Distrust, Infringement, Derogation and Proportionality in Human Rights Adjudication

Once the judge identifies a restriction of the right, the distrust towards the policy maker regarding the impugned legislation is growing. An infringement of the right has been established and the judicial intervention continues more rigorously to assess whether the infringement constitutes a violation of the right in ‘a democratic society’. Proportionality analysis is crucial in the analytical zone of the justification of the restriction of the right. However, in the case of a violation of the right, there can be, in exceptional circumstances, one more analytical zone. This is the zone of the derogation of the right, where the distrust towards the policy maker regarding the impugned legislation is growing even more. In this stage, it is necessary to use a kind of proportionality test, which is directed by the principles which may justify the derogation of the right. This paper explains these two necessity tests, while emphasizing the need to define what is a democratic society.