This week we have a very special guest looking at the European Court of Human Rights. What is it? Where does it come from? And how does it work in practice?
The European Convention on Human Rights is often seen as one of the defining achievements of post-war Europe. Designed to protect fundamental freedoms and uphold democratic values, it has shaped the legal landscape of the continent for more than seventy years. But it is also increasingly contested, sitting at the centre of debates about sovereignty, migration, democracy, and the limits of judicial power.
In this episode, we unpack what the Convention and the European Court of Human Rights actually are, how they work in practice, and why they continue to provoke such strong reactions. Where did the system come from? How has it evolved over time? What kinds of cases reach the Court, and how are decisions made?
Our guest is Marko Bošnjak, former President of the European Court of Human Rights and now a judge at the Court of Justice of the European Union. Drawing on his experience at the highest levels of European law, his conversation with Prof Alan Renwick gives us a clear history and guide to the institutions that help define the rights of hundreds of millions of people.
[00:00:04] Alan Renwick: Hello, this is UCL Uncovering Politics, and this week we have a very special guest looking at the European Court of Human Rights. What is it? Where does it come from, and how does it work in practice?
Hello, my name is Alan Renwick and welcome to UCL Uncovering Politics, the podcast of the School of Public Policy and Department of Political Science at University College London.
The European Convention on Human Rights is seen by many as one of the crowning achievements of liberal democracy in the 20th century. Enshrining, and through the European Court of Human Rights, upholding core political rights and civil liberties, it's intended to secure key parts of the bedrock upon which democratic societies in Europe can flourish.
Equally, the convention and the court are also controversial. Their detractors see them as impeding the will of democratic majorities and of protecting what critics see as undeserving groups, criminals, and so-called "bogus asylum seekers" are the most often mentioned against the interests of the public at large. Indeed, various proposals for possible reform of the convention are currently on the table.
But amidst all these debates, how many of us really understand what the European Convention on Human Rights and the European Court of Human Rights actually are and how they function, where the convention came from and how has it changed over time, are questions that many of us just don't know the answers to, and what cases go to the court and how does it decide them?
Such questions are vital and there is no better person to answer them than our guest today. Marko Bošnjak is one of Europe's most senior lawyers. He has had a distinguished career, both as a legal, academic and in legal practice in his native country of Slovenia. He has written extensively on criminal law, criminal procedure, human rights, constitutional law, international law, and criminology. In 2016, he was appointed as a judge on the European Court of Human Rights. He remained in that role until 2025, serving as the court's president for the final year of that term. Then last year, he became a judge on the Court of Justice of the European Union, and we're also privileged to have him as an honorary professor, here at UCL.
Marco, if I may be so informal, welcome to UCL Uncovering Politics. Really fantastic to have you on today. And we should maybe start by saying that, given that you are a serving judge, we will of course not be getting into matters of political controversy in our contra, in our conversation.
Um, but hopefully we will be providing some of the kind of background understanding that it's essential to have for engaging with debates that are current at the moment on these issues. So. Let me maybe start with the most basic question of all. What is the European Convention on Human Rights?
[00:03:11] Marko Bošnjak: First good morning Alan, and thank you for having me. It's my pleasure to be here today with you and exchange on such interesting and important matters.
First regarding the convention. The convention could best be described as a mutual pledge between the European nations, that each of them will safeguard and protect human rights and fundamental freedoms of everybody under its jurisdiction.
To understand it better, we need to put it into a historical perspective. It was drafted and signed in the aftermath of the Second World War. In light of the atrocities and utter destruction that the Second World War brought. The leaders of the time thought that the best way to protect Europe and its nations from history repeating would be to protect human rights and fundamental freedoms, the rule of law and true democracy as core values in those countries. So this was what led the European nations. 10 at the time to form first the Council of Europe, and then very soon sign the convention.
[00:04:24] Alan Renwick: And who were the key people in that process?
[00:04:26] Marko Bošnjak: Well, actually the Brits played the crucial role. It was all during the Second World War in 1943 that Winston Churchill spoke openly about creating a Council of Europe. An idea he repeated later in his famous Zurich Speech and at the Hague Conference in 1946 and 1948, respectively. He was referring there openly to the charter of rights to be signed and a sort of a court of justice, which would then resolve any disputes about between the nations on those topics.
