scholarly journals The doctrine of the margin of appreciation as a tool of relativisation of freedom of religion.

2021 ◽  
Author(s):  
Adam Jakuszewicz
Keyword(s):  
Political System ◽  
Religious Communities ◽  
European Convention ◽  
Freedom Of Religion ◽  
The Political ◽  
Wide Margin ◽  
Minority Protection ◽  
Constitutional Principle ◽  
European Consensus ◽  
Margin Of Appreciation

The objective of the paper is to determine the implications for the interpretation of Article 9 of the European Convention on Human Rights resulting from the Court’s affording to national authorities the wide margin of appreciation when deciding whether in a given case there is a need to limit the exercise of freedom of religion. The use of the doctrine of margin of appreciation in such cases is justified both by the lack of an all-European consensus as to the proper model of relations between the state and religious communities and by divergences of views and traditions concerning the importance and impact of religion in the society. In consequence, the Court holds that restrictions on freedom of religion on grounds of the principle of secularism, which in some countries has a rank of a constitutional principle of the political system, are compatible with the Convention. This is the case eve where establishing a link between the restriction of this kind with any of the legitimate aims outlined in Article 9.2 of the Convention is highly disputable, if not impossible. Moreover, the excessive use of the doctrine of margin of appreciation in this context makes the protection level of freedom of religion contingent on prevailing ( not always rational and free from prejudice )views and attitudes towards some forms of manifestation of religious beliefs. This outcome, however, is difficult to reconcile with values underlying the Convention and the need for minority protection

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 Swiss Consensus Democracy in Transition: A Re-analysis of Lijphart's Concept of Democracy for Switzerland from 1997 to 2007

2008 ◽  
Vol 4 (2) ◽  
Author(s):  
Adrian Vatter
Keyword(s):  
Interest Groups ◽  
Political System ◽  
Extreme Case ◽  
Dominant Mode ◽  
The Political ◽  
Consensus Democracy ◽  
European Consensus ◽  
The Government ◽  
Number Of Parties ◽  
The Relationship

The present article addresses the question of whether Switzerland can continue to be seen as an extreme case of federal consensus democracy, as illustrated by Arend Lijphart (1999). A re-analysis of Lijphart's (1999) study of the Swiss political system from 1997 to 2007 clearly demonstrates that due to recent political-institutional changes (a decreasing number of parties, growing electoral disproportionality, increasing decentralization and deregulation of the relationship between the state and interest groups), a consensus democracy with strong tendencies toward adjustment and normalization of the original exceptional Swiss case to meet the rest of the continental European consensus democracies has emerged. This development has been further strengthened by intensified public political contestation, rising polarization between the political camps in parliament, and the weakening of the cooperative search for consensus as the dominant mode of negotiation within the government. From the perspective of international comparison, Switzerland can thus be seen henceforth as a typical example, not an extreme case, of consensus democracy.

scholarly journals Czy parlament może zmienić mężczyznę w kobietę? Granice i miejsce zasady supremacji parlamentu w brytyjskim porządku konstytucyjnym wobec europejskich procesów integracyjnych (wybrane problemy)

2018 ◽  
pp. 71-82
Author(s):  
Marcin Łukaszewski
Keyword(s):  
European Union ◽  
United Kingdom ◽  
Political System ◽  
The Political ◽  
The European Union ◽  
Political Reality ◽  
Constitutional Principle ◽  
The United Kingdom ◽  
Judicial Proceedings ◽  
The Uk

The political system of the United Kingdom of Great Britain and Northern Ireland is of interest to researchers for several reasons. One of the most important motivations certainly involves the unique construction of its Constitution, the content of which is not formulated in a single legal act of a supreme status. This unwritten Constitution encompasses at least four parts. The most important part is undoubtedly constituted by one of three principles of the political system, namely the principle of the sovereignty (omnipotence) of parliament. This principle, which is regarded as a constitutional principle by some and as a principle above the Constitution by others, constitutes the core of British constitutional law. The topic of this paper is an attempt to indicate the boundaries of this principle in the British constitutional order and to place it in relation to remaining principles. The boundaries of this principle have been considered by British constitutionalists on numerous occasions. Considerations on the relation of this principle to the remaining elements of the Constitution have been the subject of interest for courts of law, including the House of Lords, which used to function as the court of last instance in judicial proceedings prior to the 2005 reform. It is worth emphasizing that even the lords/judges frequently disagreed on the boundaries of the principle and even on whether the principle can be examined by any court. There were also views that the principle is only a virtual construct, and even if it had ever applied to the political system at all, it can no longer be referred to, given contemporary European integration processes. The complicated combination of elements of the British constitution with the presence of the United Kingdom in the structures of the European Council and European Union (preceded by the European Community) have produced a number of interpretations of the principle of the omnipotence of the parliament in the new political reality the UK has found itself in. It was the adoption of the European Communities Act 1972, followed several decades later by the adoption of the European Union Act 2011 that led to the discussion on the construction of the British Constitution and either the approval or rejection of the concept that the Constitution of the United Kingdom with its meta-principle should be interpreted anew.

