The term “margin of appreciation” refers to the space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights (the Convention)1.
The legal basis of the doctrine may be found in jurisprudence, not only that of the French Conseil d’état, which has used the term “marge d’appréciation, but also that of the administrative law system within every civil jurisdiction. The most sophisticated and complex doctrines of administrative discretion have been developed in Germany2, but the German theory of administrative discretion (Ermessensspielraum) is much narrower than the margin of appreciation as used in the Convention and EC law.
At international law level, the first recourse to the margin of appreciation doctrine has occurred in the jurisprudence of the European Court of Human Rights (the Court).
Given the diverse cultural and legal traditions embraced by each Member State, it was difficult to identify uniform European standards of human rights. Therefore, the Convention was envisaged as the lowest common denominator3. While the issue of deference to the sovereignty of each Member State continues to be raised, the enforcement of the Strasbourg organs’ undertaking ultimately depends on the good faith and continuing cooperation of the Member States4.
Consequently, the process of realising a “uniform standard” of human rights, protection must be gradual because the entire legal framework rests on the fragile foundations of the consent of the Member States. The margin of appreciation gives the flexibility needed to avoid damaging confrontations between the Court and the Member States and enables the Court to balance the sovereignty of Member States with their obligations under the Convent5ion.
As an inherent and permanent phenomenon under the Convention, there must exist principled criteria for the application of the margin of appreciation doctrine. These criteria are developed in the Strasbourg organs’ jurisprudence and the purpose of this study is to identify and explain them in order to offer a clear view of the margin of appreciation doctrine.
In Chapter 1, the subsequent study examines all principles developed in tandem with the application of the margin of appreciation doctrine, with special emphasis on the principle of proportionality as a yardstick for evaluating whether the national authorities overstep the margin or not. In Chapter 2, the analysis focuses on the application of the doctrine in relation to various rights guaranteed by the Convention.
CHAPTER 1 Interpretative principles
In order to fully understand the concept of margin of appreciation, we must first and foremost analyse the interpretive processes within the Convention system, as the Strasbourg organs have developed a number of principles that have assisted them in determining the scope of the Convention rights and the legality of any interference.
These principles can be extracted from two key paragraphs to be found in the first case where the Court has discussed the margin of appreciation - Handyside6.
In this case, the Court examined whether the forfeiture of the Little Red School Book on grounds of obscenity violated freedom of expression:
“The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (23 the "Belgian Linguistic" case, July 1968, para.10 in fine). The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted.
By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them.
The Court notes at this juncture that, whilst the adjective "necessary", within the meaning of Art. 10 para.2, is not synonymous with "indispensable" (Articles 2 para.2 and 6 para.1), the words "absolutely necessary" and "strictly necessary" and, in Article 15 Para. 1, the phrase "to the extent strictly required by the exigencies of the situation"), neither has it the flexibility of such expressions as "admissible", "ordinary" (Art.4 para.3), "useful" (the French text of the first paragraph of Article 1 of Protocol No. 1), "reasonable" (Articles 5 para.3 and 6 para.1) or "desirable". Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of "necessity" in this context.
Consequently, Art.10 para.2 leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ("prescribed by law") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force (Engel and others case, 8 June 1976, para.100; De Wilde, Ooms and Versyp case, 18 June 1971, para.93; and the Golder case, 21 February 1975, para.45).
Nevertheless, Art.10 para.2 does not give the Contracting States an unlimited power of appreciation. The Court, which, with the Commission, is responsible for ensuring the observance of those States’ engagements (Art. 19), is empowered to give the final ruling on whether a "restriction" or "penalty" is reconcilable with freedom of expression. The domestic margin of appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its "necessity"; it covers not only the basic legislation but also the decision applying it, even one given by an independent court.”
1. Effective protection
The first principle – the effective protection, inherent in the text, holds that, since the overriding function of the Convention is the effective protection of human rights rather than the enforcement of mutual obligations between States, its provisions should not be interpreted restrictively in deference to national sovereignty7.
2. Subsidiarity and review
The principle of subsidiarity means that the state should itself decide democratically what it’s appropriate for itself8.
The principle of review states that the role of the Court is not one of final court of appeal or “fourth instance”9.
Therefore, the main responsibility of ensuring the rights provided in the Convention rests with the Member States, and the role of the Strasbourg organs is limited to ensure whether the relevant authorities have remained within their limits10.
There is an obvious tension between subsidiarity and universality – the idea of insisting on the same European protection for everyone, by the developing of common standards.
3. Permissible interferences with Convention rights
Many of the rights contained inthe Convention are conditional and may interfere with particular circumstances. However, these permitted infringements must possess certain characteristics if they are to be accepted within the Convention and its case-law.
a). Prescribed by law/in accordance with law This first characteristic contains three requirements.
First of all, any provisions that interfere with Convention rights must impose a sufficient element of control over the relevant decision-maker so as to avoid the exercise of arbitrary action11. Thus, in the Malone12 case, the Court held that there must be a measure of legal protection against arbitrary interference by public authorities with the right in Art.8, especially where a power of the executive is exercised in secret and the risk of arbitrariness is evident.
The second requirement – accessibility, insists that a person who is likely to be affected bythe rule should have access to it. A breach of this requirement was evident in the Silver13caseinvolving the regulation of prisoners' correspondence via administrative guidance produced bythe Secretary of State for the Prison Service.
The Court held that most of the restrictions on prisoners' correspondence could be gleaned from the content of the formal law (the Prison Act 1952 and the Prison Rules 1964). However, those restrictions contained only in non-legal and non-published Standing Orders were not inaccordance with law within Art.8 (2).
The third requirement – certainty, means that the law should be sufficiently clear to allow individuals to govern their future behaviour. Thus, in the Sunday Times14case,it was held that a law had to be formulated with sufficient precision to enable the citizen to regulate his conduct: that person must be able – if need be with appropriate advice – to foresee, up to a reasonable degree - given the circumstances, the consequences which a certain action may entail. Those consequences need not, however, be foreseeable with absolute certainty.
b). Legitimate aims The Convention lists a number of legitimate aims,allowing the claimed right to be interfered with, provided it was prescribed in accordance with the law and necessary ina democratic society to do so15.
Any interference with the above Convention rights has to accord to such a legitimate aim and the Member State must show that the relevant legal provision pursued one of the aims laid down in, and was genuinely applied to the applicant ina particular case. Thus, alegitimate aim cannot be a pretext for a measure taken for another improper purpose, as noted in Art.18.
c). Necessary in a democratic society The third characteristic means that it isn’t enough that the State interfere with the applicant's rights for a legitimate purpose; the Court must also besatisfied with the restriction and consider it necessary given the circumstances. This involves the Court making a qualitative decision regarding the merits of the relevant domestic legal provision and its application.
Moreover, the Court insists that there is a strong objective justification for the law and its application. For example, although it might be useful or convenient to have a law that prohibits the publication of material likely tocause offence or annoyance to the majority of society, it would not for that reason alone be „necessary” to have such a law.
In Handyside, the Court ruled that the word „necessary” meant that there must be a „pressing social need” for the interference16.
While evaluating whether it exists such a „pressing social need” or not, national authorities are allowed a margin of appreciation. It is in fact the evaluation of democratic necessity that has spawned the most significant principles of interpretation – the principle of proportionality17.
The doctrine of proportionality is at the heart of the Court’s investigation into the reasonableness of the restriction. Although the Court offers a margin of appreciation to the Member State and its institutions, the Court’s main role is to ensure that the rights laid down in the Convention are not interfered with unnecessarily18.
