The quality of parliamentary process has been a relevant factor for the European Court of Human Rights (ECtHR or the Court) in a number of recent judgments. This article asks: to what extent could the technical purpose for assessing parliamentary process – margin of appreciation and/or proportionality analysis – structure the assessment? The analysis combines study of the ECtHR’s practice with theory on the margin of appreciation and the proportionality test. Four cases are selected to represent different ways in which parliamentary process has been dealt with by the Court: Animal Defenders International v. UK; Sukhovetskyy v. Ukraine; Lindheim v. Norway; and Parrillo v. Italy. The main argument is that the Court has been hazy about the technical purpose that reference to parliamentary process is serving in its reasoning. This has affected the coherence of reasoning within cases and the development of a general doctrine on the assessment of parliamentary process. Judges interested in the legitimacy of the Court and in favour of placing value in parliamentary process should work towards clearer explanation of the technical purpose it serves within the Court’s reasoning.
Tuesday, October 25, 2016
Saul: Structuring Evaluations of Parliamentary Processes by the European Court of Human Rights
Matthew Saul (Univ. of Oslo - Pluricourts) has posted Structuring Evaluations of Parliamentary Processes by the European Court of Human Rights (International Journal of Human Rights, forthcoming). Here's the abstract: