December 17, 2025
By Dr Esra Demir-Gürsel
***
Between the 12th and the 22nd of December, Strasbourg Observers is hosting a blog symposium entitled ‘The Role of the European Court of Human Rights: Progressive, Conservative, or Both?‘ The introduction to the symposium can be found here. In addition to this post from Esra Demir-Gürsel, the symposium includes contributions from Corina Heri, Vera Wriendt, Harriet Ní Chinnéide and Tobias Mortier, Betül Durmuş and Jens T. Theilan.
***
Preventing backsliding into authoritarianism and/or totalitarianism is regarded as the original purpose behind the European Convention on Human Rights (ECHR or the Convention) by a wide range of actors, including scholars, the organs of the Council of Europe (CoE), and the state parties to the Convention. Two implications are usually attached to this view: first, the jurisdiction of the European Court of Human Rights (ECtHR or the Court) beyond this original purpose is open to debate; second, any act, policy, or law that eliminates or abuses the checks and balances sustaining democracy is unacceptable under the Convention system.
The first implication is widely contested. The second implication, however, receives much less attention. It is true that the Court’s current failures to respond in a timely and rigorous manner to the widening authoritarian trends among the state parties are increasingly discussed in the literature and even acknowledged by the CoE insiders. Yet these failures are not usually seen as the result of choices made by the Court, but rather as a result of its lack of capacity.
In this blog post, I argue that the ECtHR is a conservative institution, even when confronted with authoritarian policies, practices, and laws dismantling the mechanisms of accountability. In what follows, I first explain how I use the term ‘conservative’ in this blog. I then address, respectively, how the Court’s conservatism features in its case law concerning earlier authoritarian policies and laws of the state parties, and how it appears in its approach to the more recent wave of authoritarianism among member states. Unlike today, the 1990s and 2000s represent a period in which the Court enjoyed broad support from states. Identifying conservatism in both periods suggests that it is more than a pragmatic device that the Court deploys only when it needs to shield itself from state criticism.
We are not accustomed to hearing discussions of the ECtHR as being ‘conservative’ or ‘progressive’ in relation to its case law addressing authoritarian policies, laws, and practices. These framings are more commonly applied, for instance, in cases concerning morality, religion, or climate change, if applied at all. More importantly, attributing anything negative to the ECtHR in terms of preventing autocracy is no easy task. How can a court with a legacy of extensive case law establishing principles and criteria for the proper governance of human rights, the rule of law, and democracy be considered conservative? And how can ‘the most effective human rights protection system’ be seen as anything less than progressive?
I do not use ‘conservatism’ here to refer solely to rulings shaped by the ECtHR’s deference to states or its judicial self-restraint. Nor do I use it to distinguish decisions favourable to applicants from those that are not. Instead, I use ‘conservative’ to denote an orientation toward maintaining the status quo and preserving the existing order with its established power structures, while avoiding structural change. By contrast, I use ‘progressive’ to describe an orientation that seeks structural transformation. Understood this way, it becomes easier to see the Court as a conservative actor, committed to preserving the status quo in Europe.
The Court’s preservationist orientation can already be traced to the intentions of the ECHR’s drafters. Andrew Moravcsik’s widely cited work on the origins of the Convention, for example, explains states’ willingness to bind themselves to an enforceable human rights regime through the ‘lock-in theory.’ According to this theory, states commit to international obligations when those arrangements help entrench existing political choices against potential future alternatives. In this context, Moravcsik argues that the states most receptive to binding international human rights commitments were those European democracies seeking protection against a perceived threat of ‘totalitarianism’ (i.e., communism).
Moravcsik’s explanation is thus limited to governments’ intentions to lock in liberal-democratic political arrangements against socialist or communist alternatives, focusing exclusively on state motivations. Titled The Conservative Human Rights Revolution – European Identity, Transnational Politics, and the Origins of the European Convention, Marco Duranti’s book expands and complicates this picture by examining the motivations of non-governmental actors. These include the Tories in the UK and far right and Catholic intellectuals in France, who were at the time more influential in shaping the ECHR system than the socialists of the period. Duranti shows that British Conservatives were not only concerned about a potential ‘totalitarian’ (i.e., communist) takeover in Europe but also viewed the then Labour government as steering the country toward ‘totalitarianism.’ French Catholic elites, on the other hand, played a decisive role in imagining a ‘supranational court’ that could fill the void left by the waning authority of the Catholic Church and serve as a counterweight to the powers of nation-states relying on their democratic majorities.
