Contemporary Issues of Human Rights Protection in International and National Settings 9781509921768, 9781509921751

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Foreword

This volume is the result of a common and truly international and European effort of, in alphabetical order, the Law Faculties of the Universities of Augsburg (Germany) and Ljubljana (Slovenia). A couple of years ago, the two institutions decided to organize a series of common seminars and conferences on contemporary issues of international law, broadly understood, under the helm of the two editors of this volume. The general outset of the series is two conferences on a common topic held at the two institutions, for which internationally renowned experts as well as younger scholars are invited to present and discuss imminent problems of international law. The first series of lectures was devoted to the protection of human rights in international and national settings and received a very positive response from the participants, which encouraged us to proceed with the preparation of an edited volume of further developed ideas, first presented at the two conferences, We do sincerely hope that the volume is useful in stirring discussions and offering new insights in understanding, interpretation, application and enforcement of human rights. The editors would like to wholeheartedly thank everyone who made the publication possible. This means first of all the participants of the conferences for their contributions and their time spent on preparation of the chapters of this volume. Secondly, the support from Natasha Thomson, LL.B. (Hons., Aberdeen) and Monika Reka Kriss, LL.B. (Hons., Exeter) in proofreading and editing cannot be overestimated. Further thanks have to go to the publishing houses, it is a special privilege for us that leading international law publishers were interested in the publication of this volume and to the Augsburg Center for Global Economic Law and Regulation for its financial support. We hope that the publication proves to be useful to the readers. Augsburg/Ljubljana, Janaury 2018

Stefan Lorenzmeier & Vasilka Sancin

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Introduction to Contemporary Issues of Human Rights in International, European and National Settings Stefan Lorenzmeier & Vasilka Sancin

Human rights are an ever-developing area of international, European and national law. Due to their permanent challenges and relevance for everyday life of persons they are extremely prone to contemporary problems and evolutionary interpretations. This can, for instance, be clearly seen in abundance of domestic case-law as well as the jurisprudence of the European Court of Human Rights (ECtHR), and increasingly so in the jurisprudence of the Court of Justice of the European Union (EU). The volume before you addresses some legislative and institutional developments, as well as actual application and enforcement of human rights in Europe on the state as well as the international level. In the following pages, we attempted to provide a reader with an overview of a selection of contemporary human rights issues and the reasons for their relevance. For this, we strived to group and introduce various sources of human rights applicable in the legal orders of selected European States as well as the European Union, while touching also upon some particular contemporary issues of human rights law. The authors of the volume are a blend of experienced and early stage researchers with a wide variety of backgrounds, which reflects their diversity and proves, hopefully, to be beneficial for finding new approaches and innovative solutions to existing legal problems. I. The Convention for the Protection of Human Rights and Fundamental Freedoms The European Convention on Human Rights and Fundamental Freedoms (ECHR)1 represents the core human rights protection document in Europe with its 47 Member States and a very active specialized human rights

1 Of 4 November 1950, UNTS vol. 213, p. 221.

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court in Strasbourg (France). The impact of the ECHR and the jurisprudence of the European Court of Human Rights on the legal systems of its Member States and, due to Art. 52 (3) Charter of Fundamental Rights of the European Union2, the European Union can hardly be overstated. 1. The ECHR and National Law For international treaties like the ECHR, it is the task of the national laws of the Convention’s States Parties to determine its status in their respective national law. There, the ECHR enjoys either the level of constitutional law or of a lower status, mostly (federal) law. Due to the stated special status of the ECHR in its States Parties, it is possible that their national and international obligations clash, which leads to the question of which legal order prevails. This is at least problematic for the achievement of full compliance and enforceability of international human rights order. In the course of this volume, three interesting case studies will show how the ECHR is applied in a non-member state of the EU, Norway, and two new members, Poland and Slovenia, in different legal contexts. a. Norway, Poland and Slovenia Norway is a State Party to the ECHR since its entry into force in 1953. Although it is not a Member State of the European Union, it has a very close relationship with the EU through the EEA-Agreement3. Moreover, Norway has a comparatively ancient constitution which dates back to 1814 and which originally did not refer to the protection of human rights. After 200 years, the Norwegian Constitution had been amended by Art. 92 NC. The provision establishes the State’s responsibility to “respect and ensure” human rights as they are formulated into this Constitution and in conventions on human rights that Norway is a party to.” Yet, some topical methodological issues in the field of human rights in the aftermath of the adoption of Art. 92 NC arose and are discussed in this volume4. In the

2 OJ 2012 C 326/391. 3 Agreement on the European Economic Area, OJ 1994 L 1/3. 4 Vibeke Blaker Strand & Kjetil Mujezinović Larsen, The Role of the European Convention on Human Rights in the Norwegian Legal Order, p. 27.

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meantime, the Norwegian Supreme Court developed several principles on how the ECHR should be applied by the Norwegian courts in practice, which are addressed as well in the contribution by Blaker Strand and Larsen. Poland, as a new Member State of the European Union, has an extensive jurisprudence on human rights matters. Yet, in spite of Polish constitutional law adopting international human rights standards and Polish courts being obliged to follow them, Poland is frequently struggling with the obligations imposed by the ECHR, as can be seen by the case-law of the European Court of Human Rights. Therefore, it is of special importance how Poland can improve its human rights’ record and can comply with its international legal obligations as discussed by Miler.5. Slovenia became a State Party to practically all major human rights instruments, mainly through succession after the former Yugoslavia and continuously endeavours to build its strong presence on international human rights issues, also through promotion of preparation and adoption of new multilateral human rights treaties. The main objective of the “founding fathers” of the Slovene constitution in 1991 was to create and guarantee an effective human rights protection for all, especially in the field of civil and political rights on the basis of the rule of law, which can be clearly seen from the case-law of the Slovenian Constitutional Court, presented by Škrk6. b. Germany Difficult, as often, is the status of the ECHR in the German legal order. Human rights treaties concluded by Germany have the status of federal statutory law (Art. 59 (2) BL) and do not bind the Government or the Bundestag as constitutional law7. A long and rather intense argument among scholars and the German Constitutional Court is whether basic human 5 Dorota Miler, The Role of the ECHR in the Polish Legal Order, p. 45. See also the contribution by Mirjam Skrk. p. 71. 6 Mirjam Škrk, International Human Rights in the case law of the Constitutional Court, (n. 5). 7 See e. g. Stefan Lorenzmeier, The German Constitution and International Law: Some Remarks on the Comparison with the Opennness of the South African Constitution, in: Möllers/Hugo, Transnational Impacts on Law: Perspectives from South Africa and Germany (Nomos, Baden-Baden, 2017), p. 295 ff.

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rights treaties, like the ECHR, could acquire the status of constitutional law8. The German Constitutional Court’s case law in this respect is rather narrow. According to its case-law, fundamental human rights treaties, such as the ECHR, whose provisions are authoritatively interpreted by the European Court of Human Rights, can be used for the interpretation of the basic rights enshrined in the German Constitution9. As such, it is argued by scholars that the provisions of the ECHR enjoy a status similar to a constitutional guarantee10 and go beyond the mere status of a federal law. The German Constitutional Court does not go so far, due to the restrictive wording of Art. 59 (2) BL11. Yet it seems to accept that some very basic human rights enshrined in international documents may be granted a special status if the German Constitution is granting them the status as well12, such as in the case of the protection of human dignity laid down in Art. 1 BL, which is of overriding importance for the German legal order and is now also part of the EU Charter of Fundamental Rights. Recently the German Constitutional Court had to consider the additional issue whether national statutes contravening international law are unconstitutional. According to the Court, the principle of openness to international law can derive from the systematic analysis of the BL, namely the provisions of Art. 23–26 and 59 (2) BL, which regulate the relationship between the Federal Republic of Germany and the international community13. Yet, as a principle it serves as a guideline for the interpretation of fundamental rights, which means that within the scope of applicable methodical principles an interpretation favourable to international law must always be chosen14. Therefore, the Constitutional Court held that Art. 59 (2) BL cannot be interpreted in a way that is favourable to national

8 This is, for instance, the case in Austria. For the discussion in Germany see e. g. Ondolf Rojahn, in: v.Münch/Kunig, GG-Kommentar, (Beck, München, 6th ed. 2012), Art. 59, mn. 45. 9 BVerfGE 111, 307 (323 ff.). 10 The arguments brought forward by Martin Nettesheim, in: Maunz/Dürig, GGKommentar, (Beck, München 2009), Art. 59 GG, mn. 184 could lead to such a conclusion. 11 BVerfG, 2 BvL 1/12, order of 15 December 2015, para. 34. 12 BVerfG, 2 BvL 1/12, order of 15 December 2015, para. 76. 13 BVerfG, 2 BvL 1/12, order of 15 December 2015, para. 65. 14 BVerfG, 2 BvL 1/12, order of 15 December 2015, para. 71.

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law, which means that the legislature may only in exceptional circumstances override obligations under international law15. 2. The European Union and the ECHR – a never-ending story? A second issue in this regard is the relationship between the European Union and the ECHR. Originally, the European Economic Community knew no provision on the protection of human rights. The basic principle of the Treaties of Rome was to create stability in its Member States through economic integration. This has changed remarkably, as evidenced by Art. 2 and 6 TEU. Art. 2 TEU lists the core values of the Union, inter alia the “respect for human rights, including the rights of persons belonging to minorities”. One of the main drivers for the change, was the German Constitutional Court’s reasoning in the famous Solange-cases16. a. De lege lata status of the ECHR in the EU legal order The European Union nowadays accepts the norms of the ECHR as part of the primary law of the Union due to Art. 6 (3) TEU and as an interpretative tool in accordance with Art. 52 (3) EU Charter of Fundamental Rights. In essence, this means that all EU Member States and the supranational organization, the European Union, have to respect the ECHR in the enacting and administration of their laws. This leads to several legal problems in the respective legal orders, some of which are briefly explored in the following pages. b. De lege ferenda – Accession to the ECHR The accession of the European Union to the ECHR is demanded by provisions of Art. 6 (2) TEU17. The already famous opinion 2/13 of the EU’s Court of Justice disapproved the already negotiated accession agreement

15 BVerfG, 2 BvL 1/12, order of 15 December 2015, mn. 72. 16 2 BvL 52/71, Solange I, BVerfGE 37. 271 and 2 BvR 197/83, Solange II, BVerfGE 73, 339. 17 OJ 2016 C 202/13.

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between the EU institutions and the Council of Europe18. Thus, the established relationship between the two international legal regimes will remain unchanged for now until a new agreement in line with the reasoning of the ECJ is concluded, which seems to be an almost insurmountable task in light of the said reasoning. As a result, the Bosphorus-presumption, according to which the ECtHR can challenge acts of the EU as part of the obligations of the common member states of the ECHR and the EU, still remains valid. Of special relevance in this context is whether the presumption could be extended to other member states of the ECHR or, if this is not the case, whether the ECtHR’s “margin of appreciation”-doctrine could be used. These delicate questions are analysed in the contribution by Engel. 19 The proposed accession of the Union to the ECHR also tackles two further issues, the so-called co-respondent mechanism and the relationship to the inter-state application according to Art. 33 ECHR. The co-respondent mechanism was supposed to deal with the situation that the EU and its Member States were going to be parties to the ECHR at the same time. 20 Firstly, the guiding principles that had to be taken into account when incorporating the co-respondent mechanism into the existent procedure before the ECtHR are scrutinised. Secondly, by analysing the relevant articles of the rejected Draft Accession Agreement, the most important features of the mechanism adopted by the negotiating parties are shown and some of its most disputed weaknesses discussed by focusing on the ones that have been addressed by the Court of Justice itself. The question whether the parties, when bargaining about a politically acceptable deal on the EU’s accession to the ECHR, have found an adequate procedural solution for individual applicants, also ought to be answered in the contribution by Korošec. A related topic is the issue of the effect of the EU’s accession to the ECHR on inter-state applications. Hereby, it is argued that future accession of the EU to the ECHR should not lead to an exclusion of inter-State

18 ECJ, Opinion 2/13, ECLI:EU:C:2014:2454. 19 Daniel Engel, The Future of the Bosphorus-Presumption after the EU’s Accession to the European Convention on Human Rights, p. 133. 20 Tina Korošec, The Co-Respondent Mechanism Before the European Court of Human Rights: An Adequate Procedural Solution or a Flawed Mechanism?, p. 153.

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applications between the, currently 28, EU Member States before the ECtHR under Article 33 ECHR as claimed in this volume by Risini21. Besides the hard law-provisions, the accession procedure of the EU to the ECHR as such is of constitutional relevance for the EU and rather peculiar. The accession procedure is remarkably different from the usual treaty-making procedure laid down in Art. 218 TFEU in terms of the required participation of EU and other bodies and the majority required in a vote. The impact of the procedural rules on the substantive treaty law are stark and the underlying reasons for the special procedure are explored and a possible adjustment proposed in Lorenzmeier’s contribution22. III. Protection of Human Rights by the EU – Internally and Externally Independently from the ECHR the EU has also its own set of human rights norms, mostly laid down in the Charter on Fundamental Freedoms. Yet, the system of protection leads to number of problematic situations between the EU and its Member States and, on a different note, the EU is also exporting its human rights values through international agreements. 1. Human Rights Federalism

Since the signing of the Lisbon Treaty and with it the EU Charter of Fundamental Rights becoming binding part of EU primary law, there is more than one level of human rights protection in Europe.23 First, there is the national level with several national constitutions providing fundamental rights guarantees and national constitutional or highest courts to apply and interpret those. Second, there is the EU Charter of Fundamental Rights. Last, but not least, there is the ECHR and the European Court of Human Rights (ECtHR). At this point, the question of fundamental rights federal-

21 Isabella Risini, The EU Legal Order and the Inter-State Complaint under Article 33 ECHR: Explaining the Incompatibility According to Opinion 2/13, p. 179. 22 Stefan Lorenzmeier, The Procedural and Substantial Requirements of the European Union’s Accession to the European Convention on Human Rights and Fundamental Freedoms: Why So Special?, p. 193. 23 Jennifer Hölzlwimmer, Federalism of Fundamental Rights Protection in Germany and the EU – Two Are Better Than One?, p. 113.

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ism arises and in particular, whether it is possible to develop a ‘quasi-federal’ system of fundamental rights protection in Europe with clear competences and courts respecting and strengthening each other. This is discussed by Hölzlwimmer’s contribution. 2. External Actions of the Union and Human Rights – Effects on other Countries

Moreover, the EU is also an active player on the international stage and concluded a number of international agreements, mostly concerning international trade. Since the late 1990’s one can also find human rights provisions in them. Since the entry into force of the Lisbon Treaty in December 2009, Art. 21 TEU states explicitly that “the Union’s action on the international scene shall be guided by […] the universality and indivisibility of human rights and fundamental freedoms”. One of the closest forms of international cooperation for the EU are association agreements, which entail a very special legal status because they “involve reciprocal rights and obligations, common action and special procedure”24. The Eastern Partnership of the Union as part of the EU’s neighbourhood policy is of very special relevance for the EU and has been at the heart of a number of political discussions in recent years, most of them along the lines of the concluded Association Agreement with Ukraine which has just recently entered into force25. The innovative agreement has in its first part on political objectives, some provisions concerning the respect human rights. These are so called “trigger-clauses” (e..g. “conditionality”), because the EU has the right to cancel the agreement if Ukraine fails to respect these rights. They are of special importance for the agreement, which constitutes a new type of integration without membership. The new legal framework, which has the objective to establish a unique form of political association and economic integration, is characterized by three main features: comprehensiveness, complexity and conditionality26. This led to the acceptance of new mechanisms of enhanced conditionality and legislative approximation, which are explored by Petrov.

24 See Art. 217 TFEU. 25 The entry into force took place on September 1, 2017. 26 Roman Petrov, Human Rights in Association Agreements with Ukraine, Moldova and Georgia, p. 215.

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IV. International Human Rights in a Broader Context Human rights are not limited to protect the individual from interferences by the state. Other bodies, like non-governmental organizations, are expected to comply with human rights as well, as shown by the example of the International Olympic Committee (IOC) in the contribution by Bajec Korent. 1. International Sports Organizations and Human Rights Special attention should be given to non-governmental organizations aiming to promote goals of fairness and sportsmanship like the international sports organizations. As the debate around the possible human rights violations concerning the upcoming football world cup tournaments in Russia and Qatar and the one on the Olympic Games in Rio de Janeiro in 2016 clearly shows the relevance of the question of the role of the international sport organizations in this context. By using the example of the Olympic Movement, it is explored which mechanism the International Olympic Committee possesses to improve the respect for human rights in a specific country. Thereby, three different mechanisms are explored, sanctioning, shaming and co-optation27. Another issue is whether the stated organizations are as such interested in doing so because they are politically involved in a number of scandals. 2. Social Human Rights Additionally, another constantly evolving area are social human rights as laid down in the International Covenant on Cultural, Economic and Social Human Rights28. These human rights are usually termed second generation human rights,29 and are situated at the cross-roads between individual

27 Daša Bajec Korent, The Role of the Olympic Movement in the Promotion and Protection of Human Rights, p. 267. 28 ICESCR, UNTS, vol. 993, p. 3. 29 Asbjørn Eide & Allan Rosas , “Economic, Social and Cultural Rights: A Universal Challenge”, in: Eide, Krause and Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, 2nd ed., (Martinus Nifhoff, Leiden, 2001), pp. 3-4; Erika Szys-

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and collective rights. They are like the classic first generation ones30 directed vertically at the respective public body, namely the state. Thus, it is the task of states to give these rights the proper effect within their national jurisdictions31. Moreover, the distinction between several generations of human rights should not lead to their division. All human rights are, in the words of the 1993 Vienna Declaration on Human Rights, “universal, indivisible, interdependent and interrelated”,32 and the drafting of two different, yet interrelated, Covenants on the subject-matter should not lead to a different conclusion. The original proposal of the Human Rights Commission was a single document entailing civil and political as well as economic, social and cultural rights,33 which were subsequently split up in separate documents due to political pressure. Even after the split, the United Nations General Assembly, in its decision on the two Covenants, the International Convention of Civil and Political Rights34 and the International Covenant on Economic, Social and Cultural Rights, stressed that the two

30 31 32

33 34

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zak, “Social Rights in the European Union”, in: ibid., pp. 493-4. Mashood Baderin and Robert McCorquodale perceive this category to be very unhelpful (“International Covenant on Economic, Social and Cultural Rights: Forty Years of Development”, in: Baderin and McCorquodale (eds), Economic, Social and Economic Rights in Action, (OUP, Oxford, 2007), pp. 3-10). In 1987, K J Partsch voiced “grave doubts whether the concept of generation of rights is well-founded”; see Partsch, “The Enforcement of Human Rights and Peoples’ Rights: Observations on their Reciprocal Relations”, in: Bernhardt and Jolowicz (eds), International Enforcement of Human Rights, (Springer, Berlin, 1987), p. 25. See, for example, the individual rights enshrined in Part III of the ICCPR. Stefan Lorenzmeier, Enforcement of Transnational Social Rights: International and National Legal Aspects, in: Fischer-Lescano/Möller, Transnationalisation of Social Rights (Intersentia, Cambridge 2016), p. 87 ff. Vienna Declaration and Programme of Action, A/CONF.157/23, no. I.5. It states further that “the international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote all human rights and fundamental freedoms”. HR Commission, UN ESCOR, sup 9 (E/1992), 4 May 1951, pp. 20 et seq. ICCPR, UNTS vol. 999, p. 171.

Introduction

sets of rights are “interconnected and interdependent”,35 and the respective preambles of the Covenants pay regard to both sets of rules as well.36 The division between the two sets of rules seems to be artificial and should not be pursued further than absolutely required by law. Tribute should also be paid to the aspect that individual civil and political human rights are not limited to the sphere of the ICCPR, but have, due to their interconnectedness, a collective dimension as well. Even the ECtHR stressed that “no water-tight division” is possible between the individual rights enshrined in the ECHR and the collective ones of the European Social Charter.37 a. A Driver for Self-Determination? The social, economic and cultural rights are developed further by accepting another group of collective human rights like the right to self-determination and the right to development. The question is whether these rights may be a tool for the full implementation of the social, economic and cultural human rights. The right to development as enshrined in the 1986 UN General Assembly Declaration on the Right to Development calls for recognition of a shared responsibility for respect of human rights around the globe. However, due to the lack of conceptual clarity of the right to development, its normative validity has been greatly affected and it is widely believed that it is merely a failed attempt to improve human rights and fundamental freedoms in developing states. Such assertions contradict

35 GA res 543 (VI), 5 February 1952, preamble. 36 See, for example, the preamble of the ICESCR: “[…] in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights” and the almost identical wording in the ICCPR: “[…] in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.”. 37 ECtHR, 6289/73, Airey v Ireland, judgment of 9 October 1979, para. 26. For an in-depth analysis of the jurisprudence of the ECtHR in this regard, see Arno Frohwerk, Soziale Not in der Rechtsprechung des EGMR, (Mohr Siebeck, Tübingen 2012).

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recent developments within the Human Rights Council calling for the adoption of a legally binding document, which indicates that the right to development is still an evolving concept and has the potential to foster the extraterritorial application of economic, social and cultural rights by imposing a corresponding obligation on the developed states to ensure the enabling environment for people in developing states to exercise their economic, social and cultural rights, which is an issue discussed by Kovič-Dine38. b. Social Rights and Global Constitutionalism Social human rights are also an essential element of a number of national constitutions and are a fundamental part of the discussion on global constitutionalism. If the core object of constitutional control, the political power, tends towards globalism, should this not also be accepted for the main power controlling the political power, the fundamental rights? In this context, one of the main issues discussed by Guerra de Fonseca is their place and role in the discussion on global constitutionalism, especially whether they are expendable or an essential element of legitimacy39. c. Enforcement of Social Human Rights The enforcement of international human rights in the national legal orders of the European states usually differs from the enforcement of the ECHR. Hereby, the case of Germany is of special interest again because the two Covenants only at the outset enjoy the same normative value as the ECHR. The latter can have, as stated supra, a special interpretative value for the norms of the German constitution. Until now, the same status has not been granted to the Covenant-rights by the German Constitutional Court as emphasized by Hofmann40. This is be mirrored against the Slove-

38 Maša Kovič Dine, Right to Development, Driver for Extraterritorial Application of Economic, Social and Cultural Rights, p. 253. 39 Rui Guerra de Fonseca, Global Constitutionalism and Social Rights: A Few Notes on Human Rights in the Quest for a Substantive Rule of Law, p. 237. 40 Désirée Hofmann, International Human Rights and Their Enforcement in the German Legal Order, p. 93.

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nian experience and jurisprudence of the Slovenian Constitutional Court as evident form the contribution by Škrk41. 3. International Criminal Law International criminal law is another area of quickly developing legal rules. For example, the International Criminal Court has recently sentenced the first accused for a violation of the war crime of attacking historic and religious buildings in Timbuktu42. Yet, it is also a comparatively new branch of law. After its humble beginnings in the International Military Tribunals in Nuremberg and Tokyo in the aftermath of the Second World War, the idea had only been resurrected in the early 1990’s by establishing two ad hoc tribunals for the situations in the former Yugoslavia and Rwanda, followed by an universal statute and a universal court in 2002, the International Criminal Court (ICC). Since its beginning, international criminal law consists of a blend of pure, traditional international and internationalized national legal rules. These rules are sometimes at odds with each other and have to be balanced. A good illustration for this phenomenon are procedural rights. It is generally accepted that accused have a right of a fair trial with a due process in line with the traditional concepts of law like the presumption of innocence. On the other hand are the rights of the victims. Victims of mass atrocity crimes are special in many ways. They have several important needs, including: receiving financial compensation; seeing that perpetrators get punishment; having a forum to speak and be heard, and obtaining the truth and sufficient evidence about the events that caused their harms. The rights of victims and defendants may conflict since they are inherently adverse parties. There are differences in the degree of protection and guarantees of the rights of victims before the ad hoc tribunals, ICC and national courts. Despite these conflicts, the named bodies established a model suitable for the realization of victim's rights in criminal proceedings without jeopardizing the defendant(s) rights, which should be protected as well. This new concept of international criminal law was unknown in the Nuremberg and Tokyo trials, and stems from various national legal orders. 41 Mirjam Škrk, International Human Rights in the Case Law of the Slovenian Constitutional Court, (n. 5). 42 International Criminal Court, Al Mahdi Case, ICC-01/12-01/15.

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These concepts have to be balanced in a way that the fundamental rights of the accused are not jeopardized as highlighted by Žagar43. V. Concluding Remarks By offering an overview of some of the most imminent issues of human rights protection, this volume aims to shed some light to the often complex and important subject of human rights protection. The different contributions address the said relevant topics in an innovative manner by inter alia proposing new interpretative approaches, which shall lead to an improved respect and understanding of human rights in the different legal orders. Moreover, the anlyses aspire to trigger and support necessary further discussions both in academia as well as in practice at national, European and international levels in order to improve human rights records of States, international inter-governmental bodies, NGOs, and at least indirectly, non-state actors.

43 Marina Žagar, Defendant’s Right to a Fair Trial and Improvement of the Victim’s Status in the Proceedings before International Criminal Jurisdictions, p. 289.

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The Role of the European Convention on Human Rights in the Norwegian Legal Order Vibeke Blaker Strand and Kjetil Mujezinović Larsen

Abstract Norway has been a party to the European Convention on Human Rights (ECHR) for more than 65 years. Through a presentation of the formal space accorded to the ECHR within domestic law; constitutional amendments; interpretive standards developed by the Norwegian Supreme Court; an overview of judgments from the European Court of Human Rights (ECtHR) against Norway; and a presentation of current challenges, this article offers insight into central aspects of the role played by the ECHR in the Norwegian legal order. During the last 20 years, domestic developments in relation to human rights have happened through the adoption of new regulations and through interpretation. Today, the ECHR occupies a prominent role within the human rights landscape. The Convention has also influenced, and will continue to influence, the formation of the landscape itself. 1 Introduction The European Convention on Human Rights has acquired an important status in the Norwegian legal order. To fully understand its role, several perspectives need to be considered. Firstly, there is the formal protection offered to the ECHR in the domestic legal order (see part 2 below). The Convention is incorporated in Norwegian law, where a particular rule stipulates that in the case of norm conflicts, rights in the Convention should take precedence over conflicting norms in other national legislation. The Convention as such has not been incorporated at the constitutional level, but the Norwegian Constitution contains several provisions that are based on rights in the ECHR; and additionally, the Norwegian Constitution requires national authorities to “respect and secure” human rights. Secondly, it is necessary to consider the key interpretative strategies that have been 27

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developed by the Norwegian Supreme Court, which have played a crucial role in concrete cases where it is argued that there is a conflict between the domestic legislation and the ECHR (see part 3). After having presented the formal protection and interpretative strategies, the article proceeds to present concrete case law material both from domestic courts and from the European Court of Human Rights (ECtHR). In addition to presenting numbers and developments regarding how often the Convention has been invoked in courts, the article comments particularly on the field of immigration as an area where there are existing tensions between the Convention and domestic laws and administrative practice (see part 4). In part 5 we discuss some current challenges relating to the constitutional status of human rights in Norway. Some concluding comments are presented in part 6. 2 The Formal Protection 2.1 The Convention as International Law and as Domestic Law Norway signed the Convention on 4 November 1950 and ratified it on 15 January 1952, making Norway one of the original States Parties to the Convention. Norway has also ratified all the additional protocols, with the exception of Optional Protocol no. 12 on non-discrimination, which is signed but not (yet) ratified.1 The ECHR does not in itself set requirements for the implementation of the Convention in the domestic legal order. Article 1 requires States to “secure” the rights and freedoms in the Convention, but the Convention is silent on how this should be done. The Convention permits monistic as

1 Norway signed Optional Protocol no. 12 on 15 January 2003, and ever since there has been an ongoing debate regarding Norwegian ratification. Opponents of ratification have focused on the vague nature of the wording of the protocol and the lack of foreseeability as to how the protocol may be interpreted. Supporters of ratification focus on the fact that Norway is already bound by the similar prohibition against discrimination in Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and that OP no. 12, therefore, does not lead to new legal standards, but rather gives the European Court of Human Rights a formal legal basis to enforce a norm that already applies to Norway. The Norwegian Government has not yet indicated any intention to ratify OP no. 12 and the arguments against ratification have, so far, prevailed.

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well as dualistic approaches to the relationship between international law and domestic law. Norway is in principle a dualistic state, i.e. domestic implementation is required in order for international law to become directly applicable in the national legal order. However, two important exceptions apply, which also create important monistic characteristics in the Norwegian legal order. Firstly, some domestic legislation requires that Norwegian law in specific areas must be applied in accordance with international legal obligations, i.e. a principle of sectorial monism. The sectorial monism approach is for instance taken in section 1 no. 2 of the General Civil Penal Code: “The criminal legislation shall apply subject to such limitations as derived from any agreement, with a foreign State or from international law generally.”2 A number of other acts take the same approach. Secondly, a generally applicable, unwritten “principle of presumption” applies, which means that Norwegian law shall be presumed to be in conformity with Norway’s international legal obligations unless it is evident that there is a conflict of norms, in which case domestic law should prevail. Since the European Convention on Human Rights is incorporated within the domestic legislation, these principles now have limited relevance when applying the ECHR in the domestic legal order. 2.2 The Legal Status of the Convention before 1999 From the date of ratification, Norway had an international obligation to secure the rights and freedoms in the Convention within the domestic legal order. At that point, however, no active steps were taken in order to implement the Convention, since the domestic law was considered already to be in harmony with the Convention.3 Therefore, the ratification by Norway of the ECHR did not lead to amendments in the domestic legislation, and the Convention was not incorporated into domestic law. This did not mean,

2 Original wording: «Straffelovgivningen gjelder med de begrensningene som følger av overenskomst med fremmed stat eller av folkeretten for øvrig.». 3 See Royal Proposition no. 83 (1951), cf. Official Norwegian Report 1993: 18 p 47. Norway made one reservation upon ratification, regarding freedom of religion and belief in Article 9. At the time of ratification, Norway had a provision in the Constitution that prohibited people belonging to the Society of Jesus to access to Norway. This reservation was revoked in 1956.

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however, that the Convention did not have any impact. As will be discussed in part 4.1 below, the Convention was invoked in 292 cases before the Supreme Court until 1998. In 1989, the domestic legislator began a process aimed at making “the central human rights conventions” part of the internal legal order, since the existing system was criticized for not giving those human rights conventions that are binding for Norway any formal status within the domestic legislation. This process led to considerable discussion about which human rights conventions should be considered “the central” ones. However, the ECHR was not particularly discussed in this regard, since there was a general agreement that the ECHR was a central human rights convention. The process culminated with the adoption of the Human Rights Act in 1999.4 2.3 The Human Rights Act According to section 1 of the Human Rights Act, the purpose of the Act “is to strengthen the position of human rights in Norwegian law”. To achieve this purpose, two main measures were adopted. Firstly, the Act gives the ECHR and four other conventions the status of domestic Norwegian law, cf. section 2.5 These Conventions have been formally incorporated into domestic law through the Human Rights Act, i.e. giving the conventions themselves in their authentic wording the status of domestic law. Secondly, the Act gives the incorporated conventions a “semi-constitutional” status. Section 3 reads: The provisions of the conventions and protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.

In other words, in case of a conflict between a provision in the ECHR and another norm in Norwegian legislation, the ECHR shall prevail. Conse-

4 Act 21 May 1999 no. 30 Relating to the strengthening of the position of human rights in Norwegian law (The Human Rights Act). 5 Originally, section 2 included (in addition to the ECHR) the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The UN Convention on the Rights of the Child (CRC) was added in 2003, and the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) was added in 2009.

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quently, section 3 affords a particular legal status to the incorporated conventions. They do not have the status of constitutional norms, and formally they are incorporated on the same rank as other legislation, but the actual effect of section 3 is that their status lies somewhere between the Constitution and other legislation. Section 3 gives rise to general questions of considerable importance in Norwegian law: Firstly, what approach should national courts take when they interpret the incorporated human rights conventions? And secondly, when can it be established that there exists a “conflict” between the Convention and another legislative provision? Before we return to these questions in part 3 below, let us address the constitutional protection of human rights in Norway. 2.4 The Protection of Human Rights in the Norwegian Constitution The Norwegian Constitution was adopted 17 May 1814 and is the world’s second oldest constitution that is still in force. Originally, the Constitution contained only a few provisions that protect what we today regard as “human rights”, for instance a prohibition against torture during interrogations; that arrest and punishment can only take place when prescribed by law; freedom of the press; and prohibition against retroactive laws. This made the Constitution a modern document compared to its contemporaries. Over time, however, the protection of human rights in international law and in domestic constitutions has increased dramatically, while the Norwegian Constitution has undergone only sporadic amendments. The Constitution continued to protect only a few human rights, and as a result, the protection of human rights on constitutional level remained fragmented. In 1994, the Constitution was amended to include a new provision, section 110 c, with the following wording: It is the responsibility of the authorities of the State to respect and ensure human rights. Specific provisions for the implementation of treaties thereon shall be determined by law.6

6 Our translation. Original wording: “Det paaligger Statens Myndigheder at respektere og sikre Menneskerettighederne. Nærmere Bestemmelser om Gjennemførelsen af Traktater herom fastsættes ved Lov.”.

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The second paragraph was a direct reference to the Human Rights Act and, consequently, to the conventions that were selected for incorporation. In May 2014, Norway celebrated the 200th anniversary of the Constitution. As part of the preparations for the anniversary, the Norwegian Parliament (“Stortinget”) established a Human Rights Commission (“Menneskerettighetsutvalget”) in 2011, which was given the mandate to propose amendments to the Constitution in the field of human rights.7 The aim was to further strengthen the position of human rights in the Norwegian legal order. The 1814 Constitution was alleged to insufficiently reflect the actual human rights protection in the domestic legal order. The Commission considered it important that the Constitution should reflect the actual legal situation with regard to human rights, since a constitution sends important signals beyond merely the legal sphere. The Constitution is also an instrument for expressing the values that are central in the Norwegian society today. In addition, due to special procedural norms embedded in the Constitution itself, constitutional norms offer more resilience than ordinary laws if confronted with a future political climate where the removal of fundamental human rights from the domestic legal order was put on the agenda.8 A new chapter on human rights was adopted by the Parliament in May 2014, a few days before the anniversary on 17 May. The chapter contains new provisions both regarding civil and political rights as well as economic, social and cultural rights. Many of the amendments were uncontroversial. This was the case for the civil and political rights that were adopted, many of which have a wording that is based on the corresponding provisions in the ECHR, for instance the prohibition

7 The Committee’s final report was published on 19 December 2011, as Document 16 (2011–2012) Report to the Presidium of the Sorting by the Human Rights Commission concerning Human Rights in the Constitution; for the mandate, see p. 18. The Commission’s recommendations are available in English: https:// www.stortinget.no/globalassets/pdf/diverse/report-from-the-human-rights-commission.pdf (accessed 30 October 2016). 8 See section 121 of the Constitution. Here it is established that a proposal to amend the Constitution shall be submitted to the first, second or third Storting after a new General Election and be publicly announced in print. However, it shall be left to the first, second or third Storting after the following General Election to decide whether or not the proposed amendment shall be adopted. Amendments must never contradict the principles embodied in the Constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the Constitution, and such amendment requires that two thirds of the Storting agree thereto.

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against torture or inhuman or degrading treatment in section 93 of the Constitution and the freedom of assembly and association in section 101 of the Constitution. The main controversies concerned the adoption of constitutional provisions that protect economic, social and cultural rights. Some of the proposed provisions, for instance proposals to include the right to an adequate standard of living and the right to necessary medical care, were not adopted. Others gained the necessary 2/3 majority in the Parliament, for instance the proposal to include a provision on children’s rights that comprise the principle of the best interest of the child. It is, however, important to observe that the Constitution does not give constitutional status to (any) human rights convention(s) as such. As a part of the revision, section 110 c was replaced by a new section 92, which reads: The State shall respect and secure human rights as they are formulated in this Constitution and in conventions on human rights that are binding for Norway.9

This new provision gave rise to some interpretive uncertainty, which will be addressed in part 5 below. 3 Interpreting the ECHR within the Domestic Legal Order As the highest national court, it is for the Norwegian Supreme Court to develop the general principles of interpretation when human rights conventions are applied as domestic law. The Supreme Court has had several opportunities to do so, and it has articulated a general guideline for the interpretation of human rights conventions in domestic law, with a particular reference to the ECHR: When they apply the ECHR, Norwegian courts need to undertake an independent interpretation of the Convention. In doing so, they shall apply the same legal method as the European Court of Human Rights. Norwegian courts shall, accordingly, consider the text of the Convention, the purpose of the Convention, and the case law of the European Court of Human Rights. It is, however, primarily for the European Court of Human Rights to further develop the Convention. If there is doubt about the balancing of different values

9 Our translation. Original wording: «Statens myndigheter skal respektere og sikre menneskerettighetene slik de er nedfelt i denne grunnlov og i for Norge bindende traktater om menneskerettigheter.».

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and interests, the Norwegian courts must be able to include into its assessment the prioritization of values on which domestic laws and legal opinions are based.10

This is an approach that aims to secure that the interpretation of the ECHR in Norwegian law corresponds to that of the European Court of Human Rights. The Supreme Court has also developed elaborate standards concerning how to determine whether there exists a “conflict” between a human rights norm and another legislative norm, and, consequently, when a human rights norm “shall take precedence” according to Section 3 of the Human Rights Act. Before the adoption of the Human Rights Act in 1999, the view was that a norm under international law (including human rights law) needed to be “sufficiently clear and unambiguous” in order to take precedence over a domestic norm.11 After the adoption of the Human Rights Act, the Supreme Court has revised this position. There is no requirement that a conflict must be “totally clear”, “beyond any doubt” or anything to that effect. It is sufficient for precedence to take place that general rules of interpretation have been followed in the reasoning of courts. When deciding the content of the human rights norm, the courts shall seek to determine the human rights norm “with the best reasons to speak in its favour”.12

10 Our translation of Rt. 2005 p 833 [“Uskyldspresumsjon”], para. 45. Original wording: «Det følger av disse at ved anvendelse av reglene i EMK skal norske domstoler foreta en selvstendig tolking av konvensjonen. Herunder skal de benytte samme metode som EMD. Norske domstoler må således forholde seg til konvensjonsteksten, alminnelige formålsbetraktninger og EMDs avgjørelser. Det er likevel i første rekke EMD som skal utvikle konvensjonen. Og dersom det er tvil om forståelsen, må norske domstoler ved avveiningen av ulike interesser eller verdier kunne trekke inn verdiprioriteringer som ligger til grunn for norsk lovgivning og rettsoppfatning.». 11 Rt. 1994 p 610 [«Bølgepappkjennelsen»] at para 616. The facts of this case fell under the General Civil Penal Code and, thus, an area covered by the principle of sectorial monism, cf part 2.1 of this article. 12 Rt. 2002 p 557 [“Dobbeltstraff I”] at para 565.

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4 The Actual Role Played by the ECHR – An Overview of Case Law Material In order to implement human rights standards, it is not enough to have a formal protection that looks good on paper. It is how the human rights norms are implemented and “translated” into the domestic sphere that matters. Human rights norms place obligations on all branches of government to enhance human rights. Also counter-dynamics at domestic level towards the impact of human rights in general and the ECtHR and the Convention in particular, are part of the picture.13 In the following, this article does not go into all aspects relevant to the issue of the role played by the ECHR in the Norwegian legal order. We narrow the topic down by focusing on the role played by the ECHR in the judiciary, both at the domestic and the European level. By focusing on case law with particular regard to Supreme Court cases, the extent to which the ECHR is invoked before the highest national court can be discussed, see section 4.1. In addition, cases brought against Norway before the European Court of Human Rights (ECtHR), and in particular cases where it is concluded that the Convention has been violated, indicate in which areas the domestic legal order is unsatisfactory, see section 4.2. 4.1 Invoking the ECHR before the Domestic Courts The fact that the ECHR was incorporated into domestic law through the Human Rights Act in 1999, makes it relevant and important to investigate whether the incorporation has resulted in the Convention being invoked more frequently in the Norwegian Supreme Court after 1999 than before. A search into the Norwegian database "lovdata", that contains all Supreme Court cases, reveals that since 1961, the ECHR has been invoked before the Supreme Court in a total of 1,568 cases.14 292 of these cases took

13 Michael Reiertsen, ‘Norway: New Constitutionalism, New Counter-Dynamics?’ p 361-384 in Patricia Popelier, Sarah Lambrecht and Koen Lemmens (eds.) Criticism of the European Court of Human Rights. Shifting the Convention System: Counter-Dynamics at the National and EU Level (Intersentia 2016.). 14 This is based on searching for the word «EMK» [ECHR] in all Supreme Court practice on the webpage www.lovdata.no, which is a resource base for legal material in Norway that is continuously updated. Date of access: 18.10.2016.

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place during the period spanning from 1961 to 1999, whereas the remaining 1,276 took place from 1999 until today. Expressed as a percentage, this means that approximately 18,6 % of the cases occurred during a period of 38 years until 1999, whilst approximately 81,4 % of the cases occurred from 1999 onwards. Thus, we see that since the Convention's incorporation into domestic legislation in 1999 there has been a considerable increase in how often it has been used as a legal source in Supreme Courtcases. If we also include all cases brought before the Courts of Appeal, this trend becomes even clearer. Out of 5,009 cases in which the ECHR was invoked,15 a total of 4,587 (i.e. 91,6 %) occurred after the incorporation of the ECHR into domestic legislation. The actual role played by the ECHR in the courts’ reasoning varies. In some cases, the Convention is only referred to in passing without further discussion. In other cases the courts are able, through interpretation, to harmonize domestic legislation with the Convention so that no conflict is considered to exist between the norms. Finally, in some cases the domestic courts have concluded that the ECHR has been violated. This has resulted in domestic legislation being set aside according to the Human Rights Act section 3.16 It has also resulted in courts declaring administrative decisions as invalid. 4.2 Judgments by the European Court of Human Rights against Norway Since Norway accepted the jurisdiction of the ECtHR in 1964, the Court has delivered 43 judgments against Norway.17 In 28 of the cases, the Court concluded that the ECHR had been violated.

15 The number includes cases brought before all Courts of Appeal and the Supreme Court. 16 For examples, see Rt. 2002 p 497 ["Dobbeltstraff II"] and Rt. 2005 p 833 ["Uskyldspresumsjon"]. 17 The number is updated 29.9.2017. The Norwegian Centre for Human Rights keeps a registry of judgments against Norway, see http://www.jus.uio.no/smr/ forskning/emd/emd--dommer/. Given the fact that approximately 1,300 complaints were brought to the Court from Norwegian applicants in this period, the share of cases where the Court actually examined the merits and formulated judgments, is very low. Exact numbers regarding allegations against Member States, throughput of applications and violations by Article during the period between 1959-2013 can

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There are three Articles in the ECHR where the Court has concluded that a violation took place on more than one occasion: The Court has found 13 violations of Article 6 on the right to a fair trial,18 seven violations of Article 8 on the right to respect for private and family life,19 and five violations of Article 10 on the freedom of expression.20 In addition, the Court has found one violation of Article 5 on the right to liberty and security,21 one violation of P1-1 on the protection of property,22 and one violation of the parental right to respect for their religious and philosophical convictions as embedded in P1-2.23 In the 1990's and first decade of the Millennium, judgments against Norway primarily concerned Article 6 and Article 10 ECHR. Since 2008, there has been an increase in cases that concern Article 8 ECHR in the field of immigration. Since 2008, the ECtHR has issued five judgments against Norway that involve Article 8 and immigration, and violations

18

19

20

21 22 23

be found in Overview 1959-2013 ECHR, available at: accessed 18.10.2016. Botten v. Norway App no 16206/90 (19 February 1996); Hammern v. Norway App no 30287/96 (11 February 2003); O. v. Norway App no 29327/95 (11 February 2003); Y. v. Norway App no 56568/00 (11 February 2003); Walston (No. 1) v. Norway App no 37372/97 (03 June 2003); Kaste and Mathisen v. Norway App Nos 18885/04 and 21166/04 (09 November 2006); A. and E. Riis v. Norway App no 9042/04 (31 May 2007); Ekeberg and others v. Norway App nos 11106/04, 11108/04, 11116/04 (31 July 2007); A. and E. Riis v. Norway (No 2) App no 16468/05 (17 January 2008); Orr v. Norway App no 31283/04 (15 May 2008); Kristiansen and Tyvik AS v. Norway App no 25498/08 (02 May 2013); Hansen v. Norway App no 15319/09 (02 October 2014); Kristiansen v. Norway App no 1176/10 (17 December 2015). Johansen v. Norway App no 17383/90 (07 August 1996); Sanchew Cardenas v. Norway App no 12148/03 (04 October 2007); A. v. Norway App no 28070/06 (09 April 2009); Nunez v. Norway App no 5597/09 (28 June 2011); Butt v. Norway App no 47017/09 (04 December 2012); Vilnes and others v. Norway App nos 52806/09 and 22703/10 (05 December 2013); Kaplan and others v. Norway App no 32504/11(24 July 2014). Bladet Tromsø and Stensaas v. Norway App no 21980/93 (20 May 1999) [GC]; Nilsen and Johansen v. Norway App no 23118/93 (25 November 1999) [GC]; Bergens Tidende and others v. Norway App no 26132/95 (02 May 2000); Tønsberg Blad and Haukom v. Norway App no 510/04 (01 March 2007); TV Vest and Rogaland Pensjonistparti v. Norway App no 21132/05 (11 December 2008). E. v. Norway App no 11701/85 (29 August 1990). Lindheim and others v. Norway App nos 13221/08 and 2139/10 (12 June 2012). Folgerø and others v. Norway App no 15472/02 (29 July 2007) [GC].

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were found in three of them.24 All of these cases concerned applicants who lacked a residence permit and who – due to different circumstances – were subject to expulsion from Norway to their countries of origin. In four of the cases, a key issue was whether such expulsion would amount to a breach of the Convention due to the fact that the consequences of an expulsion for the applicant’s children had to be integrated into the assessments under Article 8 No. 2.25 The number of recent cases suggests that the intersection between the right to private and family life embedded in Article 8 ECHR, immigration and the rights of children gives rise to difficult legal questions where Norway faces challenges in order to implement the Convention in a satisfactory manner. In these matters, the Court has to find a fair balance between the competing interests of the individual and of the community as a whole.26 The Court has established that the removal of a non-national family member is “incompatible with Article 8 only in exceptional circumstances.”27 It has highlighted several factors that shall be taken into consideration when assessing “the particular circumstances of the persons involved and the general interest”.28 One such factor is the principle of best interest of the

24 Violations were found in: Nunez v. Norway App no 5597/09 (28 June 2011); Butt v. Norway App no 47017/09 (04 December 2012); and Kaplan and others v. Norway App no 32504/11 (24 July 2014). Article 8 was not considered violated in Darren Omoregie and others v. Norway App no 265/07 (31 July 2008) and in Antwi and others v. Norway App no 26940/10 (14 February 2012). 25 This was the key issue in Nunez v. Norway; Kaplan and others v. Norway; Antwi and others v. Norway; and in Darren Omoregie and others v. Norway. 26 Cf Nunez v. Norway para. 68. 27 Ibid [70]. 28 Ibid, in which the Court stated that: Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (...) Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious...

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child, as embedded in CRC Article 3 no. 1.29 The importance of integrating the best interest of the child when interpreting Article 8 ECHR, was formulated in the following way by the Grand Chamber in its 2014 judgment in the case Jeunesse v. the Netherlands: Where children are involved, their best interests must be taken into account … On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance … Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it.30

The approach of integrating the principle of the best interest of the child into the interpretation of the ECHR is in conformity with what the Court has stated on several occasions, namely that: The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties (…), of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights(…).31

This methodological approach helps to avoid a situation where national authorities face conflicting international obligations. However, issues that involve more than one human rights instrument present national authorities with genuine challenges; not only do national authorities need to balance individual rights and community interests, but they also have to balance different international obligations. The recent cases against Norway go some way in suggesting that this is an area where several branches of the Norwegian government (the legislator, courts and public administrative bodies) struggle to find the correct balance. The fact that Norway

29 Art 3 no. 1 CRC states the following: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 30 Jeunesse v. the Netherlands App no 12738/10 (03 October 2014) [GC], para 109. 31 Neulinger and Shuruk v. Switzerland App no 41615/07 (06 July 2010 [GC] para 131.

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through the Human Rights Act has given CRC the same formal status in the domestic legal order as the ECHR, provides a solid legal basis for domestic actors to take a similar approach on the domestic level as the ECtHR takes on the international level.32 The principle of the best interest of the child was set down on constitutional level in 2014, in the new section 104 of the Constitution, and recent Supreme Court practice shows that this has contributed to a strengthening of the weight that is attached to the children’s situation within the legal reasoning.33 By explicitly including this principle, a direct link to CRC Article 3 no. 1 is established on constitutional level. Further, a provision on the right to private and family life (similar to Article 8 ECHR), was included in the new section 102 of the Constitution in 2014. Even though the ECtHR’s case law will continue to be important when for instance courts are dealing with issues in the field of immigration that involve children, the new constitutional provisions have led to a situation where such issues, in the domestic sphere, have to be assessed within a constitutional framing. In Norway, there is recurring criticism of the role played by the ECHR and the ECtHR in the legal order. The main argument put forward is that the Convention has led to a situation where national and international courts are gaining power at the expense of the Parliament.34 Especially in the aftermath of cases where the Court has ruled against Norway, critical voices have gained momentum. This has particularly been so when national legislation as such has been considered to be in breach of the ECHR, for instance when the ECtHR ruled that the Norwegian prohibition of political advertising on television violated Article 10.35

32 In doing so, the interpretative practice from the UN Committee on the Rights of the Child, for instance its General Comment no. 14 from 2013 on the best interests of the of the child, needs to be taken carefully under consideration. 33 Rt. 2015 p 93 [“Maria”] and Rt. 2015 p 155 [“Rwanda”]. However, this development is not totally clear, see Rt. 2015 p 1388 [“Internflukt”]. 34 This is part of the rationale that lies behind the fact that Norway has not yet ratified Optional Protocol no 12 to the ECHR, as explained in part 2.1. 35 See for instance Anine Kierulf “Taking Judicial Review Seriously. The Case of Norway” in Series of dissertations submitted to the Faculty of Law, University of Oslo no 75 (2014) 33 with further references.

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5 Interpreting Human Rights after the Constitutional Reforms in 2014 The Human Rights Commission (“Menneskerettighetsutvalget”) proposed in its report to maintain the former section 110 c paragraph 1, as a new section 92, which stated: “It is the responsibility of the authorities of the State to respect and ensure human rights.”36 However, during the political negotiations that led to the adaption of the new chapter on human rights, a number of compromises were made, and it was decided to make some amendments. This resulted in section 92 being adopted, requiring the State to “respect and secure human rights as they are formulated in this Constitution and in conventions on human rights that are binding for Norway.” This wording, where explicit references are made to human rights as they are “formulated in this Constitution” and to “conventions on human rights that are binding for Norway”, has led to new questions of interpretation in the field of human rights. This is particularly so with regard to the relationship between human rights that are part of the Constitution, on the one hand, and other human rights, on the other hand. Section 92 can be interpreted in different ways. One possibility is to argue that the provision does not imply that all international human rights conventions to which Norway is a party have the status of constitutional norms, but rather that the Constitution itself, as it is formulated today, defines the human rights that have acquired a constitutional level. Another possibility is to argue that section 92 sets down that all human rights conventions to which Norway is a party have the same formal grounding on constitutional level. While the former section 110 c was clearly built on a dualist approach towards human rights standards, as it in its second paragraph explicitly referred to implementation of human rights treaties through law, the new section 92 does not make any reference to national implementation. It generally refers to conventions on human rights to which Norway is a party. This interpretation would imply that section 92 establishes a monist legal system in Norway in the field of human rights. This understanding would significantly improve the formal legal status of human rights conventions to which Norway is a party, but which have not yet been incorporated into the internal legal order, such as the UN Convention on the Rights of Persons with Disabilities (CRPD).37 The formal 36 Document 16 (2011-2012) 66 ff. The Commission proposed to omit the second paragraph of section 110 c. 37 CRPD was ratified by Norway in 2013.

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status of the ECHR would more or less be the same, due to the fact that it already has a strong formal legal status within the domestic legal order through the Human Rights Act. This interpretive question was brought up in a plenary Supreme Court case in December 2016. Here, the Court concluded unanimously that section 92 should not be interpreted as a provision that introduces constitutional status for all human rights conventions to which Norway is a party. Rather, it shall be interpreted as a provision that obliges all branches of government to respect and secure human rights at the level they have been implemented into Norwegian law, thus referring to the dualist approach.38 Through this, the most restrictive interpretation was chosen. The Court was of the opinion that if the intention of the Parliament had been to introduce monism in the field of human rights, it should have been made clear in the relevant preparatory documents. Another question relates to how the Supreme Court will deal with regional and international interpretative practice when interpreting the Constitutional provisions on human rights. In January 2015, the Supreme Court decided a case that involved both the right to private and family life and the principle of the best interest of the child, as protected in the Constitution in sections 102 and 104, as well as in Article 8 ECHR and in Article 3 no. 1 CRC.39 The Supreme Court stated the following with regard to its interpretative method: I take the view that section 102 must be interpreted in light of the norms in international law that have served as its model. However, future practice from the international enforcement mechanisms shall not have the same status of precedent when interpreting the Constitution as it has when interpreting the corresponding convention provisions. According to our Constitution, it is the Supreme Court – and not international enforcement mechanisms – that is vested with the responsibility to interpret, clarify and develop the Constitution’s human rights norms.40

38 Cf Supreme Court Case with reference HR-2016-2554-P, issued 16 December 2016 at para 70 and para 140. 39 Cf Supreme Court Case with reference HR-2015-00206-A, issued 29 January 2015. 40 Our translation. Original wording: «Jeg legger til grunn at § 102 skal tolkes i lys av de folkerettslige forbildene, men likevel slik at fremtidig praksis fra de internasjonale håndhevingsorganene ikke har samme prejudikatsvirkning ved grunnlovstolkningen som ved tolkningen av de parallelle konvensjonsbestemmelsene: Det er etter vår forfatning Høyesterett – ikke de internasjonale håndhevingsorganene – som har ansvaret for å tolke, avklare og utvikle Grunnlovens menneskerettsbestemmelser.».

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In this statement, the Supreme Court seems to introduce a reservation with regard to the weight that will be attached to the practice from regional and international supervisory bodies in its interpretation of constitutional provisions on human rights. In the aftermath of this case, the potential situation of a conflict between how the Supreme Court interprets the constitutional norms on human rights and how the same human rights are interpreted in regional and international supervisory bodies, has been discussed.41 In the concrete case where the statement was made, however, the Supreme Court took practice from the ECtHR and the Committee on the Rights of the Child carefully into consideration. Its decision offered stronger protection for the best interest of the child than in previous cases in the field of immigration. 6 Concluding Comments The ECHR has been the engine that has given momentum to human rights articulation and adjudication in Norway. Since 1999, the Convention has formally been granted an important legal status within the domestic legal order. Statistics demonstrating the amount of case law, show that the incorporation of the ECHR into the domestic legal order has resulted in a considerable rise in the Convention's occurrence before national courts. To avoid situations where laws are violating the Convention, the ECHR is also a central legal source and argument in legislative processes. The role played by the Convention within the Norwegian legal order is, however, not without controversy. While many see the ECHR as a necessary and crucial tool for the protection of minorities against the rule of the majority, opponents argue that the ECHR and judicial review carried out by courts have led to a situation where national and international courts gain power at the expense of the Parliament. Debates regarding power relations between the judiciary and the parliament has been recurring. For instance, they surfaced when it was proposed to include some economic, social and cultural rights into the Constitution as part of the constitutional reform in 2014.

41 Cf Frode Elgesem Høyesterett tar grep om de nye rettighetene i Grunnloven in Aftenposten 19.2.2015 p 14.

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Vibeke Blaker Strand and Kjetil Mujezinović Larsen

Given the longstanding position of the ECHR within the Norwegian legal order, it can be argued that the 2014 amendments of the Constitution do not affect the role of the ECHR. However, the ECHR does not exist in isolation from other human rights sources. They intersect and influence each other, as we have seen with regard to the interplay between the right to private and family life in Article 8 ECHR and Article 3 CRC on the best interest of the child. The constitutional amendments provide a broader basis for human rights within the domestic legal order in Norway. This has led to a new human rights landscape that needs to be developed further, and where the ECHR will continue to play a key role.

44

The Role of the ECtHR in the Polish Legal Order Dorota Miler

Abstract In this article, the impact of the ECtHR’s judgments on Polish law is presented through examination of chosen case law. The discussion starts by depicting the influence of the ECHR and ECtHR’s rulings on Polish constitutional law and the judicial interpretation of Polish law. An analysis of chosen measures implemented in Poland to abide by rulings of the Court follows. These are presented on example of cases involving criminal proceedings and post-communist issues. The subsequent section addresses issues that arose due to misuse of discretion by public servants, including the right to marry of a detainee or a prisoner and the refusal to terminate of a pregnancy in spite of conditions permitting pregnancy termination. The source of these difficulties is not the law itself, but its enforcement and the way in which human rights are balanced against other rights protected by the legislation. I. Introduction Poland signed the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention of Human Rights, hereinafter as the ECHR or the Convention) on 26 November 1991 and ratified it on 1 January 1993.1 Since 1 May 1993, the European Court of Human

1 accessed 25 September 2017; Dz. U. z 1994 r. Nr 118, poz. 565. See also T Astramowicz-Leyk, Międzynarodowe systemy ochrony praw i wolności człowieka (Olsztyn, OSW, 2009) 44.

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Rights in Strasbourg (the ECtHR or the Court) has had jurisdiction over Poland.2 Within the first 12 years of the ECtHR’s jurisdiction over Poland, 1099 judgments concerned claims against Poland. Of those judgments, in 925 cases at least one violation was found. At the end of 2015, about 39 % of the violations found in judgments against Poland by the ECtHR infringed Art. 6 of the Convention due to excessive and lengthy proceedings. Breaches against the right to liberty and security (Art. 5 of the Convention) made up 27 % and infringement of the right to a a fair trial (Art. 6 of the Convention) constituted another 9 % of all the violations. Almost 10 % of the violations were based on disregard of the right to respect private and family life (Art. 8 of the Convention); while the remaining 15% transgress other provisions of the ECHR. Both the number of judgments made against Poland and the number of cases which include at least one violation, have decreased in recent years. For example, in 2015 there were only 29 judgments against Poland and in only 20 of them was a violation identified. This might be a result of Poland adopting general measures to implement the rulings of the Court. However, as will be shown, prevention of future violations requires not only amending currently binding law, but also educating authorities about exercising their discretion in a manner that respects human rights. Providing effective mechanisms that will allow balancing rights of involved individuals might be especially important in cases concerning sensitive issues, such as a termination of a pregnancy and a doctor’s right to adduce the conscious clause. In this article, the impact of the ECtHR’s judgments on Polish law is presented through examination of chosen case law. The discussion starts by depicting the influence of the ECHR and ECtHR’s rulings on Polish constitutional law and the judicial interpretation of Polish law. An analysis of chosen measures implemented in Poland to abide by rulings of the Court follows. These are presented on example of cases involving criminal proceedings and post-communist issues. The subsequent section addresses issues that arose due to misuse of discretion by public servants, including the right to marry of a detainee or a prisoner and the refusal to terminate a pregnancy in spite of conditions permitting abortion. The source of these 2 Dz. U. z 1993 r. Nr 61, poz. 286. See also M Matysiak, ‘Polska w systemie ochrony praw człowieka Rady Europy’ in L Koba, W Wacławczyk (eds), Prawa człowieka, Wybrane zagadnienia i problemy (Warszawa, Wolters Kluwer Polska, 2009) 90.

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difficulties is not the law itself, but its enforcement and the way in which human rights are balanced against other rights protected by the legislation. II. Impact of the ECtHR’s Judgments on Polish Constitutional Law and Judicial Interpretation of Polish Law The number of violations identified by the ECtHR might be surprising if one considers the impact the ECHR has had on constitutional law and judicial interpretation of law in Poland. The Polish Constitution is relatively young as it came into force on 2 April 1997.3 It adopted international standards of human rights provided under inter alia the ECHR, Universal Declaration of Human Rights, International Convention on Civil and Political Rights and International Convention on Economic, Social and Cultural Rights.4 Chapter II of the Constitution (containing a total of 56 articles) regulates freedoms, rights and obligations of persons and citizens. Human rights provided under the Convention are reflected, e.g. under Art. 38 of the Polish Constitution providing the protection of human life, Art. 45(1) guaranteeing the right to a fair trial, and Art. 47 protecting private and family life. Furthermore, the Polish Constitutional Tribunal is obliged to take into account the entire ECtHR’s case law when considering the conformity of law with the Polish Constitution and international conventions ratified by Poland. The Tribunal confirmed this on 11 December 2011 by stating that: the necessity to take into consideration the existence of the ECtHR’s judgments in the course of actions of internal authorities obligates also the Constitutional Tribunal to apply – within the frame of constitutional control – the principles and methods of interpretation leading to mitigation of possible collisions between the standards resulting from applied Polish law and those shaped by the ECtHR (…) and adopting such evaluation so as to take into account the standards developed in the ECtHR’s judgments, on the grounds of

3 Dz.U. z 1997 r., Nr 78 poz. 483 with changes. 4 M Masternak-Kubiak, ‘Konstytucyjna zasada ochrony praw jednostki a odpowiedzialność państwa za prawa człowieka w stosunkach międzynarodowych’ in Z Kędzia, A Rost (eds), Współczesne wyzwania wobec Praw Człowieka w świetle polskiego prawa konstytucyjnego (Poznań, Wydawnictwo Naukowe UAM, 2009) 227; W Skrzydło, ‘Konstytucyjny katalog wolności i praw jednostki’ in M Chmaj, L Leszczyński i inni (eds) Konstytucyjne wolności i prawa w Polsce, Zasady ogólne, Tom I (Krakow, Zakamyczek, 2002) 42, 46.

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the Convention for the Protection of Human Rights and Fundamental Freedoms (…) in their fullest scope.5

In addition, the ECHR and the rulings of the ECtHR have a significant impact on the interpretation of Polish law in creating standards of human rights protection. In 1994, three years after ratifying the Convention and a year after Poland was placed under the jurisdiction of the ECtHR, the Polish Supreme Court stated that ‘since the Polish accession to the European Council, case law of the ECtHR in Strasbourg can and should be considered during the interpretation of Polish law.’6 Under Polish law the ECHR is ‘an international agreement ratified upon prior consent granted by statute’ which has ‘precedence over statutes if [it] cannot be reconciled with the provisions of such statutes’ and as such, can serve as legal grounds for starting a legal procedure in front of a Polish court (Polish Constitution, Art. 91(1) and (2)).7 The analysis of the influence of the Convention and the judgments of the ECtHR on Polish constitutional law shows that, at least theoretically, the Polish legal system is built on the same values that are protected under the ECHR and by the ECtHR. Therefore, the number of violations found in judgments against Poland may surprise. These violations indicate that norms adopted in specific statutes disregard not only the international human rights standards but also the Constitution – the supreme law of the Republic of Poland (Art. 8 of the Polish Constitution). Enforcement of these norms proves significant discrepancies existing within the Polish legal system. III. Measures Taken by Poland Art. 46(1) of the Convention obliges Poland to undertake and abide by the final judgment of the ECtHR in any case to which Poland is a party.8 5 Wyrok Trybunału Konstytucyjnego z dnia 11 grudnia 2012 r., sygn. akt K 37/11, Dz. Ust. z 2012 r. poz. 1447 pkt III 3.1.3. See also Wyrok Trybunału Konstytucyjnego z dnia 18 października 2004 r., sygn. P 8/04, OTK ZU nr 9/A/2004, poz. 92, pkt III 2.4; Wyrok Trybunału Konstytucyjnego z dnia 19 lipca 2011 r., sygn. K 11/10, OTK ZU nr 6/A/2011, poz. 60, pkt III 3.3. 6 Orzeczenie Sądu Najwyższego z dnia 11 stycznia 1995 r., sygn. akt III ARN 75/94. 7 See also Masternak-Kubiak, ‘Konstytucyjna zasada’ 228-229. 8 Only chosen legal aspects of the hereinafter discussed ECtHR’s cases are presented. To see all the legal issues raised by the Court, see the particular rulings.

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Therefore, judgments of the Court and violations identified in them have forced the Polish legislature to adopt measures that prevent future infringement of the ECHR. Most violations identified by the ECtHR were in cases involving law of criminal procedure and penitentiary law. Therefore, legislation in these areas of law underwent the most change. However, the rulings of the ECtHR also influenced other areas of Polish law, e.g. assisting regulation of post-communist issues. Notably, some standards clarified by the ECtHR, such as legal termination of a pregnancy under particular circumstances, have encountered significant opposition in the Polish Parliament and society. A. Criminal Procedure The ECtHR’s judgments inspired the Polish Parliament to modify the Code of Criminal Procedure.9 The initial cases brought to the ECtHR were decided by Polish courts under the Code of Criminal Procedures adopted on 19 April 1969.10 This Code was replaced by the Code of Criminal Procedure (in Polish: ‘Kodeks Postępowania Karnego’ translated and abbreviated as KPK or the Code) on 1 September 1998.11 Although, the new Code implemented some of the ECtHR’s judgments, it has since been systematically amended to comply with the ECHR. The first violations identified under Polish criminal law were delays in bringing Polish criminal law and the law of criminal procedure to the ECHR’s standards. However, most of these laws were already amended in the 1990 s.12 Throughout the next decade, most of the judgments imposing further changes to Poland’s human rights legislation concerned pre-trial detention and its duration.13 These legal issues, as well as problems with

9 The changes have been often simultaneously required by the Polish Constitutional Tribunal; see also P Hofmański, S Zabłocki, ‘Pozbawienie wolności w toku procesu karnego. Wybrane aspekty konstytucyjne i prawnomiędzynarodowe’ in J Skorupka (ed), Rzetelny Proces Karny. Księga jubileuszowa Zofii Świdy (Warszawa, Wolters Kluwer, 2009) 513. 10 Dz.U. 1969 nr 13 poz. 96 with changes. 11 Dz.U. 1997 nr 89 poz. 555 with changes. 12 P Hofmański/L Garlicki (ed), Konwencja o Ochronie Praw Człowieka i Podstawowych Wolności Komentarz do Artykułów 1-18, Tom I (Warszawa, Beck, 2010) 157. 13 Ibid 157, 234.

