UNIVERSITY COLLEGE DUBLIN

UCD Working Papers in Law, Criminology &
Socio-Legal Studies
Research Paper No. 52/2011

Paul Gallagher
University College Dublin

Electronic copy available at: http://ssrn.com/abstract=1982661

The European Convention on Human Rights and the Margin of Appreciation

Paul Gallagher SC 1

Abstract

The debate as to whether courts are too eager, or not eager enough, in holding that
government regulations violate individuals’ fundamental rights has raged across decades
and across jurisdictions. The underlying considerations are particularly acute when the
courts concerned are supranational courts – and thus further removed than national judges
from the societies affected by their judgments. The European Court of Human Rights has
grappled with this issue by developing the concept of a margin of appreciation and
thereby according to Contracting States an element of judgment in securing the rights
enshrined in the Convention. The margin of appreciation has been central to the
jurisprudence of the Court and is of major importance to the Contracting States. It has
assumed even more significance as the Court through its case law has expanded
Convention rights. This paper focuses on the use by the Court of the concept of a margin
of appreciation and considers, in particular, whether the use of that concept provides a
sufficient safeguard against what some people see as an overactive court which has
interpreted the Convention in a manner that the original Contracting States could never
have envisaged.

Introduction and Overview

1. The debate as to whether courts are too eager, or not eager enough, in holding
that government regulations violate individuals’ fundamental rights has raged
across decades and across jurisdictions. The underlying considerations are
particularly acute when the courts concerned are supranational courts – and thus
further removed than national judges from the societies affected by their
judgments.

2. The European Court of Human Rights (“the Court”) has grappled with this issue
by developing the concept of a margin of appreciation and thereby according to
Contracting States an element of judgment in securing the rights enshrined in the
Convention. The margin of appreciation has been central to the jurisprudence of
the Court and is of major importance to the Contracting States. It has assumed
even more significance as the Court through its case law has expanded
Convention rights.

3. In this lecture, I wish to focus on the use by the Court of the concept of a margin
of appreciation and to consider in particular whether the use of that concept
provides a sufficient safeguard against what some people see as an overactive

1
Paul Gallagher is a Senior Counsel and Adjunct Professor in the UCD School of Law. This paper was
originally presented as a lecture at University College Dublin in September 2011.

1

Electronic copy available at: http://ssrn.com/abstract=1982661

5. Professor Quinn documents how the Nazis were able to use emergency provisions of the Weimar Constitution – such as Article 48 which permitted suspension of fundamental rights – to their own advantage. in part. it is instructive to reflect on why the Convention came into being in the first place. it did not deal with a right to property. in the immediate aftermath of the 1933 Reichstag fire. Drafted in 1950 by the then newly formed Council of Europe. Article 15 specifies that these may only occur "In time of war or other public emergency threatening the life of the nation" and only "to the extent strictly required by the exigencies of the situation. “Dangerous Constitutional Moments: The ‘tactic of legality’ in Nazi Germany and the Irish Free State compared” in Morison et al (eds) Judges. for example. Most obviously. the Convention entered into force on 3 September 1953. court which has interpreted the Convention in a manner that the original Contracting States could never have envisaged. the soil in which the Nazi regime sprouted and grew was composed of one of the most democratic Constitutions in Europe – that of the Weimar Republic. explains the references to values and principles that are "necessary in a democratic society" throughout the Convention. as they did. 7.) The Convention as a ‘Minimalist’ Instrument 8. in a chapter in the 2007 book Judges. in their book on the Convention.com/abstract=1982661 . Ovey and White. Disturbingly. Professor Gerard Quinn. certain rights are deemed non-derogable in any circumstances." Furthermore. to 2 Quinn. Transition and Human Rights 2 sets out methodically how the Nazis employed tactics of legality. 2. provided that such measures are not inconsistent with its other obligations under international law. using that Constitution to suspend rights and ultimately to destroy itself. 2 Electronic copy available at: http://ssrn. In order to understand the need for a margin of appreciation and to give an insight into how wide the margin of appreciation should or should not be. The wording of the Convention might be considered minimalist in terms of the rights it protects. note that the ECHR was also a response to the growth of Communism in Eastern Europe and that this. such as the prohibitions on torture. As originally drafted. While the ECHR permits derogations from the rights it protects. Background to the Convention 4. 6. despite the fact that such principles are not in any way defined. the Convention was a reaction to the appalling violations of human rights which had been committed on the continent of Europe in the 20th century. slavery and retrospective criminalization. Transition and Human Rights (2007).

