The interpretation of the European Convention on Human Rights
Maša Marochini
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Abstract
The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges’ of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.
Key takeaways
- This article discusses and analyses the interpretative principles used by the Court when interpreting the Convention since it was the use of various interpretative principles that allowed the judges of the Court to extend the scope of certain Convention rights.
- The Convention itself gives no guidance on how the Court should interpret its provisions.
- The margin of appreciation doctrine has been used by the Court regarding numerous issues.
- and it has been used widely by the Court in order to interpret a number of concepts from the Convention.
- By requiring states to take positive and effective measures to secure the Convention rights, even the ones not explicitly included in the Convention, the Court used the doctrine of effectiveness.
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Interpretation of the European Convention on Human Rights
Universal Civil Jurisdiction, 2020
The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges' of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.
Fundamental Rights Seen Through the “Pluralistic Interpretive Box”: The National, European Court of Human Rights, and Court of Justice of the European Union PerspectiveArticle Text
Central European Journal of Comparative Law | Volume II ■ 2021, 2021
Interpretation, or the judicial understanding of the legal acts in the process of protection of the human rights, is becoming increasingly interesting and controversial, both from an aspect of the applied interpretation technique (which interpretation method is applied by the judge in a specific case and why), as well as from an aspect of the legal opportunism/legitimacy of the interpretation. It is a fact that so far, neither the European, nor the national legal theories and practice have offered coordinated systematic approach regarding the application of the legal interpretation methods, which often leads to different interpretation of the legal norms by the national and the European courts when applied in similar or identical legal situations for protection of the human rights. It is considered that the different interpretation of the legal documents by the judges endangers the protection of the human rights, but also the legal security of the citizens. Judicial discretion in choosing an interpretive method in a particular case by the national, or by the courts in Luxembourg and Strasbourg further complicates the already complex procedure of protection of human rights, which directly creates new problems instead of solving the existing ones. The “pluralistic interpretive box” is continuously filled with new and new cases from different approaches by different courts in the process of protection of human rights, which leads to increased scientific interest for a more detailed consideration of this issue. The growing scientific interest in the impact of the legal interpretation on the (non) equality of the human rights protection is the main reason for writing this paper, in which I will try to explain the connection between the three different, but still related issues encountered in the multilevel system of human rights protection in Europe. The first issue addressed in the paper concerns the most common methods of legal interpretation applied in the national and European court proceedings. The second issue concerns the search for a consistent answer to whether and how much legitimacy and legality the court decisions made by applying judicial discretion have when the interpretive method in judicial decision-making is chosen, and the third issue refers to finding an answer to the impact of such court decisions on the functionality and efficiency of the multi-level system of protection of human rights, that is, to what extent such court decisions have a positive or negative effect on the human rights protection. Given that each national court has its own instruments and techniques of interpretation by which the judges make their decisions, the need to study their causality and effectiveness is more than evident
Evaluative Concepts of the European Convention on Human Rights: Current Issues of Application as Exemplified by Article 6
Krytyka Prawa, 2022
The article is devoted to the study of the correct application of the evaluative con cepts contained in the norms of the Convention for the Protection of Human Rights and Fundamental Freedoms. Attention is drawn to certain difficulties in the appli cation of the evaluative norms in the Convention: despite their objective necessity and usefulness, they create a room for the law enforcement entity's own discretion up to subjectivism in resolving specific cases; they serve as an objective obstacle to the unification of the case law of the ECtHR and this creates preconditions for unequal implementation of ECtHR judgments in the national legal order; they cause the risk of errors in the application of the provisions of the Convention by the competent authorities of the Contracting States. It is established that the application of legal norms containing evaluative concepts is challenging not only owing to the specific properties of the evaluative concepts themselves, but also due to the peculiarities of adjudication by the ECtHR when applying the evaluative norms. The relevant case law of the ECtHR as well as examples of national legislation are analysed in support of these theoretical conclusions. Since the lack of uniform application of the evalua tive norms of the Convention causes divergent use of the ECtHR's judgments in the domestic judicial system, it is advised to follow a number of rules for reasoning of decisions by the domestic court. These rules will serve as a certain guarantee against ambiguous implementa tion of ECtHR judgments at the national level.
