Master’s Thesis
University of Amsterdam, Amsterdam Law School
Summer 2012
Mr. Dr. J.H. Reestman
The Margin of Appreciation under fire
- The evolution of the legal concept in the
jurisprudence of the European Court of Human
Rights: has the margin of appreciation shrunk and
will it increase after the Brighton conference? -
Jan Paternotte, BSc
1 Jan Paternotte – The Margin of Appreciation under fire Inhoudsopgave
INTRODUCTION 4 1. THE MARGIN OF APPRECIATION IN ECTHR HISTORY 6 1.1. THE CONCEPT IN INTERNATIONAL LAW 1.2 THE MARGIN OF APPRECIATION IN THE EUROPEAN CONVENTION OF HUMAN RIGHTS 1.3. THE EMERGENCE OF MARGIN METHODOLOGY IN ECTHR JURISPRUDENCE 1.3.A REASONABLE DEDUCTION IN LAWLESS V. IRELAND 1.3.B MORE THAN JUST GOOD FAITH IN GREEK COLONELS 1.3.C NO INDEPENDENT ASSESSMENT IN IRELAND V. UNITED KINGDOM 1.3.D THE DEROGATION PARAMETERS IN A MODERN CASE: A. AND OTHERS V. UNITED KINGDOM 1.3.E LEGACY OF THE ARTICLE 15 CASES: THE FLEXIBLE MARGIN 1.4. THE MARGIN IN PERSONAL FREEDOMS CASES 1.4.A THE MARGIN AND EUROPEAN SUPERVISION: HAND IN HAND IN HANDYSIDE 1.4.B SAME ARTICLE, DIFFERENT MARGIN: SUNDAY TIMES V. UNITED KINGDOM 1.4.C WHEN MORALS DON’T MATTER: DUDGEON CASE 1.5. EMERGENCE OF THE MARGIN IN OTHER CASES 1.5.A NO MARGIN FOR MOTHERS: THE MARCKX AND RASMUSSEN CASES 1.5.B MODERN TIMES: ‘VERY WEIGHTY REASONS’ TO TREAT ONE GENDER MORE EQUAL THAN OTHERS 1.5.C THE OUT-­‐OF-­‐JAIL CASE LAW: DEPRIVATION OF LIBERTY, DUE PROCESS AND THE MARGIN OF APPRECIATION 1.5.D THE MARGINS TERRAE INCOGNITAE: 1. MORALS AND THE RIGHT TO LIFE 1.5.E THE MARGINS TERRAE INCOGNITAE: 2. TORTURE, INHUMAN AND DEGRADING TREATMENT 1.6. THE THREE MARGINS: DIFFERENT EMANATIONS OF THE SAME PHRASE 6 6 8 8 10 10 11 12 13 13 14 17 18 19 21 2. THE MODERN MARGIN: A COURT GONE WILD? 30 2.1 SWIMMING AGAINST THE TIDE: THE COURT’S PRODUCTION 2.2 THE MARGIN IN THE HAYSTACK: THE BATTLE BETWEEN QUANTITY AND CONSISTENCY 2.3 WHERE IN THE WORLD IS EUROPE? THE EVOLUTION OF THE EUROPEAN CONSENSUS 2.3.A FROM LEGAL ORDER TO (ALSO) SOCIAL ORDER 2.3.B FROM CONSENSUS IN DOMESTIC LAW TO ‘LEGISLATIVE TRENDS’ 2.3.C FROM A SELF-­‐EVIDENT CONSENSUS TO A TOUR D’EUROPE 2.3.D A (COMMON)WEALTH OF INSPIRATION 2.4 EQUAL BUT SEPARATE? THE ALLEGED RANDOMNESS OF RIGHTS HIERARCHY 2.5. IN SUM: A SHRINKING MARGIN? 30 31 33 33 34 35 36 37 39 3. THE ARGUMENT FOR A WIDER MARGIN 42 3.1. THE NATIONAL APPROACH: THE TORIES AND THE BILL OF RIGHTS 3.1.A GERMAN SHIELD? THE CONCEPT OF A DOMESTICALLY ENSHRINED MARGIN 3.1.B PRISONER’S SUFFRAGE AND THE RIGHT TO GET RID 3.2. FROM A DOMESTIC TO A EUROPEAN SOLUTION: THE SLIM MARGIN 3.2A CHANGE ON THE EUROPEAN LEVEL: THE BRIGHTON CONFERENCE 3.2B THE AFTERMATH OF BRIGHTON: HAS THE COURT RESPONDED? 3.3 CONCLUSION: HAS THE MARGIN OF APPRECIATION INCREASED AFTER BRIGHTON? 42 44 47 49 50 51 52 22 25 26 27 2 3 Jan Paternotte – The Margin of Appreciation under fire Introduction
The European Court of Human Rights (ECtHR or ‘The Court’) is recognized
as one of the most influential international Courts in human history. And
more than that, the Court is unique in allowing all 800 million citizens of the
member states of the Council of Europe (CoE) the possibility of lodging their
individual complaint against the state they believe has infringed the
European Convention of Human Rights (ECHR) with the Court, at least if
they have exhausted domestic legal remedies. However, as an international
court Strasbourg has had to define the limits of its supranational judicial
review. The Court did so not by gradually defining a bare minimum of
human rights protection, but by inventing the concept of a margin of
appreciation afforded to the member states of the CoE: some ‘elbow room’
within which member states could interpret the ECHR obligations.
In 1982 human rights scholar Thomas A. O’Donnell was one of the first to
evaluate the concept margin of appreciation in the case-law of the European
Court of Human Rights. He concluded that by 1982 the margin of
appreciation “[has become] an important and probably enduring concept in
the jurisprudence of the Court. The court […] is now likely to be little
concerned over its legitimacy in the eyes of the member states […]”.1
Little did O’Donnell know of what was to come when the United Kingdom
(UK) took the reigns of the Council of Europe in the year 2012. “The
European Court has become too active in meddling with the affairs of
national governments”, said British Prime Minister David Cameron.2 In the
eyes of Cameron, by 2012 the margin of appreciation had ‘shrunk’ to a point
he as a democratically elected leader no longer felt comfortable with, and he
wanted the Council of Europe to declare that the margin should be wider.3
Within the framework of the British chairmanship, Cameron organized a
high level conference in Brighton to push for significant reform of the Court.4
Structure of the thesis
In this thesis I will evaluate the evolution of the margin of appreciation in
ECtHR history, with the goal of in the end answering two questions:
O’Donnell, Thomas A., ‘The Margin of Appreciation Doctrine: Standards in the
Jurisprudence of the European Court of Human Rights’, in Human Rights Quarterly,
Vol.4 No.4 (Winter 1982), p.495
2 Toryblogs: http://conservativehome.blogs.com/thetorydiary/2012/01/davidcameron-tells-the-european-court-of-human-rights-to-return-to-its-foundingprinciples.html
3 Cameron, D., ‘Speech on the European Court of Human Rights’, speech to the
Council of Europe, Strasbourg January 25th, 2012:
http://www.guardian.co.uk/law/2012/jan/25/cameron-speech-european-courthuman-rights-full
4 Council of Europe, ‘High Level Conference on the Future of the European Court of
Human Rights’, http://www.coe.int/t/dgi/brighton-conference/default_EN.asp
1
4 Are the critics right and has the margin of appreciation shrunk?
Will the margin of appreciation increase after Brighton?
The first question is essentially engaged with looking for a culprit: has the
Court over the years changed its ways so as to warrant the fierce British
criticism?
In order to provide a full evaluation the thesis will start off with describing
the gradual emergence of the margin of appreciation in the Court’s history,
starting with the first cases and ending with Article 2 and 3 cases which for
long have remained terrae incognitae for the margin of appreciation.
Secondly, this thesis will analyze the nature of the most recurrent criticism
the Court has received on the margin. The second chapter will finish with an
evaluation of the first question: are the critics right and has the margin of
appreciation shrunk?
In addition to this elaborate evaluation of the margin of appreciation, I will
analyze the British criticism in order to evaluate the relationship between
the Court and the nation states envisaged by the political leaders who
pushed for reforms at the Brighton conference. The third chapter will
describe what Cameron and other European leaders wanted to change. In
the conclusion of the third chapter I will analyze whether they have
succeeded in mending the Court’s ways from the outside.
5 Jan Paternotte – The Margin of Appreciation under fire 1. The margin of appreciation in ECtHR history
1.1. The concept in international law
‘Margin of appreciation’ is the English translation of the French concept:
Marge d’appreciation. The doctrine was used in the jurisprudence of the
French Conseil d’Etat and several other judicial institutions on the continent
to define the latitude courts should leave to administrative organs when
reviewing decisions.5 The marge d’appreciation as a concept appeared in
German law as well, be it under different names such as
Beurteilungsspielraum or Ermessensmisbrauch.6 Spielraum is literally
German for ‘room to play’. According to margin expert Charles Yourow the
origins also stem from classical martial law.7
The European Court of Human Rights is widely credited for coining the
modern meaning of ‘margin of appreciation’ as a concept in international
law. Fellow international courts such as the Inter-American Court of Human
Rights and the International Court of Justice, however, rarely apply the
term.8 This Strasbourg ownership of the concept is evidence of the unique
supranational character of the ECtHR, as the only international court in the
world where thousands of individuals have been allowed to file complaints
against the protection of their fundamental freedoms in national legal orders.
1.2 The margin of appreciation in the European Convention of
Human Rights
Although the legal concept margin of appreciation did not emerge as an
important factor in international law until the European Court of Human
Rights introduced it in their jurisprudence, the question whether the ECtHR
as an international court should perform a ‘full’ judicial review or whether it
should leave some elbow room to the national jurisdiction could already have
been foreseen at the time when the European Convention of Human Rights
was concluded.
Still, the ECHR left much of its content to be clarified by the Court. First of
all, the ECHR contains a general derogation clause in the form of Article 15,
Brauch, J.A., ‘The margin of appreciation and the jurisprudence of the European
Court of Human Rights: threat to the rule of law’, in Columbia Journal of European
Law 113, 2004-2005, p.115
6 Yourow, H.C., ‘The margin of appreciation in the dynamics of European Human
Rights Jurisprudence’, International Studies in Human Rights, Martinus Nijhoff
Publishers 1996, Dordrecht, the Netherlands, p.14
7 Ibid.
8 Carozza, P., ‘Fifty years of the European Court of Human Rights viewed by Its
Fellow International Courts – remarks by Paolo Carozza, president of the InterAmerican Commission on Human Rights’, Strasbourg, January 30, 2009
5
6 ‘Derogation in time of emergency’. 9 The derogation article contains several
norms in need of interpretation, including the question what kind of
situation is ‘threatening the life of the nation’ and to what extent acting in
breach of the convention has taken place ‘to the extent strictly required by
the exigencies of the situation’. Only the right to life (except in lawful acts of
war), the prohibition of torture and slavery and the ban on non-legal
punishment (nulla poena sine lege) are excluded from the derogation option.
In addition to Article 15, Articles 8-11 provide slightly different
accommodation clauses for the classic negative freedoms, including speech,
respect for private and family life, freedom of religion and freedom of
assembly. The right to the protection of private property was later added in
Protocol 1, Article 1, as well as the freedom of movement within a state in
Protocol IV, Article 2. For these six freedoms, the convention contains
conditions under which a state can interfere with these rights.
Each of these interferences has to be prescribed by law. A derogation from
Articles 8-11 or Protocol IV, Article 2 also requires some variation of the
phrase ‘necessary in a democratic society in the interests of national security
or public safety, for the maintenance of ordre public, for the prevention of
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others’. 10 Private property, finally, can be seized
according to the law and ‘in the public interest’.11
All these excuses leave much for the Court to interpret. From a
constructionist perspective, these are the only articles in the Convention in
which the writers clearly intended to create a ‘grey area’ in which states can
deviate from the strict interpretation of the Convention. However, as will be
discussed, if the writers of the European Convention intended to limit the
grey area to these Articles, they had better written a lengthier text.
ECHR, Article. 15
Derogation in time of emergency
1. In time of war or other public emergency threatening the life of the nation any
High Contracting Party may take measures derogating from its obligations under
this Convention to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other obligations under
international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful
acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this
provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep
the Secretary General of the Council of Europe fully informed of the measures
which it has taken and the reasons therefor. It shall also inform the Secretary
General of the Council of Europe when such measures have ceased to operate and
the provisions of the Convention are again being fully executed.”9
10 ECHR, Article 8-11 and ECHR, Protocol IV, Article 2
11 ECHR, Protocol I, Article 1
9
7 Jan Paternotte – The Margin of Appreciation under fire 1.3. The emergence of margin methodology in ECtHR
jurisprudence
The birth of the margin of appreciation in the jurisprudence of the Court
shows a clear pattern: the first cases dealt with the general derogation
Article 15 and included the civil unrest in Ireland and the aftermath of the
Greek colonels’ coup d’etat of 1967. These cases were followed by cases on
Articles 8-11, and subsequently the margin of appreciation made its way
into jurisprudence of every Convention article.
1.3.a Reasonable deduction in Lawless v. Ireland
The first Article 15 cases dealt with the amount of discretion awarded to the
state, both in deciding when a public emergency can be declared and, once
declared, to what extent the state could deviate from the Convention
obligations. States tended to interpret a public emergence as a situation in
which they should not mind the ECHR.
The very first landmark case to make Strasbourg jurisprudence was Lawless
v, Ireland. On 11 July 1957, a man by the unfortunate name of Gerard
Richard Lawless was arrested in Ireland as member of the Irish Republican
Army when trying to travel from Ireland to Great Britain. Lawless was
preventively detained without trial for five months under the Offenses
against the State Act. Ireland invoked Article 15 to justify these
extraordinary detention powers, which they admitted were in breach of
Articles 5-7 of the Convention.1213 But, according to Ireland, Article 15
clearly provided the solution, as it was
“inconceivable that a Government acting in good faith should be held to be in
breach of their obligations under the Convention merely because their
appreciation of the circumstances which constitute an emergency, or of the
measures necessary to deal with the emergency, should differ from the views
of the Commission or of the Court”.14
Essentially, the Irish reasoning came down to a very marginal role for the
Court, as it could remain idle as long as Governments acts in good faith. The
Strasbourg institutions disagreed. When his case came to the ECtHR, the
European Commission on Human Rights (the Commission) in its role as the
gateway to the ECtHR15, presented its findings to the Court:
“The question of whether or not to employ exceptional powers under Article 15
involves problems of appreciation and timing for a Government which may be
Yourow, p. 16-17
O’Donnell, p. 493
14 Merrils, J.G., ‘The Development of International Law by the European Court of
Human Rights’, p. 152-153
15 Up to the adoption of Protocol 11 the European Commission on Human Rights
served as the gateway to the ECtHR.
