VI; Costello, ‘The Bosphorus Ruling of the European Court of Human Rights:
Fundamental Rights and Blurred Boundaries in Europe’ (2006) 6 Human Rights Law Review 87.
 xxvii
Introduction  

as will become clear throughout this book, it raises real challenges for the
Court in achieving the difficult task of (a) developing a common minimum
standard for rights protection, and (b) recognising diversity across the Council
of Europe.
Throughout this book, we will consider the ways in which the Court and
the Convention are challenged, and are successful (or not) in achieving these
key tasks and aspirations which we take to be the key functions of the Con-
vention, and thus a function of the Court that enforces it. The analysis will be
framed primarily through the theory of ‘legitimacy’, which we understand as
being capable of analysis by reference to consent, the moral purpose of human
rights, methods of adjudication, subsidiarity and effectiveness.
 CHAPTER 1

The Convention, the Court, and the Heart

of the Matter

Throughout this book, we will consider specific debates about the European
Convention on Human Rights (the Convention or ECHR), the rights it pro-
tects, and the ways in which states might be said to justifiably or legally infringe,
or otherwise limit, those rights. All of these specific debates, however, connect
with a larger question: is the Convention legitimate? This question is deceptively
complicated, not least because of the complexity of legitimacy as an analyti-
cal category. That is what we start with in this chapter, which in turn acts as a
gateway into key frameworks, concepts and actors that will help the reader to
engage with the debates we outline in the chapters that follow. Having consid-
ered the different frameworks for understanding legitimacy vis-à-vis the ECHR
and European Court of Human Rights (the Court or ECtHR), we go on to
outline the institutional framework of the ECHR, including the judiciary and
the Registry.

I. What is Legitimacy?
A good place to start with legitimacy is to understand it as being separable into
four broad categories: input legitimacy, output legitimacy, outcome legitimacy
and perceived legitimacy.
In simple terms input legitimacy relates to the processes by which decisions
are made. In the context of the Convention and its enforcement this includes
matters such as the mechanisms for the appointment of key actors (such as
judges), the independence enjoyed by those actors, procedural regularity in
the workings of the Court, mechanisms and processes of textual change (such
as the agreement of new Protocols), and the like. Output legitimacy, on the
other hand, relates to the quality of the outputs of the process itself, which, in
this context, means the judgments of the Court. In that respect, any legitimacy
analysis must look at both the methodological rigour and the quality of the
reasoning employed. In this respect we can usefully consider not only whether
justice was done in the particular case in question but also whether the case
develops, applies or reinforces a right in a way that is sensible and effective for
1
  
2 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

the Convention system and rights enjoyment generally, and not only for the
parties to the particular case in question. Outcome legitimacy is considered by
reference to the outcome of the Convention and case law per se – what are the
outcomes of the Convention’s application in real terms? In other words, is the
Convention effective by reference to both the Convention per se and the judg-
ments of the Court enforcing and implementing that Convention? Does it lead
to the rights violations identified by the Court being resolved, and to rights
protection generally being improved across the Council of Europe member
states?
Finally, perceived legitimacy is relevant – what are the perceptions of the
stakeholders such as Contracting Parties or public at large? In this respect, the
accuracy of those perceptions is not relevant. Rather, perceived legitimacy is an
important analytical framework because an institution that starts with a legiti-
macy deficit (because, for example, it is not a democratic institution or because
it is ‘foreign’) is likely to make decisions as to the extent to which it will exer-
cise its powers (e.g. be innovative, evolve the Convention standards, wade into
­sensitive areas with enormous rights implications but which are politically sen-
sitive, etc.) by reference to its understanding of its perceived legitimacy. In
other words, perceptions of legitimacy are likely to impact on the Court’s will-
ingness to flex its muscles (or not to do so), especially in sensitive contexts. In
terms of perceived legitimacy, the Court requires ‘diffuse support’, meaning
support for the institution itself, even if a state disagrees with some of the deci-
sions that it makes. Where a court enjoys diffuse support, stakeholders will
­perceive it as a credible decision maker whose decisions should attract compli-
ance even when individual judgments might be subject to some criticism. That
in turn requires them to see it as legitimate.

Sources of Legitimacy
The ECHR is an international treaty that is designed to impact, shape and
restrict what states can do in respect of the people who are within their juris-
diction.1 In other words, it has the capacity to reach into what was conven-
tionally thought to be the most sovereign of spaces – the domestic sphere – and
attempt to shape what happens there. Whilst that may seem to be a fairly stand-
ard feature of human rights law today (and it is), it was truly remarkable in the
late 1940s and early 1950s when the Convention was introduced. Remember
that the Universal Declaration on Human Rights was only adopted in 1948,
and that core instruments of international human rights law such as the Inter-
national Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights were not introduced until 1966.
Thus, at the time of its coming into force, the ECHR was purporting to do
something truly extraordinary: to make individuals the subjects of international

1
Article 1, ECHR.
 The Convention, the Court, and the Heart of the Matter 3

law, to shape the state’s domestic activities, and to have a system of international
adjudication to make states accountable should they fail to adhere domestically
to the principles they had signed up to internationally. Given this context, and
given the fact that many claims of illegitimacy that are currently made against
the Court and Convention and which will be discussed throughout this book
are thinly disguised claims of unjustified interference in the domestic sphere,
the question of the source of the Convention’s legitimacy is an important one.
Here we canvass six possible sources that will be returned to – implicitly and
explicitly – in the debates and discussions considered in this book.

a. Consent as a basis for legitimacy

As with all international treaties, one of the core sources for the legitimacy of
the ECHR is the consent of states. International law is largely built on this core
assumption that (a) all states can, and (b) all states do consent to the interna-
tional rules to which they are bound. Of course, we now know that in many
ways this ‘consent’ trope is a myth: for example, if a state wants to be a member
of the European Union it must uphold human rights standards, which ordinar-
ily means that it needs to ratify the ECHR. If that state is economically weak,
politically unstable and democratically fragile it may well consider that it needs
to join the European Union so much that it will simply do what the regulations
require of it, including becoming a signatory to the ECHR. Here we might
question the extent to which the state has truly consented the Convention,
rather than being coerced into joining it. But from the perspective of orthodox
international law this is somewhat irrelevant. It is assumed that all states enjoy
sovereign equality; therefore, all states consent to be bound by the treaties to
which they sign up, including the ECHR.
There are at least two reasons why consent alone is an inadequate account
of how and why the Convention and its system enjoy legitimacy. The first
relates to the costs of withdrawing consent. Denouncing the Convention and
leaving the Council of Europe brings with it serious damage to reputation,
which many states would not want to suffer, and some states might not be
able to bear. In these circumstances a state may consider it less damaging to
simply ignore an adverse judgment of the ECtHR, or half-heartedly engage in
quasi-implementation, or routinely fall below the Convention standards for as
long as possible than to actually leave the Convention. Thus, whilst consent
is the most basic ground of legitimacy and may well keep the system together
in formalistic terms, it is unable to ensure the effectiveness of the Convention
system on its own.
The second reason why consent is an inadequate basis for legitimacy on
its own is the distance between what a state might originally have consented
to and what the Convention now means, largely through the innovations of
the Court in its judgments. In order to keep the ECHR up to date, practi-
cal and effective, the ECtHR uses techniques such as evolutive interpretation
(discussed in Chapter 4) to develop – some might say ‘invent’ – the meaning
of the Convention, sometimes in directions that the signatories would never
4 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

have envisaged at the time they originally consented to the Convention. Whilst
one might argue that states consented both to the Convention ‘as text’ and
the Convention ‘as applied’ by the Court, it is clear that it is some states’ per-
ception that the Convention now is drastically different in meaning, reach and
intention than the Convention they signed up to. Accordingly, this calls into
question how far ‘consent’ takes us as a source of legitimacy in respect of the
Convention and, perhaps especially, of the Court.

b. Moral purpose as a basis for legitimacy

Most would agree that the protection and promotion of human rights is, in and
of itself, a desirable or morally admirable ‘end’ so that actions done in pursuit
of that enjoy at least a presumption of legitimacy. Recall the context in which
the Convention was introduced: drafted, agreed upon and ratified in the imme-
diate aftermath of a war that had ‘shocked the conscience of mankind’ and
ravaged the continent of Europe, this new human rights regime was intended
and designed to protect against the future emergence of any analogous forms
of totalitarianism, barbarism and state-inflicted cruelty. Seen in this light, there
is an argument that the protection of human rights through application of
the Convention gives the Court and the Convention a certain moral purpose,
character or nature.2 The special purpose of human rights, and the commit-
ment to their universal and equal protection, seen in this light, might be said
to legitimate the Court’s interference with decisions taken by sovereign states.
Indeed, in many cases the Court has referred to the Convention’s particular,
rights-protecting character as underpinning its decision to take an evolutive, or
otherwise, innovative approach to the development of Convention law.3 Cer-
tainly, there are indications of such a view in the Preamble to the Convention
itself, which states that fundamental freedoms are the foundation of justice and
peace in the world. Of course, this is not to say that the mechanism by which
the Convention protects human rights is necessarily either the morally prefera-
ble one or, even, morally defensible.
As will become clear throughout this book, there are issues about which
there is profound moral disagreement across the Council of Europe, and
which raise questions of the content and applicability of rights.4 Abor-
tion is, perhaps, an obvious example,5 but so too are the putative right of
people to marry a person of the same sex,6 the use of assisted reproductive

2
Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford
University Press, 2007).
3
See, for example, Soering v the United Kingdom, 7 July 1989, Series A no. 161, para. 87.
4
Waldron, Law and Disagreement (Oxford University Press, 1999).
5
See, for example, A, B and C v Ireland [GC], no. 25579/05, ECHR 2010; Vo v France
[GC], no. 53924/00, ECHR 2004-VIII; Tysia˛c v Poland, no. 5410/03, ECHR 2007-I.
6
See, for example, Chapin and Charpentier v France, no. 40183/07, ECHR 194; Oliari and
Others v Italy, nos 18766/11 and 36030/11, 21 July 2015; Schalk and Kopf v Austria, no.
30141/04, ECHR 2010.
 The Convention, the Court, and the Heart of the Matter 5

technologies,7 the right to choose the time and means of one’s death8 and
so on. These are questions where there are both deeply held but contrasting
moral positions, and on which human rights law does not necessarily offer a
simple, single, clear ‘answer’. When the Court, then, is asked to adjudicate
upon them – as it is, from time to time – it must tread through murky waters
and make decisions which, for many, may be deeply immoral or perhaps even
amoral. In such cases there are strong arguments for saying that the Conven-
tion and the Court have no prima facie morality-related legitimacy in assert-
ing, applying and promoting a human rights position; instead, for many, such
questions are ones on which democratically elected and accountable politi-
cians ought to make policy, and translate that policy into law.
Quite apart from these cases in which there is no agreed moral position –
or notion of what is ‘right’ or ‘wrong’ – there are further question marks
about the extent to which the Convention and the Court enjoy some form of
morality-based legitimacy. The Court primarily protects so-called civil and
political rights, and pays remarkably little attention to socio-economic, cul-
tural and group rights. Thus, whilst the Convention protects, for example, the
right to a fair trial, to freedom of expression, and to a private life, it does not
explicitly protect a right to health, a right to food, a right to an adequate stand-
ard of living or a right to be free from poverty. It does not expressly recognise
group and cultural rights, and it is constructed on a decidedly individualistic
basis. One might question whether such a charter can really protect human
rights in a way that not only prevents the state from engaging in cruelty of
various forms, but also in a way that enables people to truly flourish.9 We will
see in Chapter 7 that some of these apparent substantive shortcomings have
been mitigated through both the jurisprudence of the Court and the develop-
ment of the European Social Charter, but still one might argue that the ECHR
simply reinforces socio-economic inequalities – or at least does nothing posi-
tively to address them – and thus approaches human rights within a problem-
atic, unequal and statist paradigm. As a result, one might justifiably question
whether the Convention’s approach to rights protection really does endow it
with sufficient moral purpose from which to derive legitimacy.
There are further accusations of exclusion or inadequacy that might
be levied against the Convention. For example, there is a compelling argu-
ment to be made that the Convention, and its interpretation and application
by the ECtHR, fail adequately to address the needs and rights of historically

7
See, for example, Parrillo v Italy [GC], no. 46470/11, 27 August 2015; Costa and Pavan
v Italy, no. 54270/10, 28 August 2012; Evans v the United Kingdom [GC], no. 6339/05,
ECHR 2007-I.
8
See, for example, Koch v Germany, no. 497/09, 19 July 2012; Haas v Switzerland, no.
31322/07, ECHR 2011; Pretty v the United Kingdom, no. 2346/02, ECHR 2002-III.
9
See, for example, Egan, Thornton and Walsh, The European Convention on Human Rights:
A Socio-Economic Rights Charter? (Bloomsbury, 2014); Baderin and McCorquodale, Economic,
Social, and Cultural Rights in Action (Oxford University Press, 2007), 241–256.
6 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

marginalised and subjugated groups such as women, the Roma, disabled

people and religious minorities.10 If this is the case, one might argue that the
ECHR cannot necessarily draw on the claim of moral purpose to legitimate its
overall operation.
Thus, whilst the moral purpose of rights protection provides some basis for
a claim of legitimacy on the part of the Convention and its application by the
Court, there are sufficient question marks about the morality of the Court’s
positions, and the inadequacy or incompleteness of the Convention system, for
this to be an insufficient source of legitimacy in itself.

c. Method as a basis for legitimacy

We have already noted that input legitimacy relates to the processes by which
decisions are made, so that the methods by which the ECtHR comes to its deci-
sions might also be a source of legitimacy for the Convention (as interpreted
and applied by the Court) and for the Court itself. In this account, even an
outcome on which there is, for example, profound moral disagreement might
gain legitimacy from the process through which it has been reached. Thus, for
the ECtHR ensuring consistency, coherence, legal certainty and predictability
is key to making a claim for legitimacy based on the method of decision making
that is used. This is not particular to the Strasbourg Court. Indeed, ensuring
that there is a clear and well-reasoned basis for the decision reached by a Court,
and ensuring consistency from one case to another, as well as applying a system
of precedent (particularly in a common law system) are seen as elemental to
judicial claims of legitimacy.11
Of course, the Court is not formally bound by any strict system or expec-
tation of ‘precedent’ so to speak,12 but it does tend to refer to its previous
judgments in its case law, and it will depart from its existing position only in
exceptional cases. Thus, even without a formal system of precedent, an informal

10
See, for example, Anagnostou and Millns, ‘Individuals from Minority and Marginalized
Groups before the Strasbourg Court: Legal Norms and State Responses from a Comparative
Perspective’ (2010) 16 European Public Law 393; Martínez Guillem, ‘European Identity:
Across Which Lines? Defining Europe Through Public Discourses on the Roma’ (2011)
4 Journal of International and Intercultural Communication 23; Peroni and Timmer,
‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights
Convention Law’ (2013) 11 International Journal of Constitutional Law 1056; Harvey,
‘Protecting the Marginalised: The Role of European Convention on Human Rights’ (2000)
51 Northern Ireland Legal Quarterly 445.
11
These are the basic requirements of the procedural legitimacy. See Gribnau, ‘Legitimacy of
the Judiciary’ (2002) 6 Electronic Journal of Comparative Law, Dzehtsiarou, ‘Does Consensus
Matter? Legitimacy of European Consensus in the Case Law of the European Court of Human
Rights’ (2011) Public Law 534, 539.
12
In Micallef v Malta the Court stated that ‘[w]hile it is in the interests of legal certainty, fore-
seeability and equality before the law that the Court should not depart, without good reason,
from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and
evolutive approach would risk rendering it a bar to reform or improvement’ Micallef v Malta
[GC], no. 17056/06, ECHR 2009, para. 81.
 The Convention, the Court, and the Heart of the Matter 7

expectation that the ECtHR will follow its past jurisprudence operates. Indeed,
as further discussed below, one of the ways in which a case can make its way
to the Grand Chamber of the Court is where it does, or where it might, intro-
duce an inconsistency or incoherence in the jurisprudence of the Court. Con-
sistency and coherence in its case law is, then, something to which the Court
gives close attention.
The method and quality of reasoning are also important to claims of input
legitimacy in the ECtHR, just as for other courts. Thus, the Court provides
the reasons for its decisions in a case, and, in doing so, tends to refer not only
to its past judgments but also to the judgments of other courts and tribunals,
to relevant reports, to states’ practice, and, sometimes, to scholarly work.13 Of
course, like most courts, it is occasionally criticised for the quality of its judg-
ments, just as it is sometimes praised, but it is worth noting that the sheer
workload facing the Court almost certainly creates significant challenges in
ensuring that a high quality of reasoning is expressed in writing for every case
that is decided before the Court. The Court’s resources are extremely limited:
its budget (which covers all non-capital costs from judicial salaries to the Reg-
istry) for 2017, for example, was €71 million;14 by contrast the budget for the
US federal judiciary in 2015 was almost $7 billion.15 This gives some indica-
tion of how stretched the resources in the Court are, and, thus, how limited
the support for judgment writing must be in terms of both time (for judges and
Registry lawyers) and research support, so that the crucial administrative task
of finding an appropriate balance between the quality of reasoning and speed
of operations is a difficult one indeed.
Furthermore, the Court has developed, and applies, particular approaches
to reasoning in its case law, which have the effect (and potentially also the
intention) of enhancing the legitimacy of its operations, its interpretation and
application of the Convention, and the legitimacy of the entire ECHR system
of rights protection. These techniques – such as European consensus, the
margin of appreciation, and extensive use of comparative law – are important
ways in which the Court not only shows that it reasons its decisions carefully
and rigorously, and takes states’ national dynamics into some account, but also
that it is willing to exercise self-restraint, and that its decisions can be bench-
marked against those of other courts. We return to these questions of method
in Chapters 4 and 5.
Transparency is another feature of judicial method that can enhance the
input legitimacy of a court. Unlike democratically elected institutions, courts
are not accountable to the public, or at least not inasmuch as they can be voted
out of office, for example. In many ways this is to ensure the independence and

13
The examples are multiple. For analysis, see Dzehtsiarou, ‘What Is Law For the European
Court of Human Rights?’ (2018) Georgetown Journal of International Law (forthcoming).
14
ECHR Budget, available at http://www.echr.coe.int/Documents/Budget_ENG.pdf.
15
Annual Report. Budget, available at http://www.uscourts.gov/statistics-reports/
fundingbudget-annual-report-2015.
8 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

impartiality of judges. This lack of accountability can be compensated for by

transparency in the adjudicatory process. Although deliberations of the judges
are held behind closed doors, the hearings, when held, are open. In almost all
cases the procedure is written; oral hearings are only organised for cases that
are being heard in the Grand Chamber and a very small number of Chamber
cases. The hearings are webcast on the Court’s website. Almost all documents
submitted by the parties and third parties are accessible by the public. Only
internal judicial documents are confidential.

d. Subsidiarity as a basis for legitimacy

The ECtHR is a subsidiary international court. This means that disputes about
compliance with the Convention should first be dealt with in national courts,
and only come to Strasbourg once domestic remedies have been exhausted (we
return to this in Chapter 3). This is an important principle in the Convention: the
Court is not an appellate court and it is not a substitute for national legal systems.
Furthermore, its subsidiary character is a key driver behind the Court recognis-
ing that Contracting Parties may enjoy some variation in their practices, and to
decide some matters of policy not clearly regulated by the Convention for them-
selves provided minimum standards of rights protection are complied with (we
discuss this further in Chapter 5). Adhering to its character as a subsidiary court
is an important source of the Court’s, and thus the Convention’s, legitimacy.
Indeed, so important is this that Protocol 15 will add explicit mentions of subsidi-
arity and the margin of appreciation to the Preamble when it comes into effect.
Of course, the principle of subsidiarity can be used to underpin claims that
the Court should leave states to do as they wish; that it should apply less scrutiny
to states’ human rights protection than it sometimes does. This same concern
has been expressed by the former President of the ECtHR, Dean Spielmann,
who said, ‘I sometimes detect, a sense that subsidiarity is code for something
else, for less scrutiny from Strasbourg. That it means taking the “self” out of
judicial self-restraint.’16 This points to the concern of some that states’ expec-
tations of ‘subsidiarity’ might be that the Court would simply ‘stay out’ of
sensitive domestic matters; a position that is, of course, quite at odds with the
basic idea of the Court applying the Convention, and the Convention being an
effective protection of individual rights. This indicates some of the difficulties
with pointing to subsidiarity as a source of legitimacy: it means different things,
and creates different expectations, in different stakeholders.
Subsidiarity can be both procedural and substantive. Procedurally, we know
that subsidiarity means the Court can only consider a case once domestic rem-
edies have been exhausted. This rule, contained in Article 35 and considered in
Chapter 3, means that the national institutions have the opportunity to resolve
a Convention incompatibility without the need for international supervision,

16
Spielmann, ‘Whither Judicial Dialogue?’, available at http://www.echr.coe.int/Documents/
Speech_20151012_Spielmann_Sir_Thomas_More_Lecture.pdf, 10.
 The Convention, the Court, and the Heart of the Matter 9

and that the Convention is applied domestically and thus becomes embed-
ded in domestic law through practice. Controversy sometimes arises when
the Court allows an applicant to bypass this rule because it establishes that
there are no effective remedies to protect the applicant’s rights in the domestic
system.17 This exception cannot undermine the fact that as a rule admissibility
gives effect to procedural expectations of subsidiarity.
Understood as a substantive concept, subsidiarity might be said to mean
that the Court should not only follow the national system in procedural and
chronological terms but also take into account the substance and process of
decisions made on the national level in reaching its own judgment. Although
this does not mean that the Court must blindly follow the national decision
makers, what it does likely mean is that the Court is expected to recognise
national decision makers as having a high level of knowledge of the domestic
situation, law, politics and risks and, thus, to grant at least some deference to
those national decisions. Indeed, as we will see in Chapter 5 in particular, that
is frequently the case.

e. Effectiveness as a basis for legitimacy

We have already mentioned that output legitimacy is considered by reference
to the outcome of the Convention and case law per se, i.e. it concerns whether
or not the Convention actually ‘works’. Where a system and instrument are
effective, this adds to their legitimacy, particularly among stakeholders who
might be highly reliant on the institution and system in question. Thus, effec-
tiveness is a key indicator and source of legitimacy for the Convention and its
system of enforcement.18 However, in order to understand whether something
is effective we have to know what its purposes and objectives are and, in rela-
tion to the Convention, this is something about which there is some disagree-
ment. For some, the Convention exists now for the same reasons as it existed
when it was first introduced: to act as a ‘beacon to those at the moment in
totalitarian darkness […] [to] give them a hope of return to freedom’.19 On
this reading, the Convention is a safeguard in the most extreme of circum-
stances and not, necessarily, a set of human rights standards that can and do
reach into every part of the state’s domestic and, sometimes, overseas activi-
ties. However, that vision of the Convention’s purpose reflects a limited and,
arguably, outmoded concept of what human rights instruments are and are

17
See, for example, O’Keeffe v Ireland [GC], no. 35810/09, ECHR 2014. For discussion
on exhaustion of domestic remedies in this case see O’Mahony, ‘Subsidiarity of ECHR in
O’Keeffe v. Ireland: A Response to Hardiman’, Constitutional Project @ UCC, 5 September
2014, available at http://constitutionproject.ie/?p=353.
18
Dothan, Reputation and Judicial Tactics: A Theory of National and International Courts
(Cambridge University Press, 2015).
19
Speech of Sir David Maxwell-Fyfe on the occasion of signing the European Convention on
Human Rights, 4 November 1950. As quoted in Bates, The Evolution of the European Con-
vention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human
Rights (Oxford University Press, 2010), 5.
10 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

for. It also recognises only a certain kind of systemic oppression as needing or

justifying the intervention of international standards.
We might say that there are still people in Europe who live in a kind of
totalitarian darkness, for whom the Convention truly is a beacon of light:
LGBTQI people in parts of the Continent who are routinely persecuted for
as much as daring to hold hands in the street; Roma who are not permitted
to educate their children in a culturally appropriate manner; Muslim women
who are criminalised for their decision to dress in what they consider to be reli-
giously appropriate ways; asylum seekers who are held in sub-standard deten-
tion centres; victims of trafficking and sexual exploitation; women for whom
exercising reproductive autonomy is a criminal offence; suspected terrorists
who are detained, questioned and deported without trial. Our continent of
Europe is rife with smaller and larger instances of oppression, abuse, detention
and rights violation. For many the ECHR is not only a pathway to justice but,
in fact, their only hope of it.
Seen this way, effectiveness is not only about ensuring that there is no wide-
spread totalitarianism in Europe, but also that people can and do rely on the
Convention (in domestic law, in their everyday interactions with the state,
and ultimately in litigation in Strasbourg) to help them to challenge and, ulti-
mately, repress these forms of abusive state power. Whether or not the Con-
vention, and its application by the ECtHR, ‘works’ is both in the eye of the
beholder and a key source of perceived legitimacy.

II. How Does the Court Operate?

Establishment of the ECtHR in Strasbourg was a revolutionary event in inter-
national law, which changed the dynamic and the relations between individuals
and states. Never before could individuals bring a complaint to an international
body and demand that state authorities provide justifications for interfering
with their human rights. This presented both opportunities and challenges to
the Court. When states agreed to the jurisdiction of the Court, it was clear that
they were consenting to some external judicial oversight with a resultant reduc-
tion in their right to simply rebut any criticisms of their treatment of their own
people with claims of ‘sovereignty’, but the extent to which the Court would
develop its jurisprudence, and the reach of the Convention into states’ internal
affairs, could not have been predicted. The ECtHR has become an incredibly
important judicial institution, not only for the Council of Europe’s member
states, but also internationally, and its judgments have major repercussions in
domestic law and politics quite beyond what appears to have been contem-
plated at the time of its establishment.20 Now, quite contrary to what might

20
Keller and Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal
Systems (Oxford University Press, 2008); Motoc and Ziemele, The Impact of the ECHR on
Democratic Change in Central and Eastern Europe: Judicial Perspectives (Cambridge University
Press, 2016).
 The Convention, the Court, and the Heart of the Matter 11

have been expected,21 the Court is permanent, inter-state cases are very rare,
and individual complaints are plentiful. There is a sense among some member
states that what they signed up for and what the Court has become are vastly
different propositions. As we will see throughout the book, this is arguably
the crux of some of the major tensions between, for example, the UK and the
Court. But how did this state of affairs come about? And how does the ECtHR
actually work?

History and Development of the Convention

As first designed, the ECHR system comprised three main organs supervis-
ing compliance with the ECHR in Strasbourg. First, there was the Euro-
pean Commission of Human Rights. When an applicant wanted to lodge a
­complaint he or she would first submit it to the Commission, which would
consider it and lodge it before the Court only if it deemed it to be well-
founded. It outlined its reasons for these decisions in written opinions. Where
that happened, the case would be considered by the ECtHR, which was not a
permanent body but met a number of times a year in Strasbourg. Just as now,
the judgments of the Court were legally binding on the respondent party or
parties to the case. The third institution was the Committee of Ministers,
made up of representatives of each of the member states of the Council of
Europe. The Committee of Ministers had some competence to resolve cases
politically, but its main role was to supervise the implementation of decisions
of the ECtHR.22

• Protocols 11 and 14

Throughout its history, the Strasbourg system of human rights protection has
been reformed many times. Significant reforms are done through the adoption
of Protocols, which can be substantive or procedural. Substantive protocols
add human rights (for example, Protocol 1 added the right to private prop-
erty (Article 1), the right to education (Article 2) and the right to free elec-
tions (Article 3) into the Convention) or substantive guarantees (for example,
Protocol 6 prohibited the death penalty). Procedural protocols amend the
structure and the working methods of the Court. In institutional terms, what
was probably the most fundamental reform of the Convention was brought
about by Protocol 11, which came into force in 1998. It created the Strasbourg

21
Lord McNair: ‘it is tolerable that her Majesty’s Government, having signed and ratified the
European Convention of 1950, should adopt the attitude that our laws and our administration
of justice are so perfect and so superior to those of our fellow signatories that it is unnecessary
for the machinery of the Convention to apply to the United Kingdom’ as quoted in Bates, The
Evolution of the European Convention on Human Rights (above, n. 19), 186. See also Schabas,
The European Convention on Human Rights: A Commentary (Oxford University Press, 2015).
22
Protocol 11, Article 46, ECHR.
12 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

system of human rights protection as we know it today, and was introduced in

response to the dramatic geopolitical changes in Europe and the expansion in
members of the Council of Europe.
The key change introduced in Protocol 11 was abolition of the Commis-
sion. This meant that applicants could bring their complaints directly to the
Court, rather than going through this ‘filtering’ system. Accordingly, the Court
became a permanent institution23 with full-time judges.24 The right of individ-
ual petition and the jurisdiction of the Court became mandatory, meaning
that, from that point on, all states ratifying the Convention had to accept the
jurisdiction of the ECtHR, and all those within the jurisdiction of those states
could make individual petitions to it. Jurisdiction of the Court and the right of
individual petition had to be specifically agreed to by the states before Proto-
col 11 came into force.
Following on from this institutional reform and the expansion of the
membership of the Council of Europe, the number of individual petitions
to the Court sky-rocketed. By 2011–2012 there were more than 150,000
pending applications to the Court,25 and, in 2013, 65,90026 new applications
were lodged. The Court was suffocating under this workload. For some,
the Court was simply a victim of its own success; since its establishment it
had become well known to people across Europe and was seen as the route
to justice by people whose domestic legal system had, in their view, failed
them.27 Others were of the opinion that the number of pending applications
reflected the failure of Contracting Parties to give proper effect to the Con-
vention and the Court’s judgments in their domestic legal systems, particu-
larly given the high number of repetitive (or ‘clone’) cases coming before
the Court.28 These were cases relating to a question of legal interpretation
that had already been established in the Court’s jurisprudence, but either the
state in question had failed to resolve the issue, or other Contracting Parties
had not adjusted their legal systems to take account of the Convention prin-
ciples laid down in judgments of the Court in respect of which they were not
respondents.

23
Ibid., Article 19.
24
Ibid., Article 21(3).
25
‘The ECHR in Facts and Figures’ (2011), available at http://www.echr.coe.int/Documents/
Facts_Figures_2011_ENG.pdf.
26
‘The ECHR in Facts and Figures’ (2013), available at http://www.echr.coe.int/Documents/
Facts_Figures_2013_ENG.pdf.
27
See, for example, Leach, Taking a Case to the European Court of Human Rights (3rd edn,
Oxford University Press, 2011), and Buyse and Hamilton (eds), Transitional Jurisprudence
and the ECHR: Justice, Politics and Rights (Cambridge University Press, 2011).
28
See, for example, de Londras, ‘Dual Functionality and the Persistent Frailty of the European
Court of Human Rights’ [2013] European Human Rights Law Review 38, and Dzehtsiarou
and Greene, ‘Restructuring the European Court of Human Rights: Preserving the Right of
Individual Petition and Promoting Constitutionalism’ [2013] Public Law 710.
 The Convention, the Court, and the Heart of the Matter 13

Whatever the cause (and failure to give effect to the Convention in domestic
law is something we return to in Chapter 2), all of this meant that the Court
was in crisis: it simply did not have the capacity to deal with this volume of
applications. The response was Protocol 14, which was opened for ratification
in 2004. This allowed for procedural changes, including single-judge adju-
dication29 for the speedy rejection of clearly inadmissible applications.30 The
drafters of this Protocol asked the Contracting Parties to ratify it urgently; the
system was creaking under the pressure of huge numbers of cases and needed
reform. However, it required ratification by all Contracting Parties before it
could come into effect, and Russia, in particular, dragged its heels.31 Indeed,
the final ratification (from Russia) did not come until 2010, at which point
Protocol 14 came into force.
The changes introduced in 2010 were far less radical than had been
brought about by Protocol 11. It allowed single judges to reject clearly
inadmissible applications, where before that required a committee of three
judges.32 Three-judge committees were then given a new competence to
decide on repetitive or ‘clone cases’ on the basis of well-established case
law.33 Overall, then, Protocol 14 was primarily concerned with streamlin-
ing, whereas Protocol 11 had effectively retooled the entire Strasbourg
machinery.

• The Rules of Court

Although Protocols are the means of treaty change within the Convention
system, they are not the only way in which the working methods of the Stras-
bourg institutions can be reformed. Often the Court itself spearheads impor-
tant reforms through changing its working methods and, particularly, its Rules
of Court. The Rules of Court lay down the procedural workings of the Court
and are not ratified by the Contracting Parties. Whilst the fact that these Rules
come from the Court itself might be said to endow them with somewhat less
legitimacy than the Convention and its Protocols, they have a considerable
advantage over formal Treaty change because they can be both flexibly applied
and speedily amended. They can also assist the Court in developing and apply-
ing methods for the prompt handling of cases and, indeed, the reduction of
the Court’s backlog. Stricter or looser application of the Rules can reduce or
increase the number of pending applications, as illustrated by the working of
Rule 47.

29
Protocol 14, Article 26, ECHR.
30
Ibid., Article 12.
31
See, for example, Bowring, ‘Russia and Human Rights: Incompatible Opposites?’ (2009) 1
Gottingen Journal of International Law 257.
32
Protocol 14, Article 27, ECHR.
33
Ibid., Article 28.
14 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

This Rule simply lays down the format in which an application to the Court
is to be made and makes clear what pieces of information must be included.
However, for a very long time the Rule was not strictly applied, so that applica-
tions which did not conform with Rule 47 were still registered with the Court.
Since 2014 this has changed. Now the Court has begun to apply this Rule
more rigorously and has stopped registering applications that do not comply
with it.34 This has had a dramatic effect on a number of applications registered
by the Court. Non-registration very often means that the Court will never have
to deal with that application again as the applicant often cannot resend the
application in the correct format within the time limit of six months. Although
one cannot prove an exact link between the strict application of Rule 47 and
the number of registered applications to the Court, the statistics do show a
temporal correlation between the two. In 2013 65,800 applications were reg-
istered with the Court. In 2014 it was 56,200 (a reduction of 15 per cent) and
in 2015 it was 40,650.
Reform of working methods, as well as decisions about the strategic direc-
tion of the Court, are carried out within the Court’s own internal structures:
the Plenary Court, the Bureau, and the Presidency. The Plenary Court con-
sists of all current Judges of the Court. It elects the President and other senior
judges from its membership.35 It also elects the Registrar and Deputy Registrar
of the Court,36 and adopts the Rules of Court and other significant changes in
the Court’s procedure. The Bureau consists of the most senior Judges of the
Court37 and seems to be one of the most important institutions of the Court,
determining its everyday administration. According to the Rules of Court, the
President directs the work and administration of the Court. The President also
represents the Court and is responsible for its relations with the authorities of
the Council of Europe. These internal structures play a vital role in the opera-
tion of the Court and the conduct of its judges. For example, voted on by the
Plenary Court, the Resolution on Judicial Ethics allows the President to deter-
mine its application in individual cases, and he or she can consult the Bureau.
Changes in institutional form and working methods have certainly helped the
Court to tackle its backlog. From a high of 99,900 in 2013, it has been reduced
to 64,850 in 2015. However, further reform seems to still be required. For this,
Protocol 15 has been drafted and opened for ratification. Whilst not yet in force
at the time of writing, it receives detailed attention in Chapter 3.

34
See, for example, Wagner, ‘Don’t Mess Up Your European Court of Human Rights
Application … A New Rule’ (UK Human Rights Law, 11 Dec. 2013), available at https://
ukhumanrightsblog.com/2013/12/11/dont-mess-up-your-european-court-of-human-rights-
application-a-new-rule, and Buyse, ‘Stricter Rules for Lodging Complaints at the European
Court’ (ECHR Blog, 12 Dec. 2013), available at http://echrblog.blogspot.co.uk/2013/12/
stricter-rules-for-lodging-complaints.html.
35
Rule 8, ‘Rules of Court’, ECHR.
36
Ibid., Rules 15–16.
37
Ibid., Rule 9A.
 The Convention, the Court, and the Heart of the Matter 15

Structure and Procedure

The judiciary of the ECtHR comprises 47 judges (one from each Contract-
ing Party) who are resident in Strasbourg and work full-time in the Court. As
a consequence of Protocol 14, the Court can sit in four different formations:
single judge, Committees of three judges, Chambers of seven judges, and a
Grand Chamber of 17 judges. The formation of the Court that considers an
application depends largely on (a) whether it is admissible and how complex
the admissibility decision is, and (b) the complexity of the merits of the case.
The admissibility decision is essentially a question of whether the case complies
with a formal set of criteria established by the Convention. Some of these are
quite technical (for example, every applicant should be a ‘victim’ of the alleged
rights violation38), whereas others seem more substantive (for example, that
an application is not manifestly ill-founded39). In contrast with judgments on
the merits, decisions of inadmissibility are rarely published and often scarcely
reasoned.
In practice, a Registry lawyer usually decides the formation of the Court to
which a case is initially assigned. So, where the preliminary Registry decision is
that the application is clearly inadmissible it is assigned to a single judge forma-
tion. A judge should not receive any such application from the state of which
she is a member, and so judges who are sitting in single-judge formations are
assigned particular states. The obligations of a single judge rotate among the
members of the Court. This points to an important issue, and one which we
return to in Chapter 3: in practice, it is a Registry lawyer who is deciding on
admissibility in these cases, with the formal decision then taken by the Court
sitting in a single-judge formation. Certainly, if that single judge does not agree
with the Registry determination she can refer it to a larger formation of the
Court, but this shows that seemingly administrative decisions in the Registry
can carry serious weight in the Court per se and effectively determine the fate
of an application. More complex questions as to admissibility are decided by a
Committee, Chamber or Grand Chamber.
Administratively the Court is further divided into five Sections, two with
10 judges and three with nine. Sections are established for three-year periods,
should be balanced in terms of gender and geographic representation, and
should reflect the different legal systems among the Contracting Parties.40 Each
Section has a President who oversees case management within the Section, and
each country is assigned to a particular Section.

38
Article 35(3)(b), ECHR. See also Vogiatzis, ‘The Admissibility Criteria under Article
35(3)(b) ECHR: A “Significant Disadvantage” to Human Rights Protection?’ (2016) 65
International and Comparative Law Quarterly 185.
39
Article 35(3)(a), ECHR. See also Gerards, ‘Inadmissibility Decisions of the European Court
of Human Rights: A Critique of the Lack of Reasoning’ (2014) 14 Human Rights Law Review
148.
40
Rule 25(2), ‘Rules of Court’ (above, n. 35).
16 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

For a variety of reasons some cases end up in the Grand Chamber, which
with its 17 judges is the most authoritative formation of the Court. Not only
is the Grand Chamber the largest formation, but it also always contains its
most senior judges: the President, the Vice-Presidents of the Court, and the
Presidents of the Sections. The Grand Chamber hears a very small number of
cases per year when one considers the workload of the Court overall. Ordi-
narily, it only hands down no more than 30 judgments every year, although
there is no strict limit on the number of cases it can hear. There are only two
routes, though, by which an individual complaint can end up in the Grand
Chamber.
The first is that a party to the case makes an application (known as a referral)
under Article 43 of the Convention within three months of a Chamber judg-
ment. A panel of five judges will then decide on whether the case raises a serious
question as to the interpretation or application of the Convention, or a serious
issue of general importance; if so it refers the case to the Grand Chamber for
new consideration. Very few referral applications under Article 43 are success-
ful. The second route to the Grand Chamber is by ‘relinquishment’ under
Article 30. This happens when the Chamber dealing with the case decides that
the Grand Chamber should determine it instead of the Chamber itself. Accord-
ing to Article 30, this should happen where the case raises a serious question of
interpretation of the Convention or where the resolution of a question might
be inconsistent with a judgment previously decided by the Court, but relin-
quishment is only possible where the parties to the case consent to it. Where
that happens, all judges sitting in the Chamber case will form a part of the
Grand Chamber in this case.41 Once introduced, Protocol 15 will remove the
parties’ right to object to a decision to relinquish a case to the Grand Chamber.

III. How Are Judges Appointed?

It is sometimes said that the Judges of the ECtHR are nothing more than une-
lected bureaucrats.42 However, the reality is quite different. These judges are
all experienced lawyers (some as practitioners, some as judges in their home
jurisdictions, some as professors) who are nominated by their home state
and then voted into office by the Parliamentary Assembly of the Council of
Europe (PACE). The Contracting Party is required to draw up a shortlist of
three nominees following a rigorous national procedure, after which the Com-
mittee on the Election of Judges to the ECtHR – a 20-person committee of
the PACE – prepares a report on each candidate for the full PACE, which
includes its recommendations. The PACE then votes on the nominated judges.

41
Ibid., Rule 24(2)(c).
42
Doughty, ‘Human rights court “is a threat to democracy”: Ex-Lord Chief Justice blasts une-
lected Strasbourg judges’ The Daily Mail, 1 October 2014, available at http://www.dailymail.
co.uk/news/article-2775796/Human-rights-court-threat-democracy-Ex-Lord-Chief-Justice-
blasts-unelected-Strasbourg-judges.html.
 The Convention, the Court, and the Heart of the Matter 17

The Convention itself does not elaborate much on the qualifications of poten-
tial Judges of the Court, beyond noting in Article 21 that they must be of
high moral character and must either possess the qualification required for
appointment to high judicial office or be Jurisconsults of recognised compe-
tence. These criteria are, of course, somewhat vague, and there is no guaran-
tee that their inclusion in the Convention will ensure that only highly qualified
lawyers with expertise in human rights will actually end up serving as judges of
the ECtHR, but in spite of this it is true that they are not remarkably different
to the kinds of qualifications for appointment as a judge that are found in many
domestic jurisdictions, including the UK.43

Appointment of Judges
That is not to say that the methods and processes for appointing judges to
the Court are not worthy of review and consideration. Indeed, over the past
decade judicial appointment and independence have been prominent concerns
in debates surrounding the Court, even to the extent that election of judges was
the subject of a special report from the PACE in 2011.44 As is the case in many
judicial systems, the process by which judges are selected is key to ensuring
quality (including diversity) and independence on the bench. Thus, the process
for election of judges to the ECtHR is worthy of some consideration here.
The Convention states that the PACE – the deliberative organ of the Council
of Europe made up of members of the national parliaments of each member
state – should elect a judge from a list of three candidates nominated by the
Contracting Party.45 It was previously the case that the states would send a list
of three candidates in the order of their preference (rather than alphabetically)
and the preferred candidate would normally be elected. In this system the com-
bination of politically motivated nominee selection at national level and lack of
rigour at PACE level meant that Judges of the Court were not always as well
qualified or competent as they ought to have been.46 However, the PACE now
takes a much more active role in screening candidates and assessing their suit-
ability and qualification for the Court, including demanding more rigorous
national processes.
Of course, the national selection of three nominees is the most important
stage in appointing competent and independent judges to serve in Strasbourg.
The national government is required to issue a public call for applications,
and to select the three final nominees in a fair and transparent manner, but

43
Constitutional Reform Act 2005.
44
‘Ad hoc judges at the European Court of Human Rights: an overview’, Committee on Legal
Affairs and Human Rights, AS/Jur (2011), available at https://goo.gl/rs4gM7, 36.
45
Article 22, ECHR.
46
See, for example, Louciades, ‘Reflections of a Former European Court of Human Rights
Judge on his Experiences as a Judge’ (2010), available at http://www.errc.org/article/
roma-rights-1-2010-implementation-of-judgments/3613/8.
18 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

the European institutions in question have limited means of ensuring that

this is done properly. Instead, the European system necessarily, and perhaps
inevitably, relies on the rigour, independence and effectiveness of the national
­selection procedures to filter a large field down into a list of the three most
qualified judges able and willing to serve on the Court.
The concept of qualification here requires some nuancing; there are some
elements of the role that are not usually required in national judges. In many
ways these are practical: the candidates should be able and willing to move to
Strasbourg for the duration of their time on the Court, and they should be able
to speak and work in both French and English. This is in addition to being sub-
stantively qualified and meeting the criteria of Article 21 as already mentioned.
In addition, single-sex lists of nominees from states will only be considered by
the PACE if the sex in question currently makes up under 40 per cent of the
judges on the Court or if there are exceptional circumstances that justify der-
ogating from the general rule, which is that single-sex lists are prohibited.47 As
well as these basic rules, a further check on the list of nominees that goes to the
PACE is the fact that the candidates are required to present their qualifications
in a standard CV format (to facilitate comparison between them), and these
CVs are initially sent to an Advisory Panel – mostly consisting of former judges
of the ECtHR – which can express a view to the state that some or all of the
candidates they propose are unqualified for the post. The state is not required
to follow this advice, but it is made available to the PACE.
After the list of three candidates is transferred to the PACE the special Com-
mittee on the Election of Judges to the ECtHR interviews the candidates. As a
result of these interviews the PACE can return the list to the national govern-
ment and suggest submitting a different list. Although this sounds like a some-
what drastic measure, it is not entirely unusual as, for example, interviews can
reveal that a candidate’s spoken French or English is not sufficiently developed
for them to serve effectively on the Court. On the other hand, once the Com-
mittee is satisfied with the list of three candidates it communicates its views
to the PACE, including an indication of the Committee’s preferred choice.
This information is made publicly available (as are the candidates’ CVs) and
the PACE votes according to the recommendations of the Committee in many
cases.
This multi-layered process of selection makes for a sometimes slow and
somewhat cumbersome process of judicial appointment to the ECtHR, but
it is designed to increase the likelihood that only qualified candidates will
end up serving in the Court. It cannot, of course, entirely guard against
governments nominating, and the PACE electing, ‘governmental agents’,
but it does reduce the likelihood that bad faith nominations will result in
under-qualified judges that act in a partisan manner in favour of their own
states.

Resolution 1366 (2004) of the PACE, as amended by Resolution 1426 (2005) and
47

Resolution 1627 (2008).

 The Convention, the Court, and the Heart of the Matter 19

The Principle of National Representation

Every Contracting Party has a judge on the Court through the so-called principle
of national representation. This is intended to ensure that in every case there is
always someone with expertise in the national legal systems that are being exam-
ined, and as a result the judge from the respondent state is always a member of the
Chamber or Grand Chamber in which a case is being considered.48 Thus, if a case
is brought against Iceland the Icelandic judge will be a member of the Chamber,
and if the case is referred to the Grand Chamber he will sit in the Grand Chamber
again in the same case. The rationale is that this national judge will be able to
inform his colleagues about the particularities of the national system, but this
could be done by a non-voting judge in the case, or even by a qualified Registry
lawyer preparing briefs in respect of the system in question. It does not necessar-
ily require a voting national judge on the panel. We make this point because the
principle of national representation has some potentially undesirable implications
for judicial independence, whether actual or perceived, in the Court.
First, the knowledge that the national judge will always sit in a case against
the Contracting Party may create some perverse incentives for the state in
question to nominate ‘loyal’ judges to the Strasbourg Court. The processes
described above are designed to guard against that, but they cannot absolutely
prevent it. Second, the national judge can hear the same case twice where, as
in our example above, it is heard in the Chamber and then successfully referred
to the Grand Chamber. If this were to happen in a national court there would
be a strong case that it violated the right to a fair trial (a right which is, itself,
protected by Article 6 of the Convention). As a result, some judges prefer to
recuse themselves from sitting in the Grand Chamber and an ad hoc judge
is nominated from the Contracting Party to sit as the ‘national’ judge in the
case in question. Where this happens it can effectively resolve the potential
conflict identified here, but judges are under no obligation to take this route.
This brings us to the third concern with the principle of national representa-
tion: it has resulted in a system of ad hoc judges who serve where the national
judge cannot sit on the case. This might be for reasons of principle as noted
above or, for example, because the case is one in which the judge was involved
(as advocate or judge) in the national system before being appointed to Stras-
bourg. Whilst on the face of it the system of ad hoc judges is perfectly rea-
sonable, if not sensible, it was the cause of considerable controversy for some
time. It has been argued that sometimes governments would appoint a par-
ticular judge for a particular case; the pool was not stable and instead a govern-
ment would be asked for an ad hoc judge for a specific case. Often this ad hoc
judge would be drawn from sitting judges in the national system, and it is not
unusual that a government would be aware of the personal views of its more
senior judges in relation to particular issues or controversial areas of law. The
concern was that this kind of informal knowledge influenced the selection of
ad hoc judges, in relation to whom the procedural safeguards in the PACE that

48
Article 26(4), ECHR.
20 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

apply to the appointment of permanent judges to Strasbourg do not operate.

Now, however, some precautions have been taken against this. Contracting
Parties must submit a list of three potential ad hoc judges, one of whom is to
be selected by the President of the Section to sit on the case in question (or, in
the case of the Grand Chamber, by the President of the Court).49 Whilst this
addresses concerns it does not, of course, resolve them, as there are no required
procedures for selection of the shortlist of three that goes to the Court. Some
states have gone further than this and choose to invite an existing judge of the
Court, who was nominated by another state, to act as its ad hoc judge when
the situation arises. This has been done by Luxembourg and Hungary, for
example, but the practice is not at all widespread.50

Length and Conditions of Tenure

In the Strasbourg system, as elsewhere, conditions of tenure are key to helping
maintain and guarantee judicial independence. Article 23 of the Convention
lays down the fact that judges can be appointed for one, non-renewable nine-
year term only (previously, renewable six-year terms51) and that Judges of the
Court must retire at 70. However, it was not always the case that the judges
on the Court had particularly well-developed conditions of tenure. There is
no clear and guaranteed pathway back to work following a term of office in
Strasbourg. The judges cannot normally keep their positions at the national
level during their time in Strasbourg; so, when it is time to retire from the
ECtHR some judges would have no further career at the national level. There
is no guarantee of employment for the judges and there is some chance that
they might be more prone to influence at the end of their tenure in the Court
in order to secure some chances of getting into the highest judicial offices
back home. This issue calls for some meaningful resolution by the Council of
Europe and the Contracting Parties, but has not yet been effectively addressed.

IV. The Other Relevant Bodies

The Registry of the Court
Although the judges are the primary decision makers, the Registry of the Court
contains its institutional memory, and much of its intellectual and organisational
capacity. It also exercises considerable influence over the Court, even making
prima facie decisions about whether cases are clearly inadmissible or not. In spite
of this, the Convention itself describes the Registry very briefly. Article 24 pro-
vides that the Court shall have a Registry, the functions and organisation of

49
Rule 29, ‘Rules of Court’ (above, n. 35).
50
List of ad hoc judges for the year 2017, ECtHR. Available at http://www.echr.coe.int/
Documents/List_adhoc_judges_BIL.pdf.
51
Mowbray, ‘Protocol 14 to the European Convention on Human Rights and Recent Stras-
bourg Cases’ (2004) 4 Human Rights Law Review 331, 335–336.
 The Convention, the Court, and the Heart of the Matter 21

which shall be laid down in the Rules of Court. However, the Rules are also not
comprehensive in this respect. The Registry consists of lawyers from across the
Contracting Parties. Ordinarily these would be drawn from most, if not all, Con-
tracting Parties and would normally deal with the applications coming from their
countries of origin. The Registrar and Deputy Registrar are at the heads of the
Registry and they are responsible for its organisation and activities.
Although the Registry is somewhat in the shadows, its work is crucial. Given
the very large workload of the Court, a number of tasks that we tend to associ-
ate with judges are actually carried out by members of the Registry. In this the
ECtHR is hardly alone, but it is nevertheless noteworthy. For example, it is not
unusual for a Registry lawyer to prepare a first draft of a judgment. Of course,
the judges can suggest amendments and redraft certain parts but very often the
Registry first proposes the reasoning.
Registry lawyers often determine the destiny of applications to the Court.
This is demonstrated by just three examples. First, they decide whether the
application complies with the formalities for application so that it is processed
at all. Second, they decide whether it is clearly inadmissible, in which case
it goes to a single judge. Thirdly, there may be cases in which the deciding
judge(s) does not have competence in the language in which the application is
submitted, in which case she must rely on the note summarising the applica-
tion that has been submitted by the member of the Registry.52 Although Reg-
istry lawyers have a significant role in the operation of the Court, much of what
the Registry does is not subject to public accountability mechanisms such as
the media scrutiny to which the judges on the Court are subjected. Thus, it is
crucial for the operation of the entire Convention system that the integrity and
independence of the Registry is guaranteed. Strangely, however, the Registry is
rarely considered in depth in other academic treatments of the Court.
Protecting and guaranteeing the independence of the Registry means, as a
first step, ensuring the independence of the lawyers who work there, and that,
in turn, requires some understanding of the institutional structure in question.
The Registry has a pyramid structure with the Registrar and Deputy Registrar
on the top and temporarily employed lawyers on the bottom of the pyramid.
The Court has a very unusual employment strategy for these temporary lawyers
(so-called B-lawyers). They are employed on four-year contracts that cannot
be extended and which do not have any pathways for internal promotion.53 As
with any short-term contractual employment this is sub-optimal.54 Fixed-term
employees have fewer incentives to develop institutional loyalty than perma-
nent employees, and perhaps this is even more the case since they cannot, by
the terms of their contract, be promoted in that institution.55 Furthermore,

52
Rule 18A, ‘Rules of Court’ (above, n. 35).
53
Dzehtsiarou, ‘One of the Keys to the ECHR Problems’, Human Rights in
Ireland, 11 September 2012, available at http://humanrights.ie/announcements/
one-of-the-keys-to-the-ecthr-problems/#more-16311.
54
Ibid.
55
Ibid.
22 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

four years is a relatively short cycle in circumstances in which one is learning the
(somewhat idiosyncratic) ropes of the institution at the start and seeking new
employment (by necessity) at the end.56 In spite of this, however, it is B-lawyers
who are often entrusted with the crucial task of first screening and filtering the
incoming applications. Clearly, ensuring the independence and job security of
B-lawyers is vital, but it is to date largely unaddressed by the Court.
Within the Registry there are a number of ‘departments’. The Office of Juri-
sconsult is of particular interest here. Rule 18B of the Rules of Court provides
that the Court shall be assisted by a Jurisconsult for the purposes of ensur-
ing the quality and consistency of its case law. He or she provides opinions
and information to the judicial formations and members of the Court. This
is a significant task; for example, a Jurisconsult might suggest that by adopt-
ing a particular judgment the Court would create a conflict within its case
law, which may indicate a need for the Chamber to relinquish the case to the
Grand Chamber. Although the judges are free to disagree with the opinion of
the Jurisconsult, they are taken seriously. As might be expected, however, the
Jurisconsult’s notes are confidential so it is difficult to assess the impact of this
office in real terms. The Jurisconsult is chosen by the Bureau of the Court after
a public competition. The Secretary General of the Council of Europe makes
the formal appointment.
Another department of the Registry that is worth mentioning is the
Research and Library Division. As well as managing the library, this depart-
ment is entrusted with the important task of preparing comparative research
reports for some Chamber and nearly all Grand Chamber cases. These
reports are requested where a Judge Rapporteur determines that the case
is complex and that it is important to know how the matter at hand is
dealt with in the other member states to the Convention. This report can
also provide information about the Court’s own case law, international legal
norms, EU law, and other comparative jurisdictions on the issue under con-
sideration. Where they are prepared, these comparative law reports are avail-
able to the judges sitting in the case but they are not open to the general
public. Arguably, these reports make the reasoning and judgments of the
Court more informed and enhance the legitimacy and persuasiveness of the
Court’s rulings, and they can be influential when the Court is determining
the presence or absence of European consensus (which we discuss further
in Chapter 4).
What this short overview of the Registry illustrates is that this important
part of the Court is critical to its operation and has the capacity to exert sig-
nificant influence over its work. This makes it all the more surprising that it is
so infrequently considered in the literature, so opaque in its operations, and
so apparently inattentive to the independence and job security of many of its
members.

56
Ibid.
 The Convention, the Court, and the Heart of the Matter 23

The Committee of Ministers

The Court’s legitimacy and effectiveness to a large extent depend on how well
its judgments are implemented by the Contracting Parties to the Conven-
tion. The Court’s reputation grows when the Contracting Parties routinely
execute the judgments and consider the ECtHR as a proper forum for deciding
complex questions of human rights protection. When the Court’s judgments
are criticised and not executed, the reputation of the Court suffers. Therefore,
it is important to ensure that the judgments of the ECtHR are taken seriously.
According to Article 46 of the ECHR, the judgments of the ECtHR are
legally binding and the Committee of Ministers is entrusted with the task of
supervising their execution by the Contracting Parties. The Committee of Min-
isters is made up of the Ministers for Foreign Affairs of Member States of the
Council of Europe or their representatives. It meets four times a year to discuss
the execution of judgments. Out of all of the judgments handed down by the
Court, very few receive detailed considerations in these meetings; usually they
discuss no more than five judgments per country.
Having discussed a case, the Committee of Ministers adopts a decision that
explains what needs to be done by the government of the respondent state
in order to execute the judgment.57 If the State is persistent over time in its
non-execution the Committee of Ministers might adopt an interim resolution
that shows its serious concern regarding the issue. Among other means of dip-
lomatic pressure the Head of the Committee of Ministers can send a letter
to the government concerned with a request to execute the judgment or, in
exceptional cases, determine that the progress of implementation should be
scrutinised during regular weekly meetings of the Committee of Ministers.
The Committee of Ministers can also send the judgment back to the Court for
infringement procedures under Article 46(4) of the ECHR. This can happen
if two-thirds of the Committee of Ministers agree to initiate the infringement
procedures. Then the Grand Chamber of the ECtHR will have a chance to
confirm that the case has not been executed, although it cannot impose any
further or punitive sanctions for the failure to execute. The ultimate sanction
for non-execution is the suspension of the representation of the state in the
Committee of Ministers and the PACE, and the suspension of the membership
of the Council of Europe with subsequent potential withdrawal.58 These meas-
ures are extraordinary and are almost never used.
When the state has taken all necessary measures to execute the judgment
of the ECtHR the Committee of Ministers adopts the final resolution and
closes its supervision. Whilst the Committee of Ministers is responsible for
­supervising the execution of judgments, much of the day-to-day monitoring is
actually done by the Department for the Execution of Judgments of the Court,
many of whose members would have previous experience of working in the

57
Article 46(2), ECHR.
58
Article 8, Statute of the Council of Europe.
24 GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Registry. The Department assists both the Contracting Parties in implement-

ing judgments and the Committee of Ministers in supervising implementation.
Lawyers in the Department draft the decisions of the Committee of Ministers
and prepare files for the meetings. We discuss execution further in Chapter 8.

