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 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.

Keywords

• rule of law, civil society, check of the executive, european court of human rights, bad faith