EUROPEAN COURT OF HUMAN RIGHTS AND OTHER INSTITUTIONS:
FUNCTIONS AND CHALLENGES
1. Advisory Jurisdiction of the European Court of Human Rights (ECtHR)
Purpose:
The highest national courts may request advisory opinions from the ECtHR on the interpretation of
the Convention in unclear or novel situations.
Objective:
● To reduce the number of cases reaching Strasbourg.
● To ensure that national authorities apply the Convention correctly from the outset.
● To achieve more consistent human rights protection across Europe.
Conditions:
● Only the highest domestic courts can request an advisory opinion.
● The question must concern a matter not yet clarified by existing case law.
● Typical question: “We found no case law on this issue; could you clarify how to interpret the
Convention here?”
Criticism:
● Uncertain whether it actually saves time.
● Lawyers will likely still bring cases to Strasbourg (“let’s give it a try”).
● Drafting an opinion may take as much time as deciding a case.
● Professor’s view: not a major practical advantage.
Second advisory procedure:
● The Committee of Ministers of the Council of Europe may request opinions from the Court
(e.g. on judicial elections).
● However, this is mostly of institutional, not individual, importance.
1
,2. Current Challenges of the Court
Workload:
● Around 60,000 pending cases.
● Appointing more judges would not solve the problem — more judges would simply lead to
more cases.
Possible solution:
● Strengthen domestic protection of the Convention.
● Fewer violations at the national level → fewer applications to Strasbourg.
Fundamental question:
What kind of court should the ECtHR be?
● Constitutional Court model: deal only with fundamental, systemically important cases.
● Individual Justice model: remain open to all individual victims.
Case example: Burmich v. Ukraine — bundling of similar cases; controversial since it limits the right
to individual application.
3. Complexity and Legitimacy of the Court
Increasing complexity:
● Netherlands & UK v. Russia — judgment of over 500 pages.
Controversial cases:
● Lautsi v. Italy (crucifix in schools) → religious sensitivity.
● Ireland (abortion laws).
● Russia (conflict with “traditional values”).
● The margin of appreciation doctrine helps balance national discretion and Strasbourg’s
supervision.
Debate on legitimacy:
● Realists: the Court should be pragmatic.
● Idealists: the Court must fully protect rights, regardless of political backlash.
2
, Withdrawal of jurisdiction:
● Legally possible, but politically very sensitive.
4. The European Union and the Council of Europe
Context:
● All EU Member States are parties to the European Convention on Human Rights (ECHR).
● The EU itself is not a High Contracting Party.
Problem:
● Possible conflicts between obligations under EU law and the Convention.
● No direct Strasbourg oversight of EU institutions.
Case: Bosphorus Airways v. Ireland (2005)
● Turkish airline’s aircraft detained under EU sanctions.
● Ireland claimed it was merely applying EU law.
● Strasbourg Court: created the Bosphorus presumption — EU law is presumed to offer
equivalent human rights protection, unless there is a manifest deficiency.
Criticism:
● Presumption applies to EU law, but not to national law (e.g. German law).
● Conceptually inconsistent: the ECHR is based on individual assessment, not mutual trust
(unlike EU law).
Conclusion:
● Tension between individual rights protection (ECHR) and systemic trust (EU).
● The EU’s accession to the ECHR remains politically and legally unlikely.
5. State Obligations under the Convention
3
FUNCTIONS AND CHALLENGES
1. Advisory Jurisdiction of the European Court of Human Rights (ECtHR)
Purpose:
The highest national courts may request advisory opinions from the ECtHR on the interpretation of
the Convention in unclear or novel situations.
Objective:
● To reduce the number of cases reaching Strasbourg.
● To ensure that national authorities apply the Convention correctly from the outset.
● To achieve more consistent human rights protection across Europe.
Conditions:
● Only the highest domestic courts can request an advisory opinion.
● The question must concern a matter not yet clarified by existing case law.
● Typical question: “We found no case law on this issue; could you clarify how to interpret the
Convention here?”
Criticism:
● Uncertain whether it actually saves time.
● Lawyers will likely still bring cases to Strasbourg (“let’s give it a try”).
● Drafting an opinion may take as much time as deciding a case.
● Professor’s view: not a major practical advantage.
Second advisory procedure:
● The Committee of Ministers of the Council of Europe may request opinions from the Court
(e.g. on judicial elections).
● However, this is mostly of institutional, not individual, importance.
1
,2. Current Challenges of the Court
Workload:
● Around 60,000 pending cases.
● Appointing more judges would not solve the problem — more judges would simply lead to
more cases.
Possible solution:
● Strengthen domestic protection of the Convention.
● Fewer violations at the national level → fewer applications to Strasbourg.
Fundamental question:
What kind of court should the ECtHR be?
● Constitutional Court model: deal only with fundamental, systemically important cases.
● Individual Justice model: remain open to all individual victims.
Case example: Burmich v. Ukraine — bundling of similar cases; controversial since it limits the right
to individual application.
3. Complexity and Legitimacy of the Court
Increasing complexity:
● Netherlands & UK v. Russia — judgment of over 500 pages.
Controversial cases:
● Lautsi v. Italy (crucifix in schools) → religious sensitivity.
● Ireland (abortion laws).
● Russia (conflict with “traditional values”).
● The margin of appreciation doctrine helps balance national discretion and Strasbourg’s
supervision.
Debate on legitimacy:
● Realists: the Court should be pragmatic.
● Idealists: the Court must fully protect rights, regardless of political backlash.
2
, Withdrawal of jurisdiction:
● Legally possible, but politically very sensitive.
4. The European Union and the Council of Europe
Context:
● All EU Member States are parties to the European Convention on Human Rights (ECHR).
● The EU itself is not a High Contracting Party.
Problem:
● Possible conflicts between obligations under EU law and the Convention.
● No direct Strasbourg oversight of EU institutions.
Case: Bosphorus Airways v. Ireland (2005)
● Turkish airline’s aircraft detained under EU sanctions.
● Ireland claimed it was merely applying EU law.
● Strasbourg Court: created the Bosphorus presumption — EU law is presumed to offer
equivalent human rights protection, unless there is a manifest deficiency.
Criticism:
● Presumption applies to EU law, but not to national law (e.g. German law).
● Conceptually inconsistent: the ECHR is based on individual assessment, not mutual trust
(unlike EU law).
Conclusion:
● Tension between individual rights protection (ECHR) and systemic trust (EU).
● The EU’s accession to the ECHR remains politically and legally unlikely.
5. State Obligations under the Convention
3