Duranti’s work thus suggests that the ECHR and the ECtHR were products of a desire to preserve existing power dynamics as much as to protect individuals from state overreach. More broadly, by bringing together actors from a wide spectrum of ideological orientations around a shared anti-communism, the drafting of the ECHR aligned them around a common dual aim: to safeguard existing political, economic and social power structures within individual states and across Europe, and to protect Europe’s image and place within the emerging post-war world order. In short, the ECHR was not designed to transform the economic, social, or political order in Europe, but rather to preserve it as it is.
Against this understanding of ‘conservatism,’ it becomes plausible that the Court may have earned its reputation as ‘the most effective’ not because of its progressive interpretations of human rights, but rather because of its loyalty to the existing European status quo. This is not to suggest that the Court must avoid any structural change within a member state. On the contrary, its judgments may indeed require significant reforms – so long as such changes do not destabilize the broader status quo in Europe. As an institution operating at the interface between the national and the regional, the Court’s conservatism is therefore primarily oriented toward maintaining stability in Europe and, when necessary to protect that stability, preserving the national status quo as well.
On the surface, it is admittedly difficult to characterise the Court’s early case law addressing authoritarian policies, practices, and laws as conservative. The ECHR played a pivotal role in establishing the principles of fair trial, judicial independence, the right to life, the prohibition of torture, and the freedoms of expression, assembly, and association – all of which serve as crucial safeguards against unaccountability of the ruler. Landmark cases, including those concerning the situation in Northern Ireland against the United Kingdom (e.g. see here), the Kurdish cases against Turkey involving gross human rights violations (e.g. see here), as well as the cases brought before the Court following the accession of the former communist regimes of Eastern Europe, are widely regarded as essential in guiding these states in the establishment of their democratic infrastructure.
Yet, adjectives used to describe the Court’s case law that develops principles and standards for democratic accountability, such as ‘landmark’ or even ‘groundbreaking,’ do not necessarily refer to rulings that challenge or overturn existing power structures. A judgment can be considered ‘groundbreaking’ without addressing the deeper structural issues underlying the rights violations, even if it pushes the boundaries of the law forward. In some cases, this may reflect the inherent limits of international human rights adjudication or the satisfaction with the technical and institutional responses of governments to findings of rights violations. In other cases, however, this may result from the Court selectively addressing certain complaints while declining to review others, deeming their adjudication ‘not necessary.’ For instance, in the cases concerning systematic human rights violations in the mid-1990s and 2000s against the Kurds, the Court neither found it necessary to examine the applicants’ complaints about discrimination under Article 14 nor their allegations regarding abuse of power under Article 18 of the ECHR. Some rights violations, however, are mere symptoms of structural inequalities and injustices. For instance, a finding of a violation of Article 14 or Article 18 in cases against Turkey could help expose the structural dimensions of state violence and the broader crackdown on the Kurds. It could highlight discriminatory treatment against them by the judiciary, the military, the police, various administrative bodies, and even within legislation, while also destabilizing the terrorism and national security frames overwhelmingly relied upon by the Turkish Government to justify its interferences with ECHR rights.
There may, of course, be other reasons for ‘allegation picking’ by the ECtHR, including backlog management or a desire to avoid encroaching on state sovereignty. What is particularly crucial in the Kurdish cases from the 1990s and early 2000s, however, is that they were reviewed by the Court during ‘the peak’ of its authority and oversight. This implies that even at that high point the Court was already setting limits on its own powers. The same point applies to the Court’s approach in cases against the United Kingdom concerning its practices in Northern Ireland. This indicates that the factors restraining the Court from issuing rulings that might lead to the destabilization of the status quo in these states by requiring structural changes cannot be explained solely by assessing how fragile the Court’s authority and legitimacy vis-à-vis the states are at any given moment.
The strong association of the Convention system with the protection of the institutions of liberal democracy has led to disappointments when the Court failed to engage with applications that sought to alert it to the widening authoritarian trends across member states starting in the 2010s. The Court’s responses to such cases were even criticized from within the Court. Judge Kūris, for instance, criticized the majority in a case concerning the arrest and detention of journalists in Turkey for disregarding evidence that would be sufficient to persuade any ‘objective observer,’ except the Court itself, that these detentions were politically motivated, warning of the sense of injustice such decisions create. In a case against Russia concluded after its expulsion, Judge Pavlov questioned whether the Court took ‘proper notice of the trajectory followed by the Russian Federation.’ He noted:
Presumably, it makes little sense, from a prophylactic perspective, to focus on the health of individual trees if a fire is raging in the forest. Worse still, were the Court to adopt such an approach, might it be seen as providing false assurances about the state of the forest as a whole?
As powerfully conveyed in this question, what has been happening in Europe – most notably since the 2008 global financial crisis – cannot be reduced to individual right violations. However, since then, by not exercising its powers fully, by failing to respond in a timely manner, and by engaging with the underlying problems of rights violations at best minimally, the Court has contributed to the normalization of what was, in fact, quite extraordinary.