12
13
8 most difficult, and especially difficult in a democracy. [….] the Government has
to balance the ills involved in a temporary restriction of fundamental rights
against even worse consequences. […] The concept of the margin of
appreciation is that a Government’s discharge of these responsibilities is
essentially a delicate problem of appreciating complex factors and of balancing
conflicting considerations of the public interest; and that, once the Commission
or the Court is satisfied that the Government’s appreciation is at least on the
margin of the powers conferred by Article 15 […] requires a decision in favor of
the legality of the Government’s appreciation.”16
With this presentation, president of the Commission Sir Humphrey Waldock
became the Strasbourg official who introduced the concept margin of
appreciation. He construed a way for the Court to navigate between full
deference to national discretion and an independent European appraisal of
the case. The Court agreed, and held that “it is for the Court to decide whether
the conditions laid down in Article 15 for the exercise of the exceptional right of
derogation have been fulfilled”.17
The Court did not invoke the margin itself yet, but held that “the existence at
the time of a public emergency threatening the life of the nation was reasonably
deduced by the Irish government”.1819 As the first interpretation of Article 15,
this phrase suggested that the Court would assert itself of a ‘reasonable
deduction’ rather than performing a full review of whether there is indeed an
emergency situation. It is remarkable the Court all but ignored the four
elements constituting a ‘public emergency’ which they themselves defined20 :
“(1) An exceptional situation of crisis or
(2) an emergency which (3) affects the whole population and (4) constitutes a
threat to the organized life of the community of which the State is composed.”
21
The fact the Court does specify the elements constituting a public
emergency, but refrains from directly applying these elements to the case at
hand is evidence of the implicit discretion allowed to the state in this first
Article 15 case. Even though the Court has a clear understanding of the
concept of a public emergency, it leaves the state significant room to define a
public emergency themselves.
Commission: Lawless v. Ireland, quoted in Merrills, p. 153
Lawless v. Ireland no.3, par. 22
18 Merrils, p. 153
19 Lawless v. Ireland no. 3, par. 28
20 O’Donnell, p.494
21 Lawless v. Ireland, par. 28; The Court enumerated a variation of the same
requirements in Greek Colonels: 1. A situation of crisis, or; 2.exceptional and
imminent danger; 3.which affects the whole population; 4.and constitutes a threat
to the organized life of the community of which the State is composed.
16
17
9 Jan Paternotte – The Margin of Appreciation under fire 1.3.b More than just good faith in Greek Colonels
In the Greek Colonels case, in which four Council of Europe members filed
allegations of breaching several Convention Articles against the novice Greek
junta, the Court for the first time expressly referred to the margin. The
concept of ‘reasonable deduction’ was given more substance:
“in the present case the burden lies upon the respondent Government to show
that the conditions justifying measures of derogation under Article 15 have
been and continue to be met, due regard being had to the ‘margin of
appreciation’.”22
The case never led to a ruling, as Greece quickly withdrew from the CoE,
making it known in a December 1969 speech to the Council of Europe
conference in Paris.23 Notwithstanding Greece’s withdrawal, through this
case the Court made clear that good faith was not to be simply supposed,
but that good faith would have to be supported by evidence. It was the first
instance of a Court showing its supervision teeth.
1.3.c No independent assessment in Ireland v. United Kingdom
As Greece’s withdrawal from the CoE prevented the Court from ruling in the
Greek Colonels case, the 1978 case Ireland v. United Kingdom became the
first interstate case in the history of the ECtHR. Its role reversed from the
Lawless case, Ireland was the applicant in this case. The Irish alleged
massive violations of protected rights by the British in their treatment of IRA
prisoners, including prolonged detention for interrogation and preventive
detention for unspecified periods of time, in breach of Articles 3, 5, 6, 14 and
15 of the Convention.24 Ireland did not question the existence of a public
emergency, but rather claimed the UK had acted ultra vires and had
overstepped the margin Article 15 leaves to the state.25 The case made the
Court clarify the limits of their judicial review system:
“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 scope of derogations necessary to avert it. In this matter
Article 15(1) leaves those authorities a wide margin of appreciation. […]
nevertheless, the States do not enjoy unlimited power in this respect. The Court
[…] is responsible for ensuring the observance of the States engagements
(Article 19), is empowered to rule on whether the States have gone beyond the
Yourow, p. 18
Pipinelis, P., ‘Withdrawal of Greece from the Council of Europe speech by the
foreign minister of Greece at the committee of ministers of the Council of Europe’,
in International Legal Materials, Vol.9, No.2 (March 1970), American Society of
International Law, p.396-410
24 Yourow, p.19
25 O’Donnell, p.494, Yourow, p.19
22
23
10 ‘extent strictly required by the exigencies’ of the crisis. […] The domestic margin
of appreciation is thus accompanied by a European supervision.”26
These words received more meaning in another sentence of the ruling, with
regard to a specific Irish complaint:
“It is certainly not the Court’s function to substitute for the British Government’s
assessment any other assessment of what might be the most prudent or most
expedient policy to combat terrorism. The Court must do no more than review
the lawfulness, under the Convention, of the measures adopted by that
Government.”27
1.3.d The derogation parameters in a modern case: A. and others v.
United Kingdom
Ever since 1978, Article 15 has been rarely invoked. The Grand Chamber
only saw one more case, again involving the United Kingdom, this time
because of the preventive detention of suspected Al Qaeda terrorists in the
aftermath of the 9/11 attacks on the United States. The House of Lords had
concluded that the public emergency existed, but that the measures taken in
response were not strictly required by the exigencies of the situation.
Interestingly, the government sought (unsuccessfully) to have the House of
Lords ruling overturned by the ECtHR.
The Court reiterated the ‘better placed’ doctrine, and this time concluded:
“Accordingly, in this matter, a wide margin of appreciation should be left to the
national authorities. Nonetheless, contracting parties do not enjoy an unlimited
discretion. It is for the Court to rule whether, inter alia, the States have gone
beyond the “extent strictly required by the exigencies” of the crisis. […]In
particular, where a derogating measure encroaches upon a fundamental
Convention right, such as the right to liberty, the Court must be satisfied that it
was a genuine response to the emergency situation, that it was fully justified
by the special circumstances of the emergency and that adequate safeguards
were provided against abuse.” 28
The Court went on to observe that it is ‘striking’ that only the United
Kingdom invoked Article 15 in the wake of 9/11, while other countries in
Europe faced similar threats. However, this consensus among contracting
states to not invoke Art. 15 was declared irrelevant, as that is where states
enjoy their margin of appreciation.
In the ruling, the Court shows there is a consistent two-stage test involved in
Article 15 judgments. First, the Court has to establish whether a public
emergency existed, and if so, whether the “nature and scope of the measures
26
27
28
Ireland v. UK 1978, p. 207
Ireland v. UK, 1978 p. 214
A and others v. UK, 2009, p.173 and p.184
11 Jan Paternotte – The Margin of Appreciation under fire taken were necessary to avert it”.29 In both stages, the Court will allow the
state a wide margin of appreciation, which is much alike the ‘reasonable
deduction’ test from Lawless.
There is a red thread in the restraint the Court exercised both in the IRA
cases and in the Al Qaeda case, and it is clear the Court is inclined to follow
the reasoning of the highest domestic court in these cases. This is not
surprising with regard to the nature and scope of the measures, as
overturning the Lords’ judgment would not just imply less discretion for the
domestic courts, but also less protection of Convention freedoms. The red
thread is evident in the way the Court approves of the invocation of a public
emergency: both in the IRA cases an in A. and Others v. United Kingdom the
Court only performs a marginal review.
As this thesis will discuss later, the fact that the Court oddly refers to a
European consensus reasoning against a ‘public emergency threatening the
life of the nation’, but gives no (obvious) weight to this fact in their ruling is
indicative of the fact that a variety of elements is involved in invoking the
margin of appreciation. Also, it shows the Court does not always reveal
which factors have made them rule the way it did.
1.3.e Legacy of the Article 15 cases: the flexible margin
Most of the parameters mentioned in relation to these five cases solely
describe the Court’s interpretation of Article 15. However, two principles
became part of many invocations of the margin of appreciation: firstly the
precept that state governments and judges are ‘better positioned than
international judges’. Secondly the fact that the Court will only indicate ex
post whether a certain governmental behavior was indeed lawful.30 By only
‘reviewing the lawfulness’ the Court will refrain from sketching ex ante the
boundaries of the margin of appreciation. That is unhelpful to other
governments which in a future emergency could have utilized such a sketch
to determine to what extent they can and cannot violate Convention
provisions. This characteristic makes clear that their will never be a ‘fixed
margin’ or an ‘absolute minimum standard of protection’. In 1999,
Hutchison endeavoured to find the limit to the margin of appreciation, or the
“floor below which no State may fall if it is to stay within the terms of the
Convention”. He quickly reached the conclusion that the Court avoids
defining a ‘floor’, thus pre-empting the possibility its jurisprudence would
create an alternative or more elaborate Convention, but also making its
Kratochvil, J., ‘The inflation of the margin of appreciation by the European Court
of Human Rights’, in Netherlands Quarterly of Human Rights, Vol.29/3, 324-357
(2011), p. 349
30 Except in cases of appeal to expulsion or extradition, in which the Court rules ex
nunc
29
12 rulings harder to predict and the interpretations of specific Articles much
harder to anticipate.31
1.4. The margin in Personal Freedoms cases
Besides the Article 15 cases, the second category of margin of appreciation
jurisprudence concerns personal freedoms cases. Over the years they have
provided the Court with more hard labour than Artice 15. The
accommodation clauses of Artice 8-11 (and the personal freedoms in the
Protocols) require restrictions to be prescribed by law or in accordance with
the law, necessary in a democratic society and serving one or more of the
public interests mentioned in the Article. These Convention yardsticks gave
little guidance to the ECtHR, and in the very first cases dealing with
accommodation clauses the Court practically copied their reasoning in
public emergency cases.
The turning point is generally considered to be 1976. In the Handyside case
the Court felt compelled to do more than just affirm the reasonable
deduction made by the state.32
1.4.a The margin and European supervision: hand in hand in Handyside
Richard Handyside, proprietor of ‘stage 1’ publishers, purchased the selling
rights for ‘The Little Red Schoolbook’, a book intended for schoolchildren
written by two Danish authors and including a controversial chapter on sex.
For distributing the book in England, Handyside received fines under the
Obscene Publications acts of 1959 and 1964. The United Kingdom
recognized that his freedom of expression had been curtailed, but held that
this restriction was justified. In 1972, Handyside lodged a complaint with
the European Court.33
The margin of appreciation became the cornerstone for the Court’s ruling:
“the machinery of protection established by the Convention is subsidiary to the
national systems safeguarding human rights”.34 How this subsidiarity creates
a certain margin is the key point in the ruling:
“A crucial problem [is] how to determine whether the actual ‘restrictions’ and
‘penalties’ complained of by applicants were ‘necessary in a democratic
society,’ ‘for the protection of morals’. According to the Government and the
majority of the Commission, the Court has only to ensure that the English
Hutchison, M.R., ‘The margin of appreciation doctrine in the European Court of
Human Rights’, in The International and Comparative Law Quarterly, Vol.48, No.3
(July 1999), p. 642-643
32 Hutchison, p.639
33 Merrills, p. 161
34 Handyside v. United Kingdom 1976, p. 48
31
13 Jan Paternotte – The Margin of Appreciation under fire Courts acted reasonably, in good faith and within the limits of the margin of
appreciation left to the Contracting States by Article 10 (2).
[…] It is in no way the Court’s task to take the place of the competent national
courts but rather to review under Article 10 the decisions they delivered in the
exercise of their power of appreciation.35 (However, the Court’s supervision
would generally prove illusory if it did no more than examine these decisions in
isolation; it must view them in the light of the case as a whole; including the
publication in question and the arguments and evidence adduced by the
applicant in the domestic legal system and then at the international level. The
Court must decide, on the basis of the different data available to it, whether the
reasons given by the national authorities to justify the actual measures of
‘interference’ they take are relevant and sufficient under Article 10 (2).)”36
This interpretation of Strasbourg for the first time includes a clear indication
of the willingness to “measure and supervise the parameters of the margin
which they will allow to the national authorities in the exercise of their
recognized discretion”.37 This makes Handyside a stark departure from the
style employed in personal freedoms and Articles 5 and 6 cases preceding
the judgment, which was largely based on the judicial restraint exercised in
public emergency Article 15 cases.38 This development is best captured in a
phrase in paragraph 49 of Handyside:
“The domestic margin of appreciation thus goes hand in hand with a European
supervision.”39
Thus the Court paved the way for a more stringent review of a state’s
actions. Still, in this instance the Court upheld the government’s
justification for the infringement of the Freedom of Expression invoking
Article 10 (2)’s limitation for ‘the protection of morals’, citing a lack of
European consensus as to what constitutes morality.
1.4.b Same article, different margin: Sunday Times v. United Kingdom
The personal freedoms system of supervision reached the next stage of
maturity in one of the more famous cases in Strasbourg history: Sunday
Times v. United Kingdom.
In the 1950s and 1960s around 2000 British children were born with one or
several missing limbs, severely shortened arms or legs and in some cases
malformations of eyes, ears, heart, genitals or kidneys. Almost half of them
The Court uses the phrase ‘power of appreciation’, but the context makes clear
this phrase is interchangeable with ‘margin of appreciation’. The Court has invoked
the phrase power of appreciation in 262 cases.
36 Handyside v. United Kingdom 1976, p. 47, 48 and 50
37 Yourow, p. 48
38 Yourow, p. 45
39 Handyside v. United Kingdom 1976, par.49
35
14 died within six months of birth, 466 survived childhood. It is assumed the
deformations were caused by the pregnancy tranquilizer ‘thalidomide’, a
drug licensed in the UK in 1958 and manufactured by Distillers Company.
In 1972, the Sunday Times published an article entitled ‘Our Thalidomide
Children: A Cause For National Shame’, the first of a series of articles in
which the Sunday Times planned to give a detailed description of the history
of the drug and the consequences for the affected families.4041
Distillers Company filed a complaint with the Attorney General, claiming the
publications interfered with the process of adjucation in the proceedings
dealing with tort claims. The High Court held the Sunday Times in contempt
on those grounds, and forbade further publication of the announced stories.
In third instance, the Lords confirmed the High Court’s ruling. The
injunction remained in effect until 1976, when publication was allowed
again. By that time, the Sunday Times had lodged a freedom of expression
complaint with the ECtHR.4243 In this case, the applicants succeeded in their
Article 10 complaint, even though the Court indicated that the UK enjoyed ‘a
certain margin of appreciation’ in the matter.44
No clear specification of the width of the margin is offered by the Court, but
it did make the distinction between Handyside and Sunday Times:
“The scope of the domestic power of appreciation is not identical as regards
each of the aims listed in Article 10 (2). The view taken by the Contracting
States of the ‘requirements of morals’ varies from time to time and from place to
place, especially in our era. […] The same cannot be said of the far more
objective notion of the "authority" of the judiciary. […] This is reflected in a
number of provisions of the Convention, including Article 6 (art. 6), which have
no equivalent as far as ‘morals’ are concerned. Accordingly, here a more
extensive European supervision corresponds to a less discretionary power of
appreciation.”45
Yourow observes:
“The basis for this decisive disctinction is the notion of the existence of an
identifiable European consensus as to the meaning of ‘judicial impartiality and
authority’. Unfortunately, no further particulars of the elements of consensus
among the States Parties are elaborated in the opinion.”
