How far can the “living instrument” evolve?
Dmitrij Lisovskij, Doctoral Student, Universitat Pompeu Fabra, Spain
The Convention system has experienced enormous success during the past decades; the prestige and the powers of the ECtHR have expanded exponentially. These achievements are mostly due to the recourse to the “living instrument” doctrine, which not only allowed the court to influence national legislations and improve human rights protection levels in many contracting States while delivering individual justice, but has also permitted the court to claim its constitutional functions for the European public order by establishing pilot‑judgment procedures. Nevertheless, the “living instrument” has encountered important limits, some of which are summarized in the present paper. The sound development of the Convention system in the future is mainly dependent on the clear, coherent, and collaborative guidance assumed by the court on the capacity to enable appropriate mechanisms for the reception of the ECHR into domestic law and practice, and on the States’ efforts to collectively enact efficient enforcement mechanisms, especially concerning the adoption of the measures of a general nature meant to prevent future violations.
“The key point here is the closer cooperation and dialogue between the ECtHR and the domestic courts.”
In order to develop and put into practice the “living instrument” doctrine, the ECtHR has created a series of methods and principles constantly employed in its case law. The difficulty of defining the functioning of these legal instruments with precision represents one of the limits to the future harmonic development of the protection mechanism, as their employment fails to deliver a high degree of foreseeability and predictability in the court’s orientation and judgments. The ECtHR as the sole relevant guardian and interpreter of the Convention has reached its physical capacity; the overload of the pending applications may deprive of meaning the protection mechanism set up by the Convention. Thus, the subsidiary function, set forth in Article 13 of the Convention, plays a crucial role in maintaining the system’s viability. The key point here is the closer cooperation and dialogue between the ECtHR and the domestic courts. The domestic courts should serve as a filter for the Convention mechanism, but the guidance assumed by the ECtHR must be clear and highly cooperative. The introduction of advisory opinion procedures in Protocol No. 16, even if of a non‑binding character, may also ease the cooperation between the courts. The development and employment of a set of coherent principles in the case law is essential to safeguard the court’s authority and to maintain the perception of the legitimacy of its judgments not only by local judges, but also by institutions and individuals. Balanced interaction between national courts, the representative institutions of the States, and the ECtHR is crucial, especially taking into account the cases involving highly sensitive moral and ethical issues dividing contemporary societies. The ever more extensive recourse to the “living instrument” doctrine brings the court to adjudicate on the most advanced and controversial moral and ethical issues dividing contemporary societies. The further the court becomes involved in such issues, the more it will risk delivering ideologically driven judgments. A preeminent role should be recognized for the legitimate representative institutions of the States in some specific cases, therefore the drawing of more transparent borders of recourse to the margin of appreciation doctrine is essential. Not only is the overload of complaints threatening the functioning of the court, but the ever extensive use of the “living instrument” doctrine without appropriate domestic legitimacy may threaten the voluntary participation of the States in the Convention system. If the judgments of the court are perceived to be lacking in legitimacy, the greater becomes the risk that the States will regard it the ECtHR’s decisions as an intrusion into their sovereignty. The Convention system should be perceived as an organic body comprising the national and supranational levels that serves a common interest. The “new rights” derived from the provisions of the Convention by employing the “living instrument” approach may acquire full content only after the appropriate reception in the national constitutional system; otherwise, to the consequence will be a proliferation of weak rights.
“A greater political unity between contracting States is needed in order to enact more appropriate and effective enforcement mechanisms concerning general measures”
Another important limit to the successful development is structural. The fact that a constitutional system of 47 European States does not exist in reality puts the Convention system in a delicate position. One of the ECHR mechanism’s limits is the restrained reach of individual justice. Individual justice had proved to be efficient only in those States that take seriously their responsibility to align national legislation in accordance with ECtHR jurisprudence and have developed the appropriate means to do so. Even if the Court has clarified that the judgments execution mechanism established by Article 46 contains the obligation, if necessary, to adopt general measures in order to prevent future violations, this objective obligation is rarely performed for different reasons. In cases where the general measures are not adopted, the price for some contracting States to remain in the club becomes ridiculously low – a few hundreds of just satisfactions per year. The following dilemma arises: from the one hand, individual justice is a limit to the further development of the Convention system, but on the other hand, constitutional justice is limited by the weak political structure. The new constitutional role of the ECtHR, recently expressed by the adoption of pilot judgments, has encountered its limit in the weak political organization of the Council of Europe. A greater political unity between contracting States is needed in order to enact more appropriate and effective enforcement mechanisms concerning general measures. The price of being a member of the most prestigious HR protection system should not be limited to the satisfaction of individual complaints; the system should be able to deliver greater HR protection to the population of the member States of the Council of Europe. Participation in the Convention system has inevitably a strong political character in the field of international relations. Thus, major political pressure might be exercised in order to create appropriate mechanisms necessary to support the constitutional justice delivered by the court.
The definition of precise obstacles to the development of the “living instrument” is an important task, as stepping beyond the limits may undermine the fragile framework of the ECHR protection mechanism. The “living instrument” can evolve further, and the ECHR can become a constitutional instrument of European public order if grounded on coherent case law, well-balanced interaction between national and supranational judicial and representative bodies, and the political will of the contracting States.
 The lack of foreseeability of the Court’s judgments has been denounced by many scholars. For example, in the case of Lautsi v. Italy, which related to the removal of crucifixes from the classrooms of Italian public schools, the second section of the Court unanimously held that there had been a violation of the Article 2 of Protocol No. 1, taken together with Article 9 of the Convention. Afterwards, the Grand Chamber reversed the unanimous second section’s decision by 15 to 2. The question must be asked: what violation did seven judges see that 15 judges did not?
 Officials from the United Kingdom have expressed their concern and have on different occasions mentioned the possibility of withdrawing from the ECHR.
 Some scholars are speaking about current crisis of fundamental rights as a consequence of the impact of the ECtHR on national legal systems. See Diletta Tega, “Il diritto costituzionale e i diritti in crisi” in Etica & Politica / Ethics & Politics, XV, 2013, 1, pp. 146–173.
 The member States of the Council of Europe do not form a cohesive political community: the legislative and executive functions of the organization are nearly non‑existent.
 The case of Verein gegen Tierfabriken Schwitz (VgT) v. Switzerland (No. 2) (App. no. 32772/02), Judgment of 30th June 2009, Par. 85.