The principle of proportionality requires that there be a reasonable relationship between a particular objective to be achieved and the means used to achieve that objective19.
The different versions of the proportionality test appear to reflect various standards of review in different contexts.
The strict approach set out in Handyside is appropriate where fundamental rights are at stake (such as freedom of expression or intimate aspects of private life) and consists in a four questions test:
· Is there a pressing social need for some restriction of the Convention?
· If so, does the particular restriction correspond to this need?
· If so, is it a proportionate response to that need?
· In any case, are the reasons presented by the authorities, relevant and sufficient?
In other cases, the Court uses the phrase “a reasonable relationship between the means and the aim sought to be realised” or “a fairbalance” between the general and individual interests at stake (such as property rights).
Furthermore, it has been held that the possible existence of alternative solutions does not make legislation unlawful under the right to property; and that it is not for the Court to consider whether legislation represents the best way of dealing with the problem or whether the legislative discretion should have been exercised in another way20.
De facto, the Court appears to take account of a number of factors when deciding whether an interference with Convention rights is proportionate or not. The extent to which the interference restricts the right is important. The Court will regard interference as disproportionate if it impairs the very essence of the right21, if the justification for the interference cannot be proved. For example, in theVereinigung Demokratischer Soldaten Österreichs und Gubi22 case, the Court decided that prohibiting the distribution of a journal to soldiers was disproportionate because the contents of the articles were not a serious threat to military discipline (even though they were critical of military life).
When dealing with interferences except those brought to property rights, the Court has often decided the question of proportionality by asking whether a particular measure could be achieved by a less restrictive means. For example, in the Campbell23 case, the Court rejected the justification for opening and reading all correspondence between prisoners and their solicitors, pointing out that the prison service could open, but not read, to see if they contained illicit enclosures.
When the interrelationship between the proportionality and the margin of appreciation comes to be considered, the following factors appear to be important24:
First, the significance of the right in question as the Court has stated that some Convention rights have been characterised as fundamental (such as the right to a fair trial25 or to private life26 or to freedom of expression27).
Second, the objectivity of the restriction in question as, in Sunday Times, the Court distinguished between the objective nature of maintaining the authority of the judiciary (which left a narrower margin of appreciation for the state) and the subjective nature of the protection of morals, where the Court should defer to domestic views28.
Third, when there was a consensus in law and practice among the member states as, in the Marckx29 case, the Court acknowledged an emerging consensus about the legal treatment of illegitimate children and struck down inheritance laws which discriminated against them.
5. The “European Consensus” standard
The Court interprets the Convention as a living document, often applying a teleological reading to the text based on observed consensus rather than the intent of thedrafters. But without a clear understanding of how to define consensus, the court risksillegitimacy with this approach30.
The “European Consensus” standard is a generic label used to describe the Court’s inquiry into the existence or non-existence of a common ground, mostly in the law and practice of the Member States.
This standard has played a key-role in the wider or narrower character the application of the margin of appreciation adopts in practice. Generally speaking, the existence of similar patterns of practice or regulation across the different Member States will legitimize a wider margin of appreciation for the State that stays within that framework and delegitimize attempts to part ways with them31.
Against this background, the non-existence of a European consensus on the subject-matter will be normally accompanied by a wider margin of appreciation accorded to the State in question. The European consensus criterion has, however, been criticized on different accounts, including the lack of profound and detailed comparative research in which it claims to reside.
Sometimes, a country that “stays behind” is sanctioned.
In Marckx, the Court analysed the former distinction in Belgian law between the “legitimate” and “illegitimate” family. The Court noted that at the time when the Convention was drafted, such a distinction was regarded as permissive and normal in many European countries. However, the Court can only be struck by the fact that the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve, at a similar pace with the relevant international instruments, towards a full juridical recognition of the legal maxim“mater simper certa est”.para.41
Nevertheless, in Handyside, where the “legitimate aim” was the protection of morals -- the reason why a wider margin of appreciation was granted -- was the lack of a European conception of morals.
The objective of Chapter 1 is the extraction and examination of the main principles the Strasbourg organs use when analysing if an interference with one or several Convention rights may be included in the Member States’ margin of appreciation.
Altogether, these principles form a test and without their full understanding, a clear explanation of the margin of appreciation doctrine remains impossible.
In Chapter 2, the present study focuses on the application of the principles analysed in Chapter 1from the Handyside case to the latest Court case-law concerning the margin of appreciation doctrine.
CHAPTER 2 The margin of appreciation doctrine in the jurisprudence of the European Court of Human Rights
As two members of the Court have suggested32, the limits of the margin of appreciation are incapable of an abstract definition. The margin of appreciation is thus “context dependent” and its limits can be drawn only within a specific case33. For this reason, the second part of the present study shows the way in which the principles analysed in the first part are to be applied in the Court’s case-law.
1. The margin of appreciation doctrine in the jurisprudence of Article 15
Given the emergency situations under Art.15, the margin of appreciation was first affirmed by the European Commission of Human Rights on the grounds that the national authorities are better placed to judge than the Strasbourg institutions. This is what the doctrine calls the better position rationale34. In the Cyprus case (Greece v. The United Kingdom 1958-1959), the Commission declared itself competent to decide whether such a derogation was justified and whether the measures invoked were limited to those “strictly required by the exigencies of the situation”. The Commission stated that the Government should be able to exercise a certain measure of discretion.
This assertion was confirmed in a series of subsequent cases35. For example, in the Greek case the application of the margin of appreciations was limited to the question of proportionality, but in Lawless case the Commission extended its application when determining if an emergency exists36.
Also, in Brannigan and McBride case and inIreland v. The United Kingdomcase, the Court held that37: “By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and the scope of derogations necessary to avert it. In this matter Art.15 (1) leaves the authorities a wide margin of appreciation.” So, the Court defers to the decision of the national authorities because the latter are better placed to decide on politically sensitive issues within a particular Member State.
The national authorities are better placed than the Strasbourg institutions to judge because: choosing between different responses is not an easy task; the choice may be political and controversial and different responses may be justified in different situations in different states.
Taking into consideration the contemporary day events, it has been argued that the global war on terror has stretched the limits of article 15 and demands a rethink of the derogation regime because the “shift in the normalcy-emergency paradigm - a global trend since September 11 – has become permanent”38. The conclusion that ca be drawn from this cases is that the decisions to derogate and the measures taken to combat the crisis remain justiciable at Strasbourg although they are subject to a wide margin of appreciation. It is for the Court to determine whether the states have gone beyond the extent strictly required by the exigencies of the crisis, giving “appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of the emergency situation”, as the Court stated in Brannigan case.
2. The margin of appreciation doctrine in the jurisprudence of Articles 8-11
Leaving aside the discussion under Article 15 – as the application of the doctrine to this right is less frequent –, the margin of appreciation has been used in connection to those articles of the Convention that have “accommodation” or “limitation clauses”39, i.e. Articles 8 to 11. These articles involve qualified rights, which are not absolute and have concomitant limitations expressed within the right itself40.
Also, all of them are drafted in a common form41. The first paragraph of each article states the right, while the second allows the State party to breach its negative obligation of non-interference in individual liberty under a set of conditions established: “in accordance with the law” (Art. 8) or “prescribed by law” (Arts. 9, 10, 11); meets one of the legitimate aims; and is “necessary in a democratic society”. The term “necessary” implies a proportionality test and the interpretation of the phrase “necessary in a democratic society” epitomises the tension created by the collision between the individuals and the society42.
