Pushback or Backlash against the European Court of Human Rights?

Abstract

This article uses the theoretical model of ‘pushback-backlash’ developed by Madsen, Cebulak and Wiebusch (2018) for a comparative analysis of the differing patterns of reaction to the European Court of Human Rights (ECtHR) by two Eastern European countries – Russia, and Poland. We argue that Russian Constitutional Court’s (RCC) rejection of ECtHR authority, while extraordinary and legislated by the Duma, was in fact self-limiting, as observed in politically motivated cases. The decisions of the Polish Constitutional Tribunal (PCT), by contrast, go further than pushback, as rights enshrined in the Convention may soon become illusory to Polish citizens. Having chosen a country that was expelled from the Convention (Russia), and one that is still a member (Poland), we suggest opening the conceptual binary between ‘pushback’ and ‘backlash’ towards a dynamic continuum.