Chapter 2 Guidance on answering the exam questions

1. Critically discuss the view that the ECtHR has become a constitutional court for Europe rather than a final backstop aimed at preventing the rise of undemocratic and oppressive governments.

• This question requires an understanding of the development of the case law of the ECtHR and relates to some of the themes of both support and criticism of the court.
• You could start by considering the argument that, in 1950, the purpose of the Convention and Court was to be part of the apparatus for preventing the rise of totalitarianism.
• Earliest cases, such as Lawless v Ireland, might support that proposition as might structural features – in particular the part-time court which was not expected to hear a huge number of cases.
• However, note quite early cases (such as Marczx v Belgium concerning legitimacy laws) which indicate the Convention rights could be applied against reasonably well-functioning democracies.
• Also, discuss the notion of the “evaluative” approach to interpretation adopted by the ECtHR – the idea that the Convention is a “living instrument” which develops with and adapts to the times.
• In particular, the ECtHR is concerned not just with basic legal frameworks but also with the detail of individual cases. The development of the pervasive doctrine of proportionality is important here.
• On this basis you can consider some of the criticisms made of the Court and its doctrines. In particular, that, through the doctrines of “living instrument” and “proportionality”, the Court has become too much like a court of appeal and the primary responsibility of the states to protect human rights has been lost.
• This is an argument of principle but it has also had the practical consequence of extraordinary case-overload at the ECtHR which has had to be dealt with. There has, therefore, been a major programme of reform aimed at reducing the backlog.
• However, reformers have also sought to introduce features, such as the “significant disadvantage” requirement and the addition of references to subsidiarity and margin of appreciation in the Preamble in Protocol 15.
• On the other hand, defenders of the ECtHR will point to the margin of appreciation doctrine which, depending on the circumstances, means that the Court defers to the judgement of the national authorities on issues such as whether an interference with a right is “necessary in a democratic society”.
• In conclusion, you could note that this issue relates to basic assumptions about human rights. Whether or not it is reasonable to leave too much to governments given that, as democratic governments, they may be tempted to violate rights in order to satisfy popular wishes. On the other hand, is the precisely the argument that democracy is supposed to be about giving effect to the popular will. On this view there ought to be a seriousness threshold before issues come before the court, at the least. Democrats fear that too much is decided by judges; defenders of the system assert the need to protect the rights which have been agreed.

2. Josephine Bloggs, who lives in the UK, alleges that she has been a victim of a violation of her rights under the ECHR. Are her claims admissible (do not discuss their substance unless relevant to admissibility)?

1. She complains that her privacy has been invaded when she was photographed in the street, violating Article 8. The photographer immediately destroyed the film, but Josephine feels there is an important principle at stake.
2. She complains that, under a court order relating to anti-social behaviour, she is prevented from visiting the town where her friends live and this violates Article 2 of the Fourth Protocol.
3. Her lawyer advises her that taking her cases through the UK courts is pointless because of clear Court of Appeal decisions, so she goes straight to Strasbourg.

• Introduce your answer. The question refers to a number of issues involving admissibility of cases before the ECtHR. This is important because there is a huge number of applications but only a small number are subject to adjudication by the Court. Most applications are inadmissible.
1. This case could be admissible except that, since Protocol 14, the applicant must show he or she has suffered a significant disadvantage (unless an important human rights principle is at stake). You should consider and apply this.
2. Here the issue is that the application is inadmissible “ratione materiae” – the Fourth Protocol has not been ratified by the UK and accepted as an obligation binding on it. A good answer would also distinguish this interference with her freedom of movement from a deprivation of liberty (which the question suggests JB has not suffered).
3. Here the issue is whether JB has exhausted her domestic remedies. Although there are significant exceptions to this principle, the facts as given in the question suggest that she should have taken her case through the UK courts and appealed to the UKSC which has the power to overrule case law laid down by the Court of Appeal.