European Convention on Human Rights and national constitutions
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 25 April 2023 (11th sitting) (see Doc. 15741, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr George Katrougalos). Text
adopted by the Assembly on 25 April 2023 (11th sitting).
1. The Parliamentary Assembly recalls
that one of the aims of the Council of Europe is the achievement
of greater unity between its member States, based on common values,
including the creation of a common European space for human rights.
At times, however, there can be the perception of a conflict between
national constitutional provisions and the requirements of the European
Convention on Human Rights (ETS No. 5, the Convention). Further
potential conflicts can also exist between the Convention, national
constitutional systems and European Union law.
2. The Convention and the national constitutional order are not
antithetical but they are in fact fully complementary. The Assembly
considers that the priority in the Council of Europe should be the
reinforcement of the legal and moral authority of the Convention.
As such, it is incumbent on the instances of the Council of Europe
to seek out innovative tools to ensure the uniform application of
the Convention, while taking into account the principles of subsidiarity,
the margin of appreciation and mutual respect for national constitutional systems.
Member States enjoy a margin of appreciation in applying the Convention
standards at the national level, subject to the supervisory jurisdiction
of the European Court of Human Rights, whose task is to interpret the
Convention and ensure the observance of the commitments stemming
from it by the contracting States.
3. The Assembly considers that there is no hierarchy between
the European Court of Human Rights, the Court of Justice of the
European Union (CJEU) and national supreme or constitutional courts,
nor between the Convention, European Union law and national constitutions,
in the sense of a traditional approach to the hierarchy of norms
within a constitutional framework. Indeed, any attempt to impose
such a hierarchy would be problematic and unhelpful. However, the
Assembly considers that there does need to be a constructive dialogue
between the judicial instances and that the different jurisdictions
do need to respect and acknowledge each other’s respective roles,
competences and spheres of expertise.
4. The Assembly also considers that it is not necessary to seek
to avoid entirely potential conflicts or conflicting interpretations
between different jurisdictions; in general such conflicts, while
appearing difficult at the time, can add to the development of judicial
thinking and reasoning. Moreover, when solutions are sought following
constructive dialogue, the focus is usually on resolving the legal
issue at hand rather than on anything resembling an attack on one
system.
5. The Assembly recalls that such a system of mutual respect
and deference functions well if there is an overlapping consensus
at the three levels: the Council of Europe, the European Union and
the national level. However, this does not function when serious
tensions arise. Tensions have for example arisen in what is sometimes
referred to as the rule-of-law crisis in certain States. Some may
also arise where significant political tensions exist in seeking
to determine what is the best outcome to help citizens of a country
overcome important economic, societal or environmental challenges,
or challenges to existing power structures. These are often inherently
political issues. Due to the lack of a constitutional hierarchy
between the different sets of legal norms (national, Convention,
European Union), there is a subsequent lack of formal avenues for
handling and deciding disagreements, which in turn becomes a legal
problem.
6. Indeed, conflicts between national constitutional provisions
and the requirements of European Union law and the case law of the
CJEU have been well publicised in the past. The reasoning and approach
applied in seeking to resolve conflicts between the CJEU’s interpretation
of European Union law and European Union member States can thus
be instructive as inspiration for potential tools in resolving conflicts
at the Convention level. Moreover, conflicts could arise as a result
of the accession of the European Union to the Convention, not least
given some of the specific requirements of the European Union institutions
following Opinion 2/13 of the CJEU, and these matters will need
to be addressed as part of the ongoing work towards accession of
the European Union to the Convention.
7. The Assembly considers that a new kind of synergetic legal
order has emerged in Europe, through the European integration project,
both at the level of the European Union and the Council of Europe.
This is sometimes called multilevel constitutionalism or co-ordinate
constitutionalism. It essentially implies that there is not a strict
hierarchy among the different constitutive elements of this order
– the European Union, the Convention and national constitutions
– nor their respective (apex) courts – the CJEU, the European Court
of Human Rights and national supreme or constitutional courts. While
each of these courts can be supreme in its own legal order, their
decisions and legal orders can intersect and interact. As part of
multilevel constitutionalism, each court defers to the other’s decisions
in its sphere of competence, provided those decisions respect mutually
agreed fundamental essentials. The Assembly favours such an approach
based on complementarity and mutual respect.
