Introduction
Recent years have witnessed a revival of the seminal theory of John Hart Ely (Reference Ely1980), which provides a normative account of courts as guardians of the democratic process. Rather than intervening directly in substantive debates about rights, courts should concentrate on protecting and enhancing the democratic process, in particular democratic representation. As such, the ‘political process’ approach bypasses the so-called ‘counter-majoritarian difficulty’ (Bickel Reference Bickel1986) through protecting values embedded in the democratic system. In the words of Ely, judicial review should ‘police the process of representation’ (ibid., 73). Ely’s account contemplated acts of legislation whose effects undermine the representation of minority interests – in that sense, it paradigmatically concerned instances of abuse arising from within the democratic process and orchestrated by incumbents. However, Ely was mostly preoccupied with one core procedure, namely elections, and was concerned with legislative outputs primarily. In developing his ‘participation-oriented, representation-reinforcing’ (ibid., 87) approach, Ely targeted two central outputs: elected politicians actively blocking avenues of political change (by suppressing voices and votes) and minorities permanently being locked out of representation (due to hostility and prejudice).Footnote 1
In response to the underdeveloped potential of the original account and considering the consolidating systemic threats to democracy across various regions of the globe, scholars recently started outlining a more comprehensive account of judicial review specifically geared towards preserving democratic institutions and processes prone to internal abuse. The ambition is to protect all public authorities and power-holders – elected or non-elected – situated within the framework of a constitutional democracy. For example, Stephen Gardbaum has recently developed a Neo-Elyan account of ‘political process theory’ that identifies more comprehensively those institutions and procedures that could, if abused, undermine the democratic system in a systemic fashion (Gardbaum Reference Gardbaum2020, Reference Gardbaum2024). The impetus of the Neo-Elyan account is to vest the judiciary with an extended role of protecting and restoring democratic integrity. So far, however, the literature has focused on the relevance of this account across contemporary constitutional systems both in the Global North and the Global South (see the contributions in the ICON symposium and the Introduction by Dixon and Hailbronner Reference Dixon and Hailbronner2021). But the literature has not yet properly examined if and how the framework can be meaningfully utilized at the supranational, rather than just transnational or comparative, level of analysis.
In this article, I aim to transpose the Neo-Elyan concern onto the plane occupied by the European Court of Human Rights (hereafter, ‘the ECtHR or ‘the Court’). The project may seem counterintuitive: the Court is only mandated to adjudicate the rights enshrined in the European Convention on Human Rights (hereafter, ‘the ECHR’ or ‘the Convention’), while the (Neo-)Elyan is concerned with institutions and procedures only and precisely objects to the ‘general strategy’ which has been ‘to root in the document a set of substantive rights entitled to permanent protection’ (Ely Reference Ely1980: 122).Footnote 2
The challenge I raise is whether an extension of judicial review to a wider range of procedures and institutions can also develop through the medium of rights – and if so, to what extent this alternative path aligns with the Neo-Elyan project. The fact that human rights courts have a specific subject matter and a subsidiary jurisdiction by itself does not entail that the core institutions and procedures of a ‘constitutional democracy’ examined by Gardbaum are – or should be – immune to the Court’s review. I purport to show not only that the Convention rights are significantly and increasingly understood in procedural and institutional terms: while protecting individual entitlements, the rights’ nature, content and scope are defined in the light of a broader normative account that the Court terms ‘democratic society’ specifically governed by deliberative, representative and rule of law principles. In addition, while it acknowledges domestic primacy in scrutinizing restrictions adduced to these rights, the Court in recent years has shown particular interest in deriving ‘procedural safeguards’ in addition to the ‘substantive’ or ‘constitutive’ arm of rights, also in the context of salient attacks on systemic features of democracy and the rule of law such as judicial independence. These obligations have the effect of precisely prolonging Strasbourg’s scrutiny of procedures and institutions – in particular, legislative and judicial – from insidious and systemic abuse of executive power. In this sense, the Court is leveraging rights as the building blocks of a ‘political process theory’ to a much greater extent than Ely’s and Gardbaum’s accounts would envision.
The article proceeds in three steps. In Section ‘“Political process theory”: the basics’, I reconstruct the basic conceptual and normative framework developed by Gardbaum, identify how it departs from Ely’s original account and explain how such project overlaps with a wider trend in comparative constitutional scholarship. In Section ‘Political process theory in Strasbourg’ and ‘Preliminaries’, I transition to the context of the Court and the Convention. While pinpointing the jurisdictional disanalogies between the national and the supranational judiciary, I submit that there is no categorical distinction between rights as the subject matter of supranational human rights review and institutions or procedures as the subject matter of constitutional review. In the subsections ‘Constitutive principles’ and ‘Institutional principles’, I critically reconstruct the Court’s relationship to democratic institutions and procedures within its ‘democratic society’, focusing on the distinction between ‘substantive’ and ‘procedural’ obligations’. The latter precisely reflects the concern for maintaining channels of accountability within and between core institutions, also illustrating the concern for kinds of abuse distinctive of authoritarian populism. I survey the Court’s review of freedom of expression (Article 10), the right to a fair trial (Article 6) and the right to free elections (Article 3 Protocol 1) and discuss the limits of the Court’s review in these domains, gauging the analogy between the Neo-Elyan project and mine. I argue that the ECtHR offers a distinct variation of the project funneled through the catalogue of the Convention rights.
