A Misguided Utopia: The Ambiguity of the European Court of Human Rights

​Written by Samantha Graines, Edited by Nicole Muravksy

The European Court of Human Rights (ECtHR) is an international court that enforces the European Convention on Human Rights (ECHR), serving as the primary judicial mechanism for protecting human rights across Europe. It receives applications from individuals, groups, or states alleging human rights violations by member states, orders remedies if violations are found, and puts out rulings that have led to important legal reforms. While the European system for protecting human rights may appear to be a model framework for protecting human rights, in reality, its decision-making processes and jurisprudence are fraught with ambiguity. This ambiguity undermines the consistency and fairness of its rulings, often leaving essential human rights vulnerable to subjective interpretations.

One pillar of both international human rights and the ECHR is the right of freedom of expression. Article 10 of the ECHR is concerned with the matter of freedom of expression and states: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.” The phrasing in the clause “duties and responsibilities” and “necessary in a democratic society” highlight the ambiguous nature of the ECHR. The verbiage implies a certain level of ambiguity that poses a large challenge in consistently and fairly interpreting what is meant in actuality. Each individual, each lawyer, and each juror, respectively, has a different way in which one views one’s “duties and responsibilities” and what’s “necessary in a democratic society.” Society is composed of diverse individuals, each who can interpret this article and develop an understanding of how to utilize one’s rights differently. Seeing how a foundation of the ECHR is rooted in ambiguity, it is only natural to suppose that the ECtHR will operate with such lack of clarity as well. 

Furthermore, the legal doctrine of “margin of appreciation” also welcomes much ambiguity into the ECtHR. The margin of appreciation grants member states a certain margin to create their own policies, and ECtHR interferes when a member state has overstepped its margin of appreciation. The ambiguity inherent in ECtHR’s use of the "margin of appreciation" doctrine is epitomized in the 1994 case of Otto-Preminger-Institut v. Austria; this case focussed on the balance between freedom of expression and the protection of religious sensibilities. This case represents how the system of human rights protection is flawed when the ECtHR has to decide which right they deem more important: religion or expression.

Otto-Preminger-Institut v. Austria involved the seizure and confiscation of a film deemed blasphemous and offensive to the religious beliefs of the Catholic majority in Austria. The Court ultimately ruled in favor of Austria, granting the government a wide margin of appreciation in restricting the film's expression to protect public morality and the religious sensibilities of the population [5].
The ECtHR granted Austria a wide "margin of appreciation" in determining the necessity of seizing an allegedly blasphemous film, demonstrating the flexibility and ambiguity the Court allows national authorities in interpreting the ECHR. Additionally, the Court's willingness to prioritize the protection of public morality and religious sensibilities over freedom of expression highlights the subjective, context-dependent nature of the Court's decision as well as the Court's ambiguity in determining when to defer to national contexts versus applying uniform human rights standards. This outcome also contrasts with the Court's earlier Handyside v. UK decision, suggesting a lack of clear, consistently applied principles in the ECtHR's jurisprudence [3]. 

Besides, the principle of leaving the margin of appreciation up to the national legislators opens up the gates to the possibility of using a wide margin of appreciation to further a country’s own national interests. This ambiguous approach has led the ECtHR to apply human rights protections inconsistently, often prioritizing the interests of states over the fundamental freedoms of individuals. For example, the 2005 Hirst v. UK ECtHR case shows how uniform enforcement of human rights can be undermined by a wide margin of appreciation. This case discussed a challenge to the UK’s blanket ban on prisoner voting rights. Although the court argued that the UK’s policy Article 3 of Protocol No. 1 of the ECHR, the court granted the UK a wide margin of appreciation, so that they could determine the specifics on voting laws [4]. This decision shows how a wide margin of appreciation can lead to unequal enforcement of rights, including the right to vote.  
The problems presented by the ECtHR in the 1994 and 2005 cases, unfortunately, still have relevance today. The 2020 N.D. and N.T. v. Spain ECtHR case showcases how the ECtHR continues to prioritize state sovereignty and national interests over individual human rights. The ambiguity of the legislation allows for this prioritization to occur.  In this case, the Court ruled that Spain's summary deportation of migrants at its borders did not violate the ECHR. The decision allowed Spain to expel migrants without proper asylum procedures, using the "margin of appreciation" to justify state security concerns over individual rights [6]. By granting Spain a broad margin in handling immigration, the ECtHR sent a troubling signal that the protection of human rights can be circumvented when weighed against state interests like immigration control. The immigration crisis is one of the most urgent human rights issues today. If an institution like the EctHR, which is tasked with protecting vulnerable individuals such as migrants, cannot effectively safeguard their rights, it raises the question: who will? This failure signals a broader problem with how international bodies are responding to those most in need of protection, leaving vulnerable populations increasingly at risk. 
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From wide margins of appreciation to space for much interpretation, it is clear the ways in which the ambiguity of the ECHR is leading to failure. However, it is important to note that even though there is much room for improvement in the ECtHR that does not mean it is an ineffective court. The ECtHR has had success including the absolute prohibition on torture and other cruel, advocated for minority rights, and worked to protect many human rights including freedom of speech. These human rights accomplishments are not shared by all. This ambiguity leads to uneven enforcement, where vulnerable groups—like migrants—remain inadequately protected, casting doubt on the Court’s effectiveness in its mission. If the ECtHR cannot fulfill its fundamental responsibility to safeguard human rights consistently, it calls into question the role of international bodies in human rights enforcement. To address these shortcomings, the ECtHR must reform its interpretive frameworks to ensure clearer, more uniform protections, reducing the leeway granted to states under doctrines like the margin of appreciation. Only then can it truly serve as a reliable guardian of human rights for all European citizens.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Bibliography
[1]“Convention for the Protection of Human Rights and Fundamental Freedoms.” Council of Europe Treaty Series 005, Council of Europe, 1950.
[2] Donnelly, Jack. Universal Human Rights in Theory and Practice . 3rd ed., Cornell University Press, 2013. 
[3] Handyside v. United Kingdom - 5493/72 [1976] ECHR 5 (7 December 1976). 1976, http://www.bailii.org/eu/cases/ECHR/1976/5.html.
[4] Hirst v. United Kingdom -  74025/01 [2003] ECHR 4 (8 July 2003). 2003, https://hudoc.echr.coe.int/eng?i=001-23304
[5] Otto-Preminger-Institut v. Austria - 13470/87 [1994] ECHR Chamber (20 September 1994 ). 1994, https://hudoc.echr.coe.int/eng?i=001-155981
[6] N.D. and N.T. v. Spain - 8675/15 and 8697/15 [2020] ECHR Grand Chamber (13 February 2020). 2020, https://hudoc.echr.coe.int/eng?i=001-201353.