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Rethinking the Method and Function of Proportionality Test in the European Court of Human Rights
August 12,2016   By:CSHRS
Rethinking the Method and Function of Proportionality Test in the European Court of Human Rights
 
FAN Jizeng* 
 
 
Abstract: Strasbourg’s application of proportionality test has some unique features. Due to the Court inherent subsidiary role, It hardly transplants the formulas and criteria adopted by the German Constitutional Court or Court of Justice European Union CJEU in the complete sense. Consequently, the Strasbourg application of the proportionality has been depicting as a “mysterious house” for the reason that it lacks of certainty. Therefore, some scholars often worry the application of the proportionality test will threaten the predictability and the Strasbourg rule of law. Generally, the proportionality test has two internal functions for the Strasbourg judges: (1) strike fair balance between/among the competing interests; (2) testing on the reasonableness and appropriateness between the measures employed and aim pursued. In the first category, the primary task of the Court is to protect the scope of “essence” of the Convention rights from the interference of collective goods relying on the interest-based rights theory. Beyond this scope, the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities. In some sensitive judgments, the Strasbourg Court tends to impose the onerous responsibility of “burden of proof” to the State authorities, or strategically defers to the domestic decisions unless they will be found “manifestly unreasonable”. Secondly, the Court must take a scrutiny towards the appropriateness between the means employed and ends pursued, and then it has to decide whether a less intrusive alternative existed or will possibly be found or not. Sometimes, the Court might impose state authorities an obligation looking for a new alternation. However, due to subsidiarity characteristic of the Strasbourg Court, the task of the assessments sometimes is complicated and time-consuming, so the Court are not capable of evaluations in all occasions. Finally, the Court could strike down the “chilling consequence” caused by some few of the legitimate measures which may highly potentially threaten the individual rights in the National legal order.
 
Key words: proportionality principle, subsidiary role, margin of appreciation, balance between competing interest, “means-ends” test, chilling effects, burden of proof 
 
I. Introduction: Origin, History and Evolution of the Proportionality Principle from a Comparative Perspective
The proportionality test, pervasively regarded as one of most popular technologies relating to the fundamental rights in the recent decades1, may trace back its origin to the Ancient Greece. In Aristotle’s works Nicomachean Ethics, distributive justice was justified as an effective proportional measures, could be generally regarded as the earliest historical source of the contemporary principle of proportionality.2The Code of Hammurabi, an ancient Babylonian legislation dating back to 1722 BC, incorporates the legal proverbs “an eye for eye, a tooth for a tooth”, which explicitly imposes a proportional penalty to the convicted criminals. The Magna Carta and 1689 English Bill of Rights also embodied the “proportional punishment” under which the judicial sanctions towards the convicted criminals must be in proportional with the harmful consequence of criminal activities. One English judge has ever explained the principle of proportionality with the plain English words that “you could not crack a nut with a hammer, if a crack would do that”.
The modern principle of proportionality was born in the European Continental, as the law was being codified along the Rechtsstaat line3, and refined by the Prussian Administrative Court in the end of 19th century.4 In the case of Kreuzberg5, the Prussian police invoked the relevant provisions empowering them to adopt the administrative measures “as necessary for the maintenance of public order” in that occasion. However, the Prussian Administrative Court argued that the measures adopted by the policy must not be exceed to the necessary requirement according to the pursued objective. The Court thereby struck down the Berlin Ordinance on the ground that the government could only act to prevent danger to the public safety and could not impose its own aesthetic judgment. Consequently, the principle of necessity became the very essential part of Prussian model of proportionality test, which was taken advantage as a fundamental judicial tool with respect to review the legality of the governmental administration. After the World War II, the German Constitutional Court developed a more strict formula for testing the optimization of the balance among the competing interests.6
The proportionality test, which is successfully treated as a general principle of law, has been widely diffused into the legal systems of Sovereign States and international organizations, evening transporting into the States with strong feature of common law tradition7. Some transnational tribunals have accepted it as a general principle in their case assessments.8 Many provisions of the international human rights treaties have also articulately proscribed that the fundamental rights may be restricted according to the necessity in a democratic society. Accordingly, the interference of fundamental rights must be committed to the justification of “proportionality” test. The most impressive development of the proportionality test may be found in the judgments of the Court of Justice of the European Union (CJEU or Luxembourg Court) who always regard the proportionality test as “one of the established yardsticks for assessing the legality of obstructing measures”.9
The orthodox German model of proportionality test involves four prongs (sub-principles)10:
(1) Legitimacy aim: the judges in this step have to confirm whether the government is constitutionally authorized to take a restrictive measure towards the fundamental rights. More exactly, whenever the government adopts an unconstitutional measure, the national court must rule that the government has breached a higher norm. Moreover, the intervention to the fundamental rights is justified by the maintenance of the public interest, rather than irrational or inappropriate pursuits of the authority. 
(2) Suitability: this sub-principle is a judicial phase on the verification whether, with respect to the act in question, the measure employed and the ends pursued is rational and appropriate.11 The function of suitability is akin to American judicial doctrine of “rational basis” which appraises the government motives and the chose of means.12 Since this criterion of test is not as strict as the other steps, few laws would be striken down at this stage.13
(3) Necessity test: the core meaning of necessity, - Americans name it as the doctrine of “narrowing tailoring”14 -, is usually defined as a “least-restrictive means” test. The judges ensure that the measures, which have been adopted by the state authorities, should not curtail the right more than necessity for achieving the pursued goal. Even though the interference of the fundamental rights has been confirmed “necessary” or “suitable”, the judge would possibly rule it unconstitutional provided that the government has not considered the other reasonably alternatives or selected the least intrusive one. The Court would strike down the law or the selected administrative measure with substantially comparing it to others alternatives in the list, or required the administrators of looking for an alternative with less intrusion to the Convention rights.
(4) The proportionality in the narrow sense (stricto sensu): Alexy names this sub-principle “Law of Balancing” indicating that the optimization relative to the factual possibilities consists in avoiding avoidable cost.15 This sub-principle aims at searching out the possible optimization through the balance among competing interests or principles. Actually, this sub-principle is only sensible in the presumption that constitutional rights have a common principle-like character,16 rather the character of rules. The distinctive point in differentiating Rule from Principle is that the latter is the norm which “require something be realized to the greatest extend possible given the legal and factual possibilities”.17 According to the Alexy’s argument, the law of balancing can be broken down into three stages: (a) The first stage is a matter of establishing the degree of non-satisfaction of, or detriment to, the first interest (principle); (b) the second stage is the matter concerning the importance of establishing the competing interest; (c) the final stage is to answer whether or not the importance of satisfying the competing interest justifies the detriment to the first interest.18 The measure, though suitable and necessary, is disproportional in the condition it places an excessive burden on the individual.19 
Although the Proportionality test has already been treated as a crucial yardstick for the assessment of the advantages and disadvantages caused by the interference of the fundamental rights, the European Court of Human Rights (thereafter named “Strasbourg Court” or ECtHR) seems have not yet clarified its precise logic of operation in the Convention context. The Strasbourg Court takes a specific subsidiary role in the framework of European human rights protection, who quite often applies the margin of appreciation doctrine in the most of human rights cases.20 Therefore, unlike those domestic courts of the member states who are capable, to largest extent, of invoking the Proportionality test in consistency and certainty, the Proportionality seems to be settled down in a “mysterious house” condition where it has been colored by the arbitrariness and uncertainty.21 For instance, a particular interest (right) may weigh over than others in one circumstance, while the Strasbourg Court might not follow this judicial precedence in a latter similar case. This has caused the worries of commentators on the application of the Proportionality threatening the rule of law under the Strasbourg regime.22
Actually, the Court knows the problematic application of the Proportionality test in the human rights adjudications. However, considered its subsidiary role23, it may be impossible for the Strasbourg Court substantially employing Proportionality test the same as the German Court does. Regarding the situation of neither possessing the competence as the domestic judiciary does, nor handling the relatively complete authority as Luxembourg Court24 who defends the primacy of the EU laws and guarantee theirs binding power among EU member states in the European multilevel governance25, the Strasbourg Court theoretically cannot replace the opinion of member states courts with its own opinion. Thus, it must respect the national sovereignty and European pluralism in culture and morality, unless those domestic decisions are perceived to infringe the European minimum human rights standards of protection.26 Lord Reed have ever articulately revealed the difference between the proportionality test between the two supranational Courts in the domestic judgment of Bank Mellat27. The practice of Strasbourg test often approaches the matter in relatively broad-brush way:
“... ... The intensity of review varies considerably according to rights in issues and the context in which the question arises. Unsurprisingly, given that it is an international Court, its approach to proportionality does not correspond precisely to the various approaches adopted in the contracting parties.
 ... ... One important factor in relation to the Convention is that the Strasbourg Court recognizes that it may be less well placed than a national court to decide whether an appropriate balance has been striken in the particular national context. For that reason, in the Convention case law the principle of proportionality is indissolubly linked to the concept of margin of appreciation. That concept does not apply in the same at the national level, where the degree of restraint practised by Court in applying the principle of proportionality, and the extent to which they will respect the judgment of primacy decision maker, will depend upon the context, and will in part reflect the national tradition and institutional culture. For these reasons, the approach adopted to proportionality at the national level cannot simply mirror that of the Strasbourg Court.”28
Thus, the subsidiarity in the Convention context is a most crucial reason leading the Court to laying Proportionality test in a specific circumstance.29
I intend to rethink the Strasbourg method and function on the application of Proportionality test by Strasbourg case-law study. I am to settle down my study approach into the framework of functions and sub-functions for exploring in a further step whether or not Strasbourg’s style proportionality test may lead its case-law system to uncertainty and unpredictability, or this occurred consequence derives from nothing but the inherent modality of the Strasbourg deliberation. In order to a better understanding of the proportionality test in the Convention context, the research far more better start from the Strasbourg concept of subsidiarity and the margin of appreciation doctrine. Then, the clarification of the relationship between the doctrine of appreciation and proportionality test is necessary in terms of putting the application of proportionality test in a specific circumstance. In the third part, I mainly divided the functions of proportionality test into two parts: (1) strike a fair balance among the competing interests; (2) test the reasonableness of the measures employed and the goal pursued. Both of two main functions can possibly sub-divide into several sub-functions and, again, the Strasbourg logic should be examined and clarified by the process of Strasbourg case-law study. In the function-based framework, I try to explore, on one side, the Strasbourg logic on the proportionality test through the deliberate analyses of the Strasbourg jurisprudence, while, on the other hand, the Strasbourg reasoning should be reexamined in order to identify what has led the uncertainty of Strasbourg jurisprudence to occurrence. 
 
