Comparative European Politics (2020) 18:151–170

https://doi.org/10.1057/s41295-019-00157-6

ORIGINAL ARTICLE

The European Court of Human Rights under scrutiny:

explaining variation in non‑compliance judgments

Diana Panke1

Published online: 6 February 2019

© Springer Nature Limited 2019

Abstract
Since 1959, the European Court of Human Rights (ECHR) can issue judgments
against member states of the Council of Europe that violate the European Conven-
tion on Human Rights. The number of non-compliance judgments of the Court var-
ies considerably. Some states have been found to violate rules more than 2000 times,
while the number of non-compliance judgments is in the single digits for others.
Since we know a lot about (non-)compliance in the EU, but not much about the
same phenomenon in other regional organizations, this article examines why some
countries receive more ECHR judgments than others. Powerful countries, states
with limited administrative capacities, and countries without active civil societies
tend to have higher shares of ECHR non-compliance judgments. Moreover, the
paper argues that under conditions of low legalization, autocratic countries are more
likely to block cases from turning into ECHR judgments than countries with higher
democracy scores.

Keywords  European Court of Human Rights · Council of Europe · European

Convention on Human Rights · Non-compliance · Enforcement theory ·
Management approach

Introduction

The body of research on (non-)compliance in the European Union (EU) is large and
rich (for an overview, see Treib 2014). It has studied factors responsible for delayed
and incomplete transposition of EU law into national law as well as incomplete or
incorrect implementation of EU law and has done so across the various stages of EU

* Diana Panke
Diana.Panke@politik.uni‑freiburg.de
http://portal.uni-freiburg.de/politik/professuren/governance
https://www.facebook.com/politik.uni.freiburg
1
Department of Political Science, Albert-Ludwigs-Universität Freiburg, Belfortstr. 20,
79085 Freiburg, Germany

Vol.:(0123456789)
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D. Panke

infringement proceedings, ranging from formal letters, over reasoned opinions, to

judgments of the European Court of Justice (ECJ), and financial penalties issued by
the ECJ. While we know a lot about the country-, policy-, and rule-related variables
driving the various types non-compliance in the different stages of escalation in the
EU, violations of norms and rules in other European regional organizations (RO)
have hardly been in the limelight of research. This article seeks to make a contribu-
tion toward filling this gap and examines hard cases of norm violations that have
reached a regional court in another RO, namely the Council of Europe (CoE).
The European Court of Human Rights (ECHR) is responsible for judging over
the CoE’s member states’ (non-)compliance with the European Convention on
Human Rights. Although the ECHR has been established in 1959 and strengthened
in 1998, it is seldom in the limelight of political science research.1 This is surprising
since its jurisdiction concerns important policy area, human rights and fundamental
freedoms, and its judgments are binding vis-à-vis today’s 47 CoE member states
(Article 46 of the European Convention on Human Rights). The ECHR is an active
court, and there is not a single CoE member state that has not already been found in
violation of elements of the Human Rights Convention.
This article examines the Court’s activities between 1959 and 2015 and shows
that there is temporal variation. While the Court has only issued 602 judgments
on non-compliance in the first four decades of its existence, it became considera-
bly more active in the subsequent period of 17  years and ruled on 14,413 human
rights violations. Moreover, CoE members violate the European Convention on
Human Rights to different extents. In fact, the number of Court judgments against
CoE member states varies considerably. While Turkey has been found to violate the
Human Rights Convention the most often (2708) followed by Italy (1735), Monaco
has the least number of negative judgments (2), preceded by Andorra (3). The paper
studies the following research question: Why are some countries found to violate the
European Human Rights Convention more often than others? In doing so, the paper
also examines whether there are higher numbers of ECHR judgments over time.
In order to answer these questions, the paper proceeds in the following steps. Sec-
tion 2 provides an introduction to the ECHR’s competencies and activities and illus-
trates the empirical pattern of its judgments. Section 3 reviews the EU-related theo-
retical literature on the compliance of regional organization (RO) member states and
the activity of RO courts in order to identify the most prominent theories, namely
the enforcement and the management approach. These theories are used in order
to develop a set of hypotheses on a variation of ECHR rulings on non-compliance.

1
 Exceptions include Helfer and Slaughter, Brummer, Hafner-Burton, and Jordan, who examine
the effectiveness of the European human rights regime and who focus on the impact of and interplay
between specific individual rights and the CoE/its member states, respectively (Helfer and Slaughter
1998; Jordan 2003; Brummer 2010; Hafner-Burton 2012), or Voeten who studies the appointment pat-
terns of judges and their judicial independence (Voeten 2007, 2008). Simmons and Cichowski shed light
on human rights and study how democratic participation and social mobilization impact states compli-
ance with human rights and its implications for the ECHR (Cichowski 2006; Simmons 2009), while
Hillebrecht how states comply with ECHR judgments and how this induces domestic change (Hillebrecht
2014).
The European Court of Human Rights under scrutiny: explaining… 153

