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As any international treaty, the Convention is interpreted according to the rules on interpretation of Treaties laid down in the Vienna Convention, which the ECtHR also considers itself bound by. ⁴⁸ Th e ECtHR has, however, also described the Convention as a ‘ law-making treaty ’ , which would make it distinct from other international treaties that merely create contractual obligations. ⁴⁹ Th e ECtHR thus approaches the Convention as being of a special kind in the area of international law. By reason of the special nature of the Convention, the ECtHR has held that ‘ it is … necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the objective of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties. ’ ⁵⁰

Given the special ‘ law-making character ’ of the Convention, the ‘ object and purpose ’ of the Convention play a crucial role in the interpretation of the rights set forth in the Convention. ⁵¹ As explained earlier, the aims of the Convention are to ensure the ‘ protection of individual human beings ’ and to ‘ maintain and promote the ideals and values of a democratic society ’ . ⁵² Th e ECtHR has explained that these objects and

Chapter 2. Th e System of Fundamental Rights Protection Under the European Convention on Human Rights

53 ECtHR 21 February 1975, no. 4451/70, Golder v. the United Kingdom , para. 36. Judge Fitzmaurice argued for a far more cautious and conservative approach, exactly so because of the special character of the Convention that enforces individuals ’ rights against the states, see the separate opinion of Judge Fitzmaurice to the judgment of the ECtHR in this case, in particular at paras 38 – 39.

54 See Gerards (2011a); and ECtHR 23 March, no. 15318/89, Loizidou v. Turkey (preliminary objections), para. 71. Th e ECtHR has held that the travaux pr é paratoires may be used as a supportive, rather than a decisive, source and that they may be overruled, see ECtHR 1 July 1961, no. 332/57, Lawless v. Ireland , para. 14.

55 Cf. also Article 32 of the Vienna Convention on the law of treaties where the travaux pr é paratoires are mentioned as a supplementary interpetation method. Yet, some of the Protocols annexed to the Convention were introduced much more recently. Th e travaux pr é paratoires corresponding to those Protocols may then indeed be considered of importance for the interpretation of the rights they contain, see Gerards (2011b), p. 69.

56 See Senden (2011), pp. 46 and 69. A distinction can be made between interpretative principles and interpretation methods (e.g. textual interpretation), see Senden (2011), pp. 44 – 47. It has been questioned whether the Convention actually holds a special character and whether its interpretation methods can really be considered unique in comparison to other international legal systems, see e.g.

Christoff ersen (2009).

57 See e.g. ECtHR 4 February 2005, nos. 46827/99 to 46951/99, Mamatkulov and Askarov v. Turkey , para.

101; and Gerards (2011b), p. 31.

purposes justify certain specifi c methods for the interpretation of the Convention. ⁵³ Th e ECtHR strongly focuses on a teleological interpretation of the Convention. Other methods of interpretation are less important for the case-law of the ECtHR, in particular the historical method of interpretation. ⁵⁴ Th is can be explained by the fact that the text of the Convention and the travaux pr é paratoires date back more than 60 years. ⁵⁵ States parties in Europe at that time faced rather diff erent fundamental rights ’ challenges as compared to those seen now. Also, over the years many new states, including Eastern European states, which did not participate in the draft ing process have become parties to the Convention.

Th e principle of eff ectiveness and the principle of evolutive or dynamic interpretation both play important roles in the interpretation of the Convention. Th ese principles help the ECtHR to realise the object and purpose of the Convention, and they can be viewed as interpretative principles which follow from the special character of the Convention. ⁵⁶ Another important tool of interpretation which is specifi cally used by the ECtHR is the ‘ margin of appreciation ’ doctrine. Th is doctrine plays an important role in the judgments of the ECtHR. It gives clear expression of the subsidiary nature of the Convention. In view of their importance, these three tools of interpretation are briefl y explained below.

