THE CONSTITUTIONAL CHARACTER OF THE ECHR: OVERVIEW, CHALLENGES IN IMPLEMENTATION AND LIMITATIONS

Abstract

The constitutional character of the European Convention on Human Rights (ECHR or Convention) has always been an issue for debate. Having in mind the fact that the European Court of Human Rights (ECtHR or the Court) decides on violations upon fundamental rights that are a constitutional category, there is no doubt that the ECtHR is at least some sort of Constitutional Court while the Convention acts as a supranational constitution.

This article focuses on the differences in the implementation of the Convention in national legal systems depending of the monist or dualist approaches and subsequently on the limitations to application of the ECHR. Indeed, the practice shows that most problems arise from the inconsistencies between the national constitutions and the ECHR regarding some issue which is differently regulated in the national law, or the state in question does not want to abide by the provisions of the ECHR regarding the subject in question. The situation is quite complicated when the conflict arises between the Convention and the national constitution on certain core human rights where the obligation to protect them is more important than established national laws and practices. The differences which arise should not be considered as a negative remark, or a system which fails to protect human rights. It is quite a difficult task for the Court to decide on possible violations of the Conventions’ rights, but states should resume their obligations undertaken with the ratification of the Convention and the Court should be more open-minded and flexible in adjusting its case-law to the new developments on the European level.