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Hague Journal on the Rule of Law

, Volume 10, Issue 1, pp 111–137 | Cite as

Impact of the European Court of Human Rights on the Rule of Law in Central and Eastern Europe

  • Jernej Letnar Černič
Article
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Abstract

Central and Eastern European countries have in last decades faced several obstacles to establish full-functioning liberal constitutional democracies and the rule of law. This article studies the impact of the European Court of Human Rights on the rule of law in Central and Eastern Europe by examining reasons for high number of judgements finding violations and difficulties in executing judgements in several of Central and Eastern Europe states. It analyses the contribution of the European Court of Human Rights in Central and Eastern Europe and asks whether its judgements have provided fundamental standards in the key dimensions of the rule of law. It does so by establishing the quadruple theoretical framework of the rule of law composed of: dealing with the past violations; the independence, impartiality and fairness of judiciary; pluralism, broadmindedness and tolerance; and protections under the right to life and the prohibition on torture, inhumane and degrading treatment. Central and Eastern European states have in last decades attempted to translate the rule of law de iure within governmental institutions and beyond. They have also attempted to internalise the values of the rule of law, constitutional democracy and democratic process. Equipped with this knowledge, this article argues that the European Court of Human Rights has contributed to establishing the rule of law de iure in Central and Eastern European countries, however its impact on the rule of law has been in practice limited due to institutional and policy limitations and wide-spread conundrums relating to the separation of powers, weak institutions and corruption. Therefore its values have yet to be internalised fully in domestic settings.

1 Introduction

Almost three decades have passed since the countries of Central and Eastern Europe (hereinafter: Central and Eastern Europe or CEE) escaped from non-democratic systems and at least formally became liberal constitutional democracies based on the rule of law.1 In this period, they have aimed to establish the rule of law de iure within governmental institutions and beyond. Central and Eastern European countries have also aimed to internalise the values of the rule of law and constitutional democracy. However, stories and testimonies of institutional everyday life in those countries suggest mixed results. Only a small number of them have adopted effective measures to implement the rule of law de facto in institutional life. Most of them are still struggling with the standards adopted by the European Court of Human Rights (hereinafter: the Court or the European Court). Central and Eastern European states today therefore lead the way in states with judgements finding violations and those with the most difficulties executing judgements. This article therefore evaluates the contribution of the Court to the rule of law in Central and Eastern Europe and argues that its judgements have provided fundamental standards in the key dimensions of the rule of law de iure, how there is a lack of evidence that they have been internalised in domestic settings.

At the time of Havel’s Charter 77, nobody believed there would ever come a time for democratic change in Central and Eastern Europe, but change has indeed occurred. The Polish poet Czesław Miłosz notes at the end of his novel “The Captive Mind” that “no one thought he would live so long that he will have to pay caused injustice”.2 Impasse was the prevailing feeling in the then communist countries of Central Europe. In the mid-1970s democratic change appeared quite remote, but the seemingly insurmountable walls and vain totalitarian regimes began to crumble in the early 1980s after Lech Wałęsa gradually started to form the beginnings of the democratic movement in the Gdansk shipyards. The democratic change together with the fall of the totalitarian regimes in Central and Eastern Europe were symbolised by the demolition of the Berlin Wall and the Velvet Revolution in former Czechoslovakia,3 and gradually started to challenge the remaining totalitarianism in Central Europe.4 Without such changes,5 today these countries would probably still be dreaming of an independent and democratic states and, in turn, of the Constitution based on the rule of law.6 Although transitions were triggered and realised mostly by the democratic movements in their national fora, one cannot advance further without examining the impact of the Council of Europe and its institutions, most importantly the European Court and the European Commission for Democracy through Law (also known as the Venice Commission). Is it possible to agree with Gerards who stated that “…every single State has made fundamental, structural or systemic changes in national law and policy in response to a judgement of the Court”?7

The rule of law as protection against the arbitrary and excessive use of state power is one of the most attractive items Western liberal democracies at the end of the 1980s started to export to the countries of Central and Eastern Europe.8 At the same time, changes were also seen by the European Court, which transformed from Sadurski’s “benign paradox”9 to a fully-fledged human rights court addressing the most heinous human rights violations. As Spielmann observed, “the advent of the eastern European States transformed the life of the Court in other ways. It made this Court the largest international court in the world, and dramatically raised its international profile”.10 However, after more than 27 years, the rule of law has survived unscathed only in rare and exceptional cases. Most of these countries have encountered deep difficulties internalising the values, principles and conventions of the rule of law in everyday practice. However, recent challenges to constitutional democracy and the rule of law in Central European states such as Hungary, Poland and Slovenia and elsewhere in Central and Eastern Europe beg the question of whether and which components of the minimum core of both notions have been maintained? Many Central and Eastern European countries continue to face systematic and structural problems with implementing the rule of law. This is shown by several reports and by data on the number of judgements where at least one violation was found and the number of the European Court’s unexecuted judgements.11 Even the voices of civil society and academics suggest realisation of the rule of law de facto has not been particularly successful. The question thus arises of how then to assess the European Court’s impact on implementing the rule of law in Central and Eastern Europe?

The main research question of this article concerns the question of whether the European Court has contributed to the rule of law, constitutional democracy and democratic change in Central and Eastern Europe, and what has been its lasting effect? The academic literature on the impact of the European Court on the rule of law imparts somewhat mixed response. Some authors have assessed its positive impact to the clarification of the concept of the rule of law,12 whereas other authors have failed to find any substantial impact (in practice) of the Court on the realization of the components of the rule of law.13 This article will therefore examine which of the different strays of literature hold validity as to the Court’s impact in Central and Eastern Europe. The basic hypothesis of this article is that the Court has contributed to building the de iure rule of law framework in Central and Eastern Europe.14 However, in order to prove this the article analyses the Court’s case law concerning the selected rights. Further, few academic works have studied the Court’s impact on national systems,15 including in Central and Eastern Europe,16 yet none of them has concentrated on the general question of the Court’s contribution to the rule of law in Central and Eastern Europe. This article therefore seeks to fill this gap. As far the methodology goes, this article employs legal-historical, descriptive, explanatory and analytical methods.

In order to present the problems of the newly established Eastern and Central European democracies in managing the transition to a functioning rule of law in practice, this article analyses the European Court’s contributions to upholding constitutional democracy and the rule of law in Central and Eastern Europe. In the article’s closing part, conclusions are drawn that originate from the practices of the European Court that have been taken into consideration. The rule of law is referred to here as “…one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention […] The rule of law implies, inter alia, that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention”.17 Therefore, it includes normative and practical protections of the rights essentially needed for states to operate according to the rule of law.

This article is divided into five parts. The balance of this article is dedicated to exploring the European Court’s contributions and impact in Central and Eastern Europe. Section 2 provides theoretical foundation for examination of the rule of law in Central and Eastern Europe. Section 3 analyses the Court’s impact in the four subsections of the rule, namely dealing with the past; the independence, impartiality and fairness of judiciary; pluralism, broadmindedness and tolerance; and realisation of the rights protecting individuals’ physical integrity. In doing so, the substantive and procedural dimensions of the above issues are analysed. Section 4 offers critical analysis and assessment of the Court’s impact in Central and Eastern Europe. This enables an evaluation of which arguments are convincing and helps determine whether there has been impact to the rule of law de facto. To be clear, the argument here is that the Court has made a positive contribution to the rule of law de iure in Central and Eastern European countries, but that its impact has been to ensure the minimum preconditions for the rule to function de facto – in practice. It remains to be seen or is even doubtful whether it can efficiently address the novel challenges to the rule of law de facto in the said countries. Finally, a proposal is made for a reform along the lines of the sociological understanding of the rule of law. A note of caution: This article does not provide a comprehensive overview of the situation and standard compliance in each and every Central and Eastern European states, but aims to convey the general, systematic and structural difficulties found across the region.

