Dr. jur. Farida Valiullina, Lawyer, Germany

Distinguished Experts, Colleagues and Guests,

I'm very pleased and honoured to be here with you today to discuss the challenges of human rights protection in Europe and share best practices. I would like to thank the Universal Peace Federation for organizing this important event on the occasion of celebration of the 70th anniversary of the Universal Declaration of Human Rights (UDHR) and the Women's Federation for World Peace for inviting me to participate in it.

The UDHR adopted by the community of nations in 1948 was a source of inspiration at global, regional, national levels. It was addressed to all humanity and was morally binding on everyone to observe faithfully and strictly its provisions. Today we are witnessing, however, serious gaps in the enforcement of the UDHR aimed at protecting new generations from suffering and destruction of WWII. Taking into consideration ongoing multiple conflicts, humanitarian emergencies and severe violations of international law, it is crucial that policy responses are firmly grounded in human rights, and that states comply with the binding obligations they have contracted when ratifying international human rights treaties. A weakness of the Universal Declaration is that its text is not binding, it is a mere declaration, and there are no monitoring mechanisms.

This is the reason why the lessons learned from WWII have provided a basis for the near - simultaneous formation of a number of organisations in Europe. First was the Council of Europe (CoE) in 1949, intended to promote the cooperation between countries in the area of human rights. Then came the European Coal and Steel Community (ECSC) in 1951, which was intended to create a strong and stable economic unity of member states. In order to give effect to those values enshrined in the CoE’s first treaty, the European Convention on Human Rights of 1950 (ECHR), and in the Treaty of Paris establishing the ECSC of 1951, unique institutional mechanisms were established. Europeans saw the birth of the Court of Justice of the ECSC in 1952, and of the European Court of Human Rights (ECtHR) in 1959. To contribute to strengthening human rights protection and economic integration, member states, by ratifying these treaties, agreed to transfer a part of their sovereignty to these organisations and to be subject to compulsory jurisdiction of these European courts.

As a “first step for the collective enforcement of certain of the rights stated in the Universal Declaration”, the ECHR constitutes a common view of European human rights law, defining “the margin within which states may opt for different fundamental balances between government and individuals”. The long-term success of the Convention mechanism depends on the Strasbourg Court's recognised authority to determine minimum standards that are to be observed by member states.

The interpretive tools developed by judges in Strasbourg such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies are still alive. The more far-reaching remedies the ECtHR requires, the greater the likelihood of delay or resistance in implementing its judgments — in terms of political will, capacity, and commitment of resources which might signal government’s displeasure with specific rulings. Given that the ECtHR rendered more judgments that touch upon politically sensitive matters, it has increasingly encountered opposition from some states. There is a need for caution when interpreting the Convention in an expansive way and making proposals for measures to be adopted.

A major challenge for the ECtHR is to fit the ECHR into the broader domestic legal framework while respecting the plurality of fundamental rights provisions. In those cases where the national courts and tribunals are best suited to deal with particular issues, the Strasbourg Court is encouraged to show self-restraint. Protocol no 15 introduces the subsidiarity principle and the margin of appreciation doctrine in the Convention’s preamble that goes hand in hand with the European supervision. The ECtHR must not become a court of fourth instance substituting its evaluation of competing rights to that of national courts. In those cases where implementation of judgments of the ECtHR could run counter to fundamental principles of the national legal orders, member states reserve a power to block the execution of these judgments which may bring into question further participation of states in the Convention mechanism.

Thus, it seems prudent to inspire the ECHR member states to properly translate their obligations under international treaty into domestic legal orders, and to coordinate their actions in accordance with the requirements of the ECHR. In bringing national legislation and practices in line with the Strasbourg case law, national authorities will not only demonstrate greater receptivity to the Convention, but also increase their trustworthiness. The ECtHR would then be expected to avoid any intrusion into states’ sovereignty, attach considerable attention to national identities of the contracting parties to the Convention, and leave them sufficient discretion in balancing conflicting rights. Only if judicial institutions operate within the limits of the authority vested in them, will the constructive collaboration be achieved and further clashes between them are excluded.

