Interpretative mechanisms of ECHR case-law: the concept of European consensus
Just as important as knowing the standards developed by the European Court of Human Rights, understanding the process and the interpretative mechanisms used for establishing them is crucial to their correct implementation at national level, especially since national courts have an important role in the interpretation of the Convention through the cases that are brought before them, in light of the principle of subsidiarity.
The European consensus is a concept used by the Court stemming from the evolving nature of the interpretation of the European Convention on Human Rights. As repeatedly stated by the Court, the Convention is a living instrument anchored to the reality of the Member States in which it applies.
In order to better understand it, it is important to look into how the principle of consensus is used in the interpretation of the Convention, its characteristics and the comparative study method on which it is based, as well as the main types of cases in which it was applied by the Court.
The concept of "European consensus" refers to the level of uniformity present in the legal frameworks of the member States of the Council of Europe on a particular topic.
The Court uses this principle both to justify a wide margin of appreciation given to the Member States in the absence of consensus, thus stagnating the development of case law, and to impose new standards, where there is a clear trend in most Member States, thus advancing the interpretation of the Convention.
It is closely related to another concept, also used as an interpretative principle, namely the "margin of appreciation" of the states. This refers to the operating space which the national authorities enjoy in fulfilling their obligations under the Convention. Thus, the narrower the degree of consensus, the greater the margin of appreciation left to the states.
The Court often proceeds to a comparative analysis to support its arguments in the interpretation of the Convention. In some cases, this method may lead to the establishment of a European consensus or a "common European standard". However, the text of the Convention provides neither the definition nor the criteria for its use. It was developed through case-law and can be defined only as a result of an analysis of cases in which it was used, as the Court never explicitly clarified what this concept means. The concept is usually analysed in relation to the margin of appreciation doctrine, but this approach is not exhaustive. Being a relative concept, just like the margin of appreciation, the way it is used by the Court, its scope and determining factors included in the Court's reasoning, can vary considerably, making it an important vehicle for either advancing the jurisprudence or for stagnating its development. The concept is used not only to support the interpretation principles of the Convention, but also to define, or to avoid defining, concepts raised through the cases brought before it (for example, the matter concerning the definition of the beginning of life in Vo v. France (GC), 53924/00, 8 July 2004).
The principle concerning the Convention’s "living instrument" nature is supported precisely by the use of interpretative principles such as that of "European consensus" which provides the material foundation necessary to support the arguments of the Court when it decides to develop its jurisprudence in a certain direction.
It has been argued that the use of consensus at European level as a method of argumentation of the Court judgments is necessary and stems from the need for legitimacy for the conclusions it reaches in cases submitted for analysis. The human rights protection system established by the Convention has a consensual nature and thus needs a constant implicit validation of the direction in which it develops from the States which have created it or have acceded to it later on.
The Court best summed it up in its various judgments in which it used this approach.
« Since the Convention is first and foremost a system for the protection of human rights, the Court must, however, have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved. One of the relevant factors in determining the scope of the margin of appreciation left to the authorities may be the existence or non-existence of common ground between the laws of the Contracting States »
Glor v. Switzerland, no. 3444/04, 30 April 2009, § 75
The development of a "uniform standard" of human rights must be a gradual process, because the whole legal framework is based, in principle, on the agreement of the member States. Thus, before extending the protection of certain rights and freedoms, the Court would check the situation in the member States, especially in cases which raise sensitive issues.
The European Court used various terms when referring to the concept of European consensus, meant to indicate the presence or absence of a common European approach. The Court has used, for example, the phrase "international consensus among contracting states of the Council of Europe" or "any European consensus", "common standard between Member States of the Council of Europe", "common European standard", "general trend". These variations in terminology did not affect the meaning, the linguistic difference having no impact on the nature of the legal terms. However, there is a slight tendency to approach the meaning to the term "trend", given that “consensus” may imply, from the linguistic perspective, an identity in behavior and opinions between all parties.
The concept of "European consensus" is generally used to describe the result of a comparative overview regarding the presence or absence of a common ground, especially in the law and practice of member States, on which the Court can found its conclusions. This standard plays a key role in the broader or narrower character of the margin of appreciation set in a certain case. In this context, the lack of a European consensus on the subject-matter of the case would be normally accompanied by a wide discretion given to State.
Thus, if there is a consensus in Europe that goes against the respondent State's conduct in the case submitted to the Court for review, the latter can find a violation, asking the respondent State to align its conduct to the required standard. On the other hand, the lack of consensus in this regard will discharge the obligation of the State to advance towards the respective standard, and the discretion left to it can even be wider than that normally afforded in relation to a certain subject-matter.
The lack of consensus on the relative importance of the interest at stake or on the best ways to protect it, especially when the case raises sensitive issues related to morality or ethics, justifies a broader margin of appreciation, except concerning discriminatory conduct.
When it comes to areas in which consensus is emerging, the European Court affords the member States a wide margin of appreciation in adapting national legislation.
