July 11, 2025
By Anaïs Brucher
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To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.
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The idea that states must respect the ‘essence’, or ‘very substance,’ of ECHR rights appears recurrently in ECtHR case law – we count over 2000 ECtHR cases referring to such ‘essence’ since the 1968 Belgian Linguistic Case. These references to the ‘essence’ are captivating because this language is intuitively powerful. It conveys the idea that each right has a nuclear core which is so indispensable that its impairment renders the right void. It also gives away something about how the ECtHR understands its role in human rights protection. Yet the translation of the abstract idea of ‘essence of rights’ into judicial reasoning is not straightforward. At best, scholars have argued that the ‘essence of rights’ in judicial reasoning feels like sugar in hot milk: we cannot really pinpoint its components, nor can we identify a threshold beyond which the ‘essence’ is clearly impaired. We do not even know who should be entitled to define it – the judge or the legislative assembly. The ECHR does not provide any answer: there is no mention of the ‘essence of rights’ in the Convention.
Against this background, I collected, classified and studied all ECtHR judgments referring to the ‘essence of rights’ or its synonyms, over the last ten years (2013-2022). My aim was to (more) clearly examine how and to what effect the term ‘essence of rights’ is mobilised in ECtHR case law. This blog post provides a snapshot of a few preliminary research results.[1]
In essence (no pun intended), so far I have found that the ECtHR’s references to the ‘essence of rights’ are less innocent than some have argued. Respect for the ‘essence of rights’ has an impact on the reasoning of the Court and the ECHR legal doctrine. This blog post centralizes three arguments: (1) the ‘essence’ in ECtHR case law is more than an element of the balancing test (which is what scholars often see it as), (2) its use creates a potential trump card for states, and (3) the Court oscillates between two understandings of the ‘essence of rights’, which might reveal a deeper normative oscillation in the Court’s general understanding of rights and their nature.
Scholarship usually discusses the idea of an ‘essence of rights’ as an element of the balancing test applied to restrictive measures. To comply with a given bill of rights, a domestic measure interfering with some right would have to, say, follow a legitimate aim, be proportionate and respect the ‘essence’ of the right. Respect for the ‘essence’ is used as a ‘validity condition to restrictions of rights’ (VCR).
What I find in the 2013-2022 ECtHR case law is that there are more facets to the language of the ‘essence’ than that. The ‘essence’ performs several functions in ECtHR reasoning – with ‘functions’ understood as roles performed by the ‘essence of rights’ in judicial reasoning .
Most ECtHR judgments do indeed refer to the ‘essence of rights’ as an element of the balancing test – a VCR. That said, the use of the ‘essence’ as a VCR is more complex than what scholarship usually describes. It comes with many variations. The ‘essence’ of the same right – say, Article 6 ECHR – is, at times, used (i) in addition to the condition of proportionality (‘the measure is valid if it is legitimate, proportionate, and respects the essence of the right at stake’, Grzęda v Poland [GC]), (ii) as a substitute to proportionality (‘as long as the measure respects the essence of the right at stake, it is valid under the ECHR’, Geotech Kancev GMBH v Germany), or (iii) as an ‘umbrella condition’ that encompasses both proportionality and legitimacy (‘if the measure is legitimate and/or proportionate, then it respects the essence of the right at stake’, Altay v Turkey (no 2)). We immediately see important differences between these three scenarios. To say the least, the relations between proportionality and ‘essence’ are multifaceted – if not eclectic.
Interestingly, the ‘essence of rights’ is used in other ways than as an element of the balancing test. The Court notably makes references to the respect for the ‘essence’ to increase or decrease the scope of protection of rights (Vlahov v Croatia), and to evaluate the state’s margin of appreciation (Dahman Bendhiman v Spain). Other, more isolated, uses of the ‘essence of rights’ are identified too, to assess legal standing (Rõigas v Estonia) or the exhaustion of domestic remedies (R.M. v Latvia). There are also many rhetorical references to the ‘essence’, which are too vague to perform any specific function.
All in all, the ‘essence of rights’ in the ECtHR case law has more facets than what scholarship usually explores. This finding is interesting because it precisely contrasts with our usual understanding of the ‘essence’. The latter appears very malleable in practice, in content, but also in function.
Arguably, though, one element ties all these judgments together: the symbolic power of such language. One way or another, every reference to the ‘essence’ carries the idea of a nuclear core which should not be destroyed. It sends the message that the facts at stake might touch upon something of importance. That said, I do not study why judges choose to use this language in the first place. Rather, and regardless of these reasons, I argue that, at a meta-level, the uses of the ‘essence’ reveal something about the ECtHR’s broader understanding of the ECHR rights and its own role in human rights protection. The language of the ‘essence of rights’ is filled with normativity, which I start exploring (a vast quest, it is) below.
