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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 Substantive Contents of Law

The Substantive Contents of Law

(p.173) 5 The Substantive Contents of Law
The Concept of the Rule of Law and the European Court of Human Rights

Geranne Lautenbach

Oxford University Press

The European Court of Human Rights (ECtHR) has strengthened the procedural focus of the European Convention on Human Rights (Convention) based on the rule of law. Articles 5, 6, 7, and 13 of the Convention could be understood as part of the rule of law in the case law. Because these rights are procedural in nature, the rule of law cannot be said to constrain the substantive contents of national law, but rather its form and the manner in which the respective domestic legal systems are organised. In the case law of the ECtHR, the quality requirements of legality and procedural safeguards have most to offer when protecting individuals from far-reaching forms of government interference, such as interferences with the right to privacy and prosecution in criminal cases. Even so, legality and the procedural safeguards do not concern the content of national law, but only its form. In the case law, the rule of law is thus not confined to the protection of individual freedoms from government interferences. Rather, the rule of law also requires government to actively take measures, especially to ensure adequate procedures. Moreover, the procedural guarantees of the rule of law are of importance when social positive obligations on the part of the state are concerned. Legality does not include an autonomous requirement that domestic laws must conform to a hierarchy of norms. The ECtHR also does not refer to the rule of law to assert its authority as a Constitutional court. Still, the success of the individual application procedure before the ECtHR could be described in terms of the rule of law.

Keywords:   European Court of Human Rights, European Convention on Human Rights, rule of law, case law, legality, procedural safeguards, government interference, national law

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