E
NHANCING
R
IGHTS
P
ROTECTION AND
C
ONVENTION
C
OMPLIANCE AT
N
ATIONAL
L
EVEL
Mikail Nicolaas Steens Master of Laws Thesis Professor Rosanne van Alebeek
Faculty of Law Universiteit van Amsterdam
This thesis is submitted as part of the requirements of the Public International Law (International and European Law) Master’s Programme
D
ECLARATION
This dissertation is the result of my own work and includes nothing, which is the outcome of work done in collaboration except where specifically indicated in the text. It has not been previously submitted, in part or whole, to any university of institution for any degree, diploma, or other qualification.
Signed:______________________________________________________________
Date:_________________________________________________________________
Mikail Nicolaas Steens Universiteit van Amsterdam
A
BSTRACT
A ‘procedural turn’ by the ECtHR has seen the Court supervising the quality of human rights protection at national level, reviewing, in abstracto, the quality of decisions made by responsible national courts and policy-makers for Convention compliance; compliance with the body of the Court’s jurisprudence and positive procedural obligations interpreted anew. This novel form of review has in some cases eschewed the need for a full substantive review (Art 32). The Court, content to abandon its in concreto proportionality analysis, may defer completely or partially to “better placed” state actors, conducting a less exacting review with a view to guiding state actors to Convention compliance in accordance with the principle of subsidiarity and to the extent a tailored margin of appreciation will allow. The thesis will begin by introducing the procedural turn and the dynamics which have nurtured its development. Against that background, semi-procedural review’s minimum standards of evidence-based decision-making will be identified by way of a case analysis. The case analysis will show how the minimum standards of evidence-based decision-making enhance the protective scope of existing rights. It will concurrently establish a positive relationship between state compliance with minimum standards of evidence-based decision-making and a widening of the margin of appreciation and more lenient review. The thesis will evaluate, from an internal and external perspective, whether the Court is using semi-procedural review to enhance the protective scope of rights and whether the relationship between semi-procedural review and the margin of appreciation is the Court’s indirect way of facilitating better implementation of Convention principles at national level.
A
CKNOWLEDGEMENTS
T
ABLE OF
C
ONTENTS
1 INTRODUCTION 2
1.1AIMS AND OBJECTIVES 3
1.2CHAPTER OVERVIEW AND THEORETICAL FRAMEWORK ...4
1.3METHODOLOGY 5
2 SEMI-PROCEDURAL REVIEW 6
2.1THE COURT’S TRADITIONAL REVIEW FUNCTION ...6
2.2SEMI-PROCEDURAL REVIEW 8
2.3PROCEDURAL RIGHTS APPROACH 13
2.4PROCEDURAL REVIEW STRICTU SENSU 14
2.4.1 Illusory Deference 14
2.4.2 Leniency of Review 16
2.4.3 General Measures 19
2.4.4 Rights Enhancement or Leniency of Review21
3 WHENCE THE PROCEDURAL TURN? ... 23
3.1EVIDENCE-BASED POLICY MODELS 24
3.2IMPROVING EFFICIENCY AND SUBSIDIARITY OR CONVENTION COMPLIANCE ... 24
3.2.1 Pilot Judgment Procedure 26
3.2.2 Equivalent Protection Doctrine 26
3.2.3 Fourth Instance Doctrine 27
3.2.4 Enhancing Compliance 28
3.3RESULTS 34
3.4DISCUSSION AND RECOMMENDATIONS 36
4 REFERENCES 39 4.1PRIMARY SOURCES 39 4.1.1 Treaties 39 4.1.2 Regulations 39 4.1.3 Case Law 40 4.2SECONDARY SOURCES 42
1 I
NTRODUCTION
‘[I]t is not possible to find in the domestic law of the Contracting States a uniform conception of morals. … State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction’ or ‘penalty’ intended to meet them.’
Where politically sensitive or morally controversial issues arise in the course of their balancing competing interests, the Court has given states a margin of appreciation to determine the means to meet them,1 proffering a subsidiarity-based justification when doing so.2 By reason of their
“…democratic legitimation,” national authorities are better placed to “…evaluate local needs and conditions”.3 Thus, different responses are justifiable in different situations in different states.4
A ‘procedural turn’ has been observed in the Court’s practice over the past two decades and the Court has more recently made qualitative, democracy-enhancing assessments of national
1 Handyside v. United Kingdom App No 5493/72 (A/24) [1976] ECHR 5 at [48]. Greer, S. (2000). The Margin of
Appreciation: Interpretation and Discretion under the European Convention on Human Rights. 17, Human Rights Files, No 17,
p. 5.
2 Nicklinson and Lamb v. United Kingdom App No 2478/15 at [84]: “…Further, it would be odd to deny domestic
courts… the possibility of concluding… Parliament is best placed to take a decision on the issue in question in light of the sensitive issues… which arise.”
3 Hatton v. United Kingdom App No 36022/97 [2003] ECHR 338 at [97]; Van der Heijden v. Netherlands App No
42857/05 ECHR 2012 at [55].
4 Council of Europe. The Margin of Appreciation. CoE. Viewed 3 June 2018.
decision-making, adapting its margin of appreciation doctrine in a handful of cases.5 Whereas
“…the focus of Strasbourg,”6 was once centred on “…the practical outcome, not the quality of
the decision-making process that led to it,”7 its focus has shifted such that it now seeks to find
“…whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests.”8 The Court has shown a willingness to “…defer to the
reasoned and thoughtful assessment by national authorities of their Convention obligations.”9
Two quite distinct developments are afoot. First, the Court is reviewing the quality of national decision-making (semi-procedural review10), and second, it is deferring to national authorities
(less exacting review or leniency of review11). Some scholars suggest the Court’s review of the
quality of national decision-making is purposed to enhance the protective scope of rights, adding an independent standard of review, comprising minimum standards of evidence-based decision-making, to the Court’s existing substantive review. This development is said to be quite separate from the Court’s proportionality analysis and any change in its margin of appreciation doctrine. Still others see the developments as interlinked; a two-limbed inquiry forming part of the same procedural turn, the Court first reviewing the quality of national decision-making and then conducting a less exacting review if positive inferences can be drawn from the domestic process.
1.1 Aims and Objectives
This paper aims to identify the scope and purpose of semi-procedural review. It will confirm (i) what the minimum standards of evidence-based decision-making are, (ii) whether semi-procedural review enhances the protective scope of rights, (iii) whether and how semi-semi-procedural review and the margin of appreciation are related and, (iv) if they are related, why they are
5 Spano, R. (2014). Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity. 14 H.R.L.Rev. 487.
Spielmann, D. (2014). Wither the Margin of Appreciation. 67 CLP 49, p.58.
