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.

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.

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 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.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

2019 ◽  
Vol 8 (2) ◽  
pp. 172-191
Author(s):  
Sabrina Praduroux
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Economic Value ◽  
Case Law ◽  
European Court Of Justice ◽  
Property Law ◽  
Court Of Justice ◽  
European Court ◽  
Key Concepts ◽  
Domestic Law

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

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.

The EC and WTO Trade and Environment Case Law: Procedural Aspects, Legal Principles and Institutional Matters

2000 ◽  
Vol 3 ◽  
pp. 327-350
Author(s):  
Nicola Notaro
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Trade And Environment ◽  
Legal Principles ◽  
Judicial Decisions ◽  
Appellate Body ◽  
Court Of Justice ◽  
European Court ◽  
Court Of First Instance ◽  
Two Bodies

Hundreds of studies have been conducted by lawyers, economists and political scientists on international trade and environment, yet very few attempts have been made to compare judicial decisions adopted in this area by the European Court of Justice, its Court of First Instance, and GATT/WTO rulings on trade and environment. Most of the existing publications are either limited in scope, because they only focus on a comparison of two cases at any one time, or are outdated, especially in the light of innovative European and Appellate Body jurisprudence of the last few years. Here, a comparison of the main trade and environment themes traversing the two bodies of case-law, including procedural issues, will be undertaken. This will cast light on the means by which the current tension between trade and environment might be resolved. Account will be taken of the different “constitutional” positions of judicial bodies in the two legal orders, the role played by the presence (or absence) of the legislator, and its influence on reasoning in judicial decisions.

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.

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.

Islamophobia and the ECtHRA Test Case for Positive Subsidiarity for the Protection of Europe’s Long-term Migrants?

2021 ◽  
pp. 196-216
Author(s):  
Eva Brems
Keyword(s):  
Human Rights ◽  
Best Practice ◽  
Case Law ◽  
Test Case ◽  
European Court ◽  
Margin Of Appreciation ◽  
Minority Religion ◽  
The Face

A reflection on the human rights of migrants in Europe cannot avoid the issue of racism. Resistance to immigration in Europe is fuelled to a large extent by resistance to the ‘otherness’ of migrants. More specifically, the ‘otherness’ that is most central to today’s debates on migration and integration in Europe is Islam. Thus, racism is commonly expressed as Islamophobia, and Islamophobia is both expressed in, and fuelled by, rights-restrictive rules that specifically target Islamic practices. The focus of the analysis in this chapter is on the messages the European Court of Human Rights (ECtHR) is sending to national authorities regarding their approaches to multicultural conflicts over Islamic minority practices. This is situated in the framework of ‘positive subsidiarity’. It is argued that, even when the margin of appreciation is a wide one, the Court has a responsibility to offer guidance to states parties on three levels: substantive, procedural, and discursive. The chapter then explores the messages sent by the Court to states parties in the field of the restriction of Islamic minority practices. First it does so by comparing what is widely considered the Court’s ‘worst practice’ in this field—the face veil cases—with its ‘best practice’ in a different, but comparable field—the ‘gay propaganda’ cases. After that, the chapter continues the analysis on the basis of a broader case law corpus that includes all cases regarding the accommodation of Islamic practice in countries in which Islam is a minority religion.

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