Exhausting domestic remedies or exhausting the rule of law? Revisiting the normative basis of procedural subsidiarity in the European Human Rights System

ABSTRACT In recent years, the case law of the European Court of Human Rights has seen a new normative turn in grounding subsidiarity when interpreting the substantive rights in the European Convention on Human Rights. The Court has placed emphasis on subsidiarity considerations when the respondent state can demonstrate the democratic and rule of law pedigree of its rights-interfering actions. The Court’s interpretation of the procedural rule of the exhaustion of domestic remedies has not caught up with this new normative turn. This article argues for the ‘normative realignment’ thesis. Grounds for substantive subsidiarity are normatively defensible on democracy and rule of law considerations, and grounds for procedural subsidiarity can and should be more closely aligned with the same considerations.