Established in 1959 in the aftermath of World War II, the European Court of Human Rights (ECtHR) was designed from the outset as “a backstop against authoritarian regression.” For a long time, democracy was an emerging system, with more and more European countries ratifying the European Convention on Human Rights (ECHR) as they transitioned to democratic governance. However, since the global peak of democracy in the mid-2000s, democratic backsliding has become an ongoing trend across the European continent. Some states that ratified the ECHR have transitioned into fully-fledged authoritarian regimes or hybrid states, while others are showing early signs of heading down a similar path. By waging war against Ukraine, Russia pushed this to such an extent that it was ultimately excluded from the Council of Europe.
Darian Pavli is a judge at the ECtHR. In a concurring opinion to the judgment in Novaya Gazeta and Others v. Russia – one of the last cases against Russia, concerning repression of freedom of expression – he examined the Court’s role in countering authoritarian threats. In conversation with RevDem, he reflects on its past and future work as a “watchdog for European democracies.”
Democracy in the Convention
Konstantin Kipp: The ECHR is not a constitution but a treaty primarily focused on the protection of human rights. Could you give our readers a brief introduction to the role of democracy within the ECHR? Does the Convention provide a right to democracy that extends beyond the classic “democratic” human rights, such as freedom of expression? More broadly, would you say that the idea of effectively protecting human rights in a non-democratic system is merely a thought experiment, making the protection of human rights inseparably linked with the enforcement of democratic principles?
Darian Pavli: There are at least two ways to answer that question, drawing on the Court’s jurisprudence. First, referring to what the preamble to the Convention calls “an effective political democracy” as a precondition for the enforcement of this European bill of rights. This is at the level of fundamental values underlying the Convention, to which the Court has also added the rule of law, as a principle that permeates the entire document. Relying on this framework of values, the Court has held that democracy is actually the only political system that is compatible with the Convention. In doing so, the Court has gone further perhaps than other universal or regional human rights bodies.
Secondly, at a more technical level but closely tied to the first point, the Convention’s provisions on civil and political rights (Articles 8 to 11 in particular) require the Court to determine, in any given case, whether an interference with such rights has been “necessary in a democratic society”. In order to apply these provisions, the Court must necessarily have a normative understanding of what is meant by “democratic society” in this context. By the same token, any significant deficit in fundamental-rights compliance – significant in the sense that it goes beyond the facts of a few isolated cases and/or is driven by illegitimate motives – ought to be treated, almost by definition, as a “democratic deficit”.
Does this amount to a “right” to democratic governance for individuals? I suppose one could say so, at least in an indirect sense. But of course, one cannot bring a complaint to the Court for being denied the right to live in a democracy as such; it would have to be a claim about specific interferences with civil or political freedoms.
In some contexts, such as Article 18 of the Convention, the Court’s analysis has to include a review as to whether there have been anti-democratic (or “ulterior”) motives in interfering with Convention rights.
In your concurring opinion, you raise the question of whether the Court should assess respect for democratic standards based on an abstract, idealized definition of democracy or whether it should always take into account the specific democratic system of the respondent state. On the one hand, democracy is a contested concept for which there are “nearly as many definitions as there are analysts.” On the other hand, at least within the European Union, scholars have recently identified the emergence of a “European democratic society,” with the ECtHR said to have played an important role in shaping this common democratic understanding. In your view, how much do definitions of democracy differ among the states under the Court’s jurisdiction? If established, would the idealized form of democracy you mention strongly contrast with national definitions, or would they rather overlap?
