Local authorities at the European Court of Human Rights

ABSTRACT

The high-level Reykjavík Declaration (2023) recognises the importance of local authorities (the lowest tier of administration within a state) for the functioning of the European Convention on Human Rights (ECHR) system. This article seeks to provide a better understanding of the human rights role of local authorities and the potential of the European Court of Human Rights (ECtHR) as a promoter of this role. It examines how local authorities appear in the judgments of the ECtHR and assesses the extent to which they provide clear pictures of local authorities and their role in human rights issues. The analysis draws on a close reading of a sample of cases encompassing a diverse set of states and human rights issues. It shows how the ECtHR’s reasoning indicates what is required of a local authority for a specific set of circumstances, but also the general attributes of local authorities that are conducive to the provision of human rights. For judgments of the ECtHR to promote local authorities as human rights actors, local authorities and their interlocutors need to be able to identify the judgments and the elements of reasoning therein that are of most relevance for their circumstances.

KEYWORDS:

• Local authorities
• ECHR
• ECtHR
• margin of appreciation
• negative obligations
• positive obligations

1. Introduction

Human rights cities, such as Utrecht, Nuremburg, and York are local authorities that place human rights at the centre of their governance programmes and cooperate through international networks to enable realisation of their objectives.¹ Human rights cities strive to offer more than the minimum requirements of international human rights law. This can mean that they are more ambitious than the central governments of their respective states.² The emergence of human rights cities helps to explain the growing body of scholarship on the role of local authorities as human rights actors.³

The term local authority denotes the lowest tier of administration within a state.⁴ The European Charter of Local Self-Government identifies elected councils or assemblies as the holders of the right to manage a substantial share of public affairs.⁵ These organs are likely to be assisted by executive organs, such as a mayor elected by the council or by a paid staff headed by a chief executive.⁶ Public service agencies may also be delegated tasks.⁷ Still, the details of the organs that are covered by the term local authority and the exact content and scope of their functions varies from state to state.⁸

Typical areas of governance responsibility for local authorities include housing, education, social security, health, and law and order.⁹ These areas activate a wide range of human rights-based international legal obligations, both negative (state must refrain from actions which interfere with the right) and positive (state must take action to fulfil the right) in form. How are local authorities performing on human rights?

Recent studies of the content and drivers of the human rights role of local authorities reveal variation in the powers, capacity, and motivation of local authorities to realise rights both within and across states.¹⁰ Yet the general picture is that local authorities often lack sufficient knowledge and resources to adequately fulfil the minimum requirements for their role in the protection and realisation of rights.¹¹ Human rights cities are more the exception than the rule.¹² How might the human rights role of local authorities be strengthened?

One suggestion is that international supervisory mechanisms for human rights may be able to facilitate the human rights role of local authorities.¹³ This suggestion is both attractive and challenging.

Local authorities can often be the sites for human rights violations, generating cases that rise to the international level. International supervisory mechanisms for human rights are thus in a position where they can examine the practice of local authorities on human rights. Their reasoning can indicate both desirable and problematic practices, providing a resource pool for local authorities in similar positions. The supervisory mechanism may also place normative value on certain practices, signalling that they should be pursued to secure compliance with the minimum requirements of international human rights law. However, it is the central government that leads the case at the international level, and which receives and has responsibility for implementation of international outputs.¹⁴ This may lead to decisions and judgments that do little to distinguish in their reasoning between the contribution of the central state relative to the local authority, or which shed little light on the particularities of the local authority’s involvement. The potential for international mechanisms to provide resources for learning about and motivating the human rights role of local authorities may not be fully realised.

This article seeks to provide a better understanding of the human rights role of local authorities and the potential of one supervisory mechanism, the European Court of Human Rights (ECtHR), as a promoter of this role. To this end, it examines how local authorities appear in the judgments of the ECtHR and assesses the extent to which judgments provide clear pictures of local authorities and their role in relation to human rights issues. Questions addressed in the analysis include: How does the ECtHR address particularities in the types of organs, sources of authority, and powers and functions of local authorities? To what extent does the ECtHR distinguish local authority actions and omissions from those of a higher state level? Which components of local level human rights practice does the ECtHR value in its reasoning? What information does the ECtHR receive on the circumstances and practices of local authorities and how is this used?

The ECtHR has the most case law of all the international supervisory mechanisms for human rights. Focusing on the ECtHR ensures access to the variety of human rights issues involving local authorities.¹⁵ The ECtHR is also one organ within the Council of Europe, which also has an organ specifically focused on local and regional authorities, the Congress of Local and Regional Authorities. This organ has 306 representatives (and 306 substitutes), representing the local and regional authorities of the 46 member states of the Council of Europe. Its focus is on strengthening local and regional democracy and assessing implementation of the European Charter of Local Self-Government. The Congress has human rights as one of its focus themes. This has involved the publication of several reports and the collection of data and good practice examples.¹⁶ The heads of states and governments of the Council of Europe also used the recent Reykjavík Declaration (2023) to call on the Congress to strengthen its political dialogue with national interlocutors on the implementation of the ECtHR’s judgments.¹⁷ Relations between the Congress and the ECtHR are underexplored, but there may be potential, given that they are both organs of the Council of Europe, for the Congress to help the ECtHR to be informed and attentive to the types of human rights issues that local authorities encounter.¹⁸

The focus cases for the analysis in this article are chosen from the list of illustrative local authority-based ECtHR cases provided on the website of the Congress of Local and Regional Authorities. Several categories of cases are in focus: social welfare,¹⁹ environment and security,²⁰ eviction and social housing,²¹ and freedoms of expression, association, assembly, and movement.²² The close reading of the selected focus cases provides an indication of how the ECtHR addresses local authorities across a diverse set of states and human rights issues.²³ The analysis contributes insights on the nature of the human rights role of local authorities and the prospects of the ECtHR as a promoter of this role. It also provides an analytical framework that can be used for further study of the practice of the ECtHR and other international supervisory mechanisms.

The article proceeds as follows. Section 2 situates the study of local authorities within the broader context of research on the functioning of the European Convention on Human Rights (ECHR) system. Section 3 examines the concept of local authority as it appears from the case law of the ECtHR. Section 4 addresses how the case law of the ECtHR engages with points of connection between local authorities and other levels of state governance. Section 5 considers how local authorities appear in the ECtHR’s reasoning on the margin of appreciation, and the application of negative and positive obligations. Section 6 identifies and examines the information that the ECtHR receives on the actions of local authorities.

The central argument of the article is that the value of ECtHR judgments for the promotion of local authorities as human rights actors is connected to how local authorities are presented. The value will increase to the extent that it is possible for local authorities (and actors within states that inform them about ECtHR judgments) to identify the judgments and the elements of reasoning therein that are of relevance for their circumstances. The analysis shows that, across cases, there is considerable variation in the clarity, detail, and normativity of the presentation of the local authorities. This is understandable considering factors such as the specificities of individual cases and the limits to the information available to the Court. Still, opportunities exist for the ECtHR to enhance its judgments as sources of identifiable, relevant, and persuasive human rights guidance for local authorities.

2. Local authorities in the ECHR system

It is the central government that binds their state to international human rights treaties, including the ECHR. However, these treaties generate rights-based obligations for all branches and levels of the state, including local authorities.²⁴

A significant amount of knowledge on the operation of the ECHR system (all the organs of member states and Council of Europe organs that operationalise the ECHR) is now available. This includes, theoretical perspectives, asking how should key analytical concepts, such as subsidiarity, legitimacy, and effectiveness be understood?²⁵ Doctrinal perspectives, focusing on the details of how the ECtHR has undertaken its judicial function, deploying and developing key conceptual tools, such as the margin of appreciation, evolutive interpretation, and proportionality analysis.²⁶ And implementation perspectives, addressing how national authorities respond to and make use of the outputs of the ECtHR.²⁷

A notable feature of the literature on the operation of the ECHR system is the relative lack of attention to local authorities.²⁸ This is understandable from the perspective of public international law, which gives the central government the competence to bind the state and its people.²⁹ Governments have created a system in which they are the key point of connection between the national and the international level.³⁰ It is the central government that represents the state before the ECtHR. The central government also liaises with the Department for Execution of Judgments and the Committee of Ministers (the body which monitors and decides on compliance at the Council of Europe) to determine an action plan for execution of an adverse judgment.³¹

More recently, national organs, especially courts and parliaments, have been studied as key actors within the ECHR system. The ECtHR does not generally consider that the Convention requires it to involve itself in the internal constitutional arrangements of states.³² Rather, courts and parliaments are examined as key parts of the domestic compliance communities that help to ensure compliance with the judgments of the ECtHR.³³ Studies also show how the reasoning of the ECtHR relates to the practice of national organs. Through the interpretation of rights, the ECtHR helps to specify the respective roles of courts, parliaments, and executives in the realisation of rights.³⁴ The reasoning of the ECtHR also places value on the quality of domestic processes on rights-based issues. Better quality judicial, parliamentary, and executive processes may lead the ECtHR to grant the state more margin of appreciation and make it more likely that an interference with a right will be found to be proportional and thus justifiable under a limitation clause.³⁵ Spano (former Judge and President of the ECtHR), writing extra-judicially, has argued that this practice can incentivise domestic institutions to make use of the ECtHR’s human rights tools.³⁶ This article proceeds on the premise that the ECtHR’s judgments may have similar relevance for local authorities.

