University of Pennsylvania Journal of International Law

Publication Date

Spring 2024

First Page


Document Type



Europe has a rule of law crisis. In the past decade, Turkey, Poland, and Hungary have undermined their democratic societies and compromised the independence of their institutions by affording unprecedented strength to their executive branch and imposing severe restrictions on the public sphere. As their illiberal policies spread, so does the frequency with which individuals adversely affected by these policies seek justice before the European Court of Human Rights. In these cases, Article 35(1) of the European Convention on Human Rights requires that they first exhaust the local remedies available in their national legal system.

Article 35(1) reflects the role of the European Court of Human Rights to act as a subsidiary to Europe’s national judicial institutions and exercise a margin of appreciation for their ability to deliver a just outcome to litigants. However, this Comment shows that the principle of subsidiarity and the Court’s margin of appreciation for sovereign interests have led to an excessively formalistic interpretation of Article 35(1) in cases brought against Turkey and Hungary, leading to unjust conclusions for applicants and undermining the Court’s ability to guard against the erosion of rule of law in illiberal democracies.

If the Court is to preserve its legitimacy as an institution capable of addressing human rights violations wherever they occur within its jurisdiction, it is critical that it plays a more active role in tackling Europe’s rule of law crisis. On this matter, Article 18 offers insight into the means by which the Court can provide relief to applicants and confront any unlawfully implemented state restrictions that compromise democratic governance in Member States without entirely delegitimizing these States’ legal and political systems.