The Application of the Principle of Proportionality in the European Court of Human Rights

• Main Authors: Chou, Pei-Chuan, 周珮娟
• Other Authors: CHEN, CHUN-SHENG
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/31155574307439122812

碩士 === 國立臺北大學 === 法律學系一般生組 === 97 === The principle of proportionality under Article 23 of the Constitution provides a main method as to measure the limitation of the fundamental rights when the Grand Justices of the Constitutional Court issue the interpretation of Constitution, but however there is huge controversy over the meanings of this principle. The Federal Constitutional Court of Germany has established a tripartite process of assessment: suitability, necessity and proportionality in stricto sensu. Contrastly, the Supreme Court of the United States has developed diversified standards of judicial review when different fundamental rights are concerned. The question should be raised is how exactly other legal system interpret this principle, if it is possible to combine these two opposite approaches in a coherent way? This thesis will try to use the European Court of Human Rights as an example to examine a distinct aspect of the principle of proportionality. The ECHR determined whether the interference infringes the European Convention for the Protection of Human Rights and Fundamental Freedoms as to review whether it was “necessary in a democratic society”, which is a requirement prescribed by the Convention. It has been stated in the Court’s case-law that the adjective “necessary” implies a “pressing social need”. Therefore, whether it is “proportionate to the legitimate aim pursued” and whether the reasons given by the national authorities to justify it are “relevant and sufficient” are for the Court to decide the final determination. Furthermore, it must strike a fair balance between the interests of public and individual at stake. As a result, examining the circumstances of each case and adopt of a substantial approach in assessment must be a priority when applying the principle of proportionality.