Constitutionalizing Adjudication under the European Convention on Human Rights

Abstract

The primary function of the European Court of Human Rights is to ensure that administrative and judicial processes in member states effectively conform to pan-European Convention standards ('constitutional justice') rather than seeking to provide every deserving applicant with a remedy for a Convention violation ('individual justice'). But, in order to do so effectively some core elements of the Convention's constitution require more deliberate articulation and more consistent application. In seeking to show how this might be achieved, this article argues that three primary constitutional principles-the judicial protection of Convention rights (the 'rights' principle), the democratic pursuit of the public interest (the 'democracy' principle), and the principle of priority to rights (the 'priority' principle), each exercised according to the rule of law-can be distinguished from a cluster of secondary principles which support them in a variety of ways. An analysis of the Convention's key provisions shows, in particular, how the 'priority' principle can, and should, operate to give the Court's decisions greater coherence and constitutional authority.