Lecture at Waseda University Tokyo, 14 March 2016
Jörg Polakiewicz
Professor at the Europainstitut of the University of Saarbrücken and
Director of Legal Advice and Public International Law (Legal Adviser), Council of Europe.[1]
Professor at the Europainstitut of the University of Saarbrücken and
Director of Legal Advice and Public International Law (Legal Adviser), Council of Europe.[1]
Introduction
It is a particular pleasure for me to speak today at the prestigious Waseda University in
Tokyo to distinguished scholars from all over Japan. I would like to thank in
particular Professor Koji Tonami and my old friend Professor Kaoru Obata
without whose support my participation today would not have been possible.
Coming to Japan,
I am always impressed by the depth and breadth of knowledge among you about our
complex system of fundamental rights protection. It is a truly “crowded house”.[2] Citizens
and legal practitioners are confronted with different binding texts to be
applied sometimes
simultaneously, using different
standards, structures, terminology and qualifications. These are domestic law,
including in most cases the national constitution’s fundamental rights, the
European Convention on Human Rights (“ECHR”) and its protocols as well as EU
law, in particular the EU Charter of Fundamental Rights.
How to best describe the resulting complexity? At
the opening of the judicial year on 31 January 2014 in Strasbourg, the
President of the German Bundesverfassungsgericht, Andreas Voßkuhle compared the
delicate balance between the various institutions to a mobile, a kinetic
sculpture consisting of an ensemble of balanced parts that can move but are
connected by strings or wire.[3]
Another metaphor uses the musical counterpoint, the relationship between voices
that are interdependent harmonically and yet are independent in rhythm and
contour.[4] In
any case, the idea of a Kelsian-type hierarchical pyramid should be rejected.
The variety of
actors offers unique opportunities for mutual enrichment and synergies. It has
been argued that competition between different jurisdictions is beneficial for the
individual because the various actors tend to enhance protection rather than restricting
it. At
the same time, the large degree of overlap between the various legal
instruments occasionally generates tensions between their respective ultimate
interpreters. Different
approaches are mutually enriching as long as the various actors are conscious
of their respective roles and base their interaction on a set of shared
principles and values.
As we can learn from ancestral Japanese legal
culture, the ultimate aim should be harmony and mutual enrichment for the
benefit of the individual. Already in 604 AD, Prince Shotoku’s (Shôtoku Taïshi - 聖徳太子) Seventeen-Article Constitution (Jushichijo Kenpo
- 憲法十七条) declared that “harmony
should be valued and quarrels should be avoided.”
In practice, we indeed
witness active dialogue and a high degree of consensus among
European and highest
national constitutional and supreme courts. To give just one example, on 19
February 2013, the European Court of Human Rights (“ECtHR”) and the German Federal
Constitutional Court recognised simultaneously, albeit with a different
reasoning, adoption rights of same-sex couples. The ECtHR’s judgment in X
and Others v. Austria[5]
concerned the right of unmarried same-sex couples to second-parent
adoption, while the Constitutional Court’s judgment concerned the bar on
successive adoption by registered civil (same-sex) partners.[6] In
fact, the Constitutional Court went to some extent further than the ECtHR, holding that the
bar on successive adoption by registered civil partners violated the general
principle of equality before the law (article 3 (1) of the Grundgesetz).
European Court of Human Rights
The ECHR is an international treaty providing for
the effective protection of a certain number of rights, not a legal order in
the same sense as that of the European Union. The Convention came into
existence as a means to bind Europe to fundamental principles with a view to
deterring any recurrence of the horrors of the Second World War. However, today, more than sixty years
later, its function cannot be reduced to that sole purpose. As a “first step for the collective enforcement of
certain of the rights stated in the Universal Declaration”,[7] the ECHR constitutes a common “shared view” of European human rights
law, defining “the margin within which
states may opt for different fundamental balances between government and individuals.”[8]
The overall success of the Convention system depends
on the ECtHR’s
recognised authority to define common minimum standards which are effectively
observed by all High Contracting Parties. It is the role of the ECtHR to
interpret the often vague and general Convention provisions and to develop
general principles on how to apply them in concrete cases.
The quality of judges is crucial for the ECtHR to
enjoy such standing and for a consistent and rigorous development of its case
law. Only judges with the necessary breadth and depth of professional
experience can in the eyes of their pairs in supreme and constitutional courts
provide the ECtHR with the required legitimacy to effectively exercise its
functions under the Convention.
In recent years
important measures have been taken to improve the (s)election process. Already
in 2010, the Committee of Ministers created the Advisory Panel of Experts for
Election as Judge to the ECtHR[9]
and in 2012 it adopted Guidelines on the selection of candidates for the post
of judge at the ECtHR. In 2015, the Parliamentary Assembly transformed its Sub-Committee
on the Election of Judges into
a full committee. The creation of the Panel was part of the
implementation of the Interlaken Declaration of 19 February 2010 which had called on the High Contracting
Parties to ensure “full satisfaction of the Convention’s criteria for office
as a judge of the Court, including knowledge of public international law and of
the national legal systems as well as proficiency in at least one official
language.” The
Panel addresses its views primarily to the High Contracting Parties and
functions independently from the PACE. However, by providing that the Panel’s
views are also transmitted to the PACE, resolution CM/Res(2010)26 makes it
clear that the PACE and in particular its Committee on the Election of Judges
should benefit from the Panel’s expertise to the fullest extent possible.
