THE MARGIN OF APPRECIATION: INTERPRETATION AND DISCRETION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS, PART 6

Steven Greer

Reader in Law, University of Bristol, United Kindom

Article 15

The Cyprus case (Greece v. the United Kingdom) (1958-59) 2 Yearbook of the European Convention on Human Rights 174-179

Greece complained about alleged violations of the Convention by the United Kingdom in Cyprus. The United Kingdom responded by referring to the derogation it had entered under Article 15 and claimed that the civil unrest there fulfilled the relevant requirements. The Commission declared itself competent 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” as provided by Article 15. However, it added that, in respect of the latter, “the Government should

be able to exercise a certain measure of discretion” (certaine marge d’appreciation). 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.

Lawless v. Ireland, Commission report of 19 December 1959, B (1960-61), judgment of 1 July 1961, A 3

The applicant claimed that his detention without trial under emergency powers in the Republic of Ireland because of his suspected involvement with the IRA (then actively engaged in terrorist activities in border areas of Northern Ireland) violated his rights under Articles 5, 6 and 7 of the Convention. Prior to his detention the Irish government had notified the Secretary General of the Council of Europe that it wished to derogate from the Convention under Article 15 although the precise provisions were not specified (Report, paragraph 72). While the Commission’s report refers to the margin of appreciation (see summary on p. 203), it adds little of substance to the remarks made in the Cyprus case. The judgment of the Court, on the other hand, contains no reference to it at all but instead states that an emer­gency was “reasonably deduced by the Irish government from a combination of factors” (paragraph 28). The Court upheld the derogation on the grounds that “the life of the nation” was threatened by the IRA, a secret army engaged in unconstitu­tional activities determined to use violence to achieve its objectives both inside and outside the national territory, and actively engaged in an escalating terrorist campaign in Northern Ireland in 1956 and 1957. Having considered relevant Irish law, the Court also deemed the internment of the applicant to be proportionate in the circumstances.

The Creek Case (Denmark, Norway, Sweden and the Netherlands v. Greece), Commission report of 5 November 1960, 12 Yearbook of the European Conven­tion on Human Rights (1969)

Following a coup d’etat in Greece in 1967, the military government suspended certain constitutional provisions and notified the Secretary General of the Council of Europe that it wished to derogate from the Convention under Article 15. In a case brought by Denmark, Norway, Sweden and the Netherlands, the Commission held that, although both constitutional and revolutionary governments enjoy a margin of appreciation in relation to Article 15, the burden in the present application lay with the Greek military government to prove that derogation was justified (p. 73). Having carefully considered the evidence, the majority was not satisfied that the two-year period of political instability preceding the coup was so serious as to threaten the life of the nation. Nor was it convinced that disorder following the coup could not have been adequately handled by ordinary measures.

Ireland v. the United Kingdom, judgment of 18 January 1978, A 25

In 1976 Ireland applied to the Court complaining that the United Kingdom was in breach of Articles 3, 5, 6, 14 and 15 of the Convention in having instituted in Northern Ireland an anti-terrorist regime of internment without trial which, it was alleged, operated in a discriminatory manner and which had resulted in the ill- treatment of some detainees. Although the existence of an emergency justifying a derogation under Article 15 was not in dispute, the existence of a wide margin of appreciation was confirmed on the grounds that “by reason of their direct and continuous contact with the pressing needs of the moment the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it” (paragraph 207). However, the Court added that this discretion was subject to review at Strasbourg according to the criterion that states must not exceed what is “strictly required by the exigencies” of the situation. On the substantive issue the Court held that “five techniques” of sensory deprivation to which some of the detainees had been subjected amounted to inhuman and degrading treatment, but, contrary to the Commission’s view, did not constitute torture. They were, therefore, in violation of Article 3 which is non-derogable even in an emergency.

Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, A 258-B The applicants were detained and questioned under the United Kingdom’s anti­terrorist legislation for periods of 6 days 14 hours and 4 days 6 hours respectively. They complained that their rights under Article 5 (3) to be brought promptly before a judicial authority had been violated. The United Kingdom government relied on its derogation of 23 December 1988. The Court affirmed the existence of a wide margin of appreciation, both in relation to the decision to derogate and the measures taken as a result, justified by the “better position rationale” (para­graph 43) and subject to European supervision where appropriate weight would be given to such relevant factors as the nature of the rights affected, the circum­stances, and the duration of the emergency. But it was not held that it is the role of the Court to substitute its view as to what measures were most appropriate or expedient since the Government has direct responsibility for striking the proper balance between taking effective action and respecting individual rights.

