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improve the necessity test of the European Court of Human Rights...

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© The Author 2013.

Oxford University Press and New York University School of Law.

All rights reserved.

For permissions,

please e-mail: [email protected]

How to improve the necessity test of the European Court of Human Rights Janneke Gerards*

According to the case law of the European Court of Human Rights,

interferences with rights protected by the European Convention on Human Rights can only be accepted if there is a proportionate relationship between the interference and its legitimate objectives,

if they are “necessary in a democratic society.” The Court has given shape to this test by developing standards such as that of the existence of a “pressing social need” and of “relevant and sufficient” reasons.

However,

these standards appear to be rather vague,

and the Court’s case law on the test of “necessity” lacks transparence.

For that reason,

this article proposes the introduction of the more classic three-part test of proportionality in the Court’s case law.

The article focuses on the use the Court might make of two particular elements of this test,

the test of suitability and the least-restrictive-means test.

If applied correctly,

the systematic application of these tests can contribute to the clarity and persuasiveness of the Court’s reasoning.

Best known in this respect are the justification clauses of Articles 8–11 of the Convention,

which stipulate that limitations on the rights contained in these Articles are justifiable if they are “necessary in a democratic society” for the protection of one of the enumerated public policy interests.

Other provisions of the Convention do not contain such express justification clauses,

Janneke Gerards is professor of fundamental rights law,

Radboud University of Nijmegen,

Email: [email protected] This article was written within the framework of the research project Judicial reasoning in fundamental rights cases—National and European perspectives,

funded by the Netherlands Organisation of Scientific Research (NWO-Vidi).

Aileen McHarg,

Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights,

62 Mod.

L. Rev.

I•CON (2013),

11 No.

How to improve the necessity test of the European Court of Human Rights

European Court of Human Rights (ECtHR or the Court) has read an implicit possibility for justification into these Articles.2 The various possibilities for justification have one important element in common— according to the case law of the ECtHR,

there must always be a proportionate relationship between the aims pursued by the interference and the Convention right at stake.3 Indeed,

the Court has held that the requirement of proportionality is inherent in the Convention as a whole.4 Yet,

a close analysis of the application of the test of “necessity in a democratic society” by the ECtHR discloses a rather nontransparent use of terminology and a tendency to confuse and mix distinct elements of judicial review.5 This may not be surprising,

given the rather extraordinary definition the Court has given to the notion of “necessity in a democratic society” in the Sunday Times case: It must .

be decided whether the “interference” complained of corresponded to a “pressing social need,” whether it was “proportionate to the legitimate aim pursued,” [and] whether the reasons given by the national authorities to justify it are “relevant and sufficient.”6

The “pressing social need” requirement mentioned in this formula seems to concern the weight and importance of the aims pursued: it is not sufficient that the interests served by a limitation of a Convention right are legitimate,

they should also be “pressing.” Next to this,

the formula seems to contain some requirement of effectiveness,

since a measure or decision has to “correspond” to its aims.7 Moreover,

if a measure does not substantially contribute to the achievement of a certain goal,

the reasons for introducing it will probably not be “relevant and sufficient.” And finally,

the formula mentions a proportionality requirement,

although the Court does not explain how this requirement should relate to the test of a pressing social need.

Even though classic elements of proportionality review (suitability,

and a reasonable balance between the interests concerned) might be read into the formula,8

See further Yutaka Arai,

The System of Restrictions,

in Theory and Practice of the European Convention on Human Rights 343 (Pieter van Dijk et  al.

4th ed.

Fair Balance: Proportionality,

Subsidiarity and Primarity in the European Convention on Human Rights 78 (2009).

Marc-André Eissen,

The Principle of Proportionality in the Case-Law of the European Court of Human Rights,

in The European System for the Protection of Human Rights 125,

J. Macdonald et  al.

1993)

Les contraintes de l’interprétation juridictionelle—les méthodes d’interprétation de la Convention Européenne [Constraints of judicial interpretation—methods of interpretation of the European Convention],

in L’interprétation de la convention Européenne des droits de l’homme [Interpretation of the European Convention of Human Rights] 15,

1998)

Christoffersen,

Soering v.  UK 161 Eur.

