CEU Electronic Theses and Dissertations, 2024
| Author | Vanspauwen, Casper |
|---|---|
| Title | The Concept of Constitutional Identity within the System of the European Convention on Human Rights |
| Summary | This thesis examines the evolving concept of constitutional identity within the framework of the European Convention on Human Rights (ECHR), after it has migrated from the framework of the European Union (EU). In the EU context, national constitutional courts have essentially developed the concept to demand identical fundamental rights protection at the EU level. This development arose as a reaction to the Court of Justice of the European Union's (CJEU) limited application of the national identity clause of Article 4.2 TEU and its insistence on the primacy, uniformity, and effectiveness of EU law over fundamental rights catalogues in national constitutions. While some applications of constitutional identity by national courts have been legitimate, others have led to questionable clashes with the CJEU, particularly in instances where courts lacking independence were undermining the rule of law. To mitigate such conflicts, the CJEU should foster judicial dialogue by allowing domestic courts to apply their fundamental rights catalogues and by giving more weight to the national identity clause. In contrast, the ECHR's objective of safeguarding human rights places the European Court of Human Rights (ECtHR) in a comparatively weaker position to enforce its judgments within the legal orders of the High Contracting Parties. Despite a generally more deferential stance, national constitutional courts have implicitly invoked constitutional identity arguments, prompting the ECtHR to shift from an indifferent to a more sensitive attitude towards national constitutional law, emphasising judicial dialogue. However, in Savickis and Others v. Latvia and subsequent cases, the ECtHR's oversensitivity has led to the recognition of constitutional identity as a legitimate aim within the ECHR without an adequate proportionality assessment, which is problematic in the light of the rule of law. Future research should focus on how the ECtHR's jurisprudence evolves, particularly concerning the proportionality test in assessing constitutional identity claims and the width of the margin of appreciation. |
| Supervisor | Möschel, Mathias |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2024/vanspauwen_casper.pdf |
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