The European Convention and Human Rights in the Judgements of the EU Courts
Multicentrism as an Emerging Paradigm in Legal Theory, M. Zirk-Sadowski, M. Golecki, B. Wojciechowski, (red.) Peter Lang 2009, (ISBN 978-3-631-59563-3), 2009
Protection of human rights is the European Community (EC)/European Union (EU) is a complicated issue which can be analyzed from the dogmatic, theoretical and judgmental perspective. The paper covers deliberation on the European Convention for the Protection of Human Rights and Fundamental Freedoms in the context of its application by EU courts. Considering an unclear relation of the Convention to the European Community’s and European Union’s legal system the question the EU courts deal with is rather whether and to what extend it may constitute a basis for the decision rather, than how to apply it. It is also worthwhile to differentiate the terms related to the matter of “human rights”: the human rights themselves as a category of shaped by the Convention and European Court of Human Rights (ECHR); the constitutional freedoms arisen from the domestic legal systems and the fundamental rights linked to the system of European Community and case-law of the European Court of Justice (ECJ). Those various terms may bring and quite often do bring different understandings of the content scope of individual rights in the judgments of ECHR and ECJ. Since recognizing the human rights as a matter protected by the legal system of European Communities, the ECJ while answering the question where the “fundamental rights” can be derived from and what is the exact scope in the concrete case is constantly balancing between the respect for judgmental line of ECHR and the principle of autonomy of European Community/European Union system. However, the recognition of fundamental rights as a part of general principles of Community law (but not a written treaty law, though) did not solve the law-making issue on the subject of human rights. It also does not solve the question of possible conflict of rules on that matter. The liaisons between the system of European Convention, the EC law and the domestic legal systems, the new concept of sovereignty particularly emphasize the fact that not only contemporary legal theory is quite far form Kelsen’s monism of legal system, but also that in human rights cases the “three-dimentional” point of view is an existing standard and co-existence, co-inspiration and cooperation seems to be an unavoidable issue.
The Three Traditional Approaches to Treaty Interpretation: A Current Application to the European Court of Human Rights
SSRN Electronic Journal, 2018
The Vienna Convention on the Law of Treaties sets the rules of treaty interpretation in articles 31-33. Yet these rules are quite vague, and they leave a lot of room for judicial discretion. The European Court of Human Rights ("ECHR" or "the Court") has developed its own version of these rules of interpretation-a version that tracks the three traditional approaches to treaty interpretation: the textual approach, the subjective approach, and the teleological approach. Looking at the practice of the ECHR through the lens of these three traditional approaches highlights the logic of some of the court's interpretive choices, including its doctrine of deference: the Margin of Appreciation.
Principle “Rule of Law” or “Rechtsstaatlichkeit” as basis for Human Rights Protection in European Union Law, Summer Academy “Rule of Law, Human Rights and European union”-Book of Proceedings, Skoplje 2012, p. 11-35
The Rule of Law and human rights are guaranteed by a multilevel approach (see Article 6 TEU), in terms of International Law together by national constitutions, human right acts and international conventions such as the European Convention on Human Rights and Fundamental Freedoms.3 With the EU a supranational player takes an additional role. The EU and its understanding of EU Law as autonomous source and supremacy towards member states law a higher complexity of rules and decision making occurs. The question is as far as basic rights are strengthened? In any case these questions are relevant for the member and candidate states in South East Europe because primary law including the European Chapter of Fundamental Rights is part of the acquis communautaire, according to Article 20 IV TEU condition for accession to the EU. To understand the structure and impact of basic rights in the EU the following Article is structured in 3 chapters. Chapter 1 serves as basis to explain that these rights are genuinely and normatively linked to each other in EU Law. Both are expressively mentioned in Title I of the Treaties of Lisbon and the ECFR which demonstrates their importance and moreover an implementation in the principal structure of EU Law. For understanding the principal structure of EU Law and to cope with the Rule of Law as well as basic rights appropriately a basic knowledge of legal dogmatic with its methods of interpretation is required. Due to the specific structure of EU Law, Chapter 2 explains the principle of supremacy by analysing the “Solange” idea as created by the German Constitutional Court. “Solange” is more and more a principal for understanding and executing competencies. At the latest this has to be considered for the protection of Human Rights as well since the European Court for Protection of Human rights in its decisions refers to the “Solange” idea. An analysis of Article 53 ECFR shows that the EU legislator also takes the “Solange” idea into account. Thus, in Chapter 3 different questions will be raised provoked by this multilevel approach of national constitutions, international conventions and supranational rights, to find our if the different jurisdiction of the states, the EU and the ECHR have to be aligned, or at least competencies clarified.
