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The margin of appreciation doctrine: a low-level institutional view

Published online by Cambridge University Press:  02 January 2018

Dimitrios Tsarapatsanis
Dimitrios Tsarapatsanis*
Affiliation:
University of Sheffield School of Law
*
Dimitrios Tsarapatsanis, University of Sheffield School of Law, Bartolomé House, Winter Street, Sheffield S3 7ND, UK. Email: [email protected]
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Abstract

The paper argues that the margin of appreciation (MoA) doctrine of the European Court of Human Rights (ECtHR, or Court), should be understood as, inter alia, an underenforcement doctrine, according to which Convention rights should not be applied to their full conceptual limits. Underenforcement is justified by institutional considerations relating to the Court's role and competence. Although institutional considerations have been theorised normatively, the paper claims that ‘low‐level’ empirical inquiry into the comparative institutional competence of different decision makers across the Council of Europe is critical in explaining MoA. Such comparative empirical analysis ties shared institutional responsibility and subsidiarity with certain traits of decision makers when determining Convention rights. In this context, the paper briefly compares the decision making abilities of different institutions. It concludes by stressing that under certain circumstances the Court can be worse placed than national authorities to decide on violations of Convention rights. This is corroborated by the Court's case‐law concerning Convention rights impinging on the economic and social policies of States Parties.

Type
Research Article
Information
Legal Studies , Volume 35 , Issue 4 , December 2015 , pp. 675 - 697
Copyright
Copyright © Society of Legal Scholars 2015 

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Footnotes

*

The author wishes to thank Tammy Hervey, Dimitris Kyritsis, Richard Collins and two anonymous reviewers for their helpful comments on an earlier draft. The usual disclaimer applies.

References

1. See, eg Lautsi and Others v Italy App no 30814/06 (ECtHR 18 March 2011). For criticism of the Court's use of MoA in Lautsi, see Kyritsis, D and Tsakyrakis, S ‘Neutrality in the classroom’ (2013) 11 Int'l J Con L 217 Google Scholar.

2. See Sager, L ‘Fair measure: the legal status of underenforced constitutional norms’ (1978) 91 Harv L Rev 1212 at 1213.CrossRefGoogle Scholar

3. The term ‘underenforcement’ has been coined by constitutional theorist Lawrence Sager; see Sager, above n 2, at 1212.

4. The birthplace of this typical dictum is the case of Ireland v UK (18 January 1978), Series A no 25 at para 207. This case was also the one in which the expression ‘margin of appreciation’ was used for the first time.

5. For a few seminal examples from the Court's case-law, see Leyla Şahin v Turkey (10 November 2005), App no 44774/98 ECHR 2005-XI; Wingrove v UK (25 November 1996), ECHR 1996-V; Evans v UK (10 April 2007), App no 6339/05 ECHR 2007-IV; Vo v France (8 July 2004), App no 53924/00, ECHR 2004-VIII.

6. See eg Brauch, JA ‘The margin of appreciation and the jurisprudence of the European Court of Human Rights: threat to the rule of law’ (2004-2005) 11 Colum J Eur L 113.Google Scholar

7. See eg the partly dissenting opinion of Judge De Meyer in Z v Finland (1997) 25 EHRR 371: ‘In the present case the Court once again relies on the national authorities’ “margin of appreciation”. I believe that it is high time for the Court to banish the concept from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies … 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.’

8. On this point, see the Court's well-established case-law on ‘autonomous concepts’, which was inaugurated by Engel and Others v Netherlands (1976) Series A no 22. For useful discussion of the ‘autonomous concepts’ method, see Letsas, G ‘The truth in autonomous concepts: how to interpret the ECHR’ (2004) 15 Eur J Int'l L 279 CrossRefGoogle Scholar.

9. See eg the opinion of Judge De Meyer, above n 7; Benvenisti, E ‘Margin of appreciation, consensus, and universal standards’ (1998-1999) 31 NYU J Int'l L & Pol 843.Google Scholar

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13. Ibid; Waldron, J ‘Separation of powers in thought and practice?’ (2013) 54 B U L Rev 433.Google Scholar

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19. Von Staden, above n 11; Von Bogdandy, and Venzke, above n 16; Kumm, above n 18.

