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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Balancing Test: European Court of Human Rights (ECtHR)

Başak Çali

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 23 September 2020

Subject(s):
Margin of appreciation — Judicial reasoning — Human rights

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

1 Balancing is a central judge-made doctrine of constitutional rights and international human rights law adjudication. It is grounded in the central premise that adjudication of fundamental rights claims must take into account other competing rights or public interests. Whether a fundamental rights claim holds depends on the identification of competing concerns and a careful assigning of comparative weight to the right at stake, and its restriction, with the other rights or concerns under competition. This process aims to reach an optimal outcome based on whether...
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