Thursday 8 September 2011

Article on Inflation of Margin of Appreciation

The newest issue of our own SIM-based Netherlands Quarterly of Human Rights (vol. 29,No.3, 2001) features an article by Jan Kratochvíl, working at the registry of the European Court of Human Rights, entitled 'The inflation of the margin of appreciation by the European Court of Human Rights'. This is the abstract:

The doctrine of the margin of appreciation, despite being repeatedly used by the European Court of Human Rights, is still to some extent mysterious. Given the doctrine's ambiguity, this article first endeavours to describe it and identify its different usages. It then argues that there is an inflation of the doctrine by its unnecessary application in a number of cases. This excessive use is considered to be unfortunate because the doctrine has a role to play in specifically circumscribed circumstances where it varies the strictness of scrutiny conducted by the Court. Based on the existent case law of the Court, the article provides a set of distinct tests that the Court can apply when invoking a particular margin of appreciation and argues for a predictable and consistent use of the doctrine.