Before the Courts

In recent years and since the establishment of the permanent European Court of Human Rights, there has been an unprecedented expansion of the Court’s case law. This development, sharply affected by the reinforcement of the right to individual application and the enlargement of the Council of Europe to Eastern Europe, has led to a drastically increased influence of the Court’s case law. In parallel, there has also been an increase of the Court’s case law on religion, and a rapid judicialisation of (and, some would argue, judicial activism in relation to) religion.

All of the above has also generated increased interaction between the ECtHR case law and the national courts and jurisprudence. National courts of all instances refer more and more to the European Convention on Human Rights articles as well as to the Court’s case law. Thus the role of the Court within the contracting states to the Convention is enhanced.

This component of the research studies, both quantitatively and qualitatively, the extent, nature and relative ‘weight’ of the references to ECtHR religious freedoms case law in the national high courts of the four case study countries. It thus also examines in what way the ECtHR religion case law is transferred to the national level. The initial quantitative study of the references to the Court is supplemented by interviews with judges and lawyers making the references to the ECtHR; by an analysis of the submissions to the Court by the lawyers representing the plaintiffs, aiming to understand how the parties build their narrative in relation to the ECtHR case law; and by a study of the extent to and ways in which the references to the ECtHR within the national high court’s case law are made known at the grassroots level (e.g., publication of information about the case on organisations’ websites) and used by the grassroots level.

In addition to the above, our focus on the litigation process in this aspect of our research includes an in-depth study of legal mobilization leading to and in the aftermath of particular ECtHR cases selected by the researchers in each case study: respectively, Vallianatos v. Greece; Costa and Pavan v. Italy, Sindicatul “Păstorul cel Bun” v. Romania, and Feti Demirtaş v. Turkey.