The European Court of Human Rights and its Theories of Interpreting the European Convention of Human Rights

• Author: Murzea, C.
• Position: Department of Private Law, Transilvania University of Brasov
• Pages: 141-148

Bulletin of the Transilvania University of Braşov • Vol. 5 (54) No. 1 - 2012

Series VII: Social Sciences • Law

THE EUROPEAN COURT OF HUMAN

RIGHTS AND ITS THEORIES OF

INTERPREPRETING THE EUROPEAN

CONVENTION OF HUMAN RIGHTS

Cristinel MURZEA1

Abstract: The European system of human rights protection is generally

considered as a model of the effectiveness at the level of the i nternational

human right law. This general opinion expressed in the doctrine is mainly

due to the current mechanism of protection of the rights guaranteed by the

European Convention of Human Rights that enables an unique and

permanent body, namely the European Court of Human Rights, to exercise

an effective control upon the violations of the convention made by the

Member States. Still, the doctrine is not very open to the interpretations of

the ECtHR. In the following we shall present the main theories reflected in

the ECtHR case-law as well the criticism formulated by the doctrine.

Key words: European Convention of Human Rights, European Court of

Human Rights, theory, interpretation.

1 Department of Private Law, Transilvania University of Braşov.

1. Introduction

The ECHR was drafted within the

Council of Europe, a political organization

founded in the aftermath of the Second

World War in order t o defend democracy,

the rule of law, and human rights in

Europe. The Convention opened for

signature in Rome on 4 November 1950

and entered into force in September 1953.

Since 1998, due to the reform of the

system by t he Protocol No. 11, the

European Court of Human Rights (ECtHR)

has had exclusive jurisdiction to receive

individual applications. The recognition of

the right to individual application before

the Court is compulsory for all Member

States and the judgments of ECtHR are

binding, a reason for which the European

system the human rights protection is

considered a model of effectiveness in the

international order of human rights law [2].

The effectiveness of the European

Convention of Human Rights is manifested

in many ways, both in the effect it has had

on the domestic law and in the increasing

number of applications being lodged

before ECtHR that has generated a rich

and extensive human rights case law,

unique in international law.

Still, the effectiveness of the European

system has been under threat from two

directions. First, the Court became a

“victim” of its own success [6], having

difficulties in managing the ever-

increasing caseload. This has partly to do

with the increased awareness of the right to

individual application within Contracting