The Impact of the ECHR in Central and Eastern Europe

Iulia Motoc and Ineta Ziemele have recently edited an excellent book “The Impact of the ECHR on Democratic Change in Central and Eastern Europe” (CUP, 2016). Here is its abstract :

 

9781107135024High hopes were placed in the ability of the European Convention and the Court of Human Rights to help realise fundamental freedoms and civil and political rights in the post-communist countries. This book explores the effects of the Strasbourg human rights system on the domestic law, politics and reality of the new member States. With contributions by past and present judges of the European Court of Human Rights and assorted constitutional courts, this book provides an insider view of the relationship between Central and Eastern European states and the ECHR, and examines the fundamental role played by the ECHR in the process of democratisation, particularly the areas of the right to liberty, the right to propriety, freedom of expression, and minorities’ rights.

Conference on Mass Migrations and the Rule of Law

Conference on the impact on mass migration on the local, regional, national and EU governance is organized by the Institute of Public Administration, Croatia, in collaboration and with the support from the Research Committee 05 Comparative Studies on Local Government and Politics (IPSA), the Research Committee 32 Public Policy & Administration (IPSA), the Faculty of Law, Study Centre for Public Administration and Public Finances, University of Zagreb, Croatia, and the Faculty of Political Science, University of Zagreb, Croatia and takes place between 11-14 May 2017 in Dubrovnik, Croatia.

Slovenija pred Evropskim sodiščem za človekove pravice (1994–2016) / Slovenia before the European Court of Human Rights (1994-2016)

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Knjiga »Slovenija pred Evropskim sodiščem za človekove pravice (1994–2016) / Slovenia before the European Court of Human Rights (1994-2016)« je rezultat večmesečnega dela skupine študentov in njihovega mentorja, ki so jo pro bono pripravili v okviru nastajajoče Klinike o Evropski konvenciji o varstvu človekovih pravic in temeljnih svoboščin. Kot prva takšna publikacija v slovenskem javnem prostoru predstavlja in analizira nastop in rezultate Slovenije pred ESČP od leta 1994, ko je Slovenija postala država pogodbenica, do konca leta 2016.

How to Resolve the Crisis of Constitutional Democracy in Central Europe?

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In the constitutional democracy, all of the three elements of democracy: input and output legitimacy and the political process through which they are connected, have to take place within the framework of the rule of law. Simultaneously, there can be no rule of law if the laws by which the individuals are ruled do not come into being in a democratic manner. Democracy and the rule of law thus presuppose each other, but at the same time their relationship is not entirely symbiotic. There is a dormant democratic threat that the democratic majority will trump the rights of the outvoted minorities. This is what the rule of law is there for to prevent. This counter-majoritarian problem, as it came to be known, is however only a seeming one. If democracy is not understood as a simple rule by the majority, but rather as a system of the organization of political power whose central value is the protection of equal human dignity, then the constitutional self-limitation of the democratic majority is not democracy’s denial, but its vindication.

Against this theoretical background, the Conference will focus on a very practical challenge. It will proceed from the fact that the constitutional democracy has been in an incremental, but definite decline across the European Union, but in particular and most acutely, in the Central European States. On this basis, the Conference will ask a single question:

How to redeem the status of constitutional democracy properly so-called in the praxis of Central European countries?

Friday and Saturday, 9-10 December 2016
The Graduate School of Government and European Studies and the
European Faculty of Law, Classroom 3, Cankarjevo nabrežje 11, Ljubljana, Slovenia

Friday, 9 December 2016:
16:00 Opening of the Conference:
Introduction, Jernej Letnar Černič, Matej Avbelj

Keynote Speech by Jan Zobec, Justice of the Constitutional Court of the Republic of Slovenia: “The Slovenian Conception of Constitutional Democracy”

16:45 – 18.45: Panel No. 1: The view from outside

Martin Krygier, University of New South Wales;
Andrew Drzemczevski, Former Head of the Legal Affairs & Human Rights Department of the Parliamentary Assembly, Council of Europe, Visiting Professor, School of Law, Middlesex University London;
Gianluigi Palombella, Sant’Anna School for Advanced Studies, Pisa;

Chair: Matej Avbelj

Saturday, 10 December 2016
9:00 – 11:00 Panel No. 2: The view from inside

Hent Kalmo, Deputy Chancellor of Justice (Estonia);
David Kosar, University of Brno;
Matthias Goldmann, Goethe University Frankfurt;
Renata Uitz, Central European University.

Chair: Jernej Letnar Černič

Coffee Break: 11:00 – 11:30

11:30 – 13:30 Panel No. 3: The view from inside: The Former “Yugoslav” and Neighbouring States’ perspective
Bojan Bugarič, University of Ljubljana;
Alen Uzelac, University of Zagreb;
Sara de Vido, University of Venice;
Tatjana Papić, Union University Belgrade,

Chair: Marko Novak

14:00 End of the Conference

“Making sovereign financing and human rights work” now available in paperback

Poor public resource management and the global financial crisis curbing fundamental fiscal space, millions thrown into poverty, and authoritarian regimes running successful criminal campaigns with the help of financial assistance are all phenomena that raise fundamental questions around finance and human rights. They also highlight the urgent need for more systematic and robust legal and economic thinking about sovereign finance and human rights.

