Proportionality and the European Convention on Human Rights. A critical view

Table of Contents

1. Introduction

2. The principle of proportionality and its dimensions
2.1. Proper purpose
2.2. Adequacy
2.3. Necessity
2.4. Proportionality stricto sensu (Law of Balancing)

3. Application of the proportionality doctrine in the case law of the ECtHR

4. Pathologies of proportionality
4.1. Connection between proportionality and human rights
4.2. The criticism on proportionality
4.2.1. The inherent moral nature of human rights
4.2.2. The issue of incommensurability
4.2.3. Wound to the whole concept of Constitution

5. Conclusion

Abstract

Human rights cases gain gradually ground in the European legal scene and judges invent solutions in order to tackle with their intricacies. Through balancing the conflicting human rights either against each other or against public interests, proportionality has been elevated as a basic principle of interpretation of the European Convention on Human Rights. The paper examines whether resorting to proportionality every time a human rights dispute arises is methodologically sound and discusses the drawbacks of its repeated invocation. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes and suggests that courts should instead focus on the real moral issues underlying such disputes.

1. Introduction

Human rights law refers to the developing field of International and European law which protects all living human persons - irrespective of their religious, national, ethnical, racial or other distinguishing identity - primarily from unlawful and arbitrary actions performed by states. The inherent moral nature of human rights,^[1] in conjunction with their high priority (or weight)^[2] and the complex normative content of most of them, makes the adjudication of cases involving competing human rights a really demanding and tough judicial task.

In order to resolve ‘rights v. rights’ or ‘rights v. collective goals’ conflicts, it is a common strategy for judges to balance^[3] human rights either one against the other or against competing public interests.^[4] Balancing in the form of proportionality has been elevated as a basic principle of interpretation and a method of adjudication within the European Convention on Human Rights and as a basic constitutional principle in many countries, as well.^[5] Nowadays, the principle of proportionality is applied widely by constitutional courts all around the world as a mechanism that aims at guaranteeing the full respect of human rights by the State.

However, controversy surrounds the issue of whether the proportionality doctrine has indeed a profound significance in resolving human rights disputes. On the one hand, some theorists argue that proportionality provides judges the required flexibility so as to balance the competing interests on a case-by-case basis. Moreover, they point out that among the greatest advantages of the doctrine of proportionality are objectivity, rationality, transparency and legitimacy.^[6] On the other hand, though, some jurists oppose to the wide application of proportionality in cases concerning human rights conflicts since they consider, inter alia, that proportionality not only neglect the intrinsic nature of human rights but also results in arbitrary judicial decisions since unregulated judicial discretion prevails.^[7]

It is therefore of particular importance and interest to deal with the question of proportionality especially in the field of the European Convention on Human Rights (hereinafter called the ECHR). In the following developments, the different views about proportionality and its utility in the domain of the ECHR will be analyzed and discussed. Specifically, attention will be given to the coherence of the solutions offered by the application of this doctrine.

In particular, it will be argued that the principle of proportionality is incompatible with the fundamental ethical nature of human rights since it leads the judges to ignore the distinct substance of each right. Although the method of balancing the advantages and the disadvantages of the available choices seems to be a rational method of resolution,^[8] judges invoke proportionality as a way to bypass the moral issues arisen and, hence, they tend to express the reasoning of their opinions in a neutral language. This deficiency of proportionality is implied in the fact that the decisions which are relied on balancing can no longer be considered right or wrong but only as adequate or inappropriate.^[9]

Moreover, it will be advanced that proportionality offers no vital help by virtue of lack of a common denominator. In other words, the conflicting interests and principles are incommensurable, namely things with no common standard cannot actually be balanced.^[10] Besides, the metaphor, which lies behind the balancing procedure,^[11] says nothing about how the interests in question are to be weighed and whether the conflicts of various rights can indeed be resolved following a technical and quantitative measure “similar to that of weighing apples and oranges.”^[12] Furthermore, other aspects of the criticism against the validity of proportionality (e.g. whether proportionality does harm the Constitution) will be addressed and the arguments supporting them will be examined.

In order to tackle with the questions raised by the doctrine of proportionality in the ECHR, this Chapter will discuss how the principle is applied in the case law of the European Court of Human Rights (hereinafter: the ECtHR), especially in cases concerning the freedom of speech (section 3). In the last section (section 4), the relation between proportionality and human rights cases adjudication will be examined and special emphasis will be given to the criticism directed against this principle. Notably, mention will be made of the rationale behind the main arguments opposing to proportionality and their soundness and rationality.

However, before entering into the main discussion, the intricate nature of proportionality makes it inevitable to present the exact meaning of this principle, its features and its dimensions in human rights law context (section 2).

2. The principle of proportionality and its dimensions

To begin with, the principle of proportionality is a legal construction. It is a tool for the judges to reconcile the clashing interests in human rights conflicts or in human rights against public interest conflicts and to find a solution which respects the human rights and the private interests of the individual and, simultaneously, cares for the promotion of the public interests and the protection of the public order (ordre public). It is described as a criterion which focuses on the appropriate correlation which must exist between the aims and the means.^[13]

Suppose that a significant group of people protest outside the Parliament of their country due to the imminent austerity measures which are to be imposed. This demonstration has as a consequence that a main street outside the building of Parliament will be closed because of the congregation of many protesters. The right to demonstrate^[14] therefore is in conflict with the right of the passengers and drivers to pass unhindered through that road.^[15] Shall the police forces disperse the crowd so as to facilitate the free movement of people who have not joined the demonstration or should they allow the demonstrators to protest without any restrictions? If we follow the assumption that police should take measures to stop the gathering, then we must wonder what specific actions should be taken. Shall the police proceed to the use of weapons (e.g. chemicals and water cannons) or shall take other measures instead, which may be less efficient but more peaceful?

As claimed by the proponents of proportionality, the solution to these matters must be found through balancing and, thus, legal scholars must inevitably resort to proportionality.^[16] More precisely, they argue that in order for a limitation of a right to be justifiable, plausible and lawful, it must meet some requirements prescribed by the law. These requirements correspond to the four components of the proportionality doctrine.

In particular, proportionality consists of four subparts which must concur in order for the limitation clause to be lawful. These subparts give meaning to the existence of proportionality and make its content more approachable.^[17] The sub-principles of proportionality are: the proper purpose pursued, the adequacy, the necessity and the proportionality stricto sensu. In the following sections, the content of each sub-principle will be briefly addressed.

2.1. Proper purpose

This sub-principle denotes that a constitutional right cannot be limited for any reason. It reflects the idea that a limitation of a right can be justified only if the restriction derives from values on which each society is founded. Consequently, this form of proportionality has an intense value-laden meaning.

The proper purpose requirement necessitates the existence of democratic values within the state.^[18] The means selected for the limitation of the right will be legitimate and proper on condition that it takes into account the democratic values of a society (e.g. non-discrimination, gender equality) and it respects them. Within the general realm of democratic reasons, the protection of human rights and the promotion of public interest are included.