Simpson. Human Rights and the End of Empire. 12. Quoted by Quinn. 3 10. although all of these rights were protected in subsequent Protocols. is not itself a sign of lack of commitment to human rights and suggests in that context that the sometimes criticized concept of Margin of Appreciation may have a philosophical as well as a pragmatic justification. Why is this? Ungoed-Thomas. to the effect that the drafters of the Convention agreed that they could not set down a comprehensive Charter of Rights and so they agreed to be “content with the minimum of defining the seven or eight or ten fundamental freedoms necessary for the democratic way of life”. 11. was held to be compatible with the Convention. Similarly. which sought to advance Sharia law. education. the Turkish State’s banning of a political party. or the imposition of the death penalty. and stressed the importance of the principle of secularism in the Turkish Constitution to the democratic system in Turkey. the former Solicitor General for England and Wales. who was involved in the drafting process. 4 13. Collected Version of the Travaux Preparatoires at 166. For example. 9. The Court emphasised that the ban was necessary to prevent democracy itself being undermined. in Refah Partisi v. the 1948 Universal Declaration of Human Rights or the 1966 International Covenant for the Protection of Civil and Political Rights. the Court itself has confirmed on several occasions that protecting democracy is at the forefront of the Convention's raison d'etre. 3 Vol II. Turkey (2003). 5 SLS Conference 2010 3 . 4 See “Irish & European Law – The Limits of Sovereignty” – 2011 Brian Walsh lecture – Mr. Even today. Indeed. quotes Pierre-Henru Teitgen. This question arises not least because accession to the Convention has implications for the Sovereignty of Contracting States. stated: “What we are concerned with is not every case of injustice which happens in a particular country but with the question whether a country is ceasing to be democratic”. Justice Ronan Keane. the text of the Convention does not contain as wide a panoply of rights as. with its Protocols. in his 2008 book. The concept of effective political democracy which is specifically referred to in the Preamble to the Convention raises the fundamental question as to the appropriateness of the Court adopting an expansive interpretation of the Convention and identifying new rights which are not securely based on the wording of the Convention. during the debates in the Consultative Assembly of the Council of Europe on the Convention. Mr Justice O’Donnell in his lecture to the SLS Conference in Northern Ireland 5 speaks of the importance of Courts generally seeking to proceed carefully in the determination of human rights. say. He says that appropriate caution and unwillingness to make sweeping statements.

In Goodwin v UK the Court said it was of crucial importance that the Convention be interpreted and applied in a manner which renders its rights practical and effective. the Court has on many occasions recognised that Convention rights are subject to “an evolutive interpretation”. risk rendering it a bar to reform or improvement. employing the doctrine of ‘positive obligations’. and perhaps most significantly in terms of an expansive approach to Convention rights. and Goodwin v UK 8 the Court. but rather with other matters such as enforcement. 10 NILQ 61(203-8) Positive Obligations and the European Court of Human Rights 4 . 28957/25 11th July 2002 9 See Deshaney v. and further that the effective protection of human rights requires such an approach. 14. First. This concept of an evolutive approach will be familiar to law students. A failure to maintain a dynamic and evolutive approach would. not theoretical and illusory. 9 Professor Brice Dickson 10 suggests that there is a false dichotomy between “negative obligations” and “positive obligations” in this context and says that the Convention is part of a building project. in its application of those rights. The US Supreme Court has repeatedly declined to take the same approach as regards the US Constitution. but the Court. The text of the Convention. A few examples demonstrate this. because Contracting States have responsibility for securing those rights to all within their territory. Secondly. 7 Application NO. even if the precise term is not. not merely a fire-fighting operation and presupposes the construction of a better rights framework and not just the prevention of the destruction of whatever framework already exists.) Beyond minimalism 15. 3. and its Protocols. 17. according to the Court. Nevertheless it is true to say that the Court has used the concept of positive obligations on Contracting States as a basis for expanding rights and finding violations of the Convention in circumstances where the existence of a negative obligation would not have resulted in any violation. rather than those which existed at the time of the adoption of 6 Most of the Articles in the Convention itself do not deal with rights at all. dealing with rights 6 may be short and to the point. jurisdiction etc. procedure. 16. 28th October 1998 8 Application No. are often phrased as abstract concepts) should be interpreted in the light of contemporary social conditions or mores. in a Constitution or Bill of Rights. has often taken an expansive approach. A similar issue was raised by Professor James Griffin in “On Human Rights” which challenges the 20th Century inflation of human rights both in the number of rights and their content. In essence it means that rights (which. Winnebago County (1989). has held that the actions of private parties can engage rights under the Convention. especially those who have studied constitutional law. in cases such as Osman v UK 7 . 23452/11.

In the 1950s. Joint Dissenting Opinion at [1]. striking a fair balance between the right of the individuals affected and the interests of the community as a whole. first acknowledged that: “It is true that the original text of the Convention does not yet disclose an awareness of the need for the protection of environmental human rights. to be interpreted in the light of present-day conditions’ … This ‘evolutive’ interpretation by the Commission and the Court of various Convention requirements has generally been ‘progressive’. and so on. can (indeed can only be) interpreted according to the lights of today as judges perceive and share them. 'equality'. like jury trial. the universal need for environmental protection was not yet apparent. The majority of the Court decided that there was no interference with Article 8 rights to be justified. 19.” This he said was not to suggest that the “shape of such systems is in every respect fixed in the permafrost of 1937. In that case. a woman argued that the British government’s policy on night flights at Heathrow airport interfered with her right to privacy under Article 8 of the Convention. Judge Costa (who has since become President of the Strasbourg Court) and 4 other judges. Professor John Kelly’s famous phrase.”12 They then continued: “…[A]s the Court has often underlined: ‘The Convention is a living instrument. and therefore to protection against pollution and nuisances caused by harmful 11 Writing in The Constitution of Ireland 1937-1987 (Institute of Public Administration. the instrument in question.” He felt that on the other hand the historical approach was appropriate “where some law-based system is in issue. 'common good'.is the dissenting judgment of Judge Costa in Hatton v UK (2003). and. because she suffered persistent sleeping problems as a result of noise levels. county councils. the census. in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the Convention to develop the ‘European public order’. 1988) Kelly favoured an evolutive approach when it came to the interpretation of rights in the Constitution: “… elements like 'personal rights'. Dissenting. which are so material to traditional constitutional values that a willingness to see them diluted or substantially abolished without a referendum could not be imputed to the enacting electorate. 'social justice'. 5 . 11 18. A good explanation of the potential of the evolutive approach for expanding Convention rights by the Court – albeit one that has been seized upon by its critics . The courts ought to have some leeway for considering which dimensions of the system are secondary. the Commission and the Court have increasingly taken the view that Article 8 embraces the right to a healthy environment. and that the authorities had acted within their margin of appreciation. which was practically unknown in 1950. that the Irish Constitution should not entirely be “frozen in the permafrost of 1937” provides a pithy explanation. In the field of environmental human rights.” 12 Hatton v UK (2003).

