Conference on Central and Eastern European Judges under the EU Influence

College of Europe and European University Institute will be on 12 and 13 May 2014 holding conference on “Central and Eastern European Judges under the EU Influence: The Transformative Power of Europe Revised on the 10th Anniversary of the Enlargement”. The conference aims to answer the following questions :

What has been the “transformative power” of EU law on the reasoning and ideologies of Central European countries’ judiciary? What has been the impact of EU membership on their institutions? How can we explain the radical change of approach of some initially “Euro-friendly” Constitutional Courts that in recent times have questioned the constitutionality of EU acts and even a judgement of the ECJ? What are the cultural and political reasons of the backsliding on rule of law and constitutional guarantees in some of the Central and Eastern European countries following the accession?

The programme of the conference is as follows :

Monday, 12th
May 2014
9.00 Arrival and Registration of participants
9.30 Welcome and Introduction
Loïc Azoulai, Director of the Centre for Judicial Cooperation, European University Institute
Michal Bobek, College d’Europe
10.00 Stream 1: Judicial Reasoning and Judicial Ideology – Chair: Loïc Azoulai
Short presentations by
Peter Cserne – Formalism and Policy Arguments in Judicial Reasoning: Is Central Europe a Special Case?
Jan Zobec and Jernej Letnar Černič – The Remains of the Authoritarian Mentality within the Slovene Judiciary
Marcin Matczak, Matyas Bencze and Zdeněk Kühn – EU law and CEE judges. Administrative judiciaries in the Czech Republic, Hungary and Poland ten years after the Accession
Rafał Mańko – The Impact of EU Membership upon Private Law Adjudication in Poland: A Case Study on Unfair Terms in Consumer Contracts
10.40 Comments by Boštjan Zalar and Erhard Blankenburg
11.15 Coffee break
11.30 General Discussion
12.00 Stream 2: Structural and Institutional Changes – Chair: Matej Avbejl
Short presentations by Sinisa Rodin – Dumb and no More Here
Marton Varju and Andras Kovacs – The impossibility of being a European and a national judge at the same time: a Central and Eastern European experience
Nina Poltorak – Changes in the level of the national judicial protection under the EU influence on the example of Polish legal system
Alexander Kornezov – When David Teaches EU Law to Goliath – A Generational Upheaval in the Making in the Bulgarian Judiciary
Aleš Galič – Aversion Against a Judicial Discretion in Civil Proceedings in Post-communist Countries: Can the Influence of the EU Law Change It?
13.00 Lunch
14.20 Stream 2: Structural and Institutional Changes (continued)
Comments by Mirosław Wyrzykowski and Tudorel Stefan
14.40 General Discussion
15.15 Coffee break
15.30 Stream 3: Constitutional Courts and Constitutional Justice – Chair: Wojciech Sadurski
Short presentations by
Tomasz Tadeusz Koncewicz – Polish Constitutional Court and the comity of circumspect
constitutional courts: The Court of old closures or new openings?
Jiří Přibán – Constitutional Sovereignty and Jurisprudence of the Czech Constitutional Court
Allan Tatham – “Keeping the Faith”: The Trials and Tribulations of the Hungarian Constitutional Court in following its European Vocation
Aleksandra Kustra – When the language you speak is not your mother-tongue: Confusions in CE Constitutional Courts’ application of legal concepts concerning EU Membership
Pola Cebulak – From a «teacher-student» relationship to a «student-student» dynamic? The Central and Eastern European «block » of Constitutional Courts in European Judicial Politics
16.30 Comments by Marek Safjan
16.50 General Discussion
17.30 End of Day 1
Tuesday, 13th
May 2014
9.30 Stream 4: Backsliding and the Rule of Law – Chair: Inge Govaere
Short presentations by
Kim Lane Sheppele – Constitutional coups and judicial review: how transnational institutions can strengthen peak courts at times of crisis (with special reference to Hungary)
Petra Gyöngyi – Constitutional constraints and possibilities and the role of the European Union in guiding judicial reforms in Hungary and Romania
Uladzislau Belavusau – Challenging Authoritarism: EU Transformative Power in Central & Eastern Europe?
Martin Mendelski – Pathologies of rule of law promotion: The uneven impact of the EU on de jure and de facto rule of law development in Central and Eastern Europe
10.15 Comments by Hannes Kraemer and Jenö Czuczai
10.50 Coffee break
11.10 General Discussion
11.40 Conclusions
Of Light, Darkness, and the White Man`s Burden
Michal Bobek

