The Margin of Appreciation in European Human Rights Law

Introduction

The Margin of appreciation is one of the most important doctrines in European human rights law because it addresses a basic problem within the European Convention on Human Rights: how can a supranational court enforce common rights standards across states with different constitutional traditions, moral outlooks, political priorities, and social conditions? The doctrine is the Court’s main tool for answering that problem. It determines how much latitude national authorities retain when applying Convention rights, while preserving the European Court of Human Rights as the final supervisory body (Handyside v United Kingdom, 1976; Greer, 2000).

At a practical level, the doctrine answers a question often asked by lawyers and students: what does the margin of appreciation actually do? It does not suspend rights. It does not allow states to define Convention rights however they wish. It operates as a doctrine of judicial deference, shaping the intensity of Strasbourg review in cases where domestic authorities claim that local conditions, democratic choices, or institutional expertise justify a degree of national discretion (Letsas, 2006; Legg, 2012).

That feature explains both the doctrine’s influence and the criticism it attracts. Supporters argue that the Convention system could not function without some degree of deference to domestic courts, legislatures, and public authorities. Critics respond that the doctrine can become a vehicle for uncertainty, weak reasoning, and excessive tolerance of rights restrictions. Both positions identify a real aspect of the doctrine. Its importance lies precisely in the fact that it stands at the point where universal rights meet legal and political diversity within Europe (Macdonald, 1998; Greer, 2000).

The modern form of the doctrine is usually traced to Handyside v United Kingdom, where the Court accepted that national authorities may be better placed than an international judge to assess certain local needs, especially in matters touching public morals, but also insisted that such discretion remains subject to European supervision (Handyside v United Kingdom, 1976). That judgment has become the classic point of departure because it captures the dual structure of the doctrine. On the one hand, domestic authorities are granted latitude. On the other hand, Strasbourg keeps the final word on compatibility with the Convention.

Over time, the doctrine moved far beyond the context of obscenity and public morals. It became central to cases on private life, family life, religion, freedom of expression, discrimination, electoral rights, bioethics, migration, and national security. Its constitutional significance was later reinforced by Protocol No. 15, which inserted express references to subsidiarity and the margin of appreciation into the Convention’s Preamble. That amendment did not create a new doctrine. It confirmed the importance of one already developed in the Court’s case law, and it did so while maintaining the Court’s supervisory jurisdiction over national choices (Council of Europe, 2021; Frantziou, 2014).

The close link between the margin of appreciation and subsidiarity is essential. Under the Convention system, national authorities have the primary responsibility to secure rights and freedoms within their legal orders. Strasbourg is not designed to replace domestic institutions in every contested moral or policy dispute. Its task is supervisory. Even so, subsidiarity does not mean passivity. It does not convert the Court into a body that merely checks for procedural good faith. The Court remains responsible for deciding whether national interference with a Convention right is lawful, legitimate, and necessary in a democratic society (Spielmann, 2012; Council of Europe, 2021).

The doctrine is also closely connected to proportionality. In most cases, the real issue is not whether a right exists, but whether a restriction on that right can be justified. That is where the margin of appreciation does most of its work. It affects how closely the Court examines the reasons given by the state, how much weight is assigned to domestic judgment, and how strictly the Court tests the fit between the measure adopted and the aim pursued. The breadth of the margin is therefore never fixed. It changes according to the nature of the right, the seriousness of the interference, the existence of European consensus, and the quality of domestic reasoning (Arai-Takahashi, 2002; Legg, 2012).

A strong legal analysis of the doctrine must therefore avoid two errors. The first is to describe it in vague terms as mere “room for manoeuvre,” which explains very little. The second is to treat it as a disguised surrender of judicial authority, which is equally inaccurate. The doctrine is better understood as a structured technique of review. Its legitimacy depends on whether the Court explains with discipline why deference is justified in one class of cases and not in another.

This article argues that the margin of appreciation is a necessary but unstable element of European human rights adjudication. It is necessary because the Convention operates across a plural legal order and cannot function as if all states shared identical constitutional traditions or social judgments. It is unstable because its boundaries are not mechanically determined and because poorly reasoned reliance on it can weaken rights protection. The central task is therefore not to ask whether the doctrine should exist at all, but under what conditions it strengthens the Convention system rather than diluting it.

The discussion that follows examines the doctrine as a method of review rather than a slogan of deference. It begins with its concept, legal character, and historical development. It then analyses the factors that shape the breadth of the margin, including the nature of the right, European consensus, vulnerability, institutional competence, and domestic process. The article finally evaluates the doctrine’s strengths, weaknesses, and current direction in Strasbourg jurisprudence, with sustained attention to examples that show how the doctrine operates in practice rather than in abstraction.

1. Concept and Legal Character

1.1 Definition of the doctrine

The margin of appreciation is best understood as a doctrine of variable judicial deference. It does not create a separate exception to Convention rights. It is not a reservation mechanism, and it does not authorize contracting states to determine for themselves the final meaning of the Convention. Its legal function is narrower and more technical: it regulates the intensity with which the European Court of Human Rights reviews a national measure that restricts or structures the exercise of a Convention right (Greer, 2000; Arai-Takahashi, 2002).

That point matters because weak explanations of the doctrine often confuse discretion with immunity. The margin of appreciation does not place domestic action beyond review. It simply means that Strasbourg will not examine every national judgment with the same level of strictness. The breadth of the margin changes according to the right involved, the factual and social context, the legitimacy of the aim pursued, the existence or absence of European consensus, and the quality of domestic reasoning (Letsas, 2006; Legg, 2012). The attached material captures this accurately when it describes the doctrine as an analytical tool rather than a blanket exemption.

The classic judicial formulation appears in Handyside v United Kingdom (1976). In that case, which concerned a restriction on expression justified on grounds of public morals, the Court accepted that national authorities are, in principle, better placed than an international judge to assess certain local needs. At the same time, it insisted that such national appreciation is never unlimited, because the Court remains responsible for deciding whether the restriction is compatible with Article 10. The enduring significance of Handyside lies in this dual structure: deference is possible, but supervision remains European (Handyside v United Kingdom, 1976). The uploaded reform note states the point well: the domestic margin goes hand in hand with European supervision.

The doctrine therefore belongs to the law of review, not to the law of derogation or treaty opt-outs. It tells the Court how closely to scrutinize a national decision. It does not tell the Court to abandon scrutiny. For that reason, it is more accurate to describe the margin of appreciation as a standard of review than as a substantive right of states. Recent academic treatments make the same distinction, emphasizing that the doctrine reflects one deferential mode of review within the Strasbourg system rather than a general licence for state preference (Legg, 2012; González Hauck et al., 2024).

A further clarification is necessary. The doctrine is not conceptually identical to all forms of deference. Courts defer for many reasons, including factual uncertainty, institutional competence, and democratic choice. The margin of appreciation is a particular Convention doctrine developed by the ECtHR within a multistate regional order. It is tied to the structure of the Convention, the diversity of the contracting parties, and the Court’s supervisory role within that system (Macdonald, 1998; Greer, 2000).

1.2 Margin, subsidiarity, and final supervision

The doctrine cannot be understood properly without the principle of subsidiarity. Under the Convention system, the primary responsibility for securing rights and freedoms lies with national authorities. Domestic courts, legislatures, and administrations act first. Strasbourg intervenes only after national processes have run their course. That institutional arrangement explains why some deference is built into the system. It does not follow, however, that domestic institutions possess final interpretive authority over Convention compliance (Council of Europe, 2013; Spielmann, 2012).

This distinction between primary responsibility and final authority is central. Subsidiarity does not reduce the ECtHR to a courtesy reviewer that merely checks whether a state acted in good faith. The Court remains the authoritative interpreter of the Convention. National authorities apply the Convention first, but Strasbourg decides in the end whether the restriction complained of was lawful, pursued a legitimate aim, and was necessary in a democratic society. That is why the doctrine is compatible with strong judicial review, even when the Court chooses a deferential standard in a particular case (Letsas, 2006; Legg, 2012).

Protocol No. 15 should be placed here because its significance is institutional. By adding a reference to subsidiarity and the margin of appreciation to the Convention’s Preamble, it did not hand control of the Convention back to the states. It affirmed that the High Contracting Parties have the primary responsibility to secure Convention rights, while making equally clear that they do so subject to the supervisory jurisdiction of the Court. The attached PDF reproduces the key preambular language and shows why the amendment matters: the doctrine is now expressly acknowledged in the treaty framework, but still on terms defined by Strasbourg case law.

The same point is reinforced by the explanatory approach that accompanied Protocol No. 15. The objective was not to recast the doctrine in favour of national autonomy. The aim was to embed more clearly the relationship between domestic protection and supranational supervision. In legal terms, that means subsidiarity justifies deference in some circumstances, but never displaces the Court’s interpretive supremacy on the question of Convention compatibility (Council of Europe, 2013; Bates, 2010). The attached material reflects this by stressing that codification of the margin was intended to remain consistent with the doctrine as developed in the Court’s case law.

This institutional balance explains why the doctrine is better viewed as a mechanism of coordination than as a retreat from rights protection. It allows Strasbourg to recognize that national authorities often possess stronger democratic legitimacy and closer knowledge of local conditions. It also preserves a common European minimum floor of rights protection. Once that floor is threatened, subsidiarity no longer justifies passivity. It requires supervision (Greer, 2000; Arai-Takahashi, 2002). The attached UCL briefing reaches the same conclusion when it describes the doctrine as a means of coordination between national and European law while preserving a minimum standard of rights protection.