Taking full account of the Panel’s views does not put into question the PACE’s
prerogatives for the election of judges under the Convention. The Panel merely
seeks to ensure that the PACE operates its choice among three candidates who
all fulfil the requirements of article 21
(1)
ECHR.
Despite these
improvements, the (s)election process of ECtHR judges remains a matter of
concern. As one academic has put it, “[t]he combination of high requirements, thorough testing and ultimately
political decision has created a bit of a deadlock… The stated criteria and the
profile of the candidates desired are out of the sync with the procedure that
is supposed to lead to their identification.”[10]
In December
2015, the Steering Committee for Human Rights (“CDDH”) which brings together
governmental experts from all 47 member states, presented a report on the
longer-term future of the ECHR system. The report highlights a
possible review of the election procedure in general and national selection
procedures in particular
as issues for immediate follow-up.[11] This report is currently being considered by the
Committee of Ministers which will have to decide what further measures may be
required in this field.
A major challenge for the ECtHR is to define common minimum standards while
respecting the plurality of national and supranational fundamental rights
provisions. From the intergovernmental conferences on the future of the ECtHR,
held in İzmir (2011), Brighton
(2012) and Brussels
(2015),
a clear message emerged inviting the Court to show self-restraint over issues
best dealt with by national courts and tribunals and democratically elected
legislatures in the member states. The ECtHR must resist the “spider’s web temptation”, the temptation
of pretending to build, on the basis of the ECHR, a complete legal system where
the national legal orders and, in the future, the EU’s supranational legal
order could feel “trapped” or “cornered”.[12]
Protocol no 15 introduces
the
subsidiarity principle and the margin of appreciation doctrine in the
Convention’s preamble,
using the
following wording:
“Affirming
that the High Contracting Parties, in accordance with the principle of
subsidiarity, have the primary responsibility to secure the rights and freedoms
defined in this Convention and the Protocols thereto, and that in doing so they
enjoy a margin of appreciation, subject to the supervisory jurisdiction of the
European Court of Human Rights established by this Convention.” [13]
During the drafting process, the formulation chosen
had been criticised by the ECtHR and NGOs.[14]
In a letter dated 23 November 2012 addressed by the President of the Court
to the Chairman of the CDDH, the ECtHR
urged the CDDH to include the words “as developed in the Court’s case-law”,
considering that without them, the formulation would be “incomplete as a reference to a concept that … varies widely in its relevance
and consequence from one context to another …. The margin of appreciation is not … a given or a constant in every case.”[15] Indeed,
the ECtHR has held that that margin is virtually inexistent when it comes to
certain non-derogable rights such as the right to life, prohibition of torture,
prohibition of slavery and forced labour. Having carefully considered the ECtHR’s
comments, CDDH decided nevertheless by consensus to retain the formulation and
to amend only the explanatory report to reflect the ECtHR’s concerns,
indicating that the preamble paragraph is “consistent
with the doctrine of margin of appreciation as developed by the Court.”[16]
Eventually, both the ECtHR and the PACE gave positive opinions on the draft protocol.
In my view, there is indeed no contradiction in
terms, maybe in emphasis between these two positions. The new preamble
provision expressly recognises, in line with ECtHR case-law, that margin of
appreciation in implementing the Convention goes hand in hand with European
supervision. The
ECtHR has consistently
emphasised
the duty to respect the rights as interpreted by the Court, while the new preamble
provision refers to the margin that states enjoy when securing the rights
effectively at national level. As regards torture and inhuman or degrading treatment or punishment,
the Convention contains certainly
an absolute prohibition, but some margin exists when it comes how to ensure
that this prohibition is effectively secured, in law and practice. Article 3
ECHR does not impose a harmonised standard on how exactly to define torture in
criminal law, on penalties or standards of proof.
Similarly,
when it comes to the weighing of competing
rights
against each other and public interests, different solutions may be tolerable
in the context of different legal systems. The ECtHR must not become a court of fourth instance
substituting its evaluation of competing rights to that of national courts. In
domestic law, the balancing between private rights of different parties is
usually not the task of constitutional or specialised human rights courts, but
a question of the proper application of domestic legislation by ordinary
courts. It is therefore only reasonable if the ECtHR grants a certain margin of
appreciation to domestic courts, which are best placed to fit the Convention
rights into the broader domestic legal framework. It is for the ECtHR to acknowledge the national courts’ margin of appreciation
while ensuring
that solutions found at national level remain within the ‘priority principles’
contained in the Convention itself.[17]
The more the implementation of the Convention is
devolved to the national authorities and courts, the better the ECtHR can focus
on its role as the guardian of a common human rights standard. The Court’s core
business is to deliver judgments on cases raising serious or new human rights issues, according
to the ECtHR’s
former
president Sir Nicolas Bratza “cases
which disclose grave problems of Convention compliance at national level, cases
which take forward our understanding of human rights law, cases where the
dignity and/or physical integrity of persons is at stake, cases which gauge the
health of the rule of law and democracy in our societies.”[18]
Court of Justice of the European Union
While CJEU
judges frequently declare in public lectures “we are not a fundamental rights court”, it is equally true that the
CJEU has “evolved from being a tribunal
concerned primarily with economic matters, to one with a much wider range of
jurisdiction which is now explicitly tasked with enforcing human rights.”[19] In a recent opinion regarding
fundamental-rights guarantees in mutual recognition proceedings, Advocate General
Yves Bot explicitly invited the CJEU to behave as a human rights court.[20]
The CJEU has
developed an impressive body of fundamental rights case-law, starting well
before the proclamation of the EU’s Charter of Fundamental Rights on 18 December
2000. Particularly important examples are recent judgments on data protection, such as data
retention,[21]
search engines (Google case)[22] and safe harbour (Schrems
case).[23]
Declaring
EU legal acts
null and void for violation of privacy and data protection rights is a strong
signal to the EU co-legislators, Council and European Parliament, that the CJEU
takes fundamental rights and the principle of proportionality seriously. Regarding privacy protection, the
cross-fertilisation of the two European Courts is particularly visible.