8. The Assembly notes that there are many different constitutional
models, and even more ways that human rights are given effect, in
practice, within member States. This is not a problem. Different
models (both monist and dualist) can be successful in giving effect
to human rights obligations. Within the Council of Europe, we have
many different constitutional models and approaches. The Assembly
encourages steps towards increased mutual understanding of, and
mutual respect between, these different constitutional models, noting that
when dealing with matters of a constitutional nature, many different
factors need to be borne in mind in understanding the institutional,
cultural, legal and historical context of a given system.
9. The Assembly considers that it is important to find ways to
ensure that national and supranational instances can effectively
collaborate and communicate, rather than to seek a single, uniform
solution to complex constitutional issues. However, the Assembly
notes that this does not mean that the Council of Europe should
accept that national constitutional courts defend departures from
the human rights standards required by the Convention, as interpreted
by the European Court of Human Rights.
10. The Assembly underlines the clear and unambiguous nature of
the obligation on member States to comply with final binding judgments
of the European Court of Human Rights under Article 46, paragraph
1, of the Convention and underlines that domestic legal or constitutional
issues are not a valid excuse for a failure to comply with such
judgments. The Assembly calls on national governments, parliaments
and courts to approach such matters in a constructive fashion in
order to find timely, practical solutions to any potential legal differences.
11. The Assembly recalls that, in general, tensions tend to relate
more to the interpretation and application of Convention rights
by the European Court of Human Rights and by national courts in
a given case, rather than to disagreements about the rights enshrined
in the Convention as such. The Assembly suggests that national constitutional
and supreme courts should seek, where possible, to align their human
rights analysis as closely as possible with the analytical approach
taken by the European Court of Human Rights. Such an approach can
be a useful tool in ensuring a consistent approach between the jurisdictions
and in avoiding unnecessary conflicts. The Assembly considers that
an approach by domestic courts that seeks, as far as is possible,
to harmonise conflicting provisions through interpretation is to
be preferred over any strict hierarchy of norms that seeks to disapply
either domestic law or the Convention.
12. The Assembly considers that more might be done to improve
the knowledge and familiarity of domestic judges with the case law
of the European Court of Human Rights, and to improve the extent
to which domestic judges – and in particular those of superior jurisdictions
– actively engage with the case law of the European Court of Human
Rights when interpreting and applying Convention rights in the national
context. Not only would that improve the uniform application of
Convention rights throughout the Council of Europe area, but it
would also ensure that the correct legal considerations are being
taken into account by domestic courts, with their deeper understanding
of the factual, legal, cultural and contextual circumstances in
their State. This is important because the European Court of Human
Rights’ reasoning often needs to be applied in a highly contextualised
way to the particular circumstances of the domestic legal order.
Moreover, such an approach would serve to improve the level of judicial
dialogue and therefore the quality of judgments of both the European
Court of Human Rights and of national courts, while ensuring that
such exchanges are based on mutual respect. In this light, the Assembly
recalls the usefulness of provisions such as those contained in section
2 of the British Human Rights Act, which requires courts to “take
into account” the case law of the European Court of Human Rights
that is relevant to the matter before them. Such an approach can
assist domestic courts in resolving human rights matters effectively
and swiftly at the national level, with the correct application
of the European Court of Human Rights’ reasoning, and thus requiring
less recourse to the supervisory jurisdiction of the European Court
of Human Rights. Such an approach makes it easier for the European
Court of Human Rights to be satisfied that the correct legal analysis
is being followed by the national courts, thus assisting the European
Court of Human Rights in its margin of appreciation analysis. It
can also lead to improved judicial dialogue between the domestic
courts and the European Court of Human Rights and thus can help
to avoid potential conflicts between them.
13. The Assembly reiterates the importance of mutual respect between
the various judicial instances, and the importance of judicial dialogue
in continuously improving the quality of judicial reasoning and
in ensuring constructive solutions to any potential conflicts between
jurisdictions. In this context, the Assembly notes the importance
of both formal judicial dialogue, in the form of judgments by the
respective courts, and informal judicial dialogue to improve mutual
understanding and respect.
