National margin of appreciation, freedom of religion and crucifixes (or the consequences of a poor dialogue among jurisdictions)

Abstract

The use by the Spanish Constitutional Court of the jurisprudence of the European Court of Human Rights may raise some criticism when the result is the reduction of the level of protection given to a fundamental right according to the domestic constitutional system. This may be the case of STC 34/2011, grounded on ECtHR judgment in Lautsi II, but without taking into account that it relies on the Member State’s margin of appreciation and that the ECHR only provides a minimum standard of protection. In opposition to that line of reasoning, the negative side of religious freedom and the neutrality of the State in religious matters are emphasized as relevant domestic constitutional arguments to analyze the presence of crucifixes on state school walls in Spain.