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[2014-2015金杜海外实习奖学金项目]刘苏:欧洲人权法院实习报告
2015/11/18

    I. General introduction

    It has been six months since I came to Strasbourg, a beautiful city near the border of France and Germany where many international institutions located, and worked for Research Division of European Court of Human Rights.

    The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. The main task of the Research Division, where I have been working for, is to prepare and provide research reports on comparative law, international law and ECHR case-law for pending cases to assist the Grand Chamber and Sections in the examination of the cases, and some of these reports were produced at the request of other departments of the Council of Europe. During these two months in the court, I really feel the high prestige of this court among member states and its honorable work and contribution in the development of human rights law.

    The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe. It can be seen from the fact that in almost fifty years the Court has delivered more than 10,000 judgments, and these are binding on the countries concerned and have led governments to alter their legislation and administrative practice in a wide range of areas.

    Given the unique circumstances that diverse culture and history background and the common consensus to promote human rights are both important considerations for application of the Convention, this court has developed an inherent and permanent principle under the Convention, namely the margin of appreciation principle. And there must exist principled criteria for the application of this principle, which are developed in the court’ jurisprudence. And I will take a recent Grand Chamber case for example.

    II. Margin of appreciation principle

    A. The notion of this principle

    Margin of Appreciation is a concept developed by the European Court of Human Rights, willing to grant national authorities some space in fulfilling the obligations the European Convention on Human Rights when considers whether a member state has breached the convention. It allows the court to take into account the different circumstances and situations in the member states and interpreted the Convention in a different manner when applying to different member states. Some elements that need to be taken into consideration are the cultural, historic and philosophical differences of the states in question. The margin of appreciation principle is designed to provide flexibility in settling the conflicts emerging from diverse social, political, cultural and legal traditions of member states.

    B. the Rationale behind this principle

    1. Domestic judicial organs

    One of the rationales behind the principle lies in the fact that domestic judicial organs are in a better position than the judges of international institution when determining the specific circumstances of a case. It is the same reason for Article 35 of the Convention providing the admissible criteria of the court that ‘The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.’ or the non-exhaustion of domestic remedies criteria.

    2. Judicial discretion

    Under this principle, member states are entitle to exercise discretion in balancing individual rights and national interests for the society. . Similarly, one of the important functions of judicial discretion is for bridging the gap between the laws and changing realities of dynamic social organisms. Therefore, in this regard, it can be deduced that this principle is based on the notion of judicial discretion, which means a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions and is entitled to exercise discretion to make fair decisions in a specific case.

    At the same time, it shall be taken with great caution that the principle must be exercised in a fair and impartial manner that does not go against the conditions prescribed by law in order to prevent the potential abuse of discretion and to ensure the legitimate application of this principle.

    3. Respect for sovereignty

    Recalling the drafting history of the Convention, it was adopted on diverse economic, cultural, and legal traditions enjoyed by the member states. The need to respect member states’ competence and sovereignty compelled this Court to follow this principle with respect, and also for the enforcement of the whole convention system depends on “good faith” and “continuing cooperation” of the states. In this regard, this principle can draw a line between the domestic judicial authorities and this Court and also prevented this Court from interfering the internal affairs that far.

    C. Application of this principle

    While in theory there are no limits to its application, the Court has not used it in the assessment of the absolute rights enshrined in Articles 2 to 4 of the Convention, which respectively protect, namely the right to life, the freedom from torture and from inhuman or degrading treatment or punishment and the freedom from slavery, servitude and compulsory labor. These are rights that attract a high degree of scrutiny on the part of the Convention and no limitations can be placed on their exercise. Although it has not been expressly confined to these rights, the margin of appreciation is however most illustratively employed in respect of the qualified rights of the Convention, which is provided in Articles 8 to 11 of the Convention. These protect, respectively, the right to private and family life, the freedom of thought, conscience and religion, the freedom of expression, and the freedom of association. All of these provisions acknowledge the possibility of limitations to the protected right, where such limitations are carried out as “prescribed by law” or “in accordance with the law”, “pursuing a legitimate aim”, and are “necessary in a democratic society”. A degree of derogation, for example, a requirement to take national standards into account, can be inferred from the wording of these provisions. The margin of appreciation is also prominent in the assessment of Article 14, which enshrines the right not to be discriminated against in the exercise of Convention rights.

