The Doctrine of the Living Instrument and Evolutionary Interpretation in the Case-Law of the European Court of Human Rights

Abstract

Relevance. Having developed one of the most complex and advanced human rights protection practices in the world, the European Court of Human Rights has complicated its decision-making mechanism by introducing several doctrines, including the doctrine of the living instrument. The development of the doctrine of a living instrument and an evolutionary method of interpretation in the practice of the Court can be traced to some important cases and problems that have become key and determined the development of the future of the Court itself.The purpose of the article is to analyze the doctrine of the living instrument, the specifics of its application in the practice of the ECHR.Objectives: to analyze various approaches to the study of the nature of the doctrine of the living instrument, to identify trends in the development of evolutionary interpretation, as well as the opinions of various scientists on this issue.Methodology. In the process of working on the study, systematic, comparative legal, historical and legal methods, as well as methods of interpretation, logical and structural analysis were used.Results. It is noted that the concepts of «dynamic interpretation» and «evolutionary interpretation», «the doctrine of intertemporality» and the doctrine of a living instrument should be distinguished. At the same time, there is a risk that the doctrine of the living instrument may violate the sovereignty of Member States if it is used improperly. As a disadvantage, it is also highlighted that this doctrine may damage the legal certainty of the ECHR practice and create a situation where member States do not understand the scope of obligations to which they agree upon accession to the Convention. Based on the nature, it is proposed to divide the evolutionary rulings of the ECHR into 2 categories: rulings of an evolutionary nature and evolutionary rulings.Conclusion. The author concludes that in performing its functions, the Court cannot but apply an evolutionary interpretation, but it must do so reasonably and consistently. The doctrine of the living instrument and the evolutionary interpretation as an instrument of its implementation are a reflection of the generation and those moral values that prevail in society at one time or another.