Content

Jernej Letnar Černič, Human Rights as a Motor of European Integration in:

Jörn Axel Kämmerer, Markus Kotzur, Jacques Ziller (Ed.)

Integration und Desintegration in Europa | Integration and Desintegration in Europe | Intégration et Désintégration en Europe, page 87 - 106

1. Edition 2019, ISBN print: 978-3-8487-6131-9, ISBN online: 978-3-7489-0222-5, https://doi.org/10.5771/9783748902225-87

Series: Societas Iuris Publici Europaei (SIPE), vol. 13

Bibliographic information
Human Rights as a Motor of European Integration Jernej Letnar Černič* Abstract Human rights and fundamental freedoms are essential preconditions for the func‐ tioning of every constitutional democracy based on the rule of law. They provide fundamental foundations for pluralistic, tolerant and open societies, which states are obliged to guarantee through their negative and positive obligations. In the past, human rights have been used as a necessary tool move away from authori‐ tarian and totalitarian exercises of state power, mostly in Central and Eastern Eu‐ rope. This chapter therefore asks whether human rights can serve as an efficient motor of integration between different parts of Europe, unifying them in the common European public order, which is based on constitutional democracy, the rule of law and respect for human rights. More specifically, it concentrates on human rights as a motor of integration between Western and Nordic European countries on the one hand and Central and Eastern European Countries on the other in the past three decades after the fall of totalitarian regimes behind the Iron Curtain. It will attempt to examine human rights as a motor integration by examining the compliance with the European Convention as not only the princi‐ pal human rights document in Europe, but also that of European integration. It will do so also by examining judgments of the European Court of Human Rights against countries of Central and Eastern Europe and their execution in domestic constitutional systems. Introduction Over the last century, the European continent has suffered from several challen‐ ges to the rule of law and human rights protection. More recently from 1945 to 1990, it has been divided in two parts: one that was based on constitutional de‐ mocracy and the rule of law; and the other that has been governed by totalitarian and authorities regimes which ruled by law and systematically violated human I. * Associate Professor of Constitutional and Human Rights Law, Faculty of Government and European Studies Nova Univerza, Ljubljana and Kranj. 87 rights.1 In the past decade, human rights and fundamental freedoms have been highlighted as one of the principle factors in overturning totalitarian and authori‐ tarian rule in Central and Eastern European. They are essential preconditions for the functioning of every constitutional democracy based on the rule of law, as they curtail excessive power of societal and governmental elites. They provide fundamental foundations for pluralistic, tolerant and open societies, which states are obliged to guarantee through their negative and positive obligations.2 In the past, human rights and the rule of law have used as a necessary tool to move away from authoritarian and totalitarian exercises of state power, mostly in Cen‐ tral and Eastern Europe.3 The preamble of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR or European Convention) provides that it is based on the “profound belief in […] fundamental freedoms which are the foun‐ dation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend, ” and “as the go‐ vernments of European countries which are like-minded and have a common he‐ ritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Univer‐ sal Declaration”.4 However, the European Convention has been adopted only by Western and Nordic European States, as in 1950 several states from Central, Eas‐ tern and Southern Europe were under totalitarian rule, which did not protect indi‐ viduals against the arbitrary power of state authorities. Nonetheless, after the fall of these totalitarian regimes, the European Convention has been taken up by the newly democratised and independent states of Central and Eastern Europe.5 They have at least formally taken up human rights standards in their positive law and 1 See, for instance, Thimothy Snyder, Bloodlands: Europe Between Hitler and Stalin, 2010; Tony Judt, Thinking the Twentieth Century With Tony Judt, 2012; Thimothy Snyder, Black Earth: The Holocaust as History and Warning, 2015; Timothy Garton Ash, The File: A Personal History, 1997; Timothy Garton Ash, In Europe's Name: Germany and the Divi‐ ded Continent, 1993; Timothy Garton Ash The Magic Lantern: The Revolution of 1989 wit‐ nessed in Warsaw, Budapest, Berlin, and Prague, 1990; Timothy Garton Ash, The Uses of Adversity: Essays on the Fate of Central Europe, 1989. 2 See, for example, Martti Koskenniemi, The Gentle Civilizer of Nations, The Rise and Fall of International Law 1870–1960, 2011. 3 Giovanni Palombella, The rule of law and its core, in: Giovanni Palombella / Niel Wal‐ ker (eds), Re-locating the rule of law, 2009, p. 17–42; and Michael Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, in: Southern California Law Rev, 74 (2001), p. 1307. 4 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, 3. September 1953. 5 Ibid. Human Rights as a Motor of European Integration 88 introduced checks and balances of the rule of law.6 However, it appears this tran‐ sition has been neither fully, nor successfully completed.7 It has been difficult to change the mentality of people living and working in these countries.8 It seems that therefore the values of the rule of law have not been fully internalized.9 Human rights protection and the rule of law are backbones of every constitu‐ tional democracy. They are pillars that safeguard the basic rights of vulnerable individuals against the often arbitrary power of state authorities. This chapter therefore asks whether human rights can serve as an efficient motor of integrati‐ on between different parts of Europe, unifying them in the common European public order, which is based on constitutional democracy, the rule of law and re‐ spect for human rights. More specifically, it concentrates on human rights as a motor of integration between Western and Nordic European countries on the one hand and Central and Eastern European Countries on the other hand in the past three decades after the fall of totalitarian regimes behind the Iron Curtain. It will attempt to examine human rights as a motor of integration by examining the compliance with the European Convention as not only the principal human rights document in Europe, but also that of European integration. It will do so also by examining judgments of the European Court of Human Rights against countries of Central and Eastern Europe and their execution in domestic constitutional sys‐ tems. Divided in five sections, this chapter first deals in Section II with the concept of Human Rights as a Motor of European Integration: first, by examining the concept of human rights; and second, by providing theoretical underpinnings of Human Rights as a Motor of European Integration. Section III examines the his‐ torical experiences of Central and Eastern European countries, thereby providing historical background for the human rights and rule of law crises of Central and Eastern European Countries. Section IV explores the workings of the European Court of Human Rights as a motor of European Integration between mature con‐ stitutional democracies in Nordic and Western Europe on the one hand, and tran‐ 6 Martin Krygier, The rule of law, in: Michel ROSENFELD / András SAJÓ (eds.), Oxford handbook of comparative constitutional law, 2012, p. 233–249. See also Martin Krygier, The rule of law: pasts, presents, and two possible futures, in: Annual Review Law Soc Sci, 12 (2016), p. 199–229. 