Krytyka Prawa. Niezależne studia nad prawem

A Few Remarks on the Concept of Secularism and the Judgments of the European Court of Human Rights

Famulski, Tomasz

Uniwersytet Jagielloński, Wydział Prawa i Administracji

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Abstract

The article is divided into two parts. The first part discusses a certain concept of secularism, where secularism is considered to be composite of three principles: separation of church and state, freedom of religion, and equality. Subsequently, the European Convention on Human Rights is reflected upon with that concept of secularism in mind. While it does not warrant separation of church and state, freedom of religion and equality are enshrined in it. Therefore, the Convention may be considered secularist to an extent. In the second part, three of the European Court of Human Rights landmark cases are analyzed with regard to secularism. While not much can be said about Kokkinakis v. Greece on its own, the comparison with Leyla Şahin v. Turkey and Lautsi v. Italy allows to point out that appearance of secu­larism (understood as one of its components – the principle of separation) provides the Court with a possibility to defer to the doctrine of the margin of appreciation and draw the focus away from the actual violation of the principles enshrined in the Convention. Finally, it is noted that the only appearance of the concept of secu­larism as a personal conviction in the Court’s judgment is inconclusive.

Metadata

Journal Krytyka Prawa. Niezależne studia nad prawem 
Volume 11 
Issue 4 
Issue date 2019 
Type Article 
Language en
Pagination 33-50
DOI 10.7206/kp.2080-1084.340
ISSN 2080-1084
eISSN 2450-7938