文章基本信息

标题：THE MARGIN OF APPRECIATION, CONSENSUS, MORALITY AND THE RIGHTS OF THE VULNERABLE GROUPS
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作者：Radačić, Ivana
期刊名称：Collected Papers of the Law Faculty of the University of Rijeka
印刷版ISSN：1330-349X
电子版ISSN：1846-8314
出版年度：2010
卷号：31
期号：1
页码：599-616
出版社：Pravni fakultet Sveučilišta u Rijeci
摘要：The doctrine of the margin of appreciation is one of the most controversial developments of the European Court of Human Rights, which, in view of many scholars, impedes the development of universal standards of human rights. The Court has most often used it to defer to the state’s judgment on what the protection of Convention rights requires if there is no consensus on this issue, or if the government invokes the protection of morality as the reason for interference with Convention rights. The author criticises such a use of the doctrine examining the ways consensus and morals have been interpreted in the case-law. The author argues that deference to the state’s judgment in case there is a lack of a common approach among the member states on the relevant issue, or when the issue concerning the (sexual) ‘morality’, presents an obstacle for the effective protection of the rights of vulnerable groups, due to the fact that it conditions their protection with the acceptance by the majority of the states or the majority within the state. It is maintained that the Court should never allow to the states a margin of appreciation to decide what standards the Convention imposes except in cases when the states decide on implementation of these standards. In determining the standard, the Court should be guided by the values of autonomy, equality and human dignity, rather than by the issue of consensus, which presupposes searching for and challenging the exclusion and disadvantage of vulnerable groups.
关键词：margin of appreciation; consensus; morals; rights of vulnerable groups;