An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before the European Court of Human Rights
| Author | Laura Van den Eynde |
| Published date | 01 September 2013 |
| Date | 01 September 2013 |
| DOI | http://doi.org/10.1177/016934411303100304 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 31/3, 271–313, 2013.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 271
AN EMPIRICAL LOOK AT THE AMICUS
CURIAE PRACTICE OF HUMAN
RIGHTS NGOs BEFORE THE EUROPEAN
COURT OF HUMAN RIGHTS
L V E*
Abstract
is article explores the practice of third-party interventions by human rights non-
governmental organisations (NGOs) before the European Court of Human Rights
(ECtHR). Although permitted for over two decades, this practice has not been
exhaustively documented. e approach adopted in this research has been to carefully
review the Court’s database and to col lect the amicus curiae briefs themselves, ranging
from 1986 to 2013. is approach enables an accurate depiction of the amicus curiae
activity before the Court in ter ms of gures. Fir st, this research con rms the numeric al
increase of amicus participation . A little more than 140 human rights NGOs have been
identi ed as third-party intervenersbefore the Court: in addition to th e traditional UK-
based charities and large transn ational human rights organisations, the Court is more
and more confronted with the presence of small er and more specialized groups, as well
as, recently, conservative groups. Finally, the results challenge the assumption that the
presence of human rights NGOs acting a s amici increases the likelihood that the Court
nds a violation.
Keywords: Amicus curiae; Article 36 (2) ECHR; Civil Society; European Court of
Human Rights; NGOs; ird-Party Intervention
* Research Fellow (F.N.R.S.) at the Université libre de Bruxelles. is a rticle is part of a dis sertation
written at Sta nford Law School for the requi rements of the Master in t he Science of the Law (J. S.M.).
I am thank ful to Franç oise Tulkens, Debora h Hensler, Lawrence Friedm an, Moria Paz, Ser gio Stone,
the Registr ar of the European Cou rt of Human Right s, many NGOs who helped me gathe r the data
and the Belgi an American Educ ational Foundation for h aving supported me wh ile in Stanford. A ny
mistakes a re mine. Do not hesitate to contact me w ith corrections or sug gestions.
Laura Van den Eynde
272 Intersentia
1. INTRODUCTION
Although non-governmental orga nisations (NGOs), along with States and i ndividuals,
began to submit amicus curiae briefs1 to the European Court two decades ago and
contribute in many ways to the work of the Court, little is known about t his practice.
In general, in Europe, little attention has been paid to civil society initiatives when
it comes to legal mobilization,2 reinforced in this case by the lack of empirical data
readily available to scholars.
e EuropeanConvention on Human Rights of 1950 ‘was the rst international
human rights instrument to aspire to protect a broad range of civil and political
rights both by taking the form of a treaty legally binding on its High Contracting
Parties and by establishing a system of supervision over the implementation of the
right s at the domes tic level ’.3 It created the European Court of Human Rig hts, located
in Strasbourg, which monitors State compliance with the Convention. Today, its
jurisdiction extends over 47 member States and more than 800 million people. e
signi cance of the Court and its case law in Europe and beyond is undeniable.4 e
Court stated itself that ‘Although the primary purpose of the Convention system is
to provide individual relief, its mission is also to determine issues on public-policy
grounds in the common interest, t hereby raising the general stand ards of protection of
human rights and extend ing human rights jurisprudence throug hout the community
of Convention States’.5 us, it is not surprising that interest groups such as NGOs
became wil ling to get involved in the Court proceedi ngs.
is exploratory research focuses on mapping the interventions of human rights
NGOs before the Court. e interest for the topic lies in the fact that despite their
essential role, no empirica l work has examined the phenomenon so far;6 that articles
focusing on third-party interventions seem to always cite the same ‘famous’ or well-
documented third-party interventions; and that an increasing trend of par ticipation
1 Henceforth, amicus cur iae briefs will be re ferred to as ‘amicus br iefs’ or ‘briefs’ and lers of amicus
briefs will b e referred to as ‘amici’.
