The limits of interpretation of the Strasbourg Court and the principle of non-regression

By Vassilis Chirdaris[1]

 

I. Introduction

The European Court of Human Rights (hereinafter Court or ECtHR) has two special features in comparison to national tribunals: first, it enjoys superiority in the field of authentic interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ECHR or Convention), the interpretation and application of which constitutes its own unique subject and second, it has the disadvantage of not being able to engage in an unlimited interpretation of the Convention.

Undoubtedly, the ECHR, which is a general[2], abstract and ‘poor’ human rights Convention in comparison to the more recent American Convention on Human Rights (ACHR)[3] and the International Covenant on Civil and Political Rights (ICCPR)[4], requires jurisprudence in order to become a living convention and fulfill its aims.

After 52 years in operation, the ECtHR has managed to establish itself on an international scale as the prime model for all human rights courts and forums. Moreover, the Strasbourg Court is the main source of jurisprudence for domestic courts, regional courts, international courts and institutions all around the world[5]. The Court is regarded as the ‘navel of the earth’ when it comes to human rights. In essence, it has rendered abstract rights into effective, practical rights in action. Through its work, these rights have become mandatory and applicable throughout Europe[6].

The most basic tool of the Court is interpretation and the Strasbourg Court has the jurisdiction to interpret the ECHR both in the context of individual or international actions as well as in the context of its advisory function[7]. The extent of the Court jurisdiction applies to all matters concerning the interpretation and application of the Convention and its Protocols, which are submitted to it under the conditions provided in articles 33, 34, 46[8] and 47 of the Convention[9]. However, it has no jurisdiction to interpret the Convention in a more general way with regard to the content and the extent of the rights and freedoms as they are defined in articles 2-18 of the Convention[10], contrary to the Commissions which are able to interpret the UN Conventions and are able to do so through general observations and/or general recommendations.

Under article 46 of the Convention, the Court judgments produce a precedent between the litigant parties and the member states are under the obligation to implement its final judgments. Beyond this, however, the interpretation of the Court with regard to the content and application of the rights and freedoms recognized by the ECHR constitutes an interpretative precedent and applies erga omnes[11].

 

II.Limits and types of interpretation of the Strasbourg Court

The ECtHR is not allowed to interpret the Convention using all types of interpretation provided in national or international rules.

From the very beginning, the Council of Europe and its member-states have wanted to determine the margins of interpretation of the ECHR, thus delimiting the jurisdiction of the court within an institutional context, namely that of the Convention itself.

Thus, in the text of the European Convention the following provisions are provided:

  1. Under article 1 (preamble) of the ECHR there is express and explicit reference to the aim of the Council of Europe, which is “…the achievement of greater unity between its members and that one of the means by which this aim is to be pursued is the maintenance and further realization of human rights and fundamental freedoms”.
  2. Under the same article there is reference to taking appropriate measures to secure and guarantee the rights and to taking account of the universal and effective application of the rights,
  3. Under the same preamble of the ECHR there is express reference: i) that the maintenance of the rights is based on democracy and ii) that the rule of law constitutes the basis of the effective application of the rights,
  4. Under article 19 of the ECHR the exclusive purpose of the constitution of the Strasbourg Court is determined explicitly as being no other than ensuring the observance of the engagements undertaken by the High Contracting Parties in the Convention deriving from the Convention and its Protocols,
  5. Under article 32 the jurisdiction of the court is extended to all matters concerning the interpretation and application of the Convention under the conditions provided in par. 1 of the same article,
  6. Under article 53 an interpretative rule is provided for the Court, according to which the Court has no interpretative allowance to restrict or curtail established rights either by national law or by another international Convention.

The aforementioned provisions are supplemented by the provisions under article 46 of the ECHR concerning the mandatory effect and enforcement of the Court’s judgments by the Contracting States and under article 1 of the Convention.

In addition to the aforementioned provisions, the Vienna Convention on the Law of Treaties, in particular articles 31[12], 32 and 33 therein, also constitute a source of law for the interpretation of the ECHR as an international convention. The Vienna Convention treats the purpose and object of the agreement as a basis for its interpretation. It must be noted that the Vienna Convention has played a secondary role in Strasbourg jurisprudence[13], where only some relevant references are to be found. There are indeed very few references of the Court in the Vienna Convention. This is indicated by the fact that there are only 60 such references included in its judgments[14] out of a total of over 13,700 judgments[15].

From all the above the following principles and possibilities of interpretation by the Court[16] arise:

  • Prohibition of restrictive interpretation. The Court has no jurisdiction of restrictive interpretation of the Convention[17], as no such right is conferred. Moreover, under the aforementioned provisions this type of interpretation is prohibitive.
  • Grammatical interpretation. The minimum limit of interpretation is the grammatical interpretation, which is not allowed to restrict any right, unless this restriction is explicitly determined within the text of the provision.
  • Interpretation in accordance with national legislation and ratified international conventions. If in the case of the violation under consideration the protective scope of the right is higher and broader within the national law or within an international Convention ratified by the defendant state, then the Court must also include the protection prevailing in the ECHR in its interpretation and is not allowed to restrict the right to Convention level.
  • Teleological interpretation. This type of interpretation is mainly based upon the preamble of the convention but also upon article 31 of the Vienna Convention[18]. It serves the effectuation of the purpose of the convention and the fulfilment of its aim, which is no other than the closer achievement of unity among the member states of the Council of Europe, accomplished through the protection and development of the recognized rights and freedoms by the ECHR. Within this context also falls the obligation of the Court to safeguard[19] the responsibilities of the member states, arising from the Convention and its Protocols. This type of interpretation also requires a specific political context, which is determined expressly as well as qualitatively and quantitatively. This constitutes the prerequisite for the existence of a real democratic regime. Thus, the Convention has a particular political content and can be materialized solely in the context of a democratic regime, which must be a real democracy by content and context (on a qualitative and quantitative level) rather than a procedural one[20]. On the basis of this interpretation the Court reiterates[21] in a series of judgments that the concept of a democratic society and the elements of democracy, such as pluralism, tolerance and so forth. dominate the whole Convention. In the context of the teleological interpretation the following principles and interpretations have been developed as its special aspects.
  • i.The principle of the maintenance of rights and freedoms. The basic obligatory principle of interpretation by the ECtHR is the maintenance of the rights and freedoms provided by the Convention. In this context, the maintenance not only involves the grammatical interpretation of the Convention but must also take account of the form of the right of the applicant under protection as this is finally determined, either as it has been formed by the Court jurisprudence or as it has been determined by the higher protection granted according to the aforementioned paragraph (no. 3). The obligation, namely, of safeguarding includes the increased, in each case, protective scope of the right. This type of interpretation has a defensive function with regard to the rights.
  • ii.Evolutionary interpretation[22]. The development of the rights and fundamental freedoms also constitutes an additive type of interpretation by the Court. This type of interpretation is of a dynamic character and constitutes the evolutionary part of the Court jurisprudence[23]. This type of interpretation is, in principle, potential for the court[24]. However, it is not provided by the Vienna Convention, which is more conservative on this matter. The ECtHR is entitled to engage in the development of rights (broadening interpretation). It is within this aspect of interpretation that judicial activism and the hybrid nature of the Court fall under. The first concept is a privilege and a right that Strasbourg is entitled to, whereas the second is an inescapable reality of its character: when a right has already been placed within a propelled evolutionary route through the Court’s jurisprudence, then, if the evolutive form of the right exists only in some of the members of the Council of Europe, the ECtHR is entitled to apply it. However, the application of the progressive form of the right ceases to constitute the Court’s right and becomes an obligation, as long as this form is applied in the majority of the Contracting Parties.

