A provocative new article published in the European Human Rights Law Review by Thomas Hochmann, who holds a doctorate in public law from the University of Paris 1 Panthéon-Sorbonne, delivers one of the most uncompromising critiques yet of the European Court of Human Rights’ (ECtHR) growing reliance on the principle of subsidiarity—and of how that principle can be manipulated by authoritarian regimes to shield themselves from accountability.
Entitled “Judge Yüksel’s Way: Bad-Faith Regimes and the Dangers of Subsidiarity,” Hochmann’s 20-page study examines the jurisprudence of the Turkish judge at the ECtHR, arguing that her opinions illustrate how autocratic governments can exploit legal formalism to protect repressive practices under the guise of judicial reasoning.
From the “Age of Subsidiarity” to the Age of Illiberalism
Hochmann situates his critique within what he calls “the age of subsidiarity”, a period marked by judicial restraint and increasing deference to national authorities. This model, he notes, depends “entirely on the good faith of the Member States,” a premise that collapses when faced with regimes acting in bad faith—those that violate rights massively while maintaining the appearance of legality.
Such states, Hochmann writes, “engage in large-scale violations of human rights while acting under colour of law.” They rely not on brute force but on “legal persecutions,” eroding the independence of the judiciary and using legal form to cloak repression.
“The authoritarian nature of the Turkish regime has been well documented,” Hochmann observes, arguing that applying subsidiarity to such systems “pretends to ignore reality.”
A Systematic Exploitation of Subsidiarity
Since her election in 2019, the Turkish judge has attached thirty-three separate opinions to ECtHR judgments concerning Turkey—an unusually high number, revealing a consistent interpretative approach. Hochmann’s systematic review concludes that these writings show how “the idea and the language of subsidiarity can be used to circumvent the Court’s control.”
He argues that the judge’s opinions support, not overtly but subtly, “the authoritarian drift that has been in place for several years in Turkey.” Judge Yüksel’s opinions reframe serious violations as “merely procedural” or “insufficient reasoning”, suggesting that domestic courts could have reached the same repressive outcomes with better justification.
“Judge Yüksel’s position seems to be that the Turkish authorities could continue on the same path as long as they take care to cite more extensively the case law of the ECtHR,” Hochmann writes. “There is therefore a risk that national authorities will cite the Court in a ‘cosmetic’ way, without this changing the ultimate sense of their decisions.”
This application of subsidiarity, he warns, turns compliance into appearance—where quoting Strasbourg jurisprudence becomes a substitute for respecting it.
Hochmann adds that “Strasbourg case law can be quoted to support a wide variety of findings,” noting that the Turkish judge’s references to “responsible journalism” have, paradoxically, been used to justify leniency toward the arrest of journalists.
“One can emphasise, citing the Court, the extended freedom of expression that journalists must enjoy, and at the same time approve of the long imprisonment of an author who casts doubt on the official discourse concerning the failed coup d’état.”
Process-Based Review: Violations as Procedural Errors
Under the process-based review model, the ECtHR defers to national authorities if their reasoning shows sufficient engagement with the Convention. Hochmann argues that this method becomes dangerous in illiberal settings: it rewards appearances of compliance rather than substance.
In Kılıçdaroğlu v. Turkey, for example, the ECtHR found a violation of freedom of expression after the opposition leader was ordered to compensate then–Prime Minister Erdoğan. The Turkish judge, however, argued that the Court should have found “only a procedural violation”, implying that with slightly improved reasoning, domestic courts could have reached the same decision.
A similar logic appears in Osman Kavala v. Turkey, where she agreed that there had been a violation of Article 5(1) but only “on the procedural ground stemming merely from the lack of adequate reasoning provided by the domestic courts.”
This approach, Hochmann argues, reduces grave rights violations to stylistic defects, treating detentions and prosecutions as errors of reasoning rather than abuses of power.
He also notes a consistent reluctance to compensate victims:
“Reluctance to compensate the applicant is a constant in the separate opinions of Judge Yüksel. Even when she agrees to perceive a violation of the Convention, she frequently opposes compensation.”
Deference to Domestic Assessments and the “Plausibility” of Suspicion
In politically charged cases, the Turkish judge shows marked deference to domestic courts’ factual assessments, particularly regarding pre-trial detentions.
“Judge Yüksel is reluctant to question the assessment of the national authorities as to the existence of a ‘plausible suspicion’ to place an opponent in pre-trial detention,” Hochmann notes. “In the political context of Turkey, she argues, it would be advisable to be less demanding about the plausibility of the suspicions which justify a pre-trial detention. Faced with a sufficiently carefully formulated reasoning by the national courts, ‘serious reasons’ are needed to contradict their assessment,” yet, he observes, she is reluctant to identify those serious reasons.
Such reasoning, Hochmann warns, normalises political prosecutions. In cases like ByLock, Demirtaş, and Kavala, she defers to Turkish courts’ factual findings even when those findings serve as tools of repression.
If Judge Yüksel convinced the majority of the Court, he cautions, “this use of the principle of subsidiarity with regard to an authoritarian regime would leave the hands entirely free to sufficiently astute national authorities.”
Turning a Blind Eye to Bad Faith
Perhaps the most striking criticism in Hochmann’s article concerns the judge’s consistent rejection of findings that Turkey has acted in bad faith.