II. The Proportionality Linking to the Subsidiarity and Margin of Appreciation Doctrine in the Strasbourg Regime

A.The subsidiary role of Strasbourg Court
The Strasbourg Court is an ordinary international court specific on the regional human rights protection. The Court is constrained to impose its ruling decisions or Convention provision as primary commands into the national legal order.30 Instead, it is the domestic law that determine the concrete way of applicability of the Convention and its legal status in the national legal order.31
The Strasbourg Court, taking the role of an external subsidiary tribunal and considering the distribution of powers under the Convention Protocol No.15, scrutinizes the domestic decisions and ensures human rights domestic protection, at least, not to be lower than the minimum standard of Convention rights protection. In the judgment of Kudla32, the Court has clarified the principle of subsidiarity with the words that:
“......, the primary responsibility for implementing and enforcing the guaranteed rights is laid down on the national authorities. The machinery of complaint to the Court is thus subsidiary to national system safeguarding human rights, ......
 The purpose of Art.1 and Art.35..., which set out rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing rights violation against him before those allegation are submitted to the Court...”33
To largest extend, the Strasbourg Court needs to avoid the conflict to domestic legal decision in the field of sensitive issues because the Strasbourg Court could not replace the domestic decision with its own opinion34 on the ground that the domestic courts are better placed than international court in the decision of local social and economic problems or State interest at stake issues.35 In its famous decision of Handyside36, the Strasbourg Court articulately provides: 
“the state authorities are in principle in a better position than international judges to give an opinion of these requirements as well as ‘necessity’ or ‘restriction’ or ‘penalty’ intended to meet them”. 
However, the subsidiary role of Strasbourg does not mean that the Court would unconditionally defer to the domestic decision in the absence of substantially scrutinizing the domestic decisions. Instead, though the Strasbourg Court often reiterates its subsidiary roles in the judgments, restriction on Convention right will not be favored provided the essence of rights, the common characters of European democracy or disproportional interference on the rights are undermined.37 As the former President of Strasbourg Court Spielmann put it, “the conception of subsidiarity is not, as someone would have it, to State authorities in a broad and general way on traditional sovereign ground”. Rather, “the Convention mechanism is subsidiary to the national system safeguarding human rights”.38 In the judgment of A and Others,39 the applicant invoked the principle of subsidiarity to challenge the respondent states usually strategy to raise state defense policy. The Court clarified the meaning of this principle from the perspective of distribution of the power and obligations of the multilevel courts: 
“The Court is intended to be subsidiary to the national system safeguarding the human rights. It is, therefore, appropriate that the national court should initially have the opportunity to determine the question of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views and of the national courts, as being indirect and continuous contact with the forces of these countries... It is thus of importance that the argument put by the government before the national courts should be on the same lines as those put before this Court. In particular, it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts...”40
If the Strasbourg Court unconditionally accepts the domestic governments or courts assessments, it indicates that the Strasbourg Court fails to protect the fundamental rights from the domestic abuse. The deference to the domestic decisions are often discussed in terms of “judicial constraint” and “judicial deference”.41 The former notion is related to the institutional legitimacy and the separation of power in the multilevel governance, e.g. the necessary discretion should left to domestic authorities. In fact, the Strasbourg Court limits “judicial constrain” only to the scope of disputes concerning sensitive political issues, particularly in the fields of anti-terrorism and national security affairs.42 For instance, the Strasbourg Court provided in the judgment of Klass43:
“The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person’s rights for respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point.44
......
As concerned the fixing of condition under which the system of surveillance is to be operated, the Court point out the legislature enjoys a certain discretion. It is certainly not for the Court substitute for the assessment of the national authorities of any other assessment any other assessment of what might be the best policy in this field.”45
Therefore, the Strasbourg Court tends to rely on the judicial restraint in the cases that it could not touch the sensitive domestic policies determined by states parliaments or governments. However, even in the cases of these categories, the Strasbourg Court will rhetorically declare that the margin of state discretion is not unlimited.46
According to River’s argument “deference on grounds of institutional expertise seems particularly appropriate in the relationship between judiciary and executive bodies. To the extent that there is expertise, the judges are correct to rely on the executive as part of ‘getting it right’”47, the notion of “judicial deference” seems relate to the institutional competence. The Court will avoid a blind trust to the government assessment or fall into the pitfall of the government’s expertise.48 Therefore, judicial deference, in the European Convention context, “is not simply to accept another person’s [domestic authorities] assessment, it is to accept that the other person’s assessment is sufficiently reliable”.49 The Strasbourg Court uses the judicial review to scrutinize the domestic legislation and administrative decisions. Even if in the decisions that the Strasbourg Court defers to the domestic measures or decisions, it only means that the Court shares the view with relevant domestic authorities, rather than substantially provides the state body an unlimited margin of discretion. In the judgment of Austin and Others,50 the Strasbourg Court interprets subsidiarity of the Strasbourg Court from the perspectives of its function and status in the Convention legal order (Art.19 ECHR):
“Subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19. The Court must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. As a general rule, where the domestic proceeding has taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them. Though the Court is not bound by the findings of domestic Court and remains free to make its own appreciation in the light of all the material before it, in normal circumstance it requires the cogent elements to lead to it to depart from the finding of the fact reached by the domestic courts ...”51
Even in the aforementioned judgment of Klass concerning very sensitive surveillance policy in Germany, the Court intentionally pretended that the deference to domestic authority in aspects of the interference of fundamental rights has already based on exercising its substantial scrutiny in accordance to the European Convention requirement:
“The Court, sharing the view of the Government and the Commission, finds that the aim of the G10 is indeed to safeguard national security and/or to prevent the disorder or crime in pursuance of Article 8, para.2. In this circumstance, the Court does not deem it necessary to decide whether the further propose cited by the government are also relevant”.52
Therefore, the principle of subsidiarity in the Convention context is not simply regarded as a reason to restrict the power of the Court.53 Even the Court has invoked this principle whenever the domestic authority failed to adopt the suitable measures to protect or infringe the fundamental rights. Actually, the principle of subsidiarity is embedded on the distribution of power between the domestic and international institutions, where the domestic court has the initially power to interpret and apply the European Convention, while the latter Court handle the substantial power to the scrutiny of the domestic legislations and decisions in accordance to the Convention norms. Even though the Strasbourg Court defers to the domestic decisions, it does not indicate that the Court will blindly agree with or provide unlimited margin of discretion to the States, whereas the Court actually agrees with the domestic assessment under its independent prudent scrutiny. Otherwise, the member states will breach the European Convention if the Court has found the deficient protection provided by the national legal order, in order to guarantee the ECHR as the “constitutional instrument of European public order for the protection of human rights”.54
However, the Strasbourg logic of judgment cannot be easily revealed by the principle of subsidiarity. The margin of appreciation doctrine was another crucial factor impacting on the effectiveness of Strasbourg’s application of proportionality test.
 
B.The margin of appreciation doctrine
Petzold argues that the margin of appreciation doctrine stems from the notion of Strasbourg subsidiarity. It is a very technique to distribute the decision-making competence among the judicial bodies in the Convention scheme and to delineate the boundary between the “primary” national discretion and “subsidiary” international supervision in the concrete cases.55 His argument was confirmed by the Convention Protocol No.15 in two decades later, providing that:
“The highly contracting parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and Protocol thereof, and in doing so they enjoy the margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.
Although Petzold has correctly argued that the margin of appreciation doctrine has something  relations with the subsidiarity principle56, he failed to think out reasons why the scope of margin of appreciation allowed to the Contracting Parties was diverse case by case, nor he was able to deduce a definition or formula of the margin of appreciation from Strasbourg jurisprudence.  
Scholars present the various definitions of the doctrine from different perspectives. Yourow describes the doctrine as “freedom to act, manoeuvring breathe or ‘elbow’ room; or the latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies before it is prepared to declare a violation of European Convention”.57 Takahashi depicts this doctrine simply as “latitude the government enjoys in applying the provision of a treaty”.58 Benvenisti refers it as the “certain latitude in resolving the inherent conflicts between the individual rights and national interest or among the different moral convictions”.59 Greer regards the doctrine to be “a room for manoeuvre that the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligation and bandwidth”.60 Merills regards the doctrine equally as the “area of discretion”.61 These various definitions reflect the doctrine or the language of “margin of appreciation” have already been inflatedly used by the Strasbourg Court62, and no simple words can describe how it works, but the Strasbourg case-law shows its “casuistic, uneven, and largely unpredictable nature”63. The motivation of application of this doctrine are, to large extent, maneuvered in line with the European judges will. 
The overuse of this doctrine has been a matter committed to condemn by many Strasbourg judges. As early as in 1977, Judge Feingold criticized the automatic use of the doctrine.64 In the recent years, Judge Rozakis, in his concurring opinion of ruling of Egeland and Hanseid65, said that the margin of appreciation is often used by the Court automatically and unnecessary. Lord Lester has ever described it as being as “slippery and elusive as an eel” in the sense that the nature of this doctrine was hard to capture.66 However, the doubt on the Strasbourg automatic application of the doctrine cannot be capable of negating its fundamental status - an effective tool on negotiation with the state authority and the protection of fundamental rights67- in Strasbourg regime.68 In the judgment of A and Others69, the Court provides that “the doctrine of margin of appreciation has always been meant as a tool to define the relations between the domestic authority and the Court”.  
In fact, the notion of “margin of appreciation” has evolved from a simple deference to state derogation from the Convention obligation into a more complicate concept applicable to many circumstances.70 This discourse could not be found either in the text of the Convention or in the preparatory work before the Protocol No.15 came into effect in 2014. However, Strasbourg jurisprudence has already created this doctrine as early as 1950s. In the ruling of Greece vs. UK, the European Commission of Human Rights relied on the various threats to the public order in Cyprus then, determining that “... the Government retains, within certain limits, its discretion on appreciation threat to the life of the nation”. Though the words of “margin of appreciation” did not exactly appear in the judgment of English version, one could find “une certaine marge d’appréciation” (a certain margin of appreciation) in the French one. The decision implied that the State had the autonomous power to derogate from the Convention rights in the circumstance of emergency, which it did no subject the State to the Strasbourg substantial scrutiny. Even in an earlier judgment of Lawless71, this doctrine was referred by five commissioners who principally proposed that the Contracting States enjoyed broad width of appreciation on the derogation from the Convention obligation in the circumstance of public emergency. The commissioners recognized in the judgment that “certain discretion on appreciation” was an exact synonymy to “a certain margin of appreciation”. In the judgment of Iversen72, the European Commission of Human Rights invoked this doctrine first time in a circumstance of state emergency:
“The Commission has frequently held that, although a certain margin of appreciation should be given to a government in determining the existence of a public emergency within the meaning of the Article 15 in its own country, the Commission has the competence and duty to examine and pronounce upon the consistency with the Convention of a government’s determination of this question ... in the analogous circumstance of the present case, the Commission cannot question the judgment of the Norwegian Government and Parliament as to the existence of an emergency as there is evidence before the Commission showing reasonable grounds for such judgment”.
At present, the Strasbourg Court has extended this doctrine to other areas for leaving much autonomous room to the state authorities in many horizontal disputes. Actually, norms of the European Convention are drafted in a general and ambiguous manner to accommodate multiple eventualities in the future.73 International judges are obliged to interpret these open-ended norms in accordance with the principle of distribution of power between the International and national levels.74 The European Convention norms inherently leave the “open texture”75. According to Hart’s view, if a legal norm lacks “objective” or “precise” requirement, the judges are granted the discretionary power76 to determine the content of norm on the basis of extralegal considerations, including the moral and political values.77 In the judgment of Belgian Linguistic Case78, the European Commission of Human Rights argued that regarding Art.14 ECHR (the rights against discrimination) did not grant the precise rights to the individuals, it left contracting states “a certain margin of appreciation with regard to the fulfillment of their obligation”79. The Court invoked the proportionality test to ascertain whether the state authorities step out their margin in the present case. Finally, the Court ruled that
“In that part of the judgment devoted to the general interpretation adopted by the Court, it is stated as a principle that Article 14 of the Convention is violated only when it is clearly established that no relationship of proportionality exists between the means employed and the aim sought to be realized. It would not therefore be enough - supposing that such were the position - to be confronted with a marginal case, to conclude that there is a violation of human rights in the case of the Applicants. The differentiation in treatment is not discriminatory and it has not in any way been established that the relationship of proportionality has been disregarded”.80
The Strasbourg Court did not systematically invoke this theory in structural or substantial sense until 1970s.81 In a concise ruling of Vagrancy82, the Strasbourg Court held that Belgium “did not transgress in the present cases the limits of power of appreciation”, after the Court noted the restrictive measure adopted by the contracting states had a legitimate aim and did not apply to a long term detention.83 In the decision of Handyside, the Court interpreted the margin of appreciation doctrine from the perspective of distribution of the powers (in structural sense), while it reiterated the subsidiary role of Strasbourg fundamental rights protection: 
“Consequently, Article 10 para.2 leaves to the Contracting States a margin of appreciation, This margin is given the both to the domestic legislation (provided by law) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force 
Nevertheless, Article 10 para.2 does not give the Contracting parties unlimited power of appreciation. The Court, which, with the commission, is responsible for ensuring the observance of those States’ engagement is empowered to the give the final ruling on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected by Art.10. The domestic margin of appreciation thus goes hand in hand with a European supervision. Such a supervision concerns both the aim of the measure challenged and its necessity. Its covers not only the basic legislation but also the decision applying to it, even one given by an independent court......
The Court’s supervisory functions oblige it to pay the utmost attention to the principle characterizing a “democratic society” Freedom of expression constitutes one of the essential foundations of such a society, one of the basic condition for its progress and for the development of every man...
... ...
It follows from this that it is in no way the Court’s task to take the place of the competent national courts but rather to review under Art.10 the decisions they delivered in the exercise of their power of appreciation”.84
Takahashi regards the decision of Handyside as a cause célèbre and remarks “it was fairly justifiable to consider the margin of appreciation as a doctrine”85, since it reveals the reasons and a general formula of the Court’s application of the margin of appreciation doctrine. The margin enjoyed by the States, particularly arranging from Art.8 - 11, originates from the wording of the Convention. Court suggested that it would scrutinize the appealed decisions in any time through the proportionality test or other appropriate approach, even in the case that the Contracting States are given a wide margin of appreciation, e.g in Brannigan.86
“... in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstance leading to, and the duration of, the emergency situation”.87
The scope of Strasbourg supervision therefore has extended to all round. “Democratic society” is the most concerned in its supervision, indicating that the Court would solidly defend the core of civil and political rights in strong relation to characters of democracy. Moreover, the essential core of Conventional right is  absolutely minimum standard requiring the States to observe. 
As a deemed “vital part” - at least in discourse - to deal with the sticky problems and be used in the multiple case circumstances88, this doctrine has inflatedly related to the majority of the European Convention89. Besides Art.15 ECHR (derogation in circumstance of emergency), it is very common to see other judgments embedded on the doctrine of “margin of appreciation” for conciliating between the individual rights and collective goods, ranging from Art.8 to Art.11 ECHR, under the accommodation clauses. Apart from those, Art.1 ECHR Protocol No.1 (property rights), Art.14 (anti-discrimination) as well as the other non-absolute Convention rights. In contrast, this doctrine has never been invoked in respect of Art.2 (the right to life), or Art. 390 (the rights to against the torture and inhumane treatment), or Art.4 (the right to not be held in slavery and servitude).91 It also has very limited role in the Art.5 and Art.6.92 
 However, this classic general formula of the margin of appreciation was constructed in an extremely loose approach, given the Court provided that “its supervision would generally prove illusory if it did no more than examine those decision in isolation; it must view them in the light of the case as a whole”.93 Actually, various factors can determine the final scope of margin provided to the Contracting States.94 Thus, the inherent problem is that the Strasbourg Court can still hardly develop a uniform set of mathematical formula to rank these factors in order from strong to weak, leading the doctrine applied in absence of inconsistency and lost its predictability.95 The former Strasbourg judge Murray therefore has commented that:
“The Strasbourg Court has held that margin will vary according to the nature of the Convention rights in issue, its importance for individual, and nature of the Convention Rights in issue, its importance for individual, and the nature of activities restricted, as well as the nature of the aim pursued by the restriction on a given right. In practice, this makes margin of appreciation a rather indeterminate standard, which is the source of diverging views: for some, it is a necessarily imperfect attempt negotiate the tension between national sovereignty and international supervision; for others, it is no more than an escape clause, allowing the Court to avoid difficult sensitive, issues which does not wish to confront in a particular case. As such, it is described as a doctrine so flexible that it is as ‘slippery and elusive as an eel’, used by the Court in place of ‘coherent legal analysis’ of the Convention rights”.96
The factor prima facia concerned by the Strasbourg Court in one judgment may be ignored in another case. The Court inevitably determines the case between the two main choices whether deference to national decision or limit the scope of discretion. The inflated use of these words are usually decorated by the various adjectives, such as “narrow”, “wide”, “certain”, “sufficient”, “acceptable” and “proportional”. The Strasbourg judges seem not aim to distinguish the meaning of these words97 but usually applied this doctrine in different fields98. “National security”, “public morals”, “public orders”, “what is necessary for the economic well-being of the country” and “the prevention for the crime” become the main reasons to limit the Convention rights. The scope of the state discretion may be narrowed provided it has an European consensus reached among the Convention Contracting States.99 The Court will possibly interpret the relevant rights in a dynamic approach on the ground that the European Convention is a “living instrument”100. Otherwise, the less consensus reached among the Contracting States, the larger width of discretion enjoyed by the Contracting States.101 This measure to define the margin width seems consonant with the Mahoney’s argument that “the margin of appreciation and evolutive interpretation operate on the flip sides of the same coin”102. The Court, putting its one eye on the development of international and national human rights instruments, has adopted this judicial strategy challenging the broad residual prejudices in relation to the issues of the children born out of wedlock,103 homosexual discrimination104 and transsexual discrimination105.
Yet, the evolutive approach is problematically applied by the Strasbourg Court.106 The European consensus is identified by the Strasbourg home-produced “objectivized” manner, which is different from purely quantitative majority among the member states.107 The problem comes from both the meaning of the “consensus” and the method adopted to explore its existence, even the Strasbourg Court fails to answer whose consensus there is, EU members, the members of the Council of European or UN member states.108 The objective identification of the existence of consensus are so varied as to leave the Court amount of arbitrary discretionary powers to determine to which relevant document it can refer as well as to what extend of consensus the Contracting States have reached. 
The Goodwin decision is a landmark concerning the protection transsexual’s right to marry in the Strasbourg regime. The Court was not capable of favoring applicant position on reliance of the Strasbourg previous case-law, nor based on “consensus” theory grounding that few states had approved the change registration of original gender. Given this situation, the Court had to resort to a teleological interpretative approach, attaching less importance to the actual European consensus. Consequently, the Strasbourg Court invented a new criterion “continuing international trend” as a way to indicate that the existence of dynamic convergence or consensus taking placing among the democratic states: 
“The Court accordingly attach less importance to the lack of evidence of commonly European approach to the resolution of the legal and practical problems posed, than to a clear and uncontested evidence of a continuing international trend in favor not only of increased social acceptance of transsexuals but of legal recognition of the new identity of post-operative transsexuals”109
Some Strasbourg judges used to controversially take the foreign decisions into account provided no European consensus has already been formed among the Contracting States. In the decision of Hirst110, the majority judges regarded the Canadian and South African decision as the international trend among the global democratic states.111 The Strasbourg Court also usually extend the EU Charter on Fundamental Rights (thereafter EU Charter) to those non-EU contracting states in prospective effect, entitling them as the standard commonly observed by the modern democratic states.112 These loose evolutive approaches of Convention interpretation, though narrow the scope of margin of appreciation, has brought the instability to Strasbourg case-law system. Strasbourg judge Nicolaou warned to his colleagues in his dissenting judgment of Scoppola II113
“... as is often emphasized, the Convention is a living instrument requiring a dynamic and evolutive approach that render rights and practical and effective, not theoretical and illusory. But no judicial interpretation, however creative, can be entirely free of constraint.”114 
The margin of appreciation indeed has been inflatedly used in various sense by the Strasbourg Court.115 The fact that the Strasbourg Court defines scope of state discretion with different but relative loose approaches has left us an impression of “fraught with difficulty”116. The Court knows the inherent deficiency, but solution to the problem cannot simply rely on the development or invention of a mathematical formula to enhance the predictability and certainty, but should resort to build an appropriate mechanism to reconcile the institutional conflicts between State-Strasbourg relationships as well as articulate clarify “principle of subsidiarity” embedded on the distribution of judicial power in the vertical level. In the above sense, the Strasbourg Court can both respect to the states’ sovereignty and make them accountable.
Moreover, Letsas distinguishes substantive and structural concepts of the margin of appreciation rooted in the Strasbourg judgments.117 The structural concept of margin of appreciation is to address the limit of the intensity of the review of Strasbourg Court under its subsidiary role. It amounts to the claim the Strasbourg deference to the domestic judgments, regarding domestic courts are better placed than the international tribunals in assessment of local problems. The ideas of subsidiarity and state consensus usually go hand in hand with structural concept of margin of appreciation. On the contrary, the substantive notion functions as a channel to address the conciliation of the individual rights and collective goals mainly through the proportionality test ( or even interpretation of Convention rights). it is constituted by two main parts: (1) the measures taken by the state authorities are justified, prescribed by law, in order to advance collective goals; (2) such measures may interfere with fundamental rights, but such interference may not amount an infringement of the rights. Letsas classic argument has been cited by some textbooks of the European Convention on Human Rights118:
“I propose to analyze the margin of appreciation doctrine, as it figures in the case-law, in a different way by drawing a distinction between two different ways in which it has been used by the Court. The first one, which i shall call the substantive concept is to address the relationship between individual freedoms and collective goals. The second one, which I shall call the structural concept, is to address the limits or intensity of review of the European Court of Human Rights in view of his status as an international convention, not a national bill of rights. The ideas of subsidiarity and state consensus are usually invoked to support the structural use of the margin of appreciation”.119
Though Letsas’s analysis is so helpful that enable us distinguish the usage of this doctrine in the Strasbourg Court, his finding contributes very limited illuminations to result the application of doctrine in consistent and predictable sense. The Strasbourg Court thereby usually refers to its judgment of Rasmussen120 almost whenever the margin of appreciation is required to be narrowed:
“The scope of margin of appreciation will vary according to the circumstance, the subject matter and its background; in this respect, one of relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States”.121
 
