On Violations of Human Rights by the Communist Regime in Poland

During the communist regime, the Polish judicial apparatus was construed as a tool to liquidate the opposition. Many people were killed, imprisoned, tortured, dispossessed, and their families persecuted and condemned to lives of abject poverty. After the fall of communism, the perpetrators of these atrocities were not confronted with their crimes and continued to function surreptitiously. Their shame and guilt have been suppressed, while the wrongs suffered by the victims have not been remedied, and thus continue to hang over the nation like the Sword of Damocles. The unexpunged culpability and corrupted conscience inherited by their descendants continue to foment social resentments. The aim of the article is to suggest the approach to restoring social equilibrium taking as the premise that the legacy of historical violence must be remedied, and the wrongs must be rectified a priori. The scientific methods used in the article are restitution, restoration, reconciliation, and mediation. The sense of social and individual justice is at the core of humanity. Where this is lacking, social unrest arises and spills over with violence. The crimes of the communist regime must be conceded to prevent an impending revolution. Compassion toward the suffering can pave the way to forgiveness, and through that, to reconciliation.

Can Predictive Justice Improve the Predictability and Consistency of Judicial Decision-Making?

There has recently been talk of algorithms that predict decisions in legal cases being used by the judiciary to improve the predictability and consistency of judicial decision making. We argue that their use may minimise the error rate of decisions in the long run, but that this would require not only major technical advances but also major changes in legal thinking about what is the most important objective of judicial decision-making: optimising individual justice in a particular case or reducing errors in the long run. We further argue that if algorithmic decision predictors give any useful information in individual cases to judges at all, this is not in its predictions but in its explanations.

The Individual and Administrative Justice

This chapter discusses what individual justice means in the realm of administrative justice. The standards of justice and fairness that apply in administrative decision-making need consideration from the perspective of the service user. Should the administrative justice system serve the citizen or the state? What role do individual service users have in the design, use, and evaluation of more bureaucratic systems of redress? Different notions of justice, as they relate to primary decision-making processes, have been described through various models. This chapter provides a set of tools with which to study the subject and argues for the importance of user voice and perceptions of fairness in the provision of a more citizen-focussed justice.

Multicultural attitudes in Europe: A multilevel analysis of perceived compatibility between individual and collective justice

Contemporary political philosophers debate the degree to which multiculturalism, with its emphasis on collective justice principles, is compatible with Western liberal societies’ core ideologies based on individual justice principles. Taking on a social psychological perspective, the present study offers a cross-national, multilevel examination of the asymmetric compatibility hypothesis, according to which majority and ethnic minority groups differ in the association between support for individualized immigration policies (based on individual justice principles) and support for multiculturalism (based on collective justice principles). Using data from Round 7 of the European Social Survey (N = 36,732), we compared minority and majority attitudes across 1) countries with stronger versus weaker equality policies at the national level (a Migrant Integration Policy Index [MIPEX] sub-dimension indicator), and 2) Western and post-communist European countries. In line with the asymmetric compatibility hypothesis, ethnic minorities perceived significantly less incompatibility between individual and collective justice than majorities. This majority-minority asymmetric compatibility was stronger in Western countries compared to post-communist European countries. Moreover, in Western countries and in countries with stronger equality policies, ethnic minorities generally supported multiculturalism to a greater extent than majorities. Overall, these findings suggest that deep-seated ideological orientations of national contexts shape minority and majority justice conceptions and hence, also, multicultural attitudes. Implications and future research directions are discussed.

“Unity in Diversity” Reloaded: The European Court of Human Rights’ Turn to Subsidiarity and its Consequences

The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights’ long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.

Post-Conflict Land Restitution: The German Experience in Relation to Colombian Law 1448 of 2011

This article compares the legal regimes of land restitution that were enacted in Germany, after World War II and again after the Cold War, with those enacted in Colombia after a decades-long armed conflict, in which many people lost their land. Many parallels can be drawn between these experiences: both countries decided to restitute land in an effective manner but also excluded groups of victims - which was accepted by both countries’ constitutional courts. Important differences emerge regarding the function of restitution for the resolution of the conflict and in its implementation in practice. These differences are owed to the different origins and causes of the conflicts, and to different circumstances prevailing at the time of restitution. It can be clearly shown that post-conflict restitution of land is very context-sensitive. Neither in Germany nor in Colombia were the objectives of the restitution regimes, individual justice and further policy aims, fully achieved. Nevertheless, the considerable extent to which justice was indeed attained by restitution should not be talked down or diminished.

Diversity on the Bench of the European Court of Human Rights

International courts differ from national courts in terms of the perception of their diversity. Factors that constitute the identity of adjudicators and are perceived as neutral at the domestic level, such as age, former profession, and cultural background, are not necessarily considered neutral in an international court. Conversely, factors that are not seen as acceptable domestically, such as membership of a political party, may be acceptable for judges at the international level. In order to understand the role of international judges in general and those on the European Court of Human Rights (ECtHR) bench in particular, this chapter scrutinizes the factors influencing the world views and personalities of judges and their effects on the judicial process (leaning towards collective or individual decision-making) as well as the extent to which the judiciary is perceived as trustworthy. The chapter also analyses the ECtHR’s continuous battle with the fundamental balancing act of dispensing individual justice while safeguarding the consistency of the system in its entirety. In the final section, the chapter examines the factors that unify the Court despite, or perhaps even because of, its diversity.