Europe

Georgian State Failed to Properly Protect LGBT Demonstrators

By: George Rose

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On May 17, 2013, members of the LGBT community in Georgia planned and obtained permits to hold a vigil on the steps of parliament on International Day Against Homophobia. Many former Soviet countries still have laws outlawing homosexuality, with Georgia legalizing same sex marriage in 2015. While the LGBT community was planning their vigil, members of the Orthodox Church began planning a counter demonstration, citing this as a spread of “homosexual propaganda”.

The demonstration when violence broke out.
Photo curtesy of the New York Times.

While a peaceful counterdemonstration may not have been a problem, peace was not the outcome at the demonstration. Once the members of the Orthodox Church’s counterdemonstration arrived, they quickly overrode the police barriers erected around the parliament building. The Orthodox protesters became violent, videos show priests brandishing various weapons, going as far as using stools from bars and shops, shouting “kill them”. One LGBT demonstrator remarked that she had been assaulted by members of the Orthodox Church, she recalled seeing blood on the ground and was unsure if it was hers or not. After the violence broke out, the police loaded the LGBT demonstrators onto a minibus, however, the members from the Orthodox church smashed through the windows to attack those on board. In the aftermath of the attack, eight members of the LGBT demonstration were hospitalized, as well as three police officers. Following the attack on the LGBT demonstrators, Georgia’s Prime Minister, Bidzina Ivanishvili vowed that those who promoted the violence would be punished. However, the LGBT rights groups are still waiting for proof that the government has held those who promoted violence, accountable.

In a case brought against Georgia in the European Court of Human Rights, the court ruled that Georgia had been complacent by failing to properly protect the LGBT groups. The court reasoned that the use of police officers who were unarmed, thus protecting the demonstrators with a thin line of police officers, was not adequate protection. Further, the court found that in video footage, several officers allowed the violent members of the Orthodox Church within reaching distance of the LGBT demonstrators.

The court ordered Georgia to pay €193,500 to the applicants, with €10,000 reserved to an applicant who had suffered a concussion, and €6,000 for an applicant who had been humiliated by police officers.

For further information, please see:

The European Court of Human Rights – Press Release: Unprecedented Violence against LGBT Demonstrators

The New Yorker – What Was Behind Georgia’s Anti-Gay Rally? – 23 May 2013

The New York Times – Crowd Led by Priests Attacks Gay Rights Marchers in Georgia – 17 May 2013

NPR – Anti-Gay Riot in Tblisi Tests Balance Between Church, State – 30 Jul. 2013

ECHR Demands Protection for Victims of Domestic Violence in Russia

By: Jorge Estacio

Journal of Global Rights and Organizations, Associate Articles Editor

RUSSIA — The European Court of Human Rights (ECHR) has recognized that Russian authorities continue to systemically fail to protect victims of domestic violence.

Protestors hold banners against domestic violence in Russia. Photo courtesy of euronews.com.

On September 14, 2021, the ECHR rendered a verdict in favor of Valeriya Igorevna Volodina, holding that authorities violated the European Convention on Human Rights. Specifically her right to respect for private life. After separating from her partner, “S.”, Ms. Volodina became a target for cyber violence. Her former partner created faked social media accounts using her name, planted a GPS tracking device within her bag, and sent death threats to her actual social media account. Additionally, S. used the fake social media account to display nude pictures of Ms. Volodina without her consent. The court stated that Russian law failed to provide protection for victims of domestic violence. The authorities had the legal tools to investigate the ongoing cyberviolence but failed to take measures of deterrence. They took two years to open a criminal case for the matter. Which resulted in the perpetrator escaping justice due to a time limit contingency within criminal proceedings. For security reasons Ms. Volodina changed her name to an undisclosed identity as of 2018.

The ECHR is threatening to continue handling Russian domestic violence cases in a simplified and accelerated form if the government does not adopt proper measures. The court refers to Ms. Volodina’s case as an example of the systematic problems that continue to prevent prosecution and convictions for domestic violence.

Displaying their willingness to expedite justice for Russian victims of domestic violence, the ECHR joined the judgment of four cases with similar subject matter. It resulted in Russia paying monetary compensation for each victim. The case noted authorities failed to properly assess the victims’ claims, were not properly trained to do so, and failed to take any action towards the known risk. Additionally, the international court condemned the government for having a legal framework that set a high threshold for injuries to be prosecutable and criminal proceedings that rushed through domestic violence inquiries. One of the victims lost her case in Kuzminskiy District Court because she arrived “sixteen minutes late” for the hearing. On December 14, 2021, in its decision the ECHR noted Russia violated several Articles of the European Convention on Human Rights culminating in discrimination against women.

