5 - Institutional Infrastructure of the European Court of Human Rights and Its Ability to Shape European Public Order

Summary

In the previous chapters, I have shown that the European Court of Human Rights (ECtHR or Court) should refrain from relying on the legal concept of European public order in its reasoning as it is vague and unprecise and distorts the meaning of the function of the Court. However, European public order can be useful as an analytical concept describing the activities of the Court. This chapter looks at European public order as an analytical concept. In order to influence European public order in that sense, it seems that the Court needs to be able to formulate rules of general application. These rules should comply with a few basic conditions. First, they should be abstract enough to be applicable beyond the individual circumstances of the case and, second, they should not deal with a problem that is exclusive to a particular member state. On top of that the Court should be able to ensure that these rules are properly implemented; thus, the Court’s increased role on the stage of implementation is a sign of a deeper involvement with European public order.