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The Jurisprudence of the ECtHR as a Common European Constitution

2010 / Vol. 22, No. 2, (76)
Digital Edition

The Jurisprudence of the ECtHR
as a Common European Constitution

Christina M. Akrivopoulou

PhD in Constitutional Law, Special Scientist in Democritus University of Thrace, Hellenic Open University, Greece

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.

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