The Court as a Watchdog of Democracy: Separate Opinion in Novaya Gazeta and Others v. Russia and Proposal for Stock-Taking

By Burak Tahsin Bahce

In Novaya Gazeta and Others, delivered on 11 February 2025, the European Court of Human Rights issued yet another judgment against Russia, finding multiple violations, importantly a violation of Article 10 of the Convention. Judge Pavli expressed his concurring opinion addressing a broader issue -the Court’s role as a ‘watchdog of democracy’.

While the entire judgment is important in many respects, this blogpost comments upon Judge Pavli’s separate opinion which extends beyond the case at hand and marks a topical question concerning the Court’s response to ‘democratically-challenged systems’.

Overview of the judgment

The case concerned, under Russia’s contested post-invasion legislation, the penalization of 178 individuals through criminal and administrative proceedings and the shutdown of two media outlets, on various accusations such as “discrediting the military’ and “disseminating knowingly false information”. The sanctions were imposed for their various forms of expressions, containing criticisms about Russia’s invasion of Ukraine, different definitions of the military actions than the officially named “special military operation”, anti-war protests, support messages for Ukraine, drawing substantial or symbolic similarities with Nazis, some more provocative forms of expressions, and – in particular with respect to two media institutions’ broadcasts – the coverage of military hostilities in a way that diverged from the official narrative of the events.

Notwithstanding the lack of cooperation of the Russian Government, the Court examined the case extensively, from the legality of the said post-invasion legislation that constituted the formal ground for the complained events to the political background in which the applicants faced various forms of suppression such as being labeled as ‘foreign agents’ or ‘extremists’. It found violations of Article 10 with respect to all applicants, Articles 3, 5, and 8 with respect to those applicants that invoked them, and did not consider it necessary to examine the complaints under Articles 6, 14, and 18.

Separate Opinion of Judge Pavli

The Third Section held the decision unanimously. The separate opinion expressed by Judge Pavli pertained neither to the Court’s analysis nor to the conclusions but was dedicated rather to handling the Court’s role in the face of ‘democratically challenged systems’. Reflecting on the Court’s experience with Russian cases, he viewed the present situation as unfolding along an anti-democratization trajectory pursued by the Government. He critically questioned whether ‘the Court has taken proper notice of this’ and whether ‘it could have done something (more) about it.’

Judge Pavli underscored the overarching value of ‘democracy’ in the Convention system, referencing the Preamble, the limitation clauses, and the Court’s jurisprudence. However, he noted ambiguities in how ‘democratic society’ should be understood. Accordingly, he critically asked: how should the Court assess an alleged ‘necessity in a democratic society’ when a State’s democratic credentials are in serious doubt? Should it construe this notion as ‘an abstract yardstick, derived from a sort of idealized form of democracy’ or also consider the general ‘state of democracy’ in that country? He argued that the former position disregarding the bigger picture of democracy would be akin to assessing ‘the health of individual trees (while) a fire is raging in the forest,’ which may create a misleading impression of the state of freedoms.

Judge Pavli regarded the Court’s case law against Russia over the past two decades as ‘a sad chronicle of incremental but systematic shrinking of democratic spaces in this country’. He drew further attention to the fact that Russia used elaborate legal justifications couched in human rights language while implementing distinctly restrictive policies. In such situations, in his view, determining individual violations one by one over thousands of cases, as the Court has done, would not be conducive to capturing the broader reality of this ‘rule by law’ -the bad faith usage of domestic laws and institutions- and the gradual tightening of control over political freedoms. He argued that when faced with such democratic backslidings, stock of the situation must be taken that requires ‘a bird’s-eye view for which the Court has arguably not equipped itself sufficiently in its working methods and overall approach’.

Judge Pavli pointed out that, referring to the Convention’s drafting history, the Court as a post-authoritarian institution bears a fundamental mission to ‘sound the alarms at the first hint of déjà vu’. Accordingly, in his view, it must (be able to) transcend dealing exclusively with individual rights in an isolated manner and, in doing so, concern itself also ‘with the state of the “democratic forest” as a whole’. With regard to the situation in Russia, he was not of the view that ‘the Court sounded alarm loudly enough and early enough’ and, importantly, questioned whether the Court is ‘now prepared to do so in relation to other European political systems whose democratic protections might be eroding in ascertainable ways’.

In the face of the deficiencies of the Court in this sense, Judge Pavli suggested that the Court could have made ‘a greater use of existing procedures’ but may also need to develop ‘entirely new “stock-taking tools” in relation to democratically-challenged national systems’. He argued that it is possible to do so without undermining the impartiality of the Court concerning the outcome of individual cases. What might be done, he suggested, is ‘simply a matter of connecting dots’.

