In this chapter, I first examine how the rule of law has been defined in legal theory, and how it has been distinguished from the rule by law, which is a distortion thereof (Section 3.1). Second, I assess how the rule of law has been conceptualised in the context of the European Union, as this book focuses primarily on the EU legal order (Section 3.2). In this regard, I also draw on the acquis of the Council of Europe. The Council of Europe is a distinct jurisdictional order, yet it heavily influenced the ‘EU’ conceptualisation of the rule of law, and the EU regularly relies on Council of Europe sources in its own legal practices. Finally, I draw on these findings to identify the rule of law’s core principles and to distil the concrete requirements that public authorities must fulfil to comply therewith (Section 3.3). Identifying these requirements – and the inherent challenges to achieve them – will subsequently allow me to build a normative analytical framework that I can use as a benchmark in Chapter 4 to assess how algorithmic regulation impacts the rule of law.

In an increasingly integrated Europe, state language regimes are not the only ones that matter. It is also essential to understand how they interact with supranational language regimes. As Central and Eastern European (CEE) countries worked towards and then gained European Union membership after 2000, to what extent did their state language regimes become “Europeanized”? This question is examined through the case of Romani in Slovakia. The chapter has two aims: first, to demonstrate that the concept of a language regime can be fruitfully applied to supranational entities, and second, to examine the impact of such regimes at the state level. The Council of Europe’s language regime led it to advocate for increased support of Romani, as well as increased minority language rights in member states more generally. This work became bound up in the wider dynamics of Europeanization and European pressure on CEE states. At the level of the Slovak state, official policies towards Romani were changed in response to such pressure. Implementation of such commitments was limited, however. An analysis of state treatment of Romani language in Slovakia from approximately 1998 to 2018 thus illustrates a process through which a state language regime was altered but not transformed.

Chapter 5 examines the evolving legal context and the practical effectiveness of CoE interactions with the central case study, Kosovo. Kosovo is a sui generis case, distinct from all others, but it is an appropriate case study as it has faced and, in several cases, overcome similar engagement challenges. Over more than two decades, the CoE has innovated and adapted its relationship with Kosovo, and so this chapter seeks to illustrate the pragmatism and creativity which can be employed when the political will to do so is in place. The chapter elaborates the principle of engagement on the basis of ‘functional capacity’ and the practice of monitoring substitution.

The introductory chapter establishes the central questions, the rationale and structure of the monograph noting that it is concerned with the impact of unresolved conflict and contestation on the effectiveness of Europe’s human rights protection architecture within the framework of the Council of Europe. It also highlights several limits, such as the European focus and the deliberate decision not to seek to advance any reform proposals for the European Court of Human Rights Article 1 jurisprudence. It also engages, and dismisses, the potential critique of human rights imperialism.

The book concludes with a reflection on the challenge of grey zones as being one of first principles, which represents a risk to the integrity and long-term future of the organisation. It emphasises that the populations in areas of conflict and contestation are the most vulnerable rights holders in Europe, yet the most isolated. The Council of Europe must address this systematic problem as a matter of urgency and with the decisive attention of Member States and both statutory and non-statutory actors.

The purpose of this chapter is to examine the discourses of multilingualism in the Council of Europe. More specifically, it is a study of language categories used by nation-state representatives in a debate held in the Council of Europe’s Parliamentary Assembly in 2001. I am particularly interested in how language categories are used to form language power blocs, i.e., alliances of nation-states that pursue their linguistic and cultural agendas on the international political scene. The analysis is based on a critical approach that considers the layers of historicity in which a specific discourse is embedded and to which it refers. The findings suggest that debates on the place of languages in the European curricula function as a proxy for negotiating the status and legitimacy of a nation-state on the international level. Language debates, in other words, serve as a terrain for mediating and managing Europe as a political and a geographical entity.

Emerging neurotechnology offers increasingly individualised brain information, enabling researchers to identify mental states and content. When accurate and valid, these brain-reading technologies also provide data that could be useful in criminal legal procedures, such as memory detection with EEG and the prediction of recidivism with fMRI. Yet, unlike in medicine, individuals involved in criminal cases will often be reluctant to undergo brain-reading procedures. This raises the question of whether coercive brain-reading could be permissible in criminal law. Coercive Brain-Reading in Criminal Justice examines this question in view of European human rights: the prohibition of ill treatment, the right to privacy, freedom of thought, freedom of expression, and the privilege against self-incrimination. The book argues that, at present, the established framework of human rights does not exclude coercive brain-reading. It does, however, delimit the permissible use of forensic brain-reading without valid consent. This cautionary, cutting-edge book lays a crucial foundation for understanding the future of criminal legal proceedings in a world of ever-advancing neurotechnology.

