Case Law of the European Court on Human Rights Concerning Ethnic, Religious and Linguistic Minorities during 2014: About Differential Margins of Appreciation and the Role of the Prohibition of Discrimination

2016 ◽  
Vol 13 (1) ◽  
pp. 248-282
Author(s):  
Kristin Henrard
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Linguistic Minorities ◽  
Way Of Life ◽  
Wide Margin ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
State Obligations

The Court’s case law regarding ethnic, religious and linguistic minorities during 2014 reveals that in several respects it leaves (de facto) less margin of appreciation to states, focusing on the effective protection of minorities’ fundamental rights. In other respects, the Court seemingly prefers to not take a clear stance, and rather grants states a wide margin of appreciation. Overall, the Court is adamant about state obligations to tolerate ethnic and religious minorities and to protect them against private violence. Positive state obligations to accommodate minorities and their special needs and special “way of life” appear still too controversial and devoid of European consensus for the Court to take a stance. Nevertheless, the developments pertaining to the Court’s scrutiny of models of state–church relations demonstrate that the “lack of European consensus” is subject to a relative and evolutive assessment.

CURRENT DEVELOPMENTS: IV. CITIZENSHIP AND HUMAN RIGHTS

2004 ◽  
Vol 53 (2) ◽  
pp. 493-501 ◽  
Author(s):  
Erika Szyszczak
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Court Of Justice ◽  
European Court ◽  
Charter Of Fundamental Rights ◽  
International Obligations ◽  
Court Of First Instance

Citizenship and human rights continue to play an important role in the evolution of Community law. Both sets of principles have appeared in the case law of the European Courts and in the creation of a Constitutional document for Europe. Part II of the draft Constitution incorporates the Charter of Fundamental Rights of the Union. Additionally, the first report from the independent network of experts in fundamental human rights details the various international human rights obligations which the Member States are subject to, analysing Member State policy in a number of areas in the light of the international obligations.1Paradoxically, at a time when greater emphasis is being paid to the constitutional recognition of human rights there are indications of divisions between some of the Advocates General, the Court of First Instance and the European Court of Justice (the Court) on the constitutional role of fundamental rights in relation to access to justice.

scholarly journals Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

2021 ◽  
Vol 33 (2) ◽  
pp. 7-21
Author(s):  
Natalia Banach ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
Fundamental Rights ◽  
Moral Norms ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

scholarly journals Challenges Related to the Increase of Religious Diversity in the Light of the Judicial Decisions of the European Court of Human Rights

2021 ◽  
Vol 9 (2) ◽  
pp. 125-139
Author(s):  
Michał Hucał
Keyword(s):  
Religious Diversity ◽  
Case Law ◽  
Public Security ◽  
Public Places ◽  
Judicial Decisions ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
Key Concepts

European states responded in different ways to tensions related to the increase in religious diversity, and the restrictions introduced were considered appropriate when they resulted from public security and the need to protect others, especially if the state presented a credible justification. On this occasion, the case-law of the ECHR developed two key concepts for the determination of the presence of religious symbols in public places: a powerful external symbol and an essentially passive symbol. An important achievement of the Tribunal is also the introduction of the concept of “improper proselytism.” Certainly, a further increase in religious diversity in Europe may lead to new areas of controversy, which will then be assessed by the ECHR. However, the existing instruments used by the Court, such as the idea of the Convention as a living document, the theory of the margin of appreciation or the analysis of the existence of the European consensus, enable it to develop its interpretation in this regard.

Prohibitions against Religious Clothing and Symbols in Public Schools and Universities: Narrowing the Scope by Introducing the Principle of Equal Treatment of Religious Manifestations

2015 ◽  
Vol 10 (2) ◽  
pp. 160-190
Author(s):  
Vibeke Blaker Strand
Keyword(s):  
Public Schools ◽  
Case Law ◽  
Equal Treatment ◽  
Educational Institutions ◽  
Member States ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation ◽  
Relevant Case ◽  
Religious Clothing

The reasoning and conclusions reached by the European Court of Human Rights in cases against some Member States that involve prohibitions against the wearing of religious clothes and symbols in public educational institutions have led scholars to argue that introduction of similar prohibitions in other Member States will be in conformity with the Convention. By broadening the spectrum of relevant case-law, this article will argue that the wide margin of appreciation often referred to, conceals that the strictness of review may vary considerably depending on the circumstances of each case. The principle of equal treatment of religious manifestations is introduced as a norm that influences the strictness of review. Further, it is discussed to what extent the aim of preserving gender equality and the aim of avoiding religious pressure may be put forward in order to justify the introduction of prohibitions.

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.

