263 / 532
247
WHAT IS NOT RIGHT IN HUMAN RIGHTS PROTECTION?
line between individual rights and the powers of public authority but also searching
for a very thin line between the reality in the living situation which need not to be
regulated (“Is”) and that which should be regulated (“Ought to be”). If in the case of
peremptory norms (e.g. prohibition of torture) the line is rather clear,
13
in so called
derogable rights this line is interchangeable and may be rather invisible especially
in those cases which relate to societal, cultural or ethical issues. We thus cannot
accept the idea of a moral reading of the Convention proposed by Letsas
14
which is
based on the uncritical ‘protection’ of minor (and ‘oppressed’) groups – transsexuals,
homosexuals, children born out of wedlock. We argue on the contrary that sometimes
the laws of the society (usually the majority), even though somewhat prejudicial
prima facie
to minor groups, have their
ratio
in the overall conception of a human
being and are needed for the correct and proper
15
development of the society.
16
In
other words, the protection of human rights in the European region is shaped not
only by the Convention and the case law, principles and methods of interpretation
related to it, but by principles and the overall legal and societal environment which is
rooted in the legal and axiomatic history of European countries. These principles and
values (e.g. principle of pluralism, protection of minorities) cannot, however, be, on
the one hand, cornerstones of the system and, on the other,lead to the erosion of the
system – a thing which can be seen in some judgments of the ECtHR.
Multi-parental family?
From the point of view of the proper development of society and in order to ensure
its future existence, the family is a natural and fundamental group unit of society.
17
13
Even though there are some arguments trying to balance the common good of society and individual
rights of an accused person, especially with regard to terrorism, the case law of the Court is clear in these
matters as well. (See the case
Gäfgen v. Germany
).
14
Letsats, G., Strasbourg’s interpretive ethic : lessons for the international lawyer.
European
journal of
international law
, vol. 21 no. 3 (August 2010), p. 536.
15
Specifically in ethical issues which are very sensitive, it is difficult, even impossible, to define what is
correct and right for the society. However, it is on the responsibility of public authorities (legislative
power) to decide these questions. And thus in the context of the European protection mechanism through
the ECHR, States should take advantage of and use to the maximum their margin of appreciation.
16
One can argue that the right development of society is, first, very difficult to define and to interpret and,
second, is not mentioned among the list of reasons for the interference of public authority. (Art. 8 par. 2
of the Convention). In our view, right development of society can be in the
stricto senso
interpretation
coupled to the ’the protection of the rights and freedoms of others’. In
largo senso
interpretation coupled
to all five reasons mentioned together in the Art. 8 para. 2 of the Convention.
17
See Art. 16 § 3 of the Universal Declaration of Human Rights. This characteristic of the family has
been recently recalled by the UN Human Rights Council resolution on Protection of Family (A/
HRC/26/L.20/Rev.1) from 26 June 2014. It is interesting to note that a large number of European
Countries and the USA have not voted in favour of this resolution. (See also the draft proposal of
these countries wanting to include in the conception of the family so-called “various form of it” – A/
HRC/26/L.37 – and thus evincing the natural conception of the family being an union between one
man and one woman.