This book analyses the concept of the rule of law in the context of international law, through the case law of the European Court of Human Rights. It investigates how the court has defined and ...interpreted the notion of the rule of law in its jurisprudence. It places this analysis against a background of more theoretical accounts of the idea of the rule of law, drawing in ideas of political philosophy. It also provides a comparative assessment, demonstrating how the idea of the rule of law has evolved in the UK, France, and Germany. The book argues that at the core of the concept of the rule of law are the notions of legality and judicial safeguards. It states that the Court has developed the requirements of legality, which the work analyses in detail, based on that concept. It assesses the independence of the judiciary as an aspect of the rule of law in the context of the European Convention on Human Rights, and the relationship between the rule of law and the substantive contents of law. The book posits that the rule of law as seen at the Court is not mainly utilised with regard to ‘freedom’ rights, but is more concerned with procedural rights. It discusses the relationship between the rule of law and the view of the Convention as a constitutional instrument of the European public order, and shows that the rule of law and democracy are inextricably linked in the case law of the Court. Ultimately, the book demonstrates in its analysis of the Court’s jurisprudence that the notion of the rule of law is a crucial part of the international legal order.
Judicial Safeguards Lautenbach, Geranne
Concept of the Rule of Law and the European Court of Human Rights,
11/2013
Book Chapter
The European Court of Human Rights (ECtHR) has broadened the scope of the right to a fair trial based on the rule of law to include access to court, the requirement that judicial decisions must be ...executed, and that the finality of judicial decisions must be respected. In the context of the right to an effective remedy, the ECtHR has also emphasised that the rule of law demands that judicial decisions must be executed. The two different, albeit overlapping, functions of judicial safeguards — to settle disputes and to ensure that government acts within the boundaries set by law — are both described as aspects of the rule of law by the ECtHR. In addition, the rule of law requires the independence of the judiciary from the executive and the legislature in the case law. Access to court and respect for final judicial decisions are meant to ensure the effectiveness of the right to a fair trial. The rule of law namely opposes arbitrary restrictions of the right of access to court, and in that sense sets a minimum standard for the right of access to court. The essence of the right of access to court must be upheld. Similar to legality, the right of access to court is important to prevent domestic law arbitrarily limiting the right to a fair trial. Surprisingly, the ECtHR has not frequently referred to the rule of law in administrative and criminal cases when reviewing interferences with the right to a fair trial. It is also noteworthy that the ECtHR has not often linked article 13 of the European Convention on Human Rights to the rule of law. Remarkably, the ECtHR has not developed a strict notion of the independence of the judiciary. Lastly, one could have also expected the ECtHR to motivate its decisions concerning the consecutive exercise of advisory and adjudicative powers with reference to the rule of law.
The Rule of Law Concept Lautenbach, Geranne
Concept of the Rule of Law and the European Court of Human Rights,
11/2013
Book Chapter
The rule of law is an essentially contested concept. It is defined in many different manners and debate is also necessary to keep it thriving. The differences concern the question which elements are ...included into the concept. In all definitions, the rule of law is concerned with the control of public power through law with the aim of protecting the individual. Legality is the core element of the rule of law. First, legality requires government to act on the basis of law. Second, it sets a number of quality requirements to which law must adhere, such as generality and clarity. Legality also requires that the judiciary reviews the legality of governmental acts and provides individuals with access to a fair hearing. In addition, a functional separation of the three powers of government is an inherent element of the rule of law, because it ensures that no one will be a judge in his own cause and that laws are not made with particular cases in mind. The independence of the judiciary is indispensable to the rule of law, seen how it upholds respect for the law. The elements mentioned are formal elements of the rule of law which protect individuals to a certain extent against arbitrary exercise of governmental power. The requirements of legality promote individual autonomy because they allow people to plan their lives. These formal elements of the rule of law are necessary, but not sufficient, to set limits to the substantive contents of law. More inclusive rule of law definitions incorporate human rights protection. Human rights can set substantive limitations on the content of law. Human rights are aimed at protecting the individual from arbitrary power. Besides, procedural rights codify rule of law principles and, as such, are part of the rule of law. Democracy, too, is sometimes understood as an element of the rule of law. Legality then demands law to have a democratic heritage. Conceptually, the rule of law and democracy can be distinguished. In practice, both concepts are inseparable because they are both aimed at protecting the equality and autonomy of individuals. Within European states, it makes sense to see the rule of law in connection with democracy and human rights, because all three concepts are part of the same political tradition of these states. The German Rechtsstaat, the French État de droit, and the UK rule of law concepts must be understood in a comprehensive sense to require laws to have a democratic heritage and remain within the limits of the constitution. At the same time, the balance that is achieved between democracy and the protection of fundamental rights in these states differs.
The Legality Concept in the Case Law Lautenbach, Geranne
Concept of the Rule of Law and the European Court of Human Rights,
11/2013
Book Chapter
In the case law of the European Court of Human Rights (ECtHR), legality demands that interferences with the European Convention on Human Rights (Convention) rights are, first, based on a national ...law, and second, that this law must have sufficient quality. The first requirement is not strictly applied because the ECtHR is not a fourth instance court and because it uses a material concept of domestic law. The material concept of law ensures flexibility and accommodates differences between national legal systems. The ECtHR assesses the quality of the law based on the requirements of legality, which are derived from the rule of law concept. Foreseeability is the most prevalent of these requirements. It includes the demand that law should not be retroactively applied, and that it must be consistent, sufficiently precise, and general. Next to foreseeability, legality demands law to be accessible and also that judicial safeguards exist where national authorities have wide discretionary powers. Legality is of importance for the effective protection of all articles of the Convention, yet it is most prevalent in the case law of the ECtHR in relation to the limitation clauses contained in certain Convention articles such as 8 and 10 and articles 5 and 7 of the Convention. Legality in the context of the Convention is not concerned with the substantive content of domestic law. Based on the review of foreseeability, the ECtHR has developed guidelines to which domestic law must adhere, notably, in the area of secret surveillance methods. These guidelines mainly concern formal aspects, such as the duration of the methods applied and the possibility of control. Nevertheless, in some cases the review of foreseeability allows the ECtHR to take substantive values into consideration.