However, ambiguity surrounds the meaning and the scope of the notion of public interest mainly due to the fact that there are many different theories about its exact concept.^[19] A contributing factor for the vagueness of the concept is also the false impression that the public interest is the interest of the majority. To put it differently, some argue that we can locate the public interest if we take a simple look at what the elected representatives of the people have voted for. An indication of this belief has influenced even the Court when it considered that the position of the majority (87%) of Tyroleans^[20] not to be offended by the film expressed the public interest, especially if we take into account the phrase that “the Roman Catholic religion is the religion of the overwhelming majority of Tyrolese.”^[21]

Nonetheless, such a belief is a fallacy since the views of the majority can be discriminatory and against democratic axioms. Let’s assume that the 87% of Tyrolese hate black people. Suppose that every time when black people star in movies played there, the ‘overwhelming majority’ of Tyrolese feel superior to them and are disturbed with violent feelings. Shall we conclude that such feelings represent and satisfy the public interest? Should we include these feelings in the ambit of the public interest so as to protect them? If not, it is probably because at the core of the public interest must exist reasons which comply with democratic principles.

2.2. Adequacy

Adequacy means that the intervention to a human right of an individual must be suitable and appropriate to achieve the goal that was sought by the lawmaker. The means that were chosen by the limiting law must in fact be eligible to fulfil the purpose. At this stage, the interpreter examines the degree of capability of each means. It is not required that the means which is eventually chosen must be the only one suitable for realizing the limiting law’s purpose. It is sufficient if the chosen means is itself capable.

Along with the suitability, there must exist a rational connection between the realization of the means and the realization of the law’s purpose. For instance, there was a law in South Africa which prohibited the same-sex couples to enjoy the same exactly benefits as were enjoyed by married, heterosexual couples. The Constitutional Court examined the statute^[22] and it held that, despite the fact that the purpose pursued was consonant with the principles of South African society (it was supported that in this way the traditional family structure was preserved),^[23] there was no rational connection between that goal and the means of rejecting same benefits.

2.3. Necessity

According to the third sub-principle, the interpreter assesses whether the means chosen, among the other capable ones, is the only one which intervenes the least to the human right in question. As Juan Cianciardo puts it “the norm will only pass the test of necessity if it is the one among those similar in efficacy which is the least restrictive of the rights.”^[24],^[25] In case there is an alternative measure less restrictive than the means chosen, the judge should give priority to the imposition of the former one and, hence, deny the application of the more harmful measure to the right.

The necessity test presupposes that the previous two tests are satisfied, namely the law’s purpose is a proper one and the means chosen is capable of achieving the purpose. It should be also noted that this criterion relates to the intensity and the degree of the interference of the means in the private interests and not to the need to achieve the purposes. Therefore, the main factor of the necessity test, which is a facet of the notion of efficiency, is that the law’s purpose can be fulfilled through means which are as less restrictive as possible to the protected right.

The Constitutional Court of Germany applied the principle of necessity when it addressed the issue of the sale prohibition of certain candies which consisted of cocoa powder.^[26] It was clear that the prohibition restricted the right of freedom of occupation of many candy manufacturers. The Court found that the purpose aimed was proper and that there was a rational connection between that purpose and the prohibition. However, it decided that the means which were preferred by the legislator were unnecessary and, thereby, disproportionate on the basis that there were less intrusive alternative measures (e.g. putting warning labels on the product).

The language of necessity was also used in the Nachova and others v. Bulgaria case, where the Court found that “recourse to potentially deadly force cannot be considered as ‘absolutely necessary’ where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence.”^[27]

2.4. Proportionality stricto sensu (Law of Balancing)

The most important aspect and perhaps the most unclear component of the principle of proportionality is the proportionality stricto sensu. According to this test, in order for the limitation clause to be justified, a balancing between the benefits gained by the public and the harm caused to the constitutional harm is required. At the final stage of proportionality, the interpreter has to evaluate the advantages and the disadvantages which come from the proposed measure. The decision maker must evaluate whether the consequences of the suggested measure are excessive compared to the right that has been violated. Consequently, the proportionality stricto sensu test pays attention to the outcome of the balance.^[28]

The importance of this test is clearly depicted in an example presented by Barak in his aforementioned book. Let’s assume that a statute gives permission to the police to shoot a person - accepting the chance that he may be killed - if this is the only way to prevent that person from causing damages to someone else’s property. This law is designed to protect property and, hence, its purpose is lawful and proper. As far as the means is concerned, this is rational and suitable since it tends to satisfy the proper purpose. In addition, the shooting will take place only when there is no other available means to protect the property. As a result, the law meets also the necessity test. However, the clause still lacks legitimacy because protection of private property cannot set aside the human life. Therefore, the provision is unconstitutional and under no circumstances can justify the taking of a life.

All things considered, the decision maker must allocate the relative weight of the competing interests, balance them on a sliding scale, identify the ‘tipping point’^[29] between them and, finally, impose the appropriate limitation which does not intrude into the core of the right.

3. Application of the proportionality doctrine in the case law of the ECtHR

As a methodological tool, the principle of proportionality is applied extensively by the ECtHR. In this chapter, it will be examined in what way proportionality is used in the jurisprudence of the Court, especially in cases with respect to freedom of speech.

First of all, it is common ground that the mechanism of balancing has been invoked in numerous human rights cases before the Court. To name a few, judges had recourse to proportionality in the Hatton and others v. the United Kingdom case,^[30] where the private and family life of the applicants under Article 8 of the ECHR^[31] had to be balanced against the economic welfare of the community. In addition, in the case of F. v. Switzerland, in light of a Swiss statute which imposed a temporary prohibition on remarriage, the Court weighed the potential benefits of the whole society against the potential harm of each individual.^[32] Another indication of balancing can be found in the case of Markovic and others v. Italy,^[33] where the Court maintained that the right to a fair trial under Article 6 (1) of the ECHR^[34] can be restricted on condition that exists “a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”^[35]

Apart from these examples, the principle of proportionality has all along been a useful tool in the hands of the judges in cases concerning the broad and obscure concept of freedom of speech and expression. One of the most famous cases involving free speech issues, where proportionality invoked, was the case of Handyside v. the United Kingdom.^[36] In the background of that case, the applicant, who was the owner of a publishing company, had published the book ‘The Little Red Schoolbook’ and distributed it in many countries. Among other readers, the book was also made available to school-children older than twelve years old. However, its content and specifically its reference, inter alia, to the interconnectedness of sex and pornography was deemed inappropriate and obscene since, as the domestic courts held, it “produced a tendency to deprave and corrupt”^[37] its target audience, namely children. So, the applicant resorted to the Court claiming that the actions taken against him by the United Kingdom (i.e. imposition of a fine and forfeiture order) violated mostly his right to freedom of expression under Art.10 of the ECHR^[38] in conjunction with his right to freedom of thought, conscience and religion protected in Art.9.^[39]

Nevertheless, the Court found no breach of the aforementioned articles. Even though it recognized that the freedom of expression is an integral principle of a democratic state and, hence, is closely associated with the notions of pluralism, tolerance and broadmindedness,^[40] it upheld the view that domestic courts and national authorities are the only entitled to determine whether a particular measure is ‘necessary’ in moral issues.^[41] Given that there is no common conception of morality, the Court leaves a margin of appreciation to the national authorities and courts in order to assess themselves the necessity and the aim of the proposed measure.

