Margin of appreciation

The principle of “margin of appreciation” is a concept which is not based on the provi-sions of the Vienna Convention on the Law of Treaties. Furthermore, it is not men-tioned in the text of the European Convention on Human Rights. Like the principle of autonomous meaning, it is something that has appeared in the European control mechanism through the case law of the Court, and is traditionally foreign to most national legal systems. In brief, the essential elements of the doctrine, that the Court still refers to today, may be outlined as follows:

514 Christine Goodwin v. the United Kingdom, Grand Chamber judgment of 11 July 2002, Reports of Judgments and Decisions 2002-VI, § 100.

[…] Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals […].

In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s require-ments rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field […]

Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is im-paired […]. Furthermore, a limitation will not be compatible with Article 6 para.

1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.⁵¹⁵ The margin of appreciation is often linked with the principle of proportionality as can be seen in the quotation above. In essence, the principle means that the right protected by the Convention is not an absolute one, but may be subject to reasonable and proportionate restrictions. In certain situations, the national authorities are better placed to assess whether restrictions are necessary. The principle of margin of apprecia-tion is closely related to the restricapprecia-tions allowed in respect of the protecapprecia-tion afforded by the provisions of the Convention. According to the Convention, any restrictions must be based on law and they must be necessary in democratic society. Insofar as the necessity in democratic society is concerned, the Court has often stated that there must be a pressing social need for the restriction. For example:

[…] The adjective “necessary”, within the meaning of Article 10 para. 2 (art. 10-2), implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (art. 10). […] ⁵¹⁶; and

515 See Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A 93, § 57.

516 Sunday Times v. the United Kingdom (No. 2), judgment of 26 November 1991, Series A 217, § 50.

See also Tammer v. Estonia, judgment of 6 February 2001, Reports of Judgments and Decisions 2001-I, § 60.

By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity”

of a “restriction” or “penalty” intended to meet them. The Court notes at this juncture that, whilst the adjective “necessary”, within the meaning of Article 10 para. 2 (art.

10-2), is not synonymous with “indispensable” (cf., in Articles 2 para. 2 (art. 2-2) and 6 para. 1 (art. 6-1), the words “absolutely necessary” and “strictly necessary”

and, in Article 15 para. 1 (art. 15-1), the phrase “to the extent strictly required by the exigencies of the situation”), neither has it the flexibility of such expressions as

“admissible”, “ordinary” (cf. Article 4 para. 3) (art. 4-3), “useful” (cf. the French text of the first paragraph of Article 1 of Protocol No. 1) (P1-1), “reasonable” (cf. Articles 5 para. 3 and 6 para. 1) (art. 5-3, art. 6-1) or “desirable”. Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of “necessity” in this context.

Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. […] ⁵¹⁷

Thus, as the foregoing fragment of discourse indicates, the Court has also explained in detail what is meant by “pressing social need”, implying that restrictions on the free-dom of expression are to be avoided and limited to the strictly necessary. Even under national constitutional law, rights are not considered absolute in the sense that they could not be restricted under any circumstances. In constitutional law, a distinction is drawn between restriction or limitation of rights and a temporary derogation from the protection afforded⁵¹⁸. The Finnish Constitution, for example, does not contain any general limitation or derogation clause but the possibility of derogation is provided for in various fundamental rights provisions such as the provision on the freedom of expression.⁵¹⁹

According to Yourow, however, the margin of appreciation doctrine emerged first through cases in which States parties were considered to have the right to deroga-tion from the Convenderoga-tion in a situaderoga-tion of a public emergency which threatens the life of nation⁵²⁰. In his view, the origins of the doctrine are already in the Lawless case concerning preventive detention of a member of the Irish Republican Army, in which the Court reasoned with detailed description of facts as follows:

517 Handyside v. the United Kingdom, judgment of 7 December 1976, Series A 24, § 48.

518 See Ojanen 2001, p. 65.

519 For more detailed analysis concerning the possibilities of limiting fundamental rights under the Constitution, see Ojanen 2001, p. 67-75.

520 Yourow 1996, p. 15.

Whereas, in the general context of Article 15 (art. 15) of the Convention, the natural and customary meaning of the words “other public emergency threatening the life of the nation” is sufficiently clear; whereas they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed; whereas, having thus established the natural and customary meaning of this conception, the Court must determine whether the facts and circumstances which led the Irish Government to make their Proclamation of 5th July 1957 come within this conception; […]

Whereas, despite the gravity of the situation, the Government had succeeded, by using means available under ordinary legislation, in keeping public institutions functioning more or less normally, […];

Whereas, in conclusion, the Irish Government were justified in declaring that there was a public emergency in the Republic of Ireland threatening the life of the nation and were hence entitled, applying the provisions of Article 15, paragraph 1 (art.

