Abstract:

The European Court of Human Rights has for decades struggled with an excessive caseload. Reforms set in motion by the Court and Protocol No. 14 have not solved the problem, leading to the initiation of three High Level Conferences on the Future of the European Court of Human Rights. The outputs of these conferences are the Interlaken, Izmir, and Brighton Declarations. As a measure to reduce the Court’s caseload, the Declarations invite and encourage the Court to keep more distance from questions of facts and law decided by national authorities, giving great prominence to the principle of subsidiarity and margin of appreciation. The article analyses and discusses whether and to what extent these signals have been adopted by the Court. It is argued that there are several changes to be identified in the Court’s interpretation of the Convention which, taken cumulatively, point towards a paradigm shift. This concerns most notably methodological changes, that is, the scope and operationalisation of the principle of subsidiarity and the margin of appreciation. Material changes are also identified, such as relativisation and narrowing down Convention rights. The author argues that the need, motivation and legitimacy for the changes might be questioned and should be further analysed and discussed.

Keywords: Human Rights, European Convention of Human Rights, European Court of Human Rights, Principle of Subsidiarity, Margin of Appreciation