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La marge d'appréciation de l'Etat dans l'exécution des décisions de la Cour Européenne des Droits de l'Homme

Abstract : In accordance with Article 46 of the European Convention on Human Rights, the Contracting Parties undertake to abide by the final judgment of the European Court of Human Rights. It is however apparent from the Court’s case-law that its decisions are “essentially declaratory” and, by that, a freedom to choose the means to be used to fulfill the obligation to execute the decision is given to the respondent State. In any event, the sense of the execution of the Court’s decisions would remain paradoxical if we were to stop at accepting at the same time that a State must execute the European decision while having the free choice in the manner to achieve so. Such a shortcut would lead to a poor execution of the decisions of the Court in so far as, on one hand, the purpose of the enforcement of the decision is vaguely specified and, on the other hand, freedom of choice is expressly precise. The doctrine of the State's margin of appreciation thus gives the flexibility needed in delimiting the roles of the Court and those of the respondent State for the purpose of a better implementation of European decisions. To that end, the dual effect of the European decision only makes sense if it is accepted that the State indeed enjoys a margin of appreciation in the execution of the Court’s decision but that the limits of such margin are laid by the Court itself, in its decision. It is therefore necessary to systematically start from the decision of the Court which must specify what the expected execution is, and therefore what the compensation for the violation of the Convention should be, in order to determine whether the margin of appreciation of a State, at the stage of implementation of the decision, is rather broad or rather narrow. The freedom of choice of the respondent State as to the measures to be taken to implement the decision according to the expectations of the Court will thus relate to a range of choices predefined in the decision, depending on the nature of the violation of the Convention or the gravity of the consequences of such violation. In short, the more precise the ranges of choices of measures are, the more likely it is that the decision will be better executed. The essence of the work is therefore to try to identify the criteria for determining the extent of the State’s margin of appreciation in the execution of the Court’s decision. However, such an exercise cannot be carried out without first defining the very notion of “margin of appreciation” which, even if it has already been used by the Court and by a part of the doctrine, has not received a convincing definition, or has often been indistinctly associated with the notion of “margin of manoeuver”, the “principle of subsidiarity”, or even sovereignty, while it cannot be confused with them.
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Mahaliana Ravaloson. La marge d'appréciation de l'Etat dans l'exécution des décisions de la Cour Européenne des Droits de l'Homme. Droit. Université Paris Saclay (COmUE), 2019. Français. ⟨NNT : 2019SACLS039⟩. ⟨tel-02724858⟩



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