Balancing Test: European Court of Human Rights (ECtHR)
- 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 the interference with the principal right is justified or not in light of the gain in the protection for the competing right or interest in concrete circumstances (Moller, 2012). Balancing, as a form of fundamental rights reasoning, is often contrasted with reason blocking normative reasoning when adjudicating fundamental rights. The latter insists that fundamental rights reasoning should focus on what reasons are incompatible with the recognition or restriction of rights by offering a full normative defence of the object and purpose of rights and how these relate to other normative concerns, rather than through the image of weighing rights and competing interests (Çali, 2004; Tsakyrakis, 2009).
2 The term ‘balancing’ features pervasively in the case law of the European Court of Human Rights (ECtHR) in its assessment of States’ recognition of, or restrictions to, rights provided for in the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘European Convention on Human Rights’, ‘Convention’, or ‘ECHR’). Commentators point out that the emphasis on balancing in the case law of the Court has increased in recent decades, compared to the early case law of the Court (Brems, 2005; Ducoulombier, 2008). Despite its popularity, the reasons why the Court turns to it and how a balance is struck between competing rights or public interests in individual cases remain diverse. Balancing manifests itself in the case law of the ECtHR both as a general principled outlook to human rights adjudication (Goodwin v UK, 1996; Otto Preminger Institut v Austria, 1994), and as a test which aims to weigh excessiveness of restrictions in pursuit of legitimate aims (Von Hannover (No 2), v Germany, 2012; Uner v Netherlands, 2006).
3 Balancing is prevalent, but the ECtHR does not employ balancing in all the cases it adjudicates. When it does employ balancing, it covers wide ground. The Court invokes balancing to adjudicate between what it sees as a vertical conflict between competing rights and general public interests (Otto Preminger Institut v Austria) and horizontally between competing private interests (Evans v UK, 2007; Fretté v France, 2002, para 42). More recently, the Court has turned to balancing as a test to frame, and resolve, what it sees as conflicts between competing rights that require equal respect under the Convention (Axel Springer AG v Germany, 2012; Einarsson v Iceland, 2017), where the active applicant’s rights are framed as being in conflict with a silent third party’s rights.
4 When balancing is invoked, it does not point to a coherent and unified method or test employed consistently across cases. Significantly, for the Court, balancing at times equals a proportionality test according to which the Court aims to identify whether the individual right is excessively burdened compared to the benefits of securing public interests (Alexy, 2003; Renaud v France, 2010, para 38; Constantinescu v Romania, 2012). At other times, the use of balancing simply means that there is a need for domestic authorities to consider competing interests in a transparent and structured way (Rees v UK, 1986; Von Hannover (No 2), v Germany). In the latter form, it is formulated as a stand-alone concern focused on the ‘need to strike a fair balance’ (Mowbray, 2010). In either of its manifestations, the Court applies its broad requirement ‘that all restrictions must be necessary in a democratic society’ (Satakunnan Markkinaporssi Oy and Stamedia Oy v Finland, 2017, para 122). Furthermore, the use of balancing is closely related to whether the Court affords a wide margin of appreciation to State authorities. If the Court does afford a wide margin of appreciation, it asks itself whether it has strong reasons to depart from the balancing originally struck by domestic courts or legislatures (Palomo Sanchez v Spain, 2011; Odièvre v France, 2003, para 44). In turn, whether there is a need for balancing in a case further determines the scope of the margin of appreciation the Court affords to the relevant State (SH and Others v Austria, 2011, para 94).
5 Judges on the bench of the Court, and academic commentators, frequently disagree on whether balancing is the appropriate mode of reasoning as a matter of principle (Tsakyrakis, 2009; Çali, 2007; Simmet 2016; De Schutter and Tulkens 2008; Gerards, 2009), whether the competing interests of individuals and the public are adequately taken into account in the balancing exercises carried out by the Court (Dissenting opinion of Judge Tulkens in Sahin v Turkey, 2005; and Dissenting opinion of Judges Wojtyczek and Kuris in Fürst-Pfeifer v Austria, 2016), or whether it was correct to afford a margin of appreciation to States in balancing exercises (Dissenting opinion of Judge Tulkens in Palomo Sanchez v Spain, 2011).
