European System of HR Protection
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 2 October 2023

ECtHR
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Bringing a case to ECtHR
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Bringing a case to ECtHR
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Bringing a case to ECtHR
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ECtHR most important issues
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•Armed conflicts
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•Damages
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•Judicial Independence
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Proportionality test
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•Relative rights – any limitation to the right must be
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•Prescribed by the Law
•Necessary in democratic society
•Pursuing legitimate aim
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•Proportionality means that the interference must be no more than is absolutely necessary to
achieve one of the aims in the Convention
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Proportionality test
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Proportionality test
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Proportionality test
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ECtHR
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ECtHR
2021
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ECtHR
2022
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ECtHR 2022
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ECtHR 2022
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ECtHR 2022
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ECtHR 2022
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ECtHR key dates:
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•5 May 1949 - Creation of the Council of Europe
•4 November 1950 - Adoption of the Convention
•3 September 1953 - Convention enters into force
•21 January 1959 - First members of the Court elected
•23-28 February 1959 - Court’s first session
•18 September 1959 - Court adopts its Rules of Court
•14 November 1960 - Lawless v Ireland
•1 November 1998 - Protocol 11 in force -> The New Court
•1 June 2010 - Protocol 14 enters into force
•1 August 2018 - Protocol 16
•16 March 2022 - Russia ceases to be a member state of the CoE

ECtHR key dates:
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Current issues
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•3 crises negatively impacting the ECtHR’s legitimacy
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•Backlog (victim of its own success)
•Non-implementation
•Populist challenge to ECtHR
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(Populist) challenge to ECtHR
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•Non-majoritarian difficulty squared
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•Bickel: counter-majoritarian difficulty of constitutional review
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•Waldron: institutions must respect the fact of deep conflict among citizens on substantive issues
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•only unconstrained majority rule among elected parliamentarians treats all citizens as political
equals. Human rights constraints based on judicial review of legislation, on the other hand,
violate citizens’ equal dignity
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• “it is where responsible representatives of the people engage in what they would probably
describe as the self-government of the society.”
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•Any constraint of the legislator = x self-government
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(Populist) challenge to ECtHR
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•5 Objections towards constraints on legislator:
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1.Power of judges cannot be more than power of citizens;
2.Skewed outcomes;
3.Role of state (Bellamy: too much focus on negative social and political rights);
4.Mistaken conception of the person (democracy does not endanger individual, tyranny of majority is
limited by a sense of justice);
5.Damage to public political culture.
Bellamy: political institutions should allow perpetual contestation about interests, rights,
policies
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(Populist) challenge to ECtHR
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•ECtHR’s response
•Margin of appreciation
•Principle of subsidiarity
•Weak review
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(Populist) challenge to ECtHR
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•ECtHR’s response
•Margin of appreciation
•Principle of subsidiarity
•Weak review
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•A. Follesdal:
•Liberal contractualism: social institutions must satisfy principles of legitimacy;
•Democratic rule with constraints on legislatures may provide important assurance why citizens
should trust institutions
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•The least dangerous branch (risk of domination is small)
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•ECtHR does not replace political, democratic domestic contestation
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•BUT: the real challenges
•Quality of judicial deliberation
•Risk of unaccountable judges
•Social legitimacy
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Backlash against international HR courts
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•Resistance to ICs
•Who?
•Why?
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• pushback
• backlash
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•UK confusion
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DH vs Czech Republic
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DH vs Czech Republic
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