Vitalie GAMURARI, Doctor of Law, Associate Professor, ULIM
The topicality of the issue addressed in the monograph must be appraised from two angles: the importance of the principle of proportionality in the system of the European Convention on Human Rights, and the role of this principle in the process of alignment of the national regulatory framework into line with European standards. The fact that the present monograph tackles the issue from two perspectives confirms the undeniable presence of the novel element in this work. Some of the aspects that allow us to appreciate the role of this principle for the Rule of Law of any state, including the Republic of Moldova are presented bellow.
The content of the monograph promotes the idea that the proportionality introduces into the law a rigid computing element that is tangent with the flexibility of social science. As a result, the proportionality appears as a correlative ratio between two variables, or in other terms – a function. In law, this correlation is precise and is expressed in the form of a question, for example, the proportionality of the punishments, the proportionality of the electoral suffrage or the progressive nature of the tax, even if it is not possible to determine the a priori exact coefficient between the two variables. The principle of proportionality requires the use of all discretionary normative power according to the achieved purposes; in other terms, it commands a proportion between the means and objectives. This presupposes that the prescription of proportionality is conditioned by the existence of a freedom of action, which contains certain limits. In order to be applied, it, therefore, presupposes the relevant interpretation of the texts, in other words, the determination of their significance for the assortment of the existence of a discretionary power, in order for the principle of proportionality to eventually modulate the usage. In this regard, the proportionality arises not only from the interpretation of the law but also from the application / implementation and can be addressed to anybody with a discretionary normative power, whether it is a legislator, administrator, judge or even a private person.
The bond established by the principle of proportionality between the mechanisms that ensure the human rights at national level and the level of the European Convention on Human Rights must be accessed through the existing axiom according to which the limitation of the fundamental rights is controlled by the judge as a priority by the means of proportionality control technique.
When referring to separate states, we must note that the principle of proportionality is an essential element that contributes to legitimize the control function of the constitutional judge and, despite its flexibility, to enable the establishment of a legal vision within the democratic and contemporary political system. The Constitution is not only an instrument of the government, but it also contributes to the establishment of a governing system ruled by law.
This is also confirmed by the human rights protection system at European level, where the rights and freedoms are often accompanied by the general clause of necessity (Articles 8-11 of the ECHR), even in a democratic society.
We note that the theoretical argumentation of the subject is based on the most recent works, despite the fact that the list of works devoted directly to the principle of proportionality is quite modest.
It is worth mentioning that the author has also examined the works of the authors from the Republic of Moldova, which in agreement with those of the Western authors allowed a detailed examination of the subject from the point of view of current scientific trends.
The novelty aspect of the monograph is determined by the fact that the issue is addressed in terms of its intention to demonstrate that the principle of proportionality is a fundamental requirement for the unilateral retaliation of the state to unlawful and prejudicial conduct against it. Adrian Morărescu notes three determinative factors of the limits of the national margin of appreciation: 1) combating the advantages of the national authorities with those of the European forum being closer and more appropriate to each factual situation; 2) determining the applied/applicable standard; and 3) the assessment of the nature of the conflicting interests. Thus, the author considers that the limits of the judgment and discretion granted to the member states of the Council of Europe must reflect an equation of proportionality targeting the involved interests.
Characterizing the doctrine of the margin of appreciation regarding the jurisprudence of the European Court of Human Rights, the author notes that the limits of the margin granted to the states are of a complex and particular nature. This, according to the author, is due to the fact that the High Court authorizes both, broad limits, such as national security, public order, and fairly narrow limits, such as the protection of certain rights which, if exercised unrestrictedly due to the nature of the case, is crucial for a democratic society.
Along with the theoretical value of the monograph, we also mention the practical importance of the work. It is remarkable that the author, as result of the examination of a large number of cases from the practice of the European Court of Human Rights, addresses the principle of proportionality in relation to various articles of the European Convention in the framework of the assurance of several fundamental rights guaranteed by this important document.
By analyzing the restrictions expressly authorized in the exercise of the rights and freedoms assigned by the European Convention, the author points out that the rights guaranteed by this international act are not a priori absolute, so that not any interference by the State in the exercise of these rights constitutes an infringement. In fact, among the conditions justifying the compatibility of the interference of the authorities of a state are the following: the interference is prescribed by law, it pursues a legitimate aim and is necessary in a democratic society as confirmed by the case-law of the Court. Besides, as the author points out, there is also added the proportionality requirement between the interference and the legitimate aim pursued.
The methodological research level is also highly appreciated as it is characterized by concrete formulation of the objectives among which we highlight the multidimensional research of the applicability of the principle of proportionality by the European Court of Human Rights in order to establish final solutions on the examined cases aiming at ensuring a fair balance between the multitude of involved competing interests, the supremacy of human value, and the order of law existing in the European space. We note that for the achievement of the proposed objectives, the national legal systems of several states have been studied, including the ones that were influenced by the jurisprudence of the High Court.
The monograph is written in a scientific style using scientific terms, it is readable and argued both, theoretically and practically. Thus, the theoretical position based on the work of scholars is confirmed by the jurisprudence of the European Court of Human Rights, the supranational character of these judgments and their direct applicability being appreciated. Equally, the overwhelming number of cases from the High Court practice examined during the study enabled the author to come up with convincing arguments accessible not only to academia but equally to the practitioners and all those interested in the case law of the European Court of Human Rights.
Concerning the sources used in the study, we note that the bibliography used for the present study allowed the author to approach the issue in the light of the latest theoretical and practical trends; the works of the scientists, experts, national and international normative acts being subject to the study. With regard to the conclusions, it is worth mentioning that they are reasoned.
Concluding the presented ideas regarding the evaluation of the research results, we mention that the monograph signed by Adrian Morărescu, through the complex approach of the issue in question, can become a veritable source for future scientific researches on the role and place of the principle of proportionality in the system of the European Convention on Human Rights. The achievement of these scientific results has also been possible thanks to the author’s publications on the topic and participation in various scientific and practical events, exhibited in various scientific publications.
