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Séminaire UIA

Further  information  about  the  CELS  Working  Papers  Series  can  be  found  at   http://www.cels.law.cam.ac.uk/publications/working_papers.php  

 

 

 

http://www.cels.law.cam.ac.uk  

February  2012  

Allowing  the  Right  Margin  the  European  Court  of   Human  Rights  and  the  National  Margin  of  

Appreciation  Doctrine:  Waiver  or  Subsidiarity             of  European  Review?  

Judge  Dean  Spielmann  

Section  President  of  the  ECHR  

Version 2012

A L L O W IN G T H E RI G H T M A R G IN T H E E UR OPE A N C O UR T O F H U M A N RI G H TS A ND

T H E N A T I O N A L M A R G IN O F APPR E C I A T I O N D O C T RIN E : W A I V E R O R SUBSIDI A RI T Y O F E UR OPE A N R E V I E W?

D E A N SPI E L M A NN*

The doctrine of the national margin of appreciation is well established in the case-law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case- will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree revers margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No. 14, now ratified by all Council of Europe member States, enshrines in Article 12 at least to some extent an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity? I . - Introduction It is well known that under Article 32 of the European Convention on Human Rights the

urisdiction extends to all matters concerning the interpretation and application of the Convention and the Protocols thereto. The intention of the States was to make the Court the sole interpreter of this instrument whenever it was called upon. Prior to the lodging of an application, the rights guaranteed by the Convention have or have not been applied by the domestic authorities. Given that the Court can be seised of a case only after the exhaustion of domestic remedies1, it will inevitably take a retrospective look at a case in assessing whether or not the Convention has been breached. * LL.M. (Cantab.), Judge of the European Court of Human Rights and President of Section V. This is a revised version of a paper presented at the Centre for European Legal Studies, University of Cambridge on 29 February 2012. The opinions expressed in this article are personal to the author. The author would like to thank James Brannan for his translation. The original French version of this article was originally drafted as a paper delivered at the Institut Grand-Ducal (Luxembourg) on 7 December 2009. The French version of this paper and the minutes of the discussion that followed the presentation of 7 December 2009 have been published in Actes de la Section des Sciences Morales et Politiques -Ducal, Volume XIII (Luxembourg, 2010), pp. 203-255. The original French version of the paper has also been published in Journal des Tribunaux- Luxembourg, 2010, pp. 117-127. 1 Article 35 of the Convention reads as follows:

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The domestic margin of appreciation is a notion which refers to the room for manoeuvre that the European Court of Human Rights is prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights2. The doctrine thus mainly concerns the relations between the Court and the domestic legal orders. As one author points out, there is a consensus of legal opinion that the margin of appreciation is a tool of jurisprudential origin through which the European Court leaves the national authorities a certain autonomy in applying the Convention . n respect of those acts that may be covered by the doctrine, the margin of appreciation confers what appears to be a mild form of immunity, entailing a level of European review that is less intense than the review that the Court Article 32 of the Convention. scrutinised only

3. To quote Judge Malinverni Lautsi v. Italy4:

tool that needs to be handled with care because the scope of that margin will depend on a great many factors: the right in issue, the seriousness of the infringement, the existence of a

appreciation is not identical in each case but will vary according to the context ... . Relevant factors include the nature of the Convention right in issue, its importance for the individual

[Buckley v. the United Kingdom, 25 September 1996, § 74, Reports of Judgments and Decisions 1996-IV]. The proper application of this theory will thus depend on the importance to be attached to each of these various factors. Where the Court decrees that the margin of appreciation is a narrow one, it will generally find a violation of the Convention; where it considers that the margin of appreciation is wide, the

5

to be found either in the text of the Convention or in the preparatory work. However, the doctrine is well established in the case-law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. Various reasons for this have been put forward in legal writings, for example: the subsidiarit , respect for pluralism and State

The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the

For a recent discussion concerning Luxembourg and the existence of an effective domestic remedy for the length of proceedings to be used before applying to the Court, see the judgment Leandro Da Silva v. Luxembourg, no. 30273/07, 11 February 2010. 2 S. Greer, The margin of appreciation: Interpretation and discretion under the European Convention on Human Rights, Council of Europe, Human rights files, No. 17, 2000, p. 5. 3 J. Callewaert Wildhaber (ed.), Protecting Human Rights: The European Perspective. Studies in memory of Rolv Ryssdal, Cologne-Berlin-Bonn-Munich, Carl Heymanns Verlag K.G., 2000, pp. 147-166, p. 149 [translation]; La

C

Au

autorités nationales. 4 Lautsi v. Italy [GC], no. 30814/06, 18 March 2011. 5 Dissenting opinion of Judge Malinverni, joined by Judge Kaladjieva; Lautsi v. Italy (cited above).

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sovereignty, a lack of resources preventing the Court from extending its examination of cases beyond a certain level, cult socio-economic balancing exercises, or the idea that the European Court of Human Rights is too distant to settle particularly sensitive cases6.

examples from case-law. Through this examination it should be possible to establish the extent of the margin, albeit in a rather approximate manner. After all, the term refers usually to a residual area, the main core not constituting the margin and thus remaining within

7. But as this paper will show, in those situations where the Court imposes self-restraint in its task of interpretation, it is no longer the margin that is left to the national authorities, but in fact the main part of the interpretation work, with the Court simply retaining a margin of review. The notion is not therefore devoid of ambiguity. When the Court waives it power of review if indeed one may speak of a waiver what exactly does it leave to the assessment of the national authorities? Merely the factual aspects of a case? And what about the domestic law? To what extent is the Court entitled to interpret domestic law, or even international law? The margin of appreciation doctrine has given rise to numerous books and academic articles8. It would not therefore be appropriate to present once again a comprehensive study of the case-

6

Paravent juridique superflu ou mécanisme indispensable par nature Revue de science criminelle et de droit pénal comparé, 2006, pp. 3-23. 7 la marge nationale

laissée aux États.

radars qui mesurent les excès de vitesse des voitures !). pencher la balance dans le sens de la non- J.- de la Convention et le contrôle juridi Annales du droit luxembourgeois, 15 (2005), pp. 13-22, esp. p. 19. 8 Among the numerous studies on the margin of appreciation, three works should be mentioned in particular: Yutaka Arai-Takashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, Intersentia, 2002; H. C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, Kluwer Law International, The Hague, Boston, London, 1996; and E. Kastanas, Unité et diversité

, Brussels, Bruylant, 1996. See also the following articles: W. Ganshof

Protecting Human Rights : The European Dimension. Studies in honour of de G .J. Wiarda, Cologne, Berlin, Bonn, Munich, Carl Heymanns Verlag K.G., 1988, pp. 201- Macdonald, F. Matscher et H. Petzold, (eds.), The European System for the Protection of Human Rights, Dordrecht, Boston, London, Martinus Nijhoff Publishers, 1994, pp. 83-

-Ruiz et al., Le droit Milan, Giuffrè, 1987, Vol. III,

pp. 187-208; -Law of the European Court of Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1996, pp. 240-314; P. Lambert,

