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European Court of Human Rights; the margin of appreciation doctrine
‘Some would argue that the margin of appreciation doctrine developed by the European Court of Human Rights reflects an unjustifiably deferential stance by that Court to State Parties. However, the reality is that the Court of Human Rights has adopted a consistently activist approach when interpreting the European Convention on Human Rights, extending the scope of rights far beyond that provided for in the text.’
Critically analyse the above statement, with reference to appropriate case law.
The statement concerns the axiomatic tension between judicial interpretation which promotes the purported subsidiarity nature of the Court by ensuring Contracting States have remained within their limits, (margin of appreciation fits into this subsidiary role)  against the idea of judicial legislation (judicial activism) which runs contrary to the notion of the court being a non-intrusive supervisory mechanism.
Therefore there is tension between the principles of universality and subsidiarity – the idea of insisting on the same European protection for everyone by developing a common standard but not to encroach on the sovereignty of the Contracting States who are the primary guarantors of the Convention Rights. Essentially, the two principles should work hand-in-hand. Lord Lester noted that universality could be recognised if there was effective protection of rights by national courts and national legislatures and administrators rather than by relying on a very weak form of European judicial supervision. Balancing the two principles, however, is no easy feat. Some argue that the doctrine helps prevent intruding on State sovereignty by allowing them a degree of latitude in fulfilling their Convention obligations.
The initial part of this document will discuss justifications for the doctrine and whether it really is unjustifiable. It will discuss what factors determine the scope of the doctrine with reference to case law. The latter part will discuss whether the European Court on Human Rights (ECtHR) has, in actual fact, been ‘consistently’ activist.
To call the margin of appreciation doctrine ‘unjustifiably’ deferential would appear to be accurate as it is erratic in its application. The problem with the doctrine is that it ‘illustrates a disappointing lack of clarity’ by injecting a strongly subjective element into the interpretation of the Convention. This effectively weakens the Court’s authoritative position due to the absence of clear objective criteria needed to review a State’s decision.
This does not mean, however, that the doctrine has no merit; it allows Contracting States some flexibility for how they ensure rights. However, too much deference means that the Contracting States become the primary concern although it is the protection of the individuals that is at the core of the European Convention.
Firstly, the doctrine allows a degree of latitude in balancing individual rights and national interests as well as in resolving conflicts that emerge as a result of diverse moral convictions. Therefore, it can be argued that it is a necessary and realistic tool for the court. When there are sensitive issues, it can facilitate dialogue with domestic systems in terms of each system’s unique values and needs. In addition, as the defenders of the doctrine note, the discretion is not unlimited and that European supervision goes hand-in-hand with the Contracting States. It is important to note that in the Belgian linguistics case, the Court stated that if they assumed the role of the Contracting State they would lose sight of their subsidiarity role within the Convention. Thus, Contracting States should be free to choose the proper measures in matters governed by the Convention.
The doctrine is best articulated in Handyside but its roots lie in the French Conseil d’Etat jurisprudence and in the administrative law of civil law jurisdictions. The doctrine first came about in relation to government derogations under Article 15. In Greece v United Kingdom they held that Contracting States were entitled to a ‘certain measure of discretion in assessing the extent strictly required by the exigencies of the situation’. The Commission first used the term in Lawless v Ireland.
In Ireland v United Kingdom they justified the position of wide discretion. It was decided that because of their ‘direct and continuous contact with the pressing needs of the moment, the national authorities were, in principle, in a better position than the international judge to make a decision.’ Branningan and McBride v United Kingdom further cemented this deferential attitude. It was decided that there needed to be a wide margin when deciding the presence of an emergency situation and the necessary measures to avert that situation. It is questionable whether such deference is justified, especially in the context of an emergency where individual rights are most vulnerable to abuse. To state simply that a decision was within the margin of appreciation of the national authorities provides no real reason for the decision; it is merely expressing a conclusion not to intervene. This does question the real reasons behind the decision that the Court clearly failed to articulate. By this standard, the Court is unjustifiably abdicating its role to ensure the Convention rights.
The doctrine clearly is unjustifiably deferential with regards to Article 15. However the doctrine is ‘well established in the jurisprudence of the convention’. The key flaw of the doctrine is not in its existence but its vague application and the factors considered when offering a wide or narrow margin to Contracting States.
