Tuesday, 11 October 2016

New book provides judicial perspectives on the impact of the ECHR in Central and Eastern Europe

I have recently been reading a fascinating new book, The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives, which is edited by Iulia Motoc (judge for Romania at the ECtHR) and Ineta Ziemele (former judge for Latvia at the ECtHR). The book is, in essence, a survey of the influence of the ECHR in the ‘post-communist’ States that joined the Council of Europe from 1990 onwards. The editors have orchestrated an authoritative guide to the multi-faceted relationship between these States, the ECHR, and the ECtHR that has developed over the last 25 years. Because current or former judges of the ECtHR, or senior national judges or academics, have written many of the chapters in the book, the insights made and the arguments advanced are particularly commanding. I thought I would write a brief review of the book because I think it is a particularly useful resource for examining issues relating to sexual orientation discrimination across a large number of States contracted to the ECHR.

In her Introduction, Iulia Motoc explains that the book ‘offers an insight into some aspects of a long and complex process of change from totalitarian regimes to democracy through the implementation of the ECHR obligations’ (page 5); a process, she notes, which ‘is not completed’ (ibid). It is the incompletion of the process of democratization in Europe that perhaps makes this book so important because it provides a ‘snapshot’ of the state of human rights law in a number of Central and Eastern European States and, in doing so, shows the range of issues and problems that remain therein. After a very useful overview chapter by Luzius Wildhaber (former Swiss judge and President of the ECtHR) – the most interesting aspect of which is the description of various ‘problems’ that followed the accession of some of the Central and Eastern European States to the ECHR, including the attempt, allegedly in the name of the President of one State, to blackmail the ECtHR – the book is then divided into 19 State-specific chapters that each offer a window onto the observation and implementation of the ECHR within domestic legal cultures and practices.

The primary aim of the book is to give an overview of the relationship between the law in a number of Central and Eastern European States and the ECHR and, specifically, to discuss the status of the ECHR in the legal order of each State. This is extremely useful because the status of the ECHR across Contracting States is far from uniform and it is therefore fascinating to see how each State has dealt with incorporating the ECHR into their legal regime. Not all Central and Eastern European States are covered – for example, Bulgaria and Georgia are absent – but the book can certainly be described as comprehensive given that it includes separate chapters on States that signed the Convention in 1990 (Hungary), 1991 (Czech Republic, Poland, Slovakia), 1993 (Estonia, Lithuania, Romania, Slovenia), 1995 (Albania, Latvia, Macedonia, Ukraine), 1996 (Croatia, Russia), 2001 (Armenia, Azerbaijan), 2002 (Bosnia and Herzegovina) and 2003 (Montenegro, Serbia). Such a macro-view across these States of the Council of Europe is very welcome because it allows a comparative insight into domestic practices that would not otherwise be readily accessible.

One of the ways in which the story of the impact of the accession to the ECHR by the Central and Eastern European States is told is through a narrative about how the ECHR system has itself changed. Writing about the pre-1990s ECHR system, Dean Spielmann, former President of the ECtHR, argues that ‘[n]ot many truly grave, gross or flagrant violations of human rights came to Strasbourg during that time’ and, quoting Wojciech Sadurski, that the ECtHR was largely concerned with establishing ‘standards which were admittedly exciting for academic lawyers, but rarely going so far as to reverse really important policy and legal choices adopted within national systems’ (page xxvi). Spielmann argues ‘[t]his was to change radically after the 1990s’ (ibid) with the accession of the Central and Eastern European States. There is no question that Spielmann is, in part, correct, because the substantive nature of the complaints brought to the ECtHR by those in Central and Eastern European States has often concerned ‘traumatic situations’ (page xxvii) not found in Western Europe. However, approached from the point of view of sexual orientation discrimination, the reverse could be said to be true: ‘truly grave, gross or flagrant violations of human rights’ relating to sexual orientation discrimination did consistently come to Strasbourg in the pre-1990s period and, moreover, the way Strasbourg dealt with them subsequently impacted on the Central and Eastern European States once they joined the ECHR system. For example, when the ECtHR issued its judgment in Dudgeon v the United Kingdom in 1981, in which it held that the criminalization of consensual sexual acts committed between two adult males in private amounted to a violation of the right to respect for private life – a conclusion reached after 26 years of the former European Commission of Human Rights repeatedly rejecting complaints about the criminalization of homosexual acts in States such as Austria, (West) Germany, and the United Kingdom – it set a human rights standard that any Central and Eastern European State wishing to join the ECHR system was required to observe.

As I said above, I read each chapter of the book with a particular interest in the discussion of issues relating to sexual orientation discrimination. I won’t review every chapter – not all deal with sexual orientation discrimination issues in any case, although all are worth reading – but will focus on three chapters concerning Poland, Romania and Serbia.