2 Theoretical Foundations of the Rule of Law in Central and Eastern European Countries

This section sets out the theoretical foundations for the examination of the contributions of the European Court to the rule of law in Central and Eastern European countries. The rule of law refers to the absence of arbitrariness in the exercise of power by state authorities.18 The European Commission for Democracy through Law (Venice Commission), defines the rule of law as “a system of certain and foreseeable law, where everyone has the right to be treated by all decision-makers with dignity, equality and rationality and in accordance with the laws, and to have the opportunity to challenge decisions before independent and impartial courts through fair procedures.”19 In this way, the rule of law includes both certainty and foreseeability of legal norms, but also comprises of respect for human rights and fundamental freedoms. Peerenboom distinguishes between thick and thin rule of law.20 A thin conception refers to formal dimensions of the rule of law, including its ethical and philosophical dimensions.21 On the other hand, a thick conception indicates substantive dimension of the rule of law, which apart from elements of thin conception also includes “elements of political morality”, “forms of government” and/or “conceptions of human rights”.22 However, Raz has critically argued that “if the rule of law is the rule of good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to discover that to believe in it is to believe that good should triumph”.23 Nonetheless, this article accordingly centres on the elements of thick rule of law by constructing quadruple theoretical framework for investigating the rule of law in Central and Eastern Europe consisting of: dealing with the past violations; the independence, impartiality and fairness of judiciary; pluralism, broadmindedness and tolerance; and realisation of the rights protecting individuals’ physical integrity. Those dimensions have been selected as forming part of the core of the rule of law both de iure and de facto as they refer to its essential functioning in the specific environment of Central an Eastern Europe.

What should be noted, however, that interactions between different parts of the are not always straightforward. Tamanaha, for example, argues that “the rule of law does not, in itself require democracy, respect for human rights, or any particular content in the law”24 and that “developing the rule of law does not insure that the law or legal system is good or deserves obedience.”25 Peerenboom on the other hand argues that “a functional legal system, with a reasonably independent judiciary, is no doubt useful and most likely necessary if human rights are to be fully implemented.”26 However, he adds that “we should not hold out unrealistic hopes that rule of law will somehow magically settle deeply contested rights issues or resolve many of the interpretive and institutional issues that impede implementation of human rights or put an end to war, poverty, political stability and the other factors that are the main causes of human rights violation in the world.”27 Nonetheless, Böckenförde has argued that “the liberal, secular state is built on conditions it cannot guarantee itself”.28 He has coined the notion of the “relative homogeneity”, which is required in a (pluralistic) democracy.29 Habermas has argued that the rule of law could function even outside democracy.30 One conclusion that can be observed from this theoretical discussion is that the full exercise of the rule of law can come at the expense of some of its constituting elements. Pluralism and minority right protection can undermine other aspects of the rule of law such independence and impartiality of judiciary.31 In other words, exercising liberal democracy can undermine several component parts of the rule of law. Moreover, Krygier argues that “the rule of law is an institutional accomplishment distinct from democracy, and it serves values other than, and as well as, that of ensuring democratic contestability.”32 He contends that “that in contemporary conditions Juergen Habermas is right to argue that the two flourish together rather than apart, and so there’s something wrong in saying democracy can thrive, though it might exist, without the rule of law.”33

Everyday people in the countries of Eastern and Central Europe have increasingly complained about the state of the rule law and the quality of state authorities. They mostly do not trust the ruling power structures. Different indicators show that many countries in this area are increasingly found in the hands of strong interest groups, which have primarily pursued their own private interests.34 The Parliamentary Assembly of the Council of Europe has in 2017 adopted a resolution on the state of rule of law in selected countries of Central and Eastern Europe (“New threats to the rule of law in the Council of Europe Member States: selected examples”).35 The report expresses concern over attempts to curtail the rule of law in Bulgaria, Romania, Poland and Moldova, although parallels could be drawn in other countries of Central and Eastern Europe.36 It noted that “corruption, which is a major challenge to the rule of law, remains a widespread phenomenon in Bulgaria, the Republic of Moldova and Romania.”37 It appears that the rule of law de facto is at its lowest point after the fall of the former regimes many in Central and Eastern Europe, as their state institutions are extremely weak and often subject to various arbitrary private interests. This article therefore distinguishes between de iure and de facto rule of law. De iure rule of law refers to normative structures regulating power, whereas de facto rule of law refers the implementation of the rule of law in practice. The Court has positive contributed to the de iure normative and legal frameworks of the rule of law, which have thereafter not been fully translated into practice, which is the key criterion for the realization of the rule of law de facto.38

Since the wave of democracy swept over them in the early 1990s, Central and Eastern European countries have experienced unprecedented economic and societal development.39 Czarnota, Krygier, Sadurski argued that in the early 1990s “there was a widespread belief that problems of ‘transition’ basically involved shedding a known past, and replacing it by with an also know future”.40 Nonetheless, such development has not been accompanied by fully-fledged changes in the quality of their democratic and rule-of-law institutions.41 Most Central and Eastern European countries may therefore be characterised as having formally established democratic institutions and the rule of law, while daily encountering obstacles to substantive protection of the rule of law. On the other hand, some commentators have argued that they may share some common aspects, such as the desire for single-mindedness, authoritarianism, nepotism, cronyism and especially for the preservation and protection of the old elites’ financial and other interests.42 Some countries, particularly Central European ones, have in past decades been more successful in establishing and consolidating the institutions of the rule of law and a democratic state. Everywhere where power trumps the law, it is impossible to talk about the functioning rule of law de facto, regardless of whether it has ever been fully implemented or not. The Court’s attention has thus been directed to the Eastern European environment in which the rule of law is confronted with substantive abuse on a day-to-day basis.

3 The Impact of the European Court of Human Rights in Central and Eastern Europe

In the third decade since democratisation, Central and Eastern European states are now in the majority of states parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Individuals from those countries have turned to the European Court for alleged violations by their state of the European Convention for the protection of Human Rights and Fundamental Freedoms. In this period, the European Court of Human Rights on one hand shocked Central and European countries in that they do not sufficiently protect the European Convention for the protection of Human Rights and Fundamental Freedoms and, on the other, it has democratised European human rights protection because anyone can turn to it for help in the event of an alleged violation by domestic state authorities.

It is known that the authorities of Central and Eastern European states have encountered systematic problems in implementing the European Court’s decisions. Judgements are not being exercised in full, despite clear commitments made in domestic and international law. This practice shows that the institutions of state power have still not internalised the content of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: European Convention on Human Rights, ECHR or European Convention).43 However, in the past decades the European Court has become somewhat of a myth in the national systems of the state parties. The number of applications and reception by ordinary people illustrates that most of the population has welcomed the Court as some kind of extension of their national judicial systems. The European Court is not some distant court, acting far away behind nine mountains in the Alsatian capital, but has been regarded as a domestic one by thousands of applicants from Central and Eastern Europe who in the last 20 years have submitted their applications with it.44 It allows millions on the European continent the right to individual application when their national authorities are violating Convention rights. Figure 1, for instance, shows that the majority of judgements finding at least one violation between 1959 and 2017 in top 17 of the 47 Member States originates from Central and Eastern European countries, with some exceptions such as France, Italy, Turkey and the United Kingdom. However, those countries have been state parties to the European Convention much longer than the Central and Eastern European states, the majority of whom joined in the 1990s. Statistical data are relevant as they pinpoint at the systematic and structural problems in Central and Eastern European countries that are connected with how the rule of law, the judiciary and pluralism function.
Fig. 1

Number of judgements finding at least one violation, by states (1959–2017). Source: European Court of Human Rights, Violation by Article and by States (1959–2017), https://www.echr.coe.int/Documents/Stats_violation_1959_2017_ENG.pdf

Most judgements against Central and Eastern European states deal with violations of the right to life, the prohibition on torture, inhuman and degrading treatment; lack of effective investigation; the right to liberty and security; the right to a fair trial, particularly the length of proceedings; freedom of expression, assembly and association, and the right to an effective remedy.45 Similar data also reveal the lack of execution of the Court’s judgements in Central and Eastern Europe.46 The figures also show that the states with the greatest problems enforcing judgements are from Central and Eastern Europe.47 Moreover, the European Court merely acts by way of subsidiary protection of human rights since it only comes into play when the domestic exercise of human rights has terminated or the entire judicial protection has been exhausted.48 Any judgement finding a violation by a state therefore also provides lessons and warnings to all branches of the respective state authorities that should have respected and protected the Convention’s rights. Without the failures to protect domestic human rights, there would not be a high number of judgements against Central and Eastern European countries. The question thus emerges of why Central and Eastern European states and their courts have not completed their task of primarily protecting ordinary people’s human rights and fundamental freedoms? The answer is multi-faceted, but put briefly it encompasses ignorance, the lack of and institutional unwillingness to protect human rights by the holders of high public functions in all three branches of government.

