A teoria da margem de apreciação nacional: a problemática da universalização e da relativização dos direitos humanos

Abstract

The theory of national discretion corresponds to a jurisprudential mechanism developed by the European Court of Human Rights, starting in the 1970s, where a margin of preference was recognized in favor of the State (national judge) for the regulation of certain matters in its territory (such as public morality, definition of the structure of the country's educational system, for example) when compared to an international judge. The justification for its application by the European Court is that for such matters the public entity would be more aware of the needs and peculiarities of its people, which is why it could better decide how to deal with such matters due to its position. Thus, the first mention of this theory occurred during the “Engel and Others v. Netherlands” trial (1976), receiving the initial name of “margin of maneuver”. It was only in 2021 that the theory of national discretion was typified in the European Convention on Human Rights of 1950, through Protocol No. 15 to said international diploma. However, from 1976 (date of the first judgment) until 2021, the resulting decisions (“Engel and Others v Netherlands”, “Handyside v United Kingdom” [1976], “Sunday Times v United Kingdom” [1979], “Cossey v United Kingdom” [1990], “Goodwin v United Kingdom” [2002] and “Konrad v Germany” [2006]) from the application of the margin theory by the European Court of Human Rights ended up promoting the universalization or relativization of human rights, according to how the European Court carried out the examination of the proportionality of the limitation of the right by the State, as well as the legal consequences resulting from such restriction, since based on the examination of this proportionality the European Court decided on the application (in whole or in part) or the departure of the theory cited in each specific case. It is also important to note that the study of the theory of the margin of national appreciation is quite current, since it has even been mentioned in the inter-American system of human rights protection since 1984, despite the fact that the margin of maneuver has not yet been classified in the American Convention on Human Rights (1969). Therefore, the theory of the margin is not an isolated reality that only belongs to the European human rights system. Thus, the central problem of this dissertation is: does the use of the theory of the margin of national appreciation end up promoting the universalization or relativization of human rights? In this sense, the objective of the work was to identify whether the use of the aforementioned theory, in the six aforementioned judgments of the European Court of Human Rights, promoted the universalization or relativization of such rights in accordance with the legal consequences listed? Thus, to achieve this objective, a deductive method was used to identify the legal consequences resulting from each of these six judgments made by the European Court, allowing us to determine, in the end, whether each judicial decision promoted the universalization or relativization of the human rights established.