Strangers among us. Non-governmental organisations in Russia. OSW COMMENTARY 2015-09-29

The situation of the third sector in Russia, i.e. the civil society structures independent from the state, is worsening on a regular basis. The Kremlin’s actions aimed at paralysing and destroying the independent non-governmental sector seen over the past four years have been presented as part of a struggle for the country’s sovereignty. This is above all a consequence of the Russian government’s efforts to take full control of the socio-political situation in the country while it also needs to deal with the geopolitical confrontation with the West and the worsening economic crisis. The policy aimed against non-governmental organisations is depriving the public of structures for self-organisation, protection of civil rights and the means of controlling the ever more authoritarian government. At the same time, the Kremlin has been depriving itself of channels of co-operation and communication with the public and antagonising the most active citizens. The restrictive measures the Kremlin has taken over the past few years with regard to NGOs prove that Russian decision-makers believe that any social initiative independent of the government may give rise to unrest, which is dangerous for the regime, and – given the economic slump – any unrest brings unnecessary political risk.

The Court of Justice of the European Union as a fundamental rights tribunal: challenges for the effective delivery of fundamental rights in the area of freedom, security and justice. CEPS Paper in Liberty and Security in Europe No. 49, 29 August 2012

This paper reflects on the challenges facing the effective implementation of the new EU fundamental rights architecture that emerged from the Lisbon Treaty. Particular attention is paid to the role of the Court of Justice of the European Union (CJEU) and its ability to function as a ‘fundamental rights tribunal’. The paper first analyses the praxis of the European Court of Human Rights in Strasbourg and its long-standing experience in overseeing the practical implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Against this analysis, it then examines the readiness of the CJEU to live up to its consolidated and strengthened mandate on fundamental rights as one of the prime guarantors of the effective implementation of the EU Charter of Fundamental Rights. We specifically review the role of ‘third-party interventions’ by non-governmental organisations, international and regional human rights actors as well as ‘interim relief measures’ when ensuring effective judicial protection of vulnerable individuals in cases of alleged violations of fundamental human rights. To flesh out our arguments, we rely on examples within the scope of the relatively new and complex domain of EU legislation, the Area of Freedom, Security and Justice (AFSJ), and its immigration, external border and asylum policies. In view of the fundamental rights-sensitive nature of these domains, which often encounter shifts of accountability and responsibility in their practical application, and the Lisbon Treaty’s expansion of the jurisdiction of the CJEU to interpret and review EU AFSJ legislation, this area can be seen as an excellent test case for the analyses at hand. The final section puts forth a set of policy suggestions that can assist the CJEU in the process of adjusting itself to the new fundamental rights context in a post-Lisbon Treaty setting.

The future of human rights protection in the new Libya: prospects and challenges. Jean Monnet Occasional Paper No. 6/2014

There is no doubt that demand for the respect of human rights was one of the factors behind the Arab Spring and Libya is no exception. Four decades of absolute dictatorship headed by Muammar Gaddafi had been further tainted with gross violations of human rights of Libyan citizens and restrictions on their basic freedoms. Before the revolution, Libya was a country where no political parties were allowed. Freedom of expression and the press were extremely restricted. Reports about the country’s human rights violations published by a number of international organizations documented large scale human rights abuses at the hands of the Gaddafi regime. The 17 February 2011 revolution in Libya led to a turning point in the country’s history. The regime of Muammar Gaddafi which had dominated the country since 1969 eventually collapsed, leading to the beginning of the painful task of reconciliation and state building. Nonetheless it is estimated that more than 7000 prisoners are held captive by various militias and armed groups without due process. This in addition to thousands of internally displaced persons. State building involves the consolidation of a democratic state based on a democratic constitution. In 2011, a constitutional declaration was adopted to replace the one that had been in effect since 1969. This was intended as a stop-gap solution to allow the new political forces unleashed in the country time to write a new democratic constitution. To help consolidate the democratic state, three elements are required: that human rights be placed at its core; that these rights are truly implemented and applied; and lastly that the independence of the judiciary is safeguarded. For all this to happen it is also essential to strengthen education on human rights by encouraging non-governmental organizations to take a stronger role in promoting human rights. Libyan citizens can only avail themselves of these rights and strengthen their implementation if they know what they are and how they can benefit from their implementation

Bringing South Caucasus Closer to Europe: Achievements and Challenges in ENP Implantation. Natolin Research Paper 03/March 2011