A) § 89 (1989) and,

Sporrong and Lönnroth v. Sweden 52 Eur.

A) § 69 (1982).

Janneke Gerards,

Judicial Deliberations in the European Court of Human Rights,

in The Legitimacy of Highest Courts’ Rulings.

Judicial Deliberations and Beyond 407,

Maurice Adams & Jacco Bomhoff eds.,

2009)

What’s Wrong with the European Convention on Human Rights

Sunday Times (I) v. UK 30 Eur.

§ 62.

Michael Fordham & Thomas de la Mare,

Identifying the Principles of Proportionality,

in Understanding Human Rights Principles 27,

2001).

Oliver De Schutter & Françoise Tulkens,

Rights in Conflict: The European Court of Human Rights as a Pragmatic Institution,

in Conflicts between Fundamental Rights 169 (Eva Brems ed.,

2008).

I•CON 11 (2013),

466–490

they are not explicitly mentioned.

The reasons for this are not clear.

It may be that the Court wanted to give an autonomous definition to the Convention’s “necessity” requirement,

but it did not explain why it chose precisely this formula and these requirements.

Moreover,

although the formula seems to be intended as a list of standards to be used in subsequent cases,

the Court does not consistently use the formula in its judgments.9 The requirement of relevant and sufficient reasons is often not apparent,

and its concrete meaning has remained obscure.10 In many other cases,

the Court merely reviews the overall balance of interests that has been struck by the national authorities.11 As a result,

the test of necessity in a democratic society seems to be more important as a rhetorical device than as an instrument that can help the Court to structure its argumentation.12 The lack of clarity as to the tests and standards used by the Court to examine the reasonableness of a justification is problematic.13 Within the framework of the Convention,

the Court has two important functions.

First,

it may check national decisions and legislation for mistakes in order to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention,” and thus to provide effective protection of Convention rights.14 Second,

the Court may provide interpretative guidance to the national authorities in order to help them carry out their primary task of safeguarding fundamental rights.15 If the Convention standards are clear,

the national courts and decision-making bodies can implement them in order to prevent future violations.16 Thus,

the Convention system requires close cooperation between the national authorities and the ECtHR.17 However,

national authorities may only be willing and able to mirror the Court’s interpretative approach if the Court’s reasoning itself is sufficiently clear,

and persuasive.18 If the Court’s tests,

or standards are confused or lack clarity,

national courts are less likely to adopt them as their own.19

11 12

14 15

Sébastien Van Drooghenbroeck,

La proportionnalité dans le droit de la convention Européenne des droits de l’homme [Proportionality in the Law of the European Convention on Human Rights] 83 (2001).

H. Gerards,

Judicial Review in Equal Treatment Cases (2005) 151 n. 207 and Yutaka Arai-Takahashi,

The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR 87 (2002).

The case of Vörðor Ólafsson v. Iceland,

available at http://www.echr.coe.int/eng,

§§ 77–78,

Van Drooghenbroeck,

Arai-Takahashi,

Marina Eudes,

La pratique judiciaire interne de la cour Européenne des droits de l’homme.

Steven Greer,

“Balancing” and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate,

ECHR,

Article 32 § 1 of the Convention and cf.

Rantsev v. Cyprus and Russia (7 January 2010,

available at http://www.echr.coe.int/eng),

§ 197.

Luzius Wildhaber,

A Constitutional Future for the European Court of Human Rights

23 Hum.

Laurence R. Helfer,

Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime,

19 Eur.

J. Int’l L.

Helfer,

See also Conor Gearty,

The European Court of Human Rights and the Protection of Civil Liberties,

97 (1993).

Lord Lester of Herne Hill,

Universality versus Subsidiarity: A Reply,

L. Rev.

81 (1998).

