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Public Seminar on judges and legislators for a multi-level protection of fundamental rights in Europe, 8-10-2007 (LIBE)

pdf mise en ligne :05 11 2007 ( NEA say… n° 42 )

IMMIGRATION > Immigration illégale

The objective of this seminar is to supply a general picture on the problems that judges and legislators face on european and national levels in matter of fundamental rights (FR) (EN).This meeting comes within the context of preparing the report of Mr. Catania on the situation of human rights in the EU for the period 2004-2007.

The question which the seminar is called upon to answer is: "How to improve the role of the EU legislature and judiciary role in the multi-level protection of fundamental rights?".

From an EU citizens perspective, there will soon be to ways of seeking recurs to European level judges. On the one hand, the European Court of Human Rights will still be very significant in championing and providing a direct protection of citizens’ fundamental rights. On the other hand, Article 9F of the Reform Treaty will open the possibility for European Citizens to enforce their rights also in the European Court of Justice (ECJ) in Luxembourg. Citizens will therefore have two courts where they would be entitled to lodge their own complaints directly. The EU and ECHR systems of human rights protection sometimes complement each other, sometimes compete or duplicate each other. The speakers are asked to analyse this situation, having regard to the changes taking place.

By way of introduction, Mr. President Cavada present this meeting as a real working seminar, which is trying to meet a particular challenge: that of a coherent European system of protection of fundamental rights. To meet this challenge, the president stressed the role of legislators and judges, national and European.

The seminary has been carried out in three panels

1) The first panel would to define the principles of the European protection of the fundamental rights. Recently the phenomenon of the cross-referencing in the Costitutional Courts judgement has increased in the world and in Europe. This could be considered as a sign of a growing aspiration of the Constitutional Courts to share a Common culture of the fundamental rights protection.

With the new Treaty, the European Union might soon become a member of the European Convention of Human Rights. Interaction between EU legislation, the Charter and the Convention are already talking place, but these should become even more intensive with the new developments.

Mrs Françoise TULKENS (FR), Section President at European Court of Human Rights, claims that the quality of the relationships between ECHR and communitarian right is improving, the EU is taken care more and more of human rights, but two systems have to avoid to contradict itself.
Today the conventional legality makes part of the legality of the UE. European Union Member States are not only parties of this international organization with all the consequent obligations, but also parties to the Convention for the Protection of Human Rights and Fundamental Freedoms and they have recognized the jurisdiction of the ECHR.
Therefore it is necessary to make one new paper of the rights that coexists with the Convention of the human rights and it does not create doubles quantity standard. 

Mr Egils LEVITS, Judge at the Court of Justice of the European Communities, remembers  that the EU isn’t a State, so the system of ECHR have to be modified for being used. He says that initially the European Court of Justice was also silent on the fundamental rights protection issue, stating that the High Court is only required to apply Community law and its decisions have to be adopted in accordance with Community law, without regard for their validity under national law.
However, after subsequently confronting unexpectedly active resistance from constitutional courts of the Member States to the European Court of Justice aiming to entrench the supremacy of Community law over the national constitutions when there was no protection of Human rights within Communities, the ECJ reconsidered its position.
Therefore the jurisprudence of European Court of  Justice is also gradually gaining in importance.

Mr Kestutis LAPINSKAS (EN), Judge at the Constitutional Court of the Republic of Lithuania, Representative of the Court chairing the Conference of the European Constitutional Courts, emphasizes that the national courts are the main courts who guarantee the supervision and the respect of the communitarian rights.

The questions asked include the Charter of Fundamental Rights and its non-binding nature, the efficiency and complexity of the overall system of protection, and on the problem of protection of personal data.

Ms. Tulkens -
Despite the non-binding nature of the Charter, Mrs. Tulkens welcomes it has already proved himself a fact, it is now cited by the Court itself.
But the possibility of "opt out" represents a real danger, particularly having regard to the principle of universality of human rights.
Regarding the fight against terrorism, this is according to Mrs Tulkens a dilemma between the desire to protect the lives of citizens of a state, and the right to respect for his private life.
Mrs. Tulkens, it is a dilemma between protecting the rights, and respect those rights.