‘Political process theory’: the basics
In his recent project of a revived ‘political process theory’, and in reference to the Ely’s limited review of processes and his quasi-exclusive focus on electoral matters, Gardbaum is keen to identify a much wider set of procedures and institutions that make up a constitutional, and specifically representative, democracy, the erosion of which could justify a correspondingly expanded judicial review. This proposed expansion is also found in a wide groups of recent contributions – most notably, Dixon and Landau the value-based framework of ‘responsive judicial review’, which identifies the risks of ‘antidemocratic monopoly’, ‘democratic blind spots’, and ‘burdens of inertia’ as the grounds for stronger scrutiny by constitutional courts (Dixon and Landau Reference Dixon and Hailbronner2021; Dixon Reference Dixon2023), which use the modified label of ‘comparative representation reinforcing theory’ (CRRT), which in their view allows for a wider and flexible – both substantive and procedural – array of judicial responses (Dixon Reference Dixon2025: 208). The overlap between these various strands is that there is neither an a priori or a definitive list of such processes and institutions that should fall within the scope of judicial review. This is not because the specific forms of constitutional democracy evidently vary but also because the ways in which a constitutional democracy may be subverted from within surely is first and foremost an empirical matter – in the case of Gardbaum, his case studies of Hungary, Poland, South Africa, India, the UK and Israel (Gardbaum Reference Gardbaum2020, Reference Gardbaum2024). In other words, while Ely’s concern for procedures was internal the US constitution context and established approaches to interpretation, Gardbaum and others aim at addressing the abuses of authoritarian populism – ‘in the current period of widespread democratic backsliding, it appears as a more pressing priority that the conventional focus on protecting individual rights’ (Gardbaum Reference Gardbaum2024: 2).
In what follows, I focus on Gardbaum’s account to highlight how process theory is normatively and conceptually tied to constitutional democracy, which then raises the challenge of transposing it to the supranational, human rights-specific level. To delineate the relevant set of procedures and institutions, Gardbaum articulates a normative and reasonably idealized account of the core institutions of a constitutional democracy – one with sufficient practical insight to derive standards that courts could employ and with which they could justify their intervention. In his own words, Gardbaum aims at a theory ‘specifically geared towards this key function of constituting and maintaining a system of representative democracy, and the range of ways that courts can help to protect its structures and processes against the array of challenges. This normative theory seeks both to justify this type of judicial review and to provide a standard for when and how courts should intervene’ (Gardbaum Reference Gardbaum2020: 1431), which also was the theory’s ambition in Ely’s case.
Democracy is defined by Gardbaum as ‘an umbrella term or thin concept that denotes collective self-rule or self-government by the citizens of a political community and can take a wide variety of more particular forms’ (Gardbaum Reference Gardbaum2024: 4). Importantly, constitutional democracy is informed by a distinct set of institutional and procedural values (esp., reflection, collaboration, pluralism, mediation and non-arbitrariness) that justify the sharing of political authority through the generic separation of powers while instituting channels of accountability between them. For example, while the executive implements a political agenda, the legislature reviews and amends it through various rounds of proceduralized deliberation. In doing so, the legislature oversees and holds the executive to account, while holding itself accountable to the citizenry through electoral processes. Hence, while each body or institution strives to uphold these values in their respective role, each holds the other to account using them. As Gardbaum argues:
in a constitutional democracy, collective self-government involves the sharing of legitimate authority among a plurality of governance institutions, of which representative ones exercising primary political power are chosen by, and accountable to, the citizenry via elections and other, more continuous mechanisms. This institutional pluralism creates a form of separation of powers requiring ongoing cooperation and collaboration. (ibid, 5)
In Gardbaum’s view, this ‘shared authority’ model stands in sharp contrast with more concentrated or ‘monistic’ accounts of political authority across a spectrum ranging from a constitutional monarchy to semi-direct democracy.
What are concrete examples of process failure under this conceptual and normative framework? Following Ely, Gardbaum’s account of judicial review extends not only to the electoral system but to all the procedures of accountability between and within the three branches, whether the specific roles reviewed are elected or not. By way of illustration, courts could review parliamentary proceedings when a majority actively helps the executive avoid facing charges of corruption, and more broadly should be vigilant in reviewing the expedited passing of legislation without proper scrutiny and deliberation – for example, the abuse of the impeachment process by the National Assembly in South Africa to effectively grant impunity to President Zuma or Boris Johnson’s prorogation of the British Parliament in 2019 that prevented scrutinizing the Brexit ‘deal’ (Ibid., 8). Courts could also scrutinize records of when the government ignores decisions from independent institutions within the executive (e.g., the government anti-corruption office). They could similarly review the multifaceted abuses of judicial independence, such as the self-interested remodeling of appointment rules for judges, or wider structural changes such as the revamping of judicial councils. These are all instances of façade democracy: while the separation of powers remains formally intact, in effect they witness the self-interested concentration of political authority, most frequently in the form of executive aggrandizement.
It is this balanced institutional architecture informed by these archetypes of abuse that is the subject of Gardbaum’s Neo-Elyan account. The role of courts is not just to adjudicate cases in a standard separation of powers model, involving ‘reflective judgment and (in the case of multimember courts) internal deliberation, producing reasoned opinions, promoting non-arbitrariness in government and the rule of law’ (ibid., 6). While it remains subsidiary, the legitimate authority of courts also extends to any instance of internal abuse orchestrated by incumbents when the abuse of process is systemic rather than isolated. As Gardbaum notes, ‘the key function of the courts is to identify or anticipate serious abuse or systematic undermining of the political processes and structures that constitute a country’s system of constitutional democracy’ (ibid., 7). In more precisely characterizing the type of review appropriate to this expanded role, Gardbaum identifies a ‘semi-constitutive’ type that is distinct from the Elyan original of reviewing legislative outputs only. The distinction lies in the fact that although a court is reviewing legislative outputs, ‘it is not reviewing for their substance, or to protect a constitutive right or value in the sense of identifying specific acts that cannot be done regardless of their procedure but is rather reviewing its effects on the particular structure and processes of democracy’ (ibid., 9). Courts would therefore engage in forecasting and identifying the effects of legislation on the broader framework of constitutional democracy.
