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The Margin of Appreciation and Freedom of Religion: Assessing Standards of the European Court of Human Rights

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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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