The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European ...The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European Convention to an inflation of language used or misused by the Strasbourg Court to preserve the State's 'room for manoeuvre' or 'latitude of deference or error.' In this paper, I divide the concept of margin of appreciation into two categories: the substantive and structural concept. The Strasbourg Court usually generously defers to national decisions in structural scrutiny where it has to respect European pluralism and the collective interests of the contracting parties unless domestic decisions are regarded as 'manifestly unreasonable.' In contrast, the European Human Rights Court scrutinizes carefully in the substantive sense of margin of appreciation. Some factors or test approaches will be identified first, by which the Court substantively narrows or limits the scope of margin preserved for the States. The result of two conceptual margins of appreciation may be reciprocally transformed in some circumstances. When the collective good surely undermines the core of Convention rights, the Court will not stand with the domestic argument since it must ensure the implementation of pan-European human rights standards. On the other side, the Court has no capacity to further increase strict scrutiny in cases where there is a complicated relationship between the means and ends in the proportionality test, implying that domestic courts are better placed than the supranational court given the fact that they know better the local reality and have more local knowledge.展开更多
The principle of the best interests of the child,as a criterion for substantive review,is conceptually ambiguous and uncertain in its application.To mitigate this dilemma in the application of the principle of the bes...The principle of the best interests of the child,as a criterion for substantive review,is conceptually ambiguous and uncertain in its application.To mitigate this dilemma in the application of the principle of the best interests of the child,the European Court of Human Rights(ECHR)has made a procedural transition in the interpretation and application of this principle,shifting from conducting specific proportionality analysis or interests balancing in cases related to children to examining whether States Parties have applied the principle of the best interests of the child in their judicial procedures.Moreover,ECHR has developed three procedural review schemes:holistic reviews,key factors-based reviews and factor list-based reviews.Compared with substantive reviews,procedural reviews adhere to the ECHR doctrine of margin of appreciation,restrict the free discretion of the court,give play to the effect of procedural autonomy,and pursue the value of subjective procedural justice,which has its own unique theoretical value and practical significance,and provides a feasible reference for China to interpret and apply the principle of the best interests of the child.展开更多
Strasbourg’s application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court ...Strasbourg’s application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union(CJEU) in the complete sense.Consequently,the Strasbourg application of the proportionality has been depicted as a "mysterious house" for the reason that it lacks of certainty.Therefore,some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law.Generally,the proportionality test has two internal functions for the Strasbourg judges:(1) strike fair balance between/among the competing interests;(2) testing on the reasonableness and appropriateness between the measures employed and aim pursued.In the first category,the primary task of the Court is to protect the scope of "essence" of the Convention rights from the interference of collective goods relying on the interest-based rights theory.Beyond this scope,the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities.In some sensitive judgments,the Strasbourg Court tends to impose the onerous responsibility of "burden of proof" to the State authorities,or strategically defers to the domestic decisions unless they will be found "manifestly unreasonable".Secondly,the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued,and then it has to decide whether a less intrusive alternative existed or will possibly be found or not.Sometimes,the Court might impose state authorities an obligation looking for a new alternation.However,due to subsidiarity characteristic of the Strasbourg Court,the task of the assessments sometimes is complicated and time-consuming,so the Court are not capable of evaluations in all occasions.Finally,the Court could strike down the "chilling consequence" caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order.展开更多
文摘The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European Convention to an inflation of language used or misused by the Strasbourg Court to preserve the State's 'room for manoeuvre' or 'latitude of deference or error.' In this paper, I divide the concept of margin of appreciation into two categories: the substantive and structural concept. The Strasbourg Court usually generously defers to national decisions in structural scrutiny where it has to respect European pluralism and the collective interests of the contracting parties unless domestic decisions are regarded as 'manifestly unreasonable.' In contrast, the European Human Rights Court scrutinizes carefully in the substantive sense of margin of appreciation. Some factors or test approaches will be identified first, by which the Court substantively narrows or limits the scope of margin preserved for the States. The result of two conceptual margins of appreciation may be reciprocally transformed in some circumstances. When the collective good surely undermines the core of Convention rights, the Court will not stand with the domestic argument since it must ensure the implementation of pan-European human rights standards. On the other side, the Court has no capacity to further increase strict scrutiny in cases where there is a complicated relationship between the means and ends in the proportionality test, implying that domestic courts are better placed than the supranational court given the fact that they know better the local reality and have more local knowledge.
文摘The principle of the best interests of the child,as a criterion for substantive review,is conceptually ambiguous and uncertain in its application.To mitigate this dilemma in the application of the principle of the best interests of the child,the European Court of Human Rights(ECHR)has made a procedural transition in the interpretation and application of this principle,shifting from conducting specific proportionality analysis or interests balancing in cases related to children to examining whether States Parties have applied the principle of the best interests of the child in their judicial procedures.Moreover,ECHR has developed three procedural review schemes:holistic reviews,key factors-based reviews and factor list-based reviews.Compared with substantive reviews,procedural reviews adhere to the ECHR doctrine of margin of appreciation,restrict the free discretion of the court,give play to the effect of procedural autonomy,and pursue the value of subjective procedural justice,which has its own unique theoretical value and practical significance,and provides a feasible reference for China to interpret and apply the principle of the best interests of the child.
文摘Strasbourg’s application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union(CJEU) in the complete sense.Consequently,the Strasbourg application of the proportionality has been depicted as a "mysterious house" for the reason that it lacks of certainty.Therefore,some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law.Generally,the proportionality test has two internal functions for the Strasbourg judges:(1) strike fair balance between/among the competing interests;(2) testing on the reasonableness and appropriateness between the measures employed and aim pursued.In the first category,the primary task of the Court is to protect the scope of "essence" of the Convention rights from the interference of collective goods relying on the interest-based rights theory.Beyond this scope,the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities.In some sensitive judgments,the Strasbourg Court tends to impose the onerous responsibility of "burden of proof" to the State authorities,or strategically defers to the domestic decisions unless they will be found "manifestly unreasonable".Secondly,the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued,and then it has to decide whether a less intrusive alternative existed or will possibly be found or not.Sometimes,the Court might impose state authorities an obligation looking for a new alternation.However,due to subsidiarity characteristic of the Strasbourg Court,the task of the assessments sometimes is complicated and time-consuming,so the Court are not capable of evaluations in all occasions.Finally,the Court could strike down the "chilling consequence" caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order.
