AbstractThe main focus of this thesis is on the work of the European Court on Human Rights (the Court, ECtHR), namely on judgments by which the Court reads into the European Convention on Human Rights (the Convention, ECHR) rights with significant socio-economic elements already guaranteed under the European Social Charter (the Charter, ECS) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT). Reading in such rights into the Convention raises numerous problems, from practical ones concerning the implementation of judgments and the increase of the Court’s workload, to the problem of the Court’s inconsistency and finally to this being a threat to the Court’s legitimacy. It will be argued that, despite the Court’s wide powers when interpreting the Convention rights, there are rights already guaranteed under different Council of Europe (CoE) instruments and the Court should not extend the scope of the Convention into these areas, nor does it have the legitimacy to do so.
The thesis first sets out theoretical framework, research questions and methodology. The second chapter presents the current position of civil and political and economic and social rights within the regional and global human rights instruments. This will be followed by the theoretical approaches to differences among these two categories of rights, if any. The third chapter will be an introductory chapter to the European human rights system. In chapters IV, V, VI, and VII the case-law of the Court concerning judgments with significant socio-economic elements will be discussed. These chapters focus on four areas where this has happened: detention conditions and healthcare in prisons, the environment, healthcare in general, and housing. These rights are not guaranteed under the Convention, but are under the ECPT and the ESC. After presenting the Court’s jurisprudence, the problems surrounding such Court’s practice will be analysed. Furthermore, it will be questioned whether the Convention is suitable for protection of these rights, since there are other European instruments under which these rights are guaranteed. For that reason, the practice of the CPT and the ECSR will be analysed to show that the protection of the above stated rights is better left for these mechanisms to deal with. Another problem is that the Court when delivering judgments with significant socio-economic elements is often not setting clear standards and is being inconsistent, creating even more uncertainty among states regarding their obligations under the Convention. The inconsistency of the Courts reasoning in the case-law discussed in chapters IV-VII is discussed in chapter VIII. Chapter IX discusses the Court’s legitimacy in the context of the above mentioned issues. The final chapter concludes by summarising the findings in relation to the research questions.
|Date of Award||2012|
|Sponsors||Open Society Foundations & University of Rijeka|
|Supervisor||Robin Churchill (Supervisor)|