Address by Dr Luzius Wildhaber, President of the ECHR

Bled, 30 September 2004
 
 
Ms President, ladies and gentlemen, dear colleagues and friends,
 
            It is a great pleasure for me to be here today and to be given the opportunity to address what has indeed become a very topical issue these days: « The position of Constitutional Courts following integration into the European Union ».
 
            Let me say right from the start, on behalf of the European Court of Human Rights, that I am very grateful for being invited to this Conference and associated to the very interesting exchange of views to which it will no doubt give rise. Even tough the European Court of Human Rights is maybe not a Constitutional Court in the proper sense of the term, it has indeed many things in common with the Constitutional Courts of the European continent, not least the fact that it is also affected by the enlargement of the European Union, if only because of the increasing number of State Parties to the Convention where EU law has thus become part of the national legal system subject to review under the Convention, which results in an increased number of applications potentially involving EU law elements.
 
            Over the years, the European Constitutional Courts have always demonstrated a particular commitment to the effective protection of fundamental rights in Europe, including in respect of Community law. We all remember the important role played many years ago by some of those Courts in prompting the European Community to reinforce its own protection of fundamental rights. Everybody has still in mind the reflection-process launched across the continent by the “Solange”-judgments of the German Constitutional Court. The concerns thus expressed were taken into account by the European Court of Justice, which has since build-up through its case-law an impressive set of rights now gradually being endorsed by the EU legislature. Recent developments such as the adoption of the Charter of fundamental rights and the Constitutional Treaty may now also need to be taken into account in this reflection-process.
 
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Yet, even without a legally binding Charter, the fact remains that as far as fundamental rights are concerned, we have already now three different types of legal sources co-existing in Europe: national sources, including the fundamental rights contained in the Constitutions of the Members States; international sources, such as the ECHR; and finally EU law sources, including the case-law of the European Court of Justice. From this perspective, the entry into force of the Charter would only be an additional – albeit quite important – component of the already existing EU sources.
 
We also have three different types of jurisdictions applying those different legal sources: the domestic courts of the Member States, the two Courts of the European Union (seated in Luxembourg) and the European Court of Human Rights. The result is that no jurisdiction in Europe today is absolved from applying or respecting fundamental rights, which in itself represents already a huge achievement of the European legal and moral culture. The question, however, remains as to what fundamental rights all these jurisdictions are applying and whether they all mean the same thing?
 
What makes the situation particularly tricky here is the fact that the different legal sources mentioned are not compartmentalized in the sense that each court would have to apply only the fundamental rights of its own legal system. Rather, in most cases different sources will have to be combined, as the legal systems concerned do not only co-exist but also overlap each other. This is especially true for the domestic courts of the Member States which, in cases involving EU law, may have to take into account up to three different sources simultaneously: their own national law, the European Convention on Human Rights and EU law. In this respect, domestic courts can be said to play a central role in the European protection of fundamental rights. In EU law they are often called “Community courts of ordinary jurisdiction”[1]. In fact, one should add that they are to the same extent “Convention courts of ordinary jurisdiction”, as it is first for them to apply the Convention, since the Convention makes it an essential requirement for any complaint to be declared admissible by the Strasbourg Court that it has been duly raised before the domestic courts of the respondent State.
 
All of this, of course, leads to a fairly high amount of complexity. Don’t misunderstand me, however. I am not calling into question the co-existence of those different legal systems, each with its own set of fundamental rights. I am even less denying the legitimacy of such a co-existence, as I consider it an essential part of our legal tradition, which itself reflects nothing but an important aspect of European cultural history and diversity. The fact remains, however, that the co-existence of all these overlapping legal sources raises at least two major challenges for the future: one in respect of efficiency of human rights protection, the other – linked to the first – in respect of the need to preserve legal certainty.
 
