CYIL vol. 13 (2022)

ARMEN HARUTYUNYAN CYIL 13 ȍ2022Ȏ The Court has specified that certain provisions of the Convention are characteristic of democratic society. In its very first judgment, the Court stated that in a democratic society, judicial proceedings should be conducted in the presence of the parties and in public. This fundamental principle was upheld in Article 6 of the Convention. 19 The Court has stated that the freedom of assembly and the right to express one’s views through it are among the essential foundations of a democratic society. The essence of democracy is its capacity to solve problems through open discussions. In a democratic society based on the rule of law, political ideas which are advocated by peaceful means and challenge the existing order, may be given an opportunity of expression. 20 Democracy is the regime that provides the individual autonomy in both private and public relations. Democracy requires the protection of human rights and rule of law to ensure the rights of minority. Effective protection of human rights and freedoms can only be guaranteed in a democratic country where rule of law prevails, and the Convention aims to guarantee that the member states of the Council of Europe share these democratic values. 21 Human rights and freedoms in the concept of democracy are treated as an inherent property of the individual. States can restrict human rights and freedoms, provided that firstly, such a restriction is based on law, secondly, it should pursue the legitimate aim and, thirdly, it must be necessary in a democratic society. The activity of a democratic state is inextricably linked to human rights, and, human rights are the priority in the domestic and foreign policy of such a state. Therefore, public policy in democratic states acquires humanitarian dimension. Human rights are designed to define the limits of the freedom of state power. Policy measures that violate them, infringe the freedom of the individual. Those policy measures are illegal and immoral, since human rights are not only a reflection of the legal experience of human development, but also the crystallization of its moral principles, associated with individual freedom and autonomy. The inclusion of fundamental rights and freedoms in the Constitution means that the state has undertaken obligations to guarantee and protect these rights and not to violate them. Therefore, the position of the ECtHR has doctrinal importance. Its position has normative character because the Court, in defining the components of democracy, sets limits for state action. These definitions form the judicial basis for the Court to assess what is allowed and what is prohibited under the Convention. The rule of law without democracy is not immune to particularism, and democracy without rule of law is not immune to the disfranchisement of minorities. It is unlikely to reach a balance of interests between all sectors of the population if those who are affected by law cannot take part in the law making. Those who are not involved in the formation of the state’s will can be disregarded in the decision-making processes. For these reasons, there is a danger to treat democracy and rule of law independently. Only in conjunction the rule 19 United Communist Party of Turkey and others v. Turkey, Merits and Just Satisfaction, Judgment of 30 January 1998, Appl. No. 19392/92, § 45. 20 Stankov and the United Macedonian Organisation Ilinden v. Bulgaria , Merits and Just Satisfaction, Judgment of 2 October 2001, Appl. Nos. 29221/95 and 29225/95, § 97. 21 HARUTYUNYAN, A. ‘The Future of the European Court of Human Rights in the Era of Radical Democracy’, (2021) 2 European Convention on Human Rights Law Review 20, p. 25.

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