By Felix Boos. Originally published on Apr 10th, 2012

Since Fidesz takeover of Hun­gary in April 2010, Hun­garian insti­tu­tions have changed a great deal. The new con­sti­tu­tion puts the demo­cratic prin­ciple at risk accord­ing to the Coun­cil of Europe. Dra­conian media laws that accom­pany the new con­sti­tu­tion curb media freedoms. But people in Hun­gary lack an adequate pro­tec­tion of their human rights since the the Con­sti­tu­tional Court has been trans­formed into a farce. What can be done about that?

What has been done

The Com­mis­sion Bar­roso has installed a task force. But writ­ing let­ters to Orban and beg­ging for com­pli­ance to EU law, has not had much impact. Even as checks and bal­ances in Hun­gary have been removed, the Com­mis­sion has not been able to install itself as a guard­ian of human rights and the rule of law.

What has not been done

Since Lis­bon, Art­icle 7 of the Treaty of the European Union provides for a meas­ure to be taken by the European Coun­cil. If the rule of law and human rights are in severe danger, a coun­try can be denied its vot­ing rights in the Coun­cil. Since lead­ers of the states are reluct­ant to blame each other, it’s politi­cized and thus inef­fect­ive as a means to safe­guard human rights.

What could be done

So, a polit­ical solu­tion of the Fidesz path to author­it­ari­an­ism will neither be found by Art­icle 7 nor by the Com­mis­sion. A polit­ical solu­tion might be brought by new a new polit­ical lead­er­ship in Hun­gary. Strik­ingly, the form­a­tion of a new polit­ical lead­er­ship in Hun­gary is hampered by the same Fidesz policies that put human rights and demo­cracy in Hun­gary at risk.

So, it must be up for another European insti­tu­tion to estab­lish the rule of law for the opposition’s sake and allow a free polit­ical dis­course which can­not sur­vive without effect­ively enforce­able human and civil rights, espe­cially the media freedoms. And this is the point where an innov­at­ive pro­posal by a research team which is headed by Armin von BOGDANDY comes in. Armin von BOGDANDY is an expert on European and inter­na­tional law and a Dir­ector of the Heidelberg-based Max Planck Insti­tute of Com­par­at­ive Pub­lic Law and Inter­na­tional Law. While his approach seeks to secure human rights by the European Court of Justice on a gen­eral level, it leaves the fore­most respons­ib­il­ity of human rights pro­tec­tion to the hands of each mem­ber state. Only, if a mem­ber state fails on sys­tem­atic and gen­eral basis to pro­tect human rights, the Court of Justice and national courts step in on the basis of the European Charter of Fun­da­mental Rights through pre­lim­in­ary rul­ing procedure

His pro­posal, unveiled at Verfassungsblog.de,1 would work as fol­lows. Out­side the scope of the European Charter of Fun­da­mental Rights which nor­mally applies to mem­ber states only, when they imple­ment law, a European Union cit­izen can­not call on EU fun­da­mental rights as long as the mem­ber state can uphold the pre­sump­tion that the essence of human rights and other core val­ues as laid out in Art­icle 2 of the Treaty is safe­guarded. How­ever, if this pre­sump­tion is dis­proved, the European Union cit­izen­ship comes into play. Based on this, European Union cit­izens can seek redress before national courts and the Court of Justice.

So what?

But isn’t there already the Coun­cil of Europe with its Court on Human Rights main­tain­ing a com­mon human rights stand­ard? Well, yes. But Europe relies on sub­si­di­ar­ity, thus pro­tect­ing human rights has to be done by mem­ber states. Only, if those fail sys­tem­at­ic­ally the Court of Justice is going to take the lead. Fur­ther, it would ease the already over­loaded European Court of Human Rights in Strasbourg.

But why does von Bog­dandy limit the scope of his approach only if the pre­sump­tion of mem­ber states’ com­pli­ance to human rights has been gen­er­ally rebutted?

First, it’s well groun­ded in the Courts’ jur­is­pru­dence and would embody a fur­ther development.

Secondly, it pre­vents the EU from unpur­posely cent­ral­iz­ing. Past exper­i­ences in the US or in other fed­eral states show that a com­pre­hens­ive bill of rights on a national leads to cent­ral­iz­a­tion. This is due to the polit­ical nature of human rights and their impact on policies. And equal pro­tec­tion must lead to more or less equal policies among the states.

It’s the Court, stupid

This pro­posal can be adop­ted by the Court imme­di­ately. Accord­ing to von BOGDANDY, it’s based on the Lis­bon treaty. National legis­la­tion or con­sti­tu­tions remain unchanged as long as they uphold the pre­sump­tion of com­pli­ance to Charter of Fun­da­mental Rights.

It will strengthen EU’s legit­im­acy in times when people across the Europe are frightened by a EU which seems to be in a set­back towards the tech­no­cratic and basic­ally undemo­cratic organ­iz­a­tion it used to be in its infancy. Because the day-to-day EU gov­ernance is based on trust between states and people, this trust can only be uphold, if a com­mon stand­ard of human rights and the rule of law is upheld.

It might seem weird call­ing on judges in these times. But the EU Court of Justice is often under­es­tim­ated in its influ­ence on European integ­ra­tion. Con­sider Van Gend en Loos (1963) that del­cared the pos­sib­lity of dir­ect effect of EU law, the first step towards fed­er­al­ism and away from clas­sical inter­na­tional law. OrCosta v ENEL (1964) that incor­por­ated EU law into domestic legal sys­tems and pion­eered the doc­trine of primacy of EU law over domestic legal systems.

By assert­ing the Court of Justice’s author­ity to safe­guard core European val­ues, human rights and the rule of law, the EU cit­izen­ship will become a pre­cious idea, thus maybe giv­ing birth to a European iden­tity. Still, the Court will exer­cise this jur­is­dic­tion only in cases like Hun­gary. And after the EU join­ing the European Con­ven­tion of Human Rights, the Court will sub­mit his rul­ings to Strasbourg.

When people like the Apostle Paulus were per­se­cuted in ancient Rome, they claimed “Civis Romanus sum!” (Im a Roman cit­izen!) to invoke their far more super­ior rights com­par­ing to for­eign­ers before Roman author­it­ies. In 1963, John F. Kennedy para­phrased this as “Ich bin ein Ber­liner!” (I’m a Ber­liner!) for the free world. In times when Fidesz doesn’t care about human rights and Sarkozy has evicted Roma, wouldn’t it be wise to invoke “Civis Euro­paeus sum!” before the the Court of Justice when national gov­ern­ments fail to pro­tect human rights?

But this might be an obstacle of the von Bog­dandy approach: By link­ing EU cit­izen­ship and the Court’s new role of safe­guard­ing fun­da­mental rights, don’t we for­get that there a bunch of non-EU cit­izens? I’m not sure whether he has adressed this issue, but human rights are for human-beings, not just for citizens.

Advertisements