BALTIC YEARBOOK OF INTERNATIONAL LAW
Baltic Yearbook of International Law Volume 4, 2004
Baltic Yearbook of International Law Volume 4, 2004
Editor-in-Chief
Ineta Ziemele
MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON
2004
A C.I.P. Catalogue record for this book is available from the Library of Congress.
Printed on acid-free paper.
ISBN 90-04-14302-5 © Copyright 2004 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change.
Printed and bound in The Netherlands
BALTIC YEARBOOK OF INTERNATIONAL LAW Editor-in-Chief Ineta Ziemele, Södergberg Professor of International Law and Human Rights, Riga Graduate School of Law, Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI ), University of Lund Managing Editor Carin Laurin, Publications Officer, RWI, University of Lund Editorial Board Egidijus Bieliunas, Judge, Supreme Court of Lithuania Aivars Fogels, Dr. iur., Associate Professor, Faculty of Law, University of Latvia Tanel Kerikmäe, LL.M, LL.Lic, T.K Dean of the Law School, International University Concordia Audentes Egils Levits, Judge, European Court of Justice †Dietrich A. Loeber Dr. iur., Dr.iur.h.c., emer. Professor, University of Kiel, Foreign Member, Academy of Sciences, Latvia Rein Müllerson, Professor, Kings College, University of London Vilenas Vadapalas, Professor, Faculty of Law, University of Vilnius PƝteris Zilgalvis, J.D., Deputy Head, Bioethics Division, Directorate General of Legal Affairs, Council of Europe, Strasbourg Advisory Board Gudmundur Alfredsson, Professor, Director, RWI, University of Lund Theo van Boven, Professor of International Law, University of Maastricht James Crawford, Whewell Professor of International Law, Director, Research Centre for International Law, University of Cambridge Andrew Drzemczewski, Ph.D., Barrister-in-Law, Head, Monitoring Department, Council of Europe Secretariat, Strasbourg John Dugard, Professor of Public International Law, University of Leiden; Emeritus Professor of Law, University of the Witwatersrand, Johannesburg; Member, International Law Commission Asbjørn Eide, Senior Fellow, Norwegian Institute of Human Rights, University of Oslo; Chairman, United Nations Working Group on Minorities Thomas M. Franck, Murray and Ida Becker Professor of Law Emeritus, Director, Center for International Studies, New York University School of Law Christine Gray, Ph.D., Lecturer, University of Cambridge Mahulena Hofmann, JU Dr. (Prague), CSc. Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg Göran Melander, Professor Emeritus of International Law, University of Lund, Chairman of the Board, RWI; Member, Committee on the Elimination of Discrimination Against Women Allan Rosas, Professor, Judge, European Court of Justice Bruno Simma, Judge, International Court of Justice Brigitte Stern, Professor of International Law, University of Paris I Rüdiger Wolfrum, Professor Dr. Dr. h. c., Director, Max Planck Institute for Comparative Public Law and International Law, Heidelberg
Contents Egils Levits: In memoriam Prof.Dr.Dr.h.c. Dietrich A. Loeber (19232004) ..................................................................................................... ix Ineta Ziemele: Editorial Note ...............................................................
xvii
Special Theme: Enlargement and Further Integration of the European Union: a Uniform Vision for Europe? Julia Laffranque: The Constitution of Estonia and Estonia’s Accession to the European Union ......................................................... 1 Tomas Lamanauskas: Harmonisation of Lithuanian Electronic Communications (Telecommunications) Legislation with EU Law and Ensuring Its Harmonised Application ............................................ 21 KristƯne Krnjma: Stocktaking of EU Pre-Accession Monitoring Process, Citizenship Issues and Non-Citizens in Estonia and Latvia: a Litmus Test for European Union Human Rights Policy ....................... 33 Claire Salignat: The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe ............................ 55 Stuart E. Hendin Q.C.: The Evolution of the Right to Life by the European Court of Human Rights ........................................................ 75 V. Kelly Keane: Sexual Harassment in Paid Employment in the European Union .................................................................................... 111 Juris Rudevskis: L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg: une comparaison générale ........................................................................... 129 Raimundas Moisejevas: Domestic Remedies for Breach of EC Law ... 167 Gaƺina Žukova: Uniform Interpretation and Application of International Agreements in the European Union ................................ 181
vii
Baltic Yearbook of International Law History of International Law in the Baltic States Rudolf von Freymann: The Latvian – Soviet Russian Peace Treaty of 1920 and its Implementation (†Dietrich A. Loeber) ........................... 203 Materials on International Law: 2003 MƗrtiƼš Paparinskis: Latvia .................................................................
209
Laima Masalaite: Lithuania ..................................................................
289
Book Reviews Dainius Žalimas: Editorial Note ...........................................................
377
Application of European Union law in Latvia. Collection of essays edited by Ivo Alehno (DaimƗrs ŠkutƗns) .................................................. 381 Danutơ Joþienơ, The Application and Implementation of the European Convention on Human Rights in Domestic Law of Foreign States and of the Republic of Lithuania (Dainius Žalimas) ................. 385 Andrea Ott and Kirstyn Inglis (eds.), Handbook on European Enlargement: A Commentary on the Enlargement Process (Gaƺina Žukova) ................................................................................................. 391 Peter Norman, The Accidental Constitution: The Story of the European Convention (PƝteris Zilgalvis) ............................................. 395 List of Contributors ..............................................................................
401
Information for Authors ........................................................................
403
viii
In memoriam Prof.Dr.Dr.h.c. Dietrich A. Loeber (1923-2004)
Am 24.Juni 2004 ist nach einer kurzen Krankheit Professor Dr.Dr.h.c.Dietrich A. Loeber im Alter von 81 Jahren in Hamburg gestorben. Er war eine prägende Gestalt der deutschen und internationalen Osteuropaforschung. Dietrich André Loeber wurde am 4.Januar 1923 in Riga-Lettland in der Familie des Rechtswissenschaftlers und Senators (Richter am Obersten Gerichtshof Lettlands, dem Senat) August Loeber (1865–1948) geboren. Von Kindheit auf beherrschte er sowohl lettisch als auch deutsch, darüber hinaus auch russisch. 1939 nach dem Molotov-Ribbentrop-Pakt, welcher das Schicksal Lettlands für weitere 50 Jahre besiegelte, musste die deutschbaltische Familie Lettland verlassen. Seine 16 Kindheits- und Jugendjahre in Lettland, und der darauf folgende unvermittelte Verlust der Heimat, hatten ihn tief geprägt. Seine berufliche Hinwendung zur Erforschung des sowjetischen rechtlichen und politischen Systems, sein ix
In memoriam gesellschaftliches Eintreten gegen das Unrecht, das durch dieses System verursacht worden war, war durch diese Erfahrung vorbestimmt worden. Nach Abschluss des rechtswissenschaftlichen Studiums an der Universität Marburg (1948) und der Promotion zum Dr.jur. über das sowjetische Eherecht1 (1951) hat er sein Studium im Ausland fortgesetzt, was damals, wenige Jahre nach dem Kriegsende, für deutsche Studenten und Jungakademikern durchaus ungewöhnlich war. 1951 erwarb er das Diplom der renommierten Haager Akademie für Internationales Recht, 1953 erhielt er den akademischen Grad des LLM an der Columbia University in New York. Er arbeitete zunächst beim amerikanischen Sender Radio Liberty in München (1954-1955), zugleich war er anwaltlich tätig (1954–1966). Kurzzeitig trat er in den diplomatischen Dienst ein, wo er im Auswärtigen Amt in der für die Sowjetunion zuständigen Abteilung arbeitete (1958– 1959). Zugleich orientierte er sich auf die wissenschaftliche Karriere. 1955– 1960 war er Gründungsredakteur der Zeitschrift „Osteuropa-Recht“, 1958– 1970 wissenschaftlicher Referent am Max-Planck-Institut für ausländisches und internationales Privatrecht in Hamburg. Sein wissenschaftliches Interessengebiet war Osteuropa, insbesondere die Baltischen Staaten und die Sowjetunion. 1966 habilitierte er an der Universität Hamburg zum Thema „der hoheitliche gestaltete Vertrag“.2 Im selben Jahr wurde er Professor und Direktor des Instituts für Ostrecht an der Universität Kiel. Dieses 1959 von Professor Dr.Boris Meissner gegründete Institut leitete er 23 Jahre (19661989) bis zu seiner Emeritierung. Das Institut von Professor Loeber wurde zu einer der wichtigsten Forschungsstellen für sozialistische Staaten in der Bundesrepublik Deutschland. Loeber legte Wert auf die multidisiplinäre Erfassung des sozialistischen Systems. Er war der Auffassung, dass wegen des besonderen Charakters dieses Gesellschaftssystems, welches mit der westlichen Gesellschaftsform ernsthaft konkurrierte, nur ein mehrdimensionaler Ansatz das Funktioneren dieses Systems, seine Stärken und Schwächen zu Tage fördern kann. Das spiegelte sich auch in der Umbenennung seines Instituts in 1
Das Eherecht der Sowjetunion und seine Hinwendung zum internationalen Privatrecht. Inaugural-Dissertation. Marburg 1950, 258 S. 2 Der hoheitlich gestaltete Vertrag. Eine rechtsvergleichende Untersuchung über den Planvertrag in der Sowjetunion und den „diktierten Vertrag“ im Recht der Bundesrepublik Deutschland. Berlin: Walter de Gruyter, Tübing: C.H.Mohr 1969, XX., 403 S.
x
Prof.Dr.Dr.h.c. Dietrich A. Loeber (1923-2004) „Institut für Recht, Politik und Gesellschaft der sozialistischen Staaten“ wieder.3 Dabei war er immer bemüht, den zur Zeit des Kalten Krieges bestehende „Eisernen Vorhang“ zu durchbrechen, und zwar in beide Richtungen. Bereits 1961 absolvierte er als einer der ersten deutschen Wissenschaftler einen mehrmonatigen Forschungsaufenthalt an der Universität Moskau, wo er hauptsächlich Material für das relativ unverfängliche Thema des sowjetischen Urheberrechts4 sammelte. In den nächsten Jahrzehnten bis zum Zusammenruch des sozialistischen Systems folgten viele offizielle und private Reisen in die sozialistischen Ländern. Die Kontakte blieben nicht einseitig. Seit den 70er Jahren lud er regelmäßig Wissenschaftler aus den osteuropäischen Staaten zu Forschungsaufenthalten in sein Institut ein. Der Aufenthalt an einer westlichen Universität eröffnete ihnen neue Horizonte. Einige der damaligen Austauschwissenschaftlern in Loebers Institut beteiligten sich aktiv an dem Umbruch und nehmen heute herausragende Positionen in ihre Heimatländer ein. Loeber unterschied in der Ostforschung immer zwischen „genuinen“ Wissen, das entsprechende Erfahrung, Landes- und Sprachkenntnisse verlangte, und oberflächlichen „angelesenen“ Wissen, das sich alleine auf „Fernbeobachtung“ und oft auch auf Zweitquellen stützt. Deshalb auch sein Bemühen, das System auch „vor Ort“ kennen zu lernen. Für einen Wissenschaftler, der über eigene Erfahrungen und genuines Wissen verfügt, ist „angelesenes Wissen“ schnell erkennbar; für einen Laien ist der Unterschied schon schwieriger festzustellen. Diese Unterscheidung (die für die „normale“ Rechtswissenschaft nichtssagend ist) war bei der Erforschung des sozialistischen Systems von Bedeutung, eines Systems, das sich ganz wesentlich auf Täuschung und Lügen gründete. Loeber legte immer Wert darauf, „hinter den Kulissen“ zu schauen, entfernte und schwer zugängliche Quellen zu finden und publik zu machen, die komplizierte Maschinerie des abgeschotteten und sich und andere täuschenden Systems zu durchschauen. Im Unterschied zu vielen anderen westlichen Besuchern fuhr er deshalb in die sozialistischen Staaten nicht ahnungslos, sondern im vollen Bewusstsein, dass er ausspioniert wird, und dass seine Gesprächspartner, auch renommierte Wissenschaftler, denen er viele Anregungen gab, nachher mehr oder weniger penibel einen Bericht über ihn an die Sicherheitsorgane 3
Nach dem Zusammenbruch des sozialistischen Systems erhlielt das Institut logischerweise seine ursprüngliche Bezeichnung „Institut für Ostrecht” zurück. 4 Vgl. Urheberrecht der Sowjetunion. Einführung und Quellen. Frankfurt a.M., Berlin: Alfred Metzner Verlag 1966. X, 212 S. xi
In memoriam abliefern werden. Nach der Wiederherstellung der Unabhängigkeit Lettlands erhielt er Einsicht in die von dem sowjetischen Geheimdienst KGB 30 Jahre lang (seit seinem Forschungsaufenthalt in Moskau 1961) über ihn geführten Akten. Es war für ihn bewegend, auf diese Weise nochmals den Spuren seiner Vergangenheit nachzugehen und mit dem damaligen Verhalten seiner Gesprächspartner wieder konfrontiert zu werden. Seine KGB-Akten bereitete er wissenschaftlich auf und veröffentlichte sie in der lettischen Archiv-Zeitschrift.5 Das war auch typisch für ihn: er registrierte alles, kämpfte gegen das Vergessen, doch ließ er keine negativen Emotionen zu, sondern analysierte seine Geschichte vom wissenschaftlichen Standpunkt. Das betraf auch einen anderen Schwerpunkt seines Wirkens – die Erforschung der faktisch erzwungenen Umsiedlung der Deutsch-Balten aus der alten Heimat in Estland und Lettland nach Deutschland, welche Loeber selbst als Jugendlicher erlitten hatte. Mit seinem Werk „Diktierte Option“6 hat er ein rechtswissenschaftliches und historisches Standardwerk zu diesem Thema geschaffen. Dabei bezeichnet dieser an sich widersprüchliche Titel zutreffend den Charakter der „erzwungenen Freiwiligkeit“ der von Hitler in Kollaboration mit Stalin beschlossenen ethnischen „Flurbereinigung“ in den baltischen Staaten: Es war ein Wahl ohne Alternativen. Er selbst entwickelte seine internationalen Bindungen nicht nur nach Osten, sondern auch nach Westen. Er blieb immer seiner zweiten alma mater, der University of Columbia, in den USA treu, wo er über Jahrzehnte regelmäßig Gastvorlesungen las. Es folgten Gastvorlesungen und Forschungsaufenthalte an anderen amerikanischen Universitäten, darunter der renommierten Stanford University, sowie in Australien und Kanada. Durch seine profunden Kenntnisse wurde er auch dort zu einem anerkannten und viel gefragten Fachmann für das sozialistische System. Seine vielen Einladungen nach Columbia, Stanford, Berkeley und an andere bekannte Universitäten sind als Beweis für seine wissenschaftlichen Leistungen zu werten. 1986 wurde er zum Dekan der Juristischen Fakultät der Universität Kiel gewählt. Seine Emeritierung 1989 fiel mit dem Zusammenbruch des sozialistischen Staatensystems zusammen. Jetzt konnte er ungehindert seine
5 „BƝra“ lieta Latvijas PSR Valsts DrošƯbas komitejƗ (1961-1990). In: Latvijas ArhƯvi. 1996, Nr.3/4, 132.-138.lpp. 6 Diktierte Option. Die Umsiedlung der Deutsch-Balten aus Estland un Lettland. Dokumentation zusammengestellt von Dietrich A. Loeber. Neumünster: Karl Wachholtz Verlag, 1972, 2., unveränderte Auflage 1974, 747 S.
xii
Prof.Dr.Dr.h.c. Dietrich A. Loeber (1923-2004) Kenntnisse und sein gesellschaftliches Engagement seiner Heimat Lettland zur Verfügung stellen. Von den vielfältigen Aktivitäten haben drei seiner Anliegen besondere Wirkung entfaltet. Erstens, mit Nachdruck trat er zu Beginn der 90er Jahre für das Wiederinkraftsetzen des Lettischen Zivilgesetzbuchs von 1937, das bis zur sowjetischen Besatzung in Kraft war und eine der modernsten europäischen Kodifikationen des Zivilrechts darstellt (an dessen Ausarbeitung, unter anderem, auch sein Vater, Senator August Loeber, maßgeblich beteiligt war). 1992 beschloß das lettische Parlament schließlich, den für die Marktwirtschaft untauglichen sozialistischen Zivilkodex, nicht, wie die anderen postsozialistischen Staaten, zu reformieren, sondern komplett durch das kontinental-europäische Zivilgesetzbuch von 1937 zu ersetzen. Dieser Schritt wirkte sich nachhaltig positiv auf die folgende Wirtschaftsreform aus. Sein zweites Anliegen war die staatliche und rechtliche Kontinuität Lettlands bzw. der baltischen Staaten.7 Beharrlich wies er in wissenschaftlichen Aufsätzen und bei gesellschaftlichen Anlässen darauf hin, dass das Unrecht, dass die sowjetische Besatzungsmacht den baltischen Staaten angetan hat, zumindest rechtlich, aber auch politisch noch nicht wiedergutgemacht ist.8 Schon vor der Wiedererlangung der Unabhängigkeit der baltischen Staaten wies er immer wieder auf die völkerrechtswidrige Besatzung der baltischen Staaten hin. In einem Gutachten stellte er die Rechtswidrigkeit der 1968 erfolgten politisch motivierten Übergabe der lettischen Goldreserven, die kurz vor der sowjetischen Besatzung 1940 nach Großbritannien transferiert wurden, durch die britische Regierung an die Sowjetunion fest.9 Tatsächlich erhielt Lettland in der 90er Jahren von 7
Vgl. z.B. Die baltischen Staaten vor völkerrechtlichen Problemen: Kontinuität oder Staatennachfolge in bezug auf Staatsverträge, Staatseigentum und Staatsschulden. In: Wirtschaft der baltischen Staaten im Umbruch. Hrsg. v. B.Meissner, D.A.Loeber, E.Levits. Köln: Verlag Wissenschaft und Politik C. P. v. Nottbeck 1993, S.26-32; Die Staatsverträge der baltischen Staaten und Russlands 1920 und 1991: Eine vergleichende Betrachtung. In: Die Unabhängigkeit der baltischen Länder: Geschichte, Probleme, Perspektiven. Marburg: J.G.Herder-Institut, 1993, S.23-31. 8 Vgl. z.B. The Russian-Latvian territorial dispute over Abrene: A legacy from the times of Soviet rule. In: The Parker Law School Journal of East European Law. 1995, Vol.2, Nr.4-5, pp. 537–559; Legal Consequences of the Molotov-RibbentropPact for the Baltic States On the Obligation ‘to Overcome the Problems Inherited from the Past’. Baltic Yearbook of International Law, Vol.1, 2001, pp. 121-166. 9 The Problem of the Baltic Gold in Great Britain. In: Internationales Recht und Diplomatie. 1968, S.75-88. xiii
In memoriam Großbritannien dafür Schadensersatz, wobei in den Verhandlungen sein Gutachten von damals eine Rolle spielte. 1975 erstellte er eine vielbeachtete Dokumentation über den völkerrechtlichen Status der baltischen Staaten.10 Die Dokumentation wurde von der zentralen lettischen Exilorganisation der Konferenz für Sicherheit und Zusammenarbeit in Europa vorgelegt. Sein drittes großes Anliegen war die Anknüpfung des heutigen lettischen Rechtssystems an das Rechtssystem des unabhängigen Lettlands zwischen den Weltkriegen. Für ihn war wichtig, ins Bewusstsein zu rufen, dass das heutige lettische Rechtssystem nicht in einer leeren Stelle entstanden ist. In der Tat, heute sind sowohl die Verfassung, als auch das Zivilgesetzbuch aus der Vorkriegszeit wieder in Kraft. Deshalb sind sowohl die Rechtsprechung, als auch die juristische Literatur von damals heute wieder von Relevanz. Durch Einsatz von persönlichen Mitteln hat er die gesamte Rechtsprechung des Senats 1918-194011 sowie die damaligen rechtswissenschaftlichen Zeitschriften12 im Reprint nachdrucken lassen und den Gerichten und Bibliotheken zur Verfügung gestellt. Er verfolgte auch das Schicksal der damaligen obersten Richtern nach der sowjetischen Besatzung und zeichnete die tragische Geschichte dieses Gerichtshofs auf. Die 1997 von der Lettischen Akademischen Bibliothek erstellte Bibliographie13 von Loeber umfasst 704 Titel, darunter 215 selbständige wissenschaftliche Veröffentlichungen. Unter den vielen Veröffentlichungen möchte ich zwei Sammelbände besonders hervorheben – über die Rechtsstellung der herrschenden kommunistischen Parteien in den sozialistischen Staaten (1986)14, und über die regionale Identität unter 10
The Baltic States, 1940-1972. Documentary background and survey of developments presented to the European Security and Cooperation Conference. Stockholm: The Baltic Committee in Scandinavia, 1972, 2nd ed. 1973, 120 p. 11 Latvijas Senata spriedumi. 1918-1940. Nachdruck: RƯga: AugstƗkƗ tiesa, Senatora Augusta LƝbera fonds 1997-1998. 16 Bände, 3 Registerbände (neu zusammengestellt). 12 Tieslietu Ministrijas VƝstnesis, 1920-1940. Nachdruck: RƯga: Tieslietu ministrija, Senatora Augusta LƝbera fonds 2002 ff., bis 2004 nachgedruckt: 9 Bände; Rigasche Zeitschrift für die Rechtswissenschaft, 1926-1939. Vollständiger Nachdruck: Riga: Latvijas AkadƝmiskƗ biblioteka 2002, 10 Bände; Zakon i Sud, 1929-1938. Vollständiger Nachdruck: Riga: Latvijas Juristu biedrƯba, Senatora Augusta LƝbera fonds 2002, 8 Bände. 13 Latvijas ZinƗtnieki. Latvijas ZinƗtƼu akadƝmijas loceklis DƯtrihs Andrejs LƝbers. BiobibliogrƗfija. 14 Ruling Communist Parties and their Status under Law. Ed. by D.A.Loeber (ed-inChief), D.D.Barry, F.J.M.Feldbrugge, G.Ginsburgs, P.B.Maggs. Dordrecht, Boston: Martinus Nijhoff Publishers 1986, XXI, 550 p..
xiv
Prof.Dr.Dr.h.c. Dietrich A. Loeber (1923-2004) sowjetischer Herrschaft am Beispiel der baltischen Staaten (1990).15 Beide gehen auf Konferenzen in dem Kieler Institut von Loeber zurück. Für einen deutschen Hochschullehrer ungewöhnlich ist sein Teil-Kommentar zur lettischen Verfassung (1998),16 der in lettisch verfasst wurde und bisher die einzige (und von den Studierenden sowie von der Verfassungsrechtsprechung oft benutzte) Teilkommentierung der lettischen Verfassung geblieben ist. Das charakteristische an seinem wissenschaftlichen Werk ist die ungewöhnliche Perspektive, unter der er den von ihm behandelten Gegenstand sieht, sowie Erfassung von schwer zugänglichen Quellen, die oft neues Licht auf bereits bekannt geglaubte Tatsachen werfen. Dabei scheute er im Interesse der Wahrheit auch nicht vor einer „Subversion“ zurück. So war seine Studie über die geheimen normativen Erlasse in der Sowjetunion17 sehr erhellend, um das sowjetische Rechtssystem in seiner Funktionsweise zu verstehen. Die geheimen Erlasse waren in der Sowjetunion natürlich „tabu“. Loeber war (und blieb bis heute) der einzige, der dieses wichtige Phänomen des sowjetischen Rechts wissenschaftlich untersucht hat. Seine Studie wurde mit seiner Hilfe in das Russische übersetzt und den sowjetischen Untergrundzeitschriften zugespielt. Sie kursierte dann als Nachdruck unter den Dissidenten. 1988 hat er das Faximile des von der Sowjetunion geleugneten geheimen Zusatzprotokolls zum MolotovRibbentrop-Pakt über die Aufteilung der Einflußspären in Osteuropa illegal nach Estland eingeführt und dort auf einer offiziellen Konferenz verteilt, was die sowjetischen Besatzungsbehörden in Bedrängnis brachte und den baltischen demokratischen Volksbewegungen den Rücken stärkte. Loeber wurde sowohl von der Bundesrepublik Deutschland als auch von Lettland mit hohen Auszeichnungen bedacht. 1991 erhielt er von der Universität Lettlands die Ehrendoktorwürde.
15
Regional Identity under Soviet rule: The case of the Baltic States. Ed. by D.A.Loeber, V.S.Vardys, L.P.A.Kitching. Hackettstown, N.J. 1990, XXII, 470 p. (Publications of the Association for the Advancement of the Baltic studies.6.). 16 Der Kommentar der Sektion “Regierung” der lettischen Verfassung, unter Mitarbeit von Prof.Dr.I.Bišers: Ministru kabinets. KomentƗrs Latvijas Republikas Satversmes IV.nodaƺai „Ministru kabinets“. DƯtrihs Andrejs LƝbers sadarbƯbƗ ar IlmƗru Bišeru. RƯga: TiesiskƗs InformƗcijas Centrs 1998, 252 lpp. 17 Legal rules ‘for internal use only’: A comparative analysis of the practice of withholding government decrees from publication in Eastern Europe and in Western countries. In: The International and Comparative Law Quarterly. 1970, Vol.19, pp. 70-98. xv
In memoriam Für alle, die ihn kannten, werden seine internationale Sichtweise, sein in der Form konziliante, aber in der Sache unerschrockenes und festes Eintreten gegen Unrecht, auch wenn das dem Zeitgeist nicht passte, sein Streben, die Zeit möglichst effektiv zu nutzen, sein Sinn für Fairneß immer in Erinnerung bleiben als Charaktereigenschaften Loebers – eines großen Wissenschaftlers und nobler Persönlichkeit, der auf verschiedenen Feldern tiefe Spuren hinterlassen hat.
Egils Levits Richter am Europäischen Gerichtshof Luxemburg
xvi
Editorial Note 2004 is a special year in the history of the Baltic States since the three States became members of the North Atlantic Treaty Organisation (NATO) and the European Union (EU). The governments of all three States announced that the most important foreign policy goals of the last decade have been achieved. It has also been conceded that membership in NATO and the EU is not the end of the process, rather it is the beginning of a qualitatively different process in the lives of the three States and their peoples. This volume of the Yearbook contains articles that show the challenges that the legal systems and practices of the three States face upon becoming members of the EU. The debate about the changes in the Constitutions with the aim to properly incorporate EC law is by far not completed. An article discussing the Estonian debate is included in the volume. It is not only the constitutional framework that may need to be amended, but important changes have already taken place in the private law of the new Member States. The enlargement of the EU not only poses challenges to the new Member States, it is also a fundamental challenge to the EU itself and to the European structure at large. For example, questions about the future of the protection of human rights in Europe have been put on the forefront of the European agenda not only because the EU has expanded eastward, but also because it has decided to become a human rights actor itself. Questions of the relationship between the Council of Europe with its Convention on Human Rights and the EU are addressed in a number of contributions. Once again, domestic remedies and the principle of subsidiarity are emphasised in relation to both the implementation of EC law and European human rights law. As of this volume, the Baltic Yearbook will publish materials in international law from the Baltic States classified in accordance with Recommendation (97)11 of 12 June 1997 of the Committee of Ministers of the Council of Europe, also used by other international law journals. Practices from Latvia and Lithuania for 2003 are compiled accordingly. With this volume a new section on “History of International Law in the Baltic States” appears for the first time in the Yearbook. Fedor (Friedrich) Martens (1845–1909) is regionally the most widely known commentator on international law, but there is certainly more to the history of international law in the Baltic States. The section begins with an examination of the work of Rudolf von Freyman (1860–1934), an international lawyer who began his career in the Russian Empire and continued working in Latvia after her establishment.
xvii
Ineta Ziemele It is a fateful coincidence that the material for this new section of the Yearbook was prepared by Professor Dietrich A. Loeber (1923–2004), as one of his last submissions to international law and the Baltic States. For the Baltic Yearbook of International Law, it has been an honour and privilege to have Dietrich A. Loeber as one of the founders and contributors and to have benefited from the opportunity of working closely with him. The loss of Professor Loeber marks an end to a difficult and very challenging epoch for international lawyers involved in the Baltic region, but Professor Loeber did his utmost to ensure continuity and the Yearbook will continue the restoration of the Baltic traditions in international law and ensure their future development.
Ineta Ziemele Editor-in-Chief
xviii
Special Theme: Enlargement and Further Integration of the European Union: a Uniform Vision for Europe? The Constitution of Estonia and Estonia’s Accession to the European Union Julia Laffranque*
Contents 1. Introduction 2. Was Constitutional Amendment Necessary? 3. Both Sides of the Success Story of the ‘Third Constitutional Act’ 4. Criticism about the Referendum and Amendment Process: How will the Amendment affect life as a Member State? 1. Introduction In 2002 the Constitution of the newly independent Estonia became ten years old.1 Noteworthy is the fact that the Constitution was not amended at all during the first decade. This refers either to the successful quality and stability of Estonia’s most important in-force legal document or to an oversophisticated procedure of amendment of the Constitution and inability to achieve the political consensus for adoption of necessary amendments. However, 1992, the eleventh year of the Constitution, began with an adoption of an amendment to the text. On 25 February 2003 the Estonian parliament (Riigikogu) decided to increase the length of the term for election of local government councils from three to four years. This change of the Constitution will take in force on 17 October 2005.2
* PhD., LLM. (Münster) Deputy Secretary General on legislative drafting at the Ministry of Justice of Estonia. This article expresses purely personal positions. 1 The Constitution of the Republic of Estonia, Riigi Teataja (State Gazette) RT 1992, 26, 349. 2 Act to Amend the Constitution of the Republic of Estonia for Election of Local Government Councils for Term of Four Years, RT I 2003, 29, 174.
1
Julia Laffranque Many changes have taken place in Europe and in Estonian society since 28 June 1992 – the day the people of Estonia adopted by a referendum the Constitution. In the meantime the European Union (EU) was created by the Treaty of Maasticht, which took effect in November 1993. In 1995 Estonian government presented an application for membership of the European Union. Three years later the Association Agreement entered into force3 and the accession negotiations with Estonia were opened and concluded on 16 April 2003 in Athens in the signature of the Accession Treaty.4 In this context an inevitable question arose of how a Constitution passed slightly more than ten years ago can hold out against such fast development in foreign policy, which is, though, also closely intertwined with domestic policy, and what would be the best approach in order to achieve a balance between political objectives, the will of people and juridical correctness that would satisfy both politicians and lawyers and what is most important − the Estonian people. On 18 December 2002 Riigikogu answered this complicated question and adopted a decision on holding a referendum in order to amend the Constitution and ask people about the accession to the European Union. The following paper attempts to analyse why amendments of the Constitution concerning the EU accession were necessary (1) and why out of different possible solutions the particular method of amendments that was finally used was chosen (2). After a short commentary and evaluation of the text of the amendments; the referendum and its results will be elaborated and the future implementation of the amendments will be predicted (3). 2. Was Constitutional Amendment Necessary? In May 1996, under the leadership of the former Minister of Justice Paul Varul, an Expert Legal Review Committee of the Constitution of the Republic of Estonia was formed, the task of which was to prepare for amendment of the Constitution. The Committee consisted of nine members: in addition to the Minister of Justice, justices of the Supreme Court of Estonia (Riigikohus), the Legal Chancellor, solicitors, legal counsellors and professors. The Committee was assisted by workgroups. Two years later the 3
On 28 November 1995, the Prime Minister of the Republic of Estonia presented an official application to the Commission of the European Union on Estonia’s wish to join the European Union. The Association Agreement between European Communities and their member states and the Republic of Estonia or the Europe Agreement was signed on 12 June 1995 and it entered into force on 1 February 1998, RT II 1995, 22−27, 120; OJ L 68 9.3.1998 p. 3. 4 OJ L 236 23.9.2003 p. 17.
2
The Constitution of Estonia and Estonia’s Accession to the European Union Committee presented its final report, which consisted among others the proposal to modify the Constitution in order to legitimate Estonia’s access to the European Union. However, although the Committee invited lawyers and politicians to discussion, the reaction to it remained modest.5 In spite of the fact that the relation between the Constitution of Estonia and the European Union and issues related to possible amendment of the Constitution were important problems that needed comprehensive juridical as well as political analysis and a broader discussion relying on it, the lawyers but especially the politicians had the utmost caution in their attitudes towards this controversial and complicated topic and therefore the final solutions/compromises were found in a very late stage of Estonia’s accession to the European Union and were accompanied only by few public debates. The Estonian Euro-sceptics and opponents to Estonia’s accession to the EU relied on Article 1 of the Estonian Constitution and excluded Estonia’s EU membership according to the Constitution in force at the time. Pursuant to Article 1 of the Constitution, Estonia is an independent and sovereign democratic republic wherein the supreme power of State is vested in the people. In accordance with the second sentence of the same Article, the independence and sovereignty of Estonia are timeless and inalienable. In the first place, the principle of sovereignty of people emphasises the people as the carrier and source of State power, and its role.6 The Expert Legal Review Committee relied to a great extent on the meanings prescribed to the terms independence and sovereignty by the Estonian law scholar Artur-Tõeleid Kliimann before World War II, while coming to the conclusion that although the European Union does not threaten Estonia’s independence, it does have
5
Concerning seminars on the Constitution of the Republic of Estonia and the European Union, only two of them are worth mentioning: the Riigikogu’s event on amendment of the Constitution in a more general sense that took place in Haapsalu in December 1999, and the round table on EU law organised a year later by the Ministry of Justice ‘On the need for amendment of the Constitution of the Republic of Estonia in relation with Estonia’s accession to the European Union’ with the participation of German and French experts, which was followed by a broader discussion in the National Library with the assistance of the European Union Information Secretariat. A third conference organised by the Estonian Lawyers Union and the Ministry of Justice in November 2002 took place only shortly before the decision by the Parliament on how to amend the Constitution was taken and could therefore not have a substantial influence on the amendments. 6 Merusk, K.; Narits, R. Eesti konstitutsiooniõigusest (On Estonian Constitutional Law), Tallinn, Õigusteabe AS Juura, 1998, p. 22. 3
Julia Laffranque an impact on the sovereignty of the state.7 Dr. Anneli Albi, lecturer at the Kent Law School, at the time of the constitutional debates in Estonia, and a PhD student of the European University Institute in Florence, recommended reviewing the interpretations made by the Expert Legal Review Committee. While the Expert Legal Review Committee proceeded at interpretation of the Constitution in addition to obsolete definitions of the concepts independence and sovereignty mainly from the historical method of interpretation, according to which it was important at the time of adoption of the Constitution in the context of becoming newly independent that the Republic of Estonia ensures its independence as related to Russia, then according to Albi’s position, the present priorities of Estonia are voluntary accession to Western organisations founded on co-operation in the spheres of economy and security, and this is why the Constitution should also be interpreted as required by the new era.8 Reality, however, is never black-and-white; and thus the static, verbatim interpretation of the text of the Constitution or, on the other hand, an extremely liberal treatment of it must also not be approached from just one unique perspective. The text of the Constitution is undoubtedly the starting point for its interpretation, but besides this the Constitution also sets limits to interpretation itself. Theoretically the interpretation of a constitution is as natural as interpretation of any other law,9 but this of course depends on the person interpreting the constitution and the validity of such an interpretation. Undoubtedly, any applier of the Constitution inevitably interprets the Constitution, but the interpretations by the Constitutional Review Chamber of the Supreme Court, if it performs constitutional review over a law or a
7
The account of the Expert Legal Review Committee is available in the homepage of the Ministry of Justice. Available at < http://www.just.ee/> Õigusloome accessed on 2 January 2004. 8 Albi, A. ’Euroliit ja kaasaegne suveräänsus. Üks võimalikke vastukajasid põhiseaduse ekspertiisikomisjoni üleskutsele aruteluks’ (The European Union and contemporary sovereignty. One possible response to the invitation to discussion of the Expert Review Committee of the Constitution), Juridica, No. 3, (2000), p. 165. 9 See Narits, R. ’Tõlgendamisest Kontinentaal-Euroopa õiguskultuuris.’ in Euroopa Nõukogu. Riigikohus. Seminari konstitutsioonikohtute organisatsioon ja tegevus ettekanded (On Interpretation in the Legal Culture of Continental Europe. European Council. The Supreme Court. Presentations at the seminar ‘Organisation and activity of constitutional courts’), Tartu, Atlex, 1995, p. 46.
4
The Constitution of Estonia and Estonia’s Accession to the European Union lower legal act, possess special value.10 The Supreme Court in its creation of legal principles and interpretation of law in practice relies among other things on generally accepted principles of international law, including principles characteristic of the European Union.11 Besides, the Court prescribes an interpretation value to the Preamble of the Constitution also.12 The latter has been considered in the context of the European Union by the Committee of Expert Legal Review of the Constitution, which held the justifiable position that the Preamble of the Constitution does not hinder the development of statehood and needs no amendment.13 In my opinion, the main problem of this topic did not lie in the first Article of the Constitution and the impossibility of alienation of sovereignty. The amendment/rewording of this Article could have only been to certain extent politically desired in relation to cultural and historical traditions, the importance of the concept and essence of sovereignty for the Estonian people. Amendment of the Constitution turned out to be much more important when proceeding from the fact that the Constitution of the Republic of Estonia absolutely lacked a generally formulated provision that would allow for implementation of state competencies on an international level by international organisations, and thus also to delegate implementation of certain sovereign authorities of state power to the European Union. Obviously, there has not been an urgent need for this so far. There is no doubt that the world has become and is becoming more and more global. International co-operation is often observable and interpretable as part of sovereignty, but drawing a frontier between an integration organisation and the coming to an end of sovereignty of a country is 10
See the Constitutional Review Proceedings Act, RT I 2002, 29, 174; 2003, 4, 22; 24, 148, pursuant to § 2 of which the court of constitutional review shall be the Supreme Court. 11 See e.g. Judgment no. 4-1-5-94 of 30 September 1994 of the Constitutional Review Chamber of the Supreme Court (RT I 1994, 66, 1159); the Judgment no. 33-1-97 of 24 March 1997 of the Administrative Law Chamber of the Supreme Court that refers to the 1994 judgment in which the Court has said that the general principles of law developed by the institutions of the European Council and the European Union derived from general principles of law of the member states with highly developed legal culture should be taken account of at development of general principles of Estonian law. 12 See e.g. Judgment no. 3-4-1-7-98 of 4 November 1998 of the Constitutional Review Chamber of the Supreme Court (RT I 1998, 98/99, 1618). 13 See the Expert Legal Review Committee’s account (supra note 7) on the Preamble of the Constitution. 5
Julia Laffranque relatively sophisticated.14 Of course, the bringing of the Constitution into compliance with the changed reality must be acquiesced. There is no sense in relying on an obsolescent text or an illusory vision of sovereign nation States when the rest of Europe talks of a global era, bidding the nation States farewell, the death of nation States and even an end to democracy, sacrificing the former principles in the name of a new universal collective identity.15 However, this kind of approach may be applied only within the limits to the extent of which the people, to whom the supreme power of the State is vested and as the possessor of the constitutional power itself, sees the change of meaning of sovereignty in contemporary Europe. If for example the Republics of Finland and France may be regarded as sovereign States from the point of view of Estonian people, regardless of their belonging to the European Union, then there cannot be talk of complete alienation of sovereignty in case of Estonia’s accession to the European Union either, but rather of a change of meaning of the concept of sovereignty, of delegation of a certain portion of sovereignty. The interpretation of the Constitution must satisfy the requirements of actual social reality, which implies going beyond the text of the Constitution and seeing values above or behind the text.16 Sovereignty as a term of State law is not a purely legal concept, but presumes a political approach. Thus a more dynamic interpretation of the Constitution should be supported. At the same time, it cannot be decided whether it is enough for ensuring the legitimacy of accession to the European Union to update the interpretation, before it has been checked whether a direct conflict may be found in the provisions of the effective Constitution as to principles arising from the essence of the European Union or not. Indeed in accordance with the equability principle of the Constitution, the Constitution ought to be interpreted in such a manner that would not conflict with other norms of the Constitution. As it is generally known, the treaties constituting the foundation of the European Union − the Treaty Establishing the European Coal and Steel Community, the Treaty Establishing the European Atomic Energy Community, the Treaty Establishing the European Community and the 14
Vunder, M. ‘Eesti Vabariigi põhiseadus ja Euroopa Liit.’ Uurimustöö (The Constitution of the Republic of Estonia and the European Union. A Research Account). Tallinn, Justiitsministeerium (Ministry of Justice), 1996 (manuscript), p. 5. 15 See Denninger, E. ’Vom Ende nationaalstaatlicher Souveränität in Europa.’ Juristenzeitung, 2000, pp. 1121–1126, particularly p. 1122. 16 Merusk, K.; Narits, R. (Supra note 6), pp. 50–51.
6
The Constitution of Estonia and Estonia’s Accession to the European Union Treaty on European Union − are all international treaties in their essence. At the same time, the European Union has become an integration organisation that is creating supranational law in the first pillar of the European Union, forming therewith a specific European legal order sui generis that is different from international law as well as from an internal legal order for its different set of purpose and perspective.17 The States waive a certain portion of their sovereignty to the European Union, and this is why European law is superior to internal law in a sphere within the scope of competence of the European Union and directly applicable on certain conditions.18 This new legal order and its implications, for instance, passing a decision in the Council of ministers with a qualified majority, are the best characteristics for the European Union. Generally no conflict should occur between a constitution of a Member State and European law. If this still becomes evident, European law should be applied according to the position of the European Court of Justice.19 European law should actually be seen not as standing on a higher level of hierarchy, but as a parallel autonomous legal order bound with internal law via provision/provisions of constitution of a Member State allowing for membership of the given State in the European Union. The issue varies from one Member State to another as there are different stipulations in the Constitutions about the European Union (so called Europe articles which enable the transfer of sovereignty). As there were (and still are – we will come to this possibility later) sections in the Estonian Constitution which can not be interpreted in favour of EU law, such as for e.g. Articles 1, 29, 31, 48, 59 and 11120 of the Constitution, one can not say that the
17
See judgment of the European Court of Justice (ECJ): Costa v. ENEL, Case No. 6/64 (1964), ECR 1251. 18 See Van Gend en Loos, Case No. 26/62 (1963), ECR 1. 19 Internationale Handelsgesellschaft, Case No. 11/70 (1970), ECR 1125. 20 Article 1 - Estonia is an independent and sovereign democratic republic wherein the supreme power of state is vested in the people. The independence and sovereignty of Estonia are timeless and inalienable. Article 29 - An Estonian citizen has the right to freely choose his or her area of activity, profession and place of work. Law may provide conditions and procedure for the exercise of this right. Citizens of foreign states and stateless persons who are in Estonia have this right equally with Estonian citizens, unless otherwise provided by law. Article 31 - Estonian citizens have the right to engage in enterprise and to form commercial undertakings and unions. Law may provide conditions and procedure for the exercise of this right. Citizens of foreign states and stateless persons who are 7
Julia Laffranque Constitution of 1992 in whole was in accordance with the EU law. This was one of the reasons why the dynamic interpretation of the Constitution was not sufficient to enable Estonia’s legitimate accession to the EU. Furthermore, according to Article 3 of the Constitution the State authority shall be exercised solely pursuant to the Constitution and laws which are in conformity therewith and as the legislative power is, according to the Constitution, vested in the Estonian parliament only – the laws legally binding in Estonia are until now thus only the ones adopted in Tallinn and not in Brussels. As this was still possible prior to the accession where even the EU regulations had to be transposed in the Estonian legislation via national laws, the situation will change together with the membership in the EU and the ‘EU laws’ – regulations – will be directly applicable in Estonia. This is why the modification of the idea behind Article 3 of the Estonian Constitution could have been prescribed as a certain pre-condition to enable the membership and thus it presented a justified ground for the need to amend the Constitution of Estonia in relation with Estonia’s accession to the EU and legitimate the transfer of certain powers of Estonia to exercise the State sovereignty to the supranational institutions of the European Union. 3. Both Sides of the Success Story of the ‘Third Constitutional Act’ Generally speaking, the constitutional amendments about the EU accession may be included into the Constitution together with other amendments or the supplementations concerning accession to the EU may be separated from other amendments and included independently. The finding of the right solution thereby depends to a great extent on what kind of positions dominate concerning the proposals for other amendments, as for instance the suggestions made by the Expert Legal Review Committee of the Estonian Constitution in 1998. If consensus would have been achieved on such an issue as direct election of the President, the supplementations related to the European Union could have also been included together with other amendments. This would have fostered the politicians to look deeply in the in Estonia have this right equally with Estonian citizens, unless otherwise provided by law. Article 48 - Everyone has the right to form non-profit associations. Only Estonian citizens may belong to political parties. Article 59 - Legislative power is vested in the Parliament (Riigikogu). Article 111 - The Bank of Estonia has the sole right to issue Estonian currency. The Bank of Estonia shall regulate currency circulation and shall uphold the stability of the national currency.
8
The Constitution of Estonia and Estonia’s Accession to the European Union future of the Estonian State, to look the Constitution as a whole and also other parts of it which might have needed some modifications as did the Constitutional scientists and the members of the Expert Legal Review Committee and would have avoided too frequent changes of the Constitution, because sooner or later there will be other amendments necessary or at least thought to be necessary anyway. If, however, issues concerning internal policy do not find a unanimous approach amongst political parties, it will be desirable for avoiding the slowing down of the European integration process to separate the supplementations related to accession to the European Union from other amendments. This was finally the path Estonia had to take: given that there was no common position amongst political forces at that time on the need for amendment of the Constitution in issues other than the European integration, only the amendments concerning the EU accession were prepared which was perhaps one of the reasons together with the lack of time, why the text of the Constitution itself remained at the end untouched. There are many ways how to specify the relationship between a Member State together with its legal order and the European Union. Some of these different ways on example of the previous accessions and Member States were more or less considered in Estonia. For example the Constitution may be amended using specifically the concept of the European Union or talking about international law in general. The latter alternative was however rightly set aside since it is excluded by the peculiarity of the European Union and its legal order as well as the danger that otherwise we could delegate a portion of our sovereignty also to some other organisation or union in the future, without specifying its name and essence in particular. Another much seriously regarded option was to amend specifically all the Articles and sections of the Constitution that may cause any conflicts. This would however have made the situation unnecessarily complicated and also psychologically hard to accept for the people, without making use of the opportunity to interpret the Constitution proceeding from cumulative effect of its provisions. To use this very detailed work-demanding option would have been not only time consuming but would have also risked harming the stability of the Constitution since it is almost impossible to find out and to solve all the possible contradictions between the Estonian constitution and the EU law at once. The possibility to apply a very specific method to establish superiority and primacy of the European law by the Constitution −
9
Julia Laffranque a proposal of some foreign experts21 − was correctly rejected as it seemed an approach of too extreme character unreasonably encumbering for the Constitution. However it would have been highly welcome to confine oneself only to single provisions within the text of the Constitution dealing with the European Union and excluding therewith any conflicts through cumulative effect of different provisions of the Constitution. These provisions could have been structured as part of the chapter on foreign relations and international treaties22 or in a new chapter covering the European Union, which could have been brought into the Constitution.23 The two last mentioned possibilities were to my mind the most serious alternatives to the option that was finally chosen. But the method preferred in the end won over the others with its uniqueness and simplicity. A rather laconic wording was used that simply enables Estonia’s accession to the European Union according to the Accession Treaty. This was not done by deleting or adding something to the text of the Constitution but as an independent Constitutional Act attached to the Constitution. On 16 May 2002, 74 members of the Estonian parliament initiated the amendments to the Constitution in the shape of a ‘Third Constitutional Act’ which passed the first reading on 11 June 2002, the second reading on 12 November 2002 and was adopted on 18 December 21 McKenna & Co. Commission of the European Communities Directorate-General for External Economic Relations, Operational Service PHARE Proposals Paper Brussels and London to the Ministry of Justice and the Ministry of Economics of the Republic of Estonia. Approximation of Legislation: Constitutional Amendments, September 1996. 22 It has been proposed by the Expert Legal Review Committee to supplement Chapter IX of the Constitution ‘Foreign Relations and International Treaties’ with § 123’ of the following wording: ‘Estonia may delegate authorities of state power arising from the Constitution to bodies of the European Union on the principle of reciprocity and equality for their joint implementation by the member states of the European Union to the extent necessary for application of treaties serving as the foundation of the Union, and on the condition that this does not contradict the foundational principles and tasks of Estonian statehood provided by the Preamble of the Constitution. The Government of the Republic shall inform the Riigikogu as early and extensively as possible about issues concerning the European Union and take account of positions of the Riigikogu at participation in preparation of legislation of the European Union. A more specific order shall be established by law upon membership of the Republic of Estonia.’ 23 Laffranque, J. ‘Constitution of the Republic of Estonia in the Light of Accession to the European Union.’ Juridica International, No 4 (2001), p. 207−221.
10
The Constitution of Estonia and Estonia’s Accession to the European Union 2002 together with a decision to put the amendments on the referendum. The amendments were called ‘Third Constitutional Act’ because until that the Estonian Constitution consisted of two Acts − the Constitution and the Implementation of the Constitution Act. The latter may be treated as a constitutional act because some of its provisions are not implementation provisions in their character, but will always remain valid. The Constitution of the Republic of Estonia Amendment Act passed 14 September 200324 has a following wording: At a referendum held on 14 September 2003 on the basis of Article 162 of the Constitution of the Republic of Estonia the people of Estonia adopted the following act amending the Constitution: Article 1. Estonia may belong to the European Union in accordance with the fundamental principles of the Constitution of the Republic of Estonia. Article 2. As of Estonia’s accession to the European Union, the Constitution of the Republic of Estonia applies taking account of the rights and obligations arising from the Accession Treaty. Article 3. This Act may be amended only by a referendum. Article 4. This Act enters into force three months after the date of proclamation.
Although according to the title the Constitution will be amended by the Amendment Act, the actual text of the Constitution will remain the same, only it will be interpreted in line with the EU law in the light of the Amendment Act. The Preamble of the Amendment Act reflects the idea behind the ‘Third Act’ and its purpose. The reference to Article 162 of the Constitution underlines that the Amendment Act itself can be amended only by referendum. Article 3 of the Amendment Act repeats the same − the only procedural way to amend the Act is by popular vote. Actually is this precision from the purely legal point of view unnecessary since the amendments adopted by referendum based on Article 162 of the Constitution can anyhow later be amended only by a referendum. On the other hand, for the people, in whom the supreme power of the state is vested, it is of course important to know already by reading the text that only the people
24
RT I 2003, 64, 429. 11
Julia Laffranque themselves can change it and thus Article 3 stresses the importance of the text as well as the responsibility of the people to make the decision.25 The wording of Article 1 of the Amendment Act was drafted based on the proposal of the Legal Chancellor of Estonia, Allar Jõks. According to the Legal Chancellor, Estonia should within the European Union respect the general principles and values laid down in the Estonian Constitution and also the European Union to which Estonia wishes and accepts to join, should respect the general principles of the Constitution of Estonia. Laying down to a certain extent criteria to which the European Union should meet so that it would be possible for Estonia to join the European Union, makes it possible to draw a certain parallel between Article 1 of the Amendment Act and Article 23 of the Constitution of the Federal Republic of Germany. Initially, based on the German example, the Legal Chancellor proposed to list the values and principles such as democracy, rule of law etc. in the wording of Article 1 of the Amendment Act. The Constitutional Committee of the Riigikogu nevertheless rejected an exhaustive list of the principles and preferred a general reference since the general principles can already be found in the Preamble and the first chapter as well as in Article 10 of the Constitution and thus avoided a repetition of the constitutional principles in the Amendment Act. Article 2 of the ‘Third Act’ regulates the relationship between the EU law and the Estonian law, as well as the application of the Constitution in relation to the citizens and institutions of the European Union and also the implementation of the directly applicable EU law in Estonia. This Article comprises the duty of Estonia to follow the rights and obligations of the EU membership in accordance with and to the extent that is stipulated in the Accession Treaty. Symbolically seen Article 2 of the Amendment Act represents a bridge between the European and Estonian legal systems, in particular between the Estonian Constitution and the founding treaties of the European Union. Article 4 of the Amendment Act proceeds from Article 167 of the Constitution, which foresees a special regulation for the entry into force of constitutional amendments since there exists no ordinary procedure. According to Article 167 of the Constitution the President of the Republic proclaims the Amendment Act which usually takes place after the referendum and right after all the disputes about the referendum have been solved and 25
Laffranque, J.; Madise, Ü.; Merusk, K.; Põld, J.; Rask, M. ‘Põhiseaduse täiendamise seaduse eelnõust’ (Draft Act to Amend the Constitution), Juridica, No 8 (2002), p. 563.
12
The Constitution of Estonia and Estonia’s Accession to the European Union the outcome of the referendum has been finalised and made official. The amendments then take effect on the date stipulated by law but no earlier than three months after the proclamation by the president. In the case of the described Amendment Act, therefore a shortest possible period given by the Constitution was chosen to enforce the amendments. Considering the political sensitivity of the controversial topic about the amendments to the Constitution because of Estonia’s accession to the EU and the little time left before the accession, the solution of the ‘Third Constitutional Act’ can be considered highly satisfactory. The advantages of this solution lay in the simplicity and speed. At a first glance, amendment of the Constitution itself may seem psychologically more acceptable, as this would correspond better to the principle of legal clarity and would grant stronger legitimacy in the eyes of the people than adoption of a constitutional act supplementing the Constitution. On the other hand it would not occur so dramatic as would the change of the actual text of the Constitution, especially considering the general reluctance against the major changes in the written constitution. The positive aspect is also the uniqueness of the Amendment Act − no Member State before has adopted such a separate constitutional act on interpretation of the Constitution in the light of the EU membership. Thus Estonia did not copy any already used models but rather invented its own original solution. As a weakness of the ‘Third Constitutional Act’ its unambiguous text may be pointed out which leaves quite a space for interpretation, and the fact that it is not sure for how long in the future the Amendment Act will be sufficient to cover the relationship between the Union and Estonia. Namely, according to the statements made during the deliberations of the Amendment Act in the Parliament, the Amendment Act reflects only the European Union as it is/was during the adoption of the Accession Treaty. 26 This would mean that the further developments in and of the European Union would not exclude further modifications of the Estonian Constitution. It would have been ideal of course to adopt amendments that would be ‘future secure’ and enable already to look further into tomorrow, especially as there is a draft Treaty on the Constitution of the European Union. Another disadvantage of the ‘Third Constitutional Act’ is its laconic wording, which to a certain extent seems to be insufficient, considering the peculiarity of the European Union and the need for specification on a constitutional level of the roles of 26
MP Nutt, M. during the deliberations in the Parliament, see the stenograph:
accessed on 20 December 2002. 13
Julia Laffranque Estonian State institutions at dealing with European Union issues. Now the relationship between the Riigikogu and government of Estonia in EU matters has to be stipulated by laws only. 4. Criticism about the Referendum and Amendment Process: How will the Amendment affect life as a Member State? Success of the substantial Constitutional amendments depends greatly upon the procedure used to amend the Constitution. The procedural solution of a referendum originated from the fact that the first Chapter of the Constitution and the principles thereof including Article 3, which refers to the supremacy of Constitution and laws in Estonia, can only be amended by a popular vote. Chapter XV of the Constitution regulates amendment of the Constitution of the Republic of Estonia. Pursuant to it the right to initiate an amendment rests only with not less than one-fifth of the membership of the Riigikogu (21 members) and with the President of the Republic. Amendment of the Constitution cannot be initiated through a referendum. An act amending the Constitution may be passed only either via referendum or by two successive compositions of the Riigikogu, or as a matter of urgency, by the Riigikogu upon four-fifths majority of the vote. Chapters I (General Provisions) and XV (Amendment of the Constitution) may be amended upon the initiative from the President or one-fifth of the membership of the Riigikogu only via referendum. But even while the people may adopt an amendment, this would be possible only if the Riigikogu prior decides to subject the amendment to a referendum. Thus the making of a decision upon carrying through a referendum is a parliamentary monopoly. To amend the Constitution is a long-lasting and complicated procedure, which is supported by the reason for stability of the Constitution. At the end however, both, the procedural and substantial amendments to the Constitution are of political nature, which as described above formed into a political will not before the end of 2002. At least it was generally decided that there should take place a popular vote on whether to accede to the EU or not. The government accepted the risk of arranging a referendum; this was supported by the parliament. However, according to Article 106 of the Constitution, the issues regarding the budget, taxation, financial obligations of the State, ratification and denunciation of international treaties, the declaration or termination of a state of emergency, or national defence shall not be submitted to a referendum. This means that in accordance with Article 106 of the Constitution it would have not been possible to submit the issue of ratification of the international treaty − and this is what Accession Treaty 14
The Constitution of Estonia and Estonia’s Accession to the European Union actually is − to a referendum, unless of course one changes firstly Article 106 of the Constitution itself. This would have meant two consequent changes of the Constitution – first to allow the ratification by a referendum and then the referendum together with constitutional modifications and therefore would have been to complicated and lengthy procedure. There was of course another option − to use Article 105 of the Constitution granting the Riigikogu the right to submit a bill or other national issue to a referendum as the legal basis for a referendum. Joining the European Union could definitely be classified as a national issue. Pursuant to the Constitution and the Referendum Act, the result of a referendum is mandatory for the state institutions. Finally it was clear that there was no need for two referenda and therefore, advocated by the former Minister of Justice, Märt Rask, the question on the accession to the EU and the amendments to the Constitution were put on the same referendum.27 On the one hand it was legitimate to argue that there should have been still two different questions on two referenda – the issue about the accession and the modifications of the Constitution, because they were based on two different Articles of the Constitution with different legal consequences: the answer to the question on national issue taking effect immediately after the results have been officially confirmed (a resolution made on another national issue submitted to a referendum shall enter into force on the date on which the results of the referendum are announced), the modifications of the Constitution not before three months after their proclamation by the President of the Republic. But on the other hand it was very logical to hold one referendum since one cannot separate the issue to join the EU from the amendments of the Constitution enabling such accession. For instance if the majority would have been in favour of the accession but against the amendments to the Constitution, then how could have Estonia joined the EU respecting still the rule of law and its Constitution in force? Similarly absurd situation would have occurred if the outcome of the referendum to join the EU would have been negative but the people would have voted in favour of the constitutional amendments – what need would there have been to still modify the Constitution if the accession does not take place. The idea of the ‘Third Constitutional Act’ as constitutional amendment and to combine the constitutional changes with the question on the accession to the EU was favoured by 88 of 101 members of the Parliament. There was only one vote 27
M. Rask, ’Kas muuta põhiseadust või mitte?’ (To change the Constitution or not to change?) Postimees, 16. January 2002. L. Hänni, ‘Jah, härra justiitsminister!’ (Yes, Mr. Minister!) Postimees. 22. January 2002. 15
Julia Laffranque against this compromise solution. So instead of asking: ‘Are you in favour of the EU accession?’ and ‘Are you in favour of adoption of the Constitution of the Republic of Estonia’ as two separate questions with two separate sets of possible answers ‘yes’ and ‘no,’ according to the decision of the Riigikogu from 18 December 2002, together with the text of the Amendment Act the following question was written on the ballots: ‘Are you in favour of accession to the European Union and of adoption of the Constitution of the Republic of Estonia Amendment Act?’ The parliamentarians insisted of including the words ‘European Union’ in the question since they thought that to ask simply about the amendments to the Constitution that would have been legally enough would have been not ‘popular’ enough and less people would attend the referendum. Therefore, on 14 September 2003, it was given to the people to decide finally about the EU accession so that they would also understand the meaning of this event. It was a historical day, because over ten years, since the adoption of the Constitution on 28 June 1992 there had been no referenda conducted in Estonia. In the history of the Republic of Estonia seven referenda have taken place altogether – five before World War II and two after, during the regaining of the independence in the beginning of 1990s. The Referendum of 14 September 2003 was the last, but one of the referenda on EU accession in the Central and Eastern European countries and Malta (with an exception of Cyprus all the other countries held a referendum), at the same day Sweden decided about accepting the euro and a week later Latvia was the last acceding country to hold a referendum. The day was chosen carefully in order to let the people enough time to get to know the conditions laid down in the Accession Treaty and give them time to return from the summer holidays. Without doubt the positive outcome of the referenda in other countries had significance as well. Regardless of the EU accession supportive government, the government decided to organize a EU neutral campaign, only the key persons of the state – the President of the Republic, the Speaker of Riigikogu and the Prime Minister adopted a joint declaration supporting publicly the EU accession. Other than that, the government disseminated neutral information about the European Union. The active campaign was launched not before the end of June. The outcome of the referendum – participation rate of 64.06 per cent; in favour of the accession 66.83 per cent and against 33.17 per cent − was according to the Constitution binding to all state institutions, thus this was in both cases, the accession to the EU and the amendments to the Constitution, a binding and not a consultative referendum. However, no quota for the participation rate was prescribed by the Constitution, the referendum would have been considered legally effective even if the participation rate would have been 16
The Constitution of Estonia and Estonia’s Accession to the European Union lower than 50 per cent. It remains debatable whether there would have been an obligation or not of the Riigikogu to dissolve in the case of a negative outcome of the referendum. The Constitution leaves the question with an open answer, although it stipulates clearly in Article 105 Section 4 that if a draft law submitted to a referendum does not receive a majority of votes in favour, the President of the Republic shall call extraordinary Riigikogu elections, the Constitution allows the details to be regulated by a Referendum Act. It is of course debatable, how far can a law go by stipulating further details of the constitutional rights and institutions. Article 64 of the Referendum Act of 13 March 200228 regulates that if a draft Act submitted to a referendum does not receive a majority of votes in favour, the President of the Republic shall call extraordinary Riigikogu elections, unless the authority of the composition of the Riigikogu which passed the resolution to submit the draft Act to a referendum has terminated. Although usually a referendum shall not be held at a time when less than 90 days remain until elections to the Riigikogu, a modification to the Referendum Act was made in October 2002 allowing a referendum on a draft Act to amend the Constitution or on another national issue to be scheduled for a time after the next elections to the Riigikogu, but still forbidding a referendum on another draft Act to be scheduled for a time after the next elections to the Riigikogu. And since the decision of the Riigikogu to hold a referendum and to amend the Constitution was made by a previous composition of the Riigikogu, then the new Riigikogu, elected in March 2003, was not responsible for the outcome of the referendum and thus would have not been necessarily dissolved if the people had voted against the EU accession. One point is however clear, if the people would have said no to the accession and Amendment Act, the Parliament could have not ratify the Accession Treaty, because according to Article 123 Section 1 of the Constitution Estonia does not conclude (interpreted as ratify) foreign treaties which are not in accordance with the Constitution, and since the Constitution without the Amendment Act would have not allowed Estonia’s accession, the Accession Treaty would have been in conflict with the Constitution. Another referendum on the same issue would not have been possible to organize before one year from 14 September, because according to Article 168 of the Constitution the Riigikogu shall not initiate an amendment to the Constitution regarding the same issue within one year after the rejection of a corresponding bill by a referendum or by Riigikogu.
28
RT I 2002, 30, 176; 57, 355; 90, 517. 17
Julia Laffranque Complaints against the local electoral committee about the procedure (thus indirectly the outcome) of the referendum can be filed to the National Electoral Committee; the Constitutional Review Proceedings Act stipulates that the decisions of the National Electoral Committee may be revoked at the Constitutional Review Chamber of the Supreme Court. Altogether eleven complaints were filed to the Supreme Court.29 In most of these cases the applicants asked for the annulment of the results of the referendum using different grounds. As mentioned above it is indeed arguable, whether it was legally correct to allow a question on the referendum which in essence includes two questions on two different, although connected, issues with two different enforcement procedures, especially since according to Article 30 of the Referendum Act there is no possibility to arrange a combined referendum on important national issue and amendments of the Constitution. Another and less convincible argument brought by the applicants to contest the results of the referendum was the fact that the accession to the EU could have not been decided prior to the amendments of the Constitution. In my opinion since it was actually done parallel and not prior to the amendments, there seems to be no conflict. Further ground on the annulment of the results of the referendum concentrated on the issues presented by the Euro-sceptics during their campaign such as: there is no possibility foreseen in the Constitution to amend it with a separate ‘Third Constitutional Act;’ the question put on referendum was in its essence a question on ratification of the Accession Treaty, but the Constitution explicitly forbids to ratify international treaties by referendum; the accession to the European Union constitutes a violation of the Estonian State sovereignty, the campaign of the government was not objective and the campaign of the EU opposition was too low financed; the State authorities did not give enough information about the essence of the European Union and the possibilities of other countries for example Russia joining the EU in the future. There were also attempts to question the constitutionality of the Accession Treaty. The Riigikohus did not satisfy any of the applications, furthermore, the court rejected most of them on formal-juridical bases. In most of the cases the deadline for 29
See the judgments of the Constitutional Review Chamber of the Supreme Court of Estonia from 2003 in the following cases: from 17.10.2003, No. 3-4-1-21-03; 14.10.2003, No. 3-4-1-19-03, RT III 2003,31, 316; 10.10.2003, No. 3-4-1-20-03; 03.10.2003, 3-4-1-14-03, RT III 2003, 29, 302; 03.10.2003, No. 3-4-1-17-03, RT III 2003, 29, 303; 02.10. 2003, No. 3-4-1-13-03, RT III 2003, 29, 299; 02.10.2003, 3-41-16-03, RT III 2003, 29, 300; 30.09.2003, No. 3-4-1-15-03; 29.09.2003, 3-4-1-1203, RT III 2003, 28, 287; 24.09.2003, No. 3-4-1-11-03, RT III 2003, 28, 286; 12.09.2003, No. 3-4-1-10-02.
18
The Constitution of Estonia and Estonia’s Accession to the European Union submitting the application was exceeded since the substantial issues could have been contested only within ten days of the adoption of the decision of 18 December 2002 of Riigikogu to hold a referendum and to amend the Constitution. The Supreme Court found namely with reason that the legal basis and the text of the question put on the referendum was a decision made by Riigikogu and not a decision of the National Electoral Committee on the outcome of the referendum. Indeed, if the deadline haven’t been exceeded and an application contesting the substance and wording of the question as well as the Amendment Act would have been failed earlier, it would have been interesting to see what the Supreme Court thought about it. However, since there was a political consensus over the wording and to a certain extent even juridical consensus on the highest level, considering the fact, that the legal chancellor took actively part in drafting the Amendment Act, none of the authorities eligible to doubt on the constitutionality of the question: the President of the Republic and the Legal Chancellor, did not contest the decision of Riigikogu. Of course, the constitutionality of the text amending the Constitution itself could have not been proved since it would be perfectly legitimate to change these parts of the Constitution by referendum in conflict of the existing Constitution and so the Amendment Act entered into force on 5 December 2003. Perhaps the opinion of the Riigikohus will be presented in future cases by interpreting the already in force ‘Third Constitutional Act’ although it would be very difficult to imagine the Supreme Court measuring how much the European Union would still meet the criteria, namely the fundamental principles of the Estonian Constitution such as for example maintaining the Estonian nation in the future, especially in the context of the Treaty establishing the Constitution of the European Union. As mentioned above, in my opinion, the Amendment Act does not indicate very clearly how open it is for the future developments in the EU and as it was pointed out during the deliberations in the Riigikogu, if the essence of the European Union changes compared to the European Union at the time when the Accession Treaty was signed, the Constitution of Estonia would need to be amended again and again by referendum. The limit of arranging the referendum and the protection against the abuse of the referendum finds itself within the Riigikogu, which has the monopoly to decide about the referendum so that in the end the nature of the future European Union has to be defined and interpreted by the parliament and or at the latest by the Supreme Court in case of a conflict. So far there has been no real need to implement or interpret the Amendment Act. It remains to be seen how far does the scope of the 19
Julia Laffranque application of the ‘Third Constitutional Act’ go and in which cases it is directly applicable. However some signs of possible problems are to be noticed. For example Article 36 Section 2 of the Constitution of Estonia states that no Estonian citizen shall be extradited to a foreign State, except under conditions prescribed by an international treaty and pursuant to procedure provided by such treaty and by law. Extradition shall be decided by the Government of the Republic. However, according to the EU Justice and Home Affairs Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between the Member States (in force since 1 January 2004)30, the decision about the extradition will be made by the courts and not by the executive. Thus, strictly speaking and notwithstanding the Amendment Act, the text of the Constitution of Estonia is in conflict with the European Arrest Warrant. How the amendments to the Constitution of Estonia will cope with the real life as a Member State of the European Union remains to be seen, as well as, whether the Estonian courts are satisfied with the on the Amendment Act relying EU law confirm interpretation of the Constitution by the civil servants of the executive responsible in preparing Estonian legal system to meet the requirements of the European Arrest Warrant. This is why there have been expressed some ideas that despite the ‘Third Constitutional Act’ there could be a need for a completely new Constitution of Estonia.31 Whether the rewriting of the Constitution would indeed make sense also because of the Constitutional Treaty of the European Union or would it be only a hobby of some bored constitutionalists who have some spare time after the exhaustive reforms in Estonian legal system, remains to be a topic of following papers.
30
OJ L 190, 18.07.2002. Maruste, R.; Albi, A. ’Eesti Vabariigi põhisedus Euroopa Liidu õiguskorras.’ (The Constitution of the Republic of Estonia in the legal system of the European Union), Juridica, No 1 (2003), p. 7. 31
20
Harmonisation of Lithuanian Electronic Communications (Telecommunications) Legislation with EU Law and Ensuring Its Harmonised Application Tomas Lamanauskas*
Contents 1. Introduction 2. Transformation of EU Acquis 3. EU Acquis Implementation in Lithuania 4. Regulation of Competition 5. Conclusions 1. Introduction 1 May 2004 will be the day when Lithuania together with its’ fellow EU accession countries will join the European Union. During accession negotiations Lithuania did not ask for any transitional measures in the telecommunications field.1 Therefore it shall ensure implementation of full European Union acquis in this field as of the date of accession. However 2003 brought major changes in the content of these obligations, because European Union acquis on telecommunications was entirely transformed by the expiring of the transposition period for legal acts constituting the ‘new’ European Union telecommunications (electronic communications) regulatory framework. Therefore it is necessary to explore the nature of the *
Tomas Lamanauskas is doctoral student at the International and European Law Department, the Faculty of Law, Vilnius University. The author is also employed by the Communications Regulatory Authority (RRT) under the Government of the Republic of Lithuania as the Head of the Legal Section. Views expressed in this article are of personal nature and in no way can be considered as reflecting views and/or official position of the Communications Regulatory Authority (RRT) and/or any other public authority of the Republic of Lithuania. 1 The Negotiation Position of the Republic of Lithuania ‘Telecommunications and Information Technologies’ (Negotiation Chapter No. 19) approved by the Decree No. 649 of the Government of the Republic of Lithuania of 5 June 2000 ‘On the Approval of the Positions of the Republic of Lithuania for the European Union Accession Negotiations’, Official Gazette of the Republic of Lithuania (Valstybơs Žinios) No. 47-1362, 09.06.2000. 21
Tomas Lamanauskas above-mentioned transformation and how Lithuania will be able to implement the changes on time. 2. Transformation of EU Acquis The ‘new’ EU framework for electronic communications (electronic communications) simplifies the complicated system of almost 30 fragmentary legal acts to six main directives and one decision (together with other implementing legal acts) – i.e.: 1. Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive);2 2. Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive);3 3. Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive);4 4. Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Services Directive);5 5. Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications);6 6. Directive 2002/77/EC of the Commission of 16 September 2002 on competition in the markets for electronic communications services;7 7. Decision 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio
2
OJ L 108, 24.4.2002, p. 33. OJ L 108, 24.4.2002, p. 7. 4 OJ L 108, 24.4.2002, p. 21. 5 OJ L 108, 24.4.2002, p. 51. 6 OJ L 201, 31.7.2002, p. 37. 7 OJ L 249, 17.9.2002, p. 21. 3
22
Harmonisation of Lithuanian Electronic Communications with EU spectrum policy in the European Community (Radio Spectrum Decision).8 The ‘new’ regulatory framework includes these main novelties: 1. The ‘new’ package expands the legal framework on telecommunications to all electronic communications infrastructure. Electronic communications besides telecommunications include transmission services in networks used for broadcasting; 2. The framework is based on the principle of technological neutrality and therefore seeks to differentiate applicable regulation, where possible, solely on the basis of market power of relevant undertakings but not on the basis of the technologies used to provide services. Therefore the ‘new’ framework blurs differences between regulation of fixed and mobile networks as well as between networks used for telecommunications and networks used for transmission of broadcasting; 3. The ‘new’ Directives simplifies market entry regulation by abolishing twofold individual licences and general authorisations system, provided for in the Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorizations and individual licences in the field of telecommunications services,9 and by establishing general authorisation-only system – i.e., Member States are forbidden to require that any advance explicit decision or any other administrative act permitting an undertaking to engage into telecommunications (electronic communications) activities prior to the commencement of such activities be issued. Only submission of a notification could be required. However the framework permits Member States to retain system of granting individual rights of use for radio frequencies and numbers; 4. The ‘new’ framework radically reforms system of ex-ante regulation of competition in the electronic communications (electronic communications) sector. The sui generis significant market power (SMP) doctrine, included in the ‘old’ regulatory package and stating that an undertaking enjoying 25 per cent (with some limited possibility to deviate) of a relevant market area defined in the 8 9
OJ L 108, 24.4.2002, p. 1. OJ L 117, 7.5.1997, p. 15.
23
Tomas Lamanauskas directives should be treated as a SMP undertaking, was changed by general competition law dominance (however for specific ex-ante regulatory purposes stilled named SMP) doctrine. The predetermined market areas were replaced by the possibility, granted to national regulatory authorities (NRAs) together with the European Commission, to define relevant markets according to competition law criteria. Moreover a set of obligations automatically imposed on SMP undertakings was transformed to a catalogue of obligations individually selected and imposed on each individual SMP undertaking on the basis of identified competition problem. It is important that Article 27 of Framework Directive foresees continuation of obligations imposed according to the ‘old’ regulatory framework and consistent review of them according to the rules of the ‘new’ framework; 5. The Universal Services Directive provides for the possibility to transfer telephone numbers in mobile networks (i.e., to retain a number while changing an operator) – mobile number portability. In the earlier Directives this feature was foreseen only for fixed networks. It is clear that the transformation of the EU legal framework changed the nature of Lithuanian obligations quite drastically. However the European Commission in the 9th Report on the Implementation of the EU Telecommunications (electronic communications) regulatory framework10 stated that Lithuania as with nine other candidate countries must clearly also ensure compliance with the new framework as from the date of accession. In this context it will be analysed how Lithuania is able to cope with this obligation hereinafter.
10 Commission of the European Communities. ‘Accession Countries’, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions. European Electronic Communications Regulation and Markets 2003. Report on the Implementation of the EU Electronic Communications Regulatory Package, COM(2003) 715 final, Brussels, 2003.
24
Harmonisation of Lithuanian Electronic Communications with EU 3. EU Acquis Implementation in Lithuania 1998 European Union acquis on telecommunications was finally implemented by the new edition of the Law on Telecommunications11 that came into force on 1 January 2003 – i.e., the date of final liberalisation of Lithuanian telecommunications market, when the last exclusive rights of Lithuanian incumbent AB ‘Lietuvos telekomas’ to be the only public fixed telephone network and service provider, granted in 1998, expired. The new regulatory framework is intended to be implemented in full as from the date of accession – i.e., 1 May 2004. For this reason the Concept of the Law on Electronic Communications12 and the Draft Law on Electronic Communications13 has been prepared and the final Law shall come into force on the above-mentioned date. Therefore it is clear that the position of Lithuanian governmental authorities is more or less in line with the position of the Commission of the European Communities on the implementation of the new regulatory package in accession countries. Moreover the analysis of the Concept and the Draft Law as well as the timeframe of their preparation shows that the plans of the Government of the Republic of Lithuania are realistic. It should be also mentioned that the Law on Telecommunications in force as from 1 January 2003 already includes many provisions drafted taking into account the provisions of the ‘EU’ legal framework. This Law establishes the system of number portability that also includes mobile number portability. The system of authorisation of telecommunications networks and services is generally in line with the provisions of the Authorisation Directive. The Law does not foresee a possibility to grant individual licences in order to permit market entry and notification requirement could be imposed only in respect of the activities predefined by the Communications Regulatory Authority.14 It establishes a clear and detailed system of granting of individual rights of use for frequencies and 11
Official Gazette of the Republic of Lithuania (Valstybơs Žinios) No. 75-3215, 26.07.2002. 12 The Decree No. 302 of the Government of the Republic of Lithuania of 10 March 2003 ‘On the Approval of the Concept of the Law on Electronic Communications of the Republic of Lithuania’, Official Gazette of the Republic of Lithuania (Valstybơs Žinios) No. 26-1039, 14 March 2003. 13 , accessed on 17 February 2004. 14 See: Tomas Lamanauskas, ‘Legal Aspects of Competition in the Lithuanian Telecommunications Market’, (29) Baltic IT&T Review, No. 2 (2003), p. 50.
25
Tomas Lamanauskas numbers including comparative and competitive selection procedures (i.e., public tenders and auctions). The Law also permits the Communications Regulatory Authority (RRT; Lithuanian NRA) to authorise usage of certain radio frequency bands on the basis of general authorisation rather than individual right of use. The conditions that according to the Law could be attached to a general authorisation as well as to rights of use are harmonised with the Annex of the Authorisation Directive. The only contradiction to the Authorisation Directive is a 28-day waiting period – i.e., the compulsory period between a submission of a notification and lawful commencement of activities – such a period is not allowed by the ‘new’ Directives.15 The new Law on Electronic Communications will delete this period. The one more important issue to be dealt by the Law on Electronic Communications – harmonisation of definitions – i.e., changing the telecommunications into electronic communications thereby clearly expanding the telecommunications regulatory framework in a horizontal way to include all information transmission networks and services.16 Therefore it seems that Lithuania is going to meet the target set by European Commission in the above-mentioned Communication17 to implement the requirements of the new regulatory framework (e.g., the system of authorisation of electronic communications networks and services authorisation regime), except the provisions on market analysis, by the date of the accession. However the implementation of provisions on market analysis (SMP designation, imposition of relevant obligations) is more complicated. Therefore the issues related to that subject will be further overviewed in this article separately. 4. Regulation of Competition In the 9th Report on the Implementation of the EU Telecommunications (electronic communications) Regulatory Framework18 the European Commission explained that in the case of the accession countries, it is possible to carry out the market analysis (including necessary consultation 15
European Commission. Directorate General Information Society. The Director General Robert Verrue. Letter to Minister of Transport and Communications of the Republic of Lithuania Mr. Zigmantas Balþytis (including attached Analysis of the Draft Law amending the Republic of Lithuania’s Law on Telecommunications). 24 May 2002. 16 Tomas Lamanauskas, ‘Telecommunications Turn into Electronic Communications’, (30) Baltic IT&T Review, No. 3 (2003), pp. 60−61. 17 Supra note 11. 18 Ibid.
26
Harmonisation of Lithuanian Electronic Communications with EU with the Commission and other national regulatory authorities according to Article 7 of the Framework Directive) according to the ‘new’ regulatory framework only once these countries have formally acceded the European Union. That opinion is logical because there is no legal basis for the powers of the European Commission vis-à-vis NRAs of the accession countries provided for in the ‘new’ Directives before the formal accession. Furthermore the Commission emphasised that the market analysis and review of obligations according to the new regulatory framework could be conducted effectively only on a condition that the requirements of the ‘old’ framework had been put in place. The European Commission anticipated that in order to meet their Community obligations in the electronic communications sector the accession countries would implement in full, and maintain in force until after the date of accession, the obligations on undertakings enjoying significant market power imposed according the provisions of ‘old’ framework as it is referred to in Article 27 of the Framework Directive and only after accession they would as soon as possible conduct (or complete) the market analysis and review of obligations in full conformity with the procedures of the ‘new’ framework. This opinion of the Commission logically reiterates the position presented to Lithuanian authorities in the course of discussing with the Commission the Draft Law on Telecommunications (now in force)19 and subsequent official notification of the European Commission position regarding implementation of the new EU regulatory framework,20 where the European Commission emphasised the necessity to implement certain indispensable provisions (‘the starting conditions’) of the earlier regime as is foreseen by the ‘new’ Directives (meaning Article 27 of the Framework Directive) by the date of accession at the latest. The position of the authorities of the Republic of Lithuania complies with the above-described view of the European Commission. Point 9 of the Concept of the Law on Electronic Communications establishes that the Law on Telecommunications was harmonised with the 1998 (‘old’) EU regulatory framework on telecommunications. Point 13.2 of this Concept states that obligations foreseen by the Law on Telecommunications applicable to the SMP undertakings shall be applied automatically without individual selection. According to points 27.2 and 27.3, the new Law on Electronic 19
Supra note 16. European Commission. Directorate General Information Society. The Director General Fabio Colasanti. Letter to Head of the Mission of Lithuania to the European Communities His Excelency Mr. O. Jusys. 18 July 2002. 20
27
Tomas Lamanauskas Communications should implement the new system of ex-ante competition regulation (it is implemented by Articles 15, 16, 17 and other of the Draft Law on Electronic Communications). Finally point 45 provides that it shall be ensured that upon entrance into force of the Law on Electronic Communications the obligations on SMP undertakings (‘starting conditions’) will remain in force as long as they are not withdrawn by the Communications Regulatory Authority upon completion of market analysis thereby ensuring consistent transition to a new regulatory system in compliance with the EU law. The transitional provisions are included in Paragraph 2 of Article 79 of the Draft Law on Electronic Communications. Despite this clear political motivation some provisions of the Law on Telecommunications bring some misunderstanding. In particular it is Paragraph 2 of Article 11 of the Law on Telecommunications that state that procedure of market analysis shall consist of these steps – market definition, analysis if a competition in that market is effective, identification of undertakings that enjoy significant market power in that market and imposition of one or several obligations foreseen in this Law on SMP undertakings. Although the Law directly explains the definition of significant market power in the same way as the ‘old’ directives do but other three steps are left unexplained. While carrying the first market analysis,21 according to the Law on Telecommunications, the Communications Regulatory Authority took into account the above-mentioned intention to implement the ‘old’ regulatory framework and interpreted the Law on Telecommunications in the light of the 1998 Directives. Therefore the Communications Regulatory Authority (RRT) defined market areas identified in the ‘old’ directives as relevant markets and imposed all obligations foreseen in the Law on identified SMP undertakings. However the Lithuanian Supreme Administrative Court in the later related proceedings stated22 that despite the Law on Telecommunications in force was adopted in order to implement the ‘old’ EU telecommunications regulatory package, but, having in mind the necessity to apply the 2002 EU telecommunications legal framework as from the accession of Lithuania to the European Union, the Law on Telecommunications shall be interpreted in 21
See: Diana Korsakaitơ, ‘Telecommunications Market Research: The Lithuanian Case 2002’, (29) Baltic IT&T Review, No. 2 (2003), pp. 46−49. 22 UAB ‘Bitơ GSM’ v. Communications Regulatory Authority (RRT), Case No. P112/2004 (2004), Lithuanian Supreme Administrative Court; UAB ‘Omnitel’ v. Communications Regulatory Authority (RRT), Case No. P1-14/2004, Lithuanian Supreme Administrative Court.
28
Harmonisation of Lithuanian Electronic Communications with EU the context of the ‘new’ EU Directives. Thus the Court concluded that the Lithuanian Law shall be interpreted in the sense as giving the Communications Regulatory Authority (RRT) a right to impose obligations on undertakings enjoying significant market power individually and obliging the national regulatory authority to justify imposition of certain obligations. Thus the Court clearly applied a principle of ‘indirect effect’. However it is important to mention that the adjudicated decision of the Communications Regulatory Authority was taken on 29 January 2003 – i.e. even before the transposition deadline for the 2002 EU electronic communications (telecommunications) regulatory framework established by Article 28 of the Framework Directive. Therefore it should be concluded that it is not clear what EU regulatory framework – ‘old’ or ‘new’ – should be considered as implemented by the Law on Telecommunications and that situation could be treated as in some way dangerous of hampering the necessity to create above-described ‘starting conditions’ or preconditions for the market analysis according to the ‘new’ EU regulatory framework – i.e. having valid obligations imposed on the date of accession. That danger proved true, as mobile operators were concerned,23 however the incumbent operator AB ‘Lietuvos telekomas’ did not succeed to avoid obligations.24 Therefore practically the main necessary obligations are established and could be reviewed as from the date of accession in compliance with Article 27 of the Framework Directive as explained in the above-mentioned European Commission’s Communication25. The most positive side of the described procedures of market analysis according to the Law on Telecommunications is the formation of judicial practice explaining application of the ‘new’ EU regulatory framework provisions on market analysis in Lithuania. This established judicial practice will make real implementation of the ‘new’ EU regulatory framework after the date of accession according to the Law on Electronic Communications much easier.
23 The decisions of the Communications Regulatory Authority (RRT) to declare largest mobile operator UAB ‘Omnitel’ as a SMP undertaking in mobile retail market and interconnection market were withdrawn by the courts and the proceedings concerning second largest operator UAB ‘Bitơ GSM’ on the date of writing this article was still pending. 24 AB ‘Lietuvos telekomas’ was late to appeal the decisions of the Communications Regulatory Authority (RRT), therefore the court did not even analysed the legality of imposition of obligations on the incumbent. 25 Supra note 11.
29
Tomas Lamanauskas One more minor peculiar issue in up-coming review of imposed obligations is the review of obligations related to the unbundling of a local loop. In the EU this obligation is regulated by the directly applicable Regulation (EC) No. 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop.26 However in the accession countries this Regulation could not be applicable directly. Therefore the relevant provisions were included in national legislation – namely in the Law on Telecommunications. Therefore it seems that this Regulation in the essence will never come into force in Lithuania, because on the date of accession (1 May 2004) it will become applicable in the Republic of Lithuania together with the review clause included in paragraph 2 of Article 27 of the Framework Directive that provides that for the purposes of this Regulation operators of fixed public telephone networks that were designated by their national regulatory authority as having significant market power in the provision of fixed public telephone networks and services under Annex I, Part 1 of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP),27 or Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment,28 shall continue to be considered ‘notified operators’ for the purposes of the Regulation until such a time as the market analysis procedure referred to in Article 16 of the Framework Directive has been completed. Thereafter they shall cease to be considered ‘notified’ operators for the purposes of the Regulation. However the Lithuanian SMP operator AB ‘Lietuvos telekomas’ was never designated as SMP under the above mentioned directives, because this directives at the moment of designation were not applicable of Lithuania. Therefore it seems that the Communications Regulatory Authority (RRT) will be obliged to review the relevant obligation established according to the Law on Telecommunications rather than the above-mentioned Regulation. Article 79 (2) of the Draft Law on Electronic Communications confirms this view.
26
OJ L 366, 30.12.2000, p. 4. OJ L 199, 26.7.1997, p. 32. 28 OJ L 101, 1.4.1998, p. 24. 27
30
Harmonisation of Lithuanian Electronic Communications with EU 5. Conclusions It seems that the Law on Telecommunications that will remain valid for no more than 16 months, despite some misunderstandings in its application in the essence, reached the goal to be a pre-accession tool that would create necessary ‘starting conditions’ to prepare Lithuanian authorities and market players for regulation of electronic communications activities according to the ‘new’ EU regulatory framework and make implementation of this package easier. Therefore the Lithuanian entrance to the EU and final transposition of these new directives will be rather a simple regulatory evolution than a revolution thus helping to make the transformation of national electronic communications (telecommunications) regulation smooth.
