scholarly journals Dopuszczalność opodatkowania odszkodowania uzyskanego od Skarbu Państwa w świetle standardów ochronnych Europejskiej konwencji praw człowieka

2019 ◽  
Vol 115 ◽  
pp. 19-39
Author(s):  
Aleksander Cieśliński
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Legal Obligations ◽  
European Court ◽  
Margin Of Appreciation ◽  
Commercial Company ◽  
Full Compensation ◽  
Business Entities ◽  
Principle Of Proportionality

ADMISSIBILITY OF TAXATION OF THE COMPENSATION RECEIVED FROM THE STATE TREASURY IN THE LIGHT OF PROTECTIVE STANDARDS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTSThe purpose of this paper is to analyze the legal admissibility of taxing the compensation received by a commercial company from the State Treasury which is responsible for the damage suffered by the company. Such damage may be caused by State officials in the performance of their duties, including the tax authorities. It seems completely obvious that the victim should expect full compensation. Unfortunately, such sums are classified by the Polish tax law as any other income received by the tax payer and no exception is provided, which results in an actual reduction of its value.However, it may raise serious doubts if one takes into account legal obligations under the European Convention on Human Rights and the well developed case law of the European Court of Human Rights. Even though the Convention is usually not considered to be a legal act that could protect commercial interests of business entities, one should not forget about its very important Article 1 of Protocol 1, providing protection of property also for legal persons. In this particular case, it is not the amount of tax collected that should be seen as the property that has been taken away, as under this provision domestic authorities are entitled to enforce such laws as they deem necessary to control the use of property to secure the payment of taxes. What makes it so special is this context of compensation and that is why an evaluation of the interpretation of the term “possessions” and the appropriate understanding of the essence of the taxpayer’s right is one the major topics of this paper. The biggest challenge, however, is related to the margin of appreciation left to the Contracting Parties as to the measures that might be undertaken for the sake of the abovementioned purpose, especially seeing as in the area of taxation the Court seems to be particularly tolerant. Therefore, special emphasis is put on the principle of proportionality and its meaning for the analyzed case.

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.

scholarly journals The Role of the European Court of Human Rights in Promoting Horizontal Positive Obligations of the State

2017 ◽  
Vol 17 (2) ◽  
pp. 39-53 ◽  
Author(s):  
Monika Florczak-Wątor
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation

Summary Over the last forty years the concept of the horizontal positive obligations of the State Parties to the European Convention on Human Rights has been developing in a number of cases of the European Court of Human Rights. This concept extends the protection of Convention rights and freedoms to horizontal relations, that is, to the relations between two private parties. However, the Convention on Human Rights can be violated only by the State; the violation by private parties is not possible, as private parties are not parties to the Conventions. Therefore, the only way to challenge a violation of Convention rights committed by private parties is to link this action to an act or omission of the State, and to claim that the State is responsible for it. This, in turn, requires demonstrating that the Convention obliges the State to protect one individual’s Convention rights from violations committed by other individuals. The State has a wide margin of appreciation as to how it discharges the obligation to protect Convention rights against violations by private individuals.

Abortion for Foetal Abnormalities in Ireland; The Limited Scope of the Irish Government’s Response to the A, B and C Judgment

2013 ◽  
Vol 20 (2) ◽  
pp. 117-143 ◽  
Author(s):  
Stephen Donoghue ◽  
Claire-Michelle Smyth
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Abortion ◽  
Member States ◽  
Non Invasive ◽  
European Court ◽  
Margin Of Appreciation ◽  
Controversial Topic ◽  
The Government ◽  
Limited Scope

Abstract Abortion has been a controversial topic in Irish law and one which the Government has been forced to address following the decision of the European Court of Human Rights in A, B and C v. Ireland. The Working Group established to make recommendations have specifically been instructed to deal only with the issues raised in the A, B and C judgment and legislate on the basic of the ‘X case’. This restricted approach calls for legalisation of abortion only where the life of the mother is at risk, a position unique only to Ireland and Andorra within Europe. The vast majority of member states to the European Convention on Human Rights allow for legal abortion on the basis of foetal abnormality and with this emerging consensus the margin of appreciation hitherto afforded by the European Court to member states is diminishing. The advancement and availability of non-invasive genetic tests that can determine foetal abnormalities together with the ruling in R. R. v. Poland leaves Ireland in a precarious position for omitting any reference to foetal abnormalities in any proposed legislation.

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.

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

When interpreting domestic legislation courts must, so far as it is possible, read and give effect to such legislation in a way which is compatible with the Convention rights; see s3(1). Hence domestic courts are given a degree of latitude – reference to the jurisprudence of Strasbourg is mandatory – but it need only be taken into account. Legislation must be construed in a manner compatible with the Convention but only so far as is possible. Three points are particularly worth noting: • When applying the European Convention on Human Rights a domestic court should be prepared to take a generous view as to whether an activity falls within the protection afforded by the Convention’s articles. • The Convention is to be regarded as a ‘living’ or ‘dynamic’ instrument to be interpreted in the light of current conditions. More recent decisions of the European Court of Human Rights will be regarded as carrying more weight than earlier decisions. • Where an Article of the Convention permits some state interference with the enjoyment of a right, a court assessing the extent to which that interference is compatible with the Convention should consider (i) whether the interference is provided for by law; (ii) whether it serves a legitimate purpose; (iii) whether the interference is proportionate to the end to be achieved; (iv) whether it is necessary in a democratic society; (v) whether it is discriminatory in operation; and (vi) whether the state should be allowed a margin of appreciation in its compliance with the Convention – that is, be allowed to apply the Convention to suit national standards. The ‘quality of law test’

1996 ◽  
pp. 88-88
Keyword(s):  
Human Rights ◽  
National Standards ◽  
European Convention ◽  
Domestic Court ◽  
European Court ◽  
Margin Of Appreciation ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
State Interference

Handyside v United Kingdom (1979–80) 1 EHRR 737, European Court of Human Rights

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Public Law ◽  
European Convention ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Domestic Law

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Handyside v United Kingdom (1979-80) 1 EHRR 737, European Court of Human Rights. This case concerned a book which breached the Obscene Publications Act 1959. The publisher, Handyside, contended that the domestic law (the 1959 Act) breached his Article 10 rights under the European Convention on Human Rights. The case introduced the concept of the ‘margin of appreciation’ accorded to states as regards the implementation of convention rights. The case predates the passage of the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

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.

scholarly journals Fault, knowledge and risk within the framework of positive obligations under the European Convention on Human Rights

2020 ◽  
Vol 33 (3) ◽  
pp. 601-620
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Main Argument ◽  
European Court ◽  
Normative Considerations

AbstractThe European Court of Human Rights has consistently reiterated that positive obligations under the European Convention on Human Rights arise when state authorities know or ought to have known about the risk of harm. This article attempts to describe and assess the role of state knowledge in the framework of positive obligations, and to situate the Court’s approach to knowledge about risk within an intelligible framework of analysis. The main argument is that the assessment of state knowledge is imbued with normative considerations. The assessment of whether the state ‘ought to have known’ is intertwined with, first, concerns that positive obligations should not impose unreasonable burden on the state and, second, the establishment of causal links between state omissions and harm.

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