What is clear is that the difference in ‘aim’, i.e. the protection of morals
versus the protection of the impartial judiciary, is decisive. 46 This led
40
41
42
43
44
45
46
Sunday Times . United Kingdom no.1 1979, par. 11
http://www.independent.co.uk/news/media/a-battle-won-late-1247236.html
http://www.independent.co.uk/news/media/a-battle-won-late-1247236.html
Yourow, p. 110, 111
Kratochvil, p. 340
Sunday Times v. United Kingdom no.1 1979, p. 59
Yourow, p. 113
15 Jan Paternotte – The Margin of Appreciation under fire critics, inside and outside the Court, to point at a perceived lack of
consistency:
“[I]t may appear quite difficult to reconcile the attitude shown by the European
Court toward the domestic ‘margin of appreciation’ in Handyside with that
exhibited in the Sunday Times case. The idea that there is naturally a greater
variety in standards of morality among the European nations than there is in
standards for the maintenance of judicial authority does not seem any more
self-evident to the writer than it did to the dissenters”.47
Remarkably, the Court also noted the fundamentality of a free press for a
democratic system, but it’s not clear whether this fundamentality was as
decisive as the difference between the protection of the authority of the
judiciary and the protection of morals. The fundamentality has nothing to do
with the ‘legitimate aim’, but with the importance of a subcategory of the
freedom of expression that is the freedom of the press.48 In other words: all
expressions are protected by the Convention, but then again not all
expressions are equally protected.
In the Muller case (1988), the Court dealt with a Swiss fine for public display
of graphic images of sexual intercourse between people and animals. In this
case the Court also noted the importance of ‘freedom of artistic expression’:
“Those who create, perform, distribute or exhibit works of art contribute to the
exchange of ideas and opinions which is essential for a democratic society.”49
Still, after taking a thorough look at the images the Court concluded
Switzerland had not acted unreasonably in finding them ‘grossly offensive’.50
What is made clear in the Sunday Times case as well as in Muller is that the
width of the margin of appreciation is not determined before the Court starts
discussing the merits, in which is the practice in the Article 15 cases. In the
public emergency cases the Court will consider if Article 15 is correctly
invoked, and if that is the case a wide margin of appreciation will be
declared. In the personal freedoms cases on the other hand the margin of
appreciation more or less interacts with other factors in the case. Through
Handyside and Sunday Times the margin has emerged as an important
doctrine in applying the accommodation clauses of Article 8-11, which
seemed to be prominently influenced by the European consensus, or lack
thereof, of the morals involved. The fact that public morals are not always
sufficient reason to derogate from the ECHR became a target for criticism in
the next case to be discussed.
Nathanson, N., ‘The Sunday Times Case: Freedom of the Press and Comtempt of
Court under English Law and the European Human Rights Convention.”, 68
Kentucky Law Journal 971, 1979-1980
48 O’Donnell, p.483
49 Muller and Others v. Switzerland 1988, par.33
50 Merrills, p. 162
47
16 1.4.c When morals don’t matter: Dudgeon case
The major Article 8 (private and family life) case is Dudgeon v. United
Kingdom. Jeff Dudgeon was a gay rights activist in Belfast, Northern Ireland
in the 1970s. At the time, under Ulster law, homosexual activities were
considered illegal, and Dudgeon was once questioned, but not prosecuted,
by the police. Dudgeon lodged a complaint with the ECtHR, citing the law
infringed his privacy protected by Article 8. This case has often been
compared to Handyside, because of the aspect of morality involved. Two
differences seem to have led the Court to require the UK to strike Northern
Ireland’s sodomy law. First of all the fact that in domestic law of almost all
contracting states gay sex between consenting adults is not considered a
crime.51 Secondly the fact that the case concerns ‘a most intimate aspect of
private life’:
“Accordingly, there must exist particularly serious reasons before interferences
on the part of the public authorities can be legitimate for the purposes of Article
8 (2).”52
The case further amplifies the practice of looking at domestic law to find a
European consensus, and creates the concept of ‘a most intimate aspect of
private life’, which, like in Sunday Times points to the fundamentality of a
subcategory of one’s private life, namely one’s sexual life. Both factors played
a role in overcoming the main obstacle for the Court: the ‘necessity in a
democratic society’ requirement of Article 8 (2), which had made them defer
to the state judgment in the Handyside case. In the Dudgeon case too, the
Court had to admit that the government presented a ‘relevant factor’ when
the United Kingdom pointed to the public opinion in Northern Ireland:
“The Government drew attention to […] profound differences of attitude and
public opinion between Northern Ireland an Great Britain in relation to
questions of morality. Northern Irish society was said to be more conservative
and to place greater emphasis on religious factors, as was illustrated by more
restrictive laws even in the field of heterosexual conduct. […] The Court
acknowledges that such differences do exist to a certain extent and are a
relevant factor.”53
Therefore, the Court accepted the existence of a ‘necessity’, and said to have
no doubt the UK acted in good faith in allowing Northern Ireland to continue
criminalizing sodomy.54 However, in order to establish the ‘necessity in a
democratic society’ required by the Convention the Court also examines the
proportionality of the measures relative to the legitimate aim pursued.
McLoughlin, M., ‘Crystal or Glass?: a review of Dudgeon v. United Kingdom on
the Fifteenth Anniversary of the Decision.’, Murdoch University Electronic Journal
of Law, Vol.3, No.4 (december 1996)
52 Dudgeon v. United Kingdom 1981, par. 52
53 Dudgeon v. United Kingdom, par. 56
54 Dudgeon v. United Kingdom, par.58-59
51
17 Jan Paternotte – The Margin of Appreciation under fire Subsequently, the Court weighed the ‘detrimental effects which the very
existence of legislative provisions in question can have on the life of a person
of homosexual orientation’ against the modest benefit of satisfying the
majority. Thus the Court, ‘notwithstanding the margin of appreciation’
concluded the sodomy laws could not be necessary in a democratic society.55
In this case, morals lost to the intimacy of the specific right protected.
Dissenting judge Zekia expressed his surprise, and referred to the allimportant role attributed to public morals in Handyside:
“In ascertaining the nature and scope of morals and the degree of the necessity
commensurate to the protection of such morals in relation to a national law […]
the jurisprudence of this Court has already provided us with guidelines.”56
Hutchison seems to understand Zekia’s confusion. Discussing the Dudgeon
case he concluded:
“[When invoking the margin of appreciation] various factors pull in opposing
directions.”57
Hutchison and Zekia definitely strike a nerve: the Court accepts the public
morals interest involved, but goes on to scrutinize the proportionality of the
state’s behavior. Still, would it be reasonable for the Court allow a CoE
member state to criminalize such a very private matter one’s sexual life
really is? A reverse judgment could have invited critics to say that the
European Convention only protects private life as long as the majority
approves of your way of life. Still, the reasoning of the Court is a legitimate
object of legal criticism: the various factors involved do pull in opposing
directions and it is hard to derive any predictability from this case as to
which level of protection of which specific morals constitute an acceptable
derogation from the ECHR.
1.5. Emergence of the margin in other cases
One can say that for Article 15 and the personal freedoms articles (including
the protocols) the text of the Convention created the margin of appreciation.
The personal freedoms in the Convention are not absolute, the
accommodation clauses allow for a grey area in which these rights do not
demand absolute protection.
The same is not true for Article 14: Discrimination and Equal protection.
This Article can only apply in conjunction with another Article as it concerns
the undiscriminatory application of all the rights and freedoms of the
Convention. Discrimination is not allowed, but first it has to be established
whether a Convention freedom is at stake. The margin of appreciation
55
56
57
McLoughlin, p.45-58
Dudgeon v. United Kingdom, Dissenting Opinion of Judge Zekia, par.5
Hutchison, p. 641
18 should come into play in order to determine whether the state had ‘an
objective and reasonable justification’ to infringe upon Article 14, a doctrine
derived from the Belgian Linguistics case in which Walloon parents requested
French language education for their children in Belgium:
“The Contracting States enjoy a certain "margin of appreciation" in assessing
whether and to what extent differences in otherwise similar situations justify a
different treatment in law. […] The scope of the margin of appreciation will vary
according to the circumstances, the subject-matter and its background.”58
This doctrine leaves much if not everything for the Court to fill in, because it
is clearly a specification of a lack of guidance from the side of the
Convention. Hence, Article 14 makes a potential contributor to murky
margins cases.
1.5.a No margin for mothers: the Marckx and Rasmussen cases
In some cases, the Discrimination article has the effect of narrowing the
margin of appreciation awarded to states in the protection of another Article.
The best example is the Marckx case (1979). In this case a mother and her
born-out-of-wedlock daughter filed a complaint against a Belgian law
distinguishing between legitimate and illegitimate children in several aspects
of private law, including the right to inherite. Mother and daughter alleged a
breach of their right to private property (Protocol 1, Article 1) and Article 14.
By 1979, the Court had established a broad margin of appreciation for states
to curtail private property in the ‘public interest’. In this case, however, the
inequality before the law squashed that margin, and made the Court order
Belgium to change these provisions of private property law. Judge
Fitzmaurice, also a dissenter in Sunday Times v. United Kingdom, referred in
his dissent to the margin of appreciation and expressed his belief that a
government acting bona fide and for good reasons should be allowed more
latitude: “The Strasbourg authorities are dangerously overreaching their
mandate.”59 60
In other cases the Court found a ‘reasonable justification’ for the
discriminatory legislation at issue. One case stands out because of the
unanimous decision to throw out the complaint, even though the Court did
consider it discrimination. In Rasmussen v. Denmark, Rasmussen wanted to
challenge the paternity of a child in the custody of his ex-wife. However,
under Danish law fathers cannot challenge paternity when they have ‘tacitly
acknowledged’ fatherhood while harboring doubts about their biological
paternity, whereas mothers can indefinitely seek to have the non-biological
father give up his paternity.61 This is called the ‘doctrine of
58
59
60
61
Rasmussen v. Denmark, p. 40
Yourow, p.158-164
Marckx v. Belgium, dissenting opinion of Judge Fitzmaurice, p.5
Rasmussen v. Denmark, p.16-18
19 Jan Paternotte – The Margin of Appreciation under fire acknowledgement’, and serves the purpose of protecting stability and welfare
for children.62 A law discriminatory (Article 14) in the exercise of respect for
family life (Article 8), according to Rasmussen. Citing the lack of European
consensus in the matter of who can challenge paternity and when, the Court
held Denmark to have a legitimate aim while “having regard to their margin of
appreciation, the authorities also did not transgress the principle of
proportionality”.63
It is not entirely clear from the Court’s reasoning which fact tipped the
balance against the state in one family law case, and in favor of the
government in another family law case. In Marckx the Court concludes that
the national law is not accorded the status of “legitimate expression of the
national public interest”.64 The fact that the Belgian government did not offer
a special argument for the discriminatory law (which Denmark did) plays a
role65, as perhaps does the fact that ‘it could not be said that the former
Danish legislation on this matter was at the material time less progressive
than that of the other Contracting parties of the convention’.66 In other
words: Denmark’s legislation did not contravene the European consensus.
Belgium, on the other hand, was held to have decidedly backward
legislation:
“In the instant case, the Court cannot but 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, in company with the relevant
international instruments, towards full juridical recognition of the maxim ‘mater
semper certa est’.”67
Noting the European consensus, the Court went on to note a number of
international treaties (to which Belgium was not a party) dealing with the
rights of illegitimate children in support of the ‘evolution’ argument.68
Even though international treaties apart from the ECHR, the special
argument submitted by Denmark and the European consensus are decidedly
strong arguments, especially taken together, it is not clear which one of
them, or which combination of them, tipped the balance in favor of Denmark
in one case and against Belgium in the other.
62
63
64
65
66
67
68
Yourow, p. 166
Rasmussen v. Denmark 1984, par.41
Marckx v. Belgium 1979 par.65
Marckx v. Belgium, 1979 par. 61
Rasmussen v. Denmark 1984, par.39iv
Marckx v. Belgium 1979, par. 41
O’Donnell, p.480-481
20 1.5.b Modern times: ‘very weighty reasons’ to treat one gender more
equal than others
Family law cases in conjunction with Article 14 tend to make the Court
perform a full assessment of the case at hand. In March 2012 the Grand
Chamber overturned a precedent in a typical male rights case: Konstantin
Markin v. Russia. A Russian military serviceman had requested the parental
leave only women in the service are entitled to (according to Russian law). He
only got three months leave awarded, while women could get three years. In
a similar case, Petrovic v. Austria the Court had found Austria not in breach
of Article 8 for distinguishing between men and women in the service,
because of the lack of European consensus on the matter.69
In the case of Constantin Markin the Court reached the reverse conclusion.
The case shows that the Court believes it has more reasons than before to
scrutinize the contracting states’ family law in these modern times, not just
because of an evolving European consensus, but also because of the special
place of gender equality:
“The Court further reiterates that the advancement of gender equality is today
a major goal in the member States of the Council of Europe and very weighty
reasons would have to be put forward before such a difference of treatment
could be regarded as compatible with the Convention. […] In particular,
references to traditions, general assumptions or prevailing social attitudes in a
particular country are insufficient justification for a difference in treatment on
grounds of sex. For example, States are prevented from imposing traditions
that derive from the man’s primordial role and the woman’s secondary role in
the family.”70
The doctrine of ‘very weighty reasons’ is described in the judgment quickly
after the Court has recalled the fact states enjoy a ‘certain margin of
appreciation’ in assessing whether and to what extent differences in
otherwise similar situations justify a difference in treatment. On the other
hand, the Court goes to more lengths to support their argument that the
European consensus has shifted between 1998 (Petrovic v. Austria) and
2012. The Court has even conducted a study, and provides a summary in
the Konstantin judgment showing the fact that Russia is indeed not on the
side of the European consensus.71
This judgment is therefore both a clear successor to Marckx v. Belgium and a
new development. Firstly, a consistent successor in the sense that again the
European consensus is the traffic maker. Secondly, a development in the
sense that the Court lists many more ‘general principles’ it applies to the
case, as well as other sources of law like the European Social Charter,
69
70
71
Konstantin Markin v. Russia 2012, p.98, 99
Konstantin Markin v. Russia 2012, par. 127
Konstantin Markin v. Russia 2012, par.71-75
21 Jan Paternotte – The Margin of Appreciation under fire European Court of Justice (ECJ) jurisprudence, EU Council directives and
international treaties.
