Europe’S Multi-Layered Human Rights Protection System: Challenges, Opportunities In Addition To Risks
November 25, 2018
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Lecture at Waseda University Tokyo, xiv March 2016
Jörg Polakiewicz
Professor at the Europainstitut of the University of Saarbrücken and
Director of Legal Advice together with Public International Law (Legal Adviser), Council of Europe.[1]
Professor at the Europainstitut of the University of Saarbrücken and
Baca Juga
Introduction
It is a item pleasance for me to speak today at the prestigious Waseda University inwards Tokyo to distinguished scholars from all over Japan. I would similar to give thank y'all inwards item Professor Koji Tonami together with my old friend Professor Kaoru Obata without whose back upwardly my participation today would non conduct hold been possible.
Coming to Japan, I am e'er impressed yesteryear the depth together with breadth of knowledge amongst y'all well-nigh our complex scheme of fundamental rights protection. It is a genuinely “crowded house”.[2] Citizens together with legal practitioners are confronted with dissimilar binding texts to hold out applied sometimes simultaneously, using different standards, structures, terminology together with qualifications. These are domestic law, including inwards most cases the national constitution’s fundamental rights, the European Convention on Human Rights (“ECHR”) together with its protocols as good as European Union law, inwards item the European Union Charter of Fundamental Rights.
How to best depict the resulting complexity? At the opening of the judicial yr on 31 Jan 2014 inwards Strasbourg, the President of the High German Bundesverfassungsgericht, Andreas Voßkuhle compared the fragile residual betwixt the diverse institutions to a mobile, a kinetic sculpture consisting of an ensemble of balanced parts that tin displace but are connected yesteryear strings or wire.[3] Another metaphor uses the musical counterpoint, the human relationship betwixt voices that are interdependent harmonically together with yet are independent inwards musical rhythm together with contour.[4] In whatsoever case, the thought of a Kelsian-type hierarchical pyramid should hold out rejected.
The diversity of actors offers unique opportunities for mutual enrichment together with synergies. It has been argued that contest betwixt dissimilar jurisdictions is beneficial for the private because the diverse actors tend to heighten protection rather than restricting it. At the same time, the large grade of overlap betwixt the diverse legal instruments occasionally generates tensions betwixt their respective ultimate interpreters. Different approaches are mutually enriching as long as the diverse actors are witting of their respective roles together with base of operations their interaction on a set of shared principles together with values.
As nosotros tin acquire from ancestral Japanese legal culture, the ultimate aim should hold out harmony together with mutual enrichment for the do goodness of the individual. Already inwards 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 hold out valued together with quarrels should hold out avoided.”
In practice, nosotros indeed witness active dialogue and a high grade of consensus amongst European and highest national constitutional together with supreme courts. To give just 1 example, on xix Feb 2013, the European Court of Human Rights (“ECtHR”) and the High German Federal Constitutional Court recognised simultaneously, albeit with a dissimilar reasoning, adoption rights of same-sex couples. The ECtHR’s judgment inwards X together with Others v. Austria[5] concerned the correct of single same-sex couples to second-parent adoption, spell the Constitutional Court’s judgment concerned the bar on successive adoption yesteryear 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 yesteryear registered civil partners violated the full general regulation 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 sure number of rights, non a legal fellowship inwards the same feel as that of the European Union. The Convention came into existence as a agency to bind Europe to fundamental principles with a watch to deterring whatsoever recurrence of the horrors of the Second World War. However, today, to a greater extent than than 60 years later, its business office cannot hold out reduced to that sole purpose. As a “first stride for the collective enforcement of sure of the rights stated inwards the Universal Declaration”,[7] the ECHR constitutes a mutual “shared view” of European human rights law, defining “the margin inside which states may opt for dissimilar fundamental balances betwixt regime together with individuals.”[8]
The overall success of the Convention scheme depends on the ECtHR’s recognised say-so to define mutual minimum standards which are effectively observed yesteryear all High Contracting Parties. It is the role of the ECtHR to translate the often vague together with full general Convention provisions together with to develop full general principles on how to apply them inwards concrete cases.
The lineament of judges is crucial for the ECtHR to savour such standing together with for a consistent together with rigorous evolution of its instance law. Only judges with the necessary breadth together with depth of professional person experience tin inwards the eyes of their pairs inwards supreme together with constitutional courts supply the ECtHR with the required legitimacy to effectively exercise its functions nether the Convention.
In recent years of import measures conduct hold been taken to improve the (s)election process. Already inwards 2010, the Committee of Ministers created the Advisory Panel of Experts for Election as Judge to the ECtHR[9] together with inwards 2012 it adopted Guidelines on the selection of candidates for the post service of justice at the ECtHR. In 2015, the Parliamentary Assembly transformed its Sub-Committee on the Election of Judges into a total committee. The creation of the Panel was portion 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 business office as a justice of the Court, including knowledge of world international law together with of the national legal systems as good as proficiency inwards at to the lowest degree 1 official language.” The Panel addresses its views primarily to the High Contracting Parties together with functions independently from the PACE. However, yesteryear providing that the Panel’s views are also transmitted to the PACE, resolution CM/Res(2010)26 makes it clear that the PACE together with inwards item its Committee on the Election of Judges should do goodness from the Panel’s expertise to the fullest extent possible. Taking total concern human relationship of the Panel’s views does non lay into enquiry the PACE’s prerogatives for the election of judges nether the Convention. The Panel only seeks to ensure that the PACE operates its choice amongst 3 candidates who all fulfil the requirements of article 21 (1) ECHR.
