One area of fundamental rights that is riddled with ‘conflicting interests’ is that of free expression. Within the context of religion, for example, criticism of religion may be in conflict with religious believers’ interests of not being insulted in their deeply held beliefs, or the state’s interest in preserving societal peace. The ECtHR has upheld a number of convictions by national courts over blasphemous expression. The Court has found certain blasphemy convictions by national authorities compatible with article 10 of the ECHR. The latest of such convictions was upheld in October 2018 in the case of E.S. v. Austria. This paper will critically examine the Court’s approach to blasphemy.
On what grounds does the legal order attach rights to something as ambiguous and unprovable as religion and belief? The balance between the considerable significance of being able to express freely satirical criticism of religions, religious dogmas, and institutions, and the scope of the freedom of religion or belief is delicate. What actions must the legal subject take in order to claim rights with a religious object? There is an important call on the legal order to indicate the scope of the legal concept of religion within the meaning of Article 9 ECHR.
The rule of law has to offer a remedy for clashes of interests between individuals. However, the function of the rule of law is influenced by social factors, which depends on the specific characteristics of the society wherein it functions. For accessing the rule of law, individuals need specific means in order to resolve disputes arising from these clashes of interests. In reality, not every individual has the same starting position and may lack the means to access the rule of law, which may result in a dysfunctional rule of law. Introducing human rights and positive state obligations may be a solution to the thresholds that individuals face in protecting their interests.
Mutual trust implies the EU Member States trusting one another in complying with their obligations under EU law. It is widely considered to be vital to, amongst others, the EU system distributing responsibility for asylum applications. However, this presumption is often rebutted based on fundamental rights. Especially in asylum law, a tension exists between the fundamental rights of individuals and the proper functioning of the asylum system. In order to better understand the principle of mutual trust in light of those clashing interests, this paper delves deeper into the way fundamental rights act and should act as a safety valve to mutual trust.