Confronting Authoritarian Practices Through Procedural-Based Review: The Case of the Polish Rule of Law Crisis

Abstract This article examines how the European Court of Human Rights (ECtHR or Court) has responded to authoritarian practices that seek to undermine judicial independence, particularly in the context of the Polish rule of law crisis. In contrast to the existing scholarly attention to and emphasis on the subjective right to judicial independence and ulterior purpose doctrines as response mechanisms to these particular authoritarian practices, this article finds that the principle of legality, understood as a ‘procedural’ as well as a ‘substantive’ notion under the European Convention on Human Rights, has done most of the heavy lifting in this context. The article argues that the procedural side of this bifurcated approach to legality may be conceptualised as a new form of procedural-based review in the Court’s broader case law, coining the term ‘procedural legality’, and further notes the unexpected role for procedural-based review in the context of autocratisation.