It hardly needs to be said how extraordinary a time the years 1989, 1990, and 1991 were for Europe, as one totalitarian system after another collapsed and the cold war in Europe came to an abrupt and unexpected end. There were lives lost in some countries, but for most States the transition, though sudden and dramatic, was largely a nonviolent one. Inevitably, there followed a time of turmoil and uncertainty. The birth (or rebirth) of a democratic system cannot always be smooth or serene. Transition is a long process, whose duration and outcome cannot be predicted.

That moment in Europe’s history was – to borrow a phrase from the wartime context – the Council of Europe’s finest hour. A historic rendezvous between the nations of west and east, after decades of strict separation and ideological antagonism. With its strong and developed acquis in matters of democracy, human rights and the rule of law, the Council embodied for the peoples of Eastern Europe a future of freedom. The same applied to the European Court of Human Rights – I would say applied a fortiori – being the crowning achievement of the Council of Europe. The political decision was made by the organisation to adopt an open door approach to these candidate members – joining the Council, accepting its values and aims, integrating into its structures, and accepting its core human rights treaties would be part of their transition, not the reward for it. The challenges were therefore immense:

• for new democracies to rapidly accept and absorb a sophisticated body of norms and standards; and

• for the competent international institutions and organs to ensure proper application and observance.

There were dissenting voices too, who warned that this was too much, too fast. There was real concern at the capacity of the international mechanisms to respond to the new demands made on them. There was concern too for the rigour and integrity of European human rights standards.

The theme of the book is the national experience. But it is also worth asking – what was the impact of these tremendous changes on the Convention mechanism? Wojciech Sadurski has used the term ‘benign paradox’ when looking at the Convention system pre-1990s, the paradox lying in the system’s actual use compared to what its authors had intended.Footnote ¹ Not many truly grave, gross, or flagrant violations of human rights came to Strasbourg during that time. In his view, ‘the Court settled on a role of a legal fine-tuner, acting at the boundaries of rights, setting up subtle tests of proportionality to examine restrictions aimed at legitimate ends’. It established ‘standards which were admittedly exciting for academic lawyers, but rarely going so far as to reverse really important policy and legal choices adopted within national systems’. This was to change radically after the 1990s.

Regarding the Court’s response to this great challenge, my first point is that it is plain today that any concern about diluting the standards of the Convention proved to be unfounded. There was no lessening or softening of States’ obligations under the Convention. There was no variable geometry. The principles developed during the Convention’s first phase, along with the principles of interpretation – above all the concern to ensure an effective and dynamic human rights guarantee – were applied in full to all new States. There was no probationary or honeymoon period.

Nor were these States subjected to stronger international scrutiny, or allowed lesser margins of appreciation. There was no double standard, no ‘east European case-law’. Just the case law applied to eastern European States: Un poids et une mesure. The ‘single standard’ approach is also to be seen in the fact that in its comparative surveys looking for the degree of consensus among the Contracting States, which is a common feature of our practice, the Court quite naturally included the new Contracting States. The risk of this holding back the development of human rights law, or leading to a generally broader margin of appreciation, has not materialised.

Yet the Court was not insensitive to the context of democratic transition, or to the needs of emergent democratic systems. This is clear from, for example, the early case of Rekvényi v. Hungary,Footnote ² in which the Grand Chamber took account of the importance for the new democratic order in Hungary to break with the previous tradition of a politicised police force. I would also refer to Ždanoka v. Latvia,Footnote ³ in which the Grand Chamber accepted as valid the reasons behind the restriction on the applicant’s political activities, which were a safeguard for that country’s newly independent and democratic regime. In the BroniowskiFootnote ⁴ case, to give a different type of example, the Court recognised the exceptional difficulty faced by governments managing the transition from a command economy to a free-market one, although it did, of course, find that the applicant’s property rights had been infringed. What the new States brought to the system was the opportunity for the Court to apply the Convention to new situations, including flagrant and massive human rights violations. In terms of gravity of the cases decided, the European Court came to have more in common with the Inter-American Court of Human Rights, accustomed since its jurisdiction began in the late 1980s to traumatic situations.Footnote ⁵ It has been a quantitative and qualitative leap for European human rights law. These past twenty years have brought depth and detail to the Court’s jurisprudence, specifying and concretising every Article of the Convention.

Of course, these are not the only types of cases taken against these States. There are the typical routine cases coming from the east as from anywhere else. Other cases reflect more the social situation of that part of Europe than its political development. I think for example of the complaints brought against different States by, or on behalf of, the Roma. In particular, the landmark ruling by the Grand Chamber in the D.H. case,Footnote ⁶ upholding a complaint of discrimination in the education of Roma schoolchildren.

The advent of the eastern European States transformed the life of the Court in other ways. It made this Court the largest international court in the world, and dramatically raised its international profile. It transformed the role of court president, adding a very important public relations role to the normal judicial aspect of it. It is a post that brings much travel, much contact, and much dialogue with national authorities. The Court today appreciates fully the importance of interacting constructively with the different national systems. The dialogue with national courts is pursued continuously, and I look forward to it being formalised in future through Protocol No. 16 on advisory opinions. Translation of the Convention case law is steadily increasing, thanks to the assistance of the Human Rights Trust Fund, which also supports the Court’s training programme for national lawyers, with the emphasis being placed on States that are considered in this book.

Let me record here my appreciation to the main organisers of the event that has led to this book. To my former colleague Ineta Ziemele, and to my current colleague at the Court, Iulia Antoanella Motoc. I express my gratitude for an excellent seminar in 2013, and the present publication that chronicles so well an extraordinary chapter in the protection of human rights in Europe.

Dean Spielmann

President of the European Court of Human Rights

(2012–2015)