The Concept of the Rule of Law and the European Court of Human Rights

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. Contents Table of Cases and International Instruments xiii List of Abbreviations xxiii 1. Introduction 1 1 Background of the Research 1 1.1 Th e upsurge of the rule of law debate 1 1.2 Th e rule of law as a standard for the international legal system 3 1.3 An international rule of law standard directed at states 6 2 Focus of the Research 9 2.1 Th e European Convention on Human Rights 9 2.2 Th e rule of law as a value underlying the Convention 11 3 Outline and Methodology 15 2. Th e Rule of Law Concept 18 1 Introduction 18 2 Approaches to the Rule of Law Concept 19 2.1 Elements of the rule of law 19 2.2 Aims of the rule of law 21 2.3 National forms of the rule of law 24 2.4 Analysis 35 3 Legality: Th e Central Element of the Rule of Law Concept 37 3.1 Diff erent forms of legality 37 3.2 Quality requirements of legality 38 3.3 Judicial safeguards as requirements of legality 42 3.4 Legality setting limits to governmental power 44 3.5 Legality and the substantive aims of law 45 4 Separation of Powers, Judicial Safeguards, and the Rule of Law 49 4.1 Th e separation of powers doctrine 49 4.2 Safeguards by an independent judiciary 51 5 Th e Relation between Human Rights and the Rule of Law 54 5.1 Procedural human rights 55 5.2 Human rights and limited government 57 5.3 Human rights and the substantive contents of law 60 6 Th e Relation between Democracy and the Rule of Law 62 6.1 Democracy defi ned as majority rule 62 6.2 Democracy defi ned as the self-rule of the people 64 7 Conclusion 67 3. Th e Legality Concept in the Case Law 70 1 Introduction 70 2 Th e Role and Function of Legality in the Case Law 71 00_9780199671199fm.indd ix 0_9780199671199fm.indd ix 11/5/2013 3:43:43 PM 1/5/2013 3:43:43 PM x Contents 2.1 Th e Convention articles referring to legality 71 2.2 Th e term legality 73 2.3 Th e importance of legality for the protection of Convention rights 74 2.4 Th e requirements of legality derived from the rule of law 76 3 Th e Existence of a National Law 79 3.1 Th e fourth instance doctrine 80 3.2 Th e material view on domestic law 83 3.3 Analysis 85 4 Th e Quality Requirements set to National Law 86 4.1 Accessibility 87 4.2 Foreseeability 88 4.3 Judicial safeguards as a requirement of legality 101 4.4 Non-retroactivity in criminal cases 105 4.5 Quality requirements of legality concerning the right to liberty 110 4.6 A limited role of generality in reviewing the quality of the law 112 4.7 Analysis 113 5 Diff erentiating Legality from Proportionality 117 6 Conclusion 121 4. Judicial Safeguards 124 1 Introduction 124 2 Th e Right to a Fair Trial 125 2.1 Th e detailed guarantees of the right to a fair trial 125 2.2 Access to court derived from the rule of law 128 2.3 Th e scope of the right of access to court 130 2.4 Limitations of the right of access to court 137 2.5 Th e authority of judicial decisions 146 2.6 Analysis 150 3 Judicial Safeguards beyond the Right to a Fair Trial 153 3.1 Th e authority of the judiciary 153 3.2 Judicial safeguards protecting the right to liberty 154 3.3 Th e right to an eff ective remedy 155 3.4 Analysis 158 4 Separation of Powers and Independent Judiciary in the Case Law 159 4.1 Th e growing importance of the separation of powers doctrine 159 4.2 A general standard of independence 162 4.3 Independence and impartiality 164 4.4 A tribunal established by law 167 4.5 Analysis 168 5 Conclusion 170 5. Th e Substantive Contents of Law 173 1 Introduction 173 2 Procedural Convention rights 174 3 Th e Rule of Law and Individual Freedom 178 3.1 Th e changing focus of the Convention 178 3.2 Th e rule of law most relevant to protect individual freedom 180 00_9780199671199fm.indd x 0_9780199671199fm.indd x 11/5/2013 3:43:43 PM 1/5/2013 3:43:43 PM Contents xi 3.3 Th e rule of law and positive obligations 181 4 Th e Rule of Law and the Substantive Contents of Law 185 4.1 Legality and a hierarchy of norms 185 4.2 Th e Convention as a constitutional instrument 186 5 Conclusion 191 6. Democracy 193 1 Introduction 193 2 Defi ning Democracy 193 2.1 Democracy based on pluralism and participation 193 2.2 Th e only political model compatible with the Convention 196 2.3 Th e importance of judicial safeguards to democracy 198 2.4 Analysis 200 3 Th e Rule of Law Requiring Democracy 200 3.1 Th e democratic heritage of norms 201 3.2 Democracy governed by the rule of law 206 4 Conclusion 208 7. Conclusion 210 Bibliography 219 Index 233 Cover 1 The Concept of the Rule of Law and the European Court of Human Rights 4 Copyright 5 Dedication 6 Acknowledgements 8 Contents 10 Table of Cases and International Instruments 14 List of Abbreviations 24 1. Introduction 27 1 Background of the Research 27 1.1 The upsurge of the rule of law debate 27 1.2 The rule of law as a standard for the international legal