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CYIL 7 ȍ2016Ȏ CONSENSUS ON HUMAN NATURE? THE CONCEPT OF EUROPEAN CONSENSUS …
2. Evolutive interpretation and European consensus – Origins
The reference by the ECtHR to the Convention as a ‘living instrument’ and to the
comparative technique dates back to the case Tyrer.7 The Court had to assess whether
birching (as a judicial corporal punishment admitted and enacted in criminal law of
the Isle of Man) of a young responsible person can be characterized as a violation of
Art. 3 of the Convention (prohibition of torture, inhuman and degrading treatment).
The Court, analysing the relationship between criminal conviction, punishment and
humiliation and debasement,8 had recourse as well, for the first time, to the concept
of European consensus. The Court stated that “in the case now before it the Court
cannot but be influenced by the developments and commonly accepted standards in the
penal policy of the member States of the Council of Europe in this field.” [Italics
added] Even though the reference to European consensus is not expressly made, the
Court grounded its reasoning on commonly accepted standards of member States of
the Council of Europe. In this case, however, European consensus plays the role of
an element of confirmation after the Court has already explained its reasoning on
the humiliation and debasement of such a punishment. We can only add that a clear
reference to and a stress on human dignity would maybe help the argumentation of
the Court much more than to have recourse to the European consensus concept.
One year after the Tyrer case, the Court was asked to interpret the notion of
‘family life’ (Art. 8 of the Convention) for a single mother and her daughter born
out of wedlock. In the case Marckx, 9 considered as one of turning points of Court’s
jurisprudence,10 the ECtHR had to assess the legal differences between legitimate and
illegitimate children. Here again, without stipulating expressly ‘European consensus’
in its argumentation, the Court recalls that the Convention must be interpreted in
present-day conditions (the Tyrer case) and makes reference to domestic laws and
international instruments that are evolving “towards full juridical recognition of the
maxim “mater semper certa est”.11 In this case the European consensus concept used
by the Court12 comprises not only domestic law of (the great majority of ) member
States of the Council of Europe but two also relevant international treaties (not yet
in force). The necessity for the Court to follow up on the normative alignment of
other European countries is very strong, so that the Court even softens a certain
7 ECtHR judgement in the case Tyrer v. United Kingdom, n° 5856/72, 28 April 1978.
8 Ibid., § 28-31.
9 Cf. ECtHR judgment in the case Marckx v. Belgium, 13 June 1979, n° 6833/74.
10 In one of his speeches, the Court’s President Spielman mentioned three of these cases of important
impact: Handyside, Marckx and Soering. See:
Spielmann_ENG.pdf.
11 Cf. ECtHR judgment in the case Marckx v. Belgium, 13 June 1979, n° 6833/74, § 41.
12 In this regard, it is even interesting to note different formulation of “necessity” to resort to the European
consensus concept. While in the Tyrer case, the Court cannot but be influenced, in the Marckx case the
Court cannot but be struck. Thus, the Court has no other chance than to follow the domestic law and
international instruments.