Jeszcze wokół koncepcji margin of appreciation w kontekście Protokołu nr 15 do EKPCz
Further Discussion Relating to the Concept of Margin of Appreciation in the Context of Protocol No. 15 to the ECHR

Summary/Abstract: One of the most important and yet much-debated institutions in the Council of Europe system is the concept of margin of appreciation. The expansion process of the Council of Europe has increased the cultural and legal heterogeneity of the Council of Europe. The European system of protection is subsidiary to states’ protection systems, which are rooted in different cultural and legal traditions. At the same time, accession to the European Convention on Human Rights entails the search for a uniform common standard of human rights protection. The fundamental and constantly recurring question, therefore, was whether, within the framework of the system of creating European standards and a unified system of protection, there is room for differentiation, and if so, in what areas. The answer to these questions was the concept of margin of appreciation, developed since the 1970s in the jurisprudence of the Council of Europe. In 2012, it was introduced by Protocol 15 of the Council of Europe into the preamble of the Convention. It went from being a jurisprudential institution to one that is rooted in the text of the Convention itself. This underscores the importance attributed to the concept of margin of appreciation in the relationship between the European Court and States, while also seeking to strengthen the principle of subsidiarity. The question that arises in this context is whether the changes introduced by Protocol 15 will have a significant impact on the functioning of the Court and will lead to a change in jurisprudence. Only time will tell. Much depends on how the Court will apply the newly added principles and whether it will give them more weight now that they have been incorporated into the preamble of the Convention.

• Details
• Contents