The importance of local authorities for the functioning of the ECHR system is noted in the recent high-level Reykjavík Declaration (2023). Produced by the heads of state and government of the member states of the Council of Europe, Appendix IV of the Declaration on ‘Recommitting to the Convention System as the cornerstone of the Council of Europe’s protection of human rights’, includes local authorities in the list of organs that ‘bear responsibility for implementing the Convention and complying with the judgments of the Court’;³⁷ and invites national organs to strengthen cooperation with both regional and local authorities to ‘facilitate the process of executing the judgments which concern them’.³⁸ In contrast, earlier high-level declarations, such as those from meetings in Brussels and Copenhagen, do not note the role of local authorities.³⁹ The inclusion of references to local authorities in the Reykjavík Declaration is consistent with the growing recognition of the importance of local authorities as human rights actors.

The UN Human Rights Council Advisory Committee, in its report on a global survey of the role of local governments in the promotion and protection of human rights, has highlighted that, as ‘the level closest to the citizens, local government is, in principle, in a much better position than central government to deal with matters that require local knowledge and regulation on the basis of local needs and priorities’.⁴⁰ However, the Committee also highlighted many challenges that often hinder realisation of rights at the local level including ‘a lack of political will’, ‘shortage in institutional capacity and/or resources’, ‘lack of adequate coordination between central and local governments’, and ‘the lack of information about the requirements resulting from human rights at the local level’.⁴¹

Case studies of how specific local authorities perform on rights-based issues add nuance to the general picture. They show how and why the rights performance of local authorities can vary considerably within states. For example, local authorities in Belgium have been shown to develop policies on use of the ‘burkini’ in swimming pools with varying levels of attention to rights. Individual officials’ own awareness and understanding of human rights norms is found to be central to the approach taken.⁴² Moreover, local authorities in Turkey have been shown to vary in their approaches to the provision of rights for refugees, some are proactive while others offer very little. This is attributed to factors including variation in access to finances, data, and national and international networks through which norms on treatment of refugees by local authorities are transmitted.⁴³

Generally, more needs to be done to understand and strengthen local authorities as human rights actors. This point is undergirded by the range of cases with local level origins that continue to be taken up by the ECtHR.⁴⁴ These cases require the ECtHR to identify and assess the human rights practices of local authorities from many different states and across various issue areas. In so doing, the ECtHR can guide and motivate the human rights practice of local authorities. However, the general relevance of the ECtHR’s reasoning is less easily assumed for local authorities than it is regarding national parliaments and courts. This is because of the greater variety in the nature, responsibilities, and circumstances of local authorities both within and across the states of the Council of Europe. As such, the relevance of a judgment may be connected to the extent to which it is possible to readily identify the key features of the target local authority and its role in the case. It with these thoughts in mind that the rest of this article examines how local authorities appear in the case law of the ECtHR.

3. The concept of local authority at the ECtHR

To illustrate some of the key features of the local authorities that generate ECtHR case law, this section draws on examples from the selected focus cases.⁴⁵ Particular attention is given to the information that is provided in the judgments on the local authority actors, the sources of authority, and the functions undertaken. How clear is the image of the local authority that emerges?

A. Local authority actors

Across the case law, local authority actors are identified with varying levels of specificity. Consider J.D and A v. United Kingdom, an Article 14 and Article 1 Protocol No 1 case concerning decisions on discretionary housing payments. Such payments were to allow applicants to continue living in their accommodation after new legislation which linked payment of benefits to the number of bedrooms; if there are more bedrooms than the claimant is entitled to, this leads to a reduction in the housing benefit payment.⁴⁶ In this case, the local authority actor that was responsible for the decisions on discretionary housing payments is referred to throughout by the ECtHR as the ‘local authority’.

In contrast, in Garib v. the Netherlands, the ECtHR distinguishes different local authority actors. This is an Article 2 Protocol No. 4, freedom of movement case concerning refusal of a housing permit to allow the applicant live in a particular area of Rotterdam. In this case, reference is made at the general level to the ‘municipality of Rotterdam’, but reference is also made to the local council that introduced the relevant by-law, and to the Burgomaster and Aldermen that took the decision not to apply the hardship clause for the applicant.⁴⁷ Reference is also to be found to actions of the ‘the presidents of a number of South Rotterdam boroughs (deelgemeenten), social housing bodies and educational institutions’.⁴⁸

B. Sources of authority

The ECtHR may also on occasion specify the basis for the authority of the local authority actor. Consider another Article 2 Protocol No. 4 case against the Netherlands, Olivieira v. The Netherlands. This case concerned a prohibition order, passed in the interests of public order, preventing the applicant from entering certain areas of the city of Amsterdam. The ECtHR clarified that:

In the Netherlands, the Burgomaster of a town or city is appointed by the Queen (section 65 of the former Municipality Act). Municipal regulations, such as general municipal by-laws, are adopted by the Municipal Council (section 168 of the former Municipality Act) which is elected by those inhabitants of the town or city who are eligible to vote in elections for the Lower House of Parliament (Article 129 of the Constitution).⁴⁹

Similar categories of local authority actors are found in case law from other states, but the source of authority is often not noted. Consider Hudorovič and Others v. Slovenia, an Article 8 case concerning the sufficiency of steps taken by two municipalities to provide Roma settlements with drinking water and sanitation. In this case, both the municipalities and the mayors of the municipalities are reported as taking steps to secure public utilities for the settlements, including entering into agreements with the applicants.⁵⁰ Yet neither the source of the mayor’s or the municipality’s authority are clarified.⁵¹

Similarly, in Yordanova and Others v. Bulgaria, an Article 8 case concerning the order for the eviction of a group of Roma people who had made an area of land in the Sofia municipality into their home, the sources of authority for the key local level actors – the municipal council of Sofia, the mayor of Sofia, and the mayor of the relevant district in Sofia – are not specified.

C. Local authority functions

The terminology used to describe the functions that local authorities undertake may vary from state to state.⁵² The case law examined can be ordered according to two main categories: policy setting and policy implementation. Functions that come within these categories can be undertaken by various types of local authority actors, including councils, mayors, and specialised organs.

Consider the case of Moreno Gómez v. Spain. This case concerned a complaint of violation of Article 8, right to respect for the home, due to excessive noise from nightclubs. The main local authority actor in focus, the Valencia City Council,⁵³ had, in response to complaints from residents,⁵⁴ passed a by-law on noise and vibrations. This regulated external noise levels in residential areas, requiring that they respect certain limits.⁵⁵ The by-law also allowed for designation of certain residential areas as an ‘acoustically saturated zone’. Such a designation entailed a prohibition on new noise generating activities, such as nightclubs.⁵⁶ The applicant’s area was designated in a resolution from the City Council sitting in plenary as an ‘acoustically saturated zone’.⁵⁷ Yet a new licence for a nightclub in the building where the applicant lived was granted by the City Council. The applicant’s complaint concerned the Council not complying with its own regulations both through granting the licence and then not enforcing the limits on noise generation.⁵⁸ This set of circumstances shows the potential for close links between policy setting and policy implementation at the local council level.⁵⁹

Consider also Olivieira v. The Netherlands. This case concerned a prohibition order, passed in the interests of public order, preventing the applicant from entering certain areas of the city of Amsterdam. The main local authority actor in focus was the Burgomaster. The Burgomaster acting under the Municipality Act had given the police the authority to issue individual orders, acting on the Burgomaster’s behalf, preventing someone from entering areas of the city, in the interests of public order, for a period of 8 h, or 14 days.⁶⁰ The police had requested the Burgomaster to issue such an order in relation to the applicant.⁶¹ The Burgomaster issued the order, which was then appealed to an advisory committee. The Burgomaster adopted the committee’s decision as its own and dismissed the appeal.⁶² In this case, then, the Burgomaster takes both general and individual oriented decisions, in close cooperation with other more specialised local authority organs.

One example of a case with a focus on specialised local authority action is K. and T. v. Finland. This case concerned decisions to take the applicants’ children into foster care. The main local authority actor was the municipal social welfare board.⁶³ The judgment details how the welfare board, as follows from the Social Welfare Act, includes members elected by the municipality and is responsible for providing social welfare in its area.⁶⁴ Decision making of the board can be delegated to subordinate officials.⁶⁵ The judgment refers to how decisions in the applicant’s case were taken by the Social Welfare Board,⁶⁶ as well as by ‘a social welfare official’,⁶⁷ and the Social Director acting on behalf of the board.⁶⁸ This demonstrates how human rights relevant decision making within a specialised area, such as child welfare, can occur at different levels, from governing boards to the individuals delivering services.

In sum, the case law illustrates the multifaceted nature of the concept of local authority that the ECtHR encounters. There are different types of local authority actors, with different sources of authority, pursuing different types of functions. At the same time, different actors and functions can overlap. A close reading of the cases is often required to understand which actors and function(s) have contributed to the rights-based issue. Still, certain judgments are more accessible and informative on the nature of the local authorities involved than others. The specificities of the cases examined help to explain the variation in the precision and detail in the presentation of the target local authorities. For example, in the cases of Garib and Olivieira, the nature of the rights-based issues concerning freedom of movement that had arisen necessitated distinguishing the contributions of the various local actors involved. In contrast, in the case of J.D and A, all involved with the case will have understood that the term ‘local authority’ targeted the actors with responsibility for the discretionary housing payments. To the extent that it is possible for the ECtHR to generally provide fuller descriptions of the local authorities it encounters, this can facilitate recognition of the broader relevance of its judgments. It can enable other local authority actors and their interlocutors to identify and assess the relevance of a case for their own circumstances – to what extent is it a case concerning a similar type of actor with similar function(s)?

