Explaining European Human Rights: Between Transnational and Domestic Politics

The European Court of Human Rights (ECtHR) is widely regarded as the most important human rights court worldwide. This contribution investigates the extent to which the court addresses cases from countries with the worst human rights performance. Using a new data set on all ECtHR judgments from 1995–2012, the analysis suggests that the ECtHR does not deliver its judgments against members of the Council of Europe with the worst human rights records, but instead against more democratic and affluent states. The reason is that litigating in front of a supranational court requires capacities that vulnerable people are unlikely to possess, except when aided by transnational advocacy groups. However, more judgements are issued against countries that lack independent judiciaries, where cases are less likely to be resolved at the domestic level. While the ECtHR might not address the worst human rights crimes, it plays a subsidiary role in the European human rights protection system by compensating for weak domestic judiciaries. However, the court’s inability to independently pursue litigation, together with the lack of capacity in some countries to bring cases forward, have hampered more effective protection of human rights for the most vulnerable in Europe. To illustrate this argument, we examine the case of Bulgaria, which has the most judgments per year issued against it. By law, Bulgarian courts are independent, but poor pay leaves the judiciary vulnerable to political and economic manipulation, and inadequate funding undermines the institutional capacity of courts. On numerous occasions over the last 15 years, the government and the parliament have been in more or less open conflict with the judiciary over its independence. The lack of judicial reform was a major challenge for Bulgaria’s entry into the EU. We argue that the reasons for Bulgarian non-compliance are rooted in domestic politics – and the interests of actors vested with judicial authority. Our analysis shows that the effective protection of human rights of minorities (in particular, Roma and Macedonians) is a politicized and unpopular issue, and the establishment of an independent judiciary remains politically divisive.