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unreasonably lengthy criminal proceedings, still recur in the ECtHR’s judgments against Poland today.14 Therefore, the cases chosen for the analysis highlight these difficulties but also describe some changes made to Polish law in the first decade. A number of cases heard by the ECtHR consider violations of liberty and security of persons under Art. 5 of the Convention, especially for pretrial detention. A violation of Art. 5(1) of the Convention was found in e.g. Ambruszkiewicz v Poland15 due to insufficient grounds for applying detention on remand and failure to adopt any other, less intrusive, preventive measures available under Polish criminal law.16 Mr Ambruszkiewicz was held in custody for over two months ‘to guarantee the proper conduct of the criminal proceedings’ and to prevent him from absconding,17 as he had left the courtroom without the court’s authorization. The ECtHR found ‘neither the complexity of the case nor [Mr Ambruszkiewicz’s] potential sentence would have made him more likely to abscond’ and ‘nothing in [Mr Ambruszkiewicz’s] background (…) might suggest that he had been likely to obstruct the proper course of the proceedings.’18 The current Code stipulates that pre-trial detention can be ordered only when no other preventive measure is sufficient (Art. 257 § 1 KPK)19 and requires an explanation as to why other preventive measures were insufficient (Art. 251 § 3 KPK). The recent amendments of the Code of Criminal Procedure, which came into force on 1 July 2015, further clarify the grounds for detention on remand to comply with the ECtHR’s rulings. For example, a pre-trial detention will not be enforced if an accused is charged with a crime for the commission of which he may be liable to a statutory maximum sentence of two years imprisonment; rather than, as it was before 2015, one year of imprisonment.20 Moreover, Art. 258 KPK, which regulates conditions for applying preventive measures, changed its mean-

14 15 16 17 18 19

Ibid 222. Ambruszkiewicz v Poland App no 38797/03 (ECtHR, 4 May 2006). Ibid, paras 32-33. Ibid, paras 7, 29. Ibid, para 30. See also A Kiełtyka, ‘Środki zapobiegawcze w polskim procesie karnym a ochrona praw człowieka’ in E Dyni, C P Kłaka (eds), Europejskie Standardy Ochrony Praw Człowieka a Ustawodawstwo Polskie (Rzeszów, Wydawca Mitel, 2005) 245-246. 20 Ustawa z dnia 27 września 2013 o zmianie ustawy – Kodeks postępowania karnego oraz niektórych innych ustaw (Dz.U. z 2013 r. poz. 1247), Art. 1 pkt 75. That is

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The Role of the ECtHR in the Polish Legal Order

ing to emphasize that detention on remand is only one of many preventive measures; instead of, as it was earlier, the main measure applied if the conditions for applying preventive measures are met.21 Further, the motion’s content and the grounds for detention on remand during preparation proceedings were tightened (Art. 250 § 2 a KPK).22 Another provision of the Convention namely, Art. 5(4) provides that a person deprived of liberty ‘by arrest or detention’ has a right to ‘take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’ This right was violated in e.g. Włoch v Poland,23 where the Court identified the lack of ‘fundamental guarantees of procedure applied in matters of deprivation of liberty’ and failure to provide a speedy review of the lawfulness of detention on remand.24 The first finding was based on a violation of the principle of equality of arms.25 In this case, neither the accused nor his lawyer was entitled to attend a court session during which the appeal from detention on remand order was considered26 and neither he nor his lawyer could access the case file while advancing arguments against the detention order.27 Further, the judicial decision concerning the lawfulness of continued detention of Mr Włoch was not ‘speedy’ as it was given by the Włocławek Regional Court some three months after a prosecutor ordered the detention.28

21 22 23 24 25 26 27 28

with the exception of when a person was caught committing a crime (Art. 259 § 3 KPK). Ibid. Ibid, Art. 1 pkt 70. Wloch v Poland App no 27785/95 (ECtHR, 10 May 2011) [Wloch]. Ibid, paras 131, 136. Ibid, para 124; see also Klamecki v Poland App no 31583/96 (ECtHR, 3 April 2003) [Klamecki]; Niedbała v Poland App no 27915/95 (ECtHR, 4 July 2000) [Niedbała]. Wloch, para 129; however, in this case, by way of exception, the Cracow Regional Court allowed the accused’s lawyers to address the court, but asked him to leave before the prosecution made further submissions. Ibid, para 130. Ibid, paras 129, 133, 135; in an earlier case, Klamecki, ECtHR stated that ‘a prosecutor did not offer these necessary guarantees because the prosecution authorities not only belonged to the executive branch of the State but also concurrently performed investigative and prosecution functions in criminal proceedings and were a party to such proceedings. Furthermore, it has considered that the fact that the prosecutors in addition acted as guardian of the public interest could not by itself confer on them the status of “officer[s] authorised by law to exercise judicial pow-

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The current Code provides, inter alia, the accused and his defender with access to case files during a court proceedings (Art. 156 § 1 KPK). However, the regulation concerning the right to access and copy case files by a defender during the preparation procedure was criticized because the secrecy of files was given priority over the right of a defender to a defense. Hence, when considering the presentation of arguments, the defender was put in a situation apparently worse than the prosecution.29 Further, before 28 August 2009, the Code did not explicitly require providing reasons for limiting this right during the preparation proceedings and provided the person leading the investigation with unlimited discretion to grant or refuse access to the case files.30 Directed by the ECtHR’s case law, the Polish Constitutional Tribunal found these regulations contradictory to Polish law.31 Therefore, an amendment that came into force on 2 June 2014, provides equality of arms by guaranteeing, inter alia, the accused and his defenders the right to access case files during the preparation proceedings. An exception is allowed where there is a need to secure the correct track of the proceedings or to protect an important state interest (Art. 156 § 5 KPK).32 Further, since 2 June 2014, if there is a motion to detain or to extend the pre-detention, the case files, in the part relating to the motion, are speedily made accessible to the accused and his defender(s) (Art. 156 § 5 a KPK). The lack of this privilege for the detainee was earlier criticized both by Polish scholars and by the ECtHR.33 Additionally, since 1 July 2003, rights of a detainee during appeal hearings have been increased. For instance, a court of appeal, on the motion of the accused that is detained, orders bringing the accused to the appeal hearing unless

29

30 31 32 33

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er”’ (para 105). See also Niedbała; Dacewicz v Poland App no 34611/97 (ECtHR, 2 July 2002); M Wąsek-Wiaderek, ‘Dostęp do Akt Sprawy Oskarżonego Tymczasowo Aresztowanego i Jego Obrońcy w Postępowaniu Przygotowawczym – Standard Europejski a Prawo Polskie’ (2003) 3-4 Palestra 55, 58. Ibid, 65; J Skorupka, ‘Stosowanie i przedłużanie tymczasowego aresztowania w postępowaniu przygotowawczym’ (2006) 12 Prokuratura i Prawo 109, 119-121; M A Nowicki, Wokół Konwencji Europejskiej. Komentarz do Europejskiej Konwencji Praw Człowieka (Warszawa, Wolters Kluwer, 2013) 503-504. See Wąsek-Wiaderek, ‘Dostęp do Akt Sprawy’ 65. Hofmański/Garlicki, Konwencja o Ochronie 214-215. The person leading the preparation proceedings orders the access. Ustawa z dnia 16 lipca 2009 o zmianie ustawy – Kodeks postępowania karnego (Dz. U. z 2009 r. Nr 127 poz. 1051), Art. 1; Skorupka, ‘Stosowanie i przedłużanie’ 122. Wąsek-Wiaderek, ‘Dostęp do Akt Sprawy’ 66, 69-70.

The Role of the ECtHR in the Polish Legal Order

the court decides that the presence of the accused’s defender is sufficient.34 The court must instruct the accused of his right to make such a motion. If the accused does not have a defender, the court assigns a public defender to him (Art. 451 KPK). 35 In order to comply with the requirement of ‘speediness’ of the court’s decision on lawfulness of detention under the ECHR, the amendment of the Code that came in force on 1 July 2015 provides that appeals against an order of pre-detention must be reviewed by a court speedily. This means ‘no later than within 7 days after the appeal with the necessary case files were handed over to the court’ (Art. 252 § 3 KPK).36 Moreover, the current Code of Criminal Procedure satisfies the requirement that a person deprived of liberty is to be brought before a ‘judicial power’ by providing that only a court, not a prosecutor, can order pre-detention (Art. 250 § 1 KPK).37

34 According to an amendment that came into force on 1 July 2015, an accused has a right to participate in the court hearing; a court may oblige the accused to take part in the hearing. The amendment from 2003 was induced by, inter alia, the ECtHR’s ruling in Belziuk v Poland App no 45/1997/829/1035 (ECtHR, 25 March 1998), where the Court found ‘a violation of Art. 6 § 1 taken in conjunction with Art. 6 § 3(c) of the Convention,’ as Mr Belziuk could not take part in the appeal hearing, as the court did not agree to bring him from prison, there was no lawyer acting on his behalf and no one else represented his interests at the appeal. 35 Ustawa z dnia 10 stycznia 2003 r. o zmianie ustawy – Kodeks postępowania karnego, ustawy – Przepisy wprowadzające Kodeks postępowania karnego, ustawy o świadku koronnym oraz ustawy o ochronie informacji niejawnych (Dz. U. z 2003 r. Nr 17 poz. 155) Art. 1, pkt 185. The presence of a detainee during an appeal from a detention order is not separately regulated. 36 Ustawa z dnia 27 września 2013 o zmianie ustawy, Art. 1 pkt 72(b). This change came into force on 1 July 2015. Before it came into force, the appeal needed to be reviewed speedily, but there was no deadline for the court. 37 This change was introduced to the previous Code of Criminal Procedure on 29 June 1996 as a result of the ratification of the ECHR by Poland and the ECtHR’s rulings Niedbała and Baranowski v Poland App no 28358/95 (ECtHR, 28 March 2000) [Baranowski]. In the first case, the Court stated that prosecutor had no judicial statute under Polish law, was a party of the criminal proceedings and was subject to the supervision of the executive branch of the Government; therefore prosecutor’s decisions did not meet the standard of independence required by Art. 5 § 3 of the Convention (Niedbała, paras 52-55). In the second case, the Court found, inter alia, that detaining a person ‘for an unlimited and unpredictable time and without his detention being based on a concrete legal provision or on any judicial decision is in itself contrary to the principle of legal certainty’ (Baranowski, para 56). See also Hofmański/Garlicki, Konwencja o Ochronie 202-203.

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However, the most problematic for Polish authorities seems to be compliance with Art. 5 (3) of the Convention, particularly with its part stating that ‘everyone arrested or detained (…) shall be entitled to trial within a reasonable time or be released pending trial.’ This issue was noticed by bodies concerned with the adoption of human rights in Poland. For example, the Committee of Ministers of the Council of Europe adopted a resolution on 6 June 2007, in which it encouraged Poland to, inter alia, continue examining and implementing further measures to limit the time of detention on remand. They also encouraged Poland to undertake measures to increase awareness among judges and prosecutors with regard to detention on remand and the possibility of adopting alternative preventive measures.38 The Council of Europe’s Commissioner for Human Rights released a ‘Memorandum to the Polish Government’ on 20 June 2007 in which it urged Poland to undertake measures aimed at preventing excessive length of criminal procedures and increasing dissemination of the ECtHR’s rulings.39 Also, Polish scholars found that judgments made in cases against Poland were often caused by inadequate adoption of law and persistent inaction of Polish prosecutors and judges.40 In that respect, in February 2009, the ECtHR observed that:

The solution binding before 1996 was criticized in the literature, see e.g. B Gronowska, ‘Polskie Rozwiązania Dotyczące Zatrzymania i Aresztu Tymczasowego w Świetle Uniwersalnych Standardów Ochrony Wolności i Bezpieczeństwa Osobistego’ in J Skupiński (ed), Standardy praw człowieka z polskie prawo karne (Warszawa, Instytut Nauk Prawnych PAN, 1995) 124; Z Świada, ‘Podstawy i Tryb Stosowania Tymczasowego Aresztowania w Świetle Reguł Prawa Międzynarodowego, Obowiązującego Kodeksu Postępowania Karnego i Projektu Zmian Kodeksu Postępowania Karnego z 2000 Roku’ in S Stachowiak (ed), Współczesny polski proces karny Księga ofiarowana Profesorowi Tadeuszowi Nowakowi (Poznań, Biuro Usługowo-Handlowe „Printer”, 2002) 182. In preparation proceedings, a prosecutor can apply other than detention preventive measures (Art. 250 § 4 KPK). 38 Interim Resolution CM/ResDH(2007)75 concerning the judgments of the European Court of Human Rights in 44 cases against Poland (see Appendix II) relating to the excessive length of detention on remand; accessed 25 September 2017. 39 Commissioner for Human Rights accessed 25 September 2017. 40 See e.g. M Wąsek-Wiaderek, ‘Standard “Niezwłoczności” Doprowadzenia Osoby Zatrzymanej przed Sędziego i Prawo do “Osądzenia w Rozsądnym Terminie albo Zowlnienia na Czas Postępowania” w Świetle Art 5 § 3 Europejskiej Konwencji Praw Człowieka’ in A Dębiński, A Grześkowiak, K Wiak (eds), Ius Et Lex Księga

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the violation of the applicant’s right under Article 5(3) of the Convention originated in a widespread problem arising out of the malfunctioning of the Polish criminal justice system which has affected, and may still affect in the future, as yet unidentified, but potentially a considerable number of persons charged in criminal proceedings.41

Furthermore, ‘numerous cases have demonstrated that the excessive length of pre-trial detention in Poland reveals a structural problem consisting of a practice that is incompatible with the Convention.’42 In many cases the ECtHR found that domestic courts limit reasoning for extending pre-trial detention ‘to paraphrasing the grounds for detention provided for by the Code of Criminal Procedure’ and ‘failed to envisage the possibility of imposing other preventive measures expressly foreseen by Polish law to secure the proper conduct of the criminal proceedings.’43 This violation was identified for example in the case Kudła v Poland.44 In this case, the person in detention was deprived of the right to ‘trial within a reasonable time’ (Art. 5 § 3),45 to a ‘hearing within a reasonable time’ (Art. 6 § 1),46 and to ‘an effective remedy before a national authority’ enforcing this person’s right to a ‘hearing within a reasonable time,’ as guaranteed by Art. 6 § 1 of the Convention’ (Art. 13).47 During the 9 plus years of criminal proceedings, Mr Kudła spent a total of four years and thirteen days in detention (two years, four months and three days during court proceedings).48 Initially, the detention was grounded in the suspicion that Mr Kudła committed the crimes he was accused of and re-detention was reasoned by the fact that he could abscond. The ECtHR found that the reasons that could initially justify the detention and the re-detention became less relevant with passage of time and were not compelling enough to justify such

41 42 43 44 45 46 47 48

Jubileuszowa ku Czci Profesora Adama Strzembosza (Lublin, Wydawnictwo KUL, 2002) 511-514; J Skorupka, ‘Konstytucyjny i konwencyjny standard tymczasowego aresztownia’ (2007) 7 Państwo i Prawo 57, 66. Kauczor v Poland App no 45219/06 (ECtHR, 3 February 2009), paras 58, 60 [Kauczor]. See also Hilgartner v Poland App no 37976/06 (ECtHR, 3 March 2009). Ibid. Kauczor, para 59. Kudła v Poland App no 30210/96 (ECtHR, 26 October 2000) [Kudła]. Ibid, paras 116-117. Ibid, para 131. Ibid, para 160. Ibid, paras 105, 107, 129; during court proceedings: from 4 October 1993 to 1 June 1995 and from 22 February to 29 October 1996.

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a long detention.49 Nor could the complexity of the case justify the length of the proceedings.50 Further, the Court stressed the lack of ‘effective remedy before a national authority for an alleged breach of the requirement to hear a case within a reasonable time.’51 To prevent unreasonably long detention during criminal proceedings, the current Code of Criminal Procedure provides that during preparatory proceedings, a court can order a maximal detention duration of 3 months. On the application of a prosecutor, this can be extended to a maximum of 12 months if, due to the particular circumstances of the case, the preparatory proceedings could not be completed within the 3 months (Art. 263 § 1 and § 2 KPK). The length of detention before the first ruling of the court of first instance cannot exceed 2 years (Art. 263 § 3 KPK). Only a court of appeal may extend this time-span under restricted circumstances (Art. 263 § 4 KPK).52 Since 22 January 2009, the duration of the detention can no longer be extended ‘because of other important obstacles whose removal

49 Ibid, paras 114-115. Other examples of cases against Poland in which the Court found a violation due to not sufficient and not relevant grounds for unreasonable long period of detention on remand: Finster v Poland App no 24860/08 (ECtHR, 8 February 2011); Jabłoński v Poland App no 33492/96 (ECtHR, 21 December 2000) (the Court emphasized that alternative to detention preventive measures should have been considered); Klamecki; Michta v Poland App no 13425/02 (ECtHR, 4 May 2006); Piechowicz v Poland App no 20071/07 (ECtHR, 17 April 2012); Wozniak v Poland App no 29940/06 (ECtHR, 7 July 2009). For standards of sufficient length of detention on remand see Wąsek-Wiaderek, ‘Standard “Niezwłoczności”’ 506-507, 509, 512. 50 Kudła, para 130. 51 Ibid, paras 148, 152, 156. The Court stated that there was also no ‘opportunity of preventing or putting right the violations alleged against [Poland] before those allegations are submitted to the Court’ and, therefore, Mr Kudła could have not ‘obtain relief at national level for violations of their Convention rights before having to set in motion the international machinery of complaint before the Court.’ 52 Kauczor, para 27, the Court translated the relevant article: The pre-trial detention shall be extended beyond the period specified in paragraphs 2 and 3, only by the court of appeal in whose jurisdiction the proceedings are conducted, upon a motion from the court before which the case is pending, and at the investigation stage, upon a motion from the appellate prosecuting authorities. This can be done if deemed necessary in connection with a suspension of criminal proceedings, in connection with actions aiming at establishing or confirming the identity of the accused, prolonged psychiatric observation of the accused, prolonged preparation of an opinion of an expert, conducting evidentiary action in a particularly intricate case or conducting them abroad, or intentional protraction of proceedings by the accused.

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has not been possible.’53 Further, to provide effective remedies for an alleged breach of the requirement to hear a case within a reasonable time, the Act of 17 June 2004 on the complaint for breaching party’s right to have its case heard without undue delay in the preparatory proceedings conducted or supervised by a prosecutor and in judicial proceedings was adopted.54 As recommended by the ECtHR, this statute provides relief at the national level and regulates the rules and mechanisms of bringing and hearing complaints of persons whose cases, as a result of the prosecution’s or a court’s actions or lack thereof, were not heard without undue delay (Art. 1 § 1). The complaint needs to be lodged during the unduly delayed proceedings (Art. 5) and is heard by a court superior to the court where the proceedings are taking place (Art. 4 § 1). The ruling needs to be given within 2 months from the date the complaint was lodged (Art. 11). If the superior court finds an undue delay, a party may demand remedies in amount from 2.000 to 20.000 Polish złotych (about 500 to 5.000 Euros) (Art. 12 § 4). Additionally, in separate proceedings, a party can demand compensation from the State Treasury for damages suffered due to an undue delay in proceedings (Art. 15 § 1).55 The problems identified by the ECtHR inspired not only changes in law, but also provoked certain bodies to undertake activities to adopt the relevant provisions of the ECHR. In 2007, the Polish Council of Ministers adopted the ‘Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland.’56 Under this plan, on 19 July 2007 the Interministerial Committee for Mat-

53 54

55 56

See also A Trzcińska, P Wiliński, ‘Tymczasowe aresztowanie w świetle Konwencji o Ochronie Praw Człowieka i Podstawowych Wolności oraz Międzynarodowego Paktu Praw Obywatelskich i Politycznych’ in E Dyni and C P Kłaka (eds), Europejskie Standardy Ochrony Praw Człowieka a Ustawodastwo Polskie (Rzeszów, Wydawca Mitel, 2005) 259-260. Kauczor, para 27. Ustawa z dnia 17 czerwca 2004 r. o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki (Dz. U. z 2004 r. Nr 179 poz. 1843). Ineffective application of this legislation by Polish courts that refuse to award any compensation for proceedings unduly delayed was criticized by the ECtHR in case Zwoźniak v Poland App no 25728/05 (ECtHR, 13 November 2007). Ministerstwo Spraw Zagranicznych: < http://www.mfa.gov.pl/en/foreign_policy/ human_rights/european_court_of_human_rights/execution_judgments/ > accessed 25 September 2017.

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ters of the European Court of Human Rights was established that is responsible for, inter alia, proposing actions aimed at preventing violations of the ECHR and at adopting judgments made by the ECtHR.57 Every year the Committee prepares and publishes a report from the realization of the Ministry of Council’s Program in executing the ECtHR’s rulings in Poland.58 Further, the plan obligates the Polish Ministry of Justice to organize training for judges and prosecutors dedicated to discussing the ECtHR’s case law and to increasing awareness of violations identified by the ECtHR under Polish criminal law.59 These measures were welcomed by the ECtHR60 and resulted in Polish courts being more reluctant to apply pre-trial detention. The number of people being detained reduced rapidly in the last 15 years.61 At the same time, other preventive measures, such as bail or police supervision, is applied more often.62 B. Post-Communism Issues Poland inherited unresolved legal problems from the pre-1989 communist era. An example is the case of compensation for Poles forced to abandon their property in Poland’s former eastern territories after World War II. Poland obligated itself to provide them compensation for the property. However, Poland did not fulfill this duty.63 After 1989, claims of Poles that were moved to Poland could not be satisfied, in kind, under the legis-

57 Ibid. 58 Ibid. In the Report for the year 2015, the Committee itself admitted that the biggest group of the ECtHR’s rulings that still need to be enforced compromises violations due to excessive lengthiness of court proceedings. 59 See also M Indan-Pykno, ‘Changes of Polish Law and Polish Case-Law due to Implementations of the Judgments of the European Court of Human Rights in Strasbourg by Poland’ in M Sitek, G Dammacca, A Ukleja, M Wójcicka (eds), Europe of Funding Fathers: Investment in common future (Olsztyn, 2013) 447. 60 Kauczor, para 62. 61 In 2001 24,275 persons were detained on remand on average, while in 2016 there were only 4,158 such persons. More information: accessed 25 September 2017. 62 Kiełtyka, ‘Środki zapobiegawcze’ 246, 248; Skorupka, ‘Stosowanie i przedłużanie’ 117-118. 63 Broniowski v Poland App no 31443/96 (ECtHR, 22 June 2004), paras 11, 39ff [Broniowski]; The Poles were supposed to be compensated by deducting the value of the abandoned property from the price of real property purchased from the State

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lation in force at the time, as there was no property available for this purpose.64 The number of properties designated for repatriated persons was further limited under various legal acts between 1993 and 2001. In 2002 the Polish Constitutional Court found legal provisions limiting the possibility of receiving compensation unconstitutional.65 In response to this ruling, on 30 January 2004, the Act of 12 December 2003 on offsetting the value of property abandoned beyond the present borders of the Polish State against the price of State property or the fee for the right of perpetual use came into force, under which ‘the State’s obligations towards persons, who have already received some compensatory property under previous legislation were considered discharged.’66 The ECtHR considered this problem in the case Broniowski v Poland67 and found a violation of Art. 1 Protocol No. 1, as Poland failed to implement Mr Broniowski’s right to entitlement to compensatory property which he held under the law binding at the time he lodged his application. The Court found that Mr Broniowski’s ‘possessions’ comprised his ‘entitlement to obtain further compensatory property.’68 The ECtHR referred to a ruling of the Polish Supreme Court, in which the Polish Court was of the opinion that the law applicable prior to 2002 provided only theoretical and illusory right to compensation.69 Further, because of the restrictions imposed on the compensation right, this right could not be realized in practice and, therefore, unjustified in a democratic country. The law ‘was incompatible with the constitutional principle of maintaining citizens' confidence in the State and the ensuing rule of law.’70 The ECtHR found the procedure of implementing one’s compensatory right under the legislation binding before 2003 (auction bidding procedure) ineffective and inade-

64 65 66

67 68 69 70

or from the fee for ‘perpetual use’ (a maximum period of 99 years) of State property. Ibid, paras 22-23. Wyrok Trybunału Konstytucyjnego z dnia 19 grudnia 2002 r, sygn. akt K 33/02, Dz.U. z 2003 r. Nr 1 poz. 15; Broniowski, paras 79ff. Ustawa o zaliczaniu na poczet ceny sprzedaży albo opłat z tytułu użytkowania wieczystego nieruchomości Skarbu Państwa wartości nieruchomości pozostawionych poza obecnymi granicami Państwa Polskiego (Dz. U. z 2004 r. Nr 6 poz. 39). Broniowski, para 37. Ibid. Ibid, para 131. Ibid, para 172. Ibid, para 173.

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quate.71 The State, by reason of its obstructive actions, hindered Mr Broniowski from ‘the peaceful enjoyment of his possessions.’72 With regard to the Act introduced in 2003, under which repatriated persons were deprived of compensation property if they had been compensated in any degree, the Court stated that a State is allowed to expropriate property as well as to reduce the levels of compensation for such an expropriation however, ‘the amount of compensation granted for property taken by the State’ needs to be ‘reasonably related’ to its value.73 The Court found that the compensation received by the Mr Broniowski’s family under the earlier legislation, a mere 2 per cent of the abandoned property value, did not justify depriving him of any further compensation. The Court concluded that depriving Mr Broniowski of his compensation could not be justified by ‘general community interest pursued by the authorities.’74 The Court stated that the identified violation ‘resulted from a malfunction of Polish legislation and administrative practice which has affected and remains capable of affecting a large number of persons;’ therefore, the Court recommended setting up effective remedies.75 In response to this recommendation, the Polish Parliament adopted the Act of 8 July 2005 on realization of the right to compensation on account of leaving real property outside the current borders of the Republic of Poland.76 This Act entitles Polish citizens and their successors that were repatriated from prior territories of Poland or departed these territories as a result of World War II, to compensation for real property abandoned outside the Poland’s current boarders (Art. 1, 2, 4). The market value of the abandoned property is calculated on the basis of the current price of similar real property located in an adequate market area in Poland according to the conditions of the abandoned property at the day it was abandoned (Art. 11(1), (5)). Credit value of the abandoned property as well as the cash benefit amounts to

71 72 73 74

Ibid, para 181. Ibid. Ibid, para 186. Ibid, para 187. For an analysis of other issues considered by the Court in its ruling, see P Filipek, ‘Sprawa “Mienia Zabużańskiego” przed Europejskim Trybunałem Praw Człowieka’ Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego, vol. I, A.D. MMIII 162. 75 Broniowski, paras 189-194. 76 Ustawa z 8 lipca 2005 r o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami RP (o roszczeniach zabużańskich) (Dz. U. z 2005 r. Nr 169 poz. 1418).

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20 % of the value of these properties (Art. 13(2)). The deadline for submitting applications for compensation was set at 31 December 2008 (Art. 5). Steps taken to address the issues raised by the ECtHR and amendments of laws that violate the ECHR prove Poland's commitment to adjust to standards represented by the ECHR. Nevertheless, as pointed out by international and national bodies, there are still unresolved problems, mostly due to the manner of enforcing laws rather than to the content of legal norms themselves. However, due to the direct influence of the ECtHR's rulings on law changes in Poland, further improvements are expected. IV. Issues Raised by the ECtHR Not all violations identified by the Court have been addressed by Poland. Most of the unresolved problems regard Polish law of criminal procedure and the Polish penitentiary system, these are e.g. lack of effective criminal investigation,77 insufficient free legal advice for accused,78 unjustified restriction of contact between the accused and his family,79 inadequate medical care for prisoners and detainees80 and overcrowded prisons.81 Violations under Polish civil and administrative law were also found. Some of the violations that have already been identified by the ECtHR may keep recurring despite the Court’s rulings due to social resistance to standards promoted by the Court in Strasbourg. Not all violations found by the Court require amending Polish law. As shown in the following discussion of case law, there are problems with enforcing basic rights already provided under Polish legislation, exercising discretion by state authorities and accepting the ECtHR’s rulings by mem-

77 E.g. Byrzykowski v Poland App no 11562/05 (ECtHR, 27 June 2006); Dzieciak v Poland App no 77766/01 (ECtHR, 9 December 2008); Wiktorko v Poland App no 14612/02 (ECtHR, 31 March 2009). 78 E.g. Antonicelli v Poland App no 2815/05 (ECtHR, 19 May 2009); Kulikowski v Poland App no 18353/03 (ECtHR, 19 May 2009); Siałkowska v Poland App no 8932/05 (ECtHR, 22 March 2007); Staroszczyk v Poland App no 59519/00 (ECtHR, 22 March 2007). 79 E.g. Ferla v Poland App no 55470/00 (ECtHR, 20 May 2008); Kurkowski v Poland App no 36228/06 (ECtHR, 9 April 2013). 80 E.g. Kaprykowski v Poland App no 23052/05 (ECtHR, 3 February 2009); Mojsiejew v Poland App no 11818/02 (ECtHR, 24 March 2009). 81 E.g. Orchowski v Poland App no 17885/04 (ECtHR, 22 October 2009).

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bers of the society. Therefore, in some cases, solving issues that were raised by the Court requires long-term enforcement. A. Right to Marry In two cases the ECtHR identified violations of the right to marry regulated in Art. 12 of the Convention with regard to a detainee and a prisoner, who requested leave to contract a marriage in prison. Under Polish law, the competent authority (a court or a prison’s authority) has full discretion with regard to granting such a leave.82 The Court did not recommend any changes in the current binding law, but questioned the manner of applying the authorities’ discretion. The first case, Frasik v Poland,83 considers Mr Frasik, who on 5 September 2000 was arrested for ‘suspicion of having committed rape and uttered threats’ against a woman with whom he once had a 4 year relationship (they terminated the relationship several months before the alleged rape). He was detained on remand.84 The woman requested that the prosecution institute criminal proceedings against Mr Frasik.85 However, prior to the trial the woman, who had forgiven Mr Frasik for everything he had done and wanted to marry him, expressed her wish to be absolved from testifying against Mr Frasik.86 This wish, not to testify, was repeated during court proceedings but was rejected by the District Court.87 Before the beginning of the trial, in April and in May 2001, Mr Frasik and the woman asked the District Court to grant them leave to marry in prison.88 The District Court refused to grant the leave, as, in the Court’s opinion, ‘a prison or remand center is not a place to hold (...) a wedding’ and that

82 83 84 85 86 87

Frasik v Poland App no 22933/02 (ECtHR, 5 January 2010), para 44 [Frasik]. Ibid. Ibid, paras 8-9. Ibid, para 10. Ibid, paras 15-16. The District Court found that the request not to testify ‘was dictated by her fear of [Mr Frasik] and that their relationship lacked the necessary psychological, physical and financial bonds to be regarded as a de facto marriage and, consequently, a “particularly close personal relationship” within the meaning of the Code of Criminal Procedure that would override her duty to testify against the applicant at the trial’ (para 25). 88 Frasik, paras 34-35.

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the marriage was just another tactic to stop the woman from testifying.89 In November 2001 the District Court sentenced Mr Frasik to 5 years imprisonment and, in May 2002, on appeal, a regional court reduced it to 3 years.90 In the second case Jaremowicz v Poland,91 Mr Jaremowicz was serving a conviction of imprisonment when, in June 2003, he asked for leave to marry in prison another prisoner, who also asked for such leave.92 The Governor of the prison in which Mr Jaremowicz was imprisoned refused to grant the leave, inter alia, because neither of the prisoners could prove that they had had a relationship prior to imprisonment and that their relationship was not superficial.93 Further, the prison authorities reported that the prisoners’ relationship emerged from illegal contact in prison.94 After receiving the refusal, the prisoner complained to various institutions.95 In November 2003 the Deputy Governor of the prison issued a certificate confirming that Mr Jaremowicz had obtained leave to marry the other prisoner in prison, nevertheless, the prisoners did not marry.96 In both cases, not the discretion enjoyed by the District Court and the prison authorities, but the arbitrary character of the decision and the failure to ‘strike a fair balance of proportionality among various public and individual interests,’ caused the violation of Art. 12 of the Convention.97 The Court found: no reason why the trial court [or prison authority] should have assessed – as [they] did – whether the quality of the parties’ relationship was of such a nature as to justify their decision to get married, or to analyze and decide which time and venue were or were not suitable for their marriage ceremony.98

89 90 91 92 93 94 95

Ibid, para 38. Ibid, paras 31-32. Jaremowicz v Poland App no 24023/03 (ECtHR, 5 January 2010) [Jaremowicz]. Ibid, para 11. Ibid, paras 12, 14. Ibid, paras 15-16. Ibid, paras 13-17; He sent a letter to e.g. Ombudsman and the Regional Director of the Prison Service. 96 Ibid, paras 19-20. 97 Frasik, para 100; Jaremowicz, para 64. 98 Frasik, para 95. See also Jaremowicz, para 58.

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Further, the Court stressed that: [t]he choice of a partner and the decision to marry him or her, whether at liberty or in detention, is a strictly private and personal matter and there is no universal or commonly accepted pattern for such a choice or decision

and that the right to marry may not be restricted ‘unless there are important considerations flowing from such circumstances as danger to prison security or prevention of crime and disorder.'99 In neither case did the Court find such circumstances.100 B. Exceptions to the Prohibition of Abortion In three cases, Tysiac v Poland,101 RR v Poland102 and P. and S. v Poland 103 involving legal request to lawfully terminate a pregnancy, the Court found a violation of the right to respect for private and family life regulated under Art. 8 of the Convention. The cases attracted considerable attention because terminating a pregnancy is prohibited in Poland and constitutes a crime.104 The cases considered by the ECtHR regard exceptions provided under the Family Planning Act (Act of 7 January 1993 on family planning, protection of the human fetus and conditions permitting pregnancy termination).105 Under this act, a pregnancy can be terminated by a physician if the ‘pregnancy endangers the mother’s life or health’ (Art. 4a(1)) or if ‘prenatal tests or other medical findings indicate a high risk that the fetus will be severely and irreversibly damaged or suffer from an incurable life-threatening disease’ (Art. 4a(2)). In the second case, ‘an abortion can be performed until such time as the fetus is capable of surviving outside the mother’s body’ (Art. 4a(2)). In both situations, ‘a physician other than the one who is to perform the abortion’ shall certify circum-

99 Frasik, para 95. See also Jaremowicz, para 59. 100 L Garlicki, Konwencja o Ochronie Praw Człowieka i Podstawowych Wolności Komentarz do Artykułów 1-18, Tom I (Warszawa, Beck, 2010) 714, 718-719. 101 Tysiac v Poland App no 5410/03 (ECtHR, 20 March 2007) [Tysiac]. 102 RR v Poland App no 27617/04 (ECtHR, 26 May 2011) [RR]. 103 P. and S. v Poland App no 57375/08 (ECtHR, 30 January 2013) [P and S]. 104 Termination of a pregnancy not in accordance with the Family Planning Act (see below) is a crime under Art. 152 of the Polish Criminal Code. 105 Ustawa z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży (Dz. U. z 1993 r. Nr 17 poz. 78).

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stances permitting the abortion, ‘unless the pregnancy entails a direct threat to the woman’s life’ (Art. 4a(5)). Further, an abortion can be conducted if ‘there are strong grounds for believing that the pregnancy is a result of a criminal act’ (Art. 4a(3)), but only ‘until the end of the twelfth week of pregnancy’ (Art. 4a(2)). The first case Tysiac v Poland, regards a pregnant, single mother of two, both born by Caesarean section, who suffers from severe myopia.106 Concerned with the impact of the pregnancy on her health, she consulted an ophthalmologist, who stated that ‘due to pathological changes in the applicant’s retina, the pregnancy and delivery constituted a risk to her eyesight.’107 Nevertheless, in spite of Ms Tysiacs request, three other specialists ‘refused to issue a certificate for’ a pregnancy termination. In their opinion, it was not certain whether the retina would ‘detach itself as a result of pregnancy.’108 Ms Tysiac obtained medical advice in favor of abortion from a general practitioner.109 However, a gynecologist Ms Tysiac was referred to found no grounds for terminating the pregnancy and refused to perform it.110 Ms Tysiac’s eyesight deteriorated significantly during her term and, after delivery, she faced the risk of going blind.111 For RR v Poland, a woman of 29 years and mother of two, was informed around her 18th week of pregnancy that ‘it could not be ruled out that the fetus was affected with some malformation.’112 Following two ultrasound scans by two independent doctors over the next week, the likelihood of a malformed fetus was confirmed.113 A genetic examination (amniocentesis) was recommended.114 However, her family doctor refused to issue a referral for the test, as he did not believe that the fetus’ condition satisfied the conditions for a legal abortion.115 The woman was admitted to two hospitals and underwent various tests during which her intention to

106 Tysiac, paras 8-9, before Ms Tysiac’s pregnancy ‘the degree of myopia was established at -0.2 in the left eye and -0.8 in the right eye. (…) She was assessed by a State medical panel (…) as suffering from a disability of medium severity.’ 107 Ibid, para 9. 108 Ibid, para 9. 109 Ibid, para 10. 110 Ibid, paras 13-14. 111 Ibid, paras 15-16. 112 RR, paras 8-9. 113 Ibid, paras 12-13. 114 Ibid, paras 12-13. 115 Ibid, para 14.

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terminate the pregnancy was criticized and the genetic examination as well as the abortion were refused to her.116 A genetic test (amniocentesis) was finally performed in the third hospital in the 23rd week of pregnancy.117 When the results of the exam were available, two weeks later, doctors refused to terminate the pregnancy because, by law, it was too late: the fetus was sufficiently developed to ‘survive outside the mother’s body.’118 The woman gave birth to a child with Turner syndrome.119 In the last case, P. and S. v Poland, a 14 year old girl was raped.120 Together with her mother, she decided to terminate the pregnancy and a prosecutor ‘issued a certificate stating that the pregnancy had resulted from unlawful sexual intercourse with a minor under 15 years of age.’121 At the first hospital the girl was referred to, she was taken, without her prior consent, for a talk with a catholic priest.122 Thereafter, the head of the gynecological ward refused to perform the abortion and forbid the doctors working at the hospital from doing it.123 At the second hospital to which the girl was admitted the abortion was refused when the doctors succumbed to pressure put on the hospital by pro-life activists.124 During the girl’s stay at this hospital, anti-abortion activists visited and messaged her.125 When departing the second hospital, the girl was taken to a police station and, subsequently, based on a court order, to a juvenile shelter.126 The court order was based on information suggesting that the girl was pressured into abortion by her parents.127 The decision was quashed approximately 14 days later.128 The girl’s pregnancy was terminated shortly thereafter, when, by intervention of the girl’s mother, a car sent by the Ministry of Health took the girl and her mother to a hospital located ap-

116 117 118 119 120 121 122 123 124 125 126 127 128

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Ibid, para 20. Ibid, para 28. Ibid, para 33. Ibid, para 37. See also M A Nowicki, Europejski Trybunał Praw Człowieka Wybór Orzeczeń 2011 (Warszawa, Wolters Kluwer Polska, 2012) 125ff. P and S, paras 6-8. Ibid, para 10. Ibid, paras 14-17. Ibid, para 21. Ibid, para 27. Ibid, para 26. Ibid, paras 29-32. Ibid, paras 33-35. Ibid, paras 36-37.

The Role of the ECtHR in the Polish Legal Order

proximately 500 km from their home city.129 As a result of the first hospital revealing information about the girl’s circumstances and about its refusal to terminate her pregnancy to the press, the case became widely discussed in national news.130 Also, the information about the abortion being carried out was made public.131 The ECtHR found that there is ‘a striking discordance between the theoretical right to (…) an abortion on the grounds referred to in [Family Planning Act] and the reality of its practical implementation.’132 Women who wanted to obtain legal abortions were faced with procrastination and confusion as well as with ‘misleading and contradictory information’ to achieve systemically planned delay through subterfuge.133 In all three cases, the State failed to provide an effective mechanism to enable a pregnant woman to ‘effectively exercise her right of access to lawful abortion,’ particularly when a disagreement regarding fulfillment of preconditions of legal abortion occurs between a pregnant woman and doctors or between the doctors themselves.134 Additionally, the woman’s legal position during the process of obtaining a legal abortion was unclear.135 The Court recommended that in situations of disagreement, an independent body should consider a case and guarantee involvement of the pregnant woman in the decision-making process, her right of being heard in person, having her opinion taken into account and being provided with written grounds for the doctors’ decision.136 The decision should be made timely, that is, during the period when performing an abortion is legal and such that any damages to woman’s health is prevented.137 Further, the Court found that there were no effective and accessible procedures allowing a pregnant woman to vindicate a lawful termination of a pregnancy.138 Reviewing procedures take place only post factum and have a compensatory character.139

129 130 131 132 133 134 135 136 137 138 139

Ibid, paras 38-41. Ibid, paras 23-24. Ibid, para 41. Ibid, para 111; RR, para 210. P and S, para 108. Tysiac, paras 116, 117, 121, 124; P and S, paras 99, 100; RR, paras 200, 208-210. Tysiac, para 116. Ibid, para 118; P and S, para 100; RR, para 191. Tysiac, para 118. P and S, para 110; RR, paras 209, 211. Tysiac, paras 118, 125; P and S, para 110.

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Moreover, the Court observed that: the legal prohibition on abortion, taken together with the risk of their incurring criminal responsibility under Art. 156 § 1 of the [Polish] Criminal Code, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case.

Therefore, the Court suggested that the provisions regulating the access to a lawful abortion need to be formulated in such a way as to eliminate this effect.140 Additionally, the health system should ensure that freedom of conscience effectively exercised by health professionals does not prevent patients from accessing services to which they are entitled under the State’s legislation.141 It is unquestionable that, thanks to the ECtHR’s rulings and their publicity, the awareness of the circumstances constituting exceptions to the general ban on abortion regulated in the Family Planning Act has increased. Also, access to a legal abortion has improved. This is indicated by the growing number of abortions performed legally in public hospitals, e.g. in 2015 pregnancies were terminated in 1040 cases, which compares to 159 cases in 2002.142 As opposed to 2002, when abortions were performed mostly due to endangerment of the woman’s life, most of the abortions carried out in 2015 took place due to prenatal tests or other medical findings that indicated a high risk of the fetus being severely and irreversibly damaged or suffering from an incurable life-threatening disease.143 However, a later case, widely discussed in the Polish media, confirms that despite the ECtHR’s rulings, in practice, it is not the woman, but her gynecologist that decides whether an abortion takes place. As pointed out by the Court, there are still no effective mechanisms that allow a pregnant woman to access abortion without her gynecologist consent, even when the conditions provided under the Family Planning Act are satisfied.

140 Tysiac, para 116; See also Nowicki, Wokół Konwencji 697-698. 141 P and S, para 106; RR, para 206. On conscientious objection for medical professionals in the light of Council of Europe’s standards see O Nawrot, ‘Klauzula sumienia w zawodach medycznych w świetle standardów Rady Europy’ (2012) 3 Zeszyty Prawnicze 1122. 142 ‘Sprawozdanie Rady Ministrów z wykonywania oraz o skutkach stosowania w roku 2015 ustawy z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży’ 80-84, accessed 25 September 2017. 143 Ibid.

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In this case, according to media reports, a woman in her 22nd week of pregnancy was told that there is a significant likelihood that the fetus was severely and irreversibly damaged and suffering from an incurable lifethreatening disease.144 In spite of the woman’s immediate wish to terminate the pregnancy (expressed to a different doctor), the woman’s gynecologist prescribed various tests that were tardily performed over the next 2 weeks, after which the gynecologist informed the woman that, due to the clause of conscience, he would not perform the abortion. After consulting another doctor, the woman was told that it was now too late to terminate her pregnancy.145 The child was born and died 10 days after the birth.146 V. Conclusions The discussed examples show that complying with the ECHR and the ECtHR’s case law requires a structural change involving amending Polish law and providing mechanisms for its successful enforcement as well as increasing courts and society’s awareness of the human rights standards provided under the ECHR and their interpretation. Disrespect of human rights, particularly of rights of defendants in criminal proceedings, can be seen as remains of the communistic system in Poland. The most urgent problems regard inconsistency under the Polish Code of Criminal Procedure and Polish penitentiary law and the Convention and the inefficiency of the judicial criminal system. Enforcing reliable mechanisms is particularly important in dealing with sensitive situations, such as abortion and access to marriage. The Court as well as international organizations (e.g. Helsinki Foundation for Human Rights) expressed their concern with regard to the Poland’s delay to timely address the violations identified by the ECtHR and implement the recommendations made by the Court. However, the refusal to timely implement some of the ECtHR’s judgments is grounded in the opposition to the standards imposed by the Court which are inconsis-

144 Wprost, accessed 25 September 2017. 145 Ibid. 146 Polityka, accessed 25 September 2017.

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tent with the system of values adopted in Poland. That is visible in cases considering gynecologist reluctance to terminate a pregnancy, in which the ECtHR’s rulings impose interpretation of individual rights that are inconsistent with the conservative and religious background of Polish society. Any visible modifications in this area require long-term changes in societal values and striking a fair balance of proportionality among various public and individual interests. In many instances, there is discord between the theoretical right and the reality of its practical implementation. Many rights that are provided under the legislation (including the Polish Constitution) are not abided by. Therefore, particularly in respect to criminal procedures, especially important seems to be not only amending the law that is inconsistent with the ECHR, but also educating public servants about individuals’ rights and changing authoritarian systems to be more supplicants’ friendly. Even though system changes were undertaken in public, criminal and civil law, their effectiveness is limited due to post-communistic manner of thinking of some people responsible for implementing them. In the cases, in which violations were found by the ECtHR, public servants used their discretion to the disadvantage of the persons that were under their control. Therefore, a change of attitude must take place. Attitudinal change can be achieved by educating the public servants (particularly prosecutors and judges), replacing them with ones that are aware of the human rights standards and willing to implement them or by enforcing casuistic regulations that would limit the discretion exercised by public servants. The last solution, even if the most effective, would be very difficult to adopt especially in the case of regulation of criminal procedure, which needs to accommodate different situations. The changes already implemented in Polish law have been welcomed by international bodies. Notably, as confirmed by the decreasing number of cases against Poland heard by the ECtHR, it is clear that Poland has successfully undertaken steps to apply the ECtHR’s case law and comply with Art. 46 of the Convention. It can be only hoped that these trends will continue.

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International Human Rights in the Case Law of the Slovenian Constitutional Court Mirjam Škrk

Abstract Basic human rights and freedoms form the central part of the Slovenian Constitution. The human rights provisions are based on universal human rights instruments as the Slovenian Constitution had been adopted before Slovenia joined the Council of Europe and became party to the ECHR. The article analyses the position of human rights in the Constitution from the perspective of the case-law of the Constitutional Court. In the first part, the international human rights are introduced as they stem from the Constitution. While civil and political rights and freedoms are quite systematically incorporated in its text, economic, social and cultural rights are scattered in the different parts of the Constitution. The second part of the article is dedicated to international human rights as they stem from the case-law of the Slovenian Constitutional Court. The author has chosen four decisions, namely on the direct application of ECHR in the Slovenian national law, the right of the accused to use his language and script, the rights of blind persons in civil procedure and, the review of the law on international protection. In the concluding remarks, the author observes that the Constitutional Court regularly applies international human rights law in its case-law. Nonetheless, it gives priority to the constitutional provisions on human rights as the measure of adjudication. I. Introduction Under the notion ’international human rights’ we understand fundamental human rights and freedoms that are part of the international human rights law. These rights are incorporated in international and regional human rights instruments. Many of these norms have become part of customary

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international human rights law while some of them are recognised as peremptory norms of general international law (ius cogens).1 Slovenia is party to practically all international human rights instruments, largely by means of succession to treaties. In the former Yugoslavia as the Predecessor State, the international human rights norms were mainly of normative value only and were not directly enforceable before domestic courts. As a consequence, the defunct State did not accept the jurisdiction of any international supervisory body that provided the possibility to individuals (natural and legal persons) to address it in case of alleged human rights violations by the State and its organs. After its independence, Slovenia became a party to the International Covenants on Civil and Political Rights 1966 (hereinafter: ICCPR) and Economic, Social and Cultural Rights (hereinafter: ICESCR) by means of succession.2 In addition, it accepted the jurisdiction of the Human Rights Committee to hear individual complaints by acceding to the 1st Optional Protocol of the ICCPR.3 Likewise, by means of accession Slovenia became a party to the universal Torture Convention of 1984.4 In the following year Slovenia became a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR) and recognized the jurisdiction of the European Court of Human Rights (hereinafter: ECtHR).5 The fundamental human rights and freedoms are incorporated in the Slovenian Constitution, which was adopted on 23 December 1991.6 The human rights provisions were mainly inspired by the universal human rights instruments including the Universal Declaration on Human Rights and the two International Covenants of 1966, as Slovenia had not yet been

1 H.J. Steiner, P. Alston, R. Goodman (eds.), International Human Right in Context, Text and Material [3rd Edition, Oxford University Press, 2008] p.78. For torture see Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 457, 99. In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens). 2 Off. Gaz. SFRY, Treaties, No. 7/77, Act Notifying Succession, Off. Gaz. RS, No. 35/92, Treaties, 9/92. 3 Off. Gaz. RS, No. 28/93, Treaties, No. 9/93. 4 Off. Gaz. RS, No. 24/93, Treaties, No. 7/93. 5 Off. Gaz. RS, No. 33/94, Treaties, No. 7/94. 6 Off. Gaz. RS, Nos. 33/91-I, 66/2000, 24/03, 69/04, 68/06, and 47/013.

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a party to the ECHR at the time it became independent.7 The main objective of the ‘founding fathers’ of the Slovenian Constitution was to create and guarantee an effective human rights protection for all and on the basis of the rule of law. In the second part of this paper, the fundamental rights and freedoms as they stand in the Slovenian Constitution are presented. Next, the jurisdiction of the Constitutional Court of the Republic of Slovenia is introduced in order to realise which legal tools are available to individuals in case of alleged human rights violations. In addition, some relevant case law of the Constitutional Court is examined in order to assess to what extent it resorts to international human rights norms as the margin of adjudication. II. The Position of International Human Rights in the Slovenian Constitution 1. Civil and Political Rights Human rights and fundamental freedoms are incorporated in Part II, titled – Human Rights and Fundamental Freedoms. Articles 14-46 reflect the so-called ‘traditional’ civil and political rights, starting with the provision on Equality before the Law (Article 14), which also contains the prohibition of discrimination (paragraph 1).8 The Constitutional Court has stressed on several occasions that the principle of non-discrimination as the basic element of the principle of equality requires not only formal but also substantially equal treatment of affected individuals, meaning that direct as well as indirect discrimination is not in conformity with the Constitution.9 In order to achieve substantially equal treatment, affirmative action or so-called ‘positive discrimination’ is

7 C, Ribičič, Ustava in EKČP (The Constitution and ECHR), 15 let uresničevanja Ustave Republike Slovenije (15 Years of the Implementation of the Constitution of the Republic of Slovenia), [Zbornik (Collection of Legal Studies), Faculty of Law, University of Ljubljana, 2007)] p. 65. 8 (1) In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status, disability, or any other personal circumstance. 9 Lovro Šturm (ed.), Komentar Ustave Republike Slovenije – Dopolnitev – A (Commentary of the Constitution of the Republic of Slovenia – Supplement – A), [Fakul-

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sometimes required on behalf of the legislature.10 The equality before the law in the strict sense is contained in paragraph 2 and is often the corollary of the requirement for Equal Protection of Rights guaranteed in Article 2211 of the Constitution and Right to Judicial Protection12 (Article 23 of the Constitution). The provision on Exercise and Limitation of Rights is contained in Article 15 and includes the obligation on behalf of the State and its organs, including the judiciary, to exercise human rights and fundamental freedoms directly on the basis of the Constitution (paragraph 1). It also stems from this Article that, (5) No human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the grounds that this Constitution does not recognise that right or freedom or recognises it to the lesser extent.13

With regard to the relationship between international law and national law Slovenia practices moderate dualism while recognising the supremacy of international law. The above provision assures that the national courts and state authorities directly apply human rights treaties binding on Slovenia and norms of customary international human rights law.14 Article 16 of the Constitution has been inspired by Article 4 of the ICCPR and it envisages the temporary suspension and reservation of rights during a war and state of emergency.15 The list of rights that are not subject to such derogation is similar in both instruments, with the exception of the prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation, which is only listed in Article 4 of the ICCPR. Article 17 guarantees the inviolability of human life and prohibits capital punishment in Slovenia, while Article 18 prohibits torture or inhuman

teta za državne in evropske študije (Faculty for State and European Studies), 2011] p. 168. 10 Decision U-I-146/07, 13 November 2008 (review of the Civil Procedure Act), Off. Gaz. RS, No. 111/08 and Collection of Decisions, XVII, 59. 11 Addressed as ‘fair trial clause’. 12 Also addressed as ‘access to the Court clause’. 13 Compare to Art. 5 (II) of the ICCPR. 14 See infra at 3.1. The Position of International Law in the Slovenian Constitution. 15 The National Assembly is competent to declare war and state of emergency. If it is unable to convene, the President of the Republic decides on matters subject to confirmation by the National Assembly immediately upon its next convening (Article 92, War and State of Emergency).

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and degrading punishment and treatment, including the conducting of medical or other scientific experiments on any person without her or his free consent. It must be reiterated that the prohibition of torture had been incorporated in the Constitution before Slovenia became a party to the Torture Convention.16 Articles 19-31 contain procedural guarantees in judicial proceedings, including criminal proceedings, namely Article 19 (Protection of Personal Liberty), Article 20 (Orders for and Duration of Detention), Article 21 (Protection of Human Personality and Dignity), Article 22 (Equal Protection of Rights), Article 23 (Right to Judicial Protection), Article 24 (Public Nature of Court Proceedings), Article 25 (Right to Legal Remedies), Article 26 (Right to Compensation), Article 27 (Presumption of Innocence), Article 28 (Principle of Legality in Criminal Law), Article 29 (Legal Guarantees in Criminal Proceedings), Article 30 (Right to Rehabilitation and Compensation) and Article 31 (Prohibition of Double Jeopardy). Furthermore, Articles 32-46 incorporate the remaining constitutionally guaranteed civil and political rights, that is Article 32 (Freedom of Movement), Article 33 (Right to Private Property and Inheritance), Article 34 (Right to Personal Dignity and Safety), Article 35 (Protection of the Rights to Privacy and Personality Rights), Article 36 (Inviolability of Dwellings), Article 37 (Protection of the Privacy of Correspondence and Other Means of Communication), Article 38 (Protection of Personal Data), Article 39 (Freedom of Expression), Article 40 (Right to Correction and Reply), Article 41 (Freedom of Conscience), Article 42 (Right of Assembly and Association), Article 43 (Right to Vote), Article 44 (Participation in the Management of Public Affairs), Article 45 (Right to Petition) and Article 46 (Right to Conscientious Objection). Extradition and asylum are regulated in Articles 47 and 48. The provision on extradition was changed after the accession of Slovenia to the EU in 2004, as the initial provision on extradition adopted in 1991 prohibited a citizen of Slovenia to be extradited to another State. Interestingly enough, this prohibition was not altered on the occasion of Slovenia’s ratification of the Rome Statute of the International Criminal Court. According to the present wording of Article 47, no citizen of Slovenia may be extradited or surrendered unless such obligation to extradite or surrender arises from a treaty by which Slovenia has transferred the exercise of part

16 See supra note 4.

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of its sovereign rights to an international organization in accordance with Article 3.a of the Constitution.17 2. Economic, Social and Cultural Rights Economic, social and cultural rights were inspired by the ICESCR and numerous ILO Conventions. Within the Council of Europe, economic and social rights are incorporated in the European Social Charter to which Slovenia acceded in 1999.18 These rights are less consistently regulated in the Constitution than civil and political rights. Namely, they are scattered between Part II, Human Rights and Fundamental Freedoms and Part III on Economic and Social Relations. Economic, social and cultural rights are not directly enforceable. However, the State is bound to create opportunities under which these rights may be realized. Constitutional provisions on social, economic and cultural rights often contain a clause authorizing the legislature to prescribe further conditions for their execution.19 Nonetheless, the legislature’s action may create certain traps in exercising internationally recognized human rights, as the dividing line between ‘interference’ and the ‘manner of the exercising of a right’ is not always easily determinable.20 Articles 49-52 incorporate basic social rights.21 The right to social security was amended in 2004 in order to include the right to a pension as a constitutional right. The right to social security is also protected by several ILO Conventions, the European Social Charter and a number of bilateral social security agreements, including those concluded with the successor

17 So-called EU Article. See infra at 3.1. The Position of International Law in the Slovenian Constitution. 18 C. Ribičič, op. cit., p. 67. For the revised European Social Charter see Off. Gaz. RS, No. 24/99, Treaties, No. 7/99. 19 Everyone has the right to health care under conditions provided by law. Art. 51 (I) of the Constitution. 20 D. Wedam Lukić, The Principle of Proportionality in the Case Law of the Constit. Court of the Rep. of Slovenia, Human Rights, Democracy and the Rule of Law, [Luzius Wildhaber, S. Breienmoser and others (eds.), Liber amicorum, Dike and Nomos, 2007] p.1603. 21 Article 49 (Freedom of Work), Article 50 (Right to Social Security), Article 51 (Right to Health Care), Article 52 (Rights of Disabled Persons).

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States to the former Yugoslavia.22 The case law of the ECtHR is also relevant for social security rights despite the fact that the ECHR primarily regulates basic civil and political rights.23 The ECtHR recognised on several occasions that the various social benefits fall within the ambit of Article 1 of the 1st Protocol to the ECHR under which property rights are protected.24 Articles 53-56 are dedicated to the protection of family, including the rights of children (Article 56).25 When the Constitutional Court reviewed the Marriage and Family Relations Act, it assigned to the right of the child the maintenance personal relations and direct contacts with both parents, stemming from Article 9 (III) of the UN Convention on the Rights of the Child, the effect of the self-executing provision.26 On the other hand, the Constitutional Court realised that the relevant provisions of the European Convention on the Exercise of Children’s Rights could not be given selfexecuting effect.27 Nonetheless, the legislature was bound by the Convention to fulfil the obligations taken by its ratification. Since the legislature had not done so, the Constitutional Court abrogated certain provisions of the Marriage and Family Relations Act on this ground. Article 57 of the Constitution takes care of education and schooling and determines in paragraph two that primary education in Slovenia is compulsory and shall be financed from public funds.28 Regarding universities and other institutions of higher education, the Constitution guarantees their autonomy in Article 58.

22 Lovro Šturm (ed.), Komentar Ustave Republike Slovenije – Dopolnitev – A (Commentary of the Constitution of the Republic of Slovenia – Supplement – A), op. cit., pp. 780-782. 23 Ibid., p. 783. 24 Ibid., p. 784, after Stec and Others v United Kingdom ECtHR 2006 – VI. 25 Article 53 (Marriage and the Family), Article 54 (Rights and Duties of Parents), Article 55 (Freedom of Choice of Childbearing). 26 Adopted on 20 November 1989. Off. Gaz. SFRY, No. 15/90, Act Notifying Succession, Off. Gaz. RS, No. 35/92, Treaties, No. 9/92 and Decision U-I-312/00 of 23 April 2003, Off. Gaz. RS, No. 42/03 and Collection of Decisions, XII/1, 39, Para. 13 of the reasoning. 27 Done at Strasbourg on 25 January 1996, Off. Gaz. RS, No. 86/99, Treaties, No. 26/99 and U-I-312/00, ibid., Para. 16 of the reasoning. 28 On constitutionality of the financing of private schools that are performing the public valid programs of elementary education, see Decision U-I-269/12 of 4 December 2014, Off. Gaz. RS, No. 2/015.

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Freedom of science and the arts (Article 59), which includes scientific and artistic endeavour, is often in collision with other human rights, in particular the right to personal dignity and safety (Article 34) and the protection of the rights to privacy and personality rights (Article 35). The Constitutional Court opined that in case of collision of two equivalent rights (i.e. rights that are both constitutionally protected), a substantive limitation of both rights and not only one of them, is necessary.29 This means that both holders may exercise their rights (only) to a limited (narrowed) extent, i.e. in such a manner as to avoid the infringement of the rights of the other.30 In order to evaluate whether the interference with the right to privacy is constitutionally permissible, the Constitutional Court often resorts to the (strict) test of proportionality.31 Intellectual property rights as the corollary of the freedom of science and the arts are protected in Article 60. The ‘founding fathers’ inserted in the Constitution the right to freely express affiliation with one’s nation or national community (Article 61). This right relates to an alien or a citizen of Slovenia that does not belong to the Slovenian ethnic community.32 The provision guarantees everyone the right to preserve his or her national and cultural identity. It is associated with the protection of the rights to privacy and personality rights (Article 35) and the freedom of expression (Article 39). These constitutional commitments now also stem from international instruments that supersede the Constitution, namely the European Charter for Regional and Minority Languages33 and the Framework Convention for the Protection of National Minorities.34 The right to use one’s language and script (Article 62) is two-dimensional. First, it is closely interrelated to the expression of national affilia-

29 Decision Up-422/02 of 10 March 2005, Off. Gaz. RS, No. 29/05 and Collection of Decisions, XIV, 36, Para. 9 of the reasoning. 30 Ibid. 31 D. Wedam Lukić, The Principle of Proportionality in the Case Law of the Constit. Court of the Rep. of Slovenia, Human Rights, Democracy and the Rule of Law, op. cit., p. 1613-1614. 32 Lovro Šturm (ed.), Komentar Ustave Republike Slovenije – Dopolnitev – A (Commentary of the Constitution of the Republic of Slovenia, Supplement – A), op. cit., p. 936. 33 Done at Strasbourg on 5 November 1992, Off. Gaz. RS, No. 69/2000, Treaties, No. 17/2000. 34 Done at Strasbourg on 1 February 1995, Off. Gaz. RS, No. 20/1998, Treaties, No. 4/98.

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tion. In addition, it is a fundamental procedural right, closely related to the right to a fair trial. It provides that, Everyone has the right to use his language and script in a manner provided by law in the exercise of his rights and duties and in procedures before the state and other authorities performing a public function.

The ‘founding fathers’ opted for someone’s ‘own language’35 formula which seems stricter than the one guaranteed by the ICCPR and the ECHR. Namely, these international instruments guarantee an individual charged with a criminal offence the right to be informed promptly in a language he or she understands, 36 which might not necessarily be his or her own language. However, it must not be neglected that Article 62 of the Constitution authorizes the legislature to prescribe the manner of exercising this right. Consequently, the Criminal Procedure Act provides an alternative possibility to an individual deprived of personal liberty of being promptly informed of charges against him whether in his mother tongue or a language he understands.37 Comparable provisions may be found in Civil Procedure and Administrative Procedure Acts. Article 63 contains Prohibition of Incitement to Discrimination and Intolerance and Prohibition of Incitement to Violence and War. It must be reiterated that the second group of social and economic rights is included in Part III of the Constitution under Economic and Social Relations. These are Security of Employment (Article 66), Property (Article 67), Property Rights of Aliens (Article 68) and Expropriation (Article 69). Slovenia’s Constitution recognizes the right to a healthy living environment as a constitutional right (Article 72). The said provision also obliges the legislature to regulate the protection of animals from cruelty.38 In addition, the Constitution guarantees free economic initiative [Article 74 (I), Free Enterprise], Participation of Management (Article 75), Freedom of Trade Unions (Article 76) and Right to Strike (Article 77). The right to establish trade unions including their free functioning and the right to strike stem inter alia from Article 8 (I) (a) and (b) of the ICESCR. The Constitutional Court dismissed the petition to review the constitutionality of the Strike Act and decided that the right to strike was one of the

35 36 37 38

Also prescribed as a ‘mother tongue’. Compare to Art. 14 (II) (a) ICCPR and Art. 6 (III) (a) ECHR. Art. 4, Off. Gaz. RS, No. 32/012 (official consolidated text). (4) The protection of animals from cruelty shall be regulated by law.

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human rights which required that the manner of its exercise should be prescribed by law. In addition, it reasoned that the request for a strike to be announced in advance was not unconstitutional. As a measure of adjudication it also took into account the provision of Article 8 of the ICESCR.39 The State is obliged to create opportunities for citizens to obtain proper housing (Article 78, Proper Housing). This constitutional provision is under the scrutiny of EU law due to the fact that Article 34 of the EU Charter on Fundamental Rights provides, (3) In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.40

The legislature is bound to prescribe special rights for aliens in Slovenia and members of their families under the provision of Article 79 (Aliens Employed in Slovenia). Slovenia is neither signatory nor party to the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, done in New York on 18 December 1990.41 However, it is bound by ILO Conventions Nos. 97 and 143 on migrant workers.42 The protection of migrant workers and their families is also contained in the European Social Charter (as revised) that is binding on Slovenia. The case law of the Constitutional Court of Slovenia regarding migrant workers is scarce and restrictive. The Court stated that the Constitution does not assure concrete rights to migrant workers employed in Slovenia; however, the State must make sure that the legislature defines these rights.43

39 Decision U-I-230/97 of 28 October 1998 (review of the Strike Act), Collection of Decisions, VII, 199. 40 2000/C 364/01. 41 UN Treaty Series, Vol. 2220, No. 39481, p. 3. 42 Lovro Šturm (ed.), Komentar Ustave Republike Slovenije – Dopolnitev – A (Commentary of the Constitution of the Republic of Slovenia, Supplement – A), op. cit., p. 1088. 43 Ibid., p. 1090-1091. See Decision Up-108/97 of 25 May 1999, unpublished, Para. 7 of the reasoning.

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3. Special Provisions Articles 64 and 65 of the Constitution belong to Part II (Human Rights and Fundamental Freedoms) and regulate special rights of the autochthonous Italian and Hungarian national communities in Slovenia as well as the status and special rights of the Romany community in Slovenia (Article 65). Apart from other constitutional rights and freedoms that belong to individuals,44 these two provisions contain collective rights that appertain to the Italian and Hungarian national minorities and to the Romany community in Slovenia. Regarding the rights of the autochthonous Italian and Hungarian national communities (Article 64), this provision emanates from the relevant provisions of the former republic’s Constitution while Slovenia was one of the constituent republics within the former SFRY. Due to the historic roots of the Slovenian nation, Slovenia has always paid special attention to the protection of national minorities. This is moreover so as the members of the Slovenian national minorities live in the neighbouring States Italy, Austria and Hungary. Slovenia is the protecting power for the Slovenian national minorities abroad on the basis of the Constitution and relevant international instruments.45 Namely, Article 5 of the Constitution inter alia provides, In its own territory the State shall protect human rights and fundamental freedoms. It shall protect and guarantee the rights of the autochthonous Italian and Hungarian national communities. It shall maintain a concern for the autochthonous Slovene national minorities in neighbouring countries and […] shall foster their contacts with the homeland.

44 H.J. Steiner, P. Alston, R. Goodman (eds.), International Human Rights in Context, op. cit., p. 153. 45 See Annex to the London Memorandum of Understanding of 5 October 1954, initialed between the UK, USA, Italy and Yugoslavia, UN Treaty Series, Vol. 235, No. 3297, p. 100 in conjunction with Art. 7 and 8 of the Treaty of Osimo between Italy and Yugoslavia, signed on 10 November 1975, Off. Gaz. SFRY, Treaties, No. 1/77, Act Notifying Succession, Off. Gaz. RS, No. 40/92, Treaties, No. 11/92. For the protection of the Slovenian minority in Carinthia and Styria, see Art. 7 of the State Treaty for the re-establishment of an independent and democratic Austria, signed at Vienna on 15 May 1955, UN Treaty Series Vol. 217, No. 2949, p. 224. See also the bilateral Agreement regarding the Protection of Special Rights of the Slovenian national minority in Hungary and the Hungarian National Community in Slovenia, signed on 6 November 1992, Off. Gaz. RS, 23/93, Treaties, No. 6/93.

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Article 64 guarantees certain political rights to the autochthonous Italian and Hungarian national minorities and their members in the areas where they live, such as the right to use their national symbols freely, to establish their own self-governing communities in the areas where they live, and the right to be directly represented in the local self-government and in the National Assembly. In addition, the Italian and Hungarian minorities and their members have the right to establish their own organisations and develop economic, cultural, scientific, and research activities and their own media, the right to education and schooling in their own language, and the right to foster relations with their nations of origin and their respective countries. The State must provide material and moral support for the exercise of these rights (paragraphs 1-3). These rights are guaranteed irrespective of the number of members of these minorities (paragraph 4). Laws, regulations, and other general acts that concern their exercise and the position of the Italian and Hungarian minorities may not be adopted without the consent of representatives of these minorities (paragraph 5). The Constitutional Court was seized several times to review laws and regulations relating to constitutional rights of the Italian and Hungarian national communities in Slovenia.46 In its land-mark decision, U-I-283/94, on the occasion of reviewing the constitutionality of legislation on the double voting right of the members of national communities, it reasoned that the protection of the Italian and Hungarian minorities in Slovenia is guaranteed in two forms: first, as a prohibition of discrimination irrespective of national origin, language, religion or race, and second, as the guarantee of special rights which appertain only to the minorities or its members. 47 It continued, The latter form of protection is known in theory as positive protection of minorities. Positive protection causes so-called positive discrimination, because members of minorities are guaranteed rights which members of the majority do not have. Such a type of measure represents a high level of protection of

46 Decision U-I-94/96 of 22 October 1998 (review of the Act on the Organization and Financing of Upbringing and Education), Off. Gaz. RS, No. 77/98 and Collection of Decisions, VII, 196; Decision U-I-218/04 of 20 April 2006 (review of Consumer Protection Act), Off. Gaz. RS, No. 117/04 (provisional measures), Off. Gaz. RS, No. 46/06 (merits) and Collection of Decisions, XV, 29; Decision U-I-380/06 of 11 September 2008 (review of Societies Act), Off. Gaz. RS, No. 91/08 and Collection of Decisions, XVII, 47. 47 12 February 1998, Off. Gaz. RS, No. 20/98 and Collection of Decisions, VII, 26, Para. 17.

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national minorities, which the majority group of the population recognises for them, and which indicates a democratic society.

Although the Constitutional Court considered the Constitution as the margin of adjudication, it relied upon a number of relevant bilateral and multilateral treaties and agreements in its reasoning,48 including the European Charter for Regional and Minority Languages and the Framework Convention for the Protection of National Minorities.49 On the other hand, Article 6550 does not designate special rights appertaining to the Romany community. It merely provides that the status and special rights of the Romany community living in Slovenia shall be regulated by law. Nevertheless, the Constitutional Court asserted, The Constitution, in comparison with the constitutional regulation of the status and special rights of the Italian and Hungarian national communities […], does not determine collective and individual rights which should pertain to the Romany community and its members, but entirely leaves their regulation to statute. The mentioned constitutional provision contains the authority granted to the legislature to ensure by statute special rights to the Romany community living in Slovenia, as a special ethnic community, in addition to those rights pertaining to everybody. In regulating the special status and special rights of the Romany community, the legislature is not limited by the principle of equality […]. The constitutional authority determined in Art. 65 allows the legislature to ensure the Romany community and its members special (additional) protection, which is in theory known as so-called "positive discrimination" or affirmative action.51

When defining ‘positive discrimination’ the Constitutional Court relied on decision U-I-283/94 concerning the double voting right of the members of the Italian and Hungarian national minorities and it also took into account two international instruments. First, it reasoned this was specifically emphasized by the Declaration on the Rights of Members of National or Ethnic, Religious and Language Minorities adopted by the United Nations General Assembly in 1992 as a formally non-binding document.52 Secondly, the Court relied on the Framework Convention for the Protection of

48 49 50 51

See supra note 45. See supra notes 33 and 34. Status and Special Provisions of the Romany Community in Slovenia. Decision U-I-416/98 of 22 March 2001 (review of the Constitutionality and Legality of the Local Self-Government Act and the Charter of Novo Mesto Urban Municipality), Off. Gaz. RS, No. 28/01, Para. 7 of the reasoning. 52 Ibid.

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National Minorities. Namely, on the occasion of depositing the ratification instruments regarding this Convention with the Council of Europe, Slovenia deposited a declaration in the form of a Note Verbale which inter alia determined that the provisions of the mentioned Framework Convention apply in accordance with the Constitution and the internal legislation of the Republic of Slovenia also to the members of the Roma community living in the Republic of Slovenia.53 III. International Human Rights in the Case Law of the Constitutional Court 1. The Position of International Law in the Slovenian Constitution The central (but not exclusive) provision concerning the relation between international law and the Slovenian national law is laid down in Article 8 of the Constitution. It stipulates that, Laws and regulations must comply with generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties shall be applied directly.