6 . For those reasons the Court held that it would no longer consider Article 12 of the Convention to be limited to marriage between two persons of the opposite sex.3. One US scholar.2.3. 22. In its judgment in Schalk and Kopf v Austria 13 the Court had to consider the institution of marriage and noted that it had undergone major social changes since the Convention was adopted in the 1950’s. Article 12 of the Convention did not in fact impose an obligation on the Government to grant a same sex couple like the applicants access to marriage.3 would be unaffected by the Lisbon Treaty came into effect on the same date as the Lisbon Treaty and provided as follows: “nothing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union or the provisions of that Treaty in the area of freedom.2. This invocation of the Charter as a means of expanding the rights protected by the Constitution potentially creates a particular problem for Ireland having regard to the guarantees obtained by Ireland in the context of the Lisbon Treaty. noise and so on. Thirdly. boasted that “nothing is unsayable in the language 13 June 2010 14 The legally-binding decision of the Heads of State or Governments of the 27 Member States of the EU reflecting the Irish People’s concerns that Article 40. the approach of interpreting the Convention by reference to other international instruments and in particular the EU Charter of Fundamental Rights provides the potential for a significant expansion of human rights. The Court noted that Article 9 of EU Charter of Fundamental Rights did not confine the right to marry to persons of opposite gender. the meaning of scope of those rights shall be the same as those laid down by the Convention. 40. provided by the Constitution of Ireland”.2. security and justice affects in any way the scope and applicability of the protection of the right to life in Article 40. 14 It also suggests henceforth a symbiotic relationship between the Charter and the Convention having regard in particular to Article 52.” 20.3.3 of the Charter which provides: “Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for Protection of Human Rights and Fundamental Freedoms.. Sanford Levinson.” The Charter therefore expressly envisages its interpretation by reference to the Convention and now it would seem.4 and 44.5. the Convention’s interpretation will in turn be influenced by the Charter. chemicals. It nevertheless held that. Although it found no breach of the Convention in the particular case. agents which precipitate respiratory ailments. the Court has on occasion looked to other international instruments to expand the meaning of the Convention.3.1. the protection of the family in Article 41 and the protection of the rights in respect of education in Articles 42 and Articles 44. offensive smells. in the particular circumstances. This provision shall not prevent Union law providing more extensive protection. 21. It is not entirely clear what the limits of an evolutive interpretation might be. and 40.

on the grounds that it offended against morals. The case concerned a challenge to the banning of a book. Handyside v.uk/pdfs/Animals. 17 Gearty. 15 An expansive approach is also welcomed and advocated by Professor Conor Gearty 16 . 737 7 .R. The central question however is whether this concept of “Margin of Appreciation” provides sufficient protection against an overexpansive interpretation of Convention rights. 19 Hatton v UK Par 97 20 E.co. This approach of the Court to the interpretation of Convention rights has been tempered to some extent by the Court’s recognition that the Contracting States enjoy a margin of appreciation. 19 25. In his 2009 book The Assault on Liberty: What Went Wrong with Rights Dominic Raab is much more critical. UK (1976) 20 was the first case in which the Court (as opposed to the Commission) discussed the concept.) The “Margin of Appreciation” Concept 24. The Assault on Liberty: What Went Wrong with Rights at 117. there is no obvious reason for limiting the number and range of interests. Once expanded beyond the traditional core of fundamental liberties. 17 23. and commenting more generally regarding rights: “The most striking development has been the sheer number and range of legal claims that are now formulated as human rights. it is 15 Levinson. in the first place.conorgearty. accusing the Court of precipitating the phenomenon of ‘rights contagion’. the task of securing the rights and liberties it enshrines. 16 of the London School of Economics. “Can Animals Have ‘Human Rights’ Too?” (2008) www. ”. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted. … In particular.pdf. 18 Raab. who says: “the strength of human rights language has always lain in its power to expand its net of solicitude ever outwards”. aimed at schoolchildren. Constitutional Faith (Princeton.H.” 18 4. stretching the meaning of some of the basic Convention rights beyond reasonable limits. The Court stated at para 48: "The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights … The Convention leaves to each Contracting State. 1989) at 191. The concept derives from the fundamentally subsidiary role of the Convention and the fact that the national authorities have direct democratic legitimacy. and a graduate of this Law School. claims and entitlements that can be dressed up as human rights.R.

