Steven Greer

Reader in Law, University of Bristol, United Kindom

Chapter 3

Interpretation and discretion

It is impossible to set out in the abstract how the principles of interpreta­tion discussed above interact with each other. But it is clear that they suggest different patterns of discretion and constraint according to how they are mixed, weighed and applied in different contexts. As already indicated, two particular types of discretion, mistakenly confused for instances of the margin of appreciation, flow directly from given principles: “implementation discretion” from the principles of effective protection and proportionality, and “deference to national judicial authority” from the principle of legality. But in order to obtain a clearer picture of how the principles of interpretation produce different kinds of discretion and constraint beyond this, three different contexts need to be distinguished. First, the heartland of the margin of appreciation is to be found where decisions demarcating rights from the public interest or the needs of democracy have to be taken, because settling this relationship is a task which the principles of effective protection, democracy, legality, subsidiar­ity, review, commonality and proportionality suggest should be shared by courts (including the European Court of Human Rights) and national executive and administrative institutions. Secondly, the principles of effective protection, review, autonomous and evolutive interpretation, commonality, and legality, combine to suggest that the task of defining rights and obligations in the absence of public interest or democratic considerations is essentially judicial, and, more particularly, one for the European Court of Human Rights rather than for national courts. Therefore, strictly speaking, there can be no margin of appreciation at all in this context, notwithstanding the fact that the concept has mistakenly been used in it. Thirdly, there are various hybrid circumstances, involving primarily matters of definition combined with some public interest considerations, which embody a complex mix of the elements found in the other two.

  1. Rights, democracy and the public interest

The relationship between rights, democracy and the public interest is not straightforward. There are several rival theories of what the public interest means124 but little literature on how these might relate to theories of rights.125 The complexity is compounded by the fact that a flourishing human rights regime may itself be said to be in the “public interest”. Two different categories of public interest can be distinguished in the text of the Convention. First, there is the preservation of democracy under Article 15 which, as already noted, enables all but the absolute rights to be suspended in “time of war or other public emergency threatening the life of the nation”. Although this is clearly a species of public interest, the text does not expressly use this term. Secondly, various more specific public interests have to be weighed against rights in a variety of non-emergency contexts governed by Articles 8 to 11 and Article 1 of Protocol No. 1.

  1. Democracy in crisis: derogations under Article 15

Applying the principles of interpretation discussed above, the following rationale for state discretion can be identified in relation to Article 15. First, while the text suggests an objective interpretation of both the justification for derogation and the appropriateness of the measures taken – determinable at Strasbourg under the review principle – the principles of democracy, subsidiarity, and proportionality imply a substantial measure of state discretion. This is because a real emergency places democratic authorities in a genuine dilemma between seeking to observe their normal Convention obligations and exercising their right, under Article 15, to derogate from these if the circumstances warrant it. Judging when these circumstances have arisen will usually not be easy and may involve weighing conflicting public interests in, on the one hand, a flourishing rights regime, and, on the other, in stability and order. The Convention cannot legitimately be interpreted to mean that the rights it enshrines should be upheld even if this risks the disintegration of any given national democracy as a result of restricting its capacity to tackle civil disorder effectively. Any specific emergency may invite a range of proportionate responses and it is likely that choosing between them will not be easy. There are three principal reasons why this choice should be entrusted to national authorities. First, they are closer to the “coal face” and, therefore, in principle, better placed to make the appropriate decision (the “better position rationale” to which reference has already been made). Secondly, the choice is by nature political rather than judicial and may be highly controversial in the state in question. Thirdly, different responses may be justified in different emergencies in different states. While the case-law of the Court from Ireland v. the United Kingdom126 onwards makes no explicit attempt to link the width of the margin of appreciation with different types of state (established democracy, fledgling democracy, revolutionary or repressive regime),127 this is difficult to square with the Convention’s interpretive framework since the key element in legitimising a measure of state discretion in this context lies in the plausibility of the evidence that the democratic integrity of the state in question is genuinely threatened and cannot be defended without extraordinary measures.128 Although there is, therefore, a clear justification for state discretion in relation to Article 15, a higher profile for the principle of democracy is required.