Furthermore the Council of Europe treaty was signed here in London. And later on when the Convention on Human Rights was assigned the British lawyers played a crucial role in its drafting. The UK was one of the first 10 countries to sign it. And later on I believe even that the UK was the first to ratify it.
The seat of the Council of Europe and the seat of the court is in Strasbourg, and it was suggested by the then Foreign Secretary of the United Kingdom, Sir Ernest Bevin, to, to make Strasbourg the seat of the court.
[00:05:42] Alan Renwick: Gosh, I didn't know that bit. Do you know why? What was the significance of Strasbourg?
[00:05:47] Marko Bošnjak: I think it's for symbolic reasons with its difficult history.
[00:05:51] Alan Renwick: Yes, of course.
[00:05:52] Marko Bošnjak: Between France and Germany, it was symbolic to bring the peoples of Europe together on that site.
[00:05:58] Alan Renwick: Yes. Very interesting. And what's the content of the convention and what, what, what does it cover? What are the kind of key principles that are enshrined in the convention?
[00:06:07] Marko Bošnjak: Yes. On one hand, the convention contains several basic fundamental human rights and freedoms which form the bedrock of the European civilisation and society. And here too the role of British or common law, legal thought is central.
For example, you see several traditional rights like habeas corpus the idea of fair trial and similar reflected in the convention. On the other hand the European Convention and Human Rights also brought about the creation of a court, which would hear individual petitions claiming that there has been a violation of human rights and fundamental freedoms. This is precisely a common law idea that justice arises through dealing with individual cases that individual bring before an independent court.
And um, the court and the convention have been true to its promise I would say in the sense that throughout time the court has three jurisprudence profoundly reshaped European legal thought and European legal landscape.
[00:07:24] Alan Renwick: Hmm. And it's really interesting that you mentioned the court there and because I was just thinking around the same time, so late 1940s the UN's Universal Declaration of Human Rights was being written as well. Um, and you know, in many ways these two documents, the Universal Declaration and the European Convention are similar, but the European Convention is different in the sense that there is the court there that is able to uphold cases and, and judge cases with reference to it, which isn't the case for the the Universal Declaration.
[00:07:54] Marko Bošnjak: Absolutely. This is one of the main added values of the convention, which, in addition to that is a convention, which is a stronger source of international law. Absolutely. And rights enshrined by the convention are to, in, in many ways, um. More clear, more specific and similar.
[00:08:17] Alan Renwick: So what then is the European Court of Human Rights, h how we've, we've said that it's located in Strasbourg but how, how has it constituted, and what role does it play?
[00:08:27] Marko Bošnjak: Well, from its very beginning it was an organ deciding on either individual petitions or interstate actions, claiming that human rights and fundamental freedoms have been violated through time. The Council of Europe grew to at the, say at, at some point 47 member states. Now with Russia not no longer being a member of the Council of Europe it's 46, so it's now 46 judges sitting on the court, one elected in respect of each and every high contracting party to the convention.
[00:09:05] Alan Renwick: Yeah. So it's important for listeners to remember. People sometimes get confused between the Council of Europe and its connected institutions and the European Union. But they are of course entirely separate organisations with very different memberships. So the Council of Europe, which is the kind of parent body if you like, for the European Convention and the European Court of Human Rights. Is a much, much bigger organization in terms of membership than the, the European Union is.
So those judges, so. Individual judges, chosen by each of the member states so that , the member states themselves choose their, their judge on the court, is that?
[00:09:39] Marko Bošnjak: No, actually not
[00:09:40] Alan Renwick: Uhhuh.
[00:09:40] Marko Bošnjak: What the member states do, they propose a list of three candidates to the Parliamentary Assembly of the Council of Europe. And then in the end it's the Parliamentary Assembly of the Council of Europe, electing one of the three candidates and the Parliamentary Assembly of the Council of Europe in its turn, it's composed of members of parliament, of national parliaments, of the member states, so it's British parliamentarians, Slovenian parliamentarians, French, Latvian, and so on sitting on the Parliamentary Assembly of the Council of Europe.
