ABSTRACT

The European Court of Human Rights (ECtHR) has long been subject to criticism from certain States Parties for its efforts to micromanage domestic courts in their adjudication of human rights cases. From Interlaken (2010) to Copenhagen (2018), an increasing focus on subsidiarity is evident in declarations from High-Level Conferences on the Future of the ECtHR. Overburdened by repetitive cases, and conscious of questions about its legitimacy, the ECtHR has responded to calls for increased deference to national authorities by adopting a more procedural approach in its jurisprudence. Thus, the ECtHR has begun to vary the intensity of its review, based on the quality of decision-making by both domestic courts and national parliaments. The procedural turn remains controversial, however. There are conflicting opinions, within the literature, on its potential and limits, while dissenting opinions from ECtHR judges indicate that there is a lack of consensus within the ECtHR itself as to how and when it should be applied. Furthermore, its application has been far from consistent. Through an examination of the relevant literature, publications and certain key cases, this contribution first explores the rationale behind the procedural turn. Cited justifications for its adoption are highlighted, and risks in its application are identified. Against this backdrop, the consistency of the ECtHR’s current application of the procedural turn, and the coherence of guidance given to domestic courts on its use, are considered through the analysis of a sample of 30 cases drawn from the ECtHR’s recent jurisprudence on the expulsion of settled migrants under Article 8.

INTRODUCTION

The European Court of Human Rights (ECtHR) has long been subject to criticism from certain States Parties for its alleged micromanagement of human rights cases. In 2013, the adoption of Protocol 15 amended the preamble of the European Convention of Human Rights (ECHR) to include an explicit reference to subsidiarity and the margin of appreciation in its text for the first time. This amendment reflects the increasing focus on the subsidiarity of the ECtHR, seen in the 2012 Brighton Declaration, as well as declarations from other High-Level Conferences on its future, held in Interlaken, Izmir, Brussels and Copenhagen.