Some Reflections on the Legitimacy

of the Strasbourg Judge

Georges Ravarani

Judges may spend their professional lives conscientiously, haunted by doubt about
their decisions, without being led to wonder why litigants would come to somebody
they do not know but are willing to trust and whose decisions they are prepared to
accept. This question appears both fundamental and unsettling.
In the past, the answer to such a question was religious and simple: justice ema-
nated from God; it was exercised on earth by the King who delegated it to clerics.1
Even today, there may be ready answers to this question, proposed by judges
who are placed high in the judicial hierarchy and who can look back on a career of
40 years in office:
We need (…) thorough judges, unswayed by fashion, knowing the (professional) milieu,
steadfast and quiet in their approach, concerned for the public good, and, in the end, not too
concerned about a theoretical justification of their legitimacy.2

If such comfort can accompany national judges throughout their careers, the cor-
responding ease of mind will certainly stop at national borders. International judges,
more particularly judges of the European Court of Human Rights (“ECtHR”) in
Strasbourg, will, unless they are unshakeable or blind, have to face not only
criticisms of how they render justice, but more deeply, the questioning of the very
office they hold.

Judge, European Court of Human Rights.

I would like to thank my intern Anna-Lisa Jepsen for her assistance.
1
… to whom, as a sign of the mission with which he invested them, he handed over his robe. The
togas worn by the judges are a vestige of those times; Garapon (1997), p. 79 et seq.
2
Thuière (2004), p. 116.
G. Ravarani (*)
European Court of Human Rights, Strasbourg, France

© Springer Nature Switzerland AG 2019 125

G. Selvik et al. (eds.), The Art of Judicial Reasoning,
https://doi.org/10.1007/978-3-030-02553-3_10
126 G. Ravarani

The legitimacy of the European judge3 has become the subject of a recurring
political debate.4 It is because of a perceived lack of legitimacy that some politicians
and governments have advocated leaving the European Convention on Human
Rights (“ECHR”), repatriating decision-making power and getting rid of a court
which subjects their State to international scrutiny in relation to their respect for
human rights.5 As soon as a – moreover multilateral – international treaty is in place
it has been said that “it is largely withdrawn from the grasp of its individual makers.
This profoundly changes the relationship between law and politics. By agreeing to
an international treaty, the parliamentary majority of the moment cements its posi-
tion and puts it beyond the reach of any later majority”.6 If one accepts this logic,
salvation may seem to lie in a re-transfer of the normative and control competencies
to national authorities.7 One only has to look at what is going on in the European
Union, where bitter trench warfare is being waged in order to stop more ground
being ceded in matters of Union competence, and where considerable efforts are
being made to recover national sovereignty.8
The most radical and, at the same time, the most intellectually honest solution
would consist of an exit from the Convention system and the compulsory jurisdic-
tion of the Court, which is what some advocate.9 A less radical approach could
consist of remaining in that system while giving the last word to national

3
In the following, “European judge” exclusively designates the judge of the ECtHR and not of the
Court of Justice of the European Union (“CJEU”).
4
Madsen (2016), p. 174: “Although bashing the ECtHR is not new, the generalization of the dis-
course across Europe and its application to very different human rights situations is quite novel”.
5
What a contrast to some passages of the Preamble to the Convention: “[…] common understand-
ing and observance of the Human Rights […]”; “[…]common heritage of political traditions, ide-
als, freedom and the rule of law[…]”; “[…]collective enforcement […]”.
6
von Bogdandy and Venzke (2012), pp. 21, 22. See also Bellamy (2014), p. 1035, who reflects on
the feasibility of a system where a mistaken judgment by an international court would be over-
turned by a consensus among the representatives of the democratic governments. Before Protocol
no. 11, which established the permanent jurisdiction of the Court, entered into force, Article 46 §
2 of the Convention enabled the member States to recognise its jurisdiction for a limited period of
time only.
7
It is not as if the Court’s authority had always been uncontested and the challenges to its authority
recent. See Madsen (2016), who shows that in the early days of the Convention, the big European
States were reluctant to accept its jurisdiction and that its first judgments were not easily accepted.
8
If the CJEU faces less criticism than the Strasbourg Court, it may be mainly because it interprets
EU law and only indirectly interferes in national legislation. Another factor may be that EU law is
first and foremost a technical, economic law that does not include societal choices. This is already
changing with the CJEU’s jurisdiction under the Charter of Fundamental Rights. Most importantly,
while the main task of the CJEU is to assist the national courts in their work by providing an
abstract answer to the questions referred to it for preliminary rulings, the Strasbourg Court exerts
a real ex-post control over decisions made by national courts and sometimes directly contradicts
them. This is something much less easy to accept. It is not uninteresting to note that those States
which have the greatest difficulties in playing the game of the European Union, whether they are
reluctant to enter or are about to leave, are also highly critical of Strasbourg.
9
Malcolm (2017), p. 143. See also, for a description of the political reactions to some politically
sensitive cases, Madsen (2016), p. 170.
Some Reflections on the Legitimacy of the Strasbourg Judge 127

­parliaments10 in controversial matters. Some suggest a solemn declaration of strong

disagreement by national parliaments followed by a “dynamic” interpretation of
Convention provisions by the parliaments themselves. In the same vein, some
Member States openly disobey decisions with which they do not agree.11 The prob-
lem with such solutions is obvious: the European judge would only have an advi-
sory function and the national parliaments would have the real and ultimate power
of decision12:
Unless we can be sure that infallibly wise judges can solve all problems involving funda-
mental values in an objectively correct way, we should do well to maintain some residual
respect for democratic politics. If certainty is not to be attained in these matters, democratic
debate and democratic decision-making may possibly supply us with the next best thing:
legitimacy.13

On the other hand, unless a system based on a “concentration of powers” (confu-

sion des pouvoirs) is introduced, as far as the courts are concerned, the problem is
exactly the same: it is the task of the courts to interpret the laws, if necessary in a
manner different from their reading by the legislator. The whole debate then takes
place with reference to primacy in relation to the safeguarding of human rights.
Who has the legitimacy to have the ‘last word’ – parliament or the judges?14 It
seems as if ultimately, the legitimacy discussion is more about the role and position
of the judiciary in general in matters relating to the safeguarding of human rights
than about the fact that this control is attributed to an international court:
When a human rights regime is seen, decade after decade, to draw areas of decision-making
away from the democratic legislatures and make them the preserve of the judges – espe-
cially when those judges are operating with an unstable mix of partly subjective principles
and criteria – there must be serious cause for concern. To undermine democracy is, in a
particular way, to undermine the very system of legitimate rule which human rights are
intended to preserve.15

The ease with which the concept of legitimacy is extensively used does not
reflect the complexity of this multi-faceted notion.
According to a dictionary of legal terms, legitimacy is the “conformity of an
institution to a higher legal or ethical standard, perceived as fundamental by the
community, which makes the authority of that institution morally and politically

10
…or constitutional courts, see the Russian example.
11
Cf. Donald and Leach (2016), p. 144. One has only to mention the problem of prisoners’ voting
rights in the United Kingdom to measure the reality and relevance of this attitude. For a general
picture of the increasing non-compliance with the Court’s judgments, Madsen (2016), p. 173.
12
This is in open contradiction to Art. 46, § 1 of the Convention, which obliges States to abide by
the judgments of the Court.
13
Malcolm (2017), p. 21.
14
Much depends on traditions: in the United Kingdom, for example, it is for parliament to have the
last word, whereas in Germany, which has a strong and respected constitutional jurisdiction, the
final say rests with the Federal Constitutional Court.
15
Malcolm (2017), pp. 123–124.
128 G. Ravarani

acceptable”.16 This rather complicated definition has the merit, however, of high-
lighting two aspects of legitimacy: on the one hand the “downward legitimacy”, that
emanates from a higher authority, at the top level of the political structure, and, on
the other hand, the “upward legitimacy”, the acceptance/adherence by the commu-
nity.17 One must, therefore, at least distinguish between legal legitimacy and what
one could call legitimacy by assent.18 There are many terms to express these reali-
ties; one can also distinguish between constitutive legitimacy and performance19
or normative legitimacy20 or, alternatively, between original and utilitarian
legitimacy.21
The distinctions can be refined: “constitutive legitimacy” refers, first of all, to the
legality, the legal framework in which the judge exercises his power. The position
that the judge occupies is designated by law. He or she is appointed by the authori-
ties which are endowed with this mission by virtue of the underlying constitutional
or constitutive rules that confer this power. Judges undoubtedly exercise a legal
power, in most cases for life. They have to meet the litigants’ expectations of
justice.
At the level of legitimacy by assent, litigants and other democratic powers evalu-
ate the actions of the judge in terms of the expectations placed on them.22 This
expectation has two aspects, one regarding the content of the decisions and the other
regarding the means by which they are achieved. Do the judges’ decisions lead to
the general feeling that they are rendering just decisions, and does the administra-
tion of justice work effectively?
Some identify a third aspect of legitimacy by looking at its social dimension: in
contrast to the persons described above, who are actually dealing with justice (pro-
fessionals such as judges and lawyers; those holding political power, or litigants, in
the narrow sense of those involved in a trial) and who may or may not adhere to
justice from personal experience, there are also those who have never actually had
dealings with the legal system, who have never seen a court from the inside but do
not hesitate to have a clear opinion on the legitimacy of the institution, either by
personal conviction or influenced by different actors, political parties, the media,
etc. This social dimension of legitimacy is the most difficult to comprehend.23 While
popular support is essential to the legitimacy of an institution, it is also the most
volatile and the most susceptible to manipulation including, frankly-speaking,
manipulation by populists.