6 This entry offers a general overview of the diverse ways in which balancing is manifested in the case law of the ECtHR. It presents a threefold argument. First, it argues that the Court does not embrace balancing, understood as a general outlook on how human rights adjudication operates tout court, in all aspects of its case law. The Court rejects balancing in some instances by recognizing that rights protected under the Convention are not compatible with conflicting considerations and have an absolute or near-absolute priority over them. Secondly, it argues that how balancing operates in the case law of the Court is closely tied to the Court’s ability to offer a normative theory on why the interests it seeks to protect under the Convention ought to come before, trump, or order competing interests, public or private. Thirdly, it argues that the balancing tests in the case law of the Court oscillates between concrete and abstract ways of assigning weight to rights and competing interests based on the margin of appreciation it affords to States in defining the scope of, and restrictions on, rights.
7 Section B below shows that the Court’s commitment to balancing, understood as a general commitment to optimization of competing human rights and public interests, co-exists with other interpretive principles, namely absolute rights and the ‘priority to rights’ models of interpretation. Section C focuses on the Convention provisions where balancing as a test becomes pervasive in the Court’s case law, and distinguishes balancing between competing rights and public interests with balancing between competing rights. Section D discusses how the margin of appreciation doctrine undercuts the use of balancing. Section E concludes by pointing to the need to see the Court’s pervasive use of balancing, and its weaknesses, in the wider normative context of the ECtHR’s constantly evolving case law.
B. Absolute Rights, Priority to Rights and Balancing
8 There has been much discussion on whether the very concept of human rights (and constitutional rights) are inseparable from balancing (Beatty, 2005). The proponents of this view hold that rights prima facie require balancing in the legal context, because when a right is claimed it will invariably be in opposition to a competing right or interest (Rivers, 2006). Some commentators (Mowbray, 2010; Gerards, 2009), referring to the Soering judgment of 1989 (Soering v UK, 1989), point out that the ECtHR also takes this view as it recognizes balancing as a principle that applies to the Convention as a whole. Indeed, in this case, the Court stated that ‘…inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’ (Soering v UK, para 89).
9 Taken at face value, this powerful statement, suggests that balancing animates the interpretation of the Convention as a whole. As such, this may be read as the Court taking sides in the long-standing debate between those theorists that see all rights as optimization requirements, where the task of any adjudicator is to optimize rights and common goals (Alexy, 2003), and those that see rights as reason blocking, closely associated with their counter majoritarian function (Habermas, 1992; Greer, 2004). In accordance with the second view, to see rights claims in normative need of balancing is an erroneous view of the very conception of fundamental rights. Fundamental rights reasoning ought to focus on why a right is worth protecting, rather than concentrate on how it weighs against other interests in concrete circumstances.
10 A closer look at the case law of the ECtHR shows that the Court has also recognized that Convention rights may have absolute or near absolute priority over conflicting considerations in some circumstances. In other parts of its case law the Court is ambivalent on the significance of balancing when reaching its adjudicatory outcomes. Whilst in other parts of the case law it has explicitly embraced balancing as being central to its reasoning.
11 The absolute rights case law of the Court, as well as its recognition of the priority to rights principle in some parts of its qualified rights jurisprudence are two areas where the Court rejects balancing at best or is ambivalent about its centrality at worst.
12 We find explicit resistance to the applicability of balancing in the reasoning of the Court in its Article 3 case law on the prohibition of torture (Torture, Prohibition of), inhuman and degrading treatment. In Gäfgen v Germany, which concerned the use of threats of torture by a police officer in order to solicit information about the whereabouts of a kidnapped child, the Court stated, for example, that:
Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of the nation. Article 3, which has been framed in unambiguous terms, recognizes that every human being has an absolute, inalienable right not to be subjected to torture or to inhuman or degrading treatment under any circumstances, even the most difficult. The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests, irrespective of the conduct of the person concerned and the nature of the offence at issue. (Gäfgen v Germany, 2010, para 107).
