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The Principle Of Primarity (Substantive Aspect)

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Chapter Summary

This chapter addresses the fairly abstract question whether the Contracting Parties in the exercise of their primary obligation to implement the European Court of Human Rights (ECHR) in domestic law may be obligated to strike a different substantive balance insofar as the Court's review is affected by the principle of subsidiarity. Or put differently, does the nature of the Courts review affected as it is by the direct democratic legitimation of national authorities that are in direct and continuous contact with the vital forces of their countries, and/or the domestic authorities better understanding of the circumstances and life of the society entail an obligation of domestic authorities to strike the balance differently in order to neutralize the subsidiary nature of the Courts review? The complex interaction between substantive principles and formal principles makes it appropriate to view the primarity principle as the flip side of the subsidiarity principle.

Keywords: European Court of Human Rights (ECHR); formal principle; primarity; subsidiarity; substantive principle



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