  1. Weighing rights and public Interests

Broadly the same rationale underpinning state discretion with respect to Article 15 also applies to Article 1 of Protocol No. 1 and to Articles 8 to 11. As far as Article 1 of Protocol No. 1 is concerned the process by which rights and the public interest should be weighed is straightforward, even if specific decisions are not. Although the assessment of the public interest is the critical factor, the legality requirement also imposes a procedural constraint upon interference with property rights. National executive and administrative action must, therefore, be set in a legislative context and be subject to domestic judicial review, with the principle of effective protection providing a justification for the expectation that compensation will be paid. Although the terms of such legislation may be wide, and the value of the compensation may vary, this is not necessarily illegitimate in this context given the principles of democracy and proportionality and the “better position rationale”.

However, three shortcomings in the Strasbourg jurisprudence have caused considerable conceptual confusion in the complex pattern of discretion and constraint generated by the principles of interpretation with respect to Articles 8 to 11. First, the Court and others have signally failed to draw a vital distinction: while some of the second paragraph limitations are clearly “public interests” in a “pure” sense – there can, for example, be no individual right to the essentially collective goods of “national security” or “territorial integrity” – others may be “public interests” or “individual rights” according to the circumstances. For example, the phrase “preventing the disclosure of information received in confidence” found in Article 10 (2) is capable of referring both to the public interest in the protection of confidences generally, and to the individual right that any specific confidence be respected. Even the phrase the “protection of the reputation or rights of others”, which prima facie suggests a range of purely individual rights, can involve public interest considerations. For example, since defamation is largely a matter of fact, the European Court of Human Rights has been reluctant to interfere with the judgment of domestic courts, providing it is convinced that domestic law draws an appropriate line between freedom of expression (an individual right) and unjustified damage to reputations (a violation of an individual right).129 This can best be understood as an application of the principle of legality.130 Nevertheless, wider scope for criticism of politicians than that available under domestic law has been permitted in certain circumstances by the Court on the grounds that there would otherwise be a danger of inhibiting the free expression which democratic politics require; clearly a public interest factor.131

Secondly, the Strasbourg institutions have implicitly recognised that the principles of democracy and subsidiarity suggest a measure of national executive or administrative discretion in assessing the “democratic necessity” of a particular public interest restriction upon a first paragraph right, albeit constrained by the principles of effective protection, review, commonality and proportionality. However, they have failed to appreciate that this is not true when conflicts between Convention rights and individual rights exceptions have to be resolved, as section II.B of this chapter will illustrate more fully.

Thirdly, there is confusion over whether the first paragraph rights, or the second paragraph public interest exceptions, should have priority, or whether they should be balanced against each other. As already intimated it is difficult to find a conclusive solution to this dilemma, either as a matter of political or legal theory, or by reference to the fundamental principles underpinning the Convention. However, it would be better if the Court were to select one or other of the available alternatives and stick to it, rather than making apparently arbitrary choices in the litigation before it. An appropriate way forward would be for a much clearer, although rebuttable, presumption to be made in favour of Convention rights, with the public interest exceptions construed narrowly.132 After all, it must surely be more than a matter of semantics that the Strasbourg system is concerned with the protection of human rights in a democratic context, rather than with the protection of democracy in a human rights context. States would then have a clearer burden of proving that the right in question ought to be restricted in the circumstances at issue for the sake of the public interest claimed. The implicit assumption made at Strasbourg that the Convention contains a hierarchy of rights, with some more central to democratic society than others, should also be more thoroughly and systematically articulated than is currently the case.133

  1. Defining rights and obligations

There are two particular circumstances under the Convention where determining the scope of rights and obligations does not, in principle, involve any national administrative or executive discretion. First, the absolute rights permit no discretion since, by definition, they cannot be absolute if their application varies. Secondly, the principles of effective protection, review, autonomous interpretation and commonality suggest that assessing the relationship between Convention rights, or between a Convention right and an “individual right exception” as found in Articles 8 to 11, requires the European Court of Human Rights to discharge the quintessentially judicial task of defining where one right begins and another ends. The absence of any scope for the formal calculation of the public interest excludes the possibility of any national executive or administrative discretion, although the principle of legality may permit some national judicial discretion.

