Course 8

Question 1

What is the finality condition for the lawful interference with HR?

Answer 1

• Finality condition for the lawful interference with HR = does it pursue a legitimated aim?
• In a number of articles of ECHR: list of legitimate aims, purposes for which restrictions of human rights are possible: The government must be able to refer at least to one of the aims listed for the interferences in question. Usually not really a problem.
  
  • Protection of public order, prevention of crime, protection of the rights of others.
• These lists = exhaustive however, they are so broad that anything can go under them, so rarely a problem there.
• Usually you will find in the judgements are very short reference to this second part of an article/ second condition. There are sometimes exception​.

Question 2

What are the exceptions where there is a problem with legitimate aim?

Answer 2

• In a number of recent judgements: court is going further than checking whether a legitimated aim is present and then these are exceptional cases. But the fact that such cases exist is in fact very troublesome.
• Example: art. 18: abuse of restrictions made possible by the European Convention:
  
  • Even if, at face value, the interference is pursuing a legitimate aim, it may well be that there is in fact another aim. Where another unacceptable aim is predominant and so the aim that is permissible under the European convention is the excuse to do something that in fact is not allowed under the convention. If that happens then there is a violation of art. 18 ECHR.
  • Someone could be arrested based on certain suspicions and the machinery of criminal law could be used to eliminate an important opposition candidate from participating in elections and that has happened in number of countries where European court find or did not find a violation of the article which allows for restrictions to the right the life of liberty:
    
    • Abuse of powers that a state has because the real aim is elsewhere.

Question 3

What is the necessity condition?

Answer 3

• The necessity in a democratic society: An interference must be in accordance with the law, must pursue a legitimated aim and must also be necessary in order to realize that aim.
• Really open term, open for interpretation:
  
  • Not too strict: you do not have to interpret it in such a way that it would mean indispensable that you cannot achieve your aim in any other way other than by restricting fundamental rights of individual.
  • But also not so flexible that it should only be ‘reasonable’ = should be more than reasonable.

Question 4

What is the Handyside case?

Answer 4

• Handyside-case 1976:
• Necessity means: “there is a pressing social need”

Question 5

What follows from this notion of pressing?

Answer 5

1. ecessity in a democratic society, it is not the necessity in a totalitarian society, such society may have all sort of needs. We are not going to take such needs into account  acceptable democratic needs.
2. The necessity must be demonstrated by certain reasons that are giving by the authorities that are restricting fundamental rights. And the court have said that these reasons must be relevant and sufficient. That is looking at the necessity from the point of view of the Public Authority that is restricting fundamental rights: “Why does the public authority think that is necessary to restrict a person fundamental rights?”
   
   • Relevant: you invoke certain reasons and you adopt a measure accordingly: reasons must fit into what is actually taking place.
   • Reasons must also be sufficient: It means that you cannot restrict fundamental right for frivolous reasons. It must be sufficiently serious. Serious reasons.
3. Interference from the point of the individual who claims that his rights have been interfered with: the interference may only be proportioned to the legitimated aim that is pursued = proportionality principle. Very important in the whole Convention for the ECHR and domestic courts to apply = authorities should not go further than needed = fair balance between the individual rights and the public interest, the general interest = essence of human rights protection because very few rights are absolute: you always need a balancing act. Most rights can be restricted for a good reason  check whether the interference is justified under the convention and usually the problem is proportionality.

Question 6

What is the example of the necessity condition?

Answer 6

• Judicial authority or police authority have some suspicions about a person and they want to wiretap/check social media:
• Legal basis: law provides when they are allowed to in certain circumstances = legal basis.
• Legal basis sufficiently clear = everyone knows that they can be interfered in such a way, foreseeability of the measure is okay. Legitimate aim even though it is contrary to art. 8.
• Necessity of the interference:
  
  • Relevant reason: yes: combat crime. Also a serious reason.
  • Proportionality: what is the balance?
    
    • What is the crime = is it someone involved in serious crimes: drug trafficking or human trafficking or is it a small theft.

Question 7

Does the fair balance means that the public authority has to go for the least intrusive measure?

Answer 7

• This is a requirement under the constitutional law  it is enough here that there is a fair balance = if the authorities have good reasons, they can go quite far in restricting HR.
• If the individual can demonstrate that less far-going measures were possible and that would have been as good as the one that has been adopted to achieve the aim pursued, it will be an important element in the assessment to whether or not decide if the measure was proportionate. It is not decisive, but it is an element.