In recent decades, the European Union (EU) has played a significant role in protection of human rights, with its Charter and the EU’s highest court. As soon as the commitment of the Court of Justice (CJEU) to resolve human rights disputes became obvious, this judicial institution was, however, heavily criticised on the basis that it could not deliver judgments going beyond the competences envisaged by the Treaties.

The CJEU's substantive body of fundamental rights case-law has in the past drawn extensively on the Convention and the case-law of the Strasbourg Court. At the same time, the CJEU has systematically emphasized the autonomy and primacy of the EU’s legal system of human rights protection. In particular since the Charter became binding under EU law, the CJEU case law tends to rely exclusively on the Charter as it prescribes itself that those Charter rights that correspond to rights guaranteed by the ECHR are to be given the same meaning and scope as those laid down by the ECHR (article 52 (3) of the Charter). The CJEU accentuates that the ECHR “does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law”. By adopting such an approach the CJEU risks provoking a critical reaction of the highest European and national courts and tribunals.

The examples of converging national case law highlighting the importance of respect for constitutional identities in the protection of fundamental rights over conflicting EU law can be found in the decisions of constitutional courts and tribunals of Germany, Italy, Poland and Spain. This reaffirms the role of constitutional courts as guardians of the national constitution in defining the limits of European integration. It seems that the CJEU is increasingly aware of these cases. By showing respect for the plurality of constitutional systems in Europe it is becoming more attentive to solutions adopted at the national level revising when required its own position.

A beneficial effect on the development of coherent approaches to the interpretation of fundamental rights by the CJEU and the ECtHR could be achieved by a continuous application of the Charter by public authorities taken in combination with accession of the EU to the ECHR, which has been prepared on both sides (Art 6(2) TEU and Protocol No 8 of the Lisbon Treaty and Article 59(2) and Protocol No 14).

In the Opinion 2/13 the CJEU discovered a number of normative conflicts in the Accession agreement and held that in its present version it is not compatible with EU law and might affect the powers of EU institutions. It was particularly emphasised that the distinctive nature of the EU legal system and competences of the CJEU could be secured, if the mechanism of prior involvement of the EU judicial mechanisms in the resolution of cases in which EU law matters are at issue is set up. This seems now even more feasible in view of the broad list of fundamental rights existing in the EU.

The fact remains, however, that the mere existence of two fundamental rights catalogues to be interpreted by two distinct courts operating in divergent contexts risks weakening the overall protection offered. This diversified regime of human rights protection when produces contradicting results not only negatively impacts progressive development of common standards of fundamental rights within the EU and the CoE, but may cause the loss of confidence in the effective functioning of the judicial institutions in Europe and risk undermining their credibility.

In order to increase their legitimacy it is vital to develop possibilities of mutual learning by adhering to best practices at all levels. The proliferation of separate and self - contained constitutional systems seeking to establish their own authority may destroy the communication. This is why, it is of an utmost importance to find the balanced relationship between preservation of core constitutional values and benefits of contributing to European integration and international cooperation. This apparently would require verifying whether, on the one hand, the warnings of the courts of the ECHR member states are duly taken into consideration by the CJEU and the ECtHR, and whether, on the other hand, the judgments of the European courts are faithfully complied with and given the corresponding value in the national legal systems.

The European system for the protection of human rights will remain credible if it is based on mutual respect and trust for the benefit of an individual. It is our responsibility to defend and develop it, and count on multilateral cooperation of countries worldwide. Otherwise, we should exert pressure on states concerned to reassess their approaches and meet their obligations to respect, protect and fulfil human rights. Only if an open and transparent dialogue is maintained and mutually agreed solutions are adopted, potential jurisdictional conflicts between the courts will be avoided and more efficient system of protection of human rights will be ensured. I thank you.

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