Avoiding Too Little Too Late

On 11^th February 2025, a Chamber of the European Court of Human Rights (ECtHR) found that the criminal and administrative prosecution of individuals and media organisations for supposedly “discrediting” Russian military and spreading “fake news” about the Russian Federation’s actions in Ukraine constituted a violation of Articles 3, 5 §§ 1, 3 and 4, 8, 10 and 34 of the European Convention on Human Rights (ECHR). The judgment in Novaya Gazeta v. Russia is one of hundreds of high-profile cases delivered before and after the expulsion of the respondent State from the Council of Europe in March 2022. It highlights the at first slow and then rapid erosion of democracy and the rule of law in Russia, recognizable to readers of judgments of the European Court of Human Rights (ECtHR), which culminated in the clamp down on any criticism of the war of aggression against Ukraine at issue in that case.

This piece focuses not on that judgment, which was delivered in an uncharacteristically short timeframe compared to previous similar Russian cases, but on the questions posed by Judge Pavli in his concurring opinion. What are the lessons to be learned by the Court both from Russia’s gradual, but evident, authoritarian turn and from the ECtHR’s response to that trajectory? What, more broadly, do such cases tell us about the primary object(s) and purpose(s) of the living instrument as it marks its 75^th anniversary?

The first question was touched on in a recent symposium on EJIL: Talk! about Russia, the Council of Europe and the ECHR (see here). There, Bates, Dzehtsiarou and Forde identified a failure by the now expelled Member State to comply in good faith with its obligations under the Council of Europe (CoE) Statute and the ECHR, a failure by the Committee of Ministers (CM) to effectively hold Russia to account for its transgressions and a third failure of the CoE system more generally – including the ECtHR and monitoring mechanisms – to effectuate compliance with CoE standards despite the obvious pattern of democratic decay.

This piece speaks principally to the latter – the procedures and tools available to the Court in the future to respond to what one sees in many cases against Russia: the gradual suffocation through a thousand legal regulations devised and tightened over time to control every inch of the political space and much of the personal space of ordinary citizens. The hope is that constructive engagement with how the Russian docket was managed will ensure that history does not repeat itself when it comes to pending and future cases against other CoE States where there are signs of the rise or tightened grip of authoritarian rule. After all, Russia may be particular, but it is not unique. Over the last two decades, Europe has witnessed different variations of illiberal democracy and authoritarian forms of government, rolled out at different speeds but usually achieved by the use of political and very often legal means to dismantle democratic institutions and undermine human rights.

Before we explore the tools at the Court’s disposal, a more general comment is warranted. Political scientists and constitutional scholars have difficulties agreeing on the precise norms and institutions which constitutional democracies must possess. After all, the institutional set up of such democracies can vary considerably. How then should the ECtHR define the core rights associated with effective, constitutional democracy and a functioning rule of law, violations of which should trigger more rapid recourse to the procedural tools at its disposal? This is not an easy question. The more the Court engages in a generalised assessment of the state of democracy in a given State, the more it exposes itself to the criticism of being politicised, with the consequent risk of lost authority and legitimacy. In addition, preferential or priority treatment of some rights and some cases over others inevitably involves a degree of discretion and with that comes further possible criticism.

However, the exercise of that discretion and recourse to the procedural tools discussed below has to be guided by an understanding of the general context in the respondent State in question and not just by the facts of an individual case. Legitimate concerns about how the Court might act could be assuaged, firstly, by making such decisions sparingly and in a manner which reflects a sound understanding of the key pillars of an effective, functioning democracy, namely the protection of political opposition, a free and responsible press, fair elections, judicial independence and, more generally, existential checks on majoritarian power. Secondly, the Court would not be making its assessments in isolation, but would rely on the work of other CoE institutions and competent external bodies, including those within the EU.

A final caveat relates to the fact that we should be realistic about the effect of the Court enhancing its efforts to respond to authoritarian turns. As we know, there is nothing automatic when it comes to the enforcement of the Court’s judgments. They may have little effect unless other CoE institutions follow up. The role which the Court can play is that of an early warning system, as the drafters and early signatory States intended.