Question 8

Who is going to balance the interest?

Answer 8

1. First: the domestic authorities, very often these are political decisions on where to place the line: legislator or government adopting a general measure or an administrative authority when taking a measure in an individual case. All authorities should in principle have this proportionality requirement in mind.
2. The European Court of Human Rights is only reviewing what has been done on the domestic level, it checks if the measure that has been adopted is in line with the fair balance. If you say the European Court is only reviewing, it means that the Court as such is not doing itself that searching for a fair balance, it is checking if a fair balance has been reached by the domestic authorities. There is a difference between checking it yourself and reviewing what others have done.

• This is also something that you need to keep in mind when you’re doing yourself the exercise to check if the interference is in accordance with the ECHR. What is your point of view? Are you acting as a public authority or as the European Court that is, after the decision has been taken, reviewing what’s been done?

Question 9

What is the Dudgen case?

Answer 9

• Dudgen case v. Northern Ireland:
  
  • Northern Ireland prohibited and punished homosexual conduct, any homosexual conduct, between adults and younger people but also between two consenting adults. The question is if such a law is compatible with article 8 ECHR (right to protect the respect of private life)

Question 10

What is the analysis in the Dudgen case?

Answer 10

1. Is there an interference?
   
   • Only a law = no criminal procedure but applicant said that he risked being brought in front of a criminal court = there was interference.
2. Was there a legitimate aim?
   
   • At the time: yes: protection of morals: aimed at protecting younger people and also about the protection of others.
3. Was it necessary in a democratic society? Can such a general prohibition be justified under ECHR?
   
   • See next question

Question 11

Was the intervention necessary in the Dudgen case?

Answer 11

• The Court said it is acceptable under ECHR that legislators take certain measures are taken in the field of sexual activities in order to protect morals. Question is: how far can they go.
• The European Court in its reasoning follows the distinction made by the government in this case, it’s a distinction made based on the age. It’s a distinction made in order to make a proper reasoning. The Court makes the distinction between people over 20 years old and on the other hand the people younger than 20 years old. The real problem is with the first category. Legislation that intends to protect adults (21 years old). The Court says that such a measure may be very relevant in a region or country such as Northern Ireland taking the moral climate into account, but is it sufficient and in particular, is the interference proportionate?
  
  • The applicant refers to the situation in many other countries of the Council of Europe where such a severe restriction does not exist. the Court accepts that this is an important element. Consensus existing in other Member States is an important element.
• Court states that even though there is that law: there is not much prosecution so how necessary is the law.

Question 12

What is the conclusion on the Dudgen case?

Answer 12

• Conclusion: there are not sufficient reasons for a prohibition in so far it relates to consenting adults (people over 20 years old) and the interference therefore cannot be proportionate with the aim pursued. That is enough to find a violation. Then the Court says there might be good reasons to protect younger people. In Northern Ireland you become an adult when you’re 21 years old.
  
  • “We are not going to say it should be 21 years old as the limit, that is for the legislator in each State to decide.” We simply say you may, although we find a violation insofar as it is the prohibition is so general and applies to everyone, even those above 21 years old. That does not mean that you cannot take a measure that is less restrictive. Which would bring it within what is still proportionate. The Court simply says it does not mean you cannot take a measure that is less restrictive, which would bring it to what is still proportionate.

Question 13

What is the main message from the Dudgen case?

Answer 13

• The main message from the judgement is that you can adopt a certain measure, there may be a very good reason for it, protection of morals in this case, but don’t go too far. You can take measures, but you cannot go too far, once you overstep the limit of proportionality, your measure becomes unnecessary in a democratic society and therefore violates the European Convention.

Question 14

What are implied limitations?

Answer 14

• Contrary to explicitly admitted limiations = relevant convention article clearly states that interferences with the right in question are possible, provided that certain conditions are being met. And you just have to follow the list of these conditions.
• Implied limitations: articles of the European Convention that state that a certain right is guaranteed but they do not say anything about limitations.
  • Could be an absolute right, but mostly the court accepts such rights may be limited, although there is no explicit provision allowing for such limitation, and that is when the court speaks of implicit limitations or limitations implicitly admitted.

Question 15

When are the implied limitation admitted?

Answer 15

• Same principles are used as when the convention provides a limitation:

1. Provided by law = must comply with domestic law
2. Legitimate aim: very broad notion here because there is no list of aim  everything that is in the public interest can constitute a legitimate aim.
3. Interference must be proportionate to the aim pursuit = again the fair balance of the rights of the individual and the general interest.

