The Margin of Appreciation Doctrine in the Jurisprudence of Article 8 of the European Convention on Human Rights
| Author | Yutaka Arai |
| Published date | 01 March 1998 |
| Date | 01 March 1998 |
| DOI | http://doi.org/10.1177/092405199801600104 |
| Subject Matter | Article |
41
The Margin of Appreciation Doctrine in the Jurisprudence of
Article 8 of the EuropeanConvention on Human Rights
Yutaka Arai •
Abstract
The margin
of
appreciation is a measure
of
discretion allowed to the Member States in
the manner that they implement the standards
of
Commission and Court
of
Human Rights are entrusted with the balancing between the
Europe-wide 'uniform' approach on one hand and the need to defer to the national
Sovereignty and to various local values deriving from cultural, religious, and socio-
economic diversity on the other. By analysing the interplay between strictness
of
scrutiny
and the width
of
the margin
of
appreciation in the case-law
of
Article 8, the author
attempts to identify the underlying policy grounds for the margin
of
appreciation under
Article 8. He argues that there are certain policies which affect the judicial self-restraint
and those which uphold the active review in the jurisprudence
of
Article 8.
IIntroduction
Article 8
of
the European Convention on HumanRights protects four connected rights:
the right to private and family life and the right to respect for home and correspondence. I
When the Strasbourg organs find a particular measure to amount to 'interference' with the
rights embodied under the first paragraph
of
Article 8, they must consider whether such
an interference may be justified in accordance with criteria laid down in the second
paragraph. The standard formula developed in the case-law is common to other personal
freedom rights set out in Articles 9-11. A violation
of
Article 8 exists unless the
Ph.D. Candidate, Faculty of Law, University of Cambridge (Queens' College); LL.M., University of
Cambridge (1994); LL.M., Keio University (1993). I wish to express my special thanks to Professor James
Crawford for his helpful comments on earlier drafts.
As regards Article 8 of the Convention, see A.M. Connelly, 'Problems of Interpretation of Article 8 of the
European Convention on Human Rights', 35 ICLQ, 1986, p. 567; G. Cohen-Jonathan, La Convention
Europeenne des Droits de I'Homme, Economica, Paris, 1989, pp. 354-393; 'Respect for Private and Family
Life', in:
R.StJ.
Macdonald, F. Matscher and H. Petzold (eds), The European System
for
the Protection
of
Human Rights, Martinus Nijhoff, Dordrecht, 1993, Chapter16; P. van Dijk and G.J.H. van Hoof, Theory
and Practice
of
L. Doswald-Beck, 'The Meaning of the 'Right to Respect for Private Life' under the European Convention
on Human Rights', 4 HRLJ, 1983, p. 283; D. Evrigenis, 'Recent Case-law of the European Court
of
Human
Rights on Articles 8 and 10 of the European Convention on Human Rights', 3 HRLJ, 1982, p. 121; D.
Feldman, 'The Developing Scope
of
Article 8 of the European Convention on Human Rights', 2 EHRLR,
1997, p. 265; D. Gomien, D.Harris andL. Zwaak, Law and Practice
of
Rights and the European Social Charter, Council of Europe Publishing, Strasbourg, 1996, pp. 227-261; D.J.
Harris, M. O'Boyle and C. Warbrick, Law
of
of
the European
Court
of
Human Rights 1960-1994, Vol. I, pp. 507-638, Martinus Nijhoff, The Hague, 1996; L.G. Loucaides,
'Personality and Privacy under the European Convention on Human Rights', 61 BYIL, 1990, p. 175; A.H.
Robertson (ed.), Privacy and Human Rights, Manchester, 1973.
Netherlands Quarterly
of
Human Rights, Vol. 16/1, 41-61, 1998.
Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands.
NQHR / /
/998
interference: (i) is 'in accordance with the law'; (ii) has a legitimate aim and; (iii) is
necessary in a democratic society.
Detailed principles have been developed as regards the common expression 'necessary
in a democratic society' in Articles 8-11. In the Silver Case, the Court summed up the four
principles deriving from the requirement
of
democratic necessity.'
(a)
(c)
(b)
(d)
the adjective
'necessary'
is not synonymous with
'indispensable',
neither has it the
flexibility
of
such
expressions as
'admissible',
'ordinary',
'useful',
'reasonable'
or
'desirable';
the Contracting States enjoy acertain
but
not
unlimited margin
of
appreciation in the
matter
of
the imposition
of
restrictions,
but
it is for the
Court
to give the final ruling on
whether
they are compatible with the Convention;
the phrase 'necessary in a democratic society'
means
that, to be compatible
with
the
Convention, the interference must,
inter
alia, correspond to a
'pressing
social
need'
and
be 'proportionate to the legitimate
aim
pursued'
and;
those paragraphs
of
Articles
of
the Convention which provide for an exception to a right
guaranteed are to be narrowly interpreted.
In assessing whether there exists a pressing social need, the Convention bodies have
allowed national authorities a margin of appreciation. The margin of appreciation doctrine
is one
of
a number
of
techniques used to justify abstention from fully-fledged review
of
the merits.'
Silver and Others v. the United Kingdom, Judgment of 25 March 1983, A.61, para. 97.
As to the margin of appreciation doctrine in general, see R. Bernhardt, 'Intemationaler Menschenrechtsschutz
und nationaler Gestaltungsspielraum', in: R. Bernhardt, W.K. Geek, G. Jaenicke and H. Steinberger (eds),
Volkerrecht als Rechtsordnung, internationale Gerichtbarkeit, Menschenrecht, -Festschrift fur Hermann
Mosler -, Springer, Berlin, 1983, p. 75; E. Brems, 'The Margin
of
Appreciation Doctrine in the Case-Law
of the European Court of Human Rights', 56 Zeitschriftfilr ausltindisches offentliches Recht und Volkerrecht
(ZailRV), 1996, p. 240;Cohen-Jonathan,op.cit. (note I), pp. 187-193 and549-552; M. Delmas-Marty, 'The
Richness of Underlying Legal Reasoning', in: M. Delmas-Marty (ed.), The European Conventionfor the
Protection
of
Human Rights, International Protection versus National Restrictions, Martinus Nijhoff,
Dordrecht, 1992, pp. 319-341; Van Dijk and Van Hoof, op.cit. (note I), pp. 585-606; T.A. O'Donnell, 'The
Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights',
4 Human Rights Quarterly, 1982, p. 474; K. Hailbronner, 'Die Einschrankung von Grundrechten in einer
demokratischen Gesellschaft - Zu den Schrankenvorbehalten der Europaischen Menschenrechtskonvention
-',
in: Bernhardt et al. (eds), supra, p. 359; Harris, O'Boyle and Warbrick, op.cit. (note I), pp. 12-15, and
283-301; R. Higgins, 'Derogations under Human Rights Treaties', 48 BYIL, 1976-1977, p. 281, atpp. 296-
315; E. Kastanas, Unite et Diversite: notions autonomes et marge d'appreciation des Etats dans la
jurisprudence de la Cour europeenne des droits de l'homme, Bruylant, Brussels, 1996; R. Koering-Joulin,
'Public Morals', in: Delmas-Marty (ed.), supra, pp. 83-98; N. Lavender, 'The Problem of the Margin of
Appreciation',4 EHRLR, 1997, p. 380; P. Mahoney, 'Judicial Activism and Judicial Self-Restraint in the
European Court of Human Rights: Two Sides of the Same Coin', II HRLJ, 1990, p. 57; R.St.J. Macdonald,
'The Margin of Appreciation in the Jurisprudence of the EuropeanCourt of Human Rights', in: Intemational
Law at the Time
of
its Codification. Essays in Honour
of
Roberto Ago, Vol. 3, Dott. A. Giuffre Editore,
Milan, 1987, p. 187; and 'The Margin of Appreciation' in: RSt.J. Macdonald, F. Matscher and H. Petzold
(eds), The European System for the Protection
of
Human Rights, 1993, Chapter6; F. Matscher, 'Methods
of
Interpretation of the Convention' in: Macdonald et al. (eds), supra, Chapter 5; J.G. Merri1ls, The
Development
of
International Law by the European Court
of
Human Rights, 2nd ed., Manchester University
Law', 6Revue des Droits de l'Homme (Human Rights Journal), 1973, p. 263; F. Reindel, Auslegung
menschenrechtlicher Vertriige am Beispiel der Spruchpraxis des Ulv-Menschenrechtsausschusses, des
Europdischen und des amerikanischen Gerichthofs fur Menschenrechte, V. Florenz, Munich, 1995; H.J.
Steiner and P. Alston, International Human Rights in
Context-
Law, Politics, Morals -Text and Materials,
Clarendon, Oxford, 1996, pp. 600-639; H.C. Yourow, 'The Margin of Appreciation Doctrine in the Dynamics
of European Human Rights Jurisprudence', 3 Connecticut JIL, 1987, p. 111; and The Margin
of
Appreciation
42
Arai /The Margin
of
Appreciation Doctrine
The paper begins by analysing the interplay between strictness
of
scrutiny and the
width
of
the margin
of
appreciation. In doing so, it seeks to analyse the underlying policy
grounds for the margin
of
appreciation doctrine under Article 8. The subsequent survey
shows that there are both general and particular policies underlying the margin
of
appreciation on one hand and those upholding the active review on the other.
