6. Multilevel Protection of Human Rights in Europe READING ITEM 1
A Human Rights Protection Competition in Europe? The different levels of protection
This Reading Item comments on the relevant case-law of national constitutional courts, the Court of Justice of the European Union and the European Court of Human Rights. (Edited by Péter Kruzslicz)
INTRODUCTION AND LEARNING OUTCOMES
Human Rights are not only legal norms setting limits to exercise of public power but, as we have seen, they are also social and even cultural values. Thanks to their importance, nowadays, they benefit from protection on different levels in Europe. First, the national, constitutional protection of Human Rights results from a long and permanent evolution of the concept of these rights but also from that of the modern State and of constitutionalism.
Secondly, an international level of protection has been created at the regional, European level, so that it could offer an external control for the respect of Human Rights. Following the political and, in parallel, the legal evolution in Europe, for the first time after World War II, then after the change of regimes in Central and Eastern European countries, an important number of States are now part to this regional protection system, ensuring not only an efficient control of the respect of Human Rights but also a standardization in the field.
Thirdly, with the European integration process, due to the sui generis legal system of the EU with its special characteristics, the protection of Human Rights was complemented by a third framework. This was first developed through judicial protections as general principles inspired also by the constitutional traditions common to the Member States and the European Convention of Human Rights, the protection of Human Rights has been guaranteed in the framework of the European Union’s legal system. Then, with further evolution, especially after European integration was launched in political fields, the development has led to a complex structure of protection of Human Rights in EU law. Those three different levels are working in connection with each other.
Learning outcomes
1. Understanding the different levels of protection (sources and forums).
2. Understanding the connections between the different levels.
3. Being able to argue for the complementary character of the different levels of protection.
Keywords: multilevel protection, national constitutionalism, EU law, European Convention of Human Rights, Charter of the fundamental rights of the EU, European Court of Human Rights, Court of justice of the European Union, external protection of Human Rights
Necessary time: 1,5-2 hours
6.1. The Legal Aspect of Human Rights Protection in Three Different Frameworks At the beginning of the 21st century, three different legal frameworks have been elaborated for the Protection of Human Rights (PHR) in Europe. Each of them represents a catalog of Human Rights and ensures an efficient protection for them thanks to a judicial forum having the competence to control the respect of these rights. Their importance is the main reason for such a complex system of protection, based on the political willingness to guarantee persons’ fundamental rights in the exercise of public power. External control has been established to prevent any violation by the States and to guarantee the preservation of liberal constitutionalism in Europe. The protection of Human Rights has also been established in the framework of the EU as public power is also exercised at that level. Also, the national-level constitutionalism required the protection of Human Rights, as we have seen, at the level of the EU.
National PHR. As discussed before, based on theoretical evolution, and developing philosophical and political thought, and after the development of the political background, with the appearance of the modern States, the question of PHR has been raised in Europe. First, the importance of rights has been recognized. Then, independent of the theories, a positive list of rights was created for an effective protection, and those lists were codified and/or elaborated by the case-laws of the different countries. Finally, with the theory of constitutionalism, in many countries with regard to the specialty of the rights, particular judicial forums have been created to ensure efficient protections.
Regional, European PHR. After World War II, the regional layer of PHR manifested in the framework of the Council of Europe not only because of the tragedy of the war, through which the exclusively national protections of constitutionalism, e.g. for such fundamental rights as human dignity, were massively violated, but also because legal protections of liberal democracy had to be established before the formation of the bipolar world in the European territory. With a proper catalog of Human Rights and especially thanks to the establishment of the ECtHR as a proper court to control their respect, external control was guaranteed. After the change of regimes in Central and Eastern European countries, the protection has been widened to those States.