14. The Assembly recalls in particular the positive developments
with the establishment and functioning of the Superior Courts Network
as a unique forum for dialogue and knowledge sharing on Convention
case law and comparative law, and it welcomes further reflection
from superior national courts and the European Court of Human Rights
on how to make the best use of this network. The Assembly encourages
the development of training activities (conferences, webinars, study
visits and secondments) to ensure improved mutual understanding
between the European Court of Human Rights and national superior
courts, so that the respective courts are able to understand the
context and perspective of each others’ judgments and to find the appropriate
accommodations to align judicial understanding. It welcomes the
recent opening of the Superior Courts Network to the CJEU and regional
human rights courts as observer courts and encourages further developments
in this regard.
15. The Assembly welcomes the system of advisory opinions of the
European Court of Human Rights envisaged under Protocol No. 16 to
the Convention (CETS No. 214) as a useful tool in resolving potential conflicts
between the highest national courts and the European Court of Human
Rights, and in improving judicial dialogue. It regrets however that
only 19 member States have ratified the protocol and that only seven requests
for advisory opinion have so far been submitted by national courts.
16. The Assembly recalls the useful role that is played by the
European Commission for Democracy through Law (Venice Commission)
in resolving potential conflicts, especially those relating to constitutional
law or provisions of a constitutional nature. The Assembly recognises
the expertise of the Venice Commission in relation to constitutional
issues, including the composition of courts and the election of
judges, and calls on all actors to make the best use of the opinions
of the Venice Commission in approaching such complex issues.
17. The Assembly is aware of the ongoing work towards the accession
of the European Union to the Convention and, in the context of that
work, would like to stress the importance of mutual respect and
dialogue between the European Court of Human Rights and the CJEU.
It notes that matters of interpretation of the Convention rights
must, in the end, be determined by the European Court of Human Rights,
whereas the CJEU has the final word on the interpretation of European
Union law.
18. The Assembly calls on Council of Europe member States to:
18.1 abide by, and take all necessary
steps to implement swiftly, the final judgments of the European Court
of Human Rights, in line with the clear unconditional obligation
under Article 46, paragraph 1, of the Convention;
18.2 comply with any interim measures issued by the European
Court of Human Rights, in accordance with the obligations stemming
from Article 34 of the Convention;
18.3 refrain from taking any steps which could exacerbate any
potential conflict between the national constitutional order and
the European Court of Human Rights;
18.4 develop mechanisms designed to encourage mutual understanding,
mutual respect and judicial dialogue between national and European
courts, in particular in relation to constitutional provisions, while
emphasising that such systems should be designed to assist in developing
judicial thinking and reasoning, following constructive dialogue
focused on resolving specific legal issues, rather than creating
the impression of an attack on the legal system in question as a
whole;
18.5 consider developing improved mechanisms to ensure that
domestic courts appropriately engage with the case law of the European
Court of Human Rights, thus ensuring that the correct legal considerations
are being applied by domestic courts, with the benefit of their
deeper understanding of the factual, legal, cultural and other contextual
circumstances in relation to that State;
18.6 work with the Council of Europe on embedding the application
of the Convention in national judicial practices, including co-operation
with the Organisation on developing and implementing new tools for
integrating Convention knowledge within national judicial practices;
18.7 ratify Protocol No. 16 to the Convention, as soon as possible,
as a useful tool in resolving potential conflicts between national
courts and the European Court of Human Rights, and in improving the
quality of judicial dialogue, and if they have already done so,
make the best use of this tool;
18.8 support judicial dialogue and knowledge sharing on Convention
issues through the Superior Courts Network and other existing tools,
including by making voluntary contributions to the relevant Council
of Europe programmes aimed at strengthening the Superior Courts
Network and making the European Court of Human Rights’ knowledge-sharing
platform available in non-official languages;
18.9 make the best use of the expertise of the Venice Commission,
especially in constitutional matters, in order to seek to pre-empt
potential difficulties or to find constructive solutions to potential
problems.
