თანაზომიერების პრინციპის თეორიული და პრაქტიკული ასპექტები (ქართული და გერმანული სამართლის მიხედვით)

Abstract

The principle of proportionality brings governmental activities into a strict constitutional and legal framework and thereby contributes to the adequate balancing of basic human rights and public legitimate goals set by the state. In the current edition of the Constitution of Georgia, specifically, in paragraph 3 of Article 34, it is explicitly stated that the limitation of the basic human rights must correspond to the importance of the legitimate goal that it serves to achieve. The dogmatics and practice of the principle of proportionality have been developed in German law since the 50s of the 20th century and spread throughout the continental European legal system. In the present situation, the constitutional courts consider the principle of proportionality as a universal constitutional principle and evaluate the justification for limiting the basic rights based on the established practice. However, there is no unambiguous and doctrinal discussion-free approach to the individual components of the principle of proportionality, especially where the line is drawn between the scope of the legislative view and the constitutional requirement of proportionality. The principle of proportionality and its proper articulation in practice represents a crucial achievement, although it is necessary to adequately understand its dogmatic nature in order to avoid separate theoretical or practical objections regarding this issue. Key words: the principle of proportionality, legitimate purpose, utility, necessity, proportionality in the narrow senses.