1.1 The Court’s Interpretive Equipment in the Populist Age

In a widely cited article published in 2018, the then-president of the European Court of Human Rights (hereafter, ‘the Court’ or ‘the ECtHR’) Róbert Spanó distinguished two main phases in the relation of the Court to the forty-seven (now forty-six) state parties to the European Convention on Human Rights (hereafter, ‘the Convention’ or ‘the ECHR’) to date.

The first, called the ‘substantive embedding phase’, spans a forty-year long period since the Court started operating in 1969 until the 2010s during which the Court ‘gives substance to these norms for the primordial purpose of infusing them into the domestic legal systems’.Footnote ¹ By ‘giving substance’, Spanó refers to the establishment of general principles defining the grounds, content, and scope of the Convention rights, considering the irremediably short and abstract wording of the document. This interpretive ‘edifice of human rights’,Footnote ² however, was built with the indispensable premise lodged in Article 1 of the Convention that state parties are the primary interpreters of these rights, reflecting a central iteration of the principle of ‘subsidiarity’ organizing the allocation of jurisdictional authority in the system. The Court is and should remain a ‘supervisory organ’ for the domestic implementation of the Convention. Offering interpretive guidance to national authorities was therefore pivotal to the Court’s task of embedding the Convention into the domestic legal landscape.

The second phase, described by Spanó as the ‘procedural embedding phase’, marks a significant recalibration of the Court’s role vis-à-vis national authorities since the 2010s. While the Court ensures that these authorities genuinely engage with the rights and associated obligations autonomously defined by the Court, it grants these authorities more discretion in how to fulfil these obligations, including in the requirement of proportionality assessment for alleged interferences. In so doing, the Court has reinforced another iteration of the principle of subsidiarity at the level of interpretation – to the point that we are still living, in Spanó’s words, in the ‘age of subsidiarity’. Reflecting this evolution, the so-called margin of appreciation doctrine found a place in the Preamble of the Convention as a result of Protocol 15 signed in 2018 and entered into force in 2021.

Three years later, Spanó published another article entitled ‘The Rule of Law as the Lodestar of the European Convention on Human Rights’,Footnote ³ signalling a change of tone and pinpointing the potential limits of the procedural embedding phase. The article highlights how the Court has strengthened its scrutiny of the separation of powers and judicial independence under Article 6. Spanó cites the recent case law pertaining to the dismissal of judges in Hungary and Poland, which ‘will be subject to strict scrutiny by the Court on the basis of the principle of the irremovability of judges’.Footnote ⁴ Moreover, Spanó argues, ‘judicial independence is only one of the prominent manifestations of a broader development towards a more robust enforcement of the rule of law which is now permeating the Court’s jurisprudence’, therefore pointing to a more attentive role of the Court in this domain.Footnote ⁵

But attentive to what? Does the Court’s renewed scrutiny in this domain respond to isolated and country-specific events, or is it speaking to a wider and patterned phenomenon both within the state party under scrutiny and across the European region?

The attack on judicial independence is not an isolated concern in at least two respects. First, it has wider consequences for the very machinery of the system of the Convention. When the guarantees of the independence and impartiality of domestic judges are compromised, the premises of the subsidiarity principle, and the very notion of ‘shared responsibility’ ardently promoted by both state parties and the Court, crumbles. Procedural and admissibility provisions, such as the requirement of exhaustion of domestic remedies (Article 35 of the Convention), are particularly concerned. Indeed, one of the normative points of subsidiarity is that there is an effective and available remedy for domestic courts to examine compliance with the Convention (also reflected in Article 13 of the Convention) and enforce its substantive rights – a remedy that is closer to the circumstances of the alleged violation. When an apex court is effectively captured by the government of a state party, individuals cannot rely on that remedy any more – and this applies to all substantive provisions. This highlights the crucial role of the rule of law under Article 6 as the ‘lodestar’ of the Convention in the subsidiary constellation of the system.

Second, the attack on judicial independence is a particularly grave symptom of a wider and multifaceted erosion of the democratic process in Europe with significant implications for other central provisions of the Convention. The erosion affects different stages of the process in different ways: the deliberative stage may be distorted by a majority tightly controlling the informational and deliberative sphere, obstructing the circulation of opinions and facts and preventing democratic subjects from discussing and deliberating public affairs. Such distortion does not necessarily affect the very capacity of individuals to exercise democratic rights, such as freedom of expression (Article 10 of the Convention). It rather affects the background conditions that render the exercise of these rights meaningful and consequential. The same symptom appears when a parliamentary (super)majority marginalizes the opposition by expediting lawmaking procedures or subjecting it to enhanced disciplinary proceedings. If needed, electoral norms and institutions may in turn be altered or captured just enough to bend the verdict in favour of the incumbents. Here too, ‘free’ elections may formally be guaranteed when conceived as a mere equal entitlement to vote, but such a right loses much of its normative purpose if the democratic process is severely distorted as a matter of informational and deliberative infrastructure. On this view, rather than the rule of law only it is the value of democracy that is being stripped from its form. In fact, the attack on the rule of law paves the way for a much more comprehensive and insidious political project orchestrated by the incumbents, a project also reflected in a sweeping practice of constitutional amendment or replacement. Its manifestations – dressed in the terms of the Convention – are only slowly reaching the Strasbourg bench.

