CYIL Vol. 7, 2016

PAVEL BUREŠ

CYIL 7 ȍ2016Ȏ

1. Introduction The European Court of Human Rights in Strasbourg (hereinafter “the Court” or “ECtHR”) has established throughout its jurisprudence a principle of evolutive interpretation. 2 It has stipulated that the European Convention on Human Rights and Fundamental Freedoms (hereinafter “the Convention” or “ECHR”) is a ‘living instrument ’ and thus has to be interpreted in ‘present-day conditions ’ . 3 It has opened a clear way for the Court to react to societal changes in countries, State-Parties to the Convention. For these purposes, the Court often has recourse to a comparative technique examining the state of “common values” among members of the Council of Europe. This process is commonly labelled as the concept of European consensus. 4 This paper questions the use of the concept of European consensus by the Court for every kind of societal issue. We claim that there are issues subject to be changed through societal changes, and for these issues the Court should resort to European consensus as an appropriate technique of the interpretation of the Convention in the evolutive approach. However, other issues relating to human nature itself should be spared from this comparative technique. The technique itself forms one of the main interpretative techniques used by the Court when applying the Convention. Franz Matscher 5 has even put it in first position among methods of interpretation which the ECtHR adheres to. 6 2 In this regard, Helgesen makes a clear distinction between evolutive and dynamic interpretation when he specifies that the former is the Court’s answer to new facts and the latter the Court’s new answer to the old facts. See HELGESEN, Jan Erik. What are the limits to the evolutive interpretation of the European Convention on Human Rights? In Human Rights Law Journal (HRLJ) , Vol. 31, No. 7-12 (2011), pp. 275-281. 3 ECtHR judgement in the case Tyrer v. United Kingdom, n° 5856/72, 28 April 1978. 4 A very deep study has been presented by WILDHABER, Luzius, HJARTARSTON, Arnaldur and DONNELLY, Stephen, No consensus on consensus? The practice of the European Court of Human Rights, Human Rights Law Journal , Vol. 33, N° 7-12, 2013. Moreover, the phenomenon has been developed in detail by DZEHTSIAROU, Kanstantsin. European Consensus and the Legitimacy of the European Court of Human Rights , Cambridge University Press, 2015. 5 MATSCHER, Fran. Les contraintes de l’interprétation juridictionnelle. In: Sudre, Fréderic. L’interprétation de la Convention européenne des droits de l’homme , Bruylant, Bruxelles, 1998. Where Matscher puts among methods of interpretation: evolutive interpretation, autonomous interpretation, comparative interpretation, the doctrine of margin of appreciation, the principle of proportionality, the principle of subsidiarity and reference to implied powers. (Cf. MATSCHER, Fr., op. cit ., pp. 22-39. 6 For general works on interpretation of the Convention cf. e.g. VILLIGER, Mark, E. Commentary on the 1969 Vienna Convention on the Law of Treaties , Leiden; Boston: Martinus Nijhoff, 2009, 1057 p., or LETSAS, George. A theory of interpretation of the European Convention on Human Rights , Oxford University Press, 2007, 145 p.

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