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Subsidiarity Post-Brighton: Procedural Rationality as Answer?

Published online by Cambridge University Press:  13 December 2016

Abstract

During the Interlaeken and Brighton conferences in 2010 and 2012 on the reform of the European Court of Human Rights (ECtHR or the Court) the High Contracting Parties demanded an increased focus of the Court on subsidiarity when considering cases. The ECtHR had been criticized by several states, in particular the United Kingdom (UK), for second-guessing domestic decisions of the democratically elected legislator. A procedural rationality approach could answer this critique. This approach implies that the Court takes the quality of the decision-making procedure as a decisive factor for its assessment of the proportionality of a domestic measure. In several recent high-profile cases the Court has adopted such approach providing the defending state with a wide margin of appreciation due to the high quality of the decision-making procedure. This contribution discusses to what extent the Court has applied this approach pre- and post-Brighton and the potential pitfalls. The contribution concludes that this approach could provide a vital leeway between the Court's supervisory and subsidiary role in the protection of human rights if applied coherently and consistently. However, it is no magic solution to silence the criticism against the Court as the opponents of the Court do not just reject its approach to proportionality review, but judicial review of legislative decisions altogether.

Type
INTERNATIONAL LEGAL THEORY
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2016 

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References

1 Gerards and Terlouw refer to the caseload and legitimacy crisis as a ‘double-faced crisis’. Gerards, J. and Terlouw, A., ‘Solutions for the European Court of Human Rights: The Amicus Curiae Project’, in Spyridon, F., Zwart, T. and Fraser, J. (eds.), The European Court of Human Rights and its Discontents: Turning Criticism into Strength (2013), 158 at 165CrossRefGoogle Scholar.

2 According to Spano charges against the Court have been ‘unprecedented’. Spano, R., ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’, (2014) 3 Human Rights Law Review 487, at 488CrossRefGoogle Scholar.

3 Zwart, T., ‘Een steviger opstelling tegenover het Europese Hof voor de Rechten van de Mens bevordert de rechtsstaat’, (2011) 7 Nederlands Juristenblad 343 Google Scholar or S. Blok and K. Dijkhoff, ‘Leg het Europese Hof aan banden’, Volkskrant, 7 April 2011.

4 Criticisms in Switzerland in general target the ECtHR case law on migration and religious freedoms. Politicians of the Swiss People's Party have even proposed leaving the Convention. However, these criticisms were met with a reaction that leaving the Convention was not an option and the Convention was vital for Swiss law. See Cross-party media release, ‘Unkündbar, unverzichtbar und untrennbar mits humanitären Tradition der Schweiz verbunden’, 9 December 2014, available at www.humanrights.ch/upload/pdf/141209_ueberparteiliche_MM_EMRK.pdf; and Speech President Claude Hêche, ‘40 ans de la ratification par la Suisse de la Convention européenne des droits de l'homme: allocution conclusive’, 9 December 2014, available at www.parlament.ch/fr/reden/Pages/rede-srp-heche-2014-12-09.aspx.

5 In particular, Russia is one of the most vocal protesters against the ECtHR. See, e.g., on its protests against the introduction of Protocol No. 14 of the Convention Bowring, B., ‘The Russian Federation, protocol No. 14 (and 14bis), and the battle for the soul of the ECHR’, (2010) 2 Goettingen Journal of International Law 589, at 610–13Google Scholar. However, in academic literature or in policy papers the critique by Russia is in general not mentioned due to the general perception of Russia's human rights record as poor. Its criticism is seen as a reaction to the many convictions rather than a principled stance on its democratic legitimacy and homegrown rights protection.

6 Çal, B., Koch, A. and Bruch, N., ‘The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights’, (2013) 35 Human Rights Quarterly 955, at 959CrossRefGoogle Scholar.

7 M. Elliott, ‘After Brighton: Between a Rock and a Hard Place’, (2012) Public Law 619, at 627–8.

8 For the formulation of hypotheses regarding decisive factors, see Popelier, P., Lambrecht, S. and Lemmens, K., ‘Shifting the Convention System: An Introduction’, in Popelier, P., Lambrecht, S. and Lemmens, K. (eds.), Criticism of the European Court of Human Rights. Shifting the Convention System: Counter-Dynamics at the National and EU Level (2016) 3 at 10–20Google Scholar.