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To make clear what I have in mind when talking about efficiency, let me tell you the story of Mr Koua Poirrez, whose case we recently had to deal with in Strasbourg[2]. Here was a physically disabled applicant, a national of Ivory Coast, who had been adopted as an adult by a French citizen although he did not thereby acquire French nationality. He applied for an adult disability allowance but his application was turned down on the ground of his Ivory Coast nationality. The court hearing his appeal decided to ask the Court of Justice of the European Communities for a preliminary ruling on the compatibility between the relevant French law and Community law, on the basis that the applicant was a direct descendant of a citizen of the European Union. The Court of Justice found that Community law did not apply to the facts of the case: although the applicant's adoptive father was indeed a national of a Member State of the European Communities, he did not qualify as a migrant worker since he had always lived and worked in France. On the strength of this Luxemburg judgment, all the French courts which successively dealt with the appeal rejected the applicant’s request for a disability allowance He then applied to the Strasbourg Court which, in a judgment of 30 September 2003, i.e. more than 13 years after he had originally applied, found that the applicant had been the victim of discrimination based on nationality, contrary to Article 14 of the Convention taken together with Article 1 of Protocol no. 1, and, ruling on an equitable basis, awarded him  20 000 euros for the damage he had suffered.
 
What can we learn from this case? Actually there are many lessons. First, it shows the complementarity of the three legal systems involved, but also the complexity of their interplay: French law contained an element of discrimination which Community law was powerless to remedy because it did not apply in the particular case; accordingly it was only in Strasbourg that the situation could finally be remedied. However, even if Community law had applied, a preliminary ruling on the merits by the Court of Justice would not have prevented the final domestic judgment in the case from being challenged by the applicant before the Strasbourg Court. This is another important element emerging from this case[3].
 
The Koua Poirrez case furthermore highlights the problem of the length of proceedings in Europe.  As I just said, the applicant had to wait for more than 13 years before finally being vindicated in Strasbourg. Would that be a reason to consider the future abolition of one of the players involved in this type of proceedings, so as to shorten them for the benefit of applicants? The answer is no, because each of these players -- the national courts, the Court of Justice and the Strasbourg Court -- has a key role to play. While it is true that the Court of Justice had no option but to rule that Community law was not applicable to the facts of the case, it would not have taken much for Community law to apply and for the Court of Justice to be required to rule on whether French law contained an element of discrimination that was contrary to Community law. It would have sufficed if for example the applicant's adoptive father had been a German or Italian rather than a French national.
 
So what needs to be done about such delays? Part of the solution must undoubtedly come from the domestic courts. In this respect, it is quite astonishing to find a domestic court inquiring of its own motion about the effects of Community law -- which in the event was inapplicable -- but failing to consider the impact of the European Convention on Human Rights, which not only was applicable, but moreover had been violated. If the domestic courts had applied the Convention of their own motion, the applicant might not have had to wait for more than 13 years before receiving the allowances to which he was entitled.
 
In the long term, however, we will not escape the need to consider such issues from a wider perspective and the plurality of legal systems involved in terms of their complementarity and interdependence. That should enable us to simplify and streamline the number of procedural steps to be taken by those individuals who seek to assert their rights.
 
 
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As I indicated, another major challenge of the years to come will be the preservation of legal certainty and harmony amidst all those different legal sources of fundamental rights, through a coordinated and harmonized approach designed to avoid confusion and relativism in this sensitive but most important area. This implies that while each legal system should be allowed to have its own fundamental rights and levels of protection, adapted to the specificities of the State or system concerned, it is equally essential to have a coherent approach in respect of the rights which are common to most of the legal systems concerned, especially those laid down in the European Convention of Human Rights. Because they are common to all European legal systems, they can truly be said to build the ius commune of fundamental rights in Europe.
 
Here we have to keep ourselves aware of the fact that the same persons can have to claim the same rights under different legal systems. Remember Mr Koua Poirrez who invoked basically the same right – the right not to be discriminated against – first under French law, then under Community law and finally under the Convention, each time with a different result. Applicants would find it hard to understand – and rightly so ­– why, if they are so “fundamental”, the meaning and content of the same fundamental rights should vary according to the legal system involved. To take just a few other examples: it would indeed seem hard to justify why the right to liberty and security would have a different effect according to whether or not a person was arrested in pursuance of a European arrest warrant, or why a defendant in anti-trust proceedings should not be able to rely on the same procedural rights for the mere reason that foreign partners were involved in the impugned offence?
 
