Once the Court has established that an interference with a Convention right meets the requirement of lawfulness, the second main requirement for the interference to be justifiable is that it pursues a legitimate aim. The express limitation clauses of the Convention further do not only require the aims pursued to be legitimate, but they also provide exhaustive lists of the aims which can legitimately be served. Although the test of legitimate aim does not play a large role in the Court’s review of justification for restrictions, this Chapter addresses the application and interpretation of the legitimate aim requirement. Special attention is paid to the situation of a discrepancy between stated and real aims and the situation where more than one aim is pursued. In addition, Article 18 ECHR is discussed, which states that restrictions cannot be applied for any other purpose than that for which they have been prescribed. The Merabishvili case and the requirements defined therein are central to this discussion.

In Stage 3 of its review the Court has to examine if the contested interference can be held to be justified by objective and convincing reasons. One of the requirements for a restriction to be justifiable is the lawfulness requirement. The requirement has been given an autonomous and substantive reading by the Court, which entails that a restriction must have a basis in domestic law, the legal basis must be sufficiently accessible, the interference must be sufficiently foreseeable, and it must not be arbitrary. In addition, in particular in cases regarding surveillance, searches and the exercise of other discretionary powers, the Court has required that procedural safeguards must be offered. All these requirements are discussed in this chapter.

This chapter offers an introduction into the composition of and the procedure before the European Court of Human Rights.The development and the various reforms of the current supervision system are briefly explained, just like the composition of the Court and the various formations in which it sits (Single Judges, Committees, Chambers and Grand Chamber). As the Court can only look into the merits of a case when an application is admissible, the various admissibility requirements are explained in some detail. In particular, attention is paid to the different jurisdictional requirements (ratione personae, ratione materiae, ratione temporis and ratione loci), such as the victim requirement and State responsibility. In addition, several material and formal admissiblity requirements are addressed. The chapter also explains the main elements of the procedure before the Court. It pays special attention the binding nature, contents and consequences of the Court’s decisions, judgments and advisory opinions. Finally, the system of the Committee of Ministers’ supervision on the execution of judgments is addressed.

The principles of effectiveness and subsidiarity offer important guidance to the ECtHR. In interpreting the terms and notions of the various Convention provisions and in assessing the interference and justification of interferences, the Court further makes use of a number of other general principles and starting points. This chapter explains the most important of these principles, connecting them with the two main principles of effectiveness and subsidiarity. Attention is paid to the relevance of the rules of interpretation provided by the Vienna Convention on the Law of Treaties and the special nature of the Convention as a ‘law-making treaty’. Subsequently, three principles are discussed that are of importance to the interpretation and determination of scope of the Convention. These are the notion that the ECHR is a ‘living instrument’, which must be interpreted in an evolutive and dynamic manner, the principle that the Convention should be interpreted in line with the underlying values of the Convention (‘meta-teleological interpretation’ in light of the principles of human dignity, personal autonomy, democracy, and pluralism) and the principle of autonomous interpretation.

It is not possible under Article 34 ECHR to lodge individual applications at the Court to complain about an interference with one’s Convention rights caused by non-State actors. Nevertheless, the Court has found various ways to extend the protection offered by the Convention rights to horizontal relations.

This chapter focuses on the scope of protection of the Convention in vertical and horizontal relations. First, the direct Convention responsibilities of the States in horizontal relations are explained. The point at which an organisation or institution can be regarded as a ‘public authority’ to be held directly accountable for respecting the Convention is discussed and it is explained that public authorities are always obliged to act in accordance with the Convention, even if they behave as private parties. Subsequently, it is set out how the Convention may have indirect horizontal effect. Attention is thereby paid in particular to the positive obligations of the State to provide effective regulation and enforcement in such horizontal relationships, as well as to the obligations for national courts to take the Convention rights into account when deciding on private law matters.

The Convention contains an inherent tension between, the one hand, the aim to provide effective protection of Convention rights and, on the other hand, the need for the ECtHR to allow sufficient freedom to the States and respect their special abilities and powers to make choices and decisions, also in light of the inherent indeterminacy of the Convention provisions. It is against this backdrop that the Court has developed its famous yet complex margin of appreciation doctrine, on which this chapter is focused. Insight is given into the development of this doctrine in the Court’s case law, its main rationale and functions, and the types of cases where the doctrine is (and is not) applied. In addition, the main factors determining the scope of the margin and their interaction are explained (common ground facter, better placed factor, nature and intensity of the interference). Finally, some attention is paid to the difference between doctrine and reality in the Court’s case law.