Although insufficient to fully compensate for gross disregard of Human Rights, the ECHR efforts are certainly making it clear that the Russian government cannot continue to disregard the lack of human protection.  

For further information, please see:

The European Court of Human Rights – Press Release: Violations in authorities’ failure to respond to domestic violence cases; urgent legal changes required – Dec. 14, 2021

Jurist| Legal News & Commentary – Europe human rights court rules Russia must do more to combat domestic violence – Dec. 16, 2021

The European Court of Human Rights – Press Release: Russian authorities failed to protect domestic abuse victim from her partner’s cyberviolence – Sept. 14, 2021

Institute of Modern Russia – Sergei Davidis: “The human rights violations in Russia is fraught with instability in the West” – Jan. 12, 2022

The Polish Power Struggle: Poland’s “Unprecedented” Pushback on EU Primacy and Rule of Law

By: Gabriella Kielbasinski

Journal of Global Rights and Organizations, Senior Articles Editor

WARSAW, Poland — The current reality: Poland and the European Union (EU) find themselves in a critical tug-of-war with dire implications for the future of rule of law and the primacy of EU law. Before addressing Poland’s latest pushback against EU primacy and rule of law, let’s look back at how the Polish judicial system has changed in order to accommodate such challenges to the most foundational tenants of EU law.

Thousands of Polish protestors group together in opposition of the changes to the Polish judicial system concerned about the threat to judicial independence and the future of rule of law. Photo Courtesy of BBC.

Since 2015, the Eurosceptic, right-wing Law and Justice Party (PiS) has increasingly taken control of Polish judicial bodies, including the Constitutional Tribunal, Supreme Court, and Prosecutor General’s Office. Organizations such as Human Rights Watch have noted that, under PiS’s influence, these courts “composition, independence, and functioning have been severely compromised.”

As PiS continued to infiltrate the should-be neutral judicial system, judges were replaced with PiS political allies. This raised many concerns about the overall integrity of Poland’s courts as they became increasingly politicized bodies. To reign in the remaining independent judges, PiS created a disciplinary process to sanction, and in some cases even remove, those who rule contrary to the party’s interests. This disciplinary regime continues to exacerbate the deterioration of judicial impartiality across the country.

Notably, the Court of Justice of the European Union (CJEU) weighed in on the aforementioned disciplinary system, holding that Poland’s disciplinary regime against judges is not compatible with EU law and should be immediately suspended. However, Poland has failed to comply with the order to disband it.

Looking now to 2021, on October 7th, the Constitutional Tribunal ruled that two core articles of the Treaty on European Union, Article 1 and Article 19, were “incompatible” with the Polish constitution asserting the “primacy of the Polish Constitution over EU Law.” This is a sharp deviation from the founding principles upon which the EU’s legal framework rests. Historically, primacy of European Union law was the precedent. In other words, where a conflict lies between EU law and national law, EU law should still prevail.

Observers have noted that this decision may create a dangerous precedent in which Poland can pick and choose which parts of EU law it will abide by. For independent judges struggling in Poland’s current judicial climate, this ruling inhibits their ability to rely on CJEU rulings or EU law in order to defend their decisions against PiS’s pressures. In other words, the October 7th decision has the power to wholly destabilize the already shaky legal framework of rule of law within Poland’s borders.

Moreover, human rights watchdogs have blown the whistle that this ruling not only curtails democratic interests in Poland, but also has the potential to hinder rule of law across the EU. Some world leaders worry that other EU states may follow suit after Poland, carefully selecting when EU law is binding based on the respective state’s self-interests. Sensing this potential for disaster, the European Commission was quick to respond calling out the serious concerns raised by the Polish Constitutional Tribunal and reaffirming that “EU law has primacy over national law, including constitutional provisions.”

Given the gravity of the harm at stake – the breakdown of the rule of law within the EU, it is unsurprising that other Europeans bodies also responded to the October 7th decision with decisive action: The European Parliament openly condemned the ruling; The EU has withheld €36 billion of stimulus funds for Poland; And, the European Court of Justice (ECJ) has imposed a daily fine of €1 million for Poland’s noncompliance with EU rules and orders, the highest daily penalty ever imposed on an EU state. One thing is clear, as economic consequences continue to pile up for Poland, tensions across the parties involved have only grown. 

