Abstract
As a four-step exam, proportionality has become a well-known technique of rights adjudication. Moreover, we claim, among others, that as a framework for argumentation, and through modulation, it can be used in a manner that enables courts to compensate structural inequality patterns, allowing the voices and claims of people in situations of vulnerability. In order to corroborate our thesis, we contrast the application of proportionality by majority and minority votes in a case ruled by the ECtHR about the right of a woman to choose her residence. While both draw upon the exam, the first one opts for a general approach rendering invisible the intersectional layers of discrimination (poverty and gender) that undermines the applicant standing. On the contrary, the dissenting opinion opts for a thorough test (in concreto) able to account for the poverty and gender dimensions of the case. In doing so, we show the potentiality of the test of proportionality in concreto that allows questioning already established categories by empowering marginalized voices, and lays a clear path on how to deal with that process.
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Notes
- 1.
Barak (2012), p. 743, among many others.
- 2.
Williams (2009) among many others.
- 3.
This article presupposes structural inequality patterns (anchored on gender, class, ethnicity, age, disability, migration, etc.) which sustain and deepen social privileges and therefore oppressions. At the same time, these patterns are naturalized since they pervade social reproduction. Regarding this our approach aims to complement democracy as the institutionalized argumentation with the need to examine ‘argumentative credentials’ (participatory parity). The task is to compensate (with transformative vocation) the segregative dynamics of political systems through independent revision devices. See Aldao et al. (2017), pp. 83–96. Aldao (2010), arguing the potential of the proportionality exam to set forth in the judiciary the perspective of collectives structurally neglected by public opinion and representatives.
- 4.
Lambert and Scribner (2018), pp. 2–21.
- 5.
Even feminist strategies had been used in other arenas concernings human rights advocacy. In an interview in Toledo (Spain) in 2019 a Human Rights Defender from Honduras sustained that “(...) we always resort to creativity, since denial seems to be the default answer. Courts are adverse but we submit our claims nonetheless. The system spreads hopelessness in order to reduce contention. Hopelessness is intentional, political. That I learnt from feminists.”
- 6.
Lambert and Scribner (2018), pp. 2–21.
- 7.
Williams (2009), among others.
- 8.
Undurraga (2019), pp. 41–51, sustaining that the use of public health evidence argument showing that criminalisation of abortion does not result in lower abortion rates, is changing the way judges are confronting constitutional challenges to abortion regulations, and declaring criminalisation regimes unconstitutional; and concluding that “this new legal narrative has been developed during the last decades by a series of court decisions in Europe and Latin America, and may prove useful for legal advocacy in some countries in Africa. The narrative combines the use of an analytical framework called the proportionality principle with an interpretation of constitutional rights that draws from gender-sensitive international human rights standards and factual evidence about the effects of criminalisation on women’s lives and health”. Emphasis added.
- 9.
Samuels (2013), pp. 39–60, basing on theories of deliberative democracy to argue that “the proportionality test can be applied in a manner that facilitates a more “interactive universalism”, allows for greater participation in decision-making and enables the courts to be more attentive to the disadvantaged”, showing the contact points between proportionality and feminist theory, and highlighting its contribution to “developing and reconstituting a more relational and contextual concept of rights”.
- 10.
Aldao (2010).
- 11.
Undurraga (2019).
- 12.
ECtHR, Garib vs. Países Bajos (GC), 2017.
- 13.
- 14.
Article No. 2 of the Additional Protocol No. 4, ECHR, and article No. 12, ICCPR.
- 15.
ECtHR, Garib vs. the Netherlands, judgement issued on February the 23rd, 2016, N.° 43494/09. Majority opinion conformed by judges Helena Jäderblom, George Nicolaou, Johannes Silvis, Branko Lubarda and Pere Pastor Vilanova, and dissenting opinion, conformed by judges López Guerra and Helen Keller.
- 16.
On the ECtHR decisions concerning poverty see Lavrysen (2015), pp. 293–325.
- 17.
ECtHR (GC), Garib vs. the Netherlands, application no. 43494/09) judgement issued on November the 6th, 2017. Majority was formed by judges Guido Raimondi, Angelika Nußberger, Linos-Alexandre Sicilianos, Mirjana Lazarova Trajkovska, Işıl Karakaş, Julia Laffranque, Iulia Motoc, Jon Fridrik Kjølbro, Georges Ravarani, Gabriele Kucsko-Stadlmayer, Tim Eicke and Egbert Myjer (ad hoc judge); joint dissenting opinion by judges Nona Tsotsoria and Vincent A. De Gaetano and dissenting opinion by judges Paulo Pinto de Albuquerque with Faris Vehabović and Egidijus Kūris.
- 18.
- 19.
It could be argued that this case is remote and isolated. Nevertheless, the background in which this judgement was issued is the context in which nowadays the effective exercise of human rights by many women and the LGTBQI+ communities is at stake. The fact that children, women, migrants, elderly people and displaced people are thrown into homelessness is a result of concrete political and economic decisions as regards gentrification processes in urban zones, agro-industrial zones, zones in which megaprojects have been developed and mountainous and rural zones of natural resources extraction, where decisions are taken without analyzing from the start the disproportionate impact and violations to the human rights of populations in situation of vulnerability [s. for example, IAComHR (2016). In this sense, the judgement is more than just a case.
