Original scientific paper
https://doi.org/10.25234/pv/22523
THE PROBLEM OF “WEIGHT” OF CONFLICTING CONSTITUTIONAL PRINCIPLES IN THE PROPORTIONALITY ANALYSIS (BALANCING)
Marin Keršić
; Senior Assistant, Faculty of Law, University of Split, Domovinskog rata 8, 21000 Split, Republic of Croatia
Abstract
This paper deals with the antinomies between constitutional principles by analysing balan- cing as one of the methods to solve the problem. More specifically, the author focuses on the balancing test in the context of proportionality and the question of the “weight” of the right. Firstly, the paper analyses the notions of constitutional principles and antinomies. Next, the- se notions are contextualised in the legal system of the Republic of Croatia using the example of the conflict between the protection of private and family life, dignity, reputation, and ho- nour (Art. 35 of the Constitution of the Republic of Croatia), freedom of thought and expre- ssion (Art. 38 of the Constitution of the Republic of Croatia). By deploying the analysis of the practice of the Constitutional Court of the Republic of Croatia and the European Court of Human Rights in the mentioned conflict, the paper presents theoretical conclusions regarding balancing and the question of the “weight” of the rights. The paper has two goals: First, point out the problems present in the balancing test related to the idea of the “weight” of the rights; second, present proposals that may lead to a clearer understanding of the notions introduced.
Keywords
antinomies; constitutional principles; balancing; proportionality
Hrčak ID:
293364
URI
Publication date:
31.12.2022.
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