THE MARGIN OF APPRECIATION: INTERPRETATION AND DISCRETION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS, PART 2

Steven Greer

Reader in Law, University of Bristol, United Kindom

Chapter 2

Interpreting the European Convention

While the traditional case-law studies have been of great assistance in revealing how the margin of appreciation has been applied in specific contexts, there is now a need to identify types of discretion (or types of margin of appreciation) by distinguishing interpretive processes explicit and implicit in the Convention system. When the issue is cast in this light several issues emerge from the shadows. First, the general and abstract language of the text, and the fact that the overall purpose and meaning of the Convention require interpretation, make the exercise of discretion by both national authorities and the Court inevitable.65 There can be no justification, therefore, for the view that states should be permitted no discretion whatever in interpreting their obligations.66 Secondly, it becomes clearer that the parameters of the Court’s discretion also need to be considered.67 Thirdly, it is apparent that different kinds of discretion arise in different contexts, for different reasons, and under the auspices of the various interpretive principles discussed below.68 This is not always clear in the case-law nor in the commentaries upon it. The margin of appreciation has, instead, been used by the Court as a substitute for careful and painstaking reasoning69 which makes the impact of these principles explicit. Indeed, this is one of the principal sources of confusion in, and about, Convention jurisprudence on this matter. Fourthly, not every permissible exercise of judgment or choice by national authorities is self-evidently an instance of the “margin of appreciation” since, as a matter of history, the doctrine arose in a specific context for specific reasons.70 Finally, the Strasbourg institutions tend only to refer to the margin of appreciation when a decision is finely balanced. Where they have no doubt about accepting or rejecting the state’s case they tend to make no reference to it at all.71

The quest for answers to the fundamental question – what patterns of discretion and constraint are produced for national authorities and the Court by the processes of interpretation the Convention permits in the contexts raised by specific litigation – must begin with Article 31 (1) of the Vienna Convention on the Law of Treaties 1969. This provides that international conventions should be interpreted in good faith according to the ordinary meaning of their terms in their context and in the light of their overall object and purpose. Several core principles for the interpretation of the Convention flow from this “teleological principle”. Those which have a particular bearing upon the topic in hand are discussed below.72

  1. Effective protection

The principle of effective protection, which is inherent rather than explicit in the text, holds that, since the overriding function of the Convention is the effective protection of human rights rather than the enforcement of mutual obligations between States, its provisions should not be interpreted restrictively in deference to national sovereignty.73 The Court has also expressed this idea in other terms, for example, restrictions upon rights should not undermine their “very essence”,74 and the Convention should not be interpreted in a manner which leads to unreasonable or absurd consequences.75 While the principle of effective protection in itself constitutes a potentially significant limitation upon state discretion, it does not exclude procedural and technical differences between states in the detailed implementation of Convention obligations – for example in their judicial, educational and electoral systems – provided the principle of proportionality is observed.76 As Schokkenbroek maintains, although these differences could be said to lie within states’ margins of appreciation, it would be more accurate to use a term such as “implementation freedom” (or “implementation discretion”) which, for reasons which will be explained below, is not the same thing at all.77

  1. Legality

The principle of legality (or the rule of law), a foundational ideal of the Council of Europe, holds that state action should be subject to effective formal legal constraints against the exercise of arbitrary executive or administrative power. The importance of this value is expressed in various ways throughout the text of the Convention. For example, Article 2 (1) provides that “everyone’s right to life shall be protected by law” while the right to liberty and security of the person enshrined in Article 5 is subject to a series of limited legitimate exceptions provided these are “in accordance with a procedure prescribed by law”. The right to a fair trial in Article 6 refers to adjudication by “an independent and impartial tribunal established by law”, and Article 7 prohibits conviction and punishment without law. As already noted, the restrictions on 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 found in the second paragraphs of Articles 8 to 11 are contingent upon being “prescribed by” or “in accordance with law” and “necessary in a democratic society”. Article 12 provides a “right to marry and found a family according to the national laws governing the exercise of this right”.

