The European Union Charter of Fundamental Rights vs. The Council of Europe Convention On Human Rights And Fundamental Freedoms – A Comparison

Fordham International Law Journal, Aug 2017

By Frank Emmert and Chandler Piché Carney, Published on 01/01/17

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The European Union Charter of Fundamental Rights vs. The Council of Europe Convention On Human Rights And Fundamental Freedoms – A Comparison

FORDHAM INTERNATIONAL LAW JOURNAL Fordham International Law Journal Frank Emmert Chandler Piche? Carneyy - 2017 Article 1 y Copyright c 2017 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj THE EUROPEAN UNION CHARTER OF FUNDAMENTAL RIGHTS VS. THE COUNCIL OF EUROPE CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS – A COMPARISON Frank Emmert* & Chandler Piché Carney** I. INTRODUCTION ...............................................................1051 II. HISTORY AND EVOLUTION OF THE EUROPEAN CONVENTION SYSTEM ...........................................1054 B. Widening of the Convention via Geographic Expansion...............................................................1057 C. Evolution of the Convention via Protocols..............1061 1. Article 1 Obligation to Respect Human Rights ...............................................................1069 Al-Skeini and Others v. United Kingdom (2011).........................................................1069 * Prof. Dr. Frank Emmert, LL.M., MCIArb, is the John S. Grimes Professor of Law and Director of the Center for International and Comparative Law at the Indiana University Robert H. McKinney School of Law in Indianapolis. For more information on Prof. Emmert see FRANK EMMERT, INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW, http://mckinneylaw.iu.edu/faculty-staff/profile.cfm?Id=166 (last visited Apr. 16, 2017). Most of his publications can be downloaded free of charge at https://www.researchgate.net/profile/Frank_Emmert2. ** Chandler Carney is a Juris Doctor recipient and Freeborn Civil and Human Rights Fellow from the Indiana University Robert H. McKinney School of Law in Indianapolis; and former EMERGE Scholar at the University of West Florida in Pensacola. The authors would like to thank the editors at the Fordham International Law Journal for their support and patience during our work on this article. The usual disclaimers apply. 1048 FORDHAM INTERNATIONAL LAW JOURNAL 1050 FORDHAM INTERNATIONAL LAW JOURNAL Recommendation Rec(2002)13 on the publication and dissemination in the Member States of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights..............................1144 Resolution Res(2002)58 on the publication and dissemination of the case-law of the European Court of Human Rights..............................1146 Resolution Res(2002)59 concerning the practice in respect of friendly settlements ...................1146 Resolution res(2004)3 on judgments revealing an underlying systemic problem.....................1146 Recommendation Rec(2004)4 on the European Convention on Human Rights in university education and professional training ...........1147 Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights ............................................1148 Recommendation Rec(2004)6 on the improvement of domestic remedies .................................1148 Recommendation CM/Rec(2008)2 of the Committee of Ministers to member states on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights.........................................................1149 Recommendation CM/Rec(2010)3 of the Committee of Ministers to member states on effective remedies for excessive length of proceedings ................................................1150 Resolution CM/Res(2010)25 on member states’ duty to respect and protect the right of individual application to the European Court of Human Rights ............................................1152 2. Some Additional Proposals for Consideration ...1157 B. Strengthening the EU System ..................................1162 1. Accession to the European Convention on Human Rights and Fundamental Freedoms?................1162 2. Application of the Charter to All Acts of the Member States?................................................1170 VI. CONCLUSION.................................................................1173 I. INTRODUCTION While some regions of the world still do not have supranational structures for the protection of human rights and fundamental freedoms, Europe has two systems that are competing on some levels and complementary on others.1 The European Court of Human Rights in Strasbourg is the guardian of the European Convention on Human Rights and Fundamental Freedoms and accepts complaints by individuals alleging a breach of one or more Convention articles by acts or omissions of the authorities of one of the forty-seven Contracting Parties of the Council of Europe, provided certain conditions of admissibility are met.2 The Court of Justice of the European Union, based in Luxembourg, is the guardian of the EU Charter of Fundamental Rights and decides in specific cases whether acts or omissions of the EU institutions and/or certain acts or omissions of the authorities of one of the twenty-eight Member States of the European Union are in conformity with the guarantees provided in the Charter. While there are differences in geographic coverage and in the substantive scope of 1. According to Karen Alter, when the Cold War ended, there were only six permanent international courts while today there are more than two dozen that have collectively issued almost forty thousand binding legal rulings. See KAREN J. ALTER, THE NEW TERRAIN OF INTERNATIONAL LAW: COURTS, POLITICS, RIGHTS (2014). Thus, Europe is not the only place where some level of forum shopping may be possible. See also Karen J. Alter, The Multiplication of International Courts and Tribunals after the End of the Cold War, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 63 (Cesare P.R. Romano, Karen J. Alter, & Yuval Shany eds., 2014); Cesare P.R. Romano, The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, 31 INT’L LAW & POLITICS 709-51 (1999). 2. See Eur. COURT OF HUMAN RIGHTS, COUNCIL OF EUR., BRINGING A CASE TO THE EUROPEAN COURT OF HUMAN RIGHTS, A PRACTICAL GUIDE ON ADMISSIBILITY CRITERIA (3d. ed., 2014). protection, some cases can and have been brought before both supranational courts.3 Supranational structures are important, in particular, if and when the protection at the national level is inadequate. Problems at the national level can and will occur from time to time even in mature democracies with functioning systems of rule of law. This is evidenced by some of the cases that come to the European Court of Human Rights 3. An example are the well-known cases revolving around the controversy between prochoice and pro-life proponents in Ireland. In 1983, after a popular referendum, Ireland added a clause to the constitution stipulating that the “[t]he state acknowledges the right to life of the unborn and, with due regard to the right to life of the mother, guarantees in its laws to respect and as far as practicable, by its laws to defend and vindicate that right.” Constitution of Ireland 1937 8th amend. (amended 1983). This has generally been interpreted as a far reaching prohibition of abortion. It forces women seeking an abortion to travel abroad, generally to Northern Ireland, where medically induced abortions are relatively freely available. Several organizations were providing information about these services inside the Irish Republic. The Society for the Protection of Unborn Children (“SPUC”) brought lawsuits against these organizations to prevent them from disseminating information about abortion services in the United Kingdom. One case eventually made it to the European Court of Human Rights (“ECtHR”). In Case of Open Door and Dublin Well Woman v Ireland, the ECtHR, in a plenary decision, held that restrictions on counseling services to pregnant women were incompatible with the Freedom of Expression protected by Article 10 of the ECHR. See generally Case of Open Door and Dublin Well Woman v. Ireland, Application No. 14234/88, Judgment, (Oct. 29, 1992), available at http://hudoc.echr.coe.int/eng#{"itemid":["001-57789"]}. A parallel case went before the European Court of Justice (“ECJ”) in Luxembourg. In its judgment of October 4, 1991, the ECJ held that while medical termination of pregnancy is a service (and thus, EU law should protect the right to receive this service in another Member State), the court further held that “. . . it is not contrary to Community law for a Member State in which medical termination of pregnancy is forbidden to prohibit student associations from distributing information about the identity and location of clinics in another Member State where voluntary termination of pregnancy is lawfully carried out . . .” The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others, Case C-159/90, [1991] E.C.R. I-4686, Judgment ¶ 32. The explanation for the latter decision is that the ECJ took a narrow view analyzing exclusively the free movement of services dimension and not (also) the human rights dimension of the case. EU law only protects the freedom to provide or receive cross-border services. Thus, if Irish organizations provide informational services to Irish women, the matter is one of purely internal dimensions, as long as the organizations are not working for the foreign medical service providers. It is difficult to say whether the ECJ would uphold this decision today, after the entry into force of the European Charter. However, it is worth noting in this context, that the ECtHR more recently held that the ECHR does not as such provide a right to an abortion, in spite of the fact that “there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law.” Case of A, B and C v. Ireland, Application No. 25579/05, Judgment of the Grand Chamber (Dec. 6, 2010) ¶ 235. 