Some key concepts under the European Convention on Human Rights

It is important to notice that, with the exception of the prohibition of torture or inhuman or degrading treatment or punishment by art. 3, all the rights and freedoms guaranteed by the Convention are subject to some kind of limitation or qualification.

Turning to the phrase ‘necessary in a democratic society’, in Handyside v United Kingdom (1976) 1 EHRR 737, [48], while upholding the law relating to the forfeiture of obscene publications, the Court said that ‘while the adjective “necessary” … is not synonymous with “indispensable”, neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable”’. More positively, in Olsson v Sweden (1989) 11 EHRR 259, [67], while finding that the then current state of Swedish law provided no basis for the practice of social workers of restricting parental access to children who were in public care, the Court said:

According to the court’s established case-law, the notion of necessity implies that an interference corresponds with a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. (Emphasis added.)

These cases provide a useful introduction to two of the Strasbourg court’s key concepts, namely the margin of appreciation and the doctrine of proportionality. Taking these in turn, the margin of appreciation is the area for the exercise of discretion that the Strasbourg court accepts must remain with national legal systems. In Handyside (above) the Court said (at [48]–[49]):

By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the … “necessity” of a “restriction” or “penalty” ….

Consequently art. 10(2) leaves to the contracting states a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force.

Nevertheless, [the Convention] does not give the contracting states an unlimited power of appreciation. The court, which … is responsible for ensuring those states’ engagements, is empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with [a Convention right or freedom] …. The domestic margin of appreciation thus goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its “necessity”; it covers not only the basic legislation but also the decision applying it, even one given by an independent court.

Secondly, the doctrine of proportionality requires that the means which are used must be proportionate to the ends which are to be achieved, because, in the words of the Court in Soering v United Kingdom (1989) 11 EHRR 439, [89]:

Inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.