The ‘Logics’ of Procedural-Type Review by the European Court of Human Rights
Forthcoming, Janneke Gerards and Eva Brems (eds), Procedural Review in European Fundamental Rights Cases, Cambridge University Press (2017), ISBN: 9781107183773
16 Pages Posted: 30 Dec 2016
Date Written: December 29, 2016
In the case law of the European Court of Human Rights (ECtHR, or ‘the Court’), a ‘procedural turn’ can be noted. That is to say it seems that in its assessment of the compatibility of a particular measure or situation with the European Convention on Human Rights (ECHR, or ‘the Convention’) the Court increasingly includes an appreciation of the quality of the domestic process that lead to this measure or situation. This concerns administrative and legislative processes, as well as procedures before domestic courts. The latter have been involved in most cases, given the admissibility requirement of the exhaustion of domestic remedies. Scholars have noted this procedural turn, and have started to analyse it, mapping and assessing its various manifestations.
Building on the mapping exercises conducted by other scholars, this paper adopts a normative approach. It explores several potential motivations for the Court’s turning to a quality assessment of domestic procedures and processes. In addition to assessing the merits of each of these motivations, the paper explores their respective implications as concerns the desirable nature and modalities of such quality assessment.
Keywords: European Court of Human Rights, procedural review, judicial review
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