”Personal Autonomy” and “Democratic Society” at the European Court of Human Rights: Friends or Foes?

Begum Bulak, Alain Zysset

Abstract


In this contribution, we first argue that the ECtHR has come to develop a salient dualist reasoning under Articles 8-11. Although the ECtHR has held that all those articles serve the overarching ideal of ‘democratic society’, its right-based reasoning can be differentiated. On the one hand, the ECtHR has focused on the free circulation of ideas and opinions – in particular, those held on issues of public interest – in its treatment of the freedoms of expression (Article 10) and assembly and association (Article 11). The more those views are subject to prohibition, the more the margin of appreciation is reduced. On the other hand, the ECtHR has focused on the notion of ‘personal autonomy’ to adjust its margin of appreciation under Articles 8-9. The more personal autonomy is endangered, the more it reinforces the scrutiny in the assessment of reasons for an interference. Secondly, we argue that such dualist approach stands in need of clarification. Could individuals reasonably express and develop their views on issues of public interest without assuming their autonomy? Conversely, can the ECtHR assert that freedom of religion pertaining to the forum internum – typically, religious beliefs – has no relevance in the expression of personal views on issues of public interest? By contrast to most views in the literature, our argument does not rely on a prior normative theory of the virtues of a ‘legal system’ – such as legal certainty, coherence and harmony – that generally target the ambiguous use of the margin of appreciation doctrine, or on a prior normative theory of the values that ECtHR should protect. Rather, our argument relies on the conceptual vagueness that follows from the ECtHR’s differential reasoning. The current application of the margin of appreciation implies that there are not only different ‘localised system of values’ among State Parties, but that there are different ‘localised democratic societies’.

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