9. The European Convention on Human Rights: Inherent Constitutional Tendencies and the Role of the European Court of Human Rights

Abstract

The European Court of Human Rights (ECtHR) is a remarkable institution. Over the past 50 years, it has shown that the protection of human rights is no longer an exclusive matter for national constitutions and national courts. Human rights, as guaranteed under the European Convention on Human Rights (ECHR), have become an issue in European law and public international law. This process has advanced considerably and has not yet come to an end. The practice under the ECHR of more than 60 years and the thousands of decisions of both the former European Commission on Human Rights and the ECtHR, clearly show that it is a success story without comparison in the history of public law. Established and ratified by the states of Western Europe against the background of the ruins of World War II and the horrors of Nazism, the ECHR, as a charter of human rights, became a necessary element of a democratic society. Twenty years ago, after having influenced the legal orders of two dozen of more or less ‘old’ democracies, and after their people had torn down the Iron Curtain, this remarkable instrument of European law started conquering the countries of the old communist regimes in Central and Eastern Europe. Within less than a decade, the ECHR became an undisputed legal instrument in these states too and started influencing constitutional law as well as legislation and the judiciary. At about the same time, in 1998, the new – permanent – Court began to work with higher capacity, leaving behind the former system of a Commission and a non-permanent Court. As a direct consequence of its success, particularly in Eastern Europe but also in the ‘old’ member states, the ECtHR was flooded with applications. By the beginning of 2012, for instance, Christoph Grabenwarter*