Assessing the European Court of Human Rights

The ‘Conscience of Europe?’ Navigating Shifting Tides at the European Court of Human Rights

  • Robert Clarke, Ed.
  • Kairos Publishing, 2017; 240 pages, £17.97

(As Dr. Portaru is one of the authors whose work is contained in this volume, this essay is meant as a presentation of the book, rather than a formal review.)

The European Court of Human Rights is a fascinating court in many respects. With a jurisdiction extending over more than 800 million citizens from 47 different Member States, it seeks to secure and protect human rights and fundamental freedoms within that jurisdiction. The European Court of Human Rights (ECtHR) was set up in 1959 by the Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights (ECHR), with the goal of securing individual human rights and preventing the recurrence of the horrors which took place during the two World Wars. Since 1998, the ECtHR has operated as a full-time court to which individuals have direct access.

Throughout the years, however, the ECtHR has come under criticism for its methods of interpretation, its rather erratic methodology, and its lack of predictability in its judgments. The ‘Conscience of Europe?’ investigates the unpredictable jurisprudence in the sensitive and controversial areas of marriage, family, sanctity of human life, and religious freedom.

The contributors to this book are Alliance Defending Freedom (ADF) International lawyers. ADF International is a legal organization dedicated to protecting fundamental freedoms including the right to life, marriage, and the family, and also the freedom of religion. In addition to holding ECOSOC consultative status with the United Nations, ADF International has accreditation with the European Commission, the European Parliament, and the Organization of American States. ADF International also works with the Fundamental Rights Agency of the European Union and the Organization for Security and Co-operation in Europe. ADF International has argued, co-counseled, and intervened in over 50 significant cases before the ECtHR.

As set out in its preface, the book was designed as a manual in preparation of a large meeting bringing together lawyers, NGO leaders, politicians, and other practitioners. The main purpose of the meeting was to consider the contribution of the Council of Europe, particularly the ECtHR, to different areas of law. The book represents the outcome of these meetings, discussions, and many lively debates.

The book is divided into two main parts. The first is a thematic legal analysis of the ECtHR’s jurisprudence in particularly sensitive areas, which could be roughly subdivided into three main topics: the right to life (abortion, euthanasia, medically assisted reproduction, and surrogacy), marriage and family (same-sex “marriage” and parental rights), and religious freedom (church autonomy, religious symbols, freedom of speech, and “hate speech”).

The second part adopts a macro approach. This section provides a useful overview of the ECtHR in practice, looking into its structure and subdivision into various chambers, its workload, and some statistics regarding the type and variety of cases submitted including a breakdown of those cases deemed admissible, and rejected. It then gives a brief overview of how to engage with strategic litigation, election of judges, tips and advice on how to make a successful application to the ECtHR, and how judgments are enforced in practice. 

Before proceeding with the legal analysis of the various thematic areas, the book sets out a chapter offering a critique of the interpretative methods upon which the ECtHR relies heavily, and which have resulted in controversial judgments on moral and ethical issues. The research scrutinizes three particular methods: the “living instrument” (developing or dynamic) interpretation, the “European consensus,” and the “margin of appreciation.” This chapter explores how the ECtHR regularly employs the dynamic interpretation of the ECHR to create rights that had not been foreseen at the moment of the signing of the convention, and that thus go well beyond the original meaning of the ECHR. Although the ECtHR cannot, in principle, create new rights which are not enshrined in the ECHR, it can use interpretative methods to identify sub-categories of rights or related aspects of already enshrined rights. However, the line between “new rights” and “rights which have existed but have not been spelled out” is so fine, that academics and practitioners raise doubts as to whether the dynamic interpretation of the ECHR actually does create new rights.

To illustrate this point, the author cites three case examples: Koch v. Germany,[1] Costa and Pavan v. Italy,[2]and Gross v. Switzerland.[3]In the first one, the ECtHR found a violation of the right to respect for private and family life (Article 8 of the ECHR) because Germany, having outlawed the administration of lethal poison, refused to consider a request for lethal poison. For the first time, the ECtHR recognized procedural guarantees relating to a right whose substance had not yet been established. The ECtHR stated: “Article 8 of the ECHR may encompass a right to judicial review even in a case in which the substance right in question had yet been established.”[4]

In the second case, the ECtHR found a violation of the same right, because the Italian bodies refused to allow medically assisted reproduction and genetic screening due to concerns over eugenic selection and the impact on the dignity and freedom of conscience of medical practitioners.

