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11 - Justification of Restrictions III – Necessity, Proportionality and Fair Balance

Published online by Cambridge University Press:  03 June 2023

Janneke Gerards
Affiliation:
Universiteit Utrecht, The Netherlands
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Summary

For a restriction of a Convention right to be justified, it is not enough for it to have a sound legal basis and to pursue a legitimate aim. Restrictions of derogable Convention rights also must be shown to be ’necessary in a democratic society’ or ’proportionate’. Over time the Court itself has also defined a variety of specific tests and formulas to give shape to the tests of necessity and proportionality, which are all addressed in this chapter. The general test of necessity is explored first, paying special attention to the related pressing social need test, the ’relevant and sufficient’test and the least intrusive means test. Furthermore, the chapter discusses the fair balance test (a variant of proportionality in the strict sence) and some related tests, such as the individual and excessive burden test and core rights review. Attention is also paid to the related question of whether balancing should always be conducted on an individual and concrete basis on the national level, or whether blanket rules may sometimes suffice. Lastly, it is explored how procedural review can complement the Court’s substantive reasonableness review of restrictions.

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Publisher: Cambridge University Press
Print publication year: 2023

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References

Further Reading

Arai-Takahashi, Y. (2002). The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia)Google Scholar
Brems, E. and Lavrysen, L. (2015). ‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights. Human Rights Law Review, 15, 139Google Scholar
Çalı, B. (2007). Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions. Human Rights Quarterly, 29, 251–70CrossRefGoogle Scholar
Christoffersen, J. (2009). Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Leiden/Boston: Martinus Nijhoff Publishers)Google Scholar
Eissen, M.-A. (1993). The Principle of Proportionality in the Case-Law of the European Court of Human Rights. In Macdonald, R.St.J., Matscher, F. and Petzold, H (eds.), The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff), p. 126–46Google Scholar
Gerards, J. H. (2013). How to Improve the Necessity Test of the European Court of Human Rights. International Journal of Constitutional Law, 11, 466–90Google Scholar
Gerards, J. H. (2014). The European Court of Human Rights and the National Courts – Giving Shape to the Notion of ‘Shared Responsibility’. In Gerards, J.H. and Fleuren, J.W.A. (eds.), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case Law: A Comparative Analysis (Antwerp: Intersentia)Google Scholar
Gerards, J. H. (2017). Procedural Review by the ECtHR – A Typology. In Gerards, J.H. and Brems, E. (eds.), Procedural Review in European Fundamental Rights Cases (Cambridge University Press), pp. 127–60Google Scholar
Huijbers, L. M. (2017). The European Court of Human Rights’ Procedural Approach in the Age of Subsidiarity. Cambridge International Law Journal, 6, 177201Google Scholar
Leijten, A. E. M. (2018). Core Socio-Economic Rights and the European Court of Human Rights (Cambridge University Press)CrossRefGoogle Scholar
Mowbray, A. R. (2010). A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights. Human Rights Law Review, 10, 289317Google Scholar
Örücü, E. (1986). The Core of Rights and Freedoms: The Limit of Limits. In Campbell, T. et al. (eds.), Human Rights: From Rhetoric to Reality (Oxford: Blackwell), pp. 3759Google Scholar
Popelier, P. and Van De Heyning, C. (2013). Procedural Rationality: Giving Teeth to the Proportionality Analysis. European Constitutional Law Review, 9, 230–62Google Scholar
Smet, S. (2017). Resolving Conflicts Between Human Rights: The Judge’s Dilemma (Abingdon: Routledge)CrossRefGoogle Scholar
Smet, S. and Brems, E. (eds.) (2017). When Human Rights Clash at the European Court of Human Rights: Conflict or Harmony? (Oxford University Press)Google Scholar
Van der Schyff, G. (2008). Cutting to the Core of Conflicting Rights: The Question of Inalienable Cores in Comparative Perspective. In Brems, E. (ed.), Conflicts Between Fundamental Rights (Antwerp/Oxford/Portland: Intersentia)Google Scholar

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