FAN Jizeng*

 

Abstract: The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European Convention to an inflation of language used or misused by the Strasbourg Court to preserve the State's "room for manoeuvre" or "latitude of deference or error." In this paper, I divide the concept of margin of appreciation into two categories: the substantive and structural concept. The Strasbourg Court usually generously defers to national decisions in structural scrutiny where it has to respect European pluralism and the collective interests of the contracting parties unless domestic decisions are regarded as "manifestly unreasonable." In contrast, the European Human Rights Court scrutinizes carefully in the substantive sense of margin of appreciation. Some factors or test approaches will be identified first, by which the Court substantively narrows or limits the scope of margin preserved for the States. The result of two conceptual margins of appreciation may be reciprocally transformed in some circumstances. When the collective good surely undermines the core of Convention rights, the Court will not stand with the domestic argument since it must ensure the implementation of pan-European human rights standards. On the other side, the Court has no capacity to further increase strict scrutiny in cases where there is a complicated relationship between the means and ends in the proportionality test, implying that domestic courts are better placed than the supranational court given the fact that they know better the local reality and have more local knowledge.

 

Key Words: margin of appreciation; deference; proportionality; essence of rights; living instrument

 

 

The Strasbourg Court is an ordinary international court specific to human rights cases without general competence to impose its ruling decisions on the European Convention with primacy and direct effect into a contracting party's legal system.¹ Like other ordinary international treaties, the status of the European Convention in the domestic legal system depends on the national constitutional or legislative institution, or else on judicial decisions. Thus, national law determines the applicability of the European Court of Human Rights (ECHR) and its hierarchical position in the domestic legal system.² The Strasbourg Court acts as an external judicial body subsidiarily supervising domestic decisions and guaranteeing protection within the scope of European minimum standards after the appellant has exhausted domestic remedies. Unlike the EU legal order aimed at unification of implementation of Community law, Art. 53 of ECHR reserves "margin" to the Contracting Parties, who can autonomously interpret and apply Convention rules as long as they satisfy Strasbourg Court requirements. The Strasbourg regime, although it has gained a widely successful reputation for fundamental rights protection in Europe, still restricts most of its efforts to adjudicating individual complaints³ without radically seeking to extend its power to supersede national judiciary bodies. When the Strasbourg Court comes to the decision of a national court, it does not seek to replace the decision made by national judicial bodies with its own opinion.⁴ Even the execution of final judgments heavily relies on the voluntary actions of the Contracting Party or political measures taken by the decision of the Committee of Ministers according to Article 46. These facts indicate that the Strasbourg Court tends to keep distance from the enforcement of final judgments, which naturally belongs to the arena of political affairs.

 

In order to maintain the autonomy of Contracting Parties and uniqueness of their constitutions, the Strasbourg Court was aware in earlier times that it was difficult to develop a "European Standard" of fundamental rights protection.⁵ The Strasbourg Court thereby borrowed the approach of margin of appreciation (marge d'appréciation) as a way to contract with the common European institution, within which the Strasbourg Court defined itself as a "subsidiary supervisor," to guarantee the fundamental rights afforded in the Convention, whereas States have the main responsibility for the protection of human rights.⁶ Thus, in the eyes of the Strasbourg regime, the Strasbourg mechanism of protection of human rights should be embedded in cooperation and mutual respect between the national and Strasbourg courts, the former of which assume the very crucial role of applying the Convention.

 

In the Greece vs. UK ruling, this doctrine was applied generously by the European Committee of Human Rights in deference to British authority's derogation from fundamental rights under the circumstance of public emergency. Having summarized the various threats to public order and safety in Cyprus at the time, the Court recognized in the following paragraph 138 that ". . . the Government concerned retains, within certain limits, its discretion in appreciation of the threat to the life of the nation." Moving to the French version of the decision, one finds "certain discretion on appreciation," which has been interpreted "une certaine marge d'appréciation." Due to the fact that the doctrine of proportionality was not yet taken seriously by the Strasbourg regime, the European Commission on Human Rights generously applied the doctrine without considering proportionally drawing the boundary between the State's privilege and obligation to respect the Convention.⁷ In the Lawless case,⁸ this doctrine was referred to in a separate opinion submitted by five commissioners who principally argued that the contracting party enjoyed broad width of appreciation on derogation from its Convention obligation in a public emergency.

 

"It is evident that a certain discretion—a certain margin of appreciation—must be left to the Government in determining whether there exists a public emergency which threatens the life of the nation and which must be dealt with by exceptional measure derogating from its normal obligation under the Convention."

 

Generally, since the doctrine is the effective instrument for weighing and balancing Convention rights against collective interests or state security, it has a high profile in judgments relating to the majority of Convention rights. Apart from Article 15 of ECHR (derogation in times of emergency), it is very common to see other judgments full of the term "margin of appreciation" when Strasbourg judges balance individual rights prescribed by Article 8‒11 (liberal rights), Article 1 of Protocol 1 and Article 14 (anti-discrimination) and others with the equal importance of collective goods,⁹ except those rights are absolute leaving no margin of derogation for state authorities.¹⁰

 

The Strasbourg Court explicitly applied the doctrine in the famous Handyside ruling¹¹, balancing the rights of publishing and distributing an English edition of the Little Red Schoolbook with public morality and interest. The appellant was convicted of criminal offense based on the Obscene Publication Act 1969 because this school reading material contains some sexual information and advice. However, the translation could be legally found in the market of other contracting states. The Court in this circumstance faced the sticky problem of whether or not a uniform European Standard exists or whether it should adopt a particular standard to rule on the case with respect forthe autonomy of the British legal system. Considering the very short period since its foundation, the Court had to adopt the latter choice in that it was impossible to find a uniform conception of public morality among the legal systems of the CoE Member States. The concept of morals regulated by domestic law varies from state to state and time to time. Thus, the Strasbourg Court held that "the state authorities are in principle in a better position than international judges to give an opinion on these requirements as well as the 'necessity' of a 'restriction' or 'penalty' intended to meet them." Notably, the Court claimed in general that "margin" is not unlimited. In the circumstance of Article 10, domestic legislation and judicial decisions on limiting Convention rights should be examined under the features of "democratic society" that rely on the doctrine of proportionality, indicating that the rights' bearer should bear in mind that its "duties and responsibilities" are rooted in democratic society coexisting with those rights. The Court therefore recognized that it had no competence to replace the national decision with its own ideas, neither could it examine the legitimacy of the administration of state organs guaranteed by domestic legislation. Although the book was legally published in the other member states of the European Council, the Court did not support the appellant's argument for equal treatment with translators in other states; instead, Strasbourg claimed that public morals were a series of diverse standards. Strasbourg's decision reflected its earlier reluctance to radically challenge the authorities of domestic legislation and judicial decisions, which in turn enhanced the enthusiasm of contracting states for taking the Convention and Strasbourg jurisprudence into consideration in domestic judgments.¹² The doctrine of proportionality is the inherent measure for Strasbourg tailoring or examining the reasonableness of the breadth of the margin of appreciation pleaded by the member states or impugned by the appellants. In the case of Vagrancy¹³, the Strasbourg Court applied the doctrine of proportionality explicitly for the first time, ruling that the Belgian practice of detaining vagrants was found to be proportionate and not overstepping the limits of "the power of appreciation which Art 8(2) of the Convention leaves to the Contracting Parties."¹⁴

 

However, the Strasbourg Court seldom presents us the concrete method for applying the doctrine of proportionality in a way compatible with the requirements of what is "necessary in democratic society." Even some scholars have proposed that application of the margin of appreciation lacks consistency and predictability and threatens the rule of law in the Convention regime.¹⁵ Sometimes, the Court identifies the margin of appreciation through the definition or interpretation of Convention rights¹⁶ rather than the test of proportionality. For instance, the Lingens¹⁷ ruling is one of the most frequently referenced cases concerning whether or not inappropriate political expression falls within the scope of freedom of expression provided by Article 10 of the ECHR. The Court followed the general test model in scrutinizing the margin of appreciation reserved to the state under the framework of the Convention: (1) whether the limitation is prescribed by law; (2) whether there is a legitimate aim to the limitation; (3) whether it is necessary in democratic society. The Strasbourg Court gave affirmative answers to the first two questions, but carefully scrutinized the scope of the government's margin underlying the doctrine of proportionality. The judges first stressed the essence of freedom of speech according to Article 10, interpreting that "'information' and 'ideas' that are not only favorably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb" are basic demands of "democratic society." As for reaching the conclusion that the scope of politicians' right to reputation of should be limited more than for ordinary individuals, the Court highlighted the essential social function of the press, which affords one of the best means of discovering and forming an opinion on the ideas and attitudes of political leaders. Meanwhile, freedom of political debate was defined as one of the very core notions of democratic society and entitled to priority status under the Convention. However, the Strasbourg arguments in this aspect were not relevant to case disputation regarding respecting the reputation of politicians, with the consequence of the appellant's conviction due to his inappropriate speech and some impolite words. Finally, the Court had to back the Austrian concept of legal discourse to distinguish the role of "truth facts" and "value judgment," the former of which could be demonstrated in a simple sense, whereas the latter not only was complicated but should be susceptible to proof. The decision in the case implies that the Strasbourg Court overturned the ruling made by the Austrian Criminal Court through the interpretation of Austrian law. Notably, the case showed that the Court actually highlights the essence of the freedom of expression in the Convention and its fundamental function in democratic society, and for this reason a free press has privileged status balanced with competing interests. A similar test formula can also be found in the case of Sunday Times, in which the Court held that the British injunction violated Article 10 of the ECHR through the reiteration of the essence of a free press and its basic function in democratic society, and instead left a wider margin of appreciation for deference to the domestic decision.

 

The case decisions mentioned above well mirror, though not completely, the Court's diverse way of applying the doctrine in different circumstances. The Strasbourg Court is clearly aware that it is not an ad hoc supranational institution whose decisions and evaluations can supersede ones made by domestic courts. The European Court of Human Rights assumes a subsidiary role in European human rights protection¹⁸, respecting Europe's tradition of pluralism and state sovereignty.¹⁹ However, the doctrine, by no means intended to be a vehicle of unprincipled deferentialism²⁰, is a valuable tool for interaction between national authorities and the Convention's enforcement mechanism.²¹ The Court admitted that the pluralistic political culture, social  development conditions as well as diverse moral and religious standards among contracting states render the domestic courts in a better position to evaluate factual circumstances arising in their member states.²² Thus, the Strasbourg Court permits Convention rights commonly to be limited by the common good, such as public morals, public emergencies, religious belief as well as abstract general interest.

