Examining the Fair Balance Principle

The statement calls for an examining of the principle of fair balance. In doing so, the writer will consider a critical analysis of the principle through its application across a range of rights and freedoms guaranteed by the European Convention on Human Rights.

To this end, the paper has been divided into three parts. The first will analyse the origins of the principle briefly, Second part will critically approach its application /function to understand the logic behind how the Court utilises the balancing process. Finally, the paper draws the discussion to a conclusion by summarising the main points and commenting on the accuracy of the statement.

Fair Balance Principle

The doctrine of fair balance principle is ubiquitous in case-law of the European Court of Human Rights (the Court) . Indeed, ‘inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’. The concept have been observed by most esteemed academics as controversial and yet, explicitly endorsed by the Court . The principle is obscure and amenable to varying factors such as margin of appreciation /proportionality . The rationale of the principle through the medium of the European Convention on Human Rights, is to provide effective protection of fundamental human rights and offer to States considerable possibilities for regulating the exercise of these rights. The Convention therefore, implies a just balance between the protection of the general interest of the Community and the respect due to fundamental human rights while attaching particular importance to the latter. Thus, putting the honors to member States to achieve an appropriate equilibrium in safeguarding the well-being of their populations whilst protecting the fundamental rights of individuals against a background of social change. In Sporrong and Lönnroth v Sweden [1] ; applicant landowners subject to zonal expropriation permits contended interference with their rights. The Court held for purposes of Article 1, Protocol 1 [2] , it was under an obligation to determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

Following Sporrrong, it’s accurate in the statement that the search for this balance is inherent in the whole of the Convention and confirmed in the structure of Article 1. Full weight must be given both to the interests of the individual and to the public interest. Accordingly, the Court apprehended the legislature and finds it natural that, in such situation States should enjoy a wide margin of appreciation. Nevertheless, the Court did not fail to exercise its power of review and must determine whether the requisite balance was maintained in a manner consonant with the applicants ‘right to ‘the peaceful enjoyment of their possessions’, within the meaning of the first sentence of Article 1.1 [3]

The Court applied John and Others v Germany [4] , following Sporrong and Lönnroth [5] , confirmed deprivation of a person’s possessions under the second sentence of P1-1 was subject to the fair balance principle. A critical analysis of this assessment required that ‘there must be a reasonable fair balance test in place and payment of compensation by the relevant State was a further key component in satisfying the fair balance principle. In this case the court argued taking of property without payment of an amount reasonably related to its value constituted a disproportionate interference but justifiable under Article 1 of Protocol 1 only in exceptional circumstances… and concluded that in the unique context of German reunification, lack of any compensation did not upset the ‘fair balance’ which has to be struck between the protection of property and the requirements of the general interest.

By contrast, in Slivenko v Latvia [6] ; mother and daughter complained of breaches of their rights under Article 8 [7] . The respondent contended that its action was justified under Article 8(2) as necessary to protect Latvian national security. Indeed, held a measure interfering with rights guaranteed by Article 8(1) can be regarded as being ‘necessary in a democratic society’ if it’s a responds to a pressing social need and if means employed are proportionate to the aims pursued. However, it was the Court’s responsibility in ascertaining whether the impugned measures struck a fair balance between the relevant interests that is the individual’s rights protected by the Convention versus the community’s interests. The court concluded that the removal of the applicants did not strike a fair balance because they had been integrated into Latvian society and did not pose a real danger to Latvian security.

Articles Subject to Fair Balance Principle

Article 2

The Court has applied the fair balance principle when considering the right to life of

Fetuses in Boso v Italy [8] , applicant contended, Italian legislation violated Article 2 [9] by permitting his wife to have an abortion against his wishes. The Court concluded that the relevant legislation and d its provisions strike a fair balance between, the protection of the foetus and, the woman’s interests. Under the circumstances, the Court did not find that the respondent State had gone beyond its discretion in such a sensitive area and ruled the applicant’s complaint was manifestly ill-founded.

Subsequently, in Vo v France [10] , citing the fair balance extract from Boso [11] ,

The court stated, it follows from this recapitulation of the case-law that in the circumstances examined to date by the Convention institutions that is, in the various laws on abortion – the unborn child is not regarded as a ‘person’ directly protected by Article 2 [12] of the Convention and that if the unborn do have a ‘right’ to ‘life’, it is implicitly limited by the mother’s rights and interests.As there was still no consensus amongst the member States regarding the status of the embryo/foetus, the Grand Chamber concluded that it was neither desirable or possible to rule in the abstract whether an unborn child was a person for the purposes of Article 2. However, it was determined that French civil law provided sufficient protection for the applicant’s deceased six-month-old foetus in respect of the medical negligence that had necessitated the unwanted termination of the applicant’s pregnancy. Therefore, no breach of Article 2 had occurred.

