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.