In the third case, though ultimately thrown out by the Grand Chamber for procedural reasons, the ECtHR judges considered that “the applicant’s wish to be provided with a dose of sodium pentobarbital allowing her to end her life falls within the scope of her right to respect for her private life under Article 8 of the ECHR.”[5] In other words, the judges considered that the scope of a person’s right to private life includes the right to end that life by poison. Consequently, had this ruling stood, the ECtHR would have required States to introduce clear guidelines as to the conditions under which individuals could receive a lethal dose to end their lives.

The author then engages in a critique of the margin of appreciation doctrine, taken together with the so-called consensus method of interpretation. In simple terms, the margin of appreciation allows Member States to retain a certain margin of maneuver, particularly in areas of moral, cultural, or ethical issues. The narrower the margin of appreciation, the less power Members States have to implement a view different from that of the majority of the Council of Europe Member States. The author criticizes this approach, which, he considers, “is manifestly unsound and very dangerous . . . as the ECtHR exercises total discretion in how it finds or avoids claims to consensus.” The author also underscores the fact that the foundational premise of seeking consensus runs contrary to the human rights theory: the protection of the minority against the power of the majority.”[6] The author concludes persuasively: “Why should the mere fact of a majority of countries legislating in one direction force the remaining minority to conform to the trend—especially in the absence of a clear substantive right based in the text of the ECHR?”[7]

Having explored the interpretative tools of the ECtHR, the book dives into a thorough legal analysis of different themes related to the right to life, marriage and family, and religious freedom.

The ‘Conscience of Europe?’ seeks to explore the apparent contradiction between, on the one hand, the express protection of the right to life in the ECHR and other international and European human rights instruments and, on the other, the rise of practices such as euthanasia, surrogacy, and medically assisted reproduction. These practices erodethe right to life and bring less consistency in the application of this right within the ECHR jurisdiction.

The book starts with an analysis of the ECtHR’s approach to abortion. In the area of abortion, the ECtHR has consistently acknowledged the sensitive issue of when life begins and thus has equally consistently afforded Member States a wide margin of appreciation. The book also explores various aspects related to the practice of surrogacy.

Very worrying is the possible development of a so-called “right to die” as a negative aspect of the right to life in the ECHR or as part of the right to private life. Although this was previously ruled out in an older case, Pretty v. UK,[8] the question seems to have resurfaced and been taken into serious consideration in the ECtHR’s decision in a case concerning a patient with severe brain injury, Lambert and others v. France.[9] The author of this chapter highlights how the ECtHR’s decision in the Lambert case “sends a very confusing message” by affirming the domestic tribunal’s decision to stop providing nutrition to Vincent Lambert.

The ‘Conscience of Europe?’ provides a much-needed overview of the ECtHR’s jurisprudence in the area of marriage and family. Based on case law and the ECtHR’s interpretation of the ECHR, the book shows that there is no international right to same-sex “marriage” and that the ECtHR, together with other courts and institutions, recognize Member States’ competence to regulate in this area. This notwithstanding, the book offers a critique of the apparent current erosion of this right, stemming from the ECtHR’s call on Member States to introduce some form of legal recognition for same-sex couples. In short, the research shows how the ECtHR has used the notion of “discrimination” based on sexual orientation or sex to challenge Member States’ competence in legislating marriage, family, and adoption.

The book also tackles the topic of marriage and family from a slightly different angle: the role of parents and State authorities in educating children, particularly regarding the rather sensitive areas of comprehensive sexual “education,” school class opt-outs, and homeschooling. This chapter highlights the robust international law and jurisprudence that exists to protect parents’ rights to be the primary educators of their children. According to the current laws in place, any limitation on parental rights should be exceptional, assessed objectively by looking into the concrete context in which it is carried, and should not be over-reaching.

Based on these robust protections of parental rights, State institutions should assist parents in the education process, not trump parental rights. Schools must seek parental cooperation and not artificially displace the rights of children and the rights of parents by imposing on children an education contrary to the one they receive from their parents. Given the scope of the protection of parental rights under international law, the ECtHR and national practitioners should allow parents to home-school their children and/or permit parents to opt-out or remove their children from comprehensive sexual “education” classes, when the content of such classes contradicts deeply held parental convictions. Parental rights cannot be degraded to a qualified parental right to educate children only in their free time.

