The dissertation explores the principle of proportionality as an instrument deriving from the notion of "democratic society" and applied by the European Court of Human Rights (ECtHR) in order to establish whether national institutions succeeded in striking a fair balance between the conflicting Convention rights or between competing individual and public interests. In the first chapter, after presenting the origins of the principle, the development of a three-tiered proportionality test and its dissemination, the main parameters relevant for the analysis of this principle are identified and the main issues of academic discussion concerning the application of proportionality by the ECtHR are revealed. The second chapter explores the evolution of the application of the proportionality principle in the case law of ECtHR and reveals the main features of proportionality test as applied in the early practice of Convention institutions. The third chapter deals with the interaction of the principles of proportionality and subsidiarity, in particular examining the impact of margin of appreciation doctrine upon the proportionality assessment conducted by the ECtHR and analysing the contents and interplay of the factors determining the width of the margin of appreciation. The forth chapter explores both commonalities and peculiarities of the application of proportionality principle in the context of different Convention rights and exposes the main criteria relevant to the balancing exercise performed by the Court. The final chapter assesses the balancing-based model of proportionality test as applied by the ECtHR, identifying the most prospective trends of its application.
The dissertation explores the principle of proportionality as an instrument deriving from the notion of "democratic society" and applied by the European Court of Human Rights (ECtHR) in order to establish whether national institutions succeeded in striking a fair balance between the conflicting Convention rights or between competing individual and public interests. In the first chapter, after presenting the origins of the principle, the development of a three-tiered proportionality test and its dissemination, the main parameters relevant for the analysis of this principle are identified and the main issues of academic discussion concerning the application of proportionality by the ECtHR are revealed. The second chapter explores the evolution of the application of the proportionality principle in the case law of ECtHR and reveals the main features of proportionality test as applied in the early practice of Convention institutions. The third chapter deals with the interaction of the principles of proportionality and subsidiarity, in particular examining the impact of margin of appreciation doctrine upon the proportionality assessment conducted by the ECtHR and analysing the contents and interplay of the factors determining the width of the margin of appreciation. The forth chapter explores both commonalities and peculiarities of the application of proportionality principle in the context of different Convention rights and exposes the main criteria relevant to the balancing exercise performed by the Court. The final chapter assesses the balancing-based model of proportionality test as applied by the ECtHR, identifying the most prospective trends of its application.
The dissertation explores the principle of proportionality as an instrument deriving from the notion of "democratic society" and applied by the European Court of Human Rights (ECtHR) in order to establish whether national institutions succeeded in striking a fair balance between the conflicting Convention rights or between competing individual and public interests. In the first chapter, after presenting the origins of the principle, the development of a three-tiered proportionality test and its dissemination, the main parameters relevant for the analysis of this principle are identified and the main issues of academic discussion concerning the application of proportionality by the ECtHR are revealed. The second chapter explores the evolution of the application of the proportionality principle in the case law of ECtHR and reveals the main features of proportionality test as applied in the early practice of Convention institutions. The third chapter deals with the interaction of the principles of proportionality and subsidiarity, in particular examining the impact of margin of appreciation doctrine upon the proportionality assessment conducted by the ECtHR and analysing the contents and interplay of the factors determining the width of the margin of appreciation. The forth chapter explores both commonalities and peculiarities of the application of proportionality principle in the context of different Convention rights and exposes the main criteria relevant to the balancing exercise performed by the Court. The final chapter assesses the balancing-based model of proportionality test as applied by the ECtHR, identifying the most prospective trends of its application.
The dissertation explores the principle of proportionality as an instrument deriving from the notion of "democratic society" and applied by the European Court of Human Rights (ECtHR) in order to establish whether national institutions succeeded in striking a fair balance between the conflicting Convention rights or between competing individual and public interests. In the first chapter, after presenting the origins of the principle, the development of a three-tiered proportionality test and its dissemination, the main parameters relevant for the analysis of this principle are identified and the main issues of academic discussion concerning the application of proportionality by the ECtHR are revealed. The second chapter explores the evolution of the application of the proportionality principle in the case law of ECtHR and reveals the main features of proportionality test as applied in the early practice of Convention institutions. The third chapter deals with the interaction of the principles of proportionality and subsidiarity, in particular examining the impact of margin of appreciation doctrine upon the proportionality assessment conducted by the ECtHR and analysing the contents and interplay of the factors determining the width of the margin of appreciation. The forth chapter explores both commonalities and peculiarities of the application of proportionality principle in the context of different Convention rights and exposes the main criteria relevant to the balancing exercise performed by the Court. The final chapter assesses the balancing-based model of proportionality test as applied by the ECtHR, identifying the most prospective trends of its application.
