Litigating fundamental rights violations at supranational courts in Europe: The role of civil society Bulgaria and Hungary

While the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) are often given as examples for judicial arenas of ultimate justice accessible to European citizens and civil society actors, little is known about the legal mobilization strategies of civil society actors before these supranational courts in a domestic context of democratic backsliding. Bridging the gap between legal mobilization and the rule of law literature, with this paper I aim to enhance our understanding do and when civil society actors decide to resort to legal mobilization to address fundamental rights violations in such context when domestic political and even judiciary avenues might be captured. In any context, strategic litigation can serve successfully multiple goals (i.e. bargaining tool for legal or administrative changes, invalidating domestic laws and policies or raising public awareness of rights), but it also contains some risks (i.e. victimization of CS actors, attract more political pressure and prosecution, cause reallocation of financial and human resources and/ or losing the trust of constituencies). Considering these factors, I hypothesize that the political capture of the domestic judiciary as well as the restrictions on civil society funding, makes the stake that civil society actors take with litigation even higher in such political context. The paper focuses on one of the policy areas reported as most impacted by democratic backsliding – rule of law and judicial independence, and equality and anti-discrimination. I conduct a comparative research in two CEE EU Member States – Bulgaria and Hungary, which have shown signs of democratic backsliding over the last decade. On the basis of interviews with civil society organizations representatives, funding organizations and lawyers in Bulgaria and Hungary, I address the following questions: First, under what conditions and how would civil society actors decide to mobilize EU/international law to oppose fundamental rights violations in the context of democratic backsliding? Second, how accessible (or perceived to be) is the CJEU by civil society actors in the context of democracy backsliding? Third, if not legal mobilization, what other alternative approaches (if any) would civil society actors adopt to address fundamental rights violations at domestic level? This paper is aimed as a peek into civil society perceptions of and experiences with legal mobilization, their hurdles and possible avenues for mobilizing EU/international law, as well as the risks and benefits they associate with such a strategic tool.