Reader in Law, University of Bristol, United Kindom
Appendix I. The margin of appreciation illustrated from some leading cases
Dudgeon v. the United Kingdom, judgment of 22 October 1981, A 45
The applicant complained that the right to respect for his private life had been interfered with by the fact that the law in Northern Ireland criminalised homosexual activities in private between consenting adults. The Court held that there had been a violation of Article 8. While it accepted that there was widespread opposition in Northern Ireland to proposals by the United Kingdom government to de-criminalise homosexual activities between consenting males over 21, and that this had to be taken into account, this did not dispose decisively of the necessity question since the test was what was “necessary in a democratic society” and a democratic society was characterised by, amongst other things, tolerance and broadmindedness. The interference also had to be proportionate to a pressing social need, the assessment of which was within the state’s margin of appreciation subject to review at Strasbourg. The Court noted that the scope of the margin of appreciation is not the same with respect to each of the aims justifying restriction of a right and that, while in Handyside (see below) it had been held to be particularly wide in relation to the “protection of morals”, the nature of the activities in question also had to be considered. In a case such as this involving “a most intimate aspect of private life … there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of Article 8 (2)” (paragraph 52). Such justifications as there were for criminalisation, principally the moral conservatism of Northern Irish society, were outweighed by the detrimental effects which the very existence of the relevant law could have upon the private lives of gay adult males in Northern Ireland. The fact that better understanding and increased tolerance had resulted in de-criminalisation in other member states could not be overlooked either.
Mass and others v. Germany, judgment of 6 September 1978, A 28
The applicants, a public prosecutor, a judge and three lawyers, claimed that Article 10 (2) of the Basic Law of the Federal Republic of Germany, and legislation passed under it (an Act of 13 August 1968, the “G 10”) violated Articles 6 (1), 8 and 13 of the Convention by making provision for interception of mail and telecommunications. The Court held that the provisions constituted an interference with the right to respect for private life under Article 8 and that powers of secret surveillance were tolerable under the Convention “only insofar as strictly necessary for safeguarding the democratic institutions” (paragraph 42). Nevertheless, after examination of the Basic Law, the “G 10” legislation, and the supervisory arrangements, it was unanimously decided that the interferences did not amount to a violation of the Convention. They were in pursuit of a legitimate aim (national security and the prevention of disorder and crime). Although acknowledging the existence of a domestic margin of appreciation, the Court was satisfied that an adequate balance had been struck between the rights of the individual and the needs of a democratic society, especially given technical advances in espionage and the development of European terrorism. Of particular concern was that the provisions in question contained adequate safeguards against abuse. But their precise characteristics depended on all the circumstances of the case, such as the nature, scope and duration of the impugned measures, the grounds required for ordering their activation, which authorities were competent to permit, carry out and supervise them, and the kind of remedy granted by national law. In this case the Court was satisfied that a series of limiting conditions had to be satisfied under G 10 before surveillance could be imposed and that the legislation laid down strict conditions regarding the implementation of surveillance measures and the processing of information thereby obtained. Initial control was effected by an official qualified for judicial office while overall supervision was entrusted to an independent Board of five members appointed by the Bundestag on a proportional basis, and to the G 10 Commission which consisted of three members appointed by the Board for the duration of the legislature. There was no evidence, the Court held, that the surveillance system in question had been improperly operated.
Kokkinakis v. Greece, judgment of 26 September 1996, A 260-A
The applicant claimed that his arrest and prosecution for proselytising the Jehovah’s Witnesses faith violated his rights under Articles 7, 9, and 10 of the Convention. Settling the matter under Article 9 the Court held that, although prescribed by law and notwithstanding the margin of appreciation, the treatment the applicant had received was not necessary in a democratic society for the protection of the rights and freedoms of others since he had merely been bearing witness to religious belief rather than engaging in improper proselytism involving such things as pressurising people in distress or need, or using violence or brainwashing.
