By Thomas Spaas, a Belgian Attorney specialised in Belgian and international tax issues
Criticism of the European Court of Human Rights (ECHR) has indeed grown louder in recent years, and not just from populists. An increasing number of renowned legal experts, (former) judges and politicians are pointing to structural problems that cannot simply be dismissed as ‘ECHR-bashing’. The recent memorandum commissioned by Belgian Prime Minister Bart De Wever and drafted by Marc Bossuyt — former president of the Constitutional Court — illustrates that the criticism is now also coming from within the legal establishment itself.
Below is an analysis of three concerning aspects of the ECHR’s jurisprudence:
1. Insufficient consideration of social implications
One of the most fundamental problems is that the Court delivers judgments whose social consequences are often underestimated or ignored. This is particularly evident in migration and deportation cases, where the ‘overly broad’ interpretation of Articles 3 (prohibition of inhuman treatment) and 8 (right to family life) makes the removal of convicted foreign nationals very difficult in practice. The Netherlands has also officially called for a review of the Court’s migration case law.
The core problem: the Court generally assesses cases on an individual basis, without systematically evaluating the aggregate effects on social cohesion, public support for asylum policy, or the functioning of democratic institutions. The case Hirst v. UK (No. 2) concerning voting rights for prisoners is the textbook example: for years, the United Kingdom refused to implement the judgment because parliamentarians and citizens considered it a ruling that sidelined their own democratic considerations Lord Sumption, a former judge of the UK Supreme Court, argued in his Reith Lectures that the Court has thereby become a de facto “quasi-legislative body” that assumes policy considerations which, in a democracy, belong to parliaments.
This point is even acknowledged internally: former President Marc Bossuyt describes the criticism of asylum policy as “nuanced and justified” and warns that the Court interprets rights so expansively that Member States can no longer shape their own migration policies.
In a new paper distributed to EU governments, Belgium's former Constitutional Court President Marc Bossuyt has urged them to nominate more conservative ECHR judges and revise key asylum rules https://t.co/kxPXOi00GA
— Pieter Cleppe (@pietercleppe) September 16, 2025
2. “Constructive” (evolutionary) interpretation as a law-making instrument
The living instrument doctrine — first explicitly applied in Tyrer v. UK (1978) — holds that the ECHR must be interpreted “in the light of contemporary circumstances”. In itself a defensible method, but the criticism is that in practice it has degenerated into a technique whereby the Court creates rights that the original drafters of the Convention in 1950 never intended or ratified.
The legal objections are serious:
- Problem of democratic legitimacy: Treaties derive their authority from the consent of states. When judges derive new obligations through “evolutionary” interpretation, that chain of consent is broken. An analysis in the Temple International & Comparative Law Journal explicitly states that the Court is “highly criticised for its lack of democratic legitimacy to amend human rights documents”.
- Jonathan Sumption puts it bluntly: in practice, the ‘living instrument’ approach means that the Court claims ‘the right to develop the Convention’ — a law-making power that does not belong to judges.
- Erosion of the margin of appreciation: In theory, the Court allows Member States a margin of appreciation, but in practice this margin is becoming increasingly narrow as the Court perceives a growing “European consensus” — a consensus which it actively constructs itself.
The ECLJ documents that over the years the Court has developed “a growing ideological orientation” whereby practices that were previously contrary to the Convention are now classified as “rights” — without the text of the Convention itself having been amended.
3. Recruitment of judges from a narrow NGO-academic circle
This is perhaps the most empirically well-documented point of criticism, and also the most painful. The reports by the European Centre for Law and Justice (ECLJ) from 2020 and 2023 provide hard figures:
ECLJ report finding (2009–2019) Figure
Permanent judges with a history at activist NGOs: 22 out of 100
Judges from the Open Society Foundation network: 12
Cases in which the judge’s ‘own’ NGO was involved: 185
Cases of direct conflicts of interest (judge ruled in a case involving their own former NGO): 88
Of these, Grand Chamber judgments: 33
Source: ECLJ report (PDF)
The follow-up report (2020–2022) shows that the problem actually increased: from an average of 17 cases per year involving these NGOs to 38 per year ECLJ Impartiality Report.
What makes this significant:
- Narrow recruitment pool: The ECLJ notes that the majority of ECHR judges have “no experience as judges”, but are “former lawyers, jurists and teachers” — often with an activist background. This stands in stark contrast to national supreme courts, where experienced magistrates are typically appointed.
- Lack of recusal rules: Until recently, judges could decide for themselves whether to recuse themselves from a case when their former NGO acted as a party or third-party intervener. Following the ECLJ reports, the Court has since introduced a recusal procedure — an implicit acknowledgement that there was a real problem.
- The problem is not “right versus left”: Former ECHR judge Egbert Myjer, certainly no conservative, has also spoken out in the Nederlands Tijdschrift voor de Mensenrechten on the issue of “Strasbourg judges as advocates for NGOs” NJCM (PDF). The fact that the Court itself — tacitly — has implemented several ECLJ recommendations (recusal procedure, transparency obligations for NGOs, possibility of review in admissibility decisions) confirms the validity of the criticism.
An interesting academic aside: recent research in the Oxford Journal of International Dispute Settlement shows that judges’ professional backgrounds significantly influence their voting behaviour, even in international generalist courts. When a substantial proportion of the judiciary comes from the same ideological and professional milieu, sociological uniformity is not a theoretical risk but a measurable phenomenon.
https://twitter.com/defossardf/status/2049815163360985274
In summary: why this criticism must be taken seriously
The three points of criticism reinforce one another and together constitute a structural problem:
- Judges from a homogeneous NGO-academic background employ a ‘constructive’ interpretation technique that allows them to expand the scope of the Treaty;
- These expansions take place without a systematic impact assessment of societal consequences;
- Because the Court is the highest authority and is not subject to any other judicial review, there is no institutional corrective mechanism — except for political pressure from member states, which is then promptly labelled “anti-human rights”.
It is significant that established legal scholars such as Lord Sumption (UK), Marc Bossuyt (Belgium) and former ECHR judges themselves share this analysis or at least acknowledge parts of it. This is no longer a marginal populist attack, but a debate being waged at the very heart of Europe’s legal system — and the Court’s recent internal reforms prove that the institution itself also recognises that not all criticism was unjustified.
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