New publication: Less Restrictive Means & the Strasbourg Court

First of all, a Happy New Year to you all, dear readers! As far as we are concerned, 2015 couldn’t have started better. We’re proud to announce the publication of the article “‘Don’t use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”, written by prof. Eva Brems and I. The article is concerned with the emerging practice by the European Court of Human Rights to use more and more explicit lines of legal reasoning placing the examination of less restrictive means at the centre of its proportionality analysis. What is the theory behind this concept? How does it work in practice? Is there really a less restrictive means revolution going on in Strasbourg? For the answer to all these questions and more, you can access the article on the website of Human Rights Law Review.

Abstract

“Using a sledgehammer to crack a nut obviously is a disproportionate action, since one could use a nutcracker instead. Verifying whether there exists a less restrictive means (LRM) for a human rights restriction is a central question of proportionality analysis. This article provides both a theoretical discussion of the LRM test as developed within the German legal tradition, and an exhaustive analysis of the European Court of Human Rights’ practice in applying LRM reasoning. In two recent Grand Chamber judgments, the Court has explicitly endorsed the LRM test as part of its proportionality analysis. Nonetheless, it appears that the Court has not fully made up its mind on the application of the LRM test, which is illustrated by the lack of consistency in applying LRM reasoning, the lack of clarity regarding the substantive or procedural nature of the test and the struggle in applying the test to scrutinise general measures.”

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