C. The inherent link between substantive concept of the margin of appreciation and the principle of proportionality
The Strasbourg regime consistently holds that the principle of proportionality inherently scrutinizes the domestic balance between the individual rights and the collective (public) interests.122 In the famous ruling of Soering123, the Court stated that: 
“Furthermore, inherent in whole of the ECHR is a search for the fair balance between the demands of general interest of the community and the requirement protection of the individual’s fundamental rights”.124
Actually, the proportionality test is combined with the margin of appreciation doctrine as early as in the aforementioned Vagrancy case, where the Court found that Belgian government limited the right to correspondence is proportional and not overstepping the power of appreciation which the Convention leaves to the states. In the landmark decision of Handyside, the Court structurally deferred to the UK’s consequence of proportionality test.  
Apart from the Strasbourg previous case-law, some Strasbourg judges claim that proportionality test has a very close link to the margin of appreciation doctrine. Mastcher describes the proportionality test as the most “corrective and restrictive” margin of appreciation.125 Spielmann identifies the proportionality principle as “probably the most important - and even decisive - factor” impacting on the consequence of margin of appreciation.126 Professor Takahashi even describes the proportionality as “the other side of margin of appreciation”127. However, Takahashi did not continue to clarify why the two terms are on the same coin under the Convention. Actually, the substantive notion of the margin of appreciation doctrine and the principle of proportionality have the common function in Strasbourg regime - balance among the competing interests.128 The national authorities would also be given a latitude of discretion to test the reasonableness and appropriateness of means to pursue a social goal in a particular circumstance.129 The “structured balance” between a right and a public good would be corresponded in this test approach.130 In this context, the title “margin of appreciation” will be safely replaced by the notion of “a fair balance”.131
In the circumstance of Art.8-11 ECHR, although the wordings of the European Convention allow the inference of the Convention right, the Court tends to scrutinize the restrictive measures adopted by the Contracting States through the proportionality test, or in Letsas words “substantive concept of the margin of appreciation” to rationalize the public good and personal rights, given the requirements that the interference of the rights must ground on “relevant and sufficient”, “convincingly established” and “pressing social needs”.132 
The more harsher Convention rights have been interfered, the more intensive review imposes to the contracting parties by virtue of proportionality test. In the judgment of Czarnowski133, the Court initially recognizes that the contracting state letigimately enjoys the margin of appreciation with respect to prisoner administration, but later the scope of margin was narrowed by the proportionality test: 
“The Court observe that Art.8 does not guarantee a detained person an unconditional right to leave in order to attend a funeral of a relative ... Its scrutiny is limited to the consideration of impugned measures in the context of applicant’s Conventional rights, taking into account of margin of appreciation left to the contracting states.
... ...
Look at the circumstance of the event in question in the light of the case as a whole, and taking into account of margin of appreciation as a whole lest to the respondent state ...
... ...
The Court concludes that, in the particular circumstance of the present case, and notwithstanding the margin of appreciation left to the respondent state, the refusal of leave to attend the funeral of the applicant’s father, was not “necessary in a democratic society” as it did not correspond to a pressing social needs and was not proportionate to the legitimate aim.”134
In the decision concerning the balance among competing rights and freedoms, the Strasbourg Court overthrew the balance stricken by the state authority, even who enjoyed a wide scope of margin of appreciation, e.g.
“The Court is mindful of the careful and thorough review carried out by the national courts of the various factors that are relevant under the Convention. However, there was not in the Court’s view a reasonable relationship of proportionality between the interests relied on by the domestic courts in safeguarding F?drelandsvennen’ freedom of expression and those of the applicant in having his honour, reputation and privacy protected. The Court is therefore not satisfied that the national courts struck a fair balance between the newspaper’s freedom of expression under Article 10 and the applicant’s right to respect for his private life under Article 8, notwithstanding the wide margin of appreciation available to the national authorities”.135
The proportionality test and margin of appreciation doctrine are intertwined and cooperative, which enables the Strasbourg Court to scrutinize whether or not the respondent state has observed the Convention requirement. The margin of appreciation doctrine concerns the legitimate aim of interference in meeting a social needs, while the proportionality mainly concerns the justification of the states measures or decisions.136
 
III. The Formula of Proportionality Test in the Strasbourg Court Jurisprudence
Takahashi commentates that the Strasbourg Court has not elaborated either the meaning or measures of the principle of proportionality as the EU and German courts do.137 Costa, the former President of Strasbourg Court, has generally clarified the Strasbourg notion of proportionality principle serving the certainty of “the necessities in a democratic society”138. The Strasbourg Court must primarily affirm whether the act of interference is prescribed by law and is compatible with the pursued legitimate aim. If the two questions are affirmed, the Strasbourg Court subsequently assesses whether the act of interference is necessary in the European democratic society according to the pre-existed democratic values and the notion of rule of law. In the process of doing such an assessment, the Court embedded its judicial review on the “necessity test”: any disproportionate and excessive measures deem to be in breach of the European Convention. Costa’s statement exactly indicate that the proportionality test mainly exercises the function of the third sub-principle function in the German model of proportionality test.
Obviously, Costa’s argument only highlights the proportionality test applied in the field of searching the least intrusive alternation on the interference of the individual rights. Indeed, in the judgment of Belgian Linguistic case139, the Strasbourg Court regards the proportionality principle as an effective measure to test “reasonable relationship between the means employed and the aim sought to realize”. However, Costa ignores the other aspects of proportionality test reflected in the Strasbourg decision of Soering where the function of proportionality test serves to strike a fair balance between the individual rights and collective goods. Apart from that, the decision of Thilmmenos140 deserves us notice in that the Court applied the proportionality test as a measure to test the justification of the legitimate aim of an administrative sanction. Considering the limited influence of the Thilmmenos decision towards the latter case, I tend to narrow the Strasbourg logic  proportionality test to two normative functions: (1) the balance among the competing interests; (2) test to the reasonableness and appropriateness between the means employed and goals pursued.  
Before engaging into the analyses of functions of proportionality test under the Convention regime, a comprehensive understanding on rights philosophy can help us better know the very essence of reasons of the Strasbourg’s proportionality logic. The proportionality test is not central to the reason-blocking theory embedded on the presumption of egalitarianism (rights trumps theory) that individual rights could not be undermined by the external preference denying some human beings with equal status of autonomous persons.141 According to this theory, the individual rights can never be “balance” with public goods, general utility or other general interests through the proportionality test on the ground that a person’s right not to be deprived of liberty on the basis of his conception of good life in inferior is absolute.
In contrast, interest-based theory of rights could be well compatible with the notion of proportional balance. It means that individuals’ interests on life, security, and freedom generate rights and the corresponding duties attached to the state obligations. Balancing between the individual rights and collective goods is one of crucial tasks of the judges because the restriction on the Convention rights may be necessary for the promotion of certain collective goods that produce more interests than protection of individual right does. However, the precondition has been set as the justification of the interference of fundamental rights, that is, the restriction to rights should not undermine the “essence” or “core” of Convention rights. This Strasbourg precondition can be seen as a reason that certain liberties have for the promotion of certain vital interests. The Strasbourg Court is obliged to guarantee the domestic protection of fundamental rights above the minimum European standard. 
Greer proposes a new argument aiming to clarify the status of Convention rights in the balance with the collective goods. In his view, the “priority to rights principle” could be a mediator between the “rights” and “collective goods”, clarifying that the Convention rights “take procedural and evidential, but not conclusive, priority over the democratic pursue of the public interest, according to the terms of Convention provision”142. This principle will impose the burden of proof to respondent state to rationalize their meddling with individual person’s rights.143
 
