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Rethinking the Two Margins of Appreciation

  • Oddný Mjöll Arnardóttir
Abstract

European Court of Human Rights – Subsidiarity – Margin of appreciation – Deference – Theorising the margin of appreciation based on a large case law study – The ‘systemic’ (rethought ‘structural’) element of the margin of appreciation relies on a functional rationale related to the distribution of tasks within the European system for the protection of human rights and is based on non-merits reasons – The ‘normative’ (rethought ‘substantive’) element reflects normative flexibility and is based on merits reasons – Both margins reflect the principle of subsidiarity – The two margins most often interact in partial deference but the systemic margin can also lead to complete deference – Presumptions of complete deference in the case law of the Court – Implications of increased reliance on the systemic margin as the Court moves emphasis from ‘substantive’ to ‘procedural’ review.

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Prof. dr. Oddný Mjöll Arnardóttir is Professor of human rights law at the University of Iceland. This article is part of a research project on the margin of appreciation, funded by the Icelandic Research Fund. It was drafted during visiting fellowships at iCourts, the Centre of Excellence for International Courts at Copenhagen University and at the European University Institute in Florence. An earlier version was presented at seminars at the University of Copenhagen (iCourts Centre) and the University of Oslo (MultiRights project). I would like to thank George Letsas, Andrew Legg, Urska Sadl and the other participants at the seminars for their feedback; Gunnar Narfi Gunnarsson for assistance with case-law analysis; and anonymous reviewers for their helpful comments.

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1 Significantly Letsas, G., ‘Two Concepts of the Margin of Appreciation’, 26 OJLS (2006) p. 705 and Legg, A., The Margin of Appreciation in International Human Rights Law: Deference and Proportionality, (Oxford University Press 2012) Ch. 2, 3, 7 and 8. See also Arai-Takahashi, Y., ‘The margin of appreciation doctrine: a theoretical analysis of Strasbourg’s variable geometry’ in A. Føllesdal et al. (eds.), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge University Press 2013) p. 62 at p. 82-102; and Shany, Y., ‘Toward a General Margin of Appreciation Doctrine in International Law?’, 16 EJIL (2006) p. 907.

2 For example Kratochvíl, J., ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’, 29 NQHR (2011) p. 324 at p. 329-335 (norm application, norm definition, choice of means, other uses); Greer, S., The margin of appreciation: interpretation and discretion under the European Convention on Human Rights (Council of Europe Publishing 2000) p. 23-31 (democracy in crisis, balancing against public interest, balancing competing rights, positive obligations, adjectival discretion in defining exceptions, discrimination); Greer, S., The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press 2006) Ch. 4. See also Arai-Takahashi, supra n. 1, p. 69-78 (fact-finding, evaluating national law, evaluating human rights norms, balancing against public interest, balancing competing rights).

3 For example Arai-Takahashi, Y., The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002); Brems, E., ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights’, 56 Heidelberg Journal of International Law (1996) p. 240. Much of the literature on influencing factors is focused on specific Convention rights, see for example Arnardóttir, O. M., ‘The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 ECHR’, 14 HRL Rev (2014) p. 647.

4 For example Macdonald, R. St. J., ‘The Margin of Appreciation’, in R. St. J. Macdonald et al. (eds.), The European System for the Protection of Human Rights (Martinus Nijhoff Publishers 1993) p. 84; Letsas, ‘Two Concepts’, supra n. 1, p. 706; Shany, supra n. 1, p. 910; Kratochvíl, supra n. 2, p. 354; Greer 2000, supra n. 2, p. 32; Gerards, J., ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, 17 ELJ (2011) p. 80 at p. 114; Popelier, P. and Van de Heyning, C., ‘Procedural Rationality: Giving Teeth to the Proportionality Analysis’, 9 EuConst (2013) p. 230 at p. 248-249.

5 Legg, supra n. 1, p. 4.

6 The point was for example made by Legg, supra n. 1, p. 70; and Brems, E. and Lavrysen, L., ‘Procedural Justice in Human Rights Adjudication: The European Court of Human Rights’, 35 Hum. Rts. Q (2013) p. 176 at p. 199-200.

