Reader in Law, University of Bristol, United Kindom
The meaning of the expression “margin of appreciation” is not immediately apparent to English-speaking lawyers and jurists since the French term from which it derives, marge d’appreciation, is more helpfully translated as “margin of assessment/appraisal/estimation”. Broadly speaking it refers to the room for manoeuvre the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights. However, the term is not found in the text of the Convention itself, nor in the travaux preparatoires,1 but first appeared in 1958 in the Commission’s report in the case brought by Greece against the United Kingdom over alleged human rights violations in Cyprus.2 Since then it has been adopted in numerous other Commission decisions and in over 700 judgments of the Court.3
A number of studies by jurists, lawyers, judges, and Strasbourg officials have attempted to describe the complex contours created in the Convention landscape by the doctrine and to identify fields of application and factors regulating its “bandwidth”.4 There is universal acknowledgement of when it first appeared, and broad consensus on several other core issues. First, in addition to Article 15, the doctrine has had a high profile in litigation relating to certain Convention rights – the right to property found in Article 1 of Protocol No. 1, the anti-discrimination provision of Article 14, and the personal freedoms enshrined in Articles 8 to 11 – but a lower profile with respect to others. Second, no simple formula can describe how it works. Third, in spite of the mountain of jurisprudence, its most striking characteristic remains its casuistic, uneven, and largely unpredictable nature. Fourth, while some have argued for the elimination of the doctrine altogether,5 most maintain that greater clarity, coherence and consistency in its application are required. But few have ventured to suggest how this might be achieved. The principal objective of this study is to make just such a proposal.
Opinion is divided over a range of other analytical issues. There is, for example, a lack of consensus over whether the doctrine embraces every kind of discretion by national institutions under the Convention, or relates only to certain types. This is linked to the question of whether it pervades the entire Convention or is restricted to specific provisions. Macdonald, for instance, maintains that “in theory there is no limit to the articles of the Convention to which the margin of appreciation could be applied for the Court has never imposed a limit”.6 However, other commentators have pointed out that it has never been invoked in respect of Article 2 (the right to life), Article 3 (the right not to be subjected to torture or to inhuman or degrading treatment or punishment), or Article 4 (the right not to be held in slavery or servitude),7 and that it has had a very limited role in relation to Articles 5 and 6.8
Jurisprudence on the core provisions
Most of the relevant literature adopts a familiar analytical method.9 Decisions of the Court and Commission are examined against specific provisions of the Convention in order to discover what kind of margin has been granted and what the determining factors have been. The latter have included whether or not the practice is common in other member states, the importance attributed to specific rights, the nature of (and grounds for) the interference, the text of the particular Convention provision, and the context – for example, whether there is an emergency or a particularly pressing and/or controversial public interest, whether the measure in question is one of a number of equally Convention-compliant alternatives, and whether or not technical expertise or detailed knowledge of local circumstances are required to make a sound judgment.10
This study will seek to move beyond this approach for two reasons. First, the literature employing this method is now so rich and complete that little more need be added to it except updating as new cases are decided. Since the most recent contributions within this paradigm are only a few years old, there seems little point in squandering the opportunity presented by this research in pursuit of such a marginal gain. But there is a second, and more important, reason for seeking a fresh approach. Adhering to the tram-lines of the Convention’s provisions, and the associated case-law, risks reproducing the confusion the margin of appreciation has spawned, when the central purpose of legal scholarship should be to try to resolve such difficulties from first principles.
This monograph argues that the legitimate exercise of discretion by states under the Convention – the key issue raised by the margin of appreciation – hinges critically on the appropriate application of a framework of principles which enable the Convention to be properly interpreted. While this is not the first time that such a link has been suggested,11 an attempt will be made in what follows to pursue the logic of this inquiry with particular rigour in order to sustain the following conclusion. Although the Convention yields a complex pattern of discretion and constraint, this is capable of being more coherently understood than is generally recognised. The unpredictability noted by many commentators is, therefore, not an inherent characteristic of the margin of appreciation notion, but stems from the reluctance of the Court to spell out all the stages of the argument from interpretive principles to conclusions about state discretion.12 It follows that if these links were made more explicit, the decisions themselves would become much more comprehensible and most, if not all, could be more easily defended.
However, before proceeding to develop this thesis it is necessary to consider the broad features of relevant Convention jurisprudence on the core provisions. Short summaries of some of the principal cases are offered in Appendix I as more detailed illustrations of how the doctrine has been applied in specific circumstances. For reasons which will be discussed below, the current study endorses the “narrow view” which means, amongst other things, that the margin of appreciation cannot strictly be said to operate beyond the confines of Article 15, from which it originated, and Articles 8 to 11, Article 14, and Article 1 of Protocol No. 1, to which it subsequently spread. Some further remarks are made later on the role of discretion in relation to other parts of the Convention.
