The Role of Civil Society in Monitoring the Executive in the Case-Law of the European Court of Human Rights: Recasting the Rule of Law

Abstract

This article explores the role of civil society in monitoring the executive as perceived by the European Court of Human Rights. Although this role is traditionally associated with the judiciary and the legislature, in light of the institutional mutations in modern States, the ECtHR case-law envisages a multitude of forms through which civil society can monitor 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 on the part of both the State and civil society. 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 thus civil society is the only entity within the State that can genuinely monitor the executive. Civil society, on its part, should exercise these monitoring functions in good faith.