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32 Eur. J. Int'l L. 281 (2021)
Shaping Legislative Processes from Strasbourg

handle is hein.journals/eurint32 and id is 283 raw text is: The European Journal of International Law Vol. 32 no. 1
© The Author(s), 2021. Published by Oxford University Press on behalf of EJIL Ltd.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
Shaping Legislative Processes
from Strasbourg
Matthew Saul*
Abstract
The European Court of Human Rights (ECtHR) can review the quality of a legislative pro-
cess. This article calls such review 'active subsidiarity' and investigates empirically when and
how such subsidiarity shapes legislative processes by tracing implementation of the Court's
decision in one case: Lindheim and Others v. Norway. How did the ECtHR's criticism of
the absence of a balancing exercise shape the corrective legislative process? The article shows
that the ECtHR 's reasoning caused the legislative process to include a visible balancing exer-
cise, but that this did not enhance the democratic quality of the parliament's work on the
rights issues. The article analyses these findings from the perspective of the variety of le-
gislative circumstances that come before the ECtHR. It is difficult to anticipate how active
subsidiarity will affect legislative processes as a general matter but certain contexts, such as
those of minority governments, may be more conducive to democracy enhancing effects. This
has implications for how the ECtHR should formulate active subsidiarity.
1 Introduction
The European Court of Human Rights' (ECtHR or 'the Court') role as a facilitator of
national protection of human rights is changing, argues Judge Spano.1 Initially, the
Court focused on the substantive embedding of the European Convention on Human
Rights (ECHR or 'the Convention') in member states. This was through giving meaning
to Convention-based rights and obligations.2 Recently, the Court entered the 'age of
*  Associate Professor, Inland Norway University of Applied Sciences, Lillehammer, Norway; Guest
Researcher, PluriCourts, Oslo, Norway. Email: matthew.saul@inn.no. This work was partly supported
by the Research Council of Norway through its Centres of Excellence Funding Scheme, project number
2232 74. The author thanks several members of the PluriCourts team for comments and suggestions on
earlier drafts.
1 Spano, 'The Future of the European Court of Human Rights-Subsidiarity, Process-Based Review and
the Rule of Law', 18 Human Rights Law Review (HRLR) (2018) 473; Judge Spano was elected President of
the ECtHR in April 2020; he was Vice-President from May 2019.
2 Ibid., at 475. See also Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950, 213 UNTS 221 (hereinafter 'ECHR').
EJIL (2021), Vol. 32 No. 1, 281-308                           doi:10.1093/ejil/chab030

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