The ECHR has to judge sensitive cases at national level such as the Vincent Lambert case (a French case about euthanasia), or abortion cases – which is not legal in all European countries; or cases about medically-assisted procreation and surrogate motherhood and their judicial consequences.
Nevertheless, it is rather obvious that the Court has less and less prerogatives to take sides in those controversial cases. The insert of the subsidiarity principle in the new protocols and the preamble to the Convention prevents the Court from taking ambitious decisions.
The ECHR gives priority to individual rights over collective values. Is it a wise choice ?
The change from human beings as object of law to human being as subject of law pushed the ECHR to develop a direct approach to conflict resolution. It is obviously problematic because the Court is confronted with conflicts between collective and individual approach of the same rights. As an example we can mention cases about the right to dignity: when someone asks for euthanasia to die with dignity, whereas a more collective (societal) approach of dignity commands to not allow euthanasia.
The Court of Justice of the European Union (CJEU) regards the defence of values differently. What can you say about the respective methods of both Courts?
The CJEU appears quite audacious in the defence of values and rights within its own system. As an example, the CJEU can recognize a value that has been recognised previoulsy in only one or two European legal systems. The ECHR appears more shy than the CJEU because it prefers to highlight the principle of subsidiarity and the margin of appreciation of member states.
Are values in the ECHR’s case law similar or different than those protected by national constitutions ?
Some values are very similar between the ECHR’s case law and national constitutions, such as human dignity, respect for human life, democracy, and also the rule of law. But some are different like French values (fraternity, solidarity, secularism) or religious values contained in some constitutional texts.
Charlotte Blanc-Fily holds a PhD in public law from the University of Montpellier.