A.Fair balance between the competing interests

1. Essence of rights 
Competing interests do not narrowly confine to the personal rights and collective goods, but the Court also involved into the balance between the competing individual rights. These decisions usually found in the judgments in relation to freedom of expression embodied in Art.10 ECHR. The Court usually balances the competing individual rights through interpretation by which the “core” of one right is stressed to highlight its essence. The decision of Lingens144 is one of highly referred cases concerning whether the inappropriate political speech fell into the scope of the freedom of expression enshrined by European Convention. In order to strike a fair balance between the freedom of opinion on the public figures and the politician’s reputation, Strasbourg Court, highlighting the essential part of free press, states “ ‘information’ and ‘ideas’ are not only favorable received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock and disturb”. These characters are the basic demands in a “democratic society”. Meanwhile, the Court, on the basis of the interest-base rights theory, defines the essential function of the free press as “one of best means of discovering and forming an opinion of the ideas and attitudes of the political leaders”, and regards the political debate as the “very core” notion in the domestic society, granting them the privileged status under the Convention. The Court turns to scrutinize whether or not the core of the freedom of expression provided by Art.11 ECHR has been undermined by the Austrian domestic decision. Given the fact, though the author has used some inappropriate and impolite words in his publication, that the article inherently concerns the political controversial issues, the interest of the free press is determined overweight than the interest of politician’s reputation on the ground of democratic requirement. 
Some decisions concerning striking the fair balance between the individual right and public emotional opinions follow the same route as Strasbourg did in the decision of Lingens. The reasoning of the Orban and Others145 is one of the typical examples corroborating the above argument. The author of book records the story of a retired general who was sent to Algeria by French government for carrying out the military mission from 1955 to 1957. This General was sanctioned by a criminal guilty for the reason that the General words seemed to convince the readers legitimacy and inevitability of the torture and summaries of execution carried out during the Civil War. Moreover, he had never showed his regretful feeling to his cruel activity done there. The publisher was also imposed penal fine for the reason that it praised the author as “une légende vivante” (a living legend) and gloried his mission as “mission plus difficile de toutes” (the most difficult mission). The Strasbourg Court, however, reiterated that the core definition and essential function of the free press in the European democratic society were free from the interference. The author’s persuasion of the legitimacy, justifiability of torture and summaries of execution were not regarded as decisive factors for the assessment of the fact under Art.10 ECHR. In contrast, the publication of author’s account formed a social debate on a public concerned matter related to the collective memories. The General, on his account, just defended one spectrum of the debate. Although it sounded cruel and anti-modern civilization, what he had described not only existed but also got permitted by the French authorities. The insight cover paragraph reflected a simple fact that the publishers stood with author’s opinion. In this sense, it is not justifiable for the French Court sanctioned the publisher for it not keeping a far distance from the authors’ standing. 
The Strasbourg judgment relying on the doctrine “essence of rights” could be easily found in the decision concerning the right to fair trial provided by Art.6 ECHR. After the landmark Philis146 decision, the Court quite often repeated that limitation on the right to court must not restrict or reduce the access to the tribunals reserved to the individuals in such a degraded measure that the very essence would be possibly impaired. Legal aid system has a particular role with respect to safeguard fair trial under Art.6 ECHR and relevant case-law which require that the domestic judicial system established by the domestic legislation must offer individuals the substantial guarantee to protect them from the arbitrariness. Similarly, the Strasbourg Court usually cites the previous decision Aret147 in the later judgments for warning Strasbourg Contracting Parties that it may impair the very essence of right to tribunal provided the state authority fails to satisfy the requirements of applicants during the period of civil proceedings.
In the judgment concerning the political rights, the “essence of right to vote” functioned as the fundamental waterproof against the violation through the penetration of national policy or legislation. In the judgment of Mathieu-Mohin and Clerfayt148, the Court articulately determined that the States were given a wide margin of appreciation on designing the electoral institution. The threshold of the candidate qualification on accessing to the election would be permissible only if it “does not curtail the rights in question to such an extent as to impair their very essence and .deprive them of their effectiveness”. In the Aziz judgment149, the Strasbourg Court supports the legitimacy of Cyprus decision depriving of the entitlement of being a legalized elector a Northern Cyprus citizen to a National Parliament suffrage. Given that the Turkish occupation of North Cyprus had lasted more than 30 years at that moment, there was a lack of legislative resolution to this ensuing problem. In the dissenting opinion of Hirst150 concerning the disenfranchisement of right to vote of a convicted prisoner, the minority judges insisted that the Court should defer to the domestic decision regarding the essence of right to vote had not been infringed.
 
2. Balance the competing interests beyond the core of rights 
The Strasbourg Court usually encounters many sticky problems with respect to balance the competing interests beyond the core of Convention rights. As a subsidiary international tribunal, the Strasbourg Court has few competence to challenge the domestic decisions unless they are found to overstep the “necessity” of restriction to fundamental rights, or the consequence of the balance among the commensurable interests is obviously out of proportional.
In the deliberation of Evens151, the Court had to balance the competing interests between the divorced couples wishes to be a mother and not to be a father. The female applicant argues that her claim should be prior to the male counterpart in view that she has suffered much more pains in a circle of IVF treatment, after which she has lost the chance of a new pregnancy since her oven cut off. The male claims that he has legal right to be not a father, according to the British statute that both of party must give their consent on the IVF continuation, otherwise the embryos would be destroyed. The female applicant submitted the similar Israel and American judgment to the Strasbourg Court in hopes that the Court could seen them as relevant evidence reflecting an international continuing trends. However, the Strasbourg judges constrained themselves to conservative standing, regarding that there is no European consensus among the contracting states. The Court actually took a substantial balance based on the mathematical calculation between two opposite interests - to be a mother and not to be a father. However, the Strasbourg Court was not able to work out which party would suffered more pains through this formalistic approach. On the other side, since the British legislation was drafted on the basis the principle of equal genders, granting a privilege to mother rights would be a discrimination to the male part. Continuation of IVF treatment in absence of father’s consent would diminish the father’s equality status, which would breach the original purpose of British legislation and the requirement of rule of law. The court, after taking account of this difficulties, claimed that pain suffered respectively by the divorce parties could hardly be commensurable. .
Greer’s “priority to rights principle” theory are quite often applied in the phase of balance between Convention rights and public interests in the public concern affairs. In this sense, the Convention right not only serves the individual interests, but also brings the public interests to a certain group of people. The judgment of the Sunday Times152 is one typical example. The newspaper Sunday Times published an article condemning the law relating to the legal liability of drug companies and calling upon Distiller Drug Company, who were alleged negligence and subjected to the continuing negotiation with the victims’ lawyer, to ‘think again’ about the level of their current offer of compensation to the thalidomide victims. Although Distiller had asked the General-Attorney to bring it proceeding for contempt of court against the newspaper, he refused to do that. The editor of the Sunday Times sent the General-Attorney a draft of another article proposed to publish. This piece entailed evidence and arguments to suggest that Distiller Drug Company had not exercise due care in testing the safety of thalidomide before marketing it. The House of Lord finally granted a new injunction after Attorney-General and Appeal of Court deliberations.
At the present case, the Strasbourg Court gave the affirmative answers to that interference “prescribed by law” and “within the legitimate aims”. However, the Court denied that the injunction proved to be proportionate to the pursued legitimate aim after balancing the competing interests respectively brought from the freedom of press and the injunction. The essence of free press was not capable of providing any safeguard to the Sunday Times because the House of Lord had already balanced the competing interests in the framework of the common law, determining that British legal system did not allow any institution to prejudge the pending case. Yet, the Strasbourg Court did not defer to domestic decision after the balance of two competing interests from other perspectives. On one hand, the Strasbourg Court extended the scope of the right to free press from imparting information to the right to receive (the right to know) in the context of Convention. On the other hand, given the fact that thalidomide disaster was a matter of undisputed public concern, imparting information and ideas concerning this matter that came before the Court undoubtedly served public interest in this area. Thus, the subsequent tasks of the court turned to the balance between the two “abstract” public interests relying on the facts and circumstances prevailing in this case. Regarding the numerous of victims, who had not yet awareness of the legal difficulties, had a vital common interest in knowing all the underlying facts and the various possible solutions, the Court weighed public interest given by the free press over the competing one from the “authority of judiciary” on the ground that the injunction would deprive the victim of this information.
The judgment may be criticized in that the Court had not taken the proportionality test seriously. It has not yet strictly deduced a formula of proportionality test applicable erga omnes, but superficially clarifies that one of particular elements or interests outweighed than the counterpart in the specific circumstance. In the judgment of Sunday Times, the Court only highlighted the negative consequence of the harm to victim interests in the condition that free press was deprived by the order of the court injunction, whilst the Court ignored a substantive balance to the equal extent to consider what would be the negative consequence of the undermining of the “order of judiciary”. This is unacceptable for the commentators who argue the strict doctrine of “rule of law” in which predictability and rationality are two basic requirements inviolable. Inspired by Greer’s argument of “priority to rights principle” or Letsas’s claim on “rights as weak priority”, it is convinced that the Strasbourg Court usually departs from the preference to the democratic Convention rights rather than the state public authority in the issues concerning the political and social public debates on the ground that the free press was no longer regarded as one of the individuals rights, but also served the public interests in the democratic society. 
Greer’s theory seems not valid in the cases where freedom of expression serves nothing to the public interests, namely that, the articles published in mass media have nothing connection with public debates on political and social issues. The aforementioned case of Handyside is a good example. The translators of “Little Red Schoolbook” was sanctioned for the reason that the obscene words appeared in the book had breached a criminal statute. However, the publication was legal in the other Convention contracting states. The Court determined the present case neither relying on the “rights priority” theory nor “European consensus” standard, while it deferred to national criminal punishment under the reason that “morality is diverse from time to time and place to place”
The Strasbourg Court usually provides the respondent state a large latitude of discretion in striking a “fair balance” between freedom of expression and state security against the terrorism or other threatening forces. In such cases, the Court lacks of compatibility to take proper examination of proportionality in the matters of safeguarding state security. Moreover, the Strasbourg judges seem trust the domestic authorities who are placed in a better position striking the fair balance between individual rights and state security or test the reasonableness and appropriateness of the state restrictive measures.153 
The decision of Handyside indicates the Court actually relies on the utilitarianism that the opinion of the majority on moral life (without concerning the political issue) outweighs the individual interest stemmed from the Convention right. the Court generally prevents the substantially involving into the sensitive state security, unless the manifest deficiencies are found. Even the proportionality test is sometimes referred as a way to limit the state conduct in some sensitive cases, the Strasbourg Court always applies this principle in a rhetorical way.154
 
