THE ECHR AS A LIVING INSTRUMENT - Essay Example

THE ECHR AS A LIVING INSTRUMENT The European Convention on Human Rights1 (the “ECHR” or the “Convention was framed against the backdrop of the Nazi atrocities in the Second World War and the emerging totalitarian communist regimes of the Soviet Union and its European satellite states.2 However, a perusal of the jurisprudence developed by the European Court of Human Rights (the “ECtHR” or the “Strasbourg Court”) reveals that the rights and freedoms guaranteed by the ECHR have been interpreted as applying in an ever-widening range of contexts, which could hardly have been foreseen by the framers of the Convention.3 One of the powerful interpretive tools used by the EctHR has been the conceptualization of the ECHR as a living instrument. It is settled case law that the ECHR is “a living instrument which must be interpreted in light of present-day conditions.”4 A critique of judicial activism may criticize the use of the living instrument rule as an impermissible intrusion of the Strasbourg Court into the policy-making domain. This paper analyses this proposition and the development of the living instrument rule in light of Strasbourg jurisprudence in respect of two articles of the ECHR, article 3 and article 8. Article 3 of the ECHR states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The original Court began the articulation of the living instrument methodology in the well-known case of Tyrer v. United Kingdom5 when it was required to determine the compatibility of judicial corporeal punishment with article 3 prohibition on cruel and degrading punishment. The Government of the Isle of Man argued that judicial corporal punishment was acceptable to the inhabitants of the island. However, the Court held that: “... the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.”6 The Court noted that in the ‘great majority’ of member States of the Council of Europe, judicial corporal punishment was not used7 and therefore held that judicial corporeal punishment amounted to a degrading punishment in breach of Article 3. Since, the decision in Tyrer the living instrument rule has permitted the Strasbourg Court to depart from the doctrine of precedents and follow a ‘dynamic and evolutive’ approach8 to extend the provisions of the Constitution in accordance with contemporary principles. A few months after Tyrer another Grand Chamber utilised the living instrument doctrine to announce a new approach to the assessment of the occurrence of torture within member States. In Selmouni v France,9 the applicant claimed that he had suffered a series of assaults and acts of sexual humiliation by police officers during three days of detention and questioning. The judges were unanimous in holding that: The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture (see the Aksoy v Turkey Judgment, [1996-VI 2287] ¶ 64, and the Aydin v Turkey Judgment [1997-VI 1889] ¶¶ 83–4 and 86). However, having regard to the fact that the Convention is a ‘living instrument which must be interpreted in the light of present-day conditions’ (see, among other authorities, the following judgments: Tyrer v United Kingdom, 25 April 1978, Series A no. 26, pp. 15–16, 31; Soering cited above, ¶ 102; and Loizidou v Turkey, 23 March 1995, Series A no. 310, pp. 26–7, ¶ 71), the Court considers that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.10 Soering v United Kingdom,11 was a landmark decision which disclosed how far the Srasbourg Court was willing to go with the living instrument doctrine. In considering whether the imposition of the death penalty should be classified as an inhuman and degrading punishment under article 3 of the Convention, the Court, sitting in plenary session, acknowledged that: Certainly, ‘the Convention is a living instrument which ... must be interpreted in the light of present-day conditions’… De facto the death penalty no longer exists in time of peace in the Contracting States to the Convention.12 But the Court then noted that member States had agreed Protocol 613 and this: “...as a subsequent written agreement, shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. In these conditions, notwithstanding the special character of the Convention ... Article 3 cannot be interpreted as generally prohibiting the death penalty.”14 Thus, Soering is an authority for the proposition that the Strasbourg Court would not trespass on the policy-making powers of the States.15 In Öcalan v Turkey16 the Court again had the occasion to apply the ‘living instrument’ doctrine to determine the legality of the death penalty. The Court accepted that in the light of the fact that, by early 2003, 43 member States had de jure abolished the death penalty in peacetime,17 there had been a ‘considerable evolution’18 in the legal position of the death penalty since Soering. However, it would not unequivocally rule that States contemporary practice had modified article 2(1)19 or that the imposition of the death penalty could generally be regarded as contrary to Article 3.20 The case of Pretty v United Kingdom21 further reveals that despite the Courts compassion for the plight of the applicant, a 43-year-old woman in the final weeks of her life due to the terrible effects of advanced motor neurone disease, the Court would not apply the ‘living instrument’ doctrine for the purpose of judicial activism. The Court refused to recognise a positive obligation upon States (under Article 3 of the Convention) to sanction the assisted suicide of a terminally ill person: “... While the Court must take a dynamic and flexible approach to the interpretation of the Convention, which is a living instrument, any interpretation must also accord with the fundamental objectives of the Convention and its coherence as a system of human rights protection. Article 3 must be construed in harmony with Article 