Previous judgments as narrative constraint: how the European Court of Human Rights narrates departures

by dr Yuliia Khyzhniak[i]

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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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Introduction

When the European Court of Human Rights (ECtHR/Court) explicitly departs from its established position on a particular legal problem, it has to explain this departure[ii] in the light of previous judgments on a similar matter. It is true that the ECtHR does not have a legal obligation to follow its own previous judgments; however, as I argue, they still represent a narrative problem for the Court. When from a legal perspective the Court has freedom in changing its interpretations, dealing with the past becomes mostly a matter of telling a convincing story. The previous arguments cannot be ignored in a new judgment but should be reinterpreted in order to move forward. How does the Court sculpt the past so it becomes a prologue for departing from the established interpretations of the Convention? How is this departure constructed under the inevitable textual constraints previous judgments pose?

I address these questions following a particular approach within an interdisciplinary field of Law and Literature — narrative criticism of law. I argue that the ECtHR strives for a narrative continuity in its judgments. This turns the departure into a point of tension where the connection to the past is at risk. Using narrative theory in my analysis enables me to go beyond the legal perspective on departures which implies looking at the legal content of judgments. I believe that the legal perspective does not allow us to see how the Court makes the legal change a continuation of what was previously said. Thus, I consider myself an unexpected reader[iii] of the ECtHR’s judgments. My interest, when reading the ECtHR’s words, is directed not at the legal arguments but at what is between them — the ‘narrative glue’ which holds them together.

To see this ‘narrative glue’, I look at the texts of the ECtHR’s judgments as constituting a continuous entity, where a particular departure is embedded in a longer enterprise. This view of mine is greatly inspired by Ronald Dworkin’s idea of the chain of law. Dworkin famously compares judges to novelists who write a collective novel. Accordingly, in deciding a new case, each judge, similarly to a novelist in a chain, has to continue the story which was written before. What is helpful for me in Dworkin’s metaphor is his idea that texts of judicial decisions are connected by a certain continuity — from the past through the present and into the future — which may be called a narrative continuity. Following Dworkin’s idea of the narrative continuity helps me to consider those instances in which the ECtHR changes its position as parts of a longer narrative. Only in the context of this longer narrative can changes in the Court’s position have any meaningful explanation.

There are many aspects of the mechanism of departing which may be analysed with the help of narrative theory. In the present contribution, I will show only one aspect of how the ECtHR overcomes the narrative constraint of previous judgments — namely, how it constructs its own character in its judgments and what role this character performs in those departures which the Court explicitly announces.

Introducing the Court-character

If we look at the texts of ECtHR’s judgments as constituting a continuous narrative, what place do departures occupy in this narrative? Considering that departures mark a deviation from the previous approach of the Court, they are crucial events of this narrative which require to be explained and justified. The explanation of departures may involve a certain tension with the past. Indeed, if a court wishes to replace an earlier solution with a new one, this implies that the past decision is now considered undesirable. The question then is: who takes the responsibility for the undesirability of the previous solution to a problem? Who assumes the action of departing?

In this way, the one who acts in judicial decisions, the actor, becomes an especially critical aspect of how the process of departing is depicted. The main actor who performs actions in judicial decisions is the decision-maker. From a narratological perspective, I call this figure the character of the decision-maker (or the protagonist of the decision-making process). How this character is constructed has a great impact on the manner of departing used by a particular court. Different courts opt for different characters in order to tell about their decisions: ‘we’ (the US Supreme Court or the Supreme Court of Israel); or ‘I’ (the UK Supreme Court); or ‘the Court’. Some courts (the European Court of Justice, for instance), however, prefer to use passive voice constructions such as ‘it must therefore be held’ or ‘it must be determined’ which — at the textual level — do not imply any agency behind them.

In its judgments, the ECtHR does create a character of the Court which is a complicated construction. Judges of the ECtHR project themselves and their actions in the course of the decision-making process onto the figure of the Court in the texts of judgments. At the same time, this figure embodies not only the judges but also the ECtHR as an institutional entity. It should be mentioned that I draw a line between the judges as real people and the figure of the Court constructed in the text. This gives me an opportunity to concentrate on the text of a judgment itself, on how this text works and what it tries to achieve. For me, this distinction is crucial since it allows to separate the textual figure of the Court I am interested in from the flesh-and-blood judges (and all the others involved in the drafting process) as creators of the text which constitute a different subject I do not look at.