EU PHR. Even though European integration was launched in the fields of a stronger economic cooperation regarding the establishment of the common market and lead to the four freedoms (free movement of persons, goods, services and capital), the question of the protection of Human Rights has been raised quite early in the framework of the so-called European Communities. The basic reason for this was that a new level of exercising public power appeared in the form of judicially declaring a sui generis legal system on the level of the EU. As the efficiency of the integration required that the EU legal norms were to be applied directly in the national legal systems, benefitting of this primacy, the protection of individuals’ fundamental rights were to be established as well
The Three Levels of Human Rights’ Protection
Sources:
Albeit we might admit that Human Rights are natural rights, a proper source for their protection is required to make them lasting and efficient. The first sources of Human Rights are declarations as they reflect the idea that Human Rights are natural rights, but to serve as a legal basis to define their content. Also, in the same approach, but already because of the effective protection, the case-law becomes a source of PHR. In addition, because of their general and abstract content and once again due to their natural existence, they can also be protected as general principles. Finally, and most often, Human Rights as fundamental rights are usually enumerated by legal documents, such as constitutions or international conventions.
Forums:
For the effectiveness of their protection, judicial forums shall be competent to control the respect of Human Rights. In every legal system where legal acts are adopted by the public power, and are consequently applied, their application is controlled. Such a judicial competence is quintessential. Because of the special character of the rights, a special constitutional forum can be established, and even outside of the State, an external control guaranteed.
National constitutional level EU level
Regional European level
Internal protection:
constitutionality
External protection: the
Europeanisation of PHR
For a comprehensive approach to the three different levels of PHR, it is important to highlight that all of the levels aim at ensuring an efficient and effective protection. Also, it needs to be understood that the three different levels have and can have their own characteristics as they are founded in legal sources special to them and are applied in those forums that they create to ensure PHR.
The Three Levels of Protection
Human Rights Protection
Nationalconstitutional law
Sui generis EU legal system
European Convention on
Human Rights
National constitutional
constitutional sources:
constitutions, declarations
constitutional and/or ordinary
judges
EU level
Charter of fundamental Rights and Genaral
Principles
Court of Justice of the European
Union
European level
European Convention on
Human Rights
European Court of
Human RIghts
6.2. The Levels of PHR in Europe National level:
The legal framework of PHR has appeared with the modern States. Nonetheless, the idea of PHR is founded in more general philosophical and political concepts which have their origins in Antiquity and especially in Renaissance and Reformation. At some point, the development of feudalism has also contributed to the appearance of the different basic notions of PHR.
Liberal Revolutions:
The prevalence of liberal values in PHR either were the results of a more organic development such as in the case of the United Kingdom, or of a successful revolutionary turn based on preceding philosophical development, as in France.
The Human Rights have been first declared at the same time as modern constitutions appeared.
The legal framework of the State does not only constitute a proper legal basis for exercising public power but also sets out the limits of such an exercise of power in institutional aspects, and with specific protections for fundamental rights.
Constitutionalism:
Effective PHR can be guaranteed:
by a decentralized protection ensured by the ordinary courts such as in the Anglo- Saxon model,
by a centralized protection for which a special, constitutional court is competent as in continental European countries.
This second model is based on constitutionality:
According to the idea of rule of law, public authority is subject to the respect of the legal framework, and ensures the legitimacy of the public power in parallel with its democratic source. The Constitution is placed at the top of the hierarchy of legal norms as a paramount safeguard and a special judicial forum is established to protect the Constitution and enforce the constitutionality of norms adopted in the exercise of public power (i.e.
their conformity with the Constitution) – These bodies are (usually) constitutional courts.
The limitation of the public power takes place in the framework of a national constitutional system and results in the national-level protection of Human Rights. (The respect for human rights is an important principle of constitutionalism.)
European level:
The idea of PHR outside of the national constitutional framework appeared with the concept of integration breaking the legal monopoly of the State to regulate such issues.
After World War II, in Europe, two systems of integration were established:
- political integration: Council of Europe
- economic integration: European Communities These two Europes take part, in a very different way, in PHR.
The Council of Europe:
For the protection of liberal democracy:
o democracy o rule of law o Human Rights
In a bipolar international context, demonstrating the difference between the West and the East.
Establishes the ECHR and the ECtHR.
