Interpretation and Application of the European Convention on Human Rights

9/21/2016 10:57:00 am Sylwia Angelika Heller 0 Comments



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. 

But, the Convention was later supplemented with Protocols such as Protocols fifteen and sixteen adopted in 2013 which say that states should seek advice from the European Court. Additionally, Art 33 of the Convention allows both states and individuals to apply to the European Court of Human Rights (ECtHR) about other states’ breaches of human rights. But, if an individual or an organisation believe that their own rights have been breached they can also apply to the court based on Art 34. 

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).

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