The proportionality principle permits variable margins of appreciation. The nature of the right involved is an important factor for the justification of a wide or narrow margin of appreciation. That is why, in Sunday Timescase, the Court stated: “what is necessary is more than what is desirable or reasonable, although it need not be indispensable”. Definitely, the more important the rights in the scheme of the Convention are, the more convincing the reasons required to justify a restriction in them will be.
In the Dicksoncase (regarding the applicants’ request for artificial insemination in prison), the Court held that where a particularly important facet of an individual's existence or identity is at stake, the margin of appreciation accorded to a State will, in general, be restricted43.
However, where there is no consensus within the Member States, either as to the relative importance of the interest at stake or as to how is best to protect it, the margin will be wider. As mentioned in the Evanscase (concerning the right to withdraw consent to the use of the genetic material up to the moment of implantation of the resulting embryo), there will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights44.
Another essential element in determining the limits of the margin of appreciation is the aim that the limitation in question is intended to pursue.
a). The protection of morals
States have been allowed a wide margin of appreciation with respect to the protection of morals on the grounds that this notion varies between Member States. One of the most relevant cases in which the Court has analysed the limits of the margin of appreciation in the context of public morals justification is the above-mentioned, Handyside. The Court did not find a violation of Art.10 on the ground that the state had a legitimate aim to protect morals. The Court could not identify a uniform conception of morals in the domestic law of the various Member States because “the requirements of morals vary from time to time and from place to place, especially in our era, which is characterised by a rapid and far-reaching evolution of opinions on the subject”45. It then added that the State authorities are, in principle, in a better position than the international judge to give an opinion on the exact content of these requirements because of their “direct and continuous contact with the vital forces of their countries”46.
The same concept of the national authorities being better placed to decide on questions of morals because there was no uniform European conception is met in the Müller case47 – where the Court did not find the seizure of the paintings depicting sexual acts, including homosexuality and bestiality, as a violation of Art.10.
To the contrary, the Court did not follow the judgment presented above in the Open Door and Dublin Well Woman case. It considered that the restraining of the provisions of information to pregnant women about abortion facilities abroad violated Art. 10. The Court noted that „the national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life”48.
The Court followed the same approach in the cases under Article 8. In the Dudgeoncase49 (about the laws in Northern Ireland criminalising homosexual activities in private life between consenting adults), the Court’s decision that such laws violated the Convention , was not based on the state’s sovereignty, but instead, on the observed consensus within Europe that sodomy laws, while doing little to protect morality, were a serious violation of privacy50.
b). The authority of the judiciary
Three years later after Handyside, in Sunday Timescase, the Court ruled on the prohibition of the publication of an article by the Sunday Times newspaper, relating to the thalidomide-scandal, a matter which was still pending before the courts and falling for that reason under the British doctrine of „contempt of court”51. The majority of the judges concluded that Article 10 had been violated. The Court held that unlike the concept of morals, the notion ofauthority of the judiciary is objective, and „the domestic law and practice of the Contracting States reveal a fairly substantial measure of common ground in this area”52.
As the Court noted in other cases53, when a European consensus on the meaning or need for limitations on particular rights is absent, as it was in Handyside for instance, the margin available to governments expands54. Conversely, when consensus is present, it is taken to mean that the “core” meaning of the right is narrowly defined, and the margin to deviate will thus contract.
c). The prevention of disorder or crime
In Otto-Preminger-Institut case, the Court accepted that the provisions of the Austrian Penal Code which permitted seizure of a film considered to offend the religious sensibilities of Roman catholics were „intended to supress behaviour directed against objects of religious veneration that is likely to cause „justifies indignation” and so operated to prevent public disorder55.
InParti Nationaliste Basquecase, concerning the refusal of authorisation of a funding association, the Court noted that „it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”56.
In so doing, the Court also has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Art. 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts57. In conclusion, the Court considered that the interference with the applicant party's right to freedom of association may be regarded as “necessary in a democratic society” for the prevention of disorder within the meaning of Art. 11 of the Convention.
d). The interest of national security and economic well-being of the country On the contrary, the Court recognized a wide margin of appreciation with regard to restriction of the right to protection of privacy in theinterest of national security. This was the situation in the Klass58 case, where the German authorities were granted a measure of discretion in fixing the conditions under which to prepare a system of secret surveillance in the fight against terrorism, these actions being deemed necessary in a democratic society in the interests of national security and prevention of crime. For this reason, the Court noted that it was not for it to substitute national authorities for any assessment of what might be the best policy in this field.
Later, in the Lambertcase, by applying the proportionality test, the Court reached the conclusion that in the absence of an “<effective controle> available to the applicant to challenge the telephone tapping to which he had been made subject - which would have been capable of restricting the interference in question to what was <necessary in a democratic society>” –there had been a violation of Article 859.
In the Hatton case, concerning an alleged breach of Art.8 arising from exposure to aircraft noise, the Court analysed whether the Government had struck a fair balance between the economic interests of the country as a whole and the conflicting interests of the persons affected by noise disturbances. After noting that it “must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue”60, the Court held that there had been no breach of Art. 8.
As regards the application of the interest of national security under Art. 11, in the Ždanokacase – which regards the applicant’s disqualification from standing for election to Parliament and local councils on account of her active participation in the Communist Party of Latvia –, the Court noted that the State’s action was disproportionate to the aim pursued and, consequently, not necessary in a democratic society. Therefore, there had been a violation of Art. 11 of the Convention61.
e). Protecting the rights and freedoms of others
Similar reasoning to those used in morality cases have been fielded in issues touching upon the role and significance of religion in society. In Wingrove, after reaffirming the lack of a European consensus on the requirements of the protection of rights of others in relation to attacks on their religious conviction62, the Court noted that the position of the government of U.K. on the issue was both relevant and sufficient for the purposes of Art. 10(2) and that their decision cannot be said to reveal any signs of arbitrary nature or excessiveness.
In the recent Tavli case – regarding an action for rejection of paternity – the Court held that there has been a violation of Art. 8 and reiterated: “regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation”63. This reasoning was also used by the Court in the above-mentioned Dicksoncase, where, after analysing the proportionality of the state’s action, it noted that “the absence of an assessment that regards a matter of significant importance for the applicants, must be seen as falling outside any acceptable margin of appreciation so that a fair balance was not struck between the competing public and private interests involved”64.
Two cases involving laws banning headscarves in public institutions – Dahlab65 and Sahin66 – were brought before the Court. The applicants claimed that their rights under Article 9 had been violated. The Court decided that the measures undertaken by the Turkish and Swiss governments fell under the legitimate aim in Art.9 para.2 of protecting the rights and freedoms of others, and in the case of Sahin, maintaining public order.
In both cases, the Court applied a broad margin of appreciation because there was little or no consensus within the community as to whether to wear a veil was included in the protection afforded by Article 9. Applying the proportionality test on different factors, the Court reached the same conclusion: the lack of a core European consensus on how to treat the wearing of religious symbols justifies the actions of the State authorities, they being granted with a wide margin of appreciation.
In the Eski case, concerning the applicant’s rights to visit his daughter, the Court stated that although „the authorities enjoy a wide margin of appreciation in particular when deciding on custody, a stricter scrutiny is called for regarding any further limitations and any legal safeguards designed to secure an effective protection of the right of parents and children to have their family life respected. Article 8 requires that the domestic authorities strike a fair balance between the interests involved and that, in the balancing process, a particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents”67.
