Wednesday, 19 November 2014

Judge Spano, ECtHR: anti-democratic or guardian of fundamental values?

The European Court of Human Rights: anti-democratic or guardian of fundamental values? – Judge Robert Spano | UK Human Rights Blog: "In sum, and this is the most important point, in the discharge of his mandate, it is not the role of the Strasbourg judge to second-guess the reasoned assessment of the national judge on the eventual outcome of a case, dealing with Convention rights that allow for restrictions based on proportionality, so long as the national judge has faithfully applied the general principles of the case-law of the Court to the facts of the case in accordance with the constitutional traditions in his country. I submit that if one carefully analyses recent cases of the Strasbourg Court, for example in Animal Defenders and SAS v. France, the so- called Burqa case, one might see a trend towards a more foreseeable and rational application of the margin of appreciation in line with a more robust concept of subsidiarity inspired by the Brighton Declaration of 2012, adopted under the UK Presidency in the Council of Europe, especially where difficult areas of economic and social policy are concerned. 
To be more precise, this case law has three elements. Firstly, with what may be termed the democratic element, the Court acknowledges that national authorities have “direct democratic legitimation”. 

For a more fully developed analysis of this point, see Robert Spano, Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiary." 'via Blog this'

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