Following Schrems, the ECtHR adopted a similar reasoning in the Grand
Chamber judgment
Zakharov v Russia, outlawing mass surveillance systems
in even
more explicit terms: “… a system, such as the Russian one,
which enables the secret services and the police to intercept directly the
communications of each and every citizen without requiring them to show an
interception authorisation to the communications service provider, or to anyone
else, is particularly prone to abuse. The need for safeguards against
arbitrariness and abuse appears therefore to be particularly great.”[24]
CJEU fundamental rights’ case-law has in the past drawn
extensively on the ECHR and the case-law of the ECtHR. At the same time, the Court
has consistently emphasised the autonomy and primacy of the EU’s legal system
of human rights protection. In particular since the EU Charter became binding
under EU law, there is a trend in the CJEU case law to focus exclusively on the Charter. The CJEU’s President
Koen Lenaerts described “the Charter as a
shadow of Union law; as an object shapes the contours of his shadow, Union law
defines the contours of the Charter.”[25]
The fact that
the CJEU focuses on the EU Charter is as such not objectionable. It
is after all the EU’s own
fundamental rights catalogue. What can be objected to would be an approach to
treat the EU Charter as the only source of fundamental rights within the EU’s
legal order, to the exclusion of all other rights, be they of international or
national origin. It has been observed that the CJEU interprets fundamental
rights in
isolation from the jurisprudence emerging from other human rights instruments,
including the ECHR.[26] This is rather surprising given that
the Charter itself prescribes that those Charter rights that correspond to
rights guaranteed by the ECHR are to be given the same meaning and scope as
those laid down by the ECHR (article 52 (3) of the Charter). It is encouraging
that the CJEU reaffirmed these important principles in a recent judgment.[27]
The CJEU declines, however, to substantially enter
into arguments drawn from the ECHR and the Strasbourg Court’s case-law, arguing
that the ECHR “does not constitute, as
long as the European Union has not acceded to it, a legal instrument which has
been formally incorporated into European Union law. Consequently, European
Union law does not govern the relations between the ECHR and the legal systems
of the Member States, nor does it determine the conclusions to be drawn by a
national court in the event of conflict between the rights guaranteed by that
convention and a rule of national law.”[28] This approach is in rather sharp contrast to the
ECtHR’s endeavour to choose wherever possible an interpretation of the ECHR
that is not only compatible with, but even conducive to a proper application of
EU law by national authorities. The ECtHR held for example that failure to
provide reasons for refusing to submit a preliminary question to the CJEU
amounted to a violation of article 6 (1) ECHR[29] or refused to
apply the presumption of equivalent protection where national courts failed to
use the preliminary reference procedure.[30]
The CJEU faces a constant challenge to successfully
navigate between the Scylla of a
dysfunctional Union and the Charybdis
of fundamental rights-based centralisation.[31] Developing
even further its autonomous interpretation of fundamental rights, exclusively
based on the EU Charter, while at the same time requiring EU member states to
accept the primacy of EU law over national law, even non-directly effective
secondary EU legislation over national constitutional law, the CJEU risks not only isolating itself from the
ongoing cooperative dialogue
between highest European
and national courts
and tribunals, but also provoking the latters’ resistance.
There is increasingly converging national case law emphasising
the need for respect of constitutional identities in fundamental rights
protection over conflicting
Union law. Examples can be found in decisions of constitutional and supreme
courts of Cyprus, the Czech Republic, Denmark, France, Germany, Ireland, Italy, Latvia, Poland and Spain.[32] For
the first time in its history the UK Supreme Court mentioned explicitly (and in
German!)
the case law of the Bundesverfassungsgericht
on the limits of European integration arguing that “a decision of the Court of Justice should
not be read by a national court in a way that places in question the identity
of the national constitutional order.“[33] Rather than prescribing a harmonised approach, CJEU
case law on fundamental rights “must be
understood in the context of the cooperative relationship which exists between
that Court and a national constitutional court such as the
Bundesverfassungsgericht or a supreme court like this Court.“[34]
In a judgment of 25 March 2015, the Supreme Court added that “unless
the Court of Justice has had conferred upon it under domestic law unlimited as
well as unappealable power to determine and expand the scope of European law,
irrespective of what the Member States clearly agreed, a domestic court must
ultimately decide for itself what is consistent with its own domestic
constitutional arrangements.”[35]
In a judgment of
15 December 2015, the Bundesverfassungsgericht
applied these principles holding that effective fundamental rights protection
under the Basic Law (“Grundgesetz” – “GG”)
may require disrespect of EU law if this is indispensable to protect the
constitutional identity guaranteed by article 79 (3) GG.[36]
The applicant before the Bundesverfassungsgericht,
an US citizen, had been sentenced to 30 years of imprisonment in Italy, in his absence and without proper notice or
representation by a lawyer. The German Higher Regional Court (Oberlandesgericht) was prepared to allow
his surrender from Germany to Italy, relying on a European arrest warrant (EAW)
and considering it to be sufficient that a new evidentiary hearing for him in
Italy is at least not impossible.