5.Historical interpretation. Subsidiary use, marginalization or extinction? The evolutionary interpretation is based on the grounds that human rights cannot be static, dead or obsolete. They can neither become ‘hostages’ of the initial will of the historical drafters of the Convention, nor can they become trapped in it. The Convention is a living text and the Court almost from the beginning of its operations has accepted by means of fixed jurisprudence that the ECHR is ‘a living instrument’ which must be interpreted in the light of the currently prevailing circumstances, taking account of social and moral change, contemporary perceptions and the scientific change[25]. Therefore, the historical interpretation can only be used in a quite subsidiary and supplementary way (as is also provided in article 32 of the Vienna Convention), where the will of the Convention’s drafter is sought and only within the context of the protection or development of the rights. In no case can this interpretation constitute an autonomous or unique interpretative tool of the Convention. In practice, it has already been marginalized by the Court in terms of jurisprudence[26]

6.Prohibition of interpretation contra legem. Such an interpretation would upgrade the Court to a legislator, which would alter its purpose. Indeed the Court has never used interpretative extremities until today. On the contrary, its interpretation falls within the context of the Convention and displays the feature of self-restraint, perhaps more than that required by the Convention itself as well as by the European citizens. The contemporary evolutive interpretation of the Convention cannot be considered to be interpretated as contra legem.

 

III. The principle of non-regression of rights[27] as a special aspect of the principle of the protection of rights and fundamental freedoms.

A) Content of the principle of non-regression [28]

Directly above there is reference to the principle of the protection of rights and freedoms. The Court is under an obligation to safeguard and uphold the violated rights under consideration, at least to the state they were before the issuance of the judgment.

This interpretative principle is based on the preamble of the Convention and on articles 19 and 53 therein. It constitutes the principal duty of Strasbourg in the context of the jurisprudential treatment of the cases. The mark of the Convention is that rights do not regress, nor are there any steps backwards as far as the protection of rights is concerned[29].

Each right consists of a basis, as shaped by the phrasing of the Convention (grammatical interpretation, i.e. phrasing of articles 2-18 of the Convention and its Protocols).

It is to this base that all the extensions of rights must be added.

First, the protective basis of the rights is extended by means of the Strasbourg jurisprudence itself, second it has to be extended with regard to the protective scope of the applicant that has already been implemented on the infringed right by the legislation or jurisprudence of the defendant country. This legislation also includes the ratification of other international conventions which develop a broader protection of the right under consideration than the one offered by the ECHR[30].

This base and all the aforementioned extension of rights constitute a unified whole which can no longer be divided. These additions are incorporated into the right and the Court is unable to render them autonomous and separate them from the right or divide the integral whole, which becomes unified from that point on. The “protection” referred to in the preamble (article one) does not allow less protection than that already achieved and recognized in Strasbourg as well as on a national (with regard to the defendant state) jurisprudential or legislative level. Thus, the Court has the duty to interpret the Convention on the basis of its broadened dimension in each case.

The documentation of this principle is empowered by article 32 of the Convention on the authoritative nature of the Court’s interpretation, by article 46 where the effect of the judgments is obligatory for the Member States and by article 19, under which the mission of the Court is to ensure that the Member States will respect their engagements deriving from the Convention and the Protocols.

Thus, the Court is under the obligation, on the one hand to safeguard the individual rights and fundamental freedoms it has interpreted and developed and, on the other hand to ensure respect for the obligations of the Contracting Parties. Nowhere is there any obligation of the Court to defend or extend the rights of the states with a corresponding equivalent to reduce the rights and freedom of individuals.

In any case, the ECHR confers no right to the Court to proceed to jurisprudential regression and make steps backwards. The final Strasbourg judgment which reinforces or extends the right is incorporated in the body of the provision and is no longer separated by means of jurisprudence. The Court, in other words, is not allowed to curtail or even abstractly alter a right which has extended itself by means of a final judgment, sitting neither as a Chamber nor as a Grand Chamber.

It must be noted that within the contexts of the acquired social rights a principle which is similar to that of non-regression has been developed: the ‘standstill’ principle or else the ‘ratchet mechanism’[31]. On the basis of this principle the legislator is not allowed to pass laws resulting in the curtailment of the social protection of the individual which has already been recognized and achieved. This principle is also extended to the judicial interpretation concerning social rights. The reduction of the salaries of the employees, of pensions, of insurance benefits and so on can also be integrated to this principle.

The necessity of the existence of a mechanism which ‘blocks’ such regression is in full accordance with the jurisprudential obligation of the Strasbourg Court, as far as the maintenance of the rights and freedoms is concerned.

Unfortunately, though, the Court has not avoided regressive steps backwards. This may be possibly excused if perceived as an exception and a human error, but it is still unacceptable as a tendency or as an alteration of course. In this case, we can refer to ECtHR versus ECHR.

 

B)Jurisprudential examples of Strasbourg regression

 

I.- A, B and C v. IRELAND, Judgment of 16.12.2010[32]

This decision proceeds to an incredible regression which is totally contrary to the aim pursued under the Convention preamble, namely the achievement of greater unity between the member-states of the Council of Europe.

