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'Don't use a sledgehammer to crack a nut': less restrictive means in the case law of the European court of Human Rights

Eva Brems (UGent) and Laurens Lavrysen (UGent)
(2015) HUMAN RIGHTS LAW REVIEW. 15(1). p.139-168
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Abstract
Using a sledgehammer to crack a nut obviously is a disproportionate action, since one could use a nutcracker instead. Verifying whether there exists a less restrictive means (LRM) for a human rights restriction is a central question of proportionality analysis. This article provides both a theoretical discussion of the LRM test as developed within the German legal tradition, and an exhaustive analysis of the European Court of Human Rights' practice in applying LRM reasoning. In two recent Grand Chamber judgments, the Court has explicitly endorsed the LRM test as part of its proportionality analysis. Nonetheless, it appears that the Court has not fully made up its mind on the application of the LRM test, which is illustrated by the lack of consistency in applying LRM reasoning, the lack of clarity regarding the substantive or procedural nature of the test and the struggle in applying the test to scrutinise general measures.
Keywords
European Convention on Human Rights, Nada v Switzerland, Mouvement Raelien Suisse v Switzerland, less restrictive means, proportionality, less restrictive means test

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Citation

Please use this url to cite or link to this publication:

Chicago
Brems, Eva, and Laurens Lavrysen. 2015. “‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights.” Human Rights Law Review 15 (1): 139–168.
APA
Brems, Eva, & Lavrysen, L. (2015). “Don”t use a sledgehammer to crack a nut’: less restrictive means in the case law of the European court of Human Rights. HUMAN RIGHTS LAW REVIEW, 15(1), 139–168.
Vancouver
1.
Brems E, Lavrysen L. “Don”t use a sledgehammer to crack a nut’: less restrictive means in the case law of the European court of Human Rights. HUMAN RIGHTS LAW REVIEW. 2015;15(1):139–68.
MLA
Brems, Eva, and Laurens Lavrysen. “‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights.” HUMAN RIGHTS LAW REVIEW 15.1 (2015): 139–168. Print.
@article{5871274,
  abstract     = {Using a sledgehammer to crack a nut obviously is a disproportionate action, since one could use a nutcracker instead. Verifying whether there exists a less restrictive means (LRM) for a human rights restriction is a central question of proportionality analysis. This article provides both a theoretical discussion of the LRM test as developed within the German legal tradition, and an exhaustive analysis of the European Court of Human Rights' practice in applying LRM reasoning. In two recent Grand Chamber judgments, the Court has explicitly endorsed the LRM test as part of its proportionality analysis. Nonetheless, it appears that the Court has not fully made up its mind on the application of the LRM test, which is illustrated by the lack of consistency in applying LRM reasoning, the lack of clarity regarding the substantive or procedural nature of the test and the struggle in applying the test to scrutinise general measures.},
  author       = {Brems, Eva and Lavrysen, Laurens},
  issn         = {1461-7781},
  journal      = {HUMAN RIGHTS LAW REVIEW},
  keyword      = {European Convention on Human Rights,Nada v Switzerland,Mouvement Raelien Suisse v Switzerland,less restrictive means,proportionality,less restrictive means test},
  language     = {eng},
  number       = {1},
  pages        = {139--168},
  title        = {'Don't use a sledgehammer to crack a nut': less restrictive means in the case law of the European court of Human Rights},
  volume       = {15},
  year         = {2015},
}

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