Introduction
This article examines, from an empirical and doctrinal perspective, the role of NGOs in shaping the case law and institutional evolution of the European Court of Human Rights. It argues that NGO-driven litigation and advocacy have contributed to specific doctrinal developments and procedural innovations at the Court, thereby influencing its evolving role within the Convention system. More specifically, the article examines how the Strasbourg Court and its liberal constitutionalism model have been mutating under the repercussions of the increase in its judicial power and legal professional activism that typifies the present age.Footnote 1 The research identifies concrete mechanisms through which NGOs participate in shaping the Court’s jurisprudence and institutional practices, and documents their involvement in key developments such as the living instrument doctrine, pilot judgments, and the execution of judgments. These findings can be interpreted in light of the literature on ‘total constitutionalism’, which provides a broader framework in which to assess the expansion of judicial power and the role of civil society in rights adjudication.Footnote 2
Total constitutionalism can be described as a process driving the implementation of the rule of law and fundamental rights through judicial enforcement and civil society.Footnote 3 Under this emerging framework, civil society increasingly participates in constitutional activities, including judicial review, complaints and third-party interventions, and participation in the reforms of the European Court. Total constitutionalism is also characterised, in a broader sense, by a wider scope of jurisdiction and more discretion by judges, achieved through expansive interpretative approaches to rights adjudication which tend to privilege individualism in modern society.Footnote 4 We assume that these characteristics tend to mark the constitutional evolutions of the Strasbourg Court, in particular the rise of liberal individualism and broad interpretative methods, and the growing role played by NGOs as the main representatives of civil society.Footnote 5 Accordingly, this article argues that the constitutionalisation of the European Court of Human Rights is not solely the result of internal judicial dynamics but is also shaped by the sustained intervention of non-state actors, whose strategic litigation and advocacy practices influence both doctrinal developments and the institutional design of the Court.
In this regard, our article studies and measures both doctrinally and empirically two main features of total constitutionalism (the European Court as a total constitutional Court) as reflected in the influence of private interest groups (which are assumed to represent civil society) over jurisdictional expansion and interpretative advances realised by the Strasbourg Court through its jurisprudence. We combine for the first time these two characteristics to argue that NGO litigation and participation in institutional reforms reinforce the constitutionalising dynamics beyond solely internal judicial factors. The existing framework of supranational rights jurisprudence aligns quite well with the litigation agenda pursued by NGOs and private foundations, whose contribution to the constitutionalisation process and to make the Strasbourg Court a total constitutional court has been neglected by the literature, due to the limited intersection between scholarships on constitutionalisation and on NGO-driven litigation.
In this article we propose the term ‘liberal’ for NGOs as the historically more accurate identifier, and put forth a definition that combines five aspects: (1) the concentration of their advocacy and litigation on individuals and categories, especially minorities, seeking legal recognition of their unique characteristics;Footnote 6 (2) their orientation towards international organisations and cosmopolitan citizenshipFootnote 7 as opposed to the legal statuses derived from traditional nation-states in the locations where the NGOs operate;Footnote 8 (3) a tendency to reproduce globalisation;Footnote 9 (4) their close collaboration with non-state elites who provide funding,Footnote 10 a substantial portion of which comes from private philanthropic foundation grants;Footnote 11 (5) the primary origin of their resources being from foundations classified as ‘liberal’, as distinct from conservative ones.Footnote 12 Consequently, they defend an internationalist vision of law and promote universally understood human rights on a global scale and through a global lens.
Conversely, conservative groups can be defined by five distinctive characteristics: (1) they tend to label themselves as politically conservative;Footnote 13 (2) their approach has strong ideological roots in the natural law of Aquinas,Footnote 14 the primacy of the spiritual, and, broadly speaking, Christian belief;Footnote 15 (3) they have a tendency to attempt to defend nation-states against globalism and liberalism;Footnote 16 (4) they tend to criticise publicly liberal groups;Footnote 17 (5) they receive a relevant part of their funding from American Christian organisations and foundations, which are themselves largely funded by small donations from Christian individuals.Footnote 18
The article focuses on three dimensions of the Court’s constitutionalisation.Footnote 19 We show that while liberal NGOs have contributed to: (1) the development of the doctrine of the living instrument (which entails wide and expansive interpretation under the influence of liberal NGOs); (2) pilot judgments (which allow liberal NGOs to indirectly impact national legislations); and (3) the reform of judgments’ execution (in which liberal NGOs are increasingly involved), conservative NGOs denounce the process of constitutionalisation and its material and structural implications.
Rather than formally annulling domestic laws, the Court exercises an indirect but significant normative influence through its judgments and their execution. Our definition of the constitutionalisation of the Court does not rely on a formal equivalence with domestic constitutional courts, but on a functional approach. It refers to the Court’s capacity to shape general normative standards, influence domestic legal orders, and structure public authority beyond individual dispute resolution.Footnote 20 In this perspective, the empirical findings presented in this article can be read as cumulative indicators of such a functional constitutionalisation. This finding reflects the cases analysed in this study and does not exclude the influence of other actors or alternative litigation strategies.
