Chapter

Rethinking the European Court of Human Rights

Luzius Wildhaber

in The European Court of Human Rights between Law and Politics

Published in print June 2011 | ISBN: 9780199694495
Published online September 2011 | e-ISBN: 9780191729782 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199694495.003.0011
Rethinking the European Court of Human Rights

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This chapter discusses the need fundamentally to reform the Court. The chapter argues that the focus should be on the most serious or structural human rights violations, and that a departure from earlier notions of an unrestricted right of individual petition has already become a reality and should therefore be recognized for reasons of honesty, transparency, and pragmatic realism. The argument is based on an analysis of the functions of the ECtHR filtering (‘wailing wall’), routine adjudication, borderline fine-tuning, judging grave violations, as well as structural and systemic problems. The author's overall approach is that an evolution of human rights standards is well-nigh inevitable, but that standards of protection should not be developed too aggressively. The ever-increasing case overload is challenging the legitimacy of the ECtHR, since it has become close to impossible to guarantee an individual review of each application.

Keywords: ECHR; reform; functions; adjudication; individual cases; elucidating general rules; evolutive interpretation; originalism; case overload; caseload; constitutional justice; individual justice

Chapter.  13325 words. 

Subjects: Public International Law

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