2017] in Strasbourg from countries like the United Kingdom, France, Germany, Sweden, etc. It is also evidenced by the occasional failure of a highly developed legal system in a mature democracy like the United States, where every now and then we sorely miss a functioning supranational system that would catch and correct most, if not all cases, where the national system has failed to provide adequate solutions.4 Obviously, the more problems a country has with rule of law and effective legal remedies at the national level, the more important the supranational systems become, provided the supranational decisions are respected and executed in these countries. In the European context, one indicator of this connection is the number of cases that are brought to Strasbourg from Russia, Ukraine, Turkey, and a handful of other countries that struggle to provide a high level of protection of human rights and fundamental freedoms for their people or at least for certain groups under their jurisdiction. Indeed, of the forty-seven Contracting Parties of the Council of Europe, just five or six are producing between two thirds and three quarters of all complaints brought to the attention of the European Court of Human Rights (ECtHR) every year.5 Since the parallel existence of two supranational catalogs of human rights and two supranational courts for their interpretation and enforcement is quite unique, this article will compare some of the strengths and weaknesses of each of the two systems and attempt some proposals for the future development of both of them. For the benefit of less specialized readers, however, we shall first recall the history and evolution and some of the most important features of each of the two systems. “A conscience must exist somewhere which will sound the alarm to the minds of a nation menaced by this progressive corruption, to warn them of the peril and to show them that they are progressing down a long road which leads far, sometimes even to Buchenwald or to Dachau.” – Pierre-Henri Teitgen 6 A. Background The Council of Europe (“the Council”) is an intergovernmental organization established after World War II by ten European States in order to promote human rights, European unity, and social and economic progress.7 Membership in the Council of Europe has since risen to forty-seven countries and today encompasses the entire continent with the sole exceptions of Belarus and Kosovo. On November 4, 1950, the members of the Council signed the European Convention on Human Rights and Fundamental Freedoms (“the ECHR”, or “the Convention”) to further their mission. The Convention came into force three years later and has since developed into the present-day European Bill of Rights.8 The Convention’s primary intent is to protect civil and political rights, which limits it ratione materiae, as opposed to 6. Pierre-Henri Teitgen, Address to the Consultative Assembly of the Council of Europe (Sept. 1949) (attempting to sway the Assembly in favor of constructing a supranational system of human rights protections). Teitgen was an influential member of the French resistance during World War II and subsequently served in the French Parliament as Minister of Information, Minister of Justice, Minister of Defense, and Deputy Prime Minister. During his time as Minister of Justice, he oversaw the trials of French politicians who had collaborated with the Nazi Regime. He was not only one of the “Founding Fathers” of the European Convention system but also played an instrumental role in the creation of the European Community, the predecessor to the European Union. 7. Some say that the person most responsible for the creation of the Council of Europe was Joseph Stalin. The post-war fear that spread across Western Europe is arguably what led to the creation of the Convention, as leaders sought to prevent the rise of yet another totalitarian regime. Maybe one day we will similarly look back at Donald Trump as the trigger that finally induced the United States to ratify the Inter-American Convention on Human Rights? 8. The Convention was signed in Rome, Italy, on November 4, 1950. See Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, E.T.S. No. 005 (entered into force Sept. 3, 1953) [hereinafter ECHR]. 2017] protecting economic, social, or cultural rights.9 Its acceptance and almost instant success was a feat primarily achieved by the Convention’s founding fathers: Sir David Maxwell-Fyfe10 and PierreHenri Teitgen. The European Convention initially established a two-part enforcement system consisting of the (part-time) European Commission of Human Rights and the (part-time) European Court of Human Rights (‘the Court’, ‘the Strasbourg Court’, or the ECtHR).11 Prior to Protocol 9, individuals were not entitled to bring their cases directly before the Court.12 Instead, the individual only had a right to file an application with the Commission. The Commission then acted as a filter by deciding the admissibility of complaints and determining which cases were worthy of reference to the Court.13 9. See PHILIP LEACH, TAKING A CASE TO THE EUROPEAN COURT OF HUMAN RIGHTS 5 (2d ed. 2001); JEAN-PAUL COSTA, EUR. COURT OF HUMAN RIGHTS, COUNCIL OF EUR., TEN YEARS OF THE “NEW” EUROPEAN COURT OF HUMAN RIGHTS 11 (2009), http://www.echr.coe.int/Documents/10years_NC_1998_2008_ENG.pdf. 10. Sir David was a British MP and had served as a prosecutor at the Nuremberg trials. This had persuaded him of the importance of international oversight of national protection of human rights and fundamental freedoms. 11. The European Commission of Human Rights was established in 1954. Five years later, the European Court of Human Rights was created in 1959. See EUR. CT. HUM. RTS, THE COURT IN BRIEF, available at: http://www.echr.coe.int/Documents/Court_in_brief_ENG.pdf (last visited Apr. 16, 2017). Pierre-Henri Teitgen wanted a special court to “raise the alarm” for Europe upon the threat of totalitarianism. 12. Originally, the question whether an individual should have the right to directly petition the Court was only touched upon by a few members of the drafting “Committee on Legal and Administrative Questions” of the Council of Europe. The idea of such an entitlement continued to develop and was met with resistance. The committee worried of “abuses and dangers,” as evident in the statement that only Member States should have the right “to bring another Member State before an international tribunal for the violation of any one of the recognised fundamental freedoms. This solution would . . . obviate the abuses and dangers which might arise from proceedings instituted by private individuals.” Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly (May 11 – Sept. 8, 1949) – The Hague: Martinus Nijhoff, 1975 [hereinafter Travaux Préparatoires, Vol. I]. Ultimately, the Committee agreed “[t[hat any person after exhaustion of national remedies should be allowed to present his claim before a Committee which will examine the complaint, hearing any legal representative.” See id. at 162. Protocol 9 is discussed in note 39 and accompanying text. 13. The Commission was eliminated in 1998, after the entry into force of Protocol 11. See Rudolf Bernhardt, Reform of the Control Machinery under the European Convention on Human Rights: Protocol No. 11 1 AM. J. INT’L L. 145 (1995). Early on, the Strasbourg system seemed weak and incapable of prolonged success, predominantly due to its optional clauses and world powers such as France, Italy, and the United Kingdom refraining from accepting compulsory jurisdiction of the Court or the individual’s right to petition.14 Furthermore, the Court and Commission treaded carefully so as not to infringe upon, in actuality or in spirit, the sovereignty of the Contracting Parties. As a consequence, the Court handed down only twenty judgments in the period from 1959 to 1975.15 In the 1980s, a new geopolitical atmosphere of human rights promotion and steady growth in the number of Contracting Parties led the Commission to refer more and more cases to the Court, which in turn made it increasingly difficult to manage the case load and keep the length of proceedings in check. The surge of cases burdened the parttime Court so heavily that the average duration of proceedings skyrocketed to somewhere between five and six years. As a consequence, the future of the entire Strasbourg system seemed dim unless a remedial overall were to occur.16 In 1994, out of the disorder, emerged Protocol 11, which comprehensively restructured the control machinery of the Convention. The European Commission of Human Rights as a filter mechanism was abolished and individuals were granted direct access to the Court, which became a full-time court. The condition of prior unsuccessful exhaustion of domestic remedies remained. Importantly for the Contracting Parties, acceptance of the 14. See Astrid Kjeldgaard-Pedersen, The Evolution of the Right of Individuals to Seise the European Court of Human Rights, 12 J. HIST. INT’L L. 267 (2010). 15. See id. The reluctance of the Contracting States to accept individual complaints is also illustrated by the fact that only Germany was willing to do so from the start. The United Kingdom followed in 1966 and France only in 1981. See also Christian Walter, History and Development of European Fundamental Rights and Fundamental Freedoms, in EUROPEAN FUNDAMENTAL RIGHTS AND FREEDOMS 1, 5 (Dirk Ehlers ed. 2007). 16. The number of applications rose from 404 in 1981 to 4,750 in 1997. See Donald W. Jackson, Increasing Caseload and Protocol 11 Reforms, in DAVID P. FORSYTHE, ENCYCLOPEDIA OF HUMAN RIGHTS 175 (Vol. I, 2009). For further analysis see also MIKAEL RASK MADSEN, FROM COLD WAR INSTRUMENT TO SUPREME EUROPEAN COURT: THE EUROPEAN COURT OF HUMAN RIGHTS AT THE CROSSROADS OF INTERNATIONAL AND NATIONAL LAW AND POLITICS, LAW & SOCIAL INQUIRY (2007), Vol. 32, No. 1, pp. 137-159. 2017] jurisdiction of the Court became compulsory.17 Unsurprisingly, this restructuring did not miraculously resolve the issue of the Court’s tremendous caseload, but nonetheless helped it to remain intact despite the number of applications increasing every year.18 B. Widening of the Convention via Geographic Expansion There are currently forty-seven Contracting Parties that make up the Council of Europe – a number that continues to grow.19 About 820 million citizens of these forty-seven states are protected by the Strasbourg system. Non-citizens are also protected by the ECHR if they are refugees, temporary residents, or otherwise come under the jurisdiction of a Contracting Party. This explains, in part, why the Court is so overburdened today. However, as stated above, of the forty-seven Contracting Parties, five or six countries produce between two-thirds and three-quarters of all complaints brought to the Court every year. Otherwise, the Court would be able to handle the caseload quite easily. Initially, there were twelve Contracting Parties to the Convention, which by and large shared the same post-World War II history, had functioning democracies, and had respect for the rule of law.20 The number of Contracting Parties did not increase significantly until the fall of the Soviet Union. The end of the cold war, however, led to a rush of accessions by the Central and Eastern European Countries (CEECs) seeking to integrate with the rest of Europe.21 Since 1990, twenty-one countries that were formerly part of the Soviet Union or controlled by it have joined the Council of Europe.22 The accession of the CEECs posed a unique and significant challenge for the ECtHR not only due to the rapidly increasing number of cases brought to it, but also because of an inevitable ideological shift. The largely like-minded group of Western European countries, which all had a particular aim when establishing the Strasbourg system, now had to accommodate former Soviet countries and, like all Contracting Parties, they have the right to send judges to the Strasbourg Court. The greater adjustments, however, were imposed on the CEECs. In order to comply with the Convention it was not only necessary to comprehensively revise domestic laws. Paper is patient after all but human rights and fundamental freedoms have to be respected in practice and not in theory alone. The biggest challenge, it turned out, was the comprehensive reform of the justice systems, from legal education all the way to the methods and policies of the highest courts.23 In 1996, yet another former Communist country joined the Council. Russia applied for accession in 1992, had it granted four years later, and has since wavered on the edge of expulsion and withdrawal.24 The 21. Poland, Czech Republic, Hungary, Romania, Bulgaria, the former Yugoslav Republic of Macedonia, Slovakia, Slovenia, Ukraine, Romania, Lithuania, Latvia, Estonia, Croatia, Bulgaria, and Albania. See Emmert & Petrović, supra note 20. 22. The Western member states’ rationale for promoting the early accession of former CEECs, as opposed to strict adherence to the requirements of membership and consequential alienation, can be attributed to the prevalent idea that human rights, democracy, and European identity would propagate in an inclusive Council of Europe. As we can say in hindsight, this worked quite well in some but certainly not in all of the new Member States. See Emmert & Petrović, supra note 20. 