With these caveats in mind, we turn to the four main procedural tools or paths which we consider could play a central role in the Court’s response to rule of law and democratic governance decline: interim measures (1), the pilot judgment procedure (2), case management and, in particular, the priority policy (3) and greater involvement of the CM (4). With reference to past experience with Russian, Turkish and Polish cases, we highlight the current docket in relation to Georgia and Slovakia to illustrate what role those tools could better play.

Interim measures

According to the Court’s Practice Direction (PD) on interim measures, updated in 2024 following sustained attempts in the United Kingdom in particular to undermine the Court’s authority to indicate Rule 39 orders (see here), interim measures are exceptional, can be issued at a party’s request or by the Court of its own motion and are measures applied when “necessary in the interests of the parties or the proper conduct of the proceedings”. The PD specifies that, “in most cases”, the evidence available should point to a clearly arguable case of a genuine threat to life and limb, with the ensuing real risk of grave harm in breach of the core provisions of the Convention. Although the core provisions of the Convention are not specified, one can surmise that Articles 2, 3 and 5 are intended. The amended Rules of Court and accompanying PD sought to bring greater clarity and transparency regarding when interim measures may be indicated and reviewed, as well as the threshold to be reached in relation to their request and application.

But what about requests for interim measures which do not concern core provisions and which fall outside the “most cases” category? There are previous examples of Rule 39 orders being granted in such cases, whether in relation to the war in Ukraine, systemic rule of law problems in Poland, previous legislative measures designed to muzzle civil society in Russia and later the legislative measures which were the subject of Novaya Gazeta, indicated on 10^th March 2022, just after the invasion of Ukraine but before Russia’s expulsion, or, more recently, demonstration dispersals in Serbia. Such examples point to the potential of a Rule 39 decision to respond in a timely manner to encroachments on key democratic freedoms. Other exceptional Rule 39 orders point to the risks involved. In one case, a Rule 39 order indicated in a civil dispute concerning the shares of a broadcasting company in Georgia was later discontinued after the complaints were found to be inadmissible.

The Rules of Court and PD now provide for a tighter and clearer regime than previously. However, they do not, it appears to us, exclude the application of interim measures in all non-core cases in which the nature, number and overall pattern of applications being lodged at the Court suggest systemic erosion of democracy and the rule of law in the respondent State. Indeed, the amended Rules provide for the possibility of the referral of Rule 39 requests by a duty judge to collegiate judicial formations, primarily Chambers, and for a new legal basis for the President to indicate measures where necessary. Where standard questions arise in relation to whether a request for an interim measure is “out of scope”, this presumably can be dealt with by a duty judge, working with the competent administrative team. However, where, as indicated previously, the nature, number and overall pattern of complaints in relation to a given respondent State may point in a certain direction, the question of what the scope of Rule 39 now is may be crucial for the practical, effective and timely assessment of Convention compliance. Such non-core Rule 39 instances may be truly exceptional, but that does not mean that they should be formalistically reduced to nought. This is where Chambers and the President should play a role, if not when a request is first made, given time constraints, then when a request for reconsideration is made or even of the Court’s own motion. It is noteworthy that the Chamber decision to indicate a Rule 39 order in Novaya Gazeta, a case in which Article 10 was central, referenced not only the interests of the parties and the proper conduct of proceedings but also “the exceptional context in which the request was made” (see here)

Another precedent is Ecodefence and Others v. Russia, a case on the concrete application of Russia’s Foreign Agents Law. Lodged in 2013 and 2014, the applications led to a judgment in 2022 in which the Court found multiple violations of the Convention, including Article 18 (see here, on the overlong length of proceedings, and here for follow up cases). In 2021, the Court had issued a Rule 39 order in relation to International Memorial. While neither the interim measure nor the final judgment prevented the liquidation of that and other organisations in the Russian Federation, few would contest that the measure, although not addressing core Convention provisions and classic life or limb situations, was fully justified (albeit too late in the day). The fact that a respondent State may not respect an interim measure cannot be the decisive issue. Where the purpose of the acts whose Convention compliance is challenged is to stifle political opposition and to prevent even the possibility of legal challenges, other issues are at play. Sounding the alarm bell with a Rule 39 order has intrinsic value. Indeed, it cannot be forgotten that in States experiencing an authoritarian turn, the very act of lodging a request may carry considerable risk.

