CYIL vol. 12 (2021)
Jennie Edlund – Václav Stehlík CYIL 12 (2021) One reason why the Court systematically and clearly should apply a test more similar to the three-part test of proportionality is that the means-ends test would allow the Court to examine the justification of the reasonableness of the choice of means or instruments which forms a separate and significant component of the reasonableness of an interference with fundamental rights. Another reason for the Court to apply the three-part proportionality test is that the means-ends test might reduce the difficulties linked to the balancing assessment. There would be no need to assess whether the state did strike a fair balance if the means chosen were found inadequate or unnecessary. Only when the Court finds the chosen means to be adequate and necessary to achieve the ends pursued, would there be a need for the Court to do a balancing test. 72 The measure or instrument has to be effective to further the aim pursued. This requires the Court to make an assessment of the casual link between means and ends which can be very difficult. 73 The ECtHR is usually dealing with this problem by accepting very general and abstract aims, such as protection of national security as the basis of the justifiability of interference with fundamental rights. It is hard to apply any sound proportionality test on the basis of such broad aims as ‘the general interest’. 74 To solve the problem by finding the ‘right’ level of effectiveness according to the circumstances of the case the Court may instead use a superficial or deferential test of effectiveness when the states have been given a wide margin of appreciation. In these kinds of circumstances, the Court may accept that the measure is only partly effective or not entirely ineffective. By contrast, in cases where the interference with the interest is more serious the judicial test should be less superficial or deferential and greater demand may be placed on the casual relation between means and ends. 75 In order to determine the appropriate level of intensity of review the Court might use the margin of appreciation doctrine. 76 When a wide margin of appreciation is left to the states a deferential review could be chosen which means that the Court should merely examine whether the measure at hand is not manifestly ineffective to achieving the ends pursued. On the contrary, if a narrow margin of appreciation is left to the states, the Court has to conduct an intensive, strict review. 77 If the Court would use the means-ends test thoroughly it could be an important complement to the balancing test. The means-ends test would require the Court to determine explicitly the interests involved in the case and to give the reasons why the measures were used to achieve the goals, which is often left out in the balancing test.
72 Ibid, p. 488. 73 Ibid, p. 474.
74 Hirschberg, Lothar, Der Grundsatz der Verhältnismässigkeit (The principal of proportionality), 1981, as quoted in Gerards, Janneke, How to improve the necessity test of the European Court of Human Rights , Oxford University Press and New York University School of Law, 2013, p. 480. 75 Gerards, Janneke, How to improve the necessity test of the European Court of Human Rights , Oxford University Press and New York University School of Law, 2013, p. 475 ff. 76 Gerards, Janneke, (2011) Pluralism, Deference and the Margin of Appreciation Doctrine , 17 European Law Journal . 77 Gerards, Janneke, How to improve the necessity test of the European Court of Human Rights , Oxford University Press and New York University School of Law, 2013, p. 489.
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