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When Human Rights Clash at the European Court of Human RightsConflict or Harmony?$
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Stijn Smet and Eva Brems

Print publication date: 2017

Print ISBN-13: 9780198795957

Published to Oxford Scholarship Online: August 2017

DOI: 10.1093/oso/9780198795957.001.0001

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Reversibility, Proportionality, and Conflicting Rights

Reversibility, Proportionality, and Conflicting Rights

Fernández Martínez v. Spain

(p.218) 11 Reversibility, Proportionality, and Conflicting Rights
When Human Rights Clash at the European Court of Human Rights

Ian Leigh

Oxford University Press

This chapter develops a test (the ‘reversibility test’) for resolving clashing rights cases where limitations of Convention rights for the protection of the ‘rights and freedoms of others’ are at stake. It demonstrates how the reversibility test operates in the context of the conflict between religious autonomy and the right to respect for private and family life under Articles 9 and 8 of the European Convention on Human Rights and why it is preferable to either definitional or ad hoc balancing between these rights. A critical analysis of the European Court of Human Rights’ Grand Chamber decision in Fernández Martinez v. Spain substantiates the utility and strengths of the test and shows how it vindicates the reasoning in the Court’s minority judgment.

Keywords:   religious autonomy, privacy, conflicting rights, reversibility, ad hoc balancing, definitional balancing, European Court of Human Rights, ECtHR, Fernández Martinez v. Spain

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