The Court has assisted in the creation of a constitutional democracy and the rule of law in many different respects and stages ranging from dealing with the past to ensuring the respect and protection of pluralism, tolerance and broadmindedness. Spielmann argued that “accepting its core human rights treaties would be part of their transition, not the reward for it”.49 The Court has addressed systematic and structural deficiencies through ordinary judgements and pilot judgements.50 This section, without any particular order, describes and analyses its impact in the four subsection of the quadruple theoretical concept of the rule of law, namely its contributions to dealing with the past; to pluralism, broadmindedness and tolerance; to the independence, impartiality and fairness of the judiciary; and to the negative and positive protection of absolute rights to human dignity. As explained in previous sections, those areas have been chosen as parts of the quadruple concept of the rule of law due to their seminal meaning for examination of transition from formal concept of the rule of law de iure to the full-functioning rule of law in everyday institutional life in the countries of Central and Eastern Europe. It is noted that the analysis is not comprehensive due to the lack of space and extensiveness of the topic. This section highlights those violations and groups of issues and rights which have proved particularly critical for the functioning of the rule of law in Central and Eastern European countries.

3.1 Contributions to Dealing with the Past

The European Court has contributed to dealing with the past of Central and Eastern European states concerning rights as varied as the right to life and the right to private and family life in order to protect the state based on the rule of law and a constitutional democracy. This section describes and analyses its contribution concerning the establishment of mature liberal democracies concerning particular chosen rights. Recent history still haunts the present in the majority of Central and Eastern European countries. It is no secret that judges frequently encounter problems when dealing with violations from the past that have continued to haunt the present.51 However, one should note that states of Central and Eastern European countries have differently approached their totalitarian legacy. Some have attempted to remedy the past violations, whereas others have employed more conciliatory approach. Such differences are reflected also in the judgements of the Court dealing with the past.

First, foundation issues concerning the rule of law and constitutional democracies in liberal democracies in transition include whether the former collaborators of the totalitarian regime or civil servants today occupy top positions in the public administration of the current democratic countries. Certain Central and Eastern European countries already during democratisation adopted legislative measures to help state institutions prevent collaborators of the totalitarian authorities in undemocratic regimes access to the functions of the executive and judicial authorities of the new democratic state. The aim of such measures is that the former opponents of democratic principles and human rights protection cannot suddenly be converted into their most fervent defenders and occupy important public functions. The Court has in the past few years considered several cases under Article 8 and the right to vote concerning the prohibition on former officials of the secret police or totalitarian regime holding public office in the new democratic regime. It has observed that subject to procedural and substantive guarantees “a democratic State is entitled to require civil servants to be loyal to the constitutional principles on which it is founded”.52 The Court held similarly in Naidin v Romania53 and then found that the measures taken were not disproportionate and were necessary in a democratic society, that “the applicant lost the opportunity for employment in public administration. Civil servants, especially those in top positions for which he declared the complainant, express part of national sovereignty. Prohibition of employment of the complainant is not so disproportionate in relation to the legitimate aims of the state to ensure the loyalty of individuals who need to protect the public interest”.54 Generally, the Court noted in Ždanoka v Latvia that “while such a measure may scarcely be considered acceptable in the context of one political system, for example in a country which has an established framework of democratic institutions going back many decades or centuries, it may nonetheless be considered acceptable in Latvia in view of the historic-political context which led to its adoption and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might appear capable of restoring the former regime”.55 States enjoy broad discretion in regulating access to jobs in the public administration. Central and Eastern European countries face a specific historical experience that still, after 25 years, makes it difficult to transition from a totalitarian to a democratic system. If the individuals who worked under the previous regime, even after democratisation, remain in the same positions, this practice hinders or prevents an effective transition to a free democratic society. This applies even more to individuals who engaged in proven and verifiable collaboration with the former security services, which are responsible for totalitarian regimes’ systematic and widespread human rights abuses. Otherwise, it must deal with attempts to preserve the old cliques or networks, like we are witnessing in some Central and Eastern European countries, which have decided not to break with the past.

Second, the Court has also contributed to dealing with past war crimes and crimes against humanity. In Kononov v Latvia, the Court did not find a violation of Article 7 concerning the individual responsibility and conviction of Mr Kononov by the Latvian courts for crimes against humanity for summarily executing villages on 27 May 1944 in the village of Mazie Bati.56 More specifically, it observed that “it is legitimate and foreseeable for a successor State to bring criminal proceedings against persons who have committed crimes under a former regime and that successor courts cannot be criticised for applying and interpreting the legal provisions in force at the material time during the former regime, but in the light of the principles governing a State subject to the rule of law and having regard to the core principles on which the Convention system is built. It is especially the case when the matter at issue concerns the right to life, a supreme value in the Convention and international hierarchy of human rights and which right Contracting Parties have a primary Convention obligation to protect”.57 Judges Fura-Sandstrőm, Thór Bjőrgvinsson and Ziemele noted in their joint dissenting opinion in Kononov v Latvia: “Why should criminal responsibility depend on which side those guilty of war crimes were fighting on?”.58

Similarly, the Court’s Grand Chamber reversed the Court’s judgement of 16 April 2012 in the case of Janowiec and others v Russia59 and held that on 21 October 2013 it lacked jurisdiction to rule on whether Russia is responsible for violation of the procedural obligations under Article 2 of the ECHR, which protects the right to life.60 The complainants argued that the Russian authorities had not conducted an effective investigation into who was responsible for killing more than 20,000 Polish officers and civilians in the Katyń forest in May and June 1940 near Smolensk in today’s Russia. The Court held it had no jurisdiction temporal to address the alleged violations, since there was no “genuine link” between human rights violations and the entry into force of the Convention regarding a procedural State party’s obligations under Article 2.61 In other words, the Court ruled that the ECHR cannot be used for human rights violations committed before 3 September 1953, when it entered into force. It was also noted that there are no “exceptional circumstances” that would “trigger the obligation to investigate […] more than ten years before the adoption of the Convention”, and decided there were no “elements that could create a bridge to the distant past” in the period after the ECHR’s entry into force.62

Moreover, in the case of Ecaterina Mirea and Others v Romania and another 69 complaints the Court examined the (un)intentional passivity of the Romanian authorities in investigating and prosecuting violations of the right to life during demonstrations against the then communist regime held between 17 and 28 December 1989 in the Romanian cities of Bucharest, Timisoara, Slobozia and Tandarei.63 It held that the Romanian state had not carried out an effective investigation pursuant to Article 2 of the ECHR into who was responsible for the violent silencing of anti-regime demonstrations in December 1989, when more than 1000 people were killed.64 The applicants claimed a breach of procedural obligations to effectively investigate the circumstances of the deaths and injuries suffered by the applicants and their relatives. The Romanian State Prosecutor’s Office on 15 October 2015 stopped the prosecution for the alleged limitation of these criminal acts.65 The case arose from similar cases of Association ‘21. December 1989 ‘and others v Romania’ in which the Court ruled the Romanian authorities had violated the procedural obligation under Article 2 of the ECHR because the investigation and prosecution of murder did not proceed with due diligence.66 In the latter case, the Court reviewed the course of action by the Romanian authorities from the issue of the judgement till today, where it found the same procedural violations. At the same time, the Court stated that the Romanian authorities were in breach of the obligation included victims or their relatives who after 2011 were not informed in any way on the investigation’s progress.67

The European Court has over the past decade faced a number of complaints from Central and Eastern European countries that arise from their recent history. The last decade has shown that the European Court does not know how to deal with violations from the past equally and systematically, as shown by the inconsistent and confusing case law in similar cases that often leads to incomprehensibly different results. The judges have still not definitively resolved the question of whether the provisions of the European Convention on Human Rights apply to an infringement of its provisions committed before it entered into force in Central and Eastern European countries. However, most of its decisions, at least symbolically, highlight the core application of the European Convention for heinous past crimes against civilians as part of the basic rule-of-law de iure principle.

