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Home Articles posted by Reto Walther

Procedural Deference at Strasbourg: A Trend Calling for a New Admissibility Criterion?

Published on January 3, 2020        Author: 

This blogpost argues that including an additional admissibility criterion in the European Convention on Human Rights (the Convention) for cases that were carefully dealt with at the domestic level is worthy of serious consideration, if it corresponds to a desirable understanding of the European Court of Human Rights’ (the Court) subsidiarity vis-à-vis the States. In view of the Court’s practice discussed hereinafter, a formal inadmissibility-rule appears preferable over judicial ‘ad-hocery’.

The relevant practice relates to the Court’s ‘procedural turn’: the Court increasingly defers to State authorities on grounds of their diligent decision-making. I argue that the Court does so not only by granting a wide ‘procedural margin of appreciation’, but also by outrightly declaring applications inadmissible. Let me illustrate this with a Danish case (which I further discuss below) concerning an applicant who had obtained a residence permit as an unaccompanied minor and later received an expulsion decision due to his criminal record. The Court, declaring the complaint inadmissible, observed: ‘the domestic courts … carefully balanced the competing interests, took into account the criteria set out in the Court’s case-law and explicitly assessed … Denmark’s international obligations’ (Mohammad, § 35). The Court thus endorsed the domestic courts’ proportionality assessment due to their procedural diligence, instead of and abstaining from engaging itself in any weighing of the applicant’s rights against Denmark’s public order interests.

Although this inadmissibility-practice comes close to full deference on procedural grounds, it has not gained much attention. Neither has a proposal from the Council of Europe’s Steering Committee for Human Rights (CDDH) that suggested a new admissibility criterion corresponding to this practice, but was ultimately discarded.

The case-law

Estimating the prevalence of relevant inadmissibility decisions is laborious due to the number of decisions and their varying language. A number of relevant cases were brought against Denmark under Article 8 by applicants threatened with expulsion. Mohammad, mentioned above, is a good example. Read the rest of this entry…