9 Elliott, supra note 7, at 627; Masterman, R., ‘Taking the Strasbourg Jurisprudence into Account: Developing a “Municipal Law of Human Rights” under the Human Rights Act’, (2005) 54 International and Comparative Law Quarterly 907, at 912–13CrossRefGoogle Scholar.

note 7

10 See Dickson, B., ‘The Influence of European Law on the Protection of Fundamental Human Rights in United Kingdom Law’, in Popelier, P., Van De Heyning, C. and Van Nuffel, P. (eds.), Human Rights Protection in the European Legal Order: The Interaction between the European and the National Courts (2011), 343 at 344Google Scholar.

11 Dothan, S., ‘Judicial tactics in the European Court of Human Rights’, (2011) 12 Chicago Journal of International Law 115, at 115Google Scholar.

12 Voeten, E., ‘Public Opinion and the Legitimacy of the Courts’, (2013) 14 Theoretical Inquiries in Law 411, at 435CrossRefGoogle Scholar.

13 Vajnai v. Hungary, Decision of 8 July 2008, no. 33629/06, ECHR 2008. See on this judgment E. Polgari, ‘Gains and Loss – Changing the Relationship with the European Court of Human Rights’, in Popelier, Lambrecht and Lemmens (eds.), supra note 8.

note 8

14 Lautsi and others v. Italy [GC], Decision of 18 March 2011, no. 30814/06, ECHR 2011. This case was followed by a judgment of the Italian Constitutional Court. This judgment is in general seen as a reaction (and warning) against Lautsi. Italian Constitutional Court, Sentencia nr. 311, 16 November 2009.

15 High Level Conference on the Future of the European Court of Human Rights, Interlaeken, 18–19 February 2010.

16 High Level Conference on the Future of the European Court of Human Rights, Brighton, 19–20 April 2012 (hereafter Brighton Declaration).

17 Brighton Declaration, para. 3.

18 R. Spano, ‘The European Court of Human Rights and National Courts: A Constructive Conversation or a Dialogue of Disrespect’ (Torkel Opsahl Memorial Lecture 2014, Norwegian Center for Human Rights, 28 November 2014), available at www.jus.uio.no/smr/om/aktuelt/aktuelle-saker/2014/docs/judge-spano-torkel-opsahl-memorial-lecture---oslo---2014.pdf, at 4, 6 and Spano, supra note 2, at 491.

note 2

19 Spielmann, D., ‘Wither the Margin of Appreciation?’, (2014) 67 Current Legal Problems 49, at 56, 59CrossRefGoogle Scholar.

20 Explanatory Report to Protocol No. 15, para. 7, available at www.echr.coe.int/Documents/Protocol_15_explanatory_report_ENG.pdf.

21 Guerra, L. López, ‘National Identity and the European Convention on Human Rights’, in Arnaz, A. Saiz and Llivina, C. Alcoberro (eds.), National Constitutional Identity and European Integration (2013), 305 at 307, 309Google Scholar.

22 On the finesses of judicial conversations see Claes, M. et al. (eds.), Constitutional Conversations in Europe: Actors, Topics and Procedures (2012) 3 Google Scholar. These interactions are labeled ‘constitutional conversations’ when they consider the constitutional framework of interaction, e.g., the delineation of competences between both jurisdictions. Ibid., at 4. In a decision of 19 April 2016, the Russian Constitutional Court explicitly refers to such dialogue and calls on the ECtHR to have ‘respect for the national constitutional identity’, see www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2016)033-e.

23 J. Gerards, ‘The Pilot Judgment Procedure before the ECHR’, in Claes et al. (eds.), ibid., at 376–7.

24 Çal, Koch and Bruch, supra note 6, at 982.

note 6

25 This debate was sparked by an outspoken lecture by Lord Hoffman. Lord Hoffmann, ‘The Universality of Human Rights’ (Judicial Board Annual Lecture, London 19 March 2009). Speech, available at www.brandeis.edu/ethics/pdfs/internationaljustice/biij/BIIJ2013/hoffmann.pdf. See on this critique Spano, supra note 2, at 489.

note 2

26 Spano, supra note 18, at 4.

note 18

27 Elliott, supra note 7, at 627.

note 7

28 Ibid., at 622–3.

Ibid

29 Spielmann, D., ‘Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’, (2011–12) 14 Cambridge Yearbook of European Legal Studies 381, at 381CrossRefGoogle Scholar.

