Meandry demokracji i dobrej wiary w systemie europejskiej konwencji praw człowieka - w poszukiwaniu zdrowego nurtu

Abstrakt

The european Convention on Human rights specifically refers to the category of democracy twice, mentioning in the preamble the “truly democratic political system” and adopting the test of “necessity in a democratic society” in the mechanism for the limitation of the use of human rights. The European Court of Human Rights has repeatedly indicated the importance of democracy for the realization of conventionally protected rights, associating it mainly with the implementation of rights under Articles 9–11 of the Convention, and above all with guaranteeing free elections, as well as active and passive electoral law. The role of democracy is particularly clear in the context of the abuse of law or the abuse of goals which the restrictions of rights are supposed to serve to (Articles 17 and 18). The Author calls this a “life-saving circle of democracy”, which is supposed to protect democracy against its exploitation against human rights, especially when the Tribunal – credulously and too abundantly – presumes the defendant’s good faith, which can undesirably result in shifting the burden of proof to the applicant, even in the areas covered by the full and exclusive competence and knowledge of the state. Similarly, in the Author’s opinion, the Court is too eager to use the assumption of compliance with the Convention and good faith of the European Union, whereas good faith is a sacred duty of the state, the implementation of which should be assessed by the Court while considering the complaints it receives, not forgetting that the criterion of good faith is an important element of the basic international law principle pacta sunt servanda.