EUROPEAN COURT OF HUMAN RIGHTS
BETWEEN CONSENSUS AND CONTEXTUALISM:
ARE WE FACING A “POST-BRIGHTON” PARADIGM
SHIFT IN THE COURT’S INTERPRETATION ?
Pauli Rautiainen, Ph.D.
University Lecturer of Public Law (acting)
School of Management
University of Tampere
The Convention is a living instrument
•
The Convention is a ”living instrument”, which must be interpreted according
to present-day conditions. (See landmark cases Tyrer v. Uk and Marckx v.
Belgium from the 1970’s etc.)
•
The Court has used evolutive reading of the Convention rights in order to
strengthen the human rights protection of various groups.
•
The quest for a European human rights standard has not always been a
straightforward process. The Convention’s preamble identifies the maintenance
and further realization of human rights as one of the methods quarantining
greater unity between the member states, but the convention doesn't
advance legal interaction by full harmonization of human rights
standards.
Margin of appreciation doctrine
•
The diversity of human rights standards under the Convention is often
addressed in terms of the margin of appreciation doctrine. This has
opened a floor to a long lasting debate on the issue, whether or not the
domestic interpretation of the Convention may legitimately differ from the
standards authoritatively applied by the Court.
•
The Court has introduced in it’s case law two important interpretative tools
to provide an answer to that question: consensus principle (see for
example Handyside v. UK) and contextual interpretation (see for example
von Hannover v. Germany, no. 2).
Consensus principle as an interpretative tool
•
The consensus principle establishes a presumption in favour of the solution
adopted in the majority of the States, and the lack of consensus widens
the margin of appreciation.
•
In the late 1990’s and early 2000’s (= after the Protocol 11 came into force)
the (new) court started to use consensus principle as a tool to advance the
living instrument approach. (see Christine Goodwin v. UK, Demir &
Baykara v. Turkey, Rantsev v. Cyprus & Russia)
• Acording to Letsas the court started to favour the more abstract Marckx
test over the very concrete Sheffield and Horsham test
There has recently been many worrying
consensus judgements
•
From the court’s recent case law we can find several judgements where
the court has applied again Sheffield and Horsham v. UK style of
argumentation instead of Christine Goodwin v. UK or Marckx v.
Belgium style. (See Lautsi v. Italy, GC; Schalk & Kopf v. Austria).
• Many of these case can be described to politically sensitive cases.
•
In abortion case A., B. & C. and Ireland the court introduced a new element
to the concensus argumentation stating that profound moral views of a
community trumps even almost full concensus.
•
In some case-law continuums the court refers to very old findings of
”no-consensus” and there are no mechanisms which could force the court
to update it’s empirical findings. (See how the court refers still to empirical
findings carried out in the 1990’s in the Otto-Preminger-Institute v. Austria
when it analysis protection of religious feelings.)
A shift towards more contextual
interpretation of the convention rights
•
In Austin and others v. UK the court introduced a new
criterion, namely ”the context in which action is taken by
authorities”, which was before non-existing in deprivation of
liberty continuum. (see Gillian & Quinton v. UK). This is
especially worrying since in Austin v. UK this new criteria is
applied with stronger subsidiarity.
•
Another same kind of worrying judgement is the grand chamber
judgement Movement Raelien v. Switzerland. In it court
reintroduced good fait approach, which it had rejected in
Handyside v. UK, Sunday Times v. UK etc.
A shift towards more contextual
interpretation of the convention rights
•
In recent Animal Defenders International v. the United Kingdom case the court
departed from the previous case law on political advertising.
http://www.youtube.com/watch?v=qON_lFQE4HY