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Council of Europe and EU Treaty Negotiations Must Respect Sovereignty


by Jim Kelly

Wednesday, February 24, 2010

 Now that the Treaty of Lisbon has entered into force, the Council of Europe is encouraging the European Union (EU) to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the "Convention"). By doing so, the EU would subject itself to the authority of the European Court of Human Rights.  Unless properly implemented with respect for the principle of subsidiarity, the EU's accession to the Convention could lead to a "United States of Europe" with many of the same federal and state constitutional conflicts that the United States of America has experienced and debated for decades.

The Treaty of Lisbon , which entered into force on December 1, 2009, amends the Treaty on European Union (TEU, Maastricht; 1992) and the Treaty establishing the European Community (TEC, Rome; 1957). In the process of adopting the Lisbon Treaty, the TEC was renamed the Treaty on the Functioning of the European Union (TFEU).

The Lisbon Treaty provides for a "Bill of Rights for Europe." Under Article 6 of the Treaty, the EU recognizes the rights, freedoms, and principles set out in the Charter of Fundamental Rights of the European Union (the "Charter"), an agreement which has the same legal standing as the TEU and TFEU.

The Charter contains some 54 articles divided into seven titles. The first six titles relate to substantive rights under the following headings: dignity, freedoms, equality, solidarity, citizens' rights, and justice. The last title concerns the interpretation and application of the Charter. Much of Charter is based on the Convention , the case-law of the European Court of Justice , and pre-existing provisions of European Union law .

· The first title, dignity, guarantees the right to life and prohibits torture, slavery and the death penalty.

· The second title covers liberty, privacy, marriage, thought, expression, assembly, education, work, property, and asylum.

· The third title covers equality, the rights of children, and the elderly.

· The fourth title covers social and workers' rights including the right to fair working conditions, protection against unjustified dismissal, and access to health care.

· The fifth title covers the rights of the EU citizens such as the right to vote in election to the European Parliament and to move freely within the EU. It also includes several administrative rights such as a right to good administration, to access documents, and to petition the European Parliament.

· The sixth title covers justice issues including the right to an effective remedy, a fair trial, to the presumption of innocence, the principle of legality, non-retrospectivity, and preclusion of double jeopardy.

· The seventh title concerns the interpretation and application of the Charter.

Prior to the adoption of the Lisbon Treaty and its incorporation of the Charter provisions, EU citizens who believed that their human rights had been violated relied on the human rights protections contained in the national constitutions and laws of the countries in which they lived or on their ability to petition the European Court of Human Rights ("ECHR") to reverse a national court decision on the grounds that it violated the provisions of the Convention.

With the adoption of the Lisbon Treaty and the incorporation of Charter provisions into EU law, EU citizens can look to the ECJ, the highest EU court, for remedies of any violations of their rights under the Charter. However, the human rights case law of the ECHR, an international judicial body established in 1950 under the Convention to monitor respect of human rights by the 47 member states of the Council of Europe who are parties to the Convention, is far more developed than that of the ECJ and the provisions of the Charter. Indeed, under Article 6 of the Lisbon Treaty, the fundamental rights as guaranteed by the Convention constitute general principles of EU law.

Yet, the EU itself is not a party to the Convention and is not subject to the jurisdiction of the ECHR. This is unacceptable to those EU leaders who believe that EU laws and regulations should be subject to review by an independent international human rights court such as the ECHR and that ECHR decisions regarding the propriety of EU laws and regulations could help create legal precedent that would bind national governments and EU citizens. For this reason, many EU leaders have been actively promoting the EU's accession to the Convention as called for under Article 6 of the Lisbon Treaty.

For example, in a February 2, 2010 speech to the conference "Fundamental rights in the EU in view of the Accession of the Union to the European Convention on Human Rights and Fundamental Freedoms" in Madrid, Spain, Thorbjørn Jagland, Secretary General of the Council of Europe, explained:

We now have a unique opportunity to create a continent-wide area of human rights, in which 47 governments and the institutions of the European union will be bound by the same set of human rights standards and scrutinized by the same human rights court.

By accepting to submit the actions and decisions of its institutions to the same external judicial scrutiny which applies to all member States, the European Union is sending a very powerful message to all European citizens-that just like its member States, it is not "above the law" as far as human rights are concerned, and that individual citizens will be able to bring a complaint about the violation of the European Convention on Human Rights by the European Union before the European Court of Human Rights.

The exact terms of the accession, some of which may require a further protocol to the ECHR or an accession treaty, will have to be agreed upon by all Council of Europe member states, as well as the EU. The EU's negotiations with the Council of Europe are expected to begin in July and continue into 2011.

An essential aspect of the accession negotiations will be the need to ensure that Council of Europe officials and the ECHR respect the sovereignty of EU member States, all of which have national constitutional and legislative human rights safeguards. Also, respect must be given to the Charter provisions and ECJ decisions implementing those provisions. Finally, Council of Europe officials and the ECHR must be open to the views of members of the legal community from nations who will be impacted by EU accession to the Convention.

In this regard, on January 29, 2010, at a seminar to mark the official opening of the judicial year of the ECHR, the Rt. Hon. Lady Justice Arden DBE, Member of the Court of Appeal of England and Wales, delivered an Intervention titled, "Is the Convention Ours?" After acknowledging that "a supranational system of human rights has considerable advantages for each of the contracting states to the Convention," Lady Justice Arden discussed what steps could be taken to improve the ECHR's adjudication of human rights. She suggested that the qualities which the ECHR should aim for include independence, effectiveness in creating a principled body of law within their jurisdiction, quality of reasoning and ability to communicate clearly with their constituents, and respect for the role of national institutions. Importantly, Lady Justice Arden had the following to say about the respect for the role of national institutions:

By this, I mean an awareness of where the boundaries are between [the ECHR's] role and that of the national institutions, including courts, a sensitivity to national traditions and national legal systems and an appreciation that there may be constitutional ramifications for the national institutions flowing from their decisions. This is really a call for judicial restraint by the Strasbourg court, and a sharing by it of its responsibilities for judging whether a breach of human rights has occurred.

In her Intervention, Lady Justice Arden offered a toolkit of suggestions for improving the system of supranational adjudication of human rights containing four main tools: (1) more dialogue, meaning both dialogue between national judges and judges of the Strasbourg court and dialogue between the judges of the different national courts themselves; (2) more subsidiarity; (3) more temporal limitations; and (4) clearer judgments.

Fortunately, the Interlaken Declaration adopted on February 19, 2010 by the High Level Conference on the Future of the European Court of Human Rights (the "Conference") (the "Declaration") reflects, in part, Lady Justice Arden's thinking on the matter of improving the ECHR so that EU accession to the Convention does not undermine national sovereignty. In section E, paragraph 9 of the Declaration, the Conference, acknowledging the responsibility shared between the States Parties to the Convention and the ECHR, invites the ECHR to a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with the ECHR's case-law; b) apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention; and c) give full effect to the new (more stringent) admissibility criterion provided for in Protocol No. 14 to the ECHR, which goes into effect on June 1, 2010.

Ultimately, if the EU accedes to the Convention, the ECHR must provide the same margin of appreciation to the institutional competencies of the EU and the ECJ that it is required to give under the Convention to national governments and their highest courts. In the words of Lady Justice Arden "subsidiarity, including the margin of appreciation, is a concept the Strasbourg court should strengthen in its jurisprudence."

Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.