The above-mentioned jurisprudence under Articles 8-11 proves that the Court’s reasoning in these matters has developed into one of the favourite fields to use a margin of appreciation analysis. As judge Macdonald has acknowledged, „the margin of appreciation is the heart of virtually all major cases that come before the Court, whether the judgments refer to it explicitly or not”68.
3. The margin of appreciation doctrine in the jurisprudence of Article 14
The margin of appreciation permitted under Art.14 is similar to the test available under paragraphs 2 of the Art.8-1169 because the Court looks for an objective and reasonable justification for the unequal treatment, a legitimate aim and a reasonable relationship of proportionality between means and goals70.
Although Art.14 suggests that discrimination is an objective matter, in the Belgian Linguistics case71 the Court pointed out that a distinction between difference and discrimination must be made and also stated that a difference in treatment was not necessarily discriminatory, provided a reasonable and objective basis could be found.
Therefore, a fair balance had been struck between protecting the interests of the community and respecting fundamental rights. For example, in the Petrov case72the Court held that a certain margin of appreciation may be allowed “to treat differently” married and unmarried couples in the fields of, for instance, taxation, social security or social policy , but not as regards the possibility to maintain contact by telephone while one of them is in custody , which was seen as discriminatory.
In drawing the line between difference and discrimination the Court also took into consideration whether the practice in question is regarded as non-discriminatory in other democratic states. For example, in the Rasmussen case the Court stated that: “The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States”73. The relevance of consensus among Member States was also pointed out in the Frette74 case where the Court said that: “Since the delicate issues raised in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State”.
Also, the importance of the consensus can be found in the context of gender discrimination where the Court takes an explicitly progressive point of view. For example, in the Abdulaziz, Cabales and Balkandaly75 case the Court relates to the policy goals of the member state rather than the achievements in the laws: “the advancement of the equality of the sexes is today a major goal”.
However, in cases where the evolution is seen as less uniform , the Court does not take this progressive approach: in the Engel and others case76 concerning distinctions in disciplinary treatment between officers and ordinary servicemen the Court said that “inequalities are traditionally encountered in the states and at the time in question the distinctions attacked by the three applicants had their equivalent in the internal legal system of practically all the Contracting states”.
The consensus among States is linked to the principle of subsidiarity: when the distinction between difference and discrimination is hard to draw the Court does not substitute its point of view for that of the national authorities, unless a more objective distinction can be found in the practice of other states77.
4. The margin of appreciation doctrine in the jurisprudence of Article 1 of Protocol No.1
Article 1 of Protocol No.1 safeguards a right to property and contains three different rules which are evaluated by the Court taking into consideration the margin of appreciation.
a). Peaceful enjoyment of one’s possessions
In this context the Court analyses whether a proper balance has been struck between the demands of the society’s general interest and the requirements of protecting the rights of the individual.
For example, in the Sporrong and Lonnroth case (concerning the length of period during which the applicants property bad been subjected to expropriation permits) the Court took into account the margin of appreciation to determine which measures are necessary for the general interest in order to evaluate if a proper balance has been struck. So, there must be established a reasonable relationship of proportionality between the means employed and the aim sought to be realized78.
b). Deprivation of one’s possessions
In this context the Court will evaluate whether a deprivation is in the “public interest” but it will exercise only minimal control over it because the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”79.
So being, the States are granted a wide “discretion” in assessing the problem of public concern and the remedial action to be taken, and the Court will make deference to their judgments unless that judgment is manifestly without reasonable foundation.
Further explanation is required in order to clarify the relationship between the margin of appreciation and the interpretations of different notions used in the Convention. To begin with, the Convention uses sometimes expressions which, in themselves, have no exact or generally accepted meaning and such provisions leave States a certain margin of appreciation with regard to the fulfillment of their obligations. For example, the notions “public interest” or “possessions” permit different interpretations80.
However, the vague and general character of these notions is not the reason why states are granted a certain margin of appreciation because the Court in many instances prefers to give its own “autonomous” interpretation. This is the case of “possessions” notion which is not limited to physical goods81. Therefore, autonomous interpretation and margin of appreciation are opposites82 and this means that due to the autonomous interpretation of “possessions” the margin of appreciation became narrowed, while the states enjoy a certain power of discretion in identifying the public interest.
A similar minimal control is exercised concerning the standard of compensation83 and in the assessment of the proportionality of the interference84. Regarding this, in the James and others case the Court interpreted Art.1 of Protocol No.1 as incorporating the principle that the taking of property in the public interest should entail payment of compensation because there is consensus among member states. This means that there is a very wide discretion to interfere with the right of property, provided that reasonable compensation is paid85, although the value of compensation may vary.
c). Control of the use of property
The Court recognized a wide margin of appreciation because it is stated in the text itself and it is also the reason why it was held in the Agosi case that “In determining whether a fair balance exists, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the lawin question”86.
Also, in the case of Öneryildiz87 the Court accepted that the exercise of discretion encompassing a multitude of local factors is inherent in the choice and implementation of town and country planning policies and of any resulting measures.
Under the control provisions the Court will determine whether a fair balance exists taking into account the circumstances of each case, the avoidance of arbitrariness, the possibility of other alternatives for achieving the aim in question, the availability of procedural safeguards and the consequences of the interference for those affected by it.
Still, the margin of appreciation in the context of proportionality is so wide that the Court rarely found a violation of Art.1 of Protocol No.1 based on the lack of proportionality, simply because the interference in the use of property is, by itself, less significant than in the case of deprivation of one’s possessions. Another reason that may be invoked is that the control of the use of property requires a legislate activity and the Court cannot serve as a substitute for national authorities.
d).Restitution of confiscated property in Eastern European Countries
The Court stated that the right to property cannot be interpreted as imposing any general obligation on the States to restore property. Also, it does not impose any restrictions on the States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights88 because States enjoy a wide margin of appreciation regarding to the exclusion of certain categories of former owners from such entitlement.
Also, the Court held that the enactment of laws providing for restitution of confiscated property obviously involved comprehensive consideration of manifold issues of a moral, legal, political and economic nature. So, the States have a wide margin of appreciation in assessing the existence of a problem of public concern warranting specific measures and in implementing social and economic policies89.
Still, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner90.This means that states have a positive obligation to legislate in this context and furthermore, their power of discretion is therefore limited.
5. The margin of appreciation doctrine in the jurisprudence of Article 6
As we pointed out before, the margin of appreciation is the heart of virtually all major judgments, and cases relating to Art.6 make no exception. Due to the abundance of the Court’s jurisprudence is important to underline the most relevant aspects to the topic in question.
To begin with, in many Art.6 cases the Court makes an autonomous interpretation elaborating its own concept of what is a “criminal charge”, “civil rights and obligations”, “tribunal” or “witnesses”. These are key concepts to the field of application of Art.6, leaving a very narrow margin of appreciation for states, or no discretion at all.
Secondly, as the doctrine emphasized91, “this provision should not be solely considered in the light of the classic liberal, laissez-faire rights, but as requiring positive obligations on the part of Member States.” In that respect, the Court recognizes that the right of access to the courts corresponds to a positive duty for the states, because by its very nature, this right calls for regulations by the state, regulations which may vary in time and in place according to the needs and resources of the community and individuals92. In this context, the states enjoy a margin of appreciation as limitations of the right of access are permitted by implication93 and in accordance with the very essence requirement.
