Margin of appreciation

Last updated

The margin of appreciation (or margin of state discretion) is a legal doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights to judge whether a state party to the European Convention on Human Rights should be sanctioned for limiting the enjoyment of rights. The doctrine allows the court to reconcile practical differences in implementing the articles of the convention. Such differences create a limited right for contracting parties "to derogate from the obligations laid down in the Convention". [1] The doctrine also reinforces the role of the European Convention as a supervisory framework for human rights. In applying that discretion, the court's judges must take into account differences between domestic laws of the contracting parties as they relate to substance and procedure. [2] The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of EU law. The purposes of the margin of appreciation are to balance individual rights with national interests and to resolve any potential conflicts. It has been suggested that the European Court should generally refer to the State's decision, as it is an international court, instead of a bill of rights. [3]

Contents

Definition and origins

The phrase "margin of appreciation" is a literal translation of the French marge d'appréciation. The latter phrase refers to a notion of administrative law that was developed by the Conseil d'État, but equivalent concepts have also emerged in every other civil jurisdiction.[ citation needed ] At the level of the European Convention on Human Rights, a margin of appreciation refers to some "latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies". [4] That is an intermediary norm in the jurisprudence of the European Court of Human Rights. It allows for some compromise between the aspirations of the convention and the circumstances faced by a contracting party. The doctrine of administrative discretion first gained national levels of prominence, most notably under the German Bundesverwaltungsgericht (Supreme Administrative Court) before it was translated into a doctrine of supervisory discretion for a regional context.

The concept of a margin of appreciation at the European level emerged through questions surrounding martial law. It was introduced to European Convention jurisprudence in 1956, which occurred through an opinion of the European Commission of Human Rights in Greece v. United Kingdom to permit the United Kingdom, under Article 15, to derogate from its obligations during a time of public emergency in British Cyprus. [5] Subsequently, the hearing for Lawless v Ireland (that is, the first formally decided case of the Court) included an oral argument from the Commission President Sir Humphrey Waldock: [6]

"...a Government's discharge of...responsibilities [in maintaining law and order] is essentially a delicate problem of appreciating complex factors and of balancing conflicting considerations of the public interest; and that, once the...Court is satisfied that the Government's appreciation is at least on the margin of powers..., then the interest which the public itself has in effective Government and in the maintenance of order justifies and requires a decision in favour of the legality of the Government's appreciation."

Later, the "Belgian Linguistic Case (No. 2)" of 1968 introduced a margin of appreciation to circumstances that fell outside emergency situations that were identified by Article 15 of the European Convention. That case proved to be critical in establishing a wide scope for the emerging doctrine of discretion. It identified two key elements for establishing a margin of appreciation: a focused consensus standard among 'Convention signatory states' and a proportionality principle in the jurisprudence of the European Convention. [7] The latter element consisted of two weighting factors, which are necessary to establish the extent of a particular margin. The factors are the 'nature of the right' in question and 'the aim pursued by the contested measure'. [8] With an expansive doctrine in view, the European Court also sought to constrain itself by stating: [9]

'...the Court cannot disregard those legal and factual features which characterize the life of the society in the State which...has to answer for the measure in dispute. In so doing, it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established for the Convention'.

The margin of appreciation doctrine received considerable development in 1976, with the Court decision of Handyside v United Kingdom , which concerned the publication of a Danish textbook for primary school children in which sexual behaviour was discussed using explicit terms. It was successfully published in several signatory states but was met with controversy in the United Kingdom. Handyside, an English publisher, was convicted for violating domestic laws on obscene publications. The case that was brought before the European Court challenged whether the United Kingdom could infringe freedom of expression under Article 10 on the ground of protecting moral norms. The fact that the "Little Red Schoolbook" had been received in other European countries formed a basis for that challenge. However, the Court permitted the imposed limitation on freedom of expression and found no violation of the convention. It held: [10]

'...it is not possible to find in the domestic law of the Contracting States a uniform conception of morals. The view taken by their respective laws... varies from time to time and from place to place.... 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'.

With that judgment, the European Court reinforced its distinction between the supervisory jurisdiction of the Convention framework and domestic forms of discretion. However, it also affirmed: [11]

'The Court... is empowered to give a final ruling on whether a "restriction" or "penalty" is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision'.

In the case of Z v. Finland,[ citation needed ] while accepting that individual interests could sometimes be outweighed by the public interest in the investigation and prosecution of crime, the court emphasised the fundamental importance of protecting the confidentiality of medical data for the sake of personal privacy and to preserve confidence in the medical profession and the health services. It found that measures including the disclosure of the applicant's medical records without her consent in the course of criminal proceedings against her husband amounted to a violation of Article 8.