And I vividly remember when I was one of the three Slovenian candidates in 2016, I was heard by a special committee of the Parliamentary Assembly of the Council of Europe, and one of the members who was a member of the British Parliament, Lord Anderson. He was putting so many questions to me, and we had such an interesting and exciting exchange. I would say that at some point, the then president of that committee said, well, the two of you, we now really need to stop because there are other candidates to be heard so we really cannot continue any longer.
[00:10:51] Alan Renwick: And what was your path to that point of being in that room? Um, I talked a little bit about your career in the introduction, but you know, how does one get to be nominated to be a judge on the court?
[00:11:02] Marko Bošnjak: Well, each country has its own procedure. However that procedure needs to allow for really the best, best candidates from a given country to be put on the list. And the national procedure is also supervised by certain bodies of the Council of Europe. Now I personally was never a judge prior to becoming a judge on the European Court of Human Rights which is interesting and surprising for some people. However, this allows for the judges of Strasburg to be of very different professional backgrounds. Some are career judges. They start in the court of first instance of their country and they slowly climb up all the way to their supreme or constitutional court, and later on become Strasbourg judges. There are others who are practicing attorneys, academics, they have some other important legal jobs and through that experience, they somehow, um, made their way to Strasbourg.
[00:12:02] Alan Renwick: Mm-hmm. Let's get on to discussing how the court functions in practice, and I guess one aspect of this, which you've begun to touch upon a little bit in your earlier answers is around how the court actually interprets this convention, um, that is before it.
And I guess some listeners, um, will be familiar to the fact that there are different kind of legal philosophies about how judges interpret legal instruments, particularly constitutional instruments and, and these kinds of international human rights instruments. There are, so there are sort of, um, originalist views that focus on the original meaning of the text or the original intentions of the people who wrote that text. And then there are also what are sometimes called evolutionist interpretation or evolutionist approaches or, or kind of living constitution approaches that see it as necessary for the meaning of the text to change over time.
You are much more knowledgeable about these things than I am. So feel free to embellish and correct anything that I've said there about those, those different approaches. But also what is the approach taken by the European Court of Human Rights?
[00:13:12] Marko Bošnjak: First of all, the convention is a fairly abstract document in the sense that the terms which you find in the text of the convention do need interpretation. For example, it prohibits torture. However one needs to see in a face of of a specific case before the court what acts can actually be qualified as torture when it comes to say independent court being an element of a fair trial what does that actually mean?
Independence of a court when it comes to right to private life. What can be qualified as an element of private life and similar. So through time, Strasbourg, the Strasbourg court, like any other court dealing with abstract terms needed to interpret those terms and needed to decide on what approach to interpretation it would take.
And as you mentioned yourself, there are two basic possible approaches to that. One is the so-called originalist approach, which always asks about the intentions of the drafters of the instrument and the historic context that led to the adoption of it instrument. So to say, what did the founding fathers of the convention want, wish for and similar?
Now that approach has several advantages in the sense that, it's more foreseeable, it's, um, it limits to a large extent the judicial activism and so on. But on the other hand, it stays in the past to an extent, and it does not readily provide answers to situations which could not possibly occur at that time, say, when it comes to the regulation of internet, when it comes to climate change and its effect upon human rights and similar, whereas the evolutionist approach, which, or the what would I say the evaluative approach asks about how to make rights in the instrument, practical and effective in the light of present day circumstances.
In that sense. It tries to adapt the text to not just to technological advances and changes in human society, but also to changes and shifts in moral, legal, social assessment of certain phenomena, which possibly existed already in the past but are reassessed differently today.
Now the European Court of Human Rights in its interpretation largely follows this second approach, namely the evaluative one. However, it is moderated by several other techniques or rules in the interpretation of the convention.
The first of all, the so-called subsidiarity principle, which lets the member states first decide on any possible violation on human rights and fundamental freedoms, and the Strasbourg Court can only interfere, intervene once the individual exhausted all legal remedies domestically.
Furthermore the doctrine of margin of appreciation and of the European consensus which lets, which considers that the member states are best placed in, in order to assess the needs of their societies and that the Strasbourg Court will only interfere where when there is a gross departure from the idea of the text. And if there's no European consensus on a specific issue, the Strasbourg Court on its own, will in principle not impose it, depending of course on the nature of the right, of the situation at stake and similar. It's quite complex, but this is where we are.
