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Opinion Essay: Balancing Rights under the ECHR

Does the European Convention on Human Rights strike an appropriate balance between the rights of the individual and the interests of the public in preventing or permitting the protection of human rights to be restricted?

Crucial to the functioning European Convention on Human Rights (ECHR or the Convention), is balancing the interests of the public as a whole and the rights of the individual. This is especially true when restricting rights, as individual rights should not be infringed upon without good reason.

Limiting Rights

To analyse the balance of interests when restricting rights, it must be established how rights can be restricted. Contracting States to the ECHR may limit rights in a number of ways. Article 15 allows derogation from certain rights in times of emergency.[1] Convention rights may also be restricted by limitations permitted within the Convention, such as the limitations allowed by Articles 8(2)-11(2).[2] There are other ways in which States may limit rights, such as reservations, but these are the methods of restriction I will be focussing on.

Defining an Appropriate Balance

To gauge whether the ECHR has achieved appropriate balancing, it is best to first define ‘appropriate balancing’. As Greer notes:

‘…its [the ECHR’s] overriding purpose is the judicial protection of designated human rights in the context of democracy and the rule of law, rather than the judicial protection of democracy in the context of human rights…’[3]

Greer indicates that the purpose of the ECHR is to protect individual human rights and not the public interests of the Contracting States. Greer submits that by the ‘priority to rights principle’, which can be found throughout the Convention’s text and jurisprudence, the balance should weigh in favour of individual rights.[4] To be aligned with the original, core aims of the Convention, individual rights should hold a greater weight than collective goals. When referring to public or collective interests, I do not wish to refer to a summation of individual rights. Rather, I refer to interests which may only be achieved on a collective scale, such as those listed in Article 8(2) of the ECHR.[5]

I agree with Greer, based on the key purposes of the Convention, the rights of the individual should take priority. This does not mean public interests have no weight at all, but should have so much weight that they only restrict individual rights when absolutely necessary.

Analysing the Balancing Undertaken by the ECHR

Article 15 of the Convention sets out the process for a State to derogate from rights in times of public emergency.[6]There must be a public emergency,[7] the measure must be strictly required,[8] the measure must comply with other obligations under international law and various procedural requirements. Certain rights in the Convention cannot be derogated from. The existence of these rights acts as evidence for a good level of balancing within the ECHR. Some rights are absolute, they can never be abandoned or restricted. However, it should be noted that States enjoy a certain margin of appreciation when defining a public emergency.

Although rights may be limited elsewhere in the Convention, Articles 8-11 sets a clear basis for when restrictions may be justified on grounds of public policy. As such, I will focus on the limitations of these rights when scrutinising the balancing the European Court of Human Rights (ECtHR) has engaged in so far. Interference with these rights may be justified. There is a three part enquiry for establishing whether a limitation is justified: legal basis for the interference, a legitimate aim pedestals the interference and the interference was necessary in a democratic society.

The part of the enquiry which deals with necessity in a democratic society is where balancing of public interests against individual rights will occur. This is the proportionality test, whether the restriction was proportionate to the aim. There are three stages to establishing whether something is ‘necessary in a democratic society’ (NDS test). The interference must be suitable, necessary and truly proportionate.[9] The final part of this test is where interests are balanced against one another. In this part of the NDS test, States enjoy a certain margin of appreciation. The interests of the society must truly outweigh the interests of the individual in order to satisfy this test.

The NDS test entails a different margin of appreciation for States dependent on the public interest it concerns. As explained in Handyside, State authorities should have a better understanding of necessity in their own State than an international judge.[10]

An example of the ECtHR effectively balancing interests is the case of S and Marper.[11] Here, the interference with individual rights under Article 8 was held to be disproportionate. The interferences failed the NDS test. The ECtHR balanced the competing interests effectively and limited the margin of appreciation enjoyed by the State to ensure the fairest outcome.

The ECtHR also balanced interests in Klass.[12] In this case, the interests of national security were weighed against individual rights. I argue that the ECtHR took a precise and appropriate view to balancing here. Although the State was awarded a large margin of appreciation in defining a threat to national security, they were subject to assessment of adequate and appropriate safeguards to prevent any unjustifiable infringement.

I contend that, in line with its original aims, the ECHR should place more weight on protecting the rights of the individual over protecting public interests. To an extent, the ECtHR has demonstrated this through case law. Some may argue that States are awarded too large of a margin of appreciation through the NDS test. I submit that the best approach to the margin of appreciation is to shape it to the situation at hand, including defining a different margin of appreciation for different public interests, which the ECtHR does. I believe that the ECHR strikes an appropriate balance.

[1] European Convention on Human Rights, art 15 (ECHR). [2] Ibid, arts 8(2)-11(2). [3] Steven Greer, “Balancing" and the European Court of Human Rights”, Cambridge Law Journal, Vol. 63, No. 2 (Jul., 2004), pp. 412-434. [4] Ibid. [5] ECHR, art 8(2). [6] Ibid, art 15. [7] Lawless v Ireland, (1961) Series A Nos 1-3. [8] Aksoy v Turkey, App no. 21987/93, (ECtHR, December 1996). [9] Silver v United Kingdom, (1983) 5 EHRR 347. [10] Handyside v United Kingdom, (1976), Series A No 24. [11] S and Marper v United Kingdom (2008), 30562/04 ECHR 158. [12] Klass v Germany, (1993), Series A No 269.

This piece was originally submitted as a graded work for my undergraduate LLB. This piece was graded as First Class, achieving a score of 100%

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Court Jester is (another) legal blog documenting my own writings and opinions on legal news. I am an aspiring barrister, recent law graduate and a mouthy feminist. My interests lie mainly in criminal,


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