Article 1 of Protocol No. 1

Sporrong and Lonnroth v. Sweden, judgment of 23 September 1982, A 52

The applicants complained that the length of the periods during which their property in Stockholm had been subject to expropriation permits (23 years in Sporrong’s case and 8 in Lonnroth’s) accompanied by prohibitions on construction (25 years in Sporrong’s case and 12 in Lonnroth’s) infringed their rights under

Article 1 of Protocol No. 1. The Court held that, although technically the permits had not “deprived” the owners of their property, their capacity to use and dispose of it had been significantly reduced in practice. While the prohibitions on construc­tion were deemed to constitute measures relating to the control of property within the second paragraph of Article 1, the expropriation permits were regarded as constituting an interference with the peaceful enjoyment of property under the first paragraph. A majority of 10:9 held that, taking both measures together in the context of planning and re-development of Sweden’s capital city, a fair balance had not been struck between the interests of the community and the rights of the applicants because the latter “bore an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of seeking a reduction of the time-limits or of claiming compensation” (paragraph 73). Applying the same test as that used by the majority, eight of the nine dissentients concluded that, given the wide margin of appreciation available in such cases, there had been no violation of Article 1 of Protocol No. 1.

Lithgow and others v. the United Kingdom, judgment of 8 July 1986, A 102

The applicants claimed that the nationalisation of their property under the Aircraft and Shipbuilding Industries Act 1977 resulted in a violation of their rights under Article 1 of Protocol No. 1 because the compensation they had received was grossly inadequate and discriminatory. The Court held that the obligation to pay compensation in such circumstances derived from a condition implicit in Article 1 of Protocol No. 1 as a whole, and not from the “public interest” clause which con­cerned the justifications and motives for taking the property and not its value as such. Although the value of compensation was relevant to whether or not a fair balance had been struck between the interests of the community and the rights of the applicants, Article 1 did not guarantee a right to reimbursement of the full market value since this may not be in the public interest where economic reform or social justice is involved. Given their direct knowledge of the society concerned, and that decisions to enact nationalisation legislation commonly involved issues on which there was a range of opinion within any democratic society, the national authorities were in a better position than an international tribunal to judge what was appropriate in the circumstances and therefore had a wide margin of apprecia­tion. Only when the award of compensation was without reasonable foundation would the Court, in its review, impugn the decision. A majority of the Court held that this was not the case here.

Phocas v. France, judgment of 23 April 1996, Reports of Judgments and Decisions,

  • II, No. 7, 519

The applicant complained that his right to peaceful enjoyment of his property had been violated by the duration of restrictions imposed (from 31 July 1965 to 22 January 1982) in respect of a road improvement scheme. The Court decided that there had been no violation of Article 1 of Protocol No. 1. While states enjoy a “wide margin of appreciation in order to implement their town-planning policy” (paragraph 55), it was held that a fair balance had been struck between the interests of the community and the rights of the individual because the applicant had had the opportunity to sell his property to the local authority at a price determined by an expropriations judge but had failed to do so within the specified time limit.

Appendix II. Council of Europe documentation

Yearbook of the European Convention on Human Rights, Vols. 1- , 1959- , Martinus Nijhoff Publishers, The Hague/London/Boston. Contains selected deci­sions of the European Commission of Human Rights; summaries of the judgments of the European Court of Human Rights; and the human rights (DH) resolutions of the Committee of Ministers.

European Commission of Human Rights

Collection of decisions of the European Commission of Human Rights, Vols. 1-46, 1960-1974, Council of Europe

Decisions and reports (DR), Vols. 1- , 1975- , Council of Europe

European Court of Human Rights

Series A: Judgments and decisions, Vols. 1-338, 1961-1995, Carl Heymanns Verlag, Cologne

Series B: Pleadings, oral arguments and documents, Vols. 1-104, 1961-1995, Carl Heymanns Verlag, Cologne

Reports of judgments and decisions, 1996- , Carl Heymanns Verlag, Cologne

Committee of Ministers

Collection of resolutions adopted by the Committee of Ministers in application of Articles 32 and 54 of the European Convention on Human Rights, 1959-1989, 1993, Council of Europe. (This collection is updated by means of supplements published at approximately annual intervals.)