The European Union:
For the establishment of a common market:
o sui generis legal system
direct effect
primacy
o fundamental freedoms
However, as public power is exercised in accordance with the system of competences outside of the Member States, national constitutional requirements have made clear the need for an effective protection of Human Rights on this level as well.
Evolution:
- judicial protection
o general principles
o constitutional traditions common to the Member States o European Convention of Human Rights
- a complex structure of protection with the Lisbon Treaty (Article 6)
Evolution on Three Levels
As for the national protection:
As for the Council of Europe:
As for the European Union:
National
- limitation of power
- constituonalism
Council of Europe - external control
European Union - own structure of protection
Liberal Revolutions
Theory of Constitutionalism
Constitutional Protection
Protection of Liberal Democracy
European
Convention European Court
Sui generis legal system
Constitutional
requirements Lisbon structure
6.3. A PHR Competition?
With the three levels of protection, having not only their own history, basis and development, but also their proper catalog of rights and their own forums to protect them, it is to be understood what the relations between those levels are, as
The same persons are protected. Independently of the level of protection, the citizens of the State (be it natural or legal persons) are the subject to the protection.
The same rights are guaranteed. Even though the catalogs of rights are not exactly the same in national constitutions, in the ECHR and in the Charter of Fundamental Rights of the EU (this last one being complemented with general principles inspired by common constitutional traditions and the European Convention with the case-law of the European Court), the rights are similar albeit they can be interpreted differently.
The same exercise of public power is limited. For national and regional, European PHR, the idea of protection always goes against the exercise of public power by the State. Of course, for the European Union, exercising public power is a question of competences, but the EU’s action is also based on public power, and Member States often exercise their public power because of the EU when participating in the adoption, application or control of the application of EU legal norms.
Between the national and the European regional level:
The protection ensured by the European, regional level is complementary to the national level:
- the ECHR is a basic list which should be at the origin of a minimum protection, - for that reason, the control exercised by the ECtHR complements national control.
A person should ask for PHR first at the national level (subsidiarity). When the effective protection is not ensured at the national level, then the European level will be opened, where the list of the rights as well as their interpretation manifests in general standards and a minimum content of PHR.
The development of the case-law leads to a standardization: National constitutional courts refer to the case-law of the ECtHR and the protections on the regional level become more and more detailed, thanks to the evolution of the case-law.
Between the national and the EU level:
The protection at the level of the EU was required by the national level:
- the Court of Justice of the European Union relies on the national constitutional traditions common to the Member States,
- however, an effective protection is ensured in the framework of Union’s law.
The difficulty is due to the fact that the two legal systems are not separated. EU legal acts are directly applied in national legal systems and are benefitting of the primacy thus no national legal norm can limit their effect. National-level constitutionalism requires the respect of limits of the power, including the respect of Human Rights.
EU law accepted the control of the respect of Human Rights in the framework of its own legal system, by its own court, based also on the national constitutional traditions.
Between the European regional and the EU level:
The protection at the level of the EU is also required as regards the ECHR:
- Even though the EU is not a party to the Convention – The Lisbon structure provides for its accession, without any result – when EU law appears in the legal framework of the Member States, Rights as guaranteed by the Convention, should be protected.
- EU PHR is only possible in the framework of its own legal system and by the CJEU.
The difficulty is due to the fact that if the EU will not join the ECHR, its actions can only be controlled at the European regional level through the examination of national legal systems.
The international obligations of the Member States to respect Human Rights as protected by the Convention, imply that the EU’s actions should also fall under this limitation.
EU law accepted external control under the provisions of the Convention, but only in the framework of its own legal system, by its own court, based also on the European Convention.
Questions for Self-Check
1. What are the main reasons of the appearance of a multilevel PHR?
2. How do European integration systems contribute to the appearance of a multilevel PHR?
3. What is the Charter of Fundamental Rights of the European Union, what are its effects?
4. What is the standardization in PHR?
5. Why do the EU’s actions imply PHR?
6. How does EU law try to satisfy the requirements of PHR?
This teaching material has been made at the University of Szeged, and supported by the European Union. Project identity number: EFOP-3.4.3-16-2016-0001
