On the occasion of the publication of the book Parliaments and the European Court of Human Rights by Professors Alice Donald and Philip Leach, Judge Robert Spano of the European Court of Human Rights comments on the general themes presented in the book and its contribution to the ongoing debate on the European Convention on Human Rights and the Principle of Subsidiarity.
A culture of human rights in national parliaments
The effective implementation of human rights requires a culture of human rights at all levels of government as well as in society in general. Therefore, it is a possibly transformative development in European human rights law that the role of national parliaments in the realisation of human rights protection within the Convention system has increasingly become a focus-point in recent years, both at the level of policy within the Council of Europe, but as well, and importantly, at the level of adjudication of actual human rights cases in the Strasbourg Court.
This new book provides an excellent overview of this important development, by highlighting the arguments in favour of a more parliamentary-focussed human rights jurisprudence, while at the same time identifying the potential risks to be addressed in future cases.
As a serving judge of the Strasbourg Court, I would like to make a couple of remarks on the core of the normative argument in this regard, as developed by the authors, on the relationship between human rights, democratic governance and legitimate authority.
The first is a doctrinal point, while the second is more practical.
Understanding Standing: Post 3 of 3 of Article 263(4) TFEU
This is a final post in a series of three on standing in EU law. It will focus on whether the present position under Art 263(4) TFEU satisfies the principle of effective judicial protection.
Part I) Effective judicial remedies.
Effective judicial protection is of a long pedigree. We can trace an embryonic form of this right in the Magna Carta of 1215 which provides, in Article 29, that “no freeman is to be taken or imprisoned or disseised of his (…) liberties (…) save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice” (See also Arts 11 to 13). It also emerged fairly early on in the jurisprudence of the European Union in the mid-1980s, with the CJEU starting to toy with the idea that the effectiveness of EU law could impose certain obligations at the domestic level in order to ensure that effectiveness, Case C-14/83 Von Colson and more famously Case C-410/92 Johnson. The principle can now can be found enshrined in Art 47 of the Charter, as follows:
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. (…)
This Charter has equal status to the other two Treaties constituting the EU, the TEU and TFEU (see TEU, Art 6(1)) Thus, as has been stressed on many an occasion, the very applicability of EU law entails the applicability of the fundamental rights guaranteed by the Charter. In other words, effective judicial protection is a fundamental postulate of EU law – where there is EU law there must be effective judicial protection. Continue reading
I have so many rights I am thinking of flogging some off on eBay. Though I have the right not to do so.
Stop telling me whatever it is you may be telling me. I have a right to tell you not to tell me.
I have the right and you have the right. What we have rights to may be different but let’s pool our rights and make one big right.
My right to have rights is being threatened by people who claim they have the right to other rights. Other people are bastards.
My rights are constantly threatened by people claiming to have rights. They have no right to such rights.
I have the right to stamp my foot. If I am not granted the right to stamp my foot I will stamp my foot. That is my right / my foot.
Everyone has the right to have rights. They are right to have rights. It is right to have rights. It is right to be everyone.
*Article in Guardian to this effect. ‘Stop telling X what to do’ is a favourite Guardian meme to be fully explored another time.
Poem posted with permission of the author. George Szirtes is a British poet and translator from the Hungarian language into English
Work recently began on a wall in Calais, funded by the UK government, to prevent migrants and asylum seekers from crossing the Channel to Britain. Nearly simultaneously, the government announced that it would increase immigration tribunal fees by over 500%, erecting a different type of barrier—to access to justice. It was claimed that doing so would bring in an estimated £34 million in income annually and preserve the functioning of the tribunals.