The ECtHR Grand Chamber overlooks what is so far considered to be the grounds for the evolution of its jurisprudence and the restriction of the margin of appreciation of the states. Thus, the ECtHR in the case concerned entirely overrides the strong European consensus in favor of the “profound moral views” of the majority of citizens of a state.

While in the judgment itself it is acceptable that there is a consensus amongst a substantial majority of the Contracting States of the Council of Europe (of 30-40 states according to certain criteria) towards allowing abortion on broader grounds than accorded under Irish law[33], the Court, however, overlooks this consensus and ‘reveals’ a new dangerous standard, the basis of which overrides the European consensus. The reasoning of the Grand Chamber majority, according to which “… Irish people have profound moral views as to the nature of life which impacts on the European consensus and overrides it”, is extremely alarming, unsafe and contestable.[34]

This view of the Court is a real and dangerous new departure in the Court’s case-law[35]. The standard of the profound moral view at the level of Court jurisprudence is extremely relative, configurable and unstable, due to the angle under consideration each time and to its diversity from state to state. In any case, however, national profound moral views are principally determined by factors such as conservatism, tradition, majority (since moral views are always determined by a majority and never a minority) and failure to adapt to new facts. This standard is essentially contrary to the development of rights, since it dynamically hinders their development and improvement, as well as the fixed jurisprudence of the Court, which relies on the European consensus and evolutive interpretation. In essence, this judgment introduces a new standard, which constitutes ‘a battering ram’ against minorities, contemporary views and societal development, namely against all those who need the protection of individual rights and fundamental freedoms and for the benefit of whom the ECHR was adopted. If the aforementioned standard prevails in future Court jurisprudence, which would suggest that morality and traditional views of the majorities would legitimize states (by means of the margin of appreciation) to determine the application of the Convention rights through the orders of the majorities[36], this will mark the end of individual rights as well as of the aim, the spirit and the protective scope of the Convention.

The aforementioned standard in relation to the European consensus is in any case totally contrary to the previous fixed Strasbourg jurisprudence[37] as well as to the spirit and aim of the Convention and constitutes a serious jurisprudential regression, entirely inconsistent with the ECHR itself.

At this point, I would not fail to cite the most important parts of the best dissenting opinion of the year 2010[38] of judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi in the case concerned (A, B and C v. Ireland).

“…5.  According to Convention case-law, in situations where the Court finds that a consensus exists among European States on a matter touching upon a human right, it usually concludes that that consensus decisively narrows the margin of appreciation which might otherwise exist if no such consensus were demonstrated. This approach is commensurate with the ‘harmonising’ role of the Convention’s case-law: indeed, one of the paramount functions of case-law is to gradually create a harmonious application of human rights protection, cutting across the national boundaries of the Contracting States and allowing the individuals within their jurisdiction to enjoy, without discrimination, equal protection regardless of their place of residence. This harmonising role, however, has limits. One of them is as follows: in situations where it is clear that on a certain aspect of human rights protection, European States differ considerably in the way that they protect (or do not protect) individuals against conduct by the State, and the alleged violation of the Convention concerns a relative right which can be balanced – in accordance with the Convention – against other rights or interests also worthy of protection in a democratic society, the Court may consider that States, owing to the absence of a European consensus, have a (not unlimited) margin of appreciation to themselves balance the rights and interests at stake. Hence, in such circumstances the Court refrains from playing its harmonising role, preferring not to become the first European body to ‘legislate’ on a matter still undecided at European level.

  1. Yet in the case before us a European consensus (and, indeed, a strong one) exists. We believe that this will be one of the rare times in the Court’s case-law that Strasbourg considers that such consensus does not narrow the broad margin of appreciation of the State concerned; the argument used is that the fact that the applicants had the right “to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland” suffices to justify the prohibition of abortion in the country for reasons of health and well-being, “as it is based on the profound moral views of the Irish people as to the nature of life” (paragraph 241 in limine).
  2. We strongly disagree with this finding. …. the majority bases its reasoning on two disputable premises: first, the fact that Irish law allows abortion for those who can travel abroad suffices to satisfy the requirements of the Convention concerning applicants’ right to respect for their private life; and, second, the fact that the Irish people have profound moral views as to the nature of life impacts on the European consensus and overrides it, allowing the State to enjoy a wide margin of appreciation…
  3. As for the second premise, it is the first time that the Court has disregarded the existence of a European consensus on the basis of ‘profound moral views’. Even assuming that these profound moral views are still well embedded in the conscience of the majority of Irish people, to consider that this can override the European consensus, whose tendencies lean in a completely different direction, is a real and dangerous new departure to Court case-law. Case-law, which to date has not distinguished between moral and other beliefs when determining the margin of appreciation which can be afforded to States in situations where a European consensus is at hand…”.

 

II.- Judgment of Grand Chamber in Gorou v. Greece No. 2[39]

 

Under Greek legislation all judicial judgments without exception, as well as the orders of the examining magistrate and the public prosecutor must be reasoned specifically and in detail. Until recently, ECtHR jurisprudence was clear and crystallized, giving the impression that it had been rendered fixed. Thus, in Gorou v. Greece (no. 4), judgment of 11.1.2007 the Court’s judgment was the same as previous judgments[40] that the Attorney General must justify its decision on rejection of the appeal to the Court of Cassation by the a violation of article 6 civil party and that non-justification constitutes § 1 of the ECHR. All judgments were final. However, the ECtHR sitting as a Grand Chamber (Gorou v Greece no. 2 of 20.3.2009) decided by majority[41] that there is no obligation of the Attorney General to give reasons, that the Attorney General has, on the one hand a duty to respond to the applicant but, on the other hand, has no obligation to reason its  response. Thus, it held that there is no violation of article 6 § 1 of the ECHR, totally contrary to its previous fixed jurisprudence but also to its previous jurisprudence in a case between identical parties, in an identical context concerning the same violation (Gorou v. Greece). While, namely, the ECtHR had essentially recognized in a number of final judgments a violation of the right of the same applicant and of other citizens within the same context, later in a subsequent judgment the exact opposite was decided, without safeguarding the right of the applicant to receive a response to their request by the public prosecutor, which had already been recognized. The Court also acted in the same way later in the case Vervesos v. Greece of 14.5.2009.

