MOBILISATION, LITIGATION AND DEMOCRATIC GOVERNANCE

Abstract

This analysis examines the interaction between advocacy groups and the European Court of Human Rights in the mobilisation and development of rights. The article is also concerned with the effects of this litigation on democratic governance. The study includes an original dataset of ECtHR judgments from 1960 to 2006 and examines the frequency and effects of societal group participation. The findings illustrate that rather than undermining democracy, judicialisation processes can at times enhance participation in rights development and protection

Notes

1. See Madsen (2007) for the central role of legal experts and activists in the development of the Convention system.

2. Alongside collective action taken by movement organisations or groups, scholars highlight the importance of activities carried out by individual activists who are often bound together in informal networks, but whose challenging action can be equally as effective as collective action by movement organisations (e.g., Katzenstein 1998).

3. See Collins (2008) on amici curiae before the United States Supreme Court.

4. For example, the work of the UK based AIRE Centre and the European Roma Rights Centre based in Hungary both are non-governmental organisations that have served these diverse roles in the evolution of Convention rights (Cichowski 2011).

5. Nachova and Others v. Bulgaria, no. 43577/98, no. 43579/98 ECtHR 2005.

6. The data was made available by the Council of Europe's department for the execution of judgments of the European Court of Human Rights.

7. The HUDOC case law database can be accessed at: http://www.echr.coe.int/echr/en/hudoc.

8. Article 46§1 of the Convention requires states to ‘undertake to abide by the final judgment of the Court in any case to which they are parties’. This requirement to execute judgments places precise obligations on respondent states. Further, the Court elaborated in its Scozzari and Giunta case (2000), re-emphasised and elaborated the state's obligation to take both individual measures in order to remedy the effects of the violation and general measures to prevent similar occurrences in the future. For further information on the execution of ECtHR decisions process and the national level implementation process see the Council of Europe's department for the execution of judgments of the European Court of Human Rights. Their website is: http://www.coe.int/T/E/Human_rights/execution.

9. The first request by a third party came in 1978 when the National Council for Civil Liberties requested to submit a brief in a pending case (Tyrer v. UK, no. 585/72). It was denied but the Court went on to grant leave to the UK in a later case (Winterwerp v. Netherlands, no. 6301/73 ECtHR1979) and then ultimately to a labour union also (Young, James & Webster v. UK, no. 7601/76, no. 7806/77 ECtHR 1981).

10. See European Court of Human Rights, Survey: Forty Years of Activity, 1998, pp. 134–7.

11. For example, see Éskomoravsk v. Czech Republic, no. 33091/96 ECtHR 1999; ARSEC and Others v. Spain, no. 42916/98 ECtHR 1999; Association of Polish Teachers v. Poland, no. 42049/98, ECtHR 1998; VgT v. Switzerland, no. 24699/94 ECtHR 2000; and in two other cases the ECtHR dismissed the claims of the NGO in the case on grounds of not being able to claim direct harm, Éonka v. Belgium, no. 51564/99 ECtHR 2001 and Asselbourg and Others, no. 29121/95 ECtHR 1999.

12. For example, Johannische Kirche and Peters v. Germany, no. 41754/98 ECtHR 2001; Christian Federation of Jehovah's Witness v. France, no. 53430/99 ECtHR 2001.

13. For example, Verdens Gang and Aase v. Norway, no. 45710/99 ECtHR 2001; Pasalaris and Foundation de Presse v. Greece, no. 60916/00 ECtHR 2002; Independent News and Media plc v. Ireland, no. 55120/00 ECtHR 2003.

14. For example, Unison v. UK, no. 53574/99, ECtHR 2002; Federation of Offshore Workers' Trade Unions v. Norway, no. 38190/97 ECtHR 2002.

15. For example, Women on Waves & Others v. Portugal (no. 31276/05 ECtHR 2009) involved three NGOs, one Dutch and two Portuguese, successfully won their claim that the Portuguese government had violated their Article 10 (freedom of expression) rights when it prevented the organisations from disseminating information about reproductive rights and abortion.

16. For example, Comingersoll v. Portugal, no. 35382/97, ECtHR 2000; Eielectric Srl v. Italy, no. 36811/97, ECtHR 2000.

17. El-Masri v. Macedonia, no. 39630/09 ECtHR 2012. See also Dolidze (2013).

Additional information

Rachel Cichowski is an associate professor with a joint appointment in the Department of Political Science and the Law, Societies and Justice programme at the University of Washington, Seattle, United States. She has published broadly on legal mobilisation and transnational activism in Europe, comparative judicial politics and international law and organisation.