The EU's accession to the European Convention on Human Rights (ECHR): EU fails proper coordination in the Council of Europe

It is rare that public EU documents actually give an insight into failures at diplomatic or bureaucratic level, and so the publishing of this Council document regarding the negotiations of the EU accession to the European Convention on Human Rights (ECHR) is one of the few valuable exceptions.

The document makes clear that while the EU Council in Brussels has been deciding upon a negotiation mandate for the EU Commission regarding the EU accession to the European Convention on Human Rights (for the background see all posts on this blog under the label "ECHR"), co-ordination outside Brussels seems to be bad.

The EU member states' experts of a major Council of Europe* steering committee (similar to a Working Party in the EU Council), the CDDH, seemed to be so poorly co-ordinated that some of them, if I read the above-mentioned document correctly, voiced positions in a committee meeting that were even against the EU negotiation mandate:

"[I]t should be noted that individual delegates of EU Member States at the CDDH meeting openly questioned in statements in particular the following negotiating directives (to be noted that the Ministers had adopted them 12 days before the meeting of the CDDH):

a) The principle contained in 1 e) – that the Union should be allowed to participate in the ECtHR as well as other Council of Europe bodies to the extent that their activities are linked to the purpose of the ECtHR on an equal footing.

b) Directive 6 that the EU should have its own judge with the same status and duties of the other Contracting Parties.

c) That an appropriate number of members of the EP should be allowed to participate in sessions of the Parliamentary Assembly of the CoE when the latter exercises functions related to the application of the Convention (especially elections) (directive 7).

d) That the Union should be allowed to participate in meetings of the Committee of Ministers and to vote when the latter exercises its role in relation to the Convention (directive 8).

e) The necessity of having a co-respondent mechanism (directive 10 b).

Funny enough, this document thereby also reveals more details about the negotiation mandate that is kept secret by the EU.

And, when you read the rest of the text, you can also see that the Spanish EU Council presidency who has issued the document doesn't seem to understand the kind of special structure that is supposed to be created within the Council of Europe to sort out the legal questions linked to the EU's accession to the ECHR, which shows that the Presidency was unable to build or maintain proper information relations to its own national experts who are sitting in the respective committee in the Council of Europe.

In short, this special structure will be an informal sub-committee of the CDDH steering committee with 14 members, 7 from the EU and 7 from other Council of Europe member states plus someone from the EU Commission. Some more details are explained in paragraph 11 of this meeting document of the Bureau of the CDDH and the composition of the group is mentioned in the EU Council document.

For the Spanish presidency it seems to be unclear how this special committee will function in practice. I wonder why they only realise this now as the CDDH bureau meeting document is already from 7 April 2010, and the composition and tasks of the group are clearly mentioned in there. Spain should have had enough time to figure everything out - but apparently they are not able to manage this properly.

Now I suppose that for many of you this will have sounded like Chinese, but I assure you that if we knew more stuff of this kind through public documents we would actually understand why the EU and international organisations are often unable to deliver good results:

They have become so complex that a proper co-ordination is almost impossible - and let's not even speak about democratic control!

* Note: the Council of Europe is based in Strasbourg and is not part of the EU system but is the 47 member states strong international organisation built around the European Convention on Human Rights

The EU's accession to the European Convention on Human Rights (ECHR): Council refuses access to documents

According to a comment on one of my previous articles, the Council has refused to give access to the draft negotiation directive regarding the EU's accession to the European Convention on Human Rights (ECHR).

The EU's accession to the European Convention on Human Rights: Details on draft negotiation directive published

I've criticised the lack of publicness of the negotiation process of the EU's accession to the European Convention on Human Rights and this critique remains valid..

But there seems to be some advances in the transparency of the process, after the recent partial declassification of the explanatory memorandum on the draft accession negotiation directive.