 

In order to articulately clarify the language "margin of appreciation" appearing in Strasbourg judgments, Lord Letsas has divided the types of margin of appreciation into two categories: substantive and structural. The substantive concept usually refers to balances between competing interests. Individual rights can be justifiably restricted by external forces when individual rights conflict with a very large quantity of non-rights based on aggregated (collective external) preference under an ideal theory of political morality. In the context of the European Convention, substantive margin of appreciation links to two propositions. First, those measures taken by state authority in order to advance collective goals are justified in compliance with domestic law; and second, if Convention rights are interfered with by the collective good, such interference may not amount to a violation of Convention rights.²³ This concept of margin of appreciation is clearly embodied in Convention terms such as "exhibition" and "limitation," which are easily found in Articles 8‒11 and indicate that these Convention rights are not absolute but may be justifiably interfered with to protect "pressing social needs" or are "necessary in a democratic society."

 

The structural concept of margin of appreciation holds that the Court's power to review domestic decisions should be more limited than national power-holders who have competence to apply the convention in domestic cases. The Court, under the structural concept of margin of appreciation, will not substantively scrutinize domestic decisions. Although this might not be exclusive, the Court will defer to the State's decision only if Strasbourg judges are convinced that domestic judges are better placed to make decisions on some sensitive human rights litigation related to local culture, morals and traditions.²⁴ Letsas says this conceptual model is based on the distribution of power between the States and the CoE. Indeed, The subsidiary function of the Strasbourg regime regarding human rights protection constitutes supportive reasons for the structural concept of margin of appreciation.²⁵ The nature of the principle of subsidiarity in the Convention system does not merely mean that national authorities are the main actors responsible for securing rights under the Convention and adjudicating impugned cases under conditions wherein the individual has exhausted domestic remedies, but also highlights its respect for interpretations and implementation of the Convention by national authorities who have observed international documents in good faith.²⁶ Moreover, where there is no uniform consensus on whether something is regarded as a human right violation, the Court will give more deference to domestic courts whose decisions are based on the Convention than cases where decisions are based on a common consensus among CoE member states. The Court, on the other hand, defers to the particular conduct of contracting parties dealing with sensitive political and religious issues according to state circumstances unless the conduct is determined to exhibit "manifest unreasonableness."

 

 

The subsidiary nature of the structural margin of appreciation forms the dominant portion of Strasbourg's generous deference to national decisions. The Court provides a large autonomous margin to national authorities, thereby encouraging domestic authorities to take more account of Convention rules and caselaw as a source for their domestic decisions. In such circumstances, the Court prefers not to involve itself too much in domestic judgments, implying that the Strasbourg regime will generously defer to domestic decisions without substantive scrutiny by the Convention. The Strasbourg concept – "a large of margin of appreciation" – is the very synonym of "deference to domestic decision," unless the Court decides that national conduct or decisions are "manifestly unreasonable" in the "structural concept of margin of appreciation."

 

The case of Immobiliare Saffi²⁷ is a particular example in which the Strasbourg Court continued its customary approach, providing a wide margin of appreciation after rhetorically claiming to "[strike] a fair balance between the demands of general interests and the requirement for the protection of property rights enshrined in Article 1 of Protocol No. 1." Although the proportionality test was referred to in the judgment with the purpose of ascertaining the boundary between two competing interests, the Court generously claimed that it "respects the legislature's judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation." Another typical decision concerning the deprivation of property rights in order to protect the public interest occurred in the case of James and Others²⁸, where a wide margin of appreciation was given to legislative judgments unless the results were identified as "manifestly unreasonable." However, reasonableness tests actually occurring in some cases are no more than a tautology of unconditional reference to domestic decisions²⁹, while in other cases the reasonable test is mentioned without playing a substantive role in the Court's analysis.³⁰

 

In the context of Article 6 relating to fair trial, reasonableness tests applied by the Strasbourg Court have been a pervasive measure providing national authorities more flexibility in implementation of the European Convention. In the case of Benet³¹, Strasbourg generously gives state authority a wide margin of appreciation to engage in criminal investigation including seizure of the appellant company's assets, ruling that the state's judgment should be respected unless it is manifestly unreasonable. In line with the Court's previous thinking, the Strasbourg Court has focused its analysis specifically on finding whether the state's actions were "manifestly unreasonable." Even in some cases where domestic courts have little capacity to deliver judgments or remedies within a due period, Strasbourg might be sympathetic to domestic tribunals, not ruling that a breach of the Convention has occurred. However, the decisionsinsuch cases do not strictly rely on the structural sense of margin of appreciation, but are based on the fact that the Court lacks capacity to fulfill its positive obligation in such circumstances.

 

When cases concern the balance between Convention rights and State cultural and religious traditions, Strasbourg judges often defer to national decisions without considering a strict substantial balance between competing interests. The two contrasting rulings of Lautsi, respectively made by the Chamber and Grand Chamber, concerning whether the crucifix displayed in state school classrooms constitutes a violation of freedom of religion and freedom of education support my argument, in that the main focus of the Strasbourg Court should be on fulfilling its subsidiary mandate of maintaining proper distance from domestic affairs in aspects of cultural and religious disputes. In the beginning, the Chamber of the Second Section of the Strasbourg Court unanimously held that there had been a violation of the right to education of the appellant in the ruling of Lautsi I.³² After considering the substantive balance between individual rights and local traditional culture, the Court required Italian authorities to maintain their confessional neutrality in public education, that is, refrain from imposing "beliefs, even indirectly, in places where persons are dependent on it or in places where they are particular vulnerable." However, the historical significance of the crucifix to Italian identity was disregarded by the Court, whilethe crucifix itself was regarded as a "powerful external symbol" violating the negative freedom of religion. The Court stated that "the presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion." In addition, the crucifix in a state school conflicted with the "sufficiently serious and consistent" conviction of parents. Thus, the Court ruled that it was incompatible with the state's duty of impartiality and neutrality.

 

The judgment of Lautsi I gave rise to a storm of political controversy in Italy and the other European states.³³ In Italy, except for far left political parties, the Court met the unanimous condemnation both of the Berlusconi administration and an alliance of middle-leftist political parties.³⁴ Even the European Union Parliament became involved. The Italian government, together with several CoE member state governments, NGOs and the distinguished law professor Joseph Weiler, who came all the way from the U.S. to become involved in the proceeding, asked the Grand Chamber of the Strasbourg Court to rehear the case. They argued that the crucifix is a symbol both in a religious and cultural sense. It is wrong to view the State's duty of confessional neutrality as equal to liberal neutrality wherein Contracting States have the very positive obligation to eliminate all religious symbols in publicly financed institutions and organizations. Correspondingly, the Italian consiglio del stato (administrative court) argued that the crucifix itself was a symbol that may have various meanings and purposes depending on the diverse places where it is displayed. The crucifix is properly and exclusively a religious symbol in a place of worship, while in school it is a symbol of educating children with the values important to building civil society, and which underpin and inspire the Italian Constitution. In this sense, the symbol of the crucifix in public schools performs a highly symbolic educational function, irrespective of the religion professed by the pupils. It should be seen as a symbol capable of reflecting the remarkable sources of the civil values that define secularism in the State legal order.

 

The Italian government specifically criticized the Strasbourg Court for misinterpreting the concept of "neutrality" wherein, in the government's view, the State should refrain from promoting not only a particular religion but also atheism. According to the government, the decision made by the Chamber derived from the doctrine of "neutrality," which is actually based on "secularism," and the concept is no less problematic than proselytizing by the State. Italian delegates, in line with reasons given by the Consiglio del Stato, argued that the meaning of the crucifix hanging in state schools could hardly be perceived as a simple religious symbol, but also should be perceived as a cultural and identity-linking principle. In other words, it is a symbol of the principles and values that form the basis of democracy and Western civilization. The image of the "crucifix," although it might exert its "power" on students' daily life, is no more than a "passive symbol" whose impact on individuals is not equivalent to the impact of "active conduct." No one asserted that the content of teaching provided in Italy was influenced by the symbolic presence of the crucifix in the classroom. Italian delegates moreover asserted that it was improper for the appellant to claim that they felt suffering in an educational environment with a crucifix, since students in Italy receive education to help them develop a critical outlook on the question of religion, in a dispassionate atmosphere from which any form of proselytizing is excluded.

 

Regarding the lack of a common approach among the contracting states, the Italian delegates claimed that Strasbourg should have ruled that the State had a particularly wide margin of appreciation. The Italian requirement implied that the Strasbourg regime must adhere to its subsidiary role when scrutinizing the conventionality of domestic judicial decisions in relation to sensitive moral issues without a uniform solution among CoE member states. Simply put, the Italian government expected that the Strasbourg Court would generously defer to the domestic judicial decision in this sensitive case. The Grand Chamber of the Strasbourg Court accepted the advice proposed by the Italian delegates, thus replacing the previous decision holding that the Italian Government had breached the European Convention, with a decision providing de facto wide margin of appreciation to the State. In the final judgment, the Strasbourg Court confessed the fact that Europe is marked by diversity among its member states, particularly in the sphere of cultural and historical development. Although the Court stressed that the spirit of pluralism based on cultural differences cannot relieve a contracting state of its obligation to respect Convention rights and freedoms, it did not substantially assess whether the essence of the right to education or the right to religious and philosophical convictions were infringed by the presence of the crucifix in state schools. Rather, the Court announced that it had a duty to respect the contracting parties in educational matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination.

 

The Court's decision whether the crucifix could be displayed in the classroom, in principle, is a matter falling within the margin of appreciation of member states since there is no common European approach to this question. Theoretically, domestic decisions should be proportionally scrutinized in order to ensure that they do not overstep the scope of state obligation to the Convention or propose some alternatives to the presence of the crucifix. The Strasbourg Court adhered steadily to its subsidiary role of being tolerant of any domestic ruling only if the presence of the crucifix does not constitute indoctrination.