31
Stocktaking of EU Pre-Accession Monitoring Process, Citizenship Issues and Non-Citizens in Estonia and Latvia: a Litmus Test for European Union Human Rights Policy KristƯne Krnjma*
Contents 1. Introduction 2. Framework of Enlargement 2.1. Conditions for Candidate Countries 2.2. Components of Pre-Accession (1) Europe Agreements (2) Accession Partnerships 2.3. Human Rights Conditionality 3. Development of Citizenship Policies in the Baltic States: Implications by Accession 3.1. Historical Context 3.2. Monitoring of the EU: Review of Regular Reports (1) Access to Citizenship (2) Rights of Non-citizens 4. Outlook for the Future 5. Concluding Remarks 1. Introduction 1 May 2004 will mark the conclusion of the biggest enlargement of the European Union (EU) so far.1 Ten new candidate States from Central and Eastern Europe will join as full-fledged members. The accession process has been a lengthy one due to a number of reasons. The more detailed and coordinated approach taken for this enlargement was unavoidable, especially *
Lecturer of International Law at the Riga Graduate School of Law and lecturer of EU Law at University of Latvia. Doctoral student (LL.D.cand) Lund University and Riga Graduate School of Law; M.I.L., University of Lund; LL.B. University of Latvia. I would like to thank Prof. Ineta Ziemele for her most useful comments and suggestions while writing this article and Christopher Goddard for making my English more sensible 1 Denmark, Ireland, the UK (1973), Greece (1981), Spain, Portugal (1986), Austria, Finland, and Sweden (1995). 33
KristƯne Krnjma because of the number and diversity of candidates both among themselves and as compared to previous applicants.2 Other reasons can also be mentioned. For instance, the EU is more closely integrated than it was even a couple of years ago. Its competence extends to even more spheres, such as health protection, consumer protection, education and alike. In addition, the socialist past of the Central and Eastern European countries (CEEC) had to be taken into account. Moreover, the risks of integration in twice as big a Union as existed at the time of establishment needed to be considered. These examples will serve as illustrations. However, even after enlargement the future of the European Union remains unclear. The ongoing discussions on the Constitutional Treaty reveal significant disagreements between ‘old’ and ‘new’ members as well as between old States themselves. Moreover, certain topics have not yet even entered the larger debate. This might lead to troubling conclusions. When asked whether the troubles of the European Union mean the end of the idea of a single European project, F. Fukuyama responded ‘What troubles? It’s just bargaining. This project is a long-term one, and whatever setbacks occur, they’ll keep at it. I [do] think there’s going to be a natural evolution in the European Union . . . That’s just the consequence of expansion. And I think that in many ways, in the long run this expansion is quite hopeful’.3 It can be argued that one of the issues which deserves discussion is human rights policy, and human rights monitoring in particular. It can also be submitted that there are human rights issues which have the potential to become a part of EU human rights policy as a result of enlargement. While the first attempts to assess human rights performance by EU Member States have been launched, they face limits from the lack of general competence in the field of human rights, and risks of unnecessary overlapping. Considerable writing focuses on how these issues should be tackled. Thus, P. Alston and J.H.H. Weiler suggest that internal and external policies need a unified approach, embracing both dimensions of the Union’s approach to human rights. They argue that the internal and external dimensions of human rights policy can never be satisfactorily kept in separate compartments and
2
Inglis, K. ‘The Pre-Accession Strategy and the Accession Partnerships’ in Ott, A., Inglis, K. (eds.) Handbook on European Enlargement, The Hague, T.M.C. Asser Press, 2002, pp. 103−113 at p. 103. 3 Fukuyama, F. ‘The Last Word. Looking to the End of History’, Newsweek, 29 December−5 January 2004, p. 100.
34
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia they are, in fact, two sides of the same coin.4 A. von Bogdandy, though, is proposing a triple human rights standard. This, firstly, would include the standard applied by the EU to foreign States in its conduct of foreign policy. The second standard has to be applied to the mechanisms through which the Union monitors and controls the general human rights performance of its Member States. The third regime remains with the Member States, given their crucial function in the national legal orders and political cultures.5 It has also been suggested that imposing different standards on applicant countries from current Member States does not provide the EU with a great deal of legitimacy, and could store up problems for the enlarged EU.6 Uncertainty might have unnecessary consequences. As suggested by J. Packer, in his capacity of Legal Adviser to the OSCE High Commissioner on National Minorities, ‘we have serious concerns that if there is not an EU internal human rights assessment process and if there is not a continual annual reporting, new States which become EU members might feel less pressure to meet those human rights standards’.7 The aim of this article is to take stock of what the EU has achieved during the pre-accession process. Special focus will be put on the cases of Estonia and Latvia and changes in their citizenship policies in the course of the pre-accession monitoring process. After stocktaking, the problems remaining will be identified, along with a sketch of future prospects for long lasting human rights monitoring by the EU.
4
Alston, P., Weiler, J.H.H. ‘An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights’ in Alston, P. (ed.) The EU and Human Rights, Oxford, Oxford University Press, 1999, pp. 4−9. 5 von Bogdandy, A. ‘The European Union as a Human Rights Organization?: Human Rights and the Core of the European Union’, 37 Common Market Law Review (2000), p. 1317. 6 Smith, K.E. ‘The Evolution and Application of EU Membership Conditionality’, in Cremona, M. (ed.) The Enlargement of the European Union, Oxford, Oxford University Press, 2003, p. 120. 7 Packer, J. ‘Report from the EU Human Rights Forum, 30.11-01.12.1999’, quoted after Heidbreder, E.G., Carrasco, L. Assessing the Assessment. A Review on the Application Criterion Minority Protection by the European Commission, Working Paper No.2003/W/4, Maastricht, European Institute of Public Administration, 2003, p.23. 35
KristƯne Krnjma 2. Framework of Enlargement 2.1. Conditions for Candidate Countries Human rights in the EU context were first referred to in a Maastricht Treaty Article. Specifically, Article F (2) of the Treaty on European Union (TEU) noted the Union’s obligation to respect fundamental rights. The Treaty of Amsterdam slightly changed this Article, adding a system of penalties for Member States that seriously or persistently violate these principles (Article 7 TEU). The principle of this innovation has its origins in the Reflection Group; this was seen as a necessity connected with the accession of new members lacking a long democratic tradition, where democracy might prove precarious.8 Under Article 49 TEU, ‘any European State which respects the principles set out in Article 6 (1) may apply to become a member of the Union’. Article 6 (1) TEU enumerates the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law as founding principles for both the Union and its Members. In order to ensure that candidate States meet the requirements set out in the Treaty articles, the EU developed the so-called pre-accession process. 2.2. Components of Pre-Accession The whole pre-accession process was based on Association agreements between the candidate countries and the EU (the so called ‘Europe Agreements’) as well as enforced pre-accession strategy. (1) Europe Agreements The Europe Agreements were the basis of the Union’s relations with the particular States. All Europe Agreements (or association agreements) are based on Article 310 EC Treaty – the Treaty provision on ‘association’ – and are mixed, that is to say they are signed by the Community and the Member States on the one hand and the associated country on the other. The main aim of the agreements is to prepare the associating State for membership. Initially the EU institutions considered these Agreements as an alternative to membership rather than part of pre-accession strategy.9 The Europe 8
Petite, M. ‘The Treaty of Amsterdam’ http://www.law.harvard.edu/Programs/ JeanMonnet/ papers/98/98-2-07.htm., accessed on 16 March 1998. 9 Muller-Graff, P.C. ’Legal Framework for Relations between the EU and Central and Eastern Europe: General Aspects’, in Maresceau , M. (ed.), Enlarging the EU,
36
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia Agreements signed between 1993 and 1996 i.e., after the 1993 Copenhagen Summit − remained largely unaffected as regards their structure, content, and wording by the new policy orientation of the EU on the question of enlargement.10 (2) Accession Partnerships As far as the relation to the Europe Agreements is concerned, the declaration made by the European Council in Copenhagen in 1993, and supplemented in Essen in 1994, contains essentially a political reorientation of the strategy of the Union, and hence a reinterpretation of the Agreements on the part of the Union.11 The need for pre-accession strategy was confirmed in 1994 by the European Council in Essen, where it was stated that ‘The European Council has decided to boost and improve the process of further preparing the associated States of Central and Eastern Europe for accession’.12 The structure and contents of the strategy were further elaborated by the Luxembourg European Council, which envisaged the launch of the accession processes on 30 March 1998. It was stated that the ‘accession process will form part of the implementation of Article O (now Article 49) of the Treaty on European Union’.13 The key instrument of the strategy was Accession Partnership (AP), which aimed to identify priorities for each applicant during adoption of the Union acquis as well as exploring pre-accession aid. AP marked a reorientation from association to accession.14 All other activities in the field of the pre-accession process, including financial assistance, had to be in conformity with APs, their priorities and strategies.15 Therefore, while Relations between the EU and Central and Eastern Europe, London, Longman, 1997, p. 34. 10 Maresceau, M. ‘Pre –accession’, in Cremona, M. (ed.) The Enlargement of the European Union, Oxford, Oxford University Press, 2003, p. 15. 11 Maresceau, M., Montaguti, E. ‘The Relations Between the European Union and Central and Eastern Europe: A Legal Appraisal’, Common Market Law Review 32 (1995), p. 1332. 12 Presidency Conclusions. European Council Meeting on 9 and 10 December, 1994 in Essen , accessed 29 December 2003. 13 Presidency Conclusions. European Council meeting in Luxembourg on 12 and 13 December, 1997. Available on Internet , accessed 29 December 2003. 14 Supra note 2, p. 106. 15 For instance, Council Regulation 622/98 on assistance to the applicant States in the framework of the pre-accession strategy (OJ1998 L85/1) as well as Council Regulation 1266/1999 on coordinating aid to the applicant countries in the 37
KristƯne Krnjma the other instruments of the reinforced pre-accession strategy are not an integral part of APs, they must be compatible with AP priorities, principles, objectives, and conditions.16 2.3. Human Rights Conditionality A significant novelty introduced into the pre-accession process was the socalled human rights conditionality.17 In addition to protecting the club, ‘membership conditionality’ is used by the EU as a foreign-policy instrument, to influence applicant (and future applicant) countries’ domestic and foreign policies.18 Notwithstanding that the Union had, at least since the early 1970s, included respect for human rights, any express conditionality remained elusive.19 This was mainly because potential candidates at the time of earlier enlargements did not pose any major problems from the human rights perspective. The situation became different when it was acknowledged that countries from the ex-Soviet block were willing to join the EU. Human rights conditionality in the Europe Agreements is expressed by so called human rights (HR) clauses read together with suspension clauses.20 framework of the pre-accession strategy, and amending Regulation 3906/89 (OJ 1999 L 161/68). The most important may be Regulation 3906/89 establishing the PHARE programme (1989 L 375/11). 16 Supra note 2, p. 107. 17 Some researchers prefer to call it soft political co-ordination. See in particular Riedel, E., Will, M. ‘Human Rights Clauses in External Agreements of the EC’, in Alston, P. (ed.) The EU and Human Rights, Oxford, Oxford University Press, 1999, p. 741. 18 Supra note 6, p. 108. 19 Williams, A. ‘Enlargement of the Union and human rights conditionality: a policy of distinction? (25) European Law Review, December (2000), p. 602. 20 Model suspension clause is contained in Europe Agreements with Latvia and Estonia (Articles 123 and 122 respectively) ‘2. If either Party considers that the other Party has failed to fulfil an obligation under this Agreement, it may take appropriate measures. Before so doing, except in cases of special urgency, it shall supply the Association Council with all relevant information required for a thorough examination of the situation with a view to seeking a solution acceptable to the Parties. In the selection of measures, priority must be given to those which least disturb the functioning of this Agreement. These measures shall be notified immediately to the Association Council and shall be the subject of consultations within the Association Council if the other Party so requests.’ Europe Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Latvia, of the other part, signed in Brussels June 1995, Official Journal L 026, 02/02/1998 P. 0003 – 0255, and Europe
38
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia A HR clause makes ‘respect for the democratic principles and human rights as defined in the Helsinki Final Act and Charter of Paris for a New Europe’ an essential element of the agreement, thereby enabling a party to suspend or terminate such an agreement in connection with failure by the other party to comply with those standards. The principal value of HR clauses is to ensure that the human rights dimension of an issue is taken into account whenever relevant.21 However, any clarity in definition of the human rights referred to within the context has remained elusive. There was a marked absence of any concrete measures designed to promote human rights per se or even to set out the scope of the rights that were to be considered. The Copenhagen European Council of 1993 issued three accession criteria for the candidate countries. The first criterion stated that ‘a candidate country should have achieved stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities’.22 There is a view that the Copenhagen criteria have been largely meant either to assist in establishing democracy and the rule of law or to postpone inevitable enlargement Eastwards.23 What can be concluded is that, by adding political criteria, the EU has departed from legal formulation of human rights conditionality in Europe Agreements and shifted to a politically dominated intergovernmental approach in regard to candidate countries. This represents a dangerous trend since an effect of subsuming human rights under foreign and security policy is confidentiality, typical for certain foreign and security matters, but detrimental for human rights.24 Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Estonia, of the other part, signed in June 1995, Official Journal L 068, 09/03/1998 P. 0003 – 0198. 21 The model/standard clause was adopted by the Commission only in 1995 (See COM (95) 216 final). The practice is not yet entirely consistent, but the rule of law, human rights, and democracy are set out as the ‘basis of’ or ‘essential to’ those agreements. See McGoldrick, D. ‘The European Union after Amsterdam: The Organisation with General Human Rights Competence?’ in McGoldrick, D. (ed.) Legal issues of the Amsterdam Treaty, Oxford, Hart Publishing, 1999, p. 260. 22 Bulletin of the European Community, 6/1993, at I.13. 23 Vachudova is saying that ‘Among EU leaders, there is a tension between using the conditionality of EU accession as a tool to build democratic, prosperous states in Central and Eastern Europe and using the shortcomings of the candidates to delay the enlargement’. Vachudova, M.A. ‘EU Enlargement: An Overview’, East European Constitutional Review, Vol. 9. No.4, Fall 2000, accessed on 6 January 2002. 24 Tomaševski, K. Between Sanctions and Elections, The Hague, Martinus Nijhoff Publishers, 1997, p. 50. 39
KristƯne Krnjma Similarly to the Europe Agreements, the Copenhagen European Council left the content of the conditions quite vague. Elaborating upon them was the European Commission’s job. The Commission’s first detailed explanation of what the conditions actually meant is provided in ‘Agenda 2000’ of 1997, which contained the Commission’s opinions on the membership applications of the ten CEE countries.25 In this context it is important to note that in assessing applications for accession, the opinion of the Commission is of particular significance. Moreover, it is based on evaluation of compliance with the ‘Copenhagen criteria’. However, the Commission’s analysis is conducted on a case-bycase basis due to the absence of any clearly established, objective evaluation criteria.26 It has also been noted that there is a general absence of any systematic and coherent approach to monitoring the actual human rights situation in the accession candidate countries, as compared to the requirements contained in the bilateral association agreements, or on the concrete implementation of projects financed by the EU.27 G. Pentassuglia argues that international instruments appear as material sources for an overall, pragmatic assessment rather than parameters for a strictly legal analysis.28 He also rightly notes that overall EU practice concerning implementation of a policy of human rights conditionality is fundamentally based on economic and political − rather than legal and judicial − criteria.29 The reason for this unfortunate situation could be the lack of legally defined standard, which would clarify the EU’s approach to human rights. Possibly the practice would have been different if the Charter of Fundamental Rights existed already at that time. In terms of sources the Commission opted not to use the European Convention of Human Rights and Fundamental Freedoms (ECHR). The Statute of the Council of Europe clearly imposed (and did so from the start) 25
Supra note 6, p. 115. Pentassuglia, G. ‘The EU and the Protection of Minorities: The Case of Eastern Europe’, European Journal of International Law, Vol. 12 No.1 (2001), p. 23. 27 See supra note 4, p. 13, and Lenaerts, K. ‘Fundamental rights in the EU’, (25) European Law. Review, no. 6 (December 2000), p. 597. There is yet another view expressed by Maresceau and Montaguti, saying that in comparison to other regions, e.g., the Mediterranean, the case of the accession of CEE countries the EU was able to formulate a clear policy which is illustrated by the chain of events and decisions that paved the way for the integration of CEE countries, see supra note 11, at p. 1327. 28 Supra note 26, p. 21. 29 Supra note 26, p. 22. 26
40
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia democracy and human rights conditions for accession. In practice, however, the admissions policy of the Council of Europe proved to be rather lax, as was exemplified by the controversial accessions of Croatia, Russia, and countries of the Caucasus region.30 Instead, the Commission rather refers to a variety of sources of human rights protection, including other Council of Europe Conventions and OSCE documents. At the same time it leaves open the relative importance it chooses to give to these various instruments in coming to its assessment.31 The Commission generally refrains from quoting from any source, while facts are never to be taken directly from another document but undergo a process of crosschecks with other sources.32 In conducting its monitoring the Commission is not constrained by Article 6 TEU. A systematic interpretation of Article 6 as a whole indicates that in addition to all norms contained in the ECHR, which is explicitly referred to in Article 6 (2),33 economic and social rights are also included within the scope of EU supervision.34 The inclusion of minority rights is, however, more problematic due to various reservations attached by Member States to minority clauses in human rights instruments and the incomplete record of ratifications of those instruments.35 Arguably, minority protection is one of the criteria extending some way beyond that which falls within the European Union’s internal concerns. Some call it both dangerous and potentially divisive.36 The overall accession procedure, according to A. Williams, outlines that rights scrutiny and information collection for the applicant States has 30
de Witte, B. ‘The Impact of Enlargement on the Constitution of the European Union’ in Cremona, M. (ed.) The Enlargement of the European Union, Academy of European Law, European University Institute, Oxford University Press, 2003, p. 229. 31 Ibid., p. 237. 32 Heidbreder, G.E., Carrasco L. Assessing the Assessment. A Review on the Application Criterion Minority Protection by the European Commission, Working Paper No. 2003/W/4, Maastricht, European Institute of Public Administration, 2003. Nowak, M. ‘Human Rights ‘Conditionality’ in Relation to Entry to, and Full participation in, the EU’, in Alston, P (ed.) The EU and Human Rights, Oxford, Oxford University Press, 1999, p. 693. 34 Brandtner, B., Rosas A. ‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice’, European Journal of International Law 9 (1998), pp. 468−490. 35 Ibid. 36 Williams, A. ‘Enlargement of the Union and human rights conditionality: a policy of distinction? (25) European Law Review, December (2000), p. 602. 41
KristƯne Krnjma developed into a sophisticated policy, one without parallel in the EU itself.37 As argued by Cameron, accession negotiations do not aim at an agreement between the Union on the one hand and an external partner on the other, as is the normal case in international negotiations, but with the way in which an applicant country will function as a member.38 It can be argued that the EU has a notion of ‘special responsibility’39 towards CEE countries and it, most notably the Commission, is playing the role of the ‘friend who tells the truth’.40 This approach has both good and problematic sides, which will be outlined further. 3. Development of Citizenship Policies in the Baltic States: Implications by Accession The Regular Reports (RRs) of the Commission focus on a number of aspects of human rights performance in the candidate countries. In relation to minority protection alone, the issues discussed cover protection from discrimination, citizenship, language, education, employment, health and housing, political participation, and media. Citizenship issues have played the most significant role under the section on minority rights in the reports on Latvia and Estonia. However, placing citizenship under the section of minorities is not only incorrect from the legal point of view but even dangerous. In particular, it might lead to misleading conclusions. Citizenship and minority rights belong to two different compartments of international and human rights law. Therefore, sometimes the RRs produced are confusing and difficult to follow. Generally, the discussion of citizenship can be differentiated into, on the one hand, the attachment of certain rights to citizenship and, on the other hand, the access to citizenship in general. Before analysing the particular statements in RRs a short historical note should be made on the issue of citizenship in Latvia and Estonia.
37
Supra note 19, p. 614. Cameron, F. ‘The Commission Perspective, The Challenge of Enlargement: The View from Brussels’, in Gower, J., Redmond, J. (eds.) Enlarging the European Union: the way forward, Ashgate, Dartmouth, 2000, pp. 13−26. 39 Sadelmeier, U. ‘East of Amsterdam: The Implications of the Amsterdam Treaty for Eastern Enlargement’, in Neunreither, K., Wiener A. (eds.) European Integration after Amsterdam, Institutional Dynamics and Prospects for Democracy, Oxford : Oxford University Press, 2000, p. 219. 40 Supra note 38. 38
42
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia 3.1. Historical Context On regaining independence in 1991, Latvia and Estonia inherited large Russian speaking communities from the former USSR.41 It was submitted that an automatic conferral of USSR nationality on the population of the Baltic States as a consequence of their annexation in 1940 was unlawful under international law as long as the Baltic States were presumed to exist.42 In order to secure continuity of statehood from the 1920s, these States adopted nationality legislation to deal with Soviet-era settlers, and created a special category of people called ‘non-citizens’. Only those persons who themselves or whose parents possessed Estonian or Latvian nationality before 16 and 17 June 1940 respectively, i.e., the day of the Soviet invasion followed by annexation, had been presumed to be nationals.43 However, the Latvian and Estonian approach to nationality was heavily criticized by different international organizations. Complex citizenship issues were even the reason for postponing Latvian membership in the Council of Europe.44 It can be argued that criticism voiced was not directed towards nationality laws as such. It rather highlighted the consequences the approach is causing to considerable part of society leaving them de facto stateless, excluded from active political life. However, the methodology that was adopted by international organisations lead to confusion. They referred to rights of minorities and issues of citizenship not separately but interchangeably. After some intervening changes in the Law on Citizenship, a new Law was enacted in Estonia on 19 January 1995, entering into force on 1 April 41
For a comprehensive analysis of legal aspects connected with the occupation and regaining of independence of the Baltic States consult the Baltic Yearbook of International Law, Volume 1 (2001) The Hague, Kluwer Law International. For an overall analysis of citizenship issues in all three Baltic States consult Ziemele, I. ‘State continuity and nationality in the Baltic States: international and constitutional law issues’, Ph.D. Dissertation, Cambridge, October 1998. 42 Ziemele,I. ‘State Continuity, Human Rights and Nationality in the Baltic States’, in Jundzis, T. (ed.) The Baltic States at Historical Crossroads, 2nd ed., Riga, Academy of Sciences of Latvia, 2001, p. 233. 43 Latvia re-established citizenship in accordance with the 1919 Law on Citizenship on the basis of the Supreme Council’s Resolution On the Renewal of the Republic of Latvia Citizen’s Rights and Fundamental Principles of Naturalization, on 31 October 1991. Estonia identified its nationals on the basis of the 1938 Law on Citizenship. 44 Opinion No. 183 (1995) on the application by Latvia for membership of the Council of Europe, . 43
KristƯne Krnjma the same year.45 It recognised as Estonian citizens all individuals who in one way or another had acquired Estonian nationality at the time of enforcement of the Law. It also provided that any alien could apply for naturalisation in Estonia.46 Latvia adopted its citizenship law in August 1994.47 According to Article 2, citizens of Latvia are persons who were Latvian citizens on 17 June 1940, their descendants, Latvians and Livs whose permanent place of residence is Latvia, women who lost their citizenship because of the Citizenship Law in 1919, foundlings, as well as naturalised persons. The law provided for gradual naturalisation, the so-called ‘window system’. This approach was adopted because it was expected that considerable numbers of non-citizens would apply for Latvian citizenship and civil servants would not be capable of ensuring proper application of the law. However, the reality turned out to be quite the opposite, and once again amendments to the Citizenship laws were advocated. Assessments of Estonia’s or Latvia’s laws against international norms were many. These were accompanied by more numerous recommendations with regard to facilitating access to citizenship for so called ‘non-citizens’. The European Union ‘expressed grave concern at certain aspects of the law of foreigners adopted in Estonia and the law on citizenship adopted in Latvia’.48 Non-citizens are persons who were USSR citizens but who after 1991 did not qualify for Latvian or Estonian citizenship and who, moreover, did not acquire Russian or any other citizenship.49 In Estonia there is no specific law on non-citizens, although aliens with a permanent residence permit enjoy the same status as non-citizens in Latvia. Their status is somewhat more than permanent residents, however, although not yet citizens. For instance, in Latvia they enjoy diplomatic protection of Latvia as well as all human rights granted to citizens except political rights and the right to practice certain professions. In Estonia non-citizens, just as all permanent residents, have the right to vote in local elections. Neither Latvia and Estonia provides rights for non-citizens to hold public office at national or municipal levels. While Estonia also excludes their right to join political parties, Latvia 45 Law on Citizenship, accessed on 10 July 2003. 46 Supra note 42, p. 234. 47 Law on Citizenship, Official Gazette nr.93, 11 August 1994. 48 Tomaševski, K. Responding to Human Rights Violations, The Hague, Martinus Nijhoff Publishers, 2000, p. 341 and European Commission – General Report on the Activities of the European Union 1994 Brussels/Luxembourg, 1995, para. 759. 49 Law on the Status of Former USSR Citizens who are not Citizens of Latvia or any Other State, Official Gazette nr. 63, 25 April 1995.
44
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia has included a condition that a party must have at least 200 citizens as members. Moreover, in Latvia non-citizens are not allowed to practice some professions such as judge50, court bailiff51, attorney52, notary53, prosecutor54, police officer55, state security officer56 and others.57 In addition there are restrictions on ownership of land, social rights, entrance to higher educational establishments, and repatriation. Estonia has provided for a number of limitations in its Constitution. According to the Estonian Constitution, non-citizens, if that is provided by law, might not enjoy on an equal footing with citizens the right to state assistance in the case of old age, inability to work, loss of a provider, or need (Article 28), to choose his or her sphere of activity, profession, and place of work, or to hold offices in state agencies and local government, or to engage in enterprise or to form commercial undertakings and unions (Articles 29−31). 3.2. Monitoring of the EU: Review of Regular Reports (1) Access to Citizenship In the 1998 Regular Report (RR) on Latvia’s progress towards accession, the Commission notes that the ‘rate of naturalization has continued to be slow’. This was partially attributable to the ‘window system’, which limited the number of persons who could apply for citizenship. Therefore, being under consistent international pressure coming from the UN Commission on Human Rights, the Council of Europe, the OSCE High Commissioner and − most notably − the European Union, Latvia amended its Citizenship Law in 1998. The RR of 1998 notes that ‘[o]n 15 April 1998, the Government took a number of important decisions in order to speed up the citizenship and naturalization procedures, in response to recommendation in the 50
Article 51 of the Law on Judicial Power, Official Gazette, no. 3. 1, 14 January 1993. 51 Ibid. 52 Law on the Bar, Official Gazette, no. 28, 19 August, 1993. 53 Article 20 of the Law on Notaries, Official Gazette no. 26/27, 5 July 1993. 54 Article 33 of the Law on the Public Prosecutor, Official Gazette no. 65, 2 June, 1994. 55 Article 2 of the Law on the Police, Official Gazette, no.31, 15 August, 1991. 56 Article 18 of the Law on State Security Institutions, Official Gazette, no. 59, 19 May 1994. 57 These include captain of airplane crew, captain of vessel, land surveyors, armed security guard, fireman, and private detective. 45
KristƯne Krnjma Commission Opinion and based on assessments by international organizations such as the OSCE’. Amendments, confirmed in a referendum, became effective in November 1998. These amendments abolished the ‘window system’, provided citizenship for children born in Latvia after 21 August 1991 to stateless persons or non-citizens, and simplified naturalisation procedures. In accordance with Article 3, parents of children under the age of 15, should submit an application for acquisition of citizenship. According to the Commission, this means that ‘Latvia fulfils the internal obligations contained in the 1966 International Covenant on Civil and Political Rights, the 1989 Convention of the Rights of the Child, and the 1961 Convention on the Reduction of Statelessness’. However, as noted in the Commission’s Report of 1999, this did not result in any increase in the number of applications. The reason for this, in the view of the Commission, is that parents wish to naturalise at the same time as their children. In relation to Estonia, the 1998 RR notes with regret that ‘the Parliament has not yet adopted the amendments to the Citizenship Law which would align it with OSCE recommendations and facilitate naturalization of stateless children’. Similarly to Latvia, feeling international pressure Estonia amended the Citizenship Law on 8 December 1998, the amendments entering into force on 12 July 1999. This was duly noted also in the 1999 RR, which stated: ‘As recommended by the Commission’s 1998 RR, the Estonian parliament adopted amendments to the Citizenship Law on stateless children on 8 December 1998’. Pursuant to the amendments, children under the age of 15 born on Estonian territory after 26 February 1992 could acquire Estonian nationality on the basis of a declaration if their parents are stateless and have been legal residents of Estonia during the previous five years. Notwithstanding these legislative efforts, as well as investment of both governments and the EU in language training, campaigning for citizenship, and the like, the number of applicants for naturalisation remained unsatisfactorily low. As noted in the RR on Latvia in 2001, ‘the number of applications received in 2000 was considerably smaller. Altogether, since 1995, around 47,000 persons have been naturalized to date. This is despite the fact that several important measures to further the naturalization procedures were taken this year concerning language tests, naturalization fees, language training and information’. Nor did the situation change during 2002, as noted in the RR. A similar trend has also been identified in Estonia. In the RR of 2001 it is stated that ‘the rate of naturalization had been decreasing significantly over the past few years’. The RR of 2002 on Estonia concluded that the rate of naturalisation appears to have stabilised at a low
46
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia level of around two per cent (3,000−4,000 persons) of resident non-citizens per year. It can be concluded that generally the developments in Latvia and Estonia have been promising. However, they have not brought the expected positive outcome to the maximum possible extent. Therefore, the latest RR on Latvia and Estonia continue to emphasise the need to integrate noncitizens and conduct language-training programs for non-Latvian speakers. (2) Rights of Non-citizens Taking into account the slow pace of naturalisation, the numbers of noncitizens are still quite large; in Latvia there are about 500,000 non-citizens, with 150,000 in Estonia. Various attempts to speed up naturalisation of noncitizens have not proved successful. Within the last eight years, the number of non-citizens has not diminished much, especially in Latvia. In Estonia during the last three years the number of non-citizens decreased only by 25,000. It can be argued that the emphasis the Commission places on the issue might be partially explained by the large numbers of non-citizens and unwillingness to import to the Union the problems which affect so many individuals. However, from the monitoring point of view this is the issue where the Commission is running into problems due to the misleading methodology it has adopted by treating citizenship under the heading of minorities. The Commission has taken a close look on non-discrimination issues in relation to non-citizens. The report on Latvia in 1998 notes that ‘a number of areas were underlined in the Commission’s Opinion in which non-citizens were treated differently from citizens’ and acknowledges that certain progress has been achieved. The major issues raised were concerning the ‘Law on Amnesty’, abolition of professional restrictions for non-citizens to work as fire-fighters, airline staff, pharmacists, and veterinary pharmacists. In this context the RR also mentions the Council of Europe Framework Convention for the Protection of National Minorities. Although this Convention might have certain relevance in case of non-citizens, it is nowhere explained in the Reports. Moreover, in the case of Latvia, this appears for the first time only in the Report of 2000, where the Commission notes the decision of the Latvian Parliament in May 2000 not to ratify the Council of Europe Framework Convention for the Protection of National Minorities for the moment due to inconsistencies between Latvian legislation and certain provisions of the Convention. Regrettably, the Commission has not elaborated on this decision and has not put an obligation on Latvia to
47
KristƯne Krnjma ratify the Convention.58 Indeed, the approach followed by the Commission in the 2001 RR is rather odd. It is stated that ‘Latvia signed the European Convention on Nationality in May 2001 but introduced reservations on certain aspects related to the acquisition of Latvian citizenship’. The legal significance attached to the fact of reservations at that stage remains unclear. Without elaborating further, the Commission states that ‘in March 2001 the Latvian Parliament rejected a renewed proposal to ratify the Council of Europe Framework Convention for the Protection of National Minorities’. Only in the RR of 2002 did the Commission urge Latvia to ratify the Framework Convention, noting that ‘no significant new developments regarding the transposition and implementation of the anti-discrimination acquis can be reported’ Since Estonia has ratified the Framework Convention in January 1997 (in force since 1 February, 1998) the Commission for the first time mentions it only in RR of 2002. It reflects on the conclusions of the Committee of Ministers that ‘protection of persons belonging to national minorities was not always addressed in an adequate manner in the legislative process and administrative practice. The Committee indicated that further efforts were needed in order to promote the process of naturalization, bearing in mind that the number of stateless persons remained high’. The references in the latest reports to the Framework Convention and even its monitoring body indicate that the Commission was gradually raising the standard against which the new candidate States were evaluated. 4. Outlook for the Future As stated at the outset, enlargement will be completed by 1 May 2004 but there still remain problems as to both the scope of the human rights obligations and their substantive evaluation. The main issues that can be identified are the following:
58
Latvia signed the Convention in 1995. Since then ratification has been discussed several times but delayed for political reasons. The main reason mentioned is the lack of definition of ‘minority’ in Latvia. However, there is a view among academics that it does exist and does not create any problems. See Ziemele, I. ‘MazƗkumgrupu tiesiskƗs aizsardzƯbas nodrošinƗšana LatvijƗ: dažas mƗcƯbu stundas Eiropai’ (Ensuring the legal protection of minorities in Latvia: some lessons for Europe), Likums un TiesƯbas Vol. 3, no. 10(26) October, 2001.
48
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia • • •
The risk remains that new Member States might depart from high standards of human rights protection when monitoring is no longer conducted. In certain fields the EU itself provokes a decrease in human rights standards in the new Member States. The long-term effects of double standards applied during the pre-accession process in relation to old and new Member States remain to be seen.
A few remarks on each of these problematic issues would now be appropriate. A reading of the latest RRs reveals that there is not a single one among the candidate countries in which the human rights situation is considered to be entirely satisfactory, and accompanying Accession Partnerships all continue to list human rights policy goals among their ‘priorities’.59 At least in relation to Latvia the requirement set by the Commission finally to ratify the Framework Convention on the Protection of National Minorities should certainly be kept in force. On analysing the contents of the Reports, it is easy to notice that in certain cases new issues appear at a very late stage. The best example in this context might be amendments to the Language Law of Estonia. These were adopted only in 1999 (RR of 1999) and raised serious concerns especially for the EU since this could affect even the application of the Europe Agreements. In relation to the possible decrease in standards, the most evident example is treatment of non-citizens. In the European Union this group is considered as nationals of non-Member States, the non-Member State here being Estonia or Latvia respectively. The Commission when explaining the scope of persons covered by the Directive on Rights of Third Country Nationals60 stated that ‘the expression ‘third country national’ covers all persons who are not citizens of the Union in the sense of Article 17 paragraph 1 of the EC Treaty, that is to say those who do not have the nationality of an EU Member State . . . This indicates that persons with undermined citizenship come within the scope of the directive’.61 Of course, 59
Supra note 30, p. 232. Directive concerning the status of third-country nationals who are long-term residents. The Council reached political agreement on this text at its meeting on 5 June 2003 (2001.0074 (CNS) 10214/03 MIGR 45). One delegation maintained a parliamentary scrutiny reservation. 61 Letter of the Directorate-General Justice and Home Affairs, European Commission to the Permanent Delegation of Latvia in the institutions of EU, 23 June 2003, on file with author. 60
49
KristƯne Krnjma it can be argued that Latvia and Estonia themselves could propose to the EU an agreement or submit an explanatory declaration in relation to status and treatment of non-citizens. However, taking into account the developments in the past the absence of such initiative is understandable.62 It can also be submitted that − by adopting a different methodology and dealing with citizenship issues separately − the Commission itself might arrive at a different conclusion. The restrictive approach, though, results in confusion for non-citizens. Firstly, the legal qualification of non-citizens as third country nationals − where the third country is a EU Member State − is cumbersome. Until now Latvian non-citizens have enjoyed, for instance, diplomatic protection on the same basis as citizens. The non-citizen passport not only provides the special status of belonging to a State but has also been recognised by some countries as sufficient for a visa-free regime (for instance, Denmark). The status of third country national will place noncitizens in a less favourable situation in relation to diplomatic protection compared to citizens. Their passport will no longer signify a special status but will become equal to a residence permit held by any third country national elsewhere in Europe. Secondly, it remains to be investigated whether the rights given to non-citizens will not be diminished in the EU if they were considered to be third country nationals. Presently they enjoy the same rights as citizens except political rights. For instance, non-citizens of Latvia cannot be deported, which is not the case with third country nationals. In turn, non-citizens of Estonia who can vote in local elections will not be able to do so in certain other EU Member States. This situation might not only raise confusion but also the question of legitimate expectations of noncitizens. Thirdly, while RR put an obligation on the candidate countries to make an effort both political and financial to promote the integration of noncitizens, the EU itself has taken a rather cautious approach. The Directive on Third Country Nationals puts an obligation63 on third-country nationals to comply with integration conditions, in accordance with national law, and gives the right to Member States to require such compliance. However, the consequences of non-compliance are unclear because this option is not
62 There is an argument that Latvia (and Estonia) could even become a frontrunner in helping the EU to develop its concept of the EU citizenship as well as the policy for protection of minorities. See supra note 58 and Ziemele I., Krnjma K. ‘Eiropas SavienƯbas pilsonƯba un Latvijas nepilsoƼi’ (EU citizenship and Latvian noncitizens), Jurista VƗrds, Nr.33(291), 16 September 2003. 63 Article 5.
50
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia provided in Article 9 on withdrawal or loss of status or in Article 12 on conditions of expulsion of third country nationals. These observations lead to the next issue, namely the possible consequences of double standards applied to old and new Member States in relation to human rights scrutiny. While the new candidates were subjected to close scrutiny of their human rights performance by the EU institutions, the situation of old Member States was quite different. They had a duty to observe fundamental rights directly contained in the EC Treaty (nondiscrimination on grounds of nationality and the principle of equal pay for work of equal value), secondary EC law (directives on gender discrimination) and general principles of Community law wherever the States implement Community law. In each of these situations the human rights standard was linked to a specific competence of the EC. However, there are still many policy areas in which the Member States act entirely autonomously and are therefore not subject to an EU-based fundamental rights standard.64 The number of such areas, though, is decreasing. For instance, minority rights can no longer be considered as being a blind spot in Community law.65 It can be argued that the process of integration and enlargement will lead to the situation where even more human rights issues will be brought within the scope of EU law: these would include the rights of children, detainees, and others. There have already been calls for the need for more detailed standards, their scope extending the scrutiny applied to candidate countries also to EU member States,66 and even proposals for suitable mechanisms.67 The first 64
Supra note 30, p. 234. For an excellent approval of this statement see Hofmann, R. ‘National Minorities and European Community Law’ Baltic Yearbook of International Law Vol. 2 (2002) The Hague, Kluwer Law International, pp. 159−175; as well as the cases C-274/96 (1998) Horst Bickel and Ulrich Franz, ECR I – 7650 and C-281/98 (2000) Roman Angonese v. Cassa di Risparmio di Bolzano, ECR I-4139. 66 See in particular report by Open Society Institute, Monitoring the EU accession process, 2001: Minority protection: Country reports, EU Accession Monitoring Program, Budapest, Central European University Press, 2001, at p. 16; A. von Bogdandy and B. de Witte consider the Charter of Fundamental Rights as a central for monitoring Human Rights within the EU; see supra note 30, p. 238. 67 For instance the proposals of European Parliament included in its Draft Treaty proposals in 1984 and The Report of the three ‘wise men’ after the Austrian crisis which suggested the establishment of a Human Rights Office with reporting obligations as well as establishment of a Human Rights Commissioner. For details see supra note 30, at p. 227; and Gaja, G. ‘New Instruments and Institutions for 65
51
KristƯne Krnjma attempts to apply comprehensive monitoring to both old and new Member States have been launched. The European Parliament has stated that it ‘has used the Charter as a template for its annual reviews of the situation as regards fundamental rights in the EU’.68 This is done under the authority of Article 7 (1) TEU, which entitles the Parliament to monitor respect for human rights and fundamental freedoms on the part of the Member States. In its resolution of 5 July 2001 on the situation as regards fundamental rights in the European Union (2000), the European Parliament recommended that a network be set up consisting of legal experts who are authorities on human rights and jurists from each of the Member States in order to assess the implementation of the Charter of Fundamental rights. The first report produced by the EU Network of independent experts in fundamental rights is already available69 and provides an excellent analysis of the situation. The introduction states that the report does not reflect the opinion of the European Commission, nor does it bind it. However, the contribution that might be made by experts is quite visible not only in relation to sound implementation of Article 7 TEU but also to equal treatment from all Member States as regards the Union’s legal requirements. While the plan and ambitions of the European Parliament are high,70 the practical results of monitoring remain to be seen.71
Enhancing the Protection of Human Rights in Europe?’ in Alston P. (ed.) The EU and Human Rights, Oxford, Oxford University Press, 1999, pp. 781−801. 68 European Parliament resolution on the impact of the Charter of Fundamental Rights of the European Union and its future status (2002/2139 (INI)), Minutes of 23 October, 2003, P5_TA(2002)0508, A5-0332/2002. 69 See the Report under the auspices of Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs. Available at accessed 06 January, 2004; also available in printed edition Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, Luxembourg, Office for Official Publications of the European Communities, 2003. 70 See European Parliament resolution on the situation as regards fundamental rights in the European Union (2002) (2002/2013 (INI)) Minutes of 4 September 2003, P5TA(2003)0376, A5-0281/2003. 71 Especially because the Charter, as it stands, by no means is complete and precise. As correctly stated by Lord Goldsmith ‘it identifies, but does no define the rights which are applicable at EU level’. For critical reviews of the Charter see Lord Goldsmith QC. ‘A Charter of Rights, Freedoms and Principles’ and Douglas Scott, D. ‘The EU Charter of Rights: A Poor Attempt to Strengthen Democracy and Citizenship?’ in Andenas, M., Usher, A.J. (eds.) The Treaty of Nice and Beyond.
52
Stocktaking of EU Pre-Accession Monitoring Process: Estonia and Latvia Critics might argue that this is advocating for yet another Commissioner72 or another standard of human rights protection. Indeed, the success of a monitoring mechanism and the standards set will have a crucial role for both coordination with international organisations working in the human rights field in order to avoid overlapping and the added level of protection internally in the Union and its Member States. However, the present situation does not support any other realistic alternative. 5. Concluding Remarks In relation to the protection of human rights it can be concluded that enlargement has been beneficial for candidate States as well as the European Union. In order to become members of the Union, the CEE countries were obliged to observe suggestions made by the EU institutions for legislative and policy actions. In turn the EU, when preparing for the new wave of accession, strengthened the human rights features of the EU Treaty and other documents. This moment shall not be ‘a peak of’ human rights monitoring in the EU but rather ‘another step towards’ consistent human rights policy in both internal and external EU activities.
Enlargement and Constitutional Reform, Oxford and Portland, Oregon, Hart Publishing, 2003, pp. 387−423. 72 Presently there is a External Relations Commissioner (C. Patten) has responsibility for human rights. There is also a Human Rights unit in the DG for External Relations. 53
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe Claire Salignat*
Contents Preface 1. Introduction 1.1. Hypothesis 1.2. Structure 2. A Contextual Approach to the Interactions 2.1. The EU Charter of Fundamental Rights 2.2. A Brief Review of the ‘History’ of the Community Law Status under the ECHR (1). A First Phase of Rejection of Control (2) The ‘Equivalent Protection’ Doctrine (3) A Control over Acts that Cannot be Challenged within the EU Framework 3. The Impact of the EU Charter on the Council of Europe 3.1. The Impact over the Role of the Council of Europe (1) A ‘Threat’ to its Role A threat to its credibility The rise of a competition The persistence of a crucial role The fundamental necessity of an external control The crucial role of ‘link’ (2) A Stimulus to Redesign its Role and Rethink its Future A reorientation of its role A future role dependent on the scope of application of the EU Charter *
Student in Political Science in Lyon from 1999 to 2002 (IEP de Lyon). Trainee in the Unit “Citizenship and Fundamental Rights” in Directorate General of Justice and Home Affairs at the European Commission from October 2003 to March 2004. Admitted to the European Master’s Degree Programme on Human Rights and Democratisation in Venice in 2004. This article is based on a dissertation written in 2003 within a framework of the Master’s Programme at Sussex European Institute at the University of Sussex, Brighton, United Kingdom. I owe many thanks to the professors of this Institute for their help and advice. 55
Claire Salignat 3.2. The Impact over the Evolution of the Jurisprudence (1) The ECHR as a Source of Inspiration for the EU (2) The EU Charter as an Influence for the ECHR Jurisprudence (3) A Mutual ‘Influence Circle’ 3.3. The Impact on Legal Certainty (1) Problems Pre-existing to the EU Charter (2) The Effects Caused by the EU Charter Two courts and two instruments The difficulties linked to the interpretation The difficulties linked to the balance between standards 4. The Council of Europe Reactions to these Inputs 4.1. The Favourite Reaction: Pressure for an EU Accession to the ECHR (1) The Council of Europe’s Lobby over EU Accession (2) The Underlying Difficulties 4.2. The Reaction through the Possibility of an Extension of Review over Community Law 5. Conclusion Preface This article is based on the dissertation I submitted in September 2003 for my Master in Contemporary European Studies at the Sussex European Institute (UK). The main sources are articles in specialised legal reviews and interviews conducted in Strasbourg and in Brussels. I must underline that Françoise Tulkens has been extremely helpful in indicating interesting and relevant interviewees. I want to thank Jörg Polakiewicz, Judge Marc Fischbach, Johan Callewaert, Gilles de Kerchove, Clemens Ladenburger, Alain Brun and Aristotelis Gavriliadis for the time they kindly gave to me and for their enlightening advice and explanations. Finally, I also want to thank my supervisor Marie-Bénédicte Dembour for her crucial advice. 1. Introduction In 2003, the European Union (EU) is at an historical turning point; the ‘draft treaty establishing a Constitution for Europe’1 could change the balance of 1
This article will consider the last version of the draft, as submitted by the Convention on the future of Europe to the President of the European Council in Rome on 18 July 2003, (doc CONV 850/03.) available at .
56
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe power between European organisations. The recognition of the Charter of Fundamental Rights of the European Union (EU Charter) in Article 7 (1) of the Constitutional draft2 leads to the acceptation of its legally binding character. Therefore, it is of particular relevance to examine the possible consequences of these new developments across the EU ‘environment’ and to examine the extent to which it is modifying the fundamental rights protection ‘landscape’ in Europe. The Council of Europe is an intergovernmental organisation to which any European States can become a member, provided it accepts the principle of the rule of law and guarantees human rights and fundamental freedoms to everyone under its jurisdiction. It is a European-wide organisation currently covering 45 States. The Council of Europe’s most significant achievement is the European Convention on Human Rights (ECHR)3, an international treaty adopted in 1950, which came into force in 1953.4 The European Union has a unique status among other international organisations, it is not a federal State but it is much more integrated than an intergovernmental organisation. It was created as an economic organisation, finding its legitimacy on economical grounds. 1.1. Hypothesis This EU evolution does not occur in a vacuum, it not only has remarkable repercussions on its Member States but also on other organisations such as the Council of Europe. The EU ‘is becoming increasingly active in sectors hitherto considered to be within the statutory remit of the Council of Europe’.5 Thus, Europe is currently witnessing the coexistence of two major organisations. The Council of Europe is an ‘old’ and experimented 2
Article 7 (1) of the Constitutional draft: ‘The Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II of the Constitution.’ 3 This name will sometimes be used instead of the full official name ‘Convention for the Protection of Human Rights and Fundamental Freedoms’. 4 The European Court of Human Rights is now directly accessible to the individual and its jurisdiction is compulsory for all contracting parties. It sits on a permanent basis and deals with all the preliminary stages of a case. It delivers judgements and let the supervision of their execution to the Committee of Ministers. 5 Para. 4, Recommendation 1578 (2002), Parliamentary Assembly, Assembly debate on 24 September 2002 (27th Sitting). 57
Claire Salignat organisation, specialised on the protection of human rights in Europe but dependent on the help of Member States as regards implementation. On the other hand, the European Union is emerging as a major actor in the Human Rights area, a new field of intervention for this organisation, but with means of enforcement superior to those of the Council of Europe. This coexistence can be analysed through the scope of the complimentarity or through the focus of competition. This future overlap will undoubtedly have an impact on the current repartition of powers and competences between these two different institutions. The word ‘impact’ will be understood as covering all possible repercussions involved by the EU Charter that can change, destabilise or influence the current organisation, ‘setting up’ of the Council of Europe in the future. This thesis is based on the hypothesis that the Council of Europe is again at the edge of dramatic developments that can either boost its role or lead it to its decline. This article will concentrate on the possible impacts of the imminent legally binding character of the EU Charter, which is, by far, the most important evolution of the EU in the protection of fundamental rights. 1.2. Structure This article will endeavour to assess the various impacts of the EU Charter on the organisation of the Council of Europe. It will examine its ambivalent effects on the Council of Europe’s role, its positive impact over the jurisprudence and its dangerous repercussions on legal certainty. Finally, it will present the reactions implied by these inputs, it will show how the Council of Europe took this opportunity to re-launch the EU accession debate. It will also assess to what extent the Council of Europe will try to ‘retaliate’ through the extension of review over community acts. 2. A Contextual Approach to the Interactions 2.1. The EU Charter of Fundamental Rights The most recent step is the proclamation of a catalogue of human rights for the EU: the EU Charter of Fundamental Rights.6 It was proclaimed solemnly in Nice in December 2000 but was not given legal force, which means it is a 6
This Charter has been drafted by a ‘body’ composed of representatives from national governments, national parliaments, the European Parliament and the Commission, and with observers from the Council of Europe and from the ECJ.
58
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe declaration not binding for the Community. It is organised into seven chapters (Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights, Justice, General Provisions). The legal status of the Charter has been one main subject of the Convention on the Future of Europe and the proposition, as it now stands, is the incorporation of the whole Charter in the second part of the Constitution (Article 7 (1)). Such a place would lead to a full and unquestionable legally binding status. However, it can be underlined that even before the confirmation of such a legal status, the Charter of Fundamental Rights has been used by the Court of First Instance as an additional evidence of the status and relevance of the right to good administration and the right to an effective remedy. Another development is embodied by the implementation of a ‘fundamental rights test’ used by the European Commission. Indeed, from now on, all legislative propositions are submitted to a prior ‘compatibility test’ with the rights of the Charter. 2.2. A Brief Review of the ‘History’ of the Community Law Status under the ECHR (1) A First Phase of Rejection of Control It has been widely argued that, even if all its Member States are part of the ECHR, the European Union in itself is not bound by the ECHR because it is not part of it. The first approach of the European Commission on Human Rights, when facing complaints brought against the EC, has been to reject applications against the EC and the EU because of failure to comply with the ‘ratione personae’ requirement.7
7
Complaints can only be brought against High-Contracting parties: Article 34 – Individual applications ‘The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High-Contracting parties of the rights set forth in the Convention or the protocols thereto. The High-Contracting parties undertake not to hinder in any way the effective exercise of this right’. See CFDT v. European Community, application number 8030/77, 10 July 1978. 59
Claire Salignat (2) The ‘Equivalent Protection’ Doctrine The next step is the recognition that applications, targeting EU Member States due to Community acts, will stay inadmissible as long as the European Community provides an ‘equivalent protection’ of fundamental rights.8 (3) A Control over Acts that Cannot be Challenged within the EU Framework A break in this brief history is embodied by the Matthews case.9 It concerned a complaint claiming for an indirect review of a Community act. Here, the European Court of Human Rights considered that it had the competence ratione materiae to check the compatibility of such an act with the ECHR. This case can be read in two ways. Each reading has different implications for the future status of Community law under the ECHR. Indeed, the act disputed here was an act of EC primary law on which the European Court of Justice had no competence. Thus, it can be considered as a clear ‘denial of justice’ and no equivalence can be found here at all. One conclusion could thus be that the European Court of Human Rights will feel having jurisdiction to review EC acts when they cannot be challenged before the Luxembourg Court.10 Nevertheless, when reading the case carefully, one can find no evidence showing a direct relation between the statement of absence of remedy and the finding of a breach. Thus, it could be held more widely that the Strasbourg Court is, from there on, ready to review any Community acts infringing the Convention rights. Under any circumstances, this case confirms the responsibility of EU Member States before the Convention as regards their implementation of Community acts, at least when acts cannot be reviewed by the Court of 8
See M. & Co v. the Federal Republic of Germany, application number 13258/87, 9 February 1990, ‘The Commission notes that the legal system of the European Communities not only secures fundamental rights but also provides for control of their observance’. 9 Matthews v. United kingdom, application no. 24833/94, 18 February 1999, the applicant complained a breach of her rights under Protocol 3, Article 1 (free elections for the ‘choice of the legislature’) by the United Kingdom government’s agreement, with the other Member States of the European Communities, to exclude Gibraltar from European Parliament elections. 10 Ibid., Matthews, § 33, ‘Indeed, the 1976 Act cannot be challenged before the European Court of Justice for the very reason that it is not a ‘normal’ act of the Community, but is a treaty within the Community legal order’.
60
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe Justice and at most, at any time when these acts are infringing the ECHR rights. 3. The Impact of the EU Charter on the Council of Europe The complexity of this research is linked to the difficulties of imagining and understanding the possible effects of the EU Charter on the Council of Europe. This Chapter will therefore present the range of impacts the EU Charter could have on the role of the Council of Europe, on the evolution of the jurisprudence and finally on legal certainty in Europe. 3.1. The Impact over the Role of the Council of Europe This part will assess the effects of the EU Charter on the evolution of the role of the Council of Europe. This impact is not obvious; one can find some evidence of the EU Charter constituting a serious challenge for the future role of the Council of Europe. However, one must not disregard the fact that the Council of Europe has major assets questioning the assertion of an undeniable decline. Finally, if it is clear that the Council of Europe will be forced to redesign its future role, the outcome is still uncertain as the scope of the effects of the Charter is not surely determined. (1) A ‘Threat’ to its Role A threat to its credibility My interviewees were always taken aback when I used the word ‘threat’ during my interviews (both in the EU and the Council of Europe). Nevertheless, some of them recognised that this EU Charter could have an undermining impact on the work and credibility of the Council of Europe. With the rise of the EU in the area of Fundamental Rights, some people asked if it still makes sense to maintain the Council of Europe. Can one go as far as to state that the future of the Council of Europe is ‘restricted’ and that it will mainly serve as a ‘pre-EU accession chamber’ for candidate States? Questioning the utility of this organisation, the Charter leads to the issue of the credibility of the Council of Europe.
61
Claire Salignat The rise of a competition Even if the word competition is banned from official speeches, one can find some evidence of an emerging opposition between the EU and the Council of Europe. A major impact of the EU Charter is the overlapping roles of the EU and the Council of Europe. This coexistence of two institutions in the same area of action involves competition between them and could consequently threaten the role of the Council of Europe. Indeed, even if it was stated that the EU Charter should not extend the competences of the Union, some would argue that some rights protected in the Charter could oblige the Union to take some positive measures to respect theses rights. Thus, the EU Charter will have an indirect effect on the policies of the Union that will undeniably come to compete with the Council of Europe attributions. In a broader perspective, it can be argued that the EU is in any case increasingly competing with the Council of Europe on fields that used to be the only competence of the Council of Europe. The EU develops the fundamental rights aspects of its relations with the external borders. The EU ‘new neighbourhood’ projects are similar to those supported by the Council of Europe. The extension of EU actions in this area will certainly compete with the traditional role of the Council of Europe in these countries. Some questions are thus raised as regards the utility for the EU to put up the money for the Council of Europe projects. Some voices in the EU are declaring that the EU could do itself this work very well. The persistence of a crucial role Nevertheless, it can also be argued that the EU Charter will not manage to compete with the ECHR enough to take away its role. This scenario is obviously widely defended in the official speeches of the Council of Europe but also in the EU. One can admit that it finds some practical basis. First of all, it must be recognised that the EU Charter has, currently, only a very limited scope whereas the ECHR is applicable to every person being under the jurisdiction of one of its High contracting parties. The fundamental necessity of an external control The EU Charter is not forecast to have an undermining impact on the ‘external control’ status of the Council of Europe. This crucial role of the Council of Europe is widely recognized and respected. The European Court of Justice (ECJ), applying the EU Charter, will never dare claim to possess this ability to produce an external control over the EU. Even if the ECJ is an 62
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe independent body of the Union, it exists within the structure of the European Union. This function of international supervisions of fundamental rights will probably be preserved from the competition of the Charter. The EU Member States seem quite aware of the importance to maintain a ‘European monitoring system, operating outside the national systems (…), [that] gives citizens a guarantee that their rights will be protected’.11 The ‘objective and faraway look’ of the judges of the European Court of Human Rights is crucial for the protection of Fundamental Rights in Europe and one must maintain this status of the ‘ultimate judge’.12 Thus, the European Court of Human Rights has a major advantage over the ECJ. Its reputation of external control and impartiality seems to protect it from a threatening competition coming from the EU. Besides, the Council of Europe will always have the crucial asset of having the unique Court possessing the monopoly of interpretation of the ECHR,13 instrument of external control unanimously recognised. The crucial role of ‘link’ Another role is probably going to remain for the Council of Europe: its character of ‘hyphen’ or link uniting the ‘wide Europe’. One important role of the Council of Europe will thus be to constitute this link between the EU and the other European countries that will never join the EU. As it is emphatically stated by the Parliamentary Assembly, ‘The Assembly notes that the Council of Europe is a highly effective and indeed irreplaceable forum for political contact between the European Union member countries and countries that will probably not join the European 11
J. Polakiewicz, ‘The European Union’s Charter of fundamental rights and the European Convention on Human Rights - Competition or coherence in Fundamental rights protection in Europe’, 14 European Review of Public Law 1, (spring 2002), pp. 853−878. 12 Idea developed by Aristotelis Gavriliadis during an interview on 18/06/2003. 13 The monopoly of interpretation of the ECHR belongs to the European Court of Human Rights: Article 32 (1) ECHR: ‘The jurisdiction of the Court shall extend to all maters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47, and Article 55 ECHR reads: ‘The High Contracting parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this convention to a means of settlement other than those provided for in this Convention’. 63
Claire Salignat Union. It is the only truly European and continent-wide organisation in which all European countries co-operate on an equal footing’.14 (2) A Stimulus to Redesign its Role and Rethink its Future A reorientation of its role In conclusion to its report on the Charter of Fundamental Rights of the European Union (§ 18, doc 8846, 28 September 2000), the Political Affairs Committee declared that ‘The Union will increasingly become a pole of attraction to non-member countries. The role and structure of the council of Europe must be redesigned’. This EU Charter intervening in the same field as the Council of Europe has the undeniable consequence of bringing the question of the future of the Council of Europe to the centre of the agenda. An important impact of the Charter is to force a ‘reorientation’ of this role. The Council of Europe has the alternative to choose to redirect its actions towards fields that are ignored by the EU. Indeed, the Council of Europe’s competences are not limited; it can act in all the areas, except the military field, provided that the High Contracting Parties agree. The future of the Council of Europe could thus be redirected to areas where the EU has no competence. Thus, the Council of Europe could try to concentrate on other Conventions, it has very good expertise on the conventional area and should profit from this advantage.15 However, one must underline that if the Council of Europe has to rethink its role and actions, the EU is also at the edge of major transformations. Johan Callewaert developed the idea that, consequently, both organisations have the responsibility to think how they will adapt to each other. Finally, the future role of the EU is not so clear and one could suggest that the future role and structure of the Council of Europe will also depend on this evolution.16 A future role dependent on the scope of application of the EU Charter As Clemens Ladenburger argued,17 the long term scope of the repercussions of the Charter on the Council of Europe’s role will closely depend on the 14 Recommendation 1578 (2002) § 6, Assembly debate on 24 September 2002 (27th Sitting). 15 Idea developed by Judge Marc Fischbach, interview conducted on 11 June 2003. 16 Interview with Johan Callewaert conducted on 11 June 2003. 17 Conducted 16 June 2003, Mr. Ladenburger advocates a rather cautious interpretation of Article 51 (1) on the scope of application of the Charter on Member
64
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe interpretation, by the ECJ, of the clause ‘Charter . . . addressed . . . to the Member States only when they are implementing Union law’ (Article 51 (1) EU Charter18). If the ECJ interprets this clause narrowly, the impact of the Charter over the Council of Europe will be slight; the Council of Europe will still have some work left as regards its High Contracting Parties. However, if the ECJ decides to adopt a wide understanding of the restriction ‘when implementing Union law’, one can suggest that it will lead to important issues for the work of the Council of Europe. If the EU Charter is applied widely in the sphere of activity of the Member States, this will directly compete with the main sphere of influence of the ECHR. This equation reveals how difficult it is to forecast the consequences of the effects of the EU Charter over the Council of Europe. Moreover, this complexity is increased by the difficulty to distinguish clearly when the Member States will act in their own name and when they will act in behalf of the EU. Following the same idea, the nature of the impact of the Charter on the Council of Europe will also depend on an unknown variable: the eventual spill-over involved by the Charter. It is possible to imagine that the Charter will have an indirect spill-over into the actions of the Member States. Even if some rights of the Charter do not concern the Member States at first glance,19 they could find ‘interesting’ rights enshrined in the Charter and decide to borrow them. This reaction is not predictable and it is difficult to assess to what extent it could affect the role of the Council of Europe. Thus, the impact on the role of the Council of Europe is relatively uncertain, the proclamation of the Charter is the start of a process and only its application will really demonstrate what practical impacts it can have.
States, see his article ‘L’application pratique de la Charte des droits fondamentaux par la Commission européenne’, ERPL/REDP volume 14, no. 1, spring 2002, pp. 817 et seq. (826–832). Going in the same direction, cf. the statement of Michel Petite, Director General of the Commission Legal Service, to Working Group II of the Convention, document WD 13 of 5 September 2002, see . 18 Article 51(1) EU Charter states: ’the provisions of this Charter area addressed to the institutions and bodies of the Union with due regard for the principles of subsidiarity and to the Member States only when implementing Union law’. 19 Freedom of religion (Article 10 Charter) is not a competence of the Union and thus cannot be applied by Member States ‘when implementing union law’ but could present an interesting protection to borrow for some Member States. 65
Claire Salignat 3.2. The Impact over the Evolution of the Jurisprudence One major impact of the EU moving toward a human rights role is the interactions it can imply between the jurisprudence of the ECJ and the jurisprudence of the European Court of Human Rights. (1) The ECHR as a Source of Inspiration for the EU It is important to remember the everlasting influencing role of the Convention on the EU, the EU has always found a source of inspiration for its own texts and principles in the work of the Council of Europe. The Convention drafting the Charter has frequently used the ECHR as a basis to write its principles and rights. In some Articles, the wording of the ECHR has obviously been borrowed and in some others, the rights are simply a copy of those enshrined in the ECHR. The EU argument is that it was helpful to use a text that has a Europewide recognition but only as a basis to draw modernised and ‘EU adapted’ rights. (2) The EU Charter as an Influence for the ECHR Jurisprudence A less obvious influence can also be observed from the other perspective. It is really important to be aware of the potentiality of the Charter influencing the ECHR. A crucial impact of the Charter could be embodied by the pressure it has on the jurisprudence of the ECHR. The Convention being considered as a ‘living instrument’, the European Court of Human Rights is always keen to look at other instruments and new developments. Even before the ECJ had dared use the Charter, the European Court of Human Rights simply borrowed an Article of the Charter to sustain its argument in a case pending before it. Indeed, in the case Goodwin v. the United Kingdom20 (this case involved a post-operative male to female transsexual claiming for rights including the right to marry her partner who is a man), the European Court of Human Rights considered that, as the Convention was 50 years old, it was useful to look at other instruments. It noted that the EU Charter of Fundamental Rights provides a more extensive right to marry. It underlined that Article 9 of the Charter of Fundamental Rights of the European Union provides ‘The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights’.21 The right is thus guaranteed without 20
Goodwin v. the United Kingdom, Application no. 28957/95, judgement of the 11 July 2002. 21 Ibid., para. 58.
66
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe any reference to the sex of the holders. The Court noted that it ‘departs, no doubt deliberately, from the wording of Article 1222 of the Convention in removing the reference to men and women’.23 One can therefore highlight a crucial impact of the Charter on the ECHR: the establishment of ‘healthy competition’ between the two Courts. As Marc Fischbach explained, the ECHR, finding its inspiration in the Charter, would be pushed to reinforce the level of protection of human rights.24 This interrelation is a very interesting outcome of the impact of the Charter over the ECHR. It could have a positive influence on the human rights protection under the ECHR. The evolution of the ‘conventional acquis’ could be a crucial impact of the Charter. The ECHR could find an inspiration for new rights, such as biomedicine, and thus find a way to modernize its own protection. Moreover, one can imagine that if the Luxembourg Court takes a more protective interpretation of rights of the Charter (that are mainly based on the ECHR), it will put pressure on the European Court of Human Rights to review its case law and also to extend its jurisprudence. (3) A Mutual ‘Influence Circle’ Finally, one can also suggest that this influence can ‘transfer back’ to the EU. Indeed, the use of the Charter as an inspirational source will, in turn, put pressure on the ECJ to finally use it. It could even force it to use the same interpretation of protection, so as not to be censured by a judgment of the European Court of Human Rights a posteriori. One can notice then, that even if there is no legal or institutional link between the two jurisprudences, an ‘influence circle’ or an ‘influencing spill-over’ could be implemented to ‘the benefits of all’.
22
Article 12 ECHR: ‘Men and women and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’. 23 Supra note 20, Goodwin, para. 100. 24 My translation, ‘la Cour Européenne des droits de l’homme en s’inspirant de la Charte sera incitée à renforcer le niveau de protection des droits de l’homme’, M. Fischbach ‘La Convention européenne des droits de l’homme et la Charte des droits fondamentaux de l’Union Européenne: concurrence ou complémentarité?’ at the Symposium des juges, Convention des Droits de l’Homme et Charte de l’Union Européenne des Droits Fondamentaux, Luxembourg, 16 septembre 2002. 67
Claire Salignat 3.3. The Impact on Legal Certainty (1) Problems Pre-existing to the EU Charter Before examining the possible effects of the Charter, one must be aware that flagrant conflicts in dealing with some case law already existed before its emergence. The most striking divergences are to be found as regards the interpretation of Article 6 and Article 8 ECHR. This was not problematic when the ECJ decided to adopt a more protective stance; the difficulties emerged when the ECJ gave a more restrictive protection than the one offered by the European Court of Human Rights. Indeed, some cases concerning the limited access of individuals to the Union’s judiciary or the particularity of the impossibility for parties to reply to the opinion of the Advocate General,25 are clear cases where the ECJ has consciously chosen to depart from the European Court of Human Rights jurisprudence. The two courts also differed on the scope of the protection of Article 8 of the ECHR: the divergence is on the extension (or not) of this protection to professional activities and business premises. Even without the intervention of the EU Charter, the Courts, despite their tradition of respect and their search for compatibility, already had to face evidence of the inconsistencies of their jurisprudence. (2) The Effects Caused by the EU Charter The intervention of this new instrument in the European legal order involves difficulties concerning the coherence of this protection. Despite the effort of the Council of Europe to present the Charter as anchored in this coherence, not all the issues are solved with the General Provisions of the Charter. Two courts and two instruments It is assumed that the EU Charter is likely to be interpreted through the economic prism and that this focus will inevitably lead to inconsistencies with the European Court of Human Rights jurisprudence. These conflicts were deemed to exist, as different standards are interpreted by two distinct ‘supreme’ Courts.
25 Emesa Sugar v. Aruba, Case No. C-17/98 (2000), ECR I-665, Order of the Court of 4 February 2000.
68
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe The difficulties linked to the interpretation The risk of divergence is illustrated by the example of a lacuna in the General Provisions of the EU Charter. If the consistency between the ECHR and the Charter is supposed to be assured by the rule of the respect of the minimum protection offered by the ECHR, a crucial issue remains unsolved. This will be when the ECJ will have to interpret rights (of the Charter) that have no equivalent in the ECHR or that have never been dealt with by the Strasbourg Court. As regards migration or asylum for example, the Strasbourg jurisprudence is from now on ‘under construction’26 and it could be quite difficult for the ECJ to distinguish the minimum standards required by the ECHR. Finally, because of their goals in clarity, the Convention drafting the Charter decided not to follow the ECHR model27 but instead to write a general restrictive clause, which is supposed to apply to all the other rights (Article 52 (1) of the Charter). The interpretation of the limitations of each right is thus not very clear and could be used as a tool to depart from the ECHR jurisprudence. Some people considered that this simplified Charter is consequently weaker. The difficulties linked to the balance between standards Article 53 of the Charter,28 leaving the priority to the most extensive rights (‘the most favourable law principle’), is partly effective. Jörg Polakiewicz raised the difficult problem of striking the balance between competing rights. The emergence of the Charter involves the need to choose between opposing fundamental rights. The ‘highest standard’ test can appear to be very difficult to seize. The protection of freedom of expression can be high in the Charter (and so be accepted as superior to the minimum standard of the ECHR) but can lead to the weakening of the protection of privacy or
26
Idea raised by Judge Marc Fischbach during an interview 11 June 2003. The inclusion of limitations within each Article. 28 Article 53 Charter: ‘Nothing in this charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union laws and international laws and by international agreements to which the Union, the Community or all the Member States are party, including the European Convention for the protection of Human Rights and fundamental freedoms and by the Member States’ constitutions.’ 27
69
Claire Salignat protection of honour (and consequently be seen as below the minimum requirement of the ECHR as regards protection of private life).29 Some possible and foreseeable impacts implied by the emergence of the EU Charter have been seen, one must nevertheless go further to fully understand the repercussions of this emergence. Indeed, these ‘direct’ effects lead to the appearance of indirect reactions from the Council of Europe. 4. The Council of Europe Reactions to these Inputs One should examine how, facing these impacts, the Council of Europe will organise itself to react to this risk of decline. It is interesting to assess how the Council of Europe decided to react in order to maintain the legal coherence and to preserve the credibility of its role. 4.1. The Favourite Reaction: Pressure for an EU Accession to the ECHR One major and clear reaction of the Council of Europe is the wide claim of the necessity for the EU to accede to the ECHR. The EU Charter is not solving many problems related to the Community law status under the ECHR. The EU Charter is only seen as an additional reason to push for accession. Therefore, the Council of Europe, almost unanimously, took the debate about the Charter as an opportunity of to re-launch the accession debate. It is striking to notice that in almost every speech on the EU Charter, the Council of Europe representatives include a call for EU accession to the ECHR. (1) The Council of Europe’s Lobby over EU Accession To understand the choice of the pressure for EU accession as a tool of ‘retaliation’ to the effects of the EU Charter, one must briefly examine the persuasion rhetoric of the Council of Europe. The EU accession is presented as the only solution to have clear and coherent relations between the EU and the Council of Europe. The argumentation of the Council of Europe is careful when presenting the advantageous situation for the EU: European Union Institutions will have the possibility to defend themselves when their responsibility is invoked. Besides, the Council of Europe made many speeches explaining that the 29
Idea developed by J. Polakiewicz with H.C. Krüger, ‘Proposals for a Coherent Human Rights Protection System in Europe. The European Convention on Human Rights and the EU Charter of Fundamental Rights’, 22 Human Rights Law Journal 1 (2001).
70
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe accession will not, in any case, infringe the principle of autonomy of Community law, given that the ‘margin of appreciation doctrine’ will be applied to the EU. (2) The Underlying Difficulties One must nevertheless bear in mind that the choice of this tactic of reaction involves some difficulties for the Council of Europe. Mainly, the new adhesion of a member like the EU will lead to a strong increase in the number of cases on Articles 6 and 13 ECHR. Then, one must question the extent to which the integration of an entity like the EU in the system of the ECHR risks (or not) destabilising the balance of power. The ‘history’ of the Council of Europe diplomacy does not demonstrate a strong solidarity among EU Member States at the Committee of Ministers. One should nevertheless wonder whether a EU accession risks reinforcing an EU block within the Council of Europe and even more so when 25 High Contracting Parties of the ECHR are also EU Member States. It could be a concern for the whole system of the ECHR if the feeling of ‘EU family’ came to destabilise the balance of this legal order. If alliances were to be tied between EU Member States, it would undermine the whole philosophy of collective guarantee the Council of Europe.30 One must be aware that this accession will not be easy; it will involve a great deal of preparation. It implies that the EU has a definite distinction between the competences belonging to the EU and those belonging to the Member States, this is crucial because it will determine for example which representative, at the Committee of Ministers, will be in charge of the application of the Court judgement. The peculiar situation of the EU will need some special adjustments. These requests risk undermining the whole system by providing special modifications only for the EU. The EU claims to obtain that ‘EU cases’ will be treated by a special chamber composed of EU judges or that the use of interstates applications (Article 33 ECHR) within the EU Member States will be prohibited. Questioning the equality of the Contracting Parties risks to damage fundamentally the ECHR system of protection. Finally, some commentators feared that the protocol of Accession would be taken as an excuse to review some parts of the Convention that do not please some EU Member States. They fear that EU Member States will take 30 Ideas developed with Aristotelis Gavriliadis during an interview on the 18 June 2003.
71
Claire Salignat advantage of the protocol to amend the Convention and to weaken it. One can also add that it will be a long and difficult exercise to have this protocol signed by the 45 current High Contracting Parties to the ECHR.31 One crucial remaining question is to see the extent to which these reforms will risk transforming the role of the Council of Europe. EU accession seems to position the Strasbourg Court as an ultimate Supreme Court in Europe. Nevertheless, the impacts of the difficulties the Council of Europe will have to overcome could also jeopardise the challenge of a coherent and European-wide protection of fundamental rights. 4.2. The Reaction through the Possibility of an Extension of Review over Community Law The extension of review over Community law will consist of the admissibility, by the European Court of Human Rights, of cases questioning some EU acts for breach of fundamental rights. This extension will allow the suppression of a ‘schizophrenic’ situation whereby the European Court of Human Rights is deemed to condemn the Member States for acts that no longer fall under there competence. In an attempt to increase its influence on the EU, the Council of Europe could extend its review of EU acts when they are suspected of infringing the ECHR. The review of EU law is strongly advocated when some acts infringe the ECHR and when there is no remedy available within the EU. The doctrine of equivalence should work reciprocally, if the EU is not protecting the fundamental rights enshrined in the ECHR in a satisfactory manner, the European Court of Human Rights should be authorised to take measures. The European Court of Human Rights should remain the last instance deciding the compatibility of the protection with the ECHR standards. Many have argued that this pressure will end on a ‘de facto’ EU accession to the ECHR: as a result EU acts will be reviewed as if the EU was a contracting party but the EU will not be allowed to defend itself!32
31
The Council of Europe will have to think how to combine this protocol with the protocol ‘reform of the reform’ if it does not want to have to drive 2 major protocols in a short time. (Idea developed by Jörg Polakiewicz during an interview conducted on the 10/06/2003). See now the interim activity report of the Steering Committee for Human Rights, ‘Guaranteeing the long-term effectiveness of the European Court of Human Rights – Implementation of the Declaration adopted by the Committee of Ministers at its 112th Session (14−15 May 2003)’, CDDH(2003)026.
72
The Impact of the Emergence of the European Union as a Human Rights Actor on the Council of Europe The very fundamental question for the future evolution of the relationship between the European Court of Human Rights and the ECJ is: ‘Will the Court go further extending its conventionality control also to cases where the Luxembourg Court has an ‘inadequate’ interpretation of the rights protected under the ECHR?’ It is very difficult to foresee the reaction the Council of Europe will adopt but it can be argued that if the Court wants to be consistent with the ‘equivalence doctrine’, it must also consider itself competent to control the compatibility of EC acts with the ECHR when the standards are no longer maintained. It can be assumed that the Court, willing to protect the credibility of its own system, will no longer allow its Contracting Parties to avoid its conventionality control by transferring power to institutions outside its jurisdiction. If the ECHR wants to be coherent in the preservation of its system, the Strasbourg Court should dare to go further in its review of EU acts that infringe fundamental rights. Obviously, this method of reaction would be the most radical and the most effective. Another idea could be the establishment of for a system that authorises the ECJ to request a preliminary ruling or an advisory opinion to the European Court of Human Rights as far as the interpretation of the ECHR is concerned. 5. Conclusion The coexistence of these two organisations is not a simple ‘zero-sum game’: what is won by one side is not obviously lost by the other. The impacts have been assessed through three different focuses. The effects on the Council of Europe’s role are ambivalent and will push the Council of Europe to question its organisation and its main targets in the future. The effect of the EU Charter on the jurisprudence could be very constructive as it could get under way a positive ‘mutual influence circle’ between the two systems. However, these interesting repercussions could be challenged by the negative impacts the Charter could have on legal certainty. To counter these negative impacts, the Council of Europe could react by pushing for acceptation by the EU of accession to the ECHR. This pressure is also in the interest of the Council of Europe as it will place this Institution at the centre of the protection of fundamental rights in Europe. It has however been seen 32 And we can also wonder if this reaction is not a ‘twisted’ way to push again for an official accession.
73
Claire Salignat that this choice of reaction is linked with some difficulties and the Council of Europe could also choose to react through an extension of its review on Community law. Therefore, if the future of the Council of Europe does not seem to be eradicated, it is certain that it will be forced to redesign its role to face these strong pressures by the EU. In a broader perspective, the emergence of a new actor in the field of Fundamental Rights protection re-opens the debate on the effectiveness of protection in Europe. It is sure that if this model of an EU Charter next to the ECHR was to evolve towards competition between the EU and the Council of Europe, the situation of human rights protection will be seriously damaged. With the appearance of an EU system of protection of fundamental rights, some people feared the implementation of a two-speed Europe in Fundamental Rights, creating new dividing lines. Fundamental Rights would be different according to the possession of the citizenship of the Union or not.
74
The Evolution of the Right to Life by the European Court of Human Rights Stuart E. Hendin Q.C.*
Contents 1. Background and Introduction 2. The Early Cases 3. The Cases Involving Turkey and Article 2 4. Conclusion 1. Background and Introduction The European Court of Human Rights is the one court in Europe with the purpose and mandate of protecting of human rights through the interpretation of the European Convention for the Protection of Human Rights.1 The Convention and any judgments rendered by the European Court of Human Rights are binding on the members of the Council of Europe that have ratified the Convention. This essay focuses on the right to life pursuant to Article 2.2 It is noteworthy that the first reported reference to applications being made, (mostly) claiming in part a breach of Article 2, date back to 1964.3 Of the first 50 cases brought all but two were found to be either inadmissible or, the alternative, struck off of the list.4 Cases that particularly deal with breaches of Article 2 of the Convention are of much more recent vintage, the first case *
The author would like to thank Professor William Schabas for giving him the opportunity to expand his horizons to be able to make this small contribution. The author would like to dedicate this to his two sons Ross Hendin, Bryan Hendin, and to the memories of Eva Hendin, Nathan Hendin and Violet Amsterdam. The author regrets that this may not be the type of academic exercise anticipated, but the readers are reminded that the author has limited exposure to circles of academia having spent twenty-five years as a trial attorney arguing briefs before courts and tribunals. 1 European Convention for the Protection of Human Rights and Freedoms, 4 November 1950, 213 U.N.T.S. 221 (hereinafter European Convention on Human Rights). 2 See European Convention, supra note 1. 3 The first reported/recorded case that makes any reference to Article 2 is X v. Federal Republic of Germany, 2300/64. 4 See . 75
Stuart E. Hendin Q.C. being reported in 1995. As will be seen when the cases are reviewed in a chronological fashion, the majority of the same deal with allegations against Turkey. Further as will be seen, the principles developed by the Court5 have not confined themselves to incidents involving the taking of life by the State, but have encompassed situations where the obligation of the State to protect life has assumed a role of substantial importance. 2. The Early Cases The first of the reported cases dealing directly with Article 2 was reported in late April of 1995, and was not terribly helpful in giving any indication as to how the Court would deal with allegations of violations of the Right to Life as guaranteed by the Convention.6 In Diaz Ruano7 the applicant’s son had been arrested and interrogated by the police. During the course of the interrogation he was shot by one of the investigators and killed. The police officer that had fired the fatal shot was initially convicted of murder, but an appellate court overturned this conviction. The father of the deceased applied to the Commission alleging, inter alia, that the boy had been the subject of torture and inhuman and degrading treatment (contrary to Article 3 of the European Convention) while he was in custody. The Commission held the application to be admissible for raising issues under Article 2 of the European Convention. However, the Court did not determine the case because a settlement was reached by the parties before the actual hearing date, and as a result the case was struck off the court list. The next case to be brought before the Court dealing with Article 2 was McCann.8 The importance of this case, as this paper develops, cannot be underestimated. McCann, involved British SAS troops sent to Gibraltar to assist in the apprehension of IRA terrorists. It was believed that the three terrorists were going to Gibraltar to detonate a bomb of some sort. As part of the preparations by the authorities, rules of engagement were established. In the course of the operation all three of the suspected terrorists were shot and killed.
5
European Court of Human Rights (hereinafter referred to as either ‘the Court’ or ‘the Strasbourg Court’). 6 Ibid. 7 Diaz Ruano (1995) 19 EHRR 542. 8 McCann and others v. the United Kingdom, (1996) 21 EHRR 97.
76
The Evolution of the Right to Life by the European Court of Human Rights Subsequently a coroner’s inquest was held on Gibraltar. Later the civil actions commenced in the United Kingdom subsequent to the deaths were struck out. An application was made to the Commission in August of 1991, and in March of 1994, the Commission took the position, by a split vote, that there had been no violation of Article 2 of the Convention.9 Article 2 of the Convention reads: ‘1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of the sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force, which is no more than absolutely necessary; (a) in defense of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.’
As will be seen in virtually every case to be examined, the Court commenced consideration of the applicability of the law by expressing the fundamental importance of this Article. It is further to be seen in the following cases, that the Court treats the obiter in this case as part of the basic discussions that will follow. The Court expressed the contextual importance of Article 2 as follows: ‘It must be born in mind that, as a provision which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions of the convention – indeed one which in peacetime, admits no derogation under Article 15. Together with Article 3 of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe…As such, its provisions must be strictly construed’.10
The Court held that the purpose of the Article is to assist in the determination of situations where the use of force, which may result in death 9
Ibid., para. 142. Ibid., para. 147.
10
77
Stuart E. Hendin Q.C. of an individual, is permitted. But the Court was very clear, as will be seen in its later rulings, that force must only be used where it is ‘absolutely necessary’ in achieving one of the areas enumerated in the Article.11 Further, the Court remarked that the term ‘absolutely necessary’ implies a high standard that must be met, implying that a very real test will be cast back to the State in question.12 The Court then commented that, not only will the actions of the individuals involved (particularly the agents of the State in question) be subject to scrutiny, but as well the planning and control of the operation in its entirety will be subject to judicial scrutiny.13[ The Court then made clear that the general prohibition of the taking of life by the State would be without effect if there were no avenue to review the actions of the authorities in question. Avoiding the issue as to whether or not Article 2 (1) inferred a right of access to a court in order to commence civil suit by suggesting instead that Article 6 is the appropriate avenue for the same.14 However of far greater significance is the comment by the Court that the prohibitions contained in Article 2 would be ineffective if there was no mechanism or procedure in place to review the lawfulness of the (entire) conduct of the authorities. The Court held that the general provisions of Article 2 must be read in conjunction with the general duty of the State pursuant to Article 1 of the European Convention. Reading together the two Articles the Court found that, by implication, there is a duty upon the State to conduct effective official investigations when individuals have been killed with the use of force involving, either directly or indirectly, agents of the State.15 As will be seen in a number of the cases that follow, while the Court has not been able to fix responsibility for either an actual or deemed death by agents of the State that constituted a violation of Article 2 of the Convention, nevertheless breaches of the same were found on the basis that no effective investigation was conducted. The expansion of this concept by the Court will be examined. The McCann Court, at the end of the day, accepted that the soldiers involved in the incident had an honest belief that they were acting in a manner to prevent loss of life,16 and further that there may be cases where actions may be taken out of mistaken but honestly held beliefs, which would be acceptable. The Court found that to hold otherwise would be to place an 11
Ibid., para. 148. Ibid., para. 149. 13 Ibid., para. 150. 14 Ibid., para. 160. 15 Ibid., para. 161. 16 Ibid., para. 200. 12
78
The Evolution of the Right to Life by the European Court of Human Rights ‘unrealistic burden’ on the legitimate duty of those charged with the responsibility of protection of life within the State.17 The Court, in absolving the actions of the individual members of the operations team involved in the shooting, was not so generous to those involved in the planning of the operation. In finding a breach of Article 2 the Court identified a number of serious errors that taken together were sufficient to constitute a breach of rights of the deceased in this case. The Court was critical of the planning of the operation, from the first decision to allow the suspects into Gibraltar, through the failure to build in any margin for error in intelligence assessments, and finally to the reflex action of the soldiers in question to use lethal force by opening fire. This (failure of the authorities in the planning) in particular was held to constitute a breach of Article 2 (2) (a) of the Convention,18 suggesting that the State had not satisfied the Court that the amount of force used was no more than was ‘absolutely necessary’ in the circumstances. As an interesting footnote to this case, it should be noted that the applicants received no non-pecuniary (general) damages in the judgment. It is to be recalled that the Court considers itself to be a court of equity, and it is an often-recited maxim that anyone who comes to such a court seeking equity must do so with ‘clean hands’. It is appropriate to consider the nature of the positive duty that the Court is prepared to impose upon the State in the application of Article 2 of the Convention. This is discussed in general in Osman,19 which was decided in October 1998. The facts in Osman involve the story of a teacher infatuated with one his young students. The actions of this individual resulted in death and injury. The case revolves around what information the authorities either knew, or ought to have known, and what actions they could or should have taken to prevent the harms suffered. It is not intended to deal with the particular facts of this case, but rather to focus on the principles enunciated by the Court. The Court was asked to consider whether or not the police and other authorities had failed in their obligation to protect Osman from what was claimed to be the danger that the teacher posed. There was as well a claim that the domestic court decision to dismiss an action commenced against the
17
Ibid. Ibid., para. 213. 19 Osman v. the United Kingdom, (1998) 5 EHRC 293. 18
79
Stuart E. Hendin Q.C. authorities amounted to a breach of the right of access to a court pursuant to Article 13 of the Convention. The Court, in its discussion of Article 2, reviewed briefly its earlier decision in the case of L.C.B. v. United Kingdom20 and reminded that the State has a positive duty to take steps to protect the lives of persons within the jurisdiction of the State. This obligation compels the State to put in place criminal law provisions to deter the commission of (criminal) offences, and as well to establish the appropriate State machinery in support of the same.21 While the parties arguing this particular case differed on the degree of the State obligation, the decision suggests that no issue was taken with the direction of the Court that in certain circumstances there is a positive obligation on the State authorities to take positive measures to protect the lives of individuals who may be at risk from the criminal acts of others.22 However, the Court did give consideration and credence to the realities of modern society by holding that the authorities cannot ‘undertake the impossible’, but rather are obliged to undertake their obligations bearing in mind such factors as priorities and available resources.23 The Court then addressed the issue of onus of proof that would be required in cases brought under this principle. The Court, as will be seen in other cases, does not cast upon the State a reverse onus (of proof) nor does it address the issue of level of proof required. Rather, it held that once the allegation or (legal) claim is made it is ‘sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge’.24 Relying on the principle that each case ought to be determined on its own merits the Court found (as a matter of fact) that the applicants had not directed the Court to any ‘decisive’ point on the unfortunate sequence of events where the Court could find that the authorities (police) either knew or ought to have known that lives were in both ‘real and immediate risk’ from the perpetrator. The Court could not find any single event in the sequence of events that was sufficient to trigger either actual or implied knowledge on the part of the police to trigger an obligation. Further, and of significance, is the comment in the judgment that the perpetrator was also deemed to have 20
L.C.B. v. the United Kingdom, Application No., 23413/94. Note that in this judgment the Court does not deal with the issue of what would constitute a criminal offence. 22 Osman, supra para. 115. 23 Ibid., para. 116. 24 Ibid. 21
80
The Evolution of the Right to Life by the European Court of Human Rights rights that were to be respected by the authorities in the discharge of their duties.25[ Notwithstanding the fact that the application failed to find a breach of Article 2 of the Convention, nevertheless this case is not to be underestimated in its importance in identifying and qualifying the positive obligation of the State to protect individuals within the jurisdiction. The Andronicou and Constantinou v. Cyprus26 case presented the Court with another opportunity to examine the use of lethal force by police in the context of allegations of breaches of Article 2. This case adds further parameters to the applicability of the Article. The facts in Andronicou involve an incident that developed over the course of the day of 24 December 1993. The male and female deceased were to have been married. For reasons unknown, the male barricaded himself and his fiancée in their apartment and during the day said that he was armed and was going to kill her. Negotiations to effect a peaceful resolution of the matter failed, and the police became involved. As the situation deteriorated, and fearing that the male would kill the female, the police stormed the apartment. Unfortunately during the police operation the male was killed, and the female was critically wounded and later died. Subsequently a full inquiry was held into the incident. For purposes of this discussion the Court considered whether the (lethal) force used was ‘strictly proportional’ bearing in mind the circumstances of the moment, and the principles enunciated in Article 2. Considering its earlier decision in McCann, the Court also indicated that it would not only deal with the actual shooting, but would also examine all of the circumstances attendant to the police storming of the premises, including (but not limited to) matters such as planning and control. The thrust of the complaint was to the effect that the killing of the male, and the wounding (which resulted in the death of the female) constituted a breach of Article 2.27 In its discussion of the issue, the Court, after recalling the importance of Article 2, undertook a consideration of the words ‘absolutely necessary’ as found in the Article. The Court expressed: ‘In this respect the use of the term ‘absolutely necessary’ in Article 2(2) indicates a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is ‘necessary in a democratic 25
Ibid., para. 121. Andronicou and Constantinou v. Cyprus (1998) 25 EHHR 491. 27 Ibid., para. 153. 26
81
Stuart E. Hendin Q.C. society’ under paragraph 2 of Articles 8 to 11 of the Convention’ In particular, the force must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2(a), (b) and (c) of Article 2.’
