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Strengthening the European Court of Human Rights: More Accountability Through Better Legal Reasoning

Final Report Summary - ECHR (Strengthening the European Court of Human Rights: More Accountability Through Better Legal Reasoning)

The project was focused on legal reasoning by the European Court of Human Rights (ECtHR). It provided both critical analysis of consistency and transparency issues in the ECtHR’s judgments, and concrete proposals to improve the ECtHR’s legal reasoning in a number of crucial fields:

1. The delimitation of the scope of human rights provisions. This issue was studied from both an empirical and a theoretical angle. Output on this topic includes the expert seminar ‘the Role of the European Court of Human Rights in Determining the Scope of Human Rights’ (Ghent, 12-13 March 2012), the book Shaping Rights in the ECtHR (Brems and Gerards eds., Cambridge University Press 2013), and the PhD thesis of Maris Burbergs, which includes an in-depth study of the ECHR’s reasoning with respect to the scope of catch-all article 8 of the European Convention on Human Rights (ECHR).

2. The accommodation of the particularities of non-dominant groups. This part of the research focused mostly on cultural and religious minorities and on women, and to a lesser degree on other non-dominant groups (children, persons with disabilities, LGB people). It included an in-depth study of face veil bans in Belgium and France, culminating in the ECtHR judgment of SAS v France, as well as a methodologically innovative exercise of rewriting ECtHR judgments. Other novel approaches included the application of discourse analysis to unearth anti-minority bias in ECtHR judgments, the application of procedural justice (cf. infra) concepts to the ECtHR’s minority case law, the criticial analysis of the new concept of ‘vulnerability’ in the ECtHR’s reasoning, and the development of a human rights approach to stereotyping. Output on this topic includes the conference ‘Mainstreaming Diversity: Rewriting Judgments of the European Court of Human Rights’, held in the building of the ECtHR on 3-4 February 2011, the expert seminars ‘Empirical Face Veil Research’ (Ghent, 9 May 2012), ‘Stereotyping as a Human Rights Issue’ (Ghent, 4 December 2013), and ‘Law’s Imagining of Religion: A Debate Across Disciplines’ (Ghent, 23 September 2014); the books Diversity and European Human Rights (Brems ed., Cambridge University Press 2013) and The Experiences of Face Veil Wearers in Europe and the Law (Brems ed., Cambridge University Press, 2014) and the PhD theses of Alexandra Timmer, Lourdes Peroni, and Saïla Ouald Chaib.

3. Addressing conflicts between ECHR rights. This part of the research developed a script that enables a consistent approach to the increasingly important issue of conflicts between ECHR rights. This was developed in the publications and PhD thesis of Stijn Smet. The output under this heading also includes the expert seminar ‘(How) Should the European Court of Human Rights Resolve Conflicts Between Human Rights? ' (Ghent, 16 October 2014).

4. Transparent proportionality reasoning. This topic was addressed from at least four perspectives. One, the critical analysis of the ECtHR’s use of the ‘margin of appreciation’ doctrine was a recurrent theme throughout the research, and the subject of the expert seminar ‘The Margin of Appreciation Doctrine of the European Court of Human Rights’ (Ghent, 21 May 2010). Two, the coherence between minimum and maximum perspectives to human rights protection was explored in depth in the paper ‘Don’t use a sledgehammer to crack a nut?: less restrictive means in the case law of the European Court of Human Rights’ (Brems and Lavrysen, forthcoming in Human Rights Law Review). Three, the team explored the relevance of social psychology findings on procedural justice for the ECtHR. This resulted amongst others in the papers ‘Procedural Justice in Human Rights Adjudication: the European Court of Human Rights”(Brems and Lavrysen, Human Rights Quarterly, 2013, 176-200) and, ‘Doing minority justice through procedural fairness: face veil bans in Europe’(Brems and Ouald Chaib, Journal of Muslims in Europe, 2013, 1-26) and the expert seminar ‘Procedural Justice in Courts’ (Ghent, 17 January 2014). Four, in his PhD thesis, Laurens Lavrysen critically explores the Court’s reasoning on positive state obligations and proposes a coherent approach to proportionality reasoning for negative as well as positive obligations.

Three researchers already successfully defended their PhD thesis in the context of this project: Alexandra Timmer, Stijn Smet and Lourdes Peroni. All obtained subsequent postdoctoral positions. Three more PhD theses (by Maris Burbergs, Saïla Ouald Chaib and Laurens Lavrysen) will be completed and defended in the course of 2015.

Above all, the ECHR project enabled the PI, Prof. Brems, to develop within the Ghent University Human Rights Centre a dynamic research group focused on the ECtHR. The visibility of this group is the result of the quality and quantity of its publications and of the events it organizes, as well as of its successful blog (www.strasbourgobservers.com) and its third party interventions before the ECtHR .