Coercive Human Rights and the Forgotten History of the Council of Europe's Report on Decriminalisation

Abstract

What if the European Court of Human Rights (ECtHR), instead of developing a ‘coercive human rights doctrine’ concerning state duties to criminalise serious human rights violations, had focused on decriminalisation? The ECtHR has never developed a coherent case law on protecting human rights by removing, rather than adding, criminal regulation. This article returns to a largely forgotten moment in 1980, when the Council of Europe adopted a Report on Decriminalisation, which analysed the costs of criminal justice and made suggestions for overcoming any dysfunctions that would arise from curtailing criminalisation. Engaging with the recommendations and limitations of the reports, this article sheds light on a framework whereby the ECtHR could have approached criminalisation cases differently. Showing that today's ‘coercive human rights doctrine’ is not as obvious as we may believe, the article advances decriminalisation as an alternative that is not just theoretical but grounded in human rights history.