Political process theory in Strasbourg
Preliminaries
In this section, I critically engage with Gardbaum’s and similar accounts by testing the main features of the ‘political process theory’ in the context of the ECtHR. As we shall see, this context is prima facie different in that it is not the model of constitutional democracy (descriptively or normatively defined) but an international convention limited to the subject matter of human rights, in particular civil and political. Equally, the ECtHR is routinely understood as having a constitutional function.Footnote 3 The field of comparative constitutional law, however, has not yet systematized the role of the ECtHR in countering systemic abuse, albeit with a couple of notable exceptions. For example, Zysset has probed whether the Court’s ‘democratic society’ cutting across the case law is still apt to detect the more insidious and infrastructural attacks on the democratic process (Zysset Reference Zysset2022, Reference Zysset2026). Hailbronner’s and Kujus’ recent article illustrates Ely’s account of representation reinforcement in the Court’s jurisprudence with reference to Article 18 ECHR, which protects against the abuse of the rights’ restriction and targets the ‘bad faith’ of governments in justifying their interferences with the Convention.Footnote 4 They show how this article has been employed by the Court to identify government-targeted political opponents under the cover of criminal prosecution, illustrating how the Court may protect processes of democratic representation (Hailbronner and Kujus Reference Hailbronner and Kujus2025) as well as highlighting the link between democracy and the rule of law to that effect. This article systematizes the Court’s account of democracy across a wider array of Convention rights, inquiring whether the concern for the integrity of procedures and institutions can take the route of rights. I concentrate on the procedures and institutions envisaged as parts and parcels of the core democratic provisions of the Convention and reflected in patterns of reasoning developed by the Court in recent years.
The fact that human rights courts have a specific subject matter, namely the protection of the Convention catalogue of rights, and are bound by the principle of subsidiarity,Footnote 5 by itself does not mean that the effects of institutions and processes examined by Gardbaum are – or should be – immune to the Court’s review, as we shall see. In fact, the opposite is the case. By analogy with Gardbaum’s ‘semi-constitutive’ review – a review concerned with the systemic effects of law on processes and institutions – the Court can be seen as tracking the effects of domestic law on the exercise of protecting rights. The Court rarely challenges the legality and legitimacy of the right(s)-interfering norm in abstracto – its review almost always takes place in concrete and individualized circumstances of an alleged violation. Second, rights are primarily defined through their normative function within the democratic system (directly echoing Ely’s focus on the premises of the US representative democracy) – a point that emerges most clearly when the Court weighs rights against public interests in proportionality analysis. Therefore, even if the Court adjudicates disputes about rights, this adjudication nowadays has a lot to do with the place of the right in the Court’s ‘democratic society’, I argue. In this connection, the same generic question posed by Gardbaum and others about (extending) the scope of the Court’s review to a wider set of procedures and institutions in response to democratic degradation can be posed in the Court’s context. My aim in the next sections of the paper therefore is to identify the analogous role of the Court as protecting against systemic threats to democracy and the rule of law orchestrated through institutional and democratic channels, but via Convention rights.
Having said that, there remain two basic caveats to this transposition project that from the onset limit the degree of analogy but not its viability. The first is that the Strasbourg Court’s formal role remains categorically distinct from the apex courts contemplated in Gardbaum’s account of a constitutional democracy (and in the wider literature in comparative constitutional law). The Court is a regional court instituted by a regional treaty, the Convention, and constitutes the judicial arm of an international organization, the Council of Europe (hereafter, ‘the CoE’). Its formal authority is one of having the ultimate say over the interpretation of the Convention (Article 32 ECHR), and its final judgments are binding on the parties (Article 46[1] ECHR). This allows for drawing a sharp contrast not just with Ely’s and Gardbaum’s account but also with CCRT’s assumption of courts having ‘broad remedial powers’ (Dixon Reference Dixon2025: 209) – in fact, in comparison to other courts such as the Inter-American Court of Human Rights, the ECtHR exercises very limited remedial powers.
While one may want to identify the Court, the Parliamentary Assembly and the Committee of Ministers of the CoE as establishing a shared and balanced framework of international authority, it remains that the overarching framework retains an international rather than constitutional or democratic structure. Most recently, this was seen in the Court’s decision that the contested presidential elections in Romania were outside the Court’s jurisdiction rationae materiae (Călin Georgescu v. Romania, App. No. 37327/24, 11 February 2025), which remain the preserve of national institutions.
Methodologically, therefore, the overarching model of constitutional democracy – the collective self-government through shared authority and channels of accountability – cannot serve as the framework of reference either descriptively or normatively. Descriptively, scholars have frequently argued that the Court can be viewed as the constitutional court of Europe on other grounds (Greer and Widlhaber Reference Greer and Wildhaber2012; Ulfstein Reference Ulfstein2021) – for example, by considering the authority of its judgments (e.g., erga omnes effect, res interpretata) or the pilot judgment procedure, which allows the Court to tackle repetitive cases and reduce its chronic backlog by specifying remedial action, which was seen as the Court dispensing ‘constitutional justice’ (Kurban Reference Kurban2016). 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 and that it has the legitimacy for exercising constitutional review. While scholars have pointed to the relevance of the Convention to the relationship between constitutional organs of the state (Leloup Reference Leloup2020), this relationship derives from specific Convention articles – such as Article 6 ECHR or Article 3 Protocol 1 ECHR, as we shall see in the next section of the paper – rather than from a normatively loaded and overarching account of constitutionalism. This invites us to examine whether the Court’s review can align with Gardbaum’s concern for systemic threats without the conceptual background of a constitutional democracy. The same can be said for other accounts in the literature such as Dixon and Landau that proceed with an idealized ‘minimum core set of institutions and norms necessary for a functioning constitutional democracy’ (Dixon Reference Dixon2025: 211) rather than rights specifically. But in the ECtHR’s context, the Court’s authority is (only) to interpret rights in the individualized circumstances of their alleged violations. It is not to adjudicate over and above the other branches of a single government in general, but to operate an external review of the rights that may be impacted by the operation of that government in a subsidiary role.
Second, and relatedly, Gardbaum’s analysis acknowledges the overlap between rights and processes or institutions. He writes that ‘at a minimum, the existence and exercise of certain rights are essential for democracy, as part of its basic structure, such as the general right of citizens to vote in modern representative democracies and freedom of expression and assembly’ (Gardbaum Reference Gardbaum2024: 18–19). But the ‘political process theory’ owed to Ely is first and foremost presented as an alternative framework for widening the scope of judicial review in response to threats – an alternative to the contentious avenue of rights adjudication in the constitutional realm. Again, both Ely and Gardbaum incorporate minimal rights in their account, but the normative source for (determining the scope of) interpretation is the kind of democracy contemplated (‘representative’ for Ely and ‘constitutional’ for Gardbaum) as the backbone over which judges adjudicate. It remains the case that the context of the ECtHR is distinct from the Gardbaumian model – and it is also distinct from the much wider premise in Dixon and Landau’s account of ‘democratic blind spots’ and ‘burdens of inertia’ as ‘they involve ways in which laws limit the enjoyment of rights supported by democratic majorities’ (Dixon Reference Dixon2025: 211). The catalogue of rights is not limited to a rights-specific international convention but to virtually any abuse of minorities by majorities, and more.
