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 Cyprus – the
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.
