2. Other developments and steps to overcome the crisis
Reforms aside, the Committee of Ministers continuously acknowledged the need to improve the protection of human rights by the help of the ECtHR. Shortly after Protocol 14 the Committee of Ministers of the CoE recalled „its mission to take measures in order to guarantee the long-term effectiveness of the control system instituted by the Convention (Council of Europe 2004)“. In this section some of the steps taken as well as issues that remain problematic will be highlighted.
Let us start with a more general debate about both nature and purpose of the European human rights system: As the overload of applications still poses one of the ...view middle of the document...
“ On the contrary proponents of the ‚individual justice‘ position argue that the right of individual petition is at the core of the Convention, its whole raison d’être allowing everyone of the 820 million inhabitants to bring before Court violations of human rights. A selective approach, critiques fear will thus call into question the Court’s legitimacy and will have political consequences due to the selective approach.
One important element which needs to be considered when referring to the Court’s effectiveness and impact is its influence on national legal systems, which is beyond any doubt quite impressive. Stone Sweet & Keller note that „the ECHR can be said to be effective, domestically, to the extent that national officials recognize, enforce, and give full effect to Convention rights and the interpretive authority of the Court, in their decisions (2008: 6).“ According to them no state can insulate itself from scope and influence the Convention undoubtedly inherits, as its rights possess supra-legislative status and thus bind national officials.
More specific critics however claim that the positive feedback loop or so called culture of compliance which so far induced states to implement ECtHR judgments would be in danger of stalling as „the Court has become more skilled at identifying systematic human rights violations, however, the delays in compliance by states responsible for those violations have lengthened and are becoming endemic in some countries (Helfer 2014).“ This bears the risk of creating a vicious circle in which „government officials point to public criticisms of the Court and compliance delays in other states to justify noncompliance in their own jurisdictions and to legitimize criticism of those who advocate for adherence to ECtHR rulings.“
While a number of core doctrines have so far guided the Court in its jurisprudence - objectivity, effectiveness, autonomy and evolutive interpretation - the interpretative tool has been found to be problematic in regards to the ECtHR and national legal orders. Relying on a passage in Tyrer v. United Kingdom, which inaugurated the Court's extensive use of this evolutive interpretation up to today, the ECtHR is supposed to be treated as living instrument, encompassing three elements: firstly present-day standards are guiding the Court, secondly an acceptance of these standards by the member states, and thirdly that the Court assigns decisive importance to what the member state at hands finds acceptable. This notion did not only have an influence on how the ECtHR itself, but also how member states and their supreme courts interpret the Convention, especially as they are required to respect its evolving standards (Letsas, 2012). Helfer (2014) however, stresses the need for caution „when expansively interpreting the Convention and fashioning remedies. This is not to suggest that the Court will abandon or significantly narrow the jurisprudential principles that it has so carefully developed....