Section 4 empirically examines these theoretical expectations and uses quantitative

methods in order to shed light on the plausibility of the hypotheses. This reveals that
powerful states have a greater probability of being found in violation of the Conven-
tion by the Court than weaker states, that states with active civil societies are likely
to respect human rights more strongly and are less likely to be subject to non-com-
pliance judgments, and that increasing administrative capacities tend to reduce the
chances of negative judgments of the ECHR. Most importantly, there are interesting
patterns over time. Before 1998, the ECHR had a limited level of legalization, as
states could de facto prevent being subject to ECHR judgments. After an institu-
tional reform, the level of legalization increased. As a consequence, states were no
longer able to block the ECHR from issuing judgments after 1998. While demo-
cratic states are less likely to be found in violation of the Convention by the ECHR
in the post-1998 period (due to a lower discrepancy between the Human Rights Con-
vention and domestic norms and values in democracies compared to more autocratic
countries), they received more non-compliance judgments of the Court in the period
before 1998 than more strongly autocratic countries. The latter finding is likely due
to the differences in the behaviors of CoE member states under conditions of limited
legalization. This article suggests that, compared to democracies, autocracies have
used their ability to turn de facto into gatekeepers more often and prevented cases
from reaching the ECHR in the first place while the level of legalization was low
(before 1998).

The ECHR and human rights violations

A milestone in the international human rights regime has been achieved with the
proclamation of the Universal Declaration of Human Rights by the United Nations
General Assembly (UNGA) in 1948 (Schmitz and Sikkink 2002; Forsythe 2006;
Verdirame 2011). Since it came into force in 1953, the Convention for the Protection
of Human Rights and Fundamental Freedom (often called the “European Conven-
tion on Human Rights”) gives effect to the core rights and freedoms specified in
the Universal Declaration of Human Rights. The member states of the Council of
Europe (CoE) are signature states of the European Human Rights Convention and
are obliged to comply with these rights and freedoms. Thus, Article 1 states “The
High Contracting Parties shall secure to everyone within their jurisdiction the rights
and freedoms defined in Section I of this Convention.”
In Articles 19–51, the European Human Rights Convention sets up the European
Court of Human Rights (ECHR). The ECHR was founded in 1959, which makes it
one of the oldest regional courts in the world. As specified by the Convention, the
ECHR has jurisdiction of the human rights compliance of the CoE member states,
and its judgments are binding (Article 46 of the European Convention on Human
Rights).
Initially, the European Commission on Human Rights was the body to which
states could submit a complaint concerning a possible human rights violation of a
fellow member state, which the European Commission on Human Rights reviewed
and reported to the Council of Europe. On this basis, either the affected state or
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D. Panke

the European Commission on Human Rights could submit cases to the ECHR. (If a
court referral did not happen, the CoE remained responsible for evaluating and fol-
lowing up the complaint.) This procedure to initiate cases was changed in 1994 (9th
protocol to the European Human Rights Convention), in which the right to submit
cases to the ECHR was broadened to allow individuals to bring human rights viola-
tions before the Court. Still the in order to become active, the Court still needed the
consent of the accused state. In 1998, a further procedural change took place. The
11th protocol to the European Human Rights Convention changed the application
procedure. Now, individuals (as well as states) can direct their complaints directly
to the ECHR and initiate court cases without the consent of the affected state and
without a prior evaluation by the European Commission on Human Rights2 (Leach
2011). At the same time, the ECHR became a permanent court, which is in session
all year.
Legalization is defined as the extent to which international and regional organiza-
tions reflect “the decision in different issue areas to impose international legal con-
straints on governments” which is captured by three elements “the degree to which
rules are obligatory, the precision of those rules, and the delegation of some func-
tions of interpretation, monitoring, and implementation to a third party” (Goldstein
et al. 2000: 386–387). This article focuses on the latter criterion. The ECHR has the
competence to interpret the European Human Rights Convention and can issue judg-
ments against states that the Court finds in violation of the Convention. Although
each state has the right to suggest the appointment one out of the total 47 ECHR
judges, they are independent from the CoE member states. Not only is the judges’
term of office 9  years and a reelection not possible, but each judge needs also be
elected by the parliamentary assembly of the CoE before entering office (Voeten
2007, 2008). Hence, the extent to which the European human rights regime is
regarded as legalized is high (Helfer and Slaughter 1998; Abbott et al. 2000; Gold-
stein et al. 2000).
How often are CoE member states judged to violate the rights and freedoms as
specified by the European Convention on Human Rights? This article sheds light on
negative judgments of the ECHR that find member states to be in violation with the
Convention. We see that between its creation in 1959 and the 31.12.20153 the ECHR
issued non-compliance judgments in 15,015 instances. Although the level of obliga-
tion of the European Convention on Human Rights did not change over time, the
non-compliance rulings are not evenly distributed across the years. Figure 1 depicts
that the average number of judgments in which the Court found a CoE member state
of being not in compliance ranges between 0 cases per member state up until 1967
and 31.89 cases per member state in the peak year of 2009. While the number of
non-compliance judgments increased strongly after 1998, this trend was interrupted
in the years 2003 and 2004 and reversed after 2009.