The case thus concerned
fundamental rights guarantees in EAW procedures, the very same issue at the
centre of the Melloni judgment
in
which the CJEU ruled that once the EU had adopted a common fundamental rights
standard, EU member states would be no longer entitled to apply their own higher standards, even
when provided for in the constitution, because this would undermine the ‘primacy, unity and effectiveness’ of
EU law.[37]
Did member
states ever intend to give such a far-reaching meaning to the EU Charter? The
Charter itself contains no specific rule about which rights should have
precedence in situations where Charter rights and rights guaranteed under national
constitutions or the ECHR or national apply in parallel.[38] It is
striking that even truly federal states like Austria, Germany, Switzerland or
the United States of America tolerate some flexibility in terms of fundamental
rights standards, without that being considered as a threat to the ‘primacy,
unity and effectiveness’ of the respective federal constitution.
Insofar as the Bundesverfassungsgericht stresses that
it will protect Germany’s constitutional identity, which it considers to be “integrationproof” (integrationsfest), even against conflicting EU law, it sends the
clear message to the CJEU’s that it is not willing to accept unconditional
precedence of EU law to the detriment of core constitutional guarantees. The Bundesverfassungsgericht’s decision is in
line with the Spanish Constitutional Court’s decision in Melloni. The Spanish court eventually lowered the level of
protection of the right to a fair trial, but on the grounds of constitutional law,
highlighting that the CJEU judgment was merely “a very useful reference”, not a binding decision.[39]
To some extent, the Bundesverfassungsgericht
went even further than the Spanish Constitutional Court, relying not only on
procedural, but also on substantial grounds, in this case the principle of
individual guilt (Schuldprinzip).
Under this principle, any criminal sanction presupposes that the offence and
the offender’s guilt are proven in a procedure that complies with the
applicable procedural rules. The principle of individual guilt is rooted in the
guarantee of human dignity enshrined in article 1 (1) GG and must be guaranteed
also in the context of EAW procedures.
The Bundesverfassungsgericht thus reaffirms,
alongside many sister courts all over Europe, the role of constitutional courts
in EU law matters, an attitude which should not be interpreted as a sign of
nationalism. At a time when measures taken at EU level affect more than ever
before human rights (for example in policy fields such as asylum, police
cooperation, data protection, fight against terrorism, migration, or the euro),
it would be paradoxical if those courts were to abdicate their role as
guardians of the national constitution.
It seems that
the CJEU is increasingly aware of the “the federal temptation”, namely the temptation to use fundamental
rights to transform substantially the Union and its legal order into a federal
one by its own and only initiative.[40] Various CJEU judgments, for
example Omega,[41] Ilonka Sayn-Wittgenstein[42] or UPC Telekabel Wien GmbH,[43]
show respect for the plurality of constitutional systems in Europe, developing
ideas quite similar to the ECtHR’s
margin
of appreciation doctrine. In the Omega
case, the CJEU acknowledged explicitly the existence of a large discretion due to
cultural and societal differences in the member states. It held that the German
measure banning the laser sport as a ‘human dignity’ measure and thus limiting ‘freedom
of services’ within the EU, was justified and needed not to correspond to a
conception shared by all member states as regards the precise way in which
fundamental rights could be protected. This is entirely in line with the CJEU case-law
regarding the use by member states of exceptions justifying restrictions to
fundamental freedoms, which the CJEU regards as ‘implementing Union law’ and
thus falling within the scope of application of the EU Charter.[44] In
that way, the CJEU retains overall control over the uniform application of
Union law while resolving potential clashes between jurisdictions through an
agreement “to defer to one another’s decisions, provided those decisions
respect mutually agreed essentials.”[45]
The fact remains, however, that the mere existence
of two different fundamental rights
catalogues, to be interpreted by two distinct courts operating
in very different contexts,
risks undermining
legal certainty. It may ultimately lead to the existence of two sets of
standards in a Europe where membership in the EU and the Council of Europe
increasingly overlaps. The words pronounced by the then President of the ECtHR Luzius Wildhaber on 7 March
2000 in front of the Committee of Ministers of the Council of Europe,
encapsulated the prevailing concern at the time, namely “to avoid a situation in which there are alternative, competing and potentially
conflicting systems of human rights protection both within the Union and in the
greater Europe. The duplication of protection systems runs the risk of
weakening the overall protection offered and undermining legal certainty in
this field.” The Committee of Ministers, on which all EU countries are
represented, accepted this position unreservedly.[46]
Indeed, already then nobody had any doubts about the
EU’s capacity to develop its own fundamental rights catalogue, going even
further in some respects than protection offered under the ECHR. However, “for Europe as a whole … there would also be
a considerable loss. Europe would be split with respect to human rights, most
certainly to the detriment of the non-members of the Union.”[47]
This is why already the Laeken Declaration (2001) and the subsequent EU
Convention (2001-2003) and Intergovernmental Conferences (2003 and 2007)
established a junktim between the
incorporation of the EU Charter into the Treaties and accession of the EU to
the ECHR.
