Blanket bans, subsidiarity, and the procedural turn of the European court of human rights

Abstract

In recent years several commentators have identified a 'procedural turn' by the European Court of Human Rights whereby it places increased emphasis on the presence or absence and/or quality of legislative and judicial deliberations at domestic level when assessing the proportionality of allegedly rights-infringing measures. One area where the procedural turn has been particularly apparent is in relation to cases involving blanket bans on activities protected by the European Convention. On most accounts this move to 'process-based review' is causally linked to the principle of subsidiarity. In this article it is argued that whilst the shift to process-based review may generally have sound justifications in terms of the subsidiary role of the European Court as compared to States parties to the Convention, there are nevertheless several ironic downsides to this approach in the case of blanket bans, in terms of the certainty and predictability of the Court's case law. Furthermore, and more critically, there may be serious consequences in terms of the rights protection afforded to vulnerable minorities within States who may be at the receiving end of such legislative blanket bans.