7 See Popelier and Van de Heyning, supra n. 4, p. 243; Popelier, P., ‘The Court as Regulatory Watchdog: The procedural approach in the case law of the European Court of Human Rights’ in P. Popelier et al. (eds.), The Role of Constitutional Courts in Multilevel Governance (Intersentia 2012) p. 249 at p. 265; and Van de Heyning, C., ‘No Place like Home: Discretionary space for the domestic protection of fundamental rights’ in P. Popelier et al. (eds.), Human rights protection in the European legal order: The interaction between the European and the national courts (Intersentia 2011) p. 65 at p. 95.

8 Gerards, J., ‘The prism of fundamental rights’, 8 EuConst (2012) p. 173 at p. 197-199.

9 It should be noted that Arai-Takahashi, supra n. 1, has also recently aimed to theorise the doctrine as a whole, but he follows Letsas’ dual conceptualisation of two margins of appreciation.

10 On legal theory building, see McCrudden, C., ‘Legal research and the social sciences’, 123 L.Q.R. (2001) p. 632 at p. 634; and Van Hoecke, M., ‘Legal Doctrine: Which Method(s) for What Kind of Discipline’ in M. Van Hoecke (ed.), Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline (Hart 2013) p. 1 at p 14-15.

11 The case law analysis performed for this study reached all cases categorised as belonging to case reports and importance level 1 on the HUDOC database, pronounced as from 1 January 2006 until 1 April 2015. The search functions available on HUDOC were utilised in conjunction with the above criteria in search for the terms ‘margin of appreciation’ and ‘require strong reasons to substitute’. Older judgments referred to by the Court or identified in the literature as important contributions to the development of the margin of appreciation doctrine were also consulted and relied upon as relevant.

12 Legg, supra n. 1, p. 58. He argues that the theory espoused ‘closely corresponds to the practice’, and ‘enables a coherent exposition of the doctrine’ (p. 18). As to the doctrine’s legitimacy, a similar account can be found in e.g. Mahoney, P., ‘Marvellous Richness of Diversity or Invidious Cultural Relativism’, 19 HRLJ (1998) p. 1.

13 See Raz, J., Practical Reason and Norms (Oxford University Press 1999).

14 Legg, supra n. 1, p. 18 and 219.

15 Id., p. 8-9 and 196.

16 Id., p. 200.

17 Id., p. 37.

18 Specifically, Legg states that any assessment of state conduct is in effect a proportionality assessment (id., p. 181), and that proportionality is more accurately conceptualised as a tool to define the contours of rights than as a tool for assessing interferences with rights (id, p. 178). This stance also leads to the approach that the distinction between proportionality assessments and definitions of the scope of rights is completely irrelevant (id. p. 55, 66, 190). On the opposite position, arguing that there is an important distinction between the definition of the scope of rights and their application so defined, and that there is no place for the margin of appreciation with respect to the former, see Greer 2006, supra n. 2, p. 212; and Gerards, J. and Senden, H., ‘The structure of fundamental rights and the European Court of Human Rights’, 7 ICON (2009) p. 619 at p. 652. Legg’s merger of different functions and analytic techniques in the Court’s jurisprudence into ‘proportionality’ is not followed in the present article, as it does not reflect the different stages in the Court’s reasoning accurately enough, and masks important differences in the function and rationale for the margin of appreciation doctrine as it applies to these different stages.

19 Legg, supra n. 1, p. 19.

20 Id., p. 36. He nevertheless hints at possible unreviewability in the context of deference to UN Security Council Resolutions (id., p. 139) and argues that there is generally more reason for deference to international organisations than states (id., p. 144).

21 Id., p. 23.

22 Id., p. 37.

23 Id., p. 23. Correspondingly Legg refers to situations where the Court does not engage normatively as instances of ‘servility’ (id., p. 23) or ‘obedience’ (id., p. 137) to others, which he considers to have no place in the Court’s jurisprudence.

24 On the fourth instance doctrine as synonymous with the margin of appreciation see Christoffersen, J., Fair Balance: Proportionality, Subsidiarity and Primacy in the European Convention on Human Rights (Martinus Nijhoff Publishers 2009) p. 238-239. The Court, indeed, seems to use the two terms interchangeably, see, for example, ECtHR 19 October 2006, Case No. 65550/01, Koval v Ukraine, para. 118, where the Court referred to the national court’s margin of appreciation ‘in the admission and assessment of evidence’. On the fourth instance doctrine generally, see Dahlberg, M., ‘…It is not its task to Act as a Court of Fourth Instance’: The Case of the European Court of Human Rights’, 7 EJLS (2014) p. 84; Arai-Takahashi, supra n. 3, p. 235; and European Court of Human Rights, Practical Guide on Admissibility Criteria, 31 March 2011, <www.dp-rs.si/fileadmin/dp.gov.si/pageuploads/RAZNO/Admissibility_guide_ENG.pdf>, visited 8 February 2016.