system 29 1.3 An international rule of law standard directed at states 32 2 Focus of the Research 35 2.1 The European Convention on Human Rights 35 2.2 The rule of law as a value underlying the Convention 37 3 Outline and Methodology 41 2. The Rule of Law Concept 44 1 Introduction 44 2 Approaches to the Rule of Law Concept 45 2.1 Elements of the rule of law 45 2.2 Aims of the rule of law 47 2.3 National forms of the rule of law 50 2.4 Analysis 61 3 Legality: The Central Element of the Rule of Law Concept 63 3.1 Different forms of legality 63 3.2 Quality requirements of legality 64 3.3 Judicial safeguards as requirements of legality 68 3.4 Legality setting limits to governmental power 70 3.5 Legality and the substantive aims of law 71 4 Separation of Powers, Judicial Safeguards, and the Rule of Law 75 4.1 The separation of powers doctrine 75 4.2 Safeguards by an independent judiciary 77 5 The Relation between Human Rights and the Rule of Law 80 5.1 Procedural human rights 81 5.2 Human rights and limited government 83 5.3 Human rights and the substantive contents of law 86 6 The Relation between Democracy and the Rule of Law 88 6.1 Democracy defined as majority rule 88 6.2 Democracy defined as the self-rule of the people 90 7 Conclusion 93 3. The Legality Concept in the Case Law 96 1 Introduction 96 2 The Role and Function of Legality in the Case Law 97 2.1 The Convention articles referring to legality 97 2.2 The term legality 99 2.3 The importance of legality for the protection of Convention rights 100 2.4 The requirements of legality derived from the rule of law 102 3 The Existence of a National Law 105 3.1 The fourth instance doctrine 106 3.2 The material view on domestic law 109 3.3 Analysis 111 4 The Quality Requirements set to National Law 112 4.1 Accessibility 113 4.2 Foreseeability 114 4.3 Judicial safeguards as a requirement of legality 127 4.4 Non-retroactivity in criminal cases 131 4.5 Quality requirements of legality concerning the right to liberty 136 4.6 A limited role of generality in reviewing the quality of the law 138 4.7 Analysis 139 5 Differentiating Legality from Proportionality 143 6 Conclusion 147 4. Judicial Safeguards 150 1 Introduction 150 2 The Right to a Fair Trial 151 2.1 The detailed guarantees of the right to a fair trial 151 2.2 Access to court derived from the rule of law 154 2.3 The scope of the right of access to court 156 2.4 Limitations of the right of access to court 163 2.5 The authority of judicial decisions 172 2.6 Analysis 176 3 Judicial Safeguards beyond the Right to a Fair Trial 179 3.1 The authority of the judiciary 179 3.2 Judicial safeguards protecting the right to liberty 180 3.3 The right to an effective remedy 181 3.4 Analysis 184 4 Separation of Powers and Independent Judiciary in the Case Law 185 4.1 The growing importance of the separation of powers doctrine 185 4.2 A general standard of independence 188 4.3 Independence and impartiality 190 4.4 A tribunal established by law 193 4.5 Analysis 194 5 Conclusion 196 5. The Substantive Contents of Law 199 1 Introduction 199 2 Procedural Convention rights 200 3 The Rule of Law and Individual Freedom 204 3.1 The changing focus of the Convention 204 3.2 The rule of law most relevant to protect individual freedom 206 3.3 The rule of law and positive obligations 207 4 The Rule of Law and the Substantive Contents of Law 211 4.1 Legality and a hierarchy of norms 211 4.2 The Convention as a constitutional instrument 212 5 Conclusion 217 6. Democracy 219 1 Introduction 219 2 Defining Democracy 219 2.1 Democracy based on pluralism and participation 219 2.2 The only political model compatible with the Convention 222 2.3 The importance of judicial safeguards to democracy 224 2.4 Analysis 226 3 The Rule of Law Requiring Democracy 226 3.1 The democratic heritage of norms 227 3.2 Democracy governed by the rule of law 232 4 Conclusion 234 7. Conclusion 236 Bibliography 245 Index 259 The Idea Of The Rule Of Law Is A Central, Yet Sometimes Unclear Notion Within The International Legal System. This Text Demonstrates Its Application By The European Court Of Human Rights, Against The Background Of Theoretical Accounts Of The Idea Of The Rule Of Law, And The Differing Approach Of The Uk France, And Germany. Introduction -- The Rule Of Law Concept -- The Legality Concept In The Case Law -- Judicial Safeguards -- The Substantive Contents Of Law -- Democracy -- Conclusion. Geranne Lautenbach. Revision Of Author's Thesis (doctoral)--university Of Amsterdam, 2012. Includes Bibliographical References (pages 219-232) And Index. The idea of the rule of law is a central, yet sometimes unclear, notion within the international legal system. This book demonstrates its application by the European Court of Human Rights, against the background of theoretical accounts of the idea of the rule of law, and the differing approach of the UK, France, and Germany.