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.

2. European Convention on Human Rights

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
European Convention ◽  
Right To Life ◽  
Essential Information ◽  
European Court ◽  
Margin Of Appreciation ◽  
Protection Of Human Rights ◽  
The Individual ◽  
The Right

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first explains the background and rationale for the formation of the European Convention on Human Rights (ECHR), tracing its roots to the Council of Europe that was formed in 1949 and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) established a year later. It then looks at the different kinds of human rights embedded in the ECHR, including the right to life, right to a fair trial, freedom of expression, right to property, and right to free elections. The chapter also provides an overview of the European Court of Human Rights (ECtHR), along with the major changes made to its complaints system and how it interprets the Convention rights. Finally, it considers the ECtHR’s use of proportionality and margin of appreciation doctrines to find the balance between the rights of the individual and the community when deciding upon qualified rights.

scholarly journals EVOLUTIVE INTERPRETATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS: POSSIBILITIES AND LIMITS. THE EUROPEAN COURT OF HUMAN RIGHTS AS A SUBJECT OF INTERPRETATION OF LAW

2016 ◽  
pp. 0-0
Author(s):  
Анатолий Ковлер ◽  
Anatoliy Kovler
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
European Court ◽  
Margin Of Appreciation ◽  
European System ◽  
Protection Of Human Rights

The article analyses a so called “evolutive interpretation” of the European Convention on Human Rights by the European Court of Human Rights creating its case-law. Doing so the Court as a subject of this interpretation has a legitimate competence in the light of the Article 32 of the Convention. The problem is how wide could be this interpretation taking in account the principle of subsidiarity of the european system of the protection of human rights and doctrine of the “margin of appreciation” of the contracting States.

Is the assessment under Article 8 ECHR for migrants justifiable?

2021 ◽  
pp. 1023263X2110614
Author(s):  
Jennie Edlund ◽  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Individual Rights ◽  
Foreign Nationals ◽  
European Court ◽  
The Family ◽  
The Individual ◽  
The Way

The paper analyses the protection granted under Article 8 of the European Convention of Human Rights for different immigration cases. The way the European Court of Human Rights determines compliance with Article 8 for settled migrants differs from the way the Court determines compliance for foreign nationals seeking entry or requesting to regularize their irregular migration status. The paper argues that the European Court of Human Rights application of different principles when determining a States’ positive and negative obligations is contradicting its own case law. It also argues that the absence of justification grounds for the refusal of foreign nationals who are seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper suggests that the differentiation between cases should be based on how a refusal of entry or an expulsion would impact on the family life. The paper also suggests that more consideration should be given towards the insiders interests when balancing the individual rights against the state's interests. These changes would lead to a more consistent and fair case law and generate a more convergent practice by the states which will increase the precedent value of the Court's judgements.

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 Tribunal Europeo de Derechos Humanos y procesos políticos nacionales: democracia convencional y margen de apreciación

2019 ◽  
pp. 221
Author(s):  
Alejandro Saiz Arnaiz
Keyword(s):  
Human Rights ◽  
Political Process ◽  
Case Law ◽  
European Convention ◽  
International Treaty ◽  
Optional Protocol ◽  
Derechos Humanos ◽  
Margin Of Appreciation ◽  
Protection Of Human Rights

Además de un instrumento internacional para la protección de los derechos humanos, el Convenio de Roma de 1950 es también un tratado concebido, en los términos del Tribunal de Estrasburgo, para el mantenimiento y la promoción de los valores e ideales de una sociedad democrática. Esta finalidad se encuentra muy presente en la jurisprudencia del Tribunal, en particular, aunque no solo, en el ámbito de los artículos 8-11 del Convenio y 3 del Primer Protocolo Opcional. Por otro lado, una jurisprudencia bastante reciente utiliza como criterio de identificación del ámbito de aplicación del margen de apreciación la «calidad» del proceso político nacional que ha conducido a la regulación general de la que trae causa una concreta injerencia en el derecho fundamental que el convenio garantiza. En este artículo se analiza tanto el concepto de democracia que resulta de las demandas decididas por el Tribunal como las exigencias que del mismo resultan para definir la extensión del margen de apreciación nacional.The European Convention on Human Rights of 1950 is not only an international treaty of protection of human rights, but also, in Strasbourg Court's terms, an instrument for maintaining and promoting the values and aspirations of a democratic society. This aim permeates all the case law of the Court, particularly in the field of articles 8-11 of the Convention and article 3 of the First Optional Protocol. On the other hand, the “quality” of the national political process has been considered in recent case law as a criterion for the application of the margin of appreciation doctrine. This paper analizes the concept of democracy shaped by the Court and its consequences for defining the extension of the national margin of appreciation.

The European Court of Human Rights and the Protection of Arctic Indigenous Peoples Rights

2018 ◽  
Vol 9 (1) ◽  
pp. 24-52
Author(s):  
Mikael Lundmark
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Active Role ◽  
Case Law ◽  
Historical Background ◽  
The Arctic ◽  
European Convention ◽  
European Court ◽  
Protection Of Human Rights ◽  
Solid Foundation

Based on an ongoing case in Sweden, where Girjas Sami village sued the Swedish state for violation of property rights, this article examines the European Court of Human Rights’ potential influence in the Arctic region’s legal system when it comes to protection of property of Arctic indigenous peoples. This article shows that notwithstanding the historical background of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the case law of the Court provides a solid foundation to advocate that the Court can take a more active role in protecting the rights of Arctic indigenous peoples. What is different in the case of indigenous peoples is that their rights pre-exist that of a modern state, and this does not correlate with the structure of the Convention, which seemingly leads to less protection under the Convention for indigenous peoples. This puts a higher level of responsibility both upon the applicants, as well as on the Court to scrutinize, and apply, the case law of the Court in line with the Convention and the adopted principle of interpretation.

