European Convention on Human Rights -Concepts

In 1950 the Lord Chancellor remarked on the ECHR that, "Vague and indefinite terms...were used so that all parties... could be induced to sign them." This open language has enabled the ECtHR to adopt an approach in its interpretation known as the 'living instrument doctrine.'

The case of Tyrer v UK (1978) led to the description of the ECHR as, "A living instrument which... must be interpreted in the light of present day conditions."

Others have described the Convention as requiring a "dynamic" or "evolutive" interpretation, reflecting changing values and standards in European society.

Necessary in a Democratic Society (NIDS)

An example of the relationship between the NIDS test and Living Instrument doctrine is the issue of homosexuality.

In the case of Dudgeon v UK (1981) the court stated, "there is now a better understanding, and in consequence an increased tolerance of homosexual behaviour to the extent that tin the great majority of the member states... it is no longer considered to be necessary or appropriate to treat homosexual practices... with sanctions were criminal law should be applied. The court cannot overlook the... changes which have occurred in the domestic law of the Member States."

Transsexuals also saw increased legal protection over time as more Member States began enshrining protections in their national laws. Cossey v UK (1990) saw the Court decide to keep, "appropriate legal measures in this area under review." While the case of Goodwin v UK (2002) the Court noted the international trend in favour of increased social acceptance of post-operative transsexuals and the legal recognition of their new identities.

Limitations of Living Instrument

The main limitation is that judicial bodies may not introduce new concepts into international treaties, where no mention of them has been made, simply for the reason that their inclusion would be more in accordance with the spirit of the times.

In Johnston v Ireland (1986) the Court clarified this, stating, "[we] cannot by any means of an evolution interpretation, derive from these instruments a right [right to divorce] that was not included therein at the outset."

The case of Hirst v UK (no.2) (2005) saw the issue of prisoners voting taken to the ECtHR where the court held that it was incompatible with Article 3 of Protocol no 1. The minority opinion judges commented, "it is essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions."

The Margin of Appreciation Doctrine's Relevance to Living Instrument.

The ECtHR has a research division which studies questions of comparative and international law. It does not always wait until an approach has been adopted universally, or even a great majority before it acts. The absence of consensus in European politics results in the court applying the Margin of Appreciation doctrine.

Defined as the ability to act within a settled framework, without fear of arbitrary or unforseeable state interference. Similar concepts exist in the UK (Rule of Law), France (etat de droit), and Germany (Rechtstaat). It is a fundamental principle of EU law, and important element of Convention Law.

A number of provisions in the ECHR contain requirements that measures interfering with protected rights must be lawful. Firstly, the act must have a basis in domestic law. Secodly, the law must meet certain requirements, notably of accessibility and foreseeability.

Accessibility

The ECtHR said in Sunday Times v UK (1990): "...the law must be adequately accessible: The citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case."

Forseeability

The court said in the same case, "a norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able -if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail..."

The requirement of legal certainty is also reflected in Article 5, which requires any deprivation of liberty to be 'lawful' and 'in accordance with a procedure prescribed by law."
Legal certainty is also considered an inherent aspect of a fair hearing in terms of Article 6.
In the context of criminal law, the need for legal certainty is reflected in Article 7.

The concept of necessity arises in several ECHR articles, but has different connotations in different contexts. A distinction can be drawn between those which guarantee rights principally of a civil/political nature, that are subject to widely expressed qualifications. And those which guarantee rights regarding human dignity and physical integrity which are subject to no express qualifications, or only stringent qualifications.

Rights of the former are found in Articles 8-11. (Private and family life, home and correspondence; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and association.) The 2nd paragraph of these articles goes on to identify particular interests or "legitimate aims" which may justify interference with the protected rights, always provided that any such interference is 'in accordance with the law'.

There is a 5 point checklist to determine the necessity of an interference:

1. What is the scope of a particular guarantee?
2. Has there been an interference with the right guaranteed?
3. Does the interference have a legitimate aim?
4. Is the interference in accordance with the law?
5. Is the interference necessary in a democratic society?

In most cases, the difficulty lies in the 5th question. The court has defined 'democratic society' as including, "pluralism, tolerance, and broad-mindedness..." in the Handyside v UK (1976) case.

Under the ECHR, the Wednesbury unreasonableness test has been replaced by the requirement of 'proportionality.' It is a question of degree, and so involves a judicial evaluation of the situation in question.