'Populist and authoritarian governments in Europe have severely eroded the basic constitutional safeguards distinctive of liberal democracy. These attacks also target the recognition and exercise of human rights – and their ultimate guardian, the European Court of Human Rights (ECtHR) and the Council of Europe (CoE). Several state parties with a populist or authoritarian government in place refuse to implement adverse judgments of the Court. Others make it very difficult for individuals to exhaust domestic remedies, in order to put the ECtHR out of their reach. How does the ECtHR/CoE respond, and how could it respond better?
Studies of responses to populism and authoritarianism in the European Union as well as those of constitutional law and theory have abounded in recent years. Yet, no comprehensive study has so far examined the response and opportunities of the European Court of Human Rights and the Council of Europe more generally. Valuable existing contributions largely refer to particular cases often without distinguishing the systemic features of the Court and without attending to its adjudicatory practice in great depth. Can the ECtHR and the CoE can use existing tools crafted by legal scholars and political scientists given that its international, human rights-focused and subsidiary role?
The workshop aims to fill this gap by examining the Court’s role (including the CoE). For example, which variety of populism targets the ECtHR specifically, and is it different from the constitutional arena? And how has the Court responded so far? Such attacks may lead the Court to further develop – or limit – its jurisdictional, interpretive and investigative arsenal. The Court has been conventionally portrayed as the external guarantee for the basic democratic rights of individuals – a notorious example of ‘militant democracy’. Is the Court today up to the task of facing more subtle and insidious threats to democracy, the rule of law, and human rights? The workshop also interrogates whether these threats require the Court not only to pursue new policies, but also require reform of the systemic relationships between the Court and domestic authorities, in particular the mechanisms expressing subsidiarity. National authorities have been conceived as the “compliance partners” (Alter) already at the Court’s beginning. Yet, populists and authoritarians have developed advanced political and legal techniques to use and abuse subsidiarity to their advantage, thereby undermining the structure of the Court’s system. Do these domestic techniques require reform of the subsidiarity roles of the ECtHR?'