The Rule of Law and the Independence of Justice

This chapter identifies two vantage points for examining the Court’s account of the rule of law in response to populism, Article 6 (in particular, its ‘tribunal established by law’ and ‘access to a court’ requirements) and Article 18 (bad faith violations). It shows that in the former case the Court makes a sustained effort to bring its principles of independence and impartiality to the fore but equally fails to identify a distinct type of (infrastructural) alteration to democracy and the rule of law. In the latter case, it is argued that (the rise of) Article 18 rescues a deficient proportionality test. It calls for an enhanced test, one that can grasp and respond to infrastructural erosion.