Organised Retreat? The Move from ‘Substantive’ to ‘Procedural’ Review in the ECtHR’s Case Law on the Margin of Appreciation
24 Pages Posted: 31 Dec 2015
Date Written: December 31, 2015
This paper will address the key judgments discussed by Judges Spielmann and Spano as indicating the development of a ‘systemic’ margin of appreciation in an ‘age of subsidiarity,’ and the literature on the ‘procedural turn’ in the European Court of Human Rights’ case law. Taking a fresh look at the different ways proceduralisation presents itself at the Court, it will be argued that this trend has wider contours than previously identified in the literature, and a clear constitutional import through redefining the Court’s jurisdiction and role vis-à-vis other actors in the European system for the protection of human rights. After identifying and analysing key examples of this wider trend, the Court’s recent case-law indicating a procedural turn under the margin of appreciation doctrine will be assessed against the background of recent political and judicial criticism of the Court, and evaluated from the perspective of whether it signals organised retreat and a weaker Court – or the beginning of a revival for the overburdened and harassed Court.
Keywords: Margin of appreciation, subsidiarity, deference, procedural review, substantive review, reform of the European Court of Human Rights
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