The European Court of Human Rights has, since long conference of European Constitutional Courts and their work, it always follows with keen interest. It has observer status, but it does not mean she has no hand in the field of European constitutional justice. Instead, according to the conception I have of her role, the European Court works in partnership with national constitutional courts and courts of equivalent jurisdiction. Whether or not itself a "constitutional court" is rather a matter of semantics. We can still qualify as quasi-constitutional court, sui generis. The questions she is asked to decide constitutional issues are certainly as far as they concern the fundamental rights of European citizens. There is no doubt that it is more domestic judicial authorities themselves, particularly in courses with constitutional authority, it is primarily to resolve these issues, as is the subsidiary nature of the mechanism of protection established by the European Convention of Human Rights. European control is a device designed to catch issues that escape the scrutiny of the national constitutional bodies.
It is the theory. It is different in practice and I would say there are problems on both sides. On the one hand, effectiveness, or even the existence of remedies in the Contracting States regarding alleged violations of the rights and freedoms conventional poses. On the other hand, the Strasbourg Court may sometimes be difficult to resist the temptation to go too deeply into matters of fact and law, to become the famous "fourth instance" that she always defends itself be. It is when the complaints have not been articulated in the national proceedings, or have not been so effective that the Court is somewhat of a dilemma.
2. BASICS OF THE EUROPEAN COURT OF HUMAN RIGHTS
The European Convention on Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950. It guarantees everyone the rights and freedoms that are required to meet members of the Council of Europe which have ratified it. Currently, 41 states have pledged to respect its terms.
11 "Protocols" came complete it. The Convention is applicable in France since May 4, 1974. It is self-executing, that is to say, it belongs to the French courts (tribunals and courts) to enforce it.
2.1 RIGHTS ENSURED BY THE EUROPEAN COURT OF HUMAN RIGHTS
The rights and freedoms are guaranteed by the Convention and its Protocols. The Convention and its Additional Protocols stipulate the rights and freedoms:
THE PHYSICAL FREEDOM
- The right to life (Article 2 supplemented by the Protocol 6 on the abolition of the death penalty);
- prohibition of torture and inhuman or degrading treatment or punishment (Article 3);
- prohibition of slavery, servitude and forced labor (Article 4);
- The right to liberty and security: are provided limited circumstances authorized deprivation of liberty, the guarantees in case of arbitrary arrest or detention (Article 5), the prohibition of imprisonment for debts (Article 1 Protocol 4), the safeguards relating to expulsion of aliens (Article 1 of Protocol 7);
- freedom of movement (Articles 2-4 of Protocol 4).
THE FOUR FREEDOMS MORAL (OR INTELLECTUAL)
- The right to respect for private and family life, home and correspondence (Article 8);
- the right to marry (article 12);
- equality between spouses (Article 5 of Protocol 7);
- freedom of thought, conscience and religion (Article 9);
- freedom of expression and information (Article 10);
- The right of assembly and association (Article 11);
- The right to free elections (Article 4, Protocol I).
THE ECONOMIC, SOCIAL AND CULTURAL RIGHTS:
- Protection of property (Article 1, Protocol I);
- The right to education (Article 2, Protocol I).
THE PRINCIPLES OF THE RULE OF LAW AND PROPER FUNCTIONING OF JUSTICE
- The right to a fair trial: public hearings, trial within a reasonable time by an independent and impartial...