Prawa człowieka

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    How long does the past endure? ‘Continuing violations’ and the ‘very distant past’ before the UN Human Rights Committee
    (Netherlands Quarterly of Human Rights, SAGE, 2023) Baranowska, Grażyna
    The concept of ‘continuing violation’ allows reviewing applications concerning effects of violations that started before a treaty came into a force with regard to a state that allegedly committed the violation. This article analyses how the UN Human Rights Committee has recently approached two communications concerning continuing violations that occurred in the 1930s and 1940s (K.K. and Others v Russia; F.A.J. and B.M.R.A. v Spain). It critiques the fact that the Committee has introduced an additional qualification to its case law on continuing violations, namely that it has no jurisdiction over the violations with continuing effect, when underlying violations happened in the ‘very distant past’. The article argues that communications raising violations of the families of forcibly disappeared persons – at least these brought by their children – should not be ruled inadmissible because of time constraint since the disappearances. Lastly, the article reveals a tacit influence of the European Court of Human Rights on the Committee in the analysed case law.
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    Persuasion and Legal Reasoning in the ECtHR Rulings : Balancing Impossible Demands
    (Routledge, 2023) Mężykowska, Aleksandra; Młynarska-Sobaczewska, Anna
    This book analyses the case law of the European Court of Human Rights (ECtHR) from the point of view of argumentative tools used by the Court to persuade the audience – States, applicants and public opinion – of the correctness of its rulings. The ECtHR judgments selected by the authors concern justification of some of the most difficult issues. These are matters related to human life, human dignity and the right to self-determination in matters concerning one’s private life. The authors looked for paths and repetitive patterns of argumentation and divided them into three categories of argumentative tools: authority, deontological and teleological. The work tracks how ECtHR judges aim to find a consensual, universal and, at the same time, pragmatic and axiologically neutral narrative on the collisions of rights and interests in the areas under discussion. It analyses whether the voice of the ECtHR carries the overtones of an ethical statement and, if so, to which arguments it appeals. The book will be of interest to academics and researchers working in the areas of jurisprudence, human rights law, and law and language.
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    Right to Culture
    (SCHOLAR Publishing House, 2018) Młynarska-Sobaczewska, Anna
    The inclusion of the right to participate in culture into the human rights order in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, as well as many national constitutions, which were created in the last three decades of the 20th century in particular, has been a manifestation of the desire to ensure that all people benefit from and contribute to the cultural heritage of humanity and the universal issue of the human community, in which the values and attitudes through which it is shaped are being expressed. However, the evolution of guarantees and the content of the right to participate in culture has not been linear and has not produced any definite results so far, nor has it led to optimistic conclusions. The right to culture has struggled to pave the way for itself in the contemporary postmodern world of shared values and axiological and conceptual chaos. However, this does not mean that establishing the right to participate in culture, understood as artistic culture, as a universal right, is doomed to be forgotten as an idea that is based on the already unfashionable paradigm of universal enlightenment and common values and patterns. Art culture – regardless of the multiplicity and controversial nature of attempts to define it – has certain characteristics that allow it to be distinguished and protected; these include the ability to evoke an aesthetic experience that is significantly distinct from other human emotions, as well as the transfer of attitudes and meanings conveyed through it. Therefore, it constitutes an environment in which people learn to perceive and understand the meaning of their attitudes, behaviours, symbols and works – it is the most universal language and a code of understanding between people, so it constitutes the greatest and most comprehensive legacy of human civilization, at the same time being an extremely valuable resource, a common good that allows us to find common meanings, values and attitudes, i.e. to fully participate in the life of human community. The concept of universal guarantee of the right to participate in the world of culture understood as artistic culture has been expressed at the international level through the design of the second generation right, finding its place in the catalogue of economic, social and cultural rights. However, the problems identified in the subsequent chapters concerning the freedom of artistic creation and the horizontal impact of the freedom of creativity and the right to use it, as well as the cultural goods, indicate that the right to culture has a complex structure and it is difficult to clearly qualify it as a right of purely social character. Moreover, an in-depth analysis of the elements, content and scope of many rights and freedoms indicates that it is neither possible nor necessary to clearly define entitlements according to the criterion of their specific nature. The study on the right to culture is a good example of this. It is impracticable to present the content of this right, designed at the