Of interest are also the dissenting opinions of the Strasbourg judges on the aforementioned judgment of the Grand Chamber. They indicate the problem not only with regard to the judgment in question, but also to the future of Strasbourg in terms of interpretation, thus implying that although new ‘doors’ open, recognized rights are subject to restriction. Judge Malinverni expresses the following opinions, supported by two other judges: “Indeed, I have never understood why the Chamber, departing from the Court’s previous case-law …held … that there had not been a violation of Article 6…That departure from case-law was all the more difficult to justify as the Court’s earlier judgments had not been challenged by the respondent Government, at least not formally, for example by means of a request for referral to the Grand Chamber. It is also surprising in the sense that, as a rule, the Court departs from case-law in order to afford better protection to individuals. Here the opposite is true. … The present judgment thus constitutes a step backwards in the protection of fundamental rights that I find both difficult to understand and regrettable… First, although it is true that, under Greek law, appeals to the Court of Cassation are subject to the public prosecutor’s discretion, it should nevertheless be pointed out that any authority which has such power is not thereby absolved from the duty of giving reasons for its decisions, as otherwise it could quite easily slide into arbitrariness…”.

Judge Casadeval expresses the following opinions: “…the Court has previously developed unambiguous case-law about the practice whereby Greek public prosecutors reject requests from individuals for appeals on points of law by means of terse, and therefore completely unreasoned, handwritten notes…  The Grand Chamber decided to endorse the Chamber’s departure from case-law. In the absence of explanation, I fail to understand what reason, serious question or legal interest there is to justify this step backwards by the Court. It is clear that the Court, in its previous judgments, could have adopted a different approach to the issue – perhaps a less demanding or less formalistic one – but once it has decided to extend individuals’ rights in a particular aspect of the right to a fair hearing, it should not – unless there has been a manifest mistake – reverse its decision. Acquired rights in the cause of human rights are at least as precious as acquired rights in other branches of the law and therefore the principle of non-regression must prevail…”.

 

III.- Decision on admissibility of Grand Chamber, Bankovic a.o v. Belgium a.o[42]

The Bankovic case constitutes another example, whereby the ECtHR made a big step backwards, despite previous, fixed and coherent treatment of the matter of extraterritorial application of the human rights conventions[43] by itself[44] as well as by international control bodies[45], thus resulting in another regrettable vacuum in the system of human-rights protection. More specifically, in the case concerned the Court dealt with a complaint on the part of the survivors and relatives of the victims who had been killed during the bombardment at the Broadcasting Station in Belgrad by NATO forces, which caused the death of 16 people and injury of another 16 people. The applicants complained about violation of articles 2 (right to life), 10 (freedom of expression) and 13 (right to an effective remedy) of the ECHR. The crucial matter about the admissibility of the application was whether the ECHR was applicable ratione loci in this particular case. The ECtHR, interpreting article 1 of the Convention and more specifically the concept of ‘jurisdiction’ in a restrictive manner, offered a negative response to this question. Thus, while until the beginning of 2000 the jurisprudence of the ECHR instruments had been clear as to the possibility of applying the Convention to the acts or defaults of the State’s organs outside the limits of its territory, with a key-judgment in Loizidou v. Turkey[46], where the Court, in principle, in paragraph 71 accepted that: “That the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court’s case-law (…). It follows that these provisions cannot be interpreted solely in accordance with the intentions of their authors as expressed more than forty years ago” and further in paragraph 78 accepted that[47]: “the Court must have regard to the special character of the Convention as an instrument of European public order (l’ordre public) for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, is “to ensure the observance of the engagements undertaken by the High Contracting Parties”. Having regard to the applicant Government’s continuing inability to exercise their Convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals the benefit of the Convention’s fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court”, the Court in Bankovic introduced a strong presumption of territoriality of the ECHR, thus without safeguarding the recognized rights of the applicants concerned, while it excluded the extent of the ECHR scope in the Yugoslavian territory.

And as stated by Lawson: “against the jurisprudential background, the ECtHR’s ruling in Bankovic ‘comes as a disappointment’”[48].

 

IV.The jurisprudential development of individual rights and fundamental freedoms as the basis of evolutionary interpretation. Jurisprudential tools

 

The development of rights cannot have a static character but must be dynamic[49], evolutionary[50] and in line with society’s prevailing contemporary conditions[51]. This mode of interpretation is not connected to the past but based on current reality, taking into account the historical changes in ethics, conditions and everyday life, whilst also considering changes in society. The interpretation of judicial judgments must be adjusted according to contemporary life, thus safeguarding the harmonious and appropriate evolution of rights.  In fact, it is this very interpretative method that has allowed the Court to adopt, from the very beginning, the development of ethics and technologies of the third millennium. The social context within which the inspiration for and the materialization of this international agreement took place, has persisted and has also directly affected its contractual regulatory framework. In effect, the realization of the aims of the Convention is dictated by the model of societal advancement.[52]

The method of evolutive interpretation, which constitutes the distinctive feature of the Court as well as the reason for its universal international recognition and the consideration of the changes in current conditions made their first appearance in Strasbourg case-law in the well-known Tyrer v. United Kingdom judgment of 25.4.1978[53]. In this case, the Court was confronted with national (British) legislation[54], but also with the local way of thinking of the residents of the Isle of Man, where it was legal to chastise minors by employing the use of corporal punishment (caning). More to the point, apart from it being allowed by law, this was a practice that was also largely deemed to be acceptable by the local community. The ECtHR held that, given that the Convention is a living instrument, it must be interpreted in the light of currently prevailing circumstances, whilst it cannot remain unaffected by the commonly acceptable measures of penal policy espoused by the contracting parties of the Council of Europe in that particular field. Thus, it was decided that the British rules allowing the use of corporal punishment, which was a practice protected under the veil of judgment and exercised to the detriment of the minor, were in violation of Article 3 ECHR. The Court then moved on to clarify that “The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being […] [and] constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect, namely a person’s dignity and physical integrity”.

The Strasbourg court applies the following tools[55] in the implementation of evolutive interpretation:

i) The term “living instrument”, first met in Tyrer v. United Kingdom, judgment of 25.4.197

ii)The term “autonomous concepts”, first met in Engel and others v. the Netherlands, judgment of 8.6.1976

iii)The term “practical and effective rights”, first met in Airey v. Ireland, judgment of 9.10.1979

iv)It also applies time as a basic tool of this interpretation. In Goodwin, it observes that “The Court is not persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria. […]There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments […]”[56].

