In Search of ‘Red Lines’ in the Jurisprudence of the ECtHR on Fair Trial Rights

Abstract

The use of proportionality and balancing by the European Court of Human Rights (ECtHR) is inconsistent and does not provide clear guidelines from which policies can be drafted that could strike a fair balance between individual rights and public interests while not impairing the essence of the rights at stake. While ad hoc and unprincipled balancing may be justified on the theoretical level, on the practical level a policymaker seeking to understand which infringements constitute clear violations of the European Convention on Human Rights (ECHR) is left confused. This article adds clarity to this state of bewilderment by breaking down several aspects of the ECHR rights to a fair trial into clear-cut ‘red lines’, or minimum thresholds of protection. Overstepping those could result in a violation of the right concerned. Identifying these red lines is intended to assist legislators and policymakers in drafting laws and policies that conform with the obligations of their states under the ECHR, and to instruct policymakers outside the member states of the Council of Europe. Because of its unique characteristics, as well as the volume and breadth of its case law, the jurisprudence of the ECtHR can be a lodestone for the consolidation of an international human rights community based on shared values. The unique contribution of this article is the assessment of ECtHR jurisprudence not only on its own merits, but also in comparison with the jurisprudence of other international courts.