6 R (on the application of Begum) v. Governors of Denbigh High School [2007] 1 AC 100 at [29]: “…the focus at Strasbourg is
not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether… the applicant’s Convention rights have been violated.”; c.f. Sahin v. Turkey, App No 44774/98 [2005] ECHR 819 at [100]-[102]: “It is for the national authorities to make the initial assessment of the ‘necessity’ for an interference, as regards both the legislative framework and… measure of implementation.”
7 Ibid. at [31].
8 Martinez v. Spain App No 56030/07 [2014] ECHR 851 at [147]. 9 Spano, Universality or Diversity of Human Rights?, see. Abstract.
10 Bar-Siman-Tov, I. (2012). Semiprocedural Judicial Review. Legisprudence, Vol. 6, No. 3, p.280.
11 Arnardóttir, O. M. (Ed.), Buyse, A. (Ed.). (2016). Shifting Centres of Gravity in Human Rights Protection. London:
related. The paper will consider how the Court reviews national decision-making in practice and whether and how its findings influence the margin of appreciation. The context and purpose behind the procedural turn, semi-procedural review and leniency of review will all be considered. The Court’s effectiveness has been progressively compromised by its caseload, and an increasing number of member states are actively resisting the Court’s guiding hand. Structural inefficiencies and “Strasbourg bashing,”12 have undermined the effectiveness of the Convention system. Quite
possibly we are witnessing the Court’s response to criticisms regarding its inefficiency and its apparent lack of deference and legitimacy. The deferential aspect of the procedural turn could be construed by some states as a signal of the Court’s retreat.13 Conversely, the Court may see
controlled deference as a means of incentivising better implementation of Convention principles at national level through the promise of less exacting review; greater importance attaching to evidence-based decision-making as the safety-net (of a wider margin of appreciation). Then again, the Court’s procedural awareness may be a judicial response to evidence-based regulation. The procedural turn is not a new development, though it appears the Court’s adaptation of the margin of appreciation doctrine is. If the functional issues of the Court preceed the practice of less exacting review, how else is the practice explained? Is the Court’s use of the margin of appreciation strategic, a means of encouraging better implementation of the Convention at national level? Or, is the Court merely reacting to criticism which is has received in recent times?
1.2 Chapter Overview and Theoretical Framework
Chapter 2 will introduce semi-procedural review in general terms and then analyse the Court’s practice to establish whether; (i) semi-procedural review has developed as an independent rights-enhancing standard of review, and (ii) whether a relationship exists between the Court’s review of domestic processes and its application of the margin of appreciation. Chapter 3 will consider some of the external dynamics that are thought to have influenced the Court’s reformulation of the margin of appreciation. Those dynamics together with the analysis of the Court’s practice in Chapter 2 will be used to identify the purposes which underly the developments. The paper will conclude by making recommendations relevant to the availability and efficacy of the review type.
12 Oomen, B. M. (2015). A serious case of Strasbourg-bashing? An evaluation of the debates on the legitimacy of the European
Court of Human Rights in the Netherlands. The International Journal of Human Rights, 20:3, pp.407-425.
13 Arnardóttir, O. M. (2015), Organised Retreat? The Move from ‘Substantive’ to ‘Procedural’ Review in the ECtHR’s Case Law
1.3 Methodology
The thesis employs qualitative research; inter alia, the views, opinions and findings of individuals. The views of individuals are subjective, influenced by their epistemological biases; the way they comprehend their reality.14 Subjectivity lends itself to exploratory research which paves a broad
and spacious path into fields of new insight, discovery and enlightenment.15 The data upon
which the findings of this study are based were collected from the decisions of the ECtHR (HUDOC), as well as secondary, scholarly sources (Google Scholar, HeinOnline and SSRN). For example, a search of the HUDOC database using the keywords “positive obligations,” “fair balance” and “strong reasons” and the filter “Article:8 OR 8-1 OR 8-2” was used for the case analysis. Recent and relevant cases were considered, along with those cited cases which form part of the jurisprudence those cases have built upon. A cursory review of the abstracts of scholarly articles that were identified by targeted keyword searches were included in the research.
14 Kumar, R. (2005). A Step by Step Guide to Research Methodology. New York: Sage, p.26. 15 Ibid.
2 S
EMI
-P
ROCEDURAL
R
EVIEW
This chapter will begin by briefly outlining the Court’s traditional review function. Against that background, semi-procedural review and the minimum standards of evidence-based decision-making will be presented in general terms. The casting of semi-procedural review in types will be used to direct a case-by-case analysis of the Court’s decisions. The analysis aims to identify features of semi-procedural review which show it to be an independent, rights-enhancing standard of review. The analysis will concurrently examine those self-same cases to discern a link between semi-procedural review and the margin of appreciation doctrine, and to ascertain the degree of deference the Court affords to states and the conditions under which it does so.
2.1 The Court’s Traditional Review Function
The Court has broad discretion over “…all matters concerning the interpretation and application of the Convention”.16 Rights and their correlative obligations are explicit in some articles of the
Convention (e.g. Articles 5, 6 and 13) and implicit in others (e.g. “prescribed by law” in Articles 9, 10 and 11).17 The Court has repeatedly maintained, “[t]he Convention is intended to guarantee
not rights that are theoretical or illusory but rights that are practical and effective.”18 The Court
looks “…beyond the text,” of the various Convention Articles to discern their object and
16 European Convention on Human Rights as amended by Protocols 11 and 14 (adopted 4 November 1950, entered
into force 3 September 1953); Article 32.
17 The phrase “prescribed by law” places implied procedural obligations upon national policy-makers to avoid
arbitrariness and enhance transparency and predictability of law.
purpose.19 The Court has applied a teleological method of interpretation, inquiring into the spirit
of the Convention, as contrasted with the originalist methodology which conceives the convention as inextricably tied to the circumstances of its inception.20 The Court will have
regard to ‘present-day standards’ when interpreting the Convention so as to ensure rights are preserved through the passage of time as new societal norms and customs emerge.21 “[T]he
Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions.”22 This approach has been termed the
‘living instrument’ doctrine.23 Likewise, the Court strives for European consensus in interpreting
present-day standards.24 A comparison of state practice should indicate whether a right has one
or several interpretations which are similar in substance, poles apart or even entirely opposed.25
Traditionally the Court’s review begins with its interpretation of the relevant Convention Article expressed in the form of general principles. The Court applies those principles to the facts of the case by means of a proportionality assessment. The Court “…must look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’,” and whether the reasons adduced by the national authorities to justify it are “...relevant and sufficient…”26 A margin of appreciation is afforded to states in
striking a fair balance. Without losing sight of the general context of the case, in proceedings originating in an individual application the Court must confine its attention to the concrete case.27
19 Croquet, N. A. J. (2011). The European Court of Human Rights’ Norm-Creation and Norm Limiting Processes: Resolving a
Normative Tension. 17 Colum. J. Eur. L. 3017, p.315.