It must be noted that the above remarks on the subject and purpose of the ECtHR clearly illustrate why the ECHR must be interpreted in view of currently prevailing circumstances, rather than in terms of the applicable conditions that were specific to the time of the drafting of the Convention.[57] Strasbourg case-law interpretation is amenable to this notion, as the Court is regarded as a living instrument, having as its aim the optimal comprehension of the principles that lay the foundations of the rights established by the ECHR, irrespective of how the signatory states themselves enforce those principles.[58] The development of the above-mentioned interpretative tool of the autonomous concept of the Convention’s wording has played a significant role in this direction. Such a development is of great importance for the following reasons: a) the words included in the text of the ECHR articles must not be interpreted in a formal manner, b) these words contain their own autonomous meaning dominated by the Convention spirit and c) the meaning of the words must not be subject to the states’ “sovereign will”.[59]

The decision of the House of Lords in Great Britain also stands in the same jurisprudential direction “…A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum”[60].

A certainly noteworthy application of the evolutive interpretation is also followed by the Courts of the European Union. Two characteristic examples are the case of the German Maruko, where the former European Court of Justice[61] reversed the approach it had previously taken in its existing case-law, holding that the same sex partner of a registered life relationship was entitled to a widower’s pension equivalent to that granted to a surviving spouse of the opposite sex. Also the judgment of the European Union’s Civil Service Tribunal[62] in the case  of the Dutch Anton Pieter Roodhuijzen v. Commission, where the ECJ employed a particularly dynamic and evolutive interpretation of the applicable rules, moving to recognize Mr Anton Pieter Roodhuijzen’ s unregistered partnership as a relationship that would yield equal rights to those granted to a recognized partner or spouse, hence equating actual relationships with their legally recognized counterparts.

V. Myths and realities

Below there will be a brief reference to two myths of the modern jurisprudential practice of the Court. They concern the concepts of judicial activism and the so-called ‘margin of appreciation’.

I)Judicial activism

Many[63] complain that this interpretation of the Strasbourg Court leads to the creation of new rights, such as the right to environmental protection[64] (enlargement of article 8 ECHR), to retroactive effect of the more lenient criminal law[65] (enlargement of article 7 ECHR), to protection against human trafficking[66] (enlargement of article 4 ECHR), to protection of reputation[67] (enlargement of article 8 ECHR) etc.

Consequently, according to this opinion, the ECtHR is effectively turned into a legislative body, thus exceeding its competence through the establishment of new rights that do not exist in the Convention.

The Vice-president of the ECtHR, judge Christos Rozakis, states[68]: “Thus, due to the nature of developments in the field of European integration, the Court is called to continue the work of creating a uniform perception of human rights within the enlarged Europe nowadays. As in every decentralized or relatively decentralized law system – where there is no powerful legislative agent for creating written law on a regular basis -, within the international environment of the European continent, the jurisprudence of an international court encloses elements of legislative order. The judge is also a legislator within the international system, from the moment that he is called to fill the vacuums of general and abstract rules of law, which have been created conventionally (or, in some cases, by custom). In particular, the Strasbourg judge – as the judge of Luxembourg Court – does not ‘legislate’ only with regard to obligations or rights of states between each another, but also with regard to matters concerning the internal legal relations, namely those of the individual to the state. In other words, they affect the internal effect of the law in each contracting-state not only with regard to the particular case under consideration but also to all the other cases of similar nature and character”.

As mentioned earlier, however, this method of interpretation adopted by Strasbourg does possess the required legitimacy that is needed in order to further existing rights. This is particularly pertinent when a more recent interpretation also includes, within the content of an established right, an additional aspect to it – an occurrence which does not lead to the founding of an autonomous and independent new right. In fact, this process represents the evolutive (or dynamic) widening scope of a pre-existing and legally established individual right.

As far as the right to environmental protection is concerned, there is extensive ongoing discussion. However, this is not a novel concept, as the ancient Romans were, in actual fact, the first to consider environmental nuisances[69]. The Court itself has referred to the term “environmental protection” in at least 70 of its judgments[70].

The President of the ECtHR, Mr Jean Paul Costa, mentions the following in his separate opinion in the case of Hatton[71]: “[…] the right to a healthy environment is included in the concept of the right to respect for private and family life […] Since the beginning of the 1970s, the world has become increasingly aware of the importance of environmental issues and of their influence on people’s lives. […]”. In the Grand Chamber judgment of the same case, judge Costa – along with some of his colleagues – provide the following in their dissenting opinion: “As the Court has often underlined: ‘The Convention is a living instrument, to be interpreted in the light of present-day conditions’ […] This ‘evolutive’ interpretation by the Commission and the Court of various Convention requirements has generally been ‘progressive’, in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the Convention to develop the “European public order”. In the field of environmental human rights, which was practically unheard of in 1950, the Commission and the Court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protection against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on”[72].

In cases concerning matters of environmental protection, the Court has truly exhibited a jurisprudential practice that asserts its role in applying the ECHR, thus granting the Convention an essential and practical substance in cases concerning the protection of private and family life. Most importantly, the Court has achieved this by generating a dynamically evolutive and progressive body of human rights jurisprudence.

The term judicial activism[73] is used in order to describe court judgments that appear to be based more on the personal view and prejudice of judges, rather than on the applicable law itself. The term seems to carry negative connotations, as it has been mainly construed by the supporters of a more conservative stance, namely that of “judicial restraint”.

Nonetheless, the meaning of judicial activism is more of a technical matter, rather than an issue of substance, when it comes to Strasbourg.

In the jurisprudential approach of the ECtHR, judicial activism cannot be considered as an autonomous and separate method of interpretation. In fact, it is more akin to a characterization of the Court’s predominantly evolutive and dynamic interpretation, which is implicitly incorporated within the definition of ‘furthering of rights’, expressly provided in the Convention’s Preamble. Thus, the notion of ‘activism’ is inherently encapsulated within the evolutionary nature, namely the developmental part of the rights protected by the ECHR and, as such, it constitutes a notion of the conservative judicial tendencies which desire to degrade the value of the developmental form of interpretation. In essence, when the term is used in the context of ECtHR case-law, it can be simulated with that part of the Court’s jurisprudence that falls under the concept of creative interpretation. This practice can mostly be seen in cases involving Articles 8, 9 10 and 12 ECHR, which have, in turn, granted the Court consentient global recognition[74].

