Islamophobia and the ECtHRA Test Case for Positive Subsidiarity for the Protection of Europe’s Long-term Migrants?

2021 ◽  
pp. 196-216
Author(s):  
Eva Brems
Keyword(s):  
Human Rights ◽  
Best Practice ◽  
Case Law ◽  
Test Case ◽  
European Court ◽  
Margin Of Appreciation ◽  
Minority Religion ◽  
The Face

A reflection on the human rights of migrants in Europe cannot avoid the issue of racism. Resistance to immigration in Europe is fuelled to a large extent by resistance to the ‘otherness’ of migrants. More specifically, the ‘otherness’ that is most central to today’s debates on migration and integration in Europe is Islam. Thus, racism is commonly expressed as Islamophobia, and Islamophobia is both expressed in, and fuelled by, rights-restrictive rules that specifically target Islamic practices. The focus of the analysis in this chapter is on the messages the European Court of Human Rights (ECtHR) is sending to national authorities regarding their approaches to multicultural conflicts over Islamic minority practices. This is situated in the framework of ‘positive subsidiarity’. It is argued that, even when the margin of appreciation is a wide one, the Court has a responsibility to offer guidance to states parties on three levels: substantive, procedural, and discursive. The chapter then explores the messages sent by the Court to states parties in the field of the restriction of Islamic minority practices. First it does so by comparing what is widely considered the Court’s ‘worst practice’ in this field—the face veil cases—with its ‘best practice’ in a different, but comparable field—the ‘gay propaganda’ cases. After that, the chapter continues the analysis on the basis of a broader case law corpus that includes all cases regarding the accommodation of Islamic practice in countries in which Islam is a minority religion.

scholarly journals All You Need Is Time? Discrepancies between the European Court of Human Rights Case Law and Liberal Normative Theory on Long-Term Migrants

2017 ◽  
Vol 50 (3) ◽  
pp. 447-497
Author(s):  
Başak Çalı
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Case Law ◽  
Normative Theory ◽  
Test Case ◽  
European Court ◽  
The Veil ◽  
The Right ◽  
Normative Value

This article, departing from Gila Stopler's ‘Rights in Immigration: The Veil as a Test Case’, published in theIsraeli Law Reviewin 2010, reviews how the time spent by a long-term migrant, irrespective of legal status, normatively figures in liberal theories of migration and in the case law of the European Court of Human Rights (ECtHR). The article detects that in contemporary liberal theories, assigning an independent normative value to time spent by the migrant in the receiving country is a key move in balancing the competing interests of migrants and of the migrant-receiving country, where the right of the country to regulate migration is taken as given: the longer a migrant is present in a country, the stronger her interests become in receiving citizenship status or treatment akin to citizens. The article then surveys the case law of the ECtHR relating to long-term migrants. It finds that time is often one of multiple normative considerations in the balancing exercise, in conjunction with whether a migrant has achieved social integration in the migrant-receiving country and whether the right of the receiving community to regulate migration for reasons of affording citizenship, national security or distributive justice is paramount. The article argues that the lack of an independent normative weight afforded to time in the case law of the ECtHR is not merely a tension between the translation of liberal normative theory to legal policy. It also shows a deeper tension in liberal theories of migration between national liberalism and cosmopolitan liberalism.

The European Court of Human Rights and Removal of Long-term Migrants

2021 ◽  
pp. 159-174
Author(s):  
Başak Çalı ◽  
Stewart Cunningham
Keyword(s):  
Human Rights ◽  
Migration Policy ◽  
Case Law ◽  
Unique Position ◽  
European Court ◽  
Domestic Courts ◽  
Central Argument ◽  
The Right ◽  
Dual Commitment

This chapter analyses the general interpretative outlook of the European Court of Human Rights (ECtHR) on the rights of long-term migrants facing deportation. It shows that this outlook is strongly marked by recognising the primacy of state discretion in the field of migration policy, while at the same time ensuring that long-term migrants are given access to the protection of the Convention. The chapter then surveys the case law of the ECtHR related to the deportation of long-term migrants, identifying the factors that the Court employs in balancing its dual commitment to states and long-term migrants. The central argument of the chapter is that the Court’s approach to the right to stay of long-term migrants falls short of adequately recognising the unique position of long-term migrants and is unable to differentiate between those who have lived for lengthy periods in host states and any other category of alien in those states. The Court’s recent emphasis on principled deference to domestic courts in balancing the rights of long-term migrants and host states further undercuts any future progressive developments in the field of right to stay for long-term migrants.