Gazette – Committee of Ministers from January 1999

Internet

Council of Europe’s Web site: http://www.coe.int

Human Rights Web, Directorate of Human Rights: http://www.humanrights.coe.int

European Court of Human Rights: http://www.echr.coe.int Committee of Ministers of the Council of Europe: http://www.cm.coe.int/

Notes

  • C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (The Hague/Boston/London: Kluwer, 1996) p. 14.
  • The Cyprus Case (Greece v. the United Kingdom) (1958-59) 2 Yearbook of the European Convention on Human Rights, 172-197.
  • Editors’ note, “The Doctrine of the Margin of Appreciation under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice” (1998) 19 Human Rights Law Journal
  • The most comprehensive are Yourow, cit. and Y. Arai, “The Margin of Appreciation Doctrine in the Jurisprudence of the European Convention on Human Rights” (unpublished PhD thesis submitted to the University of Cambridge, 21 April 1998). Others include P. Mahoney et al., “The Doctrine of the Margin of Apprecia­tion under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice” (1998) 19 Human Rights Law Journal 1-36; N. Lavender, “The Problem of the Margin of Appreciation” [1997] 4 European Human Rights Law Review 380-390; E. Brems, “The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights” (1996) 56 Zeitschrift fur Auslandisches Offentliches Recht und Volkrecht 240-341; T.H. Jones, “The Devaluation of Human Rights Under the European Convention” (1995) Public Law 430-449; R.St.J. Macdonald, “The Margin of Appreciation” in R.St.J. Macdonald, F. Matscher and H. Petzold (eds.), The European System for the Protection of Human Rights (Dordrecht/Boston/London: Martinus Nijhoff, 1993) 83-124 and “The Margin of Appreciation in the Jurisprudence of the European Court of Human Rights” in A. Clapham and F. Emmert (eds.), Collected Courses of the Academy of European Law: Vol. 2, Book 2 – The Protection of Human Rights in Europe (Dordrecht/Boston/London: Martinus Nijhoff, 1990) 99-161, and “The Margin of Appreciation in the Jurisprudence of the European Court of Human Rights” in Le droit international a I’heure de sa codification, £tudes en I’honneur de Roberto Ago (International Law at the Time of its Codification, Essays in Honour of Roberto Ago) (Milan: Giuffre, 1987) 187-208; H.C. Yourow, “The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence” (1987) 3 Connecticut Journal of International Law 111-159; T.A. O’Donnell, “The Margin of Appreciation Doctrine: Standards in the Jurispru­dence of the European Court of Human Rights” (1982) 4 Human Rights Quarterly 474-496; C.S. Feingold, “The Doctrine of Margin of Appreciation and the European Convention on Human Rights” (1977-78) 53 Notre Dame Lawyer 90-107; C.C. Morrisson, “Margin of Appreciation in European Human Rights Law” (1973) 6 Revue des Droits de I’Homme 263-286.
  • For example, in a partly dissenting opinion, Judge De Meyer stated that it was “high time for the Court to banish that concept from its reasoning” because “where human rights are concerned there is no room for a margin of appreciation which would enable the states to decide what is acceptable and what is not” (Z v. Finland, judgment of 25 February 1997, Reports of Judgments and Decisions
  • I, 323, paragraph III).
  • St.J. Macdonald (1987), op. cit., p. 192.
  • Callewaert, “Is there a Margin of Appreciation in the Application of Articles 2, 3 and 4 of the Convention?” (1998) 19 Human Rights Law Journal 6-9.
  • Schokkenbroek, “The Basis, Nature and Application of the Margin-of- Appreciation Doctrine in the Case-Law of the European Court of Human Rights” (1998) 19 Human Rights Law Journal 30-36, 34; Van Dijk and Van Hoof, Theory and practice of the European Convention on Human Rights (The Hague/London/Boston: Kluwer, 1998) 86; Arai, op. cit., pp. 28 and 49.
  • Two notable exceptions are P. Mahoney, “Marvellous Richness of Diversity or Invidious Cultural Relativism” (1998) 19 Human Rights Law Journal 1-6 and J. Schokkenbroek, cit.
  • See, e.g., Mahoney, cit., pp. 5-6; Schokkenbroek, op. cit., pp. 34-35; Brems, op. cit., pp. 257-293.
  • See for example Yourow (1996), cit., Chapter 4; Arai, op. cit., Chapter 11; Mahoney, op. cit., pp. 1-4; Schokkenbroek, op. cit.
  • A recent example of an underdeveloped, but nonetheless encouraging, attempt to do just this can be found in United Communist Party of Turkey and others Turkey, judgment of 30 October 1998, Reports of Judgments and Decisions,
  • I, 1, paragraphs 28-29.
  • The right not to be subjected to torture or to inhuman or degrading treatment or punishment (Article 3); the right not to be held in slavery or servitude (Arti­cle 4 (1)); the right not to be convicted for conduct which was not an offence under national or international law at the time it occurred (Article 7 (1)); and the right not to have a heavier penalty imposed for an offence than the one applicable at the time the offence was committed (Article 7 (1)).
  • For further details see M. O’Boyle, “The Margin of Appreciation and Derogation under Article 15: Ritual Incantation or Principle” [1998] 19 Human Rights Law Journal 23-29; Arai, cit., Chapter 10; Yourow (1996), op. cit., pp. 15-21.
  • The Cyprus Case, op.,174-9
  • Article 15 (1).
  • The Cyprus case, op. cit., 176.
  • LawlessIreland, Commission report of 19 December 1959, Series B (1960-61) p. 82, judgment of 1 July 1961, A 3; The Greek Case (Denmark, Norway, Sweden and the Netherlands v. Greece), Commission report of 5 November 1960, 12 Yearbook (1969) pp. 72-76; Ireland v. the United Kingdom, judgment of 18 January 1978, A 25, paragraph 207; Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, A 258-B, paragraph 43; Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions, 1996-VI, 2260, para­graph 68.
  • Brannigan and McBride, ; Aksoy, ibid.
  • See S. Greer, The Exceptions to Articles 8 to 11 of the European Convention on Human Rights (Strasbourg: Council of Europe Human Rights Files No. 15, 1997) 14-17.
  • See Chapter 2.II.
  • Handysidethe United Kingdom, judgment of 7 December 1976, A 24, paragraphs 48-50; Silver v. the United Kingdom, judgment of 25 March 1983, A 61, paragraphs 97-98; Lingens v. Austria, judgment of 8 July 1986, A 103, paragraphs 37-41. See also section 111.6.
  • See, for example, Yourow (1996), cit., Chapter 3.C.; Arai, op. cit., Chapters 4­7. Other studies have focused on the limitation clauses across the range of these provisions. See, for example, Greer, op. cit.; F.G. Jacobs, “The ‘Limitation Clauses’ of the European Convention on Human Rights” in A. de Mestral, The Limitation of Human Rights in Comparative Constitutional Law (Cowansville: Les Editions Yvon

