Lautsi vs. Italy: Questioning the Majoritarian Premise

2015 ◽  
Vol 8 (3) ◽  
pp. 565-587 ◽  
Author(s):  
Nahshon Perez
Keyword(s):  
Human Rights ◽  
Public Schools ◽  
Court Decision ◽  
European Convention ◽  
Decision Point ◽  
Italian Law ◽  
European Court

Abstractin 2011, the European Court of Human Rights (ECHR) published its seminal decision in theLautsi vs. Italycase, arguing that the requirement in Italian law that all public schools will display crucifixes in each classroom does not violate the European Convention on Human Rights. This decision gave rise to a storm of reactions. The goal of this article is to argue, that the ECHR used “majoritarianism” in an under-theorized way and/or unattractive way, and that this usage of the concept can be identified in other cases as well (see the highly controversialDahlab vs. Swiss, ECHR). Demonstrating the procedural, monopoly based and circularity problems within the ECHR decision point to potential ways to criticize the court decision, without taking sides in the heated and highly divisive debate between so called “neutrality supporters” and (roughly) “endorsed church — majoritarian supporters,” sides of the debate surrounding “Lautsi.”

Winning the Battle by Losing the War: The Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity

2011 ◽  
Vol 6 (3) ◽  
pp. 213-219 ◽  
Author(s):  
Pasquale Annicchino
Keyword(s):  
Human Rights ◽  
Public Schools ◽  
European Convention ◽  
Russian Orthodox ◽  
Orthodox Church ◽  
Religious Groups ◽  
Russian Orthodox Church ◽  
European Court ◽  
Grand Chamber ◽  
Pyrrhic Victory

The compulsory display of crucifixes in Italian public schools does not violate the European Convention on Human Rights. The victory before the Grand Chamber of the European Court of Human Rights in the Lautsi judgment of a variegated coalition of actors ranging from the strong alliance between the Vatican and the Italian Government to the Russia of the New Orthodoxy as well as to American Conservative Evangelicals, promises to change our understanding of church-state relationship in Europe and signals the emergence of a ‘new ecumenism’ in which the religious groups of different traditions work together toward common political goals. But was this judgment a real success for the Holy Alliance that successfully overturned the first Lautsi decision? I will argue that the March 2011 decision may result in a pyrrhic victory. The continuous reliance on State support to defend majority religious privileges may endanger, rather than benefit, religious vitality.

scholarly journals Ideological conflicts in Slovenia over religious issues

2014 ◽  
Vol 25 (2) ◽  
pp. 81-93
Author(s):  
Sergej Flere
Keyword(s):  
Human Rights ◽  
Public Schools ◽  
Catholic Church ◽  
Roman Catholic ◽  
Religious Communities ◽  
Roman Catholic Church ◽  
European Convention ◽  
Constitutional Court ◽  
Holy See ◽  
European Court

Since attaining independence, Latin pattern (Martin, 1978) disputes and conflicts have characterized the Slovenian political scene, particularly as to relations between the state and religious communities. Slovenia adopted a law on the issue only in 2006, availing itself of the law from the 1970s. The 2007 Religious Freedom Act contained many privileges for the dominant Roman Catholic Church, including those of a symbolic nature and those of an economic one. The Constitutional Court declared the Act unconstitutional and void, departing from the European Convention of Human Rights and the case law of the European Court of Human Rights. Thus, it set other beliefs at the same level with religious ones, did away with many privileges and obstacles 81 in recognition and registration of new religious communities. However, this decision has legislatively been implemented only in a small portion, remaining to be fully implemented. However, the absence of substantive agreements with the Holy See and the absence of religious instruction in public schools indicate a predominance of liberalism on the public scene.

scholarly journals Diritto di proprietà vs diritto alla vita? Una nuova questione dinanzi alla Corte europea dei diritti dell’uomo

2013 ◽  
Vol 62 (6) ◽  
Author(s):  
Carlo Casini ◽  
Marina Casini
Keyword(s):  
Stem Cells ◽  
Human Rights ◽  
Human Embryo ◽  
Adult Stem Cells ◽  
Embryonic Stem ◽  
European Convention ◽  
Human Embryos ◽  
Human Being ◽  
Italian Law ◽  
European Court