Mr. Levits - 
The strength of the Charter will depend on its place in the future Treaty, and especially the wording to be used.
If the Charter is annexed to the Treaty, then it will have the same force as the Treaty itself.

2) The Second Panel has been taken care of the challenges faced by national judges and legislators in applying EU rules in the following specific domains:

- Family reunification - Professor Valerio ONIDA (EN) (FR), former President of the Constitutional Court of Italy, argues that the right to the respect of the familiar life, which the right is connected to cohabit with the other members of the own family, in particular with the spouse or the stable partner and with the sons, is one of the rights that regard the person in how much such one, and therefore must be guaranteed also to the not citizens. It must, to its judgment, be clearly dissented from the expressed opinion, in the event decided with the sentence of the 27 June 2007 of the Law court, from General Lawyer Kokott, second which the foreign not communitarian relative of a communitarian citizen enjoys, of a stay right, that it can come limited in cases only exceptional and to rigorous conditions much, while the not communitarian foreign, legal resident in one be of the Union, does not have some right to the stay, because the right of the man to the protection of the family would be in this case “typically of inferior capacity” regarding the fundamental rights of the citizens (nn.62, 63). It is true only that, in concrete, the state can establish of the limitations to the exercise of some rights, and so also of the right to the protection of the family- but never such limitations to damage of the essential nucleus- for the admitted ends of general interest from the art.8, par. 2 of the CEDU, between which the requirement of regulating immigration can probably be numbered also.

- Fight against terrorism - Professor Henri LABAYLE (FR), University of Pau and of countries of Ardour, speaks mostly about decision 2002/584 of 13 June 2002 relating to the European warrant for arrest and the procedures of handing-over between States, which the response most characteristic of the Union constitutes to international terrorism, same if its field of application exceeds the cases of terrorism and if one must with honesty point out it that it was in project before the 11 September. The object of Decision-tallies consists in fixing the rules relating to the categories of enumerated infringements for which there is no control of the double incrimination (article 2 §2), with the reasons for non-fulfilment obligatory or optional of the European warrant for arrest (articles 3 and 4), with the contents and the form of this last (article 8), with the transmission of such a mandate and the methods of this one (articles 9 and 10), with the minimal guarantees which must be granted to the required or stopped person (articles 11 to 14), with the deadlines and the methods of the decision of execution of the aforesaid mandate (article 17) and with times for the handing-over of the required person (article 23).

- Protection of personal data - Joaquin BAYO-DELGADO (EN), EDPS MEP. The first point of this intervention is a reminder of the standards of protection in this regard: the protection of personal data is a fundamental right (article 8 ECHR, COE Convention 108...).
Judges are faced with a complex challenge in this area, especially with the adoption of the proposed Framework Decision.
The implementation of this decision will be a complex challenge for lawmakers.
Mr. Delgado insists that judges and lawmakers must be aware of the importance of the protection of personal data as a fundamental right.

The questions posed here are essentially the link between human rights and combating terrorism, and the possibility of waiving his rights deliberately.

Mr. Labayle -
Mr. Labayle uses the concept of "national margin of appreciation" for how far a state can go in terms of restricting the rights in the context of the fight against terrorism.
This is the work of a judge to place the cursor, as it may act in each case.
Regarding the possibility of waiving some of their fundamental rights, it is observed that certain rights are irreducible.

Mr. Onida -
As Mr. Labayle, Mr. Onida considers that the fight against terrorism and links with the human rights, it is not a matter of two fundamental rights that they clash each other, but to make the balance between individual rights and public interest.
The importance was stressed of the judge, as a neutral responsible for enforcing the rights.
Again, the absence of judicial recourse is missed.
Mr. Delgado -
Responding to other experts, Mr. Delgado refutes the idea of judicial deficit of the Union: national judges are indeed community also judges, so at the national level there will always be a possible control.
Members react, considering that this is not enough, because it does act against the rule itself, but only against the transposition.
On the issue of giving up their rights, the issue here is that of consent in relation to personal data, consent must be free, so it is not enough if consent was given under any duress, what will be the most often the case.
Members respond on the question of the existence of a judge; Such flights of the CIA, which is responsible, and before which court to go ?

