Methodological steps of the test of proportionality 

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... concept of proportionality was developed by the German Constitutional Court, but expanded far beyond Germany, and one can say that it became the post-war paradigm of human rights protection. The doctrine was also adopted by the ECtHR: the interpretation of the limitation clauses of Articles 8-11 was grounded on proportionality. The Strasbourg method includes the identification of the legitimate aim of restrictions, and, under the ‘necessary in a democratic society’ clause, the examination of the necessity and proportionality of limitations. The ‘privacy vs. security’ conflict can be in the background of cases about the infringement of Article 8 of the ECHR where the right to respect for private life is limited in the interest of national security, public safety or prevention of disorder or crime which are possible purposes of limitation laid down in the referred article of the Convention. When examining the case law of the ECtHR, we investigate how the Court accepts the reference by the Governments to the abovementioned legitimate aims and under what circumstances the Court finds the limitation necessary and how it balances between the conflicting rights and interests (see 3.1 and below). When we give examples for the interpretation of security as the purpose of the limitation, we focus on cases where the right to respect for private and family life laid down in Article 8 gets in conflict with security-related aims. This field of case law covers different situations - e.g. where because of detention, refusal of a residence permit or expulsion from a country to another, the applicants were incapacitated to communicate with close relatives; presence on the funeral of a family member, etc. However, analysing the balance between privacy and security, in harmony with the subject and goal of the project, we narrowed down the scope to those cases in which surveillance measures are in interference with information privacy. These cases concern typical conflicts between security and information privacy/data protection, such as interception of private communication, secret surveillance of individuals, registration of citizens in various databases for lustration purposes, investigation of crimes committed, etc. Deciding about the lawfulness of the limitation of a fundamental right is also a methodological challenge. Should it be a constitutional or a conventional right, the responsible court - a constitutional court or the Strasbourg Court - can make its decision verifiable, increase its persuasiveness and secure its authority if it follows the steps of the limitation test where only the last step is the balancing between the conflicting rights and interests which involves, by its nature, moral arguments. Prior to that, the human rights courts, thus the ECtHR, too, have to decide, firstly, whether a fundamental right, protected by the given constitution or the Convention, is concerned, and secondly, whether the quality of the law restricting the right meets the requirements. Applying the proportionality test, the evaluation of proportionality in a narrow sense is preceded, even if these structural elements of the test are not clearly identifiable in each decision, by three sub-questions, as illustrated in Figure 1: the identification of a legitimate aim, the rational connection between the aim and the measure restricting the right, and the necessity of that measure. ...