Margin of appreciation doctrine PDF

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Summary of the doctrine of the margin of appreciation...

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Margin of appreciation doctrine: notes: 7.1  court must define a minimum level of protection to convention rights, to guarantee they are applied equally throughout MS  court cannot chose a maximalist approach o states bear the primary responsibility for this protection, and the Court has a subsidiary role of supervision – as long as states respect the limits set by the Court, they retain their discretion to decide which measure and restrictions are necessary. (all domestic remedies have been exhausted) o little consenus on exact meaning on fundamental rights – open definition where rights are not clearly defined – can be more appropriate for court to avoid uniform, maximalistic approach then to accept one (e.g. ‘morals’ – change over rime, from place to place – would be impractical to have uniform conception) o many fundamental rights issues require legal assessments - means its easier and more practicial for national authorities to see which measures/remedies should be applied and by what means - detailed assessment of facts and consequences is often required to make choices – means national courts are often better equipted since they have expertise in areas and can access the economic/social consequences and values of issues – they are also close to the parties and experts involved so can hear all views from a particular arrangement (compared to court who stands at relative distance) – states in better positions that court to assess the necessity of certain measures to achieve a certain aim  margin of appreciation doctrine therefore developed by the Court to balance their need to provide protection of fundamental rights, with allowing the states freedom to use their abilities and powers to make choices. 7.2  Belgian Linguistics: started development of MoA doctrine; Court cannot assume role of national authorities as it would lose subsidiary role, review by court only concerns conformity of measures (chosen by MS) with Convention.  Handyside: introduced MoA;  strength in the MoA is in its flexibility and variability – allows Court to vary intensity of its review of state compliance with negative/positive obligations  wide margin – court examines choices of state ‘superfically’ to see if result is not clearly disproportionate; burden of proof to show restriction is unjustified it places with applicants; procedural test (manifest unreasonableness)  narrow margin – court closely consider facts – burden of proof is on national authorities to show limitation of rights was on careful assessment with important interests supporting it; court applies strict test of necessity (less intrustive measures  certain or just ‘a margin’ – could be anywhere on scale, usually court applies neutral approach; generally the court is inconsistent in the way it uses margins – therefore there is no specific test or level of scrutiny ever established 7.3  where absolute rights are concerned (e.g. Art.3) states are not allowed leeway in terms of MoA; court must apply thorough scrutiny, or where a right is absolutely fundamental (art 2 – no derogation in peace time)

MoA applied commonly to derogable provisions in convention, particularly articles 811 and 15; or for defining certain terms e.g. ‘morals’ in limitation clauses  MoA allow plays role in Art. 14 (non-discrimination); very weighty reasons test – similar to narrow margine, where test implies strict review from court – ‘suspect grounds’ over the better placed argument  MoA when defining scope of positive obligations of states; often wide (better-placed) although not an absolute rule. 7.4 : determining the scope of MoA  S. and Marper: breadth of margin depends on factors including nature of convention right, importance for individual, nature of interference and the object pursued by interference. narrow – where right at stake is crucial to individuals enjoyment of rights; wider – where there is no consenus between states to importance or how to protect right o ‘common ground’ factor: closely related to consenus; Wingrove case – no common ground between states on a certain matter then wide margin – court considered UK decision was ‘to protect rights of others’, particularly Christians – no uniform conception on above, since what is likely to cause offence is subject to change place to place, time to time; therefore court held respect for religious opinion is an aim on which opinions in Europe clearly diverge so margin of appreciation wide  contrasts with case where general interest where views in Europe do not diverge (Sunday Times) where prohibited expressions that amounted to contempt of court – if there is an emerging consensus on certain topic  usually combined with other factors – never decisive for the outcome of a case since is difficult to establish presence of European consensus without ‘cherry-picking’ o ‘better placed’ – states are in better position to access necessity, suitability or reasonableness of limitation – important  moral and ethical issues – usually wide margin – closesly relation again to consensus  socio-economic issues; policital choices – requirements of assessment of potential consequences of changing legislation/budget etc; and direct knowledge of their society needs – therefore state in better places to make such choices e.g. austerity measures; equally wide to general health care, housing, taxation and industry (factorys) – state should have public interest o special context cases:  Smith and Grady: dismissal of officers from army because of their homosexuality; core of national security aim is operational effectiveness, court allows state room to restriction right to respect for private life, where there is a real threat to the op.effectiveness (widens margin)  horizontal relations (between private parties) through positive obligations of the state to prevent such instances occurring – wide margin 

 pilot judgement procedure:court identifies problems of compliance that have led to similar complaints to the Strassbourg; court identifies the problems in a judgment in one case (pilot) and then the respondent state must provide general solution to problem; after a period of time court decides on another case to see if problem has been addressed and whether it can refer all remaining cases back to national authorities – this is wide margin for the states (generally easy for states to justifiy remedy introduced in response to pilot judgment)  state of emergency (art.15) A v UK  fourth instance argument (interpretation of national law and establishing facts) o the first place for national authorities to construe and apply domestic law – wide margin o also applies to non-derogable rights or limited exceptions  procedural quality and fairness o wide margin where states have been fair and of high quality, and provided thorough scrutiny; contrary to this would be a narrow margin where states decision making process was doubtful  competing convention rights o states allowed more leeway for cases concerning conflict of rights to strike fair balance between conflicting interests o nature and importance of issue at stake  democracy, pluralism, human dignity and autonomy are the 4 main values underlying the Convention  narrow – essence of right affected; wider – less important aspect at stake  e.g. narrow – restriction on political expression (democracy fundamental) – state would have to provide compelling and inescapable reasons to dissolve parties  pluralism: particularly relating to religion – narrows margin; state has duty of impartiality regarding religious beliefs  article 8 generally broad, however exceptions where matter is intimate or sensitive aspect of someones life  if the court finds right at stake is not closely relation to applicants autonomy or human dignity, then margin may be wider e.g. Parrillo case about fate of human embryos, did not concern core right; similary disclosure of someones bank date was not intimate details or closely related with identity  seriousness and nature of the interference  limiting scope if interference makes it impossible to enjoy the tight, e.g. restrictions of freedom of expression like seizure of all copies of a newspaper

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 intrusiveness  widening scope if company, rathen than individual affected o Balancing the factors determining the margin  narrow obvious – if core right affected and there is clear consensus in Europe that such an interference is not acceptable  courts must weigh difference factors and decide accordingly; removal of one factor if all remaining ones point in the same direction  generally, courts resolve this issue by leaving a ‘certain margin; or proceeds directly to discuss reasonableness of restriction 7.5 : Continued relevance of margin o main function to determine how strictly it will scrutinise the national compliance with negative and positive obligations o doctrine provides clarity and predictablility, making it easier to authorities to anticipate approach of the Court o court now increasingly uses other argumentative devices to show restraint, like sets of general principles and standards – however they are there to supplement rather than replaces the doctrine o court still relies on doctrine and the factors determing its scope, therefore is of contining relevance, but its important to be aware its function has change and may continue to change in future....