Two interrelated questions follow from this brief sketch. The first amounts to systematizing the aforementioned symptoms to establish whether one is witnessing a distinct attack on democracy and the rule of law, distinct from totalitarian or authoritarian variants in its ideational dimension and its mode of operation. The second is to return to the Court and its role in responding to this phenomenon, and whether it may call for inaugurating an age of ‘post-’ or ‘selective subsidiarity’, requiring the Court to revisit and amend the very substantive principles that the ‘procedural embedding’ phase took for granted. While the rule of law has already been ‘upgraded’ with reference to judicial independence, should the Court recalibrate its scrutiny to the wider symptoms just outlined?

The hypothetical answer to the first question is that the democratic process being concomitantly eroded at various stages is not a coincidence. It can be reconstructed as reflecting the core characteristics of authoritarian populism. While modern history has known notorious examples of left-wing and ‘progressive’ or ‘democratic’ populism from the Populist Party in the United States in the late nineteenth century to Peronism or Chavismo in Latin America in the mid and late twentieth century to the more recent experiences of Syriza in Greece or the Five Star movement in Italy, Europe has known an exponential spread of markedly right-wing populism in the last two decades. Indeed, it is today difficult not to find one or several political parties (in government or in opposition) in any of the Council of Europe (hereafter, ‘the CoE’) states whose discourse, manifesto, or record of policies is not described (by politicians, the media, NGOs, civil society, or academia) as populist, often if not always of an authoritarian kind. This goes in tandem with a massive increase of electoral support for these populist parties across all states in the region.Footnote ⁶ To quote just two remarkable numbers, from 2000 until 2017 populist parties in Europe almost doubled (from thirty-three to sixty-three), while the vote for populist parties reached 24.1 per cent (or 17.7 per cent if one considers right-wing populism only) while in 2000 it was only 8.5 per cent.Footnote ⁷ Central and Eastern European countries – with the clearest examples of Hungary (Fidesz) and Poland (PiS) but also the Western European examples of Italy (Fratelli d’Italia), the United Kingdom (the Conservatives and Reform), Germany (AfD), and the Netherlands (PVV), following the earlier steps of Austria (FPÖ) and Switzerland (SVP) – have all experienced authoritarian populism in the last two decades, either in government or leading the opposition. The authoritarian kind of populism has earned its currency as the descriptor of a new age of democracy in Europe, and an impoverished one. Among other things, what brings all these countries all together is that they are signatories of the Convention.

At its ideational core, populism thrives on the antagonism that a ‘corrupt elite’ has concertedly neglected the ‘true’ or ‘real people’ and, correlatively, that only populists can legitimately represent them. The ‘will of the people’, populists claim, should be restored. To that end, the authoritarian variant of populism promotes a more direct representation of the people in the figure of a party, movement, or government leader and contends that only populists can represent the ‘people’. It employs a distinct register of democracy, a plebiscitary one, that has little regard either for subjects and minorities deemed not to belong to or represent the ‘people’ (including the ‘elite’ politicians and parties), or for the democratic channels and procedures that mediate the will of the people, whether these are the core institutions of the state, such as the legislative and the judiciary, or generally the public sphere construed as formative of the democratic will in a pluralist polity. This is because the ‘will of the people’ in the populist iteration pre-exists any instance of mediation – and if any, the role of institutions and channels is to facilitate the enforcement of that will. In practice, the distinct operation of populism is not to dismantle institutions and channels of accountability, but to run them against their purpose and preserve only the facade of democracy. On this account, the assault on judicial independence clearly appears as only the tip of the iceberg; the erosion of the informational and deliberative sphere, or the alterations to the parliamentary and electoral processes, can be anchored in the same populist distortion of democracy – to which the rule of law (its violation) is instrumentally connected.

Returning to Spanó’s point that the rule of law can operate as the ‘lodestar’ of the Convention, the above considerations lead to seriously questioning whether a single article of the Convention, namely Article 6, can by itself detect and counter the populist wave. While it crucially matters to the effective machinery of the system, as previously indicated, Article 6 may ultimately gloss over the wider erosion of democracy. This invites us to tackle the second key and wider question: is the Court more generally apt and equipped to respond to authoritarian populism considering its human rights-specific, supranational, and subsidiary jurisdiction? This investigation examines the implications of the populist predicament for the role and practice of the Court in its position of ultimate interpreter of the Convention. Conceived as an interdisciplinary project, it aims to bring in closer contact the new realities of the populist age with the Court’s interpretive record of protecting democracy and the rule of law through the medium of rights – with a view to ‘updating’ the Court’s interpretive equipment to better respond to this phenomenon. The values of democracy and the rule of law inform the Court’s catalogue of rights and their attached principles of interpretation since the birth of the Convention system. They do not only derive specific rights and associated obligations that form the backbone of the democratic process, but they also have a particularly strong resonance in the history of the Convention system, first justifying an ‘alarm bell’ system that state parties could trigger to prevent the return of totalitarianism in Europe.Footnote ⁸

Furthermore, the Court has also had many occasions to expand on the meaning of these values and derived principles in its interpretive practice. The protection of democratic debate (under Articles 10 and 11), for example, occupies a prime place in the Court’s register of democracy. The Court’s mantra that freedom of expression is ‘applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population’Footnote ⁹ is a case in point, or the position that ‘democracy does not simply mean that the views of the majority must always prevail. A balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.’Footnote ¹⁰ In relying on these principles for its adjudicatory routine, the Court speaks not only to the parties to the case, but to one of the first measures that autocrats took in reaching power in the twentieth century, namely, to brutally silence opposition, oppress minorities, and pay lip service to the rule of law. One may be content that the Court has such a strong grips on these cardinal values and ensures that its scrutiny remains aligned with them. But if one agrees that the threat to democracy and the rule of law has changed in how democracy and the rule of law are eroded, the question remains as to whether the Court has tailored its interpretive apparatus.

1.2 Outline of the Analytical Framework and Chapter Summary

This project incorporates populism as an ideational construct and as a practice of government and strives to maintain them in a mutually informative relationship. Each insight, it must be borne in mind, belongs to a distinct disciplinary framing. The former predominates among political theorists assigning normative and explanatory value to ideology. The latter is more empirically informed and attends to the effects of populist rule without necessarily distinguishing populism from broader categories of (competitive or legalistic) authoritarianism or illiberalism. In this investigation, I combine elements from both approaches by explaining, as far as possible, how the main effects of populist rule can meaningfully reflect the ideational basis distinctive of authoritarian populism. This combination is also needed to evaluate the Court’s available equipment in effectively responding to populism, as I explain in what follows.

On the one hand, the project endorses the ideational approach to populism understood as an ontology of politics and popularized by Mudde,Footnote ¹¹ rather than as a strategy for mobilization and an emancipatory project associated with left-wing, inclusive, and ‘democratic’ populism in the tradition of Laclau.Footnote ¹² On the ideational account, authoritarian (or right-wing) populism defines two antagonistic groups that co-exist within the same polity in moral terms, the people and the ‘elite’. On this view, ‘populism is in essence a form of moral politics: “the élite” and “the people” is first and foremost moral (i.e., pure vs. corrupt), not situational (e.g., position of power), socio-cultural (e.g., ethnicity, religion), or socio-economic (e.g., class)’.Footnote ¹³ On the other hand, the project employs the resources of normative political theory – in particular, democratic theory – to identify the democratic norms and value that populism specifically but insidiously erodes. Building on the recent and seminal work of UrbinatiFootnote ¹⁴ and Nässtrom,Footnote ¹⁵ I argue in Chapter 3 that populism distorts democratic deliberation and representation and corrupts the rule of law.

This normative basis is needed to clarify how parasitic populism is to democracy and the rule of law. While populism reclaims the power of the people, I suggest that it in fact entrenches and exacerbates deliberative and representative inequalities and ravages even the thinnest account of the rule of law. The normative premise here, which I also discuss in Chapter 3, is that deliberation and representation and their equality-enhancing functions are necessary to the justifiability of the democratic process. Corrupting the rule of law shows how fierce the populist attack is on these core requirements. While this constitutes a thin, yet robust analytical framework centred on the cardinal values of democracy (the distortion thereof) and the rule of law (the corruption thereof), I believe it has sufficient normative pull to guide the evaluation of the Court’s interpretive equipment given the resonance these values have in the Court’s reasoning.

