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ESZTER POLGÁRI Despite the fact that formally no unanimity was discernible among the member states, the practice was sufficiently concordant not to exclude the modification of the text of Article 2 on the basis of subseguent practice. In May 2003 Protocol no. 13 completely abolishing capital punishment was opened for signature and it entered into force a year later. When the judgment in Al-Saadoon and Mufdhi v. the United Kingdom“? was delivered only two member states did not sign Protocol no. 13 and three ofthose which signed failed to ratify it. These numbers “together with consistent State practice in observing the moratorium on capital punishment, [were] strongly indicative that Article 2 [had] been amended so as to prohibit the death penalty in all circumstances.”*? Interestingly, subsequent practice is not always invoked in support of evolutive interpretation. In Hassan v. the United Kingdom the ECtHR relied on the common practice of the member states not to derogate from Article 5 in order to detain persons on the basis of the relevant Geneva Conventions.“ Invoking Article 31 (3) b) in this case provoked wide criticism: instead of enhancing the protection under the Convention, the Court practically read into Article 5 additional legitimate grounds for detention in contravention of the principle of non-regression.* In addition to the scarce explicit references to subsequent practice, the ECtHR has appealed to state practice numerous times without invoking the VCLT in the interpretative process: “the Court confirmed that uniform, or largely uniform national legislation, and even domestic administrative practice, can in principle constitute relevant subsequent practice.” This approach translates into the consensus inquiry frequently applied by the Court in various contexts. In simplistic terms, the consensus is based on a rough, methodologically questionable comparative analysis of the national (and at times international) solutions adopted by the member states and sufficient convergence — in principle — constitutes a relevant consideration for interpretation. The ECtHR still owes a definition of the European consensus, but on the basis of the case-law commentators understand the notion rather as a ‘trend’ than a ‘consensus’ in the traditional sense of the term: “the Court is looking to find a trend rather than an agreement as such or an outright majority”.” Although #2 Al-Saadoon and Mufdhi v. the United Kingdom 61498/08 (02/03/2010), ECHR 2010-II 61. 13 Ibid, para 120. “4 Hassan v. the United Kingdom [GC] 29750/09 (16/09/2014), ECHR 2014-VI 1, para 100. # See for example: Luigi Crema, ‘Subsequent Practice in Hassan v. United Kingdom: When Things Seem to Go Wrong in the Life of a Living Instrument’, 4 QIL 3 (2015); and Hassan (n 44) partly dissenting opinion of Judge Spano, joined by Judges Nicolaou, Bianku and Kalaydjieva, para 13. 46 Nolte (n 33) para 54. “7 Paul Mahoney — Rachel Kondak, Common Ground. A Starting Point or Destination for Comparative-Law Analysis by the European Court of Human Rights?, in Mads Andenas — Duncan Fairgrieve (ed), Courts and Comparative Law, Oxford, OUP, 2015, 119-140, 122. + 328 *