“Judge Yüksel rejects vehemently any accusation of bad faith directed against domestic authorities and she turns a blind eye to legal camouflage,” Hochmann writes.
This is particularly evident in her opposition to Article 18 findings—cases in which the ECtHR identifies a misuse of power for political purposes. She rejects such conclusions in all major Turkish cases, including Demirtaş and Kavala, arguing instead that Turkey’s legal reforms were “accepted by a sovereign nation” and that the Court should defer to the domestic legal order.
Her reasonings in these cases, Hochmann concludes, “completely disarm the Court in the face of the proliferation of prosecutions: since the basis for the applicant’s detention is no longer that which has been examined by the Court, it cannot order his release.”
Cosmetic Compliance and the Loss of Victim Status
Hochmann also highlights a subtler danger: the Turkish judge’s support for a “compensatory shield” used by Turkey’s Constitutional Court.
In this scheme, the domestic court acknowledges a procedural violation, awards a small sum in damages, and thereby claims to have remedied the harm—leading the Turkish judge to argue that the applicant can no longer claim to be a “victim” under the Convention.
Judge Yüksel also supports another way of exploiting subsidiarity to circumvent the Court’s control,” Hochmann writes. According to her, once the Turkish Constitutional Court awards compensation for wrongful detention, victims lose their standing to bring cases before Strasbourg.
In practice, Hochmann warns, this reasoning allows authoritarian states to detain critics for a year or more, then shield themselves from ECtHR scrutiny with token domestic remedies.
“Judge Yüksel’s reasonings would lead a blind application of the subsidiarity principle towards authoritarian regimes: with a few formal tricks, the national tribunals devoted to the government could cover its actions.”
Conclusion: The Risk of Cosmetic Subsidiarity
Hochmann’s conclusion is unequivocal: subsidiarity works only when states act in good faith. Applied to “bad faith regimes,” it becomes a tool of complicity.
He warns that a blind reliance on process-based review risks turning the ECtHR into “a system of appearances—where quoting the Convention becomes a license to violate it.”
“The Turkish judge’s opinions show concretely how a system designed for bona fide states is not suitable for bad faith regimes,” Hochmann writes. “If the Court does not remain vigilant, the procedural phase threatens to become a system where all you have to do is pay lip service to the Court’s case law to receive a carte blanche and blithely violate the Convention.”
In the end, Hochmann’s article is less about one judge than about the fragility of the Strasbourg system itself. His message is clear: when deference replaces scrutiny, and formalism replaces substance, subsidiarity ceases to protect human rights—and begins to protect those who violate them.
Background Note: Evidence Confirms Hochmann’s Concerns
A June 2025 joint report (see below) by Human Rights Watch, the International Commission of Jurists, and the Turkey Human Rights Litigation Support Project, entitled “Defiance of European Court Judgments and Erosion of Judicial Independence: Türkiye’s Challenge to EU Founding Values and Rule of Law Standards,” provides strong empirical confirmation of the dangers Professor Thomas Hochmann identified in his critique of subsidiarity in bad faith.
The report documents that Türkiye has reached a “crisis point” of systematic non-compliance with its obligations under the European Convention on Human Rights. As of mid-2025, Türkiye had the highest number of pending ECtHR cases (22,450)—representing more than one-third of the Court’s total caseload—and remained the worst performer among Council of Europe states in implementing judgments, with 156 leading and 375 repetitive cases still unimplemented.
The report finds that Türkiye’s authorities have developed a sophisticated pattern of procedural mimicry and “appearance-based” cooperation—the very risk Hochmann warned of. According to the report, Turkish prosecutors and judges routinely issue new or overlapping criminal charges to circumvent ECtHR judgments (as in the Kavala, Demirtaş, and Atilla Taş cases), while maintaining an illusion of dialogue with Strasbourg.
It also finds that Government submissions to the Council of Europe’s Committee of Ministers are described as “superficial, symbolic and ultimately hollow,” intended to simulate compliance rather than to ensure substantive implementation.
This behaviour precisely mirrors Hochmann’s warning that “national authorities will cite the Court in a cosmetic way, without this changing the ultimate sense of their decisions.”
The HRW–ICJ report further highlights the instrumentalisation of the judiciary, the erosion of the Constitutional Court’s independence, and the use of token compensation by the Constitutional Court to argue that victims have lost standing before Strasbourg—the same practice Hochmann identified in Judge Yüksel’s reasoning. It confirms that the Constitutional Court has refused to apply ECtHR rulings in politically sensitive cases, including Yalçınkaya, Kavala, Demirtaş, and Can Atalay, and that lower courts have openly defied the Court’s authority.
The report concludes that Türkiye’s compliance has become “procedural and hollow,” noting:
“Government authorities appear to be cooperative in a procedural sense, but the content of their submissions and actions is hollow and fails to address the violations substantively.”
“This trajectory reflects Türkiye’s instrumentalization of the judiciary and the use of detention and prosecution to silence political opponents and critics, previously addressed by the ECtHR in judgments that Türkiye refuses to implement.”
In short, the June 2025 findings by Human Rights Watch and the International Commission of Jurists validate Hochmann’s central thesis: that the ECtHR’s doctrine of subsidiarity, when applied to bad-faith regimes, risks becoming a doctrine of complicity—a shield for authoritarianism disguised as judicial deference.
Categories: Turkey Human Rights Blog