The Jurisprudence of the ECtHR as a common European Constitution

• Autores: Christina M. Akrivopoulou
• Localización: Revue europeenne de droit public = European review of public law = Eur. Zeitschrift des offtl. Rechts = Rivista europea di diritto pubblico, ISSN 1105-1590, Vol. 22, Nº 2, 2010, págs. 395-412
• Idioma: inglés
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• Resumen

  • The paper analyses the role of the ECtHR in interpreting the European Convention on Human Rights in order to construct a common comprehension about rights between the Member States. The paper argues that in this process the ECtHR does not function as an isolated European juridical instrument, but instead it performs a political role based on a dialogical procedure with the States, the persons and the totality of the European legal order. As it is argued, this procedure is resulting in the construction and reconstruction of the rights protected by the Convention via a series of methods that the ECtHR activates. Those interpreting techniques assist the Court in assessing conflicts about rights as well as in justifying its dictum and jurisdiction. In other words, they represent a common ground for the evaluation and protection of the rights protected by the Convention. Some of those hermeneutical techniques are discussed in the paper, namely the accordance with the law presupposition, the test of proportionality (of appropriateness and necessity), and the test of reasonable expectations, applied recently in cases of privacy, etc. Alongside, less discussed techniques are presented, such as comparative methods, a horizontal unificating test through which the ECtHR compares the legal protection of a right in different European jurisdictions, as well as its method of determining the normative content of rights, not as static but as evolving and constantly changing.