The European Court of Human Rights on the Principle of Proportionality in “Russian” Cases

Abstract

Proportionality is one of main principles scrutinizing actions adopted by national authorities which restricts rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. When the arrest of a person would be disproportional to the gravity of committed crime? How one could balance the journalists’ freedom of expression with the right to privacy of public person? Such and many other issues of conflicts between fundamental rights and rights of others or public interests has became routine technique in the case-law of European Court of human rights including the huge number of applications brought to Strasbourg from Russia. The paper starts out from general overview of proportionality principle. Analysis of both constitutional provisions and case-law of modern democracies support the argument that this principle has the status of international customary rule. It seems to be relevant in the light of unwritten character of proportionality in ECHR. Further it argues on fourth-elements structure of proportionality principle and considers its application in the cases bringing to the ECtHR versus Russia. This approach didn’t mean that Russian cases are something special just the opposite. Those local examples demonstrate the general trend in ECtHR case-law on proportionality. Simultaneous there are some exceptions when ECtHR taking into account the transition character of Russian economic, political and legal system. Also the selection of case-law which illustrates the main points on proportionality is connected with importance of particular conventional rights to Russian applicants. Such selectivity of case-analysis is supported by official statistics of ECtHR. This study has in some extent the critical approach. There are objections in academia against proportionality test such as the legitimacy of courts and judge-made law, as well as wide discretion and subjectivity of judges in this regard. Some of these critics will be explored in the connection with elements of proportionality.