 

Meanwhile, similar case decisions can be found in judgments closely related to issues of cultural and social diversity in which a wide margin of appreciation is permitted to the States. In the seminal case of Stec and Others³⁵ concerning the different treatment of pensions on the ground of different gender, the Grand Chamber of the Strasbourg Court stood by the position of State policymakers, considering that national authorities, in principle, are better placed than international judges, on the basis of their direct knowledge of social needs, to appreciate what is in the public interest inthe social and economic spheres. The Court consequently allowed a wide margin of appreciation to State legislative policy unless such policy is determined to be "manifestly unreasonable." Similarly, the domestic results of balancing competing interests concerning the right to privacy and family life are generally respected by the Strasbourg Court whenever these disputes themselves are sensitive moral controversies in nature.³⁶ In the judgment of Evens³⁷, which concerns the obligation to obtain the father's consent for the preservation and implantation of fertilized eggs, the Grand Chamber of the Strasbourg Court ruled that the domestic decision did not interfere with the appellant's right to private life. The female, who was diagnosed with ovarian cancer, was offered a cycle of IVF treatment. Eleven eggs were produced and fertilized with her ex-husband's sperm; six embryos of which were placed in frozen storage. When the marriage broke up two years later, the woman's ex-husband immediately wrote to the clinic storage institution informing it to destroy the embryos. The woman was informed by the clinic institution that her fertilized eggs were to be destroyed unless her ex-husband changed his previous opinion, according to English domestic IVF legislation which prescribes that both parties must give their consent to IVF continuation – otherwise, the embryos would be destroyed. Although she challenged the clinic's decision, the British judges provided her only sympathy since fertilized embryos are not the exclusive product of female bodies, but belong to both the female and male. Consequently, the continuance of IVF treatment in the absence of the father's consent would diminish the father's role, thus deviating from the original purpose of the legislation and violating the principle of the rule of law.

 

The appellant submitted her case to the Strasbourg Court asserting that the domestic judicial decision and IVF legislation had infringed on her right to private life. She said that domestic IVF legislation de facto constitutes discrimination since no rules govern the appellant's future prospects of having a baby without the consent of a sperm donor. Moreover, the female appellant emotionally argued that her claim outweighed that of her ex-husband since females actually suffer and invest more emotional and physical pain and energy than males do. Furthermore, she claimed she should receive reasonably preferential status considering her situation of infertility. In order to persuade the judges to restrict the breadth of margin of appreciation to the State, several American and Israel judicial decisions on protecting women's choice after IVF treatment were cited to support the argument that a female's choice has exclusive preferential status if the original consent between the two parties breaks down.

 

Actually, the Grand Chamber of the Court knew that its ruling might depend on how it scrutinized the State decision, i.e., whether in a procedural or in a substantial way. The former approach would leave national authority wide marginal autonomy, whereas the latter approach might increase the chance of the State breaching the Convention in that the breadth of margin would be possibly restricted if the Court identified that an important particular facet of the individual's existence or identity was at stake.³⁸ The majority of judges noted that the question raised by the appellant touched on moral and ethical controversies related to IVF legislation where there was no uniform resolution among CoE member states. As a result, the Court in no way substantially scrutinized the domestic ruling by the State authorities in this highly controversial moral case through Strasbourg's balancing private and public interests, implying the Court's wide breadth of margin of appreciation to State legislation, and deference to the domestic court decision.

 

Since there is no clear European consensus on the sensitive issue of same-sex marriage, the Strasbourg Court has usually allowed States to have a wide margin of appreciation for dealing with cases concerning same-sex couples' rights within the Convention framework. In the case of Schalk & Kopf³⁹, the appellants' marriage application was refused by the Vienna Municipal Office because, according to Article 44 of the Civil Code, marriage can only be contracted by opposite-sex couples. In a domestic constitutional complaint, two same-sex couples alleged that the legal impossibility for them to marry resulted in a violation of their rights with respect to private and family life as well as the principle of non-discrimination. Considering that the Strasbourg Court has acknowledged that differences based on sexual orientation require particular respect from the State authority, the appellants argued that same-sex marriage should be officially recognized by State law. These two appellants submitted the domestic decision to the Strasbourg Court with an allegation of violation of Article 12 (right to marry) and Article 8 (right to private life) in conjunction with Article 14 (the principle of non-discrimination). They argued that the right to marry provided by the Convention did not imply that a man must only marry a woman or vice versa. The Court agreed that, froman isolated literal perspective, the wording in Article 12 had not excluded the possibility of marriage between same-sex couples. However, the concept of marriage at the time the Convention was promulgated in the 1950s was clearly understood in a traditional way as a union formed by opposite-sex couples. The Court recognized that the meaning of Article 12 relied not merely on textual literacy, but also heavily on Strasbourg case law due to the fact that it is interpreted as a "living instrument," such that the meaning and scope of Convention rights should keep pace with current development. Although theoretically the Strasbourg Court is free from being bound by its precedents, the Court still sought to find a previous decision from recent developmentsin case law as grounds for supporting the right to same-sex marriage within the Convention framework. The Goodwin decision, which was identified as the "closest" to the present case, hardly provided the Strasbourg Court any clear guidance because it concerns the rights to marriage of a transgender woman who was to marry a natural male. The decision in the Goodwin case thus was concerned with the marriage of partners who are of different genders, even though the "gender" in the context was formed, not by nature, but by surgical measures.

 

The appellants asked the court to look at the dynamic tendencies in the development of national and regional legislation regarding same-sex marriage. The Court then assessed the present case by comparing statutes among the contracting states as well as the Charter of Fundamental Rights of the European Unionto ascertain the existence of an emerging European consensus or not. The Court found that only six CoE States have legalized same-sex marriage, while 12 other CoE states provide legal recognition of the status of same-sex couples as a way of respecting their long-lasting private relationship. The Court thereby perceived that more CoE states have undergone major social changesin the institution of marriage since the Goodwin decision, but the number was still a minor portion of the total 48 states at the time. The comparative result was unable to persuade the Court to stand with the appellant's claim.

 

On the other hand, the Court noted that Article 9 of the EU Charter has deliberately dropped the definition of "marriage" narrowly between a "man and woman." The Commentary of the Charter has explicitly explained that the scope of the right to marriage in the EU Charter framework was broader than corresponding articles written in any other human right instruments. However, the interpretation of the Commentary by no means indicates that all EU Member States must legalize same-sex marriage. The Commentary, on the contrary, leaves the decision whether or not to allow same-sex marriage to the States. It states: "[I]t may be regarded that there is no obstacle to recognizing same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages."

 

According to the reasons mentioned above, the Court observed that marriage has deep-rooted cultural and social connotations that may greatly differ among the States. Reiterating its subsidiary role that the Court has no competence to replace domestic decisions with its own judgment, the majority of judges ruled that the Austrian authorities did not violate the obligation under Article 12 of the Convention.

 

As to the assessment whether refusal to grant same-sex couples the same rights as opposite-sex couples through national legislation has constituted infringement of the right to family according to the principle of non-discrimination, the Court clarified that the meaning of "family" in the context of the Convention covers not only marriage-based relationships, but also encompasses those "families" formed by de facto marriage where the parties were living together out of wedlock. The notion of "family" shaped by Strasbourg case law excludes a "family" composed of a homosexual couple whose relationship constitutes "private life" in the context of the Convention even where a long-term relationship with a cohabiting partner is at stake. The Court then observed that, despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, given the existence of little common ground between the Contracting States, this was an area in which the State enjoys a wide margin of appreciation.

 

However, in light of Directive 2004/38/EC, which clarified Article 2(2)b of the Convention, the definition of "family members" includes those homosexual couples registered based on legislation. Therefore, the Strasbourg Court perceived that it must be an artificial view to exclude homosexual couples living in a stable de facto relationship from the notion of "family members." As a result, this view implied that the facts of the current case fell within the notion of "private life" as well as "family life" within the meaning of Article 8. Consequently, Article 8 in conjunction with Article 14 were substantially examined by the Strasbourg Court.

 

Strasbourg case law has established a series of precedents under Article 14 where a difference in treatment of a person in relevant similar situations might be discriminatory if it has no objective or reasonable justification. According to Strasbourg jurisprudence, Contracting States breach the European Convention if the examined different treatment does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized. Correspondingly, the Strasbourg Court used the margin of appreciation to assess whether and to what extent the Court can treat similar situations differently. In this case, the Court determined two standards so as to identify the breadth of the margin of appreciation under the framework of Article 14 concerning the same-sex right to private life: (1) different treatment based on sexual orientation requires a particular reason by way of justification; (2) a wide margin of appreciation would be allowed to the State under the Convention when it comes to the general measures of economic or social strategy. Obviously, the two different measures summarized by the Court mirror the approaches commonly applied to ascertain the proper breadth of the margin of appreciation within the Convention framework.

 

The majority of Strasbourg judges seemed to choose not to address which standard is applicable to the present case. Rather, even when they noticed that the New Austrian Registered Partner Act maintains some substantial differencesin parental rights from those granted to opposite-sex couples, they ruled that as the appellant has not claimed that they are directly affected by the remaining restrictions concerning artificial insemination and adoption, it would go beyond the scope of the present application to examine whether these differences are justified. Actually, the fact that the Court backed domestic legislation concerning different treatment regarding the right to second-adoption between unmarried heterosexual partners and same-sex couples was a silent deference to the later decision on Gas and Dubois⁴⁰, where the Court finally ruled that the French refusal to grant a right to second-adoption to homosexual couples did not constitute a breach of the Convention because only 10 of 47 States of the CoE permitted this right to homosexual couples. In this sense, a wide margin of appreciation was reserved to the States who have autonomous power to make decisions on the domestic institution of second adoption without interference by the supranational court.

 

However, modern Strasbourg case law restricted the breadth of margin in its recent ruling in the case of X and Others⁴¹ in which the Court ruled that there was a violation of the Convention's Article 14 in conjunction with the Convention's Article 8. This was due to the different treatment of the appellant in comparison with unmarried opposite-sex couples where one partner wishes to adopt the other partner's child, as well as married opposite-sex couples where one partner wishes to adopt the spouse's child. Although the State court correctly held that there was no uniform institution among the European States regarding second adoption by same-sex couples, the Strasbourg Court did not choose to defer to the national decision because there were no convincing reasons given by the Austrian court to justify the exclusion of second-parent adoption to a same-sex couple. Noting that the Austrian legislature accepts that a child might grow up in a family headed by a same-sex couple and this is not detrimental to the child, the Court was confused why a homosexual family based on de facto "marriage" was given different treatment. Since the domestic court was not able to present particular convincing reasons giving more weight to the impugned institution over the principle of non-discrimination prescribed by Article 14, distinctions between unmarried heterosexual couples and unregistered same-sex couples regarding the institution of second-parent adoption were ruled discriminatory.

