UNIVERSITÄT ZU KÖLN

The Argument of the Country Context in the Case Law of the European Court of Human Rights: Towards an Ever-fairer Assessment of a Case (working title)

Anna Kačmaříková

Invoking the “context” of a specific country under scrutiny is a recurring phenomenon in the case law of the European Court of Human Rights. However, the specific modalities of its usage, as well as its origin, impact, and appropriateness, remain unexplored. The dissertation project thus seeks to map, critically evaluate, and suggest recommendations for the Court’s use of the argument of the context in this sense.

The Court itself has openly stated that while adjudicating the variety of cases, it did not operate in a vacuum.[1] In this regard, it has employed the argument insinuating that the context of the specific country does play a role in numerous judgements, namely in those with political outreach. Hence, the context in its different variations (e.g. political, historical, social or even geopolitical) openly mattered for the assessment of the lawfulness of the detention,[2] right to stand for elections,[3] access to public service,[4] restrictions imposed on media,[5] admissibility of the content of public speech,[6] and many others. Although the overall use of such contextual argumentation appears to be rather discreet, in some cases, the involvement of the context seems to amount to the factor tipping the scale of justice.[7]

The dissertation project delves into the utilisation of the argument of the country context, focusing on the following questions: What are the different instances of the usage of the contextual argument, and what are its specific functions? What is the actual impact of employing the context for the outcome of the case? What are the conceivable patterns pertaining to the use of the context? Accordingly, the aim of the analytical part of the PhD project is to comprehensively map the use of the argument of the country context, explore its multifarious dimensions, provide insight into the spectrum of functions it can confer, and gauge its actual significance and impact.

The mere idea of such an analysis inevitably leads to the following question: Should context matter at all? As the second part of the title – Towards an Ever-fairer Assessment of a Case – suggests, considering the context can arguably be instrumental in reaching a fair evaluation of a specific situation. At the same time, assuming that a higher level of transparency is essential for this approach to be inherently fair, the dissertation aspires to provide a ground for a constructive debate on the appropriateness of contextual argumentation and suggest ways for its better theoretical embedding.

Due to the required scope of the dissertation, the project delves into a limited ambit of contextual argumentation, focusing exclusively on the notion of the country context. However, the implications of the proposed research have the potential to be rather far-reaching as they could open up a broader discussion on the role of the context in shaping judicial reasoning and the need for its better understanding and anchoring in the general doctrine, which has remained far from taking such an element into account.

[1] Ždanoka v. Latvia (no. 2), app. no. 42221/18, 2024, § 55.

[2] Selahattin Demirtaş v. Turkey (no. 2), app. no. 14305/17, 2022.

[3] Tanase v. Moldova, app. no. 7/08, 2010; Ždanoka v. Latvia, app. no. 58278/00, 2006.

[4] Rekvényi v. Hungary, app. no. 25390/94, 1999.

[5] NIT S.R.L. v. the Republic of Moldova, app. no. 28470/12, 2022.

[6] Perinçek v. Switzerland, app. no. 27510/08, 2015.

[7] Ždanoka v. Latvia (no. 2).