Furthermore, in keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the state who actually administered the force but also all the surrounding circumstances, including such matters as planning and control of the actions under examination.28 The Court reviewed the arguments of both the applicant and the respondent, and as well heard the position of the Commission (that was critical of the planning and control) dealing with the planning and control phases of the police operation. The Court did its own assessment of the facts before arriving at the conclusion that it had not been demonstrated, presumably by the applicants, that the police operation was ill planned and ill organized.29 However this portion of the judgment is silent as to, firstly, which party bore the burden of proof, and secondly the level of proof required. In the absence of judicial comment it is suggested that the burden of proof rested with the applicant, but the decision is silent as to the standard of proof to be met. The Court then examined the actions of the police members involved in the shooting, and in that regard the Court held that although the taking of life was regrettable, nevertheless the police in question acted in the honest belief that their actions were done with the intent to save the life of the female hostage, and secondly, that the actions were done in a sort of reflex action. It is of note that in exonerating the police involved in the actual shooting the Court stated: ‘It notes in this respect that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reason, to be valid at the time, but subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their
28 29
Ibid., para. 171. Ibid., para. 186.
82
The Evolution of the Right to Life by the European Court of Human Rights duty, perhaps to the detriment of their lives and the lives of others.’30
To demonstrate the evolutionary nature of the Convention, as interpreted by the Court, it is useful to reflect on the dissenting opinion of Judge Pikis. This opinion suggests that the duty to protect life had increased since the McCann decision when the Judge opined: ‘The recent decision of the Court on the case of McCann and Others v the United Kingdom (judgment of 27 September 1995, Series A no., 324) puts, to my understanding, the duty of the State to protect the life of the individual on a higher pedestal than hitherto.’31
3. The Cases Involving Turkey and Article 2 As was suggested earlier, the majority of cases involving alleged breaches of the ‘Right to Life’ as guaranteed under Article 2 involve claims made against Turkey, and it is interesting to follow the development of the law in this regard. The first of these cases, Kayak,32 dated back to an incident that took place on 25 March 1993. The applicant alleged that the deceased, Abdulmenaf Kaya, was killed while unarmed, by members of the Turkish military, and subsequently a weapon was placed on his body. The respondent alleged that the deceased was found with the weapon after an exchange between members of the military and terrorists. Of note, (not only to this case, but as well to a number of those following) is the fact that, subsequent to the shooting a government physician examined the body and concluded that the cause of death was cardiac insufficiency caused by bullet wounds. No full autopsy was carried out. It further appeared as though no full independent inquiry of the incident was carried out. It is also to be noted that in this case, as well as most of the other cases involving claimed breaches of Article 2 by Turkey, the Commission conducted its own inquiry in Turkey in an attempt to ascertain the facts of the matter. The comments regarding cooperation, or the lack thereof, will be relevant as well. 30
Ibid., para. 192. Ibid., dissenting judgment of Judge Pikis, para. (c). 32 Kaya v. Turkey, Application No., 22729/93; see also, Velikova v. Bulgaria, p. 24; Jordan et al v. the United Kingdom, p. 35. 31
83
Stuart E. Hendin Q.C. In Kayak, the Commission found that there had been a violation of Article 2, not based on the circumstances of the killing, but rather on the inadequacy of the inquiry conducted after the fact,33 and further, notwithstanding that neither the applicants nor the Commission delegate pursued the same before the Court, the Commission asked for a ruling on whether or not there had been a breach of rights afforded under Article 3 of the Convention. The focus of this case is the attention that the Court gives to the investigation that took place after the fact. The Court focused on the comments of the Commission that because the facts of the killing were unclear, that there was a requirement on the part of the (State) authorities to carry out a thorough investigation,34 and in this case the commission held that the investigation conducted was so inadequate that it amounted to a failure to protect life contrary to Article 2.35 The Court accepted the observations in this regard, and went further in saying: ‘The Court recalls at the outset that the general prohibition on arbitrary killing by agents of the State contained in Article 2 of the Convention would be ineffective, in practice, if no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under Article 2, read in conjunction with Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms in [the] Convention’ requires by implication that there be some form effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State. The Court observes that the procedural of the right to life inherent in Article 2 of the Convention secures the accountability of agents of the State for their use of lethal force by subjecting their actions to some form of independent and public scrutiny capable of leading to a determination of whether the force used was or was not justified in a particular set of circumstances.’36
The judgment reflects a real sense of dismay at what was done, or perhaps better put, not done by the (domestic) public prosecutor in the conduct of his
33
Ibid., para. 52. Ibid., para. 84. 35 Ibid., para. 85. 36 Ibid., paras. 86, 87. 34
84
The Evolution of the Right to Life by the European Court of Human Rights inquiry.37 The court gave note to the fact that incidents involving loss of life were commonplace in south-east Turkey,38 but the Court was very clear in holding that there can be no displacement of the obligation of the State, under Article 2, to conduct an independent and effective investigation into the circumstances of the death.39 Relying on the failure to have such an inquiry done, the Court found a breach of Article 2, and awarded damages accordingly. In Kurt40 the facts dated back to events that took place in November of 1993. There had been a clash between members of the Kurdish Workers’ Party and members of the security forces in or near the village where the applicant lived. During, or immediately after the clash, the applicant’s son had been seen with members of the military, and was not seen thereafter. The applicant made a number of inquiries of officials concerning her son’s whereabouts and was told firstly that he had probably been taken by the members of the Workers’ Party, and then was subsequently told that the authorities had no record of his being taken into detention or custody. This case is significant because the Court seems to avoid a course of analysis that seems to develop in cases to be considered later. Of importance in Kurt is the fact that the Commission had accepted the evidence as offered by the applicant as credible, and accepted her belief that the last time she saw her son he was ‘surrounded’ be members of the security forces.41 However, what is difficult to reconcile is the fact that the Commission chose not to address the case as a violation of Article 2, but rather that, as far as the son was concerned, there had been a breach of rights afforded under Article 5, and a breach of Article 3 as it pertained to the applicant who was the mother of the ‘disappeared’.42 At the Court the applicant continued to press for a finding of a breach or Article 2, as far as the son was concerned, while she sought relief for herself claiming a breach of Article 3. Of significance is the fact that the Court accepted, and held as a matter of fact, that the last time that the applicant had seen her son he was surrounded by members of the military, and that he (the son) had not been seen since.
37
Ibid., para. 90. Ibid., para. 91. 39 Ibid. 40 Kurt v. Turkey, (1998) 5 BHRC 1, Application No., 24276/94. 41 Ibid., para. 53. 42 Ibid., para. 73. 38
85
Stuart E. Hendin Q.C. The applicant urged the Court to follow the rationale used by the InterAmerican Court of Human Rights in Velasquez Rodriguez43 and to hold that the State owed her son an obligation (which she claimed had been breached) under Article 2, and that such a finding could be made even though there was no specific evidence that the boy had been killed by agents or authorities of the State.44 The Court, it is suggested with respect, sidestepped the matter before it as it pertained to Article 2 of the Convention. In finding that there had been no concrete evidence of a shooting, the Court ruled that it was not obliged to find a positive obligation on the part of the State to demonstrate a failure to protect life pursuant to Article 2.45 It also must be remembered that the Court did accept the fact that the last time the deceased was seen he was surrounded by members of the military, and had not been seen since. The Court dismissed the claim as it related to a breach or Article 2. However, in what appears to be a turnaround of sorts the Court held that: ‘the unacknowledged detention of an individual was a complete negation of the guarantees and a most grave violation of Article 5. Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt investigation into an arguable claim that a person has been taken into custody and has not been seen since.’
The avoidance of a finding of a breach of a positive obligation on the part of the State in Kurt is all the more unreasonable when one considers the finding: ‘Having regard to these considerations, the Court concludes that the authorities have failed to offer any credible and substantiated explanation for the hereabouts and fate of the applicant’s son after he was detained in the village and that no meaningful investigation was conducted into the applicant’s insistence that he was in detention and that she was concerned for his life. They have failed to discharge their responsibility to account for him and it must be accepted that he has been held in unacknowledged detention in the complete absence of the safeguards contained in Article 5.’46 43
Velasquez Rodriguez v. Honduras, (1998) 4 Inter-Am. Ct.H.R. (ser. C). Kurt, supra, para. 101. 45 Ibid., para. 107. 46 Ibid., para. 128. 44
86
The Evolution of the Right to Life by the European Court of Human Rights It is submitted that this wording is very similar to that used by the Court in finding breaches of Article 2 when read in conjunction with Article 1 in later cases to be considered. The Gulec47 case involves events that took place in early March of 1991. During a series of demonstrations the applicant’s son, a high school student, was killed. It was the position of the government that a shot from one of the armed demonstrators killed the boy, while the applicant argued that the security forces had killed his son. Within six weeks of the incident, the applicant filed a criminal complaint against, inter alia, the officer commanding the security personnel involved, but the criminal proceedings effectively went nowhere. The matter was lodged with the Commission in mid-March of 1993. The Commission undertook its own inquiry in Turkey, and in mid-April of 1997 issued a report finding (by an almost unanimous vote) a breach of rights afforded under Article 2. At the Court, the applicant alleged that the boy had been killed by members of the security service, and further that after the shooting there had been no meaningful investigation into the incident. The government took the position that the boy had been killed by a shot fired by one of the demonstrators, and further that the investigation had been a proper one. It is of note that the Commission it its submission posed that there had been, firstly an excessive use of force by the authorities, and secondly that there had been no ‘real’ investigation into the incident.48 The Court, in its reasoning accepted the finding of fact of the Commission that there had been, at the relevant time, a riot going on, however the Commission took serious issue with the use of an armored vehicle equipped with automatic weaponry to deal with the situation. The Court further noted that while the use of force is permitted under Article 2 (2) (c) to deal with riots, that nevertheless there ‘must be a balance struck between the aim pursued, and the means employed to achieve it’.49 The Court was further critical of the lack of (riot control) equipment that the security personnel had at hand, notwithstanding the admission that the government regarded this area to be unstable. If this line of thought is carried to a logical conclusion, one is left with what developed in McCann50 being used. 47
Gulec v. Turkey, (1998) Application No., 21593/93. Ibid., paras. 63, 64, and 65. 49 Ibid., para. 71. 50 See supra, McCann v. the United Kingdom. 48
87
Stuart E. Hendin Q.C. Further, in a judicial attempt to cast doubt on the credibility of the government’s position, the Court noted that from the evidence available, there was nothing available by way of tangible material (spent cartridges) to support the position that the fatal shot had been fired by a rioter.51 The Court was precise in the choice of its wording when it termed the actions of the authorities and more particularly the force used, as not being ‘absolutely necessary’ as enunciated in Article 2.52 However, the Court reserved its harshest criticism in this matter for the manner in which the post incident investigation was conducted. The Court reviewed both McCann and Kaya, and was very clear in reminding: ‘The general legal prohibition of arbitrary killing by agents of the State laid down in Article 2 would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State Authorities. The obligation to protect the right to life under this provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘to secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia, agents of the State.’53 ‘The procedural protection for the right to life inherent in Article 2 of the Convention means that agents of the State must be accountable for their use of lethal force, their actions must be subjected to some form of independent and public scrutiny capable of determining whether the force used was or was not justified in the circumstanced.’54
In holding the that the entire ‘investigation, was so flawed so as to amount to a breach of Article 2’, the Court added a new factor, namely that where a complaint has been made (presumably by a relative of the deceased) that the author of the complaint is to have notice of any investigation, and be able to participate in the same. The choice of words by the Court is not to be overlooked. It is clear that the when there is a taking of life by an authority or agent of the State there is no option as to whether an inquiry will be held, but rather it is mandatory. 51
Gulec, supra para. 72. Ibid., para. 73. 53 Ibid., para. 77. 54 Ibid., para. 78. 52
88
The Evolution of the Right to Life by the European Court of Human Rights Further, in the cases that deal with the positive obligation to hold an inquiry, the Court has set standards as to what is meant by terms such as ‘effective, independent or public’. The Ergi55 case provides an example of the Court’s reasoning in applying some of the principles developed from both McCann and Kaya. The facts to this case find their basis in an incident that took place in late September of 1993, when the deceased who was innocent of any wrongdoing whatsoever, and who unfortunately happened to be in the wrong place at the wrong time, was hit by a 7.62 milli-metre rifle round and died from his wounds. The fatal round was a standard NATO forces issue round. The parties could not agree upon the incident, or on the circumstances surrounding the same. The applicants took the position that the security forces had engaged in an ill planned and indiscriminate attack in retaliation for the death of a government collaborator. The government responded with the argument that their security forces had been attacked by terrorists and that the deceased was hit by a stray round in crossfire, or that she had been hit by a bullet fired by the terrorists. The investigation did not develop with any dispatch, and when the case was brought to the Commission the matter was still pending in the domestic system. A further complicating and significant factor for the case was that while the matter was pending before the Commission, the applicant was ‘questioned’ by members of an anti-terrorist authority as well as a public prosecutor regarding the need for financial assistance to bring this case to the Court. It is of note that the Commission had undertaken its own inquiry into the matter in Turkey and the innuendo in the Commission report to the effect that the government had not been helpful in providing necessary witnesses did not assist the respondent.56 However, the Commission by inference found that the security forces had commenced the use of firearms in the area where the fatal shot had come from. Further, the Commission held that while it could not find, as a matter of fact, that members of the security forces had fired the fatal shot, nevertheless there was ‘significant evidence’ indicating that security forces had fired the fatal shot.57 The Commission held that Article 2 had been breached in that firstly there was a failure in both the planning as well as the conduct of the operation in question, and secondly that there had been a failure to conduct an effective examination into the 55
Ergi v. Turkey, (1998) Application No. 23818/94. Ibid., paras. 29 and 41. 57 Ibid., para. 41. 56
89
Stuart E. Hendin Q.C. death of the girl.58 Of interest as well, although not germane to the findings of the breach of Article 2, was the finding of a breach of the right of access to the Court pursuant to Article 25. At the Court itself, the applicant invited the Court to impose a reverse onus upon the respondent to comply with a standard (of proof) of beyond a reasonable doubt that there had been terrorists involved in this incident59 The Court did not dismiss this line of argument, but rather avoided dealing with it, by agreeing with the Commission that there were some doubts as to the origin of the bullet, and therefore it could not hold beyond a reasonable doubt that the girl was intentionally killed. The judgment is apparently silent as to whether or not a reverse onus, as against the Government, would have been applied if the Court were satisfied as to the origin of the fatal shot. McCann60 dealt with failures in operational planning, and Ergi follows that line of reasoning as well. However, as will be seen in other cases, the Court was now expanding its reasoning to include Article 1 as well. The Court judgment notes: ‘In this regard, it is to be recalled that the text of the provision…read as a whole, demonstrates that paragraph 2 does not primarily define instances when it permitted to intentionally kill an individual, but describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life. The use of the term ‘absolutely necessary’ suggests that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is ‘necessary in a democratic society’ under paragraph 2 of Article 2 to 11 of the Convention. In particular the force used must be strictly proportionate to the aims set out in subparagraphs 2 (a), (b) and (c) of Article 2. In keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject the deprivations of life to the most careful scrutiny, particularly where deliberate force is used, taking into consideration not only the actions of the agents of the State who actually administer the force, but also all of the surrounding circumstances, including such matters as the planning and control of the actions under examination… Furthermore, under Article 2 of the Convention, read in conjunction with Article 1, the State may be required to take 58
Ibid., para. 55. Ibid., para. 71. 60 McCann, supra. 59
90
The Evolution of the Right to Life by the European Court of Human Rights certain measures in order to ‘secure’ an effective enjoyment of the right to life.’61
In Ergi, the Court was satisfied, after accepting certain inferences that the fatal shot had come from an area where the security forces had been and further ‘…that there had been a real risk to the lives of the civilian population through being exposed to cross-fire between the security forces and the PPK. In light of the failure of the authorities of the respondent State to adduce direct evidence on the planning and conduct of the ambush operation, the Court, in agreement with the Commission, finds it can reasonably be inferred that insufficient precautions had been taken to protect the lives of the civilian population’.62
However, the Court was particularly critical of the post-incident conduct of the respondent in this case. The Court took Article 2 further by holding: ‘In the case under consideration, the mere knowledge of the killing on the part of the authorities gave rise ipso facto to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the death.’63
As a footnote to the case there was also a finding of a breach of rights afforded under Article 25. The Court noted that it is fundamental to the operation of the system (of the Convention) that individuals must have access to the Commission without any form of pressure from the authorities, to modify or withdraw complaints as against these authorities.64 The judgment makes no mention of damages awarded under this heading, but in light of the fact that the applicant was denied aggravated damages, it is submitted that the finding of the breach of this article was ‘justification’ in and of itself. It is suggested that the Strasbourg Court continued to expand the applicability of Article 2 to include situations where there was evidence of the presence of State authorities or agents at the time that the incident took place. The Yasa65 case is reflective of such a judicial expansion. The facts in the first of the two incidents that make up this matter date back to mid61
Ibid., para. 79. Ibid., para. 81. 63 Ibid., para. 82. 64 Ibid., para. 105. 65 Yasa v. Turkey, (1998) ECHR 22495/93. 62
91
Stuart E. Hendin Q.C. January of 1993. The first of the applicants was going to his place of work at a newspaper stand when he was shot by a person, or persons unknown. He received a number of gunshot wounds and spent some days in hospital, and while he was in hospital he made a complaint to the appropriate police authorities. The second incident that is part of this matter involves the first applicant’s uncle. This individual was shot and killed while looking after the first applicant’s newsstand. The police were notified and purported to have conducted an investigation. As will also be seen, more than five years had transpired between the time the first complaint had been made to the police and the time the case came before the Strasbourg Court. No suspects had been identified and all that could be said by the authorities was that the dossier was still open and the investigation was ongoing. The matter was brought to the Court based on the allegation that the shootings took place because the news stand in question (operated by the first applicant) sold a newspaper of some sort that was supportive of certain Kurdish movements within Turkey. The allegation, for purposes of this discussion focused on a breach of rights protected by Article 2, although there were allegations of breaches of other Articles including, but not limited to, Article 3. The Commission found, as a matter of fact, that it could not be demonstrated, beyond a reasonable doubt, that either police or others on authority were involved in either shootings,66 however, and at the same time the Commission held that: ‘…the Government had or ought to have been aware that those involved on its publication and distribution feared that they were falling victim to a concerted campaign tolerated, if not approved by State agents’.67
It is to be noted as well that at the Court hearing the Commission took the position that the respondent had been unhelpful in assisting the Commission, and for that reason it found that the deficiencies in the government’s investigation were significant enough to amount to a breach of the obligations under Article 2.68 It is of note that at the actual Court hearing the applicant filed as new evidence a government report that referred to certain events that had taken 66
Ibid., para. 34. Ibid. 68 Ibid., para. 90. 67
92
The Evolution of the Right to Life by the European Court of Human Rights place in Turkey,69 and while this could be received in evidence, nevertheless the same was of no probative value in assisting the applicant’s claim of government involvement in the actual shootings. The Court held that as far as the actual shootings were concerned, no violation of the obligations under Article 2 could be found.70 However the same did not hold for the second thrust of the applicant’s argument dealing with the post-incident investigation. The Court commenced this area of discussion by immediately reminding of both McCann as well as Kaya, and the Court held that the obligation of the government was to commence an investigation immediately upon learning of the killing of the uncle. Further, and to reflect the ongoing development of the law in this area, the Court held that the wounded applicant also could rely on an allegation triggering Article 2, because of the fact that the firing of eight rounds at the applicant and his wounding amounted to ‘attempted murder’.71 The question may be asked as to whether of not the Court would have taken the same position if for example only one or two shots were fired at the applicant, and he was not wounded? The court was less than impressed by the fact that it was presumed by the appropriate authorities that no agents of the State were involved in either of the shootings in question.72 The Court did not mince any words when it found that the investigations started immediately after the shootings, some five years earlier, had yielded no tangible result73 with the conclusion that the failure of the investigation (notwithstanding the political climate in the area), would only lead to an exacerbation of a ‘climate of impunity and insecurity’.74 It may be that the Court raised the benchmark standard higher in finding: ‘In the instant case, it was therefore incumbent on the authorities to have regard, in their investigation, to the fact that State agents may have been implicated in the attacks. In that connection, whether of not the applicant had formally identified the security forces as being the assailants was of little relevance. In short, because the investigations carried out in the instant case did not allow the possibility that given the circumstances of the 69
The Susurluk Report, ibid. para. 46. Ibid., para. 97. 71 Ibid., para. 100. 72 Ibid., para. 105. 73 Ibid., para. 103. 74 Ibid., para. 104. 70
93
Stuart E. Hendin Q.C. case the security forces might have been implicated in the attacks and because up till now, more than five years after the events, no concrete and credible progress has been made, the investigations cannot be considered to have been effective as required by Article 2.’75
What has evolved from Yasa is the notion that the Court will be prepared to consider a shooting without causing death as a breach of Article 2, and further that time delays in the production of ‘results’ of an investigation may also be cause for a finding of an Article 2 breach. The Cakici76 case demonstrates how earlier decisions of the Strasbourg Court are modified or refined with the passage of time. The facts in Cakici date back to an incident that took place in early November 1993 in a Turkish village. It was alleged by the applicant that his brother was taken into custody (of some sort) by security forces and later transferred to two places of detention; that he had been tortured and had not been seen since. The respondent took the position that the individual in question had never been taken into custody, as there were no records indicating the same. As if to add some confusion, it was alleged by the authorities that Ahmet Cakici’s identification card had been found (approximately one and a half years later) on or near the body of an individual killed by the police during a terrorist clash. Further, some two and a half years after the initial incident took place the local ‘prosecutor’77 ruled that his office was without jurisdiction to deal with the matter, finding that in all likelihood the card found near a dead terrorist was sufficient indication that Ahmet Cakici was dead. The respondent did not at all impress the Commission with the argument as put forward. Further, the Commission noted four distinct areas of failure to meet (former) Article 28 (1) (a) obligations,78 implying that the difficulties it faced in determining the facts were in large part a result of not having significant evidence available to it.79 At the end of the day, the Commission 75
Ibid., paras. 106 and 107. Cakici v. Turkey (1999) ECHR 23657/94. 77 Under Turkish domestic law, this was the official charged with the responsibility of conducting the investigation. 78 See former Article 28, now Article 38: 1. If the Court declare the application admissible, it shall a. pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities. 79 Cakici, supra, para. 44. 76
94
The Evolution of the Right to Life by the European Court of Human Rights was of the view that there was a ‘very strong probability’ that Ahmet Cakici was dead, and that in all likelihood the same came about consequential to firstly, detention, and then ill treatment during the same.80 The Commission expressed the view that both Articles 2 and 3 had been violated as it pertained to Ahmet Cakici. The Court accepted without any comment, as it does in almost every case, the findings of fact of the Commission. But it is here that the Court goes further, in its findings of fact, than did the Commission. The Court accepted that Ahmet Cakici had been detained and had been the subject of serious ill treatment.81 However, the Court then went on to hold that, as a matter of fact, there was sufficient circumstantial evidence82 upon which it was to be concluded beyond a reasonable doubt, that Ahmet Cakici had died as a result of his detention and subsequent treatment.83 Having determined, or made this finding of fact (that the young man must be presumed dead), in the circumstances of this case the responsibility for the same rested with the State. The Court then went on to hold that as result of the State offering no ‘explanation’ or ‘justification’, the death in question was as a result of the actions of State authorities, and there was a violation of Article 2 of the Convention.84 In addition to this finding against the State, the Court also found a violation of the same Article as a result of the ‘inadequate’ investigation. Cakici, in addition, goes one step further than just a finding of a breach of Article 2, in that it recalls some of the witness evidence in this matter, and finds as well a breach of Article 3 as it pertains to the treatment of the deceased before his (assumed) death.85 It is of note that in so finding, the Court said that it did so to the standard of proof beyond a reasonable doubt.
80
Ibid., para. 84. Ibid., para. 85. 82 Black’s Law Dictionary, Sixth Edition, defines circumstantial evidence as ‘The proof of various facts or circumstances which usually attend the main fact in dispute, and therefore tend to prove its existence, or to sustain, by their consistency, the hypothesis claimed. Or as otherwise defined, it consists in reasoning from facts which are known or proved to establish such as are conjectured to exist.’ 83 Cakici, supra, para. 85. 84 Ibid., para. 87. 85 Ibid., para. 92. 81
95
Stuart E. Hendin Q.C. It must be further noted that pursuant to Article 15 (1) of the Convention there can be no derogation from either Articles 2 or 3.86 Brief reference will be made to the Ertak87 matter. The facts of this case are not complicated. In the latter part of August 1992, on his way home from work, the applicant’s son was stopped and apparently taken into police custody. Others, as the Commission found and held as a matter of fact, saw him in the custody of the security forces. The young man was not seen again. The applicant firstly made an application to the police, and then to the appropriate prosecutors’ office as to the whereabouts of the young man. These came to naught. The Commission held that agents of the State had killed the young man, and further that the investigation into the incident had been both ineffective as well as inadequate.88 It is of note that the Commission was of the opinion that the fact of the death at the hands of authorities had been proven ‘beyond a reasonable doubt.’89 If one looks at the following comments of the Court: ‘Stressing that the authorities are under an obligation to account of individuals under their control, the Court observes that no explanation has been offered into what occurred after Mehmet Ertak’s arrest. Accordingly, it considers that in the circumstances of the case the Government bore responsibility for Mehmet Ertak’s death, which was caused by agents of the State after his arrest . . .’90
It is now seen that the Court is applying a reverse onus on the State to offer a detailed explanation, however the decision appears to be silent as to the level of proof that the explanation must attain. It could be argued (by common law attorneys) that if the Court has made a finding ‘beyond a reasonable doubt’ that the State need only then raise (by argument or defense) a ‘reasonable doubt’ as it would pertain to the findings of fact made regarding the death. It is submitted however that the State would have a far more difficult task in trying to overcome a finding of fact dealing with the inadequacy of the post incident investigation.
86
See Article 15 (1): No derogation from Article 2, except in respect of deaths form lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 87 Ertak v. Turkey (2000) Application No. 20764/92. 88 Ibid., para.108. 89 Ibid., para. 129. 90 Ibid., paras. 132 and 133.
96
The Evolution of the Right to Life by the European Court of Human Rights As it has done in almost every one of its decisions, the Court reiterated the fundamental importance of Article 2, however a careful reading of the following is rather important in appreciating the evolutionary nature of the Court in dealing with Article 2. The Court stated: ‘The obligation is not exclusively concerned with the intentional killing from the use of force by agents of the State but also extends, in the first sentence of Article 2 § 1, to a positive obligation on States to protect by law the right to life. This requires by implication that there should be some form of adequate and effective official investigation when individuals have been killed a result of the use of force.’91
Following this logic, the Court is saying rather clearly that in the case of any death involving the use of force, inquiries to a certain standard must be undertaken, and applying considerations from other cases, this may also include keeping the appropriate relatives of deceased persons apprised of the outcomes of these investigations. It is suggested that this case may be an attempt by the Court to influence police conduct as well. The Velikova92 matter is helpful in this review as it adds further definition to the obligations of the State in dealing with allegations of breaches of Article 2. In Velikova, the police arrested Tsonchev in late September of 1994. After about twelve hours in police custody medical officials were called to the police station where the individual was pronounced dead. The facts suggest that immediately after the police reported the matter through a chain of command and examinations or investigations were undertaken. From the time of the death until the time of the actual hearing before the Strasbourg Court the investigation had yielded no results. The Court in reaching its conclusions cited the earlier decisions of McCann v United Kingdom, Ireland v. United Kingdom,93 and Cakici.94 However, and in addition, the Court in this matter commented: ‘The Court considers that where an individual is taken into police custody in good health but is later found dead, it is incumbent on the State to provide a plausible explanation of the events leading up his death, failing which the authorities must be held responsible under Article 2 of the Convention. In assessing evidence, the 91
Ibid., para. 134. Velikova v. Bulgaria (2000) Application No. 41488/98. 93 Ireland v. the United Kingdom, (1978) 2 EHRR 25. 94 Cakici v. Turkey, supra. 92
97
Stuart E. Hendin Q.C. general principal applied in cases has been to apply the standard of “proof beyond a reasonable doubt” . . . However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control or custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.’95
As the cases develop the Court seems to become more definitive. In the above, for example, the use of the word ‘must’ is not by accident, nor is the term ‘convincing’. However, the question may be asked as to how the court is to be ‘convinced’ as to any particular set of facts or presumptions, when it relies of the findings of fact made by the Commission in most, if not almost all cases. In addition, Velikova not only adds definition to the onus or obligation on the State to explain the circumstance or cause of death beyond a reasonable doubt, but as well suggests standards to be met in measuring the conduct of the post incident investigations to be undertaken when a death involving use of force has taken place. The decision recites: ‘The investigation must be, inter alia, thorough, impartial and careful . . . The Court further considers that the nature and degree of scrutiny which satisfies the minimum threshold of the investigation’s effectiveness depends on the circumstances of the particular case. It must be assessed on the basis of all the relevant facts and with regard to the practical realities of the investigation work. It is not possible to reduce the variety of situations which might occur to a bare check list of acts of investigation or other simplified criteria. The Court considers that unexplained failure to undertake indispensable and obvious steps is to be treated with particular vigilance. In such a case, failing a plausible explanation by the Government as to the reasons why indispensable acts of investigation have not been performed, the State’s responsibility is
95
Velikova, supra, para. 70.
98
The Evolution of the Right to Life by the European Court of Human Rights engaged for a particularly serious violation of its obligation under Article 2 of the Convention.’96
While it has not been the focus of this discussion, nevertheless it would be an error to overlook the comment that the Court made regarding the applicability of Article 13.97 In two comments by the Court the interlocking of the two Articles became forged: ‘The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The scope of the obligation under Article 13 also varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the respondent State. A violation of Article 2 cannot be remedied exclusively through an award of damages. Given the fundamental importance of the right to protect life, Article 13 imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation likely to lead to those responsible being identified and punished and in which the complainant has effective access to the investigation proceedings.’98
The Ilhan99 case provides some clear direction as to the fact that the Court is able to expand its capacity to find breaches of Article 2 even where there has been no death, either actual or deemed. In Ilhan, the applicant’s brother had been detained in one fashion or another and had been severely beaten causing severe injuries with debilitating sequelae. Approximately two months after the incident took place the local prosecutor made a decision not
96
Ibid., paras. 80, 81, and 82. See Article 13: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ 98 Velikova, supra para. 89. 99 Ilhan v. Turkey, (2000), Application No. 22277/93. 97
99
Stuart E. Hendin Q.C. to prosecute any of the members of the police or other security forces involved. This application was brought by the victim’s brother who alleged that, inter alia, the beating was of such a nature that it threatened life, and as such it violated not only Article 3, but Article 2 as well. The Commission had taken the view that there had been a violation of rights protected under Article 2, although, the individual had not been killed. The Court did not find a breach of the rights afforded under Article 2, but notwithstanding the obiter of the Court is of significance. The Court found that even though the force used did not cause death, nevertheless the Court still had the inherent ability to examine cases dealing with ‘use of force, under Article 2.100 The Court specifically commented: ‘Nevertheless, the degree and type of force used and the unequivocal aim or intention behind the use of force may, amongst other factors, be relevant on assessing where in a particular case, the State agents’ actions in inflicting injury short of death may be regarded as incompatible with the object and purpose o Article 2 of the Convention.’101
It may be hypothesised at this juncture that the intent referred to may be developed by the application of circumstantial evidence then leading to the further application of a reverse onus. However, in fairness to the Court the decision also reflects the judicial observation that very few cases involving injury, while not causing death, will be brought under the umbrella of Article 2, at least as far as the actions of the perpetrators vis-à-vis the victim are concerned.102 The Court rather held that the provisions of Article 3 are in this area appropriately read in conjunction with Article 1.103 The Court, in Ilhan found a breach of the protections afforded under Article 3 of the Convention, both in the actual acts involved, including the delay in obtaining medical treatment of the victim as well as the failure to carry out an effective investigation into the circumstances of the incident. The issue of proportionality in the use of force was, inter alia, discussed in the Gul104 case, and in that regard attention should be given to the earlier reviewed case of Andronicou and Constantinou v. Cyprus.105 The facts in 100
Ibid., para. 75. Ibid., para. 76. 102 Ibid., para. 76. 103 Ibid., para. 77. 104 Gul v. Turkey (2000) Application No. 22676/93. 105 Andronicou and Constantinou v. Cyprus (1998) 25 EHHR 491. 101
100
The Evolution of the Right to Life by the European Court of Human Rights Gul date back to the early morning hours of 8 March 1993. The police were in the process of a search operation when they knocked on the door of the apartment occupied by the deceased and his family and while he was in the process of unlocking and opening the door three members of the police, with automatic weapons opened fire through the door, wounding the deceased who subsequently died from the wounds. This decision, after focusing on the fundamental importance of Article 2, then considered whether the actions of the police officers themselves were warranted under the circumstances. The Court was very clear in noting that its role is not to become a criminal court in the allocation of degree of individual fault.106 Rather in noting that it is competent to consider the notion of proportionality in the use of force, and in so doing found that: ‘The reaction however of opening fire with automatic weapons on an unseen target in a residential block inhabited by innocent civilians, women and children was as the Commission found, grossly disproportionate.’107
The decision in Mahmut Kaya108 dealt with the case of a disappearance that occurred on 21 February 1993, with the body of the deceased being found shot in the back of the head with other marks on his body some six days later. Of note was the fact a report was made with the local police that the deceased had disappeared on 22 February 1993. The deceased was a physician who had been suspected of providing medical aid to members of a political movement opposed to the government. The Court ruled that it had not been demonstrated beyond a reasonable doubt that any State authority or anyone acting on behalf of the State was involved in the killing, but the Court looked in another direction in reaching its decision of a breach of Article 2. The Court rather, focused on the issue as to whether the State failed in a duty to protect the individual from a known risk The Court was satisfied, on the basis of material that it had before it, that the deceased was at some risk, and further that the authorities either were aware, or in the alternative, ought to have been aware that this risk could come from either individuals or groups acting with the knowledge (known or implied) of authorities. In this case the Commission had conducted its hearings in both Strasbourg as well as Ankara.109 The reasoning of the Court
106
Gul, supra para. 80. Ibid., para. 81. 108 Mahmut Kaya v. Turkey (2000) Application No. 22535/93. 109 Ibid., para. 61. 107
101
Stuart E. Hendin Q.C. bears a striking resemblance the issues that were raised in Osman.110 However, the result was not the same. It is a given, that each case before the Court is to be decided on its own merits and facts, but some of the comments made in the judgment bear consideration. After reciting the principle of the positive duty to protect life, the court reminded, from Osman, that the State has the obligation aforementioned when they ‘knew or ought to have known’ of a real risk to the life of a particular individual.111 The Court accepted that in this case the authorities either were aware, or ought to have been aware of risks to individuals112 and then the issue became whether the authorities did all they could to avoid risk to the deceased.113 Here, the Court directed attention to the number of incidents involving violence, and recited a number of its own decisions chronicling similar issues114 and lack of independent investigation. However, with the greatest respect to the Court, it may be argued that in this particular case a double standard has been applied as between the United Kingdom and Turkey. It can be strongly argued that in Osman, the facts identify areas where the authorities either knew, or ought to have known of the risks but through negligence did not act ‘to protect life.’ There is little issue whether the Court reached the appropriate decision in finding a breach of Article 2. It is suggested, however, with the greatest of respect to the Court, that this case reflects a double standard adopted by the Court when looks dispassionately at both Mahmut Kaya and Osman. The Timurtas115 case reported in mid-June of 2000 is helpful in that it adds definition to, inter alia, when the presumption of death will arise in considering breaches of Article 2. In this case, the applicant’s son was taken into police custody in mid-August of 1993 and had not been seen since. The applicant made inquiries and as well went through the official complaint procedure regarding his son but with no result. The applicant was told in early June of 1996 that nothing further was to be done by the authorities regarding this matter. There is one factor that sets this case apart from a number of the others, and which caused the Court to comment in rather blunt terms about the conduct of the authorities. The case was brought to the Commission in early February of 1994. The applicant filed, as evidence, a document that he said 110
Osman v. the United Kingdom. Mahmut Kaya v. Turkey supra, para. 81. 112 Ibid., para. 91. 113 Ibid., para. 92. 114 Ibid., para. 96. 115 Timurtas v. Turkey (2000) Application No. 23531/94. 111
102
The Evolution of the Right to Life by the European Court of Human Rights had been prepared by the police, and which purported to make specific reference to the custody of the missing person. The various cases in which Turkey was the respondent reflect an increasing degree of frustration on the part of the Court with the failure of the respondent to co-operate with the Commission (as required by the Convention) in the conduct of its inquiries. In this regard attention should be given to the Commission’s evaluation of the evidence available to it, and the reasons for the same.116 The Court carried further in stating: ‘More importantly, the Court would emphasize that Convention proceedings do not in all cases lend themselves for rigorous application the principle of affirmanti incumbit probatio (he who alleges something must prove that allegation). The Court had previously held that it is of the utmost importance for the operation of the system of individual petition instituted under the former Article 25 of the convention (now replaced by Article 34) that States furnish all necessary facilities to make possible a proper and effective examination of applications…It is inherent in proceedings relating to cases of this nature, where an individual applicant accuses State agents of violating his rights under the convention, that in certain instances solely the respondent Government have access to information capable of corroborating or refuting these allegations. A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only reflect negatively on the level of compliance of the respondent State with its obligations…but may also give rise to the drawing of inferences as to the well-foundedness of the allegations. In this respect the Court reiterates that the conduct of the parties may be taken into account when evidence is being obtained.’117 ‘…It is insufficient for the Government to rely on the allegedly secret nature of the document, which in Court’s opinion, would not have precluded it from having made available to the Commission’s delegates…Consequently, the Court finds it appropriate to draw an inference from the Government’s failure to produce a document without a satisfactory explanation.’118
In this case, before the Court, the Commission in expressing its frustration with the respondent reminded the Court that it should consider positions 116
Ibid., paras. 39 and 41. Ibid., para. 66. 118 Ibid., para. 67. 117
103
Stuart E. Hendin Q.C. taken by other judicial organs in circumstances not dissimilar. While the Commission held that it could not find a violation of Article 2 on the death question, it nevertheless argued: ‘The Inter-American Court has on several occasions pronounced that forced disappearances frequently involve the violation of the right to life. In the Inter-American system, a violation of the right to life as a consequence of forced disappearance can be proved in two different ways. First, it may be established the facts of the case at hand are consistent with an existing pattern of disappearances in which the victim is killed. Second, the facts of an isolated incident of fatal forced disappearance may be proved on their own, independent of a context of an official pattern of disappearances. Both methods are used to establish the state control over the victim’s fate, which, in conjunction with the passage of time, leads to the conclusion of a violation of the right to life.’119
The Court had little difficulty in arriving at the conclusion that the individual must be presumed dead, thus triggering the finding of a breach of Article 2, but some of the comments made in the judgment bear some closer scrutiny. Attention has already been given to the earlier decisions of the Court in the Cakici, Ertak and Kaya cases. However, in this case, the Court seems to go further by suggesting that in cases where the State has not given what the Court has described as a ‘plausible’ explanation as to the fate of the individual in question, and where the Court has accepted ‘sufficient’ circumstantial evidence, the court will make a finding of fact that the individual died whole in State custody.120 The Court then added: ‘It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died.’121
The Court, it appears, was anxious to conclude a breach of Article 2 in the disappearance and presumed death in this matter, however, it was obliged to take into account its earlier decision in Kurt. The Court in Timurtas suggested that in this case it was satisfied the individual was actually taken into custody, while in Kurt the individual was only last seen surrounded by soldiers. The Court then suggested that there was a substantial difference 119
Ibid., para. 80. Ibid., para. 82. 121 Ibid., para. 83. 120
104
The Evolution of the Right to Life by the European Court of Human Rights between the time frame of four and a half years in Kurt, and the six and a half years in the Timurtas case.122 With the greatest of respect to the Court, it is suggested that this last comment by the Court is, at best, a legal fiction. Rather it can be argued that the Court was, in Timurtas, expressing its strongest criticism at the State in question, not only for its failure to protect life, but also the manner in which it engaged in deliberate refusal of its Convention obligation to assist in the investigations undertaken by the Commission. As if to reinforce the last suggestion, the Court was rather blunt in expressing its views of the investigation done, or perhaps better stated, not done by the respondent when the Court described: ‘The lassitude displayed by the investigating authorities poignantly bears out the importance attached to the prompt judicial intervention required by Article 5 §§ 3 and 4 of the Convention which as the Court emphasized in the case of Kurt, may lead to the detection and prevention of life-threatening measures in violation of the fundamental guarantees contained in Article 2.’123
The Court in Tanli124 seemed disposed to be giving direction to the specifics of the adequacy, or lack thereof in the post incident investigation carried out by the authorities, and in particular the medical professional involved in the post mortem examinations. Further, this case is instructive in that it demonstrated that the Court would have regard for the investigations and opinions of other bodies when considering a particular case. In Tanli, the son of the applicant was taken into police custody on 27 June 1994, and the following day the family was notified that the young man had died of a heart attack while in custody. The public prosecutor opened an investigation dossier, and in due course indictments were filed against three of the police officers involved. Further a court order was issued, in early May 1995, indicating that the body should be exhumed and sent for a post mortem examination. The report of that examination was of little assistance, but it was critical of the first examination done after the death of the young man.
122
Ibid., para. 85. Ibid., para. 89. 124 Tanli v. Turkey (2000) Application No. 26129/95. 123
105
Stuart E. Hendin Q.C. In the early portion of the case report the Court refers to two reports of the European Committee for the Prevention of Torture,125 and the Court makes specific note of the fact that in Turkey, the Committee found: ‘…that torture and other forms of severe ill treatment were important characteristics of police custody’.126 ‘…the practice of torture and other forms of sever ill treatment of persons in police custody remains widespread in Turkey’.127 ‘In its second public statement issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that Torture and other forms of ill-treatment were still important characteristics of police custody.’128
Further the Court referred to the Manual on the Effective prevention and Investigation of Extra-legal, Arbitrary and Summary Executions adopted by the United Nations in 1991.129 The Court by implication was most critical of what the Turkish authorities had not done by way of post-incident medical examinations. The Court reminded that individuals in police or other custody are to be protected by the authorities130 and again reminded that not only is proof required to be given by the State to rebut a presumption of ‘beyond a reasonable doubt,’ but the Court went on to say again: ‘Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring that detention. Indeed the burden of proof may be regarded as resting on the authorities to provide a satisfactory explanation.’131
The decision is noteworthy in its choice of wording. The Court said rather clearly that the State had not accounted for the death in question132 rather than that the State had given an insufficient accounting. There is, it is 125
Ibid., paras. 103−106. Ibid., para. 105. 127 Ibid. 128 Ibid., para. 106. 129 Ibid., para. 107. 130 Ibid., para. 141. 131 Ibid., para. 142. 132 Ibid., para. 147. 126
106
The Evolution of the Right to Life by the European Court of Human Rights suggested, a fundamental difference between ‘no account’ and an ‘insufficient account.’ Further, the Court directed attention to the fact that (in its opinion) the post mortem examination was ineffective and further observed that no autopsy had been carried out. The Court gave specific attention to the deficiencies that it considered fundamental in this case.133 In so doing the Court was further developing its case law by enunciating again standards that it deemed requisite for investigations required under Article 2. The Court then made it very clear that the primary responsibility for the implementation of such investigation rested with the appropriate State. The final case to be considered deals not with the issue of death, and the causation or responsibility for the same, under Article 2, but rather is a roadmap for States in their review of incidents involving the use of force casing death in such a way that future breaches of the Article may be, by example avoided. The Jordan134 case addressed the issue of violations of Article 2 dealing with the alleged failure of the State to undertake proper investigations in all four of the cases that comprise this judgment. All four cases find their basis in the Northern Ireland, and involve either (the then) Royal Ulster Constabulary, the military, and suspected members of the Irish Republican Army. Three of the cases, (Jordan, Kelly, and Mckerr) involve deaths caused by the security forces, while the last (Shanaghan) deals with the investigation subsequent to a death caused by a person, or persons unknown. The court judgment in all four cases is for all intents and purposes the same. The Court reminded at the commencement of the discussion of the law, the fundamental importance of Article 2 to the operation of the European Convention. It is clear from the judgment that by virtue of Article 15, there can be no derogation from Article 2 in peacetime.135 The Court then, as if to recapitulate some of its earlier decisions, again reminded: ‘Where the events in issue lie wholly or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries or death which occur. Indeed,
133
Ibid., paras. 120 and 150. Hugh Jordan v. the United Kingdom (2001) Application No. 24746/94. (This case report also incorporates the judgments in Mckerr v. the United Kingdom (2001) Application No. 28883/95; Kelly & Others v. the United Kingdom, (2001) Application No. 30054/96; Shanaghan v. the United Kingdom, (2001) Application No. 37715/97. 135 Jordan v. the United Kingdom, supra, para. 102. 134
107
Stuart E. Hendin Q.C. the burden of proof may be regarded as resting on the authorities to provide a satisfactory explanation.’136 ‘The text of article 2, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. [. . .] Consequently the force used must be strictly proportionate to the achievement of the permitted aims.’137 ‘The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.[ . . .] The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life, and in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave the initiative to the next kin either to lodge a formal complaint or take any responsibility for the conduct of any investigative procedures.’138 ‘For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events.[. . .] This means not only a lack of hierarchical or institutional connection but also a practical independence…’139 ‘The investigation must also be effective in the sense that it is capable of leading to a determination of weather the force used in such cases was or was not justified in the circumstances [. . .] and to the identification and punishment of those responsible.[. . .] Any deficiency in the investigation which undermines its ability to
136
Ibid., para. 103. Ibid., para. 104. 138 Ibid., para. 105. 139 Ibid., para. 106. 137
108
The Evolution of the Right to Life by the European Court of Human Rights establish the cause of death of the person or persons responsible will risk falling afoul of this standard.’140
In addition the Court was clear that these processes must be done in an expeditious manner in order to maintain public confidence.141 Lastly, while the practice may vary from case to case, nevertheless the investigation process must be subject to some form of public scrutiny,142 implying transparency in the process, and as well, in order that legitimate interests be seen to be protected, there must, in all cases, provision for some form of ‘next of kin’ involvement. It is of some note that judgment reflects that it is not for the Court to delineate in any detail which procedures should be adopted in the conduct of such investigations,143 however, and with the greatest of respect to the Court, that is precisely what was done in the earlier cases involving Turkey as the respondent. The Court, by specifically identifying specific defects, is by implication telling States what it feels must be done. 4. Conclusion The cases that the Court has dealt with that have been brought before it alleging beaches of Article 2 have been diverse in fact. From the early cases dealt with, the Court has shown flexibility in its ability to expand the parameters as to how it will deal with cases involving alleged breaches. The Court has expanded its line of reasoning to be both positive in the creation of obligation on the part of States, as well as reinforcing the negative aspects of what a first reading of the Article would suggest. The Court has taken the obligations as enunciated in Article 2, and combined the same with the obligations as required by Article 1. Where the Court could not, because of the evidence, or lack thereof available to identify violators of Article 2, the Court expanded the duties to impose the obligation on States to conduct post-incident inquiries, and then to set standards for the same. The Court expanded its mandate to call into scrutiny, not only the acts in question, but as well all facets of the circumstances that may have led to the incident including, but certainly not limited to, planning and command and control. 140
Ibid., para. 107. Ibid., para. 108. 142 Ibid., para. 109. 143 Ibid., para. 123. 141
109
Stuart E. Hendin Q.C. The obligations upon the State were specified to include death caused by agents of the State, or others in authority, but to cases where the perpetrators were unknown. The Court in its judgments offered refinements to the standards of proof that would be required, the acceptability of circumstantial evidence, the applicability of different types of onus of proof, and when and under what circumstances inferences (of fact) may be drawn. It might appear that at times the Court was drawing, with some degree of artificiality, time lines that were inconsistent. Nevertheless the Court has throughout conducted itself as a ‘court of equity’ requiring those who come before it seeking relief to arrive with ‘clean hands’. It will be interesting to revisit the line of cases that develop over the next 15 years to see if the Court remains as innovative as it was during the first time frame studied. One would hope however, that as States accept their obligations as High Contracting Parties to the Convention, that the number of refereed cases will decline. In the affairs of man, that outcome is highly unlikely.
110
Sexual Harassment in Paid Employment in the European Union* V. Kelly Keane**
Contents 1. Introduction 2. What Constitutes Sexual Harassment? 2.1. Quid pro quo Harassment 2.2. Hostile Working Environment 3. Sexual Harassment in the European Union 3.1. Directive 76/207/EEC 3.2. Code of Practice 3.3. The New EU Directive 3.4. Research in EU 4. Should the Victim Confront her Harasser? 5. Effects of Sexual Harassment on Victims 6. Conclusion 1. Introduction During the late decades of the twentieth century more and more women have participated in paid employment in the workforce1 and left the traditional role afforded to them by a male dominated society, as homemakers and child minders. However this has caused tension between men and women as the traditional role accorded to women has changed and some men do not see *
Edited version of a paper ‘Sexual harassment in the European Union with special emphasis on case law in the Republic of Ireland and the United Kingdom’ presented for LL.M in International Human Rights 2003 in National University of Ireland, Galway, Ireland. ** Nora Veronica T. Kelly Keane, B.A, LL.B, LL.M. 1 Women now comprise an increasing share of the world’s labour force - at least one third in all regions except in northern Africa and western Asia. The United Nations The World’s Women 2000: Trends and Statistics. There has been a steady increase in the number of women in waged labour in all member States of the EU from 29 per cent in 1970 to 51.2 per cent in 1998 (Data from CEC, 2000). Female employment rates in the EU reached 52.5 per cent in 1999 European Commission, ‘Employment in Europe 2000’ p. 9. 111
V. Kelly Keane women as equals in the paid labour market and as a result women have encountered many obstacles in the labour market in achieving their potential. In reality women are not on an equal footing with their male counterparts despite efforts by many equality organisations and feminists, as well as recent European Union equality legislation aimed to protect female worker rights. Conditions of work as fundamental human rights in international law are guaranteed by many Human Rights Conventions and Charters. The principle of equal treatment for women and men has received backing in international legal instruments in the United Nations by various Conventions,2 the International Labour Organisation,3 the Council of Europe, especially with the European Social Charter, the European Union.4 The European Union plays an important role in world political affairs as it has approximately seven per cent of the world population5 and accounts
2
Universal Declaration of Human Rights 1948; International Covenant on Economic, Social and Cultural Rights, United Nations, General Assembly Resolution 2200A (XXI) entered into force on March 23, 1976; Convention on the Elimination of All Forms of Discrimination against Women, United Nations General Assembly Resolution 34/180, entered into force on 3 September 1981. 3 International Labour Organisation 1919, Article 427 of the Treaty of Versailles contained the first ILO Constitution with was revised in 1944. The ILO operates as a specialist agency of the UN and sets standards in international employment. The Declaration of Philadelphia 1944 which was incorporated into the ILO constitution makes specific references to employment rights as part of a human rights framework. According to a study by (ILO) in 1992, in the 23 countries surveyed, 15−30 per cent of working women had been subjected to sexual harassment, which varied from explicit demands for sexual intercourse to offensive remarks. ‘Combating sexual harassment at work’, in Conditions of Work Digest, Vol. 11, No. 1, 1992, ISBN 92-2-108257-1. 4 1986 EEC-European Parliament Directive to study the effect of sexual harassment. 1991 European Council of Ministers adopted a Code of Practice on Measures to Combat Sexual Harassment included in Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, Official Journal, 24 February 1992, L 049, pp. 1−8. 5 EU has a population of 380.8 million at present and with enlargement to 25 member States in 2004 will have a population of 454.9 million, Eurostat, Statistical office of the European Communities, < http://europa.eu.int/comm/eurostat/ > accessed on 2 May 2003.
112
Sexual Harassment in Paid Employment in the European Union for over a quarter per cent of the world’s Gross Domestic Product.6 At the time the research for this article was carried out, the European Union (EU) consisted of fifteen member States7 and enlargement with the entry of Eastern European States was forth-coming.8 Articles 6 (1) and 49 of the Treaty establishing the European Union (TEU) provide that only a European State which respects the principles of liberty, democracy and human rights and fundamental freedoms may apply for membership of the European Union. Sex equality between men and women in the employment sphere has always being important to legislators in the European Community since the principle of sex equality was imbued with special status in Article 119 in the Treaty of Rome, which established the European Economic Community (EEC). Sex equality was one of the few substantive social policies included in the original treaty. In the early years of the EEC, social policy was limited as economic policy was of uppermost priority and equality provisions were based on productive factors. Subsequent treaties and directives have expanded fundamental rights and social policy. The 1992 Treaty on European Union (Treaty of Maastricht)9 introduced a number of new elements in EU treaties that required the development of a new human rights policy. This Treaty now provides for the first time that the EU is founded on the principle of human rights and fundamental freedoms, democracy and the rule of law according to Article F. The 1997 Amsterdam Treaty re-emphasised this human rights policy and inserts a new Article 6 in the Treaty on European Union, which reaffirms that the European Union ‘is founded on the principles of liberty, democracy, respect for human rights 6
GDP – per capita purchasing power, an economic performance measurement that indicates a person’s disposable income: source Central Intelligence Agency World FactBook (2003). 7 1957 − Belgium, France, Germany (West), Luxembourg, Italy and the Netherlands signed the Treaty of Rome establishing the European Economic Treaty (EEC); 1973 – Denmark, Ireland and the United Kingdom join the EEC; 1981 – Greece becomes a member; 1986 – Spain and Portugal join the EEC; 1995 − Austria, Finland and Sweden. 8 May 2004 – Cyprus (only the Greek southern part of the island has joined), Czech Republic, Hungary, Poland, Estonia, Latvia, Lithuania, Malta, Slovenia, Slovakia and will bring membership up to 25 member States in the European Union. 2007 is the date set for Bulgaria and Romania to join the EU. Croatia, Turkey and Macedonia are applicant States but no date is set yet for their membership. 9 This came into effect in May 1999 and established new forms of co-operation in foreign and security policy.
113
V. Kelly Keane and fundamental freedoms, and the rule of law, principles which are common to the Member States’. The 1997 Treaty of Amsterdam significantly expands the Community’s powers to take appropriate action to combat a wide range of forms of discrimination and stresses the respect of human rights guaranteed by the 1950 European Convention of Human Rights. But despite the fact that women are entitled to the same rights as men in employment in the areas of access to employment, remuneration, working conditions and career development and there is legislation to ensure these rights, in reality women do not have equality with men in the area of employment especially in the way women are treated and harassed in paid employment by their superiors and colleagues. ‘Sexual harassment’ coined by feminists in the 1960s, is the name given to unwelcome behaviour of a sexual nature that women are subjected to in the workplace. Sexual harassment is not a new phenomenon despite not having a name until the 1960s when Constance Jones in her book Sexual Harassment 10 identified incidents of sexual harassment in United States as women began working in textile mills in New England, and when male printers in Boston conducted a campaign of intimidation to force women out of the printing industry in 1835. Sexual harassment is a prevalent problem that many women and indeed some men face in their daily employment in the workplace, however, this essay will only concentrate on sexual harassment where men harass women as part of their working lives. It is only in the recent past that sexual harassment has gained recognition as a gender issue that affects women’s potential in the workplace. Many women perceive sexual harassment in the workplace as a gender issue where men subject their work colleagues to uninvited embarrassing comments, gestures, physical humiliation and sometimes violent behaviour. This is evidence of a power struggle in which men do not want to treat women as equals in the work sphere. As one author states, ‘Of all the forms that violence against women can assume, sexual harassment is the most pervasive and disturbing because it is deemed ‘normal’ behaviour by men and not an assault on the female dignity and is commonplace throughout workplaces in all regions of the world’.11 It affects women in all employment spheres, whether they find employment in the
10
C. Jones, Sexual Harassment, New York: Facts on File (1996), pp. 3−90. A. Srinivasan ‘Sexual Harassment’ Indian Journal of Gender Studies 5(1). January−June 1998, pp. 115−125.
11
114
Sexual Harassment in Paid Employment in the European Union public or private sector and it has legal and economic12 implications. In this writer’s opinion, occurrences of sexual harassment should not be viewed as isolated incidents affecting only the women who are at the receiving end of the sexual harassment, but should rather be construed as aggression by men against the rights and dignity of all women to freely choose their sphere and place of employment. Anyone in the workforce can be a victim of sexual harassment but research by Equal Opportunities Commission13 found that those most likely to be sexually harassed in the United Kingdom are (1) divorced or separated women, (2) a young woman who has been in a job for less than a year, (3) a woman working in a non traditional job, (4) a woman in a low-paid job and (5) a lesbian or gay man. This list illustrated that sexual harassment is linked to power and the perceived vulnerability of the person in question rather than based on sexual attraction by the perpetrator to the recipient of the sexual harassment. Due to limitation of space this article focuses on the issue of sexual harassment in the European Union, even though ‘sexual harassment’ is a worldwide phenomenon. Firstly I will address what constitutes sexual harassment, employers’ reactions and then examine the protection given to women under European Union employment law legislation. The conclusion covers some of the reasons why men feel sexual harassment is a normal part of working life and why despite legislation in place women are still being subjected to sexual harassment in the workplace. 2. What Constitutes Sexual Harassment? Sexual Harassment may take one of two forms: (i) Quid pro quo harassment and (ii) Hostile working environment.
12
A study by Working Women magazine found that sexual harassment costs the typical Fortune 500 Company USD 6.7 million a year in increased absenteeism, employee turnover, low morale and low productivity, < http://www.rpcomsilt.com > accessed on 7 April 2003. Also U.S. Merit Systems Protection Board, studies of federal government workers estimate that sexual harassment cost the U.S. government USD 267 million in lost productivity and turnover. 13 The Equal Opportunities Commission is an independent, non-departmental public body, funded primarily by the government and provides advice and information for individuals and employers at <www.eoc.org.uk>, accessed on 15 April 2003.
115
V. Kelly Keane 2.1. Quid pro quo Harassment Quid pro quo harassment occurs in a situation where somebody in a position of authority within a workplace, who has power to make decisions relating to the worker in question makes a specific threat, exchange or bargain whereby some work benefit or detriment of a subordinate worker is made conditional on sexual compliance, i.e. promotion, discipline or discharge. 2.2. Hostile Working Environment Abusive or hostile working environment occurs in the workplace where supervisors or work colleagues create an atmosphere of unwelcome sexually conduct that the person to whom the conduct is addressed is no longer comfortable in the working environment and their work performance is affected. 3. Sexual Harassment in the European Union The European Union feels that as sexual harassment is an affront to the dignity of the individual and a hindrance to productivity it therefore constitutes an obstacle to an efficient labour market in which men and women work together. The EU perspective is based upon the fundamental principle of equality between men and women under Article 2 and Article 3 (2) of the EC Treaty and evidenced in the case-law of the European Court of Justice. Sexual harassment has adverse consequences for workers subjected to it and workers who witness or have knowledge of it; it also has consequences for employers in terms of economic efficiency, negative publicity and legal implications.14 3.1. Directive 76/207/EEC Under European Union (EU) equality legislation, female workers were protected from sexual harassment as part of the Equal Working Conditions Directive 76/207/EEC but sexual harassment was not defined as a separate issue to be protected in the Equality Directive of 1976. The European Commission in its 1991 Recommendations defined sexual harassment in its code of practice as ‘unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work’. 14 Europa at < http://europa.eu.int/scadplus/leg/en/cha/c10107.htm > accessed on 15 April 2003.
116
Sexual Harassment in Paid Employment in the European Union 3.2. Code of Practice The 1991 European Commission Code of Practice: Protecting the Dignity of Women and Men at Work complements the recommendation and gives practical guidance to employees, employers and trade unions on the protection of dignity at work. The Code provides that it ‘is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. Sexual attention becomes sexual harassment if it is persisted once it has been made clear that it is regarded by the recipient as offensive’. Whether behaviour constitutes sexual harassment is assessed from the point of view of the victim of the alleged abuse rather than from the point of view of the alleged perpetrator as stated in the Commissions Code of Practice. This issue of subjectivity arose in a number of cases15 that came before the UK courts; the question was whether the conduct was unwelcome to the victim? It is the unwanted nature of the conduct that distinguishes sexual harassment from friendly behaviour that is welcome in the workplace. The motive behind the sexual harassment is unimportant and there does not need to be a sex related purpose in the harasser’s mind when he subjects a woman to what she perceives as sexual harassment in the workplace. It is enough that the harassment occurs because she is a woman to constitute sexual harassment. The Code of Practice of the European Commission aims to ensure that sexual harassment does not occur in the workplace and if it does occur to ensure that adequate provisions are available to the employee to deal with the sexual harassment, and to ensure that management can prevent its recurrence. While recommendations have no binding force under European Union legislation and they do not confer rights on individuals, the European Court of Justice held in Grimaldi v. Fonds des Maladies Professionelles16 that: ‘[N]ational courts are bound to take Recommendations into consideration in order to decide disputed submitted to them, in particular where they clarify the interpretation of national provisions adopted in order to implement them or where they are designed to supplement Community measures’. 15
UK Strathclyde Regional Council v. Procelli (1986) Industrial Relations Law Reports (IRLR) 134; UK Stewart v. Cleveland Guest (Engineering) Ltd. (1994) IRLR 440; UK Wileman v. Minilec Engineering Ltd (1998) IRLR 144. 16 EC Grimaldi v. Fonds des Maladies Professionelles, Case C-322/88, (1989) E.C.R. 4407, (1991) 2 C.M.L.R. 265.
117
V. Kelly Keane 3.3. The New EU Directive The European Union has introduced new legislation designed to protect workers from sexual harassment in the workplace by way of a new Directive which is due to come into force in 2005. The new provisions update the 1976 EEC Directive on equality at work.17 The Directive defines sexual harassment for the first time in binding European Union legislation. The proposed update from Directive 76/207 defines sexual harassment as: discrimination on the grounds of sex at the workplace when unwanted conduct related to sex takes place with the purposes or effect where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading humiliating or offensive environment. The new proposed definition has met with mixed response from private sector employers and employees unions and women lobby groups. The employers do not agree with the definition as sexual harassment constituting sex discrimination and feel that sexual harassment should be dealt with by regulators in individual Member States. The European Trade Union Congress and the European Women’s Lobby welcome the proposal for a new definition of sexual harassment so far as it is identified, defined and highlighted, and unlike the employers believe that it should be treated as a form of sex discrimination.18 This new European Union Directive introduces important provisions on preventive measures against sex discrimination and sexual harassment and will be of benefit to women working in Member States of the European Union, especially in those Member States where sexual harassment protection is absent from national legislation. To quote Ann Diamantopoulos: ‘. . . with this directive, the EU introduces important new provisions on preventive measures against sex discrimination and sexual harassment. The general level of awareness of sexual
17
Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Official Journal L 269, 05/10/2002 P. 0015-0020. 18 C. O’Brien, ‘The Global Employer’, at accessed on 12 April 2003.
118
Sexual Harassment in Paid Employment in the European Union harassment is very poor. Now sexual harassment, absent from most national laws today, will finally have a name’.19
The new Directive contains provisions that include a definition of sexual harassment applicable across the Member States of the European Unions, provisions on enforcement of the law and the removal of the limit on compensation and reparation. This Directive also puts responsibility on employers to take preventive measures against all forms of discrimination especially sexual harassment. Unfortunately female workers who are the victims of sexual harassment will have to wait until 2005 before they can rely on its provisions and it is probable that many more female workers will be subjected to sexual harassment in the course of their daily employment in the next few year as they have been in the last years as has been show by research done on behalf of the European Union in the area of sexual harassment in employment. 3.4. Research in EU There is numerous empirical evidence dating from 1980 from several EU countries that showed the existence of sexual harassment in the workplace and its negative consequences on both employer and employees; however it was not until the late 1980s that is became an issue in the EU when Michael Rubenstein20 showed that no Member State had any explicit legal prohibition against sexual harassment. It was only in Ireland and the United Kingdom where the courts accepted that sexual harassment amounted to unlawful sex discrimination. The Irish government during the EU Presidency of 1990 was instrumental in defining and confronting sexual harassment in the workplace. Since then the Council of Ministers and the European Commission have endeavoured to eliminate sexual harassment from the workplace. The European Union research carried out in the 1990s addressed the issue of sexual harassment in the workplace showing that sexual harassment is prevalent in all Member States and that 30 to 50 per cent of female
19 Employment and Social Affairs Commissioner, the European Commission Representative in Ireland at accessed on 20 April 2003. 20 M. Rubenstein, ‘The dignity of women at work: a report on the problem of sexual harassment in the member States of the European communities’, Luxembourg, European Community Information Service [distributor] 1988.
119
V. Kelly Keane employees have experienced some form of sexual harassment.21 The primary goal of the surveys conducted between 1987 and 1997 was to document the prevalence of sexual harassment in the workplace. But the lack of a universal definition of what constitutes sexual harassment makes it difficult to objectively measure it within the European Union jurisdiction, and to interpret the results of the surveys and studies carried out in the Member States.22 The surveys found that women in male-dominated jobs experience more sexual harassment than in other jobs. According to the report sexual harassment manifests itself in a variety of ways, the most common being verbal forms such as ‘sexual jokes’ and ‘sexual remarks about body, clothes and sex life’ and non verbal forms such as ‘staring and whistling’23. Physical forms of sexual harassment constitute ‘unsolicited physical contact’ and even amounts to ‘sexual assault or rape’ in some instances.24 In Ireland, 25 per cent of women working in the Civil Service; 45 per cent of women working in the semi-State Electricity Supply Company; and 14 per cent of women in the retail sector, reported sexual harassment.25 This seems to suggest that more women who work in the public sector are subjected to sexual harassment than women in the private sector. In the United Kingdom, 89 per cent of women in the National Health Service and 90 per cent of the Police Force in 1992 reported sexual harassment, as well as 54 per cent of all women in a national survey reported that they were subjected to sexual harassment.26 The Third European Survey on Working Conditions based on face-toface interviews with 21,500 EU workers found that two per cent, which equals to three million workers, are subjected to sexual harassment and this leads to health problems and absenteeism.27 The European Union study also found that there was a lack of an uniform definition of what constitutes sexual harassment in the EU and the studies clearly show that the issue of sexual harassment is not uniformly perceive or addressed by employers and legislation in the northern and 21
‘Sexual Harassment at the workplace in the European Union’, Luxembourg, Official Publications of the European Communities, Bernan Associates [distributor] 1999 p. 5. 22 Ibid., p. iii. 23 Ibid. 24 Ibid. 25 Ibid., p. 15. 26 Ibid. 27 Violence at work in the European Union, at< www.ilo.org>, accessed on 23 April 2003.
120
Sexual Harassment in Paid Employment in the European Union southern countries of the EU. It concluded that sexual harassment is common to both areas but much less importance is attached to the issue in southern countries and the level of awareness of women’s rights was not very high apart from in the southern countries of France and Italy.28 The 1999 study also concluded that the way female employees in both regions perceive sexual harassment is different. Female workers in the southern countries tend to consider that sexual harassment which they encounter in the workplace is something that they have to tolerate it because ‘it is part and parcel of being a woman’.29 The researches in Spain found that people are unaware of the existence of the European Union Recommendations and the Code of Practice and that several companies were not in favour of the EU strategy on sexual harassment, as they believe it is up to the company itself to devise a strategy for countering sexual harassment. The study also concluded that there is a large discrepancy between the number of instances where women are subjected to sexual harassment in the work place and the low instance of complaints by female workers. Other studies show that complaints of sexual harassment are usually solved in an informal way.30 4. Should the Victim Confront her Harasser? The survey carried out by European Union31 found that most employees responded to sexual harassment by ignoring it, for example, in Austria 33 per cent, in Germany 51 per cent, and in the United Kingdom 30 per cent of those who had been sexual harassed in the workplace ignored the behaviour of their harasser. Reasons given by the harassed women for ignoring the behaviour were fear of negative consequences, the fear that their complaint would not be taken seriously and the hope that by ignoring the harassment it would stop automatically. In other cases the women were too stunned or surprised to complain. The Dutch survey found that women were usually so overwhelmed by the unwanted sexual behaviour in the workplace that they ignored or avoided the behaviour.32
28
‘Sexual harassment at the workplace in the European Union’, Official Publications of the European Communities, Luxembourg, 1999, p. iv. 29 Ibid. 30 Ibid., p. 7. 31 Ibid., p. 21. 32 Ibid., p. 22.
121
V. Kelly Keane In a case that came before a UK Industrial Tribunal33 involving a woman who had been subjected to sexual harassment over a nine-month period but had not complained, the Court said the length of the period of abuse did not show she was not subjected to sexual harassment. Other facts were that was the only female employee and the perpetrators of the abuse were two company directors. They subjected her to sexual harassment in commenting on her hair and clothing and offered to ‘warm her up’. The Tribunal awarded her damages holding that ‘it would be ideal and possibly sensible to confront her harassers, but her failure to do so did not detract from her credibility’. 5. Effects of Sexual Harassment on Victims Many people have dismissed sexual harassment as an unimportant workrelated issue as they assume it has no serious implications for the victim or the employer, but research has shown that sexual harassment impacts on the health and productivity of the employee who is subjected to sexual harassment and has repercussions for the employer where it is not confronted. A British Occupation Health Research Foundation34 survey estimated that 18 million days are lost every year due to harassment in the workplace. A report for the Wainwright Trust says that ‘Harassment in the workplace will continue to cost employers time, money and serious disruption unless and until they are prepared to learn from their own and others mistakes’.35 The report found that employees who make complaints about sexual harassment, even if they win their case, rarely stay on in employment with the organisation because the sexual harassment complaint leaves a legacy of resentment, hostility and difficulty for all parties concerned in getting back to normal working life. The effects of sexual harassment on female workers take many forms and the outcome depends on the character of the female involved and may not be noticeable to others. Victims often change work plans, leave their employment where the sexual harassment took place to avoid confrontation with the harasser. Victims often have physical symptoms of stress, such as stomach problems and headaches. They can also become depressed and irritable and suffer from lower self-esteem, self-respect and self-confidence.
33
Case No 14400321/02 Hampton v. CX Access Systems Ltd., 21 June 2002, EOR No. 114 February 2003 p. 32. 34 Wainwright Trust, ‘Destructive conflict and bullying at work’, February 2002. 35 See < www.wainwrighttrust.org.uk> accessed on 25 April 2003.
122
Sexual Harassment in Paid Employment in the European Union The Sexual Harassment in the workplace in the European Union survey36 found that sexual harassment had consequences for female employees as more than half of the employees reported negative consequences for their personal wellness. A third of harassed employees described negative effects for them in the work sphere, such as resignation, change of workplace a reduction in tasks and poorer working conditions. Sexual harassment had negative consequences personally for those who had been subjected to sexual harassment in the workplace, also in the areas of job satisfaction, working environment and self-motivation. According to the survey implications for a person suffering harassment 71 per cent of those claiming to have suffered sexual harassment lose their jobs through constructive dismissal, such as through resignation as a result of difficulties in performing their work or through dismissal by their employer.37 The survey also found that the health of persons subjected to sexual harassment suffered and gave rise to frequent absence from work as a result of sickness such as sleeping disorders, weight fluctuations, anxiety and sexual problems. The most frequently complained effect of sexual harassment on a personal level was loss of self-esteem and a feeling of being a sex object.38 The Third European Survey on working conditions found that two percent of all workers are subjected to sexual harassment and that 46 per cent of the workers exposed to sexual harassment experience stress and that 31 per cent of workers exposed to sexual harassment have been absent from work over the last twelve months.39 6. Conclusion This article offers evidence that sexual harassment is a worldwide hindrance to the potential of female employees in the area of paid employment outside the home. Despite legislation by the European Union outlawing sexual harassment in the workplace and domestic legislation in Member States women are still subjected to sexual harassment. It is also established that all women in the European Union do not consider conduct as constituting sexual harassment in the same light, women in the northern States of the 36
Sexual Harassment at the workplace in the European Union, Official Publications of the European Communities, Luxembourg, 1999 at p. 6. 37 Ibid., p. 230. 38 Ibid. 39 See accessed on 16 April 2003.
123
V. Kelly Keane European Union are well aware of their right but women in Spain, Portugal and Greece see sexual harassment as something they have to put up with in the workplace as it comes with the territory of being a woman. The EU has an important part to play in highlighting sexual harassment issues and informing all women in the new Member States that sexual harassment is not something they have to submit to in their working lives. Sexual harassment coined as a term in the 1960s by feminists is not something that just occurred in the 1960s but has been around since women went into traditional male spheres of employment. As seen from legislation and case-law40 it is the victim’s reaction that is the key in determining what constitutes sexual harassment. The European Union’s definition of sexual harassment is a subjective one determined by what the recipient regards as offensive behaviour as defined by the European Commission’s Code of Practice – behaviour which is unreasonable and offensive to the recipient − but as we have seen in the case-law examined above the harasser tries to claim that the behaviour was not unwelcome or offensive to the female employee. In many cases41 sexual harassers claim that the woman welcomed the sexual advances and that the conduct complained of did not constitute sexual harassment. It is obvious that despite legislation in place in the European Union to protect women from sexual harassment in the workplace women are still subjected to sexual harassment in their working lives.42 Since 1960 when the term ‘sexual harassment’ was first coined they has been a higher awareness of the rights of women in the workplace. However this has not stopped incidences of sexual harassment in the workplace. The question to be addressed is therefore why do men sexually harass women during their working lives? We know from research that sexual harassment is not just about sexual attraction but is linked to power as espoused in the patricidal viewpoint. The way we use language and the change from the traditional stereotyping has 40
UK Strathclyde Regional Council v. Procelli (1986) IRLR 134 UK Stewart v. Cleveland Guest (Engineering) Ltd. (1994) IRLR 440. UK Wileman v. Minilec Engineering Ltd (1998) IRLR 144. UK Case No 14400321/02 Hampton v. CX Access Systems Ltd., 21 June 2002. 41 UK Reed & Another v. Stedman (1999) in Thomson’s Labour and Law Review p. 5. 42 See Garage Proprietor v. A Worker, Ireland: ECD 85/1; A Limited Company v. One female Employee EE 10/1998; Health Board v. BC and the Labour Court (1994) European Law Reports (ELR)27; A Female Employee v. A Company (2000) ELR 147.
124
Sexual Harassment in Paid Employment in the European Union helped women to demand change and equality in the workplace and women will no longer tolerate sexual harassment as being ‘normal’ part of their working lives. This change in equality for women does not alter the fact that women are still subjected to sexual harassment in their working lives. The way forward is to educate boys and girls at a young age to prevent stereotyping and to promote equality among the sexes: that women are no longer to be assigned domestic roles only and if they chose to be in the labour market they are to be treated with dignity and respect and are free to achieve their potential in the labour market. A study done by Dr. Jeanne Gregory43 found that employers are not learning from their mistakes and organisations are more concerned with avoiding publicity than taking remedial action when subjected to harassment claims from their employees. Employers have a key role to play in helping create a climate at work in which incidents of sexual harassment will be unacceptable to both men and women. Employees can contribute to preventing sexual harassment as part of their working lives by making it clear to their colleagues and by raising an awareness of sexual harassment so that it will be undesirable and will not be tolerated in their working environment.44 The way forward for employers is to create an environment in which employees are encouraged to raise problems in a low key way as soon as the harassment occurs and have structures in place so that management can deal with the problem quickly and effectively. Employees should also support a victim of sexual harassment who makes a complaint against another employee by making sure that the harasser knows that such behaviour is unacceptable to them; therefore not leaving employers vicariously liable under domestic legislation for acts done by employees in the course of their employment.45 An employer will be liable for prosecution for sexual 43
J. Gregory, ‘Picking up the pieces: how organisations manage the aftermath of harassment complaints’ <www.wainwrighttrust.org.uk>, accessed 27 April 2003. 44 The EU Code of Practice on Measures to Combat Sexual Harassment adopted in 1992 recognizes that ‘a procedure to deal with complaints of sexual harassment should be regarded as only one component of a strategy to deal with the problem. The prime objective should be to change behaviour and attitudes, to seek to ensure the prevention of sexual harassment.’ From EU Code of Practice on Measures to Combat Sexual Harassment included in Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, Official Journal L 049, 1−8 (24 February 1992). 45 Ireland: 1998 Employment Equality Act gives a statutory basis for employer liability in Section 15. ‘Anything done by a person in the course of his employment
125
V. Kelly Keane harassment by their employees if they have not exercised reasonable care to prevent and correct sexually harassing behaviour by their employees46. Female workers themselves have their part to play too in eradicating sexual harassment from the workplace. The time has come for women to shout ‘STOP’ and put forwarded a united front in the face of sexual harassment and should not condone or accept sexual harassment as ‘normal’ something women have to ‘put up with’ as a condition of employment. The legislation is in place to protect women’s right not to be sexual harassed during their working lives but the attitudes of both women and men will have to change so as to eradicate sexual harassment from the workplace.
is to be treated as if it was done by the employer, whether or not the employer knew or approved of the act. However the employer has a defence to vicarious liability under the 1998 Act if he can prove to the Court that he took such steps as were reasonably practicable to prevent the employee from doing the particular act, or from doing acts of that description in the general course of his employment. UK Bracebridge Engineering v. Darby (1990) IRIL 6, the employers’ failure to investigate a claim of sexual harassment made the company liable. The Employment Appeal Tribunal found that the enquiry made into the allegation by the general manager were superficial as “according to the company’s own disciplinary procedure, Miss Reynolds ought to have been aware that such an allegation of a serious incident of sexual harassment could have led to her suspending the two men involved and should in any event have led to a full investigation’. 46 Under Sweden’s Equal Opportunities Act, 1991, Section 6, ‘employers have a duty to prevent sexual harassment from occurring in the workplace’. In addition to giving employers a duty to prevent sexual harassment from occurring, Section 22 requires employers to investigate the incidence of sexual harassment in their workplaces. The French Labour Code (Code de Travail), Articles 122−134 and 230 requires employers to provide an employee handbook forbidding moral harassment. UK, Caniffe v. East Riding of Yorkshire Council (2000) IRLR 555. EAT decided that the proper approach lower tribunals should take when deciding on employer liability for sexual harassment was firstly, to identify whether any preventative steps had been taken by the employer and having done so, then consider what further steps the employer could have taken which were reasonably practicable. This decision was made in a sexual harassment and assault case in which the lower tribunal held that ‘by having disciplinary grievance and personal harassment policies in place, which had been drawn to the attention of all employees, the Council had discharged its liability as it had taken all practicable and reasonable steps possible to prevent sexual harassment happening at work.’ The lower tribunal had not considered what further steps the Council could have taken. On the basis of this case, UK employers may be required to take other reasonable steps to prevent harassment in addition to establishing a grievance and harassment policy.
126
Sexual Harassment in Paid Employment in the European Union Most women have altered their attitude to sexual harassment but men have to adjust their attitude to female colleagues too so as to obliterate sexual harassment from the workplace. As Ronald M. Green47 advocates men should use the ‘Kid Sister Test’, imagine your kid sister or teenage daughter gets a job in your office; ‘would you like them to hear what you hear, see what you see, walk where you walk?’ If these are situations where you would not want your kid sister to experience then it is time to start changing the working environment to ensure that female workers will be free from sexual harassment in the workplace.
47
‘The ‘Kid Sister Test’ for Sexual Harassment’, Human Rights for Workers, Volume III, Bulletin No. 17, (21 September 1998) < http://www.senser.com/biii17.htm >, accessed on 28 April 2003.
127
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg: une comparaison générale par Juris Rudevskis* ‘Il est vrai sans doute, et l’histoire en fournit d’abondants témoignages, que, par suite de l’évolution des conditions sociales, bien des choses que l’on demandait jadis à des associations de moindre envergure ne peuvent plus désormais être accomplies que par de puissantes collectivités. Il n’en reste pas moins indiscutable qu’on ne saurait ni changer ni ébranler ce principe si grave de philosophie sociale: de même qu’on ne peut enlever aux particuliers, pour les transférer à la communauté, les attributions dont ils sont capables de s’acquitter de leur seule initiative et par leurs propres moyens, ainsi ce serait commettre une injustice, en même temps que troubler d’une manière très dommageable l’ordre social, que de retirer aux groupements d’ordre inférieur, pour les confier à une collectivité plus vaste et d’un rang plus élevé, les fonctions qu’ils sont en mesure de remplir eux-mêmes.’1
Table des matières Introduction A. La définition du principe et quelques rappels historiques B. Quelques remarques liminaires Chapitre I. La subsidiarité judiciaire (procédurale) A. La subsidiarité active (retenue judiciaire) B. La subsidiarité passive (activisme judiciaire) Chapitre II. La subsidiarité substantielle (matérielle) A. La subsidiarité active (retenue judiciaire) B. La subsidiarité passive (activisme judiciaire)
*
Juriste au greffe de la Cour européenne des Droits de l’Homme. Toutes les opinions exprimées ci-dessous sont strictement personnelles et n’engagent que leur auteur. 1 (‘Quadragesimo anno’, lettre encyclique de S.S. Pie XI du 15 mai 1931, § 79, in: Acta Apostolicae Sedis, no 23, p. 203). 129
Juris Rudevskis Introduction Lors des débats juridiques concernant un nombre considérable de domaines – l’Union européenne, le droit communautaire, le système européen et international de protection des Droits de l’Homme, enfin, le droit international général et le droit constitutionnel – la notion de subsidiarité apparaît si souvent que l’on commence, à juste titre, de se douter sur le point de savoir si les protagonistes perçoivent vraiment l’étendue de cette notion. Quoi qu’il en soit, la subsidiarité – louée par les uns, critiquée et remise en cause par les autres – reste l’une des notions clés dans l’analyse des grands systèmes étatiques et interétatiques de l’époque actuelle. Qui plus est, tout en soulignant les problèmes et les lacunes de sa mise en œuvre, la plupart des auteurs n’hésitent pas à voir dans le principe de subsidiarité l’une des composantes nécessaires d’un ordre démocratique.2 A. La définition du principe et quelques rappels historiques Quelle est donc la définition du principe de subsidiarité? D’un point de vue général, c’est un principe d’organisation de toute société humaine d’après lequel il ne faut faire ensemble (ou à un niveau supérieur) que ce que l’on ne peut pas, avec autant de qualité, accomplir seul (ou à un niveau inférieur). Cette définition laconique semble être adaptée à tous les contextes où la notion de subsidiarité peut apparaître.3 Beaucoup de gens invoquant habituellement le principe de subsidiarité seront surprises en apprenant que son origine remonte aux sources 2 Cf., par exemple, D. Shelton, ‘Subsidiarity, democracy and human rights’, in: Broadening the Frontiers of Human Rights. Essays in Honour of Asbjørn Eide, ed. Donna Gomien, Scandinavian University Press, 1993, p. 44 et s. 3 Les études des aspects théologiques, philosophiques et sociologiques de la subsidiarité sont très nombreux, et nous ne pouvons pas les citer tous dans le présent article. On peut renvoyer au recueil très récent ‘Le principe de subsidiarité’, Bruxelles, Bruylant, 2002. En outre, cf. A. Utz, ‘The Principle of Subsidiarity and Contemporary Natural Law’, Natural Law Forum, Vol. 3, 1958, p. 177; J. Finnis, ‘Natural Law and Natural Rights’, 1980, pp. 146-147; F.-X. Kaufmann, ‘The Principle of Subsidiarity Viewed by the Sociology of Organizations’, The Jurist, Vol. 48, 1988, pp. 275-291; C. Millon-Delsol, ‘Le principe de subsidiarité’, Paris, PUF, Que sais-je?, 1993; du même auteur, ‘L’Etat subsidiaire. Ingérence et noningérence de l’Etat: le principe de subsidiarité aux fondements de l’histoire européenne’, Paris, Léviathan, 1992; J.L. Clergerie, ‘Le principe de subsidiarité’, Paris, Ellipses, p. 1997, et J.-B. d’Onorio et al., ‘La subsidiarité. De la théorie à la pratique’. Paris, Téqui, 1994.
