June 20, 2018
By Laurens Lavrysen, postdoctoral researcher at the Human Rights Centre of Ghent University (Belgium)
A number of years ago, Eva Brems and I wrote an article “‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”. Using a sledgehammer to crack a nut is a quintessential example of a disproportionate action given the fact that an obvious less restrictive means (LRM) to do so is available in the form of a nutcracker. Similarly, the European Court of Human Rights has occasionally resorted to some kind of LRM analysis to determine the proportionality of a human rights restriction.
In our article, we mapped the Court’s LRM case law up to 2013. At that time, something was moving in this area. In 2012, in the judgments of Mouvement Raëlien Suisse v. Switzerland and Nada v. Switzerland, the Grand Chamber had endorsed in general terms some version of the LRM test. In the first case, under Article 10, the Court ruled that
“the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question” (para. 75).
In the second case, under Article 8, the Court used the following wording:
“for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right in issue whilst fulfilling the same aim must be ruled out” (para. 183).
Our case law analysis showed that the Court’s case law was characterized by a number of inconsistencies. In particular, a substantive version of the LRM test – requiring domestic authorities to actually adopt a LRM – coexisted with a procedural version thereof – requiring them merely to “consider” adopting such LRM. At the time it was however reasonable to expect that the developments at Grand Chamber level would trickle down and lead to a more consistent application of the LRM test throughout the case law as a whole. Almost five years of jurisprudence later, this however does not seem to have happened. In this blog post, I will discuss two recent judgments, both issued at the end of May, that illustrate the fact that the Court is still struggling to figure out where it is heading with the LRM test.
Burying one’s relatives
The first case I will discuss is the case of Gülbahar Özer and Yusuf Özer v. Turkey. The applicants’ children were killed by security forces in southeast Turkey. While the applicants wanted to bury the bodies in the city of Siirt, the local governor ordered to bury the bodies in another cemetery owing to disturbances in the Siirt cemetery. A request by the applicants to have the bodies buried in the city of Batman instead was rejected. During the night, the bodies were buried at the cemetery in the town of Eruh in the absence of the applicants and without a religious ceremony. The Court considered that the refusal to allow the applicants to bury their children in a cemetery of their own choosing and their inability to carry out the usual burial rites amounted to an interference with the right to respect for private and family life (Article 8). The Court decided to examine the proportionality of the interference mainly through the lens of the LRM test, invoking the following general principle:
“for a measure to be regarded as both proportionate and necessary in a democratic society, there must be no possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim.”
A bit further in the judgment, the Court reiterated this general principle, by holding that
“such a severe measure can only be justified, and be in compliance with the proportionality requirements of Article 8 of the Convention, if the national authorities had first ruled out the possibility of having recourse to alternative measures that would have caused less damage to the fundamental right at issue whilst fulfilling the same aim.”
In paragraphs 35 and 36, the Court applied this LRM test:
“35. In this connection the Court observes that a viable alternative was in fact suggested to the authorities by the applicants before the burial took place, namely that of burying their children in the city of Batman instead of Siirt. However, that request was not accepted and the applicants were not provided with any reasons for the refusal to entertain it. Moreover, the national courts failed to examine why that alternative solution was not considered by the authorities.
36. Secondly, the Court considers that the authorities could have, at the very least, ensured that the applicants were present during the burial of their children in Eruh cemetery. Furthermore, the authorities could have delayed the burial for a short period until the necessary security precautions had been taken and then, if necessary, limit the presence at the burial to only the applicants and other close family members. However, no thought appears to have been given to this possibility by either the national authorities or the courts.”
The Court concluded that “[i]n the light of the foregoing failure to give due consideration to any alternatives, the Court finds that the measure in question did not strike a fair balance.” The application of the LRM test was clearly decisive in this case. Notably, there is some inconsistency in terminology as to the substantive or the procedural character of this test. The general principle invoked by the Court is framed in such a manner as to suggest that it is a substantive test: if there is a possibility of adopting “an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim”, it ought to be adopted rather than merely “considered”, as would have been required under a procedural test. The way in which the general principle is applied to the facts of the case is however procedural in nature, the Court emphasizing that a viable alternative had not been considered by the domestic authorities and that no reasons were provided for the failure to adopt such LRM.
The general principle indicating a substantive test is criticized by Judge Lemmens in his concurring opinion. He considered that, taken literally, the general principle implies that “where various alternatives are open to the competent authorities, they can adopt only one of them, namely the least restrictive one.” Whilst acknowledging that this view is supported in the case law by inter alia Mouvemen Raëlien Suisse v. Switzerland and Nada v. Switzerland, he considered that these cases disregard the fact that domestic authorities “must […] in principle be left a choice between different ways and means” of meeting their obligations under the Convention. He argued that:
“To suggest that in a given situation only one option, namely the least restrictive one, is valid, without accepting that other, more restrictive options might be equally compatible with the Convention, amounts to disregarding the national authorities’ margin of appreciation.”
