JURIST Guest Columnist Elena Butti, University of Utrecht Class of 2014, considers whether the European Court of Human Rights made a strategic use of the margin of appreciation doctrine to solve the contradiction between the decisions in the cases Aktas v. France and Lautsi v. Italy…

The increasing tendency of people to cross national borders and settle in foreign countries has brought the issues of religious differences and of the limits to be imposed on the display of religious symbols to the forefront of discussion in the public and the courts. Recently, the European Court of Human Rights (ECtHR) considered the display of religious symbols in public school in two cases, Aktas v. France and Lautsi v. Italy.

Freedom of thought, conscience and religion is guaranteed by Article 9 of the European Convention of Human Rights (ECHR) [PDF] and by Sections 18 of both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The right of freedom of religion includes the right to express it through the explicit display of symbols. However, countries need to maintain a neutral enough environment for citizens to feel free to retain their own beliefs. Notwithstanding the breadth with which freedom of religion is guaranteed in international legislation, individual countries apply this principle in different ways, taking into account local conditions that are more easily assessed by local than by international authorities.

With the French Revolution of 1789, the French people sought to overthrow not only the monarchy but also the whole political and social traditional system, including the predominance of the Catholic Church. Because of its history, the French conception of state secularism is probably the most rigidly defined in Western Europe. French laïcité is a unique principle which includes “strict separation of Church and State, the concept of the State as the protector of individuals against religious power, and the notion that religion should be relegated to the private sphere.” Culturally, French people are very attached to the related concept of identité nationale. The identité is something unquestionable in France: from the moment in which foreigners enter the French territory and decide to settle down in France, it becomes their duty to absorb French culture and customs, leaving their origin behind and fully conforming to the unquestionable values of the République.

The Aktas case was brought before the ECtHR by the representatives of six pupils alleging a violation of their right to private life, to freedom of religion and to freedom of expression. To defend itself, the French government relied on the principle of state secularism and on Law 2004-228, claiming that the display of conspicuous religious symbols in public spaces harms the freedom of conscience and religion of others and the neutrality of the public space.

The Court, recognizing le role de l’État en tant qu’organisateur neuter et impartial de l’exercise des diverses religions, acknowledged that the state is entitled to limit the freedom to manifest one’s religion in order to safeguard the French constitutional principle of laïcité. As long as this objective est conforme aux valeurs sous-jacentes à la Convention, the court held that the appreciation regarding the necessity of restrictions falls entirely within the margin of appreciation of the state. In other words, provided that there is no violation of the ECHR (which, according to the court, did not exist in the present case), the French government is free to impose the limitations to the display of religious symbols that it considers necessary to safeguard state secularism and the rights and freedoms of others.

The Italian background presents an antinomy. The Italian Constitution [PDF] proclaims freedom of religion and equality of all citizens regardless of their religious beliefs and Article 7.1 clearly asserts the unequivocal separation between church and state. Yet, the relationship between the Catholic Church and the Italian state is regulated by the Patti Lateranensi, which gives special treatment to the church such as tax facilitations for church estates, full discretion to the church for the appointment of bishops and the optional teaching of Catholic religion in schools.

In Lautsi v. Italy, a mother questioned the legitimacy of the provision of the Italian government to display crucifixes in classrooms in the public school attended by her children. The final outcome of the Lautsi case was favorable to the Italian government. In the 2011 judgement, the court held that it found no violation of the parents’ right to educate children nor of the children’s right to freedom of religion, concurring with the government’s interpretation of the crucifix on classrooms walls as an essentially passive symbol. Believing that, in the absence of human rights violations, Italy enjoys a margin of appreciation in the way it decides to implement the rights contained in the ECHR, the court considered its duty to “respect the contracting States’ decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination.” The lack of European consensus on the matter offered another argument in favor of this approach. In other words, provided that there is no violation of the ECHR, then the Italian government is free to display the crucifix in public spaces, because this decision falls within its margin of appreciation.