the applicant would be denied the opportunity of becoming a genetic parent. especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. to assess the need for such a measure in the light of the situation obtaining locally at a given time. 28. inter alia. by authorities in the Tyrol region of Austria. the Court stated at para 56: “… The Court cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyroleans.R.H. who are better placed than the international judge. in Evans v.’s refusal or withdrawal of consent was upheld. State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them. It said a margin of appreciation was left to Austria because there was no discernible consensus throughout Europe of the significance of religion in Society and therefore it was impossible to define comprehensively what interferences with anti-religious speech are permissible. Council in Heaven. In recent cases. as will the presence or absence of a European consensus. Another example is provided by Otto-Preminger-Institut v. on the grounds that it offended laws which prohibited disparaging religious precepts. It is in the first place for the national authorities. 21 19 E. existence or identity will affect the breath of the margin of appreciation. UK (2008) the applicant complained that the provisions of English law requiring embryos to be destroyed once her partner withdrew his consent to their continued storage infringed. Discussing the margin of appreciation. Austria (1995). would be forced to become a father whereas if J. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place.R. 21 It concerned a challenge to the confiscation of a film. J. …" 26. In seizing the film. 8 . Article 8. the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner. Each person’s interest was entirely irreconcilable with the others since if the applicant was permitted to use the embryos. the Court has repeatedly stated that the question of the degree of interference with an individual’s rights. For example. By reason of their direct and continuous contact with the vital forces of their countries. The Court rejected the challenge on the grounds that the interference with freedom of expression was justified. not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The dilemma central to that case involved a conflict between the Article 8 rights of two private individuals namely the applicant and J.” 27.

23 Ibid. to respect for her private life and in particular whether the lack of legal recognition given to her gender reassignment invoked the concept of the margin of appreciation. 29. in addition to this primarily negative undertaking there may be positive obligations inherent in an effective respect for private life. The applicable principles were nonetheless similar in particular in both instances it said regard must be had to the fair balance which had to be struck between the competing interests. since the use of IVF treatment gives rise to sensitive moral and ethical issues against a background of fast-moving medical and scientific developments. a post-operative male to female transsexual. is by no means absolute. there is no consensus within the Member States of the Council of Europe. 9 . and since the questions raised by the case touch on areas where there is no clear common ground amongst the Member States. It noted that these obligations may involve the adoption of measures to secure respect for private life even in the sphere of the relations of individuals between themselves. The margin of appreciation. either as to the relative importance of the interest at stake or as to the best means of protecting it. and in both contexts the State enjoys certain margin of appreciation. the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one …” 23 31. The Grand Chamber of the Court held: “A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State in any case under Article 8. 30. UK (2008) at [77]. the margin allowed to the State will be restricted … Where. The Court declared: 22 Evans v. however. Where a particularly important facet of an individual's existence or identity is at stake. therefore. The boundaries between the State’s positive obligations under Article 8 did not however lend themselves to precise definition. particularly where the case raises sensitive moral or ethical issues. In Goodwin v UK the Court had to decide whether there was a positive obligation to ensure the right of the applicant. the margin will be wider … There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights …” 22 The Grand Chamber concluded: “In conclusion. at [81]. The Court stated that although the object of Article 8 was essentially that of protecting the individual against arbitrary interference by the public authorities it did not merely compel the State to abstain from such interference. however.

1987) 187 at 208. This explains why the doctrine is described as ‘the other side of the principle of proportionality’ by some and as ‘enabling the Court to balance the sovereignty of Contracting Parties with their obligations under the Convention’ by others. The Court uses the same term (margin of appreciation) both for saying that the applicant did not.[M]uch of the confusion and controversy surrounding the margin of appreciation is due to the Court’s failure to distinguish between those two ideas in its case law. as a matter of human rights. “The Margin of Appreciation” in MacDonald. “…[T]hough there is widespread acceptance of the marriage of transsexuals. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. 26 Ibid. and for saying that it will not substantially review the decision of the national authorities as to whether there has been a violation. have the right claimed.. that the limits of the margin of appreciation are incapable of an exact definition. A former judge of the Court. whether the judgments refer to it explicitly or not”.. Matscher and Petzold (eds. judge. in International Law at the time of its codification: Essays in honour of Roberto Ago. as did another.” 26 34. was the only non-European judge to sit on the Court) in 1987 stated that “the margin of appreciation is the heart of virtually all major cases that come before the Court. Thoughts on the Interpretation of Human-Rights Treaties. “Two Concepts of the Margin of Appreciation” 26 Oxford Journal of Legal Studies 4 (2006) 705 at 706. The very vagueness of the concept of margin of appreciation undermines its effectiveness as a protection against an overexpansive interpretation of the 24 Christine Goodwin v UK. Ronald St. (Milan. Protecting Human Rights: The European Dimension (1988) eds. 28 35. fewer countries permit the marriage of transsexuals in their assigned gender than recognise the change of gender itself. . It is apparent from the cases that the Court uses the concept of margin of appreciation in a substantive way. The margin of appreciation cannot extend so far. 27 MacDonald. The Court is not persuaded however that this supports an argument for leaving the matter entirely to the Contracting States as being within their margin of appreciation. 33. 10 . 28 MacDonald. In his 2006 Article Letsas 25 “Two concepts of the Margin of Appreciation” …. and separately in a structural way – as regards the limits of intensity of review in light of how it views it status as an international tribunal. I v UK (2002) at [103]. now former. 27 Judge MacDonald also opined separately. John MacDonald (a Canadian who. Judge Bernhardt. ” 24 32. incidentally. “The margin of appreciation in the jurisprudence of the ECHR”. Bernhardt. to address the relationship between individual freedoms and collective goals. 25 Letsas. Matscher and Petzold at 65-86.) at 83-85.