II Strictness of Scrutiny
The strictness
of
scrutiny may be identified by various indicators. These include the
admissibility requirements set out in Articles 25-27, in particular, the claim to be a
'victim' within the meaning
of
Article 25, the vigour and thoroughness
of
the assessment
of proportionality and the shifting
of
the burden
of
proof. In particular, the proportionality
test constitutes the most important yardstick for evaluating whether the national authorities
have overstepped the margin
of
appreciation. Various interpretative principles have been
developed for the assessment
of
proportionality. These include the sufficiency test, the
doctrine
of
less restrictive alternatives, the comparative method and evolutive
interpretation.
A. Claims to be the 'Victim' of a Violation within the Meaning of Article 254
The Strasbourg organs have recognised applicants as potential victims despite the absence
of any specific measure taken against them. The relaxed approach to whether an applicant
can claim to be the 'victim'
of
a violation within the meaning
of
Article 25 occurs in the
Context
of
Article 8.5This indicates the Strasbourg organs' determination to apply a strict
standard
of
review to the issues concerning Article 8. In cases
of
surveillance, the Court
admitted complaints relating to a German law authorising the national authorities to carry
out secret surveillance
of
communications," and to laws and practices
of
interception and
metering
of
communications in England and Wales.? In these cases, no concrete measures
had actually been taken against the applicants, but the mere existence
of
laws and practices
Was considered sufficient to amount to an interference. In the
Marckx
Case, which
concerned discrimination against children born out
of
wedlock, the Court rejected
Belgium's preliminary plea, reiterating that 'Article 25
of
the Convention entitles
individuals to contend that a law violates their rights by itself, in the absence
of
an
Doctrine in the Dynamics
of
European Human Rights Jurisprudence, Martinus Nijhoff, The Hague, 1996.
For the relaxed approach to the claim of being a 'victim' within the meaning of Article 25, see Gomien et
al., op.cit. (note I), pp. 43-47.
In the context of Article 10, see, in particular, Open Door and Dublin Well Woman v. Ireland. Both the
Commission and Court rejected the respondent State's preliminary objection, allowing two women to join
the application. They noted that though not being pregnant at that time, these women, as those of child-
bearing age, could 'run a risk of being directly prejudiced' by the injunction preventing the corporate
applicants from imparting information onabortion facilities abroad: Judgmentof 29 October 1992, A.246-A,
para. 44.
Klass and Others v. Germany, Judgment of 6 September 1978, A.28.
Malone v. the United Kingdom, Judgment
of
2 August 1984, A.82, paras 64 and 86. In contrast, the
Commission applied a strict 'victim' test under Article 25 in relation to the complaint
of
'metering'. The
Commission did not consider it established that information obtained by metering was actually communicated
to the police. It held that an issue would arise under Article 8 only if it were shown that this happened in
practice; Commission's Report of 17 December 1982, para. 149.
43
NQHR
1/1998
individual measure of implementation, if they run the risk
of
being directly affected by
it'." In cases
of
homosexuals as well, the Strasbourg organs have relaxed the requirement
for an applicant to be considered a 'victim', noting that the mere existence
of
a law
criminalising private homosexual activities constitute an interference with the right to
private life,"
B. Thorough
and
Vigorous Assessment of Proportlonallty'"
Irrespective
of
the outcome, the thorough manner in which the merits of cases are
examined shows the Strasbourg organs' determination to carry out an assertive review. In
some cases, the Strasbourg organs may not be satisfied with the good faith
of
national
authorities, requiring an 'objective' standard" or 'reasonable' efforts12. Moreover, the
so-called 'cumulative' assessment indicates their willingness to adopt an active policy. One
factor in itself may not be disproportionate, but the aggregate of the whole measures taken
by national authorities may upset the balance. Cases regarding the custody
of
children13
reveal this technique.
Particular notice should be had to the vigour with which the proportionality test is
applied. In a number of cases in different fields, the Strasbourg organs have emphasised
that a proportionate balance is to be struck between the means and the legitimate aim
pursued. In addition, they have repeatedly maintained that a fair balance must be attained
between the interests
of
individuals and the general interests of society as a whole. On the
other hand, references to the proportionality test often appear to be a mere gesture, an
aspect of a relaxed review. The Convention organs may pay attention only to the
importance
of
the legitimate aim without fully evaluating the consequences of the
interference. The strict policy
of
review can be identified only in cases where the
proportionality is balanced in a manner that fully takes into account the 'effects' or
'consequences'
of
the interferences with the rights concerned." Cases concerning
immigrationI5and prisoners' rights to correspondence" show a close scrutiny
of
the
repercussions
of
restrictive measures on the applicants' rights.
Marckx v. Belgium, Judgment
of
13 June 1979, A.31, para. 27.
Dudgeon v. the United Kingdom, Judgment of 22 October 1981, A.45; Norris v. Ireland, Judgment of 26
October 1988, A.142; and Modinos v, Cyprus, Judgment of 22 April 1993, A.259.
10 For the examination of the proportionality principle under the European Convention in general, see M.
Eissen, 'The Principle
of
Proportionality in the Case-Law of the European Court of Human Rights', in:
Macdonald, Matscher and Petzold (eds), op.cit. (note 1), Chapter 7.
II Olsson v. Sweden
(No.1),
Judgment
of
24 March 1988, A.BO, para. 83.
12 Hokkanen v. Finland, Judgment of 23 September 1994, A.299-A, para. 62.
13 See Eriksson v. Sweden, Judgment
of22
June 1989, A.156; and Margareta and Roger Andersson v, Sweden,
Judgrnent of 25 February 1992, A.226-A.
14 In the Rasmussen Case, the Commission applied a strict standard of the proportionality test, stating that
'regard should be had not only to the purpose but also to the effect of the unequal treatment of the spouses
in the particular case': Rasmussen v. Denmark, Commission's Report of 5 July 1983, A.87, para. 87. See
also Dudgeon v. the United Kingdom, Judgment of 22 October 1981, A.45, para. 60.
13 In the Berrehab Case, the Court noted that 'the legitimate aim pursued has to be weighed against the
seriousness
of
the interference with the applicants' right to respect for their family life': Berrehab v. the
Netherlands, Judgment of 21 June 1988, A.138, para. 29. See also Moustaquim v. Belgium, Commission's
Report of 12 October 1989, A.l93, para. 61; and Beldjoudi v. France, Commission's Report
of6
September
1990, A.234-A, para. 63.
\6 See, for instance, Schbnenberger and Durmaz v. Switzerland, Judgment of 20 June 1988, A.l37.
44
Arai /The Margin
of
Appreciation Doctrine
C.
The
Sufficiency Test
In assessing proportionality, the Convention bodies have elaborated important doctrines.
In some cases, they ask whether there exist both relevant and sufficient reasons justifying
the interference at issue.'? The assessment
of
relevance raises few problems, since it is
Usually included in the evaluation
of
the second standard
of
legitimate aim. The
assessment
of
sufficiency may be more controversial. This notion is closely intertwined
with that
of
proportionality. Where there is no reason sufficient to justify the restrictions
at issue, the proportionality test will not be met. 18 In cases the sufficiency test is met, the
Strasbourg organs conclude that the measures are proportionate to the legitimate
aim."
Where the sufficiency test is invoked, the Strasbourg organs usually engage in a
scrupulous examination
of
the merits, noting that 'only very serious reasons' or 'only the
most pressing grounds' can justify the restrictions at issue." Cases involving custody
of
children may irreversibly affect the interests
of
the natural family and hence call for a
stringent scrutiny. Cases involving the most intimate aspect
of
private life, such as
regulation
of
homosexuality" and sexual offences against mentally handicapped
persons,22 also require astringent standard
of
scrutiny. In these cases, the Convention
bOdiesmay shift the burden
of
proof, requiring the national authorities to adduce sufficient
reasons for their action.
D. Less Restrictive Alternatives
In assessing the proportionality test, the Strasbourg organs may ask whether the measures
in question are the least restrictive alternative capable
of
achieving the same legitimate
aim. The existence
of
ameasure less restrictive
of
an individual's right may lead to a
violation
of
the proportionality test. Conversely, the rejection
of
the least restrictive
alternative doctrine indicates arelaxed approach, with a greater deference to the national
appreciation?3
In the cases concerning restrictions on prisoners' correspondence, the Strasbourg organs
have considered other less sweeping measures to be sufficient to attain the same
Objectives, thus finding a lack
of
proportionality." In the Rasmussen Case which
concerned time-limits for paternity proceedings imposed on husbands but not on wives,
the emphasis on the national 'margin
of
appreciation' led the Court to reject the less
restrictive alternative. In contrast to the Commission, the Court refused to take into
-
17 Dudgeon v. the United Kingdom, Judgment of 22 October 1981, A.45, para. 54.
18
" Ibidem, para. 61.
See, for instance, Laskey, Jaggard and Brown v. the United Kingdom, Judgment of 19 February 1997, 24
20 EHRR, 1997, p. 39, para. 49.
See, for instance, the cases concerning the custody of children: No. 9018/80, K v. the Netherlands, D&R 33,
p. 9, at p. 19; and No. 11588/85, U. and G.F. v. Germany, Decision of 15 May 1986, D&R 47, p. 259, at
2,
p.263.
22 See Dudgeon v. the United Kingdom, Judgment of 22 October 1981, A.45.
23 See X and
Yv.
the Netherlands, Judgment of 26 March 1985, A.91.