Introduction

2020 ◽  
pp. 1-10
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
Juvenile Justice ◽  
Family Law ◽  
Case Law ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
Margin Of Appreciation ◽  
Growing Body ◽  
International Instruments

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.

Limitations on Freedom of Religion and Belief in the Jurisprudence of the European Court of Human Rights in the Quarter Century since Its Judgment in Kokkinakis v. Greece

2017 ◽  
Vol 12 (2-3) ◽  
pp. 174-197
Author(s):  
Mark Hill ◽  
Katherine Barnes
Keyword(s):  
Human Rights ◽  
Religious Beliefs ◽  
Case Law ◽  
Democratic Society ◽  
European Convention ◽  
Freedom Of Religion ◽  
Public Order ◽  
Quarter Century ◽  
European Court ◽  
Margin Of Appreciation

Abstract The manifestation of religious beliefs under Article 9 the European Convention on Human Rights is not absolute but may be subject to prescribed limitations. This article discusses the nature and extent of those limitations, as interpreted in the case law of the European Court of Human Rights from its decision in Kokkinakis v. Greece up to the present. It contrasts the prescriptive text of the Article with its lose and inconsistent interpretation by the Court in Strasbourg. Particular attention is given to the criteria of “prescribed by law”, “necessary in a democratic society”, “public safety”, “public order, health or morals” and “the rights and freedoms of others”. It seeks to divine principles from the varied jurisprudence, particularly at its intersection with the Court’s illusory doctrine of margin of appreciation.

Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?

2012 ◽  
Vol 14 ◽  
pp. 381-418 ◽  
Author(s):  
Dean Spielmann
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Margin Of Appreciation ◽  
Essential Question ◽  
Domestic Courts ◽  
The Right ◽  
Domestic Law

AbstractThe doctrine of the national margin of appreciation is well established in the case law of the European Court of Human Rights. In applying this essentially judge-made doctrine, the Court imposes self-restraint on its power of review, accepting that domestic authorities are best placed to settle a dispute. The areas in which the doctrine has most often been applied will be presented here, looking at various examples from case law. After a brief overview of the doctrine’s origin, the analysis will focus on the situations in which the margin has been allowed or denied. Does it relate merely to factual and domestic-law aspects of a case? What is the scope of the margin of appreciation when it comes to interpreting provisions of the European Convention on Human Rights? What impact does an interference (whether disproportionate or not) with a guaranteed right have on the margin allowed? Is there a second-degree or ‘reverse’ margin of appreciation, whereby discretionary powers can be distributed between executive and judicial authorities at domestic level? Lastly it is noteworthy that Protocol No 14, now ratified by all Council of Europe Member States, enshrines in Article 12—at least to some extent—an obligation to apply a margin of appreciation. One essential question remains: by allowing any margin of a certain width, is the European Court simply waiving its power of review or is it attributing responsibility to the domestic courts in the interest of a healthy subsidiarity?

scholarly journals The Qualified Right to Freedom of Religion: An examination of the limitations contained in Article 9 of the European Convention on Human Rights

2020 ◽  
Vol 23 ◽  
pp. 73-99
Author(s):  
Mark Hill
Keyword(s):  
Human Rights ◽  
Religious Beliefs ◽  
Case Law ◽  
Democratic Society ◽  
European Convention ◽  
Freedom Of Religion ◽  
Public Order ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation

The manifestation of religious beliefs under Article 9 of the European Convention on Human Rights is not absolute but may be subject to prescribed limitations. This article discusses the nature and extent of those limitations, as interpreted in the case law of the European Court of Human Rights from its decision in Kokkinakis v. Greece up to the present. It contrasts the prescriptive text of the Article with its loose and inconsistent interpretation by the Court in Strasbourg. Particular attention is given to the criteria of ‘prescribed by law’, ‘necessary in a democratic society’, ‘public safety’, ‘public order, health or morals’ and ‘the rights and freedoms of others’. This article seeks to extract clear principles from the contradictory and confusing jurisprudence, particularly at its intersection with the Court’s illusory doctrine of margin of appreciation.

scholarly journals papel del artículo 8 CEDH en la construcción del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado

2020 ◽  
Author(s):  
Lara Redondo Saceda
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Derechos Humanos ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Right

El artículo 8 del Convenio Europeo de Derechos Humanos –que protege los derechos al respeto la vida privada y familiar, el domicilio y la correspondencia– se ha configurado en estos setenta años de Convenio como uno de los escenarios habituales del desarrollo del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado. Esto parece justificarse en el contenido y estructura de este artículo y en las restricciones y limitaciones al ejercicio de estos derechos establecidas por su párrafo segundo. En este marco, el objetivo de este artículo es analizar cuál ha sido el papel del artículo 8 CEDH en el desarrollo de estos estándares interpretativos y cómo ha influido en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Article 8 of the European Convention on Human Rights –which protects the right to respect for private and family life, home and correspondence– has been configured as a traditional place for the development of the margin of appreciation and the doctrine of State’s positive obligations. The scope and structure of this article and its limitation clause in the second paragraph seem to justify these developments. In this context, the objective of this article is to analyse the role of Article 8 ECHR in the development of these interpretative standards and its influence in the European Court of Human Rights case-law.

scholarly journals Podstawowe trendy orzecznictwa Europejskiego Trybunału Praw Człowieka w sprawach podatkowych

2020 ◽  
pp. 9-32
Author(s):  
Tadeusz Jasudowicz
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
Three Dimensions ◽  
Criminal Proceedings ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation ◽  
Criminal Charge ◽  
Raison D’État

The case-law of the European Court of Human Rights in tax matters has developed in three dimensions. Firstly, it involved Article 1 of the Protocol No. 1 to the Convention with reference to “the payment of taxes”, viewed, notwithstanding the State’s wide margin of appreciation, in the light of the principle of the peaceful enjoyment of one’s possessions. Secondly, from the perspective of Article 6 paragraph 1 of the Convention, tax disputes can be covered by the guarantees of a fair trial where the proceedings and sanctions, for example, concerning tax surcharges, are qualified in their autonomous Convention meaning as a “criminal charge” against the taxpayer. Moreover, despite its traditional case-law, in the last years the Court has seemed to allow the possibility of qualifying tax disputes as concerning “civilrights and obligations” Thirdly, on the basis of Article 4 of Protocol No. 7 to the Convention, the Court has found violations of the prohibition “to be tried or punished again in criminal proceedings” in the context of dual, i.e. tax (administrative) and penal, proceedings. The author critically assesses the Court judgment in the case of A. and B. v. Norway, in which the Court did not find a violation of Article 4 of Protocol No. 7. In the Norwegian case, the distinct administrative and penal proceedings were in fact merged, since the state introduced a system of integrated legal answers to taxpayers’ behavior. According to Judge Pinto de Albuquerque, expressing a dissenting opinion, the Court in this judgment wrongly changed its stance from pro persona to pro auctoritate, possibly forgetting that it is a court of humanrights, and not a pleader of raison d’Etat. Although the Court declared that it considers the Convention “as a whole”, and seeks to ensure the consistency of the Convention system and harmony of its provisions, it might have lost sight of ties existing between them. Taxpayers are also individual humansand have a title to human rights, thus tax disputes are those of a human rights nature. Understandably, the ECHR must persist as a Court of Human Rights.

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