Guest author: Margarida Luciano Martins
In this short paper I intend, to the best of my legal and research abilities, to analyse the issue of the expansion of the scope of some European Convention on Human Rights (henceforth mentioned as ECHR or the Convention) rights by the European Court of Human Rights (ECtHR, the Court or the Strasbourg Court), and evaluate whether the Court is overstepping its competences in its evolutive and dynamic approach on human rights protection or if its action is legitimate, in light of international law and also in light of the theory of the separation of powers, according to which legislative bodies are the sole entities entitled to promulgate legal rules and define their scope, and judges are empowered to simply interpret them (with an arguable degree of creativity, depending on critics or supporters of judicial activism, as we shall see). This action by the ECtHR is often labelled judicial activism, which, in a nutshell, is a judicial philosophy holding that the courts can (and should) go beyond the applicable law to consider broader societal implications of its decisions. This is a term frequently used pejoratively, as we shall see later.
This paper will focus on a few key judgements of the ECtHR in which the protection awarded by some ECHR rights (namely the right to health, the right to education, non-discrimination and the right to private and family life) was extended to provide wider protection to the applicants and, as a result, to whole communities or even the environment – as an environmentalist who deeply regrets the lack of a provision providing for environmental preservation or protection as such in the ECHR, I was immediately drawn to this judicial practice of the ECtHR. We’ll see the impact of international social and legal trends on the Court’s decision-making process and I shall also try to explain different views on the Court’s activism by academics and legal professionals, and adopt a favourable or opposed position myself on this practice, based on this paper’s findings.
The Crux of the Matter
1. The ECtHR and Judicial Activism
The ECHR is a well-known document for those who study fundamental rights in Europe, or even globally. Notwithstanding, as is ever the case with legal texts, we must investigate the case-law of the Court to see the law in action. And here we can see that the ECtHR has been in the avant-garde of human rights law through its judicial activism. Let us then weigh, first of all, different views on judicial activism in theory, before delving into the case-law of the Court and observing how it plays out in practice.
The judicial activism of the Court has been accepted by some authors, such as Justice Thijmen Koopmans, a former judge of the European Court of Justice in Luxembourg. He observed approvingly that the ECtHR was known for its judicial inventiveness. Justice Koopmans believed that judicial activism was rooted in the balance between societal evolution and the institutions in power, thus noting that judicial inventiveness does not always suggest illegitimate judicial behaviour (overstepping of competences or undermining of the separation of powers), since some level of Court discretion is indispensable in any Court’s action. I quite agree, especially when we speak of Courts whose precedent is key for our interpretation and understanding of the legal texts themselves.
“I find this view rather cynical, especially when it comes to such politically conditioned and humanely sensitive legal texts as the ones concerning human rights.”
Justice Paul Mahoney, on the other hand, offered a quite critical definition of judicial activism, which he stated existed when ‘judges [modify] the law from what it previously was or was stated to be in the existing legal sources, often thereby substituting their decision for that of elected, representative bodies’. Under this approach, judicial activism would entail improper law-making by judges, falling outside their competences and constituting illegitimate behaviour under the separation of powers, thus suggesting that Courts should constrain themselves to their traditional roles as interpreters of the law, without creativity – this is labelled ‘strict and complete legalism’. I find this view rather cynical, especially when it comes to such politically conditioned and humanely sensitive legal texts as the ones concerning human rights.
It has been said that the role of the ECtHR as a developer of legal doctrines on human rights is based on the object and purpose of the Convention itself. The Strasbourg Court has reiterated, in various interpretations of the Convention, that:
In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, § 239). Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37, p. 16, § 33). In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with “the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society” (see the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 27, § 53).
The Court has often leaned on international trends and social paradigms in its reasoning to protect rights of minorities, such as the rights of transgender people, for instance, as exemplified in the case Christine Goodwin v. the United Kingdom. I support this evolutive approach to human rights interpretation. As the Court itself reaffirmed:
It is of crucial importance that the Convention is interpreted and applied in a manner that renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement.
The Court does comparative research to assess the evolution of human rights in the international and national spheres, often in co-operation with third parties such as NGOs, which provided for closer contact and a deeper knowledge of the problems people and communities face, thus providing for more effective and dynamic protection of fundamental rights.