The Court will take into account the developments in member States on matters subject to review and will respond when identifying a consensus.
In situations in which the Court is faced with defining concepts on which there is no uniform approach at European level, the margin of appreciation of the member States will prevail again, in order to give them the freedom to regulate this aspect.
However, if it finds that there are still some elements of consensus, this can justify reducing the margin of appreciation on that specific issue.
Where it is found that there is a consensus on a particular issue, the member State which behaves in a manner contrary to the majority must justify their choice in a well founded manner. Also, it is for the Court to choose the tools and materials for analysing the existence of a consensus.
Likewise, the Court expressly stated that to reach a certain conclusion, it considers both the relevant domestic law and practice, and the elements of international law relevant to this issue.
The comparative analysis that the Court makes does not only imply comparing the situation in the Member States but also the international context, as a consensus on the standards required internationally is an element that the Court will consider.
The existence of historical or political conditions specific to a particular area or member State may serve as justification for the adoption of conduct contrary to that established as benefitting from consensus among member States.
When the issue is about fundamental or “intimate” rights of the applicant, the lack of consensus will prevail to justify granting a large margin of appreciation to the State. On the other hand, states which are pioneers in the introduction of new elements in the national context, even in the absence of consensus, must comply with the requirements of respecting a fair balance between the interests at issue.
Among the cases in which the Court used the European consensus approach in its analysis in order to conclude a lack of violation in light of a lack thereof, are the ones dealing with medically assisted reproduction, showing of religious symbols, abortion, legal effects of gender reassignment, matters related to the right to life (beginning of life, euthanasia), adoption (retraction of consent).
A few examples in which the Court found a violation against a State based on the existence of consensus at European level, include cases dealing with the right to a name, equality for children born outside marriage, conscientious objections, the elements defining the crime of rape.
Consequently, it is clear that the argument of consensus (or lack thereof) was used in the judgments of the Court on a wide range of rights, likely to be applied to almost any legal and moral dilemma to which the Court might be exposed.
As revealed so far, whether the principle of consensus was used as a shield or as a spear in the interpretation of the Convention, it had only two out of three possible options, namely advancing the interpretation of the Convention or stagnating it. The third option, namely the regress thereof, is still an abstract one. However, in the absence of a thorough reconsideration, for more and more Member States, of their conduct of growing reluctance to the principles and values of the Convention, the present European context cannot provide certainty in this regard for the future.
 See, for example, Lautsi v. Italy (GC), 18 March 2011.
 See Dzehtsiarou, Kanstantsin, Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the European Court of Human Rights (Oct. 2011). Public Law, pp. 534-553, available at SSRN: http://ssrn.com/abstract=1944920
 Lee v. UK (GC), 25289/94, 18 January 2001, § 95
 Evans v. UK (GC), 6339/05, 10 April 2007, § 45
 T. v. UK (GC), 24724/94, 16 December 1999, § 72
 X, Y and Z v. UK (GC), 21830/93, 22 April 1997, § 44
 Unal Tekeli v. Turkey, 29865/96, 16 November 2004, § 61
 For instance, on restrictions on expression on matters of public interest, see Animal Defenders International v. UK (GC), 48876/08, 22 April 2013
 X and others v. Austria (GC), 19010/07, 19 February 2013, § 148
 Schalk and Kopf v. Austria, 30141/04, 24 June 2010, §§ 105-106
 Fabris v. France (GC), 16574/08, 7 February 2013, § 56
 Mehmet Senturk and Bekir Senturk v. Turkey, 13423/09, 9 April 2013, § 107
 R.R. v. Poland, 27617/04, 26 May 2011
 Vallianatos and others v. Greece, 29381/09, 7 November 2013, § 91
 Demir and Baykaya v. Turkey (GC), 34503/97, 12 November 2008, §§ 76-86
 Bayatyan v. Armenia (GC), 23459/03, 7 July 2011, §§ 102, 122
 Tanase v. Moldova (GC), 7/08, 27 April 2010, § 172
 S. and Marper v. UK (GC), 30562/04, 4 December 2008, §§ 102, 112
 S.H. v. Austria (GC), 57813/00, 3 November 2011.
 Lautsi and others v. Italy (GC), 30814/06, 18 March 2011.
 A. B. and C. v. Ireland (GC), 25579/05, 16 December 2010.
 Hamalainen v. Finland (GC), 37359/09, 16 iulie 2014.
 Vo v. France (GC), 53924/00, 8 July 2004 ; Pretty v. UK, 2346/02, 29 April 2002.
 Kearns v. France, 35991/04, 10 January 2008.
 Unal Tekeli v. Turkey, 29865/96, 16 November 2004.
 Mazurek v. France, 34406/97, 1 February 2000.
 Bayatyan v. Armenia (GC), 23459/03, 7 July 2011.
 M.C. v. Bulgaria, 39272/98, 4 December 2003