Abstract

FLEITAS DE LEON, Luis. The democratic rationality as a normative condition for the application of the margin of state appreciation in the conventionality control. A tool for the protection of minorities. Rev. Fac. Der. [online]. 2022, n.53, 01205.  Epub June 01, 2022. ISSN 0797-8316.  https://doi.org/10.22187/rfd2022n53a8.

Based on the criterion of margin of state appreciation, or discretion, produced by the European Court of Human Rights, the aim of this paper is to propose a democratic condition to the possibility that the Court can grant such deference from conventionality control to the prosecuted country, posing what should be its normative sense. The start-up is the Court’s jurisprudence in cases brought against France by the application of the Law of secularism in educational institutions n.º 2004-228, where secularism, neutrality ―in the way understood by the majority―, and the religious freedom of minorities were in conflict. Naturally, these reflections are extensible to any international court of human rights that considers the possibility of applying this criterion in the framework of conventionality control.

Keywords : conventionality control; margin of state appreciation; democracy; minorities; secularism; neutrality; religious freedom.

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