Human Rights and Judicial Review in Times of Emergency or Crisis

Abstract

The article identifies grounds for special judicial restraint in times of emergency or crisis. They relate to the stakes, the urgency, and the relative constitutional responsibility and competence of state organs. On this basis, the article argues that, generally, courts should exercise more restraint as regards assessing the situation/threat, than reviewing the measures taken; exercise more restraint on factual aspects where courts are generally not in a good position to second-guess the assessment of the executive (situation, necessity of measures) than on normative aspects which are judicial in nature (rationality, arbitrariness, discrimination, proportionality); and exercise more restraint on substance than on procedure (due process) – the latter being the providence and raison d’etre of courts. The analysis is backed by examples from Strasbourg case law as well as from certain national jurisdictions.