130
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg théologiques de la religion chrétienne concernant la gouvernance de l’Eglise. En effet, ce principe fut clairement défini au Ve siècle, lorsqu’un conflit opposa la chaire de St. Pierre aux Eglises locales d’Afrique, désireuses de disposer d’une large autonomie tout en restant en communion universelle avec Rome. Alors, en 424, Aurèle, l’évêque de Carthage, fit recours aux décisions du Concile œcuménique de Nicée de 325 pour en déduire que ‘tous les problèmes de ce genre [devaient] être résolus sur les lieux mêmes où ils apparaiss[ai]ent’.4 Six siècles plus tard, la notion de subsidiarité fut reprise par St. Bernard de Clairvaux, docteur de l’Eglise, dans son traité ‘De consideratione ‘. Au fil des siècles, divers auteurs ecclésiastiques ne cessèrent de réaffirmer l’importance du principe de subsidiarité en tant que modèle de l’organisation de l’Eglise catholique. Toutefois, c’est au XXe siècle que son application connut un vrai essor. En effet, le premier Pape à définir la subsidiarité fut Pie XI avec sa lettre encyclique ‘Quadragesimo Anno’5; depuis lors, tous les Pontifes – Pie XII, Jean XXIII, Paul VI et JeanPaul II6 – ont témoigné d’un fort attachement à cette pierre angulaire de l’organisation ecclésiale. Mise en valeur par le Second Concile du Vatican, la subsidiarité fut incluse sur la liste des dix principes directeurs pour la révision du Code de Droit Canonique de 1917.7 Et enfin, le nouveau Code de Droit Canonique, promulgué par la constitution apostolique de S.S. JeanPaul II ‘Sacrae disciplinae legis ‘du 25 janvier 1983, est imprégné du principe de subsidiarité dans une mesure encore plus importante que le Code précédent.8 En résumé, il ne sera pas trop audacieux de dire que la subsidiarité est naturellement inhérente à l’Europe, dont les racines historiques et culturelles sont étroitement liées à la religion chrétienne.9 4
Cf. J.C. Linnan, C.S.V., ‘Subsidiarity, Collegiality, Catholic Diversity, and Their Relevance to Apostolic Visitations’, The Jurist, Vol. 49, 1989, p. 403, ainsi que R. Eno, ‘Teaching Authority in the Early Church’, 1984, p. 159. 5 Citée en épigraphe. 6 Nous ne citons pas S.S. Jean-Paul Ier dont le pontificat ne dura qu’un mois et deux jours. 7 Cf. ‘Principia quae Codicis iuris canonici recognitionem dirigant’, in Communicationes, Romae, 1969, n° 1, pp. 79-80. 8 Pour les textes intégraux du Code et de la Constitution apostolique – et afin d’éviter des citations trop abondantes – nous nous limiterons à renvoyer au site Internet officiel du Vatican (www.vatican.va). 9 Pour un exposé plus ample du principe de subsidiarité dans l’Eglise catholique, cf. Cardinal H. de Lubac, ‘Les églises particulières dans l’Eglise universelle’, Paris, Aubier, 1971, p. 114, et J. Komonchak, ‘Subsidiarity in the Church: the State of the 131
Juris Rudevskis Quittons maintenant le droit canonique et déplaçons-nous dans un cadre plus séculier. Bien qu’à l’origine, les trois grands Traités communautaires10 reconnaissaient implicitement la subsidiarité, leurs auteurs ne se préoccupèrent guère de sa codification. Pour la première fois, la subsidiarité apparut dans l’article 12 § 2 du projet de traité d’Union européenne, élaboré par la commission du Parlement européen présidée par Altiero Spinelli. Cette disposition, élaborée essentiellement à l’initiative du député conservateur Christopher Jackson, se lisait ainsi: ‘Lorsque le présent traité attribue une compétence concurrente à l’Union, l’action des Etats membres s’exerce là où l’Union n’est pas intervenue. L’Union n’agit que pour mener les tâches qui peuvent être entreprises en commun de manière plus efficace que par les Etats membres œuvrant séparément, en particulier celles dont la réalisation exige l’action de l’Union parce que leurs dimensions ou leurs effets dépassent les frontières nationales. (...)’.11 Bien que le projet Spinelli, en tant que tel, ne se transforma jamais en un traité, la proposition précitée fut reprise par l’Acte unique européen de 1986. Cet Acte compléta le Traité sur la Communauté européenne par un nouvel article 130R instaurant un modèle d’action subsidiaire – mais uniquement dans le domaine de l’environnement.12 Il fallut cependant attendre l’entrée en vigueur du Traité sur l’Union européenne (traité de Maastricht)13, le 1er novembre 1993, pour que la subsidiarité soit érigée en un principe général pour l’ensemble des actions communautaires. En effet – et bien que l’on oublie souvent de le mentionner – l’une des innovations les plus importantes apportées par ce traité fut l’insertion, dans le traité CE, de l’article 3B (devenu l’article 5 après le traité Question’, The Jurist, Vol. 48, 1988, p. 300. Sur la subsidiarité dans la doctrine sociale de l’Eglise, cf. G. Feliciani, ‘Il principio di sussidiarietà nel magistero sociale della Chiesa’, Rivista internazionale dei diritti dell’uomo Vol. 7, 1994, n° 1, pp. 19-23. Enfin, nous nous permettrons de renvoyer à l’excellent compendium de G. Filibeck, ‘Human Rights in the Teaching of the Church’, Vatican, Libreria Editrice Vaticana, 1994, notamment pp. 64, 161 et 367. 10 Le traité de Paris du 18 avril 1951, instituant la Communauté européenne du charbon et de l’acier (CECA), et les traités de Rome du 27 mars 1957, instituant la Communauté économique européenne (CEE) et la Communauté européenne de l’énergie atomique (CEEA). 11 Cf. Journal Officiel des Communautés européennes (JOCE), 1984, C, n° 77, p. 33. Le projet Spinelli fut approuvé par le Parlement européen le 14 février 1984 (par 237 voix contre 31). 12 Le paragraphe 4 de l’article 130R. 13 Signé le 7 février 1992.
132
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg d’Amsterdam14). Le deuxième alinéa de cet article utilise une formule très bien réussie, reflétant avec beaucoup de succès l’idée de la subsidiarité: ‘Dans les domaines qui ne relèvent pas de sa compétence exclusive, la Communauté n’intervient, conformément au principe de subsidiarité, que si et dans la mesure où les objectifs de l’action envisagée ne peuvent pas être réalisés de manière suffisante par les États membres et peuvent donc, en raison des dimensions ou des effets de l’action envisagée, être mieux réalisés au niveau communautaire ‘. Le principe de subsidiarité est donc le principe fondamental régissant les relations de la Communauté et des Etats là où le chevauchement des compétences peut aboutir à un conflit.15 Les Etats européens n’ont aucune intention de diminuer la portée de la subsidiarité dans l’avenir; bien au contraire, suivant exactement la même approche, le projet de la Constitution européenne16 contient en son article 9 § 3, une définition suivante: ‘[l]’Union intervient seulement et dans la mesure où les objectifs de l’action envisagée ne peuvent pas être atteints de manière suffisante par les États membres tant au niveau central qu’au niveau régional et local mais peuvent l’être mieux, en raison des dimensions ou des effets de l’action envisagée, au niveau de l’Union’.17
14
Signé le 2 octobre 1997, le traité d’Amsterdam entra en vigueur le 1er mai 1999. Cf. notamment V. Constantinesco, ‘Article 3B’, in: Traité sur l’Union européenne, commentaire article par article, éd. V. Constantinesco, R. Kovar et D. Simon, Paris, Economica, 1995, p. 106-118; J. Rideau, ‘Compétences et subsidiarité dans l’Union européenne et les Communautés européennes’, A.E.A.P., 1992, p. 615; K. Lenaerts et P. van Ypersele, ‘Le principe de subsidiarité et son contexte: étude de l’article 3B du traité CE’, Cahiers du Droit européen, 1994, pp. 3-85; J.-P. Jacqué, ‘Le principe de subsidiarité et droit communautaire’, in: J.-B. d’Onorio et al., loc.cit., pp. 83-110, G. Strozzi, ‘Le principe de subsidiarité dans la perspective de l’intégration européenne: une énigme et beaucoup d’attentes’, Revue trimestrielle de droit européen, 1994, p. 375, et B. Gutknecht ‘Das Subsidiaritätsprinzip als Grundsatz des Europarechts’, in: Für Staat und Recht. Festschrift für Herbert Schambeck, ed. J. Hengstschläger. Berlin, Duncker & Humblot, 1994 p. 922-946. 16 Projet de traité approuvé les 13 juin et 10 juillet 2003 par la Convention européenne. 17 A cet égard, il échet de rappeler également le Protocole n° 30 au Traité CE sur l’application des principes de subsidiarité et de proportionnalité (ajouté par le Traité d’Amsterdam) et le projet de protocole portant le même titre (mais beaucoup mieux élaboré et contenant une procédure institutionnalisée pour un contrôle a priori du respect du principe de subsidiarité) et annexé au projet de la Constitution européenne. 15
133
Juris Rudevskis Le présent article ne se donne pas pour but d’analyser toutes les facettes du principe de subsidiarité tel qu’il apparaît en droit communautaire, en droit international, etc. Il s’agit d’un sujet extrêmement large et largement étudié, couvert par des thèses et des ouvrages volumineux, et il n’est pas question de le développer en ampleur dans cet Annuaire. Nous avons alors choisi de nous concentrer sur une seule question précise. En effet, la subsidiarité n’est pas caractéristique du seul ordre juridique communautaire; alors il serait intéressant de comparer la manière dont elle est perçue et appliquée dans la Communauté et dans les autres ordres juridiques supranationaux. Et là, le choix en faveur de la Convention de sauvegarde des Droits de l’Homme et des Libertés fondamentales (ci-après ‘la Convention EDH’) s’impose naturellement.18 Le développement récent de la jurisprudence de la Cour de Justice en matière des droits fondamentaux; la réactualisation de la question d’adhésion des Communautés ou de l’Union européenne à la Convention EDH; enfin, la proclamation, le 7 décembre 2000, de la Charte des Droits fondamentaux de l’Union europénne19 posent de plus en plus de questions quant aux relations entre les deux grandes juridictions européennes.20 La
18 Le principe de subsidiarité est l’une des notions clés de tout système interétatique de protection des droits de l’homme, qu’il soit universel ou régional. Sur ce point, cf. l’excellent article de P.G. Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’, American Journal of International Law, 2003, n° 1, pp. 38-79. Cf. également D. Shelton, op.cit., p. 50-52. 19 La Charte des Droits fondamentaux a été proclamée par la Commission européenne, le Parlement européen et le Conseil de l’Union européenne lors du Conseil européen de Nice. Cf. ‘La Charte des droits fondamentaux de l’Union européenne’: actes des journées d’études (dir. F.Benoît-Rohmer), Revue universelle des droits de l’homme, 2000, Vol. 12, n° 1-2, pp. 1-82. 20 A ce sujet cf. D. Simon, ‘Les influences réciproques entre CJCE et CEDH: Je t’aime, moi non plus?’, in: Les Cours européennes: Luxembourg et Strasbourg, Paris, Seuil, pp. 31-50; J.-P. Puissochet, ‘La Cour européenne des droits de l’homme, la Cour de justice des Communautés européennes et la protection des droits de l’homme’, in: Protection des droits de l’homme: la perspective européenne; mélanges à la mémoire de Rolv Ryssdal, éd. P. Mahoney, F. Matscher, H. Petzold, et L. Wildhaber, Köln; Berlin; Bonn; München: Carl Heymanns Verlag, 2000, pp. 1139-1151; W. Peukert, ‘The importance of the European Convention on Human Rights for the European Union’, ibidem, pp. 1107-1122, et D. Simon, ‘La Convention européenne des droits de l’homme et l’Union européenne, de Maastricht à Amsterdam: Aliquid novi? Quid juris?’, in: Law in greater Europe, towards a common legal area: studies in honour of H. Klebes, ed. B. Haller, H.-C. Krüger and H. Petzold, The Hague, Kluwer Law International, 2000, pp. 227-238.
134
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg comparaison de l’application du principe de subsidiarité par les Cours de Luxembourg et de Strasbourg est donc particulièrement importante. Les bases d’une analyse comparée des deux systèmes furent établies dans l’excellente étude de M. Joël Andriantsimbazovina, à laquelle nous ne cesserons pas de nous référer dans le présent article, tout en soulignant les développements importants survenus depuis la publication de ladite étude.21 B. Quelques remarques liminaires Avant de commencer notre analyse comparée, plusieurs remarques générales sont indispensables. En premier lieu, quel que soit le degré de clarté avec laquelle la subsidiarité apparaît dans le Traité CE et dans la Convention EDH, elle constitue une notion clé dans les deux systèmes. Il est vrai qu’à la différence du Traité CE22, nous ne trouverons pas dans la Convention une mention expressis verbis de ce principe. Néanmoins, comme on le verra, la subsidiarité constitue une création jurisprudentielle bien établie, fondée tantôt sur certaines dispositions précises de la Convention, tantôt sur la logique même sous-tendant celle-ci.23 En deuxième lieu, la notion de subsidiarité en droit communautaire et dans la jurisprudence de la Cour de Strasbourg n’est pas totalement 21 Cf. J. Andriantsimbazovina, ‘La subsidiarité devant la Cour de Justice des Communautés européennes et la Cour européenne des Droits de l’Homme’, in: Actes de la journée nationale d’études de la C.E.D.E.C.E. du 29 avril 1997, publiés dans Revue des affaires européennes, 1998, n° 1/2, pp. 28-47. 22 Et, en substance, du projet de la Constitution européenne (cf. supra). 23 Sur la subsidiarité dans la Convention EDH, cf. H. Petzold, ‘The Convention and the Principle of Subsidiarity’, in: The European System for the Protection of Human Rights, ed. R.St.J. Macdonald, F. Matscher and H. Petzold, Martinus Nijhoff Publishers, 1993, p. 41; O. Jacot-Guillarmod, ‘Règles, méthodes et principes d’interprétation dans la jurisprudence de la Cour européenne des Droits de l’Homme’, in: La Convention européenne des Droits de l’Homme. Commentaire article par article, dir. L.-E. Pettiti, E. Decaux et P.H. Imbert, Paris, Economica, 1994, p. 41-63; B. Conforti, ‘Principio di sussidiarietà e Convenzione europea dei diritti umani.’, Rivista internazionale dei diritti dell’uomo, Vol. 7, 1994, no 1, p. 4243; Liu Wei, ‘Les méthodes d’interprétation dynamique de la Convention européenne des Droits de l’Homme utilisées par la Cour européenne des Droits de l’Homme’, thèse, Université de Strasbourg, 2000, ainsi que F. Sudre. ‘A propos du dynamisme interprétatif de la Cour européenne des droits de l’homme’, Semaine juridique, 2001, n°28, pp. 1365-1368.
135
Juris Rudevskis identique; cette conclusion ne surprend pas si l’on pense à la nature différente des deux systèmes en cause. En effet, par la structure quasiétatique de ses institutions et par l’effet direct et la primauté de ses normes juridiques, l’Union européenne ressemble à un Etat fédéral, et son ordre juridique correspond à un modèle d’intégration. Par conséquent, lorsque l’on parle de la subsidiarité visée à l’article 5 du Traité CE, on sous-entend avant tout une ‘subsidiarité-concurrence ‘s’appliquant à la concurrence des compétences respectives de la Communauté et des Etats membres – d’une manière similaire aux conflits de compétences entre les pouvoirs centraux d’un Etat fédéral et les entités le composant. En revanche, la Convention EDH n’institue aucun pouvoir décisionnel supranational; la compétence de ses organes24 se limite strictement au contrôle du comportement des Etats.25 Il s’agit donc d’une logique internationaliste fort éloignée du modèle quasiétatique, et l’ordre juridique instauré par la Convention est celui d’harmonisation. Par conséquent, la subsidiarité au sens de la Convention EDH est une ‘subsidiarité-complémentarité ‘: le pouvoir d’intervention de la Cour est limité aux seuls cas où les institutions nationales sont incapables d’assurer une protection effective des droits garantis par la Convention.26 En troisième lieu, et dépit de cette différence, il est clair que les deux ordres juridiques possèdent des similarités fondamentales quant à leur contenu. Comme ceci a été maintes fois rappelé depuis le célèbre arrêt Costa c. ENEL, l’ordre juridique communautaire constitue un ordre juridique spécifique se rapprochant du type constitutionnel.27 Mais il faut reconnaître que la Convention EDH s’écarte elle aussi de la logique orthodoxe du droit 24 Les organes de la Convention sont: a) la Cour européenne des Droits de l’Homme créée sous sa forme initiale en 1959; depuis le 1er novembre 1998, date de l’entrée en vigueur du Protocole n° 11, elle fut remplacée par une Cour permanente; b) la Commission européenne des Droits de l’Homme, supprimée par le Protocole n° 11, et c) le Comité des Ministres du Conseil de l’Europe, que le Protocole n° 11 priva de sa fonction contentieuse, ne lui laissant que le pouvoir de surveiller l’exécution des arrêts de la Cour (article 46 § 2 de la Convention). Nous ne parlerons désormais que de la Cour EDH, seule compétente pour adopter des arrêts juridiquement contraignants. Toutefois, afin de montrer la cohérence de la jurisprudence de Strasbourg, la jurisprudence de la Commission EDH – organe parfois un peu négligé par la doctrine – sera également citée. 25 Cf. J. Andriantsimbazovina, op.cit., et F. Sudre, ‘L’Europe des Droits de l’Homme’, in: L’Europe et le Droit, Droits, n° 14, 1991, p. 105. 26 Cf. J. Andriantsimbazovina, op.cit., et F. Sudre, ‘Droit international et européen des Droits de l’Homme’, 4e éd., Paris, PUF, 1999, pp. 346-347, n° 199. 27 Cf. C.J.C.E., arrêt du 15 juillet 1964, Costa c. ENEL, 6/64, Rec. p. 1158.
136
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg international public et qu’elle se rapproche également de celle du droit constitutionnel. L’ensemble des Etats l’ayant ratifiée ne constitue-t-il pas une communauté fondée sur des valeurs communes, sur un ordre public commun, sur une vision plus ou moins unique du standard minimum des droits protégés?28 Sur ce point, il n’y a pas de grande différence entre la Convention et les déclarations des droits individuels que contiennent la plupart des constitutions étatiques modernes. Par conséquent, quelles que soient les différences entre les deux systèmes, les principes généraux auxquels y obéit la subsidiarité sont fondamentalement similaires. Avant de passer à l’analyse, il faut établir la distinction entre divers types de subsidiarité. La classification de celle-ci varie considérablement selon les auteurs.29 Comme le présent article est consacré aux rapports entre les juridictions, nous avons estimé opportun de suivre la dichotomie suivante entre deux types de subsidiarité: 1) la subsidiarité procédurale ou juridictionnelle, régissant les rapports entre les juridictions. Il s’agit là des compétences d’action et d’intervention (l’aspect dynamique); 2) la subsidiarité matérielle ou substantielle, régissant le rapport des compétences entre l’entité englobante et l’entité englobée. Il s’agit des compétences de décision et d’appréciation (l’aspect plutôt statique).30
28 Cf. E.A. Alkema. ‘The European Convention as a constitution and its Court as a constitutional court’, in: Protection des droits de l’homme: la perspective européenne; mélanges à la mémoire de Rolv Ryssdal, loc.cit, pp. 41-63, ainsi que J. Frowein, ‘The European Convention on Human Rights as the Public Order of Europe’, in: Academy of European Law, Vol. 1, Book 2, 1992, p. 267, et F. Sudre, ‘Existe-t-il un ordre public européen?’, in: Quelle Europe pour les Droits de l’Homme? La Cour de Strasbourg et la réalisation d’une ‘union plus étroite’, dir. P. Tavernier, Bruxelles, Bruylant, 1996, p. 39. Se référant à quelques publications antérieures, M. Andriantsimbazovina conclut même que la présence de subsidiarité dans la Convention EDH constitue un ‘indice de fédéralisation potentielle’ (cf. J. Andriantsimbazovina, op.cit). 29 Pour une analyse approfondie cf. P.G. Carozza, op.cit. 30 En analysant la Convention EDH, certains auteurs préfèrent suivre une dichotomie plus générale: ‘fonction procédurale’ (marge d’appréciation reconnue aux autorités étatiques) et ‘fonction substantielle’ (répartition des compétences entre l’organisation et les Etats); cf., par exemple, P. Tavernier, C. Grewe et R. Fabri, ‘Convention européenne des Droits de l’Homme: Interprétation et application par les organes de Strasbourg et par les organes nationaux’, Juris-Classeur – Droit international, fasc. 155-E, p. 7, n° 19. Cependant, il ne nous paraît pas très opportun
137
Juris Rudevskis Il va de soi que, dans des systèmes complexes, plus le degré d’intégration est important, plus la concurrence entre ces deux grandes tendances est grande. Il est vrai que, par définition, la subsidiarité a pour vocation de protéger l’entité englobée contre l’emprise de l’entité englobante. Toutefois, dans les deux systèmes en cause, elle est loin d’être un mouvement unilatéral. Bien au contraire, elle assure l’équilibre entre deux objectifs diamétralement opposés: d’un côté, la préservation de la souveraineté nationale et des pluralismes nationaux (mouvement centrifuge)31; de l’autre côté, l’intégration supranationale en vue de réaliser le plus parfaitement les objectifs de chacun des deux systèmes (mouvement centripète). La portée de la subsidiarité est alors considérablement équilibrée par l’application du principe de coopération.32 Le but du présent article est de montrer comment l’application du principe de subsidiarité par les deux grandes Cours européennes crée un mouvement oscillatoire permanent entre les deux tendances fondamentales: la subsidiarité ‘active ‘(la retenue ou, si l’on utilise le terme anglais, le self-restraint des deux juridictions), et la subsidiarité ‘passive ‘(l’activisme judiciaire, la subsidiarité cédant face à l’intégration et à l’harmonisation).33 C’est ce mouvement perpétuel qui assure l’équilibre des deux ordres juridiques.
d’insister sur la répartition des compétences dans le contexte judiciaire où la fonction normative proprement dite est absente. 31 Sur l’influence des deux juridictions sur l’exercice, par les Etats membres, de leur souveraineté, cf., pour la Cour de Luxembourg, J. Dutheil de la Rochère, ‘La jurisprudence de la Cour de Justice des Communautés européennes et la souveraineté des Etats’, in: La Constitution et l’Europe, journée d’études du 25 mars 1992, Paris, Montchrestien, 1992, p. 233, et, pour la Cour de Strasbourg, J.-F. Flauss, ‘La souveraineté de l’Etat et la Convention européenne des Droits de l’Homme’, in: Souveraineté de l’Etat et interventions internationales, dir. R. Drago, Académie de Sciences morales et politiques, Paris, Dalloz, 1996, p. 59. 32 Cf. J. Andriantsimbazovina, op.cit. Le principe de coopération est expressément inscrit à l’article 10 (ex-article 5) du Traité CE. Dans la Convention EDH, il transparaît à travers tout le système de la Convention (tout comme le principe de subsidiarité), mais la disposition le reflétant le plus complètement est l’article 1er: ‘Les Hautes Parties contractantes reconnaissent à toute personne relevant de leur juridiction les droits et libertés définis au titre I de la présente Convention’. 33 Il faut reconnaître que certains auteurs sont très sceptiques à l’égard de la dichotomie ‘retenue / activisme’ fondée sur la subsidiarité. Pour eux, l’autolimitation juridictionnelle peut résulter d’autres facteurs. Cf., par exemple, T. Tridimas, ‘The Court of Justice and Judicial Activism’, European Law Review, June 1996, pp. 199-210.
138
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg Examinons donc d’abord la subsidiarité judiciaire (procédurale; Chapitre I), puis la subsidiarité substantielle (matérielle; Chapitre II). Chapitre I. La subsidiarité judiciaire (procédurale) A. La subsidiarité active (retenue judiciaire) La première impression que l’on a de la subsidiarité judiciaire dans le cadre de la Communauté, c’est qu’elle se manifeste d’une manière relativement modérée – en tout cas moins accentuée que dans la Convention EDH. D’un côté, les juges nationaux restent les juges de droit commun du droit communautaire, car c’est à eux qu’il appartient en premier lieu d’appliquer ce droit et d’en sanctionner les violations.34 Quant à la Cour de Justice, elle ne dispose que des pouvoirs d’attribution expressément définis par le traité.35 De même, il est vrai que la subsidiarité judiciaire active transparaît très clairement dans le domaine de la responsabilité et de la répétition de l’indu, où l’épuisement des voies de recours internes est exigé avant de s’adresser à Luxembourg.36 Mais qu’en est-il de la procédure de renvoi préjudiciel, régie par l’article 234 du traité CE?37 Rappelons que cette disposition institue un mécanisme de coopération directe entre la Cour et les juridictions nationales, dont l’objectif principal est d’assurer l’application uniforme du droit communautaire. A première vue, la notion de subsidiarité peut paraître étrangère à cette procédure: par le biais du renvoi préjudiciel, la Cour de Justice s’immisce dans la fonction du juge national au cours de la procédure devant ce dernier; on peut dire qu’elle ‘descend ‘très sensiblement au niveau du juge national.38 Mais en réalité, la subsidiarité active est bel et bien présente dans la procédure de renvoi préjudiciel. Ainsi, la Cour a développé 34
Cf. A. Barav, ‘La plénitude de compétence du juge national en sa qualité de juge communautaire’, in: L’Europe et le Droit. Mélanges en hommage à Jean Boulouis, Paris, Dalloz, 1991, p. 297. 35 Il va sans dire que la Cour de Justice reste la juridiction ‘constitutionnelle’ suprême de la Communauté puisqu’elle seule peut constater l’invalidité d’un acte communautaire dérivé et qu’elle a le monopole de l’interprétation authentique des normes communautaires. A cet égard, cf. C.J.C.E., arrêt du 22 octobre 1987, aff. 314/85, Foto-Frost, Rec. p. 4199. 36 Cf. C.J.C.E. , arrêt du 26 février 1986, Krohn c. Commission, aff. 175/84, Rec. p. 753. 37 Ex-article 177. 38 Cf. J. Andriantsimbazovina, op.cit. 139
Juris Rudevskis toute une série de principes plus ou moins restrictifs régissant la recevabilité des renvois.39 Bien qu’elle a toujours fait preuve d’une grande tolérance envers les juridictions nationales, elle a néanmoins écarté les questions artificielles40, dépourvues de lien avec le litige au principal, imprécises ou trop générales.41 Le juge national est donc obligé à être plus précis et à accomplir un certain travail de réflexion avant de s’adresser à la Cour.42 Dans le cadre de la Convention EDH, la situation est quelque peu différente. De même que le juge national est le juge du droit commun du droit communautaire, il l’est également de la Convention EDH. Toutefois, à la différence du système communautaire, la Convention EDH ne crée aucun rapport direct entre les juridictions nationales et la Cour EDH. Il n’existe aucun système même de loin rapproché du renvoi préjudiciel: suivant la logique du droit international classique, toutes les relations entre la Cour et les organismes étatiques passent toujours par ‘l’entonnoir’ de l’agent du gouvernement, c’est à dire d’un haut fonctionnaire faisant partie du pouvoir
39
Pour un bref résumé de ces principes, cf. ‘Note informative sur l’introduction de procédures préjudicielles par les juridictions nationales’, publiée sur le site Internet de la Cour de Justice: http://curia.eu.int/fr/instit/txtdocfr. 40 Un exemple spectaculaire d’un litige fictif est représenté par deux arrêts rendus dans l’affaire Foglia c. Novello: C.J.C.E., arrêts du 11 mars 1980, 104/79, Rec. p. 745, et du 16 décembre 1981, 244/80, Rec. p. 3045. 41 Cf. C.J.C.E., les arrêts: du 16 juillet 1992, Lourenço Diaz, C-343/90, Rec. p. I4673; du 26 janvier 1993, Telemarsicabruzzo, C-320/90, C-321/90 et C-322/90, Rec. p. I-393; du 3 mars 1994, Eurico Italia, C-322/92, 333/92 et 335/92, Rec. p. I711; et les ordonnances: du 19 mars 1993, Banchero, C-157/92, Rec. p. I-1085; du 26 avril 1993, Monin Automobiles, C-386/92, Rec. p. I- 2049; du 9 août 1994, La Pyramide, C-378/93, Rec. p. I-3999; du 23 mars 1995, Saddik, C-458/93, Rec. p. I511; du 7 avril 1995, Grau Gomis et autres, C-167/94, Rec. p. I-1023; du 21 décembre 1995, Max Mara Fashion, C-307/95, Rec., p. 5085; du 20 mars 1996, Sunino et Data, C-2/96, Rec. p. I-1545;.du 25 juin 1996, Italia Testa, C-101/96, Rec. p. I- 3083, point 4; du 19 juillet 1996, Lahlov, C-196/90, Rec. p. I-3945; du 30 juin 1997, Banco de Formento e Exterior SA et autres, C-66/97, Rec. p. I-3759; du 8 juillet 1998, Agostini, C-9/98, Rec. p. I-4261; du 21 avril 1999, Charreire et autres, C-28/98 et C-29/98, Rec. p. I-1965. Certains auteurs ont parfois critiqué cette approche comme s’écartant de la logique de coopération sous-tendant l’article 234; sur ce point cf. J. Andriantsimbazovina, op.cit. 42 Sur l’évolution des conditions de recevabilité des renvois préjudiciels, cf. V. Hadzopoulos, ‘De l’arrêt Foglia-Novello à l’arrêt TWD Textilwerke. La jurisprudence de la Cour de Justice relative à la recevabilité des renvois préjudiciels’, Revue du Marché Unique Européen, 1994, n° 3, pp. 195-219.
140
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg exécutif.43 Par conséquent, la subsidiarité judiciaire y joue un rôle prioritaire. A la différence de la Cour de Luxembourg, celle de Strasbourg n’intervient jamais pendant la procédure nationale, mais toujours après, c’est-à-dire après la défaillance les juridictions nationales.44 Le meilleur résumé des règles de subsidiarité dans la Convention EDH se trouve dans le récent arrêt Kudáa c. Pologne: ‘En vertu de l’article 1er (qui dispose: ‘Les Hautes Parties contractantes reconnaissent à toute personne relevant de leur juridiction les droits et libertés définis au titre I de la présente Convention’), ce sont les autorités nationales qui sont responsables au premier chef de la mise en œuvre et de la sanction des droits et libertés garantis. Le mécanisme de plainte devant la Cour revêt donc un caractère subsidiaire par rapport aux systèmes nationaux de sauvegarde des droits de l’homme. Cette subsidiarité s’exprime dans les articles 13 et 35 § 1 de la Convention.’45 Quel est donc le sens de ces deux dispositions? S’agissant en premier lieu de l’article 35 § 1, il pose comme une condition de recevabilité d’une requête individuelle l’épuisement des voies de recours internes préalablement à la saisine de la Cour. Il s’agit d’un épuisement ‘tel qu’il est entendu selon les principes de droit international généralement reconnus’.46 En deuxième lieu, c’est l’article 13, obligeant l’Etat à introduire et à maintenir, dans son ordre juridique interne, des recours effectifs susceptibles de porter remède aux violations éventuelles de chacun des droits garantis par la Convention et par ses Protocoles: ‘[e]n énonçant de manière explicite 43
Selon l’Etat, ce fonctionnaire peut être rattaché soit au Ministère de la Justice, soit à celui des Affaires étrangères, soit au Parquet général, voire même au cabinet du chef de l’Etat. 44 M. Andriantsimbazovina qualifie cet état de chose d’une ‘subsidiarité brute et brutale’; cf. J. Andriantsimbazovina, op.cit. Cf. également G. Cohen-Jonathan, ‘Responsabilité pour atteinte aux droits de l’homme’, in: La responsabilité dans le système international, Paris, Pédone, 1991, p. 101. 45 Cf. Kudáa c. Pologne [GC], no 30210/96, § 152, CEDH 2000-XI. 46 Ex-article 26 (avant l’entrée en vigueur du Protocole n° 11). Par ailleurs, c’est exactement la disposition au sujet de laquelle la jurisprudence de la Cour utilise expressément le vocable ‘subsidiarité’; cf., par exemple, Handyside c. RoyaumeUni, arrêt du 7 décembre 1976, série A n° 24, p. 22, § 48, Akdivar et autres c. Turquie, arrêt du 16 septembre 1996, Recueil des arrêts et décisions 1996-IV, p. 1210, § 65; Ahmet Sadık c. Grèce, arrêt du 15 novembre 1996, Recueil 1996-V, pp. 1653-1654, § 30; Aksoy c. Turquie, arrêt du 18 décembre 1996, Recueil 1996-VI, pp. 2275-2276, § 51; Bahaddar c. Pays-Bas, arrêt du 19 février 1998, Recueil 1998-I, p. 263, § 45; Selmouni c. France [GC], no 25803/94, § 74, CEDH 1999-V, et Horvat c. Croatie, no 51585/99, § 37, CEDH 2001-VIII. 141
Juris Rudevskis l’obligation pour les Etats de protéger les droits de l’homme en premier lieu au sein de leur propre ordre juridique, l’article 13 établit au profit des justiciables une garantie supplémentaire de jouissance effective des droits en question. (...) [L]’objet de l’article 13 est de fournir un moyen au travers duquel les justiciables puissent obtenir, au niveau national, le redressement des violations de leurs droits garantis par la Convention, avant d’avoir à mettre en œuvre le mécanisme international de plainte devant la Cour.’47 Il est évident que les deux dispositions en cause ne sont que deux faces d’un seul et même principe, d’autant plus que la Cour n’a jamais cessé d’affirmer le lien fonctionnel étroit entre elles.48 Jusqu’ici, nous avons parlé des conditions préalables à la saisine de chacune des deux Cours européennes. Si l’on examine maintenant la manière dont elles perçoivent l’autorité des décisions rendues par les tribunaux étatiques, l’on voit une approche inspirée de la même logique. Les deux juridictions ont toujours affirmé leur volonté de respecter l’autonomie procédurale des juges nationaux dans les domaines de compétence qui leur sont propres, à savoir la détermination des faits de l’espèce, l’interprétation du droit interne et l’appréciation de la conformité du droit national (au sens général du terme) au droit communautaire ou à la Convention EDH. Ainsi, depuis les débuts de sa jurisprudence, la Cour de Justice a maintes fois affirmé que, dans le cadre d’un renvoi préjudiciel, elle doit respecter les constats factuels faits par les juges nationaux.49 Dans l’arrêt Pigs Marketing Board, elle a précisé que ‘le juge national est seul à avoir connaissance directe des faits de l’affaire comme aussi des arguments mis en avant par les parties (...) [il] est mieux placé pour apprécier en pleine connaissance de cause la pertinence des questions de droit soulevées par le litige dont il se trouve saisi’.50
47
Cf. Kudáa c. Pologne, loc.cit., ainsi que Recueil des Travaux préparatoires de la Convention européenne des Droits de l’Homme, Vol. II, pp. 485 et 490, et vol. III, p. 651. 48 ‘La règle de l’article 35 § 1 se fonde sur l’hypothèse, incorporée dans l’article 13 (avec lequel elle présente d’étroites affinités), que l’ordre interne offre un recours effectif quant à la violation alléguée.’ Cf. Kudáa c. Pologne, loc.cit., ainsi que, parmi beaucoup d’autres, l’arrêt Selmouni c. France précité, § 74). 49 Cf. C.J.C.E., arrêt du 9 juillet 1969, Portelange, 10/67, Rec. p. 315. Cf. également arrêts du 5 octobre 1977, Tedeschi, 5/77, Rec. p. 1555, et du 15 novembre 1979, Denkavit, 36/79, Rec. p. 3439. 50 Cf. C.J.C.E., arrêt du 29 novembre 1978, Pigs Marketing Board, 38/78, Rec. p. 2347.
142
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg La jurisprudence de la Cour EDH suit exactement la même voie, et elle est encore plus abondante sur ce point. Tant en matière civile qu’en matière pénale, la position de la Cour est suivante: ‘aux termes de l’article 19 de la Convention, [La Cour] a pour tâche d’assurer le respect des engagements résultant de la Convention pour les Parties contractantes. Spécialement, il ne lui appartient pas de connaître des erreurs de fait ou de droit prétendument commises par une juridiction interne, sauf si et dans la mesure où elles pourraient avoir porté atteinte aux droits et libertés sauvegardés par la Convention’.51 S’agissant en particulier des requêtes formulées par des particuliers sous l’angle du droit à un procès équitable garanti par l’article 6 § 1 de la Convention, cette approche de la Cour s’appelle la doctrine de ‘quatrième instance’. En effet, la quatrième instance, c’est exactement ce que la Cour n’est pas. L’établissement des faits de l’affaire, l’interprétation et l’application du droit interne relèvent en premier lieu de la compétence des tribunaux nationaux, qui sont mieux placées à cet effet qu’un juge international. Par conséquent, en règle générale, la Cour s’en remet aux constats factuels et à l’interprétation du droit interne par le juge national, surtout lorsqu’il s’agit de la plus haute juridiction du pays.52 L’autonomie procédurale décrite ci-dessus ne serait qu’illusoire si le juge national ne disposait pas d’une latitude suffisamment grande quant au choix des moyens pour parvenir à son jugement. Par conséquent, la jurisprudence de la Cour de Strasbourg accorde aux tribunaux internes un pouvoir discrétionnaire non négligeable dans l’administration et l’admissibilité des preuves.53 Ainsi, ‘si la Convention garantit en son article 6 le droit à un procès équitable, elle ne réglemente pas pour autant l’admissibilité des preuves ou leur appréciation, matière qui relève dès lors
51
Cf., parmi maints autres, l’arrêt García Ruiz c. Espagne [GC], no 30544/96, § 28, CEDH 1999-I. Pour un contexte pénal, cf. Schenk c. Suisse, arrêt du 12 juillet 1988, série A n° 140, p. 29, § 45, et Khan c. Royaume-Uni, no 35394/97, § 34, CEDH 2000-V. Il s’agit de l’interprétation non seulement du droit matériel, mais également du droit procédural; à cet égard cf. Tejedor García c. Espagne, arrêt du 16 décembre 1997, Recueil 1997-VIII, p. 2796, § 31. 52 Cf. Pine Valley Developments Ltd et autres c. Irlande, arrêt du 29 novembre 1991, série A no 222, pp. 23-24, § 52 53 Pour une synthèse plus complète, cf. F. Gölcüklü, ‘Le procès équitable et l’admissibilité des preuves dans la jurisprudence de la Cour européenne des Droits de l’Homme’, in: Mélanges offerts à Jacques Velu, Vol. 3, Bruxelles, Bruylant, 1992, p. 1361. 143
Juris Rudevskis au premier chef du droit interne et des juridictions nationales’.54 De même, la Cour EDH est en principe assez favorable aux particularités des systèmes judiciaires nationaux. Par exemple, en appliquant l’article 6 § 1 de la Convention, la Cour a reconnu qu’un Etat contractant n’est pas obligé de créer des cours d’appel ou de cassation; si de telles cours existent, il peut assortir la recevabilité des pourvois d’un plus grand formalisme.55 De même, dans les Etats où il existe des procédures spécifiques d’autorisation d’appel, celles-ci peuvent satisfaire aux exigences de l’article 6, même si l’appelant n’est pas cité devant la juridiction respective.56 Quelle est la tendance générale de la jurisprudence de Luxembourg à cet égard? Elle est la même: comme la Cour EDH, la Cour de Justice respecte elle aussi les particularités des systèmes judiciaires nationaux. L’exemple le plus typique est l’étendue des pouvoirs du juge national: doit-il respecter les dispositions procédurales nationales l’empêchant de soulever d’office un moyen tiré du droit communautaire, si les parties du litige ne l’ont pas invoqué?57 La Cour a donné sa réponse dans les arrêts Peterbroeck et Van Schijndel: en principe, l’expiration du délai contentieux fixé par le droit national ne peut pas empêcher le juge de soulever un tel moyen d’office; toutefois, le juge national est libéré de cette obligation si elle devait ‘le faire renoncer à la passivité qui lui incombe’selon ses règles procédurales.58 Cette jurisprudence a été plusieurs fois vigoureusement critiquée comme portant atteinte à l’effectivité de l’application du droit communautaire; en revanche, selon ses défenseurs, elle traduit un certain esprit de proximité, indispensable 54
Cf. García Ruiz c. Espagne, loc.cit. Cf., par exemple, Levages Prestations Services c. France, arrêt du 23 octobre 1996, Recueil 1996-V, pp. 1544-1545, §§ 45-48, Brualla Gómez de la Torre c. Espagne, arrêt du 19 décembre 1997, Recueil 1997-VIII, p. 2956, § 37, et K.D.B. c. Pays-Bas, arrêt du 27 mars 1998, Recueil 1998-II, p. 630, § 38. 56 Cf. Sutter c. Suisse, arrêt du 22 février 1984, série A n° 74, p. 13, § 30; Monnell et Morris c. Royaume-Uni, arrêt du 2 mars 1987, série A n° 115, p. 22, § 58; Ekbatani c. Suède, arrêt du 26 mai 1988, série A n° 134, p. 14, § 31; Kamasinski c. Autriche, arrêt du 19 décembre 1989, série A n° 168, p. 44, § 106, et Bulut c. Autriche, arrêt du 22 février 1996, Recueil 1996-II, p. 358, § 41. Cf. également E.M. c. Norvège, n° 20087/92, décision de la Commission du 26 octobre 1995, D.R. 83, p. 5, et Näss c. Suède, n° 18066/91, décision de la Commission du 6 avril 1994, D.R. 77, p. 37. 57 La première tentative, très prudente, de répondre à cette question transparaît dans l’arrêt Verholen, cf. C.J.C.E., arrêt du 11 juillet 1991, C-87/90 à 89/90, Rec. p. I3757. 58 Cf. C.J.C.E., arrêts du 14 décembre 1995 Peterbroeck, C-312/93, Rec. p. I-4705, et Van Schijndel, C-430/93 et 431/93, Rec. p. I-4599. 55
144
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg dans un système judiciaire si décentralisé qu’est le système communautaire.59 Pour conclure sur l’aspect actif de la subsidiarité judiciaire, il faut encore mentionner deux éléments de la procédure devant la Cour EDH, qui vont dans la même direction. En premier lieu, il s’agit de l’exécution des arrêts de la Cour. En effet, la Cour peut condamner un Etat pour une violation de la Convention, mais elle ne peut pas surveiller elle-même l’exécution de cet arrêt. Le contrôle d’exécution des arrêts de la Cour EDH incombe au Comité des Ministres du Conseil de l’Europe60; il s’agit donc d’un contrôle purement politique, sans mécanismes d’action juridique. En principe, l’Etat est libre de choisir la voie la plus appropriée pour se conformer avec un arrêt. En deuxième lieu, il faut mentionner l’article 41 de la Convention EDH, habilitant la Cour à accorder une satisfaction équitable en cas de constat d’une violation, si les moyens de réparation accessibles en droit national n’offrent pas de redressement adéquat de cette violation.61 Cependant, c’est surtout dans le domaine de la subsidiarité substantielle que cette disposition est importante; on en parlera donc plus tard.
59 Parmi les commentaires abondants sur les arrêts Peterbroeck et Van Schijndel, cf. notamment S. Prechal, ‘Community Law in National Courts: the Lessons from Van Schijndel’, Common Market Law Review, Vol. 35, no. 3, June 1998, pp. 681-706, J. Andriantsimbazovina, op.cit., et, pour un point de vue opposé, A. Rigaux et D. Simon, note, Europe, février 1996, n° 57 et G. Canivet et J.G. Huglo, ‘L’obligation pour le juge judiciaire d’appliquer d’office le droit communautaire au regard des arrêts Van Schijndel et Peterbroeck’, Europe, avril 1996, Chronique, n° 4. 60 En effet, il s’agit là de la seule fonction laissée au Comité des Ministres après l’entrée en vigueur du Protocole n° 11 à la Convention. Comme il a été dit ci-dessus, avant le 1er novembre 1998, le Comité des Ministres disposait également de la fonction contentieuse, et il pouvait constater l’existence ou l’absence d’une violation de la Convention au lieu de la Cour. A cet égard, cf. N. Chene, ‘La place du Comité des Ministres dans le mécanisme de contrôle de la Convention européenne des droits de l’homme’, thèse, Nice, Université du droit de la paix et du développement, 1992, et F. Gölcüklü, ‘Exécution des décisions des organes de contrôle de la Convention européenne des Droits de l’Homme’, in: Protection des droits de l’homme: la perspective européenne; mélanges à la mémoire de Rolv Ryssdal, loc.cit., pp. 557576. 61 Ex-article 50 (avant l’entrée en vigueur du Protocole n° 11).
145
Juris Rudevskis B. La subsidiarité passive (activisme judiciaire) Comme il a été dit ci-dessus, dans les deux ordres juridiques en question, c’est grâce à la subsidiarité que le juge national est le juge de droit commun du droit communautaire et de la Convention EDH. Toutefois, la subsidiarité est un concept dynamique, et elle permet de dépasser le concept plutôt statique de l’autonomie procédurale nationale. Le pouvoir d’appréciation des juridictions nationales n’est pas illimité, et les deux Cours, celle de Strasbourg et celle de Luxembourg, fixent très souvent des standards communs des droits protégés.62 En réalité, les deux Cours renforcent la fonction du juge national. C’est là l’effet inverse de la subsidiarité: le tribunal interne est certes le juge du droit commun du droit communautaire et de la Convention, mais, s’il en est ainsi, il faut alors le doter de capacités nécessaires pour appliquer ces dispositions d’une manière efficace. Nous ne ferons pas ici un exposé complet des pouvoirs dont la Cour de Justice a doté les juges nationaux en leur qualité de juge communautaire, cette question nécessitant une étude séparée (et très volumineuse).63 Par conséquent, on se limitera à présenter un inventaire très concis de cet acquis jurisprudentiel, fondé sur les notions de primauté et d’effet direct du droit communautaire. A cet égard, il faut tout d’abord citer le célèbre arrêt Simmenthal, enjoignant au juge national de laisser de côté les dispositions du droit interne incompatibles avec le droit communautaire: ‘tout juge national, saisi dans le cadre de sa compétence, a l’obligation d’appliquer intégralement le droit communautaire et de protéger les droits que celui-ci confère aux particuliers, en laissant inappliquée toute disposition éventuellement contraire de la loi nationale’.64 De même, comme on l’a déjà vu ci-dessus, la Cour de Justice a reconnu au juge national le pouvoir de soulever d’office un moyen tiré du droit communautaire.65 Dans les situations où le juge a des doutes quant au sens à donner au droit national, la Cour l’a contraint à
62
Cf. J. Andriantsimbazovina, op.cit. Cf. A. Barav, op.cit., ainsi que F. Grevisse et J.-C. Bonichot, ‘Les incidences du droit communautaire sur l’organisation et l’exercice de la fonction juridictionnelle dans les Etats membres’, in: L’Europe et le Droit. Mélanges en hommage à Jean Boulouis, Paris, Dalloz, 1991, p. 297. 64 Cf. C.J.C.E., arrêt du 9 mars 1978, Simmenthal, 106/77, Rec. p. 629. 65 Avec, toutefois, une réserve respectant l’obligation de passivité est expressément imposée au juge; à ce sujet, cf. supra, au sujet des arrêts Peterbroeck et Van Schijndel. 63
146
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg recourir à l’interprétation conforme de celui-ci.66 Lorsqu’un litige a pour objet des droits subjectifs tirés du droit communautaire, le juge du fond doit disposer de la plénitude de juridiction et ne doit pas être lié par les constats de l’administration.67 Si, en dépit de toutes les précautions, un acte interne contraire au droit communautaire a été appliqué au détriment d’un particulier et si des sommes ont été indûment perçues en application de cet acte, la Cour a autorisé les juridictions nationales à enjoindre aux autorités étatiques respectives d’ordonner la répétition de l’indu68; le cas échéant, elles doivent également ordonner une réparation à la partie lésée.69 Et, en cas d’absence de base légale en droit interne, le juge doit la trouver directement dans le droit communautaire. Ensuite, il faut citer la jurisprudence encore plus avancée: dans l’arrêt Factortame, la Cour de Justice a reconnu au juge national le droit d’ordonner des mesures provisoires, même en suspendant l’application d’une loi; elle a encore une fois précisé que, si le droit national ne fournissait pas la base juridique nécessaire à ce effet, le juge national devait se fonder sur le droit communautaire lui-même.70 Enfin, suivant partiellement la 66
Cf. C.J.C.E., arrêt du 4 février 1988, Murphy, 157/86, Rec. p. 673, et arrêt du 10 avril 1984, Von Colson et Kamann, 14/83 et 79/83, Rec. p. 1891. 67 Cf. l’arrêt du 15 mai 1986, Johnston, 222/84, Rec. p. 1676. 68 L’arrêt fondateur sur ce point est l’arrêt du 26 juin 1979, Pigs and Bacon Commission, 177/78, Rec. p. 2171. Pour l’évolution de la jurisprudence sur la répétition de l’indu, cf. arrêts du 16 décembre 1976, Rewe, 33/76, Rec. p. 1979; et Comet, 45/76, Rec. p. 2043, puis arrêt du 27 février 1980, Hans Just, 68/79, Rec. p. 501; l’arrêt du 27 mars 1980, Denkavit Italiana, 61/79, Rec. p. 1205; arrêt du 9 novembre 1983, San Giorgio, 199/82, Rec. p. 3595; arrêt du 29 juin 1988, Deville, 240/87, Rec. p. 3513; arrêt du 25 juillet 1991, Emmott, Aff. C 208/90, Rec. p. I4269; arrêt du 2 décembre 1997, Fantask et autres, C-188/95, Rec. p. I-6783; arrêt du 15 septembre 1998, Ansaldo Energia, C-279/96 à C-281/96, Rec. p. I-5025 et, enfin, arrêt du 22 octobre 1998, IN.CO.GE.90, C-10/97 à C-22/97, Rec. p. I-6307. Pour la doctrine, cf. A. Barav, ‘La répétition de l’indu dans la jurisprudence de la Cour de justice des Communautés européennes’, Cahiers de droit européen, 1981 n° 5-6, p. 507, et F. Belaich, ‘La répétition de l’indu en droit communautaire dans la jurisprudence de la Cour de justice des Communautés européennes’, Revue du Marché commun et de l’Union européenne, 2000, n° 435, p. 100. 69 Cf. arrêt du 19 novembre 1991, Francovich et Bonifaci, C-6/90, Rec. p. I-5357, et, pour une bonne synthèse doctrinale, G. Anagnostaras, ‘The principle of state liability for judicial breaches: the impact of European Community law’, European Public Law, 2001, Vol. 7, issue 2, pp. 281-305. 70 Cf. C.J.C.E., arrêt du 19 juin 1990, Factortame, C-213/89, Rec. p. I-2433. Sur l’évolution de cette jurisprudence, cf. R. Mehdi, ‘Le droit communautaire et les 147
Juris Rudevskis doctrine allemande du droit administratif, la Cour a autorisé le juge national à reconnaître la responsabilité directe de l’Etat envers le particulier même du fait d’une loi ou d’un autre acte normatif, lorsque celui-ci s’avère incompatible avec le droit communautaire.71 En résumé, comme le conclut, à juste titre, M. Andriantsimbazovina, l’encadrement initial, par la Cour de Justice, de l’office du juge national contribue à terme à son renforcement.72 Tournons maintenant vers la Cour de Strasbourg. A première vue, la situation y devrait être différente, puisque le principe de primauté, tel qu’il est reconnu en droit communautaire, n’existe pas sous cette forme dans le système de la Convention. Mais, lorsqu’on examine de près la jurisprudence de la Cour, on découvre que le résultat est essentiellement le même: un renforcement constant des pouvoirs du juge national afin qu’il puisse appliquer la Convention le plus efficacement possible.73 Ainsi, au fil des années, la jurisprudence de la Cour a considérablement renforcé le droit des particuliers à l’accès aux tribunaux afin de faire valoir leurs droits: ‘l’effectivité du droit en question demande qu’un individu jouisse d’une possibilité claire et concrète de contester un acte portant atteinte à ses droits’.74 Ensuite, de même que la Cour de Luxembourg, celle de Strasbourg consacre la plénitude de juridiction: dans l’affaire Beaumartin c. France, concernant la question de savoir si un juge peut se considérer lié par des conclusions de l’administration, elle dit avec vigueur que ‘seul mérite l’appellation de ‘tribunal’ au sens de l’article 6 § 1 un organe jouissant de pouvoirs du juge national d’urgence’, Revue trimestrielle de droit européen, 1996, p. 77; F. Picod. ‘Les mesures provisoires ordonnées par la juridiction communautaire’, Journal des Tribunaux: droit européen, 1995, Vol. 3, no. 20,p. 121-129, et F. Richerme-Bally. ‘Les mesures provisoires ou conservatoires selon la Cour de justice des communautés européennes’, in: Juris-Classeur – Procédures vol. 5, no 10, Paris, Juris-Classeur, 1999, nos 1260-3902, pp. 6-9. 71 Sur la responsabilité du fait de l’activité normative de l’Etat, cf. F. Fines, ‘Quelle obligation de réparer pour la violation du droit communautaire? Nouveaux développements jurisprudentiels sur la responsabilité de l’Etat normateur’, Revue trimestrielle de droit européen, 1997, p. 69. 72 Cf. J. Andriantsimbazovina, op.cit. 73 Pour une étude très intéressante sur ce point, cf. O. Jacot-Guillarmod. ‘Autonomie procédurale des Etats (articles 6, 13, 35 et 46 CEDH): de l’apport possible de la jurisprudence de Luxembourg à celle de Strasbourg’, in: Protection des droits de l’homme: la perspective européenne; mélanges à la mémoire de Rolv Ryssdal, loc.cit., pp. 617-633. 74 Cf., parmi beaucoup d’autres, Bellet c. France, arrêt du 4 décembre 1995, série A no 333-B, p. 42, § 36, et les deux arrêts Cordova c. Italie: n° 1, no 40877/98, § 52, et n° 2, no 45649/99, § 53, tous les deux à paraître dans CEDH 2003-…
148
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg la plénitude de juridiction’.75 Parfois, cette plénitude peut signifier l’obligation d’autoriser les justiciables à intenter une action indemnitaire même si les dispositions matérielles ou procédurales nationales ne connaissent pas un tel recours.76 Lorsque le juge national accomplit sa fonction, le principe d’effectivité des droits exige qu’il motive ses décisions.77 Puis, bien qu’aucune disposition de la Convention ne parle expressis verbis de l’exécution des décisions de justice, la Cour EDH a déduit de la notion générale de ‘droit équitable’ (ou, plus précisément, de celle de ‘droit à un tribunal’) l’obligation, pour l’Etat, d’assurer une exécution rapide et efficace des jugements rendus au niveau interne au profit d’un justiciable.78 Enfin, dans l’arrêt Kudla c. Pologne précité, la Cour a 75
Cf. Beaumartin c. France, arrêt du 24 novembre 1994, série A no 296-B, p. 63, § 38, et, pour un cas similaire, l’arrêt Chevrol c. France, no 49636/99, à paraître dans CEDH 2003-…. Il s’agit en l’occurrence de la pratique du renvoi préjudiciel suivie par le Conseil d’Etat français, obligeant le juge administratif à demander au ministre des Affaires étrangères d’indiquer l’existence de la réciprocité dans chaque cas d’espèce et d’en tirer les conséquences. L’approche de la Cour EDH est donc exactement la même que celle de la Cour de Justice dans l’affaire Johnston (cf. supra). Sur ce point, cf. également M. Melchior, ‘La notion de compétence de pleine juridiction en matière civile dans la jurisprudence de la Cour européenne des Droits de l’Homme’, in: Mélanges offerts à Jacques Velu, Vol. 3, Bruxelles, Bruylant, 1992, p. 1327. 76 Cf. arrêt Bellet c. France précité, § 37. A ce sujet, cf. P. Frumer, ‘La réparation des atteintes aux droits de l’homme internationalement protégés’, Revue trimestrielle des Droits de l’Homme, 1996, n° 27, p. 329. 77 Tout en affirmant l’obligation de motivation des décisions en tant que principe, la Cour a néanmoins admis une application relativement souple, en précisant que cette obligation n’implique pas une réponse détaillée à chaque argument avancé par les parties. Cf. Van de Hurk c. Pays-Bas, arrêt du 19 avril 1994, série A n° 288, p. 20, § 61; Ruiz Torija c. Espagne et Hiro Balani c. Espagne, arrêts du 9 décembre 1994, série A nos 303-A et 303-B, p. 12, § 29, et pp. 29-30, § 27; Helle c. Finlande, arrêt du 19 décembre 1997, Recueil 1997-VIII, p. 2930, §§ 59-60; Higgins et autres c. France, arrêt du 19 février 1998, Recueil 1998-I, p. 60, § 42, et l’arrêt García Ruiz c. Espagne précité, § 26. Par exemple, en rejetant un recours, une cour d’appel peut se borner à faire siens les motifs de la décision entreprise. 78 ‘L’exécution d’un jugement ou arrêt, de quelque juridiction que ce soit, fait partie intégrante du ‘procès’ au sens de l’article 6’. Cf. Hornsby c. Grèce, arrêt du 19 mars 1997, Recueil 1997-II, p. 510, § 40, Immobiliare Saffi c. Italie [GC], n° 22774/93, § 63, CEDH 1999-V, et Bourdov c. Russie, n° 59498/00, § 34, CEDH 2002-III. 149
Juris Rudevskis opéré un revirement très spectaculaire de sa jurisprudence79 en renforçant les garanties de l’article 6 § 1 en matière de ‘délai raisonnable’ et en déduisant de l’article 13 de la Convention une obligation, pour l’Etat, de prévoir des recours permettant de surveiller les délais procéduraux; en d’autres termes, il peut s’agir de recours secondaires permettant de surveiller l’efficacité d’un recours de base.80 Parfois, lorsque ceci est vraiment indispensable, la Cour EDH agit avec la même audace que son homologue de Luxembourg, n’hésitant pas à mettre en cause certaines institutions nationales, par exemple, le rôle du ministère public dans la procédure interne81, ou bien le rôle consultatif et contentieux
79
La jurisprudence antérieure consistait à affirmer, dans tous les cas, que l’article 6 § 1 (dont les exigences sont plus strictes que celles de l’article 13) est une lex specialis par rapport à ce dernier. Par conséquent, lorsque le litige en question entrait dans le champ d’application de l’article 6 § 1, il ne s’imposait pas de statuer séparément sur l’observation de l’article 13. Pour ne donner que quelques exemples typiques, cf., en matière civile, Brualla Gómez de la Torre c. Espagne, arrêt du 19 décembre 1997, Recueil 1997-VIII, p. 2957, § 41, et, en matière pénale, Kamasinski c. Autriche, arrêt du 19 décembre 1989, série A no 168, pp. 45-46, § 110. Cette approche était suivie même lorsque l’intéressé se plaignait justement de l’absence des voies de recours permettant de faire respecter l’exigence du ‘délai raisonnable’, au sens de l’article 6 § 1 de la Convention; cf., par exemple, Pizzetti c. Italie, arrêt du 26 février 1993, série A no 257-C, p. 37, § 21, Bouilly c. France, no 38952/97, § 27, arrêt du 7 décembre 1999, et Giuseppe Tripodi c. Italie, no 40946/98, § 15, arrêt du 25 janvier 2000, non publiés. 80 Cf. l’arrêt Kudáa c. Pologne précité, §§ 146-156. Bien que responsabilisant davantage les juges nationaux et leur transférant la charge principale de surveiller les délais procéduraux, cet arrêt n’a pas été à l’abri des critiques. Il lui fut notamment reproché d’alourdir la procédure devant les juges nationaux et même de freiner celle-ci. Sur ce point, cf. J. Andriantsimbazovina, ‘Délai raisonnable du procès, recours effectif ou déni de justice?: De l’arrêt Kudáa, de la Cour européenne des droits de l’homme, à l’arrêt Magiera, du Conseil d’Etat. Le trésor et la perle ou le filet?’, Revue française de droit administratif, 2003, no 1, pp. 85-98, ainsi que J.-F. Flauss, ‘Observations: Le droit à un recours effectif au secours de la règle du délai raisonnable: un revirement de jurisprudence historique.’, Revue trimestrielle des Droits de l’Homme, 2002, n° 49 pp. 169-201. 81 Cf. Delcourt c. Belgique, arrêt du 17 janvier 1970, série A n° 11, pp. 17-19, §§ 3238; Borgers c. Belgique, arrêt du 30 octobre 1991, série A n° 214-B, pp. 31-32, §§ 24-28; Lobo Machado c. Portugal et Vermeulen c. Belgique, arrêts du 20 février 1996, Recueil 1996-I, p. 207, § 32 et p. 234, § 34, respectivement; Van Orshoven c. Belgique, arrêt du 25 juin 1997, Recueil des arrêts et décisions 1997-III, p. 1049, § 33, et Kress c. France, [GC], no 39594/98, §§ 77-79, CEDH 2001-VI
150
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg du Conseil d’Etat dans un pays dont le système judiciaire s’apparentait à l’origine au système français.82 En résumé, la Cour de Strasbourg oblige le juge national à surmonter les obstacles érigés par son droit institutionnel et procédural existant.83 Suivant la formule de M. Flauss, elle contribue alors à ‘l’érosion de l’autonomie procédurale des Etats’84, et, ce faisant, elle ne se distingue pas beaucoup de la Cour de Justice. Mais que faire si, malgré les efforts décrits ci-dessus, les juridictions nationales s’avèrent incapables d’appliquer correctement le droit communautaire ou la Convention EDH? Logiquement, dans un tel cas, les deux Cours devraient se substituer aux tribunaux internes; et c’est effectivement ainsi. La Cour de Justice se substitue-t-elle directement aux tribunaux nationaux? Vu la spécificité des recours devant cette juridiction, on est d’abord tenté de répondre par la négative. Toutefois, n’y a-t-il pas une telle substitution lorsque la Cour, saisie d’un renvoi préjudiciel conformément à l’article 234 du Traité CE, évalue la pertinence et la motivation des questions posées (comme on l’a vu ci-dessus)? Il faut reconnaître qu’elle empiète directement sur la compétence du juge de renvoi, qui devrait, en théorie, rester le seul à décider s’il y a lieu de poser une question concrète à la Cour.85 82
Il s’agit de l’exercice consécutif de fonctions consultatives et de fonctions juridictionnelles au sein d’une même institution; ceci peut, dans certains cas, soulever une question sur le terrain de l’article 6 § 1 relativement à l’impartialité de l’organe en cause. Cf. Procola c. Luxembourg, arrêt du 28 septembre 1995, série A no 326, pp. 15-16, §§ 41-46, et, en ce qui concerne le Bailiff de Guernesey, l’arrêt McGonnell c. Royaume-Uni, no 28488/95, §§ 48-58, CEDH 2000-II. Pour une conclusion opposée quant au Conseil d’Etat néerlandais, cf. Kleyn et autres c. PaysBas [GC], nos 39343/98, 39651/98, 43147/98 et 46664/99, n° 190-202, à paraître dans CEDH 2003-… 83 Cf. R. Abraham, ‘Le juge administratif français et la Cour de Strasbourg’, in: Quelle Europe pour les Droits de l’Homme? La Cour de Strasbourg et la réalisation d’une ‘union plus étroite’, dir. P. Tavernier, Bruxelles, Bruylant, 1996, p. 235. 84 Cf. J.-F. Flauss, ‘Les nouvelles frontières du procès équitable’, in: Les nouveaux développements du procès équitable au sens de la Convention européenne des Droits de l’Homme, Cour de Cassation, Université Robert Schumann de Strasbourg, Bruxelles, Bryulant, p. 81. 85 Cf. J. Andriantsimbazovina, ‘La subsidiarité devant la Cour de Justice des Communautés européennes et la Cour européenne des Droits de l’Homme’, op.cit. 151
Juris Rudevskis Dans le système de la Convention EDH, cette substitution est encore plus visible. En premier lieu, la Cour admet une interprétation souple de la règle de l’épuisement des voies de recours internes: lorsque ceux-ci s’avèrent inefficaces, elle reconnaît au requérant le droit de venir directement devant elle; encore faut-il que l’inefficacité d’un recours donné soit suffisamment démontrée pour que l’intervention prématurée de la Cour soit légitimée.86 Une telle approche se fonde sur le principe d’effectivité sous-tendant tout le système de la Convention: toutes les dispositions de celle-ci doivent être interprétées et appliquées de sorte que les droits y garantis soient réels et effectifs, et non théoriques et illusoires.87 En deuxième lieu, parfois la Cour peut ‘s’ériger en quatrième degré de juridiction’88 et d’établir elle-même les faits d’une affaire portée devant elle. Comme dans le cas de l’épuisement, il s’agit là d’une hypothèse exceptionnelle, lorsque les versions des faits présentées par les parties divergent à un tel point qu’il est impossible d’établir la vérité. Un tel cas de figure se présente notamment dans les requêtes alléguant une violation de l’article 2 (droit à la vie) ou de l’article 3 (interdiction de mauvais traitements) de la Convention.89
86
Il est impossible de donner ici une liste complète d’arrêts dans lesquels la Cour s’est prononcée dans cette direction, tellement ils sont nombreux. Pour ne citer que quelques-uns, relatifs à la situation dans le Sud-Est de la Turquie: cf. Akdivar et autres c. Turquie, arrêt du 16 septembre 1996, Recueil 1996-IV, pp. 1210-1211, §§ 65-69; Aksoy c. Turquie, arrêt du 18 décembre 1996, Recueil 1996-VI, p. 22752276, §§ 51-54; Tanrıkulu c. Turquie [GC], n° 23763/94, § 76, CEDH 1999-IV; Salman c. Turquie [GC], n° 21986/93, § 81, CEDH 2000-VII, et ølhan c. Turquie [GC], n° 22277/93, § 58, CEDH 2000-VII. 87 Sur le principe d’effectivité, cf., par exemple, Artico c. Italie, arrêt du 13 mai 1980, série A no 37, p. 16, § 33; Soering c. Royaume-Uni, arrêt du 7 juillet 1989, série A no 161, p. 34, § 87, et Matthews c. Royaume-Uni [GC], no 24833/94, § 34, CEDH 1999-I: ‘La Convention vise à garantir des droits non pas théoriques ou illusoires, mais concrets et effectifs’. Pour un exemple très spectaculaire de l’intervention prématurée de la Cour, cf. arrêt du 28 novembre 2002 Lavents c. Lettonie, no 58442/00, § 57, non publié. 88 Selon la formule utilisée par M. Andriantsimbazovina (cf. J. Andriantsimbazovina, op.cit.). 89 Cf., parmi bcp d’autres, Vilvarajah et autres c. Royaume-Uni, arrêt du 30 octobre 1991, série A n° 215, p. 36, § 107, et Dikme c. Turquie, no 20869/92, § 73, CEDH 2000-VIII. A cet égard, il faut noter les dernières modifications du règlement de la Cour, entrées en vigueur le 1er novembre 2003 et ajoutant au règlement un annexe concernant les enquêtes. Le but de ces modifications est justement de donner une
152
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg Enfin, il faut mentionner un élément jurisprudentiel très important existant dans le système de la Convention EDH, à savoir les mesures provisoires. Fort malheureusement, le Protocole no 11 n’a pas introduit dans le texte de la Convention le pouvoir de la Cour EDH d’ordonner des mesures provisoires (telles qu’elles existent dans l’article 243 du Traité CE90). Ces mesures ne sont prévus que par l’article 39 du règlement de la Cour91, qui n’est pas une disposition conventionnelle et qui ne lie pas les Etats contractants au même titre que la Convention.92 Par conséquent, une approche rigoriste peut nous mener à la conclusion qu’au sens strict du terme, les mesures provisoires indiquées par la Cour ne ‘lient’ pas l’Etat concerné. Et, effectivement, la jurisprudence classique, représentée par l’arrêt Cruz Varas et autres c. Suède, allait dans cette direction: après avoir reconnu que les mesures provisoires étaient dépourvues d’une base légale dans la Convention, la Cour déclara que, dans une affaire d’expulsion ou d’extradition, une mesure provisoire ne servait qu’’ à signaler à un Etat contractant [que] (...) le requérant pourra subir un dommage irréversible si on l’expulse (...). Si l’Etat décide de ne pas se conformer à l’indication reçue de la sorte, il assume sciemment le risque de voir les organes de la Convention le déclarer coupable d’infraction à l’article 3. Dans le cas d’un Etat rendu ainsi attentif aux dangers qu’il y a à préjuger de l’issue du litige en instance devant la Commission, on doit selon la Cour considérer le refus de suivre l’indication en cause comme aggravant tout manquement (...)
base légale renforcée aux mesures dont la Cour se sert pour établir elle-même les faits d’une affaire. 90 Ex-article 186: ‘Dans les affaires dont elle est saisie, la Cour de justice peut prescrire les mesures provisoires nécessaires’. 91 L’article 39 du règlement stipule, en son paragraphe 1er: ‘La chambre ou, le cas échéant, son président peuvent, soit à la demande d’une partie ou de toute autre personne intéressée, soit d’office, indiquer aux parties toute mesure provisoire qu’ils estiment devoir être adoptée dans l’intérêt des parties ou du bon déroulement de la procédure.’ Avant l’entrée en vigueur du Protocole n° 11, il s’agissait de l’article 36 du règlement intérieur de la Commission EDH, ainsi libellé: ‘La Commission ou, si elle ne siège pas, le Président peut indiquer aux parties toute mesure provisoire dont l’adoption paraît souhaitable dans l’intérêt des parties ou du déroulement normal de la procédure.’ 92 Cf. notamment A. Spielmann. ‘La Cour unique et permanente et les mesures provisoires: la nécessité d’une réforme’, in: Protection des droits de l’homme: la perspective européenne; mélanges à la mémoire de Rolv Ryssdal, loc.cit., p. 13471358. 153
Juris Rudevskis ultérieurement constaté (...)’.93 Il s’agissait donc plutôt d’une mesure de mise en garde du gouvernement défendeur. En revanche, dans son arrêt très récent rendu dans l’affaire Mamatkulov et Abdurasulovic c. Turquie, la Cour a considérablement durci son approche, en déclarant fermement que ‘tout Etat Partie à la Convention saisi d’une demande de mesures provisoires indiquées en vue d’éviter qu’un préjudice irréparable ne soit causé à la victime de la violation alléguée doit respecter ces mesures et s’abstenir de tout acte ou omission qui porterait préjudice à l’intégrité et à l’effectivité de l’arrêt final’94, au risque de se voir condamné pour une entrave au libre exercice du droit de pétition individuelle, entrave prohibée par la dernière phrase de l’article 34 de la Convention. Cette nouvelle jurisprudence reflète très bien la préoccupation croissante de la Cour devant la passivité de certains gouvernements dans l’accomplissement des obligations leur incombant en vertu du traité. En résumé, on voit bien que la perception de la subsidiarité judiciaire par les deux Cours européennes très similaire, voire essentiellement la même. Qu’en est-il de la subsidiarité substantielle? Chapitre II. La subsidiarité substantielle (matérielle) A. La subsidiarité active (retenue judiciaire) Comme on l’a vu ci-dessus, dans l’ordre juridique communautaire, la subsidiarité est expressément mentionnée à l’article 5 du Traité CE. 93
Cf. Cruz Varas et autres c. Suède, arrêt du 20 mars 1991, série A no 201, pp. 3637, §§ 102-103. On peut également le formuler d’une façon suivante: l’Etat n’est pas vraiment ‘tenu’ d’observer une mesure provisoire indiquée par la Cour EDH; toutefois, s’il n’y obéit pas, il risque d’être condamné plus gravement. Cf. D. Spielmann, ‘Les mesures provisoires et les organes de protection prévus par la Convention européenne des droits de l’homme’, in: Mélanges offerts à Jacques Velu, Vol. 2, Bruxelles, Bruylant, 1992, pp. 1293-1317; G. Cohen-Jonathan, ‘De l’effet juridique des ‘mesures provisoires’ dans certaines circonstances et de l’efficacité du droit de recours individuel: à propos de l’arrêt Cruz Varas de la Cour européenne des Droits de l’Homme’, Revue universelle des droits de l’homme, 1991, Vol. 3, no 6, pp. 205-209; E. Garcia de Enterria, ‘De la légitimité des mesures provisoires prises par la Commission et la Cour européennes des droits de l’homme: l’affaire Cruz Varas’, Revue trimestrielle des droits de l’homme, 1992, no 11, pp. 251-280. Cf. également J. Callewaert, ‘La Cour européenne des Droits de l’Homme et l’urgence’, Revue trimestrielle des droits de l’homme, 1994, no 19, pp. 391-403 94 Cf. Mamatkulov et Abdurasulovic c. Turquie, nos 46827/99 et 46951/99, §§ 110111, à paraître dans CEDH 2003-…
154
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg Toutefois, paradoxalement, la formule utilisée par le traité est relativement obscure, et certains auteurs la définissent comme une ‘ligne de conduite assez vague exprimant davantage une orientation politique qu’une limite juridique’95. L’article 5 est généralement interprété comme une présomption des compétences étatiques, toutefois, il n’y a aucun mécanisme susceptible d’assurer l’unilatéralité du mouvement; par conséquent, cette présomption peut à tout moment être reversée au profit de la Communauté.96 On parle donc de la ‘versatilité’97 ou de la ‘réversibilité’98 de la subsidiarité substantielle en droit communautaire. Bien que le terme de ‘subsidiarité’ n’apparaît pas dans la Convention EDH, la Cour de Strasbourg a toujours souligné le caractère subsidiaire de son appréciation par rapport à celle des juridictions nationales. Ainsi, elle a admis qu’elle ne saurait ignorer les données spécifiques de fait et de droit caractérisant un Etat déterminé, et que les juges nationaux, ‘placés directement en contact avec les forces vitales de leur pays’, sont mieux à même d’apprécier les nécessités et les particularités de la société respective.99 Cette formule paraît assurer plus de cohérence dans l’application du principe de subsidiarité que cette utilisée dans l’article 5 du Traité CE. Quoi qu’il en soit, dans les deux systèmes, le concept de la subsidiarité substantielle est politique plutôt que juridique. De même, on peut dire que la subsidiarité n’est pas un frein à l’intégration et à l’harmonisation, mais plutôt un facteur de proximité de l’autorité décisionnelle par rapport à l’individu.100 Et on verra qu’à Strasbourg et à Luxembourg, la subsidiarité substantielle
95
Cf. D. Simon, ‘Article 3B’, in: Traité sur l’Union européenne, commentaire article par article, éd. V. Constantinesco, R. Kovar et D. Simon, Paris, Economica, 1995, p. 61-67. 96 Cf. V. Constantinesco, ‘Article 3B’, loc.cit., p. 106-118, ainsi que G. Vandersanden, ‘Considérations sur le principe de subsidiarité’, in: Mélanges offerts à Jacques Velu, Vol. 1, Bruxelles, Bruylant, 1992, pp. 193-210. 97 Cf. V. Constantinesco, op. cit. 98 Cf. J. Andriantsimbazovina, op.cit. 99 Cf., par exemple, Buckley c. Royaume-Uni, arrêt du 25 septembre 1996, Recueil 1996-IV, § 75, Chapman c. Royaume-Uni [GC], n° 27238/95, § 91, CEDH 2001-I, et Fretté c. France, no 36515/97, § 41, CEDH 2002-I 100 Cf. J. Andriantsimbazovina, op.cit. 155
Juris Rudevskis influence l’interprétation des textes respectifs d’une manière tout à fait semblable.101 S’agissant tout d’abord de la Cour de Justice, on peut distinguer deux périodes. Avant 1990, la Cour avait activement recouru à la théorie des ‘compétences implicites’, en reconnaissant un ‘prolongement’ automatique des compétences internes de la Communauté aux compétences externes.102 Cette approche apparaît dans les célèbres arrêts A.E.T.R. et Kramer, dans lesquels la Cour a déclaré que, malgré l’absence de compétence expressément inscrite dans le Traité pour conclure des traités internationaux dans certains domaines, la compétence ‘externe’ de Communauté pouvait néanmoins être déduite de sa compétence ‘interne’. 103 Cette jurisprudence a été, à juste titre, fortement critiquée pour avoir sapé les limites des compétences communautaires. En revanche, depuis le début des années 1990, la jurisprudence de la Cour a subi une certaine inflexion influencée par l’esprit de subsidiarité et tendant à limiter l’expansion unilatérale des compétences de la Communauté. Dans son avis rendu dans l’affaire GATS/TRIPS, la Cour a déclaré que ‘ce n’est que dans la mesure où les règles communes ont été établies sur le plan interne que la compétence de la Communauté devient exclusive’.104 La Cour a donc très clairement opté pour la retenue, allant dans une direction favorable aux Etats membres désireux de préserver leurs compétences.105 La même conclusion s’impose dans le domaine des mesures d’effet équivalant à des restrictions quantitatives aux échanges, au sens de l’article 28 du Traité CE.106 A l’origine, dans son célèbre arrêt Dassonville, la Cour 101
Cf. Thomas A. Finlay. ‘Judicial self-restraint’, in: Protection des droits de l’homme: la perspective européenne, mélanges à la mémoire de Rolv Ryssdal, loc.cit., 499-505. 102 Pour une étude très approfondie sur ce point, cf. V. Michel, ‘Recherches sur les compétences de la Communauté’, Paris, l’Harmattan, 2003, notamment pp. 113 et s. 103 Cf. C.J.C.E., arrêt du 31 mars 1971, Commission c. Conseil (affaire A.E.T.R.), 22/71, Rec. p. 263, et arrêt du 14 juillet 1976, Kramer, 3-4/76 et 6/76, Rec. p. 1279. Cf. également avis du 26 avril 1977, Fonds d’immobilisation de la navigation intérieure, 1/76, Rec. p. 741. 104 Cf. C.J.C.E., avis du 15 novembre 1994, Compétence de la Communauté pour conclure des accords internationaux en matière de services et de protection de la propriété intellectuelle, 1/94, Rec. p. I-5267. 105 Cf. les commentaires sur l’avis 1/94: celui de D. Simon, Europe, décembre 1994, pp. 1-3, et de J. Auvret-Finck, Revue trimestrielle de droit européen, 1995, p. 322336. Cf. également V. Constantinesco, ‘Subsidiarité… vous avez dit subsidiarité?’, Revue du marché unique européen, 1992, n° 4, p. 227. 106 Ex-article 30.
156
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg de Justice a affirmé que toute réglementation commerciale susceptible d’entraver directement ou indirectement, actuellement ou potentiellement le commerce intra-communautaire était à considérer comme une ‘mesure d’effet équivalent’.107 Toutefois, en 1993, l’interprétation de la disposition en cause fut fortement redéfinie par l’arrêt Keck et Mithouard, selon laquelle certaines modalités de vente pouvaient ne pas relever de l’article 28, pourvu qu’elles s’appliquaient à tous les opérateurs concernés et qu’elles affectaient de la même manière, en droit comme en fait, la commercialisation des produits nationaux et de ceux en provenance d’autres Etats membres.108 On voit dans cette jurisprudence une nette autolimitation de la Cour, prêté à reconnaître aux Etats une marge de manœuvre élargie dans la prise de décisions de nature essentiellement politique.109 Selon l’un des nombreux auteurs ayant analysé l’arrêt Keck et Mithouard, la Cour a ‘donné une interprétation concrète du principe de subsidiarité dans le sens de la préservation des compétences des Etats membres’.110 Toutefois, il faut préciser que cette tendance à l’interprétation restrictive des compétences communautaires, qui subsiste aujourd’hui et qui, en principe, ne peut être que félicitée, connaît aussi ses limites. Un exemple frappant de son application rigide et inconsidérée par la Cour de Justice est l’avis 2/94 sur la possibilité d’adhésion de la Communauté à la Convention
107
Cf. C.J.C.E., arrêt du 11 juillet 1974, Dassonville, 8/74, Rec. p. 837, ainsi que arrêt du 20 février 1979, Rewe-Zentral (‘Cassis de Dijon’), 120/78, Rec. p. 649. 108 Cf. C.J.C.E., arrêt du 24 novembre 1993, Keck et Mithouard, C-267/91 et C268/91, Rec. p. I-6097. 109 Cf., parmi beaucoup d’autres, R. Joliet, ‘La libre circulation des marchandises: l’arrêt Keck et Mithouard et les nouvelles orientations de la jurisprudence’, Journal des tribunaux: droit européen, 1994, no12, p.145-151; D. Waelbroeck. ‘L’arrêt Keck et Mithouard: les conséquences pratiques’, loc.cit., 1994, no13, p.161-166; L. Gyselen. ‘Mesures étatiques restrictives de concurrence: des enseignements à tirer de l’arrêt Keck et Mithouard?’ loc.cit., 1994, no13, p.170-174; R. Wainwright. ‘Bilan de l’article 30 après vingt ans de jurisprudence: de Dassonville à Keck et Mithouard’, Revue du Marché commun et de l’Union européenne, 1994, no381, p.533-539, et M. Lopez Escudero. ‘La jurisprudencia Keck y Mithouard: una revisión del concepto de medida de efecto equivalente’, Revista de instituciones europeas, 1994, Vol.21, no.2, p.379-417. 110 Cf. H. Calvet, ‘La Cour de Justice des Communautés: subsidiarité et réalisme’, L’Année européenne, 1995, pp. 130-133. 157
Juris Rudevskis EDH.111 Cet avis refuse de reconnaître à la Communauté toute compétence en matière des droits fondamentaux et, par conséquent, la déclare incapable à signer la Convention. Certes, cet avis suit une lecture très restrictive et littérale du Traité et respecte très rigoureusement le principe des compétences d’attribution112; cependant, à notre avis, il est fondamentalement erroné et procède d’une fausse conception de la nature des Droits de l’Homme, présents à la base de tous les domaines du droit. En effet, il paraît qu’une application si restrictive du principe d’attribution de compétences (consacré par le premier alinéa de l’article 5 du Traité) n’est possible qu’en liaison avec la nécessité de respecter la subsidiarité (le deuxième alinéa), ce qui, évidemment, n’est pas le cas en l’espèce.113 Des tendances semblables d’autolimitation guident également la Cour de Strasbourg. Ainsi, la Cour EDH a toujours reconnu avec beaucoup de fermeté que sa compétence d’appréciation se limitait au cas d’espèce et qu’elle n’était pas compétente pour examiner la compatibilité d’un texte législatif ou réglementaire, en tant que tel, avec la Convention.114 Ensuite, la 111
Cf. C.J.C.E., avis du 28 mars 1996, L’adhésion de la Communauté à la Convention européenne de sauvegarde des Droits de l’Homme et des libertés fondamentales, 2/94, Rec. p. I-1759 112 Cf. de très nombreux commentaires sur cet avis, par exemple: D. Simon. ‘L’avis 2/94 du 28 mars 1996 sur l’adhésion de la Communauté à la Convention européenne des droits de l’homme.’ Europe, 1996, n° 6, p. 1-4; J.-F. Flauss. ‘L’avis 2/94 de la Cour de justice des Communautés européennes du 28 mars 1996. L’orthodoxie constitutionnelle au détriment des droits de l’homme?’ Bulletin des droits de l’homme, Luxembourg, 1996, n° 6, pp. 1-19; C. Vedder. ‘Die verfassungsrechtliche Dimension – die bisher unbekannte Grenze für Gemeinschaftshandeln? Anmerkungen zum Gutachten 2/94, EMRK des EuGH’, Europarecht, 1996, p. 309319; P. Wachsmann. L’avis 2/94 de la Cour de justice relatif à l’adhésion de la Communauté européenne à la Convention européenne des droits de l’homme et des libertés fondamentales. Revue trimestrielle de droit européen, 1996, p. 467-491; R. Errera, ‘La fin d’un songe: l’avis de la Cour de Justice des Communautés européennes sur l’adhésion à la Communauté à la Convention européenne des Droits de l’Homme’, Gazette du Palais, 1-3 décembre 1996, p. 11, et N. Fernández Sola, ‘La adhesión de la Comunidad europea al Convenio europeo de salvaguarda de los derechos humanos y de las libertades fundamentales. Comentario al dictamen 2/94 del Tribunal de Justicia de las Comunidades europeas, Noticias de la Unión europea, 1997, Vol. 13, n° 144, pp. 41-55. 113 Cf. J. Andriantsimbazovina, op.cit. 114 Cf. en dernier lieu et parmi beaucoup d’autres, Amann c. Suisse [GC], n° 27798/95, § 88, CEDH 2000-II. Il faut préciser cependant que ce principe ne concerne que les requêtes individuelles et non les affaires interétatiques.