The decision to increase fees was made despite the fact that responses to a public consultation conducted by the government overwhelmingly disagreed with the proposals. The suggestion to increase fees in the First-tier Tribunal (the first port of call when a person wants to challenge an immigration or asylum decision by the state) was opposed by 142 of 147 respondents. Introducing fees in the Upper Tribunal (where appeals against decisions in the First-tier Tribunal are heard) was opposed by 106 of 116 respondents, and the introduction of fees for applications for permission to appeal in both Tribunals was opposed by 111 of 119 respondents. In partial concession to critics of the proposal, the government has said it will introduce fee waiver and exemption schemes in certain cases. However, these plans are as yet unspecified and are likely to increase the bureaucratic burden on migrants. Continue reading
Zain Taj Dean v The Lord Advocate and the Scottish Ministers  HCJAC 83 – read judgment
The High Court of Justiciary Appeal Court ruled last week that the extradition of Zain Dean to Taiwan would be incompatible with article 3 of the Convention as a result of the conditions in Taipei prison.
The appellant, a 44-year-old marketing consultant, had been living and working in Taiwan when he was involved in a road traffic accident in which a local delivery driver was killed. He was sentenced to four years in prison by the Taiwanese authorities. He absconded to Scotland and became the subject of Taiwan’s first ever extradition case.
The appeal was lodged under sections 103 and 108 of the Extradition Act 2003. Section 87 of this Act requires the judge to decide whether the person’s extradition would be compatible with Convention rights. The appellant argued that evidence was now available which had not been available at the initial extradition hearing. Under s.104 of the Act, the court may allow the appeal if evidence is available and this evidence would have resulted in the judge at the extradition hearing deciding a question before him differently, resulting in the person’s discharge.
It was therefore for the court to determine whether new evidence suggested that the conditions in which the appellant would be held in Taipei prison were not article 3 compliant. Continue reading
Understanding Standing: Post 2 of 3 Art 263(4) TFEU
Has Art 263(4) of the Lisbon Treaty achieved Advocate General Jacobs’ ideal of “the law itself [being] clear, coherent and readily understandable.” (See UPA Opinion at )?
No. As shall be seen in this post, to continue the maritme metaphor in this series, standing is still a rough and unpredictable sea to navigate. Many a case have been scuppered on the reefs of inadmissibility. Quite why this is the case requires us to pick apart the three notions of “implementing measures”, “direct concern” and “regulatory act”.
To some extent, this post will be rather technical. It is aimed for those who are interested in an overview of the operational problems and internal inconsistencies that lie in the third head. Given the limits of space, it is not possible to discuss at great length all of the finer nuances. Those who are interested may find my article in the European Journal of Legal Studies here which puts the flesh on the bones of this necessarily skeletal overview. Continue reading
Understanding Standing: Post 1 of 3
Recently, we posted on a proposed action against the European Commission, or, more precisely, the action of its president. The applicants’ greatest challenge in those proceedings will be to persuade the European Court of Justice in Luxembourg that they should be allowed to take their case at all; in other words, whether they have “standing” under the rules of the European Treaties. We are grateful therefore for an in depth analysis of the subject by regular UKHRB contributor Michael Rhimes.
Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.
Standing is a hot topic in EU law, and it is certainly of considerable academic interest. The legal commentary in this area over the last 50 years would occupy a small mansion. I confess I am guilty of adding to this proliferation – my own 70 page contribution in the European Journal of Legal Studies may be found here. Yet it is also an area of great practical interest. This is because it is essential to have standing to directly challenge an EU act in the EU Courts. No standing means no admissibility, which means no case to be heard by the Courts.
The overall question to these three Posts is whether the EU provides effective judicial protection in relation to the challenging of EU norms. Each of the three Posts has a deliberately different scope and purpose.
- The first is introductory. It summarises what standing is, introduces the main features of direct/indirect enforcement and explains how they are relevant to EU standing. It then offers an overview of the application of the heads of standing in Art 263(4) TFEU.
- The second is technical. It examines the case-law under Art 263(4) TFEU offers a more detailed insight into the problems with the application of the three elements in the third head of standing.
- The third is polemic. It seeks to explore how the application of effective judicial protection results in gaps in the ability to challenge EU law.