European Fundamental Rights Law Literature Notes – Week 5
ECHR Articles 3 and 53
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 53 – Safeguard for existing human rights
Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and
fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other
agreement to which it is a party.
Charter of Rights, Articles 4, 51, 52, 53
Article 4 – Prohibition of torture and inhuman or degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 51 – Scope
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union
with due regard for the principle of subsidiary and to the Member States only when they are implementing
Union law. They shall therefore respect the rights, observe the principles and promote the application thereof
in accordance with their respective powers and respecting the limits of the powers of the Union as conferred
on it in the Treaties.
Article 52 – scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms [under this Charter] must be provided for by law
and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations
may be made only if they are necessary and genuinely meet objectives of general interest […].
3. In so far as this Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and
scope of those rights shall be the same as those laid down by the ECHR. This provision shall not prevent Union
law providing more extensive protection.
4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions
common to the Member States, those rights shall be interpreted in harmony with those traditions.
6. Full account shall be taken of national laws and practices as specified in this Charter.
Article 53 – level of protection
Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental
freedoms as recognised in their respective fields or application, by Union law and international law and by
international agreements to which the Union, the Community or all the Member States are party, including the
ECHR, and by the Member States; constitutions.
Articles 2, 4(2) TEU
Article 2 TEU
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights […].
Article 4(2) TEU
The Union shall respect the equality of Member States before the Treaties as well as their national identities
[…].
Robert Spano, 'Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity'
(2014) Human Rights Law Journal 487-502
Main argument: the Strasbourg Court has gradually developed its approach in relation to the principle of
subsidiarity and the margin of appreciation by adopting a qualitative, democracy-enhancing approach in the
assessment of domestic decision-making in the field of human rights.
1 Preliminary Remarks
In general two common and interrelated claims about the ECHR have been made. Firstly, the Strasbourg Court
should not second guess domestic policy choices and judicial rulings in the national application of human rights.
Secondly, the Court has, when interpreting the ECHR, strayed far away from giving the text the meaning as it
was understood at the time when the Convention was drafted and adopted by the Member States. I will
, attempt to argue that, as a general matter, the two-dimensional claims about the workings of the Strasbourg
Court are based on rather simplistic assumptions on the work of the Court
2 Towards a more robust and coherent concept of subsidiary
The Brighton Declaration of April 2012, the preceding discussions and declarations at Interlaken in 2010 and at
Izmir in 2011, and the adoption by the Parliamentary Assembly of the Council of Europe of Protocol 15 have in
my view created an important incentive for the Court in recent years to develop a more robust and coherent
concept of subsidiarity. However, the call of an increased emphasis on subsidiarity is by definition a call for an
increased diversity in the protection of human rights.
3 Lord Hoffmann
I agree with Lord Hoffmann that, in principle, at the level of abstraction, human rights may be universal but at
the level of application, the messy detail of the concrete problems, the human rights which these have
abstractions have generated are national. However, I do not agree with his conclusion that the ECtHR is not a
suitable body to decide whether the Member States have, in good faith, applied at national level the general
principles of human rights that flow from the Convention. This is because the treaty is based on the crucial
assumption that all the Contracting Parties agree that, in principle, the protection of human rights is not an
issue that is purely a matter of domestic concern. It is in this sense that one should understand Article 19 ECHR,
which provides that the Court is to ‘ensure the observance of the engagements undertaken by the High
Contracting Parties in the Convention and the Protocols thereto’. Whether an international court is suitable for
deciding whether a violation of human rights has occurred at national level is a question of degree, to be
analysed along a spectrum of possibilities, at one end the reassessment by the international court of domestic
decision-making, and at the other, the granting of full and unlimited deference.
4 A Qualitative and Democracy-Enhancing Approach in the Implementation of the Principle of Subsidiarity and
the Margin of Appreciation
A number of cases support the claim that the Court is in the process of developing a more robust and coherent
concept of subsidiarity as well as attempting to reformulate the conditions for allocating deference to the
Member States. For instance, in Animal Defenders International v United Kingdom, the applicant, an NGO
based on London, complained about the prohibition on paid political advertising by the Communications Act
2003. Here, the Court held that “The quality of the parliamentary and judicial review of the necessity of the
measure is of particular importance in this respect, including the operation of the relevant margin of
appreciation”. What was clear was the crucial factors in the eventual findings were the extensive examination
by Parliament, the cross-party support for the Communication Act as well as the analysis of the compatibility of
the Act with the Convention. Thus, the Strasbourg Court is currently in the process of reformulating the
substantive and procedural criteria that regulate the appropriate level pf deference to be afforded to the
Member States so as to implement a more robust and coherent concept of subsidiarity. With this qualitative,
democracy-enhancing approach, the Court’s reformulation or refinement of the principle of subsidiarity, and
the margin of appreciation, introduces a clear procedural dimension that can be examined on the basis of
objective factors informed by the defendant government in its pleadings. However, this also allows for
restrictions by the Member States.
5 Subsidiarity, the Margin of Appreciation and Exhaustion of Domestic Remedies
If a qualitative democracy-enhancing approach should be considered an important procedural criterion in the
construction and application of the margin of appreciation in individual cases, the admissibility criterion on
exhaustion of domestic remedies under Article 35(1) ECHR is of vital importance. The obligation to exhaust
domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in
respect of his or her Convention grievances.
Bruno De Witte, ‘Article 53’ in S Peers, T Hervey, J Kenner and A Ward (eds) The EU Charter of
Fundamental Rights – A Commentary (Oxford: Hart Publishing, 2013)
A Sources of Article 53
Article 53 is clearly inspired by similar provisions in international human rights treaties, such as Article 53 ECHR.