Case law demonstrates that the Strasbourg organs consider certain factors that establish the scope of the margin afforded to states. With particular reference to cases that invoke the right to freedom of expression under Article 10 it can be seen that there is a difference in protection with cases relating to political expression compared to expression related to public morals.
Paul Mahoney stated that ‘regrettably the discretion afforded to national authorities is determined on the wholly flexible and woolly principle’ that ‘the scope of the margin of appreciation will vary according to the circumstances, the subject matter and the existence of common ground among Contracting States’. The defenders of the doctrine hold that the rationale behind this flexibility is based on the assumption that Contracting States are in a better position to assess a case due to their local knowledge, especially when there is no European consensus.
Freedom of expression has often been cited as an essential component of a truly democratic society; a first generation right that must be narrowly interpreted. The need for any restrictions must be convincingly established. In Lingens it was held that the margin would be much narrower as the limits of acceptable criticism are accordingly wider for politicians. This was reiterated in Castells where it was noted that political debate constituted the heart of a democratic society and that ‘limits of permissible criticism are wider with regards to the government by virtue of its dominant position than in relation to a private citizen.’ Contracting States enjoy a wide margin in relation to hate speech. In Jersild a journalist had interviewed a group of youths who had made abusive remarks about minorities; the penalties imposed on the media were considered disproportionate as the article contributed to current public issues. There does appear to be a consistent pattern in granting the press strong protection for government criticism and public debate.
In contrast, the Contracting States are afforded a wide margin in assessing the need to interfere with the exercise of freedom of speech for the protection of morals. This is most likely due to the elusive nature of the subject and the fact that there is little consensus compared to political speech or even maintaining the impartiality of the judiciary. Most notably, the Handyside case stated the importance of ‘pluralism, tolerance and broadmindedness as prerequisites for democratic society’ but as the children’s book in question contained scientific pages on sex, it was not afforded protection (notwithstanding that it had been published elsewhere). The court held there was no consensus on the issue as the ‘requirements of morals varies from time to time and from place to place’; therefore the Contracting State was allowed a wide margin.
The Commission recognised the importance of artistic expression in Muller. It appreciated the fact that such expression can also legitimately contribute to public issues. The Commission concluded that it would be disproportionate to confiscate Muller’s paintings and Lord Lester concurred. However, even though the exhibition was free of charge, with no prescribed age limit and no notice as to the content of the exhibition, the Court found no violation of Article 10. Due to the morally sensitive content, there was a wide margin available to the State.
This weak protection was further expressed in the Otto Preminger Institut. Again, the Commission did not accept the argument that a complete ban was warranted because certain people might be offended. The Court disregarded the measures taken and stated that ‘its merit as a work of art or contribution to public debate in Austrian society do not outweigh those features which made it essentially offensive to the general public within their jurisdiction.’ A similar approach was evident in Wingrove. As the Court was satisfied that there was no violation of Article 10 even though ‘certain Christians who would have heard of its existence might be shocked and offended by the thought of such a film being available.’
From the abovementioned cases it can be seen that there are no hard and fast rules governing the doctrine. Because political speech constitutes one of the fundamental elements of a democratic society, there should be a narrow margin, yet artists who should supposedly be able to ‘shock and offend’ find their work most likely to be confiscated. The lack of a European consensus does not provide a legitimate reason for such a distinction.
This discussion will now look at whether the Court has been ‘consistently activist’. Activism is not the Court’s main role; its primary role lies in interpretation and application. The Convention is however worded in broad terms and this allows the Court to ‘seek the interpretation that is most appropriate in order to realise the aim and achieve the objects of the treaty.’ Effectively, this teleological approach runs parallel to that of Article 31(1) of the Vienna Convention.
In Tyrer v United Kingdom, the Court demonstrated that the Convention was a ‘living instrument.’ The majority ruled that Article 3 should be interpreted as embodying the current concept of inhuman and degrading punishment rather than the 1950’s concept of what would have constituted such treatment under Article 3. This approach was approved in Marckx v Belgium. The Court held ‘it was no longer correct to make such a distinction between illegitimate and legitimate children’.