Most recently, it has been the European Court of Human Rights (ECHR) pushing back against the actions of Poland’s courts. On November 8th, the ECHR ruled on a case in which two Polish judges were rejected for positions by Poland’s Chamber of Extraordinary Review and Public Affairs. The ECHR ruled that the judicial applicants had been denied a fair hearing because the Polish body which heard their case “isn’t an ‘independent and impartial tribunal established by law.” Rather, it is a politicized body composed of members who are mostly politicians, not judges. The ECHR called Poland’s current running of the courts a “blatant defiance of the rule of law.”

Notably, the ECHR’s decisions are legally binding, not merely advisory, upon the members of the Council of Europe (which Poland is a member of).

In response, on November 24th, the Constitutional Tribunal said that the ECHR has no power to question its appointment of judges, thus rejecting the ECHR’s November 8th rulings. In a move mirroring the Tribunal’s previous October 7th holding, the rationale rested upon a finding that European law was “incompatible” with the Polish Constitution. Specifically, the Tribunal found that Article 6 of the European Convention on Human Rights was “incompatible… in as far as it gave the [ECHR] the right to assess the legality of the appointment of the Tribunal’s judges.”

While proponents of Poland’s controversial judiciary exalted the decision as a win for Polish sovereignty, others expressed concern calling the decision an “unprecedented challenge against a ruling from the European Court of Human Rights.” Any hope that Poland’s October 7th ruling was a unique departure from previously held legal principles seems effectively crushed by this latest decision. Some opposition lawmakers have gone as far as to label the November 24th ruling as an attempt to “[push Poland] out of the group of democratic countries.”

In the coming days, the European community’s response to Poland’s bold challenge to an ECHR ruling has the potential to shape the EU’s legal landscape for years to come.

For further information, please see:

Balkan Investigative Reporting Network – BIRN Fact-Check: What the Polish Constitutional Tribunal Ruling Means in Practice – 18 Oct. 2021

BBC – Poland’s Top Court Ruling Marks Major Challenge to EU Laws – 7 Oct. 2021

Bloomberg – Poland Ordered by Top Human Rights Court to Fix Judicial System – 8 Nov. 2021

Deutsche Welle – Poland Court Says European Rights Pact ‘Incompatible’ with Constitution – 25 Nov. 2021

Euractiv – Poland Makes ‘Unprecedented’ Challenge to European Rights Pact – 25 Nov. 2021

European Commission – European Commission Reaffirms the Primacy of EU Law – 7 Oct. 2021

European Commission – Independence of Polish Judges: Commission asks European Court of Justice for Financial Penalties against Poland on the Activity of the Disciplinary Chamber – 7 Sept. 2021

Human Rights Watch – Poland’s Compromised Court Threatens Rule of Law in Europe – 13 Oct. 2021

Politico – Poland Hit with Record €1M Daily Fine in EU Rule-of-Law Dispute – 27 Oct. 2021

Reuters – Polish Tribunal Rules European Rights Court Cannot Question Its Judges – 24 Nov. 2021.

ECHR Awards Damages Based on Religious Discrimination Claim against Georgia

By: Tina Perez

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — The European Court of Human Rights (ECHR) found that Georgia discriminated against, mistreated, and used excessive force against four Muslim men who were arrested for protesting a decision of Adigeni Municipality (the local government) to renovate a former mosque in the Village of Mokhe into a library. In Mikeladze v. Georgia, police alleged that the four men were resisting arrest at a protest on October 22, 2014 and sustained injuries while resisting. The four men complained that police verbally and physically assaulted them during and following their arrests. The men claimed, with several witnesses also reporting, that the authorities acted with discrimination because the officials used degrading racial slurs. ECHR awarded damages of 3,900 euros to the man who was the most severely injured and 1,800 euros to each remaining man.

Muslims gather in prayer outside the Disputed Building, Mokhe. Photo courtesy of Dato Parulava and Liberali.

The ECHR’s findings in this matter include that the injuries reported were not consistent with resisting arrest because one of the protestors was injured but no police were injured. Additionally, the report of the man’s injuries was not an adequate investigation because it did not investigate the origin of his injuries.

ECHR also found that the four men did not need to pursue all available remedies within Georgia if those remedies were ineffective. The men made official complaints related to physical and verbal abuse they received but Georgia conducted no official investigation. Georgia instead claimed that the criminal investigation against the men was sufficient to uncover and address their mistreatment. This matter was brought to ECHR and ECHR found that the state criminal investigation was not sufficient because it was not independently conducted. ECHR further noted that the criminal investigation of the men failed to make any inquiry into the racial slurs used against them. Additionally, in the seven years since the incident the internal investigation had made no conclusive findings.