The Human Rights Commissioner

The final part of the institutional infrastructure to be considered at this point is
the Human Rights Commissioner. This office was established in 1999,59 and is
tasked with promoting education in, awareness of and respect for human rights
as embedded in the human rights instruments of the Council of Europe.60 The
Commissioner is elected by the PACE by a majority of votes cast from a list
of three candidates drawn up by the Committee of Ministers,61 and engages
in extensive country monitoring visits and the preparation of thematic reports
with the themes determined by the Commissioner himself. Thematic reports so
far prepared range across areas as diverse as children’s rights, counter-terrorism,
economic rights, LGBTQI rights, and migration.
The Human Rights Commissioner is mentioned in the ECHR only once:
in Article 36. This Article deals with third-party interventions. These interven-
tions can be submitted by the Contracting Parties, non-governmental organ-
isations, and even groups of academics in order to inform the Court about
legal arguments relevant to the case concerned. The Human Rights Commis-
sioner is specifically mentioned as an organ that may submit written comments
and take part in hearings in the Chamber or Grand Chamber. The value of the
Commissioner’s right to intervene is not clear, given that the Court already
refers to the Commissioner’s reports in cases where no intervention is made.
Indeed, the Commissioner has intervened only 13 times since 1999, and all of
these interventions have been based on country and thematic reports that are
already in the public domain.62

Conclusion
This chapter sets out the general framework against which the debates we con-
sider in this book are assessed, as well as familiarising the reader with key insti-
tutions that will be relevant to these debates. The Strasbourg system of human
rights protection needs to be well balanced and effectively structured in order
to work, and in order to be able to make reasonable claims to legitimacy. The
Court and its judges should be independent and competent so as to ensure
input legitimacy; other bodies of the Council of Europe must work with the

59
Resolution (99) 50, Council of Europe.
60
Ibid., Article 3.
61
Ibid., Article 9.
62
Council of Europe, ‘Third-party Interventions by the Commissioner for Human Rights’,
available at http://www.coe.int/en/web/commissioner/third-party-interventions.
 The Convention, the Court, and the Heart of the Matter 25

Contracting Parties to enhance the effectiveness of the ECtHR’s judgments to

improve the output legitimacy of the judgments. Combined with the perceived
moral legitimacy of pursuing rights protection, these structures contribute to
the perceived legitimacy of the Court, and thus to the workings of the Conven-
tion system for the protection of human rights.

Further Reading
Bates, The Evolution of the European Convention on Human Rights: From Its Inception
to the Creation of a Permanent Court of Human Rights (Oxford University Press,
2010), Chapter 1.
Dothan, Reputation and Judicial Tactics (Cambridge University Press, 2015),
Chapters 2–4.
Dzehtsiarou and Coffey, ‘Legitimacy and Independence of International Tribunals: An
Analysis of the European Court of Human Rights’ (2014) 37 Hastings International
and Comparative Law Review 271.
Glas, The Theory, Potential and Practice of Procedural Dialogue in the European Convention
on Human Rights (Intersentia, 2016), Chapter 2.
Lemmens, ‘Criticising the European Court of Human Rights or Misunderstanding the
Dynamics of Human Rights Protection’ in Popelier, Lambrecht and Lemmens (eds),
Criticism of the European Court of Human Rights (Intersentia, 2016), 23–40.
Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford
University Press, 2007), Chapter 1.
 CHAPTER 2

Sovereignty and Authority

The European Convention on Human Rights (ECHR or Convention) does

not operate in a vacuum: it is only one source of law with which states must
comply at any given time, and which must somehow be harmonised if states
are to meet all of their legal obligations. This raises challenging questions that
arise in different ways in different circumstances: first, a ‘contest’ can emerge
between the Convention as interpreted and applied by the European Court of
Human Rights (ECtHR or Court) and domestic law, including often domestic
constitutional law. In these situations concerns and claims as to national sov-
ereignty add a particular dimension to the debates about authority, which we
consider in Debate 1. A second set of questions arises when it comes to the rela-
tionship between the Convention and other bodies of international law, such as
European Union (EU) law and Resolutions of the UN Security Council. States
need to comply with multiple legal obligations at the same time. For reasons of
practicality, these obligations must be reconcilable. In these circumstances, the
ECtHR may be required to determine how all of these obligations can apply
in harmony, and in a manner that effectively protects human rights. We con-
sider the relationship between the EU and the ECHR in Debates 2 and 3, and
between the Convention and other sources of international law in Debate 4.

Debate 1
Who has the final word in human rights cases: the Court or the
contracting parties?
This part of this chapter is about the distribution of power between the Con-
tracting Parties and the ECtHR: who is the ultimate policy maker in the
area of human rights standards? This is a question that leads to major ten-
sions. It is almost inevitable that at some point a respondent party to a case
will be unhappy with the judgment of the Court. It was created to super-
vise Contracting Parties’ compliance with the Convention and can, thus, make
legally binding findings1 that a state has violated the Convention, limiting the

1
Article 46, ECHR.
27
  
28  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

sovereign privilege of the Contracting States to set their own human rights
agenda without reference to international standards.
It is entirely to be expected that Contracting Parties may sometimes be
unhappy with and criticise judgments of the Court, but in some extreme cases
this criticism can lead to a ‘standoff’ and that is the kind of situation with
which we are primarily concerned here. When constructively put, states’ neg-
ative reactions to the Court’s decisions may encourage the Court to find a
more nuanced position, engage in judicial dialogue, and carefully navigate the
boundaries of its competence. The implications of standoff can be far more
detrimental to the Convention, potentially even resulting in crisis.
The exchange of rulings between the ECtHR and the UK Supreme Court
in the Al-Khawaja/Horncastle cases is a good illustration of constructive col-
laboration between the Court and Contracting Parties.2 These cases concerned
the legal rule, which allows hearsay evidence (any statement of fact other than
one made, of his own knowledge, by a witness in the course of oral testi-
mony)3 to be admitted in certain circumstances. It was claimed that this vio-
lated the Court’s ‘sole and decisive test’, which means that if the testimony of
an absent witness is the sole and decisive reason for conviction then a violation
of Article 6 of the ECHR will be almost automatically established.4 There is,
thus, a tension between the hearsay rule of evidence in the UK and the ECtHR-
established case law on the right to a fair trial, and this is precisely the tension
that arose in Al-Khawaja and Tahery v the United Kingdom.5
Al-Khawaja had been convicted for indecent assault on the basis of state-
ments from a victim who died before she could be cross-examined in court.
These statements were the only direct evidence in the case. The Chamber of
the ECtHR found a violation of the Convention because the judgment of the
national court relied solely on the hearsay evidence. Given the extent to which
such a finding would disrupt the settled laws of evidence in the UK, it was
referred to the Grand Chamber.
However, before the Grand Chamber case could be heard, the UK Supreme
Court had an opportunity to present its legal position on the same issue in the
case of R. v Horncastle.6 The Supreme Court expressed the view that the ‘sole and
decisive test’ that was developed by the ECtHR is too rigid and inflexible to be
practicable and does not take into account various safeguards provided by national
law in the common law criminal system. In other words, the Supreme Court
expressed the view that the ECtHR had misunderstood the safeguards attendant
to the hearsay rule and thus had acted in error in finding that it violated Article 6.
The Supreme Court’s reaction to Al-Khawaja and Tahery turned out to
be influential in the Grand Chamber’s later consideration of the case. Building

2
Al-Khawaja and Tahery v the United Kingdom [GC], nos 26766/05 and 22228/06, ECHR
2011 and R. v Horncastle [2009] UKSC 14, [2010] 2 AC 373.
3
R. v Horncastle (above, n. 2).
4
Al-Khawaja and Tahery v United Kingdom (above, n. 2).
5
Ibid.
6
R. v Horncastle (above, n. 2).
 29
Sovereignty and Authority  

on the Supreme Court’s judgment, the Grand Chamber found no violation of

Article 6 in relation to Mr Al-Khawaja. In doing so, it reassessed the ‘sole and
decisive test’ and made it more flexible in order to reflect the safeguards provided
in the UK. Judge Bratza, in his concurring opinion, called this exchange of legal
opinions ‘a good example of the judicial dialogue’.7 In reality it is rather unusual
for a national court to have the opportunity to intervene more or less directly
in this way: the period of time between the Chamber and Grand Chamber deci-
sion is usually relatively short, and an appropriate case does not always arise in
the domestic courts. That does not mean, however, that no other opportunities
for judicial dialogue arise. The judges of the ECtHR and national authorities
have multiple opportunities for formal and informal dialogue, through confer-
ences, personal interactions, extra curial speeches and writings, and quasi-social
events such as the beginning of the judicial year in the ECtHR.
Of course, there are instances in which dialogue fails and the Court and the
Contracting Parties face a deadlock in their relations: the Contracting Party
refuses to execute the Court’s judgment, and the Court refuses to revisit its
position. Such a situation is thankfully rare, but clearly damaging to the whole
system of human rights protection. The well-known standoff over prisoners’
right to vote illustrates this well.
In the 2005 case of Hirst v the United Kingdom (no. 2) the ECtHR found
that the UK law prohibiting prisoners from voting violated the right to free
elections as protected by Article 3 of Protocol 1.8 Whilst a state could impose
a ban on some prisoners voting, a blanket ban breached the Convention and
thus, in the view of the Court, required reform. The political reaction in the
UK was negative; an overwhelming majority of Parliament voted to maintain
the law as it was, with many claiming that it was Parliament, not the ECtHR,
that should make this decision. The Government expressed a similar sentiment,
and so the judgment went unexecuted.
Popular reaction was largely in agreement with this, perhaps to some extent
because Mr Hirst himself was an ‘unsympathetic character’. Not only had he been
convicted of manslaughter, but in winning this case he had, it was sometimes said,
opened the door for ‘murderers and rapists’ to vote, against the will of the sov-
ereign Parliament. The fact that the Court had not held that Mr Hirst had to
be allowed to vote,9 but rather that a blanket ban could not be maintained, did
not seem to placate this criticism. Quite the contrary, to some extent. The Court
claimed that the right to free elections requires that whether or not someone
can vote in any given election must be determined by reference to a Convention
compatible rule or law, where exclusions are proportionate and limited. On this
reading, the finding in Hirst (no. 2) simply requires that such a rule or law be intro-
duced. However, for others, Hirst (no. 2) effectively created a right to vote.

7
Al-Khawaja and Tahery v United Kingdom (above, n. 2). Concurring opinion of Judge
Bratza.
8
Hirst v the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX.
9
Ibid., para. 84.
30  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 3 of Protocol 1 is unusual for the Convention system; it does not explic-
itly provide for an individual right. It clearly creates an obligation to hold elections
at reasonable intervals by secret ballot to ensure the free expression of the will of
the people. In Hirst (no. 2) the Court interpreted this as including a right to vote.
Whilst the importance of voting rights is undeniable, the variety of forms in which
these rights can be provided is notable. As the Court acknowledged, at the time a
number of European states had a blanket ban on prisoners voting and there was no
common practice across the Council of Europe. Thus, one might have expected
states to be given a wide margin of appreciation in deciding on voting rights.10
Instead, the Court both developed a right to vote and prohibited blanket bans on
prisoner votes, thus giving states a limited margin of appreciation on this matter.
For many who opposed Hirst (no. 2), the problem was not only with prisoners
voting, but also with how the Court went about reaching its decision.
The judgment in Hirst (no. 2) was just the beginning of a long saga that
is far from over. In a number of judgments following Hirst (no. 2) the Court
started to specify which restrictions on prisoner voting would comply with the
Convention. As has already been pointed out, the Court in Hirst (no. 2) did
not require all prisoners in a given country to have a right to vote, but it did not
explain precisely what would be Convention-compliant.11 In Frodl v Austria,
the Chamber of the Court held that the decision to disenfranchise a prisoner
should be taken by the judge and only when the nature of the offence justifies
restricting the political participation of the offender.12 Austria requested refer-
ral of the judgment to the Grand Chamber but this was rejected. The Chamber
judgment became final and was implemented by Austria.13 In 2008 the Court
delivered a judgment in the case of Calmanovici v Romania, condemning a
blanket ban on prisoner voting, but again did not specify which system of pris-
oner disenfranchisement would conform to the ECHR.14 This judgment was
implemented and most prisoners can now vote in Romania.
In 2010, five years after Hirst (no. 2) became final, the Court delivered a
pilot judgment in the case of Greens and M.T. v United Kingdom.15 This did
not add much clarity as to what exactly should be done by the Contracting
Party in order to satisfy the standard developed in Hirst (no. 2). The Court
merely reiterated its decision from that case and gave the United Kingdom six
months to comply. This judgment has still not been executed.
In 2012, the Grand Chamber decided another case concerning prisoner
voting rights – Scoppola v Italy (no. 3).16 The UK government submitted a

10
The Court acknowledged that there was no uniform practice on prisoner voting across the
Contracting Parties.
11
Hirst v United Kingdom (no. 2) [GC], (above, n. 8), para. 84.
12
Frodl v Austria, no. 20201/04, 8 April 2010, para. 34.
13
Bates, ‘Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg’ (2014) 14
Human Rights Law Review 503, 509–510.
14
Calmanovici v Romania, no. 42250/02, 1 July 2008.
15
Greens and M.T. v the United Kingdom, nos 60041/08 and 60054/08, ECHR 2010.
16
Scoppola v Italy (no. 3) [GC], no. 126/05, 22 May 2012.
 31
Sovereignty and Authority  

third party intervention arguing that the Court had misinterpreted the Con-
vention in Hirst (no. 2),17 but in spite of this the Court reiterated the princi-
ple laid down in that case, although it was more precise as to what this actually
means. Whilst not overruling Hirst (no. 2) the Court nevertheless overruled
Frodl by stating that ‘[w]hile the intervention of a judge is in principle likely to
guarantee the proportionality of restrictions on prisoners’ voting rights, such
restrictions will not necessarily be automatic, general and indiscriminate simply
because they were not ordered by a judge’.18 The Court established that in
Italy disenfranchisement applies only to those prisoners who are convicted for
crimes that can be punished by imprisonment for longer than three years.19
This system was sufficient for the Court to declare that the ban was not auto-
matic or blanket and it consequently found no violation of the Convention.
The next stage of the prisoner voting saga occurred in Russia. In 2013 the
Court delivered a judgment in Anchugov and Gladkov v Russia.20 The facts of
the case are nearly identical to those in Hirst (no. 2), the only significant dif-
ference being that automatic disenfranchisement is enshrined in the Constitu-
tion of Russia, in its entrenched part which can only be amended by adoption
of a new Constitution.21 The Russian government argued that this was a signif-
icant consideration, which should affect the scope of the margin of apprecia-
tion afforded to the government,22 a claim to which the Court did not accede,
finding the Russian law in violation of the Convention.
In Russia, the judgment in Anchugov led to a significant backlash against
the ECtHR. The Court suggested that the Russian Constitutional Court
should interpret the Constitution in a way that would comply with the reading
of the Convention adopted by the ECtHR. This has not happened. In its
judgment of 14 July 2015, the Russian Constitutional Court declared that
Russia can depart from its international obligations if compliance with them
would violate the Russian Constitution.23 When ruling on this issue one of

17
Ibid., para. 78.
18
Ibid., para. 99.
19
Ibid., para. 106.
20
Anchugov and Gladkov v Russia, nos 11157/04 and 15162/05, 4 July 2013.
21
Article 135 of the Constitution of the Russian Federation, available at http://
www.constitution.ru/en/10003000–10.htm.
22
Anchugov and Gladkov v Russia (above, n. 20), paras 85–87.
23
Decision of the Constitutional Court of the Russian Federation from 14 July 2015 N 21-∏
‘in the case of verification of constitutionality of Article 1 of the Federal Law “On Ratifica-
tion of the Convention For the Protection of Human Rights and Fundamental Freedoms and
Its Protocols”, sections 1 and 2 of Article 32 of the Federal Law “On International Trea-
ties of the Russian Federation”, sections 1 and 4 of Article 11, subsection 4 of section 4
of Article 392 of the Civil Procedural Code of the Russian Federation, Sections 1 and 4 of
Article 13, subsection 4 of section 3 of Article 311 of the Arbitration Procedural Code of the
Russian Federation, sections 1 and 4 of Article 15, subsection 4 of section 1 of Article 350 of
the Administrative Court Proceedings Code of the Russian Federation, and subsection 2 of
Section 4 of Article 413 of the Criminal Procedural Code of the Russian Federation in relation
to the request of the group of the members of state Duma (parliament)’, available at http://
rg.ru/2015/07/27/ks-dok.html (in Russian).
32  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

the judgments that the Russian Constitutional Court clearly had in mind was
Anchugov and Gladkov v Russia. Also, the Russian Parliament – the State Duma –
has adopted amendments to the law of the Constitutional Court allowing it
to declare judgments of the ECtHR to be unenforceable in so far as they con-
tradict the foundational norms of the Constitution.24 Unsurprisingly, the first
case that the Constitutional Court was asked to consider under this new pro-
cedure was the case of Anchugov and Gladkov and it ruled that the Russian
Constitution does not allow prisoners to vote and that this determined the
matter, rather than the Convention.25 As a result, both Russia and the ECtHR
reached a dead end – the Court’s judgment cannot be executed without
adoption of a new Constitution in Russia which is a difficult and risky affair.
After Anchugov and Gladkov the ECtHR decided another prisoner voting
case, Söyler v Turkey. In Turkey, the voting ban is applicable only to those
who committed intentional crimes.26 Starting from 2001, prisoners who were
convicted for involuntary offences have been allowed to vote.27 The Court,
however, was not satisfied with this regime because in relation to intentional
crimes the Turkish system was even harsher than the one in Russia, Italy or the
United Kingdom. For instance, even those former prisoners who are condition-
ally released could not recover their voting rights until their sentence was over.28
In addition, the Court pointed out that the ban in Turkey is indiscriminate
in nature as it does not take into account the gravity of the crime committed
or the length of imprisonment.29 This judgment, therefore, adds some confu-
sion as to the standard that the Contracting Parties should apply in this field:
avoiding an absolute and indiscriminate ban is no longer the only requirement.
Some other requirements are relevant too. The ban in Turkey was clearly not
absolute – those in prison for involuntary crimes could continue enjoying their
right to vote – but the measures against those who were imprisoned for inten-
tional crimes appeared to be disproportionately harsh. Although this uncer-
tainty leaves the Court with some flexibility when deciding future cases, it still
coveys an impression of ad hoc decision making. The meaning of ‘absolute and
indiscriminate’ seems to change over time, depending on the circumstances.
As in the UK and Russia, the Turkish authorities were not particularly
impressed by this judgment, and it has not yet been executed. The Turkish gov-
ernment has informed the Committee of Ministers that the Supreme Electoral

24
The Amendments to the Federal Constitutional Law on the Constitutional Court of the
Russian Federation of 14 December 2015 N 7-ФКЗ, available at http://docs.cntd.ru/
document/420322320.
25
The Judgment of the Russian Constitutional Court as to the Possibility of Execution of
the Judgment of the ECtHR in the case of Anchugov and Gladkov v Russia. Press release
of the judgment is available at http://www.ksrf.ru/ru/News/Pages/ViewItem.aspx?Para-
mId=3281b (in Russian).
26
Söyler v Turkey, no. 29411/07, 17 September 2013, para. 26.
27
Ibid., para. 30.
28
Ibid., para. 38.
29
Ibid., para. 41.
 33
Sovereignty and Authority  

Council in Turkey can lift the voting ban in individual cases.30 However, the
Committee of Ministers is not satisfied with these measures and has claimed
that ‘[t]hese decisions […] concern the elections for which they were issued
and do not constitute a general remedy for the violation found by the Court’.31
Yet another judgment with similar facts was delivered by the ECtHR in
July 2016 in a case of Kulinski and Sabev v Bulgaria.32 As in Russia, in Bul-
garia a prisoner voting ban is enshrined in the Constitution. In its very concise
judgment the Court merely reiterated the principles adopted in Anchugov and
Gladkov without any further elaboration. It is too early to say but there is a very
high chance that this will be another unimplemented judgment of the Court.
Thus, the prisoner voting debate is a good illustration of a power struggle
between the Court and the Contracting Parties; a struggle that is deeply rooted in
notions of sovereignty and authority. It raises questions such as: ‘Why should the
Court have the last word in this debate?’ and ‘Why should judges have the author-
ity to determine the policy question of whether prisoners should vote or not?’
We might ask why it is that this question has generated so much controversy.
As already noted, one can criticise the reasoning of the Court in these cases,
but there is more to it than that. Three key conditions are present for this to
cause such a standoff. First, because voting rights are usually determined by
legislation, national parliaments can block the execution of the Court’s judg-
ment. Second, the judgment concerns unpopular minorities, easily vilified in
the media and among the voting public. Third, parliamentarians may perceive
this to be a question in which the ECtHR should not get involved. In some
countries, this may be because the question is perceived as ‘political’. In others,
it may be a microcosm of broader Euroscepticism. In others, such as Russia and
the UK,33 it may be a mixture of both.
The accumulation of these three conditions may explain why decisions as
to prisoner voting cause standoff in some countries, but not in others. Thus,
in Austria, the judgment in Frodl v Austria34 was executed without any major
issues,35 and in Ireland the national parliament initiated appropriate reforms

30
Action Plan of Turkey of execution of the ECtHR judgment in the case of Söyler
v Turkey, available at https://rm.coe.int/CoERMPublicCommonSearchServices/
DisplayDCTMContent?documentId=09000016804a2814.
31
Execution of the case Söyler v Turkey, available at http://www.coe.int/t/dghl/
monitoring/execution/Reports/pendingCases_en.asp?CaseTitleOrNumber=
soyler&StateCode=&SectionCode=.
32
Kulinski and Sabev v Bulgaria, no. 63849/09, 21 July 2016.
33
Backbenchers’ debate on the question of prisoner voting ban 2011: Hansard Report, avail-
able at http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110210/
debtext/110210-0002.htm.
34
Frodl v Austria (above, n. 12).
35
Federal law amending the Federal Constitutional Law, the National Elections Regula-
tion 1992, the Federal President Election Law 1971, the European Elections Act, the Voter
Evidence Law 1973, the European Voter Evidence Law, the Law on Referendums 1972,
the Law on Popular Petitions 1989, the Law on National Surveys 1973 and the Code of
Criminal Procedure 1975, available at https://www.ris.bka.gv.at/Dokumente/BgblAuth/
BGBLA_2011_I_43/BGBLA_2011_I_43.pdf (in German).
34  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

without there having been any specific ECtHR judgment against them.36
Yet in Russia, Turkey, the UK, and potentially in Bulgaria – all states with
growing levels of Euroscepticism – the prisoner voting issue is a major bone of
contention.
Undoubtedly, the Court should not avoid dealing with important social
issues even if they concern a challenging topic on which the national parlia-
ment might have something to say. To do so would undermine the raison
d’être of the Court, namely the protection of minorities and other unpopular
groups who cannot be protected through normal democratic processes. But
the ECtHR still needs to take account of the possible backlash to its decisions
and be prepared to confront it.
With the prisoner voting saga, one might say that the ECtHR dragged itself
into a legitimacy trap. Even now, more than 10 years after the judgment in Hirst
(no. 2), this trap continues to give the Court’s critics its critics a fertile ground
on which to question its authority. The Court needs to navigate within a very
narrow corridor between doing too much and not doing enough, between
ensuring its authority and respecting sovereignty of the Contracting Parties.
The Court needs to have the Contracting Parties on board because implemen-
tation of the judgments is almost entirely voluntary despite some diplomatic
pressure from the Committee of Ministers. If states systematically ignore the
judgments of the Court, they will lose its authority and influence. At the same
time if the Court is too deferential to the Contracting Parties it will also gradu-
ally lose its authority because it will be ineffective in its key mission of protect-
ing human rights. It seems that in the prisoner voting case law the Court got
it wrong and overstepped its legitimacy wall – an imaginary boundary beyond
which it could not go. Perhaps Europe was not ready to abandon prisoner-
voting bans; perhaps the Court needed to wait for consensus to crystallise
before developing Article 3 of Protocol 1 in this way. As we will see in Chapter
4, incrementalism of this kind can well be a way to avoid such a standoff.

Debate 2
What is the relationship between the EU and the ECHR?
Twenty-eight of the 47 Contracting Parties to the Convention are also member
states of the European Union and, thus, under obligations to comply with both the
ECHR and EU law. On the face of it, this might be a difficult task. At least in the
earlier decades of its operation, the European Union (as it now is) was not a human
rights organisation. Rather, its primary purpose was to pursue its four freedoms:
free movement of goods, free movement of workers, free movement of capital, and
freedom to provide services. All of these were fundamental to the effective estab-
lishment of the common market and its smooth operation, so that they were the
key focus for the authorities and institutions in Brussels and Luxembourg.

36
Electoral (Amendment) Act 2006, Number 33 of 2006.
 35
Sovereignty and Authority  

However, as EU law developed, EU citizens began to challenge it on the

grounds, among other things, that it violated their human rights. The difficulty
for these applicants in earlier cases was that human rights were not explicitly
protected in EU law. Of course, these people had rights under the ECHR, but
the EU was not a party to the Convention (and so one could not make a com-
plaint directly against the EU in Strasbourg). Therefore, the application had
to be directed to the individual Contracting Parties to the ECHR, which were
legally bound to implement EU laws. Some of these laws (particularly Regula-
tions) have direct effect, i.e. they become domestic law by virtue of becoming
EU law and without the intervention of the national state in the meantime.37
Others (such as Directives) do require implementing measures by the state,
so that there is a piece of domestic law that might be challenged rather than
needing to directly challenge the EU law itself.
Thus, figuring out the ways in which a person who resided in a member
state of the EU could enjoy her rights under the ECHR even when the laws of
the EU are being implemented was a difficult task.
Interestingly, it was the European Court of Justice (as it was then called),
rather than the ECtHR, that took the first major steps in ensuring that EU
law does not breach human rights norms. This is what happened in the case of
Internationale Handelsgesellschaft decided in 1979.38 Although the applicant
was not successful in that case, the Court made the following important finding:

[…] respect for fundamental rights forms an integral part of the general prin-
ciples of law protected by the Court of Justice. The protection of such rights,
whilst inspired by the constitutional traditions common to the Member States,
must be ensured within the framework of the structure and objectives of the
[Union].39

Of course, it is one thing to find that rights must be protected within EU law,
but identifying which rights those are is a great challenge especially when, as
was then the case, the law of the EU itself did not include express fundamental
rights protections. The European Court of Justice in Internationale Handels-
gesellschaft referred to ‘the constitutional traditions common to the Member
States’ when referring to the rights that might be protected in EU law, but
having in mind the diversity in constitutional traditions it is almost impos-
sible to list the rights that EU law should comply with. In the later case of
Nold,40 however, the European Court of Justice moved a step further. Again,
it mentioned these common constitutional traditions across the EU, but it also
referred to international human rights treaties.41 In Chapter 1 we noted the

37
Costa v Ente Nazionale Energia Elettrica (ENEL) [1964] ECR 585.
38
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futter-
mittel, 1970 ECR 1125.
39
Ibid., para. 4.
40
Nold v Commission [1974] EUECJ C-4/73, C-4/73.
41
Ibid., para. 13.
36  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Preamble to the ECHR, which refers to ‘common values’ of the original signa-
tory states – a phrase that bears some similarity to that used by the European
Court of Justice. Indeed, in the later case of Rutili the ECHR received specific
mention.42 All of this means that, through its case law, the European Court of
Justice effectively established (a) that protection and enjoyment of fundamen-
tal rights is a general principle of EU law, (b) that these rights are those that are
shared between the member states’ common constitutional traditions, and (c)
that they are broadly reflected in the rights protected by the ECHR.
Whilst these were important developments for EU law in particular, they
did not address the question of how the ECHR conceived of the relationship
between EU law and the Convention. This was most extensively addressed
by the Court in the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim
Şirketi v Ireland (Bosphorus).43 This case neatly illustrates how states may
be required to comply with different international obligations at the same
time. The case concerned an aircraft, leased by Bosphorus Airways from a
­Yugoslavian owner, which had been impounded by Ireland. In impound-
ing the aircraft, Ireland had been implementing a piece of EU law (Council
Regulation 990/93), which in turn had been introduced to give effect to
­sanctions against what was then the Federal Republic of Yugoslavia, imposed
by the UN Security Council, as part of its reaction to the Yugoslav war. Bos-
phorus claimed that this interfered with its right to property under Article
1 of Protocol 1 of the ECHR. Interestingly, it had first claimed a breach of
rights in the European Court of Justice but failed in that case because the
Court held any interference that existed was proportionate.44 Thus, having
failed in the ECJ, Bosphorus attempted to establish a violation of the ECHR
in Strasbourg.
In rejecting this claim, the ECtHR reflected on the relationship between
international law (including EU law) and the Convention. In so doing, it laid
down what has become known as the Bosphorus presumption:

In the Court’s view, State action taken in compliance with such legal obligations
is justified as long as the relevant organisation is considered to protect funda-
mental rights, as regards both the substantive guarantees offered and the mech-
anisms controlling their observance, in a manner which can be considered at
least equivalent to that for which the Convention provides […]. By ‘equivalent’
the Court means ‘comparable’; any requirement that the organisation’s protec-
tion be ‘identical’ could run counter to the interest of international cooperation
pursued […]. However, any such finding of equivalence could not be final and
would be susceptible to review in the light of any relevant change in fundamen-
tal rights protection.

42
Rutili v Ministre De L’Interieur [1975] ECR 1219.
43
Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland [GC], no. 45036/98,
ECHR 2005-VI.
44
Bosphorus Hava Yollari Turizm ve Ticaretas v Minister for Transport, Energy and Communi-
cations and Others [1996] EUECJ C-84/95.
 37
Sovereignty and Authority  

If such equivalent protection is considered to be provided by the organisation,

the presumption will be that a State has not departed from the requirements of
the Convention when it does no more than implement legal obligations flowing
from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a

particular case, it is considered that the protection of Convention rights was
manifestly deficient.45

Following on from this, and given that the protection of rights is a general
principle of EU law (as outlined above), the EU was identified as an interna-
tional organisation that enjoyed this presumption. What this means, in effect, is
that where a state is implementing EU law it is assumed that the EU law itself
respects the ECHR unless a manifest deficiency in rights protection is estab-
lished in respect of the particular law in question. The ECtHR was prepared to
be more deferential to legal rules that originated in the EU than those emanat-
ing from national legal orders.
This presumption is not without controversy. There are at least two bases
upon which one might be sceptical of it. The first is the additional burden that
it might be said to place on anyone who is trying to assert their Convention
rights in respect of the implementation of EU law. For these applicants, there is
a starting assumption that the law in question is Convention-compliant simply
because it comes from the EU, an organisation that is not itself a Contracting
Party to the Convention (something we consider further below). Although the
burden of establishing a violation always falls on the person asserting a breach
of rights, in these cases that burden seems somewhat heavier simply because the
state is implementing EU law. In other words, the standard of scrutiny is effec-
tively lowered because the state is implementing an international obligation.
The second question that arises here is why the EU should enjoy such a pre-
sumption in the first place. On balance, it seems likely that it should: fundamen-
tal rights are legally protected within the EU, EU measures can be annulled for
failure to respect rights, and the Court of Justice of the European Union has
repeatedly shown itself to be willing to do this. On the other hand, there is no
shortage of examples of EU measures that have been found to not comply with
human rights (for example on mass surveillance,46 or terrorist blacklisting47).
In other words, just as states can sometimes take a misstep and introduce law
that violates human rights, so too can the EU. Bearing this in mind, one might
question if it is justifiable that the EU is endowed with this presumption of
compliance with a human rights treaty to which it is not a signatory.
In spite of these questions, however, the Bosphorus presumption continues
to apply. This was made clear in the recent case of Avotin,š v Latvia.48 The facts

45
Ibid., paras 155–156.
46
Joined cases C 293/12 and C 594/12 Digital Rights Ireland [2014] OJ C 175.
47
Joined cases C 402/05 and C-415/05P Kadi and another v European Union Council
[2008] OJ C 36.
48
Avotin,š v Latvia, no. 17502/07, 25 February 2014.
38  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

of this case are complex, but for our purposes we need only note that there
was a debt-related judgment against Avotin,š from a Cypriot court, which his
creditors attempted to enforce in Latvia where he resided. Avotin,š challenged
the Latvian court’s order, which had been issued under a piece of EU law
known as the Brussels I Regulation. This allows for mutual recognition of civil
judgments across the domestic courts of the member states of the EU. This
Regulation provides that in enforcing such judgments, domestic courts in the
country where enforcement is sought ‘may under no circumstances [review]
its substance’, rather they must accept it. This is in line with the EU’s prin-
ciple of mutual recognition; that all states in the EU have rights protections
and are parties to the ECHR and thus it can be assumed that their procedures
and processes are human rights compliant. Here the applicant claimed that the
Cypriot judgment had been given in violation of his right to defence, and thus
that Latvia breached his right to due process under Article 6 of the Conven-
tion by enforcing it.
The ECtHR held that the Bosphorus presumption could be applied here: in
the field of mutual recognition EU law required rights compliance in a manner
that could be considered at least equivalent to that demanded by the ECHR.
But of course this is not the end of the story: a violation of the Convention
could still be found if Avotin,š established that the protection of rights in the
EU in the field of mutual recognition was ‘manifestly deficient’.
This judgment made clear that ‘manifestly deficient’ is a difficult standard
to meet. The ECtHR was highly critical of the fact that EU law requires courts
to recognise and enforce the judgments of other courts without being able to
enquire as to its substance. However, it seems that this was still not enough to
rebut the Bosphorus presumption. The Court held:

the Court must satisfy itself […] that the mutual recognition mechanisms do
not leave any gap or particular situation which would render the protection of
the human rights guaranteed by the Convention manifestly deficient […] [W]
here the courts of a State which is both a Contracting Party to the Convention
and a Member State of the European Union are called upon to apply a mutual
recognition mechanism established by EU law, they must give full effect to
that mechanism where the protection of Convention rights cannot be consid-
ered manifestly deficient. However, if a serious and substantiated complaint is
raised before them to the effect that the protection of a Convention right has
been manifestly deficient and that this situation cannot be remedied by Euro-
pean Union law, they cannot refrain from examining that complaint on the sole
ground that they are applying EU law.49

Note the final sentence here: not only must someone raise a ‘serious and sub-
stantiated’ claim that EU law was ‘manifestly deficient’ in protecting his Con-
vention rights, but so too must he establish ‘that this situation cannot be

49
Ibid., para. 116.
 39
Sovereignty and Authority  

remedied by European Union law’. Only if all of these conditions are fulfilled
will the Bosphorus presumption be rebutted.50
The upshot of all of this, then, is that EU and ECHR law have both devel-
oped to build a ‘mosaic’ of rights protection in Europe.51 On the one hand,
the EU has developed fundamental rights as a general principle of EU law
and, indeed, following the Treaty of Lisbon there is now a Charter of Funda-
mental Rights of the European Union, which has constitutional status in the
EU and uses the ECHR as a key interpretive guide.52 Meanwhile, the ECtHR
has developed a legal presumption in Bosphorus that is designed to ensure that
ECHR Contracting Parties can implement EU law in a practicable and effec-
tive way, but which may have sacrificed effective rights protection on the altar
of efficiency by making it almost impossibly difficult to rebut that presumption
in any given case. Undoubtedly, this is at least partially because the EU itself
cannot be directly challenged in the ECtHR. This leads us to the next debate:
should the EU accede to the ECHR?

Debate 3
Should the EU accede to the ECHR?
The EU has not yet acceded to the ECHR.53 This is, in some ways, curious as
EU accession to the Convention has long been on the cards and the Lisbon
Treaty introduced the commitment that the EU ‘shall’ accede to the ECHR.54
Moreover, Protocol 14 that entered into force in 2010 amended the Conven-
tion to allow the EU to accede. Indeed, the plans for accession have accelerated
in recent years, to the extent that a draft accession agreement has been agreed.55
This draft accession agreement was sent to the Court of Justice of the Euro-
pean Union for its assessment of its legality and, quite to the surprise of many,
it found that as designed the draft agreement was not lawful.56 There were a
number of reasons for this, and full accounts are provided elsewhere,57 but of

50
See also Michaud v France, no. 12323/11, ECHR 2012.
51
See Douglas-Scott, ‘Europe’s Constitutional Mosaic: Human Rights in the European Legal
Space’ in Shaw, Tierney and Walker (eds), Europe’s Constitutional Mosaic (Hart Publishing,
2011); See also Douglas-Scott, ‘A Tale of Two Courts: Luxembourg, Strasbourg and the
Growing European Human Rights Acquis’ (2006) 43 Common Market Law Review 629.
52
Article 6, TEU.
53
For some time it was thought that the EU did not have the legal competence to accede to
the Convention: Opinion 2/94 [1996] ECR I-1759.
54
Article 6(3), TEU.
55
Draft revised agreement on the accession of the European Union to the Convention for the
Protection of Human Rights and Fundamental Freedoms (47+1(2013)008rev2).
56
Opinion 2/13 Accession of the European Union to the European Convention for the Protection
of Human Rights and Fundamental Freedoms ECLI:EU:C:2014:2454.
57
See, for example, Larik, ‘The Accession of the European Union to the European Conven-
tion on Human Rights’ (2014) 51 Common Market Law Review 1542; Lock, ‘The Future of
EU Accession to the ECHR after Opinion 2/13: Is It Still Possible and Is It Still Desirable?’
(2015) 11 European Constitutional Law Review 239.
40  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

particular interest for our purposes is the role of the autonomy of EU law in
the Court’s reasoning.
As Douglas-Scott has noted, ‘[t]he autonomy of EU law, and its specific,
sui generis nature, has been a running theme throughout its legal history’.58
Among other things this principle means that the Court of Justice – and only
the Court of Justice – determines the meaning of EU law. Whilst this was orig-
inally designed to ensure that national courts could not propagate alterna-
tive interpretations of EU law and thus undermine the unity of EU law, here
it was also presented as a key reason to reject an arrangement in which the
ECtHR has the capacity to call into question the Court of Justice’s findings as
to EU law. This has been heavily criticised by EU lawyers59 and raises important
broader questions about the role and identity of the Court of Justice, but for
our purposes it highlights a key tension that might arise should the EU accede
to the Convention.
It is one thing to say that the two courts might develop a system of mutual
respect and presumed compliance, and even that together they have developed
an impressive system of European public law, but it is quite another to suggest
that the EU might be bound by the Convention as interpreted and applied by
the ECtHR. The latter was, it seems, beyond the pale for the Court of Justice,
raising a question as to whether the Court of Justice is contesting the authority
of the ECtHR in an analogous fashion to that seen in Debate 1 of this chapter.
Finding a way around this seems difficult, to say the least, and causes one to
wonder whether the EU should accede at all. These questions go far beyond
the (serious) doubt that now exists as to whether it would be possible to draft
an accession agreement that would comply with EU law as interpreted by the
Court of Justice. This raises the question of whether accession is necessary for
the purposes of rights protection.
On the one hand, EU accession to the Convention would allow for further
streamlining of the ECHR and EU fundamental rights law, thus further devel-
oping what we may term ‘European public law’, as well as ensuring that all areas
of EU activity were subject to judicial review of some kind in some court. These
are not insignificant or undesirable aims. However, on the other hand there is
a strong argument that accession to the ECHR is simply unnecessary. This is
worth exploring further. We have already seen that as early as 1970 the Court
of Justice made it clear that fundamental rights were protected by EU law, and
it soon became established that a violation of rights could be the basis for annul-
ling a piece of EU law. Now there is a Charter of Fundamental Rights which
gives further effect to that principle. The Charter’s Preamble states that it aims
‘to strengthen the protection of fundamental rights in the light of changes in
society, social progress and scientific and technological developments by making

58
Douglas-Scott, ‘Autonomy and Fundamental Rights: The ECJ’s Opinion 2/13 on Accession
of the EU to the ECHR’ (2016) Europarättslig Tidskrift (Swedish European Law Journal)
special edition, 31.
59
Lock, ‘The Future of EU Accession’ (above, n. 57).
 41
Sovereignty and Authority  

those rights more visible in a Charter’, and it applies to the EU at all times and
to member states when they are applying EU law. Indeed, the Charter arguably
goes beyond the ECHR by protecting various social rights, including the right
to work (Article 15), rights of the elderly (Article 25), right of access to a free
placement service for job seekers (Article 29), and a right of access to health-
care (Article 35). Where a right in the Charter is also in the Convention, the
Charter right is to be understood by reference to how the corresponding Con-
vention right is understood, so that the ECHR acts as a ‘floor’ of protection
with the Court of Justice free to interpret the Charter as giving more protection
to rights than the Convention, but never as giving less.60
Given all of this, it is not entirely clear what ‘added value for rights protection’
would come from accession, particularly given the complexity and difficulty of
accession following the Court of Justice Opinion 2/13. Lock acknowledges
that so many concessions would have to be made to satisfy the requirements
laid down in Opinion 2/13 that accession may have the effect of reducing,
rather than increasing, rights protection in real terms.61 Were this to be the
case, it is difficult to see what is to be gained from accession in real terms.
However, there are at least three creditable arguments that accession should
still be pursued. First, having two regional courts, both of which are devel-
oping a human rights jurisprudence, might create multiple and perhaps con-
flicting standards of human rights protection. Even though, as already noted,
rights protected in the EU’s Charter of Fundamental Rights and the ECHR
must be interpreted by the Court of Justice using the Convention as a ‘floor’,
this does not entirely preclude the possibility that European human rights law
will become (further) fragmented. Whilst fragmentation can lead to higher
standards of rights protection, this is not inevitably the case, meaning that for
some – including the CDDH62 – the possibility of fragmentation is a cause for
concern so that a failure of accession ‘might in the long term cause serious
damage to the credibility, authority and long-term future of the Convention
mechanism’.63 Second, if we were to accept that the protection of rights by the
Court of Justice of the European Union, referring to the Convention as the
Charter requires it to, meant that accession is not necessary, it would be dif-
ficult to see why the same argument should not be made by states wishing to
leave the ECHR and whose domestic legal systems also protect rights. Nothing
about the Court of Justice of the European Union makes it so clearly distin-
guishable from, for example, domestic constitutional or supreme courts as to
say that this argument can be applied only to it. Third, accession would mean
that the EU would be held accountable for complying with the Convention,

60
Article 52(3), Charter of Fundamental Rights of the European Union.
61
Lock, ‘The Future of EU Accession’ (above, n. 57).
62
Steering Committee for Human Rights – a Council of Europe body that among other com-
petences can propose further reforms of the ECtHR.
63
CDDH, Report on the Longer Term Future of the European Convention on Human Rights
CDDH (2015) R84 Addendum I, 65.
42  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

thus plugging the accountability gap that arises from the application of the
Bosphorus presumption to Contracting Parties’ application of ever-expanding
EU law.64

Debate 4
What is the relationship between the ECHR and other sources
of international law?
Of course, not all Contracting Parties to the ECHR are also member states of
the EU, but all do have a range of international legal obligations that they must
abide by. There are other potential clashes. What happens, for example, where
a state is engaged in an armed conflict? Are their obligations under the Con-
vention set aside, or do they continue to operate? We consider issues related
to armed conflict in Chapter 6, but for now we can concentrate on the specific
question of how (and if) the Convention applies when states are giving effect
to their other international legal obligations.
This question arises most sharply when states are implementing Chapter
VII resolutions of the UN Security Council. These are resolutions passed for
the purposes of international peace and security, and which are binding on all
member states of the United Nations (UN) by virtue of the Charter of the UN.
Article 103 of that same Charter further provides:

In the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other inter-
national agreement, their obligations under the present Charter shall prevail.

This raises a serious question, and a difficult one: if a UN Security Council Res-
olution requires a Contracting Party to the ECHR to act in a manner that vio-
lates Convention rights, can a violation be found, or does Article 103 of the
UN Charter effectively compel states to act in such a way? This is by no means
an insignificant query. If the answer is that states must comply with the Con-
vention at all times, then they may be placed in an almost impossible situation
of irreconcilable international obligations. However, if Article 103 of the UN
Charter means that states are required to subordinate their Convention obli-
gations to their other international obligations where they are in conflict, the
whole concept of Convention rights as legal protections is called into question,
not least because the UN Security Council itself is not obliged to have regard
to the ECHR when formulating its Chapter VII resolutions.
In the joined cases of Behrami v France and Saramati v France, Germany
and Norway, the Grand Chamber was asked to consider whether Contract-
ing Parties to the ECHR could be held liable for breaches of the Conven-
tion in respect of acts done when they were acting as part of NATO’s Kosovo

64
See, for example, Lock, ‘The Future of EU Accession’ (above, n. 57).
 43
Sovereignty and Authority  

peacekeeping forces (KFOR) and the United Nations Mission in Kosovo

(UNMIK).65 These forces were UN-led, multinational forces acting under
Security Council Resolution 1244 (1999). Rather than determine the question
put to it per se, the Court held that the actions of member states in these cir-
cumstances were attributable to the UN (which is not a Contracting Party to
the ECHR) not to the Contracting Parties themselves. Thus, no assessment of
Convention-compatibility could be undertaken: these actions simply did not
‘count’ as actions of the ECHR Contracting Parties.66
In many ways, this approach seems like ‘avoidance’; rather than have to
determine the impact of Article 103 of the UN Charter on Convention obliga-
tions, the Court simply side-stepped the issue through its attribution decision.
What Behrami suggests is that when acting as part of a UN mission established
by resolution of the UN Security Council, Contracting Parties to the ECHR
will not be subjected to Convention analysis.67 From a rights protection per-
spective this is deeply problematic, especially as the Court has also found that
there is no breach of the right of access to a court under Article 6 where a
domestic court affords the UN immunity68 from claims, even where the actions
were done within the Council of Europe and with the involvement of Euro-
pean states.69
In sum, this means that where there is a UN mission neither the ECHR
Contracting Parties involved in the mission nor the UN are likely to be held
accountable under the Convention. There is, rather, a substantial accountabil-
ity gap here which the ECtHR has not found a way to plug and has, argua-
bly, exacerbated by its decision in Behrami. This raises serious questions about
the effectiveness of the Convention and its system: if Contracting Parties are
not accountable for violations of the Convention when they act under the
auspices of the UN, and if the UN enjoys immunity which is recognised by
the ECHR system, surely there is reason to wonder at the ability of the Con-
vention to properly protect rights. The fact that the operations in question
often involve military intervention and high-risk times of armed conflict adds a
further dimension of risk to rights, which is discussed in full in Chapter 6 (on
the Convention in times of insecurity, including war).
The Court has taken a somewhat more Convention-promoting path in
respect of situations where Contracting Parties are implementing UN Security
Council resolutions through their domestic laws or actions. This has been a

65
Behrami v France and Saramati v France, Germany and Norway (dec.), nos 71412/01 and
78166/01, 2 May 2007.
66
Ibid., para. 44.
67
See also Banković and Others v Belgium and Others (dec.) [GC], no. 52207/99, ECHR
2001-XII which is discussed in full on Chapter 6 (where Contracting Parties operated as part
of a NATO mission).
68
Article 105, Charter of the United Nations.
69
Stichting Mothers of Srebrenica and Others v the Netherlands (dec.), no. 65542/12, ECHR
2013.
44  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

particularly difficult question for the Court in recent years, as individuals have
challenged the ways in which member states have implemented UN Security
Council requirements to disrupt the financial affairs of people, organisations
and states for the purposes of, for example, disrupting terrorist financing and
sanctioning states.70
The most recent case in this line is Al-Dulimi and Montana Management
Inc. v Switzerland,71 decided in June 2016. This case concerned UN Secu-
rity Council Resolution 1483 (2003), through which all UN member states
had been required to freeze all funds and assets of the former government of
Iraq, of Saddam Hussein, and of senior members of the former Iraqi regimes
and their immediate family members or legal entities. The frozen and seized
assets would then be transferred to the Development Fund for Iraq. The
persons and entities to whom the sanctions regime would apply were identi-
fied by a Sanctions Committee established by the Security Council, and both
of the applicants had been placed on the list by this Committee, following
which Switzerland had begun proceedings to appropriate their assets in Swiss
banks.
The applicants claimed that the methods by which they were put on the list
violated their rights under Articles 6 and 13 of the Convention because there
was no channel by which listing could be disputed through judicial review. This
posed a quandary for the Court: it cannot directly review the actions of the
Sanctions Committee because the UN is not a Contracting Party to the Con-
vention. However, it can – and did – consider whether, in implementing Reso-
lution 1483, Switzerland had complied with its obligations under the ECHR.
In this respect it found a breach of the Convention because Switzerland did not
allow for judicial review of the applicants’ listing in its domestic courts. Swit-
zerland argued that it was obliged to implement Resolution 1483 and that, in
any case, Article 103 of the UN Charter made it clear that its obligations under
that Charter prevailed over its obligations under the Convention.
The question of whether there was a conflict between the requirements of
Resolution 1483 and those under the Convention was key to the decision in
the case: after all, Article 103 only applies ‘[i]n the event of a conflict between
the obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement’. Swit-
zerland argued that there was clearly a norm conflict between Resolution 1483
and the Convention so that it was bound to apply the Resolution and freeze
these assets. However, for eight of the judges on the Grand Chamber there was
no necessary conflict. In earlier cases on similar sanction regimes the Court had
introduced a presumption that Security Council resolutions were intended to
comply with human rights law,72 so that they would be taken to do so unless

70
See especially Al-Jedda v the United Kingdom [GC], no. 27021/08, ECHR 2011; Nada v
Switzerland [GC], no. 10593/08, ECHR 2012.
71
Al-Dulimi and Montana Management Inc. v Switzerland [GC], no. 5809/08, ECHR 2016.
72
Al-Jedda v the United Kingdom (above, n. 70); Nada v Switzerland (above, n. 70).
 45
Sovereignty and Authority  

they explicitly said otherwise.73 On this reasoning, when a provision in a Res-

olution is unclear, it is to be interpreted harmoniously with the ECHR and
a presumption of compliance (similar to the Bosphorus presumption) is to be
applied.
The finding that no conflict with the Convention will be found to arise
unless it is explicitly constructed by the wording of a Resolution is a deft way
to step around the logical implications of Article 103 being engaged (which
would be that a Contracting Party is not obliged to comply with the Conven-
tion where it conflicts with the Resolution). However, there is a question mark
over how helpful this is in real terms. In Al-Dulimi, as in similar cases, the state
remains obliged to apply the Resolution to those persons and entities listed by
the relevant Sanctions Committee of the UN. Domestic courts cannot serve as
a forum for review of the UN Security Council: they do not have the author-
ity to overrule a decision of the Security Council, which is not subject to their
jurisdiction. Indeed, in Al-Dulimi the Court accepted as much, holding:

Turning to the precise obligations imposed by the Convention on Switzerland

in the present case, the Court accepts that the Federal Court was unable to rule
on the merits or appropriateness of the measures entailed by the listing of the
applicants. […] However, before taking the above-mentioned measures, the
Swiss authorities had a duty to ensure that the listing was not arbitrary.74

The Court thus required the state in question to obtain sufficient information
to allow its courts to be able to scrutinise the listing, but one wonders what
kind of order a court that found the listing to have been arbitrary could possi-
bly make. Does the ECtHR seriously contemplate a domestic court ordering a
government to refuse to implement a UN Security Council Resolution in any
particular case? Might it be ordered to make representations for delisting to
the Sanctions Committee? How should a domestic court deal with situations
where the information provided to ground the listing is highly sensitive and
cannot be revealed to the listed person or entity? Or with situations where the
grounding information cannot be shared with the court but is instead summa-
rised in a statement from the government? The Court held that Article 6 would
be violated if listed persons and entities could not submit information to the
domestic court, or if relevant information was not sought from the Sanctions
Committee (even under a confidential procedure), but there is little clarity
about how the rights violation could be effectively remedied in such cases.
There is similarly little clarity on how the harmonious interpretation is to
be implemented in practice. This likely depends on the extent to which the
Court holds a Contracting Party has a ‘scope of discretion’ in applying the
Resolution in any particular case. Security Council Resolutions are applied by

73
In Nada v Switzerland the presumption of compliance was rebutted by the clear wording of
the Resolution, Ibid.
74
Al-Dulimi and Montana Management Inc. v Switzerland (above, n. 71), para. 150.
46  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

states within their domestic legal systems; in other words, the means to achiev-
ing the end of compliance can vary across different legal systems. In princi-
ple, this suggests that a Contracting Party to the Convention might design
a means of implementing a Security Council Resolution in domestic law that
complies with the Convention. However, one wonders whether this is realistic
in the case of sanctions regimes: states are legally obliged to freeze the assets of
persons and entities included on the list drawn up by the Sanctions Committee
so that, in practice, there is very little discretion to be exercised. In spite of this,
both the ECtHR and, in similar litigation, the Court of Justice of the Euro-
pean Union75 have held that such discretion does exist, and that rights must be
respected when exercising this discretion unless the Resolution explicitly pro-
vides otherwise.
At first blush, this appears somewhat futile: it does very little in real terms
to truly resolve the question of authority that arises for a state when it appears
to be bound to comply with two sets of international obligations that are
difficult to reconcile. It may well be that the real value of decisions such as
Al-Dulimi is that they shape how ECHR member states are likely to make rep-
resentations to the UN Security Council when sanctions and similar regimes
are being designed, so that they can try to ensure fair(er) procedures are built
into the extensive regimes of financial disruption that have been introduced
to deal with terrorism and insecurity.76 Beyond that, however, it is difficult
to see how cases such as Al-Dulimi – admirable in principle – are effective in
practice.

Conclusion
The ECtHR operates within a complex system of multiple international obli-
gations that the national governments are required to implement. Moreover,
the national governments also enjoy significant authority in deciding how these
obligations are implemented. Since the interrelations between national and
international obligations, and between various levels of international obliga-
tion themselves, are not clearly hierarchal, obligations can sometimes seem to
conflict with one another. When one of those sets of obligations originates in
the ECHR this creates significant challenges for the effectiveness of the Con-
vention, and requires delicate handling by the Court. As we have seen in this
chapter, in trying to address these difficult questions, the Court has largely
attempted to engage productively with both national authorities and inter-
national standards, finding ways to make them work together, to integrate
them, and to respond to the operation of national legal systems. That said, the

75
Kadi and another v European Union Council (above, n. 47).
76
For a similar argument in respect of the Kadi decision see de Londras and Kingston, ‘Rights,
Security and Conflicting International Obligations: Exploring Inter-Jurisdictional Judicial Dia-
logues in Europe’ (2010) 58 American Journal of Comparative Law 359.
 47
Sovereignty and Authority  

Court’s judgments are binding, and the obligation to execute (i.e. give effect
to) these judgments exists whether the national authorities agree with them or
not. We return to this latter point in far more detail in Chapter 8.

Further Reading
Bates, ‘Analysing the Prisoner Voting Saga and the British Challenge to Strasbourg’
(2014) 14 Human Rights Law Review 503.
Douglas-Scott, ‘Europe’s Constitutional Mosaic: Human Rights in the European Legal
Space’ in Shaw, Tierney and Walker (eds), Europe’s Constitutional Mosaic (Hart
Publishing, 2011).
Lock, ‘The Future of EU Accession to the ECHR after Opinion 2/13: Is It Still Possible
and Is It Still Desirable?’ (2015) 11 European Constitutional Law Review 239.
Tzevelekos, ‘When Elephants Fight it is the Grass that Suffers: “Hegemonic Struggle”
in Europe and the Side-Effects for International Law’ in Dzehtsiarou et al. (eds),
Human Rights Law in Europe (Routledge, 2014).
 CHAPTER 3

Admissibility

Although rarely covered in much detail in the academic literature, admissibility

is extremely important. More than 90 per cent of all applications are declared
inadmissible,1 meaning that the substantive claims of rights violation in the
vast majority of complaints submitted to the Court are never considered by
the judges there. Articles 34 and 35 of the European Convention on Human
Rights (ECHR or Convention) outline the criteria for admissibility that any
application submitted to the European Court of Human Rights (ECtHR or
Court) must comply with in order to be considered on the merits. According
to Article 34:

The Court may receive applications from any person, non-governmental organ-
isation or group of individuals claiming to be the victim of a violation by one of
the High Contracting Parties of the rights set forth in the Convention or the
Protocols thereto.

Article 35 establishes the admissibility criteria:

1. The Court may only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international law, and
within a period of six months from the date on which the final decision was
taken.
2. The Court shall not deal with any application submitted under Article 34
that
(a) is anonymous; or
(b) is substantially the same as a matter that has already been examined
by the Court or has already been submitted to another procedure of
international investigation or settlement and contains no relevant new
information.

1
That 90 per cent of applications are inadmissible is the Court’s own assessment. For
instance, the Court’s own report on admissibility mentions this figure. The Admissibility of an
Application, available at www.echr.coe.int/Documents/COURtalks_Inad_Talk_ENG.PDF, 1.