In the first section, we present literature reviews of both the constitutionalisation of the Court and the strategic litigation carried out by NGOs, to demonstrate the literature gap created by the lack of intersection between these two literatures. In the second section, we detail the methods applied in our case study and identify the main liberal and conservative groups, filling the literature gap. In the third section, we scrutinise the living instrument doctrine as developed by the Court under the influence of liberal NGOs and in opposition to conservative NGOs. In the fourth section, we examine the pilot judgment procedure, which was developed and adopted on the recommendation of a liberal NGO and opposed by conservative NGOs. In the fifth and last section, we examine the participation of liberal NGOs in the committees overseeing the reform of the Court and in the execution of its judgments. In the conclusion, we expand on the interrelation between constitutionalisation and total constitutionalism.
Literature review
The European Court has not really been studied through the lens of total constitutionalism and the way in which NGOs contribute to its constitutionalisation. However, the Court has been undergoing some development, in particular influenced by the following five key elements: (1) the establishment of a permanent Court under Protocol 11, which came into force in 1998 and set up full jurisdiction and a full quasi-constitutional review structure with a Grand Chamber (to issue leading rulings) as well as a right for applicants to appeal first-instance decisions;Footnote 21 (2) broader interpretative techniques in the ‘living instrument’ doctrine (beyond the doctrine of effectiveness (effet utile) and to the doctrine of ‘autonomous meaning’ of the terms used in the Convention), which enables judges to update the European Convention in tandem with their understanding of the evolution of society,Footnote 22 as well as to expand it or even ‘create’ new rights, well beyond what the member states could have imagined;Footnote 23 (3) the Court’s competence to filter or ‘triage’ the cases brought before it, yielding a ‘priority policy’ that establishes a hierarchy of rights with priority given to the rights to life (Article 2 ECHR), to dignity (Article 3 ECHR) and to liberty (Article 5 ECHR) over others;Footnote 24 (4) the competence of the Grand Chamber of the Strasbourg Court to issue ‘leading judgments’, as provided in its rules,Footnote 25 to serve as standards or precedents to guide future and subsidiary decision-makers; (5) the Court’s competence to impose obligations on member states through the execution of judgments under Article 46 of the Rules of the Court pertaining to general measures, the implementation of which is supervised by the Committee of Ministers of the Council of Europe.Footnote 26 Taken together, these elements suggest not merely isolated doctrinal developments, but a cumulative transformation of the Court’s role, consistent with key features identified in the literature on total constitutionalism.
The literature on the internal constitutionalisation of the Strasbourg Court
The constitutionalisation of the Strasbourg Court, understood as the Court’s evolving role beyond individual dispute resolution towards a form of (quasi-)constitutional review capable of exerting indirect normative influence over domestic legal orders, has already been examined by several authors through different lenses.Footnote 27
The first lens on the constitutional process was ‘accession conditionality’, which would be flawed in the context of the massive expansion in which Eastern countries integrated into the Council of Europe.Footnote 28 Sadurski demonstrated how the eastward enlargement of the Council of Europe increased its ‘constitutionalisation’ and made the European Court a quasi ‘constitutional court’ of Europe. This process can be considered the main effect of widening the Court’s agenda and the resulting need to make activist decisions about national laws’ compliance with the European Convention.Footnote 29
Second, legal scholarship scrutinised both the use of pilot judgments, which gather many applications seemingly stemming from one root cause or a common structural and systemic flaw,Footnote 30 and the Article 46 powers that provide for general measures imposed by the Committee of Ministers on national states.Footnote 31 In particular, Sadurski’s main findings regarding pilot judgments and execution of judgments under Article 46 were that they both significantly increased the constitutionalisation of the European Court.Footnote 32 The author attributed the origin of the pilot judgment procedure to the Committee of MinistersFootnote 33 without any reference to NGOs.
Sadurski also argued that the European Court is able, through these procedures, to identify the root causes of violations and to impose general remedies and positive obligationsFootnote 34 on the condemned states, which in turn can either comply or resist.Footnote 35 The Court has increasingly been emboldened to direct national states to legislate and to adopt new administrative practices.Footnote 36 As Greer and Wildhaber put it, the pilot judgment procedure is ‘the boldest attempt to tackle the problem of defective national legislation or practice’.Footnote 37 Fyrnys argued, more explicitly, that pilot judgments enhance the constitutional function of the Court: ‘The very fact that pilot judgments are focused on the identification of systemic malfunctioning of the domestic legal order … normatively extends the binding effect of the Court’s judgments and changes their legal nature, accentuating the Court’s constitutional function’.Footnote 38 In the last decade, the Strasbourg Court has indeed addressed through the pilot judgment procedure a wide range of systemic cases, in relation to which it has increasingly engaged in judicial lawmaking.Footnote 39 These cases include, for instance, interventions thwarting the independence of the judiciary; challenges to politically motivated arrest and prosecution of opposition, politicians, journalists and activists; interventions on political parties;Footnote 40 and objection to harsh penal policies and massive prison overcrowding.Footnote 41
Concerning the constitutional role played by the Court with its increased involvement in the implementation of its judgments, Sadurski asserted that ‘the more the Court can control the implementation, the more it corresponds to being embedded in the national legal system – thus playing an autonomous role at this stage (namely, at the stage of implementation). Such embeddedness is a mark of its constitutional character – it becomes part and parcel of the national legal system, just like a domestic constitutional court is’.Footnote 42 However, this evolution contrasts with the high rate of non-execution (of judgments) due to the emergence of financial compensation and the frequent friendly settlement of human rights violations, which is strongly encouraged by the Registry of the Court.Footnote 43
The third lens scrutinised high-level conferences at which member states discuss these extended powers given to the European Court to impose positive obligations and to enforce the execution of significant judgments. The literature demonstrates that these high-level conferences constitute political moments where the future of the Strasbourg Court and its institutional design are decided.Footnote 44
Consequently, and through these three main lenses, most legal scholars concur that the Strasbourg Court is undergoing a constitutionalising processFootnote 45 which appears to be nudging it towards an American supreme court style.Footnote 46 In this regard, there have been some criticisms of the constitutionalisation of the European Court and its growing interference in domestic legal orders ruled by the separation of powers.Footnote 47 In particular, the Court has judicialised new legal domains and strengthened national courts to the detriment of other branches of government, and has stirred changes in judicial administration.Footnote 48 But most scholarly studies have concentrated on technical and political reforms and debates at the Strasbourg CourtFootnote 49 without scrutinising the role played by NGOs in shaping these judicial expansions.
