The Inflation of the Margin of Appreciation by the European Court of Human Rights

Published date01 September 2011
Date01 September 2011
DOI10.1177/016934411102900304
Subject MatterPart A: Article
Netherlands Q uarterly of Human R ights, Vol. 29/3, 324–357, 2011.
324 © Netherla nds Institute of Human R ights (SIM), Printed in t he Netherlands.
THE INFLATION OF THE MARGIN OF
APPRECIATION BY THE EUROPEAN
COURT OF HUMAN RIGHTS
J K*
Abstract
e doctrine of the margin of apprec iation, despite being repeatedly u sed by the
European Court of Human Rights, is still to some extent mysterious. Given the doctrine’s
ambiguity, this article rst endeavours to describe it and identif y its dierent usages. It
then argues tha t there is an ination of the doctrine by its unnecessar y application
in a number of cases. is ex cessive use is consi dered to be unfortunate because the
doctrine has a role to play in specically circum scribed circumstances where it var ies
the strictne ss of scrutiny conducted b y the Court. Based on the existent case law of the
Court, the article provid es a set of distinct tests that the Court can apply when invoking
a particular margin of appreciation and argues for a predi ctable and consistent use of
the doctrine.
Keywords: margin of appreciation; European Court of Human Rights; cas e law;
deference; level of scrutiny
1. INTRODUCTION
e c ase law of the European Court of Human R ights (‘the Court’) abounds w ith
references to the margin of appreciation. Despite some severe criticism from scholars,1
* LL.M. (Notti ngham), Ph.D (Prag ue), currently an a ssistant lawyer at the Registr y of the Europe an
Court of Human Rights. I would like to thank a ll the person s that commented on earlier dra s of
the paper, in pa rticular S ergey Golubok and Dav id Kosař. Needles s to say all rema ining omissions
and errors rema in mine. e views e xpressed in this paper are strict ly my own. I would also l ike to
thank the Fulbr ight Commis sion for the ir nancia l support enabling me to conduct research for
this art icle. Email: jan .kratochvil@g mail.com.
1 See, e.g., Br auch, Jerey A., ‘e Margin of Appreciation and t he Jurisprudenc e of the European
Court of Human Ri ghts: reat to the Rule of Law’, Columbia Journ al of European Law, Vol. 11, No.
1, 2004–20 05, pp. 113–150; Letsa s, George, ‘ Two Concepts of the Margin of Appreciation’, Oxford
Journal of L egal Stu dies, Vol. 26, No. 4, 2006, pp. 705–732; Fei ngold, Cor a S., ‘e Doctrine of
Margin of Appreciation and th e European Convention on Human Rights’, Notre Dame Law Review,
e Ination of the M argin of Appreciation by t he European Court of Hu man Rights
Netherlands Q uarterly of Human R ights, Vol. 29/3 (2011) 325
and also occasionally from individua l judges of the European Court of Human Rights
(‘the Court’),2 the margin of appreciation spreads into areas where its use was deemed
unthink able only a few years ago.3 Nowadays, the Court applies it in its review of almost
all Art icles in the European Convention on Human Rights (‘the C onvention’).4
Despite this development and the generous use of the margin of appreciation (also
only ‘ma rgin’),5 it is still very much veiled i n a cloud of myster y. In 1993, Merril ls
noted that its application is ‘fraught with dicu lty’.6 In 2000, Greer commented that
‘no simple formula c an describe how it works’ a nd it has a ‘casuistic, uneven, and
largely unpredictable nature’.7 In essence, it is not clear exactly when the ma rgin
of appreciation should be u sed or what its limits and contours are. In add ition, the
consequences of invoki ng it are far from predic table or precise. Yet, the Court ’s only
scepticism towards the doctr ine of the margin of appreciation that can be found in its
case law, w ith the except ion of some diss enting opinions, is its unease w ith it being
used by national cour ts.8 e overu se of the doctrine ha s recently been a matter of
Vol. 53, 1977–78, pp. 90–106; and Stone, omas W., ‘Marg in of Appreciation Gone Awry: e
European C ourt of Human Rights’ Implicit Use of the Precaut ionary Principle in: Fretté v. Franc e
to Backt rack on Prot ection from Discriminat ion on the Basis of Sexual O rientation’, Connectic ut
Public Interest L aw Journal, Vol. 3, No. 1, 2003–2004, pp. 218–236.
2 See, e.g., Judge De Meyer in his dissenti ng opinion in ECtHR, Z . vs Finland, 25 Febru ary 1997,
Application No. 22009/93: ‘I bel ieve that it is high t ime for the Cour t to banish t hat concept [of
margin of appreciation] f rom its reasoni ng. It has already delayed too long in abandoning this
hackneyed phr ase and recanting t he relativism it impl ies’.
3 For a comprehensive over view of t he evolution of the doctri ne, see Yourow, Howard Charles, e
Margin of Appreciation Doct rine in the Dynamics of European Human Rights Jurispru dence, Kluwer,
e Hague, 1996.