However, to link the normative and theoretical discussion of populism to the Court’s context and practice, one requires an overview of how populist governments operate once in power. This is needed to identify, in more practical terms, which Convention rights are implicated in these populist practices, and which aspects of these rights may be vulnerable. Indeed, the discourse of populism may not necessarily coincide with how a populist government, in practice, reshapes the domestic legal landscape and how Convention rights are affected as a result. This is why, in Chapter 5, I survey key effects of populist rule in three ideal-typical domains in the domestic sphere: the media, the electoral, and the judicial domains. I then link these effects to three corresponding portions of the Court’s case law: freedom of expression and freedom of assembly and association (Articles 10–11); the right to free elections (Article 3 Protocol 1); the right to a fair trial (Article 6) and the ‘bad faith’ provision (Article 18), respectively. This selection establishes the point of departure for the subsequent assessment of the Court’s equipment in responding to these effects that I conduct in Chapter 6, 7, and 8.

The populist mode of attack across these domains is strikingly similar, and I label it infrastructural rather than coercive in how they affect the exercise of democratic rights. If populist governments resort to coercion by curbing the freedoms of individuals directly, they risk losing the democratic facade that conferred legitimacy on them in the first place. A subtler approach centres on the infrastructural prerequisites that make the exercise of such rights meaningful and consequential. While infrastructural erosion may have direct agential consequences – for example, the dismissal of a judge, an opposition politician subject to disciplinary proceedings – it forecloses the normative horizon of the democratic process understood as the pursuit of mutual justifiability.Footnote ¹⁶ Regarding the informational and deliberative sphere, for example, dissenting journalists are not assassinated, arrested, surveilled, or even violently intimidated with the coercive and arbitrary force of the security apparatus typical of an authoritarian state. The function of the judiciary is not to systematically indict, sentence, and jail them on dubious grounds that are too familiar of the standard authoritarian playbook. Rather, populist governments subtly and indirectly incapacitate the media, both public and private, through a much less violent but equally effective vehicle: infrastructure. The specific form that such an attack takes, varies. Independent outlets find themselves ineligible for state funding. They find themselves subject to aggressive takeovers from powerful conglomerates closer to the government. Journalists may be intimidated and arbitrarily sanctioned, but only with the help of the softer instrument of oversight, regulatory and supervisory bodies conveniently packed with government loyalists. Common to all these examples is the infrastructural rather than coercive mode of affecting these rights, an erosion that progresses under the veneer of legality. The infrastructure of democratic rights is the privileged target of authoritarian populists in power.

Now, this erosion has been identified by political scientists and constitutional scholars as applicable to a wider conceptual, institutional, and geographical spectrum than the one contemplated here. In a pioneering book spanning examples from the United States to Peru and Hungary, Levitsky and Zibblatt showed that ‘the erosion of democracy takes place piecemeal, often in baby steps. Each individual step seems minor – none appears to truly threaten democracy’Footnote ¹⁷ and pointed out the capture of ‘referees’ across core and regulatory bodies of the state to bend the rules of the system to the incumbents’ advantage. Varol coined to concept of ‘stealth’ to refer to the way incumbents ‘protect and entrench power when direct repression is not a viable option’.Footnote ¹⁸ The literature in comparative constitutional law has also produced a plethora of concepts pointing to the erosive degradation of democracy and the rule of law orchestrated from within the constitutional framework: ‘constitutional capture’,Footnote ¹⁹ ‘abusive constitutionalism’,Footnote ²⁰ ‘autocratic legalism’,Footnote ²¹ ‘anti-constitutional populist backsliding’,Footnote ²² ‘democracy decay’,Footnote ²³ or ‘constitutional chicanery’.Footnote ²⁴ This investigation takes place within more defined parameters with the aim of adding a level of accuracy, rigour, and depth in more specific context. Conceptually, it relies on the normative elucidation of populism in its relation to democracy and the rule of law. Geographically, it is confined to the Convention membership and institutionally to the machinery of the Convention system and the strictures of the Court’s practice of adjudication.

It also follows from this that the present investigation focuses on one supranational judicial actor, namely the Court, and does not specifically address the other actor in Europe, namely the Court of Justice of the European Union (hereafter, ‘the CJEU’). This is not only because each court adjudicates a vastly different subject matter – the Convention and the European Union (EU) Treaties, respectively – or because the systems of which each court is a part do not necessarily interact, even though the CJEU relies on the Court with respect to its human rights jurisprudence. It is primarily because the CJEU, together with the European Commission and the European Parliament, has been engaging in a distinct, concerted, and treaty-based response by reference to the ‘values’ of the European Union (Article 2 of the Treaty on the European Union) and has resorted to infringement procedures (Article 7 of the Treaty on the European Union) against both Hungary and Poland resulting in the imposition of hefty daily penalties on both Member States.Footnote ²⁵ Several mechanisms, such as the adoption of the Rule of Law Conditionality Regulation, have reinforced a previously modest arsenal against the deterioration of the rule of law within Member States.Footnote ²⁶ This response is therefore centred on the EU institutional framework.