This constitutional provision, which is included under the General Provisions within Part I of the Constitution, gives room for the monistic or dualistic approach in respect of the position of international law within the Slovenian national law.54 The Constitutional Court has consistently recognized the supremacy of international law over all domestic norms of a non-constitutional character, but not over the Constitution.55 When (a priori) reviewing the EU Association Agreement, the Constitutional Court adjudicated as obiter dic-

53 Ibid. 54 M.Škrk, The Relationship between International Law and Internal Law in the Case-Law of the Slovene Constitutional Court, in: International Law: New Actors, New Concepts – Continuing Dilemmas; Liber Amicorum Božidar Bakotić, [B. Vukas and T.M. Sosić (eds.), Koninklijke Brill NV, 2010] p. 45. 55 Decision No. U-I-6/93 of 1 April 1994 (review of the Decree on Military Courts of 1944), Off. Gaz. of the RS, No. 23/94 and Collection of Decisions, III, 33, B-I, Para. 5 of the reasoning.

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tum that the Slovenian legal order does not accept the supremacy of international law in respect of the Constitution.56 The commentary on the Constitution seems to promote the dualistic approach in respect of international law and the Slovenian national law, for its speaks of two separate legal orders.57 Danilo Türk also considers that Article 8 rests on the premise that there are two distinct legal systems: international law and internal law.58 He recognizes the supremacy of international law over laws and all other internal regulations.59 In addition, Türk explains that the provision providing for the direct application of treaties binding on Slovenia demonstrates that the Slovene Constitution has accepted the idea of adoption.60 Although Article 8 is the fundamental constitutional provision regulating the relationship between international law and national law, it is not the exclusive one in regard to this relationship.61 This treatise is almost exclusively dealing with the relationship between international human rights law and the Slovenian national law. However, it must not be overlooked that Article 3.a (III) of the Constitution relates to European human rights legal order and the Slovenian national law. This constitutional provision forms the legal basis for the supremacy of EU law in Slovenia and provides that, Legal acts and decisions adopted within international organisations to which Slovenia has transferred the exercise of part of its sovereign rights shall be applied in Slovenia in accordance with the legal regulation of these organisations.

56 Opinion Rm-1/97 of 5 June 1997 (preventive review of the Europe Agreement Establishing an Association between the EC and their Member States Acting within the Framework of the EU, of the One Part, and the Republic of Slovenia, of the Other Part – The EU Association Agreement), Off. Gaz. RS, No. 40/97 and Collection of Decisions, VI, 86, Para. 2 of the reasoning. 57 Lovro Šturm (ed.), Komentar Ustave Republike Slovenije – Dopolnitev – A (Commentary of the Constitution of the Republic of Slovenia, Supplement – A), op. cit., p. 140. 58 D. Türk, Temelji mednarodnega prava (Foundations of International Law), [Založba GV, 2nd updated edition, Ljubljana 2015] p. 74. 59 Ibid. 60 Ibid. This implies that the author is advocating the so-called moderate dualism. 61 See Article 153 (II) (Conformity of Legal Acts) and the 2nd subparagraph of Article 160 (I) of the Constitution (Jurisdiction of the Constitutional Court).

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This was virtually acknowledged by the Constitutional Court in respect of principles of EU law, including the principle of supremacy as the most important principle among them. It admitted that, these principles also bind the Constitutional Court in the exercise of its competences in the framework of legal relationships that concern EU law. When interpreting national law […] in the procedure for the review of regulations, the Constitutional Court must take into account EU law, namely in such manner as it derives from the acts of the EU or as it has developed in the case law of the CJEU [Court of Justice of the European Union]. It must interpret national law in order to ensure its full effectiveness.62 2. The Jurisdiction of the Constitutional Court i. The Jurisdiction to Review Laws and Other Regulations The jurisdiction of the Constitutional Court is rather wide. According to Article 160 (I) it is competent to decide on the conformity of laws,63 other regulations and general acts issued for the exercise of public authority with the Constitution and with ratified treaties and general principles of international law. It is also competent to decide on their legality with regard to other regulations and general acts issued for the exercise of public authority. According to Article 162 (Proceedings before the Constitutional Court), anyone who demonstrates legal interest may request the initiation of proceedings before the Constitutional Court. The Constitutional Court Act64 determines State organs and other State and public entities that may submit the request for the initiation of proceedings before the Constitutional Court. The proceedings before the Constitutional Court are regulated by the Constitutional Court Act in some detail.

62 Decision U-I-146/12 of 14 November 2013 (review of the Fiscal Balance Act), Off. Gaz. No. 107/013, Para. 34 of the reasoning. 63 The term 'law' is used to indicate a legislative act passed by the National Assembly in the form of a law. The term 'Act' is used when addressing the concrete law passed by the legislature, i.e. the Constitutional Court Act. 64 Art. 23.a, Off. Gaz. RS, Nos. 15/94 and 64/07 (official consolidated text) and 109/12.

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ii. The Jurisdiction to Decide on Constitutional Complaints Article 160 (I) also authorizes the Constitutional Court to decide on constitutional complaints stemming from the violation of human rights and fundamental freedoms by individual acts, including the judgments of regular courts and the Supreme Court (6th subparagraph).65 The Constitutional Court decides on a constitutional complaint only if legal remedies have been exhausted [Article 160 (III)]. iii. The Jurisdiction to Review Treaties In addition, the Constitutional Court is competent to review the constitutionality of treaties. The Slovenian Constitution determines expressly only the preventive review of the constitutionality of treaties. Article 160 (II) of the Constitution provides that, In the process of ratifying a treaty, the Constitutional Court, on the proposal of the President of the Republic, the Government or a third of the deputies of the National Assembly, issues an opinion on the conformity of such treaty with the Constitution. The National Assembly is bound by the opinion of the Constitutional Court.

The jurisdiction of the Constitutional Court to preventively review treaties is also determined in Articles 21 (II) and 70 of the Constitutional Court Act. The purpose of the a priori review of the constitutionality of a treaty is preventative: i.e. to prevent an unconstitutional international legal obligation from being adopted in the Slovenian internal legal order at the right time.66 The Constitution does not envisage the posterior review of the constitutionality of treaties. Such review was developed by the Constitutional Court in its case law. This concerns an indirect review through jurisdiction to review laws and regulations, i.e. on the basis of a challenged law or decree on ratification. The jurisdiction of the Constitutional Court is based on the 1st and 3rd subparagraphs of Article 160 (I) of the Constitution. As

65 Ibid., Art. 1, (1) The Constitutional Court is the highest body of the judicial power for the protection of constitutionality, legality, human rights and fundamental freedoms. 66 Opinion Rm-1/97, Para. 13 of the reasoning.

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regards the posterior review of constitutionality, the Constitutional Court reviews a treaty through the act on the ratification of a treaty. In the Slovenian legal system, this can be a law adopted by the National Assembly or a decree of the Government. From the aspect of international law, such review raises the question of the hierarchy of treaties in national law, which is an exception in international law, on which parties may reach an agreement. When reviewing the constitutionality of a treaty, the Constitutional Court does not review its consistency with international law, but with the Constitution. 3. Some Relevant Case Law of the Constitutional Court i. Direct Application of the ECHR According to the Constitutional Court, a treaty may not have supremacy over the Constitution.67 Nonetheless, the Constitutional Court may assign a constitutional status to a human right that stems from a treaty, if it turns out that such a right is not explicitly recognized by the Constitution. The Constitutional Court conferred a constitutional rank to the right of the defendant to examine witnesses against him as guaranteed in Article 6 (III) (d) of the ECHR.68 Article 29 of the Constitution, where the legal guarantees in criminal proceedings are enumerated, does not explicitly mention the right of the defendant to examine witnesses against him. In so deciding, the Constitutional Court cited Article 8 of the Constitution as a legal ground, according to which the ECHR applies directly. But the Constitutional Court dismissed the constitutional complaint, for it established that the procedural guarantee in question had not been violated. Later, the Court repeated this position and established that the said treaty right had indeed been violated.69 It reversed the challenged judgments and ordered that the right of the defendant to examine witnesses against him [Article 6 (III) (d) of the ECHR] be fully observed in a new trial. The Constitutional

67 Opinion Rm-1/97, Para. 12 of the reasoning. 68 Decision Up-207/99 of 4 July 2002, Off. Gaz. RS No. 65/02 and Collection of Decisions, XI/2, 266. 69 Decision Up-518/03 of 19 January 2006, Off. Gaz. RS, No. 11/06 and Collection of Decisions, XV/1, 37.

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Court reiterated its position that the procedural guarantee of the defendant to examine witnesses against him was not explicitly regulated in the Constitution, but this time it decided that the violation of Article 6 (III) (d) of the ECHR also violated Article 29 of the Constitution.70 ii. The Right of the Defendant to Use His Language and Script The defendant who was deprived of personal liberty lodged a constitutional complaint in the Lithuanian language.71 He alleged the violation of his rights as the criminal proceedings against him were conducted in the Russian language which he did not speak or understand fluently, as he was not a Russian citizen. He had difficulties communicating orally in Russian and could not read decisions written in the Russian language, due to the different script. First, the Constitutional Court examined whether all procedural requirements were met. In fact, the constitutional complaint was overdue as it was not lodged within the time limit of 60 days. Nonetheless, the Constitutional Court considered the present case was justified and under the circumstances, permitted an exceptional decision to be made on the overdue constitutional complaint.72 In addition, the legal remedies had not been exhausted, because the appeal as the ordinary legal remedy was not lodged. But the Constitutional Court reasoned that the complainant was not able to learn of the contents of the challenged decision as he did not know the language it was written in.73 Therefore, the Constitutional Court accepted the constitutional complaint for consideration as admissible. Regarding the merits, it examined whether all the requirements in respect of fair trial were met in the present case. It established that such requirements corresponded to those contained in Article 6 (I-III) of the ECHR.74 As the complainant was not able to communicate in writing with the court in the language he otherwise used for oral communication, the Constitutional Court asserted his rights to fair trial and to use one’s language and script

70 Decision Up-719/03 of 9 March 2006, Off. Gaz. RS No. 30/065 and Collection of Decisions, XV/41. 71 Decision Up-599/04 of 24 March 2005, Off. Gaz. RS No. 37/05 and Collection of Decisions, XIV, 38. 72 Ibid., Para. 10 of the reasoning. 73 Ibid., Para. 11 of the reasoning. 74 Ibid., Para. 15 of the reasoning.

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determined in Articles 22 and 62 of the Constitution were violated and annulled the challenged district court order. iii. The Rights of the Blind Plaintiff in Civil Proceedings The petitioner challenged the Civil Procedure Act (CPA) for it did not regulate the right of blind persons to a transcript in Braille of court documents and written applications of parties and other participants in proceedings.75 The court of first instance dismissed his request, stating that the CPA did not provide a legal basis that required courts to ensure transcripts of written applications in Braille to blind persons. The Constitutional Court limited its review only to the question whether blind persons are discriminated against in exercising their right to a fair trial when conducting written procedural acts.76 First, it examined the prohibition of discrimination due to personal circumstances and reasoned that the principle of non-discrimination supersedes the usual formal frameworks of equality and requires also de facto equal treatment; this standpoint has also been adopted in recent (Slovene and comparative) constitutional case-law, as well as in the caselaw of the ECtHR.77 Then the Constitutional Court resorted to the prohibition of discrimination due to disability. According to the Court’s assessment, numerous international instruments have increasingly emphasized that persons with disabilities must be ensured de facto equal treatment.78 The Constitutional Court also took into account the provisions of the EU Charter of Fundamental Rights that related to disabled persons.79 Finally, it turned to the UN Convention on the Rights of Persons with Disabilities of 13 December 2006, to which Slovenia is bound. It is interesting to note that the Constitutional Court did not assign this Convention self-executing effect. Instead, it assessed that from the day of its coming into force its provisions are binding on the National Assembly to adopt the relevant legislation in order to implement the rights belonging to blind persons.80 Consequently, the Constitutional Court established that the challenged

75 76 77 78 79 80

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provision of the PCA was inconsistent with the principle of non-discrimination within the meaning of Article 14 (I) of the Constitution. iv. The Review of the International Protection Act The Constitutional Court was seized to review the International Protection Act (IPA) upon the request of the Ombudsman for Human Rights (the applicant).81 He challenged several provisions of the said Act which regulated the national safe third country concept and alleged they were inconsistent with the Constitution and international law, as they did not guarantee the full respect of the principle of non-refoulment. The applicant also alleged that the Asylum Procedures Directive of 13 December 2005 narrowed the guarantees ensured by the Convention Relating to the Status of Refugees (Geneva Convention) and the Protocol Relating to the Status of Refugees.82 The Constitutional Court admitted that the international principle of non-refoulment was protected by Article 33 of the Geneva Convention, Article 3 of the ECHR and Article 18 of the Constitution that prohibit torture, or inhuman or degrading treatment or punishment.83 However, it decided to review the alleged inconsistency of the challenged provisions of the IPA with the principle of non-refoulment from the point of view of their conformity with the Constitution.84 The Constitutional Court assessed that the safe third country in the challenged Act had to be a party to the Geneva Convention and the ECHR and was obliged to observe supervisory mechanisms envisaged by the two Conventions.85 Therefore, the applicant’s allegation that the Asylum Procedures Directive narrowed the Geneva Convention was not true.86 However, the Constitutional Court abrogated as inconsistent with the Constitution a provision that related to the concept of the European safe third country because of its indefinite and unclear wording.87 The Court also decided that the provision of IPA that

81 Decision U-I-155/11 of 18 December 2013 (review of the International Protection Act), Off. Gaz. RS, 114/013. 82 Off. Gaz. SFRY, Treaties, Nos. 7/60 and 15/67, Off. Gaz. RS No. 35/92, Treaties, No. 9/92. 83 Ibid., Para. 11 of the reasoning. 84 Ibid., Para. 21 of the reasoning. 85 Ibid., Para. 23 of the reasoning. 86 Ibid. 87 Ibid., Paras. 29-31 of the reasoning.

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regulated the special procedure, with regard to the safe third country concept, was inconsistent with the Constitution, as it did not determine the suspensory effect of the legal remedy against the order rejecting an application for international protection. IV. Conclusion International human rights play a prominent role in the Slovenian national law. Slovenia became an independent State in 1991 and adopted the Constitution that was based on internationally recognized human rights and fundamental freedoms, democracy and the rule of law. Likewise, the Constitutional Court has been entrusted with the role of the highest judicial body for the protection of human rights and fundamental freedoms. By means of deciding on constitutional complaints it is empowered to abrogate the decisions of regular courts, including the Supreme Court, in case it establishes that constitutional rights have been violated before these courts and other bodies that are authorized to issue individual legal acts. Slovenian courts, including the Constitutional court, practice moderate dualism enshrined in Article 8 of the Slovenian constitution. Consequently, ratified and published human rights treaties are applied directly and have supremacy over laws and other regulations. The same is true in respect of generally accepted principles of international law, including human rights norms of customary international law. In its case law the Constitutional Court has consistently addressed international human rights law. It is moreover so in respect of the ECHR and the case-law of the Strasbourg Court. But it must be observed that the Constitutional court predominantly applies the human rights provisions from the Constitution as the measure of adjudication in its jurisprudence although, these provisions are equivalent to well-established international human rights norms and were as such adopted in the Slovenian Constitution. This is a consequence of the fact that the Constitutional Court is the national court of the highest instance and does not recognize the supremacy of international law over the Constitution. On the other hand, it has admitted that the principles of EU law, including the principle of supremacy of EU law, also bind the Constitutional Court in the exercise of its jurisdiction in the framework of legal relations that concern EU law. Likewise, this applies to the EU Charter on Fundamental Rights, secondary EU human rights legislation and the case law of the Luxemburg Court. 92

International Human Rights and their Enforcement in the German Legal Order Désirée Hofmann

Abstract The contribution deals with the enforcement of international human rights in the German legal order. Firstly, it addresses the transformation of international law into German. Secondly the article deals with the enforcement of human rights in Germany by focusing on social human rights and compares it to the ECHR system in Germany as well. Finally, reasons for the different treatment of ECHR and international rules will be explored. It is argued that the German national courts are granting human rights a special status if they deem it necessary in light of the facts of the case. I. Introduction When examining the treatment of international human rights in Germany, it is easy to identify a different standard in the treatment of those rights deriving from the European Convention on Human Rights (from here on ECHR) and those which derive from universal UN conventions like IC-

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CPR1, ICESCR2, ICERD3, CEDAW4, CRC5, and CRPD6. This Article mainly concentrates on the treatment of universal human rights treaties. The term “universal human rights treaties” is used in order to distinguish the UN conventions on human rights which may be signed by any state against the regional human rights treaties, like the ECHR7. First, the Article explains shortly the process needed for the adoption of international human rights treaties in Germany and their status within the German legal system. Then it looks at the importance of the enforcement of those human rights by the national courts. The third chapter provides an overview of German case law involving universal human rights treaties and refers also to a few cases concerning the ECHR in order to demonstrate a differentiation in the treatment of universal human rights treaties

1 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (Gesetz zu dem Internationalen Pakt vom 19. Dezember 1966 über bürgerliche und politische Rechte, BGBl. 1973 II, 1533). 2 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), 999 UNTS 3 (Gesetz zu dem Internationalen Pakt vom 19. Dezember 1966 über wirtschaftliche, soziale und kulturelle Rechte BGBl. 1973 II, 1569). 3 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entered into force 4 January 1969) 660 UNTS 195 (Bekanntmachung über das Inkrafttreten des Internationalen Übereinkommens vom 7. März 1966 zur Beseitigung jeder Form von Rassendiskriminierung BGBl. 1969 II, 2211). 4 International Convention on the Elimination of All Forms of Discrimination against Women (opened for signature 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (Gesetz zu dem Übereinkommen vom 18. Dezember 1979 zur Beseitigung jeder Form von Diskriminierung der Frau BGBl. 1985 II, 648). 5 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (Gesetz zu dem Übereinkommen vom 20. November 1989 über die Rechte des Kindes BGBl. 1992 II, 122). 6 Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 (Gesetz zu dem Übereinkommen der Vereinten Nationen vom 13. Dezember 2006 über die Rechte von Menschen mit Behinderungen sowie zu dem Fakultativprotokoll vom 13. Dezember 2006 zum Übereinkommen der Vereinten Nationen über die Rechte von Menschen mit Behinderungen BGBl. 2008 II, 1420). 7 Convention for the Protection of Human Rights and Fundamental Freedoms (Bekanntmachung über das Inkrafttreten des Protokolls Nr. 14 vom 13. Mai 2004 zur Konvention zum Schutz der Menschenrechte und Grundfreiheiten über die Änderung des Kontrollsystems der Konvention BGBl. 2010 II, 1198).

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and the ECHR. Lastly, the Article tries to identify in the fourth chapter possible causes for the different treatment of universal human rights treaties and the ECHR. II. Status and Adoption of Human Rights in Germany The German Basic Law is conceptualized on the assumption that international law and national law have a moderate dualistic relationship.8 This means that both legal systems are structurally different and touch on different matters.9 On the one hand, international law only creates obligations between states whilst on the other hand, national law circumscribes the relationship between the state and the individual.10 However, there are some areas where international and national law overlap or cross-reference one another.11 This is especially the case in the context of international human rights, which are aimed at the individual and do not primarily relate to obligations between states. Therefore, a pure dualistic approach cannot be maintained. The German Basic Law contains different provisions, which open up the German legal order to international law. Art. 25 of the German Basic Law provides that customary international law is applicable in Germany without further implementation. According to Art. 59 (2) of the German Basic Law, an international treaty requires a special federal Act to grant it legal effect in Germany. This act must receive the approval of the German parliament in order to be enacted and thus this act also shows the approval of the international treaty by the German parliament.

8 BVerfG 14.10.2004, 2 BvR 1481/04, BVerfGE 111, 113 (115) M Schweitzer, Staatsrecht III: Staatsrecht, Völkerrecht, Europarecht (10th edn, C.F.Müller 2010) 15; R Streinz, in M Sachs (ed), Grundgesetz: Kommentar (7th edn), C.H.Beck 2014) art 25 para 19. 9 Rudolf, in: Seidl-Hohenveldern (ed), p. 313 (314). 10 P Guggenheim and K Marek, ‘Verträge, Völkerrechtliche’ in K Strupp and HJ Schlochauer (eds), Wörterbuch des Völkerrechts, 2nd edn, vol III (Berlin 1962) 651; M Schweitzer (n 8) 12; H Triepel, Völkerrecht und Landesrecht (C.L. Hirschfeld 1899) 12ff. 11 A Bleckmann, ‘Das Verhältnis des Völkerrechts zum Landesrecht im Lichte der „Bedingungstheorie”’ (1979) 18 AVR 257, 265; K Rudolf, in I Seidl-Hohenveldern (n 9) 314; A Cassese, International Law (2nd edn, OUP 2005) 217; A Verdross and B Simma, Universelles Völkerrecht. Theorie und Praxis (3rd edn, Duncker & Humblot 1984) 56.

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1. Status and Adoption of Human Rights Treaties All human rights are codified in human rights treaties. Therefore, one has to consider Art. 59 (2) of the German Basic Law when examining the status and adoption of human rights in the German legal order. This means that every human rights treaty requires a federal act under Art. 59 (2) of the German Basic Law which brings the treaty into effect in the national legal order. There are different jurisprudential theories concerning the enforcement of international law in the national legal order. These theories have all a different explanation for the implementation of universal human rights treaties into a national legal order. The two most prominent concepts being the transformation theory and the enforcement theory. a. Transformation Theory The transformation theory essentially considers the provisions of an international treaty, original national law without further acts of implementation within the national legal system.12 Thus the international origin of a provision which stems from an international treaty is lost, which may lead to a total disconnection of the transformed treaty provision from its international law context because it is now considered only national law and therefore governed by the national legal order.13 According to a more moderate view of the transformation theory, the transformed law remains rooted within the international context and only the circle of addressees is changed.14 Thus, the interpretation of the provisions, the validity and the entrance into force are still governed by international law.15

12 K Rudolf, in I Seidl-Hohenveldern (n 9) 315; Verdross/Simma (n 11) 345. 13 C Amrhein-Hofmann, Monismus und Dualismus in den Völkerrechtslehren (Duncker & Humblot 2003) 301; M Schweitzer (n 8) 168. 14 R Pfeffer, Das Verhältnis von Völkerrecht und Landesrecht: Eine kritische Betrachtung alter und neuer Lehren unter besonderer Berücksichtigung der Europäischen Menschenrechtskonvention (Mohr Siebeck 2009) 134; T Schweisfurth, Völkerrecht (Mohr Siebeck 2006) 199. 15 G Dahm, J Delbrück and R Wolfrum, Völkerrecht: Die Grundlagen. Die Völkerrechtssubjekte, vol I/1 (2nd edn, De Gruyter 1989) 105; K Rudolf, in I Seidl-Hohenveldern (n 9) 316 -.

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b. Enforcement Theory According to the enforcement theory, the national act operates as an enforcement order which obliges the administration, the courts and the government body to carry out the provisions of the international treaty.16 Therefore, the treaty remains completely in the realm of international law and is merely enforced in the national legal order.17 One could say that the state opens its sovereignty for the treaty provisions.18 This means in the context of human rights, that the state accepts the validity of human rights treaties for individuals and does not only see them as obligations between states. c. Art. 59 (2) Under Those Theories It is not clear which theory the German Basic Law follows. The German Constitutional Court seems to rather follow the enforcement theory.19 In contrast, the German Federal Administrative Court follows the moderate transformation theory for procedural reasons.20 It is not necessary to assign Art. 59 (2) of the German Basic Law to either theory since both may, in their moderate shape, come to the same conclusion. Both theories make the provisions of international human rights treaties only directly applicable when they are self-executing.21 A treaty provision is self-executing, if

16 K Rudolf, in I Seidl-Hohenveldern (n 9) 315; C Amrhein-Hofmann (n 13) 302; Schweitzer (n 8) 168. 17 G Dahm, J Delbrück and R Wolfrum (n 15) 106; P Kunig, in: W Graf Vitzthum (ed), Völkerrecht (De Gruyter 1997) 80. 18 F Becker, ‘Völkerrechtliche Verträge und parlamentarische Gesetzgebungskompetenz’ (2005) NVwZ, 289, 290; A Bleckmann (1979) 18 AVR 257, 268. 19 BVerfG 22.10.1986, 2 BvR 197/83, BVerfGE 73, 339 (367); H Steinberger, ‘Entwicklungslinien in der neueren Rechtsprechung des Bundesverfassungsgerichts zu völkerrechtlichen Fragen’ (1988) 48 ZaöRV 1, 4. 20 BVerwG 17.10.1995, 9 C 15.95, BVerwGE 99, 331 (333); BVerwG 18.5.2000, 5 C 19.98, BVerwGE 111, 200 (201); O Rojahn, ‘Die Auslegung völkerrechtlicher Verträge in der Entscheidungspraxis des Bundesverwaltungsgerichts’ in R Geiger (ed), Völkerrechtlicher Vertrag und staatliches Recht vor dem Hintergrund zunehmender Verdichtung der internationalen Beziehungen (Nomos 2000) 124. 21 A Bleckmann, Völkerrecht (Nomos 2001) 145; A Randelzhofer, ‘Incorporation of International Treaties into Municipal Law’ in GI Tunkin and R Wolfrum (eds), International Law and Municipal Law (Duncker & Humblot 1988) 110.

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it is sufficiently clear and does not require further legislative concretization.22 d. Status of Human Rights Treaties Moreover, when international treaty provisions are enforced or transformed into national legal orders, neither theory assigns a special status in the national legal order to the enforced or transformed treaty provisions. The act giving effect to the international treaty under Art. 59 (2) of the German Basic Law has to be a federal Act. Any act which transforms or enforces the international treaty cannot accord a higher status in the national legal order than its own to the transformed or enforced provisions.23 Accordingly, the transformed human rights treaty will also have the status of federal law. 2. Status and Adoption of Customary Human Rights Although all human rights are codified in international treaties some are additionally considered customary international law. This raises the question whether Art. 25 or Art. 59 (2) of the German Basic Law are applicable to those rights. Although Art. 59 (2) is lex specialis for international treaties, one should still apply Art. 25 to grant customary human rights the highest possible status in the German legal order.24 Art. 25 assigns those rights a status above the federal laws but under the German Constitution. Furthermore, those rights are adopted without any further act of implementation.25

22 C Amrhein-Hofmann (n 13) 304; A Bleckmann, Grundgesetz und Völkerrecht (Duncker & Humblot 1975) 284. 23 K Doehring, Völkerrecht (2nd edn, C.F.Müller 2004) 312; C Amrhein-Hofmann (n 13) 318. 24 A Bleckmann, ‘Der Grundsatz der Völkerrechtsfreundlichkeit der deutschen Rechtsordnung’ (1996) DÖV, 137, 141; R Geiger, Grundgesetz und Völkerrecht. Mit Europarecht, (6th edn, C.H.Beck 2013) 144. 25 BVerfG 13.12.1977, 2 BvM 1/76, BVerfGE 46, 342 (403); H Bungert, ‘Einwirkung und Rang von Völkerrecht im innerstaatlichen Rechtsraum’ (1994) DÖV 797, 799; R Geiger (n 24) 149.

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3. Interpretation of German Law in Conformity with International Human Rights A problem which arises when international treaties are accepted as federal law in Germany, is when those laws conflict with other laws under the lex posterior rule. According to the lex posterior rule, a newer law overrules any existing older law with the same status.26 Hence, the parliament could easily change Germany’s obligations under a human rights treaty by passing a new federal law. However, the German constitutional court ruled that German law has to be interpreted in accordance with international law, even if the German legislation is the most recently enacted, since one cannot assume that the parliament intended to violate Germany’s obligations under international law, except if it explicitly stated its will to deviate from the international provision.27 Therefore, interpreting a German law, one has to read it in accordance with international law, especially international human rights.28 III. Enforcement of Human Rights Treaties in the German Legal Order Different measures exist for the enforcement of human rights. The treaties and their optional protocols themselves provide some enforcement procedures on the international level. Since they are subsidiary to domestic remedies, the enforcement by national courts is even more important. 1. International Remedies The procedures to grant remedies at an international level involve a reporting system, inquiries and communications, which may be either introduced by a state or an individual. The communication procedures are default procedures when domestic remedies fail because the respective Committee will only consider a communication once all domestic remedies

26 M Schweitzer (n 8) 176. 27 BVerfG 26.3.1987, 2 BvR 589/79, BVerfGE 74, 358 (370); BVerfG 14.10.2004, 2 BvR 1481/04, BVerfGE 111, 307 (317 f). 28 G Boehmer, Der Völkerrechtliche Vertrag im deutschen Recht (Heymann 1965) 71.

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have been exhausted.29 One important weakness of the communication procedures is that the treaties and their optional protocols do not provide sanctions or compulsory measures in case a State does not comply with the views of the Committee which are provided in the communications.30 Only the ECHR stipulates a duty to comply with the judgments of the Court and provides for a supervisory mechanism in Art. 46. According to this Article, the Committee of Ministers may review the compliance with a Judgment of the Court. However, there are no further enforcement measures other than being supervisory or exerting political pressure.31 2. Enforcement by German Courts Since international remedies may only be sought if domestic remedies are exhausted, the national courts are a very important organ for the enforcement of human rights treaties. The German courts are generally responsible for the enforcement of the law and are often seen as guardians of the law in Germany.32 Therefore,

29 Art 2, art 5 para 2 lit b OP- ICCPR; Art 3 n 1 OP-ICESCR; art 14 para 2 CERD; Art 7 lit e OP-CRC complaints procedure; Art 4 para 1 OP-CEDAW; Art 22 para 5 lit b Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (adopted 10 December1984, entered into force 26 June 1987) 1465 UNTS 85; Art 2 lit d OP-CRPD; Art 31 para 2 lit d International Convention for the Protection of All Persons from Enforced Disappearance (ICPED) (adopted 20 December 2006, entered into force 23 December 2010) 2716 UNTS 3.. 30 B Schäfer, Die Individualbeschwerde nach dem Fakultativprotokoll zum Zivilpakt (2nd edn, German Institute for Human Rights 2007) 20; HJ Steiner, ‘Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee’ in P Alston and J Crawford (eds), The Future of the UN Human Rights Treaty Monitoring (Cambridge University Press 2000) 37. 31 C Grabenwarter and K Pabel, Europäische Menschenrechtskonvention: Ein Studienbuch (5th edn, C.H.Beck 2012) 108; A Peters and T Altwickler, Europäische Menschenrechtskonvention: Mit rechtsvergleichenden Bezügen zum deutschen Grundgesetz (2nd edn, C.H.Beck 2012) 295; J Meyer-Ladewig, Europäische Menschenrechtskonvention: Handkommentar (3rd edn, Nomos 2011) Art 46 para 43; T Schilling, Internationaler Menschenrechtsschutz: Das Recht der EMRK und des IPbpR (2nd edn, Mohr Siebeck 2010) 338. 32 B Simma and others, ‘The Role of German Courts in the Enforcement of International Human Rights’ in B Conforti and F Franconi (eds), Enforcing international human rights in domestic courts (Martinus Nijhoff Publishers 1997) 71.

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they are also responsible for the enforcement of human rights treaties. According to Art. 19 (4) of the German Basic law, every individual has the right to take recourse to the courts if his rights have been violated by the authorities. Human rights treaties confer rights on the individual in the sense of Art. 19 (4) of the German Basic Law.33 This is especially true for those provisions which are self-executing and therefore, directly applicable.34 However, most provisions of human rights treaties are not directly applicable because of their imprecise wording and so the courts generally do not accept their direct applicability. Yet, those rights are indirectly applicable when interpreting German basic rights or other German law.35 Therefore, one has to argue in a first step that a right available under the Basic Law or other German law is violated and in a second step that international human rights law has to be considered when interpreting the violated German right.36 When this form of omission takes place, one may take recourse to the appropriate court. Furthermore, some human rights treaties stipulate a right of recourse to domestic courts37, which advances the idea that international procedures are subsidiary to domestic remedies. It shows that domestic remedies have to be made available by the State party to a human rights treaty, in the case of a violation of a human right.38 Overall, the protection and enforcement of international human rights is an important duty of the German Courts.

33 H Schulze-Fielitz, in H Dreier (ed), Grundgesetz Kommentar: Band I, Artikel 1-19 (3rd edn, Mohr Siebeck 2013) art 19 para 61; W-R Schenke, in W Kahl, C Waldhoff and C Walter (eds), Bonner Kommentar zum Grundgesetz. Loseblattsammlung (167th edn, C.F.Müller 2014), Art 19 para 141, 428. 34 J Schneider, Die Justiziabilität wirtschaftlicher, sozialer und kultureller Rechte (German Institute for Human Rights 2004) 39. 35 BVerfG 4.5.1971, 1 BvR 636/68, BVerfGE 31, 58 (67); BVerfG 26.3.1987, 2 BvR 589/79, BVerfGE 74, 358 (370); BVerfG 14.11.1990, 2 BvR 1462/87, BVerfGE 83, 119 (128); BVerfG 1.7.1998, 2 BvR 441/90, BVerfGE 98, 169 (206); E Klein, 'Schutz der Grund- und Menschenrechte durch die Verwaltungsgerichtsbarkeit’ (2003) LKV 74, 75; K-P Sommermann, ‘Völkerrechtlich garantierte Menschenrechte als Maßstab der Verfassungskonkretisierung: Die Menschenrechtsfreundlichkeit des Grundgesetzes’ (1989) 114 AöR 391, 402. 36 BVerfG 21.2.1992, 2 BvR 1662/91, BVerfGE 77, 170 (232); J Schneider (n 34) 39; B Simma and others (n 32) 77. 37 Art 2 para 3 ICCPR; art 6 CERD; art 14 CAT. 38 Human Rights Committee ‘General Comment 9: The domestic application of the Covenant’ (3 December 1998) UN-Doc E/C.12/1998/24 para 9.

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IV. Human Rights Treaties before German Courts As the German judiciary is the main body to uphold human rights treaties in Germany, the effectiveness of their enforcement can be analyzed through their Judgments. However, there is a great difference in the treatment of the universal human rights treaties and the treatment of the ECHR. 1. Universal Human Rights Treaties before German Courts When analyzing the treatment of universal human rights treaties one can observe different approaches. Some courts do not consider the provisions of human rights treaties at all. Others argue that the treaties are not applicable, whereas some apply the human rights treaties indirectly or directly.39 a. Non-Examination of Human Rights Treaties In a number of cases, German courts do not examine international human rights treaties in their Judgments, even when they are relevant. Most courts state that human rights treaties do not confer further rights than the German Basic Law or the ECHR, therefore do not need to be tested.40 Those courts appear to be convinced that the German Basic Law creates such a high standard of individual rights, that international law could hardly offer any improvement. Sometimes, they substantiate this statement with a short comparison to the relevant provisions.41 However, more often

39 For a detailed analysis see: D Hofmann, Die Umsetzung internationaler universeller Menschenrechtspakte in Deutschland (Peter Lang 2017) 95. 40 BVerwG 19.3.1996, 1 C 34/93, NVwZ-RR 1997, 317 (319); OLG Köln 21.4.1998, 22 U 190/97, NJW 1998, 3721 (3723); BVerwG 13.6.2013, Rs. 10 C 16/12, NVwZ 2013, 1493 para 24. 41 BVerfG 20.10.1981, 1 BvR 404/78, NJW 1982, 815 (817); BVerwG 26.3.1982, 1 C 29/81, NJW 1982, 1958 (1960);BVerwG 18.9.1984, 1 A 4/83, NJW 1984, 2775 (2780); OVG Thüringen 30.9.1998, Rs. 3 KO 864/98, NVwZ-Beil. 1999, 19 (20-21); VerfG Brandenburg 30.6.1999, VfGBbG 3/98, LKV 1999, 450 (451-452); OVG Bautzen 24.9.2003, 2 BS 273/03, LKV 2004, 129 (132).

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than not the courts do not even undertake such a comparison.42 This is especially problematic in cases where it is not obvious whether the provisions contain the same standard of protection. b. No Violation of Human Rights Treaties Many cases concentrate on the question whether a human rights norm is violated, without examining whether the norm is applicable. The courts mostly come to the conclusion, that no human right of a universal human rights treaty is violated and thus, it is not necessary to resolve the applicability or status of the provision. The courts often negate a violation of a universal human rights treaty based on very brief examinations.43 This may take place by merely stating that the right has not been touched44 or on the assumption that any violation is justified by the law and important reasons of the common good.45 c. Human Rights Treaties Not Directly Applicable Many courts argue that the provisions of human rights treaties are not directly applicable because they are not self-executing. Especially, the provi-

42 VG Regensburg 3.3.1994, 12 K 93/2170, NJW 1994, 2040; BVerwG 19.3.1996, 1 C 34/93, NVwZ-RR 1997, 317 (319); OLG Köln 21.4.1998, 22 U 190/97, NJW 1998, 3721 (3723); VG Hannover 14.12.2006, 6 A 3640/06, NdsVBl. 2007, 138; BSG 5.5.2010, B 12 KR 14/09 R, NZS 2011, 263 para 25; BVerwG 13.6.2013, 10 C 16/12, NVwZ 2013, 1493 para 24. 43 BVerwG 20.4.2007, 5 B 129/07, BeckRS 2007, 23827 para 6; OVG Bremen 25.9.2009, S 3 A 272/07, BeckRS 2010, 46192; OVG Koblenz 27.10.2011, 7 A 10405/11;OVG, BeckRS 2011, 55559; OVG Lüneburg 7.1.2013, 13 PA 243/12, BeckRS 2013, 45530; VGH München 24.2.2014, 10 ZB 11.2268, BeckRS 2014, 48596 para 17, 21. 44 VGH Mannheim 15.10.1996, 10 S 176/96, NJW 1997, 754 (757); OVG Hamburg 17.6.2004, 1 Bf 198/00, BeckRS 2004, 24353. 45 OLG Stuttgart 7.5.1982, 3 Ss (12) 41/82, NStZ 1982, 385 (386); BVerwG 28.6.1983, 9 C 15/83, DVBl. 1983, 1014; OLG Stuttgart 27.11.1985, 3 Ss 383/85, NVwZ 1986, 246 (247); VGH Kassel 10.7.1995, 9 UE 3213/94, NVwZ-RR 1996, 543 (544); BVerwG 22.1.1998, Rs. 2 C 4/97, NVwZ 1999, 404.

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sions of the CRPD46 and the ICESCR47 are often seen as programmatic and non-binding obligations by the courts. Furthermore, in the opinion of many German courts universal human rights treaties do not confer individual rights.48 More often than not, the courts do not test a specific provision on its direct applicability but question whether the whole treaty is directly applicable.49 This approach leads to giving considerable attention to unspecific provisions like Art. 2 (1) of the ICESCR. This provision stipulates that a State party shall undertake steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the ICESCR by all appropriate means. Although such provisions aim at the effective implementation of human rights, the progressive character of the obligation to fulfill these rights is seen as a hint for the unbinding character.50 Therefore, most German courts do not approve a claim that is substantially based on an international human right or the violation thereof.

46 VGH Kassel 12.11.2009, 7 B 2763/09, NVwZ-RR 2010, 602 (604); OVG Münster 16.6.2010, 13 B 653/10, BeckRS 2010, 49944; OVG Lüneburg 16.9.2010, 2 ME 278/10, BeckRS 2010, 53110; VGH Mannheim 21.11.2012, 9 S 1833/12, BeckRS 2012, 60565. 47 VG Hannover 8.6.2007, 6 B 8296/06, BeckRS 2007, 25388; VGH Mannheim 16.2.2009, 2 S 1855/07, BeckRS 2009, 31491; VGH Mannheim 16.2.2009, Rs. 2 S 2554/07, BeckRS 2009, 31980; VGH Mannheim 16.2.2009, 2 S 2833/07, BeckRS 2009, 31979. 48 VG Augsburg 31.10.2001, Au 1 S01.1223, BeckRS 2001, 19127 para 32; LSG Sachsen-Anhalt 3.12.2009, L 5 AS 103/07, BeckRS 2011, 65345; LSG SachsenAnhalt 3.3.2011, L 8 SO 24/09 B ER, BeckRS 2011, 70741; OVG Lüneburg 2.10.2012, 8 LA 209/11, BeckRS 2012, 57834. 49 OVG Berlin 28.10.1982, 6 S 10182, BeckRS 1982, 31208466; OVG Hamburg 26.1.1995, Bs VII 126/94, BeckRS 1995, 12971 para 8; VG Berlin 20.1.1999, 12 A 551/98, NVwZ-RR 1999, 748 (754); OVG Hamburg 21.12.2004, 1 Bs 535/04, NVwZ-RR 2005, 258; OVG Münster 22.8.2006, 18 B 1209/06, BeckRS 2006, 25180. 50 B-A Andreassen, A Smith and H Stokke, ‘Compliance with Economic and Social Human Rights: Realistic Evaluations and Monitoring in the Light of Immediate Obligations’ in A Eide and B Hagtvet (eds), Human Rights in Perspective: A Global Assessment (Blackwell Publishers 1992) 254; A Chapman and S Russell, ‘Introduction’ in A Chapman and S Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia 2002) 5.

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d. Indirect Application of Human Rights Treaties In more recent decisions, German courts seem to have discovered universal human rights treaties as a means for the interpretation of German Law, even the Basic Law.51 Some courts used the ICCPR in order to develop the nemo-tenetur principle52 or the presumption of innocence.53 The ICESCR was used by the German Constitutional Court when determining the scope of the subsistence level in accordance with Art. 1 and 20 of the German Basic Law.54 German laws, especially the Basic Law, often include vague legal concepts. Interpreting these concepts in conformity with international human rights treaties is seen as an important principle.55 A few courts also set the minimal legal standard of protection for individuals with the aid of human rights treaties, e.g. the fair-trial-standard.56 Some human rights treaties, that protect certain groups of people, are particularly important for the interpretation of equality rights.57

51 BVerfG v. 14.11.1973, 1 BvR 719/69, NJW 1974, 545; LG Berlin 24.10.1991, (551 Rh) 3 Js 676/90 (1150/91), VIZ 1992, 245; VGH Kassel 12.11.2009, 7 B 2763/09, NVwZ-RR 2010, 602; BVerfG 23.3.2011, 2 BvR 882/09, BeckRS 2011, 49744; OVG Berlin-Brandenburg 8.9.2011, OVG 3 B 24.09, BeckRS 2011, 54118; VGH Mannheim 21.11.2012, 9 S 1833/12, BeckRS 2012, 60565; BVerwG 30.1.2013, 5 C 6.12, BeckRS 2013, 47172 para 36ff. 52 BVerfG 13.1.1981, 1 BvR 116/77, NJW 1981, 1431; BGH 27.2.1992, 5 StR 190/91, NZV 1992, 242 (243); BGH 1.4.1992, 5 StR 457/91, NJW 1992, 1637 (1638); BayObLG 25.10.1994, 1 ObOWi 446/94, BayObLGSt 1994, 208 (212); BVerfG 7.7.1995, 2 BvR 326/92, NStZ 1995, 555; BGH 13.5.1996, GSSt 1/96, NStZ 1996, 502 (504); BGH 15.9.1999, 1 StR 286-99, NJW 1999, 3788 (3789); BGH 26.7.2007, 3 StR 104/07, NJW 2007, 3138 (3140). 53 OLG Braunschweig 29.9.1980, 1 W 44/80, BeckRS 1980, 31331667. 54 BVerfG 18.7.2012, 1 BvL 10/10, 1 BvL 2/11, NVwZ 2012, 1024. 55 BVerfG 26.3.1987, 2 BvR 589/79, BVerfGE 74, 358 (370); BVerfG 29.6.1990, 2 BvR 254, 1343/88, BVerfGE 82, 106 (120); BVerfG 14.10.2004, 2 BvR 1481/04, BVerfGE 111, 307 (317). 56 OLG Hamm 10.6.1997, 1 Ws 173/97, NStZ 1997, 566 (568); OLG Celle 7.2.2001, 32 Ss 101/00, NStZ 2002, 386 para 4. 57 VGH Kassel 12.11.2009, 7 B 2763/09, NVwZ-RR 2010, 602; VGH Mannheim 21.11.2012, Rs. 9 S 1833/12, BeckRS 2012, 60565.

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e. Direct Application of Human Rights Treaties In contrast to the high number of cases dealing with the indirect application of universal human rights treaties, there are very few cases in which the courts have applied a human rights treaty provision directly. The ICCPR was often used to process the injustice of the German Democratic Republic (DDR). It helped to determine the specific conduct by state organs of the DDR which violated human rights and whether there were any conditions under which these violations could be justified.58 Most cases dealt with the border guard’s trials59 and perversion of justice.60 In these cases, the ICCPR substituted as a default legal-order since no other functioning or applicable legal-order was available.61 The Convention on the Rights of the Child (CRC) was applied directly in a few cases although the German government made a declaration upon ratification of the CRC, that it is not directly applicable in Germany. Nevertheless, two courts decided in their respective cases that the only just decision was granting the claimant a right of residence under the CRC.62 One court argued that the declaration of the German government concerning the applicability of the CRC cannot apply to those provisions of the CRC, which have to be considered customary law, and therefore used the best interest of the child according to Art. 3 (1) CRC as the decisive factor.63 Another court decided that an old provision of the German Civil

58 BGH 3.11.1992, 5 StR 370/92, NJW 1993, 141; BGH 25.3.1993, 5 StR 418/92, NJW 1993, 1932 (1935); BGH 13.12.1993, 5 StR 76/93, NJW 1994, 529 (532); BGH 26.7.1994, 5 StR 167/94, NJW 1994, 2708 (2709); BGH 20.3.1995, 5 StR 111/94, NJW 1995, 2728 (2731); BGH 16.11.1995, 5 StR 747/94, NJW 1996, 857 (859); SächsVerfGH 6.11.1998, Vf. 16-IX-98, LKV 1999, 183; BGH 6.11.2002, 5 StR 281/01, NJW 2003, 522. 59 BGH 3.11.1992, 5 StR 370/92, NJW 1993, 141; BGH 25.3.1993, 5 StR 418/92, NJW 1993, 1932 (1935); BGH 26.7.1994, 5 StR 167/94, NJW 1994, 2708 (2709); BGH 20.3.1995, 5 StR 111/94, NJW 1995, 2728 (2731). 60 BGH 13.12.1993, 5 StR 76/93, NJW 1994, 529 (532); BGH 16.11.1995, 5 StR 747/94, NJW 1996, 857 (859); BVerfG 7.4.1998, 2 BvR 2560-95, NJW 1998, 2585 (2586); BGH 22.4.1998, 3 StR 644-97, NStZ-RR 1999, 43, BVerfG 12.5.1998, 2 BvR 61-96, NJW 1998, 2587 (2589). 61 B Simma and others (n 32) 106 f. 62 BVerfG 20.12.2007, 2 BvQ 51/07, BeckRS 2008, 30828; BVerfG 9.12.2008, 2 BvR 2368/08, BeckRS 2011, 48310 para 17; OLG Rostock 30.8.2011, 1 Ausl 28/11 I 21/11, BeckRS 2011, 22279. 63 VG Stuttgart 11.10.2005, 11 K 5363/03, BeckRS 2005, 30372.

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Code, which stipulated that an illegitimate child was under the exclusive parental care of the mother, violated the CRC.64 Some years after these decisions, the German government withdrew in 2010 its declarations made upon ratification of the CRC concerning the applicability of the CRC. In 2012, a court had to deal with conflicting rights of a disabled child and the rights of able-bodied children. The parents of the disabled child wanted their child to be educated in an inclusive class according to Art. 24 of the CRPD.65 However, the uncooperative behavior of the disabled child disturbed the other children in the class and interfered with their right to education. In order to balance these rights, the court did not use the German Basic Law, but the ICESCR and the CRC.66 With this approach, the court could balance rights of the same origin and status. 2. ECHR before German Courts The recognition of the ECHR in German jurisprudence has improved significantly. In cases concerning the personal rights of Princess Caroline of Monaco, later of Hannover, the German Constitutional Court ruled that German courts have to consider the decisions of the ECtHR. It acknowledged that German law has to be interpreted in accordance with the ECHR and the decisions of the ECtHR.67 However, there is no duty of German Courts to follow the decisions of the ECtHR and they are not binding for German courts.68 In the case of Görgülü69 which concerned a father’s right to custody of his son, the German Constitutional Court followed rulings by the ECtHR as the leading interpretation of the ECHR. It also acknowledged, that the rulings of the ECtHR are binding for the German courts.70 Furthermore, the provisions of the ECHR as interpreted by the ECtHR, are the leading

64 65 66 67 68

AG Kamen 4.8.1995, 10 X I 451, NJW-RR 1996, 199 (202). VGH Mannheim 21.11.2012, 9 S 1833/12, BeckRS 2012, 60565. VGH Mannheim 21.11.2012, 9 S 1833/12, BeckRS 2012, 60565. BVerfG 26.2.2008, 1 BvR 1602/07, NJW 2008, 1793 para 67. U Heckötter, Die Bedeutung der Europäischen Menschenrechtskonvention und der Rechtsprechung des EGMR für die deutschen Gerichte (Heymanns 2008) 111. 69 BVerfG 14.10.2004, 2 BvR 1481/04, BVerfGE 111, 307. 70 BVerfG 14.10.2004, 2 BvR 1481/04, BVerfGE 111, 307 para 45.

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means for the interpretation of the content and scope of the German Basic Rights.71 However, the duty to comply with the rulings of the ECtHR is not absolute. In the cases on preventive custody, the German Constitutional Court pointed out, that there is no automatic harmonization of the ECtHR jurisprudence and the German jurisprudence.72 Instead, one has to embed the rights of the ECHR in the system of German law in the course of an active reception process.73 These cases show that the value of the judgments of the ECtHR has increased. Nowadays, ECtHR judgments are considered one of the most important means for interpreting German law. However, these cases also demonstrate that the duty to adhere to the judgments of the ECtHR is not an absolute one. V. Difference between Universal Human Rights Treaties and the ECHR The most obvious difference in the treatment of universal human rights treaties and the ECHR is that there is a much higher relevancy accorded to the ECHR, than to the universal human rights treaties. Another difference is that the decisions of the ECtHR are treated as an important means for the interpretation of the rights of the Convention, whereas the opinions of the Human Rights Committees are often seen as non-relevant. In many decisions the German courts even point out that they do not see any evidence why they should consider the opinions of the Committees.74 In this respect, the main difference of universal human right treaties to the ECHR is the lack of a provision similar to Art. 46 (1) ECHR, which

71 72 73 74

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BVerfG 14.10.2004, 2 BvR 1481/04, BVerfGE 111, 307 para 32. BVerfG 4.5.2011, 2 BvR 2365/09, BVerfGE 128, 326 para 91 f. BVerfG 4.5.2011, 2 BvR 2365/09, BVerfGE 128, 326 para 91 f. BSG 17.1.2013, B 5 RS 27/12 B, BeckRS 2013, 66089 para 8; BSG 30.4.2013, B 5 RS 48/12 B, BeckRS 2013, 69026 para 9; BSG 27.6.2013, B 5 R 124/13 B, BeckRS 2013, 70681 para 9, BSG 3.7.2013, B 5 RS 18/13 B, BeckRS 2013, 70775 para 9; BSG 26.11.2013, B 5 RS 21/13 B, BeckRS 2013, 75031 para 9; BSG 8.1.2014, B 5 RS 35/13 B, BeckRS 2014, 66188 para 9; BSG 27.1.2014, B 5 R 346/13 B, BeckRS 2014, 66322 para 9; BSG 15.4.2014, B 5 RS 31/13 B, BeckRS 2014, 69241 para 9; BSG 30.4.2014, B 5 RS 47/13 B, BeckRS 2014, 69447 para 9; BSG 29.10.2014, Rs. B 5 R 238/14 B, BeckRS 2014, 73769 para 9; BSG 10.11.2014, B 5 RS4/14 B, BeckRS 2014, 73945 para 10.

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stipulates that the judgments of the ECtHR are binding. Although the binding effect, as lain down in Art. 46 (1) ECHR, only effects the state party in the respective case, those judgments are also considered binding for the other state parties because they reflect the current state of the ECHR rights as interpreted by the ECtHR.75 Furthermore, the binding force of the ECtHR judgments renders the rights of the Convention more effective. Therefore, they are more likely to be considered directly applicable,76 whereas the universal human rights treaties are often not considered as directly applicable.77 VI. Conclusion Although the German courts are the best institution to enforce universal human rights in Germany, they are often very reluctant in applying them. In contrast to this, the rights of the ECHR are widely applied by them. However, the German courts are gradually acknowledging the existence of the human rights treaties in their case law. Even though there are few cases which apply human rights treaties directly, the growing number of cases which use human rights treaties as a means for the interpretation of German law is a step in the right direction. Moreover, the opinions of the Human Rights Committees could be rendered more binding by a provision on the international level similar to Art. 46 (1) ECHR. Although such a development will take a long time, courts could become more aware of the content of universal human rights treaties, e.g. through government declarations or an increasing awareness of the opinions of the Committees. When the courts become more aware of the content of universal human rights treaties, the trend towards the use of universal human rights for the interpretation of German law will be intensified. This awareness and type of enforcement of human rights treaties will allow them to become increasingly effective on the national level. The examples of decisions regarding the CRC show vividly, that when a court wants to apply a provision, it will find legal arguments to support it.

75 BVerfG 14.10.2004, 2 BvR 1481/04, BVerfGE 111, 307 (324). 76 BVerfG 14.10.2004, 2 BvR 1481/04, BVerfGE 111, 307 para 32. 77 See III.1.c.

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Federalism of Fundamental Rights Protection in Germany and the EU – Two Are Better Than One? Jennifer Hölzlwimmer

Abstract At least since the entry into force of the Lisbon Treaty and with it the European Charter of Fundamental Rights becoming legally binding a new chapter of the protection of fundamental rights in Europe has been opened. This article raises the question of the advantages and disadvantages of a ‘new’ concept of federalised fundamental rights protection between the EU Member States and the Union itself by analysing the present legal framework and comparing it with experiences from the German perspective. I. Introduction The protection of fundamental rights and freedoms in Europe is in move.1 Next to the problematic and highly discussed field of an accession of the European Union to the European Convention on Human Rights, the question of the relationship between national fundamental rights protection and fundamental rights protection on the EU level with focus on the European Charter of Fundamental Rights sometimes seems to live a life in shadows.2

1 Cf. already Heiko Sauer, Grundrechtskollisionsrecht für das europäische Mehrebenensystem: Konkurrenzbestimmung – Kollisionsvermeidung – Kohärenzsicherung, in: Matz-Lück/Hong (eds.), Grundrechte und Grundfreiheiten im Mehrebenensystem – Konkurrenzen und Interferenzen, 2012, S. 1 (2); Ferdinand Wollenschläger, Grundrechtsschutz und Unionsbürgerschaft, in: Hatje/Müller-Graff (eds.), Enzyklopädie Europarecht vol. 1, 2014, § 8 para. 93 seqq., 114 seq. 2 See for example and among others the (insofar misleading) title of the publication of Sonia Morano-Foadi/Lucy Vickers, Fundamental Rights in the EU – A Matter for Two Courts, 2015.

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However, this clearly has changed at least since the decision of the European Court of Justice of February 2013 in the case Åkerberg Fransson. In this decision concerning the applicability of the EU fundamental rights of ne bis in idem (Article 50 of the Charter) the Court essentially held that the scope of application of EU fundamental rights is identical to the scope of application of EU law itself. In its own words: ‘The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law (…) (I)f such legislation falls within the scope of European Union law, the Court (…) must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (…) Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.’3

In the case Texdata of October 2013 the Court confirmed and even emphasized this jurisdiction.4 On the other hand, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) in April 2013 took one of the first chances to criticise the Luxembourg Court and its Fransson ruling with its wide interpretation of Article 51 of the European Charter of Fundamental Rights. In a case concerning a counter-terrorism database, the Federal Constitutional Court added a – supposedly superfluous – consideration (obiter dictum) that can be, and widely has been5, understood as some kind of warning to the Court of Justice of the European Union. The press release, also published in English, reads as follows: ‘The constitutional complaint provides no reasons for a preliminary ruling before the European Court of Justice. Clearly, the Counter-Terrorism Database Act and actions that are based on it do not constitute an implementation of Union law according to Article 51 sec. 1 sentence 1 of the Charter of Fundamental Rights of the European Union. The Counter-Terrorism Database Act

3 ECJ, Case C-617/10, ECLI:EU:C:2013:105, para. 19, 21 – Fransson. 4 ECJ, Case C-418/11, ECLI:EU:C:2013:588, para. 71 seqq. – Texdata; but relativized e.g. in Case C-206/13, ECLI:EU:C:2014:126, para. 14 – Siragusa. 5 E.g. Maximilan Steinbeis, Antiterrordatei-Urteil: Fäusteschütteln in Richtung Luxemburg, http://verfassungsblog.de/antiterrordatei-urteil-fausteschutteln-in-richtung -luxemburg/, accessed 7 January 2017.

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pursues nationally determined objectives which can affect the functioning of the legal relationships under EU law merely indirectly. Thus, the European fundamental rights are from the outset not applicable, and the European Court of Justice is not the lawful judge according to Article 101 sec. 1 sentence 2 of the Basic Law (…) The European Court of Justice’s decision in the case Åkerberg Fransson (…) does not change this conclusion. As part of a cooperative relationship, this decision must not be read in a way that would view it as an apparent ultra vires act or as if it endangered the protection and enforcement of the fundamental rights in the member states in a way that questioned the identity of the Basic Law’s constitutional order. The Senate acts on the assumption that the statements in the ECJ’s decision are based on the distinctive features of the law on value-added tax, and express no general view. The Senate’s decision on this issue was unanimous.’6

In conclusion, the Federal Constitutional Court understands the meaning of the ECJ’s decision in the case Åkerberg Fransson to be a very limited one and definitely uses its (even internationally) powerful voice in order to remind the European Court of Justice of its limited competences and its duty to respect the constitutional identity respectively sovereignty of the Member States. But what are the reasons for this reaction? Since the entry into force of the Lisbon Treaty and with it the European Charter of Fundamental Rights becoming binding part of EU primary law, there is more than one level of human rights protection in Europe.7 First, there is the national level with several national constitutions providing fundamental rights guarantees and national constitutional or highest courts to apply and interpret those. Second, there is the European Charter of Fundamental Rights, a written and binding document since December 2009, and the Luxembourg Court, the European Court of Justice (ECJ), as its interpreter. Last, but not least, there is the European Convention on Human Rights as a treaty of International Law with its Court in Strasbourg, the European Court of Human Rights (ECtHR). Whereas the different grounds of protection are clear, the distribution of competences in the field of human rights protection remains something like a battlefield, as the ‘dialogue’ between the Court of Justice and the Federal Constitutional Court of Germany cited above clearly indicates. In particular, constitutional courts with long tradition and consequently powerful voices, such as the

6 Press release available at http://www.bundesverfassungsgericht.de/SharedDocs/ Pressemitteilungen/EN/2013/bvg13-031.html, accessed 7 January 2017. 7 In particular in German legal literature, it is often spoken of a multi-level system (‚Mehrebenensystem‘). For a general definition of this term see Heiko Sauer, Jurisdiktionskonflikte in Mehrebenensystemen, 2008, pp. 77 seqq.

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Federal Constitutional Court of Germany, are frightened of a cutback of competences and European wide unitarization of fundamental rights protection ignoring national identity and sovereignty.8 At this point, the question of fundamental rights federalism arises. Is it possible to develop a ‘quasi-federal’ system of fundamental rights protection in Europe with clear competences and courts respecting and strengthening each other rather than fighting for their own position? To find an answer to this question, this analysis starts with a short description of the term fundamental rights federalism and its meaning in general (II.). Afterwards, the focus is set on the German model of fundamental rights federalism (III.). Inspired by the German example, the concept of fundamental rights federalism will be applied to the EU level and similarities but also divergences based on the specificities of a supranational body sui generis are elaborated (IV.). The conclusion consists of some general remarks on the positive and negative aspects of human rights protection on different levels and some first ideas for the future trying to disentangle the actual ‘jungle’ of human rights protection on EU level (V.). II. Fundamental Rights Federalism Speaking of fundamental rights federalism, it shall be defined as a situation of substantive overlapping of federal and single state fundamental rights guarantees in case of scrutinizing state actions9, which in view of competences is reflected by parallel authorities for interpretation, i.e. constitutional courts. However, the scope of overlapping guarantees is not fixed from the beginning. It rather is determined by special rules and regulations settling the relationship between the different levels of fundamental rights protection and the according courts. In other words, in case more than one level of fundamental rights protection is applicable, it is methodi-

8 Cf. Dieter Grimm, Die Zukunft der Verfassung II, 2012, p. 116; Peter Schiffauer, Der Schutz der Grundrechte im System der Europäischen Unionsgrundordnung, in: Haratsch/Schiffauer (eds.), Grundrechtsschutz in der Europäischen Union, 2007, p. 31 (54). Further Ferdinand Kirchhof, Nationale Grundrechte und Unionsgrundrechte – Die Wiederkehr der Frage eines Anwendungsvorrangs unter anderer Perspektive, NVwZ 2014, 1537 (1539 seq.). 9 Cf. Thorsten Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus, JZ 2013, 801 (806).

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cally a question of human rights competition.10 In these cases, there are at least two ways to solve the conflict: First, a hierarchical solution, i.e. one of the conflicting fundamental rights regimes steps back on grounds of a lex-specialis rule or a clear distribution of competences to the upper level and the need for uniform interpretation and application of the relevant rule on all levels. Or second, both regimes are applicable next to each other and (ideally) intensify the level of fundamental rights protection because state action has to comply at the same time with both regimes and thus, also with the stricter one. This may be called the complemental way of solution. Both ideas are usually modified by special rules for the conflict of laws. In case of the European Charter of Fundamental Rights you may interpret Article 53 of the Charter as such rule, which imposes the need for interpretation of human rights protected by the Charter neither prejudicing nor reducing the significance of the rights guaranteed by the national constitutions of the Member States. On the other hand, there is the general rule of primacy of EU law, which also applies to the guarantees of the Charter as part of the Treaties. III. German Fundamental Rights Federalism 1. Rules for Conflict of Laws Looking at the German example of fundamental rights federalism you will find two provisions aiming to avoid respectively solve potential collisions between federal fundamental rights and those of the separate 16 constitutions of the German Länder. Those are Article 31 and 142 of the German Constitution (also called Basic Law [Grundgesetz]). Article 31 states: ‘Federal law shall take precedence over Land law.’

On the other hand, Article 142 reads: ‘Notwithstanding Article 31, provisions of Land constitutions shall also remain in force insofar as they guarantee basic rights in conformity with Article 1 to 18 of this Basic Law.’

10 Thorsten Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus, JZ 2013, 801 (806).

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In regard to the interpretation of Article 31 Basic Law, it is widely acknowledged now that this provision is solely applicable in cases of conflict of laws with the consequence that sub-federal rules being identical to federal rules remain in force irrespectively of the general primacy of federal law because in such cases there is no conflict of law at all.11 Article 142 Basic Law mainly emphasizes this result in case of constitutional provisions guaranteeing fundamental rights and freedoms and insofar is recognized as lex-specialis to Article 31 Basic Law.12 In summary, these German rules for conflict of laws are quite similar to those shortly mentioned above on European level. However, what are the consequences of these rules for conflict of laws for fundamental rights protection in Germany looking at intensity of the level of protection and powerfulness respectively relevance of the involved courts? 2. Consequences for the Relationship between Federal Fundamental Rights Protection and Fundamental Rights Protection by the German Länder Trying to contour the relationship between the two fundamental rights regimes in Germany, first it must be detected that simply looking at the numbers of claims in front of the relevant courts the main part of fundamental rights issues is discussed and finally decided on in front of the Federal Constitutional Court.13 Some may even spoke of a complete meaningless of the constitutional courts of the Länder.14 But looking at the average amount of proceedings in front of the different constitutional courts of the Länder per year individually, again the numbers differ. Whereas the Con-

11 E.g. Horst Dreier, in: idem (ed.), Grundgesetz-Kommentar, vol. 2, 3rd edition 2015, Article 31 para. 7 seqq., 31 seqq., 40 seq. 12 Horst Dreier, Grundrechtsschutz durch Landesverfassungsgerichte, 2000, p. 17. 13 Cf. the numbers published in the annual report of the Federal Constitutional Court available ar http://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresstatistik en/2016/gb2016/A-I-1.pdf?__blob=publicationFile&v=2, lastly accessed 7 January 2017, in comparison to the numbers published in Wolfgang Heyde, Überblick über die Verfahren vor den Landesverfassungsgerichten mit Tabellen über die Häufigkeit der Verfahren (einschl. Schleswig-Holstein), in: Starck/Stern (eds.), Landesverfassungsgerichtsbarkeit, Vol. II, 1983, p. 1 (3 seqq.). 14 Cf. Claus Dieter Classen, Schwierigkeiten eines harmonischen Miteinanders von nationalem und europäischem Grundrechtsschutz, EuR 2017, 347 (347).

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stitutional Court of Baden-Württemberg usually decides in three cases per year15, others such as the Constitutional Court of Hesse have a usual working load of about 140 proceedings a year16.17 Naturally, there already have been calls for abolishment at least concerning courts with less importance in numbers.18 Additionally, some (even strong) voices in academics accuse the constitutional courts of the Länder to completely follow the case law of the Federal Constitutional Court in order to interpret their own procedural and fundamental rights provisions.19 Hence, one may conclude that fundamental rights protection in Germany is thoroughly determined by unitarization20 instead of a double-layer system leading to a higher level of human rights protection in summary. On the other hand, it is at least questionable whether fewer proceedings necessarily are a sign of less importance within the federal system. In contrary, it can be argued with Ferdinand Kirchhof, nowadays Vice President of the Federal Constitutional Court of Germany, that ‘high numbers of claims rather testify dissipation of the legal remedy system than attest to convincing task fulfilment’.21 Looking at the diverse jurisprudence of the

15 Ferdinand Kirchhof, Die Rolle der Landesverfassungsgerichte im deutschen Staat, VBl. BW 2003, 137 (138); for an overview cf. Christian Pestalozza, Verfassungsprozessrecht, 1991, § 22 para. 4. 16 Paul Tiedemann, Landesverfassung und Bundesrecht, DÖV 1999, 200 (204). 17 For an overview between the years 1955–1982 cf. Wolfgang Heyde, Überblick über die Verfahren vor den Landesverfassungsgerichten mit Tabellen über die Häufigkeit der Verfahren (einschl. Schleswig-Holstein), in: Starck/Stern (eds.), Landesverfassungsgerichtsbarkeit, Vol. II, 1983, p. 1 (3 seqq.). For actual numbers of the Bavarian Constitutional Court cf. Josef Franz Lindner, Die Rechtsprechung des Bayerischen Verfassungsgerichtshofs, BayVBl. 2018, 1 (1). 18 E.g. regarding the Constitutional Court of Baden-Württemberg Otto Bachhof, Der Staatsgerichtshof für das Land Baden-Württemberg, in: idem (ed.), Tübinger Festschrift für Eduard Kern, 1968, p. 1 (17). 19 Christian Pestalozza, Verfassungsprozessrecht, 1991, § 22 para. 4; Philip Kunig, Verfassungsrecht und einfaches Recht – Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit, VVDStRL 61, 30 (42 seqq.); Wolfgang Graf Vitzthum, Die Bedeutung gliedstaatlichen Verfassungsrechts in der Gegenwart, VVDStRL 46, 7 (35 seqq.). 20 So Claus Dieter Classen, Schwierigkeiten eines harmonischen Miteinanders von nationalem und europäischem Grundrechtsschutz, EuR 2017, 347 (347); Klaus F. Gärditz, Grundrechte im Rahmen der Kompetenzordnung, HSTR IX, 3rd edition 2011, § 189 Rn. 38 ff. 21 Ferdinand Kirchhof, Die Rolle der Landesverfassungsgerichte im deutschen Staat, VBl. BW 2003, 137 (138) (free english translation by the author).

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constitutional courts of the Länder, one even recognizes that they fulfil multiple and fundamental functions in an integrative way (within the subfederal and in view of the federal body) and in a protective way, i.e. the preservation of the federal structure by defending their own sovereignty.22 There are also examples in several areas where the protection of the individual against state action even goes further according to the constitutional fundamental rights guarantees of the Länder than on federal level. For example, Articles 11 seqq. of the Constitution of Baden-Württemberg grant human rights connected with education of the youth, a topic left out by the existing fundamental rights catalogue on federal level. But irrespectively of the discussions about the usefulness of constitutional courts on sub-federal level as such and the possible tendency to unitarised application and interpretation of fundamental rights guarantees in general, it is still unsure which consequences follow from the implementation of Article 31 and 142 Basic Law for the protection of fundamental rights within the Federal Republic of Germany. Whereas it is clear that the Federal Constitutional Court and the constitutional courts of the Länder all assure and guarantee compatibility with (only) their relevant catalogue of fundamental rights and freedoms next to each other (parallel protection),23 the distribution of competences between these courts is still not completely defined. Contouring the relevant spheres, it must be differentiated first between the subject matter of a legal action, i.e. whether it is a claim against an action of a federal or of a sub-federal authority. Further, it is decisive whether the relevant sub-federal fundamental right is identical, more protective or less protective than the parallel guarantee on federal level. Naturally, the latter differentiation finds its limits in multi-polar situations, i.e. where more rights for one individual go necessarily together with less rights for another. In regard to the constitutionality of federal actions it is already confirmed since the decision of the Federal Constitutional Court in 1952 in the case Bezirksschornsteinfeger that if there is a conflict of laws because

22 Cf. Ferdinand Kirchhof (n. 21), 137 (138 seq.). 23 BVerfGE 36, 342 (357, 360 seq.); 41, 88 (118 seq.); 42, 312 (325); 60, 175 (208); 96, 345 (363, 368); Wolfgang Graf Vitzthum, Die Bedeutung gliedstaatlichen Verfassungsrechts in der Gegenwart, VVDStRL 46, 7 (12); Jörg Menzel, Landesverfassungsrecht, 2002, p. 213 seqq.; Ferdinand Kirchhof (n. 21), 137 (142); Horst Dreier, Grundrechtsschutz durch Landesverfassungsgerichte, 2000, p. 16 seq.