20. Komesar, N Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy (Chicago: The University of Chicago Press, 1994).Google Scholar

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22. Sager, above n 2. For a related approach, see Fallon, R Implementing the Constitution (Cambridge, MA: Harvard University Press, 2001)CrossRefGoogle Scholar.

23. Sager, above n 2, at 1213.

24. Ibid, at 1216; Fallon, above n 22, p 5.

25. See eg FCC v. Beach Communications, Inc. (1993) 508 US 307 at 313-315: ‘In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines [eg race, national origin, religion, or alienage] nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification … This standard of review is a paradigm of judicial restraint … [A] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data’; quoted by Fallon, above n 22, at 78.

26. Sager, above n 2, at 1215 (internal quotation marks omitted).

27. Ibid, at 1226.

28. Fallon, above n 22, p 111.

29. Sager, above n 2, pp 1222-1228.

30. For a liberal construal of the substantive considerations that determine the content of Convention rights, see Letsas, G A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2009) pp 99–119 Google Scholar.

31. See eg cases of the Court cited above, n 5.

32. To provide just one example, the French Constitutional Council commonly resorts to the argument that its ‘power of appreciation’ is not the same as that of the legislature, in order to lower its standard of review of the constitutionality of Parliament's acts. See eg its recent decision no 2013-341 QPC (27 September 2013) at para 6.

33. For an extensive overview of the recent case-law of the Court in this respect, see Kratochvíl, J ‘The inflation of the margin of appreciation by the European Court of Human Rights’ (2011) 29 NL Q Hum Rts 324 at 330: ‘In all these circumstances the Court seems to use the doctrine as a vehicle which influences the strictness of the requirements imposed on States. When the margin is narrow, the bar for finding a violation of the Convention is presumably set high and the ensuing obligation is more stringent. The margin works here like a bar in a high jump competition.’Google Scholar

34. See Ireland v UK, above n 4.

35. For an overview, see Yourow, HC The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Dordrecht: Kluwer, 1996);Google Scholar Brems, E ‘The margin of appreciation doctrine in the case-law of the European Court of Human Rights: compliance or cross-purposes’ (1996) 56 ZaöRV 240;Google Scholar Greer, S The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights (Strasbourg: Council of Europe Publishing, 2000);Google Scholar Kratochvíl, above n 33.

36. For an overview and a critical analysis of the Court's case-law regarding Arts 8–11 on limitations of Convention rights on grounds of public morals, see Letsas, above n 30, pp 92-98.

37. Benvenisti, above n 9, at 844.

38. See Letsas, G ‘Two concepts of the margin of appreciation’ (2006) 26 Oxford J Legal Stud 705 at 729.CrossRefGoogle Scholar

39. For a related point, see Sweeney, JA ‘Margins of appreciation: cultural relativity and the European Court of Human Rights in the post–Cold War era’ (2005) 54 Int'l Comp L Q 459.CrossRefGoogle Scholar

40. As Dean Spielmann indicates: ‘… the margin of appreciation is virtually inexistent when it comes to the non-derogable rights (right to life, prohibition of torture, prohibition of slavery and forced labour, prohibition of retrospective legislation, the ne bis in idem rule)’ (D Spielmann ‘Allowing the right margin the European Court of Human Rights and the margin of appreciation doctrine: waiver or subsidiarity of European review?’ (2012), CELS Working Paper, at 11; available at http://www.cels.law.cam.ac.uk/cels_lunchtime_seminars/Spielmann%20-%20margin%20of%20appreciation%20cover.pdf); accessed •• •••••••• ••••).

41. On the notion of legal doctrine that is at issue here, see Berman, M ‘Constitutional decision rules’ (2004) 90 Virg L Rev 1;Google Scholar Kyritsis, D ‘Whatever works: proportionality as a constitutional doctrine’ (2014) 34(2) Oxford J Legal Stud 395.CrossRefGoogle Scholar

42. Some critics of MoA have insisted that the doctrine is indeterminate or even incoherent; see eg Kratochvíl, above n 33, at 336-343; Brauch, above n 6; Feingold, CS ‘The doctrine of margin of appreciation and the European Convention on Human Rights’ (1977-1978) 53 Notre Dame L Rev 90 Google Scholar.