3. Fair balance between the individual rights and (sensitive) collective goods
Letsas argues that the Strasbourg Court will not apply the substantial proportionality test in the cases concerning the sensitive issues, unless the core of the Convention rights are undermined. His presumption is partially right regarding the fact that the subsidiary international court could not be better than a domestic one with respect to balance the competing interests, particularly to balance those sensitive interests such as national security, social morality as well as common religious belief. However, Greer and Takahashi stress, even in some sensitive cases, that the Strasbourg Court still imposes an onerous burden on the respondent states to rationalize their “meddling with individual rights”.155 In this sense, the interest of the individuals would be treated prudently on the ground of the “priority to right”.156
In the hearing phase of Dudgeon157, the UK authority repeatedly highlighted the particularity of Northern Ireland that it was a conservative society emphasizing on the religious matters, and in which the criminal sanction towards homosexuality was necessarily agreed by the a large number of population and institutional actors. Thus, homosexuality would be a serious damage to the “moral climate” of the North Irish society. The UK delegates held that the wording of Art.8 ECHR provided the legitimacy on the interference of the right to private life provided the public interest weighed over than the private freedom in some circumstance.
The Court could have deferred to domestic penalization through the utilitarian calculation of competing interests, or on the reliance of the previous case-law judgment of Handyside providing that “moral standard is diverse from the time to time and from the place to place”, though the majority of the contracting parties had no longer considered to be necessary or appropriate to criminalize the homosexuality. The Court, however, turned to a substantive scrutiny of whether or not the evidences submitted by the respondent state could reasonably deduce the conclusion that the decriminalization would be injurious to a moral climate in Northern Ireland. Regarding that State’s evidence did not reach the threshold of the probable cause, the Court determined that, though the sanction pursued the legitimate aim, the moral climate did not amount to “pressing social need”.
The Strasbourg Court, on the other side, relied its final judgment on the common consensus among the contracting states. The majorities of Convention contracting states had abolished the criminal punishment on the homosexuality, which left little margin of appreciation to the respondent state. This final decision might impact on the trends of Strasbourg jurisprudence in the sense that the Court had given up its previous standard of “no uniform moral standard” followed by the judgment of Handyside. Actually, the “living instrument” theory, established in the judgment of Tyrer158, concerning on the conventionality of judicial corporal punishment that most of contracting states has abolished, is usually to apply in order to search the European consensus.159 The respondent state will undermine the standard of the Convention in the condition that the Contracting States have reached the consensus, unless the evidence submitted by the state can strongly confirm that the sanction or punishment in question stems from basic constitutional identity relating to national spirits.
In the decision of A,B and C160 concerning the balance between right to unborn and the right to abortion, the Strasbourg court reserved a “wide margin of appreciation” for the Ireland Republic even though an European consensus had already formed among the majorities of contracting states. In the phase of hearing, the Irish authority stressed that the legitimate aim of these rules derived not simply from the strong Irish social morality stemming from the Catholic conservative tradition, but from the Irish democratic referendum, indicating that the Irish government would not accept any restriction from external tribunals. Thus, the Court encountered with a dilemma: (1) the Court subsidiarity prevents itself from violating the domestic democratic decisions unless they were “manifest deficiency” or “undermining the core of rights”; (2) the Court is obliged to require the respondent state to observe the pan-European standard persuasively applied by the majorities of CoE states. The Court sought to solve this dilemma through the strategy of reversed deliberation. It was a very smart depart for the Strasbourg Court from from deliberating the beginning time on life. The Strasbourg purpose was no more than a quasi-deference to domestic decision in that it heavily highlighted that there was no European consensus on the start of “life”. Actually, the Court’s reasoning was counter-logical regarding the fact that majorities of contracting states allowing the lady’s right to abortion had implicitly formed a consensus on the issue of the “starting point of baby life”, though no affirmative provisions were written in the statutes. Actually, the Strasbourg Court would not like to challenge the Irish Constitutional identity, regarding that the legitimacy of the domestic decision against free abortion was established by the democratic referendum. 
The strategy of the reversed definition was also applied in the decision of Lautsi161 concerning whether or not the crucifix presented in the school had constituted the violations of freedom of religion and freedom of education. In the decision of Lautsi I, the Court took a substantive scrutiny on the state obligation for the protection of freedom of religion under the Convention regime. After a substantive balance between the protection of individual rights and respect to the local traditional culture, the Court required the Italian authority of maintaining its confessional neutrality in the field of public education, that was, refraining itself from imposing “beliefs, even indirectly, in places where persons are dependent on it or in place where they are particularly vulnerable”. The meaning of crucifix was defined by the Strasbourg Court as a “powerful external symbol”. Thus, the Italian government has breached the negative obligation to the freedom of religion considering that “the presence of the crucifix may easily be interpreted by pupils of all ages that as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion”. Moreover, the fact of the presence of the crucifix in a state-school constituted “sufficient serious and consistent” conviction of parents. In line with the interpretation of right, the Strasbourg Court affirmed that the possible influence of presenting crucifix in public school had violated the religious freedom of the children when they were indoctrinated Catholic view on one side, and their parents right to religious were undermined on the other side.
The decision of Lautsi I gave rise to a storm of political controversy in Italy and the other European States.162 The Grand Chamber of Strasbourg Court decided to rehear the case together with other CoE state governments, NGOs and the distinguished Law Professor Joseph Weiler. The Italian delegates claimed that Strasbourg Court has misunderstand the significance of crucifix presented in the state school, which could hardly be perceived as a simple religious symbol, but also be regarded as a cultural and identity-link symbol that impacted on democratic progress and Western civilization in the mind of Italian people. Though might be exert its power to student in daily life, the image of crucifix was no more than a “passive symbol”. Its impacts on the individuals was not equivalent to the influential capacity of an “active conduct”. No one asserted the Italian teaching materials and syllabus had been influenced by the presence of crucifix in the classroom. The students in Italy received an education promoting them to develop a critical outlook on the question of religion, in a dispassionate atmosphere from which any form of proselytizing exclude. The Italian delegates did not agree with the Court’s definition of “confessional neutrality” which has been interpreted the same to the notion of “liberal neutrality” or “secularism” ideology. They argued that “confessional neutrality” did not mean that the respondent state had a positive obligation to the elimination of all religious symbols in public financed institutions and organizations, nor was the very synonymy to “secularism” which was the ideology with no less problematic than proselytizing by the State. 
The Grand Chamber in Lautsi II had no longer reviewed the case from substantial requirement of state obligation in the area of freedom of religion and education, but reversed to consider whether the plural meaning of crucifix, proposed by the Italian authority, could be viewed as a local culture compatible with the Convention obligation. Finally, the Court accepted the Italian proposal on the plural meanings of crucifix. According to their arguments, the meaning of crucifix was different from the place to place. Thus, the Strasbourg Court did not take a substantive evaluation on whether the essence of the right to education or the freedom of religion and philosophical conviction was infringed.
 
B. Proportionality test in the relationship of “means-ends” (“Necessary Test”)
Departing from the aforementioned decision of Belgian Linguistics, the proportionality test substantially contributes to the test on the reasonableness and appropriateness between the means employed and goals pursued. Unlike the function of fair balance between the competing interests, the reasonableness of “means employed and pursued goals” has few relations to “balance” among the conflicting objects. It only focuses on the reasonableness of the realization of pursued goals at the cost of individual rights. In the context of European Convention, the proportionality test on the reasonableness of relationship between “means-ends” is usually narrowly defined the same to the “necessary test”. The latter has been persuasively criticized in that the approach was too general and vague163, not capable of serving clear predictability to member states or applicant individuals. This term, depicted in the ruling of Handyside, has many semantic differences from “indispensable” (“absolutely necessary”, “strictly necessary” or “to the extend strictly required by the exigence of the situation), neither has it the flexible characters of such expression as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable”. Thus, the state authorities are granted the mandates to initially assess the reality of the social pressing need implied by the notion of “necessary”. 

1.Effectiveness (sufficiency) of the employed means to the pursued goal
Respondent states are imposed the onerous of “burden of proof” for confirming that the employed means have certain connects to the realization of the pursued goals. The test formula requires the respondent states of showing the effectiveness and relevance, though might not be in a strict sense, between the purpose pursued and means employed.
Similar to the judgment of Dudgeon, the Court in the case of Daroczy164, concerning a lady was no longer permitted to use her wrongly registered name after her husband passed away, adopted the relevance-based “means-ends” test formula. The Court examined the relevance of continuously using of her wrong registered name to the negative influence of the national registries and the interest of her late husband in question. The Court determined that the government did not put forward any convincing evidence proving that genuineness of the system of State registries or the rights of applicant late husbands at risk. Therefore, the Court argued that the restriction imposed on applicant was too rigid and her interest were completely ignored regarding that she was forced to alter a name which had been used more than 50 years and had given her a personal link to her late husband.
In other judgments, the Court scrutinized the effectiveness or suitability between the means employed and goals pursued from the perspective of sufficiency in a highly frequency. In some easy cases, the Court could readily determine, laying the “burden of proof” aside, whether the means employed were sufficient or effective provided the aimed consequence occurred independently from the means employed. In the decision of Observe and Guardian165, concerning the injunction on republishing a chapter about illegal and secret scandal of British intelligent agency from a publication, the Court determined that the restriction imposed by the British authority was no longer “necessary in the democratic society”, regarding that the object of the information has already been well-known home and abroad. 
Even though the disclosure of relevant confidential information was attributable to the applicant’s illegal acts, State’s injunction on the circulation of publication or newspaper might be unnecessary or disproportionate. The decision of Plon166 concerning the illegal leaking the health information of late President Mitterrand could verify my presumption. Although the Court had affirmed the legitimate aim and the proportionality of interim injunction on the book publication “Le Grand Secret”, the Strasbourg judges determined that the health information of Mitterrand was no longer confidential. By the time of court’s decision, not only more than 40.000 copies had already been sold, but also the Mitterrand’s medical information that was a considerable public issue had been disseminated on the internet. Consequently, the injunction on book publication was not treated as a suitable measure to hide the Mitterrand’s confidential medical information. 
However, it is not always easy to determine whether or not the measures employed are suitable or relevant to the pursued aims in hard cases. The restrictive measure might partially, but not completely, prevents from or cause to the occurrence to the purposed event, while the employed measure pursues more than one aims in a certain circumstance. For instance, the requirement of wearing off Muslims headscarf at the check desk can be regarded as a preventive measure against terrorist activities. However, Considering that those terrorists know many other ways carrying the bombs and weapons into board other than hiding them under the scarves or hats, it must be ridiculous to believe that the requirement to remove the headgear or headscarf will be completely effective to eliminate the terrorist threats. In this circumstance, the deference is the most appropriate choice for the Strasbourg Court in the circumstance that the Court has difficulty to evaluate the factual problems or any particular reason to intensify its judicial review167, unless the state conduct was found “manifestly unreasonable”. 
In the case of Johansen168, the applicant had been deprived of her parental responsibility to a new baby because of her physical and psychological problem. In addition, a Norwegian Committee decided to foster her baby in a second adopt family and refused to leak the information of its new address. The Court provided a wide margin of appreciation to the respondent state in principle. However, considering that the present domestic measure could potentially bring the adverse effect to the future interest of the baby, the Court warned that a more strict scrutiny should be taken by the respondent state in this case for securing the effective protection of right of parents and the child to respect their family life.
 
2. Less intrusive doctrine 
The doctrine is considered as one of most stringent forms of proportionality appraisal. The Court empirically and factually assesses the various alternatives, then chooses one of the most effective and less burdensome on the interference of the individual rights after a strict balance between the advantages and disadvantages.169 Actually, this doctrine is the core part of the orthodox proportionality test, which has been persuasively applied by the Strasbourg court in many cases. For instance, in the decision of ürper170 concerning the Turkish government completely prohibit the dissemination of a newspaper for the reason that some published articles had publicly support the activities of Kurdish separatist, the Court determined that the state injunction was obvious disproportional regarding that it could have adopted the less intrusive measure capable of realizing the same purpose. Thus, the Court suggested some alternative measures, such as confiscation of particular issues of newspaper or the prohibition on the publication of specific articles. In the case of Müller171, concerning on painting exhibition, the Court did not agree with the confiscation of painting swith obscene was only alternative measure to the prohibition of whole exhibition. The less intrusive measures, such as imposition of prior permission or an age limit for admission, should be taken into account by the state authority. The measure most burdensome on the interference of rights could be justified only if there is no other less intrusive alternatives
Even though the Court may not know the exact alternatives applicable to hard cases, the Strasbourg judges might also require the respondent state to make effort to look for a less restrictive alternative, rather than disproportionately derogates from the Convention rights. In a case concerning a general ban on demonstration on the ground of protection of social order, the European Human Rights Commission emphasized that such a restriction could only be justified if there was a real danger of disorder that could not be prevented by any other less stringent measures.172 In the decision of Socialist Party173, the Court required the respondent state to adopt a less restrictive measure, instead of dissolution of political party, unless the Turkish communists aimed to overthrow the democratic regime.
Since the Court usually faces technical problems to define the theoretical and practical meanings of “least intrusive” or “equally effective”, the Strasbourg judges have many difficulties to propose concrete measures, but only provide some general guides to the respondent states. In some occasions, since the Court lacks of equipment to propose the concrete measures, the Strasbourg judges will defer to domestic decision In the case of Hatton174, people living close to the Heathrow Airport were disturbed by the noise of air taking off and landing. Comparing with the move of airport, it is more reasonable to find an alternative solution which should not be harmful to the flight service. The alternative resolutions submitted by the Airport and applicants were various ranging from reducing the number of takeoffs and landing to equipping insulation of noise for the houses near to the airports. Not mention to the assessment of numerous alternatives was time-consuming, but also the Strasbourg Court was ill-equipped to do such a task because of the lacks of relevant instrument for selecting a qualified one from all the solutions.
 
3. Chilling effect doctrine 
The Strasbourg regime must evaluate whether or not the measure employed by the State government may lead to a potential negative effect that deters not only applicant concerned, but also other potential citizens in the same position. This doctrine application demonstrates the Strasbourg Court attributes its commitments to active protection of the core of convention rights. In the formula of the proportionality test, the application of the doctrine of chilling effect could provide a more intensive protection than less intrusive measure doctrine. Even in the case that the alternative chosen would be considered as the least burdensome, the very necessity of taking this measure will be called into question, provided that the measure adopted is perceived to have a deterrent impact on Convention. However, the doctrine should not be seen as the same approach as in the “necessity test”, but it contribute to “a fair balance between the interest”. In the case of Barfod175 concerning defamation, the applicant was imposed to fine for his public condemn to disqualification of two lay judges. The Strasbourg Court held that although the outcome of proportionality met with the legitimate aim and the respondent state enjoyed a wide margin of appreciation, the Danish Supreme Court must prudently balance the interest between the judge reputation and the value of open discussion on the topic of public concerned issues. The domestic judgment determined by the Danish Court might cause a chilling effect in that the other citizens would be discouraged, for fear of criminal or other sanctions, into voicing their opinions on the relevant public concerned issues.
In the field of testing the appropriateness between the means and ends, the doctrine of chilling effect is aim to protect the weighed interest from be undermined by the state measures. In the case of Goodwin176 concerning a court order commanding the journalist to hand over his notes  to the competent courts within the due time, the Strasbourg Court strongly opposed to the domestic decision for the reasons that the protection of source of the information was the core of free press. Without such a protection, the volunteer might be deterred from leaking useful information on the matters concerning the public interest. The British court order thereby resulted to a chilling effect in the sense that the vital role of the press would be undermined and the ability to provide the accurate and reliable information might be adversely affected. 
It seems still vague that to which rights and to what extend the Court can apply this doctrine. Takahash asserts that the application of doctrine is only confined to Art.10 and Art.11 ECHR177  relating to the political issues and public interests. Noticeably, the Court always protects the “essence of rights” by applying this doctrine which is regarded as the most effective measure for the guaranteeing the minimum standard of Convention rights. This implies that the Strasbourg Court may potentially extend this doctrine application to the other Convention rights, such as Art.6 ECHR (right to fair trial). Legg’s arguments on the nature of Convention rights possibly provide us a good inspiration. The Court could scrutinize the domestic measure to interference of right with the strong nature more intensively than the those rights with the weak one.178
 