Rasmussen v. Denmark, Judgment of 28 November 1984, A.87, para. 41. In contrast, the Commission
recognised that the existence of the so-called 'doctrine of acknowledgment' in Danish law provided a less
restrictive alternative capable of achieving the same legitimate objective: Commission's Report
of
5 July
24 1983, A.87, para. 87.
See Campbell and Fell v. the United Kingdom, Commission's Report of 12 May 1982, A.80, para. 144; and
Campbell v. the United Kingdom, Judgment of 25 March 1992, A.233, paras 52-53.
45
NQHR
1/1998
account the 'doctrine
of
acknowledgment' under Danish law, which would have attained
the same purpose with less harm to the applicant's interests as putative father."
E. Comparative Method and Evolutive Interpretation"
In assessing the proportionality test, the Strasbourg organs in some cases have looked at
the practice
of
other Member Sates as a factor relevant to the assessment
of
the 'pressing
social need'
of
the impugned measure." Closely connected to the comparative method
is the tendency to formulate an 'evolutive interpretation' in parallel with the development
of
social attitudes towards a particular issue. The Strasbourg organs have often stressed
the need to interpret the Convention in a manner that keeps up with the development
of
the society," though to do so may conflict with the original purport
of
the drafters
expressed in the travaux preparatoires.
On issues affecting illegitimate children, the Court has adopted an evolutive
interpretation and rejected any scope for national appreciation
of
differential treatment on
the ground
of
'illegitimacy'.29 In the
Marckx
Case, the Court noted as follows:
... the
Court
recalls that this Convention
must
be interpreted in the light
of
present-day
conditions (...) In the instant case, the
Court
cannot
but
be struck by the fact that the domestic
law
of
the great majority
of
the
member
States
of
the Council
of
Europe has evolved and is
continuing to evolve, in
company
with
the relevant international instruments, towards full
juridical recognition
of
the
maxim
'mater semper certa est' .30
The Court's active policy can be seen from the emphasis it gave to the two European
treaties designed to eliminate discrimination against children born out
of
wedlock. Despite
the small number
of
the Contracting States, the mere existence
of
these treaties was in
itself considered as
'a
clear measure
of
common ground' for the progressive trend."
In cases involving homosexuality, the Strasbourg organs have recognised the need for
an evolutive interpretation, holding that the state
of
social development was such as to
render incompatible with Article 8 a law criminalising private homosexual conduct
2S Rasmussen v. Denmark, Judgment
of28
November 1984, A.87, para. 41. Compare the Court's approach with
the Commission's reliance on this doctrine: Commission's Report of 5 July 1983, A.87, para. 87.
26 For an examination
of
the so-called 'evolutive' or 'dynamic' interpretation, see Harris, O'Boyle and
Warbrick, op.cit. (note I), at pp. 7-9; Mahoney, loc.cit. (note 3), at pp. 60-76; Kastanas, op.cit. (note 3), at
pp. 306-332; F. Ost, 'The Original Canons of Interpretation of the European Court of Human Rights', in:
Delmas-Marty (ed.), op.cit. (note 3), p. 283, at pp. 292-303; and Reindel, op.cit. (note 3), at pp. 53-55 and
108-113.
27 In the Tyrer Case, the Court recalled that in most of the Member States, judicial corporal punishment was
abolished: Tyrer v. the United Kingdom, Judgment
of25
April 1978, A.26, para. 38. See also Soering v. the
United Kingdom, in which the Court noted that '[p)resent-day attitudes in the Contracting States to capital
punishment are relevant for the assessment whetherthe acceptable threshold of suffering or degradation has
been exceeded': Judgment of 7 July 1989, A.l61, para. 109.
28 The Court first relied on the so-called 'evolutive interpretation' in the Tyrer Case: '... the Convention is a
living instrument which (... ) must be interpreted in the light of present-day conditions. In the case now before
it the Court cannot 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 field.' Tyrer v. the United Kingdom, Judgment
of 25 April 1978, A.26, para. 31.
29 Marckx v, Belgium, Judgment of 13 June 1979, A.31, para. 41; Johnston
and
Others v. Ireland, Judgment
of 18 December 1986,
A.Il2,
para. 74.
30 Marckx v. Belgium, Judgment of 13 June 1979, A.31, para. 41.
31 Idem.
46
Arai /The Margin
of
Appreciation Doctrine
between consenting adults." By contrast, on issues
of
transsexualism, while recognising
the validity of this interpretative technique," the Strasbourg organs have not considered
that progress in science and social attitudes
of
itself permits them to adopt an evolutive
interpretation.34
F. Burden
of
Proof
Regard must also be had to the burden of proof. Shifting the burden from an applicant to
the respondent State indicates the seriousness of the rights involved and hence the need
for a stringent review. The censorship of a letter addressed by a legal counsel to a
defendant at criminal proceedings is a serious interference requiring the respondent State
to adduce weighty evidence of necessity."
Shifting the burden may also be seen in cases involving the most intimate aspect
of
private life. In the
Dudgeon
Case, which concerned a Northern Ireland law prohibiting
male homosexual conduct both in public and in private, the Court emphasised that in view
of 'a most intimate aspect of private life' interfered with, there must exist 'particularly
serious reasons' for justifying the interference at issue."
In cases concerning discrimination on the ground of sex, the respondent State must bear
the heaviest burden
of
proof. The Court has required 'very weighty reasons' to be shown
in order to justify difference in treatment." The weighty burden
of
proof also rests on
the national authorities in cases concerning discrimination on the ground of race. The
J2 In the Dudgeon Case, the Court noted as follows: 'As compared with the era when that legislation was
enacted, there is now a better 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 applied; the Court cannot
overlook the marked changes which have occurred in this regard in the domestic law
of
the member States
...' Dudgeon v. the United Kingdom, Judgment
of22
October 1981, A.45, para. 60.
II
In the Rees Case, the Court noted as follows: 'However, the Court is conscious of the seriousness of the
problems affecting these persons and the distress they suffer. The Convention has always to be interpreted
in the light of current circumstances (...) The need for appropriate legal measures should therefore be kept
underreview having regard particularly to scientific and societal developments.' Rees v. the United Kingdom,
Judgment of 17 October 1986, A.I06, para. 47.
J4 In the Cossey Case, the Court noted as follows: 'The Court has been informed of no significant scientific
developments that have occurred in the meantime; in particular, it remains the case (...) that gender
reassignment surgery does not result in the acquisition of all the biological characteristics
of
the other sex.
There have been certain developments since 1986 in the law of some of the member States
of
the Council
of Europe. However, the reports accompanying the resolution adopted by the European Parliament on 12
September 1989 ( ...) and Recommendation 1117 (1989) adopted by the Parliamentary Assembly of the
Council of Europe on 29 September 1989 (...) reveal ( ...) the same diversity of practice as obtained at the
time of the Rees judgment. Accordingly, this is still, having regard to the existence oflittle common ground
between the Contracting States, an area in which they enjoy a wide margin of appreciation (... ) Inparticular,
it cannot at present be said that a departure from the Court's earlier decision is warranted in order to ensure
that the interpretationof Article 8 on the point at issue remains in line with present-day conditions ... ' Cossey
as v. the United Kingdom, Judgment of 27 September 1990, A.184, para. 40.
Schonenberger and Durmaz v. Switzerland, Commission's Report
of
12 December 1986, A.137, paras 64
and 67.
J6 Dudgeon v. the United Kingdom, Judgment of 22 October 1981, A,45, para. 52. See also X and
Yv.
the
17 Netherlands, Judgment of 26 March 1985, A.91.
Abdulaziz, Cabales and Balkandali v. the United Kingdom, Judgment of 28 May 1985, A.94, para. 78;
Burghartz v. Switzerland, Judgment of 22 February 1994, A.280-B, para. 27.
47
NQHR
1/1998
Commission has held that such discrimination infringed the non-derogable right
of
freedom from degrading treatment under Article 3.38
III Particular Policies in Different Fields
The examination of the strictness of scrutiny, conducted in section II, reveals a number
of
particular policies underlying the margin
of
appreciation doctrine in various fields
protected by Article 8. In view of distinctive features revealed in each subject, this section
classifies the particular policies on the basis
of
subject-matter.
It
deals firstly with the
main issues relating to family relationships, such as children born out
of
wedlock and the
impacts
of
immigration. Secondly, as aspects of private life, it summarises the policy
approaches to the issues concerning homosexuals and transsexuals. Thirdly, as issues
which evidence a consistent policy
of
strict scrutiny, regard is had to surveillance and data
collection. Fourthly, this section treats the case-law relating to the rights of prisoners to
correspondence and family life, which shows another distinctive policy. Finally, it deals
briefly with the issues concerning the right to respect for home.
A. Children Born out of Wedlock
As regards cases
of
children born out of wedlock and related issues, the Strasbourg organs
adopt an assertive policy
of
review. A principal tool here is the evolutive interpretation.
