Interference with Freedom of Expression

Established as a personal right, the right to free speech implies obligations and duties, which may generate possible restrictions. Freedom of expression works correctly in a legal framework when it comes to a legitimate aim in a state law. Article 10, paragraph 2, of the Convention explains the conditions under which the right to freedom of expression is justified by the need to protect certain public interests (such as those relating to national security, the territorial space of the state, public order, the prevention of crimes, the protection of health and social morals, the guarantee of authority and the impartiality of the judiciary) but also to protect certain private interests, such as reputation and the rights of others. persons or the need to prevent the publication of secret information. This paragraph basically authorizes states to take certain measures to protect those interests, which materialize through rules and normative rules of the right to conscience, opinion and freedom of expression States enjoy a margin of appreciation for establishing the need for such reactions in a state governed by the rule of law, but in the end it is also up to the European Court of Human Rights to rule on the compatibility of interference with the provisions of the Convention, assessing on a case-by-case basis if the interference arises as a result of the urgent social issues and whether it is fair.

Challenges Related to the Increase of Religious Diversity in the Light of the Judicial Decisions of the European Court of Human Rights

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.

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

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

Gender Equality Principle: Application in ECtHR’s Practice

The article is devoted to analyzing the decisions of the European Court of Human Rights (ECtHR), which concerned the issue of gender equality, distinctive features of the application of a gender equality principle by the ECtHR. Based on a study of ECtHR's rulings, it is noted that the concept of gender equality as one of the objectives of the Council of Europe has been applied by the ECtHR since the early 1990s. The ECtHR's approaches to dealing with gender equality cases are characterized both through the prism of non-discrimination (applying Article 14 of the European Convention on Human Rights in combination with other articles) and through complaints about violations of rights guaranteed by other ECHR articles. The analysis shows that, on the one hand, ECtHR emphasizes that gender equality is considered as one of the critical principles of the ECHR. However, on the other hand, significant difficulty in gender discrimination cases is the Court's possibility to refuse to analyze the case in the context of Article 14th content of the Convention. The possibility of giving the Court to states a vast margin of appreciation in determining domestic policies on gender equality is ambiguously manifested in judicial practice. The conclusion states that the need to ensure gender equality can be considered by the ECtHR as a legitimate aim and can serve as an appropriate basis for interfering with the exercise of certain rights and freedoms enshrined in the Convention.

The Concept of the ‘Living Constitution’ in Russian Constitutional Theory and Practice

In discussing the concept of the ‘living constitution’ in Russian constitutional theory and practice, this paper shows that the Russian concept of the living constitution differs from U.S. or European approaches to evolutive interpretation. The Russian concept has its roots in Soviet and pre-revolutionary Russian constitutional thinking. It reduces the normative power of the Constitution but allows an interpretation according to changing social conditions and gives the legislator a broad margin of appreciation. Whereas the 1993 Russian constitutional reform had been regarded as a paradigm shift with the intention to break with the past by declaring that the Constitution shall have supreme judicial force and direct effect, the paper also gives answers to the complexity of constitutional change and legal transplants and the role of constitutional theory and practice for the functioning of the current authoritarian regime in Russia.

The scope of the margin of appreciation in the jurisprudence of the European Court of Human Rights

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.

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By its decision in case Goodwin v. United Kingdom (2002), The European Court of Human Rights has recognized the positive obligation of states to provide conditions for the legal recognition of preferred gender in the context of the right to respect for private life. In this regard, the Court emphasized gender identity as an important element of personal identity and an integral part of the transgender person's right to private life. On the other hand, states have kept their margin of appreciation regarding requirements needed for changing gender data in civil registries or in other words legal recognition of preferred gender. After Goodwin case, that has laid foundations for the rights of transgender people to gender identity, further development of this right was set by the decision of the European Court of Human Rights in case A.P., Garçon and Nicot v. France (2017). By this decision, the Court has further narrow the margin of appreciation removing imposing of sterilisation as a requirement for legal gender recognition. Finally, The European Court of Human Rights has taken the position in the latest judgment X and Y. v. Romania (2021) that conditioning legal recognition of preferred gender with surgical interventions of gender reassignment represents breach of the right to respect private life. Thus, the Court further approached Council of Europe Resolution 1728 (2010) according to which states are suggested to remove from the requirements for legal gender recognition the subjection to any medical service of gender reassignment, including hormone therapy. Domestic legislation has retained only hormone therapy as a necessary condition for legal gender reassignment. Although this solution is in accordance with the latest case law of the European Court of Human Rights, another step is needed to make the exercise of the right to gender identity adjusted to the "soft law" of the Council of Europe and the bodies under the auspices of the United Nations.

Wearing religious symbols at work in the ECtHR’s judgments

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.

The Framework for Coastal State Jurisdiction over Fishing in the EEZ

This Chapter outlines the legal framework for the regulation of living resources in the exclusive economic zone (EEZ) as established in the 1982 United Nations Convention on the Law of the Sea (LOSC) and other relevant international instruments. It demonstrates how the LOSC seeks to balance the competing interests of coastal and flag States and argues that while the ‘non-specific’ standards established in the LOSC have subsequently been strengthened by the recognition of additional conservation and management concepts, the basic rights and obligations of coastal States remain ambiguous, open-ended, and highly qualified. In order to clarify this ambiguity, it looks beyond the basic list of rights and duties set out on the face of the LOSC to establish what coastal States must, may, and must not do in exercising their sovereign rights over living resources in the EEZ. It examines the approaches taken by international courts and tribunals in reviewing the innovations and interpretations offered by coastal States in their implementation of the LOSC, and identifies the broader, normative principles that constrain and enable coastal State jurisdiction in the EEZ. This includes discussion of the rules of due regard and due diligence, the role of the margin of appreciation doctrine, and the extent to which a coastal State may act to protect—or prevent interference with—its sovereign rights. The Chapter concludes by drawing these concepts together to outline the basic framework that governs the continuum of jurisdiction over living resources in the EEZ.