From the discussion it can be confirmed that even the most basic of all Convention rights can be subject to a fair balance analysis. Given the conflict between the interests of a pregnant woman and her unborn foetus/child. The Court assessed whether domestic legislation authorising abortions has achieved a fair balance between those interests. Indeed these cases affirmed the accuracy in statement in issue.

Article 3

Obligations under Article 3 are absolute and non-derogable even in the event of war or a public emergency threatening the life of the nation. Application of the principle to the article saw controversy amongst member States and the judges . Strasbourg refused to permit a member State to balance the alleged threat to its national security against the risks ( Chahal v United Kingdom (UK) [13] . The Court held article 3 enshrines one of the most fundamental values of a democratic society…, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct and no derogation from it is permissible under Article 15 [14] .

The Court reconsidered Chahal [15] approach in Saadi v Italy [16] . Tunisian applicant convicted in Italy of criminal conspiracy and was to be deported. The Court repeatedly held, no derogation and Saadi reaffirmed the principle stated in Chahal [17] . So despite the increased risks that member States face from international terrorism the Court has continued its predecessor’s refusal to countenance the application of a balancing test to the deportation/extradition of suspected terrorists and their associates.

However, in a different context, deportations of foreigners suffering from serious illnesses the Court have applied the fair balance principle. In D. v UK [18] the Court ruled it would amount to

inhuman treatment for the UK to deport a person in the terminal stages of acquired immune

deficiency syndrome (AIDS), where he had no-one to care for him and

expensive drugs were not available to him. The decision was reconsidered in N. v United Kingdom [19] , a Ugandan national who recovered after treatment and challenged deportation on medical grounds. The court held here the applicant was not in the terminal stages of her illness as D [20] . had been, the Convention is essentially directed at the protection of civil and political rights (Airey v. Ireland) [21] . Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Soering

v. the United Kingdom [22] ; advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 [23] in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 [24] does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.

It was concluded the applicant was not critically ill at the time and her case

could be distinguished from D [25] . and there would be no breach of Article 3 [26] if she was to be deported back to Uganda.

Even though criticisms were made in legal writings, the balancing exercise in the context of Article 3 [27] was clearly rejected by the Court in (Saadi v. Italy [28] ) confirming (Chahal v. the United Kingdom, the Grand Chamber in N. was willing to apply the fair balance principle to Article 3 due to the substance of the applicant’s claim which in effect was to be allowed to remain in the UK to receive ongoing medical care, as it involved difficult issues of public expenditure.

Article 5

The Court expressed divergent views on the application of the fair balance here.

In A. and Others v United Kingdom, applicant detained under Anti-Terrorism laws

, but; (following Chahal) could not be deported . The Court did not accept the Government’s argument that Article 5 . 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.49

Whilst not explicitly referring to a fair balance the Grand Chamber’s language replicates the essence of the principle. The Court in agreement with House of Lord50 ruled that derogation measures taken against the applicants were disproportionate, as they only applied to suspected terrorists who were foreign nationals, consequently Article 5(1) had been breached in respect of those applicants who had not voluntarily left the UK. Yet, in Ocalan v Turkey 51 the Grand Chamber Court stated that inherent in the whole of the Convention is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The court went on to determine that the highly controversial arrest of the applicant, leader of a terrorist organisation, by Turkish officials at Nairobi airport did not violate Article 5(1).

Although the respondent States’ conduct was of different forms in these cases it seems difficult to reconcile the blanket rejection of the application of the elements of the fair balance principle to Article 5(1), including its use to interpret the scope of the enumerated exceptions, In A. and Others with its express invocation by the Grand Chamber in Ocalan plenary judgment concerning Article 5 . In Brogan and Others v United Kingdom 53 acknowledged the need for a ‘proper balance’ in the response to terrorism by member States.

The Court, having taken notice of the growth of terrorism in modern society, recognised the need, inherent in the Convention system, for a proper balance between the defence of the

institutions of democracy in the common interest and the protection of individual rights…54 analysing whether the applicants had been brought before a judge promptly, as required by Article 5(3), it was concluded none of the applicants had been released promptly.

Article 6

In Nikitin vRussia, request for supervisory proceedings inspection was dismissed by the court stating that proceedings were the fault of the prosecution. The applicant, contended a breach of Article 6(1). The Court reasoned that, Article 4(2) of Protocol No. 7 expressly permitted reopening of a case in defined circumstances, where evidence of new facts has

emerged, and to allow the reopening of cases where the Court had found a breach of Article 6 was not per se incompatible with Article . Although, certain circumstances may reveal, that the manner in which it was used impaired the essence of a fair trial. Therefore , the Court was under an obligation to ascertain that a supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system . The court concluded that the Presidium had not failed ‘to strike a fair balance between the interests of the applicant and the need to ensure the proper administration of justice’.58It did so

by utilising the fair balance principle to check that acquitted defendants did not suffer undue burdens whilst criminal justice systems maintained the opportunity to exceptionally reopen proceedings in order to correct injustices.