Despite these improvements, the (s)election physical care for of ECtHR judges remains a affair of concern. As 1 academic has lay it, “[t]he combination of high requirements, thorough testing together with ultimately political determination has created a fleck of a deadlock… The stated criteria together with the profile of the candidates desired are out of the sync with the physical care for that is supposed to Pb to their identification.”[10]
In Dec 2015, the Steering Committee for Human Rights (“CDDH”) which brings together governmental experts from all 47 fellow member states, presented a study on the longer-term futurity of the ECHR system. The study highlights a possible review of the election physical care for inwards full general together with national selection procedures inwards particular as issues for immediate follow-up.[11] This study is currently beingness considered yesteryear the Committee of Ministers which volition conduct hold to create upwardly one's hear what farther measures may hold out required inwards this field.
A major challenge for the ECtHR is to define common minimum standards spell respecting the plurality of national together with supranational fundamental rights provisions. From the intergovernmental conferences on the futurity of the ECtHR, held inwards İzmir (2011), Brighton (2012) together with Brussels (2015), a clear message emerged inviting the Court to demonstrate self-restraint over issues best dealt with yesteryear national courts together with tribunals together with democratically elected legislatures inwards the fellow member states. The ECtHR must resist the “spider’s spider web temptation”, the temptation of pretending to build, on the ground of the ECHR, a consummate legal scheme where the national legal orders and, inwards the future, the EU’s supranational legal fellowship could experience “trapped” or “cornered”.[12]
Protocol no xv introduces the subsidiarity regulation together with the margin of appreciation doctrine inwards the Convention’s preamble, using the next wording:
“Affirming that the High Contracting Parties, inwards accordance with the regulation of subsidiarity, conduct hold the primary responsibleness to secure the rights together with freedoms defined inwards this Convention together with the Protocols thereto, together with that inwards doing so they savour a margin of appreciation, land of study to the supervisory jurisdiction of the European Court of Human Rights established yesteryear this Convention.” [13]
During the drafting process, the formulation chosen had been criticised yesteryear the ECtHR together with NGOs.[14] In a alphabetic character dated 23 November 2012 addressed yesteryear the President of the Court to the Chairman of the CDDH, the ECtHR urged the CDDH to include the words “as developed inwards the Court’s case-law”, considering that without them, the formulation would hold out “incomplete as a reference to a concept that … varies widely inwards its relevance together with lawsuit from 1 context to some other …. The margin of appreciation is non … a given or a constant inwards every case.”[15] Indeed, the ECtHR has held that that margin is virtually inexistent when it comes to sure non-derogable rights such as the correct to life, prohibition of torture, prohibition of slavery together with forced labour. Having carefully considered the ECtHR’s comments, CDDH decided nevertheless yesteryear consensus to retain the formulation together with to amend only the explanatory study to reverberate the ECtHR’s concerns, indicating that the preamble paragraph is “consistent with the doctrine of margin of appreciation as developed yesteryear the Court.”[16] Eventually, both the ECtHR together with the PACE gave positive opinions on the draft protocol.
In my view, at that spot is indeed no contradiction inwards terms, perhaps inwards emphasis betwixt these 2 positions. The novel preamble provision expressly recognises, inwards job with ECtHR case-law, that margin of appreciation inwards implementing the Convention goes paw inwards paw with European supervision. The ECtHR has consistently emphasised the duty to observe the rights as interpreted yesteryear the Court, spell the novel preamble provision refers to the margin that states savour when securing the rights effectively at national level. As regards torture together with inhuman or degrading handling 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, inwards law together with practice. Article 3 ECHR does non impose a harmonised touchstone on how exactly to define torture inwards criminal law, on penalties or standards of proof.