158
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg Cour respecte toujours avec la même vigueur le principe de spécialité: le principe d’interprétation dynamique de la Convention signifie bel et bien que celle-ci ‘est un instrument vivant, à interpréter à la lumière des conditions actuelles’, mais qu’il ne l’autorise pas à en tirer un droit qui n’y a pas été inséré au départ.115 Il faut cependant reconnaître que l’application de ce principe peut s’avérer quelque peu équivoque, car la Cour elle-même n’a pas encore fixé une limite stricte où finit une simple interprétation extensive et où commence la création d’un nouveau droit. Une application effective du principe de subsidiarité ne peut guère être envisagée sans une prise en compte renforcée du pluralisme des Etats membres et de leurs traditions nationales.116 Ainsi, comme la Cour l’a souligné à plusieurs reprises, ‘on chercherait en vain dans l’ordre juridique et social des Etats contractants une notion européenne uniforme de la morale et les autorités nationales se trouvent en principe mieux placées que le juge international pour se prononcer sur le contenu précis des exigences de cette dernière comme sur la ‘nécessité’ d’une ‘restriction ‘ou ‘sanction’ destinée à y répondre’. 117 L’exemple le plus spectaculaire de la retenue de la Cour EDH est la doctrine de la marge d’appréciation à laquelle elle recourt afin d’interpréter les dispositions de la Convention: la jurisprudence de la Cour a reconnu aux autorités nationales une marge d’appréciation – tout d’abord au regard des articles de la Convention qui prévoient, eux-mêmes et expressis verbis, des limitations aux droits consacrés118, mais également au 115
Cf. notamment Johnston et autres c. Irlande, arrêt du 18 décembre 1986, série A n° 112, pp. 24-25, § 53. Cf. également la thèse précitée de Liu Wei, op.cit., et S. Prebensen, ‘Evolutive Interpretation of the European Convention on Human Rights’, in: Protection des droits de l’homme: la perspective européenne, mélanges à la mémoire de Rolv Ryssdal, loc.cit., pp. 1123-1137. 116 Cf. M. Delmas-Marty, ‘Pluralisme et traditions nationales (Revendication des droits individuels)’, in: Quelle Europe pour les Droits de l’Homme? La Cour de Strasbourg et la réalisation d’une ‘union plus étroite’, dir. P. Tavernier, Bruxelles, Bruylant, 1996, pp. 81-92, ainsi que J. Andriantsimbazovina, op.cit. 117 Cf., par exemple, Handyside c. Royaume-Uni, arrêt du 7 décembre 1976, série A n° 24, p. 22, §§ 47-48. 118 De telles limitations sont expressément prévues par les articles 2 § 2 (droit à la vie), 4 § 3 (interdiction du travail forcé ou obligatoire), 5 § 1 (droit à la liberté et à la sûreté), 8 § 2 (droit au respect de la vie privée et familiale), 9 § 2 (liberté de pensée, de conscience et de religion), 10 § 2 (liberté d’expression) et 11 § 2 (liberté de réunion et d’association) de la Convention; par l’article 1er (protection de la propriété)du Protocole n° 1; par l’article 2 §§ 3 et 4 (liberté de circulation) du Protocole n° 4; article 1 § 2 (garanties procédurales en cas d’expulsion d’étrangers) 159
Juris Rudevskis regard de toute autre disposition de la Convention, pourvu que les droits y consacrés ne soient pas de nature absolue.119 Cet article est évidemment trop restreint pour parler de la jurisprudence respective en détail; nous nous limiterons donc d’en citer quelques exemples.120 Ainsi, en ce qui concerne la liberté d’expression, la Cour a accepté que les Etats y apportent des limitations plus amples que d’habitude lorsqu’il s’agit de la publicité ou d’autres actes semblables en matière commerciale.121 De même, en matière de blasphème, la Cour admet des limitations à la liberté d’expression au nom de la liberté de religion et de protection des sentiments des croyants: les autorités nationales sont mieux placées que le juge international pour déterminer la place et l’importance de la religion dans la société respective.122 En interprétant les articles 2 et 8 de la et 2 § 2 (droit à un double degré de juridiction en matière pénale) du Protocole n° 7. A cet égard, cf. également les articles 15 (dérogation en cas d’état d’urgence) et 16 (restrictions à l’activité politique des étrangers) de la Convention. 119 Ainsi, la Cour a reconnu la légitimité de ‘limitations implicites’ et, par conséquent, l’existence d’une marge d’appréciation des autorités nationales au regard du droit à des élections libres, garanti par l’article 3 du Protocole n° 1; cf. Mathieu-Mohin et Clerfayt c. Belgique, arrêt du 2 mars 1987, série A no 113, p. 23, § 52; Gitonas et autres c. Grèce, arrêt du 1er juillet 1997, Recueil des arrêts et décisions 1997-IV, pp. 1233-1234, § 39; Ahmed et autres c. Royaume-Uni, arrêt du 2 septembre 1998, Recueil 1998-VI, p. 2384, § 75, Labita c. Italie [GC], no 26772/95, § 201, CEDH 2000-IV, et, en dernier lieu, Podkolzina c. Lettonie, n° 46726/99, § 33, CEDH 2002-II. 120 Pour des études très bien développées de la marge d’appréciation, cf. notamment M. de Salvia, ‘Contrôle européen et principe de subsidiarité: faut-il encore (et toujours) émarger à la marge d’appréciation?’, in: Protection des droits de l’homme: la perspective européenne; mélanges à la mémoire de Rolv Ryssdal, loc.cit., pp. 373-385; Lord Mackay of Clashfern, ‘The margin of appreciation and the need for balance’, ibidem, pp. 837-843 , et J. Callewaert, ‘Quel avenir pour la marge d’appréciation?’, ibidem, pp. 147-166. 121 Cf. markt intern Verlag GmbH et Klaus Beermann c. Allemagne, arrêt du 20 novembre 1989, série A no 165, pp. 19-20, § 33; Casado Coca c. Espagne, arrêt du 24 février 1994, série A n° 285-A, p. 20, §§ 50-51; Jacubowski c. Allemagne, arrêt du 23 juin 1994, série A no 291-A, p. 14, § 26; Hertel c. Suisse, arrêt du 25 août 1998, Recueil 1998-VI, p. 2330, § 47, et Vgt Verein gegen Tierfabriken c. Suisse, n° 24699/94 § 69, CEDH 2001-VI. Cf. également V. Berger. ‘Publicité professionnelle et liberté d’expression’, in: Protection des droits de l’homme: la perspective européenne, mélanges à la mémoire de Rolv Ryssdal, loc.cit. p. 103-114. 122 Cf. Otto-Preminger-Institut c. Autriche, arrêt du 20 septembre 1994, série A no 295, pp. 20-21, § 56, et Wingrove c. Royaume-Uni, arrêt du 25 novembre 1996, Recueil 1996-V, pp. 1957-1958, § 58. Cette jurisprudence a fait l’objet de critiques assez
160
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg Convention, elle laisse à l’Etat une marge de manœuvre extrêmement large en matière d’avortement...123 Il ne s’agit là que de quelques exemples qui illustrent très bien la retenue d’appréciation de la Cour EDH. Mais le respect des particularismes nationaux et la reconnaissance d’une marge d’appréciation suffisamment large aux autorités des Etats membres est également caractéristique de la Cour de Justice. On a déjà mentionné le célèbre arrêt Keck et Mithouard, reconnaissant aux autorités nationales une grande latitude dans l’établissement de certaines modalités de vente qui, normalement, devraient être prohibées par l’article 28 du Traité CE. Un exemple encore plus spectaculaire a été offert par l’arrêt Grogan et autres, concernant la prohibition, par les juridictions irlandaises, de la diffusion des informations relatives à l’avortement. Dans cet arrêt, la Cour de Justice a jugé que ‘l’interruption médicale de grossesse, réalisée conformément au droit de l’Etat où elle a lieu’, constitue ‘un service au sens de l’article 50124’ du Traité. Toutefois, selon la Cour, ‘le lien entre l’activité des associations [concernées] et les interruptions médicales de grossesse pratiquées par les cliniques d’un autre Etat membre’ était ‘trop ténu pour que l’interdiction de diffuser des informations puisse être considérée comme une restriction’ à la liberté de prestation de services, ‘relevant de l’article 49125 du traité’.126 En acerbes, non seulement de la part de la doctrine française que l’on pourrait soupçonner de l’anticléricalisme traditionnel des Lumières, mais également de la part de la doctrine de certains autres pays: cf. P. Wachsmann, ‘La religion contre la liberté d’expression: sur un arrêt regrettable de la Cour européenne des droits de l’homme. Arrêt Otto-Preminger-Institut’, Revue universelle des droits de l’homme, 1994, pp. 441-449; F. Rigaux, ‘La liberté d’expression et ses limites’, Revue trimestrielle des droits de l’homme, 1995, pp. 401-415; F. Margiotta Broglio, ‘Un scontro tra libertà: la sentenza Otto-Preminger-Institut della Corte europea’, Rivista di diritto internazionale, 1995, pp. 368-378; W. Platzgrummer. ‘Herabwürdigung religiöser Lehren, Meinungsfreiheit und Freiheit der Kunst’, Juristische Blätter, 1995, p. 137-142. A notre avis, ces critiques ont été très bien réfutées par P. Mahoney, ‘Universality versus subsidiarity in the Strasbourg case-law on free speech. Explaining some recent judgments’, European Human Rights Law Review, 1997, pp. 364-379. 123 Cf. Boso c. Italie (déc.), n° 50490/99, CEDH 2002-VII. Sur ce point, cf. également Open Door et Dublin Well Woman c. Irlande, arrêt du 29 octobre 1992, série A, 246-A. 124 Ex-article 60. 125 Ex-article 49. 126 Cf. C.J.C.E., arrêt du 4 octobre 1991, S.P.U.C. c. Stephen Grogan et autres, C159/90, Rec. p. 4685. A cet égard, cf. J. Andriantsimbazovina, op.cit. 161
Juris Rudevskis conséquence, elle n’a pas trouvé contraires à celui-ci les restrictions à la diffusion d’informations par les organisations en cause; l’appréciation communautaire s’est donc révélée très tolérante à l’égard des compétences étatiques impliquant des questions intimement liées à la morale. Il faut souligner que, dans l’affaire Grogan, la Cour de Luxembourg n’a pas recherché si l’interdiction litigieuse se heurtait à l’article 10 de la Convention: eu égard à ses conclusions relatives à la restriction aux services, elle a estimé que la réglementation nationale en cause ‘ne se situ[ait] pas dans le cadre du droit communautaire’. Or, saisie du même problème dans le cadre de l’affaire Open Door et Dublin Well Woman c. Irlande, la Cour EDH a tranché en faveur des requérantes, en condamnant l’Irlande pour une ingérence disproportionnée dans leur droit à la liberté d’expression.127 La Cour de Strasbourg s’est donc montrée plus exigeante en appliquant l’article 10 de la Convention que la Cour de Luxembourg en appliquant les dispositions du Traité CE sur la libre circulation des services...128 Comme on voit bien, la retenue des Cours de Luxembourg et de Strasbourg s’opère d’une manière similaire. Toutefois, comme on l’a vu, dans les ordres juridiques, le principe de subsidiarité doit être lu en union étroite avec le principe de coopération, renforcé, d’un côté, par la primauté du droit communautaire dans le système communautaire et, de l’autre côté, par la supériorité de la Convention EDH par rapport aux droits nationaux. Il nous reste donc à comparer l’activisme des deux hautes juridictions européennes sur le plan substantiel. B. La subsidiarité passive (activisme judiciaire) Parfois, lorsque l’intérêt supranational l’exige et prévaut sur les intérêts particuliers nationaux, les deux Cours n’hésitent pas à encadrer, voire même
127
Cf. l’arrêt Open Door et Dublin Well Woman c. Irlande, précité, §§ 63-80. Cf. P. Wachsmann. ‘Une certaine marge d’appréciation: considérations sur les variations du contrôle européen en matière de liberté d’expression’, in: Les droits de l’homme au seuil du troisième millénaire: mélanges en hommage à Pierre Lambert, Bruxelles, Bruylant, 2000, pp. 1017-1042, ainsi que G. Hogan. ‘The right to life and the abortion question under the European Convention on Human Rights’, in: Human rights. A European perspective, ed. L. Heffernan, Dublin, The Round Hall Press - Irish Centre for European Law, 1994, pp. 104-116, et M. Schlag. ‘The activities of the Council of Europe in the protection of unborn human life’, Persona y Derecho. Suplemento Humana Iura de Derechos Humanos, 1994, no. 4, pp. 185196. 128
162
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg à restreindre, les compétences nationales en développant des concepts autonomes communautaires et européens.129 Ainsi, se fondant sur les principes d’effet direct et de primauté, la Cour de Justice a constamment créé des concepts communautaires. Elle peut le faire de deux manières: soit en établissant de nouvelles notions, soit en attribuant aux concepts existant en droit interne un sens particulier communautaire. Au fil des années, la Cour a créé des notions autonomes de ‘médicaments’, ‘d’aides publiques’, de ‘service public’ et bien d’autres.130 Un exemple typique est l’interprétation, par la Cour de Justice, de l’article 86 § 2 du Traité CE131, relatif à la’gestion de services d’intérêt économique général’ et autorisant les Etats à poser des restrictions à la concurrence pour assurer l’accomplissement des missions accomplis par ces services. Dans ses fameux arrêts Corbeau132 et Commune d’Almelo133, la Cour a établi des critères plus ou moins uniformes pour tracer les limites de la notion du ‘service public’ au sens communautaire; par exemple, dans l’affaire Corbeau, elle a déclaré que ‘la Régie des postes [belge] est chargée d’ un service d’ intérêt économique général consistant dans l’obligation d’ assurer la collecte, le transport et la distribution du courrier, au profit de tous les usagers, sur l’ ensemble du territoire de l’ État membre concerné, à des tarifs uniformes et à des conditions de qualité similaires, sans égard aux situations particulières et au degré de rentabilité économique de chaque opération individuelle’.134 Il s’agit donc d’une autonomisation des concepts
129
M. Andriantsimbazovina distingue un ‘encadrement -communautarisation’ en droit communautaire et un ‘encadrement-attraction’ dans la Convention EDH; cf. J. Andriantsimbazovina, op.cit. 130 Par exemple, pour la notion communautaire de ‘médicament’, cf. C.J.C.E., arrêt du 16 avril 1991, Upjohn, C-112/89, Rec. p. I-1703, et arrêt du 28 octobre 1992, Ter Voort, C-219/91, Rec. p. I-5485. 131 Ex-article 90 § 2. 132 Cf. C.J.C.E., arrêt du 19 mai 1993, Paul Corbeau, C-320/91, Rec. p. I-2533. 133 Cf. C.J.C.E., arrêt du 27 avril 1994, Commune d’Almelo, C-393/92, Rec. p. I1477. 134 Cf. l’arrêt Corbeau précité, § 15. Dans l’arrêt Commune d’Almelo, suivant la même approche, une clause d’achat exclusive interdisait à un distributeur local de s’approvisionner ailleurs que chez le producteur – distributeur régional a ainsi été déclaré justifiable parce qu’elle permet à l’entreprise de distribution régionale d’assurer sa mission d’intérêt général. 163
Juris Rudevskis supranationaux que les autorités nationales appliquant le droit communautaire doivent respecter.135 Quant à la Cour EDH, son attitude était initialement un peu différente de celle de la Cour de Justice, puisqu’elle préférait utiliser les notions du droit national et y donner un sens autonome, plutôt que créer des concepts totalement nouveaux.136 L’exemple le plus spectaculaire de cette approche sont les notions de ‘matière civile’ et ‘matière pénale’ au sens de l’article 6 § 1 de la Convention. En effet, depuis les débuts de sa jurisprudence sur ce point137, la Cour a saisi la dangerosité d’une approche trop laxiste et, pour ainsi dire, ‘trop subsidiaire’ à la définition de ces deux notions: celle-ci pourrait inciter les Etats à soustraire un très grand nombre de litiges de l’emprise de l’article 6 § 1, en extrayant les procédures respectives tant du champ ‘civil’ que du champ ‘pénal’ au niveau interne. Or, en ajustant et en précisant incessamment les limites du champ d’application de l’article 6 § 1, la Cour commence de plus en plus à créer des concepts européens autonomes, se rapprochant ainsi de la tendance suivie par la Cour de Luxembourg. Par exemple, dans l’arrêt Pellegrin c. France, elle a introduit un ‘critère fonctionnel’pour déterminer l’application du volet civil de l’article 6 § 1 au contentieux de la fonction publique.138 De même, dans l’arrêt Ferrazzini c. Italie, rendu dans le domaine du droit fiscal, la Cour a recouru à un faisceau d’indices pratiquement indépendant des critères nationaux afin de fixer des limites précises à l’application de l’aspect civil de 135 Toutefois, il faut reconnaître que la subsidiarité continue à jouer un grand rôle sur ce point. D’après la formule utilisée par M. Simon, les notions communautaires ne se substituent pas totalement à celles du droit national; la Cour de Justice fixe leurs limites externes et laisse au droit national de définir le reste; cf. D. Simon, ‘Les mutations des services publics du fait des contraintes du droit communautaire’, in: Service public et Communauté européenne: entre l’intérêt général et le marché, actes du colloque des 17, 18 et 19 octobre 1996, CEDECE/IRENE, Strasbourg, et R. Kovar, ‘Droit communautaire et service public: esprit d’orthodoxie ou pensée laïcisée?’, Revue trimestrielle de droit européen, 1996, p. 215. 136 Cf. J. Andriantsimbazovina, op.cit., ainis que F. Sudre, ‘Les concepts autonomes de la Convention européenne des droits de l’homme’, in: Cahiers de l’IDEDH, Montpellier, 1997, n° 6, p. 136. 137 Cf. notamment Engel et autres c. Pays-Bas, arrêt du 23 novembre 1976, série A no 22, et Öztürk c. Allemagne, arrêt du 21 février 1984, série A no 73. 138 Cf. Pellegrin c. France [GC] du 8 décembre 1999, no 28541/95, §§ 64-67, CEDH 1999-VIII. L’efficacité du critère fonctionnel a été amplement démontrée dans la jurisprudence ultérieure: cf., parmi d’autres, Frydlender c. France [GC], n° 30979/96, §§ 33-36, CEDH 2000-VII, et Jarlan c. France, no 62274/00, § 10, 15 avril 2003.
164
L’application du principe de subsidiarité par les Cours européennes de Luxembourg et de Strasbourg l’article 6 § 1 au contentieux fiscal.139 Dans ces cas – ainsi que dans bien d’autres – la subsidiarité se plie devant une sorte d’harmonisation, mais on ne peut pas pour autant dire que la subsidiarité soit réellement mise en cause. A notre avis, il s’agit plutôt d’éviter des carences du standard national de protection en fixant des points de repère communs. Un deuxième exemple, encore plus marquant, de l’encadrement des compétences nationales par la Cour EDH, est l’application de l’article 41 de la Convention.140 A l’origine, la Cour appliquait cette disposition en suivant rigoureusement le principe de subsidiarité: elle prononçait d’abord un arrêt constatant une violation de la Convention, puis, après l’écoulement d’un certain délai et en l’absence d’un accord entre les parties – ce qui était le plus souvent le cas – elle adoptait un deuxième arrêt sur la satisfaction équitable.141 Or, il y a environ dix ans, la Cour changea son approche et commença à examiner la question de satisfaction équitable dans le même arrêt constatant la violation. Ceci signifie en effet que la Cour a en quelque sorte inversé le principe général: elle part maintenant de la présomption que le droit interne est insuffisant pour offrir un redressement adéquat.142 Il est 139
Cf. Ferrazzini c. Italie [GC], no 44759/98, §§ 24-31, CEDH 2001-VII. En revanche, sur l’aspect pénal, cf. Bendenoun c. France, arrêt du 24 février 1994, série A n° 284, p. 20, § 47, et, dans la même affaire, rapport de la Commission du 10 décembre 1992, § 59. On peut encore citer Lauko c. Slovaquie et Kadubec c. Slovaquie, arrêts du 2 septembre 1998, Recueil 1998-VI, précisant les critères selon lesquelles une procédure ‘administrative’ selon le droit interne est qualifiée de ‘pénale’ au sens de la Convention. 140 Ex-article 50. Cet article dispose: ‘Si la Cour déclare qu’il y a eu violation de la Convention ou de ses Protocoles, et si le droit interne de la Haute Partie contractante ne permet d’effacer qu’imparfaitement les conséquences de cette violation, la Cour accorde à la partie lésée, s’il y a lieu, une satisfaction équitable.’ 141 ¨Pour ne citer que trois exemples, cf. De Wilde, Ooms et Versyp c. Belgique (satisfaction équitable), arrêt du 10 mars 1972, série A n° 14; Airey c. Irlande (satisfaction équitable), arrêt du 6 février 1981, série A n° 41, et Barberà, Messegué et Jabardo c. Espagne (satisfaction équitable), arrêt du 13 june 1994, série A n° 285C. 142 Aujourd’hui, la pratique des deux arrêts consécutifs, pratique générale au début, est devenue une exception; elle est essentiellement utilisée dans des affaires complexes concernant le droit au respect des biens, où le calcul des dommages matériels est si compliqué que la Cour laisse aux parties le soin de tenter de les déterminer au début. Cf. par exemple, les arrêts récents Sovtransavto Holding v. Ukraine, no 48553/99, du 2 octobre 2003, et Ex-roi de Grèce et autres c. Grèce, no 25701/94, du 28 novembre 2002. 165
Juris Rudevskis vrai que, du point de vue de la subsidiarité, cette jurisprudence est quelque peu équivoque: on pourrait même dire que, par une telle pratique généralisée, l’article 41 perd son sens voulu par les auteurs de la Convention.143 Toutefois, on ne peut pas nier que cette approche a considérablement allégé la tâche de la Cour face à l’énormité de sa charge de travail qui ne cesse d’augmenter suite à l’adhésion de nouveaux Etats membres à la Convention.144 Quelle conclusion générale pouvons-nous tirer de notre comparaison? L’une est évidente: dans l’ajustement perpétuel de l’intérêt national et de l’intérêt supranational, la subsidiarité est avant tout un instrument d’équilibre. A cet égard, il faut citer l’actuel Greffier de la Cour EDH, M. Paul Mahoney, selon lequel l’activité et la retenue de cette Cour ne sont que ‘deux faces de la même médaille’145 – tout en soulignant que cette formule s’applique aux deux grandes juridictions européennes.
143
Cf. J. Andriantsimbazovina, op.cit. Cf. notamment Ch. Tomuschat. ‘Just satisfaction under article 50 of the European Convention on Human Rights’, in: Protection des droits de l’homme: la perspective européenne, mélanges à la mémoire de Rolv Ryssdal, loc. cit., pp. 1409-1430. 145 Cf. P. Mahoney, ‘Judicial activism and judicial self-restraint in the European Court of Human Rights: two sides of the same coin’, Human Rights Law Journal, 1990, no. 1-2, pp. 57-88. 144
166
Domestic Remedies for Breach of EC Law Raimundas Moisejevas*
Contents 1. Introduction 2. Do Member States Enjoy Procedural Autonomy? 2.1. Margin of Discretion Instead of Procedural Autonomy 2.2. National Procedural Rules must be Modified, if they do not Guarantee Effective Enforcement of EC Law 2.3. National Courts must Apply EC Law, even if this is Precluded by National Procedural Rules 2.4. National Courts must not Enforce any National Rule Discriminating between Citizens of Different EU Countries 2.5. Decisions of the European Court of Justice Affect Procedural Rules in Member States 2.6. Acts of the European Community Impose Certain Limitations on National Procedural Rules of Member States 3. Relationship between a Margin of Discretion to Establish National Procedure and Requirement of Uniform Application of EC Law 4. Monistic System as a Consequence of Direct Effect and Supremacy 5.Conclusion 1. Introduction After accession to the European Union new members will have to undergo considerable changes in their political and legal systems. Certain inevitable adjustments in national judicial systems will be particularly important. In the European Union national courts are responsible for the legal protection of rights, which individuals derive from the European Community (EC) law.1 National courts have to eliminate obstacles for the free movement of goods, services, capital and persons. While ensuring respect for the EC law, judiciaries have to pay attention to certain specific features of the European Community that are spelled out in the case-law of the European Court. Two
*
LL.M. (Law University of Lithuania), Lecturer at the Law University of Lithuania. John Temple Lang, ‘The Duties of National Authorities under Community Constitutional Law,’ 23 European Law Review, (1998), p. 109. 1
167
Raimundas Moisejevas major facets are supremacy and direct effect of EC law.2 Jurisprudence of the European Court of Justice (ECJ) on supremacy and direct effect will necessitate great changes for the national judiciaries of acceding States. In the past most acceding countries adhered to the dualist doctrine and their judges were forbidden from giving precedence to provisions of international law over conflicting provisions of national law. Moreover, in national courts individuals could not rely directly on provisions of international law. After accession national systems will have to be adapted. In a case of conflict national judges will have to set aside any provision of national law, even constitutional provisions if they contradict EC law. Questions of relationship between EC law and national law promise to be of special importance. 2. Do Member States Enjoy Procedural Autonomy? 2.1. Margin of Discretion Instead of Procedural Autonomy In large part national authorities of Member States are entrusted with the power to administer the legal system of the European Community. National courts give effect to the Community law in accordance with the procedures laid down by national law.3 Therefore it is often argued that Member States enjoy procedural autonomy in application of Community law. According to the New Webster’s Dictionary the word ‘autonomous’ means ‘self governing; independent; subject to its own laws only’.4 Thus in order to prove that Member States enjoy procedural autonomy, it would be necessary to prove that the content of procedural rules of Member States is not determined by any other subject. It should be proved that Member States are free to determine their national civil proceedings, even in the context of EC law system. However, inquiry into EC law proves the opposite. The ECJ stated in Rewe-Zentralfinanz ‘ . . . in the absence of Community rules on this subject it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of
2 Federico Mancini, ‘The Making of a Constitution for Europe,’ 26 Common Market Law Review, (1989), p. 595. 3 Koen Lenaerts and Dirk Arts, Editor: Robert Bray, Procedural Law of the European Union, London, Sweet & Maxwell, 1999, p. 3. 4 New Webster’s Dictionary of the English Language, Delhi, Surjeet Publications, 1989, p. 107.
168
Domestic Remedies for Breach of EC Law Community law . . . ’5 Likewise the Court provided in Dilexport ‘ . . . the problem of disputing charges which have been unlawfully claimed or refunding charges which have been paid when not due is settled in different ways in the various Member States . . . this diversity between national systems derives mainly from the lack of Community rules on the refund of national charges levied though not due’.6 Both these cases provide that Member States apply their own national procedural rules, not because Member States have complete sovereignty in enacting procedural rules, but since at the present time there is ‘the lack of Community rules’ for direct regulation of many issues. According to Sacha Prechal, Member States might apply their own procedural law rules ‘. . . as long as no Community rules have been enacted and direct Community competence is absent’.7 Thus, the extent of the area of procedural ‘autonomy’ clearly depends on Community action. However, such a statement is contradictory in itself, since if the State has procedural autonomy as manifestation of its sovereignty, another subject e.g. the Community cannot modify this procedural ‘autonomy’. Former judge of the ECJ Kakouris8 and former A.G. W. Van Gerven9 support such standpoint. W. Van Gerven suggests to abandon the term procedural autonomy and to speak instead about the procedural competence of Member States.10 However, in this article it is submitted that in pursuance of clarity of concepts it is better to assert that Member States enjoy a considerable margin of discretion regarding the way in which they organise their own judicial system. 2.2. National Procedural Rules must be Modified, if they do not Guarantee Effective Enforcement of EC Law The House of Lords, before which the matter concerning Factortame was brought, held in its judgment of 18 May 1989 that, ‘under national law, the 5
Case C-33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer fur das Saarland, [1976] ECR I-01989, para. 5. 6 Case C-343/96, Dilexport Srl v. Amministrazione delle Finanze dello Stato, [1999] ECR I-00579, para. 24−25. 7 Sacha Prechal, ‘Community law in national courts: The lessons from Van Schindjel’, 35 Common Market Law Review, (1998), p. 686. 8 Constantinos Kakouris, ‘Do the Member States possess judicial procedural “autonomy”’, 34 Common Market Law Review, (1997), p. 1390. 9 Walter Van Gerven, ‘Of rights, remedies and procedures’, 57 Common Market Law Review, (2000), p. 501. 10 Ibid., p. 502. 169
Raimundas Moisejevas English courts had no power to grant interim relief in a case such as the one before it . . . The grant of such relief was precluded by the old common-law rule that an interim injunction may not be granted against the Crown, that is to say against the government, in conjunction with the presumption that an Act of Parliament is in conformity with Community law until such time as a decision on its compatibility with that law has been given’.11 The ECJ observed in turn ‘ . . . the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court, which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule’.12 It follows from Factortame that national procedural rules are recognised as inadequate if these rules do not grant effective enforcement of EC law. In such case national procedure has to be substantially altered. Modification of national procedure might even lead to abrogation of firmly settled national rules. Although in Factortame the European Court did not establish a new remedy, the existing remedy was applied in completely new circumstances not applied before the Factortame decision in the English courts. The fact that national procedural laws of the UK were suspended in order to ensure enforcement of Community law clearly denies the existence of national procedural autonomy. The European Court repealed the old common-law rule of the UK ‘that an interim injunction may not be granted against the Crown’. The same might be said about setting aside of previously well-established presumption in the UK law of compatibility between Act of Parliament and EC law. 2.3. National Courts must Apply EC Law, even if this is Precluded by National Procedural Rules The European Court held in Peterbroeck ‘ . . . the impossibility for national courts or tribunals to raise points of Community law of their own motion does not appear to be reasonably justifiable by principles such as the requirement of legal certainty or the proper conduct of procedure’.13 Further the Court proceeded ‘Community law precludes application of a domestic 11
Case C-213/89, R. v. Secretary of State for Transport, ex parte Factortame Ltd. and Others, [1990] ECR I-02433, para. 13. 12 Ibid., para. 21. 13 Case C-312/93, Peterbroeck, Van Campenhout & Cie v. Belgian State, [1995] ECR I-4599, para. 21.
170
Domestic Remedies for Breach of EC Law procedural rule whose effect, in procedural circumstances such as those in question in the main proceedings, is to prevent the national court, seized of a matter falling within its jurisdiction, from considering of its own motion whether a measure of domestic law is compatible with a provision of Community law when the latter provision has not been invoked by the litigant within a certain period’.14 From this judgment two conclusions relevant to national procedure should be made. First, the ruling of the ECJ in Peterbroeck case obliges national courts to set aside national procedural rules that render the exercise of the Community right excessively difficult. Secondly, national courts are obliged to apply EC law of their own motion, even if such application is normally not allowed by national procedure. 2.4. National Courts must not Enforce any National Rule Discriminating between Citizens of Different EU Countries In Saldanha the ECJ noticed ‘ . . . the first paragraph of Article 6 of the Treaty must be construed as precluding a Member State from requiring provision of security for costs by a national of another Member State who is also a national of a non-member country, in which he is resident, where that national, who is not resident and has no assets in the first Member State, has brought proceedings before one of its civil courts in his capacity as a shareholder against a company established in that Member State, if such a requirement is not imposed on its own nationals who are not resident and have no assets there’.15 Concerning almost the same issue the Bickel case provides ‘Article 6 of the EU Treaty precludes national rules which, in respect of a particular language other than the principal language of the Member State concerned, confer on citizens whose language is that particular language and who are resident in a defined area the right to require that criminal proceedings be conducted in that language, without conferring the same right on nationals of other Member States travelling or staying in that area, whose language is the same’.16 There are many other cases, which equally provide that national courts cannot apply national provisions, if these provisions discriminate between citizens of different EU countries.17
14
Ibid., para. 20. Case C-122/96, Saldanha, [1997] ECR I-05325, para. 30. 16 Case C-274/96, Bickel, [1998] ECR I-07637, para. 31. 17 Case C-398/92, Mund & Fester, [1994] ECR I-00467; Case C-43/95, Data Delecta, [1996] ECR I-04661; Case C-323/95, Hayes, [1997] ECR I-01711. 15
171
Raimundas Moisejevas 2.5. Decisions of the European Court of Justice Affect Procedural Rules in Member States Judgments of the ECJ affect legal systems of the Member States in many ways. It might suffice to point out few judgments related to the burden of proof in tax cases in order to shed light on several important topics. In Barra the European Court held ‘Community law precludes a national legislative provision which restricts repayment of a duty held to be contrary to the Treaty by a judgment of the Court solely to plaintiffs who brought an action for repayment before delivery of the judgment’.18 In Deville, the ECJ stated ‘a national legislature may not, subsequent to a judgment of the Court from which it follows that certain legislation is incompatible with the Treaty, adopt a procedural rule which specifically reduces the possibilities of bringing proceedings for repayment of charges levied though not due under that legislation’.19 Similarly, in the judgment in Dilexport it was provided ‘a Member State may not adopt provisions making repayment of a tax held to be contrary to Community law by a judgment of the Court, or whose incompatibility with Community law is apparent from such a judgment, subject to conditions relating specifically to that tax which are less favourable than those which would otherwise be applied to repayment of the tax in question.’20 The European Court intends to set out certain standards that have to be followed by national authorities in the process of enacting national procedural rules. The Court even provides that Member States may not adopt laws that embed certain provisions. National legislation cannot go under the respect of Community standards established in the case-law of the ECJ. Judgments of the European Court might not only lead to abolishment of certain procedural rules, but even lead to anticipatory prohibition to enact certain laws. As the field of application of EC law is going to cover almost all fields at least of civil law, importance of the Courts judgments inclines to grow.
18
Case C-309/85, Barra v. Belgium and Another, [1998] ECR I-00355, para. 19. Case C-240/87, Deville v. Administration des Impǀts, [1988] ECR I-03513, para. 17. 20 Case C-343/96, Dilexport Srl v. Amministrazione delle Finanze dello Stato, [1999] ECR I-00579, para. 39. 19
172
Domestic Remedies for Breach of EC Law 2.6. Acts of the European Community Impose Certain Limitations on National Procedural Rules of Member States A number of Community acts have limited a margin of discretion of the Member States to establish procedural rules governing application of EC law. At first, it is relevant to recall Amsterdam Treaty that introduced Articles 65 and 67. With introduction of Article 65 harmonisation became a duty in the European Union. These Articles indicate that procedural rules should be of special concern to the Community legislature ‘insofar as necessary for the proper functioning of the internal market’. One of the main objects of judicial cooperation established under paragraph (b) of Article 65 is ‘promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction’. Article 65 and 67 foresee need for legislative intervention into the procedural rules of Member States in order to improve uniformity in laws of Member States. The European Community has already enacted several regulations, which indeed aim not to harmonise national procedural rules, but to unify them. These Council Regulations are: regulation on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters;21 Regulation on insolvency proceedings;22 regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses;23 regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;24 and regulation on the service in the Member States of judicial and extra-judicial documents in civil or commercial matters.25 However, procedural autonomy supposes that EC law 21
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, Official Journal L 174, 27/06/2001 P. 0001 – 0024. 22 Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, Official Journal L 160, 30/06/2000 P. 0001 – 0018. 23 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, Official Journal L 160, 30/06/2000 P. 0019 – 0036. 24 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Official Journal L 012, 16/01/2001 P. 0001 – 0023. 25 Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. 173
Raimundas Moisejevas regulates no procedural matters directly. In the case of enumerated regulations it is impossible to speak any longer of autonomy. In this case we should simply refer to EC civil procedure rules. Finally, certain Community Directives must be taken into consideration. Article 6 of Directive on the implementation of the principle of equal treatment for men and women provides that the persons who consider themselves wronged by a failure to apply to them the principle of equal treatment must have the right to pursue their claims ‘by judicial process after possible recourse to other competent authorities’.26 Council Directive on the burden of proof in cases of discrimination based on sex even lays down specific requirements concerning national procedural rules. Article 4 of this Directive requires that national authorities must take measures to ensure that, when the employee has established facts from which it may be presumed that there has been direct or indirect discrimination, the national court must order the employer to prove that there has been no breach of the principle of equal treatment.27 Council Directive on the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts requires the guarantee that measures taken by review bodies can be the subject of judicial review by another body which is a court within the meaning of Article 234 EC and which is independent of both the contracting authority and the review body.28 3. Relationship between a Margin of Discretion to Establish National Procedure and Requirement of Uniform Application of EC Law Although Member States have a margin of discretion to determine procedural rules for the enforcement of the rights derived from EC law, their procedural rules must meet certain requirements. These requirements were spelled out by the ECJ in Peterbroeck, Van Campenhout SCS & Cie v. Belgian State ‘ . . . in the absence of Community rules on the subject it is for the domestic legal system of each Member State to designate the courts and 26
Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39: 40). 27 Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14: 6). 28 Council Directive 89/665/EEC on the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395: 30).
174
Domestic Remedies for Breach of EC Law tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law’.29 In this quotation the ECJ mentioned two requirements, which had to be fulfilled within the national procedural law. The first requirement is that of equivalence. The principle of equivalence provides that remedies by national courts intended to guarantee enforcement of Community law have to be equivalent to those for the enforcement of national law.30 The second requirement is that of effectiveness. The principle of effectiveness requires the conditions for remedies before national courts not to make the enforcement of Community law impossible in practice.31 The requirement of uniform application of EC law is firmly established in the case-law of the ECJ as well. Such requirement was formulated in Costa v. Enel, and repeated in a series of decisions: Simmenthal, Brasserie du Pecheur, Foto-Frost, Zuckerfabrik, etc. In Simmenthal the Court had stated that Community law provisions and measures ‘must be fully and uniformly applied in all the Member States . . .’32 Moreover in Brasserie du Pecheur the European Court added that it is ‘the fundamental requirement of the Community legal order that Community law be uniformly applied’.33 On the other hand, beside requirements of effectiveness and equivalence, Member States have quite a wide margin of discretion in their procedural law. As a result it is difficult to achieve uniformity in national law for the enforcement of EC law. At this time there arises a question: how is it possible to reconcile requirement of uniform application and principle of procedural autonomy or (as we suggest) a considerable margin of discretion that Member States enjoy in establishing judicial procedural conditions? 29
Case C-312/93, Peterbroeck, Van Campenhout SCS & Cie v. Belgian State, [1995] ECR I-04599, para. 12. 30 Anthony Arnull, Alan Dashwood, Malcolm Ross, & David Wyatt, Wyatt & Dashwood’s European Union Law, Fourth edition. London: Sweet & Maxwell, 2000, p. 112. 31 Anthony Arnull, The European Union and Its Court of Justice, Oxford, Oxford University Press, 1999, p. 159. 32 Case C-106/77, Administrazione delle Finanze dello Stato v. Simmenthal, [1978] ECR I-00629, para. 14. 33 Case C-46/93, Brasserie du Pecheur S.A. v. Germany, [1996] ECR I-01029, para. 33. 175
Raimundas Moisejevas The ECJ in R. v. Secretary of State for Social Security, ex parte Eunice Sutton provided ‘ . . . the judgment in Marshall II concerns the award of interest on amounts payable by way of reparation for loss and damage sustained as a result of discriminatory dismissal . . . By contrast, the main proceedings concern the right to receive interest on amounts payable by way of social security benefits . . . consequently, the amounts paid in no way constitute reparation for loss or damage sustained and the reasoning of the Court in its judgment in Marshall II cannot be applied to a situation of that kind’.34 According to the ECJ the requirements imposed by EC law on the availability of national remedies depend on the nature of the right at stake and are not universally applicable.35 Further, in Van Schijndel & Van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten the ECJ noticed, ‘ . . . for the purpose of applying those principles, each case which raises the question whether a national procedural provision renders application of Community renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a hole, before the various instances. In the light of that analysis the basic principles of the domestic legal system such as the protection of the rights of defence, the principle of legal certainty and the proper conduct must, where appropriate, be taken into consideration’.36 In order to determine whether national procedural rule is compatible with the requirements of equivalence and effectiveness specific circumstances of each case have to be analysed. National provisions cannot be examined in abstract. However, analysis of specific circumstances of each case and specific national procedural rules of every Member State causes an obstacle in attaining uniform enforcement of EC law. Hence, the European Court itself pointed out obstacles for attainment of uniform enforcement of EC law. The Court considers it as an inevitable consideration in enforcement of EC law, rather than the problem, which should be resolved. Former Advocate General W. Van Gerven noticed that the requirement of uniform application should not be viewed as a requirement, which prohibits national differences.37 Since there is a primary role of the national legal system in laying down the conditions governing the 34
Case C-66/95, R. v. Secretary of State for Social Security, ex parte Eunice Sutton, [1997] ECR I-02163, paras. 23−24. 35 Paul Craig; Grainne de Burca, EU LAW text, cases and materials, Second edition, Oxford, 1998, p. 247. 36 Case C-430-431/93, Van Schijndel & Van Veen v. Stichting Pensioenfonds voor Fysiotherapeuten, [1995] ECR I-04705, para. 19. 37 Supra note 9, p. 505.
176
Domestic Remedies for Breach of EC Law grant of remedies, it follows that there will always be a lack of uniformity in consequences of the application of Community law in the Member States. Warner, another AG, submitted in this respect that the ECJ cannot create ‘ . . . Community law where none exists: that must be left to the Community’s legislative organs’.38 Therefore, it is accepted that national differences in application and enforcement of the EC law are inevitable and do not contradict requirement of uniform application of EC law. 4. Monistic System as a Consequence of Direct Effect and Supremacy The requirement of judicial protection as an overriding principle of Community law has its origin in the doctrine of direct effect. Through the recognition of the direct enforceability of substantive Community law rights, individuals have been afforded a procedural Community law right to judicial protection before national courts. Without the principle of direct effect, protection of rights that individuals derive from EC law basically would be left to the zeal of Member States to enforce these rights. Influence of direct effect was laid down in Simmenthal judgment ‘every national court must, in a case within its jurisdiction apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule’.39 The European Court even noticed that ‘in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the member states on the other is such that those provisions and measures . . . by their entry into force render automatically inapplicable any conflicting provision of . . . national law.’40 The principle of supremacy of Community law was established in Costa v. ENEL, where the Court submitted ‘by creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit
38
Case C-265/78, Ferwerda v. Produktschap voor Vee en Vlees, [1980] ECR I00617, 640. 39 Case C-106/77, Administrazione delle Finanze dello Stato v. Simmenthal, [1978] ECR I-00629, para. 21. 40 Ibid., para. 17. 177
Raimundas Moisejevas within limited fields, and have thus created a body of law which binds both their nationals and themselves’.41 As the supremacy and direct effect of EC law over national law is clear, the next conclusion should be the existence of monistic system so far as the incorporation of Community law is concerned.42 However, monistic system cannot be reconciled with a proposition that Member States enjoy procedural autonomy. Procedural autonomy might exist only in dualist system where national and EC legal systems exist independently one from the other. It should be recalled that the concept of ‘autonomy’ implies independence, with subjection of all legal actors to a States’ laws only. Member States do not have procedural autonomy, since validity of national procedural rules depends on compatibility of these rules with EC law. 5. Conclusion All the above expressed ideas suggest that the European Community law to a large extent influences national procedural rules of Member States and will influence national legal systems of now acceding States after they join the Community. Celebrated judgment in Van Gend & Loos provides ‘the Community constitutes a new legal order in international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields . . . Independent of the legislation of Member States community law not only imposes obligations on individuals but is also intended to confer on them rights which become part of their legal heritage’.43 The Van Gend & Loos and Costa v. ENEL cases proclaim monistic system in the European Community. One of the most important ideas in these cases is the statement 41
Case C-6/64, Costa v. ENEL, [1964] ECR 585, para. 9. Ronald van Ooik, Revamping the European Union's enforcement systems with a view to Eastern enlargement, The Hague: Scientific Council for Government, 2000. (Working documents; 110), p.81. <www.wrr.nl/admin/pdf/werkdocumenten/ w110.pdf > accessed on 7 December 2003. 43 Case C-26/62, Van Gend en Loos v. Nederlandse Administratie der Be-lastingen, [1963] E.C.R. 1, 13. 42
178
Domestic Remedies for Breach of EC Law that there had been a transfer of sovereign powers by the Member States to the Community. There can be no procedural, or judicial ‘autonomy’, if Member States legislative and executive powers are limited. In this article it is even submitted that we should abandon term procedural autonomy and speak instead about a margin of discretion that Member States enjoy in their national legal systems. Acceding States must be aware about restriction of their sovereign powers in the European Community, and alter their judiciary to pay due regard to this tenet as well as the other principles emerging from the leading case-law of the ECJ.
179
Uniform Interpretation and Application of International Agreements in the European Union Gaƺina Žukova*
Contents 1. Introduction 2. Theory of Uniform Interpretation 3. Uniform Interpretation under the EC Treaty 4. Uniform Interpretation under EC(s) Agreements with Third States 4.1. EEA Agreement 4.2. EC-Turkey Customs Union Agreement 4.3. Europe Association Agreements (1) General Provisions (2) Institutional Involvement in Uniform Interpretation (3) Alternative Dispute Settlement Forum (4) New Developments in the EU Dispute Settlement with Third States 5. Conclusions 1. Introduction This Article looks at whether there are means to secure the uniform interpretation and application of the international agreements, to which the European Community(ies) (ECs) make(s) a party, throughout the EU, its Member States and the Contracting Parties. Whereas in the EU framework it is the European Court of Justice (ECJ), which is charged with the task of securing the uniform interpretation of the EC Treaty and of the secondary Community legislation (international agreements included), the wording of the ‘classical’ EU Free Trade/Association/Partnership/Co-operation agreements on uniform interpretation is vague, thus allowing for diverging views, firstly, between the EU and its partners, and, secondly, as regards, for example, the countries of Central and Eastern Europe (CEECs), which concluded the Europe Agreements (EAs) with the ECs and its Member States, between the accession States themselves. This Article also attempts * Ph.D. (EUI, Florence), LL.M. (University of Exeter, UK), B.A. (University of Latvia).
181
Gaƺina Žukova to explain why, contrary to the situation with the European Economic Area Agreement (EEA Agreement), where homogeneity and uniformity in the EEA Agreement’s provisions interpretation were subject to heated debate and major concern, this has not been so in the case of other EU international agreements. Finally, this article considers to what extent the institutional setup provided by the EU international agreements is really adequate for the tasks posed, as well as points at some feasible means which would make the process of interpretation more effective and which such agreements apparently fail to introduce. 2. Theory of Uniform Interpretation First of all, it is necessary to define what is meant by uniformity while interpreting one or another legal norm. As one can imagine, it is already difficult to ensure the uniform interpretation within the boundaries of one state. The task becomes more complicated when there is an international norm, which is subject to interpretation of courts of different States. The situation was summarised elsewhere in the following manner: ‘. . . absolute complete uniformity is unarguably an utopian concept even within the boundaries of a small legal community – in the end all law is applied by human beings who are influenced by their own concepts of justice and legal ethics, and variation will occur. Even in a regional context, uniformity may often be undermined by the party autonomy. This is all the more so where a global convention is concerned, since the people applying the convention stem from completely different cultures and legal backgrounds, and their interpretations of the Convention (at least potentially) can vary immensely’.1
Nonetheless, in spite of all these difficulties, uniform interpretation is a necessary precondition and a guarantee for the certainty about the rule of law and for the coherent application of an agreement throughout all Statesignatories. One can distinguish three main schools of treaty interpretation. These are the subjective (‘intentions of the parties’) approach; the objective (‘textual’)
1
Andersen, C. ‘Uniformity in the CISG in the First Decade of its Application’ in Fletcher, I., Mistelis, L. and Cremona, M. (eds.) Foundations and Perspectives of International Trade Law, London, Sweet & Maxwell, 2001, p. 291, and further at p. 292.
182
Uniform Interpretation and Application of International Agreements in the European Union approach; and the teleological (‘object and purpose’) approach.2 As will be demonstrated later, the ECJ uses all of them. The fundamental international rule on treaties interpretation is found in the 1969 Vienna Convention on the Law of Treaties.3 Article 31 of the Convention’s Section 3 ‘Interpretation of Treaties’ reads: ‘General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose . . . ’
Article 32 provides for the use of the preparatory works (travaux préparatoires) in the situations when interpretation according to Article 31 leaves the meaning ambiguous or obscure or leads to a result that is manifestly absurd or unreasonable. Article 33, in its own turn, reads that where a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the Parties to the treaty have agreed otherwise. The 1988 Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters,4 signatories to which are the EU and EFTA Member States,5 and to which CEECs seek to join at present6 (this is perceived as part of the acquis approximation exercise in the JHA field), contains a special Protocol 2 ‘On the Uniform Interpretation of the Convention’. As the Preamble to the Protocol stipulates (5th Recital), one of the Parties’ aims was ‘to prevent, in full deference to the independence of the courts, divergent interpretations and to arrive at as uniform an interpretation as possible of the provisions of the Convention, and 2
As given in Sinclair, I. The Vienna Convention on the Law of Treaties, Manchester, Dover, N.H.: Manchester University Press, 1984, p. 115. 3 United Nations Treaty Series, Volume 788, p. 354. On Vienna Convention in general see, e.g., Sinclair, supra note 2. 4 OJ L 319 1988, p. 9. See Kaye, P. (ed.) European Case Law on the Judgments Convention, Chichester; New York: Wiley, 1998; Newton, J. The Uniform Interpretation of the Brussels and Lugano Conventions, Oxford and Portland, Oregon, Hart Publishing, 2002. 5 EFTA States: Iceland, Liechtenstein, Norway and Switzerland. 6 See Rozehnalová, N., Part III-Ch. 13−6 ‘Country Report: Czech Republic’ in Ott, A. and Inglis, K. (eds.) Handbook on European Enlargement. A Commentary on the Enlargement Process, The Hague, T.M.C. Asser Institute, 2002, p. 804. 183
Gaƺina Žukova of these provisions and those of the Brussels Convention which are substantially reproduced in this Convention’.
To secure the attainment of this objective, the Parties undertook to (1) pay due account to the principles laid down by any relevant decision of the Contracting States’ courts concerning Convention’s provisions (Article 1 of the Protocol); (2) set up a system of exchange of information concerning judgments delivered pursuant to Lugano and Brussels Conventions (Article 2 of the Protocol); (3) set up a Standing Committee (Article 3 of the Protocol), which would follow the development of the relevant case-law and in case it founds it necessary, to recommend changes to the Convention. Finally, the 1980 Rome Convention on Applicable Contract Law,7 signatories to which are inter alia the EU Member States, has to be mentioned here. The Convention applies to contractual obligations in situations involving choice of laws (private international law). Although as such the Convention is not relevant to the present discussion, it is appropriate to reproduce here its Article 18 on uniform interpretation. It reads: ‘In the interpretation and application of the preceding uniform rules, regard shall be had to their international character and to the desirability of achieving uniformity in their interpretation and application.’
3. Uniform Interpretation under the EC Treaty Within the EU it is the ECJ that interprets Community law and ensures that the interpretation thereof does not vary in relation to the interpretation accorded to it by the various Member States.8 The basic rule to this end is laid down in Article 220 EC Treaty: ‘The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed’. 7
1980 Rome Convention on the Law Applicable to Contractual Obligations (Consolidated version), OJ C 27 1998, p. 34. 8 Hauptzollamt Mainz v. C.A. Kupferberg, Case No. 104/81 (1982), ECR 3641, para. 45; Amministrazione delle Finanze dello Stato v. Società Petrolifera Italiana SpA (SPI) and SpA Michelin Italiana (SAMI), Joined Cases Nos. 267-269/81 (1983), ECR 801, para. 15; S. Z. Sevince v. Staatssecretaris van Justitie, Case No. C-192/89 (1990), ECR I-3461, para. 11; Hermès International v. FHT Marketing Choice BV, Case No. C-53/96 (1998), ECR I-3603, para. 32.
184
Uniform Interpretation and Application of International Agreements in the European Union Such uniform interpretation is secured by means of preliminary rulings. Article 2349 grants the ECJ jurisdiction to give preliminary rulings concerning (a) the interpretation of the EC Treaty itself; (b) the validity and interpretation of acts of the institutions of the Community and of the European Central Bank (ECB); (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. This was confirmed by the ECJ at the start of its jurisprudence in the well-known Van Gend en Loos case: ‘ . . . the task assigned to the Court of Justice under Article 177 [now 234], the object of which is to secure uniform interpretation of the treaty by national courts and tribunals. . .’10
International agreements, to which the EC is a Party, constitute part of the Community acquis,11 and, thus, the ECJ can rule on them. The necessity of securing the uniform interpretation within the Community of such agreements was explained by the Court in the SPI and SAMI case12 ruling on the GATT Agreement: ‘ . . . it is important that the provisions of GATT should, like the provisions of all other agreements binding the Community, receive uniform application throughout the Community. Any difference in the interpretation and application of provisions binding the Community as regards non-Member countries would not only jeopardize the unity of the commercial policy, which according to Article 113 [now Article 133] of the Treaty must be based on uniform principles, but also create distortions in trade within the Community, as a result of differences in the manner in which the agreements in force between the Community and non-Member countries were applied in the various Member States’.
However, provisions of these international agreements that are worded identically or similarly to the EC Treaty rules are not necessarily to be
9
See also Article 23 of the Protocol On the Statute of the Court of Justice. NV Algemene Transport-en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration, Case No. 26/62 (1963), ECR English Special Edition 1. 11 R. & V. Haegeman v. Belgian State, Case No. 181/73 (1974), ECR 449, para. 5; Meryem Demirel v. Stadt Schwäbisch Gmünd, Case No. 12/86 (1987), ECR 3719, paras. 7,12. 12 SPI and SAMI, Joined Cases Nos. 267-269/81, supra note 8, para. 14. 10
185
Gaƺina Žukova interpreted in the same way, since the two sets of agreements may pursue different objectives.13 As the EU is not an autonomous system of law − it also constitutes a part of the international legal system − the ECJ found it appropriate to refer to the rules of interpretation under international law, such as, for example, the earlier mentioned Vienna Convention. In the Metalsa case,14 for instance, on interpretation of the EC-Austria FTA prior to Austria’s accession to the EU, the Court turned to Article 31 of the said Convention: ‘12. An international treaty must not be interpreted solely by reference to the terms in which it is worded but also in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the law of treaties stipulates in that respect that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose . . .’
Based on these considerations, the Court deduced that the interpretation of the EC Treaty rule cannot be extended to the similarly worded clause under the Austrian FTA15 (i.e., ‘object and purpose’ approach). Also ruling on Co-operation Agreements, such as those with Morocco or Yugoslavia, the Court made recourse to the customary rules of interpretation.16 After all, also deciding on the Europe Association Agreements, the Court made a reference to the international rules of interpretation. Thus, ruling on the establishment provisions of the Polish and Czech EAs in the Jany and others case,17 and given the Vienna Convention Article 31 rule, the ECJ came to the conclusion that no difference in meaning can be distinguished between the ‘activities as self-employed persons’ under Article 43 EC Treaty and the ‘economic activities as self13
Opinion 1/91, (1991), ECR I-6079; Polydor Ltd and RSO Records Inc. v. Harlequin Records Shops Ltd. and Simons Records Ltd, Case No. 270/80 (1982), ECR 329, para. 18; The Queen v. Secretary of State for the Home Department, ex parte Julius Barkoci and Marcel Malik, Case No. C-257/99 (2001), ECR I-6557, paras. 52−55. 14 Metalsa Srl., Case No. C-312/91 (1993), ECR I-3751. 15 Ibid., para. 19. 16 Nour Eddline El-Yassini v. Secretary of State for Home Department, Case No. C416/96 (1999), ECR I-1209, para. 47; Racke v. Hauptzollamt Mainz, Case No. C162/96 (1998), ECR I-3655. 17 Aldona Malgorzata Jany and Others v. Staatssecretaris van Justitie, Case No. C268/99 (2001), ECR I-8615.
186
Uniform Interpretation and Application of International Agreements in the European Union employed persons’ under Articles 44 and 45 of the Polish and Czech EAs respectively.18 4. Uniform Interpretation under EC(s) Agreements with Third States 4.1. EEA Agreement By means of the EEA Agreement,19 the EU internal market was extended to the EFTA States.20 So far this is the closest co-operation regime between the EU and third States. Also the clauses on interpretation of the EEA Agreement are by far more developed than in any other agreement involving the EU. Article 6 of the EEA Agreement stipulates that Agreement’s provisions in so far as they are identical in substance to the corresponding rules of the EEC Treaty and ECSC Treaty, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the ECJ, however, ‘without prejudice to future developments of case-law’. The reason for non-adoption on the part of the EFTA States of the future case-law of the ECJ was a fear of losing sovereignty and of subjecting themselves to the legal order, the development of which they cannot influence. The provision is further elaborated in Article 3 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. Special attention should be paid to Chapter 3 ‘Homogeneity,21 Surveillance Procedure and Settlement of Disputes’ of the Agreement, where Article 105(1)22 provides:
18
Ibid., paras. 35−38. OJ L 1 1994, p. 3. 20 Switzerland does not make a party to the EEA Agreement. 21 ‘The EEA has to be homogeneous in the sense that individuals and economic operators should be treated in the same way regardless of whether EEA rules or Community rules are applied’, Sevón, L. and Johansson, M. ‘The Protection of the Rights of Individuals Under the EEA Agreement’, European Law Review, Volume 24, No.4, (1999), p. 374. The notion of homogeneity can also be found in 4th and 15th Recitals to the Preamble and Articles 1, 6, 102, 105, 106 and 111 of the EEA Agreement. See also Editorial comments ‘European Economic Area and European Community: Homogeneity of Legal Orders?’, Common Market Law Review, Volume 36, (1999), pp. 697−701. 22 The same is also provided by the 15th Recital to the EEA Agreement’s Preamble and Article 6 thereof. 19
187
Gaƺina Žukova ‘In order to achieve the objective of the Contracting Parties to arrive at as uniform an interpretation as possible of the provisions of the Agreement and those provisions of Community legislation which are substantially reproduced in the Agreement, the EEA Joint Committee shall act in accordance with this Article.’
The task of this Joint Committee is to keep under constant review the developments of the case-law of the ECJ in order to ‘preserve the homogeneous interpretation of the Agreement’ (Article 105(2)). Moreover, the system of exchange of information on judgements of the EFTA Court, ECJ, CFI and the Courts of last instance of the EFTA States ‘in full deference to the independence of courts’ (Article 106(1)) is introduced. In case of a dispute on the interpretation or application of the Agreement the parties can bring a matter before the Joint Committee (Article 111 (1)). If the dispute is not settled within three months, the ECJ can be requested to give a ruling on the interpretation of the relevant rules (Article 111 (3)), and this ECJ interpretation will have a binding force.23 The EFTA Court, which has jurisdiction only within the framework of EFTA and has no personal or functional links with the ECJ,24 jointly with the independent EFTA Surveillance Authority25 (ESA) exercises the surveillance procedure regarding the EFTA States and is responsible for the settlement of disputes between two or more EFTA States (Article 108). Homogeneity is further enhanced by the fact that the EFTA States, the EFTA Surveillance Authority, the Community and the EC Commission can submit written observations to the EFTA Court.26 Even despite the fact that the objective of homogeneity causes some tension with the notion of sovereignty of the Parties, still 23
See Opinion 1/92, (1992), ECR I-2821, paras. 33−35. Ibid., para. 13. 25 The ESA is set up in parallel to the Commission and ensures the fulfilment of the obligations under the Agreement and the application of rules on competition. See Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, OJ L 344 1994, p. 1, Articles 4-26, and Protocol 23 to the Agreement Concerning the co-operation between the Surveillance Authorities. However, even here the situation is not without problems: ‘Even where two enforcement authorities apply the same basic concepts and employ the same methodologies of review, they may weight the evidence differently and reach conflicting conclusions’, Evans, A. The Integration of the European Community and Third States in Europe, A Legal Analysis, Oxford, Clarendon Press, 1996, p. 225. 26 Protocol 5 to the ESA/Court Agreement on the Statute of the EFTA Court, Article 20. 24
188
Uniform Interpretation and Application of International Agreements in the European Union ‘[t]he EEA’s provisions on legal integration are the heart of the treaty. Without the means to enforce and interpret the treaty, the EEA would be, like other trade agreements, dependent upon the vagaries of political discretion, not the certainty of the rule of law’.27
Before conclusion of the EEA Agreement, the ECJ was asked to rule on compatibility with the EEC Treaty of the system of judicial supervision that was envisaged by the draft Agreement, namely, the creation of a separate EEA Court. In its Opinion 1/9128 the European Court ruled that the creation of a separate EEA Court is impossible, since there was a risk that the caselaw of the latter ‘would have been binding on the Court of Justice and it might have considered the homogeneity objective to be the overriding objective of the EEA Agreement’.29 According to the Court, ‘there is no guarantee that the answers given by the Court of Justice in such proceedings [EFTA States are free to authorise/not authorise a reference to the ECJ and non-obligatory reference by the courts of last instance] will be binding on the courts making the reference . . . It is unacceptable that the answers which the Court of Justice gives to the courts and tribunals of EFTA States are to be purely advisory and without any binding effects’.30
In addition, the EEA Court’s jurisdiction was found unacceptable also because of difference in objectives pursued by the EC Treaty and the Agreement: the latter aims to set up an enhanced free trade area without further integration. The outcome of this Decision 1/91 is that there is only one EFTA Court,31 which does not hear disputes between the Contracting 27
Peers, S. ‘An Ever Closer Waiting Room?: The Case for Eastern European Accession to the European Economic Area’, Common Market Law Review, Volume 32, (1995), p. 205. 28 Opinion 1/91, supra note 13. 29 Sevón and Johansson, supra note 21, p. 381. See also Norberg, S., Hökborg, K., Johansson, M., Eliasson, D. and Dedichen, L. EEA Law. A Commentary on the EEA Agreement, Stockholm, Fritzes, 1993, p. 184. 30 Opinion 1/91, supra note 13, paras. 59−61. 31 On EFTA Court in general see, e.g., Sevón, L. ‘The EEA Judicial System and the Supreme Courts of the EFTA States’, European Journal of International Law, Volume 3, (1992), pp. 329-340; Baudenbacher, C. ‘The EFTA Court – An Example of the Judicialization of International Economic Law’, European Law Review, (2003), forthcoming. The reference by the EFTA Court to the homogeneity and uniform interpretation may be found, for example, in Restamark, Case No. E-1/94 189
Gaƺina Žukova Parties (i.e., the Community and EFTA States) and exercises its jurisdiction only within EFTA,32 thus its jurisdiction does not affect that of the ECJ.33 A procedure similar to that of Article 234 EC Treaty has been introduced by Article 34 of the ESA/EFTA Court Agreement.34 Namely, the EFTA Court can give advisory opinions on the interpretation of the EEA Agreement provisions.35 These opinions do not bind national courts, but as Baudenbacher points out, it can have certain advantages as well: ‘The fact that they [courts] are not threatened by the ‘sword of Damocles’ of a binding ruling imposed by a supranational court might encourage the national courts of EFTA States to refer legal problems’.36
As the practice already shows it, given that the EC Treaty and the EEA Agreement lay down different objectives, the interpretation by their judiciaries of similarly worded provisions may differ. Thus, in the Maglite case37 the EFTA Court ruled that the since the EEA Agreement does not establish a customs union but a free trade area, the EFTA States do not have a common commercial policy towards third States, therefore, they are free to conclude free trade agreements with other States and this is up to them to (1994), Reports of the EFTA Court 15, paras. 25, 32−35; Sveinbjörnsdóttir, Case No. E-9/97 (1998), Reports of the EFTA Court p. 95, paras. 49−56; Karl K.Karlsson hf v. the Icelandic State, Case No. E-4/01, judgment of 30 May 2002, para. 28. 32 Opinion 1/92, (1992), ECR I-2821, para. 19. 33 See, however, the Rechberger case, where the Court referred to the EFTA Court’s Sveinbjörnsdóttir decision ‘in view of the objective of uniform interpretation and application’, Walter Rechberger, Renate Greindl, Hermann Hofmeister and Others v. Republik Österreich, Case No. C-140/97 (1999), ECR I-3499, para. 39. On the need for the uniform interpretation and homogeneity in application of the EEA Agreement see also Opel Austria v. Council, Case No. T-115/94 (1997) ECR II-39; and Opinion of the AG Cosmas in Andersson, Case No. C-321/97 (1999), ECR I3551. 34 The procedure is further elaborated in Articles 96 and 97 of the EFTA Court’s Rules of Procedure. 35 Forman, J. ‘The EEA Agreement Five Years on: Dynamic Homogeneity in Practice and Its Implementation by the Two EEA Courts’, Common Market Law Review, Volume 36, (1999), p. 772. 36 Baudenbacher, C. ‘Between Homogeneity and Independence: the Legal Position of the EFTA Court in the European Economic Area’, Columbia Journal of European Law, (1997), p. 190. 37 Mag Instrument Inc. and California Trading Company Norway, Ulsteen, Case No. E-2/97, judgment of 3 December 1997.
190
Uniform Interpretation and Application of International Agreements in the European Union decide whether they adhere to the principle of international exhaustion of trade marks. The ECJ, however, in the six months later decided Silhouette case,38 where the similar issue was raised before that Court, ruled in favour of regional – read EEA – exhaustion of the trademark law. This is, the EFTA Court went much further in its decision in comparison with the restrictive interpretation of the Trademark Directive by the ECJ. According to the ECJ, this is up to the Community authorities to extend the limited rule of exhaustion by entering into international agreements. Meanwhile one can expect that one day the question involving clashes in the EFTA and EC Courts jurisprudence will come at stake. In the conclusion one more point has to be made. As a matter of fact, according to the EEA Agreement the EFTA States are bound only by those ECJ principles, which were established by the date of this Agreement’s signature. Given that the EU law does not stand at one place, whereas the end 1990s and the following years evidenced major changes (including draft text of the EU Constitution), there is a need in order to secure the homogeneity to bring amendments to the EEA Agreement as well, thus mirroring these changes. However, so far this has not been done. 4.2. EC-Turkey Customs Union Agreement Also within the EU-Turkey framework of legal relations, the rules of interpretation have found their place. Although they are not as highly elaborated as in the EEA Agreement, still, they may be said to be somewhere halfway between the EEA Agreement and the Europe Agreements. That is, the 1963 Turkish−EEC Association Agreement,39 which similar to the EAs set out an objective of Turkey’s future membership in the European Community, reads (Article 25): ‘1. The Contracting Parties may submit to the Council of Association any dispute relating to the application or interpretation of this Agreement which concerns the Community, a Member State . . . or Turkey.
38 Silhouette International Schmied GmbH & Co. KG v. Hartlauer Handelsgesellschaft mbH, Case No. C-355/96 (1998), ECR I-4799. See also Sebago Inc. and Ancienne Maison Dubois & Fils SA v. G-B Unic SA, Case No. C-173/98 (1999), ECR I-4103; Van Doren + Q.GmbH and Lifestyle sports + sportswear Handelsgesellschaft mbH, Michael Orth, Case No. C-244/00 (2003), ECR I-3051. 39 OJ C 113 1973, p. 2.
191
Gaƺina Žukova 2. The Council of Association may settle the dispute by decision; it may also decide to submit the dispute to the [ECJ] or to any other existing court or tribunal . . .’
Drastic change to this rule was brought by Decision 1/9540 of the EC−Turkey Association Council of 22 December 1995 ‘On implementing the final phase of the Customs Union’ (the so-called ‘Customs Union Agreement’). Under the last Article of this Agreement, Article 66 ‘Interpretation’, ‘The provisions of this Decision, in so far as they are identical in substance to the corresponding provisions of the Treaty establishing the European Community shall be interpreted for the purposes of their implementation and application to products covered by the Customs Union, in conformity with the relevant decisions of the [ECJ]’.
This last rule resembles very much Article 6 of the EEA Agreement, with the difference that in the Turkish case the referred ECJ case-law is one on the customs union, and, primarily, on free movement of goods, whereas in the EEA case this is the whole acquis relevant to the Internal Market (with exception of agriculture and fisheries). Another important difference is that, unlike under the EEA Agreement, Decision 1/95 makes the reference also to the future ECJ jurisprudence, which is delivered after the Decision’s entry into force. 4.3. Europe Association Agreements (1) General Provisions As it is known, the Europe Association Agreements were concluded by the ECs and its Member States and countries of Central and Eastern Europe in the beginning and mid-1990s, and they are the main legal tool for integration of these countries to the EU. Given the fact that the clauses that are subject to analysis below are nearly identical in all of these agreements, for the sake of convenience the reference will be made only to one of them, the Latvian EA.41 There is only one clause relevant to the interpretation in the EAs. Thus, Article 113 of the Latvian EA reads:
40 41
OJ L 35 1996, p. 1. OJ L 26 1998, p. 3.
192
Uniform Interpretation and Application of International Agreements in the European Union ‘1. Each of the two Parties may refer to the Association Council any dispute relating to the application or interpretation of this Agreement’. 2. The Association Council may settle the dispute by means of a decision . . .’
The same clause may also be found in the earlier Free Trade Agreements between the Parties (see, for example, Article 39 of the 1994 EC−Latvia FTA42), with the sole difference that the institutional body by that time was not the Association Council but the Joint Committee. The reference to the Agreement’s interpretation is also made in the Fisheries Agreements concluded by the EC with some of the CEECs (see, for example, Article 10(2) of the 1993 EC-Latvia Fisheries Agreement43). Such a poor language of the EAs’ clauses on interpretation is in sharp contrast with what is provided to this end, first and foremost, by the EEA Agreement, and, secondly, by the Turkish Customs Union Agreement. However, no use has been made of the EEA Agreement or the EC−Turkey Customs Agreement practice with regard to the EAs: they follow the old Association Agreements’ path, and not highly elaborated clauses on interpretation of the EEA Agreement. (2) Institutional Involvement in Uniform Interpretation One can speak about three possible kinds of actors involved in the process of Agreements’ interpretation. These are joint bodies, the judiciary and the national civil service. In relation to joint bodies, the EAs use generalised language to define the functions of those.44 The Agreements provide (see, for example, Article 113 of the Latvian EA) that each Contracting Party can refer to the Association Council45 any dispute46 relating to the application or 42
OJ L 374 1994, p. 1. OJ L 56 1993, p. 5. 44 Evans, A. and Falk, P. Transformation and Integration. The New Association Agreements, Centre for European Community Law and International Trade Law, Business School, University of Umeå, Sweden, 1992, p. 331. On institutional set-up under the EAs see Evans, supra note 25, pp.294-301; Evans, A., Part III-Ch.28 ‘Institutions’ in Ott and Inglis, supra note 6, pp. 1043−1078. 45 See also Article 110 of the Latvian EA and Decision No 1/98 of the EC-Latvia Association Council of 23 February 1998 adopting its rules of procedure, OJ L 73 1998, p. 31. On role of the Association Councils see, e.g., Horovitz, D. ‘The Impeding ‘Second Generation’ Agreements between the European Community and 43
193
Gaƺina Žukova interpretation of the Agreement, and the latter settles it by means of decision. The Decisions within the Association Councils are to be achieved by an agreement between the Parties. Though, as one can imagine, it is difficult to agree on safeguards or anti-dumping measures. Accordingly, the weaker Party will always be in a position to bend to the stronger Party’s will.47 The lack of the necessary instruments that would ensure the uniform interpretation of law applicable between the Parties was openly recognised by the ECJ in the Polydor case,48 ruling on the EC Agreement with nonMember Portugal: ‘20. In the present Case such a distinction is all the more necessary inasmuch as the instruments which the Community has at its disposal in order to achieve the uniform application of Community law and the progressive abolition of legislative disparities within the common market have no equivalent in the context of the relations between the Community and Portugal’.
The institutional structure provided by the EAs has not changed much since the Polydor ruling.49 Thus, the argument still remains valid that the Association Councils are not a forum where the Parties can seek an Eastern Europe – Some Practical Considerations’ in Snyder, F. (ed.) European Community Law¸ Volume II, Dartmouth, New York University Press, 1993, pp. 397−400. 46 On dispute settlement under the EAs see Maresceau, M. and Montaguti, E. ‘The Relations Between the European Union and Central and Eastern Europe: A Legal Appraisal’, Common Market Law Review, Volume 32, (1995), pp. 1358-1362; Van Den Hende, L. ‘EU Safeguard Measures under the Europe Agreements: The NonSettlement of Trade Disputes’ in Maresceau, M. (ed.) Enlarging the European Union, London, Longman, 1997, pp. 154−158. 47 E.g., Latvian swine meat case (1999/2000), where Latvia had to abolish her safeguards measures on imported swine meat due to the pressure from the European Commission. Apparently, it was argued that European swine meat producers suffered ‘substantial losses’ due to the measures introduced by the Latvian government. See also Evans, A., Part III-Ch.28 ‘Institutions’ in Ott and Inglis, supra note 6, pp. 1053, 1058. 48 Polydor Ltd and RSO Records Inc. v. Harlequin Records Shops Ltd. and Simons Records Ltd, Case No. 270/80 (1982), ECR 329. 49 Agreement between the EEC and the Portuguese Republic, OJ L 301 1972, p. 165, established a Joint Committee between the Parties, Article 32. See also Cremona, M. ‘Flexible Models: External Policy and the European Economic Constitution’ in De Búrca, G. and Scott, J. (eds.) Constitutional Change in the EU. From Uniformity to Flexibility?, Oxford – Portland Oregon, Hart Publishing, 2000, pp. 92−93.
194
Uniform Interpretation and Application of International Agreements in the European Union agreement on a uniform interpretation of the disputable EAs’ clauses, and, apart from that, there is no (involvement of) a judicial body which would be charged with such a task (see below). Overall, the Association Councils remain a ‘rubber stamp’50 rather than a truly democratic dispute settlement body. The vagaries of political choices still remain the main mechanism for interpretation while interpreting applicable law between the Parties. All this goes against what was provided by the EEA Agreement, where the Joint Committee and the EFTA Court are endowed with clearly defined duties concerning the maintenance of the uniform interpretation. In case no decision has been reached within the Association Council, either Party may call for arbitration (Article 113 (4) of the Latvian EA). However, there is still little chance of dispute resolution. In fact, the hearing is supposed to be conducted by three arbitrators, the first one being appointed by a candidate State, the second one by the Community and the last one by the Association Council, which can theoretically block this appointment by non-agreement on candidate between the Communities and a candidate State. Another stumbling block on the way to dispute settlement between the Parties is that no deadlines and time limits for dispute resolution are provided whatsoever by the EAs. However, as practice of a decade-long life of the EAs shows, the candidate States were very unwilling to use these unfriendly means of dispute settlement51 − there is no point in harming their relations with the Union to which they seek accession.52 While the judicial bodies are one of the main actors responsible for the correct implementation and application of the EEA Agreement, they are not even mentioned in the EAs.53 By ruling out any option of establishment of a 50
Marceau, G. ‘The Full Potential of the Europe Agreement: Private Positive Comity, Direct Effect and New Blanacing within Public Interest Clauses’ in Estrin, S. and Holmes, P. (eds.) Competition and Economic Integration in Europe, Cheltenham, UK, Northampton, MA, USA, Edward Elgar, 1998, p. 65. See also Bronckers, M. and McNelis, N. ‘The EU Trade Barriers Regulation Comes of Age’, Journal of World Trade, Volume 35, No.4, (2001), p. 434; Evans and Falk, supra note 44, p. 214. 51 However, the Ukraine, under her PCA with the ECs, blocked the appointment of its arbitrator in a case concerning laws on automobile production promotion, COM (1999) 390. 52 Van Den Hende, supra note 46, p. 150. 53 See also Bernitz, where he criticises dispute settlement system under the old ECEFTA States FTAs: ‘The most severe point is, in my opinion, the absence of any judicial system for the resolution of disputes between the Community and the EFTA 195
Gaƺina Žukova parallel judicial system (similar to the EFTA Court) between the ECs and the candidate state(s), the Community, most probably, tried very much to prevent clashes in two courts’ jurisprudence.54 Also, no role was assigned by the EAs to the CEECs national judiciaries; even more – they are not mentioned at all. Of course, one can argue that, first, CEEC judges have weak knowledge and no practice in applying the EU law,55 and, second, that this is an internal matter for each national legal system. Nonetheless, maybe one of the solutions here would be to assign a special role to the Constitutional and/or Supreme Courts of the candidate States, where they would take a responsibility for interpreting EAs provisions when the need would arise.56 On the whole, such an exclusion of the CEEC national courts is very regrettable since by means of their involvement the EU could only win domestic support and legitimacy and legitimisation of EU law.57 Moreover, the ECJ case-law as such is not among those acquis constituencies which the CEECs and their national courts have to take into account while implementing EU acquis and ruling on issues falling within the EAs’ ambit.58 This finding is further supported by the fact that there are
countries. It is hardly in line with European legal culture of today to exclude any kind of such system in international agreements of this magnitude’, Bernitz, U. ‘The Status of the Free Trade Agreements: New Developments from the Nordic Countries?’ in Jacot-Guillarmod, O. (ed.) L’avenir du libre-échange en Europe: vers un Espace économique européen?, Zurich: Schulthess Polygraphischer; Bern: Stämpfli, 1990, p. 153. As it is shown, the Community nonetheless continues to apply the same practice to other partners. 54 Opinion 1/91, supra note 13, paras. 40−45. See also Evans and Falk, supra note 44, p. 201. 55 Maresceau and Montaguti, supra note 46, p. 1358; Varnay, E. ‘Aspect institutionnel des relations entre l’Union européenne et la Hongrie’, in Daillier, P. et Kovacs, P. (eds.) Perspectives d’intégration des pays d’Europe centrale et orientale aux institutions de l’Europe occidentale, Paris, Montchrestien, 1998, p. 266. 56 Although, Jacot-Guillarmod was quite sceptical about the worthiness of such a solution for the EC-EFTA FTAs, see Jacot-Guillarmod, O. ‘How Far Should the Cassis de Dijon Principle Developed in the Case-Law of the Court of Justice Be Introduced into EC-EFTA Relations’ in Robinsons, M. and Findlater, J. (eds.) Creating a European Economic Space: Legal Aspects of EC-EFTA Relations, Dublin Centre for European Law, 1990, p. 201. 57 Hilf, M. ‘The Role of National Courts in International Trade Relations’, Michigan Journal of International Law, Volume 18, No. 2, (1997), p. 326. 58 The only exception to this rule are rules on competition, see, e.g., Article 64(2) of the Latvian EA. This Article, apart from referring to precise clauses of the EC
196
Uniform Interpretation and Application of International Agreements in the European Union express references in the EEA Agreement (Article 6) and in the Turkish Customs Union Agreement (Article 66) to the obligation of interpretation of the similarly worded provisions with the EC Treaty in line with the ECJ’s case law. Such a reference is obviously missing in the text of the EAs. Besides, under the EAs there is no more possibility for the Association Councils, arbitrations and CEECs national courts (whether Constitutional and/or Supreme Courts) to address the ECJ on interpretation of the disputed EA clauses worded identically or similarly to the EC Treaty provisions (similar to the preliminary ruling procedure under Article 234 EC Treaty), which is in contrast to the EC−Turkey Association Agreement (Article 25 (2)) or the EEA Agreement (Article 111 (3)). As a result, homogeneity is not secured while adjusting the CEECs legal orders to that of the EU. Also, the interpretations delivered by the ECJ on EAs’ provisions are not binding on the accession countries. While it seems to be a completely logical conclusion, it is possible to look at the problem from another point of view. That is, what would happen if, instead, the EAs59 would admit ECJ interpretations as binding also with regard to the CEECs? In such a case the Community would have bound itself by legal criteria of the CEECs’ readiness for accession to the EU, whereas the whole enlargement is much more about politics rather than law. From another side, taking into account the fact that the integration process is (presumably) driven by the CEECs, it is primarily in their interests to follow the interpretations given by the ECJ.60 Treaty, also refers to the ‘secondary legislation’ of the Community, thereby including the ECJ case-law. 59 In this case it would be more correctly to read it as ‘EAs’ negotiators from the EU side. 60 See also Levits, E. ‘The Latvian and European Union Association Agreement and the Transformation of the Latvian Legal Systems’ in Jundzis, T. (ed.) The Baltic States at Historical Crossroads, 2nd ed., RƯga, Latvian Academy of Sciences, 2001, p. 186: ‘ . . . if Latvia’s practices are to be changed, civil servants and judges must learn about and come to understand the principles of human rights and rule of law which have been accepted in the European Union. The most difficult task for civil servants is to interpret the judicial norms in a legally correct way (especially using all available methods of interpretation and observing the judicial range of legal norms), to use the discretionary powers and justify and give reasons in writing for their decisions correctly’; àazowski, A., Part III − Ch.8 ‘Approximation of Laws’ in Ott and Inglis, supra note 6, p. 637: ‘It will be appreciable if domestic courts, when preparing judgment, take into account the relevant provisions of EC law as well as the jurisprudence of the ECJ’. See also Hillion, C. ‘Cases C-63/99 Secretary of State 197
Gaƺina Žukova Moreover, the interpretation of national laws in the candidate countries must be carried out in such a way as to pay due account to these countries’ main objective of joining the EU. This also follows from Article 123 (1) of the Latvian EA: ‘The Parties shall take any general or specific measures required to fulfil their obligations under this Agreement. They shall see to it that the objectives set out in this Agreement are attained’. That is, one can speak here about ‘pro-European interpretation of law’.61
However, as àazowski clarifies, ‘this method can only have a subsidiary character and that it should not be used to avoid legislative difficulties’.62 Interestingly enough, this provision (Article 123 (1) of the Latvian EA) is identical to one contained in Article 1063 EC Treaty, which has been used by the ECJ to impose an obligation of ensuring concepts on supremacy and direct effect on national courts. As a result, there is a considerable gap between fostering and promotion of the uniform and homogeneous interpretation of the EAs, which leads to divergent views arriving on the same point from both sides’ judiciaries.64 One of the remedies for such a situation would be to introduce the system of exchange of information between the ECJ, on one side, and CEECs’ (Constitutional and/or Supreme) courts, on the other, on any dispute involving EAs’ interpretations. In such a way the CEECs’ courts could start to be gradually involved in the process of ‘education’ of EU law. Such a for the Home Department ex parte Wieslaw Gloszczuk and Elzbieta Gloszczuk; C235/99 Secretary of State for the Home Department ex parte Eleanora Ivanova Kondova; C-257/99 Secretary of State for the Home Department ex parte Julius Barkoci and Marcel Malik; judgments of the Full Court of 27 September 2001; Case C-268/99 Aldona Malgorzata Jany e.a v. Staatssecretaris van Justitie, judgment of the Full Court of 20 November 2001; Case C-162/00 Land Nordrhein-Westfalen v. Beata Pokrzeptowicz-Meyer, judgment of the Full Court of 29 January 2002’, Common Market Law Review, Volume 40, (2003), p. 486. 61 àazowski, A.., Part III-Ch.8 ‘Approximation of Laws’ in Ott and Inglis, supra note 6, pp. 635, 636. 62 Ibid., p. 636. 63 It reads: ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out from this Treaty […]. They shall abstain from any measures which could jeopardise the attainment of the objectives of this Treaty’. 64 See Van den Bossche, A.M. ‘The International Dimension of E.C. Competition Law: The Case of the Europe Agreement’, European Competition Law Review, Volume 18, Issue 1, (1997), p. 29.
198
Uniform Interpretation and Application of International Agreements in the European Union system was set up already by the EEA Agreement, and is one of the tools to secure the uniform interpretation of the Lugano and Brussels Conventions (see above). Contrary to this, CEEC court decisions involving the EAs interpretations still remain hardly available outside their States’ confines. Apart from this, the Parties to the EAs could be granted intervention rights in proceedings before the courts in cases where the Association Agreements are at stake − a right to submit their observations − thus guaranteeing the development of legal homogeneity within the EU and the candidate States. However, nothing like this was envisaged by the Europe Agreements. Of course, the political sensitivity of the Parties’ judicial institutions cannot and could not be disregarded. However, the price paid in order not to abuse this sensitivity is a lack of any effective means that would secure uniform interpretation of the EAs clauses throughout the State signatories to them. Consequent involvement of the CEECs’ judiciary in the process of interpretation and application of EU law will happen only upon CEECs’ accession to the EU. In the meantime it is the national civil service which implements and interprets the EAs, and in case any problem arises, the dispute becomes a subject to a political discretion within the Association Council’s framework, rather than being solved by a strict application of the rule of law.65 (3) Alternative Dispute Settlement Forum A logical question may be raised: whether the Parties may have recourse to other dispute settlement bodies apart from the Association Council and the arbitration? As far as trade disputes are concerned, there is a possibility to bring the case before the WTO Dispute Settlement Body.66 However, the CEECs, signatories to the EAs, ‘. . . cannot bring a claim before the GATT/WTO forum on grounds only available under the Europe Agreement. [CEECs] can, however, bring a GATT/WTO claim against the EC to secure
65
See, e.g., Horovitz, supra note 45, p. 400: ‘The need to ensure adequate and unbiased solutions to disputes of a legal character is paramount in circumstances of this nature’. 66 See also, EU-Mexico Economic Partnership, Political Co-ordination and Cooperation Agreement, OJ L 276 2000 p. 45, where Article 50 ‘Dispute settlement’ reads that the Joint Council shall decide on the establishment of a specific trade or trade related dispute settlement procedure compatible with the relevant WTO provisions in this field. 199
Gaƺina Žukova [their] GATT/WTO rights . . . the associated countries do retain this possibility’.67
That is, the Parties to the EAs are left with the option of bringing a claim about violation of trade practices to the WTO. However, given the political realities, this is highly unlikely. (4) New Developments in the EU Dispute Settlement with Third States According to the Partnership and Cooperation Agreements (PCAs) concluded by the European Communities with, for example, Russia68 and Ukraine,69 the dispute settlement procedure thereof very much resembles one provided by the EAs. The remaining differences in the institutional set-up are mostly of a technical character. These differences entail, first, the dispute resolution on the part of the Cooperation Council by a recommendation instead of a decision; second, the possible resort to the conciliation – as opposed to arbitration – procedure; and, third, such conciliators’ recommendations are not of binding character, as opposed to the obligatory implementation under the EAs. The low effectiveness of the dispute settlement system was recognised by the EU in relation to these PCAs. The Commission considered the ‘clear and efficient rules of procedures for the settlement of disputes to be an essential element in providing security and predictability to the bilateral framework established by the Partnership and Cooperation Agreement’.70 As a result, new rules of procedure for dispute settlement within the PCAs were designed between the Parties. Thus, Article 2 ‘Consultation’ of these draft rules of procedure71 provides: ‘1. The Parties shall at all times endeavour to agree on the interpretation and application of the Partnership and Co-operation Agreement and shall make every attempt through co-operation and
67
Van Den Hende, supra note 46, p. 157. See also Bronckers, M. and McNelis, N. ‘The EU Trade Barriers Regulation Comes of Age’, Journal of World Trade, Volume 35, No.4, (2001), p. 434. 68 OJ L 327 1997, p. 3. 69 OJ L 49 1998, p. 3. 70 Internal Commission document, (copy on file with the author). 71 Proposal for a Council Decision On the Community position to be adopted in the Cooperation Council established by the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, in relation to the establishment of rules of procedure for the settlement of disputes under that Agreement, COM (2003) 13, Brussels, 17 January 2003.
200
Uniform Interpretation and Application of International Agreements in the European Union consultations to arrive to a mutually satisfactory resolution of any matter that might affect its functioning. 2. Each of the Parties may refer to the Co-operation Committee any dispute relating to the application or interpretation of the Partnership and Co-operation Agreement by requesting consultations . . . ’
The model rules of procedure, attached to the text of the proposed rules, further spell out in paragraph 34 ‘Rules of interpretation and burden of proof’ that the conciliation panels (under the EAs these are arbitrations) have to interpret the PCA provisions in accordance with rules of customary international public law. This is a clear reference to the Vienna Convention on the Law of Treaties. 5. Conclusions Legal certainty may be secured only where there is a homogeneity and uniformity in interpretation and application of the legal norms by the judiciaries of the Parties to the international treaties. It was demonstrated that within the EU legal order such a need was recognised, and, consequently, institutionalised by means of a preliminary ruling procedure. As regards the international agreements to which Community makes a party, the situation is slightly controversial. The EEA Agreement puts a strong emphasis on homogeneity, whereas the EFTA Court helps to ensure it within the EFTA States (not the EEA States). Under the EU-Turkey institutional set-up one of the main objectives of the Parties is to achieve a uniform interpretation of the whole Customs Union-related acquis. The Europe Agreements contain no provision whatsoever as regards homogeneity and uniformity. Vaguely defined duties of the Association Councils in the interpretation of the Agreements’ provisions, belittling the role of the judiciary in the whole interpretation and application process, and omission of the provision prescribing the adoption of the case law of the ECJ are all factors that create favourable conditions for the flourishing of legal uncertainty in the CEECs well before their actual accession to the Union. As a result, the narrow functions of the joined bodies do not correspond to the limits imposed on the CEECs by the Agreements and to the freedom the Community enjoys in carrying out the obligations that arise from the texts of the Agreements. In this sense the Community could act more generously by conferring a stronger integration role on the Association Councils and CEECs’ judiciaries. That is, although it is obviously too late to change any 201
Gaƺina Žukova part of the interpretation rules laid down by the EAs due to the candidate States’ imminent accession to the EU, it is important to see that the EU admits the ineffectiveness of its standard set of interpretation and dispute settlement clauses and is open for their re-negotiation with interested parties, − as the case with proposed rules of procedure under the Russian PCA shows it. Of help to the EU partners may be only a principle of ‘bona fide’ performance of treaties in public international law,72 according to which good will must prevail in the selection of measures which the Parties intend to take, and that priority must be given to those measures which minimise disturbances in the functioning of the treaty. As Hende writes with regard to the Europe Agreements: ‘It is quite natural for two parties to an agreement to have a difference of opinion on the interpretation of a clause. But in a good relationship the correct interpretation should eventually prevail, not the interpretation of the strongest party. In its bare essence this comes down to respect for the rule of law by the stronger partner, as opposed to what has been called ’power-based resolution of disputes’. It would be unacceptable that an associated country, standing up for the rights it has been granted under the Europe Agreements, should be punished for that by not being granted new or other rights. Such action by the EC would disregard the rule of law it urges the CEECs to respect. It would also deny the association framework an element that has proved to be a fundamental building-block of the Community’s success’. 73
The question remains – whether it is always so in practice.
72
On interpretation of this principle by the ECJ see Portugal v. Council, Case No. C-149/96 (1999), ECR I-8395, para. 35; Hauptzollamt Mainz v. C.A. Kupferberg, Case No. 104/81, supra note 8, para. 18. 73 Van Den Hende, supra note 46, p. 155.
202
History of International Law in the Baltic States The present article was prepared and submitted for publication in the Baltic Yearbook of International Law by Professor Dr. Dr. h. c. Dietrich A. Loeber member of the Editorial Board.
The Latvian – Soviet Russian Peace Treaty of 1920 and its Implementation* Rudolf von Freymann**
Contents 1. Persons Eligible to Opt for Latvia 2. Property Rights of Persons Opting for Latvia 3. Deadlines for Emigration to Latvia Annex 1: Treaty of Peace between Latvia and Russia, done at Moscow, completed and signed at Riga, August 11, 1920 About the author On 11 August 1920, the young Latvian Republic, which had been constituted as an independent and sovereign State as early as 18 November 1918, concluded a Peace Treaty with the Russian Socialist Federal Soviet Republic. The Treaty was ratified by Latvia on 2 September, and by Russia on 4 October 1920. The Latvian war refugees and those who had opted to return to their homeland from Russia were thoroughly harassed by the Soviet government, in that the relevant provisions of the Peace Treaty were interpreted in a way most unfavourable to the rights of those opting to return.
* Excerpts translated from Rudolf von Freymann, ‘Der lettländisch-russiscge Friedensvertrag und seine Verwirklichung’ in Riga Zeitschrift für Rechtswissenschaft Vol. 1 (1926/27) pp. 1–34 (1, 12–17). Subtitles added. Reprinted in Hamburg 1990. ** The author served as legal officer of the Legation of Latvia in Moscow 1922– 1925.
203
Rudolf von Freymann 1. Persons Eligible to Opt for Latvia The unfortunate wording of Article VIII of the Peace Treaty afforded the Soviet Government a welcome opportunity to retain educated persons that it needed from the ranks of those Russian citizens who were of Baltic origin. According to the wording of Article VIII, those Balts are eligible to opt for their homeland who themselves – or their parents – have been ‘registered on or before 1 August 1914’ at one of the municipal or rural communes situated on the territory of present-day Latvia. In what was Livonia and Courland, lists indicating one’s affiliation were kept: for noblemen (known as the nobles’ registers), for merchants and craftsmen registered in guilds, for the so-called petite bourgeoisie or ‘okladists’ and for members of rural communities, the farmers. In addition to these various groups there existed in the former Baltic provinces a numerous class of so-called ‘exempts’, i.e. of persons freed from paying a per capita tax, who for exactly this reason – and as long as they did not belong to one of the groups mentioned above – were not registered anywhere as a special social group. To this group belonged most of the men of letters: scholars, journalists, teachers, doctors, lawyers, architects, preachers, and other persons practicing liberal professions. All of these persons, even though they originated undeniably from areas belonging to current-day Latvia, and even though many came from families that had resided in the country for centuries, found the return to their home blocked as a result of the Soviet government’s strict interpretation of the wording of Article VIII. 2. Property Rights of Persons Opting for Latvia The extent of the property rights for those opting for Latvia is regulated primarily in the fifth paragraph of Article VIII of the Peace Treaty. It determines that those opting, along with those sharing their citizenship (wife and children), are entitled to retain their rights relating to their moveable and real property in accordance with the laws in effect in their country of residence and, in the event that they should move, are entitled to either liquidate or take their property with them. The Latvian Legation interceded in support of those opting for emigration by insisting that their possessions be subject to the law as it existed on 11 August 1920, or at the time the option was declared, and that no limitation of their rights be allowed as a result of subsequent legislative acts or administrative decreed. The Soviet government, however, insisted that the fact of exercising the right of option or registration as a refugee in no way altered the property rights of these persons and that they were in no way 204
The Latvian – Soviet Russian Peace Treaty of 1920 and its Implementation exempted from the effect of general legislation of the Soviet Republic. Thus all of the various means of dispossession private property were brought in the most extensive manner possible against those opting for emigration to Latvia. 3. Deadlines for Emigration to Latvia Neither the Latvian-Russian Peace Treaty not the Convention on Options spoke of an obligation on the part of those opting for emigration to leave Russia by a specifically determined deadline. Without obtaining the consent of the Latvian government and without even informing the Latvian authorities, the Soviet government issued an order on 17 March 1923 in Moscow, and on 24 March 1923 in Petersburg, which required all those opting for Latvia to report for registration to their places of residence.1 During this registration the option certificates, which served as residence certificates and identification documents without prior warning, were dressed with a stamp according to which the holder of the document was obligated to leave Russia by a set date (from six months up to one year later). Those who did not comply were declared to have forfeited their option rights – i.e. their Latvian citizenship rights – and could be treated from then on again as citizens of Soviet Russia. Annex 1 Treaty of Peace between Latvia and Russia, done at Moscow, completed and signed at Riga, August 11, 1920* Article 8. Persons residing, on the day of the ratification of the Treaty within the frontiers of Latvia, and likewise refugees residing in Russia who were registered, or whose parents were registered, before August 1st, 1914, in urban, rural or corporate societies, in the territory now forming the State of Latvia, are recognised as Latvian citizens.
