April has been an important month for human rights law in Europe. Two events have taken place rather discretely, but with a momentous impact on the future of human rights protection in many European countries. The development is technical, very technical. But the consequences can be revolutionary for citizens, courts and lawyers working in this field.
Last week, France was the tenth signatory country to ratify Protocol 16 to the European Convention of Human Rights (ECHR). This obscure piece of news hardly found any echoes in the press or in the academic community. However, its consequences are far-reaching and, as of 1 August 2018, national supreme courts of the ratifying States (only ten so far) will be able to request advisory opinions from the European Court of Human Rights on the interpretation and application of the ECHR.
Early this month, Directive 2016/343 on presumption of innocence in criminal proceedings came fully into force, once the time-limit for incorporation into national law expired. This is an extraordinary piece of legislation that introduces what could be termed as a mini-code of human rights protection in criminal procedural law. It is the most far-reaching example of a harmonization of human rights standards in national judicial procedures to date, a legislative effort that, in addition, does not deny the crucial influence that the ECHR has exerted over the initiative.
Protocol 16 will allow the highest courts of its ratifying States to enter into a direct dialogue with the European Court of Human Rights, in a format that is traditional for EU law, but not so much for the ECHR. The highest courts will have the power to request a non-binding advisory opinion, but through a dialogue between judges and not by way of the direct review that Strasbourg has traditionally undergone when making use of its powers of review. Advisory opinions will allow high courts to profit from a friendlier contribution from Strasbourg, more focused on the interpretation of the Convention, rather than stating how right or wrong was the last national court to have a say in the case. Once the high courts realize that it is better to work in active cooperation rather than in passive resignation vis-à-vis Strasbourg, it is probable that advisory opinions will become a frequent source of judicial communication among European courts.
Directive 2016/343 is an extraordinary piece of legislation. Member States will be under EU supervision when their criminal courts rule on how the accused is to be treated in the course of the proceedings. The Directive deals with the treatment that public authorities give to suspects or the accused when being exposed in public, or when speaking publicly about the them. Rules on the burden of proof have been introduced, as well as rules on the right to remain silent. Specific provisions on the right to be present, and the conditions in which a person can be trialed in absentia are also a relevant part of the Directive. In sum, the basic rights of any individual in a criminal procedure have now been codified by EU law, irrespective of whether the case involves the application of EU rules or not. Every case in every Member State involving a criminal proceeding in which a physical person is a suspect or accused, is now under the scope of Directive 2016/343.
It’s not an exaggeration to say that, after April 2018, human rights law in Europe will be going through a revolution.
To start with, the European Court of Human Rights will feel the first symptoms of a typical Luxembourg syndrome. Having Supreme Courts knocking at your door will bring Strasbourg straight into the field of judicial diplomacy through judgments, something that the Court of Justice in Luxembourg has been used to for the past decades. But above all, Supreme Courts will have an incentive to communicate directly with Strasbourg, while parties will have a new argument in their applications and defenses, in search of an early opinion from Strasbourg that saves them from fighting a direct action later on, with uncertain chances of admissibility and/or success. The role of the ECHR in current litigation will assume a new dimension, becoming a novel instrument in the toolbox of national courts and practitioners. This could be revolutionary in the case of Constitutional Courts, which will find an inexcusable course of action to communicate with Strasbourg in a field in which they can hardly deny the importance of Council of Europe law: the protection of human rights.
The same development, but with an EU twist, will take place as a result of the full entry into force of Directive 2016/343. EU law will now become a crucial benchmark in criminal procedures when questions about human rights show up. And in contrast with Strasbourg case-law, EU law is directly effective and has primacy over national law and case-law. National courts, all courts, now have the power to set aside whatever standard the national criminal code provides, or the supreme or constitutional court has confirmed, as long as such standard is not in line with Directive 2016/343. Counsel for the accused will have a tremendously valuable new ally in Luxembourg, and a very useful tool as part of the defense strategy in the shape of the preliminary reference procedure.
However, what seem more striking to me is that, in the same way that Strasbourg will suffer the Luxembourg symptoms, the same will apply to the Court of Justice, but in the form of a Strasbourg headache. Directive 2016/343 explicitly states that the standards thereby provided are in line with the case-law of the European Court of Human Rights. In fact, a quick reading of the provisions of the Directive will immediately bring to one’s mind landmark decisions of the Strasbourg court. The Directive has introduced, by way of harmonization, a considerable part of the European Court of Human Rights’ jurisprudence. And it has done so unashamedly and in a transparent way, explicitly pointing at the relevance of the ECHR in its recitals. Autonomous interpretations of Directive 2016/343 will be difficult to make. The shadow of the ECHR in this Directive is all-embracing, in a way that will certainly condition the Court of Justice’s interpretation of it in the future.
As a result of this April revolution, national criminal courts will start looking into issues of human rights with the eyes of an EU Directive which codifies ECHR case-law under EU law, in cases that need no link whatsoever with EU law. In the meantime, supreme courts can start making requests for advisory opinions to the European Court of Human Rights, at times sacrificing a preliminary reference to Luxembourg, in the understanding that the Strasbourg court is a more specialized human rights court.
In criminal proceedings, the scene can be rather striking: a case raises a point of interpretation of Directive 2016/343, but in a specific issue that has been subject to specific attention in the case-law of the Strasbourg court. Because Directive 2016/343 is very explicit about the importance of the ECHR in the interpretation of its provisions, the national high court can well decide that there is no point in making a preliminary reference of interpretation on Directive 2016/343. It’s better to go straight to the main source: the ECHR and its supreme interpreter in Strasbourg. As a result of the advisory opinion, if the Strasbourg court finally rules that national law is not in line with the ECHR, despite the fact that the opinion is non-binding, the national high court can profit from the Directive in order to set aside the national provisions at stake. Through a novel synergy between EU law and ECHR law, national courts can make key questions to Strasbourg with new conventional instruments under Protocol 16, whilst profiting from the direct effect and primacy of EU law. A new and revolutionary way in which national courts, EU courts and the European Court of Human Rights interact in a cooperative and synchronized way will be born, in support of the individual and his or her human rights.
In contrast with the Court of Justice’s dark omens about the impact of Protocol 16, we could be facing an efficient new form of European judicial protection in the field of human rights, in which the different systems of judicial control interact with a common goal. Instead of putting each remedy in its isolated case, a synchronized interaction between direct effect, primacy, ECHR law and national remedies could provide the first signs of a truly European system of human rights protection.
If this is finally the outcome of April’s developments, then it is true that we are, indeed, before an April revolution for European human rights law.