7 Bojan Bugarič / Alenka Kuhelj, Slovenia in Crisis: A Tale of Unfinished Democratization in East-Central Europe, in: Communist and Post-Communist Studies, 48 (2015), p. 273–279. 8 Alenka Kuhelj / Bojan Bugarič, A day in the life of post-communist Europe, in: Hague journal on the rule of law, 8 (2016), p. 183-190; Michael Bobek, The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries, in: European Public Law, 14 (2008), p. 1, p. 15, p. 16. 9 Bojan Bugarič, The rule of law derailed: lessons from the post-communist world, in: Ha‐ gue J Rule Law, 7 (2015), p. 175–197; Czarnota / Krygier / Sadurski, Introduction, in: Martin Krygier / Wojciech Sadurski (eds.), Rethinking the rule of law after communism, 2015. Jernej Letnar Černič 89 sitional democracies from Central and Eastern Europe on the other. It investiga‐ tes if constitutional and human rights protections reforms have also been transla‐ ted into practice. In this way, Section V drafts some suggestions as to how to proceed with reform in order for Central and Eastern European countries to deve‐ lop into fully-fledged constitutional democracies based on the effective applicati‐ on of the rule of law and human rights protections. All in all, this chapter argues that human rights can be employed as a motor of European Integration, but also as a driver of societal change. The Concept of Human Rights as a Motor of European Integration This section first studies concepts of human rights and thereafter in the second part develops the theoretical underpinnings of human rights protection as a motor of European Integration. The Concept of Human Rights Human rights and fundamental freedoms are the concept which concretises va‐ lues of human dignity, freedom, equality, solidarity and pluralism.10 They belong to human beings by the fact of their existence. Human dignity, as an individual and a collective value particularly underpins the functioning of the democratic society.11 It includes both the physical and intellectual integrity of human beings.12 They are in theory universal in nature, but in practice it is more appro‐ II. 10 See, for example, Heiner Bielefeldt, Philosophical and Historical Foundations of Human Rights, in: Catarina Krause / Martin Scheinin (eds.), International Protection of Human Rights: A Handbook, 2009, p. 3-18. Marie-Bénédicte Dembour, What Are Human Rights? Four Schools of Thought, in: Hu‐ man Rights Quarterly 32 (2010), p. 1 – 20. See also Jürgen Habermas, The Concept of Human Dignity and the Realistic Utopia of Human Rights, in: Metaphilosophy, 41 (2010), p. 464 – 480. 11 Jernej Letnar Černič, Varstvo človekovega dostojanstva v slovenski družbi, in: Tine HRIBAR (ed.) et al. Prenova Evrope, 2017, p. 159-169. See also Chirstopher McCruden, Human Dignity and Judicial Interpretation of Human Rights, in: European Journal of In‐ ternational Law, 19 (2008), pp. 686-694. See also UN Human Rights Committee, Manuel Wackenheim v. France, no. 854/1999, U.N. Doc. CCPR/C/75/D/854/1999 (2002), para 7.4. 12 Andrew Clapham, Human Rights Obligations of Non-State Actors, 2006, p. 214. See also Lovro Šturm, in: Lovro Šturm (ed.), Komentar Ustave Republike Slovenije, 2002, p. 362. See also Janez Juhant, Etična presoja človekovega dostojanstva, in: Bogoslovni vestnik, 64 (2004), p. 445-458 (p. 456-457); Neomi Rao, Three Concepts of Dignity in Constitutio‐ nal Law, in: Notre Dame L. Rev., 86 (2013), p. 183. Human Rights as a Motor of European Integration 90 priate to refer to relative universality within specific geographic areas.13 All hu‐ man beings have equal and inalienable rights by virtue of their inherent dignity and are entitled to enjoy these rights fully. Human rights primarily protect indivi‐ duals; however they are beneficial to society as a whole. Shue notes that “[r]ights are basic [...] if enjoyment of them is essential to the enjoyment of all other rights.”14 States are obliged primarily to observe the enjoyment of fundamental human rights as the lowest common denominator. Human rights protect predomi‐ nant and overriding values that are arguably common and shared in all societies across the world.15 They are grounded in the essential minimum of the values of human dignity, equality, and freedom, which most communities worldwide share consensus over. They have derived their legitimacy from the inherent tenets of the value system which forms a part of positive law in most national legal orders. It may therefore appear that a lowest common denominator can be drawn in rela‐ tion to human rights and fundamental freedoms of individuals. There exists a significant universal interest and consensus in protecting funda‐ mental norms to prevent shocking and egregious conduct by states and other ac‐ tors. Some fundamental human rights arguably amount to rules which are “ac‐ cepted and recognized by the international community of States as a whole as norms from which no derogation is permitted.”16 It is argued that such prohibiti‐ on applies also in relation to non-state actors. Most of those norms derive from national legal orders, but some of them also represent rules of customary interna‐ tional law and possibly peremptory rules of international law. Taken together, it appears that this approach has the advantage of preventing or reducing challen‐ ges to the proposition that states, individuals and corporations have minimum human rights obligations. It does so by advancing the philosophical and moral foundations of fundamental human rights which are common to cultures and so‐ cieties in different parts of the world. Such arguments are backed by acknow‐ ledgments that normative orders must first ensure protection of the most funda‐ mental human rights, as their enjoyment appears as a conditio sine qua non for the enjoyment of all other rights. This focus on fundamental human rights does not attempt to question that all human rights are interconnected and interdepen‐ 13 See, for example, Jack Donnelly, The Relative Universality of Human Rights”, in: Hu‐ man Rights Quarterly, 29 (2007), p. 281-306; Jack Donnelly, Universal Human Rights in Theory and Practice, 3rd ed., 2013; Eva rems, Human Rights: Universality and Diversity, 2001; Eva Brems s, Reconciling Universality and Diversity in International Human Rights Law, in: András Sajó (ed.), Human Rights with Modesty. The Problem of Universalism, 2004, p. 213-230. 14 Heny Shue, Basic Rights: Subsistence, Affluence and the U.S. Foreign Policy, 2 d ed., 1996, p. 19. 15 Eva Brems, Human Rights: Universality and Diversity, 2001, pp. 13-16. 