This article highlights a number of interesting and significant cases concerning minority rights at the Strasbourg Court during the recent period of just over two years. The issues include the continuing deadlock in enforcing the Court’s controversial antidiscrimination judgment in Sejdic and Finci v. Bosnia and Herzegovina; a new emphasis on and attention to social and economic rights as protected by the Revised Social Charter in the context of forced evictions; the Court’s expanding jurisprudence on the positive duties of the state; the fascinating Slovenian case on the fate of the “erased;” and a continuing focus on discrimination against Chechens as part of the Court’s recent return to a focus on the long-neglected Article 14 of the Convention. The article concludes by summarising a new scholarly interpretation of minority rights through the concept of vulnerability.
This report analyses the dramatic turn in the policy of the Russian Federation towards its minorities in 2015. In March 2014, the Kremlin created a new state agency, the Federal Agency for Affairs of Nationalities. This new Agency is headed by an FSB Colonel with combat experience in the North Caucasus, and no previous experience of work with minorities. There are three main manifestations of the new turn. First, there is an emphasis on protection of national security as the central aim of Russian nationalities policy, together with the strengthening of the state sovereignty and integrity of Russia. Second, there is the promotion of the Russian language, which is now seen to be in some ways under threat. And third, documents and speeches are replete with references to the ‘Rossiiskaya natsiya’ [‘Russian nation’], not to be confused with the ‘Russkiy narod’ [‘Russian people’]. This turn has been instituted against the background of a systematic ‘conservative turn’ by the Kremlin, with increasing obstacles placed in the way of all civil society organizations through the 2012 Foreign Agents Law, and the May 2015 Law on Undesirable Organizations. The ‘securitization’ of minorities policy in Russia and the appointment of FSB Colonel Barinov to lead the new direction of minorities policy in Russia will, as he has frankly stated, signify that preservation and promotion of cultural and in particular linguistic rights will be seen as threats to Russia’s continued existence.
This article addresses a key contemporary problem confronting the Strasbourg Court. While it is well established that seeking the historical truth is an integral part of the right to freedom of expression, it cannot be the role of the Strasbourg Court to arbitrate underlying historical issues (Dzhugashvili v. Russia, 2014). Still less can it be for the Court to decide on individual or collective guilt for crimes of the past, rather than on violations of Convention rights. For example, the Court has found many violations of human rights in the more recent armed conflicts in Northern Ireland, South-East Turkey, Chechnya, or the Basque Country, but has never sought to pronounce on the legal or moral issues underlying these conflicts, or on their deep historical roots. However, the existence of the ussr for more than 70 years, and 12 years of Nazism in Germany, leading to wwii, dominated the 20th century in Europe. These have both been described as totalitarian regimes. The fall of the Berlin Wall in 1989 followed by the collapse of the ussr in 1991 led to dramatic changes not only in statehood and political systems, but also a strong desire for states emerging from the ussr or Soviet domination to purge the past, and to identify and punish wrongdoers. Various forms of lustration have been a product of this desire, with the exception of the Russian Federation, where the characterization and proper evaluation of its Soviet past are questions still unresolved. Increasingly the Strasbourg Court has been called on to decide highly controversial cases, for example Ždanoka v. Latvia (2006), Vajnai v. Hungary (2008), Kononov v. Latvia (2010), Korobov v. Estonia (2013), Soro v. Estonia (2015). The author was counsel for the applicants in some of these cases. I ask: what are the dangers and challenges for the Strasbourg Court in adjudicating such cases, and how can it avoid the appearance of taking sides in bitter and intractable arguments?