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Vol. 39, Nº 68 (Enero - Junio) 2021, 88-102
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Evolutionary trends in the
interpretation of the European Court
of Human Rights under the European
Convention on Human Rights
DOI: https://doi.org/10.46398/cuestpol.3968.04
Svitlana Karvatska *
Mariia Blikhar **
Nataliia Huralenko ***
Abstract
The purpose of this Article is to analyse evolutionary trends in
the interpretation of the European Convention on Human Rights
(ECHR) by the European Court of Human Rights (ECtHR). To
achieve this goal, a wide range of general philosophical methods
were used. The Article submits that the ECHR has shown a growing
commitment to the evolutionary method of interpretation, using the
doctrine of a «living instrument», the ECHR, which is particularly important
for Member States with specic problems, although this method limits the
scope in the discretion of the State. It is concluded that the interpretative
methodology used by the ECHR involves the use of its methods, including
increasingly developing methods of consensus, efciency, judicial activism,
comparison, innovative interpretation, autonomous method, and «balance»
method. This demonstrates, inter alia, the unlimited potential to improve
the ECHR’s interpretation of conventional standards. In the context of
modern transformations in the direction of proactive international justice,
judicial activism objectively departs from a formal application of legal
norms and reects the ECHR’s desire to protect the fundamental human
rights of individuals and communicatethem.
Keywords: evolutionary trends in legal interpretation; European Court
of Human Rights; interpretation of rules of international
law; consensus method; judicial activism.
* Doctor of Science in Law, Associate Professor, Department of Еuropean Law and Comparative Law
Studies, Chernivtsi National University, Ukraine. ORCID ID: https://orcid.org/0000-0001-9948-
4866. Email: svitlana.karvatska288822@gmail.com
** Doctor of Science in Law, Associate Professo, Department of Administrative and Informational
Law, Lviv National University Lviv Polytechnic, Ukraine. ORCID ID: https://orcid.org/0000-0003-
2974-0419. Email: blikharv@gmail.com
*** Doctor of Science in Law, Associate Professor, Department of Human Rights, Faculty of Law,
Chernivtsi National University, Ukraine. ORCID ID: https://orcid.org/0000-0003-0884-215X. Email:
N.huralenko@gmail.com
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Tendencias evolutivas en la interpretación del
Tribunal europeo de Derechos Humanos en el marco del
Convenio Europeo de Derechos Humanos
Resumen
Este artículo tiene como objetivo analizar las tendencias evolutivas en la
interpretación del Convenio Europeo de Derechos Humanos (CEDH) por
parte del Tribunal Europeo de Derechos Humanos (TEDH). Para lograr
este objetivo, se utilizó una amplia gama de métodos losócos generales.
El artículo sostiene que el CEDH ha mostrado un creciente compromiso
con el método evolutivo de interpretación, utilizando la doctrina de un
«instrumento vivo», el CEDH, que es particularmente importante para los
Estados miembros que tienen problemas especícos, aunque este método
limita el alcance en la discreción del Estado. Se concluye que la metodología
interpretativa utilizada por el CEDH implica el uso de sus métodos, entre
los que se están en desarrollo cada vez más los métodos de consenso,
eciencia, activismo judicial, comparación, interpretación innovadora,
método autónomo y método de «equilibrio». Lo que demuestra, entre otras
cosas, el potencial ilimitado para mejorar la interpretación de las normas
convencionales por parte del CEDH. En el contexto de las transformaciones
modernas en la dirección de una justicia internacional proactiva, el
activismo judicial se aparta objetivamente de una aplicación formal de
las normas legales y reeja el deseo del CEDH de proteger los derechos
humanos fundamentales de personas y comunidades.
Palabras clave: tendencias evolutivas de interpretación jurídica;
Corte Europea de Derechos Humanos; interpretación
de normas de derecho internacional; método de
consenso; activismo judicial.