  1. Absolute rights

There are only four rights in the Convention which are absolute in the sense that their restriction or suspension can never be justified, even in a state of emergency: the right not to be tortured or to be inhumanly or degradingly treated or punished;134 the right not to be held in slavery or servitude;135 the right not to be convicted for conduct which was not an offence at the time it occurred136 and the right not to have a heavier penalty imposed for an offence than the one applicable at the time the offence was committed.137 It may be possible to argue about whether or not certain conduct amounts to “torture”. But to allow a state’s definition to prevail against that of the Court would be to introduce a degree of relativity which would not only be inconsistent with the plain meaning of the text of Article 3, but which would also be at variance with the absolute and universalist spirit of these provisions. This does not prevent the Court from taking account of relevant circumstances, the assessment made by domestic courts, and the opinion of medical experts.138 It does mean, however, that the same circumstances must have the same consequences in other cases. This is why the Court in Tyrer, in effect, applied the principles of evolutive interpretation and commonality, to take into consideration whether judicially authorised corporal punishment had come to be regarded as degrading punishment in member states generally.139

As Callewaert points out, given that these considerations also apply to Article 4, it is not surprising that in none of the three decisions on this provision has the Court made any reference to a margin of appreciation.140 Although not absolute in the same sense, since it is subject to several wide- ranging restrictions and exceptions, the right to life in Article 2 is in an analogous position. The Court has not interpreted the “strictly necessary” clause to include a margin of state discretion in any of the three principal decisions on this provision either, in spite of “the fact that the domestic authorities may claim to be closer to the events at issue”.141 This is capable of being justified in terms of the principles of effective protection and autonomous interpretation which, in this context, suggest the need to avoid what would otherwise be the incongruity of permitting national variation in respect of the right to life but insisting on uniformity in respect of the lesser right to protection from degrading treatment.

  1. Reconciling conflicts between rights

The Convention, like other human rights treaties, generally neither formally prioritises rights nor prescribes any particular method of resolving conflicts between them. Subject to the principles of interpretation, these tasks are, therefore, largely at the Court’s discretion. However, one provision in particular expressly recognises the possibility that some rights should take precedence over others in specified circumstances. Article 6 (1) provides that the press and public may be excluded from trials, thereby interfering with the right to public trial, where, amongst other things, “the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. According to Harris, O’Boyle and Warbrick, “in the limited number of cases that have arisen” on this provision “there is no case in which margin of appreciation language is used and the Commission and the Court have made their own assessment of the need for a restriction without indicating that any discretion is left to the defendant state.”142 The scope for national executive or administrative discretion is limited here on two counts. First, it is a matter for the courts to determine what the “interests of juveniles” and the “private life of the parties” require since these are individual rights involving no public interest element. Secondly, while the “interests of justice” could be interpreted to mean either the public interest in the process of achieving justice or the individual right of a particular party that litigation be settled in their favour, Article 6 (1) makes the application of this clause conditional upon the “opinion of the court”, thereby excluding the possibility of administrative or executive discretion.

However, as already intimated, the Court and commentators have failed to appreciate that the reconciliation of the individual rights exceptions in the second paragraphs of Articles 8 to 11 with the rights enshrined in the first paragraphs of these provisions entails an exercise in judicial decision­making quite different from that relating to the public interest exceptions, and one which excludes the possibility of any national margin of appreciation in the strict sense. Take for example the phrase “maintaining the authority and impartiality of the judiciary” in Article 10 (2). While this is capable of referring to the integrity of the judicial branch of government (a public interest), it has been more frequently regarded by the Court as meaning the rights of parties in litigation.143 The Court has been prepared to permit only a narrow margin of appreciation here on the grounds that the domestic law and practice of member states reveal a “fairly substantial measure of common ground”144 in how this expression is to be understood (an application of the principle of commonality). However, even if it is true as a matter of fact that there is a high level of consensus between member states on what this phrase means in relation to litigants’ rights (and more evidence to substantiate it would be welcome), the margin of appreciation is an inappropriate notion here since determining the relationship between these and other Convention rights should be a matter of autonomous judicial definition and not subject to national executive or administrative policy at all. The end result, however is the same: there is little scope for national variation.