In the Marckx Case, the Court emphasised that the very existence
of
the European treaties
designed to remove the discrimination against 'illegitimate' children, despite the small
number
of
State Parties to those treaties, was
'a
clear measure
of
common ground'
sufficient to warrant an evolutive interpretation." Seven years later, in the Johnston Case,
the Court relied on the evolutive interpretation and rejected any difference in treatment
solely on the ground
of
'illegitimacy'.40
Given the paramount importance of the interests of children, the review here is
rigorous, and the scope
of
the national margin correspondingly narrow. The Strasbourg
organs have repeatedly pointed out that 'respect for family life implies in particular (...)
the existence in domestic law of legal safeguards that render possible as from the moment
of
birth the child's integration in his family'. The Court accepts that national authorities
enjoy
'a
choice
of
various means' to achieve that purpose. But a law that fails to satisfy
this minimum requirement violates the first paragraph
of
Article 8, without the need for
evaluation under the second paragraph." No differential treatment against children on the
38 Nos 4403.4419170,
4422170, 4423170, 4434170,
44431704476-4478170,4486170,4501170 and4526-4530170
(joined), East African Asians v. the United Kingdom, Yearbook 13 (1970), p. 928, at p. 994; Commission's
report
of
14 December 1973 (made public by Resolution
of
21 March 1994), D&R 78-A, p. 5, paras 188-
195.
)9
March
v, Belgium, Judgment of 13 June 1979, A.31, para. 41.
40 Johnston and Others v. 1reland, Judgment of 18 December 1986, A.l12, para. 74.
41
March
v, Belgium, Judgment of 13 June 1979, A.31, para. 31. Judge Fitzmaurice criticised the majority's
position which called for no examination of the issue under the second paragraph, noting that: 'In my
opinion, however, paragraph 2 is also
material-
not because there was any concrete interference with the
applicants' lives on the part of the Belgian authorities - but because the reference to such (possible)
interference in paragraph 2 helps to elucidate paragraph 1 by suggesting the limits within which the Article
as a whole was intended to operate - i.e. to be applicable.' Dissenting opinion
of
Judge Sir Gerald
Fitzmaurice, ibidem, p. 39, at p. 41, para. 6.
48
Arai /The Margin
of
Appreciation Doctrine
ground
of
'illegitimacy' is permissible. The positive obligation flowing from 'respect' for
family life also requires that 'biological and social reality prevail over a legal
presumption'.42 In these areas, any reference to a national margin of appreciation remains
a mere gesture."
In contrast, the greater emphasis on the national 'margin of appreciation' may be seen
in assessing differences in treatment between husband and wife as regards, for example,
proceedings to contest paternity of a child born in wedlock. In the Rasmussen Case, the
Court's deference to national discretion corresponded to its refusal to adopt the evolutive
interpretation or to recognise a less restrictive alternative. The Danish legislature had
SUbsequently passed a new law, imposing the same time-limits on both husbands and
wives. Nevertheless, the Court recognised the validity
of
the Danish legislature's earlier
consideration that a mother's interests normally coincided with her child's, justifying time-
limits for contesting paternity imposed only on the husband." Moreover, 'having regard
to their margin
of
appreciation', the Court found that the national authorities did not
overstep the 'principle of proportionality' by not taking into account the 'doctrine of
acknowledgment' under Danish law, which was capable of achieving the same objective
with less affront to the value of the equality of the sexes."
8.
Immigration, Deportation and Expulsion
The underlying justification for a margin of appreciation on the issues
of
immigration is
the recognition that these issues go to a core 'sovereign' right
of
every State. The
Commission noted that
'it
is a legitimate interest and attribute of State sovereignty to
Control
the entry
of
immigrants and, if necessary, to limit the number
of
entrants, priority
being given to the close family
unit'."
Moreover, the national authorities must assess
how their limited resources can best be distributed to meet their citizens' needs.
In contrast to the cases involving immigration," the Strasbourg organs may adopt a
less deferential approach with respect to the cases
of
deportation and expulsion. Despite
the margin
of
appreciation 'inherently' derived from the 'sovereign' rights of the State,
the Strasbourg organs' assessment of the national discretion becomes stricter in cases
where an applicant has spent most of his life in that State and his expulsion would cause
separation from his close family living there. Both the Commission and Court require
respondent States to show stronger reasons justifying such expulsion, including the
Seriousness
of
the offences committed by the applicant. This assertive policy may also be
~-----------
42
Kroon
and Othersv. the
Netherlands,
Judgment
of
27 October 1994, A.297-C, para. 40.
4) In the Johnston Case, the Court concluded that 'notwithstanding the wide margin
of
appreciation', the
absence of an appropriate legal regime reflecting the 'illegitimate' child's natural family ties constituted a
failure to respect her family life: Johnston and Others v. Ireland, Judgment of 18 December 1986, A.112,
.. para. 75. See also Kroon and Others v. the Netherlands, Judgment
of27
October 1994, A.297-C, para. 40.
Rasmussen v. Denmark, Judgment of 28 November 1984, A.87, para. 41. By contrast, the Commission
implicitly relied on the evolutive interpretation and found a violation of Article 14 taken together with
45 Articles 6 and 8: Commission's Report of 5 July 1983, A.87, paras 86-87.
46 Rasmussen v. Denmark, Judgment of 28 November 1984, A.87, para. 41.
No. 14501/89, A and A v . the Netherlands, Decision of 6 January 1992, D&R 72, p. 118, at p. 123. See also,
inter alia, Boughanemi v. France, Judgment of 24 April 1996,22 EHRR, p. 228, para. 41; and Amuur v.
47 France, Judgment of 25 June 1996, 22 EHRR, p. 533, para. 41.
See, for instance, Abdulaziz, Cabales and Balkandali v. the United Kingdom, Judgment of 28 May 1985,
A.94, para. 68; Gal v. Switzerland, Judgment of 19 February 1996, 22 EHRR, 1996, p. 93, para. 38; and
Ahmut v. the Netherlands, Judgment of 28 November 1996, 24 EHRR, 1997, p. 62, paras
63,67
and 73.
49
NQHR
1/1998
seen from their detailed evaluation not only of the legitimate aim pursued but also
of
the
'consequences'
of
the expulsion, in particular, the 'seriousness' of the interference with
the right to family life." Weaker justifications, including mere economic grounds, may
not be sufficient to justify severing a close family tie in the deporting State." In addition,
even if the person facing expulsion has a serious criminal record, his health conditions,
including any handicap, must be taken into account.50 Moreover, the deportation
of
persons may breach the non-derogable right provided in Article 3
if
they run the risk
of
their life" or of being exposed to a situation or condition which amounts to an inhuman
treatment.52
C. Homosexuals
and
Transsexuals
The tendency of the Strasbourg organs is to carry out a strict scrutiny
of
any legislation
criminalising private homosexual conduct. One notable aspect is the relaxed approach as
regards the question whether an applicant can claim to be a 'victim' within the meaning
of
Article 25. The mere existence
of
a law which criminalises private homosexual conduct
between consenting adults constitutes an interference incompatible with the requirements
of the right to private life, and homosexuals may be recognised as potential victims in
such circumstances, irrespective of whether the law has been applied to them.53 Another
notable feature in this context is that the Strasbourg organs tend to evade the question
.8 In the Berrehab Case, the Court noted that 'the legitimate aim pursued has to be weighed against the
seriousness
of
the interference with the applicants' right to respect for their family life': Berrehab v. the
Netherlands, Judgment of 21 June 1988, A.138, para. 29. See also Moustaquim v. Belgium, Commission's
Report of 12 October 1989, A.I93, para. 61; and BeJdjoudi v. France, Commission's Report
of6
September
1990, A.234·A, para. 63. By contrast, in the Boughanemi Case, the Court found the proportionate balance
to be attained in relation to the deportation of a recidivist
of
a serious criminal offence. By emphasising the
applicant's cultural and linguistic affinity with his home country, the Court sought to differentiate the instant
case from those of Moustaquim, Beldjoudi
and
Nasri: Boughanemi v. France, Judgment of 24 April 1996,
22 EHRR, 1996, p. 228, paras 44-45.
•• See, for example, Berrehab v. the Netherlands, Judgment of 21 June 1988, A.138.
50 In this respect, compare the case of Nasri v. France (Judgment of 13 July 1995, A.320-B) with the case of
Dv. the United Kingdom (Judgment of 2 May 1997, 24 EHRR, 1997, p. 423). In the former case, which
concerned the pending deportation of a deaf-mute to Algeria away from his family living in France, while
the Commission found violations of both Article 3 (inhuman treatment) and Article 8, the Court found only
the violation of Article 8. The latter case involved the proposed removal of a drug courier dying
of
AIDS
to St. Kitts, where there was no adequate medical treatment and social support. Both the Commission and
Court were satisfied with the finding of a violation only of Article 3 (inhuman treatment).
51 Dv, the United Kingdom, Judgment of 2 May 1997, 24 EHRR, 1997, p. 423 (the proposed removal of a
person suffering from AIDS to the place where he would not receive adequate medical treatment); and
Chahal v. the United Kingdom, Judgment of 15 November 1996, 23 EHRR, 1997, p. 413 (the deportation
order issued to a Sikh separatist leader, who complained that his deportation to India would expose him to
a real risk
of
ill-treatment by the hands of the security forces).
52 Soering v. the United Kingdom, Judgment of 7 July 1989, A.l61 (the decision to extradite a person who
would run the risk of suffering from the 'death row phenomenon').
53 Dudgeon v. the United Kingdom, Judgment of 22 October 1981, A.45; Norris v. Ireland, Judgment
of
26
October 1988, A.142; and Modinosv. Cyprus, Judgment
of22
Apri11993, A.259. As to the relaxed approach
to the claim of being a 'victim' within the meaning of Article 25, see Gomien et al., op.cit. (note 1), pp. 43-
47.
