Abstract
This article explores the role of civil society in checking the executive as reflected in the case-law of the European Court of Human Rights. Although this role is traditionally associated with the judiciary and the legislative, in light of the institutional mutations in modern States, the ECtHR case-law envisages a multitude of forms through which civil society can check the government and thus uphold the ‘rule of law from below’. In addressing this recasting of the rule of law, the article discusses in particular the role of good and bad faith. The ECtHR case-law on the mala fides restrictions of rights under Article 18 ECHR highlights the idea that the checking of the executive by civil society is even more crucial in States where the rule of law is systematically suffering and thus the civil society is the only entity within the State that can genuinely check the executive. The civil society, on its part, should exercise these checking functions in good faith.
Highlights
There is no doubt that the restrictions on civil society qualify as a global trend
The ECtHR case-law on the mala fides restrictions of rights under Article 18 ECHR highlights the idea that the monitoring of the executive by civil society is even more crucial in States where the rule of law is suffering from a systemic point of view and civil society is the only entity within the State that can genuinely monitor the executive
In a number of cases, the restrictions on civil society have been brought to the attention of the European Court of Human Rights (ECtHR or the Court) through applications lodged by individuals, groups of individuals or non-governmental organisations (NGOs) claiming violations of their rights, mainly on the basis of Articles 5 (Right to liberty and security), (Freedom of expression) and
Summary
There is no doubt that the restrictions on civil society qualify as a global trend. The oppression of the protests against the Belarusian government and President Alexander Lukashenko in August 2020,1 or the detention of more than 5,000 demonstrators and of dozens of journalists during the large-scale protests in Russia at the beginning of 2021 were some of the latest additions to an already long list of restrictions on civil society across the globe.[2]. The present contribution will focus on the appraisal of this jurisprudence to identify civil society’s role in upholding ‘rule of law from below.’[5] In particular, it will explore the role of civil society in monitoring the executive.[6,7]. Such an exploration inevitably raises the question of what ‘civil society’ is. In the new accountability regimes, civil society organizations have ‘increasingly taken on [themselves] the task of monitoring the operation of both governments and intergovernmental institutions in relation to a number of fields where the rights of individuals and groups are concerned.’[18]
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