Human Rights and the National Judge: His Constitution; The European Union; The European Convention
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Human Rights and the National Judge: His Constitution; The European Union; The European Convention Nial Fennelly
© ERA 2011
Abstract Starting from the perspective of a national (Irish) judge, the author examines the complex system of human rights’ protection guaranteed by national law, EU law and the European Convention. Human rights protection at these different levels is illustrated by a rich selection of case-law all originating from Ireland. At the first level, the Irish Constitution already grants a high level of judicial protection on the basis of an extensive catalogue of fundamental rights. In addition, the Irish courts have to apply the European Convention and the decisions of the European Court of Human Rights on the basis of the Human Rights Act of 2003 which however ranks below the Constitution. This is different for EU law in general and for the EU treaties in particular, including their reference to human rights protection and also regarding the Charter of Fundamental Rights which is now given primary law effect. Courts have to face a particular dilemma when applying decisions of United Nations organs as implemented in EU or national law which may be in conflict with human rights. Keywords Human rights · EU · ECHR · Constitution · Charter of Fundamental Rights · UN decisions
N. Fennelly () Supreme Court of Ireland, Dublin, Ireland e-mail: [email protected]
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N. Fennelly
1 Introduction The ground may seem all too well-trodden from the blank human-rights page of the Treaty of Rome, through the early abstinence of the Court of Justice in the matter1 of rights to require repetition. As always in European law, we are at a new cross-roads. We must look to the future. As we do so, we pay well-deserved tribute to the distinguished career of John Toulmin. Apart from his judicial career in the United Kingdom, he has served as President of the CCBE and as Chairman of the Board of Trustees of ERA. His contribution to the development of European law is very considerable. The Court delicately dipped its toe in the human-rights water in Internationale Handelsgesellschaft.2 Having insisted that “. . .the validity of a Community measure. . .” cannot be considered in response to a claim “that it runs counter to either fundamental rights as formulated by the constitution of that [member] state or the principles of a national constitutional structure.” The Court found itself able to declare, nonetheless, that: “An examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.” It is of no concern to us and a matter of mere historical curiosity as to how the Court discovered this “integral part” of the general principles. By 2002 the Court repeated the refrain in unqualified terms: “According to settled case-law, fundamental rights form an integral part of the general principles of law observance of which the Court ensures.”3
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