1.3 Where the doctrine operates

The margin of appreciation is most visible in the qualified rights of the Convention, especially Articles 8 to 11. These provisions allow interferences with protected rights when the interference is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society. That final requirement is where the doctrine usually does its most important work. It shapes the Court’s proportionality analysis by influencing how strictly Strasbourg tests the national justification offered for the restriction (Handyside v United Kingdom, 1976; Sunday Times v United Kingdom, 1979).

This is why the doctrine belongs inside the proportionality review. It is not a free-floating concept applied before legal analysis begins. The Court first identifies an interference and then asks whether it can be justified under the Convention. At that stage, the breadth of the margin affects the standard of review. A narrow margin means closer scrutiny. A wider margin means greater judicial restraint. The attached materials correctly note that the doctrine is particularly associated with Articles 8 to 11 because these provisions require balancing between individual rights and public interests.

Examples make the point clearer. Under Article 10, Handyside allowed a relatively broad margin in the field of public morals because moral standards differed across Europe. Under Article 8, cases involving intimate aspects of private life have often produced a narrower margin because the personal interest at stake is weightier and the justification must therefore be stronger. The reform note in the attached material highlights this contrast, referring both to moral cases and to situations where identity or intimate private life narrows the state’s latitude.

The doctrine also appears in other contexts where competing interests must be balanced or interferences justified, including some discrimination cases, electoral cases, and emergency cases. Even so, it is not equally at home across the whole Convention. It has much less explanatory force in relation to absolute rights, such as the prohibition of torture under Article 3, because those rights do not admit the same structured balancing against public interests. The attached sources make this point expressly by contrasting the doctrine’s prominence in Articles 8 to 11 with its far weaker role in relation to Articles 2 to 4.

A final distinction is necessary here. Not every instance of Strasbourg restraint should be described as an application of the margin of appreciation. Sometimes the Court is deferential because facts are uncertain, because evidence is incomplete, or because it accepts a domestic court’s factual findings. The margin of appreciation, by contrast, is specifically linked to the legal and institutional space left to national authorities within the Convention framework. Confusing the doctrine with any form of restraint makes the concept too loose to be useful. A precise account must therefore keep three features together: the doctrine is linked to subsidiarity, it operates most clearly within proportionality review, and it is most characteristic of qualified rights rather than absolute guarantees (González Hauck et al., 2024; Legg, 2012).

2. Historical Development

2.1 Early roots and Handyside

The historical development of the margin of appreciation did not begin fully formed in Handyside v United Kingdom. Before 1976, the Convention organs had already shown a limited willingness to acknowledge that national authorities possessed a certain decisional advantage in matters closely tied to local conditions, especially in emergency and public-order contexts. Early Commission practice, including Greece v United Kingdom (1958), reflected the basic intuition that domestic institutions may be better placed to evaluate immediate political and social realities. The point at that stage, however, was still fragmentary. There was no stable general doctrine with clear vocabulary or systematic reach (Greer, 2000; Arai-Takahashi, 2002).

What Handyside did was to convert that scattered logic into a recognisable doctrinal formula. The case concerned the seizure of The Little Red Schoolbook and the applicant’s conviction under obscenity law. The Court accepted that the protection of morals could not be assessed by reference to a single uniform European standard, because conceptions of morality differed across the contracting states. That was the first major step in defining the doctrine as a response to moral and social diversity within the Convention system (Handyside v United Kingdom, 1976).

The judgment is important not because it is merely the first famous case, but because it supplied the doctrinal language that later case law would repeatedly adopt. The Court stated that national authorities are, in principle, in a better position than an international judge to give an opinion on the exact content of moral requirements and on the necessity of restrictions designed to meet them. At the same time, it made equally clear that Article 10(2) does not give states an unlimited power of appreciation. European supervision remained the controlling framework (Handyside v United Kingdom, 1976; Macdonald, 1998).

That dual formula still drives the doctrine. First, local authorities may enjoy an institutional advantage because of their direct and continuous contact with the “vital forces” of their societies. Second, Strasbourg retains the last word on compatibility with the Convention. The lasting significance of Handyside lies in this balance. It made deference possible without turning the Convention into a set of optional national standards (Greer, 2000; Letsas, 2006).

The judgment also established another enduring feature of the doctrine: its close relationship with proportionality. The Court did not ask whether freedom of expression existed in the abstract. It asked whether the interference was “necessary in a democratic society,” and the margin of appreciation operated within that inquiry. That structural placement would later allow the doctrine to expand well beyond obscenity and morals into many other fields of Convention adjudication (Legg, 2012).

2.2 The move from morals to a general doctrine

After Handyside, the doctrine quickly ceased to be confined to public morals. It developed into a broader technique for calibrating the intensity of Strasbourg review across different rights and policy fields. The key shift was methodological. The margin of appreciation became less a doctrine about morality alone and more a doctrine about institutional judgment, European consensus, and the proper depth of supranational review (Arai-Takahashi, 2002; Legg, 2012).

Sunday Times v United Kingdom (1979) is an early and important illustration of that shift. The case concerned restrictions on publication said to be necessary to maintain the authority of the judiciary. Unlike Handyside, the Court did not accept broad national latitude. It noted that there was substantial common ground among the contracting states on the relevant principles, which narrowed the margin. The case is therefore important because it showed that the breadth of the doctrine was not fixed. It depended on the subject matter and on the extent of shared European standards (Sunday Times v United Kingdom, 1979).

That logic soon extended into private life and personal autonomy. In Dudgeon v United Kingdom (1981), the Court found that criminalisation of consensual homosexual conduct in private violated Article 8. The case is central to the doctrine’s development because it showed how an emerging European consensus could reduce state discretion in matters involving intimate personal life. The Court did not deny that moral issues were involved. It held, rather, that moral disagreement could not justify unlimited latitude where a particularly serious interference with private life was at stake (Dudgeon v United Kingdom, 1981; Letsas, 2006).

The same general technique later appeared in family-life and relationship-recognition cases. In that line of authority, Strasbourg treated the doctrine not as a rule about obscenity or public decency, but as a way of measuring how far domestic authorities may shape legal recognition of personal status, parenthood, or intimate life. The more closely the issue touched identity, autonomy, and human dignity, the stronger the pressure on the Court to justify deference carefully (Legg, 2012; González Hauck et al., 2024).

Religion became another major field of application. Cases involving religious symbols, secularism, education, and the public manifestation of belief placed the Court in disputes where constitutional traditions differed sharply across Europe. In decisions such as Lautsi v Italy (2011), the Court accepted a relatively broad margin in part because there was no settled European approach to the display of religious symbols in classrooms. The doctrine here functioned as a response to constitutional pluralism rather than to moral censorship in the narrow Handyside sense (Lautsi v Italy, 2011; Bates, 2010).

Electoral rights and the democratic process provided another extension. In cases concerning prisoner voting and electoral design, the Court recognised that states enjoy discretion in organising democratic institutions. Even so, it did not treat that discretion as unlimited. The doctrine operated as a means of assessing whether the restriction proportionately pursued legitimate aims. That showed once again that the margin of appreciation had become a general technique of review rather than a special doctrine for morals cases alone (Hirst v United Kingdom (No 2), 2005; Greer, 2000).

The doctrine also moved into social and economic policy. In Hatton v United Kingdom (2003), concerning aircraft noise and environmental nuisance, the Grand Chamber granted a broader margin because the case involved complex policy choices about transport, environment, and economic welfare. The significance of Hatton lies in its demonstration that institutional competence can widen the margin. When courts confront polycentric policy questions with competing public interests, Strasbourg often reviews with greater restraint (Hatton v United Kingdom, 2003; Legg, 2012).

National security and emergency powers followed a similar pattern. In Klass v Germany (1978), the Court accepted that secret surveillance could be necessary in a democratic society, while insisting on safeguards against abuse. In Brannigan and McBride v United Kingdom (1993), and later in A and Others v United Kingdom (2009), the Court acknowledged that national authorities possess particular knowledge in assessing threats to the life of the nation. Yet it also held that emergency measures remain subject to European scrutiny. These cases confirmed that the doctrine applies even in high-risk security settings, but never in a way that extinguishes supervisory review (Klass v Germany, 1978; Brannigan and McBride v United Kingdom, 1993; A and Others v United Kingdom, 2009).

Bioethics and reproductive matters gave the doctrine another layer. In Evans v United Kingdom (2007), the Court accepted a wide margin in a dispute concerning embryos and consent, emphasizing the absence of a common European approach and the ethical sensitivity of the issue. The move is significant because it shows the doctrine’s mature form: Strasbourg asks not only whether the right is important, but also whether consensus exists, how morally contested the field is, and whether domestic law struck a balance through a serious legislative framework (Evans v United Kingdom, 2007).

By this stage, the doctrine had become a general technique of review across the Convention system. It was no longer tied to obscenity or morals in any narrow sense. It had become a flexible method for calibrating review intensity in privacy, religion, elections, family life, social policy, national security, and bioethics. That evolution is one of the most important features of Strasbourg jurisprudence, because it explains why the margin of appreciation now functions as a structural doctrine of the Convention rather than a contextual exception with limited reach (Arai-Takahashi, 2002; Legg, 2012).

2.3 Protocol No. 15 and the post-2021 position

The present treaty setting of the doctrine is shaped by Protocol No. 15 to the Convention, which entered into force on 1 August 2021. Its key importance lies in the amendment to the Preamble. The new recital affirms that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and that, in doing so, they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights (Council of Europe, 2021).

