scholarly journals Wearing religious symbols at work in the ECtHR’s judgments

2021 ◽  
pp. 99-126
Author(s):  
Piotr Sadowski
Keyword(s):  
Human Rights ◽  
Freedom Of Speech ◽  
Dress Code ◽  
Wide Margin ◽  
Hospital Employees ◽  
Religious Symbols ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation ◽  
State Liability

Freedom of speech and freedom of conscience and religion are essential human rights which are protected, among others, by the ECHR. The number of the European Court of Human Rights’ decisions on wearing religious symbols (in a form of a Christian cross, a Muslim veil or a headscarf) at work remains small. Nevertheless, some interpretation guidelines can be identified in particular on how to ensure that an interference with Article 9 of the 1950 Convention has to be proportionate and “necessary in a democratic society”. Owing to a lack of European-wide consensus on states’ approach to religion, a state exercises a wide margin of appreciation. Nevertheless, a state always has to take into account rights of the others, in particular those who are dependent on (e.g. patience at hospital) employees or are prone to an impact of employees (e.g. pupils and students). Thus, dress codes confirming a secular nature and religious neutrality of a State not always violates Article 9 of the ECHR. Rules apply mainly to public bodies, but a state liability may also be found to private company’s cases. Details of each employment contract and of the employee’s conduct have to be always analysed. The dress code rules applied to man and women and irrespective to their religion, so the Court has not declared it to be discriminatory because of sex or religion of employees.

Positive subsidiarity and its implications for the margin of appreciation doctrine

2019 ◽  
Vol 37 (3) ◽  
pp. 210-227 ◽  
Author(s):  
Eva Brems
Keyword(s):  
Human Rights ◽  
Political Debate ◽  
First Line ◽  
Wide Margin ◽  
Positive Dimension ◽  
European Court ◽  
Margin Of Appreciation

The article presents an argument in favour of a richer theory of subsidiarity in the European Court of Human Rights context. In particular, the proposal is to include what is called a ‘positive’ dimension in subsidiarity thinking. That is to say, the article argues that the scholarly and political debate on ECHR subsidiarity has focused mostly on ECHR restraint, associated with a wide margin of appreciation for the States Parties. There is however a complementary dimension in the subsidiarity layout, which concerns the responsibility of national authorities to offer first-line protection of Convention rights. The article examines the role the European Court of Human Rights can play in facilitating that first-line responsibility. The article explores what this means for the margin of appreciation of national authorities.

scholarly journals Religious Freedom and the European Court of Human Rights’ Two Margins of Appreciation

2017 ◽  
Vol 12 (2-3) ◽  
pp. 198-209
Author(s):  
Stephanie E. Berry
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
The State ◽  
Complete Picture ◽  
European Convention ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation ◽  
Religious Clothing

Abstract The European Court of Human Rights’ (ECtHR) use of the margin of appreciation (MoA) in cases concerning religious clothing is well-documented. This article paints a more complete picture of the use of the doctrine in cases falling within Article 9 and Article 2, Protocol 1 of the European Convention on Human Rights (echr). The ECtHR’s use of the normative MoA often appears to be superfluous as it does not seem to extend past the Article 9(2) echr, limitations clause. In contrast, the systemic MoA allows almost complete deference to the State, which has the potential to undermine the religious freedom of minorities.

Subsidiarity Post-Brighton: Procedural Rationality as Answer?

2016 ◽  
Vol 30 (1) ◽  
pp. 5-23 ◽  
Author(s):  
PATRICIA POPELIER ◽  
CATHERINE VAN DE HEYNING
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Procedural Rationality ◽  
Wide Margin ◽  
High Profile ◽  
The United Kingdom ◽  
European Court ◽  
Margin Of Appreciation ◽  
Protection Of Human Rights

AbstractDuring the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.

