The ‘Margin of Appreciation’ in ECHR Case-law as a Boundary Line to Legal Transplants

Chapter 9
The ‘Margin of Appreciation’ in ECHR Case-law as a Boundary Line to Legal Transplants

Alessandra Pera


This study investigates the influence of the European Human Rights Court on State ‘margin of appreciation’ on the diffusion of accepted or rejected cultural and political choices through the jurisprudence of the case-law.

The margin of appreciation is an interpretative argument, a criterion, a parameter, which allows the Court to preserve rather than censure national State policies and choices on difficult issues which, involving moral and ethical questions, and which do not receive common answers in the European legal systems.1 Recent examples are decisions on in vitro insemination in UK legislation, such as Evans v United Kingdom;2 on the non-recognition of same sex marriage in Austrian legislation (Schalk and Kopf v Austria);3 on the criminalisation of abortion except when the mother’s life is in danger in Irish legislation (A. and others v Ireland);4 on the Austrian prohibition of in vitro fertilisation with gamete donation (S.H. and others v Austria);5 and on the Italian prohibition of prenatal diagnosis on in vitro formed embryos (Costa and Pavan v Italy).6

However, a particular hermeneutic approach can be open or closed to peculiar solutions, as proved by the debate on the scope of the notion of ‘family life’ under Articles 8 and 12 of the European Convention on Human Rights. This notion, which is undefined in the Convention, has been interpreted and applied to include various kinds of interpersonal relationships, inside and/or outside marriage. It admits the coexistence of the Scandinavian family model alongside the conservative definition provided by the Irish Constitution and the Italian refusal to legally recognise same-sex unions. In fact, the broad notion of ‘family life’ and the recourse to the ‘margin of appreciation’ determine the existence of solutions and models which are really heterogeneous, but at the same time are all within the framework of the general concept of family life. As a result family life protected under these provisions include: the family based on marriage, de facto family, same-sex marriage and unions, relationship between child and legitimate or natural or adoptive parents, step-families and every kind of relationship occurring between people who are linked together by a peculiar affective bound, according to their way of feeling and perceiving personal relationships and also in the light of each State’s cultural, traditional, religious and social backgrounds.

In considering the margin of appreciation the European Court of Human Rights has to take into account political choices and perceptions of social differences among the contracting States, and adopt a case by case approach, which it is able to do because its decisions are binding only among the parties to the case. Consequently in ECHR case law there are many examples of the coexistence of different hermeneutic solutions of the same legal rule, of the same principle, and/or of the same sentence, because some notions are extremely general and comprehensive, for example, in Keegan v Ireland,7 a natural father applied for custody of his child, who had been placed for adoption by the mother shortly after the birth without his knowledge. In such a situation the Court has held that, even if the parents were not married, there existed a bond of family life between the child and his father, which must be protected. There was, therefore, no scope to allow for the Irish ‘margin of appreciation’ and for its restrictive conception of family.

In contrast is the case of Johnston and others v Ireland,8 where Irish law was again scrutinised. This case involved a child born from the union of a man and a woman who were respectively married to other spouses. This child had many problems in getting recognised by his natural parents, as the marriage contract cannot be dissolved according to Irish law. In fact, the institution of marriage is considered the foundation of the family under the Irish Constitution. As the child was born after his parents’ respective marriages, they could not recognise their common son because he was an adulterine child and there was no bond of family life between the child and his natural parents – unlike the bond arising between children and their parents in families where the parents were married. In this case the court held that the distinction between these two types of family and the bond between parent and child fell with the margin of appreciation. Here, the use of margin of appreciation (argument) operated in favour of the Irish conception of the legitimate family instead of a broad notion applied in Keegan v Ireland.9

The above mentioned two Irish cases are just a paradigmatic example of two different ways of using the margin of appreciation argument in the same area of law, limiting or broadening the notion of family life and its dimensions, discouraging or promoting one model instead of another, providing a juridical solution instead of the opposite one and, in particular addressing the issue of atypical or non-traditional family bonds or ‘others family relationships’ in comparison to those arising from the ‘legitimate’ (conventional) family.

