Should national courts offer more extensive protection of fundamental rights than the European Court of Human Rights?

| EUdentity 2019

with Nincs hozzászólás
Mr. Maarten Feteris
President of the Supreme Court of the Netherlands

It is an honour for me to speak at this conference, where experts and especially judges from various European countries exchange their views and experiences on constitutional questions. I will speak to you about common fundamental values and how they relate to national preferences, which may differ from country to country. We have quite some constitutional differences between European countries, so there is food for exchange. But we also have many things in common, fundamental values which are widely accepted throughout Europe, and thus form a hard core. Hard core is not only an academic qualification. These common values have been laid down in legal instruments with binding force. I mention the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. These instruments provide firm ground, the rights laid down therein must be observed by all the states concerned. These rights guarantee a minimum level of protection to citizens against state interference. Consequently, the space for diversity between European states below that level is limited. Which was the intention from the beginning: according to its preamble the Human Rights Convention was concluded to achieve greater unity in the maintenance and further realisation of human rights. The possibilities for diversity are further limited because we have two European Courts whose tasks include a binding interpretation of these fundamental rights which is uniform, at least to a certain degree.

I say to a certain degree, because the existence of shared fundamental values does not imply that we have a completely unified constitution in Europe. In various respects the individual states have freedom to develop their own structures and concepts, in which they have a margin of appreciation. Whether such a margin exists depends on the fundamental right in question, and on the room for exceptions formulated in the relevant international rule. A state can for instance never justify torturing people by invoking its margin of appreciation. This margin is very limited when the right to a fair trial is concerned, or for instance gender discrimination. When we are dealing with a fundamental right which does leave a margin of appreciation to the states, for instance by accepting exceptions in the general interest, the extent of that margin will depend on the subject matter. In fiscal matters, for instance, the margin of appreciation for the contracting States under the European Convention is generally very wide. There are other relevant factors. In fields where a margin of appreciation may in principle exist, it can be limited where a common international approach exists or is developing. Such a common ground may, more generally, be an important factor when interpreting and applying fundamental rights in Europe.[1] In addition, according to the Treaty on European Union (Article 6), constitutional traditions common to the member states have legal force as general principles of the Union’s law. Common does not mean that absolute unanimity is required between the states concerned. Therefore, consensus in the majority of the relevant European countries may limit the room for states that prefer a different approach[2], for instance because they have a different view on acceptable criminal sanctions[3], a different religious tradition or different family values.

Defining the scope of fundamental rights in this perspective is often difficult. But it is obvious that the legislators of individual European states are not free to decide whether an issue falls inside or outside the hard core of fundamental rights where their margin of appreciation is limited or non-existent. Leaving such a freedom to individual states would in fact mean that the hard core becomes as hard as the state concerned is willing to accept, and therefore becomes soft.

Ön itt egy előadásrészletet talál, ami a 2019. március 8-án, Constitutional EUdentity 2019 címmel megrendezett konferencián
hangzott el. A teljes előadás szövegét az Alkotmánybírósági Szemle 2020. évi különszámában nyomtatott változatában olvashatja el. Előfizetni a folyóiratra itt tud.

[1] ECtHR 12 November 2008, Demir and Baykara, par. 86: referring to “ a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe” which “show, in a precise area, that there is common ground in modern societies (…)”. See also ECtHR 28 November 1984, Rasmussen, par. 40, and ECtHR 22 March 2012, Markin, par. 140.

[2] ECtHR 13 June 1979, Marckx, par. 41 “ the domestic law of the great majority of the member States of the Council of Europe has evolved and is continuing to evolve”. ECtHR 26 April 1979, Sunday Times, par. 59, based its interpretation on “a fairly substantial measure of common ground in this area.”

[3] See ECtHR 25 April 1978, Tyrer, nr. 5856/72, about judicial corporal punishment.