The loyal dissent: democratic backsliding and salience-conditional voting by national judges at the European Court of Human Rights

Abstract

Can the supranational institutions built to backstop domestic rule of law withstand democratic backsliding? We address this question at the bench of the European Court of Human Rights (ECtHR), where Article 26(4) of the Convention seats a judge elected in respect of each respondent state. Using the full retrievable corpus of ECtHR Chamber and Grand Chamber merits judgments with recorded votes against Council of Europe members (1990–2025), merged with V-Dem’s index of judicial constraints on the executive, we test how the elected national judge’s pro-state dissent tracks the erosion of judicial independence at home. The relationship is salience-conditional, consistent with selection, career, and interpretive channels producing selective rather than blanket state alignment: the association is significantly stronger in the Court’s own high-importance cases than on the routine docket, where the estimate is smaller and imprecisely estimated. A within-case design comparing the national judge with the other judges deciding the same operative item returns the same structure, ruling out case composition. The pattern is inconsistent with uniform blanket capture and isolates a conditional permeability of supranational review, concentrated in the Court-designated high-importance docket.

The authors' abstract, as published at the source. Democratization, 2026 · DOI ↗