Similarly, when it comes to the weighing of competing rights against each other together with world interests, dissimilar solutions may hold out tolerable inwards the context of dissimilar legal systems. The ECtHR must non acquire a courtroom of 4th instance substituting its evaluation of competing rights to that of national courts. In domestic law, the balancing betwixt private rights of dissimilar parties is commonly non the chore of constitutional or specialised human rights courts, but a enquiry of the proper application of domestic legislation yesteryear ordinary courts. It is thence only reasonable if the ECtHR grants a sure margin of appreciation to domestic courts, which are best placed to agree the Convention rights into the broader domestic legal framework. It is for the ECtHR to acknowledge the national courts’ margin of appreciation spell ensuring that solutions found at national flat rest inside the ‘priority principles’ contained inwards the Convention itself.[17]
The to a greater extent than the implementation of the Convention is devolved to the national authorities together with courts, the ameliorate the ECtHR tin focus on its role as the guardian of a mutual human rights standard. The Court’s pith concern 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 reveal grave problems of Convention compliance at national level, cases which conduct forwards our understanding of human rights law, cases where the dignity and/or physical integrity of persons is at stake, cases which approximate the wellness of the dominion of law together with republic inwards our societies.”[18]
Court of Justice of the European Union
While CJEU judges oft declare inwards world lectures “we are non a fundamental rights court”, it is as truthful that the CJEU has “evolved from beingness a tribunal concerned primarily with economical matters, to 1 with a much wider hit of jurisdiction which is at nowadays explicitly tasked with enforcing human rights.”[19] In a recent sentiment regarding fundamental-rights guarantees inwards mutual recognition proceedings, Advocate General Yves Bot explicitly invited the CJEU to comport as a human rights court.[20]
The CJEU has developed an impressive trunk of fundamental rights case-law, starting good before the announcement of the EU’s Charter of Fundamental Rights on 18 December 2000. Particularly of import examples are recent judgments on data protection, such as data retention,[21] search engines (Google case)[22] together with rubber harbour (Schrems case).[23] Declaring European Union legal acts nil together with void for violation of privacy together with information protection rights is a strong signal to the European Union co-legislators, Council together with European Parliament, that the CJEU takes fundamental rights together with the regulation of proportionality seriously. Regarding privacy protection, the cross-fertilisation of the 2 European Courts is peculiarly visible. Following Schrems, the ECtHR adopted a similar reasoning inwards the Grand Chamber judgment Zakharov v Russia, outlawing majority surveillance systems in even to a greater extent than explicit terms: “… a system, such as the Russian one, which enables the cloak-and-dagger services together with the police push clit to intercept straight the communications of each together with every citizen without requiring them to demonstrate an interception authorisation to the communications service provider, or to anyone else, is peculiarly prone to abuse. The demand for safeguards against arbitrariness together with abuse appears thence to hold out peculiarly great.”[24]
CJEU fundamental rights’ case-law has inwards the yesteryear drawn extensively on the ECHR together with the case-law of the ECtHR. At the same time, the Court has consistently emphasised the autonomy together with primacy of the EU’s legal scheme of human rights protection. In item since the European Union Charter became binding nether European Union law, at that spot is a tendency inwards the CJEU instance 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 European Union Charter is as such non objectionable. It is after all the EU’s ain fundamental rights catalogue. What tin hold out objected to would hold out an approach to care for the European Union Charter as the only source of fundamental rights inside the EU’s legal order, to the exclusion of all other rights, hold out 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 yesteryear the ECHR are to hold out given the same pregnant together with orbit as those set downwards yesteryear the ECHR (article 52 (3) of the Charter). It is encouraging that the CJEU reaffirmed these of import principles inwards a recent judgment.[27]
The CJEU declines, however, to substantially acquire into into arguments drawn from the ECHR together with the Strasbourg Court’s case-law, arguing that the ECHR “does non constitute, as long as the European Union has non acceded to it, a legal musical instrument which has been formally incorporated into European Union law. Consequently, European Union law does non regulation the relations betwixt the ECHR together with the legal systems of the Member States, nor does it determine the conclusions to hold out drawn yesteryear a national courtroom inwards the lawsuit of conflict betwixt the rights guaranteed yesteryear that convention together with a dominion of national law.”[28] This approach is inwards rather abrupt contrast to the ECtHR’s endeavor to conduct wherever possible an interpretation of the ECHR that is non only compatible with, but fifty-fifty conducive to a proper application of European Union law yesteryear national authorities. The ECtHR held for instance that failure to supply reasons for refusing to submit a preliminary enquiry 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 utilisation the preliminary reference procedure.[30]
The CJEU faces a constant challenge to successfully navigate betwixt the Scylla of a dysfunctional Union together with the Charybdis of fundamental rights-based centralisation.[31] Developing fifty-fifty farther its autonomous interpretation of fundamental rights, exclusively based on the European Union Charter, spell at the same fourth dimension requiring European Union fellow member states to conduct the primacy of European Union law over national law, fifty-fifty non-directly effective secondary European Union legislation over national constitutional law, the CJEU risks non only isolating itself from the ongoing cooperative dialogue betwixt highest European together with national courts together with tribunals, but also provoking the latters’ resistance.