, Brussels, Nemesis, Bruylant, 1998, pp. 63-89. The proceedings of a seminar entitled The doctrine of the Margin of Appreciation under the European Convention on Human Rights : Its Legitimacy in Theory and Application in Practice were published in a special issue of the Human Rights Law Journal (1998, pp. 1 et seq.) with contributions by Paul Mahoney, Johan Callewaert, Clare Ovey,

UCL Human Rights Review, 2010, pp. 1-

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law. More modestly, this paper will seek to contribute to the debate surrounding the justification for the margin of appreciation doctrine: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity? To further the discussion, the paper will first focus on the judge-made nature of the doctrine, briefly presenting the areas in which the margin of appreciation has most often been applied, with an overview of its origins. I will then examine the object and extent of the doctrine, dwelling on the significance of the proportionality principle. Reference will be made to recent developments concerning the adaptation of the margin to the separation of powers at domestic level, and I will end the paper by looking to the future, particularly bearing in mind the role of Protocol No. 14, which will undoubtedly have an impact on the subsidiarity of the European review mechanism. I will not discuss the question of the execution of the judgments of the European Court of Human Rights pursuant to Article 46 of the Convention. The scope of the margin afforded to

-law, especially in relation to pilot judgments9. I I . National margin of appreciation: an essentially judge-made doctr ine (a) O rigins of the doctrine The origins of the doctrine10 date back to 1958, the year before the Court was established. It was the former European Commission of Human Rights which, in its decision of 26 September 1958 concerning the inter-State application Greece v. the United Kingdom on the subject of Cyprus, held that the respondent Government should, in respect of Article 15 of the Convention, be able to exercise easure of discretion (une certaine marge

)11. Briefly, Article 15 contains the following first paragraph:

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 [the] Convention to

-

Legal Studies), Research Paper No. 52/2011. Lastly, mention should be made of the relevant chapters in the following monographs: S. van Drooghenbroeck, La proportionnalité dans le droit de la Convention européenne

Brussels, Bruylant and Publications des facultés universitaires Saint-Louis, 2001 (Chapter V) pp. 483-548; G. Letsas, A Theory of interpretation of the European Convention on Human Rights, Oxford, Oxford University Press, 2007 (reprinted 2009, Foreword by D. Spielmann), (Chapter 4), pp. 80-98, a con which had previously been published in the Oxford Journal of Legal Studies, 2006 (pp. 705-732) and L.

How Much -Yi Huang (ed.), Administrative Regulation

and Judicial Remedies, Institutum Iurisprudentiae Academia Sinica, Taipe, Taiwan, Republic of China, 2011, pp. 53-128. 9 Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, §§ 103-122, ECHR 2010 (extracts); Ananyev and O thers v. Russia, nos. 42525/07 and 60800/08, §§ 179-240, 10 January 2012 10 F. Sudre (ed.),

, Brussels, Nemesis, Bruylant, 1998, pp. 63 et seq. 11 Application no. 176/56, Yearbook of the European Convention on Human Rights, vol. 2, pp. 174, 176.

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the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

In the case of Lawless v. Ireland, a case that gave rise to the first judgment of the European Court of Human Rights on 1 July 196112, the Commission once again referred to the

in determining the existence of a public danger threatening the life of the nation. As to the Court itself, it was in the case of Ireland v. the United Kingdom (18 January 1978)13 that it first expressly used the term 14. Addressing the interpretation of Article 15, the Court found as follows:

it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15 para. 1 leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with

19), is empowered to rule o

22, and pp. 57-59, paras. 36-38). The domestic margin of appreciation is thus accompanied by a European supervision.

The origins of the doctrine can thus be traced back to cases concerning the vital interests of the nation an area in which the Convention organs were reluctant to go further. The combating of terrorism has recently given rise t - reverse margin of appreciation doctrine, as will be shown later. (b) Applications of the doctrine The Court has developed the doctrine mainly when addressing the various permissible restrictions on rights and freedoms. In its Handyside judgment of 7 December 197615 concerning freedom of expression and its limits, the Court made the following observations in applying the margin of appreciation doctrine:

lished by the Convention is subsidiary to the national systems safeguarding human rights (judgment of 23 July 1968 on the merits of the Belgian Linguistic case, Series A no. 6, p. 35, para. 10 in fine). The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted (Article 26).

By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an

12 Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3. 13 Ireland v. the United Kingdom, 18 January 1978, § 207, Series A no. 25. 14 For earlier implicit references to the doctrine, see, in respect of Article 14 of the Convention, the Case

(merits), 23 July 1968, § 10 of point I.B., Series A no. 6, and in respect of Article 8 § 2 of the Convention, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 93, Series A no. 12 (where the Cour 15 Handyside v. the United Kingdom, 7 December 1976, Series A no. 24.

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opinion on the exact content of these requirements as well as on the necessity of a restriction or penalty intended to meet them. Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of necessity in this context.

Consequently, Article 10 para. 2 leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ( prescribed by law ) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force (Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100; cf., for Article 8 para. 2, De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45). 49. Nevertheless, Article 10 para. 2 does not give the Contracting States an unlimited power of appreciation. The Court, which, with the Commission, is responsible for ensuring the observance of those States' engagements (Article 19), is empowered to give the final ruling on whether a restriction or penalty is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its necessity ; it covers not only the basic legislation but also the decision applying it, even one

given by an independent court.

50. It follows from this that 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.

The restrictions on the rights provided for by Articles 8 to 11 of the Convention (private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of association) a margin of appreciation16. By establishing such restrictions, which are admittedly limited in number, these provisions lead the European Court to look at the justification for an interference and to consider whether it is proportionate or disproportionate. The same applies to the implied limitations in Article 3 of Protocol No. 1, which guarantees free elections. Article 1 of Protocol No. 1 to the Convention is the only provision which expressly enshrines a discretionary power of the national authorities. More will be said about that later. However, even in that context the margin will not be unlimited, because an arbitrary or disproportionate interference will entail a violation of the Article. Another example concerns Article 9 of the Convention, which guarantees freedom of thought, conscience and religion. In respect of the wearing of the Islamic headscarf in Turkish universities, the Court found as follows in its Leyla ahin judgment of 10 November 200517:

Where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance (see, mutatis mutandis, Shalom Ve Tsedek, cited above, § 84, and Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports 1996-V, pp. 1957-58, § 58). This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions, especially (as the comparative-law materials illustrate see paragraphs 55-65 above) in view of the diversity of the approaches taken by national authorities on the issue. It is not possible to discern throughout Europe a uniform conception of the significance of religion in society (see Otto- Preminger-Institut v. Austria, judgment of 20 September 1994, Series A no. 295-A, p. 19, § 50), and the meaning or impact of the public expression of a religious belief will differ according to time and context (see, among other authorities, Dahlab v. Switzerland (dec.), no. 42393/98,

