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"Constitutional Values" and the Strasbourg Court

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Abstract:

Each national Constitution proclaims a set of values that determine the meaning of its provisions. While there are no clear cut lines between “values”, “principles” and “norms”, all Constitutions contain some very general notions that may serve as a foundation in the process of constitutional interpretation. The question addressedin this article is whether the same phenomenon can be observed at the European level, at least in respect to the European Convention on Human Rights. In other words: is there is a set of “preferred” values and principles of the Convention that serves as a tool coordinating the judicial development of the written text of the Convention? The presentation of some recent judgments of the Strasbourg court allows to propose three observations.First, the text of the Convention refers to several “values” or “principles” of this kind. In the case-law of the European Court of Human Rights, such “value-provisions” have always played an important role. While some are used more often than others, some general lines of jurisprudence can be easily established.Further, in the case-law of the Strasbourg court, the most frequent are references to democracy and the rule of law. This is particularly pertinent for application of Articles 8-11 of the Convention, since they allow limitations of rights only when “prescribed by law” and “necessary in a democratic society”. Another “value-oriented” principle of the Convention is human dignity. Unlike in the case of “democracy”, the written text of the Convention does not contain any express reference to “human dignity”. Nonetheless, it has always been clear that the very essence of the philosophy of the Convention is focused on human dignity. Finally, the judicial interpretation of general notions (values) like “democracy” and “human dignity” may serve as an illustration for another concept that is constantly present in the Strasbourg jurisprudence, that of the evolutive interpretation of the Convention.

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