4. Links between local authorities and higher levels of state governance

The Council of Europe’s European Charter on Local Self-Government requires respect for the autonomy of local authorities in the exercise of public affairs under their responsibility.⁶⁹ The Charter also requires that ‘[a]ny administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles’.⁷⁰ The general nature of the provisions in the Charter reflect that the scope and content of the competences granted to local authorities varies across states.⁷¹ In addition, within states, local authorities are accorded more freedom in certain areas and functions can be shared across governance levels.⁷²

This section identifies and examines how variation in the links local authorities have to other levels of governance are addressed in the case law of the ECtHR. The case law can be ordered according to two general categories. One category concerns action taken under local authority-based legal frameworks developed in the context of a higher-state level legal framework. The other category concerns local authority actions undertaken within the context of a higher-state level framework.

A. Local authority-based legal framework in the context of a higher-state level legal framework

Case law involving local authorities can involve several layers of actions and legal frameworks. Consider, Winterstein and Others v. France, an Article 8 case concerning the eviction of a group of travellers from land on which they had been settled for a long time. The ECtHR identified the legal basis for the municipality of Herblay to initiate court proceedings seeking eviction of the applicants from the land. This was found in the national level Town and Country Planning Code and the land-use plan for the municipality of Herblay.⁷³ The background for the municipality’s eviction order were orders by the mayor of the municipality ‘prohibiting the encampment of travellers’ mobile homes throughout the municipality’.⁷⁴ The orders were pursuant to section 9 of the national level Besson acts, concerning halting and housing of travellers. The orders were possible due to the municipality of Herblay being exempted by the département of Val d’Oise’s from its 2004–2010 travellers’ accommodation programme.⁷⁵

In setting out the relevant ECHR law in Winterstein, the ECtHR flagged the need for special consideration to be given to the needs of the applicants, given the vulnerable position of gypsies and travellers as a minority, in both the regulatory planning framework and in reaching decisions in particular cases.⁷⁶ This was found to be the case for applicants that had opted for social housing, as their situations were encompassed in an urban and social study initiated by the département of Val d’Oise. It was not found for the applicants that opted for relocation.⁷⁷ This was because the municipality had subsequently (in contrast to what the government had argued in the case) abandoned plans to relocate them to the intended plots. The municipality had instead allocated those areas to the nomadic travellers that it had been given responsibility for under the département of Val d’Oise’s programme.⁷⁸ The ECtHR also stressed the importance of a proportionality assessment underpinning decision making on how to deal with unlawful settlements and, if removal is necessary, in relation to the manner of its conduct.⁷⁹ This was not found to have been satisfied for any of the applicants.⁸⁰ The ECtHR’s assessment brings out the interconnected nature of the regulatory frameworks and practice at the three governance levels: national, département, and municipality.⁸¹ However, the ECtHR does not directly address the formal and factual relations of authority between the different levels. This leaves a haze around the issue of how responsibility for the violation of the rights is allocated across the governance levels.⁸²

In other cases, the relations between the levels of governance have been addressed more directly. Consider again, Garib. The applicant had moved out of their house in a borough in Rotterdam for it to be renovated. The applicant applied for a permit to be able to move to a nearby house. This was refused, as the borough was now, to reverse its socio-economic decline, subject to restrictions on who could move in. These measures applied to the applicant as she was unemployed and had not been in the area over 6 years.⁸³ An application to the Burgormaster and Aldermen to be considered for a special hardship exception was also rejected.⁸⁴ The applicant’s complaint targeted the regulatory framework, which included both the national level Inner City Problems (Special Measures) Act and the 2003 Housing By-law of the municipality of Rotterdam.⁸⁵ The ECtHR’s analysis highlighted how the housing permits scheme for the borough, which the municipality had opted to include within its by-law, was only possible under the national act if the Minister of Housing, Spatial Planning and the Environment was satisfied that it was necessary and proportionate to combat inner city problems in the municipality and that sufficient alternative housing within the region was available.⁸⁶ It was also noted that permission for the permit scheme would be revoked by the Minister if alternatives were no longer available.⁸⁷ These details bring into focus how responsibility for the circumstances affecting the applicant was shared between the central state and the municipal level.

The facts of Hudorovič and Others v. Slovenia provide a further example of how a local level framework can be linked with a national level framework. In this case, relevant laws for the focus issues – water supply and sanitation to Roma settlements – are found in national decrees, which are further specified by municipalities through ordinances.⁸⁸ Further, additional legislation on spatial planning gives the municipalities the power to adopt municipal spatial plans, including ‘to determine the types of public utility infrastructure to be built in individual areas’.⁸⁹ Spatial development and planning is an area where the municipal level is independent in managing local affairs in the public interest under the Local Self-Government Act.⁹⁰ This underpinned the state’s argument that it had no way of coercing local authorities to act to create spatial plans that would allow Roma settlements to benefit from spatial development.⁹¹ The ECtHR’s assessment takes account of the multi-level nature of the relevant legal framework in Slovenia.⁹² The ECtHR specifies that it is reasonable for either the state or its local authorities to assume responsibility for the delivery of the relevant services.⁹³ This reflects that local authorities are obligated to fulfil the state’s human rights obligations regardless of how independent they are from the central state in terms of domestic law. High levels of local authority autonomy may complicate implementation of a judgment, but this was not an issue in this case as the ECtHR found that the municipality had done enough to fulfil the state’s positive obligations.

B. Local level actions in the context of a higher-state level legal framework

The level of discretion given to local authorities in the delivery of specific functions in the context of a higher-level state framework can also vary.

Consider again, Olivieira v. The Netherlands. The prohibition order preventing the applicant from entering a particular area of the city of Amsterdam had its legal basis in a general instruction given to the Chief Superintendent of the Amsterdam police by the City’s Burgomaster. This instruction was based on section 219 of the Municipality Act, which ‘conferred upon the Burgomaster a discretion to issue the orders which he deemed necessary in order to quell or prevent serious disturbances of public order’.⁹⁴ The original instruction had been in place since 1983, while the specific orders made against the applicant were issued in the 1990s.⁹⁵ The applicant challenged the sufficiency of the legal basis for the order, arguing that the instruction had not been published and that it was in effect a regulation that lacked democratic legitimacy and should have been passed by the City Council.⁹⁶ The ECtHR deferred to judgments from the national courts to support its finding that section 219 of the Municipality Act constituted ‘a sufficient legal basis for restrictions on freedom of movement of the kind here at issue’.⁹⁷ The national courts, including the Supreme Court, had accepted the Municipality Act as a sufficient legal basis. Still, the Administrative Jurisdiction Division in its judgment had advised that in the interests of legal certainty and legitimacy it would be preferable for prohibition orders to be ‘provided for in a by-law enacted by the Local Council’.⁹⁸ The three dissenting judges at the ECtHR also criticised the adequacy of the legal basis for the order, finding that the restriction should rather be seen as based on delegated legislation which did not satisfy the ‘accordance with law’ requirements of accessibility and foreseeability.⁹⁹ The case serves as an example of broad discretion being afforded to a local authority executive organ in the context of a national level legislative framework. The ECtHR did not address the scope for the central state to constrain the way in which the discretion was exercised.

In J.D and A v. the UK, limits on the discretion afforded to the local authority through national legislation were more in focus. In this case, the local authority had discretion to make extra housing benefit payments to individuals adversely affected by new regulations linking payment of housing benefits to the number of bedrooms an applicant was entitled to. The two applicants had complained that the scheme was discriminatory, as it had a disproportionate impact on them. The first applicant was disabled and living in specially adapted accommodation. The second applicant was housed as part of the Sanctuary Scheme, helping those at risk of domestic violence to remain in their own homes. For the second applicant, the ECtHR found that there was a clear conflict between the aim of the new housing benefit scheme and the Sanctuary Scheme, which made it unreasonable to treat the applicant in the same way as any other recipient of housing benefit.¹⁰⁰ For the first applicant, the ECtHR did not identify such a fundamental conflict between the position of disabled persons and the aims of the legislation. To further support its finding of no violation, the ECtHR looked at the nature of the scheme for discretionary payments, highlighting that although the scope for the local authority to make a payment was ‘purely discretionary’, there were certain safeguards. In particular, the ECtHR highlighted that the local authority was required ‘to take their decisions in light of the Human Rights Act and their Public Sector Equality Duty which in the Court’s understanding would prevent them from refusing to award DHP where that could mean the applicant’s need for appropriately adapted accommodation was not met’.¹⁰¹ Further elements of constraint that were identified in the judgment included that the Secretary of State issued local authorities with a manual and best practice guide for decisions on discretionary housing payments.¹⁰² Moreover, it was reported that the Secretary of State had intervened with the local authority on behalf of the second applicant and that the decision had been reversed in light of an ‘error in processing’ – ‘the fact that the applicant’s home had been specially adapted was not taken into account when the decision to refuse DHP was made’.¹⁰³