1
Moscow’s ‘Izvestiia VTsK’ of March 17, No. 59, and ‘Vestnik Petrosoveta’ of 24 March 1923, No. 23. * English translation: Société des Nations. Recueil des Traités, No. 67 (Vol. 2, 192021), pp. 213–229. 205
Rudolf von Freymann Persons of the same category residing at the moment of ratification of this present Treaty within the frontiers of Russia, with the exception of the refugees above-mentioned, are recognised as Russian subjects. Nevertheless, any person of the age of 18 years and above, residing in Latvian territory, has the rights during one year, dating from the day if the ratification of the present Treaty to declare that he does not desire to retain his Latvian nationality and to opt in favour of Russia; and in this case children of less than 18 years of age and wives acquire the latter nationality, unless an agreement to the contrary has been concluded between the married couple. Likewise, Russian citizens can, under the terms of the second paragraph of this clause, during the same period of time and under the same conditions, opt for the status of Latvian citizens. Those who have made a declaration of option, and likewise those of their family to whom the nationality is transmitted, retain their rights to their movable property and real estate within the limits of the laws in force in the State which they inhabit, and in case of departure they have the right to liquidate or carry away whatever belongs to them. NOTE (1). Persons living at the time of the ratification of this Treaty in the territory of a third State, who are not naturalised and who fall within the provisions of the first paragraph of this article, are also recognised as citizens of Latvia, but preserve the right, under the conditions laid down, of opting for Russian nationality. NOTE (2). Person who, before or during the world-war of 1914−1917, were living in the territory of one of the Parties, and who at the time of ratification of this Treaty are living in the territory of the other Party, shall also enjoy the rights granted under this Article to persons exercising the right of option. Refugees who may have been able to remove their property in virtue of the Agreement of June 12, 1920, regarding the repatriation of refugees, shall enjoy the rights laid down in the Article dealing with optors, subject to proof that such property belongs to them, and was actually in their possession at the time of repatriation. NOTE (3). Each of the two Contracting Parties shall grant to citizens of the other Party, in the same way as to optants, permission and facilities for returning freely to their own country, and generally for leaving the territory of the State of the other Party. In the same way, each of the two Contracting Parties undertakes to demobilise the citizens of the other Party immediately after the ratification of the present Treaty.
206
The Latvian – Soviet Russian Peace Treaty of 1920 and its Implementation About the author Rudolf von Freymann (1860−1934), after graduating from the Law Faculty of the University of Dorpat (now Tartu), served in the Ministry of Justice of pre-revolutionary Russia in St. Petersburg. For many years he headed the Chancellery for petitions addressed to the Emperor of Russia. In 1914 he was appointed Senator of the Senate, the highest judicial institution in the country. After the 1917 revolution, Rudolf von Freymann became the legal Officer of the Legation of Latvia in Moscow, but in 1925 he started a law practice in Riga, Latvia. He was also active as an author in legal science and edited the law journal Rigasche Zeitschrift für Rechtswissenschaft. Bibliographical sources: Deutschbaltisches biographisches Lexikon 1710−1960, Köln, Wien, 1970, p. 226; Album Livonorum (Lübeck) 1972, p. 291; obituaries: Berent B., Zakon in sud (Riga), vol. 5 (1934) col. 1627−1628; Carl von Schilling, Rigasche Zeitschrift für Rechtswissenschaft. Vol. 8 (1934/35) pp. 73−75; Latvis (Riga), 19 July 1934, p. 5; Rigasche Rundschau, 12 July 1934, p. 7; reprinted in Rudolf von Freymann, Der lettländisch-russische Friedensvertrag und seine Verwirklichung, Nachdruck, Hamburg, 1990, pp. 163−171. In excerpts above Rudolf von Freymann draws on his experience as a Legal Officer in the Legation of Latvia in Moscow.
207
Republic of Latvia Materials on International Law 2003 Edited by MƗrtiƼš Paparinskis* [Editorial Notes: 1. Republic of Latvia Materials on International Law 2003 (RLMIL) have been classified according to the Recommendation (97) 11 of 12 June 1997 of the Committee of Ministers of Council of Europe, as applied by the British Yearbook of International Law from the year 1997. 2. Since the RLMIL mostly concern the opinions made by the institutions and officials of Latvia, in case it has not been expressly provided for otherwise, the institutions and officials mentioned in the RLMIL are from the Republic of Latvia. 3. At the outset it can be said that most materials of RLMIL 2003 concern two matters of international law: firstly, the European Convention and the Draft Constitutional Treaty, and secondly, the legality of use of force against Iraq. The material parts of the comments and observations of the United Nations treaty monitoring bodies that were made during the year 2003 have also been reproduced. Another point to be stressed is that after serious consideration the decision was made not to include the judgments of Latvian courts in Kononov, Larionov and Tess cases in the RLMIL. Although these judgments include pronouncements on international criminal law and state continuity matters, they suffer from errors in understanding the basics of international law; therefore cannot be considered as expressing the opinion of Latvia on these matters.]
*
Stud. iur., University of Latvia, Associate at Sorainen Law Offices. 209
Republic of Latvia Materials on
INDEX Part One: International Law in general I. Nature, basis, purpose A. In general B. Jus cogens (see part Three: II. C. 3/6 below, part Sixteen: I. 16/1 below) C. Soft law II. History Part Two: Sources and Codification of International Law I. Sources of international law A. Treaties B. Custom C. General principles of law D. Unilateral acts (including acts and decisions of international organisations and conferences) (see part Three: VIII. 3/7 below) E. Judicial decisions F. Opinions of writers G. Equity H. Comity II. Acquisition, preservation and loss of rights III. Codification and progressive development of international law Part Three: The Law of Treaties I. Definition, conclusion and entry into force of treaties A. Definition B. Conclusion, including signature, ratification, and accession C. Reservations, declarations and objections D. Provisional application, and entry into force (see part Three: I. B. 3/1, 3/3 above) II. Observance, application and interpretation of treaties A. Observance B. Application C. Interpretation D. Treaties and third States III. Amendment and modification, derogation IV. Invalidity, termination and suspension of the operation A. General rules B. Invalidity C. Termination and suspension of operation, denunciation, and withdrawal 210
International Law 2003 D. Procedure E. Consequences of invalidity, termination or suspension of operation V. State succession in respect of treaties VI. Depositaries, notifications, corrections, and registration VII. Consensual arrangements other than treaties Part Four: Relationship between International Law and Internal Law I. General II. Application and implementation of international law in internal law A. Treaties B. Custom (see part Four: II. A. 4/1 above) C. Sources other than treaty and custom (see part Four: II. A. 4/1 above) III. Remedies under internal law for violations of international law IV. Non-justiciability, including public interest immunity Part Five: Subjects of International Law I. States A. Status and powers 1. Personality 2. Sovereignty and independence 3. Territorial integrity 4. Non-intervention in domestic jurisdiction 5. Equality of States 6. State immunity 7. Treaty-making power 8. Powers other than treaty making B. Recognition 1. Acts of recognition a) Recognition of States b) Recognition of governments 2. Effects of recognition 3. Withdrawal of recognition 4. Non-recognition (including non-recognition of governments) and its effects C. Types of States 1. Unitary states 2. Personal and real unions 3. Federal States and confederations 4. Protected states 5. The Holy See 211
Republic of Latvia Materials on D. Formation, identity, continuity, extinction and succession of States 1. Conditions for statehood (see part Five: I. A. 2, 5/1 above) 2. Formation 3. Identity and continuity 4. Extinction 5. Succession (a) Situations of state succession (i) Union with or without the demise of the predecessor state (ii) Dismemberment (iii) Separation (iv) Newly independent States (b) Effects of State succession (i) Territory and other areas under national jurisdiction (ii) Nationality (iii) Succession in respect of treaties (iv) Archives (v) Debts (vi) Property (vii) Responsibility (viii)Other rights and obligations II. International organisations A. General 1. Status and powers (a) Personality (b) Privileges and immunities of the organisation (c) Treaty-making power (d) Other powers 2. Participation of States and international organisations in international organisations and in their activities (a) Admission (b) Suspension, withdrawal, expulsion, and deportation (c) Obligations of membership (see part Four: II. A. 1. (d) 5/5 above) (d) Representation of States and international organisations to international organisations, including privileges and immunities 3. Legal effect of the acts of international organisations 4. Personnel and experts of international organisations, including privileges and immunities 5. Responsibility of international organisations 6. Succession of international organisations 212
International Law 2003 B. Particular types 1. Universal organisations 2. Regional organisations 3. Organisations constituting integrated (e.g. economic) communities 4. Other types III. Entities or groups other than States and international organisations A. Mandated and trust territories B. Overseas territories and dependencies C. Condominia D. Special regimes E. Self-determination units and the concept of self-determination F. Insurgents G. Belligerents F. Others (e.g. indigenous people, minorities, national liberation movements) Part Six: The Individual (including the Corporation) in International Law I. Nationality II. Diplomatic and consular protection III. Aliens IV. Members of minorities (see part Six: VIII. B. 6/6 below) V. Stateless persons VI. Refugees VII. Immigration and emigration, extradition, expulsion, asylum A. Immigration and emigration B. Extradition C. Expulsion D. Asylum 1. Territorial asylum (see Part Six: VI. 6/3, 6/4 above) 2. Diplomatic asylum VIII. Human rights and fundamental freedoms A. General concept (see part Four: II. A. 4/5 above) B. Under United Nations treaty system (see part Four: II. A. 4/7 above, part Five: A. 1. (d) 5/5 above) C. Under Council of Europe treaty system (see part Four: II. A. 4/2-4, 4/6-8 above) D. Other aspects of human rights and fundamental freedoms (see part Four: II. A. 4/7 above, Part Five: II. B. 3. 5/15 above) IX. Responsibility of the individual
213
Republic of Latvia Materials on Part Seven: The State and its Organs I. The composition of the State A. Heads of State B. Ministers C. Governments D. Departments of the State E. Diplomatic missions and their members F. Consulates and their members G. Special missions H. Trade and information offices, trade delegations, etc. I. Armed forces, including visiting forces J. Police and security services II. Protecting powers III. State property IV. Privileges and immunities A. State immunity (including Head of State immunity) B. Diplomatic privileges and immunities C. Consular privileges and immunities D. Visiting forces E. Other privileges and immunities Part Eight: Jurisdiction of the State I. Bases of jurisdiction A. Territoriality B. Personality (active and passive) C. Protective principle D. Universality E. Other bases II. Types of jurisdiction A. Prescriptive B. Adjudicative C. Enforcement III. Extra-territorial exercise of jurisdiction A. General B. Consular jurisdiction C. Military and other personnel abroad D. Other exercises (e.g. artificial islands, terrae nullius) IV. Limitations upon jurisdiction (e.g. servitudes, leases) V. Concurrent jurisdiction Part Nine: State Territory I. Territory 214
International Law 2003 A. Elements of territory 1. Land, internal waters, lakes, rivers, and land-locked seas 2. Sub-soil 3. Territorial sea 4. Airspace B. Good neighbourliness II. Boundaries and frontiers A. Delimitation B. Demarcation C. Stability III. Territorial sovereignty A. General B. Acquisition and preservation C. Transfer and loss IV. Leased territory Part Ten: International Watercourses I. Rivers and lakes A. Definition B. Navigation C. Uses other than navigation D. Protection of the environment E. Institutional aspects II. Groundwaters III. Canals Part Eleven: Seas and Vessels I. Internal waters, including ports and harbours II. Territorial sea, including overflight III. Straits, including overflight IV. Archipelagic waters V. Contiguous zone VI. Exclusive economic zone VII. Continental shelf VIII. High seas A. Freedoms of the high seas, including overflight B. Visit and search C. Hot pursuit D. Piracy E. Conservation of living resources IX. Islands, rocks and low-tide elevations X. Enclosed and semi-enclosed seas 215
Republic of Latvia Materials on XI. International Seabed Area XII. Land-locked and geographically disadvantaged States XIII. Protection of the marine environment XIV. Marine scientific research XV. Cables and pipelines XVI. Artificial islands, installations, and structures XVII. Tunnels XVIII. Vessels A. Legal regime 1. Warships 2. Public vessels other than warships 3. Merchant vessels B. Nationality C. Jurisdiction over vessels 1. Flag State 2. Coastal State 3. Port State 4. Exercises of jurisdiction other than by flag, coastal, and port State Part Twelve: Air Space, Outer Space, and Antarctica I. Air space A. Status and limits B. Uses C. Legal regime of aircraft II. Outer space and celestial bodies A. Status and limits B. Uses C. Legal regime of spacecraft III. Antarctica A. Limits and status B. Uses C. Protection of the environment Part Thirteen: International Responsibility I. General concept (see part One: 2. 1/2 above) II. Responsibility other than criminal A. Responsible entities 1. States (a) The elements of responsibility (e.g. wrongfulness of the act, imputability) (see part One: 2. 1/2 above) (b) Factors excluding responsibility (e.g. self-defence, necessity, counter-measures) 216
International Law 2003 (c) Diplomatic and consular protection (d) Nationality of claims (e) Exhaustion of local remedies 2. States (a) International organisations (b) Entities other than international III. Criminal responsibility A. Definition of an international crime B. Responsible entities 1. States 2. Entities other States (e.g. individuals) IV. D. Consequences of responsibility A. Reparation B. Consequences other than reparation Part Fourteen: Peaceful Settlement of Disputes I. The concept of an international dispute II. Means of settlement A. Negotiations B. Good offices C. Enquiry (fact-finding) D. Mediation E. Conciliation F. Arbitration 1. Permanent Court of Arbitration 2. Arbitral tribunals and commissions other than the Permanent Court of Arbitration G. Judicial settlement 1. International Court of Justice 2. Courts and tribunals other than the International Court of Justice H. Settlement within international organisations 1. United Nations 2. Organisations other than the United Nations I. Other means of settlement III. Compensation arrangements Part Fifteen: Coercive Measures short of the Use of Force I. Unilateral measures A. Retorsion B. Counter-measures C. Pacific blockade D. Intervention E. Other unilateral measures II. Collective measures 217
Republic of Latvia Materials on A. United Nations B. Outside the United Nations Part Sixteen: Use of Force I. Prohibition of the use of force II. Self-defence III. Use of force under the UN Charter IV. Use of force other then self-defence and under the UN Charter (see part One: II. 1/2 above, part Two: III. 2/3 above, part Sixteen: III. 16/2-8 above) V. Disarmament and arms control (see part Sixteen: III. 16/2, 16/3, 16/5-9 above) Part Seventeen: the law of armed conflict and international humanitarian law I. International armed conflict A. Definition B. Commencement C. Distinction between combatants and non-combatants D. Belligerent occupation E. Termination, including armistices and treaties of peace II. Non-international armed conflict III. Aspects of the law of armed conflict A. Sources B. Rights and duties of participants 1. Land operations 2. Sea operations 3. Air operations C. Mercenaries D. Conventional weapons E. Nuclear, bacteriological and chemical weapons F. Protection of the individual (international humanitarian law) G. Protection of property H. Recognition of belligerency I. War crimes (see part One: II. 1/2 above) 8. Belligerent occupation 9. Conventional, nuclear, bacteriological and chemical weapons 10. Treaty relations between combatants (cartels, armistices, etc.) 11. Termination of international armed conflict, treaties of peace Part Eighteen: neutrality and non-belligerency I. The laws of neutrality A. Land operations B. Sea operations 218
International Law 2003 C. Air operations II. Permanent neutrality III. Neutrality in the light of the United Nations Charter IV. Policy of neutrality and non-alignment V. Non-belligerency Appendices I. Bilateral Agreements signed by Latvia in 2003 Part One: I. B. International Law – nature, basis, purpose – jus cogens (see 3/6, 16/1) Part One: II. International law in general – history 1/1 On 14 May 2003, in making an address at the closing of the LatvianPortuguese Economic Forum at Riga Stock Exchange, Dr. Vaira VƯƷeFreiberga, President of Latvia, observed: ‘The importance of economic cooperation between Latvia and Portugal was recognized as far back as the Middle Ages, when Portugal signed a trade agreement with the Duchy of Kurland, in what is now Western Latvia.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) 1/2 Judge of the European Court of Human Rights (ECtHR) Maruste in the judgment of Slivenko v. Latvia in his separate dissenting opinion elaborated on the legal aspects of the Soviet occupation of Latvia and the renewal of Latvia’s independence: ‘It is well known and recognised in international law that the Baltic States, including Latvia, lost their independence on the basis of the ‘Hitler-Stalin Pact’ between Nazi Germany and the USSR, which actually refers to the Molotov-Ribbentrop Pact, or the secret protocols that were appended to the non-aggression treaty between the Soviet Union and Germany, which was signed on 23 August 1939. The result of this secret agreement was that Eastern Europe was divided into two spheres of influence, leaving the Baltic States, including Latvia, in the Soviet Union’s sphere of interests. This was followed by Soviet threats of force in the form of an ultimatum addressed in 1940 to the Baltic States, including Latvia, in which the USSR demanded a change of government and the entry of Soviet armed forces (in
219
Republic of Latvia Materials on addition to those already stationed in Soviet military bases). The actual entry of military forces and the change of government took place in June 1940. According to Article 42 of the Hague Regulations on the Laws and Customs of War on Land, a territory is considered occupied ‘when it is actually placed under the authority of the hostile army’. By way of comparison, the Nuremberg Military Tribunal included the ultimatum delivered by Germany to Austria in 1938 among the acts to be judged as a ‘crimes against peace’ within the meaning of the 1945 London Charter. The above named actions by the Soviet Union were not recognised by a majority of the international democratic community, including the European Parliament and the Council of Europe. The latter for example expressed its attitude in Resolution no. 189 (1960) on the situation in the Baltic States, noting: ‘on the twentieth anniversary of the occupation and forcible incorporation into the Soviet Union of the three European states of Estonia, Latvia and Lithuania’ that ‘this illegal annexation took place without any genuine reference to the wishes of the people’. It has been an established principle in international law which now is fixed also in the ICC Statute (Article 8) that the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies is not allowed. Indeed, according to the same Article 8, it is a war crime. According to generally recognised principles of international law every internationally wrongful act of a State entails international responsibility and gives rise to the obligation of that State to restore the status quo ante. Consequently, the restoration of the independence of the Baltic States on the basis of legal continuity and the withdrawal of the Soviet-Russian troops has to be regarded as redress for an historical injustice.’
(Slivenko v. Latvia, no 48321/99, Judgment of 9 October 2003, Separate dissenting opinion of Judge Maruste). Part Two: I. C. Sources and codification of international law – sources of international law – equity 2/1 The Constitutional Court in the Judgment of 6 October 2003 in Case No.2003-08-01 ‘On the Compliance of Article 96 (the first sentence of the
220
International Law 2003 second part) of the Criminal Procedure Law of Latvia with Articles 89 and 92 of the Republic of Latvia Satversme (Constitution)’ observed: ‘The aim of the legislator, when fixing into the Satversme the right of everyone to the assistance of counsel as an integral part of a fair court, has been to secure duly, accessible and qualitative legal aid in civil, administrative and criminal processes as well as at the Constitutional Court process to every person. It is based on one of the most important national and international legal principles – the principle of justice.’
(Available at the Internet site of the Constitutional http://www.satv.tiesa.gov.lv/Eng/spriedum.htm (01.01.2004).
Court,
Part Two: I. D. Sources and codification of international law - sources of international law - unilateral acts (including acts and decisions of international organisations and conferences) 2/2 On 1 December 2003 Mrs Sandra Kalniete, Foreign Minister, addressed 11th Ministerial Council Meeting of the OSCE in Maastricht and remarked that: ‘ . . . the long-term settlement [of the Transnistrian conflict in Moldova] is also dependent on completion of the withdrawal of Russian troops and armament from Moldova. We call upon the Russian Federation to honour its commitments undertaken in Istanbul and to complete the withdrawal from Moldova and come to agreement with Georgia on the withdrawal of its troops from Georgian territory’.
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.06.2004)). Part Two: III. Sources and codification of international law – codification and progressive development 2/3 During the Saeima discussions on the adoption of the Statement on Latvia’s Support for the Implementation of UN Security Council’s Resolution No. 1441 Mr Edgars Jaunups, MP and a member of the Legal Affairs Committee, briefly remarked about the development of the right to intervene to stop human rights abuse: 221
Republic of Latvia Materials on ‘One needs to understand that the traditional situation existent even a century ago that leaders of sovereign countries could freely use the residents of their countries, even torture and kill them, has changed. Military activities in Kosovo, putting Miloševiþ to the trial, the newly created International Criminal Court as well as the Convention on the Prevention and Punishment of the Crime of Genocide in international law – all this has created broader competences of intervention in the name of human rights.’
(Latvijas VƝstnesis, 2003.gada 25.novembris (Latvian Herald, 25 November 2003), 2003.gada 25.novembris, also available at the Internet site of Saeima, http://www.saeima.lv/Likumdosana/likumdosana_stenogrammas. html, editor’s translation). Part Three: I. B. The law of treaties – definition, conclusion and entry into force – conclusion, including signature, ratification, and accession 3/1 The Constitutional Court in the Judgment of 14 February 2003 in Case No.2002-14-04 ‘On the Compliance of the Cabinet of Ministers August 8, 2001 Decree No. 401 ‘ On the Location of the Hazardous Waste Incineration Facility in Olaine’ with Articles 111 and 115 of the Satversme, Articles 5 and 6 (Items 1-3) of the Waste Management Law, Articles 3 and 11 of the Law ‘On the Environmental Impact Assessment’, Articles 14 and 17 (the First Part) of the Law on Pollution as well as Article 11 of the Law ‘On Environmental Protection’ observed: ‘At the time of passing the challenged decree accession of Latvia to the Aarhus Convention [on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters] was signed and even though it was not ratified, the government of Latvia had expressed its political will to observe the guiding lines on the environment protection, mentioned in the Convention.’
(Available at the Internet site of the Constitutional http://www.satv.tiesa.gov.lv/Eng/spriedum.htm (01.01.2004)).
Court,
3/2 The Constitutional Court in the Judgment of 20 May 2003 in Case No.200221-01 ‘On the Compliance of Article 27 (the Fourth Part) and the Text of Article 28 (the Second Part) ‘…for the Time Period until the Age of 65 Years’ of the Higher School Law and Article 29 (the Fifth Part) of the Law 222
International Law 2003 “On Scientific Activity” with Articles 91 and 106 of the Republic of Latvia Satversme’ observed: ‘Protocol 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which has been signed also by the Republic of Latvia, anticipates guaranteeing to any person enjoyment of rights set forth by law without discrimination.’
(Available at the Internet site of the Constitutional http://www.satv.tiesa.gov.lv/Eng/spriedum.htm (01.01.2004)).
Court,
3/3 The Constitutional Court in the Judgment of 17 November 2003 in Case No.2003-13-0106 ‘On the Compliance of Section 57 (the first part), Section 136 (Items 2 and 3 of the third part) and Section 143 (Items 2 and 3 of the fourth part) of the Labour Law with Article 106 of the Republic of Latvia Satversme (Constitution), Articles 1, 2 and 4 of the June 28, 1930 Convention Concerning Forced Labour and Article 1 of the June 25, 1957 Convention Concerning the Abolition of Forced Labour’ observed: ‘ILO Convention No. 29 cannot be regarded as binding on Latvia as it has not been ratified. Ratification of ILO Convention No.105 cannot be regarded as being completed either, as in accordance with Article 2 of the Law ‘On the Procedure by which Laws and Other Acts, Adopted by the Saeima, State President and the Cabinet are Promulgated, Published, Take Effect and Being Valid’ and Article 16 of the Law ‘On the Republic of Latvia International Agreements’ publication of it in the State language in the official newspaper shall be made.’
(Available at the Internet site of the Constitutional http://www.satv.tiesa.gov.lv/Eng/spriedum.htm (01.01.2004)).
Court,
Part Three: I. D. The law of treaties – definition, conclusion and entry into force – provisional application, and entry into force (See 3/1, 3/3) Part Three: II. C. The law of treaties – observance, application and interpretation – interpretation 3/4 The ECtHR in the judgment of Slivenko v. Latvia affirmed that the LatvianRussian Treaty on the Withdrawal of Russian Troops and its application in 223
Republic of Latvia Materials on the specific case had a legitimate aim for the purpose of Article 8 of the European Convention on the Protection of Human Rights and Fundamental Rights (ECHR): ‘The respondent Government submitted that the applicants’ removal from Latvia had pursued the legitimate aims of the protection of national security and the prevention of disorder and crime. They emphasised in this connection that the measure had to be seen in the context of the ‘eradication of the consequences of the illegal occupation of Latvia by the Soviet Union’. The applicants contested those submissions, none of the above aims having been mentioned in the domestic proceedings concerning their own case, which had been limited to reviewing the lawfulness of their residential status in Latvia. The third party objected to the respondent Government’s statement describing the pre-1991 situation of Latvia as having been illegal under international law. The Court considers that the aim of the particular measures taken in respect of the applicants cannot be dissociated from the wider context of the constitutional and international law arrangements made after Latvia regained its independence in 1991. In this context it is not necessary to deal with the previous situation of Latvia under international law. It is sufficient to note that after the dissolution of the USSR former Soviet military troops remained in Latvia under Russian jurisdiction, at the time when both Latvia and Russia were independent States. The Court therefore accepts that by the Latvian-Russian treaty on the withdrawal of Russian troops and the measures for the implementation of this treaty, the Latvian authorities sought to protect the interest of the country’s national security. In short, the measures of the applicants’ removal can be said to have been imposed in pursuance of the protection of national security, a legitimate aim within the meaning of Article 8 § 2 of the Convention.’
(Slivenko v. Latvia, no 48321/99, Judgment of 9 October 2003, paras.11112) 3/5 Judges of the ECtHR Wildhaber, Ress, Bratza, Cabral Barreto, Greve and Maruste in the judgment of Slivenko v. Latvia in their joint dissenting opinion concurred with the view of the majority by stating that: ‘We fully share the view of the majority not only that the Latvian-Russian treaty of 30 April 1994 on the withdrawal of Russian troops from Latvia served a legitimate aim in terms of Article 8 of the Convention [ECHR], but also that the treaty provided for the withdrawal of all military officers
224
International Law 2003 who after 28 January 1992 had been placed under Latvian jurisdiction, and that it further obliged their families to leave the country, was not in itself objectionable from the point of view of the Convention [Further the dissenting judges found that ECHR was not violated in the specific case as well].’
The dissenting judges laid particular emphasis on ‘ . . . the specific historical context and purpose for which the treaty was signed, namely the elimination of the consequences of the Soviet rule of Latvia. In the preamble of the treaty both parties to the agreement – Latvia and Russia – accepted that the withdrawal of the Russian troops was intended ‘To eradicate the negative consequences of their common history’ . . . The legitimacy of this purpose of the treaty is, in our view, of foremost importance in assessing the justification for an interference with the rights of individual members of the forces and of their families, who were subject to removal from the country under the treaty. It is also significant to note that the treaty itself did not impose on the Latvian authorities an obligation to justify each measure taken by reference to the actual danger posed to national security by the specific individual concerned, particularly in relation to non-military family members. General schemes such as the present one for the withdrawal of foreign troops and their families do not easily accommodate procedures of individual, particularised justifications on the merits of each and every state . . . In our view the approach of defining in the governing instrument the broad categories of troops, and the accompanying members of their family, to be withdrawn without reference to their personal history strikes the requisite fair balance between the competing interests of the individual and community. . . . Having regard to the legitimate aim pursued by the treaty – namely, the repatriation of the totality of a foreign army, including both military personnel and dependents – Article 8 cannot in our view be interpreted as requiring that the treaty is applied in such a manner that close relatives who had resided in Latvia for a considerable time, thereby establishing a home and a private life there, could only be expelled if they personally could be shown to represent a threat to the national security of Latvia. Such an interpretation would undermine the effective implementation of the treaty since, by its very nature, the condition of actual danger to territorial security will hardly ever be satisfied in relation to family members. Once the legitimacy of including family members in the programme of withdrawal has been recognised, we find it difficult to accept that more importance must be attached to the private interests of family members of recently retired officers than to those of officers still in active service.
225
Republic of Latvia Materials on The majority of the Court rely on the fact that, after their discharge from the armed forces, a requirement to move as part of the general conditions of military service will normally no longer apply to military officers and their families. While this is true, the present case is concerned not with a reposting of military officers and their families in accordance with the general conditions of military service, but rather with the implementation of the terms of an international treaty, designed to secure the withdrawal of an imposed and long-standing military presence from a foreign territory. In this regard, we would note that the treaty arrangements themselves endeavoured to take account of the family life of the persons concerned, by treating the family as a unit, with the Russian Federation undertaking to accept the whole family within its territory, irrespective of the origin or nationality of the individual members of the family.’
(Slivenko v. Latvia, no 48321/99, Judgment of 9 October 2003, Joint dissenting opinion of Judges Wildhaber, Ress, Bratza, Cabral Barreto, Greve and Maruste, paras.2, 4, 7, 8). 3/6 During the Saeima discussions on the adoption of the Statement on Latvia’s Support for the Implementation of UN Security Council’s Resolution No. 1441 Mr Edgars Jaunups, MP and a member of the Legal Affairs Committee, remarked about the scope of obligations under the Convention for the Prevention and Punishment of the Crime of Genocide: ‘Latvia is a Member State of the Convention on the Prevention and Punishment of the Crime of Genocide and our obligation is to stop the genocidal crimes in the world and to achieve the punishment of the guilty ones.’
(Latvijas VƝstnesis, 2003.gada 25.novembris (Latvian Herald, 25 November 2003), also available at the Internet site of Saeima, http://www.saeima.lv/Likumdosana/likumdosana_stenogrammas.html (01.01.2004), editor’s translation). Part Three: VIII. The law of treaties – consensual arrangements other than treaties 3/7 The Constitutional Court in the Judgment of 4 February 2003 in Case No.2002-06-01 ‘On the Compliance of Article 49 (its second part) of the
226
International Law 2003 Law ‘On Judicial Power’ with Articles 1 and 83 of the Satversme (Constitution)’ observed: ‘When adopting the May 4, 1990 Declaration “On the Accession of the Republic of Latvia to International Legal Instruments on Human Rights Issues”, Latvia acceded also to the fundamental principles of the Independence of Judicial Power, determined by the United Nations Organization. In compliance with these principles the state shall guarantee the independence of the judicial power and fix it in the state Constitution or in law. ‘The judicial power shall review cases impartially on the basis of facts and in compliance with the law, without any restrictions, influences, stimuli, pressure, threats – direct or indirect – from any party or because of any reason’ (Fundamental Principles of Independence of Judicial Power – Human Rights. Collection of International Agreements, vol. I. UN, New York, Geneva, 1994).’
(Available at the Internet site of the Constitutional http://www.satv.tiesa.gov.lv/Eng/spriedum.htm (01.01.2004)).
Court,
Part Four: II. A. Relationship between international law and internal law – application and implementation of international law in internal law – treaties 4/1 On 13 November 2002 Latvia submitted a report under Article 40 of the International Covenant on Civil and Political Rights to the UN Human Rights Committee,1 which in part read: ‘5. The legal system of Latvia follows the doctrine of monism: acts of international law if they have passed under a respective procedure, are recognised to be elements of the national system of law. Besides, norms and principles of international law have priority over the norms of national law. It was already stipulated in the Declaration of 4 May 1990 “On Restoration of the Independence of the Republic of Latvia” where Article 1 prescribed the dominance of fundamental principles of international law over national laws. Under Article 13 of the Law of 13 January 1994 “On 1
Strictly speaking, this Latvia’s report to the Human Rights Committee falls outside the scope of RLILM 2003 for the simple reasons it has been made in the year 2002. However, considering that RLILM is the first general overview of Latvian international law practise and the importance of this statement in understanding other issues of application of international law, and, moreover, the fact that the report was submitted at the very end of 2002, we have decided to include it in RLILM 2003.
227
Republic of Latvia Materials on International Agreements of the Republic of Latvia”, provisions of an international agreement apply if the international agreement that has been approved by the Saeima (Parliament) prescribes provisions different from those prescribed by legislative acts of the Latvia. 6. In compliance with laws and main legal principles of Latvia norms of international agreements that have been ratified following the prescribed procedure, can be applied directly in judicial proceedings. Several courts of Latvia, among them also the Constitutional Court, have referred to and applied norms of international agreements, including the Covenant, that are binding for Latvia.’
(CCPR/C/LVA/2002/2, 19 November 2002, available at the Internet site of UN HRC, http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450 044f331/49ee829adffba340c1256d600045d989/$FILE/G0246116.pdf). 4/2 The Supreme Court in the Judgment in the Case No SKC-95 (the dispute concerned annulment of a residence permit for an alien missionary), observed: ‘[Cassator notes that] [t]he court has not applied Article 116 of the Satversme and provisions of the Law “On 1950 European Convention on the Protection of Human Rights and Fundamental Freedoms and 1, 2, 4, 7 and 11 Protocols Hereto”, has not applied the interpretation of Article 9 of the Convention by the European Court of Human Rights. . . . Cassator also notes that the court has breached Article 116 of the Satversme that human rights may be subject to restrictions only in circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State, and public safety, welfare and morals, [and] that on the basis of these conditions restrictions may also be imposed on the expression of religious beliefs. The cassator also refers to Article 9 of the European Convention on the Protection of Human Rights and Fundamental Freedoms that freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. The infringement of the enumerated provisions is linked to the fact that the necessity of prohibition is not understandable, because he [the cassator] is allowed to remain in Latvia that does not prevent the theoretical threat that the restriction is not proportionate.
228
International Law 2003 . . . As the last argument for annulling the judgment the cassator has noted paragraph 47 of the European Court of Human Rights Judgment of 26 September 1996 in T. Manoussakis and Others v. Greece case which states that the rights to freedom of religion [excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate, linking it with the note that the appeal court has not applied interpretation of Article 9 of the Convention without any reasoning. Senate considers that the appeal court has correctly not linked the case under consideration with the interpretation of the Convention as laid down in the Judgment of 26 September 1996 of the European Court of Human Rights, since the facts of the case under consideration differ and the dispute before the European Court of Human Rights did not concern threat for state security as in the current case.’
(Lieta No SKC-95, 19 February 2003, editor’s translation). 4/3 The Supreme Court in the Judgment in case No. SKC-254 (the dispute concerned a residence permit for an alien, former non-citizen of Latvia) observed: ‘Also the observation in the cassation appeal is unsubstantiated that the court in making its judgment has not taken into account and has therefore breached Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, Articles 96 and 110 of Satversme of Republic of Latvia about respecting and inviolability of family life. Article 8 of the abovementioned Convention and the basic rules of the Satversme of Latvia provide that everyone has the right to respect for his private and family life, his home and his correspondence., but in the current case the actions of officials may not be considered as an infringement of the private and family life of the cassators.’
(Lieta No SKC-254, 19 February 2003, editor’s translation). 4/4 The Supreme Court in the Judgment in case No. SKK 01-302/03 observed: ‘It has also been noted in the cassation appeal that the court has allowed a breach of Article 243 of Latvian Criminal Procedure Code and a breach of Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. The use of procedural rights in the adversarial
229
Republic of Latvia Materials on manner has not been ensured, since the right has been denied to crossexamine in court proceedings those witnesses that have been crossexamined in pre-trial investigation . . . As regards the reference to Article 6 (3) d) of the Convention on the Protection of Human Rights and Fundamental Freedoms, the Senate is not entitled to consider this appeal from such a point of view. However, it is necessary to note that the European Court of Human Rights in the case Engels and Others v. Netherlands has recognised that Article 6 (3) d) of the Convention does not impose a mandatory obligation to cross-examine all the witnesses in the court, if the accused persons have not asked for this cross-examination.’
(Lieta No SKK 01-302/03, 30 May 2003, editor’s translation). 4/5 The Constitutional Court in the Judgment of June 27, 2003 in case No.200304-01 ‘On the Compliance of Articles 82 (the Fifth Part) and 453 (the Second Part) of the Civil Procedure Law with Articles 91 and 92 of the Republic of Latvia Satversme’ observed: ‘Article 92 of the Satversme determines that ‘everyone has the right to defend their rights and lawful interests in a fair court . . . Everyone has a right to the assistance of counsel’. The contents of the Article shall be interpreted as read together with Article 89 of the Satversme, which establishes that ‘the State shall recognize and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia’. From the Article follows that the aim of the legislator has not been to oppose norms of human rights, incorporated into the Satversme, to the international ones. Quite to the contrary – the objective of the legislator has been to achieve mutual harmony of the norms. In cases, when there is doubt about the contents of the human rights included in the Satversme, they should be interpreted in compliance with the practice of application of international norms of human rights (August 30, 2000 Constitutional Court Judgment in case No. 2002-03-01; and October 22, 2002 Judgment in case No. 2002-04-03).’
(Available at the Internet site of the Constitutional http://www.satv.tiesa.gov.lv/Eng/spriedum.htm (01.01.2004)).
Court,
4/6 The Supreme Court in the Judgment in the case No. SKC-309 (the dispute concerned a company’s publication of its debtors names in a local newspaper 230
International Law 2003 and the conformity of this action with the data protection laws) observed, when considering the applicability of the right to private life to private law relationship: ‘ . . . Later the claim was based on a reference to Articles 92, 95, 96 and 104 of the Satversme of the Republic of Latvia, Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, Article 5 of the Civil Law. . . . The court does not find that the publication . . . substantially infringes the rights of Vitalijs Smolickis as a private person that have been provided for in Articles 92, 95, 96 and 104 of the Satversme of the Republic of Latvia, Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms and Articles 6 and 7 of the Data Protection Law. . . . The cassator notes that the court has not applied the material provision that it had to apply. The claim was based on Articles 92, 95, 96 and 104 of the Satversme of the Republic of Latvia as well as Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms about the protection of private life, but the court did not apply it. . . . It has been incorrectly noted in the cassation appeal that Articles 92, 95, 96 and 104 of the Satversme of the Republic of Latvia, Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms and Articles 6 and 7 of the Data Protection Law have been breached. The legal relationship in dispute in the current case is a contractual legal relationship that has been created as a result of a contract . . . Contractual legal relation cannot be identified with the rules about the inviolability of private life, because these are contractual relationship between two or more contractors. In the contract of service, as in any other contract, the participants of the legal relationship are contractors. The contract of service is a reciprocal contract, where each contractor has his rights and obligations. The obligation of the recipient of service is to pay for the received service, but the right of the provider of services is to request payment for the service provided. If the recipient of service does not fulfil its obligation and it is announced to the public, it cannot be considered as being an element (constituent part) of personal data protection, because it is contrasted by the other contractor’s corresponding right to request payment. It is affirmed by Article 12 of the Data Protection Law that applies the prohibition to data processing in civil cases only to those civil law relations that are considered in closed hearings.’
(Lieta No SKC-309, editor’s translation). 231
Republic of Latvia Materials on 4/7 Riga city Latgale District Court in the Judgment of 8 September 2003 in the Case No C29240503 (the dispute concerned a political advertisement negatively depicting dark skinned persons), observed: ‘There is no dispute that Latvian Television . . . transmitted the advertisement of the political organisation ‘BrƯvƯbas partija’ (‘Freedom Party’), in which a dark skinned man at the Freedom Monument in the uniform of a soldier of the Latvian Armed Forces, but in the next frames a dark skinned man that hugs a girl in a traditional costume were portrayed with the following phrase in the background text: ‘Today a guardian of Latvia, tomorrow – perhaps your son-in-law’ and the following text in the subtitle: ‘Freedom Party warns! Already within the next 10 years 20 billions of economic refugees from Asia and Africa will seek asylum in the States of the European Union. How many of them will choose Latvia as their place of rest? Are you confident about your working place? Freedom Party warns!’ On 9 April 2003, the Supreme Court . . . recognised in the judgment that such a published and disseminated advertisement is considered as discriminating persons based on race that is contrary to the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, as well as the Convention on the Protection of Human Rights and Fundamental Freedoms. The [Supreme] court also recognised that there is no doubt that the advertisement with the Freedom Monument in the background and the following subtitles includes the concept of racial discrimination, since it may activate prejudices, dubious interpretations. The court recognised that the advertisement was not ethical and it may be recognised as being such as to balance on the instigation of racial hatred and enmity as well as the discrimination of persons based on race or national origin . . . The [Supreme] court recognises as substantiated the applicant’s note that the advertisement of the Freedom Party separates dark skinned and light skinned residents of Latvia and expresses the opinion that marriages between such persons are undesirable, therefore the advertisements distinguishes persons based on race in respect to the rights to find a family and to reside in Latvia. Such a distinction is recognised to be discrimination according to the definition given in Article 1 (1) of the International Convention on the Elimination of All Forms of Racial Discrimination. There is no doubt that the advertisement expresses an opinion that influx of other races in Latvia is undesirable and therefore instigates against other races and contributes to the racial enmity in Latvia.
232
International Law 2003 . . . In the specific case the [Riga city Latgale District] court is in no doubt that the given advertisement affects a limited number of persons within Latvian society and as a result of the advertisement the applicant may be identified and considered as being undesirable in Latvia as a dark skinned American who lives in Latvia and is married to a light skinned Latvian. Article 89 of Satversme stipulates that ‘The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia’. Article 92 of the Satversme of the Republic of Latvia [within the context of] Latvia’s international obligation within the field of human rights, especially Article 13 of the European Convention of Human Rights, stipulates that everyone in Latvia, who considers his rights to be infringed, has the right to defend their rights before a national judicial authority. Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination provides that “States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination”.’
(Lieta No C29240503, available at the Internet site http://www.politika.lv/index.php?id=107531&lang=lv, editor’s translation). 4/8 The Constitutional Court in the Judgment of 17 November 2003 in Case No.2003-13-0106 ‘On the Compliance of Section 57 (the first part), Section 136 (Items 2 and 3 of the third part) and Section 143 (Items 2 and 3 of the fourth part) of the Labour Law with Article 106 of the Republic of Latvia Satversme (Constitution), Articles 1, 2 and 4 of the June 28, 1930 Convention Concerning Forced Labour and Article 1 of the June 25, 1957 Convention Concerning the Abolition of Forced Labour’ extensively elaborated on the concept of ‘forced labour’ in national and international law: ‘1. To evaluate the conformity of the challenged norms with the abolition of forced labour determined in Article 106 of the Satversme one has to clarify the contents of the notion ‘forced labour’. 1.1. Article 106 of the Satversme does not give the definition of forced labour. It only names the kinds of work, which shall not be deemed forced labour – participation in the relief of diasters and their effects and work pursuant to a court order.
233
Republic of Latvia Materials on Prohibition of forced labour is incorporated into several international instruments on human rights, among them also in the Convention and ILO Conventions No. 29 and No. 105. Article 4 of the Convention establishes that forced labour is prohibited but just as Article 106 of the Satversme does not give the definition of forced labour either. The European Court of Human Rights makes use of the definition of forced labour, which is determined in Article 2 (the first part) of the ILO Convention No. 29. The European Court of Human Rights regards this definition as binding, as Article 4 of the Convention has been adopted on the basis of ILO Convention No. 29 (Law of the European Convention on Human Rights. London, Dublin, Edinburgh, Butterworths, 1995, p. 92). ILO Convention No. 29 was adopted to set free the native inhabitants of colonies from forced labour. The Second World War and the time that followed brought a new wave of forced labour, the motives of which usually were political. Under totalitarian regimes forced labour served as the means for reaching economical aims. On 25 June 1957, ILO Convention No. 105, which is regarded as a supplement and not a new version of ILO Convention No. 29, was adopted to put an end to forced labour under the new circumstances. As Latvia is a Member State of the Convention, the Judgments of the European Court of Human Rights are binding on it and it shall respect the interpretation of international legal norms incorporated in the judgments. ILO Convention No. 29 cannot be regarded as binding on Latvia as it has not been ratified. Ratification of ILO Convention No. 105 cannot be regarded as being completed either, as in accordance with Article 2 of the Law ‘On the Procedure by which Laws and Other Acts, Adopted by the Saeima, State President and the Cabinet are Promulgated, Published, Take Effect and Being Valid’ and Article 16 of the Law ‘On the Republic of Latvia International Agreements’ publication of it in the State language in the official newspaper shall be made. Taking into consideration the above circumstances ILO Conventions No. 29 and No. 105 shall be used in the Constitutional Court Judgment only for argumentation. 1.2. Article 2 of ILO Convention NO. 29 determines that ‘the term ‘forced or obligatory labour’ means any work or service which the person is compelled to do because of the threat of punishment and which the person has not volunteered to do’. Accordingly, Article 1 of ILO Convention No. 105 establishes that ‘every Member State of the International Labour organization, which ratifies this Convention, undertakes the duty of abolishing all the forms of forced or obligatory labour: a) as the means for political enforcement or education or as the punishment for having and propagating political viewpoints, which contradict political, social and economical opinion of the ruling state
234
International Law 2003 system; b) as the method for mobilizing the workers and using them for the development of the economy; c) for the reasons of working discipline; d) as the punishment for participation in strikes; e) as the means for racial, social, national and religious discrimination’. As ILO Convention No. 105 is regarded as the supplement to ILO Convention No. 29, specifics of forced labour included in both conventions shall be analysed. The European Court of Human Rights declares that the definition of forced labour, incorporated into ILO Convention No. 29, shall be regarded as the starting point for interpretation of Article 4 of the Convention. When interpreting the notion ‘forced labour’ the European Court of Human Rights points out that two circumstances shall be taken into consideration: whether the work is performed against the will of the person and whether the duty of performing it is ‘unjust’ or its performance ‘oppressive’ (see the European Court of Human Rights October 27, 1983 Judgment in case Van der Mussele v. Belgium). Thus forced labour is any work or service, which is unjust and oppressive and which the person has not volunteered to perform.2 2. Article 106 of the Satversme determines: ‘participation in the relief of disasters and their effects and work pursuant to a court order shall not be deemed forced labour’. In comparison with the Satversme, Article 4 (the third part) of the Convention mentions a greater number of work, which shall not be deemed forced labour − any work required to be done in the ordinary course of detention; any service of a military character; any service exacted in case of an emergency or calamity threatening well-being of the community; any work or service, which forms part of normal civic obligations. Article 8 (the third part) of the International Covenant on Civil and Political Rights envisages the same. 2
The correctness of this conclusion may be open to respectful doubt because it seems to be based on at least partly incorrect premise. The ECtHR in Van Mussele v. Belgium indeed observed that ‘[…] the Commission expressed the opinion that for there to be forced or compulsory labour, […] two cumulative conditions have to be satisfied: not only must the labour be performed by the person against his or her will, but either the obligation to carry it out must be ‘unjust’ or ‘oppressive’ or its performance must constitute ‘an avoidable hardship’, in other words be ‘needlessly distressing’ or ‘somewhat harassing’”. However, after quoting the opinion of the Commission, the ECtHR stated that ‘[…] the second criterion thus applied is not stated in Article 2 § 1 of ILO Convention No. 29’ and then concluded: ‘Be that as it may, the Court prefers to adopt a different approach’. Therefore, it may be argued that the Constitutional Court defined forced labour in a narrower manner than actually required by the ECHR.
235
Republic of Latvia Materials on A similar enumeration of work can be found also in Article 2 (the second part) of Article 29 of ILO. In accordance with it forced labour shall not include work or services, which are performed while in mandatory State service and which have military specifics; work or services that are included in the duties of a citizen as well as insignificant municipal services performed for public purposes. The exceptional cases envisaged in Article 106 of the Satversme, Article 4 (part three) of the Convention and Article 2 (part two) of the ILO Convention No. 29, have been determined to protect public security and welfare, besides, only as extraordinary measures. The above work is of public legal nature and is assigned by the public legal subjects. Administrative or criminal liability may attach in if the person refuses to perform the above work, e.g., for the refusal to perform any work required in the course of detention, for evading from mandatory State service. The Satversme and the international human rights instruments testify that they are against forced labour of publicly legal nature, against assignment of people for performing work on the basis of the order by the State or municipal institutions, i.e. without the existence of legal labour relations. The public legal nature of forced labour was stressed also when debating on Article 20 of the Constitutional Law ‘The Rights and Obligations of a Citizen and a Person’. When answering to the question asked at the plenary session, the reporter on the draft law, R. Rikards, said: ‘Forced labour is the work, which was organized in the USSR – like sending people to the collective farms…’ (Verbatim report of the Republic of Latvia Supreme Council October 16, 1991 session). There is no reason to hold that the prohibition of forced labour, enshrined in the Satversme does not concern the private sector. It follows also from international human rights instruments, inter alia, also ILO Convention No. 29. The first part of its Article 4 determines that State public institutions may not allow forced labour in the interests of private persons, companies and associations. Thus forced labour is prohibited not only in publicly legal but also in civil relations – legal labour relations, which are regulated by the Labour Law. ‘ . . . One of the specifications of forced labour is the fact that the person has not volunteered to perform the work. To declare that a certain work is forced labour it has to be work from the performance of which the person has no possibility to refuse. For example, if the employee’s identification documents have been taken away, if they are kept watch over or they are physically forced to perform it, as well as when remuneration has been retained. The labour agreement envisages the possibility of giving notice, therefore, even though the challenged norm does demand receiving
236
International Law 2003 consent of the employee, activities, mentioned in it cannot be regarded as forced labour. The second specification of the forced labour is that it may not be used as the means for political enforcement or as the method of mobilising the workers for reaching the aims of economic development, as the aim of labour discipline, as the punishment for participation in strikes as the means for race, social, national or religious discrimination (see Article 1 of the ILO Convention No. 105). In our days, slavery and kidnapping for the reason of using people as labour force, ordering servants perform forced labour, forced labour on the basis of unpaid debts, trading people, forced labour in the places of detention, and forced labour of children are some of the main forms of forced labour (see Zwangsarbeit: Seit langem verboten und geächtet, aber nicht ausgerottet. ILO- Nachrichten 2/2001, www.ilo.org/public/german/ region/europro/bonn/-download/ilo-nl210.pfd, 23.10.2003). The challenged norms are directed towards ensuring the normal working procedure of an undertaking and are in the interests of both – the employer and the employee. The challenged norms do not serve as the aims and means incorporated in the international instruments, which may not be used and the restrictions envisaged in them forbids qualifying the work as unjust and cruel. Thus we may conclude that the work envisaged in the challenged norms cannot be regarded as forced labour in the understanding of Article 106 of the Satversme.’
(Available at the Internet site of the Constitutional http://www.satv.tiesa.gov.lv/Eng/spriedum.htm (01.01.2004)).
Court,
Part Four: II. B. Relationship between international law and internal law – application and implementation of international law in internal law – custom (See 4/1) Part Four: II. C. Relationship between international law and internal law – application and implementation of international law in internal law – sources other than treaty and custom (See 4/1)
237
Republic of Latvia Materials on Part Five: I. A. 2. Subjects of international law - States – status and powers – sovereignty and independence 5/1 On 23 September 2003 Dr. Vaira VƯƷe-Freiberga, President, in addressing the 58th Session of the General Assembly of the United Nations in New York, observed: ‘Latvia views the Road Map for Peace, which foresees a free and secure State of Israel living in peace alongside an independent Palestinian State, as the only feasible means for ending the dangerous impasse that both sides have now reached.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). 5/2 The ECtHR in the judgment of Slivenko v. Latvia observed in respect to the effects of the presence of Russian army within the Latvian territory after the renewal of Latvia’s independence that: ‘ . . . it is evident that the continued presence of active servicemen of a foreign army, with their families, may be seen as being incompatible with the sovereignty of an independent State and as a threat to national security. The public interest in the removal of active servicemen and their families from the territory will therefore normally outweigh the individual’s interest in staying.’
(Slivenko v. Latvia, no 48321/99, Judgment of 9 October 2003, para. 118) 5/3 Judges of the ECtHR: Wildhaber, Ress, Bratza, Cabral Barreto, Greve and Maruste, in the judgment of Slivenko v. Latvia in their joint dissenting opinion concurred with the view of the majority by stating that: ‘We also endorse the view that, in so far as the withdrawal of the Russian troops interfered with the private life and home of the persons concerned, such interference would not normally appear disproportionate, having regard to the conditions of service of military officers; the continued presence of servicemen of a foreign army, with their families, may, as the judgment points out, be seen as incompatible with the sovereignty of an independent State and as a threat to national security and the public interest
238
International Law 2003 in their removal from the territory will normally outweigh the individual’s interest in staying.’
(Slivenko v. Latvia, no 48321/99, Judgment of 9 October 2003, Joint dissenting opinion of Judges Wildhaber, Ress, Bratza, Cabral Barreto, Greve and Maruste, para. 2) 5/4 Judge of the ECtHR Maruste in the judgment of Slivenko v. Latvia in his separate dissenting opinion also agreed that: ‘The Court rightly accepted that the withdrawal of the armed forces of one independent State from the territory of another constitutes an appropriate way of dealing with the various political, social and economic problems arising from that historical injustice [illegal occupation of the Baltic States by the Soviet Union].’
(Slivenko v. Latvia, no 48321/99, Judgment of 9 October 2003, Separate dissenting opinion of Judge Maruste). Part Five: II. D. 1. Subjects of international law - States – formation, identity, continuity, extinction, and succession of States – conditions for statehood (see 5/1) Part Five: II. A. 1. (d) Subjects of international law - international organisations – general – status and powers – other powers 5/5 On 17 March 2003, in making a statement to the 59th Session of the Commission on Human Rights, Dr. Nils Muižnieks, Minister of Social Integration, observed: ‘Over the years the Commission on Human Rights has proved to be one of the most important forums for debate on human rights standards and monitoring compliance throughout the world. The continued relevance of the Commission is attested to by the ever-increasing number of participants, including NGOs and National Human Rights institutions. But we must also recognise that the Commission is not the sole actor on the human rights stage and that closer cooperation among States and various international organizations is essential in order to achieve our common goals with the limited resources at our disposal. Europe, the region of
239
Republic of Latvia Materials on which Latvia is a part, has a particularly dense network of human rights mechanisms – the European Court of Human Rights in the Council of Europe; the High Commissioner on National Minorities and Office of Democratic Institutions and Human Rights within the OSCE; the Commissioner on Democratic Development within the Council of the Baltic Sea States and increasingly, European Union bodies, including the European Court of Justice and the EU Monitoring Centre against Racism and Xenophobia. Given the number of actors involved in human rights promotion and protection, coordination and a certain division of labour are essential. Therefore Latvia strongly supports the organisation of a conference within the context of the OSCE on anti-semitism as a threat to security since we believe it would be a very valuable contribution to the global debate on the prevention of racial discrimination and promotion of tolerance hosted by the UN. While these overlapping mandates can strengthen compliance, this situation can also lead to inconsistency and confusion. For example, recently the UN Human Rights Committee, the European Court of Human Rights and the OSCE all gave different evaluations regarding a particular human rights issue in Latvia. While this permitted everyone to claim victory, the public was disoriented and human rights experts were dismayed. We believe that one of the most valuable tools of the Commission as well as the UN human rights system in general is the periodic examination of State reports on the implementation of various human rights instruments. However, one has to acknowledge the difficulties faced by the treaty bodies now, particularly the failure of many States to honour their reporting obligations and the delays and backlogs in the work of various committees, which often consider reports long after they have been submitted. In this regard we call upon both the States and treaty bodies to work towards further elaboration and implementation of the proposals put forward at the First Inter-Committee meeting of the human rights treaty bodies held in June 2002. In particular we encourage continued dialogue with nonreporters in order to identify existing obstacles and ways to overcome them. The OHCHR should consider technical assistance for non-reporting countries that lack institutional capacity. We also welcome other proposals such as the possibility to submit focused periodic reports or the possibility to submit consolidated reports. We believe that these proposals merit further discussion.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004).
240
International Law 2003 Part Five: II. A. 2. (c) Subjects of international law - international organizations – general – participation of States and international organisations in international organisations and their activities – obligations of membership (See 5/5) Part Five: II. B. 1. Subjects of international law – international organisations – particular types of organisations – universal organisations 5/6 On 23 September 2003, Dr. Vaira VƯƷe-Freiberga, President, in addressing the 58th Session of the General Assembly of the United Nations in New York, among other things observed: ‘Since its foundation in 1948 the United Nations has seen the number of its member states increase almost four-fold. It has seen European colonialism, the Cold War, and apartheid come to an end. It has successfully brokered the cessation of hostilities in Cyprus, East Timor and other countries. It has provided trillions of dollars of development assistance to numerous countries. Latvia believes that the UN should remain the principal world body for the mediation of international disputes and for the formulation of universal rules of conduct abided to by all. However, the UN has also been criticized for being slow, unwieldy and ineffectual. Few would disagree that the UN has reached a point where changes within its structure are required so that it can effectively deal with the new challenges of the 21st century. Let us recall that a working group on the reform of the Security Council was created already ten years ago, shortly after the collapse of the bipolar world order that had dominated international relations for decades. At that time there were hopes that an unprecedented degree of unity might be reached within the UN community. For the moment, however, it appears that any substantial changes within the UN will have to await a renewed climate of consensus, which is not likely to precede the resolution of the crises in the Middle East, the settling of trade disputes and the establishment of greater unity about agricultural subsidies, arms proliferation and environmental issues.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004).
241
Republic of Latvia Materials on Part Five: II. B. 3. Subjects of international law – international organizations – particular types of organizations – organizations constituting integrated (e.g. economic) communities 5/7 On 17 February 2003, in making a statement at the EU-Latvia Joint Parliamentary Committee meeting in Brussels, Mrs Sandra Kalniete, Foreign Minister, stated: ‘We are convinced that EU should remain a union of strong nation States maintaining their cultural uniqueness. Latvia considers that the principle of rotating presidency is a symbol of equality of all EU Member States and should be preserved. The overall goal of current reforms is to make EU more transparent and understandable for its citizens. The reforms should guarantee that decision making process is made simple and more efficient.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) 5/8 On 21 February 2003 Mrs Sandra Kalniete, Foreign Minister, made a speech at the meeting of government representatives to the European Community, commenting on several aspects of the Draft Constitutional Treaty: ‘Speaking about the new Treaty, I think, that it is very well structured, simple and logical. This is the great step forward if we comparing the draft Treaty with the rather bureaucratic language of the current one. At the same time I would like to focus on the two reservations regarding the submitted articles of the Constitutional Treaty Draft. Firstly, the Union is a specific and original entity, which is based on the several establishing Treaties. Taking into account that the constitutional issues in the EU are approved on the basis of the agreement between the Member States in form of the treaties, the new Draft Treaty should be referred as the Constitutional Treaty. The concept of ‘Constitution’ itself, in my opinion, is not appropriate for the Union of the nation States. Therefore I would like to suggest principally use the title ‘Constitutional Treaty’ throughout the Draft as far the concept ‘treaty’ adverts to the voluntary aspect of the agreement. Secondly, the use of the term ‘federal’ in Article 1 of the Draft would be hardly acceptable, as it would lead to misconception among the citizens that a federal state is being built. Montesquieu once said that federal state is
242
International Law 2003 the community within the community, which constitutes a new community. Also the modern understanding of the concept “federal” indicates a model of the merging two or more countries into a joint body – federation, which itself embodies feature of the country. As far our aim is not to create the European Union as a federal state, use of this concept can cause groundless doubts regarding the true nature of the Union.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). 5/9 On 27 February 2003 Mrs Sandra Kalniete, Foreign Minister, commented on several Articles of the Draft Constitutional Treaty at the meeting of government representatives to the European Community, stating: ‘La création de l’Union européenne s’appuie sur plusieurs traités fondateurs. Les décisions de modification de ces traités s’effectuent par biais des nouveaux traités avec l’accord de tous les pays membres. Pour cette raison je préfère le terme Traité constitutionnel qui m’apparaît plus approprié que celui de ‘constitution’ car il désigne une union d’états souverains. Je dirais également la notion du ‘Traité constitutionnel’ doit être incorporée dans le corps du texte même de façon à insister sur l’accord volontaire des pays membres. En second lieu, je considère que l’appellation actuelle – l’Union européenne – doit être préservée. Elle reflète la forme de coopération des états dans la perspective d’objectifs communs. Il faut souligner également que son origine est récente puisqu’elle date de l’entrée en vigueur du traité qui porte son nom en 1993. Les citoyens d’Europe s’y sont accoutumés et s’y reconnaissent. En dernier lieu, je voudrais insister sur toute l’importance aux yeux de la Lettonie d’une Union européenne signifiant une union d’états souverains, et en conséquence permettez-moi de souligner le risque de confusion que pourrait créer auprès des citoyens la référence dans le Traité constitutionnel au “mode federal”. L’interprétation pourrait être celle de l’émergence d’un nouvel état national qui affaiblirait les identités des états membres et ne correspondrait pas à la vraie nature de la construction de cette Union européenne. En réalité le message à faire passer auprès nos populations est celui de la réalisation d’une union sans cesse plus étroite entre les états membres.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) ). 243
Republic of Latvia Materials on 5/10 On 17 March 2003 Mr Roberts ZƯle, the alternative representative of the Government of Latvia at the Convention, commented on several Articles of the Draft Constitutional Treaty at the meeting of government representatives to the European Community, stating: ‘Firstly, as regards the definition of the European regulation. In my view, the new document should contain more precise definition of this term, explaining, that this legal instrument is meant to serve for double purposes − both for the implementation of the legislative acts, and, as a form of the delegated acts. Secondly, in my opinion, as it derives from the legal framework of the draft project, certain problems could arise when it will be necessary to adopt EU legal instruments for the implementation of the European framework laws, or, if the elaboration of the delegated regulation is needed. In order to avoid this, alongside with the direct applicability, European Regulation should also carry its binding force as regards the result to be achieved, thus, the forms and the methods of the accomplishment of the result should remain in the competence of the Member States. Thirdly, in relation to the definition of the delegated acts, I think, that in the Article 27 it is not correct to state, that the delegated acts has the power to amend the legislative acts. It could create a misleading interpretation on the ability of legal act of lesser force to amend the legal act, which has higher position in the hierarchy of EU legal instruments.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). 5/11 On 4 April 2003 Mr Roberts ZƯle, the alternative representative of the Government of Latvia at the Convention, made a speech on the finances of the Union, stating: ‘The Union’s financial issues are based on two fundamental principles: the first one is ‘own resources’ and the second principle is ‘budgetary discipline’, which includes a financial perspective as its main element. Taking into account the crucial nature of these principles I would like to draw your attention to following questions: Firstly, the term ‘own resources’ is rather confusing in the eyes of the Union’s citizens because the major part of the Union’s finances consist of
244
International Law 2003 indirect contributions from Member States. In my opinion, this term should be re-named to make it more understandable and more appropriate to its real nature. I would like to propose to use the term ‘Union’s resources’ thus avoiding the word ‘own’. Secondly, financial perspectives should be included into the Treaty and thus they would become legally binding. That would simplify the budgetary procedure taking account of the fact the Union’s institutions when exercise their respective powers in the budgetary area should comply with the provisions determined in the financial perspective. Thirdly, I think that the Treaty should contain a provision which establishes a mechanism to remedy a failure of procedure to adopt a financial perspective. In that case the perspective applicable for the preceding year should apply for the following year. And finally, I would like to stress that the institutional balance should be maintained, also concerning budgetary procedure. Therefore, in my opinion, financial perspectives should be adopted by the Council of Ministers acting unanimously at its highest political level of the Heads of States or Governments.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). 5/12 On 25 April 2003 Mrs Sandra Kalniete, Foreign Minister, the representative of the Latvian government at the Convention, commented on the clause about withdrawing from the European Union by stating: ‘The European Union is made up of the Member States who voluntarily delegate a part of their sovereignty to the Union. Therefore, the citizens of the Union must have a guaranteed right to the return of the delegated part of their sovereignty. That is why I support the proposal of the Presidium that the Constitutional Treaty should contain provisions clearly vesting power in the States voluntarily to join and to withdraw from the European Union. I consider it insufficient to take existing international law, the Vienna Convention on the Law of Treaties, as the basis for Member States to be entitled to withdraw voluntarily from the Union, since we are not only talking about the legal nature of the procedure, but we are also sending out a powerful political message. There is also a psychological dimension to
245
Republic of Latvia Materials on this message. The people have to know that there is a right of choice. They choose to join the Union; they have a right to choose to secede from the Union. I am fully aware that this clause will never be used, but it has to be present as a symbol in the Constitutional Treaty. I fully agree that the secession procedure has to be worked out very carefully, taking into account the interests both of the Member States of the Union and of the State whose people choose to secede. What might be the cause of secession? It would only happen if the constitutional basis of the Union were changed.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) 5/13 On 15 May 2003 Mrs Sandra Kalniete, Foreign Minister, the representative of the Latvian government at the Convention, made a speech about the Draft Constitutional Treaty, stating: ‘General Comments: I would like to express my appreciation for the extensive and excellent work of the Presidium and for your work in particular. I believe that one of our common aspirations regarding the outcome of the Convention as a whole and the present draft of the Constitutional Treaty are rooted in our shared understanding of the basic principles of the Union. Among these principles the most important are the equality of States and the institutional balance within EU. This concerns reinforcement of the community method as well. However, the present draft in its institutional part does not comply fully with these criteria. I also believe that we have to have the common reading of the Nice Treaty regarding the institutions. We also have to agree to keep the Nice Treaty intact. Otherwise, we will open a Pandora’s box. European Parliament The draft revises the Nice Treaty as regards the number of members of the European Parliament, referring to the European Parliament as a body representing only citizens, not both citizens and States. I believe that this infringes the principle of equality of the Member States and does not comply with the principle of the dualistic nature of the European Union. European Council
246
International Law 2003 I strongly believe that for the sake of the equality of the States, the principle of the rotating Presidency of the European Council has to be maintained. The system of rotating Presidency, in my opinion, translates the role every nation state can play in the EU. It also embodies the equality of each Member State. The responsibility and visibility of the rotating Presidency enables each Member State to strengthen the vision of the European Union as a Union of different nation States sharing common aims and values. For the sake of maintaining the institutional balance, the proposal to grant the status of EU institution to the European Council is not an acceptable solution. I also doubt whether the principle of equality is respected if the President of the Council were to be elected, even if the Europeans would directly elect him or her. In my opinion such a change would upset the institutional balance among EU institutions. QMV As regards the voting procedures provided in the draft, I welcome the establishment of the QMV as a general procedure, in respect to the actions taken by the Council of Ministers. Meanwhile, I would like to suggest maintaining the definition of QMV in accordance with the Nice Treaty. European Commission A few words about the composition of the European Commission. Staying in the logic of the Nice Treaty, we have opportunity to preserve the current principle of representation: one commissioner to one Member State. The doubts have been raised about the capacity to work efficiently. Let’s test our capability to work as a group of 25. After the transitional period we shall have the requisite experience to adopt the correct and most functional arrangements regarding the composition of the Commission. Minister of Foreign Affairs Finally, I fully support the establishment of the post of Foreign Minister. I believe that he or she will be capable to voice loudly the concerns of the EU in the shaping of the new world order. However, I have doubts, whether a single person would be able to cope with all the workload proper to his or her responsibilities. Furthermore I believe that the term of “External Representative” better reflects the nature of this post, and would assist in avoiding possible misinterpretations.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004).
247
Republic of Latvia Materials on 5/14 On 16 May 2003 Mrs Sandra Kalniete, Foreign Minister, the representative of the Latvian government at the Convention, commented on the draft Articles of the Constitutional Treaty on the external actions of the European Union by stating: ‘I welcome the draft proposals regarding the CFSP. The progressive development and progressive identification of questions of general interest and common external action will accord to the EU the same political weight in global processes as the Union has economically. The Union will have to be capable to cope with the challenge of the new world order and to play an increasing role in shaping it. I fully support the establishment of the post of Foreign Minister. However, I have doubts whether a single person would be able to cope with all the workload proper to his or her responsibilities. Preserving the principle of the equality of the Member States While fully supportive of the EU's own defense capacities, I would however like to express my concern regarding the provisions of Article 30 and Article 20 of Part II. They both contain the dangerous elements of the twospeed or nuclear Europe. I believe, we all want a strong European Union. But the EU’s Security and Defense Policy has to be credible. This is a relatively new understanding, and therefore, it is particularly important that the agreed policy is substantiated by real capabilities and the political resolve to use them. The objectives need to be realistic and based on the means and capabilities within the EU’s reach. EU relations with transatlantic structures. Respect for existing arrangements Recently, the EU and NATO signed an agreement on arrangements allowing for closer cooperation between the EU and transatlantic structures. We must avoid the duplication of functions and resources. Thirdly, the adoption of the Constitutional Treaty should strengthen the unity of the EU, and the principle of equality of its Member States has to be respected. Self-selection, especially if based on the criteria of military capabilities, would have a discriminatory effect. Such a provision would not unite the Member States – it would divide them into first and secondclass Europeans, which I cannot accept.’
248
International Law 2003 (Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). 5/15 On 31 May 2003 Mrs Sandra Kalniete, Foreign Minister, the representative of the Latvian government at the Convention, commented on the Draft Constitutional Treaty in regard of the EU Charter of Fundamental Rights by stating: ‘The Charter of Fundamental Rights contains the same values as those, which are rooted in the constitutional traditions of the Member States. The insertion of the Charter into the Constitutional Treaty of the EU would mean a step forward towards narrowing the gap between EU institutions and citizens. However, consensus within the Convention has still not been reached on how to include the Charter into the Constitutional Treaty. The Working Group recommended giving the Charter a legally binding status by including it in the Constitutional Treaty. I believe that it is very important for EU citizens and governments to have the legal certainty of the Charter and its implications. Therefore incorporation of the Charter [in the Treaty] requires action on a number of delicate points. The translation of these points into adequate legal language requires great care. Therefore, to provide a unified implementation of the provisions of the Charter, the Commentary set out in a declaration and annexed to the Treaty should be elaborated. It might be possible to develop a compromise solution, allowing the incorporation of a legally binding Charter into the Treaty, while preserving the most important elements of the safeguards. I think that inclusion of the Charter in a form of a Protocol could be one of the best possible compromises.
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). 5/16 On 31 May 2003 Mrs Sandra Kalniete, Foreign Minister, the representative of the Latvian government at the Convention, commented on the Draft Constitutional Treaty in regard of the enhanced cooperation matters by stating: 249
Republic of Latvia Materials on ‘Firstly, I strongly welcome the abolition of the current pillar system, which will entail placing enhanced cooperation within a single framework structure. I believe that this will ensure greater clarity and simplicity in the Union’s operations and, as well as the more precise application of enhanced cooperation. Secondly, support should be given to strengthening the role of the Commission in enhanced cooperation. The Commission should play the role of arbitrator between participating and non-participating States. Furthermore it should guarantee that the interests of the Union as a whole are protected. Therefore I welcome the establishment of a single decisionmaking procedure for actions falling within the current first and third pillars. In accordance to this single procedure, the Commission would have discretionary power to initiate and take decisions on subsequent participation. Finally, I think that the principle of the minimum threshold number of the Member States initiating enhanced cooperation should be maintained as set out in the Treaty of Nice. Therefore, I would like to propose that a minimum threshold of one half instead of one third of the Member States be fixed, as proposed in the draft Constitutional Treaty.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) ). 5/17 On 31 May 2003 Mrs Sandra Kalniete, Foreign Minister, the representative of the Latvian government at the Convention, commented on the Draft Constitutional Treaty in regard of economic governance matters by stating: ‘In considering the articles of the draft Constitutional Treaty concerning economic governance in the European Union, we cannot avoid speaking about fiscal provisions and taxation policy. The issue of taxation is a highly important and sensitive matter for every state, insofar as it constitutes a vital relationship between the state and its citizens. Tax policy determines how resources flow from individuals or organizations to the state and how resources are distributed. Given the different structures of tax systems and development and welfare levels across the European Union, the flexibility to determine taxation policy is an efficient and powerful instrument that States can use to boost their national economies and increase their economic competitiveness.
250
International Law 2003 The current degree of harmonisation of tax policy gives Member States the opportunity to establish an adequate fiscal framework to suit their domestic requirements. This provides the impetus for the less prosperous Member States to establish the necessary economic preconditions for the so-called ‘catching-up’ process. As monetary policy is formulated and conducted from the perspective of the euro zone and therefore does not take countryspecific circumstances into account, a fiscal policy remains the only available tool with which governments can address local economic issues. Given the above, I strongly urge the principle of unanimity voting in the Council on taxation matters be adopted and enshrined in the Constitutional Treaty. My second point concerns the proposed formalisation of the Euro Group in a draft Article of the Treaty in the form of a Protocol. I believe that due attention should be given to the commitments and abilities of the new Member States with regard to their prospective membership in the Monetary Union. The new Member States will not be allowed to the join Euro zone earlier than 2 years after accession, even if they have met the Maastricht criteria. Consequently, the formalisation of the Euro Group will mean that around half of the Member States will be outside of the Group, including all the new Member States. Those Member States will be left with a rather limited influence on the EU decision-making process as regards monetary policy. This could be a move towards a multi-speed EU. Therefore the issue of formalising the Euro Group should be considered in light of the need to involve the new Member States, which are committed to being involved and which already meet the criteria which would make them eligible to shape EU monetary policy.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). 5/18 On 10 October 2003 Dr. Vaira VƯƷe-Freiberga, President of Latvia, in her address at the European Parliament observed in respect to the reforms of the European Union: ‘For Latvia, one fundamental aspect of the principle of equality lies in each country’s right to nominate a member of the European Commission. We believe that all Commissioners, without exception, must be equal in every
251
Republic of Latvia Materials on respect, and that all should have the right to vote. How else will the Commission remain a collegial institution that represents the common interests of its Member States? Another manifestation of the EU’s deeprooted principle of equality can be seen in the rotating presidency of the Council of Ministers, which Latvia believes should remain as one of the Council’s primary features. This rotating presidency provides each Member State, regardless of its size, with the invaluable opportunity to lead and to coordinate the work of the EU. The principle of equality among the EU’s Member States is also manifest in several other close forms of European integration, including that of monetary policy with the implementation of the euro, and that of internal affairs and justice through the Treaty of Schengen. These aspects of EU membership must remain open to all Member States, regardless of the number of inhabitants each country may have or the extent of financial resources at its disposal. In this regard Latvia has carefully considered the Convention’s proposals concerning a common European defence policy. We believe that all Member States must have an equal say in the adoption of decisions that concern our continent’s security. In Latvia’s opinion, the division of the EU’s constituent members as a function of their military capabilities would not be conducive to the cohesiveness of the European Union. Latvia shares the common wish of the EU’s current and future Member States to create a strong and united European Union. It is therefore essential for the EU to work as effectively as possible, to make full use of its existing institutions, and to precisely define the functions of any new institutions that are to be created. Any division of competencies between the President of the European Council, the President of the European Commission and the Foreign Minister of the European Union must be clear and unambiguous. Otherwise we run the risk of undermining the existing institutional balance of the EU. If the post of President of the European Council is eventually created, then Latvia believes that his or her principal mandate must lie in coordinating the internal work of the Council and in preparing the agenda of the Council’s meetings. In other words, the new Council President should undertake those tasks that up until now have been performed by the Prime Minister of the EU’s presiding country. Since both the President of the European Council and the Foreign Minister of the European Union will represent the EU internationally, we must ensure that their mandates do not overlap. There must be no doubts about
252
International Law 2003 when the Foreign Minister can act on his or her own initiative, and when he or she must consult with the Council of Ministers. In order for the European Union to operate with a maximum degree of efficiency, it must be equipped with simple and straightforward decisionmaking procedures. Latvia supports the Convention’s proposal to implement a double majority voting system within the European Council and Council of Ministers. This uncomplicated scheme, where each country is accorded one vote, would also be easily understood by the EU’s inhabitants, unlike the qualified voting system as defined in the Treaty of Nice. However, Latvia believes that the double majority voting system would manifest itself most effectively with the implementation of parity between the majority of countries and the majority of inhabitants, involving at least half of the EU’s Member States and half of its inhabitants. Regarding the future number of deputies in the European Parliament, Latvia firmly believes that it would not be desirable to reduce the minimum number of deputies representing any one country from five to four. Such a measure would significantly reduce the ability of Latvia and other small EU member states to take part in the European Parliament’s decision-making processes.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). Part Six: I. The individual (including the corporation) in international law – nationality 6/1 The ECtHR in the judgment of Slivenko v. Latvia observed in respect to the concept of nationality in Latvian law: ‘Latvian laws use the term ‘citizenship’ (pilsonƯba) to denote the nationality of a person. In the official English translation of the domestic statutes, the term ‘nationality’ is sometimes used in brackets alongside the term ‘citizenship’. 1.’The Citizenship Act is based on two principles: the principle of jus sanguinis and the doctrine of State succession in matters of international and constitutional law. Accordingly, with certain exceptions, only those persons who had Latvian citizenship on 17 June 1940 (the date on which Latvia came under Soviet domination) and their descendants are recognised ipso jure as Latvian citizens (Article 2 § 1). The fact of having been born within Latvian territory or having been resident there for a long period does
253
Republic of Latvia Materials on not in itself confer Latvian citizenship; accordingly, citizens of the former USSR who arrived in Latvia during the Soviet era (1944-1991) and their descendants were not automatically granted Latvian citizenship after Latvia had regained its independence. 2. Furthermore, the Citizenship Act provides for the possibility of becoming a Latvian citizen by means of naturalisation, in accordance with the conditions and procedure laid down in Chapter II of the Act. Persons seeking naturalisation as Latvian citizens must have been lawfully resident in Latvia for at least the past five years, have a legal source of income, pass an examination testing proficiency in Latvian, be familiar with the Latvian Constitution and national anthem, have a basic knowledge of Latvian history, swear an oath of allegiance and, where appropriate, renounce their existing citizenship (Article 12).’
(Slivenko v. Latvia, no 48321/99, Judgment of 9 October 2003, paras.49, 51, 52). 6/2 The ECtHR in the decision of Fedorova et autres c. Lettonie considered a claim that not granting Latvian nationality to nationals of former Soviet Union amounted to a breach of a right to nationality, firstly observing its lack of competence to rule on this matter: ‘Dans la mesure où les requérants allèguent une violation de leur droit à une nationalité, garanti à l’article 15 de la Déclaration universelle des Droits de l’Homme, la Cour rappelle que sa compétence se limite à l’application de la Convention et de ses Protocoles (article 19 de la Convention); par conséquent, elle n’est pas compétente pour contrôler le respect d’autres textes internationaux en matière des droits de l’homme, qu’ils soient universels ou régionaux (voir, par exemple, Gestra c. Italie, no. 21072/92, décision de la Commission du 16 janvier 1995, Décisions et rapports (DR) 80, p. 89). Or, un « droit à une nationalité » semblable à celui qui est inscrit à l’article 15 de la Déclaration précitée n’est garanti ni par la Convention ni par ses Protocoles. Il est vrai qu’un refus arbitraire de nationalité peut, dans certaines conditions, constituer une ingérence dans l’exercice des droits découlant de l’article 8 de la Convention (voir Karassev et famille c. Finlande, n 31414/96, CEDH 1999-II).’ The ECtHR then continued to state that nationality of former Soviet Union is not a valid base to claim nationality of the Republic of Latvia:
254
International Law 2003 ‘Toutefois, la question de savoir si l’intéressé a ou non un droit défendable à la nationalité d’un Etat doit en principe être résolue par référence au droit interne de cet Etat. En l’espèce, il ressort clairement des pièces du dossier que les requérants possédaient initialement la citoyenneté de l’Union soviétique, Etat qui disparut en 1991, et qu’ils n’ont, à aucun moment, eu la nationalité lettonne. Rien n’indique non plus qu’ils pouvaient légalement prétendre à la nationalité lettonne selon les lois de cet Etat ni que celle-ci leur ait été refusée arbitrairement (voir, mutatis mutandis, Slivenko c. Lettonie [GC] (déc.), no. 48321/99, §§ 77-78, CEDH 2002-II).’
(Fedorova et autres c. Lettonie, no. 69405/01, decision of 9 October 2003). Part Six: IV. The individual (including the corporation) in international law – members of minorities (See 6/6) Part Six: VI. The individual (including the corporation) in international law - refugees 6/3 On 6 November 2003, UN Human Rights Committee, in consideration of the Latvia’s report submitted under Article 40 of the International Covenant on Civil and Political Rights, in its Concluding observations observed: ‘9. While welcoming the entry into force of the new asylum law, the Committee remains concerned at the short time limits, in particular for the submission of an appeal under the accelerated asylum procedure, which raises concerns regarding the availability of an effective remedy in cases of refoulement (Articles 6, 7 and 2.3). The State party should ensure that the time limits under the accelerated asylum procedure be extended, in particular for the submission of an appeal.’
(CCPR/CO/79/LVA, 6 November 2003, available at the Internet site of UN HRC, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.79.LVA.En? Opendocument). 6/4 On 20 November 2003, UN Committee against Torture, in consideration of the Latvia’s state report submitted under Article 19 of the Convention 255
Republic of Latvia Materials on Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, observed: ‘The Committee notes with appreciation the ongoing efforts by the State party aimed at strengthening human rights in Latvia. In particular, the Committee welcomes the following: a) legislative measures . . . the entry into force of a new Asylum Law in September 2002, aimed at bringing the national asylum system into further alignment with the European Union acquis on asylum and related international standards. The new Asylum Law also introduced two forms of complementary protection (‘alternative status’) for asylum-seekers. . . . The Committee expresses concern about the following: . . . e) the fact that the new Asylum Law stipulates that neither of the two ‘alternative status’ for asylum-seekers shall be granted to a person who has arrived in Latvia from a country in which he/she could have asked and received protection. Furthermore, the Committee is concerned at the long periods that asylum-seekers may spend in detention after the rejection of their request of asylum;’
(CAT/C/CR/31/3, 20 November 2003, available at the Internet site of UN CAT, http://www.ohchr.org/tbru/cat/Latvia.pdf). Part Six: VII. A. The individual (including the corporation) in international law – immigration and emigration, extradition, expulsion, asylum – immigration and emigration 6/5 On 20 November 2003, UN Committee against Torture, in consideration of the Latvia’s State Report submitted under Article 19 of the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, observed: ‘The Committee notes with appreciation the ongoing efforts by the State party aimed at strengthening human rights in Latvia. In particular, the Committee welcomes the following: a) legislative measures
256
International Law 2003 . . . the entry into force of a new Immigration Law in May 2003, which inter alia provides a maximum length of detention for foreigners arrested in violation of the Immigration Law and the right of an arrested foreigner to submit a complaint to a prosecutor, to contact the consulate and have access to legal aid.’
(CAT/C/CR/31/3, 20 November 2003, available at the Internet site of UN CAT, http://www.ohchr.org/tbru/cat/Latvia.pdf). Part Six: VII. D. 1. The individual (including the corporation) in international law – immigration and emigration, extradition, expulsion, asylum – asylum – territorial asylum (See 6/3, 6/4) Part Six: VIII. B. The individual (including the corporation) in international law - human rights and fundamental freedoms – general concept (See 4/5) Part Six: VIII. B. The individual (including the corporation) in international law - human rights and fundamental freedoms – under United Nations treaty system 6/6 On 6 November 2003, UN Human Rights Committee, in consideration of the Latvia’s report submitted under Article 40 of the International Covenant on Civil and Political Rights, in its Concluding Observations observed: ‘4. The Committee welcomes the significant progress in legislative and institutional reform since the review of the first periodic report in 1995, in particular the inclusion in the Constitution of Chapter VIII on Fundamental Human Rights, as well as the establishment of a Constitutional Court and the introduction of the right of individuals to launch a constitutional complaint. The Committee notes with great interest the rulings by the Constitutional Court removing from the national legal system norms conflicting with international human rights standards. Other positive legislative reforms include in particular the adoption and entry into force of a new Asylum Law, dealing with the question of non-refoulement; the labour law; amendments to the election law, removing the language requirement to stand for election; and to legislation on trafficking in human beings. The Committee also welcomes the creation of the National
257
Republic of Latvia Materials on Programme for Integration of Society in Latvia and the Society Integration Fund. 5. The Committee welcomes the establishment of the National Human Rights Office and particularly its use of the mandate to submit complaints to the Constitutional Court. 6. The Committee welcomes amendments to national legislation to harmonise it with the provisions of the Second Optional Protocol. It encourages the State party to accede to the Second Optional Protocol. ... 7. The Committee is concerned about allegations of ill-treatment of persons by police officers, as well as the lack of statistical data on the number, details and outcome of cases of ill-treatment by police officers, although noting that as of 2003, statistics on physical ill-treatment by police officers is being systematised (Article 7). The State party should take firm measures to eradicate all forms of police ill-treatment, including prompt investigations, prosecution of perpetrators and the provision of effective remedies to the victims. 8. The Committee is concerned that no independent oversight mechanism exists for investigating complaints of criminal conduct against members of the police, which could contribute to impunity for police officers involved in human rights violations (Articles 2, 7, 9). The State party should establish an independent body with authority to receive and investigate all complaints of excessive use of force and other abuse of power by the police. ... 10. While acknowledging the State party’s admission that the average length of pre-trial detention is unsatisfactory and its attempt to remedy the situation in the proposed code of criminal procedure, the Committee is concerned about the length of pre-trial detention, which is often incompatible with articles 9 (3) and 14. While being aware of the draft criminal procedure law intended, inter alia, to speed up trials, the Committee remains concerned at the length and frequency of pre-trial detention, particularly with regard to juvenile offenders. The State party should take all legislative and administrative measures to ensure compliance with articles 9 (3) and 14 as a matter of priority. 11. The Committee notes the information provided by the delegation as to the improvement of the situation of overcrowding in prisons, as well as measures envisaged by the state party to increase resort to alternative forms of punishment. However, in view of reports that overcrowding in prisons continues to be a concern, the Committee should be provided with specific information to indicate to what extent overcrowding in prisons is a problem (Article 10).
258
International Law 2003 The State party should continue to take measures to address overcrowding in prisons and to ensure compliance with the requirements of article 10. 12. The Committee notes the efforts made by the State party to address the situation regarding trafficking in persons, in particular by amending legislation, the adoption of a preventive strategy by providing information to potential victims, and through international cooperation. However, the Committee is concerned about the slow progress made in implementing those policies and notes that it has received only limited statistical information from the State party (Articles 3, 8). The State party should take measures to combat this practice, which constitutes a violation of several Covenant rights, including article 3 and the right under article 8 to be free from slavery and servitude. Strong measures should be taken to prevent trafficking and to impose sanctions on those who exploit women in this way. Protection should be extended to women who are victims of this kind of trafficking so that they may have a place of refuge and an opportunity to give evidence against the persons responsible in criminal or civil proceedings. The Committee encourages the State party to continue its cooperative efforts with other States to eliminate trafficking across national borders. The Committee wishes to be informed of the measures taken and their result. 13. While noting the efforts made by the State party to combat domestic violence, particularly in the area of legislative reform, the Committee regrets the lack of detailed information on the nature of the problem. The Committee is concerned at reports that domestic violence persists (Articles 3, 9, 26). The State party should adopt the necessary policy and legal framework to combat domestic violence, as envisaged, inter alia, by the draft programme on the implementation of gender equality. Furthermore, the Committee recommends that the State party establish crisis centre hotlines and victim support centres equipped with medical, psychological, legal and emotional support. In order to raise public awareness, it should disseminate information on this issue through the media. 14. The Committee notes that discrimination against women with regard to remuneration persists, notwithstanding the measures taken by the government to guarantee equal treatment, including employment law, and the programme on the implementation of gender equality. The Committee regrets that insufficient information was provided by the state party in regard to the number and results of cases brought and whether compensation has been paid. (Articles 3, 26).