How to improve the necessity test of the European Court of Human Rights

This might result in a lower level of protection of fundamental rights on the national level and,

a high number of applications to reach the Court.20 Hence,

there is good reason to look for improvement in the ECtHR’s application of the test of “necessity.” Such improvement could be achieved if the Court would make more systematic use of the three-part test of proportionality as it has been developed and used by national courts—such as the German Federal Constitutional Court21 and the Canadian Supreme Court22—as well as by supranational courts such as the Court of Justice of the EU (CJEU).23,24 The three parts of the “classic” proportionality test are the requirement of effectiveness or suitability,

and the requirement of proportionality in the strict sense.25 The first two elements are concerned with the relationship between the aims of a measure and the means or instruments that have been chosen to achieve these aims.26 If an interference with a right proves to be unsuitable or superfluous,

either because the aims pursued cannot be achieved by it in any case,

or because less intrusive means were available,

there is no good reason to sustain such an interference.27 The third requirement,

that of proportionality in the strict sense,

concerns the relationship between the interests at stake.

It requires that a reasonable balance should be achieved among the interests served by the measure and the interests that are harmed by introducing it.

The ECtHR tends to focus on the third requirement,

stressing consistently that the search for a fair balance is inherent to the Convention.28 Nevertheless,

for the purposes of this article,

the Court’s balancing review is of lesser interest,

especially since national courts will be well acquainted with the requirement of a fair balance.

More interesting from the perspective of improving the Court’s “necessity test” is the application of a test of means and ends,

more specifically: a test of effectiveness and a test of necessity or “least restrictive means.” Although these tests are sometimes apparent in the Court’s Lord Lester of Herne Hill,

In more detail,

Hirschberg,

Der Grundsatz der Verhältnismässigkeit [The Principle of Proportionality] (1981)

Schlink,

Abwägung im Verfassungsrecht [Balancing in Constitutional Law] (1976)

Robert Alexy,

A Theory of Constitutional Rights (Julian Rivers trans.,

2002).

22 See,

R v. Oakes [1986] 1 S.C.R.

§§ 66–71 (Can).

See further,

Pamela A. Chapman,

The Politics of Judging: Section 1 of the Charter of Rights and Freedoms,

883 (1986)

Sidney R. Peck,

An Analytical Framework for the Application of the Canadian Charter of Rights and Freedoms,

Sujit Choudry,

So What Is the Real Legacy of Oakes

? The Decades of Proportionality Analysis under the Canadian Charter’s Section 1,

34 Sup.

L. Rev.

Tom Hickman,

Proportionality: Comparative Law Lessons,

12 Jud.

23 See,

Takis Tridimas,

The General Principles of EC Law (2d ed.

Der Grundsatz der Verhältnismäβigkeit in der Rechtsprechung des Gerichtshofs der Europäische Gemeinschaften [The Principle of Proportionality in the Case Law of the European Court of Justice] (2003).

for a more theoretical underpinning,

25 See,

Christoffersen,

26 Cf.

27 Cf.

Gerards,

Denise G.  Réaume,

Limitations on Constitutional Rights: The Logic of Proportionality,

University of Oxford Legal Research Paper Series,

Paper No.

26/2009,

available at http:// ssrn.com/abstract=1463853 at 10.

See also Martin Shapiro,

The Giving Reasons Requirement,

Legal F. 179,

20 21

I•CON 11 (2013),

466–490

reasoning,29 they do not currently form a standard part of the test of justification.30 The argument made in this article is that the clarity and transparency of the Court’s case law could be improved if it would apply a means–ends test on a structural basis.

This article starts by giving some insight into the value and meaning of the means– ends test and its two distinct elements: the test of suitability and the test of necessity (Section 2).

It then delves deeper into the way in which the ECtHR might apply these tests in its case law.

The two separate elements of the tests are analyzed in Sections 3 and 4,

searching for practical difficulties in their application,

as well as for workable solutions.

For the purposes of this analysis,

use is made of legal-theoretical literature and of case law of constitutional and supranational courts that have applied the tests on a more structural basis than the ECtHR.

In particular,

inspiration is drawn from the German Constitutional Court,

Finally,

the findings of the preceding sections are taken together in order to demonstrate the potential importance and applicability of the means–ends test as a structural part of the ECtHR’s test of necessity.

the means–ends test concentrates on the allegedly harmful act itself.31 Starting from the knowledge that this act has interfered with individual rights and interests to the extent that it has given rise to a case before the ECtHR,

the test questions the reasons given for the choice of precisely this instrument.