That amendment matters because it gives preambular recognition to two linked institutional ideas: subsidiarity and the margin of appreciation. Before Protocol No. 15, the doctrine was entirely judge-made. After the Protocol, it became textually acknowledged within the Convention framework. Even so, the legal effect of that change must not be overstated. The doctrine was recognised, not transformed into a new treaty rule of state autonomy (Council of Europe, 2013; Bates, 2010).

The Explanatory Report is decisive on this point. It states that the addition to the Preamble must remain consistent with the doctrine as developed in the Court’s case law. That qualification is crucial. It means the Protocol did not redefine the margin, expand it automatically, or weaken the Court’s supervisory role. It accepted the doctrine’s constitutional importance while leaving its scope and operation to be worked out through the existing jurisprudence of Strasbourg (Council of Europe, 2013).

The institutional background to Protocol No. 15 also helps explain its purpose. The amendment emerged from a broader reform process in which member states sought to emphasise the shared responsibility of national authorities and the Court in protecting Convention rights. The Brighton Declaration of 2012 was especially important in this regard. The objective was not to reduce Strasbourg to a secondary actor, but to reinforce the idea that effective rights protection begins domestically and is supervised regionally (Council of Europe, 2012; Spano, 2018).

The post-2021 position, therefore, shows continuity more than rupture. The Court continues to apply the doctrine through the familiar factors already established in the case law: the nature of the right, the seriousness of the interference, the existence of European consensus, the vulnerability of the persons affected, and the quality of domestic reasoning. Protocol No. 15 has strengthened the doctrine’s constitutional visibility, but it has not displaced the central principle that national appreciation remains subject to European supervision (Greer, 2018; Council of Europe, 2021).

That continuity is important for legal analysis. It prevents a mistaken reading of Protocol No. 15 as a decisive shift in favour of national sovereignty. The Protocol did not rewrite the Convention into a decentralised charter of optional rights. It confirmed the doctrine’s place within a supervisory model in which domestic authorities act first, but Strasbourg still decides whether the Convention has been complied with. The legal structure remains the same: primary national responsibility, final supranational supervision.

What changed, then, was not the doctrine’s basic content but its formal status within the architecture of the Convention. The margin of appreciation is now anchored in the Preamble alongside subsidiarity. That gives the doctrine stronger constitutional visibility, but its meaning still depends on the Court’s jurisprudence. The decisive legal development, therefore, is not textual codification alone, but the continued judicial practice that determines when deference is justified and when it must give way to stricter rights review (Legg, 2012; Council of Europe, 2013).

3. Internal Structure of the Doctrine

3.1 Margin and proportionality

The margin of appreciation can only be understood properly if it is placed inside the Court’s ordinary method of rights review. The doctrine does not operate before legal analysis begins. It does its main work once the Court has identified an interference with a Convention right and must decide whether that interference is justified. In practice, this usually means the doctrine operates most clearly at the stages of necessity and proportionality, especially under Articles 8 to 11, where the Court asks whether the measure was “necessary in a democratic society” (Handyside v United Kingdom, 1976; Sunday Times v United Kingdom, 1979).

This point is frequently blurred in weaker writing. The margin of appreciation is often described as no more than a state’s “room for manoeuvre.” That formula is too loose to be analytically useful. It does not show where the doctrine fits in the Court’s reasoning or what legal work it performs. A more accurate description is that the doctrine is a rule about review intensity. It tells Strasbourg how strictly to examine the domestic measure, how much justificatory evidence to demand, and how far to second-guess national judgment in the circumstances of the case (Greer, 2000; Legg, 2012).

Once the doctrine is seen in that way, its relationship with proportionality becomes much clearer. A narrow margin means the Court will look closely at the reasons advanced by the state, test the connection between the measure and the aim pursued with greater rigour, and demand stronger justification for the interference. A wide margin means the Court will still review the measure, but with more restraint. The difference is not between review and no review. It is between stricter and looser forms of supervisory control (Arai-Takahashi, 2002; Letsas, 2006).

Examples illustrate this structure well. In Handyside, the Court accepted that domestic authorities were better placed to assess moral conditions and therefore allowed broader discretion. Even so, the Court still reviewed the national measure under Article 10(2). In the Sunday Times, by contrast, the Court examined the restriction more closely and was less willing to defer, partly because the issue concerned press freedom and because stronger common ground existed across the contracting states. These cases show that the doctrine affects the depth of review inside proportionality, not the existence of review itself (Handyside v United Kingdom, 1976; Sunday Times v United Kingdom, 1979).

This also explains why the doctrine cannot be treated as a free-standing principle detached from the structure of the right in question. Its force depends on the legal test being applied. Where the Convention requires balancing between an individual right and a legitimate public aim, the margin has an obvious place. Where the right is absolute, the doctrine has far less conceptual space to operate. That is why the margin is most visible in qualified-rights litigation and much less central in cases involving absolute prohibitions such as torture under Article 3 (Greer, 2000; Macdonald, 1998).

The doctrine should therefore be read as part of the Court’s method of adjudication. It shapes the standard of review within necessity and proportionality analysis. It is not a parallel doctrine that sits outside those stages. Once this is understood, the margin of appreciation appears less mysterious. It becomes a structured judicial technique for calibrating the level of scrutiny applied to domestic restrictions on Convention rights (Legg, 2012; González Hauck et al., 2024).

3.2 Breadth is not fixed

There is no single margin of appreciation. This is one of the most important points in the doctrine’s internal structure. The Court does not apply one standard margin across all cases. Instead, it works with broad, narrow, and intermediate margins, adjusting the level of deference according to the circumstances of the case. Articles and textbooks that speak of “the margin of appreciation” as though it were one stable rule usually flatten the doctrine into vagueness and miss how Strasbourg actually uses it (Arai-Takahashi, 2002; Legg, 2012).

The Court itself has said this in clear terms. In Schalk and Kopf v Austria, it stated that the scope of the margin will vary according to “the circumstances, the subject matter and its background.” That statement matters because it captures the doctrine’s real internal logic. The margin is not fixed in advance. It is a variable instrument shaped by the nature of the right, the seriousness of the interference, the level of European consensus, the importance of the interest at stake, and the institutional setting in which the restriction was adopted (Schalk and Kopf v Austria, 2010).

A narrow margin is more likely where a particularly important aspect of personal identity or private life is at issue, where vulnerable groups are affected, or where strong common ground exists among the contracting states. Dudgeon v United Kingdom remains a classic example. The Court did not treat moral disagreement as enough to justify a broad latitude where the criminal law intruded deeply into private life. That was not because the doctrine disappeared. It was because the margin narrowed in the face of the right and the context involved (Dudgeon v United Kingdom, 1981; Letsas, 2006).

A broader margin is more likely where there is no clear European consensus, where sensitive ethical or moral questions divide the contracting states, or where national authorities must balance complex social and economic considerations. Hatton v United Kingdom is an obvious example. The Court allowed a relatively wide margin because the case involved environmental regulation, economic policy, and transport planning, all areas in which domestic institutions were considered better placed to weigh multiple competing interests (Hatton v United Kingdom, 2003; Legg, 2012).

This variable structure is one reason the doctrine is often criticized for indeterminacy. There is force in that criticism. If the Court widens or narrows the margin without explaining why, the doctrine can look conclusory rather than analytical. Yet the variable quality of the doctrine is not itself a defect. A regional human rights court supervising many different states cannot plausibly use a single level of scrutiny for obscenity, family recognition, emergency detention, environmental regulation, and religious symbols. The real legal issue is not variability as such. It is whether the Court explains the source of that variability in a principled way (Greer, 2000; Spano, 2014).

For that reason, it is better to describe the doctrine as a sliding scale of deference rather than as a single legal category. Its breadth must always be argued, not assumed. Once the doctrine is framed this way, the reader can see why some cases produce close review, and others produce restraint, even though both are said to involve the margin of appreciation (Arai-Takahashi, 2002; González Hauck et al., 2024).

3.3 Substance and procedure

A strong account of the doctrine must go beyond the substantive outcome and examine the quality of the domestic process. Strasbourg has increasingly looked not only at what national authorities decided, but also at how they reached that decision. This procedural dimension has become one of the most important developments in the doctrine’s internal structure. It shows that deference is often conditional on serious domestic engagement with rights, evidence, and proportionality rather than on blind respect for national choice (Legg, 2012; Spano, 2014).

Three procedural questions have become especially important. First, did the legislature debate the issue carefully and with awareness of Convention standards? Second, did domestic courts examine the restriction in a serious way rather than simply repeating the government’s position? Third, was the decision supported by evidence and a genuine attempt to balance competing interests? Where the answer to these questions is positive, Strasbourg is often more willing to defer. Where the domestic process is shallow or formalistic, the justification for deference weakens considerably (Greer, 2000; Spano, 2014).

Animal Defenders International v United Kingdom is indispensable here. The case concerned a ban on paid political advertising on television and radio. The Grand Chamber upheld the restriction, but the real importance of the case lies in how it reasoned. The Court placed substantial weight on the fact that the issue had been examined extensively by Parliament, had been reviewed by domestic courts, and had been supported by a detailed legislative record. Deference was not granted merely because the subject matter was sensitive. It was granted after close scrutiny of the domestic law-making and adjudicative process (Animal Defenders International v United Kingdom, 2013).

That makes Animal Defenders more than a standard freedom of expression case. It shows that the margin of appreciation now has a strong procedural dimension. Strasbourg may be more prepared to uphold a national restriction when domestic institutions have done the proportionality work themselves in a serious and evidence-based way. This does not mean procedure replaces substance. The Court still examines the substance of the interference. The point is that a well-reasoned domestic process can strengthen the state’s claim to deference (Spano, 2014; Legg, 2012).

