The Margin of Appreciation in the ECHR

via ECHR BlogThe ever-informative ECHR blog brings news of an interesting article on the margin of appreciation jurisprudence of the European Convention on Human Rights (which has been examined on this blog here and here). It is the doctrine by which the ECHR affords Members States some initial latitude to assess the impact of a restriction upon a Convention right; the Court takes the view that national authorities are usually better placed to determine the particular circumstances of an individual case; and it often shows greater forebearance where important national interests and diverse social and moral convictions are at stake. But it is a doctrine developed by the Court itself rather than one rooted in the text of the Convention, and it is a deeply contentious issue. The article traces the debates surrounding the doctrine, and locates them in a current complex social, cultural and religous controversy.

From the introduction and the conclusion:

Raffaella Nigro “The Margin of Appreciation Doctrine and the Case-Law of the European Court of Human Rights on the Islamic Veil” (2010) 11 (4) Human Rights Review 531-564

In its judicial activity, the European Court of Human Rights increasingly resorts to the margin of appreciation doctrine as a means of granting States the discretionary power to adopt, both positive steps to comply with the European Convention on Human Rights and steps which, although interfering with some of the rights and freedoms sanctioned by it, are considered to be justifiable because they are necessary to preserve public order and/or to protect the rights and freedoms of others in a democratic society. However, the margin of appreciation doctrine does not appear in the text of the European Convention or in its drafting history. This is the reason why, on several occasions, legal scholarship has examined the legal basis of such doctrine and questioned the consequences of the use the European Court makes of it within the protection of the human rights system. Manifold theories have thus been put forward justifying the Court’s recourse to the discretionary power of States. As we shall illustrate, these theories offer only a partial, yet insufficiently clear, explanation of the margin of appreciation doctrine. This is apparent in the European Court’ case-law on the Islamic veil — lastly in the recent admissibility decisions of 30 June 2009 in Aktas v. France, Bayrak v. France, Gamaleddyn v. France and Ghazal v. France — in which the power granted to some State authorities to ban the headscarf, seems to have been used by the Strasbourg judges to set general principles, in a manner and for purposes that are incompatible with the discretionary powers of States. Before analysing the margin of appreciation doctrine in the European Court’s jurisprudence on the Islamic veil, we should briefly analyse the most significant judgments through which the Court has set the enforcement criteria of the margin of appreciation; and the main theories in legal academic literature, in order to better understand how the approach followed in the case-law on the Islamic veil draws away from both the previous jurisprudence of the Court and the scholars’ contributions and comments on the subject. …

The analysis of the judgments of the European Court on the Islamic veil provides a substantially different example of the application of the margin of appreciation compared to previous jurisprudence and doctrine.

Although on the basis of the principle of subsidiarity, the Court confines itself to examine and assess the decisions taken by national authorities, this does not mean that it always refrains from giving some guidance to States on matters not expressly dealt with by the Convention. By associating the veil to Islamic fundamentalism, gender discrimination and implicitly to a proselytising effect incompatible with the European Convention, the Court has clearly meant to state that it is hardly compatible with European values, thus steering the attitude of Contracting States within their own legal systems actually disclaiming their discretionary power on the subject matter. Nor can the jurisprudence on the veil be explained as a form of respect for Turkey’s sovereignty, being possible on the contrary to point out how the judges did refer to the national authorities’ discretionary power, but then stated, although not explicitly, a general principle applicable to all States. To this extent, the jurisprudence on the Islamic veil can be intended as an answer to the criticism expressed by some legal scholars according to whom the Court, by giving a margin of appreciation to States would escape its responsibility to take a stance on the merits thus leaving this task to national authorities.

Moreover, with reference to the theories on the consequences of its application in the European human rights protection system, the jurisprudence under examination appears to scale down the concerns of “universalists”, to the extent that the Court has expressed a general and uniform principle on the Islamic veil, but also the expectations of the supporters of cultural diversity. Bearing in mind, we consider that the specific Turkish context has been taken into account only with the aim of expressing a principle potentially applicable in all States parties to the European Convention.

If a margin of appreciation on the Islamic headscarf matter would have been recognised to national authorities, in terms of a discretionary power of which the compatibility with the European Convention would have to be evaluated case by case, it would have been reasonable to expect that the measure adopted in Switzerland or in France would not have been automatically considered to be compatible with the Convention if adopted in Turkey, or the ban imposed on teachers as comparable to that imposed on students. Alternatively, the European judges could have taken into account the specific circumstances of each case, in order to draw different conclusions as to the compatibility of the ban with the Convention according to whether the veil was worn in public schools (or conversely in private ones), either by teachers or by students; in universities or in secondary schools, or whether it threatened the neutrality of the State or it contributed to Islamic fundamentalism; or, again, whether it was perceived as a religious duty or as the mere expression of a tradition; or whether it was part of a general prohibition extended to any religious symbol; or, finally, whether it raised security concerns or problems of identification of the person wearing it.