Article 8 under the Convention is quite broad in that it protects not only private and family life but also home and correspondence. With the notion of the ‘living instrument’ and the teleological approach to the Convention, the ambit of Article 8 has stretched into areas that would not have been considered by the drafters. The most notable cases involve allowing transsexuals to have their legal identity changed (but this was very gradual, as previous cases illustrate). Environmental issues are also a possible consideration within the domain of the Article as Hatton suggested (yet again, in this case the competing interests of the economic well-being of the country outweighed that of the minority who suffered sleep deprivation). Even the law in Ireland has been reconsidered, allowing for the decriminalisation of homosexuality. These examples all illustrates that the Convention has moved into directions unforeseen. This allows the Convention to stay in line with current views but it is possible that such an approach does not provide sufficient legal clarity. The Court has frequently reiterated that there must be serious justification for interference in matters concerning private individuals. This correlates to the State’s negative obligation but case law in recent years (such as X and Y v Netherlands and Osman) illustrates the State’s positive obligation to take necessary measures to protect the individuals from reasonably foreseeable harm.
The activism illustrated by the Court is even more pronounced in extradition cases. In Soering the Court held that if there was a real risk of inhuman and degrading treatment upon extradition, this would fall foul of Article 3, regardless of the Article 1 ‘territorial’ limit. The Court held that this would not ‘absolve the Contracting State from responsibility for all foreseeable consequences of the extradition suffered outside its jurisdiction.’ The positive obligation on the State is evidently quite strong; however the absolute nature of Article 3 cannot be ignored. It was ruled that the activities of the applicant in question, ‘however undesirable or dangerous, cannot be a material consideration in an application for expulsion.’ The Soering principle has effectively been extended in Othman (Abu Qatada) v The United Kingdom.  If there is a real risk that an applicant will face trial at which evidence adduced against him has been obtained through torture, this would constitute a ‘flagrant denial’  of justice in respect of his Article 6 right as such evidence would cause irreparable damage to the reputation of the trial process.
In light of such activism, the statement does fail to take into account certain decisions made by the Court that clearly illustrate signs of judicial restraint. As noted above, the Court illustrates much restraint towards derogations clauses and expression related to public morals due to the fact that, supposedly, the States are always more able to offer a fair judgement.
Although the Courts are usually quite activist in their approach towards Article 8, they failed to find a violation in both Useimov v The Netherlands and in A B and C v Ireland. (In the latter case there was no regard for the European-wide consensus on abortion, illustrating a discrepancy in the usually consistent ‘consensus’ standard). Article 9 is afforded weaker protection in comparison to other fundamental rights. Although there is an absolute right to freedom of thought, conscience and belief, the same is not true of any manifestation of that belief as this can be legitimately restricted by the State.
Leyla Sahin v Turkey is a clear illustration of the Court’s restraint. This case concerned the banning of headscarves and beards in Turkish universities. The Court’s reasoning for not finding a violation of Article 9 was because the State’s aims were legitimate: to ‘protect the rights and freedoms of others, to preserve public order and secure civil peace and true religious pluralism, thereby preventing the secular state from suffering from Islamic radicalism’. The Court noted as there was no real consensus on the significance of religion in society and since the significance varies greatly in each State, the national authorities were better suited to deal with such a situation.
The dissenting judgment of Judge Tulkens correctly pointed out that although the State was justified in offering protection against radicalism, the fact was that Leyla Sahin was only a university student studying and was not exhibiting views of Islamic extremism. Despite Judge Tulken’s dissenting judgment, Dogru v France followed Sahin and afforded a wide margin of appreciation to the State.
From the abovementioned cases it is clear to see that in sensitive and complex issues, especially matters relating to religion and morals, the Court would prefer to give the State a wide margin of appreciation.
The tension in judicial activism and judicial restraint is an inevitable part of ensuring the fair balance of rights (universality) and respecting State sovereignty (subsidiarity). The margin of appreciation doctrine, albeit not a perfect doctrine, sends a warning light to the Contracting States about the emergence of new social trends. Contracting States would need to consider changing their policies in due course. However, the doctrine needs more lucid criteria so that the Court can stay within its legitimate role and fulfil its proper subsidiarity duty.
