Determine Whether or Not the EU Should Join the ECHR

The aim of the paper is:

• to define what is the EU and ECHR; to critically analyse and discuss the great possibilities and challenges of the accession of the EU to the ECHR and;
• to determine whether or not the EU should join the ECHR

This topic was chosen because of the need to explore in dept a pertinent topic and at the same time garner a wider reading on the European Union.

The founders of the EU were Germany, Italy, France, Belgium, Luxembourg and Netherlands. It has 27 member states and approximately 500million EU citizens. It comprise of its own court system called the European Court of Justice (ECJ). It is a unique legal system which operates alongside the laws of the member states of the EU. It is nongovernmental and has a new legal order in international law for mutual social and economic benefit for its member states. The EU was born out of a time after the Second World War, it was decided that the very coal and steel that Germany and Italy fought over, if free access was given to it then the result would be peace.

To the layman who may be quite confused as to whether the EU and ECHR is one in the same; though they both serve the people of Europe their functions are quite different.

The European Convention on Human Rights deals with the individual rights and freedoms of individuals; it was formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention established their own court which is called the European Court of Human Rights. Any person that feels that their rights have been violated under the convention by any member state can bring their case to the ECTHR. The leaders of the war torn country of Europe came together and the European convention on human Rights was established by Winston Churchill. The ECHR sets up a clear view of what individual rights are for example: the right to life, the right to marry, freedom of speech and religion etc. These rights are enforced and protected to ensure that no government can haphazardly pass legislation especially if it violates the people’s rights, these rights can be said to be written in stone.

The coming together of these two supranational organisations has been in the making for years. Though the accession is not complete there is an issue when it comes to case-law of both courts. Subsequently this is discussed.

“The European Convention on Human rights and European Union law: a long way to harmony” views the both courts as seeking to adjust each other’s case law. With the ECJ since 1975 ruled that the convention had “special significance” when referring to the legal sources that has to be taken into account to identify the fundamental rights under the EU law. The ECJ has followed the ECHR case law even though the EU is not a part of the convention. Evidence of this is shown in the following case.

In Matthews v United Kingdom where the ECHR found a breach in the convention in pursuant of the 1979 Act by the United Kingdom, they refused to allow a resident of Gibraltar from participating in the elections of the European parliament. The United Kingdom knew that any attempts made by them to amend the 1976 Act by the EU would be opposed by Spain with regards to the Matthews judgement; the United Kingdom passed a domestic law solution and passed the European parliament (Representative) Act 2003. Spain challenged the 2003 Act and the appeal was dismissed by the ECJ and it was emphasised that EU law must be interpreted in compliance with the Matthews judgment.

A comparable concern about harmony with eu law and ecj jurisprudences is illustrated by the europan court of human rights in the following case.

Maslov v Australia where a Bulgarian national who lawfully entered Australia since he was six got into a series of trouble involving aggravated gang bugulary, assault among other offences. The court decided when sentencing noted the mitigating and aggravating features like his failure to attend drug therapy as ordered, and subsequently the suspended sentence that had previously been imposed was revoked so as a result a ten year residence prohibition was put on the juvenile pursuant of s36 (1) of the Aliens Act 1997 he appealed to the European convention on human rights and It was held that there was a violation of article 8 of the convention.

Miscallef v Malta where an applicant’s sister Mrs M was sued by her neighbour in a civil suit in connection with a dispute among them. The matter reached the court of appeal it was presided over by the chief justice. Mrs M lodged a constitutional appeal with the civil court alleging that the Chief justice had family ties with the lawyer representing the opposing side and in so doing was not impartial. It was held that there had been a violation of art 6(1) of the convention. Consequently, with the problems faced in case-law between the EU and ECHR the question arises whether the accession should definitely take place.

Even so, whether the arguments are noteworthy or not the fact remains that the Lisbon treaty has made it mandatory for the EU to accede to the ECHR. With this highlights further concerns, one such concern was expressed by Tobias Luck which identified the issue of ‘who will be the respondent?”

