Human Rights in Times of Crisis: The Greek Cases before the ECtHR, or the Polarisation of a Democratic Society

Abstract

For the last six years, the Greek state has experienced a severe economic crisis, which has resulted in cuts to public expenditure. Despite the international character of the economic crisis, Greece has found itself at the heart of the austerity measures that followed it. Unfortunately, this long period of economic recession has not left the legal protection of human rights intact. Due to the current crisis, questions regarding the legality of the state’s intervention in individuals’ peaceful enjoyment of possessions have already reached international courts. Taking an inductive approach, this article attempts to assess the response of the European Court of Human Rights (ECtHR, or Strasbourg Court) to the Greek ‘crisis cases’. The recent judgment in the case Koufaki & ADEDY v Greece is the starting point of this analysis, further examining how the ECtHR treated similar cases that occurred in other states (like Portugal and Hungary). The second case study (Giavi v Greece) builds upon the preceding analysis of Koufaki & ADEDY v Greece, recognising an emerging judicial pattern regarding the crisis cases. In the next section, this article explores the long-established margin of appreciation doctrine and notes its expansion. It then examines the institutions of property and democracy, arguing that the latter’s realisation is attainable only through the former’s effective protection. Finally, it suggests that the European jurisprudence in the crisis cases is devastating for democracy, because the timid approach of the Strasbourg Court effectively permits the curtailment of human rights. Subsidiarity, the legal equivalent of this timidity, is the major characteristic of the ECtHR’s jurisprudence, both in the crisis cases, and more generally in cases appertaining to the right to property. This article concludes that the principle of subsidiarity has become a ‘Trojan horse’ that renders the ECtHR ineffective, which is also detrimental to democracy, as the protection of human rights is not the first option when there are certain economic implications for the impugned state.