Article 8

The principle has been utilised extensively by the Court in Article 8

across a diverse range of situations. In Christine Goodwin v United Kingdom, 59 it was held that the respondent Government failed to recognise the right protected under the Convention and concluded that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant due to a failure to respect her right to private life in breach of Article 8 .60

By contrast, in Hatton and Others v United Kingdom. 61 The court, found no breach of Article 8 and concluded there was no failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and conflicting interests of others and of the community as a whole, nor did it find that there have been

fundamental procedural flaws in the preparation of regulations on limitations for night

flights.62A variety of Article 8 cases invoking the fair balance principle given the breadth of the rights protected by this provision.63 Furthermore, seen in Slivenko , 64 the structure of Article 8 enables States to argue interferences with Article 8(1) rights are justified for legitimate community interests under Article 8(2) and this encourages the Court to apply the fair balance principle to assess the disputed equilibriums reached by States.

Article 9

The principle applied to evaluate whether public authorities have unjustifiably intervened in the internal disputes of a religious organisation. The complex background to Holy Synod of the BulgarianOrthodox Church (Metropolitan Inokentiy) v Bulgaria, 65 The applicants brought an action alleging breach of Article 9 .66The Court ruled that the extensive intervention by the government in the affairs of the Church with the objective of forcing the membership to support the leadership endorsed by the authorities was disproportionate and violated the applicants’ rights under Article 9.

Article 10

the principle was applied in Article10 in Vogt v Germany, applicant school teacher dismissed. The Court held although it is legitimate for a State to impose on civil servants, on account of their status, civil servants are individuals and, as such, qualify for protection under article 10. It therefore, falls to the Court, having regard to the circumstances of each case, to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10 para. 2. In carrying out this review, the Court will bear in mind that whenever civil servants’ right to freedom of expression is in issue the ‘duties and responsibilities’ referred to in Article 10 para. 2 assume a special significance, which justifies leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference is proportionate to the above aim.69The court concluded that the dismissal of the applicant was a disproportionate measure given her good teaching record.

In Appleby and Others v United Kingdom, 70 the Court considered the applicants’ complaint whether the respondent State was in breach of its positive obligation to protect freedom of expression. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. The scope of this obligation will inevitably vary, having regard to the diversity of situations .In the case the Court held the UK had not failed to protect the applicants’ freedom of expression.

Article 11

In Chassagnou and Others v France, 72 the court had regard to the fair balance principle in assessment of the applicants’ negative right to freedom of association under Article 11 had been breached. French legislation obliged the owners of rural land to join local hunters’ associations and permit members to hunt on their land. The applicants had objections to hunting, but the government claimed legislation could be justified under Article 11(2) as being necessary to enable wide public participation in hunting. The court rejected claim to compel a person by law to join an association such that it is fundamentally contrary to his own convictions and to oblige him, on account of his membership of that association, to transfer his rights over the land he owns so that the association in question can attain objectives of which he disapproves, goes beyond what is necessary to ensure that a fair balance is struck between conflicting interests and cannot be considered proportionate to the aim pursued and concluded the applicants had suffered a breach under Article 11.

Article 14

Following Abdulaziz, Cabales and Balkandali v United Kingdom, the court ruled that Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, G.M.B. and K.M. v. Switzerland (dec.), 75the Court determined that the respondent State had not provided a satisfactory justification as to why men were much more likely to be obliged to undertake jury service than women. Hence, the male applicant had suffered a breach of Article 14 4(3)(d) .

Additionally, previous analysis of the foundations of the fair balance principle has disclosed the Court’s regular utilisation of the principle when determining if there has been an infringement of the protection of property (P1-1).76 Overall the analysis indicates that court has indeed applied the fair balance principle across the vast majority of rights safeguarded by the Convention, thereby confirming the accuracy of its Soering mantra . However, where it has not been applied for example in respect of Article 12, this may be due to limited amount of case under those articles. Perhaps it is to be expected that the Court’s utilisation of the principle has been most divisive in respect of the unqualified Article 3. However, N. v United Kingdom 78 , where the complaint has strong socio-economic overtones, the fair balance principle can be applied even in respect of the most absolute right guaranteed by the Convention.79 Conversely, where Articles expressly include limitation clauses authorising States to interfere with protected rights in order to promote community interests the Court has frequently resorted to the fair balance principle.80

Fair Balance Principle Functions

Fair balance principle is used by the court as a basic tool in balancing between the rights of individual and interests of the public….