While the initial Commission Communication on Wider Europe (March 2003) did not include Armenia, Georgia and Azerbaijan in the forthcoming policy for the EU’s new neighbourhood, the Southern Caucasus region has now gained considerable attention in the framework of the ENP and beyond, not least because of security considerations. The ENP undoubtedly represents a step forward in the EU’s policy towards Armenia, Azerbaijan and Georgia, yet its implementation highlights major differences between the three countries and important weaknesses in all three of them. The Eastern Partnership addresses some of these weaknesses and it also significantly strengthens the EU’s offer to South Caucasus countries, which is now fully in line with the perspectives proposed to the Western NIS. The paper highlights five main conclusions and recommendations: • Political, economic, social and diplomatic developments in the South Caucasus in the 2000's highlight both diverging trends and the persistence of tensions between the three countries. They also have different aspirations vis-à-vis the EU and different records in ENP implementation. The EU should therefore mainly rely upon an individual approach towards each country. • While bilateral relations should form the basis of the EU's approach, most of the challenges faced by Georgia, Armenia and Azerbaijan are not confined to national borders and require regional solutions. This applies primarily, but not exclusively, to the unresolved conflicts. The EU should promote targeted regional cooperation including, inter alia, confidence-building measures to address indirectly the protracted conflicts and measures supporting drivers of change, which play a critical role in the confidence-building process; • Under the ENP, especially since the opening of negotiations for association agreements and with the perspective of DCFTA, trade-related issues, market and regulatory reform have become prominent in the EU's relations with all three Caucasus countries. At the same time, the priorities identified when the ENP was launched, i.e. good governance and the rule of law, still correspond to major challenges in the South Caucasus. The EU should more clearly prioritise good governance and the rule of law as the basis of both the ENP and successful reforms; • In all partner countries (but even more so in the South Caucasus), ENP implementation has been adversely affected by poor administrative capacities and weak institutional coordination. The EU should increasingly focus on institutional reform/capacity building in its support to partner countries and ensure that the link between the ENP and domestic reform processes is strengthened; • In the South Caucasus the EU has recently concentrated on a few assistance tools such as budget support, Twinning and TAIEX. While these instruments undoubtedly bring an added value, they should be better combined with tools allowing for greater flexibility and targeting non-governmental actors, e.g. EIDHR/NSA.

The ICC Debate and the EU-U.S. Struggle for Influence: The Case of the Balkan-6. ACES Working Paper No. 11, October 2007

The objectives of the European Union (EU) and the United States (US) for the countries of the Balkan region are generally assumed to be complementary. They both stress and condition their support and assistance on the progress that these countries make with regards to economic modernization, build-up of social institutions, and respect for international law. However, this rhetoric doesn't always match the facts on the ground. Often, instead of dealing with a cohesive set of policy recommendations, the countries in the region are faced with contradictory alternatives and zero-sum choices. The debate over the development of the International Criminal Court (ICC) was such a case. It centered on whether the countries in the region should exempt US personnel from the jurisdiction of the Court while in the country and thus rendering them immune from prosecution for any crimes committed for which the US courts were not willing or able to take any action. The final outcome was mixed. Three of the countries - Croatia, Serbia (and Montenegro), and Slovenia - decided not to give in to US pressure, while the remaining three - Albania, Bosnia and Herzegovina, and Macedonia - ignored the pleas and threats of the EU and of the various international non-governmental organizations and decided to sign Bilateral Immunity Agreements (BIAs) with the US. How can one explain such divergent outcomes? I argue that the credibility of actors involved played an important role in determining whether threats coming from the US or the EU were more credible, thus tipping the scales in favor of signing BIAs with the US. However, the issue of threat credibility serves only to narrow down the choices of actors. Further determination of the outcome necessitates a look at the nature of the security context in which these countries exist and operate.

The Future Organisation of the European Courts. Research Papers in Law, 2/2005

From the Introduction. According to Article 220 of the EC Treaty, the Court of Justice and the Court of First Instance (hereinafter CFI) “each within its jurisdiction, shall ensure that in the interpretation and application of [the EC] Treaty the law is observed”. The “pre-Nice” allocation of jurisdiction between the two Community courts can be summarized as follows. At Court of Justice level, mention should first of all be made of references for a preliminary ruling. A national court, in a case pending before it, can - or in some circumstances must - refer to the Court of Justice a question relating to the interpretation of provisions of the EC Treaty or of secondary Community law, or relating to the validity of provisions of secondary Community law.1 Moreover, the Court of Justice ensures the observance of the law in the context of actions for annulment or failure to act brought before it by the Community institutions, the European Central Bank (hereinafter ECB) and the Member States.2 These actions concern, respectively, the legality of an act of secondary Community law and the legality of the failure of the institution concerned to adopt such act. The Court of Justice also has jurisdiction in actions brought by the Commission or by a Member State relating to the infringement of Community law by a Member State (hereinafter infringement actions)3 and in actions relating to compensation for non-contractual damage brought by Member States against the Community.4 Finally, as regards the jurisdiction of the Court of Justice, mention should be made of appeals which can be lodged on points of law only against rulings of the CFI.5

Judicial Selection, Lay Participation, and Judicial Culture in the Czech Republic: A Study in a Central European (Non)Transformation. College of Europe Research Paper in Law 03/2014

Introduction. The idea that “merit” should be the guiding principle of judicial selections is a universal principle, unlikely to be contested in whatever legal system. What differs considerably across legal cultures, however, is the way in which “merit” is defined. For deeper cultural and historical reasons, the current definition of “merit” in the process of judicial selections in the Czech Republic, at least in the way it is implemented in the institutional settings, is an odd mongrel. The old technocratic Austrian judicial heritage has in some aspects merged with, in others was altered or destroyed, by the Communist past. After 1989, some aspects of the judicial organisation were amended, with the most problematic elements removed. Furthermore, several old as well as new provisions relating to the judiciary were struck down by the Constitutional Court. However, apart from these rather haphazard interventions, there has been neither a sustained discussion as to how a new judicial architecture and system of judicial appointments ought to look like nor much of broader, conceptual reform in this regard. Thus, some twenty five years after the Velvet Revolution of 1989, the guiding principles for judicial selection and appointments are still a debate to be had.