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Write a 10 page essay on THE ECHR AS A LIVING INSTRUMENT.Download file to see previous pages... One of the powerful interpretive tools used by the EctHR has been the conceptualization of the ECHR as a
Write a 10 page essay on THE ECHR AS A LIVING INSTRUMENT.
Download file to see previous pages...One of the powerful interpretive tools used by the EctHR has been the conceptualization of the ECHR as a living instrument. It is settled case law that the ECHR is “a living instrument which must be interpreted in light of present-day conditions.”
A critique of judicial activism may criticize the use of the living instrument rule as an impermissible intrusion of the Strasbourg Court into the policy-making domain. This paper analyses this proposition and the development of the living instrument rule in light of Strasbourg jurisprudence in respect of two articles of the ECHR, article 3 and article 8.
Article 3 of the ECHR states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The original Court began the articulation of the living instrument methodology in the well-known case of Tyrer v. United Kingdom when it was required to determine the compatibility of judicial corporeal punishment with article 3 prohibition on cruel and degrading punishment. The Government of the Isle of Man argued that judicial corporal punishment was acceptable to the inhabitants of the island. However, the Court held that: “... the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field.