3.2 Contributions to Pluralism, Broadmindedness and Tolerance

The values of pluralism, broadmindedness and tolerance are some of the core values of the Convention system and liberal democracies. They chiefly refer to freedom of expression, assembly, association and religion, which are crucial for sustaining public debate in the liberal democracies of Central and Eastern Europe. As much as they seem self-evident, they are far from being so in the daily public discourses in Central and Eastern Europe.68 The European Court noted in the historic case of Handyside v. the United Kingdom that freedom of expression fulfils “demands of pluralism, tolerance and broadmindedness”.69 The right to freedom of expression is especially protected vis-à-vis institutions of the three branches of state government and individuals who perform public functions.

The effective exercise of freedom of expression, association and assembly is essential for the mature operation of a respective European liberal democracy. Genuine political pluralism and civil society are some of the key preconditions for a free and democratic society to function because it allows and protects the exchange of different views, positions and views. The freedoms protect collective pluralism, thus the expressing of opinions and views, along with other people. The Court has in the Central and Eastern European context very clearly set out that freedom of expression has to be broadly protected in order to realise the values of pluralism, tolerance and broadmindedness, and particularly in relation to the holders of public offices70 and has warned against the chilling effect of restricting the freedom of expression.71 States are to ensure that expression in value judgements will not be criminally prosecuted except for the most exceptional cases.72 Moreover, the Court reiterated on several occasions that states have positive obligations to ensure pluralistic freedom of press. More specifically, it held in Malone v Moldova that “in the light in particular of the virtual monopoly enjoyed by TRM over audiovisual broadcasting in Moldova, … State authorities failed to comply with their positive obligation. The legislative framework throughout the period in question was flawed, in that it did not provide sufficient safeguards against the control of TRM’s senior management, and thus its editorial policy, by the political organ of the Government.”73 Further, the Court also protects freedom of expression of judges and civil servants, also where they highlight structural and systematic problems within the government branches they work.74 More specifically, the applicant in Kudeshkina v Russia stated “instances of pressure on judges were commonplace” and therefore observed “this problem had to be treated seriously if the judicial system was to maintain its independence and enjoy public confidence”.75 In short, there is a pressing social need in democratic societies, especially in transition, to enable and protect public debate on the quality of the judiciary’s functioning because the public so directly and indirectly controls the quality, independence, impartiality and integrity of its work.

The Court has also insisted on the protection of association and assembly in Central and Eastern Europe by arguing that “the protection of opinions and freedom to express them is one of the goals of freedom of assembly and association enshrined in Article 11. This is especially so in the case of political parties, given their critical role in ensuring pluralism and the proper functioning of democracy”.76 As for the freedom of assembly, domestic legislation that defines and regulates it must be sufficiently predictable, clear and precise, thereby resulting in clear rights and obligations.77 If participants in demonstrations resort to weapons and violence that would also exceed the protection of the right to freedom of assembly, which is protected only whilst ever the gathering takes place peacefully and without prejudice to the other protected values. When there is violence against the actors, public authorities or protected objects, the national authorities can restrict freedom of assembly in order to protect public order, national security or other reasons exhaustively listed. National authorities have a positive obligation to prevent all violent interventions in a peaceful gathering, such as beating or using weapons against peaceful demonstrators.78 More importantly, states also carry negative obligations because their repressive authorities are not allowed to violently prevent demonstrations, detain persons without a reason or even to attack demonstrators. Freedom of assembly protects the participants and the organisers even after the gathering comes to an end, as they cannot be detained without a real reason.79 Police intervention is justified if a state proves there was a pressing social need for aggressive intervention in the demonstration. Where such evidence is not furnished, the Court finds that the measures were used inappropriately and disproportionately, infringing freedom of assembly and expression.80 Member States should also refrain from prosecuting participants in peaceful demonstrations. The use of criminal or administrative sanctions for participating in a demonstration is disproportionate and inappropriate in a democratic society.81 States bear the burden of proof in explaining the events. Freedom of assembly protects even sporadic gatherings, resulting in time in a public place or through social networks. States have a positive obligation to also protect such gatherings if conducted peacefully and non-violently.82 States must provide the conditions to organise a peaceful gathering.83 In the case of Kasparov and others in Russia (no. 2), the judges found that Russia had violated the right to freedom of assembly of the former chess world champion and opposition leader and his colleagues when in November 2007 the Russian authorities prevented their access to demonstrations.84 The Court found violations of the right to freedom of assembly, the right to liberty of some complainants and a breach of the justified restriction of individual rights. Similarly, it happened in the case of another Russian, the late opposition leader Boris Nemtsov, who was detained on trumped-up charges, in an otherwise peaceful demonstration.85

All in all, the normative protection of the right to freedom of expression, assembly and association belongs to the core of the rule-of-law principle. The fundamental values of pluralism, tolerance and broadmindedness are crucial for the functioning of a free democratic society. They are some of the fundamental rights associated with the operation of the modern rule of law. It is connected with the right to freedom of expression that is protected so that more people express their views in a public place. The number of cases from Central and Eastern Europe concerning those values coupled with the high number of non-executed judgements shows that the Court’s impact has been more by way of establishing and clarifying democratic standards and the rule of law de iure, whereas it has been unable to influence the internalising of pluralistic values and application of the rule of law in everyday practice.

3.3 Impact on the Independence, Impartiality and Fairness of the Judiciary

Since becoming democratised, the countries of Central and Eastern Europe have faced dilemmas86 concerning how to effectively ensure judicial independence, impartiality and accountability.87 How should the transition societies seek a fair balance between the autonomy of judicial self-government and the legitimate requirements of the other two branches of government under its control and responsibility in a way that satisfies the rule of law?

The judiciary’s independence, impartiality and fairness have been the backbone of a democratic state based on the rule of law. Article 6 of the ECHR constitutes one of the rights most invoked regarding Central and Eastern states. The Court has therefore contributed to improving systemic and widespread problems in proceedings.88 It has confirmed that access to a fair trial includes attempts to maintain both the internal and external independence of the judiciary.89 More specifically, the Court noted in Parlov Taklčič v. Croatia that “judicial independence demands that individual judges be free not only from undue influences outside the judiciary, but also from within. This internal judicial independence requires that they be free from directives or pressures from the fellow judges or those who have administrative responsibilities in the court such as the president of the court or the president of a division in the court…”.90 Further, the Court noted in Baka v Hungary concerning the Supreme Court’s President’s dismissal that: “…in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law. This concept, which is expressly mentioned in the Preamble to the Convention and is inherent in all Articles of the Convention, inter alia requires that any interference must in principle be based on an instrument of general application. The Venice Commission has also held in relation to the applicant’s case that laws which are directed against a specific person are contrary to the rule of law (footnotes omitted)”. 91 It continued that “the premature termination of the applicant’s mandate as President of the Supreme Court was not reviewed, nor was it open to review, by an ordinary tribunal or other body exercising judicial powers. This lack of judicial review was the result of legislation whose compatibility with the requirements of the rule of law is doubtful … the Court considers that the respondent State impaired the very essence of the applicant’s right of access to a court (footnotes omitted)”.92 The Court also pointed out the duty of the state to protect judges who have drawn attention to internal problems within the judiciary with the aim to improve it.93 Further, the Court identified several systematic and structural problems in several Central and Eastern European countries concerning excessive length of proceedings,94 non-execution of judicial decisions95 and lack of domestic remedy.96

