Reinforcing the New Democracies: The European Convention on Human Rights and the Former Communist Countries - A Study of the Case Law¹

Aeyal M. Gross²

Full text available: PDF format ^*

I. Introduction

This article is based on a survey of decisions by the European Commission of Human Rights regarding applications from former Communist countries which ratified the Convention for the Protection of Human Rights and Fundamental Freedoms (known as the European Convention on Human Rights, hereinafter `the Convention') following the dramatic events in Europe in the fall of 1989.

To date, eight new countries from Central and Eastern Europe have ratified the Convention: Bulgaria, the Czech Republic, Hungary, Lithuania, Poland, Romania, the Slovak Republic and Slovenia. The Czech and Slovak Federal Republic (CSFR) had ratified the Convention before it split into two States. The jurisdiction of the Convention was also extended to the former East Germany, as a result of its unification with the former West Germany.³

This article is a result of a study of all the European Commission of Human Rights' decisions in applications from the new Member States.⁴ However, it does not include a discussion of cases summarily decided by the Commission, when all the decision concluded was that no violation of the Convention had been found. For these reasons, the article cannot be seen as an overview of all the complaints that have been brought before the Commission.⁵ It is also clear that this article is not a report on the human rights situation in the former Communist countries. Nevertheless, as the article will show, some patterns of the ways in which applicants from the former Communist countries try to use the Convention can be identified. One of the article's contributions is indeed in trying to understand the hopes which the citizens (and lawyers) of the new democracies have of the Strasbourg organs. In addition, the study of the case law raises some more general questions about the role the Convention may play in the transition to democracy.⁶

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1 Special thanks to Wolfgang Strasser from the Secretariat of the European Commission of Human Rights for his hospitality and help. Thanks to Peter Neussl, Oonagh Reitman and Susan Marks for their comments, and to the Centre for European Studies at Harvard University for a grant that made the research for this article possible.

2 LL.B. 1990, Tel-Aviv University; S.J.D. candidate, Harvard Law School.

3 Estonia, Macedonia and the Ukraine signed the Convention but have not yet ratified it. See Drzemczewski, `The Council of Europe's Co-operation and Assistance Programmes with Central and Eastern European Countries in the Human Rights Field: 1990 to September 1993', 14 HRLJ (1993) 229, 230.

4 No case from the former Communist countries has so far been referred to the European Court of Human Rights.

5 Such an overview would have to include provisional files that were eventually not registered. The information about these files is not public.

6 This article includes Commission's decisions which were given until the beginning of May 1995. In addition it was updated to include significant decisions given until the end of 1995.

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