CYIL Vol. 7, 2016

PAVEL BUREŠ CYIL 7 ȍ2016Ȏ contend that, however the European consensus might be correct and plausible per se as a technique of interpretation, it should not be used for every kind of societal changes. Thus, the Court should be spare in using it in cases dealing with the substance of human dignity. Human dignity should give the content and thus be a limit to human rights adjudication through evolutive interpretation based on the European consensus. Even though there might be (and in the democratic society shall be) an area for pluralistic convictions and ideas, pluralism has a clear limit in the concept of human dignity. 55 In other words, the interpretation of individual autonomous concepts should be based on and have as its aim the concept human dignity, as this is the core and the heart of human rights’ protection. The dignity of human beings has promoted the idea of human rights protection especially since all the atrocities committed during the Second World War. Thus, if human dignity functions as both principio (origin) and causa finalis (purpose) of human rights protection, it cannot be understood as an autonomous concept on its own and then cannot be subject to fluctuating and variable changes based on modifications in societal climate. European consensus, rather the independent interpretative technique the Court uses, cannot be applied limitlessly. This means that European consensus, in order to be used as an interpretative technique for the European Court of Human Rights, should be applied within the framework of the concept of human dignity. And thus, the Court cannot be satisfied with a “general accepted approach”, “common denominator” or “majority of contracting states”. 56 This would suppose in absolutum , in our reasoning, that this consensus is based within the framework of the human dignity concept. If this were the case, the Court needed not have recourse to the interpretative technique of European consensus itself and could reason only on the basis of human dignity. However, the Court proceeds to an “evolutive” interpretation without taking into account the “unchangeable” concept of human dignity. In this way we contend that the position of the Court as a judicial body giving an authoritative interpretation cannot be based on the phenomenon of fluctuating European consensus but rather on the concept of natural law. In this regard, a former judge of the ECtHR with respect to Russia, Anatoly Kovler, quotes a Russian lawyer from the beginning of the 20th century, Pokrovky: „Le droit positif en tant que tel, comme produit de la pensée collective et de la volonté collective du peuple, le droit positif dans ses sources formelles, c’est-à-dire essentiellement dans la législation, doit accueillir en son sein l’âme du droit naturel, doit être pétri de ses principe suprêmes.“ 57 In the 55 COHEN-JONATHAN, Georges. Universalité et singularité des droits de l’homme. Revue trimestrielle des droits de l’hommeI. N° 53 Janvier, 2003, p. 11. 56 See the section above “Evolutive interpretation and European consensus – Origins”, where we developed different denominations for the concept of European consensus. 57 POKROVKY, I. A. Les courants du droit naturel dans l’histoire de droit civil , St. Petersbourg, 1909. Cit. in KOVLER, Anatoly, Antigone à Strasbourg. Droit à la sépulture comme « un nouveau droit dérivé »

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