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of a federal (non-constitutional) law is inconsistent with a fundamental rights guarantee of a Land due to the fact that this guarantee provides more rights than the corresponding fundamental right on federal level, the federal law still succeeds according to Article 31 Basic Law.24 But looking at the second category, i.e. actions of sub-federal authorities, the situation becomes more and more complicated. What can be said for sure is that whenever fundamental rights on state level stand back in terms of level on protection of the individual behind those on federal level, the federal law succeeds at least in the end and consequently the Federal Constitutional Court has the final say, even on the constitutionality of an action of a Land itself. For example, Article 111 a section 2 of the Bavarian Constitution stipulates that providers of broadcasting agencies must be public bodies or at least governed by public law. However, the Federal Constitutional Court deciding on this practice allowed the Bavarian Constitutional Court to keep Article 111 a section 2 and its interpretation but on the other hand reminded the Court of its obligation according to Article 5 section 1 sentence 2 of German Basic Law and its provision of private freedom of the press and freedom of reporting by means of broadcasts and films.25 It is widely acknowledged that all private persons as well as companies are enabled to claim this freedom. Hence and in compliance with the jurisdiction of the Federal Constitutional Court of Germany, the Bavarian exclusion of private broadcast companies from broadcasting service cannot be justified in view of federal fundamental rights also binding the constitutional courts of the Länder according to Article 1 section 3 Basic Law. Insofar the application of the federal fundamental rights catalogue in this case has led to private persons’ access to the broadcasting branch in Bavaria and therefore to a unification – or unitarisation – of broadcasting law within the German states. In regard to actions of the Länder applying federal law however, the situation becomes even more complicated and still is highly discussed.26 Of course, in cases of sub-federal laws solely supplementing federal laws the scope of discretion of the Land is identical to the scope of application of the constitution of the relevant Land. The Federal Constitutional Court at

24 BVerfGE 1, 264 (281); 96, 345 (365 seq.). 25 BVerfGE 97, 298 (312 seqq.). 26 In more detail Jochen Rozek, Landesverfassungsgerichtsbarkeit, Landesgrundrechte und die Anwendung von Bundesrecht, AöR 119 (1994), 451; Henning von Olshausen, Landesverfassungsbeschwerde und Bundesrecht, 1980, pp. 124 seqq.

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least has further acknowledged the competence of the constitutional courts of the Länder to control the conformity of the application of federal procedural laws by sub-federal authorities with the relevant fundamental rights guarantee of the Land itself if it is identical in view of its material content with a fundamental right on federal level.27 However, the limitation to federal procedural law is not convincing at all28 and possibly simply based on the finite background of the case decided on. The Bavarian Constitutional Court and the Constitutional Court of the Land Hesse, both courts with long traditions, answer the question of the standard for control of sub-federal actions implementing federal laws diversely. Former restricts its judicial review in such cases to procedural fundamental rights of the Bavarian Constitution if granted in the same matter on federal level. In contrast, material fundamental rights of the Bavarian Constitution are only applied if the relevant authority of the Land has been acting without any objective reason, i.e. arbitrarily and as a consequence completely outside the legal system.29 In contrast, the Constitutional Court of Hesse generally neglects the application of fundamental rights and freedoms of the Constitution of Hesse if state actions rely on federal laws in view of Article 31 Basic Law but with an exception regarding arbitrary actions, i.e. the state authority acting outside of the scope of the legal system and insofar without applying federal laws at all.30 Solely the Constitutional Court of Berlin extends its judicial review to all actions on sub-federal level concerning their conformity with the fundamental rights guarantees of the Constitution of Berlin even if the relevant action implements federal law.31 Diverse opinions also exist in academics, starting from a general application of subfederal fundamental rights to sub-federal actions implementing federal laws32 to a limited scope of application solely in cases of discretion of the implementing authority33.

27 BVerfGE 96, 345 (363). 28 Also Henning von Olshausen (n. 26), p. 99, 144; Paul Tiedemann (n. 16), DÖV 1999, 200. 29 E.g. BavVerfGH, VerfGHE 66, 94/96 seqq.; VerfGH, BayVBl. 2016, 49 para. 31. For new developments cf. BVerfG (K), 31.03.2016 – 2 BvR 1576/13, BVerfG (K), 02.05.2016 – 2 BvR 1947/15 and VerfGH, BayVBl. 2017, 407. 30 Cf. HessStGH ESVGH 22, 13 (17); StAnz 1989, 1661 (1663). 31 BerlVerfGH, Decision of 23.12.1992 – VerfGH 38/92, NJW 1993, 513; Decision of 12.1.1993 – VerfGH 55/92, NJW 1993, 515. 32 Henning von Olshausen (n. 26), p. 89 seqq. 33 Jörg Menzel (n. 23), p. 216 seqq.

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It becomes clear that in the Federal Republic of Germany there is also something one may call the ‘implementing-dilemma’, i.e. the problem of assigning actions of sub-federal authorities implementing federal laws to the federal or the sub-federal level with the correlating instance of judicial and constitutional control in view of fundamental rights protection. This unsureness in connection with the cited amount of criticism regarding the existence of constitutional courts on sub-federal level as such – justified or not – gives enough reasons to doubt whether regulations such as Article 31 and 142 of the German Basic Law are sufficient as rules of conflict of laws to solve or at least untangle a double-layer system of human rights protection satisfactorily. IV. EU Fundamental Rights Federalism Transferring the system of fundamental rights federalism now to the EU level, first it has to be ensured that the strong distinctions to the German federal system are kept in mind. The European Union is not a federal state but a supranational body (in words of the German Federal Constitutional Court: ‘Staatenverbund’34) with (at the time of writing) 28 Member States and hence 28 (possible) constitutions. Until today, there are substantial differences between these Member States in particular in fundamental rights protection not only in a procedural but also in a material matter. For example, the legitimacy of extensive video control is a subject diversely discussed within the Member States in respect to the right to data protection. Freedom of religion is another subject, which is highly accentuated for example in the United Kingdom and Germany but already attached to serious restrictions such as the burqa ban in France35.

34 BVerfGE 89, 155 (190) – Maastricht. 35 Cf. Conseil constitutionnel, Decision 2010-613 DC of 7 October 2010. Critical in this regard for example Aurore Gaillet, La loi interdisant la dissimulation du visage dans l’espace public et les limites du contrôle partiqué par le Conseil constitutionnel, in: Société, droit et religion 2011, p. 47, 58 seqq. National bans on fullface veils in all public places have also been introduced in Austria and Belgium, while partial bans in special places exist in the Netherland, Italy and Spain. Recently, also Bavaria as first country in Germany introduced a burqa ban, cf. Gesetz über Verbote der Gesichtsverhüllung in Bayern of 12 July 2017 (in force since 1 August 2017), GVBl. 2017, 362.

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Keeping that in mind, it shall be elaborated in a first step whether the status quo of rules for conflict of laws on EU level is targeted to these specifics (1.) and second, which consequences might follow from the application of these regulations regarding the level and intensity of fundamental rights protection within the European Union and the powerfulness respectively relevance of the involved courts (2.). 1. Rules for Conflict of Laws – The status quo Looking at the status quo of already existing rules for conflict of laws on EU level, one can find diverse starting points for elaboration. In view of parallels with the German federal system, three of them shall be further elaborated. First, the general rule of primacy of EU law36 must be mentioned. According to settled case-law, this rule is also applicable to the national constitutions with their relevant catalogue of fundamental rights guarantees and freedoms.37 In the beginning, this result has not been indisputable because of the lack of an appropriate fundamental rights catalogue on EU level. Therefore, the Federal Constitutional Court of Germany reserved its right to control Union acts in view of their conformity with fundamental rights guarantees of the German Constitution.38 Only after establishing fundamental rights as general principles of EU law in the jurisdiction of the European Court of Justice, the Federal Constitutional Court of Germany changed its jurisdiction and renounced its reservation in its famous case Solange II of 22 October 1986. Since then the Federal Constitutional Court does not exercise its judicial control as long as a standard of fundamental rights protection comparable at essence to the indispensable requirements of the Basic Law is secured at EU level.39 Still, the Federal Constitutional Court acknowledges that this is the case.40

36 First developed in ECJ, Case 6/64, [1964] ECR 587, 594 – Costa/E.N.E.L. 37 Cf. ECJ, Case C-11/70, [1970] ECR 1125, para. 3 – Internationale Handelsgesellschaft. 38 BVerfGE 37, 271 (285) – Solange I. 39 BVerfGE 73, 339 (377) – Solange II. 40 Cf. at last (even if not explicitly) BVerfGE, Decision of 15 December 2015, 2 BvR 2735/14, para. 36 seqq. – Identitätskontrolle.

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Next to the primacy of EU law, there is Article 53 of the Charter of Fundamental Rights stipulating: ‘Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.’

Generally spoken, this provision imposes the need for interpretation of fundamental rights protected by the Charter neither prejudicing nor reducing the significance of the rights guaranteed by the national constitutions of the Member States. But the specific interpretations of the consequences of this Article differ. Some even speak of an abolishment of the primacy of EU law41, others interpret Article 53 as a most-favoured clause42, i.e. stipulating the application of the most favourable fundamental right in case. Third, there is Article 51 section 1 sentence 1 of the Charter and its highly-discussed definition of the general scope of application of the Charter: ‘The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.’

Critical voices argue that this provision only determines the scope of application of the Charter but not the relationship between national and Union fundamental rights guarantees43 and insofar does not constitute a useful rule for conflict of laws. Various and sometimes inconsistent decisions of the European Court of Justice on this subject at least verify the problematic application of this provision in casu.

41 E.g. Martin Seidel, Pro futuro: Kraft Gemeinschaftsrechts Vorrang des höheren einzelstaatlichen Grundrechtsschutzes?, EuZW 2003, 97; Matthias Ruffert, Schlüsselfragen der Europäischen Verfassung der Zukunft, EuR 2004, 165 (174). 42 Martin Borowsky, in: Meyer (ed.), Charta der Grundrechte der Europäischen Union, 3rd edition 2011, Articel 53 para. 14; Christian Calliess, Europäische Gesetzgebung und nationale Grundrechte – Divergenzen in der aktuellen Rechtsprechung von EuGH und BVerfG?, JZ 2009, 113 (120); Martin Kober, Der Grundrechtsschutz in der Europäischen Union, 2009, p. 255. 43 Kober, Der Grundrechtsschutz in der Europäischen Union, 2009, p. 252 fn. 1035.

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2. Consequences of the status quo of Rules for Conflict of Laws for the Relationship between National and EU Fundamental Rights Protection Elaborating consequences of the rules for conflict of laws mentioned above for the relationship between national and EU fundamental rights protection, it must be noted first and contrary to the German system that diverse opinions already exist regarding the question of a combined or strictly divided parallel application of the two fundamental rights regimes. Whereas the European Court of Justice assumes at least a limited scope of double protection by both national and EU fundamental rights regimes44, the Federal Constitutional Court of Germany still follows its thesis of separation (Trennungsthese)45. The picture becomes even more puzzling looking at the consequences for the system of legal remedies for individuals claiming their fundamental rights in front of more than one court. One example, given by Thorsten Kingreen46 and relating to the so-called case group of ‘Member states’ actions implementing Union law’47, illustrates this finding quite well and insofar shall be cited at this point: According to Article 10 of EC-Regulation 178/2002 the responsible authorities must inform the public in an appropriate way if there is suspicion that food or animal feed is a risk for the health of human beings or animals. In Germany this provision was implemented in § 40 section 1 sentence 2 Nr. 3 LFGB (Lebens- und Futtermittelgesetzbuch) but this paragraph also stipulates that the public will be informed, if the meat is ‘only’ nauseous but not harmful to health.

44 ECJ, C-617/10, ECLI:EU:C:2013:280, para. 29 – Fransson; Daniel Thym, Vereinigt die Grundrechte!, JZ 2015, 53 (55); idem, Separation versus Fusion – or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice, EuConst 9 (2013), 391 (401 seqq.). 45 Cf. Daniel Thym, Die Reichweite der EU-Grundrechte-Charta – Zu viel Grundrechtsschutz?, NVwZ 2013, 889 (891 seqq.); idem, Vereinigt die Grundrechte!, JZ 2015, 53 (54 seq.). 46 Thorsten Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus, JZ 2013, 801 (806 seq.). 47 For an overview of all relevant categories cf. Ferdinand Wollenschläger, Grundrechtsschutz und Unionsbürgerschaft, in: Enzyklopädie Europarecht vol. 1, 2014, § 8 para. 17 seqq.

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In case the responsible German authority now gives out a warning to the public that meat produced by a specific meat company is nauseous, meaning rotten meat, the meat company might first raise a claim against Article 10 of EC-Regulation 178/2002 and the obligation to publish suspicions itself by claiming an infringement of its fundamental rights according to the Charter of the European Union in front of the relevant national German court. In consequence, the German court may initiate a preliminary ruling procedure because it is a question of interpretation of European Union Law. Hence, the European Court of Justice rules on the validity of Article 10 of EC-Regulation 178/2002 and may conclude that this provision does not comply with the Charter of the European Union. In this case, the meat company has already won. Otherwise, if the ruling is pro conformity with the Charter, there is the question whether the German courts will get further and double check Article 10 of EC-Regulation 178/2002 on its conformity with the fundamental rights guarantees provided by the German Constitution. At this point, the European Court of Justice in its Melloni ruling, issued on the same day than the Fransson ruling, clearly made its point that because of reasons of uniform application of Union Law the general rule of primacy of EU Law goes ahead Article 53 of the Charter so that national fundamental rights are not applicable. On the other hand, it would have also been possible that the meat company would have decided to take action against § 40 section 1 sentence 2 Nr. 3 LFGB, i.e. the German provision and not the European one. In this case, the European Court of Justice, especially now after its decision in the Fransson case, mentioned at the beginning, would also apply the Charter of the European Union on this question, irrespectively of the fact that Germany in case of § 40 LFGB used its discretionary power implementing EC-Regulation 178/2002 and went further than the European provision. However, the national court is not obliged to exclude the application of national law, e.g. German fundamental rights. If we look at the possible results now: If there is conformity with the Charter according to the Court of Justice but not with German Basic Law, § 40 LFGB has to be abolished, the meat company has won. If there is no conformity with the Charter, but conformity with German Basic Law, § 40 LFGB also has to be abolished, the meat company has won. We see: Whereas the affected food company in such a case must only win in front of one court (Luxembourg or Karlsruhe), the responsible public authority representing the common interest in an effective health and consumer protection must win in front of both

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courts. This example shows that – at least in this case – double human rights protection can also be ‘a bias against common interests’48. The example further visualizes that the general aim of the Member States at the time of introduction of the Charter to prevent a ‘spill-over’ of the fundamental rights of the Charter to the law of the Member States by including specific rules for conflict of laws, such as Article 51 or 53 of the Charter,49 has not been achieved. In fact, the system of fundamental rights protection in Europe and in particular, the distribution of competences between the ECJ and the constitutional courts of the Member States, is even more confusing than before and hence, endangers the principle of legal certainty and the protection of fundamental rights and freedoms of the individual as such. V. The Future of Fundamental Rights Federalism within the EU and its Member States The doubling of fundamental rights protection on two (respectively three) different levels definitely opens the possibility of better fundamental rights protection in general. As is the saying: Two are better than one or even more precisely in German words: Doppelt hält besser. Yet, at the same time there is the danger of unitarisation50 and even the possibility of a race-to-the-bottom51 as well as loss of legal certainty. Therefore, concrete and balanced rules for conflict of laws are necessary and have to be followed-up by proceedings to support and guarantee a fruitful dialogue about human rights issues between the affected courts.

48 Thorsten Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus, JZ 2013, 801 (806). 49 Peter Schiffauer, Der Schutz der Grundrechte im System der Europäischen Unionsgrundordnung, in: Haratsch/Schiffauer (eds.), Grundrechtsschutz in der Europäischen Union, 2007, p. 31 (54). 50 Cf. Dieter Grimm, Die Zukunft der Verfassung II, 2012, p. 116; Peter Schiffauer (n. 49), p. 31 (54). Further Ferdinand Kirchhof, Nationale Grundrechte und Unionsgrundrechte – Die Wiederkehr der Frage eines Anwendungsvorrangs unter anderer Perspektive, NVwZ 2014, 1537 (1539 seq.). 51 Peter M. Huber, Auslegung und Anwendung der Charta der Grundrechte, NJW 2011, 2385 (2387). Also Johannes Masing, Einheit und Vielfalt des Europäischen Grundrechtsschutzes, JZ 2015, 477 (487).

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In view of legal certainty, it would be appreciated that the ECJ together with the constitutional/highest courts of the Member States will find a way of transparent cooperation with separated but complementing competences, so that the European citizen as subject of each fundamental rights case is able to claim her or his rights without feeling that claiming their rights is like playing a lottery: You only have to find the right court in order to get the ruling you need. Further, it has to be remembered that apart from the ongoing struggle for power and sovereignty between the courts the aim of fundamental rights protection and hence of every constitutional court is in first line to protect human beings. So, in conclusion, why not protect the human being by opening the easiest and most effective way to claim her or his fundamental right in front of the courts of her or his Member State, hence in closest familiarity as possible with the actual subject of fundamental rights protection.52 This does not neglect the need for fundamental rights protection on EU level, i.e. in front of the ECJ. However and again, also in the field of fundamental rights protection the European Union is and should stay ‘uniformed in diversity’.53 Hence, there should definitely be no quietness in the constitutional/highest courts of the Member States (or their equivalents) on fundamental rights matters. One possibility to secure dialogue and cooperation is already implemented in EU primary law, i.e. the possibility of the national courts to call for a preliminary ruling of the ECJ according to Article 267 TFEU.54 It opens the door for a (formally guided) communication between the courts, but of course only if taken seriously and in the right manner. The highest national courts are nowadays at least starting to recognize and effectively use this door-opener.55 However, it still has to be seen whether this possibility of (one-way) communication is sufficient. At least it seems to be disputable whether an additional or at least more intensive way for dialogue is needed. 52 Also Ferdinand Kirchhof (n. 26), VBl. BW 2003, 137 (139). 53 Cf. Thorsten Kingreen, Die Grundrechte des Grundgesetzes im europäischen Grundrechtsföderalismus, JZ 2013, 801 (810); idem, Grundrechtsverbund oder Grundrechtsunion?, EuR 2010, 338 (363). 54 Already stressing the model charakter of the preliminary ruling procedure for procedurally strenghtening cooperational relationships Heiko Sauer (n. 4), p. 544. 55 Cf. BVerfGE 134, 366 – OMT-Beschluss; Conseil Constitutionnel, Decision 2013/314P QPC and 2013–314 QPC; Tribunal Constitucional Espanol, ATC 86/2011 and 26/2014; ItVGH, Decision n. 103/2008.

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On the other hand, it needs to be emphasized that establishing a clear and stable system of fundamental rights federalism in the European Union not only is attached with problems and conflicts of competences etc. Vice versa, it is maybe even in first instance a chance for the Union itself. Still, the potential of fundamental rights federalism essentially depends on the general cooperativeness and openness of the courts engaged. This thesis shall be stressed with one last example, once more first given by Thorsten Kingreen56, to highlight the advantage of fundamental rights federalism if it goes together with a dialogue between all affected states and an exchange of experiences and knowledge from the history. In 1989 after the reunification, the German Commission for a Common Constitution discussed about how to change the German Basic Law in order to unify the Eastern and the Western part of Germany under one constitution with a federal catalogue of fundamental rights and freedoms. In the end, it decided to cut back two fundamental rights guarantees (Article 13 and 16 section 2 Basic Law) and not to pick up the impulses of the more novel constitutions of the Eastern Länder (also called Neue Bundesländer) with their novel fundamental rights guarantees. For example, Article 26 of the Constitution of Brandenburg acknowledges next to the protection of Marriage and Family life the protection of other permanent domestic partnerships. If this proposal had been picked up in 1989, the Federal Constitutional Court in 2013 would not have had to use the, one may say, quite acrobatic way to establish equal treatment of civil partnerships or unions, without doubts quite overdue from a sociopolitical view. Completely different in the United States: During the 1970 s and the time of so-called New Judicial Federalism the state courts took the chance to raise the level of fundamental rights protection above the standard of the Bill of Rights. One main topic at this time was the protection of homosexuals. It was the state courts, which caused the Supreme Court to change its jurisdiction regarding the compliance of the criminal liability of homosexual activity with the US Constitution. In addition, in the last years it was the state courts again which sent the impulses to the Supreme Court for its decision of 28 June 2013 in the cases United States v. Windsor and Hollingsworth v. Perry ruling pro equal treatment of homosexual partnerships and married couples.57 56 Thorsten Kingreen (n. 53), JZ 2013, 801 (811). 57 Hollingsworth v. Perry, 133 S.Ct. 786 (No. 12-144) (U.S. Dec. 7, 2012); United States v. Windsor, 133 S.Ct. 786 (No. 12-307) (U.S. Dec. 7, 2012).

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To sum it up: In order to use the potential of European diversity the constitutional/highest courts of the Member States of the European Union are now requested to take their chance and use their possibilities especially in procedural law to influence the jurisdiction of the ECJ particular in fundamental rights issues wherever it is possible.58 In addition, the EU legislator should at least start to discuss alternatives of rules for conflict of laws to define the relevant scope of application of the fundamental rights regime as well as possibilities to strengthen the dialogue about fundamental rights issues between the courts by implementing procedural or/and material amendments to the Treaties. The history of fundamental rights protection in the European Member States might be worth the effort!

58 Also Claus Dieter Classen, Schwierigkeiten eines harmonischen Miteinanders von nationalem und europäischem Grundrechtsschutz, EuR 2017, 347 (361 f.).

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The Future of the Bosphorus-Presumption after the EU’s Accession to the European Convention on Human Rights Daniel Engel

Abstract This article contributes to the question whether the equivalent protection formula which the European Court of Human Rights has established in its Bosphorus judgment will continue to apply once the European Union has acceded to the European Convention on Human Rights. For that purpose, the article analyzes the European Court of Human Rights’ development of the equivalent protection formula in decisions subsequent to Bosphorus in order to determine that the rationale of the formula as well as the principle of equality among the member states to the Convention and the very purpose of the EU accession strike against extending the formula to the European Union. Furthermore, the article discusses the continuance of the formula’s application for the EU member states and it is submitted that even if the Bosphorus scenario could come up notwithstanding the accession, the formula as it now stands ceases to apply to EU member states. Lastly, the article introduces the margin of appreciation doctrine of the European Court of Human Rights as an alternative solution to deal with the specifics of the EU once it has acceded to the Convention.

I. Introduction The accession of the European Union (“EU”) to the European Convention on Human Rights (the “Convention”) has often been referred to as a never ending story.1 After the Court of Justice of the European Union (“ECJ”)

1 Sebastian Winkler, Der Beitritt der Europäischen Gemeinschaften zur Europäischen Menschenrechtskonvention (Nomos, 2000) 19; Sabine Leutheusser-Schnarrenberger, ‘Der Beitritt der EU zur EMRK: Eine schier unendliche Geschichte’ in Christine Hohmann-Dennhardt, Peter Masuch and Mark Villiger (eds), Grundrechte und Solidarität. Durchsetzung und Verfahren. Festschrift für Renate Jaeger (N.P. Engel, 2011) 135; Hans-Joachim Glaesner, ‘Eine unendliche Geschichte‘ in Ole Due, Marcus Lutter and Jürgen Schwarze (eds), Festschrift für Ulrich Everling (Nomos, 1995) 327; Gregor Heißl, ‘Happy End einer unendlichen Geschichte? Der

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held in its Opinion 2/94 that no legal basis for accession existed in the EU Treaties in force at that time,2 it took the EU member states thirteen years to follow the ECJ’s call and create an obligation for the EU to accede to the Convention in Art. 6(2) of the Lisbon Treaty.3 Briefly after the Lisbon Treaty entered into force, the European Commission started negotiations with the Council of Europe on the EU accession and a breakthrough was finally reached when a Draft Agreement on the Accession was announced in April 2013 (the “Draft Agreement”).4 The ECJ’s Opinion 2/13 stated that the Draft Agreement was incompatible with the autonomy of the European legal order and, thus, with EU primary law, has again stopped the accession process.5 Given the language of the opinion and the high hurdles the ECJ has set up, it is hard to imagine that the negotiating parties will be able to reach an agreement over a renewed draft soon. Nevertheless, the obligation to accede contained in Art. 6(2) of the Lisbon Treaty remains binding and forces the responsible EU organs to continue to try. Further, it is reported that the negotiations currently continue behind closed doors. This article will focus on a topic which has been left out of the accession negotiations and which will come up again notwithstanding the details of any accession agreement: Is there a future for the Bosphoruspresumption once the EU has acceded to the Convention?

2 3 4

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Beitritt der EU zur EMRK und seine Auswirkungen auf Österreich‘ in Michael Holoubek, Andrea Martin and Stephan Schwarzer (eds), Die Zukunft der Verfassung – Die Verfassung der Zukunft? Festschrift für Karl Korinek (Springer, 2010) 129; Tobias Lock, ‘End of an Epic? The Draft Agreement on the EU’s accession to the ECHR’ (2012) 31 Yearbook of European Law 162. Opinion 2/94 [1996], ECR I-1759. Art. 6(2) of the TEU reads: ‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.’. Final report to the CDDH on the Fifth Negotiation Meeting between the CDDH ad hoc Negotiation Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Doc. 47+1(2013)008 of 5 April 2013, revised version of 10 June 2013, Doc. 47+1(2013)008rev 2, accessed 04 January 2015. Opinion 2/13 [2014], ECLI:EU:C:2014:2454.

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II. The Bosphorus-Presumption In order to answer that significant question surrounding an EU accession it is first necessary to review the European Court of Human Rights’ development of the presumption and its scope and content. As its name indicates, the presumption is generally associated with the judgment of the European Court of Human Rights (“ECtHR”) in Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland.6 It is submitted, however, that the ECtHR in its subsequent case law expanded the underlying equivalent protection formula to a consistent approach to deal with state responsibility for acts of international organizations in general, independent of the question of which international organization is concerned and whether or not the ECtHR is confronted with an implementing act by the respondent member state.7 A. The Development of the Equivalent Protection Formula in Bosphorus The origins of the equivalent protection formula are usually8 traced to the decision of the ECtHR’s Grand Chamber in Bosphorus, which concerned Ireland’s implementation of a binding EU regulation leading to the impounding of the applicants’ aircraft. Notwithstanding its finding that the Irish implementing act brought the applicant under Irish jurisdiction,9 the ECtHR found Ireland not to be in violation of Art. 1 of Protocol No. 1 but

6 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland, ECHR 2005VI 107. From here on cited as: “Bosphorus ECHR 2005-VI 107”. 7 Tobias Lock, ‘Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention und Human Rights’ (2010) 10 Human Rights Law Review 529, 538; Cornelia Janik, ‘Die EMRK und internationale Organisationen – Ausdehnung und Restriktion der equivalent protection-Formel in der neuen Rechtsprechung des EGMR’ (2010) ZaöRV 70 (2010), 127, 191ff; Christoph Grabenwarter, in Christoph Grabenwarter (ed), European Convention on Human Rights. Commentary (Oxford Hart Publishing, 2014), Art 1 para 8. 8 It has to be noted that the first mentioning of the equivalent protection formula occurred in M. & Co. v Germany App no 13258/87 (1990) Yearbook on the European Convention on Human Rights 46, 52. However, in that decision the Court did not lay out its rationale and scope of the approach as detailed as in Bosphorus. 9 Bosphorus ECHR 2005-VI 107, para 137.

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held that it was justified by the legitimate aim of complying with conflicting international obligations under EU law.10 In the course of its analysis, the ECtHR addressed the dilemma Ireland faced by pointing out its interest in complying with EU obligations and “the growing importance of international cooperation”11 on the one hand and the maintenance of states’ responsibility under the Convention for acts under their respective jurisdiction on the other hand, which was necessary to prevent member states from nullifying the Convention protection regime by simply transferring powers to an international organization.12 The proper approach to be taken in order to reconcile these concerns lies with the two-pronged equivalent protection test, which the ECtHR spelled out as follows: “State action taken in compliance with such legal obligations is justified as long as the relevant organi[z]ation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides [...].”13

If the respective international organization meets this test, member states are presumed to act in accordance with the Convention when implementing obligations stemming from their membership in the organization.14 Having determined that the EU provided equivalent protection, the ECtHR concluded that Ireland enjoyed the presumption that it had acted in accordance with the Convention when implementing the EU regulations and that it had not violated Art. 1 of Protocol No. 1.15 Bosphorus thereby focused on the dilemma a member state faces when it is obliged to implement international obligations imposed by an international organization which potentially conflict with the Convention. The ECtHR’s starting point for the development of the equivalent protection formula lies in reconciling these obligations. For the ECtHR, the fact that the international organization is not bound by the Convention and the absence of the individual’s opportunity to challenge the relevant act thereunder has to be accounted for at the level of the international organization. If

10 11 12 13 14 15

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Ibid [149ff.]. Ibid [150]. Ibid [153]. Ibid [155]. Ibid [156]. Ibid [167].

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that is not the case, the ECtHR will hold the implementing state liable notwithstanding its international obligation. Thereby, the ECtHR balances the conflicting interests of the implementing state and the character of the international organization as a separate legal entity. Consequently, after Bosphorus, it was safe to assume that if member states implemented obligations arising out of their membership in an international organization which itself provides equivalent protection, they were generally exempted from liability under the Convention. Thus, in later decisions where the implementation of EU obligations was concerned, individual complaints were regularly found to be inadmissible ratione materiae given that any interference was justified by the legitimate aim of acting in accordance with international obligations.16 B. The Formula’s Extension beyond the Bosphorus Scenario Judgments rendered by the ECtHR subsequent to Bosphorus clearly show that the ECtHR not only considers the equivalent protection formula as a privilege for member states in the scenario of indirect execution, i.e. where an implementing act by member state authorities exists, but also applies the formula to cases of direct execution by organs deemed attributable to the international organization itself. Furthermore, these judgments show that the ECtHR not only applies the equivalent protection to the EU but more generally to international organizations which, as such, are not party to the Convention. As a starting point, it is important to note that the scenario of direct execution differs from the Bosphorus scenario from the outset since absent an implementing act by the member state, there is no activity which triggers jurisdiction under Art. 1 of the Convention in the first place. As the ECtHR held in Behrami17, individual complaints which are directed against acts attributable to an international organization are dismissed ratione per16 Coopérative des Agriculteurs de Mayenne und Coopérative Laitière Maine-Anjou v France, ECHR 2006-XV 195; La Société Etablissements Biret et Cie S.A. et la Société Biret International c 15 Etats Membres de l’Union Européenne App no 13762/04 (ECHR, 09 December 2008) para 2. 17 Agim Behrami and Bekir Behrami v France App no 71412/01 and Ruzhdi Saramati v France, Germany and Norway App no 78166/01 (ECHR, 02 May 2007). From here on cited as: “Behrami App no 71412/001 and Saramati App no 78166/01 (ECHR, 02 May 2007)”.

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sonae.18 In its analysis, the Grand Chamber distinguished the factual scenario underlying Behrami as compared to Bosphorus by pointing out that the acts and omissions complained of were not attributable to the respondent states “by virtue of a decision of their authorities” but solely to the United Nations (“U.N.”).19 In subsequent decisions, however, the ECtHR linked the equivalent protection formula also to the scenario of direct execution. The first judgment pointing in that direction was the ECtHR’s decision in Boivin20, in which the applicant (an employee of Eurocontrol) initiated proceedings before the International Labour Organization’s Administrative Tribunal. In dealing with the issue of admissibility ratione personae, the ECtHR pointed out that this question had to be answered in the light of the principles governing state responsibility for acts of international organizations as laid down in the judgments rendered in Bosphorus and Behrami.21 For that purpose, the ECtHR clarified that Bosphorus concerned the implementation of obligations under EU law by Irish authorities which was sufficient to meet the requirement of exercising jurisdiction in accordance with Art. 1 of the Convention on the part of Ireland.22 Behrami, however, differed from Bosphorus due to the direct attribution to the U.N. of the acts and omissions complained of.23 Against this background, the ECtHR held that the Boivin case was governed by Behrami, given that the respondent states were neither directly nor indirectly involved and, thus, the applicant could not be considered under the jurisdiction of the member states as far as the decision of the Tribunal was concerned.24 What is important to note, however, is that the ECtHR emphasized that the applicant further failed to allege that Eurocontrol was not affording a standard of protection equivalent to that of the Convention system and that, consequently, there was no need to examine whether the Bosphorus-presumption was rebutted.25 This obiter dictum suggests that a lack of equivalent protection on the part of

18 Ibid [121]. 19 Ibid [151]. 20 Boivin c la France et la Belgique, et 32 autres Etats membres du Conseil de l’Europe ECHR 2008-IV, para 235. From here on cited as: “Boivin ECHR 2008-IV”. 21 Behrami App no 71412/001 and Saramati App no 78166/01 (ECtHR, 02 May 2007), para 2. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid.

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the international organization could implicate state responsibility even if no direct or indirect involvement of the respondent state(s) was found. Shortly after the decision in Boivin, the ECtHR rendered its judgments in Connolly26 and Biret27, in which it further clarified how it would reconcile the approaches taken in Bosphorus and Behrami. In Connolly, the ECtHR extended the line of reasoning adopted in Boivin to the EU and declared the complaint inadmissible ratione personae given that it was in fact directed against the EU rather than its member states, which neither directly nor indirectly engaged in the measures complained of.28 In Biret, the ECtHR explicitly distinguished the various claims of the applicant and pursued different approaches to the different scenarios it had to deal with. Firstly, it found the complaint against proceedings before the ECJ inadmissible ratione personae since such proceedings were solely governed by the procedural rules of the EU and none of the member states was either directly or indirectly involved.29 Secondly, it held that the implementation of directives was generally eligible to give rise to state responsibility under the Convention, but that the respondent was presumed to act in compliance with the Convention given the equivalent protection provided by the EU as established in Bosphorus and the failure of the applicant to rebut the presumption by proving manifest deficiency in this regard.30 Less than a year later, the ECtHR undertook the final step towards connecting its equivalent protection doctrine to the approach taken in Behrami in its Gasparini judgment.31 The case concerned an individual complaint challenging the confidentiality of procedures before the North Atlantic Treaty Organization (“NATO”) Appeals Board under Art. 6 of the Convention. The ECtHR deduced from its earlier decisions that, when transferring sovereign rights to an international organization, the member states are under an obligation to ensure that the international organization itself

26 Connolly c 15 Etats Membres de l’Union Européenne App no 73274/01 (ECHR, 09 December 2008). From here on cited as: “Connolly App no 73274/01 (ECHR, 09 December 2008)”. 27 La Société Etablissements Biret et Cie S.A. et la Société Biret International c 15 Etats Membres de l’Union Européenne App no 13762/04 (ECHR, 09 December 2008). From here on cited as: “Biret App no 13762/04 (ECHR, 09 December 2008)”. 28 Connolly App no 73274/01 (ECHR, 09 December 2008). 29 Biret App no 13762/04 (ECHR, 09 December 2008), para 2. 30 Ibid. 31 Gasparini c Italie et Belgique App no 10750/03 (ECHR, 12 May 2009).

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guarantees a protection of individual rights on a level comparable to the standard of the Convention.32 If that is the case, the member states are not to be held liable for acts attributable to the international organization.33 By that, the ECtHR clarified that in the scenario of direct execution, i.e. where no direct or indirect involvement of the member state could be found, it would exempt states from responsibility under the Convention only if the respective international organization actually provided equivalent protection. Thus, in Gasparini, the ECtHR went on to analyze whether the protection provided by NATO and the Appeals Board was manifestly deficient in light of the fact that the individual complaint was directed against a structural deficit inherent in the international organization.34 Since the ECtHR was unable to find the standard of fundamental rights provided to be manifestly deficient, it declared the complaint to be inadmissible ratione materiae.35 In summary, equivalent protection on the level of an international organization shields its member states from liability under the Convention for acts attributable to the international organization and for acts attributable to the member states due to an implementing act. For the ECtHR, state responsibility generally exists independently of the question of whether there is an implementing act of the member state. This leads to the conclusion that if the ECtHR in a particular case found state responsibility, the act of the member state giving rise to its liability would not lie in an implementing act itself but in the prior act of setting up or acceding to an international organization which does not provide a standard of human rights protection equivalent to that of the Convention.36 On the other hand, as the Gasparini judgment explicitly pointed out, if member states create or accede to an international organization that provides equivalent protection, they can reasonably believe and trust in any obligation this organization imposes upon them to be in compliance with the Convention.

32 33 34 35 36

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Ibid. Ibid. Ibid. Ibid. See also Grabenwarter (n 8), Art. 1 para 8.

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III. The Future of the Presumption after the EU’s Accession to the Convention Against this background the issue can be addressed whether the Bosphorus-presumption will continue to be part of the ECtHR’s legal reasoning when dealing with EU legal acts after the EU has acceded to the Convention. Given that the presumption is currently applied exclusively to EU member states since individual complaints cannot yet be directed against the EU itself,37 it becomes necessary to distinguish two questions in this context: Firstly, whether the equivalent protection formula should be extended to the EU itself and secondly, whether the presumption will continue to apply for the EU member states. A. Extension to the EU By the time the EU has acceded to the Convention, individuals affected by EU legal acts will be able to direct an individual complaint against the EU which as a legal entity separate from its member states and which, as a High Contracting Party, could be named respondent in an individual complaint procedure. The question then becomes whether the EU would also enjoy the presumption of equivalent protection in a sense that it would be generally shielded from liability under the Convention. Scholars in favor of extending the formula to the EU mostly rely on a broad reading of the Bosphorus judgment, which is interpreted as the ECtHR’s clarification of its approach towards the European legal order as a whole rather than a mere decision on the underlying scenario of indirect execution.38 For that purpose, it is submitted that the ECtHR exercised judicial restraint concerning EU legal acts and, by holding that the EU legal

37 Matthews v United Kingdom ECHR 1999-I 251 para 32; Connolly App no 73274/01 (ECHR, 09 December 2008), para 2; Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v the Netherlands ECHR 2009-I 175, 198. 38 Paul Mahoney, ‘From Strasbourg to Luxembourg and Back: Speculating about Human Rights Protection in the European Union after the Treaty of Lisbon’ (2011) 32 Human Rights Law Journal 73, 78-79; Paul De Hert and Fisnik Korenica, ‘The Doctrine of Equivalent Protection: Its Life and Legitimacy Before and After the European Union’s Accession to the European Convention on Human Rights’ 13 German Law Journal 874, 882.

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order provided equivalent protection, intended to show its respect for the ECJ.39 Thus, Bosphorus and the underlying equivalent protection formula should be understood to state that the ECtHR would not test EU legal acts against the Convention as long as the ECJ could exercise its jurisdiction given that in that case there was no need for the Strasbourg Court to step in.40 With the EU’s accession to the Convention, this situation would by no means change. Rather, the fact that the Convention would formally bind EU organs entails that the standard of protection on the EU level would even more be equivalent to that of the Convention and, furthermore, the ECJ would continue to provide equivalent protection given that its prior involvement would be required under the exhaustion of remedies rule enshrined in Art. 35 of the Convention.41 Consequently, there would be no reason for the Strasbourg Court to not apply the Bosphorus-presumption vis-à-vis the EU.42 The following analysis will, however, show that this line of argument contradicts the holding of the ECtHR in Bosphorus and that the rationale of the formula, the principle of equality among the Contracting Parties as well as the purpose of accession itself persuasively argue against an extension of the Bosphorus-presumption to the EU. 1. Rationale of the Bosphorus-Presumption Firstly, an extensive reading of Bosphorus is neither justified by the language of the decision nor by the subsequent case law in which the ECtHR has applied the equivalent protection formula. As laid out above, the Bosphorus holding is limited to the scenario of indirect execution of EU law

39 Samantha Besson, ‘The European Union and Human Rights: Towards A Post-National Human Rights Institution?’ (2006) 6 Human Rights Law Review 323, 358. 40 See eg Cathryn Costello, ‘The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe’ (2006) 6 Human Rights Law Review 87, 115ff. 41 See for the latter Christian Timmermans, ‘Fundamental Rights Protection in Europe before and after Accession of the European Union to the European Convention on Human Rights’ in Marjolein van Roosmalen, Ben Vermeulen, Fried van Hoof and Marten Oosting (eds), Fundamental Rights and Principles. Liber Amicorum Pieter van Dijk (Intersentia 2013) 225, 232. 42 See eg Mahoney (n 45) 78. .

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by EU member states and only concerned the issue of a potential liability for EU member states. Moreover, the language of Bosphorus clearly shows that the formula was developed solely to balance the interest of international cooperation against the possible circumvention of the Convention by creating an international organization not formally bound to it. Furthermore, the ECtHR’s subsequent case law indicates that the equivalent protection formula as developed in Bosphorus was not intended as a statement of clarification with regard to the EU legal order but as the starting point of the ECtHR’s approach on the issue of state responsibility for acts of international organizations in general. This is shown by the rationale and dogmatic foundation of the formula. As laid out above, the equivalent protection doctrine implies that the reason why member states could be held liable for acts of an international organization lies in their failure to safeguard that the international organization provides an adequate standard of human rights protection. An extension of the equivalent protection formula to the EU, however, would run afoul this logic given that the point of reference of the formula is the EU itself. Moreover, it has to be noted that the equivalent protection formula solves the dilemma the EU member states are facing when confronted with conflicting obligations under the Convention on the one hand and under EU law on the other hand. The EU itself, however, does not qualify for the relaxed standard which the equivalent protection formula provides since it is not facing conflicting international obligations and consequently, does not find itself in the same dilemma as the EU member states when executing EU law. 2. Equality of the High Contracting Parties Secondly, an application of the Bosphorus-presumption to cases in which the EU is respondent would privilege the EU (and the ECJ) compared to all other 47 member states to the Convention.43 While the conduct of these

43 Tobias Lock, ‘EU accession to the ECHR: implications for the judicial review in Strasbourg’ (2010) 35 European Law Review 777, 798; Lock, ‘The ECJ and the ECtHR: The Future Relationship between the Two European Courts’ (2009) 8 The Law and Practice of International Courts and Tribunals 375, 396; Walter Obwexer, ‘Der Beitritt der EU zur EMRK: Rechtsgrundlagen, Rechtsfragen und Rechtsfol-

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member states would be strictly scrutinized under the Convention, EU acts would be presumed to be in conformity with the Convention. By that the ECtHR would be forced to give up one of its basic principles, namely that all Contracting Party are to be treated equally.44 That leads to the question whether the specific characteristics of the EU require or at least justify an exception to the principle of equality among Contracting Parties.45 This would be supported by the fact that the EU constitutes an autonomous legal order sui generis which is not comparable to that of sovereign states and, consequently, that the principle of equality cannot be applied to the EU in total.46 Indeed, the ECJ’s language in its recent Opinion 2/13 implies that the approach of dealing with the EU as if it were a sovereign state when it comes to the Convention runs afoul to the sui generis character of the EU legal order.47 On the other hand, the ECtHR would by no means be obliged to take the internal specifics of the EU into account when dealing with its liability under the Convention especially since under general international law a reliance on internal specifics does not qualify for an exemption from international responsibility.48

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gen’ (2012) Europarecht 115, 147; Jessica Baumann, ‘Auf dem Weg zu einem doppelten EMRK-Schutzstandard? Die Fortschreibung der Bosphorus-Rechtsprechung des EGMR im Fall Nederlandse Kokkelvisserij’ (2011) 38 Europäische Grundrechtezeitschrift 1, 10; Georg Ress, ‘L’adhésion de l’Union européenne à la Convention européenne des droits de l’homme’ in Patrick Titiun (ed), La conscience des droits. Mélanges en l’honneur de Jean Paul Costa (Dalloz 2011) 519, 526; Walter Obwexer, ‘Der Beitritt der EU zur EMRK unter besonderer Berücksichtigung des Verhältnisses zwischen EGMR und Gerichtshof der EU’ in Gerhard Hafner, Franz Matscher and Kirsten Schmalenbach (eds), Völkerrecht und die Dynamik der Menschenrechte. Liber Amicorum Wolfram Karl (facultas.wuv 2012) 186, 200. Assanidze v Georgia ECHR 2004-II 221, para 142: ‘Indeed, for reasons of legal policy – the need to maintain equality between the States Parties and to ensure the effectiveness of the Convention – it could not be otherwise’. Sionaidh Douglas-Scott, ‘The Court of Justice of the European Union and the European Court of Human Rights After Lisbon’ in Sybe de Vries, Ulf Bernitz and Stephen Weatherill (eds), The Protection of Fundamental Rights in the EU After Lisbon (OUP 2013) 153, 161; De Hert and Korenica, (n 40) 891; Mahoney (n 40) 80. Douglas-Scott (n 47) 161; De Hert and Korenica (n 40) 891. Opinion 2/13 [2014], ECLI:EU:C:2014:2454, para. 193. Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory PCIJ Series A/B no 44 (1932) 24: ‘[A]ccording to generally

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Rather, an exception from that customary rule would require the parties to explicitly govern that issue in any future Accession Agreement. Furthermore, it should be taken into account that a privileged treatment of the EU could destabilize and weaken the ECtHR’s credibility and acceptance in the remaining 47 legal orders.49 First of all, such a privilege would be difficult to communicate to non EU member states, such as Russia or Turkey. Secondly, treating the ECJ as primus inter pares vis-à-vis the courts of the EU member states could signal the highest national courts of these jurisdictions that they are not providing the same level of human rights protection as the ECJ does and rank these courts below the ECJ. Against this background it is sometimes argued that a potential inequality could be avoided by extending the Bosphorus-presumption to those other Contracting Parties which also provide a standard of human rights protection equivalent to that of the Convention.50 Even if one considers such a solution appealing in light of the case backlog of the Strasbourg Court,51 there would be significant consequences for the ECtHR’s future since it would de facto give up its position as guardian of the European public order.52 Further, the ECtHR would divide the European human rights landscape into two categories, namely “good states” which provide equivalent protection and as such do not require strict scrutiny and “bad

49 50

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accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s Constitution but only on international law and international obligations duly accepted (…)’; cf also Art. 27(2) of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations: ‘An international organization party to a treaty may not invoke the rules of the organization as justification for its failure to perform the treaty’. De Hert and Korenica, (n 40) 891 acknowledge that but nevertheless argue for applying the formula to the EU. Andrea Edenharter, ‘Der EGMR als Verfassungsgericht der EU? – Mögliche Implikationen des Beitritts der EU zur EMRK’ in Dominik Elser, Anja Eugster, Andreas Kind, Matthias Uffer, Rahel Baumgartner, Kathrin Williner, Stefan Schlegel, Dominika Blonski, Alexander Spring, Irene Grohsmann, Rafael Häcki (eds.), Das letzte Wort – Rechtsetzung und Rechtskontrolle in der Demokratie (Nomos, 2014) 187, 195. Cf Jessica Baumann (n 45) 10. Loizidou v Turkey ECHR1996-VI 2216, para 75; Bosphorus ECHR 2005-VI 107, para 156.

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states” which would continue to be fully scrutinized by the ECtHR.53 It is not hard to imagine that such an approach would provoke states to terminate their membership in the Council of Europe. Thus, this approach endangers the success story of the Convention and should be rejected. 3. Purpose of Accession Lastly, an extension of the equivalent protection formula to the EU would run afoul the very purpose of accession, namely to close human rights gaps and to increase the credibility of the EU on the issue of human rights protection by submitting the EU legal order to the external control of the Strasbourg Court, and is as such not in the interest of the EU itself.54 If, the equivalent protection doctrine were extended to the EU, an external control by the European Court of Human Rights would be limited to exceptional circumstances while the EU would generally be presumed to act in conformity with the obligations under the Convention. This result would render the first goal of accession, i.e. to close human rights gaps, moot.55 The same is true for the second goal of accession which lies in increasing EU credibility. If the ECtHR shied away from an external control of EU legal acts, the EU would lose the opportunity to show off the maturity of its human rights protection system. Rather, the unsatisfactory status quo would continue as is and the accession would lose its very purpose. Thus, an extension of the equivalent protection doctrine to the EU cannot possibly lie in the interest of the EU.

53 Jessica Baumann (n 45) 10; Paul Gragl, The Accession of the European Union to the European Convention on Human Rights. A Study on the Compatibility of the European Union’s Legal Autonomy with the System of Human Rights Protection under the European Convention on Human Rights (OUP 2013) 72. 54 Giorgio Gaja, ‘The Review by the European Court of Human Right of Member States‘ Acts Implementing European Union law: „Solange“ Yet Again?’ in Pierre M Dupuy, Bardo Fassbender, Malcolm N Shaw and Karl P Sommermann (eds), Völkerrecht als Wertordnung, Festschrift für Christian Tomuschat (N.P. Engel 2006) 517, 525; Christian Tomuschat, ‘Der Beitritt der Europäischen Union zur EMRK – Vom Mangel zum Überfluss’ in Sabine Leutheusser-Schnarrenberger (ed), Vom Recht auf Menschenwürde. 60 Jahre Europäische Menschenrechtskonvention (Mohr Siebeck 2013) 71, 80. 55 Julie Vondung, Die Architektur des europäischen Grundrechtsschutzes nach dem Beitritt der EU zur EMRK (Mohr Siebeck 2012) 263.

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C. Continuance for EU Member States Having concluded that the equivalent protection doctrine should not be extended to the EU once it has acceded to the Convention, the question still remains whether EU member states should continue to enjoy the Bosphorus-presumption. In favor of that the striking argument could be made that the situation for the EU member states does by no means change once the EU has acceded to the Convention.56 Rather, by obliging the EU in Art. 6(2) of the Lisbon Treaty to accede to the Convention and, eventually, to formally bind the EU to the rights enshrined therein, the EU member states have done all there is within their power to provide a standard of human rights protection equivalent to that of the Convention on the EU level. Thus, exempting member states from responsibility under the Convention for EU legal acts seems even more necessary given that an individual complaint against the EU would then be possible. Nevertheless, it is submitted that the issue on whether EU member states should continue to benefit from the equivalent protection formula has to be answered within the context of the mechanism set up in any accession agreement as to how an individual complaint directed against an EU legal act shall proceed. The specifics of the EU legal order challenge the traditional system of the Convention by the peculiarity that in the scenario of indirect execution the member state as one High Contracting Party executes a legal act for which another High Contracting Party, namely the EU, bears responsibility.57

56 L.F.M. Besselink, ‘The European Union and the European Convention on Human Rights after the Lisbon Treaty: From Bosphorus sovereign immunity to full scrutiny?’ (2008) accessed 08 September 2017. 57 Jörg Polakiewicz, ‘The European Union’s accession to the European Convention on Human Rights – A report on work in rapid progress’ in Werner Meng, Georg Ress and Torsten Stein (eds), Europäische Integration und Globalisierung. Festschrift zum 60-jährigen Bestehen des Europa-Instituts (Nomos 2011) 375, 380; Dorothee von Arnim, 'The Accession of the European Union to the European Convention on Human Rights' (2012) Kritische Vierteljahresschrift für Gesetzgebung und Rechtsprechung 37, 49-50; Johan Callewaert, ‘L’adhésion de l’Union européene à la Convention européene des droits de l’homme: une question de cohérence’, in Leif Berg, Montserrat Enrich Mas, Peter Kempees and Dean Spielmann (eds), Cohérence et impact de la jurisprudence de la Cour européenne des droits de l’homme, Liber amicorum Vincent Berger, (Oisterwijk, Wolf Legal

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The Draft Agreement had solved that problem by introducing a co-respondent mechanism58 next to a rule concerning attribution.59 In the scenario of indirect execution the interplay between both would have had the consequence that a complainant would have been obliged to direct her complaint against the executing member state while the EU could later join the proceedings as a co-respondent. Art. 3(5) of the Agreement stated that the EU could entertain the co-respondent mechanism either by following an invitation by the ECtHR to do so or by requesting the co-respondent status itself and following a decision by the ECtHR whether such a

Publisher, 2013) 73, 78; Jörg Philipp Terhechte, ‘Autonomie und Kohärenz – Die Eigenständigkeit der Unionsgrundrechte im Zuge des EMRK-Beitritts der Europäischen Union’ in Julia Iliopoulos-Strangas, Vasco Pereira da Silva and Michael Potacs (eds) Der Beitritt der Europäischen Union zur EMRK (Nomos 2013) 23, 45. 58 Art. 3(2) – Art. 3(4) of the Draft Agreement read: ‘(2) Where an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the rights at issue defined in the Convention or in the protocols to which the European Union has acceded of a provision of European Union law, including decisions taken under the Treaty on European Union and under the Treaty on the Functioning of the European Union, notably where that violation could have been avoided only by disregarding an obligation under European Union law. (3) Where an application is directed against the European Union, the European Union member States may become co-respondents to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the rights at issue defined in the Convention or in the protocols to which the European Union has acceded of a provision of the Treaty on the European Union, the Treaty on the Functioning of the European Union or any other provision having the same legal value pursuant to those instruments, notably where that violation could have been avoided only by disregarding an obligation under those instruments. (4) Where an application is directed against and notified to both the European Union and one or more of its member States, the status of any respondent may be changed to that of a co-respondent if the conditions in paragraph 2 or paragraph 3 of this article are met.’. 59 Art. 1(4) of the Accession Agreement reads: ‘For the purposes of the Convention, of the protocols thereto and of this Agreement, an act, measure or omission of organs of a member State of the European Union or of persons acting on its behalf shall be attributed to that State, even if such act, measure or omission occurs when the State implements the law of the European Union, including decisions taken under the Treaty on European Union and under the Treaty on the Functioning of the European Union (…).’.

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request was plausible.60 Thus, whether the EU joined individual complaint proceedings as co-respondent was widely within its own discretion.61 Against this background, a continuance of the equivalent protection formula for the EU member states would have perverted the system set up by the Draft Agreement. If in the specific circumstances of a case, the EU decided to shy away from joining the proceedings as co-respondent, the individual complaint would have continued to be directed solely against the EU member state, which, however, would have generally been exempted from responsibility under the Convention under the Bosphorus-presumption. As a consequence, a complainant would have been without an effective remedy against the violation of her rights. On the contrary, if the EU decided to join the proceedings as co-respondent and a violation of the Convention was found by the ECtHR, Art. 3(7) of the Accession Agreement contained the idea of joint liability of the EU member state and the EU.62 Thus, if the equivalent protection continued to be applied for the EU member states, there would have been a motivation for the EU to shy away from entertaining the co-respondent mechanism rendering the system set up in the Draft Agreement moot. For these systematic reasons, the Bosphorus-presumption could not continue to apply for EU member states if the EU had acceded according to the Draft Agreement (which the ECJ has held to not be in conformity with EU primary law in its Opinion 2/13).

60 Art. 3(5) of the Accession Agreement reads: ‘A High Contracting Party shall become a co-respondent either by accepting an invitation from the Court or by decision of the Court upon the request of that High Contracting Party. When inviting a High Contracting Party to become co-respondent, and when deciding upon a request to that effect, the Court shall seek the views of all parties to the proceedings. When deciding upon such a request, the Court shall assess whether, in the light of the reasons given by the High Contracting Party concerned, it is plausible that the conditions in paragraph 2 or paragraph 3 of this article are met.’. 61 See e.g. von Arnim (n 59) 51; Lock (n 1) 172-173; Jean Paul Jacqué, ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) 48 Common Market Law Review 995, 1015. 62 Art. 3(7) of the Accession Agreement reads: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible.’.

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Consequently, it remains to be seen on how the scenario of indirect execution will be tackled in any renewed accession agreement in the future. If the negotiating parties chose to introduce the opportunity to direct an individual complaint against the EU itself, the question whether the EU member states are still shielded by the equivalent protection formula ceases to exist since the procedural rules circumvent the procedural scenario underlying Bosphorus. If, however, the approach of joint liability will continue to be followed in future, it is submitted that the Bosphorus-presumption cannot have any future vis-à-vis the EU member states. IV. A Better Solution: The Margin of Appreciation Doctrine Notwithstanding these findings, any future rejection of the Bosphorus-presumption does not close the door for the Strasbourg Court to take into account the specifics of the EU, including the fact that 28 European states which are at the same time party to the Convention have consented to the legal order the EU represents. Rather, the margin of appreciation doctrine offers a solution for considering the standard of human rights protection provided for by the ECJ without provoking the above mentioned concerns that strike in favor of abandoning the Bosphorus-presumption.63 The margin of appreciation doctrine as developed by the ECtHR is based on the principle of subsidiarity, which means that the primary responsibility for guaranteeing the Convention rights lies with the High Contracting Parties as pointed out by Art. 1 of the Convention, while the ECtHR’s task is limited to guard the European public order by exercising its external control.64 For the purpose of determining the content of the European public order, the Strasbourg Court generally considers whether a

63 Lech Garlicki, ‘The Relationship between the European Court of Justice and the European Court of Human Rights: the Strasbourg Perspective’ in Julia IliopoulosStrangas and Hartmut Bauer (eds), Die Neue Europäische Union. The New European Union. La Nouvelle Union Européene (Berlin, BWV Berliner WissenschaftsVerlag, 2006), 113, 128; Jörg Polakiewicz, ‘The European Union’s Charter of Fundamental Rights and the European Convention on Human Rights – Competition or Coherence in Fundamental Rights Protection in Europe’ (2002) 14 European Review of Public Law 853, 875. 64 See e.g. Handyside v United Kingdom App no 5493/72 Series A no 24 (1976) 5 para 48.

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European consensus exists on the issue before it.65 In the case of the EU it has to be noted that its legal order generally represents the consensus between (at the time of writing) 28 European states which are at the same time member states to the Convention.66 This is especially true for the human rights protection afforded by the ECJ which is bound by the Charter of Fundamental Rights that in itself is built on the Convention.67 Consequently, it seems appropriate for the ECtHR to award the ECJ and the EU a wide margin of appreciation in general. A wide margin of appreciation would, however, be applicable only in those circumstances where some amount of leeway exists for the High Contracting Parties. Thus, awarding a wide margin of appreciation would not consist of framing the equivalent protection doctrine in the context of the margin of appreciation doctrine. Rather, some guarantees under the Convention, e.g. the prohibition of torture, would be excluded from any application of the margin of appreciation. Moreover, it is necessary to recall that some areas of EU activity are still suffering from a deficit of legitimation given that participation of the European Parliament and jurisdiction of the ECJ are still excluded to some extent and would, thus, not qualify for a wide margin of appreciation. This is especially true for the Common Foreign and Security Policy.68 Thus, it is suggested to award a wide margin of appreciation to the EU in light of the circumstances of a particular case and in those areas where the specifics of the EU legal order justify that assumption, namely where EU legal acts truly reflect a European consensus and are motivated by the goal of deepening European integration. Among others, those areas of law would include European economic law, legal acts concerning the area of freedom, security and justice and horizontal relationships between private persons, which require a balancing of individual human rights.

65 Fretté v France ECHR 2002-I 345 para 40; A, B and C v Ireland App no 25579/05 (ECHR, 16 December 2010) para 234; Rees v United Kingdom App no 9532/81 Series A no 106 (1986) 6 para 37; Stjerna v Finland App no 18131/91 Series A no 299 (1994) 50 para 39. 66 Garlicki (n 65), 127. 67 Johan Callewaert, ‘The European Convention on Human Rights and European Union law: a long way to harmony’ (2009) European Human Rights Law Review 768, 776. 68 Cf. Art. 31 and Art. 42 (2) of the TEU and Art. 275 (1) of the TFEU.

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V. Summary In conclusion, the accession of the EU to the European Convention on Human Rights would render the application of the Bosphorus-presumption moot. The ECtHR’s case law on the equivalent protection formula shows that it is used as a consistent approach to deal with state responsibility for legal acts by international organizations which as such are not party to the Convention. However, it is exactly this purpose of evaluating state responsibility that eventually strikes against transferring the formula to the EU itself once it has acceded to the Convention. Moreover, the principle of equality among High Contracting Parties strikes against an extension of the Bosphorus-presumption to the EU. Since an extension would furthermore work against the very goals which the EU seeks to achieve by acceding to the Convention, it would not even be in the interest of the EU itself. The same is true for a future application of the formula to the EU member states: Either the issue is moot since an individual complaint could be directed against the EU even in the scenario of indirect execution or the future agreement stays with the current approach of joint liability which would even more forbid applying the formula. Lastly, the margin of appreciation doctrine offers a more attractive solution to consider the specifics of the EU legal order and seems more appropriate than continuing to apply the equivalent protection formula. In light of Opinion 2/13, however, the equivalent protection formula as it now stands will continue to apply to the EU member states as long as a happy end to the story of EU accession is not in sight.

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The Co-Respondent Mechanism before the European Court of Human Rights: An Adequate Procedural Solution or a Flawed Mechanism? Tina Korošec*

Abstract The European Union’s long and ongoing journey of accession to the European Convention on Human Rights (ECHR) came to a boiling point when the situation in a post-accession period needed to be addressed. This is where the co-respondent mechanism came into the picture. During negotiations on accession this procedural mechanism was seen as the most controversial change to the Convention system, introduced by the Draft Accession Agreement. Ultimately, the Court of Justice of the European Union (CJEU) found the Draft Accession Agreement incompatible with EU law. However, most of the mechanism’s flaws had already been widely discussed prior to the CJEU’s Opinion 2/13 on EU accession to the ECHR. These discussions revealed that some of the flaws might be amendable in the future. The paper, first looking into the past, examines the way in which the mechanism, as drafted in the aforementioned rejected agreement, dealt with the situation of the EU and its Member States becoming parties to the ECHR at the same time. The author looks at the principles guiding the idea of incorporating the co-respondent mechanism into the existent procedure before the European Court of Human Rights. By analysing the relevant articles of the rejected Draft Accession Agreement, the paper then focuses on the most important features of the mechanism. It also discusses its weaknesses, with main emphasis on those criticized by the CJEU. Lastly, the author addresses the question whether the parties, by bargaining a politically acceptable deal on the EU’s accession to the ECHR, found an adequate procedural solution also for the applicants. Throughout the paper, the author hints at the changes to the ‘old

* The views and opinions expressed in this article are those of the author and not in any sense those of the European Court of Human Rights.

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version’ of the co-respondent mechanism that need to be made in order to bring the project of accession to a successful end. 1. Introduction At present, the European Union (EU, Union) is not a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)1. In December 2014 the Court of Justice of the European Union (CJEU) found the agreement on the accession of the EU to the ECHR incompatible with EU law (Treaties).2 One of the novelties, introduced by the rejected Draft Accession Agreement,3 was the co-respondent mechanism. The mechanism intended to fill in the gap in the current state-orientated procedure before the European Court of Human Rights (Court) which was not designed to deal with the applications lodged against another international organisation. In particular, with the EU as a party to the Convention the Court could be dealing with cases in which the party legislating and providing a legal basis for a violation of rights protected under the ECHR is not the same as the party acting upon this legislation in a manner that violates the applicant’s human rights.4 In order for the EU to accede to the ECHR, modifications to the Court proceedings as they stand at the moment are thus inevitable. The co-respondent mechanism as drafted in the rejected Draft Accession Agreement is a good starting point for any future negotiations on the agreement on the accession of the EU to the ECHR. Although the accession project has failed in its first real attempt, there are lessons to be learnt from this. Fortunately, the CJEU was straight-forward in pinpointing where the co-re-

1 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended, 4 November 1950, ETS 5 (European Convention on Human Rights, Convention, ECHR). 2 CJEU, Opinion 2/13, EU Accession to the ECHR, Opinion of 18 December 2014, ECLI:EU:C:2014:2454. 3 CDDH, Fifth Negotiation Meeting between the CDDH Ad Hoc Group and the European Commission on the Accession of the European Union to the European Convention on Human Rights, Final report to the CDDH, 47+1(2013)008, 10 June 2013, para 38. 4 Ibid.

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spondent mechanism was wrong.5 Building on the concept of the failed co-respondent mechanism and the CJEU’s Opinion 2/13 the author in this paper looks closer at the adjustments to the already existing system of human rights protection under the ECHR that have to be made in order to make the next accession attempt successful. 2. Developments in the Accession Process The idea of the European Communities’ accession to the ECHR was first addressed by the European Commission back in 1979.6 Since then, the European Union has taken important steps to incorporate human rights into the EU law framework. Fundamental rights have already acquired the status of primary EU law, but the EU’s accession to the ECHR has been side-tracked and was not pushed forward until the adoption of the European Union Charter of Fundamental Rights.7 Following this development, the Lisbon Treaty provided an explicit legal basis under EU primary law for the EU’s accession.8 The Council of Europe (CoE), the other party in this emerging legal relationship, responded with Protocol No. 14 which made accession to the Convention legally possible for entities other than states.9

5 Opinion 2/13 (n 2) para. 258. 6 See Accession of the Communities to the European Convention on Human Rights: Commission Memorandum, Bulletin of the European Communities, Supp 2/79, COM (79) final. 7 On the protection of fundamental rights in the EU see generally: Paul Craig and Gráinne de Búrca, EU Law: Text, Cases And Materials (5th edn, OUP 2011) 362ff. 8 Consolidated version of the Treaty on European Union [13 December 2007, 2008] OJ C115/01, Art. 6(2). See also Rosmarie Doblhoff-Dier and Sandra Kusmierczyk, ‘Present and Future Relations between the ECJ and the Court: with Special Consideration to the Draft Accession Agreement’ (2013) 7(3) Vienna Journal on International Constitutional Law 349, 355–356. 9 Protocol 14 to the European Convention for the Protection of Human Rights and Fundamental Freedoms Amending the Control System of the Convention, 1 June 2010, CETS 194, Art. 17. See Tobias Lock, ‘Accession of the EU to the ECHR: Who would be responsible in Strasbourg?’ in Diamond Ashiagbor and others (eds), The European Union after the Treaty of Lisbon (Cambridge University Press 2012) 111.

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Subsequently, negotiations on technical and legal changes to the ECHR system, required by the EU’s accession, officially started in July 2010,10 although these matters had already been discussed by the Council of Europe’s Steering Committee on Human Rights (CDDH) in 2002.11 The task of drafting a legal instrument that would ‘guarantee coherence between the approaches of the Council of Europe and the European Union’ was entrusted to an informal group of 14 members (CDDH-UE) with an equal number of individuals representing Member States and Non-member States of the EU.12 The final package of drafts of revised instruments on the accession of the EU to the Convention was agreed on in April 2013 and then attached to the final report to the CDDH.13 After more than three decades, the process of accession entered, what then seemed to be, its last stage. The Draft Accession Agreement on the accession of the European Union to the ECHR was part of the revised package of instruments, which included provisions on the necessary adjustments to the ECHR text and system. The biggest novelty was the creation of a co-respondent mechanism in cases involving both the EU and one or more of its Member States. In July 2013, on the basis of Art. 218(11) of the Treaty on the Functioning of the European Union (TFEU),14 the European Commission submitted a request for an opinion of the CJEU on the compatibility of the draft agreement with EU treaties.15 In December 2014, to the surprise of many,

10 Ibid Lock, 111. 11 See Report by the Steering Committee for Human Rights (CDDH), Study of Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights, DG II(2002)006, 28 June 2002. 12 Final report to the CDDH (n 3) para 2. 13 Ibid para 9. The drafts of revised instruments on the accession of the EU to the ECHR consisted of a draft agreement on the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms (Draft Accession Agreement), a draft declaration by the EU, a draft rule to be added to the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements in cases to which the EU was to be a party, a draft model of a memorandum of understanding and a draft explanatory report to the Accession Agreement (Draft Explanatory Report). 14 Consolidated version of the Treaty on the Functioning of the European Union [13 December 2007, 2008] OJ C115/01. 15 Opinion 2/13: Request for an opinion submitted by the European Commission pursuant to Art. 218(11) TFEU OJ C260 (2013/C 260/32) 7 September 2013.

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the CJEU found the agreement on the accession of the EU to the ECHR incompatible with Article 6(2) of the Treaty on European Union (TEU) or with Protocol No. 8 respectively.16 However, for the reasons outlined below, the aforementioned draft, especially its co-respondent mechanism, did not lose the relevancy entirely and remains the starting point for further negotiations following the rejection by the CJEU.17 3. The Practice Pre-Accession At present, the EU is not a party to the ECHR. This means that any complaint directed against the EU is found incompatible ratione personae with the provisions of the ECHR.18 Notwithstanding the current admissibility barrier, the Court has in some cases, which raised questions of EU law and possible EU’s responsibility for human rights violations, attributed the latter to the acting EU Member State.19 Of course this has been possible only when an applicant lodged a complaint against a Member State, implementing the impugned EU law, after all domestic remedies in that Member State’s legal order had been exhausted.20 In the Matthews case, which is often referenced as an example of a case to which the co-respondent mechanism could be applied in the post-accession period, the Court held the United Kingdom responsible for a breach of the Convention for an act which was in its origin the result of the Member State’s enforcement of the EU’s (primary) law.21 In cases in which a Member State contravened the Convention with its actions but a violation without breaching the obligation the EU’s legislation imposed was unavoidable,22 the Court has been able to hold the State accountable

16 Opinion 2/13 (n 2). 17 Draft Accession Agreement (n 3) Art. 3. 18 See, mutatis mutandis, Stephens v Cyprus, Turkey and the United Nations (dec.) App no. 45267/06, (Court, 11 December 2008). 19 Eg Matthews v UK App no. 24833/94 (Court, 18 February 1999); Bosphorus v Ireland App no. 45036/98 (Court, 30 June 2005). 20 ECHR (n 1) Art. 35. 21 See Tobias Lock, ‘Accession of the EU to the ECHR: Who Would Be Responsible in Strasbourg?’ (2010) Working Paper Series, 5 accessed 16 September 2014. 22 See Tobias Lock, ‘Sharing responsibility? The co-respondent mechanism and EU accession to the ECHR’ (Sharesproject, 8 October 2012) accessed 13 August 2014: under these circumstances Member State has to decide to either ‘violate EU’s legislation and risk the EU’s sanctions or obey the EU rules but violate the ECHR’. Cf. Ioanna Kosmidou, ‘Draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)’ (Thesis, Central European University 2012) 2 f. See International Law Commission, Draft Articles on the Responsibility of International Organizations, with commentaries (2011) UN GAOR Supp No 10 (A/ 66/10) ch V.E.1, 13. Bosphorus (n 19). For more on the Bosphorus case see Daniel Engel, The Future of the BosphorusPresumption, p. 133 in this volume and Sionaidh Douglas-Scott, ‘Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland’ (2006) 43 Common Market Law Review 243.