Question 16

What is the example of respect for property wrt implied limitation?

Answer 16

• Respect for property: Article one of protocol number one to the European Convention:
  
  • There are some sentences in that article which mentioned which explicitly mentioned the possibility of restrictions, but the court has said these sentences are two such sentences. They do not cover all possible interferences with the right to property. Apart from that, there is also a broader notion of the right to property, which can also be then limited. But there’s no explicit provision about that. Prevent the convention speaks of deprivation of property, expropriations explicitly regulated.
  • Also speaks of the regulation of the use of property is when the authority says you can do with your property and what you cannot do: eg. Cannot build a house because of urban planning in this region = interference with your right to property because suddenly the value of your property is way down.
    
    • Not explicitly mentioned because it is not expropriation. It’s also not a regulation of the use of your property.
• So here the court says this is also covered by the notion of the right to protection of property. And that right is not absolute. It can be limited, but then according to these implicit conditions for a limitation of that.

Question 17

What are positive obligations?

Answer 17

• The recognition of the existence of positive obligations = obligation to do something: provide services, advantage, to take positive actions –> traditionally associated with economic and social rights.
  • Eg. Right to health cannot be guaranteed but the state can accept that there is a right to proper health services  if a state wants to respect that: you must install a health care system = lots of positive measures are needed to show respect for that fundamental right.
• Positive obligations all over the place when it comes to the area of economic social rights.

Question 18

Can you under the European Convention ask for ceertain positive measures from the state = primarily aimed at protecting civil and political rights and traditional fundamental freedoms?

Answer 18

• Practically not mentioned as such in the European Convention: there are some references to positive measures but the ECHR has read the existence of positive obligations into the text of the convention. And I would say that is one of the big achievements of the European Court of Human Rights. It did so already practically from the beginning. But it’s almost unavoidable to accept that there are also positive obligations. The reasoning of the European Court is quite simple:
  
  • How can you comply with the right to respect for one of the rights guaranteed by the convention if you would never be obliged to take any positive measures to make that respect effective?
  • Not only a matter of not interfering but also support from public authorities.

Question 19

What can an individual expect from a public authority? What are aspects of the positive obligations?

Answer 19

• Terminology of the UN but useful distinction:
  
  1. Obligation to fulfill:
     
     • The obligation to fulfill is an obligation to secure to the citizens the right to the effective respect for their fundamental rights. Make sure that it is an effective right, and this requires very often and in the first place, the adoption of a legislative, perhaps also a regulatory framework. A framework within which the right in question is protected.
  2. Obligation to protect

Question 20

What was the case Marckx. vs. Belgium?

Answer 20

• Status of illegitimate children, children born out of wedlock: These children were not recognized as children of their parents –> Court stated that this was a violation of the right to respect for family life of both: mother and child in this case.
• And the European court in this case said you have the right to respect for your privacy, the interference here is not by the state, it’s by private individuals. But the state has an obligation to protect you. And that must start with legislation that protects someone against interference by the press in his or her private life. Again, a positive obligation.
• There is also a procedural aspect to the positive obligation to fulfill the state must make it possible for individuals to obtain from the courts the recognition of their fundamental right. The enforcement of their fundamental right against others, against public authorities, but also against private individuals.

Question 21

What was the case A, B and C v. Ireland?

Answer 21

• Legislation in Ireland that allowed under certain conditions for abortion, but more or less a provision on paper because it was practically impossible to obtain an abortion.
  
  • Court decided: when you allow for abortion under certain conditions, you must also set up procedures with doctors, with hospitals, so as to make it possible that women enjoy that part of the respect for their private life.

Question 22

What is the second aspect of the obligation to protect against interferences by other, so not public authorities?

Answer 22

• Prevention: right to life
  
  • ​​How do you protect individuals against interferences by others with their right to life? How do you protect an individual against murder and homicide?
  • Criminal legislation that is sufficiently deterrent. Also other example where the protection of a person’s physical integrity within certain frameworks where action by the by the legislature is highly necessary.
  • Another example is where private companies are engaged in activities that are harmful for individuals that may interfere with the fundamental rights of individuals:
    
    • Legislation that restricts the possibilities of pollution  state has an obligation to control that companies comply with all these regulations.
  • Also if there is no effective control or operational measures in very exceptional instances.
• Heirs complain about a lack of protection: if the state knew what was happening and not protecting the individual enough:
  
  • See cases domestic violence.
  • The convention obliges the state to offer a remecy, sometimes on their own initative, without having to wait for iniative taking by victim.