There is increasingly converging national case law emphasising the demand for observe of constitutional identities inwards fundamental rights protection over conflicting Union law. Examples tin hold out found inwards decisions of constitutional together with supreme courts of Cyprus, the Czech Republic, Denmark, France, Germany, Ireland, Italy, Latvia, Poland together with Spain.[32] For the outset fourth dimension inwards its history the U.K. Supreme Court mentioned explicitly (and inwards German!) the instance law of the Bundesverfassungsgericht on the limits of European integration arguing that “a determination of the Court of Justice should non hold out read yesteryear a national courtroom inwards a way that places inwards enquiry the identity of the national constitutional order.“[33] Rather than prescribing a harmonised approach, CJEU instance law on fundamental rights “must hold out understood inwards the context of the cooperative human relationship which exists betwixt that Court together with a national constitutional courtroom such as the Bundesverfassungsgericht or a supreme courtroom similar 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 nether domestic law unlimited as good as unappealable ability to determine together with expand the orbit of European law, irrespective of what the Member States clearly agreed, a domestic courtroom must ultimately create upwardly one's hear for itself what is consistent with its ain domestic constitutional arrangements.”[35]
In a judgment of xv Dec 2015, the Bundesverfassungsgericht applied these principles holding that effective fundamental rights protection nether the Basic Law (“Grundgesetz” – “GG”) may require disrespect of European Union law if this is indispensable to protect the constitutional identity guaranteed yesteryear article 79 (3) GG.[36] The applicant before the Bundesverfassungsgericht, an United States of America citizen, had been sentenced to thirty years of imprisonment inwards Italy, in his absence together with without proper notice or representation yesteryear a lawyer. The High German Higher Regional Court (Oberlandesgericht) was prepared to allow his give upwardly from Federal Republic of Federal Republic of Germany to Italy, relying on a European arrest warrant (EAW) together with considering it to hold out sufficient that a novel evidentiary hearing for him inwards Italy is at to the lowest degree non impossible.
The instance thus concerned fundamental rights guarantees inwards EAW procedures, the real same number at the centre of the Melloni judgment in which the CJEU ruled that in 1 lawsuit the European Union had adopted a mutual fundamental rights standard, European Union fellow member states would hold out no longer entitled to apply their ain higher standards, fifty-fifty when provided for inwards the constitution, because this would undermine the ‘primacy, unity together with effectiveness’ of European Union law.[37]
Did fellow member states ever intend to give such a far-reaching pregnant to the European Union Charter? The Charter itself contains no specific dominion well-nigh which rights should conduct hold precedence inwards situations where Charter rights together with rights guaranteed nether national constitutions or the ECHR or national apply inwards parallel.[38] It is hitting that fifty-fifty genuinely federal states similar Austria, Germany, Switzerland or the U.S. of America tolerate some flexibility inwards price of fundamental rights standards, without that beingness considered as a threat to the ‘primacy, unity together with effectiveness’ of the respective federal constitution.
Insofar as the Bundesverfassungsgericht stresses that it volition protect Germany’s constitutional identity, which it considers to hold out “integrationproof” (integrationsfest), fifty-fifty against conflicting European Union law, it sends the clear message to the CJEU’s that it is non willing to conduct unconditional precedence of European Union law to the detriment of pith constitutional guarantees. The Bundesverfassungsgericht’s determination is inwards job with the Castilian Constitutional Court’s determination inwards Melloni. The Castilian courtroom eventually lowered the flat of protection of the correct to a fair trial, but on the grounds of constitutional law, highlighting that the CJEU judgment was only “a real useful reference”, non a binding decision.[39] To some extent, the Bundesverfassungsgericht went fifty-fifty farther than the Castilian Constitutional Court, relying non only on procedural, but also on substantial grounds, inwards this instance the regulation of private guilt (Schuldprinzip). Under this principle, whatsoever criminal sanction presupposes that the offence together with the offender’s guilt are proven inwards a physical care for that complies with the applicable procedural rules. The regulation of private guilt is rooted inwards the guarantee of human dignity enshrined inwards article 1 (1) GG together with must hold out guaranteed also inwards the context of EAW procedures.