16
Cornu (2016).
17
Fontaneau (2004), p. 205.
18
In French, a language I am more familiar with, I would have used the word “adhésion”.
19
Çalı et al. (2011).
20
Donald and Leach (2016).
21
Bentham (1948).
22
Different concepts can be used to convey the underlying idea that the legitimacy by assent has a
dynamic, normative (Donald and Leach (2016), p. 119) or performance (Çalı et al. (2011))
dimension.
23
Donald and Leach (2016), p. 120.
Some Reflections on the Legitimacy of the Strasbourg Judge 129

It would be illusory to try to draw a sharp line between the different legitimacies –
or rather the different aspects of the legitimacy – as outlined above. They are com-
plementary and overlapping. Moreover, they are reflected in the individual judge as
well as in the judicial power, both national and international. There seems to be no
difference in essence between the legitimacy of the national and the international
judge, but the questioning of the latter is much stronger and broader. As the present
contribution is focused more specifically on the Strasbourg institution,24 it appears
useful, if one wants to examine the causes and possible remedies of the challenge of
legitimacy from which the Strasbourg judge seems to be suffering, to first look at
the legitimacy of the individual judge (Sect. 1), and subsequently at factors that are
relevant for the Court’s legitimacy more specifically (Sect. 2).25

1 The Individual Aspect: The Judge

At the individual level, legitimacy issues may arise not only when judges begin their
careers (Sect. 1.1), but also during their time in office where they have to strictly
preserve their independence and impartiality (Sect. 1.2).

1.1 Legitimacy Issues at the Moment of the Judge’s

Appointment

Even more than the national judge, the European judge is criticised for lacking
democratic legitimacy.26 The criticisms are multiple and most frequently revolve
around the “democratic deficit.”27 This shows that some authors consider only
elected parliaments to be legitimate in their power.28 Oddly enough, the Strasbourg
judges are elected (Sect. 1.1.1). Moreover, their election is conditional on the
requirement that they are of high moral character and possess the necessary qualifi-
cations (Sect. 1.1.2).

24
Whether the “Court” is to be considered an institution rather than a community of individual
judges seems to be a matter of cultural perspective, see Garapon et al. (2008), p. 2.
25
This is – of course – the program of a whole study that should be the subject of a book. The pres-
ent contribution, much more modest, will confine itself to delivering some personal opinions and
ideas. It can in no way engage the Court.
26
The concept is extremely vague and difficult to define. It can be authoritarian and is focused more
on equality than on liberty; see Ory (2017), pp. 36 and 59.
27
Bellamy (2014), p. 1020; Donald and Leach (2016), p. 113.
28
It has been stated that “properly speaking, democracy is a constitutional mechanism for arriving
at decisions for which there is a popular mandate. But the Convention and the Strasbourg Court use
the word in a completely different sense, as a generalised term of approval for a set of legal values
which may or may not correspond to those which a democracy would in fact choose for itself”
(Malcolm (2017), p. 44).
130 G. Ravarani

1.1.1 Election

The European Court of Human Rights has been established by a multilateral inter-
national treaty29 and its judges are elected by the Parliamentary Assembly of the
Council of Europe.30 This should a priori suffice to give them, during their term of
office, sufficient legitimacy.31
It may however be useful, in this context, to ask the question whether an election
really is the only way to confer democratic legitimacy.
Leaving aside the problem of international judges, there are national systems
where the election of judges is a reality. The system is most pronounced in the
United States where, in about half of the States, judges are elected and, in a number
of them, directly by the citizens. A trial judge from Pennsylvania described the
problems he faced: elections are held there every 10 years. Candidates have to cam-
paign, to find a party that supports the campaign, raise money. The biggest donors
in this type of elections are lawyers themselves who expect subsequent returns.
Furthermore, when campaigning the judges must take a stand on issues of interest
to voters. Are they for or against the death penalty, abortion, etc.32 If an elected
judge subsequently departs from the positions expressed, his or her legitimacy may
suffer.
Even for politicians who are in office following a democratic election, legitimacy
is a rare asset, a volatile perfume: what is the legitimacy of the one who, trium-
phantly elected for 5 years, finds himself a year later at the lowest position in the
polls? The problem therefore does not seem to be that of legitimacy at the time of
the investiture, but the difficulty of preserving it throughout the mandate. Here there
is a singular resemblance between all those who exercise a public mandate, whether
elective or otherwise: to keep, throughout the exercise of the mandate, the adher-
ence of citizens. Of course, were he or she to seek legitimacy by assent day after
day, no politician could any longer afford to take an unpopular measure, and no
judge could hand down a judgment that displeases.
Others would like to justify the legitimacy of the judge precisely in opposition to
political power and invite people “to abandon the old prejudices limiting its
legitimacy”.33 They consider the judge as a bulwark against invasive political power
which – even if the latter is democratically legitimate – by such means as interpreta-
tive and consequently retroactive laws or by amnesties, constantly tries to mistreat
the rule of law. Even without an elective mandate, the judge is then the protector of
the individual rights of citizens, a kind of counter-power, the “sole interlocutor

29
Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on
4 November 1950.
30
ECHR, Art. 22.—As far as the role of the Parliamentary Assembly is concerned, see Donald and
Leach (2016), p. 126.
31
Çalı et al. (2011), p. 4, sub 4.1.A.
32
Glazer (2003), p. 53 et seq.
33
Pescatore (2000), p. 345.
Some Reflections on the Legitimacy of the Strasbourg Judge 131

i­ ndependent of political power”, exercising an “irreplaceable function in the defence

of democratic values”.34
It has indeed been shown that the verdict of the ballot box is not the only standard
of legitimacy. A power is considered fully democratic only if it is subjected to con-
current and complementary tests of the control and validation of the majority
expression. One of the main tests resides in the judicial control of the activity of the
legislator. The judges benefit from the legitimacy of impartiality, which arises from
the rules laid down by the constitution and organic laws.35
It is certainly not an exaggeration to talk, in the context of the absolute sover-
eignty of an elected parliament, of the people or of the nation, depending on the
constitutional system, of the “tyranny of the majority”36 and, moreover, of the
majority of the moment.37 That shouldn’t be misunderstood. The question is not
about the legitimacy of a parliament that can, in principle, by a majority vote,
change any law and even change a certain jurisprudential interpretation of an exist-
ing law. But are the powers of parliament boundless? In a regime of separation of
powers, the legislature is only one among the constitutional powers and it is also
subject to the rule of law. It must respect the constitution and international treaties.
If the majority of the moment, for example, introduces a law that establishes as a
general rule and without exception expropriation without compensation, something
which the constitution prohibits, this law would most probably be annulled by the
constitutional judge and, if that State were a member of the Council of Europe, it
would have violated Article 1 of Protocol no. 1 to the ECHR.38 If this example
seems too farfetched, one could instead refer to the laws often enacted in a hurry and
after public pressure following a terrorist attack.
Democracy – at least liberal democracy – is more than simply a majority vote.
There must also be a protector of the minority of the moment. This has nothing to do
with minority groups, (ethnic, religious, etc.), but it relates to those who are not
represented by the majority in parliament. The problem is not peculiar to interna-
tional courts; it is posed in similar terms – in any case concerning the limitation of
the “sovereignty” of the parliament – for national powers other than parliament, in
particular constitutional courts. Democracy is also about checks and balances.
The fundamental error seems to lie in the juxtaposition or even opposition of
parliamentarian and judicial legitimacies. They are obviously not at the same level

34
Pescatore (2000), p. 348.
35
See, Rosanvallon (2008).
36
Cf. Donald and Leach (2016), p. 132.
37
…which can even trigger a change of a Constitution. In Switzerland, by a referendum of 9
February 2014 where the “yes” obtained a 50.3% majority, the federal authorities were obliged to
enact a constitutional law that limits “mass immigration”. What would happen if 0.4% of the popu-
lation changed their minds? The Swiss Constitution would have to be changed again…
38
Expropriation without compensation is not per se in violation of the Convention, but is a strong
indicator of the disparate allocation of burdens under Article 1 of Protocol 1; see, among many
others, Sporrong and Lönnroth v. Sweden [GC] 23 September 1982, Series A No. 52, and Scordino
v. Italy (n° 1) [GC], application no. 36813/97, ECHR 2006-V.
132 G. Ravarani

and pursue different logics. They are simply complementary and should not be
weighed against each other.39

1.1.2 Qualifications

It has to be admitted that some, even though they accept the jurisdiction of the
ECtHR, have doubts not only about the adequacy of the appointment system for
Strasbourg judges but, above all, about the qualifications of those appointed. A
study conducted in 2010 among politicians, judges and lawyers on the legitimacy of
the ECtHR shows that national judges in particular are very sceptical in this
respect.40 All Strasbourg judges should be selected according to a rigorous process
ensuring their legal skills and moral quality.41 An election by the Parliamentary
Assembly, if it confers a certain “democratic” legitimacy, does not, however, guar-
antee these qualities. The Parliamentary Assembly is a political body that is not a
priori equipped for selecting judges on the basis of their scientific skills. It is true
that there are some safeguards – at the national42 and European43 level – but the
members of the Parliamentary Assembly are totally free to choose “their” candidate
among the three who have been selected in preliminary proceedings.
Beyond the imponderables of the selection process, candidates and potential
judges should themselves be sure to have the necessary scientific baggage, judg-
ment technique and ability to work in a team before applying in Strasbourg.

39
Unfortunately, some statements by the Court could be understood as if the Court itself also
weighed the two legitimacies against each other. See e.g. Draon v. France [GC], application no.
1513/03, ECHR 2006-IX where it states “The national authorities have direct democratic legitima-
tion and are, as the Court has held on many occasions, in principle better placed than an interna-
tional court to evaluate local needs and conditions […] In matters of general policy, on which
opinions within a democratic society may reasonably differ widely, the role of the domestic policy-
maker should be given special weight” (§ 108). Such a statement explains and justifies the margin
of appreciation mechanism (see below). However, it seems excessive to suggest that judges would
not enjoy “democratic” legitimacy.
40
Çalı et al. (2011), p. 18, sub 6.1.A.
41
ECHR, Art. 21, § 1: The judges shall be of high moral character and must either possess the
qualifications required for appointment to high judicial office or be jurisconsults of recognised
competence.
42
When selecting their three candidates, States should ensure that their national procedure is fair
and transparent, for example by issuing public and open calls for candidates. All candidates must
have appropriate legal qualifications and experience and must have an active knowledge of either
English or French and at least a passive knowledge of the other language. To help ensure candi-
dates are fully qualified, an international panel of Council of Europe experts offers governments
confidential advice on potential candidates before the final list of three is sent to the Assembly.
43
Once the Assembly has received the list of candidates, a special committee of parliamentarians
with legal experience interviews each of the three in person and scrutinises their CVs, in a stan-
dardised format, before recommending whether or not to accept the list – in other words, whether
it believes all three candidates are sufficiently well qualified to do the job. If so, it indicates which
candidates it believes are the strongest. If not, States are asked to submit a fresh list. The
Parliamentary Assembly is not bound by the recommendation of the committee.
Some Reflections on the Legitimacy of the Strasbourg Judge 133

1.2 Legitimacy Issues During the Exercise of Office

The judge’s legitimacy during the exercise of his or her office is largely conditioned
on certain essential qualities,44 first independence and impartiality, which are closely
interrelated (Sect. 1.2.1), and secondly, the judge’s professionalism when examin-
ing and judging a case (Sect. 1.2.2).

