Legitimate Aims, Illegitimate Aims and the E.Ct.H.R.: Changing Attitudes and Selective Strictness

AutoreNecdet Umut Orcan
CaricaMarmara University
Pagine7-40
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hps://doi.org/10.6092/issn.2531‐6133/14860
Received: 25 Aug. 2021 | Accepted: 4 Oct. 2021 | Published: 13 May 2022
A
Legimate Aims, Illegimate Aims and the E.Ct.H.R.: Changing
Atudes and Selecve Strictness
N
ECDET
U
MUT
O
RCAN
Necdet Umut Orcan, LL.M. in Public Law at the Marmara University (Turkey), is Ph.D. candidate
in Public Law at the Galatasaray University - Institute of Social Sciences (Turkey) and Research
assistant at the Marmara University, Law School - Department of Human Rights(Turkey). He is
also Visiting Scholar at the University of Wisconsin-Madison - Global Legal Studies Center(U.S.A.).
The author would like to thank Osman Doğru for many insightful discussions which helped shape
the idea behind this paper,and for his feedback throughout the writing process. The author is also
grateful to Esra Demir-Gürsel and Tolga Şirin for their valuable comments on earlier drafts of this
article. All errors remain of the author.
@umut.orcan@marmara.edu.tr
ID0000-0002-9161-1928
ABSTRACT
This article aims to trace the recent changes in the case law of the European Court of Human
Rights, pertaining to the legitimate aim test, which has so far not been appropriately considered
in existing jurisprudence. It first shows that the legitimate aim test is not just a paper tiger, and
has a bigger bite than it has been given credit for, especially for the last ten years. Furthermore,
despite its “procedural turn”, the Court has recently been more inclined to take the legitimate
aim disputes to a factual level by questioning the governments’ assertions of legitimate aims with
regard to not only their legal justificatory capacities but also as to their factual accuracy.
However, this shift towards a stricter, more sceptical approach is only observable against certain
member states. This finding aligns with recent scholarship on the Court’s differentiated
approach towards Member States, often called “the variable geometry”.
KEYWORDS
Legitimate Aims; European Court of Human Rights; European Convention on Human Rights; Bad Faith
Jurisprudence; Selective Strictness
EDITORIAL NOTE
The Bluebook rules (21st ed., 2020) require the avoidance of a final bibliographyor list of cases.
May the reader note that - given the peculiar expressivity of Annex I - he will find a list of cases
at the end of the article. For further details, please refer to the footnote 68.
7
LEGITIMATE AIMS, ILLEGITIMATEAIMS AND THE E.CT.H.R.
TABLE OF CONTENTS
Introduction ............................................ 8
1. Legitimate Aim Violations: Numbers, Forms and Changes . . . . . . . . . . . . . . . . . . 12
1.1. The Numbers: Is the L.A.T. Really a Paper Tiger? .................. 13
1.2. DifferentTypes of LegitimateAim Violations . . . . . . . . . . . . . . . . . . . . 17
1.2.1. Type A Violations: No Aim Invokedby National Authorities . . . . . . . . . 17
1.2.2. Type B Violations: No Justification of Measure through Pursued Aim . . . . 19
1.2.3. Type C Violations: No Actual Pursuit of Invoked Aims . . . . . . . . . . . . 21
