Who is the supreme human rights judge in Europe?
Up to 18 December 2014, it was taught or hoped to be the European Court of Human Rights in Strasbourg (ECtHR). Now, having the European Court of Justice (ECJ) rejected the draft accession agreement of the European Union to European Convention of Human Rights (ECHR), the issue remains unsolved. The final link in the human rights protection in Europe is still missing. The strength of the negative opinion and the crucial points of non-compliance of the accession agreement with the EU law, as presented by the ECJ, leave a lacuna in the European system of protection of human rights.
The system which lives for more then 6 decades in Europe, and which is often considered to be one of the most effective regional mechanisms of human rights protection, despite of several necessary improvements to deal with its backlog.
The system which may make the respondent state to redress the human rights violations, provide the affected victims with just satisfaction, or even undertake some general measures such as to amend or adopt laws, change inappropriate practices, etc.
The only loophole in the protection of human rights in Europe, however, remains a loophole. The gap was not closed.
The European Union has indeed recognized the European Convention as an instrument by which general principles it shall be led in accordance with constitutional traditions of Member States (Article 6 para 3 of TEU/TFEU). But there comes a question of the extent of influence of the Convention. To respect human rights as a principle, or to be bound by the European Convention and ready to take consequences of potential human rights violations?
The EU was supposed to submit itself to the Court which is not an EU court but the court belonging to a regional international organization consisting of 47 states, the Council of Europe, including at the same time all member states of the EU.
EU provided in the Lisbon treaty its will to accede to ECHR. Although this would come as a precedent, as members to the Convention are only sovereign states, it was eagerly awaited as another signal that EU does carry state elements. The accession would have covered the only loophole in Europe which is not covered directly by the ECHR, and which are the institutions of the EU. Every citizen of the EU could complain to the ECtHR, not only against its national state, but also against a EU body. However, with the ECJ decision as such, the EU citizens seem to be deprived of this control of EU bodies. They can complain to the European Ombudsman, however the ombudsman nature of controlling affairs cannot be compared to judicial control of human rights violations, and is more relied upon the power of authority of ombudsman without an executive power as to its recommendations.
It appears that the ECJ opinion brings out not only the question of the human rights protection instrument applicable in the EU, but one more important question as well. What is the nature of the EU? Is it a sui generis state, a quasistate or a regional international or supranational organization?
Elements that a state should have in classical theories encompass the citizens, government and the territory.
Citizens of the EU are recognized by their EU affiliation and hold the EU citizenship. However, the citizenship is not exercised by the EU itself. It has only accessory nature to national citizenship. The member states are the ones that decide upon the terms of acquiring and loosing one’s citizenship. Naturalization rules differ from state to state, in duration of residence, duration of marriage/partnership, and even in (non)necessity of actual residence in the state granting citizenship. Therefore, there are no unified rules at the EU level governing the acquiring or loosing a EU citizenship.
EU territory is to a large extent unified by the single market, freedom of movement of persons, goods, capital and services, which might be scrutinized only for public good purposes, i.e. protection of public morals, health, prevention of crime etc.
Government in abstract sense, is a bit more complex. Once upon a time, it entailed only state governing power directed to inward, and was considered to be absolute, sovereign, not touchable by any more supreme power. With the atrocities of two world wars the government split to the inner, controllable by the state and outer, states willingly giving to a third objective authority, which led to further development of principles of monism and dualism in international law. Younger democracies opt for dualism, asking for an international recognition of their newly acquired values, while older more traditional democracies stick to monism preserving their inner values and being less susceptible to outer voices. Thus came the Council of Europe. For the cause of safeguarding of values of human rights, democracy and the rule of law, 47 states are now bound to give the part of their sovereign government to CoE bodies, guaranteeing that they will live by these principles. Their will was expressed by their ratification of the ECHR, which is still, despite of occasionally slow procedure by the Convention bodies, considered to be most effective human rights instrument. Differing from other instruments protecting human rights, it provided for direct jurisdiction of the European Court of Human Rights, acting upon a complaint against a respondent state. So it brought not only material but procedural guarantees as well. On the other hand the EU Charter, provides for material provisions mainly taken from the ECHR.
EU seems not ready to submit itself to an outer, third body which could control its acts or procedures in the human rights aspect and eventually request certain actions to be done.
EU thus twice failed at the statehood exam. First, when its constitution was not upheld and now when the ECJ did not uphold its accession to ECHR.
Preparatory work for the accession
The grounds for the accession is Lisbon treaty, in force since 1 December 2009, which in Article 6 para 2 of TEU and TFEU, stipulates that EU shall accede to ECHR provided that EU competences are not affected by the accession. Having in mind that only sovereign states might be member states to the Convention, the first formal link between the CoE and the EU was made by the adoption of Protocol No. 14 to the Convention, which provided in its Article 17 that: ‘The European Union may accede to this Convention’. The said Protocol entered into force on 1 June 2010.
A specially assigned Steering Committee for Human Rights (CDDH), on the side of Council of Europe, and European Commission, on the side of European Union, started their task to prepare the legal instrument of the accession. In mid June 2010, CDDH appointed an informal group of 14 members chosen on the basis of their expertise (seven from EU member States and seven from non-EU member states), and it held eight working meetings with the European Commission and subsequently the ad hoc group (47+1) held another five negotiation meetings with the European Commission. As a result of joint efforts by both the CoE and the EU, a package of text including the draft accession agreement was adopted on 10 June 2013.
Accordingly, the accession agreement did not come at once, nor was it imposed by the Council of Europe. It came as a result of long negotiation process that took more then three years.