- 20.
- 21.
IAComHR (2017).
- 22.
Ferstman and Fagan (2020), p. 147, sustaining that vulnerability arises from intersecting structural inequalities and is a cross-cutting issue.
- 23.
David and Ganty (2017).
- 24.
Ibid.
- 25.
ECtHR, Garib vs. the Netherlands (GC), 2017, majority vote, para 142.
- 26.
In other words, a goal that is not constitutionally forbidden in definitive terms. The question on the “legitimacy” of either the means or the end pursued by the state harbors different issues. However, only in “clear cases”, and when tackled as a preliminary issue to the proportionality exam it manages to acquire the status of an exam on the limit to rights limitations. In these cases, a ruling can be achieved without ponderation. The outcome arises from the application of a constitutional rule which admits subsumption of both the facts and the issue of the case. Certainly, this outcome may be reconstructed through ponderation, however, in these cases the proportionality exam would only be explanatory or critical in its nature. In order to determinate whether the provision forbids restrictions a careful interpretation of the norm is required. If this is the case the minimum core standard could be construed as a rule.
- 27.
Gerards (2013), pp. 466–490, sustaining that the ECtHR efforts in “developing standards such as that of the existence of a “pressing social need” and of “relevant and sufficient” reasons. However, these standards appear to be rather vague and the Court’s case law on the test of “necessity” lacks transparence. For that reason, this article proposes the introduction of the more classic three-part test of proportionality in the Court’s case law. The article focuses on the use the Court might make of two particular elements of this test, that is, the test of suitability and the least-restrictive-means test. If applied correctly, the systematic application of these tests can contribute to the clarity and persuasiveness of the Court’s reasoning.”
- 28.
In this work we assume that the test of necessity in a democratic society presupposes the proportionality test to be an analytical framework. This exceeds the scope of the present work, but it is worth exploring through further research.
- 29.
However a thorough reading of para 143 and 144 shows that the majority skirts the equality issue and then denies it. “The applicant does not deny that a need existed for public authority to act: the Court understands the applicant’s admission that the legislation in issue is not “manifestly without reasonable foundation” in this sense. Rather, her criticism concerns the legislative choices made, which in her submission place an unfair burden on those whose only source of income is social-security benefits.” This means that the ECtHR is implicitly acknowledging inequality while previously it had excluded the issue. Moreover, in the 144 paragraph the ECtHR seems to think that it is not a subject of the restriction: “The Court observes that the system of the Inner City Problems (Special Measures) Act does not deprive any person of housing or force any person to leave their dwelling. Moreover, the measure under the Inner City Problems (Special Measures) Act affects only relatively new settlers: residents of the Rotterdam Metropolitan Region of at least six years’ standing are eligible for a housing permit whatever their source of income. In the circumstances, this waiting time would not appear to be excessive.”
- 30.
ECtHR, Garib vs. the Netherlands (GC), 2017, dissenting opinion judges Pinto de Albuquerque and Vehabovic, para 7 and 8.
- 31.
ECtHR, Garib vs. the Netherlands (GC), 2017, dissenting opinion Judges Pinto de Albuquerque and Vehabovic, para 7 and 8.
- 32.
ECtHR, Garib vs. the Netherlands (Court), 2016, majority vote, para 112, 113.
- 33.
ECtHR, Garib vs. the Netherlands (C), 2016 para 11, 14: “… since the measure is linked to source of income and is thus implicitly connected to the social origin and gender of the persons concerned, the applicable test is the necessity test provided for under Article 14 of the Convention.”
- 34.
ECtHR, Garib vs. the Netherlands (GC), para 136 and 137.
- 35.
ECtHR, Garib vs. the Netherlands (GC), para 138. Calling upon ECtHR Animal Defenders vs. U.K. (GC), para 108, among others. See Oliver Lalana (2019), pp. 207–241, sustaining that the quality of legislative deliberations should be a relevant argument within the judicial review of statutes, and proposing a methodology to analyze the deliberations and discussing with relevant and current ECtHR’s margin of appreciation doctrine.
- 36.
ECtHR, Garib vs. the Netherlands (GC), 2017 para 139.
- 37.
