Interpretation and Application of the European Convention on Human Rights
The European Convention on Human Rights drafted by the
Council of Europe was adopted in 1950. It included common principles of West
European countries to protect them from Communism and to avoid human rights
violations such as those which occurred during World War II.
Another motive behind its creation was to encourage states
who notice human rights violations on a large scale of other states to take
action to end them. But, it rarely happens. Nevertheless, the Convention
entered into force in 1953 and was ratified by all member states of the Council
of Europe which includes forty seven countries.
All of those applications are dealt with by judges in the
ECtHR as Protocol 11 says. If an application was admitted by them for
consideration on the merits, then judges make a binding judgement. After that,
the Committee of Ministers of the Council of Europe consisting of government
representatives from all member states monitor execution of that judgement.
However, treaties must be interpreted in accordance with the
Vienna Convention on the Law of Treaties 1969. Besides, the Convention has to
be interpreted in good faith where ordinary meaning of words is applied
depending on context and its object and purpose. However, intentions of
drafters were very general so the Convention must be interpreted according to
current situation as held in Tyrer v UK.
However, to make a judgement based on changed meaning of the
Convention there must be a sufficiently wide acceptance in European states of a
certain policy of law. If there is no uniform approach to a certain issue the
court applies a lowest common denominator approach based on national law or it
uses margin of appreciation doctrine which is a wide scope of decisions.
So, a national law or practice is acceptable if it is followed
in other European states or if the practice is varied. Therefore, so different
in every country tolerance of various practices like abortion, artificial
insemination, relationship between church and state, etc are acceptable by
Europe.
But, one would wonder: how do the court make a decision if
it allows states to have so different national law? When making a judgement the
Court relies on in-house documents about international law, it uses the amicus
curial briefs of non-governmental organisations and it relies on knowledge of
its members about national laws of European countries.
Additionally, principle of proportionality must be respected
when an exception to a particular right is used and to decide on the extent of
this restriction. Therefore, restriction must be proportionate to the
legitimate aim pursued as held in Handyside
v UK (1976). To achieve proportionality it must be evident that states
introduced balance between those rights and public interest as decided in Hirst v UK (No2) (2005).
Therefore, as decided in Soering
v UK, when applying the Convention a fair balance must exist between
interests of the community and the requirement to protect human rights of an
individual. It was also approved in Hutten-Grapska
v Poland (2006). How this balance is achieved was demonstrated in Verein Gegen Tier febriken Schweiz Switzerland
(No2) where a state refused to allow a controversial TV advertisement to be
broadcasted which is a breach of Art 10 as Strasbourg Court said. But, the
Court also said that a fair balance between interest of the community and
individuals rights had to be achieved so it respected that state’s certain
measure of discretion based on the margin of appreciation doctrine.
Similarly, it was held in Handyside v UK that national authorities are “in a better position
than the international judge to give an opinion on the … ‘necessity’ of a
‘restriction’ or ‘penalty’.’ But, states do not have an unlimited power to
interpret the Convention as their actions are subject to European supervision.
Additionally, according to Stec v UK (2006) the ‘Convention must be read as a whole, and
interpreted in such a way as to promote internal consistency and harmony
between its various provisions.’ Besides, in practice of European Court of
Human Rights there is no ratio decideni and obiter dicta as all statements of
the Court are important. But, they are usually general and based on facts of
the case.
Therefore, the court is not bound by its previous decisions on
interpretation of the Convention as there is no doctrine of binding precedent.
But, it usually follows own precedents to keep order in development of case law
and to ensure legal certainty as said in Cassey
v UK (1990).