Again, the ECtHR is only tasked to address violations of the Convention rights by interpreting them and declaring (non-)violations. It also remains the case that the effectiveness of the Court’s response to democratic backsliding, through the implementation of judgments, depends on the will of states, and they benefit from ‘remedial subsidiarity’ (Besson Reference Besson2016) in autonomously choosing how to remedy a violation. This changes the conceptual and normative architecture considerably: on first inspection, a supranational human rights court whose chief mandate is to authoritatively interpret a limited list of rights seems to conflict with the basic impetus of the ‘political process theory’ project and ambit.
Constitutive principles
In what follows, I aim to challenge the distinction between rights and processes or institutions for the sake of addressing the same concern animating the ‘political process theory’, namely the protection against internal and systemic threats to democracy. Taking the Court as an example, I argue that the same concern has been filtered through the register of the Convention rights. Examining what about the nature of rights forming the focus of the Court’s adjudication makes it clear that there is continuity in addressing the concern for the integrity of institutions and processes in general and for the integrity of the democratic process in particular. In so doing, I aim to show that the ‘political process theory’, as a matter of conceptual construction, is ultimately less about institutions and processes per se, but about their underlying values. And that there is enough, so to speak, in our understanding of rights that can encompass the chief concern for the integrity of processes and institutions and their novel forms of abuse.
Raising the challenge just outlined poses a methodological difficulty: how do we go about the ‘political process theory’ of and for the Court without postulating a prior conceptual and normative framework of ‘constitutional democracy’? In its case law, the Court sometimes refers to democracy as ‘the only model compatible with the Convention’ or that the Convention is ‘the European constitutional order’ (Ireland v. United Kingdom, App. No. 5310/71, 18 January 1978, para. 239; see Dzehtsiarou Reference Dzehtsiarou2021). But while democracy seems to operate a genuinely normative and rights- and obligation-generating role in the Court’s jurisprudence, as I purport to show, the same cannot be said of the ‘European constitutional order’ – the Court hardly invoked this notion in the decisive portion of its decisions, in particular in its review of processes and institutions. I am here rather interested in whether the Court protects the integrity of democratic institutions and processes via the medium of rights, its core subject matter, and how far the protection against democratic backsliding can be achieved by relying solely on rights and their understanding by the Court.
One approach, which I label ‘constitutive’, consists in searching for the most basic principle(s) of democracy that the Court employs to delineate Convention provisions (their nature, role, content, and scope) and identify their procedural pedigree. Central to this approach is the premise that the Court understands Convention rights not as self-contained moral rights but as (contributing to) realizing the Court’s overarching ‘democratic society’. This particularly concerns the ‘democratic’ provisions of the Convention such as freedom of expression (Article 10), freedom of assembly and association (Article 11), the right to a fair trial (Article 6), and the right to free elections (Article 3 Protocol 1). These rights form a special bond in the Court’s case law – it often describes them as the ‘bedrocks of any democratic system’ (Bowman v. United Kingdom, App. No. 24839/94, 19 February 1998, paras. 18 and 22). For example, the Court’s mantra of ‘pluralism’ – that there is no ‘“democratic society” and democratic debate, without “pluralism, tolerance and broadmindedness”’ – form the cornerstone of its approach to democracy under Article 10. Since the seminal Handyside case (Handyside v. United Kingdom, App. No. 5493/72, 7 December 1976, para 50), the Court has delimited the scope of expression accordingly, asserting that freedom of expression applies ‘not only to “information” or “ideas” that are favorably 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’ (Ibid., para. 51).
These principles not only delineate the content and scope of Articles 10 or 11 in the Court’s catalogue of principles of interpretation in abstracto – they also have a practical reach in the resolution of cases in concreto, most prominently in proportionality analysis. The normative point of freedom of expression is therefore democratic in a procedural way, quite distanced from a comprehensive liberal account that would privilege, say, individual autonomy.
Take the case of extremist political views such as the defense of Sharia law in various landmark cases against Turkey. The decisive portion of these cases directly depends on the normative weight assigned to pluralism in the public arena:
[T]he applicant’s extremist views were already known and had been discussed in the public arena and, in particular, were counterbalanced by the intervention of the other participants in the programme; and lastly, they were expressed in the course of a pluralistic debate in which the applicant was actively taking part. Accordingly, the Court considers that in the instant case the need for the restriction at issue has not been established convincingly. (Gündüz v. Turkey, App. No. 35071/97, 4 December 2003, para 51)
A constitutive approach, therefore, involves first identifying these principles that are not derivative of something else as a matter of normative (democratic) justification – they are, in other words, constitutive principles. Second, the constitutive approach assumes that these principles, given their normative thickness, form the basis from which correlative duties and obligations derive in the Court’s reasoning. For example, the Court has derived a ‘right to reply’ from its insistence on democratic debate – typically, when the exercise of expression both contributes to public debate (‘the speaker’) but also encroaches on the rights of others (‘the listener(s)’), of which the right to privacy (Article 8) is an example. In another seminal case, Melchynuk v. Ukraine, which concerned the critique of the books of a recognized Ukrainian author, the then-Commission held that:
the Court considers that the right of reply, as an important element of freedom of expression, falls within the scope of Article 10 of the Convention. This flows from the need not only to be able to contest untruthful information, but also to ensure a plurality of opinions, especially in matters of general interest such as literary and political debate. (Melchynuk v. Ukraine, App. No. 28743/03, 5 July 2005, p. 2)
However, while rights are here constitutive of a ‘democratic society’ in a procedural sense, the constitutive approach is chiefly concerned with the protection of democratic debate – the initial, deliberative stage of the democratic process. From this perspective, while it is in a sense procedural in regulating the initial stages of democratic debate, it has limited institutional reach. True, the Court has identified key protectors of its ‘democratic society’ under Articles 10–11: the ‘watchdogs of a democratic society’ in civil society (journalists and the media, NGOs, scientists and intellectuals, etc.). But these are not constitutive of the institutions of the state – they are independent actors concerned with counteracting the power of the state. Let us recall that the core concern of the ‘political process theory’ is the democratic backsliding of an institutional kind by the incumbents themselves, or non-elected power holders.