Blais Inc., 1986) 21-40; B. Hovius, “The Limitation Clauses of the European Convention on Human Rights: A Guide for the Application of Section 1 of the Charter?” (1985) 17 Ottowa Law Review 213-61.

  • For example in Ochsenberger Austria (Appl. No. 21318/93) the Commission held that the prohibition of Nazi views in Austrian law was justified under Article 10 (2) in the interests of national security, territorial integrity and the prevention of disorder and crime whereas in Vereniging Weekblad “Bluf!” v. the Netherlands, judgment of 9 February 1995, A 306 the Court held that the banning of an issue of a left-wing magazine containing an out-of-date confidential security service report could not be justified under the national security exception to Article 10 (2).
  • See, for example, Klass v. the Federal Republic of Germany, judgment of 6 September 1978, A 28; Leander Sweden, judgment of 26 March 1987, A 116; Greer, op. cit., pp. 18-23.
  • No. 8231/78, X v. the United Kingdom, D R 28 (1982) 5.
  • See, e.g. Appl. No. 8209/78, Peter Stutter Switzerland, D R 16 (1979) 166.
  • Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports of Judgments and Decisions, 1997-I, 120.
  • Handyside, cit.; Muller v. Switzerland, judgment of 24 May 1988, A 133.
  • Dudgeon v. the United Kingdom, judgment of 22 October 1981, A 45; Modinos Cyprus, judgment of 22 April 1993, A 259; Norris v. Ireland, judgment of 26 October 1988, A 142.
  • See Greer, cit., pp. 29-32.
  • Belgian Linguistic Case, judgment of 23 July 1968, A 6, paragraph 10.
  • See, for example, Swedish Engine Drivers Union v. Sweden, judgment of 6 February 1976, A 20, paragraph 47.
  • Abdulaziz,Cabales, Balkandali v. the United Kingdom, judgment of 28 May 1985, A 94, paragraph 74.
  • paragraphs 74-83.
  • Belgian Linguistics Case, op. cit., 34-35.
  • Schokkenbroek, “The Prohibition of Discrimination in Article 14 of the Convention and the Margin of Appreciation” (1998) 19 Human Rights Law Journal 20, 21.
  • RasmussenDenmark, judgment of 28 November 1984, A 87, paragraph 40.
  • Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment, cit., paragraph 78; Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, A 263, paragraph 67; Burghartz v. Switzerland, judgment of 22 February 1994, A 280-B, paragraph 27; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, A 291-B, paragraph 24; Van Ralte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-1, 173, paragraph 39. However, a difference in treatment between the sexes in the time-limits for bringing paternity proceedings was not regarded as discriminatory in Rasmussen, because such differences were common throughout member states at the time and expressed a legitimate policy objective related to the protection of the interests of the child (ibid., paragraph 41).
  • See, for example, Hoffman Austria, judgment of 23 June 1993, A 255-C, paragraph 36; Canea Catholic Church v. Greece, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, 2843, paragraph 47.
  • MarckxBelgium, judgment of 13 June 1979, A 31, op. cit., paragraphs 48, 62 and 65; Inze v. Austria, judgment of 28 October 1987, A 126, paragraph 41.
  • GaygusuzAustria, judgment of 16 September 1996, Reports of Judgments and Decisions, 1996-IV, 1129, paragraph 42. A distinction is, however, drawn between citizens of the European Union and those from outside (Moustaquim v. Belgium, judgment of 18 February 1991, A 193, paragraph 49; C v. Belgium, judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, 915, paragraph 38).
  • See Schokkenbroek, cit., p. 22.
  • Belgian Linguistics Case, Rep., (1965) B.3, paragraph 400; Inze v. Austria, op. cit., paragraphs 43-47. Where it has decided that the applicant’s rights under other provisions of the Convention have been violated, the Court will only consider whether Article 14 has been breached if “a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case” (Airey v. Ireland, judgment of 9 October 1979, A. 32, paragraph 30; Dudgeon, judgment, op. cit., paragraph 67.)