He concluded by briefly acknowledging the issue’s political dimension and the need for a judge to remain realistic about the practical constraints on the Court’s potential impact. Accordingly, the proposed approach is distinguished from labeling countries as democratic or anti-democratic. Nonetheless, he found it implausible that the Court should remain silent ‘on the matter of democratic health among the States Parties’, the monitoring of which was the mission that has been ‘entrusted to it by its founders.’

Commentary

In the face of rising populism and increasing threats to democracy and the rule of law, the question of the Court’s role in safeguarding these values preserves its topical relevance. The issue has been consistently addressed, whether over specific democracy and the rule of law crises, by the Court’s procedural strategies (e.g. impact cases), or in statements by the Court’s presidents on various informal occasions (e.g. one of the recent speeches by Marko Bošnjak). Judge Pavli’s separate opinion makes meaningful contributions to debates on this issue with a notably self-critical stance. However, in my view, his ‘stock-taking’ proposal warrants further scrutiny and raises several fundamental questions.

Need for a Holistic Approach

It is hard to disagree with the pressing need for a more holistic approach or, in Judge Pavli’s words, a ‘bird’s eye view’ in tackling the backlashes to democracy and the rule of law. As the Court has consistently emphasized – and as Judge Pavli rightly noted – ‘democratic society’ is the only environment in which individuals can fully enjoy their rights. When democracy deteriorates, ensuring the effective protection of Convention rights requires more than isolated findings; it necessitates reinforcing the quality of democracy itself. Moreover, taking Shany’s goal-based approach, the elements relied upon in the opinion – the travaux preparatoires and the textual references– support the view that, beyond ‘the health of individual trees’, ‘the fire raging in the forest’ should not be disregarded, in order to ensure the organizational effectiveness of the Convention system.

On the other hand, practical and other effectiveness-related concerns can also not be overlooked. As aptly pointed out in the opinion, serious erosions in democracy and the rule of law often lead to gradual and sustained suppression of freedoms and a significant surge in appeals to the Court’s intervention, often as the only hope for those living there. Delivering individual findings alone, even in large numbers, may, in practice, do little to curb systemic violations unless respondent states are mindful to the actual meaning of them and respond in good faith, which would be overly optimistic to expect. Indeed, experience over the past decade, including that concerning Russia, suggests otherwise: states have often responded with resistance rather than compliance. In such cases, handling the crisis solely over individual findings in an isolated manner risks inefficacy at the national level and reinforces the perception of the Court as a de facto fourth-instance remedy, severely exacerbating its workload. This would be undesirable in many senses, particularly in terms of the principles of shared responsibility and subsidiarity, further straining the persistent concerns about the Court’s administration of justice and effectiveness.

Possible Legitimacy and Impartiality Questions

However, one should bear in mind that (re)defining a court’s, particularly an international human rights court’s, role in this regard is not straightforward. Stretching the system beyond its limits directly or indirectly triggers sensibilities about state sovereignty and could provoke negative reactions from Member States (as noted here and here). Indeed, as former President Jean-Paul Costa has expressed (p. 2), ‘judicial restraint is a cardinal virtue’ in determining the appropriate level of deference or interference in democratic governance, and the Court is sensitive to ‘the boundaries of its own competence’. Similarly, Bates cautioned against viewing the Convention solely as an integrationist tool and overestimating the Court’s mandate. He pointed out that ‘prudent self-restraint’ is required to ensure that the Convention system remains robust and effective without overstepping its intended role.

The ‘conscience to sound the alarm’ that drafters sought to embed in the Convention (p. 292) is generally understood to be reflected in Article 18 (e.g. here p. 275 and here p. 116). How this conscience is performed might be a matter of how the Court navigates its existing tools, including Article 18 and beyond. For instance, Demirtas (no. 2) judgment, with its substantial analysis and tone used, was commented on this blog as demonstrating the Court’s ‘true potential to challenge the use of domestic laws and institutions to silence opposition and suffocate pluralism – an “autocratic legalism” (which was also drawn attention in the separate opinion)’. The stock-taking proposal as it stands, albeit perhaps in need of further concretization, appears, at least to me, to suggest a form of excessive judicial supervision over democracy in the state concerned. It is difficult to argue that the relied-on references alone authorize the Court to this extent to conduct such a review beyond its existing mechanisms.

On the other hand, while the consideration in the opinion that the proposed ‘stock-taking’ would not undermine impartiality in individual cases might be valid, it may, in practice, still affect the Court’s perceived position. Besides the impartiality between parties of a particular case, its perceived neutrality among state parties might be endangered. This, in turn, could provide certain states with a strategic card for resisting the Court’s authority or leveraging domestic politics against it.

Democratic Society as an ‘abstract yardstick’?