THE EUROPEAN CONVENTION OF HUMAN RIGHTS AND THE EUROPEAN UNION- SITUATIONS, DILEMMAS, CHALLENGES…
Although there are numerous dilemmas, analyses and considerations concerning the EU's accession to the ECHR, the most general position is that it represents a huge step ahead in the development of the human rights within the EU, and issue to which the EU has been paying significant importance since the early seventies of the last century. Namely, the first general reference to the ECtHR can be found in the Nold case of 1973, as well as in the Rutili decision , further confirmed in Johnston and Heylens . The emergence and development of human rights protection in the Union must be attributed to a large extent to the ECJ’s “activist” case law, and to its gradual judicial dialogue with the ECtHR (Harpaz, 2009, 32, 126). It was only in the late eighties that EU Member States started considering the insertion of human rights provision in EU primary law (Rodean, 2012). The Single European Act (1986) contained a reference to human rights (and to the ECHR), at least in its preamble. The Amsterdam Treaty (1997) referred to respect for human rights as of the principles on which the Union is founded, and in 2000, the EU adopted its own comprehensive catalogue of human rights. Today, this practically unanimously confirmed need for EU's joining to the ECHR finds its legal grounds in the Article 59, paragraph 2 of the European Convention of Human Rights, which says that: "The EU can join this Convention", and in context of the Protocol 14 of the ECHR, put into force on 1 June 2010. Although the fundamental rights, as a general principle of the European Community Law, i.e. the EU Law, are recognised and enjoy protection by the European Court of Justice of the EU, already in 1960, through the known cases of Stauder and International Handelsgesellschaft , it is still considered that it was with the Lisbon Treaty that the EU provided maximum protection of these rights. Namely, according to this Treaty, and in accordance with the EU Charter for Fundamental Rights, the human rights are more deeply and more profoundly determined as EU's core and essential values. The new establishment of the protection of the fundamental rights in Europe opened important issues and dilemmas about the relations between the EU legal order, the EU Charter and the European Court of Justice on one hand, and the ECHR, and the European Court of Human Rights case law, on the other. This paper will analyse the current issues related with the recent negative opinion issued by the ECJ concerning the draft-agreement for the EU accession to the ECHR despite the vast consensus for its acceptance by the Member States and by the European institutions that were present at the hearing on 5-6 May 2014. The debate on the role of the ECHR in EU law, and on the possible accession of the EU to the Convention, has actually intensified throughout the EU integration process.
Is there a European law of human rights? Diversity in the interpretation and application of the ECHR by the European organs and the domestic courts of the member states
1994
Added to that, there is an apparent paradox in the picture that first comes out of a listing of the case books as it may make us wonder whether it is not obvious at this point already that there is one European "common law" of human rights, created by the European Court of Human Rights, shared by all the member states of the Council of Europe and which is more or less contained in all of these primary sources. But even these sources alone disclose that this is an extremely simplified depiction. The closer we look at the case law, the more clearly its complexities stand out and a simple answer becomes more and more elusive. This understanding is reinforced by how the ECHR is applied (or not) in domestic law. The scrutiny of the texts of the relevant cases will proceed, therefore, by looking at the appropriate domestic case law of the United Kingdom, France and Italy. Although the investigation will discuss the position of the ECHR in relation to municipal law, the main concern will be to establish the ability of the ECHR to influence domestic legal interpretation. In addition, there will also be a study of the underlying reasoning in the case law of Strasbourg and a very brief inquiry into the discussions that led to the creation of the Council of Europe and particularly, the debates in the run-up to the ECHR.19 the Library of the Council of Europe in Strasbourg, keeps a comprehensive catalogue on published material on European human rights organised according to the articles of the ECHR and its Protocols.-20-A metaphor for the operation of human rights law in Europe Even where the population is much like that of Britain, a transplanted British institution will probably grow in a different manner because the soil is different22 To the mass of Americans resident in the island [of Puerto Rico]and this is particularly true of the lawyersthe entire system of law and government, of domestic and public institutions, was bad simply because it was different from our own ... The only way to make Americans of the Porto Ricans, it was argued, was to give them, without delay, the system of law of one of our States.24 37Sir Humphrey Waldock," The Effectiveness of the System set up by the European Convention on Human Rights", (1980) 1 HRLJ 1,11. 38Sir Humphrey Waldock, op. cit., 12.
The Reform of the European Court of Human Rights – The ongoing process
The expansion of the Council of Europe by the accession of new states to the Convention after the fall of the Berlin wall in 1989 has brought the caseload of the European Court of Human Rights (Court) at a critical stage putting at risk its effectiveness. The Council of Europe has undertaken various reforms to deal with the Court’s caseload. Protocol No.14, 15, and 16 are analyzed in this paper. Protocol No.14 amends the control system of the Convention by reforming the functioning of the Court. The paper will aim to analyze the reform made with the aim of clarifying its aspects such as the new filtering mechanism, the new admissibility criterion, etc. aimed at increasing the efficiency and efficacy of the Court, in order for the individuals and the national institutions to use the system effectively. Following, the changes brought by the additional Protocols No.15 and 16 are examined. At the core of the innovations of these two Protocols is the effective operation of the principle of subsidiarity within the overall Convention system and the increasing of the application and protection of the rights and freedoms at the domestic level.
Voices from the European Court of Human Rights
Netherlands Quarterly of Human Rights, 2009
Th e future of the Strasbourg Court, a large and very busy court, has been the subject of much discussion. Th e capacity of the Court to handle the volume of admissible cases remains a signifi cant challenge, and is made more diffi cult by the absence of ratifi cation by all contracting parties of Protocol No. 14. Ten years aft er the establishment of the new permanent court, nine judges refl ected on aspects of the work of the Court and the challenges it faces. Th e main purpose of this article is to put into the public domain some extracts from those interviews, which cover a wide range of issues. Th e voices from the Court are off ered in the context of an argument that the contracting parties need to recognise the constitutional nature of the Strasbourg Court, and should be, but probably are not, willing to change the admissibility rules to make determination by the Strasbourg Court a matter of discretion rather than entitlement.
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