Dismantling the Iron-Cage: the Discursive Persistence and Legal Failure of a “Bureaucratic Rational” Construction of the Admissibility Decision-Making of the European Court of Human Rights
By Andrew Tickell
This paper will introduce an account of the dominant discursive construction of the admissibility decision-making of the European Court of Human Rights and argue that this understanding of admissibility decision-making is identifiable with a ‘bureaucratic rational’ model of administrative justice. The plausibility of this dominant discursive construction will then be interrogated by comparing this construction against a detailed legal analysis of two key grounds of admissibility, asking, is the dominant image of admissibility decision-making as formal, technical, rule-governed and bureaucratic supported by the jurisprudence of the Court on these grounds?
This paper will argue that a legal analysis cannot support this ‘bureaucratic rational’ image of admissibility decision-making, disclosing a starkly inconsistent admissibility jurisprudence that relies to a very significant extent on ‘nonreplicable, nonreviewable judgment or intuition’ - an approach totally inimical to the ‘bureaucratic rational’ model of administrative justice. This analysis of the Court’s case law both challenges the assumptions underpinning this dominant image of admissibility decision-making, and generates a series of important empirical questions about how the institution’s “case filtering” functions are presented and understood.
[with Thorsten Bonacker]