The powers given to local authority actors through national legal frameworks may also be more tightly constrained and, in some instances, linked to the consent of other actors. Consider Strand Lobben and Others v. Norway. This Article 8 case concerned the decision to take away parental responsibility and authorise adoption of child X without consent of the parents, due to the mother’s health issues. The decision making process on adoption of child X was initiated under the Child Welfare Act by the municipal child welfare services. The decision was passed by the County Social Welfare Board (a decentralised organ of the central state). The ECtHR’s assessment focused on the review undertaken by the City Court, acting as an appeal instance from the County Social Welfare Board. The ECtHR found a violation of Article 8 as all views and interests of the applicants were not duly taken into account;¹⁰⁴ ‘the domestic authorities did not attempt to perform a genuine balancing exercise between the interests of the child and his biological family’.¹⁰⁵ This finding encompassed all stages in the process leading to the City Court’s decision, including actions that could have been ordered by the municipal child welfare services alone or at the instigation of other bodies, such as alternative arrangements for contact sessions between the mother and child,¹⁰⁶ and expert reports on the impact of contact sessions.¹⁰⁷ One outcome of this case has been that Norway's Supreme Court has provided new statements of principle on the Child Welfare Act, in which they emphasize the importance of the authorities also taking sufficient account of the family's interest in matters of children being taken into care. The Supreme Court also emphasizes that there is a need for better documentation of choices that are made; and regarding the extent and frequency of contact, that this must be determined after specific assessments in the individual case.¹⁰⁸ For such change in principle to lead to change in practice requires that they are communicated to the municipal child welfare services around the country and given meaning in the context of their work.¹⁰⁹

Overall, the case law shows that the actions and frameworks of local authority actors are to varying degrees interwoven with and constrained by those of other levels of governance within the state. This applies whether local authority actions are rooted in a local-level framework or only a higher-level state framework. It follows that the ECtHR encounters variety in the extent to which the local authority alone will be responsible for a claimed violation of the ECHR.¹¹⁰ To the extent that the ECtHR engages with the levels of discretion and autonomy afforded to the local authority relative to other levels of governance, the ECtHR creates a foundation for choices about where to place the focus of its substantive assessment of the rights-based issue – to what extent is it the local-based action or omission that is the root of the issue? Such analysis by the ECtHR also brings into focus a realistic picture of what will be required for implementation of the judgment. It alerts the relevant actors at the domestic level to the nature of their contribution to a rights violation and the corresponding need for their involvement in the provision of a remedy. In addition, details on the sharing of authority across governance levels allows other local authorities to assess the relevance of the case for their own circumstances.

5. Local authorities in the ECtHR’s reasoning on the margin of appreciation, negative obligations, and positive obligations

The ECtHR has discretion as to the factors that it will consider when deciding a case.¹¹¹ The factors considered in the ECtHR’s reasoning can indicate desirable local authority engagement with rights-based issues. They provide a resource pool for local authorities in similar positions, giving indications as to how similar issues can be addressed. Moreover, whenever the ECtHR places normative weight on a particular local authority action or approach, it potentially incentivises similar practice elsewhere. This may be because other local authorities are convinced that it is an appropriate practice. It could also be due to the interest local authorities have in not generating ECHR cases and especially cases that lead to a finding of violation at the ECtHR.¹¹² This section addresses how the ECtHR addresses the role of local authorities in its reasoning on the margin of appreciation and the application of both negative and positive obligations.

A. Margin of appreciation

The ECtHR has a subsidiary role in the supervisory mechanism of the ECHR. The member states have the primary responsibility for securing the rights and freedoms found in the ECHR. The subsidiary role of the Court undergirds its doctrine of the margin of appreciation: ‘the measure of discretion allowed the member states in the manner in which they implement the Convention’s standards, taking into account their own particular national circumstances and conditions’.¹¹³ The margin’s width varies from case to case, depending on the interaction of a host of first-order and second-order reasons.¹¹⁴ The determination of the margin of appreciation in a particular case determines the strength with which the state’s activity is scrutinised in a particular instance.¹¹⁵ The Court can give more or less detail in its explanation of the factors that inform the level of the margin in a particular case. In terms of connecting the reasoning on the margin of appreciation to the involvement of the local authority, there are several aspects to the Court’s approach that are of interest.

Often the ECtHR will begin its explanation for the margin of appreciation through reference to the general subject matter of the case. In the cases examined, these statements do not make explicit reference to the local authority. For example, in Hudorovič and Others, the ECtHR specifies that ‘[i]n socio-economic matters such as housing the margin of appreciation available to the State is necessarily a wide one … in issues involving an assessment of the priorities in the context of the allocation of limited State resources, the national authorities are in a better position to carry out this assessment than an international court’. ¹¹⁶ This statement may be read as implicitly including the local authority as part of the broader concept of the ‘State’.

The relevance of local authorities for the margin of appreciation may be made clearer in cases where the ECtHR expands on its margin of appreciation in the light of the circumstances of the case. An example is found in Mouvement Raëlien Suisse v. Switzerland. This Article 10 freedom of expression case concerns the banning of a poster campaign in one local authority in Switzerland. The interference stemmed from action taken by the police, based on a regulation passed by the elected council, and the subsequent endorsement of that action by the elected council. The ECtHR was faced with argumentation that the interference should not be accepted as necessary, as other local authorities had permitted the same posters. In explaining the margin of appreciation, the ECtHR pointed out that ‘certain local authorities may have plausible reasons for choosing not to impose restrictions in such matters … [t]he Court cannot interfere with the choices of the national and local authorities, which are closer to the realities of their country, for it would thereby lose sight of the subsidiary nature of the Convention system’.¹¹⁷ The ECtHR thus makes it clear that the knowledge local authorities have of the contexts within which they operate is part of the reason for the margin afforded the state.

In other cases, the ECtHR also highlights knowledge of the local context as a reason for the margin of appreciation, but without direct reference to the local authority. For example, in Garib v. the Netherlands, concerning allocation of housing permits to allow residence in a particular area of Rotterdam, the ECtHR highlights how in ‘an area as complex and difficult as that of the development of large cities, the State enjoys a wide margin of appreciation in order to implement their town-planning policy’.¹¹⁸ For this issue, the knowledge that local authorities have of the local context could be expected to make an important contribution, but this is not made explicit. Subsequently, going further into the circumstances of the case, the ECtHR refers to how the evaluation of alternative accommodation for those denied housing permits for a specific area of the city generates a wide margin of appreciation, as it requires weighing the needs of the person concerned with the interests of the local community. In this respect, the involvement of the local authority in the requisite assessment is important. Still, at this point in its reasoning, the ECtHR refers explicitly only to the ‘national authorities’.¹¹⁹

A similar pattern is discernible in cases where knowledge of the circumstances of the individuals involved in a case is linked to the margin of appreciation. Consider cases concerned with child protection. In both Strand Lobben and Others v. Norway and K. and T. v. Finland, the Court includes in its explanation for the margin of appreciation a reference to how ‘the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation’.¹²⁰ For both cases, referring only to ‘national authorities’ obscures from view that the direct contact with the persons concerned occurred at the local authority level.

In sum, the extent and precision with which the ECtHR links the involvement of local authorities to the margin of appreciation afforded to the state varies across cases. Certain factors that are used to explain the margin of appreciation, such as knowledge of local circumstances or direct contact with individuals involved in a case, are often a product of local authority involvement. Yet, the significance of local authorities for the margin of appreciation is often not made explicit. This obscures the contribution of local authority actors to the reasons the ECtHR gives for the margin of appreciation. By seeking to be clearer in its presentation of the contribution of local authorities to the margin of appreciation, the ECtHR can make it easier for the value it often implicitly places in local authorities as human rights actors to be discovered.

B. Negative obligations

The provisions of the ECHR are interpreted by the ECtHR to generate both negative and positive obligations for states parties. Negative obligations require states to refrain from interference with a right. Interference with certain rights can be justified under certain circumstances based on a limitation clause. Examples of limitation clauses are found in Articles 8–11 ECHR: right to respect for private and family life; freedom of thought, conscience and religion; freedom of expression; and freedom of assembly and association. The determination of the justifiability of a limitation requires the court to assess, in the light of the case as a whole, ‘whether the “interference” complained of corresponded to a “pressing social need”, whether it was “proportionate to the legitimate aim pursued”, [and] whether the reasons given by the national authorities to justify it are “relevant and sufficient”’.¹²¹ In practice, the main focus of the assessment will often take the form of a balancing exercise, in which it is possible for the ECtHR to take account of various elements surrounding the circumstances of the case. Reviewing the case law brings into focus several features of the human rights role of local authorities that the ECtHR places weight on across different types of cases.