  • Schokkenbroek, cit., p. 22; James and others v. the United Kingdom, judgment of 21 February 1986, A 98, paragraph 77; Lithgow and others v. the United Kingdom, judgment of 8 July 1986, A 102, paragraph 77; Gillow v. the United Kingdom, judgment of 24 November 1986, A 109, paragraph 66.
  • For a detailed account of the pre-1990 central cases see R.St.J. Macdonald (1990), cit., pp. 139-156.
  • Winisdoerffer, “Margin of Appreciation and Article 1 of Protocol No. 1” [1998] Human Rights Law Journal 18-20, 20.
  • Handyside, judgment, cit., paragraph 62; Marckx v. Belgium, judgment, op. cit., paragraph 64.
  • Mellacher and othersAustria, judgment of 19 December 1989, A 169, paragraph 47.
  • HentrichFrance, judgment of 22 September 1994, A 296-A, paragraphs 45-49.
  • Winisdoerffer, cit., p. 18; R.St.J. Macdonald (1990), op. cit., p. 145.
  • Winisdoerffer,
  • HentrichFrance, judgment, op. cit., paragraph 39.
  • James and others, judgment, cit., paragraph 47.
  • Hakansson and SturessonSweden, judgment of 21 February 1990, A 171-A, paragraph 44; The Holy Monasteries v. Greece, judgment of 9 December 1994, A 301-A, paragraph 69.
  • Handyside, judgment, cit., paragraph 62.
  • Tre Traktorer ABSweden, judgment of 7 July 1989, A 159, paragraph 57.
  • Allan JacobsonSweden, judgment of 25 October 1989, A 163, paragraph 57.
  • Pine ValleyIreland, judgment of 29 November 1991, A 222, paragraph 57.
  • Mellacher and othersAustria, judgment of 19 December 1989, A 169, paragraph 47.
  • VendittelliItaly, judgment of 18 July 1994, A 293-A, paragraph 38.
  • Winisdoerffer, cit., p. 19.
  • As others, for example Mahoney, cit., p. 2, have also observed. For general studies of the role of discretion in law see K. Hawkins (ed.), The Uses of Discretion (Oxford: Clarendon Press, 1992) and D. Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford: Clarendon Press, 1990).
  • As observed by Mahoney, cit., p. 1 and Schokkenbroek, op. cit., p. 35.
  • Mahoney, cit., p. 2.
  • Schokkenbroek, cit., pp. 30-36 also distinguishes between the margin of appreciation and other kinds of discretion, but for different reasons.
  • As noted by others, for example Lord Lester of Herne Hill, QC, “The European Convention on Human Rights in the New Architecture of Europe: General Report”, Proceedings of the 8th International Colloquy on the European Convention on Human Rights (Strasbourg: Council of Europe, 1995) 227, 236-37; R.St.J. Mac­donald (1993), cit., p. 124.
  • Schokkenbroek, cit., pp. 31-34.
  • , p. 34.
  • General discussions of the principles of interpretation relating to the Convention can be found in F. Ost, “The Original Canons of Interpretation of the European Court of Human Rights” in M. Delmas-Marty and C. Chodkiewicz (eds.), The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions, (Dordrecht/Boston/London: Martinus Nijhoff, 1992) 238-318; F. Matscher, “Methods of Interpretation of the Convention” in R.St.J. MacDonald, et al. (eds.), cit., pp. 63-81; Van Dijk and Van Hoof, op. cit., Chapter II.
  • See Van Dijk and Van Hoof, , pp. 74-76.
  • See, for example, Brems, cit., pp. 289-290.
  • Ost, cit., p. 304.
  • Schokkenbroek, cit., p. 32.
  • Schokkenbroek, cit., p. 33. See also Greer, op. cit., pp. 9-13.
  • HuvigFrance, judgment of 24 April 1990, A 176-B, paragraphs 26-35; Kruslin v. France, judgment of 24 April 1990, A 176-B, paragraphs 27-36; Malone v. the United Kingdom, judgment of 2 August 1984, A 82, paragraphs 66-68; Leander, judgment, op. cit., paragraphs 50-52; Silver, op. cit., paragraphs 85-88; Sunday Times v. the United Kingdom, judgment of 26 April 1979, A 30, paragraphs 46-49.
  • Malone, judgment, cit., paragraph 66; Sunday Times, judgment, op. cit., paragraph 47. However, this is not by any means confined to common law jurisdictions. See the extensive discussion about French case-law in Kruslin, judgment, op. cit., paras 28-29 and about German case-law in Barthold v. the Federal Republic of Germany, judgment of 25 March 1985, A 90, paragraph 46 and in Markt Intern Verlag GmbH and Klaus Beerman v. Germany, judgment of 20 November 1989, A 165, paragraphs 28-30.
  • See Groppera Radio AG Switzerland, judgment of 28 March 1990, A 173,

