Mr. Maarten Feteris: Should national courts offer more extensive protection of fundamental rights than the European Court of Human Rights? (ABSz, 2020. Különszám, 37-39. o.)

It is an honour for me to speak at this conference, where experts and especially judges from various European countries exchange their views and experiences on constitutional questions. I will speak to you about common fundamental values and how they relate to national preferences, which may differ from country to country. We have quite some constitutional differences between European countries, so there is food for exchange. But we also have many things in common, fundamental values which are widely accepted throughout Europe, and thus form a hard core. Hard core is not only an academic qualification. These common values have been laid down in legal instruments with binding force. I mention the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. These instruments provide firm ground, the rights laid down therein must be observed by all the states concerned. These rights guarantee a minimum level of protection to citizens against state interference. Consequently, the space for diversity between European states below that level is limited. Which was the intention from the beginning: according to its preamble the Human Rights Convention was concluded to achieve greater unity in the maintenance and further realisation of human rights. The possibilities for diversity are further limited because we have two European Courts whose tasks include a binding interpretation of these fundamental rights which is uniform, at least to a certain degree.

I say to a certain degree, because the existence of shared fundamental values does not imply that we have a completely unified constitution in Europe. In various respects the individual states have freedom to develop their own structures and concepts, in which they have a margin of appreciation. Whether such a margin exists depends on the fundamental right in question, and on the room for exceptions formulated in the relevant international rule. A state can for instance never justify torturing people by invoking its margin of appreciation. This margin is very limited when the right to a fair trial is concerned, or for instance gender discrimination. When we are dealing with a fundamental right which does leave a margin of appreciation to the states, for instance by accepting exceptions in the general interest, the extent of that margin will depend on the subject matter. In fiscal matters, for instance, the margin of appreciation for the contracting States under the European Convention is generally very wide. There are other relevant factors. In fields where a margin of appreciation may in principle exist, it can be limited where a common international approach exists or is developing. Such a common ground may, more generally, be an important factor when interpreting and applying fundamental rights in Europe.[1] In addition, according to the Treaty on European Union (Article 6), constitutional traditions common to the member states have legal force as general principles of the Union's law. Common does not mean that absolute unanimity is required between the states concerned. Therefore, consensus in the majority of the relevant European countries may limit the room for states that prefer a different approach[2], for instance because they have a different view on acceptable criminal sanctions[3], a different religious tradition or different family values.

Defining the scope of fundamental rights in this perspective is often difficult. But it is obvious that the legislators of individual European states are not free to decide whether an issue falls inside or outside the hard core of fundamental rights where their margin of appreciation is limited or non-existent. Leaving such a freedom to individual states would in fact mean that the hard core becomes as hard as the state concerned is willing to accept, and therefore becomes soft.

The courts, when asked to provide legal protection to citizens, have an important responsibility for the interpretation and application of fundamental rights laid down in international instruments with binding force. The principle of the effective judicial protection of individuals' rights under EU law, including fundamental rights, is one of the general principles of Union law.[4] When fulfilling this role, it is the natural and inherent task of the courts to independently interpret the legal rules they have to apply. Ultimately, the interpretation of fundamental rights in European instruments lies in the hands of independent European courts. The independence of the national and European courts from political powers is essential in this respect. The interpretation by these courts may lead to the conclusion that national legislation or policy, although supported by a political majority, cannot be applied because of a violation of fundamental rights. Such a check cannot be effective if the courts are dominated by the influence of that same political majority and therefore not independent. The balance of powers in the state, legislative, executive and judiciary powers, is an essential element of a democratic state under the rule of law. It

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requires the possibility of checks and balances between these powers.

Some will object by saying that in a democracy decisions must be supported by a political majority. In general that is how democracy reasonably works. The rule of law however- also when combined with democracy - implies that there are fundamental rights which cannot be violated, not even by a political majority. This becomes obvious when we realise that fundamental rights often protect minorities. Tolerance is essential. Discriminatory treatment of ethnic, racial, religious or sexual minorities is incompatible with these fundamental rights and values, and cannot be justified by the fact that a political majority in that state supports this form of treatment. Even the constitution of a contracting state, which is usually passed by a qualified majority, may not violate fundamental rights which are guaranteed under European law.[5] If there is for instance a discriminatory rule in the constitution of a contracting state, the constitutional status of that rule cannot be an argument to justify this discrimination. Accepting such rule because of its constitutional status would mean that the contracting states have a possibility to unilaterally disregard fundamental rights, by way of a formal legal construction, and thus ignore the obligations by which they are legally bound internationally.

As I mentioned, this role of the courts to independently guarantee fundamental rights can lead to judicial decisions that are against the wishes of a political majority in the country concerned. Still, it is essential that decisions of the courts are respected as binding. Bashing exclamations by the press or even by leading politicians, such as the heading that judges are the enemies of the people, or tweets that their decisions are ridiculous and bring the country in danger, may have a far further stretching effect than just the specific case in which the criticism was made. Why then would a criminal who has been convicted by the court go to jail, if the media or his political leaders regard the judges as irresponsible or even stupid? And why would parties in a private labour conflict accept the judgment of a court in such a country as the final and binding settlement of their conflict? When the public gets the impression that even final judgments of the courts are merely opinions that are open to critical debate, and can even be rejected, this will make it far more difficult for the courts to fulfil one of their basic tasks, to solve all these thousands of conflicts they have to deal with from day to day. That is not the kind of society we would like to live in, with persistent conflicts, and investors - national and international - will not be inclined to put their money in such an economy. It addition, it should be observed that the legislator and the executive power need the judiciary and respect for judicial decisions in order to enforce the legislation which has been democratically enacted.