Impact of the European Court of Human Rights on the Rule of Law in Central and Eastern Europe

2018 ◽  
Vol 10 (1) ◽  
pp. 111-137 ◽  
Author(s):  
Jernej Letnar Černič
2009 ◽  
Vol 34 (03) ◽  
pp. 713-744 ◽  
Author(s):  
Cynthia M. Horne

The transitional justice literature highlights various trade‐offs involved in the choice and implementation of lustration as a transitional justice measure in Central and Eastern Europe. This article examines how international legal body rulings on lustration laws have interpreted rule‐of‐law versus justice concerns. The European Court of Human Rights and the International Labour Organization have explored possible information problems, due process violations, employment discrimination issues, and bureaucratic loyalty concerns within the context of lustration. Three findings emerge from their legal rulings. First, contrary to popular notions, international legal bodies are not antilustration. The institutions are engaging with questions regarding the fair implementation, not the legality, of lustration laws. Second, the prioritizing of justice concerns during the transition efforts is highlighted as a way to lay a strong democratic foundation. Third, the organizations have emphasized the importance of placing rule of law in historical context, thereby situating post‐Communist societies within other posttotalitarian regime‐building narratives.


ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.


Author(s):  
Egidijus Küris

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.


2020 ◽  
pp. 162-181
Author(s):  
Ireneusz Paweł Karolewski

This chapter focuses on Central and Eastern European (CEE) member states of the EU, and how they positioned themselves in the new constellation of conflicts within the EU in the aftermath of the multiple crisis. It deals mainly with the Visegrad Group (V4) and explores its ‘repositioning’ in regard to two crisis-ridden policy fields of the EU: controversies about the rule of law and the refugee crisis. With regard to the former issue, the chapter discusses Poland as the most prominent case among the CEE countries. Against this background, it highlights two specific aspects of domestic politics: the memory games that the V4 countries play with their past and the Euroscepticism of government circles as well as a broader public.


2015 ◽  
Vol 39 (3) ◽  
pp. 318-346 ◽  
Author(s):  
Martin Mendelski

What impact does the European Union (eu) have on the development of the rule of law in South Eastern Europe (see)? The author of this article argues and shows that the eu has: 1) a positively reinforcing (healthy) effect with regard to judicial capacity and substantive legality, i.e. the alignment of domestic legislation with international standards, and 2) a negatively reinforcing (pathological) effect with regard to judicial impartiality and formal legality (the inner morality of law). The author explains the pathological impact of eu-driven rule of law reforms by referring to the eu’s deficient reform approach and to unfavorable domestic conditions, which in their interplay reinforce certain reform pathologies (legal instability, incoherence, politicization) that undermine the rule of law. The main argument is supported by a mixed method study. A quantitative indicator-based analysis measures rule of law development across four key dimensions on the basis of a variety of data (e.g. survey-based indicators, cepej data, and a unique dataset on legislative output). Additionally, the author draws on a number of qualitative interviews that he conducted with magistrates from see and representatives from the eu, the European Court of Human Rights, and the Council of Europe. The author concludes from these findings that external rule of law promotion in weak rule of law countries is not transformative, but rather reinforces systemic deficiencies that undermine the rule of law.


2011 ◽  
Vol 12 (5) ◽  
pp. 1231-1260 ◽  
Author(s):  
Markus Fyrnys

The institutional design of the Strasbourg system that has evolved over the last decades is an expression of contemporary debates surrounding the system's very nature and purpose. The current debate primarily bears on the range of choices that the Council of Europe faces in adapting to the changes in Europe, which largely have been caused by its expansion to cover nearly all post-Communist States of Central and Eastern Europe since the 1990s. This expansion, and with it the extension of the scope of the European Convention on Human Rights (the Convention) to now more than 800 million people in forty seven countries, has confronted the European Court of Human Rights (the Court) with a far broader range of human rights problems than had previously existed. By 2010, the number of pending cases had risen to 139,650 but the Court's adjudicative capacity remains limited.


2020 ◽  
Vol 10 (2) ◽  
pp. 143-153
Author(s):  
Gamze Ovacik

The term, de facto detention, refers to instances in which foreigners are held or deprived of their liberty usually with a view to preventing their entry into a country or expelling them from a country, but without implementing a legally prescribed detention regime that satisfies the criteria of the rule of law. The first type of de facto detention occurs when provisions regulating detention are absent or deficient in the legal framework. The second type takes place when domestic law sufficiently regulates detention regimes; however, the law is not duly implemented in practice. This article examines judicial practices in Turkey in both categories of de facto detention, analysing 37 Turkish court decisions with supporting case law from the European Court of Human Rights. Focusing on case law makes it possible both to track deficiencies in administrative practices and to analyse judicial response as a tool for rectifying unlawful administrative practices.


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