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24 results

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  • How “Systematic” is the European Court of Human Rights’ Approach to “Systemic” Violations of the Convention?

  • Koen Lemmens, Sébastien Van Drooghenbroeck
  • Journal:
    German Law Journal / Volume 24 / Issue 6 / September 2023
    Published online by Cambridge University Press:
    29 September 2023, pp. 1044-1061
    • Article
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  • In analyzing the mission of the European Court of Human Rights, it is common to distinguish between what is akin to “individual justice” and what is more akin to “constitutional justice.” The way in which the Court combines the two depends on its “judicial policy.” In this contribution, we will examine how the “systemic” nature of the violations complained of affects the “judicial policy.”

  • Protocol No 16 to the ECHR: Managing Backlog through Complex Judicial Dialogue?

  • Koen Lemmens
  • Journal:
    European Constitutional Law Review / Volume 15 / Issue 4 / December 2019
    Published online by Cambridge University Press:
    05 November 2019, pp. 691-713
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  • European Court of Human Rights – Protocol No. 16 – Advisory Opinions – Managing backlog – Unpredictable effects – Complex judicial dialogue – Interplay with preliminary rulings of European Court of Justice and national constitutional courts – Bosphorus presumption – National courts in charge of judicial diplomacy – Increased burden for national courts

Criticism of the European Court of Human Rights
  • Shifting the Convention System: Counter-dynamics at the National and EU Level
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016
  • 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.

  • Chapter 1 - Introduction: Purpose and Structure, Categorisation of States and Hypotheses

  • from PART I - INTRODUCTORY
    • 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)
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 3-22

  • Summary

    PURPOSE OF THE EDITED VOLUME

    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. The most severe criticism has been voiced in the UK, where ‘charges against the Court … over the past two years have been unprecedented’. Also voices outside the UK, however, have subscribed to these views. This should be taken seriously, since scholars warn that institutions with eroding legitimacy risk demise or reform. This is exactly what the Strasbourg Court was facing within the reform talks leading up to the Brighton Conference under the UK Chairmanship of the Committee of Ministers of the Council of Europe. Ultimately, however, the Brighton Declaration advanced for the most part a technical reform. It is therefore unlikely that the Brighton Declaration and the ensuing Protocol No 15 will be able to tone down opponents of an activist European Court. The Court will thus very carefully need to maintain the difficult balance between human rights protection and respect for national sovereignty.

    The goal of this volume is to explore how widespread this critical attitude of the European Court of Human Rights really is. Secondly, the volume 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. These questions have so far remained largely unexplored, especially cross-nationally. Therefore, the focus is not solely put on countries that are known to have highly critical voices and that, particularly in the case of the UK, have been heavily documented. Rather, we aim to evaluate whether a change in dynamics is a pan-European reality or merely limited to a few countries.

    For this reason, our coverage is wide, compromising fifteen Contracting Parties and the EU, as a future Contracting Party. Every in-depth report is based on the same structured questionnaire, which can be found in the annex. The authors also followed the same chapter template which coincides with the questionnaire, as to encourage easy comparison for the reader.

  • Annex 1 - Questionnaire

  • from APPENDIX
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 557-562

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

  • To what extent is there criticism of the European Court of Human Rights regarding its interpretation of the Convention, its functioning and its legitimacy (a) in the media, (b) in academia, (c) in the political world and (d) in the judiciary?

  • Is the lack or presence of criticism linked to the status of the Convention and the ECtHR judgments in the national legal system? Why?

  • Has there been a recent surge in criticism? If so, what sparked this?

  • Is this criticism widespread and/or permanently present or only sporadic and/or temporary? Why?

  • Is this criticism aimed at specific judgments or is it more systemic, namely aimed at the general mechanisms of interpretation, general functioning or overall legitimacy of the European Court of Human Rights?

  • If there is a significant difference in the amount and nature of criticism of the European Court of Human Rights in the different fields (media, academia, politics and judiciary), does this cause any specific tensions at the national level? Has this had any effects on their interrelationship?

    • COUNTER-DYNAMICS AT THE POLITICAL LEVEL

    POLITICS AND THE CONVENTION SYSTEM

  • To what extent is the Convention system part of the political/electoral debate?

  • Do parties have distinct views on the (reform of the) European Court of Human Rights and the European Convention on Human Rights? If so, what are they? Are they one of the core points of the political party's manifesto/identity?

  • Have the political parties’ positions evolved? For instance, have they become increasingly in favour for reforming the European Court of Human Rights or become increasingly euro-sceptic or euro-friendly? If so, why?