The Bundesverfassungsgericht thus reaffirms, amongst many sis courts all over Europe, the role of constitutional courts inwards European Union law matters, an mental attitude which should non hold out interpreted as a sign of nationalism. At a fourth dimension when measures taken at European Union flat impact to a greater extent than than ever before human rights (for instance inwards policy fields such as asylum, police push clit cooperation, information protection, struggle against terrorism, migration, or the euro), it would hold out 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 utilisation fundamental rights to transform substantially the Union together with its legal fellowship into a federal 1 yesteryear its ain together with only initiative.[40] Various CJEU judgments, for instance Omega,[41] Ilonka Sayn-Wittgenstein[42] or UPC Telekabel Wien GmbH,[43] demonstrate observe for the plurality of constitutional systems inwards 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 together with societal differences inwards the fellow member states. It held that the High German stair out banning the Light Amplification by Stimulated Emission of Radiation sport as a ‘human dignity’ stair out together with thus limiting ‘freedom of services’ inside the EU, was justified together with needed non to correspond to a invention shared yesteryear all fellow member states as regards the precise way inwards which fundamental rights could hold out protected. This is solely inwards job with the CJEU case-law regarding the utilisation yesteryear fellow member states of exceptions justifying restrictions to fundamental freedoms, which the CJEU regards as ‘implementing Union law’ together with thus falling inside the orbit of application of the European Union Charter.[44] In that way, the CJEU retains overall command over the uniform application of Union law spell resolving potential clashes betwixt jurisdictions through an understanding “to defer to 1 another’s decisions, provided those decisions observe mutually agreed essentials.”[45]
The fact remains, however, that the mere existence of 2 dissimilar fundamental rights catalogues, to hold out interpreted yesteryear 2 distinct courts operating inwards real dissimilar contexts, risks undermining legal certainty. It may ultimately Pb to the existence of 2 sets of standards inwards a Europe where membership inwards the European Union together with the Council of Europe increasingly overlaps. The words pronounced yesteryear the so President of the ECtHR Luzius Wildhaber on 7 March 2000 inwards front end of the Committee of Ministers of the Council of Europe, encapsulated the prevailing concern at the time, namely “to avoid a province of affairs inwards which at that spot are alternative, competing together with potentially conflicting systems of human rights protection both inside the Union together with inwards the greater Europe. The duplication of protection systems runs the risk of weakening the overall protection offered together with undermining legal certainty inwards this field.” The Committee of Ministers, on which all European Union countries are represented, accepted this seat unreservedly.[46]
Indeed, already so nobody had whatsoever doubts well-nigh the EU’s capacity to develop its ain fundamental rights catalogue, going fifty-fifty farther inwards some respects than protection offered nether the ECHR. However, “for Europe as a whole … at that spot would also hold out a considerable loss. Europe would hold out dissever with observe to human rights, most sure as shooting to the detriment of the non-members of the Union.”[47]
This is why already the Laeken Declaration (2001) together with the subsequent European Union Convention (2001-2003) together with Intergovernmental Conferences (2003 together with 2007) established a junktim betwixt the incorporation of the European Union Charter into the Treaties together with accession of the European Union to the ECHR.
How tin Europe hold out credible inwards its worldwide defense strength together with advertisement of human rights if it is non fifty-fifty capable of keeping its ain theatre inwards order?
EU accession to the ECHR – squaring the circle?
Following the entry into strength of the Lisbon treaty inwards Dec 2010, hopes for a rather speedy accession physical care for were high. However, on xviii Dec 2014 the CJEU delivered Opinion 2/13[48] on the compatibility with European Union law of the draft understanding on accession of the European Union to the Convention for the Protection of Human Rights together with Fundamental Freedoms.[49]. The CJEU concluded that the accession understanding is non compatible with European Union law. While some amendments, required yesteryear the CJEU, are rather technical inwards nature together with may hold out acceptable, others concern cardinal issues such as the demand to coordinate the European Union Charter with the ECHR, European Union legislation inwards the expanse of justice together with domicile affairs (“JHA”) or the EU’s mutual unusual together with safety policy.
Though it is real encouraging to hear from the Vice-President of the European Commission that he “passionately believe[s] inwards the demand for the European Union to accede to the Convention”,[50] it is as truthful that so far the Commission has non been able to nowadays concrete proposals for the way forward. Governmental experts from all 47 Council of Europe fellow member states thence concluded inwards Dec 2015 inwards their study on the longer-term futurity of the ECHR system, “[a]t this time, it remains to hold out seen when, how together with if accession volition hold out completed.”[51]
It is quite surprising to hear from a CJEU justice that “the accession understanding constitutes a total of improvisation piece of work without whatsoever precedent inwards international law.”[52] This understanding had been painstakingly negotiated together with approved yesteryear experts from 47 European states together with the European Commission who were fully aware of the European Union together with international law implications. Academic experts by together with large admit that “[t]he provisions of the Draft Accession Agreement on attribution and responsibility are by together with large inwards job with the existing instance law of the ECtHR together with the piece of work of the ILC on the topic of international responsibility.”[53] Like inwards all international negotiations, the solutions eventually found were sometimes the termination of hard compromises, hitting a fair residual betwixt accommodating “the specific characteristics of the Union together with Union law”[54] together with preserving the essential features of the Convention system, such as the say-so together with prerogatives of the ECtHR, the equal handling of High Contracting Parties and, in conclusion but non least, the subsidiary nature of the protection mechanism. From the outset, at that spot was understanding betwixt all the negotiating parties that amendments together with adaptations should hold out limited to what is strictly necessary for the purpose of the accession of the European Union as a nonstate entity.
What is peculiarly hitting inwards Opinion 2/13 is the absence of whatsoever declaration 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, inwards item the above-mentioned Melloni judgment, insisting that ‘the unity, primacy together with effectiveness of European Union law’ must non hold out affected yesteryear the European Union accession. As article 53 ECHR allows High Contracting Parties to the ECHR to apply higher standards of protection than those guaranteed yesteryear the ECHR, the CJEU requires “that provision should hold out coordinated with Article 53 of the Charter (…) so that the ability granted to fellow member states yesteryear Article 53 of the ECHR is limited — with observe to the rights recognised yesteryear the Charter that correspond to those guaranteed yesteryear the ECHR — to that which is necessary to ensure that the flat of protection provided for yesteryear the Charter together with the primacy, unity together with effectiveness of European Union law are non compromised.”[55] This assertion came as a surprise even for many EU lawyers because it is hard to empathise how ratification of the accession understanding tin resurrect powers that European Union fellow member states conduct hold already lost nether the European Union treaties. Moreover, article 52 ECHR is non well-nigh powers or competences. It is a dominion of construction that purports to bound the pre-emptive effect of the remaining provisions of the Convention. It does non grant the High Contracting Parties whatsoever correct they did non already conduct hold prior to in conclusion the ECHR.