25 ECtHR 26 June 2009, Case No. 46423/069, Beganović v Croatia, para. 78.

26 ECtHR 15 September 2009, Case No. 10373/05, Moskal v Poland, para. 56.

27 ECtHR 20 September 2011, Case No. 14902/04, Oao Neftyanaya Kompaniya Yukos v Russia, para. 559.

28 Koval v Ukraine supra n. 24, para. 118.

29 ECtHR 19 February 2009, Case No. 4063/04, Marchenko v Ukraine, para. 48.

30 ECtHR 11 April 2006 Case No. 19324/02, Léger v France, para. 72.

31 The Court, however, retains the power to intervene and engage in its own assessments if the facts of the case reveal arbitrariness or manifest deficiencies in the way the domestic courts handled the relevant issues, see, for example, Beganović v Croatia, supra n. 25, paras. 78 and 85.

32 Examples where the Court does not engage normatively seem to be interpreted by Legg as ‘failure’ and ‘mistakes’ (Legg, supra n. 1, p. 27 and 36). Cases that exhibit the well-established main approach of complete or almost complete deference to domestic courts’ interpretation of domestic law, further, seem to be interpreted as exceptions (id., p. 173).

33 Letsas, supra n. 1, p. 706.

34 Id.

35 Id., p. 720-722.

36 Id., p. 711 and 714.

37 Id., p. 722 ff.

38 Id., p. 710 ff.

39 Finnis, J., Natural Law and Natural Rights (Oxford University Press 1980); Raz, Practical Reason and Norms, supra n. 13; Raz, J., The Morality of Freedom (Oxford University Press 1986).

40 Legg, supra n. 1, p. 107: ‘Much of this book relates to the interpretation of the Treaties’.

41 Letsas supra n. 1, p. 710 and 731-732. See generally Dworkin, R., Taking Rights Seriously (Harvard University Press 1978).

42 Letsas, id., p. 706. Legal interpretivism is primarily based in Ronald Dworkin’s body of work. In contrast with legal positivism it offers a constitutive explanation of legal rights according to which the practice of legal institutions is not determinative alone. Instead, and perhaps more importantly, moral principles have a fundamental justificatory role. See Stavropoulos, N., Legal Interpretivism, Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., Summer 2014 Edition) <plato.stanford.edu/archives/sum2014/entries/law-interpretivist/>, visited 8 February 2016.

43 Letsas, supra n. 1, p. 722-723.

44 Id., p. 711.

45 For example under Art. 8, see ECtHR 16 December 2010, Case No. 25579/05, A, B and C v Ireland, para. 233 on abortion legislation in Ireland; and ECtHR 10 April 2007, Case No. 6339/05, Evans v United Kingdom, para. 77 on the use of embryos. In the context of Art. 9 and Art. 2 of Protocol 1, compare the wide margin of appreciation applied in relation to religious symbols in the classroom in ECtHR 4 December 2008, Case No. 27058/05, Dogru v France and ECtHR 18 March 2011, Case No. 30814/06, Lautsi and Others v Italy, and the narrower margin applied in relation to conscientious objection to military service in ECtHR 7 July 2011, Case No. 23459/03, Bayatyan v Armenia or the dissolution of a religious community in ECtHR 10 June 2010, Case No. 302/02, Jehovah’s Witnesses of Moscow and Others v Russia. See generally also Schokkenbroek, J., ‘The Basis, Nature and Application of the Margin-of-Appreciation Doctrine in the Case-Law of the European Court of Human Rights’, 19 HRLJ (1998) p. 34; Arai-Takahashi, supra n. 3, p. 206-212; and Legg, supra n. 1, p. 86-88.

