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13 - When to Use European Consensus

Assessing the Differential Treatment of Minority Groups by the European Court of Human Rights

from Part II - Appraising European Consensus

Published online by Cambridge University Press:  04 January 2019

Panos Kapotas
Affiliation:
University of Portsmouth
Vassilis P. Tzevelekos
Affiliation:
University of Liverpool
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Summary

The use of European consensus to interpret the European Convention on Human Rights has generated criticism for, inter alia, being a tool that may disadvantage applicants belonging to minorities – a concern that is particularly relevant in Article 14 cases. The chapter argues that the weight the Court places on European consensus in such discrimination cases has been inconsistent. While in some cases the Court takes full advantage of the flexibility of the consensus tool to reinforce the minority status of the applicants and to narrow the margin of appreciation, in others, the existence or lack of consensus is seemingly the sole determining factor to the outcome of the application. The chapter employs the case law on discrimination against Roma as an example of the former approach, and same-sex marriage cases as evidence of the latter. After comparing these two approaches and identifying the inconsistencies in the application of consensus, the paper argues that the relationship between consensus and the minority status of the applicant must be better defined and more consistently applied across judgments that relate to minorities.
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Building Consensus on European Consensus
Judicial Interpretation of Human Rights in Europe and Beyond
, pp. 283 - 310
Publisher: Cambridge University Press
Print publication year: 2019

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