Literature on legal mobilisation and strategic litigation at the European Court
Both in parallel with but separately from the literature on constitutionalisation, some sociolegal scholars have scrutinised how NGOs were given increased access over time to the European Court through complaints brought on their own (by demonstrating a specific interest) and on behalf of individuals (including a vulnerable individual who had been without representation) starting in 2014,Footnote 50 and through submission of third-party interventions starting in 1981.Footnote 51 In addition, NGOs have had the ability to submit communications to the Committee of Ministers on the execution of judgments delivered under Article 46 since 2006Footnote 52 with a view to preventing the premature closure of European supervision of a caseFootnote 53 and to opening avenues for their influence on the supervision of judgments.Footnote 54 The literature has shown in particular the importance of repeat players and the significant influence played by liberal and conservative NGOs on the jurisprudence delivered by the Strasbourg Court through both amicus curiae and direct representation of litigants.Footnote 55 In particular, in Hodson’s view, the dominant role played by NGOs challenges the principle that the objective of litigation is to achieve justice for specific individuals.Footnote 56 However, this scholarship studying the effect of NGOs’ litigation activities on international and European courts tends to overlook the impacts of NGOs’ activities on the growing constitutionalisation of the European Court.
Consequently, the siloed nature of the literature on the constitutionalisation of the European Court and the literature on strategic litigation, and their lack of intersection, have left a literature gap. Although this topic has been neglected, it is of interest given that any constitutional reforms of the European Court and any change to its institutional design potentially influenced by NGOs tend to reshape litigation and the other activities carried out by the NGOs – through processes such as interpretation, filtering, prioritisation, landmark judgments, and the execution of judgments.
Socio-legal methods and identification of the main liberal and conservative NGOs
This article adopts a socio-legal and theory-testing approach to assess whether NGO litigation contributes to the expansion of judicial authority and the objectification of disputes within the Convention system.
Although strict causality cannot be established, qualitative evidence reveals consistent patterns of NGO influence on the Court’s constitutionalisation process. Accordingly, our article applies a sociolegal methodology to determine and characterise the identity and nature of European liberal legal movements and their claims, their strategies, the objectives set up and pursued in both litigation and advocacy activities and their influence on the constitutionalisation of the Court. We have paid specific attention to the participation of NGOs before the Court participating as direct representatives, third parties or informal advisers. In this way, we have identified in both the HUDOC database through key words (‘living instrument’) and in the full content of third-party interventions submitted by liberal NGOs (access was both provided by the registry of the Court and by websites of liberal NGOs) the cases where these groups have attempted to develop the doctrine of the living instrument (N = 40). The related judgments (N = 31) have allowed us to evaluate whether the Court has been receptive to the use of this doctrine. We have also identified through the HUDOC database the pilot judgments (N = 11) that set significant precedents and changed national legislation. We have thus scrutinised, for these judgments, interventions and submissions by NGOs through briefs and direct representation and identified such NGOs. We did the same for conferences deciding the future design of the Court by identifying the NGOs that regularly intervene. In addition, to substantiate our claims, we have analysed internal documents and reports issued by liberal NGOs and more specifically by the European Human Rights Advocacy Centre (see below) involved in putting forward the pilot judgment procedure. In addition, we have conducted interviews with representatives of some liberal NGOs (N = 8) and with some European judges (N = 9) to complement and contextualise the collected information. The notes were coded in accordance with of the types of strategies named by liberal organisations to highlight comparison across interviews through their convergence and divergence.
The main NGOs identified as being involved in these cases are liberal NGOs (for a definition, see the Introduction), including the European Human Rights Advocacy Centre, the Advice on Individual Rights in Europe Centre, the International Lesbian and Gay Association, Liberty, Justice, the International Commission of Jurists, Amnesty International, Human Rights Watch, Open Society Justice Initiative, International Federation of Human Rights, the Helsinki Committees, the National Council for Civil Liberties, Memorial, and the International Protection Centre. These NGOs are financed by the same set of liberal private foundations: the Ford Foundation, the Oak Foundation, the Sigrid Rausing Trust, the MacArthur Foundation, the Open Society Foundation and several private institutes partly financed by the same donors.Footnote 57 Their similarity and solidarity are also reflected in their regular, frequent third-party interventions and the interventions they jointly submit to the Court and at high-level conferences.
