Criticism of the European Court of Human Rights: Shifting the Convention System: Counter-dynamics at the National and EU Level

doi:10.1017/9781780685175

For some time now, the European Court of Human Rights is under substantial pressure. From a case overload crisis it stumbled into a legitimacy crisis with regard to certain countries. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. It also assesses to what extent such criticism is being translated in strategies at the political level or at the judicial level and brings about concrete changes in the dynamics between national and European fundamental rights protection. The book is topical and innovative, as these questions have so far remained largely unexplored, especially cross-nationally.Far from focusing exclusively on those voices that are currently raised so loud, conclusions are based on comparative in-depth reports, covering fifteen Contracting Parties and the EU.With contributions of Olgun Akbulut, Tilmann Altwicker, Katarzyna Blay-Grabarczyk, Anna Gamper, Janneke Gerards, Krystyna Kowalik-Banczyk, Sarah Lambrecht, Koen Lemmens, Lubomir Majercík, Giuseppe Martinico, Roger Masterman, Aaron Matta, Christophe Maubernard, Armen Mazmanyan, Katharina Pabel, Eszter Polgári, Patricia Popelier, Clara Rauchegger, Michael Reiertsen and Henrik Wenander.

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Contents

Frontmatter
pp i-iv
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Contents
pp v-xviii
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List of Abbreviations
pp xix-xxii
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PART I - INTRODUCTORY
pp 1-2
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Chapter 1 - Introduction: Purpose and Structure, Categorisation of States and Hypotheses
pp 3-22
- By Patricia Popelier, Professor of Constitutional Law at the University of Antwerp and vice-dean for research at the law faculty, Sarah Lambrecht, Law Clerk at the Belgian Constitutional Court and PhD Candidate at the Research Group Government and Law, Faculty of Law, University of Antwerp, Koen Lemmens, PhD from the European University Institute (Fiesole, Italy) and is Associate Professor of Public Law at KU Leuven (Belgium)
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Chapter 2 - Criticising the European Court of Human Rights or Misunderstanding the Dynamics of Human Rights Protection?
pp 23-40
- By Koen Lemmens, PhD from the European University Institute (Fiesole, Italy) and is Associate Professor of Public Law at KU Leuven (Belgium)
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Chapter 3 - European Union: The EU's Attitude to the ECHR
pp 41-72
- By Clara Rauchegger, PhD Candidate at the University of Cambridge (Trinity Hall) and a scholar of the Austrian Academy of Sciences and the UK Arts & Humanities Research Council, Sarah Lambrecht, Law Clerk at the Belgian Constitutional Court and PhD Candidate at the Research Group Government and Law, Faculty of Law, University of Antwerp
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PART II - SPARSE CRITICISM
pp 73-74
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Chapter 4 - Austria: Endorsing the Convention System, Endorsing the Constitution
pp 75-102
- By Anna Gamper, Full Professor at the Department of Public Law, State and Administrative Theory of the University of Innsbruck
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Chapter 5 - Belgium: Faithful, Obedient, and Just a Little Irritated
pp 103-130
- By Patricia Popelier, Professor of Constitutional Law at the University of Antwerp and vice-dean for research at the law faculty
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Chapter 6 - Czech Republic: Strasbourg Case Law Undisputed
pp 131-154
- By Ľubomír Majerčík, heads Analytics Department at the Constitutional Court of the Czech Republic
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Chapter 7 - Germany: The Long Way of Integrating the Strasbourg Perspective into the Protection of Fundamental Rights
pp 155-176
- By Katharina Pabel, University of Bonn/Germany
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Chapter 8 - Italy: Between Constitutional Openness and Resistance
pp 177-198
- By Giuseppe Martinico, Associate Professor of Comparative Public Law at Scuola Sant'Anna, Pisa
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Chapter 9 - Poland: The Taming of the Shrew
pp 199-238
- By Krystyna Kowalik-Bańczyk, Associate Professor at the Institute of Law Studies of the Polish Academy of Sciences
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Chapter 10 - Sweden: European Court of Human Rights Endorsement with Some Reservations
pp 239-266
- By Henrik Wenander, Associate Professor in Public Law at the Faculty of Law, Lund University
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PART III - MODERATE CRITICISM
pp 267-268
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Chapter 11 - France: “Jet'aime, moi non plus”
pp 269-294
- By Katarzyna Blay-Grabarczyk, Associate Professor at the University of Montpellier (Faculty of Law and Political Science) and the member of the Human Rights European Law Institute (IDEDH), Christophe Maubernard, Associate Professor at the University of Montpellier since 2003
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Chapter 12 - Hungary: ‘Gains and Losses'. Changing the Relationship with the European Court of Human Rights
pp 295-326
- By Eszter Polgári, Assistant Professor at the Department of Legal Studies at the Central European University (Budapest)
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Chapter 13 - The Netherlands: Political Dynamics, Institutional Robustness
pp 327-360
- By Janneke Gerards, Professor of Fundamental Rights Law at Utrecht University (Faculty of Law, Economics and Governance; Institute for Jurisprudence, Constitutional and Administrative Law)
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Chapter 14 - Norway: New Constitutionalism, New Counter-Dynamics?
pp 361-384
- By Michael Reiertsen, Cand. Jur. (University of Tromsø), LL.M Europa-Institut Saarbrücken and PhD Research Fellow at the Department of Public and International Law, University of Oslo
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Chapter 15 - Switzerland: The Substitute Constitution in Times of Popular Dissent
pp 385-412
- By Tilmann Altwicker, Ambizione Fellow of the Swiss National Science Foundation and head of a research group on Transnational Public Security Law at the University of Basel/Switzerland
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Chapter 16 - Turkey: The European Convention on Human Rights as a Tool for Modernisation
pp 413-446
- By Olgun Akbulut, constitutional and human rights scholar at Kadir Has University, Faculty of Law (Istanbul/Turkey)
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PART IV - STRONG CRITICISM
pp 447-448
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Chapter 17 - The United Kingdom: From Strasbourg Surrogacy Towards a British Bill of Rights?
pp 449-478
- By Roger Masterman, Professor of Law at Durham Law School, Durham University
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PART V - HOSTILE CRITICISM
pp 479-480
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Chapter 18 - Russia: In Quest for a European Identity
pp 481-502
- By Aaron Matta, Senior Researcher within the Rule of Law Program at the Hague Institute for Global Justice, Armen Mazmanyan, Director of Apella Institute in Yerevan, Armenia and Visiting Professor at Sanford School of Public Policy, Duke University
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PART VI - SYNTHESIS
pp 503-504
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Chapter 19 - Assessing the Existence of Criticism of the European Court of Human Rights
pp 505-554
- By Sarah Lambrecht, Law Clerk at the Belgian Constitutional Court and PhD Candidate at the Research Group Government and Law, Faculty of Law, University of Antwerp
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APPENDIX
pp 555-556
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Annex 1 - Questionnaire
pp 557-562
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Criticism of the European Court of Human Rights

Shifting the Convention System: Counter-dynamics at the National and EU Level

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