June 25, 2012
Can efficiency for the realization of a public good justify a rights-restrictive measure? Of course not. Human rights protect not only from governments or individuals with bad intentions, they also foreclose certain courses of action for the well-intended. That torture works to elicit confessions, is an argument often made by those who practice it, yet which the human rights community has rightly set aside as irrelevant . That the death penalty works against recidivism is clear yet also irrelevant. This is not because the goals –respectively making suspects confess to any crimes they may have committed and preventing recidivism – are not considered very important, but because these goals can and therefore must be pursued through other means.
Effectiveness plays a role in the necessity test in its negative dimension: when a restrictive measure is clearly unable to realize the stated goal – for example banning on privacy grounds the printed version of a publication that is freely available on the internet – it will fail the necessity test. In its positive dimension, effectiveness normally comes up only cursorily in the specific context of the search for less restrictive means. That a rights-restrictive measure is effective is generally implicitly assumed – what needs to be examined is whether or not it is overly restrictive. In that sense, the availability of less restrictive alternatives is sometimes taken into account. Such alternatives should be equally effective.
Against this background I was struck by the conclusion of the Court’s article 8 reasoning in Colon v. the Netherlands. The case concerns preventive searches in the city of Amsterdam. The mayor of Amsterdam had designated most of the old city centre as a temporary security risk area. In this context, a public prosecutor was empowered to order that for a randomly selected period of twelve hours any persons present in that area might be subjected to a search for the presence of weapons.
The measure was taken in response to a rise in violent crime. Evaluation reports demonstrated its effectiveness: there was an impressive decline of weapons-related incidents in the designated zones.
In dismissing the article 8 claim as manifestly ill-founded, the Court stated by way of conclusion that
‘given the legal framework surrounding such searches and above all the fact, as apparent, that they were effective for their intended purpose, the Court finds that the reasons given by the Government are ‘relevant’ and ‘sufficient’. The domestic authorities were entitled to consider that the public interest outweighed the subjective disadvantage which the interference with his private life caused to the applicant.’
Some readers of this decision might take issue with the ‘sufficiency of the legal framework’ element, since it is at least debatable whether a measure that basically treats everyone present in the city centre as a suspect should not require the intervention of a judge. Others might take issue with the Court’s seemingly minimizing an interference with a human right by calling it a ‘subjective disadvantage’. As explained, I took issue with the fact that the measure’s efficiency is presented as a determining criterion (‘above all’). In this case, the Court interprets the ‘necessity’ test as a ‘relevant and sufficient’ test. While evidence of efficiency proves the measure’s relevance, establishing its sufficience requires a different type of examination. The court should be aware that great results can sometimes be reached through means that are unacceptable in human rights terms. We need measures that really work to reduce crime and that conform to human rights standards. However, the Court should therefore be careful not to suggest that the fact that a measure works creates a presumption of human rights conformity.