46 For example, under Art. 8, the Court often refers to a wide margin of appreciation in relation to social or economic policy or technical issues, see, for example, ECtHR 2 November 2010, Case No. 3976/05, Şerife Yiğit v Turkey, para. 100. A wide margin of appreciation is also habitually referred to in relation to substantive assessments under Art. 1 of Protocol 1, see, for example, ECtHR 19 June 2006, Case No. 35014/97, Hutten-Czapska v Poland, paras. 223-234 and ECtHR 15 March 2007, Case Nos. 43278/98 etc., Velikovi and Others v Bulgaria, paras. 179-180. Under Art. 2 of Protocol 1, there is also a wide margin of appreciation for the ‘setting and planning of the curriculum’, see ECtHR 29 June 2007, Case No. 15472/02, Folgerø and Others v Norway, para. 84 and Lautsi and Others v Italy, supra n. 45, para. 69. See generally also Schokkenbroek, supra n. 45, p. 34; and Arai-Takahashi, supra n. 3, p. 214-215.

47 ECtHR 24 July 2012, Case No. 40721/08, Fáber v Hungary, para. 42 (balancing under Arts. 10 and 11); ECtHR 12 September 2011, Case Nos. 28955/06 etc., Palomo Sánchez and Others v Spain, para. 54 (balancing under Arts. 8 and 10). Recently, the Court has even refrained from engaging normatively in cases of this kind, see infra.

48 Also, when discussing ‘external factors’ influencing the balancing of conflicting Convention rights, Legg only addressed deference to the domestic legislature, but not to the domestic courts, see Legg, supra n. 2, p. 83-85.

49 Letsas, supra n. 1, p. 721.

50 Due to the unclear and confused contours of the margin of appreciation, some authors have questioned whether it can be referred to as ‘doctrine’ proper, see Greer 2000, supra n. 2, p. 32.

51 Similarly, he also argued that the confusion between the two functions was a problematic element of the case law and that the distinction was more or less lost on the doctrine as it had evolved in the case law of the Court, see Macdonald, supra n. 4, p. 84-85.

52 Yourow, H. C., The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijhoff Publishers 1996) p. 195-196. Although categorised into four components, the two elements also appear indirectly in Arai-Takahashi’s conceptualisation, see Arai-Takahashi, supra n. 3, p. 236-242. In subsequent work, he has adopted Letsas’ dual conceptualisation as a heuristic tool, see Arai-Takahashi, supra n. 1, p. 90 and 94.

53 Shany, supra n. 1, p. 909-910, associating the former with norm-application, and the latter with norm-interpretation.

54 Spielmann, D., ‘Whither the Margin of Appreciation’, 67 CLP (2014) p. 49.

55 Similarly, see the discussion by Judge Robert Spano of selected judgments as exhibiting the ‘process of reformulating or refining the concepts of subsidiarity and the margin of appreciation’, Spano, R., ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’, 14 HRL Rev. (2014) p. 487 at p. 492.

56 Macdonald, supra n. 4, p. 84; Letsas, supra n. 1, p. 706; Shany, supra n. 1, p. 910; Legg, supra n. 1, p. 36.

57 Yourow, supra n. 52, p. 195; Letsas, supra n. 1, particularly p. 724-729.

58 Spielmann, supra n. 54, p. 63; Letsas supra n.1, p. 723.

59 ECtHR 7 December 1976, Case No. 5493/72, Handyside v United Kingdom, para. 48.

60 Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 24 June 2013), CETS No. 213.

61 See e.g. Evans, M. and Zimmermann, A. (eds.) Global Perspectives on Subsidiarity (Springer 2014). For contributions in the field of international law see Føllesdal, A., ‘The principle of subsidiarity as a constitutional principle in international law’, 2 Global Constitutionalism (2013) p. 37; Shelton, D., ‘Subsidiarity and Human Rights Law’, 27 HRLJ (2006) p. 4; Carozza, P. G., ‘Subsidiarity as a Structural Principle of International Human Rights Law’, 97 AJIL (2003) p. 38; and Carter, W. M., ‘Rethinking Subsidiarity in International Human Rights Adjudication’, 30 Journal of Public Law and Policy (2008) p. 319. For contributions in the EU context see Bermann, G. A., ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’, 94 Colum.L.Rev. (1994) p. 332; Schilling, T., ‘A New Dimension of Subsidiarity: Subsidiarity as a Rule and a Principle’, 14 Y.B. Eur. L. (1995) p. 255; de Búrca, G., ‘The Principle of Subsidiarity and the Court of Justice as an Institutional Actor’, 36 JCMS (1998) p. 217; and Horsley, T., ‘Subsidiarity and the European Court of Justice: Missing Pieces in the Subsidiarity Jigsaw?’, 50 JCMS (2012) p. 267.