The Court has, understandably and wisely in my view, refrained from seeking to provide an exhaustive definition or delimitation of democracy. Of course, the case law is full of references to the core building blocks of a “democratic society”, such as a required tolerance and open-mindedness towards minority views and interests, beyond simple majority rule. And again, respect for rule of law is another fundamental building block. These form part of the “common heritage” of European traditions to which the preamble refers; in a sense, the non-negotiable core. At the same time, the Court has recognised that there is a degree of diversity within that shared heritage. That effective democracies – or aspects thereof – may come in different shapes and flavours: for example, when it comes to election systems or constitutional arrangements for protecting various constituencies within the country and so on. This is also inherent in the concept of the margin of appreciation, which suggests that there may be room for more than one (single) “democratic solution” in balancing fundamental rights in any given context. A variety of approaches may be permissible, provided they fit within the core parameters of a “democratic society.”
My concern in the separate opinion you have cited is not that we lack a precise definition of this idealised notion of democracy. It is that, in deciding individual cases and in “taking stock” of problematic patterns, the Court should go beyond that abstract notion and take note of the real-world state of democracy in the country concerned – at least, where there are good reasons to be worried about widespread or systematic violations.
A Watchdog of Democracy
The ECtHR was conceived from the outset as a backstop against authoritarian regression. Given developments such as those in Russia, one must consider whether the Court has been able to fulfill this role. While it is difficult to blame a court that cannot enforce its own judgments, in your concurring opinion, you raise the question of whether the Court could have done more – or done better. You trace the Court’s jurisprudence on human rights violations during the process of establishing Russian authoritarianism. Using a metaphor, you explain that it has mostly focused “on the health of individual trees” and may have failed to draw a broader picture of “the fire raging in the forest.” Do you believe that had the Court addressed Russia’s failure to comply with democratic requirements in a more comprehensive way, it could have prevented or at least slowed its authoritarian regression? How would such a process have unfolded, and what lessons can be drawn for the future? Could you provide insight into the “stock-taking tools” you mention that might help in similar cases going forward?
It is hard for anyone (or certainly for a sitting judge) to speculate whether a different approach by the Court could have slowed down anti-democratic tendencies in any given society. Political scientists and other observers would be better placed to assess this. For me the answer is relatively simple: the Court should do what it was designed to do, which is ring the jurisprudential alarms on a democratic crisis when it sees one approaching or materialising, through its own lens of (systemic) fundamental rights compliance. One can perhaps ask no more, but also no less. It is for other actors to judge what impact the Court’s rulings might have had, or how they can be used and enforced for better impact. This includes, of course, the political bodies of the Council of Europe, as a club of democracies. But the Court can help these actors, in my view, by engaging in better jurisprudential “stock-taking”.
How could this be done in practice? This involves considerations of a more technical nature, and I have proposed some options in my separate opinion in Novaya Gazeta; without ruling out the need for the Court to develop new procedural tools. But there are some fairly obvious candidates. For example, the Court has used for many years Article 46 indications to identify “general measures” that a State might take in addressing structural or systemic problems that go beyond the contours of an individual case (in addition to case-tailored general measures). This counts, of course, on the mediation of the Committee of Ministers as the body in charge of supervising the execution of judgments and carrying forward the dialogue with the State involved. The Court typically develops such general measures by reviewing or recapitulating a line of case law in which similar violations have been found.
I do not see why this tool cannot be used to “name”, say, structural problems with the laws and practices governing freedom of assembly or the media, regulation of electoral speech, the rights of the political opposition or any other core aspects of a functioning democracy. Article 46 was not meant to be deployed for property cases or other technical matters alone.
While the Russian case may serve as a negative example regarding the effectiveness of the Court’s work, there are other, more promising ones. In 2021, in the judgment of Xero Flor w. Polsce sp. z o.o. v. Poland the ECtHR held that the Polish Constitutional Tribunal – which had been captured by Poland’s former right-wing government with authoritarian tendencies – is not a tribunal established by law. When the pro-democratic coalition of Donald Tusk regained power, the Polish Constitutional Tribunal issued judgments that hindered efforts to rebuild the rule of law in Poland. The Polish Parliament, the Sejm, then declared that it would ignore the decisions of the captured court and justified this stance by referencing the ECtHR’s judgment. What are your views on this process? Does this suggest a way in which the ECtHR can play an effective role in protecting or promoting democratic and rule of law requirements – by providing proponents of these values within national states with an authoritative basis for their actions that their opponents cannot easily dismiss as a ‘political’ attack?
