Explaining Conflicting Tendencies of Politicisation and Judicialisation: The Case of the ECtHR

Recent debates around the ECtHR simultaneously feature governments’ efforts at constraining the Court and governments’ acceptance of the Court’s engagement meant to constrain governments. The interplay between the two tendencies shapes relevant structures and procedures. The overall direction of the system depends on which of the two tendencies prevails, i.e. which attracts critical body of support among states. The purpose of this paper is three-fold: First, we map the means by which states, having chosen to stay part of the system despite dissatisfaction with the ECtHR, seek to constrain it. Here we focus on budgetary constraints, politicization of judicial selection process, demand for deference to national courts, refusal to implement judgments. Second, we map the measures exemplifying the opposite trend. Paradoxically, instead of attacking the ECtHR for prescriptive judgments, most governments have embraced its expanded remedial approach. Instead of fully exploiting national selection procedures to pick deferential candidates, governments did not only accept increased scrutiny by the PACE, but also accepted the screening panel, composed of national and former international judges, limiting their ability to influence the ECtHR’s composition. Importantly, in assessing actual scope of judicialization, we intend to see how formal commitments and supportive or hostile rhetoric translate in practice. Here we also use the CJEU as a point of comparison to better clarify some of the limitations of judicialization in the ECtHR context, including in terms of the legal status and powers of the screening panel. This leads us to our third and final goal of trying to explain these conflicting tendencies by reference to exit and voice framework. This involves explaining why states opt for structures and procedures meant to constrain them. We will confront our theoretical expectations with the reasons which various stakeholders invoke as rationales for accepting constraining structure and procedures.