The Populist Challenge to the European Court of Human Rights

Abstract

The past decade gave rise to serious criticism of the ECtHR. This article analyzes the position of the ECtHR with regard to a more recent phenomenon challenging the ECtHR – an unprecedented wave of populism in Europe. The article argues that the rise of populism not only intensifies the pressure on the ECtHR; it poses a serious and distinctive challenge to the ECtHR. What makes the populist challenge to the ECtHR distinctive is the combination of the ideological basis of populism, populists’ style of political communication and its resonance within the general public. The article takes stock of the ECtHR’s institutional setting through the prism of the populist challenge. It concludes that the Strasbourg Court is quite well-equipped to prevent or withstand eventual populist attacks targeting the structural features of the Court or the judicial personnel. The main features of the ECtHR’s resilience are decentralization of the system, rather high level of judicial self-government and institutional safeguards of judicial independence. However, populism is very strong in another anti-court strategy – achieving gradual erosion of an institution through change of public discourse and delegitimization. By including the Strasbourg Court in the narrative of blame and channeling the people’s resentment against the ECtHR, populists possess a significant capacity to mobilize the people and shift the discursive frame surrounding the ECtHR, which can distort the social and political origins of the ECtHR’s independence and authority. Such a scenario is particularly dangerous for the Strasbourg Court since the populist main strength matches the ECtHR’s vulnerability to delegitimization manifested in the past decade.

Keywords: European Court of Human Rights, populism, criticism of the European Court of Human Rights, judicial independence, judicial accountability, judicial self-government, crisis of liberal democracy, global constitutionalism, European constitutionalism, court curbing