50
Arai I The Margin
of
Appreciation Doctrine
Whether the measures may be justified as pursuing the aim
of
the 'protection
of
morals'.54
In assessing the proportionality test, the Strasbourg organs have relied on the principle
of evolutive interpretation, correspondingly reducing the parameters
of
national
discretion.
55
However, they have still allowed national authorities considerable latitude
in determining whether to grant homosexuals equal rights in respect
of
other issues such
as the age
of
consent for sexual intercourse," the recognition
of
family and marriage"
as well as sexual activities in the armed forces." In these areas, they refer to a wide
margin
of
appreciation, rejecting both evolutive interpretation and the comparative
method.
59
The underlying justification for the margin
of
appreciation in this context is
that national authorities are considered more suited than international judges to assess the
requirements
of
public and even private morality in their society.
As regards issues affecting transsexuals, the jurisprudence shows a significant shift in
the policy
of
review from a progressive to a more reticent stance. The earlier case-law was
characterised by an assertive review, adopting the comparative method. In the Rees Case,
however, the Court, departing from the Commission's opinion." refused to adopt that
method.61 It referred to the 'wide margin
of
appreciation'i'" and found no violation
of
Article 8 as regards the refusal
of
the United Kingdom authorities to recognise the post-
operative transsexual's new sexual identity. Since then, both the Commission and Court
have consistently deferred to national appreciations as regards such issues as changing the
birth register under Article 863 or the right to marriage under Article 12.64 They have
refrained from an evolutive interpretation, noting that social and scientific developments
do not yet warrant it.
65
The Court has also allowed national authorities a wide margin
54 See Laskey. Jaggard and Brown v. the United Kingdom, Judgment of 19 February 1997, 24 EHRR, 1997,
p. 39, para. 51; and No. 7215/75,
Xv.
the United Kingdom, Commission's Report of 12 October 1978, D&R
55 19, p. 66, at p. 78, para. 157.
56 Dudgeon v. the United Kingdom, Judgment of 22 October 1981, A.45, para. 60.
No. 5935/72, Xv. Germany, Decision of 30 September 1975, D&R 3, p. 46; No. 7215/75, X v, the United
Kingdom, Commission's Report of 12 October 1978, D&R 19, p. 66; and No. 10389/83, Johnson v. the
United Kingdom, Decision of 17 July 1986, D&R 47, p. 72. See, however, No. 25186/94, Sutherland v. the
57 United Kingdom (declared admissible), Decision of 21 May 1996, 22 EHRR CD, 1996, p. 183.
No. 9369/81, X and
Yv.
the United Kingdom, Decision
of3
May 1983, D&R 32, p. 220; and No. 11716/85,
5, S v. the United Kingdom, Decision of 14 May 1986, D&R 47, p. 274.
59 No. 9237/81, Bv. the United Kingdom, Decision of 12 October 1983, D&R 34, p. 68.
As to the age of consent, see No. 7215/75, Xv. the United Kingdom, Commission's Report of 12 October
1978, D&R 19, p. 66, paras 147·148; and No. 10389/83, Johnson v. the United Kingdom, Decision of 17
July 1986, D&R 47, p. 72, at p. 77. As to thenotion of family life, see No. 9369/81, X and Y v. the United
60 Kingdom, Decision of 3 May 1983, D&R 32, p. 220, at p. 221.
The Commission took into account the legislative developments as regards the possibility of a change
of
sex
of transsexuals in Sweden, Federal Republic of Germany, Italy, Switzerland and Norway: Rees v. the United
61 Kingdom, Commission's Report of 12 December 1984, A.106, para. 44.
Rees v. the United Kingdom, Judgment of 17 October 1986, A.106, para. 42. However, while refusing to take
into account the other Member States' practice, the Court acknowledged the need for an evolutive
interpretation: 'The Convention has always to be interpreted in the light of current circumstances
(00')
The
need for appropriate legal measures should therefore be kept under review having regard particularly to
62 scientific and societal developments.' Ibidem, para. 47.
6' Ibidem, para. 44.
64 Ibidem, para. 37.
MCossey v. the United Kingdom, Judgment of 27 September 1990, A.184, para. 46.
Ibidem, para. 40.
51
NQHR
1/1998
of appreciation as to the question whether to grant a transsexual acting as a de facto father
the parental rights of a child conceived by artificial insemination by donor."
On issues
of
transsexualism, the justification for judicial self-restraint is two-fold. First,
the word 'respect' under Article 8, from which positive obligations derive, is not clear in
its meaning, and its requirements thus vary depending on the diversity
of
practices among
the Contracting States." Second, and most importantly, there is still little common
ground among the Member States as to the manner in which various issues involving
transsexuals should be treated in law." In view of the novelty of the issues, with which
legal practice and social attitudes have yet to catch up, and the diversity
of
practices, the
Strasbourg organs have so far considered it desirable to defer to the discretion
of
each
State.
D. Surveillance and Data Collection
With regard to the issues
of
surveillance and data collection, the assertive policy
of
review
may be identified by the relaxed approach to the question whether an applicant can claim
to be the 'victim'
of
a violation within the meaning of Article 25. Thus the Strasbourg
organs have admitted a complaint against a German law authorising secret surveillance/"
as well as a complaint relating to the laws and practices of interception and metering of
communication in England and Wales. 70 In the Klass Case, though no surveillance
measure was taken against the applicants, the Court found that because the contested
legislation permitted the monitoring
of
mail, post and telecommunications
of
any citizen
in the Federal Republic
of
Germany, the applicants could claim the status
of
'victims'
within the meaning
of
Article 25.71 In the Malone Case, the Court recognised that the
mere existence of laws and practices establishing the system of secret surveillance
of
communications amounted in itself to an interference with the applicant's right guaranteed
under Article 8, 'apart from any measures actually taken against
him'."
In relation to the first standard, 'in accordance with the law', given the danger inherent
in secret surveillance and data collection, both the Commission and Court have applied the
requirement
of
'foreseeability' with rigour." In particular, they evaluate 'whether the
essential elements
of
the power to intercept communications are laid down with reasonable
precision in accessible legal rules that sufficiently indicated the scope and manner of
exercise
of
the discretion conferred on the relevant authorities'." The 'precision' test also
66
X.
Y and Z v. the United Kingdom, Judgment of 22 April 1997, 24 EHRR, 1997, p. 143, para. 44.
67 Rees v. the United Kingdom, Judgment of 17 October 1986, A.l06, para. 37.
68 1dem; Cossey v. the United Kingdom, Judgment of 27 September 1990, A.184, para. 40; and
X.
Y and Z v.
the United Kingdom, Judgment
of
22 April 1997, 24 EHRR, 1997, p. 143, para. 44.
69 Klass and Others v. Germany, Judgment of 6 September 1978, A.28.
70 Malone v. the United Kingdom, Judgment
of
2 August 1984, A.82.
71 Klass and Others v. Germany, Judgment of 6 September 1978, A.28, para. 38.
72 Malone v. the United Kingdom, Judgment of 2 August 1984, A.82, para. 64.
73 See, for instance, Malone v. the United Kingdom, Judgment of 2 August 1984, A.82; Kruslin v. France,
Judgment
of
24 April 1990, A.l76-A; Huvig v. France, Judgment of 24 April 1990, A.176-B; Liidi v.
Switzerland, Commission's Report
of
6 December 1990, A.238 (in contrast, the Court's examination lacked
full vigour, finding no violation).
7. See, among others, Malone v. the United Kingdom, Judgment
of2
August 1984, A.82, para. 70; and Halford
v. the United Kingdom, Judgment of 25 June 1997, 24 EHRR, 1997, p. 523, para. 49.
52
Arai /The Margin
of
Appreciation Doctrine
requires that there be 'adequate safeguards against various possible abuses' to be
prescribed in law."
In assessing proportionality, the Strasbourg organs take a close look at the seriousness
of the interference, and hence evaluate the national margin
of
appreciation with greater
rigour.76 Where considerations of national security and protection against organised crime
are involved, they may allow national authorities a wider margin of appreciation.
Nevertheless, they require national authorities to prescribe in law 'adequate and effective
guarantees against abuse'." In this respect, they closely examine whether there exists a
sufficient degree of democratic control over the exercise
of
discretion enjoyed by
administrative authorities.
E. The Rights of Prisoners and Detainees
The Commission, in its early case-law, accepted that the prison regime entailed 'inherent
limitations' on the rights of prisoners guaranteed under Article 8.78 The doctrine of
inherent limitations in the context of Article 8meant that a restrictive measure did not
constitute an interference with the rights guaranteed under the first paragraph. Since there
Was
no 'interference', it was not necessary to examine the case under the second
paragraph. However, in the Golder Case, the Court flatly rejected this doctrine, stressing
that the second paragraph 'leaves no room for the concept
of
implied limitation'." The
second paragraph expressly provides that '[t]here shall be no interference (...) except such
as ...'
Since the Golder Judgment, the Strasbourg organs have consistently examined
restrictive measures under the second paragraph, and there remains no room for an
'unfettered' margin
of
appreciation, free from supervision. This active policy of review
can be seen in several respects. The Convention bodies do not merely reflect a respondent
State's submissions, but they choose to undertake their own independent evaluation of the
merits.
