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.

ECtHR condemns extraordinary renditions and secret detentions in Poland

The European Court of Human Rights has on 24 July delivered two judgments against Poland, Al Nashiri v. Poland (28761/11and Husayn (Abu Zubaydah) v. Poland 7511/13)concerning extraordinary renditions by the CIA of Mr Al Nashiri and Mr Husayn, both alleged terrorist, to secret detention sites in Poland. The Court has inter alia employed a strong language in condemning arbitrary and secret detentions thereby noting, for instance, in Al Nashiri that :

that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (para. 529).

The Court found that Poland committed several violations of the European Convention of Human Rights and Fundamental Freedoms, including, of Articles 3, 5, 8, 13 and 6 (1). It also found violation of Articles 2 and 4 in connection with Article 1 of Protocol 6 concerning the abolition of death penalty concerning rights of Mr Husayn. For the full press ECtHR release hereAnne Brasseur, President of the PACE of the COE noted in the light of both judgments that :

Seven years ago, Senator Dick Marty made his first presentation to the Council of Europe Parliamentary Assembly of credible evidence about the existence of secret CIA prisons in Poland and Romania, and the involvement of other European countries in illegal renditions. His statements were subsequently confirmed, as witness the judgments of the European Court of Human Rights made public today in the cases of Al Nashiri and Husayn against Poland.

Those two cases already second and third cases following judgment in El-Masri v. the former Yugoslav Republic of Macedonia (39630/09). A number of cases are yet to follow. All such and similar cases cast a dark shadow on the protection of basic human rights in Europe. It is doubtful, however, that those judgments will ever be fully executed and the applicants fully rehabilitated.

Prohibition of excessive juvenile pre-trial detention

The European Court of Human Rights has on 4 March 2014 in the case of Filiz v Turkey (28074/08) found Turkey in violation of Article 5 § 3 (right to liberty and security) on the basis of excessive length of juvenile pre-trial detention, which lasted for eleven months and six days (para. 60). It reasoned that :

que le requérant était âgé de seize ans lors de son placement en détention et qu’il était âgé de dix-sept ans à la fin de sa détention provisoire dont la durée était donc de onze mois et six jours. A cet égard, elle a déjà exprimé son inquiétude face à la pratique consistant à placer des mineurs en détention provisoire – sans que des méthodes alternatives aient été envisagées, conformément aux obligations de la Turquie tant en droit interne qu’en vertu de plusieurs conventions internationales –, et elle rappelle avoir conclu à des violations de l’article 5 § 3 de la Convention pour des périodes bien plus courtes que celle passée par le requérant en détention dans la présente affaire (Güveç, précité, §§ 108-109 et la jurisprudence qui y est citée, et Bilal Doğan c. Turquie, no 28053/10, § 40, 27 novembre 2012).