1.2.1 Independence and Impartiality

A major problem that directly affects the position and indirectly the legitimacy of
the judge is that of his or her independence. How could judges at the mercy of
another power, international or national, and unable to make their decisions in com-
plete independence, be legitimate in the eyes of parties? While independence is an
indispensable asset at the national level, it is no less so at the European level. The
major additional issue at this level is the independence of the European judge from
the State to which he or she belongs, both during the term of office and afterwards.
He or she must be free from any attempted influence by the national authorities and
should have no fear of reprisals of any kind whatsoever when taking part in deci-
sions which displease the latter. A step towards greater independence was achieved
with the removal of the possibility of re-election of judges accompanied by an
extension of their single mandate to 9 years. A 9-year term may seem long. However,
it does not prevent a significant turnover among judges: on average (47:9) each year
five judges come to the end of their mandate and are to be replaced by five new
judges. This may of course pose a challenge to the continuity and coherence of the
case-law, which in turn may impact on the judges’ legitimacy.
Unfortunately, there have been and there are extreme cases where judges appear
not to be welcome when returning to their country during their term of office or on
the expiry of their mandate. More subtly, some see a brake on their career when they
return. One of the possible means to ensure genuine independence, both during and
after the term of their office, would be the assurance, legally provided for, of being
able to return to their original position at the end of the term. This would be useful
for those enjoying a status (judges, professors) but not for those working in the pri-
vate sector, mainly practising lawyers.45 But one only has to look at the current
composition of the Court to measure how many judges would benefit from such a
proposal. It is true that such a system would imply, for certain States, the modifica-
tion of their constitution, but constitutions have already been modified for lesser
reasons.
That being said, it should be stressed that independence and impartiality are
closely interrelated as the former is not a goal in itself but merely a condition for
guaranteeing the latter.

44
For an exhaustive catalogue of the virtues of the judge, see Garapon et al. (2008).
45
Çalı et al. (2011), p. 21 s., sub 6.1.C.
134 G. Ravarani

In countless judgments, the Court has established a very comprehensive cata-

logue of what is required to ensure the fairness of proceedings and in relation to one
of its core aspects, the objective and subjective impartiality of the national judge.46
Does the obligation of impartiality of the European judge differ in any way from
that of the national judge?
Maybe not in principle, but it presents itself in a different form. The fact that only
States are respondents in cases before the ECtHR certainly plays a role. Moreover,
the Convention provides for the national judge participating in the examination of
cases concerning “his” or “her” country.47 The compulsory presence of the national
judge in the Chamber or the Grand Chamber under the Convention is certainly
intended to avoid judgments which are “disconnected” from national legal systems.
However, it may trigger other problems relating to the necessary distance from
national institutions and even relating to impartiality, at least of the objective kind.
It is also undeniable that in the different member States of the Council of Europe
human rights standards are not uniform. It is understandable that authorities from
countries that have joined the Council of Europe more recently show some scepti-
cism towards judges originating from founding countries and that, conversely, the
authorities of those latter countries show some distrust of judges coming from more
recent democracies. It cannot be ignored that, in an institution comprising 47 mem-
ber States, each with its own legal and political history, the attitudes of national
judges and European judges towards the institutions of their respective countries
may be very disparate, some having a priori confidence in their institutions and oth-
ers a correlative mistrust.48 This could become problematic if judges from countries
in which there is “primary” trust in their respective domestic institutions, called
upon to assess the situation of a country where such trust does not exist, would do
so with reference to the standards they are familiar with and if, conversely, judges
from countries where there is a deep scepticism towards institutions, called to
appreciate the functioning of the institutions of a country where such confidence
reigns, were to apply their usual standards.
Concerning the States in respect of which they have been elected, judges must
furthermore resist a dual temptation, namely, on the one hand, that of trying to “pro-
tect” their State and avoid at all costs finding a violation, and on the other, that of
wanting to “lecture” or to “educate” their national authorities.
In the end, however, the requirements with regard to the European judge do not
differ fundamentally from those to which the national judge is subject: he or she
must preserve “a fair distance” (une juste distance) from the case in hand.49 Such a

46
See the Court’s guides on fair trial (civil limb and criminal limb), published on the Court’s web-
site and online available at http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf and http://
www.echr.coe.int/Documents/Guide_Art_6_criminal_ENG.pdf.
47
Article 26 § 4.
48
Cf. Nussberger (2018).
49
Commaret (1998), p. 262. The word “distance” should not be misunderstood. It does not mean
that the judge should not be interested in the case, quite to the contrary. If he or she should not take
the matter at stake “personally” and remain autonomous, without any pressure and without bias, he
Some Reflections on the Legitimacy of the Strasbourg Judge 135

distance is even more difficult to maintain where the national judge, who has opined
and voted in the Chamber, is called to sit a second time, in the same case, in the
Grand Chamber. While the presence of the national judge is indispensable because
of his or her knowledge of the legal system of the State in question, the authors of
the Convention could have established a system in which, when the national judge
sits in cases concerning “his” or “her” country, he or she would have only a consul-
tative vote, at least in the Grand Chamber. Given, however, that the presence of the
national judge is provided for in the Convention itself, no change of the relevant
provisions can be realistically envisaged.50

1.2.2 Professionalism

The legitimacy of the Strasbourg judges is dependent on their day to day work. It is
through showing professionalism, reasonableness, through giving acceptable and
accepted judgments that they deserve legitimacy, on a daily but never acquired
basis. In order to maintain their legitimacy, they must deliver judgments of high
quality based on rigorous reasoning.
Judicial power will not be accepted if it appears arbitrary. Judges will appear
arbitrary – whatever the mode of their appointment, their qualifications a priori or
their position in the hierarchy – if they do not try to comply with the obligation to
thoroughly justify their decisions and underpin them with rigorous reasoning. This
applies to the individual judge as much as to the court they belong to if judgments
are given by a panel. It is the judges’ individual duty to cooperate in order to col-
lectively provide convincing legal reasoning.51 The litigant – and courts called upon
to apply case-law – have an unconditional right to a judgment that clarifies the path

or she should at the same time feel concerned (see Garapon et al. (2008), who identify “les vertus
de distance (impartialité, renoncement, indépendance, désintéressement, effacement)”, op. cit.,
p. 20).
50
At the level of the Grand Chamber, where the national judge sits a second time, the problem
could also be avoided if the Court had two judges per country, in which case in the Grand Chamber,
it would be the national judge who did not sit at Chamber level that could sit. Given current politi-
cal and budget difficulties, it is hardly realistic to formulate such an idea… Beyond this wishful
thinking, it should be noted that there are examples where a national judge changed his mind when
sitting in the Grand Chamber (see e.g. the concurring opinion of Judge Bratza in Al-Khawaka and
Tahery v. United Kingdom [GC] (application nos. 26766/05 and 22228/06, ECHR 2011-VI) high-
lighting the judicial dialogue with the national court that had taken place since the judgment of the
Chamber).
51
Of course, it depends on the various judicial traditions if one considers a judgment as a collective
product or the sum of individual opinions. There is every reason not to exclude from this obligation
the authors of dissenting opinions.
136 G. Ravarani

of the judges’ thinking.52 It is in this sense that judges exercise a duty as much as a
power. Their legitimacy, the foundation of their status, comes at this price.53
Rigorous reasoning presupposes an accurate knowledge of fact and law. For the
European judge, these requirements have a particular connotation.
The knowledge of the law is not limited to that of the Convention and the case-­
law of the Court, but extends to the national – and potentially international – law at
issue in a given case. It is precisely this requirement which makes it indispensable
for the judge elected in respect of a State to be present in the composition of the
Court called upon to judge an application against that State in Chamber and Grand
Chamber formations.54
Knowledge of the facts of the case is as indispensable as that of the applicable
law. Here, the judge must, so to speak, square the circle. He or she is – also – judge
of the facts even if he or she has only very limited means to establish them. He or
she must, however – and this may seem paradoxical at first sight – not be over-­
zealous in trying to establish the facts independently and at times in contradiction
with the facts as found by the national courts. There remains, of course, the case
where a national court grossly distorts the facts but, in general, the Strasbourg Court
is not a court of first or of fourth instance.
The fact that control of respect for human rights by national authorities is exer-
cised by non-national judges certainly does not facilitate matters. There is consider-
able mistrust of this aspect of the Convention system, especially as control of the
absolute respect for human rights in a given country implies a thorough knowledge of
national institutions, which are often disparate and complex. If the distinctive feature
of the work of Strasbourg judges lies in the fact that they are called upon to judge situ-
ations in countries of which they are not nationals, this is exacerbated by the fact that
they exclusively have to deal with States as defendants and not individuals. It is true
that every constitutional judge is called upon to deal with State organs and that even
ordinary judges are in charge of cases against the State to which they belong (e.g. in
matters of State liability or in administrative disputes). However, the fact that it is a
non-national judge who judges the respondent State may not be that easy to accept,
especially at a time when nationalism and Euroscepticism are getting stronger and
when populists see the solution in the undiluted sovereignty of the national State.
If the legal status and performance of individual judges are central to the assess-
ment of their legitimacy, the same is true, more or less, with domestic judges who
have to show the same qualities to enjoy such legitimacy. It cannot be overlooked,
however, that the Strasbourg judge is member of a European Court that has a n­ umber
of distinctive features, each of them having an influence, not so much on the legiti-
macy of the individual judge but on that of the Court.