23. See, Frank Emmert, Rule of Law in Central and Eastern Europe, 32 FORDHAM INT’L L.J. 551 (2009); Zdenek Kühn, Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement, 52 AM. J. COMP. L.. 531 (2004); EAST EUROPEAN FACES OF LAW AND SOCIETY: VALUES AND PRACTICES (William B. Simons ed. 2014); see also, Frank Emmert & Siniša Petrović, The Past, Present, and Future of EU Enlargement, 37 FORDHAM INT’L L.J. 1349 (2014); EUROPEAN JUDICIAL SYSTEMS AS A CHALLENGE FOR DEMOCRACY 2017 (Elzbieta Kuzelewska et al. eds., 2015) (regarding the Expansion of the European Union). 24. Russia sought to join the Council of Europe for multiple reasons, including to strengthen trade ties with Europe and overall relations with the European Union and CEECs. 2017] acceptance of Russia aroused criticism from those who believed the Council was exceeding its geographical scope. More importantly, the critics feared the continuous expansion of the Council into the former Communist world, with a rather lax interpretation of the criteria for admission, undermined the system’s “moral authority.”25 Conceivably, the following quote by a rapporteur, proceeding Russia’s accession, somewhat confirms the critic’s reservations as merited: “Russia does not yet meet all Council of Europe standards. But integration is better than isolation; cooperation is better than confrontation.”26 To ensure Russia’s compliance with the Council’s objectives, specific membership criteria containing twelve agreements and twenty-five commitments were produced.27 Subsequent events have shown that this was not really successful.28 Perhaps the most profound accession attempt yet is one that has been discussed for decades – the accession of the European Union to the Convention. The European Union was set to become the fortyeighth Contracting Party to the Convention. Although all EU Member States are already members of the Council of Europe and Contracting Parties to the European Convention, accession of the EU itself would permit individuals to apply to the Court in Strasbourg for review of acts however, be asked whether the accession of the Russian Federation might in itself help to create conditions in conformity with Council of Europe standards, on the one hand through the commitments to be entered into by Russia upon accession and the subsequent monitoring procedure, and on the other hand, as a result of the mandatory judgments of the European Court of Human Rights. This consideration and other political arguments might speak in favour of Russia’s accession to the Council of Europe at this point in time. Thus the final decision would depend on whether a critical assessment of the current legal and human rights situation or a political evaluation of the chances and perspectives for improvement of this situation following the admission should prevail. Eur. Consult. Ass., Russia’s Application for Membership in the Council of Eur., Doc. No. 7463 (Jan. 18 1996), https://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID=7397&lang=EN. See also Mark Janis, Russia and the ‘Legality’ of Strasbourg Law, 1 EJIL 93-99 (1997). The reports illustrate nicely the conundrum between allowing for early accession in the hope that membership will have a positive effect on human rights and rule of law versus denying early accession and using leverage to insist upon better performance with regard to human rights and rule of law at the risk of alienation. 27. The criteria included things such as “agreement to bring to justice human rights violators in Chechnya; agreement to improve conditions of criminal detention,” etc. See Parl. Ass., Council of Eur., Application By Russia For Membership Of The Council Of Europe, OPINION NO. 193 (1996), http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=13932&lang=EN. 28. For a differentiated analysis see, for example, Anatoly I. Kovler, Russia: European Convention on Human Rights in Russia: Fifteen years after, in THE IMPACT OF THE ECHR ON DEMOCRATIC CHANGE IN CENTRAL AND EASTERN EUROPE – JUDICIAL PERSPECTIVES 351-72 (Iulia Motoc & Ineta Ziemele eds., 2016). For the argument that the large number of cases from Russia may be caused by the fact that Russian judges are particularly ECtHR friendly, in particular since they do not see enough movement toward rule of law and protection of human rights otherwise, see Alexei Trochev, All Appeals Lead to Strasbourg? Unpacking the Impact of the European Court of Human Rights on Russia, 17 DEMOKRATIZATSIYA 145-78, (2009). 2017] of EU institutions as well.29 The legal basis for such a groundbreaking move can nowadays be found in Article 59( 2 ) ECHR, as amended by Protocol No. 14, which states, “the European Union may accede to this Convention.”30 However, the European Union Court of Justice (‘the ECJ’) gave a negative opinion on the draft accession agreement out of concern that accession would upset the balance of the EU and affect the autonomy and effectiveness of the preliminary ruling procedure.31 This will be expanded below. In spite of the ECJ’s opinion, both the 2016 and 2017 Work Programmes of the CoE announced the continuing pursuit of EU accession. C. Evolution of the Convention via Protocols The Convention has been amended numerous times since its inception in 1950. These amendments came in the form of protocols added to the Convention. Some protocols have generated important updates of the Convention by adding fundamental rights and freedoms not previously contemplated by its founders. Other protocols have focused on changes to the mechanical structure of the Strasbourg system. Finally, some have dealt with the relationship between the Strasbourg system and national systems of human rights protection by introducing or amending the concepts of subsidiarity and the margin of appreciation.32 In sum, it can be said that the origin of each protocol chiefly stemmed from efforts to make the Strasbourg system more efficient and resilient and to recognize the evolution of human rights at the regional and international level. Using protocols, rather than actual amendments of the Convention, provides a measure of flexibility, since most of them do not have to be ratified and applied by all Contracting Parties. An exception applies, however, to those protocols that change the institutional structure or working methods of the Strasbourg system. The following section aims to summarize each protocol’s purpose, while also discussing the rationale for the most noteworthy changes. 1. 1950s to 1970s The First Protocol to the Convention entered into force on May 18, 1954 and added fundamental rights to those already protected under the Convention, including the right to education, the right to free elections by secret ballot, and the right to peaceful enjoyment of one’s property.33 Protocol 2 gave the Court competence to issue advisory opinions pursuant to requests by the Committee of Ministers of the Council of Europe, and Protocols 3 and 5 modified Articles 22, 29, 30, and 34 of the Convention dealing with the Commission pre-screening procedure. Protocols 2, 3, and 5 were subsequently replaced by Protocol 11, which completely restructured the Strasbourg system and is discussed below. Finally, Protocol 4 added fundamental rights and freedoms not previously listed in the Convention, namely the prohibition of imprisonment for debt, the right to liberty of movement and the freedom to choose one’s residence, the prohibition of expulsion of a State’s own nationals, and the prohibition of collective expulsion of aliens.34 33. See Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, E.T.S. No. 005 (entered into force Sept. 3, 1953). The First Protocol has been ratified by 45 of the 47 Contracting Parties, with Monaco and Switzerland abstaining so far. 34. Protocol 4 entered into force on May 2, 1968. See Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain Rights and Freedoms other than those already included in the Convention and in the First Protocol thereto, Sept. 16, 1963, ETS No. 46. Protocol No. 4 has been ratified by 43 of the 47 Contracting Parties, with Greece, Switzerland, Turkey, and the United Kingdom abstaining so far. 2017] 2. 1980s to 1990s As mentioned previously, changing sentiments in human rights law have motivated changes at both the national and regional level in Europe. A good example is Protocol 6, which entered into force on March 1, 1985 and abolished the death penalty during peacetime.35 This addition to the Convention mirrored sentiments and actions of most European States that had contemplated abolishing capital punishment for quite some time. Protocol 7 emerged three years later with the purpose of updating the scope of rights under the Convention to the scope of rights envisaged by the new International Covenant on Civil and Political Rights (‘the ICCPR’) adopted by the General Assembly of the United Nations. By adding procedural safeguards relating to expulsion of aliens (Article 1), a right of appeal in criminal matters (Article 2), a right to compensation for wrongful conviction (Article 3), a right not to be tried or punished twice (Article 4), and a right to equality between spouses (Article 5), the Council of Europe wanted to avoid conflicts between the Convention and the Covenant.36 Protocol 11 entered into force in 1996 as an answer to an influx of applications from the new member states in Central and Eastern Europe, where the European Convention applied for the first time, as well as a growing number of complaints by individuals from the old Western member states, where the Convention was finally becoming more widely known and appreciated. In light of these problems and in consideration of the Council of Europe’s expected further growth, Protocol 11 established a mechanical overhaul of the Strasbourg system and replaced Protocols 8, 9, and 10.37 By merging the two-organ system of the part-time European Commission and part-time Court of Human Rights, a single, full-time Court was created. This consolidation was done with the intent to “shorten the length of Strasbourg proceedings” and simultaneously to “maintain the authority and quality of the case-law in the future.”38 Furthermore, Protocol 11 retained the important feature that originally emerged from Protocol 9, which allows individuals to directly petition the Court after unsuccessful exhaustion of domestic remedies.39 Additionally, it kept the ability of the Court to issue advisory opinions when requested by the Committee of Ministers, as originally seen in Protocol 2. 3. 2000s to Present In recent years, both procedural and fundamental rights were added to the Convention. Protocol 12 developed after concerns that the original non-discrimination provision was too limited, since discrimination was only prohibited in the enjoyment of one of the other rights guaranteed by the Convention.40 To remedy this, Protocol 12 entered into force on April 1, 2005 and provides for a much wider, general prohibition of discrimination by any public authority.41 important changes to be made to the Convention itself, it required unanimous approval. See also Bernhardt, supra note 13, at 145-55. 38. Explanatory Report on Protocol No. 11 to the Protection of Human Rights and Fundamental Freedoms, Mar. 11, 1998, ETS No. 155 at 6. 