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

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.

The case concerned an Algerian who received a residence permit in Denmark as a 14-year-old unaccompanied minor. He quickly accumulated a criminal record. Over 5–6 years he committed property offences, assault, robbery, drug offences, and absconded, recidivating during probation and suspended expulsion orders and despite an array of therapeutic as well as integrative measures. While in prison and awaiting expulsion, he applied to the Court relying on the right to respect for his private life (Article 8). The Court’s 3-judge committee decision first restates in indents the factors that govern this type of case according to established case-law (see Üner and Maslov): on one side of the balance stands the applicant’s wrongdoings, on the other his integration in and ties with his home and host country. Then, the Court briefly reviews the relevant domestic judgments. It notably observes: the last domestic instance ‘took into account that the crime [robbery] was serious, and committed while on probation for two suspended expulsion orders. Thus … based on an overall assessment, it found that an expulsion order would not be contrary to Denmark’s international obligations’ (§ 33). After recalling the most important facts, the Court concludes: ‘the domestic courts made a thorough assessment of the applicant’s personal circumstances, carefully balanced the competing interests, took into account the criteria set out in the Court’s case-law and explicitly assessed whether the expulsion order could be deemed to be contrary to Denmark’s international obligations’ (§ 35). Finding no ‘strong reasons to substitute its view for that of the domestic courts’, it declares the application inadmissible (§§ 35–36).

The Court proceeds similarly in other subject-matter areas, namely conflicting rights-cases under Article 8 and Article 10. Surprisingly, similar process-based argumentation can be discerned even in refoulement-cases under Article 3, which hinge not on a balancing act, but on an assessment of facts concerning the applicant’s personal circumstances and the situation in the receiving state. A further quite different example is Neagu v Romania concerning reasonable accommodation:

The applicant, dependent on a wheelchair and an assistant, complained about access facilities in her apartment building invoking her right to private life and the prohibition of discrimination. The Court, in a 7-judge chamber decision, first recalls that ‘personal autonomy is an important principle’, Article 8 may entail positive obligations which require a fair balance between the competing interests, and Article 14 requires the States ‘to make reasonable accommodation in the case of people with disabilities’ (§§ 24–26). Then, it briefly reviews the domestic courts’ findings of facts and law. It approves their on the spot examination of the situation (§ 29) and, as regards the fair balance-test, states: ‘the domestic courts weighed the hardship endured by [the applicant] against the interests of the other inhabitants of her building … The State authorities were mindful of the applicant’s situation and of her right to receive special protection … the courts gave convincing reasons when explaining why the measures requested by the applicant would be excessive’ (§ 30). Declaring the complaint inadmissible, it concludes: ‘the Court does not find any reason … to substitute its view for that expressed in the domestic decisions … the domestic courts struck a fair balance between the competing interests, took account of the applicant’s special needs and gave relevant and sufficient reasons for their decisions’ (§ 31).

In this type of inadmissibility decision, the Court abstains, almost completely, from substantive review- from its own balancing of the competing interests. However, sometimes (see §§ 43–44 and 44–45) it is difficult to fully disentangle and determine the source and weight of its considerations. So, it could be that the Court’s literal reasoning occasionally conveys more deference than it actually applies. Nevertheless, the Court may be ready to almost-completely waive its substantive review, especially in subject-matters that are governed by established criteria structuring the fair balance-test—if the national authorities carefully applied the Convention standards. The non-appearance of the margin of appreciation in some of these cases suggests as much: there is no need for a margin calibrating the Court’s substantive review if there is no such review. Noteworthy is, finally, that these decisions concern diverse States and originate in different Court sections and formations. All of this suggests that they are potentially countless, including unpublished single judge-decisions.

The context: the Court’s ‘procedural turn’

The Court increasingly grants a wide margin of appreciation, i.e. applies deferential review, in cases that were subject to a careful proportionality assessment at the domestic level. The best-known forerunners of this approach are von Hannover (no 2) and Animal Defenders International. This ‘procedural turn’ is controversial. Some fear the Court abandons its responsibility. Others spot a welcomed implementation of the principle of subsidiarity, according to which the Court’s human rights protection is subsidiary to the States’. Yet, scholars tend to overlook the Court’s probably strictest application of (semi-)procedural review: inadmissibility decisions, such as those discussed above.

The States welcomed this case-law at the 2012 Brighton Conference (para 15d). However, they did not endorse it to the fullest possible extent: they rejected the CDDH’s idea of a new admissibility criterion for this type of decision (see Milner, p 30). Presumably, some States feared creating a legal basis for the Court’s procedural review, hoping to reap the benefits of procedural deference without being explicitly subject to such scrutiny.

