The Research Center on Fundamental Rights (CREDOF), and the National Consultative Commission on Human Rights (CNCDH) have, in collaboration with Transparency international France (TIF), published call for papers for conference on “Whistleblowing and human rights”, that will take place in Paris (Sorbonne) on 10 April 2015. Deadline for submissions is set for 30 November 2014.
The case of Naidin v Romania (38162/07, 21 October 2014) originates from one of the dark chapters of the recent history of Central and Eastern European countries. The applicant, Mr Naidin, has served for three terms in the Romanian Parliament until 2014. After his third term of service expired, he wished to return to this previous employment in the Romanian public administration. However, he was prevented from taking up this public service employment due to the Romanian Statute No. 188/1999. Its Article 50 prohibits access to the public administration to the persons that worked as collaborators of former Romanian secret police, Securitate, during the Communist regime. The applicant alleged, in particular, a violation of Articles 8 and 14 of the Convention concerning his right to protect his privacy for employment in the public administration. The third Section of the European Court of Human Rights disagreed and found no violation of the Convention. More specifically, it first noted that :
»les États ont un intérêt légitime à réguler les conditions d’emploi dans le service public. Un État démocratique est en droit d’exiger de ses fonctionnaires qu’ils soient loyaux envers les principes constitutionnels sur lesquels il s’appuie (Vogt c. Allemagne, 26 septembre 1995, § 59, série A no 323 et Sidabras et Džiautas, précité, § 52).« (para. 49)
Finally, it noted that adopted measures were not disproportionate and were necessary in democratic society :
“les perspectives professionnelles du requérant n’ont été supprimées que dans la fonction publique. Les fonctionnaires publics, a fortiori ceux qui occupent des postes à haute responsabilité, de la nature de ceux que le requérant souhaitait réintégrer, exercent une parcelle de la souveraineté de l’État. L’interdiction frappant le requérant n’est donc pas disproportionnée par rapport à l’objectif légitime de l’État de s’assurer de la loyauté des personnes chargées de la sauvegarde de l’intérêt général” (para. 54).
This judgment should be welcomed as it affirms that states have a wide margin of appreciation in regulating the access to positions in their public administration. In this way, it is proportionate for states to prohibit access to former collaborators of secret services of the totalitarian regimes. However, this is not generally accepted standard and should not be taken for granted. Several Eastern European countries face difficulties with dealing with the totalitarian remainants of the past. Most of them have not implemented the policies of lustration as the communist oligarchs have slowly transformed themselves into post-communist elites. For these reasons old post-totalitarian elites have worked against the adoption of policies of lustration aimed at old nomenclature, which has often slowed down transition from totalitarian into democratic societies or even caused constitutional back-sliding of young liberal democracies in Central and Eastern Europe.
N.B. This post was first published at Righting finance blog.
»Making Sovereign Financing and Human Rights Work« is the title of a book recently published by Hart Publishing, Oxford (An Imprint of Bloomsbury Publishing) and that that I co-edited together with Juan Pablo Bohoslavsky. Our initial interest in this topic was sparked by the daily hardship of millions who indirectly suffer due to the realities of current global financial environments. After we started our research for this book project several years ago, we were surprised to find out that apart from some isolated academic articles almost nothing had been written on the issue of how sovereign financing affect the individual’s enjoyment of human rights. However, we have not only been interested in this relationship, but mostly in how to make sovereign financing and human rights work.
The book therefore employs an interdisciplinary approach and offers a unique and comprehensive understanding, explanation and analysis of the interplay between sovereign financing and human rights, two fields that have often been on opposite and separate sides of the debates and even disputes in global finance. Sovereign financing has been often described as state or non-state actors lending financial resources to a sovereign state, an approach in which rights of ordinary people have been typically forgotten. States and their elites have often managed those public resources poorly, at times with the purpose of maintaining authoritarian and totalitarian regimes which have systematically violated not only socioeconomic rights but also civil and political rights. Such state practice has highlighted the gap on interdisciplinary research on sovereign financing and human rights. Several states spend large proportions of their annual revenue repaying sovereign debt. In this way debt repayments undermine the financial ability of a country to fully ensure even the reasonable minimum core of economic and social rights of its population, thereby throwing millions of people into poverty.
Unsurprisingly, states in this situation have not been able to provide even basic social security, education, health, food, housing and water services to their populations. To the extent a state is obliged to repay its sovereign debt, which was spent at the discretion of authoritarian elites, to states, international organizations, and private corporations, it will be less financially capable of providing the reasonable minimum core of economic and social rights. This is confirmed by the examples of current and former totalitarian regimes, whose governments often take out vast financial amounts of loans to finance their military activities, exuberant lifestyles of officials and/or imposed economic policies, against the majority’s interests.
What is more, the diminishing role of the state and rising influence of other global actors such as financial corporations have taken over dominant positions in the global financial markets and have acquired large proportion of sovereign debt in the secondary markets. In this context, the United Nations Human Rights Council recently condemned “the activities of vulture funds for the direct negative effect that the debt repayment to those funds, under predatory conditions, has on the capacity of Governments to fulfil their human rights obligations, particularly economic, social and cultural rights and the right to development” (Section 1). Along this same vein, in the context of negotiations on a resolution on debt restructuring recently approved by the General Assembly, the relevance of the international human rights obligations in sovereign financing was highlighted.
Human rights experts on one side and financial markets experts on the other have usually encountered difficulties in grasping the full complexities of the opposite fields and their causal relationship. The book therefore rests on two main arguments. First, it argues that rights of human beings should be taken into consideration in the context of sovereign financing. Second, it proposes a move from a top-down to a bottom up approach in order to achieve the incorporation of human rights into financing and, reciprocally, integration of sovereign financing challenges into the human rights field.