The Court’s rejection of cases brought against Turkey and Hungary for non-exhaustion of domestic remedies – on the ground that there was no remedy, or no effective remedy, to exhaust – may be the clearest example of such normalization, conveying the message that ‘there is nothing extraordinary here that would justify departing from the rule.’ In contrast, its exceptional readiness to adopt a more relaxed approach to admissibility in certain cases against Poland indicates that the potential for a destabilizing effect or the absence of such a risk may underlie the outcomes it reaches. Two points appear to have been decisive in the Polish cases in this vein. First, the Polish Constitutional Court itself raised concerns about executive interference in its structure, warning that such actions undermined its independence. As a result, the Court’s judgments have tended to reinforce the position of the national courts rather than challenge them. Second, the extent of interventions affecting the independent functioning of the judiciary in Poland was relatively limited, whereas such interventions were more systemic and widespread in Turkey and Hungary. Unlike in the Polish cases, it was more difficult for the Court to rule against the effectiveness of domestic remedies in Hungary and Turkey without indirectly questioning the independence of the entire judiciary or significant portions of it. Moreover, taking a strong stance against Turkey could have a destabilizing effect by jeopardizing the ‘refugee deal’ made between Turkey and the European Union to prevent an unwanted ‘flow’ of Syrian refugees into Europe.
The way certain applications against Russia were handled by the Court before the country’s expulsion from the CoE provides an even more striking example of its silence in the face of entrenching authoritarianism. For instance, one of the most crucial tools used to silence human rights NGOs was the Foreign Agent Law, which entered into force in 2012. Dozens of NGOs, which were designated as ‘foreign agents’ (i.e., funded by ‘foreign sources’ and engaging in ‘political activity’), brought a case to the Court in 2013. Not only did it take as long as nine years until the Court concluded this case, but also it did so only after the expulsion of Russia in 2022.
Some attributed the length of the proceedings in such a crucial case to the Court’s limited resources. Others pointed to the ECtHR judges’ detachment from realities on the ground. A former Council of Europe Commissioner for Human Rights, for instance, recently wrote that the president of the ECtHR (without specifying which president) was not even aware that human rights NGOs bringing cases before the Court were being shut down under the very act whose compatibility with the Convention had been pending before the Court for a long time. Others, however, pointed out how much criticism the act had received from other Council of Europe institutions and beyond, which makes it hardly possible that the judges were not aware of what was happening in Russia. They raised questions about a possible link between the Court’s prolonged silence on certain cases and the diplomatic efforts of the Council of Europe led by the then Secretary General of the Council of Europe to prevent Russia’s potential withdrawal from the organisation (see here and here).
Since Russia’s expulsion from the Council of Europe, however, there appears to be a tangible change in the way the Court handles cases against Russia. From finding violations of multiple rights due to ‘an ongoing administrative practice of restricting the rights and freedoms of the “Ukrainian political prisoners” (…) for an ulterior purpose’ to adopting a broader conception of jurisdiction, the Court’s post-expulsion case law exhibits more rigorous judicial supervision.
This opening of the Court after the expulsion of Russia has been interpreted as a result of it being ‘freed … to do what it thought was right without second-guessing the reaction of the respondent state or calculating the consequences of its judgments on the whole system’ [emphasis added]. One implication of this is that the ECHR system is not merely a human rights protection system. As the Preamble of the ECHR suggests, ‘the maintenance and further realisation of Human Rights and Fundamental Freedoms’ is one of the ‘methods’ for ensuring the unity of the Council of Europe’s member states. The preservation of this unity is a task assigned to the ECtHR, as the other organs of the Council of Europe, which may at times require the Court to adopt expansive interpretations of rights in line with the developments in state parties (so called ‘European consensus’), and at other times to give way to methods other than the protection of rights.
Today, the history of the ECHR, and of the Council of Europe more broadly, is commonly recalled through the discourse of ‘never again’ (see here, and here). Although the Court has often fallen short of identifying or even showing interest in the structural issues behind state violence or crackdowns on ethnic and political minorities in the cases brought before it, many of us who closely observe Strasbourg continued to hold on to the belief that it would at least stand firm against a real-time strengthening of such authoritarian policies and practices.
Over the past decade, however, we have witnessed the Court’s failures to respond to the increasingly widening and entrenching authoritarianism, despite being the first institution alerted by the flow of applications intended to trigger its alarm-bell function. This makes me ask what is that it should be ‘never again.’ The latest instance in which this discourse has been mobilized within the Council of Europe context indicate not only that the threshold for invoking it is exceptionally high, as in the case of Russia’s war against another state party, but also that authoritarianism per se is not, in itself, perceived as threatening the European status quo.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