Before moving on to the normativity underpinning the uses of ‘essence’, I briefly mention one more data-based observation. Through a recurrent slippery reasoning, the language of the ‘essence of rights’ has the potential of being used as a trump card for states – a carte blanche, as per Judge Sajó’s words in Regner v the Czech Republic [GC]. This is important, because it calls for caution in the use of the term, which we often picture as applied innocently, rhetorically, when judges feel like it.
The observation goes as follows. At least in the cases of the VCR and Margin of Appreciation functions performed by the ‘essence’, I have found many ambiguous judgments where the ECtHR finds that there is no violationof the ECHR on the sole basis that the domestic measure respects the ‘essence’ of the right at stake (Muhammad and Muhammad v Romania [GC]; Dahman Bendhiman v Spain). In these judgments, we find no assessment of legitimacy, proportionality or other conditions. The restriction is valid as long as, but only if, the ‘essence’ of the right is respected.
This type of judicial reasoning is seriously restrictive. With this logic, the ECtHR allows states to impose extremely constraining – in fact, disproportionate – measures on individuals, as long as these measures do not entirely destroy ECHR rights. The risk is straightforward: in these circumstances, the ‘essence’ becomes a get-away card for states in critical situations. That is even more true given that the ECtHR does not define the ‘essence of rights’; it remains inherently malleable language.
From that perspective, there is a paradox in the case law. We intuitively understand the ‘essence’ as providing immunity to the core of rights from balancing exercises and politics. And yet, we find cases where this language is used to justifystate restrictions. In these cases, the ECtHR becomes, or could become, a partner of domestic authorities in devising policies that only respect the bare minimum.
One nuance is important. From what I have observed, the ECtHR rarely applies this logic explicitly. It uses ambiguous wording instead (this applies to the cases referred to just above). This is typically the case when the ECtHR rules that a specific domestic measure ‘does not amount to a disproportionate hindrance impairing the very essence of the applicant’s right’ (Zubac v Croatia [GC]). This sentence can have two meanings. On the one hand, it can mean that there is no violation of the Convention in casu because the measure is proportionate to its aim. The reference to the ‘essence’ is then quite harmless: it is at best performative, and in any case, deprived of self-standing decisional function. On the other hand, if we take the judgment à la lettre, we understand that there is no violation of the Convention since the measure is not disproportionate to the point that it impairs the ‘essence’ of the applicant’s right (whatever that ‘essence’ may be). This second interpretation has more serious consequences: the ‘essence’ becomes the unique threshold applied by the Court… and an easy get-away card for states.
Unfortunately, there is often too little context in the judgments themselves to help the reader choose between the two avenues. The choice ultimately relies on the reader’s own interpretation.
Therefore, and although the trump card risk should not be overstated (as a Ghent University master student rightfully pointed out to me), there is, to be sure, room for caution here. Practitioners and states can profit from this important ambiguity.
A closer look at the case law shows an oscillation between two distinct and somewhat conflicting understandings of the ‘essence of rights.’ I show below that it is used both as a ‘hard core’ and as a ‘soft core’ throughout cases. I then argue that this oscillation might hide a deeper one between two (or more) human rights theories: rights as primarily moral and rights as primarily political. This is important, because it opens the discussion on the need (or absence thereof) for Strasbourg – a supranational human rights court invested with an important interpretative role – to engage with the abstract work of legal theorists.
I previously identified several functions performed by the ‘essence of rights’ in judicial reasoning. It is used as part of the balancing exercise, to assess the scope of application of rights, or to measure states’ margin of appreciation. I now go one step further. My data revealed that, for each of these functions, the Court alternates between ‘hard core’ and ‘soft core’ understandings of the ‘essence’.
The ‘essence’ is at times used as a hard and context-independent core. Its content for each right is taken to be the same across circumstances, and immune to a balancing exercise. It is (seemingly) pre-defined in the abstract. This is typically the case in judgments where the ‘essence’ is an element of the balancing test, cumulative to legitimacy and proportionality (see references to cases above). The ‘essence’ is then the ultimate condition for the validity of restrictive measures, on top of proportionality. This scenario is what scholarship studies by default when discussing the ‘essence’.