- Article 15
It has been clear since the earliest cases brought under the Convention that Article 15, which permits states to suspend all but a handful of rights13 “in time of war or other public emergency threatening the life of the nation”, is subject to a generous margin of appreciation on the grounds that the national authorities are better placed than the Strasbourg institutions to judge when this criterion has been fulfilled (the “better position rationale”).14 In the case brought in the 1950s by Greece against the United Kingdom over alleged violations of the Convention in Cyprus,15 the United Kingdom referred to the derogation it had entered and claimed that the civil unrest on the island met the Article 15 requirements. The
Commission concluded that the Strasbourg institutions were competent both to decide whether such a derogation was justified, and whether the measures invoked were limited to those “strictly required by the exigencies of the situation”.16 However, it added that, in determining the latter, “the Government should be able to exercise a certain measure of discretion” (une certaine marge d’appreciation) n The issue received no further discussion and the dispute between Greece and the United Kingdom over the status of the island was resolved before the Committee of Ministers had time to consider the matter. A series of subsequent cases have confirmed that, although both the decision to derogate and the measures taken to combat an emergency are subject to a margin of appreciation, they remain justiciable at Strasbourg18 and, ultimately, it is for the Court to determine whether or not states have acted within “the exigencies of the situation”, giving appropriate weight to such relevant factors as the nature of the rights affected, the background circumstances, and the duration of the emergency.19
- Articles 8 to 11
Articles 8 to 11 – which enshrine the rights to respect for private and family life, home and correspondence, freedom of thought, conscience and religion, freedom of expression, and freedom of assembly and association – are drafted in a common form. The first paragraph states the right while the second lists a number of legitimate exceptions. Article 10 (2), for example, provides that the right to freedom of expression may be “subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. The margin of appreciation available to national authorities is, however, constrained by two factors found in the text of each of these provisions, and a third derived from one of the core principles of interpretation. First, it must be shown that the interference in question was necessary in a democratic society for one or more of these exceptions. It is not, however, clear when defendant states have the responsibility to prove that this was the case, or litigants to show that it was not.20 Second, the restriction must be in accordance with, or prescribed by, law21 and, third, proportionate to a pressing social need.22
As with Article 15, although the text of Articles 8 to 11 suggests an objective test of necessity, the proportionality principle permits variable margins of appreciation. The scope of these in relation to each of these provisions is well documented23 and their character is principally determined, in this context, by the assessment made at Strasbourg of the relative importance of the right and the exception in the specific circumstances, particularly in the light of any relevant common European standard. States have, for example, been allowed a wide margin of appreciation with respect to interferences with rights defended on national security grounds although this has not always been to their advantage.24 Nor has the granting of a wide margin prevented the Strasbourg institutions from conducting thorough reviews of secret surveillance processes when these have been considered appropriate.25 A broad margin has also been permitted with respect to the “protection of health or morals” on the grounds that these notions vary between member states. The few decisions on the protection of health have upheld practices such as compulsory participation by prisoners in cleaning cells,26 the obligation upon soldiers to have their hair cut so that it does not touch their collars,27 and the criminalisation of consensual adult sado-masochistic homosexual practices where the harm inflicted was deemed severe.28 However, a further distinction has been drawn between the expression of sexuality in art or literature – where a broad margin of appreciation has been granted on the grounds that different societies have different views as to what is appropriate29 – and the expression of sexuality in consensual adult non- sado-masochistic gay relationships, where there is now no margin of appreciation on this ground at all because the Court has taken the view that even a strong national abhorrence of such behaviour cannot prevail against the intrinsic importance of the right in question.30 Variable margins of appreciation have also been granted in relation to the “prevention of disorder or crime” exception, often pleaded to justify interferences with the rights provided by Articles 8 and 10. Few generalisations can be made about these decisions, however, since the Court’s view of the proportionality of the official conduct, together with its assessment of the intrinsic importance of the right and this particular public interest in the circumstances, have played critical roles in determining the outcome.31
- Article 14
The text of the anti-discrimination provision found in Article 14 suggests that discrimination is an objective matter. But in the seminal Belgian Linguistics case the Court defined discrimination as a difference between categories of person in the exercise of Convention rights which has “no reasonable and objective justification”.32 This has given rise to a distinction between “different” treatment, which can be justified under the Convention, and “discrimination”, which would violate Article 14.33 In a series of decisions four factors have emerged as guidelines for drawing the line. First, it must be shown that the treatment in question was less favourable than that received by other comparable groups, the identity of which will usually be determined objectively by the complaint itself. For example, if the alleged discrimination is based on gender, the comparator will be members of the opposite sex not suffering the same alleged disadvantage.34 Secondly, it is for the state to show that, as a matter of fact supported by evidence, the practice is reasonable and rational. This will require reference to the policy goals which it is said to facilitate.35 Thirdly, the effects of the treatment must be disproportionate in relation to the pursuit of the policy objective and must fail to strike “a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention”.36