Today, two very conclusive documents discussing aspects of the draft negotiation directive have been made public, namely the different option concerning paragraph 10 of the draft directive regarding the co-respondent mechanism and concerning paragraph 11 on the involvement of ECJ regarding the compatibility of legal acts of the Union with fundamental rights.

Having given a quick glance at the two documents I can say that they are a very interesting read, in particular because they contain changes to their previous, non-public versions (documents DS 1355 & DS 1356).

I'll go through them when I have some time, but maybe some of you are quicker than me...

Protocol 14 to the European Convention on Human Rights entered into force today

The long history of Protocol 14 to the ECHR has come to an end today.

The Protocol that amends the European Convention of Human Rights (ECHR) has taken a long way until its ratification - see some of my posts on the topic here, here, here or here.

With the entry into force of the Protocol, the work of the European Court of Human Rights (not to be confused with the EU Court!), which is overloaded with cases, will be reformed so that inter alia admissibility checks can be done more easily, speeding up the judicial process and freeing resources for those cases that are actually admissible.

Protocol 14 is also important for the EU, because it allows the accession of our Union to the human rights convention and the jurisdiction of the human rights court. I've covered the respective EU procedure in several posts.

In this sense, today is a good day for human rights in Europe and hopefully also for both the European Court of Human Rights and the European Union.

The EU's accession to the European Convention on Human Rights: Draft Council Conclusions (2)

As discussed before, the Draft Council Conclusions regarding the EU's accession to the European Convention on Human Rights (ECHR) are kept hidden from the eyes of the public. The latest (confidential) draft version as discussed by the Council has just been "published" yesterday.

Now there is a partially declassified Commission Secretariat document that contains parts of the explanatory memorandum for the draft negotiation guidelines.

Nevertheless, the most important points are still kept classified.

The EU's accession to the European Convention on Human Rights: European Parliament resolution

Last week, the European Parliament has voted on a resolution regarding the EU's accession to the European Convention on Human Rights (ECHR).

The resolution is horrible to read (Rapporteur: Ramón Jáuregiu Atondo) and although I'm pretty interested in the subject it was no pleasure to go through the document. I will thus focus on the more practical, cooperation-related elements of the resolution.

Three paragraphs seem to be most important regarding the political interaction of the EU and the Council of Europe (paragraphs 7, 31 & 34) as a result of the EU's accession to the ECHR. The three paragraphs portray how the European Parliament sees the participation of the European Union in the working structures of the Council of Europe.

You'll find the three below; I've added links where helpful.

Let's start with para 7:

Stresses that accession to the ECHR does not make the Union a member of the Council of Europe but that a degree of participation by the Union in the ECHR bodies is necessary in order to ensure proper integration of the Union into the ECHR system and that, therefore, the Union should have certain rights in this domain, particularly:

• the right to submit a list of three candidates for the post of judge, one of whom is elected by the Parliamentary Assembly of the Council of Europe on behalf of the Union and participates in the work of the Court on a footing of equality with the other judges, pursuant to Article 27(2) of the ECHR; the European Parliament being involved either in drawing up the list of candidates in line with a procedure similar to that provided for in Article 255 of the Treaty on the Functioning of the European Union for candidates for the position of judge at the Court of Justice of the European Union, 

• the right to attend via the European Commission, with voting rights on behalf of the EU, meetings of the Committee of Ministers when it performs its task of monitoring the execution of judgments given by the European Court of Human Rights or when it decides on the desirability of seeking an opinion from the Court and the right to be represented on the Steering Committee for Human Rights (a subsidiary body of the Committee of Ministers), 

• the right of the European Parliament to appoint/send a certain number of representatives to the Parliamentary Assembly of the Council of Europe when the latter elects judges to the European Court of Human Rights;

This is para 31:

Calls, further, for the Union to accede to Council of Europe bodies such as the Committee on the Prevention of Torture (CPT), the European Commission against Racism and Intolerance (ECRI) and the European Commission on the Efficiency of Justice (CEPEJ); stresses also the need for the Union to be involved in the work of the Commissioner for Human Rights, the European Committee of Social Rights (ECSR), the Governmental Social Committee and the European Committee on Migration, and asks to be duly informed of the conclusions and decisions of these bodies;

And this is para 34:

Stresses that it is important to have an informal body in order to coordinate information sharing between the European Parliament and the Parliamentary Assembly of the Council of Europe;

Apart from these interinstitutional arrangements between the political bodies, it is also worth (and probably more important) considering the legal implications of the EU's accession to the ECHR, but I don't feel like extracting the view of the EP from the resolution.

