Procedural protection: an examination of procedural safeguards

The chapter written by Eva Brems throws light on the often-overlooked phenomenon of hidden procedural safeguards embedded in the substantive Convention rights. In numerous fields of its case law, the Court has in fact added a procedural layer to the scope of substantive Convention rights, by deriving state obligations of a procedural nature from substantive ECHR provisions. The main driver for this development appears to be the wish to make human rights guarantees more effective. The chapter first clarifies the reach of procedural obligations under substantive Convention rights, distinguishing between the requirement that a procedure be available and the more specific procedural guarantees that the Court requires. It goes on to analyse the impact of the ‘proceduralisation’ of substantive rights and the role this plays within the Court’s case law.