Assessing the Existence of Criticism of the European Court of Human Rights (original) (raw)
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Criticism of the European Court of Human Rights
2016
For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. It also assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. The book is topical and innovative, as these questions have so far remained largely unexplored, especially cross-nationally. Far from focusing exclusively on those voices that are currently raised so loud, conclusions are based on comparative in-depth reports, covering fifteen Contracting Parties and the EU. With contributions of Olgun Akbulut, Tilmann Altwicker, Katarzyna Blay-Grabarczyk, Anna Gamper, Janneke Gerards, Krystyna Kowalik-Bańczyk, Sarah Lambrecht, Koen Lemmens, Lubomir Majerčík, Giuseppe Martinico, Roger Masterman, Aaron Matta, Christophe Maubernard, Armen Mazmanyan, Katharina Pabel, Eszter Polgári, Patricia Popelier, Clara Rauchegger, Michael Reiertsen and Henrik Wenander.
The Legitimacy of the European Court of Human Rights: The View from the Ground
2011
Most recent discussions about the European Court of Human Rights (the “Court”) have been about its caseload and its reform. These discussions not only had to confront questions about whether the current caseload of the Court is harmful to its legitimacy, but also whether the reforms proposed to alleviate the caseload have diminished or will diminish its legitimacy. Despite the fact that questions of legitimacy have been prevalent in these debates, we lack a systematic and overall understanding of the grounds of the legitimacy of the Court. In a three-year long study funded by the Economic Social Research Council of the United Kingdom, Dr.Başak Çalı and her research team have taken a step back from reform debates and conducted an in- depth inquiry into the perceptions of legitimacy of the European Court of Human Rights amongst domestic stakeholders. The study has been designed to further our understanding of perceptions of legitimacy on the ground and focussed on key stakeholder groups whose perceptions of the Court’s legitimacy have a direct impact on its authority: domestic politicians, judges and lawyers who litigate before the Strasbourg Court. After over 100 interviews in five Council of Europe countries and in Strasbourg and a rigorous data analysis process, we are a little wiser than when we started and would like to share our findings with the Council of Europe community.
Voices from the European Court of Human Rights
Netherlands Quarterly of Human Rights, 2009
Th e future of the Strasbourg Court, a large and very busy court, has been the subject of much discussion. Th e capacity of the Court to handle the volume of admissible cases remains a signifi cant challenge, and is made more diffi cult by the absence of ratifi cation by all contracting parties of Protocol No. 14. Ten years aft er the establishment of the new permanent court, nine judges refl ected on aspects of the work of the Court and the challenges it faces. Th e main purpose of this article is to put into the public domain some extracts from those interviews, which cover a wide range of issues. Th e voices from the Court are off ered in the context of an argument that the contracting parties need to recognise the constitutional nature of the Strasbourg Court, and should be, but probably are not, willing to change the admissibility rules to make determination by the Strasbourg Court a matter of discretion rather than entitlement.
The legitimacy of the European human rights regime -a view from the United Kingdom
The purpose of the present paper is threefold. First, my ambition is to improve the analytical framework that is used to assess the legitimacy of the European Court of Human Rights. The Court’s authority can neither be established nor refuted by a single master-argument. Instead, what we need is a careful balancing exercise and this piece aims to set out the main elements of the justificatory equation. Second, using this framework, I intend to put forward the outline of a coherent critique of the European human rights regime. Third, I hope that my paper is able to shed light on why it is natural to expect more vocal criticism from the United Kingdom than from most other member states of the Council of Europe.
Over the past several years, there has been an increase in critiques of the European Court of Human Rights, most notably and surprisingly amongst its founding members, like The Netherlands. These critiques are often understood as a crisis of legitimacy. In order to assess whether this is the case, the definition and operationalisation of legitimacy is crucial. This article evaluates the critiques in The Netherlands, using a subjective understanding of legitimacy by Sharpf and Schmidt, who emphasize input, throughout, and output legitimacy, but also that of the demos concerned. The latter dimension is often overlooked in other studies. The critiques of the European Court of Human Rights in The Netherlands are discussed on the basis of archival research, literature review, interviews, and survey research. On the basis of the exploratory findings for The Netherlands, the article concludes that, in taking a subjective approach to legitimacy that covers all its dimensions, including support for the European demos, into account, the crisis of legitimacy could be deeper than most scholars estimate. Both the theoretical approach and the empirical insights from The Netherlands are considered of relevance to wider research on the legitimacy of the international human rights regime.