The task of defining what “law” means has, therefore, been one of the central tasks for the Strasbourg institutions78 and in a series of cases on Articles 8 to 11, the Court identified four questions which provide just such a test:79 does the domestic legal system sanction the infraction? is the relevant legal provision accessible to the citizen? is the legal provision sufficiently precise to enable the citizen reasonably to foresee the consequences which a given action may entail? does the law provide adequate safeguards against arbitrary interference with the respective substantive rights? The net effect is to limit the discretion of national executive and administrative bodies in favour of the discretion of national courts. Regrettably, the margin of appreciation concept is too crude to reflect this subtle allocation of responsibility. The “deference to national judicial authority” shown by the Strasbourg institutions has several consequences. First, what counts as “law” may vary between states. Domestic legal provisions may include, for this purpose, not only legislation but also judge-made law typical of common law jurisdictions,80 interna­tional legal obligations applicable to the state in question,81 and a variety of “secondary” sources, for example royal decrees, emergency decrees, and certain internal regulations based on law.82 Secondly, it has been clear since not long after the Convention was promulgated, that an application

claiming that a national court has made an error of fact is inadmissible under the Convention.83 Thirdly, on the grounds that they are best placed to judge, the Court and Commission permit national judicial authorities a broad discretion in interpreting domestic law and in determining whether or not national law-making procedures have been followed.84 Fourthly, the degree of precision required of any given law will depend upon the particular subject-matter85 and it is accepted that predicting consequences may require expert advice.86 Laws which confer discretion on executive or administrative bodies must indicate its scope, although this may properly be found in administrative guidelines or instructions rather than in the legal text itself.87 The Strasbourg organs have recognised that this is particularly necessary where a broad discretion is conferred upon the executive, especially where this is exercised in secret. For example, in a series of cases it has been decided that while secret surveillance can be justified under several of the exceptions in Article 8 (2), there must be adequate formal (though not necessarily judicial) controls which provide effective mechanisms to safeguard against arbitrary targeting or “fishing expedi­tions”.88 It can, however, be argued that there should be a clearer presumption in favour of judicial supervision in such cases, and where this has not been instituted, the respondent state should be required to explain why.89

  • Democracy

The principle of democracy, also a foundational ideal of the Council of Europe, tends to pull in the opposite direction to the principles of effective protection and legality. The Preamble to the Convention affirms that member states believe human rights and fundamental freedoms are best maintained by, amongst other things, “an effective political democracy”. Yet, paradoxically, democratic interests and the protection of human rights can conflict. Some rights theorists maintain that an individual right is a claim or an interest which, by nature, must take precedence over claims deriving from the collective interest.90 Others suggest that, although the term “right” signifies a particularly important interest worthy of strong institutional protection, this does not of itself justify prioritising it over democratic considerations.91

Marks maintains that, while the conception of democracy found in the early jurisprudence of the Convention organs was “a starkly drawn contrast with ‘totalitarianism'”, this was later more subtly contrasted with the “absence of adequate safeguards against arbitrary exercises of power even by the more benign welfare state”.92 It has since been further refined to include such notions as the separation of powers and the principle of accountability.93 The Court has recently declared that “democracy appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.”94 Both Court and Commis­sion have also attempted to identify those Convention rights which are most central to democratic society, particularly in the context of litigation on Articles 8 (2) to 11 (2) which, as already indicated, include a “democ­ratic necessity” test. Freedom of expression has consistently been singled out as particularly vital.95 But, as Marks points out,96 others have included the right of peaceful assembly,97 freedom to form and join professional associations,98 freedom from state indoctrination in education,99 the right to a fair trial,100 the right to personal liberty and security,101 freedom from arbitrary detention,102 and freedom of political association.103 It has also been held that the “essential features” of democratic society include “pluralism, tolerance and broadmindedness”,104 that “democracy does not simply mean that the views of a majority must always prevail”,105 and that a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.106 But, beyond this, little attempt has been made to articulate a distinctive theory of democracy107 with the Strasbourg institutions instead choosing to concentrate upon the necessity of a given interference on public interest grounds in the context concerned.108 Ideally the Court should have a coherent and consistent conception of the general relationship between rights, democracy and the public interest. But since the task of successfully constructing one is enormously difficult, with few insights from jurists and others to go on, it is perhaps not surprising that this is not the case.