16 Tulkens and Donnay, op. cit., pp. 7 et seq. 17 [GC], no. 44774/98, ECHR 2005-XI.

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ECHR 2001-V). Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order (see, mutatis mutandis, Wingrove, cited above, p. 1957, § 57). Accordingly, the choice of the extent and form such regulations should take must inevitably be left up to a point to the State concerned, as it will depend on the specific domestic context (see, mutatis mutandis, Gorzelik and Others, cited above, § 67, and Murphy v. Ireland, no. 44179/98, § 73, ECHR 2003-

Furthermore, the Court has be

18. According to its case-law, the doctrine extends to procedural rights and in particular under Article 6. For example, as regards a refusal to submit a preliminary question to a constitutional court or to the European Court of Justice, the Court has displayed considerable tolerance. In Ernst v. Belgium the Court found as follows in its judgment of 15 July 200319:

74. The Court first observes that the Convention does not guarantee, as such, a right to have a case referred by a domestic court for a preliminary ruling to another domestic or international court. It would also reiterate its case-law to the effect that the right to a court , of which the right of access is one aspect, is not absolute, but 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 (see, among other authorities, the judgment in Brualla Gómez de la Torre v. Spain, 19 December 1997, Reports 1997-VIII, p. 2955, § 33). The right to bring a case before a court through a preliminary ruling mechanism cannot be absolute either, even where legislation reserves a legal domain for the exclusive review of a particular court and imposes an unconditional obligation on other courts to refer any related questions to it. As the Government argued, it is part of the operation of a such a mechanism that a court must ascertain whether it can or must submit a preliminary question, ensuring that the question is one to be resolved in order to settle the dispute before it. That being said, it cannot be excluded that, in certain circumstances, a refusal by a domestic court that is called upon to rule at last instance might breach the principle of fair proceedings, as provided for in Article 6 § 1 of the Convention, in particular where such a refusal is found to be arbitrary (see Dotta v. Italy (dec.), no. 38399/97, 7 September 1999, unreported, and Predil Anstalt S.A. v. Italy (dec.), no. 31993/96, 8 June 1999, unreported) 20.

However as we will see later that Court has been far more reluctant to accept a margin of appreciation where non-derogable rights are at stake. The right to life or the prohibition of torture are hardly conducive to the application of a margin of appreciation. I I I . Object and scope of the doctrine Having identified the areas in which the margin of appreciation doctrine has been most commonly used, its object and scope will now be examined.

18 de nouvelles contrées Tulkens and Donnay, op. cit., pp. 10 et seq. 19 Ernst and O thers v. Belgium, no. 33400/96, 15 July 2003 (unofficial translation). 20 Concerning the refusal to submit a preliminary question to the European Court of Justice, see D. Spielmann,

Les droits de , , Sakkoulas, Bruylant, 2009, pp. 455

et seq. See, for a recent judgment, Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 2011, not final.

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The object first of all. According to the case-law, there are two realms that typically fall within the margin of appreciation of the national authorities and the domestic courts in particular, namely questions of fact and of domestic law. (a) Facts and law The assessment of the facts falls in the first place to the domestic authorities and courts. In the Klaas judgment of 22 September 199321 the Court pointed out as follows:

assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them (see, inter alia, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 12, para. 34, and the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, paras. 33- 22

Questions of fact or domestic law (or even international law) thus, in principle, fall outside

. In principle, because even for such questions the Court reserves the right to review, on the fringe, the assessment made by the domestic courts and authorities. As regards domestic law, and according to well-established case-law, the Court is constantly reiterating that its task, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the High Contracting Parties. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law23. This holds true also for the interpretation of private instruments, for example clauses in wills, provided that the

blatantly inconsistent with the fundamental principles of the Convention. The Court found as follows in its Pla and Puncernau v. Andorra judgment of 13 July 200424, concerning the exclusion of an adopted child from inheritance as a result of a judicial interpretation of the te :

46. On many occasions, and in very different spheres, the Court has declared that it is in the first place for the national authorities, and in particular the courts of first instance and appeal, to construe and apply the domestic law (see, for example, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 20, § 46; Iglesias Gil and A.U .I. v. Spain, no. 56673/00, § 61, ECHR 2003-V; and Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003-X). That principle, which by definition applies to domestic legislation, is all the more applicable when interpreting an

the domestic courts are evidently better placed than an international court to evaluate, in the light of local legal traditions, the particular context of the legal dispute submitted to them and the various competing rights and interests (see, for example, De Diego Nafría v. Spain, no. 46833/99, § 39, 14 March 2002). When ruling on disputes of this type, the national authorities and, in particular, the courts of first instance and appeal have a wide margin of appreciation. Accordingly, an issue of interference with private and family life could only arise under the

unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the

21 Klaas v. Germany, 22 September 1993, § 29, Series A no. 269. 22 § 29 of the judgment. 23 See, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 53, ECHR 2000-V; Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, § 59. 24 Pla and Puncernau v. Andorra, no. 69498/01, ECHR 2004-VIII.

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As regards domestic legislation, the Court reiterated the following principle in its Miragall Escolano judgment of 25 January 200025:

33. that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts of appeal and of first instance, to resolve problems of interpretation of domestic legislation (see, mutatis mutandis, the Brualla Gómez de la Torre judgment cited above, p. 2955, § 31, and the Edificaciones March Gallego S.A. judgment cited above, p. 290, § 33). The role of the Court is limited to verifying whether the effects of such interpretation are

Moreover, as the Court pointed out in its Korbely judgment of 19 September 200926 concerning domestic and international law:

72. Furthermore, the Court would reiterate that, in principle, it is not its task to substitute itself

for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or international agreements. The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999- 27

We have thus seen how the margin is allowed for the characterisation of the facts of the case and for the interpretation of domestic and international law. (b) Interpretation of the Convention and width of the margin How wide should the margin of appreciation be when it comes to interpreting the provisions of the European Convention on Human Rights? The question is a controversial one, even within the Court. This can be seen from three examples: one dissenting opinion of Judge De Meyer and two more recent concurring opinions of Vice-President Rozakis and Judge Malinverni. In his partly dissenting opinion appended to the Z. v. F inland judgment of 25 February 199728, in a case concerning medical secrecy, Judge De Meyer commented as follows:

I believe that it is high time for the Court to banish that concept from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies. It is possible to envisage a margin of appreciation in certain domains. It is, for example, entirely natural for a criminal court to determine sentence - within the range of penalties laid down by the legislature - according to its assessment of the seriousness of the case. But where human rights are concerned, there is no room for a margin of appreciation which would enable the States to decide what is acceptable and what is not.

25 Miragall Escolano and O thers v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, ECHR 2000-I. 26 Korbely v. Hungary [GC], no. 9174/02, 19 September 2008. 27 Compare the Chamber judgment in Kononov (Kononov v. Latvia, no. 36376/04, § 110, 24 July 2008). This case gave rise to a Grand Chamber judgment: Kononov v. Latvia [GC], no. 36376/04, ECHR 2010. 28 Z v. F inland, 25 February 1997, Reports of Judgments and Decisions 1997-I.

