Criticizing the European Court of Human Rights in Switzerland

Abstract

Recently, criticism of the European Court of Human Rights (ECtHR) has taken on quite a drastic tone in Switzerland. The criticism is largely confined to the political sphere and the media. While the current political debate on Switzerland’s relationship to the Convention system is characterized by a harsh tone, there is a consensus among the major political parties, the Swiss government as well as the majority of Swiss academics that the ECtHR performs a crucial function with regard to the protection of democracy, freedom and the rule of law. A recent attempt by a member of the Federal Council (the Swiss government) directed at terminating ECHR membership, failed to gain the approval of the other Council members. Nevertheless, it is not unlikely that the present critical debate will result in changes of Swiss law, cutting back on the direct and the indirect domestic influence of the ECtHR on the Swiss legal order.

The paper provides a typology of critical arguments on the ECtHR, it outlines "discourse strategies" for making critical arguments "work" in the debate, and it analyzes the current counter-dynamics at the political and judicial level.

Keywords: European Court of Human Rights, Switzerland, Criticism, Discourse Analysis