Abstract

BOROWSKI, MARTIN. Absolute Rights and Proportionality. Rev. Derecho Estado [online]. 2021, n.48, pp.297-339.  Epub May 05, 2021. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n48.11.

Certain rights are commonly regarded as absolute sensu stricto, that is to say, they lend themselves neither to limitation nor to proportionality analysis. Following the received opinion, absolute sensu stricto characterises rights found in Articles 3 and 4 (1) European Convention on Human Rights, articles 1, 4 and 5 (1) Charter of Fundamental Rights of the European Union. I shall argue, to the contrary, that the basic rights commonly regarded as absolute are not absolute sensu stricto. Rather, proportionality analysis that is employed elsewhere can and should be used here, too. Why so? The merit of a reconstruction of these rights in terms of proportionality analysis is the explanation that it provides, namely, why it is that these rights enjoy, for all intents and purposes, an "absolute" standing. Thus, the dogmatic, not to say a priori character of absolute rights sensu stricto yields to an understanding of these rights in terms of the very machinery used elsewhere in proportionality analysis.

Keywords : Absolute rights; proportionality; balancing; empirical certainty; relative absoluteness; human dignity; torture.

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