Fortunately, a lot has already been achieved in this respect, not least thanks to an excellent cooperation between the Constitutional Courts of the EU Member States, the European Court of Justice and the European Court of Human Rights.
 
 
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            The Convention has indeed a lot in common with European Constitutions. The Strasbourg Court has repeatedly qualified the Convention as « constitutional instrument of European public order »[4]. In 1998, it noted that the Preamble to the Convention refers to the “common heritage of political traditions, ideals, freedom and the rule of law”, of which national constitutions are in fact often the first embodiment.”[5] Through the fundamental rights which they set forth, the national Constitutions indeed share the same basic democratic ideals as the Convention, the very essence of which is – as the Court repeatedly put it – respect for human dignity and human freedom.[6]
 
In some Contracting States, like Austria, the Netherlands or San Marino, the Convention has even been given constitutional status, whereas in most others it ranges in the hierarchy of norms somewhere in between the Constitution and the ordinary legislation. In this respect, however, the Convention makes no provision for any particular status in the domestic legal order of the Contracting States, what matters being only that the legal system concerned operate and produce results in compliance with the Convention. As the Court put it, Article 1 of the Convention, which requires the States Parties to secure the rights and freedoms laid down in the Convention, “makes no distinction as to the type of rule or measure concerned and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention. It is, therefore, with respect to their “jurisdiction” as a whole – which is often exercised in the first place through the Constitution – that the States Parties are called on to show compliance with the Convention.”[7]
 
            Fortunately, real conflicts between the Convention and a constitutional norm remain quite rare, as Constitutional Courts tend to interpret the Constitution in conformity with the Convention. Moreover, most constitutional standards go beyond the Convention standards which, as we all know, seek to establish a minimum protection level rather than a uniform one. I could give you many examples of cases in which the Strasbourg Court drew to a considerable extent on domestic constitutional jurisprudence. This was for instance particularly obvious in the case of Pretty v. United Kingdom, in which the applicant, who was paralysed and suffering from a degenerative and incurable illness, alleged that the refusal of the Director of Public Prosecutions to grant an immunity from prosecution to her husband if he assisted her in committing suicide and the prohibition in domestic law on assisting suicide infringed her rights under Articles 2, 3, 8, 9 and 14 of the Convention. In finding that those provisions had not been infringed, the Court endorsed to a large extent the reasons on the basis of which the House of Lords had come to the same conclusion.
 
            Thus we can see a good deal of complementarity between the Convention and the Constitutions of the Contracting States. And I haven’t even addressed yet the essential role of constitutional adjudication in preserving the future of the Convention system. It is a secret to nobody that the Strasbourg Court hasn’t been devised nor equipped to handle applications from all 800 millions potential applicants living in the Contracting States. This is why I can only strongly call on domestic courts – and constitutional courts in particular – to secure the Convention rights at domestic level, if possible even of their own motion, so that applicants do not have to come to Strasbourg to assert their rights. Nobody, neither the applicants nor the authorities, benefit from judgments delivered 5 or 10 years after the relevant facts. Justice delayed is indeed justice denied.
 
In this context, I should mention that the Court has recently reinforced through its case-law the subsidiary nature of the Convention and that in the context of the recent adoption of Protocol 14 reforming the Convention system, a number of recommendations were also adopted by the Committee of Ministers of the Council of Europe which are designed to raise awareness of public authorities of their responsibility in respect of Court judgments revealing an underlying systemic violation.
 
 
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            Now it appears that discussions about the relationship between the Convention and the national Constitutions have recently intensified, following the adoption of the Charter of Fundamental Rights and the Constitutional Treaty of the European Union. Questions are being raised as to the impact of those instruments, in the event of their entering into force. Of course I am not in a position to give a comprehensive answer to those questions here. I would like, however, to make some brief observations from a Strasbourg perspective, focussed on the notions of added value and legal certainty.
 