The view that freedom of expression is one of the cornerstones of democracy was reiterated in the case of Jersild v. Denmark.^[42] There, the applicant, a journalist, conducted an interview with a group of young people, the ‘Greenjackets’, talking about their racist attitudes. During the interview, the ‘Greenjackets’ disseminated their derogatory views about immigrants and black people. The applicant was charged of aiding and abetting the local group to express their racist opinions and ultimately sentenced to pay a fine. So, the applicant issued proceedings before the Court asserting that his conviction by the courts of Denmark infringed his right to freedom of expression under Art.10. The Court, after drawing attention to the crucial role of the press in a democracy,^[43] concluded that the means selected were disproportionate to the aim pursued.^[44] Taking into account the duties and responsibilities of a journalist, the Court striked a balance between freedom of expression, racism and incitement and decided that incitement does indeed influence the development of racism but it cannot entail disproportionate limitations to the exercise of the right. In other words, it accepted indirectly that shooting the messenger, namely the media, is a disproportionate way to combat the message, i.e. racial discrimination.

In the Müller and others v. Switzerland case,^[45] the Court dealt with the issue of whether the freedom of artistic expression, which is included in the broad content of freedom of expression,^[46] can be restricted on grounds of public morals. In particular, the applicants displayed an exhibition of modern act, where paintings of allegedly obscenity were shown. In accordance with the report of the principal public prosecutor, the paintings were confiscated and the creators were fined. The applicants subsequently complained before the Court that their criminal conviction and the seizure of paintings encroached on their right to freedom of expression under Art.10. The ECtHR held that the restrictions imposed were laid down by law^[47] and pursued the legitimate aim of protecting the moral standards of society and the rights of others.^[48] However, ambiguity remained as to whether the measures were necessary. After emphasizing the correlation between necessity and social needs,^[49] the Court deduced that the interference in the artistic creativity of the applicants was necessary and hence proportionate. Therefore, given that the reasons invoked by the domestic courts to justify the measures were “relevant and sufficient”,^[50] it found no breach of Art.10.

The question of whether any interference is consistent with the condition of ‘necessity in a democratic society’ was examined once more in the Turhan v. Turkey case.^[51] The dispute concerned the limits to the freedom of expression and the distinction between “statements of fact and value judgments”.^[52] As to the facts, the applicant was the author of a book titled ‘Extraordinary War, Terror and Contra Guerrilla’ which, as the Turkish Courts found, contained defamatory allegations against the then Minister of Turkish State. The Court held that in order to settle the dispute, it had first to draw a borderline between facts and value judgments. The former can be proven and, generally speaking, indicate an objectivity, whereas the latter are not susceptible of proof. As a matter of fact, proving the truthfulness of a value judgment is a difficult task which may lead to the infringement of the freedom of opinion. Even so, a value judgment can be regarded as excessive when it lacks any “factual basis to support it.”^[53] The connection between the value judgment and its supporting facts depends on the particularities of each case, thereby it should be examined on a case-by-case basis.

Moreover, one significant factor for the Court’s determination was its view that the limits of acceptable criticism are wider for persons who are involved in the political scene than for private individuals. All things considered, the Court found that the impugned interference was not necessary since there has been no pressing social need for the minister’s personality rights to take edge over the applicant’s right to freedom of expression.^[54] Therefore, there has been a violation of Art.10.

Aside from the aspect of necessity, judges are often called upon to examine the proper relation between the profits gained by the limiting statute and the damage caused by it; to examine, namely, the test of proportionality stricto sensu. In the first place, reference must be made to the case of Otto-Preminger-Institut v. Austria, which concerned issues of blasphemous speech.^[55] The applicant, a private organization aimed at entertaining the public through the projection of movies, was to show the film ‘Das Liebeskonzil’ (‘Council in Heaven’) to the public. Its plot focused on a conspiracy between God and Devil to punish humankind and some recent productions of the play contained many erotic scenes. Even though some restrictive measures were taken by the organization itself (e.g. they distributed bulletins where they mentioned, inter alia, that persons under 17 years old are prohibited from watching the movie), the public prosecutor filed criminal charges against the manager of the association and seized the film on the basis that it “disparages religious doctrines.”^[56] The applicant complained about the interference and their prosecution and argued that their act did not violate the Art.188 of the Austrian Penal Code^[57] since it was covered by the normative content of Art.10.

At the outset, the Court examined whether the measures taken pursued a legitimate aim. It contended that these measures intended to “protect the right of citizens not to be insulted in their religious feelings by the public expression of views of other persons.”^[58] Therefore, the measures in question pursued a legitimate aim since they aimed at securing the “protection of the rights of others” under Art.10(2). Then, the Court proceeded to look at whether the seizure and the forfeiture were “necessary in a democratic society.” Restating the view that whoever exercises his right to freedom of expression is compulsorily subject to certain duties and responsibilities, it pointed out that there is a general “obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.”^[59]

Last step for the Court before the ruling on the lawful or unlawful character of the measures was to assess whether the forfeiture and the seizure were proportionate limitations in view of the legitimate aim pursued. It is noteworthy that on this issue no unanimity prevailed. In particular, the majority found that attention should be drawn to the fact that the organization advertised the film and made the public aware of its screening. Despite the fact that the applicant took precautions, namely payment of an admission fee and the imposition of an age-limit, the majority argued that there was adequate public knowledge concerning the subject-matter of the film. As a result, the screening of the film was regarded as “an expression sufficiently ‘public’ to cause offence.”^[60] Thus, it held that the means adopted to protect the religious feelings of the others were proportionate and did not violate the Art.10.

The interference with the freedom of expression with the view to protecting religious feelings was again at issue in the case of İ.A. v. Turkey.^[61] The applicant had published a book entitled “The forbidden phrases” which conveyed critical views about the Muslim religion. In particular, among the most “provocative” parts of the book was the following passage: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha's arms [...] God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.”^[62] Based on Art.175(3) and (4) of the Turkish Criminal Code,^[63] the Court of First Instance sentenced him, initially, to two years' imprisonment and a fine. Afterwards, it commuted the prison sentence to a total fine of 16 US Dollars.

After the applicant’s appeal, the Court considered that the impugned measures not only sought the legitimate aim of securing the morals of others but also satisfied the condition of “necessity in a democratic society”. The crucial issue before the Court, though, was to examine the specific weight of each fundamental freedom and to assess the advantages and the disadvantages of the interference. In spite of acknowledging again the key role of freedom of expression in a democracy,^[64] the Court noted that the law of blasphemy could justify restrictions on it, especially when the views expressed are regarded as “unwarranted and offensive attacks”^[65] against someone’s religious beliefs. Therefore, it upheld that the margin of appreciation enjoyed by the national authorities was duly exercised and the fine imposed was proportionate to the aims pursued.

