Dear readers, it is my pleasure to host another guest post on this blog. This time by dr Kanstantsin Dzehtsiarou of the University of Surrey. He has written some short comments on the very recent Open Letter of a group of leading human rights NGOs directed at all ECHR state parties. The letter, published on 15 April, reflects the concerns of the NGOs about the way the margin of appreciation is mentioned in the proposed amended preamble to the Convention. As most readers will know, currently the notion of the “margin of appreciation” does not explicitly feature in the Convention, but has been developed in the Court’s case-law. The NGOs recommend to change the wording by adding one single word: ‘may’. Please read the commentary on this particular point:
Normal
0
21
false
false
false
EN-GB
X-NONE
X-NONE
/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-priority:99;
mso-style-parent:””;
mso-padding-alt:0cm 5.4pt 0cm 5.4pt;
mso-para-margin-top:0cm;
mso-para-margin-right:0cm;
mso-para-margin-bottom:10.0pt;
mso-para-margin-left:0cm;
line-height:115%;
mso-pagination:widow-orphan;
font-size:11.0pt;
font-family:”Calibri”,”sans-serif”;
mso-ascii-font-family:Calibri;
mso-ascii-theme-font:minor-latin;
mso-hansi-font-family:Calibri;
mso-hansi-theme-font:minor-latin;
mso-bidi-font-family:”Times New Roman”;
mso-bidi-theme-font:minor-bidi;
mso-ansi-language:EN-GB;
mso-fareast-language:EN-US;}
Much Ado About
NothingDr Kanstantsin Dzehtsiarou
On 15 April 2013, a number of well-known and highly respected NGOs
including Human Rights Watch, European Human Rights Advocacy Centre, Helsinki
Foundation for Human Rights and others sent an open
letter to the Ministers of Foreign Affairs and Permanent Representatives of
all member states of the Council of Europe urging them to change Article 1 of the new
Protocol 15. In the letter, the NGOs criticise the wording of the provision.
According to Article 1 of Protocol 15 the following statement should
be added to the Preamble of the Convention: “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 in doing so enjoy a margin of
appreciation, subject to the supervisory jurisdiction of the European Court of
Human Rights established by this Convention.” This amendment is the direct
consequence of the Brighton
Declaration (2012) according to which “for reasons of transparency and
accessibility, a reference to the principle of subsidiarity and the doctrine of
the margin of appreciation as developed in the Court’s case law should be
included in the Preamble to the Convention…” (para 12b).
The letter of the mentioned NGOs emphasises that the doctrine of the
margin of appreciation is not applicable in relation to certain rights enshrined
in the Convention and that this aspect of the doctrine is not properly
reflected in the wording of Article 1 of Protocol 15. They mention that “the
current text of Article 1 of draft Protocol 15 is open to interpretation
contrary to … long-standing reality of the Court’s practice when it makes the
unqualified assertion that when implementing the Convention rights and freedoms
states “enjoy a margin of appreciation”, thus appearing to ignore that no such
margin of appreciation exists when it comes to implementing provisions such as
those on the prohibition of torture or slavery”. The NGOs suggest changing the
wording of Article 1 of Protocol 15 from “the States enjoy a margin of
appreciation” to “the States may
enjoy a margin of appreciation”.
To my mind this battle around the margin of appreciation is much ado
about nothing. The doctrine of the margin of appreciation was developed by the
European Court of Human Rights itself, without this doctrine being mentioned in
the Convention. The Court has been applying this doctrine since the Handyside
case in the 1970s. It is unclear how the reference to the margin of
appreciation in the Preamble to the Convention will influence the
interpretation of the Convention by the Court. One can recall that the Court
mentions the Preamble quite rarely and one can argue that it has predominantly
a rhetorical value rather than a legal one. One can, however, suggest that after
been included into the Preamble the doctrine of margin of appreciation will be
more often invoked by the member states both in their submissions to the Court
and in public speeches. Having said that, the states’ officials use the margin
of appreciation extensively in their rhetoric without it being a part of the
Preamble.
Before turning to the amendment suggested by the NGOs, I would like
to briefly summarise the meaning of the margin of appreciation. Despite being
used in a significant number of cases, the definition and the boundaries of the
margin of appreciation cannot easily be established. The
Court has never clearly defined what it means by ‘margin of appreciation’. In
academic literature, the margin of appreciation has been defined as ‘the
latitude allowed to the member states in their observance of the Convention’ or
as a way to distinguish matters that can be decided at the local level from the
matters that are so fundamental that they should be decided regardless of cultural
variations. Another reason why the mentioning of the margin of appreciation
would have little impact is because it is hardly possible to clearly define
where the margin of appreciation ends and the Court’s supervision begins. As
Lord Lester famously stated, the margin of appreciation is as slippery and
elusive as an eel. The draft Brighton Declaration which was proposed by the UK
suggested inclusion of the definition of the margin of appreciation in the text
of Convention. This suggestion luckily was not adopted because it would have been a legal drafting disaster as mentioned above.
It seems that the letter from the NGOs is designed to minimise
the damage of explicitly including the doctrine of margin of appreciation in the Preamble – an inclusion which I believe
will not have noticeable effects anyway. The amendment suggested by them will do even
less than the inclusion of the doctrine of the margin of appreciation itself. The
NGOs mentioned that the doctrine of the margin of appreciation is not applicable in
relation to some provisions of the Convention (the prohibitions of torture and
slavery). One should recall, though, that these articles enshrine
procedural obligations and not only substantive ones. It is clear from the
Court’s case law that there is no margin of appreciation in relation to the
question of whether to torture someone or not but the State can have some
margin in deciding what the best way is to investigate torture. Alternatively
in relation to slavery – there is no one uniform legal regime in implementing the prohibition of
slavery – the States are able to choose between certain alternatives.