More fundamentally, the real utility of using the ‘high’ together with ‘low’, maximal together with minimal nomenclature tin hold out questioned inwards the context of human rights protection.[56] Human rights entail choices as to the appropriate residual betwixt the interests of individuals against those of other individuals or the community. The quantification of levels of protection based on by together with large worded provisions of fundamental rights catalogues proves often difficult. Ronald Dworkin observed pertinently that “it is real hard to scream upwardly of liberty as a commodity.”[57] The clauses imply that human rights are quantifiable together with may easily hold out assessed inwards price of ‘maximum’ versus ‘minimum’ protection.[58]
A ‘race to the top’, seeking ever higher standards makes niggling feel inwards cases of competing human-rights interests which must hold out reconciled, such as liberty of aspect versus privacy,[59] the correct to observe the determination to acquire (or non to become) a parent,[60] or the correct to holding versus the correct to strike. In such multipolar relations, extending the protection of 1 correct or attaching to a greater extent than weight to it volition inevitably conduct hold the lawsuit of restricting the correct of others. Where competing rights are at stake, it should hold out considered to apply the concept of “practical reconciliation” (“praktische Konkordanz”), originally developed yesteryear the High German constitutionalist, Konrad Hesse.[61] It seeks to strike a balance, trying to satisfy competing rights, so that the limitation on the 1 correct is equal to the limitation on the other, taking into concern human relationship the circumstances of each case.
One of the declared purposes of accession is to unopen the existing gaps inwards legal protection yesteryear giving European citizens the same protection vis-à-vis acts of the Union as they presently savour vis-à-vis all European Union fellow member states. In that context, the CJEU’s objection against the ECtHR’s human rights scrutiny inwards JHA’s matters appears particularly problematic. The CJEU argues that such scrutiny would hold out incompatible with the obligation of mutual trust betwixt European Union fellow member states together with accession liable to upset the underlying residual of the European Union to undermine the autonomy of European Union law.[62] This argumentation is questionable fifty-fifty from an European Union law perspective.[63] While the ‘values’ of the European Union – which are a status for European Union membership together with disrespect of which tin Pb to intermission of a fellow member province inwards serious cases – include human rights together with the dominion of law, at that spot is no elevate of the primacy of European Union law, of mutual trust inwards JHA matters, or of divesting whatsoever international courtroom from exercising jurisdiction over EU-related matters.
The underlying supposition that all European Union fellow member states comprehensively ensure observe for human rights needs a reality check. European Union fellow member states are non immune from beingness found inwards violation of fifty-fifty the pith human rights such as article 3 ECHR, the prohibition of torture together with inhuman together with degrading treatment. In 2015 alone, the ECtHR found 103 violations of article 3 ECHR yesteryear European Union fellow member states, 61 violations of article v ECHR, together with 154 violations of article 6 ECHR.[64]
Under the European Union treaties, mutual recognition is only a ‘principle’ to hold out used to facilitate judicial cooperation amongst European Union fellow member states. It should non hold out weighed against, or, fifty-fifty worse, used to escape compliance with legal obligations to observe fundamental rights nether European Union primary law. Respect for fundamental rights constitutes a key factor of the expanse of freedom, safety together with justice, as explicitly foreseen yesteryear article 67 (1) TFEU. It is noteworthy that the EU’s ain Fundamental Rights Agency advocates the utilisation of fundamental rights-based refusal grounds inwards European Union legislation providing for mutual recognition.[65] Even to a greater extent than significantly, inwards 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 Earth (article 11(1)(f)).
In the N.S. case, the CJEU was prepared to give precedence to fundamental rights over the obligations of fellow member states to comply with the provisions of the Dublin II Regulation regarding the homecoming of asylum seekers to their outset dry ground of entry into the EU. The CJEU recognised that fellow member states must non homecoming asylum seekers when systemic deficiencies inwards the asylum physical care for together with inwards the reception weather condition of the dry ground to which they would hold out returned termination inwards a existent risk of asylum seekers beingness subjected to inhuman or degrading handling inside the pregnant of article 4 of the Charter.[66] As the ECtHR Grand bedchamber judgment inwards M.S.S. v Hellenic Republic together with Belgium xi months earlier,[67] the CJEU found that at that spot existed such systemic flaws inwards Greece.