Rather, while this investigation extensively refers to the experiences of Hungary and Poland, its objective is to contribute to this wider field through the lens of the Convention and the Court, joining up the study of populism to the Court in a specific and rigorous manner. Indeed, my analytical framework of populism is not tied to the experience of specific European governments within the Convention system, but it will appear that only some manifestations of populism have reached the confines of the Court’s adjudication and these manifestations predominantly reflect the right-wing, exclusive, and authoritarian variant of populism with an emphasis on the experiences of Hungary and Poland. However, these experiences and their reflection in the Court’s case law remain illustrative rather than constitutive of the analysis. The core ambition is to utilize a theoretical account of populism complemented by the ideal-typical effects of populist rule for the purpose of analysing the Court’s interpretive equipment in effectively responding to it. The emphasis on Hungary and Poland is contingent and premised on the fact that these populist governments have benefited – and, in the case of Poland, benefited until October 2023 – from a large majority in their respective parliament since the 2010s and have profoundly remodelled their domestic constitutional landscape under the infrastructural mode of attack previously outlined. This allows for observing how the effects of populist rule have filtered through the Convention catalogue of rights and the Court’s case law, as we shall see in Chapters 6, 7, and 8. In this sense, this project has a generalizable and prospective ambition beyond the irremediably particular trajectory of certain states and regions in Europe.

The other important boundary of this project is the concentration on a specific bundle of rights in the Convention – the democratic ones, with the addition of rule of law provisions, and their principles of interpretation that the Court has developed over the years, together with the mode of resolution of conflicts of rights, in particular proportionality. However, and as already indicated, these rights and their principles of interpretation are not defined independently from each other – rather, the Court connects them conceptually via the notion of ‘democratic society’, which then offers a vantage point for the task of evaluating the Court’s equipment in a condensed, yet comprehensive manner. As will appear through the analysis of the case law, the Court derives key principles and obligations – themselves composed of relatively clear normative criteria and thresholds – from that overarching notion. The implication here is that if one wants to evaluate the Court’s ‘anti-populist’ equipment meaningfully, reconstructing the Court’s ‘democratic society’ in this holistic fashion appears to be required. Indeed, the degree to which this notion is systematized by the Court itself is limited. Therefore, in Chapter 4, I offer a normative reconstruction of the Court’s approach to democratic deliberation and representation, and how these tenets feed into the Court’s understanding of specific rights and the resolution of cases. I also identify where, in the structure of the Court’s review, ‘democratic society’ plays a decisive role, namely in proportionality analysis when the respondent state attempts to justify their right(s)-interfering measure. The practice of proportionality testing, then, appears as a particularly useful terrain to gain evidence as to how decisive the Court’s ‘democratic society’ is to the actual resolution of cases – that is, to the finding of a (non-)violation.

Now, it is indisputable that authoritarian populists assault other rights, including other rights protected by the Convention, in a much more direct fashion. Think, for example, of the ‘hierarchy of assemblies’ created by the PiS government in Poland in 2016, making it impossible to organize a (counter-)demonstration where a recognized ‘cyclical assembly’ organized by the public authorities takes place.Footnote ²⁷ Memory laws in Poland and Hungary since the rise of PiS and Fidesz to power, which legislate the correct interpretation of key historical events and simplify responsibilities for crimes of the past, also serve the populist logic of distorting democratic and scientific deliberation, including through the imposition of civil and penal sanctions.Footnote ²⁸ But as far as freedom of expression (Article 10), freedom of assembly and association (Article 11), and the non-retroactivity of criminal punishment (Article 7) are concerned, the Court has a solid interpretive equipment and record of cases at its disposal to respond to these direct attacks,Footnote ²⁹ as we shall also see in Chapter 6.

Furthermore, one finds in the Court’s recent case law decisions that have seemingly countered direct assaults of populist governments on access to abortion in PolandFootnote ³⁰ and on the rights of asylum seekers in the form of ‘pushbacks’ failing to offer them a domestic remedy and an individualized decision for their removal,Footnote ³¹ as well as on sexual minorities such as same-sex couplesFootnote ³² and transgender people.Footnote ³³ In most of these cases, the interpretive arsenal of the Court, in terms of negative and positive obligations as well as non-discrimination, appears apt. However, whether the Court has analogous equipment to detect and counter the erosion of democratic and rule of law infrastructure is less clear and needs a more nuanced analysis. While the Court can be seen as having extended rule of law provisions to judicial infrastructure (e.g., disciplinary chambersFootnote ³⁴ and national judicial councilsFootnote ³⁵ under the ‘lodestar’ of Article 6), this investigation zooms in on select domains of democratic infrastructure that are particularly at risk of populist erosion.