One of the most heated debates in Europe concerns the right of citizens to display religious symbols in public spaces or at work. The ECtHR and public debate shows a broad understand of religious symbols including but not limited to religious clothing, headgear, crucifixes, and many other religiously inspired symbols. In dealing with religious symbols, the ECtHR has generally greatly relied on the margin of appreciation and national secular orders, stating that the limitation on the wearing of religious symbols is subjected to variables and factors such as neutrality, secularism, and European values and principles. However, in each of its religious symbols judgements, the ECtHR has issued findings whilst consistently avoiding the question regarding its precise understanding of secularism. This chapter offers a critique of the ECtHR understanding of religious symbols as a tool for proselytism and the reluctance to advance an inclusive approach to religious symbols.

In carving out the boundaries of the public display of religious symbols whilst progressively purging public space of such symbols, the ECtHR is faced with freedom of speech and freedom of conscience issues. Although treated in separate chapters, The ‘Conscience of Europe?’ shows that such rights are inherently interrelated and when one is eroded or suffers a mutation in its fundamental understanding in society, all others are affected.

Freedom of conscience based on religious and non-religious deeply held moral beliefs has gradually deteriorated in Europe. This is highlighted by the fact that several E.U. member states do not fully guarantee freedom of conscience, including the right to conscientious objection.

In a number of European countries, staying true to deeply held moral beliefs may have severe consequences: suspension or interruption of employment contracts, financial costs, loss of reputation due to negative media coverage, which can last for a lifetime, and social exclusion. Faced with such legal frameworks where one constantly must balance one’s rights and interests, individuals are faced with the impossible choice of either violating their deeply held convictions, or risking their livelihoods and careers by staying true to them. Many such conflicts are visible in the cases of midwives, who conscientiously object to life-ending medical procedures, such as abortions. These situations represent a challenge for society, individual human rights, and democracy. This is precisely what this chapter seeks to address in putting forward an innovative legal test to identify conscience claims in practice, while advancing a scheme of protection for practitioners.

Last but not least, the book assesses to what extent speech is still free in the European context, examining particularly the relationship between the loosely drafted and far-reaching “hate speech” laws, and the fundamental right to freedom of expression. The author of this section argues that while freedom of expression can be legitimately limited in specific situations, limits on speech should remain an exceptionthat should be narrowly construed, well-defined, proportionate, legitimate, and pursuing a clear aim. Additionally, any exceptional restriction on speech must ensure that less restrictive means do not exist. In other words, limitations should be mindful of safeguarding the free exchange of ideas and opinions.

Finally, in order to prevent cases from ending as mere statistics amongst the many cases declared inadmissible by the ECtHR, The ‘Conscience of Europe?’ provides helpful procedural guidance to practitioners interested in filing cases. To that end, it offers a much needed toolkit on how to craft a successful ECtHR application either when representing a party or when intervening as a third party (amicus curiae). The book also advises on how to make submissions that can truly assist the Court and make a difference in defending marriage and family, and the right to life.

The ‘Conscience of Europe?’ is a must-read for researchers, lawyers, and policy-makers from a variety of fields, but primarily for those with an interest in protecting marriage and family, the right to life, and religious freedom. By employing a critical legal assessment, The ‘Conscience of Europe?’ offers a solid overview of where the ECtHR stands on issues that have moral and ethical implications, and, where needed, puts forward a critique of the tools of interpretation which have resulted in controversial judgments eroding marriage and family, the right to life, and religious freedom.

Adina Portaru, LLM and Ph.D., serves as Legal Counsel for ADF International in Belgium, advocating for religious freedom at the European Union. 

  • [1]     Koch v. Germany, App no 497/09, July 19, 2012.
  • [2]     Costa and Pavan v. Italy, App no 54270/10, August 28, 2012. 
  • [3]     Gross v. Switzerland, app no 67810/10, 14 May 2013.
  • [4]     Costa and Pavan v. Italy, para 53. Emphasis added.
  • [5]     Gross v. Switzerland, para 60.
  • [6]     Paul Coleman, “Evolution, Consensus, and the Margin of Appreciation,” in Robert Clarke (ed.), The ‘Conscience of Europe?’ (St. Paul, MN: Kairos, 2017),22-23. 
  • [7]     Ibid., 23. 
  • [8]     Pretty v. UK, App no 2346/02, April 29, 2002.
  • [9]     Lambert and others v. France [GC], App no 46043/14, June 5, 2015.