Since the turn of the century, the approach of the European Court of Human Rights to reviewing individual cases has taken a procedural turn. As well as analysing the substantive claims of individuals, the Court is increasingly building into its analysis a review of the applicable domestic process for protecting human rights. This shift in approach will be referred to as the Court’s current methodology. The greater use of this form of review, and its normative justification, has been discussed elsewhere. Indeed, although the adoption of this methodology may be understood broadly as an implementation of the principle of subsidiarity, it has also been observed to mark a shift away from the orthodox approach to subsidiarity. This book thus seeks to contribute to the understanding of process-based review by conducting a doctrinal analysis of two key aspects of the Court’s process-based methodology. First, the Court’s engagement with the adequacy of balancing in light of the Convention of the relevant interests at issue within domestic processes. Second, the development of a process based approach under the rubric of Article 35 of the Convention, entailing the requirement for the exhaustion of domestic remedies. Specifically, these two methodological aspects of the Court’s review will be understood in relation to their evolution within the Convention jurisprudence.
Part II engages with the explicit introduction of the concept of subsidiarity into the Convention system. Part III then turns to consider the development of the Court’s engagement with the adequacy of balancing in domestic processes. This doctrinal analysis reveals that this aspect of the Court’s jurisprudence has three distinct phases, with the most recent phase entailing an emerging rule of law approach. Part IV will then examine the jurisprudential foundations for the Court’s process-based approach towards its assessment under Article 35. This section will also conduct a study of the development of structural guidance for specific domestic processes under Article 35, using the example of domestic individual complaint mechanisms. Finally, the book will explore the recent operation of process-based methodologies across Articles 5, 10, and 8 of the Convention (Part V), revealing the duality between substance and process-based focuses within the Court’s review under different areas of the Convention. |