The book includes 21 chapters written by respected young and senior experts from a wide variety of fields (economic, finance, law, political science). It is divided into four parts. Part I examines how debt affects gross violations of political and civil rights, whereas part II analyses the effect of debt crises on socioeconomic rights. Part III is dedicated to specific financial actors and instruments, and novel approaches. Finally, part IV examines the relationship between sovereign financing and human rights in selected case studies.
The book offers a comprehensive and in-depth introduction to the subject of sovereign financing and human rights. As such it has been long awaited by scholars and practitioners. The contributors of this book have invested a lot of time, research, practical experience, time and patience in its preparation. In this way, the book is undoubtedly a step forward and an ambitious input in the area of sovereign financing and human rights. However, as recent global developments illustrate the research in this area is far from exhausted and much more effort must be made to achieve the book’s objective of “putting human beings first.” All in all, states, international organisations and private actors are obliged to uphold individual’s civil and political and socio-economic rights in the sovereign financing context.
Jernej Letnar Černič is Assistant Professor of Human Rights Law, Graduate School of Government and European Studies, Brdo pri Kranju, Slovenia. The book he and Juan Pablo Bohoslavsky edited, Making Sovereign Financing and Human Rights Work, is available from Hart Publishing, Oxford.
The vacancy notice for the position of new Director of the European Union Agency for Fundamental Rights was published on Friday in the Official Journal of the European Union. Strangely enough, the notice only asks for 5 years of experience (out of 15 years of the required professional experience) in the field of fundamental/human rights.
The Civil Liberties, Justice and Home Affairs Committee of the European Parliament has earlier this week conducted the hearing of Frans Timmermans, current Dutch Minister of Foreign Affairs, and First Vice-President designate of the European Commission in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights. Here is his opening statement at the hearing :
The Grand Chamber of the European Court of Human Rights has on 30 September in the case of Gross v Switzerland (67810/10) dismissed applicant’s complaint concerning the right to assisted suicide with nine votes to eight as inadmissible. The applicant, in 2011, ended her life by imbibing 15 grams of sodium pentobarbital. However, the Court was not aware of this fact and its Chamber found in its judgment of 14 May 2013 that Switzerland violated Article 8 of the ECHR. After the Court was in January 2014 informed of applicant’s death, it decided to dismiss her application complaint holding that shed abused her rights under Article 35 § 3 (a) of the Convention. The Court held that :
According to Mr. F., the applicant’s motive for withholding the relevant information had been that, regardless of the fact that the ongoing grievance arising from her own personal situation had ceased, the proceedings in her case should continue for the benefit of other people who were in a similar situation. Whilst such a motive may be understandable from the applicant’s perspective in the exceptional situation in which she found herself, the Court finds it sufficiently established that by deliberately omitting to disclose that information to her counsel the applicant intended to mislead the Court on a matter concerning the very core of her complaint under the Convention. (para. 6)
It is seems that the Court dismissed the application on the basis Article 35 § 3 (a) of the Convention not on the basis of Article 37 § 1 (c) of the ECHR as it was outraged that it was not informed about the applicant’s death. However, this is unlikely a justified reason to invoke »abuse of rights« doctrine, particularly in such difficult cases concerning assisted suicide and given that the applicant’s attorney was not aware of her death. Therefore, eight of the Grand Chamber judges (Spielmann, Ziemele, Berro‑Lefèvre, Zupančič, Hajiyev, Tsotsoria, Sicilianos and Keller) delivered joint dissenting opinion noting that :
… that the qualification “abuse of rights” is reserved for cases which cause the Court to “waste its efforts on matters obviously outside the scope of its real mission, which is to ensure the observance of the solemn, Convention-related, engagements undertaken by the State Parties”. In the present context, we note that the number of assisted suicides is high and unlikely to abate in the near future. In the case of Switzerland, for example, the number of foreign residents who travel to the country to seek assistance in taking their own lives is not negligible. Accordingly, we do not consider the Court’s efforts to have been wasted: the issue of assisted suicide is likely to engender future applications to the Court and thus certainly merits examination. We observe that there is undoubtedly a European dimension to this issue: travel to Switzerland by people wishing to end their lives, for the purpose of availing themselves of the services of assisted-suicide organisations, has triggered heated discussions in various Contracting States (para. 8, footnotes omitted )
…. the Court should have expressed serious doubts as to the question whether the applicant intended to mislead the Court, but should have ultimately left this issue open as the application could have been struck out under Article 37 § 1 (c) of the Convention. The applicant passed away without leaving any heirs or descendants. Under the specific circumstances of the case, the Court should have decided that it was no longer justified to continue its examination within the meaning of Article 37 § 1 (c), without qualifying Ms Gross’s behaviour as an abuse of rights. (para. 9)
This case could have provided some guidelines as to the end of life situation. In such cases the boundaries between life and death are often blurred. In cases of serious illness and accidents doctors, patients and family members are faced with the dilemma of what to do and how to move forward. Can an individual decide on her own to terminate her life, if she finds herself in a hopeless state of health? Does she has the right to terminate her life if her medical condition is stable? Could her family members of even a doctor decided about the termination of life as is often the case in practice? Issues of treatment of patients at the end of their lives, particularly in intensive care at the end of life are certainly not easy, nor for the doctors who are in daily contact with them, not for family members. Moral norms of medical ethics stipulates that the doctor should always during medical treatment attempt to protect human life. Therefore, several unanswered questions remain as to who and when can decide to terminate patient life. Alas, this has not solved any of them. On the contrary, it has raised a trivial question whether not informing about applicant’s death amounts to the abuse of the rights of ECHR.