The European Court of Human Rights: Promoter or Predator of Democratic Transitions?
By Alice Panepinto, Research Fellow, Centre for Human Rights in Practice, Warwick University, UK
The workshop on the ECHR and Democratic Transitions hosted in Istanbul by the Center for Global Public Law (Koç University Law School) and PluriCourts (University of Oslo) in September 2015 brought together a diverse group of interdisciplinary researchers exploring how the Court in Strasbourg facilitates or impedes transitions to democracy. The workshop’s proposed aims were to “define and analyze varieties of “democratic models” and “democratic transitions” on the basis of the jurisprudence of the Strasbourg Court”, taking into account the “different typologies or phases of democratic transitions in which the Court has been involved” from post-World War II to the present day.
Can margin of appreciation help bolster democracy?
The first day began with Andreas Føllesdal (PluriCourts, University of Oslo) discussing whether the margin of appreciation benefits or hinders the ECtHR’s contribution to democratic transitions. His paper proposed that “the margin of appreciation doctrine, charitably interpreted, may help the Court in its subsidiary role of supporting and bolstering democracy, rule of law and human rights”. This provoked many questions that set the tone for many recurring themes that emerged throughout the workshop. For instance, the group discussion explored the distinction between the ECtHR and a constitutional court in light of the relationship between the so-called ‘European consensus’ and the margin of appreciation. The difficulties surrounding the proportionality test and whether the margin of appreciation may let some states ‘off the hook’ for certain violations were also debated.
The Court’s different attitudes towards the post-Nazi and post-Fascist transitions
The second paper, by Aleksandra Gliszczyńska-Grabias (Poznań Human Rights Centre), analysed specific examples of how the Court interpreted and treated legal restrictions in different contexts. In particular, she explored and sought to explain the differences between the ECtHR’s attitudes towards the post-Nazi and post-Fascist transitions, and towards the more recent transitions in post-Communist states. This raised important questions about the notion of ‘militant democracy’ as well as the Court’s pragmatism and pedagogic function.
Apparent Paradoxes in the ‘Militant Turn’ of the ECtHR
The following presentation explored the paradoxes in the ‘militant turn’ of the ECtHR through Refah Partisi v Turkey. Claudio Corradetti (PluriCourts, University of Oslo) critically discussed some of the normative principles that underpin democratic theory and warned of the paradoxes of balancing democracy and human rights. He then considered how Islamist parties have been treated in the Court’s transitional jurisprudence. These ideas were explored further in relation to the margin of appreciation in the Q&A, as well as the possibility of the Court to reinterpret ‘transitional justifications’ over time – including its understandings of secularism.
Oblique Promotion of Transitions?
Expanding on the idea of the ECtHR’s ‘oblique promotion of transitions’, Antoine Buyse (Netherlands Institute of Human Rights) examined relevant case-law on freedom of expression and information. As information is dealt with differently in transitional contexts, its control or release, as well as the process through which it is managed, acquire a different meaning. Examples of this include the uses (and prohibitions) of certain political symbols, the processes in which history is interpreted and debated, the limitation of hate speech and the tensions between accessing or burying the past, which involve accessing personal information (files) as well as other materials that may also serve public interests. The group discussion inquired further into the effects of the passage of time on stability and feelings of victims/survivors, the importance of preserving pluralistic debates and the challenge of balancing different rights (e.g. art 8 and 10) – and how the Court addresses or should address these challenges.
The Court and the promotion of remedies
Then co-organiser Başak Çalı introduced the topic of remedies awarded by the ECtHR, which is generally more preoccupied with substantive jurisprudence. Her paper argued that the Court should progress from its declaratory focus and promote remedies more actively. This sort of judicial activism, she suggested, may persuade closer conformity to judgments. The discussion that followed also explored the topic of pilot judgments as a means to develop transitional jurisprudence that is both case-specific and issue-specific.
The usefulness of the right to truth
The conversation then shifted towards the specific issue of the right to the truth as part of the Court’s transitional jurisprudence, which was developed in two separate papers. Firstly, James Sweeney (Lancaster University) discussed the many beneficial uses of ‘the imaginary right to the truth’, which has emerged not as an autonomous right but as an underpinning value, especially in relation to disappearances. He also considered cases involving historical, pre-ratification, confirmed killings, such as the Janowiec v Russia case regaring the Katyn massacre of 1940, in which the Court missed an opportunity to consider the context of transition as a basis for a rights-vindicating approach.
Secondly, Alice Panepinto (Warwick University) discussed what the Strasbourg Court may bring to the development of the right to the truth under international law. In particular, she reflected on the significance of the Court’s shy acknowledgement of the right to the truth in recent cases and suggested that these developments are both receptive and constitutive of the global debate around the right to the truth (which did not originate in Europe), constituting an important tool for survivors to find out about abusive histories.
Democratic Transition through Democratic Debate
On the final day of the workshop Alain Zysset (European University Institute) addressed the question of democratic transitions through democratic debate and focused on ECtHR case-law involving Turkey. His paper explored the examples of electoral freedom and freedom of expression, as well as the Court’s attempts to define the concept of ‘democratic society’ and the attention it affords to the public interests at stake. The discussion then focused on specific cases on radical Islam, the Kurds and Ataturk’s memory, and attempted to reconstruct the rationale behind these decisions through democratic theory. In the Q&A, the conversation focused on the value of the ‘marketplace of ideas’ vis-à-vis the state’s duty to create an enabling environment for effective freedom of speech and democratic debate.
The ECtHR’s dual role in democratic transition: The case of Turkey
The last paper also focused on the case of Turkey in relation to the ECtHR’s dual role in democratic transition. Dilek Kurban (Hertie School of Governance, Berlin) analysed the challenges posed by emergency rule that coexists with transition in the Turkish context, reflecting also on the more general problems with procedural v substantive democracy. She argued that the ECtHR displayed undue deference to government in its jurisprudence, which in turn became a missed opportunity for the development of transitional justice. The discussion then considered a series of recent cases that were decided in a context of ongoing violations, and calls into question judicial politics and the primacy of the executive.
Absence of clear jurisprudence- more research relevant
The workshop ended in a wrap-up session in which the organisers summarized the key themes that emerged from the papers and discussions, which will translate into future research about the ECtHR and transitional justice. In the absence of a clear jurisprudence by Strasbourg on transitions to democracy, this research will continue to be relevant to the debates and critiques.