2.6.1. THE PRINCIPLE OF EFFECTIVENESS

Th e Convention provisions are, generally, to be interpreted and applied in line with the principle of eff ectiveness. ⁵⁷ Th e ECtHR has oft en held that ‘ Th e Convention is intended to guarantee not rights that are theoretical and illusory but rights that are practical

58 ECtHR 9 October 1979, no. 6289/73, Airey v. Ireland , para. 24.

59 Senden (2011), p. 73.

60 Mowbray (2005), p. 75.

61 ECtHR 9 October 1979, no. 6289/73, Airey v. Ireland .

62 ECtHR 9 October 1979, no. 6289/73, Airey v. Ireland , para. 24.

63 ECtHR 7 July 1989, no. 14038/88, Soering v. the United Kingdom .

64 ECtHR 7 July 1989, no. 14038/88, Soering v. the United Kingdom , para. 87. Factors that inter alia were taken into account by the Court were the conditions of the detention (being on death row) and the personal circumstances of the applicant (the young age and the psychiatric conditions in which the crimes were committed), see para. 111 of the judgment.

65 Harris, O ’ Boyle, Bates & Warbrick (2014), p. 18.

and eff ective ’ . ⁵⁸ According to the ECtHR, the eff ective interpretation of fundamental rights forms an objective of the Convention. ⁵⁹ To be able to guarantee ‘ practical and eff ective rights ’ means that the Convention cannot remain theoretical and illusory. ⁶⁰ States must ensure that individuals can enjoy fundamental rights in the reality of everyday life. An example of this approach is the judgment of the ECtHR in the case of Airey v. Ireland . ⁶¹ In this case, Mrs Airey wanted to divorce from her violent husband, but the national procedure she needed to follow to obtain a divorce was complex and held before a specialised court. Th e assistance of a solicitor proved indispensable to follow such a procedure. Mrs Airey could not aff ord to hire a solicitor, and so access to court was not realistically available to her. Before the ECtHR, she complained that her right of access to court (Article 6(1) ECHR) was violated. Th e ECtHR decided that the right of access to court was not eff ectively protected in this case, and moreover, that in such circumstances the state may need to provide for legal aid. Th is led to a positive obligation that needed to be fulfi lled by the states parties. ⁶²

To ensure the eff ectiveness of Convention rights may further imply that states are held responsible for prospective or potential breaches of the Convention. Th is is shown by the judgment of the ECtHR in the case of Soering v. the United Kingdom . ⁶³ Th is case was about a young German national who was detained in a prison in England. He was waiting to be extradited to the United States where he would be faced with charges of murder, and where he might incur the death penalty. Although it was not certain that the death penalty would actually be imposed in his case, the ECtHR held that the prohibition of torture (Article 3 ECHR) would be not be protected in an eff ective manner if the applicant were to be extradited to the United States. Th ere was a real risk of ill-treatment, to which the United Kingdom needed to pay attention. ⁶⁴ Th e ECtHR thus established that a violation had taken place even though the actual ill-treatment had not taken place.

Applying the principle of eff ectiveness to fundamental rights protection might also mean that the territorial reach of the jurisdiction of the ECtHR is extended, as the judgment in Soering v. the United Kingdom shows. ⁶⁵ More generally, the scope of Convention rights and obligations has been widened considerably as a result of the Court ’ s interpretation of fundamental rights based on the principle of eff ectiveness. An eff ective interpretation implies that the permissible limitations of the Convention rights

Chapter 2. Th e System of Fundamental Rights Protection Under the European Convention on Human Rights

66 Senden (2011), p. 76.

67 ECtHR 6 September 1978, no. 5029/71, Klass and others v. Germany , para. 34.

68 ECtHR 25 April 1978, no. 5856/72, Tyrer v. the United Kingdom , para. 31.

69 Gerards (2011b), p. 75.

70 Senden (2011), p. 70.

71 See e.g. ECtHR 13 June 1979, no. 6833/74, Marckx v. Belgium , para. 41; and ECtHR 25 April 1978, no.

5856/72, Tyrer v. the United Kingdom , para. 31.

