The Renegade, the Silent and the Loyal – Human Rights Remedies in Poland, Hungary and Slovenia

The paper examines the (future) evolution of ECtHR remedies and inspects the role of different stakeholders in this regard. Accordingly, it identifies and compares remedial practices of Poland, Hungary and Slovenia in the process of compliance with adverse rulings of the European Court of Human Rights (ECtHR). In particular, it looks into how the three states–two of which have recently turned illiberal–have been interpreting their human rights obligations through remedies they report to the ECtHR and investigates how the institution has shaped their choice. Requiring states to remedy their violations is thought to encourage respect for human rights, particularly because remedies need not only redress states’ past wrongdoings but also change their future behaviour. Increasingly, the ECtHR has been barring states from freely choosing their remedies and has spelt out their specific course more often. Limitations to states’ subsidiarity-granted freedom reflect further in compliance supervision by the ECtHR’s peerreview body of state representatives, the Committee of Ministers. If the Court has not done so, the Committee interprets the rulings and/or negotiates with states adequate remedies. Yet, even if we can imagine an ideal outcome or course of this process, their final adoption ultimately lies with states. This may induce a race to the bottom between Committee and state suggestions, where–irrespective of the institution’s interventions–the final shape of remedies might be underwhelming. Indeed, depending on their policies states seek to minimize the impact of the ECtHR rulings, including by pursuing fewer and less demanding remedies. This may even be endorsed by other, non-involved states as they anticipate being subject to similar remedies in their own future cases. Based on an original dataset, the paper studies this interaction between the international and the domestic empirically by investigating all 3,173 adverse ECtHR judgments and their follow-up against Slovenia, Hungary and Poland published on HUDOC until 2021. To this, it adds every piece of domestic information I could find in media, official states’ websites and statements, NGO reports, etc. It specifically distinguishes the illiberal eras in Hungary and Poland and–applying the collective behaviour theory–investigates whether states have looked at like-minded states’ remedial practices. Building on state socialization theory, it then examines whether and how the ECtHR system influences states’ choices and whether it considers their (il)liberal context. Preliminary findings indicate that the interplay between the Committee and states over time institutionalised certain remedial practices, which introduced minimal standards states must respect in all cases. In dialogue with the institution, each state today further participates in applying the institutionalized and, ideally, construing the new remedial practices. These may then spread to other states and through the Committee’s endorsement also become institutionalised as part of the ECtHR’s ever-evolving remedial toolbox. Yet, the pace and success of such evolution seem to heavily depend on individual state policies: whilst ECtHR’s ‘loyal partners’ like Slovenia facilitate a tendency for higher standards, states like illiberal Hungary and Poland refuse to contribute. This preserves status quo and arguably prevents future institutionalisation of more effective remedies.