The majority of complaints made to the Strasbourg court deals with individuals making applications under art.34 ECHR. Under the current law the eu cannot be sued before the Strasbourg court and any application against the eu is inadmissible ratione persone. This does not mean that any of the member states can escape its responsibilities under the convention by transferring competence to the eu this was made clear by the ecthr in Matthews. With regards to Member States responsibility for secondary eu law, the ecthr re-emphasided this in the following case:

Bosphorus:

The applicant company which was in turkey leased an airplane from a Yugoslavia airline company. The applicant was solely responsible for the crew and the destination and security pertaining to the plane and the running of it. A law was passed that all states should impound any aircraft in their territories in which a majority of the controlling interest was owned, controlled or run by someone from the former Yugoslavia. One of the applicants plane was impounded and the high court found that the law that required the plane to be detained did not apply to the applicant’s plane so he was not in breach and the decision to impound the plane was ultra vires. On appeal the Supreme Court referred the matter to the European court of justice which found that there was a violation of article 8. The applicant complained to the European court of human rights that his rights were violated. The European convention on human rights then held that the eu legal system protected fundamental rights in a manner that was equivalent to the convention. Therefore the bhoporus presumption which is where the member state had no discretion in implementing secondary law, it is presumed that the state acted in compliance with the convention. This presumption is however rebuttable in cases where it is clear that the protection in the concrete case was deficient.

However, Connolly1 holds a different view from the abovementioned case, it dealt with a labour law dispute between the EU and its employees. No respondent of any member state took action so the application was declared inadmissible. A positive action that will come out of accession of the EU to the ECHR would change the result of the latter case. In that example no member state took action therefore presently it is not reviewable by the ECTHR; the EU would be directly responsible in Strasbourg.

What may take much deliberation is a situation like Matthews and bosphorus. The drafters of the Lisbon treaty foresaw this being a problem so they made provisions in art. (1) of protocol No. 8. to the treaty.

Vivane Reding2

On the other hand, has a more positive outlook on the accession he believes that the accession of the EU to the convention will complete the EU system when it comes to the protection of fundamental rights. The entry into the Lisbon treaty makes the EU charter of fundamental rights binding.

The charter goes further than the convention though, what it does is enshrine other rights and principles and incorporates economic and social rights that come from the traditions of member states, international instruments and from the case law from the European court of justice. The author breaks down the benefits of the accession from different points of view

From the perspective of the citizen

This accession would allow citizens that feel that their rights have been violated by an institution of a body of the union can bring an action before the court in Strasbourg court against the union with no difference of the conditions that applies to complaints bought against member states.

In political terms

When this accession takes place the European Union puts weight behind the Strasbourg system of judicial control externally in areas that relates to fundamental rights by integration of its legal order.

In legal terms

This accession is broken down in three parts two will be discussed:

There is a concern with the two different courts and how they would evolve under this accession what it will do is ensure that the court in Strasbourg and the court in Luxembourg will develop in steps. Secondly all the rights of the convention would be at the disposal to contracting parties so they can defend the human rights and conformity of its acts before the Strasbourg court. The union will have one of their judges representing them in the Strasbourg court.

Antoine Buysie is of a similar view of the author above and believes the accession will enable a judge that was elected by the eu will not only be a part of the court but make contributions to it. Individuals would be able to bring complaints about the eu to Strasbourg.

However francios g Jacob view displays concern unlike Vivane’s on this accession as to whether it should take place though he believes that accession creates new arrangements for fundamental rights, he is concerned with the uncertainty that it also brings.

On the one hand accession would have provided acceptance and modification to the eu justifying the Strasbourg court. However a relevant discussion the author believes is the failure at present of the process for incorporating the European union charter leaves the European convention of human rights as the prime source for identifying fundamental rights in Europe.

There has actually been a noticeable trend of the ecj for a long time, the position of the ec law is as follows: In recent years the European court of justice systematically and can be considered routinely citing case law of the Strasbourg court. This fact is notably profound because the echr does not in the manner mentioned above site any other case law except on rear occasions.

