INTRODUCTION

The purpose of this chapter is to assess the extent to which the Strasbourg case law adequately implements the constitutional principles discussed in the previous chapter, particularly the principle of ‘priority-to-rights’. However, some provisions have been ignored because their application is relatively uncontroversial, because they do not raise sharp constitutional questions, or because they have simply not yet generated enough judgments to warrant inclusion. Bearing in mind that the Strasbourg case law does not establish ‘authorities’ for ‘propositions of law’ in anything like the same sense as judicial decisions in common law systems, cases relating to those provisions which are discussed here were selected because they illustrate how well, or how badly, the Strasbourg institutions have applied the Convention's inherent constitution. Other examples could just as readily have been used for the same purpose.

The framework for the following discussion is based on the formally distinct clusters of Convention provisions, derived from the priority principle, which were distinguished in the previous chapter. But these categories are not hermetically sealed. For example, on account of the formal characteristics of Article 4(2) and (3), the right not to be required to perform forced or compulsory labour could be regarded as a ‘negatively defined’ right (as it was in Chapter 4), although it is, in effect, a ‘specially protected’ right like those in Articles 3, 4(1) and 7(1), hence its inclusion in this section here.