62 ECtHR 23 July 1968, Case Nos. 1474/62 etc., Case relating to certain aspects of the laws on the use of languages in education in Belgium v Belgium, part IA, para. 4.

63 ECtHR 15 March 2012, Case Nos. 39692/09 etc., Austin and Others v United Kingdom, para. 61. For a recent review of the principle of subsidiarity as it appears in the case-law of the ECtHR, see Mowbray, A., ‘Subsidiarity and the European Convention on Human Rights’, 15 HRL Rev (2015) p. 313.

64 Shelton, supra n. 61, p. 5.

65 ECtHR 8 July 2003, Case No. 36022/97, Hatton and Others v United Kingdom, para. 97.

66 ECtHR 7 July 2011, Case No. 37452/02, Stummer v Austria, para. 89.

67 E.g. Helfer, L. R., ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’, 19 EJIL (2008) p. 125 at p. 128.

68 Carter, supra n. 61, p. 319-320; Macdonald, supra, n. 4, p. 123.

69 Carozza, supra n. 61, p. 40, refers to the principle as ‘a conceptual and rhetorical mediator between supranational harmonization and unity, on the one hand, and local pluralism and difference, on the other.’ See also Raz, J., ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in L. Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge University Press 2001) p. 152 at p. 173-174 and 188-189, who highlights the legitimating function of ‘non-merit reasons’ when they are relied upon in the context of constitutional interpretation.

70 Carozza, supra n. 61, p. 43-44. Føllesdal, supra n. 61, p. 61-62 focuses on the normative role of justifying or legitimising action on part of the international human rights regime, arguing that current state-centric versions of the principle are problematic and that a focus on individual interests would be a more plausible way of imbuing the principle with normative force. See also Føllesdal, A., ‘Squaring the Circle at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has it Just Begun?’ in O. M. Arnardóttir and A. Buyse (eds.), Shifting Centres of Gravity of Human Rights Protection Rethinking Relations between the ECHR, EU and National Legal Orders (forthcoming, Routledge 2016), on file with author.

71 In the Court’s own words, pluralism is ‘indissociable’ from a democratic society, see e.g. ECtHR 10 November 2005, Case No. 44774/98, Leyla Şahin v Turkey, para. 104.

72 Carozza, supra n. 61, p. 44. Mowbray, supra n. 63, p. 340 notes how the principle of subsidiarity has indeed also been relied on by the Court to legitimate its judicial intervention when the domestic level has clearly failed, referring to ECtHR 13 December 2012, Case No. 39630/09, El-Masri v The Former Yugoslav Republic of Macedonia regarding defects in fact-finding at the national level; and ECtHR 7 February 2013, Case No. 16574/08, Fabris v France regarding clear disregard for well-established ECtHR case law.

73 Carozza, supra n. 61, p. 57.

74 Id., p. 62.

75 Føllesdal, supra n. 61, p. 37 (emphasis added). In the EU context, Bermann, supra n. 61, p. 366-367 speaks of four functions: legislative function; interpretative function; a function of conferring legality; and a function in terms of confidence-building. All are in a sense sub-categories or consequences of the principle’s key functions of governing the allocation or use of power.

76 In the Convention context, more specifically, Herbert Petzold actually already in 1993 identified that the principle of subsidiarity had taken on both connotations in the Court’s case law, see Petzold, H., ‘The Convention and the Principle of Subsidiarity’ in R. St. J. Macdonald et al. (eds.), The European System for the Protection of Human Rights (Martinus Nijhoff Publishers 1993) p. 49.

77 Macdonald, supra n. 4 and Shany, supra n. 1 hardly mention subsidiarity, and while Spielmann, supra n. 54, does, he makes no connection between the different functions of the principle and the different functions of the margin of appreciation. In 2002 Arai-Takahasi, supra n. 3, p. 236 and 239-240 discussed subsidiarity as related only to one of the four elements of the margin of appreciation he identified (balancing sovereignty; Convention mandated deference; ‘fourth instance’ doctrine and the principle of subsidiarity; and contested value-judgments). In 2013 he, however, presented an updated account, reflecting Letsas’ conceptualisation of the link between subsidiarity and margin of appreciation, see Arai-Takahashi, supra n. 1, p. 90-94.