 

It is worthwhile to note the that the Strasbourg Court may still reserve a "wide margin of appreciation" to the States even though a European consensus has already formed among the Contracting States. In the case of A, B and C vs. Ireland⁴² concerning the balance between the rightsof unborn children and the right to abortion, the Strasbourg Court has held that even if it appears from national laws among CoE member states that Contracting Parties have resolved these conflicting rights and interests in favor of greater legal access to abortion, this consensus cannot be a decisive factor in the Court's examination of whether the impugned prohibition on abortion in Ireland for reasons of health and well-being struck a fair balance between conflicting rights, notwithstanding an evolutive interpretation of the Convention. Consequently, although the claimed breadth of margin of appreciation reserved to the States was not unlimited, but subjected to substantive scrutiny through the doctrine of proportionality, the Court simply favored the State's opinion presented by the Irish delegates, who had asserted that the legitimate purpose of restriction on abortion provided by national legislation was given effect by a democratic referendum, implying that Ireland would not accept any restriction by the supranational court on its democratic decision.

 

Apart from the aforementioned cases, the Strasbourg Court seems to generously defer to domestic decisions regarding interference in daily customsrelated to their distinct religious beliefs. In the Dahlab judgment⁴³, for instance, the Court did not balk at endorsing the Swiss Federal Court's reasoning that wearing an Islamic headscarf by a primary school teacher was banned on two grounds: (1) the requirement to wear a headscarf was imposed only on women as a precept derived from the Koran; (2) this is incompatible with gender equality and demands of tolerance and respect for others. Be that as it may, what matters most here is that the Court's approach is clearly geared toward autonomous pan-European standards.⁴⁴ The case decision indicates that, in the Strasbourg regime, external normative cultural rules should not be a legitimate reason for violating women's rights enshrined in the Convention.

 

 

The Strasbourg Court, acting as a transnational judicial defender of Convention rights, has adopted several substantive approaches to scrutinizing the conventionality of domestic judicial decisions. Despite the fact that Strasbourg judges substantively rely on various factors to identify the scope of contested rights in different cases, the Court usually deferred to State decisions in cases that satisfied the requirements of some relevant doctrines posed by the Strasbourg judges. Greer has summarized the factors adopted by the Strasbourg regime in order to identify the scope of margin in substantive measures: (1) essence of rights; (2) democracy; (3) commonality and evolutive interpretation; (4) proportionality; and (5) legality.⁴⁵ Arai-Takahashi further argues that the principle of proportionality is inherent in evaluating the rights of individuals and the public interest. The Strasbourg Court sometimes applies a narrow and more specific meaning to specific proportionality, asserting that "a proportionate balance must be struck between the means employed and the aim pursued in order not to overburden the rights of individuals in return for social goods."⁴⁶ Admittedly, Arai-Takahashi has perceived that the doctrine of proportionality makes it possible to limit the scope of legitimacy of domestic decisions involving interference of conventional rights.⁴⁷ These substantive tests of balancing competing interests or any aspects, though not necessarily causing the State to breach the Convention, might very possibly limit the permitted scope of the margin of appreciation, which allows only "a certain margin of appreciation" or "a narrow margin of appreciation" to the states. Lord Letsas summarized the substantive formula test regarding the rationality of the breadth of margin of appreciation in the framework from Article 8 to Article 11 using four steps: (1) whether there is an interference with a Convention freedom; (2) whether the interference is prescribed by law; (3) whether the purpose of the interference falls within the list of legitimate aims mentioned in the accommodation clauses; (4) whether the interference is proportionate or "necessary" in a democratic society or whether there is a "pressing social need" for it.⁴⁸ Meanwhile, this proposed test formula may extend its applicability to other Convention provisions. Despite the fact that no normative accommodations have been introduced into other Convention provisions, the Court still defers to the state's derogation considering that some rights are not exclusive. In the following subsection, I will examine the roles of diverse substantive factors on identification of the breadth of margin of appreciation.

 

 

The "doctrine of essence of rights" is a typical German concept meaning that (1) every right hasits particular essence; (2) where it's necessary to strike a balance between competing rights, the core of neither right should be undermined. This theory in the context of the Convention has already expanded to a new meaning: that interpretation should be rational, namely, no ridiculous or absurd consequences are acceptable. Greer called this theory "effect protection," stating that "the overriding function of the Convention is the effective protection of human rights rather than the enforcement of mutual obligations between the states. Its provision should not be interpreted restrictively in deference to national sovereignty."⁴⁹

 

In the aforementioned Lingens case⁵⁰, it was alleged that the appellant had published a political article that constituted private defamation of Mr. Kreisky, an Austrian chancellor. The Austrian regional court ruled that the conviction was indisputable based on Article 111 of the Austrian Criminal Code. Moreover, the Austrian court held that the goal of the author was to target the reputation of the victim. The Court, in this case, had to primarily strike down the fair balance between freedom of expression and the right to reputation acceptable in European "democratic society." The doctrine of the "essence of rights," adopted by the Strasbourg judges, influenced the case result, by influencing the Court's interpretation of the role of freedom of expression in a democratic society. Freedom of expression, argued the Court, constitutes one of the "essential" foundations of a democratic society and one of the "basic" conditions for its progress and for each individual's self-fulfillment. The scope of "information" and "ideas" protected by the EU Convention is not merely confined to "those favorably received or regarded as inoffensive or as a matter of indifference," but also includes those that offend, shock and disturb, all of which constitute the core of the European democratic spirit: pluralism, tolerance and broadness. In order to highlight the essential function of freedom of expression in a democratic society, the Court further argued that freedom of the press affords the public one of the best means of discovering and forming an opinion about the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of democratic society, which prevails throughout the Convention.

 

In addition to cases concerning the range of rights from Article 8 to Article 11, the "essence of rights" test can often be found in some litigation regarding the Convention's political rights. In the decision on Mathieu-Mohin and Clerfayt⁵¹, the Court articulately stated that the State has a wide margin of appreciation in designing electoral institutions, including setting candidate qualifications on the condition that they "do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness . . . " In the Aziz judgment⁵², the Strasbourg Court supported the legitimacy of the Cyprus authorities in depriving a citizen of North Cyprus the right to be a legal elector in the choice of legislators. Given the fact that the irregular situation in Cyprus followed by Turkish military occupation in North Cyprus has continued more than three decades, there is a manifest lack of legislative resolution of the ensuing problems. Thus, the very essence of rights was not impaired in this case. Similarly, in the Hirst ruling⁵³ concerning the disenfranchisement of the right to vote of a convicted prisoner, dissenting judges referred to the deference to the British court decision because the UK legislation, as the majority agreed, did not impair the very essence of the right to vote, nor did it undermine the standard of effective protection.

 

This test formula is frequently applied to scrutinize Article 6 (fair trial). Starting with the Philis judgment⁵⁴, the Strasbourg Court has ruled, in a series of cases regarding the right to trial, that limitation of these rights must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence is impaired. The legal aid system has a special role in safeguarding the pan-European order of fair trials, embodied in Article 6, which requires that the domestic system established by domestic legislation must offer individuals substantial guarantees to protect from arbitrariness. In these rulings, the Strasbourg Court has usually cited the decision made in Aerts⁵⁵ to remind contracting states that domestic legal aid counsel would impair the very essence of the right to tribunal if it failed to satisfy the requirement of the appellant during the period of civil litigation. In addition to this, the Court held that the authorities' stance of holding the appellant responsible for the initiation of legal proceedings regarding an enforceable decision in his favor, coupled with disregard for his financial situation, constituted an excessive burden and restricted his right of access to a court to the extent of impairing the very essence of that right.⁵⁶

 

 

From Article 8 to Article 11, the Convention requires of contracting parties that fundamental rights falling within this scope should be restricted by law as well as must be necessary in a democratic society. Some people have worried that the two concepts cannot coexist, since the concept of "democracy" is usually defined as a form of legitimacy rooted in the general will of the people or normative power based on the choice of the majority, while rights, to some extent, imply freedom from external interference. Dworkin claims that rights are the trump cards that take precedence over every collective good as well as highly public common morals, whereas Raz suggests that although the term "right" signifies a particular important interest worthy of strong institutional protection, this does not itself justify prioritizing it over democratic consideration. However, the Strasbourg Court has never contributed anything useful to this theoretical problem. Mark's early research seems to provide us some guidance in understanding the meaning of "democratic society" in the context of the Convention. In some early Strasbourg jurisprudence, the term was applied in stark contrast to "totalitarianism," and later the doctrine was contrasted with "absence of adequate safeguards against the arbitrary exercise of power even by a more benign welfare state."⁵⁷ According to Greer, the meaning of "democracy" is closely related to the principles of "legality," "rule of law" and "procedural fairness."⁵⁸ The principle of "democracy" then was expanded to the notions of "separation of power" and "political accountability."⁵⁹

 

In the ruling on United Communist Party of Turkey⁶⁰, the Strasbourg Court described democracy as "appearing to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it." There is no doubt, even today, that a series of European democratic features have been proposed by the Court in its case law systems, by which the Court has repeated its previous interpretation that "there can be no democracy without pluralism," with the purpose of defending the fact that the multiparty system has the essential function of maintaining the democratic system. Moreover, the Court clearly stated that democracy, in the European context, must satisfy basic requirements, including universal suffrage, political pluralism as well as the freedom to take part in politics. The Court thereby encouraged the Turkish authorities to solve the political problem with democratic solutions "through dialogue, without violent discourse, even when they are irksome," rather than banning all the political activity of the United Communist Party by force.

 

In the ruling on the Young, James and Webster case⁶¹, the Court clarified that "pluralism, broadness and tolerance are the hallmarks of 'democratic society'." The Court noted that rule by the majority cannot always be regarded as the whole meaning of the term "democracy": a balance must be achieved that ensures the fair and proper treatment of minorities and avoids any abuse of dominant positions.