The Co-Respondent Mechanism before the European Court of Human Rights

use in cases where the same state is providing the legal basis for the violation and acting upon it. Currently, the procedure before the Court offers two possibilities for entities interested in the outcome of the case to join the proceedings. Third party intervention is a procedural mechanism that the EU has already been able to use, while the possibility of having more than one respondent would become relevant for the EU only if it acceded. In the following subchapters the focus will be on the contextual and legal background that required the establishment of a new procedural mechanism alongside the existing ones to bring the EU and its Member States before the Court at the same time. 3.2 Third Party Intervention Since the EU is not party to the Convention and cannot be named as a respondent by the applicant in the case before the Court, there is only one possibility, namely the third party intervention, for the EU to join in the proceedings. When the applicant is a national of a state which is party to the Convention, the state has the right to submit written comments and to take part in hearings in all cases before the Court.27 Furthermore, the President of the Court may, if this is in the interest of the proper administration of justice, invite or grant leave to any person concerned apart from the applicant to submit written comments and to take part in hearings.28 This is the gate through which the EU has already successfully joined the proceedings in the Bosphorus case.29 However, the respondent and the intervening party do not hold same rights and obligations. The Court’s final decision is not binding for the third party nor does it become res iudicata in relation to it.30 Intervention thus has the procedural benefit for the third party to present its views on the case and offer arguments, which may ultimately lead to the Court’s decision being more convincing, but it does not have any direct legal consequences for the intervener, who is not a full party in the procedure.

27 28 29 30

ECHR (n 1) Art. 36. Ibid. Bosphorus (n 19) paras 122–128. Draft Explanatory Report (n 3) para 45 f.

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If the ultimate goal of accession is that the parties responsible for violation of the ECHR participate in the proceedings before the Court,31 there are several reasons why the third party intervention procedure cannot be the sole answer to the question of how to include the EU in proceedings. Firstly, there is no obligation for the third party to intervene. The concept is based on a voluntary approach.32 Secondly, the EU as a non-party to the ECHR can intervene only if asked or granted leave to intervene by the President of the Court. Once a party, this would not be a prerequisite in cases in which the applicant was an EU national. It a person filing a complaint was not an EU citizen, the EU’s intervention would still depend on the President’s decision to grant leave to intervene.33 Lock’s reference to asylum cases before the Court, generally dealing with non-EU citizens, is a good example of cases in which this problem of a limited participation could arise.34 Moreover, the EU’s intervention would be inappropriate as a sole procedural mechanism to avoid gaps in holding the right party accountable for human rights violations or to secure the enforceability of the Court’s decision, which are goals to be achieved with accession. The Court’s decision on the violation is neither addressed at the third party nor binding for it. For these reasons, the proposition of some national governments to adopt a revised third party intervention mechanism for the EU to be involved in cases as a sole procedural solution is not acceptable.35 Such proposal does not go together with the whole idea behind the EU’s accession to the Convention, which is to effectively avoid gaps in human rights protection.36 Nonetheless, even if it accedes, the EU should not be precluded from participating in proceedings before the Court as a third party intervener. According to the Draft Accession Agreement, third party intervention was expected to retain an important role for the EU’s involvement in proceed-

31 One of the goals of accession. Ibid para 39. 32 Compare with the co-respondent mechanism which is also voluntary. See chapter six. 33 ECHR (n 1) Art. 36. 34 Lock, ‘Accession of the EU to the ECHR’ (n 21) 25. 35 Xavier Groussot, Tobias Lock and Laurent Pech, ‘EU Accession to the European Convention on Human Rights: A Legal Assessment of the Draft Accession Agreement of 14th October 2011’ (2011) Foundation Robert Schumann, European Issues no 218, 7. 36 Draft Explanatory Report (n 3) para 39.

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ings before the Court.37 Despite all its weaknesses,38 when conditions for intervention are met, third party intervention may in many cases still be the most appropriate way to include the EU in proceedings and to have it defend the impugned legal basis for the alleged violation of Convention rights.39 3.3 More than One Respondent There is another existing form of involving more than one party in proceedings before the Court: the applicant can name more than one respondent from the outset. At this moment, this mechanism is not relevant for the EU because any complaint directed against it is considered inadmissible. For the following reasons it could also not be the only viable option if the EU became the party to the Convention. Firstly, proceedings with more respondents mean that the applicant does not only have to exhaust all domestic remedies in all legal orders concerned but also has to follow the six-month time-limit.40 Secondly, the answer to the question who is the correct respondent responsible for violations in cases involving EU law obligations is not as simple as pointing to the party whose authorities have acted, which would otherwise normally be the case. Accordingly, due to complexity of division of competences between the EU and its Member States, the burden of identifying the right respondent could not lie exclusively with the applicant. 4. Guiding Principles in Drafting the Co-Respondent Mechanism The co-respondent mechanism was drafted in a way that intended to balance the opposing interests of the EU and the Convention parties; it had to bring an end to gaps in participation, accountability and enforcement but

37 Ibid para 45. 38 See also Stian Øby Johansen, ‘The European Union’s Accession to the ECHR: As seen from Strasbourg’ (2012) 29 University of Oslo Faculty of Law Research Paper, 62 accessed 12 September 2014. 39 Draft Explanatory Report (n 3) paras 45 f. 40 ECHR (n 1) Art. 35(1).

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at the same time prevent the Court from interfering with the autonomy of the EU’s legal order.41 In the end, this is the reason the co-respondent mechanism assumed its final form – it had to satisfy everybody just enough to keep them in the game. The goals of accession remain the same even after the CJEU’s negative opinion on the Draft Accession Agreement. It is now just a matter of finding how far can the balancing of all relevant factors go to remain in line with the EU law requirements. The co-respondent mechanism, as shown below, has gone too far because it did not fully respect one particular requirement that could not be weighed against. 4.1 Gaps in Participation, Accountability, and Enforceability If the EU acceded to the ECHR, the Court would have a legal basis to hold the EU responsible for the violation of the Convention. Finding the party responsible for a violation could, however, be a difficult task to perform outside of the EU legal system. The special features of this legal system result in the fact that acts adopted by EU institutions may be implemented by its Member States and, conversely, provisions of EU primary law agreed upon by its Member States may be implemented by institutions, bodies, offices or agencies of the EU.42 These shared competences between the EU and its Member States could very well lead to a situation in which the Party to the ECHR enacting a relevant legal act is different from the one implementing it.43 In order to attribute responsibility for a violation to the right Party to the Convention in these cases, modalities to the current Court procedure are necessary.44 In addition to and in association with the above-mentioned responsibility notion, one of the main reasons for the introduction of the new mechanism is the need to avoid gaps in the Convention system in participation,

41 Draft Explanatory Report (n 3) para 39. 42 Draft Accession Agreement (n 3) Art. 1(3); Draft Explanatory Report (n 3) para 38. 43 Jörg Polakiewicz, ‘EU law and the ECHR: Will EU accession to the European Convention on Human Rights square the circle?’ (2013) Working Papers Series, 11 accessed 12 September 2014. 44 For reasons why the third party intervention mechanism does not suffice see chapter two.

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accountability, and enforceability. With regards to participation, the objective is to give all the actors concerned, i.e. not only the implementer of the relevant law but also its creator, the possibility to defend themselves.45 The accountability argument is based on responsibility for the violation, which should not lie solely with the party that acted as an agent of another High Contracting Party. Finally, in light of the goal of closing the gaps in enforceability the task is to find an effective remedy following the finding of a breach of the Convention and the way to resolve the potential incompatibility of a legal provision with the Convention. After all, the creator of the legal act is the one with the competence under EU law to change the contentious provision.46 It should, therefore, join the proceedings and become a full party bound by the judgment.47 4.2 Autonomy of the EU’s Legal Order According to the TEU, the EU’s accession to the ECHR shall not affect the EU’s competences as defined in the Treaties.48 Reference to the required preservation of the specific features of the Union and Union law has also been made in Protocol No. 8.49 Respect for distribution of competences between the EU and its Member States, and between the EU institutions has been at the forefront of the accession negotiations.50 In pursuance of the principle of autonomy, and the almost conflicting notion of avoiding gaps, the co-respondent mechanism would have to keep the autonomy of the EU’s legal order, jealously preserved by the CJEU, intact.51

45 Joshua Rozenberg, ‘EU accession to the ECHR will change Euro legal framework’ (The Law Society Gazette, 15 April 2013) accessed 14 August 2014. 46 Lock, ‘Sharing responsibility?’ (n 22). 47 Ibid. 48 TEU (n 8) Art. 6(2). 49 Protocol (No. 8) relating to Art. 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms [2010] OJ 83/273 (n 8) Art. 1. 50 Draft Explanatory Report (n 3) para 7. 51 See, eg Erik Stavefeldt, ‘EU accession to the ECHR in light of the specificity of the Union and Union law’ (Master of Laws Thesis, Lund University 2013) 18; Groussot et al (n 35) 7.

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Since the CJEU is the sole authority entitled to interpret EU law in a legally binding manner, the Court’s potential role has been seen as a serious threat to the autonomy of EU law.52 In particular, without limitations on its powers, the Court could be called upon to look closely at the distribution of the competences between the EU and its Member States to attribute responsibility for the violation to the right party. In 2009 the European Parliament expressed how keen the EU was to protect its autonomy by claiming that ‘accession will not in any way call into question the principle of autonomy of Union law, as the Court of Justice will remain the sole supreme court adjudicating on issues relating to EU law’.53 The main focus of the mechanism’s drafting was to hold the right party responsible for a violation and provide for the actual execution of the Court’s judgments but without the Court assessing a vertical division of competences.54 The negotiators had to devise a mechanism that would safeguard the CJEU’s monopoly to interpret and review the legality of EU acts, and give the Court a tool to find that a violation had taken place, without having to determine who was actually responsible for it. The co-respondent mechanism as negotiated into the Draft Accession Agreement tried to match the role of the Court in the system with the EU’s interests.5560 The CJEU, however, unequivocally found any provisions deviating from preservation of the specific characteristics of the EU and EU law, especially the autonomy of EU law, incompatible with the Treaties.56 Accordingly, any future negotiations on accession will have no place for balancing of interests in case of the autonomy of the EU’s legal order which requires full respect.

52 Cf. Johansen, ‘The European Union’s Accession to the ECHR’ (n 38) 77; Tobias Lock, ‘Walking on a Tightrope: The Draft Accession Agreement and the Autonomy of the EU Legal Order’ (2011) 48 Common Market Law Review 1025, 1035 f. 53 Resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedom, P7_TA(2010)0184, recital K. 54 Dominique Ritleng, ‘The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms: A Threat to the Specific Characteristics of the European Union and Union Law?’ (2012) Uppsala Faculty of Law Working Paper 2012:1, 9 accessed 13 August 2014. 55 60 See, eg provisions on joint responsibility in Draft Accession Agreement (n 3) Art. 3 which was to give the Court the possibility to decide that only one (EU or Member States) was responsible for the violation of ECHR. 56 Opinion 2/13 (n 2).

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4.3 Other The equal footing principle has been one of the key principles throughout the accession negotiations.57 Accordingly, the EU would have to accede to the Convention on equal footing with the other High Contracting Parties. However, the EU is an international organisation and not a conventional state party.58 While it is impossible to ignore the EU’s legal nature and push for the enforcement of this principle at any cost,59 the non-EU Parties to the Convention favour a mechanism that would ‘correspond only to the specificities of the EU legal system’.60 Translated to the nature of modifications to the ECHR in terms of procedure, the principle allows only as many changes to the procedure before the Court as absolutely necessary. To make the task in drafting a procedural mechanism even more demanding, there are also the applicants’ as well as the Court’s interests. In particular, the specific institutional characteristics of the EU should be incorporated in the mechanism in a way that recognises competences of the Court.61 From the applicant’s point of view, the procedural tool should facilitate the applicant’s access to justice or at least it should not make it more difficult. If the applicant was not able to reach justice because of the complexity or length of the new procedural mechanism, the accession would not bring about any progress for human rights protection in Europe. 5. The Co-Respondent Mechanism in the Draft Accession Agreement Although the Draft Accession Agreement was found incompatible with EU law, this part of the paper still looks at how the draft envisaged the corespondent mechanism. The mechanism was deemed incompatible only in part in which it did not preserve the specific characteristics of the EU and EU law.62 The CJEU’s Opinion did not dispute the core of the co-respondent mechanism as such, namely the new procedural solution of how to 57 58 59 60

Polakiewicz, ‘EU law and the ECHR’ (n 43) 19. Johansen, ‘The European Union’s Accession to the ECHR’ (n 38) 14. Cf. Preamble to the Draft Accession Agreement (n 3). Jana Kralova, ‘Comments on the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms’ (2011) 2 Czech Yearbook of International Law 127, 142. 61 Ritleng, ‘The accession of the European Union’ (n 54) 4. 62 Opinion 2/13 (n 2) para 258.

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have both the EU and its Member States present as parties to the case before the Court. Exceptions to the mechanism’s functioning were the ones in principle unacceptable for the CJEU. One can thus expect that any amendments aimed at bringing the co-respondent mechanism in line with EU law will build on the existing proposal. Especially, since the criticism on the flawed sections of the co-respondent mechanism had been invoked by the academia and the Advocate General63 already before the CJEU issued its negative Opinion. With regards to modifications to the text of the ECHR, the heading of Art. 36 was to be amended by adding the words ‘and co-respondent’ to the ‘Third party intervention’ clause.64 Changes to Art. 36 established that the co-respondent would have to be a party to the case, which was to be the most important distinction in relation to third party intervention. In addition, the participation of a co-respondent in the proceedings should not have any impact on the assessment of the application’s admissibility.65 On the contrary, it should prevent the application directed against the author of the implemented act in case of EU secondary legislation from being declared inadmissible ratione personae.66 As the intertwined legal orders of the EU and its Member States render it too complex for the individual applicant to identify the correct respondent, the wrong decision for the respondent could be remedied without declaring the complaint inadmissible.67 As a result, the applicant would not need to exhaust domestic remedies in the co-respondent’s legal order. This burden would fall from the applicant’s shoulders, which is in principle a favourable solution from the individual’s human rights protection perspective. Another crucial provision for the effectiveness of the mechanism was Art. 1(4) of the Draft Accession Agreement which confirmed that any implementing activity of the State with regards to EU law would still be attributed (possibly with the EU acting as a co-respondent) to the Member State, regardless of the obligatory nature of the respective activity. The

63 64 65 66 67

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View of Advocate General Kokott relating to Opinion 2/13, EU:C:2014:2475. Draft Accession Agreement (n 3) Art. 3(1). Ibid. Kralova, ‘Comments on the Draft Agreement’ (n 59) 132. Draft Explanatory Report (n 3) para 40; Maarten den Heijer and André Nollkaemper (eds), ‘A New Framework for Allocating International Responsibility: the EU Accession to the European Convention on Human Rights’ (2014) SHARES Briefing Paper, 12.

The Co-Respondent Mechanism before the European Court of Human Rights

provision was intended to preclude the situation where the Member State would try to escape responsibility for a violation by saying it had only fulfilled obligations imposed to it by EU law and where the EU would not join as a co-respondent, and nobody could be held responsible. If this kind of defence were allowed, the Court would also necessarily need to interpret the exact division of competences and penetrate the autonomy of EU law to assess such defence.68 5.1 When Should the Mechanism Apply? 5.1.1 EU as a Co-Respondent If an application was directed against an EU member state, the EU could join the proceedings as a co-respondent. It would do so, if the alleged violation raised a question of a provision of EU law (primary or secondary) and the violation could have been avoided only by disregarding an obligation under EU law.69 The EU’s participation as a co-respondent would be limited to cases of the so-called direct implementation which gives no room for manoeuvre to the Member State to avoid the violation of ECHR by its own implementation without breaching EU law.70 As a Member State does not control secondary law instruments, it cannot change the contentious legal basis of the violation. The same reasoning could apply to situations in which the alleged violation concerned the EU Treaties (primary law) but the application was to be directed against the Member State(s) only. They are the ones who could change the law in that case, but ‘EU institutions are also involved in the elaboration and adoption of primary EU law.’71 In cases of indirect implementation where Member States have the discretion to avoid the violation within the EU’s legal framework, the co-re-

68 Tobias Lock, ‘End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR’ (2012) 31 Yearbook of European Law 162, 165. 69 Cf. Draft Accession Agreement (n 3) Art. 3(2). 70 An example of such a case would be Bosphorus (n 21). See Thomas Streinz, ‘Avoiding an Odyssey – The EU’s Accession to the ECHR’ (Verfassungsblog, 30 September 2013) accessed 15 September 2014. 71 Kralova, ‘Comments on the Draft Agreement’ (n 59) 133.

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spondent mechanism would not apply.72 There is no need for the EU to be held responsible for a violation in cases where the State has enough freedom to follow obligations imposed by EU law but still implement them in a way that is compatible with the Convention provisions. Likewise, conformity with the ECHR in these kind of cases can be achieved without changing EU law, so the enforceability of the judgment is not affected.73 If it wished to explain its legal framework in cases of indirect implementation, the EU could still intervene as a third party on the side of the Member State. 5.1.2 EU Member State(s) as a Co-Respondent If an application was directed against the EU, its Member States could become co-respondents to the proceedings. They would do so, if the alleged violation of the ECHR called into question the compatibility with the provision of EU primary law, notably, if that violation could have been avoided only by disregarding an obligation under primary law.74 Member States should, and only then they should, join in as co-respondents because the EU as an entity with its institutions separated from Member States cannot itself change the rules of primary law. Contrarily, Member States are the only ones that can actually change the Treaties and shall have the possibility to defend ‘their law’ as well.75 Along with the co-respondent mechanism, which was intended for cases involving the EU and its Member State(s) at the same time, the EU could still be party to the procedure as a sole respondent. In cases where the EU’s action affected individual’s situation directly, the EU would be treated as like any other party to the Convention. If the applicant exhausted domestic remedies before the EU courts, he could lodge an application directly against the EU.76 The EU would thereby remain the only respon-

72 Example of such a case would be M.S.S. v Belgium and Greece App no. 30696/09 (Court, 21 January 2011). 73 Streinz, ‘Avoiding an Odyssey’ (n 69). . 74 Draft Accession Agreement (n 3) Art. 3(3). 75 Streinz, ‘Avoiding an Odyssey’ (n 69). 76 Ibid.

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dent responsible for its acts to be in line with the ECHR, and the co-respondent mechanism would not apply.77 5.2 Triggering the Mechanism The Draft Accession Agreement envisaged two options how a party could become the co-respondent.78 First, a High Contracting Party could accept the Court’s invitation to join the proceedings as a co-respondent. Second, the Party itself could request to become a co-respondent, which would have to be followed by the Court granting such request. The underlying idea of this approach was that no High Contracting Party not named in the original application could be compelled against its will to become a co-respondent.79 If the Party itself filed a request to become the co-respondent, the Court would have to assess whether it was plausible that conditions to join the proceedings as a co-respondent (under Art. 3(2) or Art. 3(3)) alongside the addressee of the application had been met.80 The term ‘plausible’ was meant to be of utmost importance because it supposedly limited the possible actions of the Court in this respect.81 Notably, the incompatibility with EU law provisions would need to be only plausible for the Court to decide whether to invite or grant the request. Thus, when responding to such request, the Court was not expected to engage in a detailed assessment of conditions for joining the proceedings but only to accept the arguments presented by the EU and its Member States.82 The triggering of the mechanism would in fact remain in the hands of the co-respondent itself, while the Court’s decision about a reasoned request by the parties concerned was to have procedural character.83 Evidently, the voluntary nature of the mechanism and the limited role of the Court both served the preservation of the Union’s legal autonomy. Be

77 78 79 80 81 82

Ibid. Draft Accession Agreement (n 3) Art. 3(5). Draft Explanatory Report (n 3) para 53. Ibid. Ibid para 55. Ritleng, ‘The accession of the European Union’ (n 59) 13. See also Paul P Craig, ‘EU Accession to the ECHR: Competence, Procedure and Substance’ (2013) 36 Fordham International Law Journal 1115, 1123. 83 Kralova, ‘Comments on the Draft Agreement’ (n 59) 139.

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that as it may, the fact that the Court was still to play a role in triggering the mechanism, although a limited one, was a deal-breaker for the CJEU. In this context, the prior involvement mechanism, another procedural novelty to the Convention system, was intended to complement the co-respondent mechanism. When the co-respondent was to be a party fully bound by the Court’s judgment, the applicant would not need to exhaust all domestic remedies in its legal order. In any event, this would be nearly impossible to do if the Member States joined the proceedings as co-respondents with their different legal orders. Thus, in exchange for the absence of the exhaustion of domestic remedies requirement, the prior involvement mechanism was to give the CJEU the possibility to exercise the control of conformity of an EU act with the Convention before external control by the Court would take place.84 Underpinned by the ‘the considerations of subsidiarity and the specific characteristics of Union law’,85 the mechanism would give the CJEU an opportunity to assess the compatibility of relevant EU law with the ECHR in proceedings with the EU as a corespondent if it had not been given such opportunity before.86 Even if drafted with good intentions, the prior involvement mechanism feels like an unfinished project. Notably, it was not set up in a way that would ensure that the EU was to be informed properly of cases pending before the Court.87 Furthermore, in the case of secondary law the procedure with the CJEU was to be limited in scope to questions of validity.88 5.2.1 Change of Status According to the draft accession agreement, if an application was directed against and notified to the European Union and one or more of its Member States, the status of any respondent could be changed to the one of a corespondent.89 Respondents would be able to request the Court to grant them co-respondent status or the Court could invite them to do so. In this

84 See Streinz, ‘Avoiding an Odyssey’ (n 69). See also Kralova, ‘Comments on the Draft Agreement’ (n 59) 137. 85 Polakiewicz, ‘EU law and the ECHR’ (n 43) 21. 86 Draft Accession Agreement (n 3) Art. 3(6). 87 Ibid. 88 Opinion 2/13 (n 2) paras 236–248. 89 Draft Accession Agreement (n 3) Art. 3(4).

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respect, the Court’s role was to be limited to considering the reasons stated by the parties concerned in their request for the change of status.90 The request would be justified if the respondent was responsible only for the legal basis of an act or omission which had, according to the applicant’s complaint, caused the violation.91 Again, the plausibility criterion was expected to prevent the Court from carrying out thorough analysis on the matter and thus opening ‘Pandora’s box,’ which is the EU’s internal legal order. In light of the autonomy of the EU’s legal order, the Court’s role in assessing the criteria for changing the status, however limited, still created the possibility for the Court to interfere with the division of powers between the EU and its Member States. 5.3 Joint Responsibility If the Court found a violation of the Convention in a case where the corespondent mechanism was to be used, the joint responsibility of the respondent and co-respondent would be the common rule.92 Otherwise, if it was able to attribute responsibility in a way that reflected the impact on the violation of each of the EU Member States, the Court would necessarily have to discuss the role of a respondent and co-respondent in violation of the Convention under EU law. This could infringe upon the exclusive powers of the CJEU to deal with division of competences between the EU and its Member States.93 Notwithstanding the underlying idea of the joint responsibility approach, the Court was still expected to have the ultimate competence to decide on responsibility as an important part of its judicial autonomy.94 It could allocate responsibility for respective violations distinctively between the EU and its Member State(s) or even to only one of them.95 On the other hand, any deviation from the general rule on joint responsibility could only be based on reasons given by the parties to the procedure. The Court

90 91 92 93

See Draft Explanatory Report (n 3) paras 56–58. Ibid para 56. Draft Accession Agreement (n 3) Art. 3(7). Johansen, ‘The European Union’s Accession to the ECHR’ (n 38) 114. See also Lock, ‘Walking on a Tightrope’ (n 52) 19. 94 See SHARES Briefing Paper (n 66) 8. 95 Draft Accession Agreement (n 3) Art. 3(7).

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was expected only to accept the parties’ arguments. In conclusion, the role of the Court was again to be limited in order to prevent potential interferences. As drafted, joint responsibility was not meant only to assure accountability and provide legal basis for enforcement of the judgment but also to render it unnecessary to decide on the right ‘percentage’ of contribution to the violation in each case. Yet, since leaving the door for the deviation from the common rule of joint responsibility opened represents risk for the Court’s interference with the EU’s internal legal order (division of powers between the EU and its Member States), the CJEU could not have reacted differently than to have declared it incompatible with EU law.96 5.4 Internal Rules as a Next Step As mentioned above, the Draft Accession Agreement substantially limited the role of the Court to preserve the autonomy of the EU’s legal order. The Court was not to be able to address some matters that are important for the effective protection of Convention rights and fairness of the outcome. In consequence, further binding EU internal rules would have to be put in place to delimitate the co-respondent mechanism in a more concrete manner. To protect the EU’s autonomy but address the actual division of competences, the EU itself was to adopt legal rules on specific matters regarding the co-respondent mechanism,97 namely the procedure for activation of the mechanism, its implementation, and the enforcement of the Court’s judgment.98 The interest of either a Member State or the EU to determine how responsibility should ultimately be distributed between the Union and the Member States in each case,99 and consequently what kind of financial burden for compensation of the victim each party should take on its shoulders, would need to be addressed in a subsequent internal EU procedure. Furthermore, they would have to determine the mode in which the co-re-

96 Opinion 2/13 (n 2) paras 229–234. 97 Paul Gragl, ‘A giant leap for European Human Rights? The Final Agreement on the European Union’s accession to the European Convention on Human Rights’ (2014) 51(1) Common Market Law Review 13, 22. 98 Ibid 19. 99 Stavefeldt, ‘EU accession to the ECHR’ (n 51) 33.

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spondent mechanism could be triggered and the coordination between the parties involved during the proceedings before the Court, including an answer to the question who should represent Member States when they joined as a co-respondent, rules regarding the prior involvement of the CJEU, joint friendly settlements rules, and circumstances in which the EU should agree to the position.100 6. The Co-Respondent’s Mechanism’s Weaknesses The CJEU recognized some of the weaknesses of the co-respondent mechanism as flaws that were incompatible with the Treaties. This part of the paper addresses those points, as well as other mechanism’s controversies that were not specifically discussed by the CJEU, but should be addressed in the future. 6.1 Voluntary Nature According to the Draft Accession Agreement, the co-respondent could not be forced to join the proceedings, which meant that the decision on the attribution of responsibility was to depend solely on its willingness to join. The voluntary nature of the co-respondent mechanism has been recognized as its most serious drawback. The first group of critics is focused on the mechanism’s voluntary character as such, generally arguing that the decision about joining the procedure should not lie with the co-respondent

100 Council of the European Union, Note on the Accession of the European Union to the European Convention for the protection of human rights and fundamental freedoms (ECHR) from Presidency to Council, 8915/12, Annex II, 18 April 2012.

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but with somebody else (either the original respondent101 or the Court102). Their arguments are based on the idea that giving the potential ‘perpetrator’ the possibility to decide on its own prosecution and potential accountability for violation is not in accordance with the notion of a fair procedure.103 It goes without saying that if there were no additional safeguards that the co-respondent was to accept the invitation or ask to join the procedure itself when the conditions triggering the mechanism were met, the voluntary nature could call into question the aim of the accession as such and run counter to the very purpose of creating the co-respondent mechanism.104 To mitigate the danger that the EU ‘would simply choose not to join proceedings for reasons of convenience (political or other),’ the EU was to adopt a unilateral declaration and thus provide some reassurance in this respect.105 Another reassuring factor that the parties would use the co-respondent mechanism for the purpose it was created for, is the principle of sincere cooperation enshrined in Art. 4(3) TEU. After the Court’s communication of a case to a Member State, the duty of sincere cooperation could be the basis for establishing the Member State’s obligation to then com-

101 See Lock, ‘Accession of the EU to the ECHR’ (n 21) 27. The author argues that the co-respondent should only join the proceedings at the request of the original respondent. Cf. Doblhoff-Dier and Kusmierczyk, ‘Present and Future Relations’ (n 8) 366. This modality would make the interpretation of EU law and the exact assessment of the responsibilities under the EU primary law by the Court obsolete. 102 See Giorgio Gaja, ‘The Co-Respondent Mechanisms According to the Draft Agreement for the Accession of the EU to the ECHR’, (2013) 2(1) ESIL Reflections 5. The author suggests that the Court should be the one who identifies when the EU is responsible. This would be more consistent with what is required by Protocol No. 8 to the Treaties than the Art. 3(7) of the Draft Accession Agreement. 103 Stavefeldt, ‘EU accession to the ECHR’ (n 51) 29. 104 According to the Draft Explanatory Report (n 3) para 1, the objective of the accession was to avoid gaps in the participation, accountability and enforceability in the Convention system. Protocol (No. 8) relating to Art. 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (n 54) Art. 1(b) suggested the aim of the mechanism was to assure the application was addressed to the appropriate addressee. 105 See Draft declaration by the European Union to be made at the time of signature of the Accession Agreement, Annex II (n 3); Streinz, ‘Avoiding an Odyssey’ (n 69).

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municate relevant cases to the European Commission. If it deemed it appropriate, the Commission could take further necessary steps to activate the co-respondent mechanism.106 The CJEU made a clear requirement for a procedure that would ensure that all cases pending before the Court were fully and systematically communicated to the competent EU institution.107 Having regard to the foregoing, any future negotiations will need to provide for additional arrangements in order to formalize the way the EU is to be informed of the relevant pending cases before the Court. These are not questions that can be left aside for the talks after accession because they go to the core of the co-respondent mechanism and its role in the Convention system. Indeed, any EU’s behaviour that undermined the functioning of the human rights protection system before the Court would go contrary to all expectations and to the EU’s endeavours to follow through with the accession.108 Nevertheless, leaving the notions regarding the EU’s participation in the proceedings before the Court too vague in any future accession draft, would risk another rejection from the CJEU. 6.2 Preservation of the EU’s Autonomy The second group of critics regarding the voluntary character of the mechanism sheds light on the margin of discretion that was to be left in the hands of the Court. The compulsory nature of the mechanism, which would give the Court the power to oblige the co-respondent to join the proceedings, was never seriously considered because of the autonomy requirement. Yet, as seen above, triggering the mechanism was to depend on the Court’s assessment whether it was plausible that the case involved questions relevant under EU law. Already before the CJEU issued its Opinion, the fact that the final decision on the participation of the co-respondent in the case of request from a High Contracting Party would be made by the Court, cast doubt on the successful execution of the autonomy preservation principle.109 While the ‘plausibility’ criteria, as envisaged in the draft, took away the possibility of an in-depth discussion and, thus, interference with the re-

106 107 108 109

Ibid Streinz. Opinion 2/13 (n 2) para 241. Gragl, ‘A giant leap’ (n 96) 31 f. Cf. Ritleng, ‘The accession of the European Union’ (n 54) 13.

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spective competences of the Member States and of the EU, it did not exclude a prima facie consideration whether the complaint had been correctly addressed.110 To be able to assess whether it appeared that the respondent could only have avoided a violation of the Convention by violating an obligation under EU law, the Court would have to determine the content of the obligation in question and examine whether EU law gave the Member State discretion in its implementation.111 The tension with the autonomy principle would arise if the co-respondent was given the possibility (by invitation) to join the proceedings or the Court denied a party the right to join as a co-respondent.112 The mechanism cannot leave the doors ajar for the Court to look at the distribution of competences between the EU and its Member States when deciding on the invitation or when denying the right to join,113 and preserve the EU’s legal autonomy. In this connection, the CJEU emphasised that under all circumstances the EU and Member States were the ones that had to ‘remain free to assess whether material conditions for applying the co-respondent mechanism are met’.114 On a similar matter, joint responsibility concept which was initially meant to unburden the Court from the task of assessing the distribution of competences between the EU and its Member States,115 did not rule out that the Court would allocate responsibility differently in the individual case if it seemed thus appropriate.116 Even though allocation of responsibility was not foreseen as a general rule, the Court’s actions were not limited to an extent that would completely prevent it from interpreting the Union’s internal division of competences. The CJEU refused to agree to giving the Court any competence in allocation of responsibility for ECHR violations; even if this was already limited to just confirming an agreement between the EU and its Member States on the apportionment of responsibility.117

110 111 112 113 114 115 116 117

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Ibid 10. Lock, ‘Walking on a Tightrope’ (n 57) 1041. Stavefeldt, ‘EU accession to the ECHR’ (n 52) 30. The Court could also decide to terminate the participation of the co-respondent. See Draft Explanatory Report (n 3) para 59. Opinion 2/13 (n 2) para 229. Draft Explanatory Report (n 3) para 62. Ibid.. Opinion 2/13 (n 2) para 234.

The Co-Respondent Mechanism before the European Court of Human Rights

6.3 Effective Protection of Human Rights Another point of critique, which is directed against joint responsibility, comes from human rights organisations and National Human Rights Institutions (NHRIs). They share the view that the decision on allocation of responsibility in co-respondent cases should be made by the Court itself.118 This being the case would arguably enable the NHRIs to assist more effectively in the domestic implementation of the judgment and allow for swift redress for the applicant in relation to a precisely apportioned just satisfaction.119 However, it is difficult to imagine how a demand for the Court to apportion the responsibility as a general rule could ever be acceptable for the CJEU and its task to preserve the autonomy of EU law. On a different note, the over-complexity of the mechanism could lead to an unfavourable position of the applicant. However, at least in the phases triggering the mechanism and addressing the application to the ‘right’ party, the co-respondent mechanism has favoured the applicant’s position. For example, the applicant would not need to exhaust all domestic remedies for the co-respondent mechanism to be triggered. Without the co-respondent mechanism it would be close to impossible for the applicant to ‘bring an admissible application jointly against the author of the alleged violation of the Convention and the author of the act that forms the legal basis for it’.120 The mechanism enabled the applicant to start proceedings before the Court without having to identify the correct respondent in each case.121 The things could get more complicated once the co-respondent mechanism was actually tob e triggered. The prior involvement mechanism, for instance, added an additional layer of complexity to the procedure which could lead to further delays in proceedings before the Court.122 These ‘warnings’ shift the discussion on the changes to the Convention

118 Stavefeldt, ‘EU accession to the ECHR’ (n 51) 33; Lock, ‘Walking on a Tightrope’ (n 52) 1045. 119 Ibid. 120 Kralova, ‘Comments on the Draft Agreement’ (n 59) 139. 121 See, eg Florian Knerr, ‘Harmonizing Europe’s Human Rights System: The European Union’s Accession to the European Convention on Human Rights’ (2012) 53 Seoul Law Journal 713, 726; SHARES Briefing Paper (n 66) 14. 122 See, eg Groussot et al (n 35) 16; Doblhoff-Dier and Kusmierczyk, ‘Present and Future Relations’ (n 8) 359: the authors question whether it is really in the interest of the applicant to wait for the CJEU’s non-binding decision that would lead to a prolonging of the proceedings.

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system to the individual applicant. Although they were not examined by the CJEU, they need to be taken into account in negotiations if the co-respondent mechanism is to contribute and not hinder effective protection of human rights before the Court. 7. Conclusion At the end of the day the Draft Accession Agreement was a solution resulting from compromise. Indeed, it was not flawless considering any of the guiding principles discussed initially. Nonetheless, it satisfied political demands, the applicant’s position on the effective protection of human rights and the requirement for the preservation of the autonomy of the EU’s legal order just enough to be acceptable for all the stakeholders of the negotiation process. Ideally, the CJEU would have followed the Advocate General Kokott’s recommendations and allowed for the accession subject to a number of conditions regarding the co-respondent mechanism. The CJEU cannot, however, be considered a scapegoat for everything that went wrong with the agreement. Essentially all procedural objections to the co-respondent mechanism were highly controversial and discussed in depth before the CJEU issued the negative Opinion. Ultimately, the co-respondent mechanism remains a promising concept that needs additional work. As for the CJEU’s objections, amending the mechanism accordingly does not seem too challenging for future negotiators. There is in principle a checklist of amendments to the accession agreement that need to be adopted to make sure the accession would not violate EU law. As the autonomy of the EU’s legal order needs to be fully respected, any compromise which would weigh other stakeholders’ interests against this absolute requirement will not be tolerated. In practical terms this means that any future version of co-respondent mechanism will have to limit the Court’s judicial competences even further. The price of the EU’s accession to the Convention seems to be even higher than expected. Hopefully, it is not too high for the current Convention Parties to follow through with the process.

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The Accession of the European Union to the ECHR and the Inter-State Application under Article 33 ECHR Isabella Risini

Abstract This contribution argues that a future accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention, ECHR, European Convention on Human Rights) should not lead to an exclusion of inter-State applications between the currently 28 member States of the European Union before the European Court of Human Rights in Strasbourg under Article 33 ECHR. I. Introduction In its Opinion 2/13 of December 20141, the European Court of Justice blocked the projected accession of the European Union (EU) to the Convention under the then-negotiated conditions.2 The reasons for the rejection of the 2013 draft negotiation agreement by the Luxembourg Court are manifold.3 This contribution revisits Opinion 2/13 from the angle of the inter-State application under Article 33 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).4 The Euro-

1 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454; the opinion should be read together with the view of GA J Kokott, 13 June 2014, ECLI:EU:C:2014:2475. 2 Appendix I-V of document 47+1(2013)008rev 2 of the Council of Europe concerning the accession negotiations of 10 June 2013. 3 For a detailed discussion see C Tomuschat, ‘Der Streit um die Auslegungshoheit: Die Autonomie der EU als Heiliger Grahl/das EuGH-Gutachten gegen den Beitritt der EU zur EMRK’ (2015) 42 EuGRZ 133, 137; Daniel Halberstam, ‘It’s the autonomy, stupid!’ (2015) 16 German Law Journal 106, 111. 4 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5 .

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pean Court of Justice has postulated the ‘express exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR over disputes between Member States or between Member States and the EU in relation to the application of the ECHR within the scope ratione materiae of EU law’5. It is likely that in the context of new negotiations, the exclusion of the inter-State application under the Convention is the line of least resistance. This contribution argues for a differentiated solution, which preserves the possibility of the inter-State application under Article 33 ECHR for those States which are both EU members and High Contracting Parties to the ECHR. In other words, the accession of the European Union to the ECHR should not come at the price that inter-State applications between EU member States in Strasbourg become inadmissible. II. The Inter-State Application under Article 33 ECHR Article 33 ECHR stipulates that ‘[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.’ The inter-State application under the ECHR allows for the protection of individuals in a similar manner as by diplomatic protection.6 The range of potential beneficiaries includes not only nationals of the applicant state but encompasses all individuals under the jurisdiction of the respondent state. Besides to the possibility to protect individuals, the inter-State application can be used to address systemic issues in member states of the ECHR.7

5 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para. 213. 6 I Risini, ‘The Inter-State Application Under the European Convention on Human Rights: More Than Diplomatic Protection’, in N Weiß, J-M Thouvenin (eds), The Influence of Human Rights on International Law (2015) 69. See also: M Breuer, ‘Das Rechtsfolgenregime des diplomatischen Schutzes unter dem Einfluß der Menschenrechte’, (2017) 55 Archiv des Völkerrechts, 324 ff. 7 An example would be the installation of a military regime in another ECHR member state, as happened in Denmark, Norway, Sweden and the Netherlands v. Greece (I) App nos 3321/67, 3322/67, 3323/67, 3344/67, Yb 11, 691ff, report in Yb 12 II, ‚The Greek Case’; France, Norway, Denmark, Sweden and the Netherlands v. Turkey, nos. 9940-44/82 (friendly settlement regarding applications introduced in July 1982, report of the Commission of 7 December 1985), DR 44, 31et seq.

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Thus, member states can address administrative practices as well as legislation in contravention of the Convention without a victim requirement.8 Admissibility requirements for inter-State applications are relatively low in comparison to individual applications under Article 34 ECHR. The only limitations are the six-month rule and the requirement to exhaust domestic remedies under Article 35 § 1 ECHR. Other admissibility requirements only apply to individual applications under Article 34 ECHR. The requirement to exhaust domestic remedies in inter-State applications is dispensed with if systemic issues are brought up.9 Overall, about 20 inter-State applications were lodged under the ECHR.10 A multitude of sets of inter-State applications are before the Court as of 2018. Since 2006, Georgia has lodged three applications against Russia, two of whom are still pending before the Court.11 The events in Crimea and Eastern Ukraine since February 2014 gave rise to several Ukrainian inter-State applications against Russia.12 In December 2014, Ireland requested the reopening of the case of Ireland v United 8 See also I Risini, The Inter-State Application under the European Convention on Human Rights, Between Collective Enforcement of Human Rights and Dispute Settlement (Brill Nijhoff 2018). 9 Georgia v Russia (I) App no 13255/07 (3 July 2014) para 122 f; for further background C Amerasinghe, ‘The rule of exhaustion of domestic remedies in the framework of international systems for the protection of human rights’ (1968) 28 HJIL 257, 272. 10 For a list of inter-State cases between 1956 and 1998 see E Bates, The Evolution of the European Convention on Human Rights (Oxford University Press 2010) appendix 3, 525. 11 In the Georgia v Russia, no 13255/07 (I) case, the Grand Chamber issued a judgment on the merits on 3 July 2014; the case is pending with regard to the question of just satisfaction under Article 41 ECHR; pending is also Georgia v Russia (II), no 38263/08. 12 Ukraine v Russia (I), no 20958/14; Ukraine v Russia (II), no 43800/14; Ukraine v Russia (III), no 49537/14, (the third case was struck off the list of the Court’s cases in September 2015, press release ECHR 296 (2015), 1 October 2015); Ukraine v Russia (IV), no 42410/15; on 9 February 2016 the Court decided, with a view of making the processing of the case more efficient, to divide the first inter-State application according to geographical criteria - all the complaints related to the events in Crimea up to September 2014 are currently registered under the case number 20958/14; the complaints concerning the events in Eastern Ukraine up to September 2014 are now registered under the Ukraine v Russia (V), no 8019/16; the same rule was applied in respect of Ukraine v Russia (IV), no 42410/15. Following the Court’s decision of 25 November 2016 all the complaints related to the events in Crimea from September 2014 onwards are currently registered under the

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Kingdom, which was before the Convention organs in the 1970 s.13 In addition, Slovenia lodged an inter-State application against Croatia in September 2016.14 Especially the last two sets of cases show that there is a need for the possibility to lodge inter-State applications between EU member States. III. Two Constellations Distinguished The first constellation concerns the EU in the role of an applicant against EU member States in proceedings under Article 33 ECHR. The EU itself has, as of now, no competence for the supervision of human rights standards in EU member States. Therefore, the EU primary law as it stands today does not support the EU in the role of a potential applicant in interState (inter-Party) proceedings under Article 33 ECHR. The second part of the considerations offered here concerns the constellation of EU member States as parties in inter-State proceedings under the ECHR. It is argued that the autonomy of EU law as enshrined in Article 344 TFEU15 should not bar or substantially restrict inter-State applications between EU member States under the European Convention of Human Rights. This line of arguments rests on a weighing process: the valuable functions of the collective enforcement of human rights the inter-State application offers16 outweigh the eventual curtailment of the autonomy of the Luxemburg Court.

13 14

15 16

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case no 42410/15, Ukraine v. Russia (IV); the complaints concerning the events in Eastern Ukraine from September 2014 are now registered under the case no 70856/16, Ukraine v Russia (VI). Ireland v United Kingdom, 5310/71, communication of 22 March 2016; see also P Leach, ‘Ireland v. UK: Revisiting the Treatment of the Hooded Men’, JURIST, 6 December 2014, jurist.org/student/2014/12/Philip-Leach-Hooded-Men.php. See Press Release ECHR 340 (2016) of 20 October 2016; the case is registered as Slovenia v Croatia, no 54155/16; J Hojink, ‘Slovenia v. Croatia: The First EU Inter-State Case before the ECtHR’, EJIL:Talk!, 17 October 2016, www.ejiltalk.org/ slovenia-v-croatia-the-first-eu-inter-state-case-before-the-ecthr/. Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326, 47. HC Krüger and J Polakiewicz, ‘Vorschläge für ein kohärentes System des Menschenrechtsschutzes in Europa’ (2001) 28 EuGRZ 92, 104.

The Accession of the European Union to the ECHR and the Inter-State Application

1. Constellation 1: The EU as Possible Party in Inter-Party Proceedings under Article 33 ECHR In the negotiated accession agreement of 2013, the possibility of applications between the EU and member States of the EU was not excluded. The accession of the EU to the ECHR with the possibility of inter-Party applications would have allowed the EU to monitor and judicially address any alleged breach of the ECHR in Strasbourg via Article 33 ECHR. The EU has no competence which would correspond to these procedural powers. The relationship between the EU and its member states is determined by the principle of conferral, as codified in Articles 4 (1) and 5 TEU. The mandate in Article 6 (2) TEU for the European Union to accede to the ECHR reemphasizes this working order.17 a. The Charter of Fundamental Rights: a Yardstick, but no Competence for the EU The Charter of Fundamental Rights (CFR)18 became positive primary law when the Treaty of Lisbon entered into force on 1 December 2009. The recognition of human rights on the level of European integration has a jurisprudential root.19 Conceptually, European human rights were developed as a tool to compensate for the supremacy of EU law over national law, including national human rights law, in order to ensure that the EU and its predecessors would respect human rights the same way national authorities have to.20 Article 6 (1) TEU states that ‘[t]he provisions of the Charter

17 View of advocate general J Kokott delivered on 13 June 2014 in Opinion 2/13 (n 1), with further references to the first opinion of the Court on the subject of accession of the EU to the ECHR, 2/94 ECR I – 1783 of 28 March 1996. 18 Charter of Fundamental Rights of the European Union [2012] OJ C 326, 391-407. 19 Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; see also J Weiler, The Transformation of Europe, The Yale Law Journal 100 (1991) 2403, 2417. [Case closed] JP Terhechte, Konstitutionalisierung und Normativität der europäischen Grundrechte (Springer 2013) 12. 20 V Reding, ‘Überlegungen zu Europas Grundrechtesystem’ in S LeutheusserSchnarrenberger (ed), Vom Recht auf Menschenwürde – 60 Jahre EMRK (Mohr Siebeck 2013) 63, 66.

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shall not extend in any way the competences of the Union as defined in the Treaties.’ Article 51 CFR limits the scope of application of the CFR to the EU itself. It applies to member states ‘only if they are implementing EU law’21. The Court has been criticized for the broad interpretation of the clause because the CFR was not conceived as general yardstick for the member states.22 b. Article 2 TEU: A Value Platform, but no Competence Human rights crept into the wording of Article 2 TEU (ex-Article 6) with the Treaty of Amsterdam as ‘principles’ in 1997.23 Subsequently, some of the principles contained in ex-Article 6 TEU, including the respect for human rights, were converted into values with the Treaty of Lisbon. 24 As the eastern enlargement of the EU was looming, the principles in ex-Article 6 TEU were made a requirement for EU accession. As the Union grew, fears grew that new members would not live up to the standards which purportedly prevailed in the older member states.25 The scope and depth of scrutiny for candidate counties had no equivalent within the EU’s relation with its member states.26 From a legal perspective, the potential effect of Article 2 TEU in conjunction with the corresponding prevention and sanction mechanism of

21 See CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para 171, with reference to Case C-617/10 Åklagaren v Hans Åkerberg Fransson (7 May 2013, ECLI:EU:C:2013:105); J Kühling, ‘Fundamental Rights’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law (2nd ed, Hart, CH Beck, Nomos 2010) 479, 496 f. 22 A von Bogdandy and others, ‘Ein Rettungsschirm für europäische Grundrechte’ (2012) 72 HJIL 46, 55. 23 K Serini, Sanktionen der Europäischen Union bei Verstoß eines Mitgliedsstaates gegen das Demokratie- oder Rechtsstaatsprinzip (Duncker & Humblot 2009) 18. 24 U di Fabio, ‘Grundrechte als Wertordnung’(2004) JZ 59, 1. 25 For the reform of the sanctioning mechanism in Art 7 TEU after the case of Austria F Schorkopf, Die Maßnahmen der XIV EU-Mitgliedsstaaten gegen Österreich (Springer 2001) ch IV, 99ff. 26 A Albi, ‘Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums’ (2009) ELJ 46, 47.

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Article 7 TEU is limited.27 This is due to the fact that Article 2 TEU does not contain a predefined legal yardstick.28 As Article 7 (2) TEU clarifies, it is reserved to the unanimous European Council to ‘determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2’. In line with Article 7 TEU, Article 269 of the TFEU provides an exception to the general rule of Article 19 TEU: the Luxemburg Court is barred from judicially reviewing the question whether or not a member state still fulfills the conditions for membership in the European Union. In the case of Article 2 TEU and the application of sanctions under Article 7 TEU, the Luxembourg Court is in fact barred from clarifying the contents of Article 2 TEU by judicial interpretation. The monopoly of interpretation with the Luxembourg Court is, in other areas, designed to avoid double standards and to preserve the EU legal order.29 Given that the Court is not entrusted with the interpretation of Article 2 TEU, the only attempt to approach the values was done in the wise persons report in the context of the Austrian case30, ironically, outside the framework of the procedure laid down by Articles 2 and 7 TEU. c. Result: No Room for the EU as Applicant in Proceedings under Article 33 ECHR Human rights are firmly anchored in EU primary law. As Article 6 (3) TEU clarifies, the ECHR’s substantive guarantees are part of EU primary law as general principles. Absent a competence of the European Union for human rights supervision of EU member States, the procedural possibilities of the inter-State/inter-Party application under Article 33

27 I Risini, ‘Eine kritische Analyse der Werte im europäischen Primärrecht: eine Rückbesinnung auf den nicht-universellen Grundsatz der Einzelermächtigung’, in S Plecha et al (eds), Rechtskultur und Globalisierung (Nomos 2017), 59 ff. 28 Similarly TP Holterhus and D Kornack, ‘Die Materielle Struktur der Unionsgrundwerte, Auslegung und Anwendung des Art. 2 EUV im Lichte aktueller Entwicklungen’ (2014) EuGRZ 41, 389, 399; K Serini (n 23) 21ff; U di Fabio (n 24) 1. 29 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para 201. 30 Report by M Ahtisaari, J Frowein and M Oreja, 8 September 2000 reprinted in F Schorkopf (n 25) 163 ff.

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ECHR should not be opened for the EU. Thus, regarding this constellation, the present contribution seconds the CJEU’s opinion 2/13. 2. Constellation 2: inter-State Applications between EU Member States The second constellation discussed in this contribution concerns EU member States and their right to lodge inter-State applications under the ECHR against each other. Under the current legal situation, the possibility of inter-State applications between EU member States is not excluded. In fact, two sets of applications are currently pending before the Strasbourg Court, namely between Ireland and the United Kingdom and between Slovenia and Croatia. It is argued here that it is worthwhile to preserve the possibility of such inter-State applications even after a possible accession of the European Union to the Convention. a. The Autonomy of the EU Legal Order threatened by the Inter-State application: Taking Stock According to Article 344 TFEU, ‘[m]ember States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.’ The provision can be understood as an expression of member states’ duty of loyalty under Article 4 (3) TEU.31 Art. 344 TFEU contains a prohibition addressed to EU member States to submit any dispute about the interpretation of the law, including the ECHR in a post accession scenario, to settlement by an entity other than the Luxembourg Court.32 The autonomy of the European legal order is an aspiration which is nurtured by the need of coherence and uniformity of EU law. The potential issue of Article 344 TFEU as an ob-

31 SO Johansen, ‘The Reinterpretation of TFEU Article 344 in Opinion 2/13 and its potential consequences’ (2015) 16 German Law Journal 169, 170. 32 W Obwexer, Der Beitritt der EU zur EMRK: Rechtsgrundlagen, Rechtsfragen und Rechtsfolgen (2012) EuR 115, 121.

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stacle for the EU’s accession to the ECHR was discussed in academia.33 The 2013 draft accession agreement avoided the matter.34 The Luxembourg Court’s statement in Opinion 2/13 that ‘the very existence of such a possibility (‘the possibility that the EU or Member States might submit an application to the ECtHR’35) undermined the requirement set out in Article 344 TFEU’36 seems to be an extreme interpretation of the norm. The EU legal order, with its wide-ranging competences in external relations, according to the interpretation in Opinion 2/13, would exclude the accession of the EU to an international treaty or a mixed agreement which comes with a dispute resolution mechanism. The Luxemburg Court goes on in para 210 to state that ‘Article 344 TFEU is specifically intended to preserve the exclusive nature of the procedure for settling those disputes within the EU, and in particular of the jurisdiction of the Court of Justice in that respect, and thus precluded any prior or subsequent external control.’37 These statements are not easy to reconcile with Article 6 TEU and its mandate for the EU to access the ECHR with the intention to expose the EU legal order to judicial review of the Strasbourg Court. b. The CEJU’s Proposition ‘ratione materiae’: A Chilling Effect for the Inter-State Application The CEJU’s proposition to exclude the inter-State application between EU member States ‘over disputes (…) in relation to the application of the ECHR within the scope ratione materiae of EU law’38 would factually ex-

33 E Vranes, ‘Die Staatenbeschwerde im Verhältnis von EGMR, internationalen Gerichten und EuGH’ (2014) 69 Zeitschrift für öffentliches Recht 257, 260, with further references. 34 Appendix V of document 47+1(2013)008rev 2 of the Council of Europe concerning the accession negotiations of 10 June 2013, which contains a ‘Draft explanatory report to the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms’10 June 2013, § 72. 35 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para 207. 36 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para. 208. 37 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454. 38 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para 213.

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clude a wide range of applications because EU law permeates as of today a large part of national legislation. Moreover, it would discourage States from lodging inter-State applications. Often, it is not clear where the ratione materiae scope of EU law ends. In addition, such a clause would require the Strasbourg Court to interpret EU law, which in turn, would be contrary to EU law. 39 c. Mechanisms in EU Law to Address Human Rights Issues The need for the inter-State application before the ECHR is not balanced out by the possibility of infringement proceedings under Articles 258 and 259 TFEU. The prevention and sanction mechanism of Article 7 TEU is likewise not a mechanism, which would balance out the loss of the interState application under the ECHR. aa) The Treaty Infringement Proceedings of Articles 258 and 259 TFEU One of the main judicial functions that the drafters of the EU treaties assigned to the Court was to settle disputes between member states.40 The EU’s founding idea was to prevent conflicts by fostering the interdependency of national economies in a manner that would remove material incentives for armed conflicts. 41 This pre-emptive philosophy permeates also the structure of the dispute settlement mechanism of the EU, which channels and monopolizes42 conflicts between member states to dispute resolution instead of direct confrontation. The Commission is the organ whose mandate is to neutralize interstate tensions and represents the common interest of the EU and its member states.

39 J Polakiewicz, ‘Accession to the European Convention on Human Rights (ECHR) – An insider’s view addressing one by one the CJEU’s objections in Opinion 2/13’ (2016) 36 HRLJ 10, 18. 40 T Björnsson, Y Shany, ‘The Court of Justice of the European Union’ in Y Shany (ed), Assessing the Effectiveness of International Courts (Oxford University Press 2014) 277, 281. 41 Ibid. 42 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para 201.

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The aim of a treaty infringement proceeding is not to sanction a member state, but to induce compliance with EU law. If the Court finds a violation, this finding is declaratory. The possibility to sanction non-compliance with a judgment of the Court under Article 260 TFEU was introduced with the Maastricht treaty.43 Under the EU treaties as they stand today, human rights issues can be addressed within treaty infringement proceedings as long as the conduct of the state is within the realm of EU law. The supervisory reach of Articles 258 and 259 TFEU is not limited to the TFEU, but extends to ‘the treaties’, including the values mentioned in Article 2 TEU as well as the CFR. Arguably, it is possible to address general and persistent infringements44 below the threshold of Article 7 TEU, within the treaty infringement proceedings.45 Even if the EU has no general mandate ‘to police gay rights in Ireland or minority rights in Corsica’46, infringement proceedings have been used to address issues with a human rights dimension: the situation in Hungary47, as well as the cases of France and other member states which tried to collectively expulse Roma in 2010 have been tackled with treaty infringement proceedings under Article 259 TFEU, or the threat of proceedings by the Commission.48 Under Article 258 TFEU, only few cases were litigated before the Court49. Very few interstate cases have a human rights dimension. One case worthwhile mentioning in this context is the action brought by the

43 L Prete and B Smulders, ‘The Coming of Age of Infringement Proceedings’ (2010) 47 CMLR 9, 49ff. 44 Pål Wennerås, ‘General and Persistent Infringements, Lump Sums and Penalty Payments’ (2006) 43 CMLR, 48. 45 D Murswiek, ‘Die heimliche Entwicklung des Unionsvertrages zur europäischen Oberverfassung – Zu den Konsequenzen der Auflösung der Säulenstruktur der Europäischen Union und der Erstreckung der Gerichtsbarkeit des EU-Gerichtshofes auf den EU-Vertrag’ (2009) 27 NvWZ 481, 482. 46 A von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights and the Core of the European Union’ (2000) 37 CMLR 1307. 47 Commission v Hungary, ECLI:EU:C:2012:687; M Dawson and E Muir, ‘Hungary and the Indirect Protection of EU Fundamental Rights and the Rule of Law’ (2013) 14 GLJ 1959, 2013. 48 M Dawson and E Muir, ‘Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma’ (2011) 48 CMLR 751. 49 France v United Kingdom, ECLI:EU:C:1979:225; Belgium v Spain,ECLI:EU:C:2000:244; Kingdom of Spain v United Kingdom ECLI:EU:C:2006:543; Hungary v Slovakia, ECLI:EU:C:2012:630.

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Kingdom of Spain against the United Kingdom.50 The protection of human rights was not the primary purpose of the case, but the right to vote, which underlies the case, is now enshrined also in Article 39 CFR. The 2006 judgment has to be seen as a follow up to the 1999 Matthews v United Kingdom case of the Grand Chamber of the European Court of Human Rights. 51 Article 7 TEU – Prevention and Sanction Mechanism The threshold for Article 7 TEU is a recurring or systemic issue concerning the values enumerated in Article 2 TEU.52 Unlike the treaty infringement proceedings, the mechanism is not a means to resolve individual or specific violations of fundamental rights. Article 7 TEU was introduced with the Treaty of Amsterdam, and amended by the Treaty of Nice. The dynamics of the Austrian case had its impact on the norm, even though or because the 14 acting member states did not follow the procedures laid down in (ex-)Article 7 TEU.53 Article 7 TEU is unique in European Union law is that it refers to fields where the EU does not have any competences. Beyond the scope of Article 51 CFR member states remain autonomous in fundamental rights protection as long as it can be presumed, or in the words of the Court of Justice, trusted, that they ensure a core of fundamental rights enshrined in the value platform of Article 2 TEU.54 However, if systemic violations occur, this presumption can be rebutted.55

50 Kingdom of Spain v United Kingdom ECLI:EU:C:2006:543. 51 Matthews v United Kingdom [GC], no 24833/94 ECHR 1999-I. 52 Communication from the Commission to the Council and the European Parliament of 15 October 2003 on Article 7 of the Treaty on European Union: Respect for and promotion of values on which the Union is based (COM(2003) 606 final). 53 JP Terhechte, Konstitutionalisierung und Normativität der europäischen Grundrechte (Springer 2013) 12; F Schorkopf (n 25); L Adamovich, ‘Juristische Aspekte der „Sanktionen“ der EU-14 und des „Weisenberichts“’ (2001) 28 EuGRZ 89. 54 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, paras 168, 191. 55 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para 192; A von Bogdandy and others, ‘Ein Rettungsschirm für europäische Grundrechte’ (2012) 72 HJIL 46, 49.

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d. Result: Inter-State Application’s Functions outweigh Interest in Preservation of Autonomy under Article 344 TFEU It is argued here that the possibility of EU member States to lodge interState applications against other EU member States before the Strasbourg Court should not be cut back in the context of a possible accession of the EU to the ECHR. Even if the inter-State application under the ECHR would curtail the autonomy of the EU legal order, it would be worthwhile to keep the inter-State application rather than to pursue the elusive goal of the preservation of the autonomy of the EU legal order. An accession of the EU to the ECHR which would weaken the level of protection of the ECHR in Europe would not be an undertaking worthwhile to pursue. The object and purpose of the mandate of the EU to access the ECHR in Article 6 TEU was not to weaken human rights protection in Europe, but to strengthen it. The weighing of options also should take into consideration that a possible accession has to be satisfactory for all parties involved in the accession agreement.56 A possible solution will also have to take into consideration the other High Contracting Parties to the ECHR which are not EU member States. To create a double standard within the ECHR, allowing for certain member States to use the inter-State application freely and to curtail the right for others, would stretch the benefit of the EU’s accession to the ECHR too far. IV. Conclusion: More, not less Human Rights Protection after the Accession The accession of the EU to the ECHR as projected in the draft agreement under scrutiny in Opinion 2/13 would have assigned the EU the procedural right under Article 33 ECHR to address any alleged breach of the ECHR in the EU member states. The Luxembourg Court found that an accession

56 Appendix V of document 47+1(2013)008rev 2 of the Council of Europe concerning the accession negotiations of 10 June 2013, which contains a ‘Draft explanatory report to the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms’10 June 2013, § 8; F Tulkens, ‘La protection des droits fondamentaux en Europe et l’adhesion de l’Union européenne à la Convention des droits de l’homme’ (2012) 1 Critical Quarterly for Legislation and Law 14, 20.

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under these conditions would affect the powers fixed by the Treaties.57 It emphasized that the EU is not a universally competent state; on the contrary, the concept of conferral of powers was reconfirmed.58 This contribution proposes, in line with the Luxembourg Court, that the European Union itself should not be vested with the right to initiate an application under Article 33 ECHR against EU Member States (an inter-Party application). The exclusion of the EU itself as a potential party in inter-State proceedings under the ECHR, however, does not logically entail the necessity to bar all EU member States to renounce to the possibility of inter-State applications under Article 33 ECHR, which they currently possess. Such an exclusion would deprive the ECHR of its dimension of collective guarantee for human rights in Europe. Even if the inter-State application affects the autonomy of the EU legal order, the inter-State application should be maintained.

57 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, para 201. 58 CJEU Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, paras 156, 165.

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The Procedural and Substantial Requirements of the European Union’s Accession to the European Convention of Human Rights and Fundamental Freedoms Stefan Lorenzmeier1

Abstract This article deals with the procedural and substantial requirements of the European Union’s accession to the European Convention of Human Rights and Fundamental Freedoms. The analysis of Art. 218 TFEU shows that the Accession Agreement will have the same status as other agreements concluded by the Union and will not lead to a constitutional shift or an implied treaty override. The special requirements for accession of the EU to the ECHR are due to political hesitations of the member states and do not change the system of the EU treaties. The substantial requirements laid down in Art. 6 TEU have to be brought in line by using the principles of harmonious interpretation and proportionality. The application of these principles will shine light on two parts of the provision governing accession under the EU Treaty and give them equal weight. I. Introduction The accession of the European Union (EU) to the European Convention of Human Rights (ECHR) is a project which has been a very long time in the making2 and which goes to the heart of the European Union‘s legal order

1 The sponsorship for the research has been provided by the Alexander von Humboldt Foundation in the framework of the Research Group Linkage Programme funded by the Federal Ministry of Education and Research. 2 The former EEC Commission made a bold proposal for accession in a memorandum in 1979 (Accession of the Communities to the European Convention on Human Rights: Commission Memorandum, Bulletin of the European Communities, Supplement 2/79, COM (79) final) and in 1996, the ECJ rejected the accession

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– to protect the fundamental freedoms of its citizens3. Regrettably, the European Court of Justice opined in its already famous4 Opinion 2/13 that the draft of the Accession Agreement is in breach of primary EU law and as such not compatible with the treaties5. Whether the accession will now be halted for a rather significant period of time is an issue for political debate and cannot be properly addressed in the course of this article, although it seems to be the case. Yet, as convincingly argued by legal scholars, the time for accession is rife and now it seems like there will be a long delay for this endeavor. According to Art. 47 TEU, the European Union in its capacity as an international organization possesses international legal personality6. It can conclude international agreements providing that the respective subject matter falls within the scope of its legislative competence7. This was achieved by Art. 6 (2) TEU, which states that the Union shall accede to the ECHR. Yet, the first sentence of this provision is subject to an important condition and, its second sentence requires that the accession shall not affect the Union’s competences, as defined in the treaties. The draft of the Accession Agreement has to adhere to all of these competing obligations8. Moreover, it has to be borne in mind that an international agreement, like the ECHR, will be binding on the EU institutions and the member states in accordance with Art. 216 (2) TFEU.9 It will have a fundamental impact on the protection of human rights in the European Union and its member states. Dogmatically, the European Union applies a monistic sys-

3 4 5 6 7

8 9

treaty considering it incompatible with primary law due to a lack of Community competence. See Opinion 2/94 [1996], ECR I-1759. See C-285/2 Kadi II v Commission, ECLI:EU:C:2008:461, para 283. See the contributions by Daniel Engel, Tina Korosec, and Isabella Risini in this volume and e.g. in the blogosphere: www.verfassungsblog.de. Opinion 2/13, ECLI:EU:C:2014:2454. Daniel Thürer, Pierre-Yves Marro, in: Hermann-Josef Blanke and Stelio Mangiameli 8eds), The Treaty on European Union (Springer Heidelberg, 2013), Art. 47 paras. 1 – 2. Principle of conferral as laid down in Art. 4 and Art. 5 TEU. See Bart van Vooren, Ramses Wessel, EU External Relations Law (Cambridge University Press, 2014), 75; Alan Dashwood, 'The Attribution of external Relations Competence' in Alan Dashwood and Christophe Hillion (eds), The General Law of EC External Relations (London: Sweet and Maxwell, 2000), 116. See chapter „III. 2.“ of this article. See infra chapter “II.2.”.

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tem in relation to international treaty law, which becomes ipso facto part of Union law10. This article will first explore the formal aspects of the Union’s accession to the ECHR, as they are laid down in Art. 218 TFEU. Secondly, some of the substantial aspects of accession will be considered with special regard to Art. 6 (2) TEU. Thirdly, the legal effect of a possible future accession and the impact on member states will shortly be scrutinized. Finally, the results will be concluded. II. The Accession Procedure This chapter shall provide an overview over the European Union’s internal rules on the accession procedure as they are laid down in Art. 218 TFEU11 and induced by the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations from 1986 (VCLTIO)12. 1. Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations At the international level, the procedure for the conclusion of international agreements is regulated in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Most of its provisions, like the ones on the conclusion of treaties, have gradually gained the status of customary rules in international law13. Art. 11 VCLTIO, which is part of the chapter on the conclusion

10 Allan Rosas, 'The European Court of Justice and Public international Law' in Jan Wouters, André Nollkaemper and Erika de Wet (eds), The Europeanisation of International Law (Asser Press, 2008) 71 – 75. 11 An overview of the negotiation process of the – now repelled – accession agreement is provided by Andrew Drzemczewski, 'The EU Accession to the ECHR: The Negotiation Process' in Vasiliki Kosta, Nikos Skoutaris and Vassilis P Tzevelekos, The EU Accession to the ECHR (Oregon Hart Publishing, 2014) 17ff. 12 UN Doc. A/CONV.129/16. 13 Thilo Rensmann, 'International Organizations or Institutions, External Relations and Co-operation' in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of International Law (OUP, 2009) para 11.

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of treaties, explicitly names the act of formal confirmation as the act which may bind international organizations to an international agreement. This provision of the VCLTIO is a restatement of existing customary law and is part of the corpus of international law14. The act of formal confirmation is, on the level of the European Union, carried out by the Council of the European Union by using a “decision” under Art. 218 (6) TFEU. Yet, the VCLTIO does not embody a right to accession for every subject of international law which wishes to do so. The conditions of membership must be negotiated with the other international organization and/or their (original) parties15. Especially in cases of mixed membership, i. e. where the member states continue to be a party to the international organization, which would be the case if the European Union accedes to the ECHR16, the third states or the international organization have a strong interest in the setting of certain conditions to the EU’s accession17. This can be seen for example, in the rules of the Draft Accession Agreement and Art. 17 of Protocol No 14 to the ECHR18. 2. General Accession Requirements, Art. 218 TFEU Due to lack of a special provision for the Union’s accession to the ECHR, the procedural provision for the conclusion of international agreements under Art. 218 TFEU is applicable19. The term “agreements” in Art. 218 TFEU covers international treaties and unilateral declarations20. In its case

14 Malgosia Fitzmaurice, 'Treaties' in Rüdiger Wolfrum (ed), MPEPIL (OUP, 2010) para 13 – states that the rules of the VCLTIO are generally considered as being part of customary law. 15 Pieter Jan Kuijper, Jan Wouters, Frank Hoffmeister, Geert de Baere and Thomas Ramopoulos, The Law of EU External Relations (OUP, 2013) 202. 16 The reason is that all EU Member States are already members of the ECHR as well. 17 (n 13) 202. A usual condition is that either the EU or its member states exercise certain rights. See Kujiper ibid. 18 Agreed in Strasbourg on 13th May 2004; ETS No. 194. 19 In general, Art. 218 TFEU does apply to concluding multilateral conventions and becoming a member of another organization. See (n 13) 212. 20 As the ECJ opined in its “Local Cost“ decision: “[…] uses the expression in a general sense to indicate any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation”, ECLI:EU:C:1975:145, para 1355 and paras 1359-60.