49
  
50  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

3. The Court shall declare inadmissible any individual application submitted

under Article 34 if it considers that:
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto, manifestly ill-founded, or an abuse of the right of indi-
vidual application; or
(b) the applicant has not suffered a significant disadvantage, unless respect for
human rights as defined in the Convention and the Protocols thereto requires
an examination of the application on the merits and provided that no case may
be rejected on this ground which has not been duly considered by a domes-
tic tribunal.

Admissibility rules are a key mechanism for managing the Court’s workload
and, to some extent, for maintaining its institutional identity as a subsidiary
regional court. Admissibility rules are also, however, a barrier to individuals all
across the Council of Europe from accessing substantive adjudication in Stras-
bourg. Thus, both the substance and the practice of admissibility-related deci-
sion making in the ECtHR matter greatly not just for the everyday work of
the Court but for any serious engagement with questions of effectiveness and
legitimacy which, as we have already seen in Chapter 1, motivate much of our
enquiry throughout this book. In Debate 1 of this chapter we consider the rela-
tionship between admissibility and the legitimacy of the ECtHR. In some ways
this is related to the question of who can make an application to the Court –
who counts as a ‘victim’ of an alleged Convention violation? And how serious
should an alleged violation be for the ECtHR to consider it? We discuss these
issues in Debates 2 and 3.
At first glance, it may appear that admissibility criteria are ‘simple’ rules,
capable of technical and technocratic application. Whilst admissibility deci-
sions do often involve a high degree of technocratic and bureaucratic decision
making, often by the Registry, it will become clear throughout this chapter
that the Court retains much discretion. The rules and their application are
such that the Court can often find a way to deem admissible a case that it con-
siders warrants substantive adjudication even if it seems to violate the admis-
sibility criteria. This cuts the other way too, of course, so that the criteria can
be applied with particular stringency if there is a caseload backlog that needs
to be addressed. Thus, admissibility mechanisms available to the Court enable
it to choose the most important applications and consider them, even if they
are not, strictly speaking, admissible. This is certainly not an uncontroversial
approach to admissibility, and raises questions about how much discretion the
ECtHR should have in deciding on admissibility; questions we consider in
Debate 4.
In Debate 5 we consider how the Court can negotiate two competing objec-
tives: being an effective constitutional tribunal that can shape European Public
Order and reviewing each and every application that has been submitted to the
Court. The Court’s application of the rules of admissibility is crucial here. If
admissibility is narrowly defined then few applications will filter through the
 51
Admissibility  

system and the Court will have more time to deal with ‘important’ applica-
tions. Having said that, this approach is not without drawbacks: it can reduce
individual applicants’ faith in the system.

Debate 1
How do admissibility criteria affect the Court’s legitimacy?
In Chapter 1 we argued that subsidiarity, effectiveness and judicial method-
ology are important bases of the ECtHR’s legitimacy. Two admissibility cri-
teria are directly linked to these: exhaustion of domestic remedies, and the
six-month time limit for lodging an application.
Exhaustion of domestic remedies under Article 35 is a reflection of proce-
dural subsidiarity. It requires that domestic mechanisms be ‘exhausted’ before
the ECtHR is asked to consider an alleged violation, so that the national mech-
anisms have the opportunity first to assess and, where appropriate, redress the
violation. The six-month rule ensures that the Court’s decisions are predict-
able and do not disrupt the domestic legal order any more than is necessary
by placing some temporal certainty on whether the domestic resolution of an
alleged rights violation is likely to be contested at the European level. Both of
these criteria seem fairly straightforward and capable of relatively easy assess-
ment, and routine and formal application. However, as with any rules, the
extent to which they might be rigidly or flexibly applied can have implications
for the extent to which the entity applying them (here the ECtHR) is per-
ceived to be acting legitimately in doing so. So, should a potentially extremely
grave violation be deemed inadmissible, and thus not considered, because it
was received one hour after the time limit had expired? And if not – if there is
a case for a more flexible application of the rule – how can consistency in appli-
cation be achieved so that the Court does not appear arbitrary or capricious in
its admissibility decisions?
Let us consider this first in relation to the six-month rule; perhaps one of
the most straightforward and strictly applied admissibility criteria. Thousands
of applications are declared inadmissible because they were not submitted on
time. After Protocol 15 comes into force the time limit will be further reduced
to four months, potentially increasing the occurrence of out-of-time applica-
tions, at least in the short term. The Court does not normally allow exten-
sion of the six-month period, although it used to allow for the time limit to
be met through a fairly minimal engagement by the applicant with the Court.
Only around 10 years ago, an applicant or her lawyer could send a letter briefly
explaining the facts of the case and, if that letter arrived within the six-month
period, it would stop the time successfully and the full application could be
submitted on a later date. Sometimes this would be months or even years later,
and the Court would reject the subsequent application only if too much time
had elapsed between the introduction of the initial letter and the full applica-
tion form. This system was very beneficial to the applicants but of course raised
52  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

challenges for the Strasbourg system of human rights protection as so many

files remained open, often for years, before any substantive decision on them
could be taken. Thus, the ECtHR decided to stop this practice and now the
six-month time limit can only be interrupted by a fully completed application
form. Save for some special circumstances (like continuing violations or multi-
ple violations) the Court appears, thus, to have prioritised legal certainty and
predictability in its application of the six-month rule.2
The Court has much broader discretionary powers when assessing whether
domestic remedies have been exhausted. First, the Court must decide whether
the available remedy in domestic law is effective, so that an applicant would be
required to exhaust it before going to Strasbourg. Of course, this involves the
Court in making substantive decisions as to the quality of remedies provided
in domestic law, but this ensures that states cannot evade supervision by the
ECtHR simply by introducing formal and ineffective remedies. This leads inev-
itably to the application of discretion in admissibility decision making. What
does it mean for a remedy to be effective?
The Court normally states that an effective remedy is capable of acknowl-
edging a violation and offering restitutio in integrum or adequate compensa-
tion if restitution is not possible.3 Remedies that cannot directly address and
rectify alleged violations (like determinations of ombudspersons)4 or which
cannot immediately prevent deterioration of the applicant’s situation are con-
sidered ineffective. In extradition cases, for example, applicants are not required
to exhaust any domestic remedies that would be incapable of suspending the
proposed extradition if granted.5 The Court reserves considerable discretion in
deciding whether a remedy is in principle effective or not. If a remedy that is
considered effective in principle is not exhausted then the application will be
declared inadmissible as premature, but if someone exhausts a remedy that is
considered ineffective in principle she might miss the six-month time period
so that her application to Strasbourg would be inadmissible. Just because a
remedy is ineffective in principle does not mean that it might not be effective in
a particular case, but such a case would not change its nature in the eyes of the
ECtHR, and future complainants would not be required to exhaust it. To illus-
trate: a potential applicant might apply to an ombudsperson who might manage
to resolve this particular case, so that the applicant would not be a ‘victim’ from
the perspective of the ECtHR, but this would not mean that every potential
future applicant would have to engage with an ombudsperson whose powers

2
See, for example, Idalov v Russia [GC], no. 5826/03, 22 May 2012, paras 127–133 for mul-
tiple violations; McDaid and Others v the United Kingdom (dec. European Commission), nos
34822/97 and five others, 9 April 1996 for continuing violations; and Rule 47(6)a that pro-
vides that only a full application form can now interrupt the six-month term.
3
See, for example, Lukenda v Slovenia, no. 23032/02, ECHR 2005-X, para. 44; Demopoulos
and Others v Turkey (dec.) [GC], nos 46113/99 and seven others, ECHR 2010, para. 114.
4
See Egmez v Cyprus, no. 30873/96, ECHR 2000-XII, para. 67.
5
See, for example, De Souza Ribeiro v France [GC], no. 22689/07, ECHR 2012.
 53
Admissibility  

are considered too limited for this process generally to be deemed an effective
remedy under the Convention.
Changes in the means of its application and operation can shift the status of
a remedy from ‘ineffective in principle’ to ‘effective in principle’, or vice versa.
This of course reflects the fact that the effectiveness of a remedy will often very
much depend on the context in which it is made and received, and the enforce-
ment infrastructure that surrounds it. Thus, the Court first assesses the effec-
tiveness of the remedy per se when it is introduced on the national level, and
then considers its effectiveness in practice, sometimes changing its assessment
by reference to how the remedy works ‘in the real world’. This can be illus-
trated by reference to the Italian ‘Pinto Law’: an attempt to remedy undue
delays in criminal proceedings which the Court has frequently found to violate
Article 6 of the Convention.6
Responding to these repeated findings of violation, the Italian authorities
introduced the ‘Pinto Law’ in 2001. This provided for special judicial review
of the length of proceedings and some compensation where undue delay was
considered to have occurred. Initially, the Court deemed this remedy effec-
tive.7 However, its optimism about the remedy soon dissipated as Italian
national courts began applying the ‘Pinto Law’ in practice. In Scordino v Italy
the ECtHR determined that the amount of compensation that is awarded by
Italian courts under the ‘Pinto Law’ is incompatible with the Court’s prac-
tice, meaning that the remedy was ineffective and therefore did not need to be
exhausted.8 The remedy was, thus, in principle ineffective.
From the point of view of the state authorities, this approach might be seen
as an assault on the principle of procedural subsidiarity because the ‘Pinto Law’
may have been effective in at least some cases. However, the legitimacy of the
ECtHR would be undermined if an applicant had to wait for a long time on the
national level for an ineffective remedy simply because the ECtHR is reluctant
to make determinations of ‘in principle’ ineffectiveness. Here, as in all cases
of establishing whether a remedy is effective or not, the Court must balance
the applicants’ interests against the systemic interest in maintaining procedural
subsidiarity and be prepared to intervene if applicants’ rights are not properly
protected. This allows for the Court to balance its interest in procedural sub-
sidiarity, the Contracting Parties’ interest in being subjected to international
supervision only where the national system has inadequately tried to attend
to rights violations, and individuals’ interest in the protection of their human
rights. The connections between all of these interests and, indeed, the difficult
task of balancing them, on the one hand, and the development and mainte-
nance of legitimacy, on the other, is clear.

6
See, for example, Capuano v Italy, 25 June 1987, Series A no. 119 and Di Mauro v Italy
[GC], no. 34256/96, ECHR 1999-V.
7
See, for example, Daddi v Italy (dec.), no. 15476/09, 2 June 2009.
8
Scordino v Italy (dec.), no. 36813/97, ECHR 2003-IV.
54  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Debate 2
Who can apply to the Court?
Article 34 states that the Court can receive applications from any person, non-
governmental organisation or group of individuals claiming to be the ‘victim’
of a violation. The concept of ‘victim’ is, thus, important here. The Court
cannot accept applications that would require it to consider laws in abstracto
(i.e. applications asking the Court to undertake an abstract review of the com-
patibility of a legal provision with the ECHR9) but must instead deal with
concrete situations of alleged violation. This partly reflects the institutional
limitations of the Council of Europe. Where a domestic constitutional court
undertakes an abstract review that results in a finding with potentially far-reach-
ing impacts, the other organs of the state (such as the parliament) can attempt
to mitigate that, perhaps by proposing a constitutional change in a correc-
tive referendum or similar. In other words, the judicial power is usually coun-
ter-weighted within the infrastructure of the state. This is not as clearly the
case in the Council of Europe, where no such counter-weight can easily be
identified. Perhaps even more importantly, abstract review allows for very wide
judicial intervention in governance of a scale and nature that is not clearly
appropriate to a supranational court. National governments, parliaments and
the judiciary have the primary responsibility for the administration of the state;
as the ECtHR is subsidiary its findings should intrude on the domestic sphere
only inasmuch as required by the application of the Convention to concrete
factual circumstances. This is precisely why the Court needs to be able to iden-
tify a victim: so that a concrete scenario can clearly be sketched and the assess-
ment and judgment made in relation to that.
Having said that, there are more complex cases, such as in relation to covert
surveillance discussed below, in which the applicant simply cannot prove that
she is a direct victim of a violation. On a strict application of the rules, the Court
should declare such an application inadmissible, even if it means that apparent
violations of the Convention go un-dealt-with by the Court. In reality, the
Court exercises some flexibility and discretion here; if there is absolutely no
other way to bring the potential violation before it, the ECtHR may deem the
application admissible. Otherwise, it will strike it out and await a complaint in
which the victim requirement has been fulfilled.
Although the victim requirement seems straightforward on the face of it, of
course there are some situations where a direct victim cannot easily be identi-
fied. The Court will occasionally elect to allow those applications to be consid-
ered on the merits, prioritising the effective protection of rights over the legal

9
Some national constitutional courts can review constitutionality of a law disconnected with
its application in a particular case. For example, abstract review is allowed in Germany, Italy,
Spain, Moldova, Serbia, Montenegro and many other countries. See Sadurski, Rights Before
Courts (2nd edn, Springer, 2008).
 55
Admissibility  

certainty that would come with a strict and uncompromising application of

this admissibility rule. We identify four areas in which the ECtHR, whilst not
resorting to abstract ruling, significantly departed from a strict construction of
the victim requirement.

Victims of Covert Activities

In some cases the Court will receive an application about covert activities
undertaken by the state. Here, the applicant cannot of course strictly estab-
lish victim status, as the covert nature of the activities in question means that
nobody can tell for certain whether they were subject to them or not unless
this becomes evident in the subsequent criminal proceedings. Here, the Court
should, strictly speaking, deem the application inadmissible, but doing so
would mean that the covert nature of the activity would be enough to insulate
it from the ECtHR’s supervision: a clearly undesirable situation. The Court
can, thus, consider the victim requirement to be satisfied under certain circum-
stances. This is well illustrated by the recent Grand Chamber judgment in the
case of Roman Zakharov v Russia in which the applicant challenged secret sur-
veillance of telephone communications in Russia under Article 8.
Here, the applicant could not establish that his telephone communications
had been surveilled; the surveillance was, after all, secret. However, rather than
deem the application inadmissible because victim status could not conclusively
be established, the Court prioritised the effectiveness of human rights protec-
tion and considered the probability that the applicant’s phone conversations
were actually interfered with to assess whether the victim requirement was sat-
isfied. The Court stated that it

accepts that an applicant can claim to be the victim of a violation occasioned

by the mere existence of secret surveillance measures, or legislation permitting
secret surveillance measures, if the following conditions are satisfied. Firstly, the
Court will take into account the scope of the legislation permitting secret sur-
veillance measures by examining whether the applicant can possibly be affected
by it, either because he or she belongs to a group of persons targeted by the
contested legislation or because the legislation directly affects all users of com-
munication services by instituting a system where any person can have his or
her communications intercepted. Secondly, the Court will take into account the
availability of remedies at the national level and will adjust the degree of scrutiny
depending on the effectiveness of such remedies.10

In other words, if the applicant is a member of a group that may be affected

and there is no remedy on the national level that would protect his interests
then the Court will find this application admissible, even if individual victim-
hood cannot conclusively be established.

10
Roman Zakharov v Russia [GC], no. 47143/06, ECHR 2015, para. 171.
56  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Unidentifiable Victims
The same dilemma between legal certainty and effectiveness is evident when
it is hard to identify a particular victim from a group of potential victims.
Here, the ECtHR cannot be sure that each and every applicant is a victim of
a violation but nevertheless deems their applications admissible. In Finogenov
and Others v Russia11 the Court was asked to consider whether the use of gas
against terrorists during the Moscow theatre siege in October 2002 was com-
patible with the ECHR. In this case, the government argued that the deaths of
125 hostages were not caused by the gas used during the rescue operation, but
were due to pre-existing illnesses exacerbated by the siege. The Court was rea-
sonably sceptical about the fact that 125 persons of different age and physical
conditions could die simultaneously at the same place from various pre-existing
health conditions.12 At the same time, the Court could not rule out that none
of the deaths had been thus caused. The question was whether the likelihood
that some of the deceased were not victims should mean that all of the applica-
tions were struck out. The Court thought not:

As transpires from the Government’s submissions, and as the events of the case
clearly show, the gas was, at best, potentially dangerous for an ordinary person,
and potentially fatal for a weakened person. It is possible that some people were
affected more than others on account of their physical condition. Moreover, it
is even possible that one or two deaths amongst the applicants’ relatives were
natural accidents and were not related to the gas at all. Nevertheless, it is safe to
conclude that the gas remained a primary cause of the death of a large number
of the victims.13

If legal certainty had been prioritised in this case (so that the possibility that
the applicants had not been victims resulted in the case being deemed inadmis-
sible) the extent to which the Russian government had violated (or complied
with) the Convention in planning and executing this operation could not have
been considered at all by the ECtHR.

Deceased Victims
Another context in which the Court prioritises effectiveness over legal certainty
is when nobody but a specialised NGO can bring a complaint on behalf of a
deceased applicant. For a long time it has been the Court’s practice that if an
applicant is dead her case can be continued only by her relatives. If such rela-
tives are not known, are absent, or do not have an interest in the case then it
is to be discontinued. This rule was reconsidered by the ECtHR in Centre for
Legal Resources on behalf of Valentin Câmpeanu v Romania. The victim in this

11
Finogenov and Others v Russia, nos 18299/03 and 27311/03, ECHR 2011.
12
Ibid., para. 201.
13
Ibid., para. 202.
 57
Admissibility  

case had severe mental disabilities and was HIV positive. His mother had aban-
doned him at birth, and he died in grossly inadequate conditions in the care of
the state. The Court described these conditions thus:

On 20 February 2004 a team of monitors […] noticed Mr Câmpeanu’s

condition […] Mr Câmpeanu was alone in an isolated room, unheated and
locked, which contained only a bed without any bedding. He was dressed
only in a pyjama top. At the time he could not eat or use the toilet without
assistance. However, the staff at the [hospital] refused to help him, allegedly
for fear that they would contract HIV. Consequently, the only nutrition pro-
vided to Mr Câmpeanu was glucose, through a drip. The report concluded
that the hospital had failed to provide him with the most basic treatment
and care services.14

In this case, there were no relatives who could bring the case to the Court on
behalf of the deceased. The ECtHR had to consider whether a nongovern-
mental organisation, the Centre for Legal Recourses (CLR), could apply on his
behalf. The CLR was neither the direct nor indirect victim of this violation, and
had no power of attorney from the deceased. A strict application of the rules
would suggest that the application ought to have been deemed inadmissible.
The Court, however, came to a different conclusion by stating that

in the exceptional circumstances of this case and bearing in mind the serious
nature of the allegations, it should be open to the CLR to act as a representa-
tive of Mr Câmpeanu, notwithstanding the fact that it had no power of attor-
ney to act on his behalf and that he died before the application was lodged
under the Convention. To find otherwise would amount to preventing such
serious allegations of a violation of the Convention from being examined at
an international level, with the risk that the respondent State might escape
accountability under the Convention as a result of its own failure to appoint a
legal representative to act on his behalf as it was required to do under national
law. Allowing the respondent State to escape accountability in this manner
would not be consistent with the general spirit of the Convention, nor with the
High Contracting Parties’ obligation under Article 34 of the Convention not
to hinder in any way the effective exercise of the right to bring an application
before the Court.15

Here, the CLR was clearly not the victim but the Court decided that in the
interest of fairness and effective rights protection the application warranted
assessment on its merits. It thus made it clear that in exceptional cases NGOs
could continue an application on behalf of a deceased victim. This exception
to the victim rule has since been used in at least two other cases: Kondrulin v

Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania [GC], no. 47848/08,
14

ECHR 2014, para. 23.

15
Ibid., 112.
58  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Russia16 and Association for the Defence of Human Rights in Romania –Helsinki
Committee on behalf of Ionel Garcea v Romania.17

Corporate Victims
As legal persons, corporations can make applications to the ECtHR; the ques-
tion is who can take the application on their behalf. Normally, that would be
the head of the corporate body such as the CEO or director. However, if the
corporation is in the process of liquidation this question becomes more chal-
lenging. Whilst a state-appointed liquidator should ordinarily represent the
company, in certain circumstances the shareholders might lodge an applica-
tion with the Court. In the case of Agrotexim and Others v Greece the Court
held that this would only be permitted where ‘it is clearly established that it is
impossible for the company to apply to the Convention institutions through
the organs set up under its Articles of incorporation or – in the event of liquida-
tion – through its liquidators’.18 Whilst this is a very high standard, it does not
absolutely preclude a shareholder-initiated application to the Court where it
is necessary because the ordinary organs of the company, for whatever reason,
cannot act in this way on its behalf. In the case of Capital Bank AD v Bulgaria
the ECtHR explained that allowing a state-appointed liquidator to represent a
particular company in the ECtHR will in some cases lead to undermining ‘the
very essence of the right of individual applications by legal persons, as it would
encourage governments to deprive such entities of the possibility to pursue an
application lodged at a time when they enjoyed legal personality’.19 That would
in turn mean that the rights enjoyed by legal entities under the Convention
became illusory. In OAO Neftyanaya Kompaniya Yukos v Russia the Court
once again used its discretion at the admissibility stage. The applicant company
was effectively bankrupted and sold by the Russian authorities, meaning that
it had ceased to exist before the Court had a chance to consider the case.20
Strictly speaking, then, no victim existed and the application should have been
deemed inadmissible. The ECtHR declared this application admissible because
otherwise it would encourage authorities to liquidate companies in order to
avoid international responsibility for violation of their rights.
These four examples illustrate a few important principles. First, the Court
takes the victim requirement seriously, usually applying it strictly to ensure an
appropriate level of legal certainty. Second, if it is impossible to prove victim
status or an application cannot be made by the victim directly the Court may
prioritise the effectiveness of human rights protection over strict application
of the victim rule, and allow the application in order to ensure the complaint

16
Kondrulin v Russia, no. 12987/15, 20 September 2016.
17
Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of
Ionel Garcea v Romania, no. 2959/11, 24 March 2015.
18
Agrotexim and Others v Greece, 24 October 1995, Series A no. 330-A, para. 66.
19
Capital Bank AD v Bulgaria, no. 49429/99, ECHR 2005-XII, para. 80.
20
OAO Neftyanaya Kompaniya Yukos v Russia (dec.), no. 14902/04, 29 January 2009.
 59
Admissibility  

can be adjudicated upon. The Court thus attempts to strike a balance between
strict application of the rules and effectiveness-oriented discretion, illustrating
that even the most straightforward-looking admissibility criteria involve some
degree of judgement in their application.

Debate 3
How significant must disadvantage be?
In 2010 Protocol 14 introduced a new admissibility criterion focusing on the
significance of the alleged violation. Following that adjustment, Article 35(3)(b)
now reads:

The Court shall declare inadmissible any individual application submitted under
Article 34 if it considers that:

[…]

(b) the applicant has not suffered a significant disadvantage, unless respect for
human rights as defined in the Convention and the Protocols thereto requires
an examination of the application on the merits and provided that no case may
be rejected on this ground which has not been duly considered by a domestic
tribunal.21

After Protocol 15 enters into force, the application of this admissibility crite-
rion will be broadened by removal of the requirement that it is only applicable
if the case has been duly considered by a domestic tribunal.
This criterion adds considerable discretion at the stage of assessing admis-
sibility. It also calls into question the extent to which the Court may have to
balance broader, systemic interests (in prioritising the ‘most important’ cases)
and the principle of individual complaint and individual justice in the ECtHR.

On the face of it, ‘no significant disadvantage’ appears to be a criterion that is

intended to allow the Court to be more selective by filtering out less important
cases (with importance being determined by using significance of disadvantage
as a proxy), thus allowing the ECtHR to focus on cases that might be said to
have more potential for development of the Convention.22

The former Prime Minister of the United Kingdom David Cameron famously
called the ECtHR a ‘small claims court’ and it seems this amendment of the

21
The Brighton Declaration proposes amendment of this Article to remove the phrase ‘and
provided that no case … tribunal’; Brighton Declaration, para. 15.
22
de Londras and Dzehtsiarou, ‘Managing Judicial Innovation in the European Court of
Human Rights’ (2015) 15 Human Rights Law Review 523, 531. The history of the introduc-
tion of this new criterion points to its attempt to achieve all of these things: Buyse, ‘Signifi-
cantly Insignificant? The Life in the Margins of the Admissibility Criterion in Article 35 § 3 (b)
ECHR’ in McGonigle et al. (eds), The Realization of Human Rights: When Theory Meets Prac-
tice. Studies in Honour of Leo Zwaak (Intersentia, 2013).
60  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Convention was a response to such criticism.23 Whenever the question of sig-

nificant disadvantage is considered by the Court24 as a matter of admissibility,
an underlying claim is being made that reflects the tension between the Court
as a constitutionalist actor and the Court as simple adjudicator of individual
complaints.

The implicit claim is either (i) that the disadvantage suffered is so significant
that a refusal to hear the case when it is otherwise inadmissible would be unjus-
tifiable on constitutionalist grounds, even if its resolution requires judicial inno-
vation and (ii) that the disadvantage suffered is so insignificant (thus the case
does not raise ‘real’ constitutionalist questions) that even compliance with the
other admissibility grounds ought not to be sufficient for the Court – overbur-
dened and in need of rationalising its workload as it is – to agree to hear it.25

Under no circumstances could it be suggested that this analysis is simple or

automatic or that it requires no discretion.
The Court has made it clear that determining whether the disadvantage
suffered by the applicant was significant requires consideration of both ‘[t]he
applicant’s subjective feeling about the impact of the alleged violations has to be
justifiable on objective grounds’.26 This means that the Court will consider what
is at stake (the objective element) and the impact of this potential damage on
the applicant (the subjective element). Of course, both require a good deal of
judgement in order to assess them, even as a matter of admissibility.
The criterion also raises questions about the extent to which the Conven-
tion is beginning to shift from a principle of individual justice and universality
of rights protection. It is of the essence of human rights as protected by con-
temporary law that they are available to all, and that all breaches are subject
to mechanisms to ensure that they are remedied. The ‘no significant disad-
vantage’ admissibility criterion seems to undermine this, suggesting that the
ECtHR will only step into ensure protection of human rights if the alleged vio-
lation caused significant discomfort. This is of course justifiable from a purely
instrumental point of view: the Court does not have unlimited resources, it
cannot replace national systems of human rights protection, and dealing with
minor claims can potentially delay its involvement with larger-scale issues. One
might argue that the ‘no significant disadvantage’ requirement is a proper com-
promise between the ideal of universality and the reality of limited resources.
On the one hand, the Convention allows small claims to be rejected; but on
the other hand, the Convention puts an obligation on the Court to consider

23
Watt, ‘David Cameron Calls for Reform of European Court of Human Rights’, The
Guardian, 25 January 2012, available at www.theguardian.com/law/2012/jan/25/
david-cameron-reform-european-court.
24
This new admissibility criterion can be raised by a respondent government or by the Court
on its own motion, see Ionescu v Romania (dec.), no. 36659/04, 1 June 2010.
25
de Londras and Dzehtsiarou, ‘Managing Judicial Innovation’ (above, n. 22), 531.
26
Korolev v Russia (dec.), no. 25551/05, ECHR 2010 (emphasis added).
 61
Admissibility  

the consequences for the constitutionalist development of the Convention of

declaring the case inadmissible due to there being no significant disadvantage.
Pursuant to Article 35 the ECtHR should not deploy this admissibility crite-
rion if ‘respect for human rights’ requires examination of the case. Thus, it
seems that if the issue is of prima facie constitutionalist importance, lack of sig-
nificant disadvantage becomes irrelevant. Due to the fact that neither ‘signifi-
cant disadvantage’ nor ‘respect for human rights’ can be exactingly defined, it
may well be that the ECtHR will be free to use wide discretion in application of
this criterion so that it might be relaxed in order to do justice, as we have seen
that many of the other admissibility criteria are.

Debate 4
How much discretion should the Court have in deciding
admissibility?
In Debates 2 and 3 we have already established that admissibility criteria leave
the Court with a considerable amount of discretion, even in what seems at first
glance to be a ‘merely’ technical assessment of admissibility. This may seem
confounding. As Tickell has observed:

Determination of the admissibility of applications is conceived as the self‐evident

administration of clear rules, operating without flexibility and without discre-
tion. Case ‘filtering’ under the Convention’s admissibility criteria is envisaged
as a solid ‘iron cage’ of weary but dogged administration, its clear rules gating
the legally, politically and ethically laden work of adjudication which admissi-
ble, ‘meritorious’ cases are subjected to. This distinction is neatly captured by
the official terminology. The admissibility of an application is determined by a
‘decision’, while the merits of a case are assessed in a ‘judgment’. Admissibility
decision‐making is not a ‘judgment’ in institutional terms, but in the orthodox
understanding, it is also assumed to involve no judgment on the part of judges
and Registry lawyers.27

However, in truth there are no admissibility criteria that would exclude discre-
tionary decision making. Indeed, so extensive is the discretion in practice that
what is passed off as an admissibility decision might often seem much more like
a judgment on the merits, even though strictly speaking a judgment on merits
should have a greater level of reasoning that can be analysed than is usually the
case with decisions on admissibility. Most admissibility decisions are not pub-
lished, but they are final and cannot be appealed. Moreover, the judges usually
decide inadmissibility on the basis of a short note prepared by the lawyers of the
Registry who are often from the respondent state against which the application

Tickell, ‘Dismantling the Iron-Cage: the Discursive Persistence and Legal Failure of a
27

“Bureaucratic Rational” Construction of the Admissibility Decision-Making of the European

Court of Human Rights’ (2011) 12 German Law Journal 1786, 1789.
62  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

was brought. These notes explain the basic facts of the case and (very) briefly
the reasons for declaring it inadmissible. Lists of putatively inadmissible cases

transmitted electronically to the single judges contain only one or two ­sentence
summaries of each matter recommended for dismissal, identifying the right
being invoked; the judges do not see the applications and a few have com-
plained of feeling that they are expected to ‘rubber-stamp’ the decisions of the
Registry.28

Although these notes from the Registry are checked and re-checked by more
experienced lawyers, the original ‘filtering’ is often done by a relatively inexpe-
rienced B lawyer (as discussed in Chapter 1). This initial screening is crucial for
the fate of the case. Of course, a reasonable amount of trust should be an integral
part of a judicial system, but some key safeguards need also to be maintained.
With the enormous number of inadmissible applications that the Court rejects
every year, it is reasonable to imagine that some really important issues may slip
through this system. Although this shadow decision making is very effective and
quick in tackling the Court’s backlog, it begs a lot of questions in terms of pro-
cedural legitimacy. In 2017 it was announced that the Court will start informing
the applicants of which criteria of admissibility a particular application failed to
comply with. This new approach may enhance the transparency of admissibility
decision making. However, not even that change will resolve the fact that the
criteria themselves allow for (sometimes quite significant) discretion.
The requirements that there would be no abuse of the right of individual peti-
tion and that the application ought not to be manifestly ill-founded both allow
for very significant discretion. The Court used abuse of petition to reject ‘petty’
applications even before Protocol 14 introduced the ‘no significant disadvan-
tage’ admissibility criterion discussed in Debate 3.29 Abuse of petition can mean
anything from providing false documents30 or identity31 or failing to update the
Court about important developments in the case on the national level to use of
offensive language32 or disclosure of the terms of friendly settlements. Undoubt-
edly, decisions about apparent abuse of the right of petition are complex. They
require an understanding of the national legal system and national language,
and often call for an assessment of an applicant’s aim in making an application.
Although some instances declaring an application to be an abuse of right of indi-
vidual petition can be rather straightforward, in others it is anything but.
The same is true of manifestly ill-founded claims, which are those that treat
the ECtHR as a court of fourth instance, applications with a clear absence

28
Shelton, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human
Rights’ (2016) 16 Human Rights Law Review 303, 309.
29
See Bock v Germany (dec.), no. 22051/07, 19 January 2010 and Dudek v Germany (dec.),
no. 12977/09, 23 November 2010.
30
Poznanski and Others v Germany (dec.), no. 25101/05, 3 July 2007.
31
Drijfhout v Netherlands (dec.), no. 51721/09, 22 February 2011.
32
Kolosovskiy v Latvia (dec.), no. 50183/99, 29 January 2007.
 63
Admissibility  

of a violation, unsubstantiated applications and the like. In these cases, the

line between an admissibility decision (manifestly ill-founded) and a merits
decision (no violation) seems very thin indeed, and the Court appears to use
substantial discretion in categorising the outcome as one or the other. Let
us illustrate this by reference to situations where there is a clear or appar-
ent lack of violation. In Mentzen v Latvia the applicant complained that the
Latvian authorities had changed her surname according to Latvian spelling
rules.33 Although the ECtHR has established that there was an interference
with the rights protected by the Convention and discussed the proportionality
of the interference, the result was that the application was deemed manifestly
ill-founded instead of the Court making a finding of no violation. Although
legally speaking the outcome is almost the same, there is a procedural differ-
ence (where there is no violation a case can be referred to the Grand Chamber)
and a symbolic difference for the applicant.
In some instances those cases that are declared manifestly ill-founded by the
ECtHR are not only accepted by other international tribunals but result in vio-
lations being found there. In Singh v France34 the ECtHR considered whether
the French requirement to appear bareheaded on official photographs is com-
patible with the freedom of religion of the followers of the Sikh religion who
are obliged to wear a turban. The ECtHR decided that religious rights can be
limited in the interests of public safety, and declared the application manifestly
ill-founded. The same applicant brought a complaint about the same matter
to the Human Rights Committee (UN HRC) – the UN body that supervises
implementation of the International Covenant of Civil and Political Rights.
Article 18 of the Covenant protects the freedom to manifest religion similar to
that which Article 9 of the ECHR provides. The UN HRC declared this appli-
cation admissible and found a violation of the Covenant in this case. It is quite
normal that different international tribunals weigh different aspects of the pro-
portionality test differently. The situation here is more troubling, though, as by
finding the case to be manifestly ill-founded, the ECtHR denied the opportu-
nity for the applicants to be heard on the merits, whilst another tribunal con-
sidered this case and found violation.35
Steven Greer has written:

It is naïve […] to regard the manifestly ill-founded criterion as an objective test.

Determining if an application is, or is not, manifestly ill-founded requires the
exercise of judgment and the interpretation of conduct, facts, and norms; it is,
therefore, inescapably discretionary. Some commentators maintain that many
complaints are rejected on this basis simply because the Court does not have the
resources to consider them properly.36

33
Mentzen v Latvia (dec.), no. 71074/01, ECHR 2004-XII.
34
Singh v France (dec.), no. 4479/07, 13 November 2008.
35
Singh v France, HRC, 26/09/2013, CCPR/C/108/D/1928/2010.
36
Greer, ‘What’s Wrong with the European Convention on Human Rights’ (2008) 30 Human
Rights Quarterly 680, 686.
64  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The authors of Harris, O’Boyle and Warbrick Law of the European Conven-
tion on Human Rights also confess that manifestly ill-founded decisions lead
to the rejection of complaints that are not manifestly deficient on their merits.
However, they offer at least two reasons why this practice should be continued
nonetheless:

First, in single judge and Committee formations, it allows the Court summarily
to declare cases inadmissible, thus freeing judicial time for more deserving cases.
Second, it allows Chambers of the Court to dispose of cases where, even though
the issues may be quite complex, nothing useful is to be gained from communi-
cating the case and obtaining the views of the respondent government: so called
‘de plano inadmissibility’ decisions.37

For these authors, then, manifestly ill-founded decisions may well involve the
exercise of a great deal of discretion in the context of deciding on admissibil-
ity, but this can be justified by the need to keep an overburdened and under-
resourced court operating effectively. This is yet another illustration of the
Court having to negotiate competing grounds of its legitimacy. On the one
hand the Court has to deliver judgments in a timely manner; on the other it
should avoid allowing procedural simplifications to create so much discretion
that equally meritorious cases may have utterly divergent outcomes.
Whilst the requirement that applications must not be ‘manifestly
ill-founded’ gives the Court very extensive discretion, significant discretion can
also be exercised in relation to other criteria. Let us take, for example, what
happens when a victim loses her victim status because ‘the national authorities
have acknowledged, either expressly or in substance, and then afforded redress
for, the breach of the Convention’.38 Even if these conditions are satisfied the
ECtHR might consider whether there are any reasons related to European
Public Order that would justify continuation of the proceedings.39 The Court
has also reserved some discretion in deciding whether the redress provided
by the Contracting Party is sufficient to justify discontinuation of a case. In
Ciorap v Moldova (no. 2), for example, the Moldovan Supreme Court explicitly
acknowledged that denial of medical treatment combined with the conditions
of detention amounted to inhuman treatment of the applicant and awarded
him a compensation of €600 for non-pecuniary damage. The ECtHR might
have considered the applicant’s victim status to have been resolved through
this award, but instead declared the case admissible because the compensation
was grossly inadequate.40
The ECtHR cannot accept an application if it has been adjudicated by or
is pending at another international tribunal. Although rare, the decision of

37
Harris et al., Harris, O’Boyle and Warbrick Law of the European Convention on Human
Rights (3rd edn, Oxford University Press, 2014), 78–79.
38
Amuur v France, 25 June 1996, Reports of Judgments and Decisions 1996-III, para. 36.
39
Paez v Sweden, 30 October 1997, Reports of Judgments and Decisions 1997-VII, para. 30.
40
Ciorap v Moldova (no. 2), no. 7481/06, 20 July 2010.
 65
Admissibility  

admissibility in such cases involves assessment of the parties in the respective

proceedings, the relevant legal provisions relied on by them, the scope of their
claims, and the types of the redress sought in order to assess whether they are
properly regarded as the same complaints. This is not always straightforward.
In Folgerø and Others v Norway, the Court considered whether the refusal of
the Norwegian authorities to grant the applicants a full exemption from reli-
gious classes in public schools violated their rights under Articles 9 ECHR and
2 of Protocol 1. A very similar complaint was submitted by another complain-
ant to the UN HRC. Moreover, the complaint was brought to the UN HRC
after the same national proceedings to which both groups of applicants were
parties.41 To all intents and purposes, then, these were very similar if not effec-
tively the same complaint, but the ECtHR declared the application admissible,
formally focusing on the fact that the applicants in the UN HRC and ECtHR
were not the same people as the applicants in the case before it. In contrast,
we can consider POA and Others v the United Kingdom. This concerned the
blanket ban on industrial action by prison officers. The applicants – the prison
officers’ trade union and two of its officials – argued that the ban was incom-
patible with Article 11 ECHR. The complaint had been also raised before the
International Labour Organisation (ILO) Committee on Freedom of Asso-
ciation, and according to the Court the complaints to the ILO and ECtHR
were virtually identical, although not all the applicants were the same.42 Some
of the applicants to the ECtHR were individual persons, not the trade union
as such, and they were not and could not be the claimants in the ILO as it
only accepts collective applications. However, the Court declared this applica-
tion inadmissible because ‘applicants must be seen as being closely associated
with the proceedings and the complaints before the Committee on Freedom
of Association, by virtue of their status as officials of the POA’.43 It is difficult
to see what can have made the difference between Folgerø and Others and POA
and Others, but one was deemed inadmissible and the other not, both under
the same principle. Here the effects of the Court’s discretion were clearly felt.
Even the very narrowest of admissibility criteria allow for some discretion.
Take, for example, the rule against anonymous applications. This requires that
the applicant be identified in applications, and when a case is communicated
to the respondent government the name of the applicant will be revealed. The
rationale behind this is fairly simple: the respondent government needs to
know who the applicant is if it is to be able to prove that alleged human rights
violation did not happen. The Court normally informs the Contracting Parties
about the name of the applicant even if she is afraid that such disclosure will
put her at risk of ill-treatment. Whilst the applicant can be anonymised in such
a case, this only means that the public at large will not know her name; the
respondent state still will. Even in respect of this – seemingly unambiguous –

41
Folgerø and Others v Norway [GC], no. 15472/02, ECHR 2007-III.
42
POA and Others v the United Kingdom (dec.), no. 59253/11, 21 May 2013, para. 28.
43
Ibid., para. 28.
66  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

rule, however, the Court exercises discretion. In Shamayev and Others v Georgia
and Russia the applicants were of Chechen origin and were awaiting extradi-
tion from Georgia to Russia. The events complained of took place during the
war in Chechnya and the applicants were wanted in Russia on suspicion of
terrorism. Some of the applicants submitted pseudonyms instead of their real
names in their initial applications to the Court (they later disclosed their true
identities). The Russian government argued that the application was anony-
mous and should be declared inadmissible, but the ECtHR disagreed, stating
that ‘the Court does not question the fact that, behind the tactics of conceal-
ing true identities for reasons that can be understood, there are persons who
are real, concrete and identifiable by a sufficient number of indicia, other than
their names’.44 This can be contrasted with ‘Blonje’ v the Netherlands in which
the applicant also used a pseudonym but the Court declared the case inadmis-
sible.45 There are very few published decisions of the Court dealing with ano-
nymity as it seems that the majority of such cases are dealt with by a single
judge and never pronounced publicly. Although the Shamayev judgment is
exceptional it underpins the argument that we are making here, namely that
admissibility is far from being free from judicial discretion and the process of
admissibility needs to be closely scrutinised.

Debate 5
How does admissibility relate to effectiveness?
It seems that the Court derives at least some of its legitimacy in the eyes of indi-
viduals from the fact that it accepts applications from each and every person
who is under the jurisdiction of one of 47 Contracting Parties to the Conven-
tion. Of course, inadmissible applications can and perhaps should be rejected,
and we have already seen that the criteria of admissibility have plenty of discre-
tion built into them. As a result, the outcome of an application is not always
easily predictable. This lack of predictability has allowed some commentators to
argue that the Court picks and chooses which applications it deems important
enough to assess on their merits through admissibility decisions.46 The sugges-
tion is that the Court is really making decisions about importance, prioritising
cases of potential constitutionalist significance, but continuing to perform the
‘dual functions’ of individual and constitutional justice.
This allegation is perhaps given fuel by the fact that admissibility decisions
are lacking in transparency; there is not usually a written and reasoned judgment

44
Shamayev and Others v Georgia and Russia (dec.), no. 36378/02, 12 April 2005.
45
‘Blonje’ v the Netherlands (dec.), no. 7245/09, 15 September 2009.
46
Paper by Greer and Wildhaber, ‘Revisiting the Debate about “Constitutionalising” the Euro-
pean Court of Human Rights’ (2012) 12 Human Rights Law Review 655; de Londras, ‘Dual
Functionality and the Persistent Frailty of the European Court of Human Rights’ (2013)
European Human Rights Law Review 38.
 67
Admissibility  

explaining the admissibility decision. The Court justifies this by reference to

the limited resources available and the practical difficulties of providing reasons
in every inadmissibility decision. The truth is that in most cases unsuccessful
applicants do not even know which admissibility criterion they failed to fulfil.47
Given this, the argument goes that the Court may well be moving away from
a vision of individual justice and instead embracing the framework of constitu-
tional justice within which it only needs to focus on vaguely defined strategic
cases that can improve the system of human rights as a whole.
This conclusion can also be corroborated by references to the Court’s offi-
cial priority policy,48 which was introduced in 2009 to ensure important cases
would be dealt with in a timely manner. Before 2009, all cases were dealt
with in chronological order, which meant that some crucial issues that needed
prompt resolution could be stuck in the Court’s docket for years. Pragmati-
cally, the introduction of this priority policy strengthens the constitutionalist
capacity of the ECtHR, meaning that the applications raising questions capable
of having an impact on the effectiveness of the Convention system in a general
sense have priority even over the applications related to the right to life, the
prohibition of torture and the prohibition of slavery. This at least suggests that
the Court is prioritising its resources in order to concentrate on its general
impact on the development of human rights standards, rather than focusing
them on remedying individual human rights violations for the sake of ensuring
they are remedied.
This not only has an impact on the Court’s ability to develop its constitu-
tional role, which some consider would increase its overall effectiveness, but
also on the likelihood of the Contracting Parties being the subjects of adverse
decisions. As it stands, over 80 per cent of admissible cases result in a finding of
violation of the ECHR49 so that, as Shelton has commented, ‘[l]imiting admis-
sibility means limiting condemnation’.50 Of course, the proponents of limited
admissibility argue that the Court is simply unable to deal with all applications
that are submitted to it and loses its impact on shaping European Public Order
when it tries to do so.51 However, there are at least two counter-arguments to
that.
First, the Court derives at least some of its moral legitimacy from the fact
that every person under the jurisdiction of the 47 Contracting Parties can bring

47
The Court has recently announced that it will inform the applicants about the ground of
inadmissibility. However, it seems unlikely that the Court will offer any reasons why a particu-
lar ground should be applied in a case at hand. See ‘European Court Launches New System
For Single Judge Decisions’, Human Rights Europe, 1 June 2017, available at www.human-
rightseurope.org/2017/06/european-court-launches-new-system-for-single-judge-decisions/.
48
‘The Court’s Priority Policy’, available at www.echr.coe.int/documents/priority_policy_eng.
pdf.
49
In 2016 the Court delivered 993 judgments; in 828 judgments (83 per cent) the Court
found at least one violation of the Convention (HUDOC database search).
50
Shelton, ‘Significantly Disadvantaged?’ (above, n. 28), 306.
51
See de Londras, ‘Dual Functionality’ (above, n. 46).
68  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

a complaint and this complaint will be dealt with. This rule is egalitarian and
non-arbitrary (at least on the face of it). Here two clear sources of the Court’s
legitimacy might be in tension with one another: its effectiveness and its moral
purpose of universal rights protection. Can the Court sacrifice some less impor-
tant applications (irrespective of how this might be defined in practice) in order
to achieve more impact in particular problematic areas? Of course, the answer
to this question will be a matter of degree, depending on how much positive
impact the Court can make and how many applications should be sacrificed in
order to achieve that. If it takes the Court decades to come to an important
application because it has to deal with hundreds of low importance or inadmis-
sible applications, then its effectiveness will be very low. On the contrary, if the
Court concentrates on a handful of ‘important’ cases, ignoring all other poten-
tially meritorious applications, then the ECtHR might lose its role as an effec-
tive adjudicator and applications may simply not make their way to the Court
at all. Taken from this perspective, the argument goes that the ECtHR needs
to strike a very delicate balance between assessing the importance of the issues
it deals with and maintaining the right of individual petition. Indeed, this is
effectively what the Court already attempts to do.
Second, in order to have a positive impact on rights in at least some Con-
tracting Parties the Court cannot easily avoid repetitive cases. This is because it
has become clear that countries in respect of which repetitive cases are brought
are either unwilling or unable to adopt effective solutions to systemic and
recurring human rights violations (such as detention conditions or delays in
criminal proceedings) and that the Court offers (and should offer) some sat-
isfaction to the aggrieved applicants.52 One might wonder whether this is the
proper role of an international tribunal, but on the other hand it may create
sufficient pressure on Contracting Parties to introduce reforms to avoid con-
stant embarrassment on the international level that there would eventually be
a positive rights-enhancing outcome.53
We must not forget that we still live in a Europe where many millions of
people cannot receive redress in their domestic legal systems, where human
rights abuses are daily and serious, and where for many the ECtHR truly is the
only hope of protecting rights and effecting change. In these circumstances,
it is difficult to avoid the argument that the Court ought to continue to take
individual applications, even where they might not seem serious enough for the
level of resource that will be applied to addressing them, because people frankly
need it to do so. However, what we have seen in this chapter is that through
application of the admissibility criteria in ways that display significant discretion
this is not necessarily happening, or at least not consistently enough to sustain

52
Dzehtsiarou and Greene, ‘Restructuring the European Court of Human Rights: Preserving
the Right of Individual Petition and Promoting Constitutionalism’ (2013) Public Law 710.
53
The reform of the system of enforcement of final national judgments in civil cases in Russia
was at least partially a result of a major number of applications adjudicated by the ECtHR; see
Burdov v Russia (no. 2), no. 33509/04, ECHR 2009.
 69
Admissibility  

this argument. Neither is the Court clearly abandoning this approach and
embracing a constitutionalist approach. For some, it is precisely this that makes
the Court effective: its ability to do both, albeit imperfectly. For others, a deci-
sion between the two is urgently required. Ultimately, this goes once more to
the question of what the ECtHR is for, and how its purpose can be achieved.

Conclusion
Every formation of the Court can declare a judgment inadmissible, including
the Grand Chamber.54 As we have seen in this chapter, many decisions that
are formally made by a formation of the Court are effectively pre-­determined
by Registry lawyers, a part of the Court we have already argued is opaque,
under-studied, and vitally important to the work of the Court. This is of
concern not just because of the lack of transparency, but because, as we have
shown, every criterion of admissibility allows some exceptions and the Court
can adjust these criteria if circumstances require it. Admissibility criteria range
between those which allow very broad discretion and are akin to decisions on
merits (such as manifestly ill-founded complaints or abuse of the right to indi-
vidual petition) and those which are less open to interpretation but still allow
some creative decision making from the Court (such as the six-month rule or
the rule against anonymous applications). Not only that, but admissibility is a
key stage in the management of the work – and the function – of the Court,
which must sometimes decide between constitutionalism and adjudication.

Further Reading
de Londras, ‘Dual Functionality and the Persistent Frailty of the European Court of
Human Rights’ (2013) European Human Rights Law Review 38.
Dzehtsiarou and Greene, ‘Restructuring the European Court of Human Rights:
Preserving the Right of Individual Petition and Promoting Constitutionalism’
(2013) Public Law 710.
Greer and Wildhaber, ‘Revisiting the Debate about ‘Constitutionalising’ the European
Court of Human Rights’ (2012) 12 Human Rights Law Review 655.
Phuong, ‘The Relationship between the European Court of Human Rights and the
Human Rights Committee: Has the Same Matter Already Been Examined?’ (2007)
7 Human Rights Law Review 385.
Shelton, ‘Significantly Disadvantaged? Shrinking Access to the European Court of
Human Rights’ (2016) 16 Human Rights Law Review 303.
Tickell, ‘Dismantling the Iron-Cage: The Discursive Persistence and Legal Failure of a
“Bureaucratic Rational” Construction of the Admissibility Decision-Making of the
European Court of Human Rights’ (2011) 12 German Law Journal 1786.

54
Banković and Others v Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII,
Behrami v France and Saramati v France, Germany and Norway (dec.), no. 71412/01 and
78166/01, 2 May 2007.
 CHAPTER 4

Evolution or Revolution?
Interpretation of the Convention by the European
Court of Human Rights

The European Court of Human Rights (ECtHR or the Court) has long held
that the European Convention on Human Rights (ECHR or Convention) is a
living instrument to be interpreted in the light of present-day conditions. What
this means, in essence, is that the Convention is subject to evolutive interpre-
tation, i.e. its meaning can ‘evolve’ over time. As one might imagine, this is
hardly without controversy. Not only does it raise questions about the appro-
priate role of judges in ‘making’ law (as it is sometimes put) but also about
whether what the Convention is now said to mean (having been subject to evo-
lutive interpretation) is what the states actually signed up to. In other words,
to return to Chapter 1, is it legitimate when we consider what states consented
to when they ratified the Convention? Does evolutive interpretation mean that
states are being held to international standards to which they have never truly
consented? Or should states be presumed to consent to a human rights instru-
ment and its associated system of application and enforcement (such as the
ECHR and its infrastructure) as interpreted and applied by its assigned adjudi-
cator (in this case, the Court and, before that, the Commission and the Court)?
If so, how can this presumption can be justified?
Even if it is the case that states should be seen as consenting broadly to the
system as it develops and is applied (just as, for example, is the case with the
world trade system as understood, interpreted, and applied within the WTO’s
infrastructure of adjudication), it is clear that evolutive interpretation has the
potential to create tensions between the Court and the Contracting Parties.
At the very least, states may raise a metaphorical eyebrow when the Court
finds them to have obligations under the Convention that were not and could
not have been foreseen when they signed up to it; at its peak, this can under-
pin damaging claims that the Court is illegitimate. Given this context, we
might wonder why the Court engages in evolutive interpretation at all. Why
does it open itself up to claims of illegitimacy? What is the value that evolutive

71
  
72  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

interpretation brings to the Strasbourg system of human rights protection?

This is the first debate that we will consider here. Even if evolution might be
said to be valuable in a system designed to protect rights, determination of a
‘tipping point’ for such evolution can be hotly contested; the ‘tipping moment’
is the moment at which the law is ripe for evolution and the Court acts accord-
ingly. So, the second debate we will consider relates to precisely this question:
when does the Court decide it is time for evolution, and how does it come to
that decision? It is often assumed that evolutive interpretation broadens the
scope of human rights protection and improves human rights standards, but
is evolutive interpretation necessarily progressive, or can rights protection be
lowered by the application of the ‘living instrument’ doctrine? This is the third
debate that we will look at in this chapter.

