Strasbourg’s application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court ...Strasbourg’s application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union(CJEU) in the complete sense.Consequently,the Strasbourg application of the proportionality has been depicted as a "mysterious house" for the reason that it lacks of certainty.Therefore,some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law.Generally,the proportionality test has two internal functions for the Strasbourg judges:(1) strike fair balance between/among the competing interests;(2) testing on the reasonableness and appropriateness between the measures employed and aim pursued.In the first category,the primary task of the Court is to protect the scope of "essence" of the Convention rights from the interference of collective goods relying on the interest-based rights theory.Beyond this scope,the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities.In some sensitive judgments,the Strasbourg Court tends to impose the onerous responsibility of "burden of proof" to the State authorities,or strategically defers to the domestic decisions unless they will be found "manifestly unreasonable".Secondly,the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued,and then it has to decide whether a less intrusive alternative existed or will possibly be found or not.Sometimes,the Court might impose state authorities an obligation looking for a new alternation.However,due to subsidiarity characteristic of the Strasbourg Court,the task of the assessments sometimes is complicated and time-consuming,so the Court are not capable of evaluations in all occasions.Finally,the Court could strike down the "chilling consequence" caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order.展开更多
The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European ...The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European Convention to an inflation of language used or misused by the Strasbourg Court to preserve the State's 'room for manoeuvre' or 'latitude of deference or error.' In this paper, I divide the concept of margin of appreciation into two categories: the substantive and structural concept. The Strasbourg Court usually generously defers to national decisions in structural scrutiny where it has to respect European pluralism and the collective interests of the contracting parties unless domestic decisions are regarded as 'manifestly unreasonable.' In contrast, the European Human Rights Court scrutinizes carefully in the substantive sense of margin of appreciation. Some factors or test approaches will be identified first, by which the Court substantively narrows or limits the scope of margin preserved for the States. The result of two conceptual margins of appreciation may be reciprocally transformed in some circumstances. When the collective good surely undermines the core of Convention rights, the Court will not stand with the domestic argument since it must ensure the implementation of pan-European human rights standards. On the other side, the Court has no capacity to further increase strict scrutiny in cases where there is a complicated relationship between the means and ends in the proportionality test, implying that domestic courts are better placed than the supranational court given the fact that they know better the local reality and have more local knowledge.展开更多
The COVID-19 pandemic has brought legal challenges to the containment measures adopted by European countries.During the outbreak and containment phase of the pandemic,most European countries adopted measures such as l...The COVID-19 pandemic has brought legal challenges to the containment measures adopted by European countries.During the outbreak and containment phase of the pandemic,most European countries adopted measures such as lockdowns and mandatory home quarantines based on the principle of risk prevention.However,Article 15 of the European Convention on Human Rights and judgments by the European Court of Human Rights require such measures to comply with the principle of proportionality.In view of this,this article examines the European Court of Justice’s loose judgments on the derogation measures during the pandemic,and the European Court of Human Rights’situational judgments in this regard.Based on the analysis of the legitimacy of the principle of risk prevention and the principle of proportionality in responding to public health emergencies,this article prudently examines and predicts the trend of applying the principle of proportionality of risk prevention for the European COVID-19 derogation measures from three perspectives of legitimacy,necessity,and feasibility.展开更多
文摘Strasbourg’s application of proportionality test has some unique features.Due to the Court inherent subsidiary role,it hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union(CJEU) in the complete sense.Consequently,the Strasbourg application of the proportionality has been depicted as a "mysterious house" for the reason that it lacks of certainty.Therefore,some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law.Generally,the proportionality test has two internal functions for the Strasbourg judges:(1) strike fair balance between/among the competing interests;(2) testing on the reasonableness and appropriateness between the measures employed and aim pursued.In the first category,the primary task of the Court is to protect the scope of "essence" of the Convention rights from the interference of collective goods relying on the interest-based rights theory.Beyond this scope,the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities.In some sensitive judgments,the Strasbourg Court tends to impose the onerous responsibility of "burden of proof" to the State authorities,or strategically defers to the domestic decisions unless they will be found "manifestly unreasonable".Secondly,the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued,and then it has to decide whether a less intrusive alternative existed or will possibly be found or not.Sometimes,the Court might impose state authorities an obligation looking for a new alternation.However,due to subsidiarity characteristic of the Strasbourg Court,the task of the assessments sometimes is complicated and time-consuming,so the Court are not capable of evaluations in all occasions.Finally,the Court could strike down the "chilling consequence" caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order.
文摘The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European Convention to an inflation of language used or misused by the Strasbourg Court to preserve the State's 'room for manoeuvre' or 'latitude of deference or error.' In this paper, I divide the concept of margin of appreciation into two categories: the substantive and structural concept. The Strasbourg Court usually generously defers to national decisions in structural scrutiny where it has to respect European pluralism and the collective interests of the contracting parties unless domestic decisions are regarded as 'manifestly unreasonable.' In contrast, the European Human Rights Court scrutinizes carefully in the substantive sense of margin of appreciation. Some factors or test approaches will be identified first, by which the Court substantively narrows or limits the scope of margin preserved for the States. The result of two conceptual margins of appreciation may be reciprocally transformed in some circumstances. When the collective good surely undermines the core of Convention rights, the Court will not stand with the domestic argument since it must ensure the implementation of pan-European human rights standards. On the other side, the Court has no capacity to further increase strict scrutiny in cases where there is a complicated relationship between the means and ends in the proportionality test, implying that domestic courts are better placed than the supranational court given the fact that they know better the local reality and have more local knowledge.
基金the National Social Science Fund of China’s major project“Research on Legislation and Categorization in Emergencies”(20&ZD175)the National Social Science Fund of China’s project“Research on the Relationship between Constitution and International Law”(18BFX034)
文摘The COVID-19 pandemic has brought legal challenges to the containment measures adopted by European countries.During the outbreak and containment phase of the pandemic,most European countries adopted measures such as lockdowns and mandatory home quarantines based on the principle of risk prevention.However,Article 15 of the European Convention on Human Rights and judgments by the European Court of Human Rights require such measures to comply with the principle of proportionality.In view of this,this article examines the European Court of Justice’s loose judgments on the derogation measures during the pandemic,and the European Court of Human Rights’situational judgments in this regard.Based on the analysis of the legitimacy of the principle of risk prevention and the principle of proportionality in responding to public health emergencies,this article prudently examines and predicts the trend of applying the principle of proportionality of risk prevention for the European COVID-19 derogation measures from three perspectives of legitimacy,necessity,and feasibility.