7S Kruslin v. France, Judgment of 24 April 1990, A.l76-A, para. 35; and Huvig v. France, Judgment of 24
76 April 1990, A.l76-B, para. 34.
In the Leander Case, the Court noted as follows: '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 the
interference with the applicant's right to respect for his private life.' Leander v. Sweden, Judgment of 26
17 March 1987, A.116, para. 59.
Klass and Others v. Germany, Judgment of 6 September 1978, A.28, para. 50; Leander v. Sweden, Judgment
of26
March 1987, A.116, para. 60. In the Leander Case, the Commission referred to 'sufficient and effective
78 safeguards' against abuse: Leander v. Sweden, Commission's Report of 17 May 1985, A.116, para. 80.
See, for instance, No. 2749/66, De Courcy v. the United Kingdom, Decision of 11 July 1967, Yearbook 10,
p. 388, at p. 412; No. 4144/69, Xv. Luxembourg, Decision of 16 March 1970, 33 CD, p. 27, at p. 30; De
Wilde, Ooms and Versyp v. Belgium (Vagrancy Cases), Nos. 2832/66, 2835/66 and 2899/66, Commission's
Report
of
19 July 1969, B.1O (1969-1971), p. 97, para. 187. However, in the Vagrancy Cases, the Court
justified the control
of
correspondence under the second paragraph, referring to the 'power of appreciation'
left to the national authorities: De Wilde, Ooms and Versyp v. Belgium, Judgment
of
18 June 1971,
A.l2,
7. para. 93.
Golder v. the United Kingdom, Judgment of 21 February 1975, A.18, para. 44. This observation constitutes
a striking contrast to the Court's recognition of the 'implied limitations' on the right of access to a court:
ibidem, para. 38.
53
NQHR
1/1998
In evaluating the first standard, 'in accordance with law', the Strasbourg organs have
stringently applied the 'foreseeability' test." They have required the relevant domestic
law to be formulated with a sufficient degree
of
certainty and precision. If national law
confers a discretion on administrative authorities, it must define the scope and conditions
of
the exercise
of
such a discretion."
Moreover, the Strasbourg organs' assessment
of
the standard
of
democratic necessity
shows a strict policy
of
review and hence the narrow scope
of
appreciation left to national
authorities. The Strasbourg organs may reject the respondent State's plea for a margin
of
appreciation." Or they may shift the onus
of
proof, requiring the respondent State to
adduce weighty evidence
of
necessity." In evaluating the proportionality test, they tend
to take a closer look at the effects of interferences on the rights
of
an individual.84 The
rigorous assessment
of
proportionality calls for national authorities to take the least
restrictive measure capable
of
attaining the same legitimate goal."
In contrast, on issues
of
prisoners' rights to family life, the tendency is to allow
national authorities a wider margin
of
appreciation. The Strasbourg organs recognise a
primafacie good faith
of
the national authorities. They readily justify the interferences as
necessary for pursuing such legitimate aims as the protection
of
public safety and the
prevention
of
disorder or crime. The Commission admitted such restrictive measures as
preventing prisoners from attending a daughter's" or a mother's funeral," receiving a
visit from a child," and having conjugal visits from his wife." The greater emphasis
on the national margin
of
appreciation corresponds to the relaxed scrutiny
of
the necessity
of
interference. The Commission has held that national authorities have 'sufficient reason'
to justify a restrictive measure. As a corollary, the burden
of
proof rests on the
applicant." Unlike rights
of
correspondence, prisoners' rights to family life entail the
considerations
of
security and order as well as positive obligations for the national
authorities.
F. Respect for the Home
Despite the express reference to the national 'margin
of
appreciation', the Strasbourg
organs have carried out a strict examination
of
the merits with respect to the right to
respect for the home. In applying the proportionality test, they balance both the nature
of
80 Silver and Others v. the United Kingdom, Judgment of 25 March 1983, A.61; Herczegfalvy v. Austria,
Commission's Report of I March 1991 and Court's judgment of 24 September 1992,A.244.
81 Herczegfalvy v, Austria, Commission's Report of I March 1991, A.244, para. 270 and Court's judgment of
24 September 1992, A.244, para. 89.
82 Campbell v. the United Kingdom, Judgment of 25 March 1992, A.233, paras 52-53.
83 Schonen berger and Durmaz v. Switzerland, Commission's Report of 12 December 1986, A.l37, paras 64
and 67.
84 See, in this regard, Campbell and Fell v. the United Kingdom, Judgment of 28 June 1984, A.80.
85 Campbell and Fell v. the United Kingdom, Commission's Report of 12 May 1982, A.80, para. 144; and
Campbell v. the United Kingdom, Judgment of 25 March 1992, A.233, paras 52-53.
86 No. 4623170, X v. the United Kingdom, partial decision of 19 July 1971, 39 CD, p. 63.
87 No. 5229171, X v. the United Kingdom, Decision of 5 October 1972, 42 CD, p. 140.
88 No. 2515165, X v. Germany, Decision of 23 May 1966, 20 CD, p. 28; and No. 2306/64, X v, Austria,
Decision of 19 July 1966,21 CD, p. 23.
89 No. 3.603/68,X v, Germany, Decision of 4 February 1970, 31 CD, p. 48.
90 No. 4623170, X v. the United Kingdom, partial decision of 19 July 1971, 39 CD, p. 63, at p. 64. See also
No. 2306164, X v, Austria, Decision of 19 July 1966, 21 CD, p. 23.
54
Arai /The Margin
of
Appreciation Doctrine
the legitimate aim and the nature
of
the right involved." In addition, where national law
confers on administrative authorities a wide discretion as regards searches
of
the home,
such a discretion must be accompanied by the 'adequate and effective safeguards against
abuse'."
Pollution and nuisance caused by public facilities are issues subject to a balancing
process between individual rights secured under Article 8 and the public interest in
economic well-being, and hence are subject to a broader margin
of
appreciation. For
example, the public interest in air traffic may be a strong factor allowing the national
authorities a wide 'margin
of
appreciation'. In the case
of
Powell and Rayner, the Court
found that the national authorities did not exceed the 'margin
of
appreciation' or upset the
'fair balance' in regulating air traffic
of
Heathrow Airport for the purpose
of
abating the
level
of
noise. Nevertheless, where nuisance caused by public facilities exceeds any
reasonable level, the Strasbourg organs are ready to apply a strict standard
of
proportionality, overriding the national margin
of
appreciation."
IV General Policy Grounds Underlying the National Margin of Appreciation
The survey conducted in Section II discloses not only particular policies but also general
policy grounds, which seem to underlie the margin
of
appreciation doctrine in the whole
corpus
of
the Convention jurisprudence. This section deals firstly with those general policy
grounds which are derived from and closely related to the particularities
of
national
societies, such as the considerations
of
morality and
of
national security. Secondly, it
touches on the matters where there is little European consensus. Thirdly, it refers to the
rights which impose on national authorities the obligations
of
apositive kind. Finally, it
briefly analyses the policy grounds
of
a more general character, which underlie all the
decision-making
of
the Strasbourg organs. In this respect, it discusses the question
of
deference to national sovereignty and the so-called fourth instance doctrine.
A. Moral Considerations
The considerations
of
public morality require the assessment
of
sensitive values in national
societies, and hence respect for public morals tend to give the national authorities a wide
margin
of
appreciation. Under Article 8, the assessment
of
public morals arises from
various issues relating to homosexuality. In evaluating the age
of
consent for homosexual
activities or the question whether ahomosexual couple should be entitled to family life,
the Strasbourg organs refer to a wide margin
of
appreciation, rejecting both evolutive
interpretation and the comparative method." In view
of
the direct access to and first-
hand knowledge
of
the particular culture, morals and religion in their societies, national
91 See, inter alia, Gil/ow v. the United Kingdom,
Judgment
of24 November1986, A.I09,
para.
55; andBuckley
v. the United Kingdom, Judgment of 25 September 1996, 23 EHRR, 1997, p. 101, paras 74 and 76.
92 Funkev. France,
Judgment
of
25
February
1993, A.256,
para.
56.
93 Lopez Ostra v. Spain,
Judgment
of 21
February
1990, A.172,
para.
58.
94 See the cases concerning the age of consent for homosexuals: No. 7215/75, Xv. the United Kingdom,
Commission's Report of 12 October 1978,D&R 19, p. 66, paras 147-148;and No. 10389/83, Johnson v.
the United Kingdom. Decision of 17 July 1986, D&R47, p. 72, at p. 77. Seealso the cases concerning the
question whether a homosexual couple is entitled to family life: No. 9369/81, X and Y v, the United
Kingdom, Decision of 3 May 1983, D&R 32, p. 220, at p. 221.
55
NQHR
11/998
authorities are considered more suited than international judges to assess problems relating
to these particular values."
B. National Security and Prevention of Crime
Naturally, considerations
of
national security and protection against organised crime
constitute other factors giving national authorities a wider margin
of
appreciation.
Demonstrating good faith on the part
of
the national authorities may be sufficient to
uphold their action in such cases, and the benefit
of
doubt may be extended to them. In
the Klass Case, the Court assumed the legitimacy
of
a German law authorising various
surveillance measures against those suspected
of
acting against national security:
In the
absence
of any
evidence
or
indication
that the
actual
practice
followed
is
otherwise,
the
Court must
assume
that in the
democratic
society
of the
Federal
Republic
of
Germany
the
relevant
authorities
are
properly
applying
the
legislation
in issue."