39. The battle for giving individuals direct access to the Court was ongoing since the Court’s inception. Protocol 9 finally awarded such a right. The ideology for doing so is found in the Explanatory Report. See Explanatory Report on Protocol No. 9 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 6, 1990, ETS No. 140 at 3. It is stated that “. . . [t]he situation whereby the individual is granted rights but not given the possibility to exploit fully the control machinery provided for enforcing them, could today be regarded as inconsistent with the spirit of the Convention, not to mention compatibility with domestic-law procedures in State Parties.”. 40. One of many voices criticizing the limits of Article 14 of the Convention is Oddný Mjöll Arnardóttir. See ODDNÝ MJÖLL ARNARDÓTTIR, EQUALITY AND NON-DISCRIMINATION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS (2003). 41. Protocol No. 12 was opened for signature on November 4, 2000, and entered into force on April 1, 2005. It has so far been ratified by twenty Contracting Parties. See Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 2000, ETS No. 177. Another bold move was Protocol 13, which took Protocol 6’s abolishment of the death penalty further by abolishing capital punishment in all circumstances, including for crimes committed in times of war and imminent threat of war. The Protocol does not permit any derogation or reservation.42 Eight years later, Protocol 14 entered into force with the aim of establishing new admissibility criteria (Article 12), empowering a single judge to declare an application inadmissible (Article 7), empowering the Committee of Ministers in circumstances where States fail to execute judicial decisions (Article 16), and changing the judicial term of office to a single, nine-year term (Art. 2). Most interestingly, Protocol 14 includes a short but powerful addition which states “The European Union may accede to this Convention” (Article 17).43 As we know, actual accession by the European Union to the Convention has thus far not occurred. Protocols 15 and 16, both of which have yet to enter into force, have the ability to alter the Court’s relations with Contracting Parties.44 Protocol 15 amends the Convention in order to add references to the principle of subsidiarity and the doctrine of the margin of appreciation to the preamble. It also reduces the time within which an applicant may 42. The increased protection found in Protocol 13 emerged in recognition of the right to life as “an inalienable attribute of human beings” worth the utmost respect. Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, opened for signature on May 3, 2002, and entered into force on July 1, 2003. It has been ratified by 44 of the 47 Contracting Parties, with only Armenia, Azerbaijan, and Russia abstaining so far. See Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, May 3, 2002, ETS No. 187. Compliance will be tested if President Erdogan of Turkey follows through with his recent announcement that he wants to re-introduce the death penalty in his country. 43. Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, opened for signature on May 13, 2004, entered into force on June 1, 2010, after ratification by all 47 Contracting Parties. See ETS No. 194. Article 17 of the Protocol added a new paragraph 2 to Article 59 of the Convention regarding the EU. 44. For further analysis see Noreen O’Meara, Reforming the ECtHR: The Impacts of Protocols 15 and 16 to the ECHR, iCourts Working Paper Series, No. 31, (Sept. 1 2015), available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2654205. 5. take any appropriate further action, in accordance with domestic law, against persons suspected of being the perpetrators and instigators of such interference, including, where justified, by seeking their prosecution and the punishment of those found guilty; 6. if they have not already done so, ratify the 1996 European Agreement relating to persons participating in proceedings of the European Court of Human Rights . . .268 When reviewing the central issues addressed in these documents, one cannot but admit that virtually every problem in the effective implementation of the ECHR in the Contracting Parties has already been addressed. Many of them were also summarized in the Report of the Group of Wise Persons to the Committee of Ministers of November 15, 2016 about an overall strategy to ensure the long-term effectiveness of the Convention.269 The question to be answered is why the caseload continues to grow and why even the number of repetitive cases is not in serious decline. More importantly, one has to wonder why even longstanding problems with the execution of judgments of the ECtHR continue to persist. How can it be that the share of judgments that have not been executed within five years has grown from twenty percent in 2011 to fifty-five percent in 2015?270 Possibly out of a certain degree of disillusionment with the effectiveness—or rather lack thereof—of the many beautiful resolutions and declarations, the Council of Europe has more recently pursued a different approach. In response to the Brighton Declaration of April 20, 2012 on the Future of the European 268. Committee of Ministers, Resolution CM/Res(2010)25 on member states’ duty to respect and protect the right of individual application to the European Court of Human Rights, (Nov. 10, 2010), available at: http://www.vm.ee/sites/default/files/content-editors/Res_2010_ 25_eng.pdf. The reader could be forgiven for asking why it is not in any case required for a state wishing to join the Council of Europe not only to ratify the ECHR but also the 1996 Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights. 269. See REPORT TO THE GROUP OF WISE PERSONS TO THE COMMITTEE OF MINISTERS CM(2006)203, (Nov. 15, 2006), available at: https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805d7893. 270. See COMMITTEE OF MINISTERS, 9TH ANNUAL REPORT OF THE COMMITTEE OF MINISTERS ON THE SUPERVISION OF THE EXECUTION OF JUDGMENTS AND DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS 10 (2015), available at: https://rm.coe.int/168062fe2d. 1154 FORDHAM INTERNATIONAL LAW JOURNAL Court of Human Rights,271 the Steering Committee for Human Rights (“CDDH”) was charged with the compilation of a report on The Longer-Term Future of the System of the European Convention on Human Rights. In this report the CDDH gathered and discussed a wide range of measures already taken or newly proposed. Some of the discussion points may be surprising, for example that the CDDH considered it necessary to remind the Contracting Parties that they “have undertaken to abide by final judgments of the Court to which they are parties.”272 However, the truth is that “[i]nadequate national implementation of the Convention remains among the principal challenges or is even the biggest challenge confronting the Convention system.”273 The CDDH Report identified a number of reasons, why this remains such a challenge: – The Court’s case law is “voluminous” and “subject to constant enrichment,”274 a reference to the problem of signal and noise and the importance for the Court of signaling clearly which decisions are the most important and should make it into textbooks and university curricula. – Effective implementation of European human rights at the national level requires “effective involvement of and interaction between a wide range of actors (members of government, parliamentarians, and the judiciary as well as national human rights institutions, civil society and representatives of the legal professions) . . . .275 To this we should absolutely add the other members of the public administration who interact with citizens, in particular but not limited to the law enforcement agencies! As we have already postulated in 2012: Human rights and fundamental freedoms will not be effectively guaranteed until every person who is potentially going to be a victim or a perpetrator has been educated about his or her rights and obligations. Just like every person has to have a basic sense of 271. See EUR. CT. HUM. RTS., HIGH LEVEL CONFERENCE ON THE FUTURE OF THE EUROPEAN COURT OF HUMAN RIGHTS (Apr. 20, 2012), http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf. 272. See STEERING COMMITTEE REPORT, supra note 197, at ¶ 24 (with a reference to Art. 46 of the Convention). 273. STEERING COMMITTEE REPORT, at ¶ 34. 274. Id. at ¶ 36 275. Id. at ¶ 35 2017] what is required and what is prohibited under the laws on crimes and misdemeanors, and just like every person needs to understand the basic traffic rules, each Member State should educate the public at large about human rights and the guarantees provided by the ECHR. This does not require sending every person into law school courses. Short TV spots, along the lines of public interest commercials, and other forms of information dissemination, can already make a big difference. More importantly, government officials who are not legally trained but part of law enforcement, in particular prison wardens and police officers, have to receive systematic training on (European) human rights and fundamental freedoms. Model codes of conduct, best practice standards, and similar tools for these professionals would also help if made available in the respective languages and endorsed either by the governments themselves or by the relevant professional organizations. Every problem that can be avoided at the level of these professionals will already not burden the domestic, let alone the international judicial review procedures. . . . [T]he lack of suitable CLE requirements and the absence or insufficiency of training opportunities for private practitioners not only contributes to the poor record of these countries in the application of the ECHR, which in turn is reflected both in the high number of cases going to Strasbourg, the relatively high percentage of judgments finding a violation, and the serious problems these countries seem to have with the execution of the judgments of the EuCrtHR. . . . Where a significant percentage of practitioners are regularly providing mediocre legal services and/or are unable or unwilling to keep up to date about developments on the international level with relevance to their area(s) of practice, the rule of law is compromised at its core.276 Above all, effective implementation at the national level also requires the availability of the Court’s case law in the official languages of the Contracting Parties. The limitation of the Council of Europe’s working languages to English and French seemed like a stroke of genius when the official languages of the European Union proliferated to twenty-four in the wake of the Eastern European enlargements. 