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Principiul proporţionalităţii în sistemul Convenţiei Europene a Drepturilor Omului


Author: Morărescu Adrian
Degree:doctor of law
Speciality: 12.00.10 - International Public Law
Year:2015
Scientific adviser: Diana Sîrcu-Scobioala
doctor habilitat, professor, Moldova State University
Institution: Moldova State University

Status

The thesis was presented on the 20 August, 2015
Approved by NCAA on the 7 October, 2015

Abstract

Adobe PDF document – 0.47 Mb / in romanian

Thesis

CZU 341.231.14 (043.2)

Adobe PDF document 1.63 Mb / in romanian
169 pages

Summary

Thesis structure: introduction, 4 chapters, general conclusions and recommendations, bibliography which includes 228 sources, basic text of 147 pages.

Key words: proportionality, interference, human rights, fundamental freedoms, qualified rights, triple test of interference, European Convention on Human Rights (ECHR), case.

Publications on the research subject: 7 scientific articles.

Study domain: Law of the European Convention on Human Rights with special reference to the analysis of the proportionality principle.

The goal of the research resides in the multidimensional study of the practicability of the proportionality principle by the European Court of Human Rights in order to find final solutions for the examined cases to ensure balance between the competing interests, the supremacy of human values and the rule of law existing in the pan-European space. The objectives of the research are steered towards defining the senses of the proportionality principle and its elements; delimiting the characters and the legal essence of the margin of assessment acknowledged to the states under the ECHR depending on the specific rights whose violations is claimed; determining the express restrictions authorized in the exercise of the rights and freedoms; configuring the generic benchmarks of the practicability of the proportionality principle depending on the categories of the cases differentiated according to the criterion of the alleged violated right; establishing the limits when protecting the rights and freedoms following the evaluation of the correlation between the general and particular interests; exemplifying the character of the triple proportionality test based on the case studies; presenting the national peculiarities on the application of the proportionality principle based on the cases against the R. of Moldova; establishing the defaults in the internal legal system of the Republic of Moldova which have served as grounds for condemning the state to the European Court of Human Rights.

The Scientific novelty and originality of the research resides in the fact that it is for the first time in the national history of the scientific research that the international law of human rights and the international litigation law on the issue of the practicability of the proportionality principle in the ECHR system is presented, the theoretical backgrounds, the essence, the legal nature, and the particularities of the proportionality principle have been identified, as well as the practical functionality of the special mechanisms used by the European magistrates in setting the margins of the conventional rights and freedoms guaranteed under the ECHR have been proved; in presenting the arguments concerning the options of the practicability of the proportionality principle prioritizing the cases against the R. of Moldova solved by the European Court of Human Rights.

The significant scientific problem solved in the research consists in the fact that for the first time in local and regional judicial doctrine there have been analyzed the criteria, hypostasis and the peculiarities of the practicability of the proportionality principle in the system of the ECHR, the findings being formulated according to the specific cases solved by the European Court of Human Rights, highlighting the mechanisms used by the European magistrates in setting the margins of the conventional rights and freedoms guaranteed under the ECHR.

Theoretical significance of the research is assured by: the profound scientific nature of examining the peculiarities of the practicability of the proportionality principle in the context of jurisprudence recently released by the European Court of Human Rights, the contribution to the considerable development of the national theoretical basis concerning the legal essence and nature of the proportionality principle in connection with the daily legal realities of the European Council member states, actualizing the regional information on the research topic, exemplifying clearly the magisterial reasoning on giving effect to the exigency of proportionality, singularizing the criteria and specific parameters that grand a certain degree of protection to the claimed rights, taking into consideration the general and special interests involved in the case. Practical value of the research stems from the fact that it is intended for scholars, national magistrates, the employees from the justice system in the R. of Moldova, recipient public initiated in the sphere of international public law, international law of human rights, law of the ECHR, international litigation law, interested to propagate the European justice standards and to promote the values of human dignity as well as for those who intend to defend their rights before the European Court of Human Rights.

The implementation of the scientific results has been accomplished by publicizing the theoretical conclusions and practical recommendations formulated during the research in specialized magazines, as well as by presenting them during national and international conferences