Volumen de madera comercial

While the previous section dealt with the question as to the methods that the ECtHR employs to establish an evolutive approach, the question here is in what cases and circumstances the ECtHR uses an evolutive approach. Not much guidance can be found in the literature on the type of situations in which the ECtHR refers to evolutive interpretation. PREBENSENdistinguishes three situations in which evolutive interpreta-

tion plays a role in the interpretation process.109_{In two of those situations the ECtHR}

adopts an evolutive interpretation and in one of these situations there appear to be reasons to opt for a different interpretation. The majority of cases where the ECtHR adopts an evolutive approach is where this is in line with the text, context, and object and purpose of the provision in question.110_{In these cases, according to PREBENSEN}

the ECtHR relies on a ‘sufficient degree of convergence’ between the Contracting

106 Letsas (2007), p. 73. 107 Letsas (2007), p. 79. 108 Letsas (2007), p. 79. 109 Prebensen (2000), p, 1128-1136. 110 Prebensen (2000), p. 1128. 166

Principle of evolutive interpretation

States; thus a consensus among a significant number of Contracting States.111 _This

has been mentioned most often as the primary method to establish an evolutive interpretation in the previous section. The argument made by PREBENSENis that in

this type of case the text, object and purpose, and context do not present any obstacle for taking an evolutive approach. The evolutive approach in these cases thus supports or underlies the use of other means of interpretation, which may also be taken as a sign that the comparative method is not the only one to be used in establishing an evolutive interpretation. In the second type of case, the ECtHR relies on an evolutive approach, while supplementary means, often thetravaux préparatoires, point towards a different direction. PREBENSENdiscusses some important cases in this respect and

concludes that these show the prudence of the ECtHR in dealing withtravaux prépara- toires. In his view, it would be improper to grant decisive weight to the travaux préparatoireswhen the primary means of interpretation do not indicate an interpreta- tion, because the travaux préparatoires are not necessarily the clearest expression of the intention of the drafters and not all present Contracting States participated in the drafting process.112 _{Thus, an important hypothesis might be that the ECtHR}

may overrule the normal function of supplementary means of interpretation if it favours an evolutive approach. Whether this hypothesis is a correct one, will be examined in the context of the case law analysis.113

The final situation distinguished by PREBENSENis when evolutive interpretation

is outweighed by primary means of interpretation. In these cases the ECtHR considers that adopting an evolutive interpretation would imply that it would go beyond its role and might lead to a creation of rights that were originally not included in the European Convention. One of the examples provided by PREBENSENis the case ofJohnston.

In this case the question was whether Article 12, which includes a right to marry, also included a right to divorce. The ECtHR held that the text of this provision referred only to the marriage as such and not its dissolution. It put most emphasis, however, on the object and purpose of the provision as they could be gleaned from thetravaux préparatoires, and which revealed that a right to divorce was deliberately omitted by the drafters of the Convention. PREBENSENargues that the reason for the Court

not to use an evolutive approach in this case was that the text of Article 12 was very clear and prevented a different interpretation; the travaux préparatoires thus only played a supplementary role. The question is whether these are the only categories

111 Prebensen (2000), p. 1128. 112 Prebensen (2000), p. 1135-1136.

113 Letsas (2010), p. 265, argues that it is not clear why the ECtHR relies on an originalist interpretation in the case of ECtHR (GC),Bankovic´ and others v. Belgium and others, decision of 12 December 2001, Reports 2001-VII, § 19-22, 58, 63 and 65, in which reference is made to thetravaux prépara- toires.

Chapter 7

visible in the case law or whether a different division should be made on the basis of the analysis in Chapter 11.

Apart from showing different situations in which the ECtHR seems to rely on the principle of evolutive interpretation, the division made by PREBENSENalso indicates

the limits which the ECtHR seems to have set itself for employing this approach. It becomes clear, for example, that the ECtHR does not adopt an evolutive interpreta- tion if the primary means of interpretation, i.e. the text, context, and object and purpose, would contradict this evolutive interpretation. This does limit the ECtHR to some extent in pursuing an evolutive approach, but it does leave some leeway as well, since one can differ, for example, about the exact meaning of the text or the exact intention of the drafters. Furthermore, reference has already been made to the fact that many authors signal that the existence of some sort of consensus plays an important role in establishing an evolutive approach. This provides an additional limit to the Court’s use of the evolutive principle, since it will not be easy to rely on the principle if there is clearly no consensus visible on what the ‘new’ interpretation should be. Chapter 10, in which an analysis is made of the case law on comparative interpretation, will also deal with the question whether any trend can be found on when the ECtHR considers a consensus sufficiently established.