276. See Frank Emmert, The Implementation of the European Convention on Human Rights and Fundamental Freedoms in New Member States of the Council of Europe – Conclusions Drawn and Lessons Learned, in THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS IN CENTRAL AND EASTERN EUROPE 597, 609-12 (Leonard Hammer & Frank Emmert, eds., 2012), [hereinafter Emmert, Implementation] (emphasis added) (footnotes omitted). However, as Ole Due, then President of the European Court of Justice in Luxembourg, pointed out to us many years ago, one can’t very well tell individuals and government officials in the member states that they are bound by supranational judgments and other supranational rules if one does not even have them available in their respective languages. Thus, we already noted in 2012 that the decisions of the ECtHR— at least to the extent that they are not just dealing with repetitive cases— need to be translated systematically into all official languages of the Contracting Parties.277 To be fair, the Council of Europe has made significant progress in this direction. At least some of the case law is nowadays available also in Albanian, Arabic, Armenian, Azerbaijani, Bulgarian, Chinese, Czech, Hungarian, Italian, Macedonian, Polish, Russian, Turkish, and Ukrainian.278 Given its resource constraints, the Court has focused on translations into languages where problems exist and persist. Thus, for example, the first and so far only case law guide available in Italian deals with the right to a fair trial in criminal cases. – To prevent human rights violations from happening in the first place, it is important to start with existing and new legislation and to ensure its compatibility with Convention standards.279 The CDDH specifically encourages that parliamentary committees or sub-committees are formed for the assessment of conformity of draft legislation and that reports by these committees should be required before a draft can go to the full parliament for a vote. We agree that all Contracting Parties should have parliamentary commissions or, even better, joint commissions composed of members of the legislative, executive and judicial powers, to oversee and sign off on the ECHR compatibility of all draft legislation before it is finalized and voted on by parliament. Ideally, the commissions would also work backward and identify problems in existing legislation, in particular after decisions by the ECtHR mandate a new understanding of a particular right or freedom in the ever evolving European system. In this regard, Contracting Parties need to be encouraged to look at the entire body of case law of the ECtHR, not only their own cases. Furthermore, primacy clauses along the lines of the example in the next section could also be inserted in key national laws, such as the criminal 277. Id., at 609. 278. See generally Case Law Analysis, EUR. CT. HUM. RTS. http://www.echr.coe.int/Pages/home.aspx?p=caselaw/analysis&c=#n1347528850996_pointer. Information for persons wishing to apply to the Court is provided in a total of 36 languages. 279. STEERING COMMITTEE REPORT, supra note 197, at ¶¶ 52-57. 2017] code, the code on criminal procedure, the administrative procedure code, the law on courts, laws dealing with police powers and national security, as well as substantive norms like the media law, the law on political parties, etc. to remind not only those applying the law but also those subjected to it of the ECHR guarantees. All of this makes eminent sense and it remains a mystery why so few of the Contracting Parties are taking up these suggestions since it would seem to be in their best interest at least to know if and when a conflict with Convention standards might exist. The CDDH contemplated whether to recommend the creation of “new domestic remedies provided by a special judicial organ or a special chamber dealing exclusively with Convention matters.”280 The idea here is a kind of national filter mechanism doing what would otherwise be requested of the ECtHR. In the end, the CDDH decided to leave it up to the Contracting Parties which remedies or combination of remedies they want to provide.281 The CDDH shows a lot of deference here, specifically stating “that the Contracting Parties are afforded a margin of discretion in conforming to their obligations under Article 13 [the right to an effective remedy]”.282 The unfortunate reality is, however, that too many of the Contracting Parties have become quite comfortable with not conforming to their obligations! Therefore, we would argue that the time for extensive deference is over and that Contracting Parties generating a disproportionate number of admissible and meritorious complaints have to implement one or more of a range of measures to address their evident problems. 2. Some Additional Proposals for Consideration Already in 2012, we strongly endorsed the idea that the Contracting Parties should insert a supportive clause in their respective constitutions and that such insertion should in fact be required from a country that wishes to join the Council of Europe.283 Of course, this 280. STEERING COMMITTEE REPORT, supra note 197, at ¶ 66. 281. Id. 282. Id. at ¶ 67 (footnotes omitted). 283. See Emmert, Implementation, supra note 278, at 601-04. The Council of Europe, in particular its Parliamentary Assembly, did apply a flexible approach and did provide different should have become mandatory before the CEECs were admitted284 and one could argue that we are trying to close the barn door after the horses have bolted. However, if the one or the other country were willing to insert something along the following lines when next updating their constitution, nothing would be lost and much could be gained: All branches of government, including the legislature, executive, and judiciary, are committed to the protection of human rights and fundamental freedoms pursuant to the standards enshrined in the European Convention on Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights.285 In case national guarantees differ from European standards, the most advantageous interpretation for the individual shall prevail. The legislature shall review existing legislation to ensure conformity with European standards for the protection of human rights and fundamental freedoms and shall refrain from adopting new legislation that falls short of these guarantees. The executive branch, on all levels, shall protect and promote human rights and fundamental freedoms at all times. Derogations shall be permitted only to the extent necessary in a democratic society, conforming to the principle of proportionality, and otherwise in conformity with the European Convention and the case law of the European Court of Human Rights. The judiciary, including all courts on all levels and all proceedings, shall oversee and enforce respect of human rights and fundamental freedoms pursuant to these standards both by the other branches of government and by private parties against each other. The Member States with different accession requirements. For example, Moldova was told to amend its constitution within a year of accession to guarantee judicial independence. See, STEVEN GREER, THE EUROPEAN CONVENTION ON HUMAN RIGHTS - ACHIEVEMENTS, PROBLEMS AND PROSPECTS 108 (2006). Therefore, the present proposal would not seem outside of the powers and possibilities of the Council. 284. The only European countries currently not yet in the system of the Council of Europe and the Convention are Belarus and Kosovo. 285. See generally, Alec Stone Sweet, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe, 1 J. GLOBAL CONSTITUTIONALISM 53, 53-90 (2012) (promoting a similar obligation as a central pillar of his appeal). 2017] judiciary is firmly committed to providing adequate remedies against possible infringements of human rights and fundamental freedoms on the national level to eliminate, as much as possible, the need of parties to call upon the European Court of Human Rights.286 Even if a Contracting Party cannot be moved to insert such a clause into its constitution, it may be possible to insert more limited clauses into specific laws, such as the criminal code, the code on criminal procedure, etc. as suggested above. The Council of Europe could support such efforts with model clauses or, even better, entire model laws for modern and human rights compatible laws dealing with police powers and national security, prison services, political parties and other civil society associations, the internet and the media, etc. To the extent the legislative branches are not willing or able to provide clear endorsements for the ECHR, much the same results could still be achieved if national supreme or constitutional courts would commit to systematically squashing and remanding lower court decisions that fall short of the standards of the ECHR as interpreted in the case law of the ECtHR. On the basis of the ratification and direct effect of the ECHR, most supreme or constitutional courts of the Member States would have the power to do just this. The question remains whether they have the willingness and the technical skills as well. To give but one example, Article 90 of the Turkish Constitution stipulates that “[i]n the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”287 On this basis, the Constitutional Court has held that provisions of Turkish law openly in conflict with the ECHR cannot be applied any more, they “have been implicitly repealed”.288 Against this background, it is not surprising that President Erdogan, after the real or staged coup attempt of July 15, 2016, went specifically after judges he considered inconvenient or disloyal. The fallout from Erdogan’s increasingly totalitarian rule has yet to hit the Convention organs in Strasbourg. Another thing the suggested constitutional amendment would clarify is the erga omnes nature of decisions of the ECtHR. This is currently widely under-appreciated. To the extent the Contracting Parties have commissions to review national laws for ECHR compatibility and to the extent they require continuing education of lawyers, judges, and administrative officials in matters related to human rights, they tend to focus on judgments of the ECtHR handed down against their own state and ignore cases against other countries that are just as important, if not more, for the correct interpretation of the ECHR and the evolution of human rights protection in Europe.289 The justification for this myopic approach is the general mantra that ECtHR judgments—by contrast to the decisions of the ECJ in the preliminary ruling procedure—do not have erga omnes effect. Thus, as the CDDH not only admits but also supports, the Contracting Parties are under no obligation “to abide by final judgments of the Court in cases to which they are not parties.”290 We would argue, however, that a statement as this one should never stand alone since it encourages the widespread practice by all three branches of government in many Contracting Parties to ignore any and all decisions of the ECtHR except the ones directly addressed to the respective country. While it is true that the Contracting Parties only “undertake to abide by the final judgment of the Court in any case to which they are parties”,291 hence are not formally bound by the other judgments, they have also promised to “secure to everyone within their jurisdiction the rights and freedoms defined in . . . this Convention.”292 Since the rights and freedoms in the ECHR cannot be understood without reference to the case law of the ECtHR, the Contracting Parties cannot possibly fulfill their obligations without a deep level of understanding of and engagement with all important judgments of the ECtHR. The former Vice-President of the 289. See generally STEERING COMMITTEE REPORT, supra note 197, at ¶ 24. 290. See id. at ¶ 64. 291. ECHR, supra note 8, art. 46( 1 ) (emphasis added). 292. Id., art. 1. 