Introduction
Methods of research and analysis have made it possible to determine that
the essential feature of the evolutionary approach in modern international
legal reality is its focus on humans as the highest value. International human
rights treaties are an integral part of modern international law, but they
also have their own characteristics. Their distinctive feature is the origin
and the nature of the obligations of parties, as human rights treaties are
agreements between states that confer specic rights on persons who are
not themselves parties to the treaty and for whom their obligations derive
from states.
The results of this article made it possible to determine that, on the one
hand, the evolutionary approach in international law can contribute to
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Svitlana Karvatska, Mariia Blikhar y Nataliia Huralenko
Evolutionary trends in the interpretation of the European Court of Human Rights under the
European Convention on Human Rights
its dynamic development; on the other hand, its application can be quite
problematic in practice, as there is no exact legal procedure by which to
establish its existence. Torp Helmersen (2013) draws attention to the fact
that treaties, when concluded, formally remain static; but at the same
time the reality in which treaties operate is more complex, it is not static
as economic, political, cultural, and technological realities do change.
In many areas, the law must be exible in order to remain relevant and
effective; in international law, this exibility can be provided primarily by
the evolutionary interpretation.
This study conrms that, rstly, the evolutionary approach follows
from the very meaning of the ECHR as a catalog of human rights, the
content of which evolves together with social moral guidelines; secondly,
the evolutionary interpretation of law by the ECtHR is closely linked to
the teleological interpretation; thirdly, the evolutionary approach involves
nding out the consensus of the states parties to the ECHR on the key
changes taking place in public life and affecting the content of fundamental
human rights; fourthly, the ECtHR recognizes the need for a “cautious”
application of the evolutionary interpretation of human rights guaranteed
by ECHR, as such an approach could lead to an unjustied extension of
obligations of Parties under the ECHR (Kretova, 2015).
1. Methodology
Determining a methodological basis was one of the crucial stages of
writing this article. The methodology is based on a comprehensive approach
to the analysis of object and subject of research, which covers a wide range
of general philosophical, general scientic, special scientic and legal
methods. A general methodological basis of the study was the dialectical
method of scientic knowledge, which provided a comprehensive study of
the integral connection of doctrine with practice.
Among the interdisciplinary methods, a special place occupies the
system-structural method, on the basis of which system relations in the
system of international and national justice were studied and substantiated.
The use of the psychological method in this article made it possible to
reveal nature and signicance of judicial discretion in the administration of
international and national justice. The historical method allowed us to trace
the evolution of the formation of rules for the interpretation of international
treaties. Established patterns, generalisations and conclusions of the
author are largely based on the results of scientic analysis of signicant
law enforcement practice of the ECtHR, carried out by using the empirical
method of research.
A critical methodological principle was the logical method of clear
construction of the research, which is based on the need to study the
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evolution and development of legal interpretation in international law,
emergence, and operation of the ECtHR, which is one of the main subjects
of interpretive activity in international law. This logical sequence of
examining independent, but inextricably linked issues allowed us to reach
a qualitatively new level of reection of the subject of study and fully solve
the tasks set in the article.
Modern methodological approaches such as anthropological and
synergetic ones were also actively used in the article. The anthropological
method focused on the anthropocentrism of the interpretation process
carried out by the ECtHR. The synergetic method allowed to determine
basic principles and patterns of functioning of the ECtHR as a subject of
interpretation and the formation of its interpretive methodology.
Objectively, the article widely uses legal research methods. In particular,
the formal-legal method was used to study treaties and national legislation of
Ukraine and to analyse the case-law of the ECtHR and the practice of courts
of Ukraine. The comparative legal method made it possible to compare
treaties interpretation with other legal interpretations, substantiated the
comparative analysis of the peculiarities of European and national justice.
2. Theoretical framework
An analysis of the scientic literature certies that the discussion
of approaches is reduced to the analysis of static and dynamic legal
interpretative approaches (Bjorge, 2014). For example, according to A.
Orakhelashvsvili (2008), the dominance of the evolutionary approach to
the interpretation is noticeable in international practice, which is conrmed
by the analysis of the ECtHR, which in interpreting the Convention and its
Protocols mainly bases its judgement on the spirit rather than on the letter
of interpretation.
