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European Court of Human Rights: Autonomous Legal Concepts
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The European arrest warrant system is one of the greatest achievements in the development of cooperation in judicial matters among EU Member States. However, its implementation has raised many questions, resulting in referrals by national courts to the Court of Justice of the European Union (CJEU) for preliminary rulings. This article analyses the impact of the CJEU’s preliminary rulings on Lithuanian law concerning European arrest warrants. Specifically, the focus of the paper is institutional configuration and corresponding regulation in this field because/after the CJEU decided that (1) the Ministry of Justice cannot be considered a judicial authority because as part of the executive branch it cannot guarantee the protection of the parties’ fundamental rights; (2) however, the Prosecutor General of Lithuania can be considered a judicial authority because it participates in the administration of criminal justice and is independent of executive governance, and because its decisions to issue European arrest warrants are subject to judicial review.
This book provides a philosophical study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-American legal, political, and moral philosophy, it also aims to provide a normative theory of the foundations of the ECHR rights. The author argues that, unlike the role of human rights in theories of global justice, the purpose of the ECHR is not to set conditions for the legitimate tolerance of states at the international level; and unlike the role of human rights in the work of international human rights organisations, the purpose of the ECHR is not to set acceptable political goals that all states have a reason to pursue, albeit progressively and at their own discretion. Rather, the ECHR is best seen as enshrining human rights that are both legal and liberal: they are founded upon liberal egalitarian principles that impose conditions on the legitimate use of coercion by member states against persons within their jurisdiction. The normative role of the Convention rights is therefore no different to that of domestic constitutional rights within a liberal democracy. The book provides a critical account of the use of state consensus, evolutive interpretation, and the doctrine of the margin of appreciation in the case law of the European Court of Human Rights. It defends the view that the ECHR rights, properly understood, are absolute rights which must be applied in a principled manner across the 47 European member states, regardless of drafters' intentions and states' current consensus.
This paper addresses the role of the European Court of Human Rights in interpreting the European Convention on Human Rights and attacks the standard image in the literature that pictures judges as having, by default, a great amount of discretion in interpretation and a power to create new law. The Court’s notion of ‘autonomous concepts’ is presented and analysed thoroughly, to show that substantive disagreement is widespread in law and that judges must necessarily make choices precisely out of respect for what the ECHR grants. The paper draws resources from Ronald Dworkin’s philosophy and shows the affinities between the theory of ‘autonomous concepts’ and Dworkin’s ‘semantic sting’ argument. It is argued that all concepts in the ECHR are autonomous, in the following two senses: first, people do not share the same linguistic criteria on how to identify their meaning; second, the correct meaning may radically transcend the way the ECHR concepts are classified and understood within the national legal order. Judges therefore have to construct substantive theories that aim at capturing the nature or purpose of the right involved and of the ECHR more generally. The paper concludes by urging scholars and judges to stop raising the threat of judicial discretion and work out general theories of adjudication for the ECHR.