2017] ECtHR, Judge Zupančič explained the binding effect of the judgments of the Court as follows: The interpretation of a judgment of the European Court of Human Rights is no different from the interpretation of any other precedent judgment delivered by any other court. In the last analysis, the only difference obtains from the perception of the binding nature of the superior court judgments.293 … Because the judges of the lower courts know that the judgments of the higher courts are at least de facto binding on them, these judges . . . read and interpret judgments delivered by the higher (supreme and constitutional) courts. They know that effectively their independence vis-à-vis the higher courts is an ideological fiction. If they did not believe this, they would be reversed over and over again.294 The large number of so-called repetitive applications, even from the same Contracting Parties, are a stark reminder that the ECtHR is not sufficiently perceived by the national judges as a superior court issuing important precedents they should better take into account, lest they be reversed over and over again. Arguably, the ECtHR, in spite of serious resource constraints, had done its share in signaling to the national judges the important judgments, in particular by allocating these cases to the Grand Chamber. Also, as mentioned earlier, the Court has been producing translations of important cases into a number of additional languages and provides links to external sites and organizations for additional language versions.295 The ball is, therefore, largely in the court of the Contracting Parties.296 They have to do more to signal to their judges—and ultimately their civil servants in all three branches of government—that knowledge of and compliance with the ECHR matters, not least for those who want to be promoted and/or enjoy other benefits in the future. And they have to provide their judges 1162 FORDHAM INTERNATIONAL LAW JOURNAL and other civil servants with the training and other tools to enable them to implement all human rights guarantees under the Convention as interpreted by the ECtHR in their daily work every time an issue comes up where a conflict between the ECHR and national law or practice might arise. B. Strengthening the EU System Since the EU is not primarily perceived as a guardian of human rights and fundamental freedoms and the European Court of Justice has been better able to control its case load and the procedural delays, there are far fewer proposals on EU human rights protection reform. We don’t know whether the founding fathers who came up with the preliminary ruling procedure fully understood the powerful tool they handed to the ECJ but the combination of co-opting the national judges as agents of EU law and of giving the decisions of the ECJ erga omnes effect is quite probably the single most important secret of success of the European Union and its legal system. The primary deficiency of the EU in the realm of human rights protection, the lack of a catalog or bill of rights, has been corrected, first via the practice of the ECJ and more recently by the adoption of the European Charter. This leaves us only two points for the final part of this analysis: Should the EU still accede to the ECHR as well? And should the European Charter, regardless of the answer to the first question, become the bill of rights not only of the EU but also for the Member States in all their acts and omissions? 1. Accession to the European Convention on Human Rights and Fundamental Freedoms? The idea of EU accession to the ECHR has been around for decades. At first, it did not seem possible, since only Contracting States of the Council of Europe were entitled to ratify the ECHR. However, at least since the entry into force of Protocol No. 14 to the ECHR on June 1, 2010, and with it the addition of a new paragraph 2 to Article 59, “[t]he European Union may accede to this Convention.” The idea also seems to be supported by the Member States of the European Union. Not only did the Member States endorse the case law of the ECJ by including Article 6( 3 ) in the Treaty on European Union pursuant to which: Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms 2017] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.297 They also wrote specifically in Article 6( 2 ) TEU that “[t]he Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. . . .”298 As a consequence, it has been said that pretty much everyone agrees that the European Union should accede to the ECHR. Well, not quite everyone.299 The European Court of Justice, for one, did not agree. When the EU Commission made use of the procedure outlined in Article 218(11) TFEU and asked the ECJ whether accession of the EU to the ECHR would be compatible with the EU Treaties, the Full Court, in its Opinion 2/13 of 18 December 2014, decided as follows: 157. As the Court of Justice has repeatedly held, the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals (see, in particular, judgments in van Gend & Loos, 26/62, EU:C:1963:1, p. 12, and Costa, 6/64, EU:C:1964:66, p. 593, and Opinion 1/09, EU:C:2011:123, paragraph 65). 158. The fact that the EU has a new kind of legal order, the nature of which is peculiar to the EU, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation, has consequences as regards the procedure for and conditions of accession to the ECHR. … 297. Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 1997 O.J. C 340/1 [hereinafter Treaty of Amsterdam]. 298. Id., art. 6( 2 ). 299. See Defeis, supra note 114. See also PAUL GRAGL, THE ACCESSION OF THE EUROPEAN UNION TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS (2013); Francis G. Jacobs, The European Convention on Human Rights, the EU Charter of Fundamental Rights and the European Court of Justice: The Impact of European Union Accession to the European Convention on Human Rights, in THE FUTURE OF THE EUROPEAN JUDICIAL SYSTEM IN A COMPARATIVE PERSPECTIVE 291 (Ingolf Pernice, Juliane Kokott, & Cheryl Saunders eds., 2006); Xavier Groussot & Eric Stavefeldt, Accession of the EU to the ECHR: A Legally Complex Situation, in HUMAN RIGHTS IN CONTEMPRARY EUROPEAN LAW, SWEDISH STUDIES IN EUROPEAN LAW, VOL. 6, (Joakim Nergelius & Eleonor Kristoffersson eds., 2015). 167. These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’. 168. This legal structure is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected. 169. Also at the heart of that legal structure are the fundamental rights recognised by the Charter (which, under Article 6( 1 ) TEU, has the same legal value as the Treaties), respect for those rights being a condition of the lawfulness of EU acts, so that measures incompatible with those rights are not acceptable in the EU (see judgments in ERT, C-260/89, EU:C:1991:254, paragraph 41; Kremzow, C-299/95, EU:C:1997:254, paragraph 14; Schmidberger, C-112/00, EU:C:2003:333, paragraph 73; and Kadi and Al Barakaat International Foundation v Council and Commission, EU:C:2008:461, paragraphs 283 and 284). 170. The autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU (see, to that effect, judgments in Internationale Handelsgesellschaft, EU:C:1970:114, paragraph 4, and Kadi and Al Barakaat International Foundation v Council and Commission, EU:C:2008:461, paragraphs 281 to 285). 171. As regards the structure of the EU, it must be emphasised that not only are the institutions, bodies, offices and agencies of the EU required to respect the Charter but so too are the Member States when they are implementing EU law (see, to that effect, judgment in Åkerberg Fransson, C-617/10, EU:C:2013:105, paragraphs 17 to 21). … 174. In order to ensure that the specific characteristics and the autonomy of that legal order are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law. 2017] 175. In that context, it is for the national courts and tribunals and for the Court of Justice to ensure the full application of EU law in all Member States and to ensure judicial protection of an individual’s rights under that law (Opinion 1/09, EU:C:2011:123, paragraph 68 and the case-law cited). 176. In particular, the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law (see, to that effect, judgment in van Gend & Loos, EU:C:1963:1, p. 12), thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (see, to that effect, Opinion 1/09, EU:C:2011:123, paragraphs 67 and 83). 177. Fundamental rights, as recognised in particular by the Charter, must therefore be interpreted and applied within the EU in accordance with the constitutional framework referred to in paragraphs 155 to 176 above. . . . 182. The Court of Justice has . . . already stated in that regard that an international agreement providing for the creation of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including the Court of Justice, is not, in principle, incompatible with EU law; that is particularly the case where, as in this instance, the conclusion of such an agreement is provided for by the Treaties themselves. The competence of the EU in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions (see Opinions 1/91, EU:C:1991:490, paragraphs 40 and 70, and 1/09, EU:C:2011: 123, paragraph 74). 183. Nevertheless, the Court of Justice has also declared that an international agreement may affect its own powers only if the indispensable conditions for safeguarding the essential character of those powers are satisfied and, consequently, there is no adverse effect on the autonomy of the EU legal order (see Opinions 1/00, EU:C:2002:231, paragraphs 21, 23 and 26, and 1/09, EU:C:2011:123, paragraph 76; see also, to that effect, judgment in Kadi and Al Barakaat International Foundation v Council and Commission, EU:C:2008:461, paragraph 282). 184. In particular, any action by the bodies given decision-making powers by the ECHR, as provided for in the agreement envisaged, must not have the effect of binding the EU and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU law (see Opinions 1/91, EU:C:1991:490, paragraphs 30 to 35, and 1/00, EU:C:2002:231, paragraph 13).300 Ultimately, the ECJ concluded that the EU could not accede to the ECHR because oversight by the ECtHR would be “liable to adversely affect the specific characteristics of EU law and its autonomy”,301 would be “liable in itself to undermine the objective of Article 344 TFEU and, moreover, goes against the very nature of EU law, which, as noted in paragraph 193 of this Opinion, requires that relations between the Member States be governed by EU law to the exclusion, if EU law so requires, of any other law”302 and finally “would be liable to interfere with the division of powers between the EU and its Member States.”303 And while the European Court could be accused of having a bit of a personal interest in the matter, since it was clearly not eager to see its decisions “appealed” to the Strasbourg Court, it is not at all obvious what the added value of an accession to the ECHR would be. First, the human rights guarantees under the Charter generally go further in substance than the guarantees under the much older Convention, even when the evolution of the Convention via the case law of the ECtHR is taken into account. Thus, it is certainly not impossible but still quite unlikely that Convention oversight of the EU would provide substantially better human rights protection in any given case. The main situations where differences would play out are likely to be the highly contentious and open ended debates in modern societies, such as the conflict between pro-life and pro-choice proponents in the debate over abortion or the conflict between those who want to prioritize security over privacy in the war on terror and those who seek to safeguard a larger measure of privacy even if it comes at a cost to security. In the end, the differences would be the (personal) judgment of a group of judges in Strasbourg versus the (personal) judgment of a 300. Opinion of the Court (Full Court) of 18 December 2014, Opinion pursuant to Article 218(11) TFEU, Case Opinion 2/13, [2014], ECLI:EU:C:2014:2454. 301. Id. at ¶ 200. 302. Id. at ¶ 212. 303. Id. at ¶ 225. 