The European Court of Human Rights’ ('ECtHR') use of proportionality and balancing is inconsistent and does not provide clear guidelines from which policies can be drafted such that those policies can strike a fair balance between individual rights and public interests while not impairing the essence of the rights at stake. While ad hoc and unprincipled balancing may be justified on a theoretical level, on a practical level, a policymaker seeking to understand which rights’ interferences constitute clear violations under the European Convention on Human Rights ('ECHR') is left puzzled. This article adds clarity to this puzzle by breaking down several aspects of ECHR fair trial rights into clear cut ‘red lines’, or minimum thresholds of protection, which when overstepped, constitute a violation of the right. Identifying these red lines is meant to assist legislators and policymakers to draft laws and policies that conform to their states’ obligations under the ECHR, yet also to instruct policymakers outside the Council of Europe member states. Due its unique characteristics, as well as the volume and breadth of its case law, the ECtHR’s jurisprudence can be a lodestone for the consolidation of an international human rights community based on shared values. The article's unique contribution is the assessment of ECtHR jurisprudence not only on its own merits, but also in comparison to the jurisprudence of other international courts.
Published in: Israel Law Review, 50(2) 2017 pp 177-209