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law, the court refers to the definition of “agreements” in Article 2 (1) (a) of the Vienna Convention on the Law of Treaties of 23 May 196921, which states that “an international agreement may be embodied in a single instrument or in two or more related instruments”22. Those instruments may thus be the expression of the ‘convergence of intent’ on the part of two or more subjects of international law, which those instruments formally establish23. As a result, the “convergence of intent” is required and would not constitute a problem in respect of the Union’s Accession Agreement to the ECHR, since the accession will be carried out by the conclusion of a treaty between two international organizations24. According to Art. 218 (3) TFEU, the first step for the conclusion of an Accession Agreement is a recommendation from the Commission to the Council for the opening of negotiations with the ECHR. Then the Council has to adopt a decision, a formal legal act, for the opening of negotiations in relation to the accession and must designate a negotiator, which is usually the Commission. This mandate can be accompanied by directives of the Council under Art. 218 (4) TFEU, which stipulates the negotiation guidelines25. Then the Commission will negotiate the agreement on behalf of the Union and finally, the negotiations will result in a Draft Accession Agreement26. Upon a proposal from the Commission, the Council decides upon the signature and conclusion of the agreement in question27. If the EU has become a party to the international organization, the mixed membership leads to a duty of close cooperation between the Union and its member states28, as now laid down in Art. 4 (3) TEU. Moreover, according to Art. 216 (2) TFEU, the parts of an agreement to which the Union is

21 22 23 24 25

UNTS vol. 1155, p. 331ff. Opinion 1/13, ECLI:EU:C:2014:2303, para 37. Ibid. See e.g. the provisions of the now invalid Draft Accession Agreement. The negotiation guidelines are confidential. See Panos Koutrakos, EU International Relations Law (2 nd edn, Hart Publishing, 2015) 142. The same is given for the negotiations, which is one of the problems of the recent TTIP-negotiations between the EU and the US. 26 For the different steps concerning the Accession Agreement with the ECHR. See, Opinion 2/13, ECLI:EU: C:2014:2454, paras 46 ff. 27 (n14) 212. See also Piet Eeckhout, EU External Relations Law (Oxford University Press, 2nd ed. 2011), 325. 28 Opinion 1/94, [1994] ECR I-5267, paras 106 ff.

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competent become part of the Union’s internal legal order29 and take part in the concept of supremacy of Union law. 3. Provisions Concerning the Decisions in the EU Council and the European Parliament The described usual accession procedure is accompanied by rather special and cumbersome30 procedural rules concerning the EU Council and the European Parliament, if the accession to the ECHR is at bar. Art. 218 (6) (a) (ii) TFEU states explicitly that for the conclusion of an agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms, that the EU Council shall adopt a decision on the conclusion of the agreement after obtaining the consent of the European Parliament. “Conclusion” is thereby equivalent to national ratification or accession.31 a. Consent of the European Parliament The prior consent of the agreement by the European Parliament in Art. 218 (6) (a) (ii) TFEU is usually reserved for international agreements that change the internal competences of the Parliament in a special manner and thus influence the internal balance of powers32. This can be seen by the draft opinion of the Committee on Civil Liberties, Justice and Home Affairs on the Union’s accession to the ECHR33. Therefore, it is necessary

29 Opinion 2/13, EU:C:2014:2454, para 180. The Council decision enjoys a special mezzanine status in the internal EU legal order. See infra chapter “II.5.b.”. 30 So Giorgio Gaja, ‘Accession to the ECHR' in Andrea Biondi, Piet Eeckhout and Stefanie Ripley (eds), EU Law After Lisbon (OUP, 2012) 180 – 182. 31 (n 23) 147. 32 Stefan Lorenzmeier, in Eberhard Grabitz, Meinhard Hilf and Martin Nettesheim (eds), Das Recht der Europäischen Union: EUV/AEUV (C.H. Beck, 2012) para 47; Hans von der Groeben, Marc Bungenberg, in Hans von der Groeben, Jürgen Schwarze and Armin Hatje (eds), Europäisches Unionsrecht (7th edn, Nomos, 2015) para 68; Schwarze-Jörg Philipp Terhechte, in Jürgen Schwarze (ed), EUKommentar, (3rd edn, Nomos, 2012) para. 19. 33 European Parliament, ‘Draft Opinion of the Committee on Civil Liberties, Justice and Home Affairs for the Committee on Constitutional Affairs on institutional aspects of accession by the European Union to the European Convention for the Pro-

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for the negotiating organs to involve the European Parliament at earlier stages prior to the formal conclusion of the agreement34. Without any doubt, the accession of the Union to the ECHR would be an important political choice with long-term consequences35 and for these choices the approval of the European Parliament, as the foremost democratic organ of the Union, is needed. This shows clearly that the Union’s accession to the Convention is a very important step for the Union and its internal allocation of powers36. The required majority for the decision of the European Parliament is stated in Art. 231 TFEU. It is the usual majority needed for decisions of the European Parliament37. This is important since it is different for the required majority and voting in the EU Council, as explained next. b. Decision of the EU Council Art. 218 (8) para. 2 TFEU is a special provision relevant for the approval of the Accession Agreement to the ECHR, and requires unanimity in the Council. “Unanimity” means that abstentions of members present or represented shall not prevent the adoption of Council acts (Art. 238 (4) TFEU), but that votes explicitly against the decision will have the said effect. This requirement is another indicator for the importance of the content of the Accession Agreement, which may touch upon several political issues, which are partly listed in Protocol No 8 to the EU treaties38.

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tection of Human Rights and Fundamental Freedoms’ (2009/2014 (INI)), accessible under . Robert Schütze, European Constitutional Law (CUP, 2012) 210. See also, Rule 108 of the Rules of Procedure of the European Parliament as of April 2015, available at . (n 34) 210. This will be analyzed infra. See chapter “III.”. See also, Rule 108 (7) of the Rules of Procedure of the European Parliament as of April 2015. (n 28) 180 – 183. Protocol No 8 reads: ”Article 1

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4. Approval of the Member States Moreover, the accession of the EU to the ECHR has to fulfill a further requirement, which is unprecedented in the history of the treaties for an external agreement of the European Union and is due to the special, mostly political effects that the accession would have for the Union and its Member States. According to Art. 218 (8) subpara. 2 TFEU, the Council decision for the conclusion of the agreement will only enter into force after it has been approved by all member states, in accordance with their respective constitutional requirements. Surprisingly, as a result of Art. 218 (8) subpara. 2 TFEU, the member states of the Union which are also members to the Convention have to approve the Accession Agreement two times – not only as a member of the Union but also as a member of the ECHR. How this will be dealt with internally by the member states is an issue of their respective national law and cannot be elaborated in the course of this article. The “system of double approval” is criticized for not being conclusive because it does add little (if anything at all) to the need for the same states to ratify the agreement or a protocol in their capacities as parties to the Convention39. It seems to be impossible that the same state would vote in favor of the Accession Agreement in one instance and against it in the other. The [accession agreement] provided for in Art. 6 (2) [TEU] shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) The specific arrangements for the Union’s possible participation in the control bodies of the [ECHR] (b) The mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate. Article 2 The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the [ECHR], in particular in relation to the Protocols thereto, measures taken by Member States derogating from the [ECHR] in accordance with Article 15 thereof and reservations to the [ECHR] made by Member states in accordance with Article 57 thereof. Article 3 Nothing in the agreement referred to in Article 1 shall affect [Art. 344 TFEU].”. 39 (n 28) 180, 183. The author does not find a special reason for this to be construable.

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5. Treaty Revision? The question is whether the accession of the European Union to the Convention is a revision of the treaties, due to its required approval by all member states of the Union. Resulting from this assumption, the ECHR would, after the European Union’s accession to it, acquire the status of primary law40. This legal phenomenon could be described as the “constitutional shift” of the Accession Agreement. a. Constitutional Shift? The question is whether a “constitutional shift” does really take place by the Union’s accession to the ECHR. The pro “constitutional shift”-view is supported by the fact that the system of double member state-approval is similar to the simplified revision procedure laid down in Art. 48 (6) TEU. The German Constitutional Court seems to support the constitutional shift-assumption. In its famous Lisbon-decision it states that Art. 218 (8) subpara. 2 TFEU41 is „equal“ to Art. 48 (6) TEU42 without determining the legal consequences stemming from it. Yet, it has to be borne in mind that the statement of the German Constitutional Court has a strict internal German meaning and pays regard to the German constitutional requirement of a federal law established in Art. 23 (1) (2) German Basic Law. This cannot be used as an argument for a special EU status to be concluded by the Accession Agreement. Additionally, the German Constitutional Court is not entitled to interpret EU-law43, but only German constitutional law and its opinion with regard to Union law is not externally binding. Moreover, the wording of Art. 218 (8) subpara. 2 TFEU, where it is stated that “the decision […] shall enter into force after

40 Marc Bungenberg in Hans von der Groeben, Jürgen Schwarze and Armin Hatje (eds), Europäisches Unionsrecht (7th edn, Nomos, 2015) at Art. 218 TFEU. 41 “[…]The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements” – Article 218 (8) para 2 TFEU. 42 BVerfGE 123, 267, 387 f. 43 Art. 19 TEU. The possible overlaps constitute a legal problem but it cannot be duly dealt with them in the course of this article.

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it had been approved by the Member States […]”, is rather clear and does support the proposed reading of the provision that the constitutional shift does not take place. As a result from the foregoing, only the decision concerning the conclusion of the Accession Agreement EU – ECHR shall be approved by the member states, and not a revision of the treaties44. b. Systematic Interpretation, Art. 311 (3) TFEU The provided interpretation of the wording of Art. 218 (8) subpara. 2 TFEU is supported by the systematic interpretation of the treaties, namely Art. 311 (3) TFEU. Art. 311 (3) TFEU prescribes the requirement of an approval of the member states, concerning the (also unanimously taken) budget decision of the Council45. The precise legal meaning of this procedural requirement is heavily disputed in (German) academia. The debate again discusses whether the member states’ approval leads to a treaty revision in the meaning of Art. 48 (6) TEU. Firstly, it is argued that the necessary approval, when administering Art. 311 TFEU, is a special treaty requirement. This effectively creates a supreme form of secondary Union law but is still subject to EU primary legislation.46 A second scholarly opinion considers this as a procedure for a treaty revision and, as a logical result, the budget decision is considered primary law in itself47. Thirdly, it is said that the legal status of the decision (primary law or secondary law with a special status) is irrelevant since the decisive factor is its primary law effect, and so it is to be quali-

44 See also, Walther Michl, Die Überprüfung des Unionsrechts am Maßstab der EMRK (Mohr Siebeck, 2014) 147 – who refers to the Spanish version of the text as well („la decisión de celebración de dicho acuerdo entrará en vigor después de haber sido aprobado por los Estados miembros, de conformidad con sus respectivas normas constitucionales“). See also § 3 (1) of the German Integrationsverantwortungsgesetz. 45 (n 42) 147 f. The wording of the provision is as follows: „The Council […] shall unanimously and after consulting the European Parliament adopt a decision […]. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements. 46 Siegfried Magiera, Art. 311 TFEU, in Eberhard Grabitz, Meinhard Hilf and Martin Nettesheim (eds), Das Recht der Europäischen Union: EUV/AEUV (C.H. Beck, 2012) para 10. 47 Matthias Niedobitek, Art. 311 TFEU, in Rudolf Streinz (ed), EUV/AEUV (2nd edn, C.H. Beck, 2012) para. 18.

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fied as an “a-typical decision”48. From a systematic point of view, the second argument proposing that a decision under Art. 311 (3) TFEU requires a treaty review is not fully convincing. Art. 353 TFEU excludes the application of Art. 48 (7) TEU49 to Art. 311 (3) TFEU. This understanding of Art. 311 (3) TFEU is in line with Art. 218 (8) subpara. 2 TFEU since there is similar wording of the norms and therefore, it is to be preferred. An additional and fourth argument has to be taken into account. Art. 216 (2) TFEU acknowledges the formal status of a Council decision equivalent to that of secondary law with a special higher status. Subsequently, other secondary law would be preceded by this kind of decision. However, primary law would still maintain its overarching superiority. As such, the system of special secondary law with supremacy over other secondary provisions is not unknown to the treaties50. Fifthly, Art. 218 (11) TFEU provides that the Union may conclude an accession agreement to the ECHR only if the agreement is compatible with the treaties, as laid down in Art. 218 (11) TFEU51. Thus, the status of the agreement must be “lower” than primary law. ´ Therefore, the named systematic arguments speak clearly in favor of the non-treaty review character of Art. 218 (8) subpara. 2 TFEU, which otherwise would grant the provision an exceptional status in the EU legal order52. Reasons supporting such a reading are ambiguous. The implied

48 Christian Waldhoff, Art. 311 TFEU, in Christian Calliess and Matthias Ruffert (eds), EUV/AEUV (4th edn, C.H. Beck, 2011) Art. 311 TFEU, para 5; Matthias Rossi, in Christoph Vedder and Wolff Heintschel von Heinegg, Europäisches Unionsrecht, (Nomos, 2012) Art. 311 TFEU, para 9 considers it as a legal act sui generis. 49 Remarkably, the norm does not refer to Art. 48 (6) TEU, to which the German Constitutional Court referred. 50 Art. 216 (2) TFEU is to name in this regard. 51 Opinion 2/13, EU:C:2014:2475, View of AG Kokott; Walther Michl, in Rudolf Streinz (ed), EUV/AEUV (2nd edn, C.H. Beck, 2012) Art. 6 EUV, para 21. There is a counter-argument in favor of the view that the term used in Art. 218 (11) TFEU, “envisaged agreement”, indicates that the agreement has not entered into force and did not obtain any legal status. However, this is not fully conclusive since the “envisaged agreement” will become a “concluded agreement”, with binding force, both externally and internally. The term “envisaged” is only used to avoid prebinding the EU to an agreement incompatible with the treaties. 52 See Hans-Peter Folz, 'Der Beitritt der Europäischen Union zur Europäischen Menschenrechtskonvention' in Christoph Vedder (ed), Völkerrecht 2012 (Peter Lang Academic Research, 2013) 105 at 116ff.

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assumption of the German Constitutional Court does not seem to be absolutely convincing because it would, at least in essence, lead to the right of a constitutional shift or a treaty override for the EU institutions. c. View of Advocate General Kokott Advocate General Kokott supports the proposed understanding of Art. 218 (8) subpara. 2 TFEU in her view on Opinion 2/13. According to her opinion, the need for ratification by all the member states does not mean that the EU could depart from primary law53. In addition, she also referred to the provision of Art. 218 (11) TFEU, which could only be understood as upholding the status of secondary law for the Accession Agreement54. As a result of AG Kokott’s view, and as the ECJ had already held in its Kadi II-decision55, the EU institutions are not entitled to engage in a treaty override or a “constitutional shift”, which would constitute a tacit breach of primary law56. d. Applicable for later Protocols to the ECHR? A further question is whether the stated procedural requirements for the accession of the Union to the ECHR are also applicable in the case of the acceptance of a protocol to the Convention. If the ECHR-protocol would affect the accession treaty, only an affirmative answer would be in conformity with the telos of Art. 218 (8) subpara. 2 TFEU due to the similar situation of the conclusion of an accession treaty and a protocol changing the accession treaty. The legal effect is nevertheless different if the proposed protocol evades substantially affecting the accession treaty. Then the special system for the protection of the interests of the member states does not appear to be necessary and a common decision of the Council as stated in Art. 218 (8) subpara. 1 TFEU should be sufficient. The view that the unanimity-provision in the second sub-paragraph should also be applied in this

53 (n 51). 54 Ibid. 55 C-402/05 P and C-415/05 P, Kadi and Al-Barakaat International Foundation, EU:C:2008:461, para 285. 56 See Opinion 2/13, EU:C:2014:2475, View of AG Kokott, para 36.

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case57 is not convincing because, the list of cases entailed in the sub-paragraph is closed and the protocol has to be regarded as an average international agreement. 6. Special Status for the Council Decision? The special procedure for the accession to the ECHR is primarily aimed at targeting hesitations in the Union’s member states. Interestingly, the requirements are also much stricter than the ones in the Constitutional Treaty, which never entered into force. According to Art. III-325 (8) (1) Constitutional Treaty, the Council would decide by a qualified majority and not unanimously. Further, the provision did not contain the additional approval by the member states’ parliaments. The additional requirements seem to be a reply to some fears of the member states that the Union may rule upon too many sensitive political issues. Notably, Art. 218 (8) subpara. 2 TFEU contains very strict requirements and even one member state could easily block the accession to the ECHR for political reasons58, which are usually borne by internal problems of a member state and not by this state’s concerns over European Union issues. Moreover, the strict requirements of Art. 218 (8) subpara. 2 TFEU seem to compromise the wording of Art. 6 (2) TEU (“Union shall accede…”), which indicates that the EU is obliged to become a member of the ECHR59. The procedural and the substantial provision are not at odds60 due to the principle of harmonized interpretation of EU primary law. In accordance with the rule of harmonized interpretation of the treaties, the procedural provisions on accession have to be interpreted in a way that would not make the accession to the ECHR impossible61 and vice versa. As stated earlier and of special interest in the given context is arguably, that only the decision in the European Parliament is taken by the usual majority, whereas the requirement of unanimity for the Council decision is an exception in the Union’s decision-taking system and only reserved for decisions of special relevance. The additional notion of the approval of the

57 58 59 60 61

(n 28) 180, 186. (n 51), Art. 6 EUV, para 7. See infra chapter “III.1.”. (n 28) 180, 182. This continues to be the case after the Opinion 2/13, EU:C:2014:2454.

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member states is unprecedented. As stated supra, the national approvalsystem is similar to the provisions of the amendments of the treaties, as stipulated in Art. 48 TEU. It is another indicator of the importance residing with the accession to the Union. Furthermore, it highlights the development of the constitutional status of human rights protection in the EU system. Yet, the decision of the Council will not receive a special status in the legal order of the Union, but be a decision with the legal effect of Art. 216 (2) TFEU. From this follows a position of priority over other secondary law of the Union, but not over primary law62. 7. Interim Conclusion The combination of the requirements for the Union’s accession to the ECHR and their overall weight finds no parallel with regard to any other international agreement concluded by the EU63. In sum, the accession could lead to a serious shift of the constitutional structure of the European Union because the accession to the ECHR can be regarded as a de facto – but not de jure – change of the treaties. This is the underlying telos for the similarity of the three named provisions, Art. 48 (6) TEU, Art. 218 (8) (2) TFEU and Art. 311 (3) TFEU. Only the first one deals with the modification of Treaties, whereas the other two provisions regulate the situations (very) close to causing such alterations. This is because they cover very sensitive issues for the member states which demand a similar, but not exactly the same, legal treatment. In these exceptional circumstances, the participation of the member states as a different legal entity is required for ensuring the viability of the respective decisions. On an additional level, the cumbersome procedure in addressing the political concerns of the member states regarding the Union’s accession to the Convention. Even if the proposed accession procedure is not fully understood by a party, the accession decision of the institutions of the Union and the approval of the member states, would remain a significant political decision shaping the constitutional structure of the European Union further. The requirements in Art. 218 (2) TFEU try to establish a delicate balance between the constitutional structure, both prior and post, accession to the 62 This interpretation would be similar to the effect of the Council decision taken under Art. 311 (3) TFEU. See supra. 63 (n 28) 180, 183.

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ECHR. From this, it can be rightly concluded that the Treaty drafters were clearly of the opinion that the accession to the ECHR is of great constitutional significance64. III. The Substantive Law Governing Accession The substantive Union law governing accession is laid down in Art. 6 (2) TEU65, Protocol No 866 and a declaration on Art. 6 (2) TEU67. The provisions entail two important requirements for our scrutiny. Firstly, the membership must not affect “the Union’s competences as defined in the Treaties” and secondly, the Union will need to pay due regard to the “specific characteristics of the Union and Union law”.68 These requirements reflect the main concern of the drafters of the European treaties. Their main concern was that the accession of the Union to the ECHR would affect the internal legal order of the Union. This had already been clarified by the Court of Justice in earlier rulings (the Opinion 1/91 concerning the ECJ and the accession to the EEA-Agreement69, and the Opinion 2/94 on the accession to the ECHR70). In the stated opinions, the Court uses a similar wording as the one laid down in Art. 6 (2) TEU in order to emphasize that agreements concluded by the Union are unable to alter the Union’s primary law.

64 So explicitly Piet Eeckhout, EU External Relations Law, (2nd edn, OUP, 2011) 202. 65 Art. 6 (2) TEU: “[The accession to the ECHR] … shall not affect the Union’s competences as defined in the treaties.“. 66 Art. 2 of Protocol No 8: “[The accession agreement] shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions.“ Protocols do have the status of primary law according to Art. 51 TEU. 67 Declaration on Article 6 (2) of the Treaty on European Union: “The Conference agrees that the Union's accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms should be arranged in such a way as to preserve the specific features of Union law. In this connection, the Conference notes the existence of a regular dialogue between the Court of Justice of the European Union and the European Court of Human Rights; such dialogue could be reinforced when the Union accedes to that Convention.”. 68 (n 34) 434. 69 Opinion 1/91 [1991] ECR I-6079. 70 Opinion 2/94 [1996] ECR I-1759.

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Despite the arguments purported in the very illustrative Opinion 2/13 by the European Court of Justice in this regard, this chapter will deal with some general issues concerning the necessary substantive law. 1. “Shall Accede”, Art. 6 (2) (1) TEU The term “shall” in Art. 6 (2) 1st sent. TEU71 indicates that the EU is obliged to become a member of the ECHR72. It is to be determined whether, this obligation can be subjected to and adhere to the conditions of the second sentence of the provision. Additionally, it must be assessed whether the Union is under a legal duty to become a member of the ECHR for eternity. This is rather difficult given the ruling of the ECJ in Opinion 2/13 and will be scrutinized infra73. Yet, due to the general rule and principle of harmonious interpretation of Union law74, no provision of primary law should be rendered meaningless. It has to be accepted that the accession of the EU to the ECHR would restrict the Union’s exercise of its competences75, which is addressed by Art. 6 (2) 2nd sent. TEU. As a result, the second sentence of Art. 6 (2) TEU cannot not absolutely override the first one of the said provision. An additional argument, is that the respect for human rights is one of the fundamental values of the Union, guaranteed in Art. 2 TEU and an aim of the EU as well (Art. 3 (1) TEU). 2. “Shall not affect the Union’s competences”, Art. 6 (2) 2nd sent. TEU At the core of the examination is the determination of the meaning of Art. 6 (2) 2nd sent. TEU, which puts the obligatory accession under a con-

71 The provision reads: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.”. 72 Opinion 2/13 EU:C:2014:2454, para 160; (n 34) 434. Christoph Grabenwarter, Katharina Pabel, Art. 6 TEU, in Hermann-Josef Blanke and Stelio Mangiameli, The Treaty on European Union (Springer Heidelberg 2013), para. 43. 73 Chapter “III.2.”. 74 See the famous Schmidberger-ruling (C-112/00, ECLI:EU:C:2003:333), in which the ECJ applied the proportionality-test for harmonizing a provision of a fundamental freedom and a human rights provision enshrined in the Treaties. 75 See also Opinion 2/13, EU:C:2014:2475, View of AG Kokott, para 41.

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dition, namely that the accession “shall not affect the Union’s competences”. Mainly, the definition of the term “competences” enshrined in Art. 6 (2) TEU, is at stake in the given context. Since the entry into force of the Lisbon-Treaty, the competences of the EU are stipulated in Art. 2 TFEU ff. and are aimed at the right to legislate. With the accession of the Union to a human rights treaty, the special status of internal human rights provisions entailed in Art. 6 (1) TEU, the Charter of Fundamental Rights and Art. 6 (3) TEU, have to be addressed. It can be concluded from Art. 6 (3) TEU, that the substantial essence of the rights embodied in the ECHR already apply in the EU internal legal order and establish a limitation of the Union’s competences76. Whether the accession to the ECHR would lead to a further curtailment of competences is at least doubtful77. From a formal point of view, on the other hand, and as long as the EU has not acceded to the ECHR, the latter has not been legally incorporated into the Union’s legal order78. A further angle is the possible extension of EU competences through the accession to the ECHR, which is prohibited by Art. 6 (2) 2nd sent. TEU. The Court held in its Opinion 2/94 on the first accession of the Union to the ECHR, that there is no provision of primary law which confers on the EU institutions a general power to enact rules on human rights or to conclude international agreements in this field79. This was not changed by the Treaty of Lisbon and stems in essence, from the principle of conferral laid down in Art. 4 (1) and Art. 5 (1) 1st sent. TEU. On the other hand, the accession of the Union is now for the first time explicitly prescribed in Art. 6 (2) 1st sent. TEU. The Court of Justice has frequently held, that the EU treaties established a new legal order80. The conditions for the accession are derived from these treaties81. The task of the court and interpreters, is to analyze whether the proposed arrangement for accession is in line with the requirements mentioned and generally,

76 Insofar, the law of the European Union can be regarded as being „Conventionalised“. See (n 8) 107 – 110. 77 In this regard very hesitant. See (n 74), para 43. 78 Opinion 2/13 EU:C:2014:2454, para 179. 79 Opinion 2/94 EU:C:1996:140, para 35. 80 C-26/62 van Gend & Loos ECLI:EU:C:1963:1 at 12; C-6/64 Costa ENEL ECLI:EU:C:1964:66 at 593; Opinion 1/09, EU:C:2011:123, para 65; Opinion 2/13 EU:C:2014:2454, para 157. 81 Opinion 2/13 EU:C:2014:2454, para 159. These are the already mentioned Art. 6 (2) 2nd sent. TEU, Protocol No 8 the Declaration on Art. 6 (2).

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with the Treaties of the EU82. An agreement would be incompatible with the EU Treaties, if they are not in line with the constitutional structure of the EU or with the characteristics arising from the very nature of EU law83. Such a reading puts the term “competences” in a very wide context and covers not only the principle of conferral, but the whole system of the Union as well84. In conclusion, fundamental human rights must be interpreted and applied in accordance with the EU’s constitutional framework85. This broad understanding strictly limits possible room for action by the EU institutions and leaves open the question, whether this can be brought in line with the obligation to accede to the ECHR. The Court’s reasoning would ultimately lead to the practical conclusion that an accession to the ECHR is hardly possible. Yet, the system of competences not only covers the vertical competences of the Union towards its member states, as mentioned in Art. 2 TFEU ff. It also concerns the horizontal competences of the EU institutions in their internal relations, laid down in Art. 13 (2) TEU. Therefore, the holistic, constitutional approach of the Court of Justice is convincing, despite its shortcoming in respect of the very difficult achievement of accession to the ECHR. Problematic is the Court’s statement in Opinion 2/13, since accession to the Convention would mean a solution is needed so that new decisionmaking powers are unable to bind the EU and its institutions or interfere in the exercise of their internal powers86. One of the main concerns for the ECJ, is to preserve its judicial task granted by Art. 19 (1) 1st sent. TEU87 and the possible interpretative powers of the European Court of Human Rights, after accession88. The Court opined in 1/91 that decision making-powers of other international organization’s or treaties must not have the effect of binding the EU and its institutions, in the exercise of their internal powers, to a particular

82 So explicitly in Opinion 2/13 EU:C:2014:2454, para 163 with reference to the judgment in C-294/83 Les Verts EU:C:1986:166, para 23. 83 Opinion 2/13 EU:C:2014:2454, paras 165 and 166. 84 Ibid at paras 168 ff. 85 Ibid at para 177. 86 Opinion 2/13 EU:C:2014:2454, para 184. 87 See Opinion 1/91 ECLI:EU:C:1991:490, paras 30 to 35. 88 Opinion, 2/13 EU:C:2014:2454, paras 184 ff.

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interpretation of the rules of EU law89. This reading of the treaties should at least be modified in light of the new wording of the Treaty of Lisbon concerning the accession of the EU to the ECHR. In this context, it should be borne in mind that the Court of Justice already exercises jurisdiction in exceptional cases when the dispute involves non-Member States like Switzerland, Turkey and the EEA-states.90 This approach by the ECJ can only be upheld as long as the EU is the stronger partner in a common international agreement like the EEA-Agreement, because it is not fully in line with the principle of reciprocity as accepted in international law. In all other cases, the respective agreement cannot be concluded, as it was, for instance the case with the draft Accession Agreement to the ECHR.91 Notably, and of special relevance in this respect is that the ECJ established in its Kadi II-ruling that human rights provisions are part of the core rights of the Union (constitutional rights!) and that they enjoy priority over „usual“ provisions of the treaties92. These are provisions which belong to the category of primary law but do not belong to the constitutional framework of the treaties. 3. Competence of the ECJ to challenge envisaged Agreements, Art. 218 (11) TFEU Further, some short remarks on the Court’s competence to challenge agreements shall be made. Due to Art. 218 (11) TFEU, the Court is competent to issue opinions on the compatibility of envisaged international agreements with the provisions of the EU treaties. The preventive controlmechanism is aimed at the avoidance of drastic repercussions of treaty-

89 Ibid; Opinion 1/00 EU:C:2002:231, para 13. 90 (n 10) 71, 73. 91 In this respect, it has to be stated that the provided analysis is not criticizing the result of the ECJ concerning the accession to the ECHR, but identifies only some conceptual problems of the Court’s approach. 92 C-285/2 Kadi II v Commission, ECLI:EU:C:2008:461, paras 281 ff. With special regard to para 285: “It follows from all those considerations that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty.”.

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making by the EU in violation of the Union’s primary rules.93 The term “envisaged” implies that the agreement is envisaged by one or more EU institutions on which powers are conferred for the purposes of the procedure provided for in Article 218 TFEU94. The provision’s temporal scope has been interpreted in broad terms and the procedure may be invoked about an agreement whose negotiations have reached an advanced state95. This is due to the objective of the opinion procedure, which is to forestall the legal complications caused by situations in which the member states enter into international commitments without the requisite authorization when, under EU law, they no longer have the necessary legislative competence to put those commitments into effect96. To note is that the court is only competent to analyze the content of the international agreement and not internal EU-rules or other (internal) rules of implementation. IV. Does the accession affect the national legal orders of the Member States? Further questionable is whether the accession of the European Union to the ECHR broadens the ambit of Union law towards the member states. The ECHR will become part of Union law and therefore, become an integral part of the Union’s legal order97. As such, it is possible for any legal act of the member states to breach of the ECHR and fall within the scope of Union law. This effect is not intended by the Accession Agreement. As part of Union law, the ECHR constitutes another layer of human rightsprotection against Union acts and not against all acts of the member states. Therefore, the usual rules apply and member states actions must at least based on a legally binding Union law98. As a result, the situation for the

93 Opinion 2/13 ECLI:EUC:2014:2454, para 230. 94 Opinion 1/13 ECLI:EU:C:2014:2292, para 45. 95 Opinion 2/13 ECLI:EUC:2014:2454, para 231; sufficient information must exist at the time of the request for an opinion. See Opinion 2/94 ECLI:EU:C:1996:140. 96 Case C-1/13 Re Accession of third States ECLI:EU:C:2014:2292, Opinion of AG Jääskinen, para 44 and 47. 97 C-181/73, R. & V. Haegeman v Belgian State, ECLI:EU:C:1974:41 at 449. 98 Due to national implementation and enforcement of most EU legal acts there are a number of possibilities, which cannot be scrutinized in the course of this article. For an overview see (n 32).

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member states will not change after the entry into force of an accession agreement. V. Concluding Remarks The analysis tried to shine some light on the special status of the European Union’s accession to the European Convention of Human Rights and Fundamental Freedoms, and the underlying reasons for accession. The extensive list of procedural and substantive requirements show clearly that the accession of the European Union to the ECHR is a very special and extraordinary task. In the course of this article some core issues of the later Accession Agreement could be pointed out. Firstly, the legal status of the Convention after accession was at bar. Contrary to some academic writings, the ECHR does not acquire the status of primary law after the Union’s accession to it and it remains, as such, lower in hierarchy than the human rights embodied in Art. 6 (1) TEU and Art. 6 (3) TEU. This surprising result is due to Art. 216 (2) TFEU and would apply to the accession treaty as well. The status would be minimized by the fact that the ECHR would certainly get the de facto-status of primary law, but not de jure99. The accession itself would not override the horizontal and vertical system of competences of the Union. Admittedly, this interpretation has its shortcomings. It does not answer the open question of why, if the accession agreement will not be granted the status of primary law, the Charter of Fundamental Rights as well as the general principles stemming from the ECHR have a different and stronger status than the rights embodied in the ECHR. Although, the shown legal interpretation is convincing to the author de lege lata, the legal result of it is anything but and this should be harmonized de lege ferenda in a further revision of the treaties. The second main issue was whether the Accession Agreement, as a de facto constitutional treaty, would grant Art. 6 (2) 1st sent. TEU priority over Art. 6 (2) 2nd sent. TEU. The answer was negative, the two provisions have to be interpreted in a harmonious manner. This seems to be the real conundrum of the anticipated Accession Agreement and the harmonization of the occasional conflict of legal principles embodied in the two pro-

99 This is the factual effect of the proposed accession as a “constitutional treaty”.

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visions, plus Protocol no 8 and the declaration on accession to the ECHR. In the special case of Art. 6 (2) TEU, the nexus between the procedural rules established in Art. 218 (8) TFEU and the substantive ones has to be respected. The telos of the procedural provisions does influence the interpretation of the substantive rules, insofar as that they underline the importance and danger of the possible constitutional shift, inherent in the accession to the ECHR. In this regard, the fragile relationship between the first and second sentence of Art. 6 (2) TEU, it has to be concluded that due to the principle of harmonious interpretation of primary Union law, no sentence can override the other. The conditions of the second sentence (and of Protocol No 8 and the Declaration) can only be regarded as obstacles to the obligation to become a member of the ECHR, but not as hurdles which cannot be overcome. Finally, the accession of the ECHR to the Union is a complicated task due to the enormous political implications of such an act for the European Union, the European Convention and the Union’s Member States.

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Human Rights in Association Agreements with Ukraine, Moldova and Georgia* Roman Petrov

Abstract This paper analyses the human rights dimension of the EU Association Agreements (AA) with Ukraine, Moldova and Georgia. It argues that this new legal framework, which has the objective to establish a unique form of political association and economic integration, is characterised by three specific features: comprehensiveness, complexity and conditionality. After a brief background of the EU relations with Ukraine, Moldova and Georgia the following aspects are scrutinised: legal basis and objectives, institutional framework and mechanisms of enhanced conditionality and legislative approximation in the field of human rights. In addition, challenges for the effective legislative approximation in the field of human rights under the framework of the AAs are discussed. Based upon a comparison with other EU external agreements, it is demonstrated that the AAs with with Ukraine, Moldova and Georgia are innovative legal instruments providing for a new type of integration without membership. I. Introduction According to Herman Van Rompuy, the AA with Ukraine – which served to a large extent as a template for the association agreements (AA) with Moldova and Georgia – is “the most advanced agreement of its kind ever

* The report is based on G Van der Loo, P Van Elsuwege, R Petrov ‘The EU-Ukraine Association Agreement: Assessment of an Innovative Legal Instrument’ 2014/09 European University Institute Working Papers (Department of Law). Available at . The sponsorship for the research has been provided by the Alexander von Humboldt Foundation in the framework of the Research Group Linkage Programme funded by the Federal Ministry of Education and Research.

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negotiated by the European Union”.1 The association agreements with Ukraine, Moldova and Georgia impress with vast volume of reading, wherein only the EU-Ukraine AA counts around 2,140 pages in the Official Journal including 46 annexes, 3 protocols and a joint declaration, already reveals that it is unprecedented both in terms of scope and level of detail.2 The agreements essentially aim to deepen the political and economic relations between Ukraine, Moldova and Georgia and the EU through the establishment of an enhanced institutional framework and innovative provisions on regulatory and legislative approximation. Of particular significance is the ambition to set up a Deep and Comprehensive Free Trade Areas (DCFTA), leading to “gradual integration in the EU internal market” of Ukraine, Moldova and Georgia.3 Accordingly, the AAs belongs to the selected group of “integration-oriented agreements”, i.e. agreements including principles, concepts and provisions of EU law which are to be interpreted and applied as if the third State is part of the EU. Such agreements are an exceptional phenomenon in the practice of the EU’s external action. Apart from the well-known multilateral examples of the European Economic Area (EEA) agreement, the Energy Community Treaty (EnC Treaty) and the European Common Aviation Area Agreement (ECAA),4 a limited number of specific bilateral agreements also deserve this qualification. The issue of human rights is central to the AAs with Ukraine, Moldova and Georgia. It is because these agreements are based on a strict conditionality approach. The preamble to the agreements explicitly states that “the

1 European Council, Press Remarks by H. Van Rompuy, President of the European Council, following the EU-Ukraine Summit, Brussels, 25 February 2013, EUCO 48/13. Available at: , accessed 30.08.2017. 2 Association Agreement between the European Union and its Member States, of the one part, and Ukraine of the other part, OJ, 2014, L 161/1. Association Agreement between the European Union and its Member States, of the one part, and Moldova of the other part, OJ, 2014, L 260/4. Association Agreement between the European Union and its Member States, of the one part, and Georgia of the other part, OJ, 2014, L 261/4. 3 The explicit reference to “Ukraine’s gradual integration in the EU Internal Market” as one of the AA’s objectives (Art. 1 (d)) is quite remarkable. 4 S Blockmans, B Van Vooren, ‘Revitalizing the European ‘Neighbourhood Economic Community’: The Case for Legally Binding Sectoral Multilateralism’ (2012) 17(4) European Foreign Affairs Review 577-604. For texts, see OJ, 2006, L 198/18 (EnC Treaty) and OJ, 2006, L 285/3 (ECAA).

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common values on which the European Union is built – namely democracy, respect for human rights and fundamental freedoms, and the rule of law – lie also at the heart of political association and economic integration” of Ukraine, Moldova and Georgia in the EU. The preamble to the EU-Ukraine AA provides that “political association and economic integration of Ukraine within the European Union will depend on progress in the implementation of the current agreement as well as Ukraine’s track record in ensuring respect for common values, and progress in achieving convergence with the EU in political, economic and legal areas.”5 This link between the third country’s performance and the deepening of the EU’s engagement is a key characteristic of the European Neighbourhood Policy (ENP) and the Eastern Partnership (EaP). Whereas this principle has so-far been applied on the basis of soft-law instruments such as Action Plans and the Association Agenda, it is now encapsulated in a legally binding bilateral agreement.6 II. Background of the EU’s relations with Ukraine, Moldova and Georgia: From Partnership and Cooperation to Association The AAs will replace the Partnership and Cooperation Agreements (PCAs) as the basic legal framework of the EU’s relations with Ukraine, Moldova and Georgia. The PCAs, which were signed in 1994, entered into force in the course of 1998-1999 for an initial period of ten years.7 Pursuant to the PCAs, the agreements are automatically extended each year unless either side informs the other party of its denunciation at least six months before the expiry date. Due to internal developments in both the EU and Ukraine, Moldova and Georgia, several provisions of the PCA are out of date and no longer reflect the current ambition of the bilateral relationship. The preamble and Article 1, for instance, refer to Ukraine as “a country with an economy in transition”, which is no longer appropriate af5 Emphasis added. 6 See e.g. the EU-Ukraine Association Agenda (EU-Ukraine Cooperation Council, ‘Recommendation on the implementation of the EU-Ukraine Association Agenda to prepare and facilitate the implementation of the Association Agreement’, EU-UA 1057/0923, 23 November 2009, updated in 2011). 7 PCA between the EC and their Member States and Ukraine, OJ, 1998, L 49. PCA between the EC and their Member States and Moldova, OJ, 1998, L 181. PCA between the EC and their Member States and Georgia, OJ, 1999, L 205/3.

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ter the country’s accession to the World Trade Organization (WTO) in 2008. Moreover, the agreements include general and broadly defined provisions on economic co-operation8 but stops short of any regional trade integration. The PCAs only provide that the parties consider “whether circumstances allow the beginning of negotiations on the establishment of a free trade area”.9 Like many other provisions of the agreement, this so-called ‘evolutionary clause’ is essentially a declaration of intent without any direct legal consequences. The minimalistic approach of the PCA is particularly well-illustrated as regards the objective of approximating existing and future legislation of Ukraine, Moldova and Georgia to that of the EU. While recognizing that this process of legislative approximation is an important condition for strengthening the economic links between the parties, the PCAs proclaim that Ukraine, Moldova and Georgia “shall endeavour to ensure that its legislation be gradually made compatible with that of the Community [now Union]”.10 This can hardly be regarded as a formal legal commitment. There is only an obligation to act but without a requirement to achieve particular results or a sanction in case the approximation of laws obligation is not fulfilled. Moreover, the approximation clause includes a long list of “priority areas” for legislative action but fails to provide clear guidelines on the scope and content of the EU laws to be taken as the basis for approximation nor does it include a link with the objective to establish a Free Trade Area (FTA) in the future.11 The launch of the ENP in the wake of the EU’s eastward enlargement provided new impetus to the EU’s relations with Ukraine, Moldova and Georgia. In this context, the European Commission proposed to move beyond mere cooperation to a significant degree of economic integration in

8 The title “Economic Cooperation” in the PCA contains provisions on industrial cooperation, investment promotion and protection, public procurement, co-operation in the field of standards and conformity assessment, education and training, energy, environment, cooperation in science and technology, tourism, monetary policy, social cooperation, money laundering, regional development, information and communication, statistical cooperation, etc. 9 For example, Art. 4 EU-Ukraine PCA. 10 For example, Art. 51 EU-Ukraine PCA, emphasis added. 11 R Petrov, ‘Recent Developments in the Adaptation of Ukrainian Legislation to EU law’ (2003) 8(1) European Foreign Affairs Review 125-141, at 131.

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return for concrete progress in terms of legal approximation.12 In the short term, an ENP Action Plans – adopted with Ukraine, Moldova and Georgia in 2005 for a period of three years – laid down political and economic priorities for reform whereas the negotiation of a new bilateral framework agreement to replace the PCAs was considered to be a long term objective.13 Regarding the objective of trade liberalisation and economic integration, the first Commission Communications were ambitious but vague, stating that the ENP Partners should be offered “a prospect of a stake in the EU’s Internal Market”. These ambitions were further developed in the context of the EU’s 2006 “Global Europe Strategy”, the new trade policy agenda set out by the European Commission.14 According to this new approach, the EU would seek to go beyond WTO commitments in promoting trade liberalisation and integration, by tackling issues which are not ready for multilateral discussion.15 This implies the ambition to conclude a new generation of comprehensive and ambitious free-trade agreements, including far-reaching liberalization of services and investment and the abolition of non-tariff barriers through regulatory convergence with regard to issues such as the protection of intellectual property rights, competition law, rules of origin, labour standards and environmental protection. At the end of 2006, the Commission announced its intention to negotiate “deep and comprehensive free trade agreements” (DCFTAs) with the EU’s neighbours including “substantially all trade in goods and services” and “strong legally-binding provisions on trade and economic regulatory issues”.16

12 European Commission, ‘Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’, COM (2003) 104 final, 11 March 2003. 13 In November 2009, the EU-Ukraine Action Plan was replaced by a bilateral Association Agenda (EU-Ukraine Cooperation Council, ‘Recommendation on the implementation of the EU-Ukraine Association Agenda to prepare and facilitate the implementation of the Association Agreement’, UE-UA 1057/0923, 23 November 2009). 14 European Commission, ‘Global Europe: Competing in the World’, COM (2006) 567 final, 4 October 2006. 15 Ibid., 7. 16 European Commission, ‘Communication from the Commission to the Council and the European Parliament on Strengthening the European Neighbourhood Policy’, COM (2006) 726 final, 4 December 2006, 4.

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Against the political background of the Orange Revolution, Ukraine was the first ENP country to start negotiations on a new Association Agreement in March 2007 as part of a general revision of the bilateral legal framework. Negotiations on the DCFTA were only launched in February 2008 after Ukraine’s accession to the WTO. A political agreement was reached in December 2011 and the AA was initialled in March 2012.17 On 15 May 2013, the Commission adopted the proposals for a Council Decision on the signing and conclusion of the EU-Ukraine AA.18 Nevertheless, this agreement was not immediately signed due to demands on behalf of the EU to abandon the practice of selective justice and to align the Ukrainian judiciary and law enforcement systems with European standards.19 Eventually, on the eve of the EaP Summit in Vilnius, the Ukrainian Government decided to suspend the process of preparation for signature of the AA in order “to ensure the national security of Ukraine and to recover trade and economic relations with the Russian Federation”.20 Following this news, hundreds of thousands of Ukrainians went to the streets. The ensuing Maidan revolution led to the dismissal of President Victor Yanukovych on 22 February 2014 and the establishment of an InterimGovernment under the leadership of Arseniy Yatsenyuk. Proceeding with the signature of the EU-Ukraine AA was a clear short-term objective for the new authorities in Kiev.21 There was a growing understanding that a clear message of solidarity to the Ukrainian people was needed in light of the mounting Russian pressure on Crimea and the Eastern part of Ukraine. In this context, the EU

17 The DCFTA part was only initialled, after legal scrubbing, in July 2012. 18 European Commission, ‘Signature of Association Agreement with the EU will depend on Ukraine's performance’, Press Release, 15 May 2013, IP/13/436. 19 3209th Foreign Affairs Council Meeting, Council Conclusions on Ukraine, 10 December 2012. 20 Decision of the Cabinet of Ministers of Ukraine from 21st November 2013, N 905p. Arguably, the Ukrainian government’s decision cannot be disconnected from the Russian proposal to establish a Eurasian Union building upon the already existing customs union between Russia, Belarus and Kazakhstan. On the background of this initiative and its implications for EU-Ukraine relations, see: G Van der Loo and P Van Elsuwege, ‘Competing Paths of Regional Economic Integration in the Post-Soviet Space: Legal and Political Dilemmas for Ukraine’ (2012) 37 Review of Central and East European Law 421-447. 21 G Gotev, ‘Ukraine ready to sign Association Agreement during March EU Summit’, Euractiv.com, 27 February 2014, available at , accessed 30.08.2017.

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Heads of State or Government announced on 6 March 2014 that “as a matter of priority” all the political chapters of the EU-Ukraine AA would be signed first. In addition, the adoption of autonomous trade measures “would allow Ukraine to benefit substantially from the advantages offered in the Deep and Comprehensive Free Trade Area.”22 The signature of the political provisions of the EU-Ukraine AA effectively took place on 21 March 201423 and on 14 April 2014, after a ‘fast track’ approval process, the European Parliament and the Council adopted a Regulation “on the reduction or elimination of customs duties on goods originating in Ukraine.”24 Accordingly, Ukraine was allowed to benefit from the EU’s unilateral trade preferences in accordance with the schedule of concessions set in out in annex I-A of the EU-Ukraine AA.25

22 Statement of the Heads of State or Government on Ukraine, Brussels, 6 March 2014, available at , accessed 30.08.2017. 23 The ‘political provisions’ of the agreement which were signed on 21 March 2014 include the preamble, Article 1 (objectives), Title I (general principles), II (Political dialogue and reform, political association cooperation and convergence in the field of CFSP) and VII (institutional, general and final provisions). See: Final Act of the Summit between the EU and its Member States, of the one part, and Ukraine, of the other part, as regards the association agreement, available at , accessed 30.08.2017. It must be noted that Title III (Justice, Freedom and Security) can also be considered as a ‘political chapter’ of the AA. However, several Member States opposed the signature of this chapter on 21 March 2014 as it includes ‘sensitive’ provisions on treatment and mobility of workers and movement of persons (Arts. 17-19) (Interview with EEAS official, 22 April 2014). 24 Regulation (EU) No 374/2014 of the European Parliament and of the Council of 16 April 2014 on the reduction or elimination of customs duties on goods originating in Ukraine (OJ, 2014, L 118/1). 25 The unilateral trade preferences apply until the DCFTA part of the AA (provisionally) enters into force and in any case no later than 1 November 2014. It is noteworthy that the EU did not request a WTO waiver for the adoption of the autonomous measures (under Art. IX:3 WTO) because they anticipate the (provisional) application of the EU-Ukraine DCFTA. Hence, the EU’s démarche is deemed to be in conformity with GATT Article XXIV. See, on the development of this line of argumentation, the response of the Commission’s representative to questions during the meeting of the European Parliament Committee on International Trade (INTA), Brussels, 19-20 March, available at , accessed 30.082.2017.

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It is noteworthy that the political and economic parts of the AAs remain part of a single legal instrument.26 In other words, the partial signature of the EU-Ukraine AA on 21 March 2014 may essentially be regarded as a political gesture underlining the parties’ commitment to shared values and the objectives of the envisaged association. Moreover, this partial signature did not result in the entry into force of these ‘political’ chapters, neither to their provisional application. It was only after the final signature ceremony on 27 June 2014 by the newly elected Ukrainian President Petro Poroshenko by Moldovan Prime Minister Iurie Leancă and by Georgian Prime Minister Irakli Garibashvili that the ratification procedure for the entire AAs could be initiated. Because the AAs are mixed agreement, which need to be ratified by all (at the time of writing) 28 EU Member States, this procedure took several years. In order to circumvent this long ratification procedure, the AAs provided for the possibility of the provisional application of the agreement.27 Given the political significance of the AAs, the Council agreed on an exceptional wide scope for provisional application, including, inter alia, the entire title on General Principles and Financial Cooperation, almost the entire DCFTA, Institutional, General and Final Provisions and several provisions regarding political dialogue, Justice, Freedom and Security and economic and sectoral cooperation.28 This broad scope could raise questions on the provisional application of 26 Final Act of the Summit between the EU and its Member States, of the one part, and Ukraine, of the other part, as regards the association agreement, available at , accessed 30.08.2017. 27 For a detailed analysis of the provisional application of international agreements concluded by the EU, see C Flaesch-Mougin, I Bosse-Platière, ‘L’application provisoire des accords de L’Union Européenne’, in I Govaere, E Lannon, P Van Elsuwege, S Adam (eds.), The European Union in the World. Essays in Honour of Marc Maresceau, (Martinus Nijhoff Publishers, 2014), 293-323. 28 Combined reading of the Council Decision 2014/295/EU of 17 March 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, as regards the Preamble, Article 1, and titles I, II and VII thereof (OJ, 2014, 161/1) and Council Decision […]/2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, as regards Title III, IV, V, VI and VII of the Agreement, as well as the related Annexed and Protocols (not yet pubished in the OJ, on file with the authors). It must be noted that the Commission

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‘mixed’ elements of the AA. In this view, it is stated in the Council Decisions on the signing of the AAs that these listed provisions shall be applied on a provisional basis “only to the extent that they cover matters falling within the Union’s competence, including matters falling within the Union’s competence to define and implement a common foreign and security policy”.29 In addition, the Council, Commission and High Representative adopted a Joint Statement providing that the provisional application of the General Principles set down in Article 2 “is without prejudice to the division of competences between the Union and the Member States on the matters referred to therein”.30 Unfortunately, in contrast to the AAs with Moldova and Georgia the entering into force of the EU-Ukraine AA was not smooth. The negative outcome of the consultive Dutch referendum in April 2016 considerably postponed the long-awaited formalisation of the EU-Ukraine AA.31 Finally, following complicated political negotiations with the Dutch government the EU-Ukraine AA entered into legal force on 1 September 2017.32

29 30

31 32

even proposed a broader scope for provisional application, including, inter alia, the entire Title on Political Dialogue and Reform, Political Association, Cooperation and Convergence in the field of Foreign and Security Policy (Title II) (European Commission, ‘Proposal for a Council Decision on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part’, COM(2013) 289 final, 15 May 2013). See Art. 4 Council Decision 2014/295/EU, ibid. General Secretariat of the Council, ‘Relations with Ukraine – Joint Statement in the Council minutes’, Brussels, 20 June 2014, Interinstitutional File 2013/0155 (on file with the authors). In addition, this Statement declares that the provisional application of cooperation in Art. 14 of the EU-Ukraine AA on the rule of law and respect for human rights and fundamental freedoms “does not constitute an exercise by the European Union of competence pursuant to Title V of Part III [TFEU]”. On this issue, see also the Statements made by Hungary and Portugal and the Council. For an analysis of the provisional application of mixed agreements, see F Hoffmeister, ‘Curse or Blessing? Mixed Agreements in the Recent Practice of the European Union and its Member States’, in C Hillion, P Koutrakos (eds.), Mixed Agreements Revisited, (Hart Publishing, 2010), 257. P. Teffer, ‘Netherlands ratifies EU-Ukraine treaty‘, EUObserver, 30 May 2017, available at , accessed 10.08.2017. , accessed 10.08.2017.

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III. Legal Basis and Objectives The AAs are distinguished by details of their legal basis. The Council Decisions on the signing and provisional application of the political provisions of the EU-Ukraine AA, adopted on 17 March 2014, combines the legal basis for EU action in the area of CFSP (Arts. 31(1) and 37 Treaty on the EU (TEU)) with the traditional provision on association (Art. 217 Treaty on the Functioning of the EU (TFEU)).33 From a procedural point of view, the presence of a CFSP legal basis does not make a major difference because association agreements already require unanimity in the Council.34 Moreover, the CFSP dimension of the AA is too limited to overrule Art. 218(6)a(i) TFEU which requires the consent of the European Parliament for the conclusion of association agreements.35 Nevertheless, the combination of CFSP/TFEU legal bases may be regarded as a logical consequence of the continuing bipolarity of the EU’s external action as reflected in Article 40 TEU.36 The EU-Ukraine AA is one of the first examples of this new practice, which stems from the Lisbon Treaty amendments to the procedural code for negotiating and concluding international agreements on behalf of the EU.37 In contrast to the EU-Ukraine AA the EU-Moldova and EU-Georgia AAs’ legal base is only Article 217 TFEU.

33 Council Decision 2014/295/EU of 17 March 2014. 34 Art. 218 (8) TFEU. 35 According to Art. 218(6) TFEU an association agreement can only be concluded without the consent of the European Parliament if it relates “exclusively” to CFSP. In recent Case C-658/11, Commission v. Council, the Court of Justice clarified that the substantive legal basis of a Council decision adopted for the conclusion of an international agreement determines the procedures to followed. Hence, only when the substantive legal basis exclusively relates to the area of CFSP, the European Parliament does not play a role in this process. 36 See, on this new form of mixity: A. Dashwood, “The continuing bipolarity of EU external action”, in: I. Govaere, E. Lannon, P. Van Elsuwege, S. Adam (eds.), The European Union in the World. Essays in Honour of Marc Maresceau, (Martinus Nijhoff Publishers, 2014), 3-16 and, in the same volume, S. Adam, “The Legal Basis of International Agreements of the European Union in the Post-Lisbon Era”, 65-86. 37 The unified procedure for the negotiation and conclusion of international agreements on behalf of the EU is laid down in Art. 218 TFEU.

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1. Enhanced Human Rights Conditionality in the AAs Conditionality is one of the key strategic tools of the ENP and it is, therefore, no surprise that this instrument also occupies a prominent place in the AAs. Two different forms of conditionality can be distinguished. On the one hand, the AAs include several provisions related to commitment of Ukraine, Moldova and Georgia to the common European values of democracy, rule of law and respect for human rights and fundamental freedoms (‘common values’ conditionality). On the other hand, the part on the DCFTA is based on an explicit ‘market access’ conditionality implying that Ukraine, Moldova and Georgia will only be granted additional access to a section of the EU Internal Market if the EU decides, after a strict monitoring procedure, that these countries successfully implemented its legislative approximation commitments. Below we will focus on the common values conditionality in the AAs with Ukraine, Moldova and Georgia. 2. Common Values Conditionality International agreements concluded on behalf of the EU include standard conditionality clauses. In general, an ‘essential element clause’ defining the core common values of the relationship is combined with a ‘suspension’ clause including a procedure to suspend the agreement in case of violation of those essential elements.38 Such a mechanism is also included in the AAs.39 Yet, the common values conditionality in the AAs differs from similar provisions included in, for instance, the SAAs with the Western Balkans. First, in addition to the standard reference to democratic principles, human rights and fundamental freedoms as defined by international legal instruments (Helsinki Final Act, the Charter of Paris for a New Europe, the UN Universal Declaration on Human Rights and the European Convention on Human Rights and Fundamental Freedoms),40 a specific reference to human rights and fundamental freedoms is included in the

38 See L Bartels, Human Rights Conditionality in the EU’s International Agreements (OUP, 2005). 39 Art. 2 in conjunction with Art. 478 EU-Ukraine AA. 40 Art. 2 EU-Ukraine AA. The same principles and legal instruments are mentioned in Art. 2 of the SAA with Serbia.

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AAs provisions on “dialogue and cooperation on domestic reform” and in the AAs provisions dealing with cooperation on justice, freedom and security. Second, the essential elements of the AAs contain common values that go beyond classical human rights and also include very strong security elements such as the “promotion of respect for the principles of sovereignty and territorial integrity, inviolability of borders and independence, as well as countering the proliferation of weapons of mass destruction, related materials and their means of delivery”.41 Third, “the principles of free market economy” as well as a list of other issues such as “rule of law, the fight against corruption, the fight against the different forms of trans-national organised crime and terrorism, the promotion of sustainable development and effective multilateralism” are not included in the definition of essential elements.42 Rather, they are considered to “underpin” the relationship between the parties and are “central to enhancing” this relationship.43 In other words, a distinction is made between hard core common values related to fundamental rights and security and a range of other general principles that are deemed crucial for developing closer relations but which cannot trigger the suspension of the entire agreement.44 3. Mechanisms of Legislative Approximation in Field of Human Rights In contrast to the PCA, which only includes a very general ‘best endeavour clause’,45 the new AAs contain multiple specific provisions on legis-

41 Art. 2 EU-Ukraine AA. In comparison, Arts. 2 and 3 of the SAA with Serbia only include full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) and non-proliferation of weapons of mass destruction as essential elements of the agreement. On the other hand, Art. 2 of the SAA includes a general reference to “respect for principles of international law”, which is not in Art. 2 of the EU-Ukraine AA. 42 Art. 3 EU-Ukraine AA. In contrast, Art. 2 of the SAA with Serbia includes the principles of the market economy in the list of essential elements. 43 Ibid. 44 Art. 478 EU-Ukraine AA foresees that a suspension of the entire agreement, including the part on Trade and Trade-related measures, is only possible in case of violation of the essential elements or in accordance with the general rules of international law. 45 Largely comparable ‘best endeavour’ clauses are also included in the SAAs and in the Euro-Mediterranean Association Agreements (EMAAs). Of course, the pre-accession process develops the voluntary nature of the SAA approximation clauses

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lative and regulatory approximation including detailed annexes specifying the procedure and pace of the approximation process for different policy areas.46 The various approximation clauses differ in the sense that for some areas the annexes contain detailed lists of relevant EU legislation whereas others are more general in nature or even lack a clear legal obligation to approximate. To a certain extent, the variation between these approximation provisions is the result of the different objectives of each chapter. However the legislative and regulatory approximation commitments in the AAs are not directly linked to the field of Human Rights but only to the Titles on Trade and Trade related Matters (DCFTA), Economic and Sector Cooperation and Financial Cooperation and Anti-Fraud Provisions. Not surprisingly, the most advanced mechanisms of legislative approximation are to be found in chapters related to the establishment of the DCFTA. The AAs also includes several mechanisms to deal with the dynamic evolution of the incorporated EU acquis as well as sophisticated forms of dispute settlement. Unfortunately the AAs provisions on common values conditionality are not distinguished by either “hard” or “soft” approximation clauses. 4. New Generation of Legislative Approximation Clauses The AAs provide that of Ukraine, Moldova and Georgia “will carry out gradual approximation of its legislation to EU law” as referred to in no less than 44 annexes to the agreement and based on specific commitments and mechanisms identified in both the annexes and specific titles to the agreement.47 Separate approximation clauses can be found in Title on the

into a firm obligation considering Article 49 TEU and the Copenhagen criteria. Regarding the EMAAs, it is noteworthy that the nature of the obligation is even softer than under the PCAs as they only prescribe that “cooperation” [emphasis added] shall be aimed at helping [the Mediterranean partner] to bring its legislation closer to that of the Community” (Art. 52 EMAA Morocco (OJ, 2009, L 107/166) or that the parties “shall use their best endeavours to approximate their respective laws [emphasis added] in order to facilitate the implementation of this agreement” (Art. 48 EMAA Egypt (OJ, 2004, L 304/39)). 46 Art. 474 of the EU-Ukraine AA. 47 Art. 474 of the EU-Ukraine AA, Art. 448 of the EU-Moldova AA, Art. 414 of the EU-Georgia AA.

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DCFTA, Title on Economic and Sector Cooperation and Title on Financial Cooperation. Other AAs’ Titles contain rather general provisions referring to international conventions or “European and international standards”48 and cannot be considered as approximation clauses sensu stricto because there is no clear obligation to incorporate EU legislation. In the Title on Economic and Sector Cooperation, most chapters share a similar ‘standard approximation clause’ providing that Ukraine, Moldova and Georgia shall gradually approximate its legislation to the EU acquis as set out in the annex to the chapter concerned.49 Each of these annexes provides a list of specific EU legislation and a timetable for approximation.50 Even though the annexes state that Ukraine, Moldova and Georgia only “undertake” to gradually approximate to the selected EU legislation, they provide a strict deadline against when the selection of EU acquis “shall be implemented”.51 Other approximation clauses in this title are less ambitious as they do not list a selection of EU acquis in an annex52 or because they lack a firm binding obligation to approximate.53 Hence, it is obvious that the AAs include a very complex and sophisticated patchwork of legislative approximation mechanisms which differ from other existing models of integration without membership. First, in comparison to the Swiss model of sectoral bilateral arrangements or the multilateral sectoralism of the EnC Treaty and the ECAA, the AAs incor48 Art. 15 EU-Ukraine AA. 49 Also Title VI on Financial cooperation contains such a standard approximation clause (Art. 459 EU-Ukraine AA). 50 Chapter 4 Taxation (Art. 353- Annex XXVIII), Chapter 6 Environment (Art. 363Annex XXIX), Chapter 7 Transport (Art. 368- Annex XXXI), Chapter 13 Company Law, Corporate Governance, Accounting and Auditing (Art. 387- Annex XXXIV and XXXV), Chapter 15 Audio Visual Policy (Art. 397- Annex XXXVII), Chapter 20 Consumer Protection (Art. 417- Annex XXXVIII), Chapter 21 cooperation on Employment, Social Policy and Equal Opportunities (Art. 424- Annex XXXIX) and Chapter 22 Public Health (Art. 428- Annex XL). The approximation clauses of Chapter 12 Financial Services (Article 385) and Chapter 14 Information Society (Art. 394) make a cross reference to DCFTA Chapter 6 on Establishment, Trade in Services and Electronic Commerce. 51 Ibid. 52 Chapter 9 Cooperation in Science and Technology (Art. 375(1) EU-Ukraine AA) and Chapter 18 Fisheries and Maritime Policy (Art. 410 EU-Ukraine AA). 53 For example, Art. 405 EU-Ukraine AA on Agriculture and Rural Development states that the Parties shall “support” gradual approximation to EU legislation. See also Arts. 410 and 435 EU-Ukraine AA for similar non-binding approximation clauses.

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porate several different sectoral approximation mechanisms in a single legal instrument. Second, the various legislative approximation mechanisms included in the AAs differ in scope and nature depending on the envisaged level of integration and market opening. Only in those areas where full internal market treatment is foreseen, such as in services and establishment, the arrangement is comparable to the mechanism for legislative approximation under the EEA. Third, in comparison to the EEA model, the arrangement for legislative approximation does not provide for the creation of a homogenous and dynamic legal space. Rather, it offers an alternative model based on strict market access conditionality.54 5. Procedures to Amend or Update the Incorporated EU acquis Due to the constant evolution of EU law, applying a selection of EU acquis is for a third country as shooting on a moving target. Moreover, it could be that the Parties want to broaden the level of integration at a later stage and, therefore, envisage extending the selection of the incorporated EU acquis. In other words, a crucial challenge for the AAs, and by extension for all EU integration agreements, is to keep the agreement up to date and in line with the evolving EU legislation. This can be based on either ‘dynamic’ or ‘static’ mechanisms depending on whether or not there is an obligation to adopt automatically every amendment to the EU acquis that is covered under the agreement.55 The most developed dynamic model for keeping track with changes in EU legislation is certainly incorporated in the EEA Agreement. Pursuant to Article 102 EEA, every modification to the EU acquis covered by the scope of this agreement must be discussed within the EEA Joint Committee, which shall amend the relevant EEA annexes in order to allow a si-

54 When comparing the EU-Ukraine AA with the EEA, it should be noted that the latter is “an international treaty sui generis which contains a distinct legal order of its own [and which] goes beyond what is usual for an agreement under public international law” (EFTA Court, Erla Maria Sveinbjörnsdòttir v. Government of Iceland, Case E-9/97, 1998, para 95). 55 A dynamic procedure does not mean that that every modification at the level of the EU law must automatically be transposed to the Agreement, however, the parties must at least consider to do so. Nevertheless, in some cases, the refusal to update the incorporated EU acquis can lead to the (partial) suspension or termination of the agreement (e.g. Art. 102(5) EEA)).

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multaneous application of legislation in the entire EEA. A more static approach to the obligation of legislative approximation can be found in the EnC Treaty, which provides that the Energy Community “may take measures to implement amendments to the acquis” in the form of a decision or a recommendation of the Ministerial Committee (or Permanent High Level Group provided it is authorised by the Ministerial Committee).56 Again, the AAs differ from other models of integration without membership. There is no single mechanism to amend the incorporated EU acquis, covering the entire agreement, but many different ones, varying from ‘static’ to ‘dynamic’ procedures. 6. Scenarios of Potential Legislative Approximation in the Field of Human Rights The AAs do not provide any explicit mechanisms for the legislative approximation in the field of human rights. However one may argue about potential possibility of this process via three possible scenarios. The first scenario is introduction of either a new approximation clause or amendment of the Annexes in the field of human rights. Indeed, the Association Councils “may” update or amend the Annexes to the Agreement “[to take] into account the evolution of EU law”, without prejudice to any specific provisions included in the DCFTA.57 In addition, the Association Councils will also be the forum for exchange of information on EU and other parties’ legislative acts, “both under preparation and in force”. Because this allows the Ukrainian, Moldovan and Georgian administrations to be consulted and to express their opinions and concerns on draft amendments of relevant legislation, this procedure can be considered as a limited form of “decision-shaping”. However, this Article can hardly be seen as a dynamic procedure since the Association Councils is not obliged to consider updating the Annexes to each and every modification of relevant EU legislation. Moreover, because the Association Councils, which comprises both EU and other parties’ representatives, must take decisions “by agreement”, Ukraine, Moldova and Georgia can always veto this process.58

56 Arts. 25, 47, 53 and 76 EnC Treaty. 57 Article 463(3) EU-Ukraine AA, Article 449 EU-Moldova AA, Article 415 EUGeorgia AA. 58 Combined reading of Arts. 462(1) and 463(1) EU-Ukraine AA.

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Therefore it could be argued that the role of the common values conditionality and human rights provisions can be enhanced by binding decisions of the Association Council within the AAs with Ukraine, Moldova and Georgia. The second scenario is encouragement of the governments of Ukraine, Moldova and Georgia to enhance the level of protection of human rights following results of annual monitoring of the implementation of the AAs. Of particular significance of the AAs is a far-reaching monitoring of Ukraine’s, Moldova’s and Georgia’s efforts to approximate their national legislation to EU law, including aspects of implementation and enforcement.59 To facilitate the assessment process, the Ukrainian, Moldovan and Georgian government are obliged to provide reports to the EU in line with approximation deadlines specified in the Agreement.60 In addition to the drafting of progress reports, which is a common practice within the EU’s pre-accession strategy and the ENP, the monitoring procedure may include “on-the-spot missions, with the participation of EU institutions, bodies and agencies, non-governmental bodies, supervisory authorities, independent experts and others as needed.”61 Arguably, the latter option is a new and far-reaching instrument introduced precisely to guarantee that legislative approximation goes beyond a formal adaptation of national legislation and may lead to the considerable enhancement of the protection of human rights in Ukraine, Moldova and Georgia. The third scenario is voluntary application of the EU acquis in the field of human rights by judiciaries in Ukraine, Moldova and Georgia. Following the implementation of the Partnership and Cooperation Agreement between the EU and Ukraine, Moldova and Georgia the judiciaries of these countries have acquired experience in applying elements of the EU acquis in their judgments and decisions. In some cases the national judiciaries imported some principles and doctrines of EU law into their national legal systems and made references to the European Court of Justice’s case law.62 It is likely that far reaching objectives of the AAs will encourage the judiciaries in Ukraine, Moldova and Georgia to apply fundamental

59 60 61 62

For example, Art. 475 (2) EU-Ukraine AA. For example, Art. 475(2) EU-Ukraine AA. Art. 475 (3) EU-Ukraine AA. P Van Elsuwege, R Petrov, Legal Approximation of EU Law in the Eastern Neighbourhood of the EU: Towards a Common Regulatory Space? (Routledge Press, 2014).