 

However, the Strasbourg Court has widely connected human rights with the characteristics of democratic society in Strasbourg case law besides cases concerning the rights embodied in Article 8 to Article 11. In a case concerning freedom from state indoctrination in education, the Court ruled that the State must take care that information and knowledge included in the curriculum are conveyed in an objective, critical and pluralistic manner, and the State is forbidden to pursue an aim of indoctrination that might be considered disrespectful of parents' religious and philosophical convictions. These reasons, argued the Court, reflect democratic ideals and values.⁶² The Court, in the Winterwerp ruling⁶³, seems to regulate the baseline of "detention" in a democratic society, stating that "in a democratic society subscribing to the rule of law, no detention that is arbitrary can ever be lawful." In cases regarding the right to liberty, the Court has generally stated the importance of "the right to liberty" in a democratic society within the European Convention.⁶⁴

 

 

The doctrine of proportionality, widely seen as the fundamental principle of modern constitutional jurisprudence, is a very ancient notion. The Code of Hammurabi, a Babylonian law code dating from about 1722 BC, incorporated the principle of "an eye for an eye, a tooth for a tooth." The Magna Carta and the 1689 English Bill of Rights also embodied the concept of "proportional punishment" under which punishment must be proportional to the crime. One English judge explained this principle with the plain English words: "You cannot crack a nut with a hammer, if a crack would do that."⁶⁵

 

The modern notion of proportionality originates from Prussian administrative law at the end of the 19th century. In the case of Kreuzberg, the Prussian police invoked provisions that empowered them to adopt such measures "as necessary for the maintenance of public order." The Prussian Court held that in order to meet the principle of necessity, the adopted measure must not exceed in intensity what was required by the pursued objectives. The principle of necessity then evolved into a proportionality principle, having become a constitutional principle binding on the legislature. Then the Federal Constitutional Court of Germany developed this doctrine to test the reasonableness and justification of balancing competing interests or individuals rights and the collective interest.⁶⁶ The German doctrine of proportionality later became a successful global legal institution accepted by many states as well as by supranational tribunals. The German doctrine of proportionality generally comprises three subprinciples: (1) suitability: the measure adopted must be suitable to achieve the purpose desired by lawmakers and administrators, that is, judges must verify whether the means adopted by legislators or administrators are capable of achieving the objective purpose; (2) necessity: the measure adopted by the legislators or administrators should be, among the measures capable of achieving the effective ends, the least restrictive of fundamental rights; and (3) proportionality stricto sensu: once the courts have affirmed that measures are in compliance with the first and second standards, judges should further test whether the measures are reasonable in a strict sense. Viewing the doctrine and existing jurisprudence, the Court should scrutinize decisions, state conduct and legislative rules based on the balance between advantage and disadvantage. The outcome of the "balance" must be proportional, namely, the application of a given instrument, or the means used to achieve planned ends or objectives should not be unreasonable in their reciprocal relationships.

 

The notion of proportionality has become an organic part of Strasbourg jurisprudence since the seminal case Belgian Linguistics⁶⁷ introduced the principle of proportionality into the European Convention on Human Rights. In the ruling on the Soering case⁶⁸, the Strasbourg Court explicitly stated that "inherent in the whole of the European Convention on Human Rights is a search for the fair balance between the demands of the general interests of the community and requirements of the protection of individuals rights." The statement in the Soering case is only one example, while the Court has "consistent[ly] held that the principle of proportionality is inherent in evaluating the rights of individual persons and general interest of public society."⁶⁹

 

Unlike those domestic constitutional courts or administrative courts that have the competence to substantially test whether the chosen measures are in compliance with the doctrine of proportionality, the judges in the Strasbourg regime, given its subsidiary role in protecting human rights and always lacking local knowledge, are reluctant to be involved in adjudication of disputes concerning local morals, as well as those concerning national policies, unless the interference brought by the domestic decisions or acts undermine core Convention rights or are "manifestly unreasonable." Although the term "proportionality" appears quite often in this type of ruling, it serves as "a mere gesture" of case law. The reference is not necessarily accompanied by a prudent assessment of the proportional effects of interference on individuals. The high frequency of deference to national decisions reflects the Strasbourg Court's willingness to recognize the overriding importance of the legitimate aims and the margin of appreciation pleaded by domestic authorities. The nature of deference without critical assessment is the same as Letsas's aforementioned term "structural concept" that directs the Court to leavea wide margin of appreciation to Member states.

 

The substantive proportional test is founded on the Court's understanding of the legal facts and the burden of proof imposed on the States. Strasbourg will limit the scope of the margin pleaded by the State on the condition that the doctrine of proportionality is intensely applied. The possibilities of breaching the Convention consequently increase.

 

The effectiveness test sometimes is straightforward since the aim pursued can be easily identified. For instance, the Strasbourg Court, in the Plon⁷⁰ ruling, described the unreasonableness of the French prohibition on publication of a book concerning the personal health and private life of the late President Mitterrand because this measure was simply ineffective given the fact that this information in the meantime had been published on the Internet. However, the effectiveness (suitability) test based on the means-ends approach is insufficient for ascertaining the breadth of margin reserved for the State within the Convention framework, particularly in complicated and hard cases where individual measures, involving interference with rights, cannot prevent the occurrence of unexpected events. Various domestic measures concerning anti-terrorism, simultaneously interfering with individual rights, would be impugned by the Strasbourg Court. For instance, the requirement to remove one's headgear at an airport security checkpoint interferes with freedom of religion, whereas the measure aims at guaranteeing the security of air travel. The measure should be accepted only if it is proved to be effective. How to define effectiveness in this case is mainly concerned with the next step. Obviously, it is ridiculous to hold that the requirement to remove headgear is fully effective in preventing terrorists from bombing airplanes. After all, there are many ways for professional terrorists to carry bombs and weapons on board other than hiding them under scarfs or hats. On the other hand, most measures taken by national authorities can hardly be considered completely inappropriate or ineffective in achieving aims pursued by the State. We usually face the case where each domestic measure is only one constituent part contributing to thedesired aim. In this circumstance, a deferential test would be applied if the Court has difficulty evaluating the socioeconomic or factual problems, or any particular reasons for intensifying judicial review⁷¹, which implies that the State enjoys a large breadth of margin of appreciation, when the Court is convinced that the measures are partly effective or not completely ineffective.

 

The "necessity test" is a written Convention rule embodied explicitly in provisions from Article 8 to Article 11, articulately stating that interference with fundamental rights should be limited to "necessity in a democratic society." However, given the fact that the Court has noted, in the ruling on Handyside, that this term is semantically different from "indispensable" ("absolute necessary," "strictly necessary" or "to the extent strictly required by the exigencies of the situation"), neither has it the flexibility of such expressions as "admissible," "ordinary," "useful," "reasonable" or "desirable" and the State authorities make the initial assessment of the reality of society's pressing need implied by the notion of "necessity." Given Strasbourg jurisprudence, the States have the burden of proving that social needs are pressing and outweigh individual interests.

 

Gerard has criticized Strasbourg's "necessity test" as it is often applied in a general but vague way⁷² such that the test formula might not offer clear, predictable guidance to Member States and appellant individuals. Rather than superficially deferring to domestic decisions, the Strasbourg Court also has to make its decisions through analysis or by balancing discretion if the evidence or reasons submitted by the State cannot substantively convince the Court that interference with Convention rights is the necessary choice for satisfying social needs or other more important interests.

 

The Court's ruling in the Daróczy case⁷³, which concerned a State government that did not permit a woman to use her wrongly registered name, showed that the "necessity test" has been generally applied where the Court needed to make evaluative judgments of usefulness or reasonableness of instruments or domestic decisions. The Court held that the government did not put forward any convincing evidence showing that the system of State registries or the rights of the appellant's late husband were at risk. The restriction imposed on the appellant was therefore unacceptably rigid and completely disregarded her interests in that she was forced to alter a name that she had used for more than 50 years and which, beyond its relevance in self-identification and self-determination as mentioned above, also gave a strong personal link to her husband. The Court consequently ruled that it was unnecessary to change the appellant's name back to her original name. Indeed, the "necessity test" in this case was close to a balancing test, in which the court weighed the interests of both the correctness of the official register and the consequences for the appellant. Similarly, in the Observer and Guardian case⁷⁴ concerning an injunction on republishing any information or part of a chapter written in an already published book that revealed an illegal and secret scandal of the British intelligence agency, the Court ruled that restrictions imposed by the British House of Lords were no longer "necessary in a democratic society" in that not only the information had been published, but the continuation of restrictions on newspapers publishing stories well-known around the world actually interfered with the appellant's rights absent of legitimate aims.

 

Viewing the generalness and vagueness of the "necessity test," some scholars propose that a "less intrusive test" model might serve as a qualified and effective alternative approach⁷⁵ in light of its certainty in terms of judicial application. Indeed, the Strasbourg Court at times requires States to adopt measures that are the least burdensome to persons' rights but are equally capable of achieving some legitimate aims. The Court should factually and empirically assess possible alternatives, then choose the most effective and least harmful among them. Actually, the Strasbourg Court has imported this approach in some rare cases. For instance, in the case of Ürper⁷⁶, concerning the complete prohibition on publication of a newspaper that published some articles supporting the activities of the Kurdish independence movement, the Court explicitly ruled that some less draconian measures should be envisaged by the Turkish authorities, such as the confiscation of particular issues of the newspaper or the restriction of the publication of specific articles. Similarly, the Court, in the ruling on Glor⁷⁷, questioned whether other measures were available that would achieve the same aim but would not undermine rights as much as the chosen measure. Obviously, the least intrusive test, which is not based on general and normative notions of pertinence, is concrete and demonstrable to an equally effective measure. Even Schlink asserted that "from the perspective of the need for clear, objective and fact-based judicial reasoning, the application of such a least intrusive means test may be preferred over the Court's general test."

 

However, the aims of the "necessity test" and the "least intrusive test" do not overlap all the time. The former approach mainly focuses on the examination of reasonableness and the usefulness of measures used by the State authority directly interfering with Convention rights with the goal of balancing competing interests, while the "least intrusive test" requires that the Court find an alternative solution that can achieve the goal as well as be the least harmful. Apart from that, the court has to face some technical problems in defining the theoretical and practical meanings entailed in this test model, including the methodology for determining what is "equally effective" and the meaning of "least intrusive."