How can Europe be credible in its worldwide defence
and promotion of human rights if it is not even capable of keeping its own
house in order?
EU
accession to the ECHR – squaring the circle?
Following the
entry into force of the Lisbon treaty in December 2010, hopes for a rather
speedy accession process were high. However, on 18 December 2014
the CJEU delivered Opinion 2/13[48] on
the compatibility with EU law of the draft agreement on accession of the
European Union to the Convention for the Protection of Human Rights and
Fundamental Freedoms.[49].
The CJEU concluded that the accession agreement is not compatible with EU law.
While some amendments, required by the CJEU, are rather technical in nature and
may be acceptable, others concern central issues such as the need to coordinate
the EU Charter with the ECHR, EU legislation in the area of justice and home
affairs (“JHA”) or the EU’s common foreign and security policy.
Though it is very encouraging to hear from the
Vice-President of the European Commission that he “passionately believe[s] in the need for the European Union to accede to
the Convention”,[50]
it is equally true that so far the Commission has not been able to present
concrete proposals for the way forward. Governmental experts from all 47
Council of Europe member states therefore concluded in December 2015 in their
report on the longer-term future of the ECHR system, “[a]t this time, it remains to be seen when, how and if accession will
be completed.”[51]
It is quite
surprising to hear from a CJEU judge that “the
accession agreement constitutes a full of improvisation work without any
precedent in international law.”[52] This
agreement had been painstakingly negotiated and approved by experts from 47
European states and the European Commission who were fully aware of the EU and
international law implications. Academic experts generally acknowledge that “[t]he provisions of the Draft Accession
Agreement on attribution and responsibility
are generally in line with the existing case law of the ECtHR and the work of
the ILC on the topic of international responsibility.”[53]
Like in all international negotiations, the solutions eventually found were
sometimes the result of difficult compromises, striking a fair balance between accommodating
“the specific characteristics of the
Union and Union law”[54] and
preserving the essential features of the Convention system, such as the
authority and prerogatives of the ECtHR, the equal treatment of High
Contracting Parties and, last but not least, the subsidiary nature of the
protection mechanism. From the outset, there was agreement between all the
negotiating parties that amendments and adaptations should be limited to what
is strictly necessary for the purpose of the accession of the EU as a nonstate
entity.
What is particularly striking in Opinion 2/13 is the
absence of any argument
referring to the constitutional significance of article 6 (2) TEU which after
all formulates an obligation to accede. Instead, the CJEU
confirms its previous case-law, in particular the above-mentioned Melloni judgment, insisting that ‘the
unity, primacy and effectiveness of EU law’ must not be affected by the EU
accession. As article 53 ECHR allows High Contracting Parties to the ECHR to
apply higher standards of protection than those guaranteed by the ECHR, the
CJEU requires “that provision should be
coordinated with Article 53 of the Charter (…) so that the power granted to
member states by Article 53 of the ECHR is limited — with respect to the rights
recognised by the Charter that correspond to those guaranteed by the ECHR — to that
which is necessary to ensure that the level of protection provided for by the
Charter and the primacy, unity and effectiveness of EU law are not compromised.”[55] This
assertion came as a surprise
even for
many EU
lawyers because it is difficult to understand how ratification of the accession
agreement can resurrect powers that EU member states have already lost under
the EU treaties. Moreover, article 52 ECHR is not about powers or competences.
It is a rule of construction that purports to limit the pre-emptive effect of
the remaining provisions of the Convention. It does not grant the High
Contracting Parties any right they did not already have prior to concluding the
ECHR.
More fundamentally, the very utility of using the
‘high’ and ‘low’, maximal and minimal nomenclature can be questioned in the
context of human rights protection.[56] Human rights entail
choices as to the appropriate balance between the interests of individuals
against those of other individuals or the community. The quantification of
levels of protection based on generally worded provisions of fundamental rights
catalogues proves often difficult. Ronald Dworkin observed pertinently that “it is very difficult to think of liberty as
a commodity.”[57] The
clauses imply that human rights are quantifiable and may easily be assessed in
terms of ‘maximum’ versus ‘minimum’ protection.[58]
A ‘race to the top’, seeking ever higher standards
makes little sense in cases of competing human-rights interests which must be
reconciled, such as freedom of expression versus privacy,[59] the right to
respect the decision to become (or not to become) a parent,[60] or the right to
property versus the right to strike. In such multipolar relations, extending
the protection of one right or attaching more weight to it will inevitably have
the consequence of restricting the right of others. Where competing rights are
at stake, it should be considered to apply the concept of “practical reconciliation” (“praktische Konkordanz”),
originally developed by the German constitutionalist, Konrad Hesse.[61] It seeks to strike
a balance, trying to satisfy competing rights, so that the limitation on the
one right is equal to the limitation on the other, taking into account the
circumstances of each case.