1.2.3.1. Cases Where The Ulterior Purpose Was Not Identified (Type C.1
Violations)............................. 22
1.2.3.2. Cases Where an Ulterior Purpose Was Identified (Type C.2
Violations)............................. 24
1.3. The Changing Mien of the Legitimate Aim Violations Over Time . . . . . . . . . 28
2.ASelectiveStrictness?...................................... 30
Conclusion ............................................. 34
Annex1............................................... 36
INTRODUCTION
The institution and the case law of the European Court of Human Rights [hereinafter
E.Ct.H.R.] has undergone numerous significant changes over the years. These changes
were often made in response to criticisms and emerging problems and they have
attracted considerable academic attention.1
1See generally, J
AMES
A. S
WEENEY
, T
HE
E
UROPEAN
C
OURT OF
H
UMAN
R
IGHTS IN THE
P
OST
-C
OLD
W
AR
E
RA
:
U
NIVERSALITY IN
T
RANSITION
(2013). E
D
B
ATES
, T
HE
E
VOLUTION OF THE
E
UROPEAN
C
ONVENTION ON
H
UMAN
R
IGHTS
(2011). J
ONAS
C
HRISTOFFERSEN
& M
IKAEL
R
ASK
M
ADSEN
, T
HE
E
UROPEAN
C
OURT OF
H
UMAN
R
IGHTS BETWEEN
L
AW AND
P
OLITICS
(2011). ; Laurence R. Helfer, Redesigning the European Court of Human Rights: Embeddedness as a Deep
Structural Principle of the Human Rights Regime, 19 E
UR
. J. I
NT
L
. L. 125 (2008). John Hedigan, The European Court
of Human Rights: Yesterday, Today and Tomorrow, 12 G
ER
. L. J. 1716 (2011). Kanstantsin Dzehtsiarou, European
Consensus and the Evolutive Interpretation of the European Convention on Human Rights, 12 G
ER
. L. J. 1730 (2011)
; Noreen O’meara, Reforming the ECtHR: The Impacts of Protocols 15 and 16 to the ECHR, I
COURTS
W
ORKING
P
APER
S
ERIES
N
O
:31 (2015); Evaluation Group, Report of the Evaluation Groupto the Committee of Ministers on the European
Court of Human Rights at 39 (2001); Steven Greer, What’sWrong with the European Convention on Human Rights?,
30 H
UM
. R
TS
Q. 680 (2008). Lord Woolf, Review of the Working Methods of the European Court of Human Rights 67-
70 (2005); Marie-Aude Beernaert, Protocol 14 and new Strasbourg Procedures: Towards Greater Efficiency? And at
What Price?, 5 H
UM
. R
TS
L. R
EV
. 544, 545 (2004). Eur. Consult. Ass.,Implementation of judgments of the European
Court of Human Rights, Doc. No. 2075, at 7 (2015). See also Helen Keller & Cedric Marti, Reconceptualizing
Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments 26(4) EUR. J.
INT. LAW 830 (2015); George Stafford, The Implementation of Judgments of the European Court of Human Rights:
Worse Than You Think Part II: The Hole in the Roof, EJIL:Talk! (2019); L.ucy Moxham, Implementation of ECHR
judgments have we reached a crisis point?, UK Human Rights Blog (2017); Robert Harmsen, The Reform of the
Convention System: Institutional Restructuring and the (Geo-)Politics of Human Rights in T
HE
E
UROPEAN
C
OURT OF
H
UMAN
R
IGHTS BETWEEN
L
AW AND
P
OLITICS
119 (Jonas Christoffersen & Mikael Rask Madsen eds., 2011) ; Lize
R. Glas, From Interlaken to Copenhagen: What Has Become of the Proposals Aiming to Reform the Functioning of the
European Court of Human Rights 20 H
UM
. R
TS
L. R
EV
. 121, 128 (2020) ; L.R. Glas, “Unilateral Declarations and
the European Court of Human Rights” 25(5) M
AAST
. J. E
UR
. Comp. L. 629 (2018).
