THE BATTLE FOR THE ESSENCE OF ARTICLE 9: A STUDY OF THIRD- PARTY INTERVENTIONS IN SELECTED CASES

Abstract

Vast body of literature on the jurisprudence of the European Court of Human Rights and its
transformations focuses on the role of member-states and the Court itself. This paper will
contribute to a less explored area focusing on the role of third-party interventions in Article 9 cases
within a narrow scope of judgments in Key Cases and in front of the Grand Chamber. I argue that
third parties communicating their interest through third party interventions shape the reasoning of
the Court and influence the outcome of its decisions. However, like other recent authors in this
paper, I challenge the assumption that third-party participation leads to the Court finding a
violation. The paper will more specifically analyze: 1) the actors (who intervenes); 2) their
arguments (towards what); and 3) what arguments the Court take seriously (what works). The
analysis will not be conducted in isolation rather than through the prism of the specificities of the
Courts’ Article 9 jurisprudence; especially the use of the substantive margin of appreciation and
the principle of subsidiarity, leading to the preliminary assumption that the Court has a more
difficult task finding a violation due to self-imposed restraints. Consequently, an additional
emphasis will be placed on locating the inter-play between the Courts’ own principles and
doctrines and the operationalization of third-party arguments towards the outcome of the
judgments.