11 Colum. J. Eur. L. 113 (2004)

Jeffrey A. Brauch. Dean and Professor of Law, Regent University School of Law, B.A.; University of Wisconsin, 1985; J.D., with honors, University of Chicago, 1988.

From each train stepped 1,500 prisoners. Most were Jews; others were gypsies, homosexuals, and political dissidents. 1,200-1,300 faced immediate execution as S.S. doctors examined them and sent them to gas chambers or firing squads. The trains arrived at the death camps from all over Europe from 1942 to 1945. By the end of World War II, six million Jews and nearly that many non-Jews had been executed. Over twenty-six million civilians also died as combatants frequently targeted population centers. Europe was devastated. From the late 1930s through 1945, Europe was host to perhaps the most egregious violations of human rights and the rule of law ever recorded.

This stark reality weighed heavily on the delegates who gathered for a Congress at the Hague in 1948. So did an unshakeable conviction: what happened to and in Europe during World War II must never happen again. From the Hague Congress emerged the Council of Europe, the main regional body dedicated to the protection of human rights in Europe. While the Council began with ten member States, it now boasts forty-six. The Council is committed to certain core values: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within [its] jurisdiction of human rights and fundamental freedoms.”

At its inception, the Council of Europe’s primary task was to formulate a “Charter of Human Rights guaranteeing liberty of thought, assembly and expression.” The Council quickly began work on such a charter, ultimately crafting the European Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”). The document was drafted in 1949 and 1950. It was signed in 1950.10 Since it came into force in 1953, the human rights apparatus established through the Convention has been the most comprehensive system protecting human rights in the world. It has been described as “the most advanced and effective human rights treaty system” and “the world’s most successful system of international law for the protection of human rights.”

The Convention guarantees a wide range of rights including: right to life; freedom from torture, inhuman, or degrading treatment or punishment; freedom from slavery; right to liberty, security of person, and due process of law; right to family and private life; freedom of thought, conscience, and religion; freedom of expression and of peaceful assembly. The Convention established two main institutions to protect these rights: the European Commission of Human Rights and the European Court of Human Rights. Initially, the Commission had the primary role in hearing human rights complaints; the Court became involved only after a referral from the Commission. In the early 1990s, particularly after a number of eastern European nations joined the Council, the Court’s caseload increased dramatically. The Court could no longer handle the volume of cases submitted to it. The bifurcated structure of Commission and Court was seen as a source of delay and duplicated efforts. On November 1, 1998, Protocol 11 to the Convention became effective. Under it the functions of the Commission and Court were combined and are now performed by a full-time Court. The Court hears cases brought by individuals against member States as well as complaints brought by one member State against another.

From the beginning, the creation of the Court was viewed as crucial to the protection of human rights and the rule of law. The Danish participants in the Hague Congress argued that, once a human rights court was established, “right and justice and the rule of law will have gained a decisive victory.” The rule of law is key to the work of the Council and the Court in particular. The Council defines itself as “an intergovernmental organisation which aims: to protect human rights, pluralist democracy and the rule of law.”

Despite its well-deserved accolades and real successes, the Court has not always acted consistently with this aim or with the Council’s mandate to protect the rule of law. Indeed, in interpreting the Convention, the Court has increasingly relied on a doctrine-the margin of appreciation-that significantly threatens the rule of law. This article is about that threat. Part II describes the history and development of the margin of appreciation. Part III describes the rule of law and its implications for courts. Part IV illustrates how the margin of appreciation threatens the rule of law in Europe. Part V calls for the Court to abandon the margin of appreciation and return to more focused attention on the text of the Convention.