HUMAN RIGHTS IN TIMES OF ILLIBERAL DEMOCRACIES - ΑΝΘΡΩΠΙΝΑ ΔΙΚΑΙΩΜΑΤΑ ΣΕ ΚΑΙΡΟΥΣ ΑΝΕΛΕΥΘΕΡΩΝ ΔΗΜΟΚΡΑΤΙΩΝ

Proportionality: An assault to human rights?

Proportionality and Moral Value Judgement Theory

George Gerapetritis

Professor of Constitutional Law, Faculty of Law, National and Kapodistrian University of Athens

Proportionality has been a standard feature in the jurisprudence of the national and international courts,[1] yet not without strong criticism from part of the legal scholarship.[2] Late professor Stavros Tsakyrakis was one of the most articulate opponents worldwide of the application of proportionality in cases involving human rights. In his seminal and broadly cited article with the provocative title “Proportionality: An assault on human rights?”,[3] he contradicted the essence and applicability of the proportionality test in human rights cases by setting two main axes of critique: (a) Proportionality is bad: it is a subjective mental process which is deprived of any objective measurement that could provide legitimate outcomes; it renders the idea of constitution futile, in that it embraces propositions that are not stable and/or knowable; and there is no common metric in the weighing process and eventually the ambiguity of balancing reaches every single element in the process, in the sense that there can be no either/or framing of the issue at stake. And (b) moral judgement is good: when discussing about human

rights, a moral discourse is indispensable instead of a debate about adequacy or intensity; and rights either are absolute or balancing is unavoidable, thus without some kind of definition (categorisation), the whole idea of rights is without any meaning. Professor Tsakyrakis, instead, suggested a version of a moral value judgement theory for dealing with hard cases involving conflicts among human rights.

In this paper, my endeavour is to set an outline of defense of proportionality against the above criticism. I set aside background arguments to that effect, such as that proportionality might indeed be considered an inherent element of the ideas of justice and fairness[4] or that balancing lies with the very concept of human rights and there can be no other way to decide relevant hard cases.[5] My counter criticism is founded on two premises: (a) proportionality is not in the main a broad balancing process but a framed legal test; and (b) the moral value judgement theory is not a plausible alternative for human rights hard cases, or is not anyhow less balancing process than the proportionality test.

In my argumentation I refer mostly to the case law of the EU Court of Justice[6] because it is rather underestimated in most of the literature concerning the principle of proportionality

and because it essentially embraces most of the rudiments of the principle as applied in domestic constitutional orders of the EU Member States as well as idiosyncratic elements of EU structures.[7] However, it is to be noted that even homonymous names such as the principle of proportionality, are applied slightly differently in the EU legal order and the national legal orders, inasmuch as the national law is framed by a “Constitution of limits” that sets limits on state interventionism, whereas the EU Law is framed by a “Constitution of objectives” that reviews whether every action taken by the EU institutions serves effectively the primary purpose of the European Union, which is the open market economy with free competition.[8] For instance, in the field of public procurement, according to the national case-law, any ground for exclusion, conflict of interest and restriction on the right to participate in a contract award procedure should be “not manifestly inappropriate”.[9] In other words, non-compete type restraints seem not difficult to justify, since the protection of competition is construed merely as a limit on state interventionism. On the contrary, the EU Court of Justice hardly justifies such a restriction, since the protection of competition constitutes the ultimate goal of EU Law. As a result, any restriction should be “absolutely necessary” and it is not sufficient that it is “not manifestly inappropriate”.[10] On the contrary, the case law of the European Court on Human Rights[11] which, although explicitly acknowledging proportionality as a means of review of national measures allegedly violating human rights, it is on occasions more inclined to the rather pragmatic approach of the US Supreme Court.

1. Proportionality as a balancing process

In my view the assimilation of proportionality test with a balancing process clearly misconceives its application in judicial practice worldwide. The proportionality test involves two stages: (a) discovery and evaluation of the purpose of the challenged act; and (b) inquiry whether the means adopted are suitable/necessary/proportionate to the goal pursued.[12]

The first stage involves a legal experiment to identify the goals of the impugned norm. These goals can be explicit or implicit but must be in any case a sincere reflection of the will of the legislator. Subsequently, the judge assesses whether the pursuit of concrete objectives can in the abstract be considered as legitimate in the context of the respective constitutional order. If the objectives of the challenged act fit in this conceptual framework, the judge will accept their admissibility, otherwise the act is declared void and no further control is necessary. In that, the first phase is a pass/fail test.[13]

The second stage involves the classical three-fold proportionality test, as originally introduced in the German law, namely suitability, necessity and stricto sensu proportionality.[14]