IV. Conclusion
Generally, the proportionality test in Strasbourg regime serves two main functions: (1) striking a fair balance among competing interests; (2) test the reasonableness and appropriateness between means employed and aim pursued. In the first function, the Court is obliged to strike a fair balances among competing interests on the basis of interest-based rights theory. Within the Strasbourg framework, the Court absolutely safeguards the essence of rights which is usually regarded as the minimum European protection through the rights interpretation. Beyond the essence of “rights”, the outcome of Strasbourg balance might be various on the basis of the different facts or values. Thus, the Court has to balance the weights of competing interests under the Convention legal order, and accordingly, defines the scope of margin of appreciation. In the fields of public affairs, Convention rights are given the priorities or “weak priorities” to the counterpart collective goods. In contrast, the Court would take some strategies in some occasions concerning debates in the sensitive moral areas, such as the homosexuality, religion issues and local culture etc, for hiding its real purpose to the deference to domestic decisions, rather than substantially take the proportionality test to assess the national decision under the Convention order. The Strasbourg Court will impose the onerous responsibility of “burden of proof” to the respondent states who are obliged to present convincing evidence to prove the legitimacy or justifiability of the interference of Convention rights. Sometimes, the European common consensus is treated as a reason for anti-particularism morality. In some exceptional circumstances that the submitted evidence specifically weighs over than the European common consensus, for instance the restrictive measure adopted by referendum, the Court must scrutinize the domestic decision very prudently, because it may be constitute one part of state constitutional identity.
On the other hand, proportionality test acts as a main measure to test the reasonableness and appropriateness between the means employed and goals pursued after the decision of Belgian Linguistic case. Theoretically, the measure adopted by the respondent states must have a relevant and sufficient connection to the pursued aims. In this sense, the Court rules out the reasonableness or justifiability of measure imposed by the respondent state if the occurrence of the consequence is independent from the measure.
The less intrusive doctrine is the most restrictive proportionality sub-principle by which the Court can selects out a most appropriate resolution least burdensome to the individual interest with the equal effect to realize the goal pursued. However, the Strasbourg subsidiary role possibly indicates that the domestic courts are better placed than the Strasbourg Court reviewing the domestic cases. Particularly, the Strasbourg Court cannot replace its opinion with the domestic ones in the hard cases where the causal relationship between the means and effects are complicated. Due to the lacking of local knowledge or the absence of instrument at its disposal, the Court has very limited possible solutions but usually defers to the domestic decisions unless they are found “manifestly unreasonable”. Therefore, the Strasbourg subsidiarity is the very reason to demonstrate Strasbourg Court cannot easily apply the proportionality test as the CJEU or German Constitutional Court does. Moreover, the Strasbourg Court must avoid the chilling effects of domestic restriction to the fundamental rights, even though the selected restrictive measure is the less intrusive one. Neither the outcome of balance nor the measure taken by the state authority is allowed to undermine the core of convention rights. Though the doctrine of “chilling effect” has been invoked into the very few judgments, it indeed exerts a very strong impact on the protection of individual rights.
 