The European Court has thus in the past two decades certainly made an outstanding contribution to establishing the standards of a legal and democratic state, especially in the legal environment in which both the judicial system and society at large have not yet internalised the fundamental values of human dignity, pluralism, tolerance and broadmindedness. On the other hand, the European Court’s impact is limited because it can only establish and form certain minimum standards.97 The legitimacy of its work is defended and improved solely via convincing explanations. It is more difficult to convince governments and populations that these values and rights must also be internalised. Arguably, the Court has not substantially affected the judicial style and thinking among domestic institutions. Ziemele accordingly argues that there is no doubt that “…in some Central and Eastern European countries even more fundamental issues, such as the independence of the judiciary and relevant guarantees, are still in need of serious work…”.98 Moreover, Zobec and Letnar Černič state concerning Slovenia (but which can easily be extended to other CEE countries) that “its judiciary is characterised by a lack of mental and intellectual independence, lack of free, open, and courageous legal (as well as democratic) thought and internal autonomy of judges”.99

The process of identifying fundamental values mainly depends on the population of Central and Eastern European countries. The biggest problem remains how to do away with the remnants of the “homo sovieticus” and how to recover the identity of Central and Eastern Europe, which according to Milan Kundera’s essay “The Tragedy of Central Europe” was mutilated in 1948. There is also the radical “homo sovieticus”, a concept coined by Aleksandr Zinoviev to describe that situation where the state authorities of Central European countries still have a problem, reveal fading values and rule-of-law institutions. These are not usually subject to the law but to the arbitrary power of influential social interest groups. In his article “Survival of the Third Legal Tradition?”, Alan Uzelac states that the characteristics of post-communist legal systems and their judiciary are an authoritative mentality, legal formalism and inner dependence.100 Such characteristics can be seen in recruitment, promotion, the functioning of judicial councils101 and the day-to-day performance of judicial tasks.102 Similar problems in the daily lives of post-communist societies were recently observed by Alenka Kuhelj and Bojan Bugarič.103 These and other experts have for decades pointed to difficulties in ensuring the judiciary’s independence in post-communist countries that can be found just outside the judiciary, but also within.

Realising the fundamental values and Convention rights concerning independence, impartiality and fairness of the judiciary in Central and Eastern European states primarily depends on the people who exercise the functions of government on a daily basis.104 It is conditional on the occurrence of the merits of groups of experts to resolve the respective public affairs, as Max Weber wrote already over a century ago, on the basis of merit, integrity, independence, impartiality and professionalism. The Court has in Central and Eastern European countries abetted in establishing of formal structures of the rule of law de iure, however it has been less successful in translating the liberal values into the day-to-day functioning of their domestic judicial systems or in other words, the rule of law de facto.105

3.4 Contributions to the Negative and Positive Protections under the Right to Life and the Prohibition on Torture, Inhumane and Degrading Treatment

Central and Eastern European countries have in the past decades encountered difficulties upholding both substantive and procedural obligations under the right to life and the prohibition on torture, inhumane and degrading treatment. Those cases range from instances of domestic violence, treatment of asylum applicants to the conditions in detention centres and prisons addressing both procedural and substantive obligations. The Court held that Central and Eastern European states have positive obligations to protect individuals’ human dignity through police violence,106 humane and non-degrading treatment of detainees,107 prisoners108 and asylum applicants.109 In numerous judgements, the Court has emphasised that States must make significant efforts to ensure that there is no interference with the right to life and the prohibition of torture, inhuman and degrading treatment and/or punishment and where this still occurs they are obliged to conduct an effective investigation.110 They have positive obligations of conduct to prevent violations of individual human dignity.111 More specifically, in the case of Đorđevic v Croatia concerning the ill-treatment of a disabled student the Court observed that “the findings of the police were not followed by any further concrete action: no policy decisions have been adopted and no monitoring mechanisms have been put in place in order to recognise and prevent further harassment”, whereas the Court noted “the lack of any true involvement of the social services and the absence of any indication that relevant experts were consulted who could have given appropriate recommendations and worked with the children concerned”.112 It therefore found “the competent State authorities have not taken all reasonable measures to prevent abuse against the first applicant, notwithstanding the fact that the continuing risk of such abuse was real and foreseeable”.113 The Court has on many occasions emphasised that states are obliged to investigate all alleged violations of Convention rights concerning, for instance, war crimes, crimes against humanity and police violence or its passivity.114

States can easily meet their obligations by carrying out diligent and effective investigation by judicial authorities in the background of the crimes.115 The state must protect the evidence, examine witnesses, carry out forensic investigations and protect the rights of vulnerable victims.116 Such investigations should be carried out independently and impartially.117 Equally, it is important that the state has a positive obligation to protect the victim’s personal integrity during the investigation and criminal proceedings in such a way that is consistent with the right to respect for private and family life.118

Overall, the statistics show that states still encounter difficulties in ensuring to the minimum degree the respect of procedural and the substantive guarantee of the rights governing the physical integrity of individuals. These are the lowest denominators states must ensure in daily practices of either the operation of the police and military forces or the conduct of private actors. However, recent judgements and complaints alas illustrate that these standards have been implemented only in the rule of law de iure frameworks, and have yet to be fully internalised in the exercise of the rule of law de facto.

4 Analysis and Assessment of the Court’s Impact in Central and Eastern Europe

What can be concluded from the case law of the Court it is that it has set out foundational de iure principles for the functioning of the rule of law and constitutional democracies in Central and Eastern Europe in a wide range of areas. Of course, our analysis, as noted earlier is not comprehensive, however it attempts to offer an insight into the impact of the Court on the four examined areas, which are crucial for proper functioning of the rule of law also in practice in Central and Eastern Europe. The Court is not a policy court and cannot on a daily basis change policy directions in particular Central and Eastern European states. Nonetheless, through individual applications it can contribute to changes in direction, perhaps democratic and rule-of-law changes, particularly if the violations are systematic and structural in nature. The discussion in the preceding section illustrates that the Court has contributed to the rule of law de iure in many respects ranging from the functioning of state repressive organs to the functioning of the judiciary.119 Yet it seems that those values have not been internalised in most Central and Eastern European countries and the rule of law de iure has not been translated in the rule of law de facto in CEE countries.120 This is not characterised by a move to illiberal governments in quite a substantial number of states, as described in detail by some other contributors to this special issue,121 but also in the statistics of application and judgements delivered by the Court, with most coming from Central and Eastern Europe, and various indicators assessing for example the quality of the judiciary. In addition, this can be seen from the low number of executed judgements. The Court’s long-lasting effect would be stronger if the CEE countries were to guarantee the rule of law also in practise by internalising the main values of the Convention system. Of course, there are exceptions in countries such as Germany, Estonia, Lithuania, Latvia and elsewhere. For this to become realisable, the Convention has to be absorbed within the internal values of the individuals holding public posts.

