Strasbourg Observers

The draft Copenhagen Declaration and the Court’s dual role – the need for a different definition of subsidiarity and the margin of appreciation

February 28, 2018

By Janneke Gerards, Professor of fundamental rights law, Utrecht University, the Netherlands

The double-faced role of the Court

One of the recurring topics in all High Level Declarations is the role the European Court of Human Rights (ECtHR or Court) should play in protecting the Convention rights. Article 32 of the Convention stipulates that the Court’s jurisdiction extends to ‘all matters concerning the interpretation and application of the Convention and the Protocols thereto’. The meaning of this provision has always remained somewhat ambiguous. On the one hand, the importance of the Court’s offering individual redress to victims of Convention rights violation has been stressed over and over again (not in the least in the Interlaken Declaration). On the other hand, the Convention’s Preamble discloses that the Convention was originally regarded as a first step towards the ‘collective enforcement’ of human rights. Apparently, offering general protection against human rights violations was considered an important objective, too. In line with this ambiguity, the Court accepted already in 1978 that under Article 32, its task is ‘not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention’. Indeed, the Court is not only famous for its offering of individual justice, but also for its development of hugely influential general doctrines, varying from the ‘pressing social need test’ to the autonomous definitions of notions such as a ‘tribunal’ or ‘property’. In this regard, the Court even can be said to have important features of a constitutional court.

It is not clear which of these two functions – offering individual justice or providing for interpretative guidance – is the more important one. Perhaps it is best to say that the Court has a dual role to play, as De Londras has done in 2013. Indeed, the duality of the Court’s role agrees very well with the overall set-up of the Convention system, as the Court explained in its own response to the draft Declaration. The general standards and principles defined by the Court in its constitutional role help national courts decide on fundamental rights cases. In addition, proper implementation of such standards by national legislators and administrative bodies may prevent Convention rights violations from occurring. General standard-setting by the Court thus enhances the States’ fulfilment of their primary responsibility in respecting and protecting the Convention. The Court’s other role—its task of offering individual protection—then mainly comes into play if States have not sufficiently respected the Convention rights. In that case, the Court acts as safety net and it may provide for individual justice.

Definition of primary and subsidiary tasks in previous Declarations

Accordingly, it is an important task of the Court to define the minimum level of protection that the States must guarantee. In line with Article 32 ECHR, the Court must take the lead in defining core Convention terms and concepts, in setting and refining relevant standards and criteria, and in clarifying how these can be applied in case of doubt. In this respect, the Court plays a primary role. The notion of subsidiarity only comes into play with regard to the application of such standards in individual cases.

Seemingly, this nuanced definition of the subsidiarity principle is embraced by the authors of the draft Copenhagen Declaration. The draft Declaration clearly stipulates that the Conference ‘welcomes that the Court … [provides] important incentives for national authorities properly to fulfil their Convention role’ (para. 27). At the same time, it states that ‘States Parties enjoy a margin of appreciation in how they apply and implement the Convention’ (para. 23). It also emphasises that ‘if a genuine balancing of interests has taken place at the national level, it is not the Court’s task to conduct the proportionality assessment afresh’, and that ‘the Court should not act as a court of fourth instance’ (para 24). The draft Declaration thereby seems to accept that the Court is to play a primary, constitutional court-like role in setting and refining general standards for the interpretation of the Convention. This acceptance is in line with statements and proposals made in earlier Declarations. For example, the Interlaken Declaration stressed the importance ‘of ensuring the clarity and consistency of the Court’s case-law’ (para. 4), while the Brighton Declaration emphasised that the Court should be put in a position to focus on ‘important questions of interpretation and application of the Convention’ (para. 33). To this end, the Izmir and Brighton Declarations also supported the introduction of an advisory opinions procedure. The effect of such a procedure (now laid down in Protocol No 16) will be that the Court can provide general interpretations of the Convention and clarify the applicable standards, even pending national highest courts’ proceedings.

Non-acceptance of the consequences?

The various High Level Declarations suggest that the States agree with the primary constitutional role played by the ECtHR. Logically, this can only mean that they accept the general standard-setting by the Court and that they agree that they have to implement these standards and interpretations in their own national legislation, decisions and case-law. However, it is at this point that many national politicians and national media appear to show some hypocrisy. In fact, the Court is often criticised for not sufficiently respecting its proper position within the Convention system, as defined by the principle of subsidiarity. Interestingly, in most cases, this criticism does not concern an overly strict review of a national court’s concrete balancing exercise, or its acting as a ‘court of fourth instance’, as the draft Declaration seems to suggest in para. 25. Usually, the criticism goes to the very heart of the general standards developed by the Court. It pertains, for example, to the principles the Court has defined to strike a balance between state neutrality and freedom of religion; to standards regarding the personal scope of the right to vote; to guarantees that generally should be provided when hearsay evidence is dealt with; or to general procedural guarantees that should be offered in relation to decisions on life imprisonment.