259
Republic of Latvia Materials on The State party should take all necessary measures to ensure equal treatment of women and men in the public and private sectors, if necessary through appropriate positive measures, in order to give effect to its obligations under articles 3 and 26. 15. The Committee notes with satisfaction that in 2002, a new law on alternative service entered into force, which provides for the right to conscientious objection. However, the Committee remains concerned that, pending a change in the conscription law, the duration of alternative service is up to twice that of military service and appears to be discriminatory (Article 18). The State party should ensure that the alternative service is not of a discriminatory duration. 16. While noting the measures taken by the State party to make the naturalisation process more accessible and increase the rate of naturalisation of non-citizens, the Committee is concerned about the limited results of these policies, with many candidates not even initiating the procedure. The Committee takes note of the different reasons underlying this phenomenon, but considers that it has adverse consequences in terms of enjoyment of Covenant rights, and that the State party has a positive duty to ensure and protect those rights. Furthermore, the Committee is concerned at the possible obstacles posed by the requirement to pass a language examination. The State party should further strengthen its efforts to effectively address the lack of applications for naturalisation as well as possible obstacles posed by the requirement to pass a language examination, in order to ensure full compliance with articles 2 of the Covenant. 17. The Committee is concerned at the low level of registration as citizens of children born in Latvia after 21 August 1991, to non-citizen parents (Article 24). The State party should take all necessary measures to further encourage registration of children as citizens. 18. With regard to the status of non-citizens, the Committee notes the policy of the Government to further social integration through naturalisation. However, the Committee is concerned about the large proportion of non-citizens in the State party, who by law are treated neither as foreigners nor as stateless persons but as distinct category of persons with long-lasting and effective ties to Latvia, in many respects comparable to citizens but in other respects without the rights that come with full citizenship. The Committee expresses its concern over the perpetuation of a situation of exclusion, resulting in lack of effective enjoyment of many
260
International Law 2003 Covenant rights by the non-citizen segment of the population, including political rights, the possibility to occupy certain state and public positions, the possibility to exercise certain professions in the private sector, restrictions in the area of ownership of agricultural land, as well as social benefits (Article 26). The State party should prevent the perpetuation of a situation where a considerable part of the population is classified as ‘non-citizens’. In the interim, the State party should facilitate the integration process by enabling non-citizens who are long-term residents of Latvia to participate in local elections and to limit the number of other restrictions on non-citizens in order to facilitate participation of non-citizens in public life in Latvia. 19. The Committee is concerned about the impact of the state language policy on the full enjoyment of rights stipulated in the Covenant. Areas of concern include the possible negative impact of the requirement to communicate in Latvian except under limited conditions, on access of nonLatvian speakers to public institutions and communication with public authorities (Articles 26). The State party should take all necessary measures to prevent negative effects of this policy on the rights of individuals under the Covenant, and, if required, adopt measures such as the further development of translation services. 20. While noting the explanation provided by the State party for the adoption of the Education Law of 1998, particularly the gradual transition to Latvian as the language of instruction, the Committee remains concerned about the impact of the current time-limit on the move to Latvian as the language of instruction, in particular in secondary schools, on Russian speakers and other minorities. Furthermore, the Committee is concerned about the distinction made in providing state support to private schools based on the language of instruction (Articles 26, 27). The State party should take all necessary measures to prevent negative effects on minorities of the transition to Latvian as the language of instruction. It should also ensure that if state subsidies are provided to private schools, they are provided in a non-discriminatory manner. 21. The Committee is concerned about the social and economic situation of the Roma minority and its impact on the full enjoyment of their rights under the Covenant, as well as the potentially negative effect on them of the present regulations regarding the entry of ethnic origin in passports and identity documents. (Articles 2, 26, 27). The State party should take steps to remove obstacles to the practical enjoyment by the Roma of their rights under the Covenant, and, in
261
Republic of Latvia Materials on particular, abolish the provisions allowing for entry of ethnic origin in passports and identity documents.’
(CCPR/CO/79/LVA, 6 November 2003, available at the Internet site of UN HRC, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.79.LVA.En? Opendocument). 6/7 On 20 November 2003, UN Committee against Torture, in consideration of the Latvia’s State Report submitted under Article 19 of the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, observed: ‘The Committee notes with appreciation the ongoing efforts by the State party aimed at strengthening human rights in Latvia. In particular, the Committee welcomes the following: a) legislative measures: - the establishment of the Constitutional Court in 1996 and the inclusion in the Constitution of a Chapter VIII dedicated to Fundamental Human Rights; - the establishment of the National Human Rights Office in 1995, which has the mandate inter alia to review complaints of human rights violations, as well as to submit cases before the Constitutional Court in case it finds any provision at variance with the Constitution of Latvia; . . . - the entry into force of a new Criminal Law, which introduced the concept of progressive execution of sanctions and established alternative sanctions, with a view to reduce the problem of overcrowding of prisons; - the draft new Criminal Procedure Law that aims at simplifying the legal proceedings and would, inter alia, decrease the time period to bring a suspect before a judge from 72 to 48 hours; - the draft new Amnesty Law, providing either for the release or the reduction of the term of imprisonment for those groups at risk, such as minors, pregnant women, women with infant children, disabled persons and elderly; b) administrative measures:
262
International Law 2003 - the adoption in 2002 of the Regulation on the Internal Rules of the Remand Prisons, setting standards for conditions of detention and basic rights and obligations of detainees; - the transfer, as of November 2003, of all Latvian prisons under the surveillance of trained professional guards; - the setting up of training programmes, in accordance with article 10 of the Convention, for law-enforcement and judicial personnel. . . . The Committee expresses concern about the following: a) allegations of serious ill-treatment of persons, which in some cases could be considered as amounting to torture, by members of the police especially at the time of apprehension and interrogation of suspects; b) the lack of independence and impartiality of the Internal Security Office of the State Police, competent to deal with complaints on alleged violence by police officers; c) the conditions of detention in places of deprivation of liberty, especially police stations and short-term detention isolators; d) the length of legal proceedings and the excessive periods of pre-trial detention, especially in short-term detention isolators; . . . f) the overcrowding in prisons and other places of detention, taking into account inter alia the potential risk of this situation for the spread of contagious diseases; g) although the draft new Criminal Procedure Law has addressed many of the existing shortcomings, the Criminal Procedure Law currently in force does not foresee the right of a detainee to contact family members. Concern is also expressed about the information that access to a doctor of choice is subordinated to the approval of the authorities; h) allegations that in many cases, even if provided by law, access to lawyer is denied or delayed in practice to persons in police custody, and that defendants have to pay back legal aid in cases where their case is lost; i) the number of persons who lost their legal status as citizens or ‘noncitizens’ and became ‘illegal’ after having temporarily left the country.’
(CAT/C/CR/31/3, 20 November 2003, available at the Internet site of UN CAT, http://www.ohchr.org/tbru/cat/Latvia.pdf).
263
Republic of Latvia Materials on 6/8 On 10 December 2003, UN Committee on the Elimination of Racial Discrimination, in consideration of the Latvia’s State Report submitted under Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination, in its Concluding observation remarked that: ‘3. The Committee welcomes the ongoing efforts of the State party to introduce legislative reform in accordance with international standards. In particular, the Committee notes the amendment to the Law on the Constitutional Court allowing individuals to submit complaints to the Court; the new Labour Law adopted in June 2001 providing for equal rights without discrimination in purpose or effect; and the amendments to the Election Laws adopted in May 2002. 4. The Committee also welcomes the adoption of the new Law on Personal Identification Documents removing the requirement to record a person’s ethnic origin, as recommended by the Committee in its previous concluding observations (CERD/C/304/Add.79, para. 24). 5. The Committee is encouraged by the efforts of the State party to support and facilitate the process of naturalisation through legal measures and targeted projects. 6. The Committee welcomes the National Programme for the Integration of Society in Latvia adopted in February 2001 and the establishment in 2002 of the post of Minister for Special Assignments for Societal Integration Affairs tasked with coordinating anti-discrimination, minority and social integration policies. 7. The Committee welcomes the Supreme Court ruling of 6 June 2003 declaring unconstitutional section 19, paragraph 5, of the Law on Radio and Television which restricts the airtime of broadcasts in languages spoken by minorities in Latvian private media. . . . 8. The Committee is concerned that the legal provisions defining racial discrimination are not in full conformity with article 1 (1) of the Convention. While acknowledging that amendments to the 2001 Labour Law are being prepared that will define indirect discrimination, the Committee notes that basing the finding of indirect discrimination on a quantitative condition is not in accordance with the Committee’s general recommendation XIV. Furthermore, it notes that the relevant provisions of the Labour Law and the Criminal Law lack reference to certain grounds of discrimination enumerated in the Convention, and that these provisions do
264
International Law 2003 not fully cover civil, political, economic, social, cultural and other fields of public life, as required by the Convention. The Committee recommends that the State party pursue its efforts with regard to the preparation of a comprehensive anti-discrimination law and of amendments to the Labour Law. It urges the State party to incorporate fully the definition of racial discrimination stipulated in article 1 (1) of the Convention, into its legislation. 9. The Committee notes the entry into force in September 2000 of the State Language Law aimed at promoting the Latvian language and better integration of members of ethnic minorities into Latvian society. The Committee is concerned at the possible negative effects of a narrow and strict interpretation of this legislation. Furthermore, the scope of language requirements in the State Language Law in relation to employment, particularly in the private sector, may lead to discrimination against minorities. The Committee recommends that the State party ensure that the State Language Law does not result in unnecessary restrictions that may have the effect of creating or perpetuating ethnic discrimination. The Committee calls on the State party to ensure that vulnerable groups, such as prisoners, sick and poor persons, among non-Latvian speakers have the possibility of communicating with the relevant authorities through provision of, if necessary, translation facilities. 10. The Committee is concerned that the law of the State party does not fully respond to the requirements of article 4 of the Convention. The Committee notes that the State party has failed to effectively prohibit all organised and other propaganda activities and to recognise participation in such activities as an offence punishable by law, in accordance with article 4 (b) of the Convention. The Committee recommends that the State party review its domestic law in the light of its general recommendation XV concerning the implementation of article 4 of the Convention, and that it adopt specific legislation on organised and other propaganda activities that promote and incite racial discrimination, irrespective of the legal status of the group or organisation. 11. The Committee is concerned at the low number of cases initiated relevant to article 4 and recommends that the State party consider whether the limited numbers of complaints is not the result of the victims’ lack of awareness of their rights, a lack of confidence on the part of individuals in the police and judicial authorities, or the authorities’ lack of attention or sensitivity to cases of racial discrimination. The Committee requests that the State party include in its next periodic report disaggregated statistical information on cases reported to the police, prosecutions launched and penalties imposed with respect to offences
265
Republic of Latvia Materials on which relate to the dissemination of ideas based on superiority or hatred, incitement to racial discrimination, racial violence and participation in such acts, as stated in article 4 of the Convention. 12. The Committee recognises that political rights can be legitimately limited to citizens. Nevertheless, noting that most non-citizens have been residing in Latvia for many years, if not for their whole lives, the Committee strongly recommends that the State party consider facilitating the integration process by making it possible for all non-citizens who are long-time permanent residents to participate in local elections. 13. While noting the measures taken by the State party to increase the rate of naturalisation of non-citizens, the Committee remains concerned at the limited results of these efforts. The Committee is concerned at the growing number of persons who fail the language examination and at the possible lack of availability or accessibility of Latvian language instruction for all those wishing to benefit from this facility. The Committee recommends that the State party further study the underlying reasons for the low level of naturalisation applications with a view to devising strategies targeting specific groups of potential applicants. The Committee stresses that positive measures should be employed to attract non-citizens to the process, while ensuring that any measures taken do not adversely affect their current status. It also strongly urges the State party to ensure the availability of Latvian language instruction, to the extent possible, for those wishing to avail themselves of such opportunities. 14. The Committee regrets the lack of disaggregated data in the State party report with respect to the enjoyment of the economic, social and cultural rights enumerated in article 5 (e) of the Convention. The Committee invites the State party to provide in its next report data, disaggregated by ethnicity and sex, on the enjoyment of the rights enumerated in article 5 (e) of the Convention, taking into account, inter alia, its general recommendations XXV on gender-related dimensions of racial discrimination and XXVII on discrimination against Roma. The Committee expresses concern with regard to the restrictions imposed upon non-citizens in the field of employment. The Committee urges the State party to reduce the list of occupations restricted to citizens and to keep it under review, with a view to ensuring that the enjoyment of the right to work is not unduly limited. 15. While recognising the importance of the education system in creating a coherent society, the Committee is concerned that the educational reform that will introduce bilingual education in all minority schools by September 2004 may cause problems for linguistic minorities in the educational system if it is implemented in the proposed time frame.
266
International Law 2003 The Committee encourages the State party to remain attentive and flexible to the needs and abilities of the persons primarily affected and concerned by the reform. The importance of maintaining a close dialogue with the schools and local communities, including both parents and children, is paramount in the process. It further urges the State party to monitor the reform process closely in order to ensure that a high quality of education is maintained by, inter alia, considering an extension of the transition period to bilingual education and preventing any negative effects that might otherwise arise. 16. While recognising the possibility of establishing private schools offering, inter alia, education in minority languages, the Committee urges the State party to ensure that the manner in which funding to private schools is provided is in conformity with the Convention. 17. The Committee regrets the lack of any information with respect to article 5 (f) of the Convention relating to the right of access to any place or service intended for use by the general public. The Committee requests the State party to include information on the implementation of article 5 (f) of the Convention, as recommended in its general recommendation XX. It further recommends that the State party ensure that the relevant provisions are incorporated into the new antidiscrimination legislation which is currently being drafted. 18. While noting that the State party is in the process of improving its legislation with a view to providing effective protection and remedies against any acts of racial discrimination, including the right to seek reparation for discrimination, the Committee is concerned at the very low level of awareness among the population of such a possibility. The Committee recommends that the State party intensify its efforts to adopt and improve legislation in this respect. The State party is further encouraged to publicise the availability of legal remedies with a view to reaching out to the most vulnerable segments of society. 19. The Committee is concerned at the persistence of negative racial and ethnic stereotypes and notes that educational and training activities undertaken by the State party may not have been sufficient to combat discriminatory attitudes and practices. The Committee recommends that the State party pursue its efforts to combat prejudices and promote understanding and tolerance through a broad range of measures targeting both professionals working with and persons belonging to minority groups, as well as the general public. The Committee encourages the State party, through the broad-based participatory drafting process of the envisaged National Plan of Action to implement the Durban Declaration and Plan of Action, to create awareness with regard to the diverse issues relating to racial discrimination.
267
Republic of Latvia Materials on 20. The Committee encourages the State party to consult with a broader range of civil society organisations working in the area of human rights, and specifically in the field of combating racial discrimination, during the preparation of the next periodic report. 21. The Committee welcomes the information that the State party is considering making the optional declaration provided for in article 14 of the Convention and looks forward to receiving further information in this respect in the next periodic report. 22. The Committee strongly recommends that the State party ratify the amendments to article 8, paragraph 6, of the Convention, adopted on 15 January 1992 at the Fourteenth Meetings of States Parties to the Convention and endorsed by the General Assembly in its resolution 47/111. In this connection, the Committee refers to General Assembly resolution 57/194 of 18 December 2002, in which the Assembly strongly urged States parties to accelerate their domestic ratification procedures with regard to the amendment and to notify the Secretary-General expeditiously in writing of their agreement to the amendment.’
(CERD/C/63/CO/7, 10 December 2003, available at the Internet site of UN CERD, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.63.CO.7.En? Opendocument). (See also 4/7, 5/5) Part Six: VIII. C. The individual (including the corporation) in international law - human rights and fundamental freedoms – under Council of Europe treaty system 6/9 The ECtHR declared the claim in Grišankova et Grišankovs c. Lettonie inadmissible by declaring that the Constitutional Court in the specific case was a domestic remedy that needed to be exhausted before going to an international court: ‘A titre préliminaire, la Cour reconnaît que l’article 34 de la Convention habilite les particuliers à soutenir qu’une loi viole leurs droits par ellemême, même en l’absence d’acte individuel d’exécution, s’ils risquent d’en subir directement les effets (voir, par exemple, Johnston et autres c. Irlande, arrêt du 18 décembre 1986, série A no 112, p. 21, § 42, Dudgeon c. Royaume-Uni, arrêt du 22 octobre 1981, série A no 45, pp. 18-19, § 41, et Norris c. Irlande, arrêt du 26 octobre 1988, série A no 142, p. 15, § 31). Toutefois, la Cour rappelle qu’en vertu de l’article 35 § 1 de la
268
International Law 2003 Convention, elle ne peut être saisie qu’après l’épuisement, par les requérants, des voies de recours internes, tel qu’il est entendu selon les principes de droit international généralement reconnus. La finalité principale de cette règle est de ménager aux Etats contractants l’occasion de prévenir ou de redresser les violations alléguées contre eux avant que la Cour n’en soit saisie (voir Selmouni c. France [GC], no 25803/94, § 74, CEDH 1999-V). Par ailleurs, l’article 35 § 1 exige l’épuisement des seuls recours effectifs et adéquats, c’est-à-dire de nature à porter directement remède aux griefs soulevés (voir, par exemple, Remli c. France, arrêt du 23 avril 1996, Recueil des arrêts et décisions 1996-II, p. 571, § 33). Dans la présente affaire, la Cour constate que la situation dont se plaignent les requérants ne résulte pas d’un acte individuel pris par une autorité publique à leur encontre, mais du texte même de la loi sur l’enseignement. A cet égard, la Cour observe que l’article 19-2 de la loi sur la Cour constitutionnelle, ajouté par la loi du 30 novembre 2000 et entré en vigueur le 1er juillet 2001, permet aux particuliers d’attaquer « une norme de droit non conforme à une norme d’un rang juridique supérieur » devant cette haute juridiction, lorsqu’ils estiment que celle-ci « porte atteinte à [leurs] droits au titre de la Constitution ». Or, le droit à l’instruction figure parmi les droits fondamentaux protégés par la Constitution lettonne (article 112). La Cour relève également que l’article 85 de la même Constitution et l’article 32 de la loi sur la Cour constitutionnelle autorisent cette juridiction à annuler une disposition législative ou réglementaire qu’elle estime contraire à la Constitution ou à une disposition de rang supérieur, et que cette Cour a déjà exercé ce droit dans neuf affaires portées devant elle par des particuliers. Une requête devant la Cour constitutionnelle lettonne constitue donc une voie de recours susceptible de remédier à la situation dénoncée. En d’autres termes, lorsque l’intéressé met en cause une disposition législative ou réglementaire lettonne comme étant contraire, en tant que telle, avec la Convention, et que le droit invoqué figure parmi ceux garantis par la Constitution lettonne, la saisine de la Cour constitutionnelle s’impose en principe avant celle de la Cour européenne des Droits de l’Homme. En l’espèce, il ressort des pièces du dossier que les requérants ont omis de contester la constitutionnalité des dispositions litigieuses de la loi sur l’enseignement par le biais d’une requête individuelle devant la Cour constitutionnelle, et qu’ils n’ont fourni aucun motif susceptible de mettre en doute l’efficacité de cette procédure. La Cour estime donc qu’ils disposent d’une voie de recours interne, qu’ils n’ont pas utilisée.
269
Republic of Latvia Materials on Il s’ensuit que ces griefs doivent être rejetés pour non-épuisement des voies de recours internes, en application de l’article 35 §§ 1 et 4 de la Convention.’
(Grišankova and Grišankovs c. Lettonie, no 36117/02, Decision of 13 February 2003). (See also 4/2-4, 4/6-8, 6/2) Part Six: VIII. B. The individual (including the corporation) in international law - human rights and fundamental freedoms – other aspects of human rights and fundamental freedoms 6/10 On 1 December 2003, Mrs Sandra Kalniete, Foreign Minister, addressed 11th Ministerial Council Meeting of the OSCE in Maastricht and remarked that: ‘I have to note with concern the ongoing human rights violations in the Chechen Republic of the Russian Federation that pose one of the greatest challenges in the human dimension in the OSCE region. Human rights situation in Chechnya is a matter for international concern and involvement. We are disappointed that despite the efforts of the Chairmanship it was not possible to reach an adequate agreement with the Russian Federation on a possible engagement of the OSCE in Chechnya.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). (See also 4/7, 5/15) Part Thirteen: I. International responsibility – general concept (See 1/2) Part Thirteen: II. A. 1. (a) International responsibility – States – the elements of responsibility (See 1/2)
270
International Law 2003 Part Thirteen: III. B. 2. International responsibility – criminal responsibility– responsible entities – entities other than States (e.g. individuals) 13/1 On 29 November 2003, the 22nd Session of Baltic Assembly adopted the Decision on the Support for the Proposal to the Parliamentary Assembly of the Council of Europe to Investigate and Condemn Internationally the Crimes of the Totalitarian Communist Regime that read: ‘The ideology of National Socialism was condemned by the international community at the Nuremberg Trials. Although the crimes of the totalitarian Communist regime are no less grave, they have not yet been evaluated. The Baltic Assembly supports the proposal of a group of the members of the Parliamentary Assembly of the Council of Europe to adopt a resolution condemning on international level the totalitarian Communist regime (document no. 9875 of 25 September 2003) and to establish for this purpose a politically independent committee the task of which is to compile and evaluate information about human rights violations as well as crimes against humanity during the totalitarian Communist regime.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/?id=4421 (01.01.2004)). Part Thirteen: IV. B. International responsibility – consequences of responsibility – consequences other than reparation 13/2 On 24 October 2003, Mrs Sandra Kalniete, Foreign Minister, addressed the International Donors’ Conference on Reconstruction in Iraq in Madrid and named the areas to which the Government has earmarked financial resources: ‘Fourthly, documentation of crimes committed during the totalitarian regime and the reconciliation process. It may seem difficult now, however reconciliation is very important. Every totalitarian regime leaves deep wounds in the memory of the people. We certainly know that the value of reconciliation should not be underestimated. Submitting to fair justice, those accused of committing crimes will help to heal the wounds.’
271
Republic of Latvia Materials on (Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). Part Sixteen: I. Use of force – prohibition of the use of force 16/1 On 12 March 2003, in making a statement before the Security Council, Mr. Gints Jegermanis, Permanent Representative to the Security Council, remarked: ‘Latvia regards the use of force as the last resort.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004). Part Sixteen: V. Use of force – use of force under the UN Charter 16/2 On 31 January 2003 Mrs Sandra Kalniete, Foreign Minister, made a statement about the disarmament of Iraq, which in part read: ‘Latvia has repeatedly stressed that Iraq must fully comply with its international obligations and get rid of its weapons of mass destruction, which present a clear threat to the world peace and security. The UN Security Council has demanded Iraq’s disarmament, and the Security Council should see to it that Saddam Hussein does what he is obliged to do. Over the last 12 years there have been 16 UN SC resolutions on Iraq, which have not discouraged Iraq from its weapons programs. It is time for Baghdad to comply, and it is time for the UN to take care of its credibility and enforce the compliance. UN SC resolution 1441 has offered Iraq the last chance to fulfill its previous commitments and disarm. It is the responsibility of Saddam’s regime to prove that this disarmament is taking place. Inspectors’ job is not to play ‘hide and seek’ with Iraqi authorities, inspectors are there to register the disarmament. Latvia urges Iraq to take advantage of this last chance presented by the UN SC resolution 1441, if Iraq does not want to take upon itself responsibility about military solution to the present crisis. Latvia will stand together with its allies as the international community enforces disarmament of Iraq. Allies can count on Latvia’s participation in the resolution of the crisis. Latvia’s air space will be available for the purposes of the coalition operations. We have considered our military
272
International Law 2003 resources that we can offer to such and operation, and we will be ready to contribute, should the need arise.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) ). 16/3 On 5 February 2003, Foreign Ministers of Albania, Bulgaria, Croatia, Estonia, Latvia, Lithuania, Macedonia, Romania, Slovakia and Slovenia made a statement in Vilnius (also referred to as the statement of the Vilnius Group countries), which in part read: ‘Earlier today, the United States presented compelling evidence to the United Nations Security Council detailing Iraq’s weapons of mass destruction programs, its active efforts to deceive UN inspectors, and its links to international terrorism. Our countries understand the dangers posed by tyranny and the special responsibility of democracies to defend our shared values. The transAtlantic community, of which we are a part, must stand together to face the threat posed by the nexus of terrorism and dictators with weapons of mass destruction. We have actively supported the international efforts to achieve a peaceful disarmament of Iraq. However, it has now become clear that Iraq is in material breach of U.N. Security Council Resolutions, including U.N. Resolution 1441, passed unanimously on November 8, 2002. As our governments said on the occasion of the NATO Summit in Prague: ‘We support the goal of the international community for full disarmament of Iraq as stipulated in the UN Security Council Resolution 1441. In the event of non-compliance with the terms of this resolution, we are prepared to contribute to an international coalition to enforce its provisions and the disarmament of Iraq.’ The clear and present danger posed by the Saddam Hussein’s regime requires a united response from the community of democracies. We call upon the U.N. Security Council to take the necessary and appropriate action in response to Iraq’s continuing threat to international peace and security.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004).
273
Republic of Latvia Materials on 16/4 On 20 March 2003, Saeima adopted a Statement on Latvia’s Support for the Implementation of UN Security Council’s Resolution No. 1441, which in part read: ‘Taking into account the Saeima decision of 19 February 1998 to support the efforts of the UN Security Council and UN members to ensure implementation of the UN Security Council Resolution No. 687 of 3 April 1991, as well as supporting the UN Security Council Resolution No. 1441 of 8 November 2002, the Saeima decides: To support the implementation of UN Security Council Resolution No. 1441 of 8 November 2002 and in accordance with paragraph 1, Article 5 of the Law ‘Participation of the National Armed Forces of Latvia in International Operations’ to allow the participation of units of the National Armed Forces of Latvia in international peace enforcement operations and in international humanitarian operations under the supervision of the military command of the armed forces of the international coalition, while observing the principle of voluntary participation of the military personnel.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) ). 16/5 During the Saeima discussions on the adoption of the Statement on Latvia’s Support for the Implementation of UN Security Council’s Resolution No. 1441, Mrs Sandra Kalniete, Foreign Minister, stated: ‘A few words about UN resolutions and the rights of the coalition partners to act in conformity with the international legislation. I will remind you the events that took place in 1990, when we were still a part of the Soviet Union. Then resolution 660 was adopted, which, I quote, “authorised Member States to use all necessary means to uphold and implement resolution and all subsequent relevant resolutions and to restore international peace and security in the area”.3 On the basis of this document 3
In making this statement Foreign Minister erred in fact. It was not United Nations Security Council resolution 660 (1990), but United Nations Security Council resolution 678 (1990) which in its paragraph 2 ‘[a]uthorises Member States cooperating with the Government of Kuwait unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace
274
International Law 2003 the international coalition could liberate the territory of Kuwait. “All necessary means” – use of military force is generally understood by that. This resolution is still in force, because ceasefire in Iraq was concluded only when the UN Security Council adopted the next resolution. Iraq undertook to fulfil it. And in this resolution Iraq undertook fully to disarm and to eliminate all weapons of mass destruction in its possession. This resolution also is still in force, even today. From the year 1990 17 resolutions have been adopted on the Iraq matters. And the last of them – resolution 1441 – again urges Iraq to cooperate with the UN weapons’ inspectors and to disarm voluntarily, fully and immediately.’ 4
16/6 Later in the debate, Edgars Jaunups, MP and a member of the Legal Affairs Committee, elaborated in more detail on the legal grounds of use of force against Iraq: ‘Chapter VII of the UN Charter grants to the UN Security Council the rights to authorise Member States to take such military actions as may be necessary for the restoration of international peace and security. In the case of Iraq the Security Council took such a step after Iraq’s invasion of Kuwait in 1990. Thus, for example, paragraph 2 of UN Security Council’s resolution 678 authorises Member States (I quote): ‘…use all necessary means to uphold and implement resolution and all subsequent relevant resolutions and to restore international peace and security in the area’. End of the quotation. Then as well as nowadays the international community by words ‘all necessary means’ understand also the use of military force. After the liberation of Kuwait UN Security Council adopted resolution 687, in which the measures that Iraq must undertake to restore international peace and security were also defined. The acceptance of these requirements by Iraq – that was the precondition for a formal ceasefire. Requirements included the destruction of all weapons of mass destruction in the arsenal of Iraq and agreement not to develop them further, and the unconditional cooperation with international weapons inspectors. It must be stressed that resolution and security to the area’. United Nations Security Council resolution 660 (1990) condemned the Iraqi invasion of Iraq (paragraph 1) and demanded immediate and unconditional withdrawal of all Iraq forces to the positions in which they were located on 1 August 1990 (paragraph 2). 4 Which probably is an incorrect translation of paragraph 9 of resolution 1441 that ‘. . . demands further that Iraq cooperate immediately, unconditionally, and actively with UNMOVIC and the IAEA’.
275
Republic of Latvia Materials on 687 did not the terminate authorisation of use of force of resolution 678, but only suspended its use, affirming that the authorisation is effective until the moment Iraq fulfils the preconditions of ceasefire. Although almost 12 years have passed from the moment of adoption of resolution 687, Iraq has never fulfilled the legitimate requirements of the international community. During this time UN Security Council has repeatedly condemned Iraq for non-fulfilment of international obligations and has adopted several resolutions in that regards. In the year 1993 and in the year 1998 with the authorisation of resolution 678 the coalition States made separate military engagements that were directed at eliminating threat for international peace and security. On 8 November 2002 UN Security Council unanimously adopted resolution 1441 the preamble of which makes and express reference to resolution 678, again affirming its being in force. In resolution 1441 Security Council affirmed the existence of threat for international peace and security, created by constant and willing breach of resolutions. In paragraph one of this resolutions UN Security Council has acknowledged that Iraq, I quote, “has been and is in material breach”, end of quotation, of obligations under resolution 687 and other relevant resolutions. The use of words “has been and is in material breach” in this resolution is very important, since exactly those words were used by the Security Council when using the authorisation of use of force stated in resolution 678 in the [1990s]. However, resolution 1441 does not provide for automatic use of force, namely UN Security Council did not provide for automatic use of authorisation of use of force. Resolution offered Iraq the final opportunity to comply with its obligations, otherwise, I quote, “it will face serious consequences as a result of its continued violations of its obligations”. Since the adoption of resolution 1441 UN Security Council has repeatedly considered the Iraq case, and it is evident that Iraq has not complied with its disarmament obligations since then. It also follows from the reports of the weapons inspectors. And, whatever differences in opinion may exist in UN Security Council, no Member of UN Security Council has challenged the fact that Iraq continues knowingly to breach its obligations. Moreover, resolution 1441 placed the burden of proof on Iraq, namely that Iraq must prove itself that it complies with its disarmament obligations. Therefore Iraq has not used the final opportunity granted to it by international community and continues to breach obligations disarmament, the compliance with which UN Security Council has already 12 years considered as being a necessary precondition for
276
the of for the
International Law 2003 restoration of international peace and security. One does not need to be an expert of international law to understand that the final opportunity does not mean pre-final opportunity and that serious consequences does not mean a greater number of the weapons’ inspectors or new resolutions. In such a situation resolution 678 provided for the use of authorisation of use of force, and this use in undoubtedly legitimate. It must be said that the British Attorney General and the governments of Netherlands and other countries have come to this legal conclusion of the fact. In making a decision of joining the coalition of already 45 countries in its attempts to restore international peace and security, we are in no way standing against the requirements and the spirit of the international law. From the point of view of moral, we are seeking to attain the highest purposes of the international law. . . . Finally I would like to remind you the events in connexion with the military activities against Iraq. The next day after the military activities by the British and the United States of America the then UN Secretary-General Butros Butros Gali stated (I quote) “The raid yesterday and the forces that carried out the raid have received a mandate from the Security Council according to Resolution 678, and the cause of the raid was the violation by Iraq of Resolution 687 concerning the ceasefire”. Like the UN SecretaryGeneral I can say that this action was taken and conforms to the resolutions of the Security Council and conforms to the Charter of the United Nations.’
(Latvijas VƝstnesis, 2003.gada 25.novembris (Latvian Herald, 25 November 2003), also available at the Internet site of Saeima, http://www.saeima.lv/ Likumdosana/likumdosana_stenogrammas.html, editor’s translation). 16/7 On 20 March 2003 Ministry of Foreign Affairs made a statement, which in part read: ‘On March 20, the disarmament of Saddam Hussein’s regime by military means has begun. Twelve years of prolonged effort by the international community to disarm the Hussein regime by peaceful means have ended in failure; diplomatic resources have been exhausted. Since 1990, the UN Security Council has adopted 17 resolutions demanding the disarmament of Iraq and its cooperation with the United Nations. On 8 November 2002, the UN Security Council unanimously adopted Resolution 1441, offering Saddam Hussein the final opportunity to
277
Republic of Latvia Materials on finish his twelve-year long confrontation with the international community and willingly and unconditionally comply with the demands of the UN Security Council to fully disarm. The Iraqi regime is solely and exclusively responsible for the consequences of its actions. It is the responsibility of the international community to eliminate the threat posed by the uncontrolled proliferation of Saddam Hussein’s weapons of mass destruction and the danger that they could fall into the hands of international terrorists, to be used against the peaceful inhabitants of any nation in the world. The flouting of UN Security Council resolutions, which undermines the authority of the United Nations and the international order, cannot be allowed to occur. The Parliament of the Republic of Latvia has taken the decision “On the Support of the Implementation of the UN Security Council Resolution Nr 1441” pledging support to and readiness to join the efforts of the international coalition aiming at disarmament of Iraq. We support the military forces of our coalition partners who, in risking their lives, are averting threats to peace and international security.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) ). 16/8 On 26 March 2003, in making a statement before the Security Council, Mr. Gints Jegermanis, Permanent Representative to the Security Council, observed: ‘Latvia has aligned itself with the statement of the European Union, however, we deem it necessary to express our views on this critical issue. Situation has utterly changed since we addressed the issue last time in the UN Security Council open debate. Twelve years of prolonged effort by the international community to disarm the Hussein regime by peaceful means have not been successful and diplomatic resources have been exhausted. Latvia regrets that Saddam Hussein has managed to polarise the international community making any further diplomatic efforts to resolve the situation impossible. The Iraqi regime is solely and exclusively responsible for the consequences of its actions. . . . On March 20 the Parliament of the Republic of Latvia has taken the decision “On the Support of the Implementation of the UN Security Council Resolution 1441” pledging its support and readiness to join the efforts of the international coalition aimed at the disarmament of Iraq.’
278
International Law 2003 (Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) ). Part Sixteen: IV. Use of force – Use of force other than self-defence and under the UN Charter 16/9 On 26 March 2003, in making an address at the signing ceremony of the Accession Protocols to NATO, Mrs Sandra Kalniete, Foreign Minister, stated: ‘Indeed it is precisely in order to defend these values [cherished by all NATO countries] and to face perceived threats to the peace and safety of the world that countries are engaged, even while we speak, in disarming a regime that has violated international law. Latvia is part of this coalition.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/?id=106 (01.01.2004) ). (see also 1/2, 2/3, 16/2-8) Part Sixteen: V. Use of force - disarmament and arms control 16/10 On 19 February 2003, in making a statement before the Security Council, Mr. Gints Jegermanis, Permanent Representative to the Security Council, observed: ‘Latvia has aligned itself with the European Council Conclusions of 17 February, however, we still feel it is necessary to express our views on this critical issue. Latvia would like to thank Dr. Blix and Dr. El Baradei for their reports and to express our appreciation to their inspection teams for the work they are doing in Iraq. . . . Latvia has repeatedly stressed that Iraq must fully comply with its international obligations and immediately rid itself of its weapons of mass destruction, which present a clear threat to world peace and security. Over the past twelve years the UN Security Council has repeatedly demanded Iraq’s disarmament through seventeen Security Council resolutions on Iraq, which have failed to discourage Iraq from developing its weapons of mass destruction. UN SC resolution 1441 has offered Iraq
279
Republic of Latvia Materials on the last chance to fulfill its previous commitments and disarm. Iraq still remains in material breach of its commitments under Resolution 1441. It is the responsibility of Iraq to prove that this disarmament is taking place. The inspectors’ task is not to play ‘hide and seek’ with Iraqi authorities, the inspectors are there to register the disarmament. Latvia urges Iraq to take advantage of this last opportunity presented by the UN SC resolution 1441. The responsibility of maintaining peace rests squarely on Iraq’s shoulders. As the European Council Conclusions affirm, the united stance of the international community, backed by military force has slowly moved Iraq in the direction of more co-operation. Both of these elements will continue to be essential tools to resolve the crisis.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) ). 16/11 On 12 March 2003, in making a statement before the Security Council, Mr. Gints Jegermanis, Permanent Representative to the Security Council, observed: ‘Latvia has aligned itself with the statement by the European Union; however, we still feel the need to underline our position on this critical issue. As a country acceding to the European Union we share the EU’s common objective of full and effective disarmament of Iraq from weapons of mass destruction in accordance with the relevant UNSC resolutions, in particular resolution 1441. Latvia would like to thank Dr. El Baradei and Dr. Blix for their reports and for their work in monitoring Iraq’s compliance with its disarmament obligations. Latvia evaluates these reports keeping in mind that the UNSC and the international community have unanimously demanded immediate, full, active and unconditional cooperation on the part of Iraq. Even taking into account such recent steps by Baghdad, as the destruction of proscribed Al Samoud 2 missiles, we have to conclude that Iraq has not taken strategic decision to disarm and to cooperate fully with the UN. Four months ago the UNSC resolution 1441 offered Iraq the last chance to fulfill its previous commitments and to disarm. Unfortunately, Iraq continues its policy of deception – problems persist with interviewing weapons scientists and technicians, no substantive new information is provided on the stocks of VX gas and anthrax and we have just learned that Iraq has failed to declare a remotely piloted aircraft.
280
International Law 2003 We agree with the conclusion of Dr. Blix that neither enhancement of inspections nor extension of inspections’ time frame can substitute active cooperation by Iraq. The inspectors have earned our admiration for their courage. However, success of the UN is to be measured by the degree of Iraq’s cooperation and commitment to disarm. The limited progress achieved until now is a result of a strong diplomatic pressure backed by military force. It falls short of satisfying the demands of the international community. . . . The European Council Conclusions of 17 February state that “unity of the international community is vital in dealing with” disarmament of Iraq. Today it is more important than ever before. If we are to achieve a peaceful disarmament of Iraq we need to increase diplomatic pressure on Saddam Hussein. Therefore Latvia supports the adoption by the UNSC the draft resolution cosponsored by the UK, US and Spain that would set a clear deadline for Iraq to comply with its obligations. A unanimous adoption of this draft would ensure the continued credibility of the UN and would send a clear and unequivocal message to Saddam Hussein that the time for taking the last opportunity is limited and in the case of Iraq’s failure the serious consequences will apply.’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/news/speeches/ (20.05.2004) ). (See also 16/2, 16/3, 16/5-9) Part Seventeen: III. F. The law of armed conflict – aspects of the law of armed conflict – protection of individual (international humanitarian law) 17/1 On 20 March 2003, Ministry of Foreign Affairs made a statement, which in part read: ‘Latvia stresses that the utmost possible must be done to avoid civilian casualties in the course of the military operation [in Iraq].’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/?id=106 (01.01.2004) ).
281
Republic of Latvia Materials on 17/2 On 26 March 2003, in making a statement before the Security Council, Mr. Gints Jegermanis, Permanent Representative to the Security Council, observed: ‘Latvia believes that everything possible must be done to avoid civilian casualties in the course of military operation [in Iraq].’
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/?id=106 (01.01.2004) ). Part Seventeen: III. F. The law of armed conflict – aspects of the law of armed conflict – war crimes (see 1/2)
282
International Law 2003 APPENDICE I. BILATERAL AGREEMENTS SIGNED BY THE REPUBLIC OF LATVIA DURING THE PERIOD 1 JANUARY 2003 AND 31 DECEMBER 2003 Instrument and Title BRAZIL Agreement between the Government of the Republic of Latvia and the Government of the Argentine Republic on Suppression of Visas in Ordinary Passports Agreement between the Government of the Republic of Latvia and the Government of the Argentine Republic on Visa Requirement Suppression for Holders of Diplomatic and Official or Service Passports BULGARIA Convention between the Republic of Latvia and the Republic of Bulgaria for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income Agreement between the Government of the Republic of Latvia and the Government of the Republic of Bulgaria for the Promotion and Reciprocal Protection of Investments BELARUS Agreement between the Government of the Republic of Latvia and the Government of the Republic of Belarus on Cooperation in Prevention of Disasters, Natural Calamity and Other Large-Scale Accidents as well as in Elimination of their Consequences CANADA Memorandum of Understanding between the Government of the Republic of Latvia and the Government of Canada Concerning Mutual Cooperation on Housing-related Matters
Date of Latvia signature
05.12.2003
05.12.2003
04.12.2003
04.12.2003
08.7.2003
29.9.2003
283
Republic of Latvia Materials on
Audio-Visual Co-Production Agreement between the Government of the Republic of Latvia and the Government of Canada ESTONIA Amendments of the Agreement between The Government of the Republic of Latvia and the Government of the Republic of Estonia regarding Border Crossing Points EUROPEAN COMMUNITIES Annual Financing Agreement 2002 between the Republic of Latvia and the Commission of the European Communities on behalf of the European Community EUROPEAN UNION Accession Treaty to European Union GERMANY Amendments to the Agreement between the Government of the Republic of Latvia and the Government of the Federal Republic of Germany on Cooperation in Struggle Against the Organised Criminality, Terrorism and the Increased Dangerousness Crimes HUNGARY Agreement between the Government of the Republic of Latvia and the Government of the Republic of Hungary on Co-operation and Mutual Assistance in the Event of Disasters and Other Large- Scale Accidents JAPAN Agreement between the Government of the Republic of Latvia and the Government of Japan Concerning the Japanese Cultural Cooperation for the Supply of Equipment for Preservation of Documents to Latvia’s State Archive of Film, Photo and Audio Documents KOREA Agreement between the Government of the Republic of Latvia and the Government of the Republic of Korea on the Abolition of Visa Requirements
284
15.10.2003
28.02.2003
04.02.2003
16.04.2003
11.12.2003
19.11.2003
20.11.2003
22.05.2003
International Law 2003 KUWAIT Agreement between the Government of the Republic of Latvia and the Government of State of Kuwait concerning the status of the National Armed Forces of Latvia in Kuwait MOLDOVA Agreement between the Government of the Republic of Latvia and the Government of the Republic of Moldova on Co-operation in Combating Terrorism, Illicit Trafficking in Narcotic Drugs, Psychotropic Substances and Precursors and Organized Crime Agreement between the Government of the Republic of Latvia and the Government of the Republic of Moldova on Co-operation in the Field of Tourism MONGOLIA Agreement between the Government of the Republic of Latvia and the Government of Mongolia on Cooperation in the Field of Culture, Education and Science POLAND Agreement between the Government of the Republic of Latvia and the Government of the Republic of Poland on Mutual Protection of Classified Information SPAIN Convention between the Republic of Latvia and the Kingdom of Spain for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital
06.08.2003
29.05.2003
06.11.2003
01.07.2003
26.02.2003
04.09.2003
Agreement between the Republic of Latvia and the Kingdom of Spain on Cooperation in Combating Terrorism, Organised Crime, Illicit Traffic in Narcotic Drugs, Psychotropic Substances and Precursors and Other Crime
24.11.2003
Agreement between the Government of the Republic of Latvia and the Government of the Republic of Estonia on Cooperation in the Field of Railroad Transport
07.11.2003
285
Republic of Latvia Materials on EL SALVADOR Agreement between the Government of the Republic of Latvia and the Government of the Republic of El Salvador for the Waiver of the Expedition of Visas in Diplomatic and Service or Official Passports TURKEY Agreement between the Government of the Republic of Latvia and the Government of the Republic of Turkey on Co-operation and Mutual Assistance in customs Matters Additional Protocol on Amendments to the Protocol C of the Free Trade agreement between the Republic of Latvia and the Republic of Turkey UNITED STATES OF AMERICA Agreement between the Government of the Republic of Latvia and the Government of the United States of America concerning the status of private educational institution ‘The International School of Latvia’ Amendment to the Letter of Agreement on Law Enforcement of September 20, 2001 between the Government of the Republic of Latvia and the Government of United States of America UKRAINE Agreement between the Government of the Republic of Latvia and the Government of Ukraine on Amendments to the Protocol to the Agreement on Admission and Transfer of Persons
30.06.2003
05.05.2003
09.09.2003
12.03.2003
10.09.2003
19.08.2003
The Protocol to the Agreement between the Republic of Latvia and Ukraine on Free Trade on Exceptions from the Free Trade Regime
20.10.2003
Agreement between the Government of the Republic of Latvia and the Cabinet of Ministers of Ukraine on Mutual Protection of Classified Information
07.11.2003
URUGUAY Agreement between the Government of the Republic of Latvia and the Government of the Oriental Republic of
286
18.08.2003
International Law 2003 Uruguay on the Mutual Abolition of Visa Requirements VENEZUELA Agreement between the Government of the Republic of Latvia and the Government of the Republic of Venezuela for the Waiver of the Expedition of Visas in Diplomatic and Service or Official Passports
07.07.2003
(Available at the Internet site of the Ministry of Foreign Affairs of Latvia, http://www.am.gov.lv/en/policy/4540/bilateral/ (20.05.2004) ).
287
Republic of Lithuania Materials on International Law 2003 Edited by Laima Masalaite* [Editorial Notes: 1. Republic of Lithuania Materials on International Law 2003 (RLMIL 2003) have been classified according to the Recommendation (97)11 of 12 June 1997 of the Committee of Ministers of Council of Europe. 2. Since the RLMIL mostly concern the opinions made by the institutions and officials of Lithuania, in case it has not been expressly provided for otherwise, the institutions and officials mentioned in the RLMIL are those of the Republic of Lithuania.]
*
Staff Member of the Ministry of Foreign Affairs of Lithuania. 289
Republic of Lithuania Materials on
INDEX Part One: International Law in general I. Nature, basis, purpose A. In general B. Jus cogens C. Soft law II. History Part Two: Sources and Codification of International Law I. Sources of international law A. Treaties B. Custom C. General principles of law D. Unilateral acts (including acts and decisions of international organisations and conferences) E. Judicial decisions F. Opinions of writers G. Equity H. Comity II. Acquisition, preservation and loss of rights III. Codification and progressive development of international law Part Three: The Law of Treaties I. Definition, conclusion and entry into force of treaties A. Definition B. Conclusion, including signature, ratification, and accession C. Reservations, declarations and objections D. Provisional application, and entry into force II. Observance, application and interpretation of treaties A. Observance B. Application C. Interpretation D. Treaties and third States III. Amendment and modification, derogation IV. Invalidity, termination and suspension of the operation A. General rules B. Invalidity C. Termination and suspension of operation, denunciation, and withdrawal D. Procedure E. Consequences of invalidity, termination or suspension of operation 290
International Law 2004 V. State succession in respect of treaties VI. Depositaries, notifications, corrections, and registration VII. Consensual arrangements other than treaties Part Four: Relationship between International Law and Internal Law I. General II. Application and implementation of international law in internal law A. Treaties (see also 14/3-14/5) B. Custom C. Sources other than treaty and custom III. Remedies under internal law for violations of international law (see also Part Six, VIII B, C) IV. Non-justiciability, including public interest immunity Part Five: Subjects of International Law I. States A. Status and powers 1. Personality 2. Sovereignty and independence 3. Territorial integrity 4. Non-intervention in domestic jurisdiction 5. Equality of States 6. State immunity 7. Treaty-making power 8. Powers other than treaty making B. Recognition 1. Acts of recognition a) Recognition of States b) Recognition of governments 2. Effects of recognition 3. Withdrawal of recognition 4. Non-recognition (including non-recognition of governments) and its effects C. Types of States 1. Unitary States 2. Personal and real unions 3. Federal States and confederations 4. Protected States 5. The Holy See D. Formation, identity, continuity, extinction and succession of States 1. Conditions for Statehood 2. Formation 291
Republic of Lithuania Materials on 3. Identity and continuity 4. Extinction 5. Succession (a) Situations of state succession (i) Union with or without the demise of the predecessor State (ii) Dismemberment (iii) Separation (iv) Newly independent States (b) Effects of State succession (i) Territory and other areas under national jurisdiction (ii) Nationality (iii) Succession in respect of treaties (iv) Archives (v) Debts (vi) Property (vii) Responsibility (viii)Other rights and obligations II. International organisations A. General 1. Status and powers (a) Personality (b) Privileges and immunities of the organisation (c) Treaty-making power (d) Other powers 2. Participation of States and international organisations in international organisations and in their activities (a) Admission (b) Suspension, withdrawal, expulsion, and deportation (c) Obligations of membership (see also 17/1) (d) Representation of States and international organisations to international organisations, including privileges and immunities 3. Legal effect of the acts of international organisations 4. Personnel and experts of international organisations, including privileges and immunities 5. Responsibility of international organisations 6. Succession of international organisations B. Particular types 1. Universal organisations 2. Regional organisations 292
International Law 2004 3. Organisations constituting integrated (e.g. economic) communities 4. Other types III. Entities or groups other than States and international organisations A. Mandated and trust territories B. Overseas territories and dependencies C. Condominia D. Special regimes E. Self-determination units and the concept of self-determination F. Insurgents G. Belligerents F. Others (e.g. indigenous people, minorities, national liberation movements) Part Six: The Individual (including the Corporation) in International Law I. Nationality II. Diplomatic and consular protection III. Aliens IV. Members of minorities V. Stateless persons VI. Refugees VII. Immigration and emigration, extradition, expulsion, asylum A. Immigration and emigration (see 4/10) B. Extradition C. Expulsion D. Asylum 1. Territorial asylum 2. Diplomatic asylum VIII. Human rights and fundamental freedoms (see 14/3−14/5) A. General concept B. Under United Nations treaty system C. Under Council of Europe treaty system D. Other aspects of human rights and fundamental freedoms IX. Responsibility of the individual Part Seven: The State and its Organs I. The composition of the State A. Heads of State B. Ministers C. Governments D. Departments of the State E. Diplomatic missions and their members 293
Republic of Lithuania Materials on F. Consulates and their members G. Special missions H. Trade and information offices, trade delegations, etc. I. Armed forces, including visiting forces J. Police and security services II. Protecting powers III. State property IV. Privileges and immunities A. State immunity (including Head of State immunity) B. Diplomatic privileges and immunities C. Consular privileges and immunities D. Visiting forces E. Other privileges and immunities Part Eight: Jurisdiction of the State I. Bases of jurisdiction A. Territoriality (see 4/10) B. Personality (active and passive) C. Protective principle D. Universality E. Other bases II. Types of jurisdiction A. Prescriptive B. Adjudicative C. Enforcement III. Extra-territorial exercise of jurisdiction A. General B. Consular jurisdiction C. Military and other personnel abroad D. Other exercises (e.g. artificial islands, terrae nullius) IV. Limitations upon jurisdiction (e.g. servitudes, leases) V. Concurrent jurisdiction Part Nine: State Territory I. Territory A. Elements of territory 1. Land, internal waters, lakes, rivers, and land-locked seas 2. Sub-soil 3. Territorial sea 4. Airspace B. Good neighbourliness II. Boundaries and frontiers 294
International Law 2004 A. Delimitation B. Demarcation C. Stability III. Territorial sovereignty A. General B. Acquisition and preservation C. Transfer and loss IV. Leased territory Part Ten: International Watercourses I. Rivers and lakes A. Definition B. Navigation C. Uses other than navigation D. Protection of the environment E. Institutional aspects II. Groundwaters III. Canals Part Eleven: Seas and Vessels I. Internal waters, including ports and harbours II. Territorial sea, including overflight III. Straits, including overflight IV. Archipelagic waters V. Contiguous zone VI. Exclusive economic zone VII. Continental shelf VIII. High seas A. Freedoms of the high seas, including overflight B. Visit and search C. Hot pursuit D. Piracy E. Conservation of living resources IX. Islands, rocks and low-tide elevations X. Enclosed and semi-enclosed seas XI. International Seabed Area XII. Land-locked and geographically disadvantaged States XIII. Protection of the marine environment XIV. Marine scientific research XV. Cables and pipelines XVI. Artificial islands, installations, and structures XVII. Tunnels 295
Republic of Lithuania Materials on XVIII. Vessels A. Legal regime 1. Warships 2. Public vessels other than warships 3. Merchant vessels B. Nationality C. Jurisdiction over vessels 1. Flag State 2. Coastal State 3. Port State 4. Exercises of jurisdiction other than by flag, coastal, and port State Part Twelve: Air Space, Outer Space, and Antarctica I. Air space A. Status and limits B. Uses C. Legal regime of aircraft II. Outer space and celestial bodies A. Status and limits B. Uses C. Legal regime of spacecraft III. Antarctica A. Limits and status B. Uses C. Protection of the environment Part Thirteen: International Responsibility I. General concept II. Responsibility other than criminal A. Responsible entities 1. States (a) The elements of responsibility (e.g. wrongfulness of the act, imputability) (b) Factors excluding responsibility (e.g. self-defence, necessity, counter-measures) (c) Diplomatic and consular protection (d) Nationality of claims (e) Exhaustion of local remedies 2. States (a) International organisations (b) Entities other than international III. Criminal responsibility 296
International Law 2004 A. Definition of an international crime B. Responsible entities 1. States 2. Entities other States (e.g. individuals) IV. D. Consequences of responsibility A. Reparation B. Consequences other than reparation Part Fourteen: Peaceful Settlement of Disputes I. The concept of an international dispute II. Means of settlement A. Negotiations B. Good offices C. Enquiry (fact-finding) D. Mediation E. Conciliation F. Arbitration 1. Permanent Court of Arbitration 2. Arbitral tribunals and commissions other than the Permanent Court of Arbitration G. Judicial settlement 1. International Court of Justice 2. Courts and tribunals other than the International Court of Justice H. Settlement within international organisations 1. United Nations 2. Organisations other than the United Nations I. Other means of settlement III. Compensation arrangements Part Fifteen: Coercive Measures short of the Use of Force I. Unilateral measures A. Retorsion B. Counter-measures C. Pacific blockade D. Intervention E. Other unilateral measures II. Collective measures A. United Nations B. Outside the United Nations Part Sixteen: Use of Force I. Prohibition of the use of force II. Self-defence 297
Republic of Lithuania Materials on III. Use of force under the UN Charter IV. Use of force other then self-defence and under the UN Charter V. Disarmament and arms control Part Seventeen: the law of armed conflict and international humanitarian law I. International armed conflict A. Definition B. Commencement C. Distinction between combatants and non-combatants D. Belligerent occupation E. Termination, including armistices and treaties of peace II. Non-international armed conflict III. Aspects of the law of armed conflict A. Sources B. Rights and duties of participants 1. Land operations 2. Sea operations 3. Air operations C. Mercenaries D. Conventional weapons E. Nuclear, bacteriological and chemical weapons F. Protection of the individual (international humanitarian law) G. Protection of property H. Recognition of belligerency I. War crimes 8. Belligerent occupation 9. Conventional, nuclear, bacteriological and chemical weapons 10. Treaty relations between combatants (cartels, armistices, etc.) 11. Termination of international armed conflict, treaties of peace Part Eighteen: neutrality and non-belligerency I. The laws of neutrality A. Land operations B. Sea operations C. Air operations II. Permanent neutrality III. Neutrality in the light of the United Nations Charter IV. Policy of neutrality and non-alignment V. Non-belligerency Appendices I. Bilateral Agreements signed by Lithuania in 2003 298
International Law 2004 Part Three: I. B. The Law of Treaties – definition, conclusion and entry into force – conclusion, including signature, ratification, and accession 3/1 Lithuania signed 3 Conventions (adopted by the Council of Europe and United Nations) and 22 bilateral agreements.1 Among the main bilateral agreements during the said year, the signing of the Protocol to the North Atlantic Treaty on the Accession of the Republic of Lithuania and Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, concerning the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union are the most significant and prominent events in the Lithuania’s foreign policy . 3/2 The Seimas (Parliament) in 2003 ratified 31 Conventions (adopted by the Council of Europe, United Nations, Hague Conference on Private International Law, International Civil Aviation Organisation, International Maritime Organisation, International Atomic Energy Organisation, International Labour Organisation and by the other international organisations) and 8 bilateral agreements. The Saeimas ratified the Lithuania’s Accession to the European Union Treaty needs on 16 September 2003. Since the day of the entry into force of the Treaty on 1 May 2004, the Republic of Lithuania will become the full member of this international organisation. 1
The statistical data on all the mentioned treaties and conventions was provided by the International Treaties Register Division of the Ministry of Foreign Affairs of the Republic of Lithuania.
299
Republic of Lithuania Materials on 3/3 Four bilateral agreements were approved by the Government. Part Three: I. C. The Law of Treaties – definition, conclusion and entry into force – reservations, declarations and objections; 3/4 The United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air of 15 November 2000, supplementing the United Nations Convention against Transnational Organized Crime, was ratified on 25 March 2003. While depositing its Instrument of Accession, Lithuania declared that it does not consider itself bound by paragraph 2 of Article 20, which provides that any State Party may refer any dispute concerning the interpretation or application of the said Protocol to the International Court of Justice. 3/5 The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 15 November 2000, supplementing the United Nations Convention against Transnational Organized Crime was ratified on 22 April 2003. While depositing its Instrument of Accession, Lithuania declared that it does not consider itself bound by paragraph 2 of Article 15, which provides that any State Party may refer any dispute concerning the interpretation or application of the said Protocol to the International Court of Justice. 3/6 The United Nations Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, of 28 July 1994 was ratified on 9 September 2003. While depositing its Instrument of Accession, in accordance with paragraph 1 of Article 287 of the Convention, Lithuania chose the following means for the settlement of disputes concerning the interpretation or application of this Convention: a) The International Tribunal for the Law of the Sea established in accordance with Annex VI; b) The International Court of Justice.
300
International Law 2004 3/7 The United Nations International Convention for the Suppression of Terrorist Bombings was ratified on 12 September 2003. While depositing its Instrument of Accession, Lithuania declared that in accordance with paragraph 3 of Article 6 it recognises the jurisdiction under its domestic law for the crimes indicated in paragraph 2 of Article 6. 3/8 The International Maritime Organisation Convention on Limitation of Liability for Maritime Claims was ratified on 16 December 2003. While depositing its Instrument of Ratification, Lithuania declared that it reserves the right to exclude the application of Article 2 paragraph 1(d) and (e). 3/9 The Rome Statute of the International Criminal Court was ratified on 1 April 2003 and it entered into force on 1 August 2003. While depositing its Instrument of Ratification, Lithuania declared that requests of the International Criminal Court for cooperation may be transmitted directly to the Ministry of Justice of the Republic of Lithuania or to the Prosecutor’s General Office of the Republic of Lithuania and that requests of the International Criminal Court for cooperation and any documents supporting the request should be presented either in Lithuanian language, which is State Language of the Republic of Lithuania, or in English language, which is one of the working languages of the International Criminal Court, or be accompanied by a translation either into Lithuanian language or in English language. The Republic of Lithuania expressed its willingness to accept persons, sentenced by the International Criminal Court to serve the sentence of imprisonment, if such persons are nationals of the Republic of Lithuania. 3/10 The Hague Conference on Private International Law Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children was ratified on 3 July 2003. While depositing its Instrument of Accession, Lithuania declared that requests under paragraph 1 of Article 34 will be communicated to its authorities only through its Central Authority (Ministry of Social Security and Labour of the Republic of Lithuania) and 301
Republic of Lithuania Materials on that certification under paragraph 1 of Article 40 must be issued by the child’s habitual residence’s district court of the Republic of Lithuania. Any communication sent to the Republic of Lithuania should be translated into the Lithuanian language or, if it is not possible, into English language. The Republic of Lithuania reserved the jurisdiction of its authorities to take measures directed to the protection of immovable property of a child situated in the territory of the Republic of Lithuania. Part Three: I. D. The Law of Treaties – definition, conclusion and entry into force – provisional application, and entry into force 3/11 Lithuania agreed with Kuwait on provisional application as of 15 April 2003 of the Agreement between the Government of the Republic of Lithuania and the Government of the State of Kuwait on the Status of Lithuanian Armed Forces in the State of Kuwait which was concluded by the exchange of letters on 15 April 2003. 3/12 26 Conventions (adopted by the Council of Europe, United Nations, Hague Conference on Private International Law, International Maritime Organisation and by the other international organisations) and 38 bilateral and 2 trilateral agreements have entered into force with regard to Lithuania in 2003. The following Conventions should be underlined: European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights, International Convention for the Suppression of the Financing of Terrorism, Rome Statute of the International Criminal Court, Convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and on their destruction and United Nations Convention on the Law of the Sea. Among the most significant bilateral agreements are the following: Temporary Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Belarus on Travels of Nationals of Both States, Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation on Travels of Nationals of Both States, Extradition Treaty between the Government of the Republic of Lithuania and the Government of the United States of America, Agreement between the Government of the Republic of Lithuania and the Government of the Republic of France on the Status of the Building of the 302
International Law 2004 Diplomatic Representation of the Republic of Lithuania in Paris, Treaty on Extradition between the Republic of Lithuania and the People’s Republic of China, Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation on Facilitated Transit Documents Issue Procedure, Treaty between the Republic of Lithuania and the Russian Federation Concerning the State Border between Lithuania and Russia, Treaty between the Republic of Lithuania and the Russian Federation Concerning Delimitation of the Exclusive Economic Zone and the Continental Shelf in the Baltic Sea and Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation on the Readmission of Persons Illegally Residing in the Territory of the Republic of Lithuania and the Territory of Russian Federation. Part Three: III. The Law of Treaties – amendments and modification, derogation 3/12 In accordance with Article 7 (2) of the Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Poland on Cooperation in Combat Against Organized Crime and Other Major Crimes, the parties by the exchange of the diplomatic notes on 2 October 2003 have concluded the amendment of Article 7 (1). The amendment regulates the change of the both parties’ competent institutions, titles and their addresses. 3/13 On 27 January 2003 amendments were made to the Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital concerning the grammatical mistakes in the text of the said Agreement. Part Three: IV. C. The Law of Treaties – invalidity, termination and suspension of the operation – termination and suspension of operation, denunciation, and withdrawal 3/14 In accordance with the membership in the European Union, Lithuania had to terminate 12 free trade agreements concluded with the following States: the 303
Republic of Lithuania Materials on Republic of Bulgaria, Czech Republic, Republic of Poland, Slovak Republic, Republic of Slovenia, Republic of Turkey, Ukraine, Republic of Hungary, the Republic of Estonia, the Republic of Latvia, Romania, EFTA States, Republic of Croatia. Free Trade Agreement between the Republic of Estonia and the Republic of Latvia and the Republic of Lithuania on trade in agricultural products and the Agreement on the abolition of non-tariff barriers to trade between the Republic of Estonia, the Republic of Latvia and the Republic of Lithuania and the Agreement between the Government of the Republic of Lithuania and the Government of Canada for Co-operation in the Peaceful Uses of Nuclear Energy were also among the international treaties which had to be terminated as being incompatible with the Lithuania’s accession to the European Union. Part Four: II. A. Relationship between the International law and Internal law – application and implementation of international law in internal law - treaties 4/1 In 24 March 2003 Ruling ‘On the compliance of Article 41 (2) of the Code of Correctional Labour of the Republic of Lithuania (wording of 2 July 1997) with the Constitution of the Republic of Lithuania’ (case No.3/01) the Constitutional Court investigated the request made by the Vilnius Regional Administrative Court whether the above-mentioned provisions stipulating that the correspondence of convicts must be censored were not in conflict with Article 22 of the Constitution of the Republic of Lithuania (hereinafter referred to as the Constitution). Article 41 (2) of the Code of Correctional Labour (hereinafter referred to as the CCL) is no longer in force as the new Punishment Execution Code of the Republic of Lithuania entered into force on 1 May 2003.2 Article 41 (2) of the CCL provided (wording of 2 July 1997) that convicts could be searched and the correspondence of convicts, except for the cases indicated in Article 50 (2) and (3) of this Code, may be censored only upon the decision of the prosecutor or the director of the establishment, or a ruling of the court (judge). It needs to be noted that Article 50 (2) of the CCL (wording of 15 July 1971) established that proposals, applications and complaints addressed to the prosecutor shall not be censored and shall be forwarded within 24 hours from the moment they have been received. According to Article 50 (2) of the CCL (wording of 3 June 1999), proposals, 2
Valstybơs žinios ’2002 No. 73-384, Law No. IX-994, 12 March 2002.
304
International Law 2004 applications and complaints addressed to the prosecutor, State institutions and the European Court of Human Rights shall not be censored and shall be forwarded within 24 hours from the moment they were received. The inviolability of the private life of a human being is established in Article 22 of the Constitution. The Constitutional Court emphasised, that the human right to privacy is not an absolute one. A person who has committed a criminal deed cannot and may not expect that the protection of his private life will be the same as that of the persons observing the laws. Thus, censorship of correspondence of convicts is permitted in the establishments of imprisonment, because it constitutes a means of control of the behaviour of convicts. According to the Constitution, the grounds and procedure of censorship of correspondence of convicts, as one of the elements of the contents of the imprisonment sentence, must be established by law. The Constitutional Court referred to the international legal acts such as the Universal Declaration of Human Rights (Article 12) and the European Convention on Human Rights (Article 8), establishing the right of a human being to the inviolability of private life. The Constitutional Court also cited the judgments of the European Court of Human Rights related to the interpretation of Article 8 of the Convention and formulating essential provisions on the restriction of the secrecy of correspondence. The Constitutional Court noted that the grounds for interference of public officials with the privacy of correspondence must be established by law, and the laws must be accessible. The privacy of correspondence may be restricted if it is necessary in a democratic society for attainment of a legitimate objective (for instance, ‘maintenance of order’, ‘prevention of criminal offences’, ‘protection of morals’, ‘protection of rights and freedoms of other persons’). Interference with the privacy of correspondence must be predetermined by ‘social imperatives’, it must be ‘proportionate to the sought objective’, there may not be ‘disproportionate limitation of the freedom of correspondence’ (judgment in the case Silver and others v. United Kingdom of 25 March 1983, judgment in the case Valašinas v. Lithuania of 24 July 2001; judgment in the case Puzinas v. Lithuania of 14 March 2002). Laws must establish the duration of censorship of correspondence of convicts and the reasons which serve as the grounds for the adoption of the decision to censor it, sufficiently clearly indicate the limits of actions of public institutions which censor correspondence and/or ways for their performance (judgement in the case Messina v. Italy of 28 September 2000). In the case Niedbala v. Poland the European Court noted that laws may not establish the obligatory (necessary) censorship of all the correspondence of convicts. Laws must specify the 305
Republic of Lithuania Materials on ways of the censorship of the correspondence of convicts and the time period during which the correspondence has to be examined (judgment in the case Niedbala v. Poland of 4 July 2000). According to Article 8 (2) of the Convention, restrictions of the privacy of correspondence must be established by law, they must be necessary in a democratic society in attempt to protect the rights and freedoms of other persons as well as public interests, and the restrictions may not overstep reasonable limits and negate the essence of the restricted rights. Only such restriction of this right, which is necessary to attain the objectives provided for in Article 8 (2) of the Convention, is possible. Therefore the Constitutional Court recognised that the provision of Article 41 (2) of the CCL (wording of 2 July 1997) to the extent that it established obligatory censorship of the correspondence of persons serving a sentence of imprisonment without providing by law the grounds for such censorship was in conflict with Article 22 of the Constitution. 4/2 On 4 July 2003 the Constitutional Court held the ruling ‘On the compliance of Article 11 (2) (wording of 21 December 2000) and Article 13 (3) of the Republic of Lithuania Law on the State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and of the Establishments and State Enterprises Which are Subordinate to the Latter (hereinafter referred to as the Law on the State Pensions) with the Constitution, also on the Compliance of Item 25 (2) (wording of 25 May 2001) of the Regulations for Granting and Payment of State Pensions of Officials and Servicemen of the Interior, the Special Investigation Service, State Security, National Defence, the Prosecutor’s Office, the Department of Prisons and of the Establishments and State Enterprises which are Subordinate to the Latter (hereinafter referred to as the Regulation) as Approved by Government of the Republic of Lithuania Resolution No. 83 of January 20 1995 with the Constitution and on the Compliance of Item 5 of the Said Regulations with Article 16 (4) of the Law on the State Pensions’. The petition was submitted by the Vilnius Regional Administrative Court, which intended to clear out whether the above-mentioned laws’ provisions are compatible with the Constitution. The object of the petition was the right of officials and servicemen to State pensions. The first request was to investigate whether Article 11 (2) Law on the State Pensions was not in conflict with the principle of just civil society and 306
International Law 2004 State as well as with other Constitution provisions. Article 11 (2) of Law on the State Pensions stipulates: ‘Retired officials and servicemen who, after granting of state pensions of officials or servicemen for service or disability pensions of officials or servicemen, receive the income from which contributions of state social pensions insurance are calculated and paid, or who receive sickness (including those paid by the employer for the days of sickness), maternity, (paternity) or unemployment benefits of the state social insurance . . . shall receive the part of the state pension of officials or servicemen which amounts to 30 percent of the pension.’ 3
Article 11 of Law on the State Pensions (wording of 13 December 1994) established that State pensions of officials and servicemen shall be paid to retired officials and servicemen in the amounts established by the Law on the State Pensions, irrespective of their received income. The Constitutional Court ruled: If a person has been granted and paid the State pension of officials and servicemen, it must be paid further. Upon the establishment in the disputed provision of Article 11 (2) of the Law on the State Pensions (wording of 21 December 2000) that respective persons are paid not the whole pension, but only partially in the amount of 30 per cent, the amount of the granted and till then paid State pension of officials and servicemen was reduced. This legal regulation violates the provision of Article 52 of the Constitution that the State shall guarantee the right to receive pensions and social assistance in cases provided for by the law. While construing the provisions of Article 23 of the Constitution, the Constitutional Court has held more than once that the inviolability of property and protection of the rights of ownership means inter alia that the owner, as the holder of subjective right to property, has the right to require that other persons do not violate his rights, as well as that the State has a duty to ensure the defence and protection of the rights of ownership. The persons who have been granted and paid the State pensions of officials and servicemen have the right to demand that the payments be paid further in the amounts, which were granted and paid earlier. It needs to be noted that the pensions granted and paid under the Constitution may be reduced only in the event of an extraordinary situation in the State when there is objective insufficiency of funds that are necessary to pay the pensions. The legal regulation, according to which the payment of the granted and paid State pension of officials and servicemen is no longer paid or is reduced, ought to 3
Valstybơs žinios ’1994 No. 101-2018, Law No. I-730 of 22 December 1994.
307
Republic of Lithuania Materials on be assessed as violating Article 23 (2) of the Constitution which stipulates that the rights of ownership shall be protected by laws. The Constitutional Court has also referred to the European Convention on Human Rights and the case-law of the European Court. The European Court has noted that, under the Convention, property or possessions which belong to a person are defended as well as the legal demands (claims) on the basis of which the claimant may argue that he has at least ‘a legitimate expectation’ to dispose of the property (admissibility decision in Malhous v. Czech Republic of 13 December 2000). The Constitutional Court has also stressed that the legal regulation creates a situation in which a person, who has been granted and paid the State pension of officials and servicemen, must choose either to receive the whole granted State pension of officials or servicemen, or to have some income from which contributions of the State social pensions insurance are calculated and paid and to receive part of the State pension of officials and servicemen which amounts only to 30 per cent of its size and is in conflict with Article 48 (1) of the Constitution. The Constitutional Court held that this legal regulation violates the legitimate expectations arising from the Constitution and the law, being an element of the principle of a State under the rule of law. Thus, the disputed provision of Article 11 (2) of the Law (wording of 21 December 2000) is in conflict with the constitutional principle of a State under the rule of law. The second request was to investigate whether Article 13 (3) Law on the State Pensions was not in conflict with the Constitutional provisions. Article 13 (2) of Law on the State Pensions stipulates: ‘The state pension of officials and servicemen shall not be granted and the payment of the granted pension shall be no longer paid for persons convicted for commission of intentional crimes.’ 4
The Constitutional Court held that a person who has been granted and paid the State pension of officials and servicemen, and who has already been convicted by court for commission of an intentional crime, is punished a second time for the same crime by applying a sanction of property nature against him (termination of the State pension of officials and servicemen which was granted to him and paid until them), which, by its strictness, amounts to criminal punishment. Such legal regulation violates of Article 31 (5) of the Constitution (non bis in idem). The Constitutional Court also ruled out that termination of the payment of the State pension of officials and
4
Valstybơs žinios ’1994 No. 101-2018, Law No. I-730 of 22 December 1994.
308
International Law 2004 servicemen constituted a violation of the above-mentioned Articles 23 and 52 of the Constitution. The third request was to investigate whether Item 25 (wording of 25 May 2001) and Item 5 of the Regulations are compatible with the Law on the State Pensions and Constitution. The Constitutional Court held that Item 25 of the Regulations provides for the virtually identical legal regulation as Article 11 (2) of the Law on the State Pensions therefore it is in conflict with Articles 52 and 48 (1) of the Constitution as well as the constitutional principle of a State under the rule of law. The Constitutional Court has stated in its rulings for more than once that under the Constitution, the Government’s Resolution is a sub-statutory legal act, it cannot be in conflict with the law, change the content of the norms of the law, it may not contain any such legal norms, which would compete with those of the law. The Government can only establish the legal regulation, which is in conformity with laws. The procedure established by the Government may not contain any legal norms establishing different legal regulation than that established in the law and competing with norms of laws. Therefore the Constitutional Court held the Item 5 of the Regulations is in conflict with of Article 16 (4) of Law on the State Pensions. 4/3 The question of the trademark registration was under examination in the 7 January 2003 Supreme Court case involving a closed joint-stock enterprise ‘TORGOVYJ DOM POTOMKOV POSTAVŠýIKA DVORA EGO IMPERATORSKOGO VELIýESTVA P.A. SMIRNOVA’ (Russian Federation) v. UDV NORTH AMERICA, Inc. and State Patent Bureau of the Republic of Lithuania (case No.3K-3-167/2003). The plaintiff complained of decision of 26 January 1999 of the State Patent Bureau of the Republic of Lithuania which declared the registration of the trademark ‘P.A.Smirnov i potomki v Moskve’ void and opposed the trademark with defendant’s registered trademarks ‘SMIRNOFF’, ‘PIERRE SMIRNOFF’ and claimed that this decisions as well as the judgements of the Vilnius Regional Court and the Court of Appeal should be annulled, as the result of the improper interpretation and application of the national and international law provisions. The Supreme Court rejected the plaintiff’s claim as unsubstantiated and upheld the lower court judgements. The Supreme Court has referred to the provisions of Article 4 (1) of the Law on Trademarks and
309
Republic of Lithuania Materials on Service Marks5 stating that marks, which are already registered or applied for the same or similar goods or services with the State Patent Bureau of the Republic of Lithuania, and which enjoy prior rights shall not be registered if it is identical or confusingly similar. The court stressed the need to prove all three criteria in order to justify the application of the provisions for the nonregistration of the trademark, which were: 1) criteria of time period: the contested trademark must be later, i.e. its right to protection date must be later than the opposed trademark’s date; 2) goods and services must be confusingly similar or identical; 3) the trademarks must be confusingly similar or identical. The object for the disagreement between the two civil case parties was interpretation of the content of the third criteria, whether the trademarks are confusingly similar or identical. The Supreme Court stressed that the decision of the trademark’s registration must be held taking into the consideration whether it is possible to distinguish one person’s rendering services or goods and the other person’s rendering services or goods. The Supreme Court cited the European Court’s of Justice decision in case Canon Kabushiki Kaisha v. Metro-Goldwyn-Mayer Inc. (case No.C-39/97) and noted that the main goods trademark function for the consumer is to guarantee goods’ origin of identity in the market without any genuine possibility to confuse goods with another source. The Supreme Court furthermore explained that the perception of the trademark of goods or services by the consumer plays the vital importance in deciding whether there is a possibility for the confusion (the lower courts drew the attention to the fact that the main impression for the consumer was made by the word SMIRNOV, which visually, phonetically and in its meaning resembled with the defendant’s registered trademark SMIRNOFF, and emphasised that this trademark indicates the alcoholic drinks, broadly recognised in the whole world, including Lithuania). The Supreme Court also rejected the plaintiff’s arguments claiming that the State Patent Bureau of the Republic of Lithuania and the lower courts made a violation under the Article 5 (1) of the Protocol Relating to the Madrid Agreement6 Concerning the International Registration of Marks (‘any such refusal can be based only on the grounds which would apply, 5 6
Valstybơs žinios ’2000 No. 92-2844, Law No. VIII-1981 of 10 September 2000. Valstybơs žinios ’1997 No. 50-1193.
310
International Law 2004 under the Paris Convention for the Protection of Industrial Property,7 in the case of a mark deposited direct with the Office which notifies the refusal’) not granting the protection to the trademark ‘P.A.Smirnov i potomki v Moskve’. The refusal to render the protection was based on the provisions of the Paris Convention For the Protection of Industrial Property (Article 6 (B) (1) ) and Law on Trademarks and Service Marks (Article 4 (1) ) stating that the trademarks could not be denied registration, unless they are of such a nature as to infringe rights acquired by third parties in the country where protection is claimed. Therefore, the Supreme Court concluded that the breach of international law has occurred. 4/4 The plaintiff (ex employee) claimed that defendant (enterprise) has dismissed her from employment for being drunk at the work place without paying attention to the fact that during the period of 22 years of employment she had never had a disciplinary punishment (judgement of 24 March 2003 in the case No.3K-3-380/2003 Ona Butkeviþienơ v. SP Closed Joint-Stock Enterprise ‘Prienǐ Bus Park). The plaintiff also noted that she was a President of the enterprise’s employees’ professional organisation for defending their rights. Mrs. O. Butkeviþienơ has underlined that her dismissal could not be considered as justifiable, as in other cases of dismissals in the same enterprise the one disciplinary punishment was not enough to dismiss from employment. Also the plaintiff has referred to Articles 1 and 4 of the Convention Concerning Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking, adopted by the International Labour Organization: ‘Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities…’ ‘National laws or regulations . . . or court decisions may determine the type or types of workers’ representatives which shall be entitled to the protection.’8
Therefore, the plaintiff claimed she was treated in a different way than the enterprise’s other employees and was dismissed unlawfully. The Supreme Court stressed that the lower courts did not draw their attention to all the 7 8
Valstybơs žinios ’1996 No. 75-1796. Valstybơs žinios ’1996 No. 30-737.
311
Republic of Lithuania Materials on circumstances, necessary to be examined for the adoption of the just and thorough decision, in particular, the fact that the claimant was a President of the professional organisation was not properly taken into the consideration. In order to investigate all the facts, the Supreme Court quashed the lower court’s decision and sent the case for new examination. 4/5 The issue of the overtime work was under the consideration by the Supreme Court in the ruling of 3 September 2003 Viktor Jemeljašþnekov v. State enterprise Klaipơda metrology center (case No. 3K-3-763/2003). The plaintiff worked for the State enterprise Klaipơda Metrology Center as a watchman. He claimed his working hours exceeded the time limit of 40 hours and that he was forced to work through the holiday days, although on the day of dismissal from the employment the employer did not pay the full amount of compensation for the overtime work. Therefore the plaintiff claimed there was a breach of Article 48 (1) of the Law on the Security and Safety of the Employees (no longer in force as the new law entered into force on 16 May 20039) and the provisions of the Convention Concerning the Reduction of Hours of Work to Forty a Week.10 In Mr. Jemeljašþneko’s view, the interpretation of the laws proves that 48 working hours per week should mean 40 hours of normal working week pay, plus 8 hours of overtime, and must not be interpreted as a normal week of 48 hours for the employees of specific professions that would not include overtime hours. The Klaipơda City District Court held that the plaintiff indeed worked for more than 48 hours per week and the employer was honestly mistaken with the payment for the overtime work. The Klaipơda Regional Court, as the Appeal instance, changed the decision of the Klaipơda City District Court and drew attention to the 20 February 1996 Resolution No. 248 adopted by the Government of Lithuania On Particularities of Working Time and Periods of Rest in Specific Economic Branches, the Introduction of the Cumulative Record of Working Time as Well as Jobs Where the Duration of Work (Shift) May Exceed 12 Hours Per 24-Hours Period (no longer in force as the new Resolution entered into force on 16 May 200311), which provides a list of professions in which the work duration of over 12 hours in twentyfour hours is applicable. The watchman profession was among the other professions. The Klaipơda Regional Court also noted that Article 40 of the 9
Valstybơs žinios ’2003 No. 70-3170, Law No. IX-1672 of 1 July 2003. Valstybơs žinios ’1996 No. 27-649. 11 Valstybơs žinios ’2003 No. 48-2120, Resolution No. 587 of 14 May 2003. 10
312
International Law 2004 Law on the Security and Safety of the Employees required that a working week must not exceed the 48 hours limit over the week and the workday must not exceed 12 hours in a twenty-four hours period. Therefore, the Klaipơda Regional Court held that the plaintiff did not work overtime and the national provisions were in conformity with the Convention Concerning the Reduction of Hours of Work to Forty a Week. The Supreme Court in its ruling has also referred to the above-mentioned laws and acknowledged that the normal week for workers should not exceed 40 working hours, but underlined that lex specialis (section 4 of the Law on Safety at Work) provided the exceptional cases applicable for the employees of certain professions, including watchmen whose work week should not exceed 48 working hours, and that the rest time between the shifts must be no less than 24 hours. The Supreme Court upheld the Klaipơda Regional Court’s decision and ruled that the plaintiff did not work overtime. 4/6 The plaintiff Mr. Rolandas Aukštuolis (the defendant – Joint-Stock Enterprise ‘Pagiriǐ šiltnamiai’) submitted the cassation claim (case No.3K-3747/2003) with the Supreme Court demanding to declare his dismissal from employment unfair and unlawful, requested pecuniary damage for the enforced idleness and the childcare leave until the child reaches three years of age. Mr. Aukštuolis explained he had been working for the defendant as the locksmith for the past five years. The plaintiff and his wife recently had had a daughter and his wife intended to return to her previous work. Therefore Mr. Aukštuolis asked his employer to grant him the childcare leave until the child reached three years of age, but the leave was refused. Instead he was given the notice of dismissal because of reduction in the number of employees. After the repeated request, the plaintiff was granted the holidays until his dismissal i.e. from 20 September 2001 up to 31 December 2001. The plaintiff claimed his right for the leave was infringed and constituted a breach under Article 19 of the Law on Holidays (no longer in force, as the Labour Code of the Republic of Lithuania entered into force on 1 January 2003), and under Article 5(2) of the Law on the Equal Opportunities of Women and Men.12 The Vilnius Regional Court as well as the Vilnius District Court both refused the claim. The lower Courts held that the applicant could not rely on the provisions of Article 35 (1) and (2) of the Law on the Employment 12
Valstybơs žinios ’2003 No. 112-3100, Law No. VIII-947 of 1 December 2003.
313
Republic of Lithuania Materials on Contract Holidays (no longer in force, as the Labour Code of the Republic of Lithuania entered into force on 1 January 2003) stating that the employment contract cannot be terminated at the employer’s own initiative or own will with the pregnant women or women who have children under 3 years of age or fathers and other persons who are the sole supporters of children under three years of age. The lower Courts have ruled that this guarantee could be applicable to the present case only if Mr. Aukštuolis would have raised his daughter alone, that is without his wife. The Supreme Court quashed the lower court decisions. In the opinion, the Court drew attention to Article 27 of the European Social Charter (revised)13 providing the opportunity for both parents to be granted the childcare leave until the child reaches three years of age. As the European Social Charter (revised) had already entered into force for the Lithuania (1 August 2001) it had to be applied directly by the Courts of Lithuania. Therefore the Supreme Court held that the lower court decisions must be declared void for breach of Article 27 (2) of the European Social Charter. Furthermore, the Supreme Court indicated that the lower court decisions were incompatible with the principle of rendering every kind of assistance to the family, which is provided in Article 38 of the Constitution. The Supreme Court also noted that Constitution (Article 29) forbids discrimination and enshrines the principle of equality against the law for all. The Court supported the right of parents to take holidays for childcare for three years (19 Article of the Law on Holidays) and said that the decision must not be restricted or subjected to the discretion of the employer. Therefore the lower courts improperly interpreted the provisions of Article 35 (2) of the Law on Employment Contracts. The conclusion that under the above-mentioned Article only women are protected is incompatible both with the international agreements and internal laws providing the equality of parents and prohibition of the discrimination. The Supreme Court declared the dismissal from employment of Mr. Aukštuolis wrongful and unlawful and obliged the defendant to grant the plaintiff’s request for childcare leave and to return to employment. 4/7 The questions of the direct applicability and proper interpretation of the provisions of the Convention on the Contract for the International Carriage of Goods by Road (hereinafter referred to as CMR Convention) was 13
Valstybơs žinios ’2001 No. 49-1704.
314
International Law 2004 examined by the Supreme Courts rulings in the following cases. The plaintiff UAB ‘L&P’ (Supreme Courts ruling of 5 November 2003 in case Closed Joint-Stock Enterprise ‘L&P’ v. Lithuanian and Russian UAB ‘Askela’) claimed that the lower courts have incorrectly interpreted Article 17 (2) of the CMR Convention and therefore he was not paid the pecuniary damage for the delay and loss of goods. The plaintiff (consignee) contracted with a third party, Joint Enterprise Closed Joint-Stock ‘Militzer & Munch Fortransas’ (sender), to deliver computer equipment from Germany to Lithuania. The latter firm addressed the delivery to the Closed Joint-Stock Enterprise ‘Vasto’ (the defendant and the carrier) which committed to deliver the goods from the German enterprises to Lithuania, i.e. the Closed Joint-Stock Enterprise ‘L&P’. While delivering the above-mentioned goods, the driver’s car was blocked by the police with flashing lights in the territory of Poland. There were two men dressed as police officers waving the white police stick with the circle. The driver had no doubts about the men pretending to be police officers. The driver was forced to stop the car and later agreed to sit in the police car with his documentation. The driver was threatened with a gun and tied up with rope and his car with the goods was stolen. The sender claimed this result was caused by the delay of the delivery of goods and the goods were not fully delivered. The plaintiff added that it was the carrier who had to take the responsibility for this delivery. Both the Vilnius Regional Court and the Court of Appeal rejected the plaintiff’s claim. The courts’ decisions were based exceptionally on Article 17 (2) of the CMR Convention14 that states as follows: ‘The carrier shall . . . be relieved of liability if the loss, damage or delay was caused by . . . circumstances which the carrier could not avoid and the consequences of which he was unable to prevent’. The Supreme Court referred to the Survey of Courts’ Practice on Application of the Convention on the Contract for the International Carriage of Goods by Road and emphasised that the carrier, delivering the goods by routes of increased risk, could be relieved of the responsibility if exceptional circumstances have occurred, which could not be predicted even taking into consideration the specificity of the delivery. The Supreme Court stressed that the carrier must assume the burden of proof as it is provided in Article 18 (1) of the CMR Convention. The Supreme Court further explained that under Article 17 (2) of the CMR Convention it has to be proved that the carrier could not avoid the circumstances and was unable to prevent the consequences. The Supreme Court cited the Supreme Court’s decision in the 14
Valstybơs žinios ’1998 No. 107-3932.