            Let me first say that I have no difficulty in joining those who consider the Charter of Fundamental Rights to represent an added value for the European Union. In Strasbourg we have always considered that in view of the founding role of fundamental rights, the respect of which is an essential element of the necessary legitimacy of any public action, it is quite normal for the EU, to which a considerable amount of State powers have now been transferred by its Member States, to formally adopt its own catalogue of fundamental rights. In addition, it is clear that the Charter contains a wider variety of rights than the Convention does, even though some of those presented as new are nothing else but the legislative translation of well-established Strasbourg case-law and others lack a proper justiciability.
 
            That, however, is not a problem, since the Convention itself provides for the possibility for the Contracting States to apply higher standards than those of the Convention. What matters much more is that legal certainty in respect of those rights which the Charter borrows from the Convention is not put at risk. In this respect, we have reasons to be (cautiously) optimistic.
 
            First of all, it clearly appears from the wording of the general provisions of the Charter, and especially from Article 52 § 3 (Article II-112 § 3 in the Constitutional Treaty) that the Charter is not intended to compete with or challenge the Convention, but rather to build upon it by formally introducing its rights as minimum standards which henceforth do also apply under EU law. Thus, however paradoxical that may be, the Charter somehow reinforces the Convention in its role as ius commune of fundamental rights in Europe.
 
            Of course, much will depend in this respect on how the Charter will be interpreted in practice. Here too I have every reason to be confident, in view of the outstanding jurisprudence of the European Court of Justice, to which I would like to pay tribute here, as it demonstrates a very high sense of responsibility and commitment to maintaining the highest possible level of harmony between the European Convention on Human Rights and EU law.
 
As such, however, that is not sufficient to guarantee full compliance with the Convention. I don’t need to explain that to constitutional judges: the best of intentions and efforts on the part of domestic courts – however necessary they are – are no substitute for an effective review by the Strasbourg Court! This is why, in a move reflecting the parallelism which the Laeken Declaration[8] established between the Charter and accession of the EU to the Convention, Article 7 § 2 of the Constitutional Treaty now provides that the EU should finally take that step.
 
I do not want to dwell very long on the need for accession, which has now been commonly accepted as a necessity. Let me just mention one aspect of it, which so far has not attracted much attention but which is getting increasingly important: the participation of the EU in Strasbourg proceedings. Under the present system, this participation can only be secured on an ad hoc basis, by conferring on the European Commission the status of amica curiae. This is for instance how we did it in the Bosphorus v. Ireland case, which was heard by a Grand Chamber of the Court a couple of days ago and which raised the questions of Ireland’s responsibility under the Convention for having impounded an aircraft in pursuance of EC Regulations adopted with a view to boycotting economic interests of the former Yugoslavia.
 
As the domestic law of the Contracting States and EU law are getting increasingly intertwined, there is a fair likelihood that ever more cases against States will involve EU law elements. Not only should they be properly argued, including by qualified and duly authorized representatives of the EU with a locus standi in the procedure before the Court, but the respondent States should not be left alone when it comes to implementing those parts of a Strasbourg judgment which entail changes to EU legislation. This is why in such cases the EU should be made a defendant alongside the respondent Member State, which can only be achieved through accession. There is therefore some urgency in seeing accession of the EU to the Convention become reality, at last.
 
            Thank you.


POVZETEK USRS

Zaradi vedno večjega števila držav pogodbenic, v katerih je pravo EU postalo del njihovih pravnih sistemov, širitev EU zadeva tudi Evropsko sodišče za človekove pravice (ESČP). Povečuje se namreč število pritožb, ki utegnejo vsebovati elemente prava EU. 
 
Evropska Ustavna sodišča so odigrala pomembno vlogo pri zagotavljanju učinkovitega pravnega varstva človekovih pravic v Evropi. Ne pozabimo na "Solange" sodbe Nemškega Ustavnega sodišča, ki so povzročile, da je Sodišče Evropskih skupnosti (Sodišče ES) razvilo sodno prakso z impresivnim katalogom pravic, ki jih postopoma prevzema zakonodaja EU, vključno z Listino temeljnih pravic EU (Listina) in Pogodbo o Ustavi za Evropo (Evropska Ustava).
 
