CYIL vol. 7 (2016)

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PAVEL BUREŠ

CYIL 7 ȍ2016Ȏ

contend that, however the European consensus might be correct and plausible

per

as a technique of interpretation, it should not be used for every kind of societal

changes. Thus, the Court should be spare in using it in cases dealing with the

substance of human dignity. Human dignity should give the content and thus be

a limit to human rights adjudication through evolutive interpretation based on the

European consensus. Even though there might be (and in the democratic society

shall be) an area for pluralistic convictions and ideas, pluralism has a clear limit in

the concept of human dignity.

In other words, the interpretation of individual autonomous concepts should be

based on and have as its aim the concept human dignity, as this is the core and the

heart of human rights’ protection. The dignity of human beings has promoted the

idea of human rights protection especially since all the atrocities committed during

the Second World War. Thus, if human dignity functions as both

principio

(origin)

and

causa finalis

(purpose) of human rights protection, it cannot be understood as an

autonomous concept on its own and then cannot be subject to fluctuating and variable

changes based on modifications in societal climate. European consensus, rather the

independent interpretative technique the Court uses, cannot be applied limitlessly.

This means that European consensus, in order to be used as an interpretative

technique for the European Court of Human Rights, should be applied within

the framework of the concept of human dignity. And thus, the Court cannot be

satisfied with a “general accepted approach”, “common denominator” or “majority

of contracting states”.

This would suppose

in absolutum

in our reasoning, that

this consensus is based within the framework of the human dignity concept. If this

were the case, the Court needed not have recourse to the interpretative technique

of European consensus itself and could reason only on the basis of human dignity.

However, the Court proceeds to an “evolutive” interpretation without taking into

account the “unchangeable” concept of human dignity. In this way we contend that

the position of the Court as a judicial body giving an authoritative interpretation

cannot be based on the phenomenon of fluctuating European consensus but rather

on the concept of natural law. In this regard, a former judge of the ECtHR with

respect to Russia, Anatoly Kovler, quotes a Russian lawyer from the beginning of

the 20th century, Pokrovky: „Le droit positif en tant que tel, comme produit de

la pensée collective et de la volonté collective du peuple, le droit positif dans ses

sources formelles, c’est-à-dire essentiellement dans la législation, doit accueillir en

son sein l’âme du droit naturel, doit être pétri de ses principe suprêmes.“

In the

COHEN-JONATHAN, Georges. Universalité et singularité des droits de l’homme.

Revue trimestrielle

des droits de l’hommeI.

N° 53 Janvier, 2003, p. 11.

See the section above “Evolutive interpretation and European consensus – Origins”, where we developed

different denominations for the concept of European consensus.

POKROVKY, I. A.

Les courants du droit naturel dans l’histoire de droit civil

, St. Petersbourg, 1909. Cit.

in KOVLER, Anatoly, Antigone à Strasbourg. Droit à la sépulture comme « un nouveau droit dérivé »