Justice as Legitimacy in the European Court of Human Rights
Using the example of the prisoner voting cases at the European Court of Human Rights, this chapter builds on existing literature regarding the legitimacy of judicial institutions to consider the role of justice with respect to the normative and sociological legitimacy of international human rights courts. The chapter identifies the pursuit of just outcomes as a significant independent influence on the legitimacy of these courts. Doing justice even when it requires expansive lawmaking in order to protect unpopular groups can be an affirmative source of legitimacy for these institutions. Although the legitimacy challenges faced by the European Court of Human Rights in connection with its prisoner voting cases are significant, the chapter argues that the Court’s retroactive narrowing of its decision in Hirst may have undermined the extent to which prisoner voting is viewed as an issue of justice. When a court that derives its legitimacy from its moral compass bows to political pressure, it risks doing violence to the perception that it is a moral actor, which may be a critical part of the foundation of its legitimacy. In some instances, taking an unpopular position and displeasing states is precisely what human rights courts are supposed to do—and in so doing, they may end up strengthening their position in the long term.
Human rights problems exist all over Europe. Although the European Court of Human Rights is competent to deal with individual complaints about such problems, the Court is much criticised. Moreover, there may be little political will or capacity to tackle the structural problems which have caused such complaints to be made. At the same time, the judgments of the Court can be shown to have great impact on national case-law, legislation and policy. Paradoxically, thus, the Court's case-law has an important transformative power, as is further explained in this essay.
The European Court of Human Rights: its Role and Authority
This text provides an overview of the role and authority of the European Court of Human Rights which celebrated its 20th anniversary as a full-time court in November 2018. After providing a short description of the Court’s role in Europe’s changing legal architecture, emphasis is placed on the authority that the Court’s case-law has acquired as well as the challenges that it faces, principally from the ‘new democracies,’ after the fall of the Berlin Wall. Focus is then placed on the responsibility of states to consolidate and reinforce the effectiveness of the European Convention on Human Rights and the Strasbourg Court’s authority. To be published in No.1 Arabic Review of International Humanitarian Law and Human Rights Education (new on-line publication, December 2018, https://acihl.org/news.htm).
The European Court of Human Rights: Current Challenges in Historical Perspective, Edited by Helmut P. Aust and Esra Demir-Gürsel, Edward Elgar Publication, 2021
This concluding chapter offers an analysis of the themes emerging across the contributions based on their key findings. It first analyses the continuities and novelties in the case law of the European Court of Human Rights (the Court) vis-à-vis two coinciding challenges - growing criticism of the ECtHR and further entrenchment of authoritarian modes of governance. Second, it examines the Court’s sensitivity towards states’ concerns and interests, even when dealing with authoritarian laws, policies, and practices, as well as with the demands of those at the margins of liberal legal orders. Third, it discusses the dualities based on which the Court operates - the dualities between past promises and current conditions, and between the inter-related but different goals of the European Convention on Human Rights. The chapter makes a two-fold argument. First, the Court’s self-restraint is not limited to liberal states; to a certain extent, it is also at work vis-à-vis states with authoritarian tendencies. Second, the Court’s operations are not only structured by the current geopolitical considerations, but also by its historical roots and evolution.
Journal of Law Policy and Globalization, 2015
Europe has succeeded in principle, in moving from the stage of proclamation of inalienable Human Rights-a gesture of political intent, to that of their effective implementation. Despite a great beginning when the European Convention for the Protection of Human Rights and Fundamental Freedoms (E.C.H.R) was signed in 1956, the path to effective protection of Human Rights has been long and difficult even in Europe. The European Court of Human Rights established in 1959 was the first Independent International Tribunal dedicated to the protection of Human Rights. This article examines the jurisprudence of the European Court of Human Right as a panacea for an effective enforcement of the human rights regime and concludes that the European Courts of Human Rights jurisprudence reaches a good equilibrium on many matters, while on a few others, in the eyes of the present commentator, it could still be improved. Similarly, the court rather than divesting itself of its specific mistake in order to become a general court of cassation of the Council of Europe member states, have instead engaged in a middle way, assigning to itself the role of an essential milestone in the protection and constant development of that branch of law called 'Human Rights' and which embodies in some sort, worded general propositions and the essential political and legal commitments of the democratic state of Europe.