THE INTERPRETATION OF THE PRINCIPE OF PROPORTIONALITY IN THE PRACTICE OF THE EUROPEAN COURT OF JUSTICE SUMMARY The topic of this thesis is: the interpretation of the principle of proportionality pursuant to the practice of the European Court of Justice. It discusses the very beginning of this principle and its establishment in the law of the European Union: from the 1951 Treaty of Paris to the Treaty establishing a Constitution for Europe. The European Court of Justice explains the principle of proportionality as a concept of justice. The Court uses this principle's criteria, which are sometimes also called a test of proportionality, in its practice. These criteria demand that suitable measures, necessary in settling the disputes that arise in the European Union, are used in the pursuance of lawful aims. The use of the principle of proportionality occupies a special place in evaluating the behaviour of the member states when they operate at the limits of Community law and when national measures, which the Consolidated Treaty of the European Union grants and allows them to use, are debated. The use of these national measures restricts the exercise of the freedoms of contract, i.e. the free movement of services, goods, people, and capital. By interpreting and following the principle of proportionality in the practice of the European Court of Justice, the granted freedoms are guaranteed and the behaviour of the states evaluated in pursuing the set aims of the European Union. The aim of this thesis is, on the basis of the practice of the European Court of Justice, to reveal the content of the principle of proportionality and the specifics of its use as well as to discuss each specific freedom granted by the European Union in its proper context.
THE INTERPRETATION OF THE PRINCIPE OF PROPORTIONALITY IN THE PRACTICE OF THE EUROPEAN COURT OF JUSTICE SUMMARY The topic of this thesis is: the interpretation of the principle of proportionality pursuant to the practice of the European Court of Justice. It discusses the very beginning of this principle and its establishment in the law of the European Union: from the 1951 Treaty of Paris to the Treaty establishing a Constitution for Europe. The European Court of Justice explains the principle of proportionality as a concept of justice. The Court uses this principle's criteria, which are sometimes also called a test of proportionality, in its practice. These criteria demand that suitable measures, necessary in settling the disputes that arise in the European Union, are used in the pursuance of lawful aims. The use of the principle of proportionality occupies a special place in evaluating the behaviour of the member states when they operate at the limits of Community law and when national measures, which the Consolidated Treaty of the European Union grants and allows them to use, are debated. The use of these national measures restricts the exercise of the freedoms of contract, i.e. the free movement of services, goods, people, and capital. By interpreting and following the principle of proportionality in the practice of the European Court of Justice, the granted freedoms are guaranteed and the behaviour of the states evaluated in pursuing the set aims of the European Union. The aim of this thesis is, on the basis of the practice of the European Court of Justice, to reveal the content of the principle of proportionality and the specifics of its use as well as to discuss each specific freedom granted by the European Union in its proper context.
In this work the concept of principle of proportionality was analyzed and how the mentioned above principle has historically progressed since the ancient times. A huge impact regarding the content of proportionality principle develpment had Germany, since in this country the proportionality test and its elements have been applied for 50 years already. Also, in this work, the concepts of proportionality, such as double proportionality test are discussed. Later, it examines how the proportionality test is applied respectively by the ECJ and the ECtHR and how the elements of test are specifically assessed, for example, the ECJ sometimes applies not the full test but only its elements - adequacy and necessity. In this case, when the proportionality test is applied, the ECJ also takes into account the actions of which subjects are being examined (Member States or EU institutions) in order to choose the intensity and detail of test accordingly. On the same note, the work reviews the recent tendency in the application of the principle of proportionality and compares how the principle is interpreted in similar cases. Analyzing the application of the principle of proportionality in ECJ case law in relation to the protection of personal data, it shall be noted that the principle of proportionality is mainly used to help find balance between different fundamental rights. Examining how different fundamental rights and the principle of proportionality are balanced, it should be stated that the ECJ gives more discretion to the member states, in case the case concerns health care. Nevertheless, the restrictions imposed by the Member States must be proportionate and the least restrictive measure shall be chosen, and it must be ensured that the measures taken are not discriminatory.
In this work the concept of principle of proportionality was analyzed and how the mentioned above principle has historically progressed since the ancient times. A huge impact regarding the content of proportionality principle develpment had Germany, since in this country the proportionality test and its elements have been applied for 50 years already. Also, in this work, the concepts of proportionality, such as double proportionality test are discussed. Later, it examines how the proportionality test is applied respectively by the ECJ and the ECtHR and how the elements of test are specifically assessed, for example, the ECJ sometimes applies not the full test but only its elements - adequacy and necessity. In this case, when the proportionality test is applied, the ECJ also takes into account the actions of which subjects are being examined (Member States or EU institutions) in order to choose the intensity and detail of test accordingly. On the same note, the work reviews the recent tendency in the application of the principle of proportionality and compares how the principle is interpreted in similar cases. Analyzing the application of the principle of proportionality in ECJ case law in relation to the protection of personal data, it shall be noted that the principle of proportionality is mainly used to help find balance between different fundamental rights. Examining how different fundamental rights and the principle of proportionality are balanced, it should be stated that the ECJ gives more discretion to the member states, in case the case concerns health care. Nevertheless, the restrictions imposed by the Member States must be proportionate and the least restrictive measure shall be chosen, and it must be ensured that the measures taken are not discriminatory.
