Balancing Human Rights Through the Prism of ECHR

This contribution is an attempt to illuminate various aspects of the adjudi- cation of conflicts between human rights. The author first argues towards a proper distinction between balancing as a judicial method for resolving such conflicts and the analysis of proportionality stricto sensu in cases concerned with human rights interferences in pursuit of public interest goals. She then ap- proaches a number of problems relating to the determination of the nature of conflicts between human rights and the search for balance between competing human rights. Building upon the case-law of the European Court of Human Rights (ECtHR) and contemporary debates in legal theory on this subject, she argues (1) that the determination of the nature of the conflict between rights is important because it sets the parameters of balancing and (2) that the judicial interpretation of the balance between conflicting rights requires a value-based assessment of the impediment to the enjoyment of one or both rights. Finally, the author looks at the balancing between human rights from the perspective of the relationship between the ECtHR and the domestic courts. This rela- tionship is characterised by, on the one hand, the principle of subsidiarity and the doctrine of margin of appreciation, and, on the other hand, the domestic courts’ obligation to substantiate their decisions which adversely affect human rights on the arguments compatible with the European Convention of Human Rights.

Keywords: European Convention on Human Rights, principle of proportionality, conflict between fundamental rights, balancing, practical concordance, principle of subsidiarity, margin of appreciation.