The Constitutional Relevance of the ECHR in Domestic and European Law

In recent years the European Convention on Human Rights gained unexpected relevance in the European constitutional culture. On the one hand its increasing importance is closely linked to institutional reforms that strengthened the European Court of Human Rights’ reputation vis-à-vis the Member States. On the other hand, and even more importantly, the ECHR’s significance arises from a changing perception of its constitutional potential. This volume examines the different facets of the ECHR’s constitutional relevance by separating the ECHR’s role as a ‘factor of Europeanisation’ for national constitutional systems from its role as a veritable European transnational constitution in the field of human rights.
Author(s):
Giorgio Repetto
book | published | 1st edition
May 2013 | xiv + 252 pp.

Paperback
€64.-


ISBN 9781780681184

Details

In recent years the European Convention on Human Rights (ECHR) gained unexpected relevance in the European constitutional culture. On the one hand its increasing importance is closely linked to institutional reforms that strengthened the European Court of Human Rights’ reputation vis-à-vis the Member States. On the other hand, and even more importantly, the ECHR’s significance arises from a changing perception of its constitutional potential.

Starting with the assumption that the ECHR is transforming the European constitutional landscape, this book aims to show that today the European Convention raises unprecedented problems that involve first of all its own theoretical status as constitutional instrument that ensures the protection of human rights in Europe. Changing paradigms concerning its incorporation in domestic law as well as the growing conflicts about the protection of some rights and liberties that are deeply rooted in national legal contexts (such as teaching of religion, bio law and rights of political minorities) are jointly examined in order to offer a unified methodology for the study of European constitutional law centered upon human rights.

For a detailed analysis of these issues, The Constitutional Relevance of the ECHR in Domestic and European Law examines the different facets of the ECHR’s constitutional relevance by separating the ECHR’s role as a ‘factor of Europeanisation’ for national constitutional systems (Part I) from its role as a veritable European transnational constitution in the field of human rights (Part II).

Written for legal scholars focusing on the emerging trends of European and transnational constitutional law this book investigates the basic tenets of the role of the ECHR as a cornerstone of European constitutionalism.


Chapters

Table of Contents (p. 0)

INTRODUCTION. THE ECHR AND THE EUROPEAN CONSTITUTIONAL LANDSCAPE: REASSESSING PARADIGMS (p. 1)

PART I. ESTABLISHING A CONSTITUTIONAL DIMENSION FOR THE ECHR IN DOMESTIC LAW

The Constitutional Background of the 2007 Revolution. The Jurisprudence of the Constitutional Court (p. 21)

Rethinking a Constitutional Role for the ECHR. The Dilemmas of Incorporation into Italian Domestic Law (p. 37)

Strasbourg Jurisprudence as an Input for ‘Cultural Evolution’ in Italian Judicial Practice (p. 55)

The Strasbourg Court’s Influence on the Italian Criminal Trial (p. 69)

The ECHR’s Influence on the Italian Regulation of the Administrative Trial. The Right to an Independent and Impartial Tribunal (p. 83)

Toward a Convergence Between the EU and ECHR Legal Systems? A Comparative Perspective (p. 97)

National Constitutions and the ECHR. Comparative Remarks in Light of Germany’s Experience (p. 119)

PART II. INNER AND OUTER BOUNDARIES: THE RELATIONSHIP OF THE EUROPEAN COURT OF HUMAN RIGHTS WITH CONTRACTING STATES AND WITH THE EU

Teaching of Religion and Margin of Appreciation. The Reluctant Liberalism of the Strasbourg Court (p. 135)

The Crucifix and the Margin of Appreciation (p. 149)

The Unbearable Lightness of the Margin of Appreciation: ECHR and ‘Bio-Law’ (p. 159)

Histories, Traditions and Contexts in the Jurisprudence of the European Court of Human Rights (p. 173)

Immigrants’ Family Life in the Rulings of the European Supranational Courts (p. 189)

Cooperation in Relations Between the ECJ and the ECtHR (p. 205)

The EU and its Member States Before the Strasbourg Court. A Critical Appraisal of the Co-Respondent Mechanism (p. 221)

CONCLUDING REMARKS

The Constitutional Relevance of the ECHR in Domestic and European Law. General Assessments (p. 237)