PT Journal
AU van der Sloot, B
TI The Quality of Law: How the European Court of Human Rights gradually became a European Constitutional Court for privacy cases
SO JIPITEC
PY 2020
BP 160
EP 185
VL 11
IS 2
DE Article 8 ECHR; ECtHR; Minimum Requirements of Law; Quality of Law; Rule of Law
AB Until very recently, the European Court of Human Rights was willing to assess whether Member States’ executive branch had operated on a legal basis, whether national courts had struck a fair balance when adjudicating cases, and whether Member States had a positive obligation to ensure adequate protection of citizens’ human rights. One thing it did not,  assess however, and that was scrutinising laws and policies as such, assessing whether Member States’ legislative branch had respected the principles of the rule of law and the minimum requirements of good law-making. That is, until recently. Propelled by cases revolving around mass surveillance activities, in just a couple small number of years, the Court has undergone a revolutionary transformation and now formally assesses the quality of Member States’ laws and even advises Member States’ legislative branch on how to amend its legal system in order to be Convention-compliant. Doing so, it has gradually turned into a European Constitutional Court, in particular for privacy cases.
ER