Although it is not clear whether all these documents have played a decisive
role in the judgment, the Court gives the impression that a substantial
amount of international law can shrink the margin of appreciation otherwise
afforded because of an Article 8 (2) invocation. Over the years, the number of
international treaties has grown and the Court has simultaneously
developed the habit of enumerating the international treaties which cover the
substance of the case before them.
1.5.c The out-of-jail case law: deprivation of liberty, due process and
the margin of appreciation
A category in which the Convention did not offer any discretion in the
language of the treaty is Articles 5 and 6: the right to liberty and the right to
a fair trial (procedural due process). According to Yourow, in the earlier
cases dealing with these articles the Court did not undertake any national
discretion analysis, but rather resembled the role of an appeals court only
undertaking an autonomous interpretation of text, and not of the facts. In
the 1980s, the level of review started to show less modesty, and in Article 5
cases the Court often exhibited a review function more akin to national
courts.72 The reference to an appeals court is used to indicate the fact that
in the 1970s the Court limited itself to scrutinize the understanding of the
law exhibited by the domestic courts.
Notwithstanding the basically unconditional nature of Article 5 and 6 in the
Convention, the Articles do not require the Court to collect the facts of the
case themselves. It seems logical the Court leaves the task of fact finding
primarily to national courts, but the ECHR left that decision to the Court.
The Court therefore had to define their own position in assessing or
reassessing the evidence submitted in the case.
In Article 5 case Luberti v. Italy the Court held that national authorities have
to decide whether an individual can be said to have an ‘unsound mind’73:
“[The national authorities] are to be recognized as having a certain margin of
appreciation since it is in the first place for the national authorities to evaluate
the evidence adduced before them in a particular case; the Court’s task is to
review under the Convention the decisions of those authorities.” 74
72
73
74
Yourow, p. 25-26
Yourow, p. 61
Luberti v. Italy 1984. par.27
22 Remarkably, the Court did invoke the margin of appreciation here, yet only
to emphasize the role the state has in evaluating evidence.75 Deference to the
state in the evaluation of evidence makes perfect sense, but is something
completely different than allowing a margin of appreciation in personal
freedoms cases. Evidence assessment is part of assessing the facts of the
case. The margin of appreciation in the cases discussed before is not invoked
to describe the process of establishing the facts, but is part of a balancing
exercise: in Sunday Times for example the national authorities do not enjoy a
margin of appreciation in order to define the freedom of the press, but to
weigh different interests against each other which taken together may or
may not allow the state to derogate from the freedom of the press.
Attributing a whole new meaning to the phrase margin of appreciation gives
rise to confusion, and the Court could have prevented this by simply
construing a different phrase. For example:
“In principle, the Court is inclined to recognize the evaluation of evidence
adduced before them and performed by national authorities in a particular
case; the Court’s task is to review under the Convention the decisions of those
authorities.”
Nothing would be lost, but the margin of appreciation would not have been
troubled with the matter of evidence assessment.
Nevertheless, it has become standard practice of the Court to refer to the
evaluation of evidence as stemming from ‘a certain margin of appreciation’.
In the 2012 case Braunig v. Germany the Court held that “national authorities
have a certain margin of appreciation regarding the merits of clinical
diagnoses”.76 In Graf v. Germany (2011), the Court used the margin of
appreciation in connection with evidence assessment as well, and held that
“there was nothing to establish that their assessment had been arbitrary or
disproportionate”.77
This suggests the evaluation of evidence is left to the states as long as the
evaluation is not considered arbritrary or disproportionate. An interesting
nuance, be it one rare in the Article 5 jurisprudence.
The confusion created by the use of the margin of appreciation in Article 5
cases has emerged in the past few years when contracting states have,
consciously or not, tried to broaden the purport of the margin of
appreciation in Article 5 cases. In Creanga v. Romania, the state believed
there was no European consensus as to how and how long a person could be
detained when an investigation got under way. Romania wanted freedom to
interpret the norm set by Article 5, but saw this effort fail. The Court stuck
Brems, E. ‘The Margin of Appreciation Doctrine in the Case Law of the European
Court of Human Rights’, Zeitschrift fur auslandisches offentliches Recht. Vol. 56,
no. 1-2, 1996, p. 251
76 Braunig v. Germany 2012, par 75
77 Graf v. Germany, 2012, par. 1a “Whether the applicant was of unsound mind”.
75
23 Jan Paternotte – The Margin of Appreciation under fire to invoking the margin of appreciation only in relation to evidence
assessment.78 Only when other convention freedoms come into play does the
Court broaden the substance of the margin, like in the matter of Lebedev v.
Russia no. 2, where states were held to enjoy a margin of appreciation in
deciding whether allowing camera’s in the courtroom is a part of the freedom
of the press.79
In Article 6 cases, the doctrine used to be only implicitly present. Several
early cases, dealing with the length of proceedings and the Article 6(1)
requirement that ‘judgments shall be pronounced publicy’, showed this
latter condition is met when a verdict is deposited with a registrar rather
than being read out aloud.80 The matter of pronunciation in public was at
hand in the landmark case Pretto and others v. Italy (1983), and the Court
referred to the
“long-standing tradition [in member states of the Council of Europe] of recourse
to other means, besides reading out aloud for making public the decisions of all
or some of their courts”.81
Perhaps a long-standing tradition is a more poetic description of a European
consensus, but the Court does not make that clear. In the more recent
Article 6 case Gomez de la Torre v. Spain the Court started to use the margin
of appreciation for different purposes:
“The “right to a court”, of which the right of access is one aspect, is not
absolute; it is subject to limitations permitted by implication, in particular where
the conditions of admissibility of an appeal are concerned, since by its very
nature it calls for regulation by the State, which enjoys a certain margin of
appreciation in this regard. However, these limitations must not restrict or
reduce a person's access in such a way or to such an extent that the very
essence of the right is impaired; lastly, such limitations will not be compatible
with Article 6(1) if they do not pursue a legitimate aim or if there is not a
reasonable relationship of proportionality between the means employed and
the aim sought to be achieved.” 82
The exact same language, including the legitimate aim and proportionality
requirement, was later used in Waite and Kennedy v. Germany and
subsequently became a recurring test applied in Article 6 cases.83
This inclusion of the margin of appreciation doctrine in cases like Gomez and
Waite and Kennedy is more reminiscent of the personal freedoms version
than it resembles Article 5. The Court declares the ‘right to a court’ to be ‘not
absolute’, and performs a balancing exercise in which the margin of
78
79
80
81
82
83
Creanga v. Romania 2012, par. 81
Lebedev v. Russia no.2 2010, par. 233
Yourow, p. 64-69
Pretto and others v. Italy 1983, par. 26
Brualla Gomez de la Torre v. Spain 1997, par. 33
Waite and Kennedy v. Germany 1999, par.59
24 appreciation for the state is weighed against the impairment of the very right
to be protected. In other words: the state has some elbow room in
interpreting the norm. This emergence of the margin of appreciation in
Article 5 cases shows that the Court has developed the concept beyond the
text of the Convention.
1.5.d The margins terrae incognitae: 1. Morals and the right to life
The right to life is unqualified, the Convention does not allow derogation
from the right to life, not even in cases of public emergency. Still, in Vo v.
France (2004) it seems ‘life’ leaves many questions: “The Court has yet to
determine the issue of the “beginning” of “everyone’s right to life” within the
meaning of this provision and whether the unborn child has such a right.”84
One could argue that answering this question would simply be a matter of
norm-application, like in the ‘persons of unsound mind’ cases mentioned
earlier. That would however be a bit too convenient for a consistently
controversial question: when does life start? In the wording of invocations of
the margin of appreciation in right to life cases this controversiality is
evident:
“[There are] legal, medical, philosophical, ethical or religious dimensions of
defining the human being. […] It follows that the issue of when the right to life
begins comes within the margin of appreciation which the Court generally
considers that States should enjoy in this sphere, notwithstanding an evolutive
interpretation of the Convention, a “living instrument which must be interpreted
in the light of present-day conditions” (see Tyrer v. the United Kingdom). The
reasons for that conclusion are, firstly, that the issue of such protection has not
been resolved within the majority of the Contracting States themselves, in
France in particular, where it is the subject of debate and, secondly, that there
is no European consensus on the scientific and legal definition of the beginning
of life.”85
This language suggests that the Court allows latitude for the states to define
what ‘life’ is, but not because of the morality involved but rather because of
the ongoing debate and the lack of European consensus. That is decidedly
different language than the strict norm-application with regard to ‘persons of
unsound mind’. The Court has not discussed a possible future Europe in
which there is an unequivocal consensus on what constitutes an ‘unsound
mind’. However, the Vo v. France language suggests the Court is only waiting
for Europe to agree on a definition of life.
Vo v. France dealt with a mother losing her unborn child because of doctor’s
error necessitating a therapeutic abortion. Vo wanted the doctor charged
with unintentional homicide.
84
85
Vo v. France 2004, par. 75
Vo v. France, p. 82
25 Jan Paternotte – The Margin of Appreciation under fire Many other right to life cases dealt with the opposite story: applicants who
wanted the right to life not to include unborn fetuses. The 2010 case A, B
and C v. Ireland, of three anonymous Irish women, was widely anticipated as
a possible European edition of Roe v. Wade, the United States Supreme
Court decision which made abortion legal in all fifty U.S. states.86 These
hopes were partly fuelled by the fact that the Court in the case of Tysiac v.
Poland had departed somewhat from its non-interference policy with
abortion legislation. Tysiac was a woman pregnant of her third child and on
her way to losing eyesight. Although the pregnancy was in no direct relation
to her eyesight, Poland should have protected her private life (Article 8) by
helping her find legal ways to obtain the right to have an abortion.87 A, B
and C did not end up to be the watershed moment some expected, however,
as the Court was quick to point to the ‘moral and ethical values’ involved
and consequently invoked the margin of appreciation.88
The famous cases show that the margin of appreciation has made its way
into Article 2 cases. Although the right to life is supposed to be absolute, the
Court leaves states wide discretion to determine the commencement of life.
The fact the Court invokes ‘moral and ethical values’ to allow for a wide
margin is reminiscent of the ‘public morals’ in personal freedoms cases.
1.5.e The margins terrae incognitae: 2. Torture, inhuman and degrading
treatment
Until the 21st century, Article 3 cases have not seen the margin of
appreciation appear in its jurisprudence. However, in some cases the Court
has started to allude to the margin of appreciation. In the case of M.C. v.
Bulgaria a 14-year old Bulgarian girl and her mother had seen their
proceedings against two alleged rapists of the girl fail in three instances in
domestic courts. The reason her case failed was the fact she had no
physical traces to prove she resisted the advances of the two men. When
considering the merits, the Court stated:
“In respect of the means to ensure adequate protection against rape, States
undoubtedly enjoy a wide margin of appreciation. In particular, perceptions of
a cultural nature, local circumstances and traditional approaches are to be
taken into account.”89
Thus, referring to the wide margin of appreciation the Bulgarian girl’s case
also failed in Strasbourg. In other Article 3 cases the Court has sometimes
invoked the margin of appreciation, but this is usually to be understood as
reading Article 3 in relation to the
Calt, S.K., ‘A., B. & C v. Ireland: ‘Europe’s Roe v. Wade?’?’, Lewis & Clark Law
Review, Vol. 14, No.3, p., 1189, 2010
87 Calt, p. 1212-1216
88 A., B. and C. v. Ireland 2010, par. 185
89 M.C. v. Bulgaria 2003, par. 154
86
26 “manner in which they conform to their Convention obligations […] provided
that some effective remedy exists to deal with individual complaints concerning
inhuman and degrading treatment.”90
Remarkably, both the right to life and the inhuman and degrading treatment
cases are entirely excluded from the quite lenghtly list of case law the
Council of Europe lists in its description of the history of the margin of
appreciation. This suggests the rare invocation of the margin of appreciation
in defining what rape is, and perhaps also in defining what life is, should be
regarded as a faux pas.91 That would be helpful, as the phrase ‘margin of
appreciation’ is far from indispensable when the Court defines what
constitutes rape or what constitutes life. On the other hand, the extended
use of the margin of appreciation creates confusion as the meaning of the
legal concept.
1.6. The three margins: different emanations of the same phrase
What we have seen is that the European Court has developed three different
emanations of the margin of appreciation. The three emanations are not
entirely distinct, but do cause much confusion about the legal concept.
The first emanation is what I call the maximum deference, the margin of
appreciation afforded to the state in Article 15 cases. Once the Court has
established there is a public emergency, the state will be allowed a
significant leeway in determining which derogations of convention freedoms
have to be put in place. The Court applies a clear two-stage test: firstly it will
judge whether a state was right to invoke Article 15. If so, the state will then
be allowed maximum deference. The Court will in principle accept that the
Government has acted in good faith, and only manifestly unreasonable
derogations are considered a breach of the Convention.
Maximum deference still does not mean states can ignore the Convention in
cases of public emergency, as the Court does scrutinize the necessity and
proportionality of specific derogations. In practice however only gross
negligence by states (which includes their national courts) has led to
Strasbourg scrutiny in Article 15 cases, which makes full deference an apt
classification, as these cases have clearly shown an intrinsic limit of
intensity of the review of the European Court.92
What makes the maximum deference stand apart is the clear structure the
Court applies. By first identifying the width of the margin of appreciation
and subsequently performing either a marginal or stringent review the way
Z. and others v. United Kingdom 2001
Council of Europe, ‘The margin of appreciation: introduction’:
http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ECHR/Paper2_en.a
sp
92 This full deference margin of appreciation resembles the margin of appreciation
as a structural concept, which is how Letsas defined it, p.
90
91
27 Jan Paternotte – The Margin of Appreciation under fire the Court operates is relatively consistent. As this thesis will discuss later, it
is not surprising many governments prefer to see this very wide discretion
applied to all Convention Articles.
The second emanation is norm interpretation. Generally, this concerns the
margin of appreciation in its purest form: the margin of appreciation states
enjoy in interpreting the Convention freedoms in relation to their
accommodation clauses. States do not enjoy full appreciation with regard to
these freedoms, but can derogate these freedoms to a certain extent. This
leeway created by the ECHR has translated in a grey area just above the
bare minimum of human rights protection.
Norm interpretation is what the Court performs when a Convention freedom
is not absolute, but can be derogated under specific circumstances.
Therefore, this margin can be influenced by the aim of the derogation, the
public interest involved and the European consensus on the matter, or lack
thereof.93
Because of the various factors involved, this weighing and balancing can get
complicated. Interaction between aspects like the European consensus
seems to go both ways: a broad European consensus can imply a more
narrow margin of appreciation and thus stricter scrutiny of a state’s actions.