2 Frances Zemans de nes legal mobilization a s ‘the translation of a […] want into a demand fr amed
as an asser tion of rights’; F Zemans, ‘ e Neglecte d Role of the Law in the Political Sy stem’ (1983)
77 e American Polit ical Science Review 69 0, 700.
3 D Gomien, Short Gu ide to the European Co nvention on Human Rights (Council of Europe Publ ishing
2000) 12.
4 S Greer, e Marg in of Appreciation: Interpre tation and Discretion un der the European Convention
on Human Rights (Counci l of Europe Publishing 2 000) 190.
5 Karner v Aus tria App no 40016/98 (ECtHR, 24July 2 003), para.26.
6 See for the most adva nced attempt: L Hodson, NGOs an d the Struggle for Human Rig hts in Europe
(Hart Publis hing 2011). Cichowski has a lso created her own datase t but only up to 1998 as regards
third par ty interventions; R Cichowski , ‘Civil Society and the Eu ropean Court of Human Ri ghts’
in J Christo ersen and M Madsen (eds), e European Court of Human Right s between Law and
Politics (OUP 2012) 77.
An Empirica l Look at the Amicus Cur iae Practice of Human R ights
NGOs before the Europ ean Court of Human R ights
Netherlands Qu arterly of Human Ri ghts, Vol. 31/3 (2013) 273
is taking place, as can be illustrated by the case of Lautsi v Italy.7 e aim of this
research was thus rst to establish a database as complete as possible and then to
identify and ana lyse some of the trends. is s hould give a more acc urate ide a of what
is occurring and hopefully provide a corpus for future research (for example studies
that concentrate on impact measu rement).
Written comments can be submitted before the ECtHR by ‘any State or
person concerned not party to the proceedings’.8 However, this research focuses
on interventions by one of the largest and most proli c type of intervener – non-
governmental organisations dedicated to the promotion and protection of human
rights9 – with the aim of illustrating their growing presence at this supranational
level.10
e nex t section sets the theoretical framework characterizing the topic, looking
at the evolving de nition of the amicus curiae device and at the roles scholars have
attributed to it. It then looks at the Court’s position towards it and outlines the
applicable procedure. A brief point wi ll explain, from a methodologic al point of view,
how the database was constr ucted. e last sect ion analyses the results, depicting t he
practice of amicus curiae before the Court in terms of numbers. More speci cally, it
looks at the concerned organis ations and the cases in which amici appear.
2. THE AMICUS CURIAE: ORIGIN, ROLES AND
PROCEDURE
2.1. THE AMICUS CUR IAE: DEFINITION AND ROLES
A traditional tra nslation of amicus curiae is ‘a frie nd of the cour t’. e term is applied
‘to a bystander, who without having an interest in the cause, of his own knowledge
7 Lautsi v Italy App no 30814/06 (ECtHR, 18March 2011). A er a Chamber unani mously ruled that
the compulsor y display of a religious sy mbol in classrooms re stricted the rig ht of parents to educate
their child ren in conformity with t heir convictions, and the ri ght of children to believe or not to
believe, it was refe rred to the Grand Cha mber. It received an unprecedented nu mber of third-part y
interventions: ten St ates (with two having issue d statements of support), ten NGOs and a group of
members of the Europea n Parliament provided briefs. Two groups were not granted t he right to
intervene and on ly the States were allowed to ta ke part in the public he arings.
8 Article36(2) of the Europe an Convention of Human R ights. ere are t hree main clas ses of persons
whose intervent ion is welcomed by the Cour t: States, the Huma n Rights Comm issioner and persons
with an intere st in the case. Under the last, t here are individuals other t han the applicant with a
clear interest in t he domestic proceed ings to which an applic ation before the ECtHR re lates; entities,
groups or individu als with relevant specialist legal exper tise or factual knowledge (l ike NGOs,
national groups , experts), a few industr y interest groups, but als o international organ isations.
9 As is explained b elow this is understood in broad ter ms. Any kind of non-pro t association w ill be
included, e.g. law scho ol clinics and resea rch centres.
10 J Mertus, ‘From Legal Transplants to Transformative Justice: Human Rights a nd the Promise of
Transnational Civ il Society,’ (1999) 14 American University Inter national Law Review 1335.
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