SUBSTANTIVE AND PROCEDURAL ISSUES RAISED BY THE ACCESSION OF THE EU TO THE ECHR

Abstract

Human rights courts often behave as constitutional courts especially when they have the ability to control the “separation of powers” in States in accordance with human rights conventions (“conventionality control”). This study comments on the latest “abuse of power” jurisprudence of the European and Inter-American courts of human rights, which embraces rich implications for re-evaluating general and specific provisions that place democratic limitations on human rights violations. The first section confirms that the courts have recently implemented conventionality control of “abuse of power” against judicial independence, voices of political opposition and media pluralism, in all such unfair exercises of authority adverse influences are exerted on individual (human rights) and collective (democracy) aspects. The next section justifies or criticises the courts’ decisions on the pro-democratic fair balance tests (legality, legitimacy and proportionality) embodied in human rights conventions’ general and specific limitation clauses, which have rarely been scrutinised until recent cases of “abuse of power”. In essence, this study shows that value-oriented momenta in their practical decisions can contribute to a future mapping of constitutionalism beyond the State (ius constitutionale commune), limiting domestic abuse of kratos (power) of the demos (people) in terms of international human rights sources.