December 18, 2025
by Harriet Ní Chinnéide and dr Tobias Mortier
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Between the 12th and the 22nd of December, Strasbourg Observers is hosting a blog symposium entitled ‘The Role of the European Court of Human Rights: Progressive, Conservative, or Both?‘ The introduction to the symposium can be found here. In addition to this post from Harriet Ní Chinnéide and Tobias Mortier, the symposium includes contributions from Corina Heri, Vera Wriendt, Esra Demir-Gürsel, Betül Durmuş and Jens T. Theilan.
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Criticism of the European Court of Human Rights is neither new nor one-dimensional. The work of the Court is often critiqued from various angles, but recently some sort of dichotomy seems to have emerged more prominently amidst this criticism. On the one hand, some critics argue that the Court goes ‘too far’ in its rulings, with its judgments extending beyond what they consider to be the limits of its jurisdiction. Such critics would argue that the Court is often too ‘progressive’ in its decision-making. On the other hand, others assert that the Court is not going ‘far enough’, and lament instances where the Court ‘missed opportunities’ to elaborate on certain aspects or developments in its case law. These critics would say that the Court has become more ‘conservative’ instead.
Amidst a concerted push from a growing number of States for reform to both Article 3 and Article 8 of ECHR in the field of migration, this discussion has become increasingly politicised in recent months, creating an even more tense environment in which the Court must operate. In this blog post, we seek to engage with the discussion of whether the Court has become too ‘progressive’ or ‘conservative’ and discuss some of the arguments made by both sides. Our objective is not to argue that one side is more ‘correct’ than the other; rather, we seek to contextualise, add nuance to these perspectives and paint a picture of a Court that is stuck in the middle: neither wildly progressive, nor wildly conservative.
At the outset, it should be acknowledged that the terms “progressive” and “conservative” are both nebulous and loaded. Within the broader public discourse, they are rarely invoked as neutral descriptions but tend to function as rhetorically charged labels, used to signal approval or disapproval depending on the speaker’s viewpoint and positionality. In a human rights context, the situation is further complicated by the fact that there is often a subjective element inherent in any evaluation of where a measure falls on the spectrum between progressive and conservative. As a result, a decision that scholars criticise as unduly restrictive may be simultaneously denounced by political actors as radically progressive – or potentially vice versa, depending on the perspectives of the scholars and the political actors involved.
It falls outside the scope of this post to develop a clear and comprehensive metric by which the ECtHR’s judgments can be evaluated and definitively placed along the scale between progressive and conservative. In this post, a more intuitive understanding of both terms will be adopted such that “progressive” will be understood to refer to an approach whereby the Court interprets the rights enshrined in the Convention more expansively, in line with the ‘living instrument doctrine.’ “Conservative” will be understood to refer to the approaches whereby the Court takes a more restrictive approach to rights interpretation. For instance, by deferring to the margin of appreciation owed to the State, emphasising its own subsidiary role or focusing on the absence of a European consensus.
Our work with the Strasbourg Observers blog has given us insight into the academic discourse surrounding the ECtHR. At present, the blog has an average monthly readership of almost 20,000 and features regular contributions from both early-career researchers and more established scholars working on issues concerning the full spectrum of the Court’s caselaw. In the past month alone, the blog has featured analysis of the Court’s rulings in cases concerning climate change, Covid-19 restrictions and international child abduction proceedings. In October, it featured posts on issues including prisoners’ voting rights, reception conditions in migration hotspots and the rights of non-binary trans* people. This reflects not only the scope of the content hosted by the blog, but the scope of the issues dealt with by the Court itself.
As a blog, Strasbourg Observers does not have an editorial angle itself. Although members of the editorial team do write for the blog, many of the posts published come from external authors. While the editorial team often identify specific rulings which we would like to see featured on the blog and reach out to potential authors who have expertise on the topic, we don’t solicit positive or negative analysis of any specific judgments – and, provided they meet the submission guidelines, we welcome spontaneous submissions from diverse perspectives.
