The impact of the fundamental rights case law of the European Court of Human Rights and the European Court of Justice on the domestic separation of powers

The separation of powers is a true hallmark of any liberal democracy, governed by the rule of law. The separation-of-powers theory argues that by distributing government power over various state bodies, these bodies will keep each other in check, thereby preventing the abuse and arbitrary use of this power. The most common understanding of the theory dictates that power be dispersed over three branches – the legislative branch, the executive branch and the judicial branch – each with its own function. Furthermore this separation is underpinned by a system of checks and balances. The separation of powers is traditionally seen as a national concept, where every state decides for itself on how to devise its separation-of-powers system, based on its specific historical, geographical, economical and sociological background. In this era of multilevel constitutionalism, however, the predominantly national nature of the separation of powers increasingly gets put under pressure. One of the clearest examples of that, is the influence that the two highest European Courts, the European Court of Human Rights and the European Court of Justice, have on these systems. Those two Courts are increasingly asked to rule on issues of domestic separation of powers and are thus put in a position to have a direct impact on how those systems operate. Yet, despite the importance of that issue, it has so far received very little attention in legal literature. This PhD focuses on exactly that topic. The main research question is to see what impact the European Courts have on the domestic separation of powers when they rule on human rights. This broad question is divided into two more concrete questions. First, where do the European Courts get the power to rule on issues of separation of powers? Second, what do the European Courts do with this power? In order to answer these questions, the PhD starts with a theoretical framework on the principle of separation of powers. Then, it conducts an in-depth analysis of the case law of both Courts, structured on the basis of various substantive topics that can be seen as concrete expressions of the principle of separation of powers. Finally, it takes a step back and makes of an overarching analysis of the various strands of case law in order to provide an answer to the research questions.

Jaar van publicatie:2021

Trefwoorden:Doctoral thesis

Toegankelijkheid:Closed