It is highly important that the Bundesverfassungsgericht reached inwards the EAW instance the same conclusion as the ECtHR in Tarakhel,[68] namely that national authorities conduct hold a duty to ensure inwards every private instance that the rights of the requested someone are respected.[69] For national constitutional together with supreme courts, it is normal exercise to review whether the unfettered application of ordinary legislation violates fundamental rights inwards private cases. Where necessary, such legislation tin hold out disregarded or given a restrictive interpretation inwards compliance with fundamental rights. This applies non only to cases of systemic or structural, but also to private instances of human rights violations. Two cases currently pending before the CJEU over again address the enquiry to what extent fundamental rights may hold out opposed to requests for give upwardly nether the EAW.[70] Let us hope that judicial dialogue volition bear its fruits.
These judgments demonstrate at the same fourth dimension that fifty-fifty without accession JHA issues are already before the ECtHR. The ECtHR volition before long deliver a Grand Chamber judgment inwards a instance concerning the recognition of civil judgments inside the EU.[71] The challenge to the invention of mutual trust inwards JHA matters could hardly acquire to a greater extent than severe than it already is. Rather on the contrary, accession together with a strong co-respondent machinery supply the possibility for comprehensive external scrutiny of the JHA scheme as a whole, with the active participation of protagonists from both the supranational together with the national levels, thereby enhancing both trust inwards the diverse mutual recognition systems together with human rights protection for the indviduals concerned. Exempting JHA matters from the orbit of the external command would hold out a cut-back of existing ECHR jurisdiction inwards 1 of the pith areas where effective fundamental rights protection is most needed.
Conclusion
The aim together with purpose of fundamental rights is non to foster harmonisation or uniformity; they are well-nigh the empowerment of individuals together with the protection of liberty primarily against province authorities. The European multilevel scheme of rights protection is composed of layers of protection, that complement each other, instead of layers that are neatly separated according to their source (constitutional, European Union or international). Uniformity is neither required nor desirable inwards a Europe composed of land states, each of which with its ain distinctive traditions of fundamental rights protection.
What is required is consensus on sure minimum standards which apply to everybody yesteryear virtue of beingness human. They are the rights of every human being, virtuous together with unvirtuous alike. The European scheme volition only rest credible if it rests on mutual observe together with trust, goodness volition together with cooperation. For a mobile to work, the dissimilar parts of the scheme conduct hold to locomote well-nigh their chore with sensitivity inwards fellowship to save the overall balance. All this requires non only sincere dialogue together with willingness to engage substantially together with transparently with the arguments used yesteryear ‘other’ courts, but also the recognition of sure mutual (minimum) standards which overstep both national together with supranational legal orders.
Barnard & Peers: chapter 9
[1] Any views expressed inwards this article are those of the writer together with do non necessarily reverberate the official seat of the Council of Europe.
[2] P. Cruz Villalón ‘Rights inwards Europe – The Crowded House’ King’s College London – Working Paper 2012.
[3] A. Voßkuhle ‘Pyramid or Mobile? – Human Rights Protection yesteryear the European Constitutional Courts’ Opening of the Judicial Year 2014 at the European Court of Human Rights Strasbourg, 31 Jan 2014.
[4] M.P. Maduro ‘Contrapunctual Law: Europe's Constitutional Pluralism inwards Action’ inwards N. Walker (ed) Sovereignty inwards Transition (Oxford, Hart, 2003), 501-537.
[5] X. together with Others v. Austria, judgment (GC) of xix Feb 2013 (19010/07).
[6] BVerfG, xix Feb 2013 - 1 BvL 1/11, 1 BvR 3247/09.
[7] ECHR, preamble para. 4.
[8] J.H.H. Weiler ‘Fundamental Rights together with Fundamental Boundaries: On Standards together with Values inwards the Protection of Human Rights’ (1995), reprinted inwards 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 Nov 2010.
[10] chiliad 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. xv amending the Convention for the Protection of Human Rights together with Fundamental Freedoms. The Protocol volition acquire into into strength in 1 lawsuit it has been ratified yesteryear all High Contracting Parties.
[14] For the NGO position, watch Joint Preliminary Comments on the drafting of Protocols xv together with sixteen to the ECHR, doc. DHGDR(2012)008. See comprehensively on the drafting physical care for of Protocols nos. xv together with 16: D. Milner ‘Protocols no. xv together with sixteen to the European Convention on Human Rights inwards the context of the perennial physical care for of reform: a long together with winding road’ 17 ZEuS xx 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 alphabetic character from the Court President to the CDDH Chairperson of 23/11/2012, doc. #4160804.
[16] Explanatory study to Protocol No. xv amending the Convention for the Protection of Human Rights together with Fundamental Freedoms (CETS 213), para. 7.
[17] See S. Greer The European Convention on Human Rights. Achievements, Problems together with Prospects (Cambridge University Press 2006), inwards particular 193 et seq. together with 323 et seq.
[18] Intervention before the Committee of Ministers, at the evening of the Brighton conference, on 23 Feb 2012.
[19] G. De Búrca ‘After the European Union Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?’ xx Maastricht Journal of European together with Comparative Law (2013) 168 (171).
[21] Joined Cases C-293/12 together with C-594/12, Digital Rights Republic of Ireland together with Seitlinger together with Others, 8 Apr 2014.