These reflections in relation to the past could inform the Court’s response to situations in the present and the future. It appears, for example, that the Russian playbook of gradual suffocation is being rolled out in Georgia with alarming speed (see here for an overview and here and here in this blog). Applications lodged at the ECtHR reflect this (see here for a case already communicated on the application of the Georgian Law on Transparency of Foreign Influence). The question is now whether the relevant judicial formations will be able to respond effectively and in a timely fashion to those complaints using, where necessary, the tools provided by the Rules of Court to ensure that the object and purpose of the Convention in such situations is not stymied. Until now, requests have been rejected as out of scope. The point here is not to suggest the encumbering of Chambers and the President with numerous Rule 39 requests. However, where principled legal questions arise in relation to new requests and new patterns of State and legislative conduct going to the heart of democracy and the rule of law, those questions need to be examined at an enhanced judicial level.

Applicants, lawyers and civil society must of course not forget the nature of contentious legal proceedings. It is not for a court to make an applicant’s case for them. If insufficient evidence is provided of the phenomena and risks faced by the subject of a request, a Rule 39 order cannot be indicated. However, it would be strange if insistent hand-wringing in Europe about the parlous state of the rule of law in the US and the inability or unwillingness of judges there to respond effectively to it were not met with greater realization of the dangers of judicial silence or sluggishness on this side of the Atlantic in relation to not dissimilar phenomena occurring right here, right now. Given the various metaphors used to describe democratic erosion – the slow plucking of a chicken or the gentle boiling of a frog to name but two (see here for a recent call to arms by Susanne Baer) – an excessively formalistic and narrow approach is what risks the wood not being seen because of excessive focus on individual trees. In addition, in some States the temperature is being turned up fast. Currently pending before the CJEU is an infringement action in relation to the 2023 Hungarian law on the protection of national sovereignty. In that case the CJEU granted the Commission’s request for an expedited procedure because it considered that “the present case concerns the constitutional relations between the European Union and its Member States in the fundamental and sensitive area of public and democratic life” (see here). But the CJEU cannot tackle the application in Georgia of similar legislation; that task falls to the CoE and its court.

Pilot judgment procedure

Initially a product of case-law, the conditions for the initiation of a pilot judgment procedure are now outlined in Article 61 of the Rules of Court and a PD. Such a procedure may be initiated by the Court of its own motion or at the request of one or both parties. If a pilot judgment is adopted it identifies both the nature of the structural or systemic problem or other dysfunction established as well as the type of remedial measures which the Contracting Party concerned is required to take (Rule 61 §§ 2 and 3). Crucially, the procedure may be initiated where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications (Rule 61 § 1). In other words, pilot judgments can be both reactive (following the buildup of cases) or proactive (preceding such a buildup).

As is well-known, from 2018 onwards, the Court saw over 500 individual applications lodged in response to the judicial reforms rolled out by the previous Polish administration. The applicants in these cases were individuals and companies who claimed, inter alia, that their cases at national level had not been heard by independent and impartial tribunals established by law or judges affected in various ways by the said reforms, who claimed violations of Articles 6, 8, 10 and 18 of the Convention. Several high-profile judgments against Poland have since been handed down in such judicial independence cases. In 2023, in Walęsa, after reiterating the systemic problems already highlighted in previous judgments, the Court found violations of Articles 6 § 1 and 8. The Court held that “given the rapid and continued increase in the number of applications concerning the independence of the judiciary in Poland […] over the past eighteen months and the gravity of the situation, commonly referred to as ‘the rule-of-law crisis’, as a result of which numerous as-yet unidentified individuals may be adversely affected, the Court considers that the systemic problems identified above may worsen quickly and that they call for urgent remedial measures” (see here).

Before rewinding and reviewing what preceded this Polish pilot judgment let’s make two things clear. Firstly, Walęsa was a milestone in the treatment of the Polish rule of law crisis. It and other ECtHR judgments have dovetailed with the rulings of the CJEU, with both courts feeding into the construction of a European judicial rampart against rule of law decline. Secondly, hindsight is a great thing. But it is usually an unfair gauge by which to judge past action.

