Margin of appreciation in the case law of the European Court of Human Rights : the perspective of constitutional identity protection

The paper deals with the application of the margin of appreciation doctrine from the perspective of the protection of constitutional identity. The discussion is divided into three parts. First, the author identifies four situations in which the margin of appreciation is taken into consideration by the European Court of Human Rights. In the second part, the author analyses these situations in the light of the question about the grounds of the doctrine of margin of appreciation in the European Convention on Human Rights. Finally, an attempt is made to show how the application of the margin of appreciation doctrine affects the protection of the constitutional identity of Contracting States. The analysis shows notably that the European Court of Human Rights refers to this doctrine in a relatively liberal way. The practice of application of the margin of appreciation in situations when there is no common approach (Euro-pean consensus) to a particular case raises concerns. The paper concludes that the application of the margin of appreciation doctrine without sufficient justification reduces the level of protection of the constitutional identity of Contracting States