1.3 The Key Claims of the Book

The infrastructural dimension of the populist attack poses an acute challenge to the Court’s canons of interpretation for protecting democratic rights, I argue. This is because the Court has been historically preoccupied with what I call existential threats to democracy along the totalitarian lines of Nazism, fascism, or simply fully-fledged authoritarianism. The Court has constructed an account of democratic minimalism based on protecting the rights of political opposition and the place that pluralism and dissent ought to occupy in the democratic arena, which is best illustrated by what I define as the principle of ‘deliberative pluralism’ underlying the Court’s interpretive repertoire under Articles 10–11 (freedom of expression and freedom of assembly and association), as we shall see in Chapter 6. Under this framework, democracy is protected by a free and pluralistic debate on issues of public interest – and the Court is extremely attentive to finding whether there is any public interest justifying the exercise of expression within the scope of Articles 10–11, as we shall see. On this view, the ‘watchdogs of a democratic society’ predominantly patrol outside of the boundaries and in fact against the institutions of the state.

But conversely, the infrastructure of democratic rights has not been at the centre of the Court’s attention – and this constitutes the weak point of its interpretive equipment. Also in Chapter 6, I show how the Court has persistently fallen short of uncovering the interdependence between the stage of deliberation and the stage of elections despite celebrating their complementarity in principle. Indeed, I explain in Chapter 8 how the Court’s commitment to free elections, for example, has centred around the basic protection of the right to vote and the right to stand for elections, which the Court overarchingly defines as ‘the conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’ (Article 3 Protocol 1). Yet, in practice, these conditions essentially consist of protecting individuals against isolated instances of arbitrary disenfranchisement – again, a requirement without which there is no democracy to speak of. By the time individuals reach the voting booth, the populist capture of democratic deliberation through the informational and deliberative pathway has already been achieved – and the Court hardly examines whether the former justifies a much more robust scrutiny of the latter. This minimal and compartmentalized approach, I argue, does not suffice to grasp the piecemeal process of erosion – and, as a result, the Court’s ‘democratic society’ loses much of its relevance effectiveness.

It would be short-sighted, however, to claim that the Court is inherently ill equipped to address infrastructural erosion. For example, as I illustrate in Chapters 6, 7, and 8, the Court has reinforced its catalogue of ‘procedural guarantees’ attached to substantive rights of the Convention, which allows for protecting individuals from the arbitrary abuse of governments in precisely those institutional fora within the state that are vulnerable to populist capture. Take the example of a disciplinary procedure against an opposition member of parliament (MP) for having disrupted parliamentary proceedings (by using a placard, banners, and megaphone) in Karácsony and Others v. Hungary.Footnote ³⁶ The Court will be very attentive to the inclusion of the individual in the disciplinary procedure and require the government to offer reasons for the measures taken. But equally it will fall short of addressing the applicant’s contention that the government had transferred the disciplinary authority from an independent and pluralist committee to the parliamentary supermajority. All together, these procedural guarantees appear so minimal that the Court’s control risks turning a blind eye to the populist technique of maintaining the facade of a procedure while running it against its very purpose. More broadly, the Court does not delve into how the erosion of safeguards points to a distinct mode of attacking democracy and the rule of law, which challenges the adequacy of its ‘democratic society’ in principled terms. But equally, the Court is in principle open to consider, at the level of interpretation, that the meaningful exercise of democratic rights can be attacked from a variety of angles, one of which is distinctively infrastructural. This is more encouraging – but is it enough?

How can the Court better detect and respond to the distinct attack of populism in more principled terms? Throughout the book, and in a more systematic form in Chapter 9, I develop the argument that proportionality analysis is an appropriate and effective framework at the disposal of the Court to better detect and calibrate its response to authoritarian populism. In fact, a response only based on enhanced procedural guarantees seems irremediably insufficient since these guarantees will be themselves subject to proportionality analysis as part of the Court’s review process. We therefore need a more principled, systematic, and comprehensive approach. I believe that the Court could utilize the space that the various steps of the proportionality test afford it to inquire about the infrastructural erosion of democracy.

