Browsing by Subject "Balancing"

This thesis studies the principle of proportionality in the non-discrimination case law of the European Court of Human Rights (the Court). The specific research interest is the content and structure of the proportionality assessment. The general principles on proportionality that the Court has developed in its non-discrimination case law, on legitimate aim, suitability, necessity and balance, is at the center of this thesis. There is currently a lack of an abundant academic discussion on proportionality in the non-discrimination practice of the Court. The thesis is mainly a doctrinal study of the Court’s practice. The thesis also includes a small empirical study of the number of times the Court has mentioned its proportionality principles. The thesis also presents theoretical issues related to proportionality. The research questions are, firstly, regarding content, what kind of elements does the Court evaluate in its proportionality assessment, and how does the Court deal with legitimacy, suitability, necessity and balance? Secondly, on structure, how does the Court structure its proportionality assessment, and does the Court use a vertical or a horizontal proportionality test? Thirdly, how much focus does the Court put on proportionality? Especially in relation to the final question, the thesis investigates how prevalent inconsistencies and ambiguities are in the studied case law. The thesis begins by situating the subsequent discussion into a wider theoretical discussion and into the non-discrimination context. The thesis proceeds by discussing how previous scholarship has understood the Court’s non-discrimination practice on proportionality. The contributions made in this thesis to its research field are made mainly in the subsequent empirical study and the analysis of selected case law from the years 2020-2023. The answer to the first set of questions is found to be that the Court in its case law has repeatedly evaluated legitimate aim, suitability, necessity and balance, but that the Court also refers to other types of elements in its proportionality assessment, such as consistency, relevance and sufficiency. The answer to the second set of questions is found to be that even though the Court’s general principles on proportionality indicate a structure built on the idea of a vertical proportionality test, the case law analyzed seem to point to that the Court often does more of a horizontal proportionality test. The answer to the third set of questions is that the Court does not seem to put, at least explicitly, proportionality front and center in its review of justifications in its non-discrimination case law. The finding on how few times the Court seems to have mentioned its proportionality principles also specifically supports this conclusion. Inconsistencies and ambiguities are prevalent regarding proportionality in the studied case law.