8
2022] UNIVERSITY OF BOLOGNA LAW REVIEW [Vol. 7:1
Among these changes, arguably the biggest, is the Court’s recent shift towards a more
deferent stance in favour of domestic authorities. This shift came after some Member
States’, led by the U.K.,2voiced growing criticism towards the Court with regard to its
alleged “intrusive” and “expansionist” approach that disregards its subsidiary function.3
As a response to these criticisms,4the Court’s case law has undergone a
well-documented change, which is often called the “procedural turn” of the E.Ct.H.R. .5
In brief, this “procedural turn” marks the Court’s transition from a court that is mostly
concerned with the substance of the arguments and their justificatory capacities for the
limitation in question, towards a court that primarily focuses on the quality of the
national decision-making process leading up to that limitation, without giving decisive
importance to the outcome of the decision made.6This new deferent approach provides
more substantive freedom to national decision-makers, provided that they make an
assessment “in conformity with the criteria laid down in the Court’s case law.7That
being so, there is growing doubt in the literature whether all Member States enjoy this
recent freedom. There are both qualitative and quantitative studies showing that after
the “procedural turn”, the Court has started to apply different standards for different
2Foran elaborate analysis on the criticisms of the European Court of Human Rights in the United Kingdom, see
Roger Masterman, The United Kingdom: From Strasbourg Surrogacy towards a British Bill of Rights? in C
RITICISM OF
THE
E
UROPEAN
C
OURT OF
H
UMAN
R
IGHTS
:
SHIFTING THE
C
ONVENTION SYSTEM
:
COUNTER
-
DYNAMICS AT THE NATIONAL
AND
EU
LEVEL
447 (Patricia Popelier et al. eds., 2016).
3See S
ARAH
L
AMBRECHT
,Assessing the Existence of Criticism of the European Court of Human Rights, in Popelier et al.,
supra note 2, at 511.
4Some authors find this change to be more linked to the case overload rather than criticism. Oddný M.
Arnardóttir,Rethinking the TwoMargins of Appreciation, 12 E
UR
. C
ONST
. L. R
EV
. 27, 51 (2016).
5See generally, J
ANNEKE
G
ERARDS
& E
VA
B
REMS
, P
ROCEDURAL
R
EVIEW IN
E
UROPEAN
F
UNDAMENTAL
R
IGHTS
C
ASES
(2017); P
ATRICIA
P
OPELIER ET AL
., The Court as Regulatory Watchdog: The Procedural Approach in the Case-law of
the European Court of Human Rights in T
HE
R
OLE OF
C
ONSTITUTIONAL
C
OURTS IN
M
ULTILEVEL
G
OVERNANCE
(Patricia
Popelier et al. eds., 2012); Oddný Mjöll Arnardóttir, The ‘Procedural Turn’ under the European Convention on
Human Rights and Presumptions of Convention Compliance, 15 I
NT
L
J. C
ONST
. L. 9 (2017); B
A
ş
AK
Ç
ALI
,Towards a
Responsible Domestic Courts Doctrine? The European Court of Human Rights and the Variable Standard of Judicial
Review of Domestic Court Judgments in S
HIFTING
C
ENTRES OF
G
RAVITY IN
H
UMAN RIGHTS PROTECTION
(Oddny Mjö
Arnardóttir & Antooine Buyse eds., 2016); Eva Brems & Laurens Lavrysen, Procedural Justice in Human Rights
Adjudication: The European Court of Human Rights, 35 H
UM
. R
TS
. Q. 176 (2013); Patricia Popelier & Catherine
Van De Heyning, Procedural Rationality: Giving Teeth to the Proportionality Analysis, 9 E
UR
. C
ONST
. L. R
EV
. 230
(2013); Robert Spano, The Future of the European Court of Human Rights - Subsidiarity, Process-based Review and
the Rule of Law, 18 H
UM
. R
TS
. L. R
EV
. 473 (2018). Leonie M. Huijbers, The European Court of Human Rights’
Procedural Approach in the Age of Subsidiarity, 6 C
AMB
. I
NT
L
L.J. 177 (2017); Patricia Popelier & Catherine Van
De Heyning, Subsidiarity Post-Brighton: Procedural Rationality as Answer?, 30 L
EIDEN
J. I
NT
L
L. 5 (2017); Robert
Spano, Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity, 14 H
UM
. R
TS
. L. R. 487
(2014).
6See J
ANNEKE
G
ERARDS
,Procedural Review by the ECtHR: A Typology in G
ERARDS
& B
REMS
,supra note 5, at 128.
7A search for this phrase and its counterpart in French “dans le respect des critères établis par la
jurisprudence de la Cour” in HUDOC database returns a total of ninety-three judgments, all decided after
2012.
9

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