That is why the opinion by the ECJ was a surprise to many scholars and practitioners. Could it be that negotiations were not thorough enough? Or that the ECJ was too strong in defending its position? It appears that the ECJ took the role not only of adjudicator but of a (de)creator of political approach towards ECHR undermining the very essence of the whole idea of accession to ECHR. It did not take the negative opinion as to formal grounds but it referred to crucial elements of the Convention system and its procedural safeguards towards the EU. It almost totally detached from the approach agreed upon 7 years earlier in Lisbon.
Essence of the opinion of the ECJ
EU Charter v. the ECHR and ECJ v. the ECtHR
At the outset of its reasoning the ECJ points out that it has only been possible for State entities to be parties to the Convention, and that the EU has created a new kind of legal order with its peculiar nature (para 155, 158 of the Opinion 2/13) which resulted from the Member states limiting their sovereign rights for the benefit of EU (157). It stresses out that the Treaties retain primacy over the laws of the Member States, and that at the heart of that system is the Charter and the fundamental rights it protects with the ECJ giving the judicial protection of individual’s rights. Thus at the very beginning of its reasoning the ECJ wanted to put itself and the EU human rights instrument, the Charter, at the strong first position regarding the issue of human rights protection in EU.
Concern about external control
The ECJ was concerned about its future role in case the EU acceded to ECHR. It contended that the interpretation of the ECHR by the ECtHR would be binding on the EU and that the interpretation by the Court of Justice of a rights recognized by the ECHR would not be binding, vice versa, on the ECtHR. The ECJ has thus clearly refused to be controlled by the ECtHR and to have a subordinated position in the Strasbourg system of human rights protection, which is the exact mode of functioning of Strasbourg system.
Concern about the Convention minimal standards
The crucial point of the ECHR is that it gives only the minimum standards below which the states cannot go. It however does not prevent the states to provide more rights then prescribed by the Convention. The ECJ however fears that the states giving higher standards of human rights protection could jeopardize the Charter having primacy in the EU law. If we have in mind that the Charter mainly incorporated ECHR rights, (and added some more, for example the right to work), can we imagine how could better protection of human rights jeopardize Charter?
Principle of mutual trust-Interstate applications
Interstate applications under the Convention according to which any state may initiate proceedings against any other member state to the Convention, are aimed to preserving the peace and giving every state the right to be a watchdog over possible massive violations of human rights. During the whole life time of the Convention the ECtHR issued only 5 judgments upon interstate applications, in cases of Ireland v. the United Kingdom, Cyprus v. Turkey (2), Denmark v. Turkey and Georgia v. Russian Federation. The ECJ however stressed out that ‘checking’ by one Member state of another Member state would upset the underlying balance of the EU and undermine the autonomy of EU law. (194) Moreover, it said that if the EU states would be able to submit the application to the ECtHR it would undermine the very nature of EU law which requires that relations between the Member states be governed by the EU law to the exclusion. (212) By such a reasoning the ECJ very avariciously preserves its legal system from any outer influence or control.
Advisory opinions by ECtHR v. preliminary rulings by ECJ
Under Protocol No. 16 to the ECHR the Member states could ask the advisory opinion by the ECtHR about the interpretation or application of the European Convention. However, the ECJ fears that the state could circumvent the procedure for preliminary ruling by ECJ by which it interprets EU law?!
Interference into division of powers?
The ECJ contends that ECtHR might be required to assess the rules of EU law governing the division of powers between the EU and its Member states or the criteria for their acts or omissions, and thus interfere into division of powers (224, 225). Could the ECJ be considered overcautious?
Subsidiarity of ECHR system
The very important feature of the ECHR protection system is that it has a subsidiary nature, i.e. it gives first the chance to national system to address the potential human rights violation and only if it fails, there comes the Convention system. That also goes in line with the exhaustion of domestic remedies requirement prior to addressing to the ECtHR. Logically, in case of EU accession to ECHR, the domestic remedy to be exhausted, in case it is effective, would involve the ECJ. However the ECJ contends that if such a possibility would be permitted then the ECtHR would interpret the case-law of the Court of Justice (239). Well it is true, but only when there is a human rights violation under the European Convention, at stake and in accordance with its well established case-law. However the ECJ remains of the opinion that if it (ECJ) were not allowed to provide the definitive interpretation of secondary law, and if ECtHR would provide for its interpretation, it would breach the exclusive jurisdiction over the definitive interpretation of EU Law of the ECJ.
Common Foreign and Security Policy (CFSP)
The ECJ finds problematic any possibility of interfering into the acts of EU under CFSP. But the European Convention does recognize the right of states (EU) to limit certain rights and freedoms (for example Articles 8-12 of the Convention) for the purposes of safeguarding public peace, security, morals, etc. It also provides for the right of depositing reservations regarding certain provisions. Absolute rights, off course, are excluded from this option, such as the right not to be tortured.
It seems from the above considerations that the EU is an international regional organization not yet ready to submit its system to external control. EU remains traditional, not allowing for external control, fearing from loosing the consistency of its well established system. And as dr. Walter Schwimmer rightfully remarked in his recent ‘Human Rights violations inside EU’ ‘if one believes that political persecution, police brutality, torture, inhuman or degrading treatment, illegal detention, unfair trial could not happen on EU territory one should look to the judgments of the European Court of Human Rights and to the reports of Council of Europe’s Commission for the Prevention of Torture’.
So, how shall the negative ECJ opinion affect the human rights gap that remained in relation of ECHR towards the EU? Well, the future is ours to see.