Mr. dr. Paulien de Morree

Universitair docent
Staatsrecht, Bestuursrecht en Rechtstheorie

The prohibition of abuse of rights in Article 17 ECHR

At the Institute for Jurisprudence, Constitutional and Administrative Law, I am working on a PhD thesis on the prohibition of abuse of rights in Article 17 of the European Convention on Human Rights (ECHR).

Article 17 ECHR, also referred to as the abuse clause, prohibits abuse of the fundamental rights and freedoms guaranteed in the Convention. The provision was included in the Convention in order to prevent groups and individuals whose aims run counter to democracy or the democratic values inherently protected under the ECHR from succesfully invoking the fundamental rights and freedoms it guarantees.

The abuse clause in Article 17 ECHR embodies one of the main principles of the Convention. At the same time, it is also one of the Convention’s most controversial provisions. The provision is phrased in rather ambiguous terms and it is unclear what exactly it aims to defend. In addition, there unmistakably exists an tension between human rights protection and the abuse clause. While human rights essentially aim to promote freedom by affirming the basic rights citizens enjoy vis-à-vis state authorities, the abuse clause aims to protect democracy and democratic values against groups and individuals invoking these rights with the aim of undermining the democratic organisation of the state.

The question when the use of a fundamental right turns into abuse is therefore an extremely complicated one, both for academics and for courts required to adjudicate on it. The uncertainties surrounding the provision have contributed to an obscure and inconsistent body of Strasbourg case law on this issue. For that reason there is a great need for further clarification of the prohibition of abuse of rights in Article 17 ECHR. In my PhD thesis I therefore aim to shed light on the background and the difficulties of the provision and contribute to the development of a more coherent interpretation.

This PhD research is supervised by Professor Henk Kummeling and Professor Remco Nehmelman.