The Doctrine of the Margin of Appreciation at the European Court of Human Rights: Weakening or Maintaining the Role of the Court?

Avrupa İnsan Hakları Mahkemesi’nin Takdir Yetkisi Doktrini Mahkemenin Etkililiğini Zayıflatmakta mıdır, Muhafaza Etmekte midir?

Kıvılcım Ceren BÜKEN

The doctrine of the margin of appreciation at the European Court of Human Rights has given rise to much discussion from its initial use onwards, on whether it undermines the universality of human rights and weakens the role of the Court in the protection and advancement of human rights. Under the pending entry into force of Protocol No. 15 which will introduce the doctrine into the Preamble of the European Convention on Human Rights, this article aims to offer a discussion on the arguments for and against the margin of appreciation, concluding that while the use of the doctrine weakens the role of the Court in many ways, it also helps maintain the role of the court by serving the purpose of a strategic tool to uphold political non-disapproval upon which the influence of the Court, as it is after all an international court, depends.

Margin of Appreciation, European Court of Human Rights, Universality of Human Rights, Protocol No. 15, International Human Rights Law.

Avrupa İnsan Hakları Mahkemesi’nin “takdir yetkisi doktrini” ortaya çıkışından bu yana insan haklarının evrenselliğini gözardı ettiği ve mahkemenin insan haklarının korunması ve gelişmesinde oynadığı rolü zayıflattığı yönünde pek çok eleştiriye hedef olmuştur. Bu makalede takdir yetkisi doktrinini Avrupa İnsan Hakları Sözleşmesi’nin önsözüne ekleyecek olan 15 Numaralı Protokol’ün yürürlüğe girmesini beklediğimiz mevcut durum da göz önünde bulundurularak doktrinin leh ve aleyhindeki görüşler değerlendirilecek, doktrinin mahkemenin etkisini pek çok yönden zayıflattığı kabul edilmekle birlikte nihayetinde uluslararası bir mahkemenin etkililiğini sürdürebilmesinin siyaseten reddedilmemesine bağlı olduğu ve doktrinin de mahkemenin rolünün muhafaza edilmesinde ihtiyaç duyulan stratejik bir araç olarak işlev gördüğü savunulacaktır.

Takdir Yetkisi Doktrini, Takdir Marjı, Avrupa İnsan Hakları Mahkemesi, İnsan Haklarının Evrenselliği, 15 Numaralı Protokol, Uluslararası İnsan Hakları Hukuku.

I. INTRODUCTION

The margin of appreciation is one of the most controversial concepts of the European Court of Human Rights. The controversy is rooted in many factors, age-old questions such as whether allowing the states a certain margin of appreciation puts the universality of human rights at stake, whether an international court has a choice to do otherwise, along with suspicions that the doctrine is giving way to uneven and unjust, even biased decisions due to the lack of uniform application of the doctrine itself. This article will examine the use of the margin of appreciation by the Court and review the arguments for and against the doctrine to come to the conclusion that although the doctrine of the margin of appreciation has its drawbacks and it can be said that it weakens the role of the Court to some extent, the Court as an international court that stands on political support has to maintain a balance between its ache for universality and its need for political approval which ensures the survival of the Court’s influence, and the margin of appreciation is a very useful tool for the achievement of this purpose.

II. DEFINITION AND LIMITS OF THE MARGIN OF APPRECIATION

The margin of appreciation can be said to be the result of the need of the Court to strike a balance between the need for uniform and effective rights protection and respect to diversity in Council of Europe states which derives from the divergence of standards of fundamental rights in Europe, due to different states having different legal traditions, constitutional values and historical developments.¹ Even though the concept of the margin of appreciation is not yet in the text of the European Convention on Human Rights² and it was judicially developed by the European Court of Human Rights,³ it has been around for quite some time. In 1958 the doctrine was implicitly applied for the first time by the European Human Rights Commission in the Greece v. The United Kingdom⁴case, concerning a derogation clause at a time of emergency,⁵ which concerned article 15 of the Convention. Later the margin of appreciation was extended to other, non-emergency related provisions,⁶ while originally applied in the context of derogations, it has now spread to all substantive articles and today it is very widely used by the Court, as a doctrine of judicial self-restraint.⁷ The Brighton Declaration on the Future of the European Court of Human Rights⁸ of 2012 contained many references to the margin of appreciation and the principle of subsidiarity, stating that the conference welcomes the development of such principles and encourages the Court to give “great prominence” to and apply consistently these principles in its judgements.⁹ As a result of the conference concluding that for reasons of transparency and accessibility a reference to the principle of subsidiarity and the doctrine of margin of appreciation should be included in the Preamble to the Convention,¹⁰ “Protocol No. 15 Amending the Convention on the Protection of Human Rights and Fundamental Freedoms”¹¹ prepared in 2013 includes an Article that will add to the preamble to the Convention a new recital that reads: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”. Protocol 15 has not yet come into force, but it is safe to say that the doctrine that was developed by the Court has now been endorsed by state parties.¹² This endorsement has been deemed dangerous by several scholars and NGO’s, arguments of which will be further elaborated in the section of this article titled “Arguments For and Against the Structural Concept of the Margin of Appreciation”.

Since the principle of subsidiarity and the margin of appreciation seem to go hand in hand in the Brighton Declaration and Protocol 15 alike, it is important to take a look at the principle of subsidiarity and how it is thought to be the starting point of the margin of appreciation. Several norms in the Convention indicate that the role of the Court is subsidiary to that of member states, with Articles 1 and 13 asserting that national authorities are primarily responsible for securing the rights and freedoms provided by the Convention and that national authorities are obliged to make effective remedies available to those under their jurisdiction.¹³ Article 35 of the Convention makes it necessary to exhaust domestic remedies before seeking judgement from the Court.¹⁴ Some argue that the principle of subsidiarity is mainly of procedural nature and that the way it is interpreted to give way to such a substantive concept as the margin of appreciation is far fetched. This argument will also be further examined under the title, “Arguments For and Against the Substantive Concept of the Margin of Appreciation”.