20 Letsas, G. (2010). A Theory of Interpretation of the European Convention on Human Rights. Oxford: Oxford University
Press, pp.68-72.
21 Letsas, G. (2012). The ECHR as a Living Instrument: Its Meaning and its Legitimacy. Cambridge: Cambridge University
Press.
22 Stec and Others v. the United Kingdom App no 65731/01 (2006) 43 EHRR 47 at [48].
23 Tyrer v. the United Kingdom App No 5856/72 (A/26) [1978] ECHR 2 at [31]; Bayatyan v. Armenia App No 23459/03
[2011] ECHR 1095 at [102].
24 Ndidi v. United Kingdom App No 41215/14 [2017] ECHR 781 at [75] and [76]; Hamidovic v. Bosnia and Herzegovina
App No 57792/15 [2017] ECHR 1101 at [38].
25 Ibid.
26 Jehovah’s Witnesses of Moscow v. Russia App No 302/02 at [108].
The Court’s task “…is not to review the relevant domestic law and practice in abstracto,” but to assess whether the relevant Convention principles were correctly applied to the applicant’s case.28
2.2 Semi-Procedural Review
The parameters of semi-procedural review are still unclear, with two types emerging from the Court’s practice. The first characterises semi-procedural review as part and parcel of the living instrument doctrine. To render Convention rights more practical and effective, and to enhance their protective scope, the Court has read procedural obligations into them (termed the procedural rights approach).29 The second type of semi-procedural review entails the quality of
national decision-making influencing the Court’s review of the proportionality or reasonableness of a measure (termed procedural review strictu sensu).30 The latter type is associated with leniency
of review. Leniency of review is discerned from the absence of or limited degree to which the Court performs its proportionality assessment in concreto; “…where the Court makes its own independent assessment of the facts involved and of the application of the relevant principles to those facts”.31 Where the Court analyses the quality of decision-making behind a measure
without examining the way in which the measure affects the applicant in a concrete sense, leniency in the Court’s traditional review is discerned. Some scholars view semi-procedural review as a standalone, rights-enhancing limb of the Court’s review, unrelated to leniency of review.32 Still, others consider the development tied to the Court’s proportionality inquiry.33 The
28 Garib v. the Netherlands App No 43494/09 [2016] ECHR 211 at [136]. Von Hannover (No. 2) App No
40660/08 [2012] ECHR 228 at [116].
29 Arnardóttir, O. M. (2015), Organised Retreat? The Move from ‘Substantive’ to ‘Procedural’ Review in the ECtHR’s Case Law
on the Margin of Appreciation. European Society of International Law (ESIL) 2015 Annual Conference (Oslo), p.5: The
Court “…interprets [positive] obligations of a procedural nature into substantive Convention rights.”
30 Ibid., pp.5-6: “[T]he Court emphasises the quality of national decision-making processes as an element that
influences its own review of the proportionality or reasonableness of a contested measure.”
31 MGN v. United Kingdom App No 39401/04 [2011] ECHR 66, Dissenting Opinion of Judge David Thor and others,
at [10].
32 Popelier, P. and van de Heyning, C. (2013). Procedural Rationality: Giving Teeth to the Proportionality Analysis. 9
EuConst 230; Gerards, J. (2012). The Prism of Fundamental Rights. 8 EuConst 173, p.200.
33 Saul, M. (2015). The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments.
Human Rights Law Review, Volume 15, Issue 4, Pages 745–774; Brems, E. and Lavrysen, L. (2013). Procedural Justice in Human Rights Adjudication: The European Court of Human Rights. 35 Human Rights Quarterly 176-200, p.190-198.
margin of appreciation doctrine is tied to balancing competing interests under the principle of proportionality and is therefore squarely connected to the second element of proceduralisation.34
In a nutshell, semi-procedural review requires lawmakers to observe minimum standards for balanced, evidence-based decision-making.35 Those minimum standards are semi-procedural
guidelines which direct how decisions are to be made and what considerations decision-makers must have regard to. For example, minimum standards of evidence-based decision-making require national authorities to base their decisions on a certain standard and quality of evidence. The adoption of evidence-based policy models (termed ‘Better’ or ‘Smart’ Regulation36) by the
OECD has seen widespread implementation of regulatory tools at EU level, including “…impact assessments, consultation procedures, ex post monitoring and alternatives for regulation.”37
These tools have infiltrated the once ‘sacrosanct’ law-making prerogative of parliament,38
culminating in what has been termed an ‘evidence-based judicial reflex’.39 Noted, regulatory
reforms and judicial review pursue different objectives.40 Nevertheless, as evidence-based
decision-making has gained a foothold in the member states, so too an emergent procedural empiricism has been discerned in the case law of constitutional courts, the ECJ and the ECtHR, the ‘watchdogs’ of evidence-based decision-making.41 Evidence-based review has improved the
quality of decision-making and enhanced the protective scope of the Convention in two ways.
34 Greer, S. The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights. Council
of Europe Publishing 2000 22; Arnardóttir, Organised Retreat?, p.6.
35 Popelier, P. (2012). Preliminary Comments on the Role of Courts as Regulatory Watchdog. Legisprudence 6 (3), p.252. 36 Alemanno, A. (2011). A Meeting of the Minds on Impact Assessment, When Ex Ante Evaluation Meets Ex Post Judicial
Control. European Public Law, Vol. 17 No. 3: Recently relabelled ‘Smart Regulation’.
37 Popelier, P. (2017). Evidence-Based Lawmaking: Influences, Obstacles and the Role of the European Court of Human Rights. In
Gerards, J. and Brems, E. (Eds). Procedural Review in European Fundamental Rights Cases (pp. 79-94). Cambridge: Cambridge University Press, p.80; Popelier, P. (2015). The Role of the Courts in Legislative Policy Diffusion and Convergence. TPLeg, 3, pp.316-318: Economic competition (efficiency) has been a strong driver behind evidence-based policy promoted by the OECD.
38 Popelier, Evidence-Based Lawmaking, p.79.
39 Alemanno, A. (2013). The Emergence of the Evidence-Based Judicial Reflex: A Response to Bar-Siman-Tov’s Semiprocedural
Review. TPLeg, 1, p.333.
40 Popelier, Preliminary Comments, pp.257-268.
41 Popelier, P. (2012). The Court as Regulatory Watchdog: The Procedural Approach in the Case Law of the European Court of
Human Rights. In Popelier, P. Mazmanyan, A. and Vandenbruwaene, W. (Eds). Role of Courts in a Context of Multilevel Governance. Antwerp: Intersentia, pp.250-268.
