The Engel criteria in the 21st century: Irrational flexibility and deference in recent European Court of Human Rights jurisprudence

What does it mean for someone to be charged with a criminal offence? This is a question of considerable significance for multiple heavily-litigated European Convention on Human Rights (ECHR) guarantees. For decades the approach to the criminal charge threshold has been to recite the Engel ‘autonomous meaning’ criteria. This article is focused squarely on the last decade of the European Court of Human Rights (ECtHR) case law on the Engel criteria, not only on the Grand Chamber decisions in Gestur Jónsson and Ragnar Halldór Hall v Iceland (2020) and Grosam v Czech Republic (2023), but also dozens of other recent decisions, most of which have received no detailed scholarly attention. Based on this analysis, this article argues, first, that the recent jurisprudence is characterized by a degree of incoherence and inconsistency that manifests as ‘irrational flexibility’. Second, and contrary to much existing literature, the last decade of case law shows that the Engel criteria can provide cover for decisions facilitating State sovereignty or facilitating State arguments justifying restrictions on the basis of broader public interests. Thus the article contributes to much broader conversations about recent trends in the ECtHR’s oscillating approach to European supervision and State sovereignty: the article draws together some of the most heavily-litigated ECHR guarantees and some of the more prominent themes in current commentary on ECtHR case law more generally.