Debate 1
Is evolutive interpretation of the Convention necessary?
The argument against evolutive interpretation is, in essence, an originalist one:
it is the claim that the document means what it meant when it was signed.1
Any development beyond that is illegitimate because it involves a Court (per-
ceived as undemocratic) ‘making law’. This is a common argument in relation
to written domestic constitutions, for example, but it is one to which there is
a compelling response in that context. Let us, for these purposes, analogise
the Convention to a constitution for a moment. Constitutions should have a
certain chrononomy: they should be able to account for the past, govern the
present, and accommodate the future.2
As society evolves, and as new governance challenges emerge, it is unlikely
that a strictly originalist approach to any text would allow for it to meet that
standard of chrononomy, and so one of three things must happen: the Consti-
tution must be formally changed to account for social change and new govern-
ance challenges; the Constitution must evolve (through judicial interpretation
and everyday constitutional practice) to govern contemporary society; or the
Constitution must be left to be unfit for purpose, governing only the phenom-
ena that can be squeezed into the text as it was at the time that it was written
and therefore failing to deal properly with social and legal phenomena that sub-
sequently develop. Each of these positions has its value and its drawbacks. The
first allows for popular rejuvenation of the constitutional landscape, although it
also brings a certain degree of instability. It can also be manifestly late and inef-
fective in dealing with complex current legal issues, as formal legal change is
often time consuming and (for good reasons) difficult to achieve. The second
allows for constitutions to evolve in order to ensure that all areas of govern-
ment activity are effectively governed by the constitutional acquis. Having said

1
The arguments of originalism are widely used in debates regarding the meaning of the
US constitution. See, for example, McGinnis and Rappaport, Originalism and the Good
Constitution (Harvard University Press, 2013).
2
Kay, ‘Constitutional Chrononomy’ (2000) 13 Ratio Juris 31.
 73
Evolution or Revolution?  

that, judicial interpretation resembles law-making and opens the courts to crit-
icism. The third option brings the virtue of legal stability and certainty whilst
also limiting the possibility of what some (derisorily) term ‘judicial activism’.3
The effectiveness of such documents is very limited as it is often impossible to
apply concepts that are over 50 years old to the current events.
Of course, the ECHR is not a constitution per se but some of these same
arguments might be said to arise in respect of it. The Convention emerged
in a very particular set of circumstances; when the continent of Europe (and
beyond) had just emerged from World War II and the Holocaust, when Europe
(and the world) was dividing into ‘the West’ and ‘the Rest’ in political terms,
and when political stability and peace were far from guaranteed. The Conven-
tion, then, had a certain context and was intended – as we said in Chapter 1 –
to achieve a particular outcome: to protect us from the re-emergence of total-
itarianism and to firmly identify human rights as having the capacity to limit
states’ desired actions. An originalist view of the Convention would say that
this is what the Convention was designed to do, and that this is all the Con-
vention is designed to do, so that using it to prevent the state from deporting a
suspected terrorist, or to require the state to recognise someone’s true gender,
is taking it too far. It is not what the states consented to.
Of course, whether this is right or not depends on one’s perspective on
what the Convention was for. Was the Convention designed in order to simply
protect the rights specified therein in the manner understood at the time? Or
was the Convention drafted to ensure that human rights would be an effective
limitation on state power? If the latter, then evolution of our understanding of
the rights therein is not only legitimate but also, arguably, necessary. Without
it, we might wonder whether, for example, rights implications arising from
developments in technology (e.g. internet surveillance, advances in genetics,
and assisted human reproduction) could be effectively addressed by applica-
tion of the Convention. A literal originalist approach to the meaning of the
Convention would suggest that the Court should not deal with any of those
issues, at least inasmuch as they give rise to novel questions of rights that did
not arise and would not have been contemplated in 1950; that the text of
the Convention has a clear and ‘true’ meaning, to which judges should limit
themselves.4 Even some enthusiasts of a restrained judiciary accept that the
shortcomings that would flow from such propositions show evolution in some
senses is necessary.5

3
For a full account of the role and value of judicial innovation in constitutional evolution see
de Londras, ‘In Defence of Judicial Innovation and Constitutional Evolution’ in Cahillane,
Gallen and Hickey (eds), Judges, Politics and the Irish Constitution (Manchester University
Press, 2017).
4
For a powerful critique in the ECHR context see Fredman, ‘Living Trees or Deadwood: The
Interpretive Challenge of the European Convention on Human Rights’ in Barber, Ekins and
Yowell (eds), Lord Sumption and the Limits of the Law (Hart Publishing, 2016).
5
See, for example, Hoffmann, ‘Judges, Interpretation, and Self-Government’ in Barber, Ekins
and Yowell (eds), Lord Sumption and the Limits of the Law (Hart Publishing, 2016).
74  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

It is worth noting, also, that the Convention’s status as an international

treaty also makes it ripe for evolutive interpretation. Given the role of consent
in creating intentional obligations, this may at first seem counter-intuitive,
but international law does not require a strict adherence to the idea of origi-
nal consent as the sole basis for obligation. Article 31(1) of the Vienna Con-
vention on the Law of Treaties provides that ‘[a] treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose’. The
context is expressly said to include ‘[a]ny subsequent practice in the appli-
cation of the treaty which establishes the agreement of the parties regarding
its interpretation’.6 Based on this, the established practice of Contracting
Parties in executing judgments of the Court including those featuring evo-
lutive interpretation and in not enacting Protocols to reverse or undo evo-
lutive understandings of the Convention at least suggests that states were
consenting not only to what the Convention might be said to have meant in
1950 but also to it being developed, understood and interpreted in a manner
that allowed for evolution. This is not entirely unusual in international law;
indeed, it might be said to be a common approach to human rights treaties,
which are generally considered to be dynamic in nature.7 Wessel argued that
one could arrange all treaties across a spectrum ranging from, on the one
extreme, ‘dynamic’ treaties and, on the other extreme, ‘end of game’ trea-
ties.8 The former treaties are concluded between cooperating parties in order
to promote common values; the latter are concluded to freeze a given set of
relations in existence at a certain moment in time. For Wessel: ‘[d]ynamic
treaties […] should be interpreted using relational contract principles, such
as the parties’ current practice’.9 The ECHR is clearly a dynamic treaty, which
was created to spread common values among the Contracting Parties.10 The
Preamble points out that it was concluded to further realise cooperation of
the Contracting Parties in the area of human rights protection. Therefore,
their subsequent practice in this area should be reflected in the judgments of
the ECtHR and the argument of ‘consent’ cannot, alone, sustain a claim of
illegitimacy.
That said, not all evolution is the same, and the extent to which one might
question the legitimacy of evolutive interpretation can differ depending on the

6
Article 31(3)(b).
7
In connection to the practice of interpretation under the American Convention on Human
Rights see Lixinski, ‘Treaty Interpretation by the Inter-American Court of Human Rights:
Expansionism at the Service of the Unity of International Law’ (2010) 21 European Journal of
International Law 585.
8
Wessel, ‘Relational Contract Theory and Treaty Interpretation: End-Game Treaties v.
Dynamic Interpretation’ (2004) 60 Annual Survey of American Law 149, 149.
9
Ibid., 150.
10
Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties (Part II)’ in Lammers (ed.),
Hague Yearbook of International Law (Martinus Nijhoff Publishers, 2009), para. 26.
 75
Evolution or Revolution?  

kind of originalism being adopted.11 Put relatively simply, one form of origi-
nalism demands that the text in question (here, the Convention) remain cryo-
genically frozen as at the time it was written so that it means only what it meant
then. It necessarily flows that such a claim is underpinned by an understanding
of terms that are used in human rights treaties, such as ‘torture’ or ‘arbitrary
detention’, having a clear and objectively determinable meaning; a claim that
is strongly disputed.12 In truth, a literal approach to originalism is somewhat
uncommon. Taken to its logical end point, it would require the Convention
to either be unfit for purpose, or constantly subjected to formal amendment
which, as we saw in Chapter 1, takes place by means of protocols and is a long
and difficult process which states can try to hold up for reasons that are not
always entirely bona fide.
A looser, and more common, approach to originalism holds that the meaning
of a text can be developed but only inasmuch as that reflects the original intent
of the founders/original drafters. This kind of originalism will be familiar to
those who have studied US constitutional law, in particular, although it is not
limited to that jurisdiction. It accepts that texts of a constitutional or qua-
si-constitutional nature do need to have some capacity for evolution and inter-
pretation, but limits that to what was originally intended by the text and thus,
in an international law setting in particular, to what might be said to have been
reasonably within the contemplation of the state at the point at which consent
was given. This type of originalism is also problematic, as it is often unclear
what the intention of the drafters of the Convention (or similar text) might
have been.
In the earlier days of the Court, it used evolutive interpretation to extend
protection under Article 8 to ‘illegitimate’ children in a case that illustrates
how thin the line between ‘interpreting in line with original intent’ and ‘evolv-
ing the Convention’ can be: Marckx v Belgium.13 At that time, Belgium treated
children whose biological parents were unmarried less favourably than children
whose biological parents were married. The Court had to consider whether this
violated the Convention, but of course the Convention said nothing about it
directly (although it does protect the rights to private and family life in Article
8), and the Belgian government argued that when the Convention was ratified
such differences were considered appropriate and, thus, acceptable by the Con-
vention standards. The Court disagreed:

It is true that, at the time when the Convention of 4 November 1950 was
drafted, it was regarded as permissible and normal in many European countries
to draw a distinction in this area between the ‘illegitimate’ and the ‘legitimate’

11
There is a voluminous literature on originalism, but the key competing accounts are well
presented in Solum, ‘What is Originalism? The Evolution of Contemporary Originalist
Theory’ in Huscroft and Miller (eds), The Challenge of Originalism: Theories of Constitutional
Interpretation (Cambridge University Press, 2011), 12.
12
Fredman, ‘Living Trees or Deadwood’ (above, n. 4).
13
Marckx v Belgium, 13 June 1979, Series A no. 31.
76  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

family. However, the Court recalls that this Convention must be interpreted in
the light of present-day conditions. In the instant case, the Court cannot but
be struck by the fact that the domestic law of the great majority of the member
States of the Council of Europe has evolved and is continuing to evolve, in
company with the relevant international instruments.14

There was, thus, a violation of the Convention. One might argue that this is in
line with the original intent of the Convention (to protect family and private
life, including the family life of people whose families were not based on mar-
riage), whilst another might say that it represented evolution because the states
accepted that ‘illegitimate’ children could be treated less favourably at the time
that the Convention was drafted. This kind of case – one that can arguably
be defended by reference to relatively plausible claims of original intent – is
not the kind of case most commonly singled out for criticism. Rather, cases
where the Court applies an evolutive approach in order either to depart from
its earlier decisions or to find Convention protection in respect of ‘emerg-
ing’ areas or claims not clearly contemplated by the Convention text are most
heavily criticised.
It is not entirely unusual for the Court to hold that its interpretation of the
Convention in an earlier case should be set aside in favour of a new interpre-
tation that has ‘evolved’ by reference to, for example, changing practice across
states or changing social and scientific understandings. Later in this chapter, we
will expressly consider the role of ‘European consensus’ in such cases, but for
now we can focus on the principled issue of evolution per se without necessarily
considering how the evolution is justified. The Court’s understanding of what
the Convention requires may develop over time. The best example is, perhaps,
the Court’s jurisprudence on whether one has a right to have one’s true gender
recognised by the state when one has a transgender identity.
In a line of cases, largely against the UK, that started in the 1980s15 the
Court was asked to consider whether the UK’s failure to fully recognise a pre-
ferred gender identity for post-operative applicants violated the Convention.
Under national law, some legal documents such as birth certificates could not
be changed even after gender reassignment surgery, and even though such
surgery could be provided on the National Health Service (i.e. by the state).
For more than a decade, the Court repeatedly found that the Convention
did not require full documentary recognition of reassigned gender; instead,
whether to recognise the reassigned gender was within the UK’s margin of
appreciation and was not required by Article 8. However, in these cases the
Court hinted that this would not always be the case; as law, science and society
developed this would not always remain within states’ discretion. This point
was reached in Christine Goodwin v the United Kingdom when the Court held:

Ibid., para. 41.

14

Rees v the United Kingdom, 17 October 1986, Series A no. 106; Cossey v the United
15

Kingdom, 27 September 1990, Series A no. 184.

 77
Evolution or Revolution?  

[T]he very essence of the Convention is respect for human dignity and human
freedom. Under Article 8 of the Convention in particular, where the notion of
personal autonomy is an important principle underlying the interpretation of its
guarantees, protection is given to the personal sphere of each individual, includ-
ing the right to establish details of their identity as individual human beings […]
In the twenty first century the right of transsexuals to personal development
and to physical and moral security in the full sense enjoyed by others in society
cannot be regarded as a matter of controversy requiring the lapse of time to
cast clearer light on the issues involved. In short, the unsatisfactory situation in
which post-operative transsexuals live in an intermediate zone as not quite one
gender or the other is no longer sustainable.16

Thus, the Convention’s Article 8 protection of private life was finally evolved
to positively protect the right to be recognised, officially, in one’s preferred
gender.
All approaches to evolution attract criticisms. One key objection is that evo-
lution creates instability in the law: a legal standard may change, even though
Contracting Parties have taken steps to ensure that its previous understanding
has been effectively incorporated into domestic legal standards. In this telling,
states cannot be sure what legal standard to apply for fear that it may change as
a result of judicial interpretation. There are at least three responses to this prag-
matic claim against evolutive interpretation.
First, it is not certain that such pragmatic considerations should be deter-
minative for the Court. Letsas has argued that the judges of the Court should
not enter into a cost-benefit calculation in deciding their approach to inter-
pretation; for him, problems associated with the lack of predictability must be
trumped by the moral value of human rights.17 However, one does not need
to endorse such a strong position in order to accept that pragmatic consid-
erations need not be determinative; this is not to say that they should never
be accounted for at all (after all, legal certainty is a value, and maintaining
legitimacy through consistency has positive implications for the Court’s overall
capacity to protect rights), but simply that they should not be given such
weight as to always prevent evolution where it seems normatively acceptable
to undertake it. So, a concern with legal certainty might ground the claim that
the Court should engage in evolution carefully and in a reasoned manner, but
it should not stop the Court from applying evolutive interpretation when that
is necessary to ensure effective rights protection.
Second, the fact that evolutive interpretation is used does not mean the
Convention is volatile. Often the possibility of evolution is signposted to Con-
tracting Parties in earlier cases. For example in the case of S.H. and Others v
Austria the Court considered whether the Austrian ban on using sperm and

Christine Goodwin v the United Kingdom [GC], no. 28957/95, ECHR 2002-VI, para. 90.
16

Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford

17

University Press, 2007), 74.

78  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

ova donation for in vitro fertilisation violates the Convention.18 The Grand
Chamber of the Court decided that it does not but informed the respondent
party that it needs to keep under review the developments in science and law
in this area,19 clearly signalling a potential evolution on this question in the
future. Thus, although the Court did not evolve the Convention in this case,
it made it clear that states must be prepared for this in the future, thus giving
‘fair warning’ of future potential change and dampening claims of volatility at
the time when that change comes.
However, in giving those signals, it is important that the Court maintains
consistency across its case law in an area, so that states know what the Court
might be looking out for in deciding whether the tipping point has been
reached. It does not always succeed in doing so. Let us return to the transgen-
der cases to illustrate this. In Sheffield and Horsham v the United Kingdom the
Court found that the failure to recognise preferred gender on state documents
did not violate the Convention, pointing to the lack of European consensus on
the matter.20 However, it signalled to the UK that it would monitor the situa-
tion, indicating that should a European consensus develop this would feed into
a change in the Court’s consideration of whether the Convention had been
violated. Only four years later, in Christine Goodwin v the United Kingdom,
the Court did find a violation,21 but on the basis of an international trend and
not a European consensus, thus opening itself up to criticism for seeming to
vary the benchmarks between cases on the same issue.22 Perhaps in recognition
of this, a similar ‘switch’ has not since occurred in any other area of evolutive
interpretation.
Third, even where the legal standard evolves with little advance warning,
the Contracting Party will in reality have some time to adjust its practices in
order to accommodate it: execution of a judgment is not expected overnight.
Indeed, quite unlike many national constitutional systems where a finding of
rights violation can result in the immediate strike down of a statute and a
resultant legal ‘gap’ that often needs to be filled quickly, a finding of violation
does not automatically disturb the national legal system which must, instead,
be expressly adjusted to execute the judgment. The claims as to certainty, then,
seem insufficient to ground a strong case against evolution.
On all bases, then, it seems difficult to sustain an argument of simple ille-
gitimacy for evolution per se, but this does not mean that there are no real
concerns here, particularly on the question of when the tipping point has been
reached and how the Court determines that. It is to this that we now turn.

18
S.H. and Others v Austria [GC], no. 57813/00, ECHR 2011.
19
Ibid., para. 118.
20
Sheffield and Horsham v the United Kingdom, 30 July 1998, Reports of Judgments and Deci-
sions 1998-V.
21
Christine Goodwin v United Kingdom (above, n. 16).
22
For a more in-depth discussion see Dzehtsiarou, European Consensus and the Legitimacy of
the European Court of Human Rights (Cambridge University Press, 2015), 65–71.
 79
Evolution or Revolution?  

Debate 2
How does the Court determine the moment of evolution?
As indicated above, the Court generally claims to be reflecting societal and
technological developments when it applies an evolutive approach to inter-
pretation, but of course this does not mean that the exercise is simply techno-
cratic. Instead, the Court must apply its judgement in identifying the moment
when there is sufficient development to justify evolutive interpretation and, as
a result, the Court clearly has significant discretion here. Depending on how
it interprets the prevailing conditions, the Court can speed up, slow down or
even veto certain developments in rights protection that could only be achieved
through evolutive interpretation.
Finding the right moment for evolution is crucially important for the effec-
tiveness and legitimacy of the Court: push for evolution too early and the judg-
ment might be never executed, do it too late and the Court might be perceived
as irrelevant and unwilling to address real-life rights violations. Whilst, as out-
lined below, the Court applies different approaches to ‘consensus’ in order to
try to identify whether the moment for evolution is ripe, the truth is that this is
ultimately a matter of judgement: it cannot be ‘scientifically’ determined.
In exercising its judgement on this matter, then, the Court is open to alle-
gations of illegitimacy both from Contracting Parties (along the lines outlined
in Debate 1) and from applicants and other interested parties who may com-
plain that the Court is going too fast, too slow, or in the wrong direction. The
clearest way to address these kinds of criticisms is to apply rigour, method and
clarity of reasoning in the decision to take an evolutive approach (or not). The
key technique that the Court uses in this respect is ‘consensus’.23 Although this
does not mean that the Court is applying discretion, it does provide it with
some indicia through which its assessment might be said to be grounded in
reality and, thus, its reasoning more persuasive. In other words, using consen-
sus reasoning can help to ensure that the Court is reflecting reality, rather than
creating law; i.e. to show judicial self-restraint in evolution.24
The Court uses four different kinds of consensus in doing this: European
consensus, international consensus, internal (i.e. domestic) consensus and con-
sensus among experts. Let us consider each in turn.

European Consensus
European consensus is a method of interpreting the ECHR that relies on com-
parative analysis of the law and practice of the Contracting Parties to the Con-
vention, which analysis may then justify evolutive interpretation. If the Court

23
Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the European
Convention on Human Rights’ (2011) 12 German Law Journal 1730.
24
de Londras and Dzehtsiarou, ‘Managing Judicial Innovation in the European Court of
Human Rights’ (2015) 15 Human Rights Law Review 523.
80  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

concludes that there is no European consensus on the rights-protection claim

that is before it, it usually decides that this is an issue on which Contracting
Parties enjoy a broad margin of appreciation. We will consider the margin of
appreciation in Chapter 5, but for now it is sufficient to say that where some-
thing falls within the state’s margin of appreciation it will have considerable
discretion to decide on its domestic legal and policy position in respect of it: a
range of different approaches will be permissible under the Convention, pro-
vided they comply to the basic requirements of the Article in question (e.g. are
limited by reference to what is ‘necessary in a democratic society’ etc.).
The case of Bayatyan v Armenia is a good illustration of how European con-
sensus can work.25 Here, the Court considered whether Article 9 was violated
where someone was punished for refusal to perform military service in contra-
vention of his beliefs as a Jehovah’s Witness. Accommodation of conscientious
objection had not previously been considered by the Court as a requirement of
the freedom of religious belief under Article 9.26 In Bayatyan the Court found
that a large number of Contracting Parties allowed for an alternative to mili-
tary service in order to respect conscientious objections. Thus, failure to do so
violated the Convention:

[T]he Convention is a living instrument which must be interpreted in the light

of present-day conditions and of the ideas prevailing in democratic States today.
Since it is first and foremost a system for the protection of human rights, the
Court must have regard to the changing conditions in Contracting States and
respond, for example, to any emerging consensus as to the standards to be
achieved.27

The Court noted that in the late 1980s and the 1990s there was an obvious
trend among European countries, both existing Council of Europe member
states and those which joined the organisation later, to recognise the right
to conscientious objection. All in all, 19 of those States which had not yet
recognised the right to conscientious objection introduced such a right into
their domestic legal systems around the time when the Commission took its
last decisions on the matter. Hence, at the time when the alleged interference
with the applicant’s rights under Article 9 occurred, namely in 2002–2003,
only four other member states, in addition to Armenia, did not provide for
the possibility of claiming conscientious objector status. Furthermore, three
of those had already incorporated that right into their Constitutions but had
not yet implemented that by law. Thus, already at the material time there was
nearly a unanimous consensus among all Council of Europe member states, the

25
Bayatyan v Armenia [GC], no. 23459/03, ECHR 2011.
26
Grandrath v Germany, no. 5591/72, Commission decision of 2 April 1973, Collection 43,
p. 161 and G.Z. v Austria (dec.), no. 5591/72, Commission decision of 2 April 1973, Collec-
tion 43, p. 161.
27
Bayatyan v Armenia (above, n. 25), para. 102.
 81
Evolution or Revolution?  

overwhelming majority of which had already recognised in their law and prac-
tice the right to conscientious objection.
The growth in the legal recognition of conscientious objections within the
Contracting Parties allowed the Court to justify departing from its previous
case law and establishing this standard of rights protection. This illustrates
the fact that European consensus can help to rebut the argument that evolu-
tion means uncertainty as developing trends across the Contracting Parties can
alert states to the possibility that the Court will evolve in jurisprudence in this
fashion. In this case, the developing tendency to recognise conscientious objec-
tion was manifest: Armenia was one of only a handful of Contracting Parties
that failed to accommodate such objections. Attention to the developing Euro-
pean consensus here would have mitigated any putative ‘surprise’ element.
This is not to suggest that European consensus is without criticism. It is,
for example, quite a conservative way to approach evolution: rather than lead
the way in developing human rights protection, the Court ‘follows’ trends in
the Contracting Parties. Whilst this may be considered appropriate given the
fact the Court is subsidiary, and the perceived limitations of appropriate judi-
cial activity, for some this approach is problematic. For these commentators,
human rights are standards that should be developed by reference to some-
thing more normatively rich than the sum of approaches that are taken by the
Contracting Parties. European consensus, or the ‘counting of states’, does not
seem to allow the Court to develop rights per se, but rather lets national trends
determine supra-national standards.28
This relates to a further critique of European consensus: that it is effectively
a majoritarian approach to human rights which should not, by their nature, be
determined by such an approach.29 This argument rests on the fact that one of
the roles of human rights law is to protect those persons and groups who are
underrepresented in democracy. Marginalities such as convicted criminals, chil-
dren or national, religious or sexual minorities do not always have the ‘clout’
to establish protection through national political or, indeed, judicial processes
and part of the role of institutions such as the ECtHR is to address that deficit
and protect their rights, even if that is unpopular within the relevant polity.
European consensus cuts across this by seeming to acquire its legitimacy from
reflecting domestic trends. There are three possible counter-arguments to this
undoubtedly strong point. First, the Court has in fact used European consen-
sus to protect the rights of these very marginalities: religious minorities,30 life-
long prisoners,31 ‘illegitimate’ children32 and homosexual men,33 for example,

28
For analysis of criticism of European consensus see Dzehtsiarou, European Consensus (above,
n. 22), 115–142.
29
See Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31
Journal of International Law and Politics 843.
30
Bayatyan v Armenia (above, n. 25).
31
Vinter and Others v the United Kingdom [GC], nos 66069/09 and two others, ECHR 2013.
32
Fretté v France, no. 36515/97, ECHR 2002-I.
33
Dudgeon v the United Kingdom, 22 October 1981, Series A no. 45.
82  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

have succeeded before the Court through leveraging a European consensus

approach. Second, consensus ensures the minimal standard of human rights
protection and the Contracting Parties are free to set a higher standard. Finally,
European consensus is not an automatic or strictly binding concept; the Court
can set it aside if there are convincing reasons to do that. Perhaps, in cases of
protection of some vulnerable minorities the Court might decide that in spite
of consensus the state may go beyond to go beyond or stay below the standard
of consensus because, for example, the state is in a situation of transition,34 or
the Court is satisfied that the people of the state in question hold a particular
moral position on an issue of profound moral disagreement.35 Furthermore, the
inquiry into whether or not a consensus exists is not necessarily the end of the
Court’s assessment; it has been known to question why an apparent European
­consensus either does or does not exist as a matter of fact, and whether Con-
tracting Parties are considering introducing similar laws, to determine whether
aE­ uropean consensus exists as a matter of judicial reasoning. This is well illus-
trated by the Court’s judgment in the controversial case of S.A.S. v France.36
In this case, the Court had to decide whether the French ban on wearing
full-face veils in public places violated Article 8 of the ECHR. The Court’s con-
sideration of comparative law in this case is particularly curious. It established
that ‘[t]o date, only Belgium has passed a law that is comparable to the French
Law of 11 October 2010, and the Belgian Constitutional Court has found it
compatible with the right to freedom of thought, conscience and religion’.37 In
other words, there was manifestly no consensus across the Council of Europe
in support of such a ban. In the past, the Court had stated that when only two
states deviate from the commonly accepted standard this indicates a very strong
consensus against the respondent state’s position.38 In S.A.S., however, the
Court observed that the issue of religious dress (especially full-face coverings)
is more pressing in some states than in others and that this has to be taken into
account when analysing the results of comparative legal research,39 so that the
lack of consensus in favour of allowing such a law did not stand against a finding
that such a law was compatible with the Convention. This was notwithstand-
ing the fact that there are clearly more than only two countries in Europe with
a substantial Muslim population,40 and these other states have not determined
that such a ban is required. The percentage of the population that identifies

34
Tănase v Moldova [GC], no. 7/08, ECHR 2010.
35
See, for example, the decision relating to abortion in A, B and C v Ireland [GC], no.
25579/05, ECHR 2010.
36
S.A.S. v France [GC], no. 43835/11, ECHR 2014.
37
Ibid., para. 40.
38
A, B and C v Ireland (above, n. 35), para. 235.
39
S.A.S. v France (above, n. 36), para. 156.
40
Data is taken from Pew Forum on Religion and Public Life. See ‘Muslim Populations
by Country: How Big Will Each Muslim Population Be by 2030?’, The Guardian,
available at https://www.theguardian.com/news/datablog/2011/jan/28/muslim-
population-country-projection-2030#data.
 83
Evolution or Revolution?  

as Muslim in the following Contracting Parties illustrates this well: Azerbai-

jan 98.4 per cent, Cyprus 22.7 per cent, Albania 82.1 per cent, Austria 5.1 per
cent, Bosnia and Herzegovina 41.6 per cent, Bulgaria 13.4 per cent, Georgia
10.5 per cent, Germany 5 per cent, Montenegro 18.5 per cent, the ­Netherlands
5.5 per cent, Macedonia 34.9 per cent, Russia 11.4 per cent, Sweden 4.9 per
cent and Switzerland 5.7 per cent. None of these countries introduced such a
ban. By means of comparison, 7.5 per cent of the French population and 6 per
cent of the Belgian population identify as Muslim. However, the Court deter-
mined that the lack of such a law in other states did not indicate a European
consensus against the ban of public display of religious headscarves:

[C]ontrary to the submission of one of the third-party interveners, there is no

European consensus against a ban. Admittedly, from a strictly normative stand-
point, France is very much in a minority position in Europe: except for Belgium,
no other member State of the Council of Europe has, to date, opted for such a
measure. It must be observed, however, that the question of the wearing of the
full-face veil in public is or has been a subject of debate in a number of European
States. In some it has been decided not to opt for a blanket ban. In others, such
a ban is still being considered.41

Although the Court’s reasoning in S.A.S. v France is open to criticism it shows

that the Court does not apply consensus automatically. European consensus
acts as a rebuttable presumption in favour of evolutive interpretation; namely,
if there is consensus or an identifiable trend then the Court will allow evolu-
tive interpretation of the Convention. This presumption can be rebutted if
there are reasons for which the respondent state can justifiably deviate from the
established trend.

International Consensus
The second type of consensus is consensus based on international law (inter-
national consensus), determined by analysis of international treaties mostly
signed and ratified by the Contracting Parties to the ECHR and the law and
practice of other international tribunals. Clearly, this is quite different to the
European consensus approach: rather than consider legal and policy positions
across individual states, the Court looks to international law per se.
The Court has used developments in international law to justify evolu-
tive interpretation on a number of occasions, including in its earlier cases. In
Marckx v Belgium, for example, the Court referred to two international con-
ventions (the Brussels Convention of 12 September 1962 on the Establishment
of Maternal Affiliation of Natural Children, and the European Convention of
15 October 1975 on the Legal Status of Children born out of Wedlock) in
determining that differential treatment of ‘illegitimate’ children was prohibited

41
S.A.S. v France (above, n. 36), para. 156.
84  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

by the Convention.42 Interestingly, neither of these was yet in force at the time;
rather they showed an emerging understanding and consensus across interna-
tional law that children whose parents were not married should not be treated
differently in law.
In a more recent case of Mamatkulov and Askarov v Turkey the Court has
also relied on developments in international law to justify evolutive interpre-
tation of the Convention.43 The key issue in this case was the legal force of
interim measures issued by the Court, i.e.:

urgent measures which, according to the Court’s well-established practice,

apply only where there is an imminent risk of irreparable harm. Such meas-
ures are decided in connection with proceedings before the Court without pre-
judging any subsequent decisions on the admissibility or merits of the case in
question.44

The vast majority of interim measures are of negative character; they oblige
the respondent state not to worsen the situation of the applicant. The most
common example is when the applicant is about to be removed to a country in
which she may be the subject of ill-treatment contrary to Article 3 of the Con-
vention; the Court can request the respondent state not to remove her before
the Court’s judgment in this case. More rarely, Contracting Parties are asked
to fulfil certain duties under interim measures. For example, the Court can
request the respondent party to transfer a sick inmate to a civil hospital.
In its earlier case law the Court held that interim measures were not legally
binding;45 however, it changed this position in Mamatkulov and Askarov.46
Having regard ‘to general principles of international law and the view expressed
on this subject by other international bodies since Cruz Varas and Others [in
which the Court stated that violation of interim measures does not violate the
Convention]’,47 the Court decided its interim measures should have legally
binding character. In reaching this decision, the Court expressly relied on the
practice of international tribunals such as the Inter-American Court of Human
Rights, UN Human Rights Committee, and International Court of Justice.
The use of international consensus to underpin evolutive interpretation
has a number of benefits. The Court itself has emphasised the importance

42
Marckx v Belgium (above, n. 13).
43
Mamatkulov and Askarov v Turkey [GC], nos 46827/99 and 46951/99, ECHR 2005-I.
44
Press Unit, Factsheet: Interim Measures (2016), Rule 39, Rules of Court. See also Keller
and Marti, ‘Interim Relief Compared: Use of Interim Measures by the UN Human Rights
Committee and the European Court of Human Rights’ (2013) 73 Zeitschrift für ausländis-
ches öffentliches Recht und Völkerrecht 325; Haeck, Burbano Herrera and Zwaak, ‘Strasbourg’s
Interim Measures under Fire: Does the Rising Number of State Incompliances with Interim
Measures Pose a Threat to the European Court of Human Rights?’ (2011) European Yearbook
of Human Rights 375.
45
Cruz Varas and Others v Sweden, 20 March 1991, Series A no. 201.
46
Mamatkulov and Askarov v Turkey (above, n. 43).
47
Ibid., para. 110.
 85
Evolution or Revolution?  

of external sources by pointing out that ‘[t]he Convention and its Protocols
cannot be interpreted in a vacuum but must be interpreted in harmony with
the general principles of international law of which they form part’.48 In Demir
and Baykara v Turkey the Court stated that it has ‘never considered the pro-
visions of the Convention as the sole framework of reference for the interpre-
tation of the rights and freedoms enshrined therein’.49 The ECHR is a part of
international law and some provisions of the Convention explicitly refer to it.50
Thus, it is quite sensible for the Court to attempt to ensure that the Conven-
tion is developed in a manner that is consistent with international law.
This has the additional benefit of attempting to ensure ‘systemic integra-
tion’ between international instruments and principles of international law,
rather than creating or exacerbating potential conflicts between them.51 We
already saw in Chapter 2 that states have multiple international obligations at
any given time, and that these may appear to be in conflict with one another, so
that bearing international law and practice in mind when developing the Con-
vention helps to create harmony between these obligations per se. This is not
only of benefit to the Contracting Parties, but also to international law itself of
which, of course, the Convention is a party; it is a way in which the Court can
contribute to the difficult but important task of trying to avoid the unnecessary
and/or unproductive ‘fragmentation’ of international law – a major concern
in that field.52
This is not to suggest that there are no potential criticisms of the Court
relying on international consensus in its decision making. Why should, for
example, an international treaty to which the respondent state is not a party
be taken into account in determining the nature and scope of its Convention
obligations? What about customary international law to which the state has
consistently objected? And how does the Court decide which international
treaties, or principles of international law, or (quasi-) judicial decisions it will
take into account from the vast field that is ‘international law’? All of this,
combined with the fact that the role of the Court is to develop, apply and
interpret the Convention and not to contribute to the development of inter-
national law per se, suggests that the Court ought to tread softly in the field
of international consensus, applying it in conjunction with a European con-
sensus analysis.

48
Marguš v Croatia [GC], no. 4455/10, ECHR 2014, para. 129.
49
Demir and Baykara v Turkey [GC], no. 34503/97, ECHR 2008, para. 67.
50
Articles 7, 15 and 35 of the Convention. The CDDH has discussed a proposal to include
‘the general principle that the Convention as a whole should be interpreted in harmony with
other principles of international law’ into the Preamble to the Convention. It has, however,
rejected this proposal because it would be time consuming whilst added value would be
limited. Report of the Steering Committee for Human Rights (CDDH), 101.
51
On the general importance of this see Koskenniemi, ILC, ‘Fragmentation of International
Law: Difficulties Arising from the Diversification and Expansion of International Law’ (2006)
UN Doc A/CN.4/L.682.
52
Ibid.
86  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Internal Consensus
The third type of consensus is internal consensus. In this type of consensus,
which is very rarely deployed, the Court attempts to establish a prevailing posi-
tion within the respondent state, which may then justify the state’s approach
being found compatible with the Convention even if it is in contrast with Euro-
pean and/or international consensus. Establishing such an internal consensus
is fundamentally challenging. In some cases, the national position may have
been determined by referendum of the people, so that the referendum results
are used to establish the internal consensus. However, even then the meaning
of referendum results is not always straightforward. Where a populace is given
a choice between, for example, Option A and Option B in a referendum all the
result tells us is which of these options the majority of those who voted pre-
ferred, not whether the ‘real world’ consensus is really in line with a putative
Option C for which they never had the opportunity to vote. This is well illus-
trated by the A, B and C v Ireland.53
In this case, the Court considered whether Ireland’s extremely restrictive
abortion regime (where abortion is available only where there is ‘real and sub-
stantial risk’ to the life of a pregnant woman) was compatible with the Con-
vention. Only three countries in Europe have a more restrictive abortion law
than Ireland: Andorra, Malta and San Marino. In contrast, 40 Contracting
Parties allow abortion if there is a risk to the mother’s health, suggesting that
there is European consensus towards allowing abortion on broader grounds
than available in Ireland. However, Ireland’s restrictive approach to abortion is
entrenched in the Irish Constitution and was placed there in 1983, by referen-
dum of the People.54 In subsequent referenda (in 1992 and 2002) the People
had voted on whether to restrict access to abortion further by expressly pro-
hibiting it in cases where the risk to the pregnant woman’s life emanated from
the risk of suicide, but this had twice been rejected. The People had never been
given an opportunity to vote to liberalise Ireland’s abortion law. Furthermore,
when negotiating both the Maastricht and Lisbon treaties at EU level, Ireland
had secured protocols to allow for the maintenance of the status quo regarding
abortion, seemingly in response to popular demand.55
Based on this, the Irish government argued that the law in Ireland repre-
sented the profound moral position of the Irish people and that this internal
consensus should mean that Ireland can maintain its particular stance on abor-
tion, in spite of the fact that it was out of line with the apparent European
consensus. Rather than focusing on the alignment in legal provision of abor-
tion across the 40 Contracting Parties that allow for abortion in cases where

53
See above, n. 35.
54
Article 40.3.3, Constitution of Ireland.
55
On the constitutional position on abortion in Ireland see, for example, de Londras, ‘Con-
stitutionalizing Fetal Rights: A Salutary Lesson from Ireland’ (2015) 22 Michigan Journal of
Gender and Law 243.
 87
Evolution or Revolution?  

the pregnant woman’s health is at risk, the Court noted that there is no con-
sensus (of any kind) on the question of when life begins. As this is central to
the question of whether and to what extent abortion might be made available
in law, states enjoy a wide margin of appreciation and where, as the Irish gov-
ernment claimed was the case in Ireland, there was an internal consensus that
could determine a restrictive abortion law regime that would be compatible
with the Convention.
We have previously argued that this case illustrates the Court identifying
a ‘trumping internal consensus’ for the first time in its jurisprudence, i.e. an
internal consensus that could trump the established European legal consen-
sus.56 Here the Court avoided evolving the Convention to protect a right to
access abortion, even though a European consensus appeared to exist. Clearly,
the concept of ‘trumping internal consensus’ is a dangerous one. On the one
hand, it allows the Court to avoid ‘forcing the hand’ of a state on a matter
of particular sensitivity, such as abortion. On the other hand, the idea that
a national sentiment could override an international standard found in the
Convention seems to fly in the face of supra-national rights protection per se.
Unquestionably, the fact that this case related to abortion was relevant: this
is an area on which there is profound moral disagreement so that the Court
might either have considered it inappropriate to ‘interfere’ or, indeed, might
have used the concept of consensus in some way to elide the fact that the
judges on the Court could not reach a consensus themselves on the difficult
moral question at hand.
Given the clear difficulties with using ‘trumping internal consensus’ it is
perhaps unsurprising that A, B and C is actually the only time it has been
deployed by the Court, although it is certainly not the only time a Contract-
ing Party has made such an argument. In the very first case in which the Court
deployed evolutive interpretation – Tyrer v the United Kingdom – the UK
attempted to rely on internal consensus. In this case, the Court considered
whether corporal punishment (‘birching’) of an underage offender in the Isle
of Man violated Article 3 of the ECHR.57 The government argued that ‘the
judicial corporal punishment at issue in this case was not in breach of the
Convention since it did not outrage public opinion in the Island’58; in other
words, birching was an accepted form of punishment there and, if the populace
was not outraged, should not be considered to violate Article 3. The Court
disagreed:

[E]ven assuming that local public opinion can have an incidence on the inter-
pretation of the concept of ‘degrading punishment’ appearing in Article 3 (art.
3), the Court does not regard it as established that judicial corporal punishment

56
de Londras and Dzehtsiarou, ‘Grand Chamber of the European Court of Human Rights, A,
B and C v Ireland’ (2013) 62 International and Comparative Law Quarterly 250.
57
Tyrer v the United Kingdom, 25 April 1978, Series A no. 26.
58
Ibid., para. 31.
88  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

is not considered degrading by those members of the Manx population who

favour its retention: it might well be that one of the reasons why they view the
penalty as an effective deterrent is precisely the element of degradation which it
involves. As regards their belief that judicial corporal punishment deters crim-
inals, it must be pointed out that a punishment does not lose its degrading
character just because it is believed to be, or actually is, an effective deterrent
or aid to crime control. Above all, as the Court must emphasise, it is never per-
missible to have recourse to punishments which are contrary to Article 3 (art.
3), whatever their deterrent effect may be. The Court must also recall that the
Convention is a living instrument which […] must be interpreted in the light
of present-day conditions. In the case now before it the Court cannot but be
influenced by the developments and commonly accepted standards in the penal
policy of the member States of the Council of Europe in this field.59

The approach in Tyrer is much more in line with how the Court has tended
to respond to arguments that ‘internal consensus’ might justify a position that
seems contrary to the Convention. This is not to say that internal consensus is
totally irrelevant. It may well be that where the Court is asked to apply evolu-
tive interpretation the internal consensus might be one factor in considering
whether the moment for possible evolution is ripe.

Expert Consensus
Finally, the most rarely used type of consensus is expert consensus. The Court
typically uses this type of consensus when it has to assess scientific develop-
ments in Europe and worldwide. For instance, in L. and V. v Austria, the appli-
cants challenged Article 209 of the Austrian Criminal Code, which provided
for a higher minimum age for consensual homosexual intercourse than for
heterosexual intercourse.60 The Court affirmed the decision of the Commis-
sion in Sutherland v the United Kingdom.61 This referred to ‘recent research
according to which sexual orientation is usually established before puberty in
both boys and girls and to the fact that the majority of Member States of the
Council of Europe have recognised equal ages of consent’. It explicitly stated
that it was ‘opportune to reconsider its earlier case-law in the light of these
modern developments’.62 Although expert consensus can support the Court’s
decision to resort to evolutive interpretation it is unlikely that it will be the
only or even the most conclusive argument used by the Court; rather, expert
consensus seems mostly to be used to provide broader context for the Court’s
decision.

59
Ibid., para. 31.
60
L. and V. v Austria, nos 39392/98 and 39829/98, ECHR 2003-I.
61
Sutherland v the United Kingdom, no. 25186/94, Commission’s report of 1 July 1997,
unpublished.
62
L. and V. v Austria (above, n. 60), para. 47.
 89
Evolution or Revolution?  

Debate 3
Is evolution necessarily progressive?
We often think about evolution as a linear process that improves human rights
standards and never allows for regression in rights protection; in other words,
as a progressive technique. However, this is not necessarily the case. In fact,
evolution can indeed be regressive, either because the Court has experienced
serious backlash in respect of an attempted progressive evolution, or because
there is a trend towards regression in a certain area that the Court is not willing
to try to halt. Prisoner voting neatly illustrates the first of these, whilst the
Court’s case law on Islamic dress illustrates the latter.
In Hirst v the United Kingdom (no. 2)63 the Court ruled that the UK’s
blanket ban on prisoner voting violates the Convention, but it did not clearly
outline what would be compatible with the Convention. It appeared clear that
the Convention did not require all prisoners to be allowed to vote, but there is
a considerable space between a blanket ban and blanket permission. The Court
addressed this in the next case it decided about prisoners’ right to vote: Frodl
v Austria.64 In this case it held that disenfranchisement of a prisoner would be
Convention-compatible only if it had been decided by a judge in the individual
case. This was, clearly, a burdensome standard requiring the question of dis-
enfranchisement to be individually considered for every prisoner. As we have
already discussed in Chapter 2, the Court’s early approach to prisoner voting
resulted in significant backlash, not least from the UK. It was in this context
that the Court appeared to evolve its position regressively in Scoppola v Italy (no.
3).65 In Italy those who are in prison for less than three years can vote: this is
clearly not a blanket ban, but it is also not the individual determination seem-
ingly required by Frodl. In this case, the Court decided that it had gone too
far in Frodl and found the Italian system compatible with the Convention. In
doing so, it stated that its reasoning in Frodl

takes a broad view of the principles set out in Hirst, which the Grand Chamber
does not fully share. The Grand Chamber points out that the Hirst judgment
makes no explicit mention of the intervention of a judge among the essential
criteria for determining the proportionality of a disenfranchisement measure.
The relevant criteria relate solely to whether the measure is applicable generally,
automatically and indiscriminately within the meaning indicated by the Court.
While the intervention of a judge is in principle likely to guarantee the propor-
tionality of restrictions on prisoners’ voting rights, such restrictions will not
necessarily be automatic, general and indiscriminate simply because they were
not ordered by a judge. Indeed, the circumstances in which the right to vote is
forfeited may be detailed in the law, making its application conditional on such
factors as the nature or the gravity of the offence committed.66

63
Hirst v the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX.
64
Frodl v Austria, no. 20201/04, 8 April 2010.
65
Scoppola v Italy (no. 3) [GC], no. 126/05, 22 May 2012.
66
Ibid., para. 99.
90  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

In other words, the Grand Chamber in Scoppola no. 3 ruled that the Chamber
in Frodl erred in its reading of what Hirst no. 2 required. This illustrates the
Court ‘evolving’ its own jurisprudence to seemingly reduce the level of rights
protection.
The Court’s jurisprudence on religious dress (and particularly Islamic dress)
demonstrates the second form of regression through evolution. Article 9 of
the Convention protects the right to freedom of religious belief, including the
right ‘to manifest […] religion or belief’. In the ECHR (as in other interna-
tional human rights systems) there is a distinction between the right to hold a
religion or belief (which is unlimited) and the right to manifest that religion
or belief (which can be limited, under Article 9(2) by ‘such limitations as are
prescribed by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others’).67 On the face of it, manifest-
ing religious belief through one’s dress seems relatively uncontroversial: it is
difficult to see how wearing a kippah, crucifix or niqab might endanger public
safety, public order or the rights and freedoms of others, so that one might rea-
sonably expect that to have a right to freedom of conscience or belief includes
having a right to dress in a manner that one considers to be compliant with
one’s religious belief. However, it now appears increasingly clear that this is not
the case under the ECHR, especially if you happen to be a Muslim woman who
wishes to be covered in public.
In Leyla S‚ ahin v Turkey68 and the previously discussed case of S.A.S. v
France69 the Court upheld prohibitions on the wearing of hijab in public uni-
versities (in Turkey) and face coverings in public (in France), finding them
to be permissible limitations on the right of freedom of religion. As already
discussed, in S.A.S. v France this was the case seemingly in contrast with the
apparent European consensus, whilst in S‚ ahin the decision was related to Tur-
key’s secular constitutional identity. In S‚ ahin, European consensus was also a
point of disagreement between the majority of the Court and the dissenting
judges. The Court claimed that there is no consensus in Europe in respect to
wearing headscarves in educational establishments. However, if the enquiry
were limited to religious dress in universities only (excluding schools, nurseries
etc.), then there were only three states in which such prohibition exists.70 In
the same time period, the mandatory display of the crucifix in Italian schools
was said not to violate Article 9 because, the Grand Chamber found, the cru-
cifix is not necessarily a religious symbol.71 These decisions illustrate that as the
Convention develops, or evolves, it does not necessarily do so in a progressive

67
See generally Sandberg, Law and Religion (Cambridge University Press, 2011), Chapter 5.
68
Leyla S‚ ahin v Turkey [GC], no. 44774/98, ECHR 2005-XI.
69
S.A.S. v France (above, n. 36).
70
Turkey, Azerbaijan and Albania. See Leyla S‚ ahin v Turkey (above, n. 68), para. 116.
71
Lautsi and Others v Italy [GC], no. 30814/06, ECHR 2011.
 91
Evolution or Revolution?  

way; rather it may happen in a way that fundamentally undermines the capac-
ities of people – especially women – to fully exercise their citizenship, broadly
construed, by expressing (sometimes complex) personal identities and engag-
ing in the public square.
Cases about Islamic dress are not solely about whether a state can tell a
woman what she may wear, but also about the overall potential costs in rights
terms of prohibiting a woman from wearing clothing that she considers to be
required by her religious beliefs. Where a woman is told, for example, that she
may not cover her face in public but considers herself bound by how she inter-
prets her religious belief to do so, she must make a stark choice: to break the
law, to act in conflict with her conscience and religious belief, or to shirk the
public square and all of the richness of life – and exercise of rights such as asso-
ciation and expression – that comes with it. Thus, cases of this kind have impli-
cations that are unquestionably regressive in both doctrinal and ‘real’ terms,
with disproportionate impacts on people who are already often marginalised,
in this case Muslim women who wish to dress in a manner that they consider
consistent with their religious beliefs.

Conclusion
In this chapter, we discussed the need for evolutive interpretation. Although
when deploying evolutive interpretation the ECtHR is open to the criticism
of judicial activism, the alternative to evolution is that the ECHR will not be
able to respond to contemporary developments, thus risking ineffectiveness
and related illegitimacy. In order to counter claims of illegitimate activism,
the Court adopts techniques such as European consensus to assess whether
­evolution on any particular issue or at a particular point of time might be
­apposite. The consensus argument is not homogenous and the Court uses
different evidence to justify the existence of consensus including comparative
legal analysis of the laws and practice of the Contracting Parties, international
treaties, expert opinions and popular opinions. Finally, evolution is not neces-
sarily p
­ rogressive; there are incidents of evolution in fact acting regressively and
narrowing the scope of protection allowed by the ECHR.

Further Reading
Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human
Rights (Cambridge University Press, 2015), Chapters 2 and 3.
Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties (Part I)’ in Lammers
(ed.), Hague Yearbook of International Law (Martinus Nijhoff Publishers, 2008).
Fredman, ‘Living Trees or Deadwood: The Interpretive Challenge of the European
Convention on Human Rights’ in Barber, Ekins and Yowell (eds), Lord Sumption
and the Limits of the Law (Hart Publishing, 2016).
Hoffmann, ‘Judges, Interpretation, and Self-Government’ in Barber, Ekins and Yowell
(eds), Lord Sumption and the Limits of the Law (Hart Publishing, 2016).
92  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford

University Press, 2009), Chapter 3.
Mowbray, ‘An Examination of the European Court of Human Rights’ Approach to
Overruling its Previous Case Law’ (2009) 9 Human Rights Law Review 179.
 CHAPTER 5

Accounting for Difference: Proportionality

and the Margin of Appreciation

We have already seen that the European Convention on Human Rights (ECHR
or Convention) sprang from, and purports to reflect, the common heritages
and values of European states (Chapter 1). However, this does not mean, of
course, that the 47 states of the Council of Europe are the same; some states
will have a particular constitutional commitment to secularism, and some not;
some will have endemic problems with political violence, others will not; and
so on. The Contracting Parties will also have different views on what the right
way of managing contentious issues is; where does the balance lie between the
state interest in, for example, secularism and the individual interest in wearing
a crucifix in public? There is more than one answer to this, just as there is to
a whole host of different questions relating to human rights, even within the
common politico-geographical space of the Council of Europe.
The European Court of Human Rights (the ECtHR or Court), then, has
had to develop ways of accounting for difference; of acknowledging that in
some cases there might be multiple potential approaches to managing a human
rights question, and that an approach may be rights compliant even if it is not
considered to be optimal. This chapter focuses on such techniques the Court
has developed: proportionality and the margin of appreciation.
The margin of appreciation might be broadly understood as the discre-
tion that states retain to determine their own legal and policy approaches to
questions (usually of particular contention), even where those approaches
have i­mplications as to rights. It is the ‘space for manoeuvre’ that the Court
is willing to afford the Contracting Parties in fulfilling their obligations under
the ­Convention.1 The margin of appreciation is closely linked to the test of
proportionality. This is essentially a ‘test’ or a ‘principle’ that requires that,
in acting in a manner that interferes with rights, the state must (a) have a

1
Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights
Jurisprudence (Springer, 1995), 13; Greer, The Margin of Appreciation: Interpretation and
Discretion under the European Convention on Human Rights (Council of Europe, 2000), 5.

93
  
94  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

legitimate objective in mind, (b) be acting in a manner that is related to this

objective, (c) interfere no more than is necessary to achieve that objective, and
(d) strike a reasonable balance between the need to achieve the objective and
the interference with rights. The Court will apply this test with varying degrees
of s­trictness depending on the circumstances: for example, interference with
political speech will be subjected to a heightened standard of scrutiny than
interference with commercial speech.2 Even where the Court has acknowl-
edged that a state has a margin of appreciation in respect of the particular issue
under consideration, it will usually deploy the proportionality test to assess
whether the action complained of remains within, or exceeds, that margin of
appreciation. Thus, the margin of appreciation impacts on the strictness of
scrutiny under the proportionality principle.
The margin of appreciation and proportionality are arguably the most aca-
demically contentious of the Court’s methods of the Convention interpreta-
tion, having generated a great many books, articles and collections.3 This is
partly because they may lead to different answers to similar questions asked
in different situations, and thus appear to endanger consistency of approach
and rights protection across the Contracting Parties. Furthermore, ascertain-
ing (dis)proportionality and identifying the margin of appreciation are hardly
exact sciences: in taking into account variable conditions such as national tradi-
tions, legal cultures, religious and developmental particularities and so on, the
Court seems to be treating different people’s claims to rights differently and in
a way that is not always foreseeable.
Ultimately, a proportionality analysis seeks to determine whether an appro-
priate ‘balance’ has been struck between competing interests. This is not some-
thing that is amenable to scientific determination. It is, rather, a matter of
judgement, in the fullest sense of the word. The resulting lack of precision is
one of the primary concerns that might be expressed in relation to proportion-
ality, but it is also one the structure of the test itself attempts to address. The
proportionality analysis does not ask whether the optimal or perfect balance
has been struck; only whether a proportionate balance has been found. Thus,
through this analysis the Court is trying to account for difference (of context,
experience, expertise etc.), but to do so in a transparent manner so that at the
very least the weighting given to the various factors (e.g. the alleged legitimate
objective being pursued) is made clear.
This is not to say, however, that the Court will always be able to determine
the question of balance; sometimes it will recognise that a topic is of such

2
Compare, for example, Bowman v the United Kingdom, 19 February 1998, Reports of
Judgments and Decisions 1998-I and Colman v the United Kingdom, 28 June 1993, Series A
no. 258-D.
3
Just to mention a few examples: Arai-Takahashi, The Margin of Appreciation Doctrine and the
Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, 2002); Benvenisti,
‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31 Journal of Interna-
tional Law and Politics 843; Kratochvil, ‘The Inflation of the Margin of Appreciation by the
European Court of Human Rights’ (2011) 29 Netherlands Quarterly of Human Rights, 324.
 95
ACCOUNTING FOR DIFFERENCE  

sensitivity, such profound disagreement, and such centrality to ‘national’ or

‘constitutional’ identity that the state ought to be allowed a wide margin of
appreciation in relation to it. Once the state, then, stays within that margin of
appreciation, its actions will pass Convention muster. This is certainly consid-
ered important by the Contracting Parties, which seem to want to nudge the
Court towards displaying ever more deference towards the decisions of the
national authorities. This is reflected in the symbolically important decision to
mention subsidiarity and the margin of appreciation in the Preamble once Pro-
tocol 15 comes into force.
The margin of appreciation is not limited to the qualified rights in Articles
8–11 of the Convention which are naturally fit for proportionality ­analysis;
the margin of appreciation can also exercise an independent function within
the Convention jurisprudence. Let us take Article 3, the right to be free from
torture, inhuman and degrading treatment or punishment, as an example.
This is an absolute right that contains at least three levels of protection: first,
the state’s negative obligation to refrain from torture, inhuman or degrading
treatment or punishment; second, its positive substantive obligation to protect
people from ill-treatment from other individuals; and, third, its positive pro-
cedural obligation to investigate situations of torture, inhuman or degrading
treatment or punishment. There is no margin of appreciation as regards the
negative obligation, but the Court has suggested that states do have some
margin of appreciation when it comes to the positive obligations.4
The key issues that will be discussed in this chapter are the issues of shape
and limits. We will first look into the test of proportionality. We will consider
if this test is needed and desirable in human rights adjudication: commenta-
tors tend to treat it variously as a useful tool, a necessary evil, or an ‘assault on
human rights’.5 In Debate 1 we return to the baseline question of whether
we need a proportionality approach to assessing rights claims. The margin of
appreciation is no less controversial than the test of proportionality; commen-
tators writing on it can be divided on those who think that there is no place for
any margin of appreciation in human rights adjudication,6 and those who think
that this is an appropriate concept that might be spread beyond the ECtHR.7
Debate 2 therefore will shed some light on the reasons behind these conflicting

4
See, for example, Vinter and Others v the United Kingdom [GC], nos 66069/09 and two
others, ECHR 2013, para. 120.
5
Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International Journal
of Constitutional Law 468.
6
Examples are multiple including Benvenisti, ‘Margin of Appreciation’ (above, n. 3), Letsas,
A Theory of Interpretation of the European Convention on Human Rights (Oxford University
Press, 2009).
7
See Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005)
16 European Journal of International Law 907; see also Gerards, ‘Pluralism, Deference and
the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 80, McGoldrick, ‘A
Defence of the Margin of Appreciation and an Argument for its Application by the Human
Rights Committee’ (2016) 65 International and Comparative Law Quarterly 21.
96  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

views. One of the key reasons for criticism of the margin of appreciation is that
its scope is difficult to define as its boundaries are set on a case-by-case basis.
Debate 3 addresses these concerns.

Debate 1
Do we need a proportionality analysis for rights adjudication?
Assessing whether or not a particular law, policy or state action is a propor-
tionate interference with rights involves a number of stages of analysis, and
a ­violation of the Convention can be established at any one of these stages.
Usually, we think about the stages of proportionality as being broken down
into questions, considered by the Court in turn. The questions are:

1. Was there an interference with an ECHR right?

2. Was the interference legal?
3. Did the interference pursue a legitimate aim?
4. Is the interference necessary in a democratic society?
5. Did the authorities balance the relevant public and private interests prop-
erly when they considered the interference?

The Court does not always address each of these steps expressly when consider-
ing a claim of disproportionate interference with rights (because, for example,
the interference is apparent and not disputed, or the legitimacy of the aim
pursued is accepted by all parties), but it is useful, when analysing the facts of a
particular case, to use them as the framework for assessing proportionality. Let
us therefore address them in turn.

Was there an Interference with an ECHR Right?

This stage can be called the ‘preliminary’ stage of proportionality, where the
Court assesses whether any Convention right is engaged by the impugned
action. If there was no interference by the respondent state then the Court
can either find no violation or declare an application inadmissible. In truth,
it is rare for the parties to dispute whether there was an interference. Usually,
the respondent state accepts the claim of interference, but argues that it was
justified. This is not to say that this preliminary question is never disputed.
In S. and Marper v the United Kingdom, concerning the retention of DNA
data about suspected criminals, the UK government argued that there was no
interference because the fingerprints and DNA samples collected during the
criminal investigation against the applicant were not used but only retained.8
The criminal investigation in question did not lead to a conviction. The Court

8
S. and Marper v the United Kingdom [GC], nos 30562/04 and 30566/04, ECHR 2008,
para. 63.
 97
ACCOUNTING FOR DIFFERENCE  

disagreed and found that Convention rights had been interfered with because
the samples might be used in future, and could provide sensitive personal infor-
mation about the applicants. In S. and Marper the Court then moved on to
the following stages of the test of proportionality and ultimately found a vio-
lation of the Convention. In general, if the Court is satisfied that there was an
interference then it moves on to the second stage of the test of proportionality.

Was the Interference Legal?

This stage can be called a ‘legality’ stage of proportionality, and reflects the
requirement in Articles 8–11 that interferences would be ‘in accordance with
the law’ (Article 8(2)) or ‘prescribed by law’ (Article 9(2), Article 10(2),
Article 11(2)). At this stage, the Court only assesses whether the respondent
state complied with its national law; a lack of legal basis in domestic law will
lead to a finding that the Convention has been violated. In Giacomelli v Italy,
for example, the Court found a violation because the authorities continued to
operate a hazardous waste plant although they were obliged to close it under
the national law.9 Thus, if there is no legal basis for the action the test of legality
is failed and a violation is established; unlawful action cannot be proportionate.
Conversely, if the interference is legal under the national law then the Court
moves to the next stage of the test of proportionality.

Did the Interference Pursue a Legitimate Aim?

This stage can be called a ‘legitimacy’ stage of proportionality, at which the
state identifies an objective that was being pursued by the impugned action. If
no legitimate aim is identified the Court will find a violation of the Conven-
tion. The legitimate aims are usually listed in the qualifying clauses of the rele-
vant right in the Convention, e.g. Article 8(2), Article 9(2), Article 10(2) and
Article 11(2). By means of example, Article 9(2) provides:

2. Freedom to manifest one’s religion or beliefs shall be subject only to such

limitations as are prescribed by law and are necessary in a democratic society in
the interests of public safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others (emphasis added).

The ECtHR applies a very light touch approach to governments’ claims that
they pursued a legitimate aim. A violation will only be established at this stage
where no aim is identified, or where the interference cannot be even remotely
linked to any of the legitimate aims. This is rare, although not unheard of. For
example, in Catan and Others v the Republic of Moldova and Russia the appli-
cants lived on a territory of the self-proclaimed Republic of Transnistria, which
is de jure a part of Moldova. The authorities of Transnistria decided to close

9
Giacomelli v Italy, no. 59909/00, ECHR 2006-XII.
98  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

some schools on its territory in which instruction was through Romanian, the
official language of Moldova. The Court held that these schools were closed as
part of ‘entrenching the separatist ideology’ of Transnistria and not in pursuit
of a legitimate aim. As a result, the Convention had been violated.10 Con-
versely, if a legitimate aim can be identified (even presumptively) the Court
moves on to the next stage of the proportionality analysis.

Is the Interference Necessary in a Democratic Society?

This stage can be called the ‘necessity’ stage of proportionality. Articles 8–11 of
the ECHR provide that every interference with the rights enshrined in these Arti-
cles should be ‘necessary in a democratic society’. In considering necessity, the
Court, having assessed whether there was a legitimate aim, assesses whether there
is a ‘reasonable relationship of proportionality between the means employed and
the aim sought to be realised’11 and whether there were less intrusive ways of
achieving the same result. For instance, in the case of Alekseyev v Russia the Court
held that the authorities had resorted to measures that were not necessary in a
democratic society when they banned a Gay Pride march.12 Here, the govern-
ment argued that this parade would provoke counter-demonstrations and cause
public disorder. The Court noted that ‘the authorities could have made arrange-
ments to ensure that both events [pro-LGBTQI and anti-LGBTQI] proceeded
peacefully and lawfully, allowing both sides to achieve the goal of expressing their
views without clashing with each other’.13 Doing that did not necessitate banning
the Pride parade, which was therefore not necessary in a democratic society. This
stage of analysis does not concern itself with whether the option taken is fair, or
whether the interference is disproportionate to the public interest to be achieved;
rather it is limited to questions of necessity, sometimes implicating effectiveness
of the approach taken.14 If the Court establishes that the measure is not necessary
in a democratic society it finds a violation; otherwise it moves to the next stage
of the proportionality test.