Professor Ingo Venzke (2015) also speaks about the dynamism of
international law in justifying the need for evolutionary interpretation:
“The Achilles heel” of international law doctrine is its static understanding
of international law so that an act of interpretation looks like restoration,
not creation.
Although the evolutionary approach to interpretation has recently
attracted the keen attention of researchers, Inagaki Osamu (2015) notes that
its application in the judiciary is not fully claried. The issue is complicated
by the fact that one of the main characteristics of the international legal order
is the lack of legislative power as such: in this case, it is not entirely clear
how treaties can adapt to new situations that arise after their conclusion.
One of the possible ways is to change the treaty, but this process is long,
so a more exible option is to interpret international treaties. As argue
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Evolutionary trends in the interpretation of the European Court of Human Rights under the
European Convention on Human Rights
prof. Tymchenko and Kononenko (2012), the evolutionary interpretation
provides a gradual development of the content of the international
agreement due to changes taking place in society.
In the context of ECHR`s interpretation, it is important to consider
certain aspects of such a legal phenomenon as judicial activism. W.
Marshall (2002) identies features of judicial activism. Dothan (2018)
explores factors and causes of national systematic bias of judges. Evseev
(2015), sharing the position of the retired ECtHR judge A. Kovler, notes that
judicial activism occurs when the Court has several interpretations within
its case law, but the Court goes beyond that. S. Sherry (2014), emphasizing
positive characteristics, underscores that judicial activism in a certain sense
of civilization is an attribute of a democratic legal system.
3. Results and discussion
3.1 The object and the purpose of human rights treaties
In general, the object and the purpose of human rights treaties, is to
protect the rights of the individual and to play a central and crucial role
in their interpretation. In accordance with this task, the interpretation
must be carried out consistently and must adhere to certain established
principles, among which, rst of all, the principle of efciency, evolution,
autonomy. European Convention on Human Rights (the ECHR – the
Convention) of 1950 was the rst mandatory instrument to protect human
rights, interpretation of which is carried out by the European Court of
Human Rights (the Court – the ECtHR) (Wildhaber, 1998).
The evolutionary approach has become especially popular in ECtHR`s
pratice. According to Art. 32 of the ECHR, the Court is called upon to decide
all issues of interpretation and application of the ECHR and its Protocols
in resolving interstate cases, considering individual complaints, issuing
advisory opinions. In fact, ECtHR`s judges are empowered to interpret
the ECHR and its Protocols, within the framework of the evolutionary
approach, taking into account changing life realities. They use this power
in practice - the tendency is called “judicial activity” or “judicial activism”.
Inagaki Osamu (2015) identies two stages of judicial interpretation in
ECtHR`s case-law. In the rst stage, as the author notes, it is established
whether the term or the provision can be interpreted in the context of
circumstances existing not at the time of their application, but at the time
of their adoption. If the result is positive, the interpretation proceeds to the
second stage, in which the interpretation will be carried out considering
various circumstances that have arisen since the conclusion of the treaty.
Inagaki Osamu (2015) considers the ECtHR to be the most “interpretive”,
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in other words one that prefers the evolutionary interpretation, more often
bearing in mind the circumstances that arise after the conclusion of the
treaty, not only further development of international law but also further
practice.
The interpretation of the legal provisions of the Convention for the
Protection of Human Rights and Fundamental Freedoms by the European
Court of Human Rights is characterized by indeterminate dynamics, the
presence of socio-cultural determinant spontaneity of the emergence of
new social situations (Huralenko et al., 2020).
However, researchers are faced with an important question: is the
evolutionary approach in the process of interpreting international law
a clear positive trend? It is worth noting that the evolutionary approach
cannot completely displace a static approach, as the latter is in a sense a
“guarantor” of the rule of law.
