The European Court of Human Rights - a Constitutional Court of Europe?
The European Court of Human Rights - a Constitutional Court of Europe?

Author(s): Brano Hadži Stević
Subject(s): Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: European Court of Human Rights; European Convention on Human Rights; Human rights and freedoms; Constitutional Court; Materia constitutionis; Constitutionalization;
Summary/Abstract: The European Court of Human Rights (ECtHR) is the protector of European Convention on Human Rights (ECHR) with jurisdiction to “ensure the observance of the engagements” on this act which represents the base of European law of human rights and freedoms. Important questions about this institution and this act are related to their nature. Some authors think that the Convention and the Court resemble the constitution and the constitutional court, respectively. This article seeks to review this conception by analyzing two questions: (1) Is the ECHR a constitution of Europe and (2) is the ECtHR European Constitutional Court? In seeking answers to these questions, we will describe the typical characteristics of constitution (materia constitutionis) and compare them with characteristics of the ECHR. Afterwards, we will describe the typical characteristics of constitutional courts and their reasoning in order to compare them with the ECtHR’s institutional role and its reasoning. In particular, the effect of the decisions of the constitutional courts and the ECtHR will be analyzed, as well as the criteria (which are not necessarily legal) used by these institutions in process of reasoning. Regardless of nature of this act and this institution, this paper tends to show that the ECHR and decisions of the ECtHR have important role in constitutionalisation of legal orders of European countries.

• Details
• Contents