    1. The justification for state’s interference

    The rights protected under the Convention are not always absolute. There are some rights may be interfered or derogated by the States under particular circumstances only if several conditions are met.

    (a) Prescribed by law/in accordance with law

    This requirement for domestic law sets out that that there must be a measure of legal protection against arbitrary interference by public authorities with the right in question, especially where a power of the executive is exercised in secret and the risk of arbitrariness is evident, which has been recognized by many case like Malone v. the United Kingdom and Silver and others v. the United Kingdom.

    To satisfy this requirement, the legislation in question shall be accessible and foreseeable. It means that a person who is likely to be affected by the rule should have access to it, and that the law should be sufficiently clear to allow individuals to govern their future behavior, which is recognized in the case like Sunday Times v. the United Kingdom. This court found that “a law had to be formulated with sufficient precision to enable the citizen to regulate his conduct”, and that “person must be able – if need be with appropriate advice – to foresee, up to a reasonable degree - given the circumstances, the consequences which a certain action may entail. Those consequences need not, however, be foreseeable with absolute certainty.”

    (b) Pursuing legitimate aims

    As it is provided in Article 18 of the Convention, “the restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” This requirement insists that any interference with the rights under the Convention has to be in accordance with a legitimate aim and the Member State is responsible to show that the relevant legal provisions pursuing one of the aims, and was genuinely applied to the applicant in a particular case.

    (c) Necessary in a democratic society/proportionality

    This criteria requires the states to interfere the rights where it is necessary for the given circumstances. Further, this court explained that “necessary” meant that there must be a “pressing social need” for the interference, and the evaluation of democratic necessity is followed by the principle of proportionality.

    Although the Member State is entitled to a margin of appreciation under the Convention, it is the Court’s main role is to examine the democratic necessity and the principle of proportionality is at the heart of the Court’s investigation into the reasonableness of the restriction. The principle of proportionality requires that there be a reasonable relationship between a particular objective to be achieved and the means used to achieve that objective. Under this principle, the court shall examine that there is “a reasonable relationship between the means and the aim sought to be realized” or “a fair balance” between the general and individual interests at stake. Furthermore, it has been held that the possible existence of alternative solutions does not make legislation unlawful under the right to property; and that it is not for the Court to consider whether legislation represents the best way of dealing with the problem or whether the legislative discretion should have been exercised in another way.

    The examination of proportionality is on a case by case basis, however, the Court will consider several elements, such as the nature or the significance of the right, the objective and the extent of interference and whether a particular measure could be achieved by a less restrictive means.

    2. The “European Consensus” standard

    It is adopted by the Court the “European Consensus” standard is a generic label used to describe the Court’s inquiry into the existence or non-existence of a common ground, mostly in the law and practice of the Member States. When there is a sufficient consensus among European community concerning the issue in question, the States involved is considered to have a narrow margin of appreciation in the specific field. Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider.

    III. Biao v. Denmark case analysis

    A. Case summary

    The European Court of Human Rights held a Grand Chamber hearing on 1 April 2015 in the case of Biao v. Denmark, concerning the alleged discrimination in granting family union in Denmark.

    The applicants are husband and wife. The first applicant is a naturalized Danish citizen of Togolese origin who lived in Ghana from the age of 6 to 21, entered Denmark in 1993 aged 22 and acquired Danish citizenship in 2002. He married the second applicant in 2003 in Ghana. She is a Ghanaian national who was born and raised in Ghana who at the time of the marriage had never visited Denmark and did not speak Danish. After the marriage, the second applicant requested a residence permit for Denmark, which was refused by the Aliens Authority on the grounds that the applicants did not comply with the requirement under the Aliens Act (known as the “attachment requirement”) that a couple applying for family reunion must not have stronger ties with another country – Ghana in the applicants’ case – than with Denmark. The “attachment requirement” was lifted for persons who had held Danish citizenship for at least 28 years, as well as for non-Danish nationals who were born and/or raised in Denmark and had lawfully stayed there for at least 28 years (the so-called 28-year rule under the Aliens Act). The applicants unsuccessfully challenged the refusal to grant them family reunion before the Danish courts. They submitted, inter alia, that the 28-year rule resulted in a difference in treatment between two groups of Danish nationals, namely those who were born Danish nationals and those who acquired Danish nationality later in life. The first applicant could not therefore be exempted from the attachment requirement until 2030 when he would reach the age of 59.