In what follows this chapter considers some decisions of the Court on abortion, ovum donation, pre-implant embryo analysis and artificial procreation techniques, to find out if, in such subjects, which are all strongly connected to ethical, moral and social values, the case law of the Court is diachronically coherent in its various decisions or if there are considerable and relevant incoherencies and interpretative mismatches among them.

In this latter hypothesis, the explanation for these contradictions lies in the different use of the margin of appreciation argument and in the single rules and models being scrutinised by the Court. An examination of these suggests that sometimes the ECHR intends to preserve a certain national model through the margin of appreciation and at other times prefers to substitute it with another one, using different arguments, such as the general consensus of contracting States. Indeed, it seems that in the decision-making process the Court’s approach is firstly, to consider the choice of the model, and particularly that of the rule or the value that has to be promoted or discouraged among the contracting States and secondly, the choice of the hermeneutic argument that can be adopted in order to achieve this goal, according to an anti-formalistic hermeneutic approach. The consequential outcome can be very different, depending on which argument is adopted.

A first type of consequence can be that of a policy oriented programme, whereby the consensus of the majority of the contracting states can determine the need for law reforms in those states where a certain model is not known, envisaged or not already shared, because the ethical, social, and/or religious framework is quite unique.

A second type of consequence depends on the adoption of the margin of appreciation argument, which can determine the persistence of models and rules, which are not necessarily really shared among the contracting states, but are intended as profoundly connected to a certain tradition, territory or group of people.

The chapter concludes with emphasising that these interpretive strategies do not come together by themselves; they are created and ‘formed’ by real time-bound people with real and practical needs, policies and strategies10 and quite often the relation between law and politics (or policies) is expressed and manifested in jurisdictions, especially in supranational ones involved in fundamental human rights cases. Because of this, the contribution of the ECHR to certain political theories or conceptions, to the diffusion of a specific legal rules or models and to the promotion of certain values and principles, is crucial.

Therefore, it is important to consider jurists’ historical, professional and societal background, as they use language and hermeneutic processes to assess human life and interests in a discourse, which has the purpose of being acceptable in a legal context.

The decisions of courts are relevant, but we should also consider why they have decided as they did, the influences to which judges are subjected and the various origins of such influences.11 These influences may arise because of the wide support given by scholars to a doctrinal innovation, but they may also concern the judge’s background, for example, a judge appointed from an academic position may tend to put more stress on scholarly opinion than a judge who has always practiced law.

The Margin of Appreciation as a Policy-oriented Hermeneutic Argument

It is evident that a wide or a narrow approach to the margin of appreciation argument and a remarkable self-restraint in evaluating which national provisions violate articles 8, 12 and 14 of the European Convention on Human Rights has consequences for the dissemination of juridical solutions and models on the pervasiveness of legal and normative traditions of European countries throughout Europe, as law and rules are commonly formed by imitation.

The case law of the European Court of Human Rights does not produce stare decisis, but it is particularly eminent and authoritative, as one of the parties is always a contracting State whose legislation or case law is being challenged as breaching fundamental rights under the Convention.

Recourse to the margin of appreciation argument, if it is successful, has the result of establishing that there is no violation of the Convention and allows contracting States a broad competence and discretion in the way national authorities and courts assess a certain policy, maintain a model, or a certain practice as part of their culture and juridical traditions.

At the same time the analysis of the cases shows that the ECHR might use the ‘margin of appreciation’ to concentrate or diffuse solutions that are the heritage of few or many legal traditions. The result can be qualified as the attempt to promote the diffusion or the abandonment of certain cultural, ethical and legal models through a particular kind of legal order and across different geographical levels: the ECHR and national jurisdictions and legal systems, considered both in their territorial and political dimensions and not just horizontally among municipal legal systems.

We are confronted by a pattern in which governments and Parliaments are not the main actors. In fact, even if States have subscribed to the Convention on Human Rights and have legislated to give it effect or passed legislation which appears to be in contravention of the Convention, they often have to go through the process of legal transplant ‘suggested or decided’ by the European Court of Human Rights in order to comply with the Court rulings. Besides the legislative and judicial framework of those rules there may also be a governance project with concrete and practical implications, in the sense that some choices are not neutral, because they are oriented by values, which are the expression of social, religious or ethical ways of feeling;12 for example, in promoting or discouraging the use of gamete donation, therapeutic abortion, pre-embryo analysis, the recognition of same sex couple rights, the adoption of child into ‘a-typical families’ and so on, the Court promotes certain values instead of others in potential contrast, making thereby policy choices.