The decisions issued in the two cases present a contradiction. In Aktas, the court accepted the French government’s argument that the display of religious symbols on a person in a public space does harm the freedom of religion of others, whereas, in Lautsi, the court accepted the Italian government’s argument that the display of the crucifix from the state authority in public spaces does not harm the freedom of religion of the people exposed to it. Clearly, there is some inconsistency in the court’s acceptance of both arguments.

The court solved this inconsistency by making a wide use of the margin of appreciation doctrine. For the court to rely on the contracting states’ margin of appreciation means that the court, as long as the actions undertaken by the national state do not violate any rights and freedoms contained in the ECHR, decides to leave up to the discretion of that particular state the question of how to apply the content of the ECHR to their national context. The court therefore accepts that the content of the ECHR can be interpreted differently by different States, resulting in different modes of implementing the same rights and freedoms. In both the Aktas and Lautis cases, the right to freedom of religion was given a different interpretation and application by the French and Italian governments. France finds the right to freedom of religion is respected by providing visible external neutrality of the public space. Yet, Italy finds the right to freedom of religion is respected by ensuring that no positive substantial impositions come from the religious symbol possibly displayed. In France, the mere presence of a religious symbol is considered harmful, while in Italy it is not considered so as long as its display does not give birth to any form of indoctrination or positive obligation threatening the right to freedom of religion.

Supporters of the margin of appreciation doctrine present two arguments to defend its use. The first is the institutional competence argument: in some cases, national authorities are better placed than an international body to decide a concrete application of the ECHR to the local context. The second is the subsidiarity argument: when the ECtHR was instituted, the idea behind its establishment was the creation of a subsidiary body to national states, not of a superior one. It follows that the court has no sovereignty on nor is superior to national state. Its main purpose is limited to providing assistance to national courts regarding the interpretation of the ECHR.

This doctrine can thus be said to constitute a strategic tool for the court to step back from its responsibility when facing problematic cases concerning state sovereignty. In these two cases, leaving the final say and responsibility to national authorities constituted an advantageous strategy for the court because it enabled it to evade the burden of direct responsibility, to avoid protests from national states and to maintain its short-term prestige, issuing decisions that national governments were likely to respect and even praise.

The strategic use of the margin of appreciation doctrine by the court seems not to be an exception limited to these two cases. Indeed, there has recently been an increase in the use of this doctrine because the national states are less and less willing to accept the ECtHR as a superior authority. Additionally, in recent years many non-compliant states have signed the ECHR, thereby increasing the number of problematic cases faced by the court. However, too wide a use of the margin of appreciation doctrine produces harmful negative consequences, namely the non-compliance of the court with its mandate, the lack of uniformity in the legal interpretation of the ECHR and the long-term loss of prestige of the court. Before the situation generates permanent negative consequences, a change of approach is needed.

It is clear that some margin of appreciation is vital but too much of it can prove fatal. At some point, the court must consider where to draw the line. A criterion to determine the border between necessary and harmful margin could be to set its crossing point in the moment when the court reaches a contradiction with itself, precisely as happened in the present cases. Special attention and care should be devoted from the court to always provide an objective, convincing and unambiguous argumentation explicitly explaining the motives behind any judgment. When this explanation lacks clarity and accuracy, and is not totally convincing and leaves room for debate, then the court is not fully complying with its mandate. In cases which look similar, and in which the court reaches different outcomes, as in the Aktas and Lautsi cases, clarity and ambiguity become matters of primary importance. In the increasingly complicated and fragmented European panorama that lies ahead of us, the existence and the effective operation of prestigious international institutions is something that we cannot afford to lack.

Elena Butti studies international law and anthropology, focusing on human rights, at the University of Utrecht. At the University of Utrecht, Butti serves as the Director of External Relations in the Law Society. Currently, she studies at the Summer Institute for International Law & Policy.

Suggested citation: Elena Butti, The Strategic Use of the Margin of Appreciation Doctrine in the European Court of Human Rights JURIST – Dateline, July 1, 2012, http://jurist.org/dateline/2012/07/elena-butti-human-rights.php.