Critical issues within, and arising out of, the ECtHR’s coercive human rights doctrine

This paper presents some of the central findings emerging out of the authors’ forthcoming edited volume 'Towards a Coercive Human Rights Law? Positive Duties to Mobilise the Criminal Law under the ECHR'. The presentation will cover:
– some of the key theoretical starting points and wider context as discussed in the book (e.g. criminal law theory and the anti-impunity agenda in human rights law);
– specific angles on the development of coercive duties in human rights law (e.g. transitional justice);
– specific rights (e.g. the right not to be subjected to torture and the right not to be subjected to slavery, servitude or forced labour).
The paper will identify the different strands in the authors’ normative stances on the risks and opportunities raised by coercive human rights law, with a view to informing further debates on future case law developments. Finally, the paper will identify remaining gaps in the literature in order to encourage further research in this area.

Coercive human rights beyond the criminal law

Much of the recent discussion around coercive human rights has tended to focus on the way in which protective duties result in a sharpening of the criminal law or a greater push for criminalisation. This equation between coercion and the criminal law is too narrow, however, and loses sight of a significant and pernicious territory in which coercive overreach is at risk. This paper considers how protective human rights obligations also potentially result in the civil law liability of criminal justice agencies, a factor which in turn reshapes the way in which these agencies operate. These duties place considerable pressure on policing institutions to act pre-emptively to avoid human rights breaches, or even civil liability. The shift then is towards a more risk averse criminal justice system which views itself as bound by human rights to act preventively. In this territory, where inscrutable claims of future risks are at stake, the risk of coercive overreach is high.

Vulnerability-based coercive obligations as an impetus for more victim-oriented perspectives

The European Court of Human Rights relies on the concept of vulnerability to provide special protection to certain persons and groups under various provisions of the European Convention on Human Rights, including the prohibition of torture and inhuman and degrading treatment in its Article 3. This presentation will interrogate the premise that vulnerability-based reasoning not only provokes a shift in perspective when it comes to coercive obligations, emphasizing the rights of victims, but that it creates a certain minimum content of protection that must be provided under domestic law. It will explore the Court’s use of vulnerability in formulating coercive obligations, along with whether the result of this process can be considered synonymous with a victim-oriented perspective, and evaluate how this affects States’ discretion with respect to the decision to enact and apply domestic criminal-law provisions in particular contexts.

Sowing a 'culture of conviction': what shall domestic criminal justice systems reap from coercive human rights?

This paper assesses the potential implications of the ECtHR’s positive duties to mobilise the criminal law on domestic criminal justice systems. It shows that the Court tends to present criminal accountability as indispensable to protect human rights. This approach may foster a ‘culture of conviction’ at the domestic level whereby punishment is seen as the end to pursue whatever the cost. While the jurisprudence currently refers to the duty to punish as an obligation of means, increased concern with the efficiency of the criminal system in preventing crime is leading the Court to consider whether adequate punishment has been imposed. Such uncritical invocation of conviction and punishment might in practice encourage limitations to due process rights, harsher punishments and wider powers of arrest and detention. Conversely, criminal justice reform initiatives, directed at reducing unnecessary criminalisation and implementing alternatives to prison, are totally neglected.