School Bans on the Wearing of Religious Symbols: Examining the Implications of Recent Case Law from the UK

2009 ◽  
Vol 4 (1) ◽  
pp. 7-24 ◽  
Author(s):  
Erica Howard
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Religious Symbols ◽  
Article 9 ◽  
European Court ◽  
Religious Clothing ◽  
Religious Dress ◽  
The Uk ◽  
The Right

AbstractThis article examines school bans on the wearing of religious symbols and starts with a discussion of the arguments for the imposition of a ban and the counter arguments against these. The question whether a ban on the wearing of religious clothing in schools is a violation of the right to manifest one's religion as guaranteed by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is analyzed using the case law of the European Court of Human Rights and of the English courts in relation to such bans in education. The cases appear to suggest that such bans can be considered an interference with the right to manifest one's religion under Article 9(1), but that these bans can be justified under Article 9(2) in certain circumstances. Two important considerations in the decision of the courts are the way decisions to ban certain forms of religious dress are made and whether alternative ways of manifesting the religion are available.

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 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.

scholarly journals What If? An Experiment to Include a Religious Narrative in the Approach of the European Court of Human Rights

2019 ◽  
Vol 7 (2) ◽  
pp. 213-241
Author(s):  
Anicée Van Engeland
Keyword(s):  
Human Rights ◽  
Public Affairs ◽  
Wide Margin ◽  
The Public ◽  
European Court ◽  
Margin Of Appreciation ◽  
Living Together ◽  
The Veil ◽  
The Public Sphere ◽  
And Gender

According to some interpretations of Islam supported by gender activists, the veil can be perceived as a passport that enables women to participate in public affairs. This argument has been overlooked by the courts, including the European Court of Human Rights. The latter has adopted a discourse that considers the veil to be a threat to public order and gender equality, and more recently, an obstacle to social cohesion. By doing so, the Court has excluded veiled European Muslim women from the public sphere. The Court has justified curbing freedom of religion by granting states a wide margin of appreciation on the basis of the concept of “living together.” I argue that the Court needs to take the “passport veil” into account to be consistent with its argument on living together. A shift of approach and discourse would constitute a new way of understanding integration through the veil.

scholarly journals In-between the Constitution and the European Court of Human Rights: Mobilizations Around Religion and Education in Greece

2018 ◽  
Vol 12 (S1) ◽  
pp. S31-S54
Author(s):  
Margarita Markoviti
Keyword(s):  
Human Rights ◽  
Discourse Analysis ◽  
Religious Education ◽  
Empirical Research ◽  
Case Law ◽  
Specific Field ◽  
Religious Symbols ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Impact

AbstractThis paper examines the impact of European Court of Human Rights (ECtHR) decisions on the field of religion and education in Greece around the issues of the content and objectives of religious education, the exemption thereof, and religious symbols in school. The findings indicate that despite the relevance of ECtHR case law with the specific field in Greece, the Court's role in influencing such national debates is minimal. Drawing on empirical research and discourse analysis, the paper argues that this is due to the doctrine of the margin of appreciation, apparently linked to strategic references to and varying interpretations of the Court's judgments; the unwillingness of actors to litigate in a potentially sensitive, lengthy, and costly procedure; and to a shared belief in the perceived primacy of constitutional provisions on religion and education that precludes the formation of structured mobilizations.

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.

scholarly journals Extraterritorial Laws for Cross-Border Reproductive Care: The Issue of Legal Diversity

2012 ◽  
Vol 19 (2) ◽  
pp. 187-200 ◽  
Author(s):  
Wannes Van Hoof ◽  
Guido Pennings
Keyword(s):  
Human Rights ◽  
Assisted Reproduction ◽  
European Convention ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation ◽  
Grand Chamber ◽  
Restrictive Legislation ◽  
The Right ◽  
The Eu

Abstract Certain states impose restrictions on assisted reproduction because they believe such acts to be morally wrong. However, people who live in a state with restrictive legislation always have the option of going abroad to evade that law. Turkey and several states in Australia have enacted extraterritorial laws to stop forms of reproductive travelling for law evasion. Within the EU, the European Convention of Human Rights would normally remove the need for extraterritorial laws. However, because of the wide margin of appreciation allowed by the European Court of Human Rights, legal diversity on these matters persists. In the case of S.H. and Others v. Austria, moral justification, consistency and proportionality were introduced by the First Section to rule on Member States’ legislation on medically assisted reproduction. The First Section mostly ruled on the effectiveness of the law, while the focus should be on the validity of the normative aim. The Grand Chamber reversed this judgement based on the margin of appreciation doctrine, using it as a pragmatic substitute for a substantial decision. In general, the EU’s interests of harmonization and unification are at odds with the right to national identity of individual states in areas of contested morality.

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