The Effects of Margin of Appreciation Doctrine on the European Court of Human Rights: Upholding Public Morality over Fundamental Rights

This chapter examines the relevance of freedom of expression to the parody exception. It first considers the debate on the interaction between intellectual property rights and fundamental rights before discussing the ways in which freedom of expression may address the excessive expansion of exclusive rights as well as the outer limits of the parody exception. The chapter explains how human rights are embodied in the parody exception and how factors established in the European Court of Human Rights jurisprudence may legitimately restrict freedom of expression. It also explores how national legislators and courts in France, Australia, Canada, the United States, and the United Kingdom strike a balance between freedom of expression values and copyright values. It shows that the outer limits of the parody exception in each jurisdiction are determined by the influence of freedom of expression on copyright, the margin of appreciation, and the proportionality test.

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Cultural Rights and the Margin of Appreciation Doctrine: A Legal Tool for Balancing Individual Rights and Traditional Rules

Law Culture and the Humanities ◽

10.1177/1743872117732846 ◽

2017 ◽

Vol 13 (3) ◽

pp. 446-468

Author(s):

Fabio Macioce

Keyword(s):

Human Rights ◽

Fundamental Rights ◽

Constitutional Rights ◽

Individual Rights ◽

Group Rights ◽

Cultural Rights ◽

European Court ◽

Margin Of Appreciation ◽

Subsidiarity Principle ◽

Legal Mechanism

The aim of this article is to suggest a way forward for conflicts between individual rights and group rights, and between policies of equality and policies of difference. I propose a strategy to deal with problems of recognition, by establishing a legal mechanism in which powers and responsibilities are shared by the group and the state. This strategy does recognize the importance of the subsidiarity principle, and it is based on the European Court of Human Rights (ECtHR)’s margin of appreciation doctrine. This approach aims to combine respect for fundamental rights with the defense of a group’s identity, by allowing group representatives a wider margin of interpretation in constitutional rights enforcement. At the same time, I argue that this perspective may be a judicial mechanism to encourage groups to gradually develop their traditions, and to update them to constitutional standards.

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RESEÑA de : García Roca, Javier. El margen de apreciación nacional en la interpretacióndel Convenio Europeo de Derechos Humanos : soberanía e integración. Cizur Menor: Cuadernos Civitas/Instituto de Derecho Parlamentario, 2010

Teoría y Realidad Constitucional ◽

10.5944/trc.28.2011.6979 ◽

2011 ◽

pp. 662

Author(s):

Ignacio Gutiérrez Gutiérrez

Keyword(s):

Human Rights ◽

Common Law ◽

Fundamental Rights ◽

Derechos Humanos ◽

European Court ◽

Margin Of Appreciation

The book analyzes the «margin of appreciation doctrine» in the jurisprudence of the European Court of Human Rights from the viewpoint of the formation of a European common law of fundamental rights oriented towards the integration of Europe.El libro analiza «el margen de apreciación nacional», un argumento recurrente en la jurisprudencia del Tribunal Europeo de Derechos Humanos, desde la prespectiva de la formación de un Derecho común europeo de los derechos orientado a la integración de Europa.

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Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

Studia Prawnicze / The Legal Studies ◽

10.37232/sp.2014.4.2 ◽

2014 ◽

pp. 33-48

Author(s):

Przemysław Florjanowicz-Błachut

Keyword(s):

European Union ◽

Human Rights ◽

Due Process ◽

Case Law ◽

Fair Trial ◽

Fundamental Rights ◽

European Convention ◽

European Court ◽

Judicial Reasoning ◽

The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

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

European Journal of Health Law ◽

10.1163/15718093-12341260 ◽

2013 ◽

Vol 20 (2) ◽

pp. 117-143 ◽

Cited By ~ 2

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.

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Muslim Reformists, Female Citizenship, and the Public Accommodation of Islam in Liberal Democracy

Politics and Religion ◽

10.1017/s1755048311000617 ◽

2012 ◽

Vol 5 (1) ◽

pp. 2-35 ◽

Cited By ~ 3

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.

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