Although the right of access to courts is not absolute, as the Court held in the Golder94case, the limitations will not interfere with the very essence of the right in question if they pursue a legitimate aim, and if between the means and the aim sought to be realized is a reasonable relationship of proportionality – Bellet v. France 1995. Later, in the case of Z and others95 the Court said that the right to access to courts “may be subject to legitimate restrictions such as statutory limitations period, security for costs orders, regulations concerning minors and persons of unsound mind”.
Thirdly, the obligations for courts to give reason for their judgment varies according to the nature of the decision, the circumstances of the case and, as the Court said in the case of Ruiz Torija96 “it is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments”.
Fourthly, other positive duties which emerge from the article 6 bring out a wide discretion as regards the choice of the means, for example in relation to the right to take part in person in the hearing – Colozza97case, the right to free legal assistance – Quaranta98 case, the right to have adequate time and facilities for the preparation of defense – Hadjianastassiou99 case, the right to defend himself in person or through legal assistance or the right to be judged in a reasonable time – Guisset100 case.
Finally, the states enjoy a greater power of discretion when dealing with civil cases because second and third paragraphs contain detailed provisions for criminal cases, which have no equivalent with civil cases.
To sum up, Art.6 grants a certain margin of appreciation for the Member States, and it has been said that in certain cases, the margin of appreciation was implied although no mention about it was made101. Nevertheless, it is of great importance to emphasize the fact that the margin of appreciation is different from that relating to articles 8-11, because the Court is concerned with procedural fairness and the States are, therefore, permitted a wide discretion concerning the formalities of trial process, which suggests an “implementation discretion”102.
6. The margin of appreciation doctrine in the jurisprudence of Article 2 of Protocol No. 1
In this context, the States have a wide margin of appreciation regarding the following: the resources it devotes to the system of education and its organization103; the measures taken for regulating education104. Also, the states are not obliged to provide selective schools105 or particular types of adult education106, nor to establish schools which provide education in a particular language107 or in accordance with particular religious convictions108.
Interestingly, in the cases concerning Roma’s children placed in special schools109 , the Court analysed the right to education in relation to Art.14.
First, it held that the setting and planning of the curriculum fell in principle within the competence of the Member States.
Second, while in the D.H. and Others case the Court found that the difference in treatment was based on race, which required the strictest scrutiny, in the Oršuš and others case the difference in treatment was based on adequacy of language skills, which allowed for a wider margin of appreciation. This “discretion” cannot be prohibited from setting up separate classes or different types of school for children with difficulties, or implementing special educational programmes to respond to special needs.
Therefore, the different practice applied to Roma children on the ground of their insufficient knowledge of the Croatian language did not amount to a violation of Art.14 in conjunction with Art.2 of Protocol No.1.
7. The margin of appreciation doctrine in the jurisprudence of Article 3 of Protocol No. 1
The Court granted a wide margin of appreciation regarding: the conditions on the rights to vote and stand for elections such as status of parliamentarians, including criteria for disqualification110; the choice of voting system111 due to the large variety of situations provided for in the electoral legislation of numerous Member States.
Still, in some recent cases, the Court’s view seems to have changed.
For example, in Krasnov and Skuratov112case, regarding the criteria for disqualification, the Court assesed that authorities' decision on the second applicant's ineligibility grounded on his alleged failure to submit accurate information on his employment and party membership, was not based on relevant and sufficient reasons.
Also, in Sarukhanyan113case, the disqualification on the ground that the applicant had submitted false information about his property status, was seen as disproportionate to the legitimate aim pursued.
The Court held that restrictions on the right to vote are subject to the proportionality test and do not fall within an acceptable margin of appreciation when the State imposed an absolute ban on voting by any serving prisoner in any circumstances114. Similarly, restrictions on the right to stand for elections must pursue a legitimate aim and the means of achieving the aim pursued must not be disproportionate115.
8. The margin of appreciation doctrine in the jurisprudence of Articles 2 – 5
Although there is no limit “a priori”116 to the articles to which the margin of appreciation can be applied – as we have seen before –, the doctrine has been explicitly used in conjunction with a number of the Convention’s specific provisions, while others – as we are about to see – have been traditionally left out of its domain of application117. The rights protected by the Articles 2, 3 and 4 of the Convention have been considered as absolute rights, generating absolute obligations for the Member States and banning an incomplete application.
The right to life cannot be balanced either against other rights or against the lawful pursuit of law enforcement goals, because it is strongly prioritized by the “absolute necessity” test. Yet, like in the context of other provisions of the Convention, the lack of consensus among Member States determines the Court’s opinion that the matter is best left to individual states.
One example of such a case is Pretty v. U.K., concerning the right to assisted suicide, where the Court refused to acknowledge a right to die under Art. 2. Although the Court did not explicitly discuss or apply the margin of appreciation, in the lack of a European consensus on the subject matter, the balance of interests weighed in favour of the U.K., and thus, the discretion afforded to the State was wide118.
Based on Art. 3, the Court has held on several cases that “the absolute nature of the protection” afforded by Art. 3 is such that, in determining whether the issue of state responsibility arises there is no room for “balancing the risk of ill-treatment against the reasons for expulsion”119. Balancing the rights protected by this article against other rights or against any public interest is therefore not appropriate120.
Also, as regards the application of the doctrine under Art. 4, although the exceptions provided by the 3rd para. are broadly expressed, they have been narrowly interpreted, leaving little scope for a domestic margin of appreciation, or for balancing with the right in Art. 4(2) itself121.
Thus, relying on the principles of proportionality, commonalty, legality, and non-discrimination, the Court has offered explanations on the exceptions mentioned in the 3rd paragraph, refusing to recognize a states’ certain margin in appreciation122.
Art. 5 permits little scope for a domestic margin of appreciation, in the sense of a balance between the exercise of the right to liberty and the interference in the pursuit of a collective good123.
In relation to Art. 5 (1)(a), which concerns detention following conviction, it is quite obvious that any test of necessity would be quite inappropriate. As far as the other cases listed in para. 1 are concerned, they should be read as if the element of necessity were an integral part of them.
In fact, any such depravation of liberty which cannot be regarded as necessary – i.e. as satisfying a “pressing social need” and as being proportional to the aim pursued – must be regarded as arbitrary and thereby in violation of the Convention. At any rate, the fact that the necessity requirement was not written into the text of the exception does not exclude the relevance for their interpretation124.
The analysis of the Court in N.C. case showed that, despite the reasons given above, it was prepared to retain a requirement of necessity in cases where it is appropriate: “It does not suffice that the deprivation of liberty is executed in conformity with national law; it must also be necessary in the circumstances”125.
In the Ambruszkiewicz case, the Court applied a proportionality test to detention falling under Article 5(1)(c), when considering whether the applicant’s detention on remand was strictly necessary to ensure his presence at the trial and whether other, less stringent, measures could have been sufficient for that purpose126.
A similar test was applied by the Court in the recent Ladent case, in the related Art. 5(3) context of pre-trial detention, when examining the relevance and sufficiency of the reasons given by the domestic authorities for maintaining pre-trial detention127. Thus, the Court found that “the detention order imposed on the applicant in these circumstances could not be considered a proportionate measure to achieve the stated aim of securing the proper conduct of criminal proceedings, having regarded in particular to the petty nature of the offence which he had been alleged to commit”128.