* Jizeng Fan (范继增), Ph.D Candidate in Comparative Constitutional Law and European Human Rights Law, in Scuola Superiore Sant’anna Pisa, Italy. The author would like give special thanks to Prof. Paolo Carrozza, Prof. Giuseppe Martinico, Prof. Wenzhan Ban, Prof. Filippo Fontanelli and Prof. Quan Liu.
1. Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, Columbia Journal of Transnational Law (2008), vol. 43, at 75.
2. Eric Engle, The History of the General Principle of Proportionality: An Overview. The Dartmouth Law Journal (2012), vol. 10, at 2.
3. Moche Cohen-Eliya & Iddo Porat, American Balancing and German Proportionality: The Historical Origins, International Journal of Constitutional Law (2010), vol.8, pp.270-271. For instance, Art.10(2) of the Prussian General Law of 1974 authorized the government exercising the police power for ensuring public peace. However, the applicability of this provision was only limited those powers to such measures as were necessary to achieve the chosen goals: “The Police is to take necessary measures to for the maintenance of public peace, security and order”. The concept of Rechtsstaat permitted the government to infringe the individual rights but only when such infringement was authorized by law.
4. Thomas Poole, Proportionality in Perspective, LSE Law, Social and Economy Working Papers 16/2010, pp.1-2. Between 1882 and 1914, the Prussian Supreme Administrative Court made intensive use of proportionality as a method for examining the legitimacy of the government intervention in economic and social rights. Without explicitly announcing a new legal principle, the Prussian Supreme Administrative Court held that an exercise of political power that infringed on the political and economic rights must be proportional and narrowly construed.
5. The Decision of Prussian Administrative Court, No. 9/1882, para. 353.
6. Juan Cianciardo, The Principle of Proportionality: its Dimension and Limits, at http: http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=juan_cianciardo. (last visit 10 June 2015).
7. Margit Cohen, Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom, available on the website: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1619864. In the judgment of R vs. Secretary of State for Home Department, the majority of judges took pains to emphasize that proportionality was not part of domestic law, but Lord Bridge still laced his opinion with dicta such as “any restriction of freedom of expression required to be justified by nothing else than an important competing interest”. Since the proportionality test was the common tool for balancing among the competing interest in the European law regime, and with the UK adopted the 1998 Human Rights Act, under the Section 2 of which the domestic courts were required to take into account of the Strasbourg Jurisprudence and other bodied operating in the context of Convention, UK judges possibly no longer resist this European Continental doctrine. Cohen argued that “the doctrine was indeed adopted by post HRA courts, though the process of transplantation was far from straightforward and did not follow the simple two player-model”. In the judgment of De Freitas concerning the domestic affairs of Antigua & Barbuda, the Privy Council adopted the ground of proportionality with the reference of case-law Canadian and Zimbabwe Supreme Court decisions. Particularly, the decision of De Freitas relied on the formula of proportionality from Zimbabwe Court. The Canadian Supreme Court formula is almost identical to the German one. Actually, the British Court adopted the principle of proportionality in the decision of Daly though the judges had ignore the Section 2 of Human Rights Act, but relied their opinions on the Precedence of De Freitas. See also Bernhard Schlink, Proportionality in Constitutional Law: Why Everywhere but Here, Duke Journal Comparative & International Law (2012), vol.22, at 296-297; Jud Matthew & Alec Stone Sweet, All Things in Proportion? American Rights Review and the Problem of Balancing, Emory Law Journal (2011), vol.60, at 118-128. Although the US Supreme Court claimed that the proportionality principle was not compatible with the American Constitutionalism, some case decisions have historically relied on the principle of proportionality. For instance, in the several judgments concerning the application of Dormant Commerce Clause, the US Supreme Court adopted the doctrine of Least Intrusive Measure to assess the necessity of the restrictive measures, along with the “undue burden” standard. In the decision Chy Lung vs. Freeman, the US Supreme Court used the doctrine of Least Intrusive Measure the first time in the history. It stated that “We are not called upon by this statute to decide for or against the right of the State, in the absence of legislation by Congress, to protect herself by necessary and proper laws against the paupers and convicted criminal from abroad; nor to lay down the definite limit of such right ... Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessary ... The Statute of California goes so far beyond what is necessary, or even appropriate, for this purpose, as to be wholly without any sound definition, of the rights under which it is supposed to be justified”. In the decision Reid vs. Colorado, Justice Helan neatly expressed the constituent of the proportionality test in his opinion that “The State - Congress not having assumed the charge of matter ... - may protect its people and their property against such dangers, taking care always that the means employed to that end do not go beyond the necessities of the case or unreasonably burden the exercise of privileges secured by the Constitution of United States”. See also Vicky C. Jackson, Constitutional Law in the Age of Proportionality, The Yale Law Journal (2015), vol.124, at 3094-3095; Richard H. Fallon, Strict Judicial Scrutiny, UCLA Law Review (2007), vol.54, at 1267. Vicky argues that some areas of US constitutional law embrace the proportionality as a principle, as in Eighth amendment case law, or contained other element of the structured “proportionality review” widely used in foreign constitutional jurisprudence, including the inquiry into the “narrow tailoring” or “less intrusive alternative” found in US strict scrutiny; See also Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, 2006, p.49. Justice Breyer usually adopt the doctrine of proportionality in the case assessment. In the case of Turner Board SYS. INC vs. FCC, he presented his opinion that “whether there are significant less restrictive ways to achieve Congress over-the-air programming objectives, and ... whether the statute ... strikes a reasonable balance between a potential speech-restricting and speech-enhancing consequences”. In the dissenting opinion of Columbia vs. Heler, he explicitly invoked the principle of proportionality as a guide to permissible a regulation under the Second Amendment; See also T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, Yale Law Journal (1996), Vol. 96, at 989-991. The author criticized the US Supreme Court over-reliance on the doctrine of the balancing in constitutional interpretation, such as in the cases of Tennessee vs. Garner and Matthew vs. Eldridge, where the court aim to strike the balance among the different interests.
8. Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, Columbia Journal of Transnational Law, 47, 2008, at 75.
9. Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR, Antwerp-Oxford-New York: Intersentia, 2002, at 192. Actually, as early as in the judgment of Wachauf, The Luxembourg Court provided in para.18 that “the fundamental rights ... provided that those restrictions in fact correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights”. In the judgment of Fedesa, The Court set the modern formulation of the doctrine with the statement that “The Court has consistently held that the principle of proportionality is one of the general principle of the Community law. By virtue of that Principle, the lawfulness of the prohibition of an economic activity is subject to the condition that prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between the several appropriate measures recourse must be had to the least onerous, and disadvantages caused must not be disproportionate to the aims pursued. The EU legislators also perceive the importance of the said Principle, which has been incorporated into the EU Treaty and European Charter of Fundamental Human Rights. In art.5 of EU Treaty, it states that “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. In the Art.52(1), it proscribes “any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitation may only be made if they are necessary and genuinely meet the objectives of the general interest recognized by the Union or the need to protect the rights and freedoms of others”.
10. Gregoire C.N.Webber, The Negotiable Constitution: On the Limitation of Rights, Cambridge University Press, 2009, at 71-72; Julian Rivers, Proportionality Variable Intensity of Review, Cambridge Law Journal (2006), vol.65, at 181; Francisco J. Urbina, A Critique of Proportionality, The American Journal of Jurisprudence (2012), vol. 57, at 49. I prefer to take the four-pronged formulation of the proportionality test.
11. See Sweet & Matthew, Proportionality Balancing and Global Constitutionalism, at 75.
12. Matthew & Sweet, All the Things in Proportional? at 106.
13. Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, University of Toronto Law Review (2007), vol.57, at 389.
14. Matthew & Sweet, All the Things in Proportional? at 107.
15. Robert Alexy, Constitutional Rights and Proportionality, Revus, 22, 2014, at 54.
16. Robert Alexy, A Theory of Constitutional Rights, Oxford University Press, 2002, at 84-86.
17. Tor-Inge Harbo, The Function of the Proportionality Principle in EU Law, European Law Journal (2010), vol. 16, at166.
18. Robert Alexy, Constitutional Rights, Balancing and Rationality, Ratio Juris (2003), vol. 16, at 136.
19. Robert Alexy, A Theory of Constitutional Rights, at 66-67; T. Jeremy Gunn, Deconstructing Proportionality in Limitations Analysis, Emory International Law Review (2005), vol. 19, at 467-468.
20. Federico Fabbrini, The Margin of Appreciation and the Principle of Subsidiarity: A Comparison, iCourt Working Paper Series, No.15, 2015, at 13. Fabbrini held that the margin of appreciation doctrine is a subsidiary mechanism on the guarantee of the European Convention. Though many common characteristics of subsidiarity could be perceived in the both regimes, the principle of subsidiarity in the Strasbourg regime has its unique feature distinguished from that in EU Regime: (1) in the framework of the EU, the principle of the subsidiarity operates as a neutral concept aiming at the description of the competence distribution between the supranational organization - EU - and its member states. It both embodies the negative and positive definitions. The former aims at gearing toward protecting the autonomy of the member states from supranational interference, while the latter signifies leaving open the door for the need of the supranational action. In contrast, the Strasbourg subsidiarity, embedded on the doctrine of margin of appreciation, entrenches a bias against supranational oversight, reflecting the version that ECHR bodies should defer to the state, without encompassing simultaneously decision which empowers them to act; (2) The institutional focus on these methods is different. Although the EU principle of subsidiarity is addressed to all EU institution, its aim is mainly to direct the exercise of the legislative process: the EU law-making institutions, as well as today parliaments, are the addressee of the principle of subsidiarity. On the contrary, the Strasbourg subsidiarity has designed by the European Court of Human rights within a long period of time before the Protocol No.15. Its goal is to shape the adjudication process - consistent with the centrality of the judicial branch in the ECHR institutional architecture. Also see Sabino Cassese, Ruling Indirectly Judicial Subsidiarity in the ECtHR, http://www.echr.coe.int/Documents/Speech_20150130_Seminar_Cassese_ENG.pdf. at 2-4.
21. Janneke Gerards How to Improve the Necessity Test of European Court of Human Rights, International Journal of Constitutional Law (2013), vol.11, at 482; also see Fan Jizeng, Deference or Proportionality: Two Concepts of Margin of Appreciation in the Strasbourg Court and Their Influences, The Journal of Human Rights (2015), vol. 14, at 277.
22. Jeffrey A. Bauch, “The Margin of Appreciation and Jurisprudence of the European Court of Human Rights”, Columbia Journal of European Law (2005), Vol.11, at 129.
23. Alastair Mowbray, Subsidiarity and European Convention on Human Rights, Human Rights Law Review (2015) Vol. 15, at 313.
24. Lord Reef notes that “the Court, seeing itself as the guardian of the treaties and the uniform application of EU law, generally applies the principle more strictly”. In fact, the proportionality test is used as the means of preventing the distinguished discrimination and unnecessary barriers to market integration. Moreover, the member states theoretically are generally contributing to the integration of internal market, rather than limit it to the national interests. Thus, the freedom of states is often restricted by the Luxembourg interpretation of public EU interest. Proportionality is generally applied more strictly, when the member states or individuals ask the Court to protect their fundamental rights at the cost of the sacrifice of economic freedom. See http://ukhumanrightsblog.com/2015/06/27/supreme-court-on-eu-and-echr-proportionality-back-to-basics/.
25. Michal Bobek, The Effects of EU Law in the National Legal System, in Catherine Barnard & Steve Peers eds, European Union Law, Oxford: Oxford University Press, 2014, at 160-162. In fact, both supranational court claim they are subjected to the principle of subsidiarity. However, the same discourse is given the diverse definitions. In the context of EU, Art.5(4) proscribes that “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objective of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” The principle of subsidiarity is detailed by the “Protocol on the application of the principle of subsidiarity and proportionality”. Two logics sit in at the heart of EU principle of the subsidiarity: (1) the first logic expresses the concern that the Union should not intrude on national, regional and local political and cultural identities; (2) the second logic emanates from that of comparative federalism. All federal systems have a principle mediating the relationship between the federal and local government, and when it is not. In contrast, the “subsidiary” role of Strasbourg Court was originally established in the Strasbourg case law. In the ECHR Protocol No.15 adopted in 2014, the Convention subsidiarity became a written principle with the statement that “Affirming that the high contracting parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedom defined in this Convention and the protocol thereto, and that in doing so, they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of the Human Rights.” In my view, the discourse of “subsidiary” here means that the contracting states have the procedural rights to initially interpret and apply the Convention provision in the domestic instance, whereas Strasbourg Court has turned into a external supervisory court, rather than the fourth instance of domestic court in the European architecture of protection on fundamental rights. 
Also see Nikolett Hos, The Principle of Proportionality in the Viking and Laval Cases: An Appropriate Standard of Judicial Review, EUI Working Papers, 2009/06, at 4. Hos argues that the main rationale of the Proportionality test lies in its function of furthering market integration. The Court of Justice generally prefers to the EU uniform rules than national human rights protection, particularly in Melloni case where the Luxembourg judges referred to “balance of rights” only in rhetorical sense.
26. Dean Spielmann, Allowing the Rights Margin: in the European Court of Human Rights and National Margin of Appreciation Doctrine - Waiver or Subsidiarity of European Review, CELS Working Paper, 2012, at 3.
27. Bank Mellat vs. HM Treasure [2013] UKSC 39.
28.  Bank Mellat, para. 70-71.
29. However, I intent to argue that Strasbourg proportionality test were laid in a hundred percent different context with the Luxembourg Court. In Contrast, the Luxembourg judges and Advocate General us the ually use proportionality as a legitimate guidance to balance the rights or examine the validity of the least intrusive measure on the interference to the fundamental rights, e.g. C-274/99 [2001] ECR I-1659 para.111, I-1664 para 148; Joined Case C-465/00, C-138/00 and C-139/00 [2003] ECR I-5405 para 83; C-245/01 [2003] I-12527 para.72-74, etc.
30. Giuseppe Martinico & Oreste Pollicino, The Interaction Between the European System: Judicial Dialogue and Creation of Supranational Law, Cheltenham: Edward Elgar, 2012, at 147-148.
31. Giuseppe Martinico, National Judges and Supranational Law: Goals and Structure of the Research, in Giuseppe Martinico & Oreste Pollicino, The National Judicial Treatment of the ECHR and EU laws: A Comparative Constitutional Perspective, Groningen: Europa Law Publishing, 2010, at 12-14. Martinico summarizes the categories of legal status of European Convention in the national legal systems: (a) there are some constitutions characterized by the acknowledgment of a constitutional rank given to the ECHR in the domestic legal order: for example Austria and Netherland (essentially monist states); (b) some states are categorized by the acknowledgment of super-legislative ranking in the domestic legal order: for example: Spain and Portugal; (c) Other states are characterized by the acknowledgment of a legislative ranking in the domestic legal order: Scandinavian countries and United Kingdom; (d) Some domestic legal orders acknowledged the position of ECHR as an “norme interposto”(interposed norm) in Italian constitutional adjudication (see the Italian case n.348 and 349/2007) although in these judgment Italian Constitutional Court also stressed the need for the ECHR to be consistent with the constitution as such.This result has been reached by the Italian Constitutional Court after reasoning aimed at distinguishing the ECHR from the other international Treaties; (e) In other states (for instance Germany), the constitutional judiciary have identified some specific constitutional counter limit against the penetration of the ECHR. This seems to imply a supra-legislative nature is not inferable from the analysis of German Constitution; (f) In other states, the ECHR plays role of shadow constitution, for instance in Belgium and France. The case law of French Constitutional Council (DC 88-1082) have given direct application to the ECHR by integrating it into the “constitutional system”, conceiving the Convention as a further legal parameter to be taken into account in the evaluation of the constitutional validity of the norms. In 1990, the French Constitutional Council reminded the legislators that “they should respect those international human rights treaties ratified by the French authorities, which are the substantive part of French Constitutional law”.
32. Kudla vs. Poland, application no.64886/01, judgment 26 October 2000.
33. Kudla para.152.
34. Alec Stone Sweet & Helen Keller, The Reception of ECHR in National Legal Order, in Alec Stone Sweet & Helen Keller eds, A Europe of Rights: The Impact of ECHR on National Legal System, Oxford: Oxford University Press, 2008, at 20-21.
35. Paolo G. Carozza, Subsidiarity as a Structural Principle of International Human Rights Law, The American Journal of International Law (2003), Vol. 97, at 57. Carozza argues that subsidiarity fundamentally concerned with distribution of competence among the different levels of governance. Within European architecture of fundamental protection, subsidiarity is applicable whenever that Strasbourg Court are better placed to make decision than Strasbourg does.
36. Handyside vs. UK, application No. 5493/72, judgment 7 December 1972.
37. Steven Greer, The Margin of Appreciation: Interpretation and Discretion Under the European Convention on Human Rights, Strasbourg: Council of Europe Publishing, 2000,at 15-21. Also see Fan Jizeng, Deference or Proportionality, at 271-280.
38. Dean Spielmann, Whither Margin of Appreciation, Current Legal Problem Lecture, 20 March 2014, at 3.
39. A and Others vs. UK, application no.3455/05, judgment 19 February 2009.
40. A and Others, para. 154.
41. Julian Rivers, Proportionality and Variable Intensity of the Judicial Review, Cambridge Law Journal (2006), vol. 65, at 177.
42. R.St.J. Macdonald, The Margin of Appreciation, in R. St. J. Macdonald, J. F. Mascher and H. Petzold eds., The European System for the Protection of Human Rights, Dordrecht, 1993, at 84-95; Iain Cameron, National Security and the European Convention on Human Rights, The Hague/London/Boston: Kluwer Law International, 2000, at 30.
43. Klass and Others vs. Germany, application no. 5029/71, judgment 6 September 1978.
44. Klass, para. 41.
45. Klass, para. 49.
46. Klass, para. 49.
47. Rivers, Proportionality and Variable Intensity of the Judicial Review, at 200.
48. Eva Brems and Laurens Lavrysen, ‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights, Human Rights Law Review (2015), vol. 15, at 10.
49. Rivers, Proportionality and Variable Intensity of the Judicial Review, at 203-204.
50. Austin and Others vs. UK, application nos. 39692/09, 40713/09 and 41008/09, judgment 15 March 2012.
51. Austin and Others, para. 61.
52. Klass, para. 44.
53. Mowbray, Subsidiarity and the European Convention on Human Rights, at 340.
54. Loizidou vs. Turkey, application no. 15318/89, judgment 23 March 1995, para. 93.
