The European approach to evolutive interpretation: The practice of the European Court of Human Rights
Authors:   Diplomatic Academy of the Ministry of Foreign Affairs of the Russian Fedration, Oganesian Tigran D. 
Published: December 2024

The article deals with issues related to the modern understanding and application of evolutionary interpretation – a method of interpretation that allows interpreting convention rights taking into account modern realities and changing circumstances. In this regard, special attention is paid to the essence and justification of the application of this method of interpretation by the ECHR. The author emphasizes that, due to the provisions of the Vienna Convention on the Law of Treaties and a number of general formulations contained in the Preamble of the European Convention on Human Rights, the ECHR was eventually able to justify the application of an evolutionary interpretation. Particular attention is paid to the ruling in the case of Golder v. the United Kingdom (1975), which for the first time contains the idea that the Convention is a "living document". This case, according to the author, is notable for the fact that one of the main thoughts of the Court is developing that the Convention should be interpreted in such a way that its rights are "practical and effective, and not theoretical and illusory". Moreover, starting from this case, the Court resolutely rejects the idea that legal interpretation is primarily a textual interpretation based on the study of the linguistic meaning of words. As another important issue, the author considers the question of the legal nature of the doctrine of a living instrument. It is noted that this doctrine may damage the legal certainty of the Court's practice and create a situation where Member States do not understand the scope of the obligations to which they agree upon accession to the Convention. Regardless of whether the Court uses the doctrine of a living instrument, it is essential that it does so in accordance with the nature and purpose of the Convention and with due respect for state sovereignty. With the help of the comparative legal method, the opinions of various researchers regarding evolutionary interpretation are considered. A number of critics argue that this method of interpretation leads to the establishment of new rights not provided for by the Convention, and the Court, in turn, goes beyond the role actually intended for it. Other researchers believe that evolutionary interpretation contradicts the predictability of law or legal certainty, calling into question the legitimacy of these rulings. Nevertheless, the author notes that evolutionary interpretation does not jeopardize the legitimacy of the relevant rulings, since the Member States not only undertake to comply with the Convention, but also "comply with the final decision of the Court" in accordance with Paragraph 1 of Article 46 of the Convention. In conclusion, it is noted that the interpretation of the Convention in the light of modern conditions has become a necessary condition for ensuring the best protection of human rights. Human rights themselves are dynamic and depend on social, moral and scientific changes and innovations. With the help of this doctrine, the ECHR provides an interpretation of the Convention that supports the effectiveness of individual rights in practice.