This is less true for conservative NGOs (including the European Centre for Law and Justice and Alliance Defending Freedom), which exercise less pressure on the Court although they do submit amici curiae and represent litigants. Due to lower funding,Footnote 58 their smaller number and having less solidarity between them (being segmented into Protestants, Catholics and Orthodox Christians),Footnote 59 and their preference for national sovereignty, they have up to now been in less of a position to shape the case law or the institutional setup of the Court.
The impact of liberal NGOs on the Court’s living instrument doctrine
The modern idea of constitutionalism is pivotal for judges responsible for upholding the supreme text within their legal order. This model is characterised by the subordination of state power to exogenous legal and social constraints and by the growing interaction between international and domestic courts in shaping human rights law. This dynamic has become increasingly prominent within the Convention system. Accordingly, the Strasbourg Court affirmed, in the famous United Communist Party of Turkey judgment, that it ‘makes no distinction as to the type of rule or measure concerned and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention’.Footnote 60 This contribution builds on existing accounts of the constitutionalisation of the Convention system, the emergence of process-based review and subsidiarity, and broader analyses of international judicial authority.
Moreover, these developments reflect a double constitutionalisation movement: of the Convention system itself and of Convention rights within domestic constitutional orders. This dynamic reflects a broader transformation of the Convention system into a (quasi-)constitutional frameworkFootnote 61 characterised by the expansion of judicial review and the articulation of general normative standards beyond individual disputes.Footnote 62 This evolution is reflected in the growing influence of the Court’s case law on domestic constitutional adjudication.Footnote 63 By ‘speaking the law’,Footnote 64 beyond merely dispensing individual justice, the European Court increasingly formulates general principles applicable across legal orders. Although its judgments formally bind only the parties, their reasoning contributes to the generalisation of interpretative standards in an ever-growing range of fields.Footnote 65 This objectification of litigation corresponds to a shift from dispute resolution to norm-setting. At the same time, the proceduralisation of review – particularly through scrutiny of domestic decision-making processes – has become a central feature of the Court’s reasoning.Footnote 66 Rather than limiting the Court’s role, these procedural techniques often support the articulation of broader normative standards. In generating effects that extend beyond individual disputes and shape domestic legal orders, the Court increasingly exercises a constitutional function within the European human rights system.Footnote 67
Going far beyond an interest in the Court’s function of dispensing justice in concreto on an individual basis, liberal NGOs promote this objectification of European justice by promoting broad modes of interpretation of the Convention. The doctrine of the ‘living instrument’ has been identified as a central mechanism through which the Convention adapts to evolving societal standards and expands its normative reach.Footnote 68 Contributing to convince the Court to pursue interpretative dynamism based on the doctrine of a ‘living’ Convention,Footnote 69 and through repeat litigation, liberal NGOs, intervening as plaintiffs, plaintiff representatives or third parties, or in an informal plaintiff support role, tend to reinforce the constitutionalisation of the European judiciary and to interact with the principle of subsidiarity, at times reinforcing the Court’s supervisory role while leaving room for national authorities’ margin of appreciation. Rather than being displaced, subsidiarity appears as a structuring principle that coexists with the Court’s interpretative dynamism. In this respect, the expansion associated with the ‘living instrument’ doctrine does not eliminate subsidiarity, but reshapes the conditions under which it operates.
Tyrer v United Kingdom was the first ruling to enshrine the living instrument doctrine, and the first case where an NGO, the National Council for Civil Liberties, explicitly requested to submit a third-party intervention. The NGO (and also in particular Nigel Rodley, legal officer of Amnesty International, which was acting on its own behalf before the Commission),Footnote 70 had helped the litigant prepare his case and develop an extended conception of the right to dignity (concerning corporal punishment), which paved the way for the living instrument doctrine.Footnote 71 The European judge’s implicit acceptance of the latter’s arguments, based on the very ontology of the European Convention on Human Rights, suggests that the regional court was already open to the arguments raised by NGOs. This early interaction illustrates how external actors may contribute to the articulation of interpretative approaches that the Court subsequently integrates into its reasoning.
The subsequent judgments, which are considered by the Court to have had a central role in developing and putting forward the living instrument doctrine, were also litigated by several liberal NGOs.Footnote 72 In turn, once accepted by the Court, liberal NGOs have explicitly invoked in numerous briefs the ‘living instrument’ doctrine, the existence of a consensus, a European or international trend, or a comparative law study (to highlight a legal development that they argue should influence the law or practice of the state concerned), to extend the application of existing rights to certain categories (notably in cases of expulsions of LGBTQI+ peopleFootnote 73 and in the field of the protection of family lifeFootnote 74). Accordingly, in protecting LGBTQI+ rights, the Court has used the living instrument doctrine to extend Convention rights into new domains and articulate evolving standards of protection across member states. The recognition (accomplished in large part by the efforts of liberal NGOs as noted above) of a positive obligation on States Parties under Article 8 of the Convention to provide a legal framework enabling same-sex couples to enjoy protection of their marital relationshipsFootnote 75 effectively circumvents and hinders in practice the legislative choices of the Italian, Russian, Romanian, Bulgarian and Polish Parliaments by interpreting the Convention expansively. The Court has also ruled, in an advisory opinion, that non-recognition of a parent-child relationship between a child and the intended parents can cause legal insecurity for the child, violating the child’s right to privacy.Footnote 76 In reality, all the interventions made by liberal NGOs before the Court in this field, as in many others, offer a certain model of personal autonomy, transcending the historical foundations of state law.