On the other hand, the ‘fundamentality’ of a Convention right can also cause
a margin to narrow, and then the European consensus can play a role in the
judicial scrutiny itself.94 This hybrid nature of the margin of appreciation in
norm interpretation makes it an easy target for criticism. Letsas
distinguished the structural concept of the margin of appreciation and the
substantive concept of the margin of appreciation. The non-absoluteness of
the Convention freedoms is key to the second emanation:
“[The] non-absoluteness of the Convention freedoms [is] the main idea behind
the substantive concept of the margin of appreciation.”95
What Letsas means by ‘substantive concept’ is that this margin of
appreciation is not a part of the structure of a judgment, but a part of the
whole weighing and balancing exercise performed by the Court. The
structural concept is how the Court approaches Article 15 cases: first
declaring the width of the margin and subsequently performing a lenient or a
strict test, in accordance with the width of the margin.
Commentators identify several factors. Most agree however that the Court
invoked the consensus and the fundamentality of the right in question more often
than others. Category B factors include: Nature of Duty incumbent on the state and
surrounding circumstances. Ref. Brauch, p. 127
94 Brauch, p. 127
95 Letsas, G., ‘Two concepts of the margin of appreciation’, in Oxford Journal of
Legal Studies, Vol. 26, No. 4 (2006), p. 711
93
28 The third emanation is norm definition. This is the meaning given to the
margin of appreciation in cases where the Court refrains from defining the
very wording of the Convention. The Court has often invoked this judicial
restraint in right to life, due process and deprivation of liberty cases. These
Convention articles are supposed to be absolute: no accommodation for
derogation from them is provided in the text of the ECHR. In many cases one
can identify a ‘dotted line’ between norm definition and norm interpretation,
as one word can lead to many interpretations and the Court has invoked
several key concepts of norm interpretation when dealing with a definition
matter, including ‘European consensus’ and ‘legitimate aim’. Examples are
the Article 3 case of a Bulgarian girl who saw her complaint fail because of a
lack of European consensus on what constitutes rape.
The Court invoked the European consensus in cases for which the
convention Articles are absolute: no indications of a room for maneuver is
provided in the text of the Convention. Therefore, the room for maneuver lies
in the definition of the text.
The difference between norm interpretation and norm definition comes down
to the difference between the extent to which the ECHR applies and the very
definition of the concepts stemming from the ECHR.
Prima facie one may deem these differences to be superfluous, for they
simply conclude the margin is about the ‘elbow room’ or ‘maneuvering room’
afforded to the state once they are endowed with the task of protecting the
Convention freedoms.96 As this thesis will discuss, the ‘breathing’ room is
probably what concerns politicians most, and therefore the margin of
appreciation can be easily reduced to this integrated definition: room for
maneuver.
What appears lacking in the jurisprudence except for the Article 15 cases is
a clear test. The Court does not consistently apply a number of steps in
order to identify the applicable margin, nor does it apply a consistent test in
those cases in which the Court does start with identifying a margin. It all
seems to come down to weighing and balancing, along the lines described in
the development of the margin of appreciation in the various Articles of the
ECHR. Kratochvil has proposed a change: the Court should always starts off
with identifying the width of the margin of appreciation, and consequently
either limit itself to apply the test of ‘manifestly without reasonable
foundation’ or apply a full balancing analysis in cases of a narrow margin of
appreciation.97 In the next chapter we will discuss the criticism in more
detail, as well as the problems which may arise if the Court does define a
blueprint for the application of the margin of appreciation.
96
97
Yourow, p.13
Kratochvil, p.352-353
29 Jan Paternotte – The Margin of Appreciation under fire 2. The modern margin: a Court gone wild?
Over the years, the European Court’s margin of appreciation doctrine has
met with abundant criticism from both inside the Court and from human
rights law scholars. The past decade has added politicians to this group,
some even coming up with new judicial principles to overturn long-standing
Court practices. With the margin of appreciation invoked in 1373 cases, the
Court has gone a long way from Lawless, and it seems every case had only
added to the complexity of reviewing with a margin.98
2.1 Swimming against the tide: the Court’s production
On one aspect everyone is in agreement: the judges are not sitting idly.
When for decades one could spend a couple weeks in Strasbourg without
seeing the Court handed down a single judgment, the Court today spills
cases like a fountain. In total, the Court has ruled in a grand total of 827
cases between 1959 and 1998. In 2009 alone, the count was 1625. 91% of
the Court’s judgments since its creation have been delivered between 1998
and 2011. Almost every day the Court hands down several new judgments.
Fact is that the Court still struggles to cope with the influx of cases, as more
and more Europeans, especially from new CoE member states, have lodged
complaints with the Court. At its peak 2011, the backlog of pending cases
reached 150.000.99 More than half of these complaints were filed against
Russia, Turkey, Italy or Romania.100 101
Thanks to the Protocol 14 reforms which entered into force in 2010, the
Court managed to ramp up their production: plainly inadmissible
applications can be discarded by a single judge, three judge committees can
decide on the merits of clearly well-founded cases and applicants can only
file complaints if they have suffered significant disadvantage. These
measures have put a brake on the influx of new cases and the Court in a
position to produce more judgments on merits.102
Table 1
Human Rights Watch web article, ‘Council of Europe: shelve risky court reforms’,
April 17, 2012: http://www.hrw.org/news/2012/04/17/council-europe-shelverisky-court-reforms
100 HUDOC
101 Council of Europe, ‘The ECtHR in facts and figures 2011’:
http://www.echr.coe.int/NR/rdonlyres/C99DDB86-EB23-4E12-BCDAD19B63A935AD/0/FAITS_CHIFFRES_EN_JAN2012_VERSION_WEB.pdf
102 Council of Europe, ‘Protocol 14: the reform of the European Court of Human
Rights’: http://www.echr.coe.int/NR/rdonlyres/57211BCC-C88A-43C6-B540AF0642E81D2C/0/CPProtocole14EN.pdf
98
99
30 Phrase
Margin of appreciation
Wide margin of appreciation
Certain margin of appreciation
Narrow margin of appreciation
Power of appreciation
Margin of discretion
A certain discretion
Appearance in number of cases
1373
480
631
39
263
78
78
Table 1: Invocations of the margin of appreciation in ECtHR jurisprudence103
2.2 The margin in the haystack: the battle between quantity and
consistency
As the most productive international court in human history, the challenge
of staying consistent becomes harder, as even fierce Court critics are quick
to admit: “With the surreal amount of cases that the Court processes it is
probably too much to expect absolute consistency”.104 As shown in Table 1,
the Court has invoked the margin of appreciation in a total of 1373 cases. In
addition, interchangeable phraseology like the power of appreciation can be
found in 419 more cases.
The numbers underscore the major consistency challenges for the Court.
Consistency, however, is the only thing apart from the Convention text that
can guide contracting states when interpreting the Convention. Fuller
argued that consistency in decision making based on rules is fundamental to
any legal system.105 O’Donnell observed in 1982:
“A central problem is to determine a principled basis on which this distinction
[between a wide and a narrow margin] can be made so that the Convention
may be enforced without infringing upon legitimate activities of
governments.”106
As was observed earlier, the Court is always cautious enough to restrict itself
to ex post adjudication. The U.S. Supreme Court on the other hand is
credited with (and critiqued for) being the ultimate organ to define the law of
the land:
“The U.S. Supreme Court has developed a fairly clear set of standards
governing the extent of the deference to be granted, but the European Court
The table lists the number of appearances of the specific phrase in the
jurisprudence of the ECtHR. The appearances include references other case-law.
The 1373 references to the margin of appreciation include the references to the
wide, certain and narrow margin of appreciation. Table is construed by the author.
104 Kratochvil, p.357
105 Fuller, ‘The Morality of Law’, Yale University Press, New Haven, 1969, p.33-41,
quoted in Kratochvil, p.352
106 O’Donnell, p.475
103
31 Jan Paternotte – The Margin of Appreciation under fire has not. It is this absence of standards that is the target of much of the
criticism.”107
Of course, in a number of cases, the de facto result of a judgment is clear
enough and does have ramifications for all the contracting states. An
example is the series of cases against the United Kingdom dealing with the
new gender identity of post-operation transsexuals.108 109 Another example
is A, B and C v. Ireland.110 These cases have established that, for now, a
state is required to provide a new birth certificate upon request to postoperation transsexuals, and that the right to private life does not stop a state
from banning abortions when the life of the mother is not in danger. In most
cases however, especially Article 5 and 6 cases, the standard always
depends on the circumstances and one cannot predict with anything close to
certainty how the Court will rule. On the one hand this in inherent to the
‘complaint nature’ of the European Court, which requires the Court to asses
each case individually, on the other hand it leaves us with a lack of
predictability.
Regent University Law Dean Jeffrey Brauch wrote a blistering denunciation
of the lack of predictability in the ECtHR case law in 2005, calling the
margin of appreciation a ‘threat to the rule of law’.111 According to Brauch,
the rule of law requires ‘an evenhanded and consistent application of the
law’:
“As such, it prefers the ‘keeping of promises’ to the promotion of ends”112
Brauch identifies consistency and predictability of the behavior of courts as
core requirements of the rule of law. He went on to identify a sheer lack of
predictability in the case-law of the European Court, and suggests the
reason for some unexpected judgments is a social agenda the Court
pursues.113
Other scholars have identified a developing habit of the Court in paying lipservice to the margin of appreciation by only referring to the margin in the
conclusion of a case in the conclusion. This is especially true in 2009 and
2010114 , but the first example of a curious last minute mention of the margin
was Young, James and Webster in 1981: “Even making due allowance for a
State’s ‘margin of appreciation’ the Court thus finds that the restrictions
complained of were not ‘necessary in a democratic society’”.115 The case does
107
108
109
110
111
112
113
114
115
O’Donnell, p.479
Rees v. United Kingdom 1986; Sheffield and Horsham v. United Kingdom 1998
Letsas, p. 729
A., B., and C. v. Ireland
Brauch, p.113
Brauch, p.123
Brauch, p.147
Kratochvil, p.342-343
Young, James and Webster v. United Kingdom, par. 65
32 not provide any clue as to how due allowance was made for a margin of
appreciation
This chapter will discuss if the criticism indicates a shrinking margin of
appreciation. The question is if the recent invocations point to another level
of review, to a point at which states can be said to enjoy less ‘elbow room’.
2.3 Where in the world is Europe? The evolution of the European
consensus
The European consensus is key to many landmark decisions. Some scholars
are happy to define the margin of appreciation simply as a question of
whether a European consensus exists: “[The margin of appreciation] applies
when there is no European consensus on what minimum standards consist
of.” 116
Still, the European consensus has no strict demarcations. It is not possible
to find exact parameters of what constitutes a European consensus. A host
of indicators has come into play in judging whether a European consensus
exists or does not (yet) exist. Four remarkable developments in the evidence
of a European consensus catch the eye.
2.3.a From legal order to (also) social order
Ever since Handyside the matter of ‘European Consensus’ looms over
judgments, as long as they remain within the domain of norm interpretation.
In Article 15 cases like A and others v. United Kingdom the European
consensus is not supposed to play a role: even though the United Kingdom
was the only CoE state to have invoked Article 15 in the wake of the 9/11
attacks, the margin of appreciation in the context of Article 15 protected the
states’ right to enjoy wide latitude in defining a public emergency
threatening the life of the nation.
In Handyside the Court seems to have invoked the lack of consensus in
domestic law to justify the UK’s banning the Little Red Book: “It is not
possible to find in the domestic law of the various Contracting States a uniform
European conception of morals. The view taken by their respective laws of the
requirements of morals varies 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.”117
Handyside clearly points to the domestic law of the member states, not to
domestic practice. After all, every CoE member state save England allowed
Klug, F., ‘A Bill of Rights: do we need one or do we already have one?’, in LSE
Law, Society and Economy Working Papers 2/2007p. 17
117 Handyside v. United Kingdom, par. 48
116
33 Jan Paternotte – The Margin of Appreciation under fire circulation of the Little Red Book, as did Scotland and Northern Ireland.118
This approach has been reasonably consistently applied in most seminal
cases dealing with morals. In Frette v. France, Frette complained of the fact
that he, being a homosexual, was not eligible for adopting a child. The Court
found that although few contracting states opposed gay adoption, it could
not be said most states allowed for it119:
“it is not possible to find in the legal and social orders of the Contracting States
uniform principles on these social issues on which opinions within a democratic
society may reasonably differ widely.”120
If Richard Handyside were alive today, he would probably invoke the Frette
case and point to the fact that in the social order of the CoE states his ‘little
red book’ was widely accepted, indicating a ‘uniform principle’ that is the
freedom of expression. And Richard Handyside would be right: the fact the
Court started of with strictly defining the European consensus as made up
of domestic law, in the 21st century the domestic social order is at equal
footing. A marked decrease of the margin of appreciation, for member states
can much more easily control their legal order as against their social order.
2.3.b From consensus in domestic law to ‘legislative trends’
Further examples of an enhanced use of the European consensus are the
UK’s transsexual birth certificate cases mentioned earlier. In four succeeding
cases (1986, 1990, 1998 and 2002) the Court denied the applicants claim in
the first three cases, but warned the UK for the evolving European
consensus: “there is an increased social acceptance of transsexualism and an
increased recognition of the problems which post-operative transsexuals
encounter. Even if it finds no breach of Article 8 in this case, the Court
reiterates that this area needs to be kept under review by Contracting
States.”121
In the almost-identical cases of Goodwin v. United Kingdom and I v. United
Kingdom the Court ended up finding a full-fledged European consensus of
fully recognizing the new gender status of post-operation transsexuals.
Therefore, the Court finally required the British to issue new birth
certificates.
In this case, the ‘legislative trend’ in the direction of full recognition of the
new gender of transsexuals was not enough. The transsexuals had to wait
for a fully matured European consensus to emerge before the Court declared
a narrow margin of appreciation.
This judgment is compared by Brauch to the Smith and Grady case. In this
118
119
120
121
Handyside v. United Kingdom, par. 54
Letsas, p.728
Frette v. France 2002, par. 41
Sheffield and Horsham v. United Kingdom 1998, par. 60
34 case the discharge of two gay Royal Navy sailors because of their
homosexuality was found to be in breach of Article 8. The Court referred to
the “consistently developing views and associated legal changes to the
domestic laws of Contracting states”.122 Surely, ‘developing views’ are not the
same as a ‘European consensus in domestic law’, so the gay sailors benefited
from the trend while the transsexuals had to wait for consensus in domestic
law. Brauch called this ‘imprecise, unpredictable and arbitrary’.123
2.3.c From a self-evident consensus to a Tour d’Europe
Another feature in which Handyside foreshadowed many judgments is the
fact the Court does not undertake to support its claim of a non-existent
European consensus. “The Court and Commission have not specified what
percentage of the Contracting States must alter their laws before a rightenhancing norm will achieve consensus status. […] Rather, the tribunals speak
in vague generalities, […] referring to ‘developments and commonly accepted
standards’124 and ‘modern trends’125 ”, observed Helfer in 1993.126 Discussing
a dissenting opinion in Sunday Times , Yourow concluded: “Non-consensus is
assumed in the same fashion in which the majority states its own
unsubstantiated conclusions on the consensus issue.”127 Indeed, in many
early cases the Court simply marks the European consensus and goes on to
reach a decision, not bothering to substantiate their consensus claim.
