Procedural-Type Review: A More Neutral Approach to Human Rights Protection by the European Court of Human Rights?

Abstract

The European Court of Human Rights appears to be increasingly applying procedural-type review. This means that the Court looks into the quality of the decision-making process of the national legislative, executive or judicial authority to determine whether there has been a violation of the European Convention on Human Rights. This paper addresses the questions whether and to what extent this procedural approach of the Court can be regarded as a more neutral approach towards the political choices of the European States, when compared to an approach where the Court looks into the substantive balance struck in the national authorities’ decisions. For analysing the potential neutrality of procedural-type review, this paper develops a theoretical framework on the basis of Martti Koskenniemi’s theory on the neutrality of international law. On the basis of this framework, it concludes that although procedural-type review as an abstract review method could be considered as a relatively neutral approach of the Strasbourg Court towards the political choices of States, in practice the approach loses much of its initial neutral potential.

Keywords: Procedural review; human rights; European Court of Human Rights; neutrality of international law; neutrality of interpretation techniques and review methods; Martti Koskenniemi