Why is there such a poor level of compliance with the Convention and even poorer execution of judgements in Central and Eastern Europe? The reasons can be placed in three categories. First, several reasons for the Court’s small impact can be found in the failures of judiciaries to ensure fair, impartial and independent proceedings. Central and Eastern European countries have not been the most successful in ensuring the qualitative functioning of the rule of law in practice of different institutions of judicial branch of government. Most of them have not effectively prevented the conflict of interests and/or appearance thereof in the exercise of the right to fair trial. Only a few countries have made a clean break from the past judicial systems. Some of the highest domestic courts have made statements about the quality of the legal systems under the previous totalitarian systems. The Constitutional Court of Slovenia, for instance, observed that “[…] the former Yugoslav system […] did not put human rights at the forefront and did not define any clear legal restrictions for the state authorities and their violence. Thus, it made arbitrary government possible […]”.122 Moreover, it noted that the former system “did not function as a state governed by law and that within it human rights were grossly violated”.123 Further, former Constitutional Court Judge Lovro Šturm noted in his concurring opinion in case No. U-I-121/97 that all individuals under the former regime were “subject to sustained and systematic threats to human rights and fundamental freedoms”.124 This was confirmed by the majority in Constitutional Court Decision No. U-I-69/92, where it observed “a state whose authorities had after the end of the war carried out mass executions of former military and current political opponents, legally unacceptable trials followed by death penalties, illegal seizure of property, obstruction and liquidation of political parties in violation of its own legal system etc., thus making the injured parties afraid, with good reason, for their lives in case of residing in such a country”.125 However, such a clean break was never fully achieved among the judicial elites.

Most judges have remained in their positions after the demise of the totalitarian systems.126 Most of those judicial systems may be characterised for their authoritarian mentality, formalism, submissiveness, political correctness and, even the judges’ self-censorship.127 The Czech Constitutional Court observed in Decision No. 163 that “the history of the twentieth century relating to the existence of the totalitarian states proved that mechanical identification of the law with legal texts had become a welcome tool of the totalitarian manipulation. It made the judiciary a submissive and unthinking instrument in the enforcement of totalitarian power”.128 Such features are common across Central and Eastern Europe and are reflected in the high number of applications to and judgements by the Court and deficiencies in the executing judgements.129

Second, there has been a lack of knowledge about the Convention and the case law of the European Court. The reasons for poor implementation of the Convention in the CEE countries’ legal orders so cannot just be found in the normative system, but in the judiciary’s deficient knowledge of ECHR law. Appropriate measures, such as awareness and law enforcement ECHR change in legislation, the solution of structural problems, which shows in the number of judgements against CEE countries, as well as any change in legislation in the fields, where according to the case law of the Court, there is the possibility of the Court finding a violation, this could result in a lower number of convictions before the Court and help increase confidence in the judicial systems of the countries of Central and Eastern Europe. In particular, it is necessary to change the mentality of the judges of CEE Europe, to internalise the values and rights enshrined in the European Convention and to begin actually applying the case law of the European Court in their daily work. Regular courts are those that should primarily protect the rights and values of the European Convention since the European Court in Strasbourg only operates as a subsidiary body of protection. For this purpose, it is necessary to educate the judges of ordinary courts so they know exactly the case law of the European Court and can also apply it in specific cases. The same must be applied to the other two branches of government to ensure they are aware of their obligations in terms of preventive efforts as well as respecting and protecting human rights.

Third, most domestic systems have, as the figures show, failed to internalise the values of the European Convention, most importantly subsidiarity. The whole Convention system is based on the principle of subsidiarity, meaning that the rights are best protected at home. However, the European Court has often acted not as a subsidiary protector, but as “first instance jurisdiction”.130 Additionally, the European Court has been through its case law promoting and advancing values of liberal democracy, which may contradict with illiberal values, which are still present in Central and Eastern Europe.131 The high numbers of judgements finding at least one violation stemming from Central and Eastern Europe can be also explained with the rejections of those liberal values as they conflict the prevailing values in the region.

In order to improve the main backbone of the Convention system, Central and European states must show greater interest in the systematic training of government officials, lawyers and especially judges who are expected to apply the Convention in the domestic system on a daily basis. The opportunity to acquire new knowledge is certainly there in pro bono representation of clients before the Court and in the education of young lawyers. To that end, all branches of government should organise special trainings in order for stakeholders to become aware and educated on the use of case law, particularly attorneys representing Central and Eastern European countries before the European Court. In other words, it is necessary to internalise the principle of subsidiarity of the European Court. The Convention should be applied on a day-to-day basis at all levels of the judicial, legislative and executive branches of government. Such a practice would help avoid the situation of the Court’s judgements being overlooked and ignored. Especially important is the awareness of lawyers as the most important protagonists of that role. It should be placed in the heart of undergraduate and graduate study programmes of law so that the Convention and the Court’s case law can be monitored by young lawyers from the start to the end of their careers, whether in the public or private sector. In other words, people need to internalise the values of the Convention, wherever they encounter it.

In summary, the Court’s impact in Central and Eastern Europe cannot be underestimated. It has contributed to forming of normative orders based on the rule of law and protection of human rights. It has established the rule of law framework de iure, in which the state institutions now operate in Central and Eastern Europe. On the other hand, its influence has been limited, since it has not been possible to convince the domestic elites to internalize the values of the Convention and to fully establish the rule of law de facto.

Yet, where it has fallen short, it has been due to daily adherence to the same standards in drafting policies, laws and adopting judgements in national courts. On the other hand, one must concede that the Court does not have a magic stick with which to overnight change the old practices, informal networks and mentality that still considerably linger in the region. To be fair, the Court has encountered the limits of its judicial function to bring about internalised changes in Central and Eastern Europe.

5 Conclusions

Challenges for the Central and Eastern European states have included how to effectively implement all facets of the rule of law or how to turn it into a boring, as Martin Krygier has put it, “Australian television lemonade series”.132 This article attempted to analyse the contribution of the European Court to the rule of law in Central and Eastern Europe by developing quadruple theoretical framework comprising of dealing with the past violations; the independence, impartiality and fairness of judiciary; pluralism, broadmindedness and tolerance; and protections under the right to life and the prohibition on torture, inhumane and degrading treatment. It has argued that it has established key normative standards in the key areas of the exercise of the rule of law, however the rule of law de iure has not been fully translated into everyday institutional life of Central and Eastern European countries.

More specifically, the European Court has in the past two decades construed robust minimum standards in the form of the lowest common denominator for the protection of human rights and fundamental freedoms. This article has examined this standard setting in areas dealing with the past; pluralism and tolerance; functioning of a fair, impartial and independent judiciary; and protections of the right to live and prohibition on torture, inhumane and degrading treatment. However, the institutional elites in some Central and Eastern European states demonstrate that those standards have been unwelcome in most cases, even though subsidiarity is the main pillar of the Convention system. It has illustrated that the Court has contributed to the rule of law de iure frameworks, whereas such normative structures have not been translated into practice and translated in the rule of law de facto. Such a transition appears quite troubling, or even impossible, in the current practice of most Central and Eastern European countries. Therefore, the fully-fledged exercise of the rule of law in Central and Eastern Europe currently remains more a myth than a reality. If the Court would have to remedy domestic failures of the member states, such pattern would call into the question the main principle of the Convention system, subsidiarity. In the future, Central and Eastern European states therefore need to strive to come closer to European standards as seen in mature constitutional orders in order for the Court to focus on fine-tuning rather than remedying structural deficiencies.

Central and Eastern European democracies have in the last few decades progressed from totalitarian, or at least authoritarian, to formally democratic legal systems. Their previous regimes maintained their power through intimidation of ordinary people who were often pressured to spy on each other. The state apparatus supervised everything occurring in the country. Yet the transition to a state based on the rule of law has proven to be challenge for most countries in the region. One could contend that it is time for the effective and equal protection of human rights in Central and Eastern European society to become routine, unexciting and a fait accompli. Central and Eastern European states should in the next two decades cease topping the charts regarding the number of judgements finding at least one violation of the Convention rights. The results of Central and Eastern European states before the European Court should over the next 20 years become as dull as Mexican telenovelas by strengthening domestic human rights systems. Complaints from the region will still arrive in the European Court, but should be limited to the most difficult cases where the national courts face a real dilemma on how to decide in a specific case, where the Court has to apply the proportionality test to determine what is necessary in a democratic society. Such practices and patterns will thereafter eventually lead to greater confidence in the functioning of domestic courts. Making this happen primarily depends on improving the fairness, impartiality and independence of the functioning of institutions in Central and Eastern European states and of society at large. In other words, reversing the systemic problems and improving the protection of human rights and fundamental freedoms in a particular state is primarily a responsibility of the institutions and residents of that state.