First, evidence-based review requires decision-makers to have obtained relevant and reliable information to make out the fullness of rights before weighing them. The Court will in some cases inquire into legislative and public debate to ascertain whether the decision-maker took account of the applicant’s concrete case and whether case studies, expert reports and commissions of inquiry were duly considered.42 Evidence-based review enquires into “…the
presence of substantive parliamentary debate, consultations, statistical evidence or expert advice to prove that an inclusive and informed balance of interests underpins the challenged measure.”43
Evidence-based review requires authorities to demonstrate they have deliberated and attempted to weigh competing rights whilst accounting for the concrete effects of a proposed decision on the applicant and with regard to all the relevant evidence which they have actively sought to find. Second, as evidence-based policy models and evidence-based review are correlative, they enhance, in theory, the protective scope of the Convention by decreasing the incidence of rights violations at national level in their pursuit of efficiency.44 “[E]vidence-based legislative policy
programmes trigger [evidence-based review], and…[evidence-based review] encourages evidence-based law-making…”45 Evidence-based regulation and review both pursue efficiency.
The Court’s reasoning in S.A.S. v France serves as a useful illustration.46 The Court reproduces in
its decision, the ‘Bill prohibiting the concealment of one’s face in public places, impact assessment, May 2010’ which attests to “wide public debate” over “…the concealment of the face in public places [and] the wearing of the full veil…” vis-à-vis the principles of liberty, equality, and fraternity.47 The impact assessment refers to an advisory study undertaken by the
Conseil d’État on “…the possible legal grounds for banning the full veil,”48 which found “…that
such a ban would be legally weak and difficult to apply in practice”.49 Impact assessments
incorporating the advice of the Conseil d’État are now a mandatory precursor to the passage of
42 Hatton v. United Kingdom App No 36022/97 [2003] ECHR 338 at [128]. 43 Popelier, Evidence-Based Lawmaking, p.80.
44 Ibid, p.337; Vanberg, G. (2005). The Politics of Constitutional Review in Germany. Cambridge University Press, p.12. 45 Popelier, Evidence-Based Lawmaking, p.80.
46 S.A.S. v. France App No 43835/11 [2014] ECHR 695.
47 Ibid. at [II(A)(1)]: ‘Legislative History’; and at [25]: “Bill prohibiting the concealment of one’s face in public places,
impact assessment, May 2010”; and at [129-131]: “… the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is “necessary”.
48 Ibid. at [20]–[23]. 49 Ibid. at [22].
most laws in France.50 The impact assessment frames the problem, prefigures the solution,
engenders debate, and proposes to adopt the measure into law “…following the necessary period of explanation and education”.51 The impact assessment sets the scene for a review by the
Conseil constitutionnel,52 as it does for a survey of the Open Society Justice Initiative whose report
entitled ‘Unveiling the Truth: Why 32 Muslim Women Wear the Full-Face Veil in France’ highlights the adverse consequences of the ban on Muslim woman.53 The impact assessment is
seen to polarise French society and the international community, catapulting them into a frenzy of evidence-themed rhetoric. The Court for its part is persuaded by the product of this regulation-laden process and affords a wide margin of appreciation to the French authorities.54
The Court recognises a “…duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question.”55 It concludes, the policy underpinning the
blanket ban is “…a choice of society.”56 Indeed, the Court does not expressly rule out
deficiencies in the legislative process, nor does it purport to carry out such a specific inquiry. Still, given the Court’s growing and controversial focus on procedure, exemplified by the attention which it pays to the legislative steps preceding the enactment of the measure, it is of note the Court does not once question the quality of legislative debate or other aspects of the domestic procedure.57 It accepts the legitimate aim of ‘living together’ had public support.58
Invariably, the Court and national decision-makers reach a point of pareto-efficiency, whereby
50 Duprat, J.-P. (2012). The Judicial Review of Ex Ante Impact Assessment in France: An Attempt to Fuse the Principles of Legal
Certainty and Institutional Balance. Legisprudence 6. OL No. 2009-403 of 15 April 2009 on the application of Articles
34-1, 39 and 44 of the Constitution, Journal officiel of 16 April 2009; p. 6528: Section 8 defines a general obligation to submit executive bills to impact assessment; p. 6546: The impact assessment is defined by a circular of the Prime Minister as a tool to assess outcomes, to assist the policy-maker; moreover, the impact assessment is to be followed by each ministry.
51 S.A.S. v. France App No 43835/11 [2014] ECHR 695 at [25]. 52 Ibid. at [II(A)(B)] at [30].
53 Ibid. at [104].
54 Ibid. at [129]: “In matters of general policy, on which opinions within a democratic society may reasonably differ
widely, the role of the domestic policy-maker should be given special weight; see also. Maurice v. France App No 11810/03, ECHR 2005-IX at [117]. See also. Hatton v. United Kingdom App No 36022/97 [2003] ECHR 338 at [97].
55 S.A.S. v. France App No 43835/11 [2014] ECHR 695 at [154]. 56 Ibid. at [153].
57 See also. MGN v. United Kingdom App No 39401/04 [2011] ECHR 66 at [203]-[218]. 58 Popelier, Evidence-Based Lawmaking, p.79.
the authorities’ evidence-based decision-making and the Court’s evidence-based review will apply the same settled principles in the same balancing exercise to achieve much the same outcome. Evidence-based policy models “…regard efficiency and effectiveness as key principles or quality standards.”59 As regards impact assessment, the European Commission claims this regulatory
tool “…promotes more informed decision-making and contributes to better regulation which delivers the full benefits of policies at minimum cost while respecting the principles of subsidiarity and proportionality.”60 The Commission has produced impact assessment guidelines
which state proportionality “…can only be fully verified once objectives are set and the impacts of alternative options assessed”. 61 Impact assessments must “…compare the policy options on
the basis of their economic, social and environmental impacts.”62 These guidelines bear striking
resemblance to the Court’s proportionality analysis.63 Recall three key elements of the Court’s
proportionality analysis, (a) the measure must be suitable and not “…blatantly irrelevant to the pursuit of the objective,”64 (b) the measure must not curtail rights more than is necessary,
alternative options considered (also referred to as “the less restrictive means test”65, and (c) the
infringement must be proportional in the strict sense; all things considered, the benefits must outweigh the costs (also referred to as balancing).66 Such principles are regarded by Robert
Alexy as “….optimisation requirements relative to what is legally and factually possible.”67 In
implementing evidence-based regulatory tools, national authorities employ, whether knowingly or unwittingly, the principles of the Court’s traditional proportionality assessment, which share
59 Popelier, Preliminary Comments, p.261; OECD. (2005) Guiding Principles for Regulatory Quality and Performance; See. also.
European Commission. (2010). Smart Regulation in the European Union (Communication). EC. Viewed 1 January 2018. <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0543:FIN:EN:PDF>, p.4.