Algorithmic transparency is the basis of machine accountability and the cornerstone of policy frameworks that regulate the use of artificial intelligence techniques. The goal of algorithmic transparency is to ensure accuracy and fairness in decisions concerning individuals.AI techniques replicate bias, and as these techniques become more complex, bias becomes more difficult to detect. But the principle of algorithmic transparency remains important across a wide range of sectors. Credit determinations, employment assessments, educational tracking, as well as decisions about government benefits, border crossings, communications surveillance and even inspections in sports stadiums increasingly rely on black box techniques that produce results that are unaccountable, opaque, and often unfair. Even the organizations that rely on these methods often do not fully understand their impact or their weaknesses.

National judicial systems within the European Union (EU) face pressures toward alignment under the policy agendas for judicial cooperation connected with the Lisbon Treaty and the widespread practice of ‘transnational borrowing’ among courts. Using the CJEU and ECtHR as case studies in the phenomena of judicial culture and transnational judicial communication, this chapter explores how constitutional norms and formal policies interact with contextual influences (including informal judicial interaction and evolving national ideas and practices regarding judging and judicial organisation) to produce increasing legal alignment among the member states. In doing so, the chapter explicitly highlights the need to combine comparative legal analysis with socio-legal research methods in order to understand the evolution of constitutional law.

The European Union is sometimes described as a ‘community of values’. Is this adequate? Legally anchored civil and human rights and democratic guarantees were not the foundation upon which institutional cooperation was built. Instead they sneaked in by the back door. Especially in the early days the centrality of values was by no means obvious, and certainly contested. The search for a specific institutional ethos only became significant in the course of the 1970s. Today’s EU was not born as a community of values; instead it grew into one in a fascinating, decades-long process characterised by ambivalence and contradiction. That does not mean that values and norms played no role in earlier stages of the integration process. At the beginning of the 1950s these questions were already hotly debated, and the value-orientation is clearly reflected in the way European integration was very much understood as a contribution to securing peace. To that extent, the European project is actually inconceivable without the values that grounded and legitimised it; values and norms shaped the EC’s institutions and informal practices at very fundamental levels. But without a legally binding framework they initially remained fragile and vulnerable.

This chapter discusses the regulation of germline editing in Europe, the only region in the world to date to have set up a regulatory framework for biomedical research. First, we consider the principal contributions of the Council of Europe to this framework. After a brief introduction of the history, goals and structure of this organization, we analyse key provisions of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention) as well as its additional protocols. Relevant case law of the European Court of Human Rights related to the protection of human embryos is also taken into account. Then we turn to the European Union (EU) to examine its efforts to articulate a regulatory for biomedical research. Again, after a brief introduction to the EU, we discuss the basic elements of its framework. This includes the relevant rights included in the EU Charter of Fundamental Rights, the EU directive on the legal protection of biotechnological inventions (98/44/EC) and the EU regulation on clinical trials on medicinal products for human use (EU 536/2014), as well as significant case law of the European Court of Justice. Throughout our analysis, we highlight contradictions, gaps and unresolved issues of the current European regulatory framework, which slow down or even block scientific advancement on human germline modification in Europe. We conclude the chapter not only by pointing to the need for a public debate to address the challenges faced, but also by acknowledging the difficulties of making progress in the light of the complexity of the EU framework and the current political climate.

Chapter 4 examines the role of the Constitutional Court of the Czech Republic, which in the first decade of its operation (from 1993 to the beginning of the new millennium) dealt mainly with the protection of fundamental rights, as well as with cases concerning transitional justice. With reference to this matter, the Court was called on to rule on particularly divisive issues concerning the country’s past, such as the law on the illegitimacy of the Communist regime, the laws on the restitution of property, as well as the “lustration laws,” which were aimed at preventing individuals involved with the Communist regime, or considered to be in favor of a return to Communism, from occupying higher positions in the state apparatus for a certain period. Compared to the previous generations, a distinguishing feature of this third generation of courts is the interplay between the democratic transition, constitutional justice, and accession to the Council of Europe and the European Union.