Did the Authorities Balance the Relevant Public and Private Interests
Properly When they Considered the Interference?
This stage can be called a ‘balancing’ stage of proportionality. Somewhat con-
troversially,15 it is not uncommon for the ECtHR to merge the necessity and
balancing stages, considering them both as part of its analysis of whether the

10
Catan and Others v the Republic of Moldova and Russia [GC], nos 43370/04, 8252/05 and
18454/06, ECHR 2012.
11
Lithgow and Others v the United Kingdom, 8 July 1986, Series A no. 102, para. 120.
12
Alekseyev v Russia, nos 4916/07, 25924/08 and 14599/09, 21 October 2010.
13
Ibid., para. 75.
14
Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’
(2013) 11 International Journal of Constitutional Law 466, 471.
15
Gerards, ‘How to Improve the Necessity Test’ (above, n. 14), 472–473.
 99
ACCOUNTING FOR DIFFERENCE  

measures taken were ‘necessary in a democratic society’.16 The key difference

is that during the balancing stage the Court is asking not whether the interfer-
ence was necessary or effective, but rather whether it fairly weighed the com-
peting interests against one another and reached a balanced conclusion. This
complex analysis is not amenable to a scientifically ‘correct’ answer: rights are
often in contest with one another, and finding the right ‘balance’ between
them is always challenging.17
Von Hannover v Germany illustrates this well. In this case, the Court con-
sidered whether the applicant’s right to privacy was breached. The applicant, a
member of royal family of Monaco, was photographed without her consent and
these photographs were published in a German tabloid. The German courts
favoured freedom of expression in this case and did not interfere, finding that
whilst there was an infringement of her privacy this was proportionate to the
public interest in her life as a public figure. Of course, here such actions of
the German authorities cannot be deemed as ‘unnecessary in a democratic
society’. Having balanced the competing interests of privacy for the applicant
and freedom of speech for the tabloid, the Court decided that there was a vio-
lation of Article 8 of the Convention; that the interference with her privacy
was disproportionate to the public interest in knowing about her private life.18
Here, as ever, the question of whether an appropriate balance was struck finally
determined the question of proportionality.
Critics of proportionality mount three major arguments relating to the test’s
utility, impact on human rights, and interference with substantive decision
making on the national level.
The utility critique claims that proportionality is not a means of reasoning
that helps effectively to resolve cases, but rather conceals discretionary and ad
hoc reasoning. This relates to the fact that the structure of the proportionality
analysis outlined above, and indeed the whole idea that a ‘balance’ can be iden-
tified with any certitude between different interests, suggests a kind of scien-
tific precision for proportionality, when in truth only some elements of the test
can be objectively verified (e.g. necessity, or legality) and the rest of the analysis
is a structured, but subjective, assessment. As Fontanelli argues, proportional-
ity ‘is a myth in which the form draws its nourishment from an impoverished
meaning’.19 Thus, the heart of this criticism is that the ECtHR represents this
as an objective test, and does not acknowledge that no precise scale for meas-
uring incompatible interests can be identified. The criticism is not, then, that
the assessment of proportionality is subjective per se; indeed, it is inevitably

16
See, for example, S.A.S. v France [GC], no. 43835/11, ECHR 2014.
17
Indeed, sometimes they might be said to ‘clash’; see Smet and Brems (eds), When Human
Rights Clash at the European Court of Human Rights – Conflict or Harmony? (Oxford Univer-
sity Press, 2017).
18
Von Hannover v Germany, no. 59320/00, ECHR 2004-VI.
19
Fontanelli, ‘The Mythology of Proportionality in Judgments of the Court of Justice of the
European Union on Internet and Fundamental Rights’ (2016) 36 Oxford Journal of Legal
Studies 630, 632.
100  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

so. It is, rather, that the Court denies this subjectivity when it pursues the
appearance of objectivity through a proportionality test. The subjectivity of
proportionality analysis is perhaps most clearly evident in the assignment by
the Court of varying weights to different interests in any particular scenario.
The recent Chamber judgment in Osmanoğlu and Kocabas‚ v Switzerland is an
apposite illustration.20
The applicants in this case were Turkish immigrants in Switzerland who
wanted their daughters to be exempted from mixed-sex swimming lessons.
Their request was refused, which they claimed violated their rights under
Article 9. They understood their Muslim faith as requiring a certain approach
to raising children, which included not allowing their daughters to undertake
swimming lessons together with boys. Switzerland argued that this was not
compatible with the Swiss way of life, and that the interference with Article 9
was proportionate in pursuit of public order and morality. To determine the
case, the Court ended up comparing the state’s interest in integrating immi-
grants into their society against the applicants’ religious beliefs. In this case,
the Court considered the state interest to be a legitimate one, the action
to be necessary, and the interference thus to be a proportionate interfer-
ence with rights. In other words, the Court prioritised integration over reli-
gious belief. One can imagine, however, the Court coming to precisely the
other conclusion; it is not clear why the Court here prioritises the integra-
tion rationale over religious belief. Either outcome is possible, and the inabil-
ity to predict which will be arrived at in a particular case makes the outcome
of a complaint difficult to foresee, and thus calls into question the effective-
ness of the Convention in ensuring practical protection of rights, including
at the stage of making the kinds of policy that mandate mixed-sex swimming
lessons regardless of the likely objections of people who follow a more con-
servative approach to religious beliefs and for whom this would likely cause
real difficulties, such as Orthodox Jews or devout Muslims. A similar obser-
vation could be made about cases in which the Court compares interests such
as the right not to be indoctrinated against the need to maintain cultural
traditions,21 or when the right to acquire information clashes with personal
privacy.22 The criticism of proportionality here is not, then, that it arrives at
the ‘wrong’ outcome – one might argue that balancing such interests is so
difficult that a range of possible outcomes might be defended – but rather
that its pretension to objectivity and exactitude elides the reality of subjective
reasoning in any given case.
The second criticism – that of the impact of proportionality on the value of
human rights – is somewhat more philosophical. Some commentators argue

20
Osmanoğlu and Kocaba‚s v Switzerland, no. 29086/12, ECHR 2017.
21
Lautsi and Others v Italy [GC], no. 30814/06, ECHR 2011.
22
See Von Hannover v Germany (no. 2) [GC], nos 40660/08 and 60641/08, ECHR 2012.
 101
ACCOUNTING FOR DIFFERENCE  

that proportionality reduces the value of human rights to the level of compar-
ing various interests.23 In fact, they say, human rights should be more than just
personal interests that can be equal or even sometimes subordinate to com-
munal preferences; that they should trump any other competing considera-
tions and the result of the case should follow from moral assessment of the
situation involving human rights.24 The ECtHR does not explicitly take this
approach. As the Osmanoğlu and Kocabas‚ judgment shows, communal inter-
ests can trump human rights in some circumstances. Moreover, proportionality
provides shortcuts for moral reasoning and does not explain the moral back-
ground of the decision taken. Tsakyrakis argues that

The adoption of a balancing test, according to the principle of proportionality,

risks neglecting the complexity of moral evaluation and, especially, the com-
plexity of rights. More specifically, it tends to overlook, or at least not appreci-
ate adequately, the fact that our moral universe includes ideas not amenable to
quantification, with the result that these ideas are not given due consideration
in our reasoning.25

This criticism is not accepted by all commentators. Moral reasoning as sug-

gested by Tsakyrakis might lead to even more subjective, speculative and unpre-
dictable results. People disagree about human rights and there is no universally
acceptable morality. Therefore, sometimes moral reasoning presents itself in a
form of imposing of personal biases of the judges sitting in the case. Such an
approach undermines the legitimacy of human rights adjudication. The uncer-
tainty and unpredictability of the results and seemingly ad hoc nature of the
reasoning in this case will not even be furnished by a structure that proportion-
ality provides.26
The final criticism of proportionality is that it involves the Court in a substan-
tive review of decisions taken on the national level. Where the ECtHR consid-
ers proportionality, its analysis might be perceived as constituting substantive,
rather than procedural, judicial review. This might exacerbate the kinds of ten-
sions about the appropriate judicial role that we already canvassed in Chapter
2. By means of illustration, in the case of Konstantin Markin v Russia the
Court considered whether the Russian law prohibiting male military personnel
from taking paternity leave was compatible with the Convention. The Court
had to balance the state’s reasons for prohibiting paternity leave (which related
to ‘national traditions’, military discipline and national security) against con-
siderations of gender equality. The Russian Constitutional Court had already

23
See, for example, Letsas, ‘Rescuing Proportionality’ in Cruft, Liao and Renzo (eds),
Philosophical Foundations of Human Rights (Oxford University Press, 2015).
24
Dworkin, Taking Rights Seriously (Harvard University Press, 1977), xi.
25
Tsakyrakis, ‘Proportionality’ (above, n. 5), 475.
26
For more see Dzehtsiarou, European Consensus and the Legitimacy of the European Court of
Human Rights (Cambridge University Press, 2015), 116–119.
102  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

had a chance to balance the same considerations and decided against allowing
male military servicemen to have access to parental leave; it considered that the
state had struck a permissible balance.27 The Chamber of the Court, however,
forcefully disagreed, holding:

[T]he core argument of the Constitutional Court in support of the limitation of

the rights of servicemen was that military service imposed specific demands in so
far as it required uninterrupted performance of duties by them and that, conse-
quently, the taking of parental leave by servicemen on a large scale would have a
negative effect on the fighting power and operational effectiveness of the armed
forces. The Court finds that argument unconvincing. It notes the lack of con-
crete evidence to substantiate the alleged damage to national security. There is
no indication that any expert study or statistical research was made to assess the
number of servicemen who would be in a position to take three years’ parental
leave at any given time and would be willing to do so. There is accordingly no
evidentiary basis for the assertion that the number of servicemen simultaneously
taking parental leave would be so significant as to undermine the fighting capac-
ity of the army. It follows that the Constitutional Court based its decision on a
pure assumption, without attempting to probe its validity by checking it against
statistical data or by weighing the conflicting interests of maintaining the opera-
tional effectiveness of the army, on the one hand, and of protecting servicemen
against discrimination in the sphere of family life and promoting the best inter-
ests of their children, on the other.28

Contrary to the decision of the Russian Constitutional Court, then, the

ECtHR decided that there was a violation of Article 8. For some, such an
outcome raises serious questions about whether the ECtHR is adhering to its
subsidiary character. In response, one might argue that the ECtHR can only
identify violations of the Convention; it does not have any power to invalidate
domestic laws and thus exercises an especially ‘weak’ form of judicial review
that makes substantive review relatively unproblematic. However, that argu-
ment ignores the fact that the Court’s decision is binding on the respondent
state under Article 46(1) (which we consider further in Chapter 8), even if the
state considers that the ECtHR has got the question of balance ‘wrong’ or the
issue is one on which reasonable people might reasonably disagree so that a
‘right answer’ might not easily be discernible. Even if the ECtHR’s review is
‘weak’, then, it is still legally binding, a situation that one might argue is par-
ticularly troublesome where the test being applied to assess whether there was
a violation is an imprecise one, as proportionality is.
There are, then, seemingly compelling arguments against the Court’s use
of a proportionality analysis. Why, then, does it persevere with it? The truth is
that proportionality analysis is a commonly deployed approach to the difficult
question of ‘balancing’ competing rights and interests in tribunals all over the

27
Konstantin Markin v Russia [GC], no. 30078/06, ECHR 2012.
28
Konstantin Markin v Russia, no. 30078/06, 7 October 2010, para 57.
 103
ACCOUNTING FOR DIFFERENCE  

world.29 This is not because any system considers that it is perfect or is unaware
of the criticisms already outlined but rather because, to paraphrase a famous
line of Churchill’s, proportionality is the worst form of reasoning, except for
all the others.
First, the structured nature of the proportionality analysis creates an ana-
lytical framework for the delicate assessments that competing interests and
rights necessitate, which in turn facilitates some transparency. Even if the reader
might not be convinced of why the Court came to a certain conclusion on
the question of balancing, the structure of the analysis at least outlines how it
came to that conclusion – or at least how it purports to have done so. If the
balancing analysis as outlined is inadequate this is quickly apparent from the
text of the judgment, and can form the basis of concerted scholarly engage-
ment with the reasoning and future attempts to convince the Court to revisit
its position.
Second, although the outcome of a proportionality analysis is sometimes
unpredictable, the highly structured nature of the assessment does bring an
element of foreseeability to how the analysis will proceed and to the arguments
that a state will need to make to ground a claim of proportionality. This is sig-
nificant not only in cases before the Court, but also potentially in the policy-
making process where the likely assessment of a contentious law in the ECtHR
(or a domestic court mirroring the Strasbourg framework of analysis) will
require legality, legitimacy, necessity etc. to be established. Thus, the structure
of the proportionality analysis in the Strasbourg jurisprudence may structure the
policy-making process, potentially reducing the likelihood of a disproportion-
ate law or policy being introduced in the first place.30 This reflects also the fact
that the judges and lawyers of the Court, the lawyers before it, and the lawyers
and policy makers at domestic level are now generally familiar with proportion-
ality as a method of reasoning: not only was the principle developed in Stras-
bourg after the example of, especially, the German Constitutional Court, but
so too has its development in the ECtHR influenced the use of proportionality

29
For a comparative overview see Pirker, Proportionality Analysis and Models of Judicial
Review (Europa Law Publishing, 2013) and Stone Sweet and Mathews, ‘Proportionality
Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law
73. Some key judgments on proportionality include the following from the European Court
of Justice: Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide
und Futtermittel, 1970 ECR 1125, 1136; UK: R (Daly) v Secretary of State for the Home
Department [2001]; Germany: the German Constitutional Court began using this principle
almost from the very beginning, see BVerfGE 3, 383 at 399 (1954); it is used in Israel: HCJ
2056/04 Beit Sourik Village Council v The Government of Israel PD 24 [2004]; and in Canada:
R v Oakes [1986] 1 SCR 103 [Oakes].
30
In both Ireland and the UK, for example, ‘organs of the state’ (Ireland) and ‘public authori-
ties’ (UK) are required to undertake their work in accordance with the ECHR and can thus be
expected to consider proportionality when making policies and proposing laws that have Con-
vention implications. See s. 6, Human Rights Act 1998 (in the UK) and section 3, European
Convention on Human Rights Act 2003 (in Ireland).
104  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

analysis in other Contracting Parties’ domestic law. Very simply put, propor-
tionality is now a familiar and in some jurisdictions fundamental approach to
reasoning about rights that it would be difficult, if not impossible, to abandon.
Indeed, for all its difficulties as outlined above, proportionality has
much to commend it as an approach to undertaking judicial review of the
Convention-compatibility of state action whilst maintaining respect for the
principle of subsidiarity. Although there are legitimacy concerns associated
with the test of proportionality, it leaves ample space for subsidiarity and def-
erence through the mode of margin of appreciation. As already mentioned,
and further considered below, where the issue in question is one in relation to
which states enjoy a broad margin of appreciation, the strictness with which
the Court scrutinises proportionality will be lightened, whereas where there is
a narrower margin of appreciation the analysis will be strict. Proportionality,
thus, allows the Court to attempt to walk the very delicate line between super-
vising the Convention and not trespassing too far on the sovereignty of states.

Debate 2
Should national authorities have a margin of appreciation in
respect of human rights protection?
The ECHR does not contain a definition of the margin of appreciation; indeed,
as it stands the margin of appreciation is never mentioned within the text of
the Convention (although it will appear in the Preamble once Protocol 15
comes into force). Moreover, the Court has never clearly given a definition of
it. There are, however, many scholarly definitions. For O’Donnell, ‘margin of
appreciation refers to the latitude allowed to the member states in their obser-
vance of the Convention’.31 Yourow defines the margin of appreciation in the
following terms:

The national margin of appreciation or discretion can be defined in the Euro-

pean Human Rights Convention context as the freedom to act; manoeu-
vring, breathing or elbow room; or the latitude of deference or error which
the Strasbourg organs will allow national legislation, executive, administrative
and judicial bodies before it is prepared to declare a national derogation from
the Convention, or restriction, or limitation upon a right guaranteed by the
Convention, to constitute a violation of one of the Convention’s substantive
guarantees.32

Letsas argues that the margin of appreciation as applied by the Court has
at least two meanings: substantive and structural. A substantive margin is
deployed when the Court considers whether the state rightly interfered with

31
O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the
European Court of Human Rights’ (1982) 4 Human Rights Quarterly 474, 475.
32
Yourow, The Margin of Appreciation Doctrine (above, n. 1), 13.
 105
ACCOUNTING FOR DIFFERENCE  

personal rights to protect collective goals such as public order or public health
or morals. In contrast, the structural margin of appreciation reflects the need
for institutional deference of the Court to the national authorities. For Letsas
the latter may be justified, but the former is intensely problematic. He writes:

The idea of the margin of appreciation in itself clearly lacks any normative force
that can help us strike a balance between individual rights and public interest.
Whether the complained acts fall within or outside the margin of appreciation,
whether that is, the interference with the freedom is permissible all things con-
sidered, is what the Court in each case is asking.33

A structural approach to the margin of appreciation is, perhaps, more justi-

fiable. The Court itself often points to this concept of the margin in its oft-
repeated mantra that the national authorities are better placed than the Court
to assess the situation and make relevant decisions.34 The Court decides not to
interfere here because the States know better how to secure human rights in a
particular situation and therefore they enjoy a margin of appreciation. We will
see this in particular in the context of (national) security in Chapter 6.
However, even the structural approach to the margin of appreciation raises
questions as to how to justify the Court’s deference to national authorities.
Two primary arguments are advanced. The first is that it is the national author-
ities, rather than Strasbourg, which have democratic legitimacy to deal with
complex human rights issues. Of course, this rests heavily on the assumption
that all member states to the Council of Europe are well-functioning democ-
racies, which is certainly not always the case. However, even if this were a sus-
tainable assumption, one might note that a democratic mandate is not the only
source of legitimacy that an institution can rely upon in making decisions as to
rights.35 Indeed, it might even be argued that rights are such that they, perhaps,
ought not to be determined solely by majoritarian structures such as politics,
and that instead process, participation and outcome might all be important
sources of legitimacy. Thus, whilst the argument of democratic legitimacy pro-
vides a compelling grounding for the margin of appreciation it does not, alone,
provide a complete justification.
The second argument for a margin of appreciation is that national authori-
ties have more expertise to solve difficult human rights questions as they arise
at the national level because they are better exposed to the national dynamics,
debates and contexts which influence the ‘real world’ impact of political and
legal decisions in sensitive right areas. The Court itself has tended to endorse
this approach, holding that ‘[b]ecause of their direct knowledge of their

33
Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal
Studies 705, 711.
34
Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (above, n. 7), 104;
see also Bakircioglu, ‘The Application of the Margin of Appreciation Doctrine in Freedom of
Expression and Public Morality Cases’ (2007) 8 German Law Journal 711, 717.
35
See, for example, Lever, ‘Is Judicial Review Undemocratic?’ (2007) Public Law 280.
106  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

society and its needs, the national authorities are in principle better placed than
the international judge to appreciate what is “in the public interest”’.36 This
assumption, however, needs to be tested. Tsarapatsanis argues that whether the
ECtHR is better or worse at deciding complex human rights dilemmas might
depend on a myriad of factors, and without extensive empirical research it is
difficult to make any conclusions. Moreover, such conclusions might differ in
relation to different rights and different states, and even different institutions
within the same state.37 In other words, familiarity with the domestic context
does not necessarily put the national authorities into a better position to deter-
mine questions of rights.
Why, then, does the Court continue to use the concept of the margin of
appreciation? For some commentators, it is simply a technique for abdicating
judicial responsibility and results in a denial of justice, leaving (often margin-
alised) people to the mercy of the decisions of the domestic authorities pro-
vided they are not manifestly and unanswerably disproportionate and absolute
denials of Convention rights.38
In contrast, Legg argues that the margin of appreciation is best understood
as a useful tool allowing the Court to take into account considerations that
are contextual and not immediately relevant to the matter at hand, but at the
same time worthy of being weighed in the balance. He defines the margin
of appreciation as ‘an adjudicatory technique enabling the [Court] to navi-
gate a course through the competing considerations, and provides a vehicle
through which lawyers for states and applicants can make their claims’.39 Legg
uses the theory of practical reasoning to argue that in arriving at a particular
decision the ECtHR uses both first-order and second-order reasons. First-or-
der reasons are immediately relevant to the case at hand; they relate directly
to the questions raised. Second-order reasons are less manifestly relevant but
determine the context in which the case is taking place, such as broader soci-
etal conditions or political structures. Legg uses an example of a person who
‘because of tiredness decided not to assess whether or not to accept an invest-
ment proposal, thus losing the opportunity’.40 In this example tiredness is the
second-order reason since it is not directly relevant to the matter at issue but
can have a substantive effect on the final decision. The first-order reasons would
be the interest that would have been earned if the investment went ahead, the
risk assessment, the availability of necessary funds and so on. Tiredness here is

36
James and Others v the United Kingdom, 21 February 1986, Series A no. 98, para. 46.
37
Tsarapatsanis, ‘The Margin of Appreciation Doctrine: a Low-Level Institutional View’
(2015) 35 Legal Studies 675.
38
See Benvenisti, ‘Margin of Appreciation’ (above, n. 3), Macdonald, ‘The Margin of Appre-
ciation’ in R. Macdonald et al. (eds), The European System for the Protection of Human Rights
(Martinus Nijhoff 1993).
39
Legg, The Margin of Appreciation in International Human Rights Law (Oxford University
Press, 2012), 58.
40
Ibid., 18.
 107
ACCOUNTING FOR DIFFERENCE  

an exclusionary second-order reason that prevents any considerations of the

first-order reasons.41 Within Legg’s argument, second-order reasons can influ-
ence the significance (or weight) attached to first-order reasons: ‘[t]he [Court]
considers the first-order reasons, and applies second-order reasons to them.
The second-order reasons may cancel out, strengthen or reduce the ordinary
weighting of first-order reasons’.42 Under this approach, the margin of appre-
ciation simply allows for decisions as to weighting to be made: where there
is a broad margin of appreciation the first-order reasons for finding violation
should be particularly weighty; where there is a narrow or no margin of appre-
ciation much less convincing first-order reasons can justify a violation of the
Convention.
Whilst Legg’s argument is attractive in explaining how the margin of appre-
ciation can assist in structuring the Court’s reasoning, it does not fully address
the major criticism that is levied against it: that its impact is such as to leave
some people without relief before the Court simply because the rights, topic or
context is such that the Court prefers to avoid making a decision as to rights.
Macdonald opines that the Court uses the margin of appreciation when it does
not want to provide reasons for its decision not to interfere;43 Benvenisti argues
that the margin of appreciation is a dangerous doctrine that undermines the
universality of human rights because it introduces varying standards of human
rights protection.44 The criticism is not limited to scholarly reflection on the
margin of appreciation. Judge De Meyer, for example, has famously argued
that:

The empty phrases concerning the State’s margin of appreciation – repeated in

the Court’s judgments for too long already – are unnecessary circumlocutions,
serving only to indicate abstrusely that the States may do anything the Court
does not consider incompatible with human rights. Such terminology, as wrong
in principle as it is pointless in practice, should be abandoned without delay.45

In spite of the criticism of the margin of appreciation, however, the Court

continues to use it. Why? Simply put, the doctrine is deeply embedded in
the reasoning of the Court and is considered important by the Contracting
Parties; recall that they have insisted on its appearing in the Preamble once
Protocol 15 comes into force. Any attempt to abandon the margin of appre-
ciation now would seem incredibly difficult and would be likely to attract
criticism from the member states. This is largely because the Court is a sub-
sidiary body that needs to allow the Contracting Parties some space to deal

41
For more examples, see Ibid., 18–23.
42
Ibid., 195.
43
Macdonald, ‘The Margin of Appreciation’ (above, n. 38), 85.
44
Benvenisti, ‘Margin of Appreciation’ (above, n. 3).
45
Z. v Finland, 25 February 1997, Reports of Judgments and Decisions 1997-I, dissenting
opinion of Judge De Meyer.
108  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

with the local human rights challenges and carefully consider their decisions.
Ideally, interaction between the Court and the national authorities would be
non-hierarchical and dialogic, notwithstanding the fact that, as we discuss in
Chapter 8, the Court’s judgments are binding on the states to which they are
addressed. This is because implementation of the Convention is based on a
sense of collective responsibility between the ECtHR and national authori-
ties. If there is a shared responsibility for protecting human rights, then – the
argument goes – there should be a shared decision-making power between
the Contracting Parties and the ECtHR. Should one accept this, one might
argue that the margin of appreciation allows the Court to maintain effective
implementation of the ECHR by not doing too much too soon, and thus
avoids undermining trust and co-working between the national and Euro-
pean institutions.
Thus, whether one considers the margin of appreciation to be justifiable is,
in essence, connected to how one conceives the role of the Court. If it is to
grant individual justice in all cases that come before it there seems to be limited
justification for the margin of appreciation. However, if the Court’s role is
more broadly to ‘assum[e] a central coordinating role in implementing the
ECHR, by closely cooperating with national institutional agents, which com-
prise legislatures, courts and administrative agencies’46 the margin may seem a
sensible, if not essential, principle for the Court to have developed and to con-
tinue to apply.

Debate 3
What are the boundaries of the margin of appreciation?
Even those who agree that the margin of appreciation is conceptually appro-
priate often criticise how it is applied in practice. Lord Lester famously called
it ‘slippery and elusive as an eel’,47 Yourow points out that ‘the contours of
margin analysis are too vague, that the substantive content of the doctrine is
too elusive and that it can be invoked to reach both pro-rights and pro-state
holdings without the benefit of developing substantive doctrinal consistency’,48
and Gerards opines that ‘the court frequently just mentions the margin of
appreciation test and some factors determining its width, without explaining
what the precise scope of the margin in the concrete case should be’.49 Thus,
even if one accepts that the margin of appreciation might be sustainable, ques-
tions arise about how the breadth of the margin should be determined, and
what factors should be taken into account.

46
Tsarapatsanis, ‘The Margin of Appreciation Doctrine’ (above, n. 37), 684.
47
Lester, ‘Universality Versus Subsidiarity: A Reply’ (1998) European Human Rights Law
Review 73, 75–76.
48
Yourow, ‘The Margin of Appreciation Doctrine’ (above, n. 1), 152.
49
Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (above, n. 7), 106.
 109
ACCOUNTING FOR DIFFERENCE  

The Nature of the Implicated Right

The first stage in deciding how wide the margin of appreciation should be in
any case is to determine the quality of the implicated right as it relates to the
margin. In this respect, one can suggest that the rights enshrined in the Con-
vention can be divided into four groups.
First, the Court has never used margin of appreciation in relation to neg-
ative obligations under absolute rights. Having said that, the relativity that
is often reflected in the Court’s references to the margin of appreciation can
even be found in relation to the most absolute of all rights: the prohibition
of torture, inhuman and degrading treatment and punishment under Article
3,50 for example when determining whether the treatment complained of has
reached the minimal level of severity to engage Article 3.
The second group is positive obligations under any right of the Convention
and its Protocols, in relation to which states do enjoy a margin of appreciation.
This is true even in relation to the positive obligations that arise under Article
3: states can decide how to fulfil its obligation to protect people from torture,
for example, with the Court intervening only if the actions are manifestly defi-
cient. The case of M.C. v Bulgaria illustrates this well. The applicant was an
underage victim of an alleged rape, which was not prosecuted by the Bulgarian
authorities because the victim did not physically resist. It was alleged that this
violated the positive obligation to protect people from torture, inhuman and
degrading treatment or punishment. Although the Court held that actions of
state authorities were so inadequate that they fell outside of Bulgaria’s margin
of appreciation, it stated that ‘in respect of the means to ensure adequate pro-
tection against rape, States undoubtedly enjoy a wide margin of appreciation.
In particular, perceptions of a cultural nature, local circumstances and tradi-
tional approaches are to be taken into account’.51
The third group is the qualified rights, in relation to which states enjoy a
margin of appreciation. Shany identified three ways in which the Court applied
the margin of appreciation to qualified rights: in the application of law to facts,
in norm-balancing in law application, and in norm-balancing in law inter-
pretation.52 The margin of appreciation in the application of law to facts is
evident in the so-called immigration cases under Article 8. According to the
well-established case law, an immigrant cannot be expelled if his family life will

50
In order to be prohibited by Article 3 certain treatment should reach a minimal level of
severity. Compare the Chamber and Grand Chamber of the ECtHR in Janowiec and Others
v Russia to see that judges disagree about what this level of severity actually means. Janowiec
and Others v Russia, nos 55508/07 and 29520/09, 16 April 2012 and Janowiec and Others v
Russia [GC], nos 55508/07 and 29520/09, ECHR 2013.
51
M.C. v Bulgaria, no. 39272/98, ECHR 2003-XII, para. 154.
52
Shany, ‘All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine
by the European Court of Human Rights and the UN Human Rights Committee’ (January 1,
2017). Journal of International Dispute Settlement (Forthcoming); Hebrew University of Jerusa-
lem Legal Research Paper No. 17–16, available at SSRN: https://ssrn.com/abstract=2925652.
110  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

be disproportionately impacted as a result. In these circumstances, the states

are given wide margin of appreciation in assessing whether the applicant has
indeed established any family life in the host country, i.e. as to the determina-
tion of facts and subsequent application of law thereto.53 The margin of appre-
ciation in norm-balancing in law-application can be illustrated by reference to
the accommodation of religious beliefs under Article 9. For instance, in Lautsi
and Others v Italy54 the Court decided that the Italian authorities could restrict
the right of the applicant not to be exposed to religious symbols due to the
breadth of the margin of appreciation the authorities enjoyed in accommo-
dation of Article 9. Here, then, the authorities had a wide margin of appre-
ciation in their application of the law (requiring the display of the crucifix in
school) to the facts (of a non-Christian pupil’s exposure to that crucifix). The
margin of appreciation in norm-balancing in law interpretation arises where
the state is determining the scope of a particular right. This is a particularly
challenging aspect of the margin of appreciation, creating problematic differ-
ences in standards that in turn might undermine the universality of the human
rights standards. The ongoing litigation on whether there is a right for same-
sex couples to access marriage under Article 12 illustrates this well. In Oliari
and Others v Italy the Court appeared to suggest that the Contracting Parties
have a margin of appreciation in deciding whether to implement any legislative
reforms as to recognition of homosexual relations, although here the Consti-
tutional Court of Italy called for relationship recognition which was not pro-
vided, thus causing a violation.55 A similar outcome was reached in A, B and
C v Ireland where the Court held that the extent to which abortion should
be legally available was within the margin of appreciation of the states, but
that where the law did provide for access this must be facilitated and cannot
be illusory.56 The application of the margin of appreciation in terms of norm-
balancing in law interpretation readily illustrates how it can help the Court to
negotiate the narrow space between a rock and a hard place. Marriage equal-
ity, abortion and the right to choose the time and nature of one’s dying are
situations in which there are longstanding and unresolved tensions in ethics,
politics and international law. It is clear that should the Court require Russia,
for example, to legalise same-sex marriage, or Malta to make access to abor-
tion available without restriction this would cause an enormous outbreak of
criticism, and the judgments would likely not be executed. The key question,
then, is whether the Court should be principled and ignore the reality of this
likely reaction, or whether it should accommodate the differences in national
context and tolerate varying levels of protection across the continent. Seeing
those national contexts as second-order reasons, in Legg’s argument, leads one

53
Harris et al., Harris, O’Boyle and Warbrick Law of the European Convention on Human
Rights (3rd edn, Oxford University Press, 2014), 577.
54
Lautsi and Others v Italy (above, n. 21).
55
Oliari and Others v Italy, nos 18766/11 and 36030/11, 21 July 2015.
56
A, B and C v Ireland [GC], no. 25579/05, ECHR 2010.
 111
ACCOUNTING FOR DIFFERENCE  

certainly to favour the latter, although that unquestionably causes those likely
to be least able to leverage national politics in their favour in homophobic,
misogynistic and socially repressive domestic political environments wondering
whether and how the ECtHR can truly be said to be a ‘beacon of light’ from
their perspective.
The fourth group of rights is the so-called super-qualified rights in relation
to which an even broader margin of appreciation is provided. Unlike qualified
rights, legal provisions enshrining rights of this category do not list legitimate
aims for which they can be restricted; rather they can be limited in pursuit of
any aim provided that they do not cut into the core of the right. Because these
rights are ‘so’ qualified, the states enjoy a remarkably broad margin of appreci-
ation. Perhaps the best example is the right to free elections under Article 3 of
Protocol 1. This provides:

The High Contracting Parties undertake to hold free elections at reasonable

intervals by secret ballot, under conditions which will ensure the free expression
of the opinion of the people in the choice of the legislature.

The broad margin of appreciation enjoyed by states in organising their elec-

toral systems under Article 3 of Protocol 1 is well illustrated by Yumak and
Sadak v Turkey. At the time, Turkish law set a particularly high 10 per cent
nationwide threshold for a party to enter parliament. The effect of this was
that regional parties, which would practically never reach the threshold, could
not enter the national Parliament and any seats they had won would be trans-
ferred to the bigger nationwide parties. Although the Court accepted that
such a high threshold for entering the national parliament was unusual when
compared to the other member states, it did not find a violation precisely
on the basis of the wide margin of appreciation afforded to the respondent
states.57

Beyond the Nature of the Implicated Right

Although the nature of the right is an important consideration in the Court’s
assessment of the scope of the margin of appreciation, it is not enough to deter-
mine its scope in each case. The Court listed the factors that determine the
margin of appreciation in S. and Marper v the United Kingdom. These include
(a) the nature of the Convention right, (b) the importance of the right for the
individual, (c) the nature and the object of the interference, and (d) Euro-
pean consensus.58 It seems that first three criteria are vaguely formulated and
cannot determine the scope of the margin with much clarity,59 and although
(as discussed in Chapter 4) European consensus reasoning does not always

57
Yumak and Sadak v Turkey [GC], no. 10226/03, ECHR 2008.
58
S. and Marper v United Kingdom (above, n. 8).
59
Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (above, n. 7), 106.
112  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

introduce rigour and predictability, it can be used to help determine the first
three factors. For example, in Dickson v the United Kingdom the Court pointed
out that:

Where […] there is no consensus within the Member States of the Council
of Europe, either as to the relative importance of the interest at stake or as to
how best to protect it, the margin will be wider. This is particularly so where
the case raises complex issues and choices of social strategy: the authorities’
direct knowledge of their society and its needs means that they are in principle
better placed than the international judge to appreciate what is in the public
interest.60

The Democratic Process at the National Level

Factors like the democratic legitimacy of the legal provision in question or a
higher level of expertise of national decision makers can also feature in deter-
mination of the scope of margin of appreciation. When a decision is taken by
a legitimate national parliament through rigorous parliamentary procedures
the margin of appreciation should be wider for the respondent state. Saul has
observed that although there is considerable ambiguity as to how parliamen-
tary procedures feature in determination of the scope of the margin of appre-
ciation61 it is possible to suggest that proper parliamentary decision-making
process broadens the scope of the margin of appreciation. For example, in
Odièvre v France the Court stated that broad margin of appreciation should
be given to the national parliament which had to strike a balance between the
interest of a child to know her parents and her mother to remain unknown.62
Conversely, failure to discuss a particular issue in the parliament might sig-
nificantly reduce the margin. The challenge here is whether mere discussion
of a particular issue in the parliament would suffice to crucially broaden the
margin or whether the quality of the discussion and debate would be taken into
account and, if so, how that can be reconciled with the principle of subsidiar-
ity. Moreover, it is unclear whether debating the issue in the parliament would
be enough to execute the judgment after it was delivered.63 This latter chal-
lenge became apparent in the case of Hirst v the United Kingdom (no. 2). Here,
the Court decided that total disenfranchisement of prisoners is a violation of

60
Dickson v the United Kingdom [GC], no. 44362/04, ECHR 2007-V, para. 78.
61
Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of
National Parliaments’ (2015) 15 Human Rights Law Review 745.
62
Odièvre v France [GC], no. 42326/98, ECHR 2003-III, para. 45. See also Evans v the
United Kingdom [GC], no. 6339/05, ECHR 2007-I, para. 86; Murphy v Ireland, no.
44179/98, ECHR 2003-IX, para. 73; Dudgeon v the United Kingdom, 22 October 1981,
Series A no. 45, para. 59.
63
On rationality generally see Popelier and van de Heyning, ‘Subsidiarity Post-Brighton: Pro-
cedural Rationality as Answer?’ (2017) 30 Leiden Journal of International Law 5.
 113
ACCOUNTING FOR DIFFERENCE  

the Convention. Although this question had been considered by Westminster

in the 1960s, the Court was not satisfied with the level of debate that took
place then. It stated:

there is no evidence that Parliament has ever sought to weigh the compet-
ing interests or to assess the proportionality of a blanket ban on the right of
a convicted prisoner to vote. It is true that the question was considered by
the multi-party Speaker’s Conference on Electoral Law in 1968 which unan-
imously recommended that a convicted prisoner should not be entitled to
vote. It is also true that the working party which recommended the amend-
ment to the law to allow unconvicted prisoners to vote recorded that succes-
sive governments had taken the view that convicted prisoners had lost the
moral authority to vote and did not therefore argue for a change in the leg-
islation. It may be said that, by voting the way they did to exempt uncon-
victed prisoners from the restriction on voting, Parliament implicitly affirmed
the need for continued restrictions on the voting rights of convicted prison-
ers. Nonetheless, it cannot be said that there was any substantive debate by
members of the legislature on the continued justification in light of mod-
ern-day penal policy and of current human rights standards for maintaining
such a general restriction on the right of prisoners to vote.64

In this case, it seems questionable that the Court should limit the scope of the
margin of appreciation of Contracting Parties mainly on the basis of the absence
of any recent consideration of the particular issue by the national parliament.
Such a requirement seems very crude and formalistic. In 2011, the Westmin-
ster Parliament discussed the issue and concluded that prisoners should con-
tinue to be disenfranchised, but does the mere discussion of this expand the
margin of appreciation and suggest execution of the Hirst decision? Surely not.
Thus, a parliamentary debate is a necessary but not sufficient precondition for
finding the disenfranchisement of prisoners legal under the Convention. Even
the concurring Judges Tulkens and Zagrebelsky, who thought that there was
no rational basis for blanket disenfranchisement, were critical of the Court’s
assessment of the nature of the parliamentary debates in the UK.65 Of course,
this is a variation on a more fundamental question for the Court about how
far it can go in scrutinising the decisions of democratically legitimate national
bodies. We return to this in earnest in Chapter 8.

The Complexity of the Issue

It might be argued that the limits of the Court’s expertise should affect the
scope of the margin of appreciation. According to this argument, the state
should have a wider margin of appreciation in relation to complex technical

64
Hirst v the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX, para. 79.
65
Ibid., joint Concurring Opinion of Judges Tulkens and Zagrebelsky.
114  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

or scientific issues the full extent of which can only be understood by specially
trained professionals. This is quite in line with the idea of deference on the basis
of expertise often found in domestic law. Having said that, the Court could
still narrow the margin of appreciation in relation to the procedural aspects of
making law and policy relating to such complex technical issues. For example,
in Hatton and Others v the United Kingdom the matter at issue was whether the
decision of the UK authorities to allow night flights at Heathrow airport vio-
lated Article 8 rights of the applicants.66 The Court accepted that the national
authorities had a wide margin of appreciation in deciding on the means of
economic development (which was implicated by decisions as to having open
runways overnight), but it scrutinised the surrounding processes such as con-
sultations during the decision-making process and decided that the authorities
did not violate the Convention.
To sum up, although it is possible to identify some factors that determine
the scope of the margin of appreciation such as the nature of the rights, Euro-
pean consensus and the character of the matter at issue and decision-making
process it seems safe to conclude that the Court often operates in uncertain
conditions. In some novel cases, it is almost impossible to predict what margin
of appreciation will be afforded to the respondent state.

Conclusion
Proportionality and the margin of appreciation are key techniques of ECHR inter-
pretation and, unsurprisingly, have generated a great amount of commentary. This
is so because these techniques can accommodate differences in the application of
human rights across contexts, even though in principle human rights are universal
and, within the Convention system, would be expected to apply in the same way
across the Council of Europe. Even if one agrees that the practice of human rights
adjudication requires some scope for recognising and accommodating difference,
the boundaries of that accommodation are contentious. Although both propor-
tionality and margin of appreciation make a claim to objectively determine those
boundaries, balancing is fundamentally subjective and the scope of the margin of
appreciation sometimes seems to be determined on an ad hoc basis. The lack of
clear and objective criterion to determine the scope of the margin of appreciation
and outcome of a balancing exercise can call into question the foreseeability and
effectiveness of the Convention and, thus, its legitimacy.

Further Reading
Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality
in the Jurisprudence of the ECHR (Intersentia, 2002), Part 1.
Çalı, ‘Balancing Human Rights? Methodological Problems with Weights, Scales and
Proportions’ (2007) 29 Human Rights Quarterly 251.

66
Hatton and Others v the United Kingdom, no. 36022/97, 2 October 2001.
 115
ACCOUNTING FOR DIFFERENCE  

Legg, The Margin of Appreciation in International Human Rights Law (Oxford University
Press, 2012), Chapters 4–6.
Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 International
Journal of Constitutional Law 468.
 CHAPTER 6

The Convention in Times of Insecurity

Insecurity poses challenges for human rights. Not only do situations of insecu-
rity create conditions in which it can be more difficult for people to enjoy and
exercise their rights, but so too can insecurity lead to the introduction by states
of security measures with significant deleterious effects on rights. Thus, secu-
rity and rights have a clear connection to one another, and one that is not often
positive in its effects on rights protection.
Armed conflict (or war) is subject to a particular set of rules, known as inter-
national humanitarian law, and the extent to which international human rights
law – including the European Convention on Human Rights (ECHR or Con-
vention) – continues to operate in situations where these rules are being applied
is a matter of some contention, which we consider in Debate 1. Even if (as we
will find is the case) the Convention does continue to apply in times of armed
conflict, a difficult question arises when that armed conflict takes place outside
of the territory of the Contracting Party. Article 1 provides that the states parties
to the Convention will secure the rights therein protected ‘to everyone within
their jurisdiction’. Thus, the question of whether the Convention has extrater-
ritorial application is a highly controversial one. We address it here as Debate 2.
Insecurity does not only emanate from armed conflict. There can always be
situations of ‘public emergency’ that, as Article 15 puts it, ‘threaten[…] the life
of the nation’. In such cases the Convention permits states to derogate from
rights ‘to the extent strictly required by the exigencies of the situation’, but
questions inevitably arise over whether (a) that should be the case at all, and
(b) the European Court of Human Rights (ECtHR or Court) takes an effective
approach to restraining state action under Article 15 or, instead, is deferential
to claims of both the existence of an emergency and the appropriateness of the
response thereto. In Debate 3 we consider these questions relating to Article 15.
Importantly, insecurity is not only something that takes place or is experi-
enced at a grand/statist scale; insecurity is, instead, an alarmingly common-
place experience. Domestic violence and similar forms of interpersonal violence
are a major public health concern in Europe and worldwide, and in Debate 4
we focus on the example of domestic violence to consider the extent to which
the Convention protects people from everyday, interpersonal experiences of
insecurity.
117
  
118  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Debate 1
Does the ECHR apply in war?
We have already noted that the state of war has a particular applicable legal
system: international humanitarian law. However, this does not mean that
international human rights law ceases to operate during an armed conflict.1
In the context of the Council of Europe, this means that the ECHR contin-
ues to apply to its Contracting Parties in war but that simple statement, gen-
erally accepted within international law and politics, should not be taken to
mean that the application of both international humanitarian and international
human rights law simultaneously is unproblematic. Indeed, it is anything but.
This represents one of the key debates not only in the context of the ECHR
but also in the context of international law. Questions arise as to whether, and
if so when, one body of law stops applying in any given situation (interna-
tional human rights law) and another begins exclusively to apply (international
humanitarian law), or whether the two bodies of law should be read together in
a more harmonious manner to apply concurrently throughout an armed con-
flict.2 The potential for the two bodies of law to diverge, converge or be read
together is well illustrated by the example of the right to be free from arbitrary
detention.
Arbitrary detention is prohibited by human rights law (and Article 5 of the
ECHR) and remains prohibited in war,3 but in a situation of armed conflict
how we determine whether a detention is arbitrary or not will be defined by the
rules of international humanitarian law which permits, for example, the deten-
tion of prisoners of war without charge or trial until the cessation of hostili-
ties, which may in real terms mean years of detention. These rules may permit
detention in situations, and for durations, that international human rights law
would not.4 A key mechanism to manage these potential inconsistencies is to
say that, in the context of armed conflict, compliance with the rules of inter-
national humanitarian law will often be sufficient to ensure compliance with
international human rights law.
What, then, could possibly be controversial about saying that international
human rights law is applicable in times of armed conflict? That a state could

1
See, for example, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory (Advisory Opinion) 2004, available at http://www.icj-cij.org/en/case/131 and
Armed Activities on the Territory of Congo (Democratic Republic of Congo v Uganda) [2005]
ICJ Rep 168.
2
Orakhelashvili, ‘The Interaction between Human Rights and Humanitarian Law: Fragmenta-
tion, Conflict, Parallelism, or Convergence’ (2008) 19 European Journal of International Law
161.
3
See, for example, Rule 99, ICRC Rules of Customary International Humanitarian Law;
Article 42, Geneva Convention IV (1949); Rule 147, Geneva Convention IV (1940); Article
7(1)(e) Rome Statute of the International Criminal Court 1998.
4
On the right to be free from arbitrary deprivation of liberty generally see, e.g., de Londras,
Detention in the War on Terror: Can Human Rights Fight Back? (Cambridge University Press,
2011), Chapter 2.
 119
The Convention in Times of Insecurity  

be held accountable for its actions in violation of human rights obligations in a

time of war? In essence, it is the possibility that civilians within an armed con-
flict situation might engage with human rights law enforcement mechanisms in
order to try to secure a remedy for rights violations during war that causes this
controversy; in the context of the ECHR, that is to make a complaint to the
ECtHR in respect of alleged rights violations in armed conflict.
As we will see below, the Court’s willingness to adjudicate alleged human
rights violations in times of armed conflict that are said to come within the
jurisdiction of Contracting Parties is controversial indeed. However, the
material point at this stage is that the Court has not shied away from asserting
the continuing application of the Convention in times of war. This is consist-
ent with the approach of other international courts, including the Interna-
tional Court of Justice,5 and just as those courts have done, the ECtHR
has shown a willingness to reconcile states’ obligations under human rights
law with their obligations under international humanitarian law and the per-
ceived realities and necessities of armed conflict. So, for example, in Jaloud v
the Netherlands (which we explore in more detail below) the Court accepted
that a situation of armed conflict might be such that a state’s duty to inves-
tigate the use of lethal force can be discharged with a less rigorous investiga-
tion and somewhat less careful evidence gathering etc. than would ordinarily
be expected of it:

The Court is prepared to make reasonable allowances for the relatively difficult
conditions under which the Netherlands military and investigators had to work.
In particular, it must be recognised that they were engaged in a foreign country
which had yet to be rebuilt in the aftermath of hostilities, whose language and
culture were alien to them, and whose population […] clearly included armed
hostile elements.6

The clear thrust of this is that the Court applies a looser test of proportion-
ality in scenarios like this, allowing a broader decision-making margin to the
respondent state. Importantly, however, Jaloud is representative of an approach
that suggests that the Convention obligations continue to apply with as much
substantive force in a military context as they do otherwise. However, it is not
at all clear that this should be the case especially in situations of international
armed conflict and occupation where international humanitarian law arguably
permits more rights-restrictive activity than does the ECHR.
The question that arises here is whether a state’s obligations under inter-
national humanitarian law ought to lead to an adjustment of how the Court
assesses compliance with Convention rights; should Convention rights, in a
sense, be ‘refracted’ through international humanitarian law (IHL)? Certainly,
for some scholars, the Court ought to take a firm line; as Silvia Borelli has
written,

5
See further the jurisprudence cited in Orakhelashvili, ‘The Interaction’ (above, n. 2).
6
Jaloud v the Netherlands [GC], no. 47708/08, ECHR 2014, para. 226.
120  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

where a State has failed to enter a derogation from its relevant ECHR obliga-
tions in relation to military action abroad, the Court should adopt a principled
stance and assess the legality of its actions on the basis of the Convention alone,
without seeking to qualify or interpret the State’s obligations by reference to
IHL standards.7

However, Hassan v the United Kingdom8 suggests that the Court itself might
not be quite so strict on this matter.
Hassan related to detention. As outlined above this is an area in which, on the
face of it at least, there is significant divergence between the ECHR and interna-
tional humanitarian law. Hassan had been arrested (by UK troops), detained (at a
US-run facility) and interrogated (by UK intelligence agents) in Iraq, and claimed
a violation of Article 5 of the ECHR. Article 5(1) lists a clearly constrained set of
circumstances in which detention is permitted; in contrast, international human-
itarian law allows detention on much wider bases. The UK argued that, as this
was an armed conflict, compliance with IHL ought to be said to mean compli-
ance with Article 5, notwithstanding the fact that this is not a basis for detention
under Article 5 and that they had not derogated from the Article 5 rights. This
was based on the argument that international humanitarian law was the lex spe-
cialis that ‘might operate to modify or even displace’9 a Convention provision.
Somewhat unexpectedly, the Court largely acceded to the UK’s claims. It
found that there was a clear state practice not to require derogation from Article
5 in order to allow for detention compliant with international humanitarian law
in armed conflict, that it was obliged to understand and apply the Conven-
tion in a manner congruent with general public international law (citing the
Vienna Convention on the Law of Treaties), and it was not therefore precluded
from taking international humanitarian law into account when interpreting and
applying Article 5. The Court claimed that ‘even in situations of international
armed conflict, the safeguards under the Convention continue to apply, albeit
interpreted against the background of the provisions of international human-
itarian law’, and effectively ‘read in’ a provision allowing detention compliant
with international humanitarian law to Article 5(1). In so doing, it rejected the
UK’s argument that lex specialis displaced the Convention, although it came to a
remarkably similar conclusion to the one sought by the UK through that claim.10
Hassan is a radical step by the Court; it seems not only to take account
of context and the challenges of armed conflict, but to go further than this
and effectively equate legality under international law per se with Convention-
compatibility. Whilst some have praised the Court for asserting its jurisdiction to

7
Borelli, ‘Jaloud v. Netherlands and Hassan v. United Kingdom: Time for a Principles
Approach in the Application of the ECHR to Military Action Abroad’ (2015) 16 Questions of
International Law: Zoom In 25, 27.
8
Hassan v the United Kingdom [GC], no. 29750/09, ECHR 2014.
9
Ibid., para. 88.
10
On the importance of rejecting the lex specialis claim, see Hill-Cawthorne, ‘The Grand
Chamber Judgment in Hassan v. UK’, EJIL: Talk, available at https://www.ejiltalk.org/
the-grand-chamber-judgment-in-hassan-v-uk/.
 121
The Convention in Times of Insecurity  

hear the case in the first place,11 there are powerful critiques of the decision, not
least in the dissenting opinions which argue that states such as the UK not only
failed to derogate from Article 5 and yet tried to rely on a lower legal standard,
but also consistently resist the extraterritorial application of the Convention.
In other words, the implicit critique is that in Hassan the Court concedes too
much to states; that, as Borelli argues, the way to avoid Article 5 obligations
here is to derogate,12 not to attempt to undermine the Convention protection
per se through argumentation of this kind. Whilst for some the Court’s ‘sym-
biotic’ approach in Hassan, reading international humanitarian law and inter-
national human rights law together, is commendable,13 for others it is human
rights law that loses out here, providing to states a way to release themselves
from rights obligations in practice, if not in law, when acting militarily abroad.
However, even Hassan has not been enough to quell concerns in the United
Kingdom, in particular, about the Court’s approach to applying the Conven-
tion to military operations abroad. As considered further in respect of Debate
2 below, there is a view among some in the UK that the Convention ought
not to be applicable to such conflicts, which should instead be governed exclu-
sively by international humanitarian law. Partly emanating from this, former
UK Defence Secretary Michael Fallon announced that he would apply a ‘pre-
sumption to derogate’ in all future military conflicts,14 although, as we will
discuss in Debate 3, derogation under Article 15 is subject to a number of rules
that would have to be complied with in any particular conflict situation.
Although the Court has reserved some space for its involvement in situations
of an armed conflict, and therefore rejected the argument of the respondent
state in relation to its jurisdiction, it has strategically accepted the UK’s argu-
ment as to the substance of the violation. This strategic approach to human
rights allows the Court to expand its substantive understanding of human
rights without changing its approach to its jurisdiction.

Debate 2
Does the ECHR have extraterritorial effect?
A particular challenge of human rights protection arises in respect of extrater-
ritorial military operations, including those undertaken under a mandate from
the UN Security Council. This raises an interesting and controversial question

11
Ibid.
12
See Borelli, ‘Jaloud v. Netherlands and Hassan v. United Kingdom’ (above, n. 7).
13
De Koker, ‘Hassan v. United Kingdom: The Interaction of Human Rights Law and Inter-
national Humanitarian Law with Regard to the Deprivation of Liberty in Armed Conflicts’
(2015) 31 Utrecht Journal of International and European Law 90.
14
Fallon, Speech to the Conservative Party Conference, Birmingham, 4 October 2016. For
analysis see Dzehtsiarou, ‘Different Human Rights at Home and Abroad: Immunity for
British Soldier during Overseas Operations’, JustSecurity, 5 October 2016, available at
https://www.justsecurity.org/33377/human-rights-home-abroad-immunity-british-
soldier-overseas-operations/.
122  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

about the Convention: does it apply to the state acting overseas? The ques-
tion is of crucial significance; if the Convention does apply with extraterritorial
effect, then states acting in times of armed conflict outside of their own bound-
aries and even outside of Europe may not only be required as a matter of law
to comply with the Convention, but might also be held accountable before the
Court for their failures to do so.
It is a general principle of treaty interpretation that treaties ordinarily do
not have extraterritorial effect.15 This is certainly suggested by the text of the
Convention, which requires the Contracting Parties to give effect to the rights
protected therein ‘to everyone within their jurisdiction’.16 Whilst being within
the jurisdiction of the state is not necessarily the same as being within the terri-
torial boundaries of the state, there is ordinarily a connection between the two.
Thus, it can be assumed that the wording of Article 1 was intended to limit
the obligations to the territory of the state in the ordinary course of events.17
However, the Court’s jurisprudence shows that the reach of the Convention
is not necessarily territorially bounded; instead, it will apply extraterritorially in
exceptional circumstances.
What those exceptional circumstances are is not entirely settled. For some
time it had been thought that Loizidou v Turkey provided the answer.18 In
1974, along with hundreds of thousands of other Greek-Cypriots, Titina
Loizidou had been displaced from her home in Northern Cyprus following the
Turkish invasion of the island. She tried repeatedly to return but was always
prevented from doing so by Turkish authorities guarding the occupied north
of the island. She lodged an application against Turkey invoking violation of
Article 1 Protocol 1, which protects right to property. Turkey claimed that
Loizidou had legally lost the right to her property under the Constitution
of the Turkish Republic of Northern Cyprus (TRNC). Turkey maintained
that the TRNC was a state that was not a Contracting Party to the ECHR
and therefore the Court had no jurisdiction. However, the TRNC was (and
remains) a self-declared state recognised only by Turkey and, citing the special
nature of the ECHR as a treaty for the protection of rights and a constitutional
instrument of European Public Order, the Court held that it should take this
into account in determining whether Turkey had responsibility for protection
of Convention rights in the territory. Although the Court noted that Article 1
of the Convention meant that it was primarily limited by territory, obligations
under the Convention could arise where a state exercised effective control of
an area outside of its national territory as a result of military action. This was

15
Article 29, Vienna Convention on the Law of Treaties.
16
Article 1, ECHR.
17
Bates, The Evolution of the European Convention on Human Rights (Oxford University Press,
2010), 111.
18
Loizidou v Turkey (merits), 18 December 1996, Reports of Judgments and Decisions
1996-VI.
 123
The Convention in Times of Insecurity  

the case here: not only had the Turkish troops’ invasion led to the establish-
ment of the TRNC and the loss of Loizidou’s property, but so too had Turkish
troops prevented her from returning to her property on numerous occasions.
For the Court, the large number of Turkish troops undertaking active duties
in northern Cyprus was such that the state exercised effective overall control
and was, therefore, liable for violations of the Convention that took place
there. Loizidou, thus, stood for the proposition that effective control of an area
brought Convention obligations with it. Under Loizidou it seemed irrelevant
where the territory over which the state had effective control was: it could be
within or outside of the Council of Europe. The controversial case of Banković
seemed to settle this.19
Banković related to the NATO-led bombing of Belgrade by a number of
Contracting Parties during the Yugoslav war. In the course of the air strikes,
a television station was targeted and a number of civilians were killed. Among
other things, the applicants in this case claimed that the Contracting Parties
in question had violated the Convention by failing to plan the operations in a
manner that would minimise the risk of civilian casualities, and had failed to
comply with the duty to investigate deaths that arises under Article 2. However,
what was then Yugoslavia was not a Contracting Party to the Convention, and
so the first and most important question was whether or not the Convention
could be said to apply at all.
In answering this, the Court held that the Convention was primarily ter-
ritorially limited and would apply extraterritorially only in exceptional situa-
tions. Where the location of the alleged violation was within the territories of
any Contracting Party to the Convention this was said to be within the legal
space – or espace juridique – of the ECHR, so that the Convention would
apply there.20 This was justified by the fact that the rights enjoyed by persons
within the jurisdiction of a Contracting Party should not be reduced to naught
because a different Contracting Party – already subject to those rights stand-
ards in the ordinary course of events – was operating upon them in that space.21
The notion of an espace juridique was entirely novel, developed by the Court to
try to conceptualise ways of ensuring that those who already enjoyed Conven-
tion rights would continue to enjoy them, even in the (rare) event of another
European state ‘taking over’ some form of control there. However, the delimi-
tation of that space also, of course, identified geographical space outside of the
espace juridique: space in which the Convention did not ordinarily apply, and in
relation to which something extraordinary would need to happen to alter that.