16 Vienna Declaration on the Law of the Treaties, 23 May 1969, 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969), Article 53. Jernej Letnar Černič 91 dent of human rights, but rather seeks to argue that a concentration on human rights is appropriate also from the point of view of applying them as an integrati‐ on motor. Theoretical Underpinnings of Human Rights Protections as a Motor of European Integration Human rights hereby refer to all human rights and fundmental freedoms.17 Hu‐ man rights protections can serve as a motor of European Intergration in at least two aspects, particularly in transitional environments aiming to distance themsel‐ ves from turbulent times ripped with human rights violations. For instance, the European Convention emerged in November 1949 from the schocks caused by the atrocities, crimes and human rights violations after the Second World War.18 The preparatory works of the European Convention reveal that the drafters have one prinicipal aim in mind, namely that the atrocities of the Second World War should never be repeated on the Europen continent.19 One can partly agree with Duranti that "if not for the exceptional circumstances of the immediate postwar period, representatives from over a dozen nations would never have agreed on such a text".20 One thing is certain – it would have taken much longer for such a text giving the right to individual applicants to be adopted. Human rights can be used in the integration process and propel constitutional changes in two ways. First, human rights protections can be used as instruments of constitutional reform in transitional countries escaping from totalitarian and authoritarian regimes. In this way they constitute a language that transitional countries are required to adopt in order to proceed with constitutional reform with the objective of introducting the values, principles and rules of constitutio‐ nal democracy and placing themselves in the common European public space. This can be described as a formal phase and can either be compulsory or volun‐ tary, though it is mostly cumpolsory. In the European context, human rights pro‐ tections have been employed mostly as teaching tools for countries from Eastern 17 Philip Alston, A Third Generation of Solidarity Rights: Progressive Development or Ob‐ fuscation of International Human Rights Law?, in: Netherlands International Law Review, 29 (1982), p. 307-322; Susan MARKS, Emerging Human Rights: A New Generation for the 1980 s? in: Rutgers Law Review, 33 (1980), p. 435. 18 Ed Bates, The Evolution of the European Convention on Human Rights: From Its Incepti‐ on to the Creation of a Permanent Court of Human Rights, 2010, pp. 77-107. 19 Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights: Preparatory Commission of the Council of Europe, Committee of Ministers, Con‐ sultative Assembly, 11 May-8 September 1949, Council of Europe, Brill, Strasbourg, 1975. 20 Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transna‐ tional Politics, and the Origins of the European Convention, 2017, p. 386. Human Rights as a Motor of European Integration 92 Europe and elsewhere.21 In the final stages of the adoption of the European Con‐ vention, David Maxwell Fyfe supported its adoption as "a beacon to our friends who are now in the darkness of totalitarianism" and as "a passport for the return of their countries in our midst".22 However, once domestic systems have adhered to international or regional treaties such as the European Convention, they are obliged to execute the judgments and decisions mostly on the basis of domestic constitutions. The Venice Commission noted the following in its 2014 report: [...] the domestic legal order becomes a factor facilitating the implementation of in‐ ternational human rights obligations, particularly the respect for international monito‐ ring bodies’ decisions. However, this does not imply that the judgments are always perfectly implemented and that there is no resistance from national authorities.23 States can by complying with judgements of regional and international bodies strengthen both international and domestic rule of law. Second, human rights as a motor of European intergration can be successful only if it is followed up in the subsequent practice of stare institutions and the private sector. Constitutional normative reform needs to be followed by the dilli‐ gent and strict application of those rules by the practices of state, which are ba‐ sed on the rule of law and democracy. In other words, constitutional changes have to be reflect in practice to have any positive result.24 Legal historians have in the past proved that, for instance, the European Convention has been employ‐ ed as a tool for modernizing backward societies.25 However, its success depends much on how constitutional reform can be translated into the reform of mentali‐ ty, practices and ways of doing business. In this way it asks how successful Cen‐ tral and Eastern European states have been in translating the liberal values of Eu‐ ropean Convention in domestic constitutional systems.26 21 See, for example, Jochen Frowein, The transformation of the constitutional law through the ECHR, in: Israel Law Review, 41 (2008), pp. 489-499. 22 Report of the Sitting of the Consultative Assembly, 25 August 1950, morning, VI TP 74-143, p. 82, quoted in Willam Schabas, The European Convention on Human Rights : A Commentary, 1st edition, 2015, p. 8. 23 Council of Europe, European Commission for Democracy through Law (Venice Commis‐ sion), Report on the Implementation of International Human Rights Treaties in domestic law and the role of Courts, Study No. 690/2012, 8 December 2014, para. 36. 24 Tanja A. Börzel, When Europeanization hits limited statehood, KFG Working Papers 30, 2011; Cowles / Caporaso / Risse-Kappen, Transforming Europe: Europeanization and Domestic Change, 2001; Frank Schimmelfennig, The International Promotion of Political Norms in Eastern Europe: A Qualitative Comparative Analysis, in: CES Central & Eastern Europe Working Paper No. 61, 2004, pp. 1-21. 25 See, for example, Marco Duranti, European Integration, Human Rights, and Romantic Internationalism, in: Nicholas Doumanis (ed.), The Oxford Handbook of European Histo‐ ry, 1914-1945, 2016, pp. 440-458. 26 Dia Anagnostou (ed.), The European court of human rights: implementing Strasbourg’s judgments on domestic policy, 2013,pp. 1-24; Mads Andenas / Eirik Bjorge, National implementation of ECHR rights, in: Føllesdal / Peters / Ulfstein (eds.), Constituting Jernej Letnar Černič 93 All in all, human rights can serve as an integration tool at many levels: educa‐ tional, psychological and societal. They can function on intra-levels. However, the ultimate measure of success will be how often and how successful they are used in practice. The mentality of societies can often only be changed through long-term educational processes with the assistance of normative reform. Such processes can in turn cause societal reform that can change daily practices in both private and institutional spheres. The Historical Experience of Central and Eastern European Countries Central and Eastern European Countries have in the past century suffered under totalitarian regimes which have trampled on the human rights and fundamental freedoms of ordinary individuals.27 Ordinary people have been subjected to a plethora of violations and arbitrary interference of state authorities, whilst politi‐ cal and institutional elites indulged themselves in the privileges of totalitarian re‐ III. Europe – the European court of human rights in a national, European and global context, 2013, pp. 181-262. 