60 European Commission. (2017). Staff Working Document, Better Regulation Guidelines Brussels. EC. Viewed 1 January
2018. <https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines.pdf>. See also. European Commission. (2009). Impact Assessment Guidelines. EC SEC. Viewed 1 January 2018. <http://ec.europa.eu/smart-regulation/impact/commission_guidelines/docs/iag_2009_en.pdf>.
61 Ibid. p.19. 62 Ibid. p.16.
63 Popelier, Preliminary Comments, p.262.
64 Croquet, N. A. J. (2011). The European Court of Human Rights’ Norm-Creation and Norm Limiting Processes: Resolving a
Normative Tension. 17 Colum. J. Eur. L. 3017, p.311.
65 Rivers, J. (2002) A Theory of Constitutional Rights and the British Constitution. In Alexy, R. (Ed). A Theory of Constitutional
Rights. Oxford: Oxford University Press, p.xxxii.
66 Popelier, Preliminary Comments, p.262.
efficiency as their aim. The unity of evidence-based decision-making and semi-procedural review is reinforced in this finding.68 Corelative evidence-based regulation and evidence-based review
enhance the protective scope of the Convention by ensuring the proportionality of a measure is ascertained, on the balance of relevant and reliable evidence, before it is passed, and a violation perpetuated. In this regard, evidence-based review serves as an ambulance at the top of the cliff.
2.3 Procedural Rights Approach
Consider the normative function of the procedural turn, where the Court reads into Convention provisions positive obligations for the state to observe certain procedural and semi-procedural requirements.69 The Court appears to deploy its principles on procedural obligations when it
would otherwise be barred from reviewing the substantive merits of a decision owing to a wide margin of appreciation.70 In Hatton v United Kingdom,71 the Court held the relevant authorities had
conducted “…a series of investigations and studies… over a long period of time,” and further, “…new measures introduced by that scheme were announced to the public by way of a Consultation Paper.” The applicants were well-placed to make representations and it was open to them to do so. The Grand Chamber concludes, there had not been “…fundamental procedural flaws… in the preparation of the night flights scheme,72 and finds no violation of
Article 8.73 Semi-procedural review enhances the protective scope of rights by supplementing
substantive elements of rights with their procedural counterparts to “give teeth” to the Court’s review.74 Procedural rights may secure minimum safeguards where the Court would grant a wide
margin of appreciation and conduct a less stringent proportionality analysis or none at all.75
Where the Court is unable to engage on the substance of a decision, it can still review whether the state has struck a fair balance between competing rights by assessing the extent to which the state has complied with its positive or procedural obligations as outlined in the Court’s case law.
68 Popelier, Preliminary Comments, p.262.
69 Öneryıldız v. Turkey App No 48939/99 [2004] ECHR 657 at [97].
70 Hatton v. United Kingdom App No 36022/97 [2003] ECHR 338. Dubetska and Others v Ukraine App No 30499/3
(ECtHR, 10 February 2011).
71 Hatton v. United Kingdom App No 36022/97 [2003] ECHR 338. 72 Ibid. at [129].
73 Ibid. at [130].
74 Popelier and van de Heyning, Procedural Rationality.
75 Arnardóttir, O. M. (2017). The ‘Procedural Turn’ under the European Convention on Human Rights and Presumptions of
Convention Compliance. 15 IJCL, p.14. See also. Powell and Rayner v. United Kingdom App No 9310/81 (A/172) [1990]
2.4 Procedural Review Strictu Sensu
The second type of semi-procedural review involves the quality of national decision-making influencing the Court’s review of the proportionality or reasonableness of a measure.76 In
determining the scope of the margin of appreciation applicable to a Respondent state, the Court in Giacomelli v Italy states, the Court “…must therefore examine whether due weight was given to the applicant’s interests and whether sufficient procedural safeguards were available”.77 The
Court finds procedural safeguards lacking in that case. No margin is granted.78 The procedural
quality of a domestic process may therefore influence the margin of appreciation doctrine. Having established a possible relationship between semi-procedural review and the margin of appreciation, the foregoing analysis is concerned with the nature and scope of that relationship.
2.4.1 Illusory Deference
Regarding “…the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.”79 In Buckley v United Kingdom, the Court found the
applicant was entitled to an appeal, which included the appraisal of a qualified independent expert, to whom the applicant was entitled to make direct representations.80 Subsequent judicial
review by the High Court was also available to the applicant.81 Briefly traversing the findings of
two independent inspectors,82 the reasoning of the Secretary of State,83 alternatives offered to the
applicant,84 and having regard to the nominal amount the applicant was fined for not complying
with the notice,85 the Court finds, “…the procedural safeguards provided for in the regulatory
framework were therefore such as to afford due respect to the applicant’s interests under Article 8 (art. 8).” The Court reviews in abstracto the balancing of competing interests by the local planning authority and concludes, “…it is not the Court's task to sit in appeal on the merits of
76 Ibid., pp.5-6: “[T]he Court emphasises the quality of national decision-making processes as an element that
influences its own review of the proportionality or reasonableness of a contested measure.”
77 Giacomelli v. Italy App No 59909/00 (ECtHR, 2 November 2006) at [84]. 78 Ibid. at [90] through [94].
79 Buckley v. The United Kingdom App. No. 20348/92 [1996] ECHR 39 at [79]. 80 Ibid. 81 Ibid. at 79. 82 Ibid. at [80] and [82]. 83 Ibid. at [80]. 84 Ibid. at [81]. 85 Ibid. at [83].
that decision.”86 The Court does not consider the effect of the policy on the applicant’s Article 8
rights in concreto. Instead, it relies almost entirely on the degree of procedural regularity exhibited at national level. In fact, Judge Repik in his dissenting opinion, criticises the national authorities for failing to consider the applicant’s case in terms of a right to be protected by the Convention,87 particularly given her special vulnerability as a Gypsy minority.88 Viewed in this
light, the Court’s apparent deference to the national authorities is to be considered remarkable. In Noack v Germany89 the Court finds the permanent relocation of a Sorbian population in Horno
was “…not disproportionate to the legitimate aim pursued in view of the margin of appreciation which the States are afforded in this sphere.”90 Notably, the Court refers to the Sorbs
collectively as opposed to the applicants individually throughout its assessment, stating ab initio, “…the vast majority of the applicants are members of the Sorbian community of Horno.”91 In a
case where minority rights were allegedly infringed, the Court’s assessment is notably abstract. The Court notes the special protection afforded Sorbs by the Constitution of Brandenburg.92 It
acknowledges the deliberative process which preceded the law in question as well as the formation of a state commission to hear “…submissions in public from the representatives of associations, interest groups, research institutes and legal experts…” before the law was passed.93
The Constitutional Court “…ultimately held that the… the legislature had weighed the State’s objectives of protection, conservation and maintenance…” of the Sorbs “…against the objectives of structural development, job protection and securing energy supplies.”94
Without inquiring into the individual circumstances of each of the applicants, or rather the effect the law would have on them individually, the Court takes a broad-brush approach, concluding the state had passed law “…to preserve and sustain the village community and the Sorbian cultural identity…” by relocating them close to where they originally settled so they might
86 Ibid. at [84].
87 Ibid., Partly Dissenting Opinion of Judge Repik. 88 Ibid.
89 Noack v. Germany App No 46346/99 (ECtHR, 25 May 2000). 90 Ibid. at [1].
91 Ibid. The applicants are referred to only once in the Court’s proportionality assessment; the “…applicants were
able to challenge the decrees… and to lodge appeals with the Constitutional Court… contesting the constitutionality of…” the law.
