The margin of appreciation and the proportionality principles in the ECtHR’s Case Law: some lessons from Handyside

This contribution analyzes the doctrine of the margin of appreciation and the judgment of proportionality of the ECtHR concerning the relationship between freedom of expression and the protection of religious sentiment. The analysis of ECtHR case-law highlights some critical issues relating to the risk for States parties to circumvent the obligations stemming from the Convention.
Every practical solution emerging from ECtHR jurisprudence reflects the different postures of the society towards the freedom of individuals. Thus, from mere negative liberty, freedom of religion turned into positive freedom, that is, in the claim to the active protection of the religious sentiment, up to prevail over freedom of expression.