The second and third factors have provided the basis for variable margins of appreciation, and a fourth factor – whether the practice in question is regarded as non-discriminatory in other democratic states – has been “of major relevance” in determining their scope.37 Since drawing the line between difference and discrimination involves matters of social policy, the width of the margin of appreciation “will vary according to the circumstance, the subject-matter and its background”.38 The policy issue can, however, cut both ways. As Schokkenbroek points out, the Court has assumed certain kinds of differential treatment to be prima facie discriminatory – for example those based on sex,39 religion,40 illegitimacy,41 nationality42 – on the express or implicit grounds that they run counter to major priorities of European social policy. The same is arguably true of race but the matter has yet to be fully litigated.43
Less thoroughly discussed in the literature is the fact that state discretion arises at a number of different levels in this context, and is constrained by a variety of factors not found in relation to other provisions of the Convention. Since a breach of Article 14 can only be pleaded in respect of other rights and freedoms in the Convention, albeit even if none of these has been violated in any other way,44 it, therefore, accommodates whatever kinds of discretion are associated with these other provisions. For example, the wide margin of appreciation permitted in respect of Article 1 of Protocol No. 1 “bears heavily on the Court’s examination of the discrimination issue.”45
- Article 1 of Protocol No. 1
Although the right to property was considered fundamental by the classical natural rights thinkers, by the time the Convention was drafted its status and limits had become more controversial. It was, therefore, not included in the main body of the treaty but appeared in the Protocol (now generally called Protocol No. 1 following the adoption of further protocols). The text of Article 1 of this Protocol is the product of a compromise, with the term “peaceful enjoyment of possessions” taking the place of the stronger “right to property”. Of all the rights in the Convention this is limited by the most wide-ranging restrictions, reflecting an awareness that the liberal democratic state may have legitimate grounds for interfering with private property in the interests of, for example, welfare, economic planning, and regulation.46 These restrictions are of two kinds. According to the first paragraph, persons may legitimately be deprived of their possessions “subject to the conditions provided for by law and by the general principles of international law” (the deprivation provision). The second paragraph adds that this does not impair the right of the state to “enforce such laws as it deems necessary [italics added] 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 control provision). Since the text of the deprivation provision, in common with similar clauses in Article 15 and Articles 8 to 11, neither suggests nor excludes an objective test, it was open to the Strasbourg institutions to grant a margin of appreciation to states in identifying the public interest. In practice this has meant that there is a very wide discretion to interfere with private property provided reasonable compensation is paid to those who suffer as a result.47 However, the general interest clause in the control provision clearly suggests a subjective test and by implication an even more generous margin of appreciation. According to Winisdoerffer48, in its early case-law49 the Court interpreted this to mean that states were the sole judges of the necessity of an interference, but later the principle of proportionality was incorpo- rated.50 In this context this requires reference to the circumstances of each case,51 with particular attention being paid to the avoidance of arbitrariness, the possibility of other alternatives for achieving the aim in question, the availability of procedural safeguards, and the consequences of the interference for those affected by it.52
There has, however, been no attempt to specify what either the general or the public interest means in this context and, although the Court often uses the balance metaphor, the breadth of the Article 1 provisions effectively means that, in order to succeed, the applicant must show that a restriction provided by legislation was unreasonable.53 As Winisdoerffer54 points out, in practice the Court’s review will, therefore, be limited to considering whether, in the abstract, an interference under the deprivation provision pursued a legitimate interest such as combating tax evasion,55 promoting social justice,56 or regulating agriculture and forestry.57 Likewise, under the control provision, review at Strasbourg will be confined to determining whether, in the abstract, the aim was legitimate, for example, for the protection of morals,58 the regulation of the sale of alcohol,59 town and country planning,60 protection of the environment,61 housing policy,62 and crime control.63 It has been argued that the scope of state discretion, in relation to both the aim pursued and the proportionality of the measures introduced to achieve it, remains so large under both provisions that it is only in the most extreme cases that the Court is likely to decide that Article 1 of Protocol No. 1 has been violated.64 But this is difficult to criticise, provided, as the Court expects, that those whose property is affected are compensated.