2
  For this reason, the European Commission on Human Rights was dissolved in 1998.
3
  This is the longest period of observation for which the data are available under http://hudoc​.echr.coe.
int/eng (accessed in October 2016). The year 2016 was not included as the data have not been available
for the entire year at the point of data collection.
The European Court of Human Rights under scrutiny: explaining… 155

Fig. 1  Average number of
ECHR non-compliance judg-
ments per year

Fig. 2  Judgments detecting human rights violations per member state

In addition to variation over time, there is also variation between CoE member
states concerning the number of times the Court ruled that they violate of the Euro-
pean Convention on Human Rights (c.f. Fig. 2). In absolute terms, the countries with
the lowest number of negative judgments are Monaco (2), followed by Andorra and
Lichtenstein (3 and 7, respectively). On the other end of the spectrum are countries
with a considerably higher number of verdicts on non-compliance with the Euro-
pean Convention on Human Rights, namely Turkey (2708), preceded by Italy and
Russia (1735 and 1572 norm violations, respectively).
The variation between the CoE member states is interesting for several reasons.
First, all countries have at one point been judged as violating human rights, even
long-standing and democratic member states, such as Denmark, France, Ireland,
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D. Panke

Luxembourg, Germany, Norway, or Sweden. Second, states not only lose reputation
when being subject to an ECHR judgment for violating human rights but can also be
made liable for compensations. Yet, there is no univocal deterrence effect that leads
to uniformly low levels of negative judgments among the CoE member states. Third,
given that the CoE had competencies in the human rights area from the very start, it
is backs explanation why several states joined or remained in the CoE despite being
judged as frequent human rights violators and despite the increasing strength of the
ECHR.
There is also a temporal pattern. The very fact that the number of ECHR cases
increases heavily after 1998 is not likely to be due to an increased non-compliance
problem in the CoE, but due to an increased openness of the ECHR’s infringement
procedure. Shifting from a state-based to an individual-based system of bringing
cases to the Court, not only multiplies the number of potential plaintiffs, which con-
siderably increases the number of cases that have the potential to reach the Court
and become subject to a negative judgment. In addition, this institutional reform also
abolishes the power of the accused ECHR member state to de facto prevent the case
from reaching the Court. Thus, the strong increase in the number of non-compliance
rulings after 1998 is in line with the legalization literature’s claim that the extent
of legalization matters for the detection of non-compliance and the sanctioning of
such behavior through third parties, such as the ECHR (Abbott et  al. 2000; Gold-
stein et al. 2000; Kahler 2000).

Theorizing ECHR’s Non‑compliance Judgments

Why does the number of ECHR judgments detecting non-compliance vary between
states? In order to empirically explore answers to this question, this section revisits
the theoretical literature on non-compliance and regional courts as well as on human
rights in order to develop a set of hypotheses that will be examined in Sect. 4.
The literature on international cooperation usually implicitly assumes that states
comply with the policy outcomes that they negotiate on a regional or international
level, since they have agreed to these policies in the first place. Yet, empirical work
has pointed out that instances of norm and rule violations take place in all politi-
cal systems and with respect to all policy areas.4 Thus, when creating or changing
international and regional organizations, the member states often opt for a legalized
institutional design of the IO and RO in question, for instance through monitoring
and dispute settlement bodies or through courts, in order to tackle cases of potential
non-compliance (Abbott et  al. 2000; Goldstein et  al. 2000; Kahler 2000; Keohane
et  al. 2000). But why do states violate the very norms and rules of an IO or RO
which they joined at their free will in the first place?

4
 C.f. Fisher (1981), Mitchell (1994), Tallberg and Christer (1998), Underdal (1998), Falkner et  al.
(2005), Hartlapp (2007), Linos (2007), Mastenbroek (2007, Perkins and Neumayer (2007), Toshkov
(2008), Joerges and Zürn (2009), Panke (2010b), Zürn and Joerges (2005), Cremona (2012).
The European Court of Human Rights under scrutiny: explaining… 157

The EU compliance literature often distinguishes between involuntary and vol-

untary reasons for norm violations of states in using enforcement and management
approaches, respectively (Mitchell 1996; Hartlapp 2007; Cremona 2012; Panke
2007).
In order to comply with regional or international norms, states need to make sure
that their domestic legal acts are in accordance with the international or regional
norms and rules, and that they correctly implement and apply these legal acts.
The fewer capacities a state has, the more likely it is that involuntary instances of
norm violation occur (Chayes and Handler-Chayes 1993, 1995; Börzel et al. 2010;
Tallberg 2002). For instance, a poor state might lack the personnel and material
resources in order to implement legal acts fully and preempt or swiftly remedy
instances of instances of detected incomplete or incorrect implementation (Coyle
1994; Ponce-Nava 1995; Brautigam 1996; Hille and Knill 2006). Similarly, few
political capacities can also lead to involuntary instances of norm violations (Bör-
zel, et al. 2010). A government facing a high number of veto players (e.g., a strong
parliamentary opposition) might be unable to change the domestic legal acts in line
with the regional or international rules and norms, leading to violations of the latter
(Börzel et al. 2010). Hence, hypothesis one expects that the fewer capacities a state
possesses, the more often the ECHR issues judgments on non-compliance against
this state.
Another reason for involuntary norm violations lies in possible misinterpretations
of regional or international rules or norms by the state in question. International and
regional norms and rules are usually formulated in the abstract and can entail ele-
ments of incomplete contracting (Chayes and Handler-Chayes 1991, 1995). Thus,
a government might involuntarily violate rules and norms through incomplete or
incorrect legal adaptation or through incorrect or incomplete practical implementa-
tion if it misinterprets the aim and content of the regional or international norms
and rules in question (Panke 2010a, b). The longer a state has been a member of
an RO or IO, the more time it had to learn about its obligations and the less likely
the chance that misinterpretations lead to involuntary non-compliance (Levitt and
March 1988; Farkas 1998; Busenberg 2001; Checkel 2001). Accordingly, the second
hypothesis expects that the longer a state has been member of the CoE, the less often
the ECHR issues judgments on non-compliance against this state.
States can also willingly violate regional or international norms and rules. This
strand of theoretical approaches assumes that states are strategic rational actors who
engage in cost–benefit calculations when deciding whether or not to comply with
obligations arising from membership in regional or international organizations. In
general, states comply with a rule or norm, when it is in their interest to do so. Thus,
when compliance benefits are lower than compliance costs, norm violations should
occur.
The mismatch approach focuses on the policies and norms already in place in
a state and the policy distance to the regional or international norm or rule that
needs to be complied with (Börzel 2001; Börzel and Cichowski 2003; Falkner
et  al. 2005). It assumes that the current domestic norms and rules in place are
in line with the government in power. In this context, the greater the overlap
between both sets of norms and rules, the lower the compliance costs and the
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D. Panke

