Calibrating the response to populism at the European Court of Human Rights

Abstract

This article aims to examine the relationship between the populist phenomenon and the European Court of Human Rights (ECtHR) from a normative perspective. It asks whether the Court, given its particular jurisdiction and established practice, is equipped to respond to the attacks of populist governments on European Convention on Human Rights (ECHR) rights and how it should adjust its interpretive apparatus to address these attacks. To this end, this article first reconstructs the ideational structure of populism, distinguishes two ideal-types (an exclusive/naturalized one and an inclusive/aggregative one, respectively), and posits that both ideal-types entertain a distorted account of democracy that fuels antagonism and partisanship. Second, it argues that across this spectrum the notions of pluralism and deliberation offer a vantage point to evaluate the role and practice of the ECtHR in responding to populism. Based on recent empirical studies evidencing populist attacks on democratic rights and structures, the article highlights the prototypical phenomena of media and electoral captures. Turning to the Court’s practice, this article shows how pluralism and deliberation heavily inform its reasoning as to the nature, scope, and justification of the two ECHR-relevant rights—namely freedom of expression and the right to free and fair elections—and the decisive role these notions play in resolving cases in proportionality analysis. The article finally explores whether the Court’s interpretive equipment is tailored to address the populist attacks on these fronts and articulates a practice-induced set of interpretive principles and techniques to better detect populist abuses.