19
Banković and Others v Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII.
20
Ibid., para. 80.
21
Ibid. In this the Court drew also on its expressed desire to avoid ‘a regrettable vacuum in the
system of human-rights protection’ in Cyprus v Turkey [GC], no. 25781/94, ECHR 2001-IV,
para. 78.
124  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

What was then Yugoslavia fell into that space outside of the espace juridique
and so the Court was required to elucidate the situations in which the Conven-
tion might be said to apply there. According to the Court:

In sum, the case-law of the Court demonstrates that its recognition of the exer-
cise of extra-territorial jurisdiction by a Contracting State is exceptional: it has
done so when the respondent State, through the effective control of the rele-
vant territory and its inhabitants abroad as a consequence of military occupation
or through the consent, invitation or acquiescence of the Government of that
territory, exercises all or some of the public powers normally to be exercised by
that Government.22

In this case there was no effective control because there had been no ‘military
occupation’, but rather an air strike. This, combined with the fact that there
was no danger of a vacuum of Convention-rights protection arising, meant that
the Convention did not apply in this case.
Banković was heavily criticised in the literature23 as it seemed for some to
expose a kind of illogic at the heart of the Convention, namely that a state
would not be bound by international human rights standards in a particu-
lar case simply because that state happened to be acting ‘abroad’. On the one
hand, that proposition seems to undermine the basic tenet that human rights
are universal and enjoyed by all on the basis of humanity alone, but on the
other hand it arguably refined that general normative principle into a workable
set of legal rules about the applicability of a certain set of human rights stand-
ards, and their enforceability through the ECtHR on a particular territory. The
real difficulty, of course, is with the apparent injustice of the outcome of such a
position; the seeming lack of accountability for actions that are often heinous,
including death and torture; and perhaps the (unpalatable) implication that
whilst these violations were lamentable when they happened outside of the
European public order,24 these scenarios were not for the Strasbourg Court to
remedy.25 Were this to be the case it would, perhaps, not be entirely surprising.
We have already noted that the text of the Convention appears to limit its
applicability by reference to the concept of ‘jurisdiction’. This is a concept
that has real content in international law; it is intended, among other things,

22
Banković and Others v Belgium and Others (dec.) (above, n. 19), para. 71.
23
See, for example, Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23 European
Journal of International Law 121, O’Boyle, ‘The European Convention on Human Rights
and Extraterritorial Jurisdiction: Comment on “Life After Bankovic”’ in Coomans and Kam-
minga (eds), Extraterritorial Application of Human Rights Treaties (Intersentia, 2004) 125,
and Roxstrom, Gibney and Einarsen, ‘The NATO Bombing Case (Bankovic et al. v Belgium et
al.) and the Limits of Western Human Rights Protection’ (2005) Boston University Intl Law
Journal 23, 55.
24
See the reference thereto in Banković and Others v Belgium and Others (dec.) (above, n. 19),
para. 80.
25
On this see further Milanovic, Extraterritorial Application of Human Rights Treaties: Law,
Principles, and Policy (Oxford University Press, 2011), 85–86.
 125
The Convention in Times of Insecurity  

to clearly delimit where the authority of one legal system and its enforcement
mechanisms ends and that of another begins.26 Taken as a term of general
international law, ‘jurisdiction’ here would mean in many ways just what the
Court in Banković said it means: that the Convention applies outside the terri-
tory of the Contracting Party only where the state in question has either spatial
or personal jurisdiction. Spatial jurisdiction would arise where the ‘space’ in
which the actions complained of took place was under the effective control of
the Contracting Party. Personal jurisdiction would arise where, at the time of
the actions complained of, the victim was under the effective control of the
Contracting Party. In Banković neither of these was the case; there was only an
aerial campaign and the physical space in question was not under the effective
control of the respondent states; neither were the victims under their effec-
tive control. Thus, the outcome from Banković arguably reflects these specific
exceptions to the general rule that the Convention would not have extraterri-
torial effect, even whilst the articulation and application of a concept of espace
juridique for the Convention might remain problematic but not particularly
material to the outcome in the case per se. As a result, and notwithstanding
the criticism of the outcome from the case, the approach taken in Banković
might have suggested that the Court would develop and apply a relatively strict
approach to the proposition that the Convention would only apply extraterri-
torially where either spatial or personal jurisdiction could be established. This
is not only for the reasons of jurisprudential consistency but also (a) in defer-
ence to the legal systems of states where the actions complained of may have
taken place, and the other parts of general international law that would apply
in respect of armed conflict there, and (b) as an expression of self-restraint on
the part of the ECtHR by extending its adjudicatory power beyond the Con-
tracting Party only where that is clearly consistent with international legal con-
ceptions of jurisdiction.
However, the reality is that the Court has taken what seems to be a much
more constitutional approach to the question of extraterritoriality than the
strict rules of general international law would seem to require. By this we mean
that the Court appears to proceed on the implicit basis that law follows power,
so that the Contracting Party should be accountable under the Convention
for actions that appear to violate human rights, even where those actions take
place abroad and without appearing to pay particular attention to whether the
strict rules of personal and spatial jurisdiction are adhered to. Although this
approach might be praised for an increased level of protection, at the same time
it injects some uncertainty and unpredictability into the law under the Con-
vention. In turn such a state of affairs gives some ground to the Contracting
Parties to the Convention to claim illegitimacy of the Court’s actions in the
area of extraterritorial application of the Convention.

For a comprehensive overview see Ryngaert, Jurisdiction in International Law (Oxford

26

University Press, 2015).

126  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

This loose approach to territorial jurisdiction is evident in Al-Skeini and

Others v the United Kingdom27 which concerned five Iraqis who had been killed
by UK troops in Basra, in northern Iraq, one of whom had died in a UK
detention facility. Following Banković the domestic court had held that the UK
could not be held accountable under the Human Rights Act 1998 (incorpo-
rating the ECHR) in respect of those who died and were not detained at the
time by the UK because Iraq was outside of the espace juridique of the Conven-
tion and there was neither spatial nor personal jurisdiction in relation to them;
in the judgment of Lord Bingham, Banković constituted a ‘clear – and clearly
restrictive – approach to Article 1 jurisdiction’ that justified this way of address-
ing the question in the domestic court.28
In Strasbourg, the Court appeared to abandon the concept of espace jurid-
ique, at least as a ‘hard limit’ to the application of the Convention outside of
the geographical space of the Convention’s Contracting Parties. In a judgment
that mentioned espace juridique only five times, two of which referred to its
usage in the domestic Court, the Strasbourg Court held:

The Convention is a constitutional instrument of European public order […]

It does not govern the actions of States not Parties to it, nor does it purport to
be a means of requiring the Contracting States to impose Convention standards
on other States.

The Court has emphasised that, where the territory of one Convention State is
occupied by the armed forces of another, the occupying State should in prin-
ciple be held accountable under the Convention for breaches of human rights
within the occupied territory, because to hold otherwise would be to deprive
the population of that territory of the rights and freedoms hitherto enjoyed and
would result in a ‘vacuum’ of protection within the ‘Convention legal space’
[…] However, the importance of establishing the occupying State’s jurisdic-
tion in such cases does not imply, a contrario, that jurisdiction under Article 1
of the Convention can never exist outside the territory covered by the Council
of Europe Member States.29

With these two paragraphs, then, the Court effectively put an end to the espace
juridique notion from Banković. It returned, in effect, to the position that
whilst jurisdiction is primarily territorial under Article 1, the Convention will
apply outside of the territory of a Contracting Party where it has effective
control over a person or effective control over a territory whether or not that
territory is within the so-called espace juridique of the Convention. According
to the Court, the UK did have effective control over the relevant area of Iraq
at the time that the five persons in question were killed:

27
Al-Skeini and Others v the United Kingdom [GC], no. 55721/07, ECHR 2011.
28
Secretary of State for Defence v Al-Skeini & Others [2007] UKHL 26, para. 131.
29
Al-Skeini and Others v United Kingdom (above, n. 27), paras 141–142. See also Al-Jedda v
the United Kingdom [GC], no. 27021/08, ECHR 2011.
 127
The Convention in Times of Insecurity  

[F]ollowing the removal from power of the Ba’ath regime and until the acces-
sion of the Interim Government, the United Kingdom (together with the
United States) assumed in Iraq the exercise of some of the public powers nor-
mally to be exercised by a sovereign government. In particular, the United
Kingdom assumed authority and responsibility for the maintenance of secu-
rity in South East Iraq. In these exceptional circumstances, the Court considers
that the United Kingdom, through its soldiers engaged in security operations in
Basrah during the period in question, exercised authority and control over indi-
viduals killed in the course of such security operations, so as to establish a juris-
dictional link between the deceased and the United Kingdom for the purposes
of Article 1 of the Convention.30

After Al-Skeini, however, a question remained as to how effective control over

either a person or an area would be established: how much control was suf-
ficient to meet the apparent threshold requirement of ‘effectiveness’ for the
purpose of applying the Convention, especially bearing in mind that extraterri-
torial application of the Convention is exceptional and that it remains primarily
territorial in its application? This is particularly difficult to assess in situations
where someone is not detained by the military forces of the state in question,
or where the geographical area in which the alleged violation took place is not
under the state’s military control, but rather where there is what may seem
like a more fleeting engagement between the state forces and the victim of the
alleged violation. Just such a set of circumstances arose for consideration in the
case of Jaloud v the Netherlands.
This case concerned a checkpoint in South East Iraq at which Dutch mil-
itary officers were stationed. A car that had been ordered to stop refused to
do so, and a Dutch lieutenant opened fire leading to the death of the appli-
cant’s son. The Dutch Royal Military Constabulary investigated whether any
crime had been committed. It collected evidence, interviewed witnesses, and
concluded that the use of force had been justified and no prosecution should
follow. The applicant in Jaloud claimed that the investigation in question was
not sufficient to satisfy the positive obligations relative to the right to life under
Article 2 of the ECHR, but first had to establish that the Convention applied
to the incident at all.
The Dutch troops in question were serving as part of a multi-national force
and, at the time, were under UK command. However, the Court found that
this alone was not sufficient to say that the acts in question could not be attrib-
uted to the Netherlands:

The fact of executing a decision or an order given by an authority of a foreign

State is not in itself sufficient to relieve a Contracting State of the obligations
which it has taken upon itself under the Convention. The respondent party is
therefore not divested of its ‘jurisdiction’, within the meaning of the Article 1
of the Convention, solely by dint of having accepted the operational control

30
Ibid., para. 149.
128  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

of […] a United Kingdom officer […] Although Netherlands troops were

stationed in an area in south-eastern Iraq where SFIR forces were under the
command of an officer from the United Kingdom, the Netherlands assumed
responsibility for providing security in that area, to the exclusion of other par-
ticipating States, and retained full command over its contingent there.31

In particular, the Court considered that the checkpoint in question was under
Dutch control and found that this was sufficient to establish personal jurisdic-
tion (i.e. effective control over the person) for the Netherlands over people
passing through the checkpoint.

The Court […] notes that Mr Azhar Sabah Jaloud met his death when a vehicle
in which he was a passenger was fired upon while passing through a checkpoint
manned by personnel under the command and direct supervision of a Nether-
lands Royal Army officer. The checkpoint had been set up in the execution of
SFIR’s mission, under United Nations Security Council Resolution 1483 […]
to restore conditions of stability and security conducive to the creation of an
effective administration in the country. The Court is satisfied that the respond-
ent Party exercised its ‘jurisdiction’ within the limits of its SFIR mission and for
the purpose of asserting authority and control over persons passing through the
checkpoint. That being the case, the Court finds that the death of Mr Azhar
Sabah Jaloud occurred within the ‘jurisdiction’ of the Netherlands.32

The Court went on to find that the duty to investigate under Article 2 had not
been satisfied and, thus, that there was a violation of the Convention. Regard-
less of what might be considered to be the justice of the outcome of the case,
Jaloud does raise a serious question about the rigour with which the Court is
applying the concept of jurisdiction here. It is difficult to reconcile command
control over a checkpoint with ‘effective control’ over a person, particularly in
the light of a case like Banković where aerial bombardment of Belgrade did not
establish personal jurisdiction over the persons then in the city. Whilst there are
some important factual distinctions (e.g. the Dutch troops at the checkpoint
had the power to order people to stop), these distinctions do not appear to be
sufficiently material to properly distinguish the two cases from one another for
the purposes of establishing jurisdiction. Instead, some are drawn to the con-
clusion that the Court here was essentially equating attribution with jurisdic-
tion, i.e. proceeding on the basis that where an action could be attributed to
the state, the state should be answerable for it under the Convention.33

31
Jaloud v the Netherlands (above, n. 6), para. 147.
32
Ibid., para. 152.
33
For an argument to this effect, see Rooney, ‘The Relationship between Jurisdiction and
Attribution after Jaloud v Netherlands’ (2015) 62 Netherlands International Law Review 407.
This is certainly not accepted by all; see, for example, Milanovic, ‘Jurisdiction, attribution and
responsibility in Jaloud’ EJIL: Talk, 11 December 2014, available at https://www.ejiltalk.org/
jurisdiction-attribution-and-responsibility-in-jaloud/.
 129
The Convention in Times of Insecurity  

Should Jaloud reveal that the Court is, more or less, applying a proxy-
attribution approach to the Convention’s extraterritorial application one might
argue that, leaving to one side the doctrinal difficulties with calling something
‘personal jurisdiction’ when it does not really comply with the requirements
thereof, this results in a more just outcome. In other words, that states should
be answerable for their compliance with human rights wherever they apply their
power to individuals in a manner that implicates their rights. This is, essentially,
a constitutional argument: that power should not be exercisable without atten-
dant accountability mechanisms. However, even such an approach does not
necessarily answer the key question here: why should the Convention be the
law that is applied, and the Strasbourg Court the institution that should adju-
dicate on it?
There are at least two arguments against the expansion of extraterritorial-
ity in this way. The first is pragmatic, and it is that by appearing to develop the
extraterritorial application in an idiosyncratic and seemingly doctrinally inco-
herent way the Court adds further fuel to the fire in terms of allegations of
illegitimacy. The second is that the Court may not be showing appropriate
deference to international humanitarian law and might thus contribute to the
fragmentation of international law.
As to the first of these – the claim of illegitimacy – we have already seen
that arguments of illegitimate expansionism and evolution of the Conven-
tion through judicial innovation and activism are increasingly being made
by Contracting Parties.34 In relation to the specific matter of extraterritorial
application of the Convention in situations of military activity, the UK is a
particularly harsh critic of the Court. As already noted, the UK government
has proposed ‘presumptive derogation’ in all cases of future military opera-
tions abroad,35 and Prime Minister Theresa May committed to ensuring that
she would ‘never again – in any future conflict – let those activist, left-wing
human rights lawyers harangue and harass the bravest of the brave – the men
and women of Britain’s Armed Forces’.36 The implication from all of this, of
course, is that being subject to the Convention during armed conflict inter-
feres with military activity, and calls into question the integrity of service
members through, for example, requiring investigations into ‘historic’ abuse
allegations.37
Richard Ekins is a key critic of the Court’s approach to extraterritoriality
since Banković, and his arguments are indicative of the objections. As part of

34
See analysis in Chapter 2.
35
See above, n. 14.
36
Prime Minister Theresa May, Speech to the Conservative Party Conference, Birmingham, 5
October 2016.
37
See, for example, the Iraq Historic Allegations Team, available at https://www.gov.uk/
government/groups/iraq-historic-allegations-team-ihat#mission; it notes that its ‘work is a
vital constituent part of the UK’s obligation to conduct investigations into these allegations
that are compliant with the European Court of Human Rights (ECHR) and the requirements
of the International Criminal Court’.
130  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

a broader criticism of ‘judicial imperialism’,38 Ekins, with others, character-

ises the Convention as a ‘bridgehead […] for the judiciary’s incursion into
military terrain’,39 and argues that this is rightly to be considered part of the
Executive’s role.40 According to this analysis, Banković was clear authority
for the fact that the Convention did not apply in Iraq at the time that the
UK’s military operations there commenced, but that in Al-Skeini the Court
‘asserted a new interpretation that turned not primarily on territory but on
vague ideas about control, public power, and the use of force’.41 For Ekins,
this is unquestionably undesirable, and the solution is not only to derogate
but to change the Human Rights Act 1998 to limit its scope, perhaps even
retrospectively.42
Such objections to the Court’s developing extraterritoriality jurisprudence
are objections to what many consider to be the ‘creep’ of the Court into
military matters and overseas operations and to the very idea that human
rights law has any role in regulating military activity of any description. As
we already discussed in Debate 1, there is a school of thought that main-
tains that international humanitarian law is the appropriate corpus of law to
apply to situations of armed conflict, and that it incorporates human rights
standards in a manner that is appropriate to the specific stresses and strains
of the conflict context. Whatever the source and thrust of these objections,
they have fallen on fertile ground in parts of the UK establishment. We have
already seen the suggestion of presumptively derogating from the Conven-
tion,43 and tentative plans for a ‘British Bill of Rights’ to replace the Human
Rights Act include a plan to ensure that the Bill of Rights is explicitly not
subject to extraterritorial effect.44 Whilst this would not limit the applica-
tion of the ECHR by the Strasbourg Court, of course, it would create sub-
stantial hurdles to domestic litigation; the fact that it would be inconsistent
with the Convention and may result in an adverse finding in Strasbourg is

38
Ekins is a leading member of the Judicial Power Project, which claims that its ‘focus … is
on the proper scope of the judicial power within the constitution’ and that ‘Judicial overreach
increasingly threatens the rule of law and effective, democratic government’. Judicial Power
Project, available at https://judicialpowerproject.org.uk/about/.
39
Ekins, Morgan and Tugendhat, Clearing the Fog of War: Saving our Armed Forces from
Defeat by Judicial Diktat (Policy Exchange, 2015), 9.
40
Ibid.; see also Ekins, ‘How to Address the Reach of European Human Rights Law’, Written
Evidence to the Defence Sub-Committee, 17 October 2016, available at http://data.parliament.
uk/writtenevidence/committeeevidence.svc/evidencedocument/defence-subcommittee/
mod-support-for-former-and-serving-personnel-subject-to-judicial-processes/written/41201.
pdf.
41
Ibid., 5.
42
Ibid., 15.
43
See the text accompanying above, n. 14.
44
Amos, ‘British Bill of Rights Leak: A Comment on What We Know so Far’ The Human
Rights Essay, available at http://www.humanrightsessay.org.uk/Merris-Amos-british-bill-of-
rights.html.
 131
The Convention in Times of Insecurity  

acknowledged but, according to Ekins, Parliament could simply refuse to

change the law even in the face of such a finding:

Parliament has not confirmed to the ECtHR’s rulings in relation to prisoner

voting. In principle, it would certainly be open to a sovereign Parliament to take
a similar position again.

The inevitable criticism that would be made […] is that Parliament and the
Government were placing the UK in breach of its international obligations. […]
The principled response would be to say that the UK is not willing to conform
to rulings of the ECtHR that grossly misinterpret the ECHR and abandon the
terms agreed by the member states.45

A further, more doctrinally interesting, objection might be levied to the devel-

opment of the Court’s jurisprudence on extraterritorial application of the Con-
vention: that it constitutes the Court encroaching on the territory of general
international law. The Convention is not, and was not, intended to create a
system of judicially enforceable human rights for the world at large; rather,
it was intended to protect rights within Europe and as against the states of
Europe. Its mission is, in other words, essentially regional.46 This does not
mean that the rest of the world is without rights, of course; indeed, interna-
tional human rights law applies, as – in situations of armed conflict – does inter-
national humanitarian law. Bearing this in mind, then, one could indeed argue
that by developing extraterritoriality in the way it has done, and seemingly at
least at times inconsistently with international legal principles of jurisdiction,
the Court is extending itself into areas that are more properly regulated by
other parts of international law. The fact that those parts of international law
might not be as amenable to judicial adjudication and enforcement as is the
Convention does not necessarily justify this encroachment; the Court has a
specific jurisdiction and, just as national legal systems are expected to demon-
strate respect for the legal systems of other countries and not apply them-
selves except in very limited situations to what happens in another state, so
the ECtHR should show more restraint and respect to the other, more clearly
applicable, bodies of public international law.
This argument is compellingly logical but of course it suffers from a serious
flaw: that those other bodies of public international law may be incapable of
holding a state to account for its actions in that other country and that indi-
viduals who have suffered grave violations of their rights might not have any
forum or mechanism by which to attempt to make that state legally responsi-
ble. This is the justice-oriented attraction (doing the right thing) of the appar-
ently constitutional approach to extraterritoriality that we see developed in
the Court’s case law from Banković to Al-Skeini and, particularly, Jaloud.

45
Ekins, ‘How to Address the Reach of European Human Rights Law’ (above, n. 40), 21–22.
46
Banković and Others v Belgium and Others (dec.) (above, n. 19).
132  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Whether the utilitarian or outcome-oriented concern of justice, accountability

or responsibility that this represents is sufficient to justify the Court’s departure
from settled principles of jurisdiction in international law is, however, a ques-
tion on which severe disagreement continues to arise.

Debate 3
Should rights be suspended in times of emergency?
Not all situations of violence and insecurity meet the threshold of ‘war’ or
‘armed conflict’. To this end, international human rights law often recognises
the possibility of a state of emergency existing that would justify the ‘relaxa-
tion’ of human rights standards so that the state may do things in furtherance
of ‘security’ in those situations that we would not ordinarily permit it to do.47
The ECHR does this in Article 15:

1. In time of war or other public emergency threatening the life of the nation any
High Contracting Party may take measures derogating from its obligations under
this Convention to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other obligations under
international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful
acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this
provision.
3. Any High Contracting Party availing itself of this right of derogation shall
keep the Secretary-General of the Council of Europe fully informed of the
measures which it has taken and the reasons therefor. It shall also inform
the Secretary-General of the Council of Europe when such measures have
ceased to operate and the provisions of the Convention are again being fully
executed.

Allowing states to derogate in times of emergency is part of the Faustian pact

that underpins international human rights law: states accept international
law’s ability to regulate previously sovereign matters (namely the relationship
between the state and those within its domestic jurisdiction), whilst the inter-
national system recognises that there are times when international supervision
is relaxed (such as emergencies). However, the idea that security requires or
justifies a reduction in rights relates to a controversy that far pre-dates inter-
national human rights law.48 There are three primary areas of concern in this
relation: whether a reduction in rights results in an enhancement of security,

47
Article 4, International Covenant on Civil and Political Rights; Article 27(1), American
Convention on Human Rights.
48
For a useful overview of the broader political philosophical debates see, for example, Teson,
‘Liberal Security’ in Wilson (ed.), Human Rights in the ‘War in Terror’ (Cambridge University
Press, 2005).
 133
The Convention in Times of Insecurity  

whether security measures introduced disproportionately and discriminatorily

impact on some parts of the community more than others, and whether deci-
sions about necessity and appropriateness of rights-restricting security meas-
ures should be subject to scrutiny by (national and international) courts.
At the heart of emergency derogation systems is the implicit claim that
security crises require measures that would ordinarily be deemed unacceptably
restrictive of rights in order to restore ‘normalcy’. Some put this claim quite
bluntly, asserting that there is a hydraulic relationship between security and
‘liberty’ (taken to mean rights, here) and even that an optimal point between
them can be found, so that there is a clear relationship between the taking
of security measures and the enhancement of rights enjoyment.49 However,
there is no evidence of such hydraulicism,50 and in any case arguments of that
kind tend to be short-term in their nature, failing to take proper account of
the long-term costs of security measures such as reduced social cohesion and
faith in the state, increased alienation and disenfranchisement, and potentially
long-term insecurity.51 Furthermore, and moving to the second concern, even
if there were a relationship between security and rights of this kind, the reality
is that very often the people whose rights are effectively reduced through such
measures are not the people who perceive their security to have been enhanced.
Security-enhancing measures are often imposed disproportionately on people
from so-called suspect communities:52 young men of colour in the UK, Muslim
women in France, Kurds in Turkey, Chechens in Russia, journalists in Azer-
baijan etc. The uneven societal impacts of such measures is a matter of real
concern, not only because they may result in social disintegration and a sense
of alienation from the state, but also because they may reflect discriminatory
application of security measures, laws and policies.53 This may, in turn, become
normalised – seen as part of the everyday policing and governing of the state –
so that the popular expectations of what the state can or should do are funda-
mentally adjusted.
If it is not clear that a reduction in rights protection (through derogation)
necessarily increases security, and if it is the case that the application of security
measures can result in discrimination and may not be effective in terms of secu-
rity in the longer term, the question of whether derogation should be permitted
clearly arises. Very few would argue that no adjustment or derogation should
be permitted at all, either because there is a general (although not universal)

49
See, for example, Posner and Vermeule, Terror in the Balance: Security, Liberty and the
Courts (Oxford University Press, 2007).
50
Ashworth, ‘Security, Terrorism and the Value of Human Rights’ in Goold and Lazarus (eds),
Security and Human Rights (Hart Publishing, 2007).
51
de Londras, ‘Sustainable Security: A Proposal’ in Akande et al. (eds), Human Rights for
Future Generations (Oxford University Press, 2018), forthcoming.
52
Hillyard, Suspect Community: People’s Experience of the Prevention of Terrorism Acts in Britain
(Pluto Press, 1993).
53
Burgess and Maze, ‘The Social Impact of EU Counterterrorism’ in de Londras and Doody
(eds), The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism (Routledge, 2015).
134  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

understanding that security is required for the purposes of being able to exer-
cise rights so that a short-term reduction in rights enjoyment might be justifia-
ble for the purposes of restoring security and rights normalcy, or because of the
pragmatic position that if the law does not allow states to temporarily adjust
their human rights obligations they may simply act in the name of ‘security’ in
violation of the law, so that it is better to have a system of effective supervision
within which emergency measures can be taken than not to. The final proposi-
tion stands, however, only if there is appropriate and effective supervision of the
law relating to derogation, i.e. if there are clear requirements that a state must
comply with in order legitimately to derogate from the Convention.
Article 15 lays out three such requirements: (a) that the procedural require-
ments in Article 15(3) would be fulfilled, (b) that there would be a war or
public emergency threatening the life of the nation (Article 15(1)), and (c) that
the measures taken would go no further than is strictly required by the exigen-
cies of the situation (Article 15(1)). There are, thus, procedural, threshold and
substantive requirements.

The Procedural Requirement

The procedural requirement is quite straightforward: the Contracting Party
that wishes to derogate must notify the Secretary General of the Council of
Europe of the derogation, the measures taken and the reasons for the der-
ogation. In truth, the notifications provided to comply with this procedural
regulation tend to be quite cursory, which is perhaps to be expected as the
notification requirement is essentially procedural and formal and there is no
real scrutiny of the notification of the state of emergency – or of its cessa-
tion – on the part of the Secretary General. At the time of writing (January
2017) there were three active derogations under Article 15 (Ukraine, France
and Turkey). Prior to then eight countries had entered derogations (Albania,
Armenia, France, Georgia, Greece, Ireland, Turkey and the UK).

The Threshold Requirement

Article 15 permits of derogation only where there is a war or public emer-
gency threatening the life of the nation. Thus, in cases where derogations have
been at issue before the Court, the question of whether there existed a war or
public emergency sufficient to permit derogation has arisen. Whilst the Court
has laid down a broad definition of these concepts for the purposes of Article
15, it has been criticised for failing to subject states’ claims that such a state of
affairs exists to sufficiently rigorous examination.54 Furthermore, the Court has
appeared to ‘relax’ the definition of ‘public emergency threatening the life of
the nation’ significantly in recent years.

54
Greene, ‘Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the
European Convention on Human Rights’ (2011) 12 German Law Journal 1764.
 135
The Convention in Times of Insecurity  

In Lawless v Ireland the Court held that a public emergency sufficient to

allow for derogation under Article 15 was to be understood as ‘an exceptional
situation of crisis or emergency which affects the whole population and con-
stitutes a threat to the organised life of which the State is composed’.55 In
the Greek Case the Court added the requirement that the crisis or emergency
would be ‘actual or imminent’.56 These two important early cases suggested
that an emergency should be truly exceptional; that it should be said to exist
only where the normal measures allowed under the Convention – including
limitations to rights based on public safety and so on – were clearly inade-
quate.57 However, in the intervening decades the apparently strict definition of
emergency under Article 15 (in doctrinal terms, at least) has been substantially
watered down, particularly in the important case of A. and Others v the United
Kingdom.58
A. and Others v the United Kingdom involved a challenge to measures taken
by the UK following the attacks on the United States of 11 September 2001.
Although those attacks took place in the United States, the UK declared a
public emergency and derogated from the Convention. It was the only Council
of Europe state to do so, and in A. it was claimed that there was no public
emergency threatening the life of the nation under Article 15 because (a) there
was no actual or imminent emergency, (b) the alleged emergency was not tem-
porary, and (c) the fact no other states in the Council of Europe had derogated
from the Convention suggested that there was no public emergency.
The ECtHR, however, disagreed. Holding that ‘[t]he requirement of immi-
nence cannot be interpreted so narrowly as to require a State to wait for disaster
to strike before taking measures to deal with it’,59 and referring to how the 9/11
attacks had established the ‘danger of a terrorist attack’, the Court found that the
UK was entitled to rely on the intelligence available to it at the time in order to
determine that an attack was imminent and, thus, that the imminence require-
ment was fulfilled. Thus, the apparent requirement of ‘imminence’ appeared to
have been approached with such flexibility as to allow any (presumably good faith)
interpretation of intelligence pointing towards a possible attack to fulfil it. In so
doing, the Court arguably undermined a limited definition of ‘public emergency’
in Article 15(1), and thus loosened one of the constraints designed to ensure that
derogations could only exceptionally be resorted to by a Contracting Party.
That loosening was furthered when the Court turned to the question of
temporariness. Article 15 does not mention that a public emergency threaten-
ing the life of the nation must be temporary, but such a requirement is implicit
in the (legal) concept of emergency, which is designed to allow the state to take
measures that would enable it to restore normalcy. Thus, emergency is clearly
conceived as a state of affairs that is limited in time. However, the Court noted

55
Lawless v Ireland, 7 April 1961, Series A no. 2, 27.
56
The Greek Case, no. 3321/67, (1969) 12 YB 1, paras 112–113.
57
Ibid., para. 113.
58
A. and Others v the United Kingdom [GC], no. 3455/05, ECHR 2009.
59
Ibid., para. 177.
136  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

that its case law had ‘never, to date, explicitly incorporated the requirement
that the emergency be temporary’.60
Thus, whilst the threshold requirement appears, at first glance, to constrain
states’ ability to declare an emergency and derogate under Article 15, the
Court seems to have interpreted the concept of ‘public emergency threatening
the life of the nation’ in such a way that it can be applied to a great number of
situations, even ones that are liable to last for a considerable period of time –
years, or perhaps decades.
This has been criticised by some as allowing for the concepts of emergency
and normalcy to be ‘collapsed’ in a manner that gives states far too much
leeway to derogate and introduce measures that we would not ordinarily con-
sider to be appropriate or rights compliant.61 However, it is arguable that there
is some logic to the Court’s approach. If the purpose of Article 15 is to allow
states to act in order to counter ‘threat[s] to the organised life of which the
State is composed’, then it must be capable of allowing effective state responses
to contemporary threats. In contemporary Europe one of these is said to be
a kind of persistent, disaggregated, transnational terroristic violence that can
emerge suddenly, can persist without much centralised organisation, can be
sustained with relatively modest resources, and cannot be ‘reasoned’ with as
its apparent endpoint is not a negotiated settlement to a discrete dispute but
rather a more substantial politico-social change across the entire continent
(and beyond). The fact that this is not temporary, geographically constrained,
or organised in a manner similar to a conventional army, for example, does not
mean that it is not a public emergency that threatens the life of the nation; the
alternative is to define it as normalcy and to limit the state to measures that
are ordinarily permitted under the limitations built into the Convention rights
and, the argument goes, a state should not be precluded from using the dero-
gation if it considers these to be ‘plainly inadequate’.
Indeed, although the Court has been at pains to make it clear that this deci-
sion – as to whether there is a public emergency as understood under Article 15
– is one that is properly subject to judicial supervision by the Strasbourg Court,
it tends to afford a high level of respect (or we might call it ‘deference’) to the
decision on this question that the state authorities make. In other words, the
Strasbourg institutions almost never disagree with the state that there is in fact
an emergency; in fact, it has done so only once, in the Greek Case in 1969.62
The Court’s approach is clear from its sentiment in Brannigan and McBride v
the United Kingdom63 to the effect that

[I]t falls to each Contracting State, with its responsibility for ‘the life of [its]
nation’, to determine whether that life is threatened by a ‘public emergency’
[…]. Contracting Parties do not enjoy an unlimited power of appreciation.64

60
Ibid., para. 178.
61
See Greene, ‘Separating Normalcy from Emergency’ (above, n. 54).
62
The Greek Case (above, n. 56).
63
Brannigan and McBride v the United Kingdom, 26 May 1993, Series A no. 258-B.
64
Ibid., para. 43.
 137
The Convention in Times of Insecurity  

The Court has repeated this sentiment over the years, and for some commen-
tators it is not at all clear that the Court subjects this important threshold
decision to meaningful scrutiny,65 so that the ‘degree of scrutiny’ it applies ‘is
hardly different from accepting the parties’ own view of the situation’.66 This,
of course, is a matter of some concern, for as already noted the threshold cri-
terion is one of the mechanisms by which the potential for abuse under Article
15 might be minimised.
If the Court does not apply a rigorous assessment at this stage, one might
reasonably ask whether the threshold criterion can be effective in this task.
However, the Court is not a fact-finding institution; it is supposed to interpret
and apply law to pre-established facts. This limitation makes it institutionally
challenging for the Court to apply the threshold criterion under Article 15 in a
meaningful and rigorous way, simply because the existence of an emergency as
defined by law is very much a matter of interpreting facts within a given set of
circumstances in the state in question. Whilst it is not impossible for the Court
to make such an assessment, it is difficult for it, since the national government
and institutions thereof are most familiar with the factual situation, and with its
impact ‘on the ground’.

The Substantive Requirement

Given the difficulties that perhaps understandably arise in respect of determin-
ing the threshold question under Article 15, it might reasonably be expected
that the Court would apply the substantive requirement under Article 15
with a closer degree of scrutiny, as indeed it does. The substantive require-
ment laid out in Article 15 has three parts, (a) that there would be no deroga-
tion from non-derogable rights listed in Article 15(2), (b) that any measures
taken pursuant to a derogation would be consistent with the state’s other
obligations under international law (Article 15(1)), and (c) that such meas-
ures would go no further than ‘the extent strictly required by the exigencies
of the situation’.
The first of these substantive requirements is easily disposed of at this stage:
Articles 3, 4(1) and 7 cannot be derogated from. Nor can Article 2, although
as we have already seen Article 2 is not violated where a death results from
‘lawful acts of war’. Any attempt to derogate from these Articles is, simply, a
violation of Article 15 and thus impermissible.
The second substantive requirement enables the Court to consider whether
a measure introduced pursuant to a derogation violates the state’s other inter-
national obligations. If it does, then it also violates the Convention, not least

65
See, for example, Gross and Ní Aoláin, ‘From Discretion to Scrutiny: Revisiting the Margin
of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human
Rights’ (2001) 3 Human Rights Quarterly 625.
66
Harris et al., Harris, O’Boyle and Warbrick Law of the European Convention on Human
Rights (3rd edn, Oxford University Press, 2014), 835.
138  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

because Article 53 makes it clear that the Convention is intended to coexist

with, and not limit, the rights and freedoms that are guaranteed under other
international agreements that the state is a party to. Although one can imagine
that this substantive requirement would be amenable to judgment by the
Court, the reality is that it has rarely if ever had an impact in cases on whether
there is a violation of Article 15. Instead of interpreting and assessing compli-
ance with a state’s other international obligations in Article 15 cases, the Court
has tended to shy away from these questions. Whilst this might be explained by
reference to a judicial respect for the authority of other international organisa-
tions in the interpretation and application of these texts (for example, the UN
Human Rights Committee in applying the International Covenant on Civil and
Political Rights), we have already seen that the Court has been quite willing to
engage in substantive analysis of international law in other cases relating to war
and insecurity but which do not invoke or involve Article 15 per se. It is, thus,
perhaps somewhat curious that the Court is so ‘hands off’ in relation to this
textual limitation on states’ actions under Article 15.
This becomes less curious, however, when one considers the approach of
the Court to the ‘strictly required by the exigencies of the situation’ limita-
tion. In essence, this requires that even where a state has derogated it may only
introduce measures that are necessary and proportionate to the emergency in
question. Necessity here (‘strictly required’) is assessed by considering whether
the ordinary law is insufficient to address the emergency,67 giving considerable
weight to the view of the Contracting Party as to both the need for extraordi-
nary measures68 and the unfeasibility of alternatives.69 It means that the Court
simply does not ‘need’ to consider if a particular interference violates other
international obligations – it can still find it violating the ECHR.
Importantly, establishing that a measure was limited to that which was
‘strictly required by the exigencies of the situation’ does not require the state
to establish that the approach taken to the derogation was the best, only, or
most appropriate one that the state could have taken, although the question
of whether a less restrictive alternative might have been adopted will be con-
sidered.70 It does not even have to establish that the measure was effective
in addressing the emergency.71 In other words, it affords states a significant
margin of appreciation in this relation. This means that the Court will not ‘sub-
stitute its view as to what measures were most appropriate or expedient’72 at
the time of the derogation; it will simply consider whether the measures intro-
duced went no further than was strictly required by the exigencies of the situ-
ation. This is, we suggest, reasonable in principle: as a general matter, it is not
for courts to decide on what the state should do but only what it may do. The

67
Lawless v Ireland (above, n. 55).
68
Ireland v the United Kingdom, 18 January 1978, Series A no. 25.
69
Brannigan and McBride v United Kingdom (above, n. 63).
70
Lawless v Ireland (above, n. 55).
71
Ireland v United Kingdom (above, n. 68).
72
Marshall v United Kingdom (dec.), no. 41571/98, 10 July 2001.
 139
The Convention in Times of Insecurity  

former is a question of policy and the latter of law, although the two things are
not easily separated in real terms and therefore the context of emergency and
(in)security is a highly sensitive and complex one.73 How, then, does the Court
navigate the tricky terrain between them in assessing measures taken under
Article 15?
The Court takes a highly contextualised approach to such analysis, recog-
nising that what is proportionate in one situation may not be proportionate
in another; rather, whether or not any measure is proportionate in any emer-
gency depends on ‘the rights affected by the derogation, the circumstances
leading to, and the duration of, the emergency situation’.74 The more severe
the emergency, the more severe the measures that might be considered to be
strictly required to address it,75 although we must recall that both the exist-
ence and the severity of the emergency are determined by the Court giving a
high degree of deference to the assessment of the respondent state. The ques-
tion of duration is particularly important; although as we have already seen the
Court does not insist that an emergency must be ‘temporary’ per se, it does
note that where an emergency is of a long duration this will impact on the pro-
portionality of the measures under consideration.76 In other words, the longer
the emergency goes on, the more the state is expected to return to something
that resembles ‘normalcy’ in its attempts to address it. This is entirely consist-
ent with the idea of allowing adjustment to our expectations of what inter-
ferences with rights might be considered permissible in an emergency: more
repressive measures are supposed to be taken with the intention of returning
the polity to a state of normalcy, i.e. with countering the emergency in ques-
tion. Thus, a protracted emergency should not allow a protracted regime of
rights restriction.
When considering whether a measure was ‘strictly required by the exigen-
cies of the situation’ the Court will be attentive to whether there were safe-
guards in place to protect people who might be subjected to the derogating
measures. This is particularly important where emergency measures are intro-
duced to allow for protracted detention without trial, or variations to the trial
process itself. In relation to the former, the role that safeguards play in the
Court’s analysis is readily discernible by comparing Brannigan and McBride v
the United Kingdom77 with Aksoy v Turkey.78 Both concerned detention powers
in situations of terroristic violence, but in Brannigan and McBride the Court
noted that there was a right to see a solicitor within 48 hours of being detained

73
For a range of views on the challenges for courts in adjudicating in times of emergency
see, for example, Davis and de Londras (eds), Critical Debates on Counter-Terrorism Judicial
Review (Cambridge University Press, 2014).
74
Brannigan and McBride v the United Kingdom (above, n. 63), para. 43.
75
Ireland v United Kingdom (above, n. 68).
76
See generally A. and Others v United Kingdom (above, n. 58).
77
Brannigan and McBride v the United Kingdom (above, n. 63).
78
Aksoy v Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI.
140  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

and that the writ of habeas corpus could be used to challenge detention in any
given situation. The Court thus concluded that there were sufficient proce-
dural safeguards in place to protect a detainee against arbitrary detention and
mistreatment. In Aksoy, by contrast, the law allowed for detention of an indi-
vidual without bringing them before a judge or other officer for up to 30
days, there was no access to lawyers, family or medics; and there was no way to
challenge the lawfulness of detention. The detainee was, thus, liable to abuse
and incommunicado detention, and the Court found (for the first time) that
the measures introduced pursuant to the derogation went beyond the strict
requirements of the situation.
As is clear from Aksoy, the Court can and sometimes does find that a state has
gone beyond what Article 15 permits; however this is rare, and the approach
taken to all Article 15-related analysis is one in which the assessment of the
national governments is given great weight by the Court. Whilst there are
good reasons for affording some margin of appreciation to these assessments,
as already noted, there is much to be said for the contention that the Court
gives so much weight to these assessments that it does not effectively enforce
the substantive requirements of Article 15. If that is the case, then rights-
bearers’ ability to use these substantive requirements to limit state security
action – which, as we know, is often extremely repressive and oppressive – is
greatly reduced, and a broad question about the effectiveness of the Conven-
tion in times of emergency arises. The ‘Faustian pact’ of derogations relies, for
its efficacy, both on good faith on the part of governments and rigour on the
part of the international supervisory bodies, especially if domestic parliaments
and courts have found it difficult to resist the temptation to ‘rally around the
flag’ and enforce rights protection in the face of substantial security risks and
state-assertions of necessity.

Debate 4
Does the Convention protect people from ‘everyday insecurity’?
Thus far, we have concentrated on what we might call exceptional situations
of insecurity; however, in reality insecurity is an everyday occurrence. All over
Europe, domestic violence, sexual violence, police violence, corporal punish-
ment and other forms of violent insecurity continue to pose substantial chal-
lenges. Such insecurity necessarily implicates rights; not only does one struggle
fully to enjoy and exercise rights in situations of pervasive insecurity, but expo-
sure to and failure of the state to prevent violence might, itself, constitute a
human rights violation under the Convention. Whilst the jurisprudence of the
Court ranges across corporal punishment,79 conditions of detention (beyond

79
See, for example, Tyrer v the United Kingdom, 25 April 1978, Series A no. 26; A. and Others v
United Kingdom (above, n. 58); Campbell and Cosans v the United Kingdom, 25 February 1982,
Series A no. 48; Costello-Roberts v the United Kingdom, 25 March 1993, Series A no. 247-C.
 141
The Convention in Times of Insecurity  

directly inflicted violence, per se)80 and police violence,81 we focus here on the
ECtHR’s approach to domestic violence as illustrative of the Convention’s
ability to protect against everyday insecurity.
The law has traditionally been slow and ineffective in addressing issues of
domestic violence. Thought to take place in a ‘private’ domain in which the state
ought not to ‘interfere’,82 it was not until the UN Convention on the Elimina-
tion of all Forms of Discrimination against Women that international human
rights law took a firm doctrinal stand against the maintenance of the so-called
‘public-private divide’.83 The ECHR might itself be read as a text that impliedly
reinforces this divide; privacy and family life are protected from undue interfer-
ence in Article 8, private property (including the home) is protected in Article 1
of Protocol 1, and whilst Articles 2 and 3 protect the rights to life and to be free
from torture, inhuman and degrading treatment or punishment, that protection
was originally conceived as being against state, as opposed to ‘private’, action.84
However, over recent years the Court’s jurisprudence has developed a substantial
body of law on the state’s obligation to protect people from domestic violence
and to undertake effective investigations where a loss of life was not averted.
This is well illustrated by the case of Bevacqua and S. v Bulgaria.85 The
applicant in this case claimed that she was regularly beaten by her husband and
that these beatings continued after she took their son, left her husband and
filed for divorce. Before the finalisation of the divorce, a court order of shared
custody was given in respect of the child, requiring continued contact between
them, and she claimed that every time she pressed charges against him, her
husband became more violent. Repeated requests for interim measures of pro-
tection were not promptly dealt with, and her then-ex-husband continued to
assault her even after their divorce was finalised and she had secured custody
of their son. At that time her request for a criminal prosecution was rejected,
the authorities claiming that it was a ‘private matter’ between them. The Court
held that the state had failed to fulfil its positive obligations under Article 8 (the
right to private and family life), with particular attention to the rights of the
child, but stressing that considering these allegations of abuse to be a ‘private
matter’ was clearly incompatible with Article 8.

80
See, for example, Kalashnikov v Russia, no. 47095/99, ECHR 2002-VI; Dobri v Romania,
no. 25153/04, 14 December 2010; Modarca v Moldova, no. 14437/05, 10 May 2007.
81
See, for example, Leonidis v Greece, no. 43326/05, 8 January 2009; Iribarren Pinillos v
Spain, no. 36777/03, 8 January 2009.
82
The public/private dichotomy has long been critiqued in feminist and feminist legal
thought. For its classical criticism in international legal thought see Charlesworth and Chinkin,
The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000).
See also Edwards, Violence against Women under International Human Rights Law (Cam-
bridge University Press, 2011).
83
Article 2, CEDAW.
84
The ECHR was not unique in this. For a comprehensive overview see Thomas and Beasley,
‘Domestic Violence as a Human Rights Issue’ (1993) 15 Human Rights Quarterly 36.
85
Bevacqua and S. v Bulgaria, no. 71127/01, 12 June 2008.
142  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Even though Bevacqua resulted in a finding of violation, it did not focus

clearly on the bodily rights of the primary victim of the abuse.86 However, pro-
gress is being made in this respect under Article 2, which protects the right
to life, including obliging the state to take steps to protect life including from
the application of lethal force by non-state actors. Unfortunately, a very high
number of women and children, as well as some men, die as a result of domestic
violence every year, and in 2007 the Court established that the state could be
liable in respect of this under Article 2. In Kontrová v Slovakia87 the Court con-
sidered a case in which the applicant had filed a criminal complaint against her
husband for beating her. Shortly thereafter, and accompanied by her husband,
she attended at the police station where, with the assistance of an officer, she
modified her complaint so that it constituted a minor offence in respect of
which no further action was required by law. Less than two months later, her
husband murdered their son and daughter. The Court held that Slovakia had
violated Article 2; the original complaint meant that the police authorities
were aware of the violent situation in the home and had domestic legal obliga-
tions to act on this, including to launch a criminal investigation. The fact that
the applicant had subsequently modified her complaint, accompanied by her
husband, did not mean that the state was relieved of its Article 2 obligation to
take all reasonable steps to protect life.
This is not an unusual pattern in these cases: the state is aware of the threat
that the assailant poses to family members and yet fails to take adequate steps
to protect them. In Branko Tomašić and Others v Croatia,88 court-ordered psy-
chiatric treatment was not effectively administered to the assailant, who subse-
quently murdered his wife and baby on release from prison. In Civek v Turkey89
the authorities were aware of the serious threat to life and of the deceased’s
harassment but failed to take reasonable steps to prevent her husband from
murdering her. The key point here is not that the Court expects that states
would be able to prevent all instances of fatal domestic abuse, but rather that it
has made clear that Article 2 includes an obligation to take seriously the infor-
mation available to state authorities and to act in order to protect life in situa-
tions of domestic and intimate-partner abuse.
A similar approach is discernible in the Article 3 jurisprudence, in respect
of which it has been found that states have a procedural obligation to ensure
effective investigation of allegations of abuse with a view to ensuring protec-
tion from such treatment. This was the case in, for example, Valiuliene. v Lith-
uania90 and E.M. v Romania.91 In spite of this, however, it was always clearly

86
Other cases focusing on Article 8 in this respect include Hajduová v Slovakia, no. 2660/03,
30 November 2010; A. v Croatia, no. 55164/08, 14 October 2010, and Kalucza v Hungary,
no. 57693/10, 24 April 2012.
87
Kontrová v Slovakia, no. 7510/04, 31 May 2007.
88
Branko Tomašić and Others v Croatia, no. 46598/06, 15 January 2009.
89
Civek v Turkey, no. 55354/11, 23 February 2016.
.
90
Valiuliene v Lithuania, no. 33234/07, 26 March 2013.
91
E.M. v Romania, no. 43994/05, 30 October 2012.
 143
The Convention in Times of Insecurity  

understood that domestic violence might engage the absolute prohibition on

torture, inhuman and degrading treatment or punishment in Article 3. The
important case of Opuz v Turkey92 explores this.
The applicant and her mother had been subjected to years of violent abuse
by the applicant’s husband, and had made frequent complaints to the police.
With the exception of one, these complaints had all been withdrawn, the
women explaining that the husband had harassed them into doing so, includ-
ing by threatening to kill them. Each time a complaint was withdrawn the
police desisted from any investigation, deeming them ‘family matters’. The
husband subsequently stabbed his wife, the applicant, seven times, following
which he was fined. In spite of both women claiming that their lives were
in danger, he was released by the police following questioning. When they
tried to move away, he shot his mother-in-law, killing her. He was convicted of
murder and sentenced to life imprisonment; however, he was released pending
appeal. His wife, the applicant, claimed that he continued to harass her.
As well as finding a violation of Article 2, the ECtHR importantly con-
cluded that Turkey had violated Article 3 by its failure to protect the appli-
cant. The mistreatment in this case reached the minimum level of severity to be
considered inhuman and degrading treatment or punishment – the first time
the Court had reached this conclusion in a domestic violence case – and the
state had obligations to protect the applicant from such abuse. Instead, here,
the authorities had not even used the measures available to them (limited as
they were), and on the whole Turkey did not have an effective legal frame-
work allowing for criminal proceedings in situations of this kind. Furthermore,
and extremely importantly in the context of domestic violence, the Court pro-
ceeded to find a violation of Article 14 (the right to non-discrimination) in
conjunction with Articles 2 and 3, holding that there was a climate of general
passivity about domestic violence among the Turkish judiciary, in spite of the
high incidence of such violence in the country, which in fact created an atmos-
phere conducive to domestic violence. The violence experienced by the appli-
cant and her mother could, thus, be said to be gender-based discrimination
resulting from authorities’ failure properly to address domestic violence in the
country.
Opuz, then, represented a landmark in the Court’s treatment of domes-
tic violence, recognising not only that domestic violence could engage Article
3 but also that a state’s failure adequately to address domestic violence could
constitute discrimination under Article 14. This continued with Eremia v
Moldova,93 in which the applicants (a woman and her two daughters) com-
plained of the Moldovan authorities’ failure to protect them from abuse from
their husband and father, who happened also to be a police officer. The Court
found violations of Article 3 and 8, and then drawing on Opuz also of Article

92
Opuz v Turkey, no. 33401/02, ECHR 2009.
93
Eremia v the Republic of Moldova, no. 3564/11, 28 May 2013.
144  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

14 combined with Article 3. As far as the Court was concerned, the authori-
ties’ failure to take action to protect the applicant amounted to repeatedly con-
doning her husband’s treatment of her and reflected a discriminatory attitude
to her as a woman. All of this was compounded by their unwillingness to act
against a fellow police officer. Similar findings of discrimination in respect of
domestic violence have since been made in M.G. v Turkey (Article 3 in con-
junction with Article 14)94 and Halime Kiliç v Turkey (Article 2 in conjunction
with Article 14).95
In March 2017, this pattern was consolidated with the important cases of
Talpis v Italy.96 In this case, the applicant had been abused by her husband on
several occasions, as had her children. The police had been called to the scene
on the first occasion (when he beat the applicant and her daughter), and on
the second occasion (when her husband attacked her with a knife and tried to
force her to go with him and have sex with his friends) she sought assistance
from a police patrol on the street, which fined him for carrying a prohibited
weapon and suggested Ms Talpis go home. On that occasion she also engaged
with an accident and emergency unit in a hospital, and then went to a women’s
shelter but after three months there she had to leave as they had insufficient
space and resources to support her. For a short while she was then homeless
but subsequently found a job and rented a flat. Her husband continued to
subject her to psychological abuse by telephone during this time. In September
2012, Ms Talpis lodged a formal complaint against her husband and sought
urgent protection for herself and her children. It was seven months before the
police first questioned her, at which stage she mitigated the allegations and
in August 2013 the file was closed. Around three months later Mr Talpis was
found intoxicated on the street after the applicant had called the police con-
cerning an argument with her husband. The police urged him to go home, and
upon entering the apartment he attacked Ms Talpis and fatally stabbed his son.
He also stabbed Ms Talpis in the chest. Her injuries were not fatal. Mr Talpis
was subsequently convicted of murder and attempted murder, and sentenced
to life imprisonment. Ms Talpis claimed that there had been a violation of her
rights under Articles 2 and 3 in conjunction with Article 14. The Court found
multiple violations in this case.
According to the judgment of the Court, the Italian authorities had failed to
exercise the requisite diligence required to act in a timely and effective manner
to protect the right to life of Ms Talpis and her son. This related not only
to the failure to act promptly after the applicant’s complaint in September of
2012 but also to the police failure to take any action to protect Ms Talpis and
her children on the night of the stabbing, in spite of having engaged with her
husband on a number of occasions that evening and the fact that the police
knew, or should have known, that he posed a real threat to her. Similarly,

94
M.G. v Turkey, no. 646/10, 22 March 2016.
95
Halime Kılıç v Turkey, no. 63034/11, 28 June 2016.
96
Talpis v Italy, no. 41237/14, 2 March 2017.
 145
The Convention in Times of Insecurity  

the unexplained and unjustifiable delay in acting on Ms Talpis’ complaint in

2012 resulted in a violation of Article 3, particularly as she was a vulnerable
person subjected to violence of sufficient severity to reach the threshold of ill-
treatment under Article 3. Finally, the Court reiterated its position from Opuz
that a state’s failure to protect women against domestic violence violates the
right to equal protection of the law. Here, the police failures to act to protect
Ms Talpis and proceed with investigations in a timely manner was so serious
as to effectively endorse the violence in question, constituting discrimination
against her as a woman under Article 14. Interestingly, the Court also referred
to reports of the UN Special Rapporteur on Violence against Women, the Com-
mittee for the Elimination of Discrimination against Women, and data from the
National Bureau of Statistics to show that domestic violence is a serious and
extensive problem in Italy, grounded in discrimination. The violence inflicted
on Ms Talpis was, then, also said to be grounded on sex and thus to be a form
of discrimination violating Article 14 in conjunction with Articles 2 and 3.97
This jurisprudence signals an important breakthrough in the Court’s
approach to domestic violence, recognising clearly the role that legislative,
administrative and policing frameworks can play in implicitly condoning domes-
tic violence (and thus implicitly acknowledging domestic violence as an out-
working of structural inequality), whilst also identifying them as key elements
in any attempt effectively to address domestic violence systemically and in
individual cases. The Court’s broader concentration on investigation, remedy
and taking steps to protect persons from rights violation is consistent with its
general approach to states’ obligations in respect of everyday violence. The
Convention, in short, requires states to recognise private violence as having a
public dimension, to have in place appropriate legislative frameworks to address
such violence, to take steps to protect people from violence, to investigate sit-
uations where violence occurs, and to ensure the availability of domestic reme-
dies should it fail in so doing. Whilst none of this alone addresses the pervasive
and structural prejudices and inequality of power that underpin so much every-
day insecurity and violence, these developments in the Court’s jurisprudence
identify clearly the state’s role in attempting to address and undo them, not
merely as a matter of good will but as a matter of international legal obligation.

Conclusion
In situations of insecurity, rights matter. In many cases of systemic insecurity,
war and emergency, states have not hesitated to interfere with human rights
ostensibly in the name of restoring normalcy. The law accommodates this, and

97
However, cf. the partly dissenting judgment of Judge Spano in this case,
and the critique thereof in van Leeuwen, ‘The Limits of Human Rights Law:
Dissenting Androcentric Voices in Talpis v. Italy’, Strasbourg Observers, 30
May 2017, available at https://strasbourgobservers.com/2017/05/30/
the-limits-of-human-rights-law-dissenting-androcentric-voices-in-talpis-v-italy/.
146  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 15 allows for reductions in rights protection in times of emergency;

however, in order for that allowance to be exercised only when absolutely
necessary a rigorous assessment of states’ claims of insecurity and necessity is
needed. We have seen in this chapter that such rigour is not always in evidence,
even though it seems required to ensure the effective supervision of human
rights compliance in times of emergency. However, those extraordinary situ-
ations are not the only times when insecurity needs to be addressed. Indeed,
interpersonal violence is such a serious and widespread experience that insecu-
rity might well be said to be a quotidian condition. In that context the question
becomes whether the ECHR offers any potential to enhance personal secu-
rity. As the jurisprudence on domestic and intimate violence shows, the Court
is developing an approach that takes such insecurity seriously and places clear
expectations on states to prevent and protect from these forms of normalised,
but gravely serious, everyday insecurity.

