Moving Away from Open Judicial Balancing Review
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Published:2023-07-21
Issue:2
Volume:22
Page:365-383
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ISSN:1569-1853
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Container-title:The Law & Practice of International Courts and Tribunals
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language:
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Short-container-title:Law Pract. Int. Courts Trib.
Affiliation:
1. Professor of Fundamental Rights Law, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University Utrecht The Netherlands
Abstract
Abstract
The Covid-19 pandemic truly has been called a global crisis. To fight the spread of the virus, many States have introduced measures that seriously restrict or affect fundamental rights, ranging from procedural rights to the freedom of movement and the right to personal autonomy. In Europe, it is to be expected that many cases concerning such rights infringements eventually will come before the European Court of Human Rights (ECtHR). This contribution aims to give an insight into how the Court will likely give shape to its proportionality test in such cases. It thereby predicts that open balancing review – for which the ECtHR is famous – will play a much less important role than methods of reasoning by analogy and procedural review.
Subject
Law,Political Science and International Relations,Sociology and Political Science