43. Letsas, above n 38, at 709–715, 720–724.

44. Ibid, at 706.

45. Ibid, at 706.

46. For a particularly forceful way of distinguishing between the empirical and the normative as regards legal facts, see Kelsen, H Introduction to the Problems of Legal Theory (Oxford: Clarendon Press 1992) pp 7–14.Google Scholar

47. Kyritsis, above n 10.

48. See Von Staden, above n 11; Carozza, above n 15.

49. Thus, formally decisions by the Court only have an inter partes legal effect; it is debatable whether they also have erga omnes legal force and, if so, on what basis. See Zupancic, JBM ‘Constitutional law and the jurisprudence of the European Court of Human Rights: an attempt at a synthesis’ (2001) 2 Germ L J 10; available at http://www.germanlawjournal.com/index.php?pageID=11&artID=30 (accessed •• •••••••• ••••).Google Scholar

50. Kyritsis, above n 10; Kyritsis, D Shared Authority. Courts and Legislatures in Legal Theory (Oxford: Hart Publishing, 2015)Google Scholar.

51. Kyritsis, above n 10, at 315-318.

52. On some of these systemic effects, see Helfer, L ‘Redesigning the European Court of Human Rights: embeddedness as a deep structural principle of the European human rights regime’ (2008) 19 Eur J Int'l L 125 at 134–138;CrossRefGoogle Scholar Helfer, L and Voeten, E ‘International courts as agents of legal change: evidence from the LGBT rights in Europe’ (2014) 68 Int'l Org 77.CrossRefGoogle Scholar

53. Helfer, above n 52; Caflisch, L ‘The reform of the European Court of Human Rights: Protocol No. 14 and beyond’ (2006) 6 Hum Rights L Rev 403; Greer, above n 11, pp 136–192 CrossRefGoogle Scholar.

54. Helfer, above n 52, at 135.

55. Ress, G ‘The effect of decisions and judgments of the European Court of Human Rights in the domestic legal order’ (2005) 40 Tex Int'l L J 359 at 374;Google Scholar Helfer, above n 52, at 135.

56. On the concept of reasonable disagreement, see Rawls, J Political Liberalism (New York: Columbia University Press, 1993). On the deployment of Rawls’ conception of public reason to account for reasonable disagreement at the level of international law,Google Scholar see Rawls, J Law of Peoples (Cambridge, MA: Harvard University Press, 2002).Google Scholar

57. See eg Dzehtsiarou, K ‘Does consensus matter? Legitimacy of European consensus in the case law of the European Court of Human Rights’ (2011) Pub L 534.Google Scholar

58. Article 1 of the Convention reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’

59. On the gradual jurisprudential construction of an expansive understanding of Art 13, see Helfer, above n 52, at 144-146.

60. Ibid, at 141–149. Helfer calls this feature of the ECHR ‘diffuse embeddedness’, and contrasts it with ‘direct embeddedness’ (ibid, at 134-138).

61. See the seminal judgment in Broniowski v Poland App no 31443/96 (ECtHR 22 June 2004); Helfer, above n 52, at 146-149.

62. Helfer, above n 52, at 148.

63. See the Draft Protocol no 16, the Preamble of which reads as follows: ‘Considering that extension of the Court's competence to give advisory opinions will further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity.’

64. See Broniowski v Poland, above n 61, at para 193: ‘Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State's obligations under Article 46 of the Convention, in view of the systemic situation which it has identified, the Court would observe that general measures at national level are undoubtedly called for in execution of the present judgment, measures which must take into account the many people affected.’

65. Ibid, at para 193.

66. Ibid, fourth holding.

67. Broniowski v Poland App no 31443/96 (ECtHR 28 September 2005); see Keller, H, Forowicz, M and Engi, L Friendly Settlements Before the European Court of Human Rights: Theory and Practice (New York: Oxford University Press, 2010)CrossRefGoogle Scholar.

68. Helfer, above n 52.

69. Vermeule, above n 21, p 149. Vermeule calls this choice the ‘institutionalist dilemma’.

70. Carozza, above n 15, at 40.

71. See Art 1 of Protocol no 15, which adds the following recital to the Convention: ‘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 this 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 Rights established by this Convention.’