Mladina v Slovenia – ECtHR protects harsh journalistic criticisms of politicians

The European Court of Human Rights has on 17 April 2014 delivered its judgment in the case of Mladina d.d. v Slovenia (20981/10) concerning the scope and nature of freedom of political expression. Slovenian left-wing weekly magazine, Mladina, published in 2005 an article describing a former nationalistic right-wing politician, former MP of Slovenian parliament, as “a cerebral bankrupt” referring to his opposition to legal recognition of same-sex partnerships. Slovenian ordinary courts held that published article breached the accepted forms of journalistic criticisms and thereafter awarded damages to former MP. Their decisions were later upheld also by the Slovenian Constitutional Court. The European Court, however, disagreed and found Slovenia in violation with article 10 ECHR. More specifically, it agreed that : 

… describing S.P.’s conduct as that of a “cerebral bankrupt” who, in a country with less limited human resources, would not even be able to find work as a primary school janitor, was indeed extreme and could legitimately be considered offensive. However, it is noted that the impugned remark was a value judgment, as acknowledged by the Government. It is true that in the absence of any factual basis even value judgments can be considered excessive. Nevertheless, in the present case the facts on which the impugned statement was based were outlined in considerable detail; with the exception of his concluding remark, S.P.’s parliamentary speech was quoted almost in its entirety, along with a mention of his accompanying imitation of a homosexual man. This description was followed by the author’s commentary which, in the Court’s opinion, was not only a value judgment, but also had the character of a metaphor. In the context of what appears to be an intense debate in which opinions were expressed with little restraint (see paragraphs 7 and 8 above), the Court would interpret the impugned statement as an expression of strong disagreement, even contempt for S.P.’s position, rather than a factual assessment of his intellectual abilities. Viewed in this light, the description of the parliamentarian’s speech and conduct can be regarded as a sufficient foundation for the author’s statement. (para. 43.)

Therefore it held that :

the domestic courts did not convincingly establish any pressing social need for placing the protection of S.P.’s reputation above the applicant company’s right to freedom of expression and the general interest in promoting freedom of expression where issues of public interest are concerned. The Court thus concludes that the reasons given by the domestic courts cannot be regarded as a sufficient justification for the interference with the applicant company’s right to freedom of expression. The domestic courts therefore failed to strike a fair balance between the competing interests. (para. 47).

The Court’s decision in present case is in the line with its case law. Freedom of expression clearly protects the right to harsh criticism of persons occupying public positions and participation in public debate. Politicians and other public figures may be subject to harsher criticism than individuals who do not occupy public positions, or do not participate in the public sphere, as it is a critique of the holders of public positions in the public interest (Castells v Spain, no. 11798/85, 23. 4. 1992, para. 46; Otegi Mondragon v Spain, no. 2034/07, para. 50). Anyone can participate in discussion of matters of public interest and may exaggerate or provoke but subject to respect for the reputation and rights of others. However, the right to freedom of expression does not protect publications of false statements and records.

Spielmann on margin of appreciation

President of the European Court of Human Rights, Dean Spielmann, has on 20 March 2014 delivered a lecture at the UCL Faculty of Law of the University College London on the doctrine of margin of appreciation in the jurisprudence of the European Court of Human Rights. You can watch entire video of the lecture here.

ECtHR reaffirms disability rights

The European Court of Human Rights rendered on 15 April 2014 judgment in the case of Asalya v Turkey (43875/09) concerning the degrading detention conditions of Mr Asalya, who is paraplegic. The Court noted with regard to his disability that :

…the lack of effort to cater for his disability, the applicant experienced serious difficulties in meeting his most basic needs, such as using the toilet. The Court notes in this connection that the inaccessibility of the sanitation facilities raises a particular concern under Article 3 of the Convention, in particular as the applicant was dependent entirely on the good will of the police officers to assist him, on account of the structural deficiencies at the place of detention (51. para).

and on this basis stated that :

the detention of the applicant in conditions where he was denied some of the minimal necessities for a civilised life, such as sleeping on a bed and being able to use the toilet as often as required without having to rely on the help of strangers, was not compatible with his human dignity and exacerbated the mental anguish caused by the arbitrary nature of his detention … (para. 53).