Maybe someone with a deeper interest or knowledge of the interrelation of international courts and the interaction of different supranational legal regimes may want to take on that task. I'll be glad to link.

What remains unclear politically is how close the non-public draft Council Conclusions regarding the Commission mandate to negotiate the accession are to the European Parliament resolution and what would happen in case that there are contradiction between the two documents.

There is no answer to that question in the EP's resolution. Which is in purpose, I suppose.

PS.: More articles on the accession process in this blog can be found under the label "ECHR".

The EU's accession to the European Convention on Human Rights: Draft Council Decision

Well, I'd like to report the details of the

Draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)

but the Council has decided that this draft is not for the public, although the EU's accession to the ECHR is of constitutional importance for the Union (since it is prescribed by the EU Treaties) and although it is highly relevant for every EU citizen (since the ECHR guarantees individual rights and allows individual complaints).

But apparently the public is not supposed to know what the Council plans to decide and it prefers to discuss the rights of EU citizens behind closed doors.

New blog on the European Court of Human Rights

There is a new euroblog out there: Strasbourg Observers.

It is written by legal academics from the faculty of law in Ghent who want to cover the jurisprudence of the European Court of Human Rights (ECtHR).

The Strasbourg court adjudicates for (almost) all European citizens - not just citizens of EU member states - and will be responsible to watch EU legislation as soon as the EU has joined the European Convention on Human Rights (see my coverage on the EU's ECHR accession process).

Welcome to the Strasbourg Observers!

(via ECHR Blog)

The EU's accession to the European Convention on Human Rights: In the parliament

http://www.flickr.com/photos/frenchy/ / CC BY 2.0

Antoine from the ECHR Blog has assembled a number of noteworthy documents from the European Parliament and the Council of Europe on discussions about the future accession of the EU to the European Convention on Human Rights.

More on this topic on this blog under the label ECHR.

The EU's accession to the European Convention on Human Rights: State of play

Worth reading:

Today, the EU Council has published an information document from February issued by the Spanish Presidency regarding the state of discussions on the accession of the EU to the European Convention on Human Rights.

Very interesting must have been the answers to the final question whether to involve the European Parliament...

For more on this subject in my blog, see here.

EU & ECHR: A very difficult marriage

As I have predicted, the negotiations around the EU's accession to the European Convention on Human Rights (as foreseen in the Lisbon Treaty), a step that would make the Union's institutions liable to the European Court of Human Rights, are already creating controversies.

European Voice yesterday quoted Thorbjørn Jagland, the Secretary General of the Council of Europe (that is the international organisation to which the European Court of Human Rights belongs), who told that one of the issues is the unclear election procedure of an EU judge and the question how to handle a possible flood of EU-related cases. One has to know that the Court is already overloaded with cases from all over Europe (including Russia and Turkey) and probably would not be able to stand even more without a serious raise of its budget.

L'Europe de la Défense published the content of a German position paper in which the German EU delegation rejects the idea of a "co-defender" that apparently has been coming up in the Council debates in the Working Group of Justice an Home Affairs Counsellors (including an ECJ representative). I wonder what this is because there is no mentioning of a co-defender in the Lisbon Treaty. The quoted paper mentions a number of other questions like the future role of the European Court of Justice and the extend of protection that will be guaranteed through the European Court of Human Rights after the EU accession.

