Transitional Justice and Temporal Parameters: Built-In Expiration Dates?

2020 ◽  
Author(s):  
Cynthia M Horne
Keyword(s):  
Transitional Justice ◽  
Fixed Time ◽  
Optimal Timing ◽  
Public Disclosure ◽  
Council Of Europe ◽  
European Court ◽  
Long Duration ◽  
Continued Use ◽  
Public Disclosures ◽  
Venice Commission

Abstract Temporal assumptions associated with personnel reforms, such as lustration and public disclosure programs, both prescribe the optimal timing for the onset of measures and proscribe a long duration for such measures. In the context of the post-communist transitions, these assumptions suggested that lustration and public disclosures should be enacted as soon as possible after a regime transition, with the legitimacy, motives, and legal appropriateness of delayed measures being questioned. In terms of duration, personnel reforms should have fixed time limits, often suggested as no more than a decade. This article critically explores the evolution of these temporal assumptions through an examination of the legal rulings, intergovernmental policies, and recommendations of the Parliamentary Assembly of the Council of Europe, the European Court of Human Rights, and the Venice Commission. The article illustrates the tension between the continued use of the measures by some post-communist states and international rulings signalling their expiration.

Classifying Countries within the Transitional Justice Typology

2017 ◽  
Author(s):  
Cynthia M. Horne
Keyword(s):  
Transitional Justice ◽  
Truth Commissions ◽  
Public Disclosure ◽  
Employment Change ◽  
The Czech Republic ◽  
File Access ◽  
Independent Variable ◽  
Public Disclosures

Chapter 2 explores each of the country cases in this project, namely the Czech Republic, Slovakia, Hungary, Poland, Romania, Bulgaria, Estonia, Latvia, Lithuania, Russia, Ukraine, and Albania. The chapter provides historical details of the transitional justice reforms in all twelve countries from 1989–2013, covering lustration, file access, public disclosures, and truth commissions. This material is then used to place each country case within the typology developed in Chapter 1, according to whether the measures were expansive and included compulsory employment change, limited and included largely voluntary employment change, informal and largely symbolic, or actively rejected. The chapter provides variable conceptualization and operationalization specifics to be used in the subsequent statistical analyses, including three different lustration variables, a truth commission variable, and timing of reform variables. It provides qualitative, comparative historical details to justify the classification of countries according to the primary independent variable, namely lustration and public disclosure programs.

scholarly journals The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal

2021 ◽  
pp. 1-15
Author(s):  
Başak Çalı ◽  
Esra Demir-Gürsel
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Political Context ◽  
Secretary General ◽  
Special Issue ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
European Court ◽  
Institutional Features ◽  
Venice Commission

Abstract This article introduces the Special Issue on ‘The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections’. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE’s ability to produce timely, consistent, and co-ordinated responses against systemic threats.

The New Hungarian Constitution: Legal Critiques from Europe

2017 ◽  
Vol 42 (1) ◽  
pp. 1-49 ◽  
Author(s):  
Katalin Kelemen
Keyword(s):  
European Union ◽  
International Organizations ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
Different Types ◽  
Fundamental Law ◽  
Legal Arguments ◽  
Venice Commission ◽  
Legislative Reforms

Hungarian constitutional and legislative reforms have been in the spotlight since Hungary’s adoption of a new Fundamental Law, which entered into force on the first day of 2012. Europe’s two leading international organizations (the Council of Europe and the European Union) already issued an opinion about it the year before its entry into force, and they continued to closely follow Hungarian constitutional developments during ensuing years. The new Fundamental Law was followed by a series of new ‘cardinal laws’ and many controversial reforms. This article presents and discusses the opinions delivered by the Venice Commission, the European Court of Human Rights, and the eu institutions on these reforms and the different types of arguments on which they relied. This article also aims to present the interaction between the Hungarian government and Europe’s two leading organizations concerning the new constitutional setting of Hungary, focusing on the legal arguments in each case.

Europe to the Rescue

2019 ◽  
pp. 192-241
Author(s):  
Wojciech Sadurski
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
The European Union ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
European Court ◽  
Venice Commission ◽  
Naming And Shaming ◽  
Near Future ◽  
The Eu

The Council of Europe (CoE) and the European Union (EU) possess significant legal instruments to affect and reverse anti-democratic changes in Poland, and some of these instruments have already been used, with varying degrees of success. The chapter opens with the CoE’s, and in particular the Venice Commission and the European Court of Human Rights’ contributions to policing Polish assaults on the rule of law. It then turns to the EU, and reflects upon the question as to whether the EU—with its assortment of different measures of ‘naming and shaming’ (Art. 7.1 Treaty on European Union (TEU)), sanctions (Arts 7.2 and 7.3 TEU), and legal infringement actions, as well as its newly crafted ‘rule of law framework’ (also known as the pre-Article 7 procedure)—has been so far, and can be in the near future, effective in cabining and reversing anti-democratic trends in one of its largest member states. The conclusion is affirmative: the EU has an important, even if limited, role to play in assisting Polish defenders of the rule of law and democracy.