55. Hebert Petzold, The Convention and Principle of Subsidiarity, in Ronald St. J. Donald, Frantz Matscher, Herbert Petzold (eds), The European System for the Protection of Human Rights, Hague: Martinus Nijhoff, 1993, at 59; Also see Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg’s Variable Geometry, in A.Follesdal, B.Peters & G.Ulfstein eds, Constituting Europe: The European Court of Human Rights in a National, European and Global Context, Cambridge University Press, 2013, at 90-92. He points out that “what Letsas call the ‘structural concept of the margin of appreciation’ is closely intertwined with the institutional/structural dimension of the subsidiarity, which underpins the rationale of distributive justice. This structural dimension of a margin of appreciation is predicted on the vertical distribution of powers between the supranational judiciary and national constitutional mechanism.” According to the Letsas argument, distinguished with what River said, the judicial deference is understood as a form of judicial restraint that debars international judges from examining de novo and second-guessing the decision reached by the national authorities. George Letsas, Two Concepts of the Margin of Appreciation, Oxford Journal of Legal Studies (2006), vol.26, at 722; Carozza holds the similar opinion on the relationship between the principle of subsidiarity and the margin of appreciation doctrine with respect to the structural sense. The margin of appreciation, in particular, provides a possible to foundation for valuing the diversity of human rights, and in some ways it so closely to resembles the idea of subsidiarity that some commentator have occasionally used the two terms as synonyms. Paolo Carozza, Subsidiarity as Structural Principle of International Human Rights Law, American Journal of International Law (2003), vol.97, at 69; Paul Mahoney, Universality versus Subsidiarity in the Strasbourg Case-law on Free Speech: Explaining Some Recent Judgments, European Human Rights Law Review (1997), at 364. Judge Mahoney used the term :subsidiarity” as a synonymous to the doctrine of the margin of appreciation; see also Howard C. Yourow, The Margin of Appreciation Doctrine in the Dynamic of European Human Rights Jurisprudence, Hague: Martinus Nijhoff, 1996, at 195-196. Yourow describes that “... that margin of doctrine is a technique for weighing and balancing claims and state defenses, especially in the determination of necessity for state action under the Article 8-11 limitation clauses. It is a method of determining aberrant state action, in conjunction with the consensus standard. It is also a more formal standard for the determination of deference to state discretion in several different but interrelated categories within the vertical division of power between the Strasbourg and the State Parties: deference to the will of the democratic legislature, to state executive and judicial fact-finding in the individual cases, to state interpretation of the Convention, ad choice means in carrying out responsibility for enforcement under the subsidiarity principle”; Janneke H. Gerards, Judicial Review in Equal Treatment Cases, Nijihoff, 2005, at 166.
56. I perceive that comparison of the competences between two European Courts may reveal the reason why the margin of appreciation has a kind of structural link to the Strasbourg subsidiarity. The Luxembourg Court may strictly invoke the proportionality test, since it has a judicial competence to interpret the content of public interest in the process of balancing competing rights or interests. In contrast, the Strasbourg Court cannot replace its opinion on the issue of public interests with domestic ones on the ground that it is not a fourth instance tribunal. It is the fundamental reason why the Strasbourg Court has not yet summarized a strict formula to define the scope of margin enjoyed by the states. Thus, the results are diverse from the case to case.
57. Yourow, The Margin of Appreciation Doctrine in the Dynamic of European Human Rights Jurisprudence, at 13.
58. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, at 2.
59. Eyal Benvenisti, Margin of Appreciation, Consensus, Universal Standards, New York University Journal of International Law and Politics (1999), vol. 31, at 843.
60. Greer, The Margin of Appreciation: Interpretation and Discretion, at 5.
61. J. G. Merills, The Development of International Law by the European Court of Human Rights, Manchester: Manchester University Press, 1993, at 151.
62. Jan Kratochvil, The Inflation of the Margin of Appreciation by the European Court of Human Rights, Netherland Quarterly of Human Rights (2011), vol. 29, at 325.
63. Greer, The Margin of Appreciation: Interpretation and Discretion, at 5.
64. Cora S. Feingold, The Doctrine of Margin of Appreciation and European Convention on Human Rights, Notre Dame Law Review (1977-1978), vol. 53, at 96.
65. Egeland and Hanseid vs. Norway, application no. 34438/04, judgment 16 April 2009.
66. George Lester, Universality vs. Subsidiarity, European Human Rights Law Review (1998), vol. 1, at 75.
67. J. G. Merrills, The Development of International Law by the European Court of Human Rights, at 174-175. Merrills describes “the margin of appreciation is a way of recognizing that the international protection of human rights and sovereign freedom of action are not contradictory but complementary. Where the one ends, the other begins. In helping the international judge to decide how and where the boundary is to be located, the concept of the margin of appreciation has a vital part of play”.
68. Humphrey Waldock, The Effectiveness of the System Set Up by the European Convention on Human Rights, Human Rights Law Journal (1980), vol. 1, at 9. Waldock notes that the doctrine of the “margin of appreciation”... is one of the more important safeguard developed by the Commission and the Court to reconcile the effective operation of the Convention with the sovereign powers and responsibilities of government in a democracy”.
69. A and Others vs. UK, application no. 3455/05, justification 19 February 2009.
70. Arai-Takahashi, The Margin of Appreciation Doctrine: A Theoretical Analysis, at 69-78. Professor Takahashi argues the doctrine of margin of appreciation are usually applied in the following four aspects: (1) finding or confirming legal facts; (2) assessment and evolution on the domestic law; (3) Assessment and evolution on the Convention rights; (4) Balancing on the individual rights and collective interests.
71. Lawless vs. Ireland, 332/57, Report of the Commission 19 December 1959. The European Commission of Human Rights stated that “It is evident that a certain discretion - a certain margin of appreciation - must be left to the Government in determining whether there exists a public emergency which threatens the life of the nation and which must be dealt with by exceptional measure derogating from its normal obligation under the Convention.”
72. Iverson vs. Norway, application no. 1468/62, judgment 17 December 1963.
73. Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine: A Theoretical Analysis, at 72; Yuval Shany, Towards a General Margin of Appreciation in International Law? European Journal of International Law (2005), vol. 16, at 910.
74. Shany, Towards a General Margin of Appreciation in International Law? at 917. Shany calls the “open-ended norms” as “result-oriented norms”. According his argument, there are three specific features: (1) these norms are indifferent to the manner in which a desired legal end is attained, insofar as its attainment is guaranteed; (2) state authorities are given discretion over choice of means and manner of implementing such norms; (3) the path to the desired social/public end is uncertain.
75. H. L. A Hart, The Concept of Law, Oxford University Press, 1994, at 127-128. Hart explains that “whichever device ... is chosen for the communication of standards of behavior, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture”.
76. Hart, The Concept of Law, at 136. Hart observes that “in every legal system a large and important field is left open for the exercise of discretion by courts and other officials in rendering initially vague standards determinate, in resolving the uncertainty of statutes, or in developing and qualifying rules only broadly communicated by the authoritative precedents”; Also see H.L.A Hart, Positivism and the Separation of Law and Morals, Harvard Law Review (1957), vol.71, at 612. He observes that “ ... ... instead of saying that the recurrence of penumbral questions show us that legal rules are essentially incomplete, and that, when they fail to determine decisions, judges must legislate and so exercise a creative choice between alternatives, we shall say that social policies which guide rhe judges’ choice are in a sense there for them to discover; judges are only ‘drawing out’ of the rule what ... is ‘latent’ within it.
77. Hart, The Concept of Law, at 253-254. He argues that “if it is an open question whether moral principles and values have objective standing, it must also be an open question whether ‘soft positivist’ provisions purporting to include conformity with them among the test for existing law can have that effect or instead, can only constitute directions to courts to make law in accordance with moralities”.
78. Application nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63 and 2126/64, judgment 23 July 1968.
79. Belgian Linguistic Case, at 24.
80. Belgian Linguistic Case, at 90.
81. Letsas, Two Concepts of Margin of Appreciation, at 709. Letsas reminds us to distinguish two categories of the margin of appreciation adopted by the Strasbourg Court. The structural concept refers to the limit of the review conducted by the Court and the scope of discretion given to the national authorities on the basis of vertical relationship between the Court and national authorities. On the other hand, Letsas contemplates that the “substantive concept of margin of appreciation” adverts to interpretative discretion in the area of substantive moral issues, such as the appropriate balance to be struck between an individual’s right and the public interest as a whole. Also see Arai-Takahashi, The Margin of Appreciation Doctrine: An theoretical approach, at 94-103. Following Letsas’s theory, Takahashi summarizes that substantive dimension of a margin of appreciation would be fallen down to: (1) Deference to national legitimacy; (2) Cases of ‘tyranny of the majority’ and denial of the margin of appreciation; (3) Recognition of cultural diversity; (4) The rejection of cultural values: a harmonization approach reinstated.
82. De Wilde, Ooms and Versyp v. Belgium, application nos. 2832/66, 2835/66, 2899/66, 18 November 1970.
83. De Wilde, Ooms and Versyp, para.93. The Court adopted a loose proportionality test to the measure taken by the member states when it noted that the European Convention allowed the states to restrict this rights, and, fundamentally, the restrictive measure would not bring a great loss to the applicants.
84. Handyside, para.48-50.
85. Arai-Takahashi, The Margin of Appreciation Doctrine, at 68.
86. Brannigan and McBride vs. UK, application nos. 14553/89 and 14554/89, judgment 26 May 1993.
87. Brannigan and McBride, para. 43.
88. Jeroen Schokkenbroek, The Basis, Nature and Application of the Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights, Human Rights Law Journal (1998), vol.19, p.36. He has identified three categories of cases where the Court utilizes the doctrine of the margin of appreciation: (1) where the relevant provision involves a balancing of interest; (2) where the articles in question contains vague expression; (3) where the Court has to determine whether a state has failed to comply with a positive obligation to protect a Convention right (eg. The right of access to a court under Article 6 (1) ).
89. Kratochvil, at 325.
90. However, the Strasbourg Court seems adopt the marginal approach in determining whether a treatment or punishment belong to the category of “inhumane and degrading” in the judgment of Soering. The Court provides that “What amounts to ‘inhumane and degrading treatment and punishment’ depends on all circumstance of the case”.
91. Johan Callewaert, Is There a Margin of Appreciation in the Application of Article 2, 3 and 4 of the Convention, Human Rights Law Journal (1998), vol. 19, at 6-9.
92. Pieter van Dijk, Godefridus J.H.Hoof & G.J.H Van Hoof, Theory and Practice of the European Convention of Human Rights, Hague/London/Boston: Martinus Nijhoff, 1998, at 28 and 49.
93. Handyside, para. 50.
94. Paul Mahoney, Marvellous Richness of Diversity or Invidious Cultural Relativism, Human Rights Law Journal (1998), vol.19, p.1. Judge Mahoney has given the factors that can influence the scope of the margin of appreciation: (1) the existence of common ground among member states regarding a right under the Convention will generally result in the Court granting a narrow margin to deviant states; (2) the nature of the rights; (3) the nature of duty incumbent on the states, (4) the nature of legitimate aim pursued by the state when interfering with the right; (5) the nature of activities being regulated; (6) the circumstance surrounding the case; (7) the actual wording of the Convention.
95. Bauch, at 125; Also see Arai-Takahashi, The Margin of Appreciation Doctrine, at 79. Takahashi held that “the inconsistent element is most salient seen in the case law of Art.10 ECHR”.
96. John L. Murray, The Influence of the European Convention on Fundamental Rights on Community Law, Fordham International Law Journal (2011), vol. 33, at 1404.
97. Bauch, at 126.
98. Arai-Takahashi, The Margin of Appreciation Doctrine, at 69-78. Generally, the doctrine of the margin of appreciation often invoked into: (1) the process of fact-finding and ascertainment of fact; (2) the process of evaluating national laws; (3) the process of evaluating the human rights norms in ECHR; (4) the process of balancing individual persons’ rights and public interest grounds; (5) the balancing between the competing rights and freedom.
99. Steve Greer, The European Convention on Human Rights: Achievement, Problems and Prospect, Cambridge University Press, 2006, at 224; Arai-Takahashi, the Margin of Appreciation Doctrine, at 87; Giulio Itzcovich, One, None and One Hundred Thousand Margins of Appreciation, Human Rights Law Review (2013), vol. 13, at 10.
100. Geroge Letsas, The ECHR as a Living Instrument: Its Meaning and Legitimacy, in in Andreas Follesdal, Birgit Peters and Geir Ulfstein eds., Constituting Europe: The European Court of Human Rights in a National, European and Global Context, Cambridge: Cambridge University Press, 2013, at 109. The European Court of Human Rights denied the legitimacy of judicial corporal and add: “The Court must also recall that the Convention is a living instrument which, as the Commission rightly stressed, must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member states of the Council of Europe in this field”.
101. Bauch, at 128; Yourow, at 157-158; Thomas O’ Donnell, The Margin of Appreciation Doctrine: Standard in the Jurisprudence of the European Court of Human Rights, Human Rights Quarterly (1982), vol. 4, at 479; Alieen MacHarg, Reconciling Human Right and the Public Interest: Conceptual Problem and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights, Modern Law Review (1999), vol. 62, p. 687.
102. Paul Mahoney, Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin, Human Rights Law Journal (1990), vol. 11, at 57.
103. Marcks vs. Belgium, application no. 6833/74, judgment 13 June 1979.
104. Schalk and Kopf vs. Austria, application no. 30141/04, judgment 12 June 2010; EB vs. France, application no. 43546/02, judgment 22 January 2008; Kozak vs. Poland, application no.13102/02, judgment 9 February 2009, etc.
105. Goodwin vs. UK, application no.25680/94, judgment 11 July 2002.
106. Murray, at 1405.
107. Arai-Takahashi, the Margin of Appreciation Doctrine: An theoretical approach, at 88.
108. Murray, at 1405.
109. Goodwin, para. 85.
110. Hirst vs. UK, application no.74025/01, judgment 6 October 2005.
111. Hirst, para. 80.
112. Bayatyan vs. Armenia, application no. 23459/03, judgment 7 July 2011.
113. Scoppola vs. Italy, application no.10249/03, judgment 17 September 2009.
114. Scoppola No.2, Dissenting Opinion, p. 47.
115. Berbadette Rainey, Elizabeth Wicks & Clare Ovey, The European Convention on Human Rights, 6th edition, Oxford University Press, 2014, at 80.
116. Merrills, at 151.
117. Letsas, Two Concepts of Margin of Appreciation, at 706.
118. Rainey, Wicks & Ovey, at 80.
119. Letsas, A Theory of Interpretation, at 80-81.
120. Rasmussen vs. Denmark, application no. 8777/79, judgment 28 November 1984.
121. Rasmussen, para. 40.
122. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, at 14.
123. Soering vs. UK, application no. 14038/88, judgment 07 July 1989.
124. Soering, para. 89.
125. Frantz Matscher, Method of Interpretation of the Convention, in Ronald St. J. Donald, Frantz Matscher, Herbert Petzold (eds), The European System for the Protection of Human Rights, Hague: Martinus Nijhoff, 1993, at 79.
126. Dean Spielmann, Allowing the Rights Margin, at 22.
127. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, at 14.
128. Arai-Takahashi, The Margin of Appreciation Doctrine: An theoretical approach, at 74-80.
129. Shany, at 935.
130. Steven Greer, “’Balancing’ and European Court of Human Rights: A Contribution to the Habermas-Alexy Debate,” Cambridge Law Journal (2004), vol. 63, at 434.
131. Alastair Mowbray, “A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights, ”Human Rights Law Review (2010), vol.10, at 289-317.
132. Greer, The Margin of Appreciation, at 20.
133. Czarnowski vs. Poland, application no. 28586/03, judgment 20 January 2009.
134. Czarnowski, para. 27-33.
135. A vs. Norway, application no. 28070/06, judgment 9 April 2007.
136. Rainey, Wicks and Ovey, at 333. The authors describe “... the margin of appreciation is at the heart of review by the Strasbourg Court of decisions made by Contracting Parties. This brings into play the doctrine of proportionality. It would seems that the margin of appreciation goes to the legitimacy of aim of the interference in meeting a pressing social need, whereas the doctrine of proportionality concerns the means used to achieve that aim. The two doctrines are, however, intertwined, and many cases illustrate how the principle of proportionality has been used to show that a Contracting party has gone beyond its margin of appreciation”.
137. Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, at 193.
138. Jean Paul-Costa, The European Court of Human Rights and Its Recent Case Law, Texas International Law Journal (2003), Vol. 38, at 461.
139. Belgian Liguistic Case, 1474/62, 23 July 1968.
140. Thilmmenos vs. Greece, 34369/97, 6 April 2000.
141. George Letsas, Two Concepts of Margin of Appreciation, at 719.
142. Steven Greer, What’s Wrong with the European Convention on Human Rights?, Human Rights Quarterly (2008), Vol. 30, at 697.
143. Steven Greer, What’s Wrong with the European Convention on Human Rights?, at 700.
144. Lingens vs. Austria, application no. 9815/82, judgment 8 July 1996.
145. Orban and Others vs. France, application no. 20985/05, judgment 15 January 2009.
146. Philis vs. Greece, 12750/87, 13780/88, 14003/88, judgment 27 August 1991.
147. Aerts vs. Belgium, 61/1997/845/1501, judgment 30 July 1998.
148. Mathieu Mohin and Clerfayt vs. Belgium, 9267/81, judgment 2 March 1987.
149. Aziz vs. Cyprus, 69949/01, judgment 22 September 2004.
150. Hirst vs. UK, 74025/01, judgment 6 October 2005.
151. Evens vs. UK, application no. 6339/05, judgment 10 April 2007.
152. Sunday Times vs. UK, application no. 6538/74, judgment 26 April 1979.
153. Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, at 106.
154. Brind and Others vs. UK, application no. 18714/91, judgment 9May 1994; Zana vs.Turkey, application no. 69/1996/688/880, judgment 25 November 1997.
155. Greer, What’s Wrong with the European Convention on Human Rights 700; Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, at 16.
156. Mattias Kumm, Constitutional Rights as Principle: On the Structure and Domain of Constutional Justice, International Journal of Constitutional Law (2004), vol. 2, at 591.
157. Dudgeon vs. UK, application no. 7525/76, judgment 24 February 1983.
158. Tyrer vs. UK, application no. 5856/72, judgment 25 April 1978.
159. George Letsas, The ECHR as a Living Instrument: Its Meaning and Legitimacy, in Andreas Follesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context, Cambridge: Cambridge University Press, 2013, at 112.
160. A, B and C vs. Ireland, application no. 25579/05, judgment 16 December 2010.
161. Lautsi vs. Italy, application no. 30814/06, judgment 3 November 2009.
162. Dominick Mcgoldrick, Religion in the European Public Square and in the European Public Life - Crucifixes in the Classroom, Human Rights Law Review (2011), vol. 11, at 451.
163. Janneke Gerards, How to Improve Necessity Test of European Convention on Human Rights, International Journal of Constitutional Law (2013), vol. 11, at 482.
164. Daroczy vs.Hungary, application no. 44378/05, judgment 1 July 2008.
165. Observe and Guardian vs. UK, application no. 13538/88, judgment 26 November 1991.
166. Plon vs. France, application no. 58148/00, judgment 18 August 2004.
167. Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights, The Hague: M2009, at 191.
168. Johansen vs. Norway, application no. 17383/90, judgment 7 August 1996.
169. Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, at 15.
170. ürper and others vs. Turkey, 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07, 20 October 2009.
171. Müller vs. Switzerland, application no. 10737/84, judgment 24 May 1988.
172. Christian against Racism and Fascism vs. UK, application no. 8440/78, judgment 16 July 1980.
173. The Socialist Party and Others vs. Turkey, 20/1997/804/1007, judgment 25 May 1998.
174. Hatton and Others vs. UK, application no. 36022/97, judgment 2 October 2001.
175. Barfod vs. Denmark, application no. 11508/85, judgment 22 February 1989.
176. Goodwin vs. UK, application no. 17488/90, judgment 27 March 1996.
177. Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, at xiv.
178. Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality, Oxford: Oxford University Press, 2012, at 215-216.