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principles of EU law and the European Court of Justice’s case law in the field of human rights. IV. Concluding Remarks Taking into account the comprehensive nature of the AAs with Ukraine, Moldova and Georgia, the underlying conditionality approach and the complex mechanisms for legislative approximation and dispute settlement, the AAs occupy a unique position within the network of bilateral agreements concluded between the EU and third countries. The AAs are not identical but tailored to the needs and requirements of the parties involved. Key differences between the EU-Ukraine AA and the Moldova or Georgia AAs are, for example, that Georgia is referred to in the preamble of the Georgia AA as an “Eastern European country” (emphasis added) and that both the Georgia and Moldova AAs do not include a non-discrimination clause for treatment and mobility of workers, corresponding to Articles 17 and 18 of the EU-Ukraine AA. A key feature of the AAs, of course, is the far-reaching market accession conditionality. Based upon a strict monitoring process, apparently inspired by the pre-accession methodology, not only the process of legislative approximation but also – and most importantly – the effective enforcement and implementation of the AAs is subject to permanent scrutiny. Strong emphasis on the human rights and common values conditionality illustrates that the EU is very cautious to promote own democratic values to third countries which have a less stable political and economic system than the EU Member States. The AAs also fundamentally differ from other agreements with the EU’s neighbouring countries. In fact they create a single legal framework opposed to the Swiss model of sectoral bilateralism and it is not sectorspecific such as the multilateral EnC Treaty or the ECAA. Rather, the AAs incorporate certain bits and pieces derived from other agreements and policies. The AAs’ aims, objectives, structure and content correspond to the principle of consistency and lay a foundation for a new generation of EU’s external agreements which form a new type of integration without membership, with all legal complexities this entails. Heterogeneity of the implementation of the AAs (delay of implementation of the Title on DCFTA in the EU-Ukraine AA due to deal reached with the Russian Federation) poses considerable problems for the course of effective application of the 232

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AAs in national legal systems. Nevertheless the conditionality of the AAs should contribute to the consistency in the course of their effective and efficient application and implementation. The AAs’ provisions on legislative approximation do not cover the field of human rights and common values. However the AAs contain some mechanisms which may potentially enhance the impact of human rights and common values on the legislative approximation. In our opinion it may happen via three scenarios. They are: 1) introduction of either a new approximation clause or amendment of the Annexes in the field of Human Rights; 2) encouragement of the governments of Ukraine, Moldova and Georgia to enhance the level of protection of human rights following results of annual monitoring of the implementation of the AAs; 3) voluntary application of the EU acquis in the field of human rights by judiciaries in Ukraine, Moldova and Georgia. Therefore it can be argued that further evolution of the AAs in the field of human rights and common values will depend on their effective implementation and application by national authorities and judiciaries.

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Global Constitutionalism and Social Rights : A Few Notes on Human Rights in the Quest for a Substantive Rule of Law1 Rui Guerra da Fonseca

Abstract The debate on the nature of social (and economic) rights has been going on for decades in constitutional theory: are they fundamental rights, or something else (or less)? This debate transpired into international human rights law, with specificities, though, related to the sources of international human rights and the affirmation of the principle of indivisibility. The fact is that social rights are at the genetic moment of birth of modern international human rights law and were always seen in that context as an essential part of it. Assuming there is a global constitutionalism dynamics or tendency, regardless of the actual frame and completion of that proposal, and that global constitutionalism—as any constitutionalism—must find its own legitimacy, it is argued that such legitimacy cannot dispense with social rights as an essential element of a substantive rule of law. In other words, for global constitutionalism to be ‘constitutional’ it must stand on human rights and specifically on social rights as an essential part of the latter. I. The Role of Social Rights in the Context of Human Rights On August 14, 1941, President F. D. Roosevelt and Prime Minister W. Churchill issued a joint declaration that would craft the future of the western world: the Atlantic Charter. This document, though not a treaty, and therefore not binding as such, enclosed a vision on the conditions of a future peace: among others, the United States of America and the United

1 This text supported my participation as a guest speaker at the Ljubljana – Augsburg 2nd Conference on Contemporary Issues of International Law, on the 23rd June 2014. Since this was held as a presentation, the colloquial tone has generally been maintained.

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Kingdom would “endeavour with due respect for their existing obligations, to further enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity”, desiring “to bring about the fullest collaboration between all nations in the economic field, with the object of securing for all improved labour standards, economic advancement, and social security”2. “After the final destruction of Nazi tyranny”, both countries hoped “to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want”. President Roosevelt’s speech before Congress, on January 11, 1944, commonly seen today as a proposal for a ‘Second Bill of Rights’, was not the first step on that proposal —far from it; nor a product of a late thinking on the matter, already motivated by the possible outcome of the war. It was actually a re-affirmation of a way to a social peace project: first of all, individual peace as security, which would have a collective impact deemed absolutely necessary if a social and political peace was to endure;3 but also an international peace. It must not be disregarded that the Atlantic Charter saw the light of day months before the US officially entered the war, which would only happen in December 1941. A large US sector still

2 As Cass R Sunstein puts it, ‘[t]his clause strongly indicated a commitment to social and economic rights’, (see The Second Bill of Rights: FDR's Unfinished Revolution —And Why We Need It More Than Ever, (Basic Books 2006) 85). 3 Roosevelt took office on the 4th of March 1933, and within the first hundred days of his mandate the Federal Emergency Relief Administration had already been created by a bill providing $500 million to the states for relief efforts and temporary employment. This doesn’t mean Roosevelt’s project was a systematic one in the sense of a deeply rooted theoretical background, but it certainly corresponded to a strong system of beliefs anchored at the observation of peoples’ needs in light of his own personal experience, a very powerful combination (on all these aspects, see Cass R Sunstein (n 2) 46, 65-66, 77 ff.; The creation of multiple agencies in Roosevelt’s time shouldn't be regarded as a symbol or proof of an excessively interventionist state: the creation of agencies in the US goes back to the first legislature (the first one was created to grant pensions to revolutionary soldiers) and to the debate between Alexander Hamilton and Thomas Jefferson involving the creation of a national bank that would lead to McCulloch v. Maryland 17 U.S. 316 (1819) and the necessary and proper clause question (see Lawrence Tribe, American Constitutional Law, I (3rd edn Foundation Press 2000) 798 ff.; also Jerry L Mashaw, Creating the Administrative Constitution (Yale Univ. Press 2012) 124 ff.

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felt the moral weight related to the fall of the League of Nations, in no small part a consequence of the United States’ Congress refusal to ratify the corresponding treaty, thus making Hitler’s ascension easier, and creating the doubt upon what the world could have been otherwise. Would World War II have began if the US were part of the League of Nations? Would human dignity have suffered such a deep blow? It seems it was not an ‘accident’ or simply a matter of contextual convenience though that Roosevelt’s speech before Congress assumed a certain vision of / for the world. By 1945, it had become evident – if not ‘self-evident’, like in the 1776 Declaration of Independence – that never again could it be maintained that human beings were placed, by law, under the exclusive jurisdiction of their home state: still in Christian Tomuschat’s words, the fate of the individual had definitively become a matter of international concern.4 This was —and still is, more and more— one of the main ideas underlying the so called International Bill of Human Rights (IBHR), its core being formed by the Universal Declaration of Human Rights (UDHR, 1948) and the two Covenants (1966), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The concern with social rights is identifiable in the IBHR as a whole. This concern was leveraged by the International Labour Organization (ILO), which was created still under the League of Nations, and the only organization that survived it, having a key role in the construction of the United Nations and the drafting of the IBHR. The UDHR contains some provisions regarding social rights: right to social security, dignity and development of personality in connection with social rights (Art. 22); right to work and related rights (Art. 23); right to rest and leisure (Art. 24); right to a standard of living adequate for one’s health and well-being of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond one’s control, as well as special care and assistance in motherhood and childhood (Art. 25); right to education, which shall be free at least in elementary stages (Art. 26). At the end, everyone is entitled to a social and

4 See Christian Tomuschat, Human Rights – Between Idealism and Realism (2nd ed, OUP 2008) 22-23.

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international order in which the rights and freedoms set forth in the UDHR can be fully realized (Art. 28). Of course the UDHR was drafted and approved by the UN General Assembly as a political document, not as a legally binding one (notwithstanding the discussion on its value as customary international law or jus cogens of some of its norms5). But the ICESCR and the ICCPR are treaties, binding as such, with optional protocols.6 On the other hand, at a regional level, social rights are also a matter of concern, though in more soft binding terms. Considering Europe alone, the European Convention on Human Rights (ECHR) doesn’t aim at the protection of social rights as such (though Protocol No 1 refers to the right to education in Art. 2). It is complemented by the European Social Charter (ESC), but the force of this document is very debatable in practical terms. The European Charter of Fundamental Rights (at the European Union level) refers to the right to social security and social assistance and health protection (Arts. 34 and 35), but with caution and deference to states’ le-

5 See Antonio Cassese, ‘A Plea for a Global Community Grounded in a Core of Human Rights’ in Antonio Cassese (ed), Realizing Utopia: The Future of International Law (OUP 2012) 136 ff.; Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988) 12 Australian Year Book of International Law 84 ff. In Portuguese, see Ana Maria Martins, Direito Internacional dos Direitos Humanos (Almedina, Coimbra 2011) 92 ff.; Eduardo Correia Baptista, Jus Cogens em Direito Internacional (Lex 1997) 396 ff.; idem, Direito Internacional Público, I, (Lex 1998) 133; André Gonçalves Pereira and Fausto de Quadros, Manual de Direito Internacional Público (3rd ed Almedina 1993) 282 ff. 6 Portugal ratified the Optional Protocol to the ICESCR (2008), which entered into force on 5 May 2013, establishing the mechanism of complaint to the Committee on Economic, Social and Cultural Rights by individuals claiming to be victims of violation of those rights, and other mechanisms, regarding the implementation of the ICESCR (see President’s Decree n.º 13/2013 of 21 January, and Parl. Resolution n.º 3/2013 – Diário da República, I-A, 21 January 2013).

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gal frameworks.7 Nevertheless, social solidarity is a key element of European constitutional law as whole.8 In a different context, the last decade has seen a significant increase on human rights’ relevance in areas like international trade and business, related to social rights. The concern about child labour at the WTO level is paradigmatic: it’s debatable if it constitutes an admissible restriction on international trade (that is, for a certain country to establish a restriction on the importation of goods manufactured by child labour – Art. XX GATT). But the prohibition of child labour presents the closest relation with the right to education, for instance. Human rights and business are usually seen as two separate worlds, from a legal point of view.9 In terms of international law, it’s common to point out their different formal origin, reflecting on interpretation of legal instruments, leading to distinct solutions considering the point or perspective of departure: they belong to different systems. This perspective is not necessarily incorrect in itself, but might be insufficient and point to unsatisfactory results. On the one hand, it’s becoming more clear today the ideological basis of that separation when ‘business’ means ‘international free trade law’. On the other hand, public authorities tend to demand private corporations to respect human rights to a certain degree, which might be seen as an inconsistency considering the separation mentioned above. The idea of ‘governance’ plays a key role here, for the sake of understanding and standard setting in a relation that has already shown its artificiality. These very short words intend only to show that social rights are located at the heart of the international human rights’ legal system. It’s not being taken into account the level of real fulfilment of social rights by states

7 About this, see the various texts reunited in Part II of Manuel Terol Becerra and Luis Jimena Quesada (eds), Tratado Sobre Protección de Derechos Sociales (Tirant lo Blanch 2014) 207 ff. Also see Miguel Poiares Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights of the European Union’ in Tamara K Hervey and Jeff Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights— A Legal Perspective (Hart Publ 2003) 269 ff. 8 Connecting solidarity and social rights, see E Riedel in ‘Discussion Following the Presentation by Philipp Dann’ in Rüdiger Wolfrum and Chie Kojima (eds), Solidarity: A Structural Principle of International Law (Springer 2010) 88 ff. 9 See Ernst-Ulrich Petermann, ‘Human Rights and International Trade Law: Defining and Connecting the Two Fields’ in Thomas Cottier, Joost Pauwelyn and Elisabeth Bürgi Bonanomi (eds), Human Rights and International Trade (OUP 2005) 29 ff.

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parties to international legal instruments which protect those rights (to put it correctly in terms of legal theory, the levels of respect, protection and fulfilment, the three elements or categories of obligations that the Economic, Social and Cultural Rights Committee conceived as a tridimensional model of states’ obligations, in its General Comment No. 12, 1999, on the right do adequate food10). This test of fulfilment or of non-violation is not required for confirmation of the civil and political rights position in the international human rights’ legal system anyway.11 Nevertheless, one should keep in mind that the ICESCR entered into force on January 3, 1976, and has already 162 state parties; the ICCPR entered into force a couple of months later, on March 23, 1976, and has 168 states parties: so the discrepancy in the number of states parties is not the most relevant for a conclusion on the importance states parties grant to both covenants;12 but the entering into force dates differentiation, though irrelevant in itself, confirms a political reality: it was actually more difficult to bring many states to accept the second than the first of these covenants. President Roosevelt’s speech on January 11, 1944 —and the Atlantic Charter before it— stands as a fundamental political momentum of this international human rights’ legal systematization. Of course originally it had a very strong domestic aim or meaning, as Cass R. Sunstein exhaustively explains in his already cited work13: the ‘second bill of rights’ owes its reference to the first one, the first ten amendments to the US Constitution, protecting civil and political liberties which were absent from the original version of 1787. But the international impact of the speech authorizes that affirmation. One might actually say this capacity to generate impact in the

10 See e.g. Stefan Lorenzmeier, ‘Enforcement of Transnational Social Rights: International and National Aspects’, in: Andreas Fischer-Lescano and Kolja Möller, Transnationalisation of Social Rights (Intersentia, Antwerp 2016), p. 87 ff. 11 As Amartya Sen puts it in responding to the ‘feasibility critique’, ‘[n]on-realization does not, in itself, make a claimed right a non right’ – see Allen Lane, The Idea of Justice (Penguin Books 2009) 384. 12 Considering the ratification of both Covenants by ‘almost the totality of the world’s states’ as an element indicating the recovery of the original 1948 consensus regarding the UDHR (sustaining a principle of indivisibility of human rights), see Guillermo Escobar Roca, ‘Indivisibilidad y derechos sociales: de la Declaración Universal a la Constitución’ in Manuel Terol Becerra and Luis Jimena Quesada (eds), Tratado sobre proteccion de derechos sociales (Tirant lo Blanch 2014) 76. 13 N2.

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field of human rights ‘ran in the family’: let us not forget that Eleanor Roosevelt – President Roosevelt’s wife – chaired the commission which drafted the UDHR, and was one of the main activists ever in this field (it’s fair to say that the UDHR wouldn’t have seen the light of day, at least so soon, if it wasn’t for her). The incorporation of social rights in the fundamental / human rights’ core thus owes a lot to President Roosevelt. Originally, it was an affirmation of a political criterium of justice. This dimension will never be to much emphasized: for what President Roosevelt’s speech expresses is an idea of justice and the absolute necessity of its practical implementation as a condition for peace. But not just ‘any peace’ or a ‘pax americana’ as President J. F. Kennedy would say years later. Instead, a lasting peace, because standing on an idea of justice with universal potential (not a dream world everlasting peace, standing on abstract patterns of a world order). Or is not freedom from want, together with freedom from fear, part of a potential universal idea of justice, a new doctrine valid for “everywhere in the world”, as President Roosevelt himself suggested four times in his State of the Union Address to Congress, on January 6, 1941?14 Then we enter the discussions on what social rights really are in terms of their legal nature; on what obligations do or should states parties (public powers) have in the face of legal instruments protecting social rights; on the architecture of protection mechanisms (communications, complaints, inquiries, and their consequences).15 It can even be discussed if social rights are actually rights or some other type of legal claims (like ‘constitutive commitments’, as suggested by Cass R. Sunstein)16. All these debates are related to a fundamental problem: the dependency of social rights on economical and financial resources. This is of course a matter of scarcity. Usually, it’s pointed out that social rights depend on economical and financial resources to a much greater extent than civil and political rights: e. g., a social security system or a public health system require a greater deal of that kind of resources than a voting system even if a very sophisticated one. It can be argued that the comparison lacks accuracy because a social security system could only be compared with an equal complex system, which would in that case be the

14 See Antonio Cassese (n 5) 137. 15 See Viktor Abramovich and Christian Courtis, Los derechos sociales como derechos exigibles (Trotta 2002). 16 See Cass R Sunstein (n 2) 61 ff.

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representative democratic system (and not simply the voting system, which is a small part of the latter).17 But in any case it should be generally considered—not axiomatically accepted—that social rights claim for economic and financial efforts of a wider dimension, or at least of a different flow, than civil and political rights (some of these do not imply any economic and financial effort whatsoever18; that isn’t the case with social rights). Social rights bring objectiveness to the idea of peace through freedom from want, supported by the international human rights’ legal system. This peace is not only the opposite of armed conflict, but peace as security which ‘means a kind of feeling within our individual selves that we have lacked through all the course of history’ in President Roosevelt’s words.19 II. Social Rights and Global Constitutionalism It might seem, given the above, that domestic constitutionalism(s) is not getting the proper attention in the context: in fact, social rights depend on states’ economical and financial resources as much as on each state’s domestic constitutional system (not necessarily constitutional expression: the German case is an example of a constitutional system— to put it very simplistically— where social rights are not positively enunciated in the constitution as a ‘bill of social rights’, deriving their protection from the Bundesverfassungsgericht’s jurisprudence20). Evidently, this relation cannot be neglected. But that’s exactly why domestic constitutionalism must be regarded in the light of its own current or contemporary dependencies, insufficiencies and connections. In what comes to social rights as well, the fate of the individual has definitively become a matter of international concern21: this is so in legal terms, but also

17 This type of argumentation is somehow in line with Amartya Sen’s response to the ‘feasibility critique’ – see above (n 11). 18 It would be cynical to argue that not torturing people to obtain intelligence or other kinds of information amounts to economic and financial efforts to obtain that same information by other costlier means. 19 See Cass R Sunstein (n 2) 90-91. 20 Nevertheless, the German Constitution qualifies the German State as a federal, democratic and social one (Art 20(1)). See also D Hofmann, ‘International Human Rights and their Enforcement in the German Legal Order’, p. 89 ff. in this volume. 21 See above.

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and because the scarcity of economical and financial resources necessary to support social rights can no longer be addressed by strict domestic constitutionalism, so to speak. It could seem so when the focus is placed on countries with more stable economical and financial capability, and this is not incorrect to a certain point. The question is that such capability relies to a great extent on international markets and relationships between countries. Without the element of international trade and international financial markets, those (hypothetically) focused countries cannot be realistically outlooked. And without considering the relationships between countries and international organizations, the picture will only apparently be sharp. From another perspective, power, which constitutionalism was quintessentially born to control, cannot be apprehended by constitutionalism if its perspective is not broadened. Global constitutionalism is a very debatable idea. Even its existence — as a valuable (though debatable) idea— is largely questioned and put down, sometimes even with sarcasm. The most problematic term is the first one —‘global’— because it intends to qualify a traditionally domestic reality of the theory of the state, taking it to a dimension so distant from the latter —as argued by many— that it no longer preserves its minimum significance. In other words, if there is no ‘global state’, nor is its existence realistically foreseeable, then there is no place for ‘global constitutionalism’ and any discussion around it has no scientific nor useful grounds. There are large sectors of legal doctrine supporting an opposite vision, though. Observing global or pre-global phenomena of the same nature as domestic phenomena traditionally addressed by state constitutionalism, they argue that the legal framework must be adapted to those realities, thus putting forward global constitutionalism as a hypothesis that cannot be overlooked in our time. Among those global or pre-global phenomena, two are particularly appealing: global governance, and global norms.22

22 The literature is vast. Considering a great division of four schools of thought in this matter – social constitutionalism, institutional constitutionalism, normative constitutionalism, and analogical constitutionalism – see CEJ Schwöbel, Global Constitutionalism in International Legal Perspective (Martinus Nijhof Publishers, Leiden 2011) 14 ff.

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The first one emphasizes the globalization of political power: not only it doesn’t rest solely on the state or even mainly at the state level anymore,23 but it suffers also a common effect of globalization: it’s difficult to say where it rests and to identify its actual owners. Nevertheless, political power forms a net with global objectives or better, a global logic (not a global purpose, as commonly sustained by conspiracy theories). Thus, if power goes global, so must the main theoretical framework designed to control it: constitutionalism. The second one is the formation of a body of legal rules and principles with global or pre-global value. This perspective is probably more interesting for legal scholars (and puts the first one, of global governance, in context). The global or pre-global value of this legal body is not specifically determined by the classic canons of legal theory on sources of law. Instead, it’s the conjugation of those canons with the substance of the rules and principles in question that ‘reveals’ the legal body in question. Which legal instruments are parts of this body? The most commonly pointed out is the UDHR: a simple resolution of the General Assembly of the UN, with global vocation in spite of its consideration from the sources of law point of view (its qualification as customary law is not irrelevant, but only a topic among others). Another example is the UN Convention on the Law of the Sea (UNCLOS): already called ‘the constitution of the oceans’,24 it stands on principles of liberty and protection of the common heritage of mankind, which grant it a similar global aiming (here to, it’s not irrelevant that many of its rules are considered customary law). Still another example is the WTO legal system: the principles there enclosed and the reality they discipline, which is naturally global – international trade – make the WTO legal system a good candidate for this global legal body25. This is not the time to discuss global constitutionalism’s validity as a theoretical model. It must be recognized, however, that it encompasses an essential idea or even better, a fundamental function: the control of politi23 As Joel P Trachtman puts it, ‘[w]hereas the supra-state forms of cooperation that will be necessitated will not equate to a world state, a clear-eyed view must recognize that they are a form of government’ (see The Future of International Law (CUP, Cambridge 2013) 11. 24 Expression attributed to Tommy TB Koh, the chairman of the III United Nations Conference on the Law of the Sea (UNCLOS). On the UNCLOS see e. g. Alexander Proelß (ed), UNCLOS, A Commentary (Nomos, Baden-Baden, 2017). 25 See e.g. Deborah Cass, The Constitutionalization of the World Trade Organization (OUP, Oxford 2005).

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cal or governmental power. If the latter surpasses the sphere of the state, so must constitutionalism if it intends to keep its function. Otherwise, constitutionalism will be reduced to a partial theory, adequate only to a certain level or levels of political or governmental power. There is a priori no certainty as to the identity between global constitutionalism’s and domestic constitutionalism’s main assumptions. But one of their most important functions seems to be identical: the control of political or governmental power. This is where global constitutionalism and social rights find an important point of intersection, at least hypothetically and calling for consideration. Let us set aside the inclusion of the UDHR (that is, as a legal instrument formally considered as such) as part of the above-mentioned global body of rules. Even so, fundamental rights cannot logically be expelled from that legal body, for the control of power stands not only on an organic architecture. This control is not simply ‘order’ but a certain kind of order, which expresses the difference between ‘quietness’ and ‘peace’: a ‘peaceful order’ demands general criteria of justice, while a ‘quiet order’ dispenses with such criteria (at least as general criteria, thus hampering them as criteria of justice). That is to say there is no actual control of power, in that sense, without substantive rule of law; and substantive rule of law stands fundamentally on rights, not on organic models.26 And in this context, do social rights have a place among other fundamental rights, or not? A negative answer is of course possible if these entitlements27 are denied as rights, or as fundamental (rights). The question is if that negative answer, even if logical in itself—which is to say, according to its own or a certain fistful of grounding assumptions— is actually satisfying. The detailed consequences of a positive answer are not at stake here (as are not the detailed consequences of global constitutionalism). The point is —going back to President Roosevelt’s speech— if ‘freedom from want’ (to cut it short) should be considered as standing point (or a ‘starting point for reasoning’, to use R. Pound’s saying) within a substantive rule of law,

26 Though it’s questioned even by ‘global constitutionalists’ that separation of powers could be seen as a canon or principle of global constitutionalism, the idea above can be illustrated as follows: separation of powers, as an organic matter, is an instrument for the protection of rights, not standing on itself. 27 On the relevance of this concept, see Amartya Sen, Development as Freedom (OUP, Oxford 1999) 66 and 162 ff.

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and thus as fundamental element for the control of power at a global level (or simply a supra state level). As F. Mégret puts it, human rights are revolutionary28: they question power and are always on the watch. As rights, they protect individuals or groups, but always having an eminent or radical connection with the ‘person’ as an individuality.29 Institutionally speaking, they are a product of culture, thus reflecting a way of life and expectations deriving from it. They are, in this sense, protective and prospective, and cannot be read out of a community context30 always following certain standards of living. In our time, these standards call for realities associated with what we usually name as social rights. This whole relation can be analysed from many points of view: let’s take the one of legitimacy, which is a main topic in what comes to global constitutionalism. The hypothesis can be formulated as follows: does the legitimacy of global constitutionalism’s (intention of) control of governmental power rest on social rights? III. Substantive Legitimacy and Social Rights Drawing inspiration from M. Weber’s writings, if the 19th century was dominated by economy, the 20th century was certainly the one of technology. President Roosevelt’s speech was given at a time when anything was beginning to be possible: the technological future would hale a new way of life, and a more extended one. On the European side of the Atlantic, the Charter it baptized produced its ‘social effect’ as well. In March, 1948, the Treaty of Brussels sets on Churchill’s inspiration to replicate at the European level what the UN intended to be at a global one, followed by the creation of the Council of Europe in 1949. The European Communities are themselves a true political project – not a simple economic one – to achieve an enduring peace through economic relations. As Aristotle and Montesquieu wisely pointed 28 See Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law (OUP, Oxford 2010) 125. 29 This constitutes the ground for a serious debate in the field of human rights as to who is actually entitled to their protection (only individuals, or also groups, and corporations?). 30 This is partially why H. Arendt strongly questioned the idea of human rights with global vocation, for there was – in her view – no global community.

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out, commercial relations are an essential element of union, and thus a condition for peace. But the ‘European project’ was originally strongly inspired by Churchill’s perspective on ‘the social’, which was in a way well condensed in the Beveridge Plan. In 1961, the European Social Charter was approved, entering into force in 1965 (with a profound revision in 1996). Progressively, ‘the social question’ began to be introduced in the constitutional elements of the European Union to be. On the other hand, at the international level, a principle of indivisibility of human rights dominated the atmosphere more and more, blurring the distinction between civil and political rights, and economic, social and cultural rights. This principle – debatable, still today – also has in President Roosevelt’s speech a very important basis, and was reaffirmed in multiple occasions (e.g., the Tehran Proclamation of 1968, at the first international conference on human rights; in Vienna, 1993, at the second international conference; at the World Summit, in 2005; in the UN General Assembly’s resolution of 2006 which created the Human Rights Council).31 Let us not forget this ambience was already crowned by Art. 28 of the UDHR, mentioned above, according to which everyone is entitled to a social and international order in which the rights and freedoms set forth in the UDHR can be fully realized.32 It is true that the western states, along with some Latin American states, rejected the inclusion of the idea of a “democratic and equitable international order” in General Assembly’s Res. 61/160, of 19 December 2006, and that all the relevant resolutions referring to the negative impact of globalization on human rights were approved without the vote of the western states.33 But this is probably not due as much to a changing atmosphere regarding social rights, as to their globalization. Which brings us to the point.

31 See Theo van Boven, ‘Categories of Rights’ in Daniel Moeckli, Shah Sangeeta and Sandesh Sivakumaran (eds), International Human Rights Law ‘(OUP, Oxford 2010) 173 ff.; F. Sudre, Droit européen et international des droits de l’homme (10th edn PUF, Paris 2011) 213 ff. 32 On Art 28 as an implicit source of the right to development, see Khurshid Iqbal, The Right to Development in International Law. The case of Pakistan (Routledge, London and New York 2010) 48 ss. 33 See Christian Tomuschat, Human Rights (OUP, Oxford, 3rd ed 2014), 61 and 65.

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At an international or supra state level, democratic legitimacy has to deal with questions already marginal, generally speaking, at the state level. Most state representatives in international organizations have not a direct democratic legitimacy, but only indirect, through their appointment by political representatives with a direct democratic legitimacy. Certainly, something like this happens at the domestic level with agencies and other public bodies: but in these cases, at the end, there are political representatives that can be accountable. This kind of accountability is much more difficult when it comes to international organizations’ options and actions, because by definition it would have to be exercised at the domestic level in all states involved. On the other hand, not all international organizations’ actions which would theoretically be suited for that kind of accountability are taken or decided by states’ appointed representatives, thus creating a void of accountability.34 There are of course many other questions involved in this matter which cannot be addressed here, or even enunciated. The proposal of global constitutionalism is the establishment of a substantive rule of law that might constitute a pattern of substantive legitimacy through the rule itself, thus limiting power. The norm is limit and legitimacy at the same time. Surely all kinds of realist arguments can be opposed to such a proposal, but it must not be forgotten that in means no less than re-entering the debate on coercion as an essential element of the law. Are social rights a component of this substantive rule of law? Have they a legitimizing effect without which this substantive rule of law cannot be said to be complete? Social rights have been in the core of European constitutionalism since even before the mid-20th century. The reality of the US is different, but even though the US as no catalogue of social rights in its constitution, it signed (but not yet ratified) the ICESCR; anyway, it cannot be said that American law disregards social rights. Also, freedom from want became an axiom of International Human Rights Law, with deep influence on the global constitutionalism proposal: after all, it stands as an expression of a

34 On this and related issues, see Eyal Benvenisti, The Law of Global Governance (AIL-Pocket 2014) passim.; Frank Vibert, The Rise of the Unlected – Democracy and the New Separation of Powers (Cambridge 2007) 144 ff.

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‘worthwhile life’,35 which materializes a certain perspective of human dignity. And that perspective has been driving political legitimacy at the domestic level. This is not a mere perspective of prosperity, though prosperity has become a very important variable of political legitimacy (it can even be said that prosperity has become a central political claim, to which political parties try to respond as it constitutes a fundamental electoral element or advantage: political parties that do not promise prosperity, in one way or another, cannot aspire to a majority). It is instead a perspective of solidarity, of what one wants not only for himself but also for one’s community, for one’s neighbour. This is an important political element of connection and actually corresponds to a vision of society (which supports many angles, according with philosophical, legal and political conceptions, namely on social rights and their nature and limits). In the light of International Human Rights Law, it’s clear that social rights belong to the core of the IBHR. The function of the IBHR is not primarily a legitimizing one, but when global constitutionalism calls the IBHR to its architecture, through the UDHR, it also adds other functions to legal rules: legitimization in the practical exercise of power is one of them. Global constitutionalism is strongly influenced by historical proposals such as Kant’s universal republic. Thus it’s not surprising that global constitutionalism searches for universal principles and rules that can support it in substantive terms. But this support cannot be searched for without references of time, for without these references it might justify global constitutionalism as a rational theoretical proposal, but not as a juridical and political feasible project. Social rights are also a time reference, and thus a political one as well: that’s why they can be seen as a substantive source of legitimacy along with other rights; because they express an idea of fundamental justice that is not a quimera: and that idea as already begun to be historically materialized, which makes all the difference.

35 The expression belongs to James Griffin though I do not agree with all its implications as a moral and juridical concept – see On Human Rights (OUP, Oxford 2008) passim.

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Right to Development: Driver for Extraterritorial Application of Economic, Social and Cultural Rights Maša Kovič Dine

Abstract The paper addresses the question whether the right to development as a third generation human right may foster the extraterritorial application of economic, social and cultural rights. The right to development as enshrined in the 1986 General Assembly Declaration on the Right to Development calls for recognition of a shared responsibility for respect of human rights around the globe. However, due to the lack of conceptual clarity of the right to development, its normative validity has been greatly affected and many scholars believe it is merely a failed attempt to improve human rights and fundamental freedoms in developing states. Such assertions contradict recent developments within the Human Rights Council calling for the adoption of a legally binding document, which indicates that the right to development is still an evolving concept and, as argued in this chapter, has the potential to foster the extraterritorial application of economic, social and cultural rights. Namely, the right to development has a corresponding obligation of the developed states to ensure the enabling environment for people in developing states to exercise their economic, social and cultural rights. I. Introduction While having a noble intention, the recognition of the right to development and the adoption of the 1986 General Assembly (GA) Declaration on the Right to Development1 has as such improved the lives of few, if any, people in the developing world. Many scholars argue that the reason for

1 UNCHR Res 1998/72 (1998) UN Doc E/CN.4/1998/72.

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this may be found in the lack of its conceptual clarity.2 The right to development as adopted by the GA in 1986 is defined as: “an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”3

The lack of a clear conceptual framework of the right to development has led to varying interpretations of the meaning of the right, its normative value and justiciability. Nevertheless, the right to development has become a staple in the modern discourse on human rights and the new economic order and cannot be simply dissolved or put aside.4 The former Judge of the International Court of Justice, Mohammed Bedjaoui, even claimed that the right to development is “the precondition of liberty, progress, justice and creativity, it is the alpha and omega of human rights, the first and last human right, the beginning and the end, the means and the goal of human rights...”.5 However, the author agrees that for its justiciability a clear conceptual framework would need to be adopted. Nevertheless, the right, as it currently stands, has important implications on other recognized human rights and their implementation. Part two of the paper addresses the latest developments in international law concerning the right to development. The focus is on the work of the Human Rights Council and its High-Level Task Force on the Implementation of the Right to Development (from now on referred to as "HLTF"). Part three illustrates the internal and external dimensions of the right to development, as presented by the HLTF. Part four concludes with ques-

2 A Vandenbogaerde, ‘The Right to Development in International Human Rights Law: A Call for its Dissolution’ (2013) 31(2) Netherlands Quarterly of Human Rights 187, 188; see also ID Bunn, ‘The Right to Development: Implications for International Economic Law' (2000) 15(6) American University International Law Review 1425, 1435; NG Villaroman, ‘Rescuing the Troubled Concept: An Alternative View to the Right to Development’ (2011) 29(1) Netherlands Quarterly of Human Rights 13. 3 Declaration on the right to development, UNGA Res 41/128 (4 December 1986) UN Doc. A/RES/41/128. 4 B Manchak, ‘Comprehensive Economic Sanctions, the Right to Development, and Constitutionally Impermissible Violations of International Law’ (2010) 30(2) Boston College Third World Law Journal 417, 428. 5 M Bedjaoui, 'The Right to Development' in M Bedjaoui (ed), International Law: Achievements and Prospects (Martinus Nijhoff Press 1991) 1182.

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tioning the extraterritorial application of the rights enumerated in the International Covenant of Economic, Social and Cultural Rights (ICESCR) and delves in the question whether the presented current developments in international law support the argument that the right to development can be a driver in ensuring the extraterritorial application of the ICESCR. II. Core Norm of the Right to Development Ten years after the adoption of the GA Resolution on the Right to Development the Commission on Human Rights6 and the Economic and Social Council7 created the Intergovernmental Working Group on the right to development to initiate the implementation process. To specify the right to development and set the criteria for its implementation, the panel set up a special HLTF in 2004, mandated to address Goal 8 (Develop a Global Partnership for Development) of the Millennium Development Goals by creating criteria for improving the global partnerships in the realization of the right to development.8 The Human Rights Council has been considering the adoption of a legally binding document, once the HLTF clarifies the standards of the right to development.9 The most important result of the HLTF was the definition of the so called core norm of the right to development and three guiding attributes: 1) comprehensive and human centred development policy; 2) participatory human rights processes; and 3) social justice in development processes. This definition of the core norm now stands as the authoritative definition of the right to development and is believed by the majority of States and authors to be the most consolidated element of this right, as it is based on the current international human rights law.10

6 UNCHR Res 1998/72 (n 1). 7 Economic and Social Council Decision 1998/269 (1998) UN Doc. E/1998/269. 8 High-Level Task Force on the Implementation of the Right to Development, ‘The Right to Development and Practical Strategies for the Implementation of the Millennium Development Goals particularly Goal 8’ (20 September 2005) UN Doc. E/ CN.4/2005/WG.18/TF/2. 9 Human Rights Council, ‘The Right to Development’ (2011) UN Doc. A/HRC/18/ L.15 para 6(c); A Vandenbogaerde (n 2) 203. 10 A Vandenbogaerde (n 2) 192 f.

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The core norm of the right to development, as defined by the HLTF is: “The right of peoples and individuals to the constant improvement of their well-being and to a national and global enabling environment conducive to just, equitable, participatory and human-centred development respectful of all human rights.”11

The main element of this definition is the right to a national and global enabling environment that enables the enjoyment of all the other human rights. The creation of such an enabling environment is the obligation of all the States, as determined by Article 3 of the GA Resolution on the Right to Development.12 The enabling environment is an environment – economic, political, cultural and social – where people can realize their other rights themselves.13 However, the obligation to create an enabling environment is not new. In the preamble of the UN Charter, it calls for the creation of an enabling environment where conditions are set up to enable the respect for obligations arising from other international treaties.14 Similarly, the preambles of both the International Covenant on Civil and Political Rights (ICCPR)15 and the ICESCR16 declare the need to create an enabling environment and conditions where civil, political, economic, social and cultural rights are respected.17 Additionally, also regional and soft-law documents affirm the obligation to create an enabling environment.18 The obligation to create an enabling environment can thus be defined as the creation of an environment where people can realize their rights and lead the kind of lives they value.19 This means an environment that en11 High-Level Task Force on the Implementation of the Right to Development, ‘Right to development: Criteria and Operational Sub-Criteria’ (8 March 2010) UN Doc. A/HRC/15/WG.2/TF/2/Add.2. 12 Ibid art 3(1). 13 A Vandenbogaerde (n 2) 195. 14 Ibid 193. 15 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 16 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 999 UNTS 3 (ICESCR). 17 ICCPR and ICESCR Preamble. 18 The American Convention on Human Rights (1969) OAS Treaty Series No. 36, 1144, Preamble; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58, art 24; United Nations Millenium Declaration, UNGA Res 55/2 (2000) UN Doc. A/55/49 para 12. 19 A Vandenbogaerde (n 2) 195; NG Villaroman (n 2) 5.

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ables the people to an adequate standard of living, just and favorable conditions of work, access to education, and other rights. Hence, through the creation of an enabling environment, the right to development poses the obligation on States to ensure an environment where economic, social and cultural rights can materialize. Such understanding of the right to development recognizes the right as a collective right of a people and not as an individual right.20 The second important element of the HLTF’s definition of the right to development is the constant improvement and progressive realization of the economic, social and cultural rights. This means that the right to development does not have a defined and targeted result that needs to be achieved, but calls for constant and gradual progression of peoples’ wellbeing.21 A closer look at the core norm of the right to development hence illustrates a connection between the right to development and the ICESCR. Not only does the right to development form an obligation for the States to fulfill the economic, social and cultural rights of their peoples enumerated in the ICESCR, but also calls for a process of progressive realization of these rights. The right to development is thus an obligation of conduct, where the end result is not specifically defined, but can always be improved. There is no set standard of how the economic, social and cultural rights should be fulfilled, but the state should always do everything in its power to fulfill these rights and improve them even further.

20 NG Villaroman (n 2) 4. 21 A Vandenbogaerde (n 2) 198.

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III. Internal and External Dimension of the Right to Development The HLTF also confirmed the position of many other authors22 in stating that the right to development has an internal and external dimension23. It presented three levels of a State’s responsibility arising out of the right to development: i) the responsibility of the State to formulate national development policies and programs affecting persons within their jurisdiction; ii) the responsibility of the State to adopt and implement policies that affect persons not strictly within their jurisdiction; and iii) the responsibility to act collectively in global and regional partnerships to ensure fulfillment of the right to development.24 While the language of these responsibilities is quite vague and the HLTF has not provided any further clarifications on these levels, one can deduce the general direction of the HLTF’s thinking and reasoning. The first responsibility is the internal dimension, which covers the elementary obligation that the State has to fulfill all the existing human rights and create the enabling environment that enables the people to carry out the development process.25 The internal dimension is grouped together under one umbrella addressing the existing economic, social and cultural rights relevant for development, which are the substantive rights entailed in articles 1-15 of the ICESCR, especially article 11 on the right to the adequate standard of living.26 Thus, as such, the right to development has no particular importance for adjudication.27

22 Ibid; ID Bunn (n 2) 1440; K De Feyter, ‘Towards a Multi-Stakeholder Agreement on the Right to Development’, in SP Marks (ed), Implementing the Right to Development: The Role of International Law (Friedrich Ebert Stiftung 2008), 98; D Shelton, ‘A Response to Donnelly and Alston’ (1985) 15(3) California Western International Law Journal 524, 527; ME Salomon, 'Legal Cosmopolitanism and the Normative Contribution of the Right to Development' in SP Marks (ed), Implementing the Right to Development: The Role of International Law (Harvard School of Public Health/Friedrich Ebert Stiftung 2008). 23 Declaration on the right to development (n 3) art 3(1), 4. 24 High-Level Task Force on the Implementation of the Right to Development, ‘Right to development: Criteria and Operational Sub-Criteria’ (n 11) Annex. 25 ME Salomon (n 22) 2. 26 Committee on Economic, Social, and Cultural Rights, ‘Submission in Follow-up to Human Rights Council Resolution 25/15 “The Right to Development”’ accessed 29 October 2015. 27 A Vandenbogaerde (n 2) 203 f.

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However, an important value of the right to development lies in its external dimension, which covers the two remaining levels of responsibility exposed by the HLTF, addressing the obligation of a State to ensure the enabling environment for the people outside its territory.28 While developed and developing States have differing opinions on how to interpret the external dimension of the right to development, the former Chairperson-Rapporteur of the HLTF, Mr. Arjun Sengupta, noted in the Report of the Working Group on the Right to Development to the Human Rights Council, that in devising these responsibilities, the HLTF has been particularly attentive to ensuring the international enabling environment.29 Thus, the external dimension of the right to development creates an obligation for the international community to create an enabling environment for all peoples to realize their economic, social and cultural rights.30 Additionally, it also covers the obligation to refrain from any action that would create conditions that impair the establishment of the enabling environment.31 This responsibility is stronger for developed States, since the Economic, Social, and Cultural Rights Committee itself recognized, that the realization of the economic, social and cultural rights is particularly incumbent upon the States that are in the position to assist other States economically though various international cooperation programs.32 IV. Extraterritorial Obligations of States to Ensure Realization of Economic, Social and Cultural Rights The ICESCR, as the only legally binding document on economic, social and cultural rights, poses a general rule on the States Parties and obliges them to respect its rights only within its territory or within its jurisdiction. However, several States, as well as legal scholars believe that the human

28 Working Group on the Right to Development, UNGA ‘Report of the Working group on the Right to Development on its 11th Session’ (26– 30 April 2010) UN Doc. A/HRC/15/23 para 28; D Shelton (n 22) 527; ME Salomon (n 22) 11; A Vandenbogaerde (n 2) 201. 29 ‘Report of the Working group on the Right to Development’ (n 28) para 17. 30 Ibid 11, 39. 31 NG Villaroman (n 2) 23. 32 Committee on Economic, Social, and Cultural Rights, Fifth Session (14 December 1990) ‘General Comment 3: The Nature of States Parties’ Obligations (art. 2 para. 1 of the Covenant)’ (1990) UN Doc. HRI/GEN/1/Rev. 7 para 14.

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rights enshrined in the ICESCR carry an extraterritorial obligation. Namely, States are members of the international community and thus need to cooperate in dealing with issues of international character that extend national borders.33 Extraterritorial application of human rights law means that a State has obligations under its various human rights treaties that extend beyond its territorial boarders.34 The importance of extraterritorial obligations lies in the duty of States to respect human rights outside its territorial boarders and to prevent their hiding behind the veil of territoriality. Nevertheless, the extraterritorial application of ICESCR rights continues to divide States and legal scholars having differing and opposing opinions of the issue.35 Globalization has changed how economic, social and cultural issues are addressed calling for a reconsideration of the fulfillment of the ICESCR rights to fit these changes.36 For this reason some authors claim that the ICESCR may have an effect also beyond the borders of a State Party acting extraterritorially.37 Coomans and others argue that since the ICESCR does not have a jurisdiction clause, States have an obligation to also re-

33 M Giuffre, ‘Key Issues of the Optional Protocol on the International Covenant on Economic, Social and Cultural Rights and its Role in Challenging Systematic Poverty’ accessed 6 March 2016, 13. 34 NK Modirzadeh, 'The dark side of convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights Law in Armed Conflict' (2010) 86 US Naval War College International Law Studies (Blue Book) 349, 355 accessed 6 March 2016. 35 W Vandenhole, ‘EU and Development, Extraterritorial Obligations under the International Covenant on Economic, Social and Cultural Rights’ in ME Salomon, A Tostensen and W Vandenhole (eds), Casting the Net Wider: Human rights, Development and New Duty-Bearers (Intersentia 2007) 97; F Coomans, 'Some Remarks on the Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights’ in F Coomans and M Kamminga (eds), Extraterritorial Application of Human Rights Treaties (Insentia 2004) 199; M Giuffre (n 33) 13. 36 F Coomans, ‘The Extraterritorial Scope of the International Covenant on Economic, Social and Cultural Rights in the Work of the United Nations Committee on Economic, Social and Cultural Rights’ (2011) 11(1) Human Rights Law Review 1, 3; M Gibney and S Skogley, ‘Economic Rights and Extraterritorial Obligations’ in S Hertel and L Minkler (eds), Economic Rights: Conceptual, Measurement, And Policy Issues (Cambridge University Press 2007) 267, 268. 37 F Coomans (n 36) 4, M Giuffre (n 33) 14.

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spect economic, social and cultural rights of people outside their territory.38 This obligation is both negative and positive. The States have to refrain from violating the rights of individuals in other States, as well as to contribute towards the realization of the economic, social and cultural rights and thus alleviate human suffering and eliminate poverty abroad.39 An example of such extraterritorial application which is quoted regularly is the General Comment No. 1240 on the Right to Adequate Food of the Committee on Economic, Social and Cultural Rights (CESCR). The CESCR calls on the States to respect the enjoyment of the right to food in other States, without requiring any territorial jurisdiction or any other link between the two concerned States.41 Moreover, if a foreign State adopts an economic or food embargo against another State, it causes a great deprivation in that State and thus affects the economic, social and cultural rights of the citizens of that State indicating a violation of its obligations extraterritorially.42 Article 2(1) of the ICESCR calls on the States to “take steps, individually and through international assistance and cooperation, (…) to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.” This Article has been understood by many to indicate an extraterritorial scope of the ICESCR.43 As presented above, the CESCR has taken a similar view in few of its General Comments.44 However, the language used by the Committee in these General Comments on the obligations of extraterritorial fulfillment of the rights is

38 Ibid 6; K Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbildt Journal of Transnational Law 905, 939. 39 F Coomans (n 36) 4. 40 Committee on Economic, Social, and Cultural Rights, Twentieth Session (26 April – 14 May 1999) ‘Comment No. 12: The right to adequate food (Art 11)’ (1999) UN Doc. E/C.12/1999/5. 41 K Mechlem (n 38) 937. 42 M Giuffre (n 33) 14. 43 Ibid 7; A Khalfan, ‘Development Cooperation and Extraterritorial Obligations’ in M Langford and A Russell (eds), The Right to Water: Theory, Practice and Prospects (Cambridge University Press 2012) 3 f. 44 ‘General Comment No. 3: The nature of States parties obligation’ (n 32); Committee on Economic, Social, and Cultural Rights, Twenty-Second Session (11 May 2000) ‘General Comment No. 14: The right to highest attainable standard of health (Art. 12)’ (2000) UN Doc. E/C.12/2000/4; ‘General Comment No. 12: The right to adequate food’ (n 40); see also A Khalfan (n 43) 9 f.

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weak and vague and often inconsistent,45 leading to a conclusion that the notion of extraterritorial application of the ICESCR is still in its early developments. In addition, the International Court of Justice (ICJ) advisory opinion on the Legal Consequences of the Construction of a Wall on the Occupied Palestinian Territory46 did not clearly state that under the ICESCR, States have an obligation for extraterritorial fulfillment of its rights. The ICJ recognized that such obligation exists only where a State exercises territorial jurisdiction47 and not for areas outside such jurisdiction. Developing States such as African States, China, India, Indonesia and Iran have continuously stated, that Article 2(1) ICESCR contains a legally binding obligation of international cooperation and assistance to developing countries.48 This position is confirmed by some authors who believe that Article 2(1) ICESCR calls on States to realize the economic, social and cultural rights for all peoples living within the States, as well as outside its borders.49 Since international cooperation and assistance has been seen by the majority of States as the most effective solution for reducing poverty and ensuring economic development for all, the common realization of economic, social and cultural rights is the tool to achieve this goal.50 One of the latest attempts addressing extraterritorial application of the ICESCR are The Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social, and Cultural Rights (Maastricht Principles),51 adopted by a group of experts in international law and human rights lead by the International Commission of Jurists and the Maastricht University. The Maastricht Principles, which are of soft-law nature, provide the explanation for the extraterritorial application of the ICESCR. Principle 29 confirms that “States must take deliberate, concrete, and targeted steps, separately, and jointly through international cooperation, to

45 K Mechlem (n 38) 936, 938. 46 Legal Consequences of the Construction of a Wall on the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports 2004, 136. 47 Ibid para 112. 48 A Khalfan (n 43) 4. 49 Ibid 5. 50 Ibid 5 f. 51 ETO Consortium, 'Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social, and Cultural Rights', accessed 20 October 2015.

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create an international enabling environment conducive to the universal fulfillment of economic, social, and cultural rights.”52 The Maastricht Principles pose responsibility on the States to ensure the fulfillment of the core norm of the right to development – the enabling environment – to enable the fulfillment of the economic, social and cultural rights also extraterritorially. Additionally, several international organizations53 also recognize the extraterritorial application of economic, social and cultural rights in their internal documents, calling for the creation of an international enabling environment to ensure respect for certain rights from the ICESCR. However, the attempts to ensure extraterritorial application of the economic, social and cultural rights have been meet with opposition both by legal scholars54 and by the majority of States55. Especially, developed States like Canada, France, Portugal, UK and Czech Republic have claimed that international cooperation and assistance is just a moral obligation56 and that ICESCR imposes on them no extraterritorial obligations. Nevertheless, the lack of States’ willingness to ensure respect for economic, social, and cultural rights extraterritorially can be overcome with ensuring the respect for the right to development. While the right to development has been adopted by a GA Declaration, it is “at the very least, on the threshold of acceptance as a principle of positive international law.”57 Namely, the GA declarations and resolutions can be considered as “authoritative elaborations of existing legal norms as understood by States.”58 Some authors even regard the right to development as a customary international law norm,59 relying on the belief that GA resolutions are evidence of binding international law on the grounds that they are either authentic interpretations of the UN Charter as agreed by the States, affirmations of

52 Ibid Principle 29. 53 Food and Agriculture Organization (FAO), 127th Session of the FAO Council (November 2004) ‘Voluntary guidelines to support the progressive realization of the right to adequate food in the context of national food security’ accessed 20 October 2015; see A Vandenbogaerde (n 2) 207. 54 A Vandenbogaerde (n 2) 208; A Khalfan (n 43) 5. 55 F Coomans (n 35) 34 f. 56 Ibid 3 f. 57 ID Bunn (n 2) 1436. 58 NG Villaroman (n 2) 7. 59 Ibid.

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recognized customary law, or expressions of general principles of law recognized by civilized nations.60 Villaroman thus argues, that the right to development is a right of customary international law, as it is an umbrella principle of international law borne out of international economic law and international human rights law, thus consolidating into a single right certain fundamental norms, which are already in existence and considered as customary law, like the right to self-determination and sovereignty over natural resources.61 Similarly, others argue, that there are commonalities between the Universal Declaration of Human Rights and the Declaration on the Right to Development, giving the latter the ability to mature into a binding “International Bill of Developmental Rights”.62 Whether one supports this last contention on the customary law character of the right to development or not, it has to be recognized, that today the acceptance of the right to development is so high, that its legitimacy cannot be questioned anymore.63 Over the last decades, it has attained a wide endorsement from the community of States and has been reiterated in numerous international policy decisions and even in regional human rights instruments.64 Its normative value is stronger than the recognition of extraterritorial application of the ICESCR. Since it has been widely recognized that the internal dimension of the right to development covers the application of the rights entailed in articles 1-15 of the ICESCR on the territory of the concerned State and the external dimension calling for their respect beyond the State’s borders. Hence, it can be concluded, that the right to development per se requires that States extraterritorially respect

60 O Schachter, ‘The UN Legal Order: An Overview’ in O Schachter and CC Joyner (eds), United Nations Legal Order (Press Syndicate of the University of Cambridge 1995) 4. 61 NG Villaroman (n 2) 14. 62 U Baxi, ‘Normative Content of a Treaty as Opposed to the Declaration on the Right to Development: Marginal Observations’ in SP Marks (ed), Implementing the Right to Development: The Role of International Law (Friedrich-Ebert-Stiftung 2008) 47. 63 Ibid; RN Kiwanuka, 'Developing Rights: The UN Declaration on the Right to Development’ (1988) 35(3) Netherlands International Law Review 257, 271; P Alston, ‘Development and the Rule of Law: Prevention vs Care as a Human Rights Strategy’ in International Commission of Jurists (ed), Report of a Conference Held in The Hague on 27 April – 1 May 1981 (Pergamon Press 1981) 106. 64 U Baxi (n 62) 47 f.

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the rights enumerated in the ICESCR. Thus, it acts as a driver for extraterritorial application of the basic economic, social and cultural rights. However, the emphasis has to remain on the word driver for extraterritorial application. Namely, the right to development is not a substitute for extraterritorial application of economic, social, and cultural rights. Even under the external dimension of the right to development, States have the fundamental obligation to fulfill the core norm of the right to development, as emphasized by the HLTF, i.e. to ensure the conditions for an enabling environment where people can exercise their economic, social, and cultural rights.65 V. Conclusion Regardless whether one recognizes that the right to development has a customary legal nature or not, it has significant normative value, as has been confirmed by the majority of States.66 The work of the HLTF has influenced this support, by conceptualizing the right to development. The most important contributions have been the definition of the core norm and the characterization of internal and external responsibilities of the right to development. The core norm calls for the creation of an enabling environment for the fulfillment of economic, social and cultural rights both within the territory of the concerned State, as well as beyond the State borders. Thus, the right to development requires from States to contribute to the international community as a whole and create all around the planet an environment, which is conducive for the respect of economic, social and cultural rights as enshrined in the ICESCR. The right to development does not directly establish an obligation for the respect of the rights enumerated in the ICESCR extraterritorially, but acts as an intermediary between the ICESCR, States and the population in foreign, mostly developing States. Therefore, the right to development can be considered as a driver for extraterritorial application of the ICESCR. As the extraterritorial application of the ICESCR is not yet overwhelmingly recognized by the international community, the right to development

65 NG Villaroman (n 2) 32. 66 U Baxi (n 62) 47 f.

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can already ensure that the economic, social and cultural rights enshrined in it are implemented internationally.

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The Role of the Olympic Movement in the Promotion and Protection of Human Rights Daša Bajec Korent

Abstract The Olympic Movement includes the International Olympic Committee (hereinafter IOC), the International Sports Federations (hereinafter IFs), the National Olympic Committees (hereinafter NOCs), the Organising Committees of the Olympic Games (hereinafter OCOGs), the national associations, clubs and persons belonging to the IFs and NOCs and other organisations and institutions as recognised by the IOC. Belonging to the Olympic Movement requires compliance with the Olympic Charter. The Olympic Charter contains many provisions that show the commitment of the Olympic Movement to human rights. However, these provisions lack concreteness. In addition, it has to be emphasised that states are not a part of the Olympic Movement, and as such they do not abide by the Olympic Charter. Furthermore, the IOC, which is the supreme authority and the leading actor of the Olympic Movement, is de jure an association governed by Swiss private law and as such it does not have international legal personality. All these facts raise the question whether the Olympic Movement or specifically the IOC possesses an instrument that can affect the improvement of human rights in a particular country. In this regard, the article tries to examine the relevance of three different mechanisms, namely sanctioning, shaming and cooptation, as tools for the promotion of democratisation and domestic protection of human rights. 1. Introduction The IOC was constituted by the Congress of Paris on 23 June 1894 and was entrusted with the control and development of the modern Olympic

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Games.1 The idea of Barone Pierre de Coubertin, the father of the Olympic Games, was to revive the Olympic Games, place sport at the service of humankind and as such contribute to world society and promote global harmony.2 As a result of the prestige, high visibility and importance of the Olympic Games, which today represent the largest and most participated international sporting event, the significance and the authority of the IOC as its governing body have consolidated over decades.3 This paper analyses the question whether the Olympic Movement or specifically, the IOC as its leading actor possesses an instrument that can affect the improvement of human rights in a particular country. In this regard, the article tries to examine the relevance of three different mechanisms, namely sanctioning, shaming and cooptation, as tools for the promotion of democratisation and domestic protection of human rights. However, it is not the purpose of the paper to deal with the following questions: in which case the IOC should use the proposed mechanisms, what are the reasons the IOC does or does not use them and whether the IOC uses them properly. The second part of the paper presents same basic characteristics of the Olympic Movement where special attention is given to the legal nature of the IOC and the legal nature of the Olympic Charter. These characteristics are important to understand the position from which the IOC departs in relation to states. Part three discusses the relevance of three different mechanisms of the IOC as tools for the promotion of democratisation and domestic protection of human rights. Finally, part four tries to determine which of the proposed mechanisms is currently the most efficient and which of them deserves further development.

1 Olympic Charter in force as from 2 August 2016 (Olympic Charter), Preamble. 2 Ibid, Second Fundamental Principle of Olympism. About the birth of the IOC see eg: James AR Nafziger International Sports Law (2nd edn, Transnational Publishers, 2004) 190-93. 3 David J Ettinger ‘The Legal Status of the International Olympic Committee’ [1992] 4 Pace Yearbook of International Law 97.

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2. The Olympic Movement 2.1. Subjects of the Olympic Movement The Olympic Charter defines the Olympic Movement as ‘the concerted, organised, universal and permanent action, carried out under the supreme authority of the IOC, of all individuals and entities who are inspired by the values of Olympism’.4 According to the Olympic Charter, the three main actors of the Olympic Movement are the IOC, the IFs and the NOCs.5 The Olympic Movement also includes the OCOGs, the national associations, clubs and persons belonging to the IFs and NOCs as well as other organisations and institutions as recognised by the IOC.6 As stated in the Olympic Charter, the leading actor of the Olympic Movement and its supreme authority is the IOC,7 which has the power to determine who is suitable for admission to the Olympic Movement.8 Therefore, it is up to the IOC to decide whether the NOCs and their associations and/or the IFs and their associations can be admitted into the Olympic Movement. Individual participants become part of the Olympic Movement by representing their NOCs in the Olympic Games or by being members of an NOC, which is associated to a particular IF.9 The OCOG becomes part of the Olympic Movement after being established for the purpose of the organisation of the Olympic Games.10 In relation to the constituents of the Olympic Movement, it should be emphasised that neither states nor other subjects of international law are part of the Olympic Movement.

4 5 6 7 8 9

Olympic Charter, Third Fundamental Principle of Olympism. Ibid r 1(2). Ibid r 1(3). Ibid, Third Fundamental Principle of Olympism and r 1(1). Ibid, Seventh Fundamental Principle of Olympism and r 3. Ibid r 3(2) and (3); Christoph Vedder ‘The International Olympic Committee: An Advanced Non-Governmental Organization and the International Law’ [1984] German Yearbook of International Law 233. 10 Olympic Charter r 35 and r 1(3).

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2.2. The IOC The IOC is the leading actor of the Olympic Movement and its supreme authority.11 It embraces administrative, legislative and judicial powers.12 It adopts or amends the Olympic Charter,13 grants formal recognition to the constituents of the Olympic Movement14 and elects the Host City of the Olympic Games.15 The IOC’s decisions are final, and the constituents of the Olympic Movement shall abide by them.16 Furthermore, the Olympic Games and the Olympic properties are the exclusive properties of the IOC.17 According to the Olympic Charter, ‘[t]he IOC is an international non-governmental not-for-profit organisation, of unlimited duration, in the form of an association with the status of a legal person, recognised by the Swiss Federal Council in accordance with an agreement entered into on 1 November 2000’.18

However, as Mestre observes, the legal nature of the IOC was not defined for many years,19 ‘(…) perhaps because the IOC has always been confronted with the contradiction between its legally recognised status as a private law association and its current conduct as a particular type of public law organisation’.20 The ambiguities regarding the legal status of the IOC continued until 1991, when the definition of the legal personality of the IOC was given.21 That is when it became clear that the IOC is de jure

11 12 13 14 15 16 17 18

Ibid, Third Fundamental Principle of Olympism and r 1(1). Vedder, ‘The International Olympic Committee’ (n 9) 241-42. Olympic Charter r 18(2.1). Ibid r 61(1). Ibid r 18(2.2). Ibid r 1(4). Ibid r 7. Olympic Charter r 15(1). About the position of the IOC within the Olympic Movement see, eg: Vedder, ‘The International Olympic Committee’ (n 9) 241-42. 19 Alexandre M Mestre, ‘The legal and institutional framework of Olympic Games: an introductory analysis on the Olympic charter and on the International Olympic Committee’, (Centre d’Estudis Olímpics (UAB), International Chair in Olympism (IOC-UAB), 2013) 11, . 20 Mestre, ‘The legal and institutional framework’ (n 19) 11. 21 Ibid 12. The Olympic Charter in force as from 16 June 1991, r 19: ‘The IOC is an international non-governmental non-profit organization, of unlimited duration, in the form of an association with the status of a legal person, recognized by decree of the Swiss Federal Council of September 17th, 1981’.

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an association governed by Swiss private law,22 and as such it does not have international legal personality.23 As Vedder emphasises, ‘(…) the IOC is not an international organization having international legal personality, because all definitions of an international organization require an act of foundation under public international law and the membership of states and/or other subjects of international law’.24 In this regard, it should be emphasised that members of the IOC are natural persons,25 who are ‘neither state representatives nor representatives of the NOCs’.26 Although the IOC is not an international organisation in the legal sense of the term, it de facto has an international character.27 This aspect of the IOC was highlighted in the Agreement between the Swiss Federal Council and the IOC, which recognised the legal capacity of the IOC in Switzerland.28 In this agreement, the Swiss Federal Council stressed the universal role of the IOC in the vital field of international relations, its global reputation and the cooperation agreements the IOC reached with intergovernmental organisations, and which bring to the fore features of an international legal personality.29 The special position that the IOC holds in the international community is also evident in the fact that it was granted United Nations Observer Status in 2009.30 In regard to the de facto international character, Mestre points out ‘the many nationalities of its members and of the constituents of the OM… [and] the international vocation as expressed in terms almost of public service mission within the international legal order, by way of humanist and ethical missions,

22 Mestre, ‘The legal and institutional framework’ (n 19) 12. The IOC is governed by Arts 60-79 of the Swiss Civil Code. 23 Vedder, ‘The International Olympic Committee’ (n 9) 246. 24 Ibid. 25 Olympic Charter r 16(1.1). 26 Vedder, ‘The International Olympic Committee’ (n 9) 236. 27 Mestre, ‘The legal and institutional framework’ (n 19) 11. 28 Agreement between the Swiss Federal Council and the IOC regarding the statute of the IOC in Switzerland (concluded on 1 November 2000, entered into force 1 November 2000). 29 Ibid p 1 para 3. 30 United Nations General Assembly, ‘Resolution on Observer status for the International Olympic Committee in the General Assembly’ 19 October 2009 (A/RES/ 64/3).

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established in partnership with, or with the permission and recognition of states and intergovernmental organisations’.31

Carter describes the IOC as a particular type of ‘Sovereign’ in the field of sport.32 As he outlines, there are several assertions about the sovereign power of the IOC.33 In this regard, Carter notes “the IOC declares that its decisions are final”34 and that the Executive Board of the IOC ‘is the final arbiter in disputes related to sport, except in certain instances when the CAS may here those disputes’.35 Furthermore, Carter emphasises ‘the IOC claims sovereign domain over all IFs [and NOCs]’ (‘author’s emphasis’)36 and that ‘the IOC asserts a legal claim on the appropriation of other bodies, foundations or corporations, involved in the production and/or governance of global sport, thus asserting its primacy over potential rivals’.37 Moreover, Carter observes ‘the IOC has the ability to dictate to state governments how preparations for the Olympic festivals shall be organised’38 and that ‘the IOC can and does require [that] states alter their own legal jurisprudence to fit with the IOC sovereign claims’.39 Carter points out the ‘Sovereign’ character of the IOC appears also from ‘the capability of establishing the extraterritoriality of the IOC offices, juridical immunity, duty-free imports, and other rights normally only afforded to sovereign states’,40 from ‘the privileges for staff and employees, notably through the recognition of credentials issued by the IOC’41 and from fact that ‘the Olympic identity and accreditation card (…) [t]ogether with a passport or other official travel documents of the holder (…) authorises entry into the country of the host city despite whatever the policies and procedures might be in that sovereign state’.42 However, Carter emphasis-

31 Mestre, ‘The legal and institutional framework’ (n 19) 12-13. 32 See Thomas F Carter, ‘The Olympics as Sovereign Subject Maker’ in John P Sugden and Alan Tomlinson (eds) Watching the Olympics: politics, power and representation (Routledge, 2011) 55-68. 33 Ibid 60. 34 Mestre, ‘The legal and institutional framework’ (n 19) 12-13. 35 Carter, ‘The Olympics’ (n 32) 60. 36 Ibid. 37 Ibid. 38 Ibid 61. 39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid.

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es the weakness of all these claims, since they are based solely on the domestic law of Switzerland.43 Ettinger observes that ‘the “unusual influence” of the IOC in the legal process is partially explained by the Olympic Games’ high visibility and charisma’44 and emphasises that despite the legitimacy of the power of the IOC, which originates from the Olympic Charter, its position as an international person still depends on the global acceptance of the Olympic Charter.45 2.3. The Olympic Charter The definition of the Olympic Charter can be found in its introduction, which defines the Olympic Charter as ‘the codification of the Fundamental Principles of Olympism, Rules and Bye-Laws adopted by the International Olympic Committee’.46 The Olympic Charter ‘governs the organisation, action and operation of the Olympic Movement and sets forth the conditions for the celebration of the Olympic Games’47 and the constituents of the Olympic Movement are bound by its provisions.48 The Olympic Charter is adopted and amended by the IOC.49 In principle, the Olympic Charter has three main functions: •

Firstly, it is ‘a basic instrument of a constitutional nature, sets forth and recalls the Fundamental Principles and essential values of Olympism’.50 In this regard Mestre emphasises, the Olympic Charter is a ‘lex superior, lex maxima or fundamental rule’,51 which governs the universe of sport that is subject to it.52 Moreover, Mestre observes that the Olympic Charter has a ‘foundational or constitutive character’.53 In addition, Mestre notes that ‘[t]he Olympic Charter combines a program-

43 44 45 46 47 48 49 50 51 52 53

Ibid 60. Ettinger, ‘The Legal Status' (n 3) 99. Ibid 109. Olympic Charter, Introduction to the Olympic Charter. Ibid. Ibid, Seventh Fundamental Principle of Olympism and r 1(1) and (4). Ibid r 18(2.1). Ibid, Introduction to the Olympic Charter (a). Mestre, ‘The legal and institutional framework’ (n 19) 4. Ibid. Ibid.

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matic discourse with imperative rules’54 and ‘establishes a set of principles and fundamental values, which govern (…) the organisation of sport worldwide’.55 Furthermore, Mestre observes that ‘the Olympic Charter aims to give a stable and durable quality to the governing regime, by making amendments of the OC an exceptional occurrence that requires a two-thirds qualified majority’.56 • Secondly, the Olympic Charter is the founding document of the IOC and serves as its statutes.57 • Finally, the Olympic Charter ‘defines the main reciprocal rights and obligations of the three main constituents of the Olympic Movement’58 and as such, ‘it has ‘a legal status which is similar to a contract’.59 It can be seen that the Olympic Charter is an atypical legal instrument.60 It is a document issued by Swiss private law61 and as such, its rules cannot require ‘governmental obedience’.62 However, nations and individuals who want to participate in the Olympic Games have to accept rules and regulations established by the IOC.63 ‘The Olympic Charter is a universal text, not because of its legal nature but, rather because of an extra legal aspects – its moral authority, based on the social, economic and sporting significance of the Olympic Games’.64 In regard to the status of the Olympic Charter, Martin v. IOC case has to be mentioned.65 In this case the federal appeals court in the United States of America (hereinafter USA) stated that it ‘find[s] persuasive the argument that a court should be wary of applying a state statute to alter the content of the Olympic Games. The Olympic Games are organized and conducted under the

54 55 56 57 58 59 60 61 62 63 64 65

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Ibid. Ibid. Ibid. Olympic Charter, Introduction to the Olympic Charter (b); Alexandre M Mestre, ‘The Legal Basis of the Olympic Charter’ [2008] The International Sports Law Journal 100; Mestre, ‘The legal and institutional framework’ (n 19) 4. Olympic Charter, Introduction to the Olympic Charter (c). Mestre, ‘The Legal Basis’ (n 57) 101; Mestre, ‘The legal and institutional framework’ (n 19) 4. Mestre, ‘The Legal Basis’ (n 57) 101. Ibid. Ettinger, ‘The Legal Status' (n 3) 104. Ibid. Mestre, ‘The Legal Basis’ (n 57) 101. The suit was filed in the United States of America in Los Angeles Superior Court, and was removed to federal court.

The Role of the Olympic Movement in the Promotion and Protection of Human Rights

terms of an international agreement – the Olympic Charter. We are extremely hesitant to undertake the application of one state's statute to alter an event that is staged with competitors from the entire world under the terms of that agreement’.66

Taking into account all the above-mentioned, it is therefore necessary to agree with Vedder who emphasises that with the Olympic Charter, ‘the IOC has autonomously created a federative law for the entire Olympic Movement’67 and that ‘the olympic law is a concise legal order, which is not part of, or subject to municipal law, but a disnational or transnational legal order, which is subject solely to the jurisdiction of the IOC’.68 3. The Olympic Movement as an Instrument for Promoting Democratisation and Domestic Protection of Human Rights Provisions that show the commitment of the Olympic Movement to human rights can be found in many parts of the Olympic Charter. The Fundamental Principles of the Olympic Charter emphasise that ‘the goal of Olympism is to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity’69 and that Olympism ‘seeks to create a way of life based on the joy found in effort, the educational value of good example and respect for universal fundamental ethical principles’.70 Moreover, the fundamental principles define the practice of sport as a human right,71 and emphasise the principle of non-discrimination as they state that ‘any form of discrimination with regard to a country or person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement’.72

66 Lisa Martin, et al., Plaintiffs-Appellants v IOC, et al., Defendants-Appellees, 740 F.2 d 670 (9 th Cir. 1984) para 22. See also: Nafziger, International Sports Law 124-25; James G Goettel, ‘Is the International Olympic Committee Amenable to Suit in a United States Court?’ [1983] 7 Fordham International Law Journal 61. 67 Vedder, ‘The International Olympic Committee’ (n 9) 242. 68 Ibid. 69 Olympic Charter, Second fundamental principle. 70 Ibid, First fundamental principle. 71 Ibid, Fourth fundamental principle. 72 Ibid, Sixth fundamental principle.

