Procedural review: a solution for the European Court of Human Right’s problems?

ECHRHuman rights cases often concern politically sensitive matters. An example is the case the European Court of Human Rights decided two weeks ago on the Beslan hostage taking drama. In 2004, about 800 children and 300 of their parents were taken hostage in a school in Beslan, Russia, and were held in the school building under very harsh conditions. Several of the male hostages were executed in full view of the children. After unsuccessful negotiations with the hostage takers, the authorities decided to storm the school and end the siege. Much is unclear about what happened, but some powerful explosions occurred, killing dozens of people, and a fire broke out, which killed even more children and their parents. Over 330 people lost their lives and hundreds more were wounded. Not satisfied with the way in which the authorities responded to the occurrences, some of the victims and their relatives approached the European Court of Human Rights and asked it to examine if the Russian authorities had done enough to protect their lives and safety. Given the context of terrorism and civil strife in the North Caucasus, the case was of tremendous political sensitivity. Moreover, the facts were disputed and it was far from clear who should be considered to bear primary responsibility for the killing of so many children and their parents – the terrorists or the Russian authorities. Clearly, thus, this is an extremely hard case for the European Court of Human Rights to decide, and the question may arise what approach it should choose in dealing with it.

How to decide ‘hard cases’?

In this type of ‘hard cases’, in fact the Court is asked to decide on the reasonableness of national interferences with human rights, on state responsibility for human rights violations, or on the fairness of the balance a national court has struck between competing interests. The Court can do this by using so-called ‘substantive’ review, where it evaluates and determines the facts and undertakes an assessment of the substance of the rights and interests concerned. In by far the most cases, such substantive review requires deep involvement with national decisions and it often requires value judgments to be made or reviewed. In the highly politicised environment in which the European Court works, this is far from easy. States may easily regard substantive judgments as activist, or see them as unwarranted interventions into their own sovereign decisions. But is there an alternative to substantive review?

Shifting to procedural review

Some researchers from the Montaigne Centre have set themselves the challenge of answering this question. Their hypothesis is that the European Court of Human Rights (or, in fact, any other international or national court) might shift the focus of its review from substantive assessment of proportionality and balancing, to examining rather more procedural issues. Such ‘procedural review’ would focus on the quality of national decision-making procedures. This means the Court should consider whether the national decision-making met standards of transparency, openness, participation, legal protection, and procedural justice or fairness. If it turns out in a concrete case that such procedural guarantees were lacking, it may not even be necessary for the Court to further consider the facts of the case and assess the substantive reasonableness of the national acts. Possibly, such procedural-type review could help to avoid some of the political elements inherent in reasonableness review. Moreover, if the Court set clear standards for quality of national decision-making procedures, and States duly implement these standards, eventually this might help to improve respect for human rights on the national level.

Thus, much is to be said in favour of procedural review. It is therefore a promising sign that the European Court of Human Rights is already applying procedural review in many of its judgments. A few years ago, it even expressly mentioned that it would make procedural review an important element of its judicial policy. However, even though procedural review has great potential, it is riddled with difficulties and questions of an analytical, empirical and normative nature. What exactly is procedural-type review? Can it be applied in all types of cases, and in any way a court wants? Is it really effective in reducing the risk of a court being accused of judicial activism? Does it actually contribute to improving procedural fairness on the national level and, in turn, does such improvement lead to more effective protection of fundamental rights?

Research on procedural review

In fact, the answers to many of these questions are not yet known. It is for that reason that the challenge of exploring the potential of procedural review has been taken up with great vigour. For example, at the Montaigne Centre, Leonie Huijbers is currently preparing a PhD thesis on the definitional, conceptual and theoretical issues related to procedural review. In addition, an edited volume has just been published under the title of Procedural Review in European Fundamental Rights Cases (Gerards and Brems (eds), CUP 2017). In this book, scholars discuss the topic of procedural review from a variety of perspectives. The rationales for procedural review are studied and an effort is made to find out whether, from a political and social science perspective, it can be expected that national decision-making procedures will be improved when an international court focuses on their fairness and quality. In addition, the volume maps out how and to what degree procedural review is currently applied by the European Court of Human Rights as well as by other international and European courts.

The book project has provided some important answers to the questions raised above. However, it also showed that much work still needs to be done. For that reason, the current aim is to bring together a group of excellent scholars who are interested in working on the topic. This has resulted in a highly inspiring and insightful expert seminar on 10 March 2017, hosted by prof. Kasey McCall-Smith of the University of Edinburgh. During that seminar, many remaining and new questions were identified, and a network was formed to collaborate on this matter. It was also decided to further discuss the value and challenges of procedural review during a panel session at the 2017 conference of the International Society of Constitutional Law (ICON) in Copenhagen.

Is procedural review the real solution? The Beslan case revisited

Thus, there is much promise for procedural review in human rights cases. But did the European Court of Human Rights apply such a review in the Beslan hostage taking case? To a considerable degree, it did not. The Court criticised the flaws in the Russian investigations into the crisis and the authorities’ failure to clarify key aspects of the case. This clearly is a procedural element to the Court’s reasoning. Moreover, the Court suggested to the Russian Government that it ought to change national legislation and practice to facilitate better investigations and collaboration in respect of security operations. This indicates some attention to improvement of national procedures. Nevertheless, the Court’s review was mainly substantive in nature. The Court dealt elaborately with the degree of knowledge the Russian authorities could have had of the imminent terrorist activities in Beslan, and it condemned the authorities’ indiscriminate use of lethal violence. Indeed, such a substantive approach can be seen to have some advantages in a case like this one. It allowed justice to be done for the victims in a highly visible way, and more importantly, it turned out that the substantive issues really formed the core of the case and they could not be avoided by the Court. Interestingly, therefore, the case appears to disclose a situation-type in which procedural review can work, but in which also substantive review is necessary. Thus, the judgment is a great addition to the body of case-law that slowly provides for more clarity about the possibilities for and limitations procedural review, and it fuels the debate on such issues. For those wanting to participate in this debate: the panel on procedural review at the ICON conference is open to everybody interested!

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Janneke Gerards

About Janneke Gerards

The research conducted by Janneke Gerards focuses on fundamental rights, equal treatment law, judicial review and comparative public law. The interrelation of the European Convention on Human Rights, EU law and national law plays a central role in her research. She also publishes on the future effectiveness of the European Court of Human Rights, the development of fundamental rights by the Court of Justice of the European Union, and general notions and principles of fundamental rights law. Janneke Gerards is also Dean of the Legal Research Master of Utrecht University. Janneke Gerards has worked previously at the universities of Maastricht, Leiden and Nijmegen. Since 2015 she is a member of the Royal Netherlands Academy of Arts and Sciences. Her activities outside the university include being a deputy Judge in the Appeals Court of The Hague and a membership of the Human Rights Commission of the Dutch Advisory Council on International Affairs. Together with Antoine Buyse and Pauline de Morree, Janneke Gerards has developed a Massive Open Online Course (MOOC) on human rights in open societies; see www.coursera.org/learn/humanrights or - for the teaser - www.youtube.com/watch?v=nxNpjwEIPXo.