A Problem of Progress in the European Convention of Human Rights

• Author: Ján Surkala
• Position: Mgr., Comenius University in Bratislava, Faculty of Law
• Pages: 11-17

JURIDICA

11

A Problem of Progress in the European

Convention of Human Rights

Ján ŠURKALA1

Abstract: In the current article author tries to focus on a problem of progress in the European

Convention of Human Rights. Objectives: The main objective is to discover how the idea o f

progress, contained in numerous international legal sources, is reflected in a recent case-law of

ECtHR. Prior Work: Regardless the fact, that th ere have been published tens of works dedicated to

the concept of progress in the public international law during the last decades, none o f them has been

targeted on currently investigated issue. Approach: Firstly, the author analyses particular

international treaties and tries to evaluate their inspiration by the idea of progress. Subsequently, he

finds the reflection of this general idea in the current decision of ECtHR in case of N.K.M . v.

Hungary. Results: By the comparison of the codified progressivistic inspirations and their reflection

in the analysed case he finds out that this idea has transformed from general statement to assessment

criterion with somehow modified content. Implications: By this observation he demonstrates the

general tendency of the court to increase its interventionism on expense of a margin of appreciation of

the member states. Value: By doing so, he do es not just warn of rather dangerous movement in

ECtHR case-law, but also offers certain methodological sample, how to detect similar tendencies.

Keywords: progress; Eu ropean Convention on Human Rights; interventionism; principle of

subsidiarity; margin of appreciation

1. Introduction

A faith in progress is one of the fundamental parts of “humanistic credo”

introduced by the French Revolution, which is dominating up to our days. Simple

premise that mankind deserves to live in better way like is living nowadays, is

persisting and has found reflection also in numerous international legal documents

(Skouteris, 2008, pp. 2-9), and in numerous pieces of legal literature (Wheaton,

1841; Renault, 1912; Bieligk, 1945; Fenwick, 1952; Chruschev, 1959; Beddard &

1 Mgr., Comenius University in Bratislava, F aculty of Law, Address: Šafárikovo nám. č. 6, P. O.

BOX 313, 810 00 Bratislava 1, Slovak Republic, Tel.: +421908642633. Corresponding author:

jan.surkala@flaw.uniba.sk.

AUDJ, vol. 11, no. 2/2015, pp. 11-17