 Handyside v The United Kingdom (1979-1980) 1 E.H.R.R. 737 at para. 48
 Schokkenbroek. J., (1998) ‘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
Shany. Y., (2006) ‘Towards a General Margin of Appreciation Doctrine in International law?’ 16 European Journal of International Law 907 at 927
 Lord Lester of Herne Hill, Universality versus Subsidiarity: A Reply, 1998 EUROPEAN HUMAN RIGHTS LAW REVIEW 73, at 75
 European Convention on Human Rights Article 1
 Eyal Benvenisti, (1999) Margin of Appreciation, Consensus, and Universal Standards, 31 International Law and Politics 843
 Van Dijk and Van Hoof, (1990) Theory and Practice of the European Convention of Human Rights. 2nd Edn. p. 604
 R. St. Macdonald, The Margin of Appreciation, in the European System for the Protection of Human Rights. 83 9. (R. St. J Macdonald, F. Matscher, H. Petzold eds., 1993) at 85
 Lavender, N., (1997) The Problem of the Margin of Appreciation. EUROPEAN HUMAN RIGHTS LAW REVIEW 380 at 380-81
 Lord Lester of Herne Hill, Universality versus Subsidiarity: A Reply, 1998 EUROPEAN HUMAN RIGHTS LAW REVIEW 73, at 75-76
 Eyal Benvenisti. (1999)Margin of Appreciation, Consensus, and Universal Standards, 31 International Law and Politics 843
 Oren Gross & Fionnuala Ni Aolain. From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights. 23. Human Rights Quarterly 625, at 627 (2001)
 Handyside v The United Kingdom (1979-1980) 1 E.H.R.R. 737 at para. 49
 ‘Belgian Linguistics’ case 1 E.H.R.R. 252
 Handyside v The United Kingdom (1979-1980) 1 E.H.R.R. 737 at paras. 48-49
 Yutaka Arai-Takahashi. The margin of Appreciation Doctrine and the Principle of Proportionality in the jurisprudence of the ECHR. 2 at 2-3 (2002).
 The Doctrine of Margin of Appreciation and the European Convention on Human Rights, 53 Notre Dame Law. 90 at 91 (1977)
 Cyprus (Greece v United Kingdom) App. No 176/56, 2 Yearbook European Commission on Human Rights 174 (1959)
 ibid at 176
Ireland v United Kingdom No 332/57, 2 Yearbook European Commission on Human Rights 318 (1960) at para. 28
 Ireland v United Kingdom (1978) 2 E.H.R.R. 25
 ibid at para. 207
 Brannigan & McBride v United Kingdom (1993) 17 E.H.R.R. 539
 Oren Gross & Fionnuala Ni Aolain. (2001) From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights. 23 Human Rights Quarterly 625, at 633
 Brannigan & McBride v United Kingdom 17 E.H.R.R. 539
 Oren Gross & Fionnuala Ni Aolain. (2001) From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights. 23 Human Rights Quarterly 625, at 639
 R. St. Macdonald. The Margin of Appreciation, in the European System for the Protection of Human Rights. 83 9 (R. St. J Macdonald, F. Matscher, H. Petzold eds., 1993) at 85
 European Convention on Human Rights Article 19
 Oren Gross & Fionnuala Ni Aolain. (2001) From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights. 23 Human Rights Quarterly 625, at 648
 Lavender. N., (1997) The Problem of the Margin of Appreciation EUROPEAN HUMAN RIGHTS LAW REVIEW 380
 Shany. Y., (2006) Towards and General Margin of Appreciation Doctrine in International law? 16 European Journal of International Law 907 at 927
 European Convention on Human Rights (ECHR)
 Mahoney. P., (1997) Judicial Activism and Judicial Self Restraint: Two Sides of the Same Coin. 11 HUMAN RIGHTS LAW JOURNAL 57
 ibid at page 83