paragraphs 65-68 and especially the dissenting judgment of Judge Bernhardt.

  • See De Wilde, Ooms and Versyp (the “Vagrancy cases”), judgment of 18 June 1971, A 12, paragraph 93; Appl. No. 101761, X the Netherlands, Coll 8 (1962) 1, 4; Appl. No. 1983/63, Wallace v. the Netherlands, Yearbook VIII (1965) 228, 246 and 264; Appl. No. 7736/76, X v. Switzerland, D R 9 (1970) 206, 207; Appl. No. 7308/75, X v. the United Kingdom, D R 16 (1979) 32, 34-35.
  • X v. the Federal Republic of Germany, No 254/57, (1957) 1 YB 150, 152.
  • Kruslin, judgment, cit., paragraph 29; Barthold, judgment, op. cit., para 48. In Campbell v. the United Kingdom, the Court held that “it is not, in principle, for the Court to examine the validity of secondary legislation. This is primarily a matter which falls within the competence of national courts..” (judgment of 25 March 1992, A 233, paragraph 37). However, where the Court decides that the law itself violates the Convention, it will not hesitate to include relevant court decisions in its review of the necessity and proportionality of an impugned measure (Kokkinakis v. Greece, judgment of 25 May 1993, A 260-A, paragraph 47).
  • HerczegfalvyAustria, judgment of 24 September 1992, A 242, paragraph 68; Sunday Times, judgment, op. cit., paragraph 49. In Herczegfalvy the Court held that such specifications were particularly important where, as in this case, a psychiatric patient under detention alleged improper interference with correspon­dence, since such persons were “frequently at the mercy of the medical authorities so that their correspondence is their only contact with the outside world.” (op. cit., paragraphs 89-91).
  • Groppera, judgment, cit., paragraph 68.
  • Silver, judgment, cit., paragraph 88; Herczegfalvy, judgment, op. cit., paragraph 89; Observer/Guardian, judgment of 26 November 1991, A 217, paragraph 65 and in Sunday Times, judgment of 26 November 1991, A 217, paragraph 63; Kruslin, judgment, op. cit., paragraph 33; Malone, judgment, op. cit., paragraphs 67 and 68.
  • Leander, judgment, cit., paragraph 51; Malone, judgment, op. cit.; Kruslin, judgment, op. cit.; Leander, judgment, op. cit.; Klass, judgment, op. cit.; Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions, 1998-II, 524; Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions, 1997-III, 1004.
  • See Greer, cit., pp. 22-23.
  • See, for example, R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977).
  • See, for example, J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986).
  • Marks, “The European Convention on Human Rights and its ‘Democratic Society’” (1995) 66 British Yearbook on International Law, 209-238, 211.
  • , p. 212.
  • United Communist Party of Turkey v. Turkey, judgment, cit., paragraph 45.
  • Lingens, judgment, cit., paragraph 42; Observer/Guardian, judgment, op. cit., paragraph 59; Thorgeirson v. Iceland, judgment of 25 June 1992, A 239, para­graph 63; Castells v. Spain, judgment of 23 April 1992, A 236, paragraph 46.
  • Marks, op. cit., 213-214.
  • HAustria, Appl. No. 15225/89, Commission, EHRR Commission Supplement No. 1, CD 70. In spite of considerable efforts by the author of this study and the editors of this series, no record of this case can be found other than that contained in the European Human Rights Reports.
  • Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, A 43, paragraph 65.
  • Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, A 23, paragraph 53.
  • DelcourtBelgium, judgment of 17 January 1970, A 11.
  • De Wilde, Ooms and VersypBelgium, judgment of 18 June 1971, A 12, paragraph 65.
  • Winterwerpthe Netherlands, judgment of 24 October 1979, A 33, para­graph 39.
  • United Communist Party of Turkey v. Turkey, op. cit.; Socialist Party and others Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions, 1998-IN, 1258, paragraph 50.
  • Handyside, judgment, cit., paragraph 49.
  • Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, A 44, paragraph 63.
  • A notable exception has been the Schermers opinion in the Commission’s decision in Appl. Nos. 14234/88 and 14235/88 Open Door Counselling Ltd and Dublin Well Woman Centre, report of 7 March 1991, A 246, pp. 64-66.
  • See Greer, cit., pp. 14-17.
  • Ost, cit., p. 305.
  • Ost, cit., pp. 302-303; Matscher, op. cit., pp. 68-70; P Mahoney, “Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin” [1990] 11 Human Rights Law Journal 57, 62-66.
