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The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases

Published online by Cambridge University Press:  06 March 2019

Onder Bakircioglu

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“Margin of appreciation” refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms, but also for answering the particular questions of a given case in the absence of overall enacted or case law. In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.

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Articles
Information
German Law Journal , Volume 8 , Issue 7 , 01 July 2007 , pp. 711 - 733
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Copyright © 2007 by German Law Journal GbR 

References

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53 In this context, Yves Winisdoerffer asserts that “…One may, on the basis of the existing case-law, regret that the Court does not carry out more thorough examination of the purpose of contested interferences with the right guaranteed… The doctrine of the margin of appreciation also contributes to the difficulty of evaluating where to situate the bounds of Article… The Contracting States as well as individual applicants who come before the Court are the hostages of a case-by-case assessment, the outcome of which is difficult to predict….” Yves Winisdoerffer, Margin of Appreciation and Article 1 of Protocol No. 1, 19 Human Rights Law Journal 18, 20 (1998).Google Scholar

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67 See Lingens, supra note 63, at para. 41; see also Castells, supra note 65, at para. 43. The incidents followed the publications of the cartoons of Muhammad in the Danish newspaper, Jyllands-Posten, showing how elusive the demarcation between freedom of speech/press and hate speech could be. For a detailed analysis see Robert Post, Religion and Freedom of Speech: Portraits of Muhammad, 14 Castellations 72 (2007). See also Eric Heinze, Viewpoint Absolutism and Hate Speech, 69 The Modern Law Review Limited 543 (2006).Google Scholar

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76 This approach is also in line with Article 17 of the Convention which reads “[n]othing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”Google Scholar

77 For a detailed study on hate speech see generally Kevin Boyle, Ensuring freedom, ensuring protection: Guarding against hate speech in human rights law and national European legislation (Nov. 27, 2003), http://www.smed .no/konferanse03/boyle.doc; see generally Eric Barendt, Freedom of Speech (2001).Google Scholar

78 Societies take different measures to respond hate speech in accordance with their historical experiences. As a result of the Second World War, the European approach towards free speech and its limitations is considerably different from that of the United States. Following the horrors of the Holocaust, European States have been more vigilant against the harm that might emerge out of an unleashed form of speech. For instance, denial of the Holocaust has been an important problem in Europe. Consequently, certain European countries have enacted legislation prohibiting and criminalizing such speech, the legitimacy of which was accepted by the Strasbourg organs. See Jonathan Cooper, Hate Speech, Holocaust Denial and International Human Rights Law, 1999 European Human Rights Law Review 593, 596 (1999). In the United States, on the other hand, hate speech is regarded as a price society has to pay to safeguard freedom of expression—it is a form of speech that falls under the protection of the First Amendment. See Stephan L. Newman, Liberty, Community, and Censorship: Hate Speech and Freedom of Expression in Canada and the United States, 32 American Review of Canadian Studies 369 (2002).Google Scholar

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90 “The protection of the rights and freedom of others” and “public order” also constituted the main focus in two controversial headscarf cases, Dahlab v. Switzerland and Sahin v. Turkey. This time, however, the national authorities considered headscarf as a political/religious message which could threaten the secular structure of the states concerned as well as to the “rights of others” and “public order.” In both cases, the Court found the measures undertaken by the Swiss and Turkish governments justified under the legitimate aim of Article 9 (2). Again, the Court accorded a broad margin of appreciation partly because there was little or no European consensus as to whether the right to wear headscarf was within the right to religious freedom. See Leyla Sahin v. Turkey, App. No. 44774/98 (June 29, 2004), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Leyla%20%7C%20Sahin&sessionid=1126384&skin=hudoc-en; Dahlab v. Switzerland, App. No. 42393/98 (Feb. 15, 2001), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=42393/98&sessionid=1126384&skin=hudoc-en. For a detailed analysis of the cases see Ostrovsky, Aaron A., What's So Funny About Peace, Love, and Understanding?: How the Margin of Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals, 1 International Law 47, 54-56 (2005).Google Scholar

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92 See Lord Lester of Herne Hill, Universality versus Subsidiarity: A Reply, 1998 European Human Rights Law Review 73, 76 (1998).Google Scholar

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95 The opponents of this doctrine claim that the usage of this doctrine undermines the very basis of human rights, since it deprives the individual of enjoying his/her rights to which he/she is entitled. Moreover, it has been used by the Strasbourg organs as a justification for their “lax review.” The unsystematic and vague nature of the doctrine was also found to be running counter to the effective implementation of Convention rights, which should be interpreted in a clear and precise manner. See Takahashi, , supra note 1, at 233; see also Shany, Yuval, Toward a General Margin of Appreciation Doctrine in International Law?, 16 European Journal of International Law 907 (2005).Google Scholar

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99 Some opponents of the doctrine go even further claiming that the distinction between fact-finding and application of law should be abolished, and Strasbourg organs should also intervene in the fact-finding mission. This approach seems to be problematic since it overlooks the fact that the main responsibility for guaranteeing human rights rests, in the first place, with the national authorities, and the role of the Strasbourg organs is subsidiary. Indeed, the drafters of the European Convention did not envisage the Court as a fourth instance of appeal from national court decisions. Moreover, the case-load of the Court should also be taken into account; particularly given the fact that the judgments of the Court are not delivered promptly, such a fact-finding role of the Court should only be considered in cases of extraordinary importance. See Belgian Linguistic, supra note 19, at para. 10; see also Petzold, Herbert, The Convention and the Principle of Subsidiarity, in The European System for the Protection of Human Rights 49 (R. St. J. Macdonald, F. Matscher, H. Petzold eds., 1993); Takahashi, supra note 1, at 233.Google Scholar