The State's "margin of appreciation" doctrine is a fundamental component of the European Convention system of Protection of Human Rights. While human rights are not a state's private area of jurisdiction, the idea of the European Convention on Human Rights (ECHR) is that this statute differences between all domestic legal systems do not have to arise, and states are thus empowered to limit some rights. In fact, the Court wants to preserve the cultural specificity proper to each High Contracting Party. This doctrine has been developed in the Strasbourg case law, and is an obvious translation of the subsidiary principle. Indeed, as the European Court on Human Rights (EctHR) said "by reason of their direct and continuous contact with their vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements". The notion of margin of appreciation is also the translation of an ideological requirement. Through its doctrine, the Court wants to promote the "pluralism, tolerance, and broadmindedness without which there is no "democratic society" ".
[...] And finally, there was nothing obvious that Ireland was unaware of its other international obligations. Thus, the Court satisfied that Ireland was not in breach with article 15 of the Convention. This case shows therefore that, in assessing the existence of a public emergency, the states have a wide margin of appreciation. Nonetheless, it does not mean that states have an “unlimited power” in this matter: as the Court said, Strasbourg organs have the power to “rule on whether the States have gone beyond the “extent strictly required by the exigencies” of the crisis. [...]
[...] Indeed, when facing with those delicate issues, the Court prefers not to rule. In the Handyside case, the Court did not condemn the seizure by the British authorities of little Red Schoolbook” by reason of its sexual nature (conflicting with the moral). In this special case, Strasbourg satisfied that is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals”. The same holds good for the issue of the beginning of the life, as in the Open Door and Dublin Well Woman v Ireland (1992) case, where two societies have been the subject of a prohibition by Ireland to give to pregnant women any information about the possibility to have an abortion abroad (the abortion was prohibited in Ireland), on the ground that these information were detracting the right to life (protected by Irish law and the ECHR[9]), and the morals. [...]
[...] Indeed, the latter seems systematically privileged by the Court, at the expense of other rights. As example, it is possible to cite the Sunday Times v UK case (1979), where some journalists from the “Sunday times” brought a claim before the Commission, alleging a violation of article 10 of the Convention by reason of the prohibition pronounced by the High Court to publish information about current trials. In this case, even if the restriction was prescribed by law and had a legitimate aim (the maintain of the authority and impartiality of the judiciary) the Court, quoting its Handyside's jurisprudence, satisfied that there was not a social need sufficiently important permitting to restrain the freedom of the press. [...]
[...] To conclude, we have to admit that the “margin of appreciation” doctrine demonstrates a certain realism from Strasbourg which, in spite of being a supranational institution, recognizes that the Court is necessarily further from the national realities than the States, which need therefore some discretion to respond to the fact that the Convention a living instrument which has to be interpreted in light of the modern day conditions”[10]. Bibliography - O'Donnell, Thomas, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court on Human Rights (Human Rights Quarterly 474; 1982). - Doolan, Brian, Lawless v Ireland (1957-1961): The first Case before the European Court of Human Rights. [...]
[...] Article 10 quote an exhaustive list of those situations, talking about national security; territorial integrity or public safety; prevention of disorder or crime; protection of health or morals; protection of the reputation or rights of others; prevention of the disclosure of information received in confidence; the maintain of the authority and impartiality of the judiciary. And notably matters without European standards. Article 2 of the Convention: “Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”. As the Court said at various times in its case law. [...]
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