A.  Introduction

"Margin of appreciation" refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms,  but also for answering the particular questions of a given case in the absence of overall enacted or case law.  In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.

Similarly, margin of appreciation is designed to provide flexibility in resolving conflicts emerging from diverse social, political, cultural and legal traditions of Contracting States within the European context. Indeed, as shown below, one of the rationales behind the doctrine relates to the fact that national authorities are in a better position than the international judge to assess the concrete circumstances of a case. Yet, the said discretion must be exercised in a fair and impartial manner that does not run counter to the standards set out by law, i.e., the potential abuse of discretion poses the main challenge in the legitimate application of the doctrine. Since law regulates the rights and duties of the individual members of a given society, principled exercise of the doctrine to furnish legal clarity is of extreme importance. An over-subjective and unprincipled application of discretion might not only...