 

In most cases where only a narrow or certain margin is allowed to the States, the Court substantively examines whether or not the balance struck by the national authority is reasonable within the European Convention framework. The Strasbourg Court has the obligation to guarantee a proportional outcome through a rational balance between advantages and disadvantages brought about by domestic interference. Although very few works refer to these tests, the Court must conduct a thorough and careful analysis of cases in this field. For instance, the Court permits a very narrow margin of appreciation to the States in limiting freedom of the press when communicating ideas and information of public interest in the Orban and Others⁷⁸ ruling. The appellant's company published a book entitled "Services Spéciaux Algérie 1955‒1957," in which the author, General Aussaresses, described pervasive torture and executions during the Algerian civil war. The inside cover described the author as "une légende vivante." A local Parisian criminal summoned the publisher and author in 2001. They were found guilty in 2002 and the Court imposed a fine on each of them. The Court of Appeal dismissed the requirement by referring to a certain extract from the book where the author's words seemed to persuade readers of the legitimacy and inevitability of torture and summaries of the executions carried out during the war. He did not show any regret about his past. Meanwhile, the publisher had not sought to distance himself from the event, but he, on the contrary, had glorified the General as "une légende vivante" and referred to his mission as the "mission plus difficile de toutes."

 

The Strasbourg Court reiterated a principle based on previous case law that restriction on freedom of the press must be in compliance with what is "necessary in democratic society." The adjective "necessary," provided in Article 10(2), implies "pressing social needs." In this sense, the contracting party only enjoys a certain margin of appreciation in judging the scope of "pressing needs." The concrete breadth of margin depends on "varie en fonction des circonstances de chaque espèce" on the one hand; on the other hand, the Strasbourg Court has the full competence to decide whether or not the domestic decision or conduct over steps the margin of appreciation and to decide whether or not the "restriction" is proportional to the corresponding provision. Furthermore, the Strasbourg Court has particular responsibility to scrutinize the punishment set by the domestic court as "proportionnée" or not in general. In addition, the Court should test whether the aims, posed by the national authority, may be justified as "pertinent et suffissant."

 

In order to substantively identify the breadth of margin of appreciation, the Court started by reviewing the content and summarizing the aims of the book in question. It held that the author's aim to persuade readers of the legitimacy and inevitability of torture and summary executions carried out during the War was not decisive for the assessment of the facts at issue related to the Convention's Article 10. The publication of witness accounts obviously formed part of a debate on a matter of public concern, that is, the singular importance of collective memory. In his account, the General defended one spectrum of the debate: Although it seemed cruel and anti-modern to orthodox civilization, the practice not only existed but also had the blessing of French authorities at the time. The inside cover written by the publisher mirrored the simple fact that it agreed with the author's opinion. In this view, it was not justifiable for the French Court to criminalize the publisher for not keeping a far distance from the author's viewpoint. The Court also observed that, although the author's statement had not lost its capacity to bring back memories of past suffering, the lapse in time meant that it was not appropriate to judge the statement with the same degree of severity as might have been justified 10 or 20 years earlier. Thus, the Court narrowed the breadth of margin of appreciation reserved for the State through the intense application of the margin of appreciation.

 

A similar decision appears in the ruling Société de Conception de Presse et d'Edition et Ponson.⁷⁹ The Court identified a narrow margin of appreciation and provided that "the Court will accordingly proceed to a careful examination of the proportionality of the measure at issue to the aim pursued." Moreover, words like "a careful scrutiny" or "very weighty reason" imply the Court's preference for a strictly proportional approach in which the breadth of margin would be confined to a very certain scope or signal that the State enjoys no margin at all.

 

 

The scope and meaning of Convention rights developed dynamically with the development of human rights legislation and other regional or international human rights treaties. The idea that the Convention is a "living instrument" indicates that the interpretation of Convention rights should take into account the standards common or shared amongst contracting states.⁸⁰ This implies that the States should not enjoy any margin of appreciation.

 

The Court first acknowledged the idea of "living instrument" in the judgment of Tyrer⁸¹ where the Court ruled that judicial corporal punishment of juveniles on the Isle of Man amounted to degrading punishment within the meaning of Article 3 of the Convention. The attorney-general of the Isle of Man, striving for a margin of appreciation, put forward the submission with the argument: Judicial corporal punishment cannot be considered degrading because it did not outrage public opinion in the Isle of Man. The Court rejected the argument saying public acceptance cannot be decisively used to justify whether or not a punishment is degrading. In contrast, due to the fact that the punishment had been abolished in the rest of the United Kingdom and was not found in the other CoE member states, the Court added: "[T]he Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case before it, the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member states of the Council of Europe in this field."

 

The appellants in Marckx⁸², an unmarried woman and a child born out of wedlock, complained that Belgian legislation had violated their rights to family life under Article 8 and discriminated against them contrary to Article 14. Due to the fact that Belgian legislation did not adopt the maxim "mater semper certa est," Belgian authorities denied the maternal affiliation between a child born out of wedlock and its biological mother at the time of birth. However, the Court noted that several international treaties had embodied this maxim, while the great majority of CoE member states had evolved and were continuing to evolve, in company with the relevant international instruments, towards full juridical recognition of the maxim "mater semper certa est." Although, at that time, only four contracting states had ratified the international treaty on the Legal Status of Children Born out of Wedlock, the state could not refuse the role of international treaties as a relevant instrument for the evaluation of the Court, since the relevant international treaties were in force and there was no reason to attribute the current small number of contracting states to a refusal to admit equality between "legitimate" or "illegitimate" children on the point under consideration. Moreover, the relevant international treaties denoted that there was a clear common measure shared by civilized states.

 

Similarly, the Court decided that penalization of homosexuality in Northern Island violated the right to respect for private life guaranteed by Article 8(1) in the judgment of Dudgeon.⁸³ Irish authorities asserted that Irish society was conservative on religious matters and there was a genuine conviction, shared by a large number of people and institutional actors, that decriminalizing homosexuality would seriously damage the moral fabric of society. The Court assessed the State's argument from the perspective of the dynamic "moral climate" of Northern Ireland, but it stated that: "[A]s compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behavior to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of criminal law should be applied." Considering little enforcement of the criminal prohibition in those years and little evidence submitted by Irish authorities showing that decriminalization of homosexuality would be injurious to moral standards in Northern Ireland, the Court finally decided that the moral climate in Northern Ireland did not amount to a pressing social need, capable of outweighing the negative effect that the prohibition had on the life of homosexuals.

 

The Strasbourg Court has relied more on the "living instrument" concept for developing Strasbourg case law as well as changing its precedents in the last 20 years. In order to highlight the "living" feature, the Court not only seeks to find consensus among CoE member states, but also highly regards UN and regional human rights documents and relevant case law as authoritative, relevant sources for interpreting the Convention. At times, it has even favored the appellant's position in the name of "a continuing international trend."⁸⁴

 

In the case of Goodwin⁸⁵, the Court reversed its previous decision in the absence of an actual consensus among the contracting parties. The appellant complained that UK authorities had failed in their positive obligation to respect her rights to private life and the right to marry because domestic law did not allow transgender persons to register the reassigned gender, which meant that her registration could not reflect gender change. The Court did not find a violation after it reviewed previous Strasbourg case law. Then it inquired again whether there was "any evolving convergence as to the standards to be achieved," but did not discern any evidence of that in Europe. Finally, the Court, inspired by Australia and New Zealand's liberal views, decided to attach more importance to "clear and uncontested evidence of a continuing international trend in favor not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals." The Court spent little time justifying the application of the entirely new standard it applied. Since then, it has not repeated the phrase "continuing international trend" when articulating any type of European Consensus. However, the phrase "emerging consensus" seems to indicate that trends in a particular direction will suffice as evidence of consensus, and comparable parameters that are chosen are usually from non-contracting states.⁸⁶

 

In the new century, the Strasbourg Court has regarded international human rights treaties and the EU legal system as the two most important relevant legal sources reflecting common values. The Grand Chamber of the Strasbourg Court found a violation of Article 11 of the ECHR in its decision on Demir and Baykara.⁸⁷ Turkish authorities refused to recognized the legal personhood of a trade union formed by municipal civil servants and annulled the collective agreement entered into by the trade union. The Turkish court held that the regulation on the right of assembly of public servants should have been stipulated by an ad hoc act. Due to the absence of this ad hoc act and since Turkey is not a member state of the Convention of International Labor Organizations, the Turkish court would not favor the claim of the public servants. The Strasbourg Court's reasoning noted that "it has never considered the provisions of the Convention as the sole frame of reference for the interpretation of the rights and freedoms therein." It also said that "in defining the meaning of terms and notions in the text of the Convention, it must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs and the practice of European States reflecting their common values."

 

The Court's decision in Bayatyan⁸⁸ followed the Court's reasoning above. The appellant questioned whether conscientious objection to military service should be recognized as a right. The Chamber followed well established case law of the European Commission on Human Rights concerning Article 9 (the right to freedom of thought, conscience and religion) and Article 4(3)b (on the prohibition of slavery and forced labor), but failed to prove that it encompassed a right to conscientious objection. However, the Grand Chamber observed that since 1993 the United Nations Commission on Human Rights had considered that the International Covenant on Civil and Political Rights did give rise to such a right; that in fact an overwhelming majority of CoE states had already recognized this right, thus representing a general consensus in Europe. Moreover, there was one further consensus due to the fact that the right was explicitly recognized by the EU Charter.

 

Indeed, it is not surprising to see that the Strasbourg Court in many cases has referred to provisions and case law of the Strasbourg regime as persuasive evidence to prove the existence of a European consensus. Even in some cases, particularly those in EU member states, the Court may never consider the concrete breadth of margin of appreciation in individuals cases, but will order them to observe the primary effect of Strasbourg judgments or directives.⁸⁹

 

 

The margin of appreciation is a "mystery house" where scholars can hardly capture the whole definition of the concept. Even some scholars doubt the semantic correctness of the term "margin of appreciation." For instance, Greer argues that the scope and meaning of rights is not shaped by the formal Convention, but defined by the interpretation of the Strasbourg judges.⁹⁰ In this sense, Greer states that there is no room for deference on the definition of rights, but there is room "on whether or not the disputed conduct is compatible with [rights] thus defined."⁹¹ Actually, many commentators have lost themselves when they become too focused on the definition of "margin of appreciation." Sometimes their curiosity even brings them to touch on the field of legal philosophy concerning rights theory: interest based rights theory vs. rights as trumps. This approach might be useful, but we would be confused in many cases since some commentators, such as Letsas and Greer, believe that rights are regarded as "weak trumps" in the Convention framework. Even Andrew Legg has framed a spectrum of the Convention according to the nature of rights, arranging them from strong to weak for clarification of their different weights in the balance among competing interests.

