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The Concept of the Rule of Law and the European Court of Human Rights$
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Geranne Lautenbach

Print publication date: 2013

Print ISBN-13: 9780199671199

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671199.001.0001

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The Legality Concept in the Case Law

The Legality Concept in the Case Law

(p.70) 3 The Legality Concept in the Case Law
The Concept of the Rule of Law and the European Court of Human Rights

Geranne Lautenbach

Oxford University Press

In the case law of the European Court of Human Rights (ECtHR), legality demands that interferences with the European Convention on Human Rights (Convention) rights are, first, based on a national law, and second, that this law must have sufficient quality. The first requirement is not strictly applied because the ECtHR is not a fourth instance court and because it uses a material concept of domestic law. The material concept of law ensures flexibility and accommodates differences between national legal systems. The ECtHR assesses the quality of the law based on the requirements of legality, which are derived from the rule of law concept. Foreseeability is the most prevalent of these requirements. It includes the demand that law should not be retroactively applied, and that it must be consistent, sufficiently precise, and general. Next to foreseeability, legality demands law to be accessible and also that judicial safeguards exist where national authorities have wide discretionary powers. Legality is of importance for the effective protection of all articles of the Convention, yet it is most prevalent in the case law of the ECtHR in relation to the limitation clauses contained in certain Convention articles such as 8 and 10 and articles 5 and 7 of the Convention. Legality in the context of the Convention is not concerned with the substantive content of domestic law. Based on the review of foreseeability, the ECtHR has developed guidelines to which domestic law must adhere, notably, in the area of secret surveillance methods. These guidelines mainly concern formal aspects, such as the duration of the methods applied and the possibility of control. Nevertheless, in some cases the review of foreseeability allows the ECtHR to take substantive values into consideration.

Keywords:   European Court of Human Rights, European Convention on Human Rights, legality, rule of law, forseeability, national law

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