Scope and application

The European Court decision in Handyside v United Kingdom framed the margin of appreciation doctrine in terms of a systemic tension in the European Convention framework. It is therefore easy to distort the concept in a negative sense 'to circumvent the express requirements of the Convention'. [12] However, the official position of the Court is that a margin of appreciation must be derived from 'a just balance between the protection of the general interest of the community and the respect due to fundamental human rights while attaching particular importance to the latter.' [13] That precedent illustrates some continuity between the original function of a margin of appreciation, as a justified derogation simpliciter, and its present purpose of delimiting rights and freedoms for individuals in relation to state parties. However, a clear distinction has also been made between this latter substantive purpose, which evolved over time, as well as the structural aim of the doctrine. [14] The structural purpose for a margin of appreciation was to construct 'a geographically and cultural plural notion of implementation'. [15] As a result, the doctrine has continued to subsist in an unstructured set of elements. That is possible because the foundation concept of a margin is essentially abstract in nature and less connected to the core purposes of the convention, especially when it is compared with other interpretive principles like legality or the effective protection of rights. [16]

Since justification for any derogation from the European Convention ultimately rests on the concept of democratic necessity in a society, margins of appreciation are situation-oriented, and the case law on the subject frequently lacks consistency. [17] The expanded margin of appreciation doctrine has been used to interpret European Convention guarantees regarding due process (Articles 5 and 6) and personal freedoms (Articles 8-11). That infused the doctrine with a sense of ubiquity and has led to its invocation in major legal developments, including challenges surrounding discrimination as they relate to human rights. [18] However, the doctrine has also been invoked in such varied questions as the enjoyment of possessions, [19] the use of religious symbols [20] and the implementation of environmental policies and regulations. [21] The margin of appreciation in each of the categories of cases has differed according to the kind of right in question. For example, if private individuals are more directly involved, less discretion is typically permitted to the discretion of state parties. [22] Naturally, that criterion comes under just one of the three criteria: the nature of the right, the aims pursued and the presence or absence of a European consensus, [23] which are used to determine the scope of any given margin. As the European Court decided in Dickson v United Kingdom: [24]

'Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. This is particularly so where the case raises complex issues and choices of social strategy.... 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 rights.'

The margin of appreciation doctrine has gained sufficient prominence under an emerging principle of subsidiarity to merit its impending incorporation into the Preamble of the European Convention. [25] That formal acknowledgment indicates awareness on the part of the Council of Europe that the evolution of the Convention must include jurisprudence that justifies the application of the doctrine in so many different issues. The margin of appreciation doctrine may also expand further throughout international law because its underlying concept of a derogation being "necessary in a democratic society", as is provided for in the European Convention, [26] also resonates with other international human rights regimes. [27] Although many regimes remain formally ambivalent or even negative towards margins of appreciation, the growing influence of Convention law on international norms, in turn, makes the doctrine more attractive to the global community. [28]

See also

Related Research Articles

<span class="mw-page-title-main">European Convention on Human Rights</span> International treaty to protect human rights and fundamental freedoms in Europe

The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.

<span class="mw-page-title-main">European Court of Human Rights</span> Supranational court established by the Council of Europe

The European Court of Human Rights, also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The European Convention on Human Rights is also referred to by the initials "ECHR". The court is based in Strasbourg, France.

Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution. The Oxford English Dictionary defines subsidiarity as "the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level". The concept is applicable in the fields of government, political science, neuropsychology, cybernetics, management and in military command. The OED adds that the term "subsidiarity" in English follows the early German usage of "Subsidiarität". More distantly, it is derived from the Latin verb subsidio, and the related noun subsidium.

<i>Campbell v MGN Ltd</i> 2004 House of Lords decision on privacy in English law

Campbell v Mirror Group Newspapers Ltd[2004] UKHL 22 was a House of Lords decision regarding human rights and privacy in English law.

Redfearn v Serco Ltd [2006] EWCA Civ 659 and Redfearn v United Kingdom [2012] ECHR 1878 is a UK labour law and European Court of Human Rights case. It held that UK law was deficient in not allowing a potential claim based on discrimination for one's political belief. Before the case was decided, the Equality Act 2010 provided a remedy to protect political beliefs, though it had not come into effect when this case was brought forth.