scholarly journals Kosovo’s Quest for Council of Europe Membership

2018 ◽  
Vol 43 (3) ◽  
pp. 255-273
Author(s):  
Kushtrim Istrefi
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Development Bank ◽  
Council Of Europe ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Government ◽  
Venice Commission ◽  
Direct Applicability

In 2014, Kosovo became a member of two Council of Europe (CoE) partial agreements: on the Development Bank and on the European Commission for Democracy through Law (the Venice Commission). More recently, the Government of Kosovo expressed an interest in joining the CoE. This article examines, in the context of Kosovo’s contested statehood, the conditions and procedure for Kosovo’s possible admission to the CoE and describes, in the form of an early warning, the key legal and policy issues that could arise in this process. Insofar as membership criteria are concerned, the article examines Kosovo’s ability to exercise jurisdiction over its territory. In this regard, the case of Azemi v. Serbia before the European Court of Human Rights (ECtHR or the Strasbourg Court) and the EU-facilitated agreements between Belgrade and Pristina are considered. In addition, the article argues that that the direct applicability of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the ECtHR’s case law in Kosovo are evidence of Kosovo’s commitment to fulfilling one of the essential membership criteria. Regarding Kosovo’s prospects for admission, the article submits that the recognition of Kosovo by more than two-thirds of the Council’s member states is an indicator that, in principle, Kosovo could ensure the votes necessary for admission. However, it also highlights the specific challenges Kosovo may encounter in its membership path due to complex admission procedures within the CoE Committee of Ministers and the composition of the members of the CoE Parliamentary Assembly (PACE).

Trust and Transitional Justice

2017 ◽  
Author(s):  
Cynthia M. Horne
Keyword(s):  
Literature Review ◽  
Transitional Justice ◽  
Interpersonal Trust ◽  
Social Institutions ◽  
Public Institutions ◽  
Public Disclosure ◽  
Trust In Government ◽  
Change Characteristic ◽  
Communist Countries

Chapter 1 provides a literature review upon which to build the theoretical scaffolding of this book and explicates the development of the lustration typology. The chapter reviews the trust literature, highlighting differences in the origins and effects of trust in public institutions, trust in government, interpersonal trust, and trust in social institutions. Chapter 1 also reviews the literature on lustration and transitional justice, highlighting the design and use of measures in the post-communist region. From this literature, Chapter 1 develops a transitional justice typology consisting of four different categories of lustration and public disclosure programs based on the scope and implementation of programs and the degree of bureaucratic and symbolic change characteristic of the different programs. This typology is then used to categorize post-communist countries in Chapter 2.

Council of Europe

2018 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Committee ◽  
European Court ◽  
Human Rights Treaties ◽  
Fundamental Freedoms ◽  
Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

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.

Domestic Investigation and Prosecution of Atrocities Committed during Military Operations: The Impact of Judgments of the European Court of Human Rights

2013 ◽  
Vol 46 (3) ◽  
pp. 369-404
Author(s):  
Silvia Borelli
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Full Potential ◽  
Remedial Measures ◽  
Legal Systems ◽  
Military Operations ◽  
Council Of Europe ◽  
Proactive Approach ◽  
European Court ◽  
The Impact

The undeniable impact of the European Convention on Human Rights on the legal systems – and the wider society – of Member States of the Council of Europe would not have been possible without its unique monitoring system, centred around the European Court of Human Rights and the Committee of Ministers of the Council of Europe. The present article assesses the extent to which the European Court's judgments that have found violations of the procedural obligations under Articles 2 and 3 of the Convention to investigate unlawful killings, disappearances, acts of torture or other ill-treatment have, in fact, led to an improvement in the capability of the domestic legal systems of states parties to ensure accountability for such abuses. On the basis of four case studies, it is concluded that the European Court's judgments, coupled with the supervisory powers of the Committee of Ministers, have the potential to make a very great impact on the capability of domestic legal systems to deal with gross violations of fundamental human rights, and have led to clear and positive changes within the domestic legal systems of respondent states. Nevertheless, this is by no means always the case, and it is suggested that, in order for the Convention system to achieve its full potential in the most politically charged cases, the European Court should adopt a more proactive approach to its remedial powers by ordering specific remedial measures, to include in particular the opening or reopening of investigations.

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