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Deference in International Courts and TribunalsStandard of Review and Margin of Appreciation$
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Lukasz Gruszczynski and Wouter Werner

Print publication date: 2014

Print ISBN-13: 9780198716945

Published to Oxford Scholarship Online: November 2014

DOI: 10.1093/acprof:oso/9780198716945.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 25 September 2020

The European Court of Human Rights and Standards of Proof

The European Court of Human Rights and Standards of Proof

An Evidentiary Approach towards the Margin of Appreciation

(p.235) 13 The European Court of Human Rights and Standards of Proof
Deference in International Courts and Tribunals

Mónika Ambrus

Oxford University Press

Chapter 13 looks at the concept of margin of appreciation through the lens of standard of proof. Based on a close reading of ECtHR case law, the chapter concludes that the concepts of standard of review and standard of proof are closely connected as the degree of discretion (which is determined by the margin of appreciation doctrine) also relates to the extent to which the allegations have to be proven by the State in order to be accepted by the reviewing Court (this aspect is determined by standard of proof). Against this background, it explores the standards of proof applied by the ECtHR as well as the factors influencing their determination. Taking into account Franck’s theory of procedural fairness, it argues that that the Court’s assignment or application of the standards of proof largely fails to meet the relevant criteria, and are opaque and incoherent.

Keywords:   margin of appreciation, standard of review, standard of proof, European Court of Human Rights, ECtHR, legitimacy

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