A good example of the importance of developments on international trends and comparative law instruments is found in regards to the rights of sexual minorities, which lead to a finding of violation under Articles 8 (right to private life) and 12 (right to marry) in the previously mentioned case of Christine Goodwin v. the United Kingdom, since the Court relied on ‘the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals [term uses by the Court to mean gender identity of post-operative transgender people].’ 
The judicial activism of the Court can be illustrated in the field of environmental rights as well. The Court made landmark decisions in Lopez Ostra v. Spain and Guerra and others v. Italy. Since the ECHR lacks a provision on environmental protection, these key judgments introduced a protection of environmental rights under Article 8 of the ECHR (right to private and family life), following increasing attention by the international community with regards to environmental protection. It can be said the Court has established a positive obligations doctrine, and extended it to several provisions, providing for the widening of the scope of the Convention in the field of various rights such and the right to health, improving the standard of protection for applicants. This broad interpretation of Convention rights gives the Court ability to deal with real, systemic, and large-scale human rights problems affecting many people, by requiring states to take positive obligations to effectively protect vulnerable groups, which I find overwhelmingly encouraging.
In other judgments in which the ECtHR has broadened the scope of Convention rights, such as the prohibition of discrimination contained in Article 14, the Court has attempted to narrow the rather wide margin of appreciation that contracting parties enjoy in assessing whether different treatment is justified by adopting a more proactive role in the fight against various kinds of discrimination as well as raising the ECHR standards to those that are in place at national level in the contracting states and at the international level. The underlying idea of this analysis is represented by the interpretation of the ECHR as a ‘living instrument’:
The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. (…)
Further important cases to be mentioned here are Oršuš and Others v. Croatia,  in which the Grand Chamber asserted there was discrimination in the Roma applicants’ enjoyment of their right to education due to their ethnicity; Opuz v. Turkey, where the government of Ankara was condemned for violating its obligations to protect women from domestic violence, and Kozak v. Poland, which recognised equal rights to LGBT+ couples. This trend was reinforced in Schalk and Kopf v. Austria, in which the Strasbourg Court adjudicated on the refusal to grant a homosexual couple the right to marry, protected by Article 12 of the ECHR.
By reinforcing that the enjoyment of rights protected under the ECHR must keep up with the times and so be effective, the ECtHR simply reaffirms its veritable function: the promotion and protection of human rights, especially of vulnerable people (such as minorities and targeted and marginalised groups). As observed in the aforementioned case-law, ECHR rights must be interpreted and defended, taking into account the evolution of society and legal trends in the European and international communities. Finally, it is relevant to stress that, reading through the Vienna Convention on the Law of Treaties, the ‘living instrument’ interpretative approach of the Strasbourg Court does not appear to be in inconformity with this Convention.
The ECtHR views the Convention rights as subject to evolution and changeable in their understanding over time. This updating approach is, as the ECtHR defends, not an overstepping of its competences, but rather the necessary approach to adequately fulfil the purpose of the Convention, which is to provide effective and meaningful protection of human rights to individuals.
So, naturally, judicial activism has led the Strasbourg Court to update and expand the Convention rights to keep up with societal developments and changes in paradigms. The ECtHR intends to provide for an interpretation of the Convention that ‘upholds individual rights as practical and effective, rather than theoretical and illusory protections.’
One of the best and most impressive examples of this approach pertains to Article 8 of the Convention, which concerns the right to respect for private and family life. The ECtHR has, over time, broadened the scope of this provision to include a wide range of rights that probably weren’t envisioned by the drafters of this provision, such as physical and psychological integrity, rights of sexual minorities, gender, data protection, and even environmental protection. I, for one, consider this development necessary to provide effective protection by overcoming (potential) omissions in the text of the ECHR, which doesn’t contain provisions that protect these rights as such.
“Societies and paradigms evolve and change, and so the Court’s interpretation must evolve with them to be effective, relevant and just – and here enters the role of judicial activism.”
The question addressed in this paper, in my view, goes to the core of the raison d’être of the Strasbourg Court. Its ‘living instrument’ approach is, as viewed by some authors, as a necessary consequence of ensuring that human rights can achieve their primary purpose – to effectively protect individuals.