In this work the concept of principle of proportionality was analyzed and how the mentioned above principle has historically progressed since the ancient times. A huge impact regarding the content of proportionality principle develpment had Germany, since in this country the proportionality test and its elements have been applied for 50 years already. Also, in this work, the concepts of proportionality, such as double proportionality test are discussed. Later, it examines how the proportionality test is applied respectively by the ECJ and the ECtHR and how the elements of test are specifically assessed, for example, the ECJ sometimes applies not the full test but only its elements - adequacy and necessity. In this case, when the proportionality test is applied, the ECJ also takes into account the actions of which subjects are being examined (Member States or EU institutions) in order to choose the intensity and detail of test accordingly. On the same note, the work reviews the recent tendency in the application of the principle of proportionality and compares how the principle is interpreted in similar cases. Analyzing the application of the principle of proportionality in ECJ case law in relation to the protection of personal data, it shall be noted that the principle of proportionality is mainly used to help find balance between different fundamental rights. Examining how different fundamental rights and the principle of proportionality are balanced, it should be stated that the ECJ gives more discretion to the member states, in case the case concerns health care. Nevertheless, the restrictions imposed by the Member States must be proportionate and the least restrictive measure shall be chosen, and it must be ensured that the measures taken are not discriminatory.
In this work the concept of principle of proportionality was analyzed and how the mentioned above principle has historically progressed since the ancient times. A huge impact regarding the content of proportionality principle develpment had Germany, since in this country the proportionality test and its elements have been applied for 50 years already. Also, in this work, the concepts of proportionality, such as double proportionality test are discussed. Later, it examines how the proportionality test is applied respectively by the ECJ and the ECtHR and how the elements of test are specifically assessed, for example, the ECJ sometimes applies not the full test but only its elements - adequacy and necessity. In this case, when the proportionality test is applied, the ECJ also takes into account the actions of which subjects are being examined (Member States or EU institutions) in order to choose the intensity and detail of test accordingly. On the same note, the work reviews the recent tendency in the application of the principle of proportionality and compares how the principle is interpreted in similar cases. Analyzing the application of the principle of proportionality in ECJ case law in relation to the protection of personal data, it shall be noted that the principle of proportionality is mainly used to help find balance between different fundamental rights. Examining how different fundamental rights and the principle of proportionality are balanced, it should be stated that the ECJ gives more discretion to the member states, in case the case concerns health care. Nevertheless, the restrictions imposed by the Member States must be proportionate and the least restrictive measure shall be chosen, and it must be ensured that the measures taken are not discriminatory.
Fight against terrorism is an important public interest. Data on natural persons that belongs to the area of their private life could help the state in the aforementioned fight. Therefore, the state may be interested in collecting the data on all the natural persons within its jurisdiction in order to prevent terrorist attacks. This raises the question if the state could collect that information without any legal restrictions. In this work, the relevant provisions of universal international law, the law of the Council of Europe, the European Union and Lithuania will be examined and the answer to the question will be provided. In the universal international law, 17 "sectorial" treaties describe certain types of behaviour that can be called terrorism. Therefore, the present concept of terrorism is very fragmented, i. e. different treaties directly or indirectly provide the definition of terrorism applied just for that certain treaty. It is important to mention that the inclusion of certain features in the concept of terrorism endangers the human rights protected by the international law and may unreasonably restrict the possibilities of freedom fighters to defend themselves from illegal foreign occupation or to seek to realise the right to self-determination. For example, the inclusion of substantial harm to the environment in the definition of terrorism as an alternative feature of this crime may unreasonably restrict the possibilities of freedom fighters, as they may have no viable alternatives to resist illegal violence used against them. The serious harm to property, as an alternative feature of terrorism, may lead to the infringement of the rights of legal protesters. It is also important to mention that some features of the crime of terrorism are not comprehensively defined concepts, e. g. serious harm to property, serious injury or substantial harm to the environment. Therefore, there is the risk that even not considerably dangerous behaviour may be mistakenly called terrorism. As a result, various human rights may be infringed. On the other hand, many of these problems could be avoided by the appropriate interpretation of the provisions of the treaties, as all of them directly or indirectly emphasize the necessity to respect human rights, provides for the possibility to reject a request for extradition if it is reasonably believed that the person will be prosecuted for his nationality, ethnic origin, race, religion or political opinion and as states have other international obligations. The Council of Europe defines the concept of terrorism by making references to universal "sectorial" treaties, but it also define some aspects of the crime of terrorism