52
The bar is generally favourable to this request: “What the judges do not really seem to understand
is that any judicial decision, whatever it is, must be well motivated to be understood and conse-
quently accepted by the litigant”, words attributed to the president of the bar Canellas by Jean-
Jacques Barbiéri (Barbiéri (2004), p. 82). In the German language, there is a word that apparently
has no equivalent in English or in French: the reasoning of the judge must be “nachvollziehbar”.
53
Théron (2004), p. 100.
54
Art. 26, §§ 4 and 5 ECHR.
Some Reflections on the Legitimacy of the Strasbourg Judge 137

2 The Collective Aspect: The Court

Entrusted with the duty to safeguard human rights and fundamental freedoms at the
European level, the Court faces specific challenges that have a direct and weighty influ-
ence on its legitimacy, in its institutional and “by adhesion” aspects considered together.
The far-reaching mission of the Court (Sect. 2.1) imposes specific duties (Sect. 2.2).

2.1 A Far-Reaching Mission

Whatever one might say, the Strasbourg Court is a driving force for the development
of the scope of human rights (Sect. 2.1.1).55 Given that its judgments enjoy a scope
that goes far beyond the individual case decided (Sect. 2.1.2), it has to handle the
development technique with care.

2.1.1 Developing the Human Rights

Does the Strasbourg Court have the legitimacy to develop human rights and funda-
mental freedoms? It emerges very clearly from the aforementioned study conducted
in 2010 on the perception of the ECtHR by politicians, judges and lawyers that they
do not consider legal or institutional legitimacy as an exclusive aspect of the legiti-
macy of the ECtHR. However they expect the Court to promote three substantial
values or to follow three logics:
1) A logic of enhancement of capacities and duties that belong primarily to the
domestic realm (i.e. supranational human rights courts help States better protect
human rights, better enforce democracy);
2) A logic of prevention of State failures, (i.e. supranational courts act as an exter-
nal corrective to domestic biases, protecting disempowered individuals before
the domestic polity);
3) A logic of harmonization of human rights standards, (i.e. forging common stan-
dards of human rights across countries through interpretative (non-coercive)
means ensures equality of application.56
Do European judges have the right to engage in such an exercise?57 In doing so,
do they encroach on the sovereignty of the member States of the Council of Europe?

55
It has been called the “de facto Supreme Court of human rights in Europe” by Mikael Rask
Madsen (Madsen (2016), p. 142).
56
Çalı et al. (2011), p. 8, sub 4.1.B.
57
While the Preamble of the Convention speaks of the maintenance as well as of the further realisa-
tion of human rights, there is no consensus on whether this is the task of the ECtHR or other bodies
of the Council of Europe. Article 19 of the Conventions provides: “To ensure the observance of the
138 G. Ravarani

Can they stand back and consider, by analogy with the words of a United States
Supreme Court Justice, that the Convention is “dead”?58 Does the Court, according
to Montesquieu’s theory which saw in the judge the “bouche de la loi” (mouthpiece
of the law),59 have to refer any question of interpretation of an unclear law to the
legislator? This idea has been largely abandoned, not only because it would hardly
be practicable with the well-known phenomenon of legislative inflation, but also
because legislators very often voluntarily unload onto the courts the interpretation
of concepts that they intentionally formulate in a vague way. The Convention text is
a prominent example of this method.60 In fact, law-making is an inevitable aspect of
judicial interpretation. It is an intrinsic element of adjudication and it is not as such
ultra vires.61

engagements undertaken by the High Contracting Parties in the Convention and the Protocols
thereto, there shall be set up a European Court of Human Rights[…]”. The Court has always under-
stood the distinctive nature of the Convention as a human-rights treaty to compel a flexible and
evolutionary teleological interpretation of its open-textured terms if the Convention is not to
become progressively ineffective with time. It sees itself endowed with a duty to “develop” the
substance of the rights themselves. Some doubt that this is the Court’s task: “The ‘développement’,
or the ‘further realisation’, of human rights was an additional task which the Council of Europe set
for itself – not for the Court as such. The task of the Court was to implement the actual rights
defined in the Convention. In so doing, it was entitled to update the meanings of particular terms
when those meanings had clearly changed over time. The ‘object and purpose’ of the Convention
authorised that much evolutive interpretation – but, it must be emphasised, no more than that.”
(Malcolm (2017), p. 75). However, even those who harshly criticize the democratic legitimation of
judges to further develop human rights provisions opine that to be followed and identified with, the
law must also be, in certain crucial respects, “the peoples’ law’ rather than merely ‘lawyers’ law’.
As a result, the judiciary need to be in touch with the changing social circumstances or mores of
those whom these judgments affect if they are not to make arcane, arbitrary, or unreasonable
demands of citizens.” (Bellamy (2014), p. 1027. Of course, this mechanism is also criticised:
“There are, it seems, no clear principles behind the Court’s use of ‘consensus’. Sometimes a very
small majority suffices to establish it; sometimes a large one is declared insufficient. In some cases
a survey of the existing situation among the member States is used; in others, appeal is made to an
‘emerging consensus’; beyond that, the principle can sometimes be extended to, or overridden by,
an ‘international trend’, invoking conditions outside Europe, though on the basis of no statistical
survey at all. Usually the consensus is about legal conditions and policies; sometimes, when it suits
the Court, it can focus on scientific or philosophical issues instead. And the degree to which the
consensus affects the margin of appreciation is itself quite variable”, Malcolm (2017), p. 59).
58
See the speech delivered on 28 January 2013 by Justice Antonin Scalia of the U.S. Supreme
Court at Dallas-based Southern Methodist University, stating that the U.S. Constitution is “not a
living document” and that it is “dead, dead, dead”.
59
Montesquieu (1777): “The judges of the nation are only the mouth that speaks the words of the
law, inanimate beings, who cannot moderate either their strength or rigour”.
60
“It also seems likely that in several instances, governments have been happy to “outsource”
politically difficult problems to the Court in order to obtain an international judicial imprimatur for
unpopular legal or policy reforms. Furthermore, the Court may reasonably be said to have contrib-
uted to “unifying” CoE member states, and thus to the realization of the broader objectives of the
Council of Europe. […], thereby facilitating political and economic integration processes”, Shany
and Noam (2014).
61
von Bogdandy and Venzke (2012), p. 473. The German Federal Constitutional Court – whose
legitimacy is beyond doubt – confirms that judicial law-making is part of the competence of
Some Reflections on the Legitimacy of the Strasbourg Judge 139

Indeed, it does seem that the real added value of the European judge’s action in
the field of the protection of human rights, compared to that of the national judge, is
that he or she can render decisions which set standards in this respect with regard to
all Member States.62 Whatever else one may say,63 it seems obvious that his or her
legitimacy partly stems from this value or, more precisely, these added values:
First, there is value identified at the individual level where the ECtHR has an impact on the
individual. Second, there is the value at the global level where the ECtHR operates as a set-
ter of minimum standards or strives to achieve solutions to particular global problems.
Third, there is a value at the national level where the ECtHR has relevance for national law,
policy or practice or the operation of national institutions.64

The authors of the aforementioned study speak of “legality-plus” legitimacy.65

If one consequently wants to start a discussion on the legitimacy of European
judges insofar as they protect human rights, it is not a matter of discussing whether
they have the right to do so but only whether, in doing so, they fall below what is
expected of them in some cases or inflate protection in others. Either or both of
these attitudes are likely to erode their legitimacy.
The number of those who believe that European judges remain too timid when it
comes to the development of human rights is far from negligible. However, those
who believe that, on the contrary, they exceed their mission and stray into real judi-
cial activism are more virulent and audible.66 This is why the following paragraphs
seek to address the latter concerns. It should be noted that the “judicial activism” of
the Court, via the “living instrument” concept,67 is reflected not only in pushing the
limits of existing rights68 but also in the apparent discovery of “new rights” that are

supranational and international courts. It sees judicial law-making particularly warranted when it
makes programs concrete (in the sense that it implements the normative project of a treaty), when
it fills in legal gaps and when it solves contradictions. On the other hand, the said court considers
judicial law-making likely to be ultra vires when it goes against what is clearly stated in the text,
or when it creates new rights or obligations without sufficient justification in the relevant positive
law. Judicial law-making is illegal in particular, according to the German court, if a supranational
or international court lays new normative foundations or structurally alters the fundamental bal-
ance of power (von Bogdandy and Venzke (2012), p. 473 on a judgment by the German Federal
Constitutional Court of 6 July 2010, 2 BvR 2661/06).
62
See below, Sect. 2.2., The scope of the Court’s Judgments.
63
Amos (2017), p. 767, who is of the opinion that the question of the value of the ECtHR must be
distinguished from the question of its legitimacy.
64
Amos (2017), pp. 763–785. In this context, the impact of Protocol no. 16 to the Convention,
which endows the Court with a kind of “constitutional” role, should not be neglected.
65
Çalı et al. (2011).
66
Those who are hostile to the Court criticise it for interpreting the provisions of the Convention in
an over-extensive manner, the biggest culprit in this respect being Article 8.
67
It is interesting to note that the study on the acceptance of jurisdiction by legal professionals
underlines that the professionals do not really challenge this instrument, Çalı et al. (2011), p. 12,
sub 5.2.
68
For example, the development of notions of torture, inhuman treatment and degrading treatment
(Article 3) where the threshold for finding torture has been significantly reduced over the years and
some treatments that were previously not subjected to criticism are now considered degrading
140 G. Ravarani

not rooted in the Convention and which were not in the minds of its framers.69 In the
context of the extensive interpretation of the provisions of the Convention, the refer-
ence in numerous judgments and reliance on soft law has to be mentioned too.70 In
contrast, although often the subject of heavy criticism, the Court’s practice of con-
ferring an autonomous meaning on the provisions of the Convention which do not
necessarily correspond to the categories of national law appears to be vital for the
Convention. It would be too easy, for example, for a State to classify all sanctions as
administrative in order to immunise them from the guarantees of Article 6.
It is not the purpose of this paper to provide an inventory of extensive interpreta-
tions, nor to provide a critique nor an apology. The purpose is instead to address the
problem of extensive interpretation – assuming it exists – from the viewpoint of
legitimacy. The dilemma is obvious:
Mahoney’s insistence that there is a need to maintain a balance between activism and pas-
sivism in the system of the ECHR (…) appears to be completely justified when it comes to
maintaining the Court’s legitimacy at an appropriate level. However, the point there is that
limiting the judicial activism of the ECtHR could entail stagnation for the entire system.
The ECtHR was not established so that it could merely confirm the compliance of the mem-
ber States’ decisions. Therefore, the ECtHR faces a constant dilemma: the development and
protection of human rights law requires activist case law, yet excessive activism can under-
mine one of the greatest achievements of the ECHR system, namely its effectiveness.71

Is the solution not one of striking banality: judges, like everybody else, should be
and remain reasonable? Too much is always too much, too little too little.

