CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ARTICLE 18 OF THE ECHR AS AN EARLY WARNING INSTRUMENT FOR THREATS… of law and democracy can ensure the common interest. 22 In this regard, it is difficult to underestimate the potential of the European Convention on Human Rights and the case law of the ECtHR to protect the democracy and the rule of law, and Article 18 as an early warning instrument for threats both to democracy and the rule of law. 3. Policy of the ECtHR in relation to case-law concerning Article 18 The concept of the rule of law is mentioned in the Preamble to the European Convention on Human Rights. This concept is part of the common heritage of the member states. In its case-law, the ECtHR has recognized that the rule of law is a part of the European States’ common heritage. This shows that the state parties to the Convention share the same concept of the rule of law. Moreover, the travaux préparatoires demonstrate that the rule of law is one of the reasons the States signed the Convention and entered into an obligation to comply with the Convention rights. 23 The rule of law is a core value underlying the Convention. 24 The ECtHR has described that the rule of law is a ‘notion from which the whole Convention draws its inspiration’. 25 The rule of law is not only directly mentioned in the Preamble to the Convention, but also is present indirectly in many of its articles that refer to the requirement of ‘legality’. The restrictions on individual rights and freedoms can only be imposed if they are ‘in accordance with the law’ which must be foreseeable and accessible. ‘In accordance with law’ does not only mean that an adequate legal basis is required for the restrictions. It is also required that domestic law be compatible with the rule of law. 26 It is noticeable that the Court’s case-law has emerged from more declaratory into more specific and actionable in its nature over the past decades, and especially after the enlargement to Eastern European space. “This has implied a shift away from an exclusively subsidiary role as ‘secondary guarantor of human rights’ to a more central and crucial position as a constitutional adjudicator” 27 Nevertheless, in the recent years, the Court is considered to transform from a passivity to be more proactive in indication of non-monetary measures on individual or general level. 28 Thus, it is increasingly clear that in order to protect the ordered European legal pluralism, the Court has to assume a more general constitutional and centralized role, by drawing the necessary conclusions from proclamation that the Convention is a ‘constitutional instrument of European public order’ and, consequently, by going beyond the original aim of ensuring (only) individual justice. The ECtHR clarified the role of the rule of law in the context of Convention system in some of its landmark 22 GRIMM, D. Constitutionalism: Past, Present and Future (2016), p. 353. 23 See LAUTENBACH, G. The Concept of The Rule of Law and The European Court of Human Rights (2013), p. 12. 24 We agree with Greer who sees the rule of law as one of the primary constitutional principles of the jurisprudence of the ECtHR, together with ‘democracy’ and ‘effective protection of human rights’. S. Greer, The European Convention on Human Rights, Achievements, Problems and Prospects (2006), p. 196. 25 Engel and others v. The Netherlands , Merits, Judgment of 8 June 1976, Appl. No. 5100/71, § 69. 26 Malone v. the United Kingdom , Merits, Judgment of 2 August 1984, Appl. No. 8691/79, § 67. 27 ORESTE, P. The New Relationship between National and the European Courts after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential Supranational Law?, Yearbook of European Law , Volume 29, Issue 1, 2010, Pages 65–111, 01 January 2010, p. 86. 28 Dr Alice Donald and Ms Anne-Katrin Speck, School of Law, Middlesex University London (UK), January 2018, The Evolving Remedial Practice of the European Court of Human Rights, Seminar report, (from the speech of Robert Spano, Judge at ECtHR), p. 3.

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