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.
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.
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.
The article examines the problematic aspects of newly created civil property confiscation and concludes that seizure of property per se poses a number of problems in administrative and criminal law that need to be adressed. Moreover, it will be even more problematic in civil proceedings, which should not include criminal law ca tegories and institutes that do not adapt to this process. Criticizing the unclearness and ambiguity of the definitions contained in the draft legislation and the incompleteness, illogicality and contradiction to fundamental legal principles in the draft legislation it self, the author acknowledges that, in keeping with the principle of proportionality, there could be established a model for the confiscation of civil assets, which would allow the property to be seized as evidence when proved the illegality of its origin. The measures laid down and applied by law should be proportionate to the objective pursued, without limiting the rights of the individuals beyond what is necessary to achieve as a legitimate and universally important objective, and would not create suggestions for abuse. The article proposes to consider the creation of a new set of documents that meet the requirements of the constitutional and international instruments.
The article examines the problematic aspects of newly created civil property confiscation and concludes that seizure of property per se poses a number of problems in administrative and criminal law that need to be adressed. Moreover, it will be even more problematic in civil proceedings, which should not include criminal law ca tegories and institutes that do not adapt to this process. Criticizing the unclearness and ambiguity of the definitions contained in the draft legislation and the incompleteness, illogicality and contradiction to fundamental legal principles in the draft legislation it self, the author acknowledges that, in keeping with the principle of proportionality, there could be established a model for the confiscation of civil assets, which would allow the property to be seized as evidence when proved the illegality of its origin. The measures laid down and applied by law should be proportionate to the objective pursued, without limiting the rights of the individuals beyond what is necessary to achieve as a legitimate and universally important objective, and would not create suggestions for abuse. The article proposes to consider the creation of a new set of documents that meet the requirements of the constitutional and international instruments.
The article focuses both on general issues of law reatroactivity and on specific issue of retroactive application of the law on civil confiscation. The latter law currently (Fall of 2019) is in the drafting process at the Parliament of Lithuania. The authors discuss the idea, presented in the jurisprudence of the Constitutional Court of Lithuania, that issues of retroactivity may be approached uniformly, following the same (strict) formula both in penal and other matters. This attitude differs from the jurisprudence of European courts (both ECHR and ECJ) and of German and Latvian Constitutional courts where different approach to penal matters and other (regulatory) matters prevail. The authors note, that unilateral restrictive approach to the issue of law retroactivity in some cases may harm exceptionally important public interests. It might be the case of civil confiscation. If future law on civil confiscation would face challenge in the Lithuanian Constitutional Court regarding retroactivity and the Court would follow its precedents, public interest in public security from corruption and organized crime might be neglected. The paper also discusses the criteria of reasonable retroactive application of the law that were developed in the jurisprudence of the European courts. The authors point out that the obligations and legal consequences that are provided in the draft law on civil confiscation, have already been provided in the law that introduced extended confiscation in the end of 2010. Therefore the criteria of foreseeability would be met as far as the affected assets are acquired after the end of 2010. Furthermore, criteria of proportionality in case of civil confiscation seem plausible as far as this measure is provided for the unexplained property that is controlled by the persons who are related to the serious, organized crime or corruption. The findings of the ECHR in the case Gogitidze v. Georgia and in other cases support these assumptions.
The article focuses both on general issues of law reatroactivity and on specific issue of retroactive application of the law on civil confiscation. The latter law currently (Fall of 2019) is in the drafting process at the Parliament of Lithuania. The authors discuss the idea, presented in the jurisprudence of the Constitutional Court of Lithuania, that issues of retroactivity may be approached uniformly, following the same (strict) formula both in penal and other matters. This attitude differs from the jurisprudence of European courts (both ECHR and ECJ) and of German and Latvian Constitutional courts where different approach to penal matters and other (regulatory) matters prevail. The authors note, that unilateral restrictive approach to the issue of law retroactivity in some cases may harm exceptionally important public interests. It might be the case of civil confiscation. If future law on civil confiscation would face challenge in the Lithuanian Constitutional Court regarding retroactivity and the Court would follow its precedents, public interest in public security from corruption and organized crime might be neglected. The paper also discusses the criteria of reasonable retroactive application of the law that were developed in the jurisprudence of the European courts. The authors point out that the obligations and legal consequences that are provided in the draft law on civil confiscation, have already been provided in the law that introduced extended confiscation in the end of 2010. Therefore the criteria of foreseeability would be met as far as the affected assets are acquired after the end of 2010. Furthermore, criteria of proportionality in case of civil confiscation seem plausible as far as this measure is provided for the unexplained property that is controlled by the persons who are related to the serious, organized crime or corruption. The findings of the ECHR in the case Gogitidze v. Georgia and in other cases support these assumptions.
The article focuses both on general issues of law reatroactivity and on specific issue of retroactive application of the law on civil confiscation. The latter law currently (Fall of 2019) is in the drafting process at the Parliament of Lithuania. The authors discuss the idea, presented in the jurisprudence of the Constitutional Court of Lithuania, that issues of retroactivity may be approached uniformly, following the same (strict) formula both in penal and other matters. This attitude differs from the jurisprudence of European courts (both ECHR and ECJ) and of German and Latvian Constitutional courts where different approach to penal matters and other (regulatory) matters prevail. The authors note, that unilateral restrictive approach to the issue of law retroactivity in some cases may harm exceptionally important public interests. It might be the case of civil confiscation. If future law on civil confiscation would face challenge in the Lithuanian Constitutional Court regarding retroactivity and the Court would follow its precedents, public interest in public security from corruption and organized crime might be neglected. The paper also discusses the criteria of reasonable retroactive application of the law that were developed in the jurisprudence of the European courts. The authors point out that the obligations and legal consequences that are provided in the draft law on civil confiscation, have already been provided in the law that introduced extended confiscation in the end of 2010. Therefore the criteria of foreseeability would be met as far as the affected assets are acquired after the end of 2010. Furthermore, criteria of proportionality in case of civil confiscation seem plausible as far as this measure is provided for the unexplained property that is controlled by the persons who are related to the serious, organized crime or corruption. The findings of the ECHR in the case Gogitidze v. Georgia and in other cases support these assumptions.