2.1.2 The Scope of the Court’s Judgments

Strictly and technically speaking, a judgment of the Court is rendered inter partes
and it binds only them. The Convention does not confer an erga omnes effect on a
judgment. Article 46 § 1 of the Convention clearly provides that the High Contracting
parties undertake to abide by the final judgment of the Court “in any case to which
they are parties”.

treatments (see e.g. Bouyid v. Belgium [GC],28 September 2015, application no. 23380/09;
Kraulaidis v. Lithuania, 8 November 2016, application no. 76805/16).
69
Examples for Article 8: S. and Marper v. United Kingdom, 4 December 2008, application nos.
30562/04 and 30566/04, concerning the retention by the authorities of fingerprints and DNA sam-
ples taken from the applicants during criminal proceedings which did not result in their conviction;
K.U. v. Finland, 2 December 2008, application no. 2872/02, about the publication of an advertise-
ment of a sexual nature concerning a child on an Internet dating site; Fadeyeva v. Russia, 9 June
2005, application no. 55723/00, about environmental standards.
70
Soft law can certainly be cited to support certain binding provisions, but legitimacy problems
arise where European judges arise when they base a decision exclusively or mainly on such a non-
binding text, thus transforming soft law into hard law.
71
Wiśniewski (2016), pp. 103–110, citing Mahoney (1999), p. 78. See also Gomułowicz (2014),
p. 139: “The relationship between truth and justice is perhaps the most difficult problem relating
to the essence of judicial practice, and it is clear the this issue cannot be resolved without judicial
activism”.
Some Reflections on the Legitimacy of the Strasbourg Judge 141

However, even this technical aspect must be considered in relative terms. Firstly,
on the basis of Article 46 of the Convention, the Court sometimes issues recommen-
dations to a respondent State, indicating how the violation it has pronounced might
be remedied by changes to national legislation. Secondly, the last sentence of Article
37 paragraph 1 of the Convention provides, as an exception to striking out a case
where the applicant no longer intends to pursue the case, that the Court may never-
theless continue the examination of the application if respect for the human rights
guaranteed by the Convention and its protocols so requires. This provision allows
the Court to look at the interest of human rights beyond the individual case and to
make a judgment in the general interest, regardless of the individual case.72 Finally,
the pilot judgment procedure, approved by the Convention Member States, allows
the Court to rule by general disposition in cases of recurrent violations and systemic
deficiencies. If its judgment is given following an individual application, it has a
general scope that goes far beyond the individual case. The very fact that pilot judg-
ments are focused on identifying systemic malfunctioning in the domestic legal
order and on the indication of appropriate general remedial measures normatively
extends the binding effect of the Court’s judgments and changes their legal nature,
accentuating the Court’s constitutional function. Pilot judgments have individual
and general legal effects in the domestic legal order. They extend the individual
application procedure by introducing elements normally found in the judicial review
of legislation. The pilot judgment can, in the words of one commentator, be
considered:
an innovative strategy of imposing the Court’s judicature on the domestic legislative pro-
cess. The Court generalizes the legal arguments of its judgment beyond the individual case
by issuing a programmed lawmaking obligation to the domestic legislature. This judicial
lawmaking by requesting domestic legislation is a remarkable judicial strategy of compli-
ance or internalization, which is able to substitute the lack, in doctrinal terms, of direct
effect of the convention and the lack of erga omnes effect of the Court’s judgments in the
domestic legal system.73

A really thorny problem is the dichotomy between the individual justice that the
ECtHR is called upon to render and the scope of the Court’s judgments that go far
beyond the individual case. It is indeed undeniable that, beyond the technical
aspects, the judgments of the Court enjoy the authority of “res interpretata”, which
confers on the Court a constitutional jurisdictional role. If in the judgment in Hirst74
the Court had concerned itself only with the prisoner in question, the result might
have been different and the case would not have whipped up so many waves and
unleashed so much passion.

72
One could also refer, in this context, to Article 35, § 3 b) which empowers the Court to declare
inadmissible an application if the applicant has not suffered a significant disadvantage, ‘unless
respect for human rights as defined in the Convention and the Protocols thereto requires an exami-
nation of the application on the merits’.
73
Fyrnys (2012), p. 329 at 331 and 332.
74
Hirst v. The United Kingdom (No. 2) [GC], 6 October 2005, application no. 74025/01.
142 G. Ravarani

It must also be borne in mind that if the mission of the Court were limited to
rendering purely individual justice, its legitimacy would be certainly and seriously
undermined as, because of the accumulated, daunting backlog, such justice which
may be of limited use to the individual litigants who may have had to wait many
years to see their case addressed by the Court. This too has attracted much
comment:
Against the background of an overwhelming number of applications, the current debate
regarding its core functions raises the question of whether the Court should engage in ‘con-
stitutional’, in contrast to ‘individual’, adjudication. The ‘constitutional’ concept highlights
the Court’s function in a pan-European standard setting. In this respect, individual cases are
the material from which legal arguments about what the concrete provision of the
Convention mean are extrapolated and the general content of the legal order provided by the
Convention is developed. According to this conception, it is the lawmaking role that should
be seen as the Court’s main raison d’être.75

An unmistakable additional element which demonstrates that the value of the

Court’s judgments goes beyond individual justice can be found in Protocol No. 16
which entered into force on 1st August 2018. It entrusts the Grand Chamber of the
Court with the task of issuing advisory opinions following a “preliminary refer-
ence” by superior national courts.76 This will inevitably, at least in part, lead to
abstract questions.77
The conclusion is quite straightforward: not only is limiting the effects of the
Court’s judgments to individual cases undesirable, it is simply technically
impossible.78
That being said, can the European judge disregard the individual case in order to
deliver a general message about a pressing human rights problem that the individual
case, strictly speaking, does not provide him or her with the opportunity to tackle?79
Here, a red line should not be crossed. Even if, as underlined above, the effects of

75
Fyrnys (2012), p. 330, summing up the analysis by Wildhaber (2002) and Harmsen (2007).
76
The right to ask such questions will be limited to the highest courts and tribunals designated by
the States which will be parties to Protocol no. 16 (see Art. 1 and 10 of the Protocol). As the opin-
ions of the Court will be advisory, they will not be binding on any court, even not on those which
will have referred the question. However, here again, the opinions will enjoy, at least, a persuasive
authority which will be unlikely to be limited to the courts having asked for the opinion and even
to the authorities of the States that will be parties to Protocol no. 16.
77
…notwithstanding the request that an advisory opinion may only be sought in the context of a
pending case before the requesting court. In that sense, the relationship between a concrete case
and an abstract response seems to be quite similar to the preliminary ruling system before the
CJEU.
78
On the other hand, in some very specific circumstances, it happens that the Court stops dealing
with individual cases if the legal issue has been clearly defined in a previous pilot judgment and if
the issue is about the failure, by the domestic authorities, to take general measures following the
said judgment rather than individual measures of redress, see Burmych and others v. Ukraine [GC],
12 October 2017, application nos. 46852/13, 47786/13, 54125/13 et al.
79
Cf. Radomilja and others v. Croatia [GC], 20 March 2018, application nos. 37685/10 and
22768/12.
Some Reflections on the Legitimacy of the Strasbourg Judge 143

judgments80 exceed the scope of the individual case, judges should be aware of the
fact that it is the exclusive privilege of parliaments and governments to be able to
seize themselves of general questions and provide normative solutions. Legislative
initiative exclusively belongs to the political power. The iron rule is that judges can-
not and must never take up a case or a problem on their own initiative or use the
individual case as a pretext for delivering a message which has little or nothing to
do with the individual case. Were judges to do so they would be acting ultra or
rather extra petita in the true sense of the expression and would thereby lose their
legitimacy.

2.2 Specific Duties

The far-reaching mission and powers which the Court enjoys impose specific obli-
gations, be it on the organisational level, where it must endeavour to show efficiency
despite very limited means (Sect. 2.2.1) or on the institutional one, where it must
respect the member States’ primary responsibility in the safeguard of human rights,
the Court’s role being a subsidiary one (Sect. 2.2.2).

2.2.1 Efficiency

The Strasbourg Court has developed substantial case law on the reasonable time
within which justice must be rendered by domestic courts and it has found an excep-
tionally large number of violations in this field.81 It might look strange that the Court
does not appear to apply the standard of reasonable time when delivering its own
judgments. Unfortunately, reality speaks a different language. In this context, it has
to be underlined that, compared to the magnitude of its task, the Court is severely
underequipped. The backlog is worrying and the increasing strictness when it comes
to assessing the admissibility of applications at the level of introduction of applica-
tions82 (Rule 47) leads to discontent among many lawyers. This increased strictness
and the “industrial” processing of inadmissible cases is undoubtedly the result of
the incessant pressure to manage the case-load to which the Court is subjected.
While such draconian procedures have reduced a stock of cases that previously
exceeded 160,000 cases to about 60,000, the solution is cyclical while the problems
are structural. In reality, the Court lacks the means to deal with the number of cases
it receives in a timely manner and if it were to apply to itself the standards of formal
admissibility of applications without undue severity in the light of what it requires

80
… by the way, also of national judgments, above all of constitutional or national administrative
courts.
81
See the Court’s guides on fair trial (civil and criminal limbs), cited above.
82
Article 47 of the Rules of the Court, amended on different occasions (17 June and 8 July 2002,
11 December 2007, 22 September 2008, 6 May 2013, 1st June and 5 October 2015).
144 G. Ravarani

from national courts – in this context the Court’s case law about “excessive formal-
ism” depriving applicants of their right of access to a court, thus violating Article 6
of the Convention should be recalled83 – the backlog would be an even more serious
problem.84 As justice delayed is justice denied, a significant backlog whose origins
are structural causes general dissatisfaction which, in the long term, may erode the
Court’s credibility and legitimacy.85
One could, of course, consider increasing the number of judges, equipping them
with personal staff, as is the practice at the Court of Justice of the European Union,
or recruiting more lawyers. In order to substantially increase the ability of the Court
to examine cases and hand down judgments in a timely manner, no bounds are
placed on the imagination and on the most foolish of dreams.86 However, are these
“dreams” really that crazy? If one really wants to prevent the Court from getting
bogged down in business and becoming the victim of its “success”, should it not be
provided with the necessary means to enable it to carry out its external supervision
properly?