Calling the Court a character may be viewed as a strange idea. Obviously, readers of judicial decisions do not expect to encounter a character of the court in decisions — this is not what decisions are read for. And there is no surprise then that statements related to the courts’ actions in decisions typically sound boring and lifeless: ‘the Court notes’, ‘the Court held’ or ‘the Court stated’. However, if a particular court constructs a figure of itself in the text of decisions which not only ‘states’ and ‘notes’ but also is capable of more intricate human-like actions and feelings, then this figure is worth a closer look. Ultimately, it makes sense to talk about the character of a court only if it possesses truly peculiar features, the exploration of which can potentially add to understanding how a particular court constructs an image of itself for a public circulation and why this construction looks this particular way. The character of the ECtHR represents exactly this case.

What is so peculiar about the Court-character in ECtHR judgments?

The Court in ECtHR judgments is a character that does not quite fit into our ideas about an average court in the text of judicial decisions. Again, not that we expect to see courts as characters in judicial decisions. Typically, we don’t. And yet, surprisingly, while reading ECtHR judgments I kept seeing traits of the Court scattered here and there.

One of the most important aspects of the Court’s personality in ECtHR judgments is its role in interpreting the Convention. The judgments often put emphasis on how the Court has to correspond to its own mission, especially if the case at hand calls for a change in the Court’s position. For instance, here: ‘a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement […]’ (Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, para 455). This kind of statements emphasises primarily a unique responsibility placed on the shoulders of the Court — to develop the Convention provisions in a certain way. The scale of this responsibility amplifies a crucial role of the Court, its importance and its indispensability. By mentioning a possible scenario of the Court failing its unique mission (‘a failure by the Court to maintain…’), the ECtHR dramatizes its own role. As a result, the Court looks almost vulnerable just like a person capable of failures.

What is more unusual about the Court-character in judgments is that it possesses emotional intelligence which makes it understand other people’s emotions and even experience its own emotions. For instance, the Court includes in its reasoning phrases such as: ‘[t]he Court can also imagine that a party may have a feeling of inequality […]’ (Kress v. France, para 81); or ‘[t]he Court has no doubt that this caused the first applicant deep anxiety […]’ (Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, para 70). Such openness may not necessarily be encountered in the judgments of other courts, be they domestic or international. Not every court dares to acknowledge explicitly that it can imagine feelings experienced by people. And it definitely cannot imagine them in reality since the Court does not physically exist as a person with a mind and a heart. This is why it is relevant to look at this Court in the text from a narratological perspective — as a character. Creating such a character is a narrative technique the ECtHR employs to portray itself as a relatable figure which can be easily understood by readers. This character is more human and fragile than one normally expects from the figure of a judicial or, indeed, any other institution. The Court-character with its sensitivity and openness is a powerful instrument the ECtHR uses to present itself as a relevant human rights actor capable of sympathy and compassion.

The role of the Court-character in departures

As I mentioned earlier, at the moment of departure, the character of the decision-maker acquires an especially important role and determines how readers perceive a change in a court’s approach. I argue that the manner in which the ECtHR incorporates explicit departures into its case law becomes possible exactly by means of the Court-character, which is being formed judgment by judgment throughout the entire corpus of the Court’s jurisprudence.

Because the Court in judgments can be aware of its own experience and even feelings as well as of those of applicants, the Court can present a change in its approach as a transformation of its views and attitudes. By referring to its own character in judgments, the ECtHR is able to explain in a ‘natural’ relatable way, why the change is necessary. I call it a ‘natural relatable way’ since I think such explanations seem more characteristic of a person who is writing about her own life, for instance, than of a judicial institution.

To demonstrate this, I propose to look at two examples of departures. The first example is the ECtHR’s judgment in the case of Vilho Eskelinen and Others v. Finland in which the Court departed from its previous approach taken in Pellegrin v. France. The second one is the ECtHR’s judgment in the case of Magyar Helsinki Bizottság v. Hungary in which the Court explicitly changed its initial approach which had been adopted in the case of Leander v. Sweden. In both of these judgments, the character of the Court undergoes changes in its perception of a particular problem which allows the Court to analyse frankly its own actions in the past and to acknowledge, if necessary, its own mistakes. As in every other departure, in Vilho Eskelinen and in Magyar Helsinki Bizottság, the ECtHR runs into the narrative constraint of previous judgments, however, the narrative problem posed by the previous judgments is different for these two departures.