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On that subject the boundary not to be overstepped must be as clear and precise as possible. It is

to everyone within the jurisdiction of each State. The emp - 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. Such terminology, as wrong in principle as it is pointless in practice, should be abandoned

Judge Rozakis expressed more nuanced comments in his concurring opinion appended to the Egeland and Hanseid v. Norway judgment of 16 April 200929 concerning photographs taken of a convicted person and their publication in the press. The Court found that there had been no violation of Article 10, endorsing the domestic decisions that the respondent State had to be allowed a wide margin of appreciation in balancing the interests at issue. According to Judge Rozakis, the Court had applied the margin of appreciation concept automatically, even though the case did not permit such an approach. For him, it should only be in cases where the

the Court should relinquish its power of assessment and limit itself to a simple supervision of the national decisions30. Judge Malinverni on appended to the same judgment, Egeland and Hanseid, concerns for its part the width of the margin to be allowed. His main criticism

margin of appreciation. Taking two factors as his starting point the existence of a European consensus and the significance of the right at issue Judge Malinverni arrives at the conclusion that in that case the Court should have allowed the Norwegian authorities only a limited margin of appreciation, which could have led to the same result, namely the finding that there had been no violation of Article 10 of the Convention. It would have been sufficient to observe that the interference had not overstepped the limits of the margin31.

29 Egeland and Hanseid v. Norway, no. 34438/04, 16 April 2009. 30 plied in cases where, after careful consideration and specific conditions which existed within a particular domestic order, and, accordingly, had greater knowledge than an international court in deciding how to deal, in the most appropriate manner, with the case before them. Then, and only then, should the Court relinquish its power to examine, in depth, the facts of a case, and limit itself to a simple supervision of the national decisions, without taking the place of national authorities,

In that judgment the Court based its findings on a lack of consensus in such matters. That reasoning is also criticised by Judge Rozakis as follows:

taking of photographs of charged or convicted persons in connection with court proceedings does not suffice to justify the application of the margin of appreciation. This ground is only a subordinate basis for the application of the concept, if and when the Court first finds that the national authorities are better placed than the Strasbourg Court to deal effectively with the matter. If the Court so finds, the next step would be to ascertain whether the presence or absence of a common approach of European States to a matter sub judice does or does not allow the

31

the existence of a European consensus and the importance of the right in issue it follows that, in the instant case, the Court ought to have accorded the Norwegian authorities a limited margin of appreciation. 13. With regard to the first criterion, there is in fact little unanimity within the member States of the Council of Europe concerning the prohibition on taking photographs of individuals who have been charged or convicted. By

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In order to determine the width of the margin allowed for the interpretation of the Convention, the following factors have been identified by legal writers: the provision invoked, the interests at stake, the aim pursued by the impugned interference, the context of the interference, the impact of a possible consensus in such matters, the degree of proportionality of the interference and the comprehensive analysis by superior national courts. (1) The provision invoked As we have already seen, the Court grants considerable room for to States in order to assess an exceptional situation for the purposes of Article 15 of the Convention. A situation threatening the life of the nation is better assessed by the national authorities. The Court can hardly substitute its own opinion for that of national intelligence services. Similarly, in a quite different area, that of respect for private property, the margin of appreciation is particularly wide given that the very wording of Article 1 of Protocol No. 1 expressly refers to national discretion, providing that States have the right to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. The margin is thus particularly wide in both these very different areas. On the other hand the margin of appreciation is virtually inexistent when it comes to the non- derogable rights (right to life, prohibition of torture, prohibition of slavery and forced labour, prohibition of retrospective legislation, the ne bis in idem rule). The absolute nature of the prohibition of torture was solemnly reasserted by the Court in a counter-terrorism context. In the major case of Saadi v. Italy of 28 February 200832, concerning an applicant who faced deportation to Tunisia, the Court found as follows (§ 138):

imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 127 above). It must therefore reaffirm the principle stated in the Chahal judgment (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account, with the consequence that the protection afforded by Article 3 is broader than that provided for in Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees (see Chahal, cited above, § 80 and paragraph 63 above). Moreover, that conclusion is in line with points IV and XII of the guidelines of the Committee of Ministers of the Council of Europe

Denmark, Cyprus and the United Kingdom (England and Wales) (see paragraph 54 of the judgment). 14. As to the second criterion, the freedom in issue here is the freedom of the press, which plays an essential role in a democratic society, as the Court itself acknowledges (see paragraph 49). 15. Contrary to what one might think, the fact of allowing only a limited margin of appreciation does not necessarily lead to a finding that there has been a violation of the Convention. It is enough that the interference found does not exceed this margin 32 Saadi v. Italy [GC], no. 37201/06, ECHR 2008.

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Concerning more particularly the virtual inexistence of the national margin in respect of diplomatic assurances, the Court explained as follows (§ 148):

rmore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, § 105). The weight to be given to assurances from the receiving State depends, in each case, on the circumstances

33. However, concerning the right to education, which is not a non-derogable right, the Court is willing to grant a margin of appreciation. For example, the Court did not find a violation in the Lautsi and O thers v. Italy judgment34. The case concerned crucifixes in classrooms of Italian State school. to reconcile the exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions35. The Court therefore has a duty to respect

such matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination36. The Court thus decided as follows:

decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools ... speaks in favour of that approach. This margin of appreciation, however, goes hand in hand with European supervision (see, for example, mutatis mutandis, , cited above, § 110), the Court's task in the present case being to determine whether the limit mentioned in paragraph 69 above has been exceeded.

The impact of the consensus argument will be observed again later. Finally, and concerning the relationship between respect for private life and freedom of expression, the Court has recently made clear in relation to the margin of appreciation, that the outcome of the application should not, in principle, vary according to whether it has been lodged under Article 10 by the publisher who has published the offending article or under Article 8 of the Convention by the person who was the subject of the article. Indeed, as a matter of principle these rights deserve equal respect37. (2) Interests at stake

33 Liber Amicorum Antonio La Pergola, 2nd ed., Lund, Juristförlaget, 2009, pp. 205-210 of the European Court of Human Rights to the absolute ban of torture. The practice of diplo D. Spielmann, M. Tsirli et P. Voyatzis (eds.), The European Convention on Human Rights, a living instrument, Essays in Honour of Christos L. Rozakis, Brussels, Bruylant, 2011, pp. 155-79. See also the recent judgment in O thman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 186 et seq., 17 January 2012. 34 Lautsi and O thers v. Italy [GC], no. 30814/06, 18 March 2011. 35 § 69 of the judgment. 36 ibid. 37 Axel Springer AG v. Germany [GC], no. 39954/08, § 87, 7 February 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, 7 February 2012.

