Enriched forms of legal representation at the European Court of Human Rights - alteration, alienation and lawfare

Abstract

In this paper, we propose to answer the following question: What are the consequences of practicing Enriched Forms of Legal Representation (EFLRs) at the European Court of Human Rights? We answer this question by pursuing three arguments. First, we contend that cause lawyering, but also strategic litigation, human rights litigation and public interest litigation, represent EFLRs, that is a service of legal representation “enriched” with the lawyer’s political, economic or social preference. We also argue that EFLRs describe situations in which two trials take place under the cover of a single one. While a “surface trial” takes place in a court of law, a simultaneous “deep trial” allows the applicant and lawyer to fight for a cause that goes beyond the direct interest of the applicant. Second, we contend that the EFLRs may pose risks to the applicants, their lawyers and the legal systems within which they operate. Thus, focusing on the ECtHR, we argue that EFLRs may be devised, practiced or interpreted as alteration, alienation or lawfare. Lastly, we contend that, whereas EFLRs have their place in stable democratic societies, the risks they pose increase during armed conflict. In such instances, a victim-centric approach – drawn from humanitarian principles – to international adjudication should be prioritised.