Judicial Activism – The Last Refuge? How the European Court of Human Rights Have Addressed Challenges of Democracy and the Lack of the Separation of Powers

Central European states are posing a considerable challenge to transnational constitutionalism as they are gradually evolving into rival autocracies. What is peculiar about these states is that they are transforming the institutions of representative democracy and jurisdiction in order to serve the interests of the raw power of the majority. Furthermore, it might prove to be extremely complicated to articulate the lack of legitimation by means of public institutions since these states have undermined the principle of the separation of powers. These competitive autocracies (Hungary and Poland) are related to European and international institutions in a particular way therefore the raw power of the majority is counterbalanced by these European and international institutions. However, neither their legitimation is strong enough, nor do these institutions have the necessary legal means to safeguard the basic rights of suppressed minorities in these nation states and to act as a counterbalance to the majority. Consequently, it might be an appropriate response to this major challenge if international institutions begin to redefine their scope of action. In my talk I would like to discuss selected decisions made by the European Court of Human Rights in cases such as Baka v. Hungary and Karacsony and Others v. Hungary. In this context I will argue that in cases related to judicial independency or the rights and grievances of the Hungarian opposition MPs the Court of Human Rights tried to respond to serious violations of the separation of powers by speaking out for a wide concept of the freedom of expression. What are the arguments for and against such judicial practices? Can judicial activism be a response to the democratic challenges of nation states?