27 Pavel Jamnik, Post-World War Two Crimes on the Territory of Slovenia: Police Investiga‐ tion and proof regarding criminal offences that do not fall under the statute of limitations, in: Peter Jambrek (ed.), Crimes Committed by Totalitarian Regimes, Slovenian Presidency of the Council of the European Union, 2008, p. 207. See also Jože Dežman, Communist Repression and Transitional Justice in Slovenia, in: Peter Jambrek (ed.), Ibid., p. 204; and Jerca Vodušek Starič, Kako se čistila Jugoslavija? Gordogan, 2004, p. 36–50. See also Jože Dežman,, Mass Post-War Killings, in: Drago Jančar (ed.), The Dark Side of the Moon, A Short History of Totalitarianism in Slovenia 1945–1990, 1998, p. 39–52; Mateja Jančar / Jernej Letnar Černič (eds.), Poročilo o pobojih : vmesno poročilo o raziskovan‐ ju povojnih množičnih pobojev Preiskovalne komisije Državnega zbora Republike Slove‐ nije o raziskovanju povojnih množičnih pobojev, pravno dvomljivih procesov in drugih to‐ vrstnih nepravilnosti, ki jo je vodil dr. Jože Pučnik, Ljubljana: Inštitut dr. Jožeta Pučnika, 2010; Lovro Šturm, O kratenju človekovih pravic in temeljnih svoboščin v Sloveniji v ob‐ dobju 1945-1950. V: Temna stran meseca: kratka zgodovina totalitarizma v Sloveniji 1945-1990 in Drago Jančar (ed.), Ljubljana: Nova revija, 1998, pp. 65-112. Lovro Šturm, Revolucionarno kazensko pravo na Slovenskem po drugi svetovni vojni. V: Brezpravje v imenu ljudstva: Zbirka Totalitarizmi- vprašanja in izzivi 5, in Mateja Čoh Kladnik (ed.), Ljubljana: Študijski center za narodno spravo, 2016, pp. 46-61. See also Gašper Dovžan, Urška Tekavec; Zgodovinski uvod v Komentar slovenske ustave. Temne strani slovenske pravne preteklosti v luči slovenske ustave: Argumenti Ustavnega sodišča Republike Slove‐ nije o hudih množičnih in strukturnih kršitvah človekovih pravic in svoboščin v Sloveniji v času prevlade ideologije in prakse komunizma 1945-1990. Dignitas – tematska številka, no. 11–12. Ljubljana, 2001. Peter Jambrek, Slovenska taborišča za prisilno delo – kdaj in zakaj. in: Peter Jambrek (ed.), Ženska taborišča: ženska kazenska taborišča za prisilno de‐ lo v Sloveniji 1949-1950, Kranj, Nova Gorica: Fakulteta za državne in evropske študije, Evropska pravna fakulteta, 2014, pp. 13-20. See also in detail Lovro Šturm, Ústavní sou‐ vislosti vyrovnávání se s totalitní minulostí ve Slovinsku, pp. 69–112, in edition: Vy‐ rovnání se s komunistickou minulostí ve státech střední Evropy : sborník příspěvků z Kon‐ ference středoevropských ústavních soudů. Brno: Linde Praha, 2003. Human Rights as a Motor of European Integration 94 gimes.28 Most violations of human rights have concerned systematic and general violations of human rights ranging from crimes against humanity to violations of the right to life, prohibition of torture, inhumane degrading treatment and punish‐ ment, and the right to fair trial.29 Additionally, those regimes have attempted to curtail freedoms such as the freedoms of religion, expression, assembly and asso‐ ciation. The Parliamentary Assembly of the Council of Europe has in its Resolu‐ tion 1481 (2006) on the “Need for international condemnation of crimes of tota‐ litarian communist regimes” observes that, (t)he totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violati‐ ons have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in con‐ centration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of poli‐ tical pluralism.30 It continues: The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the “elimination” of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast num‐ ber of victims in every country concerned were its own nationals. It was the case par‐ 28 See for example, Czarnota / Krygier / Sadurski, Introduction, in: Czarnota / Kry‐ gier / Sadurski (eds.), Rethinking the rule of law after communism, 2005, pp. 1-6. See also Bojan Bugarič, The rule of law derailed: lessons from the post-communist world, in: Hague Journal on the Rule of Law 7 (2015), p. 175–197; Alenka Kuhelj / Bojan Buga‐ rič, A day in the life of post-communist Europe, in: Hague Journal on the Rule of Law 8 (2016): p. 183–190; Paul Blokker, New democracies in crisis: a comparative constitutio‐ nal study of the Czech Republic, Hungary, Poland, Romania and Slovakia, 2012, pp. 1-9; Bojan Bugarič, Slovenia in crisis: a tale of unfinished democratization in East-Central Europe, in: Communist Post-Communist Stud, 48 (2015), p. 274. 29 See, for example Anne Applebaum, Gulag: A History, 2003; Anne Applebaum, Iron Cur‐ tain: The Crushing of Eastern Europe, 1944–1956, 2012; Anne Applebaum, Gulag Voices : An Anthology, 2011. See also Anne Applebaum, Red Famine: Stalin's War on Ukraine, Penguin Randomhouse, 2017; Cynthia Horne / Lavinia Stan (eds.), Transitional Justice and the Former Soviet Union: Reviewing the Past and Looking Toward the Future, 2018; Lavinia Stan / Lucian Turcescu (eds.), Justice, Memory and Redress: New Insights from Romania, 2017; Lavinia Stan / Diane Vancea (eds.), Post-Communist Romania at 25: Linking Past, Present and Future, 2015. See also Lavinia Stan / Nadya Nedelsky (eds.), Post-Communist Transitional Justice: Lessons from 25 Years of Experience, 2015. 30 The Parliamentary Assembly of the Council of Europe has in its Resolution 1481 (2006), “Need for international condemnation of crimes of totalitarian communist re‐ gimes«, Section 2. See also Gentian Zyberi / Jernej Letnar Černič, Transitional justice processes and reconciliation in the former Yugoslavia : challenges and prospects, in: Nor‐ dic journal of human rights, 13 (2015), p. 132-157; Bojan Bugarič /Alenka Kuhelj, Slovenia in Crisis: A Tale of Unfinished Democratization in East-Central Europe, in: Com‐ munist and Post-Communist Studies, 48 (2015), p. 273–279. Jernej Letnar Černič 95 ticularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims.31 Ordinary persons have been treated by totalitarian regimes not as subjects of rights, but as objects with which state authorities can interfere as and when they please. In this way, totalitarian regimes in Central and Eastern Europe have de‐ molished endless numbers of individuals and families in order to maintain and preserve the power and privileges of the governing elites at various levels of Communist parties. Institutional governance in those countries did not followed the principle of the separations of powers and the rule of law, thereby creating an environment that was far removed from the rule of law. There was no – or only an artificial – separation of powers, as all branches of state were controlled by one party with effectivel control over all institutions and private spheres. State authorities were far removed from the rule of law, as they were based instead on rule by law. Law and legal instruments were only been used as instruments to preserve power and justify the excesses of ruling regimes. They turned state in‐ stitutions into their private outlets, ready to protect their own private interests. Such practices have therefore undermined the functioning of the rule of law in Central and Eastern Europe long after the totalitarian regimes have fallen apart.32 Such systematic human rights violations have been condemned by constitutional courts. The Slovenian Constitutional Court, for instance, submitted that “the for‐ mer Yugoslav, and within its framework the Slovenian constitutional and state in‐ stitutional system, in contrast with this tradition of European legal civilisation, did not put forward human rights and did not pose clear legal restrictions to the state authority and its tyranny. Therefore, it opened up possibilities for arbitrary power, and its Constitution was not a fully legal document in the sense of a mo‐ dern European legal civilisation.”33 It also added that: An essential novelty of the current Slovenian Constitution in comparison to the last valid Constitution is the transition from the principle of unity of power to the prin‐ ciple of separation of power...These constitutional values do not originate only in his‐ torical experience of the international and in particular the European legal civilisation based on democracy and human rights, but also on the particular Slovenian democra‐ tic and historical experience and tradition of spiritual and public opposition to the former system of hegemony of the monopolistic political party. This is why the histo‐ rical mission of Slovenian Constitution has also been made to comprise the basic ob‐ jective of preventing any attempt of reestablishment of a totalitarian system; and its 31 Ibid., Section 3. 