Timo Sewtz – Procedural Review of morally and ethically sensitive cases in regional human rights protection

In recent years, the European Court of Human Rights (ECtHR) has experienced a procedural turn. The term refers to the increasing use of procedural review in the Court’s case law. This means that the Court assesses the quality of domestic processes (rather than the substantive outcome of the process) to decide whether there has been a violation of the European Convention on Human Rights. This development has to be seen in a broader context of the situation of the European human rights system which finds itself in an “age of subsidiarity” (Spano) and which is the target of harsh and partly even hostile criticism of several member states. The use of procedural review can be understood as a way to create a new relationship between the Court and the member states based on the principle of subsidiarity.

One the one hand, it is feared that scrutinizing domestic processes interferes too deeply with the sovereignty of member states. On the other hand, it is doubtful if a mere control of the procedure does always sufficiently guarantee an effective human rights protection and the further development of human rights standards. Emphasizing a procedural review could especially serve as a tool to avoid a controversial substantive decision in morally and ethically sensitive cases (e.g. cases concerning reproduction, abortion, euthanasia, sexual orientation, religiosity in public life). Moreover, such an approach could result in the development of incoherent human rights standards, as identical measures could be assessed differently, depending on the quality of the domestic proceedings.

Proponents of procedural review underline the possibility of strengthening the concept of subsidiarity, which they argue is necessary because of the lower democratic legitimacy of the ECtHR compared to domestic decision-makers and the case overload of the Strasbourg system. By stressing the importance of domestic proceedings, the ECtHR could incentivize domestic decision-makers to take the ECtHR’s case-law and the standards of the European Convention on Human Rights already during the domestic proceedings into consideration.

It is therefore important to analyze how the ECtHR – also in comparison to other regional and international human rights protection systems – deals with morally and ethically sensitive cases in times of political tensions, and how the concept of proceduralization helps or hinders it in doing so. The study aims to add a comparative aspect to the academic discourse in order to shed light on the opportunities and limits of proceduralization in regional human rights protection, particularly in the case of morally and ethically sensitive issues.