Question 23

When does the ECHR requires that states set in motion a criminal law mechanism?

Answer 23

• Reserved for very serious crimes: torture, ill treatment, homicide,…
• ECHR requires that states set in motion a criminal law mechanism.
• This is so, so serious that it’s criminal law that applies in many other cases. It is sufficient that there is a civil mechanism. Possibility to obtain compensation, which can be put in motion by the victim. But it has to be effective in the circumstances of the case here.
• Article 13 of ECHR: right to an effective domestic remedy in case of an alleged violation of human rights: this is about remedies sought by a given individual:
  • But here: reaction of the state is not dependent on the initiative of the victim.

Question 24

What are the criteria for determining the existence and the scope of the positive obligation? Is there a positive obligation for the state?

Answer 24

• Applicant before ECHR will state: what the state did was insufficient?
• Question: what is the state obliged to do? Is it obliged to take that measure?
  
  • Not in the convention because it is not mentioned in the convention except for a couple of exceptions.
• Criterion of fair balance: same as with interferences.
• Look at the reasons why the government is refusing to go as far as requested by the individual, what are the obstacles that the government at the state is invoking in order not to do something? That would be good for the protection of the fundamental rights. It’s a fair balance again, the state cannot be held accountable for not having done certain things that would place a disproportionate burden under state. An individual cannot ask everything from the public authorities. It must be within reasonable limits.
  
  • Case by case: number of factors that come into play.
    
    • Also factors that apply to the applicant: how important is the interest at stake for the applicant = what is he complaining about?

Question 25

What deserves more close attention from public authorities?

Answer 25

• Marckx case: important element of a person’s identity: deserves close attention from public authorities.
  
  • A vulnerable person needs more protection from the state than a person that is not in a vulnerable position. Another element that plays a role is another factor relating to the applicant. Particular category of vulnerable persons are children  many positive obligations for the state authorities when it comes to children.

Question 26

Is it important what the applicant is requesting?

Answer 26

• What is the applicant requesting?
  
  • Very specific measure or a broad measure generally formulated, sometimes you are just asking too much, think about the costs of doing what an individual would like to happen?
• This, by the way, is one of the reasons why governments do not like this whole idea of positive obligations. Because especially in the field of economic and social rights, positive obligations can become very costly. And so in the treaty on economic and Social Rights, you do not find precise obligations for the state. States want to keep control over their budget.
  
  • Which does not mean that courts can never intervene to impose certain positive obligations under state authorities.

Question 27

What is the case Handyside?

Answer 27

• Fundamental case UK: 1976: publisher who had obtained rights to book about sex and anti-authoritarianism. Mr. Handyside was prosecuted and convicted so he brought a complaint before the ECHR that his freedom of expression has been violated.
• Court states:
  
  • Convention machinery of protection is of subsidiary nature = first time used by the court:
  • National national authorities that have the primary responsibility for protecting human rights, but also for deciding in how far they can go in limiting human rights and in making that assessment whether or not it is necessary to restrict human rights and how far that the restriction of human rights should go, the domestic authorities enjoy a margin of appreciation.

Question 28

Is the margin of appreciation unlimited?

Answer 28

• No: not unlimited and has a European supervision by the ECHR: the court controls the domestic action but it will not subsititute its assessment for that of the domestic authorities it only checks whether the domestic authorities remained within their margin of appreciation.
• Same thing as when an administrative court reviews action taken by an administrative authority. It is not the court that is going to take the place of the administrative authority, but it checks whether the administrative authority remained within the limits of the law.
  
  • There is a discretionary power for the administrative authority. In the relationship between the European court and domestic authorities there is something similar, the court does not use the word discretionary power, but it speaks of a margin of appreciation that is left to the domestic authorities.

Question 29

What was the conclusion in the Handyside case?

Answer 29

• The UK authorities still remained within their margin of appreciation and thus found no violation.
  
  • Professor is not sure that the court would still decide the same way now.
• Handyside: case involving a negative obligations.

Question 30

Does the margin of appreciation also apply for postive obligatons?

Answer 30

• Yes, the ECHR has extended the margin of appreciation to positive obligations: look for:
  
  • Where is the fair balance between what is asked for by an individual and what is refused by the public authorities?
• The public authorities have a certain margin in deciding whether or not they will grant what an individual is asking from the authority.
• Assessment of: what are my financial possibilities to do what is required? Assessment of: is it really necessary to adopt legislation in order to protect the individual rights of this individual itself? Etc. What is the essence of the margin of appreciation? It is the possibility to make choices. I would like to underline that.

