Table of Contents

The European Court of Human Rights and its Discontents

The European Court of Human Rights and its Discontents

Turning Criticism into Strength

Edited by Spyridon Flogaitis, Tom Zwart and Julie Fraser

The European Court of Human Rights has long been part of the most advanced human rights regime in the world. However, the Court has increasingly drawn criticism, with questions raised about its legitimacy and backlog of cases. This book for the first time brings together the critics of the Court and its proponents to debate these issues. The result is a collection which reflects balanced perspectives on the Court’s successes and challenges.

Chapter 8: More human rights than Court: Why the legitimacy of the European Court of Human Rights is in need of repair and how it can be done

Tom Zwart

Subjects: law - academic, constitutional and administrative law, european law, human rights, politics and public policy, human rights


Over the past few years the European Court of Human Rights (‘ECtHR’ or ‘the Court’) has become the subject of criticism from many quarters, especially, but not exclusively from politicians. This chapter makes the point that the Court and its inner circle should not downplay the importance or deny the merit of this criticism. Rather than stirring up negative feelings against the Court, politicians are relaying signals they receive from their constituents. They are acting like a true friend, or zhanwei, who tells it like it is to the Court. The criticism that has been brought to the surface by the politicians reflects a growing loss of legitimacy by the ECtHR vis-à-vis the general public. This chapter poses the question: what has gone wrong and what can be done to restore support for the work of the Court? It proceeds in five sections. Section I discusses some of the criticism aimed at the Court and the way in which the judges have responded to it. Section II describes the strategies currently employed by the Court and why they are failing. In section III the point is made that restoring the Court’s legitimacy is the best way out of the current quagmire and section IV demonstrates how this can be achieved. Section V argues that the same factors that cause the Court to lose its legitimacy also drive up its caseload.

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