2017] group of judges in Luxembourg in a case that does not have clear legal guidelines one way or another. Moreover, any additional benefit one might gain from ECtHR oversight would come at steep cost: The procedure in the ECJ already takes about two years, and that is after any preliminary procedures before the Commission or in the national courts. An “appeal” to the ECtHR would add several more years to the overall duration of the dispute and we may safely assume that parties who are willing and able to take a case all the way to Luxembourg would not stop there if another level of review was (potentially) available in Strasbourg. Therefore, many of the crucial and open-ended decisions of the European Court of Justice would be “appealed” to the European Court of Human Rights and further clog up the system there. Last but not least, if it is true that the most important cases would be the open ended value decisions, it is not at all clear that human rights would ultimately be better protected in a court where a significant number of judges are from Eastern and South Eastern Europe, hence from countries where respect for the rule of law, freedom, democracy, and human rights is still not always secured at a level comparable to the EU. Even without a formal ratification of the ECHR by the European Union, the ECtHR has some ways and means, albeit limited, to oversee activities of the European Union. This was illustrated in the Bosphorus decision of the ECtHR of June 30, 2005.304 The applicant, Bosphorus Hava Yollari Turizm, a Turkish charter airline company, had leased several aircraft from Yugoslav Airlines right before the UN adopted and the European Union implemented sanctions against the Federal Republic of Yugoslavia in 1991. In May 1993, one of the aircraft was sent to Ireland for maintenance and was impounded pursuant to EU Regulation 990/93 Concerning Trade Between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro).305 Legal remedies in the Irish courts and in the European Court of Justice306 were unsuccessful and the airline finally brought the case to Strasbourg. Although the case was brought against Ireland, it was clear that Ireland had merely acted upon instructions from the European Union. In a brief submitted to the ECtHR, the EU Commission argued that Ireland had no discretion in the matter and should not be held responsible for an EU act and that EU acts themselves should not be reviewed as long as the European Union had not acceded to the ECHR.307 The European Court of Human Rights disagreed, however, and held that Ireland was responsible for acts of the Irish Minister of Transport even if the latter acted in the implementation of EU law and without discretion of his own.308 Ultimately, the ECtHR crafted a highly differentiated approach: 151. The question is therefore whether, and if so to what extent, that important general interest of compliance with Community obligations can justify the impugned interference by the Irish State with the applicant company’s property rights. 152. The Convention does not, on the one hand, prohibit Contracting Parties from transferring sovereign power to an international (including a supranational) organisation in order to pursue cooperation in certain fields of activity . . . . Moreover, even as the holder of such transferred sovereign power, that organisation is not itself held responsible under the Convention for proceedings before, or decisions of, its organs as long as it is not a Contracting Party . . . . 153. On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention . . . . 154. In reconciling both these positions and thereby establishing the extent to which a State’s action can be justified by its compliance with obligations flowing from its membership of an international organisation to which it has transferred part of its 2017] sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards . . . . The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention . . . . 155. In the Court’s view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides . . . . However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection. 156. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation. However, any such presumption can be rebutted if, in the circum stances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a ‘constitutional instrument of European public order’ in the field of human rights . . . .309 The careful reader will not only smile at the recurrence of the famous “so long as” formula of the German Constitutional Court310 in para. 155 of the present judgment. She will also note that the ECtHR relies not only on the general level of protection provided by the European Union but also mandates a safeguard for the particular case.311 Given the fact that the vast majority of EU law is made operational via legislative and administrative acts of the Member States, as outlined 309. Id. at ¶¶ 151-56 (emphasis added). 310. See supra notes 143 and 153 and accompanying text. 311. See id. at ¶ 156. above, this decision is potentially far reaching, even if the ECtHR did ultimately not find a violation of the property rights of the airline either. In conclusion, we suggest that a systematic oversight by the European Court of Human Rights over the institutions of the EU is unnecessary and would do more harm than good. Already, the ECtHR is able to pull the emergency break via oversight of the Member States in their implementation of EU law, should any real deficits in the protection of human rights emerge at the EU level. 2. Application of the Charter to All Acts of the Member States? The European Charter is not only a reflection of the shared values of the entire European Union, hence transcends the more particular values of the individual Member States. As a very recent codification, it is also distinctly modern, even progressive, at least for the most part. Article 8, Protection of Personal Data; Article 13, Freedom of Arts and Sciences; Article 14, Right to Education; Article 16, Freedom to Conduct a Business; Article 18, Right to Asylum; Article 24, Rights of the Child; Article 25, Rights of the Elderly; Article 31, Fair and Just Working Conditions; Article 34, Social Security and Social Assistance; Article 35, Health Care; Article 37, Environmental Protection; as well as Article 38, Consumer Protection, are guarantees one does not always find in national constitutions of the European Member States and certainly not in older bills of rights like in the US Constitution. The prohibition of discrimination in Article 21 of the Charter is also more inclusive than most with its specific references to disability, age, and sexual orientation. For all these reasons, we would naturally wish for the guarantees of the Charter to be applicable as widely as possible. As we have outlined above, at the present time, the Charter is binding primarily on the institutions of the European Union themselves. The Member States and their various institutions and bodies are bound only if and when they are implementing EU law.312 Within their own sphere of authority, the Member States remain accountable under their 312. See Koen Lenaerts, Exploring the Limits of the EU Charter of Fundamental Rights, 8 EUR. CONST.’L L. REV. 3, 375-403 (2012); Allan Rosas, When is the EU Charter of Fundamental Rights applicable at national Level?, 19 JURISPRUDENCE 4, 1271 (2012). 2017] own constitutional provisions, as well as the European Convention. However, to the extent the Charter might provide substantially better protection, the Member States are not bound by it when adopting or implementing their own law outside of the sphere of application of EU law. This begs the question whether we should argue and hope for a reform, however accomplished, that would “secure to everyone” in the EU at all times “the rights and freedoms” provided in the Charter,313 regardless whether they are confronted with an act or an omission at the local, regional, national, or European level. On the one hand, EU law already covers or at least touches upon a broad range of subjects, leaving relatively few areas that remain entirely under the control of the Member States.314 Thus, one might be tempted to say that an expansion of the application of the Charter to all activities of the Member States would not necessarily be a huge step. This would be a fallacy, however. In particular acts and omissions of the Member States that directly affect the personal rights and freedoms of their own citizens, such as the bulk of what is nowadays known as police powers and homeland security, as well as areas including taxation, family matters, and many more, largely remain outside of EU law and, therefore, outside of the area of application of the Charter. Thus, the comprehensive application of the Charter to all acts and omissions of the Member States would invariably generate many additional claims by individuals who are looking for a remedy wherever they may find one, be it the national constitution, the European Convention, or the EU Charter. On the other hand, the ECJ has been reasonably successful in the management of its caseload and has largely kept the procedural delays to under two years. Thus, it has been spared the traumatic experience 313. The quoted passages are from Article 1 of the European Convention. That provision obligates “The High Contracting Parties”. By contrast, the corresponding provision in the Preamble of the Charter stipulates that “The Union . . . recognizes the rights, freedoms and principles” set out in the document (emphasis added). 314. Jacques Delors, in 1988, when he was president of the EU Commission, coined the famous phrase that “in ten years 80 per cent of the legislation [of the Member States] related to economics, maybe also taxes and social affairs, will be of Community origin.” See Annette Elisabeth Toeller, Claims that 80 per cent of Laws Adopted in the EU Member States Originate in Brussels Actually Tell Us Very Little About the Impact of EU Policy-Making, LSE (2012), http://blogs.lse.ac.uk/europpblog/2012/06/13/europeanization-of-public-policy/. A study of Member State legislation adopted between 2002 and 2005 found more differentiated numbers: 81.3% of national environmental policy was determined by EU law, but only 12.9% of homeland security measures and around 40% of economic legislation, for an overall average closer to 50%. See Das Ende vom Mythos 80 Prozent, DIE ZEIT (Jun. 4, 2009), http://www.zeit.de/online/2009/24/studie-eu-gesetze-deutschland. 