Our purpose, however, is to consider the lessons which could be learned from that hindsight for the future. Firstly, the ECtHR was not acting in isolation. Polish courts had been seized of the questions which led to the Convention complaints for many years prior to applications being lodged at the Court. That’s what the principle of exhaustion requires. This meant that the Polish context and patterns were becoming clear well before the first applications arrived in 2018. Secondly, the Court of Justice of the European Union (CJEU) had been engaged with the Hungarian and Polish crisis for many years prior to the ECHR applications being lodged and first resolved, acting both via preliminary rulings and infringement actions. Both the Venice Commission and EU Rule of Law Reports had also been detailing the different corrosive measures being rolled out in both States as well as their effects. Once again, this ensured that the Polish context and pattern were relatively clear relatively quickly. To some extent, it should be recognized, the ECtHR was jolted into more efficient action by external criticism of its sluggishness (see Lawson at p.12).

The second issue worth highlighting is the importance and the difficulties in the timing of the judgments. It’s not possible to provide here a detailed chronology of when the various cases in which judgments were delivered prior to Walesa were lodged, communicated and decided between 2019 and 2024. The effect of the pilot judgment was to adjourn similar pending cases for the immediate future. However, a quick overview of those preceding cases makes a few points noticeable. The judgment in the only case relinquished to the Grand Chamber was handed down after a related case, albeit with some distinct characteristics, was decided by a Chamber. If the purpose of relinquishment was for the Court’s most solemn judicial formation to set the judicial terms for how systemic rule of law backsliding in Poland was going to be handled, this was not achieved. The chronology meant that some key legal issues in the Polish rule of law cases had already been decided by the time the Grand Chamber handed down its judgment. Another weakness lay in the fact that the relinquished case did not give as much scope as other pending Polish cases, simultaneously or later resolved at Chamber level. Cases were communicated individually and, in general, dealt with individually, whenever drafts became available for deliberations. Article 18 complaints featured quickly in the Polish applications, but an Article 18 violation only issued in 2022 (see here), by which time such a violation had already been found in a judicial independence context in a Bulgarian case (see here). In addition, in the pilot judgment, the Court found that there was no need to examine the Article 18 complaint as it considered that it had already examined the main legal questions raised by the application. Given the terms of the pilot judgment and the purpose and effect of this special procedure, this was hardly a convincing conclusion.

A different approach, not involving the pilot judgment procedure, was taken in a leading judgment relevant for a set of over 8,000 Turkish applications relating to convictions following the attempted coup d’État which were based on Bylock evidence. That procedure had not been initiated by the Chamber which had instead relinquished the leading case to the Grand Chamber. The latter went on to identify the systemic problems to which its judgment pointed, made general indications regarding the need for Turkish cooperation in the subsequent phase and grouped the communication of similar applications into batches of thousands, with a view to more efficient and expeditious processing (see here). The Turkish situation is particular, given that, following 2016, there was a mass influx of often similar cases. However, it is worth considering whether the pilot judgment procedure could not also be applied more in relation to Türkiye, which has over 21,000 applications pending and where concerns about delay are recurrent.

The “benefit of hindsight” point which might be valuable for the future – and we repeat, our purpose is not to call into question the work of the judicial formations and registry staff involved in previous cases – is whether the Court’s approach could not be adjusted somewhat in future in order to provide a better forum to approach systemic rule of law backsliding issues, more timely assessments and quicker recourse to the pilot judgment procedure. Before the latter is initiated the Court has to seek the views of the parties on whether the application under examination results from the existence of such a problem or dysfunction in the Contracting State concerned and on the suitability of processing the application in accordance with that procedure. Where the context, patterns and pending applications are pointing to possible rule of law and democratic governance problems of a particular nature and scale, why not seek those views at the outset, on a precautionary basis, so that if the judicial formation decides at a later stage to have recourse to the procedure, it can do so? Or why not initiate it in one of the earlier cases, given that the Rules of Court provide for the procedure being applied for prospective purposes? In relation to Poland, the writing was on the wall well before the 18 months preceding its application in the Walesa judgment in November 2023. Of course, the ECtHR has to navigate difficult terrain. An excessively heavy judicial hand may not assist in the search elsewhere for political and democratic solutions to the problems which are at the origin of any given dysfunction. However, the point here is that a more rapid, proactive and coordinated approach, based on lessons learned in the past, might be beneficial in future.