Further Reading
Edwards, Violence against Women under International Human Rights Law (Cambridge
University Press, 2011).
Ekins, Morgan and Tugendhat, Clearing the Fog of War: Saving our Armed Forces from
Defeat by Judicial Diktat (Policy Exchange, 2015).
Greene, ‘Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the
European Convention on Human Rights’ (2011) 12 German Law Journal 1764.
Rooney, ‘The Relationship between Jurisdiction and Attribution after Jaloud v.
Netherlands’ (2015) 62 Netherlands International Law Review 407.
 CHAPTER 7

Socio-Economic Rights and the European

Convention on Human Rights

So far throughout this book we have focused – as the European Convention on

Human Rights (ECHR or Convention) does – on rights that might broadly be
defined as ‘civil and political’. However, these are not, of course, the only kinds
of human rights that exist either in philosophy and ethics, or in law. More than
a decade after the Convention was signed into law, international human rights
law developed treaties focusing on both civil and political rights (the Interna-
tional Covenant on Civil and Political Rights) and socio-economic rights (the
International Covenant on Economic, Social and Cultural Rights). Although
there are important differences between these international covenants (and
these are extensively canvassed elsewhere1), the basic principle of indivisibility
and universality underpin them.2 By this, we mean the principles in interna-
tional human rights law that both categories of rights are supposed to be uni-
versally enjoyed by all human beings and are indivisible.
This notwithstanding, some continue to question the status of socio-­
economic rights. The precise contours of this debate do not need to be revisited
here,3 but the broader questions of the role of rights, of courts, and of human
rights courts per se are relevant to Debate 1 in this chapter: should the ECHR
be used to protect socio-economic rights? This is an important question, and
depends to some extent on how far we think courts should ‘stretch’ classically
conceived civil and political rights to address poor socio-economic conditions,
as well as concerns that socio-economic matters are complex, polycentric issues
with inescapable resource implications for states that should be approached
with caution – if at all – by courts.

1
For a comprehensive overview on the differences, and similarities, between the two see
Gavison, ‘On the relationships between civil and political rights, and social and economic
rights’ in Coicaud et al. (eds), The Globalization of Human Rights (United Nations University
Press, 2003).
2
See the Vienna Declaration and Programme of Action (1993).
3
See, for example, O’Connell, Vindicating Socio-Economic Rights (Routledge, 2012),
Chapter 1.
147
  
148  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

These questions have become especially urgent in recent years, since the
Global Financial Crises of the late 2000s ushered in periods of ‘austerity’ that
caused intense economic hardship and exacerbated structural socio-economic
inequalities, particularly in European states most sharply impacted by these
austerity programmes. The attempt to resist an approach to economic recov-
ery that is centred on austerity and the reduction in welfare provision by the
state has resulted in imaginative litigation in the ECtHR which we consider in
Debate 2: can the ECHR be used to challenge austerity?
This leads us, then, to the third debate in this chapter, focused on Article
14 and the anti-discrimination norm in the Convention. Article 14 is, at first
glance, a ‘relatively insipid’4 (or some might say ‘parasitic’ right5), by which
we mean that it does not – on the face of it – create a stand-alone right to be
free from discrimination (much less to equality) but rather affirms the right to
non-discrimination in the enjoyment of other Convention rights. It has long
been argued that this is inadequate to ground an effective jurisprudence of
anti-discrimination under the Convention, but recent jurisprudence suggests
some shift away from a strict construction of Article 14 in this limited way and
towards something more attuned to the protection of a substantive concep-
tion of equality. In addition, Protocol 12 to the Convention has created a free-
standing right to non-discrimination, although it is far from being universally
ratified by all of the Contracting Parties to the Convention and rarely used by
the European Court of Human Rights (ECtHR or Court). We thus close the
Chapter by asking whether the right to non-discrimination in the ECHR can
promote socio-economic equality.

Debate 1
Should the ECHR be used to protect socio-economic rights?
The ECHR primarily protects civil and political rights, with the exception
of rights to education (Article 2, Protocol 1) and to the protection of prop-
erty and possessions (Article 1, Protocol 1). However, there is a relationship
between civil and political, and socio-economic, rights. Indeed, the Court rec-
ognised this relationship as early as Airey v Ireland6 when it found that a failure
to make civil legal aid available was a breach of Article 6 rights to due process.
According to the Court, the Convention ‘is designed to safeguard the indi-
vidual in a real and practical way as regards those areas with which it deals’,7
and where that requires ‘extend[ing] into the sphere of social or economic
rights’ so be it.8 Indeed, the Court continues to make findings relevant to

4
Fredman, ‘Emerging from the Shadows: Substantive Equality and Article 14 of the European
Convention on Human Rights’ (2016) 16 Human Rights Law Review 273, 273.
5
Whaley v Lord Advocate [2004] SC 78, para. 93
6
Airey v Ireland, 9 October 1979, Series A no. 32.
7
Ibid., para. 26.
8
Ibid.
 149
Socio-Economic Rights and the European Convention on Human Rights  

socio-economic rights in the field of access to justice, finding particularly that

unreasonably high fees can result in people being unable to bring disputes
before courts or tribunals.9
This brings us to an important point in the discussion of socio-economic
rights under the Convention: that the Court has largely addressed them only
inasmuch as they relate to the ‘areas with which [the ECHR] deals’, rather than
on a stand-alone basis. This is perhaps not surprising. The potential for protect-
ing socio-economic rights when they are clearly linked to the civil and political
rights expressly protected within the Convention is substantial. For example,
there is ‘space’ within a right to be free from inhuman and degrading treatment
to establish a state’s obligation to ensure a meaningful and adequate provision
of medical care,10 which bears close resemblance to the right to an adequate
standard of healthcare as protected in socio-economic rights instruments and
jurisprudence.11 Similarly, the right to private and family life can be developed
in a way that recognises an obligation to ensure that people can live in a way
that accords with their cultural practices.12 This too might then bear a resem-
blance in substantive and practical terms to the right to culturally appropriate
housing protected under socio-economic rights instruments and international
jurisprudence.13 Thus, it is clear that there is space for some socio-economic
right to be protected in a practical sense, particularly in relation to the positive
obligations that have been developed in Convention jurisprudence in order
to give full effect to the rights protected therein.14 The question, however,
that we consider here is whether such jurisprudential developments ought to be
undertaken.
Perhaps the first argument against such development is that the text explic-
itly precludes the protection of such rights, largely on the basis that silence
might be considered to indicate exclusion, and thus that protecting them –
even in effect if not in form – is an unacceptable extension of the Convention
beyond its intended meaning. Indeed, in Chapter 4 we saw that just such a
criticism is levied by some states against evolutive interpretation of the Con-
vention in other contexts. In relation to those debates we noted that such a
criticism is sometimes rooted in an overly formalistic conception of ‘origi-
nal consent’ as determining the extent of a state’s international obligations,
and furthermore that techniques of interpretation had been developed by
the Court in order to establish the legitimacy of such evolutive interpreta-
tion, albeit that there may still be cases in which the Court might be said to

9
See, for example, Mehmet and Suna Yiğit v Turkey, no. 52658/99, 17 July 2007.
10
D. v the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997-III.
11
Article 25, Universal Declaration of Human Rights; Article 12, International Covenant on
Economic, Social and Cultural Rights.
12
See, for example, Winterstein and Others v France, no. 27013/07, 17 October 2013.
13
Article 11, Universal Declaration of Human Rights.
14
See Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Hart Pub-
lishing, 2007), Chapter 1.
150  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

go ‘too far’ by reference to the text, purpose, and understanding of the Con-
vention.15 Can such arguments also be made in respect of the development
of socio-economic protection within Convention jurisprudence? On the face
of it, the answer is yes; after all, if evolution is acceptable in some contexts,
why not in others? However, the counter-argument would be to point to
the purpose of the Convention as originally promulgated, and to note that
whilst evolution of the Convention in line with the original overall purpose
of the treaty is legitimate and justifiable, evolution which extends the scope of
the treaty beyond its original purpose is not. In other words, that some limits
to evolution must be accepted, and that those limits might be found in the
purpose of the Treaty, as suggested by Article 31(1) of the Vienna Conven-
tion on the Law of Treaties:

A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose.

We already saw, in Chapter 1, that the Convention was developed and pro-
posed as a mechanism for protecting the peoples of Europe from tyranny
and oppression. Its purpose was, thus, to enable human flourishing primarily
through protecting democracy, the rule of law, and participation in govern-
ment. This is quite in line with the liberal internationalism that also under-
pinned the founding of the European Coal and Steel Association16 around the
same time: democracy, free markets, capital and civil liberties would be the life-
blood of developing and preserving peace and prosperity.
In that mindset, rights were primarily negative (protections from interfer-
ence) rather than positive (entitlements to state action), and (quite in line with
this) provision for material human necessities – food, shelter, medical care, for
example – was primarily to be achieved through developing individual eco-
nomic power and resources by freeing markets not through legally enforceable
rights. Capital was the route to socio-economic security, not state protected
and legally justiciable human rights. Whilst states might provide a welfare net
that was not because human rights demanded it, but because the concept of
statehood and the domestic social contract did; it was for the domestic gov-
ernment – and usually the Executive – to decide on the exact contours of that
provision.
Within this framework, the concept of socio-economic rights protection per
se is somewhat alien; it would certainly seem to fall outside of the purposes of
the Convention understood in the round, and outside of the common con-
stitutional and democratic conceptions of material provision as existed when
the Convention was founded. In the original proposal for the rights to be

15
See, for example, Hoffmann, ‘The Universality of Human Rights’ (2009) 125 Law
Quarterly Review 416.
16
The predecessor of the European Union.
 151
Socio-Economic Rights and the European Convention on Human Rights  

protected within the Convention, the only thing that might be defined as a
socio-economic right to be found related to property, and even then the pro-
posed protection was for ‘freedom from arbitrary deprivation of property’.17
Even read in line with the original proposal for ‘equality before the law’,18 it is
difficult to read this as a proposal aimed at redistribution and tackling systemic
inequalities. It is, rather, aimed primarily at ensuring that persons can protect
what they already have; the least progressive way of conceptualising a right to
property that one might imagine from the perspective of concern for providing
the basic necessities for humans to survive, not least to thrive.
Importantly, both the approach to negative and positive rights, and the
constitutional cultures of the state parties, are now quite different to how
they were in the early 1950s. The Court has developed positive obligations
designed to ensure the protection and enjoyment of rights, and not merely
focused on whether states have unjustifiably interfered with protected rights
(i.e. the negative enquiry).19 In other words, positive obligations have been
developed to ensure the fulfilment of protected rights, which in turn are now
sometimes conceptualised as rights to and not merely rights from. Expanding
the protection thus available under the Convention to address situations of
material need, where the state’s failure to provide basic necessities means that
the person cannot enjoy the protected right, might be said to be a relatively
modest jurisprudential leap if one accepts the development of positive obliga-
tions per se.
This is particularly so when we take into account the fact that state parties to
the Convention increasingly protect some kind of economic or socio-economic
rights by constitution or legislation, and indeed that this is part of constitu-
tional culture in some post-Soviet states in particular which became members
of the Council of Europe following the fall of the USSR. O’Cinnéide has con-
vincingly shown that social constitutionalism is part of European legal herit-
age and culture(s).20 If the Convention truly does reflect a ‘common heritage
of political traditions, ideals, freedom and the rule of law’21 across the member
states of the Council of Europe, and if those can evolve as the membership
expands, perhaps one can argue that there is a justification from purpose for
limited protection of socio-economic goods under the Convention. There is,

17
European Movement, European Convention on Human Rights, ING/5/E/R (1949), pro-
posed Article 1(k) as cited in Bates, The Evolution of the European Convention on Human
Rights (Oxford University Press, 2010), 56.
18
Ibid., proposed Article 1(i).
19
Akandji-Kombe, Positive Obligations under the European Convention on Human Rights
(Council of Europe, 2007); Mowbray, The Development of Positive Obligations under the Euro-
pean Convention on Human Rights by the European Court of Human Rights (Hart Publishing
2004); Dickson, ‘Positive Obligations and the European Court of Human Rights’ (2010) 61
Northern Ireland Legal Quarterly 203.
20
O’Cinnéide, ‘European Social Constitutionalism’, available at https://ssrn.com/
abstract=2921173.
21
Preamble, ECHR.
152  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

in other words, at least an argument that the purpose of the Convention now
may be more than simply to protect against tyranny and oppression, but in
fact to support human flourishing through the protection of rights. Were such
an argument to be considered compelling, the purpose of the Convention
now might be said to include enabling people to make legal claims for socio-
economic goods on the state where these are needed to give effect to the rights
protected within the text of the Convention.
This argument potentially stumbles on the fact that the broader systems of
rights protection of which the Convention is a part – the human rights system
of the Council of Europe – has developed a parallel mechanism for the pro-
tection of socio-economic rights. In 1961 the European Social Charter was
introduced to protect socio-economic rights within the Council of Europe
system. A system of government reporting was established;22 this was to be the
main enforcement mechanism and there was no way to bring complaints of a
breach of the Charter to the ECtHR (although of course the Court could, and
increasingly does, refer to the Charter in its case law just as it does to other
international instruments23). The two systems – Convention and Charter – are
separate, with the Charter’s enforcement and implementation being overseen
primarily by a committee of experts now known as the European Committee
on Social Rights. Since 1995, the reporting process has been complemented by
a system of collective complaints,24 seemingly motivated by a desire to include
more actors in the process of assessing compliance with the Charter and,
thereby, increasing the rigour and effectiveness of the enforcement machin-
ery.25 Unlike the Court, the Committee applying the Charter has been able
to establish and attempt to enforce substantive socio-economic rights, such
as the right to social assistance (protected by Article 13(1) of the Charter),
even in the face of a state’s claims that it enjoys a wide margin of appreciation
in devising and applying conditions for accessing such assistance.26 Whilst the

22
Pursuant to Article 21 of the European Social Charter the Contracting Parties are obliged to
send to the Secretary General of the Council of Europe a report at two-yearly intervals, con-
cerning the application of such provisions of Part II of the Charter as they have accepted.
23
Demir and Baykara v Turkey [GC], no. 34503/97, ECHR 2008, paras 45, 49, 50; Konstan-
tin Markin v Russia [GC], no. 30078/06, ECHR 2012, para. 55.
24
According to Article 1 of the Additional Protocol to the European Social Charter Providing
for a System of Collective Complaints the Contracting Parties recognise the right of the fol-
lowing organisations to submit complaints alleging unsatisfactory application of the Charter: a)
international organisations of employers and trade unions; b) other international nongovern-
mental organisations which have consultative status with the Council of Europe and have been
put on a list established for this purpose by the Governmental Committee; c) representative
national organisations of employers and trade unions within the jurisdiction of the Contracting
Party against which they have lodged a complaint.
25
See Churchill and Khaliq, ‘Violations of Economic, Social and Cultural Rights: The Current
Use and Future Potential of the Collective Complaints Mechanism of the European Social
Charter’ in Baderin and McCorquodale (eds), Economic, Social and Cultural Rights in Action
(Oxford University Press, 2007), 200–201.
 153
Socio-Economic Rights and the European Convention on Human Rights  

existence of the Charter and its associated enforcement mechanisms may not
convincingly ground an argument that socio-economic rights are adequately
protected by another process and thus do not need to be protected through
the Convention, it does lend some weight to the argument that the Conven-
tion neither expressly nor impliedly protects those rights, and that extending
its scope to offer such protection is illegitimate.
There are further, doctrinal concerns, with extending the Convention’s pro-
tection to socio-economic rights. The first, expressed well by Warbrick some
years ago, is that the fact such rights are not protected within the text of the
Convention may mean that a ‘political right not to have destitution thrust
upon one by the state’ may become conflated with the legal socio-economic
right to social support in a way that ‘might lead to setting the bar so low that
the economic or social rights lose all its useful purchase’.27 This is, in effect,
an argument that the socio-economic right suffers or is somehow denuded
by being reshaped into a civil and political right under the Convention; an
argument that has doctrinal attraction but which might seem less attractive
to practitioners, advocacy groups, and individuals and communities interested
in finding practical ways to enforce their (political and legal) socio-economic
claims and rights against the state.
A related doctrinal concern is that by using civil and political rights under
the Convention to protect socio-economic rights in practical terms, the civil
and political rights may suffer; they might become ‘degraded’.
This is a complex claim that, when disaggregated, has many layers to it and
certainly can be related to the broader, theoretical claim that is still sometimes
made that socio-economic rights are substantively different to civil and polit-
ical rights, are not (or should not be) justiciable, and drag courts into inap-
propriate areas of activity such as resource allocation.28 We do not need to
rehearse these broader arguments here, or indeed the many rebuttals to them,
but they do provide an important backdrop as they reflect an intuition on the
part of some that socio-economic rights are less legally important than civil and
political rights. Moving on from that contextual note, let us examine some of
the jurisprudence under Article 3 of the ECHR to explore the concern that
socio-economic protection under this provision may be damaging to the norm.
Article 3 provides

No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.

26
See, for example, European Roma Rights Centre v Bulgaria Complaint No. 48/2008 (Decision
31 March 2009) (The Collective Complaints Committee on European Social Charter).
27
Warbrick, ‘Economic and Social Interests and the European Interests and the European
Convention on Human Rights’ in Baderin and McCorquodale, Economic, Social and Cultural
Rights in Action (Oxford University Press, 2007), 256.
28
For a comprehensive account of the arguments on social rights per se see, e.g., Gearty and
Mantouvalou, Debating Social Rights (Hart Publishing, 2010).
154  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The core underpinning jurisprudential claims in the Article 3 cases are that
the negative right to be free from torture, inhuman and degrading treat-
ment or punishment is absolute, that no proportionality analysis is pro-
vided, that there is no defence to claims of interference, and that violations
of this right to be free form torture in particular carry a special stigma.29
The Court thus treats these violations as particularly serious, as do the Con-
tracting Parties and applicants to the Court. Partly as a result of this, the
Court will only find that the right to torture has been violated where a
minimum level of severity in ill-treatment has been reached, and findings
of inhuman or degrading treatment or punishment are also sparingly made.
However, Article 3 has proved to be fertile ground for the development of
socio-economic protection in the Court, perhaps counter-intuitively given
how difficult it is to meet the threshold requirement to establish a viola-
tion. However, the case law under Article 3 suggests that the Court has
recourse to it in respect of socio-economic provision only in very severe
circumstances.
This is well illustrated by M.S.S. v Belgium and Greece.30 This case con-
cerned the conditions of detention of asylum seekers in Greece – conditions
that the Court had already expressed concern in relation to.31 Belgium had
sent the applicant back to Greece on the basis that, as this was the first EU
country he entered, this was where his asylum application had to be pro-
cessed. However, in Greece M.S.S. had been detained in appalling condi-
tions, before living on the streets without receiving any social assistance
or material support from the state. Noting that human dignity is a foun-
dation of Convention rights, and refusing to accept that Greece’s strait-
ened economic conditions should be taken into account when considering
whether the treatment of asylum seekers violated Article 3, the Court held
that the lack of food, hygiene, a home and material resources which resulted
in M.S.S. living in extreme poverty was a violation of Article 3. As a member
of a vulnerable group (asylum seekers) the state’s positive obligations to
protect people from torture, inhuman and degrading treatment or punish-
ment under Article 3 extended to providing him with a home. Belgium was
also said to violate Article 3 by sending M.S.S. to Greece and thus exposing
him to these inhumane living conditions. Depending on the circumstances,
the Court held, a ‘serious deprivation of basic human needs’ may result in a
breach of Article 3.32

29
On Article 3 generally see, e.g., Mavronicola, ‘What is an “absolute right”? Deciphering
Absoluteness in the Context of Article 3 of the European Convention on Human Rights’
(2012) 12 Human Rights Law Review 723.
30
M.S.S. v Belgium and Greece [GC], no. 30696/09, ECHR 2011.
31
See, for example, S.D. v Greece, no. 53541/07, 11 June 2009; Tabesh v Greece, no. 8256/07,
26 November 2009; A.A. v Greece, no. 12186/08, 22 July 2010, para. 160.
32
M.S.S. v Belgium and Greece [GC], (above, n. 30), para. 252.
 155
Socio-Economic Rights and the European Convention on Human Rights  

These circumstances are important. The Court made it clear that whether
or not Article 3 had been violated was to be determined by reference to a six-
part test:

1. Was the person in a condition of particular severity, which meant that she
was unable to cater for his most basic needs?33
2. Was the person a member of a ‘particularly underprivileged and vulnera-
ble population group in need of special protection’?34
3. Was the person ‘wholly dependent on State support […] faced with offi-
cial indifference in a situation of serious deprivation?’35
4. Did the state take action (at its own initiative) to relieve these conditions
as appropriate to the state of vulnerability and insecurity of the person?36
5.  
Could the state have ‘substantially alleviated his suffering’ through
prompt action?37
6. Did the state ‘have due regard to the applicant’s vulnerability’?38

This is clearly a demanding test. It does not amount to a ‘right to a home’ in a

general sense – indeed, the Court expressly precluded giving any such meaning
to Article 3 or to the judgment. Instead it means that the state’s positive obli-
gations to protect against torture, inhuman and degrading treatment or pun-
ishment – long established in the case law of the Court – meant that, in certain
circumstances, Article 3 may require the provision of basic material necessities.
Furthermore, the Court placed great emphasis on the concept of vulnerability,
which it suggests herein relates to one’s membership of a group, as opposed
to a particular analysis of individual circumstances.39 Asylum seekers are, prima
facie, vulnerable, according to Judge Rozakis, and thus require an advanced
level of protection that enables them to claim material provision under Article
3, although there was not unanimity among the judges on that point.40
In extreme cases such as M.S.S., the protection of socio-economic rights
does not degrade the protection against torture per se under Article 3. The
threshold test applied is clearly a high one,41 and as Thornton notes the extent

33
Ibid., para. 254.
34
Ibid., para. 251.
35
Ibid., para. 253.
36
Ibid., para. 259.
37
Ibid., para. 262.
38
Ibid., para. 263.
39
Although see also Sufi and Elmi v the United Kingdom, nos 8319/07 and 11449/07, 28
June 2011, applying the vulnerability test from M.S.S. v Belgium and Greece [GC] (above,
n. 30).
40
See the opinion of Judge Sajó on this point. M.S.S. v Belgium and Greece [GC] (above,
n. 30), Partly Concurring and Partly Dissenting Opinion of Judge Sajó.
41
See also the admissibility decision in Budina v Russia (dec.), no. 45603/05, 18 June 2009.
156  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

of the lack of social supports that seems necessary to trigger an Article 3 obli-
gation is such that M.S.S. cannot be said to provide for a right to social protec-
tion per se, or even to indicate especially clearly the usefulness of Article 3 as a
vehicle for protection of socio-economic rights.42 The threshold – namely, one
of utter destitution resulting directly from state actions – is so high that most
situations of hunger, homelessness and material need simply would not meet
it notwithstanding the degradation often experienced in situations of extreme
poverty.
Instead, what M.S.S. suggests – and it is not the only case to do so – is that
the Convention might be used to require a state not to impose destitution or
socio-economic devastation upon someone (including by deporting them to a
state where their basic socio-economic needs, such as healthcare needs, would
not be met43), but not to require the state to materially support persons as a
matter of human rights law per se. If that truly is the extent of the protection
for socio-economic wellbeing under the Convention, one might argue that it
does not require too great a level of anxiety about undue expansionism into the
field of socio-economic rights protection by the Court.

Debate 2
Can the ECHR protect socio-economic wellbeing in a time
of austerity?
Realistically, many millions of people live in situations of socio-economic need
without reaching the threshold of destitution. In Europe, as elsewhere, some
dimensions of economic inequality with serious implications for the enjoy-
ment of civil and political rights are structural. By this we mean that this eco-
nomic inequality emerges not ‘merely’ from the individual circumstances of
the person in question, but also from a socio-political inequality of power that
marginalises certain groups and makes them more likely to experience eco-
nomic disempowerment compared with other sectors of the population. The
causes of such structural inequality are complex and often combine histor-
ical marginalisation with sexism, racism, disablism and other prejudices and
biases that permeate society resulting in disadvantage in social services, lack of
access to public services such as education or healthcare, and entrenched ine-
quality in labour markets. Asylum seekers, children, women, older people, ill
people, people with disabilities, and ethnic and religious minorities are among
those most likely to experience structural inequality and, at the same time, least
able to access political power in order to attempt to address it. For marginal-
ised groups, then, litigation and the law are often important avenues towards

42
Thornton, ‘European Convention on Human Rights: A Socio-Economic Rights Charter?’ in
Egan, Thornton and Walsh (eds), Ireland and the European Convention on Human Rights: 60
Years and Beyond (Bloomsbury, 2014).
43
See D. v United Kingdom (above, n. 10), Sufi and Elmi v United Kingdom (above, n. 39).
 157
Socio-Economic Rights and the European Convention on Human Rights  

attempting to address material conditions of inequality that undermine them

in attempting fully to enjoy and exercise their human rights in the civil and
political sphere, even if courts may not always be well equipped – or judiciar-
ies especially prepared – to intrude too far into what is sometimes seen as the
primarily political domain of resource allocation and the distribution of socio-
economic goods.
Deep-seated inequalities have not been eradicated within the Council of
Europe and, indeed, have arguably been exacerbated in the past decade. The
Global Financial Crises of the late 2000s ushered in a period of structured and
severe ‘austerity’ across Europe, and particularly in countries (such as Greece,
Portugal and Spain) that had been ‘bailed out’ by the International Mone-
tary Fund, the European Central Bank, and the European Commission (i.e.
‘the Troika’). These austerity programmes raised severe concerns in respect of
socio-economic rights; they brought about serious decreases in welfare pay-
ments and social protection, often resulted in the dramatic reduction of availa-
ble public health and educational facilities, and had especially serious negative
implications for people and groups already economically disadvantaged primar-
ily because the bail outs were conditional on substantial fiscal adjustments in
the ‘saved’ countries; adjustments that, in the case of Greece, for example, were
said to have brought about ‘a welfare state retrenchment unprecedented in the
post-war period’.44 Austerity has had significant negative impacts on the enjoy-
ment of social and economic rights, not only in countries that were ‘bailed out’
but also in other Council of Europe states that have introduced reductions in
social protection (or ‘welfare’) in order to ‘balance the books’.45
One may argue that the ECHR offers an important avenue to try to address
the socio-political structures that underpin inequality. A key barrier, of course,
is the fact that the Convention does not protect socio-economic rights per se,
as we have already outlined in Debate 1. Notwithstanding that, in some cases
ECHR litigation has successfully been used in the attempt to construct rights-
based resistance to austerity. Similarly to the Article 3 cases considered above,
however, it would appear that a particularly high threshold of socio-economic
deprivation must be met in order for the Court to intervene. This is well illus-
trated by Nencheva and Others v Bulgaria.46
The applicants’ children were profoundly disabled and resided in a state
institution. However, austerity measures imposed by the government follow-
ing a recession in Bulgaria resulted in a situation where the institution could
not provide sufficient food, lighting, sanitation or medical treatment to these
children, who subsequently died. In this case, the municipal authorities and
those working within the institution in question had attempted to secure

44
Koukiadaki and Kretsos, ‘Opening Pandora’s Box: The Sovereign Debt Crisis and Labour
Market Regulation in Greece’ (2012) 41 Industrial Law Journal 276, 276–277.
45
On the impact of the Global Financial Crises on rights generally see, for example, Council of
Europe, Safeguarding Human Rights in Times of Economic Crisis (Council of Europe, 2013).
46
Nencheva and Others v Bulgaria, no. 48609/06, 18 June 2013.
158  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

further resources from the central state authorities, but were granted only very
limited additional funds. The applicants claimed that the failure properly to
resource the institution resulted in a violation of Article 2 in this case, i.e. the
right to life. The Court held that it did, but in so doing it repeatedly noted
the exceptional circumstances at play here: the state authorities were aware of
the ‘real and imminent risk’ of death,47 and failed adequately to respond in
order to protect the children’s right to life. This has clear parallels with cases
where the failure to respond to known situations of domestic and intimate vio-
lence resulted in the death of children,48 and is thus a significant acknowledge-
ment that protecting the right to life can be about ensuring adequate material
resources to prevent death, but only where the circumstances are truly excep-
tional. The threshold, again, is thus very high, and the consequences of failing
to meet it devastating.
Relevant too is the fact that these children were in the direct care of the
state.49 Compare this to situations where the state reduces salary or social secu-
rity payments, potentially leading to a failure to access food, shelter, electric-
ity, healthcare and so on for the people in receipt thereof. In these cases, much
of the case law has focused on Article 1 of Protocol 1: the right to the peace-
ful enjoyment of possessions. In Koufaki and Adedy v Greece,50 deemed inad-
missible in 2013, the Court noted that the reduction by 20 per cent in the
remuneration, benefits and pensions of public servants did not result in the
applicants being incapable of subsisting, and thus did not disproportionately
interfere with property rights; in a time of economic hardship such a reduc-
tion in the remuneration of public servants could be justified. This does not
mean that austerity measures can never be found to violate Article 1 of Proto-
col 1. In N.K.M. v Hungary, for example, the Court found a violation where
the government introduced a backdated tax of 98 per cent on severance pay
for civil servants beyond a certain threshold. Notwithstanding the fact that
the Court usually allows a wide margin of appreciation in matters of taxa-
tion, the applicant had completed 30 years as a civil servant, was deemed to
have ‘already earned’ her severance pay, and was now being asked to endure
what the Court considered to be an excessive burden of addressing Hunga-
ry’s poor economic situation.51 Tulkens has argued that this case is particu-
larly significant; for her it indicates that the Court is increasingly realising the
interdependence of socio-economic and civil and political rights.52 However,

47
Ibid., para. 121.
48
Opuz v Turkey, no. 33401/02, ECHR 2009.
49
Similar findings have been made in relation to the state’s obligation to ensure the provi-
sion of food, shelter, sanitation, medical treatment etc. for those in state detention. See, for
example, Ananyev and Others v Russia, nos 42525/07 and 60800/08, 10 January 2012.
50
Koufaki and Adedy v Greece, nos 57665/12 and 57657/12, 7 May 2013.
51
N.K.M. v Hungary, no. 66529/11, 14 May 2013.
52
Tulkens, ‘The European Convention on Human Rights and the Economic Crisis: the Issue
of Poverty’, EUI AEL; 2013/08; Distinguished Lectures of the Academy.
 159
Socio-Economic Rights and the European Convention on Human Rights  

protecting someone from a negative interference with already-owned prop-

erty is materially different, from the perspective of alleviating economic hard-
ship, from compelling the state to distribute its resources in a manner that
addresses socio-economic inequality.53 N.K.M. is, thus, a case that illustrates
the usefulness, but also the limitations, of ‘classical’ protections against nega-
tive interferences with property for attempting to address the societal impacts
of austerity.
Thus, whilst the Convention is useful in resisting austerity in situations of
extreme hardship, it does not seem especially likely that it can or will funda-
mentally reshape or determine the imposition of austere fiscal and economic
measures in times of recession in a rights-compliant manner. Instead, other
processes designed specifically to protect socio-economic rights may have to
be relied upon. In the Council of Europe context, of course, this points us
towards the Charter of Social Rights already considered in Debate 1. A short
detour to the Committee’s approach to austerity measures introduced as part
of the negotiated ‘bail out’ of Greece by the IMF, ECB and European Com-
mission illustrates the potential for these mechanisms more fully to appreciate
and address the socio-economic impact of austerity.54
General Federation of Employees of the National Electric Power Corpora-
tion (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions
(ADEDY) v Greece55 concerned a cut to the minimum wage for workers under
the age of 25. The claim was that this cut breached the right to fair remunera-
tion in Article 4(1) of the Charter, which provides:

With a view to ensuring the effective exercise of the right to a fair remuneration,
the Parties undertake: to recognise the right of workers to a remuneration such
as will give them and their families a decent standard of living.

The Committee found that the acceptability of the reduction in the minimum
wage for young people must be assessed by reference to proportionality, with
particular attention to whether there was an objective justification and whether
the measure was proportionate to achieving that. Here the extent of the reduc-
tion in the minimum wage was disproportionate to the objective (of getting
younger people into the labour market at a time of economic crisis) and,
regardless of the fact that such a reduction was required by the bail-out condi-
tions, violated the Charter rights of younger people. Let us imagine the poten-
tial outcome if the measure had been challenged before the ECtHR instead:

53
So too does it differ from requirements to transfer property in times of socio-political
transition, as illustrated in, for example, Jahn and Others v Germany [GC], nos 46720/99,
72203/01 and 72552/01, ECHR 2005-VI.
54
See also Federation of Employed Pensioners of Greece (IKA-ETAM) v Greece, Complaint
76/2011.
55
General Federation of Employees of the National Electric Power Corporation (GENOP-DEI)
and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v Greece, Complaint
66/2011.
160  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

it did not relate to already earned monies and so Article 1, Protocol 1 likely
would not have been violated,56 and it did not impose destitution on younger
people so that Articles 2 and 3 would likely not be considered to have been vio-
lated, not least because the Court would likely have demonstrated deference to
the means in which the state party was attempting to address an extremely poor
national economic situation. The Charter and the Committee supervising it
could, thus, recognise, address and attempt to remedy the rights-related impli-
cations of the imposed measures in a way that the Court applying the Conven-
tion likely would have struggled to do.
This raises important questions about the effectiveness of the Conven-
tion, which connect inevitably with the matter of ‘purpose’ already con-
sidered in Debate 1 and, indeed, in Chapter 1 of this book. Taking human
rights in the round, it is unquestionable, as Salomon has put it, that ‘the
governance of the [global financial] crises in the European Union has led
to massive violations of human rights’.57 Although those rights are primarily
socio-economic in nature, their violation, of course, has implications for civil
and political rights: for the ability to support one’s children and thus avoid
state intervention and keep one’s family together (enjoying Article 8 rights),
for the ability to access education (enjoying Article 2 Protocol 1 rights), for
the ability to access appropriate medical care and thus avoid death (enjoying
Article 2 rights), and so on. The divide between civil and political and social
and economic rights might be artificial in real terms, but it is nevertheless
reflected in international human rights law instruments. Within that frame-
work the ECtHR’s mandate is to protect civil and political rights as outlined
in the Convention. As a result, socio-economic rights can be protected only
when there is a clear connection to the enjoyment of those rights. Thus,
whilst the Court and Convention can be used to try to prevent some rights
violations flowing from austerity measures, they seem ill-equipped effec-
tively to address austerity and its exacerbation of socio-economic ­inequality
per se.
Whether this points to the ineffectiveness of the Convention system relates
to one’s perspective on its purpose. If it is, still, a mechanism for protecting
against tyranny and oppression (understood within a capitalist paradigm that
does not recognise extreme economic hardship and structural inequality as a
form of oppression) then this is no indictment of the Convention system per
se. However, if the purpose of human rights is to enable human flourishing as
the lifeblood of democracy and the rule of law, which in turn are core condi-
tions for peace, prosperity and stability across the region, one may well come
to a contrary conclusion.

56
Although cf. the Court’s case law on pensions: Lakićvić and Others v Montenegro and
Serbia, nos 27458/06, 37205/06, 37207/06 and 33604/07, 13 December 2011; Gaygusuz
v Austria, 16 September 1996, Reports of Judgments and Decisions 1996-IV; Wieczorek v
Poland, no. 18176/05, 8 December 2009.
57
Salomon, ‘Of Austerity, Human Rights and International Institutions’ (2015) 21 European
Law Journal 521, 522.
 161
Socio-Economic Rights and the European Convention on Human Rights  

Debate 3
Can the right to non-discrimination promote socio-economic
equality?
In many ways, the debates that we have outlined already in this chapter point
to a broader contestation not only about the Convention but about human
rights law generally, which was hinted at in the preceding paragraph: what is
human rights law for? Conventionally, it was considered as a means of limiting
state power in order to protect those within states’ jurisdiction from repression,
oppression and violation of classical civil liberties. Whilst the broader literature
on and international legal instruments of human rights law have moved on from
that relatively limited, but nevertheless important, conception of the purpose of
human rights law to at least some extent, the ECHR remains a classically con-
structed civil and political rights instrument reflecting this conception of the
purposes of human rights law per se. Bearing that in mind, it is perhaps unsur-
prising that the original Convention text did not include any right to equality
or even any general, standalone right to non-discrimination, but rather merely
provided in Article 14 for what McCrudden calls the non-discriminatory ‘distri-
bution of the other human rights protected by the ECHR’.58 Article 14 states:

The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, lan-
guage, religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.

Whilst the list of grounds is somewhat outmoded, the Court has stressed that
it is not exhaustive (‘such as … ’ and ‘other status’), but is rather illustrative.59
The Court has thus used Article 14 to consider discrimination claims in relation
to sexual orientation,60 health,61 age,62 ‘illegitimacy’,63 disability64 and more.
Article 14 creates a right to non-discrimination in the enjoyment of other
Convention rights and not a right to non-discrimination per se. Recognising
this, Protocol 12 was introduced in 2000. This provides:

The enjoyment of any right set forth by law shall be secured without discrimi-
nation on any ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national minority,
property, birth or other status. No one shall be discriminated against by any
public authority.

58
McCrudden, ‘Equality and Non-Discrimination’ in Feldman (ed.), English Public Law
(Oxford University Press, 2004), para. 11.86.
59
Salgueiro da Silva Mouta v Portugal, no. 33290/96, ECHR 1999-IX.
60
Ibid.
61
Kiyutin v Russia, no. 2700/10, ECHR 2011.
62
Schwizgebel v Switzerland, no. 25762/07, ECHR 2010.
63
Inze v Austria, 28 October 1987, Series A no. 126.
64
Glor v Switzerland, no. 13444/04, ECHR 2009, para. 80.
162  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

However, Protocol 12 has not been ratified by all of the member states;
indeed, at the time of writing (May 2017) nine Contracting Parties (Bulgaria,
Denmark, France, Lithuania, Monaco, Poland, Sweden, Switzerland and the
United Kingdom) had not even signed it, and only 20 had ratified it.
The Debate with which we close this chapter, then, is as to whether the right
to non-discrimination as protected in the ECHR can promote socio-economic
equality.
It is important at the outset to acknowledge the general shortcomings of
non-discrimination as a vehicle to achieving equality. It is widely recognised
in much of the equality and non-discrimination literature that a right not to
be differently treated is not the same as a right to be equally treated, particu-
larly as non-discrimination requires nothing more than treating similar cases
alike, whereas equality may require more. Non-discrimination thus accords far
more with what is termed ‘formal equality’ than it does ‘substantive equality’.
Formal equality concerns itself with consistency of treatment; as Barnard and
Hepple put it, it ‘embodies a notion of procedural justice which does not guar-
antee any particular outcome’.65 Whilst formal equality might be helpful to
ensure that, for example, women and men are paid the same salaries for com-
parable work, it does nothing to address inequalities of opportunity that may
mean that women are far more likely to be in lower paid work types than men,
or the capacity of ‘the market’ to pay people for their work at a rate that is too
low for one to live on. In other words, formal equality works within existing
economic, political, legal and social structures, but cannot address the inequal-
ities that those structures produce, reflect and perpetuate. Substantive equality,
on the other hand, recognises and attempts to address these structures and has,
Fredman argues, four key aims: redistribution, recognition, participation and
transformation.66 The two, then, are clearly vastly different things.
If the right to non-discrimination within the Convention – either in Article
14 or in the standalone Protocol 12 form – reflects this formal conception of
equality then it seems unlikely to be able to promote socio-economic equal-
ity even if the Convention protects socio-economic rights which, as we have
already seen, it might be said to do only in a very limited sense (if at all).
The earlier jurisprudence on Article 14 certainly suggests its interpretation and
application as an instrument of formal equality, resulting in what O’Connell
calls the ‘failure of the Strasbourg Court to promote a substantive concep-
tion of equality which would address questions of systematic disadvantage and
oppression’.67 Indeed, whilst this criticism is directed at the cases in which

65
Barnard and Hepple, ‘Substantive Equality’ (2000) 59 Cambridge Law Journal 562, 563.
66
Fredman, ‘Substantive Equality Revisited’ (2016) 14 International Journal of Constitutional
Law 712; see also Fredman, ‘Providing Equality; Substantive Equality and the Positive Duty to
Provide Resources’ (2005) 21 South African Journal on Human Rights 163, 167.
67
O’Connell, ‘Cinderella comes to Ball: Article 14 and the right to non-discrimination in the
ECHR’ (2009) 29 Legal Studies 211, 212.
 163
Socio-Economic Rights and the European Convention on Human Rights  

Article 14 was used by the Court, it is important to note that there were many
cases in which Article 14 was pleaded but where the Court made its decision
solely on the basis of other Articles,68 such as Sander v the United Kingdom69 in
which a violation of Article 6 was found in respect of racist comments by jury
members, but in which Article 14 is hardly discussed at all.70
Given the structure of Article 14, it is clear that any attempt to establish
impermissible discrimination must first satisfy the Court that the behaviour
complained of falls into the ‘ambit’ of another Convention right. In many
cases, the Court has given scant, if any, attention to the ambit requirement,
albeit largely by dealing with the complaint under another Article altogether.
For example, in gay rights cases the Court has primarily considered the claims
under Article 8 alone, and not as discrimination under Article 14 taken in con-
junction with Article 8.71 Although this might be said to sidestep the prima
facie restrictiveness of the ambit requirement, it remains challenging to address
socio-economic inequality by using this approach, not least because the Court
is largely limited to considering socio-economic matters within the context of
expressly protected civil and political rights. However, the Court has shown
significant creativity in bringing socio-economic matters within the ambit of
rights, even finding that welfare payments can fall within the ambit of Article 1
of Protocol 1 notwithstanding its general position that money is not property.72
It has also been proactive in the context of employment, finding, for example,
that an employment ban might have an impact on the right to enjoyment of
private life under Article 8 because it removes the capacity to make a living.73
Importantly, there is no requirement that the ‘primary’ right be violated in
order for the Court to find that Article 14 has been violated;74 in other words,
even if the right to property is not violated, it might be discriminatorily applied
in a manner that violates Article 14. This principle of autonomy is critical to
the non-discrimination case law of the Court,75 not least because it allows for

68
For analysis see Harvey and Livingstone, ‘Protecting the Marginalised: The role of the
ECHR’ (2001) 51 Northern Ireland Legal Quarterly 445.
69
Sander v the United Kingdom, no. 34129/96, ECHR 2000-V.
70
For critique see Dembour, ‘Still Silencing the Racism Suffered by Migrants… The Limits of
Current Developments under Article 14 ECHR’ (2009) 11 European Journal of Migration
and Law 221.
71
See, for example, Lustig-Prean and Beckett v the United Kingdom, nos 31417/96 and
32377/96, 27 September 1999.
72
Gaygusuz v Austria (above, n. 56); Luczak v Poland, no. 77782/01, 27 November 2007
(but cf. Stec and Others v the United Kingdom [GC], nos 65731/01 and 65900/01, ECHR
2006-VI).
73
Sidabras and Džiautas v Lithuania, nos 55480/00 and 59330/00, ECHR 2004-VIII.
74
This was not always the case; earlier case law required a breach of the original right (making
an Article 14 analysis somewhat unnecessary); see Fredman, ‘Emerging from the Shadows’,
(above, n. 4).
75
Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in
Belgium’ (merits), 23 July 1968, Series A no. 6.
164  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

the Court to bring socio-economic matters within the ‘ambit’ of a Convention

right for the purposes of Article 14 with relatively little attendant risk of alle-
gations of illegitimacy.76
Finding that alleged discrimination falls within the ambit of the rights pro-
tected by the Convention is only the first step of the test of discriminatory
treatment used by the Court. After finding that the treatment complained of
falls within the ambit of a Convention right, the Court considers whether there
is indeed a difference in treatment, and then whether there is an objective and
reasonable justification for such difference. For some time, the Court took
a relatively conservative approach to this latter question, focusing largely on
whether differences in treatment could be justified through the application of
a proportionality test:77 a classically ‘formal’ approach to equality. However,
in recent years some scholars have discerned important shifts in the Court’s
approach, even to the extent that, Fredman argues, ‘recent jurisprudence […]
contains many glimmers of substantive equality’.78 Fredman finds this not only
in what she called the ‘elasticity of grounds’ (i.e. the Court’s willingness to
recognise non-articulated grounds of discrimination considered above), but
also in the gradual move away from focusing exclusively on a formal assess-
ment of whether treatment was ‘equal’. In Thlimmenos the Court found that
excluding all those with criminal convictions from admission to the profession
of accountant discriminated against those, like the applicants, whose criminal
convictions related to conscientious objection (in this case to military service,
ground in religious belief). The Court thus accepted that discrimination could
arise where ‘States without an objective and reasonable justification fail to treat
differently persons whose situations are significantly different’.79 In D.H. v
Czech Republic the Court then established the important principle that indi-
rect discrimination could violate Article 14, so that ‘a difference in treatment
may take the form of disproportionately prejudicial effects of a general policy
or measure which, though couched in neutral terms, discriminates against a
group’,80 even if that was not its intent.81
Whilst Article 14, then, has its limitations – not least its ‘ambit’ ­requirement –
it clearly has the capacity to be deployed in a manner that tackles serious
socio-economic inequalities where they relate to the exercise of Convention rights.
On the face of it Protocol 12’s protection against discrimination should
offer a greater scope for transformative change. Like Article 14 it lists indicative

76
On ambit and its connection to autonomy see Baker, ‘The Enjoyment of Rights and
Freedoms: A New Conception of the “Ambit” under Article 14 ECHR’ (2006) 69 Modern
Law Review 714.
77
Belgian Linguistic Case (above, n. 75); Abdulaziz, Cabales and Balkandali v the United
Kingdom, 28 May 1985, Series A no. 94.
78
Fredman, ‘Emerging from the Shadows’ (above, n. 4), 274.
79
Thlimmenos v Greece [GC], no. 34369/97, ECHR 2000-IV, para. 44.
80
D.H. and Others v the Czech Republic [GC], no. 57325/00, ECHR 2007-IV, para. 184.
81
Oršuš and Others v Croatia [GC], no. 15766/03, ECHR 2010, para. 150.
 165
Socio-Economic Rights and the European Convention on Human Rights  

and non-exhaustive grounds, and it can be deployed in respect of any right

‘set forth by law’ including socio-economic rights protected in domestic law.
However, thus far Protocol 12 has attracted ratification from less than half of
the Contracting Parties and has not been widely used. Indeed, there are fewer
than 10 judgments in which Protocol 12 features.
The first case in which it was used was a Grand Chamber judgment in Sejdić
and Finci v Bosnia and Herzegovina.82 Part of this judgment was concerned
with the fact that in Bosnia only people who declared themselves as Bosniacs,
Croats and Serbs can run for the presidency; the applicants were none of these.
As the right to free elections in Article 3 of Protocol 1 does not cover pres-
idential elections, Article 14 was inapplicable, but Bosnia and Herzegovina
had ratified Protocol 12. The Court found a violation of Article 1 of Proto-
col 12 since the applicants who were of Roma and Jewish origin respectively
could not run for these posts. In doing so, the Court held that the meaning
of discrimination under Protocol 12 was the same as under Article 14, so
that justification for differences in treatment were possible. However, in this
case no sufficiently robust justification for the difference in treatment between
the applicants existed. Accordingly, the right to non-discrimination had been
violated.
The majority of cases the Court dealt with in relation to Protocol 12 are
the follow-up cases from Sejdić and Finci,83 and the fact that Protocol 12 is
not considered where the application can be decided under Article 1484 (com-
bined with the relatively low number of ratifications) means that the case law
is scarce. However, even as the case law under Protocol 12 expands, this will
simply expand the Court’s approach to discrimination under Article 14 to all
legally protected rights, and not only Convention rights. Thus, the capacity of
the Convention to progress socio-economic equality in Europe will depend
on the extent to which the germs of substantive equality discernible in more
recent jurisprudence are developed in the future.
Even then, however, the success of the Convention in advancing socio-
economic equality in Europe will inevitably be limited by the rights to which
the Contracting Parties afford protection in law. Article 14 will continue to be
‘parasitic’ on the Convention rights, Article 1 of Protocol 12 on rights pro-
tected in law by the states. Arguably, this is the only feasible way to achieve
a balance between the clear connection between socio-economic inequality,
human flourishing, and ability to access and enjoy civil and political rights on
the one hand, and the textual and historical limitations of the ECHR on the
other.

82
Sejdić and Finci v Bosnia and Herzegovina [GC], nos 27996/06 and 34836/06, ECHR
2009.
83
See Pilav v Bosnia and Herzegovina, no. 41939/07, 9 June 2016; Zornić v Bosnia and Her-
zegovina, no. 3681/06, 15 July 2014.
84
Sejdić and Finci v Bosnia and Herzegovina (above, n. 82), para. 51.
166  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Conclusion
The classical division between socio-economic rights and civil and political
rights is artificial. The relationships between these bodies of rights are complex
but clear, and it is through recognising these relationships that the ECtHR has
managed to develop a jurisprudence that is concerned with conditions of mate-
rial wellbeing. However, the Court is unquestionably limited to some extent
by the text of the Convention, which is largely concerned with civil and polit-
ical rights, whilst the Social Charter and its Committee have a clearer focus on
socio-economic rights. These limitations have meant that the Court has exer-
cised caution in addressing socio-economic wellbeing, tending, for example, to
require extreme deprivation before intervening. The inadequacy of this from
the perspective of socio-economic rights per se is clear, but it is arguable that
developing the Convention further would so far exceed the apparent intended
scope of the Convention as to wander into the territory of illegitimacy.

Further Reading
Fredman, ‘Emerging from the Shadows: Substantive Equality and Article 14 of the
European Convention on Human Rights’ (2016) 16 Human Rights Law Review
273.
Mowbray, The Development of Positive Obligations under the European Convention on
Human Rights by the European Court of Human Rights (Hart Publishing, 2004).
Salomon, ‘Of Austerity, Human Rights and International Institutions’ (2015) 21
European Law Journal 521.
Thornton, ‘European Convention on Human Rights: A Socio-Economic Rights
Charter?’ in Egan, Thornton and Walsh (eds), Ireland and the European Convention
on Human Rights: 60 Years and Beyond (Bloomsbury, 2014).
 CHAPTER 8

Implementing the Convention: The Execution

of ECtHR Judgments

Throughout this book so far we have undertaken a number of debates about

particular approaches to interpretation and application of the European Con-
vention on Human Rights (ECHR or Convention). However, we have largely
left unconsidered whether the Convention really ‘works’ as a framework for
the protection of rights; whether it is effective. This question is complex. It
relates to a whole host of different sub-issues, including the extent to which
national parliaments take account of the Convention, whether it is integrated
into policy-making processes and so on. In this chapter, we look critically at the
implementation of the jurisprudence of the European Court of Human Rights
(ECtHR or Court), engaging in a number of debates that are fundamentally
concerned with what the ‘real world’ impact of the decisions of the ECtHR is
within the Contracting Parties.
This requires engagement with a number of different issues. First, we must
consider the capacity of the Court to order remedies in situations where a
breach of the Convention is found. To that end, Debate 1 asks what reme-
dies the Court can order. This is more than a simple doctrinal or formal ques-
tion. As will become clear within our consideration of that debate, over the
years the Court has evolved its remedial capacities from merely ordering just
satisfaction (the payment of monies to successful applicants) and leaving the
task of dealing with the reasons of such violations to the states’ discretion,
to sometimes clearly stating the actions that are expected from respondent
states.
This active approach to the development of remedies in the Court goes
fundamentally to the question of whether, and if so how, the Court can
effectively address rights violations by the Contracting Parties, and indeed
how far the Court should go in developing mechanisms to make its own
judgments more effective. There is a clear international legal obligation on
a respondent state to execute the judgment of the Court and implement
the remedies as ordered (Article 46). However, in Debate 2 we go beyond
this purely doctrinal legal obligation to explore broader and more conten-
tious questions of states’ resistance to execution of ECtHR judgments.
167
  
168  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

What are the arguments put by states when they are not inclined to abide
by the legal obligation in Article 46, and how might these arguments be
addressed?
Moving beyond the strictly doctrinal question of whether states are legally
obliged to execute the judgments of the Court is important for two reasons.
The first, which we consider in Debate 2, is that it is increasingly clear that
the ‘mere’ fact of legal obligation is not sufficient, at this time, to compel
some states to remedial action. Instead, at least some Contracting Parties to
the Convention resist execution on the basis of, for example, resource con-
straints, alleged incompatibility with domestic law, or arguments of the demo-
cratic illegitimacy of the ECtHR when considered alongside domestic political
and legal institutions. Developing convincing arguments in response to such
recalcitrance is clearly fundamental to the future effectiveness of the Conven-
tion. The second reason why it is important to develop arguments in favour of
the implementation of the Court’s judgments that go beyond bald statements
of legal obligation is reflected in Debate 3.
In this debate, we consider whether non-respondent states should give
effect to ECtHR judgments. Although non-respondent states are not legally
‘bound’ by the ECtHR’s judgments, the effective implementation of the Con-
vention is best achieved through the Contracting Parties taking steps to ensure
compliance with the Convention before the point is reached where litigation
in Strasbourg is required. It is thus important to consider whether, and if so
why, states ought to give effect to these judgments, even if they are not strictly
obliged to do so.