Regarding the effectiveness of the mechanism of the Court and the
evolution of the organizational structure due to the growing number of
cases after the expansion of its jurisdiction to the East, one may primarily
pay attention to certain institutional features that affect ECtHR`s
interpretational activity.
Initially, the main body to which individuals could le complaints was
the European Commission of Human Rights. If the dispute has not been
settled, the Commission submitted a report either to the Committee of
Ministers, or to the Court. One of these bodies had to consider and solve
the case. The case was heard in plenary sessions or chambers (comprising 7
judges). When Protocol No. 11 entered into force, a new single body was set
up in place of the Commission and the Court, the European Court of Human
Rights, which could deal with complaints on its own and issue decisions in
all cases. The admissibility of complaints was determined by committees
(comprising 3 judges) and chambers (comprising 7 judges) considering
both the admissibility and the cases themselves.
The most important cases concerning the interpretation of the Convention
were to be discussed in the Grand Chamber (comprising 17 judges). The
incredible workload of the ECtHR and the length of the proceedings led
to the adoption of Protocol № 14, which allowed judges to determine the
admissibility of cases individually, and committees (comprising 3 judges)
were given additional powers to issue decisions in ordinary cases. It is clear
that institutional improvements speed things up but reduce the ECtHR’s
ability to focus on each case. The Parliamentary Assembly of the Council
of Europe elects 14 judges for a term of 9 years from among the candidates
nominated by each member state. Each judge may serve in its capacity only
for one term. The prerequisite is the compliance of candidates with high
moral and ethical qualities.
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European Convention on Human Rights
It is also assumed that judges will be politically unmotivated. However,
in the literature we nd research on the national systematic bias of judges
due to certain factors: psychological (patriotic beliefs); economic (expected
material reward); selection conditions (adherence to a certain ideology);
cultural (education, experience gained in the country) (Dothan, 2018).
At the same time, it seems that it would be possible to avoid a biased
interpretation due to the careful formation of the composition of judges
for consideration of cases. However, scholars observe the formation of
coalitions between biased judges through legal reasoning or as a result of
leaning in favor of one’s own state. “A systemic bias that does not favor
a particular state, but rather is a judicial policy” among judges from the
former socialist countries, in particular, is stressed as well (Dothan, 2018).
Over the last decade, the ECtHR has formed a research unit that
conducts research on issues of comparative and international law, which
arise mainly in cases considered by the Grand Chamber. As a result, the
ECtHR has at its disposal extremely useful and detailed comparative and
international legal information, as well as the collective knowledge of its
members, the registers of the Court, and the research of the amicus curiae
of non-governmental organizations (Harris and O’Boyle, 2014).
Interpretative rules are an important basis for ensuring the proper
exercise of the right to a fair trial at the national level. Interpretative rules
applicable to treaties, in general, are also applicable to human rights
treaties, as is the undoubted application in such cases of the principles of
interpretation provided for by Art. 31, art. 32 and Art. 26 of the ECHR.
Namely, principle of good faith (the treaty must be interpreted “in good
faith”), principle of literality (the contract must be interpreted in accordance
with the usual meaning of the terms of the treaty, in their context), principle
of systematic nature systematic view of the whole treaty, teleological
principle (according to the subject and the purpose of the treaty).
However, the interpretation of human rights treaties requires a special
approach and taking into account the specic characteristics of these
treaties. Since the ICJ has established that treaties should be interpreted
and applied within the legal system that existed at the time of interpretation,
and not at the time of preparation or adoption of the text, there is no point
in talking about the need to clarify the intentions of their developers.
Sometimes ECtHR’s decisions run counter to developers’ intentions. Thus,
the retired judge of the ECtHR prof. Butkevich (2010) emphasizes:
It is true that the Convention and its Protocols must be interpreted in the light
of the conditions which exist today, but the Court can not, just for the purpose
of evolutionary interpretation, derive from the Convention a right not originally
included therein (2010: 83).
