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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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(p.193) 6 Democracy
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), the core values of democracy are the plurality of ideas, the freedom of speech, tolerance, broad mindedness, and political representation through elections. The rule of law as a concept of the European Convention on Human Rights (Convention) primarily denotes legality and the existence of judicial safeguards. In that sense, the rule of law and democracy have a different focus. Legality does not set an autonomous standard concerning the democratic origin of law, except in relation to specific areas of law. However, on an abstract level, legality implies that laws are ultimately based on popular consent. In the case law, democracy is the broader concept, because it is also described as the only political model compatible with the Convention. For this reason, the rule of law can be understood as one of the central values of democracy in the context of the Convention. The fact that the ECtHR does not draw very clear boundaries between the rule of law and democracy in certain cases should best be understood in the light of the Preamble of the Convention, which states that the European countries are like minded and have a common heritage of political traditions.

Keywords:   European Court of Human Rights, European Convention on Human Rights, rule of law, case law, democracy, legality, judicial safeguards

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