This development is sometimes described as a procedural or process-based approach to the margin of appreciation. The label is useful, but it must be handled carefully. The Court does not say that good procedure automatically cures a disproportionate outcome. Nor does it mean that defective procedure automatically proves a violation. The better view is that procedural quality influences the breadth of the margin because it affects the Court’s confidence in the national decision-making process (Greer, 2000; Çalı, Koch and Bruch, 2013).

The procedural dimension also helps explain why the doctrine fits the broader structure of subsidiarity. If national authorities bear the primary responsibility for protecting Convention rights, Strasbourg has reason to ask whether they actually carried out that responsibility in a convincing manner. Serious parliamentary debate, careful judicial reasoning, and genuine engagement with evidence all show that domestic institutions have attempted to perform the Convention task properly. In those circumstances, deference may be more institutionally justified (Spano, 2018; Legg, 2012).

At the same time, this procedural turn has limits. There is a risk that excessive emphasis on domestic process can allow Strasbourg to become overly deferential even where the substance of the interference remains troubling. A careful article should therefore present procedure as a relevant factor, not as a substitute for substantive rights review. The internal structure of the doctrine is strongest when substance and procedure are read together: the Court examines what the state did, why it did it, and how carefully it reasoned its way to that result (Animal Defenders International v United Kingdom, 2013; Spano, 2014).

That combined approach captures the doctrine in its most developed form. The margin of appreciation is not just a question of whether states enjoy latitude. It is also a question of how that latitude is earned, justified, and supervised. Once the procedural dimension is included, the doctrine becomes more intelligible and less rhetorical. It appears not as a slogan of judicial restraint, but as a structured method for deciding when Strasbourg should trust domestic institutions and when it should intervene more firmly.

4. Determinants of the Width of the Margin

4.1 The nature of the right

The first determinant is the nature of the right involved. The margin of appreciation has its greatest force where the Convention itself contemplates balancing between individual freedom and competing public interests. That is why the doctrine is most visible under qualified rights such as Articles 8, 9, 10 and 11. In those provisions, the Court must decide whether an interference was lawful, pursued a legitimate aim, and was necessary in a democratic society. The margin operates mainly inside that last stage of review (Greer, 2000; Legg, 2012).

The doctrine has much less purchase where the right is absolute. Articles such as Article 3 do not permit balancing against public morality, administrative convenience, or general policy preference. The same is broadly true where the interference threatens the core of human dignity or physical integrity. In those settings, the Court may still show caution on factual matters, but the legal space for deference is much narrower because the Convention does not authorize ordinary justificatory balancing (Arai-Takahashi, 2002; Harris, O’Boyle and Warbrick, 2023).

This distinction is the necessary starting point for any serious analysis of breadth. A court cannot speak coherently about a “wide margin” without asking first whether the relevant right is one that admits structured limitation at all. Where the Convention builds balancing into the right, the doctrine has room to operate. Where the Convention protects the right in absolute terms, the doctrine becomes much more constrained (Macdonald, 1998; Legg, 2012).

4.2 Importance of the interest at stake

A second determinant is the importance of the individual's interest affected by the interference. The Court tends to narrow the margin where the case concerns a particularly important aspect of personal identity, autonomy, or private life. The reason is straightforward. The deeper the interference cuts into the individual’s intimate sphere, the stronger the justification Strasbourg expects from the state (Letsas, 2006; Greer, 2000).

Dudgeon v United Kingdom is the classic example. The case is often cited in the field of LGBT rights, but its wider doctrinal significance is more important. The Court treated criminalisation of consensual homosexual conduct in private as a grave intrusion into intimate personal life under Article 8. That helped narrow the margin. Moral disapproval alone could not sustain broad state discretion where the criminal law was used to regulate the private sexual life of adults (Dudgeon v United Kingdom, 1981).

The same logic later appeared in cases on the recognition of same-sex relationships. Once the issue is framed not as abstract social policy but as legal recognition of an individual’s intimate life and personal status, the Court becomes less willing to accept broad national latitude. The more central the affected interest is to personhood and dignity, the harder it becomes for the state to defend a wide margin by relying on tradition alone (Oliari and Others v Italy, 2015; Fedotova and Others v Russia, 2023).

This determinant shows that the doctrine is not driven only by institutional caution. It is also shaped by the weight of the human interest at stake. Where the interference touches the inner domain of private life, identity, sexuality, family bonds, or bodily autonomy, Strasbourg usually moves toward stricter scrutiny (Arai-Takahashi, 2002; Harris, O’Boyle and Warbrick, 2023).

4.3 European consensus

European consensus is one of the Court’s main tools for determining the width of the margin, but it is often misunderstood. It is not a mechanical headcount of how many states have adopted one legal model. Nor is it decisive in every case. It is better understood as comparative evidence used by the Court to assess whether a common European standard is emerging or whether genuine diversity still persists among the contracting states (Dzehtsiarou, 2011; Letsas, 2006).

Where a clear or emerging consensus exists, the Court is more likely to narrow the margin. Dudgeon illustrates that pattern. The Court did not simply note moral disagreement. It observed that there had been a marked evolution in the law of member states and that Northern Ireland was increasingly out of step with broader European developments. Consensus did not decide the case by itself, but it materially reduced the scope for state discretion (Dudgeon v United Kingdom, 1981).

Fedotova and Others v Russia is the modern example. The Grand Chamber treated the broader European movement toward legal recognition of same-sex couples as a reason to narrow the margin on one specific question: whether some legal framework of recognition had to exist. At the same time, the Court still allowed states' discretion regarding the legal form of that recognition. That is an important illustration of how consensus works in practice. It does not always eliminate the margin. It may narrow it on one issue while leaving room for another (Fedotova and Others v Russia, 2023).

Consensus thus functions as a doctrinal tool. It assists the Court in determining whether a state is operating within a realm of acceptable diversity or opposing an emerging common European minimum standard. It is persuasive rather than automatic. The Court may rely on it strongly, weakly, or not at all, depending on the right, the context, and the seriousness of the interference (Dzehtsiarou, 2011; Legg, 2012).

4.4 Institutional competence and polycentric policy

The Court often grants a wider margin where national authorities are making complex social, economic, scientific, or technical judgments. The doctrine here rests partly on institutional competence. Domestic legislatures and administrations may be better placed to gather evidence, weigh competing policy goals, and adjust detailed regulatory frameworks. Strasbourg is especially cautious where no simple binary choice is available and where changing one variable may affect many others (Greer, 2000; Legg, 2012).

Hatton v United Kingdom is the standard example. The case concerned night flights at Heathrow and the resulting noise burden on nearby residents. The Court accepted that the issue involved environmental protection, economic welfare, transport planning, and administrative regulation. Those were not treated as rights-free zones. The point was that they involved multiple policy variables that domestic authorities were institutionally better placed to balance in the first instance (Hatton v United Kingdom, 2003).

This determinant does not mean that social or economic policy is immune from Convention review. Strasbourg still asks whether the balance struck was lawful and proportionate. The wider margin reflects caution, not abdication. The Court remains able to find a violation where the domestic framework is arbitrary, under-reasoned, or imposes a disproportionate burden on individuals (Legg, 2012; Harris, O’Boyle and Warbrick, 2023).

The real lesson of Hatton is narrower than many summaries suggest. It is not that technical policy automatically widens the margin. It is that a wider margin is more likely where the Court confronts a polycentric regulatory question involving evidence, forecasts, trade-offs, and institutional choices that courts are poorly equipped to redesign in detail (Arai-Takahashi, 2002; Greer, 2000).

4.5 Morals, religion, and constitutional tradition

This determinant is one reason the doctrine remains controversial. In cases involving public morals, religious symbols, secularism, and constitutional tradition, the Court often allows a wider margin because there is no single uniform European position. The reasoning is familiar: national authorities may be closer to the historical and cultural conditions that shape the dispute, and comparative law may reveal deep disagreement rather than convergence (Macdonald, 1998; Legg, 2012).

Handyside v United Kingdom remains the starting point. The Court accepted that the protection of morals could not be governed by one fixed European formula. That widened the margin. The significance of the case lies not only in obscenity law, but in the broader judicial instinct it established: where moral judgments differ sharply across Europe, the Court is often reluctant to impose one uniform standard too quickly (Handyside v United Kingdom, 1976).

Lautsi v Italy shows the same instinct in the field of religion and education. The Grand Chamber accepted that the display of crucifixes in Italian public-school classrooms had to be assessed against national history, constitutional identity, and the absence of a settled European rule. The Court therefore allowed a relatively broad margin. The case is important because it demonstrates that the doctrine can widen not only in morality cases, but also where religion and national tradition intersect in constitutionally sensitive ways (Lautsi v Italy, 2011).

S.A.S. v France adds a further layer. There, the Court upheld the French ban on face coverings in public, relying in part on the state’s margin in an area involving social interaction, public space, and constitutional choices about living together. The judgment is highly controversial because it illustrates the danger of wide deference in cases affecting minority practices and personal autonomy. It shows why this determinant sits at the sharp edge of the doctrine: local tradition and cultural disagreement may justify some caution, but they may also shield majoritarian preferences from rigorous scrutiny (S.A.S. v France, 2014; Brems, 2014).

Read together, Handyside, Lautsi, and S.A.S. reveal a consistent judicial pattern. Where deep moral or constitutional disagreement exists, and no clear European standard has formed, the Court is more inclined to widen the margin. That pattern explains the doctrine’s practical logic, but it also explains why the doctrine attracts criticism in fields where vulnerable individuals bear the costs of deference (Letsas, 2006; Brems, 2014).

