Rethinking the Method and Function of Proportionality Test in the European Court of Human Rights

Journal of Human Rights (2016), vol.16, no.1, pp. 46-87

40 Pages Posted: 22 Aug 2016

See all articles by Fan Jizeng

Fan Jizeng

Sichuan University - Law School

Date Written: August 17, 2016

Abstract

Strasbourg’s application of proportionality test has some unique features. Due to the Court inherent subsidiary role, it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union (CJEU) in the complete sense. Consequently, the Strasbourg application of the proportionality has been depicted as a “mysterious house” for the reason that it lacks of certainty. Therefore, some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law. Generally, the proportionality test has two internal functions for the Strasbourg judges: (1) strike fair balance between/among the competing interests; (2) testing on the reasonableness and appropriateness between the measures employed and aim pursued. In the first category, the primary task of the Court is to protect the scope of “essence” of the Convention rights from the interference of collective goods relying on the interest-based rights theory. Beyond this scope, the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities. In some sensitive judgments, the Strasbourg Court tends to impose the onerous responsibility of “burden of proof” to the State authorities, or strategically defers to the domestic decisions unless they will be found “manifestly unreasonable”. Secondly, the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued, and then it has to decide whether a less intrusive alternative existed or will possibly be found or not. Sometimes, the Court might impose state authorities an obligation looking for a new alternation. However, due to subsidiarity characteristic of the Strasbourg Court, the task of the assessments sometimes is complicated and time-consuming, so the Court are not capable of evaluations in all occasions. Finally, the Court could strike down the “chilling consequence” caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order.

Keywords: Proportionality, Margin of Appreciation, European Court of Human Rights

Suggested Citation

Jizeng, Fan, Rethinking the Method and Function of Proportionality Test in the European Court of Human Rights (August 17, 2016). Journal of Human Rights (2016), vol.16, no.1, pp. 46-87, Available at SSRN: https://ssrn.com/abstract=2825610

Fan Jizeng (Contact Author)

Sichuan University - Law School ( email )

Chengdu, Sichuan
China

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