This chapter explains why the norm against torture and inhuman and degrading treatment dramatically expanded in the period after 1998. Relying on the theoretical framework, it assesses the conditions that made the Court audacious enough to effectuate these resource-intensive positive obligations. First, as a full-time court with compulsory jurisdiction, the new Court came to enjoy a wide discretionary space. This attribute conferred it with judicial courage to issue audacious rulings across the board and recognize a range of important positive obligations under Article 3. Second, there was a growing need for positive obligations in European societies, especially in the aftermath of the Eastward enlargement. Positive obligations were necessary for both the Western and Eastern European countries alike. They served a supplementary role for the protection of rights in Western Europe and played a crucial role in inducting Eastern Europe into a rule of law tradition. Last but not least, creating positive obligations was less likely to raise eyebrows because they were already established in the jurisprudence of other courts and were actively promoted by civil society groups.

The conclusion identifies the key turning points in the Court’s jurisprudence in light of the established theoretical framework and presents several key findings that further the debate on judicial politics and on the backlash. The main takeaway is that international courts may not always attempt to expand their power. On the contrary, concern for institutional survival or public image may compel them to under-utilize their power. Courts will follow forbearing or selectively forbearing policies to prevent or mitigate political pushback or backlash. They will reserve audacity or selective audacity for moments when they feel safe from political repercussions. Drawing upon my analysis of the Court over five decades, I call for historicizing the current instances of backlash against international courts and liberal institutions. At least in the context of the European Court, an important lesson is that the backlash is not unique to today’s political climate. The Court has seen different episodes of backlash and, as a result, it has forged a resilience strategy to fend off or pre-empt backlash. Such strategies can also be traced in other courts and institutions with delegated authority.

Under what conditions can we expect international courts to be progressive? The introduction begins with a discussion of why it is compelling to answer this question by looking at the case of the European Court of Human Rights – a court that is not unambiguously progressive. It then lays out the theoretical and empirical foundations of the book, presenting the key concepts of forbearance and audacity – strategies that courts employ to adjust their sovereignty costs while maintaining a good institutional reputation. The theoretical framework explains why the Court needs to oscillate between forbearance and audacity, and how this oscillation has shaped the norm against torture and inhuman or degrading treatment. The empirical analysis, in its turn, combines social science methods and legal analysis to reveal the extent to which the Court has resorted to forbearance and audacity when interpreting the norm against torture and inhuman or degrading treatment, and how such episodes influenced the norm’s developmental trajectory. The introduction concludes by explaining the determinants of forbearance and audacity and putting forth the book’s key contributions to the existing debates.

This chapter discusses the current trends at the reformed Court against the backdrop of recent reform initiatives, as well as the general atmosphere of widespread negative feedback and backlash since the 2010s. To do so, it relies on the results of the content analysis carried out on the case law between 1967 and 2016, a close reading of some of the recent landmark judgments, and the insights gathered from elite interviews conducted with current and former judges. This assessment shows the extent to which the reformed Court resorts to selective forbearance. I find that the reformed Court, challenged by widespread negative feedback, selectively pays heed to member states’ concerns. That is, it continues a progressive line of reasoning when it comes to certain core obligations, such as the obligation to refrain from using excessive force while policing or the provision of legal protection and remedy. Yet, it adopts a more forbearing attitude towards certain other obligations, such as the obligation to uphold the non-refoulement principle, the provision of sufficient medical care in detention centers, or the provision of acceptable detention conditions to (irregular) migrants or asylum seekers.

In this chapter, I explore how the new Court, immediately after its creation in 1998, enforced increasingly lower thresholds of severity to find a violation under the prohibition of torture and introduced several key positive obligations. I provide a detailed assessment of how, with a few audacious rulings, the new Court reversed the compromises made by the old Court, especially regarding the member states’ national security concerns. Different from the old Court, the new Court could act audaciously across the board. The most visible implication of this was the fact that the new Court accepted almost all the novel claims brought before it—even those concerning resource-intensive positive obligations and the violations perpetrated by private actors. As epitomes of sudden change, these positive obligations assumed a taken-for-granted status not long after their initial acknowledgment. Having described the achievements of the new Court, I also discuss the areas where progress was slower. In particular, I take a look at the Court’s treatment of claims arising from systemic racist policies.

In this chapter, I introduce the methodological choices adopted in this book and present the results of the content analysis carried out on all Article 3 decisions issued between 1967 and 2016. Instead of studying norms as unitary phenomena, I disaggregate them to do this analysis. I focus on each and every obligation that a norm contains and trace the norm’s transformation by taking these separate obligations as a reference. The chapter demonstrates the distinct obligations that the norm against torture and inhuman or degrading treatment entailed during the period under study. It then explains why looking at these obligations separately helps us better understand the pace and the magnitude of change. The chapter also introduces some preliminary analysis probing the dominant tendencies of the European Court’s different incarnations, which range from audacity, selective audacity, selective forbearance, and forbearance. This chapter thus presents a bird’s-eye-view analysis, providing an overview before turning to more in-depth analyses of different change episodes in the following chapters.

This chapter provides an overview of how the modern understanding of the norm against torture and inhuman and degrading treatment came to be and discusses its subsequent gradual transformation. Taking the Convention drafters’ stated intentions as a baseline, it traces the development of the norm through several landmark judgments. Relying on legal analysis, I note that the bounds of the norm against torture and inhuman or degrading treatment were initially limited in order to appease member states during the time of the old Court. Although the old Court had progressive instincts, it could not always act on them. It could expand the norm only when it was safe to do so – when the stakes were low and there was an emerging consensus around an issue. Such constraints influenced the way the norm against torture and inhuman or degrading treatment developed in the early days of the European human rights regime. However, despite such hesitations, the old Court made a colossal contribution to the norm’s evolution, planting the seeds of progress by introducing the living instrument principle in Tyrer v. the United Kingdom.

This chapter is composed of two connected parts. The first part looks at the European Court of Human Rights’ inner workings and the way it functions. Expanding this assessment beyond elected judges, the chapter argues that the Court defines its organizational priorities as a collective body. This collective body includes not only the judges elected for limited terms but also law clerks and other legal professionals at the Registry, most of whom are hired on a permanent basis. This essentially implies that all members of the judicial elite working at the Court contribute to defining the Court’s collective purpose and determining if there is a need for tactical balancing – thus shaping the tendency for forbearance or audacity. The second part offers a historical overview of the Court’s institutional transformation. Created in 1959, the European Court once operated as a part-time institution. The Court then became a full-time institution in 1998; its structure was further refined during the reform processes that officially began with the first High-Level Conference on the Future of the Court in 2010 in Interlaken, Switzerland.