One general feature of the human rights role of local authorities that the ECtHR often examines relates to the knowledge local authorities have of specific situations and the basis this gives for well-reasoned decision making. Consider again, K. and T. v. Finland. In this case, the court required ‘extraordinarily compelling reasons before a [new born] baby can be physically removed from the care of its mother, against her will’. Such reasons were not provided in this case, in part because the local authority ‘had known about the forthcoming birth for months in advance and were well aware of K.’s mental problems, so that the situation was not an emergency in the sense of being unforeseen’.¹²² This knowledge meant that there should have been an effort at the local authority level to examine alternative, less intrusive measures prior to the birth, but no evidence of this was provided.¹²³

Another focus point in local authority-based cases concerns communication with the affected parties. In K. and T. v. Finland, the ECtHR recognised the importance of involving those with custody of children in decision making on taking them into care, but that certain circumstances can justify proceeding without such involvement.¹²⁴ Also, in Winterstein, the ECtHR placed weight on the engagement with certain of the applicants in the processes surrounding decisions on resettlement following eviction.¹²⁵ In Olivieira, in explaining why the prohibition order preventing the applicant from entering certain areas of the city of Amsterdam did not violate Article 2 Protocol 4, the ECtHR placed weight on the information that the applicant had been given on the nature of the prohibition that would follow should the applicant continue to return to the area to use hard drugs.¹²⁶

A further ECtHR focus point in local authority-based cases relates to the importance the ECtHR places on decision making that interferes with qualified rights being based on a proportionality assessment. Consider Yordanova and Others v. Bulgaria. In evaluating, from the perspective of Article 8, the order for removal of a group of Roma people from an area of municipal land, the ECtHR accepted that public order concerns represented a legitimate aim, but found that the eviction would not be considered ‘neccesary in a democratic society’ as under national legislation ‘the municipal authorities were not required to have regard to the various interests involved or consider proportionality … [and] the municipal authorities did not give reasons other than to state that the applicants occupied land unlawfully and, in the judicial review proceedings, the domestic courts expressly refused to hear arguments about proportionality and the lengthy period during which the applicants and their families had lived undisturbed in Batalova Vodenitsa’.¹²⁷ Consider also J.D. and A v. The United Kingdom. The Court, found, when assessing the general scheme for payment of housing benefits for consistency with Article 14 and Article 1 Protocol No 1, that it was to the state’s favour that decisions on discretionary housing payments were to be made by the local authority as this allowed for ‘individualised decisions, which the Court has identified as an important element to ensure proportionality’.¹²⁸

The cases examined show that certain considerations often appear in the ECtHR’s reasoning on whether interference with rights is justified in cases involving local authorities. These include steps taken by local authorities to generate knowledge of the specific circumstances of a case; to allow for input from those affected by decision making; and to enable individualised decision making based upon a proportionality assessment. The reoccurrence of these considerations across a diverse body of case law supports the idea that they are part of a general concept of the human rights role of local authorities.¹²⁹

Still, the extent to which these considerations are directly associated with local authorities can vary. For instance, in Winterstein, a case with similar facts to Yordanova, the ECtHR focused on the importance of domestic courts assessing the proportionality of a decision on eviction.¹³⁰ This downplays the requirement for initial decisions taken by the municipality to also attend to matters of proportionality. It is also noticeable that in Garib, the ECtHR gave extensive attention to the process surrounding the creation of the relevant national legislation but did not attend to the local process surrounding the relevant local authority by-law.¹³¹ As such, the judgment overlooks the importance of rights considerations informing the production of local level regulatory frameworks. The ECtHR can strengthen its reasoning as both a source of relevant rights-based practices and as an incentive for local authorities to act on rights-based issues, by seeking to present and evaluate a holistic account of the contribution made by a local authority on the issues brought before it.

C. Positive obligations

Positive obligations require that state action be taken to ensure a right. Various analytical categories have been used to try and help make sense of the variety of ways in which positive obligations appear in the case law of the ECtHR. General categories of positive obligations include those requiring an adequate legal framework, as well as those which require ad hoc measures.¹³² Positive obligations can be specified in more or less concrete terms.¹³³ Broad obligations are often specified in ways that require the ECtHR to assess whether the measures taken have been reasonable, sufficient, effective and adequate in light of the circumstances of the case.¹³⁴ The application of such positive obligations will often proceed through a fair balance assessment, in which the definition of a proper level of protection and assessment of a state’s responsibility are assessed in one.¹³⁵ The ECtHR has discretion in terms of the elements it considers when specifying the norm and assessing compliance.

Positive obligations are specified through reference to the responsibility of the state. Still, consider again Hudorovič and Others v. Slovenia. The ECtHR was open to the possibility that: ‘A persistent and long-standing lack of access to safe drinking water can … have adverse consequences for health and human dignity, effectively eroding the core of private life and the enjoyment of a home within the meaning of Article 8. Therefore, when these stringent conditions are fulfilled, the Court is unable to exclude the possibility that a convincing allegation may trigger the State’s positive obligations under that provision’.¹³⁶ In elaborating this positive obligation, the ECtHR noted that ‘the key consideration in its assessment concerns the scope of the State’s positive obligation to provide access to utilities, especially to a socially disadvantaged group’.¹³⁷ And that ‘[t]he Court considers it reasonable that the State, or its local authorities, assume responsibility for the provision of this service’.¹³⁸ The explicit reference to local authorities in the specification of the positive obligation in this case may be linked to the submission from the state party that in the context of its legal system,¹³⁹ it was not in a position to coerce local authorities with regard to spatial development plans.¹⁴⁰ The ECtHR also focused its finding of non-violation on the sufficiency of the steps taken at the local level. This included measures taken to enable the applicants to access drinking water, with the ECtHR concluding that ‘the positive steps taken by the respective municipalities allow for the conclusion that they acknowledged the disadvantages suffered by the applicants as members of a vulnerable community and showed a degree of active engagement with their specific needs’.¹⁴¹

Moreno Gómez v. Spain also concerned a positive obligation. The ECtHR found that the rights’ of the applicant under Article 8 were found to be breached due to the volume of noise that the applicants were exposed to for several years through the operation of private nightclubs in the area where they lived.¹⁴² The ECtHR specified that the state had the obligation to take action to put a stop to these breaches.¹⁴³ It also concluded that ‘the respondent State has failed to discharge its positive obligation to guarantee the applicant’s right to respect for her home and her private life, in breach of Article 8 of the Convention’.¹⁴⁴ Still, the focus of the ECtHR’s assessment was on the steps that had been taken by the Valencia City Council. In particular, the introduction of noise regulations by the Council was not sufficient, as they were not followed or enforced.¹⁴⁵

The noted cases demonstrate how in specifying and applying positive obligations, the ECtHR helps to indicate the type of actions that local authorities must take to comply with their positive obligations. They also show that there is scope for variation in how directly the ECtHR will specify positive obligations as relevant for local authorities. By referring directly to the local authority in the specification of the positive obligation in Hudorovič, the ECtHR alerts the local authorities to their role, and helps to reduce the scope for the obligations to be perceived as a concern only for the central state.

6. The ECtHR’s sources of information

The central government of a state leads its case at the ECtHR. This may affect the amount and quality of information that is available to the Court on the local authority’s contribution to the rights-based issue. This section examines the sources and nature of information that is looked at in cases involving local authorities.

A. The applicant and the government

The applicant and the respondent government are major sources of information for the ECtHR. It follows that the statements and actions of the local authority will be presented in the form of reports. For instance, in Winterstein, while arguing that attempts had been made to offer housing corresponding to the applicants’ needs, the government reported how the mayor of the relevant municipality had proposed to join other municipalities in the creation of encampment spaces.¹⁴⁶ Consider also that in K. and T., the applicant and the government disagreed about what had been said at the local authority level. The ECtHR reports that ‘the Social Director allegedly told the applicants that any further children born to them would also be placed in public care’. While ‘[a]ccording to the Government, the Social Director only told them, when expressly asked, that it was possible that any further children born would be taken into public care’.¹⁴⁷ Further, in K. and T., the attributes of the local authority actor were a subject of contention between the applicant and government. In challenging the decision making on normal care orders,¹⁴⁸ the applicants argued ‘that a social welfare board is not a court but a political body, lacking the skills and knowledge required to investigate a case objectively and neutrally’. The government’s submission focused on the knowledge and expertise of the social welfare board and the detailed information it used to inform its decision making.¹⁴⁹ The ECtHR, for its part, was satisfied that the decision making satisfied the requirements of Article 8, highlighting that the applicants had been properly involved, but also that they ‘could and did appeal on two court levels against the Social Welfare Board’s decision’.¹⁵⁰

It is not ideal that the local authority is without a direct voice in the context of a judgment which its actions have generated. It risks projecting the local authority as lacking agency on rights issues, potentially amplifying the perception that rights responsibilities are a matter mainly for the central government.¹⁵¹

Moreover, to the extent that aspects of the conduct of the local authority are not covered by the applicant and the government in their submissions, the ECtHR may simply not have access to the information. Consider that in Hudorovič, the applicant argued that the municipalities had deprioritised access to safe drinking water in their settlements. The ECtHR responded that no information was provided that would allow it to assess this point.¹⁵² In the other direction, in Yordanova the ECtHR was not convinced by the government’s argument that the removal of the applicants from the land was the appropriate step to deal with health and safety concerns, as no evidence was presented that the local authorities had studied seriously alternative methods of dealing with these risks.¹⁵³

Yordanova also serves as an example in which the government contradicted its own national policy to support the position taken by the local authorities. The government aligned itself with the position of the municipality that in relation to land development, approaches tailored to the Roma community would discriminate against the majority of the population. Yet as the ECtHR highlighted, the state had ‘national and regional programmes on Roma inclusion, based on the understanding that the applicants are part of an underprivileged community whose problems are specific and must be addressed accordingly’.¹⁵⁴

B. National courts

The judgments of national courts are another source of information on the actions of the local authorities that may be available to the ECtHR. Domestic remedies must be exhausted before the ECtHR will accept a case.¹⁵⁵ These domestic cases may have included the local authority organs as direct respondents. Thus they can be useful sources of information on how the local authority understands the circumstances of the case. The local authority’s position may not align completely with the arguments put forward by the government.