[00:17:06] Alan Renwick: No, that's a really clear overall statement. Thank you. Shall we, um, see how that applies in some particular cases? So, one of the articles of the convention that you alluded to, there was Article Three on the prohibition of torture, which in English at least says, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. So as you suggested there. The court in its early years must have had a lot of work to do in establishing what exactly do does torture mean? What exactly do these terms inhuman or degraded, degrading treatment or punishment mean?
[00:17:44] Marko Bošnjak: Mm-hmm.
[00:17:45] Alan Renwick: I mean, what are the resources that it was able to draw on initially in order to kind of flesh out the meaning of those terms?
[00:17:53] Marko Bošnjak: Well, regarding that, um, the court resorted to evaluative interpretation, not just in the definition of these acts, but also in designing the so-called positive obligations of the states in this respect.
So the obligation of the state is not just not to torture or not to subject somebody within a ju jurisdiction to other forms of ill treatment, but it's also to protect individuals from ill treatment, from by third persons. These are the so-called positive obligations, which, um, I suppose were not in the head of the drafters of the convention but the Strasbourg court through time thought that this was absolutely necessary in order to make the prohibition from Article Three of the convention practical and effective and not just theoretical and illusory.
[00:18:50] Alan Renwick: Hmm. And when it's doing that. Um, how, how, how does it define what counts as inhuman? What counts as degrading? What, what's the process that the court is going through in order to establish the meaning of these terms?
[00:19:06] Marko Bošnjak: Well, it's. It's, I would say a two way approach. One being from abstract to more concrete in the sense that it tries to define certain terms, um, in their abstract form and apply it to a to a given situation.
The other way around is to go from concrete to more abstract in the sense that it identifies a specific treatment as a form of a new treatment prohibited by Article Three, but then through cumulation of that case law comes to a more general definitions as to what such treatment is. And this you can see also when it comes to issues or, or infringements with private life, when it comes to terms which you can find in in those articles when it comes to relative rights to justification of infringements like, um, legitimate aims, the necessity in democratic society. Say, what is democratic society?
[00:20:12] Alan Renwick: Mm-hmm. Mm-hmm.
[00:20:13] Marko Bošnjak: For example. Namely just to explain for your, listen for our listeners, um, when it comes to relative rights, the rights which can be infringed upon in certain situations, there is a certain test saying that such infringements are um, allowed in case the interference has been authorised by the law that it follows a legitimate aim, one of the legitimate aims from the convention and that has been necessary in a democratic society.
There's a question, what is a democratic society? And the court explained through its case law that it's a society marked by tolerance, pluralism, and broad mindedness that it's not any democratic society.
[00:20:59] Alan Renwick: Yeah. Um, I mean, I guess critics of the court are concerned that, um, there is too much kind of interpretation and too much freedom for judges to introduce their own thinking on these subjects rather than following the democratic will of the, of the continent of Europe, as has been expressed through the, the writing of the convention and other processes. Um. How would you respond to that concern?
[00:21:32] Marko Bošnjak: Well, I would say that judges are far from being completely free in their interpretation of the convention first of all, they are still bound or they're primarily bound by the letter of the convention. And there have been cases where the court identified a situation where it would be perhaps more practical and effective if a certain protection could be granted to an individual. However the letter of the convention was such that it did not allow for, for stretching it out so far.
Furthermore, when interpreting rights the judges are not completely free to apply their own view on what the specific right means, they are bound by the European consensus to this extent. Let me give you an example. For example, in the case of Fedotova and Others v. Russia, there was a question as to whether a legal protection should be granted to same sex couples on the basis of right to private life, Article Eight of the convention.
And here in principle, there have been identified three different approaches within Europe. One where couples where, where same sex, sex couples can marry and enjoy the very same rise as heterosexual couples. There is a group of states where homosexual couples have some rights but they're not the same as for heterosexual couples and they cannot marry. And there is a number of countries where at least at the time when this ruling was handed down, there were no rights or no legal protection whatsoever granted to same sex couples. Now the question in that case was not whether Strasbourg judges themselves think that same sex couples should have a right to marry or whether they think that this specific protection should be granted to them.