To grasp how this concern specifically features in the Court’s case law, one can turn to the right to a fair trial (Article 6). To recall, one of the core terrains of Gardbaum’s expanded judicial review is precisely the judicial branch, namely protecting the basic function of independently interpreting, applying and enforcing the law in the model of shared authority of a constitutional democracy. Can this independence be protected through rights? While there is no right to judicial independence under the Convention, the Court had to dwell on it in examining a series of cases pertaining to the Disciplinary Chamber of the Supreme Court that the Polish government installed as a result of the now well-known Amending Act (2017). This act granted the Polish parliament (Sjem) the competence to elect members of the new National Council of the Judiciary (NCJ). In the case of Reczkowicz v. Poland (Reczkowicz v. Poland, App. No. 43447/19, 22 November 2021), for example, the applicant complained that her case was not examined by a ‘tribunal established by law’ under Article 6 with its guarantees of independence and impartiality precisely because the NJC effectively controlled the functioning of the Disciplinary Chamber of the Supreme Court (since the NCJ recommends applicants to that chamber to the President of Poland).
In this case, one can discern the Court’s expanded review in responding to the Polish government’s arguments. The government defended its compliance with Article 6 by exploiting the space left to state parties by subsidiarity. It argued that the Convention does not prescribe a specific system of elections for judges and invoked the margin of appreciation in that regard:
the Convention did not imply an obligation to apply a specific mode of appointment of judges to the highest courts of the Contracting States. The Convention did not require the appointment of judicial councils or their participation in the procedure for appointment of judges. Moreover, the Convention did not require the States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interactions. (ibid., para. 196)
The government also reminded the Court of its subsidiary role as a supranational judicial body – in particular, the remedial form of subsidiarity: ‘the Court was limited by the principle of subsidiarity, which allowed the High Contracting States to decide which measures to take to ensure the rights and freedoms of individuals and to implement the Convention guarantees’ (ibid., para. 199). The reference to democracy is also visible in the government defending the mode of nominating new members of the NCJ – ‘the new system allowing the candidates to be presented by a group of citizens or other judges ensured greater representativeness of the NCJ’ (ibid., para. 200).
Furthermore, with respect to the specific requirement under Article 6 that a tribunal be ‘established by law’, the government claimed that ‘the constitution did not determine, however, who would elect these judges or how they would be elected’ (ibid. para. 199). This is directly an application of the ‘Ástráðsson test’ established by the Court according to which a tribunal fails to be established by law when there is a manifest breach of domestic law. In Vilho Eskelinen (Vilho Eskelinen and Others v. Finland, App. No. 63235/00, 19 April 2007), the Court held that state parties could exclude access to a court when domestic law expressly does so, or when such exclusion is justified on objective grounds in the state’s interest. Why do these conditions matter? Well, unsurprisingly, these conditions have subsidiarity at their core, as the Court holds:
it is primarily for the Contracting States, in particular the competent national legislature, not the Court, to identify expressly those areas of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way. The Court exerts its supervisory role subject to the principle of subsidiarity (…). (Reczkowicz v. Poland, ibid., paras. 61–62)
The Polish government, in invoking its constitutional provisions (the lack thereof) to justify its judicial reform, relied on an established standard of the Court.
In response to these arguments, the Court had to go beyond its test established in Vilho Eskelinen and appealed to a constitutive principle by examining whether the 2017 Amending Act, which regulates both the NCJ and the Disciplinary Chamber, includes sufficient guarantees of independence and impartiality. Indeed, taking a constitutive approach,
the Court has been unable to detect any attempt on the part of the Constitutional Court to explain its judgment why and how the new election model would better serve the interest of the judiciary and equal opportunities or whether, and if so how, it would impact upon the NCJ’s primary constitutional obligation of safeguarding the independence of courts and judges (…). (ibid., para. 239)
The Court asserted that the 2017 Amending Act ‘practically removed not only the previous representative system but also the safeguards of the judiciary in that regard. This, in effect, enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure (…)’ (ibid., para. 274). It is therefore this detour through the constitutive principles of independence and impartiality that allowed the Court to conclude that there was a manifest breach of domestic law as part of the Ástráðsson test – and to find a violation of Article 6.