Last but not least, mention must be made of the Wingrove v. the United Kingdom case,^[66] which dealt anew with the relation between blasphemy and film censorship. A videotape entitled “Visions of Ecstasy”, directed by the applicant, had not received a distribution certificate due to its alleged profane content. Particularly, the short film was regarded as blasphemous under the common law, since it portrayed erotic scenes between Christ and a nun. While the reasoning of the Court did not differ from its argumentation developed in other cases concerning limitations on freedom of speech, it does underline the need to pose some limits to freedom of expression. In order for a movie or generally a work of art to prevail over religious sensibilities, it must not be “gratuitously offensive to others and profanatory”.^[67] Through blasphemy laws, the outrage to Christians that could be caused by the projection of the film was timely avoided.

4. Pathologies of proportionality

4.1. Connection between proportionality and human rights

Some scholars argue that, through the examination of the ECtHR’s jurisprudence, the substantive role of proportionality in the adjudication of human rights cases is easily illustrated. Among the main characteristics of a democratic system, respect to human rights is of vital importance.^[68] However, democracy does not imply that each human right should remain unlimited. The essence of democracy is that freedom of a person is contrasted with another individual’s freedom. The scope of application of each human right is determined by its interaction with other rights.^[69] Thus, they should be exercised following some rules and limits.

Limits to the enjoyment of a right must also be set when an individual freedom is in conflict with public interest considerations. Human rights are not autonomous notions but exist in the context of a democratic society where they interface with other values. This means that their interrelationship with other interests should be governed by deference. A human right may be restricted so as “to ensure the very existence of the state; to ensure its continued existence as a democracy; to ensure public health; to ensure public education; as well as several other national causes.”^[70] So, the relationship between state and the rights of the individual is twofold; the state has to safeguard the rights of individuals and the individuals have to exercise their rights in such a way that they shall protect the peaceful existence and the stability of the state.

As a corollary, democracy consists not only of human rights but also of human duties. This view constitutes the basis of the principle of proportionality, which recognizes the special and multifarious nature of democracy. Judges have recourse to their methodological tool in order to settle the conflicts either between human rights or between human rights and national interests. Being a flexible construction which adjusts to the specific circumstances of each case, the principle of proportionality sets limits on two directions. It supervises the enjoyment of rights by individuals and, at the same time, restricts the governmental powers of states.

Therefore, it can be assumed that proportionality serves to weigh and delineate the various conflicting interests and rights within society.

4.2. The criticism on proportionality

In spite of the broad application of proportionality in the jurisprudence of international and domestic courts, this paper casts doubt on its reasoning and wide implementation. The criticism focuses primarily on reconciling human rights with competing public interests and on proportionality stricto sensu. Holding the view that proportionality is a mechanistic method unable to assess the inherent moral nature of human rights, this chapter examines the possible objections against its invocation in human rights cases. Through the arguments developed below, it will be examined whether proportionality can indeed contribute to the precision and objectivity of judicial decisions, as it is supported by its proponents.

4.2.1. The inherent moral nature of human rights

The principle of proportionality seeks to provide an objective and accurate answer in the conflict between human rights and public interest, similar to that offered in mathematical equations. However, the precision pursued entails the risk of overlooking the morality of human rights and hence distorting their content.

More specifically, proportionality tends to balance values without a prior examination of their moral substance. In light of its mere technical character,^[71] judges detach themselves from answering ethical questions. As a matter of fact, “the principle of proportionality attempts to depoliticize rights by purporting to turn the moral and political evaluations involved in delimiting a right into technical questions of weight and balance.”^[72] Yet, moral concerns are at the very heart of human rights. Considerations of the moral facets of human rights are unavoidable when examining their scope of application.

Each and every human right consists of an inviolable core which shall not be violated for any reason. The “absolute minimum of each right”,^[73] which shall be conceived irrespective of considerations of public interest, denotes a moral position about what is right and wrong. The best way to fully capture the value and importance of a right is through substantive evaluation and moral argumentation.^[74] In order for the interpreter to balance, for example, freedom of speech, he has to examine first what the essence of this freedom is. So, he has to find out the constituent elements of the disputed right and draw the line between actions protected by its normative content and actions that are not.

Put simply, before talking about balance and measurement, the interpreter has first to focus on substantial moral issues. In the Otto-Preminger-Institut case, the Court tacitly upheld that religious sentiments shall be protected from verbal attacks so as someone’s religious life not to be plagued. Likewise, in the İ.A. and Wingrove cases, it was accepted, respectively, that religious opinions can significantly restrict the right to freedom of artistic expression and the creativity of artists is permissible with the proviso that it is decent. In this way, though, the ambit of freedom of expression is fickle. If we are eager to accept a freedom of expression at all, the religious freedom shall include “the right of others to advocate their own religion and express critical views about my own religious beliefs.”^[75] Besides, the imperatives of democracy provide so.

In case we adopt the assertion of the Court that strong feelings, which may take the form of religious beliefs, can indeed restrict the freedom of expression, it can be assumed that other strong ideas (for example political) can mutatis mutandis lead to the same result, namely the erosion of the right to freedom of expression. This pitfall of proportionality is reflected in the view of Tsakyrakis that “the balancing approach […] is committed to a view, whereby everything, even those aspects of our life most closely associated with our status as free and equal, is in principle up for grabs.”^[76]

Consequently, prior resorting to proportionality, the interpreter has to examine the moral issues arisen. This examination is inevitable since human rights ensure some basic status of freedom to individuals.^[77] Provided that proportionality says nothing about a general hierarchy of priorities,^[78] the interpreter has to identify the real meaning of each right and highlight its importance.

4.2.2. The issue of incommensurability

4.2.2.1. Absence of a common standard

Another main objection to the principle of proportionality is the absence of a common metric in the balancing procedure. The base of this argument lies in the proposition that in order for competing interests, principles or rights to be weighed a common denominator must exist. A prerequisite for a rational comparison to establish is a shared property between the objects which are put on the scale. In case such common feature is absent, the comparison is doomed to be characterized arbitrary.^[79]

Initially, the merit of the principle of proportionality derives from the evaluation of the level of the relative co-existence of values within a society. This co-existence seems to be influenced by a concept of continuous conflict. In particular, some support the Hegelian position that every thesis or idea in a society is in stark contrast to an antithesis or an opposite idea. Such a point of view, though, is characterized by excessive simplicity since it leads to the conclusion that each choice we make is confronted with countless alternatives options. For instance, staying at home to study for the exams can be juxtaposed with a wide range of other activities. This broad dilemma can be settled out by weighing the pros and the cons of each choice.

The balance between costs and benefits “seems to be a natural and reasonable method of resolution”^[80] in daily matters.^[81] For the balance to be successful, some prerequisites must be fulfilled. According to John Finnis, the outcome of an effective balance hinges on whether “(1) goals are well-defined, (2) costs can be compared by references to some definite unit of value (for example money), (3) benefits too can be quantified in a way that renders them commensurable with one another, and (4) differences among the means, other than their measurable costs, measurable benefits, and other aspects of their respective efficiency as means, are not counted as significant.”^[82] In few words, the metaphor of the scales of justice requires commensurability between the conflicting interests.

