engleski

The interpretation of the European Convention on Human Rights

The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges’ of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.

ECHR; ECtHR; Law of the Convention; Strasbourg

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