Yet, such expanded review by no means includes all the democratic provisions of the Convention. For example, the right to free elections (Article 3 Protocol 1), which is clearly defined in institutional, rather than procedural, terms: ‘“free” elections at “reasonable intervals” “by secret ballot” and “under conditions which will ensure the free expression of the opinion of the people’ (Labita v. Italy, App. No. 26772/95, 6 April 2000, para. 201). Contrary to the other rights of the Convention, the right to free elections has a positive – and therefore institutional – dimension at the core of its text. In the Court’s view, this article is defined as the correlative to the other quintessentially democratic rights of the Convention, namely Articles 10–11. The correlative is intuitively clear: while Articles 10 and 11 protect the conditions of the democratic debate prior to the elections, P1–3 protects the conditions for all subjects to have an equal say in the choice of representatives (the right to vote or ‘active’ dimension of the right) and an equal opportunity to run for office (the right to stand for elections or ‘passive’ dimension of the right). In its very first case of P1–3, the Court stated that:
Fundamental human rights and freedoms are best maintained by an “effective political democracy”. Since it enshrines a characteristic principle of democracy, Article 3 of Protocol. No. 1 (P1-3) is accordingly of prime importance in the Convention system. (Mathieu-Mohin and Clerfayt v. Belgium, App. No. 9267/87, 2 March 1987, para. 47)
However, the constitutive approach rapidly encounters some limits in tracking the Court’s reach when it adopts a cautious approach in scrutinizing the restrictions adduced to the right to free elections. While emphasizing the ‘conditions which will ensure the free expression of the opinion of the people’, in practice the Court’s scrutiny focuses on alleged violations of the basic conditions of the electoral process. In the context of the right to stand for elections, this would typically amount to a government arbitrarily disqualifying an individual from standing, as it was the case in Ždanoka v. Latvia (Ždanoka v. Latvia, App. No. 58278/00, 16 March 2006, para. 115). The refusal by the national authority to register the applicant as a candidate forms the object of scrutiny. And the ‘cautious’ assessment of the Court even increases as far as the right to vote is concerned, as in Yumak and Sadak v. Turkey:
The Court recalls that this case is primarily about the applicants’ participation in the elections as candidates, i.e. about the passive electoral right. In the context of the “passive” aspect of the rights guaranteed by Article 3 of Protocol No. 1, the Court has stressed that it would be “even more cautious in its assessment of restrictions in that context than when it has been called upon to examine restrictions on the right to vote, that is, the so-called “active” element of the rights under Article 3 of Protocol No. 1. (see Yumak and Sadak. Turkey, App. No. 10226/03, 8 July 2008, para. 109)
The Court has indeed more generally acknowledged that state parties benefit from a ‘margin of appreciation’ in assessing restrictions of the right to free elections, which limits the Court’s review of the institutions prone to abuse, such as electoral commissions. This means, as far as the Court’s review is concerned, the Court does not examine the proportionality of the interference in its own terms and places the burden of proof onto the applicant. The constitutive element is therefore much thinner under this provision and watered down to gross violations of the right such as arbitrary disenfranchisement. The case of The Georgian Labour Party v. Georgia, for example, in which the applicant party complained about the role of the president of Georgia’s power to appoint seven of the fifteen members of the electoral commission (including the president). The Court acknowledged that:
the contested composition of electoral commissions at all levels indeed lacked sufficient checks and balances against the President’s power and that those commissions could hardly enjoy independence from the outside political pressure. However, in the absence of any proof of particular acts of abuse of power or electoral fraud committed within the electoral commissions to the applicant party’s detriment, no breach of the latter’s right to stand for election can be established (The Georgian Labour Party v. Georgia, App. No. 9103/04, 8 October 2008, para. 51)
This survey of the case law allows for an intermediate conclusion, which is twofold. On the one hand, it seems that the rights just reviewed are defined in primarily procedural terms and do have some institutional implications. The Court is therefore protecting democracy in a systemic fashion based on deliberative, representative and rule of law principles (Zysset Reference Zysset2016; O’Connell Reference O’Connell2020). In doing so, there is some analogy with Gardbaum’s concern with the ‘effect of a law or other government act on the institutional structure or key processes of constitutional democracy’ (Gardbaum Reference Gardbaum2024: 8) and with Ely’s core argument that except that these effects on institutional structures, and their assessment, are funneled through rights.
On the other hand, the Court has a record of cautiously examining – if at all – the restrictions imposed by governments on the right to free elections, holding that national authorities are ‘better placed’ (epistemically) and benefit from ‘democratic legitimation’ (normatively) to assess their compliance with the Convention. To that extent, constitutive principles are in practice superseded by institutional considerations that limit the ambit of the political process theory in Strasbourg. To recall, while Gardbaum does not directly address the issue of rights, his account operates on the basis that (constitutional) judicial review is not limited in its scope of scrutiny when it comes to the institutions and processes of democracy, despite both (human rights and constitutional) forms of review being subsidiary to the primary channels of (constitutional or human rights) accountability. In conclusion, while the concern for institutional integrity can take the route of rights, this route is limited by the Court’s subsidiary position – and that can of course be questioned by Gardbaum’s longer reach, albeit without positing ‘constitutional democracy’ as the overarching normative framework.
Institutional principles
Two implications follow from our first assessment of the Court’s case law: first, a satisfactory approach ought to explain why the Court’s review is limited in the ways outlined above. I propose to view the Court’s ‘constitutive’ principles of democracy as qualified by ‘institutional’ principles grounded in subsidiarity considerations. While these principles are not necessarily apparent in the case law, they function to delimit the content and scope of the constitutive principles. This explains (but not justifies) why the Court, unlike in the Gardbaumian model, does not scrutinize, say, the composition of an electoral commission or an oversight media body in any depth, generating what one may call a ‘normative gap’. A normative gap occurs when a constitutive principle derives only some implications for systematically reviewing some institutions and procedures prone to abuse, but not others. This allows for pinpointing what about supranational, human rights-specific review is descriptively different from the constitutional context when it comes to scoping the protection of right-based democracy and the rule of law – and the Court will often, if not always, justify this scope in terms of subsidiarity. The Court’s ‘margin of appreciation’ and its close connection to a European consensus-searching rather than principled approach is one primary manifestation of these gaps, and they are also manifestations of subsidiarity. Subsidiarity, however, offers only a general normative framework for limiting the Court’s purview. It cannot by itself explain why, specifically, some institutions and processes – even when they are distinctively raised by the applicant(s)’ alleged violations, as we shall see – fall outside the Court’s purview. Returning to the case law, I suggest that the Court’s institutional minimalism rather speaks to the existential kind of threat(s) to the democratic process that the Court has been initially concerned with (Zysset Reference Zysset2026). This would explain when and why the Court switches from constitutive to contingent forms of reasoning.
The second and contrasting implication is that while the Court’s scope of review is limited by institutional principles, this does not entail that, within these limits, the Court is not animated by the core (Neo-)Elyan concern of protecting procedures from internal abuse. I believe that one should take another look at the Court’s record by identifying the ‘procedural’ or ‘institutional safeguards’ attached to Convention rights that have gained increased prominence in recent years in the case law. This will add further flesh and nuances to the project of analogy. Overall, this supports my overall argument that institutions and procedures can find a place within a right-based review.
Subsidiarity all the way down, really?