The chapter on Poland, written by Lech Garlicki and Ireneusz Kondak, is particularly interesting for its discussion of Bączkowski and Others v Poland in which the ECtHR held that, inter alia, the refusal of Polish authorities to grant permission for a public march and meetings to protest against homophobia amounted to a violation of the right to freedom of peaceful assembly. The domestic authorities had refused permission for the public assembly because the organizers had not submitted a ‘traffic organization plan’. An appeals tribunal subsequently quashed this decision and, moreover, the Constitutional Court deemed the law on which it was based to be incompatible with the right to freedom of assembly guaranteed by the Polish Constitution. Therefore, Garlicki and Kondak argue that it is important to recognise that, whilst Bączkowski and Others represents ‘the most prominent input of the Strasbourg Court’ into Poland’s process of democratization, the ECtHR’s judgment was adopted after the rulings of the domestic courts and, as such, confirmed their positions (page 327). There are other examples where this has been the case and the authors cite them in support of their argument that the Polish transformation in the area of democratization ‘appears to be quite successful’ and has benefited largely from the ‘indirect’ influence of the ECtHR (ibid).

In their chapter on Romania, Iulia Motoc and Crina Kaufman discuss the ‘first authentic reference by the Constitutional Court to the case law of the ECtHR’ (page 341). This was in a decision issued in 1994 which concerned whether Article 200(1) of the Criminal Code, which criminalized sexual acts committed between persons of the same sex, was compatible with the Constitution. Drawing upon ECtHR case law relating to the criminalization of male homosexual acts – namely Dudgeon v the United Kingdom, Norris v Ireland, and Modinos v Cyprusthe Constitutional Court held that Article 200(1) did not comply with provisions in the Constitution ‘insofar as it applies to sexual relations between adults of the same-sex, freely consented, not committed publicly or that do not cause public scandal’ (ibid). This marked, the authors argue, the opening of an important ‘dialogue’ between the highest domestic judicial authority and the ECtHR – a dialogue which they feel remains, in part, problematic – that has enabled judges in the Constitutional Court to utilize ECtHR case law to resolve conflicts and tensions in respect of human rights at the domestic level. This was extremely important in respect of the criminalization of same-sex sexual acts because ECtHR jurisprudence allowed the Constitutional Court to reach a decision that resulted in homophobic, Communist-era law being amended to bring about the partial decriminalization of consensual sexual acts between adults.

The chapter on Serbia, written by Dragoljub Popović and Tanasije Marinković, explores the reasoning of the Constitutional Court of Serbia in its decision to ban the far-right political organization Obraz. The organization had made a number of statements about those it considered to be ‘Serbian enemies’ which included ‘homosexuals’ who, it said, ‘will be prevented’ if they ‘have no shame’ and decide to assemble in public. The Constitutional Court, in deciding that there was a pressing social need to suppress Obraz and that the recent historical context made it proportionate to do so, based its ruling entirely on ECtHR case law. Specifically, the Constitutional Court drew upon Vejdeland and Others v Sweden in which the ECtHR held that the criminal conviction of individuals who had circulated homophobic leaflets at a school did not amount to a violation of their right to freedom of expression. This is one example of how, as the authors argue, there ‘is a visible impact of the Convention case law on the democratization and rule of law in Serbia’ (page 388). The authors also state that it ‘remains doubtful’ whether this impact has ‘reached a satisfactory level’ (ibid).

There are other chapters in the book that deal with issues relating to sexual orientation discrimination. One absence, however, that I found disappointing was in the chapter on Russia written by Anatoly Kovler. I had expected to find a discussion of Alekseyev v Russia, not least because the ECtHR’s judgment – that the repeated refusal of domestic authorities to permit ‘gay pride’ marches in Moscow amounted to a violation of, inter alia, Article 11 of the ECHR – has not been executed by the domestic authorities and the suppression of LGBT speech in the Russian Federation remains ongoing. Kovler was one of the judges sitting in the First Section of the ECtHR that decided Alekseyev so his views on the manner in which the Russian authorities continually obfuscate on the issues raised in the judgment when the Committee of Ministers of the Council of Europe questions them would have been very insightful. He does note, however, that legislative efforts to impose ‘harsher punishment […] for “propaganda” of unconventional sexual orientation’ will likely create a surge in complaints to the ECtHR that, in turn, ‘will justify talking about new “systemic” problems’ (page 371).

Overall, I think this is a fascinating book, and one that will be widely read by legal practitioners and scholars across Europe and beyond. It will be particularly useful for students trying to come to terms with the many ways in which the ECHR influences and shapes widely different legal cultures and practices. The high price of the book (£99.99) – a perennial issue in academic publishing – will limit its audience and it is to be hoped, therefore, that Cambridge University Press will hasten the issue of a paperback edition. Priced more reasonably, I think this book will appeal to a wide audience because it addresses a subject of considerable public interest: the ongoing transformation of Europe, from a continent that once comprised a mass of totalitarian regimes often ruled by brutal dictators to a continent made up of democratic and pluralistic societies at different stages of legal evolution. The book shows the importance of the Council of Europe, and the ECtHR, in facilitating this transformation and supporting States in meeting their obligation to respect human rights and fundamental freedoms.

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