The Court therefore found that Mr Asalya was subjected to degrading treatment contrary to Article 3 ECHR. The Court also found Turkey in violation of his right to liberty and security (article 5 (1, 4, and 5). It follows from this case that states have positive obligations to protect disability rights of individuals in detention. More specifically, “where authorities decide to place and keep a person with a disability in detention they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability” (para. 50).

Hearing on EU accession to the ECHR

The Court of Justice of the European Union will on 6 May 2014 hold hearing on EU accession to the European Convention on Human Rights on the basis of the request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU. Question submitted to the Court of Justice goes as follows : “Is the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms compatible with the Treaties?”

New publications

Several interesting publications have been published on the EU Fundamental Rights Charter and the European Convention on Human Rights in the last few weeks. Here are some of them :

Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward have edited “A Commentary on the The EU Charter of Fundamental Rights” (Hart, 2014). Here is the abstract :

The Charter of Fundamental Rights of the European Union enshrines the key political, social and economic rights of EU citizens and residents in EU law. In its present form it was approved in 2000 by the European Parliament, the Council of Ministers and the European Commission. However its legal status remained uncertain until the entry into force of the Treaty of Lisbon in December 2009. The Charter obliges the EU to act and legislate consistently with the Charter, and enables the EU’s courts to strike down EU legislation which contravenes it. The Charter applies to EU Member States when they are implementing EU law but does not extend the competences of the EU beyond the competences given to it in the treaties.  This Commentary on the Charter, the first in English, written by experts from several EU Member States, provides an authoritative but succinct statement of how the Charter impacts upon EU, domestic and international law. Following the conventional article-by-article approach, each commentator offers an expert view of how each article is either already being interpreted in the courts, or is likely to be interpreted. Each commentary is referenced to the case law and is augmented with extensive references to further reading. Six cross-cutting introductory chapters explain the Charter’s institutional anchorage, its relationship to the Fundamental Rights Agency, its interaction with other parts of international human rights law, the enforcement mechanisms, extraterritorial scope, and the all-important ‘Explanations’.

Dia Anagnostou, Alina Mungiu-Pippidi, Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter, Eur J Int Law (2014) 25 (1): 205-227.  Here is the abstract :

Over the past couple of years, international law and international relations scholarship has shifted its focus from the question of whether human rights treaties bring any state-level improvements at all to investigations in the domestic context of the factors and dy namics influencing state compliance. In this direction, and focusing on the European Court of Human Rights, this study inquires into the factors that account for variable patterns of state compliance with its judgments. Why do national authorities in some states adopt a more prompt and responsive attitude in implementing these judgments, in contrast to other states that procrastinate or respond reluctantly? On the basis of a large-N study of the Strasbourg Court’s judgments and a comparison across nine states, this article argues that variation in state implementation performance is closely linked to the overall legal infrastructure capacity and government effectiveness of a state. When such capacity and effectiveness are high and diffused, the adverse judgments of the Strasbourg Court are unlikely to be obstructed or ignored, even when the government, political elites, or other actors are reluctant and not in favour of substantive remedies.

Erik Voeten,  Domestic Implementation of European Court of Human Rights Judgments: Legal Infrastructure and Government Effectiveness Matter: A Reply to Dia Anagnostou and Alina Mungiu-Pippid, Eur J Int Law (2014) 25 (1): 229-238. Here is the abstract :

This article responds to the valuable contribution by Dia Anagnostou and Alina Mungiu-Pippidi in which they analyse how nine countries implemented European Court of Human Rights judgments that found violations of Articles 8–11 of the European Convention on Human Rights. Their conclusion that capacity plays an important role in the implementation of ECtHR judgments is certainly correct. In this short response, I highlight various aspects of the authors’ analysis where they make problematic choices with regard to data and statistical methods. First, I describe and use a more comprehensive dataset that allows us to reach more generalizable conclusions. Secondly, I show how survival analysis is a more appropriate framework than logit or linear regression for analysing these data. Thirdly, I argue that the difficulty of the implementation task needs to be accounted for in any analysis of cross-country variation in implementation. My re-analysis shows that low capacity countries attract judgments that are more difficult to implement. The analysis also uncovers a subtle relationship between time, institutional capacity, and checks and balances. High capacity helps willing politicians to implement judgments quickly. Yet, among judgments that have been pending longer, countries with higher capacity are no quicker to implement than lower capacity countries. By contrast, checks and balances initially slow down implementation but help to eventually ensure begrudging implementation.