If Strasbourg Observers can be seen as a reflection of the academic discourse more broadly, then the sheer volume of critical engagement that passes through the blog is striking. We don’t have precise figures, but much of the content the blog receives is critical rather than celebratory. Authors who wish to publish with on Strasbourg Observers are often sharply analytical and uncompromising in their critique of the Court – and even in cases where a violation is found, their conclusion often seems to be that it has not done enough to protect human rights. In essence, they often argue the Court’s approach to Convention interpretation is overly conservative. This is not a phenomenon which is limited to Strasbourg Observers. Rather it is a sentiment that seems to be reflected in academia more broadly. Although structural constraints may limit the Court’s capacity to play a more protective role and adopt a more expansionist approach, such critiques are important as they highlight the potential for it to do so and ensure that the status quo does not become too entrenched.
Irrespective of whether one sees it as a positive or a negative development, the caselaw does suggest that the Court has adopted a more conservative approach to rights interpretation. While an expansive approach in line with the ‘living instrument doctrine’ once appeared to be the hallmark of the Court’s practice, as argued by Christian Djeffal, today it has become something of an “aging activist,” listening ‘not only to the voices pushing for more evolution but also to the voices that call for clear limits.’ Confronted with growing challenges to its legitimacy from the latter camp, today the Court finds itself caught between ‘prudence and protection.’ The shift in the Court’s approach has prompted commentators to argue that it has entered an ‘age of subsidiarity,’ a development that has shaped both its application of admissibility criteria and its assessment of cases on the merits.
With regard to the admissibility criteria, Lize Glas has observed that since 2009 a stricter line has become visible in the Court’s caselaw on the exhaustion of domestic remedies concerning the content of the claim which must be raised before national courts. According to Glas, this is particularly apparent in cases concerning the United Kingdom – a State which has been very vocal in its criticism of the Court’s interventionist approach. More recently, Lorenzo Acconciamessa argued that the Court has ‘significantly raised the standard of diligence required from applicants in the process of exhausting the domestic remedies,’ citing rulings such as Fu Quan, s.r.o. v. the Czech Republic, Grosam v. the Czech Republic, as well as Mansouri v. Italy, where the Court went one step further by presuming the effectiveness of domestic remedies even in the absence of conclusive evidence to that effect.
Against this backdrop, it was perhaps unsurprising that in S.S. v Italy, the Grand Chamber applied its familiar case law on jurisdiction with a ‘lethal formalism,’ refusing to expand its jurisprudence to declare the applicant’s complaint inadmissible. Why? Because Italy did not have jurisdiction over migrants who were accepted and abused during a Libyan-led rescue operation even though Italy had funded, equipped and trained the Libyan coastguard responsible. This decision was sharply criticised by commentators on this blog and elsewhere (see here, here, here, here and here).
With regard to the substance of the applicant’s complaints, the argument that the Court has adopted a more cautious and conservative approach also holds. One of the clearest ways in which this is reflected in its judgments is in its use of procedurally minimalist approaches in its assessment on the merits. This was exemplified by the recent Grand Chamber ruling in Semenya v. Switzerland, the subject of a full symposium on this blog. The case concerned regulations requiring an international athlete to take medication to suppress her naturally occurring levels of testosterone and the proceedings by which she could challenge the rulings before the Court of Arbitration for Sport. Although the applicant raised complaints under several substantive Convention provisions these were all declared inadmissible and the Grand Chamber limited its assessment to her complaint under Article 6. This was an even more restrictive approach than that taken by the Chamber, which had found Ms Semenya’s complaint under Article 14 admissible but limited its assessment to the procedural aspects thereof. In doing so, it effectively sidestepped the question of whether the regulations themselves were compatible with Article 14.