National decision-makers (legislators as well as administrative bodies) have a range of means and instruments at their disposal to achieve certain results,

regardless of the value and desirableness of the results as such.32 From this range of possibilities they may choose the instrument they consider the most appropriate and cost-effective.

However,

the test of means and ends implies that the decision maker may not make any choice.33 He must take account of any negative consequences of a certain choice of means for fundamental rights.

It would be clearly unreasonable if an instrument would only harm Convention rights,

without actually being able to benefit anyone or to achieve the desired results (test of effectiveness).34 From the same perspective of reasonableness,

it would be difficult to accept that highly intrusive measures were chosen if other,

less harmful means were available (test of necessity or least-intrusive-means test).35 For some rare examples,

Limitation of Rights.

A Study of the European Convention and the South African Bill of Rights (2005) 232 and with Van Drooghenbroeck,

30 See,

Gerards,

Christoffersen,

Van Drooghenbroeck,

31 Cf.

Christoffersen,

32 Cf.

Réaume,

33 Cf.

Ian Turner,

Judicial Review,

Irrationality and the Review of Merits,

40 (2006).

Réaume,

Alexy,

How to improve the necessity test of the European Court of Human Rights

An example from the ECtHR’s case law may serve to illustrate the difference between the means-ends test and balancing review.

The case of Soltsyak v. Russia36 concerned a Russian serviceman who had worked with top-secret information.

When he retired from his job,

his travel documents were taken away and his passport was suspended in order to prevent him from travelling abroad.

According to the Russian government,

the reason for this interference with Soltsyak’s freedom of movement (protected by Article 2 of Protocol No.

The Court found,

that the travel ban could hardly be considered an effective or a necessary means to achieve these aims: .

[T]he confidential information which the applicant possessed could be transmitted in a variety of ways which did not require his presence abroad or even direct contact with anyone.

The applicants’ status as a military serviceman .

[does] not alter the conclusion that the restriction failed to achieve the protective function that had been previously assigned to it.

This finding of the Court does not relate to the fairness of the balance struck between the individual interest at stake (the serviceman’s freedom of movement) and the interests advanced by the government (the protection of the confidentiality of top-secret information).

Instead,

it is related to the effectiveness of the chosen means—the travel ban.

Imposing the ban simply did not make sense,

as there are many more ways of disclosing confidential information than by travelling abroad and telling people,

especially in modern times of internet and mobile phones.

From the perspective of reasonableness,

it is fully understandable that such an ineffective measure is not accepted.

In the Soltsyak case,

the test of means and ends allowed the ECtHR to examine the justification advanced for a specific element of reasonableness,

its suitability.38 Had the Court only concentrated on the reasonableness of limiting a serviceman’s freedom of movement in order to protect top-secret military information,

it might well have found that a reasonable balance was struck between these interests.

If only for the reason that the test allows for review of particular elements of reasonableness,

in addition to the fairness of the balance struck between competing interests,39 the Court should apply the test in each individual case,

instead of only mentioning it in rare cases such as Soltsyak.

An additional reason for structural application of a means–ends test may be found in the complexities related to balancing review.

Balancing review is often criticized for its risk of subjective and opaque decision making.40 Arguably,

the test of means and Soltsyak v. Russia (February 10,

2011,

available at http://www.echr.coe.int/eng).

Soltsyak,

§§ 52–53.

Francis D. Wormuth and Harris G. Mirkin,

The Doctrine of the Reasonable Alternative,

255 (1964)

Guy Miller Struve,

The Less-Restrictive-Alternative Principle and Economic Due Process,

80 Harv.

L. Rev.

1463,

Robert M. Bastress,

The Less Restrictive Alternative in Constitutional Adjudication: An Analysis,

A Justification,

27 Vand.

L. Rev.

Alexy,

40 See,

Jürgen Habermas,

Between Facts and Norms.

