Turning Criticism into Strength
Edited by Spyridon Flogaitis, Tom Zwart and Julie Fraser
Chapter 11: Interaction between the European Court of Human Rights and member States: European consensus, advisory opinions and the question of legitimacy
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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