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European Union’s accession to the European Convention on Human Rights

European Parliament ‘s Committee on Constitutional Affairs held last week a hearing on the institutional aspects of the European Union’s accession to the European Convention on Human Rights. A topical intervention was made by Mr Holovaty, of  the Committee on Legal Affairs and Human Rights of the Council of Europe Parliamentary Assembly’s Sub-Committee on Human Rights. He argues that the EU should accede to the European Convention on Human Rights »within a couple of years«. Some of the most important paragraphs from his intervention are reproduced below:

For me, the situation is not as complicated as it looks at first sight. In a large measure, this relationship must be perceived as a function undertaken by a specialized human rights court whose role is to exercise external control over the international law obligations of the Union that result from accession to the ECHR. Hence, accession does not threaten the jurisdictional autonomy of the Luxembourg Court. Upon accession, the European Union becomes the 48th “Contracting Party” to the Convention. The Luxembourg Court is then considered by the European Court of Human Rights as a “domestic court”, akin to a constitutional or supreme court of any other (States) Party to the Convention. In other words, the ECHR is an instrument of subsidiary protection and the EU institutions, upon accession, will continue to bear primary responsibility in ensuring respect of rights enshrined in the European Convention. It follows that, in a situation in which the EU Charter of Fundamental Rights becomes, de facto, an internal ‘Bill of Rights’ which sets limitations on the Union’s institutions’ powers, the ECHR mechanism must be perceived as an external restraint and check on EU activities. Hence, primary responsibility for ensuring respect of human rights within the EU’s (autonomous) legal system remains with the Luxembourg Court. The Strasbourg Court is in no sense a higher court than, for instance, Germany’s Federal Constitutional Court. The issue is not one of subordination or primacy of courts. The Strasbourg Court must simply ensure “minimum common standards” guaranteed by the European Convention and its protocols.
That said, the artificiality of the present situation must be put right. At present a potential victim, after exhausting domestic and EU remedies, must lodge an application with the Strasbourg Court, not against the perpetrator of the contested EU act, but against one or more EU member states. And if a breach of the Convention is found, there is no guarantee that the victim’s situation will be remedied, as the remedy depends on a third party, the European Union. This is why accession is necessary.
It is important for us parliamentarians not to get bogged-down in the details. Our role is to provide a powerful signal for the need to start negotiations in earnest. To maintain the momentum, we should insist that negotiations already commence in July. We are dealing with the accession of a non-State Party, the European Union, to a treaty which was designed for member States of the Council of Europe. All 47 (States) Parties have a collective responsibility under the Convention system and must be included in the accession process. Let the experts decide whether there is a need for a new amending protocol to the Convention or if most issues can be dealt with in an accession treaty, or if both will be necessary. And, in order to ensure a rapid entry into force of, for instance, an accession treaty, consideration ought be given to the provisional application of the text (as envisaged in Article 25 of the 1969 Vienna Convention on the Law of Treaties) and/or use be made of an “opting out” clause to ensure entry into force within a short time-frame, unless a Party to the agreement were to object (opt-out).

Also, EU accession to the ECHR implies accession to the Convention system. As is rightly indicated in paragraph 5 of the text, certain Council of Europe bodies are associated with the Convention: the Strasbourg Court (which ensures respect for the Convention), the Parliamentary Assembly (which elects judges onto the Court) and the Committee of Ministers (which supervises the execution of the Court’s judgments). EU accession implies the need for certain institutional arrangements to be worked out with respect to these matters.

Another intervention was made by prof. Oliver de Schutter. You can read his contribution in French here.

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