However, in more and more modern cases a quick-scan or even a study of
the domestic law of the contracting states is included in the judgment. In
the controversial ‘definition of rape’ case M.C. v. Bulgaria (2003) the Court
provided an overview of domestic law regarding the definition of rape.128 In
the landmark euthanasia case Pretty v. UK (2002) the Court explains that the
Netherlands is the only country to have included euthanasia in the criminal
code.129 In Vo v. France (2004) the Court mentions the three European
countries which have detailed the act of unintentionally but fatally damaging
a fetus in their domestic law.130 In Stec and others v. United Kingdom (2006),
dealing with discrimination in the pension age of men and women, the Court
lists the contracting states with no discrimination as well as the countries
distinguishing between men and women.131 In Hirst v. United Kingdom no. 2
Smith and Grady v. United Kingdom 1999, par. 104
Brauch, p. 137-140
124 Tyrer v. United Kingdom 1978, par. 31
125 Judge Bernhardt, dissenting opinion in Ozturk v. Germany 1984, par. 2
126 Helfer, L.R. ‘’Consensus, Coherence and the European Convention on Human
Rights’, Cornell International Law Journal Vol. 26 1993, p.
127 Yourow, p. 117
128 M.C. v. Bulgaria 2003, section 3.A: ‘Provisions on rape in the domestic law of
some European countries’
129 Pretty v. United Kingdom 2002, par. 48
130 Vo v. France 2004, par. 41
131 Stec and others v. United Kingdom 2006, par. 36-37
122
123
35 Jan Paternotte – The Margin of Appreciation under fire (2005) the Court has collected detailed domestic law information on voting
rights for prisoners in all contracting states.132
Such a ‘quick-scan’ was still lacking in the 1998 transsexuals case Sheffield
and Horsham v. United Kingdom and the 1999 case Smith and Grady v.
United Kingdom, although the intervening parties detailed the domestic law
in Europe and elsewhere.133 134 It seems the Court has mended its ways, and
today takes pains to substantiate a European consensus, or the lack thereof.
2.3.d A (common)wealth of inspiration
In fact, the search for a ‘European consensus’ in Handyside was already a
departure from earlier case-law. In Belgian Linguistics v. Belgium the Court
reached their conclusion ‘regard being had to the principles which normally
prevail in democratic societies’.135 The ‘principles which normally prevail in
democratic societies’ changed into the ‘European consensus’ in the
Handyside case. From that point on, not all democratic societies mattered,
just the ones in the Council of Europe.
Oddly, in 2002 in Goodwin Europe seemed to be back in the process of
enlargement, as the fourth section of the judgment was entitled: ‘The state of
any European and international consensus’.136 The Court found a
“continuing international trend towards legal recognition. […] in Australia and
New Zealand, it appears that the courts are moving away from the biological
birth view of sex…”.137 138
In this case, the Court for no apparent reason invoked Australia and New
Zealand in the merits. By 2012, referring to overseas domestic law has
become commonplace. In a case on the legal status of embryos, the Court
also drew attention to the ‘European and international consensus’ and in
Pretty v. UK the Court mentioned that the unlawfulness of consensual killing
was also reflected in ‘other jurisdictions outside Europe’.139140 In Hirst v.
United Kingdom (no.2) the Court spent several paragraphs discussing
Canadian and South African case-law on the matter of voting rights for
prisoners.141
Hirst v. United Kingdom no.2 2005, par. 33-34
Sheffield and Horsham v. United Kingdom 1998
134 Smith and Grady v. United Kingdom 1999, par. 58
135 Relating to certain aspects of the laws on the use of languages in education in
Belgium v. Belgium, par. 10
136 Christine Goodwin v. United Kingdom 2002, section title 4
137 Brauch, p.144
138 Christine Goodwin v. United Kingdom 2002, par. 84-85
139 Evans v. United Kingdom 2007, par.59
140 Pretty v. United Kingdom 2002, par. 48
141 Hirst v. United Kingdom no.2 2005, par. 35-39
132
133
36 Also, in many cases, applicants or intervening third parties point to practices
in non-European states, and again the Anglo-Saxon world is an important
source of inspiration for them142 , partly because those common law
countries provide a different perspective on judicial principles like due
process. An example is Kyprianou v. Cyprus, where Cyprus defended its
comtempt of court common law, stating it mirrored the US, Canada,
Australia, New Zealand and South Africa.143 Abdullah Ocalan invoked U.S.,
New Zealand and South African law in his case against Turkey.144
Brauch pointed at the sudden appearance of Australia in the merits of a
ECtHR case:
“Apparently, the United Kingdom and other countries within the Council of
Europe should have been monitoring legal trends in Australia and New
Zealand to determine their obligations under the European Convention.”145
It is remarkable the ECtHR has a habit of occasionally referring to domestic
law of (primarily) Anglo-Saxon states. Such referrals are usually reserved for
cases dealing with the development of morals. The Court seems to believe
countries Canada and Australia can serve as indicators of shifting moral
values in democratic societies in general, and is happy to make ‘democratic
societies’ part of a European consensus. Still, if this is the fact the relevance
of the British Commonwealth nations for the Council of Europe has never
been supported by evidence, nor has the Court ever clearly articulated the
role they envisage for these countries. In sum, the Court is guilty of making
the concept of consensus mirky by including the antipodes from Down
Under in what once used to be the European consensus.
2.4 Equal but separate? The alleged randomness of rights
hierarchy
The European consensus is sometimes confused with the margin of
appreciation itself, rather than a factor in the margin of appreciation. This
has not happened to another factor playing a role in a margin of appreciation
analysis: the fundamentality of a specific right.
In the Sunday Times case the Court indicated that the freedom of the press
as a subcategory of the freedom of expression carries more weight than the
freedom to distribute schoolbooks in Handyside. This first emanation of the
‘fundamentality’ of the right within the area of personal freedoms gave rise to
many studies looking for ‘specially protected rights’ within the ECtHR
jurisprudence. 146
‘similar pattern in Canada, South Africa, Israel, Australia and New Zealand’,
Liberty’s third party intervention in Christine Goodwin v. United Kingdom, par. 56
143 Kyprianou v. Cyprus 2005, par. 66
144 Ocalan v. Turkey 2005, par. 79
145 Brauch, p.145
146 Yourow, p. 189-190
142
37 Jan Paternotte – The Margin of Appreciation under fire The difference between the fundamentality of a right and the existence of a
European consensus is sometimes blurry, but nonetheless present. Another
example is the Dudgeon case, discussed earlier. Like Handyside, this case
concerned morals, and the Court admitted morals implied a wide margin of
appreciation.147 However: “The present case concerns a most intimate aspect
of private life. Accordingly, there must exist particularly serious reasons before
interferences on the part of public authorities can be legitimate for the purposes
of Art. 8(2)”.148
The Dudgeon case therefore is distinguished because of the wide margin
attributed thanks to the legitimate aim of protecting morals, while at the
same time the UK faces a particularly serious test because of the
fundamentality of the right in question. Jeffrey Brauch believes the ‘social
agenda’ of the Court is at work here. The pointed to the case of Smith and
Grady, in which again the UK wanted to protect ‘morals’. Suddenly mention
was made of a ‘certain margin of appreciation’, rather than the wide margin
of appreciation which we have come to expect in cases dealing with public
morals. Brauch believes this is evidence of a Court happy to interfere with
the evolution of moral values in a state.149 150 Brauch fails to mention the
fact the Court invoked the ‘certain margin’ in connotation with ‘pursuance of
a national security aim’, for which the Court tends to adopt a more lenient
attitude. The critique of the Court is this specific case seems a bit unfair,
especially because the reasoning of the United Kingdom itself was decidedly
different from other public morals cases.151 Brauch concluded:
“The adjectives, unfortunately, substitute for any legal analysis about why the
United Kingdom should not have a wide margin to protect morals in this
case.”152
Brauch finds support for the randomness claim from inside the Court. In a
dissenting opinion in Z. v. Finland judge De Meyer stated: “The empty
phrases concerning the state's margin of appreciation-repeated in the court's
judgments for too long already-are unnecessary circumlocutions, serving only
to indicate abstrusely that the States may do anything the Court does not
consider incompatible with human rights.”153
Kratochvil especially takes issue with cases in which the Court, because of
the specific nature of the right in question, articulates a wide margin but
goes on to strictly scrutinize the facts of the case.154 In A v. Norway the
Court finds a wide margin of appreciation for states to balance the freedom
147
148
149
150
151
152
153
154
Dudgeon v. United Kingdom 1981, par. 52
Ibid.
Brauch, p.148
Smith and Grady v. United Kingdom 1999, par.89
Ibid.
Brauch, p.148
Z. v. Finland 1997, partly dissenting opinion of Judge J. De Meyer, Par. III
Kratochvil, p.347
38 of the press with the protection of privacy. Still, the Court performs a full
balancing exercise, arguing that there was no reasonable relationship of
proportionality between the interests relied on by domestic courts in
safeguarding Faedrelandsvennen’s freedom of expression and those of the
applicant.155156
In S.H. and Others v. Austria the Court declared a wide margin but in the
analysis used two phrases more typical for a narrow margin:
“the disputed margin cannot be considered the only or least intrusive means of
achieving the aim pursued”,
and,
“it required, in the Court’s view, particularly persuasive arguments by the
Government”. 157 158
This example of a wide margin and a full analysis is referred to by Kratochvil
as ‘ad-hockery’.159
2.5. In sum: a shrinking margin?
Many scholars have complained that over the years the Court has gotten rid
of a once modest attitude and today is using the same language and the
same legal concept (margin of appreciation) to reach wholly different
conclusions. 160 Some also criticize the Court of showing of exercising a
social agenda.161
However, the development of the Court’s behavior is more hybrid than the
fiercest critics suggest.
What is true is that in more and more cases dealing with morality, the Court
decides to declare a European consensus and consequently requires states
to incorporate that consensus in its domestic law. This has happened with
amongst other issues homosexuality, recognition of transsexual identity, the
obligation of states to inform women of risks involved in pregnancies, gays in
the military and prisoner voting rights. By not having a clear test but instead
invoking a long list of factors from its judicial toolkit the Court has served its
critics well. Invoking ‘legislative trends’ rather than actual legislation and
calling in Australia’s domestic laws means by definition states enjoy less
sovereignty and less predictability of the ECtHR rulings.
155
156
157
158
159
160
161
Kratochvil, p.339-340
A v. Norway 2009, par. 74
S.H. and Others v. Austria 2010, par.69
Ibid., par.76
Kratochvil, p.347, p.351
Helfer, p.134-136
Brauch, p.147
39 Jan Paternotte – The Margin of Appreciation under fire In the past decade, both scholars and politicians have stepped up their
criticism of the margin of appreciation in the European Court’s
jurisprudence. Scholars have identified the vastly different implications the
margin has for comparable cases. Indeed the Court is part of the problem, by
creating yardsticks like the European consensus, without explicitly
overturning the precedent deciding against the very European consensus
(the transsexual rights cases), or in cases where no European consensus can
be said to exist (prisoner voting rights), or without giving any guidance as to
how a European consensus must be deduced.
Yet at the same time the Court makes more of an effort to substantiate the
factors involved in a judgment. Although the outcome is not always decisive,
the rulings today always include at least an overview of European domestic
law on the matter. What is more is the fact that with regard to some very
fundamental Convention obligations the Court has allowed states elbow
room the writers of the Convention did not ask for. The fact that the Court in
M.C. v. Bulgaria left the definition of what rape is to the state is a very liberal
interpretation of the language of Article 3, especially considering the fact
that derogation from Article 3 is expressly excluded in the general derogation
Article 15.
The Court invited criticism because a clear ‘test’ associated with the margin
of appreciation is still lacking. Many scholars like Brauch and Letsas have
submitted a plea for a more comprehensive judicial structure to apply the
margin of appreciation.162 163 164 165 . However, this does not mean the margin
of appreciation is shrinking per se. It is only evidence of the increasingly
complex nature of the work of the European Court, and the fact it has opted
for a vague and thus flexible concept to guide the evolution of European
human rights jurisprudence.
It is questionable if the solutions which have been put forward by scholars
do not create new problems themselves. In performing its unique
international complaint-based review mechanism the Court always has to
maneuver between Scylla and Charybdis. Scylla in this sense is a situation
in which the Court has assumed the role of a Court of Fourth Instance
which scrutinizes every single case to the maximum extent and does not
leave a single word in the ECHR undefined. Charybdis is the option of
restricting itself to only the most manifestly unreasonable infringements of
Convention obligations.
If the Court falls victim to Scylla, it is destined to lose support in the CoE,
and as a result in the future its judgments will fail to sway state behavior in
another direction. If the Court comes to close to Charybdis, it would lose the
significance it has had in emancipating European law.
162
163
164
165
Helfer, p. 155
Kratochvil, p.354
Brauch, p.150
Yourow, p.196-197
40 A clearly defined test to guide the ECtHR would force the Court in a corset. If
an appeal to the protection of morals automatically triggers a maximum
deference, the Court could have never ruled against the homophobic
Northern Irish domestic law nor could it have allowed gays to serve openly in
the Royal Navy. From a 2012 perspective, these two rulings only represent
the entrenched majority values of today, and many would consider it
uncivilized if the United Kingdom still had those laws in place.
The problem is that the margin of appreciation pretends to be more than
what it is. The Court endeavors to be, above all, reasonable. Reasonableness
is a vague legal concept, despised by constructionists fiercely opposed to a
system in which judges apply their own wisdom to the cases before them.
However, with a track record of 1373 margin of appreciation cases the Court
has, in general, been reasonable. And because of that, Europe has changed
for the better.
41 Jan Paternotte – The Margin of Appreciation under fire 3. The argument for a wider margin
We will now turn to London, for many years the centre of fierce resistance to
the European Court of Human Rights. Over the years, a remarkable number
of landmark cases have seen the United Kingdom on the wrong side of the
ECHR, including Sunday Times, Christine Goodwin Smith and Grady and
Hirst no2. In particular the Hirst and Abu Qatada cases have angered a
majority of the House of Commons. When looking for who’s to blame for the
British record, not everyone in Britain is inclined to look in the mirror.
This research will identify the legal nature of the criticism and the two
distinct aspects of Court reform advocated by the British conservative party:
a national approach and a European approach. After examining both
aspects the thesis will analyze whether changes have been brought about
after the Brighton conference.