The European Court of Human Rights is a unique tribunal that faces many issues that are not traditionally handled in an international forum129. The margin of appreciation allows for, and sometimes requires the Court, as in Ms. Pretty’s case, to fulfil both the duty of protecting the human rights and the one of respecting its subsidiary role.
Prior to the signing of the Convention, the States had a discretionary power regarding the protection of the human rights at a national level.
At the time of its enforcement, the Convention was endorsed as a minimum standard by the Member States of the Council of Europe. This means that the States have the possibility to ensure a higher level of protection of these rights, and, also, the obligation not to decrease the standard within their own legal systems.
Given the purpose of creating a common standard, the States gave up a considerable part of their sovereignty which was seen as the freedom of choice in implementing a national system of human rights protection. In this context, the margin of appreciation can be found only in several domains which preserve the States’ freedom of action.
However, the margin of appreciation goes hand in hand with the European supervision. The rationale behind the European review resides in the Court’s fundamental role as an arbitrator between the States and their citizens.
This implies the need for the Court to establish a fair balance between two diverging interests: the interest of the States in maintaining a wider power of discretion and the applicant’s interest in benefiting from a higher level of protection. The interests are opposite due to the fact that, usually, a wider power of discretion signifies a lower protection standard for the citizens.
Therefore, the margin of appreciation doctrine may be analysed from two different points of view: the State’s and the individual’s.
Ultimately, the Court has to choose.
The final decision on how much latitude is to be given to national authorities depends on the weight the Court attaches to the following factors: the European consensus, the nature of the right and the aim pursued by the contested measure.
This is the reason why the key for understanding how and where discretion legitimately arises, is to fully grasp the means in which the Court attemps to achieve a fair balance between the two interests.
Nevertheless, the encoding of the way in which the margin of appreciation applies is of great relevance, given that the Convention was created not in the interest of the States, but for the benefit of their citizens.
TABLE OF CASES BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS ( in the order of their analisis in the present study)
· Handyside v. The United Kingdom, judgment of 07.12.1976
· Malone v. The United Kingdom, judgment of 02.08.1984.
· Silver v. The United Kingdom, judgment of 23.03.1983
· Sunday Times v. The United Kingdom, judgment of 26.04.1979
· James and others v. The United Kingdom, judgment of 21.02.1986
· Vereinigung Demokratischer Soldaten Osterreichs und Gubi v. Austria, judgment of 19.12.1994
· Campbell v. The United Kingdom, judgment of 25.03.1992
· Delcourt v. Belgium, judgment of 17.01.1970
· Dudgeon v. The United Kingdom, judgment of 22.10.1981
· Muller v. Switzerland, judgment of 24.05.1988.
· Marckx v. Belgium, judgment of 13.06.1979
· Rasmussen v. Denmark, judgment of 28.11.1984
· Greece v. The United Kingdom 1958-1959
· Denmark, Norway, Sweden and the Netherlands v. Greece-5.11.1960;
· Ireland v. The United Kingdom, judgment of 18.01.1978
· Lawless v. Ireland, judgment of 01.071961
· Brannigan and McBride v. The United Kingdom, Judgment of 26.05.1993
· Aksoy v. Turkey, judgment of 18.12.1996
· Dickson v. The United Kingdom, judgment of 04.12.2007
· Evans v. The United Kingdom, judgment of 25.04.2007
· Open Door and Dublin Well Woman v. Ireland, judgment of 29.10.1992
· Norrisv. Ireland, judgment of 26.10. 1988
· Otto-Preminger-Institut v. Austria, judgment of 20.09.1994
· Parti Nationaliste Basque – Organisation Régionale d'Iparralde v. France, judgment of 07.09.2007
· Sidiropoulos and Others v. Greece, judgment of 10.07.1998
· United Communist Party of Turkey and Others v. Turkey, judgment of 30.01.1998
· Klass and others v. Germany, judgment of 06.09.1978
· Lambert v. France, judgment of 24.08.1998
· Hatton v. The United Kingdom, judgment of 03.07.2003
· Ždanoka v. Latvia, judgment of 16.03.2006
· Wingrove v. The United Kingdom, judgment of 26.11.1996
· Tavli v. Turkey, judgment of 09.02.2007
· Dahlab v. Switzerland, judgment of 15.02.2001
· Sahin v. Turkey, judgment of 10.11.2005
· Eski v. Austria, judgment of 25.04.2007
· Case "Relating to certain aspects of the laws on the use of languages in education in Belgium" v. Belgium,judgment of 09.02.1967
· Petrov v. Bulgaria, judgment of 22.05.2008
· Runkee and White v. The United Kingdom, judgment of 10.05.2007
· Frette v. France, judgment of 26.02.2002
· Abdulaziz, Cabales and Balkandaly v. The United Kingdom, judgment of 28.05.1985
· Engel and others v. The United Kingdom, judgment of 8.06.1976
· Gasus Dosier und Fördertechnik Gmbh v. The Netherlands, Judgment of 23.02.1995
· Lithgow and others v. The United Kingdom, judgment of 8.06.1986
· Almeida Garrett, Mascarenhas Falcão and others v. Portugal, judgment of 11.01.2000
· Hakansson and Sturesson v. Sweden, judgment of 21.02.1990
· Agosi v. The United Kingdom, judgment of 24.10.1986
· Öneryildiz v. Turkey, judgment of 30.11.2004,
· Jantner v. Slovakia, judgment of 4.03.2003
· Kopeckı v. Slovakia, judgment of 28.09.2004
· Păduraru v. România, judgment of 01.12.2005
· The former King of Greece and Others v. Greece, judgment of 23.11.2000
· Vasilescu v. Romania, judgment of 22.05.1998
· Beyeler v. Italy, judgment of 05.01.2000
· Sovtransavto Holding v. Ukraine, judgment of 25.07.2002
· Broniowskiv v. Poland, judgment of 22.06.2004
· Fayed v. The United Kingdom, judgment of 21.09.1994
· Golder v. The United Kingdom, judgment of 21.02.1975
· Bakan v. Turkey, judgment of 12.06. 2007
· Z and others v. The United Kingdom, judgment of 10.05.2001
· Ruiz Torija v. Spain- judgment of 09.12.1994.
· Colozza v. Italy judgment of 12.02.1985
· Quaranta v. Switzerland judgment of 24.05.1991
· Hadjianastassiou v. Greece judgment of 16.12.1992
· Guisset v. France, judgment of 26.09.2000
· Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 25.12.1976
· W and D.M. and H. I. v. The United Kingdom, judgment of 06.03.1984
· X v. Belgium, judgment of 29.09.1975.