One of the declared purposes of accession is to close
the existing gaps in legal protection by giving European citizens the same
protection vis-à-vis acts of the
Union as they presently enjoy vis-à-vis
all EU member states. In that context, the CJEU’s objection against the ECtHR’s
human rights scrutiny in JHA’s matters appears particularly problematic. The CJEU
argues that such scrutiny would be incompatible with the obligation of mutual
trust between EU member states and accession liable to upset the underlying
balance of the EU to undermine the autonomy of EU law.[62] This
argumentation is questionable even from an EU law perspective.[63]
While the ‘values’ of the EU – which are a condition for EU membership and
disrespect of which can lead to suspension of a member state in serious cases –
include human rights and the rule of law, there is no mention of the primacy of
EU law, of mutual trust in JHA matters, or of divesting any international court
from exercising jurisdiction over EU-related matters.
The underlying assumption that all EU member states
comprehensively ensure respect for human rights needs a reality check. EU
member states are not immune from being found in violation of even the core
human rights such as article 3 ECHR, the prohibition of torture and inhuman and
degrading treatment. In 2015 alone, the ECtHR found 103 violations of article 3
ECHR by EU member states, 61 violations
of article 5 ECHR, and 154 violations of
article 6 ECHR.[64]
Under the EU treaties, mutual recognition is merely
a ‘principle’ to be used to facilitate judicial cooperation among EU member
states. It should not be weighed against, or, even worse, used to escape
compliance with legal obligations to respect fundamental rights under EU
primary law. Respect for fundamental rights constitutes a key component of the
area of freedom, security and justice, as explicitly foreseen by article 67 (1)
TFEU. It is noteworthy that the EU’s own Fundamental Rights Agency advocates the
use of fundamental rights-based refusal grounds in EU legislation providing for
mutual recognition.[65]
Even more significantly, in a recent JHA legal instrument, Directive 2014/41/EU
on the European Investigation Order, non-compliance with fundamental rights was
explicitly provided for as a refusal ground (article 11(1)(f)).
In the N.S. case, the CJEU was prepared to
give precedence to fundamental rights over the obligations of member states to
comply with the provisions of the Dublin II Regulation regarding the return of
asylum seekers to their first country of entry into the EU. The CJEU recognised
that member states must not return asylum seekers when systemic deficiencies in
the asylum procedure and in the reception conditions of the country to which they
would be returned result in a real risk of asylum seekers being subjected to
inhuman or degrading treatment within the meaning of article 4 of the Charter.[66] As
the ECtHR Grand chamber judgment in M.S.S. v Greece and Belgium eleven months earlier,[67] the
CJEU found that there existed such systemic flaws in Greece.
It is highly
significant that the Bundesverfassungsgericht
reached in the EAW case the same conclusion as the ECtHR in
Tarakhel,[68] namely that national authorities have a duty to
ensure in every individual case that the rights of the requested person are
respected.[69] For
national constitutional and supreme courts, it is normal practice to review
whether the unfettered application of ordinary legislation violates fundamental
rights in individual cases. Where necessary, such legislation can be
disregarded or given a restrictive interpretation in compliance with
fundamental rights. This applies not only to cases of systemic or structural,
but also to individual instances of human rights violations. Two cases
currently pending before the CJEU again address the question to what extent fundamental
rights may be opposed to requests for surrender under the EAW.[70] Let
us hope that judicial dialogue will bear its fruits.
These
judgments
show at the same time that even without accession JHA issues are already before
the ECtHR. The ECtHR will
soon deliver a Grand Chamber judgment in a case concerning the recognition of
civil judgments within the EU.[71]
The
challenge to the conception of mutual trust in JHA matters could hardly become
more severe than it already is. Rather on the contrary, accession and a strong
co-respondent mechanism provide the possibility for comprehensive external
scrutiny of the JHA system as a whole, with the active participation of
protagonists from both the supranational and the national levels, thereby
enhancing both trust in the various mutual recognition systems and human rights
protection for the indviduals concerned. Exempting JHA matters from the scope
of the external control would be a cut-back of existing ECHR jurisdiction in
one of the core areas where effective fundamental rights protection is most needed.
Conclusion
The aim and
purpose of fundamental rights is not to foster harmonisation or uniformity;
they are about the empowerment of individuals and the protection of liberty
primarily against state authorities. The European multilevel system of rights
protection is composed of layers of protection, that complement each other,
instead of layers that are neatly separated according to their origin
(constitutional, EU or international). Uniformity is neither required nor
desirable in a Europe composed of nation states, each of which with its own
distinctive traditions of fundamental rights protection.
What is required
is consensus on certain minimum standards which apply to everybody by virtue of being human. They are the rights of every
human being, virtuous and unvirtuous alike. The European system will only
remain credible if it rests on mutual respect and trust, good will and
cooperation. For a mobile to work, the different parts of the system have to go
about their task with sensitivity in order to preserve the overall balance. All
this requires not only sincere dialogue and willingness to engage substantially
and transparently with the arguments used by ‘other’ courts, but also the
recognition of certain common (minimum) standards which transcend both national
and supranational legal orders.
Barnard & Peers: chapter 9
[1]
Any views expressed in
this article are those of the author and do not necessarily reflect the
official position of the Council of Europe.
[2] P. Cruz
Villalón ‘Rights
in Europe – The Crowded House’ King’s College London – Working Paper 2012.
[3] A.
Voßkuhle ‘Pyramid or Mobile? – Human Rights Protection by the European
Constitutional Courts’ Opening of the Judicial Year 2014 at the European Court
of Human Rights Strasbourg, 31 January 2014.
[4] M.P.
Maduro ‘Contrapunctual Law: Europe's Constitutional Pluralism in Action’ in N.