13 That Article 3 of the Convention is immune from a logic of balancing is also confirmed in the non-refoulement case law of the Court, in respect to which States have argued that in deportation (Aliens, Expulsion and Deportation), extradition, or other types of return cases, the risk of torture an individual faces must be balanced with the competing security risks that an individual poses if not returned (Saadi v Italy, 2008). In Saadi v Italy, rather than only relying on the fact that Article 3 enshrines an absolute rights construction, the Court further establishes normative and substantive principles about why the risk of torture and dangerousness of the person to the society cannot be balanced (paras 139–40). First, the Court holds that torture risk and the dangerousness of the person are incommensurable, they cannot be assessed in relation to one another (para 139). Secondly, the Court rejects the argument that stronger evidence must be provided to demonstrate the risk of ill-treatment where the applicant presents a threat to national security (para 140).
14 Both cases (Gäfgen v Germany; Saadi v Italy) show that the Court employed a reason blocking mode of adjudication, relying on the formal absolute construction of Article 3 of the Convention and on rights operating as trumps against community interests. Having said this, the Court does not treat all aspects of Article 3 as immune from a balancing perspective. This has come to the fore with the series of cases where the Court had to decide whether the return of terminally ill patients to other countries would constitute inhuman treatment in violation of Article 3 (D v UK, 1997; N v UK, 2008). The Court in such cases recognized that the person’s quality of life and their life expectancy would be significantly reduced if returned to another country where they would not be able to receive adequate health care. It did not hold, however, that this was sufficient in itself to constitute a breach of Article 3. Relying on the fact that the Convention primarily protects civil and political rights and not economic and social rights, the Court recognized that a balance must be struck between the rights of States to expel foreigners and the exceptional health conditions of terminally ill patients (N v UK, para 44), noting that balancing was inherent in the Convention system (N v UK,, para 44). Only an imminent risk of death during travel or soon after could trump the right of States (N v UK, para 43).
15 The Court’s approach to qualified rights, or rights with built-in limitations, is another body of case law, where the Court does not openly embrace balancing. It starts with the presumption that rights enjoy priority over public interests. The earliest pronunciation of the priority to rights as a general principle is found in the ‘Belgian Linguistics’ case:
The Court considers that the general aim set for themselves by the Contracting Parties through the medium of the European Convention on Human Rights, was to provide effective protection of fundamental human rights, and this, without doubt not only because of the historical context in which the Convention was concluded, but also of the social and technical developments in our age which offer to States considerable possibilities for regulating the exercise of these rights. The Convention therefore implies a just balance between the protection of the general interest of the Community and the respect due to fundamental human rights while attaching particular importance to the latter. (Case ’Relating to Certain Aspects of the Laws on the use of Languages in Education in Belgium’ v Belgium, 1968, para B.5.)
16 The ‘particular importance of the right’ in the qualified rights case law of the Court manifests itself in the structure of the three-pronged test that the Court employs to analyse restrictions to qualified rights. Under this test, the Court first asks whether the domestic law that brought about the restriction was foreseeable (Groppera Radio AG and Others v Switzerland, 1990) or accessible (Silver and Others v UK, 1983, paras 85–88). If the law does not meet the tests of foreseeability and accessibility, the ECtHR does not carry out any further analysis of the restriction and would find a violation of the Convention on grounds that the restriction does not meet the expectations of legality. Therefore, whether a restriction meets the expectations of rule of law (Sunday Times v UK, 1979) operates as a prior and determinative analysis of restrictions on qualified rights.
17 Only if the restriction is prescribed by law, does the Court then ask whether the restriction pursues one of the legitimate aims which are listed under qualified rights. These legitimate aims encompass both public interests (namely, national security, the economic well-being of the country, territorial integrity, the maintenance of public safety, the protection of health or morals, and the prevention of disorder or crime), and private interests (the protection of the rights, freedoms, and reputations of others, maintaining the authority and impartiality of the judiciary).