92 Ibid. 93 Ibid. 94 Ibid.
continue to “…live in the same region and the same cultural environment… where their language is taught… and used… and where they will be able to carry on their customs and… attend religious services in the Sorbian language.” The Court does not address on a more concrete level - i.e. with recourse to studies or impact assessments as in Hatton - how the law will achieve its aims. Despite accepting how “indisputably painful” the displacement would be for them, the Court does not consider the impact of the law on applicants in an individual sense.95
In contrasting the Court’s deferential tact in Buckley and Noack with its concrete analysis in Hatton, Dubetska and Tysiac̨ a relationship between the procedural quality of domestic decision-making and the intensity of the Court’s review seems clear. However, the relationship is observed in those cases where the Court would grant a wide margin of appreciation (as to substance) anyway.96 If this is true, semi-procedural review is not influencing the margin of
appreciation at all. It remains to be seen still whether it is anything more than rights-enhancing.
2.4.2 Leniency of Review
Notwithstanding the positive inferences it draws from the domestic procedure, the Court in Hatton still conducts a light-touch proportionality assessment of its own.97 The Court highlights
deficiencies in the evidence. It resolves these with reference to the various studies which accounted for the concrete effects of the night flights scheme on the applicant. It notes the paucity of evidence in relation to overnight noise quality as creating “…difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate,”98 and the
absence of “…specific indications about the… cost of eliminating specific night flights.”99
The next series of cases concern decision-making by domestic courts, though, the same minimum standards should apply in principle to administrative bodies and national legislatures.100
The Court must establish there exist no “…cogent elements…” that would lead it to depart from the domestic courts’ assessment.101 In Austin and Others v United Kingdom the Court finds
95 Ibid.
96 Sahin v. Turkey, App No 44774/98 [2005] ECHR 819 at [109]; Noack v. Germany App No 46346/99 (ECtHR, 25
May 2000) at [1].
97 Ibid. at [122]-[127].
98 Hatton v. United Kingdom App No 36022/97 [2003] ECHR 338 at [124] 99 Ibid. at [126].
100 Brems, E. and Lavrysen, L. (2013). Procedural Justice in Human Rights Adjudication: The European Court of Human
Rights. 35 Human Rights Quarterly 176-200, p.190-198.
“…no reason to depart from the judge’s conclusion…” and performs its own (less concrete) proportionality assessment “…on the basis of the facts found by the trial judge”.102
The Court will not revisit the balance struck by domestic courts where these have “carefully balanced” competing interests and applied “…the Court’s relevant case-law.”103 In Von Hannover
(No 2) the national courts had complied with their positive obligations under Article 8.104 The
Court responds; (a) granting a wide margin of appreciation,105 and (b) it does not conduct any
real in concreto proportionality assessment of its own, relying solely on positive inferences drawn from the national courts’ application of its Article 8 criteria. No dissenting opinions are to be found in Von Hanover (No 2). The Court defers completely to the national courts.106
Evidently there are inconsistencies in the Court’s application of its adapted margin of appreciation doctrine for it defers partially where perhaps it should defer completely. In MGN v United Kingdom107 the Court holds all three domestic courts which examined the case reflected the
reasoning of the Court in its Von Hannover decision.108 The Court canvasses the detailed and
lengthy judgments of the High Court,109 Court of Appeal110 and House of Lords,111 and finds it
would require “strong reasons” to substitute its own view given the House of Lords had struck a fair balance between the rights in question.112 The Court nevertheless conducts a targeted
(though not holistic) in concreto review of the reasons advanced by the law lords, briefly weighing the key concerns of Ms Campbell vis-à-vis the public interest. It stops short of engaging normatively on the national courts’ balancing of competing interests under Articles 8 and 10.
102 Austin and Others v United Kingdom App No 39692/09 [2012] ECHR 459 at [66] and [67]. 103 Von Hannover v. Germany (no 2) App No 40660/08 [2012] ECHR 228.
104 Ibid. at [109]-[113]; Axel Springer AG v. Germany App No 39954/08 [2012] ECHR 227 at [89]-[95]. 105 Ibid. at [124]-[126].
106 See also. MGN v. United Kingdom App No 39401/04 [2011] ECHR 66 at [150] and [155]; Turgut Aksu v. Turkey
App No 8680/09 [2011] ECHR 449 at [67]-[68]: In these cases, the presumption holds true and the Court refrains from conducting an in concreto proportionality assessment.
107 Ibid. 108 Ibid. at [147]. 109 Ibid. at [13] through [19]. 110 Ibid. at [20] through [24]. 111 Ibid. at [25] through [55]. 112 Ibid. at [150].
On similar lines in Axel Springer,113 the Court finds “…no reasonable relationship of
proportionality between… the restrictions imposed by the national courts [and] the legitimate aim pursued.”114 The Court places a foot in both camps; (a) reviewing in abstracto the application
by the national courts of the Court’s criteria, concurring with them on some points115 and
substituting its own view on others,116 and (b) conducting its own in concreto et de novo
proportionality assessment with reference to three of its semi-procedural Article 8 criteria.117
In dissent, five judges criticised the Court for examining anew, facts and circumstances the national courts had, “…with the added benefit of their direct examination of the context in which the events occurred,”118 ‘balanced’ “…in a way that was not manifestly unreasonable.”119
The Court had not established the national courts had failed “…to balance the conflicting interests or to apply the relevant criteria in doing so. They made no manifest error of appreciation; nor did they fail to consider all the relevant factors.”120 The Court had simply
reached a different conclusion to that of the national courts based on its own fifth-instance consideration of the merits. Indeed, those dissenting judges reiterated an important truth, “…it is not the task of this Court to assume the role of the competent national courts in determining the merits of the case, but rather to review the decisions those courts render in the exercise of their powers of appreciation.”121 More lenient review involves tailoring the width of the margin
of appreciation to fit the degree of care a decision-maker exercised in striking a fair balance between competing interests, and how diligently it applied the Court’s principles and case law. In Ndidi v. the United Kingdom122 the Court solidifies its position.123 Semi-procedural review does not require the Court “…to conduct the Article 8 proportionality assessment afresh.”124 Where
national authorities have “…thoroughly assessed… personal circumstances, carefully balanced
113 Axel Springer AG v. Germany App No 39954/08 [2012] ECHR 227. 114 Ibid. at [110].
115 Ibid. at [100].
116 Ibid. at [97]-[99] and [102]-[107] 117 Ibid. at [101], [108]-[109].
118 Axel Springer AG v. Germany App No 39954/08 [2012] ECHR 227, Dissenting Opinion of Judge López Guerra
and others, at [40].
