Margin of Appreciation, Violation and (In)Compatibility. Why the ECtHR Might Consider Using an Alternative Mode of Adjudication

Despite its success as a transnational court, the European Court of Human Rights has become a much-disputed institution over the past decade, one of the reasons being its frequent references to the 'margin of appreciation'. The use of the doctrine and its effects are often unpredictable, resulting in a questioning of the legitimacy of the Court and a renewed reflection on the role of the Court vis-à-vis the Member States of the European Convention. In order to contribute to rethinking this role, this article suggests an alternative mode of review as a supplement to the existing forms of adjudication by the Court. By means of three cases studies it will be illustrated that the margin of appreciation doctrine often lacks a clear outcome regarding the Convention standard. The result is a weakening of the (constitutional) position of the Court under the Convention system. An alternative mode of adjudication for the Court seeks to strengthen this position. The new form of review enables the European Court of Human Rights to act as a 'constitutional court' and set a standard for the Member States, without unduly infringing state sovereignty.