2.2.2 Subsidiarity

What should be ultimately the Court’s main focus in order to remain within the
limits of the legitimate exercise of its power? Here the very specific nature of its role
clearly distinguishes it from a national court: the Strasbourg Court has a subsidiary
role in relation to the national judge as regards the protection of human rights. It
intervenes only in case of a deficit on the part of the national authorities and in order
to guarantee minimum standards. It is the national forum which is the primary arena
for resolving Convention disputes, not Strasbourg.87
The subsidiarity rule was formulated by the Court itself long ago.88 It is now the
subject of a specific provision of Protocol no. 15, albeit one which is, for the time
being, not ratified by all the Member States, this being a condition for the Protocol
to enter into force.
There is one main existing instrument, namely the margin of appreciation, which
helps European judges to respect the subsidiary role of the Court (Sect. 2.2.2.1).
One could also go beyond this existing tool and imagine a system which, by chang-
ing the majority rule when a judgment is given, would strengthen the subsidiarity
mechanism (Sect. 2.2.2.2).

83
See e.g. Kemp v. Luxembourg, n° 17140/05, 24 April 2008; RTBF v. Belgium, n° 50084/06, 29
March 2011; Miessen v. Belgium, n° 31517/12, 18 October 2016; Kuznetsov and others v. Russia,
13 March 2018, nos. 24970/08 and 56354/09.
84
European Court of Human Rights (2018).
85
See, among many others, Council of Europe (2015).
86
…all the more foolish as some member States have reduced or even stopped their financial con-
tribution to the Council of Europe’s budget.
87
Spano (2017).
88
Handyside v. United Kingdom [plen.], application no. 5493/72, 7 December 1976, § 48.
Some Reflections on the Legitimacy of the Strasbourg Judge 145

2.2.2.1 Margin of Appreciation and Proportionality

The starting point for the margin of appreciation mechanism89 lies in the fact that,
while human rights are universal, national cultures are particular. The Court accepts
that national authorities must benefit from a choice of the means to be utilised in
their domestic legal systems for the performance of their obligations under the
ECHR because they are “in principle, better placed than an international court to
evaluate local needs and conditions”.90 Furthermore, State parties have different
written and unwritten constitutional systems and traditions, and are exposed to dif-
ferent challenges when implementing international obligations.91
The freedom of choice is not unlimited however. First, for the margin to operate
there has to be the possibility of a choice; absolute rights (to life, not to be ill-­
treated, etc.) don’t allow a choice. Secondly, when qualified rights (freedom of reli-
gion, expression, etc.) are at stake, the Court imposes the respect of minimum
standards and sets limits to the discretion of the national authorities. Interference
must be necessary in a democratic society92 and the means used must be proportion-
ate in order to achieve the purpose of the interference. In other words, they should
not be excessive. Necessity implies the existence of a pressing social need. It is for
the national authorities to assess such need. Besides the necessity test (should there
be an interference with a right guaranteed by the Convention?) there can be the need
for a balancing exercise which occurs when two equally protected qualified rights
(e.g. freedom of speech vs. right to privacy) or an individual right and a public inter-
est are in competition. Each of these steps is subject, however, to European
supervision.
As it is for the national authorities to first assess the interference they deem nec-
essary and for the Court to step in only if this margin is exceeded, the self-restraint
the Court imposes on itself – it could indeed technically perfectly well step in to
scrutinise every aspect of the State’s decision-making, but chooses to stand back
and accept some of it as given – underlines its subsidiary role in the concrete imple-
mentation of respect of human rights. The breadth of the margin depends on various
factors (e.g. societal choices,93 local traditions,94 whether sensitive moral or ethical
issues are at stake95) and has given rise to extensive case law.

89
The notion is well known in French administrative law. If the judges were themselves called upon
to take the decision, they might have taken a different one, but the administration made an assess-
ment which remained within the limits of what the judges could accept.
90
Buckley v. United Kingdom, application no. 20348/92, 25 September 1996, § 74; Garib v.
Netherlands [GC], application no. 43494/09, 6 November 2017, § 137.
91
Villiger (2007).
92
Handyside v. United Kingdom, [plen.], application no. 5493/72, 7 December 1976.
93
S.A.S. v. France [GC], application no. 43835/11, 1st July 2014, § 154 (Integral islamic veil in
public space).
94
Lautsi v. Italy [GC], application no. 30814/06, 18 March 2011, § 68 (Christian cross in
classrooms).
95
A, B and C v. Ireland [GC], application no. 25579/05, 16 December 2010, § 97 (abortion).
146 G. Ravarani

The narrower the margin, the more stringent the control. In principle, the Court’s
review is carried out on the basis of the reasons adduced by the national authorities
to justify the impugned measure. It has to decide, on the basis of the different data
available to it, whether the reasons provided by the national authorities in order to
justify the actual interference complained of are relevant and sufficient for the pur-
poses of the Convention.96 If the national authorities have weighed the competing
interests in compliance with the criteria laid down in the case-law, the Court requires
strong reasons to substitute its view for that of the domestic courts.97 Conversely, if
there has been no proper assessment or balancing at the domestic level, the Court
will itself carry out such an exercise.98
Starting from the premise that national authorities deserve the largest possible
trust by the European judge, some authors address the shift from a substantial to a
procedural review of the margin of appreciation,99 which is particularly appropriate
where the margin of appreciation is deemed to be wide. The Court’s control is then
based on a presumption of compliance100 and limited essentially to verifying a lack
of arbitrariness where the procedural criteria are satisfied. As far as national rule-
making is concerned, in a “qualitative, democracy-enhancing approach”,101 the
Court must examine whether the legislative decision-making process leading to
measures of interference was fair and such as to afford due respect to the individual

96
Paradiso and Campanelli v. Italy [GC], application no. 25358/12, 24 January 2017, § 179.
97
See a recent definition of the margin of appreciation mechanism in an Article 8 case: “…the
Court has generally understood the margin of appreciation to mean that, where the independent
and impartial domestic courts have carefully examined the facts, applying the relevant human
rights standards consistently with the Convention and its case-law, and adequately balanced the
applicant’s personal interests against the more general public interest in the case, it is not for it to
substitute its own assessment of the merits (including, in particular, its own assessment of the
factual details of proportionality) for that of the competent national authorities. The only exception
to this is where there are shown to be strong reasons for doing so”, Ndidi v. United Kingdom,
application n° 41215, 14 September 2017, § 76.
98
Perinçek v. Switzerland [GC], application no. 27510/08, 15 October 2015, §§ 199, 274 and 279.
99
Nussberger (2017).
100
The presumption mechanism entails dangers too. Cf. Arnardottir (2017), pp. 9–35 at 35: “[…]
should the Court want to continue to develop presumptions of Convention compliance where it has
previously performed its own proportionality assessments, it would be well advised to elaborate
the relevant presumption, what is needed to rebut it, and whether or not it has been rebutted in an
individual case – instead of oscillating between full deference and own assessments like it cur-
rently often seems to do in practice. It should also be kept in mind that the path it seems to be
embarking upon in this respect lays it bare to new challenges in terms of the legitimacy of its judg-
ments. Issues of quality and consistency can be raised (what triggers the new approach, what is
needed for complete deference, what is needed for rebuttal, etc.); it seems clear that questions of
double standards may be raised (why is the presumption applied/rebutted, in some judgments and
not others); and it should also be pointed out that if the margin of appreciation can be criticized as
a tool to evade the Court’s judicial responsibility, the same criticism would seem to apply a fortiori
to presumptions of Convention compliance. […] Opening up the margin of appreciation, while still
exercising the Court’s authority to have the final say on the merits, could send the same signal
without risking the problems identified above”.
101
Spano (2014b), pp. 487–502.
Some Reflections on the Legitimacy of the Strasbourg Judge 147

interests safeguarded by the Convention.102 When dealing with individual measures,

the Court must satisfy itself that the decision-making process was fair and allowed
the concerned parties to present their case fully.103 There is room for procedural
control even as regards absolute rights, namely when procedural obligations, such
as the obligation to examine the suspicious death of a person, are at stake.104
The increasing emphasis laid on procedural review transpires from the Court’s
increasingly strict application of the obligation for an applicant to exhaust domestic
remedies.105 This is a prominent sign of the priority given to national courts to
resolve disputes involving the exercise of the rights guaranteed by the Convention.
A second manifestation of the jurisprudential application of the procedural review
consists in the setting out by the Court of criteria to be applied by the national courts
in order to verify whether a right under the Convention has been violated. There is
now a whole series of judgments setting out such criteria, e.g. in the area of fair trial
in criminal matters,106 respect for privacy,107 balancing the right to privacy and the
right of free speech.108 A recent judgment identifies no less than six criteria for
national authorities to verify whether an employee has misused emails at his place
of work.109 At any rate, the national courts must still play the game and not deliber-
ately refuse to follow the Court’s case-law and apply the criteria set out in it.110
There is obviously a shared responsibility between the national authorities and
the Court when it comes to respecting the margin of appreciation. The relationship
is asymmetric, as it is for the Court to set the margin and for the national authorities
to exercise their discretion within the boundaries established.111 They cannot claim

