Subsidiarity is an organising principle that matters ought to be handled by the smallest, lowest or least centralized competent authority. The Oxford English Dictionary defines subsidiarity as the idea that a central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level.
Although it is not clear what that would change to current practice, unless it becomes mandatory for the Court to give a margin of appreciation. This doctrine allows the court to take into effect the fact that the Convention will be interpreted differently in different signatory states. Judges are obliged to take into account the cultural, historic and philosophical differences between Strasbourg and the nation in question. It is similar in concept to, but should not be confused with Subsidiarity.
One of the most controversial aspects is that the Court would be barred from considering cases “identical in substance to a claim that has been considered by a national court”, unless the national court “clearly erred” in its interpretation, or raises a serious question affecting the interpretation of the Convention. This would carry in it the danger of almost completely taking away any substantive role for the European Court of Human Rights.
Thus, the proposals seem to present a very mixed bag of efficiency enhancing measures and potentially dangerous ideas which would undermine human rights protection by curtailing the Court and access to it for victims.
Obviously, for Convention changes unanimity is needed. Even if the United Kingdom, and in its slipstream the Netherlands, seem to take a tough stance towards the Court, Belgium, Germany, and Austria seem to be opposed to curtail the Court’s supervisory role in human rights protection. France seems to linger between indifference and sympathy for the British plans[2].
Opinion of the Court
On 20 February 2012 the European Court of Human Rights sitting in Plenary issued an opinion in preparation for the Brighton Conference, responding to the proposals of State Parties. The Court does not offer a definition of subsidiarity, but does suggest that States must reaffirm their commitment to the system of human rights protection, which requires “making every effort to secure the Convention rights and freedoms at national level and accepting that these efforts are subject to judicial scrutiny at European level”. In a separate speech the President of the Court said that subsidiarity and the margin of appreciation should not be put in the Convention. The Court is unconvinced that the proposed new admissibility criteria “will have any significant impact on the Court’s case-load” as such cases would require “systematic and thorough examination.” Such options might be considered for the long-term reform of the Court, together with the possibility of the court selecting cases for adjudication, where there was an option of referring the cases not taken to another international process or to a national mechanism[3].
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[1] http://www.guardian.co.uk/law/interactive/2012/feb/28/echr-reform-uk-draft
[2] http://echrblog.blogspot.com/
[3] http://www.soros.org/initiatives/justice/articles_publications/publications/echr-factshees-20120227/echr1-brighton-20120227.pdf