18 The Court’s case law on finding legitimate aims under qualified rights has long attracted much criticism (Greer, 1997) because of the Court’s lax approach to identifying legitimate aims for restrictions, including when a State’s arguments for a legitimate aim may not fit with the qualifiers applied to the specific right in question (SAS v France, 2014). In the Court’s recent case law, Bayev v Russia stands out, where the Court held that Russia’s legislative prohibition of the ‘promotion of homosexuality’ among minors did not serve to advance the legitimate aim of the protection of morals, and that such measures are likely to be counterproductive in achieving the declared legitimate aims of the protection of health and the protection of rights of others (Bayev and Others v Russia, 2017, para 83). In general, however, the Court continues to defer to States when accepting aims provided by them as legitimate.
19 The third and final step in the Court’s three-pronged test asks if a restriction that is prescribed by law and serving a legitimate aim as per the public and private interest clauses of its qualified rights, is proportionate to the aim pursued. In the Court’s case law, the necessity in a democratic society test requires the restriction of the right to meet a pressing social need. Pressing social need may refer to both the rationality and the urgency of such a need. As such, the Court may find that the reasons provided for the restriction are not relevant or rational (Sunday Times v UK), that is, the urgency of the measure argued by States does not fulfill its ‘pressing social need’ doctrine (Colaço Mestre and SIC—Sociedade Independente de Comunicação SA v Portugal, 2007, para 32). If the Court is satisfied that the measure meets a pressing social need, it further asks whether the measure is proportionate to the aim pursued (Incal v Turkey, 1998) by focusing on weighing the restriction against the need to protect a public interest. This is also where most of the case law of the ECtHR under qualified rights lies.
20 In cases where the Court approaches a right through a priority of rights over public interests lens, it does not always employ any explicit reference to balancing rights with competing rights or interests. Instead, it may start with assigning an a priori and abstract importance to the right at stake and thus employ reason blocking normative reasoning to dismiss the compatibility of competing interests.
21 This is often the case with the case law on Articles 10 and 11 ECHR, where the Court starts its normative analysis by stating that these rights enshrine fundamental values of democratic societies (Sürek v Turkey (No 1), 1999, para 61; Lindon, Otchakovsky-Laurens and July v France, 2007, para 46; Axel Springer AG v Germany, para 90; and Morice v France, 2015, para 125). It emphasizes that legitimate aims must be narrowly construed (Dumas v France, 2010, para 43; Gouveia Gomes Fernandes and Freitas e Costa v Portugal, 2011, para 47). It may also find a violation on grounds that there was no relevant pressing social need, without discussing balancing (Sunday Times v UK; Karsai v Hungary, 2009). In this regard, even when a qualified right is at stake, the Court may carve out a space for reason blocking, through which, principled and a priori, arguments for relevant competing public interests are discarded and are not seen through the image of weighing them against each other.
22 There are, however, a wide range of cases, where the Court is ambivalent about whether it is employing reason blocking or balancing in the process of its adjudication. It is often the case that the Court uses democratic necessity and proportionality as a combined test in its case law conflating whether the outcome is reached because of the incompatibility of the reasons provided or because rights protecting reasons outweigh the public interests or competing rights at stake (for the conflation of necessity and balancing, Axel Springer AG v Germany, paras 83–84; Uj v Hungary, 2011). In this context, it has also been argued that priority to rights is not necessarily incompatible with balancing, as what the Court is doing is allowing the rights very high importance, so that the public interest is bound to be, in most cases, disproportionate (Cariolou, 2008).
C. Explicit Balancing Qualified Rights against Public or Private Interests without Priority over Rights
23 Whilst the ECtHR has not embraced balancing systematically in all aspects of its case law, there are still broad aspects of much of its case law for which the Court recognizes balancing to be the leading consideration in reaching outcomes. This change in the reasoning of the Court strongly in favour of balancing, understood as seeking to optimize the protection of the right in the face of a competing public interest, can occur with respect to all Convention provisions, and the section above showed that new sub-rights developed under absolute rights provisions are also not immune to this. It is not, however, always clear when the Court does, or does not, embrace a balancing test as central to its reasoning.