The suitability test involves an inquiry whether a specific measure, given its particular characteristics, is appropriate to serve the goal pursued.[15] The test involves technical reference to statistical data, expert reports, preceding experience or other relevant facts. As to the quality of the review, the suitability test is methodologically restricted to the impugned measure and does not involve an assessment of potential alternatives (“no hypothetical measures’ approach”). In that it is also a pass/fail test: a measure can either be suitable or unsuitable to serve a particular objective and it is irrelevant whether other measures could be, in a sense, “more suitable” than the one adopted. Thus, the judge should not go as far as to assess the relative suitability of the potential alternatives. As for the intensity of the review, the test is by and large technical: the judge does not go as far as to substitute his/her opinion for that of the rule maker. A measure is, thus, considered suitable if it contributes in general terms to the advancement of its objective,[16] and will eventually be annulled merely on the ground that the impugned measure is manifestly inappropriate to serve the goal pursued.[17]

The necessity test suggests a review whether the impugned measure exceeds what is necessary for its aims, most specifically whether on the record of the case there could have been alternative options that would interfere less with the human rights involved, i.e. milder

alternatives.[18] Obviously, the effective invocation of the necessity test depends on the quality of the applicant’s pleadings and especially of the invocation of potential milder means[19] and on the level of persuasion of expert opinions that might potentially be ordered by the competent court. In that, the judicial review in the context of the necessity test is evaluative: it contains a relative comparison among the lawful alternatives. The yardstick is the qualitative interference of the measures with the interacting human rights. Although such an assessment might enhance subjective elements, still the intrusion of a measure into the sphere of personal liberty is to a large extent objective. Further, although the Court of Justice, following the administrative law traditions of continental European systems, makes wide use of this methodological instrument, in very few occasions it effectively strikes down challenged measures by conceding that less restrictive alternatives for the human rights involved were originally in place. Besides, the mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the need for, and proportionality of, the provisions enacted to that end. Those provisions must be assessed solely by reference to the objectives pursued by the national authorities of the Member State concerned and the level of protection which they are intended to provide

(“no reading across jurisdictions rule”).[20] Thus, the Court allows for a broad discretion for the administration to assess the preferable solution among lawful alternatives.[21]

Stricto sensu proportionality might indeed embrace characteristics of a balancing process. It suggests an assessment of competing interests, i.e. human rights against each other or a human right vis-à-vis a public interest involved. Thus, prevalence must be awarded to the right with the greatest ranking in the systematic set of values of the legal system. In fact this type of proportionality test is the only one among the three layers that could properly be characterised as “balancing process”. Yet, two significant qualifications ought to be taken into account. First, the test in this particular form does not generally apply in a great number of legal systems.[22] Even where and when applicable, it does not go as far as to establish a fully-fledged balance of competing rights and interests but merely investigates whether the

impugned finds itself within a reasonable proportion between means and ends at the time that the state authority ought to have made the crucial decision and irrespective of the future effects of rules that could not have been accurately foreseen.[23] Secondly, when applicable, this test seems invariably to operate in favour of the violated human right and against the public interest invoked by the authority. In other words, stricto sensu proportionality seems to be triggered only collaterally as a last resort to annul an act which is unfavourable for a civil right, if other judicial resources seem inadequate to satisfy this purpose. It is incumbent to add that the intensity and the scope of the proportionality test increases when the measures affect not only the structure and purposes of the EU, but principally some aspects of the citizens’ fundamental rights, as for instance the economic freedom or the right to property.[24] It is to be noted that in recent years, the Court of Luxembourg has started to balance the scales again by considering the cases of economic liberties against fundamental rights and finding in favour of the latter.[25] The common core of all the above cases is that the quality and value of the purpose of an act are measured against the inconvenience it causes. If, on balance, the inconvenience of the measure outweighs its advantages, the act will be annulled on the ground of disproportionality.[26]

Overall, the proportionality test in EU Law applies not just between rights, public interests and considerations, but also between the multiple levels of government and according to the nature of the competence based on which the contested restriction was imposed. The way the proportionality principle is applied by the Court of Justice covers a spectrum ranging from a very deferential approach to quite a rigorous and searching examination of the justification for the contested measure.[27] According to Tridimas,[28] EU measures are generally judged sympathetically under the manifestly disproportionate test, whereas Member State measures are subjected to the procrustean least restrictive means test.[29] For Harbo, the explanation of such a structural asymmetry is provided by the desire to promote European integration.[30] The Court, in particular, fluctuates between granting ample discretional space to the EU institutions involved in the controversy, and adopting a “quasi-legislative” approach, that uses the proportionality principle to impose measures of legislative nature on Member States, even though formally the Court is only “interpreting” EU law and thus seemingly not invading into legislative competences of Member States.[31] However, the fact

