Limitations Clauses, Evidence, and the Burden of Proof in the European Court of Human Rights

Abstract

Courts and tribunals involved in evaluating whether states have applied limitations clauses appropriately should pay increased attention to the core underlying issues of the parties’ respective burdens of proof, the standards of proof, and identifying which parties are required to prove which assertions. The European Court of Human Rights has not articulated with sufficient clarity the rules of evidence that apply to its proceedings, thereby permitting ad hoc and inconsistent evaluations of issues pertaining to the freedom of religion or belief. The Court should take seriously its obligation to clarify its standards and thereafter apply them.