fewer incentives states have to violate the regional or international rule or norm
in question (Falkner et  al. 2005). By contrast, if the policy distance between
domestic and regional/international norms and rules increases, so do the com-
pliance costs. Hence, norm violations are more likely. In the case of the ECHR
and the European Convention on Human Rights, the norms and rules in question
relate individual rights and freedoms, including political rights such as freedom
of speech, freedom of assembly and association, and a right to free elections (Kel-
ler and Sweet 2008). Thus, the less democratic a country is, the greater the mis-
match between domestic and regional norms and rules and the higher the compli-
ance costs for the government in office. Accordingly, hypothesis three states: the
less democratic a country is, the greater the compliance costs associated with the
Human Rights Convention and the more often the ECHR issues negative judg-
ments against this state.
States that violate norms of the European Human Rights Convention are more
likely to be subject to negative ECHR judgments. Hence, the enforcement approach
also assumes that cost–benefit calculations are essential for decisions of political
actors whether or not to comply with law beyond the nation-state and contents that
states differ in their power to tolerate costs associated with non-compliance, such as
court rulings (Downs 1998; Tallberg 2000; Hartlapp 2007; Mitchell and Keilbach
2001; Tallberg 2002). In general, compliance costs are not only composed out of
domestic costs (e.g., financial investments needed) but can also be linked to either
regional/international material costs (e.g., economic sanctions) or ideational costs
(e.g., losses in reputation) (Martin 1992; Schoppa 1999). In instances in which
actors’ preferences point toward violations of regional norms or rules, their power is
assumed to play an important role in their decision whether or not to violate a norm
or rule. The more powerful a state is, the less it is affected by potential negative con-
sequences arising from non-compliance. Thus, powerful states are better able to pay
for sanctions or circumvent losses in credibility or reputation vis-à-vis current coop-
eration partners by acting unilaterally in the future (Martin 1992; Schoppa 1999).
Accordingly, powerful states can afford to violate international or regional norms
and rules more often than states with less power and higher sensitivity to negative
consequences of their actions (Börzel et al. 2010). Thus, hypothesis four expects that
the more powerful a country is, the more often the ECHR issues judgments on non-
compliance against this state.
Finally, the literature on international human rights points out that domestic
collective actors are important for the respective country’s compliance with the
international norms. Social mobilization forces governments into compliance with
international human rights norms (Cichowski 2006; Simmons 2009; Simmons and
DiSilvestro 2014). The more social mobilization takes place in a country, the cost-
lier violations of human rights become for these countries, since civil society actors
can publicly shame the government. Such governments would risk losses of domes-
tic and international reputation if it continued neglecting human rights. In addition,
domestic social mobilization can also impose costs on governments, for instance in
exercising threats of electoral sanctions. Thus, the presence of an active civil society
increases the chances that a government respects human rights. Applied to the CoE,
such countries should feature lower numbers of ECHR non-compliance judgments.
The European Court of Human Rights under scrutiny: explaining… 159

The fifth hypothesis states: The higher the level of social mobilization in a country,
the less often the ECHR issues non-compliance rulings against this country.
In addition to these five hypotheses, the literature on the European Court of Jus-
tice (ECJ) and its preliminary ruling procedure points to an important additional ele-
ment that needs to be taken into account (Rasmussen 1986; Halrlow 1993; Weiler
1994; Cichowski 1998; Garrett et  al. 1998; Mattli and Slaughter 1998; Bradley
2002; Cichowski 2002; Börzel 2006; Alter 2009; Panke 2010a). The EU’s prelimi-
nary ruling procedure is an indirect procedure, which starts and ends in the member
states. If a national court is uncertain whether to apply and how to interpret EU
law in a domestic court case, it can refer the case to the ECJ. The ECJ issues a pre-
liminary ruling in which it provides an interpretation of the EU law in question and
refers the case afterward back to the national court to decide. Preliminary rulings
have received scholarly attention not only because the ECJ has also developed new
legal doctrines in its preliminary rulings (e.g., the principle of mutual recognition in
the Cassis the Dijon case), but also because the number of preliminary ruling cases
varies between countries (Stone Sweet and Brunell 1997; Cichowski 2002; Car-
rubba and Murrah 2005). The literature shows that the more populous a state is, the
greater the number of cases that reach courts in general, and the greater the chances
that a national court refers a case to the ECJ for a preliminary ruling (Stone Sweet
and Brunell 1997; Conant 2001; Cichowski 2002; Conant 2002; Carrubba and Mur-
rah 2005; Conant 2006). A similar opportunity structure argument needs to be taken
into account for the ECHR cases as well. The more people live in a country; the
more opportunities there are foe states to violate human rights and the more oppor-
tunities there are that those affected seek remedy on the European level. Since we
expect that the larger a country is, the more often the ECHR issues negative judg-
ments against this state, the below analysis controls for variation in country size.

