The European Court of Human Rights’ procedural approach in the age of subsidiarity
  • 1 Utrecht University, the Netherlands

As a result of the emphasis on subsidiarity during the reform process of the European Court of Human Rights and the adoption of Protocol 15 to the European Convention on Human Rights, the Court is said to have entered an ‘age of subsidiarity’. At the same time, scholars have noted a procedural trend in the case law of the Court, referring to the development of procedural requirements and its increased use of procedural-type review. The latter means that the Court looks into the quality, fairness and regulation of the decision-making processes of the national legislative, executive or judicial authorities to determine whether there has been a violation of the Convention. There are indications that both developments – the increased emphasis on subsidiarity and the Court's procedural turn – are related. This raises the question whether procedural-type review is indeed an appropriate method for the Court in this age of subsidiarity. This article addresses this question and argues that the answer to it is more intricate than generally thought. The complexity lies in the fact that the principle of subsidiarity pulls the Court into different directions, as negative subsidiarity requires it to take a deferential position and positive subsidiarity requires it to give protection to Convention rights when states have failed, but also because procedural-type review is a multifaceted approach. The procedural approach relates to a variety of procedural requirements developed by the Court – relating to procedural regularity, procedural rationality and procedural fairness – and the various ways it has applied procedural-type review. By connecting the aspects of subsidiarity with the different elements of the Court's procedural approach, this article aims to provide a more comprehensive and profound understanding of the appropriateness of the Court's procedural turn in this age of subsidiarity.

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