In addition, the most influential liberal organisations have tried and continue to try to encourage judges to create new rights by invoking the ‘living instrument’ doctrine in numerous briefs (notably to impose new obligations on the state,Footnote 77 to promote the right to abortion, especially in Poland,Footnote 78 or to persuade the Court to recognise the right to euthanasia under Article 8 of the Convention).Footnote 79 These contentious rulings demonstrate the Court’s commitment to treating the Convention as a ‘living instrument’. The systematic objectification of private disputes combined with private actors’ repeated interventions has contributed, along with other factors, to the emergence of interpretations through which the Court extends Convention rights so as to promote the consolidation of standard interpretations that influence national laws. This occurs even where no full European consensus exists regarding the protected right, as the Court may, without explicitly recognising such a right, nonetheless further the liberalisation of rights in line with the objectives pursued by liberal NGOs acting before it. The Court recently accepted the existence of a woman’s right to abortion in part because of respect for the private life of the applicant,Footnote 80 while also referring to concerns relating to the institutional context of the national judiciary, which presumably made access to abortion more difficult.Footnote 81 Similarly, the Court has accepted the conditional practice of euthanasia in light of Articles 2 and 8 of the Convention.Footnote 82 Even more recently, climate cases have culminated in the KlimaSeniorinnen caseFootnote 83 delivered by the Court that enshrines and enforces a right to a healthy environment, contributing to the ‘climate constitutionalisation’ ‘with de facto constitutional effects capable of imposing lawfulness requirements on states’.Footnote 84
Liberal NGOs do not even hesitate to advocate that the Court should act as a constitutional judge controlling the executive and legislative powers – in the name of necessary respect for treaty rights. In the Nazari v Denmark Footnote 85 case, which concerned a parliamentary decision whether to grant citizenship to a foreigner, the Open Society Justice Initiative intervened directly opposing the national parliament’s power to decide whether or not to grant citizenship by passing a law, precluding the possibility of challenging the decision in court.
Similarly, liberal NGOs attempt to objectify litigation in areas that involve new factual situations, generally where the European judge is confronted with emerging national legislation that offers little protection to personal rights. Thus, in three cases concerning the protection of personal data, the Court, at the instigation of NGOs,Footnote 86 accepted the ineffectiveness of domestic remedies, rendering the standard admissibility criterion inoperative. These historic decisions have had the direct effect of reshaping the application of subsidiarity in this context, reflecting the Court’s willingness to engage directly with the systemic implications of the issue. The approach taken by the European Court, strongly supported by active NGOs, is fraught with implications in terms of judicial changes to national legislation, as it directly evaluates the ‘quality of the law’ in order to determine whether the legislative power has sufficiently limited the executive power at the national level in accordance with the necessary respect for human rights. Such scrutiny reflects a form of constitutional review in which legislative choices are assessed against externally defined standards of rights protection.Footnote 87 Moreover, by reviewing the legislative power in abstracto, with the aim of obliging the state to modify its law, the Court takes on a constitutional dimension.
For their part, conservative NGOs, while providing data and arguments in abstracto that inevitably contribute to the objectification of the disputes in which they intervene (in particular in defence of the traditional family and the right to prenatal life), try to counteract the constitutionalisation process of the Court by promoting jurisprudential restraint at the European level in the name of the necessary respect for the principle of subsidiarity and the national margin of interpretation, thus recalling the conventional nature of the system. Conservative NGOs refuse to accept – or even denounce the existence of – a consensus revealed by liberal organisations.Footnote 88 When conservative organisations do so themselves, they systematically conclude that state law complies,Footnote 89 thus rejecting any interpretive dynamic that could expand the Court’s empire. Similarly, although they adopt an ‘activist’Footnote 90 stance in certain cases, notably those concerning freedom of expression and home education,Footnote 91 conservative NGOs never invoke the doctrine of the living instrument in their briefs and remain particularly respectful of the national margin of appreciation.
However, in light of the majority of developments in its case law,Footnote 92 the European Court seems increasingly sensitive to the liberal internationalist logic promoted by the liberal NGOs intervening before it, which enables it to reinforce its demands even beyond the text of the Convention sensu stricto, thus imposing its role above the national orders in the name of protecting guaranteed rights. Such positioning reflects the emergence of a supranational normative authority capable of structuring domestic legal systems through rights-based reasoning.Footnote 93 To acknowledge the influence of NGOs on the Court’s reasoning and even on its final decisions is to admit that they have succeeded, through their representation and third-party interventions, contributing to convincing the Court to assert its extensive constitutional power. The Court itself seems more and more inclined to adopt dynamic interpretations – in response to the increasing number of controversial governmental actions likely to lead to systemic changes.
Consequently, the doctrine of the living instrument goes hand in hand with such liberal litigation as pushes for an expansive interpretation of the Convention which obliges States Parties to amend and even to pass new laws. Such a process relating to the increasing role played by liberal NGOs in litigation and, indirectly, in legislation corresponds with the evolution of total constitutionalism.Footnote 94 These developments show that proceduralisation, subsidiarity, and interpretative expansion are not mutually exclusive but interact as complementary dimensions of the Court’s evolving role. Taken together, these elements suggest that the ‘living instrument’ doctrine operates as a central vector of constitutionalisation, combining interpretative expansion, procedural adaptation, and the progressive objectification of disputes. This suggests that the evolution of the Court cannot be reduced to a linear process of expansion, but reflects a more complex reconfiguration of its role through the interaction of multiple doctrinal and procedural dynamics.
