The European Convention on Human Rights and Central Europe: What is Left to the States’ Margin of Appreciation

The assessment of the functioning of the Strasbourg Court is two-faced. On the one hand, the Court is criticised for its activism in interpreting the Convention. The activism of the Court is proved by interpretations and other tools developed by the Court itself, such as the living instrument doctrine, the evolutive interpretation, setting positive obligations for the States, or the use of interim measures. On the
other hand, it is recognised that the Court is aware of the limitations of its powers and tries to respect the decisions of domestic authorities and courts. Besides the restrictions and limitation provided by the Convention itself (like reservations and derogations), the Court has developed several doctrines and principles serving selfrestraint. The most important are the European consensus, the principle of subsidiarity, and the emphasis on the fact that the Strasbourg Court is not a fourth instance court. The most often used argument is the margin of appreciation principle. When the Court respects the power of appreciation of the States, it exercises judicial self-restraint in that it does not use to the full extent its powers of supervision or review. Nevertheless, the Court has emphasised that the power of appreciation is not unlimited. The domestic margin of appreciation thus goes hand in hand with a European supervision. Despite all the advantages of the broad use of the margin of appreciation principle, several criticisms have been raised against the way the Court applies it. The doctrine is often considered controversial. A systematic and open debate on the advantages and the contradictions in the application of the margin of appreciation would improve the use of this tool.

Keywords: margin of appreciation, principle of subsidiarity, European consensus, judicial activism and self-restraint