32 Noel Calhoun, Dilemmas of Justice in Eastern Europe’s Democratic Transitions, 2004; Lavinia Stan (ed.) Transitional Justice in Eastern Europe and the Former Soviet Union: Reckoning with the Communist Past, 2008; Monika Nalepa, Skeletons in the Closet: Transitional Justice in Post-Communist Europe, 2010. 33 Constitutional Court of the Republic of Slovenia, U-I-158/94, 9 March 1995, para. 13. Human Rights as a Motor of European Integration 96 most important direct objective remains to be the protection of fundamental human rights and freedoms of every person here and now.34 The former totalitarian and authoritarian regimes in Central and Eastern Europe have in a systematic and general manner undermined the fundamental values of human dignity, equality, freedom, solidarity and pluralism in order to realize their private ideological interests. They unified power in one political party and/or in a personality cult, thereby controlling almost every aspect of state insti‐ tutions and private life. The power exercised by state authorities has been neither limited nor supervised, thereby allowing for its unimaginable excesses.35 Such practices have undermined the essence of the rule of law and resulted in negative consequences that are still present in the institutional and private lives of the ma‐ jority of Central and Eastern European States.36 By the time of democratisation at the end of 1980 s and beginning of 1990 s, those states had therefore been completely stripped of the fundamental values of constitutional democracy and had to commence often painful processes of internalization in the daily lives of a newly freed societies. The European Court of Human Rights as a Motor of European Integration between Western and Eastern Europe In the wake of democratisation and the fall authoritarian and totalitarian regimes, Central and Eastern European States have gradually acceded to the European Convention and the Council of Europe, the only exceptions being Belarus and Kosovo, which are still not state parties of the European Convention.37 The Eu‐ ropean Convention has been thereafter employed as one of the instruments which have assisted those states in introducing normative human rights protections and the rule of law into their national systems. It has been utilized as one the plat‐ forms for constitutional normative reforms in the countries of Central and Eas‐ tern Europe. Most of their constitutions have derived their chapters from the con‐ IV. 34 Constitutional Court of the Republic of Slovenia, U-I-109/10, 26 September 2011, para. 14-16. 35 Lovro Šturm, Omejitev oblasti, Ljubljana, Nova revija, 1998, p.23. See also Separate opinion of Judge Lovro Šturm, No. U-I-121/97, 23 May 1997, Point 2. Matej Accetto, On Law and politics in the federal balance: lessons from Yugoslavia. Rev Central EastEur Law, 2007 32(2):191–231. 36 Giovanni Palombella, The rule of law and its core, in: Giovanni Palombella / Niel Walker (eds.), Re-locating the rule of law, 2009, p. 17–42. 37 See, for instance, Jernej Letnar Černič, The European Court of Human Rights in the Sta‐ tes of the Former Yugoslavia, East European Yearbook on Human Rights (1), 2018, pp. 32-54; Jernej Letnar Černič, Impact of the European Court of Human Rights on the Rule of Law in Central and Eastern Europe, in: Hague journal on the rule of law, 10 (2018), p. 111-137. Jernej Letnar Černič 97 tent of the European Convention. It has therefore served as a kind of motor of European integration between Western, Central and Eastern European States – at least in the sense of introducing normative standards. Individuals from Central and Eastern Europe have thereafter resorted to the European Court of Human Rights in their masses, perceiving it as a domestic, not an international court. However, it remains to be seen what the contribution of the European Conventi‐ on and the European Court to human rights protection has been in practice.38 Has the normative reform also been followed by a change in the mentality illustrated by the increased respect for human rights? Have these countries, after decades of the suppression of human rights and fundamental freedoms, turned the page and ensured the every-day respect of human rights in practice? Figure 1 illustrates the top ten states parties of the European Convention ran‐ ked on the number of judgements finding at least one violation. Most such judge‐ ments have been delivered against Central and Eastern European States. There are six Central and Eastern European states in this ranking, though one has to keep in mind that countries such Italy, France and Greece have been state parties of the European Convention for much longer. Figure 1: Top ten Member States of the Council of Europe ranked by the number judgements of the European Court finding at least one violation of the European Convention (1959-2017).39 State Number judgments finding at least one violation Turkey 2998 Russian Federation 2128 Italy 1819 Romania 1202 Ukraine 1188 Poland 958 Greece 864 France 728 Bulgaria 588 Hungary 448 38 See generally Hellen Keller / Alec Stone Sweet, Introduction: the reception of the ECHR in national legal orders, in: Hellen Keller / Alec Stone Sweet, (eds.) A Europe of rights: The impact of the ECHR on national legal systems, 2008, p. 3–28; Hellen Keller / Alec Stone Sweet, Assessing the impact of the ECHR on national legal systems, in: Hel‐ len Keller / Alec Stone Sweet (eds.), A Europe of rights: The impact of the ECHR on national legal systems, 2008, p. 677–712; Hellen Keller /Alec Stone Sweet, A Europe of rights – the impact of the ECHR on national legal systems, 2008. 39 European Court of Human Rights, Violations by Article and by State (1959-2017). Human Rights as a Motor of European Integration 98 The European Court has brought about positive changes in the constitutional frameworks of Central and Eastern European countries. It has introduced norma‐ tive standards concerning absolute rights, such as the right to life and the prohi‐ bition of torture,40 the right to liberty,41 and the right to fair trial,42 dealing with the past in transitional societies of Central and Eastern Europe43 and the freedom of expression necessary for a pluralistic society.44 Those and other judgments have introduced minimum standards which the states of Central and Eastern Eu‐ rope are required to respect. Those changes were mostly positive and the coun‐ 40 Šilih v Slovenia, no. 71463/01, 9 April 2009; Y v. Slovenia, no. 41107/10, 28 May 2015; L. M. v. Slovenia, no. 32863/05, 12 June 2014; Mučibabić v. Serbia, no. 34661/07, 12 July 2016; Mladenović v. Serbia, no. 1099/08, 22 May 2012; M and others v. Croatia, no. 50175/12, 2 May 2017; Biblija and Blažević v. Croatia, no. 62870/13, 6 June 2016; B and others v. Croatia, no. 71593/11, 19 October 2015; Starčević v. Croatia, no. 80909/12, 13 February 2015; Bljakaj and others v. Croatia, no. 74448/12, 16 February 2015; Jelić v. Croatia, no. 57856/11, 13 October 2014; Kudra v. Croatia, no. 13904/07, 18 March 2013; Bajić v. Croatia, no. 41108/10, 13 February 2013; Jularić v. Croatia, no. 20106/06, 20 April 2012; Skendžić and Krznarić v. Croatia, no. 16212/08, 20 April 2011; Branko To‐ mašič and others v. Croatia, no. 71463/01, 15 April 2009. 