3.1. The national approach: the Tories and the Bill of Rights
David Cameron did not wait to start thinking about Court reform until he
heard he would become president of the Council of Europe in January 2012.
In June 2006, less than a year after becoming the leader of the Conservative
caucus in the House of Commons, Cameron outlined his philosophy in a
speech to the Centre for Policy Studies.
He directly took on the Human Rights Act (HRA). This Act of Parliament,
which entered into force in 1998 and which was meant to incorporate the
European Convention of Human Rights in British law, thus giving Britain its
very own modern ‘bill of rights’, the first since 1689. It originated in the
governing Labour party’s desire to stem the tide of British cases going to the
European Court of Human Rights by ‘bringing rights home’.166 167 168
According to Cameron, the HRA has failed Britain:
“The Human Rights Act has a […] damaging impact on our ability to protect our
society against terrorism. […]The key factor here is the European Court of
Human Rights judgement in the Chahal case in 1996.”169
Cameron refers to the Chahal case which prevented Britain from deporting
persons considered a risk for public security if the UK cannot ascertain the
security of the individual after deportation. In the judgment, the Court
Straw, J. And Boateng, P., ‘Bringing rights home: Labour’s plan to incorporate
the European Convention of Human Rights into UK Law’, Labour Party, December
1996
167 Klug, p.14
168 Rycroft, T., ‘The rationality of the Conservative Party’s proposal for a British bill
of rights’, UCL Human Rights Review, Vol. 1 2008, Faculty of Laws, University
College London, p.53-55
169 Cameron, D., ‘Balancing freedom and security – a modern British bill of rights’,
Speech to the Centre for Policy Studies, 26 June 2006:
http://www.guardian.co.uk/politics/2006/jun/26/conservatives.constitution
166
42 emphasized the absoluteness of Article 3 and the inherent obligation of
contracting states to protect individuals from Article 3 infringements.
Cameron took issue with the very language of the case:
“The activities of the individual in question, however undesirable or dangerous,
cannot be a material consideration."170
Cameron went on to conclude that the HRA was downright dangerous for
Britain:
“Before the Chahal case, and before the Human Rights Act, if a Home
Secretary had considered a foreign national to be sufficiently dangerous, that
individual could be deported without undue delay. Today, not only can the
individual not be deported. The lengths to which the authorities have to go even
to detain them are so great that many serious suspects are allowed to remain
here at liberty. Think about the message that sends to terrorists and their
supporters around the world.”171
The fact that Cameron attributes all this to the HRA and only indirectly to
the ECtHR is lacking of an explanation.172 However, he also admits:
“But simply removing the Human Rights Act would not solve the problem. We
would still be left with a situation in which terrorist suspects could go to the
European Court - for example to avoid deportation.”173
He went on to conclude Britain needs a German solution:
“In Germany, the existence of the Basic Law - a clearly codified constitutional
document - provides a different solution. The European Court, through what is
known as the ‘margin of appreciation’, tends to defer to any clearly set out
domestic constitutional doctrine. But Britain has neither a reservation against
the ECHR; nor a clearly set out constitutional doctrine, like the Germans.”174
Cameron went on to sketch the idea of a ‘British bill of rights’, which should
shield Britain from an intrusive European Court. The speech got wide press
coverage, as it was the first time since the 1960s that the Conservative party
proposed an overhaul of Britain’s human rights policy.175
In a number of subsequent publications, Cameron further outlines his
critique:
Chahal v. United Kingdom 1996, par. 80
Cameron, D., ‘Balancing freedom and security – a modern British bill of rights’,
Speech to the Centre for Policy Studies, 26 June 2006
172 Rycroft, p.62
173 Cameron, D., ‘Balancing freedom and security – a modern British bill of rights’,
Speech to the Centre for Policy Studies, 26 June 2006
174 Ibid.
175 Rycroft, p.56
170
171
43 Jan Paternotte – The Margin of Appreciation under fire “If MI5 tells the government that a foreign national is […] a danger to national
security, then the Home Secretary should be free to balance the rights of the
suspect with the rights of society […] and proceed with the deportation if
necessary.”176
The Conservative’s Shadow Attorney-General Dominic Grieve added later in
2006:
“Firstly, we could define the Convention in clearer terms, assisting the judiciary
and government in their tasks. Provision for this exists under the ‘margin of
appreciation’.”177
In sum, Cameron says the ECHR does not allow Britain the desired latitude
in fighting terrorism. He specifically points to Article 3 jurisprudence. His
invocation of the margin of appreciation here seems superfluous. Ken
Clarke, a former candidate for the Tory leadership, was particularly fierce in
calling Cameron’s proposals ‘xenophobic’ and ‘legal nonsense’.178
The most relevant observation here is that Cameron focused on a domestic
measure, the ‘bill of rights’, but understood very well that in the end the
European Court would have to change its ways if Britain was indeed to
regain full power over illegal residents who, if deported, have to fear
inhuman treatment. For now, we will examine Cameron’s claim of a
distinction between the way Strasbourg treats Germany and the UK based
on the rigid German constitution.
3.1.a German shield? The concept of a domestically enshrined margin
Cameron’s main pitch in the 2006 speech was that a British home-grown
Bill of Rights would encourage the ECtHR to back off and interfere less with
Britain’s internal affairs.179 The question to be answered is if the German
constitution is indeed a barrier for interference of the ECtHR.
It’s true that the United Kingdom has been the subject of relatively many
European Court verdicts, at least prior to 1998 and in comparison to
Germany. However, in that period before the introduction of the HRA, the
British Courts for domestic human rights protection drew from the Magna
Carta, the 1689 Bill of Rights and the Common Law. 180 One could
reasonably expect countries which have incorporated the ECHR, like the
Cameron, D. In Sunday Times, 12 November 2006, as quoted on ‘Law Essays
UK’: http://www.law-essays-uk.com/resources/sample-essays/english-law/arepublic-as-a-political-system.php
177 Grieve, D. MP ‘Liberty and Community in Britain’, Speech to the Conservative
Liberty Forum, 2nd October 2006
178 Sylvester, R., ‘Has Cameron thought it through or is he just thinking aloud?’,
The Telegraph, 27 June 2006: http://www.telegraph.co.uk/comment/personalview/3625979/Has-Cameron-thought-it-through-or-is-he-just-thinking-aloud.html
179 Klug, p.17
180 Rycroft, p.60
176
44 Netherlands, or countries which have their own Bill of Rights based on the
ECHR, to provide better domestic human rights protection and thus
necessitating less Strasbourg ‘interference’.
LSE Professor and Director of the Centre for the Study of Human Rights
Francesca Klug has become a consistent domestic critic of the Conservative’s
plea for a British bill of rights. Klug has stated that the German
Bundesverfassungsgericht (Constitutional Court) officially regards itself as
superior to the ECtHR, but in practice has never acted on this premise.181
On Cameron’s plea for a wider margin of appreciation, Klug is equally
dismissive:
“The main ‘interference’ Cameron wants freedom from is the prohibition on
deporting foreign nationals to countries where there is a real risk they will be
tortured. […] [However], for as long as we […] are subject to the ECHR, a
domestic Bill of Rights will provide no get out clause from the absolute
prohibition on torture.”182
Klug adds that Germany does not enjoy a different treatment from the side of
the Court and that the margin of appreciation only applies in cases when
there is no consensus between the signatories of the ECHR on what
minimum standards consist of.183 While Klug’s summary of the margin of
appreciation doctrine is an oversimplification, her critique of Cameron’s legal
theories was left unanswered. Cameron nor his fellow conservatives were so
helpful as to point to specific cases in which Germany received a special
treatment from the European Court of Human Rights.184
Still, Klug is not entirely correct in her brusque dismissal of the German
solution. The German Constitutional Court has repeatedly emphasized its
own ultimate authority in the German legal order, as well as the position of
the ECHR as ranking below the German constitution.185
However, this does not automatically amount to a ‘German shield’ against
the ECHR:
“The Bundesverfassungsgericht […] does not make it totally clear whether this
means
that every violation of the constitution suffices to deviate from the Convention,
or whether there must be a violation of fundamental principles of the
Klug, p.17, footnote 82
Klug, p. 17
183 Klug, p.17
184 Society of Conservative Lawyers, ‘A Modern Bill of Rights’:
http://www.conservativelawyers.com/assets/uploads/publications/pdf/A-ModernBill-of-Rights.pdf
185 Beljin, S., ‘Bundesverfassungsgericht on the Status of the European Convention
of Human Rights and ECHR Decisions in the German Legal Order.
Decision of 14 October 2004 – case note’, European Constitutional Law Review, 2005
vol.1, p. 556
181
182
45 Jan Paternotte – The Margin of Appreciation under fire constitution, which of course would leave far less room for manoeuvre.”186
Instead the Bundesverfassungsgericht has awarded the ECHR and the
ECtHR jurisprudence a different special status in German courts:
“The text of the Convention and the case law of the European Court of Human
Rights serve, on the level of constitutional law, as guides to interpretation in
determining the content and scope of fundamental rights and constitutional
principles of the Basic Law, provided that this does not lead to a restriction or
reduction of protection of the individual’s fundamental rights under the Basic
Law – and this the Convention itself does not desire.”187
As Beljin points out, even though the ECHR is considered inferior to German
basic law, the ECHR serves as guide to interpretation of the Basic law.
Normally, law of a higher status would guide the interpretation of law of a
lower status, not the other way around The Bundesverfassungsgericht
explains this curious relation between the ECHR and the Basic Law by
pointing to the Basic Law’s openness to international law.188 Because of this
position in German domestic law, all German courts as well as the
legislature are required to take the ECHR into account. Because of the fact
the Bundesverfassungsgericht requires consistent interpretation of domestic
law with public international law it is even possible to lodge a complaint
against an infringement of the ECHR with German domestic courts.189
It is hard to say whether the German position amounts to a special status in
the ECHR family. As Beljin notes:
“It would be interesting to know whether the practical significance of the
Convention
in Germany is less than in states which assign it a higher ranking.”190
In general, Cameron’s philosophy is not simply the ‘legal nonsense’ his
fellow Conservative Ken Clark called it. The German Constitutional Court
and both the ECtHR and the European Court of Justice have been engaged
in an interesting legal dance around the matter of who’s right in case of a
collision between international law (or community law) and German
constitutional law.
However, to say as Cameron does that European Courts would allow Britain
a wider margin of appreciation when Britain adopts a bill of rights is beyond
understanding. The Chahal case which is the centerpiece of Cameron’s ire
could not be overturned in a legal order which, like the German legal order,
is obliged to take public international law into account.
186
187
188
189
190
Beljin, p.563
Bundesverfassungsgericht (BVerfG), 2 BvR 1481/04 v. 14.10.2004, par. 32
Ibid., par. 33
Beljin, p.562
Beljin, p.557
46 3.1.b Prisoner’s suffrage and the right to get rid
The popular press in Britain and a majority of parliament has two particular
quarrels with the European Court: Hirst v. United Kingdom and Abu Qatada
v. United Kingdom. This paragraph will examine if these cases show anything
remarkable in the light of the margin of appreciation jurisprudence
In Hirst v. United Kingdom the Court declared the Representation of the
People Act of 1983 banning imprisoned Brits from voting incompatible with
the ECHR based on Protocol 1, Article 3 (right to free elections). The case of
Hirst concerned a man sentenced to discretionary life imprisonment for
manslaughter in 1980, taking into account the fact he suffered from a severe
personality disorder.191 With regard to disenfranchising prisoners, the Court
indicated that eighteen countries allowed prisoners to vote without
restriction, thirteen countries barred all prisoners from voting and twelve
more limited the right to vote to a certain extent.192 In this case the margin
of appreciation played a central role. The Court declared a wide margin of
appreciation:
“The Court accepts that this is an area in which a wide margin of appreciation
should be granted to the national legislature in determining whether restrictions
on prisoners’ right to vote can still be justified in modern times and if so how a
fair balance is to be struck.”193
However, the judging on the merits the Court concluded:
“Such a general, automatic and indiscriminate restriction [as the 1983 act] on a
vitally important Convention right must be seen as falling outside any
acceptable margin of appreciation, however wide that margin might be, and as
being incompatible with Article 3 of Protocol No.1.”194
The Court severely criticized the House of Commons for not seeking a
balance between the punishment and the right to vote:
“it cannot be said that there was any substantive debate by members of the
legislature on the continued justification in light of modern-day penal policy
and of current human rights standards for maintaining such a general
restriction on the right of prisoners to vote.”195
What is at least remarkable is the fact that the Court links a wide margin of
appreciation to a detailed scrutiny of parliamentary reasoning. In several
other cases, dealing with Protocol 1 Article 1 (right to property) the Court
191
192
193
194
195
Hirst
Hirst
Hirst
Hirst
Hirst
v.
v.
v.
v.
v.
United
United
United
United
United
Kingdom
Kingdom
Kingdom
Kingdom
Kingdom
no.2
no.2
no.2
no.2
no.2
2005,
2005,
2005,
2005,
2005,
par.12-13
par. 33-34
par.41
par.82
par.79
47 Jan Paternotte – The Margin of Appreciation under fire declared a wide margin of appreciation and applied a ‘manifestly
unreasonable’ test.196 197 By all means Hirst concerned a seminal case, as for
the first time the ECtHR ruled on a ‘blanket ban’.
Still, as Strasbourg jurisprudence on prisoners and voting rights tended to
deny applicant’s their claims198 , it is understandable the United Kingdom
was at least surprised by the scrutiny applied to their Representation of the
People Act.
Turning to the Abu Qatada case we are reminded of David Cameron’s speech
in 2006, in which he chastised the Court for forcing the UK not to deport a
family of Sikhs, including Sikh separatist Chahal in 1996.199 Abu Qatada is a
Jordanian national, described by some in the British press as Osama Bin
Laden’s right-hand man in Europe.200 He was granted asylum in the UK in
1994 on the ground of political persecution 201 , and the Secretary of State
requested his deportation to Jordan in 2005 following a extradition request
by the Jordan government.
However, while in Chahal the Court concluded that deportation of Chahal to
India would give rise to a violation of Article 3,202 in Abu Qatada, the Court
could not establish a possible violation of Article 3. Although torture in
Jordan prisons ‘remain[s] widespread and routine’203 the negotiated
Memorandum Of Understanding between Jordan and the UK regarding
Qatada’s benign treatment offered a strong enough assurance that Qatada
will not suffer degrading treatment.204
Abu Qatada did succeed in having his extradition stopped because of a
potential breach of Artciel 6, based on the ‘flagrant denial of justice’ test, for
the reason evidence obtained by torture could be used against him in
Jordan.205 No mention of the margin of appreciation was made in the merits
of the case, just like in the extradition cases of Saadi v. Italy and Soering v.