30 Spielmann, supra note 19, at 53.

note 19

31 S.A.S. v. France [GC], Decision of 1 July 2014, no. 43835/11, § 129, ECHR 2014. See also Spano, supra note 18, at 6.

note 18

32 Mouvement Raëlien Suisse v Switzerland [GC], Decision of 13 July 2012, no. 16354/06, § 60, ECHR 2012.

33 In this sense see Spano, supra note 18, at 4.

note 18

34 For this type of review, see Popelier, P. and Van De Heyning, C., ‘Procedural Rationality: Giving Teeth to the Proportionality Principle’, (2013) 9 Eu.Const.L.Rev. 230, at 252Google Scholar and Spano, supra note 2, at 487–502.

note 2

35 Bar-Siman-Tov, I., ‘Semi-procedural Judicial Review’, (2012) 6 Legisprudence 271, at 272–82CrossRefGoogle Scholar.

36 See, e.g., T. Hickmann, Public Law after the Human Rights Act (2010) 226–8.

37 Bar-Siman-Tov, supra note 35, at 280.

note 35

38 Alemanno, A., ‘The Emergence of the Evidence-based Judicial Reflex: A Response to Bar-Siman-Tov's Semiprocedural Review’, (2013) 1 The Theory and Practice of Legislation 331 Google Scholar, places great emphasis on this.

39 A substantive proportionality test implies a substantive review of the merits under the proportionality test, i.e., whether the domestic measures serve a legitimate aim, whether suitable and least restrictive means have been applied and striking a fair balance between ‘means, ends and affected rights’. See W. Weiss, ‘The EU Human Rights Regime post Lisbon: Turning the CJEU into a Human Rights Court’, in Morano, S. and Vickers, L. (eds.), Fundamental Rights in the EU: A Matter for two Courts (2015), 71 Google Scholar.

40 Spielmann defines a qualitative legislative procedure as one that is sufficiently informed and duly deliberated. See Spielmann, D., ‘Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’, (2011–12) 14 Cambridge Yearbook of European Legal Studies 381 CrossRefGoogle Scholar.

41 For the link between procedural rationality review and better regulation programs, see Popelier, P., ‘The Role of Courts in Legislative Policy Diffusion and Divergence’, (2015) 3 The Theory and Practice of Legislation 315 CrossRefGoogle Scholar.

42 Saul, M., ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’, (2015) 15 Human Rights Law Review 745, at 760–6Google Scholar, points in particular to committee work and plenary sessions. In Popelier, P., ‘The Court as Regulatory Watchdog’, in Popelier, P., Mazmanyan, A. and Vandenbruwaene, W. (eds.), The Role of Constitutional Courts in Multilevel Governance (2013), 249 at 257–65Google Scholar, a more detailed overview of the case law also highlights the importance of studies and statistics.

43 Konstantin Markin v Russia, Decision of 7 October 2010, no. 30078/06, ECHR 2010. The remark, however, was perceived as a hostile attack on the Russian Constitutional Court and disappeared in the Grand Chamber's Decision of 22 March 2012.

44 O. De Schutter, ‘The Two Lives of Bosphorus: Redefining the Relationship Between the European Court of Human Rights and the Parties to the Convention’, CRIDHO Working paper 2013/6, at 21. Available at cridho.uclouvain.be/documents/Working.Papers/CRIDHO-WP-2013-6-ODeSchutterBosphorus-26-8-2013.pdf.

45 De Schutter also hints at this, ibid., at 28.

46 See reference in S.A.S v. France, supra note 31, § 129; The National Union of Rail, Maritime and Transport Workers v. United Kingdom, Decision of 8 April 2014, no. 31045/10, § 99, ECHR 2014; Berger-Krall and others v. Slovenia, Decision of 12 June 2014, no. 14717/04, § 193, ECHR 2014.

note 31

47 Spano, supra note 2, at 499.

note 2

48 See also Spano, supra note 18, at 1, 6.

note 18

49 Rose-Ackerman, Egidy and Fowkes, Due Process of Lawmaking (2015) at 185.

50 Hirst v. the United Kingdom (no. 2), Decision of 30 March 2005, no. 74025/01 and Hirst v. the United Kingdom (no. 2) [GC], Decision of 6 October 2005, no. 74025/01, ECHR 2005-IX

51 Briant, S., ‘Dialogue, Diplomacy and Defiance: Prisoners’ Voting Rights at Home and in Strasbourg’, (2011) 3 European Human Rights Law Review 243, at 248–50Google Scholar.