 

However, the Strasbourg Court no longer confines itself to the original meaning of deference to State derogation from Convention rights in the circumstance of State emergency. Its meaning has expanded into many areas ranging from balancing competing individual rights, rights and collective goods, the suitability of means to pursued effects and the capacity of state bodies to perform their positive obligations. Given the inflation of "margin of appreciation" referred to by the Court, some authors commonly agree upon a "thin" notion of the concept—"room for manoeuvre."⁹² According to this concept, taking into account particular values and other distinct factors woven into the fabric of local laws and practice, national authoritiesmay autonomously assess appropriate standards for Convention rights.

 

Lord Letsas and many commentators have correctly argued that the Strasbourg system comprises two concepts of margin of appreciation: structural and substantive. In the structural sense, when the subsidiary Strasbourg Court scrutinizes a case, its decision should not undermine the State's culture, local morals or the State's democratic tradition. The States, correspondingly, take responsibility for provingtheir claim. Generally, the Court defers to domestic decisions without substantively scrutinizing these cases given domestic courts are better placed than an international court to make decisions regarding domestic affairs and the Court has no way to make a fair balance in the absence of evidence and local knowledge. Accordingly, the structural concept of "margin of appreciation," to a great extent, is synonymous with "deference" or "a wide margin of appreciation" unless the domestic decision is "manifestly unreasonable."

 

The substantive concept of "margin of appreciation," in my sense, means the Court will scrutinize impugned cases prudently and carefully using some substantive factors, including the essence (core) of rights, features of democracy, the principle of proportionality as well as evolutive interpretation, in order to identify the breadth of margin preserved to the States. The test formula of "essence of rights" is the baseline of the Court's assessment on which the effectiveness of the Strasbourg Court will depend. This test approach is compatible with the "rights as trumps" theory by which the core of rights should not be undermined, even when in conflict with the public interest.

 

The doctrine of proportionality generally takes the inherently fundamental role in the margin of appreciation. President Spielmann identified the proportionality principle as "probably the most important—and even decisive—factor" that impacts the margin of appreciation.⁹³ Judge Mastcher described the principle as the "corrective and restrictive" margin of appreciation.⁹⁴ Obviously, Mastcher's argument is compatible with substantive margin of appreciation. In this process, the Court considers cause and effect relationships, proportional means and effects, the concrete balance between competing interests and proportional punishments. If the principle of proportionality is intensely applied, the Court will narrow the scope of margin reserved to the State. However, the strict application of this principle primarily requires the Court to possess relatively complete evidence or understanding of local knowledge, otherwise the Court would defer to the State decision. This principle cannot be discussed separately from the other two factors: democracy and evolutive interpretation (living instruments), since the Convention was defined as a "living instrument." Common consensus or emerging consensus provides the Court reasons to substantively restrict the scope of margin of appreciation.

 

We should note that the boundary between the structural and substantive conceptual margin of appreciation is not always separated. In the circumstance where collective goods undermine core Convention rights, the Court hardly defers to domestic decisions at the cost of protecting human rights effectively. On the contrary, the Court has no way to proceed further with an effective substantial analysis, but generously defers to the State decision if the means and ends relationship is complicated and when the Court is aware that the domestic court would be better placed than the international court in these decisions.

 

* FAN Jizeng ( 范继增 ), Ph.D candidate at the Sant' Anna Advanced School in Pisa (Scuola Superiore di Sant' Anna), with a specialization in Comparative Constitutional Law and European Human Rights Law.

 

1. Giuseppe Martinico & Oreste Pollicino, The Interaction Between European Legal System (2012), at 147‒148.

 

2. Perez, Conflicts of Rights in the European Union (2009), at 28. Also see Alec Stone Sweet & Helen Keller, "The Reception of the ECHR in National Legal Order," in H. Keller and A. Stone eds., A Europe of Rights: The Impact of ECHR on National Legal Systems, 2008, Oxford, at 20‒21. The authors refer generally to the different status of the ECHR within dualis and monist legal orders and judicial power related to national legislation and administration as well as its judicial role within different federalist states within diverse attributions of judicial power. Also, see Giuseppe Martinico, "National Judges and Supranational laws: Goals and Structure of Research," in G. Martinico and O. Pollicino, The National Judicial Treatment of the ECHR and EU Laws: A Comparative Constitutional Perspective, Europa Law Publishing, 2010, at 12‒14. Martinico has summarized the status of ECHR in the domestic legal order as follows: (a) There are some constitutions characterized by the acknowledgment of a constitutional rank given to the ECHR in the domestic legal order: For example, Austria and the Netherlands (essentially monist states); (b) Some states are categorized by the acknowledgment of a super-legislative ranking in the domestic legal order: For example, France and Belgium, Spain and Portugal; (c) Other States are characterized by the acknowledgment of a legislative ranking in the domestic legal order: Scandinavian countries, the United Kingdom; (d) Some domestic legal orders acknowledge the position of the ECHR as a "norme interposto" in Italian constitutional adjudication (see the Italian case n.348 and 349/2007) although in these judgments the Italian Constitutional Court also stressed the need for the ECHR to be consistent with the constitution as such. This result was reached by the Italian Corte Costituzionale after reasoning aimed at distinguishing the ECHR from other international treaties; (e) In other countries (for instance Germany), the constitutional judiciary has identified some specific constitutional counter limit against the penetration of the ECHR. This seems to imply a supra-legislative nature is not inferable from the analysis of the German Constitution. (f) In other countries, the ECHR plays the role of shadow constitution, for instance in Belgium and France. The case law of Conseil Constitutionnel (DC 88‒1082) has given direct application to the ECHR by integrating it into the "bloc de constitutionalite," conceiving the Convention as a further legal parameter to be taken into account in the evaluation of the constitutional validity of norms. The Conseil in 1990 reminded the legislature of the duty "respecter les engagements internazionaux souscrits par la France et les libertes et droits fondamentaux de valuer constitutionnelles reconnus a tous ceux qui resident sur le territoire de la Republique."

 

3. Martinico and Oreste, supra note 1, at 159.

 

4. Sweet and Keller, supra note 2, at 14. The authors argue that the Strasbourg Court's command and control capacities are weak; they are primarily reduced to the ordering of compensatory damages to be paid in just satisfaction to successful appellants.

 

5. Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, Marinus Nijhoff, 1996, at 6; Also see Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and The Principle of Proportionality in the Jurisprudence of ECHR, Intersentia, 2011, at 1‒2. The author summarizes that the doctrine of "margin of appreciation" is used to indicate the measure of discretion allowed in the manner in which they implement Convention standards, taking account of their own circumstances and condition.

 

6. Marisa Iglesias Vila, A Margin of Appreciation Doctrine for the European Convention of Human Rights: In search of Balance Between Democracy and Rights in the International Sphere.

 

7. The Commission considered Britain competent to pronounce on the existence of public danger, which under Article 15 would grant to the contracting party concerned the right to derogate from the state obligation laid down in the Convention.

 

8. Lawless vs. Ireland, 332/57, Report of the Commission, 19 December, 1959.

 

9. Steve Greer, Interpretation and Discretion Under the European Convention on Human Rights, Council of Europe Publishing, 2000, at 5.

 

10. Ronald St John Macdonald, "The Margin of Appreciation,"  in R. Macdonald, F. Matscher and H. Petzold, eds., The European System for Protection of Human Rights, Martinus Nijhoff, 1993, at 192; Also see Johan Callewaert, "Is There a Margin of Appreciation in Application of Articles 2, 3 and 4 of the Convention," Human Rights Law Journal 19, 1998, vol.19, at 6‒9. The author has pointed out that this doctrine has never been invoked with respect to Articles 2, 3 and 4.

 

11. Handyside vs. UK, 5493/72, Judgment 7 December, 1972.

 

12. Humphrey Waldock, "The Effectiveness of the System Set Up by the European Convention of Human Rights," Human Rights Law Journal 1, 1980, at 9.

 

13. Vagrancy vs. Belgium, 2832/66, 2835/66, 2899/66, judgment 18 November, 1970.

 

14. Jan Kratochivil, "The Inflation of the Margin of Appreciation By the European Court of Human Rights," Netherlands Quarterly of Human Rights 11, 2011, at 329.

 

15. Jeffrey A. Bauch, "The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to Rule of Law," Columbia Journal of European Law 11, 2005, at 129.

 

16. Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects, Cambridge, 2006, at 212.

 

17. Lingens vs. Austria, 9815/82, judgment 8 July, 1986.

 

18. Paolo G. Carozza, "Subsidiarity As A Structural Principle Of International Human Rights Law," The American Journal Of International Law 97, 2003, at 57. Carozza regards subsidiarity as fundamentally concerned with distribution of competence among different levels of governance. Within the European architecture of fundamental protection, subsidiarity is applicable whenever the Strasbourg Court finds domestic courts better placed to make decisions than Strasbourg is.

 

19. Dean Spielmann, "Allowing the Rights Margin of the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review," CELS Working Paper, 2012, at 3. Also see para. 11 of the Brighton Declaration: The Jurisprudence of the Court makes clear that the States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstance of the case and the rights and freedom engaged. That reflects that the Convention system is subsidiary to the safeguarding of human rights at the national level and that national authorities are in principle better placed than an international court to evaluate local needs and conditions. The margin of appreciation goes hand in hand with supervision under the Convention system. In this respect, the role of the Court is to review whether decisions taken by the national authorities are compatible with the Convention having due regard to the State's margin of appreciation.

 

20. Howard Charles Yourow, The Margin of Appreciation Doctrine in Dynamic of European Human Rights Jurisprudence, Kluwer, 1996, at 13. Yourow describes the doctrine as "freedom to act, manoeuvring, breathing or 'elbow' room"; or the latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies before it is prepared to declare a violation of European Convention; Arai-Takahashi, The Margin of Appreciation Doctrine, 2001, at 2. Takahashi depicts the doctrine as "a latitude the government enjoys in applying the provision of a treaty." Eyal Benvenisti, Margin of Appreciation, Consensus, Universal Standards, New York University Journal of International Law and Politics 31, 1999, at 843. Benvenisti describes it as "a certain latitude in resolving the inherent conflicts between individual rights and national interest or among different moral convictions." Steven Greer, supra note 9, at 5. Greer refers to the Doctrine as "a room for manoeuvre the Strasburg institutions are prepared to accord national authorities in fulfilling their obligation and bandwidth." J. G. Merills, The Development of International Law by the European Court of Human Rights, Manchester, 1993, at 151. Merrills regards the doctrine equally as the "area of discretion."