It must be noted that the EU Court uses judicial activism[75] as a motive for the EU integration. Historically, the tolerance, if not the consensus, of the EU member states has also contributed to this.[76]

II)The ‘margin of appreciation’: A jurisprudential construction of the Strasbourg Court.

The Strasbourg Court has made a balancing, diplomatic gesture towards national state signatories of the ECHR. It has created a jurisprudential construction, termed as “margin of appreciation[77], that was not foreseen in the Convention[78] itself. In essence, this captures the Court’s judicial constraint and its abstention from judicial scrutiny. The Court accepts that in certain cases where there is a clash between ECHR protected rights and the wider public interests of a member state, it is more appropriate that the matter should be decided by national courts or national authorities, rather than by Strasbourg[79].

The manner in which the delimitation of the margin of appreciation has been set refers to the authority of the contracting states in assessing factual circumstances, as well as to the application of the provisions that apply through the various regional and international human rights conventions[80]. Its defining core is that, within its territory, each society retains the right to balance individual rights with national interests, and to rule on any disputes that may result from the varying moral, social, cultural, political and legal traditions[81] of contracting states[82].

Thence, Strasbourg engages in a form of self-restraint that lies beyond the Convention, effectively granting authority to the offender (state), rendering it the sole entity entrusted making a decision as to the existence of a violation against the victim (applicant)! This constitutes a judicial ‘invention that weakens the force of the ECHR, whilst it also stands against the aims of the Convention itself.

In practice, whenever the ECtHR does not wish to involve itself in a case, it abstains from its ECHR obligation to protect the victim, opting for the indirect transferal of that obligation to act to the respondent state (or, effectively, accepting that the state will not act). The “margin of appreciation” is, in reality, a medium for the self-protection of the Court itself, and a form of judicial tolerance vis-à-vis state arbitrariness. Strasbourg is not entitled to abstain from the application of any right: on the contrary, it is the only body that is positively obligated to enforce the Convention, since its interpretation is both conclusive and authoritative.

In essence, the application of the margin of appreciation violates article 19 of the ECHR and the Court itself voluntarily violates its principal aim of ensuring the observance of the engagements undertaken by the High Contracting Parties in the Convention deriving from the Convention. The application of this tenet constitutes an allowance on the part of the Court towards the states for the reduction of the protective scope of the citizen’s rights.

The tenet of the margin of appreciation is a creation of Strasbourg institutions. The first time it was utilized by the ECtHR was in the case of Handyside v. United Kingdom of 7.12.1976[83]. It was then subsequently used indirectly by the Committee that enforces the ICCPR[84], and directly by the Inter-American Court of Human Rights[85], a judicial body that regularly references ECtHR case-law.

Following that, the ECtHR has issued a number of judgments where the principle of the ‘margin of appreciation’ has been consistently used. Nonetheless, it is submitted that, in practice, it undermines the protection of rights and freedoms of European citizens, as it affects the unfettered enjoyment of their protected rights. Moreover, the notion of the ‘margin of appreciation’ does not have a clearly defined nature. As such, it becomes counter-productive in view of the aim of effective application of the Convention, especially since rights are meant to be interpreted in a clear and precise manner[86].

Hereby, it is worth mentioning the view of judge Chr. Rozakis on the margin of appreciation[87]: “…the concept of the margin of appreciation is not always in accordance with the logic of the homogenization of human rights within Europe. If one of the aims of the Convention and function of the Court is the gradual unification of European protection by way of creating a detailed body of rules of conduct, applying to all possible areas of protection within the European continent, then the invocation of the margin of appreciation allows the states to deviate, in some cases, from a common line and maintain their particularities and originality of their local protection. If, for example, a state can, by invoking local particularities, deviate from a concept of protection of the freedom of expression, which has an effect in other states of Europe or protection of the right to respect for private and family life, solely based on the standard that the internal authorities have decided on this matter, without any arbitrariness being discerned in their judgments, then the element of pan-European homogeneity is endangered….. However, since these differences are mitigated and as Europe is approaching the supreme purpose, namely its integration, the invocation of the margin of appreciation cannot fulfill the necessities that it once fulfilled.”    

VI. Conclusion

The Strasbourg judge is the ultimate “ruler” as far as the interpretation of the Convention is concerned. Such an interpretation was determined by the Council of Europe to be neither arbitrary nor unlimited. The interpretation by the European judge of the ECtHR has limits and rules. The restrictive interpretation of the Convention rights is prohibited. Regression is prohibited. The Court is under the obligation to look forwards. It bears a heavy responsibility for the safeguard of the rights, as they have been shaped by the Convention, the Protocols, the jurisprudence, but also for the possibility of their evolutive development in the future, which will depend on this discreet jurisprudence, orientated towards the real and effective defense of the rights of the individuals and their development. The latter can be achieved neither by constructions of ‘margins of appreciation’ nor by regressive steps, but under a common ‘umbrella’ of uniform protection, which will safeguard their rights in a substantial and effective manner. In effect, we are all in need of this umbrella in these tough times…

The Honourable Mr Justice Rozakis is retiring from Strasbourg after many years of service. His contribution to the jurisprudential evolution of the Court has beencatalytic. He is the genuine representative of evolutionary interpretation and the personification of an independent judge who puts his own stamp on each judgment issued by the Court. A conclusion supported by his numerous significant concurring and dissenting opinions on many interesting Strasbourg judgments. He is a judge who follows his own path. He describes himself in the following words: “judges basically live in a vacuum and work detached, far from home within an isolated environment. One forgets their country of origin. Judges feel that they are being evaluated by their colleagues, they create their own image through the eyes of their colleagues and jeopardize their credibility… if they attribute great importance to the interests of their country”.[88] One thing is sure.  After his retirement, Strasbourg will certainly be poorer…

 

 

[1] Supreme Court Attorney, member of the Athens Bar Association, Judge at the Supreme Constitutional Courts for the actions of miscarriage of justice by judges and of payment of salaries, member of the Supreme Disciplinary Council of Greek lawyers and member of the Editorial Board of the legal journal “Nomiko Vima”

[2] The “African Charter on Human Rights and People’s Rights”, though newer than the others (1981), is a more generally expressed regional Human Rights Convention

[3] Adopted in 1969

[4] Adopted in New York on 16.12.1966

[5] Vassilis Chirdaris, “H kritiki sto Strasbourgo, ta oria ermineias, to perithwrio ektimisis kai ta provlimata tou EDDA”, (Criticizing Strasbourg, the limits of interpretation, the ‘margin of appreciation’ and the problems faced by the ECtHR), NOMIKO VIMA, (2009), pg. 1980

[6] Except Belarus, which has not signed the ECHR nor is it a member of the Council of Europe yet

[7] Article 32 and 47 of the ECHR

[8] The conditions provided in article 46 were added by Protocol No. 14

[9] Article 32 para. 1 of the ECHR

[10] Article 47 para.2 of the ECHR

[11] G. Cohen Jonathan, « Aspects européens des droits fondamentaux », Paris, Montchrestien, 1996, pg. 47 and E. Lambert, « Les effets des arrêts de la Cour européenne  des droits de l’ home », Bruxelles, Bruylant, (1999), pg. 289

 

[12] J.M. Sorel “Article 31” in O. Corten-P. Klein “Les Conventions De Vienne sur le droit des traits. Commentaire anticle par article”  Bruylant, Bruxelles, 2006 pg. 1289 et seq.

[13] see Golder v. United Kingdom, jugement of 21.2.197, para. 30, Witold Litwa v. Poland 4.4.2000, par. 58,59

[14] See George Letsas “Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer”  The European Journal of International Law Vol. 21 no. 3 © EJIL 2010

[15] The ECtHR has published 13.697 judgments until 31.12.2010.

[16] Vassilis Chirdaris “Criticizing Strasbourg, the limits of interpretation, the “margin of appreciation” and the problems faced by the European Court of Human Rights”, NOMIKO VIMA “EUROPEAN COURT OF HUMAN RIGHTS 50 Years” Athens (2010), pg.151

[17] Michele de Salvia, Compendium de la CEDH, Vol. 1. Jurisprudence 1960 à 2002, N.P. Engel, Kehl, Strasbourg, Arlington, Va, pg. 9

[18] Judgments: Wemhoff v. Germany, judgment of 27.6.1968 and Golder v. UK, judgment of 21.2.1975

[19] Article 19 of the ECHR

[20] ECtHR: Parti Sosialiste et autres c. Turquie 25.5.1998, Parti communiste unifie de Turquie et autres c. Turquie 30.1.1998

[21] Ind. See Lingens v. Austria of 8.7.1986 as well as a number of judgments on violations particularly of articles 9,10,11 etc.

[22] L.-A. Sisilianos, “H anthrwpini diastasi tou Diethnous Dikaiou” (The human dimension of International Law), Nomiki Vivliothiki (2010), pg. 213 et seq.

[23] Characteristic classical examples of evolutionary interpretation of the Strasbourg jurisprudence are the judgments in cases Tyrer v UK and Golder, judgment of 21.2.1975

[24] See supra note 16 pg. 151,152

[25] Winterwerp v. the Netherlands, judgment of 24.10.1979

[26] Goodwin v. UK, judgment of 11.07.2002 where the Court interpretation includes within the terms ‘man’ and ‘woman’ those individuals who have changed sex, which would be inconceivable for the original drafters of the convention.

[27] See Vassilis Chirdaris in commentary on Vervesos v. Greece, judgment of 14.5.2009, NOMIKO VIMA (2010), pg. 2110

[28] See dissenting opinion of Judge Casadevall on Grand Chamber judgment in Gorou v. Greece (no. 2) of  20.3.2009,

[29] See dissenting opinion of Judge Maliverni on Grand Chamber judgment in Gorou v Greece (no. 2) of 20.3.2009

[30] See Article 53 ECHR

[31] See supra note 13

[32] Application no. 25579/05

[33] Para. 235 of the judgment

 

[34] see the joint partly dissenting opinion of judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi para. 7

[35] See an analysis of the case in Stijn Smet “A., B. and C. v. Ireland: Abortion and the Margin of Appreciation” 17.12.2010 in strasbourgobservers.com/2010/12/17/a-b-and-c-v-ireland-abortion-and-the-margin-of-appreciation

[36] Wingrove v. The United Kingdom, judgment of 25.11.1996

[37] Akdas v. Turkey, No. 41056/04, 16.02.2010

[38] Alexandra Timmer, “2010: year of ‘profound moral views” 20.01.2011 at strasbourgobservers.com/2011/01/20/2010-the-year-of-%e2%80%9cprofound-moral-views%e2%80%9d

[39] Gorou v Greece no. 2, judgment of 20.03.2009, (Application number 12686/03)

[40] ECtHR, Anagnostopoulos v. Greece, application number 54589/2000, judgment of  3.4.2003,  Alija v. Greece, application number 73717/01, judgment of 7.4.2005, Markoulakis v. Greece (no. 1) application number 44858/04, judgment of 26.7.2007

[41] Dissenting opinions of 4 judges

[42] Bankovic a.o v. Belgium a.o, (GC) (No. 52207/99) ECtHR 12.12.2001

[43] Michal Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties, 2009 Intersentia

[44] Χ v. Germany, judgment of 25.09.1965, W.M. v Denmark, judgment on admissibility 25.09.1965, Drozd and Janousek v. France and Spain (GC), (26.06.1992), Cyprus v. Turkey, judgment of 26.05.1975, Cyprus v. Turkey, (GC) 25781/94, judgment of 10.05.2001

[45] Βurgos/Delia Saldias de Lopez v. Uruguay, communication no. 52/1979 (29 july 1981), Human Rights Committee,  Coard et al. v. United States, InterAm.C.H.R., Case 10.951, 29.09.1999

[46] Loizidou v. Turkey, Eur. Ct. H.R. (ser. A), judgment of 23.03.1995, (GC) (Preliminary Objections)

[47] Loizidou v. Turkey, Eur. Ct. H.R. (ser. A), judgment of 10.05.2001, (GC) (Merits)

 

[48] Rick Lawson. Life after Bankovic: on the extraterritorial application of the ECHR; in: Extraterritorial application of Human Rights Treaties, edited by Fons Coomans and Menno T. Kamminga; pg. 107