Case management

Which brings us to related questions of case management. Using particular tools to address democratic backsliding and particularly serious threats to the rule of law, inevitably entails focusing scarce resources on some cases to the possible detriment of others. How does a Court with 46 Judges, 60,000 plus applications, a relatively small number of permanent registry staff qualified to work on (Grand) Chamber cases, a constantly rotating set of Section Presidents and Presidents, against a background of constant political firefighting, and a modest budget, which had been frozen for several years, manage its caseload?

Answers to this question will vary; with the likelihood of some commentators being highly critical of how the ECtHR has performed. We take a more constructive line, born no doubt of institutional loyalty but also of objective experience, having seen first-hand the implementation of new procedures and their impact over the last decade. Once the Protocol n° 14 mechanisms were in place to ensure that the Court could bring down the overall number of applications and deal more expeditiously with manifestly inadmissible applications, a lot has been done in recent years to try to respond more quickly at Chamber level to priority and what were christened “impact” cases. Committees now deal with repetitive and less complex cases. The Single Judge and WECL fast-track procedures (see an explanation at p.5 of the 2023 annual report here) are far from perfect. Mistakes can be made. However, those procedures are essential if the Court is to tackle fundamental issues of rule of law and democratic governance, as well as the numerous divisive issues on its docket, ranging from migration, the rights of sexual minorities or climate change, which themselves reflect the present-day realities to which the living instrument also has to respond.

In recent years, the Court has altered its internal governance structures, so that Section Presidents now serve two, instead of the previous three, years. For almost nine years all Section Presidents have only served one two-year term, unless elected Vice-President. The non-renewable nine-year judicial mandate of ECtHR judges has had the advantage of removing the risk of political influence which renewal could have entailed. But it has also given rise to shorter terms for Court Presidents. These two factors are relevant because they can and/or do affect case management.

The judicial decision to engage, or not, certain procedural tools which can address systemic problems is a decision made early on in the life of a case, before a full exchange of views, and normally without the input of a judicial formation. The potentially complex character of those decisions, requiring a good understanding of the context in the respondent State, in addition to the legal questions raised in the pending case, and an assessment of how the case could develop, places a burden on various shoulders, but particularly on those of the presiding judge, rapporteur and national judge. We can testify to the occasions when following the further development of a case, at the point of rendering a judgment, we have felt that proceedings could have been handled differently at the early stages. We don’t seek to remove ourselves from any critical assessment. There are no simple answers to the substantial challenges involved. Taking cases out of the standard flow disrupts the case management process, and involving more judges in Rule 39 requests, or giving priority to one case over another, takes up more judicial time and risks diminishing the greater efficiency which the Court has been seeking to achieve in recent years.

Of course, the Court is blessed with case lawyers and Section Registrars, who play a crucial role in relation to case management. Another essential role can be played by the national judge. However, case management cannot be viewed in purely administrative or national terms. The former risks an excessively managerial approach to issues which can have profound legal and judicial consequences and the latter risks an excessively narrow, national and even subjective focus on issues in relation to which objectivity and distance are necessary. National judges play a key role in the Convention system, as evidenced by the fact that their presence is required when cases are deliberated at Chamber and Grand Chamber level. However, the delicacy of their position is highlighted by the fact that both the Convention and the Rules of Court preclude the involvement of national judges in relation to Single Judge cases. Their involvement in the early stages of processing a case must be approached with care, by national judges themselves and by the other actors involved.

A more detailed study of the impact of the “impact strategy” (see here), launched in 2021 to ensure a shift from a quantitative to a qualitative focus on case management and, concretely, that cases like Ecodefence would not languish for so long, is beyond the scope of this piece. The point here is that giving priority to a case, particularly on the grounds that it suggests systemic issues is a very important case management tool in the procedural arsenal at the Court’s disposal. It allows the Court to limit the time between the lodging of an application and the final judgment and may provide the focus necessary for other tools, such as the pilot judgment procedure or relinquishment to the Grand Chamber, to be appropriately considered.