4.6 Emergency and national security

Emergency and national security cases pose the sharpest test for the doctrine. States argue that they possess superior knowledge of threats, intelligence, and public risk. The Court accepts that claim to an extent. National authorities are often better placed to assess the existence and immediacy of dangers facing the community. For that reason, the margin may widen at the threshold stage, especially under Article 15, where the Court examines whether there is a public emergency threatening the life of the nation (Greer, 2000; O’Boyle, 2016).

Even here, however, the doctrine does not eliminate scrutiny. A and Others v United Kingdom is the essential example. The Court accepted that the United Kingdom faced a public emergency after the attacks of 11 September 2001 and that some deference was justified on that question. But it did not stop there. It went on to examine the substance of the detention regime and found that the measures were discriminatory and disproportionate because they applied only to foreign nationals while comparable risks might arise from nationals as well (A and Others v United Kingdom, 2009).

That judgment is important because it shows both sides of the doctrine in a single case. The Court deferred at one level, but tightened review at another. This is exactly why the margin of appreciation should be seen as variable and issue-specific rather than global. A state may receive latitude in assessing the existence of danger, yet still fail when Strasbourg examines whether the response was necessary, non-discriminatory, and proportionate (O’Boyle, 2016; Harris, O’Boyle and Warbrick, 2023).

Emergency cases, therefore, reveal the doctrine in its most demanding form. They test whether deference can coexist with meaningful rights protection under severe political pressure. The answer in the Strasbourg case law is yes, but only if judicial supervision remains real. Once the Court stops probing the fit between threat and response, the doctrine risks becoming a shield for executive excess. A and Others remains the clearest demonstration that, even in emergencies, the margin of appreciation is bounded by the Convention’s requirement of effective supervision.

5. Rights-Based Applications

5.1 Article 8: private life, family life, and identity

Article 8 is the main laboratory of the margin of appreciation. No other Convention provision shows so clearly how the doctrine works in practice. Article 8 covers private life, family life, sexuality, personal identity, bodily autonomy, reproductive choices, assisted reproduction, surveillance, and legal recognition of intimate relationships. Because the protected interests are so varied, the Court does not apply one stable level of deference. It narrows the margin in some Article 8 cases and widens it in others, depending on the nature of the interest at stake, the seriousness of the interference, the level of European consensus, and the ethical sensitivity of the field (Arai-Takahashi, 2002; Harris, O’Boyle and Warbrick, 2023).

The margin tends to narrow where the case concerns intimate aspects of personal identity and private life. Dudgeon v United Kingdom remains the classic example. The Court treated the criminalisation of consensual homosexual conduct in private as a grave interference with private life. The judgment is important not only because it concerns sexual orientation, but because it established a broader principle: where the state intrudes deeply into an individual’s intimate sphere, moral disapproval alone is not enough to justify wide national latitude (Dudgeon v United Kingdom, 1981).

The same logic reappears in same-sex relationship recognition cases. In Oliari and Others v Italy, the Court held that Italy’s failure to provide any legal framework for same-sex couples violated Article 8. The Court did not deny that states enjoy some discretion in regulating family-law institutions. It held, however, that the complete absence of legal recognition had become increasingly difficult to defend in light of the importance of the interest involved and the broader legal evolution across Europe (Oliari and Others v Italy, 2015). The margin narrowed because the case concerned the legal protection of a stable and intimate personal relationship.

Fedotova and Others v Russia confirms that line of reasoning at the Grand Chamber level. The Court accepted that states still retain some discretion as to the legal form recognition may take. Even so, it held that Article 8 requires some legal framework through which same-sex couples may secure recognition and protection. The judgment is a strong illustration of how the doctrine works in a differentiated way. The margin narrowed on the question of whether recognition had to exist, but not entirely on the question of institutional design (Fedotova and Others v Russia, 2023).

Article 8 also contains cases where the margin widens. This is especially clear in morally sensitive bioethical disputes, where the Court encounters deep ethical disagreement and a weaker European consensus. In Evans v United Kingdom, the dispute concerned the use of stored embryos after the withdrawal of consent by one genetic parent. The Grand Chamber accepted a wide margin because the case involved sensitive moral choices and there was no uniform European approach. The Court did not deny the seriousness of the applicant’s personal interest. It concluded that the domestic framework fell within the state’s discretion in an area marked by ethical complexity (Evans v United Kingdom, 2007).

A similar pattern appears in Parrillo v Italy. The case concerned the donation of embryos to scientific research. Again, the Court accepted a broad margin because the issue sat within a morally delicate and scientifically evolving field in which no consolidated European standard had emerged. The judgment shows that Article 8 does not automatically produce close review. Even where personal autonomy is involved, the margin may widen if the case concerns contested bioethical questions and comparative consensus remains weak (Parrillo v Italy, 2015).

These cases show why Article 8 is so important to the doctrine. It contains both the narrow-margin cases and the wide-margin cases in especially clear form. The structure is not random. Where the state interferes directly with intimate identity, sexuality, or relationship recognition, Strasbourg often scrutinises more closely. Where the case concerns assisted reproduction, embryos, or ethically divisive biomedical questions, the Court is more likely to defer. Article 8, therefore, reveals the margin of appreciation in its most developed and nuanced form (Legg, 2012; Harris, O’Boyle and Warbrick, 2023).

5.2 Article 9: religion, symbols, and pluralism

The doctrine is especially visible under Article 9 because disputes about religion are often bound up with constitutional identity, secularism, education, and the historical role of religion in public life. Religious-freedom cases rarely concern belief alone. They often concern how belief is expressed in institutions such as schools, courts, public administration, and the workplace. That context makes Article 9 one of the clearest areas in which the Court uses the margin of appreciation to manage pluralism within Europe (Evans, 2001; Howard, 2017).

Lautsi v Italy is the leading example. The Grand Chamber accepted broad deference in relation to the display of crucifixes in Italian public-school classrooms. It treated the matter as closely linked to national tradition and educational policy, and it emphasized the absence of a single European approach. The case is important because it demonstrates how the Court may widen the margin where religion intersects with constitutional culture and public education (Lautsi v Italy, 2011).

At the same time, Lautsi should not be read as proof that religion always attracts a broad margin. The breadth of the doctrine under Article 9 depends heavily on context. The Court’s case law shows considerable variation between disputes about classroom symbols, workplace manifestation, religious dress, conscientious objection, and state neutrality. The doctrine under Article 9 is therefore not broad by nature. It becomes broader or narrower depending on the institutional setting, the presence or absence of coercion, and the level of European disagreement (Howard, 2017; Harris, O’Boyle and Warbrick, 2023).

That contextual variation also appears in the Court’s more recent materials and guides on freedom of religion. They continue to emphasise that Article 9 cases cannot be reduced to a single pattern. Some disputes involve the protection of personal manifestation against disproportionate state control. Others involve the organisation of public space and the relationship between religion and state institutions. The margin of appreciation remains important in both types of case, but it does not operate identically in each of them (Council of Europe, 2024).

5.3 Article 10: expression and democracy

Article 10 case law shows particularly clearly that the doctrine does not move in one direction. Freedom of expression cases fall into at least three distinct groups. The first concerns morals and obscenity. The second concerns press freedom and public-interest speech. The third concerns the regulation of the political process. Each group produces a different relationship between expression and deference (Barendt, 2005; Harris, O’Boyle and Warbrick, 2023).

In the first group, Handyside v United Kingdom remains the classic authority. The Court accepted a wider margin because the protection of morals varied across Europe and because national authorities were said to be better placed to assess local conditions. This is the best-known version of the doctrine, but it should not be treated as representative of all Article 10 cases. It is one context-specific model, rooted in a combination of moral diversity and judicial caution (Handyside v United Kingdom, 1976).

The second group moves in the opposite direction. Where the case concerns press freedom, public-interest reporting, or criticism of public authorities, Strasbourg often scrutinises more closely. Sunday Times v United Kingdom is the key early example. The Court was less willing to defer because the issue concerned a core democratic function of the press and because stronger common ground existed across the contracting states on the principles at stake. The result was a narrower margin and a more demanding proportionality review (Sunday Times v United Kingdom, 1979).

The third group concerns the regulation of the political process. Here, the Court may still defer, but it often does so only where domestic safeguards are robust. Animal Defenders International v United Kingdom is the indispensable example. The Grand Chamber upheld restrictions on paid political advertising, but it attached major significance to the depth of domestic legislative debate, the evidence before Parliament, and the seriousness of domestic judicial review. This was not deference based simply on subject matter. It was deference reinforced by procedural quality (Animal Defenders International v United Kingdom, 2013).

Article 10, therefore, disproves any attempt to speak of one uniform margin in expression cases. Morals and obscenity may widen the margin. Public-interest speech often narrows it. Political-process regulation may produce a wider margin if the domestic framework is carefully reasoned and institutionally robust. The doctrine under Article 10 is therefore structured by context, democratic function, and the quality of justification rather than by the bare fact that expression is involved (Barendt, 2005; Legg, 2012).

5.4 Article 14: discrimination and vulnerable groups

A serious account of the doctrine cannot leave equality at the margins. Article 14 and the broader anti-discrimination case law are essential because they show that the margin of appreciation is constrained where the state relies on suspect distinctions involving race, ethnicity, sex, sexual orientation, or other highly sensitive grounds. In that field, vulnerability and equality review often narrow state discretion substantially (Arnardóttir, 2003; Gerards, 2019).

The clearest example is D.H. and Others v Czech Republic. The case concerned the disproportionate placement of Roma children in special schools for pupils with intellectual disabilities. The Grand Chamber did not allow the margin of appreciation to justify ethnic segregation in education. The Court recognised the structural disadvantage suffered by Roma communities and treated the discriminatory impact of the system as incompatible with Article 14 read with Article 2 of Protocol No. 1 (D.H. and Others v Czech Republic, 2007).