The fundamental rights laid down in the Convention can generally be classified as civil and political rights and liberties. These oblige the States to abstain from undue interference with the Convention rights and freedoms and therefore are called ‘negative obligations’. At the same time, the Court has recognised that States have so-called ‘positive’ obligations to provide effective protection of the Convention rights. The Court’s recognition and development of positive obligations has significantly contributed to the overall strength and scope of the protection offered by the Convention. This chapter focuses on the ways in which the Court generally defines positive obligations, i.e. applying the fair balance test, the reasonable knowledge and means test, an effectiveness-based test, and a test based on the Court’s own precedents. The Chapter further discusses different types of positive obligations - in particular substantive, preventive and procedural positive obligations - and the relation between positive and negative obligations. In addition, the incorporation of social and economic rights in the Convention through positive obligations is addressed.

For a restriction of a Convention right to be justified, it is not enough for it to have a sound legal basis and to pursue a legitimate aim. Restrictions of derogable Convention rights also must be shown to be ’necessary in a democratic society’ or ’proportionate’. Over time the Court itself has also defined a variety of specific tests and formulas to give shape to the tests of necessity and proportionality, which are all addressed in this chapter. The general test of necessity is explored first, paying special attention to the related pressing social need test, the ’relevant and sufficient’test and the least intrusive means test. Furthermore, the chapter discusses the fair balance test (a variant of proportionality in the strict sence) and some related tests, such as the individual and excessive burden test and core rights review. Attention is also paid to the related question of whether balancing should always be conducted on an individual and concrete basis on the national level, or whether blanket rules may sometimes suffice. Lastly, it is explored how procedural review can complement the Court’s substantive reasonableness review of restrictions.

This chapter discusses several key aspects and basics of the European Convention on Human Rights. First, it explains two main principles underlying the ECHR system as a whole: the principle of effective protection of fundamental rights and the principle of subsidiarity. In addition, the double role of the Court within the Convention system is set out, which is to offer individual redress or individual justice when Convention rights have been violated on the national level, and to clarify Convention rights standards (which is the Court’s constitutional role). The Chapter further addresses the three main stages of the Court’s review, which correspond to the structure of most of the Convention rights: (1) deciding on the applicability and interpretation of a Convention right; (2) determining if there is an interference with the right; (3) reviewing whether a justification can be given for this interference. Finally, a typology is provided of Convention rights according to the possibilities for restricting these rights, e.g. paying attention to absolute, non-derobable rights and distinguishing between different types derogable rights.

This Chapter first explains what the ECtHR regards as the object of review in cases where an alleged violation of the Convention is caused by legislation: is this the legislation as such (which would invite general and more abstract review), or is it the individual decision applying this legislation (which would invite individualised and more concrete review), or perhaps both? The chapter then turns to discussing how the Court has tried to reconcile its task of offering individual justice and general constitutional interpretations. Specific attention is paid in this regard to the role of precedent-based reasoning in the Court’s case law and to case-based review, incrementalism and the development of general principles. Finally, the legal effect of these general principles is discussed (so-called ’res interpretata’ or force of interpretation), in contrast to the application thereof to the facts of the individual case.

In many, if not most cases, the ECtHR relies on its own precedents in interpreting the Convention, but some cases may present the Court with new and difficult questions of interpretation. To answer these, the Court relies on a number of specific principles and methods of interpretation. The Court is guided in its work by several core principles, such as effectiveness, evolutive interpretation and autonomous interpretatio, but these are still relatively abstract in nature and they may not suffice to answer a concrete question of interpretation. For that reason, the Court often also relies on the methods of interpretation as described in the provisions of the Vienna Convention on the Law of Treaties, such as textual interpretation, interpretation in light of the travaux préparatoires and internally harmonising interpretation. This chapter discusses the Court’s use of these three methods. In addition to these methods, the Court has opted for a particular refinement of one of the Vienna Convention’s methods, which is consensus or common ground interpretation. This method and the various sources for the Court’s finding of a consensus are also discussed in this chapter.

This chapter discusses the right to freedom of religion, thought, conscience and belief as it is protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is paid to both the forum internum and the forum externum (religious manifestations). In the final section, a short comparison between the different instruments is made.

This chapter discusses the right to life and the prohibition of the death penalty as laid down in the European Convention on Human Rights, in Council of Europe instruments, in EU law and in international instruments. It also pays attention to matters such as the beginning and end of life and preventive and investigative positive obligations. In the final section, a short comparison between the different instruments is made.

This chapter discusses the right to health as it is protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is paid to eg access to health care, quality of health care, positive obligations and informed consent. In the final section, a short comparison between the different instruments is made.