Book: 'The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives edited by Iulia Motoc and Ineta Ziemele' [Cambridge University Press Cambridge 2017] ISBN: 978-1-107-13502-4
Review Author: Sophie Gallop *
The fall of the USSR in 1991 thrust numerous ex-Soviet states into sudden political transition (pxxvv). In response the Council of Europe was opened up to signatories, encouraging those nations to adopt the values of the organisation, including the human rights standards contained in the European Convention on Human Rights (ECHR) (pxxvv).
The title of the book gives the reader a very clear indication of what to expect; this volume surveys the national experiences of the nineteen state signatories from Central and Eastern Europe that joined the Council of Europe, and signed and ratified the ECHR, between 1992 and 1998 (p1). The focus of this book is on the case law of these states before the European Court of Human Rights (ECtHR), the effect that case law from the ECtHR has had within these states, and how the ECHR, and rulings from the ECtHR, have been incorporated into respective domestic legal jurisdictions.
There are twenty-two chapters in all; nineteen of which are specifically committed to dealing the experiences of new state signatories to the ECHR. The national experiences of each state are addressed in a separate chapter, and states are tackled alphabetically. Each of these chapters is structured with a degree of uniformity, and certain aspects are dealt with in all chapters. The aspects of uniformity ensure that a number of issues are dealt with in extensive detail; including a discussion of the ECtHR case law in respect to the relevant state and analysis of the impact this case law has had at the national level. Whilst there are differences in focus throughout the chapters, this flexibility allows each author to highlight the aspects of the relationship between the ECtHR and state that they believe is most relevant. With respect to cases that have appeared before the ECtHR authors have taken numerous approaches; some have elected to undertake in depth analysis of each article of the convention in relation to case law from that country, others have instead chosen to give in-depth analysis of a few selected cases, and others still have taken a road somewhere in between. Similarly, whilst each author, either directly or as part of a broader discussion, tackles a detailed investigation of the relationship between the ECtHR and the judiciary, many of the authors go further and explore the relationship between those judgments and the legislative and executive branches of government in the state. Each of these reports gives the reader extensive insight into relevant case law arising from the state, and the manner in which that case law has, or occasionally hasn't, being effectively incorporated into the domestic jurisdiction.
The book also demonstrates the ways in which the membership of central and eastern European countries has impacted the ECtHR. In particular, Motoc notes in the introduction that the inclusion of these states from Central and Eastern Europe in the Council of Europe drastically changed the number and make-up of cases before the ECtHR, a fact that the Court itself had no control over (p10). Nonetheless, the volume demonstrates that despite initial concerns that the inclusion of the states would lead to a watering down of rights under the ECHR (p199), cases from those states before the ECtHR have instead strengthened state's understanding of their obligations under the convention (p499). In particular, cases arising from Central and Eastern European states concerning freedom of movement (article 2) and freedom of expression (article 10) have led to a refinement of these concepts before the ECtHR (p499), and have had a direct impact on decisions by domestic governments to change standards within states (pxxvi).
For scholars seeking to understand democratic change in Central and Eastern Europe it is important to note the relatively narrow remit of the book. Whilst it clearly demonstrates the lasting effects that the ECHR has had within the countries examined, the broader historical and current human rights situation is not discussed in any great detail. In addition, the book does not deal in any depth with broader factors involved in the democratisation process in Central and Eastern European states, including drastic changes in politics in the region and increased monitoring and intervention from institutions including civil society and the United Nations.
Nonetheless, the comprehensive and in-depth information about each state ensures that the volume provides an invaluable and authoritative tool for those seeking a greater understanding of the democratisation process with respect to the ECHR. Many of the contributors are current or former members of the ECtHR or of the respective state's constitutional court, and the expertise of the authors is apparent in each chapter. The volume also reminds us that democratisation is an on-going process; demonstrating both the great strides towards democracy that these states have already made, but also highlighting those steps that still need to be undertaken. In particular numerous authors stress the need for the Convention, and the rulings of the ECtHR, to be further incorporated into the legal thinking of the domestic jurisdiction.
Importantly, the compilation reiterates through numerous examples the relative nature of democratisation, illustrating the vast diversion in experiences of the respective central and eastern European states. In Albania, for example, many of the earliest cases before the ECtHR were related to property rights, whilst in Poland earlier cases often dealt with issues of restitution. As a consequence of these experiences, and of the receptiveness of respective governments to apply and incorporate relevant ECtHR case law, the reader is aware throughout of the varying degrees of progress made in these nations.
The compilation does convincingly establish both direct and indirect impact by the ECHR on lasting democratic change in all of the states included in the volume. In many states, judgments of the ECtHR have resulted in a change in domestic legislation or the application of domestic law. For groups such as journalists these decisions have had wide-reaching effects. In Montenegro, for example, the application of several cases related to article 10 right to freedom of expression ( Sabanovic v Montenegro and Serbia; Koprivica v Montenegro) demonstrably changed the Constitutional Court of Montenegro's approach to issues of defamation (p298-299). In other states, membership of the ECHR led to a decision to reform the law prior to any cases appearing before the ECtHR. In Poland, for example, after ratification of the convention, the Code of Criminal Procedure was amended to allow application for judicial review on issues of legality of arrest and to protect individuals from arbitrary deprivation of liberty (p312).
In conclusion, the book, whilst in no way exhaustive, provides authoritative and extensive guidance of the impact of the ECHR on democratic change in central and Eastern Europe. The layout is clear and comprehensive, and the editors have ensured that peculiarities of the domestic workings of each state are explored in extraordinary detail. In addition, whilst there is not necessarily in-depth discussion of cases before the ECtHR, the way in which states have interpreted, applied, and incorporated those judgments is meticulously addressed by each contributor. Of final note is the fact that, given the current Europe-sceptic and human rights-sceptic environment, the volume repeatedly demonstrates the positive impact that the ECHR has had in these countries, this publication may have a far wider audience and readership than originally intended.
* Lecturer in Law at Nottingham Law School, Nottingham Trent University