Question 31

What is the example of telephone tapping?

Answer 31

• General notion but how far can you go? For what crimes, what are the requirements of the person, the suspicion?
• Every solution taken by the authorities might be legal within an margin of appreciation because every country takes a different solution, all within the margin of margin of appreciation and then you have this one authority that does something that is unacceptable it’s outside the margin of appreciation. It constitutes a violation.
  
  • Not up to the European Court to make the choice in the place of the national authorities: only examines whether the choice that has been made remains within the margin of appreciation. Of course as I said it may be well that different authorities adopt different solutions. Which does not necessarily means that one of them is right and the other one is wrong.

Question 32

When is there no margin of appreciation?

Answer 32

• Where no choices can be made, there is no margin of appreciation. When there is an absolute prohibition of torture or other ill treatment don’t come with the notion of the margin of appreciation it doesn’t make any sense. It is an absolute prohibition there is simply nothing to choose, you simply don’t do it.

Question 33

What is the difference between ECHR and ECJ?

Answer 33

• Court of Justice applies the law of the EU = overrules domestic law so it makes a decision for everyone living in the EU and all authorities.
• ECHR: The European convention is also common to all the members states of the council of Europe, but it leaves choices to states and that is normally not the case with EU law except if the EU law itself explicitly authorizes states to make choices.

Question 34

What will protocol 15 do?

Answer 34

• The margin of appreciation, invention of ECHR will be included in the preamble to the European Convention on human rights = this is the work of the states party to the European Convention  they want to make sure that there is a reference to the subsidiarity and the margin of appreciation. That will be done by protocol nr. 15 that has been adopted in 2013 but it has not yet entered into force because 2 countries have not yet ratified: Bosnia-Herzegovina and Italy.
  
  • But the margin of appreciation will keep existing as it did before and protocol number 15 is not going to change that.

Question 35

What is important about the breadth of the margin of appreciation?

Answer 35

• Theoretical question and what really matters is the application in a given case?
• What matters: When does the European court allow for a wide margin and when does it leave only a very narrow margin to the national authorities?
  
  • Handyside case: ECHR did not mention the breadth of the margin of appreciation, simply noting that there was one.
  • In later cases: the court started to indicate the factors which have an influence on the breadth of the margin of appreciation.

Question 36

What are the elements that define the breadth of the margin of appreciation?

Answer 36

1. Nature of the right in issue and the importance for the individual
2. When state authorities are better placed to assess the matter –> state authorities will be granted a wider margin of appreciation:
3. Is there a consensus among the member states of the council of Europe?

Question 37

What is the first element that defines the breadth of the margin of appreciation?

Answer 37

• Nature of the right in issue and the importance for the individual:
  
  • Eg. Freedom of expression: very important for the individual and for a democratic society as a whole  state authorities do not have a wide margin of appreciation = very strict in reviewing interferences because of the nature of the right at issue.
  • Same thing with cases with an important aspect of an individual’s existence of identity is at stake. When a state authority is restricting fundamental rights that are very close to what is an essence of a person. This has to do with certain aspects of the private life of an individual. The court will not allow states to interfere with those aspect of a person’s private life that relate to his or hers private identity. It could be for instance the sexual identity of a person. Stay away from it. Your margin of appreciation is rather limited. You don’t have that many possibilities to restrict the individual’s right.

Question 38

What is the second element that defines the breadth of the margin of appreciation?

Answer 38

• State is confronted with a multitude of competing intrests and choices  balance = might be really difficult for the European Court to do the balancing for them.
• Hatton Case: limiting noise produced by airplanes at night: people around are victims = private life is disturbed  how are you going to regulate/arrange all that = domestic authorities  wide margin.
• Same with highly moral or ethical issues, it is not for the court in Strasbourg to decide how moral issues should be regulated in a country like Belgium or Ukraine. Not in an unlimited way, never unlimited. The court will always be able to review what has been done, which choices have been made? But in making choices in these areas, national authorities usually enjoy a wide margin of appreciation.

Question 39

What is the third element that defines the breadth of the margin of appreciation?