  • Definition, democracy and the public interest

Some of the exercises in interpretation under the Convention involve the definition of rights and obligations with reference also to the demarcation of their boundaries from democracy and the public interest. This implies a measure of discretion on the part of national executive and administrative authorities, regulated by the Court in a subtly different manner from that considered in section I of this chapter. The main areas in which these issues arise concern the identification and determination of the scope of positive obligations, the determination of the scope of national executive and administrative discretion in relation to adjectival clauses in exceptions to rights, and the distinction between difference and discrimination.

  1. Identifying and fulfilling positive obligations

While most of the obligations undertaken by states in acceding to the Convention are negative in character – they must refrain from activities which would violate rights – the Court has interpreted the text of certain provisions to mean that they must also act positively to protect rights. Such an extension of the requirements of the Convention inevitably reduces the scope of national executive and administrative discretion since it is no longer open to states to interpret their obligations in a manner which would exclude these extra responsibilities. The derivation of positive obligations, which has been most prevalent in litigation on Articles 8 and 11, and Article 2 of Protocol No. 1, hinges entirely on the Court’s autonomous interpretation of the terms of the Convention, allied with the principle of effective protection, and is not regulated by any ready-to-hand formula.145 Nevertheless, a measure of discretion, subject to the principles of effective protection and proportionality, arises in relation to how a particular positive obligation is discharged.146 Where states decide to provide a service which they are not required to do under the Convention – for example a system of public education – an obligation arises to manage it in a Convention-compliant manner, for example, by ensuring that it functions without discrimination.147

  1. Adjectival discretion In the definition of exceptions to rights

Subject to certain limits, the Court has been prepared to accord some discretion to national authorities in interpreting indeterminate adjectival terms found in the text – for example “reasonable”, “promptly”, etc. – and others appearing in the case-law, for example “arbitrary”, “excessive”. These issues arise most clearly in the context of Articles 5 and 6. In several cases the Strasbourg institutions have held that national authorities should be allowed a “certain margin of appreciation” in determining whether a particular arrest or detention violates the Convention for failing to fulfil the requirements of “reasonableness”, “promptness”, etc.148 The rationale here is straightforward. These terms cannot be defined absolutely. Therefore, provided they have been applied according to the Convention’s principles of interpretation, and depending upon the circumstances, a range of conduct may be deemed to comply with them which those closest to the coal face, the national authorities, are prima facie best placed to judge. For example in Brogan v. the United Kingdom the Court held that, while the struggle against terrorism could legitimately prolong the period of detention before terrorist suspects were brought before a judge, the “promptness” criterion should not be so flexible as to impair the “very essence” of the right to liberty.149 In its view even the shortest period of detention experienced by the four applicants, four days and six hours, was excessive.150 However, the development of three criteria for determining if a trial has taken place within a reasonable time – the complexity of the case, the applicant’s conduct or behaviour, the manner in which the matter was dealt with by the administrative and judicial authorities – has further restricted the scope of national discretion to determine what constitutes “reasonableness” in this context.151

  1. Difference and discrimination

It has been argued that, since it involves determining the scope of rights in relation to public policy, the kind of state discretion permitted in the context of Article 14 is similar to that available under the public interest tests in Articles 8 (2) to 11 (2).152 But there are some subtle differences, apart from the fact that Article 14 does not contain a “prescribed by law” test. In the context of Articles 8 (2) to 11 (2) the state will typically admit an interference then seek to justify it according to one of the public interest exceptions. However, in claims that Article 14 has been violated, public policy serves as a test of whether or not certain treatment can be regarded as discriminatory as a matter of definition. States are accorded a measure of discretion in drawing this distinction subject to the limits indicated in Chapter 1.111. Strictly speaking, if states commonly regard a certain practice as discriminatory, a state which regards it merely as “different” enjoys no margin of appreciation at all. However, where state practice varies, the Court has rarely rejected claims that particular treatment should be classed as “different” rather than “discriminatory” providing some plausible connection with a legitimate policy objective can be identified.153 But, the rationale for this does not involve the principle of democracy as with respect to Articles 8 (2) to 11 (2). It rests, instead, on the principles of subsidiarity and proportionality which, in this context, hold that where the distinction between difference and discrimination is hard to draw, there are no good reasons for substituting the Court’s preference for that of the defendant state, unless, according to the principle of commonality, a clearer and more objective distinction can be found in the practice of other states.