This article attempts to discover the key elements of the democratic principle, as described by the judges sitting in Luxembourg and Strasbourg, whose case law reveals the underlying idea of democracy at the supranational level. Until recently the debate on democracy was limited to the national level. But things are changing, and this article shows the gradual emergence of a process led by supranational courts, in which the application of the democratic principle finds multiple grades and variations. In this way the supranational/international courts have opened a new chapter in the process of constitutionalization of international law.
The principle of nullum crimen sine lege expresses an old idea that only the law can prescribe a particular act as punishable. It is commonly understood as a requirement of sufficient definiteness of an offence, in particular – of a statutory description of an offence before it has been committed (lex scripta, lex praevia), and of clarity and precision in criminal provisions so as to enable an individual to conform with them (lex certa), as well as their strict interpretation (lex stricta). Nowadays the principle is an internationally recognized human right to foreseeable criminalization, guaranteed by, inter alia, Article 7 of the European Convention on Human Rights. However, the European Court of Human Rights seems to formulate two slightly different requirements on its basis, namely that the application of criminal law must be foreseeable for an individual and coherent with the “essence of an offence”. One may question whether this can serve as an adequate “shield” from arbitrariness on the part of State authorities. Nevertheless, the core aim of such a flexible approach is not to promote legal security for potential perpetrators, but to achieve better protection of human rights in general.
This article provides an overview of “memory laws” in Europe, reflecting upon what may be called the “asymmetry” of such laws. It then looks at the special case of Poland and its troubled experience with memory laws; it considers the question of whether, in the eyes of the law – genocide, and in particular the Holocaust – is so “special” that its public denials warrant legal intervention. It also looks at the case law of the European Court of Human Rights and its (not necessarily coherent) “doctrine” on memory laws and their consistency, or otherwise, with the European Convention for the Protection of Human Rights and Fundamental Freedoms (and in particular with freedom of expression as laid down in Art. 10). The article concludes by asserting that even if we take the law as an indicator of European public memory, there is no consensus on the past, except perhaps for the special case of the Holocaust. The main challenge lies in determining whether memory laws, defined by some as social engineering and the imposition of “imperative” versions of memory, are consistent with the principles inherent in open, democratic and free societies in Europe. This challenge remains unmet.
The judgments delivered by the European Court of Human Rights in Al-Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland highlight the potential tension that may arise between states’ broad reliance on national security grounds to withhold disclosure of secret files and compliance with their obligations under the European Convention on Human Rights. The present article examines the above-mentioned judgments, focusing, in particular, on how (and to what extent) the withholding of secret information may infringe on the right to the truth and, as far as proceedings before the European Court of Human Rights are concerned, the state’s duty to cooperate with it.
This article is in tended to provide a legally sound explanation of why and how the contemporary International Humanitarian Law and International Human Rights Law legal frameworks offer tools to address the uncertain ty, lack of in formation, and the consequences thereof in relation to missin g persons and victims of enforced disappearances in the context of armed conflicts which predated the adoption of such frameworks. To this end, three scenarios will be examin ed: the contemporary claims of the families of those who were killed in the Katyń massacre in 1940; the claims for in formation and justice of the families of thousands who were subjected to enforced disappearances durin g the Spanish Civil War between 1936 and 1939; and the identification efforts concernin g those reported missin g while in volved in military operations in the context of the 1944 Kaprolat/Hasselmann in cident which took place durin g the Second World War. The analysis of these scenarios is conducive to the development of more general reflections that would feed in to the debate over the legal relevance of the distant past in light of today’s in ternational legal framework.