72 A clear example of a dynamic interpretation can also be found in the Court ’ s case-law regarding the legal recognition of transsexuals, which has led it to adopt a diff erent and evolved interpretation of the right to private and family life (Article 8 ECHR) over time, see ECtHR 27 September 1990, no.

10843/84, Cossey v. the United Kingdom ; and ECtHR 11 July 2002, no. 28957/95, Christina Goodwin v.

the United Kingdom .

73 Gerards (2009), p. 17.

are interpreted in a narrow sense by the ECtHR. ⁶⁶ Lastly, the ECtHR has also decided to interpret the notion of a ‘ victim ’ within the meaning of the right to individual petition (Article 34 ECHR) on the basis of the principle of eff ectiveness, which means that a wider array of claims can be lodged before the ECtHR. ⁶⁷

2.6.2. THE PRINCIPLE OF DYNAMIC OR EVOLUTIVE INTERPRETATION

Th e ECtHR has rather famously held: ‘ Th e Convention is a living instrument which … must be interpreted in light of present-day conditions. ’ ⁶⁸ With this statement, the ECtHR announced that it will apply a dynamic or evolutive interpretation to the rights of the Convention in its judgments. ⁶⁹ Th e ECtHR thereby adopts a fl exible approach to the interpretation of fundamental rights. ⁷⁰ It takes into account that societies and their standards of living evolve and that therefore fundamental rights can, over time, acquire new meanings. Th us, the ECtHR does not strictly hold to the interpretation of the Convention that was prevalent at the time when it was adopted, but adapts the interpretation of Convention rights in accordance with the contemporary standards of living and thinking in the Council of Europe. Th e ECtHR has regard to the developments of certain areas of law, including changes in public opinion, in relation to the interpretation of the applicable Convention rights. ⁷¹ Th e penal policies and family laws of the states parties have, for example, developed signifi cantly over time. ⁷² Seeing that such an evolution can take place, the ECtHR may therefore also, over time, deliver diff erent judgments on the same issues.

Th e ECtHR will only accept a diff erent interpretation of the fundamental rights of the Convention due to the changing standards of the states parties in a gradual manner.

Th e ECtHR makes use of the consensus method to determine whether a certain interpretation can be accepted. ⁷³ Th is method of comparative interpretation means that the ECtHR has regard to the prevalent standards that are recognised by national and international laws, taking account of interpretations as well as practices. Th e ECtHR looks at the extent to which a certain interpretation of a fundamental right is accepted

74 See e.g. ECtHR 13 June 1979, no. 6833/74, Marckx v. Belgium , para. 41.

75 ECtHR 7 December 1976, no. 5493/72, Handyside v. the United Kingdom , paras 48 – 49.

76 ECtHR 23 July 1968, nos. 1474/62 to 2126/64, Belgian Linguistic case , para. 10 in fi ne ; and ECtHR 13 June 1979, Marckx v. Belgium , no. 6833/74, para. 41. Indeed, the margin of appreciation is also expressly mentioned in Article 1 of Protocol no. 15, see section 2.4.

77 Exceptionally, the margin of appreciation has been applied by the ECtHR to determine the material scope of a Convention right, see: e.g. ECtHR 8 July 2004, no. 53924/00, Vo v. France , paras 81 – 82. In this case the Court was confronted with the question whether the right to life could be applied to the situation of an unborn child.

78 See further Arai-Takahashi (2002); and Gerards (2011b), chapter 3.

in the states parties, and it requires a certain level of uniformity. It generally needs to be satisfi ed that, at least, the majority of states parties appreciate the same standard.