The adoption of the pilot judgment procedure under the influence of a liberal NGO financed by private foundations
In the beginning, significant NGOs like the Open Society Justice Initiative and the European Human Rights Advocacy Centre conducted research on relevant aspects of human rights constitutionalisation in Europe. Their objective, inter alia, was to expand their influence over the ongoing reforms of the Strasbourg Court. A new study of the Court’s pilot judgment procedure was undertaken by the Advocacy Centre after the Court’s first experiment with the procedure in 2004.
While the adoption of this new procedure had been justified by a recurrent judicial backlog of cases showing a repeating pattern, it was opposed by Judge Zupančič, who is close to a conservative NGO,Footnote 95 the European Centre for Law and Justice, on the ground of the increasing constitutionalisation that would be generated by the pilot judgment procedure: ‘The Court clearly does not have, with the usual paraphernalia of constitutional law, an interest in meddling in what national legislation should or should not do. … We are not and cannot be a constitutional court for the 46 countries concerned’.Footnote 96 Judge Zupančič argued that the Court would indeed be very similar to a constitutional court if it had the ability to decide ‘that a particular piece of national legislation that had been the cause of the case before us was incompatible with the Convention, or in other words “un-conventional”‘.Footnote 97 This attitude is representative of the position of conservative NGOs, which not only do not have the material and financial means to build pilot cases, but also, and above all, have no strategic interest in doing so, given their quasi-systematic reverence for state sovereignty and their opposition to judgments liberalising the Convention. However, this conservative opposition failed with the mobilisation of the pilot judgment procedure under the influence exerted by the European Human Rights Advocacy Centre.
The Advocacy Centre indeed played a leading role in the refinement and definitive adoption of the pilot judgment procedure. This NGO specifically informed and instructed the Court while it was developing a code to govern pilot judgment operations.Footnote 98 The Court had commissioned the Advocacy Centre to assemble a team to evaluate the pilot judgment concept. Their findings had consisted in defining the nature – systemic human rights violations – of legislation and administrative practices subject to the procedure, as well as the standards of measurement, that the Strasbourg Court had requested to strengthen the Committee of Ministers’ supervision of the execution of the judgments of the Court. Key changes instigated by the Advocacy Centre related to new abilities for the sections and chambers of the European Court of Human Rights, not just its Grand Chamber, to issue pilot judgments.Footnote 99 In addition to expanding the procedure, the Advocacy Centre also recommended giving top priority to pilot judgments on issues that both the Court and the Committee of Ministers had to deal with.Footnote 100 The Advocacy Centre recommendations on pilot judgments and a report on their effects on national systems were disseminated at a seminar held in Strasbourg in June 2010 and attended by a variety of stakeholders, including Court judges Garlicki and Tulkens, registrars Fribergh and O’Boyle, and Mayer, Head of the Ministers’ Department for the Execution of Judgments, along with representatives of the States Parties.Footnote 101 The aim of the seminar was to present the final version of the pilot judgment procedure elaborated by the Advocacy Centre and to pave the way for its further adoption by the European Court.
Directly inspired by the Advocacy Centre’s results, in March 2011 the Court announced an addition to the Court Rules to clarify, codify and affirm the pilot judgment procedure.Footnote 102 Rule 61 provides:
Any application selected for pilot-judgment treatment shall be processed as a matter of priority in accordance with Rule 41 of the Rules of Court. The Court shall, in its pilot judgment, identify both the nature of the structural or systemic problem or other dysfunction as established as well as the type of remedial measures which the Contracting State concerned is required to take at the domestic level by virtue of the operative provisions of the judgment.
Delegating such potentially legislative tasks to the European Court of Human Rights increases quite significantly the constitutionalisation of the Court, to the detriment of legislative bodies everywhere in Europe. Over and above the provisions entitling the Court to demand that condemned States Parties submit to specific measures, pilot judgment proceedings promote a process of constitutionalisationFootnote 103 at an even higher order of governance, by requiring the collation, selection, aggregation and proper lodging with the Court of a multitude of cases bearing on a common theme in the reform agenda shared by legal professionals of like mind, a circumstance that knits them tightly together just as if they constituted a governing body.