24 The pervasiveness of balancing across the Convention rights is due to a reluctance on the part of the Court to develop a normative theory about why a Convention provision, or a sub-right that is enshrined in a provision, must take priority over public interests or other rights and how the protection of the right may a priori outweigh public interest arguments. As balancing evokes a metaphor of weighing competing considerations (Çali, 2007), the less developed the Court’s substantive case law is due to concerns about reasonable democratic disagreement, lack of European consensus or perceived lack of legitimacy to interfere in contested domestic matters, the more the Court turns to balancing as an explicit form of reasoning. The underlying justifications for this tendency in the case law of the Court, however, are multiple and diverse.
25 First, the Court may hold that the very formal structure of how the right is enshrined in the Convention instructs the Court to balance competing interests. This type of reasoning is prevalent with regard to certain aspects of the right to fair trial and the right to property (Ellis, Simms and Martin v UK, 2012; Jahn and others v Germany, 2005, para 93; Sporrong and Lönnroth v Sweden, 1982, para 69) and qualified rights that explicitly refer to the rights and reputations of others or the duties of the right holders as in the case of right to freedom of expression (CICAD v Switzerland, 2016).
26 In such cases the Court refers directly to how the rights are worded in the Convention and justifies its turn to balancing on formalistic grounds. In the adjudication of these Articles, the Court in particular views its role as determining whether domestic courts and legislatures strike a fair balance. For example, in the context of assessing the use of anonymous witnesses as grounds for conviction (Ellis, Simms and Martin v UK), or non-disclosure of information to the accused, instead of developing clear standards, the Court asks whether the reasons given for imposing restrictions on the rights of defendants can be offset by counter reasons provided by the States related to, for example, the protection of witnesses, national security, or the use of sensitive information. Balancing then becomes an investigation of contextual arguments. Each specific case becomes an investigation of whether a fair balance is struck between the competing rights or rights and competing public interests.
27 With respect to right to property the Court’s turn to balancing was explicitly justified with reference to the text of the Convention when it held that:
The concern to achieve this [fair] balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions. (Jahn and others v Germany, para 93; see also Sporrong and Lönnroth v Sweden, para 69).
28 This structural argument, in turn, justifies the Court’s focus on proportionality, between the aim that the State seeks to achieve and the intensity of the restriction, as the key form of reasoning in its right to property cases. The Court also recognizes that the Convention requires a fair balance when the reputation or rights of others are at stake as a matter of principle (Axel Springer AG v Germany) and routinely uses balancing of relevant considerations to decide whether a measure was necessary in a democratic society (Morice v France).
29 Second, the Court may hold that competing public interests put forward in concrete cases, are weighty and compelling, rendering the priority to rights principle untenable and, therefore, optimization of the right and the public interest necessary in the concrete case (Rees v UK; Prager and Oberschlick v Austria, 1995). In cases where the balancing is concerned with rights versus public interests, the Court’s reasoning, at times, points to case specific concerns and arguments put forward by the State authorities (Mubilanzila Mayeka and Kaniki Mitunga v Belgium, 2006, para 81; Rees v UK), as well as more general pronouncements about the normative a priori weight of the nature of the public interest (Rees v UK) and the degree of the restriction (Popov v France, 2012, para 134; Incal v Turkey).
30 Third, the Court may hold that the balancing of competing private interests, which pull in opposing directions, require weighing these interests against each other. This is underlined in the right to privacy case law of the Court, where the right to privacy of two individuals comes into conflict with one another (Evans v UK). The Court thus holds that cases that concern conflicts between two private interests, for example, the interests of two parents, or between a parent and a child, are the natural territory to resolve through balancing those interests under concrete circumstances.
