Article 1 of Protocol No. 15 to the European Convention on Human Rights (ECHR), once it has been ratified by all the Member States Parties to the Convention, amends the Preamble to the ECHR. More precisely, it holds that a new recital shall be added, reading:
‘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’ [emphasis added].
This new passage has been both cause and manifestation of a critical outlook on the work of the European Court of Human Rights (ECtHR). It was the process leading up to the Brighton Declaration in 2012, characterized by various critical expressions by Member States concerned with the adequate functioning of the ECtHR, which eventually resulted in this attempt to include a reference to the margin into the Convention. At the same time the Protocol brings up questions about what the effect of this addition will be, as well as about what the margin of appreciation should be about in the first place.
In this regard, a recent speech at UCL by Dean Spielmann, President of the European Court of Human Rights, is very insightful. In this speech, he underlines that ‘while, with Protocol No. 15, the margin of appreciation will no longer be a pure creature of the case-law, its insertion into the Convention was achieved in a low-key way’. According to President Spielmann, it was not the intention of the Member States to ‘legislate’ and thereby control the margin of appreciation. Indeed, over the years the margin has become a seemingly indispensible, yet also a very flexible and thereby elusive instrument in the ECtHR’s fundamental rights adjudication.
President Spielmann makes very clear that with ‘a margin of appreciation’ in the new recital, the ‘margin of appreciation as developed in the Court’s case-law’ is meant, implying that it will retain its malleability while being applied at the sole discretion of the Court. Yet his speech is also forward-looking in the sense that it gives some hints regarding where the development of the margin is likely to go. He distinguishes a ‘margin within a margin’, applicable when States not only have leeway regarding whether they regulate something in the first place, but if so, also with regard to the way they do it. A ‘margin upon a margin’, then, refers to the situation of a conflict between rights where the state has some leeway in interpreting both of the applicable rights—and thereby also the balance between them. Most interesting, however, I find the President’s references to what one might call a ‘procedurally oriented margin of appreciation’. In short, this means that when, at the national level, the different interests have been properly reviewed and balanced against each other in the light of the principles laid out by the Court’s case law, this results in a wide margin of appreciation. President Spielmann speaks of a ‘systemic objective’ of the margin of appreciation: it should be viewed not as a ‘gift’ or ‘concession’, but instead as ‘an incentive to national courts to conduct the requisite Convention review, to balance competing rights, to weigh up rights against other aspects of the public interest, to scrutinize the proportionality of interferences with human rights’.
Hence, once the procedure that has taken place at the national level—including a proportionality test in which due regard is given to Convention principles—is considered adequate, the margin of appreciation will be wide(r), whereas a failure to balance the relevant interests creates more room for the ECtHR to interfere. This procedural understanding wonderfully fits the aim of the Convention to ensure ECHR guarantees, if possible, first and foremost at the national level and by the national courts. More generally, I think an emphasis on procedural requirements might be worthwhile in bringing about substantive rights protection under the Convention. Nevertheless, there are a few things that leave me somewhat puzzled. First, how does a foremost procedural margin relate to the Court’s often repeated statement that the ‘margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions’? Arguably, these considerations allow for a lot of differentiation depending on the weight of the right at stake, the seriousness of the interference, the measures concerned etc. Are these concerns being replaced by the question of procedural adequacy, or is the latter only one of the insights—together with the ones the Court so often mentioned—that determine the margin? Secondly, what exactly are the principles or criteria laid down in the Court’s case law that have to be considered? Does this only refer to unambiguous and settled general principles? Or does this requirement in fact imply that it remains very much at the free disposal of the Court to decide whether or not a wide margin applies? And finally, given that procedural safeguards at the national level should indeed be considered important, does it really make sense to frame them as factors determining the margin of appreciation?
In two relatively recent Roma housing cases, Yordanova and Others v. Bulgaria and Winterstein and Others v. France, the Court had to deal with the question of whether the (ordered) removal of a group of Roma people and the extent to which the authorities had (not) arranged for alternative housing suiting the needs of Roma, violated Article 8 of the Convention. In presenting the applicable margin the Court had explicit regard to the procedural safeguards that had been available, and more concretely, to whether a proportionality test had been conducted by the national authorities. Important was, moreover, whether this proportionality test had taken into account the specific interests of the Roma concerned, their vulnerability and risk of becoming homeless. Indeed, thus, this was a classical instance of where the State was required to balance the competing interests at stake, in the light of some more substantive concerns. The judgments remain unclear, however, on the issue of whether these ‘procedural’ conditions in the end led to a specific margin of appreciation, or more directly formed the reason for finding a violation. Uncertain as well is whether procedural shortcomings can be outbalanced by other margin-determining factors: in both cases the Court namely also held that in spheres involving the application of social or economic policies the applicable margin is a wide one.
Indeed, in both Yordanova and Others and Winterstein and Others the importance of procedural safeguards is very obvious, yet the exact role and meaning of the margin seem to get even more confusing than they usually already are. It is completely understandable that in dealing with sensitive, budgetary matters like housing policy, the Court takes a deferential stance towards decisions taken at the national level, while aiming at effective protection for the vulnerable individuals concerned. But instead of obfuscating things by trying to put this all into the determination of the margin of appreciation that in the end is only (if at all) concretized in a very abstract way, is it not possible for the Court to opt for a more transparent approach? One suggestion would be that—especially in cases concerning sensitive socio-economic policy where it is difficult for the Court to come up with a substantive outcome in the first place—the Court frames the relevant procedural safeguards not as being important for the margin of appreciation, but rather as minimum requirements that in any case have to be met. Such procedural ‘core’ requirements have been mentioned before (see for example here), and are moreover in line with experiences in the context of economic and social fundamental rights that suggest that a focus, first and foremost, on procedural guarantees provides a promising route towards protection. Hence, introducing procedural requirements as separate, primary requirements might be a more feasible approach. This can guarantee the necessary deference, while ensuring that things do not become even more complicated than they already are.