V torek, 15. maja 2018 ob 16h, je na ljubljanski lokaciji Evropske pravne fakultete potekala strokovna razprava o človekovih pravicah v krizi. Predaval je eden vodilnih evropskih strokovnjakov o Evropskem sodišču za človekove pravice in profesor na Univerzi Middlesex v Londonu, prof. dr. Philip Leach. Strokovno razpravo je organiziral in vodil izr. prof. dr. Letnar Černič.
Oñati workshop on the Rule of Law, Populism and Militant Democracy in Europe will take place between 12-13 April 2018 at the International Institute for the Sociology of Law in Oñati, the Basque Country, Spain.
For some time now the European societies have been marked by extreme movements from all ideological poles who directly assault the values of democracy and the rule of law. Liberal democracies are therefore faced with challenges of how to respond to the rise of radical movements from different parts of the philosophical poles. Are European states justified to prohibit the exercise of freedom of assembly and of association, expression and religion, all with the aim of protecting the democratic and liberal order, or would be such measures disproportionate and excessive? Some argue that measures of militant democracy, as they have been known, themselves undermine the rule of law and democracy as they directly interfere with the values of pluralism, human dignity, freedom and equality. On the other hand, others argue that it is indispensable to counter the populist movements with constitutional individual actions arising from civilizational heritage of European liberal democracies. The concept of rule of law includes how a society proceeds and functions on the basis and through law. Genuine respect for rule of law is one of the key prerequisites for the functioning of a free and democratic society, as it enables and secures the exchange of different opinions, attitudes and views. Its normative protections are reflected in the provision on civil-political and socio-economic rights. The European Convention on the Protection of Human Rights and Fundamental Freedoms only specifically refers to the rule of law in the preamble, where it notes that ‘as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’.
The topic first of all addresses hard conceptual issues. The central concepts of the workshop: the rule of law, populism and militant democracy tend to figure as essentially contested concepts. To avoid speaking past each other the workshop will strive toward an incompletely theorized agreement about the shared meaning of these concept. Having passed this theoretical conceptual threshold, the concepts will applied and studied in several case-studies in national and supranational contexts. So far the questions of the rule of law, illiberal movements etc. have been addressed predominantly, if not exclusively, within the context of the nation state, either unitary or federal. The EU is neither. As a specific constitutional structure of a post-statist union it posses specific epistemic, explanatory and normative challenges of addressing and responding to the conflicts between the rule of law, populism and militant democracy.
The specific challenges, different as has typically been the case, should be addressed just through the judicial lens, but also through the lens of a legislative branch, administrative authorities, and least but not last, the civil society. The prevailing formalist approach to the rule of law should be complemented by the sociological approach that has interestingly been lacking in the legal writings about the rule of law and democracy.
Against this background, the proposed workshop will first dissect the current state of the rule of law, populism and militant democracy in Europe and, second, demonstrate how the liberally democratic states, based on the rule of law, should respond to the contemporary threats to themselves without denying their own very values.
Professor Eduardo Ruiz Vieytez of the University of Deusto was lecturing in Ljubljana at the European School of Law between 15 and 17 January 2018 on the minorities protection in 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 :
High 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.
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.
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.
We have previously posted about conference on “Crisis of Rule of Law and Democracy in Europe” to take place this Thursday and Friday at Brdo pri Kranju, Slovenia. Here is now its full programme :
Day 1: Thursday, Sept 25, 2014
17:00 – 19:00
by Kimmo Nuotio: “Setting the Scene – the Patria Case: Criminal Justice in the Political
Discussant: Matej Avbelj
19:30 Dinner for the participants
Day 2: Friday, Sept 26
Crises of the Rule of Law and Democracy in a Comparative Perspective: Vestiges of the
Past, Vices of the Present, Prospects for the Future
Panel 1: Fighting the Vestiges of the Past in the Present
9:00 – 11:00
Anna-Bettina Kaiser (Germany)
Daniel Smilov (Bulgaria)
Uladzislau Belavusau (Belarus)
Discussant: Vojko Strahovnik
11:00 Coffee Break
Panel 2: Challenges of the Present for the Future
11:15 – 13:15
Paul Blokker (Italy)
Eszter Bodnar (Hungary)
Goran Selanec (Croatia)
Discussant: Katarina Vatovec
Lunch Break 13:30 – 14:30
Panel 3: Specificities of the Slovenian Situation
14:30 – 16:30
Jernej Letnar Černič
Discussant: Miha Movrin
16:30 Coffee Break
17:00 – 19:00
Round-table Discussion: Systemic Problems of Judiciary from a Judge’s Perspective
Iulia Motoc (Judge, European Court of Human Rights)
Marko Šorli (Judge, Supreme Court of Slovenia)
Jan Zobec (Judge, Constitutional Court of Republic of Slovenia)
Chair: Matej Avbelj