These policy oriented choices have practical consequences in terms of the diffusion of certain fertilisation techniques or embryo diagnostic tests, which can be used by private and public hospitals, by doctors and specialists; in terms of pharmaceutical products that can be sold or not; in terms of impact on the economic impact on certain industries and so on.

The diffusion of law, in such a hypothesis, involves the movement from a powerful centre, the Strasbourg Court, to a dependent periphery, the Member State, which occurs through the path of Court interpretation and decision making. The determining agency or formant here is the judicial one.13

From a methodological point of view, my analysis uses the dynamic approach of the legal formants theory, which allows us to consider law as a social activity, underlining how the judicial formant functions to give form to the law. The expression ‘formant’ introduced here refers to an important notion in the theoretical approach that I adopt in my reconstruction. This notion needs to be carefully defined. According to this theory a ‘formant’ is a group, a type of legal expert, or a community, institutionally involved in the activity of creating law.

Generally speaking, in the Western legal tradition we can consider legal professions to be legal formants, in the sense that the practical lawyer, the legal policy maker (a legislator, an appellate court judge, or an upper-level administrator) and legal scholar are all concurring actors in shaping the law, through statutes, holding opinions, writing articles, treaties, briefs, articulating general principles and strict rules.14 Some scholars have emphasised that ‘Law is not a harmonious set of elements, but a composite of different models and clashing texts reconciled by ingenious lawyer’.15 The notion of legal formant is more than an esoteric neologism for the traditional distinction between law, jurisprudence, and doctrine, that is, between enacted law, case law and scholarly writings.16

In this way, ECHR decisions, including the use or misuse of the ‘margin of appreciation’ argument, can be conceived of as formants, because they give a shape to a ‘piece of law’, which is in itself the product of the interpretation of a number of documents used by professionals (in our case by ECHR judges) according to their personal or (in our case, maybe) institutional strategies. As a result, a certain legal tradition (in our case the one which has been perceived as common to the majority of those European legal systems which have signed the European Convention on Human Rights) is intended to be ‘the constructing product arising from conflicting narratives, that is from competing packages of factual elements and rhetorical devices used to assemble the past in the form more apt to legitimate the present. The sense of the past and the canonical assumption of a given tradition have to be seen as the unitary result of a skilful act of crafting a variety of independent documents and texts competing for hegemony’.17

A. and others v Ireland,16 December 2010

To illustrate the impact of the ECHR under the formants’ theory I will focus in particular on some decisions on in vitro insemination and abortion, starting with A. and others v Ireland, 2010. This case concerned the Court’s evaluation of Irish legislation that criminalises abortion, with the exception of the case of danger to the mother’s life, and its relationship to Art. 8 of the Convention.18 The main aim of Article 8 is to protect individuals against arbitrary interference by public authorities; it may also impose upon States such positive duties and obligations as are necessary to ensure the effective enforcement of the rights protected therein.19 In this case, the Court was interested in deciding if there was a positive obligation on the State to provide for a real and practicable procedure for the applicant (a woman affected by cancer) to establish her entitlement to a lawful abortion in Ireland, given the due respect to the interest protected under Art. 8.

It is not the intention of this chapter to analyse general principles in defining what is meant by a ‘State’s positive obligations’ and how the Courts applied these principles to the case, which, a matter that, even if it is interesting, is beyond the scope of this chapter. I will concentrate instead on the arguments used by the Judges regarding the ‘proportionality test’ and the use of the ‘margin of appreciation’ criterion with a view to examining the balance – found in the legislation of different States – between the foetus’s right to life and the mother’s right to personal autonomy and self-determination.20 The solution confronting such conflicting interests is a hermeneutic choice that would ensure a balance between them and the prevailing of one of them over the other. Whatever the outcome would be, any interpretative option would affect family and private life, personal choices of life and many aspects of private autonomy.21

According to the Court, there is an evident trend among European States to avoid all questions connected to scientific, religious or philosophical issues about the beginning of life, which coexists with the trend to consider the right to life of the mother and her right to personal autonomy and self-determination as superior to that of the foetus, especially during the first two–four months of pregnancy.22 Applying the proportionality test, there are two elements that should be analysed:

a. the existence of a European consensus on allowing abortion; and

b. whether or not the Irish sanctions in cases of therapeutic abortion or well-being abortion represented a breach of Art. 8.