72. In this respect, see the seminal Belgian Linguistic Case (1968) Series A no 6 at para 10 and Handyside v UK (1976) ECHR 5; from the more recent case-law;Google Scholar see Selmouni v France App no 28503/94 (ECtHR 28 July 1999) at para 74; Kudla v Poland App no 30210/96 (ECtHR 28 October 2000) at para 152.

73. Cf Art 1 of the Convention.

74. Cf Art 35 para 1 of the Convention. The Court holds that, in order to be admissible, the complaint that a Convention right has been breached must be raised ‘at least in substance’ before domestic courts. See Castells v Spain App no 11798/85 (ECtHR 23 April 1992) at para 32; Azinas v Cyprus App no 56679/00 (ECtHR 28 April 2004) at paras 40–41.

75. Helfer, above n 52, at 142-144.

76. See eg A De Noriega, Estella The EU Principle of Subsidiarity and its Critique (Oxford: Oxford University Press, 2002);Google Scholar Craig, P ‘Subsidiarity: a legal and political analysis’ (2012) 50 J Com Market Stud 72.CrossRefGoogle Scholar

77. Carozza, above n 15, at 40-49; Von Staden, above n 11, at 1033-1038; Føllesdal,, above n 15, at 198-213.

78. Føllesdal, above n 15, at 193-197.

79. Ibid, at 190.

80. Airey v Ireland (1979) Series A no 32 at para 24. The ‘principle of effectiveness’ is a well-established principle of interpretation in international law. See eg Lauterpacht, H ‘Restrictive interpretation and the principle of effectiveness in the interpretation of treaties’ (1949) 26 Br Year Int'l L 48.Google Scholar

81. See eg Voeten, E ‘The impartiality of international judges: evidence from the European Court of Human Rights’ (2008) 102 Am Pol Sci Rev 417;CrossRefGoogle Scholar Helfer and Voeten, above n 56.

82. Voeten, above n 81; Helfer and Voeten, above n 52.

83. Vermeule, above n 21, p 153.

84. See eg Vermeule, above n 21; Komesar, above n 20; Sunstein, C and Vermeule, A ‘Interpretation and institutions’ (2003) 101 Mich L Rev 885 CrossRefGoogle Scholar.

85. Coan, A ‘Judicial capacity and the substance of constitutional law’ (2012) 122 Yale L J 100 at 102.Google Scholar

86. Ibid, at 105–106.

87. Such as Dworkin's fictitious judge Hercules, on whom see Dworkin, R Taking Rights Seriously (Cambridge, MA: Harvard University Press 1978) ch 4.Google Scholar

88. Vermeule, above n 21, pp 154–156.

89. Ibid, at 110–112.

90. Ibid, at 155.

91. Vermeule, A The System of the Constitution (New York: Oxford University Press, 2011).Google Scholar

92. Komesar, above n 20.

93. Ibid, pp 3–13.

94. Rawls, above n 56, at 231-240.

95. Sager, L Justice in Plainclothes: A Theory of American Constitutional Justice (New Haven, CT: Yale University Press, 2004) p 203.Google Scholar

96. For a fuller treatment of the cognitive limitations of judges, see Vermeule, above n 21, pp 153-182.

97. Ibid, p 77.

98. Ibid, pp 123–129.

99. Ibid, pp 77–79.

100. Rachlynski, J ‘Rulemaking versus adjudication: a psychological perspective’ (2005) 32 Fl St U L Rev 529.Google Scholar

101. Komesar, above n 20, pp 139–140.

102. Ibid, p 139 (footnote omitted).

103. Coan, above n 85.

104. Ibid, at 103.

105. Ibid, at 105-106.

106. Ibid, at 110.

107. Ibid, at 111-112.

108. Komesar, above n 20, p 138.

109. Ibid, p 142.

110. Ibid, pp 145-147.

111. Kyritsis

112. Komesar, above n 20, p 134. Regarding, more particularly, the appointment of judges to the ECtHR, see Voeten, E ‘The politics of international judicial appointments: evidence from the European Court of Human Rights’ (2007) 61 Int'l Org 669.CrossRefGoogle Scholar