3 Convention Law and Basic Doctrine

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Theoretical Models ◽  
Case Law ◽  
Stare Decisis ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
German Constitutional Law

This chapter examines the basic doctrine of the European Court of Human Rights (ECtHR). ‘Doctrine’ is a word the Court would rather avoid. The Court has preferred to develop ‘formula’ as a basis for discussing all relevant issues, formula which are repeated again and again, developed further in manifold scenarios, used as argumentation patterns, allowing to arrive at differentiated solutions, formula often linked to specific cases for which they were originally invented. With about 20,000 judgments, the case-law is rich and all-embracing and gives a lot of illustrative examples of how to understand these formula. What is called ‘basic doctrine’ is therefore something very specific. It cannot be compared to stare decisis in the British tradition or theoretical models in German constitutional law. Originating from a conglomerate of different legal cultures, the ECtHR has developed not only its own style, but also its own jurisprudential approach. If there is a ‘doctrine’, it denies being one. Yet, the non-doctrinal doctrine is very influential and has created notions such as ‘margin of appreciation’ and ‘European consensus’ which convey a certain message of the Court's mission and are widely discussed and disputed.

scholarly journals The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition

2019 ◽  
Vol 37 (1) ◽  
pp. 14-35 ◽  
Author(s):  
Pieter Cannoot
Keyword(s):  
Human Rights ◽  
Gender Identity ◽  
Case Law ◽  
Self Determination ◽  
Sex Reassignment Surgery ◽  
Gender Recognition ◽  
Sex Reassignment ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation

The European Court of Human Rights is the human rights monitoring body that has dealt with the largest number of cases related to gender identity and trans* persons. In this regard, it has recognised under Article 8 ECHR both a right to gender self-determination and a positive obligation for the State to adopt a procedure for legal gender recognition. However, Contracting States were given a wide margin of appreciation to set conditions for the legal recognition of a person’s actual gender identity, leading to the acceptance by the Strasbourg Court of pathologising requirements such as a diagnosis of gender dysphoria and compulsory sex reassignment surgery. This contribution analyses and conceptually explains this message of trans* pathologisation in the ECtHR’s case law. Subsequently, on a normative level, it argues that this case law cannot be upheld taking into account the international trend towards full trans* depathologisation, and the scope of the margin of appreciation that States (ought to) have in cases concerning gender identity.

The Echr Implications of the Investigation Provisions of the Draft Competition Regulation

2002 ◽  
Vol 51 (1) ◽  
pp. 55-89 ◽  
Author(s):  
Alan Riley
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
Notification System ◽  
National Courts ◽  
European Court ◽  
Council Regulation ◽  
Draft Regulation

In September 2000 the European Commission published its long-awaited proposed replacement for Regulation 17, the Proposal for a Council Regulation on the Implementation of the Rules on Competition laid down in Articles 81 and 82 of the Treaty (hereafter the draft regulation).1 The debate on the draft regulation has focused on the abolition of the notification system, the role of the national courts, and the role of the national competition authorities (hereafter the NCAs). However, there is one significant overlooked issue, namely the extent to which the investigation provisions of the draft regulation comply with the case law of the European Court of Human Rights (hereafter ECtHR).2 Given the paucity of the ECtHR's case law in 1961 it is understandable that the implications of the European Convention of Human Rights (hereafter ECHR) for the investigative provisions of what was to become Regulation 17 were not at that time given any great consideration by the European Parliament and the Council of Ministers. However, there is now an extensive human rights case law, developed by the Strasbourg authorities which, it is argued, casts a major shadow over the Commission's existing and proposed investigative powers. It is further argued that the case law of the European Court of Justice (hereafter ECJ) and the Court of First Instance (hereafter CFI) in respect of fundamental rights as general principles of law, does not provide an equivalent standard of protection to that offered by the ECtHR.

scholarly journals The scope of the margin of appreciation in the jurisprudence of the European Court of Human Rights

2021 ◽  
Author(s):  
K. O. Trykhlib
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
European Consensus ◽  
European Court ◽  
Margin Of Appreciation ◽  
Protection Of Human Rights ◽  
The Individual ◽  
Restrictive Measures ◽  
Discretionary Powers

The article analyzes the essence and features of the application of the doctrine of margin of appreciation in the jurisprudence of the European Court of Human Rights. It has been established that the margin of appreciation can be wide or narrow. The factors influencing the scope of the state’s margin of appreciation while effectively ensuring and protecting the rights guaranteed by the European Convention on Human Rights have been identified and examined. The core criteria and principles of law, which are applied and developed in its case-law by the European Court of Human Rights when granting a certain scope of discretionary powers, have been studied. It is concluded that the key task of the European Court of Human Rights is to exercise effective review over the ensuring and protection of human rights and freedoms enshrined by the European Convention on Human Rights. When defining and granting the margin of appreciation, the European Court of Human Rights is guided by the principles of subsidiarity and proportionality. The scope of the state’s discretion always depends on the circumstances of each particular case, the type and specifics of the violated and/or limited right, its significance for the individual, the characteristics of competing interests, the background and context of the interference, the presence or absence of the European consensus on the issue at stake, the purpose of the interference, the degree of its intensity and the duration, the nature of restrictive measures and their results, as well as the proportionality of the restriction of human rights and freedoms.

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