102
E.g. in the field of the wearing of the integral veil in public space, S.A.S. c. France [GC], [GC],
application no. 43835/11, 1st July 2014; Dakir v. Belgium, 11 July 2017, application no. 4619/12;
Belcacemi and Ouassar v. Belgium, 11 July 2017, application no 37798/13; of the obligations of
the authorities in the field of euthanasia, Lambert c. France [GC], application no. 46043/14, 5 June
2015; in the field of the ban on political advertising on television and radio, Animal Defenders v.
UK [GC], application no. 48876/08, 22 April 2013.
103
X. v. Latvia, [GC], application no. 27853/09, 26 November 2013, § 102; Garib v. The
Netherlands, GC], application no. 43494/09, 6 November 2017, § 157.
104
Spano (2014a).
105
V. Vuckovic v. Serbia [GC] application nos. 17153/11 et al., §§ 69 et seq.
106
Ibrahim and others v. United Kingdom [GC], application nos. 50541/08, 50571/08, 50573/08
and 40351/09, 13 September 2016.
107
Roman Zakharov v. Russia [GC], application no. 47143/06, 4 December 2015 (secret
surveillance).
108
Von Hannover v. Germany (n° 2) [GC], application nos. 40660/08 and 60641/08, 7 February
2012.
109
Barbulescu v. Romania [GC], application no. 61496/08, 5 September 2017.
110
See Barbulescu v. Romania [GC], application no. 61496/08, 5 September 2017, §§ 131 et seq,
where the domestic courts stated the different criteria but failed to apply them to the facts of the
case.
111
This should not be misunderstood. It is not the Court’s task to set in advance and in an abstract
way the boundaries of the margin of appreciation. It can only do so ex post, in a given case, and
examine whether a national court has respected its margin of appreciation or not. This then
becomes case law which gives the national courts guidance in subsequent cases.
148 G. Ravarani

the margin of appreciation for themselves before the Court has set minimum stan-
dards. A dialogue between national courts and the European Court may be engaged
as national contexts may develop and change in the course of time. The Court can
also discover the existence of a relevant consensus among European States, a fac-
tor that will narrow the different States’ margin of appreciation in the concerned
area.
The margin of appreciation mechanism and the proportionality test are closely
interrelated. Once the scope of the margin of appreciation is set in relation to a given
Convention complaint, the European judges will perform a more fact-specific
inquiry where they determine whether the measures actually taken were necessary
in order to achieve the – accepted – purpose of the restriction to the right at stake.
The restriction needs to be “proportionate”, which means that it should not be
excessive.112 Here again, the Court admits variations but sets limits.
Although the margin of appreciation mechanism and the proportionality test are
criticised for their ambiguities113 and the Court for lacking consistency114 when
applying them, they remain the core pieces in the subsidiarity framework aimed at
preserving the European judge’s legitimacy.

112
Despite the term “proportionate” which in principle raises the question of proportionate to what,
the proportionality test does not imply a comparative exercise.
113
Some consider that, where it is a question of balancing two rights in conflict, the margin of
appreciation has no place: “One might have expected the Court to argue the precise opposite: a
situation where the basic rights of individuals are in conflict is precisely the sort of case in which
the Court itself, as the guardian of those rights, needs to investigate closely and make its own deci-
sion on every aspect of the matter. Where those decisions are easy to make, it might have said,
assessment of the relevant factors may more safely be left to the state, but in these difficult cases
judicial self-restraint is not appropriate”, Malcolm (2017), p. 47 in fine.
114
About the margin of appreciation: “In one and the same case, we find the following views: that
the margin was wide because of factual complexity and the difficulty of examining all the circum-
stances in commercial matters; that the state remained within the margin because its arguments
about points of principle were correct; that the Court had a duty to examine all the circumstances
in commercial matters, which meant that there was no margin; that the margin must be smaller in
commercial matters because the dispute there is between private interests, not involving calcula-
tion of the general interest by the state; and that, on a point of principle, there should be no margin
at all in such a case”, Malcolm (2017), p. 49. About the proportionality test: “We are in the realms
of ‘balancing’, trying to establish just how much of this right should be taken as the equivalent of
that countervailing right or interest, so that a little extra weight on the countervailing side will
justify a little interference, and a larger amount will justify interference to a greater extent. As the
standard modern work on proportionality points out, there are various choices and decisions to be
made here, into each of which an element of subjectivity can enter: choosing which interests
should be taken as the relevant ones on both sides, deciding whether this interest is intrinsically
more important than that one, assessing whether each of the relevant interests is strongly or
weakly engaged in this particular situation, and then performing the final comparative measure-
ment, when there is no real common scale on which to place the two (or more) things”, Malcolm
(2017), p. 28.
Some Reflections on the Legitimacy of the Strasbourg Judge 149

2.2.2.2 Changing the Majority Rule for Giving a Judgment?

Despite all the efforts of the Court and the Member States to invigorate the principle of
subsidiarity, a principle which implies self-restraint by the European judge in case a
solution is not straightforward, the simple majority rule governing the decisions of the
Court – which is contained in Rule 23 of the Rules of the Court and not in the Convention
itself – risks undermining the entire patiently constructed theoretical edifice.
The confidence in national bodies implied by the principle of subsidiarity (the
margin of appreciation and proportionality, which are essentially vague concepts
and allow various equally acceptable positions on the same issue) implies that in
doubtful cases the Court will trust national courts. How then can a Grand Chamber
judgment obtained by a very narrow majority, in the worst case scenario by 9 votes
to 8, be reconciled with the subsidiary role of the Court? An extreme case can be
imagined: a national Supreme court where dissenting votes are possible and known
adopts a certain solution unanimously. A Chamber of the Court concludes unani-
mously that there has been no violation of the Convention. Following referral, the
Grand Chamber then finds a violation of the same Convention article by 9 votes to
8. It is only necessary to count the votes of the judges of the Court at both Chamber
and Grand Chamber level to find out that a minority has in fact found in favour of a
violation.115 In a national system, there are – albeit doubtful116 – reasons for the
superior qualification of appellate judges over first instance judges, but this is not
the case for Strasbourg judges where it is chance that determines whether a judge
sits in a Chamber or in a Grand Chamber in the same case. This scenario demon-
strates how the subsidiary role of the Court can be defeated in a situation where a
minority of judges at the Court disagree with the national court and where there is
room for different assessments, the opinion of that minority can prevail.
The result is unfortunate, and it is perhaps these judgments that are the most
damaging to the legitimacy of the Court.
Could shaping subsidiarity, in the sense of requiring a qualified, clear majority
for finding a violation of the Convention, be imagined? Not without some difficul-
ties. Admitting that a proposed violation of the Convention would find a simple,
albeit not the necessary majority, what would the judgment look like? Could there
be any judgment at all? There would probably be two “opinions”, one by the simple
yet insufficient majority and one by the minority. The Court would declare that no
violation has been found but that no reasoned judgment could be delivered as the
question remained controversial. If such a result were obtained in the Grand
Chamber after the non-violation judgment by a Chamber, the judgment of the
Chamber would be res judicata. On the contrary, if the Chamber judgment had
found a violation, the overall effect of the Grand Chamber’s deliberation would be
that there is no violation, however without any reasoned judgment. Still, there would

115
Some judges openly make such calculations, see common separate opinion by Judges Yudkivska,
Vehabović and Kūris in Radomilja and others v. Croatia [GC], 20 March 2018, application nos.
37685/10 and 22768/12.
116
Ravarani (2010), p. 355 et seq.
150 G. Ravarani

be a solution to the case and probably interesting opinions by the relative majority
and the minority that could be discussed in academia and be useful for further cases.
If such a system appears unsatisfactory, it has to be noted that it has antecedents,
i.e. the system prevailing in the earlier days of the Convention system when, in the
Committee of Ministers, there had to be a qualified majority for finding a violation
of the Convention. Despite all its negative points, such system would avoid declara-
tions of violations if there is no overall majority of judges (Chamber plus Grand
Chamber) in favour of such solution. This would then exclude the finding of “nar-
row” violations and thus strengthen the Court’s legitimacy.

3 Conclusion

At the end of this little excursion into the difficulties which European judges must
address if they are to “merit” their legitimacy, it seems as if they are, after all, in
“good company”. Any judge, even a national judge, has to face the reproach of a
democratic deficit. Such a challenge flows from a very narrow understanding of
what democracy is really about and from the assumption that there is no legitimacy
other than that of an elected parliament.
A judgment cannot please everybody and in fact it will almost inevitably dis-
please one of the parties. It can also displease State authorities, the political power,
parliament. This alone doesn’t mean that the legitimacy of the judge who delivers
the judgment can be challenged unconditionally. If the judgment is in accordance
with the law and sufficiently reasoned and if, moreover, there is no problem about
the judges’ impartiality, no legitimacy issue should reasonably arise. Such legiti-
macy has a different shape and nature than that of the political power. However, far
from being in competition, the two forms of legitimacy are complementary.
If the political power wishes to change the legal provisions with reference to
which a judgment has been given or if it is not satisfied with their interpretation, it
can change the law. In no way should the political power interfere directly, be it in
a pending case or after a judgment has been given, in the judges’ work, by giving
instructions to the judiciary.
It is true that where the judgment emanates from an international judge interpret-
ing an international treaty, the national political power cannot unilaterally change
the norm but either has to initiate the – risky and unlikely to be successful – change
of the relevant international instrument under which the impugned judgment was
given or must seek in a subsequent case to have the relevant case-law reversed. The
situation is not genuinely different from the wish, by a national legislator, to change
a provision of the constitution that is interpreted by the constitutional court in a way
that displeases; things are even more difficult when fundamental rights enshrined in
the constitution are concerned. This does not call into question, however, the legiti-
macy of the competent judge as he or she has been charged to apply and to interpret
the rules laid down in the constitution; it is the normal functioning of a separation
of powers political regime characterised by checks and balances.
Some Reflections on the Legitimacy of the Strasbourg Judge 151