Lemmens however did not argue that the LRM test must be rejected altogether. Yet, he did reject the decisive character of a substantive LRM test, holding that “the failure to adopt a less restrictive measure is an element, among others, that may lead to the conclusion that the measure actually adopted was not ‘necessary’.” The same however does not necessarily seem to hold true for the procedural LRM test, as Lemmens concluded that he would also have found a violation on the following grounds:
“I agree with the majority that these are measures so egregious that they could not be taken without due consideration of the possibility of alternative measures. The fact that the authorities did not consider any alternative to the measures adopted is sufficient for me to conclude that in the given circumstances the State overstepped its margin of appreciation and that, accordingly, there has been a violation of Article 8.”
It must be noted that Lemmens seemed to link the decisive character of the procedural LRM test to the “egregious” character of the measures and to the circumstances of the case, suggesting that it may not apply to less serious interferences or other contexts.
Demonstrating on the road to the airport
A second case is United Civil Aviation Trade Union and Csorba v. Hungary. This case concerned the refusal by the police to allow a demonstration of a trade union to protest against planned salary cuts for airport employees to take place on the road leading to Budapest airport. Around 50 to 100 persons would participate in the event and they would only occupy the part of the road not used for traffic and would hand out flyers to car passengers. The refusal was based on the grounds that the demonstration would endanger traffic, would breach the traffic code and would render the airport inaccessible. The Court found a violation of Article 11, mainly on the ground that
“in the present case it was the authorities’ duty to reflect on possible alternative solutions and propose other arrangements to the organisers (see Primov and Others, cited above, § 131). The domestic authorities nonetheless did not embark on an assessment of whether the employees of the airport had at their disposal alternative means of protecting their interest. Instead of considering measures which could have allowed the assembly to proceed in a manner that did not cause undue disturbance to road traffic in the proximity of the airport, the authorities imposed a ban on it. They resorted to the most radical measure of denying the applicants the possibility of exercising their right to freedom of assembly.”
The Court here clearly applied a procedural version of the LRM test. It moreover seemingly applied the LRM test in a decisive manner, rather than as merely one of the elements to be considered in the context of the fair balance test.
The majority’s approach was however criticized in the joint partly dissenting opinion of Judges Yudkivska, Ranzoni and Ravarani. The dissenting judges raised “the question whether such a positive obligation actually exists in the Court’s case-law under Article 11 of the Convention.” They argued that such a LRM test cannot be deduced from Primov and Others v. Russia, to which the majority referred, as
“in that case the Court applied such a requirement in the circumstances of ‘the present case’, meaning that the positive obligation depends on the factual situation of each specific case.”
This of course raises the question as to how, in the dissenters’ view, the Court ought to determine whether the context of a specific case calls for a binding LRM test or not.
In addition to this critique on the appropriateness of a LRM test, the dissenters also in any event disagreed with the application of the test by the majority, as in their view “in the instant case the Hungarian authorities did actually suggest that the demonstration be held at another location […] and thereby fulfilled the said requirement.” This indicates that the procedural LRM test may give rise to practical problems in its application. The reason for these practical problems probably relates to the fact that procedural proportionality tests in general are rarely purely procedural in character. Such tests are typically designed under the assumption that they are likely to contribute to better substantive outcomes and are applied in a manner that serves this purpose. The Court would even abdicate its responsibility as ultimate guarantor of human rights in Europe if it would allow domestic authorities to get away with simply formally considering the proportionality of a human rights restriction, without reviewing the “quality” of this assessment. In order to do the latter, the Court inevitably has to determine whether the domestic authorities have undertaken a serious proportionality assessment in which due weight was given to the importance of the right concerned and this is where substantive considerations come in.
In the present case, different takes on the substance of the case probably explain the disagreement between majority and dissenters concerning the question whether the domestic authorities had properly assessed the possibility of adopting LRMs. This points to a fundamental problem affecting procedural proportionality tests in general and procedural LRM tests in particular: if they are applied in an overly procedural manner, they may lead the Court to abdicate its responsibility, whereas if they are applied in a manner that is overly infused by substantive considerations, the procedural character of the test may simply boil down to a rhetorical device to pay lip-service to the principle of subsidiarity. The challenge for the Court is to make procedural proportionality tests work without falling into either extreme.
A final note
In our article, Eva Brems and I concluded that “while there clearly is something moving in the Court’s approach to LRM reasoning, this is not as yet based on a clear judicial policy.” The debate among the judges in the cases discussed shows that the Court in the meantime still has not really made up its mind on questions such as whether the LRM should be procedural or substantive in nature and on whether it should be a decisive test and if so, under which circumstances, or whether it should rather simply be one of the elements in the overall proportionality assessment. Taking into account the backlash against the Court, it may not be surprising that the Mouvement Raëlien Suisse and Nada judgments have not spurred a genuine LRM revolution, as the LRM test is a quite robust manner of conducting proportionality review. Against the background of a broader move towards subsidiarity in the Court’s case law, if the Court wants to pitch the LRM test it may make most sense to do so in its procedural version (also see the recent Article 1 Protocol 1 case of Zelenchuk and Tsytsyura v. Ukraine). However, as explained above, also a procedural version raises a myriad of questions on how to make the LRM test work. As six years have passed since Mouvement Raëlien Suisse and Nada, it may be an appropriate moment for the Grand Chamber to pick up this challenge again.