Although the States thus seem to embrace the Court’s constitutional role and even appear to want to enhance its function of standard-setting, apparently they do not like to accept the consequences of this. But they cannot have their cake and eat it, too. Either national politicians have to accept that the Court is exercising its primary task of interpreting the Convention, even if its standards may be controversial, or they need to reject the Court’s interpretative and constitutional role altogether, and by doing so, accept they are striking at the very roots of the Convention system.

The margin of appreciation doctrine and variable intensity of review

It would be much more in line with the Convention system’s design if the States were to accept that the principle of subsidiarity really only concerns the application of the general standards to concrete cases. This also would be in agreement with the function of the margin of appreciation as it was originally conceptualised. In that conceptualisation, the margin of appreciation is a tool for variation of the intensity of review in concrete cases, much comparable to doctrines of deference or judicial restraint used by national administrative courts.

Indeed, the Court has consistently held that the scope of the margin of appreciation is variable; in some cases it may be wide, in other cases it will be narrow. It will determine the scope of the margin based on a number of factors it has defined in its case-law, such as the nature of the Convention right in issue, its importance for the individual, the nature of the interference, and the object pursued by the interference (see e.g. S and Marper v the United Kingdom, para. 102). The margin tends to be narrow if a concrete interference with a fundamental right goes to the very core of an important right or freedom or if an interference is very serious and far-reaching in nature (idem). After all, if such important aspects of rights have been affected, an a priori suspicion may arise with the Court that the competent authorities have not sufficiently respected the Convention standards. It is then fully reasonable that the Court takes a close look at the reasonableness of exactly this interference in this particular case. This may be different if an interference relates to more peripheral aspects of rights, if it is not particularly serious, or if the national authorities are better placed to estimate the necessity and proportionality of a concrete decision or a concrete piece of legislation. In those cases, there is less reason to be suspicious of the national decision or the national legislation, and therefore the Court can reasonably exercise judicial restraint.

Admittedly, this is not how the Court always uses its margin of appreciation doctrine. A qualitative analysis I have made of a large body of recent case-law discloses that the Court’s references to the doctrine are usually rhetorical rather than substantial, in that the margin of appreciation is only rarely directly connected to the intensity of the Court’s scrutiny (J.H. Gerards, ‘Dealing with Divergence. Margin of Appreciation and Incrementalism in the Case-Law of the European Court of Human Rights’, Human Rights Law Review (2018) (forthcoming)). Thus, where the authors of the draft Declaration state that ‘the Court has engaged in a process of more robustly applying the principle of subsidiarity and the margin of appreciation in its case-law’, it is probably this almost ritual incantation they are referring to.

At the same time, my case-law analysis also disclosed that the Court does vary the intensity of review according to the facts and circumstances of each individual case and that it does exercise judicial restraint. It only does do so in a different way than by actually using the margin of appreciation doctrine in its intensity-determining function. The Court’s preferred approach to show deference to the national authorities appears to be to apply its general standards in a highly individualised manner to the facts of a concrete case. In doing so, it takes account of the specific context, of the amount of procedural due care taken on the national level, and of what is at stake for the applicant and for the respondent State. The Court thereby clearly leaves leeway to the States in ‘how they apply and implement the Convention’ (draft Declaration, para. 23). It thus acts in full agreement with its subsidiary position, as the Court has stressed in its response to the draft (para. 13), but usually without actually using the margin of appreciation doctrine.

Rewriting the draft Copenhagen Declaration

Given the above, the draft Declaration does not realistically reflect the foundations of the Convention system, the meaning of the notion of subsidiarity and the actual use of the margin of appreciation doctrine by the Court. If any attention at all is paid in such a declaration to what the Court ought to do and how the Court ought to behave (which is controversial because of the independent position of the Court), it would be better, firstly, to expressly recognise the Court’s primary role in standard-setting and interpretation of the Convention, which it exercises based on Article 32 of the Convention. Secondly, it would be important to stress that it is part of the States’ responsibility to accept these general standards and apply them in their case-law, administrative decisions and legislation. Thirdly, it could be mentioned that the principle of subsidiarity should guide the Court in its concrete application of these general standards to the facts of individual cases, but it should also be expressly accepted that this very principle entails that it is still the Court’s task to see if the States have sufficiently fulfilled their obligations. It should be accepted that it is fully reasonable for the Court to take a closer look at a justification in a concrete case if there are indications of the contrary, and it is up to the Court to see whether such indications are present. It is also up to the Court to decide how the principle of subsidiarity can best be respected and when and how it should exercise judicial restraint. Only such recognitions would really do justice to the dual role of the Court, which forms the very core of the Convention system.


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