The time plan as reported by European Voice is also quite slow, as a negotiation mandate for the EU will only be agreed upon until June. If it needs five months just to get the mandate, we all know how long the negotiations will take...

In sum, that is exactly what I expected, and I suppose that within the Council of Europe where just 27 out of the 47 member states are EU countries the negotiations will also face a number of difficult political and legal questions, which might prolong the process ad infinity.

Protocol 14 finally ratified

According to Jaanika, the Russian upper chamber has followed the Duma approval and finally ratified Protocol 14 to the European Convention on Human Rights.

This ratification will allow the reform of the European Court of Human Rights and the accession of the EU to the European Convention of Human Rights.

Also on the issue: Le Taurillon

Russia and the ratification of Protocol 14 (Update)

Finally: The New York Times reports that Russia is going to re-enter into the ratification process of Protocol 14 to the European Convention on Human Rights (ECHR) today.

The ratification will allow the long awaited reform of the European Court of Human Rights as well as open up the legal path for the EU to accede to the ECHR, which is stipulated by the Lisbon Treaty. (Update (noon):) The Council of Europe, the mother organisation of the ECHR, welcomes this move in a freshly published press release.

I wrote about the both, the indications that this might happen as well as the EU's work regarding the legal steps to join the ECHR, which you can find under the label "ECHR".

I am glad to see these developments, because like with the ratification of the Lisbon Treaty, Protocol 14 will not solve all the problems but it will allow to look ahead - and that is already a success after such a long stalemate.

Supplement: The ECHR Blog also quotes ITAR-TASS reporting the ratification of Protocol 14 today.

Update: The ECHR Blog has updated its post with the result of the Russian Duma vote - 392 of 450 - and the European Court of Human Rights issued a statement relief, although warning that Protocol 14 will not solve all the problems related to the heavy case load of the ECtHR.

The EU's accession to the European Convention on Human Rights (ECHR): Court of Justice involvement

With the ratification of the Lisbon Treaty, the EU will join the European Convention on Human Rights.

In two earlier posts on the matter (here and here) I have described the necessary steps as well as the legal and political difficulties this accession process faces.

Bearing in mind these difficulties, COREPER is going to admit an observer of the European Court of Justice in the Council consultations ahead of this accession, as one can read in a newly published Council document:

"COREPER is invited to allow the participation- as an observer- of a delegate from the Court of Justice of the European Union, already in the current preliminary meetings held at Justice and Home Affairs Counsellors level and possibly in the meetings of the Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons, throughout the duration of the discussions on a draft recommendation for the opening of negotiations for the accession of the European Union to the European Convention on Human Rights."

I suppose that this is more than a good idea.

Press release on Protocoll 14 disappeared from the website of the Parliamentary Assembly of the Council of Europe

Two days ago I wrote about the resuming of the ratification process of Protocol 14 of the European Convention on Human Rights by Russia - but it seems that the background information that I have used is not available anymore.

My post followed the publishing of a press release of the Parliamentary Assembly of the Council of Europe (PACE) in which both the President of the PACE and the Secretary General of the Council of Europe welcomed the approval for ratification of Protocol 14 by the Russian Duma.

The press release could be found here. Now this press release has disappeared - it has been deleted.

You can see that it has been actively removed when you look at the URL:
http://assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView.asp?ID=5137&L=2

This press release with the IDs 5137 (English) and 5138 (French) is not available anymore, while the previous and following press releases with the IDs 5135/5136 and 5139/5140 are still accessible.

Does that mean that the information on the change of mind of the Russian Duma provided in the press release was wrong or that it was just non-authorised?

Update: In a new press release, this time coming directly from the Council, the Secretary General welcomes "indications" that the Duma is going to resume its ratification procedure in January.

Protocol 14 to the European Convention on Human Rights closer to ratification

I have to admit that I had serious doubts that Protocol 14 to the European Convention on Human Rights - the reform of the European Court of Human Rights - would ever enter into force, but now it seems as if a solution was near.

