Process-based fundamental rights review: what about the applicant?

L.M. (Leonie) Huijbers

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What if you see a runaway train moving toward five people tied-up on a track. Would you pull a lever to redirect the train to another track? Yes, of course. No doubt about it. But what if there was another person tied-up on the other track? The decision whether to pull the handle or not becomes inevitably harder. This famous philosophical conundrum applies in a similar, yet – fortunately – less gruesome way, to the European Court of Human Rights. The backlog in cases, the failure of states to implement the Court’s judgments, the increasingly harsh (political) criticism on the Court, and the shortage of resources have put a strain on the proper functioning of the European Convention on Human Rights’ system. This has given rise to the question of whether the Court should continue to provide justice to each applicant, possibly at the cost of the Convention system (track one), or whether it should focus on providing general justice, by ensuring justice for as many individuals as possible, even when it may come at the cost of the applicants before the Court (track two). This dilemma between individual and general justice is also relevant for the Court’s recent procedural turn…

As already addressed in previous Montaigne blogs (here and here), scholars have noted that the Strasbourg Court is increasingly relying on process-based review when deciding on substantive rights. This means that, for example, in determining whether an infringement with the freedom of expression is justified, the Court decides the issue not on the basis of the reasonableness of the decision infringing the right, but rather by assessing whether the decision-making process was fair, reasonable, and diligent. According to several Judges of the Court this procedural approach is applied by the Court in relation to the right to respect for private and family life and the freedom of expression, and it appears that this approach is now also going to be applied in relation to the freedom of assembly and association.

But, how does the Court’s increased emphasis on the national decision-making process relate to the aims of providing individual and general justice? Both elements are part of the Court’s function and find their basis in the Convention’s right to individual petition (Article 34 ECHR) and the Court’s task to oversee States’ compliance with the Convention (Article 1 in conjunction with 19 ECHR). The task of the Court to provide individual justice, means that individuals can claim their right in Strasbourg. From the perspective of general justice, the Court should be less concerned with individual applicants, but rather with achieving a broader goal: the goal of ensuring the protection of Convention rights at the national level, by pressing for ‘fundamental rights proof’ laws, policies and decisions.

Procedural reasoning is held to stimulate such general justice. Scholars have considered the incentivising effects a procedural approach could have on national authorities’ compliance with the Convention (amongst others Arnardóttir, Popelier, and Sathanapally). The Court may be able to nudge national authorities to implement Convention rights and the standards it has developed in its case law, as they may earn (greater) deference for their decisions when preceded by a thorough decision-making process. In other words, if national authorities’ decision-making process is of sufficient quality, then the Court will give the authorities more or even total discretion as to the substance of the decision, whereas if there are procedural shortcomings, the Court will look (more closely) into the reasonableness of the decision. Arguably, if these incentives work, especially if national courts would carry out a Convention-check in their judgments, then this would lead to more and faster protection of fundamental rights in Europe, and thus to an increase of general justice from the perspective of Strasbourg.

This line of reasoning is, however, based on some debatable presumptions. Does procedural reasoning indeed incentivise national authorities to adopt a Convention-compliant approach? Or do we need to relativise the idea that nudging works and accept that procedural reasoning may also lead to procedural window-dressing? And, even if it does work, will better decision-making procedures by national authorities lead to better Convention-proof decisions? Do the rationales ‘better procedure = better outcome’ or, at least, ‘bad procedure = bad outcome’ hold? These presumptions clearly rely upon correlations that are not readily accepted, and are even harder to prove. Whether procedural reasoning would indeed have the desired effect, that is, the increase of (substantive) justice around Europe, is open for debate.

But let’s suppose that these presumptions hold. What does the increase of process-based review by the Strasbourg Court mean for the applicant? Does the focus on incentivising general justice mean a decline of justice for the applicant, as is feared in relation to the Court’s pilot-judgment procedure and the recent Burmych and Others v. Ukraine judgment?

Firstly, some fundamental concerns from the side of the applicant may be mentioned. For the individual applicant the case before the Court may relate to a substantive issue. Often applicants have suffered substantive injustice; they have suffered from physical or mental violence, limitations of their ideas and religious expressions, loss of money, and so on. If applicants are concerned with procedural justice, they will probably argue their case in relation to procedural rights (the right to a fair trial and the right to an effective remedy). When they argue their case under substantive rights instead, their case may be conceived as a case about substantive justice. For example, in the situation where two applicants are evicted from their home and are forced to live on the street, their problem lies (mainly) with the result of the eviction decision, rather than with how that decision was taken. In other words, when applicants are looking for substantive justice, the Court’s findings of procedural injustice may seem insensitive to their needs and wants.

Secondly, applicants may face problems in arguing their case under substantive rights when the Court relies on process-based review. It is not unlikely that the applicants’ arguments focus solely or primarily on the content of the decision infringing their rights, rather than the decision-making procedure. In addition, it may be difficult for applicants to prove that there were procedural shortcomings, and it may be especially difficult to prove that a ‘good’ procedure was merely a cover-up for a bad decision or amounted to procedural window-dressing.

Thirdly, another pragmatic problem may relate to the fact of securing appropriate follow-up of a procedurally reasoned judgment by the Court. Indeed, even if the Court finds a violation of a substantive right on the basis of procedural shortcomings and the national authorities address this shortcoming by redoing the decision-making process, the final decision may substantively be the same as before. The substantive problem the applicant encountered thus remains unsolved.

The applicant before the Strasbourg Court may therefore not (directly) benefit from the Court’s procedural turn. However, there might be a ‘third track’ that the Court could steer towards, thereby generating both general and individual justice. It may do so by taking into account the above-mentioned concerns relating to individual justice. Elsewhere, I have illustrated that the Court can and has used procedural reasoning in a variety of manners. Quite possibly, it can prevent disappointment on the side of the applicant by not relying exclusively on procedural arguments to find or not find a violation of a substantive right. Supplementing process-based review with substantive considerations may furthermore help to overcome implementation problems. The Court then provides guidance as to whether the content of the decision is actually acceptable under the Convention or not. In addition, it would be helpful if the Court would make explicit in (the notes on) the application form and in the directions on written pleadings that information about the quality of the national decision-making process may also be relevant in relation to substantive rights.

Many of the mentioned problems, may also arise in relation to a substantive approach by the Court. For example, failure of states to implement judgments of the Court is clearly not limited to procedurally reasoned judgments alone. Yet, the Court should think things through before pulling the lever and redirecting the train to the track of process-based review. Perhaps procedural reasoning may indeed positively influence general justice, but it may do so at the cost of the individual applicant in Strasbourg. A well-thought through and applicant-considerate implementation of the procedural approach may help to avert sacrificing individual justice in Strasbourg.