52 See Saul, supra note 42, at 754–9.

note 42

53 Sukhovetskyy v. Ukraine, Decision of 28 March 2006, no. 13716/02, ECHR 2006-VI.

54 F. Fabbrini, ‘The Margin of Appreciation and the Principle of Subsidiarity: A Comparison’, (2015) Courts Working Paper Series, No 15, 1, at 6.

55 Ibid.

Ibid

56 For comparative analyses, see Popelier and Van De Heyning, supra note 34, at 255–9 and Rose-Ackerman, Egidy and Fowkes, supra note 49, at 296.

note 34
note 49

57 Neulinger and Shuruk v. Switzerland [GC], Decision of 6 July 2010, no. 41615/07, § 139, ECHR 2010; Vékony v. Hungary, Decision of 13 January 2015, no. 65681/13, § 55. Established case law, see also Maumousseau and Washington v. France, Decision of 6 December 2007, no. 39388/05, § 74.

58 E.g., Capital Bank AD v. Bulgaria, Decision of 24 November 2005, no. 49429/99, § 134, ECHR 2005-XII; Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, Decision of 11 October 2007, no. 14134/02, §§ 51–2; Vékony v. Hungary, Decision of 13 January 2015, no. 65681/13, § 36.

59 Referring explicitly to the quality of the legislative and judicial review: Animal Defenders International v. the United Kingdom [GC], Decision of 22 April 2013, no. 48876/08, ECHR 2013. For a more extensive overview, see P. Popelier, ‘The Court as Regulatory Watchdog’, in Popelier, Mazmanyan and Vandenbruwaene (eds.), supra note 42.

note 42

60 Hirst v. the United Kingdom (no. 2) [GC], Decision of 6 October 2005, no. 74025/01, ECHR 2005-IX; Alajos Kiss v. Hungary, Decision of 20 May 2010, no. 38832/06.

61 Anchugov and Gladkov v. Russia, Decision of 4 July 2013 nos. 11157/04 and 15162/05, § 108.

62 The National Union of Rail, Maritime and Transport Workers v. United Kingdom, Decision of 8 April 2014, no. 31045/10, § 99, ECHR 2014.

63 Hatton v. the United Kingdom [GC], Decision of 8 July 2003, no. 36022/97, § 128, ECHR 2003-VIII.

64 Hatton v. the United Kingdom, Decision of 2 October 2001, no. 36022/97, §§ 98 and 105.

65 Zammit Maempel v. Malta, Decision of 22 November 2011, no. 24202/10, §§ 70–71.

66 Lecarpentier and Other v. France, Decision of 14 February 2006, no. 67847/01, § 47.

67 Konstantin Markin v. Russia, Decision of 7 October 2010, no. 30078/06, § 144.

68 X and Others v. Austria [GC], Decision of 19 February 2013, no. 19010/07, §§ 142, 146, ECHR 2013.

69 Kiyutin v. Russia, Decision of 10 March 2011, no. 2700/10, § 72, ECHR 2011.

70 Evans v. the United Kingdom [GC], Decision of 10 April 2007, no. 6339/05, §§ 87-91, ECHR 2007-I.

71 A., B. and C. v. Ireland [GC], Decision of 16 December 2010, no. 25579/05, § 241, ECHR 2010.

72 Mowbray, A., ‘Subsidiarity and the European Convention on Human Rights’, (2015) 15 Human Rights Law Review 313, at 338CrossRefGoogle Scholar. As such, it is obvious that the Court has been perceptive to the criticisms.

73 Von Hannover v. Germany, Decision of 24 June 2004, no. 59320/00, §§ 74 and 78, ECHR 2004-VI.

74 Ibid., § 73.

Ibid

75 von Hannover v. Germany (no. 2) [GC], Decision of 7 February 2012, nos. 40660/08 and 60641/08, ECHR 2012.

76 Ibid., §§ 114 and 125.

Ibid

77 Ibid., § 124.

Ibid

78 Ibid., § 125.

Ibid

79 von Hannover v. Germany (no. 3), Decision of 19 September 2013, no. 8772/10, § 45; Ernst August von Hannover v. Germany, Decision of 19 February 2015, no. 53649/09, § 47.

80 A. and Others v. the United Kingdom [GC], Decision of 19 February 2009, no. 3455/05, § 182, ECHR 2009.

81 For a definition of (constitutional) conversations in the respect of this contribution see supra note 22.

note 22

82 Animal Defenders International v. the United Kingdom, [GC] Decision of 22 April 2013, no. 48876/08, ECHR 2013.

83 Ibid., §§ 102–4.

Ibid

84 VgT Verein gegen Tierfabriken v. Switzerland, Decision of 28 June 2001, no. 24699/94, ECHR, 2001-VI. In his concurring opinion, Judge Bratza, § 12, underlined that in VgT the precise extent of the parliamentary scrutiny was ‘unclear’.