· X v. The United Kingdom, judgment of 02.05.1978
· D.H and others v. The Czech Republic, judgment of 13.11.2007
· Oršuš and others v. Croatia, judgment of 17.07.2008
· Gitonas and Others v. Greece, judgment of 01.07.1997
· Santoro V. Italy, judgment of 01.07.2004
· Krasnov and Skuratov v. Russia, judgment of 19 2007
· Sarukhanyan v. Armenia, judgment of 27.05.2008
· Mathieu-Mohin and Clerfayt v. Belgium, judgment of 02.03.1987
· Yumak and Sadak v. Turkey, judgment of 30.01. 2007
· Hirst v. The United Kingdom (No.2), judgment of 30.03.2004
· Campagnano v. Italy, judgment of 23.03.2006
· Pretty v. The United Kingdom, judgment of 29.07.2002
· Chahal v. The United Kingdom, judgment of 15 November 1996
· Ahmed v. Austria, judgment of 17.12.1996
· Zarb Adami v. Malta, judgment of 20.09.2006
· Van Der Mussele, judgment of 23.11.1983
· N.C. v. Italy, judgment of 18.12.2002
· Ambruszkiewicz v. Poland, judgment of 04.05.2006
· McKay v. The United Kingdom, judgment of 03.10.2006
· Ladent v. Poland, judgment of 18.06.2008
· S. Greer – The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Council of Europe, 2000
· G. Nolte – General Principles of German and European Administrative Law – A Comparison in Historical Perspective, Modern Law Review Limited, Blackwell Publishing, Oxford, 1994
· Jacobs & White – The European Convention on Human Rights, Oxford, 2006
· Radu Chiriţă, – Convenţia europeană a drepturilor omului, – CH Beck, Bucharest, 2007
· H. Waldock – The Effectiveness of the System set up by the European Convention on Human Rights, Human Rights Law Journal, Oxford, 1980
· Helen Fenwick – Civil Liberties and Human Rights –Cavendish Publishing Limited, London, 2005
· Van Dijk and Van Hoof – Theory and Practice of the European Convention on Human Rights, Kluwer,1998
· R. Clayton, H. Tomlinson – The Law of Human Rights, Oxford, 2000
· R.St.J. Macdonald, F. Matscher, H. Petzold – The European System for the Protection of Human Rights,Martinus Nijhoff Publishers, Dordrecht, 1993
· Jeroen Schokkenbroek – The Basis, Nature and Application of the Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights, 19 Human Rights Law Journal 30, 31 (1998)
· S. Foster – Human Rights and Civil Liberties, Longman, 2003
· M. Janis, R. Kay, A. Bradley – European Human Rights Law. Texts and materials – Oxford, 2000
· R. Gordon, T. Ward, T. Eicke – The Strasbourg Case Law – Sweet & Maxwell, London, 2001
· R.A. Lawson, H.G. Schermers – Leading cases of the European Court of Human Rights – Ars Aequi Libri, Nijmegen, 1997
· Corneliu Bîrsan – Convenţia Europeană a Drepturilor Omului, vol. 1, All Beck, Bucharest, 2005
· R. Clayton, H.Tomlinson – The Law of Human Rights, Oxford, 2000
· L. R. Helfer – Consensus, Coherence, and the European Convention on Human Rights, 26 CORNELL INT’L L.J. 133, 135 (1993).
· Judge Bernhardt – Thoughts on the Interpretation of Human-Rights Treaties, Protecting Human Rights: The European Dimension (1988) eds. Matscher and Petzold
· Judge MacDonald – The Margin of Appreciation, in Macdonald, Matscher and Petzold (eds.)
· N. Lavender – The Problem of the Margin of Appreciation, European Human Rights Law Review, no.4/1997
· K.A. Kavanaugh – Policing The Margins: Rights Protection And The European Court Of Human Rights, E.H.R.L.R. 2006, 4, p. 422-444
· Rasilla del Mortal – The Increasingly Marginal Appreciation of the Margin of Appreciation Doctrine, German Law Journal, vol. 7, no. 6/ 1 June 2006
· Aaron A. Ostrovsky – How the Margin of Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals, Hanse Law Review, Vol. 1 No. 1, 2005
· R.St.J. MacDonald – The margin of appreciation in the jurisprudence of the ECHR, in International Law at the time of its codification, Essays in honour of Roberto Ago, Milan, 1987
· E. Brems – The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human– Rights (1996) 56 Zeitschrift für Auslandisches Offentliches Recht und Volkrecht · Y.Arai-Takahashi – The Margin Of Appreciation Doctrine and The Principle of Proportionality in the Jurisprudence of ECHR– Antwerp, 2002
· F. Ost, The original Canons of Interpretation of The European Court of Human Rights, in: The European Convention of Human Rights (M.Delmas-Marty, ed. 1992)
· Y. Winisdoerffer, “Margin of Appreciation and Article 1 of Protocol No. 1” 1998 Human Rights Law Journal 18-20
· St. Greer – The European Convention on Human Rights. Achievements, Problems and Prospects, Cambridge, Studies in European law and policy, 2006
· C. Morrison – The Margin of Appreciation Doctrine Standards in the Jurisprudence of the European Court of Human Rights, no. 4, Human Rights Quarterly, 1982
· St. Trechsel – Liberty and Security of Person: The Rules on Imprisonment, Oxford University Press, 2006
· E. Wada – A pretty picture: the Margin of Appreciation and the Right to Assisted Suicide, Loyola Law School L.A. Law review, vol 27:275, May 2005
· O. Predescu, M. Udroiu –Convenţia Europeană a Drepturilor Omului şi Dreptul procesual roman, CHBeck, Bucureşti, 2007
The Romanian team of the National Institute of Magistracy
Note1 S. Greer – The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Council of Europe, 2000, p. 5
Note2 G. Nolte – General Principles of German and European Administrative Law – A Comparison in Historical Perspective, Modern Law Review Limited, Blackwell Publishing, Oxford, 1994.
Note3 Jacobs & White – The European Convention on Human Rights – Oxford, 2006, p. 52-54;Radu Chiriţă – Convenţia europeană a drepturilor omului, – CH Beck, Bucharest, 2007, p.9-17.
Note4 H. Waldock – The Effectiveness of the System set up by the European Convention on Human Rights, Human Rights Law Journal, Oxford, 1980.
Note5 Helen Fenwick – Civil Liberties and Human Rights, Cavendish Publishing Limited, London, 2005, p.34-37.
Note6Handyside v. The United Kingdom, judgment of 7.12.1976, § 48-49.
Note7 Van Dijk and Van Hoof – Theory and Practice of the European Convention on Human Rights, Kluwer, 1998, p. 74.
Note8 R. Clayton, H. Tomlinson – The Law of Human Rights, Oxford, 2000, p. 285.
Note9 R.St.J. Macdonald, F. Matscher, H. Petzold – The European System for the Protection of Human Rights, Martinus Nijhoff Publishers, Dordrecht,1993, p.41.
Note10 SeeJeroen Schokkenbroek – The Basis, Nature and Application of the Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights, 19 Human Rights Law Journal 30, 31 (1998)
Note11 S. Foster – Human Rights and Civil Liberties, Longman, 2003, p. 44.
Note12Malone v. The United Kingdom, judgment of 02.08.1984.
Note13Silver v. The United Kingdom, judgment of 23.03.1983.
Note14Sunday Times v. The United Kingdom, judgment of 26.04.1979.
Note15 M. Janis, R. Kay, A. Bradley – European Human Rights Law. Texts and materials, Oxford, 2000, p.146-164.
Note16 R. Gordon, T. Ward, T. Eicke – The Strasbourg Case Law , Sweet & Maxwell, London, 2001, p.1125-1138.
Note17 R.A. Lawson, H.G. Schermers – Leading cases of the European Court of Human Rights, Ars Aequi Libri, Nijmegen, 1997, p. 28-42.
Note18 Corneliu Bîrsan – Convenţia Europeană a Drepturilor Omului, vol. 1, All Beck, Bucharest, 2005, p.796.
Note19 R. Clayton, H.Tomlinson – The Law of Human Rights, Oxford, 2000, p. 278.
Note20James and others v. The United Kingdom, judgment of 21.02.1986.
Note21 Case "Relating to certain aspects of the laws on the use of languages in education in Belgium" v. Belgium,judgment of 09.02.1967.