119 Ibid. at [40]. 120 Ibid. at [40]. 121 Ibid. at [38].
122 Ndidi v. United Kingdom App No 41215/14 [2017] ECHR 781. 123 Ibid. at [76].
the competing interests,” and accounted for “…the criteria set out in [the Court’s] case law,” their conclusions should not be subject to the Court’s own assessment of the factual details of proportionality, unless the former are shown to be arbitrary or manifestly unreasonable.”125 The
Court defers completely to the national authorities stating, “…every decision-making body assessed the proportionality of [the Applicant’s] deportation with regard to this Court’s relevant principles.”126 The Court concludes, “…all the domestic decision-makers – gave thorough and
careful consideration to the proportionality test required by Article 8 of the Convention”.127
The Court has declined to substitute its conclusions for those of the domestic courts in two further cases concerning the balancing of private and family life (Article 8) and prevailing public interest.128 In these cases the Court does not conduct a proportionality assessment in concreto but
raises additional points in abstracto that more or less corroborate the findings of the national court.129 The Court has endorsed a similar approach in cases under Articles 10 and 11.130
2.4.3 General Measures
Deference to national legislatures has been observed in cases concerning general measures. A state can adopt general measures which apply to pre-defined situations regardless even if this might result in individual hard cases.131 General measures may avoid unnecessary or vexatious
litigation, expense and delay.132 General measures may infringe rights; a blanket ban
disenfranchising all convicted prisoners of the right to vote for example.133 The core issue is
whether, in adopting the particular general measure and striking the balance it did, the legislature
125 Ibid. 126 Ibid. 127 Ibid. at [81].
128 Hamesevic v. Denmark App No 25748/15 (ECtHR, 16 May 2017) at [43]; Alam v. Denmark App No 33809/15
(ECtHR, 6 June 2017) at [35].
129 Hamesevic v. Denmark App No 25748/15 (ECtHR, 16 May 2017) at [43] through [45]; Alam v. Denmark App
No 33809/15 (ECtHR, 6 June 2017) at [34].
130 Arrêt Öğrü et Autres v. Turquie App No 60087/10 (ECtHR, 19 December 2017) at [69] through [71] ; Terentyev
v. Russia App No 25147/09 (26 January 2017) at [24]; Annen v. Germany App No 3690/10 (26 November 2015) at
[73].
131 Ždanoka v. Latvia App No 58278/00 [2006] ECHR 231 at [112]-[115].
132 James and Others v United Kingdom App No 8793/79 (A/98) [1986] ECHR 2 at [68]: Removing requirement for
case-by-case independent review.
133 Hirst v. the United Kingdom (No. 2) App No 74025/01 [2005] ECHR 681; Scoppola v. Italy (No. 3) App No 126/05
acted within the margin of appreciation afforded to it.134 In assessing whether the balance was
fairly struck the Court peers into legislative debates, expert reports, and case studies inter alia.135
In Animal Defenders v United Kingdom, the Court divines a bespoke touchstone for general measures. It holds, “…the more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact [on the applicant] in the particular case,”136 and “…in order to determine the proportionality of a general measure, the Court must
primarily assess the legislative choices underlying it”.137 This is in essence, leniency of review.138
Noting the “…particular competence of Parliament and the extensive pre-legislative consultation…” the Court concludes, “[b]oth courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment[139] and carefully
applied that jurisprudence to the prohibition.”140 The Court ascribes “…considerable weight to
these exacting and pertinent reviews, by both parliamentary and judicial bodies”.141 The Court
proceeds to conduct a light-touch proportionality assessment of its own.142 The Court
substitutes some of its own findings for those of the national courts.143 The Court is able to
134 Animal Defenders v. United Kingdom App No 48876/08 [2013] ECHR 362 at [108].
135 Hatton v. United Kingdom App No 36022/97 [2003] ECHR 338 at [128]: “A governmental decision-making process
concerning complex issues of environmental and economic policy… must necessarily involve appropriate investigations and studies in order to… strike a fair balance between the various conflicting interests at stake.” Hirst
v. the United Kingdom (No. 2) App No 74025/01 [2005] ECHR 681 at [77] and [78]: Where “…the legislature and
domestic courts have considered the matter and there is no clear consensus among Contracting States, it must be within the range of possible approaches to remove the right to vote from any person whose conduct was so serious as to merit imprisonment.” The Court will search for “…evidence that Parliament… sought to weigh the competing interests or to assess the proportionality of a blanket ban…” in this context of disenfranchisement.
136 Animal Defenders v. United Kingdom App No 48876/08 [2013] ECHR 362 at [109]. 137 James and Others v United Kingdom App No 8793/79 [1986] ECHR 2 at [51]. 138 See. [1.4.2] above.
139 Verein gegen Tierfabriken v. Switzerland App No. 24699/94 [2001] ECHR 412 at [71]: Where the Court found the
margin of appreciation was reduced, “…since what is at stake is not a given individual’s purely “commercial” interests, but his participation in a debate affecting the general interest”. The freedom afforded by Article 10 is subject to exceptions; see. Hertel v. Switzerland App No 59/1997/843/1049 Reports 1998-VI, p. 2329-2330: Such exceptions must be established convincingly particularly where the nature of the speech is political.
140 Animal Defenders v. United Kingdom App No 48876/08 [2013] ECHR 362 at [115]. 141 Ibid. at [116].
142 Ibid. at [117]-[125].
focus on the justifications underlying the general measure whilst abandoning its traditional approach of inquiring into the concrete application or impact of the measure on the applicant. Having drawn positive inferences from the domestic procedure in Garib v the Netherlands, the Court turns to assess the effects of the legislation upon the applicant in an individual sense.144
The Court does so in an abstract fashion and has been accused of cherry-picking; examining “…only those elements that support its findings, leaving aside essential elements that do not”.145
Despite having drawn positive inferences from the domestic process the Court continues to conduct an in concreto assessment of its own, accounting for the way in which the measure effected the individual. Granted the general measures line of authority requires refinement. Still, it demonstrates the relationship between semi-procedural review and the margin of appreciation.