113. Kyritsis, above n 10, at 320.

114. Dworkin, R A Matter of Principle (New York: Oxford University Press, 1985) pp 33–71.Google Scholar

115. Fallon, above n 22, p 40.

116. Kyritsis, above n 10, at 321; Føllesdal, above n 15, at 600.

117. For an overview of which, see Helfer, above n 52, at 134-141.

118. See, from the recent case-law of the Court, Vallianatos and Others v Greece Apps. no 29381/09 and 32684/09 (ECtHR 7 November 2013), which concerned a challenge to a Greek law creating a form of partnership other than marriage (‘civil unions’) excluding same-sex couples. The Court has consistently held that in cases involving discrimination on grounds of sexual orientation, differences in treatment ‘require “particularly convincing and weighty reasons” by way of justification … Where a difference in treatment is based on sex or sexual orientation the State's margin of appreciation is narrow … Differences based solely on considerations of sexual orientation are unacceptable under the Convention’ (at para 77).

119. See eg Brauch, above n 6; Kratochvíl, above n 33.

120. Vermeule, above n 21, pp 176-179. Under a satisficing reasoning strategy, a decision maker seeks to make a ‘good enough’ but not necessarily the ‘best’ choice; see Slote, M Beyond Optimizing: A Study of Rational Choice (Cambridge, MA: Harvard University Press, 1989)CrossRefGoogle Scholar.

121. Vermeule, above n 21, pp 179-180.

122. Ibid, pp 180–181. On cognitive heuristics outside contexts of judicial decision, see Kahneman, D, Slovic, P and Tversky, A (eds) Judgment under Uncertainty: Heuristics and Biases (Cambridge, UK: Cambridge University Press 1982).CrossRefGoogle Scholar

123. On rule-consequentialism as a decision procedure, see Harsanyi, J ‘Rule utilitarianism and decision theory’ (1977) 11 Erkenntnis 25;CrossRefGoogle Scholar Harsanyi, J ‘Morality and the theory of rational behaviour’ in Sen, A and Williams, B (eds) Utilitarianism and Beyond (Cambridge, UK: Cambridge University Press, 1982) pp 39–62.Google Scholar

124. Spielmann, above n 40, at 16-17: ‘if the aim pursued concerns national security the margin will be a wide one. It will also be wide when it comes to social and economic policies’.

125. James and Others v UK (1986) Series A no 98.

126. The James approach has been recurrent in many cases relating to the regulation of the right to property; see eg Lithgow v UK (1986) 8 EHRR 329 at para 122; Former King of Greece v Greece (2001) 33 EHRR 516 at para 87.

127. Wieczorek v Poland App no 18176/05 (ECtHR 8 December 2009). The Court had already taken a similar approach in Goudswaard-Van der Lans v Netherlands ECHR 2005-XI.

128. Stec and Others v UK ECHR 2006-VI.

129. Jahn and Others v Germany ECHR 2005-VI. The Court has upheld this line in most cases to do with the ‘change of political and economic regime’. See, among many others, the Court's judgments in Berger-Krall and Others v Slovenia App No 14717/04 (12 June 2014); Zvolský and Zvolská v the Czech Republic, App No 46129/99 ECHR 2002-IX.

130. Koufaki and ADEDY v Greece Apps no 57665/12 and 57657/12 (ECtHR 7 May 2013); Da Conceição Mateus and Santos Januário v Portugal Apps no 62235/12 and 57725/12 (ECtHR 8 October 2013)

131. Markt Intern Verlag Gmbh and Klaus Beermann v Germany (1989) Series A no 165 at para 35.

132. Gillow v UK (1986) 11 EHRR 355 at para 56.

133. See eg Kjartan Ásmundsson v Iceland ECHR 2004-IX, a case relating to the loss of disability pension entitlements, in which the Court said that it was ‘struck by the fact that the applicant belonged to a small group of 54 disability pensioners (some 15% of the 336 persons mentioned above) whose pensions, unlike those of any other group, were discontinued altogether on 1 July 1997. The above-mentioned legitimate concerns about the need to resolve the Fund's financial difficulties seem hard to reconcile with the fact that after 1 July 1997 the vast majority of the 689 disability pensioners continued to receive disability benefits at the same level as before the adoption of the new rules, whereas only a small minority of disability pensioners had to bear the most drastic measure of all, namely the total loss of their pension entitlements’ (at para 43). The Court found unanimously that Article 1 (P1-1) had been violated. On the basis of the fact that only the pensions of a very small group were discontinued, the Court was suspicious of the justification provided by the respondent state and tightened its scrutiny accordingly.