The 'procedural turn' under the European Convention on Human Rights and presumptions of Convention compliance

摘要

The literature on the "procedural turn" in the case-law of the European Court of Human Rights (ECtHR) is divided on the question of whether positive inferences from due procedural diligence at the national level can go so far as to bar the Court's own normative engagement on the issue in question (complete deference). After giving a conceptual clarification of the procedural turn and the margin of appreciation doctrine, this article reports a case law analysis which establishes that while the ECtHR increasingly relies on the quality of domestic procedures under the systemic element of the margin of appreciation, this usually only leads to partial deference as the Court also engages in its own normative assessment on the merits of the case. Interestingly, however, the case-law analysis also brings three distinct lines of case law to light (the "fourth instance doctrine", legitimate aims behind limitations on rights, and balancing rights) where the systemic margin of appreciation has been relied upon to create rebuttable presumptions of European Convention on Human Rights compliance, which can effectuate complete deference on certain elements of assessment. The article concludes with some critical comments on complete deference on the proportionality assessments traditionally considered to be at the heart of the Court's own judicial task.