Walker (ed) Sovereignty in Transition
(Oxford, Hart, 2003), 501-537.
[5] X. and Others v. Austria, judgment (GC)
of 19 February 2013 (19010/07).
[6]
BVerfG, 19 February 2013 - 1 BvL 1/11, 1 BvR 3247/09.
[7] ECHR,
preamble para. 4.
[8]
J.H.H. Weiler
‘Fundamental Rights and Fundamental Boundaries: On Standards and Values in the
Protection of Human Rights’ (1995), reprinted in J. H. H. Weiler The Constitution of Europe: do the New
Clothes Have an Emperor? And other essays on European integration
(Cambridge University Press 1999), 107-116.
[9]
CM/Res(2010)26 of 10 November 2010.
[10]
M Bobek ‘Epilogue’ in: M. Bobek (ed.) Selecting
Europe's Judges - A Critical Review
of the Appointment Procedures to the European Courts (Oxford University Press
2015), at 305.
[13]
Article 1 of Protocol no. 15 amending the Convention for the Protection of
Human Rights and Fundamental Freedoms. The Protocol will enter into force once it has been ratified by all
High Contracting Parties.
[14] For
the NGO position, see Joint Preliminary Comments on the drafting of Protocols
15 and 16 to the ECHR, doc. DHGDR(2012)008. See comprehensively on the drafting
process of Protocols nos. 15 and 16: D. Milner ‘Protocols no. 15 and 16 to the
European Convention on Human Rights in the context of the perennial process of
reform: a long and winding road’ 17 ZEuS 20 et seq. (2014).
[15] See
Comment from the European Court of Human Rights on the proposed amendment to
the Preamble of the ECHR, attached to a letter from the Court President to the
CDDH Chairperson of 23/11/2012, doc. #4160804.
[16]
Explanatory report to Protocol No. 15 amending the Convention for the
Protection of Human Rights and Fundamental Freedoms (CETS 213), para. 7.
[17] See S. Greer The European Convention on Human Rights.
Achievements, Problems and Prospects (Cambridge University Press 2006), in particular 193 et seq.
and 323 et seq.
[18]
Intervention before the Committee of Ministers, at the eve of the Brighton
conference, on 23 February 2012.
[19] G.
De Búrca ‘After the EU Charter of Fundamental Rights: The Court of Justice as a
Human Rights Adjudicator?’ 20 Maastricht Journal of European and Comparative
Law (2013) 168 (171).
[21]
Joined Cases C-293/12 and C-594/12, Digital
Rights Ireland and Seitlinger and Others, 8 April 2014.
[22] Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos
(13 May 2014).
[23]
Case C‑362/14,
Schrems v Data Protection Commissioner,
Digital Rights Ireland Ltd (6 October 2015).
[24]
Judgment of 4 December 2015, para. 270.
[25] K. Lenaerts ‘In Vielfalt geeint –
Grundrechte als Basis des europäischen Integrationsprozesses’ 42 EuGRZ 353, at
354 (2015): „… handelt es sich bei der Charta um den Schatten des Unionsrechts.
So wie ein Gegenstand die Konturen seines Schattens formt, bestimmt auch das
Unionsrecht die ,Konturen‘ der Charta.“
[26] G. De Búrca op. cit. supra note 19, at 171.
[27] CJEU, C-601/15 PPU, J.N. v Staatsscecretaris van Veiligheid en
Justitie (15 February 2016). See also J.
Kokott & C. Sobotta ‘Protection of Fundamental Rights in the European
Union: On the Relationship between EU Fundamental Rights, the European Convention
and National Standards of Protection’ 34 Yearbook of European Law 60-73 (2015)
who argue at 73 that the “jurisprudence of the ECtHR in Luxembourg has been, and continues to be,
extremely important for the fundamental rights jurisprudence of the CJEU in
Luxembourg. Strasbourg provides the most important guidance in this area, and there
are very strong incentives for Luxembourg to avoid any potential disagreement
on fundamental rights.“
[28] Case
C-617/10, Åklagaren v. Åkerberg Fransson (26
February 2013), para. 44. See also C-571/10, Kamberaj (24 April 2012), para. 62; C‑398/13 P, Inuit Tapiriit Kanatami/Commission, para.
45 (3 October 2013).
[31] A. von
Bogdandy ‘Protecting the essence of fundamental rights against EU Member
states’ 49 Common Market Law Review, No. 2 April 2012, 519.
[32]
See the references in J. Nergelius ‘The
accession of the EU to the European Convention on Human Rights. A critical
analysis of the Opinion of the European Court of Justice’ SIEPS 2015:3
(June 2015) and the German
Federal Constitutional Court’s Order of 15 December 2015 - 2 BvR 2735/14, marginal note 47.
[33] HS2 Action Alliance Ltd, R v The Secretary of State for Transport &
Anor [2014] UKSC 3 (22 January 2014) citing the German
Federal Constitutional Court judgment of 24 April 2013 on the Counter-Terrorism
Database Act, 1 BvR 1215/07, para 91: „Im
Sinne eines kooperativen Miteinanders zwischen dem Bundesverfassungsgericht und
dem Europäischen Gerichtshof ... darf dieser Entscheidung keine Lesart
unterlegt werden, nach der diese offensichtlich als Ultra-vires-Akt zu
beurteilen wäre oder Schutz und Durchsetzung der mitgliedstaatlichen
Grundrechte in einer Weise gefährdete ..., dass dies die Identität der durch
das Grundgesetz errichteten Verfassungsordnung in Frage stellte.“
[34]
Ibid.
