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.
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.