level of international documents, i.e. the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights and guaranteed in many national constitutions, in isolation from the standards of freedom of expression and, therefore, artistic expression. The findings made with regard to constitutional regulations, and above all the jurisprudence of courts, especially the European Court of Human Rights, fully support the conclusion that there is a heterogeneous structure of the right to participate in culture, called a ‘transverse’ right in literature for this reason. At the same time, the above-mentioned pathways of searching for the content of social rights in freedoms and rights of a negative nature allow us to find certain standards of positive state obligations and those of public authorities with regard to observance of rights traditionally classified as social rights. Among such methods, it is worth paying attention to the search for and analysis of the core of every right and freedom, as well as the prohibition of regression of the degree of observance and realization of rights. When investigated by national and international courts, these methods can lead to those positive state obligations that are necessary to preserve the content and minimum protection of the right to culture. The analysis of the case-law also demonstrates that the protection provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms in the area of freedom of artistic expression in a number of judgments also means finding positive obligations on the part of public authorities in this field, in particular with regard to protection which is granted horizontally, as well as towards groups that are marginalised, excluded and dependent on public authorities more than others. The set of rights related to participation in cultural life is becoming increasingly widespread in judicial protection and evolves from declarative international documents to the level of implementation within the framework of national laws and policies. In its case-law, the European Court of Human Rights also strongly emphasises the importance of the Internet in ensuring access to information and cultural life. Although these rulings primarily concern the right to communicate and inform, the standard they designate is significant and may constitute the starting point for determining a minimum level of access to cultural life, as well as the right to individual and social development through access to the media and their content. This standard requires the state to fulfil its positive obligations to ensure access to them – and thus provide a basis for the creation of a specific structure of claims, expectations and guarantees, which constitute components of the right to culture, understood as the right to freely participate in artistic culture. The egalitarian nature of the contemporary cultural life, connected above all with a radical change in accessibility caused by Internet communication and digitalization, among other things, changes the existing model of access to cultural assets from the relation passive recipient – creator to the model of participation, i.e. an increased activity on the part of the recipient, who often becomes the creator – or recreates the work. Following the transformations in the sphere of accessibility and active participation in cultural life, where everyone can become a creator or a person who conveys cultural content, the right to participate freely in artistic culture must be reconstructed and supplemented – with such elements as the right to freely share creative work, the right to exchange ideas and opinions with others, the right to freely and creatively use cultural content already made available and the right to participate in and produce cultural content. All these elements may to a large extent concern horizontal actions, in particular with regard to copyright protection. The collision of the right to culture and rights related to works of art becomes particularly visible and relevant in the era of universal access to all manifestations of creative life and its use in a digitalized environment. In this respect, however, both legal regulations and the jurisprudence of courts are only some of the factors that shape this relationship, and thus the scope and content of the right to participate in culture, as there are unbelievably strong social activities in this sphere, which may undermine the hitherto shaped model of copyright. On the other hand, sharing in the digitalised environment cultural assets held in the resources of public institutions has already become an obligation, the execution of which belongs to the Member States of the European Union, which significantly affects the content of the right to culture. In terms of other elements that contribute to the right to participate in culture, many belong to the sphere of cultural policy and, more generally, to social policy. The right to culture in contemporary countries, in particular in countries where the culture of state patronage is traditionally dominant, requires not only that public authorities ensure that they refrain from interference in the sphere of artistic expression and access to artistic culture, but also that they fulfil a number of positive obligations, in particular regarding fair and universal access to financing of artistic life. In European culture, countries adopt a strategy of public patronage based on three principles: 1) cultural life requires financial support, 2) there is a distinction between artistic culture and the sphere of entertainment, 3) public authorities are obliged to ensure access to artistic culture and cultural assets for their citizens. This means that cultural policy must be pursued through the financial support of artistic creativity, preceded by the requirement of aesthetic judgments. Judgments on art must