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The issue of the interests at stake arises especially in the context of the limitations to Articles 8 to 11 (private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association). In these areas the Court has applied the margin of appreciation doctrine. The extent of this concession to the national authorities will vary according to the interests at stake. It is interesting to compare two cases concerning freedom of expression that were decided in 1996: Wingrove and Goodwin. The Wingrove case concerned a refusal to grant approval for the distribution of a film that was considered blasphemous; the Goodwin . In the Wingrove judgment of 25 November 199638, the Court found that there had been no violation of Article 10 of the Convention, explaining that a wider margin of appreciation was generally available in relation to matters liable to offend intimate personal convictions within the sphere of morals or religion39. As in the field of morals, there was no uniform European conception of the requirements of protection against attacks on religious convictions40. The Court added that the State authorities were in a better position than the international judge to set such requirements and to decide on the necessity of a restriction41. By contrast, in the Goodwin judgment of 27 March 199642 the Court found that there had been a violation, deciding that, having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure had on the exercise of that freedom, such a measure could not be compatible with Article 10 unless it was justified by an overriding requirement in the public interest43. Limitations on the confidentiality of journalistic sources called for the most careful scrutiny by the Court44. On the one hand, there is a wide margin for religious and moral questions; on the other, a very narrow margin for questions of general interest presented and discussed by the press. The appropriate width of margin thus follows a sliding scale which fixes the boundaries according to the type of speech and the manner in which the ideas are expressed45.

-law can thus be read in the light of the two aims protected by freedom of expression. The main aim relates to the role played by freedom of expression in a democratic society. Freedom of expression is thus regarded as the necessary vehicle to enable each person to participate in the life of the democracy. The second aim is more individualistic:

38 Wingrove v. the United Kingdom, 25 November 1996, Reports of Judgments and Decisions 1996-V. 39 § 58 of the judgment. 40 ibid. 41 ibid. 42 Goodwin v. the United Kingdom, 27 March 1996, Reports of Judgments and Decisions 1996-II. 43 § 39 of the judgment. 44 § 40 of the judgment. 45 European Human Rights Law Review, 1997, pp. 364-379,

on free speech generally that different kinds of speech enjoy different levels of protection, with journalistic speech the public watchdog - coming very near the top

r also includes in the top category the case of Jersild concerning the conviction and fining of a television journalist for complicity in disseminating racist remarks (see Jersild v. Denmark, 23 September 1994, series A no. 298). For a critique of the case- European Human Rights Law Review, 1998, pp. 73- involves abdicating from the task of discerning and articulating the criteria appropriate to the difficult problems raised by this type of case, where free expression is in conflict with popular and deeply-felt local sentiments

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freedom of expression furthers an individual -fulfilment. Since the restrictions in the first context are likely to affect the democratic process as such, the margin of appreciation will be very narrow. It is not the same in the second context, where the margin will be broader. As the Court pointed out in Goodwin46:

must be convincingly established ... Admittedly, it is in the first place for the national authorities to assess whether ther assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued.

In the area of private and family life, an area protected by Article 8 of the Convention, the Court has used a similar method, taking into account the interests at stake. In its recent Evans v. the United Kingdom judgment47, concern sent for the preservation and implantation of fertilised eggs, the Court summed up the issue of the width of the margin of appreciation in this Article 8 context as follows:

A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. Where a

allowed to the State will be restricted (see, for example, X and Y v. the Netherlands, 26 March 1985, §§ 24 and 27, Series A no. 91; Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI; see also Pretty, cited above, § 71). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports of Judgments and Decisions 1997-II; Fretté v. F rance, no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin, cited above, § 85; see also, mutatis mutandis, Vo, cited above, § 82). There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights (see Odièvre, §§ 44-49, and Fretté,

In the Leander v. Sweden judgment48 concernin public service, the Court did not find a violation because the applicant had been regarded as a national security risk. A wide margin of appreciation was granted to the State precisely because the case concerned national security:

59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved. In the instant case, the interest of the respondent State in protecting its national security must be balanced against the seriousness of

There can be no doubt as to the necessity, for the purpose of protecting national security, for the Contracting States to have laws granting the competent domestic authorities power, firstly, to collect and store in registers not accessible to the public information on persons and, secondly,

46 Goodwin v. the United Kingdom (cited above), § 40; see also Ernst and O thers v. Belgium, no. 33400/96, 15 July 2003. 47 Evans v. the United Kingdom [GC], no. 6339/05, ECHR 2007-IV. 48 Leander v. Sweden, 26 March 1987, series A no. 116.

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to use this information when assessing the suitability of candidates for employment in posts of importance for national security.

through the consequences it had on his possibilities of access to certain sensitive posts within the public service. On the other hand, the right of access to public service is not as such enshrined in the Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and, apart from those consequences, the interference did not constitute

.

The adjudication of interests very often involves the balancing of these interests. Recent case- law has tended to accord particular weight to this balancing exercise. In the Evans case, cited above, the Court found as follows:

IVF treatment, the Grand Chamber, in common with every other court which has examined this case, has great sympathy for the applicant, who clearly desires a genetically related child above all else. However, given the above considerations, including the lack of any European consensus on this point ...

right to respect for his decision not to have a genetically related child with her. 91. The Court accepts that it would have been possible for Parliament to regulate the situation differently. However, as the Chamber observed, the central question under Article 8 is not whether different rules might have been adopted by the legislature, but whether, in striking the balance at the point at which it did, Parliament exceeded the margin of appreciation afforded to it under that Article. 92. The Grand Chamber considers that, given the lack of European consensus on this point, the fact that the domestic rules were clear and brought to the attention of the applicant and that they struck a fair balance between the competing interests, there has been no violation of Article 8 of the Convention.

By contrast, in the Dickson case49, concerni artificial insemination so that he could become a father, the Court found that there had been a violation of Article 8 of the Convention on the basis of the following reasoning:

82. The Court considers that even if the applicants' Article 8 complaint was before the Secretary of State and the Court of Appeal, the Policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary of State or by the domestic courts in their case, as required by the Convention (see, mutatis mutandis, Smith and Grady, cited above § 138).

84. the Court does not consider that the statistics provided by the Government undermine the above finding that the Policy did not permit the required proportionality assessment in an individual case.

85. The Court therefore finds that the absence of such an assessment as regards a matter of significant importance for the applicants (see paragraph 72 above) must be seen as falling outside any acceptable margin of appreciation so that a fair balance was not struck between the

49 Dickson v. the United Kingdom [GC], no. 44362/04, § 82, ECHR 2007-XIII.

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competing public and private interests involved. There has, accordingly, been a violation of Article 8 of the Convention.

The role of the domestic procedure should briefly be emphasised here. The national authorities are certainly allowed some leeway, but they have to remain within the human rights protection framework. It is thus essential to ensure an effective national procedure that permits the balancing of interests. In recent case-law the Court has thus focussed on the procedural requirements of the provisions relied upon by applicants. Concerning an eviction from a flat, the Court confirmed its case-law50, for example, in the v. Croatia judgment of 15 January 200951, as follows:

21. In the present case, the Court notes that when it comes to the decisions of the domestic authorities, their findings were limited to the conclusion that under applicable national laws the applicant had no legal entitlement to occupy the flat. The first-instance court expressly stated

exclusively on the applicable laws. The national courts thus confined themselves to finding that occupation by the applicant was without legal basis, but made no further analysis as to the proportionality of the measure to be applied against the applicant. However, the guarantees of the C not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case. Furthermore, no legal provision of domestic law should be interpreted and applied in a manner

Stanková v. Slovakia, cited above, § 24). 22. In this connection the Court reitera interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his or her right of occupation has come to an end (see McCann v. the United Kingdom, no. 19009/04, § 50, 13 May 2008). 23. However, in the circumstances of the present case the applicant was not afforded such a possibility. It follows that, because of such absence of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case.