2, which hitherto has been associated with it as reflecting basic values respected by democratic societies. Article 2 of the Convention is first and foremost a prohibition on the use of lethal force or other conduct which might lead to the death of a human being and does not confer any claim on an individual to require a State to permit or facilitate his or her death.22 The international23 and domestic24 consensus was against allowing the assisted suicide of persons in the predicament of Mrs Pretty; consequently, the Court did not extebd the established interpretations of Articles 2 and 3 beyond the contemporary standards. A perusal of Strasbourg case law under article 3 shows that the Court has used the “living instrument” rule as a dynamic mode of interpretation of the Constitution rather than for abstract extension of its scope through other means of interpretation.25 National Constitutional courts that are criticized for indulging in judicial activism are criticized because of use of natural law and natural rights to expand fundamental human rights. On the other hand the Strasbourg approach of “living instrument” rather than allowing judicial creativity based on abstract concepts requires the Judges to carefully and empirically assess the actual societal present-day conditions and development. Thus, the approach of the Strasbourg Court is positivist rather than based on natural law. Rather than permitting Judges to indulge in unrestrained and undemocratic judicial activism, the living instrument rule permits an orderly development of human rights under the ECHR regime in consonance with modern needs.26 Article 8 of the ECHR is another good example of the dynamic but judicious use of the living instrument rule.27 In Demades v. Turkey,28 applicant in his application complained of an unjustified interference with the right to respect for his home in violation of Article 8 of the Convention. The Court was faced with a question of interpretation of the term ‘home’. While the applicant was born and brought up in the house in question, he presently resided in another house in Nicosia. The house in question was a second home and some day the applicant intended to reside there permanently. The Court while applying the living instrument rule held that:“The Court notes in this context that it may not always be possible to draw precise distinctions, since a person may divide his time between two houses or form strong emotional ties with a second house, treating it as his home. The Court recalls that the Convention is a living instrument to be interpreted in the light of societal changes and in line with present-day conditions..”29 Therefore, the Court held that the concerned house came within the definition of home. Another interesting application of the living instrument rule is the determination of the extent of the obligations upon States to recognise the new personalities of post-operative transsexuals in Christine Goodwin v United Kingdom.30 Several previous judgments of the former Court, granting States a margin of appreciation, had found that Britains refusal to accord legal recognition to such individuals new personalities did not breach Article 8 of the Convention.31 However, in Christine Goodwin the Grand Chamber was united in finding: “... clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.” 32 The Grand Chamber concluded that in the light of recent developments:“... the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention…There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention.”33 So, the dynamic and evolutive approach enabled the Grand Chamber to depart from the assessments of the original Court, this time on the basis of legal developments occurring outside the respondent State at the international level.34 Even this departure shows a scientific use of the living instrument rule rather than abstract theorizing. The Court initially expressed the need for the domestic authorities to ‘keep under review’35 the appropriateness of domestic law in 1986. Yet, it was not until 2002 that the Court finally ruled that the legislative inaction of the British authorities failed to adequately safeguard the Convention rights of transsexuals. Furthermore, the determination that conditions in 2002 had reached a state where it was no longer permissible to discriminate against transsexuals was based on empirical evidence. The human rights group ‘Liberty’ had been given permission to submit a written brief, which disclosed that, inter alia, legal recognition of gender reassignment was provided in Singapore, Canada, South Africa, Israel, Australia and New Zealand.36 However, as regards the protection of environmental rights the Court has taken a rather restrictive use of the living instrument rule and given undue deference to the limitations posed by the express words of the ECHR. On first application, a majority of a Chamber, five votes to two, found that the regulation of night flights at Heathrow airport failed to safeguard a number of local residents’ rights to respect for their homes and family lives under Article 8 in Hatton v United Kingdom.37 However, when the case was reheard by a Grand Chamber,38 a significant majority, 12 votes to 5, determined that: “Environmental protection should be taken into consideration by Governments in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights.”39 Not surprisingly, the Strasbourg judiciary is divided as to the extent of environmental protection that can be read into the Convention. As the Grand Chamber dissenters highlighted, when the Convention was drafted environmental rights were not seen as a part of the nascent body of human rights. Subsequently, the Court has interpreted Article 8 so that serious environmental pollution may result in a breach.40 However, the Grand Chamber judgment in Hatton indicates that, at present, the Court is