This matter grabbed the attention of human rights organizations because Muslims are a religious minority within Georgia.  Although the majority of the population of the Village of Mokhe is Muslim, the local officials are not and discrimination against Muslims in the region goes back decades.  The disputed building was constructed as a mosque between 1927-34 but in the 1940s, Joseph Stalin expelled Muslims from the region. From the 1940’s until 2007 when Adigeni Municipality took ownership of the building, it was used first as a warehouse and later as a village club.  However, the Orthodox Church of Georgia also asserted ownership over the building claiming that a church stood on the location during the sixteenth century. Following the protest, the Muslim community of Mokhe continued to pray inside the ruins of the building until October 2016 when the building was blocked off with yellow police tape. An official commission was created to determine the origins of the ruin and in May 2017, the commission determined that the building “couldn’t be attributed to either” religion. The ruins have been declared a cultural heritage site named “Disputed Building.”

For further information, please see:  

Agenda.ge – European Court finds Georgia guilty of discrimination against four Georgian Muslims – 17 Nov. 2021

European Court of Human Rights – Forthcoming Judgments and Decisions – 10 Nov. 2021

European Court of Human Rights- Judgment, Case of Mikeladze and Others v. Georgia – 16 Nov. 2021

OC Media – Mokhe’s ‘Disputed Building’ to be Sealed off for Conservation – 14 Sept. 2017

Tolerance and Diversity Institute – Analysis of Recent Occurrences in Mokhe Village – 3 Nov. 2014

The European Court of Human Rights Vindicates Dismissed Bulgarian Judge on Grounds of Freedom of Expression

By: Angelica Judge

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France – The European Court of Human Rights ruled in favor of Miroslava Todorova, a Bulgarian judge, on October 19, 2021 regarding a violation of her freedom of expression.

Photograph of Judge Miroslava Todorova. Photo Courtesy of noinvite.com.

Todorova is a judge in the criminal division of Sofia City Court in Bulgaria, and was elected president of the Bulgarian union of Judges (BUJ) in 2009.  During that time, she was publically critical of certain leadership decisions and statements within the Supreme Judicial Council (SJC).

A proposal was brought to the SJC Inspector General in July of 2011 for disciplinary proceedings to be instated against judges with a backlog of cases – with Todorova being named as one such judge. She suffered a salary reduction followed later by dismissal, and after a series of appeals, her case came before the ECtHR.

She alleged several claims under the European Convention on Human Rights, and the court found that her Article 10 right to freedom of expression had been violated. The court argued that “Those proceedings and sanctions could… have had a chilling effect on the applicant’s exercise of her freedom of expression and on that of all members of the national judiciary,” as a result of her previous comments criticizing the SJC. In coming to this decision, the court weighed what they felt to be an inadequate showing by the domestic authorities that the sanctions here were “necessary and appropriate to the legitimate aims pursued in the case.”  

The ECtHR recognized that judges still must be subject to appropriate sanctions following breaches of professional duty due to exercising their right to freedom of expression. However, if the discipline is suspected of being retaliatory, the domestic authorities must show that the sanctions were legitimate.  

Todorova had several other claims that were either unsuccessful, or were read in conjunction with the Article 10 violation. For example, the court did not find that there was a violation to Article 8 of the Convention, which provides for an individual’s right to respect for their private and family life. The basis for this claim was that the disciplinary proceedings caused significant media coverage that may have damaged her reputation. However, the court found that the media coverage was fairly balanced in terms of positive and negative attention. Proving this violation requires a standard of severity that the court felt was lacking.

Despite Todorova being unsuccessful in some of her claims, the court unanimously agreeing that there was a violation of her freedom of expression is a significant victory after a legal battle that had lasted for several years.

For further Information, please see:

American Society of International Law – ECtHR Issues Two Judgments on Freedom of Expression – 19 Oct. 2021

EU Law Live – Disciplinary proceedings against Bulgarian judge Miroslava Todorova breached freedom of expression ECtHR rules – 19 Oct. 2021

European Court of Human Rights – European Convention on Human Rights – 2 Oct. 2013

European Court of Human Rights – Disciplinary Proceedings Against and Sanctions Imposed on the Applicant, a Judge and President of the Bulgarian Union of Judges, Violated her Right to Freedom of Expression – 19 Oct. 2021

Radio Bulgaria – Judge Miroslava Todorova wins case against Bulgaria at the European Court of Human Rights – 19 Oct. 2021