The challenge of risk assessment by the ECtHR

Like other institutions, the European Court of Human Rights (ECtHR) is often called upon to deal with complex situations where the notion of risk is at stake. This may occur in a variety of cases which involve, for example, threats from an individual to another’s life or the (expected) decision to deport a person to his or her country of origin where he or she is at risk of torture or other ill-treatment.

In these cases, applicants often claim that their fundamental rights (for example, the right to life or the prohibition of inhuman treatment) are or had been exposed to a risk and allege that a State fails or has failed to react adequately in order to prevent a damage (death, injury, etc.) from occurring. The ECtHR must then examine this alleged risk in order to check whether the situation leads to a violation of a provision of the Convention. In this context, the way in which the Court understands the concept of risk and carries out risk analysis in practice can be decisive for the outcome of its reasoning. The risk analysis that judges have to produce is however a complex intellectual challenge. This requires them to examine current or past situations that are characterized by uncertainty.

In practice, it appears that the reasoning developed by the Court in this respect is not based on clearly defined concepts or an identifiable methodology. For instance, a study of the terminology used in the case law, both in English and French, reveals some inconsistencies which suggest an unsystematic approach. In other words, the ECtHR often undertakes operations that involve risk analysis, but it does not seem to implement the theories based on the extensive literature that has been developed in other disciplines (such as economy, sociology or psychology). Nor does the Court use the tools that are generally referred to by risk management practitioners.

Nonetheless, a reference to some key elements of the risk literature - such as the estimation of the severity and probability of a damage (to assess the level of a risk) or the notion of risk acceptability, in its individual and collective dimensions - are likely to allow a new reflection on some significant concepts of human rights law. Thus, the economic notion of severity could be linked to the concept ‘minimum level of severity’ which can be found in the case law of the ECtHR, while the concept of probability could help to explain certain reasoning in terms of evidence. Finally, the examination of the elastic notion of risk acceptability could provide new explanations for legal concepts that also have an elastic character, such as legitimacy, proportionality or margin of appreciation of States.