1172 FORDHAM INTERNATIONAL LAW JOURNAL of the ECtHR, in particular after the accession of the Central and Eastern European countries in 2004 and 2007. Thus, one might be tempted to say that the ECJ, the final arbiter of EU law and its interpretation, is better able to handle cases coming from the Member States than the ECtHR and should not shy away from a larger role in the protection of human rights. After all, this argument might go, there are no direct complaints for individuals to Luxembourg. The ECJ has the national courts as first responders and will only be reached via the preliminary rulings procedure of Article 267 TFEU in cases where the national courts are at their wits end. Again, such an argument would be a fallacy. In an ideal world, the national courts would indeed carry the vast majority of the burden and bring to the European Court only those cases where a novel problem arises or where an older interpretation of EU law is begging for review. The reality is quite different, however. Not unlike the large number of repetitive cases brought to the ECtHR, the ECJ is confronted with its own deluge of unnecessary requests for preliminary rulings. First, there are many requests where the national judges could have found the answer in very similar or identical precedents of the European Court and could have avoided (another) reference, in particular if they would have researched also those cases that were previously brought from other Member States. Second, in many cases the national judges could have come up with a reasonable interpretation of EU law of their own by researching more broadly the values and principles already developed in EU statutory and case law. Instead, they often find it easier to ship their files to Luxembourg, where the ECJ, if truth be told, has neither the capacity nor the legitimacy to handle too many of these avoidable procedures. In the final analysis, we would argue that an expansion of the scope of application of the EU Charter to all acts and omissions of the Member States would largely risk a replication of the problems at the European Court of Human Rights, namely a flood going to the European Court of Justice that would overwhelm the institution in quantitative terms and subsequently lead to a decline in qualitative terms, both in the output of the Court and in the national compliance. VI. CONCLUSION Having described and compared the strengths and weaknesses of human rights protection under the European Convention on Human Rights and Fundamental Freedoms and under the EU Charter on Fundamental Rights, we hope that we were able to demonstrate that the success enjoyed by the European Court of Justice is not built on any particular internal procedures or reforms but on the cooptation of the national judges via the preliminary rulings procedure. In much the same way, any reforms of the inner workings of the European Court of Human Rights, whether they involve single-judge procedures, pilot judgments, or any other efforts at streamlining the work, will have their narrow limits. Without a qualitatively different collaboration by the first responders in the Contracting Parties, i.e. the national legislatures, executives, and judiciaries, any internal measures in Strasbourg can only bring temporary relief and will not deliver the ultimate result, namely a focus at the supranational level on the truly novel and important questions. Along the same lines, the ECJ in Luxembourg needs to resist mission creep, and the EU Member States, in particular the newer ones, need to strengthen the capacity at the national level so that we may all be able to continue to enjoy the full benefits of the preliminary rulings procedure. Nold , Case 4/73 ................................................1103 3. Human Rights Protection Inspired by the ECHR...............................................................1104 Hauer , Case 44/79 ............................................1104 4. Acceptance of Supremacy and Direct Effect by the National Supreme Courts .................................1105 5. National Authorities Bound by EU Human Rights? .............................................................1107 Wachauf , Case 5/88 .........................................1107 Charter....................................................................1109 IV. MY DREAMS ARE YOUR NIGHTMARES - THE PROTECTION OF HUMAN RIGHTS IN EUROPE..1116 Human Rights.........................................................1117 1. The Case-Load Problem.....................................1119 2. Justice Delayed Is Justice Denied ......................1121 3. Docket Control , Strasbourg Style.......................1124 4. Discouraging Applications via Low-Balling of Compensation ..................................................1129 Protection and the European Court of Justice ........1131 1. Too Much Protection? Accusations of Judicial Activism...........................................................1131 2. Too Little Protection? Accusations of Denial of Justice...............................................................1134 V. SOME MODEST AND SOME NOT SO MODEST PROPOSALS FOR REFORM .....................................1141 A. Strengthening the European Convention System ....1142 1. Ongoing Discussions and Existing Proposals ....1143 Recommendation No. R ( 2000 ) 2 on the re- European Court of Human Rights .............1143 Resolution ResDH ( 2001 )66 States' obligation to Rights.........................................................1144 4. Examples are provided in Jack Goldsmith, Should International Human Rights Law Trump US Domestic Law?, 1 CHI . J. INT'L. L . 327 ( 2000 ). See also Joan Fitzpatrick, Speaking Law to Power: The War Against Terrorism and Human Rights, 14 : 2 EUR. J. L. REFORM 241-64. 5. At the end of 2016 , the total number of cases “pending before a judicial formation” was 79,750 . Of these, 18 ,171 were against Ukraine; 12 ,575 against Turkey; 8 ,962 against Hungary; 7 ,821 against Russia; 7 ,402 against Romania; and 6,180 against Italy . Thus, a total of 61,711 or 77 . 4 percent of all cases pending at the end of 2016 originated in just six of the forty-seven Member States . By comparison, the number of cases pending against other large Member States was much smaller: 403 against France; 213 against Germany; and 231 against the United Kingdom. See EUR. COURT OF HUMAN RIGHTS, COUNCIL OF EUR ., ANNUAL REPORT 2016 , 191 - 92 ( 2017 ), http://www.echr.coe.int/Pages/home.aspx?p=court/annualreports&c=. 17. See Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby , May 11 , 1994 , E.T.S. No. 155 (entered into force Nov. 1 , 1998 ). 18. For further analysis see Paul Mahoney, New Challenges for the European Court of Human Rights Resulting from the Expanding Case Load and Membership, 21 PENN STATE INT'L L.REV . 101 - 14 ( 2002 ). 19. A comprehensive list of member states is available . See Chart of Signatures and Ratifications of Treaty 005 , Council of Eur., http://www.coe.int/en/web/about-us/our-memberstates (last visited Apr . 16 , 2017 ). 20. The original Contracting States were Belgium , Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Turkey, and the United Kingdom . See generally Frank Emmert & Siniša Petrović, The Past , Present, and Future of EU Enlargement, 37 FORDHAM INT'L L.J . 1349 ( 2014 ). See Pamela A. Jordan, Russia's Accession to the Council of Europe and Compliance with European Human Rights Norms , 11 J. DEMIKRATIZATSIYA 281 ( 2003 ) for details as to Russia's accession experience. Regarding (some) of the problems with Russia's compliance, see , e.g., Bill Bowring , The Russian Federation, Protocol No. 14 ( and 14bis), and the Battle for the Soul of the ECHR, 2 GOETTINGEN J . INT'L L . 589 ( 2010 ) ; Julia Lapitskaya , ECHR , Russia, and Chechnya: Two is Not Company and Three Is Definitely a Crowd, 43 NYU J . INT'L L . & POL . 479 ( 2010 ). 25. Walter Schwimmer , Timid Moral Policeman, ECONOMIST , Nov. 25 , 1999 , at 56, http://www.economist.com/node/326818 (last visited Apr. 16 , 2017 ). 26. Eur . Consult. Ass., Russia's Request for Membership of the Council of Europe, Doc . No. 7443 ( Jan . 2, 1996 ). The accession procedure had been suspended in 1995 after Russian armed forces intervened in Chechnya to crush the independence movement there. However, the negotiations resumed soon enough and, after the endorsement by the Political Affairs Committee under Mühlemann and several other experts, the Parliamentary Assembly voted by a two-thirds majority to admit the Russian Federation . This was done in spite of more than cautious remarks by the Committee on Legal Affairs and Human Rights: conditions of membership as laid down in Article 3 and 4 of the Statute of the Council 29. EU institutions interact with millions of individuals. As the law currently stands, EU institutions are not directly bound by the ECHR or the ECtHR's decisions. The Lisbon Treaty, as of December 1, 2009, commits the Union to accede to the ECHR. “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.” However, the Lisbon Treaty also upgraded the European Charter of Fundamental Rights from a statement of intent to a binding agreement, arguably making accession to the ECHR at least less urgent, if not entirely redundant. Nevertheless, the idea of EU accession is furthered by the recent article in Protocol 14, discussed in section 3 . See infra note 43. 30. ECHR, supra note 8, art. 59, note 2. 31. Draft International Agreement - Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms - Compatibility of the draft agreement with the EU and FEU Treaties, Opinion 2 /13, [2014] E.C.R. I- 2454 . 32. See generally Luzius Wildhaber, The European Convention on Human Rights: The Past, The Present , The Future, 22 AM. INT'L L. REV . 4 ( 2007 ). 35. Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty was opened for signature on April 28, 1983 . See ETS No. 114 . Protocol No. 6 has been ratified by 46 of the 47 Contracting Parties, with only Russia abstaining so far . 36. Explanatory Report to the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms , ETS No. 117 , Nov . 22 , 1984 . Protocol No. 7 has been ratified by 44 of the 47 Contracting Parties, with Germany, the Netherlands, and the United Kingdom abstaining so far . 37. Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms was signed on May 11, 1994 and entered into force on November 1, 1998, after ratification by all 47 Contracting Parties . See ETS No. 155. Since the protocol caused 286. See Emmert , Implementation, supra note 276, at 602-03. 287. Constitution of Turkey, Chapter D. Ratification of International Treaties, Article 90 ( 4 ), as last amended on May 22 , 2004 . 288. See the decisions of the Turkish Constitutional Court in B . No. 2013 /2187, 19/12/2013, ¶¶ 45 - 46 ; Application No. 2013 /4439, 6 /3/2014, cited in YAMAN AKDENIZ & KEREM ALTIPARMAK, EUROPEAN COURT OF HUMAN RIGHTS JUDGMENT IN THE CASE OF ARTUN AND GÜVENER V. TURKEY, MONITORING REPORT FOR IHOP HUMAN RIGHTS JOINT PLATFORM (Dec . 2016 ). 293. Boštjan M. Zupančič , Chapter 12 : On the Interpretation of Legal Precedents and of the Judgments of the European Court of Human Rights, § 3.3: The Erga Omnes Effect of ECHR Law, in THE OWL OF MINERVA 380 ( 2008 ) (emphasis added). 294. Id . (emphasis in original) . See also the language used by the Court itself in Ireland v . United Kingdom ( 1978 ), above note 62 and accompanying text. 295. See EUR . CT. HUM. RTS., CASE-LAW: LANGUAGE VERSIONS ( 2017 ), available at: http://www.echr.coe.int/Pages/home.aspx?p=caselaw/HUDOC/translations#n1357202442922_ pointer . 296. The CDDH Report also contains a number of suggestions how the Contracting Parties should improve national compliance . See STEERING COMMITTEE REPORT, supra note 197 , at 30-42 and 73 - 87 . Unfortunately, the language is sometimes too reserved, given the urgency of the matter . 304. Judgment of the ECtHR (Grand Chamber) of 30 June 2005 in the Case of Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v . Ireland, Application no. 45036 /98. 305. OJ 1993 L 102, at 14. 306. Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications, Case C- 84 /95, [1996] E.C.R. I- 3953 . 307. Judgment of the ECtHR (Grand Chamber) of 30 June 2005 in the Case of Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v . Ireland, Application no. 45036 /98, ¶ 122 . 308. Id . at ¶¶ 137 and 148.


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Frank Emmert, Chandler Piché Carney. The European Union Charter of Fundamental Rights vs. The Council of Europe Convention On Human Rights And Fundamental Freedoms – A Comparison, Fordham International Law Journal, 2017,