Empirical analysis and discussion

This section discusses the operationalization of the variables and the selection
rationale for the quantitative regression models. Subsequently, this section presents
the empirical findings and discusses the plausibility of the hypotheses.
The independent variables of the managerial, mismatch, enforcement, and social
mobilization approaches are operationalized in the following manner (for descrip-
tive statistics, c.f. Appendix): Hypothesis 1 focuses on capacities, and in line with
the compliance literature, we distinguish between political and administrative capac-
ities as both can be important for the ability of governments to comply with law
beyond the nation-state (Chayes and Handler-Chayes 1993, 1995; Börzel et al. 2010;
Tallberg 2002). Thus, in accordance with this strand of research, political capaci-
ties capture the ability of governments to formulate and pass policies without them
being changed by political veto players. The pol con3 variable from the Quality of
Government dataset captures the political constraints a government is facing and
ranges from 0 to 1 with 1 being the highest level of political constrains (Quality of
Government dataset, http://www.qogda​ta.pol.gu.se/data/qog_std_jan17​.pdf accessed
on January 15th 2017). Administrative capacities are measured by GDPpc in million
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D. Panke

USD for the period 1960–2015, which captures the socioeconomic wealth of a coun-
try as a proxy for the extent to which administrations are well equipped in order to
support the implementation of law beyond the nation-state. The data stem from the
World Bank dataset (http://data.world​bank.org/ accessed on February 10th 2017).
Hypothesis 2 expects that socialization matters for state compliance as it reduces the
chances for misinterpretations. The independent variable is measured by the dura-
tion of CoE membership per state in years. The extent of democracy (hypothesis 3)
is operationalized through the Van Index, which stems from the Quality of Govern-
ment dataset (http://www.qogda​ta.pol.gu.se). It is a continuous variable with higher
values being indicative of higher levels of democracy. Power is the independent var-
iable of hypothesis 4. It is measured by GDP in billion US$, the data for which stem
from the World Bank and covered the period 1960–2015 (c.f. http://data.world​bank.
org/). Hypothesis five focuses on the potential for social mobilization in a country.
This variable is measured by the Empowerment Rights Index, which stems from the
Quality of Government dataset (http://www.qogda​ta.pol.gu.se/data/qog_std_jan17​
.pdf). The index covers rights that are important for social mobilization, such as
freedom of speech, freedom of assembly and association, workers’ rights, electoral
self-determination, foreign movement, domestic movement, and freedom of reli-
gion. The indicator ranges from 0 (lowest value) to 14 (highest potential level of
mobilization). Finally, the control variable country size is measured by the popula-
tion and is available for the period of 1960–2015 in the World Bank database (http://
data.world​bank.org/).
The dependent variable of this analysis is the number of non-compliance judg-
ments of the ECHR per member state year. It is a count variable, and negative bino-
mial regressions are used to accommodate the overdispersion in the data. The analy-
sis covers more than 50  years according to which a cross sectional panel analysis
is in order. In order to accommodate the fact that each country has entries for each
year, the models include clustered standard errors for countries. As power and size
correlate highly, it is necessary to put them in separate models. In fact, all models
are set up in a manner avoiding problems resulting from multicollinearity. Since the
infringement procedure had been changed in 1998, the analysis provides regressions
for the full period (1959–2015) as well as regressions for the pre- and post-1998
phase separately in order to study whether state’s norm and rule violation ration-
ales differ between phases in which the level of legalization differ considerably.
As robustness check, the full models were also run with a time lag of 2 years (see
Appendix).
Table  1 reports on the full models covering the ECHR non-compliance judg-
ments between 1959 and 2015. By contrast, Table 2 covers the pre-1998 cases only,
while Table 3 reports the regression results for the post-1998 period.
First, the full models show that not all hypotheses can account for the cross-
country variation of ECHR negative judgments for the full period of 1959–2015
(Table 1).
In the full dataset, higher constraints by domestic veto players, which is indicative
for fewer political capacities, robustly increase the probability of being subject to a
ECHR judgment for non-compliance with human rights norms. While the political
constraints variable features the expected signs throughout all models, the findings
The European Court of Human Rights under scrutiny: explaining… 161

Table 1  ECHR non-compliance judgments 1959–2015

Model 1 Model 2 Model 3 Model 4 Model 5 Model 6

Political constraints 1.319 1.896 2.150*

(0.860) (1.238) (1.072)
Administrative capaci- − 25.174*** 42.174***
ties − (5.800) (7.342)
Socialization 0.053*** 0.044**
(0.015) (0.017)
Extent of democracy − 0.076** − 0.073**
(0.027) (0.024)
Power 0.001** 0.002**
(0.001) (0.001)
Social mobilization − 0.342*** − 0.247***
(0.052) (0.066)
Size 0.000*** 0.000*** 0.000***
(0.000) (0.000) (0.000)
Constant 0.944* 2.097** 3.560*** 2.158*** 3.906*** 3.041***
(0.403) (0.718) (0.696) (0.284) (0.931) (0.794)
N 1306 1198 1186 1326 936 936
BIC 5749.501 4944.068 5069.161 5857.314 4906.279 4835.734

