Volume 16, Issue 1

The margin of appreciation is an important argumentative framework employed by the ECtHR. Through its application, the Court may establish a balanced relationship with the member states. This is why the margin is one of the main sources for the ECtHR’s exercise of deference. Deference happens when low intensity of review is applied – or a wide margin. Therefore, to properly know when to act deferentially demands a clear procedure to determine the intensity of review. However, the application of the margin still presents some weak points and lacks consistency. In this paper, I defend the possibility of applying formal balancing to provide a clearer structure for the exercise of the margin of appreciation and, thus, a way to improve deferential practices by the ECtHR. With the clear structure of balancing, factors are employed in a more organized manner and the relationships behind the idea of determining the intensity of review are explicitly justified. Hence, the notion and structure of balancing competences organize the margin of appreciation in a way to free it from its main criticisms and fulfill the argumentative potential it has.

International law has always had a dual significance to the Philippine constitutional system. On the one hand, the frequent articulation of international law principles within modern Philippine constitutional norms, statutes, and administrative rules demonstrate an outward-looking normative ethos – one I have described in other scholarship to be consistent with the 1987 Philippine Constitution’s ‘universalist history’. On the other hand, the considerable volume of Philippine jurisprudence applying international law norms to date overwhelmingly illustrate how Philippine litigants have strategically deployed international law (most especially international human rights law) over the years, as an acceptable external legal basis to hold Philippine government leaders to account under the vastly expanded judicial review doctrine in the 1987 Philippine Constitution. This active individual and group resort to adjudication and legislation could explain why international law has flourished under the postcolonial and post-dictatorship 1987 Philippine Constitution. This comprehensive jurisprudential, statutory, and constitutional analysis aims to show how, and to what degree, Philippine legal culture and history reflect a continuing deep engagement with international law, in ways that are certainly unique to the Philippines’ evolving political ideologies, colonial and postcolonial history, treatment, and implementation of international treaties within the Philippine constitutional system. Most importantly, the absence of explicit methodology for the breadth of constitutional interpretation of the Incorporation Clause under the 1987 Philippine Constitution warrants normative rethinking, so as not to uniformly open the floodgates to hard international law sources (eg treaties, customs, general principles) as well as softer international instruments lacking the requisite State consent to the binding quality of such sources within the Philippine legal system. To this end, I make three proposals on how the Philippine Supreme Court could define an explicit methodology for use and interpretation of the Incorporation Clause, transparently refer to other foreign and international sources, and openly reassess its ideological bases for recognition of international law in the Philippine constitutional system, as part of the Court’s distinct judicial function.

The article deals with the schoolchildren’s right to education and freedom of religion in the case law of the ECtHR, with a special focus on the case Papageorgiou v Greece adopted in October 2019. In the case at hand, the applicants challenged the content of the religious courses in Greece as well as the opt-out procedure offered for parents who did not wish their children to participate in the religious course. The Court concluded that the exemption procedure violated Art 2 of Protocol 1 of the ECHR. After examining previous case law of the ECtHR on similar cases, the article focuses on the most striking parts of the Court’s judgment in Papageorgiou . In particular, the ECtHR only considered the exemption procedure from the courses offered, and made no reference to, or examination of, the courses themselves. In addition, the perspective related to the right to private life is also missing. The article concludes by commenting that the Court’s judgment had already had an impact on the case law of the Greek Supreme Administrative Court.

This research aims at analysing the Constitutional Court’s case law in respect of restrictions on the fundamental rights of convicted individuals in correlation with society’s view of convicts. To do so, along with the methods of legal science (analysis of legal provisions and case law) the research uses sociological concepts, methods, and sources. The fundamental rights of an individual require the State to protect every individual’s human dignity in equal measure. However, even modern-day society still stigmatises particular groups of individuals, restricting their rights without good reason. The case law of the Constitutional Court of Latvia marks convicted individuals as a stigmatised group with limited rights. In the cases analysed, not even the minimum standards of fundamental rights protecting personal privacy were applied to persons serving a sentence for serious offences, with no individual assessment provided for, because society’s opinion, among other things, denies prisoners such fundamental rights. Furthermore, the convicted individuals may suffer from a life-long stigma as they keep being restricted in their rights – eg the rights to employment or to family life – even after the conviction is expunged. The State has to realise: if it limits the possibilities for convicted individuals to lead life with enjoying full rights, the probability of repeated offences by such individuals will be higher. By unreasonably restricting inclusion of convicted individuals in its life, society endangers rather than protects itself.