Note22Vereinigung Demokratischer Soldaten Osterreichs und Gubi v. Austria, judgment of 19.12.1994.
Note23Campbell v. The United Kingdom, judgment of 25.03.1992.
Note30 See L. R. Helfer – Consensus, Coherence, and the European Convention on Human Rights, 26 CORNELL INT’L L.J. 133, 135 (1993).
Note31Rasmussen v. Denmark, judgment of 28.11.1984.
Note32 Judge Bernhardt – Thoughts on the Interpretation of Human-Rights Treaties, Protecting Human Rights: The European Dimension (1988) eds. Matscher and Petzold, p. 65-86; Judge Macdonald – The Margin of Appreciation, in MacDonald, Matscher and Petzold (eds.), p. 83-85.
Note33 N. Lavender – The Problem of the Margin of Appreciation, European Human Rights Law Review, no.4/1997, p. 382.
Note37 Brannigan and McBride v. The United Kingdom, judgment of 26.05.1993 § 43, Ireland v. The United Kingdom, judgment of 18.01.1978 § 48.
Note38 K.A. Kavanaugh,– Policing The Margins: Rights Protection And The European Court Of Human Rights, European Human Rights Law Review 2006, 4, p. 422-444. Also, regarding the war against terrorism, The United Kingdom had entered derogation under Art.15 concerning the extended power of arrest and detention in the Anti-terrorism, Crime and Security Act – 2001. This derogation ceased to operate on 14 March 2005.
Note39 I. Rasilla del Mortal – The Increasingly Marginal Appreciation of the Margin of Appreciation Doctrine, German Law Journal, vol. 7, no. 6/ 1 June 2006.
42 Aaron A. Ostrovsky – How the Margin of Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals, Hanse Law Review, Vol. 1 No. 1, 2005, p. 50.
Note43Dickson v. The United Kingdom, judgment of 04.12.2007, § 78.
Note44Evans v. The United Kingdom, judgment of 25.04.2007, § 77.
Note45Handyside v. The United Kingdom, judgment of 07.12.1976,§ 48.
Note67Eski v. Austria, judgment of25.04.2007, § 35.
Note68 R.St.J. Macdonald – The margin of appreciation in the jurisprudence of the ECHR, in International Law at the time of its codification, Essays in honour of Roberto Ago, Milan, 1987, p. 187, 208.
Note69 However, Steven Greer argues that there are “some subtle differences” such as: the fact that art.14 does not contain a “prescribed by law” test, the fact that in the context of art.14 public interest is a matter of definition and the fact that art.14 does not involve the principle of democracy.
70 E. Brems – The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human– Rights (1996) 56 Zeitschrift für Auslandisches Offentliches Recht und Volkrecht 248;
Note71 Case "Relating to certain aspects of the laws on the use of languages in education in Belgium" v. Belgium.
Note72Petrov v. Bulgaria, judgment of 22.05.2008, § 55.
Note73 See also case of Runkee and White v. The United Kingdom, judgment of 10.05.2007, § 35.
Note75Abdulaziz, Cabales and Balkandaly v. The United Kingdom, judgment of 28.05.1985, § 78. The applicants complained that they had been victims of a practice of discrimination on the grounds of sex, race and birth because their husbands were refused permission to remain with or join them in The United Kingdom.
Note76Engel and others v. The United Kingdom, judgment of 8.06.1976.
Note77 St. Greer, op.cit., p. 31; Richard Clayton, Hugh Tomlinson, op.cit., Oxford, 2000,p. 1238.
Note78 Y.Arai-Takahashi – The Margin Of Appreciation Doctrine and The Principle of Proportionality in the Jurisprudence of ECHR– Antwerp, 2002, p. 155
Note79James and others v. The United Kingdom, judgment of 21.02.1986.
Note80 E. Brems, op.cit, p.294 and St. Greer, op.cit, p.30. The latter refers to discretion given to national authorities in interpreting indeterminate adjectival terms.
Note81Gasus Dosier und Fördertechnik Gmbh v. The Netherlands, judgment of 23.02.1995, § 53.
Note82 F. Ost, The original Canons of Interpretation of The European Court of Human Rights, in: The European Convention of Human Rights (M.Delmas-Marty, ed. 1992), p. 306.
Note83Lithgow and others v. The United Kingdom, judgment of 8.06.1986, Almeida Garrett, Mascarenhas Falcão and others v. Portugal, judgment of 11.01.2000, § 51.
Note84Hakansson and Sturesson v. Sweden, judgment of 21.02.1990, § 51-55.
Note85 Y. Winisdoerffer, “Margin of Appreciation and Article 1 of Protocol No. 1” 1998 Human Rights Law Journal 18-20, p. 20.
Note86Agosi v. The United Kingdom, judgment of 24.10.1986, § 52. The applicant complaint about the forfeiture of the coins and the refusal to restore them.
Note87Öneryildiz v. Turkey, judgment of 30.11.2004, § 128.
88Jantner v. Slovakia, judgment of 4.03.2003, § 34, Kopeckı v. Slovakia, judgment of 28.09.2004 § 25, Păduraru v. România, judgment of 01.12.2005, § 89.
Note89The former King of Greece and Others v. Greece, judgment of23.11.2000, § 87 and Kopeckı v. Slovakia § 37.
Note90Vasilescu v. Romania, judgment of 22.05.1998, § 51; Beyeler v. Italy, judgment of05.01.2000, § 110; Sovtransavto Holding v. Ukraine, judgment of 25.07.2002, § 97-98, Broniowski v. Poland, judgment of 22.06.2004, § 151.
Note107 Case "Relating to certain aspects of the laws on the use of languages in education in Belgium" v. Belgium.
Note108X v. The United Kingdom, judgment of 02.05.1978.
109D.H and others v. The Czech Republic, judgment of 13.11.2007; Oršuš and others v. Croatia, judgment of 17.07.2008.
Note110Gitonas and Others v. Greece, judgment of 01.07.1997; Santoro V. Italy, judgment of 01.07.2004.
Note111Mathieu-Mohin and Clerfayt v. Belgium, judgment of 02.03.1987; Yumak and Sadak v. Turkey, judgment of 30.01. 2007, where the Court held that that Turkey had not overstepped its wide margin of appreciation with regard to Article 3 of Protocol No. 1, notwithstanding the high level of the threshold complained of.
Note112Krasnov and Skuratov v. Russia, judgment of 19.07. 2007.
Note113Sarukhanyan v. Armenia, judgment of 27.05.2008.
Note114Hirst v. The United Kingdom (No.2), judgment of 30.03.2004.
Note115 Campagnano v. Italy, judgment of 23.03.2006, concerning restriction on the right to stand for elections following a bankruptcy order.
Note116 C. Morrison – The Margin of Appreciation Doctrine Standards in the Jurisprudence of the European Court of Human Rights, no. 4, Human Rights Quarterly, 1982, p. 47.
Note117 Ignacio de la Rasilla del Mortal – The Increasingly Marginal Appreciation of the Margin of Appreciation Doctrine, German Law Journal, vol. 7, no. 6/ 1 June 2006.
Note118Pretty v. The United Kingdom, judgment of 29.07.2002, § 41.
Note119Chahal v. The United Kingdom, judgment of 15 November 1996, § 81; Ahmed v. Austria, judgment of 17.12.1996, § 38-41.
Note120 St. Greer – The European Convention on Human Rights. Achievements, Problems and Prospects, Cambridge, Studies in European Law and Policy, 2006, p. 234.