The Margin of Appreciation and Freedom of Religion: Assessing Standards of the European Court of Human Rights
This article has
been published in The International Journal of Human Rights
(Routledge/Taylor&Francis). (read/download)
Abstract
Throughout history, the
relationship between religion and State has posed challenges. The issue of religious
symbols in the public sphere is an area where the European Court of Human
Rights has granted a wide margin of appreciation to States. The main argument
is that there is no European consensus on the issue and that national
authorities are better positioned to determine when interference with the freedom
of religion becomes necessary in a democratic society. However, this argument
has evoked criticism that no strong legal reasons or standards have been
applied to the doctrine of the margin of appreciation. This article aims to analyse
the Court’s standards through an examination of the limits imposed on the
doctrine under European supervision. Notwithstanding the controversy over its
application, the doctrine does play an essential role in accommodating the
diversity of human rights protection in Europe. Therefore, in future judgements,
the Court should focus on a proportionality test against the State arguments, which
would allow the Court to determine the applicability of the doctrine in the
case of freedom of religion.
Keywords: Margin of appreciation; European
Court of Human Rights; freedom of religion; religious symbol; democratic
society
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