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Furthermore, Rule 1 of the Olympic Charter highlights that ‘the goal of the Olympic Movement is to contribute to building a peaceful and better world by educating youth through sport practised in accordance with Olympism and its values’.73 A commitment to human rights by the IOC itself is evident in Rule 2 of the Olympic Charter, which defines the mission and role of the IOC.74 Other provisions that directly or indirectly refer to human rights can be found in other parts of the Olympic Charter. Despite the commitment of the Olympic Movement to human rights, the question arises of how and what kind of mechanisms the Olympic Movement and especially the IOC use for the promotion of democracy and for the domestic protection of human rights. Moravcsik distinguishes between three international instruments for promoting democratisation and domestic protection of human rights. These include, sanctioning, shaming and cooptation.75 In this regard, Moravcsik argues that each of these instruments ‘employs a distinct mechanism through which international pressure may alter the domestic calculations of governments regarding democracy and human rights’.76 3.1. Sanctioning ‘Sanctions seek to promote democracy and respect for human rights by (…) denying domestic groups access to desired foreign goods and services, markets or capital. Where the instrument is effective, the concern of domestic groups (…) leads them to influence the government, thereby shifting the domestic political balance of power in favour of greater protection for human rights.’77

73 Ibid r 1(1). 74 Ibid r 2. 75 Andrew Moravcsik, ‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’ [1995] 1(2) European Journal of International Relations 157. Moravcsik explains the efficiency of the listed instruments on the case of European institutions (the Council of Europe’s European Convention on Human Rights, the European Community and the Conference on Security and Cooperation in Europe). 76 Ibid. 77 Ibid.

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Bossuyt distinguishes between five types of sanction, namely economic, travel, military, diplomatic and cultural sanctions.78 Cultural sanctions, among other things, prohibit athletes to participate in international sports competitions79 and as such, they are relevant in the context of the IOC. However, states are not part of the Olympic Movement and therefore, the IOC may affect them only indirectly. In this regard, it is necessary to highlight some features of the NOCs. The IOC has the authority to grant formal recognition to the constituents of the Olympic Movement80 and as such also to the NOCs. A national sports organisation that wants to become a constituent of the Olympic Movement should first be recognised as an NOC by the IOC.81 Even though in some countries the NOCs have legal personality under public law, they are usually organised in a form of an association with legal status.82 However, in accordance with the Olympic Charter, ‘the NOCs must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter’.83 ‘In order to fulfil their mission, the NOCs may cooperate with governmental bodies, with which they shall achieve harmonious relations. However, they shall not associate themselves with any activity which would be in contradiction with the Olympic Charter’.84 Furthermore, governments or other public authorities are prohibited from designating any members of an NOC, but an NOC may decide to elect as members representatives of such authorities.85 Today, 206 NOCs are part of the Olympic Movement.86 In addition to the NOCs from sovereign states, the NOCs from non-sovereign territories,

78 UNCHR (Sub-Commission), ‘The adverse consequences of economic sanctions on the enjoyment of human rights: Working paper prepared by Marc Bossuyt 2000/33’, Geneva 21 June 2000 (E/CN.4/Sub.2/2000/33) para 10. 79 Ibid para 17. 80 Olympic Charter r 3(1). 81 Ibid r 3(2). 82 Vedder, ‘The International Olympic Committee’ (n 9) 239. 83 Olympic Charter r 27(6). 84 Ibid r 27(5). 85 Ibid r 28(4). 86 ‘National Olympic Committees (NOC) – Olympic Movement’ (International Olympic Committee, 2016), accessed 22 September 2016.

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like Aruba, American Samoa, Hong Kong and others which have the status of an NOC.87 Each NOC has jurisdiction in the country in which it is established and has its headquarters.88 As Nafziger observes, despite the fact the Olympic Charter defines a country as ‘an independent State recognised by the international community’,89 in respect of the NOCs also nonsovereign territories must be regarded as countries.90 Like all the other constituents of the Olympic Movement, the NOCs ‘are bound by the provisions of the Olympic Charter and shall abide by the decisions of the IOC’.91 ‘In case of any violation of the Olympic Charter, the World Anti-Doping Code, or any other regulation, the IOC can suspend an NOC from the Olympic Movement or withdraw its recognition as an NOC’.92 Moreover, the IOC can suspend an NOC from the Olympic Movement or withdraw its recognition as an NOC ‘if the constitution, law or other regulations in force in the country concerned, or any act by any governmental or other body causes the activity of the NOC or the making or expression of its will to be hampered’.93 As Carpenter observes, the looseness of these rules gives the IOC a big discretion in sanctioning the NOCs.94 Furthermore, Carpenter emphasises, that the IOC uses ‘this power seemingly without oversight by any political, sporting or other body’.95 Although states are not direct constituents of the Olympic Movement and as such they are not bound by the provisions of the Olympic Charter and do not abide by the IOC’s decisions, it can still be said that the NOCs are a kind of their representatives in the Olympic Movement, as the NOC has jurisdiction in the country, in which it is established and has its headquarters.96 In this respect, it should be noted that ‘the NOCs have the exclusive authority for the representation of their respective countries at the Olympic Games and at the regional, continental or world multi-sports

87 88 89 90 91 92 93 94

Ibid; Nafziger, International Sports Law (n 2) 23. Olympic Charter r 28(5). Ibid r 30(1). Nafziger, International Sports Law (n 2) 23. Olympic Charter r 1(4). Ibid r 59(1.4). Ibid r 27(9). Kevin Carpenter, ‘IOC, national governments and the autonomy of sport: An uneasy relationship’ (23 December 2013) accessed 23 November 2014. 95 Ibid. 96 Olympic Charter r 28(5).

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competitions patronised by the IOC’.97 Hence, the suspension of an NOC from the Olympic Movement or the withdrawal of its recognition as an NOC means that the NOC’s respective country loses the possibility to participate in the Olympic Games. Even though the IOC cannot directly sanction countries, all the negative consequences of the suspension of an NOC from the Olympic Movement or the withdrawal of its recognition as an NOC also affect the country of the respective NOC. The cases of the Indian Olympic Association (hereinafter the IOA) and the Kuwait Olympic Committee (hereinafter KUW) are recent examples of suspension of two NOCs from the IOC. The IOC suspended the KUW in 2010 because the Kuwait legislation allowed state interference in elections of sporting organisations98 Similarly, in the case of the IOA, which was suspended in 2012, the reason for suspension was governmental interference in the IOA’s election process and questionable integrity of the IOA officials.99 For similar reasons, the Iraqi NOC was suspended.100 In all these cases the reason for the suspension of the NOCs was the breach of the autonomy of sport in the respective country, which is clearly demanded by the Olympic Charter. In such cases a suspension has proved to be an effective tool for sanctioning governmental disobedience. As Rogge observed, ‘[t]his suspension usually leads to (…) negotiations because the government accepts to change their legislation’.101 However, in accordance with the Olympic Charter, ‘[b]efore applying any measure or sanction, the competent IOC body may issue a warning’,102 which means, that the sanction does not always need to be applied. A recent example of this is the threat of suspension of the NOC of Pakistan. From 2013, the IOC had continuously warned Pakistan that its NOC would have been suspended if the Government had not stopped interfering

97 Ibid r 27(3). 98 ‘Olympics-Kuwait To Hoist Flag At Games After Row Resolved’ (Reuters, 14 July 2012) accessed 22 September 2016. 99 Carpenter, ‘IOC, national governments’. 100 ‘Beijing 2008 – Olympics: Rogge Pledges Support For Embattled Egyptian IOC Member’ (Pe.terra.com, 14 July 2012) accessed 22 September 2016. 101 Ibid. 102 Olympic Charter r 59(3).

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in its affairs.103 However, the Government decided to back down after the IOC threatened to apply the suspension in the run-up to the 2014 Commonwealth Games.104 Considering the above mentioned, the question is whether the IOC is able to effectively use the system of sanctions, provided by the Olympic Charter for the promotion of democratisation and domestic protection of human rights. The best-known example of the use of IOC’s sanctions in the context of human rights is probably the case of South Africa in the time of apartheid. From 1948 to 1994105 the policy of apartheid was enforced in South Africa, which affected the field of sports among other things.106 Since the Olympic ideal depicts that politics should stay separated from international sport, the IOC initially hesitated using the Olympic Games as a tool in the fight against apartheid.107 Eventually, under the pressure of the international community, the IOC did not allow South Africans to compete at the Olympic Games from 1964 to 1988.108 Furthermore, the South African NOC was excluded from the Olympic Movement from 1972 to 1991.109 The IOC recognized a newly formed South African NOC once the process

103 Duncan Mackay, ‘Pakistan Government Decide To Back IOC-Sanctioned Olympic Body In Bid To Avoid Suspension Before Glasgow 2014’ (Insidethegames.biz, 6 July 2014) accessed 23 September 2016. 104 Ibid. 105 JH Liu, ‘Lighting the Torch of Human Rights: The Olympic Games as a Vehicle for Human Rights Reform’ (2007) 5(2) Northwestern Journal of International Human Rights 213 accessed 23 November 2014. 106 In accordance with International Convention against Apartheid in Sports (adopted 10 December 1985, entered into force 3 April 1988) 1500 UNTS 161 Art 1 para (a): - Apartheid means ‘a system of institutionalized racial segregation and discrimination for the purpose of establishing and maintaining domination by one racial group of persons over another racial group of persons and systematically oppressing them, such as that pursued by South Africa’. Where is this cited from? - Apartheid in sports means ‘the application of the policies and practices of [apartheid] in sports activities, whether organized on a professional or an amateur basis’. Citation? 107 Nafziger, International Sports Law (n 2) 224-25. 108 Ibid, 224-30. 109 Ibid.

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of dismantling the apartheid policy began to take place.110 However, it has to be emphasised that the situation of South African apartheid was very specific. The United Nations condemned the South African racist regime.111 Furthermore, the United Nations Security Council (UNSC) treated the South African situation as a threat to peace under Article 39 of the United Nations Charter and adopted a number of resolutions acting under Article 41 of the United Nations Charter.112 Moreover, the United Nations supported the expulsion of South Africa from the Olympic Games and the Olympic Movement.113 However, as Nafziger observes, ‘sanctions against South African athletes and teams were effective as part of a gradual transformation within South African society. This transformation was attributable to a combination of governmental and non-governmental pressures and to the special importance of international sports competition to South African public’.114

Another well-known example of applying the IOC’s sanctions in the struggle against apartheid is the case of Rhodesia. However, this case differs 110 Ibid. 111 UNSC, ‘Question relating to the policies of apartheid of the Government of the Republic of South Africa’ 7 August 1963 (S/RES/181); UNSC, ‘Question relating to the policies of apartheid of the Government of the Republic of South Africa’ 4 December 1963 (S/RES/182); UNSC, ‘Question relating to the policies of apartheid of the Government of the Republic of South Africa’ 9 June 1964 (S/RES/190); UNSC, ‘Question relating to the policies of apartheid of the Government of the Republic of South Africa’ 18 June 1964 (S/RES/191); UNGA, ‘Resolution on the policies of apartheid of the Government of South Africa’ 2 December 1968 [A/Res/2396(XXIII)], UNSC, ‘The Question of race conflict in South Africa resulting from the policies of apartheid of the Government of the Republic of South Africa’ 23 July 1970 (S/RES/282); UNSC, ‘The Question of race conflict in South Africa resulting from the policies of apartheid of the Government of the Republic of South Africa’ 4 February 1972 (S/RES/311), UNGA, ‘Resolution on Apartheid in sports’ 12 December 1979 (A/RES/34/93N). 112 UNSC, ‘South Africa’ 4 November 1977 (S/RES/418); UNSC, ‘South Africa’ 9 December 1977 (S/RES/421); UNSC, ‘South Africa’ 13 June 1980 (S/RES/473); UNSC, ‘South Africa’ 13 December 1984 (S/RES/558); UNSC, ‘South Africa’ 28 November 1986 (S/RES/591). 113 UNGA, ‘Resolution on the policies of apartheid of the Government of South Africa’ 2 December 1968 [A/Res/2396(XXIII)]; UNGA, ‘Apartheid in sports’ 29 November 1971 [A/Res/2775(XXVI)D]; UNGA, ‘Apartheid in sports’ 28 November 1975 [A/Res/3411(XXX)E], UNGA, ‘International Declaration against Apartheid in Sports’ 14 December 1977 (A/RES/32/105M); UNGA, ‘Apartheid in sports’ 12 December 1979 (A/RES/34/93N). 114 Nafziger, International Sports Law (n 2) 229-30.

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from the case of the South African apartheid, since the apartheid in Rhodesia did not extend to the field of sport. However, irrespective of that difference, the IOC under the pressure of the resolution of the UN Special Committee on Decolonization, which demanded the IOC ‘to suspend the so-called “NOC of Rhodesia” from its membership and to ask the Organizing Committee of the 20th Olympic Games to annul forthwith its invitation for the Olympic Games of Munich’,115 barred the Rhodesian team from the 1972 and 1976 Olympic Games.116 A more recent example of a suspension of an NOC for human rights reasons was the suspension of the Afghanistan NOC in 1999. One of the reasons the IOC suspended the Afghanistan NOC was that the Taliban regime did not permit women to participate in sport. The Taliban regime ended in 2001 and in 2003 the IOC lifted the suspension of the Afghanistan NOC.117 However, the Olympic Charter comprises other sanctions which are relevant to countries and imposes certain standards. The Olympic Charter provides that ‘in the case of any violation of the Olympic Charter, the World Anti-Doping Code, or any other regulation, as the case may be’118, the IOC can ‘with regard to a host city, an OCOG and an NOC, withdraw the right to organise the Olympic Games’119 or ‘with regard to applicant or candidate cities and NOC, withdraw the right to be an applicant or a candidate city to host the Olympic Games’.120 Although these provisions do not explicitly mention a country, its territorial element is present in the form of the NOC and also in the form of the host, applicant or candidate city.

115 Nafziger, International Sports Law (n 2) 230, citing Decolonisation Committee Deplores Olympic Invitation to Rhodesian Team, UN Press Release WS/501, May 7, 1971, at 4. 116 Nafziger, International Sports Law (n 2) 230-31. 117 ‘Afghanistan Back In Olympics’ (News.bbc.co.uk, 29 June 2003) accessed 22 September 2016. 118 Olympic Charter r 59. 119 Ibid r 59(1.6) and similarly r 36(2). 120 Ibid r 59(1.7).

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3.2. Shaming ‘Shaming seeks to enforce individual human rights and promote democracy by creating an international and domestic climate of opinion critical of national practices. Shaming exploits the symbolic legitimacy of foreign pressure and international institutions to unleash domestic moral opprobrium. Shaming is instigated through the dissemination of information and the promulgation of norms, as well as through the creations and exploitation of international practical institutions that enjoy domestic legitimacy. The domestic balance of power shifts in favour of protection of human rights when the government or the citizenry seeks to avoid undermining its reputation and legitimacy at home or abroad’.121

As evident from the above-mentioned citation, shaming is not a legal category but rather a psychological category. The applying of a sanction or threat that a sanction will be applied does not only mean the loss of a desired good, but also damage to the reputation. When the IOC suspends an NOC, withdraws its recognition or threatens to apply a sanction, the country not only loses the possibility to be represented in the Olympic Games, but also becomes a target of undesired worldwide attention and scrutiny. In relation to human rights, the 1988 Seoul Olympic Games deserve to be exposed. In 1981, Seoul was elected as host city of the 1988 Olympic Games. South Korea was a dictatorship and had a very low human rights protection rate. The South Korean regime saw the Olympic Games as an opportunity to improve its international image and draw attention to the Olympic Games. It also sought to move considerations away from politics or ideas of democratisation. However, in the run-up to the Olympic Games, a combination of events made this difficult. There were massive student protests seeking democratisation in the country, a newly formed middle class with a desire for social changes, attempts by the South Korean government to suppress the democratic movement and fear they would lose the privilege of holding the Olympic Games.122 As Zimelis observes, the world’s intensified scrutiny and the feeling of shame of the whole country in case Seoul would have lost the organisation of the Olympic Games, contributed to the process of democratisation in South Korea.123

121 Moravcsik, ‘Explaining International’ (n 75) 161. 122 Andris Zimelis, ‘Let the Games Begin: Politics of Olympic Games in Mexico and South Korea’ [2011] 67 (3) India Quarterly: A Journal of International Affairs 263. 123 Ibid 275-76.

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While the 1988 Seoul Olympic Games are a good example of how the Olympic bid and the Olympic Games can perform a positive influence on human rights and democratisation, we cannot say the same for the 2008 Beijing Olympic Games, 2014 Sochi Olympic Games and 2016 Rio Olympic Games. The 2008 Beijing Olympic Games, 2014 Sochi Olympic Games and 2016 Rio Olympic Games did not contribute to the improvement of human rights in Russia, China and Brazil during their elections, but rather saw an increase in human rights abuses which were directly linked to the preparations for the Olympic Games.124 For example, abuses of migrant construction workers and forced evictions of residents whose homes were demolished to make way for the Olympic infrastructure.125 3.3. Cooptation The third mechanism, by which the Olympic Charter may promote human rights, is “cooptation”. Cooptation ‘seeks to enforce human rights and promote democracy by coopting or reforming domestic political institutions and legal systems in such a way as to shift the domestic balance of power in favour of human rights’.126 It is necessary to mention at least two tools at the disposal of the Olympic Movement in regard to cooptation. Firstly, it is important to point out the provisions of the Olympic Charter which determine the role and mission of the NOCs. ‘The mission of the NOCs is to develop, promote and protect the Olympic Movement in their respective countries, in accordance with the Olympic Charter’.127 Moreover, ‘[t]he NOCs’ role is to promote the fun-

124 ‘China: Olympics Harm Key Human Rights’ (Human Rights Watch, 7 August 2008) accessed 22 September 2016; ‘Russia's Olympian Abuses’ (Human Rights Watch, 8 April 2013) accessed 22 September 2016; Jonathan Watts, 'Rio Olympics Linked To Widespread Human Rights Violations, Report Reveals' (the Guardian, 8 December 2015) accessed 26 September 2016. 125 Ibid. 126 Moravcsik, ‘Explaining International’ (n 75) 161. 127 Olympic Charter r 27(1).

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damental principles and values of the Olympic Movement in their countries (…)’128 and to ‘ensure the observance of the Olympic Charter in their countries’.129 Whereas, the Olympic Charter clearly emphasises the importance of human rights, it should be stated that, through the action of the NOCs, the Olympic Charter itself encourages countries to reform domestic legislation in favour of human rights. However, it should be emphasised that provisions of the Olympic Charter referring to human rights lack concreteness. The Olympic Charter shows commitment of the Olympic Movement to human rights rather than determines the exact content thereof. In fact, the most concrete human rights listed in the Olympic Charter are the principle of non-discrimination and the right to sport. Secondly, it is interesting to analyse the possibilities offered by the selection process of the Host City for the Olympic Games. The selection process of the Host City for the Olympic Games starts with the application and ends with the election of the Host City by signing the Host City Contract. In this regard it has to be stressed that the applicants, candidates and successful hosts of the Olympic Games are cities rather than countries.130 In the applicant and candidature phases cities are, among other things, required to submit a number of legally binding guarantee letters.131 A guarantee is an interesting instrument because it grants governmental obedience, even though states do not participate in either the applicant phase, the candidate phase of the Olympic bid process nor in the phase of stipulating the Host City Contract.132 In relation to human rights the most significant guarantee, which is required for submission during the Olympic application and candidature process, is the one that requires governments and their public authorities to comply with and respect the Olympic Char-

128 129 130 131

Ibid r 27(2.1). Ibid r 27(2.2). Ibid Bye-law to r 33. See eg: Candidature Acceptance Procedure, Games of the XXX Olympiad 2012, p 24; 2012 Candidature Procedure and Questionnaire, Games of the XXX Olympiad in 2012, p 250-53. 132 Particularly interesting is the obligation to submit a guarantee of a state that grants free access to and free movement around the host country for all accredited persons. See eg: See eg: Candidature Acceptance Procedure 26; 2012 Candidature Procedure and Questionnaire, Games of the XXX Olympiad in 2012, p 250. See also Olympic Charter, r 52.

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ter.133 However, in should be stressed that the Olympic Charter provisions, which refer to human rights lack concreteness. Except for the principle of non-discrimination and few other provisions, most of the norms that allude to human rights are vague. Moreover, in analysing the list of guarantees that are required in the Olympic bid process, it seems that they are intended to amend national legislation solely for the purpose of the organisation of the Olympic Games.134 The last phase of the bid process covers the electing of the Host City and signing of the Host City Contract. The problem of the Host City Contract is that its obligatory parties are only the IOC, the Host City and the NOC of the Host City country. It is in the discretion of the IOC to decide whether other local, regional or national authorities, as well as, if relevant, other NOCs and local, regional or national authorities outside the host country, may also be a party to such agreement.135 Thus, when the host country is not a party of the Host City Contract, the Host City Contract does not create any obligation for it. 4. Conclusion Among the discussed international mechanisms for the promotion of democratisation and domestic protection of human rights, the most relevant seems to be the mechanism of sanctioning. The exclusion of an NOC from the Olympic Movement or the withdrawal of its recognition as an NOC may be an effective sanction for the improvement of human rights. However, it should not be overlooked when it comes to serious human rights violations such as those in the case of South Africa, Rhodesia and Afghanistan, that IOC sanctions are not sufficient. In such cases, the IOC’s sanctions can only be effective in combination with other sanctions imposed by the international community. Yet, it is possible that the IOC’s sanctions are sufficient when imposed against a country ‘that already ef133 Olympic Charter r 33 para 3. Candidature Acceptance Procedure p 26; 2012 Candidature Procedure and Questionnaire, Games of the XXX Olympiad in 2012, p 250-53. 134 2012 Candidature Procedure and Questionnaire, Games of the XXX Olympiad in 2012, p 250-53. 135 Olympic Charter, Bye-law to r 33(3.3). Compare with Olympic Charter in force as from 9 September 2013, Bye-law to r 33(3.3) and Olympic Charter in force as from 2 August 2016, Bye-law to r 33(3.3).

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fectively guarantees basic rights’136 and to which sport participation represents an important good. On the other hand, withdrawing the right to organise the Olympic Games as a sanction, is unlikely considering the damage the IOC would suffer itself. Shaming is also a relevant mechanism for promoting democratisation and human rights internationally. The examined cases have shown that the use of shame is usually efficient in a combination with an already imposed sanction or with the threat that a sanction will be imposed. However, in cases of serious human rights violations, shaming alone is not sufficient. Thus, favourable accompanying circumstances are needed. The analysis has shown that cooptation is the least developed mechanism among the three analysed. However, it should be stated that there is leeway for improvement. Firstly, the Olympic Charter should concretise the provisions which refer to human rights and then put specific obligations on NOCs in regard to their promotion in their respective countries. Secondly, in the selection process of the Host City for the Olympic Games, guarantees, which address specific human rights, should be submitted as required. Lastly, in the stipulation of the Host City contract, the host country should be its obligatory party. It should be concluded that the authority the IOC enjoys in the international community, together with the instruments provided by the Olympic Charter, gives the IOC the possibility to contribute to the promotion of democratisation and domestic protection of human rights. Therefore, the question is not whether the IOC possesses the suitable instruments, but rather whether the IOC wants to apply them, and if yes, when and how.

136 Moravcsik, ‘Explaining International’ (n 75) 157.

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A Defendant's Right to a Fair Trial and Improvement of the Victim’s Status in the Proceedings before International Criminal Jurisdictions Marina Žagar

Abstract This paper seeks to present the position of defendants and victims before International Criminal Court (ICC) and ad hoc tribunals for former Yugoslavia and Rwanda (ICTY and ICTR). A fundamental principle of international law requires that every defendant has the right to a just and fair trial, along with the right to be presumed innocent until proven guilty. Unlike the well-established right of defendants to a just trial with due process, the right of the victims to participate in international criminal proceedings is a rather new concept. Victims of mass atrocity crimes are special in many ways. They have several important needs, including: receiving financial compensation; seeing that perpetrators get punishment; having a forum to speak and be heard, and obtaining the truth about the events that caused their harms. The rights of victims and defendants may conflict since they are inherently adverse parties. There are differences in the degree of protection and guarantees of the rights of victims before the ad hoc tribunals, ICC and national courts. Despite these conflicts, they established a model suitable for the realization of victim's rights in criminal proceedings without jeopardizing the defendant’s rights. I. International Criminal Procedure as sui generis Mixed Procedure The position and rights of participants at the trial before ad hoc tribunals and the ICC are led by the nature of the procedure. Therefore, it is necessary to focus firstly on special, mixed international criminal procedure. Mixed procedure represents a combination of two major domestic legal traditions: the common law tradition (Anglo-American tradition) and the civil law tradition (Continental or Romano-Germanic tradition). The common law model is said to be 'adversarial' or 'accusatorial' and the civil law 289

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model 'inquisitorial'.1 Ideally, elements from different domestic legal systems should be incorporated in international procedural rules with a view to creating a coherent whole, whilst providing for fair and yet effective proceedings. However, adversarial and inquisitorial features are not always compatible. Political considerations require compromises, which in turn may result in ineffective or overly flexible rules; procedural efficiency and fair trial rights could thereby be affected. Apart from the need to achieve broad acceptance there are other reasons for a mixed model. Adversarial principles are generally attractive for fulfilling the fair trial rights of the defendant as laid down in international human rights instruments.2 On the other hand, procedures that require the suspect or accused to conduct his or her investigation in preparation of a case may prove difficult, or even impossible, in international criminal proceedings dependent upon State cooperation. Moreover, the focus on objective truth-finding in inquisitorial systems may serve the criminal proceedings more efficiently. For example, the aim of creating an ‘accurate historical record’ may be achie-

1 The fundamental difference between the models is the role of the parties and of the judges. While both systems aim at finding the truth, the means and methods vary. The adversarial model, as the term suggests, is premised on two conflicting parties each bringing its case to court, the prosecution and the defence. Hence, the two parties conduct their own investigations and the role of the judge at trial is (traditionally) like a referee, mainly deciding procedural issues raised by the parties; a system that fits well with jury trials. On the contrary, in the ‘inquisitorial’ model, State agencies are obliged to carry out objective criminal investigations and prosecutions and, essentially, only one case is presented to the court. Defence interests are looked after in the investigation and there is judicial supervision, often by an examining judge (judge d’instruction). The prosecutor and the examining judge instruct the police and a ‘dossier’ is assembled for the entire case. The trial judge is different from the examining judge, but will have access to the ‘dossier’. The judge plays a much more active and intervening role at trial, with an explicit task to ‘seek the truth’. In: Robert Cryer, Robert, Hakan Friman, Darryl Robinson, Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure, Cambridge University Press, 2007, pp 349-350. It is sometimes argued that the civil law system aims at establishing ‘objective truth’, as a necessary precondition for a just decision, and the common law system rather seeks ‘procedural truth’, with an emphasis on a just settlement of dispute, see Salvatore Zappala, Human Rights in International Criminal Proceedings, Oxford University Press, 2003, p16. 2 E.g guarantees laid down in Art. 14 of the International Covenant on Civil and Political Rights (ICCPR) are based on the Anglo-Saxon common law tradition of ‘due process of law’; see Manfred Nowak, U.N. Covenant on Civil and Political Rights – ICCPR Commentary (2nd edn, Kehl/Strasbourg/Arlington, 2005), p. 305.

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ved. A process which is less two party-centred allows the victims a more active role and increases judicial control which may enhance the efficiency of the proceedings and the acceptance of broad prosecutorial powers.3 The ICTY and ICTR Statutes, adopted by the Security Council, include only a few basic procedural provisions. Further details were left to the judges to establish in the form of Rules of Procedure and Evidence (hereinafter: RPE). The approach was that the RPE had to reflect ‘concepts that are generally recognized as being fair and just in the international arena’. An early ICTY Trial Chamber decision explained that the procedures were a ‘unique amalgam of common and civil law features’ and did not ‘strictly follow the procedure of civil law or common law’.4 However, the ICTY procedures were mainly adversarial in nature. The RPEs for the Tribunals were experimental and have been amended several times which has led to criticism regarding legal certainty and fairness. Many of the amendments have been in an inquisitorial direction, inter alia increasing the judges’ controlling powers aiming to reduce the length of the proceedings.5 The ICC Statute is a treaty negotiated by States. The ICC draft Statute, inspired by the procedural law of the ICTY and ICTR, reflected an adversarial approach. During the preparatory negotiations more inquisitorial features were proposed and incorporated partly as a reaction against the ICTY and ICTR procedures. Huge efforts were made towards finding solutions satisfactory to the different legal traditions, resulting in agreement on important ‘bridges’ between the two traditions such as a pre-trial chamber and the procedure in case of admission of guilt. In addition to the very detailed procedural regime they negotiated in the ICC Statute, the States also reserved powers to formulate the RPE. This departs from the practice of other international courts and tribunals where the adoption of procedural law is left to the judges. The ICC judges were, however, given the power to adopt Regulations of the Court.6 The ICTY, ICTR and ICC all have mixed systems with adversarial as well as inquisitorial elements. At least to an extent, the traditional com-

3 4 5 6

In: R Cryer (n. 1), p. 350. Tadic, ICTY T. Ch. II 5.8.1996 para 14. In: R Cryer (n. 1), p. 352. See Arts 51.-52. of the ICC Statute.

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mon law and civil law divide has been overcome.7 Nevertheless, the procedures are primarily adversarial in nature and the procedures of the ICTY and ICTR more so than those of the ICC. Seen as a whole each procedural system is unprecedented and may be considered as unique.8 II. Defendant and Human Rights Standards in the International Criminal Proceedings Since the international criminal courts and tribunals are not parties to international human rights Treaties, they are not formally bound by them, nor the jurisprudence developed by international human rights courts and other organs.9 These are directed to States. Instead, some human rights principles are set out in the Statutes and RPEs, and are thus directly applicable in the proceedings. International Covenant on Civil and Political Rights (hereinafter: ICCPR) is a global treaty with a large number of ratifications and has served as a model.10 Since the ICTY and ICTR have fewer sources of applicable law, they subsequently made references to international human rights treaties and case law in their decisions. The Tribunal's unique structure, status, and subject-matter jurisdiction have been regarded as justification for this departure.11 On the contrary, the ICC Statute contains provisions reflecting international human rights law and directs the Court to abide by the applicable treaties, principles and rules of international law. It states that the application and interpretation of the law „must be consistent with internationally recognized human rights“.12

7 For more on the nature of the international criminal procedure see: Kai Ambos, International criminal procedure: “adversarial”, “inquisitorial” or mixed? (2003) 3 International Criminal Law Review, p. 1 ff. 8 R Cryn (n. 1), p. 352 f. 9 E.g. The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention Against Torture, Convention on the Prevention and Punishment of the Crime of Genocide, European Convention on Human Rights. 10 Articles 14 and 9 (3) ICCPR. Some of ICCPR's provisions represents either customary international law or general principles of law, see R Cryan (n. 1), p. 354. 11 Ibid, p. 354. 12 Art 21 (1) (b) and (3) of the ICC Statute.

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ICCPR recognizes 'the inherent dignity and... equal and inalienable rights of all members of the human family' and posits that all criminal defendants have the right to a 'fair' and 'impartial' trial where they are 'presumed innocent until proven guilty.'13 The United Nations Universal Declaration of Human Rights (UDHR) adopts the same moral and legal principles.14 The right to a fair trial guaranteed under Article 14 of the ICCPR are repeated in verbatim under Article 21(2) of the ICTY Statute and Article 20(2) of the ICTR Statute. This right is further articulated in Article 67(1) of the ICC Statute where minimum guarantees are laid down. It is important to stress that rights of the defendant are not ‘just’ human rights guarantees; they are part and parcel of the epistemological mechanism for fact finding in criminal proceedings.15 This part of the paper seeks to introduce the basic rights of the defendant which have been challenged during proceedings within international criminal jurisdiction. 1. Presumption of Innocence The right to be presumed innocent until proven guilty is considered a cornerstone of fair trial proceedings. This fundamental human right is set out in the major international and regional human rights instruments and often constitutionally protected by States. It is incorporated in the Statutes of ad hoc tribunals such as Article 21(3) ICTY and Article 20(3) of the ICTR. Article 66 of the ICC Statute also protects the presumption of innocence. By reason of the presumption of innocence, the burden of proof remains with the prosecution and the accused maintains the benefit of doubt. No guilt can be presumed until the charge has been proven beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated

13 International Covenant on Civil and Political Rights, G.A. Res. 2200A, at 52-53, 54, U.N. GAOR, 21st Sess., 1496th plen. mtg., Annex, U.N. Doc. A/6316 (16 December 1966). 14 Universal Declaration of Human Rights. 15 S Zappala The Rights of Victims v. The Rights of the Accused, (2010) 8 Journal of International Criminal Justice, p 145.

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in accordance with this principle. Therefore, it is the duty of all public authorities to refrain from prejudging the outcome of a trial.16 2. Independence and Impartiality of the Court All human rights treaties require an institutional guarantee in the form of an independent and impartial tribunal or court established by law. This is an integral part of the defendant’s right to a fair trial and a general principle of law recognized by all legal systems.17 The impartiality requirement also relates to the judge who must be both personally and institutionally impartial. The ICTY and ICTR Statute expressly require the impartiality of judges but do not address the independence of the tribunal.18 Their status as judicial institutions, established by the Security Council, has led to some discomfort regarding their institutional independence. Yet, despite their mode of establishment, there are no provisions allowing the Security Council to interfere in individual cases. Therefore, in an objective sense, the ICTY and ICTR could be regarded as institutionally and functionally independent. The ICC is an independent, treaty-based body possessing a comprehensive Statute which explicitly addresses the independence and impartiality of the judges, Prosecutor, as well as the right of the defendant to a ‘fair hearing conducted impartially’.19 3. Fair, Public and Expeditious trial a. Fair Trial Providing a ‘fair trial’ is a fundamental aim for any criminal proceeding, especially for international ones. For the court to enjoy (international) le-

16 W Schomburg, The Role of International Criminal Tribunals in Promoting Respect for Fair Trial Rights, (2009) 8 Northwestern Journal of International Human Rights, p 7. 17 R Cryan (n. 1), p 354. 18 Art 13 of the ICTY Statute and Art 12 of the ICTR Statute. 19 Art 42 (5-8) and 67 (1).

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gitimacy, it must ensure that rights of the defendant are protected by the principles of due process and fundamental fairness.20 b. Public Trial The principle of a public trial allows public scrutiny of the judicial proceedings and thus a protection against unfairness and arbitrary action by the courts. Naturally, this principle also applies to the ICTY, ICTR and ICC. The respective Statutes provide for public hearings and delivery of the judgment in public.21 As in domestic proceedings there are exceptions and some trials may be heard behind closed doors. The provisions of the ICTY and ICTR RPEs which lay out these exceptions are inspired by those in the ICCPR and ECHR22. For example, the exclusion of the public may be allowed for reasons of: public order or morality, safety, security or nondisclosure of the identity of a protected victim or witness or for the protection of the interests of justice.23 The ICC Statute provides for two exceptions: protection of the accused, victims and witnesses, and protection of confidential or sensitive evidence. c. Expeditious Trial One unfortunate shortcoming of the international tribunals and ICC is the length of time of the proceedings. Accordingly, there are serious concerns regarding a defendant’s right to be tried without undue delay. Each Statute provides the accused with the right to be tried without ‘undue delay’; a right also reflected in all major human rights instruments. The ICTY and ICTR are often criticized for excessively long proceedings. In response, the ICTY and ICTR have amended their RPEs to achieve more expeditious proceedings although these have remained unsuccessful since cases

20 K Corrie, Victims’ Participation and Defendants’ Due Process Rights: Compatible Regimes at the International Criminal Court, American Non-Governmental Organization Coalition for the ICC, 2007, p 1. 21 Art 21 (2) of the ICTY Statute and Art 20 (2) of the ICTR Statute. 22 European Convention for the Protection of Human Rights and Fundamental Freedoms. 23 R Cryer (n. 1), p 357.

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have continued to be lengthy.24 Time limits set out in the Rules and Statutes afford the accused more time to prepare his defence in comparison to domestic cases because documents and evidence require the need for translation in addition to other issues unique to the functioning of the international tribunals.25 The ICC also provides the accused with more time to prepare their defence based on the same reasons, especially having in mind extended rights of the victims. 4. Equality of Arms A fundamental element of a fair trial and general principle of law, is the principle of equality of arms. It requires each party to prepare and present its case based in law and on facts with the opportunity to respond to the opponent’s case. The courts must ensure that neither party is put at a disadvantage when presenting its case. The conditions provided to the defendant and their right to have adequate time and facilities to prepare their case should be distributed equally to the Prosecutor. There are other aspects of the equality of arms, such as: the defendant’s rights to prompt and receive detailed information regarding the charge against him/her through disclosure and access to the Prosecutor’s evidence, the right to a defence counsel which may examine witnesses against him/her, and to call witnesses under equal conditions.26 III. The Role and Status of Victims In comparison to the longstanding right of defendants to a just trial with due process, the right of the victims to participate in proceedings is a relatively new concept in international criminal law.27 There is an important

24 R Cryer (n.1), p 358. 25 S Zappala (n. 15), p 12. 26 These rights are also specifically provided for: Art 21 (4) of the ICTY Statute, Art 20 (4) of the ICTR Statute, and Art 67(1) of the ICC Statute. 27 However, the international community has long recognized the importance of providing justice for victims. For example, in 1985 the United Nations General Assembly adopted the Declaration on Basic Principles of Justice for Victims of Crimes and Abuse of Power, which declared that crime victims are entitled to access to judicial mechanisms in order to obtain redress for their injuries: G.A. Res.

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new trend in criminal justice towards ‘restorative justice’, which is a victim-oriented approach.28 Victims should therefore, participate in criminal proceedings in some capacity. Victims of crime—in particular victims of atrocities like genocide, crimes against humanity, and war crimes—have several important needs, including: 1) receiving financial compensation for their harms; 2) seeing that culprits get retribution so long as the punishment is reasonable; 3) having a forum to speak and be heard; and 4) obtaining closure and truth about the political affairs behind their harms. Participation in international criminal proceedings could help satisfy these needs and alleviate the suffering of victims of atrocities in post-conflict societies seeking a peaceful transition towards democracy.29 During the ICTY and ICTR proceedings victims could participate only as witnesses.30 There could have been claim to restitution of property by the victims however, as witnesses this was not part of the considerations.31 Nevertheless, the ad hoc tribunals helped to focus the progress of interna-

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40/34, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, U.N. Doc. A/RES/40/34 (29 November 1985); later on it was introduced into another document: G.A. Res. 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights law and serious violations of international humanitarian law, U.N Doc. A/RES/60/147 (16 December 2005). In addition, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the American Convention on Human Rights offer the possibility of some form of remedy to injured parties, though neither provides for criminal liability. The European Convention also permits victims to lodge complaints directly with the European Court of Human Rights. W Schabas, An Introduction to the International Criminal Court, Cambridge University Press, 2004, p 172. M Jouet, Reconciling the Conflicting Rights of Victims and Defendants at the International Criminal Court, (2007) 26 St. Louis University Public Law Review, p 250. Participating as a victim in proceedings should be distinguished from being called to testify as a witness. Some victims may be called as witnesses by one of the parties to give evidence that goes to the culpability or innocence of the defendant, whereas appearing as a victim participant is entirely voluntary. In participating, victims are pursuing their own interests, independent from the parties, in: F McKay, F, Victim Participation in Proceedings before the International Criminal Court, (2008) 3 Human Rights Brief, p 2. The less-extensive model of victim participation at the ad hoc tribunals is a likely result of the timing and the reasons for their creation. The ad hoc tribunals were established by the Security Council to ensure accountability for crimes that occurred in specific conflicts. Thus, the personal interests of individual victims were

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tional law towards a regime of victim's participation and redress. Indeed, the ad hoc tribunals provided the first opportunity for victims to come forward in an international forum and influenced the ICC's provisions in regards to the victim's status. This strengthened the role of the victim in the ICC significantly.32 Victims are granted a right to participation in the proceedings in pursuance of their own personal interests. Victims may intervene at the trial stage when their ‘personal interests’ have been affected. The views and concerns of witnesses may be presented at any stage of the proceeding so long as the manner is not prejudicial to or inconsistent with the rights of the accused, or infringes upon a fair and impartial trial.33 Victims may be represented by counsel in the presentation of their views and concerns.34 The ICC Statute does not limit victim's participation to any particular stage of proceedings and victims can participate: prior to the authorization of an investigation35, during the investigation phase, in the pre-trial phase of a case36, in the trial phase, or in relation to reparations.37 There are several modalities for victims to participate in the stage-proceedings at the ICC. Rule 89(1) of the RPE provides the possibility for victims to make opening and closing statements. The Prosecutor and the defence have the opportunity to respond to any oral or written observation

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not the Security Council’s primary concern. Moreover, the rules of procedure for the ad hoc tribunals were based mostly on the Anglo-American adversarial criminal systems, where victims may only participate as witnesses in criminal trials, and can seek personal redress only through civil law suits. It is evident that victim's needs are much better addressed by an institution such as the ICC – there are several units especially made for victims: The Victims Participation and Reparations Section (VPRS), Victims and Witnesses Unit, as well as two independent bodies — an Office of Public Counsel for Victims to provide legal assistance and representation, and a Trust Fund for Victims of crimes within the ICC’s jurisdiction. In comparison, at the tribunals, there has been established only The Witnesses and Victims (Support) Section. Article 68 (3) of the ICC Statute. Ibid. Article 15 (3) of the ICC Statute and Rule 50 of the RPE. Victims can submit observations to challenge the jurisdiction of the Court; Interim release; admissibility; the location of the confirmation of charges hearing. After a conviction, the competent Chamber has the ability to afford reparations to, or in respect of victims, including restitution, compensation and rehabilitation. The Chamber can make the award directly to victims, or where appropriate, through the Trust Fund for Victims, in: The Participation of Victims in International Criminal Court – Proceedings A Review of the Practice and Consideration of Options for the Future, Redress Trust, October 2012, p 53.

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by victim's legal representatives. Victims may also participate in interlocutory appeals. A Chamber may allow a victim's representative to “press, challenge or discredit a witness, for example when the views and concerns of a victim conflicts with the evidence given by that witness, or when material evidence has not been forthcoming”.38 Victim's legal representatives may question all types of witnesses.39 Victims may also express their views and concerns by challenging the admissibility of evidence or by submitting oral or documentary evidence themselves.40 It has been noticed that there is a gradual approach to victim participation within the Court, with some Chambers enabling victim’s greater participatory rights than in others.41 These inconsistencies have meant there is inequality in participation for victims before the ICC. There is need for greater harmonization of the victim participation regime to ensure equality for victims and other participants, as well as to protect defendants from any legal uncertainty which could undermine their presumption of innocence. The appropriateness of the timing of an intervention by one or more victims or by their legal representative has been determined by Chambers on a case by case basis, taking into consideration the rights of the defendant, the need to ensure that the proceedings are effective, expeditious and the interests of the victims concerned. Even if victims do not participate actively in the trial process, as parties or interveners, their presence is virtually indispensable as witnesses. Here there are a number of particular concerns, such as protection of witnesses from reprisals, and ensuring that the investigation and trial themselves do not constitute further victimization of those who have already suffered terribly.

38 Decision on the Manner of Questioning Witness by the Legal Representatives of Victims, Lubanga (ICC-01/04-01/06-2127), Trial Chamber I, 16 Sept. 2009, para 28. 39 Including defence witnesses, expert witnesses, and insider witnesses. 40 Above n 35, p 51. 41 E.g the difference in participatory rights occurred in these two cases: ICC, Prosecutor v Bosco Ntaganda, Decision on Victims’ Participation at the Confirmation of Charges Hearing and in the Related Proceedings, ICC-01/04-02/06-211, 15 January 2014, paras.85-96; and, Prosecutor v Abdallah Banda, Decision on the participation of victims in the trial proceedings, ICC-02/05-03/09-545, 20 March 2014, paras. 24-41. In: Moffett, L, Realizing Justice for victims before the International Criminal Court, (2014) International Crimes Database Brief 6, p 7.

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Both in the Tribunals and in the ICC, provision for the protection of victims and witnesses has been widely applied in practice. This is natural due to the nature of the crimes and the conflicts in question. However, it is necessary to pay attention to the balance of interests, particularly against the rights of the defendant. While the grant of protective measures is primarily a responsibility of Chambers in Tribunals, the ICC distributes responsibility between Chambers and the Prosecutor. This encourages careful decision-making when granting new measures in the balance of interests. IV. Balance of the Competing Interests The following sections of the paper describe the balance of competing interests between defendant’s rights and victim’s rights before ICTY, ICTR and ICC. The analysis will focus mainly on the use of witness anonymity and the exclusion of the public from the trial chamber of ad hoc tribunals. At the ICC, there are numerous ambiguities of the provisions regarding the victim participation. There are several areas in which tensions and conflicts arise: May victims be allowed to participate from the early stages of the proceedings – even prior to the identification of the potential defendant? Would their participation unduly prolong the proceedings? Is victim participation fully consistent with the presumption of innocence? Does it diminish the perception of independence and impartiality of the tribunal? Does it affect the right to equality of arms? Is the right to confront the accused respected? May victims be allowed to participate anonymously?42 1. Rights in Conflict: ad hoc Tribunal's Experience Victims in war crime trials are often simultaneously the witnesses at the trial, as seen during the ICTY and ICTR proceedings. They are fearful, traumatized and often reluctant to come to court and tell their story in public and in front of the defendant. Specific measures to protect and support

42 (n 14), p. 146.

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these participants are employed enabling witnesses to give evidence in court. They are designed to ensure their safety and make the experience of testifying as minimally traumatic as possible. However, witness protection can conflict with the rights of the defendant to a fair trial. The right to a fair trial includes the right of a defendant to test his accuser through crossexamination in a public hearing. Where witnesses are granted anonymity or the public is removed to protect the witnesses, or documentary hearsay evidence is accepted in place of oral evidence from a witness, a fair trial can be compromised.43 Arguments justifying the use of restrictive measures to protect victims and witnesses often follow a common theme: war crimes trials are unique, taking place in exceptional circumstances. As such, departure from ordinary standards of due process is necessary. Finally, the contention that war crimes trials in general take on a broader purpose than ordinary domestic criminal proceedings will be addressed by looking at the various aims which war crimes trials are said to have.44 Protective measures are provided for by law, just as due process and the rights of the defence are also fundamental requirements.45 The following sections discuss two sets of protective measures which have been used at the ad hoc tribunals – anonymity and exclusion of the public and their influence on the defendant's rights.

43 H Haider and T Welch, The Protection Of Witnesses In Bosnian War Crimes Trials: A Fair Balance Between The Interests Of Victims And The Rights Of The Accused? (2008) 20 The Denning Law Journal, p 55. 44 "In war crimes trials, as with any criminal case, the reliable and comprehensive testimony of witnesses is essential to a fair and effective procedure. The question is – are war crimes trials akin to just 'any criminal case'? Should victims and witnesses in such situations of conflict with extreme and widespread violations of human rights be afforded greater protections, even if potentially at the expense of the rights of the accused? Or do such cases have a broader purpose for post-conflict societies and the international community that they must be held to strict standards of fair trial and rights of the accused? At the same time there is a considerable body of opinion which holds the view that the reliability of witness testimony can only be properly tested under cross examination. However, for witnesses' testimony to be 'comprehensive', witnesses need also to be willing and able to come forward and testify in safety and without fear. Ibid, p 60. 45 Ibid, p 56.

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a. The Use of Protective Measures: Anonymity Rule 69(A) of the tribunal's Rules of Procedure and Evidence states that: 'In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal.' The prosecution's main protective measures included anonymity, whereby victims and witnesses would not be identified to the defendant or to his lawyers; and confidentiality, whereby victims and witnesses would not be identified to the public and the media. In the Protective Measures Decision of the case Prosecutor v Tadić46 the first case to be tried at the ICTY – it was stated that 'a fair trial means not only fair treatment to the defendant but also to the prosecution and to the witnesses' and anonymity was granted. The Trial Chamber allowed the testimony of three anonymous witnesses. In explaining its decision, the Tribunal outlined five conditions for anonymity. First, 'there must be real fear for the safety of the witness or his or her family.' Second, 'the testimony of the particular witness must be important to the Prosecution’s case.' Third, the Chamber 'must be satisfied that there is no prima facie evidence that the witness is untrustworthy.' Fourth, the Chamber must evaluate the existence and effectiveness of any witness protection program. Fifth, measures taken must be 'strictly necessary.' Applying these five factors, and using as a justification the context of ongoing conflict and absence of witness protection program, the protective measures were seen as a contribution of an early-stage Tribunal towards the victims. Many however criticized the use of anonymity, stating it would violate the defendant's right to examine witnesses – and ultimately, the right of the defendant to a fair hearing.47 The Trial Chamber in Tadić48 is the only ICTY Chamber to have granted full anonymity to witnesses. As for the ICTR, it is important to high-

46 Prosecutor v Tadic, Decision on Prosecution Motion for Protective Measures for Witnesses, IT-94-1-T, 10 August 1995. 47 Defendant has a need to know the identities of witnesses in sufficient time in order to prepare the defence and cross-examination. In: (n. 42), p. 10. 48 See above: (n 46).

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light the Bagosora case49, where it was allowed for the Prosecution to continue to veil the identities of witnesses to the defence after the commencement of the trial. The Chamber decided to lift this veil only on a 'rolling basis' throughout the course of the trial.50 The ICTY's Trial Chamber in Blaskić51, a later case, re-struck the Tadić52 balance between the right of the accused to a fair trial and the right of the witness to protective measures by explicitly favoring the rights of the accused over those of the witness. Furthermore, the Trial Chamber in Brđanin53concluded that 'the rights of the accused are made the first consideration, and the need to protect victims and witnesses is a secondary one.' b. The Use of Protective Measures: Exclusion of the Public Tribunal's provisions state that 'hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.'54 Tribunal's RPE authorizes protective measures that allow victims and witnesses to conceal their identities during testimony.55 This includes expunging identifying information from public records; image- or voice-altering devices or closed circuit television; or closed sessions.56 The purpose

49 Prosecutor v Bagosora, Case No. ICTR-98-41-I, Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, paras 23, 25 (5 December 2001). 50 Pozen, J, Justice Obscured: The Non-Disclosure of Witnesses' Identities in ICTR Trials, (2006) 38 New York University Journal of International Law and Politics, p. 299. 51 Prosecutor v Blaskic, Case No. IT-95-14-T, Decision on the Application of the Prosecutor Dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses (5 November 1996). 52 See above: (n 46). 53 Prosecutor v Brđanin & Talić, Case No. IT-99-36, Decision on Motion by Prosecution on Protective Measures, para 20 (3 July 2000). 54 Art 20(4) of the ICTY Statute and art 19 (4) of the ICTR Statute. 55 Rule 75 of the ICTY RPE. 56 These measures can be ordered by the Chamber for „reasons of safety, security or non-disclosure of the identity of a victim or witness; public order or morality; and the protection of the interests of justice.“ Rule 79, ICTY Rules of Procedure and Evidence.

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of those measures is to use them in cases where the nature of the crimes, the trauma imposed on victims and witnesses, or victim's and witnesses's fear of retribution justify such measures. In accordance, the tribunals have taken certain measures to allow witnesses to testify without actually appearing in court, such as the use of testimony via closed circuit television. While closed sessions and non-disclosure of witness identities to the public does not threaten the right of the defendant to cross-examination, the absence of public scrutiny could allow for witnesses to give false or misleading testimony.57 The importance of public scrutiny of trial testimony in deterring such a false or misleading testimony is a key reason why the defendant's right to a public trial is considered a fundamental safeguard of criminal procedure and fairness.58 The testimony of a witness of war crimes could be susceptible to inaccuracy for several reasons: war crime witnesses seem to see independent storytelling as an important part of their role. Those witnesses who appeared at the tribunals testified about events that occurred up to ten or more years ago. In the meantime, they have often communicated with several people: fellow witnesses, journalists, NGOs, or counselors and their stories have sometimes changed over the years.59 The right to a public hearing as such has two purposes: it guarantees the protection of the defendant from secret trials, and it protects the right of the public to scrutinize the integrity of proceedings.60 Overall, it has been noted that witness protection measures were sometimes too easily granted. That implied, more specifically, strong reliance on affidavits over live testimony, closed sessions, face and voice distortion, and even pseudonyms, is what threatens the fair treatment of the defendant.

57 E.g., in the context of ICTR, it was given a comparison between the Rwandan use of Gacaca-type hearings, which are based on a local model of dispute resolution. These hearings involve full disclosure of the identities of both witnesses and victims to everyone in the community, so in light of this traditional Gacaca practice, the ICTR’s decision to shield the identity of witnesses makes little sense. In: (n. 48), p 283. 58 (n 42), p. 69. 59 P M Wald, Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal, (2002) 5 Yale Human Rights and Development Journal, p 236. 60 (n. 15), p 6.

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2. Rights in Conflict: Victim's Participation at the ICC and Defendant's Rights Even though there is nothing prejudicial to the rights of the defendant in allowing victims to participate in proceedings at the ICC, there are a few issues that weaken the protection of the defendant's rights. The ambiguities of the ICC Statute and RPE, the lack of clarity of the procedural model have created a legal framework which endanger the principle of legal certainty and undermine the rights of the defendant. According to the Statute, any balancing between these two competing interests must be premised on the primacy of the rights of the defendant. Despite of the judge's responsibility for ensuring that the victim’s participation is consistent with the rights of the defendant, the practice of ICC Chambers shows that the judges are hesitant to explicitly recognize the primacy of such rights – e.g. the broad definition of victims; permission for the presentation of evidence by victims; the acceptance of the double status as victim and as witness.61 a. Victim Participation and the Right to an Expeditious Trial The general situation of uncertainty regarding the overall procedural framework, together with the lack of clarity as to the specific degree of victims’ involvement in the proceedings, has been prejudicial to the first defendants appearing before the ICC. It has entailed delays and complex procedural debates in these initial cases. Delays, however, should not to be attributed solely to victim participation. Arguably these delays already amounted to a violation of the right to an expeditious trial of the defendants concerned and, although mainly attributable to the drafters of the Statute and the RPE, they may have damaged the image of the Court. Criminal proceedings must not be unreasonably long, otherwise the rights of the defendant are violated, even if this prolongation is due to victim participation.

61 (n. 14), p 137.

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b. Undermining the Presumption of Innocence The participation of victims is not per se in conflict with the presumption of innocence, however, there is at least one aspect of victim participation which creates a potential prejudice. The fact of victim participation entails an underlying presumption that the events (that constituted the crimes) are considered to have occurred in given circumstances and that certain people were actually the victims. Moreover, the ICC Statute explicitly clarifies that the burden of proof rests on the prosecution (Article 66 (2)) and no reversal of the burden is allowed (Article 67 (1) (i)). The fact that victims are allowed to take part in the proceedings cannot alter such rules, which are essential to a fair trial. The judges will thus have to be extremely careful to include in their judgment specific reasoning showing that they did not take the factual basis of the crimes for granted.62 Article 66 ICC Statute provides that ‘[the] onus is on the Prosecutor to prove the guilt of the accused and raises the question whether it is permissible for this burden to be collectively shared by the prosecution, the victims and the judges? c. The Right to a Fair Trial and Equality of Arms The aim of criminal procedure is to ensure that the individual is protected against any potential abuse or error by the public authorities carrying out investigations, prosecutions and trials. For the purpose of participation, by presenting their views and concerns, victims are not parties to the proceedings. They might assume the role and function of parties only in reparation proceedings under Article 75 ICC Statute after a conviction has occurred. The structure of the proceedings is another issue which implies that prior to trial the defendant must be in a position to organize his or her defence. If during a trial, after the prosecution has made their case and the defence has determined their procedural strategy, the judges (proprio motu or at the request of the victims) abruptly decide to call new witnesses or to add new charges, there is a clear risk of unfairness. In this respect the decision in Lubanga63 case to add new charges by adding five new crimes – resorting to Regulation 55, allowed the judges to re-characterize but not to

62 Ibid. pp 146-147. 63 Prosecutor v. Lubanga, ICC-01/04-01/06, Appeals Judgment (7 December 2009) [Lubanga Appeals Judgment on the Legal Characterization of the Facts].

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add new charges. Another sensitive issue for the right of the defendant to a fair trial is the anonymity for victims. In Lubanga, the ICC Pre-Trial Chamber (PTC) allowed the anonymous participation of victims at the confirmation hearing.64 V. Conclusion While some authors hold that there is no conflict of rights and that the rights of the defendant are not jeopardized by victim's participation, others claim the opposite and suggest that there should be primacy of the rights in favor of the defendant, rather than balancing. Indeed, sometimes the rights of the defendant and victim are in conflict. It should be noted however, that the purpose of every criminal trial is to determine the guilt of the defendant – the core aim of the international tribunals and ICC is to investigate, prosecute and punish those most responsible for international crimes, where justice for victims sits secondary to this goal. Victim's needs are not to be underestimated, but their interests could be better addressed elsewhere than in a criminal trial. Tribunals and the ICC cannot deliver justice to the millions of victims of international crimes.65 Instead, the tribunals and ICC represent an international effort to end impunity for international crimes and in doing this they deliver justice for victims. To achieve justice for victims of international crimes, the ICC relies on states to deal with the issues domestically first and only using its jurisdiction as a court of last resort, according to the principle of complementarity. As such a more victim-orientated approach at national level is required, where states are encouraged and monitored to provide redress to victims locally. In light of the tribunal's jurisprudence, it can be said that the International Tribunals have succeeded in principle in fulfilling their obligation to ensure the right to a public hearing while dedicating enough attention to the dignity and safety of victims (witnesses). Protective measures have often been requested and granted. The complete anonymity of a witness, as

64 (n. 14), pp 149-150. 65 Eg, in the Lubanga case there were 129 victims participants, and in the Bemba case participated 5,229 victims. It remains questionable how effective thousands of victim's views and concerns can be effective represented before the Court. In: (n. 39), p 11.

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an especially undesirable measure with a view to the rights of the defendant, was granted only in Tadić66. However, the Trial Chamber in Brđanin indirectly rejected that ruling, stating that 'the rights of the accused are made the first consideration, and the need to protect victims and witnesses is a secondary one.'67 As for the ICC, it has been stated that there are many ambiguities in its provisions and a lack of clarity in the procedural model – e.g. at which stages may victims participate? What does 'participation' exactly mean? Which victims may participate? What will victims participating in proceedings be permitted to do? Concerns have been raised that victim's participation upsets the equality of arms between the defence and prosecution in a way that victims become 'second' prosecutors. There should be nothing prejudicial per se to the rights of the defendant in allowing victim participation in international criminal proceedings, provided that some fundamental principles of due process and fair trial are respected and granted primacy over any other potentially conflicting interest.68 Ultimately, international criminal jurisdictions have enormous potential to lead by example, in setting the highest possible standards for the fair conduct of proceedings domestically.69

66 67 68 69

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(n. 46). (n. 55). Ibid, p139. One of the most important examples is ICTR's impact on the abolition of the death penalty in Rwanda. Clear evidence of its reach has been exemplified in the inclusion of international crimes in domestic penal laws, as well as addressing victim's needs in various ways – through establishments of NGOs, support units, monitoring war crimes trials, enabling the right to compensation, etc.

List of Contributors

Daša Bajec Korent, PhD student of International law at the Faculty of Law, University of Ljubljana. Her field of interest is Human Rights law, with a specific focus on Asylum law. Moreover, as a former athlete, she has a special interest in Sports law. She is a member of the International Law Association. She is currently employed in commercial sector. Vibeke Blaker Strand, Professor of Law (PhD), Department of Public and International Law, the University of Oslo, numerous publications on Human Rights law, personal webpage: http://www.jus.uio.no/ior/english/ people/aca/vibekbla/index.html Daniel Engel, Dr. iur, University of Augsburg, LL.M. (Washington, D.C.), Academic assistant at the University of Augsburg, associate at HengelerMueller (Munich) and lecturer at the University of Augsburg, personal webpage: https://www.hengeler.com/en/lawyers/dr-daniel-engel/ Rui Guerra de Fonseca, Professor of Public Law at University of Lisbon Law Faculty; Senior Research Fellow at CIDP – Center for Research in Public Law, Main areas of research / teaching: Administrative Law; Constitutional Law; Political Science; Legal Philosophy and Legal Theory; International Human Rights Law, numerous publications in the named legal areas, personal webpage: http://www.fd.ulisboa.pt/professors/teachingstaff/rui-guerra-da-fonseca/. Jennifer Hölzlwimmer, akademische Rätin auf Zeit (senior research and teaching position) at the University of Augsburg, Chair for Public Law, Public Regulatory Law and European Law; PhD candidate at the University of Augsburg (doctor thesis on the protection of fundamental rights within the EU), personal webpage: https://www.jura.uni-augsburg.de/lehrende/ professoren/wollenschlaeger/mitarbeiter/jennifer_hoelzlwimmer/ Désirée Hofmann, Dr. iur., University of Augsburg, academic assistant at the University of Augsburg, Chair of International and European law, civil servant at the Bavarian Ministry of Internal Affairs

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Tina Korošec, LL.M. (University of Groningen, 2015), Slovenian State exam 2017, legal officer at the Registry of the European Court of Human Rights, numerous publications in the area of human rights law. Maša Kovič-Dine, Dr. (2017), MSc., teaching assistant at the University of Ljubljana, Faculty of Law, personal webpage: http://www.pf.uni-lj.si/ fakulteta/pedagogi-in-raziskovalci/as-mag-masa-kovic-dine-univ-diplprav/ Stefan Lorenzmeier, akademischer Rat (senior research and teaching position) at the University of Augsburg, Dr. iur. (Augsburg 2008), LL.M. in EC Law (Leiden, 1997). Author of numerous publications on European and Public International Law Dorota Miler, Dr. iur. (University of Passau 2016), LL.M. (McGill University 2012), research and teaching Assistant at the Law Faculty of the University of Augsburg, personal webpage: https://www.jura.uni-augsburg.de/ lehrende/professoren/hellwege/mitarbeiter/miler_dorota/ Kjetil Mujezinovič Larsen, Professor of Law (PhD), Department of Public and International Law, the University of Oslo, numerous publications on Human Rights law; personal webpage: http://www.jus.uio.no/ior/ personer/vit/kjetill/index.html Roman Petrov, Prof., Dr., LL.M in EU Law (Durham University, UK, 1998), PhD in Law (National Academy of Science of Ukraine, 2000), PhD in Law (Queen Mary, University of London, UK, 2005) and habilitation in Law (Law Institute at the Parliament of Ukraine, 2014). Jean Monnet Chair in EU Law and Head of the Jean Monnet Centre of Excellence at the National University "Kyiv-Mohyla Academy" in Ukraine, author of numerous publications on the EU’s external relations; personal webpage:http://jmce.ukma.edu.ua/petrov Isabella Risini, akademische Rätin auf Zeit (senior research and teaching position) at the Ruhr-University Bochum, Dr. iur 2017 Bochum, LL.M. (Chicago-Kent, 2007), author and editor of numerous publications on the ECHR and Public International Law., personal webpage: https:// www.ruhr-uni-bochum.de/ls-puttler/lehrstuhl.html 310

List of Contributors

Vasilka Sancin, PhD, Associate Professor of International Law, Vice Dean for Quality Assurance, Head of Department of International Law, Director of the Institute for International Law and International Relations at University of Ljubljana, Faculty of Law; Founder and Chair of a series of biannual inter-disciplinary scientific conferences on Responsibility to Protect (www.R2Pconference.com); President of the Slovene Branch of International Law Association (ILA); Member of Slovene Inter-Ministerial Commission on Human Rights; Member of Slovene Inter-Ministerial Commission on International Humanitarian Law; Member of the Slovenian National Commission for UNESCO; Member of the Women Network on the Responsibility to Protect, Peace and Security; Expert of the OSCE Moscow mechanism on Human Rights; Slovene candidate for the UN Human Rights Committee in June 2018 elections; numerous publications on issues of Public International Law, including human rights; personal webpage: http://www.pf.uni-lj.si/en/faculty/teachers-and-researchers/vasilkasancin-phd-assistant-professor/. Mirjam Škrk, professor emeritus, former Head of the Chair of International Law, Faculty of Law, University of Ljubljana; former Judge (1998-2008) and Vice-President (2005-2008) of the Constitutional Court of the Republic of Slovenia; part-time legal advisor to the Ministry of Foreign Affairs of the Republic of Slovenia (1992-1998); member of the expert group for the boundary negotiations between Slovenia and Croatia (1992-1998); member of the Slovenian delegation for the negotiations on the succession of states issues to the former SFRY (1992-2001); member of the Slovenian delegation to the UN Diplomatic Conference on the Establishment of an International Criminal Court (1998); conciliator and the former arbitrator of the Court on Conciliation and Arbitration within the OSCE and former (alternate) member of the Court's Bureau (1995-2007); member of the PCA; Agent for Slovenia before the PCA in the Arbitration Between the Republic of Croatia and the Republic of Slovenia., personal webpage: http://www.pf.uni-lj.si/en/faculty/teachers-and-researchers/ mirjam-skrk-phd-professor/ Marina Žagar, mag. iur; PhD candidate at the Faculty of Law, University of Ljubljana; currently working at the Office of the Prosecutor, Special Tribunal for Lebanon.

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Index

accession 113 – accession procedure 17 – EU ECHR 199 Accession Agreement 193 Association Agreement 18 Basic Law – Grundgesetz 117 Bosphorus 16 Charter of Fundamental Rights of the European Union – CFR 12 co-respondent mechanism 16, 148 Commissioner for Human Rights – Council of Europe 54 Committee of Ministers of the Council of Europe 54 complexity 215 comprehensiveness 215 conditionality 215 conflict of laws 126 Convention on the Rights of Persons with Disabilities – CPD 94 Convention on the Rights of the Child – CRC 94 cooptation 267 Council of Europe 16 Court of Justice – ECJ 15 Court of Justice of the European Union – ECJ 133 Criminal Procedure 49 Declaration on the Right to Development 21 Defendant's Rights 305 Direct Application 106

due process 23 Eastern Partnership 18 ECHR – inter-State application 180 ECJ – infringement proceedings 188 – Opinion 2/13 134 – Opinion 2/94 134 – Åkerberg Fransson 114 economic, social and cultural rights 253 ECtHR – Behrami 137 – Boivin 138 – Bosphorus 137 – Bosphorus judgment 133 – Gasparini 139 – margin of appreciation doctrine 133 EEA-Agreement 12 enforcement of international human rights 93 Equality of Arms 296 equivalent protection 133 EU – Eastern Partnership 217 – European Neighbourhood Policy 217 EU Association Agreements 215 EU Council 199 European Charter of Fundamental Rights 113 European Convention on Human Rights 27 – ECHR 30 European Convention on Human Rights and Fundamental Freedoms – ECHR 11 European Court of Human Rights 27 – ECtHR 12, 35 European Parliament 199

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Index European Social Charter 21 – ESC 240 European Union 113 – EU 12, 193 extraterritorial application 253 Fair Trial 23 – Public Trial 294 Federal Constitutional Court – Bundesverfassungsgericht 118 federalised fundamental rights protectio 113 fundamental rights 247 General Assembly 253 German Constitution 14 German Constitutional Court 14 Germany 13 – German legal order 93 global constitutionalism 22, 237 Helsinki Foundation for Human Rights 69 Human Rights Council 22, 253 Human Rights Federalism 17 Independence and Impartiality of the Court 294 International Bill of Human Rights – IBHR 239 International Convention of Civil and Political Rights – ICCPR 20 International Convention on the Elimination of All Forms of Discrimination against Women – CEDAW 94 International Convention on the Elimination of All Forms of Racial Discrimination – ICERD 94 International Court of Justice – ICJ 254 International Covenant on Civil and Political Rights – ICCPR 239

314

International Covenant on Cultural, Economic and Social Human Rights – ICESCR 19 International Covenant on Economic, Social and Cultural Rights – ICESCR 239 International Criminal Court – ICC 23, 289 International criminal law 23 international human rights 237 International Olympic Committee 267 – IOC 19 International Protection Act – IPA 91 Interpretation 33 – systematic interpretation 202 Lisbon Treaty 18, 134 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social, and Cultural Rights – Maastricht Principles 262 neighbourhood policy – EU 18 non-governmental organizations 19 non-refoulment 91 Norway 12 – Human Rights Act 30, 35 Norwegian Constitution 12, 27 Norwegian Supreme Court 13, 28 Olympic Charter 267 on inter-state applications 16 opinion 2/13 15 Poland 13 – Polish law 45 Polish Constitutional Tribunal 47 Post-Communism Issues 58 Presumption of Innocence 23, 293 prevention and sanction mechanism 190 primacy of EU law 124 procedural rights 23

Index right to development 253 right to marry 62 rights of the victims 23 sanctioning 267 shaming 267 Slovene constitution 13 Slovenia 13 – Slovenian Constitution 71 Slovenian Constitutional Court 13, 71 Social human rights 22 social rights 247 sovereignty 116 Treaty revision – constitutional shift 201 Tribunals for former Yugoslavia and Rwanda – ICTY/ICTR 289

UN Charter 256 unitarization of fundamental rights protection 116 United Nations General Assembly – UNGA 20 Universal Declaration of Human Rights 239 – UDHR 239 Vienna Convention on the Law of Treaties 197 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations – VCLTIO 195

315