The extent and seriousness of ambiguity noted in the separate opinion regarding the notion of ‘democracy’ and the condition of ‘necessity in a democratic society’ appears contestable to me. Since the Handyside v. the UK (e.g. in Novaya Gazeta case (§106)), the Court consistently reiterated certain elements ‘without which a society cannot be considered democratic’. Given the variety of complex circumstances tackled in the extensive case law, these could be considered as providing a certain level of clarity and guidance, which is further supported by the more elaborate rule of law jurisprudence. Given the Court’s jurisdiction covers states with varying democratic maturities and sensitivities, the criticized level of abstractness may in fact have even been conducive to better capturing particular conflicts and factual nuances and aligning with the ‘greater unity’ across Europe while upholding the shared value of democracy. In this sense, rather than resolving ambiguity, the proposed stock-taking approach could risk introducing greater relativity and undermining the idealized meaning of democracy.

Existing Shortcomings in the Court’s Practice

The Russian case was not the first time that the Court’s authority and responsiveness have been tested by democratic decline and rule of law decays. Judge Pavli’s reference to ‘greater use of existing procedure’, in this sense, is encouraging to revisit shortcomings and institutional tendencies in the Court’s existing practice. Among others, a few main issues could be noted here.

As Madsen argued, the Court appears to follow a strategic shift, by performing ‘situational self-restraint’ in its interventions and employing a sort of ‘legal diplomacy’ to balance its legal imperatives with the practical realities of state sovereignty and international relations. Although this has been viewed as an understandable strategic move to uphold the Court’s authority and ensure compliance, it may, as commented (p.178), ‘have constrained, toned down, and delayed its response to systemic threats’.

In a similar vein, the Court has also been criticized for not being sufficiently mindful and responsive to ‘authoritarian resistances’ and ‘non-compliance tactics’, even having been complicit in them in some senses. It faced frequent criticism for its excessive deference to national authorities despite clear illiberal threats, methods of challenging backlog issues, reluctance to engage in substantive review -including through strikeouts and inadmissibility decisions-, and failure to produce timely responses (The latter was also discussed in this blog in the context of the Court’s ‘judicial passivity’ regarding complaints about the Russian foreign agent law).

Most importantly, the effectiveness of the Court’s use of Article 18, which is the main adjudicative tool for sounding the alarms against bad faith restrictions, remains questionable. The contested ulterior purpose test introduced in Merabishvili has been rightfully viewed as normalizing the bad faith restriction ‘so long as it is not predominant reason’(e.g. in the concurring opinion of Judges Yudkivska, Tsotsoria and Vehabović to the said judgment, as well as here and here). Moreover, the evidentiary threshold in case of multiple purposes is presented is, albeit loosened, still too high. Indeed, the subsequent practice contained controversial examples. On the other hand, as Nussberger noted, the exponential increase in the usage of this ‘nuclear option’ might pose a risk of being ‘understood as everyday criticism and lose their special effect of “blame and shame”’. Moreover, Cali’s study reveals that, despite the Committee of Ministers’ increasing collective responsiveness, their reflections at the State-level have varied, which also undermines the Convention’s ability to respond to these crises.

The Court and the Broader Institutional Framework of the Council of Europe

Given the need for a systemic approach and effective guardianship against democratic backslidings and considering the Court’s institutional limits and practical constraints, it should be recalled that, as Jean-Paul Costa previously noted, the Convention must be seen not as ‘a solitary instrument but one element in a broader constellation of conventions and other texts developed by the Council of Europe’. This is true also for the operational dimension. In the subject matter of this post, for instance, the Committee of Ministers’ performance in the execution phases, or other bodies such as the Venice Commission, cannot be left aside. By virtue of this, the mission of ‘sounding the alarm bells’, while undoubtedly referring to a judicial function performed by the Court, may be understood as a collective and complementary responsibility of various institutions, within their different limits and capacities.

Besides, as briefly pointed out above, the Court has made arguably significant compromises in balancing its fundamental function with practical challenges related to operational efficiency. For instance, Lemmens and Van Drooghenbroeck observed that the way the Court addresses the structural problems in states with a hidden preference of doing constitutional justice prioritizing its own proper functioning often sacrifices the individual justice. Then, it is fair to ask: can and should it now be the Court that assumes the entire alarm-sounding role? Or should one reflect rather, as some have done, on the structure of all Council of Europe organs’, undoubtedly including the Court’s, (in)ability to produce coordinated, timely, and coherent responses within their own complementary roles and mandates?

Conclusion

The Court’s ability to respond to democratic backslidings is increasingly vital. In this respect, Judge Pavli’s separate opinion, with its self-critical tone, is highly remarkable. There is no doubt that substantial efforts remain necessary to rectify the deficiencies in the Court’s practice and to strengthen the Court and Council of Europe’s overall responsiveness. The stock-taking proposal, however, may be seen as raising some questions of justification and feasibility, both theoretically and practically.