  1. Commonality, autonomous and evolutive interpretation

The principle of autonomous interpretation, which maintains that some of the Convention’s key terms should be defined authoritatively by the Court independently of how they may be understood by member states,109 potentially restricts the discretion of the defendant state. However, in its turn, it is constrained by the principle of commonality which appears in four different forms in the Convention. First the “unity principle”, found in the Preamble, states that “the aim of the Council of Europe is the achievement of greater unity between its members” and that one of the methods by which this is to be achieved is “the maintenance and further realisation of human rights and fundamental freedoms”. Secondly, the “common understanding” principle maintains that one of the ways fundamental freedoms are best secured is through a “common under­standing and observance” of human rights. Thirdly, the “common heritage principle” affirms that the Convention derives from the “common heritage of political traditions, ideals, freedom and the rule of law” of European countries. Fourthly, the “principle of evolutive or dynamic interpretation” enables the Court to abandon outmoded conceptions of how terms were originally understood as evidenced, for example, by the travaux preparatoires, and thereby to endorse significant and durable changes in the climate of public opinion in Europe.110 However, since the various manifestations of the commonality principle, even when combined, cannot justify rigid uniformity, they still leave an indeterminate scope for national variation in the interpretation of Convention obligations.

  1. Subsidiarity and review

Several norms in the Convention system indicate that the role of the Court is subsidiary to that of member states and is essentially one of review rather than that of final court of appeal or “fourth instance”.111 Articles 1 and 13, respectively, make it clear that primary responsibility for securing the rights and freedoms provided by the Convention lies with national authorities, who also have the obligation to make effective remedies available. Applicants are also required by Article 35 to exhaust domestic enforcement procedures before petitioning the Court. One of the clearest illustrations of how these principles affect national discretion overlaps with the principle of legality since it concerns the discretion accorded domestic courts in fact­finding and in interpreting domestic law.112 The principle of review is found most clearly in Article 19, which provides that “the observance of the engagements undertaken by the High Contracting Parties shall be ensured by the European Court of Human Rights”.113

  1. Proportionality

The principle of proportionality, in a sense the alter ego of the principle of effective protection, has had a pervasive influence throughout the Convention case-law where relationships between the various concepts, norms, interests, and rights which the Convention embodies have had to be determined.114 While it is not mentioned in the text at all, it is difficult to deny that it is an entirely legitimate judicial creation. Much of the debate about what it means has been conducted in the context of the restrictions upon the rights found in Articles 8 (2) to 11 (2).

In determining whether an interference with a right is proportionate, the impact upon the right in question, the grounds for the interference, the effects upon the applicant and the context are likely to be considered. Two particularly important factors in relation to the grounds for interference concern the importance of local knowledge and the difficulty of weighing competing policy goals objectively. But it is not always clear which party has the burden of proving that the interference has been proportionate. Various phrases have been used by the Court and Commission from time to time to express the idea that the rights in the Convention should take priority with the state carrying the burden of justifying the interference.115 For example, the grounds must be “relevant and sufficient”,116 the necessity for a restriction must be “convincingly established”,117 the exceptions should be narrowly construed,118 and the interference must be justified by a “pressing social need”.119 While this, in principle, limits the scope for national discretion, the particular facts of any given case, and the circumstances prevailing in the given country at the time, may broaden it in practice.120 On the other hand, other decisions refer to the need for a “balance” between rights and exceptions.121

  • Harmonisation and pluralism

The application of all the principles discussed above is sometimes confused with two processes connected with the interpretation of the Convention – harmonisation and the preservation of pluralism – which are not, strictly speaking, principles of interpretation themselves. In certain circumstances the principle of commonality may argue in favour of harmonisation, while the principles of democracy and subsidiarity may pull in the opposite direction. Although a common European practice may, therefore, provide strong reasons for limiting state discretion in a given case, it will rarely of itself be conclusive. For example, although this was not formally the way in which it was expressed, in the gay rights cases the Court could be said to have prioritised the principles of effective protection, review, and commonality (particularly evolutive interpretation), over those of subsidiarity and democracy because the particular interest at stake – consensual adult sexual relationships – was deemed particularly vital to personal well-being.122 The result has been that the decriminalisation of consensual adult gay sex has been harmonised throughout member states. However, since the expression of sexuality in art or literature has been considered a less vital personal interest (or a type of expression of lesser importance for pluralist democracy than political expression more narrowly defined), the weight of these principles has been reversed with the result that differences in practice have been tolerated in different states.123 Harmonisation and pluralism are, therefore, the political results of a certain conception of state discretion generated by a particular judicial conception of the interaction between interpretive principles in certain contexts, rather than reasons themselves for such discretion.

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