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.”
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.
Journal of Global Rights and Organizations, Associate Articles Editor
ETHIOPIA — A year-long civil war between the Ethiopian Government, led by Prime Minister Abiy Ahmed, and soldiers of Tigray People’s Liberation Front (TPLF) has recently intensified. The Tigray conflict can be traced back through generations in Ethiopia, but the recent conflict began in the fall of 2020. When elections were postponed due to the coronavirus pandemic, TPLF held regional parliamentary elections in defiance of Abiy’s orders. “Abiy called the vote illegal, and lawmakers cut funding to TPLF leadership”. Tension escalated between the government and Tigray leaders until reaching a breaking point in November of 2020. Abiy, assisted by troops from the neighboring country of Eritrea, ordered a military assault on the group in response to an attack on a federal army base. Millions have been affected by the civil war, and experts are worried that the spreading conflict in Ethiopia could destabilize the entire Horn of Africa.
Civilians walk next to an abandoned tank in the Tigray region of Ethiopia. Photo courtesy of Foreign Policy.
The United Nations High Commissioner for Human Rights led a joint investigation into alleged violations of international human rights in Tigray. The report highlighted the widespread use of sexual violence, torture, and unlawful attacks on civilians committed by parties on all sides of the conflict. October 23, 2021, the African Commission on Human and People’s Rights released a statement reflecting its deep concern “about the escalation of the conflict in the Tigray Region of Ethiopia and its impact on the civilian population”. The commission urged the federal government “to restore and facilitate the speedy and unhindered access of humanitarian aid and relief” to the millions of civilians affected by this war.
Now more than a year later since the original developments, Tigray forces, supported by other rebel groups in Ethiopia, have their eyes on the capital city of Addis Ababa. Current reports are conflicted as to how close the rebels are to the capital city, however, a new state of emergency has been declared by the government. While the state of emergency was apparently instated due to an abundance of caution, it allows for the conscription of any citizen over the age of 18 who owns a firearm. The armed forces have also asked veterans to rejoin the military. In a recent speech and multiple Facebook posts, Abiy pledged to keep fighting the rebels. The Nobel Peace laureate has found himself suspended from Facebook for these posts which violated the companies’ policies on incitement and support of violence. U.S President Joe Biden, German Foreign Minister Heiko Maas, the U.N. Security Council, the African Union, Kenya, and Uganda have all called for a ceasefire. In a conflict that has already killed thousands, and displaced millions, it remains unclear how many more civilians will be affected by the crisis.
Journal of Global Rights and Organizations, Associate Articles Editor
STRASBOURG, France — In a Chamber judgment handed down on October 26, 2021 by the European Court of Human Rights, it was ruled that Spain’s practice of prioritizing the paternal surname over the maternal surname in parental disputes was discriminatory. The case before the court was León Madrid v. Spain and it arose from legislation in Spain that required, in a dispute between parents, a child would be given the father’s last name first, followed second by the mother’s last name.
Members of the European Court of Human Rights appear in Chamber. Photo courtesy of Jean-Francois Badias.
In 2005, Josefa León Madrid gave birth to a child whose name was entered into the registrar of births using the two surnames that Josefa had, León Madrid, (Josefa’s father’s last name, followed by Josefa’s mother’s last name). After a non-marital paternity suit in 2006, the judge in the case ruled that the child in question would, in accordance with Spanish Law under Article 194 of the Regulation Implementing the Law on the registration of births, marriages and death, would be given two last names, her biological father’s first, followed by her mother’s second, due to parental disagreement. León Madrid challenged the ruling by the judge, requesting an inversion of her daughter’s last name (mother’s surname, then father’s), but the request was denied.
The Court found that the Spanish law prioritizing the father’s surname over the mother’s was discriminatory against women under Article 14 of the European Convention of Human Rights, which prevents discrimination. The lack of equal protection under the law, the Court found, led to a difference in treatment exclusively due to the person’s gender: “The Court noted that two individuals in a similar situation – the applicant and the child’s father – had been treated differently and that the distinction was based exclusively on grounds of sex.”
The Spanish government denied the existence of discrimination in this practice, stating that the daughter could change her last names upon turning 18 years old. However, the Court found that the lack of ability to change the surname order of a child could have far-reaching impacts that go beyond equal protection under the law and gender discrimination: beside the “unquestionable impact that a measure of such duration could have on the personality rights and identity of a minor, who would be obliged to give precedence to the surname of a father with whom she was only biologically related, the Court could not overlook the repercussions on the applicant’s life too: as her legal representative who had shared her daughter’s life since her birth, the applicant suffered on a daily basis from the consequences of the discrimination caused by the inability to change her child’s name.”
Article 194 has since been amended by Law no. 20/2011, which would allow a “civil status judge” to decide the order of surnames in parental disagreement, but, at the time of the case, because León Madrid’s daughter was already 16 years old, the amendment did not apply to her.