2.4.4 Rights Enhancement or Leniency of Review
Minimum standards of evidence-based decision-making prescribe guidelines to improve the quality of decision-making. Minimum standards determine the nature and content of the rights to be balanced (e.g. the Court’s principles as outlined in its decisions)146 and how the national
authorities are to go about balancing them (e.g. the evidential standard required to establish the rights in question and strike a fair balance which accounts for the applicant’s concrete case).147
Minimum standards enhance the protective scope of the Convention; but more specifically, the scope of individual rights. Procedural obligations give complainants and the Court an alternative basis to censure state conduct which falls below minimum Convention guarantees. National authorities are expected to observe these procedural safeguards in striking a fair balance between competing rights.148 The procedural rights approach enhances the protective scope of rights,
procedural obligations linking with their substantive counterparts to strengthen the base right.149
The issue of its classification as an independent rights-enhancing standard of review aside, semi-procedural review has influenced the leniency of the Court’s review. Where national authorities
144 Garib v. the Netherlands App No 43494/09 [2016] ECHR 211 at [158]-[166].
145 Valeska, D. (2016). Strasbourg fails to protect the rights of people living in or at risk of poverty: the
disappointing Grand Chamber judgment in Garib v the Netherlands. Strasbourg Observers. Viewed 28 April 2018. <https://strasbourgobservers.com/2017/11/16/strasbourg-fails-to-protect-the-rights-of-people-living-in-or-at-risk-of-poverty-the-disappointing-grand-chamber-judgment-in-garib-v-the-netherlands/#comments>.
146 Ndidi v. United Kingdom App No 41215/14 [2017] ECHR 781. 147 Hatton v. United Kingdom App No 36022/97 [2003] ECHR 338.
148 Dubetska and Others v Ukraine App No 30499/3 (ECtHR, 10 February 2011) at [143]. 149 Popelier and van den Heyning, Procedural Rationality, 9 EuConst 230.
observe the minimum standards, in circumstances where they would otherwise have a wide margin of appreciation, the Court has shown marked restraint, abandoning its traditional review. The procedural rights approach as an independent, interpretive limb of the Court’s review, separate from the margin of appreciation, finds support in the increase in number of procedural obligations. Still, it is difficult to reconcile the frequent concurrence of the Court drawing positive inferences from domestic procedure, granting a wide margin and relaxing its own review, without linking the Court’s focus on minimum standards with its proportionality inquiry. Semi-procedural review presents a continuum of conditional deference whereby the strictness or leniency of review turns on the quality of decision-making at national-level. A widening of the margin of appreciation is observed where the decision-making of national authorities evidences compliance with the minimum standards of evidence-based review; including application of the Court’s settled principles and a careful, evidence-based, balancing of competing interests. Complete deference is rarely observed and is perhaps limited to those cases where the national authorities observe all the minimum standards of evidence-based decision-making and strike a fair balance between rights, the Court’s settled principles and the concrete case of the applicant.
3 W
HENCE THE
P
ROCEDURAL
T
URN
?
The case analysis in Chapter 2 showed how the margin of appreciation is influenced by the quality of national decision-making.150 The Court will water-down and some cases even abandon
its own proportionality assessment depending on how Convention principles are applied, competing rights are balanced, and individual interests are accounted for in evidence-based judicial, legislative and administrative processes.151 This Chapter asks why a relationship exists
150 See Chapter 2.
151 Semi-procedural review was introduced into the ECHR system in the context of balancing competing private
interests under Articles 10 and 8. Von Hannover v. Germany (no 2) App No 40660/08 [2012] ECHR 228 at [107] and [108]: “Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts. See also. MGN v. United Kingdom App No 39401/04 [2011] ECHR 66 at [150] and [155]; Palomo
Sánchez and Others v. Spain App No 28955/06 [2011] ECHR 1319 at [57]; Turgut Aksu v. Turkey App No 8680/09
[2011] ECHR 449 at [67] and [68]: “If the balance struck by the national judicial authorities is unsatisfactory … the margin of appreciation accorded to the decisions of the national courts will be a narrow one.” “[T]his presupposes that an effective legal system was in place and operating for the protection of the rights falling within the notion of “private life”, and was available to the applicant.” Axel Springer AG v. Germany App No 39954/08 [2012] ECHR 227 at [110]: “[T]he grounds advanced by the respondent State, although relevant, are not sufficient to establish that the interference complained of was necessary in a democratic society.” Recent cases under Articles 8 and 10 include; (i) those where positive inferences were drawn: Verlagsgruppe Droemer Knaur GMBH and Co. KG v. Germany App No 35030/13 [2017] ECHR 923 at [61]; and (ii) negative inferences: GRA Stiftung Gegen Rassismus UND Antisemitismus v.
between semi-procedural review and the Court’s reformulation of the margin of appreciation doctrine and normatively examines the context behind the procedural turn, semi-procedural review and leniency of review. What dynamics have influenced the procedural turn? Have those dynamics brought about a reformulation of the margin of appreciation and leniency of review?
3.1 Evidence-Based Policy Models
Evidence-based regulation, now more prevalent in the EU and Convention member states, has contributed to the development of semi-procedural review. However, semi-procedural review has moved from the Court and evidence-based regulation does not explain which features of a domestic process the Court looks for, or to what extent, when assessing the quality of decision-making. Minimum standards do. Regulatory tools prescribe abstract formulas and not concrete standards of evidence or procedure. For example, the Court has drawn positive inferences from domestic processes where “democratic consensus” encompassing a “…broad spectrum of political opinion”152 was achieved, a deliberate weighing of competing interests occurred,153 and a
fair balance between competing interests was struck.154 It is ultimately the Court that decides
which features of a domestic process must be present to evidence quality decision-making. The Court’s development of procedural obligations is evidence of this. Evidence-based decision-making has shaped semi-procedural review, but it is systemic factors that have driven its growth.
3.2 Improving Efficiency and Subsidiarity or Convention Compliance
At the end of the Cold War Era the geo-political makeup of Eastern Europe underwent momentous upheaval while the European market economy flourished.155 The ECHR became
the vehicle through which fledgling democracies evidenced their desire to integrate and better protect minorities and other rights.156 Strasbourg, the guardian of minorities and fundamental
152 The National Union of Rail, Maritime and Transport Workers v. United Kingdom App No 31045/10 [2014] ECHR 366 at
[99].
153 Anchugov and Gladkov v. Russia App No 11157/04 (ECtHR, 4 July 2014) at [109]. Regarding a blanket ban on
prisoner voting rights, the government could produce no evidence of competing interests having been weighed or the proportionality of the measure on convicted prisoners having been assessed prior to the enactment of the constitutionally entrenched measure; and at [85]: The Government sought to adduce evidence of the nationwide public debate and expert input, yet, this did not stop the Court from finding a violation.
154 Shindler v. The United Kingdom App No 19840/09 [2013] ECHR 423 at [117].
155 Stiansen, Ø. and Voeten, E. (2018). Backlash and Judicial Restraint: Evidence From the European Court of Human Rights.
SSRN. Viewed 1 January 2018. <https://ssrn.com/abstract=3166110>.
