Turning Criticism into Strength
Edited by Spyridon Flogaitis, Tom Zwart and Julie Fraser
Chapter 12: Amicus curiae as a means to reinforce the legitimacy of the European Court of Human Rights
The legitimacy of the European Court of Human Rights (‘ECtHR’ or ‘the Court’) has recently been called into question. The Court has been accused of failing to produce sound and consistent judgments and of not always providing transparent procedural safeguards. Moreover, it has been argued that the Court does not respect established domestic law, which has been created through democratic procedures at the national level. The focus of this debate has always been on the member States and the Court, while little has been said about civil society organisations and activists involved in cases before the Court. This chapter argues that civil society litigation in the form of amicus curiae also needs to be addressed where such interventions are linked to elements of the Court’s legitimacy. In so doing, this chapter highlights I) coherence and consistency based legitimacy, II) institutional legitimacy and III) procedural legitimacy. In particular, the aim of this chapter is to demonstrate how amicus curiae interventions can and do contribute to coherence and consistency based legitimacy as well as institutional legitimacy; and to illustrate some deficiencies with regard to procedural legitimacy when it comes to the practice of admitting amicus curiae interventions. It is important to note that amicus curiae interventions alone cannot reinforce the Court’s legitimacy because, inter alia, the number of interventions is too small compared to all the decisions and judgments rendered by the Court each year. However, amicus curiae briefs can increase the legitimacy of those judgments to which interventions are submitted.
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