Definition of the Rule of Law
If you search for an official definition of the rule of law, you will find none. Neither the Convention, nor the Statute provide it. Nevertheless, the concept of the rule of law may be derived from analysis of the relevant Convention provisions and the corresponding case-law of the Court. Based on such analysis, the Council of Europe divided the rule of law-related requirements into three groups: (i) the institutional framework and organization of the state, (ii) the principle of legality, and (iii) due process. For more detailed information see the link.
The first group of rule of law requirements includes (i) the separation of powers between the political organs of the state (legislature and executive) and the judiciary, (ii) the fundamental role of the judiciary as a guarantor of justice that upholds the law on the territory of its state and ensures the security of all, as well as the enjoyment of human rights, (iii) a tribunal that must always be established by law, (iv) a right to vote and stand for election, and finally (v) the duty of the state to respect and apply the law, including the duty to enforce final domestic judgments.
The second group of rule of law requirements reflects the principle of legality. This principle is enshrined in many provisions of the Convention specifying that the State interference with human rights must be “lawful”, “prescribed by law”, or “in accordance with law.”[3] According to this principle the State is obliged to respect and apply the domestic law, to ensure the legal and practical conditions for implementation of the domestic law. The principle also requires execution and enforcement of the final domestic judgments.
The third group of rule of law requirements includes (i) the principle of judicial control of the executive, (ii) the right of access to a court, (iii) the right to an effective remedy,[4] and (iv) the right to a fair trial,[5] including such guarantees as the presumption of innocence, the right to a fair trial within a reasonable time and execution of a judicial decision.
Conclusion
Although the rule of law requirements are inherent in all the Articles of the Convention, the Strasbourg conception of the rule of law is mostly reflected in Article 6, Article 5 (paragraphs 3 and 4), as well as Article 13 of the Convention. Particularly, all three groups of the rule of law requirements emphasize the basic principles and rights set forth in these Articles: (i) independent judiciary established by law and its role as a guarantor of justice and human rights, (ii) enforceability and execution of final judgments, which also includes the right to an effective remedy, and (iii) the right of access to justice and the right to a fair trial.
Case-law reflecting the Rule of Law concept:
Albanese v. Italy, App. No. 77924/01, at 44 (2006);
Amuur v. France, App. No. 19776/92, at 50 (1996);
Beaumartin v. France, App. No. 15287/89, at 38 (1994);
Bozano v. France, App. No. 9990/82, at 58 (1986);
Broniowski v. Poland, App. No. 31443/96, at 184 (2004);
Brumarescu v. Romania, App. No. 28342/95, at 61 (1999);
De Haes and Gijsels v. Belgium, App. No. 19983/92, at 37 (1997);
Engel and Others v. Netherlands, App. Nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, at 69 (1976);
Giacomelli v. Italy, Application no. 59909/00 at 93 (2006);
Golder v. United Kingdom, App. No. 4451/70, at 34 (1975);
Hirst v. United Kingdom, App. No. 74025/01, at 58 (2005);
Hornsby v. Greece, App. No. 18357/91 at 40 and at 104 (1997);
John v. Greece, App. No. 199/05 at 33 (2007);
Karagöz v. Turkey, App. No. 78027/01, at 59 (2005);
Klass and Others v. Germany, App. No. 5029/71, at 55 (1978);
Kleyn and Others v. Netherlands, App. Nos. 39343/98, 39651/98, 43147/98, 46664/99, at 193, 200 (2003);
Lelièvre v. Begium, App. No. 11287/03, at 104 (2007);
Malone v. United Kingdom, App. No. 8691/79, at 68 (1984);
Matheus v. France, App. No. 62740/00, at 70 (2005);
Öcalan v. Turkey, App. No. 46221/99, at 112, 114 (2005);
Olsson v. Sweden, App. No. 10465/83, at 61(a) (1988);
Rotaru v. Romania App. No. 28341/95 (2000);
Ryabykh v. Russia, App. No. 52854/99, at 54 and 57 (2003);
Salabiaku v. France, App. No. 10519/83, at 28 (1988);
Sissanis v. Romania, App. No. 23468/02, at 71 (2007);
Stafford v. United Kingdom, App. No. 46295/99, at 78 (2002);
Stran Greek Refineries and Stratis Andreadis v. Greece, App. No. 13427/87, at 49 (1994);
Sunday Times (No. 1) v. United Kingdom, App. No. 6538/74, at 49 and 55 (1979);
Sürmel v. Germanyi, App. No. 75529/01, at 104 (2006);
Wassink v. Netherlands, App. No. 12535/86, at 27 (1990);
Zielinski and Pradal & Gonzales v. France, App. Nos. 24846/94, 34165/96, 34173/96, at 57 (1999).
(the list is not exhaustive)
[1] See Statute of the Council of Europe, pmbl. and art. 3, May 5, 1949, E.T.S. Nos. 1/6/7/8/11.
[2] Golder v. United Kingdom, App. No. 4451/70, at 34 (1975), HUDOC, http://www.echr.coe.int.
[3] Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols No. 11 and 14, art. 2, 5, 6, 7, 8, 9, 10, 11, Nov. 4, 1950, E.T.S. No. 5.
[4] Id. art. 13, Nov. 4, 1950, E.T.S. No. 5.
[5] The right to a fair trial is provided by art. 6 of the Convention and reflects the fundamental principle of the rule of law.