In Vilho Eskelinen and Others v. Finland, the narrative problem which should be solved by the ECtHR pertains to the functional criterion adopted in Pellegrin v. France. In order to depart, the Court has to overcome the approach taken in Pellegrin. How does the ECtHR achieve this? It resorts to the Court-character who can be vulnerable enough to admit the difficulties in the application of the functional criterion. The ECtHR refers to its own experience as a court, as a judicial institution. It honestly says that the Court’s task is challenging and that Pellegrin did not become a workable solution: ‘Further, an examination of the cases decided since Pellegrin shows that ascertaining the nature and status of the applicant’s functions has not been an easy task (for the Court — Y.K.) […]’ (Vilho Eskelinen and Others v. Finland, para 52; emphasis mine). This passage should not be taken for granted. I want to emphasise that in order to say that the interpretation of the Convention has not been an easy task for the Court, first one must portray the character of the institution, which is capable of experiencing difficulties. Moreover, not only is this institution capable of experiencing difficulties but it can also acknowledge the imperfections in its own past actions as is evident from the Court’s following words: ‘The Court can only conclude that the functional criterion, as applied in practice, has not simplified the analysis of the applicability of Article 6 […]’ (Vilho Eskelinen and Others v. Finland, para 55; emphasis mine). It is impossible not to notice the frankness of the Court which in fact admits its own failure to introduce a workable approach.

In Magyar Helsinki Bizottság v. Hungary, the Court has a different narrative task imposed by the previous judgments — namely, to explain the previous behaviour of the Court and to clarify the current attitude towards the issue in question. With this departure, the problem was that since the case of Leander v. Sweden, the Court had been taking different paths in addressing the question of whether Article 10 includes a right of access to information. This made the previous approach of the Court incoherent. Therefore, in Magyar Helsinki Bizottság, the ECtHR has to bring all the strands of case law together. And again, as it does in Vilho Eskelinen, the ECtHR uses the Court-character in the text to overcome what was previously said. The Court reconsiders its own actions in the past and makes them connected to the initial principle articulated in Leander v. Sweden: ‘With hindsight the Court considers that this line of case-law did not represent a departure from, but rather an extension of, the Leander principles […]’ (Magyar Helsinki Bizottság v. Hungary,para 131; emphasis mine). In this passage, it is especially noticeable that the Court speaks as if it was a person who reflects on and reinterprets its own past. This is achieved with the help of the formulation ‘with hindsight’. Such a reinterpretation gives room for introducing a novelty and allows to create a narrative connection between the past and the present. Here is one more passage in which the ECtHR uses the same narrative technique: ‘The above-mentioned recent case-law (including Gillberg) may be viewed as illustrating the types of circumstance in which the Court has been prepared to recognise an individual right of access to State-held information’ (Magyar Helsinki Bizottság v. Hungary, para 133; emphasis mine). In this passage, we can once again see how important the role of the Court as a character is in the process of changing the law. The ECtHR ascribes retrospectively to its own character in the past a certain state of mind — ‘the Court has been prepared to recognise’. This immediately gives a new meaning to the previous interpretive actions and allows to move to a new approach.

Conclusion

With the help of these two examples, I have shown how the ECtHR makes room for new ideas and interpretations by depicting its own character and its attitudes as developing. The mechanism of self-development allows the ECtHR to avoid a confrontation with previous judgments and their argumentation. This is what distinguishes the ECtHR from the US Supreme Court, for example, whose way of departing often involves blaming predecessors for the wrong approach they took. This also makes the ECtHR quite different from the European Court of Justice, for instance, which does not have any comprehensible way of explaining departures. Contrary to both of the mentioned courts, the ECtHR cleverly uses departures to reinterpret its own past decisions. Hence, departures affect not only the judgments which come after them, but also the whole narrative preceding them since they give meaning to this narrative. In this way, a narratological approach helps to reveal the complexity of the mechanism of changing the jurisprudence employed by the ECtHR.

[i] This contribution represents a short account of the several parts of my PhD dissertation titled Rereading Things Past: A Narratological Approach to Departures in the Jurisprudence of the European Court of Human Rights. Some parts of this argument were published in: Khyzhniak, Y. ‘Overcoming the Past: The European Court of Human Rights Narrates Departures’. Tijdschrift voor Formeel Belastingrecht, March 2025, no. 2: 37–42.

[ii] I focus on those instances of legal change which involve a switch in the Court’s approach, meaning a change from one position to another one. I call such changes ‘departures’ since the ECtHR itself uses this term in those judgments which are written in English. I look at explicit departures only.

[iii] The term ‘unexpected reader’ is inspired by Elaine Castillo who, however, uses it in a different context in her book How to Read Now. Essays.