Proporcjonalność i fair balance w orzecznictwie Europejskiego Trybunału Praw Człowieka

Abstrakt

The principles of proportionality and fair balance can be said to permeate the whole process of the Convention’s interpretation. Although in the light of the ECtHR’s rulings it often seems that these principles overlap, in this study the Author proposes to treat them separately. According to the approach proposed by the Author, the principle of a proper balance should be recognized as a more fundamental principle which refers to the fundamental tensions accompanying the application of ECHR provisions. On the other hand, the principle of proportionality should be perceived in a strict sense, in the context of the relationship between the pursued objective and the means used to achieve this goal.

The criticism concerning the application of both principles is connected with the apparent lack of consistency on the part of the Strasbourg Court, which is manifested in particular in the rejection of the so-called less restrictive measures. The ECtHR, which seems to be evolving towards being the constitutional court of Europe, should use such important principles in a prudent and consistent manner, on the basis of the principles on which the entire ECHR system is based. It is therefore up to the Strasbourg Tribunal to give both principles such importance in the process of applying and interpreting the Convention as they deserve.

The balancing process often plays a key role in the reasoning of the ECtHR included in the justifications of its rulings. in the face of the seemingly inevitable antinomies and related dilemmas faced by the ECtHR while applying the Convention and developing European human rights standards, the principles discussed by the Author can be perceived as one of the basic instruments to strike the right balance between competing interests. They can therefore be included in the guiding principles of the ECHR.