The significance of D.H. goes beyond education. It shows that once discrimination against a vulnerable or historically marginalised group is established, the Court becomes much less willing to defer to broad state claims about administrative convenience, national tradition, or general policy. The doctrine is not eliminated, but it is sharply constrained. Equality review imposes a discipline on deference (Arnardóttir, 2003; Harris, O’Boyle and Warbrick, 2023).

The same structural logic appears in other areas of discrimination law. When distinctions are drawn on grounds such as race, ethnicity, sex, or sexual orientation, Strasbourg generally requires very weighty reasons. This raises the justificatory burden on the state and often narrows the margin. In practical terms, that means the doctrine carries less force where the legal classification itself signals a heightened risk of exclusion or stigma (Gerards, 2019; Council of Europe, 2024).

Article 14 is therefore important not only as an equality provision, but as a corrective within the doctrine itself. It helps prevent the margin of appreciation from becoming a vehicle through which majorities can entrench structural disadvantage. Once vulnerability, stigma, or suspect classification enters the analysis, the Court is more likely to shift toward stricter scrutiny.

5.5 Protocol No. 1 rights

The doctrine also matters outside Articles 8 to 11. The rights in Protocol No. 1 show that the margin of appreciation is not confined to privacy, religion, and expression. It also plays an important role in property, education, and electoral rights. In these areas, the Court often recognises that states enjoy latitude in institutional design, but it still insists that broad discretion must be exercised within Convention limits (Harris, O’Boyle and Warbrick, 2023).

Hirst v United Kingdom (No. 2) is the key example for electoral rights. The Court accepted that states enjoy a broad margin in organising electoral systems and determining conditions on the right to vote. At the same time, it held that the blanket disenfranchisement of convicted prisoners crossed the line. The restriction was too general, too automatic, and too weakly justified. The case is a strong illustration of how deference can coexist with a finding of violation (Hirst v United Kingdom (No. 2), 2005).

The importance of Hirst lies in its structure. The Court did not deny that electoral law is an area of national choice. Nor did it substitute its own preferred voting model for that of the United Kingdom. What it rejected was the absence of a serious, proportionate, and individualized justification for a blanket exclusion. The doctrine functioned in a familiar manner: there was a margin, but it was not without limits. (Mowbray, 2012; Legg, 2012).

This illustrates a broader point about Protocol No. 1 rights. In areas such as elections and education, Strasbourg often begins from a position of respect for national institutional diversity. Even so, that respect weakens where the measure is automatic, indiscriminate, or unsupported by serious legislative reasoning. The doctrine continues to regulate review intensity, but it does not insulate domestic arrangements from scrutiny.

Protocol No. 1 rights, therefore, confirm the wider architecture of the margin of appreciation. The doctrine is not confined to the classic qualified rights. It appears that wherever the Court must supervise the balance between national institutional choice and a common European standard. Hirst shows that even where the Court starts from a broad margin, a violation may still follow if the state has failed to justify a sweeping restriction in Convention terms.

6. Margin of Appreciation and the Living Instrument

6.1 Why these doctrines must be read together

The margin of appreciation and the living-instrument method are often presented as if they pull in opposite directions. That is inaccurate. In Strasbourg jurisprudence, they work as paired techniques. The living-instrument method allows the Convention to develop in light of present-day conditions. The margin of appreciation regulates how quickly and how uniformly that development should occur across the contracting states (Tyrer v United Kingdom, 1978; Letsas, 2007).

The living-instrument method is the Court’s answer to a simple problem: a treaty drafted in 1950 cannot be applied rigidly if it is to remain effective in changing social, technological, and moral conditions. In Tyrer v United Kingdom, the Court stated that the Convention is a living instrument which must be interpreted in the light of present-day conditions. That formula has become one of the Court’s most important interpretive principles. It explains why the Convention can respond to issues that were not fully visible, or not fully accepted, at the time of drafting (Tyrer v United Kingdom, 1978; Bates, 2010).

The margin of appreciation enters at precisely that point. Once the Court accepts that Convention meaning may develop, it still has to decide how far that development should be imposed across a legally and politically diverse Europe. The doctrine of margin allows the Court to avoid a crude choice between two extremes. It does not have to freeze the Convention in its original historical moment, and it does not have to impose identical solutions immediately on all states. Instead, it can recognize development in principle while allowing some variation in timing, form, and institutional response (Greer, 2000; Legg, 2012).

This is why consensus matters so much. European consensus mediates between legal evolution and national diversity. Where a strong common trend exists, the living-instrument method pushes the Convention toward a more developed understanding of the right, and the margin of appreciation tends to narrow. Where consensus is weak or absent, the Court is often more cautious, and the margin tends to widen. Consensus, therefore, does not replace either doctrine. It connects them (Dzehtsiarou, 2011; Letsas, 2006).

This relationship can be seen across several fields of case law. In matters of personal identity, sexuality, family life, and legal recognition, the Court has often relied on present-day developments in Europe to interpret Convention rights in a more demanding way. At the same time, it has used the margin of appreciation to determine how much discretion states still retain in implementing those developments. The two doctrines, therefore, perform different functions within a single interpretive structure: one permits development, the other calibrates deference (Arai-Takahashi, 2002; Harris, O’Boyle and Warbrick, 2023).

It follows that the Court does not simply choose between change and restraint. It combines them. A living Convention without any margin of appreciation would risk collapsing national diversity too quickly. A broad margin without living-instrument interpretation would risk leaving the Convention trapped in outdated assumptions. The balance between the two is one of the defining features of Strasbourg’s interpretive practice (Letsas, 2007; Spano, 2018).

6.2 The real doctrinal tension

The real doctrinal tension appears when the Court must decide whether Europe has moved far enough in one direction that states with more restrictive rules should lose part of their discretion. This is not an abstract theoretical problem. It arises in concrete disputes where one or more states remain attached to older legal positions while the broader European pattern has shifted. At that point, the Court must decide whether diversity still deserves deference or whether the emerging common standard has become strong enough to narrow the margin (Dzehtsiarou, 2011; Legg, 2012).

Dudgeon v United Kingdom is a classic example. The case did not involve a sudden discovery of a new right. It involved the Court’s recognition that the criminalisation of consensual homosexual conduct in private had become increasingly out of line with European legal developments. The living-instrument method allowed the Court to read Article 8 in light of contemporary conditions. The margin of appreciation then had to give way, at least in part, because the United Kingdom’s position in Northern Ireland was becoming harder to defend as an acceptable national variation (Dudgeon v United Kingdom, 1981; Letsas, 2006).

The important point is that Dudgeon did not eliminate the doctrine. The Court did not say that states never enjoy discretion in morally contested areas. It said, in effect, that the combination of intimate private life, the severity of criminal intrusion, and the broader European legal trend narrowed the scope for national divergence. That is the tension in its clearest form. The more the Convention is interpreted dynamically in light of present conditions, the less room there may be for outlier states to rely on tradition alone (Greer, 2000; Harris, O’Boyle and Warbrick, 2023).

Fedotova and Others v Russia shows the same tension in a modern setting. The Grand Chamber accepted that states still retain discretion regarding the legal form of recognition for same-sex couples. Yet it held that they no longer enjoy a margin wide enough to deny all legal recognition. The reason was not simply moral preference on the part of the Court. It was the combination of Article 8 interests, developments across Europe, and the Court’s view that the Convention had to be interpreted in line with present-day realities. A strong European trend had formed, and that reduced the tolerance for national outliers (Fedotova and Others v Russia, 2023).

These cases show that the doctrinal tension is about thresholds. The Court must decide when legal evolution has become sufficiently mature that deference should contract. That is not a mechanical exercise. It requires judgment about the weight of comparative practice, the centrality of the interest affected, and the seriousness of the interference. It also explains why the doctrine often attracts criticism. Those who favour stronger uniform rights protection may think the Court waits too long before narrowing the margin. Those who favour national discretion may think the Court moves too quickly once a trend emerges (Dzehtsiarou, 2011; Spano, 2018).

The tension is therefore built into the structure of the Convention system. The living-instrument method pushes toward present-day rights protection. The margin of appreciation preserves a space for pluralism and institutional caution. The point of difficulty is the moment at which one begins to outweigh the other. Dudgeon and Fedotova are important because they show the Court crossing that line: once a strong common trend forms, and once the interference touches a central aspect of private life or identity, Strasbourg becomes less willing to tolerate states that remain outside the broader European movement.

This dynamic helps explain why the doctrine remains both durable and contested. It is durable because the Court needs a way to combine evolutionary interpretation with regional diversity. It is contested because that combination depends on evaluative judgment rather than fixed formulae. The legal task is not to deny the tension, but to show clearly how the Court manages it in practice.

7. Critique

7.1 Indeterminacy

The standard criticism is that the margin of appreciation is too indeterminate. The Court may describe the margin as broad in one case and narrow in another, yet it does not always provide a fully transparent metric for that choice. This criticism is serious and cannot be brushed aside. A doctrine that affects the depth of judicial review must be explained with care. If the Court widens or narrows the margin without showing why, the doctrine risks becoming conclusory rather than analytical (Greer, 2000; Letsas, 2006).

Part of the problem lies in the doctrine’s structure. The Court relies on several recurring factors: the nature of the right, the importance of the interest at stake, the existence of European consensus, the quality of domestic reasoning, and the institutional setting. Those factors are real, but they do not operate like a mathematical test. Different factors may point in different directions, and the Court does not always explain their relative weight with sufficient precision (Arai-Takahashi, 2002; Legg, 2012).