As far as point a) is concerned, there is evidence that a large consensus exists among the Council of Europe Member States in allowing abortion ‘on broader grounds than accorded under Irish law’, as only ‘three States have more restrictive access to abortion services than Ireland namely, a prohibition on abortion regardless of the risk to woman’s life’.23

In other decisions, in which the Court has found that a general consensus on matters concerning human rights exists, even if with some exceptions, it has usually concluded that this consensus narrows the ‘margin of appreciation’ of individual states. In other words, the ‘margin of appreciation’ increases if the consensus decreases or is not argued for.24 The rationale is clear: the harmonising function of the Court’s jurisprudence is gradually creating a common framework of reference in the application of individual human rights protection within State jurisdictions, ensuring equal protection regardless of their place of residence and without any discrimination.

However, in this case, it appears that even if such a consensus exists, such consensus does not affect the broad margin of appreciation of the State, because in the Court’s opinion the fact that the applicant has the right ‘to lawfully travel abroad for an abortion with access to appropriate information and medical care’ is enough to justify and consider the Irish prohibition of abortion for health and well-being reasons fair and lawful, under Art. 8 of the European Convention on Human Rights, ‘based as it is on the profound moral views of the Irish people as to the nature of life’.25

In other words, even if few countries have an abortion regime as strict as the one in the Irish legal system, and even if the consensus of the majority of the contracting States is oriented in order to broaden women’s rights to abortion and the scope of the ‘health and well-being reason’, the Court did not recognise a breach of article 8, because, according to its decision and to the Irish defensive arguments presented to the Court, the national provisions could be considered to mirror the Irish people’s moral views on the nature of life.26 Placed in the balance, here the margin of appreciation had a greater weight than the general consensus of States on a certain model or juridical solution.

This approach shifts the attention from the balance between the foetus and/or the mother’s right to life and health, to the balance between the ‘State margin of appreciation’ and the common consensus of contracting States, giving a ruling which is really far from harmonising legal rules and operational rules among those States.

According to my personal reconstruction of the scheme of arguments used by the Court, it is important to stress two points:

a. Irish law allows abortion for those who can travel abroad and it suffices to protect their private life under Art. 8;27 and

b. the thesis that Irish people have profound moral views on life, birth and foetus protection above others rights affects the European consensus and overrides it, allowing a wider ‘margin of appreciation’ to the State in such specific case and on this particular subject matter.

Under a), the argument emphasised by the applicants was that they could not have an abortion in their country of residence, and also that having to travel abroad to have an abortion was financially expensive and raised many practical and logistic difficulties concerning, for example, insurance systems, public or private medical assistance regimes, hospital services to foreigners in the State of destination and so on. On this point the Court does not really address the issue of unjustified interference in the applicants’ private life as a result of the Irish prohibition.28 Regarding b), it can be said that as a result of this decision the Court has diminished the relevance of the European consensus through the argument of ‘profound moral views’, reasoning that a specific moral conception can override the European consensus.29

The decision in this case was to preserve the strict abortion regime in force at the time in Ireland, so it is characterised by the prevailing of the margin of appreciation argument. In my opinion the Court here has adopted a conservative policy, preserving a model (the Irish one), which was, according to the analysis of the Court itself and to scholarly opinions and research studies commissioned by the Council of Europe (cited by the Court in the opinion), far from the one shared among the majority of the contracting States.

Here the Court admitted that the Irish ‘profound moral views’ (on the foetus’s right to life) – despite evidence that this is not so profound and monolithic in the Irish public debate,30 can override the European consensus (on therapeutic abortion).

S.H. and others v Austria

First Decision of the Chamber, 1 April 201031

The Chamber held that Austrian legislation, prohibiting in vitro