108. Burden Of Proof. | Rights Freedoms | LexisNexis

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108. Burden of proof.

The burden of proving that a restriction¹ is proportionate lies with the state², and is sometimes formulated as the requirement that the state show 'relevant and sufficient' reasons for a restriction or interference³. It is then for the European Court of Human Rights to determine whether the interference in question is proportionate to the legitimate aim pursued

(1) Incorporation Of The European Convention On Human Rights

45. The Human Rights Act 1998.

46. Establishment of a United Kingdom human rights jurisprudence.

47. The interpretative obligation.

48. Scope of the interpretative obligation.

49. Declarations of incompatibility.

50. Remedial orders.

51. Parliamentary Bills.

52. Taking account of the jurisprudence of the European Court of Human Rights.

53. Powers of devolved assemblies.

54. Unlawful acts of public authorities.

55. 'Public authority'.

56. 'Core' public authorities.

57. Functions of a public nature.

58. Invoking the Convention rights against public authorities.

59. Who may bring proceedings.

60. Remedies.

61. Application of Convention in disputes between private parties ('indirect horizontal effect').

62. Establishment and jurisdiction.

63. Structure of the court.

64. References to the Court.

65. Admissibility criteria.

66. Admissibility procedure.

67. Examination of cases.

68. Striking-out of cases.

69. Advisory opinions.

70. Referral to Grand Chamber.

71. Settlements.

72. Final judgments, reasons and opinions.

73. Binding force of judgments, execution and just satisfaction.

74. Vienna Convention on the Law of Treaties.

75. Object and purpose of the European Convention on Human Rights.

76. Principle of effectiveness and narrowly construed limitations.

77. State's resources irrelevant to duty to comply with the Convention.

78. The Convention as a living instrument.

79. Autonomous concepts.

80. No formal doctrine of precedent.

81. Evidence and standard of proof.

82. Reference to other human rights instruments.

83. Absolute rights.

84. Limited rights.

85. Qualified rights.

86. Implied rights.

87. Balancing competing rights and interests.

88. Improper restrictions.

89. Derogations.

90. Reservations.

91. Restrictions on the political activities of aliens.

92. Restrictions on activities aimed at destroying the rights of others.

93. Protection of rights not contained in the European Convention on Human Rights.

94. Waiver of rights.

95. Implied limitations on limited rights.

96. Power to denounce Convention.

97. Protection of specified interests.

98. Interference with right must be justified.

99. Principle of legality.

100. Restriction must have a legal basis.

101. Restriction must be accessible.

102. Restriction must be sufficiently foreseeable.

103. Interference with rights must answer 'pressing social need'.

104. Nature of a democratic society.

105. Necessity in the context of absolute and limited rights.

106. Balancing individual and community rights.

107. Relevant factors and the 'very essence' test.

108. Burden of proof.

109. Least restrictive approach.

110. Proportionality in the context of absolute and limited rights.

111. Express and implied obligations.

112. Sources of obligations.

113. Existence and scope of positive obligations.

114. Positive obligations in the context of private individuals.

115. Examples of implied obligations.

116. Division of responsibility between domestic courts and European Court of Human Rights.

117. Primary role of the domestic courts.

118. Subsidiary role of the European Court of Human Rights.

119. Domestic courts' latitude regarding Convention issues.

120. Determining the width of the margin of appreciation.

121. Areas accorded a wide margin of appreciation.

122. Areas accorded a narrow margin of appreciation.

123. Margin of appreciation in domestic courts.

124. States' power to derogate from human rights obligations.

125. Derogations from the European Convention on Human Rights.

126. Non-derogable rights.

127. Designated derogations.

128. 'Public emergency threatening the life of the nation'.

129. 'Strictly required by the exigencies of the situation'.

130. Derogations and discrimination.

131. Effective control.

132. Attribution and jurisdiction.

133. Scope of rights guaranteed by the Human Rights Act 1998.

134. Extraterritoriality under the Human Rights Act 1998.

135. Domestic application of European jurisprudence on effective control and attribution.

136. Other international jurisprudence on extraterritoriality.