[49] ECtHR judgment Marckx v Belgium,  judgment of 13.6.1979

[50] ECtHR, Guzzardi v Italy, judgment of 6.11.1980, § 95, Johnston and others v Ireland, judgment of 18.12.1986, para. 53

[51] ECtHR, Airey v Ireland, judgment of 9.10.1979, p. 14-15, § 26, Annoni di Gussola and others v France, judgment of 14.11.2000, para. 56

[52] Jean-Loup Charrier Code de la Convention européenne des droits de l’homme,  pg. 2,  G. Van Des Mersch, Le caractère « autonome » des termes et la « marge d’appréciation » des gouvernements dans l’interprétation de la Convention européenne des droits de l’homme in Mélanges Wiarda, Cologne 1988, pg. 202. – V. également C. Russo, Commentaire sous article 8 in Pettiti, Decaux et Imbert, La Convention européenne des droits de l’homme, Économica (1995), pg. 308.

[53] See Application no. 5856/72, in

cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=TYRER&sessionid=37540123&skin=hudoc-en

[54] section 56 (1) of the Petty Sessions and Summary Jurisdiction Act 1927 (as amended by section 8 of the Summary Jurisdiction Act 1960)

[55] See supra note 14

[56] ECtHR judgment Goodwin v. UK, judgment of 11.7.2002, par. 100

[57] George Letsas “A Theory of Interpretation of the European Convention on Human Rights” 2007, p. 74.

[58] Ibid

[59] See supra note 14

[60] M.R. in Reg. v. Ministry of Defence, Ex parte Smith (1996) Q.B. 517 at pp. 552-554 by Sir Thomas Bingham.

[61] Judgment of 1.4.2008 (Grand Chamber) with number C-267/06, NoV 2008, pg. 767 et seq. with commentary of the signatory.

[62] Judgment of 27.11.2007 in the case with number F-122/2006, see commentary in NoV 2008, pg. 781-882

[63] Such as Lord Hoffmann in his speech of 19.3.2009 at Judicial Studies Board with title “The Universality of Human Rights” in www.jsboard.co.uk/aboutus/annuallectures.htm

[64] Lopen Ostra v. Spain, judgment of 9.12.1994, Fadeyeva v. Russia, judgment of 9.6.2005, Guerra v. Italy, judgment of 19.2.1998, Moreno Gómez v Spain, judgment of 16.11.2004

[65] Scoppola v Italy, judgment of 19.9.2009 (Grand Chamber)

[66] Ratsev v Cyprus and Russia, judgment of 7.1.2010

[67] Pfeifer v Austria, judgment  of 15.11.2007

[68] Chr. Rozakis “Some thoughts on the new European Court of Human Rights” in “SYNTAGMA” (Greek Journal) 2002, p.13 et seq.

[69] Roman law codifies environmental nuisances as immissiones in alienum. Dig.8.5.8.5 Ulpianus 17 ad..ed. See http://www.thelatinlibrary.com/justinian/digest8.shtml [page last visited on 8.12.2009]

[70] See, inter alia, Powell and Rayner ν UK, February 21, 1990, Series A, No.172; 12 E.H.R.R. 355; Lopez Ostra ν Spain, December 9, 1994, Series A, No.303-C; 20 E.H.R.R. 277; Balmer-Schafroth ν Switzerland, August 26, 1997, RJ.D. 1997-IV; Guerra ν Italy, February 19, 1998, RJ.D 1998-1; Athanassoglou ν Switzerland, April 6, 2000, ECHR 2000-IV; Hatton ν UK, July 8, 2003, ECHR 2003-VIII; Taskin ν Turkey, November 10, 2004, ECHR 2004-X; and Fadeytva ν Russia, June 9, 2005, ECHR 2005.

[71] Application no. 36022/97, Chamber judgment of 2.10.2001.

[72] Joint dissenting opinion of judges COSTA, RESS, TÜRMEN, ZUPANČIČ and STEINER in the Grand Chamber judgment in Hatton and Others v United Kingdom, judgment of 8.7.2003.

[73] See the relevant article by Keenan D. Kmiec, “The Origin and Current Meanings of ‘Judicial Activism’”, (2004) California Law Review, providing an extensive overview of judicial activism, both in a theoretical, as well as in a historical sense.

[74] In contrast, ECtHR case-law on Article 6 ECHR is not particularly dynamic or evolutive

[75] See former ECJ judgments Cassis De Dijion (en.euabc.com/word/140) and Metock (www.brusselsjournal.com/node/3457) as indicative examples

[76] Bache, Ian and Stephen George (2006) “Politics in the European Union” 2nd ed., Oxford: Oxford University Press

[77] Howard C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijhoff, 1996); Eva Brems, “The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights” ZAORV, Heidelberg Journal of International Law (1996) pg. 240

[78] See Chr. Rozakis, “The Jurisprudence of the European Court of Human Rights: Bed of Procrustes or a Contribution to European Integration?” Nomiko Vima (2009), pg. 1833 et seq.

[79] Casado Coca v Spain, judgment of 24.02.1994, par. 50; Jacubowski v Germany, judgment of 23.06.1994, para. 26.

[80] Chorherr v Austria, judgment of 25.08.1993, para. 31.

[81] Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia Publishers, 2002); and Eyal Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards” 31 International Law and Politics (1999) pg. 843.

[82] Onder Bakircioglu, “The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases”, German Law Journal No. 7 (1.7.2007)

[83] Application No. 5493/72

[84] Case of Shirin Aumeeruddy-Cziffra and Others v. Mauritius, Communication No. R.9/35 (2 May 1978), U.N. Doc. Supp. No. 40 (A/36/40) at 134 (1981), para. 9.2(b)2(ii), http://wwwserver.law.wits.ac.za/humanrts/undocs/session36/9-35.htm

[85] Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 (Jan. 19 1984), Inter-American Court of Human Rights (Ser. A) No. 4, para. 56-5.

[86] Yuval Shany, “Toward a General Margin of Appreciation Doctrine in International Law” 16 European Journal of International Law (2005), pg. 907.

[87] See supra note 68

[88] See Dean Spielmann, “L’extériorisation du vote judiciaire à la Cour européenne des Droits de    l’Homme”, European Court of Human Rights, 50 Years, NOMIKO VIMA (2010), pg.51 et seq.


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