The European Court of Human Rights and Standards of Proof: An Evidential Approach Toward the Margin of Appreciation
Book chapter in L. Gruszczynski, W. Werner (eds.), Stardard of Review in International Courts and Tribunals, OUP, Forthcoming
Posted: 5 Feb 2014
Date Written: October 1, 2013
Abstract
The focus in this chapter will be placed on the so-called 'original' meaning of the margin of appreciation doctrine. In this meaning, the margin of appreciation essentially delineates the relationship between the state and the Court, which is also referred to as the principle of subsidiarity. This principle aims to find a balance between the sovereignty of states on the one hand, and the Court’s supervisory role on the other. As often pointed out, this balance is based on the Convention being the lowest common denominator, thus giving ample space for national diversity in the protection of human rights. In this original meaning, the margin of appreciation focuses on the extent to which a state has discretion in a particular case, and at the same time it also delineates the level of scrutiny applied by the Court. Conceptually, the 'level of scrutiny' refers to the intensity with which the fact-finding body examines the facts and arguments submitted by the parties, so it can be regarded as the other side of the margin of appreciation. In terms of evidence law, it can be argued that the degree of discretion also assigns the extent to which the allegations have to be proven by the state in order to be accepted by the Court, which is called the standard of proof.
Against this backdrop, this chapter looks at the margin of appreciation through the lens of the standard of proof and (1) explores the standards of proof applied by the ECtHR in three sets of cases as well as identifies the main factors that seem to influence the designation of these standards (section 2) and (2) analyses to what extent this procedural issue as devised and applied by the Court can be regarded as legitimate (section 3). The legitimacy-analysis will be based on Thomas Franck’s theory on procedural legitimacy. In the conclusion some general observations will be made on the margin of appreciation based on the standard of proof analysis (section 4).
Keywords: Standard of proof, margin of appreciation, European Court of Human Rights
Suggested Citation: Suggested Citation