‘Don't Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights

Human Rights Law Review 15 (1), 2015, 1-30

29 Pages Posted: 29 Dec 2016  

Eva Brems

Ghent University-Universiteit Gent

Laurens Lavrysen

Ghent University-Universiteit Gent

Date Written: january 2015

Abstract

This article focuses on the relevance of 'less restrictive means' (LRM) analysis for the application of the proportionality test in the context of non-absolute rights under the European Convention on Human Rights (ECHR). Instead of applying a more structured German-tradition-like proportionality test, including a separate LRM test, the Court has traditionally resorted to a loose balancing exercise. Recently, however, the Court seems to be more and more willing to integrate explicit LRM reasoning in its proportionality analysis. This LRM ‘revolution’ is discussed in this article. First, the article provides a theoretical discussion of the LRM test as part of the sophisticated German-tradition-like proportionality test, as well as of the possible advantages or drawbacks of such an approach.

Keywords: European Court of Human Rights, proportionality

Suggested Citation

Brems, Eva and Lavrysen, Laurens, ‘Don't Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights (january 2015). Human Rights Law Review 15 (1), 2015, 1-30. Available at SSRN: https://ssrn.com/abstract=2891307

Eva Brems (Contact Author)

Ghent University-Universiteit Gent ( email )

Coupure Links 653
Gent, 9000
Belgium

Laurens Lavrysen

Ghent University-Universiteit Gent ( email )

Coupure Links 653
Gent, 9000
Belgium

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