Penal policies offer a good illustration of this trend. While the power to inflict punishment has traditionally been regarded as an essential prerogative of the state, over the last two decades the Court has increasingly challenged and monitored this powerFootnote 104 through judicial control exercised over national criminal and prison administration. Through the pilot judgment procedure spearheaded by liberal NGOs (including, mainly, the Helsinki Committees) by collecting complaints, representation and third-party interventions, the Court has analysed the root causes of prison overcrowding with a view to guiding new criminal and prison policies and establishing and offering remedies to detainees. The Court asserted that ‘If the State is unable to ensure that prison conditions comply with the requirements of Article 3 of the Convention, it must abandon its strict penal policy in order to reduce the number of incarcerated persons or put in place a system of alternative means of punishment’.Footnote 105 Criminal legislation and sentencing practices which increase the length of sentences and the ensuing high numbers of long-term prisoners and those sentenced to life imprisonment are considered by the Court to be among the root causes of increased rates of imprisonment and thus to be in need of revision.Footnote 106 In this respect, through pilot judgments concerning prison overcrowding and detention conditions, the Court and liberal NGOs encouraged significant reforms of national penal and prison policies, including alternatives to detention and revisions of sentencing practices.Footnote 107
The national judiciary, also a traditional prerogative of the state, is also increasingly challenged and controlled by the European Court of Human Rights, and not only through the creation of new domestic remedies. For instance, the Court, spurred on by liberal NGOs, has recently requested that Polish authorities put an end to their judicial reforms and bring their judicial system into compliance with the principle of the independent tribunal.Footnote 108
In this regard, it appears that gathering complaints at scale is out of reach for individuals; only organisations that are recurrent litigants before the Court have that capacity. Significantly, the Court has become reliant on the technical quality of the complaints brought before it, and thus on NGOs whose complaints can bear scrutiny.Footnote 109 The high technical quality of NGOs’ complaints makes it easy to select those cases as fit for the pilot judgment procedure. Thus, professional litigation undertaken by NGOs contributes to substantiating the assertions made by advocates and NGO representatives. In fact, some European judges may signal to NGOs that their cases would be welcome as bases for pilot judgments.Footnote 110 Consequently, this procedure fosters NGOs’ participation in the constitution of cases and judgments and goes beyond a mere process to, instead, comprise total constitutionalism as defined above. The pilot judgment procedure also reshaped the Court’s handling of applications by reinforcing a prioritisation policy focused on structurally significant cases and issues of general interest. Introduced in 2009 and amended in 2017, this policyFootnote 111 integrated recommendations advanced by the European Human Rights Advocacy Centre concerning the prioritisation of pilot and systemic cases.Footnote 112 In practice, it favours applications raising structural questions and advantages experienced NGOs and private foundations capable of identifying, aggregating, and strategically litigating cases most likely to fit the Court’s procedural priorities. Thus, the prioritisation policy, closely connected to the development of pilot judgments under NGO influence, contributes to the further constitutionalisation of the Convention regime.
One last repercussion was the opportunity created in 2006 under the Strasbourg Court’s Rule 9Footnote 113 for NGOs to assist in the execution of judgments by submitting their comments to the Committee of Ministers responsible for executing the judgments of the Court under Article 46 of the European Convention on Human Rights, as amended by Protocols No. 11 and 14. This new-found participation empowers NGOs to monitor and critique the implementation of pilot judgments, even when they entail structural reforms of States Parties’ organic law.
Participation of NGOs in the process of implementing ECHR judgments and reforms
Liberal NGOs and the private foundations that fund them also participate in advocating reforms to the very structure of the Court, including expanding its influence (e.g. the prevalence of its living instrument doctrine) as well as enhancing the execution of its judgments. These reforms, which tend to constitutionalise the Court, are geared towards developing sustainable long-term litigation strategies and amplifying their social and political impacts. There is a discernible trend in the Council of Europe to invite NGOs of this kind to participate in the committees responsible for such reforms. What has been dubbed ‘the caseload crisis’ – applications peaking and overloading the Court – was the dominant focus of the recent phase of Court reform. This started at Interlaken, where a high-level conference organised by the Committee of Ministers in 2010 launched a reform spanning more than a decade, with conferences following up in Izmir (2011), Brighton (2012), Brussels (2015), Copenhagen (2018) and Reykjavik (2023). At these conferences, liberal NGOs including European Human Rights Advocacy Centre, Helsinki Foundation for Human Rights, Human Rights Watch, Advice on Individual Rights in Europe Centre, the International Centre for the Legal Protection of Human Rights, JUSTICE, International Commission of Jurists, the Helsinki Foundation For Human Rights and the Open Society Justice Initiative advocate for and obtain reinforcement of the effective execution of pilot judgments and judgments delivered under Article 46, especially against Italy, Poland, Russia, Hungary, the Czech Republic, Moldova and Ukraine.Footnote 114 The liberal NGOs also ask for a broadening of the scope of the Court’s jurisdiction to interpret and apply the Convention, promoting an attitude of judicial activism and fighting the principle of subsidiarity invoked by certain member states.Footnote 115
However, monitoring execution of judgments is only one part of a broad effort by these liberal NGOs to sharpen the living instrument doctrine by intervening in the nominations of judges and lobbying for procedures that increase the impact of their own strategic litigation.Footnote 116 This approach prioritises more efficient implementation of European judgments at the national level with well-resourced tactics and tools like the newly created independent body – the Special Representative on Implementation – which is to help implement pilot or leading cases and specific sanctions against recalcitrant states. All of this was notably echoed by the European Human Rights Advocacy Centre and the European Implementation Network (see below) – created and funded by Judgment Watch, the Helsinki Foundation for Human Rights and the Open Society FoundationFootnote 117 – at the summit of heads of state on 16-17 May 2023 in Reykjavik, organised by the Council of Europe.Footnote 118 Following the summit that scaled up liberal NGOs’ role in monitoring member states’ compliance with the Convention and the Court’s judgments, co-operation programmes were set up to assist member states in the implementation of judgments. And the Committee of Ministers reasserted the necessity of making the execution of the Court’s judgments, and pilot judgments in particular, more effective.Footnote 119
In parallel, the Human Rights Implementation Centre at Bristol University, the Human Rights Centre at the University of Essex and at Middlesex University, and the Open Society Foundation, took a similar path by co-funding a project to identify more efficient procedures for executing the Court’s judgments and get more resources allocated to the Court:Footnote 120
The [Committee of Ministers] should be encouraged and resourced to use their existing authority more robustly, transparently, and effectively in overseeing the execution of judgments. We believe the answer lies in the enforcement and implementation of judgments. We welcome current proposals to recruit additional judges and/or lawyers to help the Court.Footnote 121
Finally, the European Implementation Network cited above was created and funded to advocate for better execution and implementation of the judgments delivered by the European Court.Footnote 122 The Network, which gathers the most active liberal NGOs in Europe litigating the Court,Footnote 123 organises regular NGO briefings and formal meetings with representatives of the Committee of Ministers (to which conservative organisations are not invited) to obtain agreements on the judgments that have to be specifically prioritised, supervised and enforced.Footnote 124 This process tends to orient and reinforce the execution of certain judgments litigated by liberal NGOs and creates an opportunity for an increased level of constitutionalisation.