Civil liberties in the United Kingdom are part of UK constitutional law and have a long and formative history. This is usually considered to have begun with Magna Carta of 1215, a landmark document in British constitutional history. Development of civil liberties advanced in common law and statute law in the 17th and 18th centuries, notably with the Bill of Rights 1689. During the 19th century, working-class people struggled to win the right to vote and join trade unions. Parliament responded with new legislation beginning with the Reform Act 1832. Attitudes towards suffrage and liberties progressed further in the aftermath of the first and second world wars. Since then, the United Kingdom's relationship to civil liberties has been mediated through its membership of the European Convention on Human Rights. The United Kingdom, through Sir David Maxwell-Fyfe, led the drafting of the Convention, which expresses a traditional civil libertarian theory. It became directly applicable in UK law with the enactment of the Human Rights Act 1998.

Article 10 of the European Convention on Human Rights provides the right to Freedom of Expression and Information. A fundamental aspect of this right is the freedom to hold opinions and receive and impart information and ideas, even if the receiver of such information does not share the same opinions or views as the provider.

In the European Convention on Human Rights, Article 2 protects the right to life. The article contains a limited exception for the cases of lawful executions and sets out strictly controlled circumstances in which the deprivation of life may be justified. The exemption for the case of lawful executions has been subsequently further restricted by Protocols 6 and 13, for those parties who are also parties to those protocols.

S and Marper v United Kingdom [2008] ECHR 1581 is a case decided by the European Court of Human Rights which held that holding DNA samples of individuals arrested but who are later acquitted or have the charges against them dropped is a violation of the right to privacy under the European Convention on Human Rights.

Mosley v United Kingdom [2011] 53 E.H.R.R. 30 was a 2011 decision in the European Court of Human Rights regarding the right to privacy under Article 8 of the European Convention on Human Rights. An application to the court was made by Max Mosley, the former president of the FIA, after his successful breach of confidence legal case against the News of the World. In that case, the court unanimously rejected the proposition that Article 8 required member states of the Council of Europe to legislate to prevent newspapers printing stories regarding individual private lives without first warning the individuals concerned. It instead held that it fell within each state's margin of appreciation to determine whether to legislate on that matter.

Handyside v United Kingdom (5493/72) was a case decided by the European Court of Human Rights in 1976. Its conclusion contains the famous phrase that:

Freedom of expression ... is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.

<i>Demir and Baykara v. Turkey</i> 2008 European Court of Human Rights case

Demir and Baykara v Turkey [2008] ECHR 1345 is a landmark European Court of Human Rights case concerning Article 11 ECHR and the right to engage in collective bargaining. It affirmed the fundamental right of workers to engage in collective bargaining and take collective action to achieve that end.

Government or state interest is a concept in law that allows the state to regulate a given matter. The concept may apply differently in different countries, and the limitations of what should and should not be of government interest vary, and have varied over time.

Article 12 of the European Convention on Human Rights (ECHR) provides for two constituent rights: the right to marry and the right to found a family. With an explicit reference to ‘national laws governing the exercise of this right’, Article 12 raises issues as to the doctrine of the margin of appreciation, and the related principle of subsidiarity most prominent in European Union Law. It has most prominently been utilised, often alongside Article 8 of the Convention, to challenge the denial of same sex marriage in the domestic law of a Contracting state.

Article 18 of the European Convention on Human Rights (ECHR) states:

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

Article 15 of the European Convention on Human Rights allows contracting states to derogate from certain rights guaranteed by the Convention in a time of "war or other public emergency threatening the life of the nation".

The right to family life is the right of all individuals to have their established family life respected, and to have and maintain family relationships. This right is recognised in a variety of international human rights instruments, including Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights, and Article 8 of the European Convention on Human Rights.

In September 1967, Denmark, Norway, Sweden and the Netherlands brought the Greek case to the European Commission of Human Rights, alleging violations of the European Convention of Human Rights (ECHR) by the Greek junta, which had taken power earlier that year. In 1969, the Commission found serious violations, including torture; the junta reacted by withdrawing from the Council of Europe. The case received significant press coverage and was "one of the most famous cases in the Convention's history", according to legal scholar Ed Bates.

"Necessary in a democratic society" is a test found in Articles 8–11 of the European Convention on Human Rights, which provides that the state may impose restrictions of these rights only if such restrictions are "necessary in a democratic society" and proportional to the legitimate aims enumerated in each article. According to the Council of Europe's handbook on the subject, the phrase is "arguably one of the most important clauses in the entire Convention". Indeed, the Court has itself written that "the concept of a democratic society ... prevails throughout the Convention". The purpose of making such claims justiciable is to ensure that the restriction is actually necessary, rather than enacted for political expediency, which is not allowed. Articles 8–11 of the convention are those that protect right to family life, freedom of religion, freedom of speech, and freedom of association respectively. Along with the other tests which are applied to these articles, the restrictions on Articles 8–11 have been described as "vast limitations", in contrast to American law which recognizes nearly unlimited right to freedom of speech under the First Amendment.