Consider again Moreno Gómez v. Spain, concerning the failure of the Council in Valencia to follow and enforce its own noise regulations. The ECtHR’s judgment includes an account of the earlier court proceedings in which the Council had argued that it ‘should not bear sole responsibility for the noise to which the applicant had allegedly been exposed, as it had very limited means at its disposal to combat it’.¹⁵⁶ This point was not repeated by the Spanish government in its submissions, which focused on the measures that the Council had taken.¹⁵⁷ The ECtHR’s evaluation also did not engage with this point. Thus the Court did not directly signal that in the context of fulfilling its positive obligations, the state must ensure that local authorities have sufficient resources to perform the functions that they have been allocated.

C. Additional sources of information

The ECtHR may also receive information relevant to the case from other sources. For instance, in Hudorovič the ECtHR heard from two third party interveners. The Human Rights Centre of the University of Ghent made submissions based on the outputs of a range of international mechanisms. The European Roma Rights Centre provided access to its research on the topic of access to safe and affordable drinking water and sanitation in Romany settlements across Europe. The Hudorovič judgment is also notable for the range of additional reports that the ECtHR referred to, including, for example, the ‘Report of the Commissioner for Human Rights of the Council of Europe on his visit to Slovenia (20-23 March 2017)’. This enabled the ECtHR to contextualise and provide a relatively detailed account of the actions taken by relevant local authorities.

Additional sources of information can also provide a useful basis for the ECtHR to check the information provided by the respondent government. Consider Winterstein. The government had observed that the municipality would be developing land that would be available for the relocation of the applicants. The ECtHR did not place weight on this observation, as ‘it can be seen from the most recent information at the Court’s disposal that this project has been abandoned by the municipality’.¹⁵⁸

In sum, the ECtHR decides its local authority-based cases without hearing directly from the local authority. This may contribute to the ECtHR not having relevant or up to date information. It may also contribute to judgments that centre the responsibilities of the central government while failing to fully capture the nature of the rights role of local authorities. To offset these concerns, the ECtHR may consider prioritising awareness of and sensitivity to the local authority as a human rights actor in its strategy for how it engages with, reports on, and supplements the information it uses while deciding a case.

7. Conclusion

The ECtHR does not engage directly with local authorities but assesses their practices in the context of cases that are brought against the state. Studying the case law of the ECtHR reveals how the ECtHR can promote the human rights role of local authorities through indicating how rights-based issues should be approached. Still, analysis of the case law of the ECtHR also reveals the breadth and depth of the notion of the human rights role of local authorities. There are different types of local authority actors, dealing with different types of human rights issues, with varying degrees of interwovenness with other levels of the state. Amidst such variety, not all local authority-based cases will be relevant for all local authorities.

For ECtHR judgments to promote local authorities as human rights actors, it is important that local authorities (and actors within states that inform them about ECtHR judgments) can identify the judgments that are of most relevance. This requires that an observing local authority can assess the extent to which the local authority in a case is in a similar position. It also requires that the elements of reasoning that are relevant for the local authority are identifiable.

The analysis of case law in this article has identified various points in the ECtHR’s judgments that can be used to bring the nature of the local authority actor into focus. Particular attention has been given to the type of local authority actor, its source of authority, the specific function(s) undertaken, and scope of its powers in relation to other levels of the state. The cases studied reveal considerable variation in the extent to which these points are examined in local authority-based cases. This variation may be connected to various factors. Certain sets of facts may lead the ECtHR to have more of a focus on the details of the local authority than others. The submissions of the parties may on occasion provide more information on the local authority’s role than others. Still, it may be that in some cases more detail and clarity on the circumstances of the local authority could be readily provided.

The analysis of the ECtHR’s case law has also shown that there are several modalities by which the human rights role of local authorities can be specified and assessed. Particular attention has been given to the ECtHR’s reasoning on the margin of appreciation and the application of negative and positive obligations. Studying these modalities brings the human rights role of local authorities into focus. This is both regarding what is required of a local authority for a specific set of circumstances. For instance, what will constitute the fulfilment of a positive obligation to provide adequate drinking water for Roma settlements. But also, through studying and comparing a diverse body of case law, the contours of a more general concept of the human rights role of local authorities starts to come into focus.

The ECtHR has been shown to value local authorities as human rights actors across cases due to their knowledge of the local context and the specific circumstances of individuals; the opportunities local authorities have to communicate with those affected by decision making; and their capacity for individualised decision making based upon a proportionality assessment. Still, there is variation in the extent to which the ECtHR expressly attributes these factors to the local authority. Especially significant in this respect are the examples of cases in which the ECtHR has expressly allocated the margin of appreciation based on the involvement of the local authority,¹⁵⁹ where it has specified that the local authority is required to underpin its decision making on interference with rights with a proportionality analysis,¹⁶⁰ and where it specifies the details of the local authority’s positive obligations.¹⁶¹ These cases indicate that it is viable for the ECtHR to be explicit about the contribution that the local authority has made to the factors that it places value upon. In so doing, the ECtHR can strengthen its judgments as sources of guidance and motivation for local authorities engaging with human rights issues.

Acknowledgements

Thanks to Andreas Follesdal, Theresa Squatrito, Geir Ulfstein, and the anonymous reviewers for comments on earlier drafts of this article. Thanks also to all the participants for the feedback I received at the ‘Local Authorities in the ECHR System’ workshop in Strasbourg, France (27 May 2022).

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Matthew Saul

Matthew Saul is associate professor of Law at the Norwegian Centre for Human Rights, Faculty of Law, University of Oslo. He publishes on aspects of general international law, international human rights law, and international adjudication. Saul is co-editor of International Law and Dispute Settlement: New Techniques and Problems (2010), International Law and Post-Conflict Reconstruction Policy (2015), and The International Human Rights Judiciary and National Parliaments (2017). His monograph Popular Governance of Post-Conflict Reconstruction: The Role of International Law was published by Cambridge University Press in 2014.

Notes

1 See Martha F. Davis, ‘Finding International Law ‘Close To Home’: The Case of Human Rights Cities’, in Research Handbook on International Law and Cities, ed. Aust and Nijman (Edward Elgar, 2021), 227–39.

2 See Barbara Oomen, ‘Introduction: The Promise and Challenges of Human Rights’, in Global Urban Justice, ed. Oomen, Davis, and Grigolo (CUP, 2016), 1–22; particular attention is given to the role of human rights cities in addressing global problems, such as climate change and migration, see Helmut Aust, ‘Shining Cities on the Hill? The Global City, Climate Change, and International Law’, European Journal of International Law 26 (2015): 255–78; Elif Durmuş, ‘A Typology of Local Governments’ Engagement with Human Rights: Legal Pluralist Contributions to International Law and Human Rights’, Netherlands Quarterly of Human Rights 38 (2020): 30–54, 37.

3 See Axel Marx et al., ‘Localizing Fundamental Rights in the European Union: What is the Role of Local and Regional Authorities, and How to Strengthen It?’, Journal of Human Rights Practice 7 (2015): 246–71; F. Venter, ‘The Challenges of Cultural Diversity for Safe and Sustainable Cites’, in The Globalisation of Urban Governance, ed. Aust and Du Plessis (Routledge, 2019), 151; Elif Durmuş, ‘How Human Rights Cross-Pollinate and Take Root: Local Governments and Refugees in Turkey’, in Myth or Lived Reality: On the (In)Effectiveness of Human Rights, ed. Claire Boost et al. (T.M.C. Asser Press, 2021), 123–57; Janne Nijman et al., eds., Urban Politics of Human Rights (Routledge, 2023).

4 UN Human Rights Council (UNHRC), Role of local government in the promotion and protection of human rights – Final report of the Human Rights Council Advisory Committee (2015, A/HRC/30/49), para. 8.

5 The European Charter of Local Self-Government (1985), Article 3; Chris Himsworth, The European Charter of Local Self-Government: A Treaty for Local Democracy (Edinburgh University Press, 2015), 36.

6 Himsworth, The European Charter, 40.

7 Ibid.

8 Elena Vodyanitskaya, ‘Local Government’, Max Planck Encyclopedia of Comparative Constitutional Law (2016), https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e365; Himsworth, The European Charter, 40.

9 See UN HRC (2015), para. 26; also R.J.M. Drabble and T. Buley, eds., Local Authorities and Human Rights (Blackstone Press, 2004).

10 Elif Durmuş, ‘How Human Rights Cross-Pollinate’; Tess Heirwegh and Cathérine Van de Graaf, ‘The Local Swimming Pool as a Space of Rights Contestation–An Analysis of ‘Burkini’ Policies in Belgian Local Public Swimming Pools’, The Journal of Legal Pluralism and Unofficial Law 51 (2019): 233; A. F. Jacobsen, ‘Expanding Into the Local Level: Selective and Maximalist Models of Human Rights Implementation in Denmark and Sweden’, International Journal of Human Rights 27 (2022): 1–20.