[22] Case C-131/12, Google Kingdom of 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 Republic of Ireland Ltd (6 Oct 2015).
[24] Judgment of 4 Dec 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 locomote Konturen seines Schattens formt, bestimmt auch das Unionsrecht locomote ,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 Feb 2016). See also J. Kokott & C. Sobotta ‘Protection of Fundamental Rights inwards the European Union: On the Relationship betwixt European Union Fundamental Rights, the European Convention together with National Standards of Protection’ 34 Yearbook of European Law 60-73 (2015) who debate at 73 that the “jurisprudence of the ECtHR inwards Grand Duchy of Luxembourg has been, together with continues to be, extremely of import for the fundamental rights jurisprudence of the CJEU inwards Luxembourg. Strasbourg provides the most of import guidance inwards this area, together with at that spot are real strong incentives for Grand Duchy of Luxembourg to avoid whatsoever potential disagreement on fundamental rights.“
[28] Case C-617/10, Åklagaren v. Åkerberg Fransson (26 Feb 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 Oct 2013).
[31] A. von Bogdandy ‘Protecting the essence of fundamental rights against European Union Member states’ 49 Common Market Law Review, No. 2 Apr 2012, 519.
[32] See the references inwards J. Nergelius ‘The accession of the European Union to the European Convention on Human Rights. Influenza A virus subtype H5N1 critical analysis of the Opinion of the European Court of Justice’ SIEPS 2015:3 (June 2015) and the High German Federal Constitutional Court’s Order of xv Dec 2015 - 2 BvR 2735/14, marginal banker's complaint 47.
[33] HS2 Action Alliance Ltd, R v The Secretary of State for Transport & Anor [2014] UKSC 3 (22 Jan 2014) citing the High German Federal Constitutional Court judgment of 24 Apr 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 inwards einer Weise gefährdete ..., dass dies locomote Identität der durch das Grundgesetz errichteten Verfassungsordnung inwards Frage stellte.“
[34] Ibid.
[35] Pham v Secretary of State for the Home Department [2015] UKSC xix (25 March 2015).
[37] C-399/11 Stefano Melloni v Ministerio Fiscal (26 Feb 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 banker's complaint 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 together with O. Gerstenberg ‘Constitutionalising an Overlapping Consensus: The ECJ together with the Emergence of a Coordinate Constitutional Order’ (2010) ELJ, 511 (512).
[46] See Committee of Ministers’ respond to Parliamentary Assembly Recommendation 1439 (2000), adopted on 31 May 2000 at the 711th coming together 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 Dec 2014); this Opinion should hold out read together with the comprehensive ‘View’ of Advocate General J. Kokott (13 June 2014).
[49] The text of the draft accession understanding its explanatory study as good as related instruments had been agreed at negotiators’ flat on xiii Apr 2013 together with tin hold out consulted at: <http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports_en.asp>. On background together with initial stages of the negotiations watch J. Polakiewicz ‘The European Union’s Accession to the European Convention on Human Rights’ inwards W. Meng/G. Ress/T. Stein Europäische Integration und Globalisierung (Nomos Baden-Baden 2011), 375-391.
[50] Intervention on 26 March 2015 inwards 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 – Influenza A virus subtype H5N1 New Framework for Allocating International Responsibility: the European Union 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 Federal Republic of Federal Republic of Germany (no 2) [GC], nos. 40660/08 together with 60641/08, judgment of vii Feb 2012.
[60] See Evans v UK [GC], no. 6339/05, judgment of 10 Apr 2007, § 73: “The dilemma cardinal to the nowadays instance is that it involves a conflict betwixt the Article 8 rights of 2 private individuals: the applicant together with J. Moreover, each person's involvement is solely irreconcilable with the other's, since if the applicant is permitted to utilisation the embryos, J volition hold out forced to acquire a father, whereas if J's refusal or withdrawal of consent is upheld, the applicant volition hold out denied the chance of becoming a genetic parent. In the hard circumstances of this case, whatever solution the national authorities mightiness adopt would termination inwards the interests of 1 or the other parties to the IVF handling beingness wholly frustrated.”
[61] K. Hesse Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (Müller, Heidelberg, 20th edition 1999), marginal banker's complaint 75.
[62] CJEU Opinion 2/13, para. 194.
[63] On the next watch already See J. Polakiewicz ‘EU law together with the ECHR: Will the European Union’s accession foursquare the circle?’ European Human Rights Law Review (2013), 592-605.
[66] Joined cases C-411/10 together with C-493/10 N.S. (21 Dec 2011), para. 94.
[67] Application no 30696/09, judgment of 21 Jan 2011.
[68] Tarakhel v Switzerland, no. 29217/12, judgment of 4 Nov 2014.
[71] Avotiņš v. Republic of Latvia (no. 17502/07), Chamber judgment of 25 Feb 2015. The Grand Chamber hearing took house on 8 April 2015 with the European Commission having been authorised inwards accordance with article 36 (2) ECHR to participate as a ‘third-party’.
