Language Switcher

5.4 Proportionality

The test of proportionality requires that limitation or restriction of a human right obligation is proportionate with the (legitimate) reasons for such limitation. Common rationales for proportionate limitation include security or national sovereignty, protection of other fundamental rights and protection from clear and present danger. By contrast, the Constitutional Court of the Czech Republic, in Pl. US 42/04 (6 June, 2006)[252] found that a two year time frame for potential beneficiaries to apply for a pension for a dependent child was disproportionate to the goal of properly administering public social security funding, and the same goal could be achieved through different means without affecting a fundamental right.

In a more recent case, ADPF 186 (Arguição de Descumprimento de Preceito Fundamental n.186), the Brazilian Federal Supreme Court used proportionality and reasonableness as criteria to assess the constitutionality of policies aimed at achieving racial equality. The Federal Supreme Court understood proportionality as proportionality between the means selected and the goals sought, and reasonability as reasonability of means and ends.[253]

ADPF 186 (Arguição de Descumprimento de Preceito Fundamental n.186)

Footnotes    (↵ returns to text)

  1. 252. For more information on this case, please refer to the ICJ Justiciability Study, p. 37.
  2. 253. See the case summary below and ESCR-Net Caselaw Database, accessible at: