Regional Challenges in Implementation of European Convention on Human Rights: Lithuanian Perspective

Abstract

The European region encompasses countries with a different historical past, consequently, entailing a variety of political, legal, and cultural traditions. Despite the general commitment to the same principles, human rights and fundamental freedoms under the European Convention on Human Rights, the actual situation is marked by disputes and different approaches towards the assumed obligations occurring on both the political and constitutional level. The article addresses two main types of challenges concerning the implementation of the Convention on the level covering both the inter partes and erga omnes effects of the judgments adopted in Strasbourg. The first is the rise of political populism that is usually directed against the European standards of human rights. The second is the insufficient observance of the principle of subsidiarity by the European Court of Human Rights in some cases sensitive to the core elements of national identity of certain states, in particular those from the Central Europe. The lack of understanding of particularities of those states who share the legacy of double totalitarianism can reduce the legitimacy of the ECtHR judgments within those societies and, by the same token, strengthen the anti-European populist ideas. The article deals with the issue how constitutional courts can respond to those challenges and contribute to the implementation of the ECtHR judgments. It provides the example of the Lithuanian Constitutional Court in deciding the landmark cases relevant to the Convention law. From that example one can see that openness and determination to follow the European standards, even though the Constitution provides for its superiority over the Convention law, are the best means to harmonise two legal orders from the national perspective. The article also argues that the application of the European consensus criterion by the ECtHR should be based on a clear methodology and the subsidiary nature of the Convention mechanism should be retained. The proper respect to national, in particular constitutional, jurisdiction without compromising the Convention values is also required in increasing the legitimacy and implementation of the ECtHR judgments.