 

21. See Dean Spielmann, Whither the Margin of Appreciation, Current Legal Problem Lecture, 20 March, 2014, at 4. President Spielmann argues that the conception of subsidiarity is not, as some would have it, to state authorities in a broad or general way on traditional sovereignty grounds. Rather, the Convention mechanism is subsidiary to the national systems safeguarding human rights.

 

22. Jan Kratochvil, "The Inflation of the Margin of Appreciation By the European Court Of Human Rights," Netherlands Quarterly of Human Rights 29, 2011, at 332.

 

23. George Letsas, "Two Concepts of the Margin of Appreciation," Oxford Journal of Legal Studies 26, 2006, at 709‒710.

 

24. Ibid., at 721.

 

25. Rolv Ryssdall, "The Coming of Age of the of the European Convention of Human Rights," European Human Rights Law Review 18, 1996, at 24.

 

26. Georg Letsas, supra note 23, at 722.

 

27. Immobiliare Saffi vs. Italy, 22274/93, Decision, 28 July, 1999.

 

28. James and Others vs. UK, 8793/79, 21 February, 1986.

 

29. Micheal Theodossiou Ltd vs. Cyprus, 31811/04, 15 January, 2009; Antonopoulou vs. Greece, 49000/06, 16 April, 2009.

 

30. Axioglou vs. Greece, 45145/06, 12 March, 2009.

 

31. Benet Czech vs. The Czech Republic, 31555/05, 21 October, 2010.

 

32. Lautsi vs. Italy, 30814/06, 3 November, 2009.

 

33. Dominick Mcgoldrick, "Religion in the European Public Square and in European Public Life – Crucifixes in the Classroom," Human Rights Law Review 11, 2011, at 451.

 

34. Giulio Itzcovich, "One, None and One Hundred Thousands Margins of Appreciation: The Lautsi Case," Human Rights Law Review 13, 2013, at 3.

 

35. Stec & Others vs. United Kingdom, 65731/01, 12 April, 2006.

 

36. Spielmann, supra note 19, at 13.

 

37. Evens vs. UK, 6339/05, 10 April, 2007.

 

38. For example X & Y vs. Netherlands, 8978/80, judgment 26 March, 1985; Dudgeon vs. UK, 7525/76, judgment 22 October, 1981; Christine Goodwin vs. UK, 28957/95, 11 July, 2002.

 

39. Schalk and Kopf vs. Austria, 30141/04, final judgment 22 November, 2010.

 

40. Gas and Debois vs. France, 25951/07, judgment 15 March, 2012.

 

41. X and Others vs. Austria, 19010/07, judgment 19 February, 2013.

 

42. A, B and C vs. Ireland, 25579/05, judgment 16 December, 2010.

 

43. Dahlab vs. Switzerland, 42393/98, judgment 15 February, 2001.

 

44. Yutaka Arai-Takahashi, "The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg's Variable Geometry," in A. Follesdal, B. Peters and G. Ulfstein, eds., Constituting Europe: The European Court of Human Rights in National, European and Global Context, Cambridge, 2013, at 103.

 

45. Greer, supra note 9, at 15‒20.

 

46. Yutaka Arai-Takahashi, supra note 5, at 16.

 

47. Andrew Legg, The Margin of Appreciation in International and Human Rights Law: Deference and Proportionality, Oxford, 2012, at 180. In the case of Thlimmenos concerning the appellant's exclusion from becoming an accountant because of his record of a crime of conscience, the Grand Chamber of the Strasbourg Court found that, as a result of disproportionateness, the state's conduct lacked a legitimate aim.

 

48. Letsas, supra note 23, at 711.

 

49. Greer, supra note 9, at 15.

 

50. Lingens vs. Austria, 9815/82, judgment 8 July, 1986.

 

51. Mathieu Mohin and Clerfayt vs. Belgium, 9267/81, 2 March, 1987.

 

52. Aziz vs. Cyprus, 69949/01, Judgment 22 September, 2004.

 

53. Hirst vs. UK, 74025/01, judgment 6 October, 2005.

 

54. Philis vs. Greece, 12750/87, 13780/88, 14003/88, 27 August, 1991.

 

55. Aerts vs. Belgium, 61/1997/845/1501, 30 July, 1998.

 

56. Apostol vs. Georgia, 40765/02, 28 November, 2006.

 

57. Stephen P. Marks, "The European Convention on Human Rights and its 'Democratic Society,'" British Yearbook on International Law 66, 2005, at 211.

 

58. Steven Greer, "The Interpretation of the European Convention on Human Rights: Universal Principle or Margin of Appreciation," UCL Human Rights Law Review 3, 2010, at 6.

 

59. Marks, supra note 57, at 211.

 

60. United Communist Party of Turkey vs. Turkey, 133/1996/752/951, judgment 30 January, 1998.

 

61. Young, James and Webster vs. UK, 7601/76, 7806/77, judgment 13, August 1981.

 

62. Kjeldson, Busk Mudsen & Pedersen vs. Denmark, 5095/71, 5920/72, 5926/72, 7 December, 1976.

 

63. Winterwerp vs. The Netherlands, 6301/73, 24 October, 1979.

 

64. De Wilde, Ooms and Versyp vs. Belgium, 2832/66, 2835/66 and 2899/66, 18 June, 1971.

 

65. R vs. Goldstein, 1 WLR, at151.

 

66. Juan Cianciardo, The Principle of Proportionality: Its Dimension and Limits.

 

67. Belgian Linguistic Case, 1474/62, 23 July, 1968.

 

68. Soering vs. UK, 14038/88, 07 July, 1989.

 

69. Arai-Takahashi, supra note 5, at 14.

 

70. Edition Plon vs. France, 58148/00, 18 August, 2004.

 

71. Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in European Convention on Human Rights, 2009, at 191.

 

72. Janneke Gerards, "How to Improve Necessity Test of European Court of Human Rights," International Journal of Constitutional Law 11, 2013, at 482.

 

73. Daróczy v. Hungary, 44378/05, 1 July, 2008.

 

74. Observer and Guardian vs. UK, 13585/88, 26 November, 1991.

 

75. Gerards, supra note 72, at 483; Arai-Takahashi, supra note 5, at 14.

 

76. Ürper and others vs. Turkey, 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07, 20 October, 2009.

 

77. Glor vs. Switzerland, 13444/04, 30 April, 2009.

 

78. Orban and others vs. France, 20985/05, 15 January, 2009.

 

79. Société de Conception de Presse et d'Edition et Ponson vs. France, 26935/05, 5 March, 2009.

 

80. George Letsas, "The ECHR as a Living Instrument: Its Meaning and Legitimacy," in A. Follesdal and G. Ulfstein, supra note 44, at 106.

 

81. Tyrer vs. UK, 5856/72, 25 April, 1978.

 

82. Marckx vs. Belgium, 6833/74, 13 June 1979.

 

83. Dudgeon vs. UK, 7525/76, 24 February, 1983.

 

84. John L. Murray, "The Influence of the European Convention on Fundamental Human Rights on Community Law," Fordham International Law Journal 33, 2011, at 1406.

 

85. Goodwin vs. UK, 17488/90, 27 March, 1997.

 

86. Murray, supra note 84, at 1407.

 

87. Demir and Baykara v. Turkey 34503/97, 12 November, 2008.

 

88. Bayatyan vs. Armenia, 23459/03, 7 July, 2011.

 

89. For instance, the Court decided that Greek authorities had violated Article 6 in its decision on Hornsby. The appellants were a British couple—both graduate English teachers—who wanted to settle in Greece and teach English. The Greek authorities simply refused to grant them work permits, and even ignored the domestic court's judgment ordering them to grant the required papers. The Court referred to the Strasbourg ruling opinion in Commission vs. Greece, stating that "the administrative authorities from one element of a State subject to the rule of law and their interests accordingly coincide with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 enjoyed by a litigant during the judicial phase of a proceeding are rendered devoid of purpose.

 

In the Maslov case, a Bulgarian youth was sentenced to prison in 2000, and a 10-year exclusion order was imposed on him in 2001. The decision became final in 2002, but it was only in 2003 that he was actually expelled. In the intervening period—i.e., between 2000 and 2003—he did not commit any further offenses, and the question was whether this period of good conduct should be taken into account when reviewing the expulsion order under the ECHR. Austria insisted that developments after the final decision should not be taken into account, but the Strasbourg Court did not agree: "Its task is to assess the compatibility with the convention of the final expulsion order. Mutadis Mutandis, this would also be the approach followed by the European Court of Human Rights which stated in its Orfanopoulos and Oliveri judgment that Article 3 of the Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another member state, factual matters that occurred after the final decision of the competent authorities."

 

The European Convention provides that any restriction must be in accordance with the law. "Law" means domestic law in this context, but since Van Gend and Enel ECJ case law, it would be wrong to ignore EU law. The French case Mendizabal is a good example. The appellant described herself as "a Basque citizen of Spanish nationality." She had been refused a residence permit to which she was entitled as an EU citizen. Apparently, the French authorities were hesitant to issue her full-fledged residence in view of her relationship to ETA. Be that as it may, the resulting uncertainty interfered with her rights with respect to her family life. It was not very difficult to find a breach of that provision given that the authorities had not acted in conformity with the law. "The law in question is French Law or EU law." In its judgment, the ECHR referred extensively to secondary Community legislation and quoted the Baumbast and Commission vs. Belgium decision.

 

90. Steven Greer, supra note 16, at 212.

 

91. Ibid.

 

92. Steven Greer, Strasbourg, at 5.

 

93. Dean Spielmann, "Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine—Waiver or Subsidiary of European Review?", in Center for European Legal Studies Working Paper Series, Cambridge, 2012, at 22.

 

94. F. Matscher, "Method of Interpretation of the Convention," in R. S. J. Macdonald, F. Mastcher and H. Petzold,  eds., supra note 10 , at 79.