The burden and standard of proof in international human rights courts

Tobias Thienel

Chapter 19 in Research Handbook on Accountability for Human Rights Violations, 2025, pp 334-351 from Edward Elgar Publishing

Abstract: Accountability for human rights violations occasionally requires fact-finding at the international level. This chapter examines the concept of the burden of proof in human rights proceedings, and how the courts have divided the burden of proof between applicants and respondent States. The chapter also addresses which standard of proof the courts apply. In relation to these matters, the chapter will address the European Court of Human Rights, as well as the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights. These courts do not apply any burden of proof in the sense that they would not consider any evidence other than that produced by the parties. However, a ‘persuasive’ or ‘legal’ burden of proof applies in all relevant proceedings. In apportioning this burden to the parties, the courts are largely faithful to the principle of actori incumbit probatio, reus in excipiendo fit actor, under which the applicant generally bears the burden of proof in relation to an interference with a human right, whereas the respondent State bears the burden on the justification of an interference. The same general logic has been applied in discrimination cases. However, the courts have often departed from this strict rule to alleviate the burden on applicants. In discrimination cases, the European Court frequently requires the applicants only to make a prima facie case, whereupon the respondent State will have to adduce some evidence in rebuttal. In other cases, involving the proof of interference, the European Court applies presumptions operating in the applicants’ favour. The other two courts have also taken a flexible view of the burden of proof to account for the inequality of the parties.

Keywords: Evidence; Burden of proof; Presumptions; European Court of Human Rights; Inter-American Court of Human Rights; African Court of Human and Peoples; Rights (search for similar items in EconPapers)
Date: 2025
ISBN: 9781035306923
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