Margin of Appreciation

Margin of Appreciation and the European Convention on Human Rights Court

Margin of Appreciation “means that, within reason, the Court will leave it to the individual State to decide whether the particular human right is infringed, applying its own standards. It
is particularly important for the (European Convention on Human Rights) Court to allow a generous margin of appreciation where respect for human rights involves an issue of ‘proportionalityÂ’. Some human rights, such as the right to life and the prohibition of torture are absolute. They must be observed come what may. Others are qualified. Article 8 is a good example. It provides that everyone has the right to respect for his private and family life, his
home and his correspondence. It goes on to qualify this right, however, to permit
interference with it, I quote:

Â‘such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.Â’

When deciding whether the interference with a right is justified under such a qualification, the Strasbourg Court has held that the principle of proportionality must be applied. Broadly speaking this means that the restriction of the right must be reasonable having regard to the effect that this will have in achieving the legitimate aim that is recognized by the qualification.

The public authorities of the individual State are likely to be in a better position to evaluate this balance than the (European Convention on Human Rights) Court at Strasbourg and, accordingly, should be allowed a generous margin of appreciation.
Both friends and enemies of Strasbourg have criticized the Court on occasion for failing to allow a sufficient margin of appreciation. Lord Hoffmann (Lord Hoffmann, The Universality of Human Rights, Judicial Studies Board Annual Lecture, 19 March 2009) put this criticism particularly robustly:

Â‘In practice the Court has not taken the doctrine of the margin of appreciation nearly far enough. It has been unable to resist the temptation to aggrandize its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe.Â’

Lord Hoffmann provided three examples of this conduct.

The first was the refusal by the (European Convention on Human Rights) Court to countenance sensible exceptions that existed under English law to the rule that evidence provided under compulsion could not be used in criminal proceedings.

The second was the refusal by the Strasbourg Court to countenance the admission, in exceptional circumstances, of hearsay evidence in a criminal trial. (Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110, Fourth Section of the Court).

The third was the condemnation by the (European Convention on Human Rights) Court of a carefully considered decision by the Secretary of State to extend the hours during which night flights could be permitted at Heathrow. Strasbourg held that this was an unjustifiable
interference with the rights of local residents to respect for their private and family life. (Hatton v UK, 2003, 37 EHRR 611).

It is right to observe that in relation to two of these examples the Grand Chamber reversed the decisions of which Lord Hoffmann complained.

(European Convention on Human Rights) judges have not remained silent in the face of attacks such as these. I have already mentioned the speech of Sir Nicolas Bratza. He paid tribute to the role that the United Kingdom, and its Courts, had played in interpreting and applying
the Convention. He pointed out that, in 2010, of some 1200 applications made to the (European Convention on Human Rights) Court against the United Kingdom, no less that 1,177 were declared inadmissible or struck out. Of the remaining 23, several ended in findings of no
violation. In these circumstances he suggested that the United Kingdom had little to
complain about.

Sir Nicolas was succeeded as President of the (European Convention on Human Rights) Court by Judge Dean Spielmann. In 2012 he had presented a paper on the margin of appreciation at the Center for European Legal Studies at Cambridge. (Judge Dean Spielmann, Allowing the Right Margin; The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?, Centre for European Legal Studies, University of Cambridge, 29 February 2012).

This emphasized the principle of subsidiarity, under which the primary responsibility for the enforcement of the (European Convention on Human Rights) rights lies with the individual Member States of the Council of Europe, with the Strasbourg Court only intervening as a ‘long-stopÂ’. The margin of appreciation gives effect to this principle.

As to the margin of appreciation he said this:

Â‘Pursuant to a recent trend in the jurisprudence of the European Court of Human Rights judicial self-restraint should prevail in the event that superior national courts have analysed in a comprehensive manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom.Â’

Judge Spielmann returned to this topic in a speech to the Max Planck Institute at Heidelberg at the end of (2013). (Judge Dean Spielmann, Allowing the Right Margin; The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?, Max Planck Institute for Comparative Public Law and International Law,
Heidelberg, 13 December 2013).

In the course of this, he said:

Â‘There is a more general point to emphasise here, that one might call the procedural aspect of the margin of appreciation. It is implicit in the very term used, Â“appreciationÂ”. The competent domestic authority, which may be a court, or parliament, or the administration, must engage in a process of appreciation, or assessment, of the rights and interests at stake.Â’

It would seem to follow from this that (the European Convention on Human Rights Court) will not hesitate to intervene if it considers that the domestic authority has interfered with a Convention right without giving adequate consideration to whether or not it was proportionate to do so.

The perception that the (European Convention on Human Rights) Court was not going far enough in applying the margin of appreciation was one that was shared by other Member States. This was reflected in the Brighton Declaration, affirmed by all 47 Member States at a meeting in Brighton under the Presidency of the United Kingdom on 20 April 2012. The
opening paragraphs are significant. They reaffirmed the commitment of all the Member States to the Convention and, in particular, to the right of individual application to the Strasbourg Court. They added that this (European Convention on Human Rights) Court had ‘made an
extraordinary contribution to the protection of human rights in Europe over the last
50 yearsÂ’. However, the Declaration went on to state:

Â‘The jurisprudence of the Court makes clear that the States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged. This reflects that the Convention system is subsidiary to the safeguarding of human rights at national level and that national authorities are in principle better placed than an international court to evaluate local
needs and conditionsÂ…. The role of the Court is to review whether decisions taken by the national authorities are compatible with the Convention, having due regard to the StateÂ’s margin of appreciation.Â’

In accordance with the wishes of the Member States, the (European Convention on Human Rights) was amended last June by the 15th Protocol (13 24 June 2013) to add the following recital:

Â‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human RightsÂ…Â’

Let me pause to say where I stand in the debate. We did not take the lead in promoting and signing the … Convention … because we considered that this was desirable to restrain our own shortcomings. We did so because we believed that the Convention was needed to prevent abuses of human rights by others. And we signed up to a Court to police the undertakings of the Member States, including our own. It has performed a most valuable function in doing this. Without it the (European Convention on Human Rights) would have been toothless. To our surprise, the Court has, on occasion, found us wanting. But that has on many occasions been
salutary.

Nonetheless, there have been some occasions, and they have probably been a growing number of occasions, where the Court has intervened to prefer its own views to that of courts of Member States that have not erred in the principles that they have applied, but only, in the view of the (European Convention on Human Rights) Court, in the result of their application. In some of these cases the Court has afforded the Member State concerned an insufficient margin of appreciation.

In a recent speech Judge Robert Spano of the Court acknowledged this by saying that criticisms of the (European Convention on Human Rights) CourtÂ’s activism were ‘not, in any sense, to be considered as wholly without foundationÂ’ (Judge Robert Spano, Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity, Lecture at Jesus College, Oxford, 30 April 2014). I hope and believe that the (European Convention on Human Rights) Court will pay regard to the emphasis on subsidiarity and the margin of appreciation that has been inserted in
the Preamble to the Convention.” (1)