Clustered standard errors (countries) in parentheses

*p < 0.05; **p < 0.01; ***p < 0.001

Table 2  ECHR non-compliance judgments before 1998

Pre 1998 Model 1 Model 2 Model 3 Model 4 Model 5 Model 6

Political con- 3.233** 2.001 2.872**

straints (1.069) (1.769) (0.911)
Administrative 31.512 13.831
capacities (17.478) (14.283)
Socialization 0.092*** 0.084*** (0.015)
(0.015)
Extent of democ- 0.059*** 0.073*
racy (0.018) (0.030)
Power 0.001*** 0.002***
(0.000) (0.000)
Social mobiliza- 0.060 0.065
tion (0.076) (0.095)
Size 0.000*** 0.000*** 0.000***
(0.000) (0.000) (0.000)
Constant − 3.660*** − 5.518*** − 3.817*** − 1.806*** − 4.078** − 2.916
(0.736) (0.878) (1.019) (0.317) (1.290) (1.555)
N 733 728 716 748 404 404
BIC 1249.039 1100.131 1207.402 1243.203 967.294 1005.802

Clustered standard errors (countries) in parentheses

*p < 0.05; **p < 0.01; ***p < 0.001
162
D. Panke

Table 3  ECHR non-compliance judgments after 1998

Pre 1998 Model 1 Model 2 Model 3 Model 4 Model 5 Model 6

Political constraints 1.442 1.787 2.085*

(0.771) (1.228) (1.063)
Administrative capaci- − 28.767*** − 43.874***
ties (5.109) (7.417)
Socialization 0.012 0.033*
(0.014) (0.016)
Extent of democracy − 0.020 − 0.058*
(0.022) (0.028)
Power 0.001*** 0.001***
(0.001) (0.001)
Social mobilization − 0.262*** − 0.162*
(0.055) (0.064)
Size 0.000*** 0.000*** 0.000***
(0.000) (0.000) (0.000)
Constant 1.734*** 2.063*** 3.991*** 3.010*** 3.771*** 2.545**
(0.427) (0.609) (0.883) (0.310) (0.909) (0.790)
N 610 505 505 615 566 566
BIC 3954.504 3321.691 3412.049 4061.655 3766.510 3660.115

Clustered standard errors (countries) in parentheses

*p < 0.05; **p < 0.01; ***p < 0.001

are only significant at 5 percent level in one model (model 6, Table 1). Accordingly,
the expectation that political capacities have bearing upon the ECHR’s negative
judgments receives no strong empirical support. Table 1 also illustrates that increas-
ing administrative capacities robustly reduces the chances for non-compliance
ECHR judgments. This effect is also highly significant (models 1 and 4).5 On this
basis, the findings for administrative capacities can be interpreted as being in line
with the first managerial hypothesis (H1).
The socialization hypothesis expects that states which have been in the CoE for
longer periods of time misinterpret CoE norms and rules less often and consequently
are less likely to become subject to non-compliance judgments of the ECHR. Yet,
for H2, the null hypothesis must be rejected. Table  1 reveals that an increase in
member duration significantly increases the likelihood that a state becomes subject
to negative ECHR rulings which is not in line with the expectation of the second
managerial hypothesis (H2).
Hypothesis 3 focuses on the mismatch between domestically ingrained norms and
regional ones. It expects that complying with European human rights norms it less
costly if similar norms are already institutionalized domestically. Table 1 shows that
an increase in democracy robustly and significantly reduces the probability of the
ECHR issuing a negative ruling in the period of 1959–2015. Thus, the theoretical
expectation that regime type matters concerning the probability of ECHR judgments
does not have to be rejected.

5
  And at the 0.1% level in the time lagged models (Table 4).
The European Court of Human Rights under scrutiny: explaining… 163