This argument has several layers and claims that are detailed in the concluding Chapter 9 and are only summarized here. When a respondent state party is asked to substantiate the purpose of the interference, its rationality and necessity, or when it must conduct a balancing exercise as to the impact of the interference on the alleged victim, the Court is not only mobilizing democratic and rule of law values that populists precisely attempt to subvert. Indeed, as much as democracy involves a vacuum as to the locus of political power, proportionality involves a vacuum as to the justifiability of interferences with rights. All the stages of proportionality assessment introduce elements of contingency, uncertainty, opposability, and fallibility that are all equally toxic to the ontological, exclusive, and antagonistic logic of authoritarian populism. As a result, the Court could develop the criteria informing these various steps accordingly and tailor them to the populist playbook. In Chapter 9, I suggest more specifically that the Court build a more robust account of ‘legitimate aim’ that precisely tracks infrastructural erosion. The Court has not been totally foreign to this idea: in its parsimonious case law on Article 18, which prohibits governments from using restriction grounds other than the ones set by the Convention, the Court resorts to a wider spectrum of (infrastructural) variables pertaining to the broader legal and political context – and infers the predominant aim of the restriction on that basis. I argue that the Court should systematize its infrastructural inquiry across the three domains of populist distortion and calibrate its evaluation of the purpose of the interference under the regular proportionality assessment accordingly. The key premise here is that the Court has not utilized its normatively loaded account of ‘democratic society’ (developed in understanding the substantive rights themselves) to inform the evaluation of the government’s presented aim(s).

1.4 The Investigation in a Broader Scholarly Context

This book offers to study the nexus between authoritarian populism qua practice and concept, on the one hand, and the Court via the Court’s overarching notion of ‘democratic society’ and the interpretive principles that derive from it for understand rights, on the other hand. By taking democracy as the unit of analysis throughout the book – both descriptively and normatively – it aims to offer an original angle for interrogating the Court’s role in responding to the threat posed by authoritarian populism defined as a distinct threat to the Court’s democratic ethos.

Generally, this approach builds on my prior research on the foundations, content, and limits of the Court’s understanding of democracy, which have sustainably informed its resolution of cases.Footnote ³⁷ This body of research aims at systematizing and critically examining the Court’s approach to democracy through the lens of democratic and human rights theory and drawing implications for the very legitimacy of the Court’s authority in adjudicating rights over and above domestic democracies.Footnote ³⁸ Central to this broader project is the attempt both to move beyond a case-based approach to adjudication by reconstructing the overarching principles used by the Court, and to offer critical leverage as to whether its ‘democratic society’ is normatively sound and valuable. Because democracy inherently is a normative, open, and disputable concept, the Court’s ‘democratic society’ can be subject to robust normative scrutiny that bridges the Court’s interpretive equipment and the resources of normative political theory and political science. In this sense, this wider project aims to be simultaneously practice- and theory-responsive.

There exist two objections to this broader project that also have implications for studying the Court’s response to populism. First, it has been argued that the value of Court’s ‘democratic society’ as operating in its reasoning is mostly rhetorical. Sadurski for instance argues that ‘the ‘“democratic society” clause is used to “soften” the audience, as it were, and to prepare it for the conclusion on the issue of breach’.Footnote ³⁹ In this investigation and in the previous work just mentioned, I showed that ‘democratic society’ not only operates as a restriction clause in the proportionality test (at the balancing stage or proportionality stricto sensu) but also informs its principles of interpretation and derived obligations, helping the Court to identify prominent rights-holders and ‘watchdogs’ that are essential to preserving such a society in the Court’s eyes.Footnote ⁴⁰ The notion therefore feeds into both the rights and their grounds of restriction in a more consistent and normative manner than assumed, as I also show in Chapter 4. In systematizing such dialectic, I show that there is enough of a concept of democracy – if not a conception – that can serve the present investigation if populism primarily amounts, as I purport to show, to a severe distortion of democracy requiring an ‘update’ of the Court’s approach.

Second, one could raise the more general objection that by requiring the Court to ‘update’ its account of democracy in this manner, the project stretches into a realm reserved for the constitutional and ‘democratic’ arrangements of state parties – a critique that the subsidiary role of the Court would typically support. Indeed, by emphasizing the infrastructural dimension of the populist erosion – and by tailoring the Court’s response to this dimension, the project challenges its international and individual jurisdiction. This objection is reminiscent of the debate on the constitutional significance of the Convention systemFootnote ⁴¹ and the constitutional role of the Court. It is worth recasting the main pieces of the debate here and moving forward.

On the one hand, the international character of the Convention system is foundational in the way each signatory state incorporates the Convention based on its own constitutional specificities, reflecting the contractual model of international law based on state consent. In terms of their obligations, and following Article 46 of the Convention, state parties and all their public authorities (legislative, executive, and judicial) must abide by the final judgment of the Court to which they are a party (inter partes). While Article 32(1) of the Convention grants the Court final jurisdiction over ‘all matters concerning the interpretation and petition of the Convention’ and gives the Court the competence to determine the limits of its own jurisdiction, the Court remains an international organ established by an international convention. Further, the subsidiary relation between the Court and state parties makes the former a ‘supervisory’ organ only – the Court often says that the implementation of the Convention is a ‘shared responsibility’.