Further it does not always correctly identify the matters to be taken into account in examining whether such consensus exists or the level of any such consensus. these criteria are by their nature broad and very flexible in their application. 36. It repeated that where a particularly important facet of an individual’s existence or identity arises. Moreover in Goodwin the Court in limiting the margin of appreciation took into account the fact that the United Kingdom had set up a Departmental Working Group which had produced a report which had not yet been implemented. The very fact therefore that a country had identified significant issues and had prepared a report offering various options for addressing those issues was not. 38. Indeed in Goodwin the Court while acknowledging the lack of a common European approach said that the lack of such common approach among 43 Contracting States. It is the Court which will decide the importance of the right at stake and whether or not a consensus exists and with regard to the latter the Court does not make clear how the consensus is to be measured or what constitutes evidence of consensus. In AB&C v Ireland 29 the Court identified a number of these factors in the context of an alleged Article 8 violation. with widely diverse legal systems and traditions was hardly surprising. Convention. 39. 37. the margin allowed to the State will normally be restricted. as one might expect. One might also have thought that a Contracting State’s margin of appreciation would be broad where the Court itself had in previous cases examined complaints 29 Application No. Where however there is no consensus within the Contracting States of the Council of Europe. It therefore attached less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed than to (what it described as) clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the sexual identity of post operative transsexuals. Such a formulation of the margin of appreciation means that its application in any given case is difficult to predict. either as to the relative importance of the interest at stake or as to the best means of protecting it. an advantage to the country but instead served to undermine its defence to an alleged violation. particularly where the case raises moral or ethical issues. the margin will be wider. In terms of legal reasoning this is difficult to follow and suggests that there are significant limitations with regard to the protection offered by the margin of appreciation concept. 25579/05 16th September 2010 11 . While the Court has outlined the criteria it takes into account in deciding whether the margin of appreciation applies in any particular case. This movement from the requirement for a consensus to the acceptance of a growing trend was very significant yet the Court provided no explanation as to the basis for this change in its position or why it might be justified.

XY&Z v UK 22nd April 1997. It is apparent therefore that the nature of the right alleged to be in issue.” 30 Reese v United Kingdom 17th October 1996. and implicitly decided that this earlier approach was not relevant in considering the State’s margin of appreciation. one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States. It has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. 5. The absence of properly reasoned analysis makes the application of the margin of appreciation more uncertain and arbitrary. The effectiveness of the concept of the margin of appreciation is also undermined in some cases because the Court does not properly reason its judgments and justify its conclusions. Sheffield Horsham v UK 30th July 1998 (text) 31 Op cit. 40. In an address entitled “The Universality of Human Rights”. This in turn undermines legal certainty the importance of which the Court itself acknowledged in Chapman v The UK 33 . citing the evolutive approach to Convention interpretation as a justification for so doing. laying down a federal law of Europe. the nature and extent of the alleged violation and the Court’s assessment of the extent of the margin of appreciation enjoyed by the State are invariably interrelated questions. 42.” 41. This increases the uncertainty with regard to the application of the margin of appreciation in any given case and undermines its effectiveness as a limitation of the expansion of rights by the Court. The very uncertainty which surrounds the concept of the margin of appreciation was acknowledged by the Court in Schalk & Kopf v Austria 31 where the Court said: 32 “The scope of the Margin of Appreciation will vary according to the circumstances. for good reason. the Court has not taken the doctrine of the margin of appreciation nearly far enough. It considers itself the equivalent of the Supreme Court of the United States. Instead the Court reiterated its entitlement to depart. in this respect. at the UK Judicial Studies Board Annual Lecture in 2009 the distinguished British judge Lord Hoffmann (who retired in the same year) argued that: “In practice. about alleged violations of transsexual rights in the United Kingdom 30 and found no breach of Article 8.) Lord Hoffmann’s 2009 Lecture – Criticism of the Court’s Approach 43. the subject matter and its background. from earlier precedents. Cossey v UK 27th September 1990. 32 At par 98 33 18th January 2001 12 .

and said that he would applaud the use of the Convention at the political level as a benchmark for compliance with human rights by the members of the EU. the human rights which these abstractions have generated are national. B and C v Ireland – which I will discuss separately. he stated frankly: “The problem is the Court. Rather. Their application requires trade-offs and compromises. 13 . it was not so limited where a consensus or a strong consensus existed. They expressly stated that the Court did indeed have a “harmonising” 34 role with regard to human rights protection. can be made only in relation to a particular system of trial and with an appreciation of such matters as the prevalent police culture. whether they have the right to 34 At [5] of the Partly Dissenting Opinion in A. 44. commenting in his 2009 lecture: “The court treats the margin [of appreciation] as a matter of concession to Member States on the ground that they are likely to know more about local conditions than the judges in Strasbourg. that is. since that lecture. they assume that in principle they are competent to decide any question about the law of a Member State which is arguably touched by human rights but sometimes abstain from exercising this vast jurisdiction on the ground that it is something which the local judges are better equipped to do. Indeed. B and C v Ireland (2010) 35 Ibid at p.” 36 However. Lord Hoffmann stated that he had no problem with the text of the Convention. Lord Hoffmann’s characterisation was to some extent validated by the 6 dissenting judges in the 2010 case of A. In his lecture. exercises of judgment which can only be made in the context of a given society and its legal system … [T]he decision as to whether the concept of a fair trail requires a complete ban on the admissibility … of evidence obtained by an unlawful search or seizure. 36 At page 27. however. which enables the Court to intervene in the details and nuances of the domestic laws of Member States. What I think they should recognise is that we are concerned with a matter of constitutional competence. human rights may be universal … At the level of application.15. and the right of individual petition. the messy detail of concrete problems. In other words. 35 45. and although that harmonising role was limited where European States differed considerably on an aspect of human rights protection. Lord Hoffmann expounded the virtues of a very broad conception of the margin of appreciation: “At the level of abstraction. Lord Hoffmann has other criticisms of the margin of appreciation. nor with the Council of Europe drawing attention to violations of human rights and discussing them.