ECJ strikes down the EU Data Retention Directive

The European Court of Justice has yesterday somehow expectedly, particularly after the opinion delivered by Advocate General Cruz Villalon in December 2013, decided in the cases C‑293/12 and C‑594/12  that EU Data Retention Directive is invalid. More specifically, it held that :

Directive 2006/24 does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary (para. 65).

It is now necessary that the EU Commission prepares a new draft Directive in line with the EU Fundamental Rights Charter and the European Convention on Human Rights and opens an EU wide consultations involving all stake-holders from all Member States.

“When the Birches Up There are Greening”

The European Court of Human Rights has recently found that application in the case of Marta Jelševar and others v Slovenia (47318/07) concerning the alleged violation of Article 8 of ECHR is manifestly ill­-founded and must declared inadmissible. The facts of the case were as follows :

In 1998, B.M.Z. self-published a novel titled ‘Ko se tam gori olistajo breze’ (When the Birches Up There are Greening) and subtitled ‘From the Golden Tales of Depala Vas’, in which she described the life story of a woman from the Slovenian countryside who emigrated to the United States of America at the beginning of the 20th century, married a fellow Slovenian by the name of Brinovc and subsequently returned home to take over the family farm, trade in fruit and vegetables and raise a family. The main character, Rozina, was depicted as a lively, ambitious and resourceful woman. However, the book also described that she used sex to get her way with her husband, brewed and sold illegal alcohol during Prohibition in the United States, and valued money over her children. Rozina was a devoted Catholic, often conversing with the Virgin Mary, and the book concluded with the depiction of her death as a surreal allegory of her assumption into heaven, assisted by the Virgin Mary. (para. 4 of the judgment)

The applicants claimed that the novel violated their right to respect for their private and family life as it seemingly portrayed the scenes from their family life. More specifically, they claimed that the writer, Breda Smonikar, overstepped her freedom of artistic expression. The Court concluded that :

finds it important to note, as did the Constitutional Court, that the book at issue was written not as a biography but as a work of fiction and, as such, would not be understood by most readers as portraying real people. In this connection, the Court would emphasise that even the applicants’ family acquaintances, which perceived certain similarities between the literary characters and, in particular, the applicants’ mother, mostly denied the possibility that the character in the book represented a truthful depiction of the actual person concerned (footnotes omitted, para. 38).

This decision was as straightforward as it gets. Artistic expression protects fictional works not illustrating scenes from real life. What is surprising, that it took the European Court more than 6 years to deliver it taking into consideration that the Constitutional Court of Republic of Slovenia delivered its decision already on 12 October 2007.

Summer course on international human rights

2815153648_08bde0824b_bThe International Institute of Human Rights has since 1969 organised one of the oldest summer courses on international human rights in Europe. The Institute was established by René Cassin one of the drafters of the Universal Declaration of Human Rights and the 1968 Nobel Peace Prize winner. Call for applications for 2014 session is opened until 14 April. The course takes place over the course of three weeks in Strasbourg and is now offered in English, French, Arabic, Spanish and Chinese. Students can also sit for prestigious a Diploma in international law and comparative human rights law. List of previous graduates is available here.

Election of ECHR judges

The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe has on 27 March 2014 published information document on the Procedure for electing judges to the European Court of Human Rights. The next judges that need to be elected are in the respect of the Slovak Republic (term expired on 31 October 2013) and in the respect of the Republic of Serbia (term expires tomorrow on 3 April 2014). Judges are elected for the nine-year term. The COE Parliamentary Assembly already previously noted that “national selection procedures must be rigorous, fair and transparent in order to enhance the quality, efficacy and authority of the Court” (Resolution 1726 (2010), para. 7).