15-1), of Convention for the purposes for which those provisions were made, to take measures derogating from their obligations under the Convention.⁵²¹

An analysis of the Court’s discourse indicates, however, that it indeed is a descrip-tion of a typical situadescrip-tion to which the principle of margin of discredescrip-tion or appreciadescrip-tion relates, but the principle itself is difficult to identify. The Court describes the situation in detail, but does not clearly state that it is for the national authorities to assess what is strictly required by the situation. When looking at the linguistic elements of discourse, the words “the Irish Government were justified” are a simple conclusion on the basis of facts. The Court has later expressed itself in clearer terms, starting with the concept of

“discretion”. Still in the case of Klass and Others v. Germany, also pertaining to national security, the Court refers clearly to the principle by using the term “discretion”, as follows:

As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion.

It is certainly not for the Court to substitute for the assessment of the national authori-ties any other assessment of what might be the best policy in this field (cf., mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no.

12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no.

18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48).

521 Lawless v. the United Kingdom, judgment of 1 July 1961, Series A 3, §§ 28 to 30.

Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. […] ⁵²²

The above fragment of discourse also clearly indicates the role of national authorities.

As appears from the cases of Sunday Times and Handyside cited in the foregoing, the term “discretion was later replaced with the French concept “margin of appreciation”

despite that it is foreign to the English language and legal system⁵²³.

While the application of the doctrine was rather rare at the beginning, since the Belgian language dispute⁵²⁴ it has gradually started to gain wider application, apart from national security, in other types of cases involving important national interests such as public morals, the common idea being that in these types of cases the national authorities are considered to be better placed to assess the requirements of the situation than an international judicial body which is geographically and sometimes in terms of time distant from the events involving a restriction of rights⁵²⁵. Thus, the doctrine highlights the subsidiary role given to the Convention in such cases, and is admittedly a controversial one particularly for the reason that it is applied differently depending on the degree of discretion allowed to the state varying according to the context⁵²⁶. Letsas criticises the Court for controversy surrounding the doctrine of margin of appreciation, which in his view has been caused by a failure to distinguish between what he calls the substantive concept of the doctrine and the structural concept of the doctrine. In his view, the substantive concept is most clearly related to the limitation clauses in Articles 8 to 11 of the Convention. The structural concept is essentially

522 Klass and Others v. Germany, plenary judgment of 6 September 1978, Series A 28, § 49.

523 According to Yourow, the origins of the margin of appreciation doctrine can be found in the classical martial law doctrine and in the jurisprudence of the French Conseil d’Etat and other equivalent continental institutions, reviewing the legality of administrative action and discretion.

The term itself has existed in the French legal system as such (marge d’appréciation) but the Ger-man system contains some comparable concepts (see Yourow 1996, p. 14). Yourow names the German principles of Beurteilungsspielraum, Ermessensfehler, Ermessensspielraum, Ermssensmisbrauch, Ermessensüberscheitung, and unbekannte/ unbestimmte Rechtsbegriffe as being close concepts to that of margin of appreciation.

524 Case ”relating to certain aspects of the laws on the use of languages in education in Belgium (Application n° 1474/62; 1677/62; 1691/62; 1769/62; 1994/62; 2126/62), judgment of 23 July 1968. That case shows that the term “discretion” was in fact introduced by the Commission (see section A, § 4).

525 Yourow 1996, p. 21. Such other types of cases include e.g. freedom of expression cases under Article 10 (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A 24, § 47, and Sunday Times v. the United Kingdom, judgment of 26 April 1979, Series A 30, §§ 58 and 59, in which the term “margin of appreciation” is already used), cases concerning the lawfulness of detention under Article 5 (see Weeks v. the United Kingdom, judgment of 2 March 1987, Series A 114, § 50), and cases concerning the right to respect for private and family life under Article 8 (see Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A 45, § 52).

526 Harris & al. 2014, p. 16 and 17.

related to the expression according to which national authorities are better placed to assess what is required by the situation.⁵²⁷ In this respect, Letsas further criticises the Court for rather taking the moralistic preferences of the majority of states (European consensus) as being synonymous with the idea of public morals, instead of leaving it for the national authorities to assess what the moralistic preferences of the majority are. According to him, the original idea (as reflected in the aforementioned Handyside and Sunday Times judgments) was that requirements of morals vary from place to place and from time to time and state authorities are better placed to define and apply these requirements “by reason of their direct and continuous contact with the vital forces of their countries”.⁵²⁸ It is indeed true, in the light of the Court’s case law, that it is sometimes unclear on what basis the Court makes its finding as regards reference to public morals, but on the other hand, some commentators have called for even stronger emphasis on the concept of European consensus by means of comparison, which is for the purposes of this chapter analysed as a separate standard of interpretation (see section 3.4.6 below). However, I would not find the absence of a clear distinction between the different aspects of the margin of appreciation called for by Letsas that problematic. Instead, there could even be a risk of a state getting away with a clear problem in legislation where the Court did not seek to find some common ground for assessment of public morals.

