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 11: Interaction between the European Court of Human Rights and member States: European consensus, advisory opinions and the question of legitimacy

Kanstantsin Dzehtsiarou

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


The interaction between the European Court of Human Rights (‘ECtHR’ or ‘the Court’) and the member States is crucially important for the development of human rights protection in Europe. Synergistic relations between the Court and the member States, as well as the embeddedness of the Convention in national legal systems, are the preconditions for effective functioning of the ECtHR. The system of human rights protection as established by the European Convention on Human Rights (‘ECHR’ or ‘the Convention’) was considered as the most effective regional system of human rights protection. At the same time, the success of the ECtHR is challenged by an enormous backlog of more than 100,000 pending applications and an ideological crisis: the member States continue to fiercely attack the Court’s legitimacy. In such circumstances the Court must be reformed. However, such reforms should be carefully considered. Judicial and extrajudicial cooperation between the Court and the member States should assist the Court in tackling the backlog (through the implementation of the Convention by the member States) and reinstall its legitimacy through broader acceptance and compliance with its judgments. Misunderstanding and mistrust between the Court and some member States cannot advance the purposes in the Convention’s Preamble and to which all member States have subscribed. It is, therefore, time to replace the ideology of confrontation between the Court and States with the ideology of cooperation. Member States were called to discuss reforming the Court at the Brighton Conference in April 2012.

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