However, the ‘essence’ is at other times articulated by the ECtHR as context-dependent. It is a ‘soft core’: its content is determined on a case-by-case basis, through a balancing exercise. Take, for instance, those judgments where the Court speaks of restrictive measures that ‘disproportionately restrict the essence of rights’ (Teslenko and others v Russia, para 129). In good logic (though logic ought not to be the Court’s priority), this implies that restrictions on the ‘essence’ can be either proportionate or disproportionate. The ‘essence’ then has soft boundaries, since its contours are subject to balancing. A similar logic applies when the Court assesses the proportionality of a measure, after having ruled that this measure does not touch upon the ‘essence of a right’ and that the respondent state’s margin of appreciation can thus be large (The National Union of Rail, Maritime and Transport Workers v the United Kingdom, para 88). The ‘essence’ becomes a ‘malleable product of its environment’ – see a similar framing used by Judges Pinto de Albuquerque and Elósegui in Muhammad and Muhammad v Romania [GC], para 19).
Overall, the Court oscillates between the hard and the soft understandings of the ‘essence’, without much overarching consistency.
At this point, my analysis could come across as giving too much importance to the words chosen in the ECtHR judgments. Yet I argue that it still matters. For one, because words in judgments are not innocent: they are all that is left to readers, practitioners and courts when interpreting the (influential) ECtHR case law. More importantly, this oscillation reveals aspects of the Court’s normative understanding of human rights.
The oscillation between the hard and the soft understandings of the ‘essence’ could reveal a deeper oscillation at the Court between two theories of rights: rights as moral, and rights as political.
The argument would go as follows. When the ‘essence’ is used as a ‘hard core’, it carries the idea that rights exist with a fixed bone structure that applies uniformly (universally) through cases and states. That is quite close to theories picturing human rights as primarily grounded in morality, and which understand rights as an abstract moral reality mostly detached from social contexts and political agendas (see Tasioulas’ or Griffin’s work). On the other hand, when the ‘essence’ is used as a ‘soft core’, the bone structure of the ECHR rights becomes more fluid, because it is context-dependent. This is closer to the political theories of human rights, which understand human rights as finding their ground in political and cultural contexts (see Raz’s or Dembour’s works).
Of course, this argument is, for now, still a bit raw. It requires more nuance, and perhaps the sharp distinction between political and moral theories deserves to be revisited – please, do feel free to reach out if you would like to discuss it further. Yet the lack of nuance I show here ultimately matters less (for now) than the overarching finding it comes with. The study of the ‘essence of rights’ shows, in any case, and regardless of any more detailed labelling, that the ECtHR oscillates between various understandings of the ‘nature’ of rights in its case law. This finding is important because the various political and moral theories of rights have significantly different views on the human rights project and the role of courts therein. This includes notably the important question of universality.
This scenario of oscillation is probably untenable in legal theory: in good logic (bis), a legal system could probably not be based on two conflicting theories of rights. However, I argue that, in practice, we might not be able to expect this from the ECtHR. This oscillation is characteristic of the Court’s work. Its work is to strike a balance, in each case, between unity and diversity, while protecting its legitimacy. In each case, the Court must find the right balance on at least two points. It must oscillate between promoting a common standard of rights protection and respecting domestic particularities (universalism vs particularism). It must also strike a balance between any ideal (…ideal for whom?) moral interpretation of the ECHR and considerations of institutional design and political legitimacy (moralism vs realism).
The balance found is different for every case. That is the case especially since judges, who have different sensitivities, need to decide on a lot of cases, and do so decently fast with an eye on the judicial backlog. All in all, it makes sense that Strasbourg’s understanding of human rights is never completely homogenous; the case law is made out of collegial decisions and brews dissenting and frequently renewing voices.
To be clear, normative choices surely underpin ECtHR judgments. There is no questioning it. My point is also not to say that there is no place in legal discussions for ambitious theories and agreements on the legal nature of rights. Of course there is. These discussions have animated the literature for a long time and can influence political institutions.
The point I make – or the question I ask – however, is that it might be too much to expect from the ECtHR judges to understand their roles as interpreting human rights according to a unique theory of rights, that they should apply coherently across cases. It would not fit with the realistic stakes at play. Should the development of large-scale theories not rather belong to democratic arenas? The ECtHR oscillates… because it is not expected to do anything else.
Overall, the ‘essence of rights’ is ambiguous language in the ECtHR case law, which opens the door to many interpretations of ECHR rights, including overly restrictive ones. Recent case law shows that this language is extremely malleable, and that the ECtHR oscillates between a ‘hard’ and a ‘soft’ understanding of the ‘essence’. Both understandings have distinct normative implications and reveal how the Court oscillates between a moral and a political reading of rights. However, it does not belong to judges to reach an agreement on the abstract nature of rights to apply coherently across cases.
[1] This is part of my currently ongoing doctoral research. Its details are too long to fit in here, but anyone can feel free to reach out for more details, at anais.brucher@eui.eu
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