the applicants. But. in conjunction with Article 14 on non-discrimination.) Recent Culture Wars – Judgments involving the Margin of Appreciation Schalk and Kopf v Austria (June 2010) 47. However it is also fair to say that the Court does not restrict the application of concept of margin of appreciation to circumstance where it considers that the national authorities are ‘better placed’ than itself to make the judgment in question. intervene in matters on which Member States of the Council of Europe have not surrendered their sovereign powers. argued that the ECHR conferred upon them a right to marry. 48. where States must also enjoy a margin of appreciation in the timing of introduction of legislative changes”.” 37 46. It also noted Article 9 of the EU Charter of Fundamental Rights. 6. For these reasons. Nor did the fact that Austria had not introduced the facility of Registered Partnership for same-sex couples earlier than 2010 give rise to a violation of the Convention. the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State. 39 37 At pages 25-26. it then added: “However. 14 . who are best placed to assess and respond to the needs of society. Echoing its Goodwin and I judgment. concerning the right to family life. did not confine the right to marry to persons of opposite genders. the Court noted that the institution of marriage had undergone major social changes since the Convention was adopted in the 1950s. 38 Schalk and Kopf v Austria at [61]-[62]. as matters stand. This is certainly a fair point. at [105].” 38 49. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities. either through Article 12 – which provides that men and women of marriageable age shall have the right to marry and found a family – or through Article 8. the Court held that it would not longer consider Article 12 to be limited to marriage between two persons of the opposite sex. a same-sex couple. In this case. The Court stated that although there was “an emerging European consensus towards legal recognition of same sex couples” there was “not yet a majority of States providing legal recognition” and “[t]he area in question must therefore still be regarded as one of evolving rights with no established consensus. 39 Ibid. … [M]arriage has deep-rooted social and cultural connotations which may differ largely from one society to another.

(ii.116 41 Par 93 15 . 53. a rapid evolution of social attitudes towards same sex couples had taken place in many Member States and that certain provisions of EU law reflected a growing tendency to conclude that same sex couples and the notion of family. but became aware that this was not the case prior to traveling to England. 51. The Court did however depart from its earlier decision in Mata Estevez –v - Spain 40 where it had held that despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto relationships between homosexuals. According to the Court’s summary of the facts: (i.) the third applicant believed that there was a risk that her pregnancy would cause a relapse of cancer and was concerned for her health and life. given the existence of little common grounds between the Contracting States. The Court reiterated that in proceedings originating in an individual application it has to confine itself as far as possible to an examination of the concrete case before it and accordingly given that it was open to the Applicants to enter into a registered partnership. (iii. that was an area which they still enjoyed a wide margin of appreciation. In this case. though carrying a different name - corresponds to marriage in each and every respect. It concluded however that the notion of private life within the meaning of Article 8 of the Convention was a broad concept which encompassed the right to personal 40 ECHR [2001] . It rejected the argument that if a Contracting State chooses to provide same sex couples with an alternative means of recognition. The Court considered on the contrary that Contracting States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition. and had four children all of whom had been placed in foster care. the Court was not called upon to examine whether the lack of any means of legal recognition for same sex couples constituted a violation of Article 14 taken in conjunction with Article 8. The Court concluded that Contracting States were still free under Article 12 of the Convention as well as Article 14 taking in conjunction with Article 8 to restrict access to marriage to different sex couples. 41 A. 50. it is obliged to confer a status upon them which.) the second applicant was not prepared to become a single parent and had initially feared an ectopic pregnancy. the three applicants challenged Ireland’s prohibition on the availability of abortion within the State. unemployed and living in poverty. The Court held that there was no violation of Article 2 of the Convention. B and C v Ireland (Dec 2010) 52.) the first applicant was unmarried. The Court noted that since 2001 when the decision in Mata Estevez was given.

did not consider that this consensus should narrow Ireland’s margin of appreciation. Because the “acute sensitivity of the moral and ethical issues raised by the question of abortion. With regard to the third applicant. It said that while Article 8 could not be interpreted as conferring a right to abortion the prohibition in Ireland of abortion where sought for reasons of health and well-being came within the scope of their right to respect for their private lives and accordingly Article 8. It concluded however having regard to the margins of appreciation enjoyed by Ireland that the interference was necessary because it struck a fair balance between the rights of the first and second applicants in respect for their private lives and the rights invoked on behalf of the unborn. Although there was a consensus in the Council of Europe in favour of permitting abortion. as distinct from the health of the mother which can only be avoided by a termination of her pregnancy. 55. 43 Par 231 44 Par 233 16 . 44 the court decided that a broad margin of appreciation was to be accorded to Ireland unless this margin was narrowed by a consensus among other States regarding abortion. 54. significantly. 42 The X Case determined that the life of an unborn could only be terminated where it is established as a matter of probability that there is a real and substantial risk to the life. It held that while a broad margin of appreciation must be accorded to the State as to the decision about the circumstances in which an abortion would be permitted in the State once that decision is taken the legal framework devised for that purpose should be “shaped in a coherent manner which allows the legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention. the Grand Chamber. the Court considered that her complaint fell to be analysed under the positive aspect of Article 8. In particular it considered the question of whether there was a positive obligation on the State to provide an effective and accessible procedure allowing the third applicant to establish her entitlement to a lawful abortion in Ireland and thereby afford due respect to her interests safeguarded by Article 8.43 It therefore analysed this issue in some depth. 56. 42 The Court therefore found that the prohibition of the termination of the first and second applicants’ pregnancies sought for reasons of health and/or well-being amounted to an interference with their rights under Article 8. autonomy and personal development. The majority of the Grand Chamber recognised that the extent of Ireland’s margin of appreciation was critical to the case and said that the breadth of the margin of appreciation to be accorded to the State was crucial to the conclusion as to whether the impugned prohibition on abortion struck a fair balance.” It concluded that neither medical consultation nor litigation options relied upon by the Government constituted an effective and accessible procedure which allowed the third applicant to establish her right to a lawful abortion in Ireland and consequently that Ireland was in breach of Article 8. with only three Contracting States having laws more restrictive than Ireland.

