Thematic Workshop: The ECtHR and the Rights of Minorities and Other Marginalised Groups

Minorities and disenfranchised or marginalised social groups that have struggled to achieve their aims through the ordinary political process have turned to the ECtHR to challenge policies they perceive as discriminatory or to require the state to take action to protect their interests. In its earlier case law, and for some groups, the ECtHR seemed sensitive to the concerns of minorities and demonstrated an eagerness to protect them from majoritarian disfavour within their domestic legal order, for instance, by calling for the decriminalisation of homosexuality, by requiring states to recognise the affirmed gender of trans people, by protecting minority languages, by challenging the segregation of Roma school children, and by (initially) challenging blanket bans on prisoner voting. Other groups were arguably less successful before the Court (namely, religious minorities primarily in cases relating to religious dress). Additionally, the ECtHR’s recent case law and its ‘procedural turn’ has been characterised by further deference to the decisions of domestic courts/legislatures and a general reluctance to interfere with majoritarian democratic decision-making within the respondent state (recent examples include cases relating to the rights of sex workers, or the rights of intersex people). In many state parties to the Convention system, Convention rights are under challenge particularly when they are perceived as supporting the rights of unpopular minorities. Finally, there is evidence that the Court is watering down the protections some groups have enjoyed (for instance, in relation to prisoner voting rights).

With these developments in mind, the workshop seeks to explore the following themes:

-How have specific minority and other marginalised groups fared before the Court? What is the trajectory of the protections they have received since the ‘new’ court was established and are there any noticeable shifts in recent years?

-How has the Court’s ‘procedural turn’ in the ‘age of subsidiarity’ affected the interests of minority/marginalised groups?

-Has the Court’s approach sometimes favoured the assimilation of minority groups (for instance, by recognising ‘living together’ as a legitimate aim in cases relating to religious dress)?

-How successful have various techniques (e.g., relying on vulnerability reasoning in Roma rights cases or in claims brought by asylum seekers) been to protect the interests of marginalised groups?

-Has the Court meaningfully considered intersectionality in its reasoning?

-Has the Court struck the right balance between protecting the legitimacy of its judgments vis-à-vis states, while recognising and protecting the rights of minorities?

-Ultimately, is the Court a reliable forum for groups that face majoritarian bias to achieve recognition and protection for their interests?