Il recente ricorso alla Corte europea dei diritti dell’uomo (n. n. 46470/11) nasce dalla pretesa di usare gli embrioni umani per la ricerca scientifica sul presupposto che si tratti di “cose”. Infatti, la ricorrente invoca il suo diritto di proprietà sugli embrioni appellandosi all’art. 1 del Protocollo n. 1 addizionale alla Convenzione Europea per la salvaguardia dei diritti e delle libertà fondamentali. L’attacco è diretto contro la legge italiana sulla procreazione medicalmente assistita (Legge 40 del 19 febbraio 2004) il cui art. 13/1 vieta “qualsiasi sperimentazione su ciascun embrione umano”. Gli Autori, ritengono che sia infondata scientificamente e giuridicamente la pretesa di considerare l’embrione umano una cosa; mostrano come il riconoscimento del il concepito soggetto titolare di diritti (art.1), sia supportato da un importante complesso normativo; contestano la pretesa contraddizione tra la Legge 40 del 2004 con la legge 194 del 1978; sostengono la ragionevolezza scientifica, etica e giuridica di orientare la scienza verso la ricerca sulle staminali adulte, anziché su quelle embrionali. L’indagine viene condotta passando in rassegna numerose disposizioni a partire dall’art. 18 della Convenzione di Oviedo. Ampio spazio è dato alla giurisprudenza della Corte europea dei diritti dell’uomo in materia di bioetica in relazione alla dottrina del margine di apprezzamento che dovrebbe essere applicata anche in senso favorevole all’Italia nel caso in esame. Il contributo auspica che i giudici tengano conto di quanto scritto nell’articolo 2 del Trattato di Oviedo che sotto il titolo “Primato dell’essere umano”, dichiara “l’interesse ed il bene dell’essere umano devono prevalere sul solo interesse della società e della scienza”. ---------- The recent appeal to the European Court of Human Rights (Application n. 46470/11) originates from the demand to use human embryos for scientific research on the ground that they are “things”. Indeed the appellant claims her right to property of the embryos pleading to the art. 1 of the Additional Protocol n. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The attack is directed against the Italian Law on medically assisted procreation (Law n. 40 of 19 February 2004) which bans any experimentation on human embryo. The Authors argue that the demanded evaluation of the human embryo as a “thing” is scientifically and legally baseless. They also show how the Italian Law n. 40/2004, which recognizes the embryo as a subject holder of rights (art.1), is backed by an important normative complex. In this article the thesis on the inconsistency between Law n. 40/2004 and Law n. 194/178 is rejected and it is claimed the scientific, ethical and legal reasonableness to lead the science to adult stem cells instead embryonic stem cells. The analysis is conducted reviewing numerous dispositions from art. 18 of the Oviedo Convention on Human Rights and Biomedicine. In this article a wide space is allowed to the Bioethics case-law of the European Court of Human Rights as for the doctrine of the margin of appreciation which should be applied also to defend Italy in the examined case. The article hope that the Court set great store by what is written in art. 2 (“Primacy of the Human Being”): “The interests and welfare of the human being shall prevail over the sole interest of society or science”.

scholarly journals Ernst-Wolfgang Böckenförde's Oeuvre on Religious Freedom Applied to Recent Decisions of the European Court of Human Rights

2018 ◽  
Vol 19 (2) ◽  
pp. 301-320 ◽  
Author(s):  
Ute Sacksofsky
Keyword(s):  
Human Rights ◽  
Public Schools ◽  
Religious Freedom ◽  
European Convention ◽  
Constitutional Courts ◽  
Minority Religions ◽  
Proper Role ◽  
European Court ◽  
Starting Point ◽  
Public Areas

In Europe, issues concerning religious freedom are hotly debated. Many courts had to consider cases concerning infringement of religious freedom. This Article will focus on three examples: Headscarves, burqas, and crucifixes. Often, the interests of members of minority religions have lost in European courts and European constitutional courts. This is particularly true considering the decisions of the European Court of Human Rights. The European Court of Human Rights upheld bans on headscarves for students in universities and public secondary schools, as well as for teachers in public schools. The Court also accepted bans on full-body veils worn in public areas. Finally, mandatory crucifixes in public schools have been deemed to conform to the standards set by the European Convention on Human Rights. In all of these cases, the European Court of Human Rights has not adequately construed religious freedom as a strong right.This is where the work of Ernst-Wolfgang Böckenförde comes in. Böckenförde has thoroughly discussed the proper role of religion in a democratic society. Coming from a theoretical starting point, he developed an understanding of religious freedom as a strong right. He also explained why State neutrality should be understood in terms of open neutrality. Both perspectives help to more fully explain the scope of religious freedom.

scholarly journals Conventional and constitutional regulations of lawful detention of a person without a court decision: criminal procedure aspect

2021 ◽  
pp. 16-25
Author(s):  
Аndrew Medvid
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decision ◽  
European Convention ◽  
Human Right ◽  
Procedure Code ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Article 5

The article compares the requirements for the lawful application of detention without a court decision as a criminal procedure established in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms and in the second sentence of Article 29 part 3 of the Constitution of Ukraine. In particular, the content of the concept of "detention" of a person is studied, the list of subjects who have the right to detain a person without a court decision and the legal content and list of legitimate grounds for detention of a person without a court decision as a criminal procedure are studied and compared. Conventional, constitutional and criminal-procedural norms are also studied, as well as the necessity of mandatory further judicial review of the legality of the detention of a person, including the terms of such review. Based on a detailed analysis of these provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitution of Ukraine, relevant decisions of the European Court of Human Rights and the Criminal Procedure Code of Ukraine, it is established that the grounds for the detention of a person by a general entity, defined by paragraph 2 of Article 207 of the Criminal Procedure Code of Ukraine, and a special entity, defined by subparagraphs 1 and 2 (except subparagraph 3) of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine, in general, correspond to the grounds for lawful detention of a person enshrined in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, it cannot be qualified as unlawful interference with the human right to liberty and security of person. At the same time, proposals are formulated to make changes and additions to subparagraph 3 of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine. It is also proved that the provisions of paragraph 2 of Article 12 and Articles 209 and 211 of the Criminal Procedure Code of Ukraine are critical provisions of the current legislation of Ukraine regarding the lawful application of detention of a person without a court decision. These provisions actually eliminate some shortcomings and establish the necessary legal and procedural grounds for the clarified application of the provision of the second sentence of part 3 of Article 29 of the Constitution of Ukraine, in accordance with the provisions of paragraph 3 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of their application developed by the European Court of Human Rights.