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This edited collection aims to contribute to filling this gap by introducing novel legal theories and analyses of the links between sovereign debt and human rights from a variety of perspectives. These chapters include studies of financial complicity, UN sanctions, ethics, transitional justice, criminal law, insolvency proceedings, millennium development goals, global financial architecture, corporations, extraterritoriality, state of necessity, sovereign wealth and hedge funds, project financing, state responsibility, international financial institutions, the right to development, UN initiatives, litigation, as well as case studies from Africa, Asia and Latin America. These chapters are then theorised by the editors in an introductory chapter.
In July 2012 the UN Human Rights Council finally issued its own guidelines on foreign debt and human rights, yet much remains to be done to promote better understanding of the legal and economic implications of the interface between finance and human rights. This book will contribute to that understanding as well as help practitioners in their everyday work. The authors include world-renowned lawyers and economists, experienced practitioners and officials from international organisations. – See more at: http://www.bloomsburyprofessional.com/uk/making-sovereign-financing-and-human-rights-work-9781849464383/#sthash.5kBNbOL3.dpuf

Fundamental rights concerns after the recent terrorist attacks

The radical Islamic fundamentalists’ terrorist attacks on 22 March have not only rocked one of Europe’s essential cities, but spread fear to all corners of the European continent and beyond. The attacks were not coincidental since Brussels has, at least since at the end of the Second world war, symbolised the beginnings of the rule of law, the protection of human rights and pluralism on the European continent. In addition to the over 30 people who were brutally massacred and the hundreds wounded, the attacks reveal weaknesses and anomalies in the functioning of modern European societies at both ends of the philosophical and ideological spectra. The responses to the attacks that have followed in recent weeks have shown the potential Achilles’ heel of European societies.

In the first hours after the attack, without any true reflection or inspiration, voices appeared all over social media from those who for these and other reasons, often narrowly political ones, warn and frighten against the Islamisation of European societies, whereas many called for their purification and absolute protection of their public orders. In contrast, commentators at the other end of the ideological spectrum immediately argued that all blame for the terrorist attacks should be attributed to the imperialistic and neo-colonial foreign policies of the United States and the nations of Western Europe, presumably already seeded in the centuries-long colonialism. Such voices described such attacks as ordinary and even justified consequences of interference in the internal affairs of Middle Eastern nations. Yet in both of these opposing responses to the attacks, the reality is simplified and built on a dichotomy of the struggle between good and evil as, for instance, exemplified in Japanese science fiction cartoons for the youngest generation. Such contributions presented themselves as the only possible interpretation of the Brussels attacks, not allowing for any objections, let alone exemptions from the portrayed assumptions.

However, it seems that the latest terrorist attacks on European soil require deeper and more nuanced engagement and consideration. Even the fact that such streamlined responses reveal or are otherwise unable to encompass the complexity of contemporary European societies. Their purpose is different as they solely intend to mobilise both sets of groups at the extreme ends of the spectra of European societies. This radicalisation appears to have the purpose of undermining the foundations of European societies that over the centuries have subconsciously internalised values ​​such as openness, pluralism and secularism. How then does one explain the background of the growing number of attacks, and how to respond to them accordingly?

It is difficult to claim that the terrorist attacks have brought something new. Belgium has a long history of terrorist attacks on its territory, dating back to the period of its colonial wars through to today. Yet what is new is the scope and nature of the attacks and the victims, especially the complete failure and surrender of the Belgian (and other European) intelligence services that might have been able to prevent the attacks if they had proceeded more carefully and efficiently. In a diverse society such as the Belgian, with a population of several million Muslims and a number of other religious groups, there is a high probability that the terrorist threats will constantly repeat in the most extreme forms. For these reasons, the security intelligence services should act more effectively in responding to the potential threats and avoiding them.

The background to the terrorist attacks is often complex and multifaceted. They cannot be persuasively and correctly explained simply through the problems of integrating immigrants into European societies, for example, when third-generation European immigrants are still not fully integrated into the day-to-day workings of, for instance, Belgian society. The latter reason is certainly one of the most important, but not the only one. One could add at least the absence of the above-mentioned control of the Belgian intelligence services, as well as the activities of the armed forces of several European countries on foreign battlefields, among others. The majority of the local population in European societies has in recent decades proven it is capable of effective efforts to integrate immigrants of diverse religious and ethnic backgrounds. On the other hand, immigrants and refugees have found their home in some European societies, and the majority appreciates the social security protections granted to them by enabling the European welfare state. Living together with some sacrifices on both sides is possible. Complications and tensions arise from the criminal and authoritarian tendencies of the extremes pole of European societies. Islamic extremists represent a relatively small share of the total European Muslim population. At the same time, it is necessary to recognise that the majority of European societies have not only been facing the challenges posed by terrorist threats but also those brought by global, diversified criminal groups regarding successful hijacking attempts of state institutions by influential interest groups.