Similarly, in its v. Croatia judgment of 22 October 200952, also concerning eviction from a flat, a violation was found for the simple reason that the domestic courts had not examined the proportionality of the impugned measure:

45. In the circumstances of the present case the civil court ordered eviction of the applicant from his home without having determined the proportionality of the measure. Thus, it has not afforded the applicant adequate procedural safeguards. There has, therefore, been a violation of Article 8 of the Convention in the instant case.

(3) Aim pursued by the impugned interference In order to determine the width of the margin of appreciation, the Court also takes into account the aim pursued by the impugned interference. As we have already seen, if the aim pursued concerns national security the margin will be a wide one. It will also be wide when it

50 McCann v. the United Kingdom, no. 19009/04, 13 May 2008. 51 , no. 28261/06, 15 January 2009. 52 , no. 3572/06, 22 October 2009.

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comes to social and economic policies. The case-law under Article 1 of Protocol No. 1 is of particular relevance here. In its James and O thers v. the United Kingdom judgment of 21 February 198653, the Court

that the margin of appreciation available to the legislature in implementing 54. In Stec and O thers v. the United

Kingdom55, the Court accorded a wide margin of appreciation in a case concerning differences between men and women as regards entitlement to social security benefits for accidents at work. The Court has followed the same approach in cases concerning property rights after German reunification56. In Jahn and O thers57 the Court thus found that:

91 because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what

it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities, accordingly, enjoy a certain margin of appreciation.

decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a w

James and O thers, cited above, p. 32, § 46; The former King of Greece and O thers, cited above, § 87; and Zvolsk� and Zvolská v. the Czech Republic, no. 46129/99, § 67 in fine, ECHR 2002-IX). The same applies necessarily, if not a fortiori, to such radical changes as those occurring at the time of German reunification, when the system changed to a market economy.

(4) Context of the interference The context of the interference, and in particular the historical context, especially at a time of transition, is normally taken into account by the Court. A good example can be found in

v. Latvia58 concerning the disqualification of persons from standing in parliamentary elections on account of their active participation in a party that had been involved in an attempted état. The Court accorded a wide margin of appreciation in that case:

121. The impugned restriction introduced by the Latvian legislature by way of section 5(6) of

dissolution in September 1991, must be assessed with due regard to this very special historico- political context and the resultant wide margin of appreciation enjoyed by the State in this respect .

53 James and O thers v. the United Kingdom, 21 February 1986, Series A no. 98. 54 § 46 of the judgment. 55 Stec and O thers v. the United Kingdom [GC], no. 65731/01, ECHR 2006-VI. 56 Jahn and O thers v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, ECHR 2005-VI. Compare Althoff and O thers v. Germany, no. 5631/05, 8 December 2011. 57 cited above. 58 [GC], no. 58278/00, ECHR 2006-IV.

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(5) Impact of the consensus The notion of consensus, in the context of the European Convention on Human Rights, is generally understood as a basis for the evolution of Convention norms through the case-law of the European Court of Human Rights59. This notion was identified for the first time in Tyrer v. the United Kingdom60, where the Court found that judicial corporal punishment was a degrading punishment within the meaning of Article 3 of the Convention and indicated that it could not but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field61. To express the inherent dynamic nature of the Convention, the Court described it in that judgment as a living instrument which ... must be interpreted in the light of present- 62. The

Preamble to the Convention states that it was adopted with a view, in particular, to the further realisation of human rights and fundamental freedoms. It is thus clear that the substantive content of the rights and freedoms enumerated by the Convention is not cast in stone and that it must evolve in line with progress in the legal, social and scientific fields. An evolutive interpretation of the Convention allows its norms to be adapted to the new challenges created by the complex development of European societies63. The notion of consensus also reflects the delicate balance that has to be struck in the relationship between the Strasbourg system and domestic systems,

a well-known formula taken, mutatis mutandis, from Handyside v. the United Kingdom64. It confers a certain legitimacy on new developments and facilitates their reception in domestic legal orders. It encourages the Court to be bold or, on the contrary, restrained in its interpretation of the Convention. In other words, the broader the consensus surrounding an issue, the narrower the margin of appreciation available to governments65. Whilst it may be said that the Court is more inclined to show self-restraint in the absence of a consensus66, the adoption of innovative solutions to questions on which there is no consensus may, on the contrary, be perceived as a sign of judicial activism67. The case-law is full of examples where the Court has relied on the existence of a consensus to justify a dynamic

59 A. Kovler,

Dialogue between Judges, European Court of Human Rights, Strasbourg, Council of Europe, 2008, p. 15. 60 Tyrer v. the United Kingdom, 25 April 1978, Series A no. 26. 61 § 31 of the judgment. 62 ibid. See D. Spielmann, M. Tsirli and P. Voyatzis (eds.), The European Convention on Human Rights, a living instrument, Essays in Honour of Christos L. Rozakis, Brussels, Bruylant, 2011. 63 D

Liber amicorum Luzius Wildhaber, 2007, pp. 371 et seq. For a recent case concerning the failure to recognise a foreign adoption decision, see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, ECHR 2007-VII (extracts). See also, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002-VI. 64 Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24 65 L. Wildhaber, place et de la Convention Istanbul on 19 May 2004; published in Bulletin des droits de l'homme, Institut Luxembourgeois des droits de

-54. 66 It should be noted, for example, that in Evans v. the United Kingdom ([GC], no. 6339/05, ECHR 2007-IV) the

Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of

also supra, no. 48. 67 See for example Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI.

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interpretation of the Convention. In its judgment in the Dudgeon v. the United Kingdom68 case, concerning the existence of laws which had the effect of making certain homosexual acts between consenting adult males criminal offences, it expressed the following view:

understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied69 .