Contributions to a Discourse Theory of Law and Democracy 259 and 430 (1996)

Julian Rivers,

Proportionality and Variable Intensity of Review,

190 (2006)

John Alder,

The Sublime and the Beautiful: Incommensurability and Human Rights,

Public Law 697 (2006).

36 37

I•CON 11 (2013),

466–490

ends is less normative or subjective in character than a balancing test,

and its application can result in neutral and objective judicial argumentation.41 It is sometimes contended,

that it is relatively easy for courts to establish on the facts of a case if a measure is effective,

or if other options were available that might have been less intrusive.42 If the means–ends test would offer the ECtHR a strong instrument to demonstrate that its decisions are fact-based and empirical in character,

this might improve the persuasiveness of its reasoning,

and it might result in more disciplined judgments.43 At present,

the Court frequently resorts to “re-balancing” the interests at stake.

It looks at the interests that have been taken into account on the national level,

and it then determines for itself which of these interests really should have prevailed.44 This can be considered a rather intrusive practice by the Court,

which interferes heavily with national decision-making processes and with the exercise of discretionary powers.

It may also be difficult for the Court to value national sensitivities or discern the problems that have been taken into account by the national decision-making bodies.

To a certain extent,

the Court has solved these balancing problems by applying its margin-of-appreciation doctrine,

which allows it to show deference toward the national authorities in cases where they are clearly better placed to strike a balance between competing interests.45 Nevertheless,

the difficulties related to balancing review could be avoided entirely if the Court did not need to apply such a test altogether.

In some cases,

balancing may be avoided by applying a means–ends test.

If the Court found,

on the basis of empirical data,

that the means chosen were inadequate or unnecessary,

there would be no need for it to investigate whether,

the legislature or the administration found a reasonable balance.

Only if the chosen means appeared to be both adequate and necessary to achieving the ends pursued,

would there be a need for balancing review.

This means that the test of means and ends provides an important and valuable complement to proportionality in the strict sense.46 Christoffersen,

Hirschberg,

Gerald Gunther,

Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,

86 Harv.

L.  Rev.

21 (1972)

Note: Legislative Purpose and Federal Constitutional Adjudication,

83 Harv.

L.  Rev.

1887,

42 Cf.

R.  von Krauss,

Der Grundsatz der Verhältnismässigkeit in seiner Bedeutung für die Notwendigkeit des Mittels im Verwaltungsrecht [The Meaning of Proportionality for the Necessity of the Choice of Means in Administrative Law] 63 (1955)

Note,

Gunther,

Schlink,

Hirschberg,

Christoffersen,

See also Rivers,

43 Cf.

Dieter Grimm,

Proportionality in Canadian and German Constitutional Jurisprudence,

57 U.

Toronto L.J.

44 See,

Von Hannover v. Germany (2004-VI Eur.

H.R.)

Privacy Rights in Conflict: In Search of the Theoretical Framework behind the European Court of Human Rights’ Balancing of Private Life Against Other Interests,

in Conflicts between Fundamental Rights 39,

2008).

45 See,

Janneke Gerards,

Pluralism,

Deference and the Margin of Appreciation Doctrine,

17 Eur.

Wormuth & Mirkin,

Miller Struve,

Bastress,

Alexy,

How to improve the necessity test of the European Court of Human Rights

The advantages of the test will only be manifest,

if it is applied in a sound manner,

and if sufficient awareness is shown of the difficulties connected to it.

These difficulties,

as well as possible solutions to overcome them,

are analysed in Sections 3 and 4 of this paper.

Section 3 is devoted to the test of effectiveness or suitability,

while Section 4 focuses on the separate test of necessity or subsidiarity.

any interference with a Convention right must be constituted by a means that is capable of realizing the aim or end of the interference.47 To give some practical examples from the ECtHR’s case law: the requirement to remove one’s headgear (including religious apparel,

such as a turban or a headscarf) at an airport security check may be aimed at protecting the safety of the passengers or to combat terrorism

the means (requirement to remove headgear

seizure of a publication) stands in a causal relationship to the aims pursued (public or passenger safety

need to safeguard public order and quiet).

The test of effectiveness seems to be rather straightforward

use of common sense enables one to realize that a certain measure simply cannot be effective.

In fact,