The recent terrorist attacks need to be adequately and effectively addressed, but solely on the condition they do not undermine the founding pillars that underpin a European democratic and legal state. These chiefly include the rule of law, human rights protection and pluralism. Interim restrictions on certain rights and freedoms could otherwise be permitted, but only if they are provisional, adequate and proportionate to the objective pursued in a democratic society. Immediately after the attacks, Belgium declared a state of emergency. Of course, such restrictions are only permissible if they are temporary, narrow and specific, necessary, and proportionate. If not, modern European societies will slowly begin to turn into autocratic states, similar to those from which the majority of Islamic barbarians have originated. In this light, civil society stakeholders therefore need to insist on the protection of fundamental European values ​​in the selection and implementation of counter-terrorism policies. The latest attacks have not left only bloody stains on the streets, but have cut deeply into the subconscious and unconscious sublayers of the existence of Europeans. The dilemma between freedoms and security will only be successfully resolved if European societies revive the essence of the Enlightenment values ​​that have for centuries allowed the emergence, existence and development of European societies.

The ancient myth of Achilles and his heel offers a historical reading of contemporary dilemmas. Achilles was such a brave, fearless and resolute warrior of Homer’s Iliad that he was almost invincible and invulnerable. At a young age, his mother dipped him into the holy water of the River Styx to protect him from his enemies. While dipping him into the river, she held him upside down by his heel so that his heel remained the only vulnerable part of his body. It is a historical fact that Achilles was later killed in the Trojan War by an arrow shot into the only vulnerable part of his body. Achilles’ story offers us a historical lesson about the vulnerability of individuals and European societies. Insistence on the content and timing of unlimited counter-terrorist measures at the expense of protecting the most basic rights that justify modern European society can only lead to the erosion of those values which should be the same that guide the counter-terrorism measures.

The Achilles’ heels of modern European societies have therefore been hidden in a delicate (im)balance between ensuring public safety and the implementation of basic public goods such as the rule of law, pluralism and the protection of human rights. If one defends the thesis that in the present situation it is essential to fully prevent terrorism at the expense of freedom and the fundamental values ​​of society, and vice versa, one quickly opens the door to arbitrary abuses of the pillars of rule-of-law states. Where the ratio of these values is not carefully and reasonably balanced, some European societies could soon began to write a chapter about their decline. Modern European societies have still time to avoid the fate of Achilles. However, they should be warned to fear those who proclaim there is no dilemma between security and freedom and that it is necessary to give priority to one or the other values. As soon as a modern European society agrees with such an argument, they would reveal their Achilles’ heel and open themselves up to attacks and the abuse of their core principles. It is therefore necessary to fight against the terrorist attempts of Islamic extremists by improving the functioning and financing of the intelligence services which encounter extremely difficult challenges in preventing future attacks. Yet the objective of such efforts should aim to preserve the values ​​of the rule of law, the protection of human rights, and pluralism, which are sacred, indivisible and inviolable values ​​of European societies.

New article on Transitional Justice in the Former Yugoslavia

Gentian Zyberi and Jernej Letnar Černič have published article on “Transitional Justice Processes and Reconciliation in the Former Yugoslavia: Challenges and Prospects”, Nordic Journal of Human Rights, Volume 33, Issue 2, 2015. Here is the abstract :

This article aims to assess the achievements and challenges facing the transitional justice processes that have taken place in the countries most affected by the armed conflicts resulting in the violent dissolution of the former Yugoslavia and whether, and to what extent, these processes have furthered inter-ethnic reconciliation. The two variables used for this purpose are the scope of individual criminal accountability for war crimes and the scope of reparations provided to victims of the armed conflicts occurring throughout the 1990s and in the early 2000s. The following analysis combines an assessment of relevant international and domestic efforts. Thus, first, the article analyses the impact of the International Criminal Tribunal for the former Yugoslavia (ICTY or tribunal) in the transitional justice processes in Croatia, Bosnia and Herzegovina (Bosnia or BiH), the former Yugoslav Republic of Macedonia (Macedonia), Serbia, and Kosovo. Over the last 20 years the tribunal has investigated and prosecuted a considerable number of individuals for mass atrocity crimes. Subsequently, the focus shifts to assessing the domestic efforts surrounding the prosecution of war crimes and awarding of reparations for victims of the armed conflicts in these countries. The article argues that lack of sufficient coordination and close cooperation between international stakeholders and a general reticence on the part of the national authorities to engage meaningfully with past wrongs have resulted in a situation where many perpetrators of war crimes remain unpunished and individual victims have barely received any reparations. The article holds that for the ongoing transitional justice processes to meaningfully further inter-ethnic reconciliation in the republics emerging from the former Yugoslavia, continued legal reforms and a pluralistic public discourse, which embrace a strong focus on the rights of victims of war crimes, are necessary.