But they looked first of all on the on the the idea of the right to private life and considered that it's at the heart of that, right? That somebody can form a couple with a person to to whom he or she's attached, and that this should somehow be protected. So there is virtually no margin of appreciation and no leeway for the countries of the Council of Europe to decide whether they will or will not give at least some protection and some legal recognition to same sex couples. So those countries being in that third group providing for no protection are automatically in violation of Article Eight of the convention.
However, when it comes to the extent or specific the, the, the, the specific content of that protection here, countries do enjoy certain margin of appreciation. It's not, it should not be an empty shell, just some paper saying, well, rights are protected, but then there's no content to it. However countries do have margin of appreciation, as I say what to do and where to fare so it's not a question whether a specific Strasbourg judge would wish or would not wish to give a specific recognition to, to a same-sex couple.
[00:24:58] Alan Renwick: Yeah, no, that's a really interesting example. And I guess what I'm wondering is, so presumably had the court ruled on the rights of same-sex couples in the 1950s, it would've come to a very different conclusion to the conclusion that it would reach today.
And I guess I'm wondering what is it that's different, um, between those different times that, um, is the basis for the different conclusions that the court reaches in those, in those different circumstances? So what, what is it about the circumstances that allows the court to come to a different judgment?
[00:25:35] Marko Bošnjak: I think it's a broader moral, social, and legal attitude towards same sex couples. And to give one more example on a UK case Dudgeon v. United Kingdom which was about criminalisation of sexual acts between adult consult consenting um, same sex couples or same persons of the same sex.
Here the court found a violation without asking whether there existed European consensus or what the social views about such sexual interactions were at that time, it considered that it's that, that this freedom strikes at the core of an well of what an individual is and how he lives his or her private life. So it found a violation in this respect.
[00:26:30] Alan Renwick: Hmm. We've been talking there about kind of one mechanism by which the the convention effectively changes over time, even, even if the text stays the same through interpretation by the court. Um, but of course, I, I mean, I guess it is the case that if, um, political authorities across Europe are really unhappy with the interpretations and feel that the interpretations that the court is offering are, did not actually reflect, um, consensual views across the continent, then it is possible for them to change the text and they can amend the convention. Um, how, how much has that actually happened? How, how much has the convention that the text of the convention changed over time?
[00:27:09] Marko Bošnjak: The text of the convention has changed through time by several protocols to the convention. In total, there have been 16 protocols by now. In one part they added certain rights and freedoms to the convention.
For example, already the first protocol was signed to guarantee right to property, um, right to vote, and right to education. There have been several others adding further rights to the convention.
Some have changed the proceedings before the court and even, um, reformed the convention system in the sense that there is no two step system any longer. First the European Commission on Human Rights and later the, the court, but the individuals can turn directly to the court. And we now have the so-called permanent court since 19 late 1990s.
Now, I am not aware of any protocol by now whereby the countries would amend the convention because they were deeply dissatisfied with the way the court interpreted the convention, and they wanted to cut wings to the court as such. However, of course, this always is an option for the high contracting parties to do.
[00:28:24] Alan Renwick: Hmm. And similarly, there's some talk now about what, what people are calling, if I remember correctly, an interpretative declaration that the, the political bits of the Council of Europe could issue offering kind of guidance really to the court, um, in terms of how it should be interpreting the text of the convention. Is, is that, is that a concept that kind of exists and is established in Europe, in international law, this, this kind of interpretative declaration?
[00:28:53] Marko Bošnjak: Well, the convention is an international treaty, which needs to be interpreted in line with the Vienna Convention on the Law of Treaties. And here of course the will of the parties is the primary source of interpretation of international treaties. Now, if parties agree and, and write down that it's their will to interpret the treaty in a certain way. This absolutely has certain, or should have certain impact upon its interpretation.
[00:29:24] Alan Renwick: Um, just one aspect of the overall system here that we haven't talked about is the enforcement of the judgments of the European Court of Human Rights, and, you know, famously no court is able to, no, no court has its own army that it can use or its own police force that it can use in order to enforce judgments. I mean, how, how does enforcement work in the case of the convention system?