The procedurally minimalist approach applied by both Chambers in Semenya reflects a broader shift towards procedural or process-based review (PBR) in the case law. While many overlapping definitions of PBR can be found in the literature, broadly speaking it refers to the Court’s increasing tendency to focus on the quality of domestic decision-making processes when assessing whether an interference with a Convention right can be justified. Where this approach is adopted, the Court often displays a willingness to defer to the decisions of domestic authorities who can demonstrate that they have balanced the competing rights and interests at issue in line with the requirements set out in the Court’s caselaw. In relation to the expulsion of migrants, in particular, PBR has allowed the Court to grant significant discretion to ‘responsible domestic courts’ – something which seems to have gone unnoticed by many of the Court’s most ardent critics (on the use of process-based review in expulsion cases see, here, here, and here). Domestic parliaments who have been deemed sufficiently responsible can also benefit from this more deferential style of review as illustrated by the Court’s rulings in cases like S.A.S. v. France, Executief van de Moslims v. Belgium and Humpert and others v. Germany. In fact, in some cases, it has seemed like they did so without having to do much to demonstrate the quality of their domestic review at all.
Although it may be true that the ECtHR of today is more cautious – and indeed, conservative – in its interpretation of human rights, in determining whether it should be characterised as a progressive or a conservative institution we must also be conscious of the yardstick we are measuring its practice against: Perhaps what some would label as a conservative Court, others would label as a progressive institution.
The Preamble to the Convention dictates that the Contracting Parties to the Convention have the ‘primary responsibility’ to secure the Convention rights and argues that genuine respect for these rights constitutes the foundation for justice and peace among all Member States. Progressive human rights scholarship frequently aligns itself with this overarching objective of protecting and upholding fundamental rights and freedoms. Often, however, contributors to this body of work highlight what they perceive as a yawning gap between human rights as moral imperatives and human rights as justiciable legal principles. From this perspective, a desire for a social order in which the human dignity of everyone is respected equally, unsurprisingly, tends to translate into calls for the Court to adopt a more expansive interpretation of ECHR rights in a way that it recognises more (aspects of) the rights of individuals. Two principal reasons are commonly advanced for this: Firstly, because the wider the scope of a human right, the sooner any government action may be found to interfere with it, resulting in an obligation being placed on the government to explain and justify its conduct in accordance with the conditions set in the Convention or in the ECtHR’s case law. Additionally, expansive interpretations may introduce new positive obligations for States to protect individuals’ rights.
At the same time, we must situate this commentary within a broader political context in which human rights are increasingly under pressure. In times where human rights are increasingly skepticized, politicized or denounced as ‘woke’, States may be reluctant to recognize new rights, expand already existing rights to include new facets or developments, or to extend them to individuals who previously were not included in the scope of said rights. ‘More’ human rights protection is therefore not always likely to be achieved through the democratic process alone – although there are exceptions. The Court is therefore frequently cast as a forum from which greater protection might be expected. Hence, critics turn to the Court in the hope that it will impose onto States what could not be achieved through the democratic process: more rights, and thus more protection, for everyone. If the Court does not comply and instead defers to the State, and the outcome of domestic judicial or political processes, this is often seen as the Court caving to conservative powers and curtailing its core mission.
Yet, the Court does not operate in a vacuum; this context of human rights skepticism puts the Court under serious pressure as well. A broader shift to the political right has resulted in increased criticism and backlash against the Court from States on which the Court depends for its continued survival. For those States the Court is most certainly not a conservative institution. The Swiss reaction to the KlimaSeniorinnen decision is emblematic of such a response. While the outcome of the decision was largely celebrated in human rights circles – it was even nominated as best judgment of 2024 on this blog – the reactions in Switzerland were significantly less enthusiastic. Swiss politicians and media called the decision an example of ‘judicial overreach’ or ‘undemocratic’ (see also here). Outside of Switzerland, too, government officials reacted negatively to the decision (see e.g. here).
In relation to migration, too, the ECtHR is often seen as anything but conservative. In countries like Denmark, Italy and the United Kingdom, the Court’s approach to migration has been the subject of significant criticism in recent years. In May, nine EU Member States, led by Denmark and Italy, came together to pen an unprecedented open letter to the Court, calling on it to adopt a more restrictive and deferential approach in the context of migration. Their message was soon endorsed by the United Kingdom, where critiques have developed into concrete proposals to adopt a more restrictive approach to Article 8 and to revisit the scope of Article 3. In response to these critiques, an informal conference of the Committee of Ministers was convened in December. As noted by Lina Sophie Möller, ‘[w]hile the formal conclusions call, in diplomatic terms, for a political declaration to be prepared for adoption in May 2026, a separate joint statement of 27 States Parties reveals a harsher line.’
