Value neutrality of the European Court of Human Rights

Abstract

European Convention on Human Rights is considered as one of the most effective human rights regime in the world. It is the primary role of the European Court of Human Rights to ensure the observance of the engagements undertaken by the High Contracting Parties to the Convention and its Protocols by interpreting and applying the Convention. In order to enhance monitoring and enforcement of compliance with the Convention regime by the States, the Court has framed “a sophisticated jurisprudence, whose progressive tenor and expansive reach has helped to propel system forward. It t has become an important autonomous source of authority in European human rights system with a significant impact on the domestic legal systems of the members thereof. Accordingly, the Court has been strongly criticised by all kinds of actors for transcending its restricted role of determining whether a State has encroached upon a Convention right and entering the realm of the legislature through the judicial activism. On the other hand, the Court has been equally criticised for using the margin of appreciation doctrine as a pro-government tool in relation to morally, ethically, politically or otherwise highly controversial issues. While both sides of the criticism - expansion of the role beyond strictly determined confines and separate examples of restrictive approach - have been examined and criticised extensively, much less is spoken of the Court’s decency as such. Accordingly, this thesis examines the value neutrality of this highly authoritative and influential Court and covers both major stages of case examination: determination of the scope of the Convention provisions and assessment of justifiable limitations. Having regard to the limited scope of the thesis, the analysis is narrowed down to two different areas, corresponding the major steps of case examination: defining the protective scope of the Convention provisions is particularly relevant with respect to the institution of marriage; whereas, the issue of permissible limitations, albeit also crucial in connection with marriage, is predominantly surfaced in relation to religious symbols