be legitimized, and therefore issued by appropriate bodies and using transparent procedures. In the European countries, it is slowly becoming apparent that such a standard has been developed – in most countries, financial means intended for the support of culture are granted through competitive procedures and by independent expert bodies, so it is becoming more and more important to define the standard of allocation of funds for artistic creation in the sense of minimum requirements of independence of bodies determining the allocation, transparency of procedures and the criteria in use. This is yet another important condition for the freedom of artistic creation and the associated right to participate in cultural life in the context of positive state obligations. The exercise of the right to culture thus requires not only judicial protection but also the design and implementation of state activities, i.e. legislation and conducting cultural policy. Only the entirety of these entitlements guarantees that the right to participate in cultural life gains its proper meaning. It is therefore a right, the implementation of which requires state action coordinated at many levels. The first one is the sphere of legislative action. Legislation determines, among other things, which forms the protection of cultural heritage takes, how the boundary between the sphere of freedom of artistic creation and protection of other values (morality, privacy, freedom of religion) is determined, how the limits of using the works of others’ authorship are defined. In turn, in the area of social and cultural policy, the state takes actions and decisions that decide on the form and extent of protecting the social status of creators, implementing artistic programmes and activities, supporting and financing them and promoting them in international relations. In this area there is also a huge field of recognition for the exercise of rights of access to cultural goods and services by all entitled persons. Finally, it is in the sphere of administration that individual decisions are made in matters of support for artistic activity, protection of cultural goods – both in the sphere of covering them with state guardianship and financial subsidies for their restoration and maintenance. Yet in this respect, too, one can find the very beginnings of developing standards, which co-create the model of the right to culture – free access to artistic creation and freedom of art. Such standards concern many spheres, the most interesting of which seems to be the procedural sphere, connected with the model of supporting cultural life and the use of mechanisms devised in other areas of public law aimed at achieving procedural justice and transparency of decisions made. They also relate to social guarantees of support for artistic activity, as well as instruments giving universal and non-discriminatory access to cultural content. In contemporary countries, in particular those that are subject to the European system of Conventional Protection of Rights and Freedoms, the scope and content of increasingly explicit cultural policy instruments may become the basis for formulating a certain standard of protection. The ban on regression and the obligation to preserve the essence of rights, including social rights, must be considered in relation to the status quo – and it is always based, independently of the state, on cultural policy already pursued and artistic activities carried out by the state and other public bodies. Finding the standard of exercising the right to culture within the framework of cultural policy, i.e. creating a real possibility of using cultural goods and participating in cultural life, especially from the perspective of the rights of an individual (creators and recipients of cultural content) is difficult and most controversial, as is the search for any positive obligations of states with regard to social rights. It is not the case, however, that national courts – especially at the level of constitutional courts – are powerless in this area, and the participants to cultural life are deprived of the option of protection and demand for ensuring that their rights are exercised, also in terms of positive state obligations. Documents on the interpretation and application of the International Covenant on Economic, Social and Cultural Rights oblige states to exercise their rights progressively through legislative, administrative, judicial, economic, social and educational measures in order to fulfil their obligations under the Pact. In legal practice this means a ban on the regression of established standards of granted rights, arbitrariness in their application and determination of their limits and content, the obligation to maintain rationality in limiting them, as well as the obligation to maintain the essence of the declared right at the constitutional level constitute instruments of judicial protection, which will allow to protect the standards of cultural policy developed in this sphere. It is crucial for the exercise of the right to participate in cultural life to determine the level of state policy and legislation that is already guaranteed, and thus to develop the essence of powers in judicial case-law. On the other hand, the addition of a legal and human perspective to the activities in the sphere of protection and support of artistic culture will make it possible to identify the rights that make up the right to culture as the centre and keystone of cultural policy; guaranteeing an individual right to culture should become the primary objective of legislative and administrative efforts made in this field, so as to satisfy the protection of the sphere of contact with art, symbol and the ability to evoke aesthetic experience – a true rationale for the creation and interpretation of the right to culture.