In its judgment L. and V. v. Austria70 concerning the age of consent for homosexual relations between male adolescents and adult men, the Court commented as follows:

Government, that there is an ever growing European consensus to apply equal ages of consent 71

However, the Court generally takes the view that where there is no common European approach it is unable to impose a given solution on the respondent State72. This was the case in the judgment of T. v. the United Kingdom73:

responsibility in Europe. ... Moreover, no clear tendency can be ascertained from examination of the relevant international texts and instruments ... The Court does not consider that there is at this stage any clear common standard amongst the member States of the Council of Europe as to the minimum age of criminal responsibility. ... The Court concludes that the attribution of criminal responsibility to the applicant does not in itself give rise to a breach of Article 3 of the

74 It adopted a similar line of reasoning in the case of Odièvre v. F rance75:

47. most of the Contracting States do not have legislation that is comparable to that applicable in France, at least as regards the child's permanent inability to establish parental ties with the natural mother if she continues to keep her identity secret from the child she has brought into the world. However, ... some countries do not impose a duty on natural parents to declare their identities on the birth of their children and ... there have been cases of child abandonment in various other countries that have given rise to renewed debate about the right to give birth anonymously. In the light not only of the diversity of practice to be found among the legal systems and traditions but also of the fact that various means are being resorted to for abandoning children, the Court concludes that States must be afforded a margin of appreciation to decide which measures are apt to ensure that the rights guaranteed by the Convention are

.

68 Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45, pp. 23-24, § 60. 69 § 60 of the judgment. 70 L. and V. v. Austria, nos. 39392/98 and 39829/98, ECHR 2003-I. 71 § 50 of the judgment. 72 For example, F retté v. F rance, no. 36515/97, ECHR 2002-I; Odièvre v. F rance [GC], no. 42326/98, ECHR 2003-III; and Schwizgebel v. Switzerland, no. 25762/07, §§ 92-94, ECHR 2010. 73 T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999. 74 §§ 71-72 of the judgment. 75 Odièvre v. F rance [GC], no. 42326/98, ECHR 2003-III.

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In Vo v. F rance76 the Court observed as follows:

84. At European level, ... there is no consensus on the nature and status of the embryo and/or foetus ..., although they are beginning to receive some protection in the light of scientific progress and the potential consequences of research into genetic engineering, medically assisted procreation or embryo experimentation. At best, it may be regarded as common ground between States that the embryo/foetus belongs to the human race. The potentiality of that being and its capacity to become a person enjoying protection under the civil law, moreover, in many States, such as France, in the context of inheritance and gifts, and also in the United Kingdom ...

. Lastly, the Court took the view in Evans v. the United Kingdom77 concerning the destruction of frozen embryos following the withdrawal of consent by the gamete provider to the use of those embryos for medically assisted procreation that:

92. ... given the lack of European consensus on this point, the fact that the domestic rules were clear and brought to the attention of the applicant and that they struck a fair balance between the competing interests, there has been no violation of Article 8 of the Convention.

A clear trend or a mere emerging consensus, is most of the time not enough. For example, concerning gamete donation for the purpose of in vitro fertilisation, the Court held in S. H . v. Austria78:

The Court would conclude that there is now a clear trend in the legislation of the Contracting States towards allowing gamete donation for the purpose of in vitro fertilisation, which reflects an emerging European consensus. That emerging consensus is not, however, based on settled and long-standing principles established in the law of the member States but rather reflects a stage of development within a particularly dynamic field of law and does not decisively narrow the margin of appreciation 79

However, in certain cases the absence of a common legal approach has not prevented the Court from observing the existence of a general trend. Thus in its Christine Goodwin judgment of 11 July 200280, concerning the absence of legal recognition of a sex change and the inability for a post-operative transsexual to marry someone of the opposite sex, the Court found as follows:

85. The Court observes that in the case of Rees in 1986 it had noted that little common ground existed between States, some of which did permit change of gender and some of which did not and that generally speaking the law seemed to be in a state of transition (see § 37). In the later case of Sheffield and Horsham, the Court's judgment laid emphasis on the lack of a common European approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection. While this would appear to remain the case, the lack of such a common approach among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising. In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created

76 Vo v. F rance [GC], no. 53924/00, ECHR 2004-VIII. 77 Evans v. the United Kingdom [GC], no. 6339/05, ECHR 2007-IV. 78 S.H . and O thers v. Austria, [GC], no. 57813/00, 3 November 2011. 79 See however, the joint dissenting opinion of Judges Tulkens, Hirvelä, Lazarova Trajkovska and Tsotsoria. 80 Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI.

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by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation. The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.

In Hirst v. the United Kingdom81 concerning the exclusion of convicted prisoners from voting in parliamentary and municipal elections, the Court made the following comments:

As regards the existence or not of any consensus among Contracting States, the Court notes that, although there is some disagreement about the legal position in certain States, it is undisputed that the United Kingdom is not alone among Convention countries in depriving all convicted prisoners of the right to vote. It may also be said that the law in the United Kingdom is less far-reaching than in certain other States. Not only are exceptions made for persons committed to prison for contempt of court or for default in paying fines, but unlike the position in some countries, the legal incapacity to vote is removed as soon as the person ceases to be detained. However, the fact remains that it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no

number of such States does not exceed thirteen. Moreover, and even if no common European

The Court nevertheless found, in A. B. and C . v. Ireland (16 December 2010)82, despite the fact that amongst a majority of member States of the Council of Europe there was a consensus in favour of authorising abortions on broader grounds than those accorded by Irish law, that the wide margin of appreciation available to the Irish Government was not decisively narrowed as a result83. unborn necessarily translated into a margin of appreciation of similar breadth when it came to balancing the rights of the unborn with conflicting rights of the mother84.

81 Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX. 82 A, B and C v. Irland [GC], no. 25579/05, ECHR 2010. 83 §§ 233-36 of the judgment. 84 § 237 of the judgment. For criticism of these findings, see the joint partly dissenting opinion of Judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi, points 5 and 6:

According to the Convention case-law, in situations where the Court finds that a consensus exists among European States on a matter touching upon a human right, it usually concludes that that consensus decisively narrows the margin of appreciation which might otherwise exist if no such consensus were demonstrated. This

-law: indeed, one of the paramount functions of the case-law is to gradually create a harmonious application of human rights protection, cutting across the national boundaries of the Contracting States and allowing the individuals within their jurisdiction to enjoy, without discrimination, equal protection regardless of their place of residence. The harmonising role, however, has limits. One of them is the following: in situations where it is clear that on a certain aspect of human rights protection, European States differ considerably in the way that they protect (or do not protect) individuals against conduct by the State, and the alleged violation of the Convention concerns a relative right which can be balanced in accordance with the Convention against other rights or interests also worthy of protection in a democratic society, the Court may consider that States, owing to the absence of a European consensus, have a (not unlimited) margin of appreciation to themselves balance the rights and interests at stake. Hence, in those circumstances the Court refrains from playing its harmonising role, preferring not to be 6. Yet in the case before us a European consensus (and, indeed, a strong one) exists. We believe that this will be

