The Lautsi Case: A Comment from Italy

2011 ◽  
Vol 6 (3) ◽  
pp. 221-230
Author(s):  
Fulvio Cortese
Keyword(s):  
Human Rights ◽  
National Narrative ◽  
The Public ◽  
Religious Symbols ◽  
European Court ◽  
Public Status

The Lautsi case sets a very significant precedent in terms of the public status of religious symbols. As such, it has already been commented upon, either in a favourable or very critical light. This article attempts to reconstruct the distinct stages of the Lautsi case and highlights the most debatable aspects of the European Court of Human Rights’ ruling, and the potential developments in Italian national law. The author finally suggests that, in Italy, from the perspective of sources of law, the ending of the internal and national ‘narrative’ on religious symbols is still completely open.

Crucifixes, Margin of Appreciation and Consensus: The Grand Chamber Ruling in Lautsi v Italy

2011 ◽  
Vol 13 (3) ◽  
pp. 287-297 ◽  
Author(s):  
Paolo Ronchi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Public Display ◽  
Double Standards ◽  
The Public ◽  
Religious Symbols ◽  
European Court ◽  
Margin Of Appreciation ◽  
Grand Chamber ◽  
Public Environment

In March 2011, the Grand Chamber of the European Court of Human Rights reversed the decision of the Court's Second Section in Lautsi v Italy. The case clearly demonstrates how controversial the use of religious symbols in the public environment has become. This article sets out the complicated framework of the case, assesses the judgment and concludes that the Grand Chamber's decision is unfortunate and, in many respects, objectionable. It will be shown that this decision has implications regarding the malleable nature of the doctrines of the margin of appreciation and consensus, as well as the development of Strasbourg's application of double standards in its case law regarding the public display of religious symbols.

Muslim Reformists, Female Citizenship, and the Public Accommodation of Islam in Liberal Democracy

2012 ◽  
Vol 5 (1) ◽  
pp. 2-35 ◽  
Author(s):  
Mohammad Fadel
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Islamic Law ◽  
European Convention ◽  
Political Equality ◽  
The Public ◽  
European Court ◽  
Margin Of Appreciation ◽  
Gender Hierarchy ◽  
Normative Justification

AbstractThe European Court of Human Rights (ECHR), in a trilogy of cases involving Muslim claimants, has granted state parties to the European Convention on Human Rights a wide margin of appreciation with respect to the regulation of public manifestations of Islam. The ECHR has justified its decisions in these cases on the grounds that Islamic symbols, such as the ḥijāb, or Muslim commitments to the shari‘a — Islamic law — are inconsistent with the democratic order of Europe. This article raises the question of what kinds of commitments to gender equality and democratic decision-making are sufficient for a democratic order, and whether modernist Islamic teachings manifest a satisfactory normative commitment in this regard. It uses the arguments of two modern Muslim reformist scholars — Yūsuf al-Qaraḍāwī and ‘Abd al-Ḥalīm Abū Shuqqa — as evidence to argue that if the relevant degree of commitment to gender equality is understood from the perspective of political rather than comprehensive liberalism, doctrines such as those elaborated by these two religious scholars evidence sufficient commitment to the value of political equality between men and women. This makes less plausible the ECHR's arguments justifying a different treatment of Muslims on account of alleged Islamic commitments to gender hierarchy. It also argues that in light of Muslim modernist conceptions of the shari‘a, there is no normative justification to conclude that faithfulness to the shari‘a entails a categorical rejection of democracy as the ECHR suggested.

Proselytism and Ostentation: a Critical Discourse Analysis of the European Court of Human Rights’ Case Law on Religious Symbols

2021 ◽  
Vol 14 (1-2) ◽  
pp. 162-188
Author(s):  
Giulia Evolvi ◽  
Mauro Gatti
Keyword(s):  
Human Rights ◽  
Discourse Analysis ◽  
Critical Discourse Analysis ◽  
Case Law ◽  
Critical Discourse ◽  
Religious Symbols ◽  
European Court ◽  
Over Time

Abstract This article focuses on the European Court of Human Rights’ (ECtHR) case law about religious symbols (N=27) from 2001 to 2018, exploring the following questions: What discourses does the ECtHR employ in cases about religious symbols? How do ECtHR’s discourses about religious symbols evolve in time? The data is innovatively analyzed through critical discourse analysis and leads to two findings: first, the ECtHR tends to endorse ‘Christian secularism,’ considering Christian symbols as compatible with secularism but not Muslim symbols; second, ECtHR discourses occasionally become more favorable to Muslim applicants over time, but the evolution of case law is not linear.

scholarly journals The right to peaceful enjoyment of property and the security measure of the forfeiture of cash in the jurisprudence of the Serbian Constitutional Court: Certain uncertainty

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Public Interest ◽  
Cash Transfer ◽  
Constitutional Court ◽  
The Public ◽  
Cross Border ◽  
Security Measure ◽  
European Court ◽  
The Right

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.