Broadly speaking it has been read as allowing the parties to the Convention to offer more protection to the
ECHR Articles 3 and 53
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 53 – Safeguard for existing human rights
Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and
fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other
agreement to which it is a party.
Charter of Rights, Articles 4, 51, 52, 53
Article 4 – Prohibition of torture and inhuman or degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 51 – Scope
1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union
with due regard for the principle of subsidiary and to the Member States only when they are implementing
Union law. They shall therefore respect the rights, observe the principles and promote the application thereof
in accordance with their respective powers and respecting the limits of the powers of the Union as conferred
on it in the Treaties.
Article 52 – scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms [under this Charter] must be provided for by law
and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations
may be made only if they are necessary and genuinely meet objectives of general interest […].
3. In so far as this Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and
scope of those rights shall be the same as those laid down by the ECHR. This provision shall not prevent Union
law providing more extensive protection.
4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions
common to the Member States, those rights shall be interpreted in harmony with those traditions.
6. Full account shall be taken of national laws and practices as specified in this Charter.
Article 53 – level of protection
Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental
freedoms as recognised in their respective fields or application, by Union law and international law and by
international agreements to which the Union, the Community or all the Member States are party, including the
ECHR, and by the Member States; constitutions.
Articles 2, 4(2) TEU
Article 2 TEU
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights […].
Article 4(2) TEU
The Union shall respect the equality of Member States before the Treaties as well as their national identities
[…].
Robert Spano, 'Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity'
(2014) Human Rights Law Journal 487-502
Main argument: the Strasbourg Court has gradually developed its approach in relation to the principle of
subsidiarity and the margin of appreciation by adopting a qualitative, democracy-enhancing approach in the
assessment of domestic decision-making in the field of human rights.
1 Preliminary Remarks
In general two common and interrelated claims about the ECHR have been made. Firstly, the Strasbourg Court
should not second guess domestic policy choices and judicial rulings in the national application of human rights.
Secondly, the Court has, when interpreting the ECHR, strayed far away from giving the text the meaning as it
was understood at the time when the Convention was drafted and adopted by the Member States. I will
, attempt to argue that, as a general matter, the two-dimensional claims about the workings of the Strasbourg
Court are based on rather simplistic assumptions on the work of the Court
2 Towards a more robust and coherent concept of subsidiary
The Brighton Declaration of April 2012, the preceding discussions and declarations at Interlaken in 2010 and at
Izmir in 2011, and the adoption by the Parliamentary Assembly of the Council of Europe of Protocol 15 have in
my view created an important incentive for the Court in recent years to develop a more robust and coherent
concept of subsidiarity. However, the call of an increased emphasis on subsidiarity is by definition a call for an
increased diversity in the protection of human rights.
3 Lord Hoffmann
I agree with Lord Hoffmann that, in principle, at the level of abstraction, human rights may be universal but at
the level of application, the messy detail of the concrete problems, the human rights which these have
abstractions have generated are national. However, I do not agree with his conclusion that the ECtHR is not a
suitable body to decide whether the Member States have, in good faith, applied at national level the general
principles of human rights that flow from the Convention. This is because the treaty is based on the crucial
assumption that all the Contracting Parties agree that, in principle, the protection of human rights is not an
issue that is purely a matter of domestic concern. It is in this sense that one should understand Article 19 ECHR,
which provides that the Court is to ‘ensure the observance of the engagements undertaken by the High
Contracting Parties in the Convention and the Protocols thereto’. Whether an international court is suitable for
deciding whether a violation of human rights has occurred at national level is a question of degree, to be
analysed along a spectrum of possibilities, at one end the reassessment by the international court of domestic
decision-making, and at the other, the granting of full and unlimited deference.
4 A Qualitative and Democracy-Enhancing Approach in the Implementation of the Principle of Subsidiarity and
the Margin of Appreciation
A number of cases support the claim that the Court is in the process of developing a more robust and coherent
concept of subsidiarity as well as attempting to reformulate the conditions for allocating deference to the
Member States. For instance, in Animal Defenders International v United Kingdom, the applicant, an NGO
based on London, complained about the prohibition on paid political advertising by the Communications Act
2003. Here, the Court held that “The quality of the parliamentary and judicial review of the necessity of the
measure is of particular importance in this respect, including the operation of the relevant margin of
appreciation”. What was clear was the crucial factors in the eventual findings were the extensive examination
by Parliament, the cross-party support for the Communication Act as well as the analysis of the compatibility of
the Act with the Convention. Thus, the Strasbourg Court is currently in the process of reformulating the
substantive and procedural criteria that regulate the appropriate level pf deference to be afforded to the
Member States so as to implement a more robust and coherent concept of subsidiarity. With this qualitative,
democracy-enhancing approach, the Court’s reformulation or refinement of the principle of subsidiarity, and
the margin of appreciation, introduces a clear procedural dimension that can be examined on the basis of
objective factors informed by the defendant government in its pleadings. However, this also allows for
restrictions by the Member States.
5 Subsidiarity, the Margin of Appreciation and Exhaustion of Domestic Remedies
If a qualitative democracy-enhancing approach should be considered an important procedural criterion in the
construction and application of the margin of appreciation in individual cases, the admissibility criterion on
exhaustion of domestic remedies under Article 35(1) ECHR is of vital importance. The obligation to exhaust
domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in
respect of his or her Convention grievances.
Bruno De Witte, ‘Article 53’ in S Peers, T Hervey, J Kenner and A Ward (eds) The EU Charter of
Fundamental Rights – A Commentary (Oxford: Hart Publishing, 2013)
A Sources of Article 53
Article 53 is clearly inspired by similar provisions in international human rights treaties, such as Article 53 ECHR.
Broadly speaking it has been read as allowing the parties to the Convention to offer more protection to the