However, the absence of a common ground in human rights adjudication results in stalemate; the interpreter has to balance the unbalanceable things. The intrinsic value of human rights impedes the interpreter to compare them with common interest reasons. The only way to find a common metric and hence to set up a rational comparison is to follow a utilitarian perspective. This implies that the comparing items are subject to a superior common purpose (for example money or general prosperity) for the sake of which they can ultimately be reduced. So, the measurement would depend on the question of which of the two or more conflicting items can contribute more to the achievement of the common goal.

Nonetheless, this form of utilitarianism cannot be applied in human rights cases since their protection is not directed to a higher objective. They are not safeguarded with the aim of promoting a general good which is taken to be fundamental but they merely exist as they denote a need for respect to the “dignity and worth of human persons.”^[83] Stated otherwise, the foundations of human rights shall not be found in teleological theories but rather in deontological approaches.^[84] Human rights and, especially, the respect for other persons shall be regarded as ends in themselves. Recognizing the equal needs of others and abiding by the moral standards of a society result in the vindication of our own moral personality. Humanity and morality have an inherent, autonomous meaning and cannot function as means to our own desires. An aspect of this proposition is reflected in the Immanuel Kant’s theory of the ‘categorical imperative’. This thesis indicates that a moral act shall be unconditional and independent of any other considerations.^[85] A moral agent shall behave as the categorical imperative commands because this is the only right thing he/she can do. In this way, moral actions become universalized and binding. Therefore, for Kant the categorical imperative constitutes the leading criterion of morality since it is the crucial factor for determining whether an act is moral or not.

The proposition that human rights shall be considered conditio sine qua non of human dignity can be better understood if we take an example where the right to life is involved in a conflict. Assume that an aircraft full of explosives is directed against a building where a significant number of people either work or live. The plane is guided only by one pilot who has to complete the terrorist attack and kill as many civilians as possible. Due to some technical problems, the army of the country is informed about the imminent attack at the last moment. Given that there is no time available to stop the attack and react in a different way (e.g. by moving the individuals in a safe area), there is no other option but to shoot down the aircraft. So, it has to strike a balance and choose to protect either the lives of hundreds of people or the life of one person. We can all assume that the choice will be based on quantitative criteria^[86] and that the lives of more people will probably outweigh the life of only one person.

It is remarkable, though, that the protection of the same value (in this case the right to life) shall not be contingent upon quantitative considerations. That is, the life of one person shall be secured in the same degree as the lives of hundreds of people. Besides, this principle - namely the independent value of the right to life and, generally speaking, of each human right - is reflected in the domestic criminal law provisions. Specifically, under the Greek Penal Code, a person, who is aware of the attack and has the ability to prevent it, has no legal obligation to kill the person in order to save the others. In principle, intentional homicide produces the same legal results; the act of killing is unlawful and the perpetrator must be punished.^[87] So, the illegal character of homicide remains no matter what. The issue of whether the act can ultimately be attributed to the perpetrator due to circumstances precluding attribution^[88] has to be examined at a later stage, after the determination of the wrongfulness of the act.

This example indicates that the right to life is regarded as an end of itself and hence is not reducible to some common goal (i.e. the protection of society from manifestly illegal acts). The same can be said about the existence of the so-called ‘relative rights’,^[89] and especially the right to freedom of expression which is at the heart of the debate. The ECtHR has persistently admitted that the freedom of expression is a ground rule of a democratic society. Prohibiting someone from expressing his own views would constitute a threat to the mere existence of democracy. The latter can be fully conceived only if the freedom of expression is secured. Besides, this is the reason why the Court decided to adopt a broad definition of its content so as to include “information or ideas […] that offend, shock or disturb the State or any section of the population.”^[90] As a result, freedom of expression is not only an indispensable element of democracy but also an indication of the equality of people. Therefore, it has an autonomous value.

The partial adoption of utilitarian ideas is apparent in Barak’s view that a common term of comparison can be found by resorting to the notion of ‘social importance’. In particular, he rejects the objections concerning incommensurability by stating that “a shared base - or a common denominator - exists; it is in the form of the marginal social importance in fulfilling the public purpose and the marginal social importance in preventing the harm to the constitutional right.”^[91] His view revolves briefly around the idea that instead of comparing two things which are dissimilar, the interpreter has to pay attention to one single factor: the social importance of the interests. According to Barak’s perspective, “[social importance] is derived, inter alia, from different political and economic ideologies, from the unique history of each country, from the structure of the political system, and from the different social values. The legal system at issue should be observed as a whole. The assessment of the social importance of each of the conflicting principles should be conducted against the background of the normative structure of each legal system.”^[92]

However, this suggestion is too vague and cannot escape the incommensurability problem. Apart from neglecting the innate value of human rights, this proposal focuses exclusively on what is more beneficial for the society as a whole. In addition, it seeks to optimize at the same time both competing items, albeit such an attempt is a chimera. A structurally similar proposition is offered by Alexy who argues that the comparison between rights and public interests can be achieved only if we take into account “their importance for the constitution”, which acts as “a common point of view” and “indirectly leads to their comparability.”^[93] Consequently, he sums up that incommensurability is not an obstacle.

Both these retorts defy the deeply different nature of the conflicting interests. Even if the identification of a common criterion was feasible, the distinct nature of the comparing goods offers no rational ground for the interpreter to say that one value is greater than the other. As Endicott has put it: “Identifying a single criterion does not eliminate incommensurability if the application of the criterion depends on considerations that are themselves incommensurable […] In human rights cases, the availability of the covering value, ‘importance’, does not give us any reason to think that the grounds on which judgments are to be made are commensurable.”^[94]

All in all, in view of the absence of a common metric, the principle of proportionality offers no rational grounds to prefer one item over the other. On the contrary, “it can merely assist reason in choosing between incommensurables.”^[95]

4.2.2.2. Non specification (categorization) of comparing items

This argument which is in close affinity with the criticism relating to the inherent moral nature of human rights suggests that the balancing method does not give emphasis to the specification of items which are going to be weighed. This is mainly caused by the extensive application of the methodological principle of definitional generosity in balancing procedures.^[96] This principle provides that the interpreter adopts a broad definition of the contested right so as a certain action to be included in its ambit. By lowering the threshold, the act in question can be prima facie protected by the normative content of the provision. The crucial determination on whether the act shall be finally protected will be made in the balancing stage.

Needless to say, this principle affected many supporters of proportionality mainly because of its putative flexibility. This influence is evident in David Beatty’s work and specifically in his critique of Brown v. Board of Education case, which dealt with the issue of whether the existence of separate schools for black and white students was in agreement with the American Constitution.^[97] The author, after endorsing the foundations of proportionality, mentioned that the best way to resolve the conflict in the racial segregation case was to strike a balance between the harm suffered by black students due to segregation and the harm inflicted on white students from integration. In particular, he argued that: “Telling black children they cannot be educated in the same schools as white students is brutally offensive to their dignity and self-worth in a way that forcing whites to share their classrooms is not. Segregationists may be deeply offended by having to mix with people with whom they want no association, but their stature and status in the community is not diminished by their forced integration.”^[98] These words seem to promote the view that the only reason why the Court found a violation to the rights of black students was that their harm was more significant than the harm suffered by white students. So, in case the white children’s sense of superiority was considered to be more important than the black’s loss of dignity and self-esteem, the conclusion would be different.