directly. The European Union has chosen a different way, as it provides the general definition of the crime of terrorism. It is important to mention that both the law of the Council of Europe and the law of the European Union recognize the need to respect human rights during the fight against terrorism. Concerning the definition of terrorism, Lithuania has obliged itself by some universal international treaties and certain treaties of the Council of Europe. Moreover, Lithuania is a member of the European Union therefore the law of the latter is also applied in this country. Thus the provisions of the aforementioned types of law have affected the national criminal law of Lithuania. The criminal code of Lithuania defines two groups of crimes related to terrorism, i. e. the crimes of terrorism and the crimes related to terrorist activities. It is important to mention that the two groups of crimes are not necessarily especially dangerous. All the aforementioned levels of law emphasize the necessity to respect human rights in the fight against terrorism. And the right to private life is one of them. According to the universal international law, the law of the Council of Europe, the European Union and Lithuania, the private life of an individual is a concept that cannot be defined comprehensively. This concept is a very broad one and the essence of it is explained by giving examples of different aspects of the private life of natural persons. All the aforementioned levels of law recognise that the right to private life can be limited. However, this may be done only if certain legal requirements, including the principles of necessity and proportionality, are met. It must be noted that the sensitive areas of the private life of individuals have greater protection, therefore it is harder to justify the interference into them. Automatic measures may also cause problems as, in certain cases, they may be inconsistent with the obligation of the state to take into account the circumstances of the situation and to follow the principles of necessity and proportionality (Lithuanian law does not allow such measures, as, according to the Constitution, the information about the private life of an individual can be collected only if a court has authorized it by a reasoned decision). According to the universal international law, the law of the Council of Europe and Lithuanian law, it may be derogated from the right to private life in an extraordinary situation, but certain legal requirements, including the principles of necessity and proportionality, must also be fulfilled. In conclusion, the state may limit the right to private life of individuals during the fight against terrorism. However, there are legal restrictions for such interference.
This article analyzes the amendments to the norms of the Criminal Code of the Republic of Lithuania that has raised the minimum and maximum amounts of the fines to be imposed, assessing these changes according to the criteria of proportionality, purpose of punishment and practical applicability. The article also examines the possible negative consequences of these changes. In the last twelve years the criminal legislature has repeatedly raised the amount of the fines to be imposed. According to the author, these decisions, based on the illusory view of the effectiveness of severe pecuniary sanctions, are apparently contrary to the principles of proportionality and reasonableness, and have the negative side-effect of reducing the applicability of the fine. In the absence of proper individualization as well as comprehension that inadequate fines are not recoverable, it is predictable that the case law will prioritize other punishments including imprisonment. In order to give the fine a greater perspective in case law, the author proposes to exempt this punishment from the general rule contained in the Criminal Code which requires that the size of punishment is calculated from an average of minimum and maximum sizes.
This article analyzes the amendments to the norms of the Criminal Code of the Republic of Lithuania that has raised the minimum and maximum amounts of the fines to be imposed, assessing these changes according to the criteria of proportionality, purpose of punishment and practical applicability. The article also examines the possible negative consequences of these changes. In the last twelve years the criminal legislature has repeatedly raised the amount of the fines to be imposed. According to the author, these decisions, based on the illusory view of the effectiveness of severe pecuniary sanctions, are apparently contrary to the principles of proportionality and reasonableness, and have the negative side-effect of reducing the applicability of the fine. In the absence of proper individualization as well as comprehension that inadequate fines are not recoverable, it is predictable that the case law will prioritize other punishments including imprisonment. In order to give the fine a greater perspective in case law, the author proposes to exempt this punishment from the general rule contained in the Criminal Code which requires that the size of punishment is calculated from an average of minimum and maximum sizes.
This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term "armed attack" in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive use of military force against emerging threats has no safeguards. The examination of customary law prior and after September 11, 2001, revealed that a new rule, which would allow states to use military force in self-defence, was not created, because there is a lack of opinio juris and state practice. The conclusion is drawn that preemptive use of force is not legal under international law.
This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term "armed attack" in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive use of military force against emerging threats has no safeguards. The examination of customary law prior and after September 11, 2001, revealed that a new rule, which would allow states to use military force in self-defence, was not created, because there is a lack of opinio juris and state practice. The conclusion is drawn that preemptive use of force is not legal under international law.
