Article 53 echr and Minimum Protection by the European Court of Human Rights

What is it about?

It is often emphasised that the European Convention of Human Rights offers only minimum protection to fundamental rights such as the freedom of expression or the right to non-discrimination. The States are allowed to offer additional guarantees in their national constitutions or laws. Indeed, Article 53 ECHR obliges the ECtHR to respect such national guarantees if they go beyond the Convention. This provision can be read as meaning that the European Court of Human Rights should always respect more protective national laws. In such a reading, Article 53 could both add to and detract from the protection offered by the Convention, especially in cases where national and Convention rights clash. Based on an analysis of the Court’s case-law, however, this paper shows that the Court does not rely on Article 53 in such conflicting rights cases, but prefers to use avoidance and balancing strategies. Instead, it uses Article 53 to reinforce national fundamental rights protection, thus reducing the risk of harming the minimum level provided by the Convention.

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