Mr. Levits -
In the fight against terrorism, we do not have rights that are in February weighed on one side but the obligations of the state and on the other side human rights.
It is therefore not possible to justify a measure by reference to human rights.

3) The Third Panel raised awareness among national judges on fundamental rights. The European Commission has recently adopted a new multi-annual programme 2007-2013 aimed at of awareness rising of fundamental rights protection within the general society but also among the European judges. It needs to improve knowledge and awareness among judges of national courts about existing systems of fundamental rights protection.

Mr. Yves KREINS, Secretary-General of the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union, and Speaker of the House and the State Council of Belgium. After the presentation of the association, he claims that the issue of improving the knowledge and awareness of the judges in this matter is the basis for the formation of the association. The administrative courts are in the front line, as guarantors of individual rights. The meaning of this intervention is to present the methods used by the association to improve the knowledge of Community law and fundamental rights. These are as follows: Regular Symposia between states, studies on the legal structure of each state and on the theme of human rights, the dissemination of national case law to encourage  harmonization.

Mr Virgilijus VALANČIUS (EN), President of the European Association of the magistrates and the Supreme administrative Court of Lituania, said that this is the aim of European Association of Judges, said, with the creation of a common European legal space by using the potential of national judiciaries. It would support the rule of law as well as judicial independence and impartially on a European level and in all member States, as a privilege not of authorities of the judiciary but of the citizens coming to the Courts in search of their rights.
The changes will become a new challenge for national judges, first of all because of the necessity to apply national laws in the light of new legislation on the European level. When applying the national law, judges are expected to observe the general principles of Community law, use not only the methods of interpretation of national legal system, but interpret and apply rules in conformity with EU legislation. The national Courts, being at the same time the European Courts, must ensure the protection of rights, granted to their nationals by the EU law. Therefore, there must be financial assistance to the EU Member States to help with further education of national judiciaries on the issue of law and the abilities of fundamental rights protection.
However, the relations between the judiciary and the other branches of state are not always sufficiently cooperative. It happens so that representatives of other state powers ignore the court decisions or get involved into the unfounded critics of the judicial system and members of the judiciary as a whole.

Mr Miguel CARMONA RUANO (EN), President of the European Magistrates for  the democracy and the freedoms (MEDEL) and President of the Audiencia Provincial of Seville (Spain), has emphasized the engagement of the organization on the role of judges in protecting and promoting the Human Rights. MEDEL share and support these declarations on developing the principles of freedom and justice with at least the same intensity than security and on not just respecting but promoting actively the fundamental rights. When in the final years of the past century, after the European Councils in Cologne and Tampere, the Body established to elaborate a Draft Charter of Fundamental Rights in the EU began its work, MEDEL studied the texts and published an opinion in which we stressed several points that, as if prophetical has marked the posterior evolution.

It is stressed here on the necessary independence of the judiciary, and thus their liability.
Mr. Bronzini briefly introduced a website recently created: to offset the lack of a proper forum in Europe, creating links and open public debate on the issue.


Maria Letizia IANNACCONE
Università degli Studi di Napoli "L’Orientale"

► Briefing Paper by Prof. Chalmers, "The interaction between judges and legislators in the domain of the protection of human dignity, the rigt of asylum, data protection and of procedural rights in criminal matters" (FR) (EN).
► Briefing paper Prof. de Schutter "The relations between the European Convention of Human Rights, the European Charter and the EU member states constitutions" (FR) (EN).
► Background document by Prof. de Schutter, "Accession of the European Union to the European Convention of Human Rights" (EN).
► Background document by Prof. Jacobs, "Accession of the European Union to the European Convention on Human Rights" (FR) (EN).
► Background document by M. Van Dijk, "Accession of the European Union/European Community to the European Convention on Human Rights" (FR) (EN).
► Background document by Prof. Rohmer, "Adhésion de l’Union européenne à la Convention européenne des Droits de l’Homme" (FR).
► Briefing paper by M. Geyer, "A synthesis of the former EP Resolutions in the field of Fundamental Rights" (FR) (EN).