 Rasmussen v Denmark (1984) 7 E.H.R.R. 371 at para. 40
 Letsas. G., (2006) Two Concepts of the Margin of Appreciation. 26 OXFORD JOURNAL OF LEGAL STUDIES 705
 Observer and Guardian v United Kingdom (1991) 14 E.H.R.R. 153 para 59
 Lingens v Austria (1981) 8 E.H.R.R. 407
 Castells v Spain 14 E.H.R.R. 445
 ibid at para. 46
 Jersild v Denmark (1994) 19 E.H.R.R. 1
 Post. R., Religion and Freedom of Speech: Portraits of Muhammed, 14 CASTELLATIONS 72 (2007)
 Soren C. Prebensen, (1998) The Margin of Appreciation and Articles 9, 10 and 11 of the Convention’ 19 HUMAN RIGHTS LAW JOURNAL 17
 Sunday Times v United Kingdom 14 E.H.R.R. 229 at para 51
 Handyside v The United Kingdom (1979-1980) 1 E.H.R.R. 737
 ibid at para. 48
 Muller and Others v Switzerland (1998) 13 E.H.R.R. 212 at para. 95
 Ignacio de la Rasilla del Moral, (2006) The Increasingly, Marginal Appreciation of the Margin-of-Appreciation Doctrine,’ 7 GERMAN LAW JOURNAL 611 at 617
 Otto-Preminger-Institut v Austria (1995) 19 E.H.R.R. 34
 ibid at para. 56
 Wingrove v United Kingdom (1997)24 E.H.R.R. 1 paras. 52- 57
 P. Van Dijk and G.J.H. (1998) ‘Van Hoof Theory and practice of the European Convention of Human Rights, 3rd edn. 84 at 87
 Handyside v The United Kingdom (1979-1980) 1 E.H.R.R. 737 at para. 49
 Soren C. Prebensen, (1998) ‘The Margin of Appreciation and Articles 9, 10 and 11 of the Convention’ 19 HUMAN RIGHTS LAW JOURNAL 13, at 17
 European Convention on Human Rights Article 45
 Wemhoff v Germany (1968) 1 EHRR 55. 17
 Tyrer v United Kingdom (1978) 2 E.H.R.R. 1 at 31
 Marckx v Belgium (1979) 2 E.H.R.R. 330
 Letsas. G., (2006) ‘Two Concepts of the Margin of Appreciation,’ 26 OXFORD JOURNAL OF LEGAL STUDIES 705 at 727-728
 European Convention on Human Rights Article 8(1)
 Christine Goodwin v UK (2002) 35 E.H.R.R. 18
 Rees v United Kingdom (1987) 9 E.H.R.R. 56, at para 37; Cossey v United Kingdom (1991) 13 E.H.R.R. 622, at 40
 Hatton v United Kingdom (2003) 37 E.H.R.R. 28
 ibid at para. 106-107
 Dudgeon v United Kingdom (1982) 4 E.H.R.R. 149
 Cossey v. United Kingdom (1990) 30 E.H.R.R. 622 at para. 3.6.3.
 X and Y v Netherlands (1986) E.H.R.R. 235
 Osman v United Kingdom (2000) E.H.R.R. 245
 Soering v UK (1989) 11 E.H.R.R. 439
 ibid at para. 91
 Soering v UK (1989) 11 E.H.R.R. 439 at para 86
 Gafgen v Germany (2009) 48 E.H.R.R. 253
 Chahal v United Kingdom (1996) 23 E.H.R.R. 413 at para. 80; Saadi v Italy (2009) 49 E.H.R.R. 30 at para. 140
 Othman (Abu Qatada) v The United Kingdom 8139/09  E.C.H.R. 56
 ibid at para. 267
 ibid at para. 264
 De Wilde, Ooms and Versyp v Belgium (1979-80) 1 E.H.R.R. 373 at para. 93
 Brannigan & McBride v United Kingdom (1993) 17 E.H.R.R. 539
 Handyside v The United Kingdom (1979-1980) 1 E.H.R.R. 737
 Ireland v United Kingdom (1978) 2 E.H.R.R. 25 at para. 207
 Useimov v The Netherlands  App. No. 61292/00
 A, B and C v Ireland  E.C.H.R. 2032
 Smith and Grady v United Kingdom (1999) 29 EHRR 493; Ahmad v United Kingdom (1982) 4 EHRR 126
 European Convention on Human Rights Article 9(1)
 European Convention on Human Rights Article 9(2)
 Leyla Sahin v Turkey (2005) 44 E.H.R.R. 99 at 84
 ibid at para. 110
 ibid at para. 109
 Dogru v France (2009) 49 E.H.R.R. 8
 Leyla Şahin v Turkey (2007) 44 E.H.R.R. 5
 Lautsi v Italy  ECtHR (Application No. 30814/06) at paras. 71-72
 Handyside v The United Kingdom (1979-1980) 1 E.H.R.R. 737