THE ECHR AS A LIVING INSTRUMENT Essay Example | Topics and Well Written Essays - 2500 words

THE ECHR AS A LIVING agent - Essay ExampleOne 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 construe in light of present-day conditions. A critique of juridical activism may criticize the use of the living instrument rule as an impermissible intrusion of the Strasbourg Court into the polity-making domain. This paper analyses this proposition and the developing of the living instrument rule in light of Strasbourg jurisprudence in respect of two obligates of the ECHR, article 3 and article 8. Article 3 of the ECHR states that no one shall be subjected to torture or to insensate or degrading treatment or penalization. The original Court began the articulation of the living instrument methodological analysis in the well-k right awayn case of Tyrer v. United Kingdom when it was required to determine the compatibility of judicial corpo real 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 equip 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.