    In the meantime, the second applicant entered Denmark on a tourist visa. Some months later, the couple moved to Sweden where they had a son, born in 2004. Their son has Danish nationality due to his father’s nationality.

    B. Submissions from both parties

    1. The applications’ submission

    The applicants maintained that the “attachment requirement” for Danish citizens applying for family reunion with their non Danish spouse living abroad did not pursue a legitimate aim because allegedly it was introduced to target Danish citizens of non-Danish ethnic or national origin. The applicants thus contested that the aim had been to assist the integration of newcomers or to control immigration due to unemployment in Denmark. They also dismissed the notion that the aim related to the economic well-being of the country since, in their view, spousal family reunion has no financial implication for the State, because the residing spouse was obliged to provide for the joining spouse.

    As a consequence of the refusal by the Danish authorities to grant them family reunion, the applicants were forced to move in exile to Sweden, which has adopted a more liberal attitude towards foreigners in its legislation. The applicants contended that exile caused them humiliation and suffering.

    2. The government’s contention

    The Government contended that the interference was in accordance with the law, namely section 9, subsection 7, of the Aliens Act, pursued the legitimate aim of immigration control and improving integration, being an important economic and social matter, and that the refusal to grant the second applicant family reunion in Denmark struck a fair balance and was necessary in a democratic society.

    The attachment requirement was designed to secure integration into Danish society through language skills, education, training and employment, the logic being that if the resident spouse was well integrated, he or she would be better suited to assist the foreign spouse’s integration. The Government noted in that connection that the attachment requirement draws on many of the same criteria that the Court has emphasized in its case?law relating to family reunion as regards the spouses’ familial and linguistic attachment to their respective countries of residence as well as their history of employment and education and the length of their stay in those countries.

    Moreover, the Aliens Act provides for derogation from the attachment requirement if there are “exceptional reasons” which is an implicit reference to Denmark’s treaty obligations, including in particular Article 8 of the Convention.

    C. ECHR approach on right of family union in immigration issue- the application of Margin of Appreciation principle

    In its Chamber judgment of 25 March 2014 the Court held, unanimously, that there had been no violation of Article 8 and, by four votes to three, that there had been no violation Article 14 in conjunction with Article 8.

    1. Application of margin of appreciation principle

    The Court found that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation.

    The Court also found in the precedents that the authorities enjoy a wide margin of appreciation in particular when deciding on custody, a stricter scrutiny is called for regarding any further limitations and any legal safeguards designed to secure an effective protection of the right of parents and children to have their family life respected.

    Article 8 requires that the domestic authorities strike a fair balance between the interests involved and that, in the balancing process, a particular importance should be attached to the best interests of the child, who, depending on their nature and seriousness, may override those of the parents.

    In family reunion matters, however, a State’s margin of appreciation is not very wide because family reunion is a core aspect of the right to family life in the country of one’s citizenship, i.e., the fact of living there with one’s spouse and children. Different treatment of citizens based on ethnic or national origin (the latter meaning, inter alia, origin related to citizenship) may amount to discrimination on grounds of ethnicity or nationality. Very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of ethnic or national origin as compatible with the Convention.

    Therefore, in the pending case, the court observed in particular that the Danish authorities had struck a fair balance between the public interest in ensuring effective immigration control, on the one hand, and the applicants’ need to be granted family reunion in Denmark, on the other. The couple had never been given any assurances by the Danish authorities that Ms. Biao would be granted a right of residence in Denmark and, following amendments to the Aliens Act which had entered into force before their marriage, they could not have been unaware of the precarious nature of her immigration status when she entered Denmark on a tourist visa. Indeed, there was nothing to prevent the couple from exercising their right to family life in Ghana where they both had strong ties.

    As concerned the discrimination issue, the Court held in particular that that there had been a difference in treatment between Mr. Biao who had been a Danish national for fewer than 28 years and persons who had been Danish nationals for more than 28 years. However, it should also be recalled that the first applicant had been a Danish national for less than two years, when he was refused family reunion. To refuse to exempt the applicant from the attachment requirement after such a short time cannot in the Court’s view be considered disproportionate to the aim of the 28-year rule, namely to exempt from the attachment requirement a group of nationals who, seen from a general perspective, had lasting and long ties with Denmark so that it would be unproblematic to grant family reunion with a foreign spouse because it would normally be possible for such spouse to be successfully integrated into Danish society.