The Electronic Surveillance of Public Assemblies

2011 ◽  
pp. 59-68 ◽  
Author(s):  
Haralambos Anthopoulos
Keyword(s):  
Human Rights ◽  
Data Protection ◽  
Electronic Surveillance ◽  
Combined Analysis ◽  
The Public ◽  
European Court ◽  
Political Views ◽  
Protection Legislation ◽  
The Right ◽  
Shed Light

The electronic surveillance of public assemblies has been an issue highly debated in the Greek public arena. The circumstances that brought this internationally contested topic in the public focus were the parliamentary introduction of Law 3625/2007 in Greece and the legislative enactment of an exemption from the data protection legislation for all police activities involving data processing during public assemblies. This paper will argue that the electronic surveillance of public assemblies affects both the privacy of political views (political privacy) and the activism (public anonymity) of a citizen. Along this line, the paper offers a combined analysis of the right to data protection [Art. 9A] and the right to free assembly [Art. 11] as acknowledged in the Greek Constitution (1975/86/01/08). As underlined, both rights constitute the basis for the protection of political privacy and public anonymity and preclude any legislatively posed limitations to their enjoyment. In the end, three key cases of the European Court of Human Rights shed light to the legitimacy of such a ‘panoptic’ surveillance of public assemblies.

scholarly journals A law-and-community approach to compensation for takings of property under the European Convention on Human Rights

Legal Studies ◽  
2019 ◽  
Vol 39 (3) ◽  
pp. 398-414
Author(s):  
Ting Xu
Keyword(s):  
Human Rights ◽  
Social Relations ◽  
Social Life ◽  
Market Value ◽  
Private Life ◽  
European Convention ◽  
The Public ◽  
The Best Approximation ◽  
Community Approach ◽  
European Court

AbstractStudies of takings of property highlight the increasing penetration of state power into private life. Controversies regularly surround compensation provisions. Many academic analyses and decisions of the European Court of Human Rights have supported the proposition that market value offers the best approximation of just compensation. However, full market value compensation may not be guaranteed if the taking of property fulfils certain legitimate objectives of the ‘public interest’. To unpack the complexity surrounding compensation provisions under the European Convention on Human Rights, this paper adopts and develops a ‘law-and-community’ approach – an important dimension, not previously investigated in the study of takings of property – which sees ‘community’ as networks of social relations, and views law as not only grounded in community but also existing to regulate communal networks. This paper then identifies the limits of both Art 1, Protocol 1 of the ECHR and the current approaches to compensation in the light of this law-and-community approach. In so doing, the paper makes a distinctive contribution by offering a new socio-legal interpretation of controversies surrounding compensation for takings of property beyond the private/public divide and by proposing an alternative framework of engaging law and regulation in wider social life.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

Risk Reduction and Redemption: An Interpretive Account of the Right to Rehabilitation in the Jurisprudence of the European Court of Human Rights

2020 ◽  
Author(s):  
Ailbhe O’Loughlin
Keyword(s):  
Risk Factors ◽  
Human Rights ◽  
Risk Reduction ◽  
Conceptual Frameworks ◽  
The Public ◽  
European Court ◽  
The Right

Abstract This article exposes the disjunction between the progressive rhetoric of the European Court of Human Rights (ECtHR) on rehabilitation and the reality for life-sentenced prisoners. It illuminates the tensions between the Court’s jurisprudence on the prisoner’s right to rehabilitation and a nebulous ‘right to security’ of the public that threatens to undermine prisoners’ rights. It is argued that two distinct conceptual frameworks for understanding rehabilitation for life-sentenced prisoners underpin the ECtHR’s jurisprudence: rehabilitation as risk reduction and rehabilitation as redemption. The first is shaped by a preoccupation with identifying and reducing risk factors for offending. The second reflects the idea that offending indicates bad character but that people can atone for their crimes by working hard to change themselves. The article concludes that the ECtHR, by placing the onus on life-sentenced prisoners to demonstrate they have achieved rehabilitation, risks entrenching the trends of popular punitiveness and precautionary penal warehousing that it has sought to oppose.

scholarly journals Religious Symbols and State Regulation

2017 ◽  
Vol 12 (2-3) ◽  
pp. 128-141
Author(s):  
Dominic McGoldrick
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
State Regulation ◽  
Reasonable Accommodation ◽  
International Courts ◽  
Religious Symbols ◽  
European Court

Abstract Religious symbols are historically significant and socially powerful. They have many forms and functions. Their legal regulation presents difficult challenges for courts, particularly international courts. This article examines how the European Court of Human Rights has approached the regulation of the regulation of religious symbols by national jurisdictions. It submits that the fundamental touchstone of the Court’s jurisprudence lies in its approach to secularism. It has accepted secularism as consistent with the values underpinning the Convention. This is a strategic and sensible approach. There are limits imposed by the prohibitions on discrimination and indoctrination. Beyond secularism there have been tentative steps towards a balancing / reasonable accommodation approach but the Court appreciates that the balances are difficult ones on which reasonable people, and even reasonable states, may legitimately disagree.

Sign in / Sign up

Export Citation Format

Share Document