MEANS AND ENDS TEST AS A SUPERSESSION OF TRADITIONAL NECESSITY TEST IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS - Scientific conference
Main page
UA RU EN

Congratulation from Internet Conference!

Hello

Рік заснування видання - 2014

MEANS AND ENDS TEST AS A SUPERSESSION OF TRADITIONAL NECESSITY TEST IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

26.05.2017 13:51

[Section 2. Constitutional law. Constitutional judicial law. International law]

Author: Єліферов Дмитро Олександрович, студент 5 курсу економіко-правового факультету, Одеського національного університету імені І.І. Мечникова


The European Court of Human Rights is constantly faced with the need to evaluate the necessity of interference with the rights guaranteed by the European Convention on Human Rights, and the limits of the possible interference. In the Court’s case law, we can see that to decide, whether interference is justifiable or not, the test of necessity is used. Unfortunately, there is no structure and strict criterias for this test. On contrary, in case law of ECtHR vague criteria of “necessity in a democratic society” is used. 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 termi¬nology and a tendency to confuse and mix distinct elements of judicial review [1, p. 407]. 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.”[2, p. 38, § 62]

In the case Grinberg v. Russia, per contra, we can see more structural and clear application of the necessity test:

The test of necessity in a democratic society requires the Court to determine 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 were relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation [3, § 27].

Even though some sort of structure was added to the test of necessity, this test is still not transparent and structural enough for such supranational institution as ECtHR. In addition to this, such structural test of necessity is used quite rear and mostly in cases about violation of Article 10 of the Convention. 

Considering all mentioned above, it is clear that necessity test that is used now by The Court needs to be improved or replaced by a new one. 

We cannot but agree that application of means and ends test will benefit to the transparency and clarity of the ECtHR case law and, in addition to this, will reduce the subjectivity in decision-making process.

Among strong points of means and ends test could be mentioned next ones:

- decision will be made according to the facts of the case, s.s. what instruments were available for the state to achieve the exact goal and what one was chosen; was it effective and whether less intrusive measure was available.

- obviation of subjectivity that is now can be seen in attempts of The Court to find right balance between rights at stake.

- clarity and transparency of the aims and goals, that legislator or decision-maker has stated when using particular measure for achieving them, and, as a result, it will be easier for The Court to say whether measure was necessary and effective or not.

- application of the least-intrusive-means test as a part of means and ends test will sufficiently contribute to the courts argumentation and justification in common, as it will be clearly shown whether there were more effective and less harmful alternatives or not. 

It is necessary to point out that some aspects of the means and ends test could be found in the Court’s decisions, e.g. in the case Plon v. France The Court used test of effectiveness for deciding that it was obviously not effective to prohibit the publication of a book in which medical secrets about former president Mitterrand were revealed, since the information in the meantime was also published on the internet [4]. 

Also, case Ürper and Others v. Turkey should be mentioned as a rear example of applying least-intrusive-means test: The Court said that as there are more effective and less harmful measures to achieve the goal of preventing propaganda in favor of a terrorist organization, the PKK/KONGRA-GEL, and to constitute the approval of crimes committed by that organization and its members, than a complete ban on newspapers that had published such articles, the state went beyond any notion of “necessary” restraint in a democratic society and, instead, amounted to censorship [5, § 17].

Unfortunately, application of the means and ends test is connected with a number of difficulties. Among ones we could name: 

- it may be almost impossible to say if certain results are truly the effect of a specific choice of instrument or, rather, of the close interaction among a variety of factors [6, p. 233].

- whether The Court has to direct its attention to the expected effectiveness at the moment the measure was designed (ex tunc), or should it consider the effectiveness as it has appeared from the practical application of the measure (ex nunc) [7, p. 215].

- how The Court should measure the level of efficiency of different means available in particular circumstances.

Nevertheless, we can see a perfect example of successful application of means and ends test in German Federal Constitutional Court and the Canadian Supreme Court, as well as by supranational courts such as the Court of Justice of the EU (CJEU). In their practice we can see how different problematic aspects of this test could be solved, e.g. problem of ex tunc or ex nunc review was solved by examination whether the legislature’s prognostications were evidently wrong or clearly unreasonable at the time they were made.

In conclusion, we can see that current necessity test used by ECtHR falls below the standard of such sufficient supranational institution and it needs to be improved by application of the means and ends test. While applying this test into The Courts case law, all problematic aspects should be considered and practice of German Federal Constitutional Court, Canadian Supreme Court, Court of Justice of the EU should be taken into account for implementing balanced and efficient framework of defining necessity in every case. 

List of sources:

1. Janneke Gerards, Judicial Deliberations in the European Court of Human Rights, in The Legitimacy of Highest Courts' Rulings. Judicial Deliberations and Beyond, Nick Huls, Maurice Adams & Jacco Bomhoff eds., 2009., p. 407.

2. The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, available at: http://hudoc.echr.coe.int/eng?i=001-57584 [accessed 23 May 2017], p. 38, § 62.

3. Grinberg v. Russia. Judgment of 21 July 2005. Application No. 23472/03, available at: http://hudoc.echr.coe.int/eng?i=001-69835 [accessed 23 May 2017], § 27.  

4. Plon (Société) v. France. Judgment (Second Section) of 18 May 2004. Application no. 56148/00, available at: http://hudoc.echr.coe.int/eng?i=001-66318 [accessed 23 May 2017].

5. Ürper and Others v. Turkey, Applications nos. 55036/07, 55564/07, 1228/08, 1478/08, 4086/08, 6302/08 and 7200/08, Council of Europe: European Court of Human Rights, 26 January 2010, available at: http://www.refworld.org/cases,ECHR,4bc325162.html [accessed 23 May 2017], § 17.

6. A.W.G.H. Buijze, Effectiviteit in het bestuursrecht [Effectiveness in Administrative Law], in Nederlands Tijdschrift voor Bestuursrecht [Netherlands Journal for Administrative Law], 2009., p. 233.

7. Hans A. Linde, Due Process of Lawmaking, 55 Neb. L. Rev. 176, 1976., p. 215.



Creative Commons Attribution Ця робота ліцензується відповідно до Creative Commons Attribution 4.0 International License
допомога Знайшли помилку? Виділіть помилковий текст мишкою і натисніть Ctrl + Enter

Another articles in this section

Сonferences

Conference 2024

Conference 2023

Conference 2022

Conference 2021

Conference 2020

Conference 2019

Conference 2018

Conference 2017

Conference 2016

Conference 2015

Conference 2014

:: LEX-LINE :: Юридична лінія

Міжнародна інтернет-конференція з економіки, інформаційних систем і технологій, психології та педагогіки

Наукові конференції

Економіко-правові дискусії. Спільнота