[00:29:49] Marko Bošnjak: Well, as a matter of fact, the national courts do have mechanisms of enforcement which can resort to force and similar in the end, in order to force the parties to comply with the rulings. This is not the case, of course, in the international perspective, at the international level. Um, some calculations say that the level of compliance with the judgments of the European Court of Human Rights is somewhere around 80%, which is far better when compared to some other international courts. Now, one can,
[00:30:25] Alan Renwick: I think, in fact, you're referring there to the analysis of our colleague here at UCL Veronika Fikfak.
[00:30:29] Marko Bošnjak: Yes, indeed. Absolutely. It's a, it's a great analysis and, UCL is doing great job in following what and and analysing what the European Court of Human Rights is doing. It's, it's a prime example of interaction between theory and practice.
Now coming back to these figures, some can see this figure of 80% as glass being 80% full, or glass being 20% empty. Um. And there obviously is a room for improvement. And in particular, there are some very delicate situations where judgments of the court have still not been enforced.
Now you were asking about the mechanism of enforcement, normally it does not go through the European Court of Human Rights directly, but through the Committee of Ministers of the Council of Europe. So, it's a political and governmental supervision or rather than, than judicial, but it can come back to the court in one way or the other and not just through that, um, so-called infringement proceedings which were, um, introduced into the convention system by protocol number 14. And were by now only used twice, but also through a rather regular mechanism.
I will give an example precisely of the United Kingdom. And the question of voting rights of prisoners, which were addressed through the famous famous judgment Hirst No. 2 above all against the United Kingdom, and the violation found there. Now the Committee of Ministers established in 2018 that the matter had been resolved at in a satisfactory way at the national level through certain administrative reforms.
And it was actually in 2025 in the case of Hora v. the United Kingdom where the court re- addressed the matter through an individual application, which came before the court, and found that indeed in the view of the court, the matter was properly resolved, um, when applied to the case of the applicant, the case is not, the judgment is not final. If, if I know correctly the referral request is pending before the Grand Chamber panel, so it may be that the case goes before the Grand Chamber, but this in practice is, is rather rare to, to be honest, in Strasbourg. There are very few Grand Chamber cases a year before before the Strasbourg Court.
[00:32:52] Alan Renwick: I could keep on asking questions for a lot longer, I'm learning so much here, this is really fascinating stuff. But we are running out of time. Just one final question. You have now moved from the European Court of Human Rights to the, um, Court of Justice of the European Union or the European Court of Justice, as it's often called, um, how, how, how do they compare? What, what's it like to move from, from one institution to a different institution in this way?
[00:33:18] Marko Bošnjak: It's a different court. It's true. While the European Court of Human Rights is primarily an international court specialised in human rights, the European Court of Justice is a sort of a supreme court of the legal system of the European Union. However, again, there is this European perspective of bringing several traditions together understanding cases in, in a harmonised way between European legal experts and I find this very fascinating and I'm enjoying it much. It's very rewarding.
[00:33:52] Alan Renwick: Fantastic. Well, maybe once you've been doing that for a, a bit longer, or maybe once you've stepped down from that role, we'll have you back and you'll be able to talk further about that role as well.
But thank you so much, Marko, it's been really great to talk with you about these matters today. As I said, I've learned a huge amount. I hope our listeners have always also felt that that is useful primer for understanding the background to some, um, issues that are debated very hotly in politics in, in the UK particularly, but to some extent elsewhere at the moment.
We have been discussing the work of the European Court of Human Rights with Marko Bošnjak, former judge on and president of that court. Now judge on the Court of Justice of the European Union and honorary professor here at UCL.
Next week, we are looking at a different approach to upholding democratic freedoms, exploring the idea of what's known as the political constitution, an important concept in certainly UK constitutional and political theory.
To make sure you don't miss out on that or other future episodes of UCL Uncovering Politics, all you need to do is subscribe. You can do so on Apple, Google Podcasts or whatever podcast provider you use. And while you're there we'd love it if you could take a moment of time to rate or review us too.
I'm Alan Renwick. This episode was produced by Eleanor Kingwell-Banham. Our theme music is written and performed by John Mann.
This has been UCL Uncovering Politics. Thank you for listening.