41 See, for example, Mandić and Jovič v. Slovenia, no. 5774/10 and 5985/10, 20 October 2011; Vitkovsky v Ukraine, No. 24938, 26 September 2013; Rezmives and others v Roma‐ nia, No(s). 61467/12, 39516/13, 48231/13, 68191/13, 25 April 2017, Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, 27 Ja‐ nuary 2015; and Varga and Others v. Hungary, nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, 10 March 2015. 42 Lukenda No II. v. Slovenia, no. 16492/02, 13 April 2006; Dimitrov and Hamanov v. Bulga‐ ria, nos. 48059/06 and 2708/09, 10 May 2011; Rutkowski and Others v. Poland, no. 72287/10, 7 July 2015; Parlov Taklčič v. Croatia, application no. 24810/06, judgment of 22 December 2009. 43 Kononov v Latvia, no. 36376/04, 24 July 2008; Kolk and Kislyiy v. Estonia, No. 24018/04, ECtHR (Dec.) (17 January 2006); Streletz, Kessler and Krenz v. Germany, Nos. 34044/96, 35532/97 and 44801/98, ECtHR (Grand Chamber) (22 March 2001); Ecaterina Mirea and others v Romania, no. 43626/13 and 69 other applications, 12 April 2016; Association‘21 December 1989’ and other v Romania, no. 33810/07 and 18817/08, 24 May 2011. Preda And Others v Romania, no. 9584/02, 29 April 2014, Broniowski v. Poland [GC], no. 31443/96, 22 June 2004 Fatullayev v Azerbaijan, no. 40984/07, 22 April 2010. AUzeyir Jafrov v Azerbaijan, no. 54204/08, 29 January 2015; Klein v. Slovakia, no. 72208/01, 31.10.2006. Ziembinski v. Poland (no. 2), no. 1799/07, 5 July 2016; Wizerkaniuk v Poland, no. 18990/05, 5 July 2011, para. 65, Kaperzynski v Poland, no. 43206/07, para. 74; Malo‐ ne and others v Moldova, no. 13936/02, 17 September 2009, para. 111. Partidul Comuni‐ stilor (Nepeceristi) and Ungureanu v. Romania, 3 February 2005, para. 44, United Com‐ munist Party and others v Turkey, (1998) 26 EHRR 1211, para. 45. Veniamin Tymoshenko and others v Ukraine, no. 48408/12, 2 October 2014. Promo Lex and others v Moldova, no. 42757/09, 24 February 2015; Navalnyy and Yashin v Russia, no. 76204/11, 4 Decem‐ ber 2014. Kasparov and others v Russia (no. 2), no. 51988/07, 13 December 2016. Naidin v Romania, No. 38162/07, 21 October 2014, para. 49. See also Turek v. Slovakia, No. 57986/00, 14 February 2006; Sidabras and Dziautas v. Lithuania, Nos 55480/00 and 59330/00, 27 July 2004. ECtHR, Rainys and Gasparavicius v. Lithuania, Nos 70665/01 and 74345/01, 7 April 2005. Kasparov and others v. Russia (no. 1), no. 21613/07, 3 Octo‐ ber 2013. Janowiec and others v Russia, no 55508/07 and 29520/09, 16 April 2012; Jano‐ wiec and others v Russia (Grand Chamber), (55508/07 in 29529/09), 21 October 2013. 44 Savva Terentyev v. Russia, no. 10692/09, 28 August 2018; Mladina v. Slovenia, no. 20981/10, judgment of 17 April 2014. Jernej Letnar Černič 99 tries were asked to introduce them into their constitutions and legislations. Whe‐ reas most countries introduce them, a substantial number of countries from Cen‐ tral and Eastern Europe has not fully executed the judgements of the Court. Countries are traditionally asked to pay out just compensation to the applicant and to adopt individual and general measures. Figure 2 illustrates that there are seven Central and Eastern European States among the ten top states with the highest non-executed judgements. Most of tho‐ se countries have shown institutional resistance towards reforming their constitu‐ tional and legislative frameworks. Figure 2 : Top ten Member States of the Council of Europe ranked by the number of non-executed judgements of the European Court.45 State Pending non-executed judgments Russian Federation 1689 Turkey 1466 Ukraine 1156 Romania 553 Italy 389 Greece 305 Moldova 271 Bulgaria 207 Hungary 205 Azerbaijan 197 However, despite those changes the applications from most of the countries of Central and Eastern European keep flowing, alleging several violations of the European Convention, which appears to suggest that the rule of law and human rights protection is still under stress at least in some Central and Eastern Euro‐ pean States. Figure 3, for instance, outlines Romania, the Russian Federation, Ukraine and Poland as the states with the most pending applications allocated to a judicial formation at the European Court. 45 Council of Europe, Committee of Ministers, Annual Report 2018, p. 64-66. Human Rights as a Motor of European Integration 100 Figure 3: Member States of the Council of Europe with the most pending cases before the European Court46 How can one explain such high numbers of applications from some Central and Eastern European States? One plausible explanation is that the influence of the European Court has only worked on the normative level and that reforms have not been fully implemented in daily practice, particularly in ensuring an independent, impartial and fair judiciary which would be able to secure human rights and the rule of law effectively in domestic constitutional systems. Individuals have therefore turned in large numbers to the European Court to remedy their human rights violations, as domestic courts have not been able or willing to guarantee the right to effective legal remedy. Ziemele in this way observes that, ‘in some Central and Eastern European countries even more fundamental issues, such as the independence of the judiciary and relevant guarantees, are still in need of serious work”.48 Old practices and old ways of doing business still appear to be present in the state institutions of some Central and Eastern European countries. Zobec and Černič submitted with regard to Slovenia that ‘its judiciary is characterised by a lack of mental and intellectual independence, lack of free, open, and courageous legal (as well as democratic) thought and internal autonomy of judges”.49 Perhaps the impact of the European Court has been therefore limited, as it has been 48 Ineta ZIEMELE, Conclusions, in: Iulia MOTOC / Ineta ZIEMELE (eds.), The Impact of the ECHR on Democratic Change in Central and Eastern Europe. Judicial Perspectives, 2016, p. 497. 49 Jan ZOBEC / Jernej LETNAR ČERNIČ, The remains of the authoritarian mentality within the Slovene judiciary, in: Michael Bobek (ed.), Central European judges under the European influence: the transformative power of the EU revisited, Vol. 2, 2015, p. 125-148. See also Bojan BUGARIČ, Administrative law developments in postcommunist Slovenia : between West European ideals and East European reality’, in: European public law, 22 (2016), p. 25-48. See also Violeta BEŠIREVIĆ, Governing without judiciary: the politics of the Constitutional Court of Serbia, in: Int JConst Law, 12 (2014), p. 954–979. Pending applications allocated to a judicial formation, 1 January 2018 Romania Remaining 37 states Russian Federation Turkey Ukraine Italy Hungary Azerbaijan Georgia Armenia Poland How can one explain such high numbers of applications from some Central and Eastern European States? One plausible explanation is that the influence of the European Court has only worked on the normative level and that reforms have not been fully implemented in daily practice, particularly in ensuring an indepen‐ dent, impartial and fair judiciary which would be able to secure human rights and the rule of law effectively in domestic constitutional systems. Individuals have therefore turned in large numbers to the European Court to remedy their human rights violations, as domestic courts have not been able or willing to guarantee the right