Zbornik Radova Pravnog Fakulteta u Splitu (Jan 2014)
Constitutional Court activism and European legal standards
Abstract
Human and minority rights and freedoms flourished and achieved overall affirmation at the end of the twentieth and the beginning of the twenty-first century everywhere in the world, particularly in Europe. A significant contribution was made by Europe and its associations namely the Council of Europe with its legislative activity and the European Court of Human Rights with its jurisprudence by which it showed that it fulfilled its obligations regarding the protection of human rights and fundamental freedoms. In the normative activity of the Council of Europe by which it regulates human rights and fundamental freedoms, certainly the most significant place in the nomenclature of its legal acts is held by its Convention for the Protection of Human Rights and Fundamental Freedoms. However, this, like many other international legal acts, suffers in terms of general formulation, principles and standards by which its content is not precisely and entirely defined. To achieve the aims and goals of the very Convention which are linked to the development, achievement and protection of human rights and fundamental freedoms and on this basis contribute to achieving the common values and aims emerging from commonly inherited political tradition, ideals of freedom and rule of law, the Council of Europe could not rest at the normative level. Instead, it established the European Court of Human Rights. By this very normative formulation, the Convention has primarily regulated achieving and protecting human rights, setting itself as the law and obligations of member states, and then regulated subsidiarily through the supervision of the European Court. In the implementation of the mentioned tasks, Council of Europe has set its members and the European Court itself the imperative goal which must ensure quality protection of human rights and fundamental freedoms. This is contained in the demand that human rights and fundamental freedoms cannot only be protected formally, but their real protection mist be ensured as well. In implementing protection of the Convention established by human rights and fundamental freedoms, the European Court very quickly encountered a range of problems emerging from the general and insufficiently determined individual norms. The European Court was under pressure from the demand that it has to in its activity ensure effective, both formal and real protection of human rights and fundamental freedoms. So, it applied court activism and methods of evolving interpretation of convention contents starting from the ideals and values expressed in the very preamble of the Convention. It thus began to take the stance which expressed what it understood to be the content of certain rights and fundamental freedoms established by the convention. Such activity by the Court had and has significant influence on everyone’s activities, in particular constitutional courts in the development of offering quality protection of human rights and fundamental freedoms. This paper attempts to differentiate between discretionary grades in procedure and decision making in administrative bodies from, on the one hand, methods of free interpretation of legal norms and regulations and, on the other hand, from judicial activism. Of course, it also attempts to demonstrate the common characteristics which link the mentioned procedures of administrative and judicial bodies, and the interpretation of legal norms and regulations. Furthermore, an attempt has been made to briefly demonstrate the development of judicial activism, and then to show the most present forms of its manifestation in the practice of the European Court and Constitutional Court for Human Rights in the Republic of Croatia and some of the aspects of mutual influence. Also, this paper deals with the advantages and disadvantages of judicial activism, particularly from the aspect of preserving fundamental lines of separation between legislative and judicial powers and the dangers that the application of exaggerated judicial activism does not overstep this line and that judicial powers do not begin to interfere with and begin to take the legislative prerogative.
