How to improve the necessity test of the European Court of Human Rights

Abstract

According to the case law of the European Court of Human Rights, interferences with rights protected by the European Convention on Human Rights can only be accepted if there is a proportionate relationship between the interference and its legitimate objectives, that is, if they are “necessary in a democratic society.” The Court has given shape to this test by developing standards such as that of the existence of a “pressing social need” and of “relevant and sufficient” reasons. However, these standards appear to be rather vague, and the Court’s case law on the test of “necessity” lacks transparence. For that reason, this article proposes the introduction of the more classic three-part test of proportionality in the Court’s case law. The article focuses on the use the Court might make of two particular elements of this test, that is, the test of suitability and the least-restrictive-means test. If applied correctly, the systematic application of these tests can contribute to the clarity and persuasiveness of the Court’s reasoning.

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