Such an absurd outcome, though, would both negate the whole edifice of human rights and contradict our basic ideas about them. It would disregard their distinctive meaning and weaken their moral value. In lieu of following a mechanistic procedure, the interpreter shall unearth the meaning of each human right from the outset and realize its “unique status”.^[99] The principle of definitional generosity fails to apprehend the importance of human rights since it does not at the first stage get rid of assertions based on “illicit justifications”.^[100]

4.2.3. Wound to the whole concept of Constitution

The Constitution, as the Grundnorm of the domestic legal society, defines, inter alia, the governmental functions and sets out their limits. Among its main aims is to assure the internal legal stability and political legitimacy of a State by distinguishing acceptable from unacceptable State actions. This is mostly achieved through the protection of human rights which impede arbitrary governmental actions to be adopted. Yet, the principle of proportionality renders the idea of human rights fluid.

To begin with, the effective protection of constitutional rights requires a prior definition of their content. The constitutional legislator has to draw a line which determines the substance and the limits of each right. Even in case the line is uncertain or has been drawn “in the wrong place and [hence] it should be moved”,^[101] demarcation still suggests that some cases should be placed on the one side, whereas the others on the other side. In this way, a degree of certainty is achieved. Apart from certainty and stability, the definition of rights is necessary in order for them to function as ‘trumps’.^[102] Besides, as Webber put it, “once delimited, a constitutional right may be considered to be an exclusionary reason.”^[103]

However, if the protection of constitutional rights - as the proportionality doctrine recommends - is dependent every time upon the relative weight of the conflicting interests, the respect to human rights will always be conditional and unstable. It will always hinge on the outcome of a quantitative balance. The volatile protection of constitutional rights is obvious in the case law mentioned above in chapter 3, where the right to freedom of expression was in most cases not preserved because it was deemed inferior either to public morals and social needs (e.g. Müller case) or to the right to religious freedom (see İ.A. case).

With proportionality the protection accorded by the Constitution to human rights may be ignored if the benefit to the public interest outweighs the harm to rights. As a matter of fact, considerations around public interest will probably overcome rights of individuals.^[104] According to Niemmer, “it is too much to expect that our judges will be entirely untouched, consciously or otherwise, by such strong popular feelings - feelings that have more than once reached a point of national hysteria - when they come to engage in the ‘delicate and difficult task’ of weighing competing interests. Thus, at the very time when the right of freedom of speech becomes crucial, the scales may become unbalanced.”^[105]

Therefore, the Constitution relativizes the protection of human rights since it relates the unacceptable with the disproportional; claims against unacceptable State actions might lose their strength by virtue of proportionality. The Constitution does not seem to impose an obligation “you shall not pass” but it provides that “pass if you must, but do so proportionally.”^[106]

5. Conclusion

Notwithstanding its broad acceptance in domestic and in international courts, the principle of proportionality suffers from certain weaknesses, which lead chiefly to unregulated judicial discretion. Instead of securing and promoting human rights, proportionality tends to restrict them. Its mechanical nature results in the “loss of the vocabulary of rights”^[107] and implies that human rights are not worthy of special protection.

However, the importance of human rights rests on different reasoning from the importance of public interest. As Waldron maintained: “to believe in rights is to believe that certain key interests of individuals, in liberty and well-being, deserve special protection, and that they should not be sacrificed for the sake of greater efficiency or prosperity or for any aggregate of lesser interests under the heading of the public good.”^[108] Rawls alleged that “each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”^[109] For Dworkin, “there would be no point in the boast that we respect individual rights unless that involved some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient.”^[110]

The evaluation of the arguments and the decisions of the ECtHR in cases around the powerful right of freedom of speech connotes, inter alia, two things: the inability of the Court to grasp the full meaning of this right and the rejection of the idea that fundamental rights enjoy a higher status than other considerations. Albeit its alleged flexibility and logical structure, proportionality hampers the adjudicating process. Judges embrace proportionality as a panacea whereas they should not bypass the moral disagreements arisen. Its catchall function obscures the moral and political issues which are inextricably intertwined with the notion of human rights. To avoid that, judges should fulfill their Herculean tasks and try to find out “the right answer thesis”, as Dworkin has suggested, by elucidating the conflicts. As a result, through the analysis developed above, the principle of proportionality with respect to human rights cases should - at least - be questioned, or even jettisoned.

[...]

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^[1] D. Moeckli, S. Shah & S. Sivakumaran, International Human Rights Law (2010), at 41.

^[2] According to R. Dworkin in ‘ Taking Rights Seriously ’ (Harvard University Press 1977), rights shall not be overridden on grounds of utilitarian purposes (e.g. the welfare promotion of the majority). In particular, he points out that “individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do, or not a sufficient justification for imposing some loss or injury upon them.” Thus, they cannot be altered, not even by consensus.

^[3] The general importance of balance has been emphasized by Lord Irvine of Laing in his publication ‘ The Impact of the HRA: Parliament, the Courts and the Executive ’ (2003) PL 308, who mentioned that “in examining what impact the Act has had on the courts, and on our system of law, the overriding theme that emerges is balance: balance between scrutiny and deference; between the individual and the community; and between interpretation and declarations of incompatibility” (emphasis added). Besides, as Carl Schmitt put it out in his book ‘ The Crisis of Parliamentary Democracy ’ (Cambridge, MA: MIT Press, 1988) at p. 40: the “image of balance can be found in every aspect of intellectual life.”

^[4] As the former President of the European Court of Human Rights, Rolv Ryssdal, has put it, the cornerstone of the European Convention on Human Rights and the main theme of its case law is “the need to strike a balance between the general interest of the community and the protection of the individual’s fundamental rights.”

^[5] Just to mention a few, the Constitution of Greece mentions in Art.25 para.1 that “restrictions of any kind which, according to the Constitution, may be imposed upon these rights […] should respect the principle of proportionality.” In addition, according to Art.19 para.4 of the Constitution of the Portuguese Republic: “Both the choice between a state of siege and a state of emergency and the declaration and implementation thereof shall respect the principle of proportionality...” (emphasis added).

^[6] T. Endicott, Proportionality and Incommensurability (2013), University of Oxford, Paper No 40/2012, 16 February 2013, at 1; D. M. Beatty, The Ultimate Rule of Law (2004), New York: Oxford University Press, at 166: “proportionality offers judges a clear and objective test to distinguish coercive action by the state that is legitimate from that which is not.” Especially its Chapter 5 is a paean of praise to proportionality; R. Alexy, The Construction of Constitutional Rights (2010), 4 Law & Ethics of Human Rights, Issue 1, 20 at 32: “Justifiability, despite the fact that it cannot be identified with provability, implies rationality, and, with it, objectivity, understood as lying between certainty and arbitrariness. The end is attained. Balancing turns out to be an argument form of rational legal discourse.”

^[7] D. L. Faigman, Madisonian Balancing: A Theory of Constitutional Adjudication (1994), 88 Nw. U. L. Rev., 641 at 648: “Balancing seemingly permits judges enormous latitude in measuring values and facts for inclusion on the scales while, at the same time, purporting to be objective, neutral, and even scientific”; The impairment of judicial certainty is highlighted by M. B. Nimmer, The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy (1968), 56 California Law Review, Issue 4, 935 at 939: “Without pretending that there can ever be complete certainty as to how a given rule will be applied in a new situation, if there is no rule at all then there is no certainty at all.”