11 UN HRC (2015), para. 32.

12 See, though, Michele Grigolo, The Human Rights City: New York, San Francisco, Barcelona (Routledge, 2019) (studying how human rights cities engage with rights, spotlighting issues such as which rights and the meaning they are given); also, Peris Jones, ‘Economic and Social Rights and the City’, in Oxford Handbook on Economic and Social Rights, ed. Langford and Young (Oxford University Press, 2022).

13 UN HRC (2015), para. 77; Tihomir Sabchev, Sara Miellet and Elif Durmuş, ‘Human Rights Localisation and Individual Agency: From ‘Hobby of the Few’ to the Few Behind the Hobby’, in Myth or Lived Reality, ed. Boost et al., 183–211, 204; Marx et al., ‘Localizing Fundamental Rights’, 265–66; Elif Durmuş, ‘How Human Rights Cross-Pollinate’, 152; Davis, ‘Finding International Law ‘Close to Home’, 233.

14 See UN HRC (2015), para. 18.

15 For an overview of the typical areas of local authority practice for which the ECHR is relevant, see Drabble and Buley, Local Authorities and Human Rights.

16 See generally [https://www.coe.int/en/web/congress/human-rights]; e.g. Congress of Local and Regional Authorities of the Council of Europe (CoE), Human Rights Handbook for Local and Regional Authorities, vol. 1, (2019), [https://rm.coe.int/the-congress-human-rights-handbook-vol-1-en/168098b094].

17 Reykjavík Declaration, CM(2023)57-final, 17 May 2023, Appendix IV, ‘Recommitting to the Convention System as the cornerstone of the Council of Europe’s protection of human rights’, para. 27.

18 See also, Tess Heirwegh, ‘How Human Rights Implementation by Local Authorities Dealing with Traveller Evictions Could Be Improved – Exploring Strategies Through Case Study Analysis in a Belgian Municipality’, International Journal of Human Rights (Published online 2023) p. 16.

19 K. and T. v. Finland, Application no. 25702/94, 12 July 2001; X and Y v. Croatia, Application no. 5193/09, 3 November 2011; Strand Lobben and Others v. Norway, Application no. 37283/13, 10 September 2019.

20 Moreno Gómez v. Spain, Application no. 4143/02, 16 November 2004; Hudorovič and Others v. Slovenia, Applications nos. 24816/14 and 25140/14) 10 March 2020.

21 Yordanova and Others v. Bulgaria, Application no. 25446/06, 24 April 2012; Winterstein and Others v. France, Application no. 27013/07, 17 October 2013; J.D. and A v. the UK, Applications nos. 32949/17 and 34614/17, 24 October 2019.

22 Olivieira v. the Netherlands, Application no. 33129/96; Mouvement Raëlien Suisse v. Switzerland, Application no. 16354/06, 13 July 2012; Garib v. the Netherlands, Application no. 43494/09, 6 November 2017.

23 See [https://www.coe.int/en/web/congress/echr-case-law].

24 See Congress of Local and Regional Authorities of the Council of Europe (CoE), Human Rights Handbook for Local and Regional Authorities, vol. 1, (2019) p. 17.

25 See, e.g. Samantha Besson, ‘Subsidiarity in International Human Rights Law—What is Subsidiary about Human Rights?’, American Journal of Jurisprudence 61 (2016): 69–107; Richard Bellamy, ‘The Democratic Legitimacy of International Human Rights Conventions’, European Journal of International Law 25 (2015): 1019–42; Andreas Follesdal, ‘Much Ado About Nothing? International Judicial Review of Human Rights in Well Functioning Democracies’, in The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, ed. Andreas Follesdal, Johan K. Schaffer and Geir Ulfstein (CUP, 2014), 272–99.

26 See e.g. Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (CUP, 2015); Eirik Bjorge, The Evolutionary Interpretation of Treaties (OUP, 2014); Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (OUP, 2012).

27 See e.g. David Kosař and Jan Petrov, ‘Determinants of Compliance Difficulties among “Good Compliers”: Implementation of International Human Rights Rulings in the Czech Republic’, European Journal of International Law 29 (2018): 397–425; Alice Donald and Philip Leach, Parliaments and the European Court of Human Rights (OUP, 2016); Courtney Hillebrecht, Domestic Politics and International Human Rights Tribunals (CUP, 2014).

28 See, though, Heirwegh, ‘How human rights implementation by local authorities dealing with Traveller evictions could be improved’ (recognising the potential for strengthening the engagement of local authorities with the ECtHR); Reto Walther, ‘Subsidiarity in the ECHR: An Empty Promise for Local Authorities?’ International Journal of Human Rights (Published online 2023) (stressing that local authorities do not have a formal position in the supervisory mechanism of the ECHR which is centred on the central state); see also Judith Wyttenbach, ‘Systemic and Structural Factors Relating to Quality and Equality of Human Rights Implementation in Federal States: A Critical Assessment of the Practice of Human Rights Treaty Bodies’, International Human Rights Law Review 7 (2018): 43–81 (studying how the structural and institutional frameworks of federal states relate to the practice of international supervisory organs, both the contents of their outputs and their implementation; identifying advantages and drawbacks of federalist systems for the realisation of rights, but also reiterating that the federal government remains responsible for implementation of the relevant treaties under international law).

29 See Vienna Convention on the Law of Treaties (1969) Article 7.

30 See Dia Anagnostou, ‘Politics, Courts and Society in the National Implementation and Practice of European Court of Human Rights Case Law’, in The European Court of Human Rights: Implementing Strasbourg’s Judgments on Domestic Policy, ed. Anagnostou (Edinburgh University Press, 2013), 211–31, 211, 217.

31 See Alice Donald and Anne-Katrin Speck, ‘The European Court of Human Rights’ Remedial Practice and Its Impact on the Execution of Judgments’, HRLR 19 (2019): 83, 103–7; Basak Çali and Anne Koch, ‘Foxes Guarding the Foxes? The Peer Review of Human Rights Judgments by the Committee of Ministers of the Council of Europe’, HRLR 14 (2014): 301.

32 See Nicklinson and Lamb v. UK, Appl. Nos. 2478/15 and 1787/15, Decision (Chamber), 23 June 2015, para. 84; also A. Müller, ‘Obligations to “Secure” the Rights of the Convention in an “Effective Political Democracy”: How Should Parliaments and Domestic Courts Interact?’ in The International Human Rights Judiciary and National Parliaments, ed. Saul, Follesdal and Ulfstein (CUP, 2017), 167–97, 169.

33 See K. J. Alter, The New Terrain of International Law (Courts, Politics, Rights) (Princeton University Press, 2014), at 53–54; Anagnostou, ‘Politics, Courts and Society’; Alice Donald, ‘Parliaments as Compliance Partners in the European Convention on Human Rights System’, in The International Human Rights Judiciary, ed. Saul, Follesdal and Ulfstein, 75.

34 See Müller, ‘Obligations to “Secure” the Rights of the Convention’.

35 See Eva Brems, ‘Positive Subsidiarity and its Implications for the Margin of Appreciation Doctrine’, Netherlands Quarterly of Human Rights 37 (2019): 202; also Hinako Takata, ‘Separation of Powers in a Globalized Democratic Society: Theorizing the Human Rights Treaty Organs’ Interactions with Various State Organs’, Global Constitutionalism (Published online 2023), 1–30.

36 Robert Spano, ‘The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law’, Human Rights Law Review 18 (2018): 473, 488; for debates on the technical and meta-functions of the ECtHR, see Kanstantsin Dzehtsiarou, Can the European Court of Human Rights Shape European Public Order? (CUP, 2021), 96–129.

37 Reykjavík Declaration, Appendix IV, para. 7.

38 Reykjavík Declaration, Appendix IV, para. 28.

39 See generally Lize R. Glas, ‘From Interlaken to Copenhagen: What Has Become of the Proposals Aiming to Reform the Functioning of the European Court of Human Rights?’, Human Rights Law Review 20 (2020): 121–51.

40 UN HRC (2015) para. 8; also Koen De Feyter, ‘Sites of Rights Resistance’, in The Local Relevance of Human Rights, ed. De Feyter et al. (CUP, 2011) 11, 24.

41 UN HRC (2015) paras. 31–6.

42 Heirwegh and Van de Graaf, ‘The Local Swimming Pool as a Space of Rights Contestation’, 251–2.

43 Elif Durmuş, ‘How Human Rights Cross-Pollinate’; also Grigolo, Human Rights Cities 178 (stressing the importance of civil society actors as drivers of human rights cities).

44 See [https://www.coe.int/en/web/congress/echr-case-law].

45 See Section 1 above.

46 J.D and A. v. United Kingdom, para. 32.

47 Garib v. the Netherlands, para. 154.

48 Garib v. the Netherlands, para. 75.

49 Olivieira v. The Netherlands, para. 24; see also Himsworth, The European Charter, 41.

50 Hudorovič and Others v. Slovenia, para. 15.

51 See also Himsworth, European Charter, 40–41

52 See Drabble and Buley, Local Authorities and Human Rights, 92.

53 Moreno Gómez v. Spain, para. 10.

54 Moreno Gómez v. Spain. para. 15.

55 Moreno Gómez v. Spain, para. 15.

56 Moreno Gómez v. Spain, para. 16.

57 Moreno Gómez v. Spain, para. 15.

58 Moreno Gómez v. Spain, paras. 48–49.

59 See also Mouvement Raëlien Suisse v. Switzerland, concerning the banning of a poster campaign in one local authority in Switzerland: action was taken by the police based on a regulation passed by the elected council, and the police action was subsequently validated by the elected council.