Tudi brez pravno zavezujoče Listine imamo na področju človekovih pravic v Evropi tri različne tipe pravnih virov: nacionalne vire, vključno z Ustavami, mednarodne vire, kakršna je EKČP, in končno vire prava EU, ki vključujejo sodno prakso Sodišča ES. Posledično imamo tudi tri različne jurisdikcije. Posebej težavno pri tem pa je to, da morajo jurisdikcije različne vire kombinirati, ker ti ne le soobstajajo, temveč se tudi prekrivajo. Ta zapletena situacija prinaša dva izziva za prihodnost, tj. vprašanje učinkovitosti varstva človekovih pravic in vprašanje zagotavljanja pravne varnosti.
 
V zvezi z učinkovitostjo je zgovoren nedavno obravnavan primer pred ESČP Koua Poirrez v. Francija (30. 9. 2003). O njem je ESČP odločilo po 13 let trajajočem postopku, ki je vključeval tudi postopek predhodnega odločanja pred Sodiščem ES. To sodišče je ugotovilo, da prava ES v tem primeru ni mogoče uporabiti. Presenetljivo je, da je nacionalno sodišče na lastno iniciativo "poizvedlo" le o možni uporabi prava ES, ni pa upoštevalo Evropske konvecije o varstvu človekovih pravic in temeljnih svoboščin (EKČP), ki prepoveduje diskriminacijo na podlagi nacionalnosti. Naveden primer kaže, da je za pospešitev sodnih postopkov odločilno, da nacionalna sodišča upoštevajo vse navedene vire in uporabijo tudi EKČP, če je le mogoče na lastno iniciativo, tako da pritožnikom ni treba priti v Strasbourg.
 
Glede vprašanja pravne varnosti avtor ugotavlja, da je za posameznike upravičeno težko razumljivo, da imajo lahko iste temeljne pravice v omenjenih treh sistemih različno vsebino. Na srečo so v praksi konflikti med Konvencijo in ustavnimi normami redki. Ustavna sodišča namreč razlagajo Ustave v skladu s Konvencijo oziroma celo presegajo minimalne konvencijske standarde.
 
V zvezi z razpravo o odnosu med Konvencijo in nacionalnimi Ustavami z vidika Listine in Evropske Ustave pritrjuje stališčem, da ima Listina "dodano vrednost" za EU. Pri tem meni, da je glede na temeljno vlogo človekovih pravic za legitimacijo delovanja vsake javne oblasti in glede na obseg prenesenih pristojnosti na EU, njen sprejem razumljiv. Jasno je tudi, da vsebuje več pravic kot EKČP; ne glede na to, da nekatere od njih pomenijo le kodifikacijo ustaljene sodne prakse Strasbourškega sodišča, nekatere pa niso neposredno iztožljive. Vse to pa ni problematično glede na možnost držav članic, da zagotavljajo višje standarde. Paziti pa je treba, da raven pravnega varstva konvencijskih pravic, ki jih prevzema Listina, ni ogrožena. Ob upoštevanju splošnih določb Listine in njenega tretjega odstavka 52. člena Listina pravzaprav nekoliko paradoksalno krepi vlogo EKČP kot ius commune človekovih pravic Evrope. Kljub temu meni, da to ni dovolj za zagotavljanje popolnega spoštovanja EKČP. Obstaja tudi potreba po pristopu EU k EKČP. Pristop EU k EKČP bi podelil EU položaj stranke (locus standi) v postopku pred ESČP v primerih, ki bi vsebovali elemente prava EU (doslej le kot amicus curiae). To bi ne le omogočilo, da bi se ti primeri ustrezno argumentirali s strani kvalificiranih predstavnikov EU pred ESČP, ampak tudi to, da odgovorne države ne bi bile prepuščene same sebi pri uresničevanju tistih delov Strasbourške sodbe, ki zahteva spremembo zakonodaje EU.