It is certainly valid to generally explain that the Court’s self-limitation in assessing institutional structures and processes of the respondent state party reflects the Court’s subsidiary jurisdiction (its interpretive dimension) outlined in the first section of the paper. But subsidiarity is a modular concept – it only posits a ‘rebuttable presumption for the local’ (Føllesdal Reference Føllesdal1998) in the Court’s case law without identifying the conditions under which the presumption should be rebutted. Yet, the Court is also committed to protecting the rights-based conditions of the democratic process for which subsidiarity is of limited explanatory and normative value. What therefore explains this gap between deference through subsidiarity and the effective protection of democratic rights? I argue that that the Court’s reliance on institutional and subsidiarity considerations in fact correlates with the limited kind of threats to democracy that the Court has contemplated since its inception. That is, the Court has by far focused on threat(s) that undermine the very necessary conditions of the democratic process – these conditions without which its ‘democratic society’ is virtually unrecognizable. Under the right to free elections (P1–3), for example, the Court’s engagement with electoral integrity focuses almost exclusively on issues of arbitrary disenfranchisement but does not extend its scrutiny to the functioning of an electoral commission and the associated risk of abuse in any depth. The Court is not explicit or specific about why it does not investigate, say, whether an electoral commission is truly representative of the political spectrum and limits itself to checking that there is some representation.
Indeed, one is often struck by how the Court suggests that it pays due regard to the margin of appreciation attached to a provision to conclude that the domestic court’s decision was within the margin – as if the Court knew, a priori, what margin there was in specific circumstances. I take institutional principles as being the most implicit in that context as they trump the normative force of constitutive principles. Still, one only needs a quick review of the case law to see how selective and inconsequential the Court’s record is. Take the example of how political participation takes shape in the case law and how deliberation and representation are defined. At the level of democratic deliberation, we saw earlier that, under Articles 10–11, the Court cannot insist more on the right to take part in public debate whenever a public interest is found – and, as a result, it will spill much ink on evaluating whether such interest exists. In this sense, the Court polices the entry and exit points of political deliberation as the cornerstones of its ‘democratic society’.
Yet, the Court’s principled approach to democratic (-deliberative) infrastructure is distinctively poor (Zysset Reference Zysset2022, Reference Zysset2026). For example, the ECtHR has not scrutinized in any depth the structures and oversight bodies of the media – and the risk of government-packing bodies – for which the Court only offers a very minimal review (Manole and Others v. Moldova, App. No. 13936/02, 17 September 2009, para. 106; NIT S.R.L. v. the Republic of Moldova, App. No. 28470/12, 5 April 2022, para. 184). In scrutinizing the institutions and processes of representative democracy, it conveniently retreats into deference whenever state parties invoke parliamentary autonomy (under P1–3), as we shall also see later, limits its proportionality analysis to the legality test (whether it was ‘prescribed by law’) and allocates a wider margin of appreciation (Scoppola v. Italy (No. 3), App. No. 126/05, 22 May 2022; Mironescu v. Romania, App. No. 17504/18, 30 November 2021, para. 52). Clearly, if one were to systematize the Court’s minimalism in these areas, since its inception the Court has been concerned with the very necessary and existential conditions of the democratic process (e.g., the protection of pluralism and opposition in public debate in the context of Article 10), without paying systematic attention to the more insidious erosion of democratic infrastructure (e.g., the media system and its supervision). This minimalism is inscribed into the historical mission of the Court too – think of the notion of ‘alarm bell’, for example (Bates Reference Bates, Christoffersen and Madsen2011). In that sense, one needs an explanatory framework to understand how, in its reasoning, the Court posits constitutive principles – containing a thick normative content – without deriving the consequences that they could, generating normative gaps.
Why is that so? That is where shifting from constitutive to institutional principles is helpful but also intriguing: institutional principles refer to the Court’s self-perception driven by subsidiarity. In my view, however, the reason why these rights and obligations are irremediably minimal and static has to do with the kind(s) of threats to democracy that the Court takes as its primary concern. From this internal perspective, it seems warranted that the Court’s approach to democracy is dynamic through references to ‘pluralism’ or ‘broadmindedness’, but actually minimalist (some would say ‘conservative’ (Duranti Reference Duranti2017) in delimiting the rights’ scope. Such an approach echoes the widely accepted narrative of the Court’s self-assigned role of preventing the return of totalitarianism through basic constitutive principles. One could think of the Court’s case law on banning political parties and the emphasis on the existence, or likelihood, of (incitement to) violence – as in the notorious Refah Partisi case, another test case about the limits of democracy, in particular the dissolution of political parties, where the Court found that it
accordingly considers that at the time of its dissolution Refah had the real potential to seize political power without being restricted by the compromises inherent in a coalition. If Refah had proposed a programme contrary to democratic principles, its monopoly of political power would have enabled it to establish the model of society envisaged in that programme. (Refah Partisi and Others (The Welfare Party) v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98, 41344/98, 13 February 2003, para. 108)
Policing the existential boundaries of democracy – that is, when and why a regime starts and ceases to be democratic – constitutes the relationship between the Court and national democracy.
This self-perceived minimalist role naturally raises the issue of its fitness to address how threats to democracy have mutated in recent years. In other words, is the existential threat – again, a threat that puts the very necessary conditions of the democratic process at risk – the only threat to democracy that has more recently developed in CoE states? There is now abundant evidence that the threat has become much more insidious, which signals a shift to an internal and insidious threat, which preserves the façade of the integrity of democracy but subverts its values and operation, which is what Gardbaum’s project focuses on. In other words, focusing on existential threats may render the Court blind to what has been called a ‘distortion of democracy’ occurring within key democratic infrastructure (media, election, judiciary; see Zysset Reference Zysset2022, Reference Zysset2026). This poses a fundamental challenge to the Court’s limited and static approach.
Institutions and processes within the rights’ scope
It would be unfair to the Court to claim, however, that it has not started addressing this internal and insidious threat. The Court has indeed championed ‘procedural safeguards’ in recent years – or, as it sometimes calls it, the ‘procedural arm’ of this or that Convention provision. What is more, the Court even substitutes the constitutive arm with the procedural one in terms of its review focus. This development can be illustrated through a close examination of the case of Karácsony and Others v. Hungary. The case involved the fines – what the Court terms ‘ex post facto disciplinary sanctions’ – imposed on opposition members in the Hungarian parliament who had used a placard, banners and megaphone on the floor of the parliament to express their fierce objection to the government’s policies on tobacco trading. The applicants claimed a violation of Article 10.