and that the Court had to supervise “whether the interference constitutes a proportionate balancing of the competing interests involved” 47 the majority of the Grand Chamber held that Ireland’s prohibition on accessing abortion within the Contracting State on health or well-being grounds did not exceed that margin of appreciation and struck a fair balance between the right of the first and second applicants to respect for their private lives and the rights invoked on behalf of the unborn. Judge Finlay-Geoghegan pointed out that while the Court identified a consensus among a substantial majority of Contracting States. B and C judgment was: “… the first time that the Court has disregarded the existence of a European consensus on the basis of ‘profound moral views’. It followed that because “the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected … the margin of appreciation accorded to a Contracting State’s protection of the unborn necessarily translates into a margin of appreciation for that Contracting State as to how it balances the conflicting rights of the mother. Judge Finlay-Geoghegan in her concurring opinion identified what might be regarded as a serious deficiency in the Court’s approach to assessing the margin of appreciation. is a real and dangerous new departure in the Court’s case-law. 17 . This was because the Court in its Vo v France 45 decision in 2005. A case-law which to date has not distinguished between moral and other beliefs when determining the margin of appreciation which can be afforded to States in situations where a European consensus is at hand [sic]. In their view. had held “that the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life”. Even assuming that these profound moral views are still well embedded in the conscience of the majority of Irish people. a similar deficiency of approach in other cases could affect the outcome. 57. The 6 dissenting judges were quite trenchant in their criticism of the majority’s decision that the existence of a European consensus did not narrow Ireland’s margin of appreciation. it did not consider whether 45 At [236] 46 At [237] 47 At [238].” 46 58. the A. quoting Open Door Counselling v Ireland.” 49 60. Although noting that Ireland’s margin of appreciation was not unlimited. which tends in a completely different direction. While the deficiency in the approach did not affect the outcome in ABC. 48 At [241] 49 At [9] of the Partly Dissenting Opinion. and painted this as having far-reaching consequences. to consider that this can override the European consensus.” 48 59.

such consensus was relevant to the margin of appreciation at issue. went hand in hand with supervision by the Court. The Court stated that in fact a decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of a Contracting State. Lautsi v Italy (March 2011) 62. a matter falling within Italy’s margin of appreciation. In particular she said that the facts available to the Court only related to the legislation in force in other States and the Court had no facts before it relating to the existence or otherwise of legal protection of a right to life of the unborn or on any identified public interest arising from profound moral values in relation to the right to life of the unborn. The Court said it must take into account the fact that Europe is marked by a great diversity of States particularly in the sphere of cultural and historical development. 61. It emphasised however that the reference to a tradition cannot relieve a Contracting State from fulfilling its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols. The Court noted that the Government explained that the presence of crucifixes in the State school classrooms was the result of Italy’s historical development. in principle. This case concerned a challenge to Italian regulations which mandated that crucifixes be placed on classroom walls in State schools. The decision as to whether crucifixes should be present in classrooms was. however. The Grand Chamber held that it had a duty in principle to respect the States’ decisions in those matters. Giving judgment in March of this year. a fact that gave it not only a religious connotation but also an identity-linked one which now corresponded to a tradition which Italy considered important to perpetuate. 64. thus. whose task was to satisfy itself that the choice did not amount to a form of indoctrination. in any of the majority Contracting States. That margin of appreciation. 18 . the Grand Chamber overturned this ruling by 15 votes to 2. In 2009 the Second Section of the Court of Human Rights unanimously found that this violated Article 2 of the First Protocol to the Convention (concerning the right to education) taken together with Article 9 (on freedom of conscience). 63. particularly where there was no European consensus. Self-evidently if the Court does not identify the relative consensus this will undermine its application of the margin of appreciation and risks significantly reducing the protection provided by that concept to the Contracting State involved. It held that States enjoyed a margin of appreciation in reconciling their functions regarding education with the right of parents to have their children educated in conformity with their own religious and philosophical convictions. including the place they accorded to religion.