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3.2 Method of consensus as a manifestation of the
evolutionary approach in the activities of the ECtHR
Jurisdiction of the ECtHR, according to Art. 32 of the ECHR, includes
“all matters concerning the interpretation and application of the Convention
and of the Protocols”. The Court must also give reasons for its decisions
(Article 45 § 1), which are binding only for the State party to the proceedings,
as the defendant or the applicant.
The ECtHR has repeatedly emphasized that it adheres to the
interpretative principles of the ECHR. In its interpretative practice, the
Court uses the Convention in different ways: sometimes in a latent form as
a common practice. But the same practice shows that the Court uses its own
methodology of interpretation, which is based on the method of consensus,
in other words, the combination of interpretation of international treaties
(the ECHR) with the practice of Member States (national legal system), use
of fairly broad standards, analysis of interpretations of Constitutional Courts
of the Member States. The consensus method is certainly a manifestation
of the evolutionary approach of the Court, which is particularly important
for the Member States with similar problems, although it limits the scope
of the State’s discretion.
Among the reasons for using the consensus method, the judges of the
ECtHR single out the following:
1) strengthening the legitimacy of the ECHR in the case of evolutionary
interpretation.
2) the need to persuade the Contracting Parties and issue acceptable
court decisions.
3) avoidance of arbitrary decision-making (for example, when judges
prefer their own moral views).
4) determining the scope of discretion.
5) assisting the Court in resolving new issues of interpretation (of the
Convention), issues of special importance or in dispute
(Dzehtsiarou,
2015).
Being convinced that “the Court’s exible and non-automatic approach
to the European consensus can provide a sufcient guarantee against the
abuse of a majority logic in the case-law of the ECtHR” most ECtHR`s
judges supported the possibility of conceptualizing the European consensus
“as a rebuttable presumption if there are good reasons” (Dzehtsiarou, 2015:
204).
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European Convention on Human Rights
Another feature of the Court’s interpretation of the Convention is the
use of a self-developed autonomous method, which is based “primarily on
the domestic law of the Member States and their international obligations”
but is not limited to the meaning of certain concepts within national legal
systems, which can signicantly expand their content. At the same time,
the Court uses the “balancing” technique, which it applies in the following
cases:
1) if the Court has found interference with the law, it determines
whether such interference was justied (proportionality of purpose
and requirements).
2) when the Court decides whether there is unjustied discrimination
in the application of Art. 14 of the Covention together with other
articles.
3) if the Court recognizes that certain rights also have a positive
dimension in the sense that they not only guarantee the absence of
State interference but also oblige the State to actively protect those
rights (ECHR, 2002);
4) The Court from time to time determines the meaning of very vague
terms through a balancing process (Djeffal, 2016).
3.3 “Judicial activism” as a peculiarity of the ECtHR`s
interpretation
One of the peculiarities of the dynamics of interpretive activity of the
EctHR is its intellectual and creative nature; mechanical transformation
of legal rules into individual acts and “standard” use of previous court
decisions are not allowed (Huralenko et al., 2020). Another issue is a
peculiarity of the interpretation of the EctHR is the tendency to “judicial
activism”. This term has been used since 1947. Today it is rmly established
in the scientic and categorical apparatus of researchers of international
and European law, but it is used in different meanings. As a rule, it is used
to criticize judges who do not simply interpret or apply the legal text in an
active way but decide cases without taking into consideration the rule of law
that they intend to apply. Or it is used to accuse judges who do not adhere
to the principle of integrity in making decisions.
W. Marshall (2002) identies the following signs of judicial activism: 1)
counter-majority, when courts overturn decisions taken by representative
bodies; 2) refusal of courts to comply with the law; 3) refusal of courts to
take into account existing precedents; 4) the refusal of courts to comply
with the established limits of their jurisdiction; 5) creation of new doctrines
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and rights; 6) use of the judiciary power to establish new responsibilities for
other branches of government; 7) the use of the judiciary to promote their
own interests.