The parliamentary context is a particularly fertile terrain for examining the Court’s record of protecting institutions of democracy against internal abuse. On the one hand, it is of prime importance that deliberative pluralism applies to this terrain, in particular the core proposition that Article 10 applies also to ideas and forms of expression that ‘shock and offend’, as we saw earlier. On the other hand, the Court’s potential interference with parliamentary affairs – a supranational and judicial interference – engages the issue of respecting, and not protecting, what the Court defines as a ‘democratic society’. Parliamentary autonomy – and the parliament’s overarching right to define the limits of MPs’ immunity to sanctions and fines – is therefore located at the other end of the Court’s democratic universe, one where deference to domestic authorities is the norm from which the Court can only carefully and exceptionally depart. The burden of justification falls on the Court, and this may partially explain why the case ultimately reached the Grand Chamber of the Court.
Now, one should keep in mind the specific adjudicatory context of the Court’s review, namely the proportionality test when the Court balances the interference (the aim and outcome pursued by the respondent state) against the right(s) claimed by the applicant. The procedural safeguards are standards that the Court reviews in examining the justifications offered by the respondent state party to restrict the right. In the case at hand, the Court focuses on the general and specific conditions for imposing sanctions on sitting MPs, starting with the gross form of abuse of Article 10, namely the use of disciplinary sanctions to silence the opposition:
Parliamentary autonomy should not be abused for the purpose of suppressing the freedom of expression of MPs, which lies at the heart of political debate in a democracy. It would be incompatible with the purpose and object of the Convention if the Contracting States, by adopting a particular system of parliamentary autonomy, were thereby absolved from their responsibility under the Convention in relation to the exercise of free speech in Parliament. (Karácsony and Others v. Hungary, Applications nos. 42461/13 and 44357/13, 17 May 2016, para. 51)
The Court in this case accepted that the government pursued a Convention-authorized ‘legitimate aim’ in restricting Article 10 (the second step of the proportionality test), namely the protection of the rights of others, which includes the rights of other MPs running a parliamentary session, as well as the prevention of disorder. Equally, the Court is ‘satisfied that the applicants did not receive sanctions for expressing their views on issues debated in Parliament, but rather for the time, place and manner in which they had done so’ (Ibid.), which concerns the substance of Article 10. Rather, it is the ulterior imposition of sanctions on MPs that is at stake here – and the conditions under which these sanctions were imposed and contested. In this case, the process consisted of a proposal written by the speaker of the house to impose fines and its subsequent adoption by the plenary without any debate. And that is the core issue of the case defined as engaging with the procedural limb of Article 10. Citing previous analogous cases, the Court established that the threshold for the procedure to count as Convention-compliant ought to be ‘right to be heard’ for the sanctioned or fined MP:
With regard to ex post facto disciplinary sanctions, the Court considers that the procedural safeguards available to this effect should include, as a minimum, the right for the MP concerned to be heard in a parliamentary procedure before a sanction is imposed. It notes that the right to be heard would indeed increasingly appear as a basic procedural rule in democratic States, above and beyond judicial procedures. (ibid., para. 52)
Now, this threshold of procedures – the absence thereof – is sufficient to establish a violation of Article 10. Indeed, in the present case the Court found that the procedural guarantees of Hungarian parliamentary law were insufficient: ‘they were limited to a general possibility of making a statement in Parliament or petitioning certain parliamentary bodies without any guarantee that the applicants’ arguments would be considered in the relevant disciplinary procedure’. In other words, the main concern of the Court is one of including fined or sanctioned individual(s) in the procedure via ‘the right to be heard’ (ibid.). The Court insists that ‘any ex post facto decision imposing a disciplinary sanction should state basic reasons, thus not only enabling the MP concerned to understand the justification for the measure but also permitting some form of public scrutiny of it’ (ibid., para. 53).
Conclusion
This article aimed at gauging the level of analogy between the Neo-Elyan project of an expanded judicial review against systematic threats to democracy, and the current record of the Court protecting core rights of the Convention. I hope to have shown that, as a matter of description, there is no categorical distinction between the review of processes and institutions characteristic of a constitutional democracy on the one hand and the adjudication of rights – even supranational – on the other hand. This concerns both the constitutive content of rights as individual entitlements as well as the ‘procedural safeguards’ independently attached to these rights. When the Court adjudicates the tension between parliamentary autonomy and the right to freedom of expression (itself defined in processual terms), it is protecting the shared framework of authority that Gardbaum’s Neo-Elyan project is concerned with. The motivation for this project is however also conceptual: to what extent are processes and institutions underpinned by rights that could be subject to judicial review? The picture emerging from our analysis is twofold: one is that rights can be ascribed systemic and procedural value that courts can review without postulating a more comprehensive account of these rights. The other is that the concern for institutional integrity and for the insidious threat raised by authoritarian populism specifically can be funneled through the medium of rights. It does not follow that there is co-extension between the institutions’ and the rights’ normative reach, but it ascertains that the distinction can be challenged in a granular manner. Also, it should be noted that the role of the other constitutive bodies of the Convention’s institutional framework, including the Committee of Ministers’ in supervising the implementation of the judgments, would deserve more attention than this article could achieve. The extent to which this executive body could complement its judicial counterpart in detecting and addressing systemic concerns could develop the inquiry in the distinct supranational context examined in this article.
Acknowledgements
I am very grateful to Cormac Mac Amhlaigh and Mikael Rask Madsen for inviting me to contribute to two research workshops in Edinburgh and Copenhagen (‘Taking Ambivalence Seriously’: The European Court of Human Rights and Democracy Promotion) where drafts of this article were presented. I benefited from highly pertinent feedback and discussion with Başak Çalı, Aileen Kavanagh, Michaela Hailbronner, Euan MacDonald, Rory O’Connell, Neil Walker, and two anonymous reviewers of the journal.
Competing interests
None.
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