Atıf Sayısı
7
Görüntüleme
53
İndirme
22
This article examines the role of the margin of appreciation doctrine, which is developed by the European Court of Human Rights and used in determination of the obligations of the contracting States arising from the Convention, in the case-law of the Court. Having discussed the emergence and legitimacy of the doctrine, the role of it in each of the five stages where the Court examines whether there is a violation of a Convention right has been scrutinized. These stages are; a) whether there is a right and an interference with it? b) is there positive obligations of the contracting state? c) is interference lawfull? d) does interference have a lagitimate aim? e) is interference necessary? In this analysis it has been discussed whether the role attributed to the margin of appreciation doctrine by ECtHR is correct on the basis of Dworkin’s theoretical framework about the role of judge in hard cases. Article concludes that margin of appreciation doctrine can be functional only if political questions are distinguished from legal issues. Accordingly, a decision about whether a right is in the scope of the Convention is a legislative issue, that is, it has a political nature and there is a room for the doctrine in this area. On the other hand, a decision about how far a right can be interfered is a legal problem and the Court should establish universal standards
this article is the role of the margin of hopefully which is developed by the european court of human beings and used in difficulties of the agreement of the contracting states described in the diplomacy in the caselaw of the court experience of hands and legitimacy of the role of the role of the role of each of the five stages where the court examinations is there is a violation of a contract has been scrutinized these steps there is no reason for the right and an interference with the push bout of force of the force of failure to return to the decision of the decision of the decision of the decision of the decision of the threat of the threat of the decision of the threat of the threat of the threat of the threat of the decision of the threat of the threat of the threat of the threat of the threat of the threat of the threat of the threat of the decision of the decision of the threat of the threat of the threat of the threat of the threat of the threat of the decision of the threat of the threat of the threat of the threat of the threat of the threat of the threat of the threat of the decision of the threat of the threat of the decision of the threat of the threat of the threat of the threat of the threat of
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