Harris and others have expressed the view that in respect of the Court’s assessment of whether a fair balance has been attained, the achievement of such a balance necessarily requires an approach based, inter alia, upon considerations of proportionality’.

Second function is fair balance provides a mechanism enabling the Court to determine if a respondent State is subject to an implied positive obligation arising under the Convention.87 For example in Verein Gegen Tierfabriken Schweiz v Switzerland (No. 2). 88Strasbourg ruled that the continued ban on applicant’s advertisements by Switzerland

amounted to a violation of Article 10 and regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual.91

The court determined, advertisement was directed at matters of public interest

(consumer health and animal/environmental protection), the Federal Court’s rejection of the

Applicant’s domestic legal challenge had been unduly formalistic and Article 10

protected inter alia offensive and shocking ideas so the State’s argument that consumers and meat traders might find the advertisement unpleasant did not justify the ban on its transmission.

Consequently, Switzerland had failed to comply with its positive obligation under Article 10. Verein clearly demonstrated the Court weighing up the applicant’s interests against those of the community, as submitted by the respondent State, when determining if the fair balance principle required the latter to undertake positive measures to fulfill the former’s Convention rights. It is very rare for the Court to uphold a complaint alleging a breach of a positive obligation under Article 10.92 However, given the continued refusal of the Swiss authorities to; permit the broadcasting of the advertisement, despite the Court’s judgment in the first case, the Grand Chamber evidently believed that this was a situation which required affirmative action by the respondent State.

Competing Interests

From the paper’s analysis the court has taken cognisance of diverse range of competing interests in applying the fair balance principle. For instance, in Boso 93 the Court had regard to the protection of the foetus and the mother’s physical and mental health when evaluating Italian legislation. The interest of all nations that suspected offenders should be brought to justice balanced against the liberty of such fugitives was at the heart of the Court’s analysis in Ocalan. 94 The liberty of suspected terrorists was also weighed against the protection of democratic institutions in Brogan v United Kingdom. 95 Another aspect of the criminal justice system was subject to the fair balance analysis in Nikitin 96 where the Court assessed the general interest of, exceptionally, allowing the re-opening of criminal trials against the opposition of the acquitted defendant. The needs of users and providers of night-time aircraft flights together with

the related economic benefits to the whole of the country were balanced against the consequent disturbance to persons affected by the noise of the aeroplanes in Hatton. 97 The objective of public authorities securing ‘legality’ in the leadership and internal affairs of a religious organisation compared with the rights of a break-away group of believers were at the heart of the Court’s analysis in Holy Synod. 98 The conflict between an individual civil servant’s freedom of political expression and the interests of a democratic State in ensuring that its public service promotes the community interests specified in Article 10(2) (including safeguarding national security) were subjected to the fair balance principle in Vogt. 99

From these examples it’s evident that the broad spectrum of competing interests that

the Court has had to balance are a product of both the breadth of the rights secured under the

Convention and the heterogeneous factual contexts in which applicants contend their rights have been infringed.

Factors Considered by the Court in utilising the Fair Balance Principle

Alongside the interests of the applicant and the community, the Court has also considered other factors when utilising the fair balance principle. In Broniowski v Poland 100 the applicant complained suffered a violation of Article 1 of Protocol No. 1

The court acknowledged number of individuals in similar position, substantial value of claims, certainly as factors that must be taken into account in ascertaining whether the requisite ‘fair balance’ was struck.102 Additionally, the court recognised that the respondent State was seeking to manage the country’s reforms in a post-communist society and concluded a disproportionate burden which could not be justified in terms of the general community interest. Hence, a fair balance had not been achieved by the domestic legal order. In the circumstances the Court has been willing to consider any negative aspects of the conduct of the applicant or the respondent State when applying the fair balance principle. For example, in Beyeler v Italy 104 the applicant contended a violation of Article 1 of Protocol No. 1. Applying the fair balance principle the Grand Chamber held in the context of the general rule enunciated in the first sentence of the first paragraph of Article 1,ascertaining whether such a balance existed requires an overall examination of the various interests in issue, which may call for an analysis not only of the compensation terms – if the situation is akin to the taking of property (see, Lithgow and Others [v UK]; but also, as in the instant case, of the conduct of the parties to the dispute, including the means employed by the State and their implementation.105The Grand Chamber ruled that the applicant had deliberately not informed the authorities of his purchase for six years, in order to avoid the possibility of a statutory purchase by them. Consequently, the Court accepted that there was ‘some weight’ to the respondent State’s claim that Beyeler had ‘not acted openly and honestly’.106 However, the Grand Chamber was also critical of the State’s behaviour in not seeking to purchase the painting for five years and the Court considers that the enrichment is incompatible with the requirement of a ‘fair balance’ and found a violation a