THE MARGIN OF APPRECIATION DOCTRINE
I. In general, the margin of appreciation means that a state is allowed a certain measure of discretion, subject to European Supervision, when it takes legislative, administrative, or judicial action in the area of a Convention right.
II. Handyside v. UK: First explained this doctrine.
a. Issue: Whether conviction for possessing an obscene article could be justified under Article 10(2) as a limitation upon freedom of expression that was necessary for the protection of morals.
b. 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 those requirements as well as on the necessity of a restriction or penalty intended to meet them.
i. Nevertheless, Article 10(2) does not give the contrating states an unlimited power of appreciation. The Court, which, with the Commission, is responsible for ensuring the observance of those states’ engagements, is empowered to give the final ruling on whether a resturction or penalty is reconcilable with freedom of expression as protected by Article 10.
III. Also applied to the following Articles
a. Article 8, 9, 10, 11
b. Article 1, First Protocal
c. Article 5
d. Article 6
e. Article 14
f. Article 15
g. Wide margin of appreciation respecting admissability/evaluation of evidence in trials.
IV. Different application and discretion in different contexts
a. Public emergency, some national security, public morals, social & economic policies: Wide Discretion
b. It also be wide when there is no consensus within the member states either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly wehere the case raises sensitive moral or ethical issues.
c. Wide margin also if the state is required to strike a balance between competing interests or convention rights.
d. BUT, there is a limited margin of appreciation where a particularly importance facet of an individual’s identity or existence is at stake, and is reduced almost to vanishing point in certain areas, as wehre the justification for a restriction is the protection of the authority of the judiciary.
V. Arguments for and against margin of apprection: 13-14.
VI. The Substantive Concept of the Margin of Appreciation
a. (1) State authorities are justified in taking measures, prescribed by law, in order to advance collective goals. (2) While such measures may interfere with fudnamental freedoms of the individual, such interference may not amount to a violation of his or her rights.
b. FOUR Part Test for Margin of Appreciation
i. Whether there was an interference with a Convention freedom.
ii. Whether the interference was prescribed by law.
iii. Whether the purpose of the interference falls within the list of legitimate aims mentioned in the accomodation clauses.
iv. Whether the interference was proportionate or ‘necessary’ in a democratic society or whether there was a ‘pressing social need’ for it.
c. The proportionate element is the most demanding and important. The idea is that there must be a fair balance between individual rights and collective goals. The Court is asking whether the interference is permissible all things considered, NOT whether it falls within the state’s margin of appreciation.
VII. The Structural Concept of the Margin of Appreciation
a. Many view it as a feature of a supra-national judicial system, designed to balance the sovereignty of the contracting states with the need to secure protection of the rights embodied in the Convention
b. The reviewing power of the ECHR should be more limited than a national constitutional court.
c. Cases where the Court has said that national authorities are better placed and thus the Court should defer to their judgments
i. Where there is no consensus among the contracting states.
ii. Politically sensitive issues within a particular Contracting State. (This includes derogation under Article 15 paragraph 1.)
d. Court also does not want to be a fourth instance court.
ARTICLE 9: Freedom of Thought, Conscience, and Religion: The Right to Believe
I. Internal and External Dimensions
a. Forum Internum: It guarantees “freedom of thought, conscience, and religion” exercised inside and individual’s heart and mind, and thus falls beyond state jurisdiction and must not be restricted.
b. Forum Externum: It recognizes that everyone has the right to manifest a religion or belief in worship, teaching, practice and observance.
i. Thus, subject to the ‘prescribed by law’ and ‘necessary in a democratic society’ criteria, the state may impose restrictions on the manifestation of religion or belief on the grounds of public safety, public order, health, or morals and for the protection of the rights and freedoms of others.
c. Buscarini and others v. San Marino: Court held that requiring applications to swear an oath on the Christian Gospels to take a seat in Parliament was a limitation within the meaning of the second paragraph of Article 9. BUT, the court did not say that this violated the forum internum. Instead, it said an oath was not ‘necessary in a democratic society under 9(2).
II. Certain conduct is undoubtedly contrary to the forum internum
a. Physical threats or sanctions forcing people to deny or adhere to particular beliefs.
b. The right to change one’s religion or belief is a bulwark against state indoctrination.
c. Cannot dictate or demand to know what an individual believes.
III. Z and T v. UK: Article 9 offers “very limited assistance” where an applicant claims that they will be
tate’s failure to distinguish his case from more serious offences meant that 14&9 had been violated.
c. Courts sometimes go to Art 3 (degrading treatment) and 5 (unlawful detention) to deal with applicants who refuse to perform military service.
VI. Manifesting Religion or Belief in Worship, Teaching, Practice, and Observance
a. Arrowsmith v. UK: The term “practice” does not cover each act which is motivated or influenced by a religion or belief. Thus, the distribution of leaflets to soldiers advising them to go absent to refuse to serve was held not to be a practice of pacifist belief, whereas public declarations proclaiming the idea of pacifism would fall within 9(1).
b. The jurisprudence can being the court dangerously close to adjudicating the theological merits of a belief or practice, something it is ill equipped to do.
c. *The Court is getting away from “necessity” assessment and may be using a presumption of bona fide manifestations.
d. The Public Manifestation of Religion or Belief
i. There is no interference with the manifestation of religion or belief when a person voluntarily accepts a position whereby curbs are placed on the free exercise of their religious beliefs.
1. Thus, a minister of religion has no claim against his religious organization because he is free to resign and leave.
ii. Kalac v Turkey: Dismissal of airforce officer for his ties with a Muslim group not a violation because of the contractual nature of his employment and his free choice to forego certain rights by his career in armed forces.
iii. Stedman v UK: Rejected Christian’s complaint that her resignation was based on her refusal to work on Sundays because she was free to resign and did in fact resign.
VII. Justifiable Interferences
a. Under 9(2), a restriction on the manifestation of one’s religion or belief may be justified if it is (1) prescribed by law, (2) has a legitimate aim, (3) is necessary in a democratic society.
b. Prescribed by Law
i. A law must be adequately accessible and formulated with sufficient precision to enable the citizen to regulate his conduct.
1. Hasan and Chaush v Bulgaria: The government’s replacement of the Chief Mufti was not prescribed by law because it was arbitrary and was based on legal provisions that permitted unfettered discretion.