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.

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.

23. Conclusion

2021 ◽  
pp. 649-660
Author(s):  
Ian Loveland
Keyword(s):  
Twentieth Century ◽  
Human Rights ◽  
Political System ◽  
Constitutional Reform ◽  
European Convention ◽  
The Political ◽  
Simple Majority ◽  
Amsterdam Treaty ◽  
System P ◽  
Fundamental Freedoms

This chapter addresses the question of whether it is legally possible to entrench legislation in a way that safeguards it from repeal by the traditional ‘simple majority in Commons and Lords plus Royal Assent’ formula; and, if so, under what political circumstances it might legitimately be employed. It argues that the Blair government’s commitment to establishing a pluralist political culture is head and shoulders above any of their twentieth-century predecessors. This is most evident in its devolution legislation as well as in its embrace of the European Convention on Human Rights and Fundamental Freedoms and the provisions of the Amsterdam Treaty. The same observation may be made about the Blair government’s promotion of the Constitutional Reform Act 2005. Yet these initiatives, desirable though they may be, can hardly be seen as engineering a constituent reformation of the political system.

24. Conclusion

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Twentieth Century ◽  
Human Rights ◽  
Political System ◽  
Constitutional Reform ◽  
European Convention ◽  
The Political ◽  
Simple Majority ◽  
Amsterdam Treaty ◽  
System P ◽  
Fundamental Freedoms

This chapter addresses the question of whether it is legally possible to entrench legislation in a way that safeguards it from repeal by the traditional ‘simple majority in Commons and Lords plus Royal Assent’ formula; and, if so, under what political circumstances it might legitimately be employed. It argues that the Blair government’s commitment to establishing a pluralist political culture is head and shoulders above any of their twentieth-century predecessors. This is most evident in its devolution legislation as well as in its embrace of the European Convention on Human Rights and Fundamental Freedoms and the provisions of the Amsterdam Treaty. The same observation may be made about the Blair government’s promotion of the Constitutional Reform Act 2005. Yet these initiatives, desirable though they may be, can hardly be seen as engineering a constituent reformation of the political system.

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.

scholarly journals Securing the Future of the European Court of Human Rights in the Face of uk Opposition

2017 ◽  
Vol 6 (1) ◽  
pp. 53-85 ◽  
Author(s):  
Kimberley Brayson
Keyword(s):  
Human Rights ◽  
European Convention ◽  
The Political ◽  
Access To Justice ◽  
European Court ◽  
Margin Of Appreciation ◽  
The Future ◽  
The Face ◽  
The Cost ◽  
National Governments

This article highlights transnational consequences for access to justice of political posturing by national governments in respect of the European Convention on Human Rights (echr). It charts the uk context preceding the adoption of Protocol 15, which inserts the concepts of subsidiarity and the margin of appreciation into the echr preamble. The article argues that whilst this was an attempt to curb the European Court of Human Rights’ (ECtHR) powers, this proved limited in effect, as the court is too well established as a Supreme Court for Europe in the cosmopolitan legal order of the echr. The political-legal interplay which is the genesis of the echr system means that political manoeuvring from national governments is inevitable, but not fatal to its existence. However, the legitimacy of the ECtHR is secured only through political concessions, which act to expel surplus subjects from echr protection. The article concludes that the legitimacy of the ECtHR is therefore secured at the cost of individuals whose rights are worth less than the future of the court.

Oddziaływanie doktryny marginesu uznania na rozstrzyganie konfliktu pomiędzy wolnością wypowiedzi a wolnością sumienia i wyznania w praktyce orzeczniczej Europejskiego Trybunału Praw Człowieka

2020 ◽  
pp. 83-98
Author(s):  
Hanna Wiczanowska
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Research Question ◽  
European Convention ◽  
Freedom Of Religion ◽  
Main Research ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Margin Of Appreciation

The aim of the paper hereto is to conduct analysis regarding the influence of the margin of appreciation doctrine on the solution of the collision between the freedom of expression and the freedom of religion within the Strasbourg system of human rights protection. The main research question focuses on the issue whether the margin of discretion equally affects both considered freedoms and how it impacts their conflict. The paper will rely on dogmatic analysis of the provisions of the European Convention on Human Rights and selected judgments of the European Court of Human Rights in relation to the collision of the aforesaid freedoms. In this article, the author will also implement the historic method. The main thesis of the article is the primacy of the freedom of religion which causes illegitimate limitation of the freedom of expression due to lack of uniform European consensus regarding the qualification of the blasphemous speeches which constitutes a threat for legal certainty.

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