As a result, state parties remain the primary interpreters of the Convention and the only enforcers of the Court’s judgments, and the Court affords considerable weight to the democratic process and to the interpretation of domestic bodies in its own findings, including by ultimately allocating a margin of appreciation to the respondent state in specific cases. Subsidiarity also shapes the jurisdictional and remedial dimensions of the system, as we shall see in Chapter 4.

On the other hand, the individual character of the system is inherent in the Court adjudicating a dispute between the right(s) of an individual (or of a group of individuals) and a government law or policy, which does neither necessarily nor directly require examining the wider infrastructure of the respondent state party in question, depriving the Court of the reach of apex courts domestically.Footnote ⁴² While the Court’s authoritative role is having the ultimate say over the interpretation of the Convention, that same role is limited, in general, to declaring whether there was a violation of the Convention or not.

Yet this rather formal picture needs considerable nuances, and the relevant literature often employs the qualifier ‘constitutional’ to capture these nuances. What, however, is exactly the explanatory and/or normative value of the ‘constitutional’ qualifier in the Court’s context? In addition to the Court’s own contention that the Convention constitutes ‘the constitutional instrument of European public order in the field of human rights’,Footnote ⁴³ there are several aspects of the Convention system that have been qualified as ‘constitutional’. In the most abstract sense, the basic function of limiting what governments can do to their subjects invariably qualifies as constitutional.Footnote ⁴⁴ Having the authority to do so in the superior capacity of reviewing national legislation also qualifies as constitutional.Footnote ⁴⁵ Correlatively, the superior, constitutional, or sub-constitutional status of the Convention in the domestic hierarchy and the direct effect granted to the Court’s judgments have also been deemed constitutional.Footnote ⁴⁶ The judgments have in addition been deemed as having an erga omnes effect, which implies that a judgment against one state party equally binds all the other state parties to the Convention. As a result, individuals not parties to a case but in an identical situation to the victim of a violation can also claim a violation of the right in question.Footnote ⁴⁷ Several steps in the evolution of the system were instrumental here, such as the full judicialization of the Court following Protocol 11 (1998) and the direct access to the Court for applicants. In addition, the so-called pilot procedure, which allows the Court to tackle repetitive cases and reduce its chronic backlog by specifying remedial action, was also seen as making the Court akin to ‘constitutional justice’.Footnote ⁴⁸

Still, it is one thing to depict constitutional aspects in these predominantly formal and descriptive terms, and yet another to claim that the Court adjudicates a constitutional subject matter in normative terms, that it has or should have the power or legitimacy of constitutional review. While scholars have pointed to the relevance of the Convention to the relationship between constitutional organs of the state,Footnote ⁴⁹ as we shall see in Chapter 6, this relationship derives from specific Convention articles, rather than by anything indicative of an and overarching account of constitutionalism. This investigation suggests that (right-based) democracy – and to some extent the rule of law – generally have more descriptive and normative value than constitutionalism in the Court’s context. This value operates at both the procedural and substantive stages. As we shall see in Chapter 4, the primacy accorded to state parties in interpreting the Convention and the exhaustion of remedies principles are notably, but non-exclusively, premised on democratic grounds. More importantly, in resolving cases the Court refers to ‘democratic society’ in a far more relevant and decisive manner than to anything deemed ‘constitutional’ along the senses previously outlined.

It does not follow, however, that the Court’s ‘democratic society’ does not ramify into domains that are usually defined as belonging to the constitutional realm – but these incursions have a non-derivative basis in the Court’s own references to ‘democratic society’. This is pertinent, for example, for evaluating the current responses to populism offered by constitutional scholars: for example, heightened threshold for constitutional amendments or even eternity clauses do not map onto the Court’s jurisdiction, as we shall see in Chapter 3. Designing a response from within the Court’s subsidiary jurisdiction is therefore key. This is also pertinent to populism itself: constitutional theorists have indeed debated whether populism itself could reflect a distinct, and potentially desirable, account of constitutionalism.Footnote ⁵⁰ As previously outlined, the authoritarian variant of populism is contemplated in this investigation as a serious distortion, rather than a corrective, to one of the core values of constitutionalism, namely democracy. The book postulates that populism has a principled, albeit profoundly distorted, relation to democracy, while it relates to another constitutional value, namely the rule of law, in instrumental terms.