A legitimacy problem only arises if national or international judges overstep

their jurisdiction or give totally unreasonable judgments. The ultimate guarantors of
legitimacy are the judge’s professionalism and reasonableness.
Of course, like any institutional power, the judiciary has to face criticism.
However, here too, one has to distinguish between reasonable and unreasonable
criticism. If criticism is about a certain decision and if it is based on a solid argu-
mentation, the judge has to take it into account, to reflect on it and possibly react to
it in subsequent judgments. If it is diffuse, general, or aimed at the very office of the
judge, one has to be extremely careful. A large proportion of the population only see
the Strasbourg Court as a court “for crooks and criminals”. They hardly imagine
that one day they themselves might have to seek the protection of their fundamental
rights in Strasbourg or via Strasbourg case-law domestically applied. This contrasts
with the fact that tens of thousands of European citizens and residents, year in and
year out, file applications complaining to the Court about alleged (and frequently,
serious) violations of their fundamental rights. As soon as a judgment of the
Court finds a violation of the Convention by a State, indignation is general and
unanimous – except in the legal journals read by specialists. In contrast, the many
judgments finding no violation in often very sensitive areas are generally ignored.117
Moreover, as far as an international court and, in particular, the ECtHR, is con-
cerned, it is difficult to turn a blind eye to the vigorous progress of nationalism,
enhanced by populism, which puts internationalism on the defensive.118 The national
State is considered to be the only legitimate framework for making decisions and
protecting people’s interests.
The most virulent criticisms of the legitimacy of the European judge demonstrate
one thing: he or she is certainly not the only international player to endure such criti-
cism and seems to be rather a collateral victim of the return of nationalism.119

117
E.g. for the United Kingdom, Amos (2017), p. 773: “In 2015, 575 applications against the UK
were allocated to a judicial formation and 720 were allocated in 2014. In 2015, 13 judgments were
delivered concerning the UK, with four judgments finding at least one violation and nine judg-
ments finding no violation. Also in 2015, 136 interim measures sought under Rule 39 against the
UK were refused”. There are very important issues where the Court did not find a violation, e.g. in
the judgment about “kettling” techniques to contain demonstrations, Austin v. U.K., [GC], 15
March 2012, application nos. 39692/09, 40713/09 and 41008/09.
118
Ory (2017). The author identifies three elements that characterise populism: a fundamental pos-
tulate of a confiscated popular sovereignty, a strong identification with a national community and
a clear personalisation of leadership, the ideal model of populism locating in such personalisation
the place where its contradictions can be solved (p. 46). The national State appears to be the ideal
vehicle for federating such feelings, the ideal victim being of course an international organisation,
especially if it exercises some authority over the national State’s institutions. It is apparently essen-
tial for any human being to have somebody on whom to concentrate his hatred (see Einstein and
Freud (1996)).
119
The criticisms stem from the premise that the national legislator and, consequently, the frame-
work of the national State, is the supreme body for the expression of the will of the people, sweep-
ing away other less contingent and sometimes artificial frameworks to obtain, and to take into
account, the will of the people. Cf. Bellamy (2014), p. 1030 s.; Donald and Leach (2016), p. 131.
152 G. Ravarani

If, as has been stated above, the ultimate guarantee of legitimacy is the judge’s
reasonableness, it is of course impossible to define what a reasonable judge is. The
European judges should certainly not overstretch the dynamic interpretation of the
Convention and should thoroughly respect the subsidiary role of the Court. On the
other hand, if for fear of alienating certain virulent critics, especially from countries
seriously considering turning their backs on internationalism and the international
protection of human rights, the European judges begin to have more regard for these
susceptibilities than for the effective protection of human rights, they will definitely
have forfeited any claim to legitimacy.

References

Amos M (2017) The value of the European court of human rights to the United Kingdom. Eur J Int
Law 28(3):763–785
Arnardottir OM (2017) The “procedural turn” under the European convention on human rights
and presumptions of convention compliance. Int J Constit Law 15(1):9–35. Oxford University
Press
Barbiéri J-J (2004) Autour de la Cour de cassation. In: La Légitimité des Juges, Actes du colloque
des 29-30 octobre 2003 organisé par l’Université de Toulouse I. Presses de l’Université des
sciences sociales de Toulouse, Toulouse, p 82
Bellamy R (2014) The democratic legitimacy of international human rights conventions: political
constitutionalism and the European convention on human rights. Eur J Int Law 25(4):1019
Bentham J (1948) An introduction to the principles of morals and legislation. Hafner Publishing,
New York
Çalı B, Koch A, Bruch N (2011) The legitimacy of the European court of human rights: the view
from the ground. UCL, Strasbourg
Commaret D (1998) Une juste distance ou réflexions sur l’impartialité du magistrat, Recueil de
jurisprudence Dalloz, Paris, chron. p 262
Cornu G (2016) Vocabulaire juridique, Presses Universitaires de France - P.U.F., Association Henri
Capitant, Paris
Council of Europe (2015) Report of the Steering Committee for Human Rights adopted on 11
December 2015, The longer-term future of the system of the European Convention on Human
Rights. Online available at: https://www.coe.int/t/dghl/standardsetting/cddh/reformechr/
GT-GDR-F/Patrick.pdf
Donald A, Leach P (2016) Parliaments and the European court of human rights. Oxford University
Press, Oxford
Einstein A, Freud S (1996) Warum Krieg? – Ein Briefwechsel, correspondence, 1933. Diogenes,
Zürich
European Court of Human Rights (2018) Analysis of statistics 2017. Online available at: http://
echr.coe.int/Documents/Stats_analysis_2017_ENG.pdf
Fontaneau C (2004) La légitimité du juge prudhomal. In: Raibaut J, Krynen J (eds) La Légitimité
des Juges, Actes du colloque des 29-30 octobre 2003 organisé par l’Université de Toulouse
I. Presses de l’Université des sciences sociales de Toulouse, Toulouse, p 205
Fyrnys M (2012) Expanding competences by judicial lawmaking: the pilot judgment procedure
of ECHR. In: Von Bogdandy A, Venzke I (eds) International judicial lawmaking: on public
authority and democratic legitimation in global governance. Springer, Berlin, p 329 (331, 332)
Garapon A (1997) Bien juger: Essai sur le rituel judiciaire. Editions Odile Jacob, Paris
Garapon A, Allard J, Gros F (2008) Les vertus du juge. Dalloz, Paris
Glazer GS (2003) L'élection des juges américains et les problèmes d'éthique. In: L'éthique du
juge: une approche européenne et internationale. Dalloz, Paris
Some Reflections on the Legitimacy of the Strasbourg Judge 153

Gomułowicz A (2014) The judge and “correcting” the law: fundamental dilemmas, scientific bul-
letin of the administrative courts, special issue, The Polish administrative judiciary as a guaran-
tor of freedoms and rights of the individual. NSA, Warszawa
Harmsen R (2007) The European court of human rights as a ‘Constitutional Court’: definitional
debates and the dynamics of reform. In: Morison J, McEvoy K, Anthony G (eds) Judges, transi-
tion, and human rights. Oxford University Press, Oxford
Madsen MR (2016) The challenging authority of the European Court of human rights: from Cold
War legal diplomacy to the Brighton declaration and Backlash. Law Contemp Probl 79:141–
178. Online available at: https://scholarship.law.duke.edu/lcp/vol79/iss1/6/
Mahoney P (1999) Judicial activism and judicial self-restraint in the European Court of human
rights: two sides of the same coin. Eur Hum Rights Law J 11:78
Malcolm N (2017) Human rights and political wrongs, a new approach to human rights law. Policy
Exchange, London
Montesquieu (1777) L’esprit des lois, Garnier
Nussberger A (2017) Procedural review by the ECHR: view from the court. In: Gerards J, Brems
E (eds) Procedural review in European fundamental rights cases. Cambridge University Press,
Cambridge
Nussberger A (2018) Schmelztiegel Europa, Wie europäische Richter mit einer Stimme spre-
chen (oder auch nicht). In: Baer S, Lepsius O, Schönberger C, Waldhoff C, Walter C (eds) 66
Jahrbuch des öffentlichen Rechts der Gegenwart (JöR), Neue Folge. Mohr Siebeck, Tübingen
Ory P (2017) Peuple souverain, De la révolution populaire à la radicalité populiste. Gallimard,
Paris
Pescatore P (2000) La légitimité du juge en régime démocratique. Revue Commentaire 90:345
Ravarani G (2010) Interrogations autour d’un droit fondamental: l’appel. In: Justices et droit du
procès, Du légalisme procédural à l’humanisme processuel, Mélanges en l’honneur de Serge
Guinchard. Dalloz, Paris
Rosanvallon P (2008) La légitimité démocratique, Impartialité, réflexivité, proximité. Seuil, Paris
Shany Y, Noam G (2014) The European court of human rights. In: Shany Y (ed) Assessing the
effectiveness of international courts. Oxford University Press, Oxford, p 275
Spano R (2014a) The European court of human rights: anti-democratic or guardian of fundamental
values, UK Human Rights blog, 19 November 2014. Online available at: https://ukhuman-
rightsblog.com/2014/11/19/the-european-court-of-human-rights-anti-democratic-or-guardian-
of-fundamental-values-judge-robert-spano/
Spano R (2014b) Universality or diversity of human rights? Strasbourg in the age of subsidiarity.
Hum Rights Law Rev 14(3):487–502
Spano R (2017) The future of the European Court of human rights – towards process-based review?
Middlesex University School of Law, 6 October 2017
Théron J-P (2004) A propos de la légitimité du juge administratif. In: La Légitimité des Juges,
Actes du colloque des 29-30 octobre 2003 organisé par l'Université de Toulouse I. Presses de
l’Université des sciences sociales de Toulouse, Toulouse, p 100
Thuière J-F (2004) De la légitimité du juge administratif. In: Raibaut J, Krynen J (eds) La
Légitimité des Juges, Actes du colloque des 29–30 octobre 2003 organisé par l'Université de
Toulouse I. Presses de l’Université des sciences sociales de Toulouse, Toulouse, p 116
Villiger ME (2007) The principle of subsidiarity in the European convention on human rights. In:
Kohen MG (ed) Promoting justice, human rights and conflict resolution through international
law, Liber amicorum for Lucius Caflisch. Brill, Leiden, p 623, 632
von Bogdandy A, Venzke I (2012) Beyond dispute: international judicial institutions as lawmakers.
In: von Bogdandy A, Venzke I (eds) International judicial lawmaking: on public authority and
democratic legitimation in global governance. Springer, Berlin, pp 3–33 (21, 22)
Wildhaber L (2002) A constitutional future for the European court of human rights? Hum Rights
Law J 23:161, 162
Wiśniewski A (2016) The European court of human rights: between judicial activism and passiv-
ism. Gdańsk University Press, Gdańsk, pp 103–110