being extremely cautious in developing environmental human rights.41 Therefore, what the living instrument doctrine lacks at present is a coherent theory for its application. Some cases have applied the living instrument rule for instance in Tyrer, without providing enough empirical evidence to establish what actually are the contemporary standards or conditions. This might result in subjectivity and decisions might be based on what the Judges consider present-day conditions to be rather than what the present day conditions actually are. If the same persists there would be little difference between the living instrument rule and abstract theorizing. Therefore, the living instrument rule should be applied based on empirical evidence. Formulation of appropriate principles in this regard would be the first hurdle that the ECtHR faces in its living instrument jurisprudence. The second hurdle that the ECtHR faces is formulation of principles for uniform applicability of the living instrument principle. At present there is an ad hoc application of the principle. While on the one hand, the principle has been readily applied to the rights of transsexuals based on the practice in Singapore, Canada, South Africa, Israel, Australia and New Zealand, in spite of there being a much more extensive global practice of recognizing the right to a clean environment, the Court left it to the margin of appreciation of the concerned state.42 In spite of its limitations the living instrument rule has greatly benefited human rights jurisprudence by allowing a two-way exchange of developments in human rights.43 The judgment in Stafford is illuminating, as it reveals that the Court will have regard to legal developments within the respondent State when applying the ‘evolutive/living instrument’ doctrine.44 Such a two-way process harmonizes human rights developments at the municipal and international level.45 The contribution of the living instrument doctrine was recognized by Lord Woolf in a recent speech.46 Following the ECtHR, the living instrument doctrine has now been adopted by other international tribunals including the Inter-American Court of Human Rights47 and the United Nations Committee on Human Rights.48 BIBLIOGRAPHY Acevedo, ‘The Intersection of Human Rights and Environmental Protection in the European Court of Human Rights’, 2000 N.Y.U. Environmental Law Journal, Vol: 8, 437-496 Alastair Mowbray, ‘The Creativity of the European Court of Human Rights’, Human Rights Law Review 2005 5(1): 57-79 Alexander Morawa, ‘The ‘Common European Approach, ‘International Trends, and the Evolution of Human Rights Law. A Comment on Goodwin and I v. the United Kingdom’, 3 German Law Journal No. 8 (1 August 2002) Bernhardt, ‘Thoughts on the Interpretation of Human-Rights Treaties’, in Matscher and Petzold (eds), Protecting Human Rights: The European Dimension 65 (1988) at 65–6 Cançado Trindade, ‘The Development of International Human Rights Law by the Operation and Case Law of the European and the Inter-American Courts of Human Rights’, a speech given by the President of the Inter-American Court at the opening of the judicial year of the European Court of Human Rights on 22 January 2004 (available at http://www.echr.coe.int) Collected Edition of the ‘Travaux Preparatoires’ of the European Convention on Human Rights (Martinus Nijhoff, 1975) David J. Harris et al., Law of the European Convention on Human Rights (1995) George Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’, 15 Eur. J. Intl L. 279, 297-305 (2004) H. Tomás Gómez-Arostegui, ‘Defining Private Life Under the European Convention on Human Rights by Referring to Reasonable Expectations’, 35 Cal. W. Intl L.J. 153, 2005 Kersty McCourt & Manuel Lambert, ‘Interpretation of the Definition of Torture or Cruel, Inhuman or Degrading Treatment or Punishment in the Light of European And International Case Law’, A report presented to the EU Network of Independent Experts in Fundamental Rights, 30 October 2004 Laurence R. Helfer, ‘Finding a Consensus on Equality: The Homosexual Age of Consent and the European Convention on Human Rights’, 65 N.Y.U. L. Rev. 1044, 1056-57 (1990) Laurence R. Helfer, Consensus, Coherence and the European Convention on Human Rights, 26 Cornell Intl L.J. 133, 139 (1993) Luzius Wildhaber, President of the European Court of Human Rights, on the occasion of the opening of the judicial year on 23 January 2003 (available at http://www.echr.coe.int) Matscher, ‘Methods of Interpretation of the Convention’, in Macdonald, Matscher and Petzold (eds), The European System for the Protection of Human Rights 63 (1993) Mowbray, ‘ECHR: Institutional Reforms Proposals and Recent Cases’, (2003) 3 Human Rights Law Review 301 Ost, ‘The Original Canons of Interpretation of the European Court of Human Rights’, in Delmas-Marty (ed.), The European Convention for the Protection of Human Rights: International Protection versus National Restrictions 288 (1992) Pieter van Dijk & Godefridus J.H. van Hoof, Theory and Practice of the European Convention on Human Rights (3d ed. 1998) Roger Masterman, ‘Taking the Strasbourg Jurisprudence into Account: Developing a Municipal Law of Human Rights under the Human Rights Act’, 54 ICLQ 907, 2005 Simpson, Human Rights and the End of Empire (2001) Speech by Lord Woolf on 15 October 2002 at the British Academy on Human Rights: Have the Public Benefited? (available at http://www.britac.ac.uk /pubs/src/tob02/woolf.html) Speech by Luzius Wildhaber, President of the European Court of Human Rights, on the occasion of the opening of the judicial year on 23 January 2003 (available at http://www.echr.coe.int). Warbrick, ‘Coherence and the European Court of Human Rights: the adjudicative background to the Soering {Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A)} case’, 11 Michigan Journal of International Law 1073 (Summer 1990) Read More