^[8] A daily example is whether someone should watch a movie at the cinema or should stay home.

^[9] According to J. Habermas even though “valid norms make up a flexible relational structure, in which the relations can shift from case to case […] this shifting is subject to the coherence proviso, which ensures that all the norms fit together into a unified system designed to admit exactly one right solution for each case.” (J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996) at 261).

^[10] Justice Antonin Scalia mentioned that “the scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.” (Bendix Autolite Corp. v Midwesco Enterprises Inc., Page 486 US 888, 897, June 1988).

^[11] This metaphor has its roots and, thereby, is closely associated with ancient Greece where the goddess of divine law and order, Themis, is depicted as a blindfolded woman holding a pair of scales and a sword. The connection between the scale and the current concept of impartial justice has a clear ideological message. In addition, the doctrine of the mean was the backbone in Aristotle’s philosophy. His position is clearly depicted in his works and especially in Nicomachean Ethics, where he states that “[…] it is a mean state between two vices, one of excess and one of defect. Furthermore, it is a mean state in that whereas the vices either fall short of or exceed what is right in feelings and in actions, virtue ascertains and adopts the mean.” (Aristotle, Nicomachean Ethics, 1107 a.1).

^[12] S. Tsakyrakis, Proportionality: An Assault on Human Rights?, Jean Monnet Paper 09/08 (2008), at 9.

^[13] Supra note 1, at 142: “Proportionality involves a complex equation evaluating the importance of the social aim, the importance of the right guaranteed, and the degree of.”

^[14] European Convention on Human Rights (1953), art.11: “1. Everyone has the right to freedom of peaceful assembly…”. In addition, according to the Art.21 of the International Covenant on Civil and Political Rights (1966): “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” The Universal Declaration of Human Rights (1948), art.20 (1) mentions that “everyone has the right to freedom of peaceful assembly and association.”

^[15] ECHR., art.2 (1): “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence” (emphasis added). The same exactly words were used to express the freedom of movement in the International Covenant on Civil and Political Rights under the art.12 (1). In the same vein, the specific right is protected under the art. 13 of the Universal Declaration of Human Rights.

^[16] Beatty, Supra note 6, at 162: “[proportionality] is an essential, unavoidable part of every constitutional text” and “a universal criterion of constitutionality”; R. Alexy, A Theory of Constitutional Rights (2002), Oxford University Press, at 74: “[balancing is unavoidable since] there is no other rational way in which the reason for the limitation can be put in relation to the constitutional right.”

^[17] Ah. Barak, Proportionality: Constitutional Rights and their Limitations (2012), at 132: “These components render the otherwise abstract notion of proportionality into a more concrete, usable concept.”

^[18] Such values can be found either explicitly or tacitly in the constitution of each state.

^[19] A. McHard, Reconciling Human Rights and Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights (1999), 62 Modern Law Review, No. 5, 671-696.

^[20] Case of Otto-Preminger-Institut v. Austria, Judgment of 20 September 1994, Application no. 13470/87, ECtHR, para.52.

^[21] Ibid., para.56.

^[22] National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99), 2000 (2) SA 1, 2 December 1999.

^[23] Ibid., para.55.

^[24] J. Cianciardo, The Principle of Proportionality: its dimensions and limits (October 2009), at 3 (available at: http://works.bepress.com/juan_cianciardo/1.)

^[25] Another definition can be found in J. River’s, Proportionality and Variable Intensity of Review (2006), 65 Cambridge Law Journal, at 198: “the test of necessity asks whether the decision, rule or policy limits the relevant right in the least intrusive way compatible with achieving the given level of realization of the legitimate aim. This implies a comparison with alternative hypothetical acts (decisions, rules, policies, etc.) which may achieve the same aim to the same degree but with less cost to rights.”

^[26] BVerfGE 53, 135.

^[27] Nachova and others v. Bulgaria, Decision of 6 July 2005, Applications nos. 43577/98 and 43579/98, ECtHR, paras. 96 and 107.

^[28] Supra note 17, at 342: “The proportionality stricto sensu test is a result-oriented test.”

^[29] Ed. Guntrip , International Human Rights Law, Investment Arbitration and Proportionality Analysis: Panacea or Pandora’s Box?, 7 January 2014, EJIL.

^[30] Hatton and others v. the United Kingdom, Decision of 8 July 2003, Application no.36022/97, Grand Chamber of ECtHR.

^[31] ECHR, art.8: “1. Everyone has the right to respect for his private and family life, his home...”.

^[32] F. v. Switzerland, Decision of 18 December 1987, Application no.11329/85, ECtHR.

^[33] Markovic and others v. Italy, Decision of 14 December 2006, Application no.1398/03, ECtHR.

^[34] ECHR, art.6 (1): “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

^[35] Supra note 33, para.99.

^[36] Case of Handyside v. the United Kingdom, Decision of 7 December 1976, Application no.5493/72, ECtHR.

^[37] Ibid., para.32.

^[38] ECHR, art.10: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises, 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

^[39] Ibid., art.9: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

^[40] Supra note 36, para.49: “Freedom of expression constitutes one of the essential foundations of such a [democratic] society, one of the basic conditions for its progress and for the development of every man […] Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.”

^[41] Ibid., para.48: “The view taken by their [states] respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterized by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”

^[42] Case of Jersild v. Denmark, Decision of 23 September 1994, Application no.15890/89, ECtHR.

^[43] Ibid., para.31: “the press ... to play its vital role of ‘public watchdog.”

^[44] Ibid., para.37: “the reasons adduced in support of the applicant’s conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was necessary in a democratic society.”

^[45] Case of Müller and others v. Switzerland, Decision of 24 May 1988, Application no.10737/84, ECtHR.

^[46] Ibid., para.27: “Article 10 (art.10) does not specify that freedom of artistic expression, in issue here, comes within its ambit; but neither, on the other hand, does it distinguish between the various forms of expression.”

^[47] Ibid., the Court, in paragraph 29, upheld the view that the requirements of ‘foreseeability’ and ‘precision’ were fulfilled.

^[48] Ibid., para.30: “there is a natural link between protection of morals and protection of the rights of others.”

^[49] Ibid., para.32: “the Court has consistently held that in Article 10(2) the adjective ‘necessary’ implies the existence of a ‘pressing social need’.”

^[50] Ibid., para.32.

^[51] Case of Turhan v. Turkey, Decision of 19 May 2005, Application no.48176/99, ECtHR.

^[52] Ibid., para.24.

^[53] Ibid., para.24.

^[54] Ibid., para.27.

^[55] Supra note 20.

^[56] Ibid., para.11.

^[57] Austrian Penal Code, Section 188: "Whoever, in circumstances where his behaviour is likely to arouse justified indignation, disparages or insults a person who, or an object which, is an object of veneration of a church or religious community ... shall be liable to a prison sentence of up to six months or a fine of up to 360 daily rates."

