<abstract xmlns="http://www.w3.org/1999/xhtml"><p>European Court of Human Rights applies the margin of appreciation doctrine in order to determine the level of its self-restraint and the latitude of free discretion of states when implementing their Convention obligations. The rationale behind this doctrine is that in certain cases, domestic bodies are in a better position than international judges to provide adequate protection to human rights. In this regard, they should be afforded a margin of appreciation. The Court subsequently only reviews, if the interferences contested by an individual fall within this margin or not. This doctrine was a subject of overwhelming critique because the European Court of Human Rights did not apply it transparently and consistently. Therefore the main goal of this article is to normatively construe an algorithm which could be taken into account by the European Court of Human Rights when applying the doctrine in order to prevent the mentioned critique.</p></abstract>

European Court of Human Rights applies the margin of appreciation doctrine in order to determine the level of its self-restraint and the latitude of free discretion of states when implementing their Convention obligations. The rationale behind this doctrine is that in certain cases, domestic bodies are in a better position than international judges to provide adequate protection to human rights. In this regard, they should be afforded a margin of appreciation. The Court subsequently only reviews, if the interferences contested by an individual fall within this margin or not. This doctrine was a subject of overwhelming critique because the European Court of Human Rights did not apply it transparently and consistently. Therefore the main goal of this article is to normatively construe an algorithm which could be taken into account by the European Court of Human Rights when applying the doctrine in order to prevent the mentioned critique.

The Algorithm of the Margin of Appreciation Doctrine in Light of the Protocol No. 15 Amending the European Convention on Human Rights

International and Comparative Law Review

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 License.

European Court of Human Rights applies the margin of appreciation doctrine in order to determine the level of its self-restraint and the latitude of free...

The Algorithm of the Margin of Appreciation Doctrine in Light of the Protocol No. 15 Amending the European Convention on Human Rights

Publié en ligne: 24 janv. 2018

Pages: 37 - 53

DOI: https://doi.org/10.1515/iclr-2016-0043

Mots clés
Margin of appreciation, European Convention on Human Rights, European Court of Human Rights, Subsidiarity, Proportionality

© 2018

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 License.

The Algorithm of the Margin of Appreciation Doctrine in Light of the Protocol No. 15 Amending the European Convention on Human Rights

Publié en ligne: 24 janv. 2018

Pages: 37 - 53

DOI: https://doi.org/10.1515/iclr-2016-0043

Mots clésMargin of appreciation, European Convention on Human Rights, European Court of Human Rights, Subsidiarity, Proportionality

© 2018

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 License.

Mots clés
Margin of appreciation, European Convention on Human Rights, European Court of Human Rights, Subsidiarity, Proportionality