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„To Luxembourg instead of Strasbourg?” A report on the role of the Court of Justice of the European Union in the protection of human rights

The Helsinki Foundation for Human Rights has published the report  „To Luxembourg instead of to Strasbourg?” by dr. Piotr Kładoczny, Marcin Szwed and Katarzyna Wiśniewska, in which the EU system of protection of individual rights is discussed.

The publication presents many judgments of the CJEU of recent years, that concern matters relevant to freedom and human rights, including freedom of religion, the right to protection of family life, protection of dignity, property rights, the prohibition of double criminality, the right to court, rights of defendants, the right to privacy, the protection of personal data, the prohibition of discrimination.

International law can provide individuals with effective protection. So far, the most important role in this respect has been played by the system of the Council of Europe, with the European Court of Human Rights at the head, which, however, is not free from defects. This is why it is justified to look for alternative mechanisms to protect human rights.

The report presents the results of surveys conducted among judges, lawyers, legal advisors and lawyers of non-governmental organizations from Poland and other EU countries. Their aim was to present the previous experiences of various professional groups in dealing with the basic legal instruments of EU. Authors focused on procedure for asking preliminary questions and the use of the Charter of Fundamental Rights in proceedings conducted at the national level.

 Summary of the report:

The current trends in Europe that affect the status and methods of human rights protection

  • Human rights have been losing their public appeal for some time. Arguably, this began symbolically on 11 September 2001
  • There has been a significant decline in support for the notion of human rights protection across European societies. It is claimed these rights can be “sacrificed” for the sake of security (including social security).
  • A legal system based on the foundations of human rights and courts that, inevitably, represent and guarantee the existing legal order remains the cornerstone of the vision of democracy.
  • The rulings of European Courts in which state bodies are found to have violated human rights or freedoms have a greater impact than the rulings of national courts and are capable of mobilising a democratic society to defend these values.

European Court of Human Rights – current challenges

  • In any case, according to the statistics for the end of 2017, more than 50,000 applications, of which nearly 24,000 come from EU countries, are still awaiting to be heard by the ECtHR.
  • The position of the CJEU vis-à-vis the ECtHR has been strengthened by the long-standing crisis affecting the Strasbourg Court, which at some point became a “victim of its own success”.
  • The lack of an effective mechanism to ensure states’ implementation of ECtHR judgments at a systemic level is another shortcoming of the Strasbourg system.
  • It is increasingly easier to relativise the significance of the ECtHR’s judgments against Poland by referring to the human rights situation in countries which no longer are perceived to be democratic and respect human rights (e.g. Russia, Turkey), which are also covered by the Court’s jurisdiction.

Relationships between European Courts

  • The CJEU emphasises that the Union is not formally bound by the ECHR, but refers on several occasions to the case law of the ECtHR when interpreting the provisions of the Charter.
  • The ECtHR also refers in many of its judgments to the case law of the CJEU.

The statistics of the preliminary ruling procedure

  • Rulings given in response to requests for a preliminary ruling from national courts account for by far the largest part of the CJEU’s case-law (approx. 65%)
  • The number of questions referred to the CJEU for a preliminary ruling has been steadily increasing (from 428 in 2014 to 533 in 2017, for example).
  • The greatest number of preliminary ruling proceedings are initiated by German courts, while the lowest number of such proceedings are brought by Maltese and Cypriot courts
  • In total, from the date of Poland’s accession to the EU until the end of 2017, Polish courts submitted 127 references for a preliminary ruling to the CJEU.

Preliminary references and the Charter of Fundamental Rights

  • The Charter of Fundamental Rights was invoked in the operative part of 22 CJEU preliminary rulings in 2017. In previous years, the number of such invocations was lower (17 in 2016, 11 in 2015 and 17 in 2014).
  • The Charter was invoked 50 times in requests for a preliminary ruling submitted in 2017, a result similar to that of 2016 (48 times). Courts from Italy (10), Germany (8), Austria (6) and the Netherlands (5) submitted the majority of questions concerning the Charter.
  • Article 47, which provides for the right to an effective remedy and to a fair trial, is the most frequently cited provision of the Charter of Fundamental Rights in the operative part of CJEU preliminary rulings. This provision was also most frequently cited in new requests for a preliminary ruling (19 times).

Surveys – the preliminary ruling procedure

  • The vast majority of attorneys acknowledge that the preliminary ruling procedure can be an effective mechanism for the protection of human rights.
  • The human rights protection potential of the preliminary ruling procedure was positively assessed by 95% of the surveyed Polish attorneys and 85% of lawyers from other EU countries.
  • The main reasons Polish judges cite for their reluctance to refer questions for a preliminary ruling to the CJEU in their practice so far are: the absence of a request from a party to the proceedings, the absence of a need to do so in cases before them, the lack of an EU element, and difficulties in formulating a question.
  • However, 74% of the Polish judges who took part in the survey thought that national courts might use the institution more frequently in the near future.
  • Also, lawyers practising in both Poland and Europe have noted that the CJEU may play an increasingly important role in many types of cases and that the CJEU may contribute to the strengthening of the protection of fundamental rights and freedoms in practice. In their view, particular attention should be paid to cases concerning migration law and policy, criminal law and cases of discrimination.

The report  „To Luxembourg instead of Strasbourg?” by HFHR lawyers – Dr. Piotr Kładoczny, Marcin Szwed and Katarzyna Wiśniewska was created as part of the project „Not only Strasbourg? Alternative international instruments for the protection of human rights” made by the HFHR thanks to the financial support of the Clifford Chance Foundation.

The report is available here.


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