Judicial avoidance at the European Court of Human Rights: Institutional authority, the procedural turn, and docket control

Abstract

Abstract This article concerns the ongoing conflict over the authority of the European Court of Human Rights (ECtHR). As has been widely discussed, the authority of the Court has come under sustained pressure from states over the last decade. As one response to this pressure, the Court has undertaken what the literature calls a procedural turn—a doctrinal shift that has incorporated its changing political dynamic into its case law. The procedural turn is constituted by renewed deference to national authorities “premised on good faith domestic engagement with [European Convention on Human Rights] principles.” This article sets out a functional critique of the procedural turn by drawing attention to certain limitations in its assumptions and application. Is there an alternative—or additional—way for the Court to respond? Drawing on the practice of other courts, I propose that the ECtHR take seriously judicial avoidance as a way to protect its authority—specifically, the Court might avoid making a determination of a particular case at a particular time. This approach—though not without objection—may provide the Court with an ad hoc, flexible capacity to protect its authority, and comes with the additional benefits of neither legitimating the underlying domestic measure nor upsetting important doctrinal structures relevant to other cases. I further suggest that control of its docket through introducing strategic considerations at the admissibility stage would be the most appropriate technique of avoidance for the Court.