ECHR

ECHR



ECHR

Question 1)

The idea that constitutions are living organisms that evolve over time is a familiar metaphor in many constitutional traditions. It figures prominently in debates about how constitutional courts should interpret entrenched rights and how far they may or should depart from the constitution's original understanding. These debates are generated by a normative tension that bedevils modern constitutionalism: on one hand constitutions are meant to signal a pre-commitment to a set of fundamental principles that should be immune from ephemeral political changes; but on the other hand the circumstances of human life change constantly and sometimes drastically, calling for a novel interpretation of the constitution which few, if any, of the original actors (drafters, judges, the people) could have foreseen. Advocates of the 'living constitution' oppose the idea that present-day conditions should be fully governed by a document whose drafters died decades or even centuries ago. But they are burdened with the difficulty of explaining what kind of pre-commitment the original constitution is meant to express, if its meaning is not treated as frozen. They also have to justify why courts and not legislatures or constitutional assemblies should have the power to evolve the meaning of the constitution and how far they may go before they start abusing this power (Connell, 2006, pp. 55).

In the hands of the European Court of Human Rights, the idea of a living instrument has three main features. First, the Court will take into consideration 'present-day standards' as an important factor in interpreting the Convention; it will very rarely inquire into what was thought to be acceptable state conduct when the Convention was drafted, or into what specific rights the drafters of the Convention intended to protect. Second, the present-day standards that the Court takes into consideration must somehow be common or shared amongst contracting states. The Court has never clarified what it means for a standard to be common or shared. As we shall see, the Court does not make it a condition that all contracting states have expressly accepted the standard by way of legislative enactment. Third, the Court will not assign decisive importance to what the respondent state (be it its authorities or public opinion) considers to be an acceptable standard in the case at hand. This is so particularly if the respondent state's practice is out of line with the commonly accepted standards in the Council of Europe. Over time however, the European Court has shifted the emphasis it places on the various aspects of the living instrument approach. This section looks at the early cases decided by the old Court, i.e. before the reform of Protocol 11 to the ECHR (1998).

Question 2)

The increasing significance will be the harmonization of the law. This can be achieved by the implementation and transformation of legally binding instruments aiming to reduce or eliminate the differences among national legal systems by inducing them to adopt common legal principles. This applies to human rights cases in particular. While a specific action might be classified as ...