See Animals Defenders International vs. U.K. and critical review of the judgement in Aldao (2019), challenging the margin of appreciation doctrine that justifies it as a way to overcome plurality issues inside regional human rights systems, focusing on the consequences of an enhanced margin of appreciation in terms of the ability of regional human rights systems to deal with deeply entrenched inequality issues. Føllesdal (2017), pp. 359–371, arguing for “exporting” the margin of appreciation to the inter-American context; however, warning that more precision and refinement of the doctrine is required, proposing certain limits to the doctrine, “… to grant a margin for some rights of minorities—which majorities are likely to disregard; or the rights necessary for democratic decision-making to be responsive to citizens’ interests… .”; Burgorgue-Larsen (2017), arguing that the correct application of the margin of appreciation by the ECHR is still being discussed, is still technically imperfect and a risk of judicial arbitrariness, and therefore raising serious doubts on its transfer to other contexts, such as the “very distant … inter-American sociological context.” In this vein, Clérico (2020), pp. 57–83, sustaining the divergent argumentative profiles of the regional courts as determined by their audiences: the ECtHR, as a court concerned with the interlocutors, the States of the region, as opposed to the IACTHR as a court concerned with evaluating the (un)reasons for the restrictions on rights, beyond the (dis)pleasure of the States of the region and sustaining the openness of the IACtHR as a characteristic of her universal profile in regarding human rights argumentation.
- 38.
ECtHR, Garib vs. the Netherlands, dissenting opinion of judges Pinto de Albuquerque and Vehabovic.
- 39.
ECtHR, Garib vs. the Netherlands (GC), dissenting opinion of judges Pinto de Albuquerque and Vehabovic, para 13, calling upon Alajos Kiss vs. Hungary (2010), para 42; Peroni and Timmer (2013), pp. 1056–1085, asking whether the Court was constructing its argument from a human rights narrative that took vulnerability into account as a common characteristic of all people or if it was viewing it as something specific to certain groups; Burgorgue-Larsen (2014) and Beloff and Clérico (2016).
- 40.
This point has been raised by judges López Guerra and Keller in their dissenting opinion in the Court judgement. They stress that the majority disregarded the stablished case law that allows for the reduction of the margin of appreciation when gender discrimination is involved. See ECtHR Vrountou vs. Cyprus (2015).
- 41.
ECtHR, Garib vs. the Netherlands (GC), dissenting opinion of judges Pinto de Albuquerque and Vehabovic, para 13.
- 42.
ECtHR, Evans vs. U.K. (GC), (2007), para 77.
- 43.
ECtHR, Garib vs. the Netherlands (GC), dissenting opinion of judges Pinto de Albuquerque and Vehabovic, para 13.
- 44.
ECtHR, Garib vs. the Netherlands (GC), majority vote, para 147.
- 45.
ECtHR, Garib vs. the Netherlands (GC), majority vote, para 159.
- 46.
David and Ganty (2017) warn that the ECtHR knew about the existence of these reports: the Court would have interrogated the state on them on the January, 2017 hearing. The fact that these reports were not considered in the judgement allows the authors to speak of a manipulative use of empirical data in the case.
- 47.
ECtHR, Garib vs. the Netherlands (GC), para 149.
- 48.
This is what David and Ganty (2017) call “cherry picking”, this is, an unwarranted selectivity.
- 49.
ECtHR, Garib vs. the Netherlands (GC), para 70, 74.
- 50.
ECtHR, Garib vs. the Netherlands (GC), dissenting opinion of judges Tsoria Tsoria and Gaetano, para 7; and of judges Pinto de Albuquerque and Vehabovic, para 17.
- 51.
ECtHR, Garib vs. the Netherlands (GC), (2017), para 157.
- 52.
ECtHR, Garib vs. the Netherlands (GC), majority vote, para 87–92.
- 53.
ECtHR, Garib vs. the Netherlands (GC), dissenting opinion of judges Pinto de Albuquerque and Vehabovic, para 20.
- 54.
ECtHR, Garib vs. the Netherlands (GC), (2017), para 160.
- 55.
Ibid, para 162–164.
- 56.
Ibid, para 161.
- 57.
Ibid, para 166.
- 58.
ECtHR, Carvalho Pinto de Sousa Morais vs. Portugal, (2017), para 46 sustaining that stereotyping of a certain group in society prohibits the individualised evaluation of their capacity and needs. In this vein, the dissenting opinion of Judge Pinto de Albuquerque and Verhabovic points out in ECtHR Garib vs. the Netherlands (GC), (2017), para 30, that the regulation in question “affects de facto a specific underprivileged category on which it imposes unfavorable treatment compared to the treatment of the majority group. The precarious population groups who find themselves in this situation are thus subject to a double punishment, because they face poverty-related difficulties in combination with constant social stigmatisation. … Legislation which institutionalises such stereotypes and has considerable negative consequences for individuals cannot therefore be perceived as objectively justified for the purposes of the Convention.”
- 59.
ECtHR, Garib vs. the Netherlands (GC), dissenting opinion of judges Pinto de Albuquerque and Verhabovic, para 34–40.
- 60.
The intersectional approach enables addressing how the measure in question affected the applicant and her children in a quite specific manner due to their poverty and her gender. as developed by the dissenting opinion of judge Pinto de Albuquerque and Verhabovic, para 39. See Sosa (2017) and Góngora Mera (2020).
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Clérico, L., Aldao, M. (2021). An Argument for the Test of Proportionality in Concreto: Silenced Voices from the Margins to the Center. In: Sieckmann, JR. (eds) Proportionality, Balancing, and Rights . Law and Philosophy Library, vol 136. Springer, Cham. https://doi.org/10.1007/978-3-030-77321-2_9
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