Structuring evaluations of parliamentary processes by the European Court of Human Rights. Issue 8 (16th November 2016)

• Record Type: Journal Article
• Authors: Saul, Matthew
• Is Part Of: International journal of human rights. Volume 20:Issue 8(2016)
• Page Start: 1077
• Page End: 1096
• Publication Date: 2016-11-16
• Subjects: parliament -- margin of appreciation -- proportionality -- European Court of Human Right -- legitimacy -- legislator -- procedure; Human rights -- Periodicals; Civil rights -- Periodicals; 323
• DOI: 10.1080/13642987.2016.1242314
• Languages: English
• ISSNs: 1364-2987

Abstract

Abstract : The quality of parliamentary process has been a relevant factor for the European Court of Human Rights 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 court'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.