  • Petzold, “The Convention and the Principle of Subsidiarity” in R.St.J. Macdonald et al. (eds.), op. cit., pp. 41-62.
  • Bernhardt, “The Convention and Domestic Law” in R.St.J. Macdonald et al. (eds.), ibid.
  • Schokkenbroek, cit., p. 30; Mahoney (1990), op. cit., pp. 58-59; Van Dijk and Van Hoof, op. cit., p. 84.
  • -A. Eissen, “The Principle of Proportionality in the Case-Law of the European Court of Human Rights” in R.St.J. Macdonald et al. (eds.), op. cit., pp.125-146; J. McBride, “Proportionality and the European Convention on Human Rights” in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Oxford: Hart Publishing, 1999) 23-35.
  • See especially the partly dissenting opinion of Judge Martens in Ob­server/Guardian, judgment, cit., paragraph 11.2.
  • , paragraph 72.
  • Autronic AGSwitzerland, judgment of 22 May 1990, A 178, paragraph 61; Weber v. Switzerland, judgment of 2 May 1990, A 177, paragraph 47; Barthold, judgment, op. cit., paragraph 58.
  • See Klass, judgment, cit., paragraph 42; Sunday Times (1979), judgment, op. cit., paragraph 65.
  • See e.g. Observer and Guardian, judgment, cit., paragraph 71.
  • Lingens, judgment, cit., paragraph 43. Ezelin v. France, judgment of 26 April 1991, A 202, paragraph 51; Sunday Times (1991), judgment, op. cit., para­graph 50.
  • See, for example, Klass, judgment, cit., paragraph 59; Gaskin v. the United Kingdom, judgment of 7 July 1989, A 160, paragraph 40; Barfod v. Denmark, judgment of 22 February 1989, A 149, paragraph 29.
  • Dudgeon, judgment, cit.; Norris, judgment, op. cit.; Modinos, judgment, op. cit.
  • Handyside, judgment, cit.; Muller, judgment, op. cit.
  • See, e.g., Held, The Public Interest and Individual Interests (New York: Basic Books Inc., 1970).
  • McHarg, “Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights” (1999) Modern Law Review 671, 674.
  • cit.
  • O’Boyle, cit., p. 26.
  • See also United Communist Party of Turkey v. Turkey, where it was held that democracy “appears to be the only political model contemplated by the Conven­tion and, accordingly, the only one compatible with it” (judgment, cit., para­graph 45).
  • Barfod, judgment, cit., paragraphs 28-36; Prager and Oberschlick v. Austria, judgment of 26 April 1995, A 313, paragraphs 34-39.
  • See Chapter 2.II.
  • Lingens, op. cit., paragraph 42.
  • As the Court was prepared to do in Autronic, op. cit., paragraph 61; Weber, judgment, cit., paragraph 47; Barthold, judgment, op. cit., paragraph 58; Klass, judgment, op. cit., paragraph 42; Sunday Times (1979), judgment, op. cit., paragraph 65.
  • For a discussion of the pros and cons of prioritising certain human rights over others see T. Meron, “On a Hierarchy of International Human Rights” (1986) 80 Interna­tional Journal of Human Rights 1-23.
  • Article 3.
  • Article 4 (1).
  • Article 7 (1).
  • Article 7 (1).
  • Callewaert, cit., p. 8.
  • Judgment of 25 April 1978, A 26, paragraph 31.
  • De Wilde, Ooms and Versyp v. Belgium (the “Vagrancy case”), judgment, cit., paragraphs 89-90; Van Droogenboek v. Belgium, judgment of 24 June 1982, A 50, paragraphs 58-59; Van der Mussele v. Belgium, judgment of 23 November 1983, A 70, paragraphs 31-40.
  • Callaewert, cit., p. 9.
  • J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995) 219.
  • Sunday Times (1979), judgment, cit., paragraphs 56 and 63.
  • Ib, paragraph 59.
  • Ovey, “The Margin of Appreciation and Article 8 of the Convention” (1998) 19 Human Rights Law Journal 10-12, 10; Schokkenbroek, op. cit., p. 32; Harris et al., op. cit., pp. 19-22.
  • Schokkenbroek, cit., p. 32.
  • Harris et al., op. cit., 466.
  • Xthe Netherlands, Appl. No. 2894/66, 6 October 1966 (1966) Yearbook 564, 568; Winterwerp, judgment, op. cit., paragraph 49; Weeks v. the United Kingdom, judgment of 2 March 1987, A 114, paragraph 50.
  • Judgment of 29 November 1988, A 145-B, paragraph 62.
  • Ibid.
  • Arai, cit., p. 61. See, for example, Neumeister v. Austria, judgment of 27 June 1968, A 8, paragraphs 20-21; H v. France, judgment of 24 October 1989, A 162- A, paragraphs 50-59.
  • Harris et al., op. cit., 467.
  • An exception is Hoffman Austria, judgment, op. cit.
  • Practically all States Parties to the European Convention on Human Rights have incorporated it into their domestic law. But this has happened in the United Kingdom only recently. For a brief guide to this legislation see S. Greer, “A Guide to the Human Rights Act 1998” (1999) 24 European Law Review 1-21.