-law that Strasbourg considers that such consensus does not narrow the

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The existence or absence of a consensus may also play an important role, but without necessarily being decisive in all cases85. It is possible to look into the reasons for the existence or absence of a consensus in terms of finding a solution to the problem86. Whilst it is easier to identify a consensus in the light of State practice (legislation, case-law, administrative practice), the absence of a consensus may have a variety of reasons (e.g. significant divergence in practices, lack of official positions on very new issues). (6) Impact of proportionality principle

or absence thereof on the margin accorded? This is probably the most important and perhaps even decisive factor. Being closely linked to the principle of effective protection, the proportionality principle constitutes the strongest bulwark against the over-use of the margin of appreciation doctrine87. In order to assess the proportionality of an interference with a right, it is appropriate to examine its impact on that right, the grounds, the consequences for the applicant and the context. As regards the grounds for the interference, the importance of the local circumstances and the difficulty of objectively assessing the respective weight of conflicting aims play a major role. It is for the State to justify the interference. The grounds must be , the need for a restriction must be , any exceptions must be construed strictly . This point can be demonstrated by two examples, one related to freedom of expression, the other to the right of access to a court. The use of the proportionality principle as the decisive factor is particularly well illustrated by the judgment in and (17 December 2004)88 concerning the conviction of journalists, together with their disqualification from professional activities, for defamation:

85 It should be pointed out, moreover, that there may be disagreement between judges as to the existence of a consensus. See the dissenting opinion of Judge Malinverni, joined by Judge Kaladjieva, in the Lautsi the present case it is by relying mainly on the lack of any European consensus that the Grand Chamber has allowed itself to invoke the doctrine of the margin of appreciation (see paragraph 70). In that connection I would observe that, besides Italy, it is in only a very limited number of member States of the Council of Europe (Austria, Poland, certain regions of Germany (Länder) see paragraph 27) that there is express provision for the presence of religious symbols in State schools. In the vast majority of the member States the question is not specifically regulated. On that basis I find it difficult, in such circumstances, to draw definite conclusions regarding a European Lautsi v. Italiy [GC], no. 30814/06, 18 March 2011. 86 This question was raised by Judge Finlay Geoghean in her concurring opinion appended to A, B and C v. Ireland ation in force. The Court had no facts before it relating to the existence or otherwise of a legal protection for or right to life of the unborn or any identified public interest arising out of profound moral values in relation to the right to life of the unborn in any of the majority Contracting States. Further, and importantly, there were no facts before the Court which, in my view, permit it to deduce that the abortion legislation in force in the majority Contracting States demonstrates either a balance struck in those Contracting States between relevant competing interests, or the existence of a consensus amongst those Contracting States on a question analogous to that in respect of which the margin of appreciation under consideration relates i.e. the fair balance to be struck between the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect

87 S. van Drooghenbroeck, La proportionnalité dans le droit de la Convention européenne des droits de

Brussels, Bruylant and Publications des facultés universitaires Saint- Louis, 2001; P. Muzny, La technique de proportionnalité et le juge de la Convention européenne des droits de

- Marseille, 2005. 88 , no. 33348/96, 17 December 2004.

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m of expression may have been justified by the concern to restore the balance between the various competing interests at stake, the criminal sanction and the accompanying prohibitions imposed on them by the national courts were manifestly disproportionate in their nature and severity to

121. The Court concludes that the domestic courts in the instant case went beyond what would have amounted to a necessary restriction on 122.

Similarly, any disproportionate interference with the right of access to a court entails a violation of Article 6 of the Convention, as shown in the Kart v. Turkey judgment of 24 April 200889:

The right of access to a court secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I). The right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court ...

(7) Comprehensive analysis by superior national courts Pursuant to a recent trend in the jurisprudence of the European Court of Human Rights judicial self-restraint should prevail in the event that superior national courts have analysed in a comprehensive manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom. The Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation contrary to their view, that there was arguably a right recognised by domestic law.90 In the recent judgments of Springer91 and Von Hannover (no. 2)92 (7 February 2012), the Court held:

-law, the Court would require strong reasons to substitute its view for that of the 93

89 Kart v. Turkey [GC], no. 8917/05, § 79, ECHR 2009; see also, for example, Kemp and O thers v. Luxembourg, no. 17140/05, 24 April 2008. 90 Roche v. the United Kingdom [GC], no. 32555/96, § 120, ECHR 2005-X. See also MGN Limited v. the United Kingdom, no. 39401/04, § 1

Nu berger, Laffranque and Sicilianos, assisted by R. Liddell, 27 January 2012). 91 Axel Springer AG v. Germany [GC], no. 39954/08, 7 February 2012 92 Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, 7 February 2012 93 § 88 (Springer) and § 107 (Von Hannover (no. 2)). See also Palomo Sánchez and O thers v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, 12 September 2011.

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Asking herself if Strasbourg or the Supreme Court is Supreme, Baroness Hale proposes in a recent article as follows Convention rights, the Court should be particularly cautious about interfering with the way in which the national courts have struck the balance when they have been applying the

94 . As said, recent Strasbourg case-law seems to meet this concern95. I V . Second-degree or reverse margin of appreciation: distr ibution of powers between domestic authorities Is there a second-degree reverse margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? A case recently heard by the Grand Chamber raises the issue in a rather atypical manner. This brings me back to the subject of derogations in time of emergency and counter-terrorism measures. In the case of A. and O thers v. the United Kingdom, on which the Court ruled on 19 February 200996, the applicants complained that they had been detained in high-security conditions for an indeterminate period under legislation providing for the pre-charge detention of foreign nationals who were, as certified by the Secretary of State, suspected of involvement in terrorist activities. The applicants also brought proceedings to challenge the legality of the Derogation Order of November 2001. Those proceedings ended with a judgment handed down on 16 December 2004 by the House of Lords97, which found that there was an emergency threatening the life of the nation, but that the detention regime did not rationally address the threat to security and was a disproportionate response to that threat. The majority found, in particular, that there was evidence of United Kingdom nationals also being involved in Al-Qaeda networks and that Part 4 of the 2001 Act was therefore unjustifiably discriminatory against foreigners. The House of Lords thus granted a quashing order in respect of the Derogation Order and a declaration under section 4 of the Human Rights Act. The legislation in question nevertheless remained in forced until it was repealed by Parliament in March 2005. Interestingly, assessment in the Strasbourg proceedings. The Court found that there had been a violation of various provisions of Article 5 of the Convention, thus endorsing the position of the House of Lords. In the unusual circumstances of the case, where the highest domestic court had examined the issues relating to the State s derogation and had concluded that there was a public emergency threatening the life of the nation but that the measures taken in response were not strictly required by the exigencies of the situation, the Court considered that it would be justified in reaching a contrary conclusion only if satisfied that the national court had misinterpreted or misapplied Article 15 or the Court s jurisprudence under that Article or had reached a conclusion which was manifestly unreasonable98. Struck by the fact that the United Kingdom was the only Convention State to have lodged a derogation in response to the danger from al-Qaeda, the Court nevertheless accepted that it was for each Government, as the guardian of their own people s safety, to make their own assessment on the basis of the facts known to them99. The Court therefore found that weight should attach to the judgment of 94 Argentoratum Locutum Human Rights Law Review, 2012, pp. 65-78, at 77. 95 European Human Rights Law Review, 2011, pp. 505-12, at 511. 96 A. and O thers v. the United Kingdom [GC], no. 3455/05, ECHR 2009 97 [2004] UKHL 56 98 § 174 of the judgment. 99 § 180 of the judgment.

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