60 Olivieira v. The Netherlands, para. 10.

61 Olivieira v. The Netherlands, para. 10.

62 Olivieira v. The Netherlands, para. 17.

63 K. and T. v. Finland, para. 125.

64 K. and T. V Finland, para. 118.

65 K. and T. V Finland, para. 119

66 K. and T. V Finland, para. 33.

67 K. and T. V Finland, para. 19

68 K. and T. V Finland, para. 24; appeal proceedings were heard by the County Administrative Court and also the Supreme Administrative Court, para. 43.

69 The European Charter of Local Self-Government, Article 4.4; Himsworth, The European Charter, 43.

70 The European Charter of Local Self-Government, Article 8; on expediency as a relevant consideration justifying supervision of delegated tasks, see The European Charter of Local Self-Government, Article 8.2; Himsworth, The European Charter, 55

71 Himsworth, The European Charter, 19, 43

72 See Himsworth, The European Charter, 39.

73 Winterstein and Others v. France, para. 22, para 72.

74 Winterstein and Others v. France, para. 15, para 43.

75 Winterstein and Others v. France, para. 14.

76 Winterstein and Others v. France, para. 88.

77 Winterstein and Others v. France, para. 89.

78 Winterstein and Others v. France, para. 90

79 Winterstein and Others v. France, para. 88.

80 Winterstein and Others v. France, para. 167

81 See also Catherine Le Bris and Pierre-Edouard Weill, ‘Do Local Authorities Take Human Rights Seriously? Lessons from the French Case’, International Journal of Human Rights (Published online, 2023).

82 See similarly Moreno Gómez v. Spain; and Mouvement Raëlien Suisse v. Switzerland.

83 Garib v. the Netherlands, para. 132

84 Garib v. the Netherlands, paras. 15, 18, 154.

85 Garib v. the Netherlands, para. 103

86 Garib v. the Netherlands, paras. 21, 118

87 Garib v. the Netherlands, para. 118.

88 Hudorovič and Others v. Slovenia, paras. 43–46; 145.

89 Hudorovič and Others v. Slovenia, para. 38.

90 Hudorovič and Others v. Slovenia, para. 37.

91 Hudorovič and Others v. Slovenia, para. 51.

92 Hudorovič and Others v. Slovenia, para. 145.

93 Hudorovič and Others v. Slovenia, para. 146.

94 Olivieira v. The Netherlands, para. 48.

95 Olivieira v. The Netherlands, para. 40.

96 Olivieira v. The Netherlands, paras. 41 -42.

97 Olivieira v. The Netherlands, para. 48.

98 Olivieira v. The Netherlands, para. 19.

99 Olivieira v. The Netherlands, Joint Dissenting Opinion of Judges Gaukur Jörundsson, Türmen and Maruste.

100 J.D. and A v. The United Kingdom, para 194.

101 J.D. and A v. The United Kingdom, para. 102.

102 J.D. and A v. The United Kingdom, para. 36.

103 J.D. and A v. The United Kingdom, para. 14.

104 Strand Lobben and Others v. Norway, para. 225.

105 Strand Lobben and Others v. Norway, para. 220.

106 Strand Lobben and Others v. Norway, para. 221.

107 Strand Lobben and Others v. Norway para. 222.

108 See Status of Execution Report on Strand Lobben and Others v Norway, in which Norway describes changes to legislation, judicial interpretations, and capacity building, available at [https://hudoc.exec.coe.int/eng?i=004-54045].

109 Norway’s report on execution of the judgment refers to numerous capacity building and training initiatives for the personnel working in the Child Welfare Services. See also Norges institusjon for menneskerettigheter (NIM), Kommuner og menneskerettigheter (2021) at 48 (reporting that a survey on human rights knowledge and capacity at the local authority level across Norway revealed that especially the leaders of the child protection services considered that there was a need to prioritise providing information on human rights to the employees of local authorities).

110 See also Adam Ploszka, ‘From Human Rights to Human Wrongs. How Local Government Can Negatively Influence the Situation of an Individual. The Case of Polish LGBT Ideology-free Zones’, The International Journal of Human Rights 27 (2022): 359–79.

111 See Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (Oxford University Press, 2012), 65.

112 On the logics that help to explain the rights-based behaviour of domestic institutions, see Matthew Saul, ‘Shaping Legislative Processes from Strasbourg’, European Journal of International Law 32 (2021): 281–308, 283; on factors that influence domestic implementation of human rights, see Constance Kaempfer, ‘Domestic Mechanisms for the Implementation of International Obligations in the Swiss Cantons’, SRIEL 31 (2021): 541–64, 544.

113 Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, 2002) at 1.

114 See e.g. Legg, The Margin of Appreciation in International Human Rights Law, 17–8; Eva Brems, ‘The Margin of Appreciation Doctrine in the Case Law of the European Court of Human Rights’, Zeitschrift fur Auslandisches offentliches Recht und Volkerrecht 56 (1996): 240, 256.

115 See Julian Rivers, ‘Proportionality and Variable Intensity of Review’, Cambridge Law Journal 65 (2006): 174, 207.

116 Hudorovič and Others, para. 141; also Strand Lobben and Others v. Norway, para. 211

117 Mouvement Raëlien Suisse v. Switzerland, para. 64.

118 Garib v. The Netherlands, para. 139.

119 Garib v. The Netherlands, para. 161; see also Winterstein and Others v. France, para. 72; Yordanova and Others v. Bulgaria, para. 118.

120 Strand Lobben and Others v. Norway, para. 210; and K. and T. v. Finland, para. 154.

121 Sunday Times v. UK, Application No. 6538/74, 26 April 1979, para. 59.

122 K. and T. v. Finland, para. 168.

123 See also X and Y v. Croatia, para. 107; and Hudorovič and Others v. Slovenia, para. 142.

124 K. and T. V Finland, para. 167, para. 169.

125 Winterstein and Others v. France, para. 88.

126 Olivieira v. the Netherlands, para. 65.

127 Yordanova and Others v. Bulgaria, para. 122.

128 J.D. and A v. The United Kingdom, para. 102; see also Garib v. the Netherlands, para. 154; Mouvement Raëlien Suisse v. Switzerland, para. 70.

129 For typologies of the ways in which local authorities engage with human rights, see Durmuş, ‘A typology of local governments’ engagement with human rights’, 42; Marx et al., ‘Localizing Fundamental Rights’, 259–62.

130 Winterstein and Others v. France paras. 83–84.

131 See also Garib v. the Netherlands, Dissenting opinion of Judge Pinto de Albuquerque, joined by Judge Vehabović, para. 14, criticising the majority’s focus on the higher level legal framework: ‘the scrutiny of the interference sustained by Ms Garib must not be exercised exclusively or principally at the level of the general measure regulating housing permits for deprived neighbourhoods … but also and above all must also concern the individual measure by which the applicant was denied such a permit’; see also J. Gerards, ‘Abstract and Concrete Reasonableness Review by the European Court of Human Rights’, European Convention on Human Rights Law Review 1 (2020): 218–47.

132 Laurens Lavrysen, Human Rights in a Positive State Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights (CUP, 2017) 130.

133 Vladislava Stoyanova, ‘Framing Positive Obligations Under the European Convention on Human Rights Law: Mediating between the Abstract and the Concrete’, Human Rights Law Review 23 (2023): 1, 2.

134 Stoyanova, ‘Framing Positive Obligations’, 24.

135 Lavrysen, Human Rights in a Positive State, 216; this assessment is broadly like balancing under negative obligations, Lavrysen, 229.

136 Hudorovič and Others v. Slovenia, para. 116.

137 Hudorovič and Others v. Slovenia, para. 143.

138 Hudorovič and Others v. Slovenia, para. 146.

139 Hudorovič and Others v. Slovenia, para. 37

140 Hudorovič and Others v. Slovenia, para. 51

141 Hudorovič and Others v. Slovenia, para. 156.

142 Moreno Gómez v. Spain, para. 60.

143 Moreno Gómez v. Spain, para. 57.

144 Moreno Gómez v. Spain, para. 62.

145 Moreno Gómez v. Spain, para. 61.

146 Winterstein and Others v. France, para. 63.

147 K. and T. v. Finland, para. 63.

148 K. and T. v. Finland, para. 171.

149 K. and T. v. Finland, para. 172.

150 K. and T. v. Finland, para. 173.

151 See UNHRC (2015), para. 26.

152 Hudorovič and Others v. Slovenia, para. 155.

153 Yordanova and Others v. Bulgaria, para. 124.

154 Yordanova and Others v. Bulgaria, para. 128.

155 ECHR, Article 35 (1).

156 Moreno Gómez v. Spain, para. 28.

157 Moreno Gómez v. Spain, para. 50.

158 Winterstein and Others v. France, para. 90.

159 Mouvement Raëlien Suisse v. Switzerland, para. 64.

160 Yordanova and Others v. Bulgaria, para. 122.

161 Hudorovič and Others v. Slovenia, para. 146.