Judicial activism is understood as cases when international courts go
beyond the wording of treaties, which dene the scope and intentions
of states. The discussion on the judicial activism of international courts
mainly focuses on their interpretive and law-making activity, which was
not envisaged by states when creating a particular international court. The
Court of Justice of the EU, which indicated a qualitatively new procedural
way to solve a number of doctrinally confusing and practically unsolvable
legal problems, is considered to be the most “activist” (Karvatska, 2019).
The activities of the Court in the context of “judicial activism” are
manifested in several forms. For example, sharing the position of A. Kovler
(2010), a resigned judge of the ECtHR, Evseev (2015) notes that “judicial
activism” occurs, rstly, when the Court has several interpretations within
its case law, but the Court goes beyond this framework. Secondly, when
the Court searches for certain procedural procedures (the author cites the
example of the “Katyn case”, Janowiec and others v. Russia (ECHR, 2013),
when the Court did not reject the complaint as not meeting the criterion
ratione temporis and opened proceedings.
Among the many drawbacks of “judicial activism”, the most signicant
is the reluctance of courts to take into account the will of representative
authorities (in cases of ignoring legislation). But, in contrast to the critique of
“judicial activism”, we agree with the arguments of the American Professor
S. Sherry (2014) that the activism is in some civilisational sense a quality of
a democratic legal system. As Prof. Savchyn (2016) notes, speaking about
peculiarities of the domestic justice system, the judge’s discretion is to
choose the best solution to a legal case, based on fundamental principles of
law, in particular, respect for human rights, the rule of law and democracy.
The scholar refers to Lord Bingham’s view that in modern requirements
of the rule of law, judicial discretion should be exercised cautiously on
reasonable grounds, with little freedom of choice, and judges should not
be inclined to over-innovate the law, especially when new laws are passed.
The term “judicial activism” is also used to denote limits of treaties
interpretation. The requirement not to use undesirable “judicial activity”
consists in the fact that the treaty interpreter must respect wording, context
and its objective purpose and can not perform law-making functions
(create the rule of law). But, at the same time, if the interpreter does not
allow himself to carry out “undesirable” judicial activity, then a certain
share of activity may not only be permissible, but also, on the contrary,
“desirable”, for example, in a situation where a certain wording is unclear to
the interpreter. It should be noted that “judicial activism” mainly concerns
the interpretation of the rules governing disputes. Thus, the main problem
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relates to a possible undesirable (or intentional) deviation from the true
interpretation of legal requirements.
The phenomenon of “judicial activism” in international justice has its
own characteristics. Firstly, regardless of whether an interpretation can be
regarded as a judicial activity, it is denitely closely linked to the text of
the treaty itself. Secondly, when an international judge issues a decision
on a case, he must, at his own discretion, interpret the treaty and, at the
same time, not deviate from the general principles of treaty interpretation.
Thirdly, international judges must have restrictions on the exercise of their
powers. Such requirements include a fair interpretation of the text of the
applicable international treaty and a reasoned implementation.
However, in the context of understanding the true nature of judicial
discretion, treaty interpretation should not be limited to the actual
interpretation of the “letter” of the text of the treaty. A judge may (and
should) use the opportunity to ll a gap in the regulation of a treaty, if
necessary, to ensure its effect. This issue, like no other, requires balance.
We share the position of Taiwan University Professor Chang-fa Lo (2017)
that it is inappropriate to treat the term (concept) “judicial activism”
only negatively, as its non-recognition may lead to a situation where an
international judge will not be able to properly interpret the treaty resulting
in failure to ll a gap and, ultimately, in non-performance of the treaty.
A disadvantage of the evolutionary approach is seen in the fact that
judicial activism can lead to the fact that the contractual rule may eventually
be interpreted quite unexpectedly for the state - a party to the treaty
(Zaharova, 2016). An example of the evolutionary interpretation is the
judgment in the case of Christine Goodwin v. The United Kingdom, (ECHR,
2002). Guided by the principle of subsidiarity, the ECtHR emphasized
that States have a wide margin of discretion to decide which measures
are necessary to exercise conventional rights within their jurisdiction
and to address practical issues related to the legal implementation of the
postoperative gender status of such persons.
