Margin of Appreciation in Interpreting Freedom of Religion: A critical appraisal on role of European court of Human Rights

Bandyopadhyay, Bidisha (2024) Margin of Appreciation in Interpreting Freedom of Religion: A critical appraisal on role of European court of Human Rights. Asian Journal of Legal Education. ISSN 2322-0058 (In Press)

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Abstract

This intricate analysis delves into the discernible inconsistencies characterizing the European Court of Human Rights’ (ECtHR) application of the margin of appreciation (MoA) doctrine concerning Article 9 of the European Convention on Human Rights. The evident absence of explicit guidelines delineating the parameters of the margin, exemplified by the Kokkinakis case, results in a perplexing and contradictory implementation of this legal tool. The Court’s vacillation in standards of review, notably illustrated in Sahin’s and Lautsi’s cases, underscores a jurisprudential ambivalence in matters of religious expression. Moreover, the Court’s oscillation in calibrating the margin, as observed in S.A.S v. France and Eweida and Others v. UK, raises valid concerns about judicial impartiality and potential predilections. The reliance on the absence of European consensus, as seen in cases like Dahlab v. Switzerland and Lautsi v. Italy, introduces an element of interpretive subjectivity that may undermine the robustness of human rights imperatives. In light of these complexities, this analysis calls for a more lucid, principled and judicious application of the MoA doctrine by the ECtHR to ensure the consistent protection of fundamental human rights within the European legal framework.

Item Type: Article
Keywords: European Court of Human Rights’ (ECtHR) | Margin of appreciation (MoA) | European Convention on Human Rights
Subjects: Social Sciences and humanities > Social Sciences > Human Rights
Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Subhajit Bhattacharjee
Date Deposited: 05 Jun 2024 04:13
Last Modified: 05 Jun 2024 04:33
Official URL: https://doi.org/10.1177/23220058241253180
URI: https://pure.jgu.edu.in/id/eprint/7892

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