Conceptual approaches to the application of principle of proportionality

Abstract

Upon the Article 8 of the Constitution of Ukraine the principle of the rule of law is recognized and eff ective in Ukraine. It is generally accepted that the principle of proportionality is a key component (sub-principle) of the rule of law along with the principle of legal certainty, principle of separation of powers, equality before the law, judicial independence. The principle of proportionality is considered to be one of the most transparent and eff ective mechanisms for the protection of human rights nowadays. Even though the principle of proportionality is a well-known principle both for the national and foreign jurisprudence, only a few foreign articles are devoted to the conceptions of application of the principle of proportionality while such studies are absent in Ukraine at all. Therefore, in our opinion, there is a need to analyze modern conceptions of application of principle of proportionality in order to start the scientific discussion in Ukraine because approaches to its application aff ect the results of the application of the latter. There are two conceptions of principle of proportionality application: optimizing conception and state-limiting conception. These two conceptions can be distinguished from one another by the extent of juridical activism and extent of right protection based on its content. Proceeding from examination of two main conceptions of principle of proportionality application: optimizing and state-limiting conceptions, the following features of these conceptions can be highlighted. As for the optimizing conception, assimilation (equating) of right and public interest, balancing between the right and public interest, equal protection of both rights and public interest, the rule of law shall be achieved through the balancing, not through the limiting the state. On the other hand, when it comes to the state-limiting conception – there is a clear distinction between the rights and public interest, absolute primacy of rights over any public interest, wide discretion of the judiciary, the rule of law shall be achieved through the protection of human rights. Key words: Rule of law, principle of proportionality, conceptions, limitation of government, human rights.