The CDDH (p 37) proposed to declare an application inadmissible:

if it is substantially the same as a matter that has already been examined by a domestic tribunal applying the rights guaranteed by the Convention and the Protocols thereto, unless the Court considers that:
a) the national tribunal manifestly erred in its interpretation or application of the Convention rights;
b) or the application raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto.

Currently, the Court, lacking a specific alternative, (ab-)uses the ‘manifestly ill-founded’-admissibility criterion for its pertinent practice.

The CDDH proposal and subsidiarity

Given the reality of the Court’s practice, the CDDH proposal should be re-considered. If it fits a desirable notion of subsidiarity, a formal admissibility-rule might be preferable over judicial ‘ad-hocery’.

The principle of subsidiarity allocates authority between the Court and the States. The Convention system is complex and so must a meaningful conceptualisation of subsidiarity be. First, the principle must allocate authority not only away from the Court (negative subsidiarity), but also to the Court (positive subsidiarity), as has been explained on this blog. Second, it should operate with procedural (concerning the domestic procedure) and substantive (concerning the outcome) criteria. Third, it should conform to the rule of law.

Beginning with this last point, the Court’s current practice of declaring a large part of all applications manifestly ill-founded, although they are inadmissible for various different reasons (nos. 264–288), is questionable from a rule of law-perspective. It damages legal certainty and risks arbitrariness. A new admissibility criterion could bring partial improvement. It would compel the Court to be clearer and more transparent about why it rejects or admits a complaint. The CDDH proposal could enhance the States’ ability to improve their domestic decision-making and allow applicants to better assess their case’s admissibility.

Further, the CDDH proposal accounts for procedural and substantive criteria of subsidiarity. Procedurally, it allows the Court to defer to sound domestic decision-making, to rebuke the opposite, and hence to promote good procedures. Substantively, it need not do away with the Court’s responsibility. Although a proportionality exercise is not arithmetic, there are impermissible outcomes, substantive ‘red lines’. The CDDH proposal’s ‘manifest error’-caveat obligates the Court to intervene when a domestic decision falls outside the permitted range.

Emphasising the Court’s responsibility to intervene, the CDDH proposal accounts for positive subsidiarity. It would, by contrast, constrain the Court (negative subsidiarity) when the national authorities properly dealt with a case and respected the substantively permissible. Unless one naively (and against the Court’s view, § 35) assumes that a proportionality assessment is arithmetic with only one correct result, it makes little sense if the Court re-balances the same considerations that were duly assessed by at least two domestic instances. It is neither obvious that the Court is epistemically better than the domestic courts at the same normative balancing-exercise nor, therefore, why it should replicate it. Yet conversely, retaining the domestic decision has an evident advantage: it shows respect and trust to the States as the ‘first guardians’ of human rights, ideally promoting a national culture of human rights responsibility.

Overall, the CDDH proposal could encourage the Court to send clear signals to States about the quality of their domestic decision-making. The Court should thus be quite explicit about why it defers to a State or, conversely, what it criticises.

Beware of some misconceptions. First, the CDDH proposal would not imply general assessments of the States’ systems. The Court’s concern would remain how a State’s system functioned in a certain case. Second, the CDDH proposal would not impair the ‘right to individual petition’. There is no right to a judgment (p 675), only to submit an application. Third, the CDDH proposal is not meant to limit the Court’s competence to remedy domestic human rights problems. It should sift out (alleged) human rights issues that were properly dealt with domestically and that are, therefore, not legal issues for the Court.

Conclusion

A new admissibility criterion must not change the function of the Court. It should merely emphasise and put on a distinct legal basis what increasingly becomes clear legal practice: the Convention machinery is subsidiary and should not become fully engaged when a State’s human rights protection worked well.

An admissibility criterion along the lines of the CDDH proposal could be a step towards a sound implementation of subsidiarity properly understood. First, it could reduce the scope of the ‘manifestly ill-founded’-inadmissibility criterion as a critère fourre-tout, thus increasing legal certainty. Second, encouraging domestic human rights diligence, it could strengthen the States’ role as the first-line defenders of Convention rights. Third, it could confirm the Court’s responsibility for cases that do not warrant deference because of domestic procedural or substantive failure.

In other words, it could advance an embedded Convention system, which ‘bolster[s] the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the [Court’s] deference to national decision-makers is appropriate’ (p 125). Having called for subsidiarity, the States should remain faithful: those supporting subsidiarity without the malicious intent of shifting the Convention system unconditionally towards the States have nothing to fear: the admissibility criterion discussed here would either reward their good efforts with deference or help them become better first-line defenders of human rights that do deserve deference—in Vice-President Judge Spano’s words, it could ‘incentivise national authorities to fulfil their obligations to secure Convention rights, thereby raising the overall level of human rights protections in the European legal space’ (p 492).