United Kingdom. The Court has invoked phraseology like ‘a certain margin of
appreciation’ in the periphery of some Article 3 cases, but never in an
Kratochvil, p.347-350
Stec and Others v. United Kingdom 2006; James and Others v. United Kingdom
1986; Moskal v. Poland 2009; Kozacioglu v. Turkey 2009; Michael Theodossiou Ltd
v. Cyprus 2009
198 H. v. The Netherlands; M.D.U. v. Italy
199 Website International Journal of Refugee Law, ‘Abstract: The European Court of
Human Rights Chahal v. United Kingdom’:
http://ijrl.oxfordjournals.org/content/9/1/86.abstract
200 Huffington Post UK, ‘Abu Qatada, Bin Laden’s ‘Right-Hand Man’, To be released
on bail in days’,: February 6th, 2012:
http://www.huffingtonpost.co.uk/2012/02/06/abu-qatada-to-be-releasedbail_n_1257162.html
201 Othman (Abu Qatada) v. United Kingdom 2012, par.7-8
202 Chahal v. United Kingdom 1996, par.107
203 Othman (Abu Qatada) v. United Kingdom 2012, par.191
204 Ibid., par. 190-198
205 Ibid., par. 258 & 285-286
196
197
48 extradition case.206
Hirst and Abu Qatada are distinct cases in almost every respect, except for
the fact that both have become symbolic of, paraphrasing the tabloid press,
a European bureaucracy meddling with Britain’s internal affairs. In the case
of Hirst the Brits can rightfully say they have met a rare case in which the
Court declares a wide margin of appreciation, cannot submit a convincing
European consensus but still finds a breach of Protocol 1 Article 3.
In respect to Abu Qatada it should suffice to find that the Court has no habit
of invoking the margin of appreciation when judging on the possible breach
of Article 3, 5, 6 and 13.
3.2. From a domestic to a European solution: the slim margin
Five years later David Cameron had become the Prime Minister of the United
Kingdom, and instead of seeking more independence for the UK through a
homegrown bill of rights, he shifted gears and started focusing on his
upcoming role as president of the Council of Europe. A month in this office,
he outlined in a speech in Strasbourg on January 25, 2012 his thoughts on
what should change in the way the ECtHR works in a part of the speech
entitled ‘slim margin of appreciation’:
“At times it has felt to us in national governments that the 'margin of
appreciation' – which allows for different interpretations of the Convention –
has shrunk ... and that not enough account is being taken of democratic
decisions by national parliaments. As the margin of appreciation has shrunk,
so controversy has grown. […] some of it is credible democratic anxiety, as with
the prisoner voting issue.”207
Cameron goes on to propose a change:
“The decision made at a national level should be treated with respect. Another
example of this – and one we can all agree on – is in the area of immigration.
[…] Protecting a country from terrorism is one of the most important tasks for
any government.”208 Note that Cameron suggests the ECtHR at that point
does not treat decisions made at the national level ‘with respect’.
One of the countries providing Cameron with full-throated support was the
Netherlands. In a letter to the Dutch parliament Minister for Justice and
Security Ivo Opstelten detailed the reforms of the margin of appreciation he
Except M.S.S. v. Belgium and Greece 2011, Judge Sajo concurring sect. II;
Cameron, D., ‘Speech on the European Court of Human Rights’, speech to the
Council of Europe, Strasbourg January 25th, 2012:
http://www.guardian.co.uk/law/2012/jan/25/cameron-speech-european-courthuman-rights-full
208 Ibid.
206
207
49 Jan Paternotte – The Margin of Appreciation under fire supported alongside the UK:
“The ECHR is a subsidiary mechanism which performs an addition to the
protection offered on the national level. [Therefore] the Court should leave the
evaluation of evidence and the balancing of different interests entirely to
domestic courts, unless the national courts have acted manifestly
unreasonable.”209
Although manifestly unreasonable is a translation from the Dutch ‘kennelijk
onredelijk’ and could also be translated as ‘apparently’ or ‘evidently’
unreasonable, its phraseology suggests the Court should always allow a
wide margin of appreciation, unless the there are particularly persuasive
arguments not to allow a wide margin, This line of reasoning resembles the
‘good faith’ principle put forward by Ireland in the Lawless case, or what I
refer to as the maximum deference emanation of the margin of appreciation.
It is remarkable the government of a country with such an internationalist
tradition is willing to severely limit the European supervision exercised by
the ECtHR.
3.2a Change on the European level: the Brighton conference
Further evidence of the intentions of the reformist countries could be found
in a leaked ‘Draft Brighton Declaration’, named after the venue of the High
Level Conference in Brighton of April 19 and 20 (2012) where Cameron
planned to introduce Court reforms:
“Each state party enjoys a considerable margin of appreciation in how it
applies and implements the Convention. […] The margin of appreciation
implies, among other things, that it is the responsibility of democraticallyelected national parliaments to decide how to implement the Convention in
legislation, and for independent and impartial national courts and tribunals to
apply the Convention in reasoned judgments. The role of the Court is to review
decisions taken by national authorities to ensure that they are within the
margin of appreciation.”210
And further on:
“The Conference therefore: […] encourages the Court to give great prominence
to these principles (subsidiarity and the margin of appreciation) in its
judgments; concludes that the transparency and accessibility of the principles
of subsidiarity and the margin of appreciation should be enhanced by their
Opstelten, I., ‘Brief van de minister van Veiligheid en Justitie’, vergaderstuk 32
500 V, Den Haag, 3 oktober 2011, p.3
210 ‘Draft Brighton Declaration’, High Level Conference on the Future of the
European Court of Human Rights, 23 February 2012, par. 17:
http://www.guardian.co.uk/law/interactive/2012/feb/28/echr-reform-uk-draft
209
50 express inclusion in the Convention.”211
The language of these draft pieces reflects quite obviously the frustration the
British government has shown in the Hirst and Abu Qatada cases, as well as
to Cameron’s earlier references to ‘democratically-elected parliaments’ and
‘[respect for] decisions taken at the national level’. In the final Brighton
declaration, the language was softened considerably, the reference to
parliaments left out and replaced with language more typical of the Court
than of the British prime minister:
“This reflects that the Convention system is subsidiary to the safeguarding of
human rights at national level and that national authorities are in principle
better placed than an international court to evaluate local needs and conditions.
The margin of appreciation goes hand in hand with supervision under the
Convention system. In this respect, the role of the Court is to review whether
decisions taken by national authorities are compatible with the Convention,
having due regard to the State’s margin of appreciation.”212
Note that ‘hand in hand with European supervision’ already stems from the
Handyside case.213 Interestingly, the proposal in the draft declaration to
codify the margin of appreciation in a preambule to the Convention was kept
in place.214
3.2b The aftermath of Brighton: has the Court responded?
At the time of writing the Brighton declaration is two months old. Still, the
Court has already ruled again in a case dealing with a prisoner demanding
the right to vote. In this case, in which Italy was the defendant state, the UK
intervened and once again invoked the margin of appreciation. In the oral
hearing, UK Attorney General Dominic Grieve reiterated the UK’s belief that
the Court should stay out of the business of judging on Britain’s prisoner
voting rights unless they were held to be ‘manifestly unreasonable’. 215
In Hirst no. 2 the Court refrained from describing which restrictions of
prisoner suffrage would actually be compatible with the Convention,
“leaving it to the legislature to decide on the choice of means for securing the
‘Draft Brighton Declaration’, High Level Conference on the Future of the
European Court of Human Rights, 23 February 2012, par. 19
212 Council of Europe: Brighton Declaration, High Level Conference on the Future of
the European Court of Human Rights, 20 april 2012, par.11:
http://www.coe.int/en/20120419-brighton-declaration/
213 Handyside v. United Kingdom, par. 49
214 Council of Europe: Brighton Declaration, High Level Conference on the Future of
the European Court of Human Rights, 20 april 2012, par.12(b)
215 Rozenberg, J., ‘Will the human rights court throw Britain a lifeline on prisoner
votes?’, The Guardian, 21 May 2012:
http://www.guardian.co.uk/law/2012/may/21/human-rights-court-prisonervotes-britain
211
51 Jan Paternotte – The Margin of Appreciation under fire rights guaranteed by Article 3 of Protocol No. 1”.216
In this case Scoppola v. Italy no. 3, the Court reiterated that not all
restrictions are incompatible with the Convention, and that in Hirst the
Court only attributed incompatibility to a blanket ban:
“The relevant criteria relate solely to whether the measure is applicable
generally, automatically and indiscriminately within the meaning indicated by
the Court.”217 However, “it should be noted that in the Italian system the
measure is applied to individuals convicted of a series of specific offences for
which express provision is made by law”.218
Thus the Court held Italy not to be in breach of Protocol 1 Article 3. Because
of the UK’s intervention, the Cameron government got relief from the
requirement to comply with Protocol 1 Article 3 until 6 months after the
Scoppola no. 3 judgment was handed down, which means the UK will have
to have new prisoner voting legislation in place before 22nd November 2012. 3.3 Conclusion: Has the Margin of Appreciation increased after
Brighton?
The proposals issued by amongst others the British and Dutch Attorneys
General provide for the kind of test that many scholars have proposed over
the years, and which have been discussed earlier. They want the ECtHR to
only rule against the contracting state if the state has acted manifestly
unreasonable, echoing language the Court has sometimes used in cases in
which it had declared a wide margin of appreciation. The states would
benefit from a ubiquitous wide margin of appreciation, as they expect it will
stop the Court from intervening in matters like extraditions and prisoner
voting rights.
By asking the Court to ‘give great prominence’ to the margin of appreciation
and by in the future codifying the concept in a preambule to the ECHR
several member states hope to achieve a change in the Court’s attitude and
indeed more judicial restraint in controversial cases.
It is quite unsure if this will happen. Court president Nicholas Bratza has
vigorously fought against earlier drafts of the Brighton declaration, and the
tone of the text has been softened significantly, most importantly with the
language the Court has introduced in Handyside, the all-important concept
216
217
218
Hirst v. United Kingdom no.2 2005, par. 84
Scoppola v. Italy no.3 2012, par. 99
Scoppola v. Italy no.3 2012, par.105
52 of ‘European supervision.219
The Brighton declaration does not pay any attention to the complex nature
of the various emanations of the margin of appreciation, instead asking to
give the concept ‘great prominence’. What does that mean? As table 1 shows,
in an impressive 1373 cases the Court has invoked the margin of
appreciation, a number which can easily qualify as ‘great prominence’.
Just like the Convention text itself, the ‘great prominence’ phrase in the
declaration leaves it to the Court to do the work of interpreting the text and
decide whether the margin will indeed be given ‘greater prominence’. And if
so, one still doesn’t know if that means the Court will allow more deference
to national courts. The first sign in Scoppola v. Italy is that the Court does
not hesitate to once again explain what is wrong with Britain’s prisoner
voting rights legislation. And even under the looming threat of the UK CoE
presidency, the ECtHR did not allow the extradition of Abu Qatada to
Jordan. The first signs, therefore, do not indicate a strong shift in the margin
of appreciation the Court allows member states.
Based on the significant changes in the Brighton declaration compared to
the intentions of the Court reformists and on the draft text, one cannot
conclude the margin of appreciation has already increased. However, the
Court has always had to strike a balance between European supervision and
continued support for the Convention system through democratic legitimacy.
In a comment made outside the courtroom by a past ECtHR president
Luzius Wildhaber:
“National authorities enjoy an area of discretion which derives from their role in
the expression of the democratic will of the people.”220
It is clear the Court will enter a phase in which it faces more scrutiny from
governments and more oversight from the Council of Minister than ever
before. Western European countries which previously championed the
European supervision exercised by the Court like the Netherlands have
shown a desire for more restraint from the side of Strasbourg. In a hearing
in the Dutch senate Human Rights professor Rick Lawson expressed his
anxiety about this development:
“If the image takes hold that countries like the Netherlands and the United
Kingdom turn their back to the European Court […] the consequences will be
The Independent, ‘Clarke clashes with Court chief over rights reforms’, 19 april
2012: http://www.independent.co.uk/news/uk/politics/clarke-clashes-with-courtchief-over-rights-reforms-7660237.html
220 Quoted in Von Staden, A., ‘Democratic Legitimacy of Judicial Review beyond the
state: Normative Subsidiarity and Judicial Standards of Review’, International
Journal of Constitutional Law, Vol. 10, No.4, 2011, p. 17
219
53 Jan Paternotte – The Margin of Appreciation under fire felt not in Sweden, but in Chechnya and South-East Turkey.”221
Just like in the Lawless and Handyside cases, the Court will once again
have to rivet its authority. And just like the margin of appreciation itself, it
will be a permanent balancing exercise between Scylla and Charybdis.
Eerste Kamer der Staten-Generaal, ‘Verslag van een expert meeting’, vastgesteld
15 februari 2012, kamerstuk 33 000 V, p.24
221
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Lawless v. Ireland no.3 1961
Ireland v. UK 1978
A and others v. UK, 2009
Handyside v. United Kingdom 1976
Sunday Times v. United Kingdom no.1 1979
Muller and Others v. Switzerland 1988
Dudgeon v. United Kingdom 1981
Rasmussen v. Denmark 1984
Marckx v. Belgium 1979
Konstantin Markin v. Russia 2012
Luberti v. Italy 1984
Braunig v. Germany 2012
Graf v. Germany, 2012
Creanga v. Romania 2012
Lebedev v. Russia 2010
Pretto and others v. Italy 1983
Brualla Gomez de la Torre v. Spain 1997
Waite and Kennedy v. Germany 1999
Vo v. France 2004
A., B. and C. v. Ireland 2010
M.C. v. Bulgaria 2003
Z. and others v. United Kingdom 2001
Rees v. United Kingdom 1986
Sheffield and Horsham v. United Kingdom 1998
Young, James and Webster v. United Kingdom 1981
Frette v. France 2002
Smith and Grady v. United Kingdom 1999
Brauch, p. 137-140
Tyrer v. United Kingdom 1978
Ozturk v. Germany 1984
M.C. v. Bulgaria 2003
Pretty v. United Kingdom 2002
Vo v. France 2004
Stec and others v. United Kingdom 2006
Hirst v. United Kingdom no.2 2005
Relating to certain aspects of the laws on the use of languages in education
in Belgium v. Belgium
Christine Goodwin v. United Kingdom 2002
Evans v. United Kingdom 2007
Pretty v. United Kingdom 2002
Kyprianou v. Cyprus 2005
Ocalan v. Turkey 2005
Z. v. Finland 1997
A v. Norway 2009
S.H. and Others v. Austria 2010
Chahal v. United Kingdom 1996
James and Others v. United Kingdom 1986
59 Jan Paternotte – The Margin of Appreciation under fire Moskal v. Poland 2009
Kozacioglu v. Turkey 2009
Michael Theodossiou Ltd v. Cyprus 2009
Othman (Abu Qatada) v. United Kingdom 2012
M.S.S. v. Belgium and Greece 2011
Scoppola v. Italy no.3 2012
60