CYIL 2014

245

WHAT IS NOT RIGHT IN HUMAN RIGHTS PROTECTION?

the entirety of the human being itself (physical, psychological and spiritual integrity),

but also his/her integration in society. Thus, a human being, being conceived and

seen in this dual dimension cannot be thus considered totally separate from society

but has to be regarded as an entire part of it.

This introduction had to be presented in order to show that the protection of

human being and human rights is designed as one system and should be understand

as such. The system deals with an overall (holistic) perception of the human being. If

this perception is not maintained and observed, soon there can be a misperception and

misunderstanding of human rights protection. The human being may (and must) thus

be regarded in its entirety and uniqueness and so protected as such. If protection is

granted only to some parts of a human being’s personality (and not to its entirety) and

thus is strengthening only some aspects of this personality while weakening others, the

human being’s personality is perceived in a deformative or distorted way.

The question that soon arises is whether this perception of human rights and

holistic perception of human dignity is also applied in judgments of the European

Court of Human Rights (hereinafter “ECtHR” or “the Court”). On this issue, we

present three cases held before the Court that can show some doubtful elements as

being prejudicial to this overall conception of human rights and human dignity. They

have been chosen because all are related to a rather new or “evolutive” interpretation

of the articles of the Convention (right to private and family life), and all are rather

recent cases. The point and the purpose of this text are not to analyse these cases in

order to show that the Court’s reasoning and argumentation is not correct. Rather,

the aim is to show that by reasoning and arguing in this manner the Court is not able

to and thus cannot maintain the concept of human dignity in an absolute frame. And

it means that this concept can sooner or later be relativized.

In the majority of cases and judgments of the ECtHR, the discordance in this

entirety of the perception of the human being is not apparent and is rather missing.

These cases relate to obvious interferences of State authorities with human rights. But

there are some cases where these ethical, philosophical, sometimes religious, but in

totality moral aspects are so important (even decisive) and where it is very essential

to keep in mind and observe this overall conception. This signifies assessing the case

through this criterion of a human being in its entirety. This means to not only see

the petitioner as a real human being (implemented in a social environment), but also

to see the petitioner as a human being making and being part of the whole society.

Thus, a decision about a violation of human rights (the Convention) should be, in

this perception, a decision about the society. (If one person – a human being – and

member of a society was mistreated by State authorities, this means that the whole

society was mistreated.

) In this overall perception of the human being we are far

An individual is a part of society not only by his sole existence in it but by his interconnection with it.

The society is not thus a mere sum of individuals but an “original“ organism of its own.

This conclusion is far from being a legal conclusion on common responsibility or common social good.

It rather poses some philosophical aspects of an overall perception of human being.