    • POLITICAL STRATEGIES AT THE EUROPEAN LEVEL: REFORM OF THE CONVENTION SYSTEM

  • What was the position of the national government in the build-up to the Brighton Conference in April 2012 concerning the reforms needed to the Convention system? Was this position beforehand and/or afterwards discussed in the national parliament? If so, to what extent and did this reveal differences in opinion between the political parties and majority v. opposition?

  • To what extent did the government and parliament agree with the UK Draft of the Brighton Declaration?

  • Annex 2 - Questionnaire EU

  • from APPENDIX
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 563-566

  • Summary

    CRITICISM OF THE EUROPEAN COURT OF HUMAN RIGHTS

  • To what extent is there criticism of the European Court of Human Rights regarding its interpretation of the Convention, its functioning and its legitimacy (a) in the political world and (b) in the judiciary?

  • Is the lack or presence of criticism linked to the status of the Convention and the ECtHR judgments in the national legal system? Why?

  • Has there been a recent surge in criticism? If so, what sparked this?

  • Is this criticism widespread and/or permanently present or only sporadic and/or temporary? Why?

  • Is this criticism aimed at specific judgments or is it more systemic, namely aimed at the general mechanisms of interpretation, general functioning or overall legitimacy of the European Court of Human Rights?

  • If there is a significant difference in the amount and nature of criticism of the European Court of Human Rights in the different fields (media, academia, politics and judiciary), does this cause any specific tensions at the EU level? Has this had any effects on their interrelationship?

    • COUNTER-DYNAMICS AT THE POLITICAL LEVEL

    POLITICS AND THE CONVENTION SYSTEM

  • To what extent is the Convention system part of the political/electoral debate?

  • Do European political groups in have distinct views on the (reform of the) European Court of Human Rights and the European Convention on Human Rights? If so, what are they? Are they one of the core points of the political groups’ manifesto/identity?

  • Have the European political groups’ positions evolved with regard to reform of the Convention system and EU accession? For instance, have they become increasingly in favour for reforming the European Court of Human Rights or become increasingly euro-sceptic or euro-friendly? If so, why?

    • POLITICAL STRATEGIES AT THE EUROPEAN LEVEL:

    REFORM OF THE CONVENTION SYSTEM

  • What was the position of European Parliament, the Commission and the Council in the build-up to the Brighton Conference in April 2012 concerning the reforms needed to the Convention system? Was this position beforehand and/or afterwards discussed in the European Parliament? If so, to what extent and did this reveal differences in opinion between the political groups?

  • To what extent did the European Parliament, the Commission and the Council agree with the UK Draft of the Brighton Declaration?

  • Chapter 2 - Criticising the European Court of Human Rights or Misunderstanding the Dynamics of Human Rights Protection?

  • from PART I - INTRODUCTORY
    • By Koen Lemmens, PhD from the European University Institute (Fiesole, Italy) and is Associate Professor of Public Law at KU Leuven (Belgium)
  • Edited by Patricia Popelier, Sarah Lambrecht, Koen Lemmens
  • Book:
    Criticism of the European Court of Human Rights
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    24 June 2016, pp 23-40

  • Summary

    INTRODUCTION

    In recent years, the European Court of Human Rights has been heavily criticised by several camps. Distinguished scholars, judges and politicians all have advanced reasons to disapprove of the Court's style of functioning. Technical issues, such as the impressive backlog of the Court – which includes almost 80,000 cases waiting for a judgment – and the inordinate length of the judging procedure, have been the trigger for this set of critiques. There are more fundamental objections, as well. Specifically, some argue that the Strasbourg Court would systematically broaden the scope of the European Convention on Human Rights through a progressive interpretation, and in doing so extend its own jurisdiction. Furthermore, the Court would be paying too little attention to “local” conceptions of human rights. The inherent risk that is perceived here is of the Court delivering judgments that lack member-state-level (read: cultural and grassroots) legitimacy.

    This critique can be too easily dismissed as the nationalist and anti-European logic of hard boiled (neo)-sovereigntists or (neo-)conservatives. Certainly, such logic may be at play in the minds of some critics, e.g., certain British politicians who sought to modify the European Convention on Human Rights in order to reduce the role and scope of the Court. However, the fact that similar criticisms can or at least could be heard in otherwise (mitigated) pro-European circles, as in Belgium and the Netherlands, indicates that we are dealing with an issue worthy of serious reflection.

    I am most familiar with the discussion currently happening in the Benelux, particularly among lawyers. What is striking is that although the discussion as such deals with fundamental questions, it is nonetheless prompted by only incidental references to case law. That is to say, practically every participant in the Benelux discussion on the legitimacy of the Court shall sooner or later refer to specific judgments enacted by the Court to illustrate their viewpoints. Problematically, however, the representativeness of these judgments is never questioned. Such a question is essential for the overall quality of the discussion.

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