that “no reading across jurisdictions rule” and “no hypothetical measures’ approach” are required, the least restrictive means test is more easily satisfied by Member States, which seems though to work against European integration. It is to be noted that even when the proportionality test is applied to EU measures, it may vary. More precisely, “when action is brought against the Community in an area of discretionary policymaking power, a[n even] looser form of the proportionality inquiry is generally used”.[32] On the contrary, proportionality test is increasingly strict when moving from discretionary policy choices to cases involving fundamental rights,[33] the internal market freedoms[34] and the principle of non-discrimination. Moreover, the greater the impact of the restriction imposed at the national level, the stricter the test is likely to be.[35] As far as Member State measures are concerned, the strict LRM test, which is in principle applied, it may be substituted be a deferential approach, when the field in question lacks European harmonisation. On the other hand, in areas of closer harmonisation such as the open market with free competition, the least restrictive means test comes to the forefront. In addition to that, “the more severe the impact on the Community interest or aim, the lower the degree of deference to the national measure which the Court will display, even if the nature of the State’s justification for that measure is one which would generally lead the Court to respect the State’s assessment of necessity”.[36] The two-speed proportionality test is subject to further variation according to the nature of the competence based on which the contested restriction was imposed (exclusive, shared competence, competence to support, coordinate or supplement the actions of the Member States or not conferred competence on the EU).[37] To put that point in concrete terms, the proportionality test in the context of the EU, is not a two-speed test but a multi-speed.

In the light of the above, both suitability and necessity as applied in the context of the proportionality review constitute technical juridical vehicles which do not constitute balancing but a process of assessment of empirical elements within the sphere of defined legal methodology. Only stricto sensu proportionality might be tantamount to a balancing process, yet it applies

on few occasions[38] and mostly to allow more space for the protection of human rights. Rival theories challenge the methodological clarity of the proportionality test on the ground that it cannot produce predictable results. Presumably, the argument is set on a wrong basis. The value of the legal methodology does not depend on the predictable outcomes but on the integrity and objectivity of the applied instruments. Therefore, the two basic proportionality tools, ie the tests of suitability and necessity enjoy a high level of integrity and objectivity.

2. Moral value judgement theories as applicable alternatives

Tsakyrakis’ theory considered that any human rights case ought to be decided on the basis of a moral value judgement concerning the relevant worth of the rights involved. He argued that with the balancing approach we no longer ask what is right or wrong in a human rights case but, instead, try to investigate whether something is appropriate, adequate, intensive, or far-reaching, which amounts to a genuine assault on the very concept of human rights.[39] He altogether rejected the “myth of mathematical precision”, which tends to conceal the impossibility of measuring incommensurable values by introducing the image of a mechanistic, quantitative common metric suggesting a correct answer to an extremely vexing and controversial question in moral philosophy. Further, he identified an alleged contradiction on the rationale of the principle: balancing makes sense only against the backdrop of various conflicting values; if all values were reducible, as proportionality suggests to a common metric, the problem that gave rise to the need for a balancing method dissolves. Accordingly, in the most simplistic version of balancing, there could not be any concept of fundamental rights having priority over other considerations, since interests protected by rights find themselves in the scale on a par with any of the other interests that individuals or the government have. On this account, the interests of the majority tend to outweigh the interests of individuals and minorities. The argument that moral value judgements on human rights are both objective and do not involve balancing is not without objections.

First, a moral value judgement relies by definition on subjective grounds that by and large embrace a principal balancing. The mere existence of a hierarchy of rights, which is at the core of the value judgement theory, is indeed the product of a subjective balancing of such rights. If right A altogether outweighs right B, on grounds that this derives from the moral

assessment of the bloc of rights, this statement is at the same time not objective and essentially adopts a balancing process. Further, this supralegal test has no methodological limits or criteria from a legal point of view. I may consider that freedom of speech morally supersedes as a matter of moral reasoning but no one is in a position to identify what are the criteria of this mental process. Because morality can by no means be understood uniformly in an ecumenical sense, the acknowledgment of some prior prevalence of one set of moral values over other such values is not objective. In that sense, moral value judgement is not less balancing process than stricto sensu proportionality and definitely more balancing process than the tests of suitability and necessity.

Second, moral value judgement theories seem to lie altogether outside the framework of the norm. If a right morally supersedes over others, this does not come as a matter of constitutional interpretation but clearly as a matter of moral or political philosophy. This is not only a matter of outcast of the classical legal positivism. If one stresses the argument to its limits he essentially annuls legal science and subjects it to an outstanding supralegal test.