    Accordingly, in the specific circumstances of the present case, there has been no violation of Article 14 taken in conjunction with Article 8 of the Convention.

    2. Application of the “European Consensus” standard

    Seen from the relevant cases and state practice in member states, the general conditions for granting family reunion within a large number of Member States seems to be that the persons seeking family reunion should fall into one of the categories of beneficiaries and be in possession of valid personal documents and of certificates proving family ties with the nationals. They should normally have sufficient means of subsistence, adequate housing, health insurance and the national spouse should often have a registered place of residence in the country. Some countries require that spouses should have reached either 18 or 21 years of age. The requirement that candidates should have basic knowledge of the national language is also common.

    Furthermore, there should be no other grounds for the refusal of a permit, such as marriages of convenience, giving false identity and/or documents, concerns of public order or security and public health, a criminal record and being a burden on the welfare system. Some countries specify that candidates should not have links with extremist or terrorist structures or with organized crime. A number of countries condemn in particular giving false identity and statements in the proceedings.

    In a number of countries, the unlawful entry/stay of an alien is an impediment to the acquisition of the residence permit. However, some countries specify that it is not. Some countries may provide for special conditions, for instance in view of the prevention of polygamy or human trafficking. The requirements for family reunion usually vary depending on the type of permit sought. For long-stay permits and the acquisition of nationality, the duration of the marriage, the existence of genuine life community and residence in the country are relevant factors.

    In conclusion, the final decision of the Court on how much latitude of such appreciation is to be given to national authorities depends on the weight the Court attaches to the following factors: the nature of the right, the aim pursued by the contested measure and the European consensus. This is the reason why the key for understanding how and where discretion legitimately arises, is to fully grasp the means in which the Court attempts to achieve a fair balance between the two interests.

    III. Reflection on Chinese approach in human rights field

    Benefited from the work for research division and the opportunities of attending the Grand Chamber hearings, I can feel the principle of margin of appreciation as a living instrument for the development of the human rights jurisprudence. European Convention of Human Rights and the Court can be considered as the best system in the world for protection of human rights, one of the reason of which is the application of such principle.

    As far as I am concerned, the principle of margin of appreciation is a good example and can also have a reflection on Chinese approach in human rights field, and it is possible that China can learn from and even adopt the well-developed theory of human rights from ECHR.

    A.The rational is actually shared both in Europe and China.

    Although Council of Europe and China are under different judicial system and legislation system when it comes to human rights field. But actually considering the nature and essence of human rights, the rationale behind this is shared. Take the principle of margin of appreciation for example.

    First and foremost, this principle is applied under the condition that the sovereignty of the State is always respected, which is also correspond to Chinese law system theory. Bearing this principle in mind, there will be less obstacles for China to adopt European human rights theory and practice. While on the other hand, the member states, when adopted the Convention, is committed to be obliged by the judgment of the Court and to execute it as well. In this regard, it can be reached a balance between the respect of State’s sovereignty and the effective protection of human rights.

    Further, one of the functions of this principle is to strike a balance between the individual and the whole society. China has actually implemented in such way, for example in the newly-amended the Criminal Procedural Law, to respect for human rights and to secure the whole society are both objectives of the Criminal Procedural Law. Similarly, prior to the signing of the Convention, the States had a discretionary power regarding the protection of the human rights at a national level. At the time of its enforcement, the Convention was endorsed as a minimum standard by the Member States of the Council of Europe. This means that the States have the possibility to ensure a higher level of protection of these rights, and, also, the obligation not to decrease the standard within their own legal systems. Given the purpose of creating a common standard, the States gave up a considerable part of their sovereignty which was seen as the freedom of choice in implementing a national system of human rights protection. In this context, the margin of appreciation can be found only in several domains which preserve the States’ freedom of action. However, the margin of appreciation goes hand in hand with the European supervision. The rationale behind the European review resides in the Court’s fundamental role as an arbitrator between the States and their citizens. This implies the need for the Court to establish a fair balance between two diverging interests: the interest of the States in maintaining a wider power of discretion and the applicant’s interest in benefiting from a higher level of protection. The interests are opposite due to the fact that, usually, a wider power of discretion signifies a lower protection standard for the citizens. Therefore, the margin of appreciation doctrine may be analyzed from two different points of view: the State’s and the individual’s.

