INVOKING EUROPEAN CONSENSUS BY THE EUROPEAN COURT OF HUMAN RIGHTS

Since the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights), which is accepted to have set up the most effective human rights regime, draws up the rights and freedoms that the contracting states are obliged to secure in a conceptual and open-ended manner, the Convention must be aptly interpreted. The European Court of Human Rights having a large area in interpreting and applying the Convention developed autonomous principles, methods and technics as well as using the traditional interpretation methods of international law. European consensus is one of the most important interpretative techniques that the ECtHR invokes in determining the meaning of the provisions of the Convention and whether the rights in question have been violated. In this context the ECtHR may identify whether there is a European consensus related to the matter in hand by taking into consideration relevant developments in the law and practice of the contracting states and international law, and may define the meaning and scope of a Convention provision in these premises. However European consensus, which is the creation of the ECtHR, has not been clearly defined, nor established and applied coherently. Furthermore there are various reservations and evaluations on the legal basis of European consensus mostly used to evolve and expand the rights. The purpose of this Article is to examine all the aforementioned issues