There is evidence that in relation to some States, like France, key Chamber level cases are being dealt with much more quickly than in the past. Another positive example relates to interstate cases. Those against Russia in relation to the invasion of Ukraine were grouped and advanced much more quickly than previous similar cases introduced by Georgia. The key factor in both regards is better case management. To stave off the critics, who will rightly point out that the Court often fails its own Article 6 test in terms of length of proceedings, one should quickly add again that there is always room for improvement. But the math speak for themselves: there is only so much budget, so many lawyers qualified to work on (Grand) Chamber cases, so many Judges to act as rapporteurs and so many hours available for quality deliberations of the kind that such cases require. Given these constraints, it is key how and where the Court identifies its purpose and priorities and when it decides to deploy the tools at its disposal.

In relation to the types of rule of law and democratic governance issues which were the subject of Ecodefence, the Court could be quicker to identify the gradual or rapid patterns at State level; quicker, as indicated above, to reach for the pilot judgment procedure, which could be rendered procedurally lighter while respecting the adversarial nature of proceedings; quicker to communicate cases as well as finer and more detailed in the questions communicated and quicker to get drafts into judicial deliberations. Where there are inefficiencies and delays in the life cycle of a case, the risk is that time pressure is often brought to bear at the very stage when it should be absent, namely in relation to judicial deliberations and completion. The nimbler approach outlined above need not be the stuff of dreams. It is dependent on Section Registrars and Section Presidents being sufficiently informed about their docket and understanding the particularities of States within their Sections, of national judges assisting in full cognizance of their particular role and the limits placed therein by the Convention and the Rules of Court, and on judges, whether rapporteurs or members of the designated judicial formation, and registry lawyers understanding that time may really be of the essence.

The extraordinary budgetary neglect from which the Court suffered for many years explains many things. In addition, where a State becomes quickly problematic, it may be difficult to recruit and train staff quickly enough to respond to an upsurge in pending applications and a change in their nature. However, silence or sluggishness cannot all be attributed to budget and personnel restrictions. The Court has proved itself to be nimble in the past and it should be capable of nimbleness now. It is welcome news that the incumbent President has indicated that continued efficiency is at the heart of his mandate (see here). Where resources go depends on the response to the fundamental question of the object and purpose of the Convention system in today’s Europe. As the Court itself has recognised, where the rule of law and democracy are eroded, the conditions for that system to function effectively at national level are no longer present. Logically, this means that a key priority for the Court must be to prevent such erosion from consolidating.

In recent years, the Slovak docket of the Court has shifted, reflecting the concerns expressed in Venice Commission and EU Rule of Law Reports as well as in the European Parliament (see, for example here). One of the striking features of the Slovak situation is that previous judgments of the Court in relation to an absence of due process in a number of high-profile cases were subsequently used at national level to justify legislative amendments widely criticized by the EU and the Venice Commission (see here). This is what one could call rule of law quicksand, whereby national and European judicial attempts to guarantee respect for the rule of law are turned on their head to justify further national measures whose object or effect are in fact to undermine it. The Court has to constantly navigate such quicksand, whose texture and nature changes per State or per region. Slovakia also demonstrates signs of the contagious nature of decline. It is suggested that one of the principal ways to manage such situations is to group treatment of all the relevant cases instead of issuing piecemeal Committee decisions and judgments. Cases need to be seen together for the bigger picture – the woods as distinct from the trees – to be clear. These suggestions in relation to case management should not be read as a position on the outcome in any given case. It is for the applicant(s) and the respondent State(s) to discharge the relevant burden and standards of proof and for the Court to decide on the basis of the evidence before it whether in fact and law a violation has occurred. However, that the Convention system is premised on individual justice should not, we repeat, lead the Court to overlook context, patterns and the overall picture in its approach to case management. At present the Grand Chamber is considering, following referral, a Georgian case relating to dispersal of a large-scale demonstration in 2019. It remains to be seen what contribution that one judgment will make (see here for the Chamber judgment). Of greater importance from the perspective of countering democratic erosion, one would imagine, is how the Court will handle the influx of cases responding to the application of legislation and restrictive measures rolled out since then.

Committee of Ministers

 Which brings us to our last point. At the 4^th Summit of the Council of Europe in 2023, the 46 Member States of the Council of Europe emphasised their “deep and abiding commitment to the European Convention on Human Rights and the European Court of Human Rights as the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems” (see here).