The living instrument doctrine is a method of judicial interpretation developed and used by the European Court of Human Rights to interpret the European Convention on Human Rights in light of present-day conditions. The doctrine was first articulated in Tyrer v. United Kingdom (1978), and has led both to different rulings on certain issues as well as evaluating the human rights implications of new technologies.

References

  1. ↑ Application No. 176/56 (Greece v United Kingdom, "Cyprus"), 2 Yearbook of the European Convention 1958-1959, 174-199 at 176.
  2. ↑ The Sunday Times v United Kingdom, no. 6538/74, § 61, ECHR 1979 A30.
  3. ↑ Roffee, J. A. (2014). "No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights". Human Rights Law Review. 14 (3): 541–572. doi:10.1093/hrlr/ngu023.
  4. ↑ H.C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijhoff, Dordrecht, 1996) at 13.
  5. ↑ P. van Dijk, et al. (ed.s) Theory and Practice of the European Convention on Human Rights (Fourth Edition) (Intersentia, Antwerpen, 2006) at 1055-1056.
  6. ↑ Lawless v Ireland, no. 332/57, ECHR 1961 A3 (N.B. verbatim record of the hearing on 8 April). Cited in J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Koninklijke Brill NV, Leiden, 2009) at 244.
  7. ↑ Yourow (1996), above n 6, at 30-31.
  8. ↑ P. Alston and R. Goodman, International Human Rights: Text and Materials (the Successor to International Human Rights in Context) (Oxford University Press, Oxford, 2013) at 946.
  9. ↑ Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium ("Belgian Linguistic Case") (No. 2), no. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, §10, ECHR 1968 A6.
  10. ↑ Handyside v United Kingdom, no. 5493/72, §48, ECHR 1976 A24.
  11. ↑ Ibid., §49.
  12. ↑ C.S. Feingold, "The Doctrine of Margin of Appreciation and the European Convention on Human Rights" (1977-1978) 53 Notre Dame Law 90 at 105.
  13. ↑ "Belgian Linguistic Case" (No. 2), above n 6, §5.
  14. ↑ G. Letsas, "Two Concepts of the Margin of Appreciation", Oxford Journal of Legal Studies, 26 (2006) 4, 705-732.
  15. ↑ F. Mégret, 'Nature of Obligations'; in D. Moeckli et al., International Human Rights Law (Second Edition) (Oxford University Press, Oxford, 2014) at 104.
  16. ↑ S. Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, Cambridge, 2006) at 194.
  17. ↑ Y. Arai, "The System of Restrictions"; in P. van Dijk, et al., above n 4, at 340.
  18. ↑ See, for example, Dudgeon v United Kingdom , no. 7525/76, ECHR 1981 A45; ADT v United Kingdom, no. 35765/97, ECHR 2000-IX; and, Goodwin v United Kingdom, no. 28957/95, ECHR 2002-VI.
  19. ↑ See, for example, Stummer v Austria, no. 37452/02, ECHR 2011.
  20. ↑ See, for example, Lautsi v Italy, no. 30814/06, ECHR 2011.
  21. ↑ See, for example, Hardy & Maile v United Kingdom, no. 31965/07, ECHR 2012.
  22. ↑ R.K.M. Smith, Textbook on International Human Rights—Sixth Edition (Oxford University Press, Oxford, 2014) at 182.
  23. ↑ Francesco Perrone, La Divisione ricerca della Corte Edu: impatto sulle decisioni della Corte e profili di criticità, Questione giustizia, speciale n. 1/2019 (La Corte di Strasburgo a cura di Francesco Buffa e Maria Giuliana Civinini).
  24. ↑ Dickson v United Kingdom, no. 44362/04, §78, ECHR 2007-V.
  25. ↑ Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (yet to be signed by all High Contracting Parties).
  26. ↑ See Articles 8(2), 9(2), 10(2) and 11(2). The treatment of those provisions has relevance in an international context to instruments such as the International Covenant on Civil and Political Rights—B.B. Lockwood, Jr., et al., "Working Paper for the Committee of Experts on Limitation Provisions", Human Rights Quarterly (1985) 7 Hum Rts Q 35 at 50
  27. ↑ See, for example, the Human Rights Committee view in Hertzberg et al. v Finland to grant 'a certain margin of discretion' to 'responsible national authorities', under the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) (para. 2.5).
  28. ↑ Y. Shany, "Toward a General Margin of Appreciation Doctrine in International Law?", The European Journal of International Law (2006) 16 EJIL 5.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.