According to the enforcement hypothesis (H4), powerful states are hardly

deterred from negative ECHR rulings because they can more easily afford poten-
tial reputation or other costs of such non-compliance judgments. As expected, an
increase in power increases the likelihood that states are found in violation of the
Convention by the ECHR. The effect is robust and significant in the full model
(Table  1). This is in line with Stone Sweet’s finding on the ECJ not being intimi-
dated by powerful states and refutes the argument of Carruba, Gable, and Hankla
that regional courts tend to rule less often against powerful states than weaker ones
(c.f. Carrubba et al. 2008; Stone Sweet 2000).
Social mobilization can push governments into respecting human rights stand-
ards in the domestic realm in order to avoid shaming campaign, losses in reputation,
and reduced electoral support. In line with the social mobilization hypothesis (H5), a
higher level of social mobilization significantly reduces the likelihood that the respec-
tive state is ruled to not comply with the Convention by the ECHR in the period of
1959–2015.
Finally, a larger population significantly and robustly increases the probability of
a Court ruling on human rights violations of the respective country. Thus, as the
control hypothesis expected, the potential case-load is likely to matter. The direc-
tionality and level of significance of the independent variables of hypotheses 1, 2,
3, and 5 are not affected by the size of states as each independent variable has been
included in models with and in models without “population.” This does not apply
to the independent variable of hypothesis 4, since “power” and “population” are
highly correlated (0.7115) due to the fact that powerful states tend to be larger as
well. Hence, to avoid problems arising from multicollinearity hypothesis 3 was only
examined in models without the control variable “population.”
The ECHR’s procedure changed in 1998, from which point onward, states could
no longer prevent cases from reaching the Court. Thus, one could expect that more
cases are brought to the ECHR overall after 1998 and that all CoE member states are
equally affected by this increase in legalization. Since the 1998 institutional change
provides a natural experiment of the impact of institutional design, we next analyze
both periods separately. Comparing the split models pre- and post-1998 reveals sev-
eral interesting insights.
First, not all countries are equally affected by the institutional change of 1998. The
sign for the democracy variable changes (compare Tables  2, 3). In the early period,
in which states could de facto prevent ECHR judgments against them, being more
autocratic decreased the probability of ECHR non-compliance cases, while in the lat-
ter period an increase in democracy tends to decrease the probability of being found
in violation of the Convention. Most likely, this neither indicates that autocracies vio-
lated human rights less before 1998 than afterward, nor that before 1998 democracies
were worse compliers with the Convention than autocracies. Instead, this finding sug-
gests that before 1998, autocracies blocked more cases from reaching the ECHR than
their more democratic counterparts, but were no longer able to do so after the extent
of legalization increased in 1998. As a result, a higher level of democracy is no longer
associated with a higher number of negative ECHR judgments in the post-1998 period
(c.f. Table 3).
164
D. Panke

In other words, this indicates that prior to 1998, less democratic countries used their
gatekeeping ability more often in order to prevent ECHR judgments against them-
selves than strongly democratic ones (c.f. Table 2). Once states lost their gatekeeping
power over the opening of Court cases with the 1998 reform, the directionality of the
effect gets reversed. (The positive sign of models 2 and 3 in Table 2 turns negative in
Table 3.) Thus, in the post-1998 period, the probability that states are judged as vio-
lating the Convention tends to decrease with an increasing level of democracy. This
post-1998 finding resonates well with the misfit hypothesis (H3) which expects that
democracies have better human rights compliance records than non-democracies.
Second, the findings from the full period analysis should be revisited in order to
check the validity of the insights gained so far. Comparing the full with the post-
1998 analysis reveals that the conclusions drawn on the basis of the full sample
(Table  1, discussion above), still hold. Based on the post-1998 data (Table 3), the
probability of ECHR non-compliance rulings significantly increases with decreas-
ing administrative capacities (in line with the H1) and with increasing power (in line
with H4). The effect of political capacities is equally robust across both datasets.
Also, the findings for democracy do also not change in the full and the high legaliza-
tion samples, as an increase in democracy is associated with a lower probability of
being subject to an ECHR non-compliance judgment (H3). In addition, an increase
in social mobilization robustly reduces the probability of negative judgments in both
the full period and the post-1998 analysis (H5). Last, hypothesis 2 which captures
state socialization into the CoE needs to be rejected in the analysis of the full sample
as well as of the post-1998 subsample.
Third, prior to 1998, an increase in administrative capacities increases the prob-
ability to be subject to an ECHR judgment (Table 2), while in the post-1998 period
administrative capacities significantly reduce the likelihood of non-compliance
judgments (Table  3). This suggests that only the post-1998 period is in line with
the managerial capacity hypothesis (H1). In this pre-1998 period, an increase in
administrative capacities seems to significantly increase the probability of ECHR
judgments. This is likely to be a statistical artifact. The positive correlation between
administrative capacities and non-compliance judgments pre-1998 is most likely due
to the fact that being more democratic increases the probability the ECHR issues
a negative ruling in this period, as democracies use their gatekeeper function less
often to prevent cases from reaching the ECHR.
Fourth, some findings are not affected by the change in the extent of legalization of
the Court. Irrespective of the time period, more powerful states have a higher probabil-
ity for non-compliance judgments of the ECHR than weaker states. Thus, irrespective
of the extent to which a country might be inclined to block cases from becoming sub-
ject to an ECHR judgment, the enforcement logic still holds. This suggests that, ceteris
paribus, more powerful states are less sensitive toward potential costs (e.g., losses in
reputation) associated with negative ECHR judgments than less powerful ones.
The European Court of Human Rights under scrutiny: explaining… 165