31 Fourth, the Court may decide that what is really at stake in a case is a conflict between two equally protected rights, and in these situations, there is no other way but to seek a balance between these two rights (Delfi AS v Estonia, 2015). As the Court’s case law shows, such rights conflicts can be between the same right for two different individuals, as in the right to a fair trial, when it refers to the fair balance between the parties affected by the proceedings (Regner v Czech Republic, 2017) or the right to privacy of two individuals (Evans v UK). These conflicts can also be between different rights of different individuals. This latter formulation, seeing a case in terms of balancing two equally protected rights, has gained prominence in the last two decades of the Court’s case law. The Court has become more willing to see rights versus public interest cases as rights versus rights of others cases (Ducoulombier, 2008). This, in effect, means that the Court reformulates what is at stake in a case argued by the active party into a case of two conflicting rights that are present in the Convention. It thus recognizes the presence of a silent party in the proceedings who is not present before the Court but whose rights are nevertheless equally protected under the Convention. The Court has followed this line of reasoning by identifying Convention rights conflicts between the right to privacy and freedom of expression (Von Hannover (No 2) v Germany; Delfi AS v Estonia; Fürst-Pfeifer v Austria), the right to privacy and freedom of religion (Fernandez Martinez v Spain, 2014) as well as in the context of freedom of expression and the right to fair trial (Bedat v Switzerland, 2016).
32 In cases where the Court identifies that two Convention rights are in conflict, the Court recognizes that all Convention articles require equal respect (Delfi AS v Estonia) and that there should not be a hierarchy between different rights that are equally protected under the Convention (Von Hannover (No 2) v Germany). According to the Court, the outcome of a case should not vary based on which Article the active applicant argues (Hachette Filipacchi Associés (Ici Paris) v France, 2009; Timciuc v Romania, 2010; Mosley v UK, 2011; Couderc and Hachette Filipacchi Associés v France, 2015). The Court requires that the balance struck by national authorities between those two rights must seek to retain the essence of both rights (Delfi AS v Estonia, para 110). Drawing on the Court’s case law on both Convention articles, the Court then proceeds to create a checklist of circumstances that should be weighed up against each other (for examples of a checklist for Art 8/Art 10 conflicts, see Von Hannover (No 2) v Germany, for Art 6/Art 10, see Bedat v Switzerland). If the Court finds that the domestic authorities have adequately considered the relevant issues that are attached to both rights at stake, they decide that a fair balance is struck.
D. Margin of Appreciation and Balancing
33 A central aspect of the use of balancing by the ECtHR concerns its relationship to the doctrine of margin of appreciation. In the case law of the Court, the need to balance competing interests, or rights, is presented as a reason to accord a wide margin of appreciation (Evans v UK, para 89; Aksu v Turkey, 2012, para 67; Animal Defenders v UK, 2013) and if the Court determines that a State enjoys a wide margin of appreciation, it may defer to the balancing exercise conducted by domestic courts or parliaments (A, B and C v Ireland, 2010, para 231). The identification of a wide margin of appreciation, therefore, is a central factor in the Court’s decision to give a prominent role to balancing and thus to defer to the balancing exercises undertaken by domestic authorities. This seemingly intricate relationship raises important questions about how the accordance of a wide margin of appreciation affects the coherence of the Court’s use of balancing. The identification of a wide margin of appreciation signals that the Court will not weigh the competing interests in a case, but that it will refer to the weighing carried out by domestic authorities unless the outcome is viewed as manifestly disproportionate from the vantage point of the Court. This deferential approach to balancing limits the Court’s ability to ask whether the arguments provided by the domestic authorities justify an excessive burden on the individual, or on the right, when pitted against the importance of the public interest as defended by domestic authorities. There are thus important differences between balancing carried out under a narrow margin of appreciation and under a wide margin of appreciation.
34 The Court accords a wide margin of appreciation to States when it finds that there is a lack of European consensus on the scope of a right or conditions for its legitimate restriction. Lack of European consensus further leads the Court to defer to the balancing exercises carried out by domestic authorities without principled scrutiny of how rights and competing interests are assigned relevant weights (Evans v UK, paras 90–92; Sheffield and Horsham v UK, 1998, para 58). Equally, ‘a clear and continuing international trend’ in giving priority to a right can tip the balance against public interest arguments (Goodwin v UK, para 93). Once the Court establishes consensus with respect to a certain legal issue (recognition of change of gender identity in the case of Goodwin, for example), it may also abandon the rhetoric of balancing (Grant v UK, 2006). This further shows that the ‘fair balance inherent in the Convention system’ (Goodwin v UK, para 93) is subject to dynamic interpretation, allowing the Court to assign a priori importance to rights over public interests, when it identifies a European or global consensus.