Debate 1
What remedies can the Court order?
At the start of its operation, the ECtHR issued only declaratory judgments,
meaning that if the Court had found a violation of the Convention it would
not prescribe the exact measures that the Contracting Parties should under-
take in order to ensure compliance with the Convention. Although the judg-
ments of the Court are binding on the Contracting Parties under Article 46,
this approach meant that the Court would avoid interfering with (or being
accused of interfering with) the sovereignty of the Contracting Parties by dic-
tating the mode of execution of a particular judgment. The Committee of
Ministers would then decide whether the measures adopted by the respond-
ent state were sufficient to implement the judgment. In recent years, the Court
has become more prescriptive about the measures a respondent state needs to
undertake to comply with the Convention. Before we consider the evolution
of the Court’s attitude to remedies, we first look into what remedies are avail-
able to the Court.
These remedies are known as individual and general measures, and it is
assumed that the states will react to an adverse judgment by instigating such
measures to address the violation that has been identified. Usually the Court
 169
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

does not actually specify these measures beyond financial remedy (i.e. just sat-
isfaction), but leaves it to the states and Committee of Ministers to work out
the means of execution. In Marckx v Belgium (see Chapter 4), for example, the
Court stated that ‘the Court’s judgment is essentially declaratory and leaves to
the State the choice of the means to be utilised in its domestic legal system for
performance of its obligation’.1 Moreover, the Court considered inadmissible
attempts by previously successful applicants to claim a violation of the Con-
vention for non-implementation of a previous judgment. Over recent years,
however, the Court has begun to specify the measures to be taken in at least
some cases.
Individual measures normally include just satisfaction that has to be paid to
the applicant to cover her pecuniary and/or non-pecuniary damages. Just sat-
isfaction is governed by Article 41 of the Convention, which states that if the
Court finds that there has been a violation of the ECHR, and if the internal law
of the Contracting Party concerned allows only partial reparation to be made,
the Court shall, if necessary, afford just satisfaction to the injured party. Thus,
Article 41 seems to require that the national law of the Contracting Party
would not sufficiently provide for compensation, and, second, that compensa-
tion would be necessary before just satisfaction could be awarded.
The Court originally stuck firmly to the principle that both of these require-
ments would have to be fulfilled, and often the Court would deliver a sepa-
rate judgment on the matter. In more recent cases, however, the ECtHR tends
simply to include its analysis of the award of just satisfaction in the final para-
graphs of the operative part of the judgment.2 Indeed, the award of just satis-
faction has become more or less standard, with very little attention being given
to the apparent requirements of Article 41.3
This raises a serious question about whether it is appropriate for the Court
to award such compensation almost automatically and without carefully con-
sidering the constraints enshrined in Article 41. This debate is of importance
beyond the seemingly simple question of adherence to Article 41; the ECtHR
was not created to replace national mechanisms for compensation but to be
subsidiary to them, so that its function should be about articulating and apply-
ing the Convention standards, rather than awarding monetary compensa-
tion per se. This is not least because the Convention will be most effective
if an adverse finding in Strasbourg results in a change to state practice, and
not merely the payment of monetary compensation, as states have sometimes
argued is the extent of their remedial obligation.4

1
Marckx v Belgium, 13 June 1979, Series A no. 31, para. 58.
2
See, as one example of many, Ananyev v Russia, no. 20292/04, 30 July 2009, para. 64.
3
Compare, for example, the Court’s handling of just satisfaction in De Wilde, Ooms and Versyp
v Belgium (Article 50), 10 March 1972, Series A no. 14 and Manerov v Russia, no. 49848/10,
5 January 2016.
4
See Dzehtsiarou and Greene, ‘Legitimacy and the Future of the European Court of Human
Rights: Critical Perspectives from Academia and Practitioners’ (2011) 12 German Law Journal
1707, 1709.
170  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

This is not to suggest that the payment of monetary compensation is unim-

portant; for many, access to the ECtHR may be their last chance of recognition
of rights violation and the payment of appropriate compensation following a
lack of success in the domestic legal system. Moreover, routine findings of vio-
lations and awards of just satisfaction may create an extra incentive for the Con-
tracting Party to initiate some fundamental reforms in order to avoid repeatedly
being brought to Strasbourg. Since the Court has relatively few tools of imple-
mentation in its arsenal, just satisfaction in the form of monetary compensa-
tion may, in some cases, act as a sufficient incentive for implementation of the
judgment and better compliance with the Convention. To some extent, this is
likely to depend on the context in which the state is engaging with the Court:
should the state not be minded, or able, to pay compensation or to engage
constructively with the Convention system, ‘simple’ monetary awards against
it are unlikely to nudge it towards rights adherence. Instead, the state may
simply refuse to pay, and thus not to execute the judgment. Indeed, this is what
Russia did in the case of OAO Neftyanaya Kompaniya Yukos v Russia,5 and
what Turkey did in the case of Cyprus v Turkey;6 both highly sensitive decisions
in their domestic political contexts.
Having said that, just satisfaction is in fact the least contentious of the reme-
dies the Court might order in a case of violation of the ECHR. In the vast major-
ity of cases, the Contracting Parties pay just satisfaction within three months
of the judgment becoming final. Another aspect of individual m ­ easures –
namely the precise actions that are required from the State in a particular
case – is much more contested.
We have already noted that only slightly over a decade ago the judgments of
the Court stopped being purely declaratory. Although the Court still delivers
declaratory judgments in most cases, there are some instances in which it artic-
ulates the measures it expects the respondent state to take in order effectively
to execute its judgments.7 One of the first judgments in which the Court took

5
OAO Neftyanaya Kompaniya Yukos v Russia, no. 14902/04, 20 September 2011. The
Constitutional Court of Russia declared this case unexecutable. See Judgment of 19 January
2017 No. 1-∏/2017 in the case concerning the resolution of the question of the possibility to
execute in accordance with the Constitution of the Russian Federation the Judgment of the
European Court of Human Rights of 31 July 2014 in the case of OAO Neftyanaya Kompaniya
Yukos v Russia in connection with the request of the Ministry of Justice of the Russian
Federation. A courtesy translation is available on the website of the Russian Constitutional
Court, available at http://www.ksrf.ru/en/Decision/Judgments/Documents/2017__
January_19_1-P.pdf.
6
Cyprus v Turkey (just satisfaction) [GC], no. 25781/94, ECHR 2014. The response of
Turkey: ‘Turkey won’t pay Cyprus despite decision in Strasbourg’, Deutsche Welle,
13 May 2014, available at http://www.dw.com/en/turkey-wont-pay-cyprus-despite-
decision-in-strasbourg/a-17631966.
7
On the prevalence and effect of specifying such measures see Mowbray, ‘An Examination of
the European Court of Human Rights’ Indication of Remedial Measures’ (2017) 17 Human
Rights Law Review 451.
 171
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

this approach was Assanidze v Georgia. In this case, Georgian authorities had
illegally detained the applicant in violation of Article 5 of the Convention, in
respect of which the Court held:

As regards the measures which the Georgian State must take, subject to supervi-
sion by the Committee of Ministers, in order to put an end to the violation that
has been found, the Court reiterates that its judgments are essentially declar-
atory in nature and that, in general, it is primarily for the State concerned to
choose the means to be used in its domestic legal order in order to discharge its
legal obligation under Article 46 of the Convention, provided that such means
are compatible with the conclusions set out in the Court's judgment. This dis-
cretion as to the manner of execution of a judgment reflects the freedom of
choice attached to the primary obligation of the Contracting States under the
Convention to secure the rights and freedoms guaranteed. However, by its very
nature, the violation found in the instant case does not leave any real choice as
to the measures required to remedy it.8

The case of Oleksandr Volkov v Ukraine is an example of an even more direc-

tive approach to individual measures by the Court. The case concerned the
irregular dismissal of a member of the Supreme Court of Ukraine, in respect of
whom the Court held that it

cannot accept that the applicant should be left in a state of uncertainty as regards
the way in which his rights should be restored. The Court considers that by its
very nature the situation found to exist in the instant case does not leave any real
choice as to the individual measures required to remedy the violations of the
applicant’s Convention rights. Having regard to the very exceptional circum-
stances of the case and the urgent need to put an end to the violations of Arti-
cles 6 and 8 of the Convention, the Court holds that the respondent State shall
secure the applicant’s reinstatement to the post of judge of the Supreme Court
at the earliest possible date.9

Both of these cases illustrate the Court’s development – on its own initiative –
of a far more assertive role in, and more directed approach to, remedies for
violation of the Convention. Whilst this might be attributed to a concern with
the number of clear violations coming before the Court, and unenthusiastic or
incomplete execution of judgments, there are clear questions about the legiti-
macy and potential impacts of the Court having developed individual measures
of this kind. One might question the Court’s authority in this relation; there is
no clear textual mandate within the Convention for instructing states to take
such measures and, as a subsidiary international court, it might be considered
that its role is to identify violations and then leave it to domestic authorities
to determine how (although not whether) to address them through execution

8
Assanidze v Georgia [GC], no. 71503/01, ECHR 2004-II, para. 202.
9
Oleksandr Volkov v Ukraine, no. 21722/11, ECHR 2013, para. 208.
172  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

of the ECtHR’s judgment. On the other hand, one might argue that reme-
dial innovation of this kind is a logical development of the Court’s jurisdiction
over individual complaints, which was originally optional but has now devel-
oped into a cornerstone of the Convention system. Without the potential to
direct individual measures to remedy the identified rights violations in a par-
ticular case, one might question the usefulness of the Court per se. Further-
more, the Court had earlier been criticised for its lack of willingness to identify
specific remedies, which some considered to be an impediment to the effective
execution of its judgments.10 The Court, thus, began to develop its more spe-
cific remedial approach, moving away (in large part) from providing primarily
declaratory relief.11
General measures ‘adopted […] [to] prevent […] new violations similar to
that or those found or [to] put […] an end to continuing violations’12 require
substantial and sometimes systemic change in domestic law, and are perhaps
unsurprisingly, thus, sometimes met with considerable controversy. In some
cases, the Court only required general measures for execution of the judgment.
For instance, in the case of Hirst (no. 2) (see Chapter 2) the Court found
that the blanket disenfranchisement of prisoners in the UK violates the Con-
vention13 and that a change of law on prisoner disenfranchisement (a general
measure) is required for UK law to comply with the Convention.
For some, the development and deployment of explicit references to general
measures in the Court’s judgments in recent years illustrates its increasing will-
ingness to be ‘active’ (or some might say ‘activist’) in response to structural
problems in human rights protection in a particular country. Indeed, the devel-
opment of pilot judgments also suggests that the Court is trying to find ways to
address broader human rights challenges in the Contracting Parties.
Rule 61 of the Rules of Court provides that the Court may initiate a
pilot-judgment procedure and adopt a pilot judgment where the facts of an
application reveal the existence of a structural or systemic problem or other
similar dysfunction in the Contracting Party which has given rise or may give
rise to similar applications. Rule 61 also establishes that the Court should, in its
pilot judgment, identify both the nature of the structural or systemic problem
or other dysfunction as established, and the type of remedial measures which
the Contracting Party concerned is required to take at the domestic level to
address it. The Court can also set a deadline for the implementation of its pro-
posed reforms. This development, initiated by the Court, is important but does

10
European Commission for Democracy Through Law (Venice Commission), Opinion on the
Implementation of the Judgments of the European Court of Human Rights, Op. No. 209/2002
(Dec. 2002).
11
See the analysis of this in Helfer, ‘Redesigning the European Court of Human Rights:
Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008)
19 European Journal of International Law 125.
12
Appendix 4 (Item 4.4), Rules of the Committee of Ministers for the Supervision of the Exe-
cution of Judgments and of the Terms of Friendly Settlements, Rule 6, Section 2.
13
Hirst v the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX.
 173
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

not completely strip the Contracting Parties of the power to frame its internal
policies. In pilot judgments, the Court does not specify in a detailed way the
shape that the proposed reform should take, and the respondent state retains
considerable discretion. The development of pilot judgments was a significant
step towards the Court’s attempt to ensure ‘embeddedness’ of the Convention
in domestic systems,14 but it is not without its risks. An obvious danger of the
pilot judgment procedure is that the Contracting Parties might not be willing
actively to engage with it; that the Court would outline a clear remedy but
find its judgment unexecuted, potentially calling its authority and effectiveness
into question. In truth, the pilot judgment procedure has been something of a
mixed bag in terms of success.
In Burdov v Russia (no. 2) the Court considered an issue of non-execution
of the enforceable judgments of national courts. Such non-execution violates
Article 6 of the Convention: the right to fair trial. The Court found that this was
a widespread problem, not limited to the case before it, and indicated general
measures that Russia should take to address it. In particular, the Court held that

the respondent State must introduce a remedy which secures genuinely effective
redress for the violations of the Convention on account of the State authorities’
prolonged failure to comply with judicial decisions delivered against the State
or its entities. Such a remedy must conform to the Convention principles as laid
down notably in the present judgment and be available within six months from
the date on which the present judgment becomes final.15

Russia requested the extension of the six-month term for execution, and after
about 12 months introduced a new law that provided a domestic remedy for
failure to execute the final judgments of domestic courts.16 The ECtHR has
prima facie accepted that this remedy is effective.17 The pilot procedure here,
thus, helped to address both systemic rights violations in domestic law and
workload management for the Court, illustrating the potential usefulness of
pilot judgments where they are executed by the respondent state. In con-
trast, however, we might consider the pilot judgment in Greens and M.T. v the
United Kingdom.18 This followed the non-execution of the decision in Hirst
(no. 2) (on prisoner voting), and involved the Court prescribing general meas-
ures to the UK in the following terms:

[T]he respondent State must introduce legislative proposals […] within six months
of the date on which the present judgment becomes final, with a view to the
enactment of an electoral law to achieve compliance with the Court's judgment
in Hirst according to any time-scale determined by the Committee of Ministers.19
14
See further Helfer, ‘Redesigning the European Court of Human Rights’ (above, n. 11).
15
Burdov v Russia (no. 2), no. 33509/04, ECHR 2009, para. 141.
16
Federal Act 68-Ø from 30 April 2010 ‘On compensation for a violation of the right of trial
in reasonable time or right for a judicial act to be executed in reasonable time’.
17
Nagovitsyn and Nalgiyev v Russia, no. 27451/09 and 60650/09, 23 September 2010.
18
Greens and M.T. v the United Kingdom, nos 60041/08 and 60054/08, ECHR 2010.
19
Ibid., para. 115.
174  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Although technically the government did introduce legislative propos-

als that would allow some prisoners to vote, these proposals were rejected
by an overwhelming majority of the Parliament20 and there has been no
change to domestic law on disenfranchisement. Here, then, the pilot judg-
ment did not successfully nudge systemic change to address the violation
already addressed in Hirst (no. 2), which still has not been executed by the
UK. Very recently, and almost 12 years after the judgments in Hirst (no. 2)
became final, the UK Government announced plans to allow some prison-
ers to vote, but these plans had not yet been realised at the time of writing
(December 2017).21
It is reasonable to ask here whether the pilot judgment truly made any sig-
nificant difference to rights-related remedy in either of these cases. The truth is
that the majority of judgments of the Court are routinely executed; in general
terms only those judgments that are politically sensitive or require major
resource (re)allocation in order to ensure their execution become problematic.
The pilot in Burdov (no. 2) is neither of those: it does not require major finan-
cial investment, is mostly technical in nature, is aimed at improving procedural
protection of human rights on the national level, and did not come into con-
flict with any major domestic political wrangling on the issue. Simply put, there
were neither economic, political nor ‘principled’ reasons for the state to resist
execution. This stands in clear contrast to Hirst (no. 2) and its pilot counter-
part Greens and M.T. The issue of prisoner voting is extremely politically sen-
sitive in the United Kingdom, as is the issue of so-called ‘judicial power’ and
the legitimacy (or otherwise) of the ECtHR ‘telling Westminster what to do’
where the parliament has already taken a firm position on the matter. Indeed,
so trenchant had the then-Prime Minister been when Hirst (no. 2) was handed
down that it was Parliament, and not the ECtHR, that should decide who
would get to vote in the United Kingdom that ‘backing down’ in implement-
ing the Court’s judgment might well have had undesired political costs in the
domestic sphere.22
This reflects the concern that execution of pilot judgments (or indeed any
judgments of the Court) may have as much to do with domestic political con-
ditions as with the form of the judgment and the measures directed within

20
The Backbench Parliamentary Debates, ‘Prisoners’ Right to Vote’, available at http://www.
publications.parliament.uk/pa/cm201011/cmhansrd/cm110210/debtext/110210-0002.
htm.
21
Siddique, ‘Government Reportedly Planning to Allow Some UK Prisoners to Vote’, The
Guardian, 29 October 2017, available at https://www.theguardian.com/society/2017/
oct/29/government-planning-to-allow-some-prisoners-to-vote-european-court-human-rights.
22
For more on political dimensions of non-execution see de Londras and Dzehtsiarou,
‘Mission Impossible? Addressing Non-execution through Infringement Proceedings in the
European Court of Human Rights’ (2014) 66 International and Comparative Law Quarterly
467.
 175
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

it.23 A judgment of the ECtHR might be particularly politically sensitive if

the domestic parliament can block execution (for example by voting against
legislative change required for execution), if it concerns unpopular minorities
without the political power to exert sufficient pressure on the institutions of
the state to create significant political costs for non-execution, or if the gov-
ernment operates in an environment in which the ECtHR is perceived to be
actively and illegitimately interfering with the sovereignty of the respondent
state. As an issue, prisoner enfranchisement in the UK displays all of these
symptoms of political sensitivity: it requires legislative change, it concerns the
rights of prisoners who have limited popular sympathy and political power, and
it is being considered in an environment increasingly uncomfortable with ‘judi-
cial power’ and the Court (as discussed in Chapter 2).
Pilot judgments represent a relatively recent strategy on the part of the
Court to be more prescriptive about general measures. That is not to say that
declaratory findings of human rights violation are not useful per se; a merely
declaratory finding should be sufficient to prompt political and legal reform in
order to address the underpinning issue from which the rights violation might
be said to flow. Combined with just satisfaction (where awarded) it can fulfil
the two classical functions of remedy in public law: to ‘redress the wrong done
to the plaintiff [… while …] ensuring that future public action complies with
the requirements of the law’.24 However, the transformative potential of decla-
rations of violation is very much dependent on its reception within the politi-
co-legal context to which it is directed. Given the very wide range of domestic
legal and political systems to which the ECtHR is now ‘speaking’ with the
increased Council of Europe membership of 47 states, it is perhaps not surpris-
ing that it has supplemented declaratory relief and its ability to order just satis-
faction with other approaches, including pilot judgments.

Debate 2
Must respondent states execute judgments of the ECtHR?
Article 46 of the ECHR is very clear: the decisions of the Court are binding
on the respondent states. As a result, there is an international legal obligation
to execute these judgments. We have already seen, in Debate 1, that the Court
can order a range of remedies, some of which may be less challenging for a state
to execute than others. However, notwithstanding the fact that execution may
involve different challenges and different techniques depending on the form of
remedy that is ordered, the Article 46 obligation to execute continues to apply.
It does not discriminate between the different remedial forms.

23
Although specifying general measures in the operative part of the judgment does seem to
enhance execution, the sample numbers are relatively small compared to the general number of
cases before the Court. See further Mowbray, ‘An Examination’ (above, n. 7).
24
Sathanapally, Beyond Disagreement: Open Remedies in Human Rights Adjudication (Oxford
University Press, 2012), 11.
176  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Thus, the simple question of whether a respondent state must execute the
judgments of the Court is amenable to a straightforward answer as a matter
of international law: ‘yes’. Without equivocation, then, we can and should say
that execution of ECtHR judgments is very simply a requirement of the Rule
of Law; adherence to an existing legal obligation.25 However, notwithstanding
this straightforward doctrinal answer, one might imagine a number of argu-
ments against suggesting that respondent states must always execute the judg-
ments against them that are handed down by the Court. We can divide these
into arguments of principle, arguments of the constitution, and arguments of
practicality. We first outline some of the contours of each of these arguments,
before suggesting an argument for execution in spite of them.

Arguments of Principle
In almost all states in the Council of Europe, we can say that domestic law
has been made ‘lawfully’ by the democratically elected parliament whose role
is to reflect the will of the People. There will, then, sometimes be situations
in which being required to change that law following a decision of a ‘foreign’
court may cause tensions, notwithstanding the fact that doing so is a require-
ment of the Rule of Law.26 If we leave to one side, for a moment, the legal
argument of obligation, we can ask whether the proposition that a domestic
parliament might resist execution and, through so doing, enter into a kind of
dialogue with Strasbourg may not be not entirely outrageous in principle, par-
ticularly if the individual remedies (if any) that are ordered by the Court are
given effect to, but the general measures (such as legal change) are not. After
all, if the implementation of the Convention is a matter for all of the institu-
tions of the state and not only the courts (as it is), then why is it that the courts
may enter into a dialogue of contestation (as considered in Chapter 2 and
further in Debate 3 below), but the other institutions of the state may not?
One answer to this provocative question may be that parliamentarians are
likely to be swayed by popular opinion and a need to satisfy electoral wiles in
a way that the courts are not, and – if rights are about human dignity and not
about bestowing upon people privileges that ‘the majority’ decides they should
have – mere politics ought not to have the same dialogical status as courts.
This argument has an instinctive attraction in most European states, but is a
little more difficult to sustain within the constitutional tradition of the United
Kingdom where, indeed, the constitution – including constitutional rights – is
political, and where Parliament is recognised as having a role (if not the ulti-
mate role) in determining its content.27 The argument may also be somewhat

25
See, for example, Donald, ‘Tackling Non-Implementation in the Strasbourg System: The Art
of the Possible?’ EJIL: Talk, available at https://www.ejiltalk.org/author/adonald/.
26
See also Article 27, Vienna Convention on the Law of Treaties.
27
For the classical argument see Griffith, ‘The Political Constitution’ (1979) 42 Modern Law
Review 1.
 177
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

more difficult to sustain in states where the judiciary is compromised, either

by a lack of judicial independence or by the design of judicial institutions in
a way that privileges the views, policies and politics of the ruling party.28 In
recent years, there have been attempts to reshape the constitutional courts in
Hungary and Poland, for example, to ensure that the government’s desired
outcome is likely to be shared by the majority of judges, and the courts of
Turkey have been purged of approximately 4,000 so-called traitors following
the coup against President Erdoğ an in 2016.
It is, thus, by no means clear that either the parliaments or the courts of the
member states of the Council of Europe uniformly have the accountability,
independence, and respect for the rule of law that such an argument is predi-
cated on. However, where the institutions in question do have those traits (at
least to the extent possible in any polity), there are likely to be questions on
which reasonable people might reasonably disagree29 and, in relation to these,
the simple argument of legal obligation under Article 46 may not be sufficient
to satisfy the dissenter who considers the decision of the domestic institutions
to have a greater claim to authority, given its roots in a democratic, deliberative
and reflective exercise, than that of the ECtHR.

Arguments of the Constitution

However strong arguments might be about parliamentary will overriding the
decisions of the ECtHR, arguments about the primacy of domestic constitu-
tional provisions have a potentially more compelling nature. Situations where
domestic constitutional law and international law are in conflict with one
another are particularly complex, but again domestic law may well have some-
thing to say about the relationship. A wide variety of approaches can be iden-
tified across Europe.30
The first is one that recognises the effective primacy of the international
legal norm over the domestic constitutional norm. In such situations, a finding
of incompatibility between the domestic constitutional provision and the inter-
national obligation will lead to a change in the domestic constitution, which in
turn will be effected by the appropriate mechanism according to domestic law.

28
For a recent analysis of judicial independence across Europe see Consultative Council of
European Judges, Challenges for Judicial Independence and Impartiality in the Member States
of the Council of Europe SG/Inf(2015)3rev.
29
Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal
1346.
30
For a useful, although incomplete account, see Keller and Stone-Sweet (eds), A Europe of
Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press, 2008).
See also Martinico and Pollicino (eds), The Interaction between Europe’s Legal Systems (Edward
Elgar, 2012); Motoc and Ziemele (eds), The Impact of the ECHR on Democratic Change in
Central and Eastern Europe Judicial Perspectives (Cambridge University Press, 2016).
178  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

For example, Article 11 of the Slovak Constitution provides that international

treaties on human rights and basic liberties that were ratified by the Slovak
Republic and promulgated in a manner determined by law take precedence
over its own laws, provided that they secure a greater extent of constitutional
rights and liberties than domestic law does.31
The second approach is to recognise the domestic constitution as a ‘block’
on internationalism, so that the authority of an international provision is rec-
ognised as ‘trumping’ domestic law inasmuch as it does not conflict with the
Constitution. Usually, this principle is developed and applied by the domes-
tic courts themselves. In Italy, the ECHR is placed between the Constitution
and the national statutes: below the former but above the latter.32 Attaching
a super-legislative status to the ECHR means that the Constitutional Court
needs at least to take into account the case law of the ECtHR. Yet the Italian
Constitutional Court has limited the impact of the Strasbourg case law by sug-
gesting that Italian judges should give effect to ‘consolidated law’ or ‘pilot
judgments’.33 In Germany, the Constitution has primacy over the ECHR.34
The third approach is to provide that a domestic court may specifically deem
the decision of an international court to be incapable of execution because it
conflicts with the domestic constitution. Thus far, the Russian Federation is the
only state in the Council of Europe in which such an approach is taken explic-
itly; we discussed this in Chapter 2, and the development has attracted much
concern, such as this from the Venice Commission:

States have to remove possible tensions and contradictions between rulings of

the ECtHR and their national systems, including – if possible – via means of
dialogue. This is a tool which has proven its effectiveness in many instances, in
several Council of Europe member States. The Russian Federation should have
recourse to dialogue, instead of resorting to unilateral measures, which are at
variance with the Vienna Convention on the law of treaties which stipulates that
a state has to interpret the treaty ‘in good faith’ (Art. 31).35

The fourth approach is expressly to incorporate the international standard at a

sub-constitutional level, so that incompatibility with the Convention can result
in, for example, a domestic court ‘interpreting up’ a statute, but does not

31
See also Article 10 of the Constitution of the Czech Republic.
32
Judgments Nos 348 and 349 (24 October 2007) (It).
33
Judgment No. 49 (26 March 2015) (It).
34
This is laid down in Görgülü 2 BvR 1481/04 (14 October 2004) BVerfGE 111, 307 (Ger);
see further Dzehtsiarou and Mavronicola, ‘Relation of Constitutional Courts/Supreme Courts
to the ECtHR’ in Max Planck Encyclopedia of Comparative Constitutional Law (Oxford Uni-
versity Press, 2017).
35
European Commission for Democracy Through Law (Venice Commission). Interim
Opinion on the amendments to the Federal Constitutional Law on the Constitutional Court of
the Russian Federation adopted by the Venice Commission at its 106th Plenary Session (CDL-
AD(2016)005-e), para. 100.
 179
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

disturb the constitutional standard in question. This is the approach taken in

Ireland, for example, under the ECHR Act 2003. In such a system, the incom-
patibility between the Convention and the Constitution may lead to constitu-
tional change where politics determines that it should, but domestic law does not
require such a change to be introduced.
The fifth approach is to give the ECHR – or the domestic statute implement-
ing it – a constitutional status, so that it can only be changed in accordance
with the requirements for amending constitutional statutes in the domestic
legal system. This is what happened in Austria, where the ECHR has constitu-
tional status and conflicts between the Bundes-Verfassungsgesetz (which is the
primary constitutional text) are satisfied by application of lex posteriori derogat
legi priori principle (i.e. that a later law repeals an earlier law).36 In the UK
the Human Rights Act 1998 has the status of a constitutional statute, so that
the doctrine of implied repeal does not apply to it as it does to most statutes
in the United Kingdom.37 Whilst this does not give the ECHR the status of
domestic constitutional law, it brings it obliquely into the constitutional realm
through the obligation of the courts to account for ECtHR jurisprudence
(under section 2), the power to interpret domestic statutes as far as possible in
line with the Convention (under section 3), and the inclusion of much of the
Convention text as a Schedule to the Act.
All of these approaches reflect the complexity of the relationship between
a domestic constitutional provision and the Convention. Whilst a domestic
statute is an expression of democratic will refracted through parliamentary pro-
cesses, a Constitution is something more: it is a mechanism for restraining
political and democratic will, a superior law usually entrenched in some way,
often an expression of domestic values, and not uncommonly a key mechanism
in the creation of domestic constitutional culture. It is, thus, difficult when
that domestic constitutional culture is at odds with a transnational legal order
of which the state is a part (through membership) but which may not always
accord with what governments sometimes describe as ‘national values’. These
contentious questions are often, but not always, associated with issues relating
to societal norms, such as the definition of marriage. However, where a domes-
tic constitution is understood as according the right to marry to opposite-sex
couples only, for example, or as precluding the legalisation of abortion, one
might argue that incompatibility with an international standard ought not be
sufficient to force a change in that constitutional order, but that such change
should emerge from domestic, organic processes of constitutional evolution.
Whilst that argument has a certain intellectual attraction to it, on a practi-
cal level it is clear that international litigation is often a key lever for domestic

36
On the ECHR in Austria see Thurnherr, ‘Austria and Switzerland’ in Keller and Stone-
Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford
University Press, 2008).
37
Thoburn v Sunderland CC [2002] 4 All ER 156; R. (HS2 Action Alliance Ltd) v Secretary of
State for Transport [2014] UKSC 3.
180  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

activists and advocates who wish to bring about a shift in national constitutional
provisions and constitutional cultures and values. The processes of constitu-
tional change are not always accessible to marginalised groups and individuals,
and sometimes an international ‘nudge’ is required to force an issue onto the
agenda or, indeed, to compel the constitutional change itself. If this is accept-
able in the case of ordinary legislation, one might argue that the acceptability
of the same principle in relation to the Constitution ought to be conceded,
and that it is only an unjustified veneration of the constitutional text as com-
municating some sense of common identity and values from which these mar-
ginalised individuals are often excluded that holds one back from taking such
a position.

Arguments of Practicality
In some cases, non-execution is justified by the Contracting Parties on the basis
of practicality. This argument, once more, holds no truck from a legal doctrinal
perspective, but is nevertheless interesting, sometimes made by states, and thus
worth considering. It can emerge in a number of different ways.
First, and perhaps most obviously, where the ECtHR requires general
measures it simply may not be possible to undertake the legal change that
this entails. If it requires fresh legislation, a parliamentary majority might not
be secured. Where the legal change is constitutional this may be even more
complex. Although constitutional change is brought about by legislation in
many states (such as Bulgaria (for most constitutional provisions)), it is not
uncommon for legislation changing the constitution to require a ‘super major-
ity’, as is the case in the Czech Republic. Even a government with a simple
majority may not be able to secure a super majority, and the upper house in
bicameral systems may not be controlled by the federal government. It may
operate without a whip,38 have unelected and non-party affiliation structures,39
or represent states/cantons/länder and not be susceptible to control by the
national governing parties, for example.40 Some states even require an elec-
tion to amend the Constitution. In Belgium, the law proposing constitutional
change must be published, following which there is a general election, and only
following that can the proposed amendments to the Constitution be intro-
duced (with a two-thirds majority in both Houses of parliament), with the
election acting as a quasi-referendum on the proposed change. In Denmark, a
proposed change must be approved by parliament, following which a general
election must be held. The new parliament elected in that general election
must then approve the proposed amendment again and there must then be a

38
For example, there is no formal ‘whip’ in the UK’s House of Lords.
39
For example, the Irish Senate is almost all unelected and is not organised in party-political
terms.
40
For example, in Germany.
 181
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

referendum of the People. Where constitutional change requires a referendum

(as it does also in Ireland and Switzerland, for example) the referendum, even if
put to the People, simply may not pass. It may well be the case that the People
determine that regardless of what the ECtHR says they want to maintain a con-
stitutional position that is at odds with the Convention. If the ultimate decision
maker on constitutional change is the People, then the most a government can
realistically do by means of execution is to put the proposal to the People and
argue for its adoption. It cannot guarantee that the required legal change will
be effected. Thus, the very nature of bringing about constitutional change may
be a real practical barrier to execution.
Even if complex legal change is not required, resource constraints may
make execution of an ECtHR judgment difficult to achieve. In some cases the
general measures to be implemented – for example to greatly accelerate crimi-
nal justice processes in order to tackle undue delay resulting in Article 6 viola-
tions – might only be achieved at an enormous cost, and there is an argument
that allocating budget and prioritising between different areas of required
investment is a matter that is best decided upon by governments themselves.
This is, one might argue, particularly the case in situations of extremely limited
resources, austerity, mass unemployment and high levels of poverty (including
among children); conditions that prevail today in some European states. It is
sometimes supposed that only socio-economic rights are costly to implement,
but civil and political rights are also resource-intensive; consider the price, for
example, of improving the physical infrastructure of a state’s prisons, of estab-
lishing voting processes in extremely remote locations, of providing free legal
aid to all indigent criminal defendants. These are not cost-free rights. States’
resources are not boundless, but their distribution always requires policy deci-
sions by political institutions. In other words, prioritisation always operates
when decisions about expenditure are being made, so one might argue that it
is no effective defence to say ‘we could not afford to execute the judgment’, or
‘we preferred to invest our resources elsewhere’; indeed, the Court has made
it clear that financial constraints cannot justify a failure to protect Convention
rights.41 That argument, which at first seems one of simple practicality, relates
as closely to concepts of sovereignty as do arguments of principle and the con-
stitution. At their heart, they are all arguments that come from a basic claim:
the ECtHR should not be able to tell us what to do.

The Argument for Execution

In spite of all of these arguments against execution, the simple legal reality is
that states do have an obligation to execute judgments against them under
Article 46. Indeed, there is also a broader international law obligation to do
so; Article 26 of the Vienna Convention on the Law of Treaties requires states

41
See, for example, Azinas v Cyprus, no. 56679/00, 20 June 2002, para. 41.
182  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

to respect the international treaties it has ratified, and Article 27 provides that
provisions of domestic law cannot be relied upon to justify a failure to perform
a treaty. The argument for executing judgments under Article 46(1), then, is
one of legal obligation. That legal obligation relates to the broader project of
creating an international rule of law: of recognising international legal obliga-
tions as legally binding (thus endorsing international law’s status qua law), and
of recognising the decisions of international courts as binding in the same way
as those of domestic courts (thus recognising an international rule of law that
cannot be subverted by simple will).
Of course, this is not to say that the decisions of international courts are the
same as the decisions of domestic courts. In many significant ways they are dif-
ferent, and indeed domestic legal systems often have in-built mechanisms to
reject the decisions of courts, not as to the outcome in a particular case but
as to the broader legal framework. Thus, for example, if the Irish Supreme
Court finds that a provision of the Constitution has a meaning that the govern-
ment does not consider workable or favourable, the Government can propose a
change to the Constitution to the People and thus attempt to change the base-
line legal norm.42 The People, then, have the ultimate say. But in the meantime
the decision of the Supreme Court would be complied with; it is the author-
itative legal instrument until a more authoritative one (in this case emanating
from the People) comes into existence.
In other systems, it is Parliament that would decide on whether to change
the Constitution, but the same general point stands: domestic legal systems
tend to have processes that allow for ensuring the Court does not have ‘the
final say’, so to speak, on the broader legal standard.43 At first blush, this is not
as clearly present in the ECHR: whilst States can propose and initiate changes
to the Convention text that may lead to the amendment of the Convention
in due course, this is complex and requires widespread agreement – and rat-
ification – from the other Contracting Parties. However, states do have ways
to engage with the Court to try to revisit the baseline legal standard: through
judicial dialogue, through imaginative arguments before the Court, through
‘signalling’ disagreement with the Court’s approach by means of Parliamentary
debates and so on. The Court has ways of listening: through European consen-
sus, through evolutive interpretation, and through the margin of appreciation,
for example. Thus, whilst the system is different to that often found in domes-
tic legal systems, this kind of response from the states is possible and, some-
times, successful. Thus, the Rule of Law demands compliance with judgments

42
For more see de Londras and Gwynn Morgan, ‘Constitutional Amendment in Ireland’ in
Contiades (ed.), Engineering Constitutional Change: A Comparative Perspective on Europe,
Canada and the USA (Routledge, 2012).
43
For a broader discussion see de Londras, ‘In Defence of Judicial Innovation and Constitu-
tional Evolution’ in Cahillane, Gallen and Hickey (eds), Judges, Politics and the Irish Constitu-
tion (Manchester University Press, 2017).
 183
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

of the Court in respect of the particular case, but that does not mean the
system has no space within it for contestation and refinement of the standards
in question.
This points to an important distinction in considering the question of
non-execution; the distinction between whether to execute and how to execute.
Whilst there is no question in law about whether a state must execute, there
may be a question in fact about how the state has gone about this process
of execution. Thus, the discourse that takes place between the Committee of
Ministers and the state, and the possibility to seek clarification on what a judg-
ment requires from the Court (under Article 46(3) and potentially 46(4)) are
important mechanisms for figuring out whether the state’s purported actions
to execute the judgment suffice, whilst still ensuring that a state – even one
that wants to mount a challenge to or is unhappy with the legal interpreta-
tion applied by the Court in the case – is positively engaged with the process
of execution.
That engagement – that willingness to execute even if the state does not
agree with the judgment as an expression of ‘diffuse support’44 for the Court
– is of fundamental importance. Not only does it underpin the status of the
Convention as law, and the Rule of Law in Europe, but it also protects the
system against contagious non-execution, where states begin to claim not only
that they can contest how to execute, but that they can decline to execute at
all. As Nils Muižnieks wrote, ‘A future where each Council of Europe member
state reorganises its internal constitutional hierarchy so that the Convention
can be trumped is a danger to the rule of law in that state and in all other
states.’45 This reinforces the fact that the Council of Europe is a community
of states, and that the Convention and the protection of rights thereunder
is a collective enterprise. The action of one state, particularly a ‘norm entre-
preneur’,46 in undermining the Convention through a refusal to execute has
potentially deleterious impacts on the entire system by encouraging or implic-
itly endorsing a similar approach in others.47 Thus, there is a moral responsi-
bility on states to engage positively and constructively with execution for the

44
See, for example, Lupu, ‘International Judicial Legitimacy: Lessons from National Courts’
(2013) 14 Theoretical Inquiries in Law 437.
45
Muižnieks, ‘Non-implementation of the European Court of Human Rights’ Judgments:
Our Shared Responsibility’, 23 August 2016, available at https://www.ein.org.uk/blog/
non-implementation-courts-judgments-our-shared-responsibility.
46
Norm entrepreneurs can be understood as those ‘with the skills and resource to undertake
a project or to make things happen’ (Herro, ‘Norm Entrepreneurs Advocating the Respon-
sibility to Protect, and Peacekeeping Reform Proposals’ in Curran et al. (eds), Perspectives
on Peacekeeping an Atrocity Prevention (Springer, 2015), 41). In this context, they are states
with the ability to change the behaviours of others through their leadership, behaviour and
representations.
47
See, for example, Bates, ‘The Continued Failure to Implement Hirst v. UK’ EJIL: Talk, avail-
able at https://www.ejiltalk.org/the-continued-failure-to-implement-hirst-v-uk/.
184  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

good of the system as a whole, and in order to ensure that the post-war Euro-
pean project(s) continue to be effective in protecting rights and freedoms
across the continent.
We know, however, that this moral and legal duty to execute judgments
does not always translate into action, and thus a question as to whether states
can be compelled to execute judgments arises. At the moment, the Committee
of Ministers mostly uses diplomatic pressure on Contracting Parties that have
not executed judgments against them; an approach that is sometimes ineffec-
tive. The Committee also, however, has the legal power to initiate infringe-
ment proceedings under Article 46(4). This provision, added by Protocol 14,
has never been used. It provides:

If the Committee of Ministers considers that a High Contracting Party refuses

to abide by a final judgment in a case to which it is a party, it may, after serving
formal notice on that Party and by decision adopted by a majority vote of two-
thirds of the representatives entitled to sit on the committee, refer to the Court
the question whether that Party has failed to fulfil its obligation under [Article
46(1)].

Whether the infringement proceeding under Article 46(4) is likely to be useful

is the subject of substantial debate. On the one hand, the Parliamentary Assem-
bly of the Council of Europe, human rights activists and some commenta-
tors encourage the Committee of Ministers to use infringement proceedings
against states on which other forms of pressure have been ineffective.48 On the
other side of this debate are those who think that utilisation of Article 46(4)
will have limited practical effect on improving the enforcement of the Court’s
judgments.49
Article 46(4) provides that if the Committee of Ministers considers that a
Contracting Party refuses to abide by a final judgment in a case to which it is a
party, it may, after serving formal notice on that Party and by decision adopted
by a majority vote of two-thirds of the representatives entitled to sit on the
Committee, refer to the Court the question whether that Party has failed to
fulfil its obligation to implement the judgment. If the ECtHR finds that the
state has failed to execute the judgment, this constitutes a further violation of
the Convention (this time of Article 46(1): the obligation to execute).
The idea behind Article 46(4) was to give the Committee of Ministers an
enforcement tool that would be more effective than diplomatic actions such as
resolutions and discussions with the state, but less detrimental to the Council of
Europe than suspending a state’s membership. However, real questions about
its utility arise. First, it is not clear that the basic requirements for triggering
Article 46(4) could be met: achieving a two-thirds vote in the Committee of

48
de Vries, ‘Implementation of Judgments of the European Court of Human Rights’ (PACE,
Report, 9 September 2015, Doc 13864), available at www.assembly.coe.int/nw/xml/XRef/
X2H-Xref-ViewPDF.asp?FileID=22005&lang=en; Donald, Tackling Non-Implementation’
(above, n. 25).
49
de Londras and Dzehtsiarou, ‘Mission Impossible?’ (above, n. 22).
 185
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

Ministers would be extremely challenging. The Committee is a political body

that is formed of the ministers of foreign affairs from the Contracting Parties,
many of which have failed fully to execute judgments against them. Picking out
one country for Article 46(4) proceedings may lead to accusations of scape-
goating, and to nervousness among other states likely to find themselves the
subject of similar votes in the future. That said, it is true that some states are
more trenchant in their non-execution, especially in cases relating to political
dissent and the like, and might fairly be identified for infringement proceed-
ings. Since the introduction of this procedure in 2010 the Committee of Min-
isters has initiated it only once: in relation to Azerbaijan in the case of Ilgar
Mammadov.50 This request is still pending before the ECtHR at the time of
writing (in December 2017) and its outcome and impact are uncertain.
The second practical challenge is that by using this procedure the Com-
mittee of Ministers would implicitly be accepting that it has failed in super-
vising the execution of a particular judgment. Lambert-Abdelgawad has well
observed that international institutions do not readily make manifest their fail-
ures in such a way,51 and this may suggest that the majority of attempts to
trigger Article 46(4) simply would not be successful for lack of political will-
ingness in the Committee of Ministers itself.
However, perhaps the greatest contestation on the question of infringement
proceedings relates to what, if anything, they would achieve if the practical
challenges of triggering Article 46(4) could be overcome. Infringement pro-
ceedings have to be heard in the Grand Chamber, meaning that there would
be substantial delay in hearing a case once the Committee of Ministers had
decided to refer it. During that time there would be limited incentive for an
already-recalcitrant state to make any progress on execution of the judgment in
question, leaving rights unenforced during that time and meaning that, even if
the respondent state had been willing to do something (albeit something inad-
equate to constitute full execution in the view of the Committee of Ministers),
it would do nothing from the point of initiating Article 46(4) of the ECHR
proceedings to the time when the Court delivers its decision on the infringe-
ment proceeding.
More pressingly, however, it is not clear whether a finding of further infringe-
ment under Article 46(4) would really achieve anything from a practical per-
spective. The reality is that an Article 46(4) procedure effectively tells us what
we already know: that a state has failed to respect a judgment of the Court.
One might argue that if a state cared enough about its international reputation

50
Ilgar Mammadov v Azerbaijan, no. 15172/13, 22 May 2014. See also ‘Committee
of Ministers Launches Infringement Proceedings against Azerbaijan’, Council of Europe
Newsroom, 5 December 2017, available at https://www.coe.int/en/web/portal/-/coun-
cil-of-europe-s-committee-of-ministers-launches-infringement-proceedings-against-azerbaijan.
51
Lambert-Abdelgawad, ‘The Court as a Part of the Council of Europe: the Parliamentary
Assembly and the Committee of Ministers’ in Føllesdal, Peters and Ulfstein (eds), Constitut-
ing Europe: The European Court of Human Rights in a National, European and Global Context
(Cambridge University Press, 2013).
186  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

to remedy violations of the Convention when they were identified, they would
already have executed the judgment in question. If not, it is difficult to tell
what difference a further judgment from the Court would make to the will-
ingness to execute. Certainly, an adverse finding in an Article 46(4) proceed-
ing may create greater and refreshed international pressure for execution of the
original judgment, but the impact of that pressure cannot easily be foreseen.
Much is likely to depend on how other political powers – neighbours, allies and
fellow Council of Europe members – use that pressure created by the interna-
tional court, and how domestic courts and domestic political structures also
respond to it in fresh litigation that might be taken at the domestic level. The
potential usefulness of Article 46(4) may, then, lie in reigniting effective politi-
cal pressure on the respondent state to execute the original judgment against it.

Debate 3
Should non-respondent states give effect to ECtHR judgments?
Judgments of the ECtHR do not have erga omnes effect. In other words, they
are legally binding on the respondent states only. The Court’s judgments com-
monly include both a determination of the dispute before it and often state-
ments on the meaning of the Convention and its provisions. Such statements
are, of course, of relevance beyond the particular facts of the case before the
Court; it is the ECtHR that has the role of developing an autonomous and
determinative interpretation of the Convention, so that its findings on the
meaning and effect of the ECHR may be of broader effect. It is of the essence
of the Convention that the national authorities would give effect to the Con-
vention, with cases to the Court having been foreseen as, in effect, exceptional,
where the national authorities have not succeeded in implementing the Con-
vention. That is an important part of the principle of subsidiarity that under-
pins the Court’s jurisdiction.52 This suggests that there is a logical expectation
of the Convention as interpreted by the Court being applied and implemented
at national level. It is not a legal obligation but a logical consequence of the
functioning of the system. This implementation is the role of all parts of the
state: the executive is expected to plan policy by reference to its Convention
obligations, the legislature to attempt to legislate only in compliance with the
Convention, public authorities to apply and implement the law and bureau-
cracy of the state consistent with Convention rights, and courts to take account
of the Convention and case law of the ECtHR to the extent permissible by
domestic law.

52
See Spielmann, ‘Judgments of the European Court of Human Rights Effects and
Implementation’. Keynote Speech’, available at www.echr.coe.int/Documents/
Speech_20130920_Spielmann_Gottingen_ENG.pdf, 5; Spano, ‘Universality or Diversity of
Human Rights?’ (2014) 14 Human Rights Law Review 487.
 187
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

It is on domestic courts and their role in implementing the Convention that

we concentrate here. Consideration of this requires a preliminary appreciation
of the different approaches to the role of international law in domestic legal
systems across the Council of Europe. It is sometimes said that the relationship
between municipal and international law can be roughly categorised as either
monist or dualist, with monist systems treating international law as having
domestic effect upon ratification, and dualist systems requiring explicit imple-
mentation (usually by legislation) before an international legal instrument can
be relied on as binding authority in domestic law. However, as we have already
seen, across the Council of Europe there is a wide variety of approaches even
within these two broad schools.
Even if the Convention has domestic legal effect, however, the domestic
impact of judgments from Strasbourg against other Contracting Parties is a
matter of some contention, not least because there is no international legal
obligation for the national authorities to execute those judgments. In essence,
then, the approach to such judgments will depend largely on judicial approaches
towards them. In some states, such as Lithuania and Croatia, these judgments
are treated as effectively binding; in others, such as the UK and Ireland, they
are explicitly non-binding, although they are to be taken into account when
considering Convention-related cases. Where domestic law has made the juris-
prudence of the ECtHR binding on its courts then there is little to debate; the
principled decision on the role of these judgments has been taken as a matter of
domestic law and that domestic law is simply applied. However, where domestic
law allows for the domestic court to take account of but not be bound by these
judgments, debates about what this does – and should – mean may ensue. This
is the case in the United Kingdom.
Section 2 of the Human Rights Act 1998 requires domestic courts to take
account of Strasbourg jurisprudence; almost identical wording is used in the
ECHR Act 2003 in Ireland. On the face of it, this means that such decisions
ought to be treated just as other persuasive sources are: parties may rely on
them to try to convince the court to take one approach or another to a ques-
tion, and judges may use them in reaching decisions. In all circumstances, the
use of so-called ‘foreign law’ for the purposes of domestic law interpretation
and adjudication is contentious.53 For some, this is entirely illegitimate: domes-
tic law should be decided on the basis of domestic precedents alone. However,
an absolute aversion to the use of such sources as persuasive precedent is
an extreme and seldom-expressed position. Caution about reliance on such
sources largely emanates from a concern for judicial legitimacy. For some schol-
ars, courts are always treading on sensitive ground: they do not have domestic
democratic legitimacy that might come from direct election from the people,

On the broader debates on this see, for example, Fredman, ‘Foreign Fads of Fashions? The
53

Role of Comparativism in Human Rights Law’ (2015) 64 International and Comparative Law
Quarterly 631.
188  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

and they may well make decisions that upend the acts of parliament or the gov-
ernment, the members of which are directly elected. This is not the place to
engage in this much wider debate about the limits and legitimacy of the judi-
cial role, but it is worth noting at this stage that the debate about the role of
ECtHR judgments in domestic law is related to that larger and very longstand-
ing academic and judicial debate about the role of ‘foreign’ law per se.
It does, however, have a somewhat different character in the particular
context of the interpretation and application of the Convention and, where
relevant, its implementing provisions in domestic law. It is beyond dispute that
the ECtHR has the ultimate role of interpreting and applying the Conven-
tion.54 As a matter of international law the ECHR means what the Court says
it means. It is, thus, relatively uncontroversial to suggest that where a domestic
court is assessing what the Convention per se might mean, and where there is
a decision on this from Strasbourg, the domestic court might ordinarily follow
that decision and then consider its implications for the questions of domestic
law that arise.
This is not to suggest that the Strasburg Court and its domestic counter-
parts have no necessary or productive relationship in the context of the devel-
opment and implementation of the Convention; quite to the contrary, in fact.
The ECtHR is connected to domestic courts and their work as considered in
Chapter 2. What we mean by this is that all of these courts have a role in devel-
oping and implementing the corpus of European human rights law that forms
part of the so-called European Public Order. In respect of the relationship
between domestic courts and the ECtHR, this means that there is an impor-
tant role for (informal) cooperation and collaboration, and indeed at times for
contestation and disagreement, on the meaning of the Convention. Such dis-
course and quiet collaboration does not undermine the authority of the Stras-
bourg Court: its decision in a particular case remains binding as against the
parties, and the respondent state must still execute it. In this way, such judicial
contestation is markedly and importantly different to the political contestation
that underpins much of the non-execution we have considered in Debate 1 of
this chapter.
Within a framework of this kind, there must – one might argue – be some
space for contestation, so that domestic courts might consider themselves able
to express disagreement with the decision of the Strasbourg Court about the
meaning of any particular provision. In situations where the judgments were
not handed down against the state in question, there is no reason in interna-
tional law why the domestic court might decide to treat the cases in question
as not being binding upon them.
The value of this collaborative engagement on the meaning of the Conven-
tion – an engagement that includes not only ‘taking account of’ the Strasbourg

54
Pursuant to Article 32 ECHR the jurisdiction of the Court shall extend to all matters con-
cerning the interpretation and application of the Convention and the Protocols.
 189
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

jurisprudence but also cross-court engagement, judicial training, and fora that
facilitate extra-curial judicial interactions – is not only that the involvement
of domestic courts and judges with Strasbourg institutions may bring to light
some practical or doctrinal complications with the ECtHR approach that were
not otherwise apparent (which is in itself important), but also that the domes-
tic courts and judiciaries might develop a sense of co-ownership over, and
co-authorship of, the Convention and its jurisprudence. After all, only a very
small proportion of the cases that concern the Convention ever gets to the
Court, and fewer still get past the admissibility stage. Most Convention matters
are addressed domestically, either through legislation, practice or judicial deci-
sions. The effectiveness of the Convention as part of a system for the protec-
tion of human rights calls for engagement between domestic and European
judiciaries in order to better embed the Convention and ensure that its prin-
ciples and rights are protected even without a case having to be taken to the
Court.
The controversy, of course, arises when we distil that general principle (that
collaboration between domestic judiciaries and the Court is to be welcomed)
into rules of law that might determine how that collaboration would work
in practical terms when a case raising a Convention issue comes before the
domestic courts. What weight ought the domestic courts to give to the juris-
prudence of the ECtHR that, as we have already noted, is not binding on them
as a matter of international law? The simple answer to this question is that it is
a matter for domestic law to decide.
In the UK, the early approach under the Human Rights Act 1998 – which
was largely similar in Ireland under the 2003 Act – was to treat Strasbourg
jurisprudence as if it were effectively binding, subject to very limited circum-
stances (the mirror effect). This approach remains controversial, even though
the judicial approach to ECHR jurisprudence has certainly moved on signifi-
cantly; so much so that, as Masterman puts it, the ‘mirror’ has been crack’d.55
In spite of this, however, it remains politically popular to claim, in the UK
context, that British courts should decide matters of British law; not ‘foreign’
judges. This criticism, which comes down to a critique of domestic courts apply-
ing ECtHR jurisprudence in their consideration and interpretation of domestic
law, has popular appeal and political power; however, it ultimately misunder-
stands the status quo. First, as already noted, the decisions of the ECtHR rarely
stand in isolation: not only are they subject to (and sometimes emergent from)
dialogue between the Court and domestic courts, but they also frequently
involve the Court taking domestic law into account in order to consider, for
example, whether there is any European consensus on the legal question before
it. Thus, whilst they ultimately emanate from the ECtHR, they are products,
often, of the intermingling of the legal traditions across the Continent, which

55
Masterman, ‘The Mirror Crack’d’, UK Constitutional Law Blog, 13 February 2013, available
at https://ukconstitutionallaw.org/2013/02/13/roger-masterman-the-mirror-crackd/.
190  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

emerges from the make-up of the Court, and its Registry, the arguments put
to the bench and the practice of undertaking comparative law research in the
Court. Second, this argument fundamentally misunderstands Strasbourg deci-
sions as being binding on non-respondent states. Neither the Convention nor
the Human Rights Act 1998 requires domestic institutions to treat ECtHR
decisions as having erga omnes effect. Instead, it was UK courts – particularly
in the case of Ullah56 – that interpreted a UK Act of Parliament (the Human
Rights Act 1998) as effectively requiring these decisions to be treated as qua-
si-binding, albeit subject to some exceptions. Thus, if these judgments are
binding on domestic courts (as we do not think they are) then that is because
this is the interpretation given to a domestic statute by the domestic court
itself. Furthermore, and importantly, even if domestic courts do treat or char-
acterise the ECtHR judgments as ‘binding’ this approach might be adjusted
through domestic law, in a manner that fits with the domestic constitutional
arrangements in place in any given state. To remain with the UK example for
consistency of analysis, it is open to Parliament to take a range of steps to resist
the outcome of an individual case in which the Strasbourg jurisprudence was
treated thus (for example, not to change the law following a Declaration of
Incompatibility under section 4 of the Human Rights Act 1998, or to amend
a law that has been interpreted ‘up’ to Convention compliance by the domes-
tic court), and indeed to make clearer to domestic courts that statute does
not require such an approach (for example, by amendment of the Human
Rights Act 1998). Where state authorities or politicians persist in presenting
the so-called bindingness of Strasbourg jurisprudence as a problem with the
Convention per se, then, they are either inadvertently or purposefully passing
off what is a domestic legal arrangement as the product of a misrepresentation
of what international legal arrangements require.
This is, however, likely to become somewhat more complex if the ECtHR
begins to hand down advisory opinions, as Protocol 16 anticipated. Proto-
col 16, also known as the Protocol of Dialogue, will enter into force after 10
ratifications. It was opened for ratification in 2013 and at the time of writing
(May 2017) it was signed by 11 parties and ratified by 7. Once ratified, this
will allow the highest courts and tribunals of a Contracting Party to request
the ECtHR to give advisory opinions on questions of principle relating to the
interpretation or application of the rights and freedoms defined in the Conven-
tion. It is envisaged that ratifying states will grant some of their higher courts
competence to request advisory opinions from the ECtHR, and that if one of
these courts faces a question of ECHR interpretation which is not clear from
the jurisprudence they would request an advisory opinion from Strasbourg.
The request would first be considered by a panel of five judges in the ECtHR,
and if accepted the Grand Chamber would be convened to deliver an advisory
opinion as requested.

56
R. v Special Adjudicator (ex parte Ullah) [2004] UKHL 26.
 191
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

As Protocol 16 is not yet in force, it is not clear how precise and unambig-
uous these opinions might be. Interestingly, Article 47 of the Convention cur-
rently contains a provision allowing the Court to give advisory opinions but
these opinions cannot deal with the content or scope of the rights enshrined
in the Convention. Given this limited mandate, the Court has only given two
advisory opinions, both relating to election of judges, and both relatively tech-
nical.57 In contrast to this limited jurisdiction under Article 47, the proposed
new advisory opinion mechanism is intended to intensify the dialogue between
the highest national courts and the ECtHR; in principle, such dialogue should
be welcome as it ensures embeddedness of the ECHR in the national states
and develops jurisprudence of the ECtHR in a non-confrontational fashion
which is impossible in contentious cases. Having said that, one might question
whether advisory opinions are capable of enhancing dialogue. Both procedural
and substantive concerns can be raised here.
The procedural concern relates to the questionable utility of advisory opin-
ions in a practical sense. In order to get such an opinion, the highest national
court would have to adjourn the case in which an opinion is sought and wait
until the ECtHR delivers its judgment. That judgment will have to be handed
down by the Grand Chamber consisting of 17 judges, meaning that there will
likely be a considerable delay before the hearing takes place. Should the case in
the domestic court relate to criminal proceedings, the delay might be such as
to even call into question compliance with the defendant’s Article 5 and Article
6 rights. One can readily imagine that a process for expediting the requests
for advisory opinions would be devised in the ECtHR in order to address this
delay, but of course this would have a knock-on effect on the Grand Chamber’s
broader work and cause further delays in hearing the cases referred or relin-
quished to the Grand Chamber already. There is, thus, a real concern about the
impact of advisory opinions on the workload of the Grand Chamber. Whilst
the Court can usually manage its workload by rejecting applications for refer-
ral to the Grand Chamber and, in this case, not accepting requests for advisory
opinions, this seems counterproductive. If the advisory opinion procedure is
designed to enhance dialogue, one cannot imagine that the Court would refuse
many requests. Indeed, should the Court refuse the request for an advisory
opinion and find the case in question before it through an individual complaint
following an autonomous interpretation of the Convention by the national
court, one can imagine a cooling of dialogue and relations were the ECtHR to
find that the national court – which had asked for, and been refused, an inter-
pretation by Strasbourg – had erred in its application of the Convention.

57
Advisory Opinion on Certain Legal Questions Concerning the Lists of Candidates
Submitted with a View to the Election of Judges to the European Court of Human Rights
(No. 1), 12 February 2008; Advisory Opinion on Certain Legal Questions Concerning the
Lists of Candidates Submitted with a View to the Election of Judges to the European Court of
Human Rights (No. 2), 22 January 2010.
192  
GREAT DEBATES ON THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The substantive concern about advisory opinions relates to their likely

effects on the judgments of national courts. Although these advisory opinions
would not be legally binding on the national courts that requested them, we
might reasonably expect that a national court that requested such an opinion
would be unlikely to reject the interpretation therein expressed, but much
might depend on how the advisory opinions are written (whether at a level of
generality or very precisely), whether a culture of judicial dialogue develops
around these advisory opinions, and whether national courts actually develop
a practice of requesting them at all. The success of the whole enterprise, then,
will be very much dependent on how it is embraced, used, and engaged with
by the domestic authorities, in this case the domestic courts.58

Conclusion
In many ways, these debates about the likely usefulness of the advisory opinion
mechanism are microcosms of the debates about the effectiveness of the Con-
vention that we have canvassed throughout this book. At the end of the day,
the ECHR is a joint and collective enterprise by the Contracting Parties and the
bodies of the Council of Europe. Its success relies not only on the approaches
and interpretations of the Court, but also on the reception of the Convention
in domestic systems, the willingness of states to enforce expectations of com-
pliance with one another, and the extent to which the Convention, as enforced
by the ECtHR, can and does strike a balance between the needs for effec-
tive rights protection, predictability and foreseeability of law, dialogue with
national authorities, and evolution to govern novel and complex questions of
contemporary governance. At times this has required innovation, either in the
interpretation of the Convention or in the (remedial and procedural) tools
available to the Court, but that innovation has brought criticism from states
and other actors concerned that the Convention is being taken ‘too far’ by the
Court. Resolving those tensions, whilst still protecting individual rights, is the
core of the challenge faced by the Convention and, in essence, lies at the heart
of almost all of the debates we have considered throughout this book.

Further Reading
de Londras and Dzehtsiarou, ‘Mission Impossible? Addressing Non-execution through
Infringement Proceedings in the European Court of Human Rights’ (2014) 66
International and Comparative Law Quarterly 467.
Dzehtsiarou and Mavronicola, ‘Relation of Constitutional Courts/Supreme Courts
to the ECtHR’ in Max Planck Encyclopedia of Comparative Constitutional Law
(Oxford University Press, 2017).

58
Dzehtsiarou and O’Meara, ‘Advisory Jurisdiction and the European Court of Human
Rights: A Magic Bullet for Dialogue and Docket-Control?’ (2014) 34 Legal Studies 444.
 193
IMPLEMENTING THE CONVENTION: THE EXECUTION OF ECtHR JUDGMENTS  

Dzehtsiarou and O’Meara, ‘Advisory Jurisdiction and the European Court of Human
Rights: A Magic Bullet for Dialogue and Docket-Control?’ (2014) 34 Legal Studies
444.
Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep
Structural Principle of the European Human Rights Regime’ (2008) 19 European
Journal of International Law 125.
Mowbray, ‘An Examination of the European Court of Human Rights’ Indication of
Remedial Measures’ (2017) 17 Human Rights Law Review 451.