Wednesday, 17 April 2013

NGO Reaction to Draft Protocol 15 and Comment

Dear readers, it is my pleasure to host another guest post on this blog. This time by dr Kanstantsin Dzehtsiarou of the University of Surrey. He has written some short comments on the very recent Open Letter of a group of leading human rights NGOs directed at all ECHR state parties. The letter, published on 15 April, reflects the concerns of the NGOs about the way the margin of appreciation is mentioned in the proposed amended preamble to the Convention. As most readers will know, currently the notion of the "margin of appreciation" does not explicitly feature in the Convention, but has been developed in the Court's case-law. The NGOs recommend to change the wording by adding one single word: 'may'. Please read the commentary on this particular point:


Much Ado About Nothing
Dr Kanstantsin Dzehtsiarou
On 15 April 2013, a number of well-known and highly respected NGOs including Human Rights Watch, European Human Rights Advocacy Centre, Helsinki Foundation for Human Rights and others sent an open letter to the Ministers of Foreign Affairs and Permanent Representatives of all member states of the Council of Europe urging them to change Article 1 of the new Protocol 15. In the letter, the NGOs criticise the wording of the provision.

According to Article 1 of Protocol 15 the following statement should be added to the Preamble of the Convention: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and in doing so enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.” This amendment is the direct consequence of the Brighton Declaration (2012) according to which “for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the Preamble to the Convention…” (para 12b).

The letter of the mentioned NGOs emphasises that the doctrine of the margin of appreciation is not applicable in relation to certain rights enshrined in the Convention and that this aspect of the doctrine is not properly reflected in the wording of Article 1 of Protocol 15. They mention that “the current text of Article 1 of draft Protocol 15 is open to interpretation contrary to … long-standing reality of the Court’s practice when it makes the unqualified assertion that when implementing the Convention rights and freedoms states “enjoy a margin of appreciation”, thus appearing to ignore that no such margin of appreciation exists when it comes to implementing provisions such as those on the prohibition of torture or slavery”. The NGOs suggest changing the wording of Article 1 of Protocol 15 from “the States enjoy a margin of appreciation” to “the States may enjoy a margin of appreciation”.
To my mind this battle around the margin of appreciation is much ado about nothing. The doctrine of the margin of appreciation was developed by the European Court of Human Rights itself, without this doctrine being mentioned in the Convention. The Court has been applying this doctrine since the Handyside case in the 1970s. It is unclear how the reference to the margin of appreciation in the Preamble to the Convention will influence the interpretation of the Convention by the Court. One can recall that the Court mentions the Preamble quite rarely and one can argue that it has predominantly a rhetorical value rather than a legal one. One can, however, suggest that after been included into the Preamble the doctrine of margin of appreciation will be more often invoked by the member states both in their submissions to the Court and in public speeches. Having said that, the states’ officials use the margin of appreciation extensively in their rhetoric without it being a part of the Preamble.

Before turning to the amendment suggested by the NGOs, I would like to briefly summarise the meaning of the margin of appreciation. Despite being used in a significant number of cases, the definition and the boundaries of the margin of appreciation cannot easily be established. The Court has never clearly defined what it means by ‘margin of appreciation’. In academic literature, the margin of appreciation has been defined as ‘the latitude allowed to the member states in their observance of the Convention’ or as a way to distinguish matters that can be decided at the local level from the matters that are so fundamental that they should be decided regardless of cultural variations. Another reason why the mentioning of the margin of appreciation would have little impact is because it is hardly possible to clearly define where the margin of appreciation ends and the Court’s supervision begins. As Lord Lester famously stated, the margin of appreciation is as slippery and elusive as an eel. The draft Brighton Declaration which was proposed by the UK suggested inclusion of the definition of the margin of appreciation in the text of Convention. This suggestion luckily was not adopted because it would have been a legal drafting disaster as mentioned above.

It seems that the letter from the NGOs is designed to minimise the damage of explicitly including the doctrine of margin of appreciation in the Preamble - an inclusion which I believe will not have noticeable effects anyway. The amendment suggested by them will do even less than the inclusion of the doctrine of the margin of appreciation itself. The NGOs mentioned that the doctrine of the margin of appreciation is not applicable in relation to some provisions of the Convention (the prohibitions of torture and slavery). One should recall, though, that these articles enshrine procedural obligations and not only substantive ones. It is clear from the Court’s case law that there is no margin of appreciation in relation to the question of whether to torture someone or not but the State can have some margin in deciding what the best way is to investigate torture. Alternatively in relation to slavery – there is no one uniform legal regime in implementing the prohibition of slavery – the States are able to choose between certain alternatives.

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