The Court should not find a violation of the Convention on the basis of speculation as to facts which are fundamental to the assessment it is required to make.1. Lautsi might understandably have regarded the display of crucifixes in classrooms as amounting to a lack of respect for her right to ensure that her children were educated in conformity with her own philosophical convictions. the Canton of Geneva under 1 January. was it guilty of intentional homicide. Taxquet –v. 51 16th November 2010 19 . 67. Georgia. and could not be said to denote a process of indoctrination. 66. The jury answered “yes” to all four questions and the applicant was sentenced to 20 years imprisonment. or attempted intentional homicide and in each case was the offence premeditated. there was no evidence before it that the display of such a symbol on classroom walls might have an influence on pupils. The Grand Chamber found that. and the United Kingdom (England. while the crucifix was above all a religious symbol. Ireland. the Russian Federation.Belgium 50 69. A crucifix on a wall was an essentially passive symbol whose influence on pupils was not comparable to that of didactic speech or participation in religious activities. The Court in applying the margin of appreciation was undoubtedly influenced by the fact that there was no evidence before it that the display of a religious symbol on classroom walls might have an influence on pupils. It pointed out that it therefore could not reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed. Belgium. the Grand Chamber held that her subjective perception was not sufficient to establish a breach of Article 2 of Protocol No. Only four questions related to the applicant. 68. 50 Austria. Norway (only in serious appeal cases). namely. Any other approach would deprive the concept of margin of appreciation” of much of its protection. The case was heard by judge and jury in the Assize Court in Belgium. Whilst Ms. 1 of the Convention. 65. Malta. Spain. This of course highlights the importance of the Court acting on evidence with respect to all aspects of the case. Taxquet involved the prosecution Mr Taxquet along with seven others for the alleged murder of a Government Minister and attempting to murder the latter’s partner. Belgium is one of the ten Council of Europe Members who opted for a traditional jury system. Wales. He alleged a violation of Article 6. Switzerland. The applicant submitted that his right to a fair trial had been infringed in view of the fact that his conviction by the Assize Court had been based on a guilty verdict which did not contain reasons and could not be appealed against to a body with full jurisdiction. Scotland and Northern Ireland). He appealed on points of law against his conviction and the Court of Cassation dismissed the appeal. 51 The trial judge put 32 questions to the jury.

to highlight the considerations that had persuaded the jury of the accused’s guilt or innocence and indicated the precise reasons why each of the questions had been answered in the affirmative or the negative. The case therefore was of immense potential significance not only for Belgium but also for other countries which operated a jury system.3. 71. If juries were to provide reasons then this would involve part of the deliberations being exposed. 70. Under Irish and UK law. The Second Section of the Court had 53 held that there had been a violation of the applicant’s right to a fair trial under Article 6. However it neither identified the changes in the Court’s caselaw nor the Contracting States’ legislation (being referred to) nor explained how such changes altered the legal position. It found that since the jury did not reach its verdict on the basis of the case file but rather on the evidence it had heard at the trial. 53 On 13th January 2009 20 . intervened to state that the principle that no reasons were to be given was unequivocally set forth in its code of criminal procedure. It merely stated that certain Contracting States such as France had made provision for the right of appeal in Assize Court proceedings and for the publication of a Statement of Reasons in Assize Court decisions. Such lack of reasoning not only infringed 52 Article 38. The confidentiality of jury deliberations is intertwined with the absence of reasons to support the jury’s verdict. However the Court’s reasons were expressed in such broad and general terms as to cast significant doubt on the compatibility of the jury system with the Convention. and the preservation of public peace and order”.1. it was essential for the purposes of explaining the verdict both to the accused and to the public at large.1 of the Constitution provides that “a special court may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice. The Court asserted that earlier decisions of the Court and of the Commission in Papon and Zarouli were now out of date without providing any proper analysis and also asserted that since the Zarouli case there had been a perceptible change in both the Court’s caselaw and the Contracting States’ legislation. a jury trial is regarded as an essential protection of the rights of an accused person to be denied only in exceptional circumstances. Further the Court did not make it clear that the institution of the lay jury could not be called into question and the decision itself did not explain with sufficient clarity the peculiar features of the case which were so problematic in Convention terms. On any view such assertion did not establish a consensus and indeed it is noteworthy that in the appeal before the Grand Chamber France. 52 More particularly in Ireland and in the United Kingdom it is firmly established that the jury deliberations are not disclosed. The decision of the Second Section related to the particular facts of the particular case. 72. To impose a requirement for reasons would alter the whole nature and essence of the system of trial as operated in Ireland.

The concept of margin of appreciation in the abstract does not provide a robust and constant safeguard for those Contracting States concerned by the Court’s expansive interpretation. 73. the application of the concept can be undermined if the Court is not sufficiently aware (due to lack of evidence or otherwise) of the differing traditions and legal context in different Contracting States. “The Contracting States enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems are in compliance with the requirements of Article 6. Finally in this context an absence of close legal reasoning can result in the Court failing to appreciate the complexities of the issues and the effects of the Court’s judgment. the Grand Chamber. expressly recognised that the use by Contracting States of a lay jury system was guided by the legitimate desire to involve citizens in the administration of justice particularly in relation to the most serious offences and that it reflected each State’s history. but also removed a fundamental protection for the Contracting States. It further stated that a State’s choice of a particular justice system is in principle outside the scope of supervision carried out by the Convention and reiterated that in cases arising from individuals petitions the task is not to review the relevant legislation in the abstract. thus resulting in the non-application of the concept of the margin of appreciation in the particular case. which are not properly evidence-based about the nature and extent of the harm and the effect of the alleged violation. then the concept is likely to have a narrow application in the particular case. This talk of awareness can frequently arise because relevant material and information has not been put before the Court by the parties involved in the particular case. while upholding the Second Section’s determination that there had been an infringement of the Convention in the particular case. the principle of legal certainty because of the confusion thereby created. In short. In particular. while also taking into account the specific circumstances. Conclusion: 75. The Court also specifically stated that the institution of the lay jury system could not be called into question in this context. 21 . The application of the concept can also be undermined if the Court is not sufficiently careful in evaluating the evidence presented to it in connection with the alleged violation. the nature and complexity of the case. Fortunately. The Court’s task is to consider whether the method adopted to that end has led in a given case to results that are compatible with the Convention. it must ascertain whether the proceedings as a whole were fair”. tradition and legal culture. 74. but to confine itself as far as possible in examining the issues raised by the case before it. If the Court accepts assertions.