Today, the European Court remains the last hope for many behind the former Iron Curtain who resist the daily patterns of the authority of power, obedience, excessive formalism and nepotism which are so imbued in some domestic systems. However, it is essential to note that the Court has planted the seeds for the functioning of a democracy and the rule of law de iure in Central and Eastern European countries. Simultaneously, the European Court reminds the states of Central and Eastern Europe that it is time to forget the old practices and replace them with the meritocratic and creative functioning of democracy and the rule of law de facto that will create confidence in its independence and the impartiality and fairness of the decision-making process, thereby enabling individuals from Central and Eastern Europe to find justice in their domestic systems, and not along the avenue of human rights in Strasbourg.

Footnotes

  1. 1.

    This article refers to Central and Eastern Europe states as those states from Central and Eastern Europe which are member states of the Council of Europe.

  2. 2.

    Miłosz (1953).

  3. 3.

    Kundera (1984).

  4. 4.

    Letnar Černič (2012).

  5. 5.

    Ibid.

  6. 6.

    Jančar (1991).

  7. 7.

    Gerards (2016), p. 2, https://treatiesofnijmegenmedal.eu/wordpress/wp-content/uploads/2016/11/Speech-Janneke-Gerards-The-Transformative-Power-of-the-European-Court-of-Human-Rights-2016-English.pdf. Also see “Strengthening Subsidiarity: Integrating the Strasbourg Court’s Case law into National Law and Judicial Practice”, Contribution of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe to the Conference on the Principle of Subsidiarity, Skopje, 1–2 October 2010, document AS/Jur/Inf (2010) 04, available at: http://assembly.coe.int/CommitteeDocs/2010/20101125_skopje.pdf.

  8. 8.

    Sadurski (2009), p. 409.

  9. 9.

    Ibid.

  10. 10.

    Spielmann (2013), p. 3.

  11. 11.

    Emmert (2009). See also Transparency International, Corruption Perception Index (2017), https://www.transparency.org/news/feature/corruption_perceptions_index_2017.

  12. 12.

    Lemmens (2015), Lautenbach (2013).

  13. 13.

    See Keller and Stone Sweet (2008a). See also Letnar Černič (2016).

  14. 14.

    See, for example, Sadurski (2014); Sadurski and Morlino (2010).

  15. 15.

    See, for example, Martinico and Pollicino (2010); Keller and Stone Sweet (2008b); Helfer (2008); Anagnostou (2013). Popelier et al. (2016). Seibert-Fohr and Villiger (2014).

  16. 16.

    Sadurski (2009).

  17. 17.

    Karacsony and Others v. Hungary, Nos. 42461/13 and 44357/13), 17 May 2016, para. 156. For more, see: Letnar Černič (2016).

  18. 18.

    Krygier (2012).

  19. 19.

    European Commission for Democracy through Law (2016), Para. 15.

  20. 20.

    Peerenboom (2005).

  21. 21.

    Ibid. See also Fuller (1969).

  22. 22.

    Ibid. 15–16.

  23. 23.

    Raz (1979), p. 211.

  24. 24.

    Tamanaha (2007), p. 18, Tamanaha (2017).

  25. 25.

    Ibid.

  26. 26.

    Peerenboom (2005), p. 151.

  27. 27.

    Ibid.

  28. 28.

    Böckenförde (1991), p. 112.

  29. 29.

    Kunkler and Stein (2017).

  30. 30.

    Habermas (1995).

  31. 31.

    Motoc and Ziemele (2016).

  32. 32.

    Krygier (2014), p. 86.

  33. 33.

    Ibid, p. 86. See also Krygier (2016a).

  34. 34.

    Transparency International (2017).

  35. 35.

    Council of Europe, Parliamentary Assembly, Resolution 2188 (2017).

  36. 36.

    Ibid.

  37. 37.

    Ibid, para. 6.

  38. 38.

    Çalı (2017).

  39. 39.

    See, for example, Berend and Bugarič (2015).

  40. 40.

    Czarnota et al. (2005), p. 1.

  41. 41.

    See, for example, Bugarič (2015).

  42. 42.

    Ibid.

  43. 43.

    Motoc and Ziemele (eds.) (2016).

  44. 44.

    Sweeney (2013), Sadurski (2009).

  45. 45.

    Data source: European Court of Human Rights, Violation by Article and by States (1959–2016), http://www.echr.coe.int/Documents/Stats_violation_1959_2016_ENG.pdf.

  46. 46.

    Letnar Černič (2015).

  47. 47.

    Council of Europe, 10th Annual Report of the Committee of Ministers, 2016, https://www.coe.int/en/web/execution/-/annual-report-2016-positive-trends-continue, pp. 57–59.

  48. 48.

    Andenas and Bjorge (2013), Drzemczewski (1983), Gerards and Fleuren (2014), Keller and Stone Sweet (2008c).

  49. 49.

    Spielmann (2013), p. 1.

  50. 50.

    Broniowski v. Poland [GC], no. 31443/96, 22 June 2004, Kurić and others v Slovenia, no. 26828/06, 26. June 2012.

  51. 51.

    Bobek (2015).

  52. 52.

    Vogt v. Germany, No. 17851/91, 26 September 1995, para. 59. See also Adamsons v. Latvia, Application No. 3669/03, 24 June 2008.

  53. 53.

    Naidin v Romania, No. 38162/07, 21 October 2014, para. 49. See also Turek v. Slovakia, Application No. 57986/00, 14 February 2006. 7 Matyjek v. Poland, Application No. 38184/03, 30 May 2006; Luboch v. Poland, Application No. 37469/05, 15 January 2008; Bobek v. Poland, Application No. 68761/01, 17 July 2007; Schulz v. Poland, Application No. 43932/08, 13 November 2012. ECtHR, Sidabras and Džiautas v. Lithuania, Applications Nos 55480/00 and 59330/00, 27 July 2004. ECtHR, Rainys and Gasparavičius v. Lithuania, Applications Nos 70665/01 and 74345/01, 7 April 2005.

  54. 54.

    Ibid., para. 54.

  55. 55.

    Ždanoka v Latvia, št. 58278/00, 16. March 2006, para. 133. Also see Adamsons v. Latvia, Application No. 3669/03, 24 June 2008.

  56. 56.

    Kononov v Lativa, Application no. 36376/04, 24 July 2008. See also Kolk and Kislyiy v. Estonia, App. No. 24018/04, ECtHR (Dec.) (17 January 2006).

  57. 57.

    Ibid, Para. 241. Also see Streletz, Kessler and Krenz v. Germany, App. Nos. 34044/96, 35532/97 and 44801/98, ECtHR (Grand Chamber) (22 March 2001).

  58. 58.

    Kononov v Latvia, ECHR (Third Section), no. 36376/04, 24 July 2008, Joint dissenting opinion of judges Fura-Sandstrőm, Davíd Thór Bjőrgvinsson and Ziemele, Para. 3.

  59. 59.

    Janowiec and others v Russia, Applications 55508/07 and 29520/09, 16 April 2012.

  60. 60.

    Janowiec and others v Russia (Grand Chamber), (55508/07 in 29529/09), 21 October 2013.

  61. 61.

    Ibid, para. 159.

  62. 62.

    Ibid, para. 160.

  63. 63.

    Ecaterina Mirea and others v Romania, no. 43626/13 and 69 other applications, 12 April 2016.

  64. 64.

    Ibid, para. 43.

  65. 65.

    Ibid, para 15.

  66. 66.

    Association‘21 December 1989’ in other v Romania, no. 33810/07 and 18817/08, 24 May 2011.

  67. 67.

    Ibid., para. 42.

  68. 68.

    Gozdecka and Kmak (2015).

  69. 69.

    1 EHRR 737, no. 5493/72, 7. 12. 1978. It observed that “information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb the state or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there can be no democratic society”, para. 49.

  70. 70.