    The Brighton Declaration of April 2012 placed significant emphasis on the margin of appreciation and its future development. The Declaration describes the European Convention on Human Rights as a successful system of protecting human rights comprising: policies, laws, and courts, both at the national and at the supranational levels. Therefore, the value of this principle can be regarded as shared in an international level.

    B.Mutual communication and learn from each other is the ideal way.

    Promoting mutual talks and communication in an international level can always improve the general development, which is also applied in the human rights law field. Human rights problem is an international problem that should be taken attention to by the whole nations.

    Different countries are facing different human rights issues and the we are also faced with some common problems, such as how to balance the competing interests of securing national safety and protection of individual’s rights. Also the margin of appreciation has not been uncontroversial. The Court has been criticized for referring to it almost automatically in its case law, and thus at times deferring to national standards without carrying out a substantive assessment of fundamental rights. Also the margin has been described as being “as slippery and elusive as an eel” and criticized for its unclear nature and its unpredictability. These criticisms are to some extent justified. However, further mechanisms have been developed to predict and assess the application of the margin of appreciation within the Court’s practice. Most illustratively, there is a “margin within the margin”. Even where the Court sets a minimum standard, such as the necessity to recognize same-sex relationships, it leaves the manner in which that standard is implemented to national authorities. It’s  actually a common problem shared in case law countries, while China as a civil law country, can provide better solution in this regard. Only through mutual communication, we can learn from each other to solve such shared problems.

    Also we have to face the fact that there are significant difference on the history background and legal system between each other, but appreciation for such differences is also the common value. Communication does not mean that the whole international community should follow the same standard of protection or legal system, it is the way of improving the overall level of human rights development. Again, this principle, which encourages national courts to seek to comprehend and to apply the Court’s case law and can drive better understanding of the Convention’s working model and of the Court’s practice at the national level, is thus a form of dialogue between the courts in different legal system in an international level, which can lead to enhanced protection of human rights throughout Europe and hopefully throughout the globe in the future.

    C.Human rights protection is a gradual process

    Since the Constitution of China was amended and “respect and protection of human rights” was added in to the Constitution, China has made great progress in human rights protection in legislative and judicial fields. But seeing from the European development in human rights law, such development is a long-lasting and gradual process. “European consensus” often takes a considerable time in forming into a mature recognition in the European communities. For example, only until 1981, this Court has recognized the legitimacy of homosexuality. It also reflects the change of people and society’s attitude towards some moral topics, therefore the development of human rights is often based on the economic and cultural development of the society.

    China is faced with a even more diverse and complicated circumstances in this field, and also consider the large population in one country, the way of developing protection of human rights shall be followed in a more careful and scientific way. But no matter what kind of changes or circumstances we are facing, it can never stop our pace of pursuing the protection of human rights and building up our own legal system suitable for China.

    IV. Conclusion

    As far as I am concerned, the principle of the margin of appreciation is a good example and a key to get to know the legal system of European Court of Human Rights, as it plays an important systemic role in the application of the European Convention on Human Rights. It fulfills the ECHR’s objective of supervising the review of human rights provisions conducted by domestic courts and allows for an effective sharing of human rights responsibilities between the national and supranational levels. Also the development of the margin of appreciation shows that this principle is regarded by both the ECHR and the countries that have signed up to the Convention as a crucial linking point between their respective systems of human rights protection. These developments also encourage national courts to make the most of the balancing powers that the margin of appreciation doctrine grants them, also paving the way for China to further dialogue with the ECHR in the future.

    Being the only Asian in the European Court of Human Rights, human rights problems in fact open the door for me to get to know the diverse aspects of European countries, through which I get touch with diverse topics of Europe, historical and contemporary, cultural and political, physically and mentally. The best experience in such an international institution is such “big” topics as human rights can be discussed within such a small space, in different languages by people with different backgrounds from over 40 countries. Despite so many differences, it is such a harmonious community in the court with nice and intelligent people working together.

    As a law student major in international law, having an opportunity in an international institution and experience how this institution functions and works inspires me a lot in my learning and researching. But the benefit I got from such experience can never be expressed in an academic way, while much more benefit that influence me is to appreciate the value and the function of law in such a diverse world. The more you see, the more you want to learn. The six-month traineeship in European Court of Human Rights is definitely a treasure in my life.

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