a critical analysis of application of proportionality test and margin of appreciation doctrine by european court of human rights

The european court of human rights, as an independent court, was established to proceed applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention. undoubtedly one of the main concerns of this court, as its name implies, is the protection of human rights and condemnation of states in case of violation. as an undeniable fact, the protection of human rights and public interest together are required for an efficient society. as a result, the european court of human rights must use a mechanism by which it can have a reasonable and balanced operation to actualize these two fundamental values. to approach this aim, the court uses the proportionality test, consisting of three principles of legitimacy, suitability, and necessity. despite its efficient results for the court, the manner in which this test is applied leads to some challenges in the way of keeping a balance between human rights and public interest. by application of margin of appreciation doctrine, this court authorized the member states to evaluate the legitimacy of an aim. therefor in some court’s proceedings there is lack of clarity on the function of margin of appreciation doctrine. this study aims to explore the challenges and gaps in striking balance between individual rights and public interest which the court is facing with. by investigating in ecthr precedents, we find out that puzzling scope of the margin of appreciation, lack of comprehensiveness and clarity are considered as main challenges in the application of margin of appreciation and proportionality test.

a critical analysis of application of proportionality test and margin of appreciation doctrine by european court of human rights

european court of human rights was established in 1959 as an independent court of council of europe in order to deal with alleged violations of human rights which has been enumerated in european convention on human rights. obviously, protection and evolution of human rights obligations is considered as one of the most significant concerns of this court. in addition, the protection of human rights and public interest together are required for an efficient society. as a result, european court of human rights must use a mechanism by which it can have a reasonable and balanced operation to realize these two fundamental values. in order to approach this aim, the court uses the proportionality test, consisting of three principles of legitimacy, appropriateness and necessity. despite its efficient results for the court, the application of this test has its deficiency in keeping a balance between human rights and public interest. this court authorized the member states to evaluate the legitimacy of an aim by themselves, however it should be the court’s task to pass three steps of proportionality test independently. this research mainly concentrates on the evaluation of the european court of human rights from the doctrine of margin of appreciation perspective.