    Mladina d.d. Ljubljana v Slovenia, no. 20981/10, 17 April 2014.

  71. 71.

    Fatullayev v Azerbaijan, no. 40984/07, 22 April 2010. Also see Uzeyir Jafrov v Azerbaijan, no. 54204/08, 29 January 2015.

  72. 72.

    Klein v. Slovakia, application no. 72208/01, 31.10.2006. Also see Letnar Černič (2007). Also see Ziembiński v. Poland (no. 2), no. 1799/07, 5 July 2016; Wizerkaniuk v Poland, no. 18990/05, 5 July 2011, para. 65, Kaperzynski v Poland, no. 43206/07, para. 74.

  73. 73.

    Malone and others v Moldova, no. 13936/02, 17 September 2009, para. 111.

  74. 74.

    See, for instance, Guja v. Moldova [GC], no. 14227/04, 12 February 2008, para. 52. Vogt v. Germany, app. no. 1785/91, 26 September 1995, para. 53. 7 ECHR, Harabin v. Slovakia, 62584/00, 29 June 2004.

  75. 75.

    Kudeshkina v. Russia, no. 29492/05, 26 February 2009, para. 95.

  76. 76.

    Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, 3 February 2005, para. 44, United Communist Party and others v Turkey, (1998) 26 EHRR 1211, para. 45.

  77. 77.

    Veniamin Tymoshenko and others v Ukraine, no. 48408/12, 2 October 2014.

  78. 78.

    Promo Lex and others v Moldova, no. 42757/09, 24 February 2015. Also see Letnar Černič (2017).

  79. 79.

    Navalnyy and Yashin v Russia, št. 76204/11, 4 December 2014. Also see Malofeyeva v Russa, no. 36673/04, 30 May 2013.

  80. 80.

    Tahirova v Azerbadijan, no. 47137/07, 3 October 2013.

  81. 81.

    Vyerentsov v Ukraine, no. 20372/11, 11 April 2013.

  82. 82.

    Primov and others v Russia, no. 17391/06, 12 June 2014.

  83. 83.

    Identoba and others v Georgia, no. 73235/12, 12 May 2015.

  84. 84.

    Kasparov and others v Russia (no. 2), no. 51988/07, 13 December 2016. See also the similar case Kasparov and others v. Russia (no. 1), no. 21613/07, 3 October 2013.

  85. 85.

    Nemtsov v Russia, no. 1774/11, 31 July 2014.

  86. 86.

    Sadurski (2005).

  87. 87.

    Kühn (2004), p. 531.

  88. 88.

    Lukenda No II. v. Slovenia, no. 16492/02, 13 April 2006.

  89. 89.

    Parlov Taklčič v. Croatia, No. 24810/06, 22 December 2009.

  90. 90.

    Ibid. Para. 84.

  91. 91.

    Baka v Hungary (Grand Chamber), no. 20261/12, 23 June 2016, para. 117.

  92. 92.

    Ibid., para. 121.

  93. 93.

    Kudeshkina v Russia, no. 29492/05, 26 February 2009. See also Harabin v Slovakia, no. 58688/11, 20 November 2012, para. 149.

  94. 94.

    Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, 10 May 2011; Rutkowski and Others v. Poland, no. 72287/10, 7 July 2015.

  95. 95.

    Burdov v. Russia (no. 2), no. Burdov v. Russia (no. 2), 15 January 2009, 15 January 2009. See also Olaru and Others v. the Republic of Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009, and Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, 15 October 2009.

  96. 96.

    Gazsó v. Hungary, no. 48322/12, 16 July 2015.

  97. 97.

    See Sajo and Losonci (1993), p. 322.

  98. 98.

    Ziemele (2016), p. 497.

  99. 99.

    Zobec and Letnar Černič (2015).

  100. 100.

    Uzelac (2010). Also see Kühn (2011), p. 147.

  101. 101.

    Volkov v Ukraine, No. 21722/11, 9 January 2013, Gurov v Modova, No. 36455/02, 11 July 2016.

  102. 102.

    See Bobek (2008), pp. 15, 16.

  103. 103.

    Kuhelj and Bugarič (2016).

  104. 104.

    See Sadurski (2009).

  105. 105.

    See Přibáň et al. (2003), p. 129.

  106. 106.

    Nachova and others v Bulgaria (Grand Chamber), nos. 43577/98 and 43579/98, 6 July 2005; Moldovan v Romania, nos. 41138/98 and 64320/01, 12 July 2005; Bljakaj and Others v. Croatia, no. 74448/12, 18 September 2014.

  107. 107.

    Mandić and Jović v Slovenia, no. 5774/10 and no. 5985/10, 20 October 2011. Vitkovsky v Ukraine, No. 24938, 26 September 2013. See also Rezmives and others v Romania, No(s). 61467/12, 39516/13, 48231/13, 68191/13, 25 April 2017, Neshkov and Others v. Bulgaria, nos. nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, 27 January 2015, and Varga and Others v. Hungary, nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, 10 March 2015.

  108. 108.

    Savenkovas v. Lithuania, No. 871/02, 18 November 2008; Alver v Estonia, no. 64812/01, 8 November 2005; Orchowski v. Poland, no. 17885/04, 22.10.2009, Norbert Sikorski v. Poland, no. 17599/05, 22 October 2009.

  109. 109.

    Varga and Others v. Hungary, nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, 10 March 2015.

  110. 110.

    Šilih v Slovenia, no. 71463/01, 9. April 2009.

  111. 111.

    Đorđevic v Croatia, no. 41526/10, 24 July 2012. See also Tagayeva and others v. Russia, application nos. 26562/07, 14755/08, 49339/08, 49380/08, 51313/08, 21294/11 and 37096/11, 17 April 2017, Orlov and others v Russia, no. 5632/10, 14 March 2017.

  112. 112.

    Ibid. Para. 148.

  113. 113.

    Ibid. Para. 149.

  114. 114.

    Skendžič and Krznarič v Croatia, Application no. 16212/08, 20 January 2011.

  115. 115.

    Popovi v Bulgaria, no. 39651/11, 09 June 2016.

  116. 116.

    S.Z. v Bulgaria, no. 29263/12, 3 March 2015.

  117. 117.

    Ibid. Also see: Moldovan an Others v Romania (no. 2), no. 41138/98 64320/01, 12 July 2005.

  118. 118.

    Y v Slovenia, no. 41107/10, 28 May 2015. See also recent cases concerning articles 5 and 18: Merabishvili v Georgia, no. 72508/13, 28 November 2017; and Ilgar Mammadov v. Azerbaijan (no. 2), no. 919/15, 16 November 2017.

  119. 119.

    See in detail Motoc and Ziemele (eds.) (2016).

  120. 120.

    Kosar and Lixinski (2015).

  121. 121.

    See, for example, contributions by Matej Avbelj and by Tatjana Papić and Vladimir Djerić.

  122. 122.

    No. U-I-158/94, dated 9 March 1995, para. 13.

  123. 123.

    Šturm (1998), p. 23.

  124. 124.

    Separate opinion of Judge L Šturm, No. U-I-121/97, dated 23 May 1997, Point 2.

  125. 125.

    No. U-I-69/92, dated 10 December 1992, paragraph 8.

  126. 126.

    Kühn (2011) p. 163. Also see Sadurski (2009), p. 409.

  127. 127.

    Ibid. Also see Uzelac (2010), p. 387. Also see Sajo and Losonci (1993), p. 322.

  128. 128.

    Quoted according to Kühn (2011), p. 145.

  129. 129.

    Mańko (2007), Manko (2005).

  130. 130.

    Ziemele (2016), p. 501.

  131. 131.

    Kymlicka and Opalski (2002). See also Banac and Verdery (1995).

  132. 132.

    Krygier (2016b). Also see Letnar Černič (2017).

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Copyright information

© T.M.C. Asser Press 2018

Authors and Affiliations

  1. 1.Graduate School of Government and European Studies, Nova Univerza in SloveniaLjubljana, KranjSlovenia

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