Preferably, this should be a great majority of the states. ⁷⁴

2.6.3. THE MARGIN OF APPRECIATION DOCTRINE

Th e ECtHR may decide to grant a margin of discretion to the national authorities in the fulfi lment of their obligations under the Convention, which is better known as a margin of appreciation. ⁷⁵ Th e margin of appreciation doctrine is expressly inspired by the subsidiary nature of the Convention system. ⁷⁶ National authorities are generally considered to be better placed than the ECtHR to implement Convention law, and to strike a fair balance between all the interests involved. Th e ‘ room for manoeuvre ’ that is allowed in the protection of the Convention rights is, however, subject to the supervision of the ECtHR.

Th e margin of appreciation doctrine is used by the ECtHR when it examines the proportionality and the reasonableness of interferences of states parties with Convention rights. Th e doctrine is therefore relevant especially to those rights which have limitation clauses, which most notably concerns Articles 8 to 11 ECHR. Th ese provisions allow states parties to restrict Convention rights as long as a restriction strikes a fair balance of interests and meets a number of other requirements. ⁷⁷ Th e application of the margin of appreciation doctrine by the ECtHR may mean that it adjusts the intensity of its assessment. Generally, the ECtHR will limit its examination to whether national authorities have made a careful assessment of all facts and interests at stake. Th e ECtHR could decide to assess only whether adequate procedural safeguards were available at national level, or whether the balance of interests that was struck by the national authorities was not manifestly without reasonableness or proportionality. ⁷⁸ Th us, so-called non-derogable rights, such as Article 2 ECHR on the right to life and Article 3 ECHR on the prohibition of inhuman and degrading treatment, in principle do not leave room for a similar deferential assessment.

Th e ECtHR can accord a wide, a narrow, or a certain margin to states depending on the specifi c context of the case. Considerable deference is generally applied by the

Chapter 2. Th e System of Fundamental Rights Protection Under the European Convention on Human Rights

79 See e.g. ECtHR 21 February 1986, no. 8793/79, James and others v. the United Kingdom , para. 46.

80 Cf. ECtHR 4 December 2008, nos. 30562/04 and 30566/04, S. and Marper v. the United Kingdom , para.

102; ECtHR 27 May 2004, no. 66746/01, Connors v. the United Kingdom , para. 82; and ECtHR 10 April 2007, no. 6339/05, Evans v. the United Kingdom , para. 77.

81 Harris, O ’ Boyle, Bates & Warbrick (2014), p. 17. See also Spielmann (2012).

82 See e.g. ECtHR 8 July 2003, no. 36022/97, Hatton and others v. the United Kingdom , paras 100 – 103 and 122 – 123. Specifi cally in relation to the concept of positive obligations, see sections 3.2.6. and 4.7.1.

83 Harris, O ’ Boyle, Bates & Warbrick (2014), p. 26. It has also been confi rmed by the ECtHR that ‘ neither Article 13 nor the Convention in general lays down for the Contracting States any given manner for ensuring within their internal law the eff ective implementation of any of the provisions in the Convention ’ , see ECtHR 6 February 1976, Swedish Engine Driver ’ s Union v. Sweden , no. 5614/72, para.

50.

84 Leach (2005), p. 150.

ECtHR if a case concerns the economic and social policies of a state. ⁷⁹ At the same time, generalisations on the scope of the margin of appreciation are hard to make.

Th ere are many factors which the ECtHR takes into account, such as the nature of the right, the importance of the right for the individual, the nature of the interference, the object pursued by the interference, and the consensus in Europe on the issues at stake. ⁸⁰ Arguably, with so many factors to take into account, and due to the lack of clarity as to the relations between these factors, the application of the doctrine by the ECtHR is rather unpredictable. ⁸¹

Th e margin of appreciation doctrine is also of special interest in relation to the formulation and development of positive obligations by the ECtHR. It is particularly relevant when the ECtHR deals with infringements of fundamental rights that have been caused by private parties. It can be expected that the margin of appreciation in this fi eld is generally wide, although there is also room for exceptions. ⁸²

2.7. THE EFFECTS OF THE EUROPEAN CONVENTION ON