Mirroring government proposals in the UK, the alternative joint statement of the 27 explicitly calls for a more restrictive approach to Articles 8 and 3, indicating a normalisation of the calls to limit not only the right to family life (which is already interpreted narrowly in immigration contexts), but also the prohibition of inhuman and degrading treatment, which should be absolute. Although deeply problematic from a human rights perspective, it seems to reflect a growing consensus amongst States, namely, that the Court interferes too much with State practices and that its jurisprudence makes it too difficult for them to legislate in the way they want. Regardless of whether one agrees with this perspective, the fact remains that this places the Court in a very difficult situation: on the one hand, it remains committed to upholding and promoting human rights, while on the other, it must protect its own position and viability.
In this context, it is perhaps unsurprising that the Court today is often perceived by more progressive voices as ‘more conservative in spirit than its former self.’ However, it should be recognised that this does not imply that it has abandoned the “living instrument” doctrine altogether and in several recent cases the Court has improved or expanded the protection provided to individuals too: in the recent Grand Chamber judgment in Ukraine and the Netherlands v. Russia, the Court took a new approach to the relationship between the ECHR and international humanitarian law, thereby breaking with its previous case law (see here); in N.D. v. Switzerland, it addressed an instance of domestic violence for the first time as a case of femicide, thereby cementing that concept in its case law under Article 2 (see here); in F.M. and Others v. Russia, the Court appeared to incorporate intersectionality into its Article 14 case law; and in E.A. and Association européenne contre les violences faites aux femmes au travail v. France the Court laid out the criteria to determine a lack of consent for the first time.
It should also be recognised that subsidiarity is a two-sided coin and that process-based approaches do not always undermine and weaken the protection available to applicants. On the contrary, by finding a procedural violation, the Court may at times set an expectation or introduce a requirement with the potential to significant structural change extending beyond an individual case. For instance, the Court’s procedural assessment of Article 14 in Wa Baile v. Switzerland resulted in an implicit acknowledgment of a positive obligation to investigate racial profiling (see here). Similarly, in M.P. and Others v. Greece, the Court ruled that domestic courts are obliged ex officio to assess whether it would be in the best interests of the child to hear the child in proceedings involving international child abduction (see here). Even in Semenya v. Switzerland, highlighted above as an example of a procedurally minimalist approach, the Court introduced a high standard of scrutiny which domestic courts need to adopt in reviewing decisions taken by the Court of Arbitration for Sport, which may in turn ultimately benefit athletes – although this remains to be seen (see here). One would therefore be remiss to assume that the Court has become some beacon of conservativeness; there are still instances where the Court shows itself more ‘progressive’ in its jurisprudence too.
Progressiveness and conservatism are in the eye of the beholder. What one observer might call conservative may be interpreted by others as wildly progressive, and vice versa. With this blog post, we sought to argue that, at least as far as the Court is concerned, the truth is probably somewhere in the middle: a Court that is neither wildly conservative nor wildly progressive. Certain developments in its case law may venture towards one side or the other, but in general its case law cannot unequivocally be said to be either. More empirical research would be necessary to gauge whether one ideology influences the Court’s decision-making more than the other. The reality is that the Court is often being pulled in both directions by conservative governments and progressive human rights defenders, and that its decisions are at times a reflection of the balance it must strike between both sides.
Yet, this reality does not mean that we should not advocate for a more expansive interpretation of the Convention. Doing so would be akin to giving in to the narrative that the Court is often too expansive in its interpretation. Moreover, if the Court’s decisions are often the outcome of a balancing exercise between progressive and conservative considerations, remaining silent on the progressive side might give more power to ‘conservative’ viewpoints in the Court’s deliberation process. What we do need, is an increased awareness of the Court’s vital work and a co-ordinated and concerted effort to push back against the misinformation and misconceptions that fuel many of the calls for States to leave the Convention or for the system to be reformed.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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