A discourse about the new forms of democratic governance and the challenges facing the traditional ones in the pan-European space, should not neglect the role of a non-political (and non-democratic) actor such as the European Court of human rights. In the last decade, the case law of the Strasbourg court has increasingly dealt with disputes of constitutional relevance for the concerned Countries impinging upon the democratic functioning of State institutions. By submitting an application to the Strasbourg Court, individuals and groups throughout Europe has tried in fact to bypass the ordinary national democratic procedures, that on some sensitive issues have consistently proved to be ineffective or intractable, with the aim of obtaining from the Human Rights Court a ruling likely to be imposed “from above” to reluctant or politically blocked domestic institutions (governments, parliaments, public agencies, etc.). A strategy seems to take shape of using the Strasbourg procedure to unlock the political debate in some European Countries on “hot issues” such as LGBT rights, political rights of detainees, secularism and education, minority rights, media freedom, immigration policies, bio-law issues, etc. This tendency is witness of a kind of inability on the part of the democratic institutions to take charge meaningfully and timely of a variety of demands put forward by an increasingly fragmented and multicultural constituency. The “subsidiarity” of the European Court should therefore be revised in order to keep into consideration not only its role as a judicial body in close dialogue with its national and international counterparts in the judiciary, but also as an institutions with a potential impact on the political agenda of states.

The European Court of Human Rights: A New Actor of Multilevel Governance?

DE STEFANI, PAOLO
2012

Abstract

A discourse about the new forms of democratic governance and the challenges facing the traditional ones in the pan-European space, should not neglect the role of a non-political (and non-democratic) actor such as the European Court of human rights. In the last decade, the case law of the Strasbourg court has increasingly dealt with disputes of constitutional relevance for the concerned Countries impinging upon the democratic functioning of State institutions. By submitting an application to the Strasbourg Court, individuals and groups throughout Europe has tried in fact to bypass the ordinary national democratic procedures, that on some sensitive issues have consistently proved to be ineffective or intractable, with the aim of obtaining from the Human Rights Court a ruling likely to be imposed “from above” to reluctant or politically blocked domestic institutions (governments, parliaments, public agencies, etc.). A strategy seems to take shape of using the Strasbourg procedure to unlock the political debate in some European Countries on “hot issues” such as LGBT rights, political rights of detainees, secularism and education, minority rights, media freedom, immigration policies, bio-law issues, etc. This tendency is witness of a kind of inability on the part of the democratic institutions to take charge meaningfully and timely of a variety of demands put forward by an increasingly fragmented and multicultural constituency. The “subsidiarity” of the European Court should therefore be revised in order to keep into consideration not only its role as a judicial body in close dialogue with its national and international counterparts in the judiciary, but also as an institutions with a potential impact on the political agenda of states.
2012
Intercultural Dialogue and Multilevel Governance in Europe. A Human Rights Based Approach
9789052018713
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11577/2475862
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