Handyside v. the United Kingdom, judgment of 7 December 1976, A 24
The applicant had been convicted in England in July 1971 under the Obscene Publications Acts 1959 and 1964 for publishing and distributing an English language edition of The Little Red Schoolbook and some 10 per cent of his stock had been seized. The book, originally published in Denmark but also freely available in translation in thirteen European countries, was aimed at schoolchildren between the ages of 12 and 18, was anti-authoritarian in tone, included sexually explicit information and advice, and encouraged the smoking of “pot”. The Court held that the domestic margin of appreciation embraced the question of whether those who exercised their freedom of expression had discharged the “duties and responsibilities” required of them by Article 10 (2) and that the scope of these duties depended upon the prevailing circumstances and the technical means used to express the views in question. The Court could not find a uniform conception of morals in the domestic law of the various Contracting States because “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” (paragraph 48). It was held that, because of their “direct and continuous contact” with the “vital forces of their countries”, State authorities were in a better position than an international judge to assess the “necessity” of a particular measure instituted in pursuit of the protection of morality by way of a “restriction” or “penalty” upon the right to freedom of expression (paragraph 48). But the requirements of proportionality and pressing social need had to be satisfied and domestic practice was subject to European supervision. The Court’s supervisory function, which could in no way take the place of the national authorities, required it to pay particular attention to the principles characterising a democratic society, one of the essential foundations of which was freedom of expression, which encompassed not only information and ideas likely to be favourably received but also those which were offensive, shocking or disturbing to any sector of the population. It was also held that the margin of appreciation embraced the weight to be attributed to the failure of the authorities in Northern Ireland and Scotland to take similar action, the free circulation of the book in other European countries, the reputedly routine evasion of prosecution by other more serious forms of pornography in England and Wales, and the failure of the relevant authorities to limit themselves to imposing restrictions upon the book’s distribution conditional upon the removal of the offending parts. Taking all these matters into consideration, and paying particular regard to the age of the target readership, the Court decided that the state had acted within its margin of appreciation and that there had, therefore, been no violation of Article 10.
Ungens v. Austria, judgment of 8 July 1986, A 103
The applicant, a journalist, complained that his right to freedom of expression under Article 10 had been violated by his conviction and fine following a private prosecution for defaming the Austrian Chancellor, Bruno Kreisky, in two magazine articles. Lingens had accused Kreisky of protecting former members of the SS for political reasons and had criticised him for claiming that the Nazi hunter, Simon Wiesenthal, used “mafia methods”. Re-affirming the existence of a margin of appreciation subject to European supervision in respect of Article 10 (2), the Court decided that the conviction was disproportionate and, therefore, unnecessary in a democratic society to protect the reputations of others. It was held that “freedom of political debate is at the very core of the concept of democratic society” (paragraph 42) and that the limits of acceptable criticism are wider with respect to politicians than private individuals. While this does not mean that politicians have no right to protection from defamation in their public lives, the requirements of such protection have to be weighed against the open discussion of political issues. Although the content and tone of the articles were deemed to have been fairly balanced, some expressions were judged to have been likely to harm Mr Kreisky’s reputation. However, since the controversy had occurred around the time of the general election of October 1975 amidst speculation that the Chancellor’s party, the Austrian Socialist Party, would require the support of the Austrian Liberal Party whose leader, Friedrich Peter, had been exposed by Mr Wiesenthal as a former member of the SS, they were considered part of the permissible rough and tumble of political debate. The Court held that the “truth defence” provided by Austrian law to charges of this kind was impossible to fulfil in this instance since matters of opinion based upon undisputed facts were at issue, and that this requirement in itself was a violation of Article 10 of the Convention. The sentence imposed upon Lingens also amounted to a violation of Article 10, the Court concluded, since it could have discouraged both the applicant and other journalists from making similar criticisms in other contexts.