I cannot comment on any specific legal questions that might have arisen in this context, whether prior to or following the adoption of the Xero Flor line of case law.
However, in general terms, I would say that the Court’s jurisprudence related to various aspects of what is sometimes called “the Polish rule of law crisis” is a positive example of the Court’s engagement with these issues in recent years. This despite a certain initial delay in the processing of these cases. At the same time, we should recall that important rulings on the Polish situation were also handed down by the Court of Justice of the European Union. From what I can tell, the approaches of the two European courts have been largely consistent and mutually reinforcing, which is something to be welcomed in my view.
I believe the combined effects of these rulings from Strasbourg and Luxembourg have been useful in charting a “general correction course” for the Polish situation, despite any remaining issues to be resolved.
When you have such large-scale interferences with the autonomy and governance of the judicial branch, undoing their effects is no simple matter. And there is a lively and important debate underway in Poland (and other countries facing similar issues) as to how to undo the damage, while maintaining respect for rule of law principles.
Threats to the Court
While a strong court with a high reputation has the potential to serve as a safeguard against authoritarian threats, it also carries the risk of becoming an enabler of such practices. In the past, it has been claimed that national governments attempted to install partisan judges at the ECtHR. For instance, the former Polish PiS government submitted candidate lists that were rejected by the Parliamentary Assembly of the Council of Europe – the body responsible for electing ECtHR judges – three times. As a result, the Polish judge on the Court had to remain in office long beyond his mandate. Do you believe there is a risk that governments could ever succeed in placing partisan judges at the ECtHR?
As is well known, the primary responsibility for ensuring that all persons elected as ECtHR judges meet the highest standards of integrity and professionalism rests with the Parliamentary Assembly of the Council of Europe (PACE). PACE members have direct democratic legitimacy as they come from the legislatures of all Member States. By the way, this is also why the criticism you see sometimes of Strasbourg rulings by “unelected judges” is misplaced and factually incorrect; Court judges are in fact elected by this representative body.
Candidate lists may be rejected for various reasons, but the rejections suggest that the process itself is rigorous and taken seriously by the multiple bodies and filters involved in the selection process. At the end of the day, it is the responsibility of the Assembly and the various political groups within it to ensure that all candidates are persons of the highest personal and professional esteem, in line with what Article 21 of the Convention requires.
The International Criminal Court (ICC), another treaty-based court with international jurisdiction, is currently facing severe threats. The new U.S. president, Donald Trump, recently issued executive orders seeking to impose sanctions on the ICC. Do you believe that the ECtHR – especially if it takes on a more prominent role as a “watchdog of democracy” – could face similar threats in the future? What measures could be taken to protect the Court and ensure its persistence?
I think it is natural to expect a certain degree of (greater) pushback if the Court were to take a more robust role as a democracy watchdog. Such a role would probably require the Court to address more directly matters that may be perceived as going into more “political territory”, though staying fully within its own judicial role. But democracy is not only, or even primarily, about technicalities.
The Court was not designed to be just a “fair weather” remedy, if we look at the drafting history of the Convention and its role over the past six decades. It was meant to act as one of the European bulwarks against anti-democratic tendencies, including in times of headwind and rough seas. In these challenging times, it is illuminating to look back at the founding days. In the words of Pierre-Henri Teitgen, one of the Convention’s founding fathers, “It is necessary to intervene before it is too late.”
The Convention is, at the end of the day, a pact of collective security. If the collective membership of the Council of Europe wishes the treaty and the Court to remain relevant in the coming decades, they ought to support the Court in that ongoing mission. As European democracies seem called upon, in this era, to take a greater role in defending the international legal order, preserving democracy at home needs to be the first order of business.