4 See, e.g., under Ar ticle 2: ECtH R, Budayeva vs Russia, 20 Ma rch 2008, Appl ication Nos. 15339/02;
11673/02; 15343/02; 20058/02 and 21166/02 or Vo vs France (Gra nd Chamber), 8 July 2004,
Application No. 53924/0 0 and under A rticle 3: M.C. vs Bulgaria , 4 December 2003, Applic ation
No. 39272/98 and Wilkinson vs the United Kingdom, 2 8 February 2006, Applicat ion No. 14659/02.
Moreover, the doctrine is s preading b eyond the Court to other internationa l judicial and quasi-
judicial bodies. On t he use of t he doctrine outside the Court see S hany, Yuval, ‘Toward a G eneral
Margin of Appreciation Doctri ne in International Law?’ European Journal of International Law, Vol.
16, No. 5, 2005, pp. 907–940. On uses of the doctrine b y the European C ommittee of Soc ial Rights
see Cullen, Holly, ‘e Collect ive Complaints System of the European Socia l Charter: Interpretat ive
Methods of the E uropean Com mittee of Social Rights’, Human Rights Law Review, Vol. 9, No. 1,
2009, pp. 61–93, at p. 88. Margin of dis cretion is also used in the W TO system: the appellate panel
used it in the context of evalu ating ev idence i n Appellat e Body Report, European Communities
– Measu res Aecting Asbestos and Asbesto s-Containing P roducts, W T/DS135/AB/R, 5 April 2 001,
DSR 2001:VII, 3243, para. 161.
5 Only in t he rst half of 2009 it was used 108 time s by the Court in the judgments and decisions
published in HU DOC.
6 Merrills, J. G., e Development of International Law by the Europe an Cour t of Human Rights,
Manchester Univers ity Press, Manchest er, 1993, p. 151.
7 Greer, Steve n, e Margin of Appreci ation: Interpretati on and Discretion u nder the European
Convention on Human Ri ghts, Council of Europ e Publishing, Str asbourg, 2000 , p. 5.
8 A. and Others vs the United Kingdom (Grand Chamber), 19 February 2009, Application No. 3455/05,
para. 184: ‘e doctrine of the margin of appreciation has a lways been meant as a tool to dene
relations b etween the domestic author ities and the Cour t. It can not have the same appli cation to
Jan Kratochv íl
326 Intersentia
some apprehension from individual judges of t he Court . In Egeland and Hanseid
Judge Rozakis said i n his concurring opinion that the ma rgin of appreciation is oen
used by the Court automatic ally and unnecessari ly.9 Indeed, the automatic use of the
doctrine was a lready criticised by Feingold in 1977.10
e rst aim of this article is to shed some light on the doct rine. By looking at
examples of the Court ’s case law, dierent usa ges of the doctrine wi ll be identi ed.
e article wil l then show that, in many instance s, the doctrine is used unnecessar ily.
Accordingly, one can rightly talk about an inated use of the doctr ine accompanied
by a danger of it losing its value. Next, the article will deal with the need to set clear
consequences for invoking the ma rgin of appreciation. e article wi ll conclude with
suggestions for the Cour t on its use.
2. THE CONCEPT AND THE DIFFERENT USES OF THE
DOCTRINE
According to Carozza, the ma rgin of appreciation is rooted in subsidiarity.11 In
Ireland vs the United Kingdom the Court d escribed the rationale for the marg in of
appreciation as ‘[b]y reason of their direct and continuous contact w ith the pressing
needs of the moment, the national authorities are in principle in a better position than
the internationa l judge to decide both on the presence of such an emergency and on
the nature and scope of derogations nec essary to avert it’.12 is is a standard dict um
to the present day.13 Greer agrees that the main rationale of t he doctrine is the ‘better
position ration ale’14 but identies others as democrac y (deference to democratic
decision making in Member States), subsidiarity and proportiona lity.15 However,
he doe s not explain how deference ows from t he principle of proportionalit y. He
assumes that it is self-evident by saying t hat the former automatically ows f rom the
latter.16 Nevertheless , it is not at all clear, why applying the principle of proportionality
the relation s between the organs of State at the domest ic level’. Simila rly, Greer in 20 00 expressed
the opinion that t he doctrine ca n have ‘no direct domestic applic ation’ (Greer, op.cit note 7, p. 34).
9 Egeland and Hanseid vs Norway, 16 April 2 009, Application no. 34438/04, Conc urring Opinion of
Judge Rozaki s.
10 Feingold, loc.cit note 1, p. 96.
11 Carozza , Paolo G., ‘Subsidiarit y as a Structu ral Principle of Inte rnational Human Rights Law’,
American Journal of Inter national Law, Vol. 97, No. 1, 2003, pp. 38–79, at p. 40. See a lso, Gerards ,
Janneke H., Judic ial review in equal tre atment cases, Nijho, Leid en/Boston, 2005, p. 166.
12 Ireland vs the United Kingdo m, 18 January 1978, Applicat ion No. 5310/71, para. 207.
13 See e.g. Zehent ner vs Austria, 16 July 20 09, Application No. 20082/02 , para. 57.
14 Greer, op.cit note 7, p. 34.
15 Ibidem, p. 23 and 24.
16 Ibidem, p. 22 and 32.

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