to effective legal remedy. Ziemele in this way observes that, ‘in some Central and Eastern European countries even more fundamental issues, such as the independence of the judiciary and relevant guarantees, are still in need of se‐ rious work”.47 Old practices and old w ys of doing business still appear to be present in e state institutions of some Central and Eastern European countries. Zobec a d Černič submitt d with regard to Slovenia that ‘its judiciary is charac‐ terised by a lack of mental and intellectual independence, lack of free, open, and courageous legal (as well as democratic) thought and internal autonomy of jud‐ 46 European Court of Human Rights, Pending applications allocated to a judicial formation, 1 January 2018, https://www.echr.coe.int/Documents/Stats_pending_2018_BIL.pdf. 47 Ineta Ziemele, Conclusions, in: Iulia Motoc / Ineta Ziemele (eds.), The Impact of the ECHR on Democratic Change in Central and Eastern Europe. Judicial Perspectives, 2016, p. 497. Jernej Letnar Černič 101 ges”.48 Perhaps the impact of the European Court has been therefore limited, as it has been blocked by those old practices still being employed by the people and elites occupying public posts in the institutions of formally democratizes states. Nonetheless, the impact of the European Convention and European Court should not be underestimated, as it has brought about at least constitutional reforms following the example of mature constitutional democracies. In an earlier contribution I submitted that, “the Court’s impact in Central and Eastern Europe cannot be underestimated. It has contributed to forming of nor‐ mative orders based on the rule of law and protection of human rights […] On the other hand, its influence has been limited, since it has not been possible to convince the domestic elites to internalize the values of the Convention and to fully establish the rule of law de facto.”49 It is far less demanding to reform nor‐ mative structures than to change how people behave within a normative environ‐ ment, as this requires starting from below through educational processes. I have also further observed that, “the Court has contributed to the rule of law de iure frameworks, whereas such normative structures have not been translated into practice and translated in the rule of law de facto. Such a transition appears quite troubling, or even impossible, in the current practice of most Central and Eastern European countries”.50 However, not all has been so grim, as persons across Central and Eastern Europe attempt to internalize the values of constitutional de‐ mocracy and human rights. Grosecu, for example, reports that, “while no direct external pressures were exerted on Romania concerning the investigation of communist crimes, local justice entrepreneurs and judicial officials made sense of, and recast, the anti-impunity strategies and the legal reasoning of other coun‐ tries and of international and regional courts, and finally opened previously blo‐ cked avenues of justice.”51 The Romanian example shows that international frameworks have echoed positively in at least some parts of domestic human rights protections and the exercise of the rule of law. Further, constitutional courts have been particularly successful, not only in reforming normative safe‐ 48 Jan Zobec / Jernej Letnar Černič, The remains of the authoritarian mentality within the Slovene judiciary, in: Michael Bobek (ed.), Central European judges under the European influence: the transformative power of the EU revisited, Vol. 2, 2015, p. 125-148. See also Bojan Bugarič, Administrative law developments in post-communist Slovenia : between West European ideals and East European reality’, in: European public law, 22 (2016), p. 25-48. See also Violeta Beširević, Governing without judiciary: the politics of the Consti‐ tutional Court of Serbia, in: Int JConst Law, 12 (2014), p. 954–979. 49 Jernej Letnar Černič, Impact of the European Court of Human Rights on the Rule of Law in Central and Eastern Europe, in: Hague journal on the rule of law, 10 (2018), p. 111 (133). 50 Ibid. 51 Raluca Grosescu, Judging Communist Crimes in Romania: Transnational and Global In‐ fluences, in: International Journal of Transitional Justice, 11 (2017), p. 505 (524). Human Rights as a Motor of European Integration 102 guards, but also in attempting to be harbingers of societal change.52 Nonetheless, much depends on the mentality within the institutional frameworks of the rule of law state.53 The values of human rights often go against the status quo of institu‐ tional, political and economic elites, which have therefore resisted their full in‐ troduction in the daily activities of state institutions and public administration. In order to ensure that constitutional democracies guarantee full and effective hu‐ man rights protections and protect individuals against the arbitrary powers of sta‐ te and informal networks, it is necessary to adopt strong and independent super‐ visory mechanisms which could effectively detect and address the corrupt and kleptocratic practices often found in states institutions across Central and Eastern European countries. How to Proceed with the Reform? How to proceed with reforming this lack of full realization of effective human rights protection and the rule of law? In order to enable human rights to have the fullest effect in Central and Eastern Europe, state institutions and public adminis‐ trations in those countries have to agree to conduct full, mental, value-based re‐ form.54 This means that persons holding posts and those in public administrati‐ ons have to be fully committed and successful in eradicating old practices, postsocialist authoritarian formalistic mentality, corruption, clientelism and klepto‐ cracy from institutional practices.55 Further, the principle of separation of powers should not only be followed on paper, but should primarily be applied in prac‐ tice, if necessary through constitutional reform.56 All branches of government, from the legislative to the judicial to the executive, should avoid and limit the influence of actual or perceived conflict of interests on their decision-making. V. 52 Wojciech Sadurski, Rights before courts—a study of constitutional courts in postcommu‐ nist states of Central and Eastern Europe, 2nd edn., 2014; Wojciech Sadurski, Postcom‐ munist Constitutional Courts in Search of Political Legitimacy, European University Insti‐ tute Law Working Paper No. 2001/11. 53 Rafael Mańko, The Culture of Private Law in Central Europe After Enlargement: A Polish Perspective, in: European Law Journal, 11 (2005), p. 527-548; Rafael Mańko, Is the Socialist Legal Tradition “dead and buried“?: The Continuity of the Certain Elements of Socialist Legal Culture in Polish Civil Procedure, in: Wilhelmsson / Paunio / Pohjolainen (eds.), Private Law and the Many Cultures of Eu‐ rope, 2007, p. 83-103; Zdenek Kühn, The Judiciary in Central and Eastern Europe: Me‐ chanical Jurisprudence in Transformation?, 2011, p. 163. 54 Zdenek Kühn, Worlds apart: Western and Central European judicial culture at the onset of the European enlargement, in: American Journal Comp Law, 52 (2004), p. 531. 55 Alan Uzelac, Survival of the Third Legal Tradition, in: Supreme Court Law Review, 49 (2010), SCLR, p. 377. 