It is often repeated that the Convention is a system based on shared responsibility but perhaps too often overlooked in national capitals that the primary responsibility for making the system work, within individual States but also across the Convention legal space, depends on national democratic and judicial authorities. At CoE level, national parliamentary and executive authorities are represented in the Parliamentary Assembly of the Council of Europe (PACE) and in the CM. Those bodies also bear the primary responsibility referred to. Indeed, it is in those two fora that systemic and structural rule of law and democratic governance issues can best be tackled once identified.

The discussion in the EJIL:Talk! Symposium referenced previously highlighted the key role which the CM can and should play when Convention disengagement manifests itself at national level and/or when authoritarian legalism spreads. Three points are worth considering.

Firstly, in the Reykjavik appendix on the Convention system the Heads of State and Government called for a strengthened institutional dialogue between the ECtHR and the CM on “general issues related to the execution of judgments”. It is not of course for the Court to trespass into the execution role of the CM, and vice versa. However, this strengthened dialogue could entail the communication to the CM of early signs, flowing from a judgment or judgments in relation to a given State, indicative of systemic or structural issues, particularly if the rule of law or democratic governance issues are at stake.

Secondly, the Rules of Court already provide for the possibility of the provision of immediate notice of interim measures to the CM in certain cases. It would seem logical that, in particular, but not only, when provision of notice of a Rule 39 order is given, the immediate duty to police respect by a respondent State for that measure falls also to the CM. The involvement of the CM would be one of the best ways to ensure that respondent governments do not question the authority of the Court to issue interim measures when, sooner or later, they may be the addressee of an interim measure themselves. In addition, if a Rule 39 order is ignored, the Court will have to examine whether the State in question has failed to fulfil its obligations under Article 34. This is done at a later stage in the proceedings, when the admissibility and merits of the relevant application are considered. The CM, which has a different function, can act earlier when the Court cannot yet do so.

Lastly, as Judges and Court Presidents regularly explain, when the authority of the Court is attacked or undermined, they are ill-placed to respond in the media. Engaging in and with the political domain can carry tremendous risk for judges. That job falls primarily to the CM, the PACE and the Secretary General of the CoE. In the past, too much silence has met attempts to politicise the decisions of the Court, denigrate the independence and impartiality of sitting Judges and ultimately sap the Court’s authority in the eyes of citizens and stakeholders. How the democratic bodies in the CoE seek to protect respect for the rule of law – which respect extends to the ECtHR itself – cannot depend on the political calculus of a given day, a given case, a given State or a given State’s position on a given case.

The Court was fortunate to muster political and budgetary support prior to and at the 4^th Summit. However, in the present climate, the fine words of the Declaration and annex and the responsibility which accompanies them should not be quietly jettisoned. Avoiding that will depend on the Court itself and on the efficiency, quality and rigour of its decision-making, but it will also depend on its interlocutors at national and European level, not least the representative bodies within the CoE.

Conclusions

It may seem counterintuitive, in the political chaos and noise of 2025, and in the face of widespread disengagement with international law and the different components of the post-war rules-based order, to turn to the nitty gritty of case management, interim measures and procedures. However, the best defense which international courts can mount at present is to do well that for which they were established. Over the years the Court has developed and now has at its disposal tools which allow it to engage effectively and efficiently with democratic and rule of law decline. Those tools have, in relation to certain cases or groups of cases, produced results. The Court should learn lessons from what has worked in the past and seek to avoid undue passage of time which would be a gift to those who seek to consolidate that decline.

Readers whose field of expertise and academic attention lie outside the democratic governance and rule of law domains addressed in this piece, whether in migration or the other present-day social realities to which the living instrument also has to respond, may feel unhappy with our proposal to concentrate time and tools on the former issues. However, as pointed out by Lawson, cited above, and others, European judicial intervention is a scarce commodity. It should be applied where and when it is most needed. Without free, fair and frequent elections, freedom of expression, associational autonomy and a functioning democratic space, instruments such as the ECHR cannot function effectively, such that they will be incapable of responding to those other, important human rights concerns.

As a “pick and mix” approach to compliance with international legal obligations and respect for the rule of law takes hold in several European States, the Court needs to demonstrate poise, managing both woods and trees and focusing on the central purpose and object of the Convention system.