The Court attached less importance to the lack of evidence of the
existence of the single European approach to legal and practical problems
than to clear and unequivocal evidence of an international tendency, which
favors not only of an increased public acceptance of transgender people but
also a legal recognition of their new sex after surgery. In other words, the
Court did not burden itself with seeking consensus and issued a decision on
the basis of possible changes (Zaharova, 2016).
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Vol. 39 Nº 68 (Enero - Junio 2021): 88-102
Conclusions
A study and an analysis of evolutionary trends in interpretation
are important from the point of view of increasing the efciency and
effectiveness of legal interpretation of the ECtHR and national authorities
applying the ECHR, what is extremely important for parties recently
acceded to the Convention. In legal systems of such member-states mainly
technical-dogmatic methods of interpretation still prevail and judges don`t
have the necessary skills to use international jurisprudence in the national
legal system. The application of ECtHR`s decisions in national practice
allows solving not only problems of justice, but ones of a political, economic
and social settlement.
Peculiarities of the ECtHR’s interpretation are the special nature of
international human rights treaties and of the ECHR in particular, what
determines the actualisation of their interpretation in the context of the
object and the purpose of treaties, in other words paying attention to the
protection of individual rights, but not to the intentions of the member-
states in concluding the ECHR. There are also peculiarities of interpretation
of institutional nature, which created certain differences at different stages
of organizational transformation of the ECtHR.
An interpretational methodology developed by the ECtHR involves the
use of its own methods, among which the methods of consensus, efciency,
judicial activism, comparison, innovative interpretation, autonomous
method, and the method of “balancing” are becoming more and more
exploited. The functioning of the ECtHR as a court, its interpretive method
of building a holistic system through informal practice and setting standards
by comparing the legal rules of member states, seem legitimate enough to
dene identifying evolutionary standards, and maximally contribute to
their establishment and consolidation. The binding nature of ECtHR`s
decisions only for parties to the dispute does not preclude, rather even
afrms the need for the legislation of the Member States to comply with
these standards, which must be sufciently broad. Otherwise, the Court
may be charged with “legislative” decisions. However, too broad standards
make it incredibly difcult for the Court to operate.
The ECtHR, in compliance with the standards of interpretation provided
for in Art. 31, Art. 32 and Art. 26 of the ECHR, has developed its own system
of methods, approaches, principles - the methodology of interpretation,
in which most attention is paid to the method of consensus, efciency,
activism.
A consensual examination allows the ECtHR to tie its decisions to the
pace of changes in national law, recognising the political sovereignty of
the respondent States and, at the same time, legitimising its own decisions
against them, adhering to the principles of a democratic state governed by
the rule of law.
100
Svitlana Karvatska, Mariia Blikhar y Nataliia Huralenko
Evolutionary trends in the interpretation of the European Court of Human Rights under the
European Convention on Human Rights
The ECtHR demonstrates a growing commitment to the evolutionary
method of interpretation, applying the doctrine of the “living instrument”,
but always relies on a thorough study of the domestic law of the Member
States, their international obligations and law enforcement practices. A
method of the consensus, which the ECtHR mostly uses for interpretation,
does not t into the provisions of paragraph 3 of Art. 31of VCLT rules.
Discussions and court decisions often involve a focused approach, primarily
to object and purpose, context, and subsequent practice of increasing
human rights standards. At times this fact accelerates positive changes
in national legislation and sometimes states a regression in domestic
law. Regarding the problem of “judicial activism” in ECtHR`s justice, we
summarise that, despite heated discussions on this issue, positive “activist”
characteristics in its practice include the expansion of judicial competence
and new approaches to treaty interpretation. In the context of profound
modern transformations in the direction of objective international justice,
judicial activism as a way to realise the fair nature of law reects the trend
according to which the Court seeks to increase its activity in protection of
fundamental rights and objectively departs from the formal application of
legal rules. Examples of ECtHR`s judicial activism encourages to seek to
identify within ECHR new potential human rights opportunities.
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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