56 Iulia Motoc / Ineta Ziemele (eds), The impact of the ECHR on democratic change in Cen‐ tral and Eastern Europe. Judicial perspectives, 2016. Jernej Letnar Černič 103 The judiciary should fight not only against political influence from outside, but also from inside the judiciary.57 However, in order to achieve such objectives strong states are to proceed with strong normative and constitutional reforms that would effectively enable the internal and external supervision of conduct within state institutions and public administration. Moreover, what is necessary is to effectively combat state capture and the de‐ ep state, including eliminating the influence of informal economic and political networks and even organised crime groups. Guaranteeing human dignity should be streamlined in the centre of all state institutions and public administration. Probably the most successful tool would be for persons in public positions and working elsewhere in public administration to lead by example, thereby provi‐ ding guidance to others working in state institutions. In this way, a sample of per‐ sons acting in a fair, transparent and honest way could step-by-step and eventual‐ ly create systematic and general practices across different branches of state insti‐ tutions and elsewhere in public administration. Such practice would, in turn, lead to the strengthening and maturing of state institutions and public administration, which would enjoy greater legitimacy and credibility among the general public. Strong institutions would also be decisive in creating a better economic and in‐ vestment environment, which would in turn result in faster economic and human development and a better standard of living.58 Conclusion This chapter has attempted to describe and analyse how human rights can be em‐ ployed as a tool of European integration, spreading the liberal values of human rights and fundamental freedoms across different parts of Europe and bringing together the countries of Nordic, Western, Central and Eastern Europe. It has il‐ lustrated that normative human rights protections have been well translated into the domestic constitutional systems of Central and Eastern Europe, whilst much room for improvement exists in their application in practice. The human rights norms that have been translated into previously arbitrary environments have be‐ en met with resistance by the existing values and prevailing mentality among the VI. 57 Jernej Kosec, How Communist is the Judiciary in Slovenia, Centre for Research into Post- Communist Economies (CRCE), Briefing Paper, 2018; Samuel Spac, Judiciary develop‐ ment after the Breakdown of Communism in the Czech Republic and Slovakia, 2013; Zoltán Fleck, Judicial Independence in Its Environment in Hungary, in: Přibáň / Roberts / Young (eds.), Systems of Justice in Transition. Central European Experiences since 1989, 2003. 58 See, for example Acemoglu / Johnson / Robinson, Institutions as the Fundamental Cause of Long-Run Growth«, NBER Working Paper No. 10481, 2004. Human Rights as a Motor of European Integration 104 institutional elites in the institutional and private lives of Central and Eastern Eu‐ rope. These have been accustomed to go about their business by employing nontransparent and corrupt practices of business as the norm. For those reasons their institutions have been described as weak. This has in a way blocked the introduc‐ tion of liberal human rights practices in the domestic fora. By contrast, ordinary people have taken the European Court and the European Convention as their do‐ mestic courts, as can be seen from the very high number of applications stem‐ ming from most Central and Eastern European States, and consequently also in the high number of judgements. Despite external pressures, institutional elites have nonetheless aimed to preserve their privileges and have only slowly started to take up the values of human rights and to reform the persisting mentality among institutional elites. The effectiveness of human rights as a tool of Euro‐ pean Integration, therefore, depends greatly on the ability and willingness of in‐ stitutional elites to reform the rule of law in practice. Human rights protections and the rule of law in Central and Eastern Europe can only be reformed through a reform of the established practices overwhelmin‐ gly present in the institutions and private spheres of Central and Eastern Euro‐ pean States. Such reform depends on honest individuals with integrity capable of changing the mentality within institutions, however it will take time that the rule of law and human rights protections will also be implemented in practice. The rule of law should be able to prevent effectively the power of institutional, politi‐ cal and economic elites to abuse constitutional and international human rights protections. By all accounts, human rights are to serve not only as a motor of Eu‐ ropean Integration, but as an engine of societal change in the transitional and post-transitional environments of Central and Eastern Europe. All in all, the suc‐ cess of human rights as both a motor of European integration and constitutional and societal reforms will depend on the people within state institutions and the private sphere. Jernej Letnar Černič 105

Chapter Preview

References

Abstract

The EU’s vulnerability to crises is not a novelty, but disintegrative trends have reached a new quality. The financial and fiscal crisis shook the Union, which had just been consolidated by the Lisbon Treaty, to its foundations. The refugee crisis becomes a heavy test of European solidarity. For the first time, a member state, the United Kingdom, wants to leave the Union and in doing so, as at least the Brexiteers argue, regain its sovereignty. Even the member states themselves are not spared from moments of disintegration. One might think of the secessionist movements in Catalonia or Scotland etc. Against this background, the SIPE Congress in Hamburg has brought together high-ranking experts from all over Europe in order to explore the tension between integration and disintegration, as well as Europe’s prospects of being “united in diversity”. The discussions paint a differentiated overall panorama of the constantly challenged integration project. With contributions by Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck

Zusammenfassung

Die Krisenanfälligkeit der EU ist kein Novum, doch haben desintegrative Strömungen eine neue Qualität erreicht. Die Finanz- und Fiskalkrise erschütterte die eben erst durch den Lissabonner Vertrag konsolidierte Union in ihren Grundfesten. Die Flüchtlingskrise wird zur schweren Belastungsprobe für die europäische Solidarität. Mit dem Vereinigten Königreich will erstmals ein Mitgliedstaat den Integrationsverbund verlassen und, so die Brexit-Advokaten, seine Souveränität zurückgewinnen. Auch die Mitgliedstaaten selbst bleiben von Desintegrationsmomenten nicht verschont, man denke etwa an die Sezessionsbestrebungen in Katalonien oder Schottland. Vor diesem Hintergrund hat die Hamburger Jahrestagung der SIPE hochrangige Expertinnen und Experten aus ganz Europa versammelt, um im Spannungsfeld von Integration und Desintegration auszuloten, welche Zukunftschancen Europas „Einheit in Vielfalt“ hat. Die Diskussionen zeichnen ein differenziertes Gesamtpanorama des immer neu herausgeforderten Integrationsprojekts. Mit Beiträgen von Francisco Balaguer Callejón, Roland Bieber, Jernej Letnar Černič, Jenö Czuczai, Daria de Pretis, Ian Forrester, Ece Göztepe, Ana Maria Guerra Martins, Christian Heitsch, Stefan Herms, Ann-Kathrin Kaufhold, Panos Kazakos, Markus Kotzur, Clifford Larsen, Friedrich-Joachim Mehmel, Eleftheria Neframi, Dimitrios Parashu, Argelia Queralt Jiménez, Andrea Romano, Tilman Repgen, Sebastian Scholz, Christian Starck