In Roquette (2002) supports the view of Francios G Jacob on the issue of when the European court of justice appeared to reconsider Hoechst (1989) in light of the Strasbourg court judgement in Chappell and later Casey. This consideration is not one sided but the Strasbourg court seems to have considered the ruling in the European court of justice case law in Goodwin v uk where they referred to the ecj case p v s and Cornwall county council.

A most recent observation has been in the case of Bosphorus case where the European court of justice viewed the case and made a ruling however the Strasbourg court had to consider if there was a violation of the convention.

Strasbourg court felt that the ecj fully observed the convention rights under ec law and came to the conclusion that there was no need for them to re-examine the issue of violation. The court took the view that once a state takes action and it lines up with a responsibility that emanates from membership of a supranational organisation it is justified as longs as the organisation protects fundamental rights once it can be considered relevant to that of which the convention provides.

After in-depth examination of the method of protecting fundamental rights in European community law – the court finds that the system used to protect rights can be considered as equivalent to that of the Convention system.

When it comes to the progress of the economy competition is viewed as positive and a goal to achieving economic growth, however competition between of fundamental rights instruments within the same legal order it is not clear if it has a positive value. Moreover the constitutional entrenchment of the charter might be seen as liable to cause confusion. Much has been said about this charter of rights in terms of its competence and value. The Charter however may be viewed as misleading or even confusing:

Any rights proclaimed in the charter without qualification would have to be understood in light of “small print” – “explanations” – which reduces the scope.

Economic and social rights are not contained in the European convention of human rights and in some respects not justifiable.

the greatest difficult is to explain to the public, lawyers even judges that this charter only applies to the European union institutions and member states only when implementing European union law.

In conclusion even though accession is the destination for the eu to the echr

Jacobs believes that the arguments in favour for the accession is weak: for example, the eu should accede because it member states are parties, or because it regards accession as a condtion of membership of the eu. when examined closely because it does not deal with the question whether this process would strengthen the protection of fundamental human rights in the eu

Julien Frish believes that the process would be controversial between Eu member states and eu institutions and also between the eu and the council of Europe – he is also of the view that the outcome would be a case of legal dependencies between two different supranational regimes.

It is conclusive to say based on the facts above that the eu should join the European conventions of human rights. It makes the eu accountable to an order which keeps it in check. Also it gives the charter binding force.

Outcome 1

Identify the principle issues for the research on a specific legal topic.

Claim

I consider that i have identified and achieved this outcome because i identified a specific legal topic for research, should the eu join the echr?

I believe that the accession of the eu to the echr is not only a live issues but relevant and worthy to undertake as my research topic. There are 27 member states involved in this undertaking and they must all agree for the accession to take full effect. These two supranational organisations coming together would not be without its challenges.

My research defined the eu and the echr which i belieived was necessary because they were the two parties involved in this union. However i explored the difficulties and benefits of such a move. My research raised many issues some of which can only be answered by time. However when i began analysing my work i realized that cases brought clarification in terms of the actural working of the two court systems. The matthew case which highlighted the challenges of domestic law and international law and clarifies who has the final say.

the bhrophos cas however provided an indept study in the recognition that the echr sees the eu as capable to make a decision and respected this ruling, it provided a clearer picture to shed light on my area of study.

Evidence

In part one and two of my research paper i clearly defined what the eu and echr is so as to clearly identify their individualty and function especially in terms of who they serve.

A number of cases were used to demonstrated the court and whether or not the echr steps in and changes the decision of the eu or if eighter part acknowledges of recognize each other when a ruling is made.

In Mathew

The issue regarded whether of not the united kingdom should have allowed the balgarian to vote in the elections

In the Ireland case

The exploration of wheter or not the decision of the ech was it a violation of the echr. It should that the echr was in support of the ecj decisions.

Bhrophus

Where m felt that there was impartiality in the decion of her case