In recent years the European Court of Human Rights (ECtHR) has been criticized for using a too intensive scrutiny when reviewing alleged human rights violations and lacking proper respect for the margin of appreciation left to the national authorities of the member states. Possibly in response to this criticism, the Court nowadays often uses a less substantive and more ‘procedural’ approach in order to determine whether a Convention right has been violated or not. In several recent judgments the Court used this more procedural approach. When assessing an alleged human rights violation the Court tries to find out if the procedural requirements such as the carefulness of the procedure and availability of an effective remedy (Article 13) are met. If the Court decides that this is the case, an interference with a human right could be justified. Of course, this depends on the specific circumstances of the case. As a consequence of this approach the Court does not always have to deal with the merits of the case.
To illustrate this procedural approach of the Court we would like to discuss briefly a recent judgment of the Court in the case called Yordanova and others vs. Bulgaria. This case concerns the eviction of Roma (the applicants in this case) from a settlement in Sofia. For decades the building of their houses was tolerated by the domestic authorities of Bulgaria. As a result of the increasing problems between Roma people and non-Roma neighbours, the Bulgarian authorities decided to evict the Roma from their houses. The Bulgarian authorities did not provide any new houses for the Roma people.
The Court deals with this case under Article 8 (respect of private and family life) of the Convention and when it assesses the ‘necessary in a democratic society’ requirement the ‘proportionality assessment’ comes into play. The Court emphasizes the importance of the procedural safeguards in national law which provide for this proportionality test. The Court finds a violation of Article 8 and states:
‘(…) as it [the enforcement] was based on legislation which did not require the examination of proportionality and was issued and reviewed under a decision-making procedure which not only did not offer safeguards against disproportionate interference but also involved a failure to consider the question of “necessity in a democratic society.’
As we said, the Court attaches great importance to the presence of safeguards in national law in order to assess the proportionality of the measure. The fact that this case concerns Roma people should also have been taken into account and shows the casuistic nature of the Court’s case law. In the Court’s opinion the applicants’ specificity and their particular needs had to be part of the proportionality assessment. The national authorities failed to do so. Note that the Court does not give an answer to the question whether the eviction of the applicants was allowed in this case. However, the judgment of the Court does have some important implications for the national authorities of Bulgaria. According to the Court the national law regarding the eviction of people has to provide for (among other things) a proportionality test. The Court states as follows:
‘(…) the Court expresses the view that the general measures in execution of this judgment should include such amendments to the relevant domestic law and practice such as to ensure that orders to recover public land or buildings, where they may affect Convention – protected rights and freedoms, should, even in cases of unlawful occupation, identify clearly the aims pursued, the individuals affected and the measures to secure proportionality.’
While the ECtHR seems to replace its traditional ‘substantive’ review by a more ‘procedural’ one, the Dutch administrative law judge gradually seems to have moved from a ‘marginal’ (i.e. procedural) review to a more ‘substantive’ review. For years the leading principle governing the judicial review of government decisions – the principle of marginal review – aimed at restricting the unelected law judge from entering the territory of the politically accountable government. In recent years, however, the weight of this principle has decreased, and a new and competing principle has gained ground. This new principle favours the swift resolution of disputes, even if this means that the administrative law court sometimes has to decide matters which are normally considered ‘government matters’.
In a case decided in 2009 the Council of State determined that the court of first instance can use its competence to replace a quashed decision with its own even if there is still a margin of appreciation left to the administration. In older, stricter case law, the administrative law judge restricted the use of this power to cases where only one decision remained possible after its judgment. In another case decided in 2009 the Council of State encourages the courts of first instance to use their widened competence more actively. In this judgment the Council states that when the court of first instance quashes a decision, it has to examine the possibilities for reaching a final settlement of the dispute. Sometimes the administrative law judge goes quite far when trying to reach a final settlement. In yet another case decided in 2009 the Council of State formulated the precise conditions attached to a last onder dwangsom (imposing an order subject to a penalty). The Council tried this solution after a prolonged period in which the administration had proven to be incapable of formulating lawful conditions to the penalty itself.
The new emphasis on ‘final dispute settlement’ that underlies the case law just mentioned is a reaction to a big social discontent in Dutch society about the limited ability of administrative law judges to resolve disputes in a final manner. Under the old approach the administrative law judge, exercising a marginal review, often quashed a decision for lack of careful preparation or insufficient written justification, without offering any clue as to the required substance of the new decision. This often led to renewed disputes about the new decision made by the government. As a result disputes regularly had a tendency to drag on for years before being finally settled, causing great additional frustration to the applicants.
An important explanation why Dutch administrative law traditionally attaches great importance to the principle of ‘marginal review’ lies in the doctrine of the separation of powers. Applied to the relationship between the judiciary and the administration, this doctrine holds that the task of the administrative law judge is to review decisions, not to make decisions. That is why the administrative law judge has to respect the margin of appreciation left to the administration. Otherwise the administrative law judge runs the risk of entering the sphere of the administration . The same line of reasoning is nowadays more or less used to criticize ‘substantial’ judgments made by the ECtHR. This happened for instance in the notorious Hirst case, in which a blanket ban on British prisoners exercising the right to vote was held contrary to article 3 of the First Protocol of the Convention. Arguably the focus on the procedural aspects in the decision-making process and the procedure before the national courts is more in line with the subsidiary position of the Court.
The Dutch experience with ‘marginal review’ shows that adopting a ‘procedural approach’ can be a good way to deflect such criticism. Members of the administration often criticize the administrative law judge, but never for exercising a review that is ‘too marginal’. The Dutch experience with ‘marginal review’ also contains a clear warning however. In the eyes of applicants, the exercise of a ‘marginal review’ is often regarded as an ineffective manner to solve the dispute. When a case is marginally reviewed, the judge regularly cannot provide the litigants with a definite answer to the question that holds them divided. As mentioned, this can lead to great frustration on the part of the litigants and to disputes dragging on for years. The ECtHR would do well to keep these disadvantages in mind when using a ‘procedural approach’ to review an alleged violation of a Convention right.