WHO IS WORTHY OF PROTECTION?

THE ROLE OF EUROPEAN COURTS IN SAFEGUARDING THE RIGHTS OF MARGINALIZED GROUPS IN CENTRAL AND EASTERN EUROPE

Resumo

This paper examines the role of Europe’s two principal courts, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), in protecting the rights of marginalized communities, with a particular focus on developments in Central and Eastern European EU Member States over the past two decades. While operating under distinct institutional mandates, both courts have significantly contributed to advancing human rights protections for vulnerable populations, including the groups at the centre of this research, namely the Roma, LGBTIQ individuals, and persons with disabilities. The ECtHR, tasked with monitoring compliance with the European Convention on Human Rights, and the CJEU, which ensures the uniform application of EU law, including the Charter of Fundamental Rights, both play crucial roles in setting normative standards. This paper explores how their jurisprudence has responded to evolving challenges in the region and whether their interventions reflect broader trends in the legal and political climate. The paper adopts a comparative doctrinal analysis of the case law of the ECtHR and the CJEU, focusing on key judgments relating to Roma, LGBTIQ individuals, and persons with disabilities in Central and Eastern Europe. Case selection was guided by relevance, legal significance, and regional focus. Supplementary materials include secondary literature, reports by international organizations, and contextual data on the socio-political environment in the region. The analysis considers both substantive rights interpretations and procedural developments, while also identifying institutional and systemic limitations that hinder the effective realization of rights. The paper identifies a growing judicial sensitivity in both courts to the specific needs and vulnerabilities of marginalized communities, reflecting broader international human rights trends. However, significant obstacles persist. At the national level, economic constraints, legislative backsliding under populist and authoritarian regimes, and the politicization of domestic legal systems frequently obstruct the implementation of judgments. Marginalized groups also face structural barriers to justice, including high litigation costs, language hurdles, and cultural marginalization. On the international level, enforcement remains weak. The principle of subsidiarity and limited follow-up mechanisms hinder the ability of these Courts to ensure compliance. The paper concludes that while the ECtHR and the CJEU have both demonstrated an increasing willingness to interpret fundamental rights in light of shifting social realities and international obligations, their ability to effect meaningful change remains constrained. Systemic enforcement gaps, institutional inertia, and national resistance continue to pose significant challenges to the realization of equal rights for Europe’s most marginalized communities.