Can the European Court of Human Rights Shape European Public Order?

Abstract

In Can the European Court of Human Rights Shape European Public Order?, Kanstantsin Dzehtsiarou meticulously investigates the meaning of a term which has been wandering around in the judgments of the European Court of Human Rights (ECtHR or the Court) for a long time: ‘European public order.’ The book asks two interrelated questions: (1) What does ‘European public order’ mean for the ECtHR? and (2) Does the ECtHR have any role in shaping ‘European public order’? Dzehtsiarou argues that ‘European public order’ is too vague to qualify as a legal concept (25) and thus the ECtHR’s claims for shaping ‘European public order’ are illegitimate. Dzehtsiarou finds that the Court used the term ‘European public order’ more than one hundred times in its decisions and judgments (22). Following this finding, Dzehtsiarou starts examining the term ‘European public order’ in these decisions and judgments in order to find out whether the Court has adopted uniform conception of ‘European public order’ (Chapter 2). Through examination of the relevant case-law he shows that ‘European public order’ is an elusive term and the ECtHR’s understanding of the term is far from homogenous (24). For illustration, a few examples that Dzehtsiarou brought forward in the book include the case of Al-Dulimi and Montana Management Inc. v Switzerland. The applicant alleged that Switzerland violated their fundamental rights and freedoms under the European Convention on Human Rights (ECHR or the Convention) while administering the sanctions imposed by the United Nations Security Council under the Chapter VII of the United Nations Charter. Because of the absence of any effective and independent judicial review mechanisms at the national level, the Grand Chamber found a violation of Article 6 (the right to a fair trial) and underlined that ‘ ... the sanctions were imposed in breach of the rule of law which is a “fundamental component” of European public order’ (39). Here the Court linked ‘European public order’ with the rule of law. Another case where the Court referred to ‘European public order’ is United Communist Party of Turkey and Others v Turkey. In this case, the applicant was a political party and it had been dissolved – even before it started its activities – solely based on its name, constitution, and programme. The Court found a violation of Article 11 (the right to freedom of assembly and association) and concluded that democracy is an essential element of ‘European public order’. Thus, the Court, this time, linked democracy with ‘European public order’. In Fabris v France, the applicant claimed that he was denied inheritance because of his status as an ‘illegitimate child’. The Court concluded that there was a violation of Article 14 (prohibition of discrimination) in the case and importantly it stated that prohibition of discrimination was a part of ‘European public order’. As seen, the ECtHR might refer to ‘European public order’ in various contexts and situations, and the term might gain a different meaning