What role can the European Court of Human Rights play in a context where human rights are constantly under threat?
As this year marks the 75th anniversary of the Convention for the Protection of Human Rights and Fundamental Freedoms, it is important to emphasize the consistency with which the European Court of Human Rights, since its inception, has worked to preserve democracy, the rule of law, and human rights.
The Court was created with the aim of ensuring the application of the Convention, a treaty signed in 1950 by the member states of the Council of Europe to guarantee respect for fundamental freedoms, regarded as the essential foundation of justice and peace in the world.
The signing of this Convention took place in the aftermath of World War II, which itself marked the failure of the peace efforts during the interwar period, particularly that of the League of Nations. In this regard, in his speech in Zurich, Winston Churchill stated: “If the League of Nations was not successful, it is not because its principles were lacking, but rather because the states that founded it have abandoned those principles. It failed because the governments of that time did not dare to face the truth.”[1].
All proportions kept, this observation allows us to draw a link with the period we are going through today. For a few years, Europe has indeed been the theatre of a progressive erosion of adherence to the principles upheld by the Founding Fathers of the Convention, which are now being called into question. In this context, the Court plays a more essential role than ever by interpreting the Convention in continuity with the values on which it is based, thereby effectively contributing to the protection of human rights.
To evoke the role that the Court is called to play in the current context, it is necessary to grasp the scope of the principles underlying the Convention. It aimed to enshrine, through law, the values asserted by the Universal Declaration of Human Rights of 1948 by developing a regional Charter intended to be its European counterpart. In a Europe then fractured and scarred by the ravages of Nazism and Fascism, the objective was to build an order based on peace and justice. This project, carried by the Council of Europe, materialized through a legal instrument designed to express legal humanism: the Convention for the Protection of Human Rights and Fundamental Freedoms. It is based on the recognition of fundamental rights and freedoms and finds its foundation in what constitutes the very essence of the human person: dignity, the right to life, to privacy and family life, as well as freedom of expression and association.
From its inception, the Convention has thus aimed not only to contribute to the reconstruction of Europe but also to protect it from new drifts. In 1946, and even more so in 1950, the threat of a new division of the continent becomes tangible, particularly with the rise of communist totalitarianism. At the heart of these emerging tensions, an island of humanity rises from the ashes of the two world wars, in the hope of avoiding, to quote Pierre-Henri Teitgen, “the restoration or establishment, in certain countries, of totalitarian dictatorships like those we experienced in Italy and Germany before the war[2]“. This dual purpose of the Convention – to serve both as a founding impetus and a bulwark against authoritarian drifts – allows for a parallel to be drawn with the current period. In the current context, the Court must, more than ever, fully assume a preventive role, to “prevent the return of horror.”
Regarding the form of the Convention, it was drafted in a few weeks, using broad statements similar to the Declaration of the Rights of Man and of the Citizen, with the idea that fundamental rights should not be expressed as a catalogue of duties and obligations, but rather presented in the form of welcoming statements, so as to allow the Convention to evolve with the times and to fulfil its role as a “living instrument[3]“. Thus, judges, through their power of interpretation, must adapt it to the current context.
It must therefore be recalled that the creation of the European Court of Human Rights was not self-evident. Its establishment led to numerous debates, particularly about the appropriateness of endowing the Convention with its own jurisdiction responsible for ensuring compliance. However, as early as 1959 – less than ten years after the adoption of the Convention – the Court became operational.
Since its establishment, it has dealt with more than one million cases and has gradually asserted itself as a true constitutional court for human rights at the European level. By adjudicating individual cases specific to a state, the Court upholds fundamental principles that contribute to the definition of common standards intended to permeate the national legal systems of the 46 member states of the Convention – and which often inspire beyond the European continent.
Today, as at its origins, the European Court of Human Rights remains entrusted with an essential mission: to enhance the legacy of the founding fathers of the Convention based on a common foundation of values established seventy-five years ago.
What are the recent rulings of the European Court of Human Rights that have marked case law? What cases with significant legal stakes are currently pending before the Court and could lead to changes in the European human rights law?
Recently, rulings have marked the case law of the Court in areas deeply rooted in current events, reflecting the profound changes that society is undergoing. In the ruling Verein Klimaseniorinnen Schweiz and others v. Switzerland, delivered on April 9, 2024[4], the Court addressed climate justice directly for the first time, meaning the handling of climate disruption through law.
Even though the Convention does not contain a specific provision concerning environmental protection, the Court has recognized that climate change represents an immediate threat to the effective enjoyment of fundamental rights. One of the major contributions of this ruling also lies in the consideration of future generations. The Court thus acknowledged the possibility of accepting the admissibility of complaints filed on behalf of others. While its case law already contained certain elements related to the ‘locus standi’ of legal persons, a significant step was taken here by admitting the standing of the applicant association. The Court indeed establishes a close link between the particular nature of climate issues, which necessarily diffuse individual rights and affect the interests of future generations, and the use of collective means to address them.
On the substance, the Court has outlined several positive obligations placed on States under Articles 2 – the right to life – and 8 – the right to private life – of the Convention. In this regard, these cases are characteristic of the dynamic interpretation that the Court gives to the Convention, taking into account the current context, to update the requirements in light of contemporary needs.
In another context, the Court has been called upon to rule on numerous cases concerning violence against women, an area in which it has already issued significant judgments[5].