Answer 39

• If it is quite clear that in a certain area, the majority of Europe is following a pattern  difficult for other states to adopt a more restrictive attitude = margin of appreciation will be narrowed.
• Can be quite difficult for other states: they find they have good reasons and why are they wrong because other states have chosen a different opinion?
• It is not because of opinion but existing of consensus in different direction → could be an indication that a state may have overstepped their margin of appreciation. Really important: Consensus narrows the margin of appreciation.
• Inverse is also true: when there is no consensus → each state maintains a relative wide margin of appreciation:
  
  1. Eg. Wearing of religion symbols in school: very different legislation all over Europe = wide margin of appreciation for each state!

Question 40

Who supervises the margin of appreciation?

Answer 40

• Margin of appreciation is for left for the domestic authorities but it is not unlimited margin  European supervision! If there is no supervision = you should not stress the margin of appreciation but rather focus on the limits of the decisions. In a system where there is proper review and a possibility of review by the European part of human right you can stress to margin of appreciation.

Question 41

What is the process-based review?

Answer 41

1. Review of the processor as such: where states enjoy a wide margin of appreciation, there is a need for compensation by proceedable guaranties. The state should identify the interests involved and examine who will be affected
   
   • Do those people have an opportunity to make their viewpoint known to the authority who is going to decide, can they defend themselves –> state needs procedural requirements that applies to rule making and individual adjudication. State has to check the effect on the fundamental rights of the people involved = requirement relating to the preparation of the law.
2. Quality of the decision making process: European court is stressing the fact that domestic authorities and courts are expected to apply a case in which human rights play a role on the basis of the principles of the ECHR: convention & case law: the court, when reviewing action taken by domestic authorities will attach a particular importance to the way how the domestic authorities engages with the European convention.
   
   1. Where the national authorities in could faith apply the principles of the European convention followed the case law of the European court of human rights and on the bases of that exercise came to a certain conclusion: the court in general will allow a wide margin of appreciation to the state concerns or will not apply a strict scrutiny.
   2. On the other hand: where domestic authorities do not pay any attention to the convention or the principles –> scrutiny by ECHR will be much stricter. Often there are cases where the domestic court make a big mess = where they are not acting like a responsible domestic court. ECHR will usually find a violation if the quality of the decision making is clearly lacking.

Question 42

Is there a difference between the various state of the council of europe?

Answer 42

• Some have said, some authors have argued that you should make a difference between the various states of the council of Europe. There are certain states that have a long of being democratic and of respecting the rule of law and you should always give them a wide margin of appreciation.
• This is not something the Court does, it does not make distinction between states, but it does make distinction between authorities: those who faithfully apply the convention and those who don’t. There could be patterns there but that is not because of the difference that is being made between states but because of the quality of reasoning in certain states and the fact that they have a better record.

Question 43

What is almost like the process-based review in the domestic legal order?

Answer 43

• Process-based review = review based on the reasoning adopted by domestic authorities. In domestic administrative law in Belgium this comes very close to the principle of material reasoning/ material motivation of judgements/ of decision of administrative authorities. It is not the formal reason, but what is behind it, what also appears from the file, how serious is everything examined by the authorities and does it show that domestic law and European convention law, in our case, has taken seriously? That is the process-based review and the quality of the decision-making process.

Question 44

What is the substantive review?

Answer 44

• Before there was process-based review –> substantive review: checking whether the outcome of the decision in domestic level is compatible with the convention. This is still done by the European Court, but not in every case because of the backlog and it usually stops when it finds a violation on the basis of the proceedings that has been followed = proceedable violation:
  • Effect: national authority has to return case and do homework all over. It could come to the same decision, which is fine as long as it is based on better preparation, better reasoning, more convincing.
  • Same with administrative law and the administrative court finds something wrong with the decision making: first back to the competent administrative body to do the same but on the basis of a different preparation. This is not necessarily wrong, but could be.

Question 45

Is a procedural violation sufficient to find a violation of the convention?

Answer 45

• Procedural violation is sufficient to find a violation of the article of the Convention, but sometimes a domestic authority has faithfully faithfully applied the convention and the principles as they derive from the case law of the European court, and yet the decision taking is questionable. It may well be that the European court than goes into the suspensive review and checks whether the measure is proportioned or not with the aim pursued to mention one thing. That is the suspensive review.

Question 46

What do some states want the court to do?

Answer 46

• Some states want the Court to stop at the process review and not assess the merits of the decision:
• But the Court has made clear that that is not how they see their role, not how to understand the subsidiarity = European court is the ultimate arbiter  it cannot abandon the role to go into the examination of the suspense of the case. It is a policy question whether the European court goes into the suspense of the case where it already finds a fault in the process.