The European Court of Human Rights, with the principle of subsidiarity and the doctrine of margin of appreciation, recognises that the primary role in the implementation of the Convention belongs to the state parties and that cultural relativism may lead to changes in the practice of protecting rights. In recent years, there has been growing discontent in Europe with the judgments of the ECtHR, particularly those concerning illegal migration and refugee issues. These discourses and the argument that the ECtHR should pay more attention to the doctrines of subsidiarity and margin of appreciation are coherent. The series of High-Level Conferences, organized in Interlaken in 2010, is a reform attempt to find solutions to the problems the ECtHR has faced in recent years, particularly the increasing workload. In these meetings, organized at the initiative of the Committee of Ministers and the States Parties, the main demands of the States Parties give weight to the principle of subsidiarity and the application of a wider margin of appreciation. This study focuses on the political atmosphere accompanying this process and whether the ECtHR has adopted a more deferential attitude towards state parties in this process by offering a wider margin of appreciation..
The European Convention on Human Rights (ECHR/Covenant) and the human rights protection system established by this Convention aim to reveal and protect the founding members’ common identity and shared values. However, it is difficult to say that the Convention is applied in the same way by the States Parties and the rights regulated are perceived in the same way. In this respect, the Convention regulates the agreed rights and establishes minimum standards rather than aiming to set the highest standards. The European Court of Human Rights (ECtHR/CtHR), with the principle of subsidiarity and the doctrine of margin of appreciation, recognises both that the primary role in the implementation of the Convention belongs to the States Parties and that cultural relativism may lead to changes in the practice of protecting rights. With the principle of dynamic interpretation, the ECtHR also recognises that the view of the rights enshrined in the Convention may change over time.
After the collapse of the Soviet Union, with the inclusion of Eastern European countries in the system, the workload of the Court increased, and it was observed that the new member states had been subjected to systematic violations. Therefore, the Court has been and continues to be in a continuous reform process during this period. In recent years, these reform attempts have been linked to the dissatisfaction of the state parties with the Court. The aim of keeping the states parties within the treaty system has pushed the Court to apply some judicial tactics.
In the Interlaken Process, the last of the reform initiatives, the state parties’ discourse that the Court should pay more attention to the principles of margin of appreciation and subsidiarity should be read together with these discontents. In parallel with the Court’s desire to focus on more ‘serious’ violations and to issue fewer admissibility decisions, the field of problems that are hoped to be solved at the domestic level seems to have expanded.
This paper focuses on the question of whether the Court has granted a wider margin of appreciation to state parties and one of the possible reasons for a wider margin of appreciation, namely, state parties’ dissatisfaction with the ECtHR and the political atmosphere the Court faces. Do state parties want the ECtHR to have a sustained but low level of effectiveness in order not to undermine their legitimacy and to keep their political room manoeuvre-wide?
The study, first, analyses the objections to the Court through the examples of the United Kingdom, Denmark, Russia and Turkey, and then examines the reflections of these objections on the reform process of the ECtHR. In this context, the Interlaken and subsequent reform meetings and the declaration texts that emerged from these meetings are analysed. In the doctrinal analyses of these meetings, two opposing camps can be identified that answer the question of whether political pressures influenced the Court in opposite ways. In this study, the views of these two camps are evaluated together with the examples of judgements that have been cited in recent years to support the proposition that the margin of appreciation has been kept too wide. In this respect, the view that the Court’s margin of appreciation has given more room for discretion by adopting a respectful attitude towards States Parties and has resorted to judicial tactics in this way is supported.
It is also argued that the transformation of the Court has been more influenced by the so-called ‘central’ members, such as the United Kingdom and Denmark, rather than the dissatisfaction of the countries where systematic violations have occurred with the Court’s decisions. In particular, the United Kingdom’s disengagement from the system is considered to be a greater danger for the dissolution of the system. This argument is also supported by studies that found that the margin of appreciation is used more by Western European members such as the United Kingdom.
On the other hand, the fact that the Interlaken Process was terminated without resolving the budgetary problem frequently cited by the Court and the Council leads to the conclusion that the state parties ignored the vulnerability of the Council due to its budgetary problem. When the demand for a wider margin of appreciation and the reality of the neglect of the fundamental problems of the Court and the Council are considered together, it can be argued that States Parties aim to reduce the effectiveness of the human rights protection system around the ECHR.
ECtHR, margin of appreciation, subsidiarity, political backlash, Interlaken
