The present dissertation examines the search for balance between the Convention rights, when they clash with each other, or between the Convention rights and other interests; criteria which guide such search; and the role played by the European Court of Human Rights (“ECHR”) and the domestic courts. The dissertation argues in favour of an approach where the search for balance is integrated into the overall examination of the case, following a prior delineation of the scope of the rights involved and determination of the normative weight of the competing interests.
In line with this approach, the dissertation presents a model of balancing in civil proceedings, which is sufficiently grounded in the ECHR’s case-law and at the same logically sound from a doctrinal standpoint. This model involves, on one hand, a circumscribed scope of rights that are generally given a priority over public interest and, on the other hand, a structured assessment employing a set of general criteria (definitional aspect). It also seeks to strike a balance in line with the principle that the more far-reaching the interference (or the more important the affected right) is, the more compelling the legitimate aims pursued should be (optimization aspect).
The model in question accommodates also the essential structural concepts of the Convention, namely the domestic authorities’ discretion and the principle of subsidiarity. The influence of these concepts on balancing is expressed through two basic principles. The first principle states that serious interferences allow for less discretion by domestic authorities and require stricter scrutiny by the ECHR. It applies also with respect to the civil-law disputes, where domestic courts are a priori granted considerable discretion in assessing conflicts of human rights. According to the second principle, the level of scrutiny (or restraint) exercised by the ECHR depends on the level of fulfillment of the implementation duty by the domestic authorities (that is the duty to apply the standards established in the ECHR’s case law).
The dissertation examines the implementation duty also in the context of the ECHR’s judgments against Slovenia. It observes that in cases reviewed by the ECHR, the Slovenian courts sometimes incorrectly assessed the proportionality, and often entirely overlooked it, leaving the ECHR no option but to fully assess the conflict between competing interests. While certain potential shortcomings in the Slovenian Constitutional Court’s jurisprudence are, indeed, identified, it is also noted that the changes in the legislation and the domestic case-law adopted after the ECHR’s judgments against Slovenia demonstrate the Slovenian authorities’ commitment to fully comply with their implementation duty arising from the Convention.
The research underpinning the dissertation also reveals certain significant challenges. These are related, in particular, to the ambiguous nature of the margin of appreciation and inconsistencies and the lack of clarity in the ECHR’s approach to certain questions, such as the applicability of Article 8 of the Convention in defamation cases; the definition of “the rights of others” as grounds for interference with human rights; the (non-)application of the proportionality test in adjudicating complaints related to property disputes between private entities; and the assessment of proportionality by the ECHR in cases where the domestic authorities entirely neglect their implementation obligations. These questions and their discussion in the present dissertation pave the way for future research, which could further illuminate and explain the doctrines related to the balancing in human rights disputes. Critical examination of these doctrines remains crucial fort the progress of both theoretical knowledge and effective and consistent application of the Convention in practice.
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