The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases

Onder Bakircioglu

Research output: Contribution to journalArticlepeer-review

Abstract

This paper discusses whether or not Strasbourg organs have created principled criteria governing the use of the doctrine within the context of free speech and public morals. The first part of the paper gives an overview of the doctrine and further examines how the doctrine has evolved within the European context. Part II focuses on the rationale behind the doctrine and discusses the legitimacy of the doctrine in light of its application to various forms of free speech. Part III covers one of the most problematic applications of the doctrine in matters concerning public morality, where Contracting States have a wide margin of appreciation. This part will discuss whether or not the “lack of European consensus” criterion is an elusive concept that might create a risk of abuse in the application of the doctrine. The paper concludes that while margin of appreciation today serves as a flexible instrument between the local necessities and the universal application of human rights, the imprecise and contradictory points might lead to its potential abuse that might endanger its future existence.
Original languageEnglish
Pages (from-to)711-734
Number of pages24
JournalGerman Law Journal
Volume8
Publication statusPublished - Jun 2007

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