Human rights files

No. 1 Introduction to the European Convention on Human Rights: the rights secured and the protection machinery (1978)

No. 2 The presentation of an application before the European Commission of Human Rights (1978, out of print)

No. 3 Outline of the position of the individual applicant before the European Court of Human Rights (1978)

No. 4 The right to liberty and the rights of persons deprived of their liberty as guaranteed by Article 5 of the European Convention on Human Rights (1981)

No. 5 Les conditions de la detention et la Convention europeenne des Droits de l’Homme (1981) (available in French only)

No. 6 The impact of European Community law on the implementation of the European Convention on Human Rights (1984)

No. 7 The right to respect for private and family life, home and correspondence as guaran­teed by Article 8 of the European Convention on Human Rights (1984)

No. 8 The position of aliens in relation to the European Convention on Human Rights (1985, revised edition forthcoming)

No. 9 Problems raised by certain aspects of the present situation of refugees from the standpoint of the European Convention on Human Rights (1997, revised edition forthcoming)

No. 10 The Council of Europe and child welfare – The need for a European convention on children’s rights (1989)

No. 11 The European Convention on Human Rights and property rights (revised edition, 1998)

No. 12 Article 5 of the European Convention on Human Rights – The protection of liberty and security of person (1994)

No. 13 Article 6 of the European Convention on Human Rights – The right to a fair trial (1994)

No. 14 Equality between the sexes and the European Convention on Human Rights (1995)

No. 15 The exceptions to Articles 8 to 11 of the European Convention on Human Rights (1997)

No. 16 The length of civil and criminal proceedings in the case-law of the European Court of Human Rights (1996)

No. 17 The margin of appreciation: interpretation and discretion under the European Convention on Human Rights (2000)

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