The European Court of Human Rights and its Discontents
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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.
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Chapter 9: The vital relationship between the European Court of Human Rights and national courts

Turning Criticism into Strength

Wilhelmina Thomassen


The issues facing the European Court of Human Rights (‘ECtHR’ or ‘the Court’), and the subject of scholarly articles such as those in this volume, have varied from the workload of the Court to its legitimacy, and from the quality of the judges to the legal tools used by the Court in its interpretation of the European Convention on Human Rights (‘ECHR’ or ‘the Convention’). The focus of this chapter is on the role of ECtHR jurisprudence in national courts; the role of national judges; and the relationship between Strasbourg and national courts and governments. A strong point of the Court, and a key value of the Convention system, is the importance of its case law for national courts. The contemporary European legal space is dominated by economic interests, regulation and the free flow of persons and goods. These, as well as other changes that European societies have undergone during the last 50 years, provide a whole new context to the cases concerning fundamental rights brought before the national courts. The notion of respect for private life or freedom of speech, for example, can have quite a different meaning nowadays than five decades ago. Anti-terrorism measures can negatively influence our daily lives. Media technology can threaten our privacy. In such a context, individuals who are confronted with an interference in their private life or to their freedom of expression take their cases before the national courts who have to decide on these novel issues.

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