Harris & al. even warn about the risk that as a result of the application of the margin of appreciation a state’s law or conduct might even escape condemnation⁵²⁹. In the light of the analysis of case law in section 4.5 below, I would not find that a huge concern for the Finnish legal system. It is in fact rather seldom that national jurisdictions invoke the doctrine to merely state that there is no interference with rights. In my view, the doctrine of margin of appreciation as such is not that well suitable for being applied at the national level, as it is more a means of shifting the responsibility for the assess-ment of the situation to the national authorities. Rather, in the case of Finnish supreme jurisdictions, they resolve the cases relating to derogation clauses by assessing what is in fact required by the situation and what are the acceptable limits of interference. This does not mean that there would be no protection of fundamental or human rights, but the Finnish supreme jurisdictions have aimed at ensuring the minimum protection even in cases such as national security balanced against the right to privacy. Thus, although national authorities enjoy a certain margin of appreciation in the field of national security, for example, it does not mean that the applicants should be deprived of access to judicial assessment of whether the interference with the right to private life has remained within the acceptable limits. In case such a deprivation takes place, it could give reason to take

527 Letsas 2007, p.81, 85, 90 and 91.

528 Letsas 2007, p. 121.

529 Harris & al. 2014, p. 11.

the case to the European Court of Human Rights under the procedural provisions of the Convention, particularly Article 13 but also other procedural safeguards based on the substantive Convention rights⁵³⁰. As observed by Brems, particularly in those cases were the domestic margin of appreciation is wide, procedural scrutiny by the European Court of Human Rights functions as a check on state discretion, although this scrutiny is not limited to the situations of a wide margin of appreciation⁵³¹. This makes it important to pay attention to the reasoning in the national judgments.

Nevertheless, considering that the principle of margin of appreciation is not based on the Vienna Convention on the Law of Treaties, and it is only seldom known in a national legal system, its application has the potential of creating challenges at the national level or it may be easily applied in situation where it is perhaps not the best option for the interpretation of the Convention article. In this respect, it is particularly the area of restrictions based on public morals under Articles 8 and 10 that may prove challenging⁵³². This has probably been the most usual source of confusion and is closely related to the principle of dynamic or evolutive interpretation explained in section 3.4.9 below. The application of the principle of margin of appreciation is presumably easiest for those legal systems, where it is traditionally known. However, an overview of the national case law of those legal systems indicates that the principle is not usu-ally referred to in connection with the application of the Convention or the case law of the European Court of Human Rights. As regards those legal systems, where it is more usual to have detailed references to case law, one may note that the term margin of appreciation has not existed in the legal language of the English legal system, nor in those of the Nordic legal systems, but in the same way as in the German legal sys-tem, close concepts can be found. For example, in the Finnish legal syssys-tem, the terms

“harkinta” and “harkintavalta” could be used, and the closest Swedish equivalent would be “prövning”. Perhaps that explains that in some national case law in Finland, the concept of margin of appreciation has been referred to as a justification for derogations from the Convention right, as explained in section 4.5 below.

530 For an overview, see Brems 2013, The procedural obligations under substantive provisions, such as Articles 8 and 10, may be both positive and negative obligations on states, although this distinction is not always that clear. At any rate, it may be necessary for the Court to verify the quality of domestic legislation from the point of view of whether it affords sufficient procedural protection against arbitrary interference (p. 139), and the absence of such safeguards could even result in a violation of the substantive right under the Convention article in question for the reason that the right cannot be effectively enjoyed without effective procedures (p. 147).

531 Brems 2013, p. 160. In the view of Brems, a finding of deficient procedural safeguards should automatically lead to a narrow margin of appreciation, leaving less room for domestic authorities to restrict human rights.

532 This is also named by Letsas who refers to the idea that in those cases where there is no uniform conception of public morals in Europe, the national authorities are better placed to assess the local values. (Letsas 2007, p. 91)

When compared with the principles of autonomous meaning and effectiveness, the principle of margin of appreciation has been more beneficial for the respondent Gov-ernments, and it indeed may work to the opposite direction instead of strengthening the protection of fundamental rights and human rights, if not applied with caution.

In the cases where the margin of appreciation has been referred to, some problems of linguistic interpretation have also arisen. On the basis of an analysis of the fragments of discourse cited in the foregoing, one may note that in general, there are hardly any signs of a transition of legal culture linked with the application of the principle

In the cases where the margin of appreciation has been referred to, some problems of linguistic interpretation have also arisen. On the basis of an analysis of the fragments of discourse cited in the foregoing, one may note that in general, there are hardly any signs of a transition of legal culture linked with the application of the principle