Lecture How does the ECtHR consider a fundamental rights case?

Janneke Gerards

How does a judge decide whether someones human rights have been violated? In this lecture, I will
discuss how the European Court of Human Rights generally approaches complaints about a violation
of human rights. I will just suppose that the Court has dealt with all the admissibility issues and that
it is now sitting down to decide on the merits of the complaint. Or to put differently, to look at the
content of the case.

In general, the Court examines all human rights complaints in two main phases. First, it needs to
determine which of the rights in the European Convention is applicable to the facts of the case and
whether there is an interference with this right. This is the phase of definition or qualification. And
then, if the Court has found that there is such an interference, it must see if there is a possibility for
justification of that interference. And if there is, it has to examine if there is such a justification in the
case at hand. This is what is called the phase of justification.

I would like to illustrate these two phases definition and justification by using the example of Ms
Boulanger, who is a young Jewish woman living in France. Because of her religious convictions she
only wants to eat glatt meat. That means: meat from animals slaughtered according to very strict
religious rules. But in France there is legislation that prohibits the slaughter of animals that are not
stunned first. The result of this is that it is impossible for Ms Boulanger to obtain the meat that she is
allowed to eat. So she now wants to complain to the European Court of Human Rights.

In dealing with her complaint, the Court first needs to decide if one of the Convention rights is at
stake here. Probably Ms Boulanger will invoke Article 9 on the freedom of religion. Does this
provision really apply to the case? Article 9 does protect freedom of religion and also the freedom to
manifest ones religion. But does it also cover the religious rituals for slaughter? Some will say that
manifestation of religion only relates to direct manifestations, such as religious ceremonies or
praying. And even if a wider definition is chosen, you may wonder if just anything that an individual
considers an exercise of religion really should be classified as such. For instance, not all Jews regard
eating only glatt meat as a religious obligation.
So, clearly the definition phase has its challenges. In fact the Court rather often finds that a
complaint does not fall under the Convention. But suppose it does. In a case similar to that of Ms
Boulanger, for example, the Court found that prohibitions on ritual slaughter do indeed interfere
with the freedom to manifest ones religion. But finding such an interference does not yet mean that
the Convention thereby has been violated. In order to come to that conclusion, the Court will first
need to deal with the second phase of its review. The Court then needs to examine whether there is a
possibility for justification of the restriction.

It is important to note here that not all rights in the European Convention allow for restrictions or
exceptions. As you can easily understand, there is for instance no justification possible for torture, or
inhuman and degrading treatment. So when a Convention right does not allow for justification, the
Court will immediately be able to find that the Convention is violated as soon as it has found that the
Convention applies and the right has been infringed. Yet for most other human rights, the Convention
does allow for restrictions and exceptions.
The case of Ms Boulanger again provides an example of this. Article 9 of the Convention does not
only state the right to freedom of religion in paragraph 1. The second paragraph of this Article clearly
says that restrictions are allowed, as long as they meet the criteria mentioned there. So in dealing
with Ms Boulangers complaint, the Court will have to examine if the French legislation on slaughter
complies with the criteria mentioned in that second paragraph. This means that it has to look at the
arguments the government has presented to defend the interference. Probably, the French
government will argue that the legislation is meant to protect animal welfare. The Court then needs
to decide whether that is a legitimate aim, whether the legislation is really necessary to achieve that
aim, and whether it strikes a fair balance between animal welfare and the right to manifest ones
religion. Only when the Court has made that assessment, it can conclude either that the Convention
has been violated or that the state has sufficiently observed its obligations. So, it is really important
to distinguish between the two phases of the Courts review because of the different possible
outcomes.

Finally, the two-phase approach also has an effect on who needs to prove what in the case at hand. In
the first phase, that of the definition of the applicability of a right, the applicant, the victim of an
alleged human rights violation, needs to show facts and arguments to convince the Court that a
Convention right really has been interfered with. In this phase, the Court builds on classical
principles of Convention interpretation, for instance by reading the relevant article in the light of the
object and purpose of the Convention.
In the second phase the phase of the assessment of the justification of an interference, the burden
of proof shifts to the state. As soon as it is clear that a right has been interfered with, it is up to the
state to show that it had good and convincing arguments for doing so if indeed there is such a
possibility for justification at all. At this stage, the Court will concentrate its assessment on criteria
such as the legitimacy of the aim pursued, but also the necessity and proportionality.
By consistently choosing this two-phase approach, the Court can both effectively probe the
reasonableness of restrictions of human rights and opt for a fair division of the burden of proof.