Complementary to their litigation and advocacy for reform, the European Implementation Network, the European Human Rights Advocacy Centre and the Open Society Foundation lobby the Council of Ministers during the regular meetings of all its officials, ministers, ambassadors and diplomats.Footnote 125 Furthermore, these liberal organisations provide information and expertise to the Council in quarterly briefings.Footnote 126 All such meetings offer these NGOs and private foundations ample opportunities to advocate for more favourable handling and execution of pilot cases which they have identified as priorities.
Conclusion
By encouraging its public ‘speaking the law’ function, private interest groups convince the Court to strategically select cases that are likely to establish clear jurisprudential principles in an ever-increasing variety of legal areas. As a result, the development of European human rights law is partly shaped by the impetus provided by NGOs, that use strategic litigation to influence the Court.Footnote 127 The NGOs leverage their skills to bring certain issues to the fore and keep certain claims before the Court, thereby contributing to the emergence of jurisprudential solutions that may prevail over national preferences in certain contexts. Accordingly, constitutionalisation may also be analysed as reflecting the increasing capacity of private actors to promote specific normative visions within the Convention system,Footnote 128 and its acceptance and affirmation as invaluable to the NGOs under study here, as it ensures that they participate in reshaping the conditions under which states exercise their prerogative to define rights within their jurisdiction, while at the same time the NGOs retain their ability to influence the Court’s systemic construction.
Attention to this phenomenon – liberal NGOs reshaping the evolution of the Court’s structure and jurisprudence, and its living instrument doctrine – has received comparatively limited attention from the academic focus on the technicalities of reform. The adoption of the pilot judgment procedure, led by the European Human Rights Advocacy Centre and funded by the philanthropic foundations, demonstrates the scale of the collaborative efforts needed to influence the Court’s procedural and institutional development. The pilot judgment procedure, crafted to leverage the interconnections of litigation to identify what liberals consider the common systemic flaws in national legal systems, illustrates the substantial impact that liberal NGOs have on the Court’s procedures and by-laws. This impact has entailed a policy of rights prioritisation or triage that contributes to the constitutionalisation of European jurisprudence and favours ‘lawfarers’ who have the prowess to navigate the Court’s labyrinthine procedures. The triage of rights amplifies the influence of NGOs well-versed in setting the Court’s agenda, and their newfound participation in the execution of judgments extends their involvement in shaping structural reforms affecting member-state institutions and practices. Finally, their inclusion on the committees overseeing reform of the Court itself further consolidates their role over the institutions of the rights regime. While these elements do not establish a strictly causal relationship, their convergence points to consistent patterns of interaction between NGOs and the Court that support the interpretation developed in this article.
Overall, non-state actors appear to play a structuring role in the constitutionalisation of human rights jurisprudence and total constitutionalism (characterised by the growing involvement of civil society through NGOs in constitutional justice and the expansive interpretation of individual rights) in multifaceted ways. Strategic litigation, networked personnel co-optation, and integration into Council of Europe institutions constitute a significant transformation to traditional norms that contributes to shaping the future trajectory of European rights jurisprudence. The concerted efforts made by liberal NGOs to expand civil society’s role in Convention governance contribute to the constitutionalisation of the human rights landscape, and call for a re-evaluation of the Council of Europe’s normative framework and decision-making processes, and the recognition of non-state actors as a force increasingly relevant in shaping the Strasbourg Court’s future. In this perspective, the cumulative effect of doctrinal developments, procedural innovations, and patterns of NGO intervention supports the view that the Court increasingly operates as a constitutional actor within the European legal space.Footnote 129 This dynamic, characterised by the expansion of interpretative authority, the objectification of disputes, and the extension of the Convention reasoning into new domains, (and that could be extended to the study of other international Courts) aligns with the core features associated with ‘total constitutionalism’.
Funding statement
This article has been designed within the framework of the ERC advanced JUST.PEN (Grant agreement ID: 101141553) and the ANR JUST_PEN both led by Gaëtan Cliquennois. The ERC project (https://justmoral.hypotheses.org/) addresses in particular the topic of legal mobilisation by liberal and conservative NGOs at the European Court of Human Rights and the Court of Justice of the European Union and its impacts on European policies in the transversal fields of abortion, surrogacy, euthanasia, detention policies, counterterrorism, prostitution, pornography and hate speech. The ANR project is also interested in liberal and conservative litigation and advocacy in environmental and religious issues.
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