But this does not mean an unquestioning approval
of
national measures. The national
authorities must establish procedural safeguards against abuse. The touchstone for checking
national discretion is whether 'adequate and effective guarantees against abuse' are
available." In particular, the Strasbourg organs carry out a detailed assessment
of
whether there exists democratic control over the exercise
of
discretion enjoyed by
administrative authorities."
C. Matters Where There is Little European Consensus
In dealing with matters where there is little common ground among the Member States
as to their regulation and implementation, the Strasbourg organs allow national authorities
broad parameters
of
discretion. Consensus has yet to be reached on issues relating, for
example, to post-operative transsexuals" and conditions for the change
of
names.'?"
In the Rasmussen Case, the Court did not find any 'common ground' in the Contracting
0'
The classic formulation
of
the margin of appreciation may be seen in the Handyside Case, which concerned
the publication
of
aschoolbook condemned as obscene in the United Kingdom: 'In particular, it is not
possible to find in the domestic law
of
the various Contracting States a uniform European conception
of
morals. The view taken by their respective laws
of
the requirements
of
morals varies from time to time and
from place to place, especially in our era which is characterised by a rapid and far-reaching evolution
of
opinions on the subject. 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 judgeto give an opinion
on the exact content
of
these requirements as well as on the "necessity"
of
a"restriction" or "penalty"
intended to meet them ( ...) Consequently, Article 10 § 2 leaves to the Contracting States a margin
of
appreciation.' Handyside v. the United Kingdom, Judgment
of
7December 1976, A.24, para. 48.
O.
Klass and Others v. Germany, Judgment of 6 September 1978, A.28, para. 59.
01 In the Klass Case, the Court emphasised that 'whatever system
of
surveillance is adopted, there exist
adequate and effective guarantees against abuse': Klass and Others v. Germany, Judgment
of
6September
1978, A.28, para. 50. See also Leander v. Sweden, Judgment
of
26 March 1987, A.116, para. 60. In the
Leander Case, the Commission stressed the need for 'sufficient and effective safeguards': Commission's
Report
of
17 May 1985,
A.1l6,
para. 80.
08 Leander v. Sweden, Judgment
of
26 March 1987, A.116, para. 65.
00 Rees v. the United Kingdom, Judgment
of
17 October 1986,
A.l06,
para. 37; Cossey v. the United Kingdom,
Judgment
of
27 September 1990, A.184, para. 40; and X, Y and Z v. the United Kingdom, Judgment
of
22
April t997, 24 EHRR, 1997, p. 143, para. 44.
\00 Stjerna v. Finland, Judgment
of
25 November 1994, A.299-B, para. 39.
56
Arai /The Margin
of
Appreciation Doctrine
States' legislation regarding the terms on which proceedings to contest paternity could be
instituted. The fact that the Danish legislation did not differ from that
of
most other
Contracting States in this respect was considered a reason justifying time-limits imposed
only on a husband but not on a wife. WI
In contrast, the existence
of
common ground justifies recourse to the comparative
method and evolutive interpretation. Reliance on these methods
of
interpretation
effectively endorses the positions
of
the majority
of
Member States and overrides any
national discretion
of
Member States, their 'right to be different'.
D. Positive Obligations
Unlike negative obligations, which prohibit arbitrary interference by the public authorities,
Positive obligations under Article 8 often require the minute assessment
of
particular
circumstances. The Strasbourg organs have consistently stressed that in view
of
their direct
Contact with and first-hand knowledge
of
the conditions involved, the national authorities
are more suited than international tribunals to assess the extent to which and the ways in
which positive obligations may be implemented. While positive obligations are 'inherent'
in any effective 'respect' for private or family life, they are subject to
'a
wide margin
of
appreciation':
Although
the essential object of
Article
8is to
protect
the
individual
against arbitrary
interference by the public authorities, theremay in addition be positive obligations inherent in
an effective 'respect' for
family
life.
However,
especially as far as thosepositive obligations
are
concerned,
the notion of 'respect' is not
clear-cut:
having
regard to the diversity of the
practices
followed
and the situations obtaining in the Contracting States, the notion's
requirements will vary considerably
from
case to case.
Accordingly,
this is an area in which
theContracting Parties enjoya wide
margin
of appreciation in
determining
the stepsto be taken
to ensure compliance with the
Convention
with due regard to the needs and resources of the
community and of individuals. 102
In evaluating the extent
of
their obligation to ensure reunion
of
family members, national
authorities are allowed
'a
margin
of
appreciation'i!" In the Olsson
(No.2)
Case, the
Court noted that where contacts with the natural parents would harm the interests
of
children guaranteed under Article 8, it is within the discretion
of
the national authorities
to strike a
'fair
balance'. The Strasbourg organs' supervision is limited to determining
'Whether the national authorities have made such efforts to arrange the necessary
preparations for reunion as can reasonably be demanded under the special circumstances
of each case'.104
Despite the connection that the Strasbourg organs have often emphasised between
Positive obligations and a wide margin
of
appreciation, it is doubtful whether the national
measure
of
apositive kind is always beyond the Strasbourg organs' supervision. While the
choice
of
positive means to achieve alegitimate goal may fall within the primary
101 Rasmussen v. Denmark, Judgment of 28 November 1984, A.87, p. 15, para. 41.
102 Johnston and Others v. Ireland, Judgment of 18 December 1986, A.1l2, para. 55. See also Rees v. the
103 United Kingdom, Judgment of 17 October 1986, A.106, para. 37.
Olsson v. Sweden (No.2), Judgment
of
27 November 1992, A.250, para. 90.
104 Idem.
57
NQHR
1/1998
discretion
of
the national authorities, the proportionality
ofthe
measure must be duly taken
into account by the Strasbourg organs' supervision. lOS
E. Deference to Sovereignty
Especially in the field
of
immigration, the margin
of
appreciation is a measure of
deference to the 'sovereign' right
of
each Member State to control access to its territory.
Under international law, each State enjoys exclusive jurisdiction over its territory. Control
over the admission to and expulsion from its territory is regarded as a 'sovereign'
attribute. The Court has held that 'Contracting States have the undeniable sovereign right
to control aliens' entry into and residence in their territory' .106 Moreover, as the
Commission has recognised, national authorities must assess the best way for their limited
resources to be equitably distributed, having regard to their citizens' needs.
F.
The
Fourth
Instance
Doctrine
The Convention bodies may abstain from a detailed examination
of
the merits on the basis
that they are not intended to replace the primary role played by national courts. The
drafters
of
the Convention did not envisage that the Strasbourg organs should become, in
effect, a fourth instance
of
national appeal systems. This may be related to the question
of
legitimacy, but it is also partly a matter
of
simple efficiency in the use
of
resources.
Local democratic institutions and tribunals are regarded as best placed to assess the issues
of
the kind requiring first-hand knowledge
of
national particularities.
In the cases concerning surveillance, the Strasbourg organs have consistently suggested
the fourth instance doctrine. For instance, in the
Malone
Case, while noting that law in
England and Wales governing interception
of
communication for police purposes was
obscure and open to differing interpretation, the Court noted that it 'would be usurping
the function
of
the national courts were it to attempt to make an authoritative statement
on such issues
of
domestic law'.107
VPolicy
Grounds
Upholding Active Review
Throughout the case-law, various factors operate to narrow the permissible parameters
of
national discretion. In particular, the element
of
discrimination, and especially the 'suspect
categories'
of
difference in treatment on the ground
of
race, sex, and birth, invite the
Strasbourg organs to carry out the most stringent scrutiny.
Of
particular relevance in the
10' The Court has consistently held that the applicable principles are similar and that, in the contexts of both
positive and negative obligations, the 'fair balance' must be struck between the interests of the individual
and
of
the community as a whole; see, inter alia, Keegan v.Ireland, Judgment
of26
May 1994, A.290, para.
49; Kroon and Others v. the Netherlands, Judgment of 27 October 1994, A.297-C, para. 31; Gut v.
Switzerland, Judgment of 19 February 1996, 22 EHRR, 1996,p. 93, para. 38; and Ahmut v. the Netherlands,
Judgment of 28 November 1996, 24 EHRR, 1997, p. 62, para. 63.
106 Amuur v. France, Judgment of 25 June 1996, 22 EHRR, 1996, p. 533, at p. 556, para. 41. See also
Boughanemi v. France, Judgment of 24 April 1996, 22 EHRR, 1996, p. 228, at p. 247, para. 41.
107 Malone v. the United Kingdom, Judgment
of
2 August 1984, A.82, para. 79. See also the Commission's
Report"of 17 December 1982 in the Malone Case, A.82, para. 127; Kruslin v. France, Judgment of 24 April
1990, A.176-A, para. 29; and Huvig v. France, Judgment of 24 April 1990, A.176-B, para. 28.
58
Arai /The Margin
of
Appreciation Doctrine
context
of
Article 8 are the most intimate aspects
of
private life related to sexual life
of
individuals.