78 Subsequent works have not provided further articulation of this link either, see Arai-Takahashi, supra n.1, p. 90 and 94.

79 Carozza, supra n. 61, p. 61-63.

80 Letsas, supra n. 1, p. 722, referring to chronological, procedural and normative priority alike as part of the rationale for the structural margin of appreciation.

81 See generally Richards, H., ‘Deference’, 74 Ethics (1964) p. 135 at p. 139.

82 Raz, supra n. 69, p. 172 and 187.

83 Raz, supra n. 69, p. 187. See also Kavanagh, A., ‘Deference of Defiance?: The Limits of the Judicial Role in Constitutional Adjudication’ in G. Huscroft (ed.), Expounding the Constitution Essays in Constitutional Theory (Cambridge University Press 2008) p. 184 at p. 190.

84 Raz, supra n. 69, p. 187.

85 Raz, supra n. 13, p. 41.

86 Raz, supra n. 13, p. 37. See also Christodoulidis, E.A., Law and Reflexive Politics (Kluwer 1998) p. 227.

87 Legg, supra n. 1, p. 8-9 and 196.

88 On the hermeneutic perspective see MacCormick, N., H.L.A. Hart (Stanford University Press 1981) p. 38; Bell, J., ‘Legal Research and the Distinctiveness of Comparative Law’ in M. Van Hoecke (ed.), Methodologies of Legal Research Which Kind of Method for What Kind of Discipline? (Hart 2013) p. 155 at p. 159.

89 Consider, for example, the following examples: Evans v United Kingdom, supra n. 45, para. 77 (‘where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted’); ECtHR 4 December 2007, Case No. 44362/04, Dickson v United Kingdom, para. 77 (‘The breadth of this margin varies and depends on a number of factors, including the nature of the activities restricted and the aims pursued by the restrictions’); ECtHR 4 December 2008, Case Nos. 30562/04 and 30566/04, S and Marper v United Kingdom, para. 102 (‘The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights’).

90 Dogru v France, supra n. 45, paras. 63 and 75 respectively.

91 Dogru v France, supra n. 45, paras. 71 and 72 respectively.

92 Folgerø v Norway, supra n. 46, para. 84. Although the Court identified other problems with the contested obligatory religious education course, it concluded that emphasis on Christianity per se, pursued in the context of no indoctrination, would fall within the State’s margin of appreciation in planning and setting the curriculum, see para. 89. See also Lautsi and Others v Italy, supra n. 45, para. 62.

93 For an additional example see Beganović v Croatia, supra n. 25, para. 80, where the Court reasoned that ‘provided that criminal law mechanisms are available to the victim’ (merits reasons), ‘the choice of the means to secure compliance with Article 3 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the domestic authorities’ margin of appreciation’ (non-merits reasons).

94 The Court may, however, engage normatively on other elements of the same case, see, for example, ECtHR 3 July 2012, Case No. 34806/04, X v Finland, paras. 216-222, where the Court categorically and completely deferred with respect to the interpretation and application of national law, but proceeded to the classic normative assessment under Art. 8(2) of the quality of the law authorising interference (quality, accessibility and foreseeability).

95 For example Koval v Ukraine, supra n. 24, para. 115; and ECtHR 1 June 2006, Case No. 25921/02, Fedorenko v Ukraine, para. 27.

96 ECtHR 7 February 2012, Case Nos. 40660/08 and 60641/08, Von Hannover v Germany (No. 2).

97 ECtHR 30 June 2005, Case No. 45036/98, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland.

98 Richards, supra n. 81, p. 135.

99 Richards, supra n. 81, p. 138.

100 See Spielmann’s reference to parts of the doctrine as a tool by which the Court may ‘waive’ its power of review in Spielmann, D., ‘Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review’, 14 Cambridge Yearbook of European Legal Studies (2011-2012) p. 381 at p. 384.

101 Kavanagh, supra n. 83, p. 186, explains how ‘deference is a matter of degree depending on how much weight A assigns to B’s judgment’, which can range from situations of ‘partial deference’ to ‘absolute or complete deference’ (emphasis on original). This was described as the difference between ‘deference as respect’ and ‘deference as submission’ by Dyzenhaus, D., ‘The Politics of Deference: Judicial Review and Democracy’ in M. Taggart (ed.), The Province of Administrative Law (Hart 1997) p. 279 at p. 303. Soper, P., The Ethics of Deference: Learning from Law’s Morals (Cambridge University Press 2001) p. 20, uses the analogy of requests and orders to describe the same difference. Similarly, see Raz, supra n. 13, p. 101. For the development of three categories of deference along the axis of ‘submission’ to own assessments in the context domestic law, see Young, A. L., ‘In Defence of Due Deference’, 72 MLR (2009) p. 554 at p. 560-563.

