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Margin of Appreciation - en diskriminerande doktrin

Kordula, Karolina LU (2013) LAGF03 20132
Faculty of Law
Department of Law
Abstract (Swedish)
The European Convention on Human Rights (ECHR) has up till now been signed by 47 of its member states. By signing the convention the member states undertake to follow the regulations regarding the freedom and rights of the individual, which the convention prescribes. The European Court of Human Rights is the highest condemnatory instance in Europe, with its seat in Strasbourg, where cases regarding the enforcement of the convention are being handled. The court has through praxis developed a doctrine, the Margin of Appreciation, with the purpose of expanding the scope within which the states can enforce and implement the regulations mentioned in the convention. This additional scope gives the states a possibility to adjust these regulations... (More)
The European Convention on Human Rights (ECHR) has up till now been signed by 47 of its member states. By signing the convention the member states undertake to follow the regulations regarding the freedom and rights of the individual, which the convention prescribes. The European Court of Human Rights is the highest condemnatory instance in Europe, with its seat in Strasbourg, where cases regarding the enforcement of the convention are being handled. The court has through praxis developed a doctrine, the Margin of Appreciation, with the purpose of expanding the scope within which the states can enforce and implement the regulations mentioned in the convention. This additional scope gives the states a possibility to adjust these regulations according to the needs and conditions of each individual state, such as cultural patterns and national regulations. The purpose of the ECHR is to make sure that the member states follow the rules and regulations of the court, without violating the sovereignty of each individual state. A constant struggle between confinement and sovereignty has contributed to the way the court enforce the doctrine, which is by giving the states room to act independently through the national courts. The doctrine gives states room to apply the agreements of the convention with national law, cultural patterns and moral codes taken into consideration.

Restrictions of the rights mentioned in the convention can be made by an implementation of the doctrine, where the interest of the individual is balanced against the common good. The essay describes the applicability of the doctrine and its consequences, with a focus on the consequences it has for the individual. By foremost examining the practice of the court, in cases where the doctrine has been applied, one can reach the conclusion that the rights of the individual are being put in the shadow of the interest of the public. The doctrine has also been proven to lead to a discrimination of homosexual rights, even though this seems to have been unconsciously done by the ECtHR. The doctrine doesn’t always seem compatible with the purpose of the ECHR, as the rights of the individual are being violated more often than would be desirable. The essay describes how the use of the doctrine works in practice; alongside with the negative consequences this has for individual rights, and also among these, homosexual rights. (Less)
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author
Kordula, Karolina LU
supervisor
organization
course
LAGF03 20132
year
type
M2 - Bachelor Degree
subject
keywords
Europakonventionen
language
Swedish
id
4228728
date added to LUP
2014-01-28 17:33:00
date last changed
2014-01-28 17:33:00
@misc{4228728,
  abstract     = {The European Convention on Human Rights (ECHR) has up till now been signed by 47 of its member states. By signing the convention the member states undertake to follow the regulations regarding the freedom and rights of the individual, which the convention prescribes. The European Court of Human Rights is the highest condemnatory instance in Europe, with its seat in Strasbourg, where cases regarding the enforcement of the convention are being handled. The court has through praxis developed a doctrine, the Margin of Appreciation, with the purpose of expanding the scope within which the states can enforce and implement the regulations mentioned in the convention. This additional scope gives the states a possibility to adjust these regulations according to the needs and conditions of each individual state, such as cultural patterns and national regulations. The purpose of the ECHR is to make sure that the member states follow the rules and regulations of the court, without violating the sovereignty of each individual state. A constant struggle between confinement and sovereignty has contributed to the way the court enforce the doctrine, which is by giving the states room to act independently through the national courts. The doctrine gives states room to apply the agreements of the convention with national law, cultural patterns and moral codes taken into consideration.

Restrictions of the rights mentioned in the convention can be made by an implementation of the doctrine, where the interest of the individual is balanced against the common good. The essay describes the applicability of the doctrine and its consequences, with a focus on the consequences it has for the individual. By foremost examining the practice of the court, in cases where the doctrine has been applied, one can reach the conclusion that the rights of the individual are being put in the shadow of the interest of the public. The doctrine has also been proven to lead to a discrimination of homosexual rights, even though this seems to have been unconsciously done by the ECtHR. The doctrine doesn’t always seem compatible with the purpose of the ECHR, as the rights of the individual are being violated more often than would be desirable. The essay describes how the use of the doctrine works in practice; alongside with the negative consequences this has for individual rights, and also among these, homosexual rights.},
  author       = {Kordula, Karolina},
  keyword      = {Europakonventionen},
  language     = {swe},
  note         = {Student Paper},
  title        = {Margin of Appreciation - en diskriminerande doktrin},
  year         = {2013},
}