The European Court of Human Rights (ECtHR or the Court) makes a difference in Europe. It creates standards that are applicable in the forty-seven contracting parties to the European Convention on Human Rights (ECHR or Convention). The impact of the ECtHR has been extensively explored in academic literature. The Court intervenes in the most fundamental, sensitive and controversial issues that the European nations debate; it sets the standards for how European authorities should treat people under their jurisdiction; it creates and maintains the meaning of European human rights and develops the legal ideology of human rights protection. According to the Court, the Convention is a constitutional instrument of European public order. Having said all this, there are limits to what the Court can do and how far it can intervene within European public order. The key questions that this book is posing are what exactly does European public order mean and how can it be shaped; and, more importantly, should an institution like the ECtHR aim to shape it?

The European Court of Human Rights (ECtHR or Court) has used the term ‘European public order’ in more than a hundred decisions and judgments. This number suggests that its deployment is not a coincidence; the Court seemingly relies on European public order. The Grand Chamber of the ECtHR has been referring to European public order more and more frequently in recent years. However, in none of these judgments has the Court explained what European public order actually means and how it can be conceptualised.

The views of the ECtHR judges influence the interpretation of the European Convention on Human Rights (ECHR) and are also crucial for resolving the existential questions of the Court’s functionality and development. The practice of the ECtHR is such that the individual views of the judges are rarely explicitly expressed in the judgments. The voices of individual judges can be identified from their dissenting and concurring opinions but, even then, their views are often expressed in relation to particular cases and rarely cover broad theoretical questions. This chapter predominantly listens to the voices of the ECtHR judges; it is based on a set of interviews with the sitting judges. The preliminary observation is that these voices are not singing in ‘unison’; they are quite ‘polyphonic’, competing with and contradicting each other. However, this is not surprising and does not make discovering and analysing the views from the bench any less interesting or useful.

In the previous chapters, I have shown that the European Court of Human Rights (ECtHR or Court) should refrain from relying on the legal concept of European public order in its reasoning as it is vague and unprecise and distorts the meaning of the function of the Court. However, European public order can be useful as an analytical concept describing the activities of the Court. This chapter looks at European public order as an analytical concept. In order to influence European public order in that sense, it seems that the Court needs to be able to formulate rules of general application. These rules should comply with a few basic conditions. First, they should be abstract enough to be applicable beyond the individual circumstances of the case and, second, they should not deal with a problem that is exclusive to a particular member state. On top of that the Court should be able to ensure that these rules are properly implemented; thus, the Court’s increased role on the stage of implementation is a sign of a deeper involvement with European public order.

This monograph aims to establish whether the European Court of Human Rights (the ECtHR or the Court) can effectively shape European public order. The Court claims that the European Convention on Human Rights (the ECHR or the Convention) is the constitutional instrument of European public order; since the Court is the sole official interpreter of the Convention, it is implied that the Court’s role is to build European public order. Moreover, some ECtHR judges in their dissenting opinions or extrajudicial writing have suggested just that. The present chapter examines whether this is indeed the case, that is, whether the regulation of European public order is one of the functions that the ECtHR has been entrusted with and what this function might entail.

This chapter argues that the term ‘European public order’ is vague and indeterminate. As a consequence, the ECtHR’s claims that the ECHR is a ‘constitutional instrument of European Public Order’ can have many meanings, and its application in the case law is problematic. This chapter explains why defining European public order is virtually impossible. Unsurprisingly, the ECtHR has failed to define it or to provide an approximate list of its components, and a clear definition of public order is yet to be developed in legal scholarship. This chapter builds upon the argument made in Chapter 2 that the formula ‘European public order’ is so abstract and open-ended that it can be used to support mutually exclusive arguments. For instance, qualified rights can be limited to protect public order; at the same time, the Court can broaden the scope of those same rights because they are an essential part of European public order. These two options, while in contradiction, could be at stake in the same case. This dilemma illustrates the inherent challenge of vague legal notions to the rule of law and legal certainty.

In this monograph, I tried to answer the question of whether the European Court of Human Rights (ECtHR, Court) can shape European public order. My answer to this question is a qualified ‘no’. The key reasons for that are twofold. The first reason is the unclear and illusive nature and definition of European public order. In other words, it is almost impossible to define this formula on a level that can be useful in adjudication. The second reason is that the Court was arguably not created to shape European public order. In any event, there is no agreement among the stakeholders as to what the meta-function of the ECtHR is. The whole monograph examined European public order from these two distinct but interrelated perspectives.