Conclusions

While we know a lot about the European Court of Justice and non-compliance in the
EU, other regional courts are less often under examination. This is surprising, since,
over the last two decades, we witnessed a wave of legalization at the international
and the regional level, according to which ROs and IOs strengthen their dispute set-
tlement or infringement procedures in opening access and increasing the independ-
ence of the appellate bodies or courts.
Thus, this article sheds light on the Council of Europe and the European Court
of Human Rights. The ECHR has been established at the end of the 1950s and
remained rather inactive until 1998, in which a procedural reform broadened the
access to the Court and robbed accused states from effectively operating as gate-
keepers controlling which cases reach the Court in the first place. Apart from this
temporal variation, there is also a variation on the country level. While there are
no CoE member states that have not exhibited non-compliance at all, some states
are subject to higher numbers of judgments on human rights violations than others.
How well do state of the art theories account for the observed patterns in negative
ECHR judgments? Can we transfer the insights gained from studying non-compli-
ance judgments in the EU to the CoE?
As a first step toward closing the gaps in our knowledge, this article made use of
the rich EU compliance and EU preliminary ruling literature as well as the human
rights literature in order to extract a set of the most prominent hypotheses on coun-
try-related variation of Court judgments. These hypotheses were subsequently put to
an empirical plausibility probe concerning negative judgments of the ECHR. This
revealed a series of interesting findings.
First, also irrespective of the extent to which the infringement procedure of the
CoE was legalized, socialization effects do not take place. It is not the case that
being in the CoE for a longer period of time reduces misinterpretations of the
Human Rights Conventions and leads, thus, to a lower probability of the ECHR
issuing adverse judgments.
Second, insights travel from the EU to the CoE, but only to some extent. Particu-
larly, the enforcement hypothesis holds with respect to the ECHR. This not only
suggests that more powerful states are less likely to be deterred by adverse Court
rulings, but also that the ECHR is not reluctant to issue judgments against powerful
states. This effect is robust over time and is not affected by the increase in legali-
zation of 1998, in which the ECHR became more independent from the member
states.
Third, most of the other compliance hypotheses do only travel to some extent
from the EU to the CoE. Most notably, the findings for the misfit hypothesis and the
social mobilization hypothesis are systematically supported under conditions of high
legalization of the CoE’s non-compliance procedure. Prior to 1998, accused states
could de facto prevent cases from reaching the ECHR, which is no longer possible
since the 1998 reform. In the post-1998 period, mismatch matters as more democ-
racy reduces judgments on human rights violations, while a decrease in democracy
significantly increases the likelihood of such ECHR judgments. In contrast, in the
166
D. Panke

pre-1998 period, an increase in democracy did not reduce but in fact significantly
increase the probability of adverse ECHR judgments. This suggests that there is
variation in the usage of gatekeeper roles with less democratic countries blocking
cases from reaching the Court more often. Similarly, while a mobilized civil society
pushes governments into compliance with international human rights, they are espe-
cially effective in doing so when governments know that they cannot prevent human
rights violations from being brought before the ECHR.
The ECHR is of great interest for proponents of the legalization approach, as it
offers a natural experiment. Due to limited access and limited independence, the extent
of legalization was low in the pre-1998 period and high after the 1998 reform. This not
only led to an increase in the number of non-compliance rulings of the Court but also
shows that some of the state of the art compliance hypotheses can best be empirically
examined under conditions of high legalization. The discrepancy with human rights is
the lower, the more democratic countries are; and lesser discrepancy between regional
rules, norms and values and domestic rules, norms and values should lead to fewer
violations and fewer ECHR judgments. Yet, this reasoning only applies to conditions
of high legalization. In contrast, in low legalization environments in which countries
with high levels of mismatch can use their formal role to block cases from reaching the
Court, an increasing mismatch between regional and domestic norms, rules and values
might still lead to an increase in actual violation of the Human Rights Convention, but
does not lead to a corresponding increase in Court cases.
In sum, although the absolute number of judgments on non-compliance of the
ECHR increased sharply over time, this does not signify an increasing non-com-
pliance problem and a worsening of human rights standards in the CoE or among
the 47 CoE member states. Instead, the rise in the number of negative judgments is
due to the increase in the extent of legalization in 1998. Broader access to the Court
combined with a (new) inability of states to block cases from reaching the Court led
to an increase in cases brought to Court.

Appendix

See Tables 4 and 5.

Table 4  Descriptive statistics
Observations Mean SD Minimum Maximum

Political constraints 1376 0.429 0.14 0 0.72

Administrative capacities 1361 0.023 0.02 0.006 0.159
Socialization 1641 22.205 15.639 1 57
Extent of democracy 1246 30.838 8.687 0 49
Power 1361 291.171 503.788 0.661 3073.86
Social mobilization 969 11.42828 2.64756 2 14
Size 1627 18,500,000 26,500,000 23,463 148,000,000
The European Court of Human Rights under scrutiny: explaining… 167

Table 5  Full model regressions with 2-year time lags

Time lag: 2 years Model 1 Model 2 Model 3 Model 4 Model 5 Model 6

Political constraints 0.334 1.045** 1.543***

(0.313) (0.355) (0.367)
Administrative 102.787*** 116.206***
capacities (5.490) (7.513)
Socialization 0.091*** 0.056***
(0.004) (0.003)
Extent of democracy 0.004 0.022***
(0.006) (0.006)
Power 0.001*** − 0.001***
(0.000) (0.000)
Social mobilization − 0.050* − 0.055**
(0.020) (0.019)
Size − 0.001*** − 0.001*** − 0.000
(0.000) (0.000) (0.000)
Constant − 1.991*** − 1.876*** − 2.087*** − 2.116*** − 1.557*** − 0.638*
(0.160) (0.187) (0.182) (0.084) (0.243) (0.261)
N 1341 1233 1219 1361 965 965
BIC 5922.292 5026.567 5529.178 5963.686 5069.085 5315.793

Clustered standard errors (countries) in parentheses

*p < 0.05; **p < 0.01; ***p < 0.001

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Diana Panke  is Professor of Political Science and holds the Chair in “Multi-level Governance” at Albert-
Ludwigs University of Freiburg. Next to questions of legalization and compliance, her research interests
include international negotiations, international norms, multilateral diplomacy, comparative regionalism,
the institutional design of international organizations, small states in international affairs, governance
beyond the nation-state, and European Union politics.