This makes the doctrine vulnerable to the charge of elasticity. A flexible doctrine can be useful in a diverse regional system, but flexibility can also become a weakness if it masks unarticulated value judgments. The doctrine is therefore only as persuasive as the reasons the Court gives for fixing the breadth of the margin in the case before it. Where the reasoning is clear, the doctrine can look disciplined. Where the reasoning is thin, the doctrine can look like a label attached after the result has already been chosen (Letsas, 2006; Spano, 2014).

That criticism is strongest when the Court invokes the doctrine at a high level of abstraction. Phrases such as “better placed” or “no uniform European conception” can be helpful, but they are not enough on their own. A convincing judgment must explain why local authorities are better placed in this dispute, why disagreement across Europe matters here, and why the right at issue should tolerate a wider or narrower sphere of national choice (Greer, 2000; Harris, O’Boyle and Warbrick, 2023).

Even so, indeterminacy should not be overstated. Many constitutional standards are open-textured, including proportionality, necessity, and reasonableness. The problem is not that the doctrine requires judgment. The problem is that the exercise of judgment is sometimes under-explained. The proper response is not to pretend the doctrine can be reduced to a fixed formula. It is to demand more explicit reasoning about the determinants of breadth in each class of cases (Arai-Takahashi, 2002; Legg, 2012).

7.2 Risk of over-deference

A second criticism is that the doctrine sometimes produces excessive deference. The concern is not simply that Strasbourg respects national diversity. The concern is that the Court may use the margin of appreciation to avoid difficult moral or political questions by sending them back to national authorities. When that happens, the doctrine can operate less as a method of supervision and more as a technique of judicial retreat (Letsas, 2006; Benvenisti, 1999).

This criticism is especially strong in cases of religion and public morals. In such fields, the Court often faces sharp disagreement among the contracting states and may be reluctant to impose a common standard. That caution can be institutionally understandable. It can also allow majoritarian preferences to prevail where individual rights or minority practices are under pressure. Criticism of S.A.S. v France illustrates this point clearly. Many commentators argue that the Court deferred too readily to the state’s understanding of social cohesion and public space, despite the serious consequences for the individual applicants affected (Brems, 2014; Letsas, 2006).

The same concern appears in immigration and national-security cases. Governments claim special expertise, access to intelligence, and democratic responsibility for collective safety. The Court sometimes accepts a broader margin on that basis. Yet these are also fields where rights can be most vulnerable to fear, prejudice, and executive overreach. The danger is that deference may become strongest precisely where scrutiny is most needed (O’Boyle, 2016; Greer, 2000).

Emergency cases show the risk in especially sharp form. Article 15 allows derogation in times of public emergency, and the Court accepts that domestic authorities are often better placed to judge the existence of danger. Even so, the lesson of A and Others v United Kingdom is that deference cannot stop at the threshold question. Once the Court moves to the design and effect of the measures adopted, it must still examine discrimination, disproportionality, and overbreadth with real seriousness (A and Others v United Kingdom, 2009; O’Boyle, 2016).

Over-deference is also problematic because it may redistribute the burden of Convention pluralism onto vulnerable individuals. If the Court permits broad national discretion in morally charged cases, the practical costs are often borne by minorities, migrants, prisoners, religious dissenters, or stigmatised groups. That does not mean every wide margin is unjustified. It means the Court must be especially careful where deference aligns with existing patterns of exclusion or hierarchy (Arnardóttir, 2003; Gerards, 2019).

The strongest version of this critique is therefore not that the doctrine is always wrong. It is that the doctrine can become too convenient. It gives the Court a language for restraint, and that language can be used too easily in areas where the political stakes are high and the institutional incentives to defer are strong. The legal challenge is to prevent the doctrine from becoming a substitute for substantive judgment (Benvenisti, 1999; Letsas, 2006).

7.3 Why the doctrine still survives

Despite these criticisms, the doctrine survives because it serves an institutional function the Court cannot easily abandon. The European Court of Human Rights supervises a regional system composed of many states with different legal traditions, democratic structures, religious histories, and social settlements. It cannot plausibly constitutionalise every contested issue at the same speed or in the same form across all of them. The margin of appreciation gives the Court a way to preserve common standards without pretending that Europe is politically uniform (Greer, 2000; Legg, 2012).

That institutional argument is stronger after Protocol No. 15, not weaker. By inserting subsidiarity and the margin of appreciation into the Convention’s Preamble, the Protocol did not weaken Strasbourg’s role. It acknowledged more openly the dual structure that had already shaped the Convention system for decades: domestic authorities act first, but they do so under supranational supervision. The doctrine now sits more visibly within the constitutional architecture of the Convention, even though its practical content still depends on case law (Council of Europe, 2013; Council of Europe, 2021).

The doctrine also survives because the alternative is not straightforward. A system with no margin of appreciation would require the Court either to impose rigid uniformity across every contested issue or to disguise deference under some other label. Neither option is attractive. Complete uniformity would ignore real differences in social and constitutional context. A hidden deference would be less transparent than the current doctrine. The margin at least provides a vocabulary through which Strasbourg can state openly that variation is being tolerated and why (Arai-Takahashi, 2002; Spano, 2018).

Its survival is also linked to subsidiarity in a practical sense. The Court depends on domestic institutions to protect Convention rights effectively. If national courts, legislatures, and administrations are to take Convention obligations seriously, the system must recognise that they have a primary role, not merely a subordinate one. The doctrine helps organise that relationship. It allows Strasbourg to encourage strong domestic rights reasoning while still reserving final control over Convention compliance (Spano, 2014; Legg, 2012).

This does not mean the doctrine is beyond criticism. It means the doctrine answers a structural need. A supranational human rights court operating within a plural legal order requires a way to calibrate the intensity of review. The real question is not whether the doctrine should disappear. It is whether the Court can apply it with enough discipline, clarity, and self-awareness to ensure that deference strengthens the Convention system rather than weakening it.

In that respect, the doctrine survives not because it is theoretically elegant, but because it is institutionally useful. It enables the Court to combine common rights protection with differentiated application. That combination is difficult, unstable, and frequently contested. It is also unavoidable within the framework of the Convention.

Also Read

• The Principle of Proportionality in International Law

• The Right to Protest in International Law

• The Principle of Non-Refoulement

• Ireland v. United Kingdom Case

• Gender Equality and International Human Rights Law

• What Are Human Rights?

• Council of Europe Convention on Artificial Intelligence

• The Universal Declaration Of Human Rights

8. Current Direction of the Case Law

8.1 Post-Protocol 15 continuity, not rupture

Recent case law does not show a radically new doctrine of margin of appreciation. What it shows is a clearer judicial vocabulary of subsidiarity, shared responsibility, and domestic engagement with Convention rights. The basic architecture remains the same. National authorities have the primary responsibility to secure Convention rights, but their decisions remain subject to Strasbourg supervision (Council of Europe, 2021; Spano, 2018).

This point matters because Protocol No. 15 is sometimes overstated. The amendment to the Preamble did not transfer final authority to the states. It recognised, at treaty level, two ideas that were already central to the Court’s jurisprudence: subsidiarity and the margin of appreciation. The Court has continued to apply the doctrine in the same basic way, as a context-sensitive standard of review rather than a rule of national autonomy (Council of Europe, 2013; Greer, 2018).

The recent jurisprudence, therefore, reflects continuity, not rupture. Strasbourg still asks the same core questions. What right is at stake? How serious is the interference? Is there a European consensus? How carefully did the domestic authorities reason? Those factors still determine the width of the margin. The Court’s language may now be more explicit about domestic responsibility, but the supervisory structure remains intact (Legg, 2012; Harris, O’Boyle and Warbrick, 2023).

The post-Protocol 15 position is best understood as a more visible constitutional framing of an older method. Deference remains variable. It is never automatic. It always operates within a system in which Strasbourg decides, in the end, whether the Convention has been complied with. The doctrine has therefore become more openly institutional, but not fundamentally different in substance (Council of Europe, 2021; González Hauck et al., 2024).

8.2 New fields, same method

What has changed more clearly is the range of fields in which the doctrine now operates. Older discussions of the margin of appreciation focused mainly on obscenity, public morals, religion, privacy, family life, and emergency powers. More recent case law shows the same method being used in newer areas, especially environmental and climate litigation. That development is important because it confirms the adaptability of the doctrine without altering its basic legal logic (Keller, 2024; Harris, O’Boyle and Warbrick, 2023).

The clearest example is Verein KlimaSeniorinnen Schweiz v Switzerland (2024). The Grand Chamber did not abandon the doctrine in the climate context. It refined it. The Court distinguished between, on the one hand, the setting of climate aims and objectives and, on the other hand, the choice of means for achieving them. On the first issue, the Court treated state discretion as more constrained. On the second, it allowed a wider margin. That distinction is highly significant because it shows the doctrine operating with internal differentiation in a modern regulatory field (Verein KlimaSeniorinnen Schweiz v Switzerland, 2024).

The judgment is important for a second reason. It confirms that the doctrine is not limited to the classic moral or cultural disputes that dominated earlier literature. Climate change raises scientific evidence, long-term risk, legislative design, regulatory complexity, and intergenerational harm. Even in that setting, the Court used the familiar structure of the doctrine: it distinguished between questions that required closer supervision and questions on which states retained broader discretion (Keller, 2024; Council of Europe, 2024).

This means the current direction of the case law is not a move away from the doctrine, but an extension of its method into new subject areas. The Court continues to work with the same basic elements: subsidiarity, supervision, proportionality, and variable review intensity. What is new is the field of application, not the underlying judicial technique.