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.

scholarly journals RESPECT FOR PRIVATE AND FAMILY LIFE UNDER ARTICLE 8 ECHR IN IMMIGRATION CASES: A HUMAN RIGHT TO REGULARIZE ILLEGAL STAY?

2008 ◽  
Vol 57 (1) ◽  
pp. 87-112 ◽  
Author(s):  
Daniel Thym
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
Human Right ◽  
Human Rights Protection ◽  
Immigration Laws ◽  
European Court ◽  
The Status ◽  
Protection Of Human Rights

AbstractApplying the European Convention on Human Rights (ECHR) to immigration cases has always been a balancing exercise between the effective protection of human rights and the Contracting States' autonomy to regulate migration flows. In its recent case law, the European Court of Human Rights in Strasbourg (ECtHR) has considerably extended the protective scope of Article 8 ECHR by granting autonomous human rights protection to the long-term resident status independent of the existence of family bonds under the heading of ‘private life’. This has important repercussions for the status of legal and illegal immigrants across Europe, since the new case law widens the reach of human rights law to the legal conditions for leave to remain, effectively granting several applicants a human right to regularize their illegal stay. The contribution analyses the new case law and develops general criteria guiding the application of the ECHR to national immigration laws and the new EU harmonization measures adopted in recent years.

scholarly journals Concept of abuse of procedural rights: general theoretical analysis (based on the case-law of the European Court of Human Rights)

2021 ◽  
pp. 166-175
Author(s):  
Taras Pashuk
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
Judicial Interpretation ◽  
Judicial Practice ◽  
European Court ◽  
Wide Range ◽  
Restrictive Measures ◽  
Procedural Rights

The author analyses the concept of abuse of procedural rights with reference to the case-law of the European Court of Human Rights (ECtHR). In their applications to the ECtHR the applicants often claim that the violations the European Convention on Human Rights (the ECHR) were accompanied by various abuses by the domestic authorities. Such abuses may be of procedural nature and those matters are examined by the ECtHR quite often because the Convention is primarily aimed at protecting an individual from State arbitrariness. At the same time, the problem of abuse of procedural rights may arise before the ECtHR, when such acts were committed by an applicant. This aspect of the problem is being examined in the present article. In this regard the issue of abuse of procedural rights appears in the case-law of the ECtHR in the context of the complaints concerning the alleged violations of rights under the ECHR. This may happen when the State measures to address such a negative phenomenon (for example, penalty for the abuse of procedural right) may at the same time affect the fundamental rights under the Convention. Apart from that, this issue may arise in the context of the application of restrictive measures by the ECtHR itself due to applicants’ abuse of their right of individual petition to the ECtHR. The main features of the abuse of procedural rights arising from the case-law of the ECtHR are the following: (1) using the procedural right contrary to its purpose (in view of multiple purposes of human conduct, this condition implies the need to establish a dominant purpose in the procedural conduct of the person); (2) the presence of damage resulting from such procedural conduct; (3) the exceptional nature of such procedural conduct (implying the necessity to focus on the explicit and obvious facts of procedural abuses). The combination of these features should be used cumulatively in order to determine correctly the limits of applicability of this concept and distinguish it from other related concepts, such as legitimate use of procedural right, refusal to use the procedural right, good-faith mistake in procedural conduct. In addition, the lack of legislative regulation of this institution in the law on criminal procedure of Ukraine calls for the development of judicial practice under Article 185-3 of the Code of Administrative Offenses of Ukraine as regards the administrative liability for contempt of court. It is argued that the provisions of Article 185-3 of that Code, if given appropriate judicial interpretation, can cover a wide range of procedural abuses. Keywords: abuse of procedural right, realisation of subjective right, contempt of court.

scholarly journals Internet and freedom of expression in the case law of the European Court of Human Rights

2020 ◽  
Vol 54 (3) ◽  
pp. 1023-1042
Author(s):  
Ljiljana Mijović
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
The Internet ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
And Control

Internet as a means of communication, whatever the type of information it might be used for, falls within the exercise of the right to freedom of expression, as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. As established in the European Court's case law, freedom of expression constitutes one of the essentials of a democratic society, therefore limitations on that freedom foreseen in Article 10 § 2 of the Convention are to be interpreted strictly. In order to ensure effective protection of one's freedom of expression on the Internet, States bear a positive obligation to create an appropriate regulatory framework, balancing the right to freedom of expression on one and the limitations prescribed in Article 10 § 2, on the other hand. Special attention in doing so is to be paid to the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of other human rights and freedoms guaranteed by the European Convention, particularly the right to respect for private life. While it is the fact that the electronic network, serving billions of users worldwide, will never be subject to the same regulations and control, because of the national authorities' margin of appreciation, the European Court established commonly applicable general principles regarding the Internet as a media of exercising right to freedom of expression.

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