^[58] Supra note 20, para. 48.

^[59] Ibid., para. 49.

^[60] Ibid., para. 54.

^[61] Case of İ.A. v. Turkey, Decision of 13 December 2005, Application no.42571/98, ECtHR

^[62] Ibid., para.29.

^[63] Turkish Criminal Code, Art.175(3) and (4): “3. It shall be an offence ... to blaspheme against God, one of the religions, one of the prophets, one of the sects or one of the holy books.”

^[64] Supra note 61, para.23: “Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self fulfilment.”

^[65] Ibid., para.29.

^[66] Case of Wingrove v. the United Kingdom, Decision of 25 November 1996, Application no. 17419/90, ECtHR.

^[67] Ibid., para.52.

^[68] Supra note 17, at 161: “Human rights are the crown jewels of democracy. A democracy without human rights is like an empty vessel.”; J. Mayerfeld , The Democratic Legitimacy of International Human Rights Law (2009), 19 Indiana International and Comparative Law Review, No. 1, 49-88 at 54: “the best conception of democracy is one with a built-in commitment to human rights; therefore, international human rights law, by reinforcing human rights, enhances democracy.”

^[69] This idea goes at least as back as the Declaration of the Rights of Man and of the Citizen (1789), which mentions in its Art.4 that: “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.” (emphasis added)

^[70] Supra note 17, at 162.

^[71] G. C. N. Webber, Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship (2010), Canadian Journal of Law and Jurisprudence, Vol. XXIII, No. 1, 179 at 198: “balancing and proportionality proceed mathematically and technically”; S. Tsakyrakis supra note 12, at 5: “a mechanistic, quantitative common metric”.

^[72] Webber, ibid., at 191.

^[73] Tsakyrakis, supra note 12, at 32.

^[74] Webber, supra note 71, at 192: “Where legislation rests (as it usually does) on moral-political commitments, the delimitation of rights proceeds by way of argument and justification, not measurement.”

^[75] Tsakyrakis, supra note 12, at 15.

^[76] Ibid., at 26.

^[77] Dworkin, supra note 2, at 271: “If we have a right to basic liberties is not because they are cases in which commodity of liberty is somehow especially at stake, but because an assault on basic liberties injures us or demeans us in some way that goes beyond its impact on liberty, then what we have a right to is not liberty at all, but to the values or interests or standing that this particular constraint defeats.”

^[78] V. Jackson, Being Proportional about Proportionality (2004), 21 Constitutional Commentary, No. 3, 803 at 828-829: “Proportionality alone cannot provide us with the principled values on which its operational analysis must rest.”

^[79] Endicott, supra note 6, at 6. The danger of arbitrariness in weighing incommensurable items is reflected in the assumption that “if there is no rational basis for deciding one way rather than the other, then the result seems to represent a departure from the rule of law, in favour of arbitrary rule by judges.”

^[80] Supra note 12, at 3.

^[81] Or else, as stated by Paul Craig in ‘ Proportionality, Rationality and Review’ (2010), New Zealand Law Review 265, at 265: “non-rights based cases.”

^[82] John Finnis, Commensuration and Public Reason, in Ruth Chang’s “Incommensurability, Incompatibility, and Practical Reason” (Cambridge, MA: Harvard University Press, 1997) at 219.

^[83] The Universal Declaration of Human Rights (1948), Preamble.

^[84] Teleological theories claim that human rights reasoning and justification can be understood by reference to some goal. On the other hand, deontological views assert that human rights shall not be defined in relation to some common or individual good. Instead, their justification is linked with some moral consideration, which may found either on God’s will (as supported by the divine command theories) or on the ideal of reciprocal recognition. (A total review of these theories can be found in T. I. White’s ‘ Business Ethics: A Philosophical Reader ’(1993), New York: Macmillan Publishing; and in D. Moeckli, S. Shah & S. Sivakumaran, International Human Rights Law (2010), at 45-48.)

^[85] This is the crucial element which distinguishes the ‘categorical imperative’ from the ‘hypothetical imperative’. In particular, Kant states that “if now the action is good only as a means to something else, then the imperative is hypothetical; if it is conceived as good in itself and consequently as being necessarily the principle of a will which of itself conforms to reason, then it is categorical” (I. Kant, Fundamental Principles of the Metaphysics of Morals, Dover Philosophical Classics (2005), at 31.)

^[86] J. Waldron, Security and Liberty: The Image of Balance (2003), 11 The Journal of Political Philosophy, Issue 2, 191 at 192: “balance’ also has connotations of quantity and precision, as when we use it to describe the reconciliation of set of accounts or the relative weight of two quantities of metal.” (emphasis added)

^[87] Greek Penal Code, Art.299(1): “One who intentionally kills another shall be punished by confinement in a penitentiary for life.”

^[88] Greek Penal Code, Art.32(1).

^[89] Supra note 17, at 32: “A right is relative if it is not protected to the full extent of its scope. Justified limitations are thus placed on the right’s full realization. Indeed, we can say that a right is relative whenever the extent of its protection is narrower than its entire scope. The right is relative in that limitations may be imposed on actions or omissions that are otherwise included within its scope.”

^[90] Handyside case, supra note 36, para.49; Müller and others case, supra note 45, para.33; Otto-Preminger-Institut case, supra note 20, para.49; İ.A case, supra note 61, para.23.

^[91] Supra note 17, at 484.

^[92] Ibid., at 349.

^[93] R. Alexy, On Balancing and Subsumption. A Structural Comparison (2003), 16 Ratio Juris, Issue 4, 433 at 442.

^[94] Endicott, supra note 6, at 8-9.

^[95] Webber, supra note 71, at 196.

^[96] For the exact definition of the principle of definitional generosity see Tsakyrakis, supra note 12, at 16; for its implications when it is applied see M. Klatt and M. Meister, Proportionality - a benefit to human rights? Remarks on the ICON controversy, 10 Oxford University Press, ICON (2012), No. 3, 687 at 700.

^[97] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), U.S. Supreme Court.

^[98] Beatty, supra note 6, at 186.

^[99] Tsakyrakis, supra note 12, at 25: “The proper specification of the content of a human right is a specification guided by an understanding of its importance, the point in awarding it this unique status; it is sensitive to the important evaluative questions that recognition of a right raises.”

^[100] Ibid., at 25.

^[101] L. B. Frantz, The First Amendment in the Balance ( 1962), 71 Yale L. J., 1424 at 1435.

^[102] See supra note 2.

^[103] Supra note 71, at 199; A similar approach is adopted by Habermas (supra note 9, at 259) who defines rights as “firewalls” that protect the individuals from the society.

^[104] C. R. Ducat, Modes of Constitutional Interpretation (1978), at 179.

^[105] Nimmer, supra note 7, at 940.

^[106] Supra note 101, at 1449.

^[107] Webber, supra note 66, at 201.

^[108] J. Waldron, A Right-Based Critique of Constitutional Rights (1993), 13 Oxford Journal of Legal Studies, 18 at 30.

^[109] J. Rawls, A Theory of Justice (1971), Oxford University Press, at 3.

^[110] Dworkin, supra note 2, at 193.