A. Discrimination
Asurvey
of
the case-law displays that in cases involving difference in treatment on the
ground
of
birth, sex or race, the Strasbourg organs have carried out the strict examination
of
the merits, and left little scope for the national margin
of
appreciation. In the Abdulaziz
Case, three women who were lawfully resident in the United Kingdom complained that
the refusal to allow their husbands to join them in the United Kingdom constituted sex
discrimination under Article 14 taken together with Article 8. While expressly recognising
a certain 'margin
of
appreciation' left to national authorities in assessing whether and to
What extent differences in otherwise similar situations justify adifferent treatment!" the
Court emphasised that:
'" the advancement
of
the equality
of
the sexes is today a major goal in the member States
of
the Council
of
Europe. This means that very weightyreasonswould have to be advanced before
a difference
of
treatment on the ground
of
sex could be regarded as compatible with the
Convention. 109
Where discrimination is involved, the Strasbourg organs are willing to adopt an 'evolutive'
interpretation as a part
of
the assertive policy
of
review. The Burghartz Case concerned
discrimination on the ground
of
sex as regards the refusal to permit the applicants to put
ahusband's surname before his wife's, which had been adopted as their joint family name.
Emphasising that 'the Convention must be interpreted in the light
of
present-day
conditions, especially the importance
of
the principle
of
non-discrimination', the Court
rejected the respondent State's argument based on a 'genuine tradition' for the purpose
of
family unity."° It found that the difference
of
treatment at issue lacked
'an
objective and
reasonable justification' and hence violated Article 14 taken together with Article
8."
1
Reliance on the 'evolutive' interpretation is a clear manifestation
of
an assertive policy
of
review. The tendency to adopt such an interpretation becomes particularly strong in the
matter
of
discrimination on the ground
of
birth. For instance, in the Marckx Case, the
Court recognised an 'evolutive' interpretation'" and found that the Belgian law
of
affiliation distinguishing between legitimate and illegitimate children lacked 'objective and
reasonable justification'.113
Where elements
of
discrimination are involved, the Strasbourg organs may shift the
onus
of
proof
to a respondent State. The complaints
of
the admission policy pursuing the
distinction on the ground
of
race!"
or sex'" illustrate this example. In contrast,
108 Abdulaziz, Cabales and Balkandali v. the United Kingdom, Judgment of 28 May 1985, A.94, para. 78.
109 Idem (emphasis added). See also Burghartz v. SWitzerland, Judgment of 22 February 1994, A.280-B, para.
27.
110 Burghartz v.
SWitzer/and,
Judgment
of 22
February
1994, A.2S0-B,
para.
28.
111
Ibidem,
para.
29.
112
March
v. Belgium,
Judgment
of 13
June
1979, A.31,
para.
41.
113 Ibidem,
para.
43.
114 Nos 4403..4419/70,4422/70,4423/70,4434/70,4443/704476-4478/70,4486/70,4501/70 and4526-4530/70
(joined), East African Asians v, the United Kingdom, Commission's Report of 14 December 1973 (made
public by Resolution
of
21 March 1994), D&R 78-A, p. 5.
us Abdulaziz, Cabales and Balkandali v. the United Kingdom, Judgment of 28 May 1985, A.94.
59
NQHR / /
/998
differences in immigration policy on the ground of sexual orientation have yet to be held
to constitute discrimination. I 16
B.
Fundamental
Values of a Democratic Society
In cases concerning what the Strasbourg organs describe as 'fundamental values' of private
life, their policy of strict scrutiny may be identified.'!' Even in cases involving positive
obligations, they may refuse national authorities any margin of discretion.
In the case
of
X and Yv. the Netherlands, the applicants alleged a violation of Article
8 in view of the impossibility of having a criminal prosecution instituted against a
perpetrator
of
a sexual assault under the then Netherlands criminal law. The victim was
a mentally handicapped minor girl, and could not give her consent to a criminal
prosecution. Despite its reference to a margin of appreciation, the Court narrowed the
parameters of national discretion, stating that in view
of
'fundamental values and essential
aspects
of
private life' at stake, only criminal sanctions would constitute an effective
deterrent!" Similarly, in the cases concerning the fundamental aspects
of
family life,
such as the total denial
of
aparent's access to a child or the judicial replacement
of
the
parental consent to their children's adoption, the Commission applied a heightened
scrutiny. In view
of'a
natural and fundamental bond between parent and child', 'only very
serious reasons'!" or 'the most pressing grounds'!" could justify such restrictions.
Conclusion
The margin
of
appreciation doctrine is created and developed by the Convention organs
in order to reconcile the need to achieve a relatively uniform European-wide standard of
human rights with the demands
of
different cultural and socio-economic values embraced
by the Member States. It serves as a way of balancing between these conflicting
demands.121
It
is an inevitable product
of
the 'distribution
of
powers' between the
116 No. 14753/89,
Decisionof9
October 1989 (unpublished); No. 16106/90, Bv, the United Kingdom, Decision
of
10 February 1990, D&R 64, p. 278, at p. 284.
117 Compare the strict scrutiny of the cases involving what the Strasbourg organs describe as 'fundamental rights
in a democratic society': Scherer v. Switzerland, Judgment of 25 March 1994 (struck out of the list), A.287,
Commission's Report of 14 January 1993, para. 224 (as to freedom of expression); Kokkinakis v. Greece,
Judgment of 25 May 1993, A.260, para. 31; Otto-Preminger-Institut v. Austria, Judgment of 20 September
1994, A.295-A, para. 47 (as regards freedom of religion); and Soering v, the United Kingdom, Judgment of
7 July 1989, A.161, para. 88 (as to the prohibition on torture and on inhuman or degrading treatment or
punishment). However, in the cases of Handyside and Muller, despite its reference to the 'fundamental' right
in a democratic society, the Court deferred to the national discretion in assessing the issues relating to
morals: Handyside v. the United Kingdom, Judgment
of
7December 1976, A.24, para. 49; and Muller and
Others v. Switzerland, Judgment of 24 May 1988, A.133, paras 36 and 43.
1\8 X and Y v. the Netherlands, Judgment of 26 March 1985, A.91, para. 27.
1\9 No. 9018/80, Kv. the Netherlands, Decision of 4 July 1983, D&R 33, p. 9, at p. 19.
120 No. 11588/85, U and G.F. v. Germany, Decision of 15 May 1986, D&R 47, p. 259, at p. 263.
121 Macdonald observes that: ' ... the margin of appreciation has given the Court great flexibility in dealing with
the myriad problems of everyday life within the Contracting States that have come before it. Since the
Contracting Parties adhere to diverse and often contradictory conceptions of human rights, attributable to
differences in political, economic, social and cultural traditions, the task of the Court is to reconcile this lack
of homogeneity in the audience at large with the recognition and development
of
an effective and reasonably
uniform standard of protection for Convention rights within the jurisdiction of each of the High Contracting
Parties.'
60
Arai /The Margin
of
Appreciation Doctrine
Strasbourg organs assigned to ensure the 'uniform' approach of the Convention standards
on one hand and each Member State retaining a democratic mandate on the other.122
In most
of
the cases, the margin of appreciation doctrine serves as the role of judicial
self-restraint justifying the decisions
of
the national authorities. However, in some cases,
While
referring to this doctrine, the Strasbourg organs find that the national authorities
have breached the Convention rights. In these cases, the doctrine serves as amere gesture,
lacking genuine deference to local values and policies. Where even no rhetorical reference
to a margin
of
appreciation is made, the Convention bodies effectively reverse the
presumption that the national authorities are acting properly, and engage in the most
stringent and critical scrutiny.
Van Dijk and Van Hoof warn of the expansion
of
the concept
of
the margin
of
appreciation, describing it as
'a
spreading disease'i'" As they argue, the margin
of
appreciation should be invoked only in the context
of
the assessment
of
the factual
situations, and not
of
the application
of
law.!" Emphasising the need for the
'autonomous' interpretation of the Convention and hence the strict judicial review, these
experts on human rights also note that even as regards the evaluation of facts, the
Strasbourg organs are 'not always at such a disadvantage as compared with the national
authorities'. 125
It is important that the Strasbourg organs should exercise their proper examination
of
the merits with particular regard to the relevance and proportionality
of
the measure at
issue. It is also crucial to define the 'autonomous' meaning of the terms
of
the
Convention, independent ofthose understood in the national jurisdiction. Moreover, rather
than adopting the 'minimalist' approach, which is based on the lowest common
denominator
of
law and practice
of
the Member States, the Strasbourg organs should
interpret the Convention in a way which better serves the protection of an individual's
right. Such an approach is compatible with the object and purpose
of
the Convention,
which is characterised as a law-making treaty. Such ambiguous terms as 'public morals'
and 'public order' may continue to leave the national authorities a certain latitude of
discretion on account
of
national particularities. Nonetheless, the constant regard must be
had to the tendencies evolving in the Member States for the wider protection
of
an
individual's right. The rigorous assessment of proportionality by way
of
such affirmative
lllethods of interpretation as the evolutive interpretation and the comparative method is
significant in the pursuit of the uniform European standards.
The Member States have submitted the protection
of
fundamental rights to the
SUpervision
of
the bodies set up by the Convention. The margin
of
appreciation must not
be invoked to permit the evasion
of
the proper supervision
of
the Convention bodies. It
lllust thus be ensured that rather than relying on the general statement, the European Court
and Commission
of
Human Rights always specify and articulate the underlying reasons
for any policy
of
deference.126
122 Macdonald, lac.cit. (note 3), at p. 122. Mahoney, lac. cit. (note 3), at pp. 81 and 87.
123 Van Dijk and Van Hoof, op.cit. (note I), at p. 604.
124
12' Ibidem, at pp. 585-586.
126 Ibidem, at p. 605.
Macdonald, lac.cit. (note 3), at p. 124.
61
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