85 As stressed in the dissenting opinion of Judge Tulkens, joined by Judges Spielmann and Laffranque, § 12.

86 See also, in this respect, the concurring opinion of Judge Bratza, § 4.

87 Ibid., §§ 109–13.

Ibid

88 Ibid., §114.

Ibid

89 Ibid., § 115.

Ibid

90 Ibid., § 82.

Ibid

91 Ibid., §§ 84–5.

Ibid

92 Ibid., § 119.

Ibid

93 Ibid., § 120.

Ibid

94 Ibid., § 123.

Ibid

95 Ibid., § 119 and concurring opinion of Judge Bratza, § 6.

Ibid

96 Ibid., Dissenting opinions of Judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano, §§ 1 and 3.

Ibid

97 Ibid., § 9.

Ibid

98 Ibid., Dissenting opinion of Judge Tulkens, joined by judges Spielmann and Laffranque, §§ 16 and 17.

Ibid

99 Dothan, supra note 11, at 115.

note 11

100 Lewis, T., ‘Reasserting the Primacy of Broadcast Political Speech after Animal Defenders International? – Rogaland Pensioners Party v. Norway’, (2009) 1 Journal of Media Law 37, at 41Google Scholar.

101 TV Vest AS and Rogaland Pensjonistparti v Norway, Decision of 11 December 2008, no. 21132/05, ECHR 2008.

102 Lewis, supra note 100, at 48.

note 100

103 Ibid., at 47.

Ibid

104 Shindler v. the United Kingdom, Decision of 7 May 2013, no. 19840/09, § 117.

105 Others v. Austria, supra note 68, §§ 142, 146.

note 68

106 Ibid., § 99.

Ibid

107 Anchugov and Gladkov v. Russia, supra note 61, § 108.

note 61

108 MGN Limited v. United Kingdom, Decision of 18 January 2011, no. 39401/04.

109 Ibid., §§ 215–17.

Ibid

110 Lord Hoffmann, supra note 25, at 25–6.

note 25

111 See also Popelier, P., ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs’, (2012) 6 Legisprudence 257, at 267–9CrossRefGoogle Scholar for strategies to deal with limited methodological capacity.

112 Dissenting Opinion, Judges Costa, Ress, Türmen, Zupančič and Steiner, Hatton and Others v. United Kingdom [GC], Decision of 8 July 2003, no. 36022/97, § 15, ECHR 2003-VIII.

113 Hardy and Maile v. the United Kingdom, Decision of 14 February 2012, no. 31965/07, § 231.

114 S. and Marper v. the United Kingdom [GC], Decision of 4 December 2008, nos. 30562/04 and 30566/04, ECHR 2008.

115 Smith and Grady v. the United Kingdom, Decision of 27 September, nos. 33985/96 and 33986/96, ECHR 1999-VI.

116 If this was the underlying purpose, however, it is clear from current political views in the UK that this has failed. An exit from the Convention has remained high on the agenda and is ever more probable after the Brexit vote on 23 June 2016. See C. Smith, ‘Lawyers fear for UK's role in ECHR after Brexit vote’, The Law Society Gazette, 24 June 2015, available at www.lawgazette.co.uk/law/lawyers-fear-for-uks-future-in-echr-after-brexit-vote/5056112.article.

117 Jeunesse v. the Netherlands [GC], Decision of 3 October 2014, no. 12738/10.

118 See, e.g., Bossuyt, M., ‘The Court of Strasbourg Acting as an Asylum Court’, (2012) 8 European Constitutional Law Review 203 CrossRefGoogle Scholar; Bossuyt, M., ‘Judges on Thin Ice: The European Court of Human Rights and the Treatment of Asylum Seekers’, (2010) 3 Inter-American and European Human Rights Journal 348 Google Scholar.

119 Jeunesse v. the Netherlands, supra note 117, § 122.

note 117

120 Ibid., Dissenting opinion of Judges Villiger, Mahoney and Silvis, § 1.

Ibid

121 Ibid., § 10.

Ibid

122 S.A.S. v. France, supra note 31.

note 31

123 Ibid., § 156.

Ibid

124 Ibid., Dissenting opinions of Judges Nussberger and Jäderblom, § 19.

Ibid
7
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