Protecting the rule of law by European Courts – which way to go?

Janneke Gerards

The rule of law is under pressure in many States. In recent times, for example, Hungary and Poland have been severely criticised for changes they have made to their systems that undermine judicial impartiality and independence. Moreover, in several States, the pluriformity of the media is under pressure, the role of civil society is threatened, and the fundamental rights of minorities and asylum seekers are breached. These are all worrisome signs of the erosion of democracy and the rule of law in Europe. An important question is what can be done to stop this process of erosion and protect the values underlying the rule of law? Of course, political mechanisms can be used, but people and institutions also increasingly turn to supranational courts such as the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (ECJ). For example, in Hungary, the number of applications lodged at the ECtHR concerning rule of law issues has surged, and in Poland, both the Supreme Court and other Polish courts have brought rule of law issues to the ECJ’s attention. From a strategic perspective, the question can be asked whether it makes a difference for those who want to be involved in this type of litigation to address either the ECtHR or the ECJ with rule of law concerns?This post argues that it does, because of the differences in procedure and approach taken by the two European Courts.

To explain, it is useful to first discuss the possibilities at the ECtHR. Importantly, this Court has to deal with any matter presented by applicants who feel their fundamental rights have been affected. This makes this Court easy to approach for victims of violations of the rule of law that allegedly amount to an interference with the European Convention on Human Rights (ECHR). Examples include prohibitions of demonstrations or of non-governmental organisations, measures curbing the freedom of expression, or legislation affecting the independence of the judiciary. An important setback, however, is that there is no possibility to bring an actio popularis. Applicants really must be personally affected by an alleged violation in order to successfully lodge an application. In addition, normally, the applicant must have gone through all the national courts before a complaint can be made before the ECtHR, and then, in most cases, the applicant is confronted by the delays caused by the Court’s considerable backlog. The result is that it is difficult for the ECtHR to hand down judgments that are relevant to today’s rule of law issues; it will often lag behind.

This is partially solved, since, as from August 2018, highest courts in signatory states to ECHR Protocol 16 can ask for an advisory opinion on the interpretation or application of the Convention in a case that is pending before them. However, States such as Hungary and Poland have not signed this Protocol. Moreover, although the Polish Supreme Court has proven the opposite by referring preliminary questions to the ECJ, generally, it is not very likely that such a procedural tool would be used by national courts that have been affected by measures harming their very independence and impartiality. So, although Protocol 16 certainly holds some promise, the ECtHR still will become engaged mainly through the individual complaint mechanism.

Surely, once an individual case is assessed on its merits, the ECtHR will not hesitate to deeply probe into the situation. In particular, important rule of law cases such as Baka, Navalnyy or Selahattin Demirtaş show that if the ECtHR smells something fishy, it will press on to find out if something actually was rotten. Indeed, this has resulted in many forcefully reasoned judgments, in which the Court goes to great lengths to emphasise the importance of notions such as the impartiality of the judiciary, the freedom to demonstrate, and the freedom of expression. Moreover, in these judgments, the Court often engages in intensive fact-finding to support a holding that measures presented by the government as innocent and justifiable were in fact motivated by considerations that cannot be reconciled with the rule of law.

Finally, it is worth mentioning that such judgments of the ECtHR invariably draw the attention of other European States, the media, interest groups, and human rights defenders. This may result in political peer pressure and bottom-up pressure by the media and civil society on the national and supranational level. In turn, this may cause the judgments of the ECtHR to have a relatively strong impact, even if some of them are outdated by the time they are published.

By contrast, the ECJ is confronted by rule of law cases in very different ways. Firstly, the ECJ may have to deal with an infringement procedure brought by the European Commission, as has happened to both Hungary and Poland in relation to changes in the retirement age for judges. Secondly, and increasingly more common, litigants invite national courts to use the preliminary reference procedure to send rule of law cases to the ECJ. Importantly, that procedure allows both highest and lower national courts to raise questions about the interpretation of rule of law values in pending cases. Different from the ECtHR, the ECJ can therefore answer such questions in more or less real-time.

In response to such preliminary questions, the Court of Justice provides concrete standards and interpretations. This is illustrated by the answers the ECJ gave to the questions referred by an Irish court about the European Arrest Warrant. In light of the threats to the rule of law in Poland, Irish High Court Judge Donnelly doubted whether a surrendered suspect would be tried by an impartial and independent court there. In response to this, in its judgment in the LM (or Celmer) case, the ECJ set out a number of detailed standards for national courts to assess whether there is a real risk of a breach of the right to a fair trial due to any deficiencies in the judiciary of another state. What the ECJ did not do, however, is say anything about the Polish situation as such, nor did it engage in any fact-finding of its own. Instead, it left it to the national courts to establish if Poland complies with the rule of law requirements in concrete cases. This shows that the ECJ’s rule of law judgments will have impact mainly via national case-law and national fact-finding. Surely, this impact can be considerable. After all, the LM approach could mean that a ‘backsliding’ State no longer has any tools at its disposal to have suspects or convicts surrendered, or its judgments executed, and this could threaten the smooth functioning of the domestic legal system. Eventually, therefore, this approach could put pressure on the State to stop the rule of law devaluation. However, given the strictness of the standards set by the ECJ in the LM case, this pressure might be highly theoretical. Indeed, Judge Donnelly recently decided that in light of the ECJ’s exacting standards, and regardless of the structural problems she found to exist in Poland, there was not enough proof in the concrete case to refuse the surrender of the suspect.

Clearly, both European Courts can be asked to express themselves on rule of law matters, and they can deal with them in ways that can have an impact. The timing of their interventions will be different, however, just like the nature of the impact of their judgments. The ECtHR’s judgments can provide a powerful evidentiary signal about the rule of law situation in a State, but they may have lost their relevance by the time they are delivered. By contrast, the ECJ can act in real-time, but its judgments only provide clues to national courts, which may be difficult to apply to any real effect. These difficulties justify some hesitation more generally as to the ability of judicial procedures to help uphold the rule of law and prevent States from backsliding: in many cases, they are too little or too late. Nevertheless, there is also clear value in the procedures, not in the least because of the emphasis these Courts have placed on rule of law values and the visibility of their holdings. This means that there is no reason to stop bringing such cases to the European Courts for litigants or national courts who want to be actively involved in upholding the rule of law. In deciding which Court to approach, however, it is useful to contemplate the possibilities and limitations of the various procedures, as well as their respective values and shortcomings, and to choose accordingly.