The threefold nature of the proportionality test advanced by Barak and conflicting Economic and Social Rights: a proportionality plus test?

Author: Matteo Mastracci

The Proportionality Test, following in Barak’s footsteps, has to be intended as composed of three different and consecutive elements: proper purpose, necessity and proportionality stricto sensu. The element of proper purpose reflects a value-laden component and reflects the notion that not every purpose can justify a limitation on a constitutional right. Necessity, also known as “the less restrictive means”, requires instead that the legislator has to choose that which would least limit the human rights in question. Finally, in order to justify a limitation on a constitutional right, a proper relation should exist between the benefit gained by fulfilling the purpose and the harm caused to the constitutional right from obtaining that purpose.

However, as lucidly pointed out by Vandenhole, when the adjudicatory reasoning involves Economic and Social Rights (ESC) and, as a result, a necessary involvement of resource policies are in play, there seems to emerge a clear recourse to some sort of sub-criteria exceeding the traditional three steps scheme advanced by Barak and, amongst the many, two of them appear to be more recurrent in the judicial practice: prioritisation of vulnerable groups and core content or core obligations.

To this purpose, quite intriguing is a case brought before the European Court of Human Rights against Poland and decided by the Grand Chamber: Hutten-Czapska v. Poland.

The applicant, a French national of Polish origin owner of a house and a plot of land in Gdynia, denounced a violation of Article 1 of Protocol No. 1 of the Convention (protection of property) caused by the implementation of the laws imposing on landlords restrictions in respect of rent increases and the termination of leases. Therefore, the Court found a conflictual scenario wherein the Polish State:

“had to balance the exceptionally difficult and socially sensitive issues involved in reconciling the conflicting interests of landlords and tenants. It had, on the one hand, to secure the protection of the property rights of the former and, on the other, to respect the social rights of the latter, often vulnerable individuals”

Hutten-Czapska v. Poland

In other words, the conflicting interests at stake were, on the one side, the right to property and, on the other side, the right to housing which, inter alia, is not explicitly addressed by the European Convention on Human Rights. The Court in its reasoning recalled, with a very strong emphasis, the principle of a “fair balance” in the form of a reasonable relation of proportionality between the means employed and the aim sought to be realised according to which should be avoided a disproportionate or excessive burden suffered from the person concerned.

In any case, and even though the Court seems to have mainly relied in its conclusion on the failure to achieve a fair balance based on several complex grounds, what is more interesting in the Court reasoning is the recourse to both of the sub-criteria previously cited in supporting its final analysis; in fact, it was recalled firstly the notion of “vulnerable individuals” with regard to the right of tenants and, at the same time, to the notion of core content when the reference was shifted to the “very essence” of the applicant’s right of property.

As a result, it seems that the twofold quotation to the sub-criteria of “vulnerable individuals” and “very essence” as developed by the Court evokes, albeit indirectly, an inadequacy of the proportionality test in some cases, which at least, every once in a while, it is not a definitive panacea in solving conflicts between compelling rights.

Additionally and as a further speculative issue, in the present case, it seems to emerge a preliminary, and quite fascinating, theoretical impasse brought to the fore by Dworkin in Taking Rights Seriously: the “principle-policy” dichotomy due to the fact that the right to property and the right to housing do not arise as a conflict of rights, but rather as a tension between the right to property and consideration of social housing policy.

The Dworkinian distinction relies on the substantive ground of the justification argument, indeed, whereas “arguments of principle justify a political decision by showing that the decision respects or secures some individual or group rights”, the policy argument “justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole” which in the most of cases coincide with “an improvement in some economic, political, or social feature of the community”. In any case of a conflicting relationship principle-policy, Dworkin seems to prefer always the prevalence of the first over the second because rights ought to trump policies promoting majority interests. In fact, “we must distinguish the ‘rights’ of the majority as such, which cannot count as a justification for overruling individual rights, and the personal rights of members of a majority, which might well count”.

The Grand Chamber, even though openly emphasized the role of housing policies as a primary social need “which plays a central role in the welfare” and economic interests, in the end, favoured the election of the right to property as illegitimately restricted, which despite the absence of a sounding statement seems to be clearly inspired by the Dworkinian motto according to which “rights ought to trump policies”, always or almost.

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