Before addressing recent developments in case law, it is appropriate to highlight the diversity of the violence examined by the Court, ranging from the most extreme violence, in which case Articles 2 and 3 of the Convention may be invoked, to the most symbolic violence, which may result in a violation of Article 8.
In the case of L. and others v. France, the three applicants complained about the lack of effective protection against rape in the French legal framework, as well as the failure to adequately take into account their status as minors and their vulnerable situation at the time of the events[6]. Recalling that consent must “reflect the free will to have a specific sexual relationship, at the time it occurs”, the Court considered that the authorities had failed in their positive obligations requiring them to effectively apply a criminal justice system capable of punishing non-consensual sexual acts, concluding that there had been a violation of Articles 3 – prohibition of torture and inhuman or degrading treatment – and 8 – right to respect for private life – as well as Article 14 – prohibition of discrimination – taken in conjunction with Articles 3 and 8 for one of the applicants, due to the secondary victimisation she suffered.
In your opinion, how important is the professional training of lawyers in the field of fundamental rights? What is so essential about the approach used in the Global Campus of Human Rights courses to integrate the Convention into national judicial systems?
Lawyers[7] are the primary actors in the defense of individual freedoms. They bear the essential responsibility of ensuring effective access to justice and protecting the fairness of proceedings, invoking the rights guaranteed by national and international standards. Their work thus contributes directly to the realization of the law and the consolidation of the rule of law.
As a sign of the paramount importance given to lawyers in the treaty system, it is worth highlighting the opening for signature on May 13 of the first international treaty aimed at protecting the legal profession, on the occasion of the meeting of the Ministers of Foreign Affairs of the Council of Europe, held in Luxembourg: the Council of Europe Convention for the Protection of the Legal Profession. Its aim is to impose on States the obligation to guarantee that lawyers can exercise their professional activities “without being the target of attacks, threats and acts of harassment or intimidation”, or “undue obstruction or interference[8]“.
In this regard, as the Court noted in Morice v. France, “to have faith in the administration of justice, the public must also have confidence in the ability of lawyers to effectively represent litigants [9].”
At the level of the Convention system, an approach such as that proposed by the Global Campus of Human Rights appears entirely beneficial, in light of the principle of shared responsibility.
Can you leave a message for the Global Campus of Human Rights community?
The Court is not the only body to guarantee the protection of human rights within the Convention system. Each legal actor, at their own level, contributes to this great mission.
It is through this principle of shared responsibility, which guides my commitment, that I would like to leave you with a final message. This message, which finds its full expression within the framework of the Convention system, is based on the idea that the effective protection of human rights is not the sole responsibility of international institutions, but also, and primarily, of States, and more particularly, of domestic courts. By virtue of this principle, it is up to every legal actor to promote, while respecting the principle of subsidiarity, this shared responsibility between the Court and States, with the aim of ensuring effective protection of human rights.
The Convention, as bequeathed to us by the Founding Fathers, is thus a common good that binds us all. Actually, this responsibility extends far beyond the walls of the courts.
This shared responsibility must enable us to move forward, hand in hand, to ensure the consistency of the protection of fundamental rights throughout the European legal area. It is not only a matter of safeguarding rights and freedoms, but also of developing them, as the Preamble to the Convention invites us to do.
Together, we will continue to effectively defend the universality of human rights.
I would like to conclude by quoting the optimistic words of Jean-Paul Costa, at the opening of the judicial year marking the 60th anniversary of the Convention, in his seminar entitled “The Convention Belongs to You”: “It seems to me that the European system for the protection of human rights, as it stands and as it has been enriched by fifty years of case law, has all the potential to guarantee it a beneficial future[10].”
[1] CVCE, speech by Winston Churchill (Zurich, 19 September 1946).
[2] Council of Europe, AC, 1st session, volume II, Reports of the Consultative Assembly of the Council of Europe.
[3] Tyrer v. the United Kingdom, n° 5856/72, 25 April 1978.
[4] Verein Klimaseniorinnen Schweiz and others v. Switzerland, n° 53600/20, 9 April 2024 (Grande Chambre).
[5] H.W. v. France, No. 13805/21, 23 January 2025. In this case, the Court found a violation of Article 8 of the Convention, noting that the concept of “conjugal duty” used by national courts to grant a fault-based divorce did not take into account the concept of sexual consent and was incompatible with the positive obligation on States parties to prevent domestic and sexual violence.
[6] L. and others v. France, n° 46949/21 and two others, 24 April 2025.
[7] The Court, in the judgment in Morice v. France, noted: “The specific status of lawyers, intermediaries between litigants and the courts, places them in a central position in the administration of justice. It is in this capacity that they play a key role in ensuring public confidence in the work of the courts, whose mission is fundamental in a democracy and a state governed by the rule of law” (Morice v. France, no. 29369/10, 23 April 2015 (Grand Chamber), §132).
[8] Council of Europe Convention for the Protection of the Profession of Lawyers (CETS No. 226), open for signature by Member States, non-member States which have participated in its elaboration and by the European Union, and for accession by other non-member States in Luxembourg on 13 May 2025, Article 9.
[9] Morice v. France, n° 29369/10, 23 April 2015 (Grande Chambre), §132.
[10] Formal hearing of the European Court of Human Rights on the occasion of the opening of the judicial year, Jean Paul Costa, President of the European Court of Human Rights, 2010.
Photo credit: Council of Europe