35 The explicit emphasis on balancing in the case law of the Court often leads to a recognition that the Court is unable to offer a normative account of why the legal issues raised in a case cannot be dealt with in terms of priority of rights. Balancing between rights and public interests, then, primarily becomes a deferential form of reasoning to domestic authorities. This is a central weakness in the Court’s embracing of balancing rhetoric when discussing the relationship between rights and public interests because it renders the use of balancing clouded. In cases where there is a wide margin of appreciation, balancing by domestic authorities becomes replaces the necessity in a democratic society test (Fernandez Martinez v Spain, para 122).
36 The Court’s more recent endeavour, providing a checklist for competing rights, which must be equally protected, does not escape the potential distorting effects of the margin of appreciation doctrine either. A core aspect of the checklist approach is that the Court does not necessarily engage de novo in whether the competing rights are balanced appropriately, but whether the domestic courts have taken into account the full range of factors that flow from the two conflicting Convention rights. As the Court recognizes in its case law, ‘If the balancing exercise has been carried out by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for theirs’ (Von Hannover (No 2) v Germany). This standard, however, begs the question of how the Court assesses that the criteria laid down by the Court is applied appropriately. This is because the checklists offered by the Court do not predefine what weight should be given to competing considerations and therefore are open to multiple interpretations. In the Court’s balancing of conflicting rights case law, this means that the Court routinely carries out a procedural review of balancing exercises by domestic authorities (Çali, 2016) and moves further away from developing human rights standards for Europe as a whole. Some commentators, however, also hold that the pervasive use of balancing in the Court’s case law should not be taken at face value as this may simply pay lip service to balancing and proportionality and not reflect what the Court actually does in terms of its reasoning (Tsakyrakis, 2009, 491). That is, balancing can also be seen as part of the normative development of the rights in the Convention. In this vein, the Court perhaps is a more pragmatic user of balancing than some domestic constitutional courts.
37 The past three decades have been dubbed as an ‘age of balancing’ (Aleinikoff, 1987). This review shows that the ECtHR has not been immune from the popularity of balancing in human rights adjudication and it has embraced the weighing of competing interests across a broad range of its case law. Balancing is not the only game in town for the Court, but it is certainly pervasive across the Convention.
38 The Court turns to balancing across a diverse set of rights and with respect to both vertical (rights and public interest) and horizontal (two conflicting rights) conflicts. What is more, the Court has been willing to reformulate what it has once seen as rights versus public interests conflicts to conflicts between rights issues and thus rendered balancing more permeating in its jurisprudence.
39 The Court’s explicit use of balancing as a doctrine of adjudication often attracts a range of well-versed criticisms of balancing in the domain of constitutional law (Klatt and Meister, 2012). First, balancing presupposes commensurability of values. (Tsakyrakis, 2009). Secondly, when the Court enters into a weighting exercise, this raises concerns about how it identifies the relative importance of competing interests and values (Çali, 2007, also see the dissenting opinion of Judge Tulkens in Sahin v Turkey). Thirdly, offering a long checklist of considerations to be balanced against each other may get in the way of reaching balanced outcomes (Dissenting opinion of Judges Wojtyczek and Kuris in Fürst-Pfeifer v Austria).
40 This analysis also shows that the Court continues to employ absolute rights and priority to rights reasoning to make certain rights resistant to balancing in the light of competing considerations. This is particularly the case when the text of the Convention is on the side of the Court (as in the case of absolute rights) and when the Court is able to develop a normative theory of why certain sub-rights are essential to the very health of democratic legal orders (as in the case of political expression). Yet, the Court’s switch from a priority to rights model to no priority to rights forms of reasoning (or vice versa) remains vague. Balancing helps the Court to clarify its interpretation of the Convention through the identification of relevant concerns and the weight to be assigned to them and, at the same time, risks undermining the Convention by taking with one hand what the Convention gives as rights. The risks of undermining the very idea of rights through the use of ad hoc balancing, the circular relationship between balancing and the margin of appreciation doctrine and the indeterminacy that comes from the use of balancing on a case by case basis will continue to be challenges faced by the ECtHR.
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