CYIL 2014

WHAT IS NOT RIGHT IN HUMAN RIGHTS PROTECTION? the entirety of the human being itself (physical, psychological and spiritual integrity), but also his/her integration in society. Thus, a human being, being conceived and seen in this dual dimension cannot be thus considered totally separate from society but has to be regarded as an entire part of it. 6 This introduction had to be presented in order to show that the protection of human being and human rights is designed as one system and should be understand as such. The system deals with an overall (holistic) perception of the human being. If this perception is not maintained and observed, soon there can be a misperception and misunderstanding of human rights protection. The human being may (and must) thus be regarded in its entirety and uniqueness and so protected as such. If protection is granted only to some parts of a human being’s personality (and not to its entirety) and thus is strengthening only some aspects of this personality while weakening others, the human being’s personality is perceived in a deformative or distorted way. The question that soon arises is whether this perception of human rights and holistic perception of human dignity is also applied in judgments of the European Court of Human Rights (hereinafter “ECtHR” or “the Court”). On this issue, we present three cases held before the Court that can show some doubtful elements as being prejudicial to this overall conception of human rights and human dignity. They have been chosen because all are related to a rather new or “evolutive” interpretation of the articles of the Convention (right to private and family life), and all are rather recent cases. The point and the purpose of this text are not to analyse these cases in order to show that the Court’s reasoning and argumentation is not correct. Rather, the aim is to show that by reasoning and arguing in this manner the Court is not able to and thus cannot maintain the concept of human dignity in an absolute frame. And it means that this concept can sooner or later be relativized. In the majority of cases and judgments of the ECtHR, the discordance in this entirety of the perception of the human being is not apparent and is rather missing. These cases relate to obvious interferences of State authorities with human rights. But there are some cases where these ethical, philosophical, sometimes religious, but in totality moral aspects are so important (even decisive) and where it is very essential to keep in mind and observe this overall conception. This signifies assessing the case through this criterion of a human being in its entirety. This means to not only see the petitioner as a real human being (implemented in a social environment), but also to see the petitioner as a human being making and being part of the whole society. Thus, a decision about a violation of human rights (the Convention) should be, in this perception, a decision about the society. (If one person – a human being – and member of a society was mistreated by State authorities, this means that the whole society was mistreated. 7 ) In this overall perception of the human being we are far 6 An individual is a part of society not only by his sole existence in it but by his interconnection with it. The society is not thus a mere sum of individuals but an “original“ organism of its own. 7 This conclusion is far from being a legal conclusion on common responsibility or common social good. It rather poses some philosophical aspects of an overall perception of human being.

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