Proporcingumo principas Europos žmogaus teisių teismo jurisprudencijoje: bendrieji sampratos ir taikymo bruožai

ENThe article deals with the most general features of the concept of proportionality and its application by the European Court of Human Rights (ECtHR) when interpreting and applying individual rights enshrined in the Convention and its additional Protocols. It is argued that the principle of proportionality, as applied in the case law of the ECtHR, could be generally defined as a multifunctional instrument stemming from the idea of a democratic society, which is employed by the Court in order to determine whether national institutions maintained a fair balance between the conflicting Convention rights and/or individual and public interests. The application of the principle of proportionality by the ECtHR in the context of negative obligations concerning relative rights is based on a complex nature of balancing, in the course of which relevant circumstances characterising both the grounds of the interference and its scope are weighted. The elements of a three-tier proportionality test, including the element of the least restrictive alternative arc employed in a complex manner, i.e. together with other circumstances relevant for a particular case.Therefore, the element of the least restrictive alternative, which manifests itself in the case law of the ECtHR mainly as a criterion of a procedural nature (i.e. envisages the obligation by national institutions to explore the possibilities to adopt the less restrictive alternative and to provide clear arguments as to their inadequacy), should not equated with 'necessity' of a tripartite test, as a relatively independent stage proportionality assessment. The element of the least restrictive alternative is employed in the Court's practice as one of the criteria used in order to determine whether a fair balance between the competing interests was struck. The balancing-based approach adopted by the Court is further elucidated by the fact that the mainly factual criterion of the least restrictive alternative is not clearly distinguished from the evaluative criterion of 'more favourable alternative', requiring, where possible, to adopt a less effective or a more expensive measure order to place lesser restrictions upon individual rights. The weight assigned to each of these criteria in a particular case depends upon the width of the margin of appreciation enjoyed by the state and usually directly relates to the nature of impugned interference and its effect upon the relevant Convention right(s).