102 Legg, supra n. 1, p. 17 and 21 uses the concept of deference in this unqualified manner, and understands deference as always partial. See also, for example, Kratochvíl, supra n. 2, p. 327 and Yourow, supra n. 52, p. 13.

103 Example taken from Richards, supra n. 81, p. 139.

104 See, for example, Hatton and Others v United Kingdom, supra n. 65. Compare paras. 122-127 (own proportionality assessment) and para. 128 (national decision-making process).

105 E.g. ECtHR 3 April 2012, Case No. 42857/05, Van der Heijden v Netherlands, paras. 56-57.

106 Kavanagh, supra n. 83, p. 190, referring to this intersection of rationales to support the conclusion that both are part of the interpretative process in national constitutional law.

107 This group of cases is referred to by Spielmann, supra n. 54, p. 63 as exhibiting the ‘systemic’ objective of the doctrine. Commentators are only beginning to make sense of it, see Arai-Takahashi, supra n. 1, p. 92, who briefly notes its existence in a footnote; and Çali, B., ‘Towards a Responsible Domestic Courts Doctrine? The European Court of Human Rights and the Variable Standard of Judicial Review of Domestic Court Judgments’ in O. M. Arnardóttir and A. Buyse (eds.), Shifting Centres of Gravity of Human Rights Protection Rethinking Relations between the ECHR, EU and National Legal Orders (forthcoming, Routledge 2016), on file with author.

108 For the classic approach, see, for example, ECtHR 22 October 2007, Case Nos. 21279/02 and 36448/02, Lindon, Otchakovsky-Laurens and July v France, para. 45.

109 ECtHR 7 February 2012, Case No. 39954/08, Axel Springer AG v Germany, para. 88; Von Hannover v Germany (No. 2), supra n. 96, para. 107. This new approach was originally developed in slightly different language in ECtHR 12 June 2012, Case No. 39401/04, MGN v United Kingdom, para. 150 and Palomo Sánchez and Others, supra n. 47, para. 57.

110 ECtHR 15 March 2012, Case Nos. 4149/04 and 41029/04, Aksu v Turkey.

111 MGN v United Kingdom, supra n. 109, paras. 145-156, where the Court did ‘not find any reason, let alone a strong reason, to substitute its view for that of the final decision of the House of Lords’ (para. 155). The second case is Von Hannover v Germany (No. 2), supra n. 96, paras. 114-126, where the Court concluded on how ‘national courts carefully balanced’ the competing rights (para. 124), and how they ‘explicitly took account of the Court’s relevant case-law’ (para. 125). Only in para. 120 did the Court add a minor own comment to the effect of confirming the assessment of the domestic court. The third case is Aksu v Turkey, supra n. 110. As regards the facts of Case No. 4149/04, see paras. 69-77, where the Court was ‘satisfied that […] the Turkish courts made an assessment based on the principles resulting from the Court’s well-established case-law’. Only in para. 70 did it add some limited own remarks when confirming the assessment of the domestic court.

112 Aksu v Turkey, supra n. 110, para. 86, see also paras. 84-85.

113 Axel Springer AG v Germany, supra n. 109, paras. 96-110. The Dissenting Opinion of Judge López Guerra, Joined by Judges Jungwiert, Jaeger, Villiger and Palelungi, however, held that since the domestic courts had duly performed the required balancing exercise, ‘none of the grounds which would justify a review by this Court of the judgments of the domestic courts are present’. In subsequent judgments the presumption of complete deference has been rebutted in situations where ‘the national courts did not carefully balance the journalist’s right to freedom of expression against the applicant’s right to respect for his private life’, see ECtHR 28 October 2014, Case No. 20531/06, Ion Cârstea v Romania, para. 38. Somewhat problematically, the Court may also sometimes refer to the presumption of Convention compliance, but apply the classic approach of its own proportionality review in part or in full, rendering the case-law on competing private interests somewhat confusing, see, for example, ECtHR 4 December 2012, Case No. 59631/09, Verlagsgruppe News GmbH and Bobi v Austria; and ECtHR, 24 October 2012, Case No. 40721/08, Fáber v Hungary. For a fuller analysis of the relevant case-law, see Arnardóttir, O. M., ‘Organised Retreat? The Move from ‘Substantive’ to ‘Procedural’ Review in the ECtHR’s Case Law on the Margin of Appreciation’, 5(4) ESIL Conference Paper Series (2015), <papers.ssrn.com/sol3/papers.cfm?abstract_id=2709669>, visited 24 February 2016.