The reform of the overloaded European Court of Human Rights has been halted by the refusal of the Russian Duma to ratify Protocol 14, and there has been a deadlock for over three years - since Norway ratified the document as country 46 out of 47 (at the time 45 out of 46 at the time) in October 2006.

In order to reduce the case-load, an interim protocol - Protocol 14bis - had been put into place after the ministerial meeting in Madrid in May (declaration) and became active in July. Nevertheless, the future of human rights protection in the light of the non-ratification of Protocol 14 was still unclear and is supposed to be discussed at a special conference in Interlaken in 2010.

Now, according to a Council of Europe press release (UPDATE: the press release has been deleted, see my follow-up post), the Russian Duma has finally indicated its approval to the ratification of the document. This move followed a decision by the Committee of Ministers' Deputies (= the CoE's COREPER) last week, which followed a non-public letter sent by Russia in early November (see the last agenda item of the CoE-meeting from 6 November 2009), as we learn from Itar-Tass.

Council of Europe Secretary General Jagland (who is also the Nobel Peace Prize Committee Chairman) is on a visit to Russia right now, probably discussion this issue.

And despite the general urgency of the reform of the European Court of Human Rights, the ratification of Protocol 14 would also allow the EU to join the European Convention of Human Rights as I have discussed in a previous post.

I am still hesitant to applaud but since the ratification of Protocol 14 looks as close as never before in the last three years, I see a light on the horizon and I am hoping that Russia will proceed quickly with the necessary steps to ratify the Protocol.

Blogging and the legal mess before and after Lisbon: ECJ, ECtHR, and Protocol 14bis

The beauty of blogging does not lie in the superficial debates on topics of obvious urgency but in the minor but messy issues that are irrelevant to most and thus for the mainstream media (making them even less relevant for most).

Although the former is necessary in the EU case because of the obvious lack of relevant public debates, taking a look at minor issues and debating them often seems to make up the real added value of using social media to advance one's understanding of the world.

Like the following:

When I recently wrote about the foreseen accession of the EU to the European Convention on Human Rights (ECHR), I highlighted the legal provisions set by the Lisbon Treaty and the fact that I expect a long bargaining process before the EU accessing the ECHR will become reality.

I didn't write about more details, thinking that this would be enough for the moment.

Yet, a few days later, the Adjucating Europe blog raised questions on the same issue, probably almost unnoticed because this was in an article on a specific case at the European Court of Justice (ECJ):

"This accession – if done in hurry – might lead to an unprecedented mess. A mature reflection is in fact needed.

What would be the exact scope of the Strasbourg Court’s competence? I am curious to see how the Strasbourg Court will deal with increasing litigations involving EU citizens’ rights, residence rights or provisions of the EU Charter of Fundamental Rights not explicitly enshrined within the ECHR?"

More interesting than these questions is the short discussion in the comments to that post in which we learn that not only is the European Court of Justice already referring to judgements of the European Court of Human Rights (the ECtHR in Strasbourg oversees the ECHR), but that even the Strasbourg court has already been using ECJ jurisprudence for his own judgements.

Still, it is not clear to us how their relation will be in the future and how the ECtHR might even use the Charta on Fundamental Rights and Freedoms (as part of EU law) for its judgements once the EU as an institution joined the ECHR.

And then, yesterday, the ECHR blog took a look at the matter, and while at first sight it just seems to quote a press release of the Parliamentary Assembly of the Council of Europe (PACE), the post closes with a hint to the debate around the ratification of Protocol 14 to the ECHR.

This Protocol was developed to reform the overburdened ECtHR, which adjudicates on human rights in 47 countries on the whole European continent, but since Russia has signed it but refuses to ratify, it hasn't entered into force yet (which is why it has been replaced ad interim by the so-called Protocol 14bis).

Why is this relevant? Because Protocol 14 to the ECHR also adds a little sentence to the ECHR that reads: "The European Union may accede to this Convention."