The climate cases, therefore, reinforce the article’s broader argument. The margin of appreciation remains a doctrine of calibrated supervision. It is capable of operating in new legal terrains without losing its core function. Strasbourg does not treat new subject matter as a reason to discard the doctrine. It adapts the doctrine to that subject matter while preserving the same basic logic of shared responsibility and final review.

Conclusion

The margin of appreciation is one of the most important and contested doctrines in European human rights law because it defines how the Convention system manages diversity without surrendering common standards. This article has argued that the doctrine is not valuable because it protects sovereignty for its own sake. Nor is its value found in reducing political friction between Strasbourg and national governments. Its real importance lies elsewhere: it allows differentiated application of Convention rights within a plural regional order while preserving a minimum European standard through judicial supervision.

That institutional role explains both the doctrine’s durability and its limits. A regional court overseeing many constitutional traditions cannot treat every contested issue as if it admitted a single immediate answer. At the same time, a human rights court cannot allow diversity to become a cover for weak protection, majoritarian pressure, or arbitrary restriction. The doctrine exists because both of those propositions are true at once. It is a technique for calibrating scrutiny, not a licence for national immunity.

The case law shows that the doctrine is strongest when it is used with precision. It has real value when the Court identifies the nature of the right, the seriousness of the interference, the importance of the interest at stake, the existence or absence of European consensus, the quality of domestic reasoning, and the institutional context in which the restriction was adopted. It becomes much less convincing when it is invoked in vague terms as mere “room for manoeuvre” or as a shorthand for restraint without analysis.

The doctrine is also best understood as part of a larger interpretive structure. It works alongside subsidiarity, proportionality, and the living-instrument method. Subsidiarity explains why domestic authorities act first. Proportionality explains how restrictions are tested. The living-instrument method explains why the Convention develops. The margin of appreciation connects these elements by adjusting the intensity of review in a system that must combine common rights with national variation.

Its weaknesses remain serious. The doctrine can appear indeterminate. It can produce over-deference in morally or politically sensitive fields. It can shift the burdens of pluralism onto vulnerable individuals and minority groups. Those criticisms should not be dismissed, because they identify real risks within the Court’s jurisprudence. Yet those risks do not show that the doctrine is dispensable. They show that it must be reasoned and controlled.

The current direction of the case law confirms continuity rather than rupture. Even after Protocol No. 15, the doctrine remains a context-sensitive method of supervision, not a rewritten principle of state autonomy. New fields such as climate litigation show that the doctrine is adaptable, but they also confirm that its internal logic has not changed. Strasbourg still distinguishes between questions that demand closer review and questions on which national authorities retain broader discretion.

The final point is the most important. The margin of appreciation strengthens the Convention system only when the Court explains, with discipline, why deference is justified in one class of cases and not in another.

References

Books, chapters and journal articles

1. Arai-Takahashi, Y. (2002) The margin of appreciation doctrine and the principle of proportionality in the jurisprudence of the ECHR. Antwerp: Intersentia.

2. Arnardóttir, O.M. (2003) Equality and non-discrimination under the European Convention on Human Rights. The Hague: Martinus Nijhoff Publishers.

3. Barendt, E. (2005) Freedom of speech. Oxford: Oxford University Press.

4. Bates, E. (2010) The evolution of the European Convention on Human Rights: from its inception to the creation of a permanent court of human rights. Oxford: Oxford University Press.

5. Benvenisti, E. (1999) 'Margin of appreciation, consensus, and universal standards', New York University Journal of International Law and Politics, 31(4), pp. 843–854.

6. Brems, E. (2014) 'Face veil bans in the European Court of Human Rights: the importance of empirical findings', Journal of Law and Policy, 22(2), pp. 517–549.

7. Çalı, B., Koch, A. and Bruch, N. (2013) 'The legitimacy of human rights courts: a grounded interpretivist analysis of the European Court of Human Rights', Human Rights Quarterly, 35(4), pp. 955–984.

8. Dzehtsiarou, K. (2011) 'European consensus and the evolutive interpretation of the European Convention on Human Rights', German Law Journal, 12(10), pp. 1730–1745.

9. Evans, C. (2001) Freedom of religion under the European Convention on Human Rights. Oxford: Oxford University Press.

10. Gerards, J. (2019) General principles of the European Convention on Human Rights. Cambridge: Cambridge University Press.

11. González Hauck, S., Kunz, R. and Milas, M. (eds.) (2024) Public international law: a multi-perspective approach. Abingdon: Routledge.

12. Greer, S.C. (2000) The margin of appreciation: interpretation and discretion under the European Convention on Human Rights. Strasbourg: Council of Europe Publishing.

13. Greer, S., Gerards, J. and Slowe, R. (2018) Human rights in the Council of Europe and the European Union: achievements, trends and challenges. Cambridge: Cambridge University Press.

14. Harris, D., O’Boyle, M., Bates, E. and Buckley, C.M. (2023) Law of the European Convention on Human Rights. 5th edn. Oxford: Oxford University Press.

15. Howard, E. (2017) Freedom of expression and religious hate speech in Europe. Abingdon: Routledge.

16. Keller, H. and Ganesan, P. (2024) 'The use of scientific experts in environmental cases before the European Court of Human Rights', International and Comparative Law Quarterly, 73(4), pp. 997–1021.

17. Legg, A. (2012) The margin of appreciation in international human rights law: deference and proportionality. Oxford: Oxford University Press.

18. Letsas, G. (2006) 'Two concepts of the margin of appreciation', Oxford Journal of Legal Studies, 26(4), pp. 705–732.

19. Letsas, G. (2007) A theory of interpretation of the European Convention on Human Rights. Oxford: Oxford University Press.

20. Macdonald, R.St.J. (1993) 'The margin of appreciation', in Macdonald, R.St.J., Matscher, F. and Petzold, H. (eds.) The European system for the protection of human rights. Dordrecht: Martinus Nijhoff, pp. 83–124.

21. Mowbray, A. (2012) Cases, materials, and commentary on the European Convention on Human Rights. 3rd edn. Oxford: Oxford University Press.

22. O’Boyle, M. (2016) 'Emergency government and derogation under the ECHR', European Human Rights Law Review, 4, pp. 331–341.

23. Spano, R. (2014) 'Universality or diversity of human rights? Strasbourg in the age of subsidiarity', Human Rights Law Review, 14(3), pp. 487–502.

24. Spano, R. (2018) 'The future of the European Court of Human Rights—subsidiarity, process-based review and the rule of law', Human Rights Law Review, 18(3), pp. 473–494.

25. Official and online materials

26. Council of Europe. (2012) Brighton Declaration [online]. Available at: https://www.echr.coe.int/documents/d/echr/2012_brighton_finaldeclaration_eng (Accessed: 31 March 2026).

27. Council of Europe. (2013) Explanatory Report to Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms [online]. Available at: https://www.echr.coe.int/d/protocol_15_explanatory_report_eng (Accessed: 31 March 2026).

28. European Court of Human Rights. (2021) Protocol No. 15 to the European Convention on Human Rights enters into force [online]. Available at: https://hudoc.echr.coe.int/app/conversion/pdf/?filename=Protocol+No.+15+to+the+European+Convention+on+Human+Rights+enters+into+force.pdf&id=003-7088764-9588986&library=ECHR (Accessed: 27 March 2026).

29. European Court of Human Rights. (2024) Overview of the Court’s case-law 2024 [online]. Available at: https://ks.echr.coe.int/documents/d/echr-ks/overview_2024_eng (Accessed: 27 March 2026).

30. Frantziou, E. (2014) The margin of appreciation doctrine in European human rights law [online]. Available at: https://www.ucl.ac.uk/public-policy/sites/public_policy/files/migrated-files/European_human_rights_law.pdf (Accessed: 29 March 2026).

Cases

A. and Others v United Kingdom [GC], no. 3455/05, 19 February 2009.

Animal Defenders International v United Kingdom [GC], no. 48876/08, 22 April 2013.

Brannigan and McBride v United Kingdom, nos. 14553/89 and 14554/89, 25 May 1993.

D.H. and Others v Czech Republic [GC], no. 57325/00, 13 November 2007.

Dudgeon v United Kingdom, no. 7525/76, 22 October 1981.

Evans v United Kingdom [GC], no. 6339/05, 10 April 2007.

Fedotova and Others v Russia [GC], nos. 40792/10, 30538/14 and 43439/14, 17 January 2023.

Greece v United Kingdom, no. 176/56, European Commission of Human Rights, 26 September 1958.

Handyside v United Kingdom, no. 5493/72, 7 December 1976.

Hatton and Others v United Kingdom [GC], no. 36022/97, 8 July 2003.

Hirst v United Kingdom (No. 2) [GC], no. 74025/01, 6 October 2005.

Klass and Others v Germany, no. 5029/71, 6 September 1978.

Lautsi and Others v Italy [GC], no. 30814/06, 18 March 2011.

Oliari and Others v Italy, nos. 18766/11 and 36030/11, 21 July 2015.

Parrillo v Italy [GC], no. 46470/11, 27 August 2015.

S.A.S. v France [GC], no. 43835/11, 1 July 2014.

Schalk and Kopf v Austria, no. 30141/04, 24 June 2010.

Sunday Times v United Kingdom (No. 1), no. 6538/74, 26 April 1979.

Tyrer v United Kingdom, no. 5856/72, 25 April 1978.

Verein KlimaSeniorinnen Schweiz and Others v Switzerland [GC], no. 53600/20, 9 April 2024.