114 Bosphorus Airways, supra n. 97, paras. 149-151.

115 Id., para. 154.

116 Id., para. 155.

117 Id., para. 156.

118 Id.

119 When originally introduced, concurring and dissenting judges expressed great unease over the move vis-à-vis EU law and competing rights, see id., Joint Concurring opinion of Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki, paras. 3 and 4; Palomo Sánchez and Others v Spain, supra n. 47, Joint Dissenting Opinion of Judges Tulkens, Davíd Thór Björgvinsson, Jočiené, Popović and Vučinić, para. 10; and MGN v United Kingdom, supra n. 109, Dissenting Opinion of Judge Davíd Thór Björgvinsson, para. 5.

120 Dyzenhaus, supra n. 101; Kavanagh, supra n. 83; Young, supra n. 101.

121 Article 267 TFEU. The use of the margin of appreciation in recent cases concerning the balancing of competing Convention rights has been described as resembling this structure of judicial decision-making, see Arnardóttir, O. M. and Guðmundsdóttir, D., ‘Speaking the Same Language? Comparing Judicial Restraint at the ECtHR and the ECJ’ in O. M. Arnardóttir and A. Buyse (eds.), Shifting Centres of Gravity of Human Rights Protection Rethinking Relations between the ECHR, EU and National Legal Orders (forthcoming, Routledge 2016), on file with author. It should be noted, however, that the structure provided for in Article 267 TFEU has not always prevented the ECJ from giving guidance so specific that it can be equated with full review, see Tridimas, T., ‘Constitutional review of member state action: The virtues and vices of an incomplete jurisdiction’, 9 ICON (2011) p. 737 at p. 739.

122 This distinction was, however, mentioned by Spano, supra n. 55, at p. 494, who argued that the Court’s role lies on a spectrum ranging from full de novo review of domestic decisions (as under Arts. 2 and 3) to ‘full and unlimited deference’ (which he argues is uncommon, but may be at issue in difficult cases under Arts. 6, 8-11, and Art. 1of Protocol 1).

123 Richards, supra n. 81, p. 136; Horsley, supra n. 61, p. 281. See also Gerards, J., ‘Procedural review by the ECtHR – a typology’, (forthcoming book chapter) on file with author, who argues that the omission of any substantive review is the ‘full logical consequence’ of increased attention to the quality of domestic decision-making processes in the Court’s review model.

124 This is one of the obvious consequences of applying Janneke Gerards’ idea that ‘procedural review’ should always precede ‘substantive review’, making the latter redundant in some types of cases, see Gerards, supra n. 8. While she argues that such an approach ‘would reduce the need to apply the margin of appreciation doctrine’ (p. 200), the Court itself seems to be embracing the doctrine as the mechanism through which to introduce it, see, for example, Von Hannover v Germany (No. 2), supra n. 96.

125 Letsas, supra n. 1, p. 721 (on structural margin): ‘I here refer to the tests employed to show whether interference with an individual right amounts to a violation under the various moral theories of human rights’.

126 Id., p. 721 and 722 respectively (emphasis added).

* Prof. dr. Oddný Mjöll Arnardóttir is Professor of human rights law at the University of Iceland. This article is part of a research project on the margin of appreciation, funded by the Icelandic Research Fund. It was drafted during visiting fellowships at iCourts, the Centre of Excellence for International Courts at Copenhagen University and at the European University Institute in Florence. An earlier version was presented at seminars at the University of Copenhagen (iCourts Centre) and the University of Oslo (MultiRights project). I would like to thank George Letsas, Andrew Legg, Urska Sadl and the other participants at the seminars for their feedback; Gunnar Narfi Gunnarsson for assistance with case-law analysis; and anonymous reviewers for their helpful comments.

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European Constitutional Law Review
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  • EISSN: 1744-5515
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