Third, moral value judgement theories trespass the tolerable level of judicial legitimacy. Tsakyrakis suggested that balancing interests through proportionality goes beyond the level of legitimacy constitutionally accorded to the judiciary and, therefore, such competence ought to be reserved for the legislator. Yet, the proportionality test relies heavily on the interpretation of the rule produced by the legislator in the sense that it presupposes the identification of the goals pursued by the legislator in order to be tested against the goals pursued by the particular measure at stake. Indeed, a measure can only survive the suitability and necessity tests if it is within the scope of legitimate goals allowed by the legislator.[40] In this sense, it is the law itself that provides the legitimacy to the judiciary, as in any other form of intra legem interpretation. By way of contrast, a moral value judgement allows the adjudicator in interpreting the law to set his/her owns scale of rights by using personal moral standards pursuant to personal idiosyncrasy, thus totally ignoring the applicable norm. This by all means constitutes norm-setting process. [41]

Fourth, according to moral value judgement theories, preferential rights cannot be tested against any public interest involved. This is because such rights are, as a matter of principle, absolute and cannot, therefore, concede to any public interest. In this view, the violation

of human rights stemming from the public interest depends rather on the intensity of the restriction than on its incompatibility with the right in case. Yet, there are cases where there is a general acknowledgment that rights do concede, such as deprivation of liberty on grounds of criminal convictions or of disciplinary charges. In such cases, obviously, the restriction of the rights does indeed come as a matter of intensity of the imposed penalty because there can be incompatibility as a matter of principle. Only the disproportionate sanctions can, thus, qualify as violations of the right to personal liberty.

Fifth, the moral value judgement theories rely on a dogmatic delineation of every right in order to defend the key-thesis that rights are absolute. More or less, they suggest that there is a strictly delineated area of each right, within which there is full protection. Yet, this is somewhat contradictory, if delineation does constitute a concession from the allegedly absolute nature of the right. In other words, delineating a right is not some sort of an automatic mathematical process (which is one of Tsakyrakis’ main argument of the theory against proportionality), but requires a mental exercise that is subjective and embraces balancing elements. For example, unauthorised painting of others’ properties does not obviously fall within the protective scope of the freedom of expression or the freedom of art. The moral value judgement theory suggesting that this act falls outside the proper delineation of the respective rights is by all means circular, since it relies on a self-justified delineation that is not founded upon any objective. Accordingly, this theory at the same time altogether condemns the construction of the protective core of any right, that might be one aspect of the proportionality test, as patently not objective and not akin to rights, and favours a delineation that is even more subjective. Even in cases where moral value judgement theories seem to be a preferential ambit, such as the freedom of expression,[42] the absolute character of the said right leads to obvious paradoxes: does freedom of expression, as primary moral right, allows any sort of expression, including defamatory intentional false statements? Tsakyrakis’ empirical evidence was that under the balancing approach the outcomes of most free speech cases that involved communist speech during the Cold War were decided against freedom of speech. Yet, the theory finds its limits in cases such as those involving denial of the Holocaust. In recent decision Pastörs v. Germany of the European Court of Human Rights, where the applicant had been condemned for excessive speech denying the Holocaust,[43] the Court upheld that he had planned his speech in advance, deliberately choosing his words and resorting to obfuscation to get his message across, which was a qualified Holocaust denial showing disdain to its victims and running counter

to established historical facts. Thus, he had intentionally stated untruths in order to defame the Jews and the persecution that they had suffered, clearly misconceiving the special moral responsibility of States which had experienced Nazi horrors to distance themselves from the mass atrocities. Accordingly, the Court found that the conviction imposed upon the applicant had been proportionate to the aim pursued and necessary in a democratic society pursuant to Article 10 of the Convention. If freedom of expression is considered absolute as primary right, no false statement should be liable or punishable, no matter what the consequences or the motives might be. This is, however, by all means balancing at a higher level.

3. Conclusion

The moral value judgement theory is by all means a valid theory. This does not necessarily imply that it is a correct theory. It relies heavily on a dogma that (some) rights are absolute, without any specific criteria for such characterisation. This dogmatic approach seems also to apply in the argumentation of the proponents of the theory altogether. Tsakyrakis, in his well-known fighting spirit, set the standards of the debate and caused a serious academic dialogue on the matter. Nevertheless, it seems to me that until now there has been no credible and applicable theory to operate as an alternative to the well-established proportionality test. At least not within the traditional boundaries of the legal science.