[35]
Pham v Secretary of State for the Home
Department [2015] UKSC 19 (25 March 2015).
[37]
C-399/11 Stefano Melloni v Ministerio Fiscal (26 February 2013). See
also C-206/13 Cruciano Siragusa v Regione Sicilia –
Soprintendenza Beni Culturali e Ambientali di Palermo (6 March 2013).
[38] F. Kirchhof ‘Nationale Grundrechte und
Unionsgrundrechte: Die Wiederkehr der Frage eines Anwendungsvorrangs unter
anderer Perspektive’ (2014) Neue Zeitschrift für Verwaltungsrecht 1537-1541.
[40] Cruz Villalón, op. cit. supra note 2, at 11
[41] Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin
der Bundesstadt Bonn [2004] ECR I 09609.
[42] C-112/00, Schmidberger v Österreich,
[2003] ECR I 05659; C-36/02, Omega Spielhallen, [2004] ECR I 09609; Case
C-438/05 Viking [2007] ECR
I-10779-10840; Case C- 341/05 Laval
[2007] ECR I-11767-11894; Case C-208/09 Ilonka
Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] OJ 2011/C 63/06.
[43] C - 314/12, UPC Telekabel Wien GmbH (27 March 2014).
[45] C.
F. Sabel and O. Gerstenberg ‘Constitutionalising an Overlapping Consensus: The ECJ
and the Emergence of a Coordinate Constitutional Order’ (2010) ELJ, 511 (512).
[46] See
Committee of Ministers’ reply to Parliamentary Assembly Recommendation
1439 (2000), adopted on 31 May 2000 at the 711th meeting of the
Ministers’ Deputies, HRLJ 2000, 188.
[47] H. G. Schermers ‘Editorial’ 35
Common Market Law Review 6 (1998).
[48]
Opinion 2/13 (Full Court) (18 December 2014); this Opinion should be read together
with the comprehensive ‘View’ of Advocate General J. Kokott (13 June 2014).
[49]
The text of the draft accession agreement its explanatory report as well as
related instruments had been
agreed at negotiators’ level on 13 April 2013 and can be consulted at:
<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports_en.asp>.
On background and initial stages of the negotiations see J. Polakiewicz ‘The
European Union’s Accession to the European Convention on Human Rights’ in W.
Meng/G. Ress/T. Stein Europäische
Integration und Globalisierung (Nomos Baden-Baden 2011), 375-391.
[50]
Intervention on 26 March 2015 in Brussels, at the ‘High-Level Conference on the
Implementation of the European Convention on Human Rights: our shared
responsibility’, Proceedings/Actes,
at 28.
[51] Para. 177.
[52] J Malinovský ‘L’adhésion de l’U.E. a la
Convention européenne des Droits de lHomme’119 RGDIP 705, at 739 (2015): “L’Accord
d’adhésion constitue une oeuvre pleine d’improvisation, dépourvue de précédents
en droit international, qui, partant, risque d’avoir des conséquences imprévisibles.”
[53]
SHARES Briefing Paper – A New Framework for Allocating International
Responsibility: the EU Accession to the European Convention on Human Rights
(2014), at 18, available
at www.sharesproject.nl.
[55] CJEU Opinion 2/13, para 189.
[57] R. Dworkin Taking Rights
Seriously (Harvard University Press 1977), 270.
[58] See A-M Widmann ‘Article 53: Undermining the
Impact of the Charter of Fundamental Rights’ 8 Columbia Journal of European Law 342-358 (2002).
[59] See Caroline von
Hannover v Germany, no. 59320/00, judgment of 24 June 2004; Von Hannover
v Germany (no 2) [GC], nos. 40660/08 and 60641/08, judgment of 7 February 2012.
[60] See Evans v UK [GC],
no. 6339/05, judgment of 10 April 2007, § 73: “The
dilemma central to the present case is that it involves a conflict between the
Article 8 rights of two private individuals: the applicant and J. Moreover,
each person's interest is entirely irreconcilable with the other's, since if
the applicant is permitted to use the embryos, J will be forced to become a
father, whereas if J's refusal or withdrawal of consent is upheld, the
applicant will be denied the opportunity of becoming a genetic parent. In the
difficult circumstances of this case, whatever solution the national
authorities might adopt would result in the interests of one or the other
parties to the IVF treatment being wholly frustrated.”
[61] K. Hesse Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (Müller,
Heidelberg, 20th edition 1999), marginal note 75.
[62]
CJEU Opinion 2/13, para. 194.
[63]
On the following see already See J. Polakiewicz ‘EU law and the ECHR: Will the
European Union’s accession square the circle?’ European Human Rights Law
Review (2013), 592-605.
[66] Joined cases C-411/10 and
C-493/10 N.S. (21 December 2011), para. 94.
[67] Application no 30696/09,
judgment of 21 January 2011.
[68]
Tarakhel v Switzerland, no.
29217/12, judgment of 4 November 2014.
[71]
Avotiņš v. Latvia (no. 17502/07), Chamber judgment of 25 February
2015. The Grand Chamber hearing took place on 8 April 2015 with the European Commission having been authorised in accordance
with article 36 (2) ECHR to participate as a ‘third-party’.
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