United Communist Party of Turkey and others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions, No. 62
The applicants claimed that the dissolution of the United Communist Party of Turkey was a violation of their right to freedom of association under Article 11. The Court held that, although this measure was prescribed by law and pursued the legitimate aim of national security, the margin of appreciation is limited in relation to freedom of political association, and is accompanied by rigorous European supervision embracing domestic law and judicial decisions, on account of the vital role played by political association in a democracy, and because democracy is the only political model contemplated by the Convention. The restrictions in Article 11 had, therefore, to be construed strictly. Only “convincing and compelling reasons” (paragraph 46) could justify restrictions on the freedom of association of political parties. However, in conducting its review, the task of the Court was not to substitute its own view for that of the national authorities, nor to discover merely if they had exercised their discretion “reasonably, carefully and in good faith”. It must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued”, whether the reasons adduced were “relevant and sufficient”, and whether the national authorities had acted on an “acceptable assessment of the relevant facts” (paragraph 46). Having reviewed all the relevant facts and arguments, the Court held that the interference complained of was disproportionate to the aim pursued and, therefore, infringed Article 11 of the Convention.
Belgian Linguistic Case, judgment of 23 July 1968, A 6
Some French-speaking parents in Belgium complained that their rights under Article 2 of Protocol No. 1 and Articles 8 and 14 of the Convention were infringed because the law effectively denied their children education in French. The Court held that a difference in treatment was not necessarily discriminatory provided a reasonable and objective basis could be found and a just balance had been struck between protecting the interests of the community and respecting fundamental rights. The principle of subsidiarity prevented the Court from assuming the role of the competent national authorities who had to make reasonably proportionate and non-arbitrary decisions taking all the relevant circumstances into account. The right to education did not entail a right to be educated in any particular language, providing education was available in at least one of the national languages of a given state. However, that part of Belgian law which precluded certain children from having access to French-speaking schools in certain “special status” communes, solely on the basis of their place of residence, violated Article 14 because it did not apply uniformly to families of both national languages and the relationship between the aim and the means employed was not proportionate.
Swedish Engine Drivers Union v. Sweden, judgment of 6 February 1976, A 20
The applicant trade union (to which some 20%-25% of eligible state railway employees belonged) claimed that the refusal of the Swedish National Collective Bargaining Office to enter into agreements with it, when it had negotiated agreements with the State Employees Union (to which the remaining 75%-80% of eligible railway employees belonged), constituted a breach of Articles 11, 13 and 14 of the Convention. The Court unanimously held that there had been no violation of the Convention. While it recognised that SNCBO policy “unquestionably results in several inequalities of treatment to the prejudice of the ‘independent’ unions such as the applicant” (paragraph 46) the Court accepted that this was based on the legitimate policy of concluding agreements with the most representative unions and was within the state’s “power of appreciation” (paragraph 47).
Rasmussen v. Denmark, judgment of 28 November 1984, A 87
The applicant, who had been ordered to pay maintenance for his divorced wife and her two children, sought to dispute the paternity of one child but was refused leave by a court because the statutory time-limit had expired. He claimed breach of Articles 6, 8 and 14 on the grounds that women were not subject to such timelimits. The Court held that a difference in treatment is discriminatory only if it has no objective and reasonable justification by failing to pursue a legitimate aim, or if there is no reasonable relationship of proportionality between the aim and the means employed. The national authorities have a margin of appreciation – the scope of which will vary according to the circumstances, the subject matter and the background – in assessing whether, and to what extent, differences in otherwise similar situations justify different treatment in law. A relevant factor may be whether or not there is common ground between contracting states. The Court unanimously rejected the application on the grounds that, although the details of comparable arrangements differed from state to state, most differentiated between men and women on this matter and the law in Denmark was proportionate and pursued a legitimate aim since the interests of the child provided one reason for the different time-limits. While the applicant’s case was being considered by the Commission, the law in Denmark was changed, making the time-limits the same for men and women because, amongst other things, of increases in the number of working women with children and of men winning custody cases. But the Court held that this did not mean that the applicant had been treated in a discriminatory manner.