Constitutional Identity vs. Human Rights
In two recent Latvian cases concerning the Russian-speaking minority decided respectively in September and November 2023, the ECtHR made clear that protection of constitutional identity has now been elevated to a legitimate aim for a differential treatment under the Convention. This post explores how the protection of constitutional identity has been deployed to enable a collective punishment by association with a former occupier, and how the ECtHR’s reasoning has effectively endorsed such a punishment, which is unbefitting of a liberal democratic system the ECHR aspires to represent. Until the three cases were decided, no liberal European democracy could argue without losing face that suppressing a large proportion of its population was its constitutional identity – one of the goals of its statehood. Today, this claim is seemingly kosher, marking a U-turn in the understanding of what the European human rights protection system is for minorities in Europe.
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‘Inherently Repugnant’?
Indonesia has recently gained the international spotlight for criminalising sex outside marriage in its new Criminal Code. Criminalisation of sex outside marriage and cohabitation constitutes a setback for the right to privacy, which covers consensual sexual activity between adults in private. Nevertheless, the bigger picture is much more nuanced.
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