scholarly journals Note biogiuridiche sulla recente sentenza della CEDU su PMA, IVG e DGP

2012 ◽  
Vol 61 (5) ◽  
Author(s):  
Aldo Rocco Vitale
Keyword(s):  
Human Rights ◽  
Assisted Reproductive Technology ◽  
Preimplantation Genetic Diagnosis ◽  
Genetic Diagnosis ◽  
Reproductive Technology ◽  
European Convention ◽  
Italian Law ◽  
European Court ◽  
The Difference ◽  
The Right

L’articolo esamina la recente decisione della Corte Europea dei Diritti dell’Uomo che ha censurato la legge 40/2004 in tema di procreazione medicalmente assistita per il suo divieto di diagnosi genetica preimpianto. La Corte ha accusato di incoerenza l’ordinamento giuridico italiano perché esso vieta la diagnosi genetica preimpianto, ma ammette l’aborto terapeutico. Il contributo analizza brevemente il caso e la sentenza riguardante una coppia di portatori sani di fibrosi cistica che chiedeva l’accesso alle tecniche previste dalla legge 40/2004 lamentando la violazione del diritto alla vita privata e familiare e il divieto di discriminazione contemplati dagli art. 8 e 14 della Convenzione Europea per i Diritti dell’Uomo. Quindi si passa ad una critica etica, filosofica e giuridica del problema trattato, soffermandosi sulla differenza e sul rapporto tra la legge italiana sull’aborto e quella sulla procreazione medicalmente assistita, sulla diagnosi genetica preimpianto e sul rischio di eugenetica che essa porta con sé. ---------- The article examines the recent decision of the European Court of human rights which has censored the Italian law 40/2004 on assisted reproductive technology for its ban on preimplantation genetic diagnosis. The Court accused of inconsistency the Italian legal system because it prohibits preimplantation genetic diagnosis, but admits the therapeutic abortion. The contribution analyses briefly the case and the ruling concerning a pair of healthy carriers of cystic fibrosis that sought access to techniques foreseen by law 40/2004 complaining of the violation of the right to private and family life and the prohibition of discrimination covered by art. 8 and 14 of the European Convention on human rights. So we then move on to a philosophical, legal and ethics critique of the problem issued, dwelling on the difference and relationship between the Italian law on abortion and on assisted reproductive technology, on preimplantation genetic diagnosis and on the risk of eugenics that it brings.

The European Court of Human Rights Grand Chamber: Scoppola v. Italy (No. 3)

2013 ◽  
Vol 52 (1) ◽  
pp. 323-344
Author(s):  
Djurdja Lazic
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Civic Responsibility ◽  
The Rule Of Law ◽  
Italian Law ◽  
European Court ◽  
Margin Of Appreciation ◽  
Right To Vote ◽  
Grand Chamber ◽  
Italian Legislation

In Scoppola v. Italy (No. 3), the Grand Chamber of the European Court of Human Rights clarified its position on prisoner disenfranchisement under Article 3 of Protocol No. 1 of the European Convention on Human Rights (ECHR). The Grand Chamber upheld, by sixteen votes to one, the challenged Italian legislation as within the margin of appreciation granted to member states in determining the conditions under which the Article 3 of Protocol No. 1 right to vote is exercised. Following its precedent in Hirst v. United Kingdom (No. 2), the Grand Chamber ruled that the Italian law pursued the legitimate aim of preventing crime and enhancing civic responsibility and respect for the rule of law, and that the relevant measure was proportionate because it did not affect a group of people generally, automatically, and indiscriminately. Notably, the Grand Chamber differentiated Scopppola (No. 3) from Hirst (No. 2), stressing that the U.K. legislation challenged in the latter deprived all prisoners, regardless of the length of their sentences or the nature of their crimes, of their right to vote. Unlike Hirst (No. 2), the Grand Chamber noted, the Italian legislation adapted voting restrictions to the particular circumstances of each case.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Introductory Note

2018 ◽  
Author(s):  
Guido Raimondi
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Freedom Of Expression ◽  
European Convention ◽  
European Court ◽  
European Public ◽  
Introductory Note ◽  
Un Security Council ◽  
The Right ◽  
The Eu

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.

Council of Europe

2018 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Committee ◽  
European Court ◽  
Human Rights Treaties ◽  
Fundamental Freedoms ◽  
Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

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