Considering these findings, it is my belief that the ECtHR is not going too far in expanding the scope of certain rights under the Convention but, rather, this expansion is part of the fulfilment of its very purpose. Legal documents are, inevitably, dated, and reflect the reality of the times in which they were drafted or revised, as well as political choices that may quickly change soon after. However, as discussed previously, societies and paradigms evolve and change, and so the Court’s interpretation must evolve with them to be effective, relevant and just – and here enters the role of judicial activism.
All in all, it is my conclusion that judges, in their interpretative role of human rights and fundamental freedoms, may always broaden the scope of a provision to protect people in need, since this doesn’t violate the principle of legality nor does it sidestep the will of contracting states, since it derives from the very nature of a Court’s work and purpose. Besides, as respected constitutional law scholar Paul Freund once said (talking of the United States Supreme Court), Courts “should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era.”
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 Thijmen Koopmans, The Roots of Judicial Activism in Protecting Human Rights: The European Dimension, F. Matscher & H. Petzold eds., 1988. Justice Koopmans compares the ECtHR to the Supreme Court of the USA.
 Koopmans, at 317-18, 327
 Paul Mahoney, Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin, 11 HuM. RTs. L.J. 57, 58 (1990)
Jukka Viljanen, The European Court of Human Rights as a Developer of General Doctrines of Human Rights Law. University of Tampere, Tampere University Press 2003
 Soering v. the United Kingdom, App No. 14038/88 (ECHR, 7 July 1989) § 87
 Christine Goodwin v. the United Kingdom, App No. 28957/95 (ECHR, 11 July 2002)
 ibid § 74
ibid § 85
 Lopez Ostra v. Spain , Case No. 41/1993/436/515 (ECHR, 9 December 1994)
 Guerra and Others v. Italy, Caso No. 116/1996/735/932 (ECHR, 19 February 1998)
 D. v the United Kingdom, App No. 30240/96 (ECHR, 2 May 1997).
 See Siliadin v. France, App No. 73316/0 (ECHR, 26 October 2005), case in which the ECtHR tackles the trafficking of human beings into Europe and their abuse by extended Article 4 (Prohibition of slavery and forced labour) to prohibit domestic slavery. The Court considered that limiting the scope of the provision would amount to rendering it ineffective, and referred to «contemporary norms and trends» which require from the member States’ positive obligations under Article 4 of the Convention.
 Carmelo Danisi, How far can the European Court of Human Rights go in the fight against discrimination? Defining new standards in its nondiscrimination jurisprudence, International Journal of Constitutional Law, Volume 9, Issue 3-4, October 2011, Pages 793–807.
 Tyrer v. United Kingdom, App. No. 5856/72, (ECHR, 25 April 1978), § 31
 Oršuš and Others v. Croatia, App No. 15766/03 (ECHR Grand Chamber, 16 March 2010)
 See also D. H. and Others v. the Czech Republic, in which, under Article 14 together with Article 2 of Protocol 1, the Court found that the special schools for Roma children discriminated the children’s right to education and has a negative social impact on the Roma population
 Opuz v. Turkey, App No. 33401/02 (ECHR, 9 June 2009)
 Kozak v. Poland, App No. 13102/02, (ECHR, 2 March 2010)
 Schalk and Kopf v. Austria, App No. 30141/04 (ECHR 24 June 2010)
 Mamatkulov and Askaraov v Turkey, App No. 46827/99, 46951/99 § 121
 Juhnke v. Turkey, App No. 52515/99 (ECHR, 13 May 2008) § 70
 Van Kück v. Germany, App No. 35968/97 (ECHR, 12 July 2003) § 69
 Chirstine Goodwin v. United Kingdom, App No. 28957/95, Grand Chamber (ECHR, 11 July 2002)
 Rotaru v. Romania, App No. 28341/95, Grand Chamber (ECHR, 4 May 2000)
 López Ostra v. Spain, App No. 16798/90 (ECHR, 9 December 1994); Hatton and others v. United Kingdom, App No. 36022/97, Grand Chamber (ECHR, 8 July 2003); Taskin and others v. Turkey, App No. 46117/99 (ECHR, 10 October 2004)
 S. Theil, Is the ‘Living Instrument’ Approach of the European Court of Human Rights Compatible with the ECHR and International Law?. (2017), European Public Law, 23 (3), 587-614. https://doi.org/10.17863/CAM.8478
 Transcript: Interview with Supreme Court Justice Ruth Bader Ginsburg, September 16, 2013, WNYC Studios