What does this mean? It means that even Russia is now an integral part of the debate.

From the 1st of December, the EU, through the Lisbon Treaty, will have the right (and duty) to join the ECHR, but a Protocol that makes this possible legally on the ECHR side is not ratified by Russia that is afraid that this Protocol could make the Human Rights Court more effective and thus would show even more how ignorant Russia is when it comes to human rights.

Kind of complex matter isn't it? Any journalists writing about that mess? Would be glad to see that. But for now, it's just in the blogs.

Oh, and speaking of journalists and blogs in this matter, one could even point to other stories, like the one where the European Court of Human Rights is confused with the EU's European Court of Justice by journalists, which happens quite frequently (see these recent posts by bitmorecomplicated, The European Citizen and Jon Worth) - but that would be to much, wouldn't it?

The EU's accession to the European Convention on Human Rights (ECHR): Waiting for controversies...

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Follow-ups to this article: here, here & here.

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With the Lisbon Treaty entering into force next month, one particular issue that has been part of legal and political discussions for years will become pertinent: The EU's accession to the European Convention on Human Rights (ECHR).

All EU member states have ratified the Convention and most have also signed and ratified the additional protocols to the convention (including the protection of property rights and free elections [Protocol 1] or the prohibition of the death penalty under all circumstances).

The rights guaranteed by the ECHR are supervised by the European Court of Human Rights (ECtHR) in Strasbourg. Since through its member states the legal traditions of the ECHR are also informally part of the EU's legal traditions, the European Court of Justice (the EU's court) is already taking into account rulings of the European Court of Human Rights, but so far there is no legal obligation for the Union to follow the Human Rights Convention's provisions.

However, now that the Lisbon Treaty will enter into force, the EU is getting legal personality and is thus able to join international agreements outside the scope of the former European Community, including the ECHR.

And, for those who did not have time yet to read the Lisbon Treaty, the document explicitly foresees that the EU will join the European Convention on Human Rights (which might mean that the EU institutions will be subject to rulings of the non-EU ECtHR). It deals with this matter in Article 6 of the Treaty on European Union (TEU) and in the Article 218 of the Treaty on the Functioning of the European Union (TFEU) as well as in the Protocol 8 and the Declaration 2 to the Lisbon Treaty.

In short, these provisions foresee that the EU shall in fact join the ECHR, but only after the EU and the member states have agreed on how the EU's legal and practical relations with the different control bodies of the convention will be and after it is clear how one will differentiate between law suits against the EU and those that would go against a member state (which could become difficult when it comes to the execution of EU law in the member states).

In the end, the Council needs to decide unanimously on the accession to the ECHR, and all member states will have to agree individually according to their constitutional provisions.

Although this is now clearly prescribed by the Lisbon Treaty, this is still going to be a very difficult legal and political process, not least seeing the debates around the Charta on Fundamental Rights and Freedoms in some member states or the latest "outrage" in Italy against the Crucifix judgement by the ECtHR.

And so even though the Council of Europe - the international organisation built around the European Convention on Human Rights - is already starting to pressure on the EU start its accession procedures, this could take some time until the EU has ruled out all complex legal and practical problems related to this accession.

Therefore, I expect the process to be quite controversial already between the EU member states and EU institutions (including its legal services), but also between the EU and the Council of Europe (including the other 20 signatory states to the European Convention on Human Rights) - and the result will probably be an unprecedented case of legal interdependencies between two different supranational regimes.

The European Court of Human rights tests online application in Swedish and Dutch

Interesting experiment in Strasbourg: The European Court of Human Rights is testing an online application procedure in Swedish and Dutch.

It will be interesting to see whether this experiment will work out and whether it will be extended to other countries and languages.

This could then become human-rights-online.int

50 years of the European Court of Human Rights: A video

The European Court of Human Rights, the major human rights watchdog on the continent, is turning 50 this year, and has therefore published a documentary video in English, French, and German.