Rada Evropy a Evropské právo – právní rozbor

The subject of the study is a legal analysis of the Council of Europe and its activities including the creation of legal instruments, by means of relevant legal acts and practice. The legal analysis of the Council of Europe is based on formal sources, i.e. the statute and additional protocols Innovating statutory matters of the organs of the Council of Europe. Of the same importance are organs of implementation authorized by the statute which actualize the interpretation of the statute. This actualizing practice manifests Itself in different forms. Sometimes it is an ad hoc decision which does not aim at a regulation of future situations, has not any normative strength, but creates a precedent and contributes to creating a certain practice (case law). In other cases a resolution adopted by a statutory organ has a form of a regulative leading to an amendment of all future cases of the same kind. Such a resolution may either supplement the text of the statute or derogate its so far existing interpretation. Also the processes of formulating and concluding European Conventions and means for controlling their implementation contribute to the development and actualization of the principle treaties. The Council of Europe aims at goals which themselves represent a process. This excludes a final shape of the Council of Europe or its static character. The practice of the statutory organs of the Council of Europe is based not only on the written law but also on a concrete political reality and thus provides an actual interpretation of the statute. This application of law, doubtlessly influenced by the Anglosaxon legal practice, makes from the Council of Europe a vivid organism. The effectivity of its activities is assured not only by the statute and its amendments but also by the acts of organs adopted on the basis of the statute, recommendations and resolutions of a more general nature, and by the practice of statutory organs, above all by deciding concrete cases. The Council of Europe has not a direct legislative jurisdiction with regard to member states. However, in the course of 40 years it has established a legislative system which now includes 141 international conventions, agreements an protocols. The conventions are not norms directly applicable in internal law, in contrary to the regulations of the European Communities. They are acts of international law of treaties, binding the states which have ratified them. They require from the states an implementation through domestic measures. From the total number of 141 conventions more than two thirds have been ratified by the required number of states. The politically most important instrument – The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) – binds all member states of the Council of Europe. The purpose of the conventions is to realize the basic goals of the Council of Europe – the protection of human rights and freedoms of individuals in a pluralistic democratic society and the rule of law. Their Importance is not only a matter of the corresponding legal provisions but also of an effective judicial or parajudicial control of the required harmony of the national, judicial and administrative practice. The decisions of the European Court of Human Rights as well as of other organs of the Council of Europe create a wide interpretation case law enabling actualization and development of the “European Law”. If Czechoslovakia is to participate in this desirable unification process, it must connect its membership in the Council of Europe with a ratification of many European conventions, especially those which represent the unified standard of the European protection of human rights. In the process of ratifying these instruments it is necessary to examine the whole national legal order and to attain its harmony with the permanently developing European legislation. It Is the task of Czechoslovak judicial and administrative organs to be concerned for a harmonization of the domestic legislation protecting an individual with European standards for the protection of human rights. This task is of primary importance not only because thus international sanctions will be avoided but because it will effectively help Czechoslovakia to return to Europe.