Reference to Criterion of Necessity in Democratic Society in the European Convention on Human Rights: Context of Legal Interpretation and Jurisdictional Role

Abstract

The study covers a theoretical analysis of the criterion of necessity in democratic society, which appears in several provisions of the European Convention on Human Rights and plays an important role in the assessment by the European Court of Human Rights of the activities of authorities of member states of the Council of Europe involving interference with such important rights as the right to privacy protection or freedom of speech, religion, assembly and association. Apart from the linguistic analysis of the phrase, it was found that this criterion can be considered as a component of the general reference clause in the context of its application and interpretation. Its axiological content associated with the type of references has been placed within the area of classic axiological choices related to the interpretation of phrases expressing extra-legal criteria. The unification of axiology of human rights standards in Europe has been recognized as the main function of this criterion since it is judicially used not only by the European Court of Human Rights, but also by national courts of Council of Europe member states.

Keywords

• necessity
• democratic society
• legal interpretation
• law application
• polish courts
• european court of human rights