The Rule of Law in the Case Law of the Strasbourg Court

Abstract

Our subject is the rule of law (l’Etat de droit ou la prééminence du droit, die Rechtsstaatlichkeit) in the case law of the European Court of Human Rights (ECtHR) in Strasbourg. But why this particular Court and not the Court of Justice of the European Union in Luxembourg? The answer is that the Strasbourg Court established by the European Convention on Human Rights and Fundamental Freedoms (ECHR) of 1950 is a European Constitutional Court, the jurisprudence of which is of importance not only for the 47 Member States of the Council of Europe but also for the European Union (EU) with 27 Member States. All EU Member States are also members of the Council of Europe and all Member States of the Council are also Contracting Parties to the Human Rights Convention. Indeed the EU was in comparison late in the field of protection of human rights, understandable because it had other aims. The Council of Europe was established earlier and the Union refers to the Convention in its basic Treaties. That was done in Art. F.2 TEU-Maastricht where the Treaty as amended declared that the Convention rights are “general principles of community law”.