315
Republic of Lithuania Materials on similar cases (Closed Joint-Stock Enterprise ‘Kemi’ v. M.Neverausko Individual Enterprise; Apollo Melkprodukten bv. V. Closed Joint-Stock Enterprise ‘Rainio transportas’) and stressed that a carrier could be relieved of the liability if it is proved he has done everything what would be done by bona fide and conscientious, dutiful carrier. The Supreme Court explained that a professional driver must take all the possible measures in order to avoid the risk of loss or damage of the delivery. The Supreme Court drew attention to the armed attack, which was executed by the men pretending to be the police officers. It was acknowledged that every driver in a situation similar to the present case, even if having taken every possible and reasonable measure for the delivery to be protected, would not be able to disobey the order of the men imitating the police officers, where there was no apparent doubt about their appearance and the legality of their actions. Therefore, the Supreme Court affirmed the decision of the lower courts and ruled that the carrier could rely on Article 17 (2) of the CMR Convention to avoid liability for the loss of the goods. 4/8 A similar situation was examined by the Supreme Court in the 29 October 2003 in the United States of America company ‘Droheda Corporation’ v. Closed Joint-Stock Enterprise ‘Ireitơ’ case (No. 3K-3-1013/2003). The US ‘Droheda Corporation’ concluded a contract for the delivery of cosmetic goods from Lithuania with the individual enterprise ‘J.Šavareikos enterprise’. The latter contracted with Closed Joint-Stock Enterprise ‘Ireitơ’ on the above-mentioned delivery whose driver stopped in a non-protected gas station in the territory of Poland where part of the cargo was stolen. Therefore the consignee (‘Droheda Corporation’) received only part of the order. Both the Vilnius District Court and the Vilnius Regional Court held that the carrier (the defendant) was liable for the loss of goods because it did not fulfil the obligation to deliver goods to the designated place according to Article 27 of the Road Transport Code and Article 6.808 (1) of the Code. The defendant was also liable for the partial loss of the goods under the provisions of the CMR Convention (Articles 3 and 17 (1)). The Court held that the defendant did not prove its driver had taken all the necessary safety measures in order to avoid of the circumstances causing the damage, as was expected of a conscientious and dutiful driver. The cassation claim submitted by the defendant argued the misinterpretation of the CMR Convention
316
International Law 2004 provisions by the courts and sought the dismissal of the lower courts decisions. The Supreme Court upheld the decision of the lower courts stressing that Part 1 of the CMR Convention establishes the responsibility of the carrier for the whole and the partial loss or damage of the goods from the moment when the goods were accepted to be delivered until the moment of transfer, and also for the delay of delivery. The Supreme Court cited the Survey of Courts’ Practice on Application of the Convention on the Contract for the International Carriage of Goods by Road, and stressed that the carrier is liable for the delivery between the moment he accepts the goods to the time of delivery. From the moment the carrier had signed the consignment note the presumption of his liability enters into force. The carrier was the defendant Closed Joint-Stock Enterprise ‘Ireitơ’, which was deemed to be responsible for the partial loss of the goods. The Supreme Court also drew attention to the fact that Closed Joint-Stock Enterprise ‘Ireitơ’ did not prove its driver had taken all the necessary security measures and had done everything possible to avoid the circumstances and the consequences, as should the conscientious and dutiful driver do. The Supreme Court ruled out that there was evidence confirming the driver could be relieved from the liability and the cassation claim was rejected. 4/9 The rights of children were the object of the issue in the Supreme Court’s rulings of 7 May 2003 KĊstutis Laurenþikas, Audronơ Laurenþikienơ and Jurga Laurenþikaitơ v. Closed Joint-Stock Enterprise ‘senamiesþio njkis ‘(case No.3K-3-587/2003), and 22 October 2003 Natalija Gillis v. Valerij Ivanov (case No. 3K-3-1003/2003). The plaintiff (Closed Joint-Stock Enterprise ‘Senamiesþio Njkis’) adressed the claim to the Vilnius First District Court in order to execute the eviction of the defendant’s family from the dwelling. The reason for the execution was that the Closed Joint-Stock Enterprise ‘Senamiesþio Njkis’ had to compulsorily recover the debt from the defendant. The defendant stressed that his family had a minor child Lukas Laurenþikas. The Vilnius First District Court has ruled that the plaintiff’s eviction was legitimate, as the flat was handed over according to the 31 May 2001 Act of Property transmission, which was also confirmed by the signature of the bailiff. The Vilnius Regional Court left the judgement unchanged. Laurenþikas then submitted the cassation complaint to appeal the lower courts’ decisions referring to the Convention on the Rights of Child and the Law on 317
Republic of Lithuania Materials on Fundamentals of Protection of the Rights of the Child. He argued that in order to evict the children, the municipality is obliged to find a new dwelling for the evicted child. The defendant furthermore stressed that Article 3 (1) of the Convention on the Rights of Child provides: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’,15 and Article 4 (5) of the Law on Fundamentals of Protection of the rights of the Child provides: ‘no child must be left without a home, minimum funds of subsistence and care or guardianship’.16 He argued that the lower courts did not pay attention to the above-mentioned laws. The Supreme Court held that both the Constitution and the Convention on the Rights of Child are the acts of the general nature, therefore the laws of the Republic of Lithuania provide the concrete means for those norms to be implemented and executed in practice. The court referred to Article 4 (5) of the Law on Fundamentals of Protection of the Rights of the Child, but it drew the attention to the provisions of point 7 of the same Article stating ‘parents and other legal representatives of a child must first safeguard the rights of a child’.17 The Supreme Court concluded that the Vilnius Regional Court had correctly interpreted the material norms of the law and upheld the lower courts’ decisions. 4/10 The question of the establishment of a minor child’s permanent residence was raised in the case Natalija Gillis v. Valerij Ivanov. The plaintiff (Mrs. N. Gillis) claimed her daughter’s permanent residence must be established with her, i.e. in the United States of America (she married a US citizen), as at the moment concerned she and her daughter had a permanent permission to live in the U.S. Her ex-husband and father of her child (Lithuanian marriage was annulled earlier) refused to agree to establish his daughter’s permanent residence in the US, claiming his parental rights would be burdened and he could not take care of his daughter. The Visaginas City District Court left the case unresolved. The Court indicated that the Republic of Lithuania and the US do not have an agreement for the legal assistance and the decision may not be recognised and implemented by the competent institutions of the foreign country, therefore the case is under the jurisdiction of the US courts . 15
Valstybơs žinios ’1995 No. 60-1501. Valstybơs žinios ’1996 No. 33-807, Law No. I-1234 of 14 March 1996. 17 Valstybơs žinios ’1996 No. 33-807, Law No. I-1234 of 14 March 1996. 16
318
International Law 2004 The Court also referred to Item 28 of the 21 June 2002 Decree No. 35 of the Senate of the Supreme Court Senate ‘On the application of law in the practice of court, establishing the permanent residence of the children, whose parents are living separately’. It is stated here that in cases when there is no agreement concluded with a foreign country, the applicable law must be determined by the application of the collision norms. The rule of collision norms is provided in Article 1 (32) of the Civil Code of the Republic of Lithuania, whose the general provisions state that for the relations between the parents and children, the law of a child’s residence must be applied, in this case, the US law. The Vilnius District Court left the decision unchanged. The Supreme Court said the lower courts did not interpret the question of the courts’ jurisdiction properly. It explained that at first it was necessary to identify whether the Lithuanian court had the jurisdiction to examine such a case and only after solving this matter it was possible to conclude which State’s law is applicable. The Supreme Court indicated the question of jurisdiction should be determined according to Article 30 of the Constitution and Article 6 of the Convention on the Civil Aspects of International Child Abduction. Furthermore, the Supreme Court stressed that the courts’ incorrectly applied Item 28 of the 21 June 2002 Decree No.35 of Supreme Court Senate ‘On the application of law in the practice of court, establishing the permanent residence of the children, whose parents are living separately’ and Article 1 (32) of the Civil Code of the Republic of Lithuania, because they do not provide the rules of jurisdiction, they only regulate how the question of the applicable law must be solved. The Supreme Court indicated that the case must be examined under Article 784 (1) of the Civil Procedure Code of the Republic of Lithuania (no longer in force, as the new Civil Procedure Code entered into force on 1 January 2003), which indicates that family cases are under the jurisdiction of the Lithuanian courts when one of the parties is a national of Lithuania, or a person without nationality and if his permanent residence is within the territory of Lithuania. The Supreme Court also stressed that the facts do not prove any possible obstacles for the execution of the decision. On the contrary, it noted that the examination of the case in the territory of Lithuania is directly connected with the possibility for the plaintiff and her daughter to visit Lithuania without any possible restrictions, which might occur when she leaves Lithuania. The Supreme Court has also referred to Article 1 of the Convention on the Civil Aspects of International Child Abduction providing that the States Parties are obliged to ‘secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other 319
Republic of Lithuania Materials on Contracting States’.18 Therefore, the Supreme Court quashed the lower court decisions and remanded the case to the Visaginas City District Court for further investigation. (See also Part 14) Part Five: I. B. Subjects of International Law – States - recognition 5/1 The Means of Execution of the Plan of the Programme of the Government of the Republic of Lithuania, as approved by the Resolution No. 1196 of the Government of the Republic of Lithuania on 4 October 2001,19 provides for the establishment of the diplomatic relations with the countries of Asia, Africa and Pacific region. The Republic of Lithuania during the year of 2003 has established the diplomatic relations with the Democratic Republic of Sao Tome and Principe (8 August 2003 by signing the joint communiqué) and with the Republic of San Marino (16 September 2003 by the exchange of the diplomatic notes). The Government of the Republic of Lithuania in 2003 adopted 2 resolutions concerning the approval of the establishment of the diplomatic relations with the Republic of Haiti20 (25 June 2003, Resolution No. 831), the Republic of Botswana21 (9 December 2003, Resolution No. 1566). Part Five: II. A. 2. (a) Subjects of International Law – international organisations – participation of States and international organisations in international organisations and in their activities - admission 5/2 The Republic of Lithuania expressed its intention and willingness to accede to the NATO on 4 January 1994 by addressing the letter to the NATO Secretary-General. The Republic of Lithuania was invited together with six other European countries (Bulgaria, Estonia, Latvia, Romania, Slovakia and Slovenia) to negotiate the accession only on 21 November 2002 in Prague during the Summit Meeting of the Heads of the State or Government. After the successful conclusion of the accession negotiations, the Minister of 18
Valstybơs žinios ’2002 No. 51-1932. Valstybơs žinios ’2001 No. 86-3015, Resolution No. 1196 of 4 October 2001. 20 Valstybơs žinios ’2003 No. 61-2811, Resolution No. 831 of254 June 2003. 21 Valstybơs žinios ’2003 No. 116-5280, Resolution No. 1566 of 9 December 2003. 19
320
International Law 2004 Foreign Affairs of the Republic of Lithuania addressed a letter to the NATO Secretary General confirming Lithuania’s determination to undertake the responsibilities under the North Atlantic Treaty and other NATO obligations. 5/3 During the official visit to the Republic of Lithuania on 27 February 2003 Mr. G. Robertson, the NATO Secretary General held a congratulation speech in the Seimas on the occasion of Lithuania’s invitation to join the Alliance. It was stressed that Lithuania has clearly made great progress in a relatively short period by implementing political, military and other reforms and in meeting NATO standards. The Secretary General also explained that the new policy changes were set out after the Prague meeting. 1. First, NATO’s determination to deal with terrorism. 2. The second policy change was indicated as the better defence against weapons of mass destruction. The Secretary General noted, that continued crisis over Iraq’s disarmament demonstrated that this issue has become central to security and to international stability. 3. The third policy change was defined as the agreement that NATO’s forces could be prepared to be deployed wherever they are needed, and to defend against threats from wherever they may come, that means to operate ‘out-of-area’. The Secretary General also underlined the objectives of the invited countries to shape and strengthen Euro-Atlantic security more broadly and to contribute to the Alliance’s efforts in this regard and not only enjoy the guarantee of Article 5 of the North Atlantic Treaty. Furthermore, the Lithuania’s meaningful contribution to international security by showing political leadership and participating in multinational crisis management (Bosnia and Herzegovina, Kosovo region, Afghanistan, etc.) was indicated as an effective preparation for the membership showing the strength of the small nation. 5/3 During the annual meeting of ambassadors accredited to Lithuania held on 24−28 February 2003 in Vilnius, Mr. A. Valionis, the Minister of Foreign Affairs of the Republic of Lithuania emphasised the importance of Lithuania’s membership in the NATO and indicated that NATO will be the cornerstone of Lithuania’s security policy. The Minister concluded with 321
Republic of Lithuania Materials on definition of the basic Lithuania’s interests, that is: to keep it a strong collective defence organisation maintaining Article 5 guarantee, to maintain a viable trans-Atlantic link, and, specifically, the US interest in the Baltic region; to contribute to the continuity of NATO enlargement process; and to ensure Lithuania’s role in the Alliance in order to influence its decisions and actions in line with the security needs of Lithuania. 5/4 H.E. Mr. R. Paksas, the President of the Republic of Lithuania also expressed Lithuania’s commitment to respect its membership obligations and preparedness to be not only the consumers of security in NATO, but also to contribute on equal footing with other Member States for the further enhancement of security, stability and democracy. 5/5 In accordance to Article 10 of the North Atlantic Treaty, a State invited by unanimous agreement to accede to the Treaty becomes a Party by depositing its instrument of accession with the Government of the US. Before the accession to the North Atlantic Treaty, a candidate country must sign the Protocol on Accession. On 27 March 2003 the Protocol on Accession was signed in Brussels on behalf of NATO parties and Lithuania and six other invited countries. The Protocol enters into force after each of the Parties to the North Atlantic Treaty notifies the Government of the US (by the end of the year of 2003, all the present parties have managed to ratify the acceptance of the future members) of its acceptance thereof (Article II of the Protocol to the North Atlantic Treaty on the Accession of the Republic of Lithuania). And the State becomes a Party on the date when it fulfils the internal procedures necessary for the accession to the North Atlantic Treaty and deposits its Instrument of Accession with the Government of the US. At the end of 2003, the procedure on ratification of the North Atlantic Treaty in Lithuania was in process. In accordance with Articles 138 and 84 (1) of the Constitution the Resolution No. 1716 ‘On addressing the President of the Republic of Lithuania with the request to submit to the Seimas for ratification the North Atlantic Treaty’22 was adopted by the Government of the Republic of Lithuania on 31 December 2003. It is expected that the Republic of Lithuania will be able to enjoy the rights conferred to the State Parties by the North Atlantic Treaty not later than 1 May 2004. 22
Valstybơs žinios 2003 ’No. 4-68, Resolution No. 1716 of 31 December 2003.
322
International Law 2004 5/6 During the presentation of the President’s Decree regarding the request to submit to the Seimas of the Republic of Lithuania for ratification the Accession Treaty to the EU, Mr. A.Valionis, the Minister of Foreign Affairs underlined that irrespective of the changes during the past almost ten years in the Government, the Seimas, Heads of State (President) and chief negotiators, the aim to seek the membership of European Union stayed immutable and the objective was continued to be achieved as quickly as possible.23 The Republic of Lithuania was not recognised as being fully prepared to begin the negotiation procedures with the first group of the candidate States (the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Hungary, the Republic of Poland, the Republic of Slovenia) in 1998, therefore the negotiation procedures regarding the Lithuania’s accession were officially commenced on 15 February 2000 (as well as with the Republic of Latvia, the Slovak Republic, the Republic of Malta, the Republic of Bulgaria and Romania). It needs to be emphasised that although the Republic of Lithuania began to negotiate regarding its accession to the European Union in 2000, it was able to catch up with the socalled ‘first wave’ candidate countries and together with them has successfully completed the negotiations by the end of the year of 2002. Formally the negotiations for the accession to the organisation were declared as finished in Copenhagen on 13 December 2002. Therefore Lithuania was among the ten candidate countries officially invited to join the European Union. 5/7 Article 49 of the European Union Treaty provides the accession procedure to the European Union, meaning that the conditions of the accession and the amendments of the Treaties on establishment are defined in the Accession Agreement signed between the European Union Member States and the acceding countries. On 16 April 2003 in Athens the candidates together with the Member States signed the Accession Agreement to the European Union Treaty. Signing the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic 23 The application for the Lithuania’s accession to the EU was submitted by the Government of the Republic of Lithuania on 11 December 1995.
323
Republic of Lithuania Materials on of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, concerning the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic was undoubtedly considered as a historic event by both the Member States and the candidate countries. On the occasion of this event H.E. Mr. R. Paksas, the President of the Republic of Lithuania, held a speech in Athens. The President called the signing of the Treaty a historic and political act, which could be called a European Unity act. Furthermore, the President assured and underlined that Lithuania will be an active, responsible and creative member of the Union and through its creativity it shall contribute to the prosperity of the united Europe. 5/8 In accordance with the national laws of the Republic of Lithuania, another step that had to be taken in order to become a full member of the European Union. The referendum concerning the vital issue in the life of the State had to be organised to seek the approval of the nation to join the abovementioned international organisation. The Seimas on 27 February 2003 adopted the Resolution ‘On the announcement of a referendum on Lithuania’s membership of the European Union’24 providing that a referendum on Lithuania’s membership of the European Union is held on 10−11 May 2003, and the text concerning the vital issue of the life of the State and the nation is the latter one, ‘I am for Lithuania’s membership of the European Union’. In accordance with Article 7 of the Law of the Republic of Lithuania on the Referendum, a referendum is deemed having taken place, if over one-half of the citizens, having the right to vote and having been registered in voter lists, have taken part. In the referendum on Lithuania’s membership of the European Union, which was held on 10−11 May 2003, 63.37 per cent of the voters participated in the referendum. Article 7 of the
24
Valstybơs žinios ’2003 No. 23-959, Resolution No. IX-1350 of 27 February 2003.
324
International Law 2004 Law of the Republic of Lithuania on the Referendum25 also states that the decision regarding participation by the Republic of Lithuania in international organisations, should this participation be linked with partial transfer of some competences of Government bodies to the institutions of international organisations or the jurisdiction thereof, is deemed adopted if it has been approved by more than one-half of the voters who have participated in the referendum. Out of the above-mentioned 63.37 per cent of the voters participating in the referendum, 91.07 per cent approved Lithuania’s membership of the European Union, and only 8.93 per cent voted against. The result of the referendum in the Republic of Lithuania was a model to persuade the other candidate countries’ voters to express their approval of membership in the European Union. After the results of the referendum were presented to the President of the Republic of Lithuania, H.E. Mr. R. Paksas addressed the Lithuanian citizens and thanked Lithuanian nationals for the active participation in the referendum and congratulated their decision to approve Lithuania’s membership of the European Union. He stressed that this referendum could be called a perfectly passed examination, which disclosed that the Republic of Lithuania is a State in which the people make the principal decisions. 5/9 After the referendum, the Republic of Lithuania had to ratify the said Treaty in accordance with Articles 138 and 84 (1) of the Constitution of the Republic of Lithuania and deposit the Instrument of Ratification with the Italian Government, being the depositary of this Treaty. Finally on 16 September 2003 the Seimas ratified Accession Treaty.26 The Instrument of Ratification of the Treaty was conveyed to the Ambassador of Italy on 23 September 2003. During this symbolic ceremony, the Minister of Foreign Affairs of the Republic of Lithuania expressed the gratitude to Italy and 14 other Member States of the European Union and its institutions that took the historic decision to enlarge the European Union and have supported the candidacy of Lithuania in a variety of ways. The Instrument of Ratification of the Accession Treaty was deposited with the Italian Government on 10 October 2003 and the Treaty entered into force in regard to the Republic of Lithuania on 1 May 2004. Thus on 1 May 2004 the Republic of Lithuania became an equal member of the European Union. 25 26
Valstybơs žinios ’2001 No. 64-2570, Law No. IX-928 of 4 June 2002. Valstybơs žinios ’2003 No. 91(1)-4108, Law No. IX-1730 of 16 September 2003.
325
Republic of Lithuania Materials on Part Five: II. A. 2. (c) Subjects of International Law – international organisations – participation of States and international organisations in international organisations and in their activities – obligations of membership 5/10 The representatives of the candidate countries of the EU were already allowed to participate under the observer status and freely express their opinion regarding the proposals for the projects of the legal acts of the European Union. 5/11 During the annual meeting of the ambassadors accredited to Lithuania, which took place in Vilnius on 24−28 February 2003, Mr. A. Valionis, the Minister of Foreign Affairs of the Republic of Lithuania, underlined that dealing with the increasing variety of global challenges, maintaining the effectiveness of multilateral mechanisms such as the United Nations, remains highly pertinent. It was also stressed that Lithuania’s effort in this respect will include continuing participation in the United Nations-led peace operations, enhancing its role in the Human Rights Commission and extending development co-operation aid, among other things, as well as applying for Elected seats, such as the Economic and Social Council (ECOSOC) for the period of 2005−2007, and non-permanent membership on the United Nations Security Council for the period of 2014−2015. 5/12 Mr. A. Valionis, the Minister of Foreign Affairs of the Republic of Lithuania participated in the 58th session of the United Nations General Assembly and took part in the general debate of the Assembly. In a statement Mr. A. Valionis expressed his concern about the problem of Iraq and defined it as unfinished business. He also stated that although Iraq shows the first signs of recovery, as demonstrated by the appointment of the Governing Council and by the formation of preparatory constitutional committee, these positive developments should be further supported and encouraged. The Minister expressed Lithuania’s support to the United Nations in pursuance of the goals enshrined in the United Nations Charter and shared the view that multilateral institutions must be updated and reinforced. He said that terrorism and proliferation of weapons of mass destruction and their means 326
International Law 2004 of delivery continue to be on the list of the greatest security concerns of the international community. The Minister underlined that Lithuania, as a new State party to the Ottawa Convention, is committed to contribute practically to its implementation and promotion. The joining of the European Union and NATO by Lithuania and other Central and Eastern Europe countries in 2004 was noted as proof of the expanding zone of stability and democracy in Europe. It was also stated that Lithuania is ready to support substantial reform of the UN Security Council for the better, equitable representation in both categories, permanent or non-permanent, through inclusion of Germany and Japan, as well as certain other leading countries from other regions and welcomed the intention of the Secretary General to establish a High-Level Panel on Threats, Challenges and Change composed of eminent personalities to address responses to focus primarily on threats to peace and security, but also to examine other global challenges. (see also 16/1, 17/1) 5/13 In 2003 Lithuania had to prepare the report regarding the accomplishment of the provisions of the Convention on the Rights of Child. At the end of the year the report was submitted to the Government of the Republic of Lithuania, which had to consider and approve it by adopting the Resolution regarding the approval of the report on the implementation of the provisions. 5/14 Lithuania provided the assistance and shared its experience of a Chairman of the Committee of Ministers of the Council of Europe with other member States of the Council of Europe (Lithuania chaired this institution November 2001–May 2002). During the work visit to the Republic of Moldova on 14−18 June 2003, Mr. D. Jurgeleviþius, the State Under-Secretary of the Ministry of Foreign Affairs of the Republic of Lithuania (in 2003 he was appointed the diplomatic adviser to the Republic of Moldova for providing the assistance to chair the Committee of Ministers), imparted Lithuania’s Chair-experience to the officials of the Republic of Moldova and presented the basic issues to be resolved in order to be well prepared for holding a session of the said Committee in the Republic of Moldova.
327
Republic of Lithuania Materials on 5/15 During the year of 2003 the Republic of Lithuania prepared the report concerning the execution and implementation of the provisions of the European Social Charter (revised). The report was approved by the Government of the Republic of Lithuania Resolution No. 1331 of 28 October 28,27 and conveyed to the Council of Europe. Part Six: II. The Individual (including the Corporation) in International Law – diplomatic and consular protection 6/1 The main problems forcing Lithuanians to turn to their diplomatic service for assistance during the year of 2003 still mostly occurred in the territories of the Russian Federation, Kingdom of Spain, United Kingdom of Great Britain and Northern Ireland. Part Six: III. The Individual (including the Corporation) in International Law – aliens. 6/2 On 30 April 2002 under the Order of the Minister of the Interior the working group regarding the preparation of the joint project of the law on refugees and aliens (which would replace the laws in force) was formed. The main objective of the said group was to re-examine the valid laws, regulating the legal status of the aliens, as well as the legal status of the refugees and to unify the provisions concerning those people into one act. The work of the working group was successfully implemented in the project of the Law on the Legal Status of Aliens,28 which was approved on 12 August 2003 by the adoption of the Resolution of the Government of the Republic of Lithuania and currently and is submitted for the enactment to the Seimas of the Republic of Lithuania. The explanatory note concerning the adoption of the said law indicates that the main new provisions with comparison to the valid law are: 1. control of the legitimacy of the aliens` residence in the territory of Lithuania;
27 28
Valstybơs žinios ’2003 No. 102-4592, Resolution No. 1331 of 28 October 2003. Valstybơs žinios ’2003 No. 80-3666, Resolution No. 1031 of 12 August 2003.
328
International Law 2004 2. provisions, concerning the illegal aliens` admission to the Republic of Lithuania and residence; 3. provisions regarding the visa issue procedures; 4. provisions regulating the non-accompanied aliens minors prescnce in the territory of Lithuania; 5. provisions regarding the granting of the status of refugee, the supplementary and temporary security measures; 6. provisions regarding alien integration in the Republic of Lithuania; 7. provisions on the basis for alien detention and procedure and applicability of the alternative measures; 8. provisions regarding the determination of the alien identity; 9. provisions concerning aliens, where expulsion was postponed and deportation was not to take place in the six-month period; 10. provisions regarding the prohibition of the aliens to be admitted in the territory of the Republic of Lithuania. Part Six: IV. The Individual (including the Corporation) in International Law – members of minorities 6/3 In Lithuania almost 15.6 per cent of the total residents of the Republic are of non-Lithuanian origin. The absolute majority of the non-Lithuanian residents possess the nationality of the Republic of Lithuania, or have the permission (permanent or non-permanent) to reside in its territory. The main national minority groups are: Polish (6.7 per cent), Russian (6.3 per cent), Jewish (0.1 per cent), Belarus (1.2 per cent), Caraims (0.1 per cent), Tatars (0.1 per cent), Gipsies (0.1 per cent), German (0.1 per cent), Ukrainian (0.7 per cent), and other minorities (0.2 per cent). 6/4 On 24 September 2003 a Closed Joint-Stock Enterprise ‘Delfi’ applied to the General Prosecution of the Republic of Lithuania to investigate whether the commentaries in the enterprise’s internet portal instigate national hatred and constitute a breach of laws. 6/5 The Seimas Ethics and Procedure Commission examined the speech of a member of Seimas regarding the Islam and the Chechen nation and held that the statements were improper and have insulted the national minorities. 329
Republic of Lithuania Materials on 6/6 The Government of the Republic of Lithuania implemented two programs supporting the national minorities: The National Minorities’ Societies Cultural Activities Support Program and Roma Integration into the Lithuanian Society Program for the 2000−2004 year. The first program is permanent and envisages the measures for the protection of national minorities such as to teach their civil rights, to render assistance to the projects prepared by the national minorities, to promote the minorities culture and safeguard the identity, to maintain the house of National societies and to render help to its activities. Under the second program, the Roma Public Centre was established, providing the cultural, educational and other activities. Part Six: VIII. B. The Individual (including the Corporation) in International Law – human rights and fundamental freedoms – under the United Nations treaty system 6/7 In Jan Filopovich v. Lithuania,29 Mr. Jan Filipovich, a citizen of the Republic of Lithuania, was convicted in 1996 of premeditated murder. Mr. Filipovich in September 1991 got into fight with Mr. N. Zhuk, following which Mr. N.Zhuk was found unconscious and taken to the hospital where he was not operated on in due course and died. The complaint constituted three issues: (i) Mr. Filipovich alleged he was a victim of violation of the right to a fair trial under Article 14 (1) of the Covenant, because no importance was attached to the results of an investigation conducted by a Commission set up to determine the reason for the delay in the surgical operation and the diagnostic error. Therefore he was charged with premeditated murder and not with grievous bodily harm; (ii) the author claimed the violation of Article 14 (3) (c) of the Covenant, because although the investigation began in September 1991 (during the examination of the case both the applicant and the State party agreed that the duration of the proceedings should be counted as from the entry into force of Covenant, i.e. 20 February 1992 and not from the above stated date), he was not sentenced until January 1996 and this constituted undue delay; (iii) the author also 29
The Covenant on Civil and Political Rights (hereinafter referred to as the Covenant) and the Optional Protocol entered into force for Lithuania on 20 February 1992.
330
International Law 2004 alleged that there was a violation of Article 15 (1), because the penalty imposed was heavier than the one that should have been imposed at the time the offence was committed. The Committee with regard to the author’s allegations, took the view that the complaint is inadmissible for the lack of substantiation under Article 2 of the Optional Protocol, because in respect of the violation of Article 14 (1) it is generally for the courts of State parties, not for the Committee to review the facts in a particular case (all the evidence was examined by the Supreme Court) and there were no facts showing the evaluation by the courts was clearly arbitrary or amounted to a denial of justice. With regard to the author’s allegations concerning Articles 14 (3) (c) and 15 (1) of the Covenant, the Committee considered that these complaints have been sufficiently substantiated for the purposes of admissibility. The Committee drew attention to the fact that although the investigation began before the entry into force of the Covenant, the proceedings continued until 1996 and the State party has not given any explanation why four years and four months elapsed between the start of the investigation and the conviction in the first instance court. Therefore, the Committee concluded there was a violation of Article 14 (3) (c). With regard to the author’s allegations that he was sentenced to a heavier penalty than the one that should have been imposed at the time the offence was committed, the Committee took note that the author’s sentence of six years was well within the latitude provided by the earlier law (3 to 12 years) and that the State party has referred to the existence of certain aggravating circumstances. Consequently, there was no violation of Article 15 (1). The Government of the Republic of Lithuania on 2003 adopted Resolution No. 169130 regarding compensation to Mr. J. Filipovich for pecuniary and non-pecuniary damage. 6/8 In KĊstutis Gelažauskas v. Lithuania, the author, Mr. KĊstutis Gelažauskas, a Lithuanian citizen, was sentenced on 4 May 1994 together with the codefendant for murder and is currently serving a prison term of 13 years in Pravieniskes Penitentiary No.2. The victim was murdered in his home by Gelažauskas and another defendant after they had been drinking together. Both were found guilty as charged and were sentenced to the same period of imprisonment. Applications for cassation were made on behalf of the author on four occasions but a review of his case was always denied. Mr. 30
Valstybơs žinios ’2003 No. 123-5621, Resolution No. 1691 of 24 December 2003.
331
Republic of Lithuania Materials on Gelažauskas claimed to be a victim of a violation by Lithuania of: (i) Article 14 (5) of the Covenant on the grounds that he had no possibility to make an appeal against the judgment of 4 May 1994, as the court of first instance in this case was the Supreme Court and, under the State party’s legislation, its judgements are not subject to appeal; (ii) Article 14 (1) of the Covenant, as the prosecution has failed to prove that the author had a motive and an intention to commit offence and the Court failed to refer to this aspect of the offence in the written judgement, therefore it was unlawful to convict him of ‘pre-mediated murder’, also the prosecution failed to prove the causal link between the blows allegedly struck by the author and the death of the victim, therefore his conviction and the hearing was unfair; (iii) Article 14 (3) (g) of the Covenant, as Mr. Gelažauskas during the preliminary investigation was forced (threatened, beaten and deceived into giving a confession by the investigator) to admit that he had struck the victim twice, although in the later testimonies he insisted that the victim was stabbed by the co-defendant and he had not struck the victim. The Committee with regard to the author’s allegations of a breach of Article 14 (1) and 14 (3) (g) of the Covenant took a view that these allegations were raised during the trial and addressed by the Supreme Court and there were no facts showing the evaluation by the courts was clearly arbitrary or amounted to a denial of justice, therefore the author has not substantiated his claim and it was considered as inadmissible. Regarding the submission of a ‘supervisory protest’, the Committee noted that according to the last sentence of the judgement of 4 May 1994 ‘the verdict is final and could not be protested or appealed’ (cassation), therefore, the request for the submission of a ‘supervisory protest’ does not constitute a right to have one’s sentence and conviction reviewed by a higher tribunal under Article 14 (5). The Committee also drew attention to the fact that the submission of a ‘supervisory protest’ constituted an extraordinary remedy depending on the discretionary powers of the Chairperson of the Supreme Court, the Prosecutor-General or their deputies. Regarding the submission of a cassation motion, the Committee held that this extraordinary right is at the discretion of the authority who receives the request and does not constitute therefore an obligation to review a case decided by the Supreme Court at first instance. Although the State party referred to the author’s one-year delay for the cassation, the Committee noted that a time limit concerns cassation motions’ worsening the situation of the accused. Furthermore, the Committee cited the letters of the Supreme Court (from the Chairman of the Division of the Criminal Cases of the Supreme Court and from the Chairman of the Supreme Court) and drew attention to the fact that the basis for the 332
International Law 2004 rejection of the applications for cassation motion was based on other grounds and did not refer to the time limit. Therefore, the Committee concluded that this remedy did not constitute a right of review in the sense of Article 14 (5) because the cassation motion could not be submitted to a higher tribunal as it is required under the said provision. Under the Committee communication, the State party (Lithuania) was obliged to provide the author with an effective remedy, including the opportunity to lodge a new appeal, or if it would be impossible to give a due consideration of granting him release. The local court delivered a judgement granting Mr. K. Gelažauskas release from an imprisonment. Part Six: VIII. C. The Individual (including the Corporation) in International Law – human rights and fundamental freedoms – under Council of Europe treaty system 6/9 Admissibility decisions In Ramnjnas Gadliauskas v. Lithuania (application No. 62741/00) the applicant raised the question of breach of the ‘reasonable time’ requirement, laid down in Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred as the Convention). The complaint relates to the length of the criminal proceedings (the applicant was accused of blackmail) which were pending since November 1996 and by November 2001 had not been concluded (to date, the investigation has not been completed and the trial has not recommenced). 6/10 In Sidabras and Džiautas v. Lithuania (application No.55480/00 and No.59330/00), the applicants complained about the legal proceedings concerning their dismissal from employment under Articles 6 and 7 of the Convention. Relying on Article 8 they also complained about the current ban to apply for the employment in the public service or certain spheres in the private sector. Both applicants are former employees of the KGB. Mr. Sidabras found employment as a tax inspector at the Inland Revenue and Mr. Džiautas worked as a prosecutor at the Office of the Prosecutor General of Lithuania, investigating organised crime and corruption cases in particular. In 1999 both applicants were found subject to restrictions under Article 2 of the Law on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Permanent Employees of 333
Republic of Lithuania Materials on the Organisation (hereinafter referred as the Act) regarding their employment possibilities as they were former employees of the KGB and as a result both were dismissed from employment. Mr. Sidabras and Mr. Džiautas brought administrative actions claiming their unlawful dismissal and restrictions on their access to the employment, but their claims were unsuccessful. Furthermore, Mr. Sidabras complains that his dismissal under the Act is in breach of Article 14 of the Convention and Mr. Džiautas alleged that his dismissal and the restriction of the access to the employment prospects were incompatible with Article 10 combined with Article 14 of the Convention. European Court of Human Rights held that the applications are partly admissible, the part of the applications concerning the breach under Article 6 and Article 7 was declared as inadmissible. 6/11 In Ramnjnas Jankauskas v. Lithuania, Mr. R. Jankauskas submitted an application claiming different breaches under the Convention. Mr. R. Jankauskas, a former police investigator, was suspected of abuse of office and bribery. His detention on remand was ordered by the Šiauliai City District Court (March, 1999) on the fear of his absconding and influencing witnesses and under the same ground the detention was extended until October 2000 when he was sentenced to eight years imprisonment (judgement of Šiauliai Regional Court). The applicant claimed that the general conditions of detention in the prison and in particular his treatment did not conform to the domestic law provisions, thus constituting inhuman and degrading treatment and breaching Article 3. Under Articles 8 and 13, the applicant also complained that the prison authorities had on various occasions delayed or withheld his letters to various State authorities and claimed about the opening and reading by the administration of the Šiauliai remand prison of his letters to and from the Court and third persons. Under Article 5, Mr. R. Jankauskas claimed that his detention on remand was unlawful. The applicant also complained that the criminal proceedings were incompatible with Article 6, and that his civil action for defamation had been disallowed, and he had been unable to bring criminal proceedings for assault against a third person, also based on Article 6. The European Court held that (i) the applicant’s complain was considered inadmissible under Article 35 (1) from examining the applicant’s complaints concerning his detention conditions as well his complaint that prison authorities had on various occasions delayed and withheld his complaints about his detention conditions (Articles 3, 8, and 13) insofar as 334
International Law 2004 they have not been submitted to the administrative courts; (ii) part of the application concerning the complaints on detention on remand was not covered by the reasoned detention orders taken by the competent courts (Article 5), the breach of ‘reasonable time’ requirement and absence of a fair trial (Article 6) and requirement to pay the stamp duty in order to allow the applicant’s claim for defamation (Article 6) was declared as manifestly illfounded under Article 35 (3); (iii) the part of claim regarding the censorship by the Siauliai remand prison of his letters to and from third persons, in view of the parties’(Article 8) was declared admissible. 6/12 Judgments In Jasinjnienơ v. Lithuania, the applicant Mrs. Stasơ Jasinjnienơ alleged that (i) the nationalisation and destruction of her late mother’s property by the Soviet authorities and the Lithuanian authorities failure to return the property or to afford her a compensation breached Article 1 of Protocol No. 1 to the Convention, taken alone and in conjunction with Article 14 of the Convention, and (ii) that the failure of the Lithuanian authorities to execute the judgement of 3 April 1996 breached Articles 6 and 13. Under the Restitution of Property Act, municipal authorities (the Palanga City Counsel) have restored the property rights of the applicant and her sister to their late mother’s land, which was, following the Soviet occupation in 1940, nationalised. However, the forms of restitution (the land or the amount of money as the form of compensation) was not specified in the 3 April 1996 decision of the Klaipơda Regional Court, as well, as it was not clear whether Mrs. Jasinjnienơ should have been offered the land in the centre of the tourist resort of Palanga (as it was her mother’s original house plot), and for what price. Furthermore, there was no progress achieved following the court’s decision, repealing and ordering to correct the afore-mentioned drawbacks of the decision. In the course of events, the applicant had declined three offers made by local authorities for alternative parcels of land in various areas of Palanga, claiming that the location of proposed plots was inconvenient and the value was not equivalent to the plot she was entitled to and thus alleging her rights being discriminated. The Restitution of Property Act31 provides for two forms of restitution: 1) the return of the property in certain circumstances; 2) compensation in other cases (compensation can be made in land or money). On 27 May 1994 31
Valstybơs žinios ’1997 No. 65-1558, Law No. VIII-359 of 1 July1997.
335
Republic of Lithuania Materials on Constitutional Court examined the issue of the compliance of the domestic laws on restitution of property rights with the Constitution of the Republic of Lithuania. In its decision the Constitutional Court held inter alia that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as ‘property under de facto control of the State’. The Constitutional Court has also stated that the rights of a former owner to particular property have not been restored until property is returned or appropriate compensation is afforded. A fair compensation for property, which could not be returned, was compatible with the principle of the protection of property. In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of restitution of property rights in Lithuania essentially denoted partial reparation. On 8 March 1995 Constitutional Court also ruled that a person who qualifies for the compensation for property, which cannot be returned is entitled to choose the form of compensation (land or money) by giving written permission for the authorities to proceed with the decision. The executive authorities have discretion to decide on appropriate compensation in each case, but a person is entitled to contest that compensation by way of a court action. Under the 18 Article of the Restitution of Property Act (as it was amended on 2 June 1999), the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property, which could not be returned. Under Article 372 of the Code of Civil Procedure of the Republic of Lithuania (no longer in force, as the new Code of Civil Procedure entered into force on 1 January 200332), a court judgment, which has come into force is binding and must be executed. The European Court held that in the judgment of 3 April 1996 the Klaipơda Regional Court did not deny the applicant’s claims regarding the plot, but it required the local authorities to take appropriate measures to choose the form of compensation. Although the applicant had refused the offers of the various ways of compensation for the three times, the authorities under the above-mentioned law were unable to finalise the question of compensation without the applicant’s prior approval. Therefore, the European Court held that there has been a violation of Article 6 (1), as the Court’s judgment of 3 April 1996 remained valid to this date and placed the obligations on the executive and not on the applicant. The European Court has also held that there has been a violation of Article 1 of Protocol No. 1 regarding the non-execution of the judgement of 3 April 1996. The European Court drew attention that ‘a claim’ can constitute a ‘possession’ 32
Valstybơs žinios ’2002 No. 36-1340, Law No. IX-743 of 28 February 2002.
336
International Law 2004 within the meaning of Protocol No.1 if it is sufficiently established to be enforceable. Therefore, the European Court considered, that the applicant with an enforceable claim constituted a ‘possession’ within the meaning of Protocol No.1 and the impossibility for the applicant to obtain the execution of the judgement constituted an interference with Mrs. Jasinjnienơ right to peaceful enjoyment of possessions (the Court has also cited the Burdov judgement). The European Court did not consider the complaint under Article 13, as Article 6 is lex specialis in regard to this part of application. To the extent that the applicant complained about her inability to recover the plot in kind following the re-establishment of the Lithuanian State, the Court recalled that the Convention does not guarantee, as such, the right to restitution and this complaint is incompatible ratione materiae with the provisions of Protocol No.1 within the meaning of Article 35 (3). The European Court has also ruled out that it was not competent ratione temporis to examine the nationalisation of the plot and the destruction of her late mother’s house by the Soviet authorities in the 1960s as it relates to the events prior to 20 June 1995, which is the date of the entry into force of the Convention with regard to Lithuania, and 24 May 1996, i.e. the date of the entry into force of Protocol No.1 with regard to Lithuania. The Court also found that there was no violation of Article 14 in conjunction with Protocol No.1. 6/13 In Meilus v. Lithuania, the applicant Mr. Raimundas Meilus complained under Article 6 (1) of an excessive length of criminal proceedings constituting a breach of the ‘reasonable time’ requirement. The criminal proceedings against Mr. Meilus began in November 1994 (he became a suspect in a criminal fraud case and by the year of 1996 he and other four co-accused persons were charged of five counts, including cheating and embezzlement) and by 30 May 2002 (the date of adoption of admissibility decision) had not been concluded. In fact, on 15 October 1998 the applicant was convicted by a judgement of the Kaunas City District Court but the conviction was subsequently quashed by the cassation Supreme Court of the Republic of Lithuania (hereinafter referred as the Supreme Court) and the investigation was renewed. At the time of procedure in the European Court, the applicant’s trial was pending before the first instance domestic court. The European Court said that the reasonableness of the length of proceedings must be assessed in the light of particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in 337
Republic of Lithuania Materials on particular the complexity of the case and the conduct of the applicant and of the authorities dealing with this case. It referred to the judgement in Šleževicius v. Lithuania case No. 55479/00. The European Court held that ‘in view of the fact that the trial is pending at first instance to this date, the Court considers that it is up to the Government to justify such a long lapse of time since the start of the proceedings.’33 Although the Court emphasised that the proceedings may be deemed complex, owing inter alia to the number of the accused (five) and the nature of the alleged offences, i.e. the financial impropriety allegedly committed by the applicant, it said the Government failed to explain the delay in dealing with the case. The European Court therefore held that this situation was unacceptable from the point of view of Article 6 (1) and constituted a violation. 6/14 In Siauruseviþius v. Lithuania, the applicant Mr.Vidmantas Siauruseviþius complained inter alia that he had been refused access to the Supreme Court in criminal proceedings for kidnapping in breach of Article 6 (1) of the Convention. The Vilnius Regional Court convicted the applicant on two counts of kidnapping and sentenced him to two years and six months’ imprisonment. Two co-defendants were convicted alongside the applicant. The Court of Appeal of the Republic of Lithuania dismissed the applicant’s appeal and amended the applicant’s sentence to five years imprisonment. In December 1998 the Supreme Court examined a cassation appeal by one of the co-defendants, upholding the lower courts’ decisions regarding this person’s conviction. The applicant submitted a cassation appeal on 29 December 1998 and by a letter of 7 January 1999, the Acting President of the Supreme Court informed the applicant that his cassation appeal could not be examined as it was ‘repetitive’ since the question of his guilt had been already finally determined by the decision of the Supreme Court of 8 December 1998. The Acting President did not state any other reasons for disallowing the applicant’s cassation appeal. Pursuant to Article 417 (3) of the Code of Criminal Procedure of the Republic of Lithuania (no longer in force, as the new Code of Criminal Procedure entered into force 1 May 200334), ‘repetitive cassation appeals’ cannot be examined. A cassation appeal shall be considered as ‘repetitive’ where it concerns the same subject-matter that has been examined on cassation appeal lodged by another party to the proceedings. The applicant 33 34
Meilus v. Lithuania, Case No. 53161/99 (2003), ECHR. Valstybơs žinios ’2002 No. 37-1341, Law No. IX-785 of 14 March 2002.
338
International Law 2004 complained that he was deprived of access to the Supreme Court as his cassation appeal was unlawfully disallowed as being ‘repetitive’ and that the criminal proceedings at first and appeal instances were unfair, that the courts were not impartial, that his defence rights were not respected and that the presumption of innocence was breached. Although the applicant had died in November 2000, the European Court decided the widow could continue the proceedings. The Government of the Republic of Lithuania recognised a violation of the Convention in view of the deprivation of the applicant’s right to access to a court within the meaning of Article 6 (1). The Government and the applicant’s widow have reached a friendly settlement pursuant to Article 38 (1) (b) of the Convention. 6/15 In Girdauskas v. Lithuania the applicant, Mr. Vytas Girdauskas complained that the proceedings were unfair and excessively long in breach of Article 6 (1) of the Convention. The applicant was suspected of committing the various financial irregularities. Criminal proceedings were instituted in this respect on May 1995. On May 1996 he was charged with appropriating property and embezzlement. In July 1996 the Kaunas City District Court committed the applicant for trial, but in October 1996 the case was remitted to the prosecution for further investigation. Although the Kaunas Regional Court quashed the decision of the lower court, the Kaunas City District Court adjourned the examination of the case in order to conduct an audit of an enterprise owned by the applicant, which was not completed until December 2001. Mr. Girdauskas was convicted on two counts in April 2002, but later (in April 2003) he was acquitted on one of the charges against him. The European Court has stressed that proceedings in the present case are still pending before the Supreme Court, as the applicant submitted the cassation appeal and therefore they have so far lasted for more than 8 years and 5 months. The Court further highlighted the fact that Government has failed to justify the delay required for the authorities to deal with the case, in particular, the conduction of an audit. Therefore, the European Court held that this situation could not be acceptable from the point of view of Article 6 (1).
339
Republic of Lithuania Materials on Part Six: VIII. D The Individual (including the Corporation) in International Law – human rights and fundamental freedoms – other aspects of human rights and fundamental freedoms 6/16 The Law of the Republic of Lithuania on Equal Opportunities was adopted on 18 November 2003. The law in accordance with Article 14 enters into force on 1 January 2005 and will change the Law on Women and Men Equal Opportunities. The purpose of the said law – to ensure that the human rights, enshrined in the Constitution are respected, i.e. the prohibition of the direct and indirect forms of discrimination in accordance with age, sexual orientation, disability, race or ethnic origin, religion or belief. The law comprises 6 Chapters: I. – General Provisions; II – Execution of the equal Opportunities; III – Breach of Equal Opportunities; IV – The Control and Execution of the Law; V – Submission of Complaints and Investigation; VI – Final Provisions. 6/17 The year of 2003 is significant with many changes in the national law of the Republic of Lithuania, as the new Codes that replaced previuous ones have entered into force: Civil Code of Procedure of the Republic of Lithuania (1 January 2003), Labour Code of the Republic of Lithuania (1 January 2003), Criminal Code of the Republic of Lithuania (1 May 2003), Criminal Procedure Code of the Republic of Lithuania (1 May 2003) and Punishment Execution Code (1 May 2003), regulating the rights and obligations of the nationals of Lithuania, as well as the rights and obligations of the foreigners. (See also Part Four: III) Part Seven: I. A. The State and its Organs - the composition of the State – Head of State 7/1 The official visits of the President of the Republic of Lithuania were organised to Georgia, Armenia and Holy See and 17 working visits to the Kingdom of Belgium, Kingdom of Denmark, Republic of Estonia, Hellenic Republic, Republic of Latvia, Republic of Poland, Republic of France, Republic of Finland etc. There were 14 visits to the foreign countries organised for the Chairman of Seimas. 340
International Law 2004 7/2 The main change in the composition of the State in year of 2003 was the appointment of the newly elected President of the Republic of Lithuania. In accordance with Article 85 of the Constitution of the Republic of Lithuania the President of the Republic settles basic foreign policy issues and, together with the Government, implements foreign policy. Therefore the appointment of a person elected by the universal suffrage expressing the will of the Lithuanian voters, i.e. the nationals of Lithuania, is among the decisive moments in the foreign policy of the State. The elections took place on December 2002 – January 2003, as 2 voting rounds were required for the President of the Republic of Lithuania to be elected. Under Article 78 of the Constitution ‘the President of the Republic shall be elected by the citizens of the Republic of Lithuania on the basis of universal, equal, and direct suffrage by secret ballot for a term of five years.’35 Seventeen candidates put forward their candidatures to the office of President of the Republic of Lithuania, representing different political parties of Lithuania. The main rivals were determined after the voting round 1: the former President of Republic of Lithuania Mr. Valdas Adamkus and a new candidate for the office of the President – ex-mayor of the Vilnius city, ex-Prime Minister and pilot, Mr. Rolandas Paksas. The second voting round and the election campaign contest was a furious struggle between the two above-mentioned rivals. Mr. Paksas collected the majority votes (54.71 per cent) and was recognised as the newly appointed President, although preponderance over his rival was imperceptible (former President Adamkus received 45.29 per cent of the votes). 7/3 During the inaugural ceremony at the Seimas of the Republic of Lithuania Mr.R.Paksas has emphasised the priority goal – to build a welfare state where unemployment and poverty levels are low, labour value is high, and social guarantees are solid. The President also held that foreign policy priorities express the fundamental interests of the nation – to ensure peace, security, prosperity and respect for the individual. The President confirmed the State’s efforts to continue to contribute to the international security and peacekeeping. He also concluded that being aware that time is the most precious value Lithuania cannot remain passive observer, watching how the world is hit by the threats of the third millennium. He declared that Lithuania 35
Valstybơs žinios ’1992 No. 33-1014.
341
Republic of Lithuania Materials on will never be a passive observer when dealing with these threatening problems. Furthermore, the President stressed the nearest goals of the foreign policy are unchangeable, i.e. the Republic of Lithuania has to pursue its integration into the European Union and NATO, and develop the good neighbour relations and regional co-operation. 7/4 Although Mr. Rolandas Paksas on the 5 January 2003 was appointed as the new President, his election campaign was broadly criticised in public for being closely related with the representatives of the organised crime and for being seconded with their financial support. Under the Seimas Resolution ‘On the composition of the special investigation commission’,36 the Special investigation commission was formed of the 6 representatives of the Seimas Members and 6 lawyers who are employed at courts, investigative structures, or prosecutor’s office to investigate whether there are grounds to institute impeachment proceedings against the President in the Seimas or whether such grounds do not exist. President Paksas is charged with the following (the motion for starting the procedure of impeachment of the President by a group of the Seimas members, signed by 86 of the 141 total members): 1. having become and being vulnerable due to his acts, which in view of a particular constitutional status of the President of the Republic, in view of the power and authority granted to the President of the Republic by the Constitution and the Laws, and in view of his role in domestic and international policies has posed threats to the national security of Lithuania, the President of the Republic has grossly violated the Constitution and breached the oath of office, 2. having failed to ensure protection of a State secret, he has grossly violated the Constitution and breached the oath of office, 3. having taken action to unlawfully influence the activities of private economic entities, to unlawfully exercise the authority of his own and State institutions with an aim to affect decisions of private individuals and private economic entities in their economic relations, he has grossly violated the Constitution and breached the oath of office, 4. with the conflict of interests present in the case of the President of the Republic, he has grossly violated the Constitution and breached the oath of office, 36 Valstybơs žinios ’2003 No. 121-5467, Resolution No. IX-1954 of 23 December 2003.
342
International Law 2004 5. having failed to take action to ensure harmonious functioning of institutions of power and having interfered with their harmonious functioning, having discredited the authority of powers, and having preconditioned non-fulfilment of the constitutional authority of the President of the Republic, he has grossly violated the Constitution and breached the oath of office, 6. having fulfilled his duties in a negligent way, having failed to set limits to the scope of competence of public servants (civil servants of political (personal) confidence) that are the staff of the Office of the President of the Republic, which preconditioned their abuse of authority, and having failed to take action to prevent abuse of authority by individual civil servants of political (personal) confidence that are the staff of the Office of the President of the Republic in their exercise of duties, he has grossly violated the Constitution and breached the oath of office. Part Seven: I. A. The State and its Organs - the composition of the State – Ministers 7/5 The Prime Minister (11 visits to the foreign countries) and the Minister of Foreign Affairs (42 visits to the foreign countries) have actively participated in the maintenance of the good relations with the foreign countries and in representation of Lithuania, its foreign policy goals. 7/6 The Government continues to be headed by the Prime Minister Mr. Algirdas Brazauskas, who was appointed by the President according to Article 92 (1) of the Constitution with approval of the Seimas, in 2001, after the elections of Seimas. 7/7 During 2003, there was only one minister of the designated members of the Government in 2001 who has resigned and a new one was appointed by the President of the Republic on the nomination of the Prime Minister in accordance with the Article 92 (2) of the Constitution. The Minister of the Interior was forced to resign after an investigation stated he unlawfully and insubstantially publicly accused the General Commissioner of the Police Department under the Ministry of Interior of committing a violation of the laws of the Republic of Lithuania by collecting personal data without 343
Republic of Lithuania Materials on permission. The newly appointed Minister of Interior was the former State Secretary of the Ministry of Interior. Part Seven: I. D. The State and its Organs - the composition of the State – departments of the State 7/8 The structure of the Ministry of Foreign Affairs of the Republic of Lithuania was modified in accordance with the future membership in the international organisations and the new challenges for the Lithuanian foreign policy. Under Order No. 63 of the Minister of Foreign Affairs adopted on 7 April 2003 the Integration to the European Union department was reorganised into the European Union Department with the General Affairs and Coordination (instead of the former Economic Co-operation Division), Institutional Affairs (instead of the former Political Co-operation Division) and Common Foreign and Security Policy Divisions and the functions of the said department were respectively changed. Also under the same Order the other Ministry’s departments were reorganised into Europe Department (instead of former First Bilateral Relations Department), Americas, Africa, Asia and Pacific Ocean Department and Eastern Europe and Central Asia department (instead of former Second Bilateral Relations Department). The Department of Multilateral Relations was supplemented with the Human Rights and NGOs Division. Furthermore, the Security Policy Department was established also in the middle of 2003 including Threat Analysis, Crisis Management and International Operation (the latter division was established also in 2003), NATO Integration and Arms Control, Non-proliferation and Disarmament Divisions (the last two were incorporated in this Department in 2003). 7/9 The Minister of Foreign Affairs on 21 November 2003 adopted Order No. 198 regulating the present and perspective future structure of the Ministry of Foreign Affairs and determining the number of the Ministry’s and diplomatic missions and consulates personnel. 7/10 The reorganisation of the European Committee under the Government of the Republic of Lithuania took place in accordance with the provisions of 344
International Law 2004 Resolution No. 100137 adopted by the Government of Republic of Lithuania on 12 August 2003. Part of its functions were transferred to the Office of the Government of Republic of Lithuania and to the Ministry of Economy of the Republic of Lithuania. Part Seven: I. E. The State and its Organs - the composition of the State - Diplomatic missions and their members 7/11 On 24−28 February 2003, the Annual Meeting of the ambassadors accredited to Lithuania took place in Vilnius. The Meeting was held under the auspices of the President Paksas, Mr. Valionis, Minister of Foreign Affairs, ambassadors accredited to Lithuania and other representatives of the State institutions. The President stressed that on the cusp of Lithuania’s integration into the European Union and NATO the main emphasis should be put on meeting its commitments, both national and international, as Lithuania will be judged by its ability to deliver its promises. President also stated that relations with neighbouring States will remain an important political priority, as Lithuania will maintain traditional partnerships with Poland as well as the Baltic and Nordic countries. Russia, its Kaliningrad region and the Northwestern region, together with Belarus and Ukraine, will demand constant attention. President of Lithuania indicated the short-term tasks of Lithuania’s foreign policy that have to be addressed before joining the EU and NATO: 1. Creation of the conditions for making full use of the advantages of the EU and NATO membership and for consolidating the place of our country in the Euro-Atlantic community. 2. Demonstration of the ability to act as a reliable and responsible State that is not interested only in its parochial affairs by its policy and practical action, i.e. the fight against terrorism (Lithuania will support to the best of its ability the efforts of the United States and European democracies to safeguard peace and ensure security not only in Europe but also in the other regions of the world. Lithuania will not remain a passive observer in the international community, first of all the United Nations, NATO and the European Union, if the latter would call their members to action in order to prevent possible crisis) and the Iraq crisis, which can be qualified as a test of solidarity of the international community. (In the face of crisis Lithuania would be able to count on external support only if it contributes to crisis resolution and defends the shared values). 37
Valstybơs žinios ’2003 No. 80-3638, Resolution No. 1011 of 12 August 2003.
345
Republic of Lithuania Materials on 3. Neighbourly relations with Lithuania’s traditional partners – the Baltic and the Nordic countries and Poland – will acquire additional value after joining the EU and NATO. 4. Taking of even more active steps to enhance the area of freedom and democracy. 5. Improvement through greater efforts of Lithuanian diplomacy of the country’s well being as well as its image. 7/12 The Minister of Foreign Affairs also indicated in the meeting the latter priorities of Lithuanian foreign policy: 1. Lithuania’s contribution to building a strong and prosperous Europe; 2. maintaining NATO’s viability as a collective defence organisation; 3. contribution to maintaining a stable international system based on the rule of law and multilateral cooperation; 4. promotion of Lithuania’s economic interests in an era of increasing globalisation; 5. representation and protection of the Lithuanian nationals abroad. 7/13 The 85th anniversary of diplomatic service of the Republic of Lithuania was celebrated on 13−14 November 2003. The Ministry of Foreign Affairs of the Republic of Lithuania together with the Institute of International Relations and Political Science organised a conference in order to pay homage to the diplomats of the Republic of Lithuania. President Paksas called the 85th anniversary of diplomacy of the Republic of Lithuania an important event in the history of Lithuania. Although he noted that the sources of the Lithuanian diplomacy could be traced to the middle ages, only in the 20th century, after regaining the independence, was the Republic of Lithuania capable to establish its valuable network of diplomacy. He recalled that the Ministry of Foreign Affairs was established under the decision of the Lithuanian State Council in 3 November 1918. On 7 November 1918 Professor Augustinas Voldemaras took up the post of the first Lithuanian Minister of Foreign Affairs. Thus, 7 November 1918 signifies the date of the beginning of the Lithuanian Diplomatic Service. In 1918 Lithuania, having declared its independence in a very complex geopolitical environment, needed not only a volunteer army able to defend the country from the aggression, Lithuania also was in need of a diplomatic service, which could consolidate the achievements of the volunteers at the battlefield – that is to 346
International Law 2004 obtain the de jure recognition of the State and the State frontier as well as to establish good relations with neighbouring and other countries, and to bring Lithuania into the international organisation of the League of Nations. These were enormous objectives for the nation, which had lived under the oppression of the tsarist Russia for more than a hundred years and which was devastated by the World War I. Equally, the diplomatic service of Lithuania has attained important goals after independence was restored in 1990, i.e. international recognition, withdrawal of the armed forces of the Russian Federation from the territory of the Republic of Lithuania, strengthening of the good neighbourly relations and the membership in the European Union and NATO. The President has stressed that diplomacy was able to deal with such complicated tasks as the normalisation of relations with Poland, negotiations with European Union, solution of the problem of transit to the region of Kaliningrad and many others. Furthermore, it was concluded, that after the membership in the said international organisations, the new foreign policy’s objectives are challenged to be achieved, therefore diplomacy through active foreign policy’s participation will always remain a main contributor the Lithuania’s foreign policy execution. 7/14 Minister of Foreign Affairs of the Republic of Lithuania in his speech recognised that the diplomatic service includes about 800 civil servants. Despite the size of diplomatic service, the Minister rejoiced over the successful achievement of goals of the foreign policy of the Republic of Lithuania. The establishment of the new diplomatic missions and the broadening of personnel staff of already founded diplomatic missions is of the vital importance goals in order to ensure that the Republic of Lithuania will be fully and in time prepared for the new challenges of the foreign policy and its execution. 7/15 In 2003 the foundation of new diplomatic missions and the enlargement of the already established ones was directly affected by the membership in the EU and NATO. The diplomatic mission of the Republic of Lithuania to the Republic of Ireland in Dublin38 was founded by the approval of the Government of the Republic of Lithuania in resolution No. 1078 dated 29
38
Valstybơs žinios ’2003 No. 83-3794, Resolution No. 1078 of 29 August 2003.
347
Republic of Lithuania Materials on August 2003, although the resolution states that the mission is established on 1 October 2003. 7/16 The enlargement of the special attaché network in the diplomatic missions of the Republic of Lithuania in 2003 also needs to be emphasised. This enlargement is directly influenced by the accession to the European Union and the future perspectives and membership obligations. Although under the provisions of the Regulations of the Special Attaché of the Republic of Lithuania39 (approved by the Government of the Republic of Lithuania Resolution No.1407 in 12 December 1997) the special attaché is not considered as a diplomat, he has the diplomatic immunities and privileges conferred to, as he is treated to be the member of the administrativetechnical personnel, while working abroad. The main enlargement of the special attaché network in 2003 is attributed to the Lithuanian Republic Mission to the European Communities: attaché for fiscal affairs.40 (Government Resolution No. 39 of 13 January 2003), attaché for telecommunication and post41 (Government Resolution No. 109 of 28 January 2003), attaché for health42 (Government Resolution No.196 of 7 February 2003), attaché for veterinary and phytosanitary43 (Government Resolution No. 424 of 8 April 2003), attaché for home affairs and its assistant44 (Government Resolution No. 458 of 11 April 2003), attaché for social security and labour45 (Government Resolution No. 596 of 14 May 2003), attaché for science and education46 (Government Resolution No. 823 of 25 June 2003), attaché for internal market47 (Government Resolution No. 1228 of 7 October 2003), attaché for structural policy48 (Government Resolution No. 1651 of 23 December 2003). The special attaché posts have been established also for the Lithuanian Embassy in the Kingdom of Spain
39
Valstybơs žinios ’1997 No. 116-2961, Resolution No. 1407 of 12 December 1997. Valstybơs žinios ’2003 No. 5-209, Resolution No. 39 of 13 January 2003. 41 Valstybơs žinios ’2003 No. 11-406, Resolution No. 109 of 28 January 2003. 42 Valstybơs žinios ’2003 No. 15-613, Resolution No. 196 of 7 February 2003. 43 Valstybơs žinios ’2003 No. 35-1479, Resolution No. 424 of 8 April 2003. 44 Valstybơs žinios ’2003 No. 36-1582, Resolution No. 458 of 11 April 2003. 45 Valstybơs žinios ’2003 No. 48-2129, Resolution No. 596 of 14 May 2003. 46 Valstybơs žinios ’2003 No. 61-2803, Resolution No. 823 of 25 June 2003. 47 Valstybơs žinios ’2003 No. 95-4289, Resolution No. 1228 of 7 October 2003. 48 Valstybơs žinios ’2003 No. 122-5518, Resolution No. 1651 of 23 December 2003. 40
348
International Law 2004 (police attaché,49 by the Resolution No. 1365 of 4 November 2003), Embassy in the Republic of Poland (police attaché,50 by the Resolution No. 1365 of 4 November 2003), Embassy in the Kingdom of Netherlands (police attaché,51 by the Resolution No. 1365 of 4 November 2003; attaché for commercial affairs,52 by the Resolution No. 1384 of 6 November 2003), Consulate General in St. Petersburg (Russian Federation, attaché for commercial affairs53 by the Resolution No. 1384 of 6 November 2003). Part Seven: I. E. The State and its Organs - the composition of the State - consulates and their members 7/17 Mr. Valionis expressed his view of the necessity of the improvement of the effective consular service network, providing the assistance for the nationals of Lithuania during the Annual Meeting of the ambassadors accredited in Lithuania. He also stated that for the above-mentioned reasons the quality of the work of the consular service needs to be improved, by speeding up the distribution of the documents, shortening the procedures for the passport replacement, solving the problems of the lost persons, persons who were robbed or by other means haves suffered injuries, and ensuring that consular assistance is provided in the countries where Lithuania does not have an established diplomatic mission or consulate. Therefore the extension of the network of the Consulates of the Republic Lithuania, as well as the abovementioned diplomatic missions, plays the important role in the representing the State interests. 7/18 The main issue to be resolved in the year of 2003 was the transit of the nationals of the Russian Federation between the Kaliningrad region and the rest of other Russian territory. During the European – Russia summit in 11 November 2002 both States reached a joint statement on transit between the Kaliningrad region and the rest of the Russian territory. The problem of transit was indeed a real foreign policy’s challenge for the Republic of Lithuania, as it was left to solve the problem by itself. Lithuania had to 49
Valstybơs žinios ’2003 No. 105-4710, Resolution No. 1365 of 4 November 2003. Valstybơs žinios ’2003 No. 105-4710, Resolution No. 1365 of 4 November 2003. 51 Valstybơs žinios ’2003 No. 105-4710, Resolution No. 1365 of 4 November 2003. 52 Valstybơs žinios ’2003 No. 106-4752, Resolution No. 1384 of 6 November 2003. 53 Valstybơs žinios ’2003 No. 106-4752, Resolution No. 1384 of 6 November 2003. 50
349
Republic of Lithuania Materials on negotiate with the Russian Federation, while the Russian Federation refused to consider the transit as a problem and did not pay much attention to the introduction Lithuanian visa regime for the nationals of the Russian Federation. On 28 February 2003 the European Commission and the Republic of Lithuania signed ‘Financial Memorandum’ on Kaliningrad transit programme financing. However, the Republic of Lithuania had to conclude an agreement with the Russian Federation regulating the terms and procedure of the transit between the Kaliningrad region and the rest of the other Russian territory54 (signed on 20 June 2003). It needs to be emphasised that question of transit between the Kaliningrad region and the rest of the other Russian territory was also closely and directly related with the non-ratification by the Russian Federation Government the Treaty Concerning the State Border between Lithuania and Russia55 concluded with the Government of the Republic of Lithuania and the Treaty Concerning Delimitation of the Exclusive Economic Zone and the Continental Shelf in the Baltic Sea56. After the long negotiation process it was finally agreed that both treaties will be ratified by Russian in the near future and therefore there would be no obstacles for its entrance into force (they both entered into force on 12 August 2003). Also many difficulties plagued the negotiations regarding the text of the Readmission agreement,57 which was the main document ensuring the transit system’s applicability in practice. Only after long debates the final text was signed in Vilnius on 12 May 2003 and the Agreement entered into force on 21 August 2003. The enforcement of the Kaliningrad transit programme, among the other issues (activity on legal harmonisation, administrative issues and informational technologies), included the enlargement of the personnel in the Ministry of Foreign Affairs, the Diplomatic Mission to the Russian Federation and the Consulates General in Kaliningrad and in St. Petersburg. The Government of the Republic of Lithuania in Resolution No. 532 of 25 April 2003, ‘On the Approval of the Special Kaliningrad Transit Program for Year 2003−2004 (before Lithuania’s membership in the European Union)’ provided the establishment of the Facilitated Transit Document Division in the Consular Department of the Ministry of Foreign Affairs (22 diplomatic and State servicemen), the enlargement of the staff of the Lithuanian 54
Valstybơs žinios ’2003 No. 61-2774. Valstybơs žinios ’1999 No. 100-2891. 56 Valstybơs žinios ’1999 No. 100-2886. 57 Valstybơs žinios ’2003 No. 53-2360. 55
350
International Law 2004 Embassy in the Russian Federation (7 diplomatic and State servicemen) and in Lithuanian Consulates General in Kaliningrad (51 diplomatic and State servicemen), St. Petersburg (6 diplomatic and State servicemen). As the enlargement and the work itself with the Facilitated Railway Transit Documents and Facilitated Transit Documents was new, it required the persons to be trained for this specific work. It took two weeks of intensive coursework, which included the lectures provided by the State service of the competent authorities, psychological training and the training tour to Moscow by a special train, in order to be prepare the workers to perform the new duties involved in delivering the documents necessary for the transit for the nationals of the Russian Federation. 7/19 On 31 March 2003 the Lithuanian Consulate in Sovetsk, Russian Federation was founded by the 10 March 2003 resolution No. 308.58 By the said resolution the Lithuanian Consulate in Daugavpils, Republic of Latvia was liquidated. Part Seven: IV. A. The State and its Organs – privileges and immunities – State immunity 7/20 The question of foreign State immunity was raised in the Supreme Court’s ruling of 7 May 2003 in Norwegian enterprise Vilnius Property AS v. Embassy of Russian Federation (case No. 3K-3-566/2003) while examining the cancellation of the lease treaty. The plaintiff – a Norwegian enterprise – had concluded with the Social maintenance division to the Embassy of the Russian Federation a lease contract of the premises for the period of 10 years. In 1999, the Social maintenance division communicated the Norwegian company its intention to cancel the contract because the costs of the lease in the city of Vilnius have decreased and therefore the division was prepared to move out of these premises. The plaintiff refused to accept the above-mentioned proposal. However, in February 2000, the plaintiff and defendant concluded the acceptance-transmission agreement. After a while, the plaintiff found out that the respondent was mistaken by the forged notification (delivered by fax) of the Norwegian enterprise informing of its readiness to accept the cancellation of the lease treaty. Therefore, the 58
Valstybơs žinios ’2003 No. 26-1045, Resolution No. 308 of 10 March 2003.
351
Republic of Lithuania Materials on plaintiff informed the Social care division to the Embassy of the Russian Federation and brought an action in court claiming that the lease contract was cancelled unlawfully. The Vilnius Regional Court rejected the applicant’s arguments claiming that the provisions of the lease contract provided for the cancellation of the contract before the period of its expiration under the mutual agreement of both parties (contract Point 6.1 (a)). The consent of both parties, as the Court held, was clearly expressed by concluding the acceptance-transmission agreement, under which the tenant (Social maintenance division to the Embassy of Russian Federation) transferred the premises and the lessor (Norwegian enterprise) accepted it. Therefore, the Vilnius Regional Court stated that there is no evidence proving that the Social maintenance division to the Embassy of Russian Federation has cancelled the contract unlawfully. The Court of Appeal upheld the decision. The Supreme Court firstly drew attention to the fact that the defendant in the case is the Russian Federation and there is a necessity to establish the character of the relationship between the plaintiff and the defendant. The court had to determine whether the Embassy’s acts should have been regarded as acta jure imperii or acta jure gestionis. The Supreme Court noted that under Article 479 of the Civil Procedure Code of the Republic of Lithuania (no longer in force, as the new Civil Procedure Code entered into force on 1 January 2003), a foreign State has immunity only in relationships regulated by the public law and not the ones regulated by private law. Therefore, the claim could be brought against the Embassy in the established order as it is provided in Point (a) of Part 1 of Article 31 of the 1961 Vienna Convention on Diplomatic Relations.59. The Supreme Court indicated that modern international law and international law doctrine recognise the State’s right to enjoy the same rights as the private subjects do in the relationships regulated by private law. The Supreme Court also held that there was no infringement by the cancellation of the lease contract, as the contract was formed by the parties and the conclusion of the acceptance-transmission agreement served as proof that the contract was cancelled with the mutual consent of both parties. The Supreme Court upheld the decision of the lower courts.
59
Valstybơs žinios ’1999 No. 83-2455.
352
International Law 2004 Part Fourteen: II. F. 2. Peaceful Settlement of Disputes – Means of settlement – arbitral tribunals and commissions other than the Permanent Court of Arbitration 14/1 The question of the execution of foreign awards was examined in the Supreme Court’s ruling of 26 February 2003 in Chernygov State Forestry Union ‘Chernygovles’ v. Joint-stock enterprise ‘Alytaus achemija’ (case N. 3K-3-278/2003). The International Commercial Arbitration Court under the Ukraine Chamber of Commerce and Industry, by its award of 8 December 2000 has obligated the Joint-Stock enterprise ‘Alytaus achemija’ to pay Chernygov state forestry union ‘Chernygovles’ the debt and the expenses of the arbitration. The plaintiff (‘Chernygovles’) pleaded this award must be recognised and executed immediately in the Republic of Lithuania. The Court of Appeal declared the plaintiff’s claim as substantiated and held that the award of the International Commercial Arbitration Court under the Ukraine Chamber of Commerce and Industry must be considered as recognisable, and therefore must be executed. The Court of Appeal also stressed that the question of whether the parties are bound by the contract must be decided by the above-mentioned court. The defendant (Joint-Stock enterprise ‘Alytaus achemija’) submitted the cassation claim arguing that Ukraine is not the State party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,60 therefore the award could not be recognised in the Republic of Lithuania. The Supreme Court rejected the defendant’s argument that Ukraine is not the State party to the Convention, as Ukraine signed the Convention on 29 December 1958, ratified on 10 October 1960, and on 5 January 1961 entered into force in respect to Ukraine, therefore the argument is considered as groundless. The defendant also claimed that the award could not be enforced on the basis that he was not given a proper notice of the appointment of the arbitrator and of the arbitration proceedings (Article 40 of the Law of the Commercial Arbitration and Article V (1) (b) of the Convention). The Supreme Court stated that the defendant must assume the burden of proof and give evidence he was not well informed on the appointment of the arbitrator or the examination of the court of arbitration, or that there were other reasons for the party not being able to present its explanations. The Supreme Court held the defendant was given a proper notice about the session of the court of arbitration, as he had received three registered letters. Therefore, it was concluded that there could 60
Valstybơs žinios ’1995 No. 10-208, Law No. I-760 of 17 January 1995.
353
Republic of Lithuania Materials on be no obstacles to recognise the decision of the International Commercial Arbitration Court under the Ukraine Chamber of Commerce and Industry and execute it in the Republic of Lithuania. Part Fourteen: II. G. 2. Peaceful Settlement of Disputes – means of settlement – judicial settlement – courts and tribunals other than the International Court of Justice14/2 During 2003 the European Court of Human Rights (hereinafter referred as the European Court) delivered 4 judgements on the merits in cases initiated by Lithuanian nationals. By 31 December 2003 there were 765 applications registered, 22 applications communicated to the Government of the Republic of Lithuania, and 7 applications were examined on admissibility, with 4 applications struck from the list of cases (Stanislovas Mickeviþius application No.17121/02, Jekaterina Saltykova application No.70351/00, Vincas Bagdonas and Vidas Paceviþius v. Lithuania, application No.57190/00; Kestutis Jurša v. Lithuania, application No.50032/99), and 3 applications were proclaimed admissible.61 (See also 6/8 – 6/13) Part Fourteen: III. Peaceful Settlement of Disputes – compensation arrangements 14/3 The issue of the pecuniary compensation after an accident at the workplace was examined in the Supreme Court’s ruling in Dalơ Gervienơ v. Closed Joint-Stock enterprise ‘Eura’, Belarus Minsk’s Dwelling House Enterprise ‘Minskžiltroj’ of 28 May 2003 (case No.3K-3-640/2003). The plaintiff claimed that the Closed Joint-Stock enterprise ‘Eura’, as the employer, must be liable for the accident and should pay the compensation for pecuniary damage, i.e. for the death of her husband (Mr. A. Gervienơ), who died in a bus accident during a work trip in the territory of Belarus. Mr. A. Gervienơ was the second driver of the bus and was asleep when the accident occurred. The bus was driven by another driver (an employee of ‘Eura’) Mr. A.Dubinskas. The Kaunas City District Court constituted that the technical condition of the bus could not be considered as the cause of the accident, as it was 61 The statistical data was provided by the Government Representative to the European Court of Human Rights Mrs. D. Joþienơ.
354
International Law 2004 declared that the bus was in technically good condition. The Court drew attention to the fact that the reason for the accident was a violation of the road traffic regulations. Therefore, the Kaunas City District Court concluded that the employer did not infringe any of the requirements of the work safety laws and without proving the employer’s guilt the Court could not award compensation to Mrs. Gervienơ. The District Court also noted that in accordance to Article 41 of the Agreement between the Republic of Lithuania and the Republic of Belarus on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, ‘the obligation to compensate the damage is determined by the laws of the Contracting Parties in which territory the action or the other circumstance . . . has occurred . . . the jurisdiction to examine and to adopt the decisions in such cases has the competent court of the Contracting Parties, in which territory the action or the other circumstance, being the ground for the claim, has occurred’.62 The Court ascertained that the claim for the damage caused by the accident in the territory of Belarus is not within the jurisdiction of the courts of the Republic of Lithuania and the case must be dismissed. The plaintiff was suggested to lodge the claim with the respective courts of Belarus. The Kaunas Regional Court upheld the Kaunas City District Court’s decision. The Supreme Court quashed the decisions of the lower courts and remanded the case. The Supreme Court stressed that the lower courts had not properly interpreted the provisions of the above-mentioned Agreement concluded between the Republic of Lithuania and the Republic of Belarus. The Supreme Court noted that the fact that the damage occurred because of the accident in the territory of Belarus itself must not be considered as a sufficient ground to apply the laws of Belarus when both parties of the civil conflict are the Lithuanian citizens, and the case is more related to Lithuania (as it is provided in Article 1 (11) (3) of the Civil Code of the Republic of Lithuania). Therefore it was concluded that the fact that accident has happened in the territory of Belarus could not determine that Belarus laws are applicable in the present case. Furthermore, the Supreme Court argued that the lower courts did not examine whether the actions of the defendant constitute a violation of the requirements of the work safety laws. The Supreme Court also stressed that the lower courts did not have the right to dismiss the case even if the case would have been considered as being under the jurisdiction of the courts of Lithuania; the claim in that case must have been left unexamined. It was furthermore stated that the lower courts did not pay attention to the fact that the plaintiff addressed the claim to two 62
Valstybơs žinios ’1994 No. 43-779.
355
Republic of Lithuania Materials on defendants, i.e. the ‘Eura’ and Belarus enterprise ‘Minskžilstroj’. And only in the case where the claim was addressed to the one defendant ‘Minskžilstroj’ would Article 41 (2) of the Agreement between the Republic of Lithuania and the Republic of Belarus be applicable and the case fall under the jurisdiction of the Belarus courts. The Supreme Court noted that Article 20 (1) of the above-mentioned Agreement providing that the cases are cognizable to the courts of the Contracting States in which territory the residence is established could be applicable. It was concluded that the claim against ‘Eura’ could be examined by the courts of Lithuania. The claim for ‘Minskžilstroj’ could be divided into a separate claim and could be investigated by the courts of Belarus. It needs to be added, that the Supreme Court emphasised that the claim must be examined under the requirements of the ‘reasonable time’ provisions of the Article 6 (1) of the European Convention on Human Rights. 14/4 The issue of the compensation for the pecuniary and non-pecuniary damage was examined in the Supreme Court’s ruling in Michail Bolotov v. Ministry of Justice of the Republic of Lithuania and General Prosecution of 1 October 2003 (case No.3K-3-895/2003). The plaintiff Mr. M. Bolotov brought his claim under Articles 18, 20, 21 30 and 31 of the Constitution, Articles 5 and 6 of the ECHR, Civil Code of the Republic of Lithuania provisions, and Articles 1 and 3 of the Law on Compensation for the Caused Damage by Unlawful Actions of the Inquiry, Investigation, Prosecution and Courts (no longer in force as the new law entered on 7 June 2002 06 0763). He argued that he must be compensated by the Lithuanian State for the material and moral damage caused by his detention in March 1999 as a suspect in a criminal case concerning apartment theft and murder of a priest (R. Mikutaviþius), and an unlawful possession of explosives. He was detained – a security measure, which was twice prolonged. In May 2000 the General Prosecution held that a criminal case with respect to Mr. Bolotov must be dismissed as the there was no evidence proving his participation in committing a crime. The plaintiff claimed he was held in captivity, unfounded, for a period of 187 days, and therefore suffered both the pecuniary and non-pecuniary damage. The Vilnius District Court rejected the plaintiff’s claim. The Court referred to the decision of the Supreme Court in P.Narkeviþius v. Ministry of 63
Valstybơs žinios ’2002 No. 56-228, Law No. IX-895 of 28 May 2002.
356
International Law 2004 Justice of the Republic of Lithuania, case No.3K-3-34/2001, and stressed that the dismissal of the criminal case or the adoption of an acquittal judgement in itself does not presuppose that all the procedural decisions must be considered unlawful, if their adoption was strictly under the procedural norms. The Vilnius District Court has further explained that the plaintiff had no right to compensation, as procedural decisions were not acknowledged as unlawful. The Court added that the plaintiff’s other basis of claim, that the examination of the case lasted for the unreasonably long period of time, must be rejected. The Court of Appeal affirmed the decision of the lower court. The Supreme Court highlighted the lower courts’ interpretation that the question of the unlawfulness of the detention must be properly interpreted in accordance with national and international law acts. The Supreme Court agreed that under the internal law the plaintiff’s detention was legal. But it stressed that the plaintiff’s claim was based not only on internal, but also on international law provisions. Therefore it needed to emphasise that the unlawfulness of a detention must be considered in view of the ECHR. The Supreme Court indicated that Article 5 (5) of the Convention provides for the right to compensation. Therefore, the legality of a detention under the provisions of the internal law does not necessarily mean the legality under international law. The Court considered the case-law of the European Court in Lawless v. Ireland, Ringeisen v. Austria, Campbell and Hartley v. U.K., Brogan v. U.K., Punzelt v. Czech Republic) stating that Article 5 of the Convention must be fully estimated in few aspects. Firstly, the detention must be legal in the period of its applicability; that is there must be at least one ground provided in Article 5 (1) of the Convention. Secondly, the procedure of the detention must be in accordance to Article 5 (4) and (5) requirements. And finally, the period of detention must not last for an unreasonably long period (3). The Supreme Court stressed that a detained person must be able to take advantage of the right to bring charges in a shortest time period, and if the case cannot be delivered before the court, the person must be released (Neumeister v. Austria, Wemhoff v. Germany). The Supreme Court also referred to the European Court’s decision in Jơþius v. Lietuva on detention and its lawfulness. The Supreme Court concluded that the lower courts did not examine whether the period of detention was unreasonably long, which had vital importance in order to consider properly the claim according to the provisions of the Convention. The case was sent to the Court of Appeal for re-examination.
357
Republic of Lithuania Materials on 14/5 A similar issue was examined in the Supreme Court’s ruling of 27 January 2003 in Petras Marcinkus v. Ministry of Justice of the Republic of Lithuania (case No.3K-3-150/2003). The plaintiff was arrested in July 1994 and charged under Articles 105, 178 (2) and 116 (2) of the Criminal Code of the Republic of Lithuania (no longer in force, as the new Criminal Code entered into force on 1 May 2003) and remained under arrest until November 1995. The Vilnius Regional Court in March 1996 held that Mr. Marcinkus was guilty of committing the lesser crimes, but was acquitted of murder (Article 105). Nevertheless, in January 2000, the Supreme Court quashed the judgement of the lower court and sent it for re-examination. In May 2000 the Vilnius Regional Court acquitted the defendant of all charges. The plaintiff submitted the cassation motion claiming he was not paid enough compensation for the unlawful conviction. It needs to be emphasised that under the laws (Civil Code of the Republic of Lithuania and the Law on Compensation for the Caused Damage by Unlawful Actions of the Inquiry, Investigation, Prosecution and Courts) of the Republic of Lithuania the maximum compensation could not exceed the sum of 10,000 Lithuanian litas. Therefore, the plaintiff in the cassation complain referred to Articles 5 and 6 of the Convention and the case-law of the European Court, in particular the Court’s decisions in the cases Jơþius v. Lietuva and Grauslys v. Lietuva. Mr. P.Marcinkus argued that in accordance to the Convention and the case-law of the European Court, the compensation for the unlawful conviction must be limited to 10,000 Lithuanian litas, but rather 40,000 Lithuanian litas. The Supreme Court said that the Convention obliges State parties to enact laws providing for compensation procedure for the persons who were unlawfully detained or convicted. Furthermore, the Court indicated that the Convention itself did not fix the sum of the compensation for the damage and entrusted to the regulation by the State’s national law provisions. The Supreme Court explained that the European Court stating the sum of compensation in the judgements does not apply the national law, but relies on its discretionary right, and therefore the plaintiff’s claim for the sum of 40,000 Lithuanian litas was declared unsubstantiated.
358
International Law 2004 Part Fifteen: II.A Coercive Measures short of the Use of Force – collective measures – United Nations 15/1 Lithuania took part in several international operations. Decisions on the deployment and use of the military of the Republic of Lithuania for the purposes of operations in the territory of other States are adopted, in accordance with Article 6 (2) of the Law of the Republic of Lithuania on International Operations, Military Exercises and Other Military Cooperation Events,64 by the Seimas in the form of a resolution on the recommendation to the President of the Republic. 15/2 The military of Lithuania continues its participation in the international operations of the fight against the international terrorism. In November 2002 the Republic of Lithuania has deployed 39 military officers to serve in the international military operation ‘Enduring Freedom’, led by the United States of America, which was launched as a response to the terrorist attacks against the United States of America on 11 September 2001 under the United Nations Security Council resolutions No.1368, 1373 and 1386, condemning the terrorists acts. Thus Lithuania has been contributing military troops in support of the United States. Under the provisions of the Resolution65, adopted on 16 October 2003 by the Parliament of the Republic of Lithuania, the period for the participation in the said operation was prolonged until 31 December 2004. In the territory of Afghanistan, medical officers from Lithuania are involved in rendering assistance to local residents and the troops of international forces deployed in the country. NATO leads the International Security Assistance Force the composition of which includes the Lithuanian medical officers, established on 20 December in a resolution adopted by the United Nations Security Council authorising the international peacekeeping missions and calling on Member States to contribute to the Force. Under the above-mentioned Resolution No.IX-1788 the period of participation in the territory of Afghanistan was also prolonged until 31 December 2004.
64
Valstybơs žinios ’ 1994 No. 58-1133, Law No. I-1555 of 19 July 1994. Valstybơs žinios ’2003 No. 100-4485, Resolution No. IX-1788 of 16 October 2003. 65
359
Republic of Lithuania Materials on 15/3 Since 1996 and to 2003, the number of Lithuanian troops who have served in the territory of Bosnia and Herzegovina amounts nearly 700 Lithuanian military officers. The international operation in Bosnia and Herzegovina, as the peace enforcement operation was launched following the United Nations Security Council Resolution No. 1088 of 12 December 1996. In the ‘Operation Joint Guard’, led by NATO, the Lithuanian soldiers also took part, although in 2003 there was only one representative of Lithuania (the period of service was prolonged by the Resolution66, adopted on 16 October 2003 by the Parliament of the Republic of Lithuania). In 2003 the decision to cancel involvement of the Lithuanian military aviators’ mission in the territory of Bosnia and Herzegovina was approved, as there was a need to increase the military service on the territory of Iraq. The tasks of the Baltic troops include assistance in maintaining public order, carrying out patrolling in their area of responsibility, rendering assistance to humanitarian organisations, and guarding facilities. 15/4 The Lithuanian troops serve in the ‘Joint Guardian’ international peace mission, led by NATO. This participation continues from 1999 under the authority of the United Nations Security Council Resolution No. 1244 and by 2003 there were about 250 soldiers who have taken part in this mission in Kosovo. At the present moment there are 126 Lithuanian soldiers serving to maintain public order, carrying out patrols in their area of responsibility, guarding at checkpoints, rendering assistance to humanitarian aid, and guarding facilities (the term of service for 35 soldiers was prolonged until 31 December 2004 a Resolution67 adopted in 16 October 2003 by the Parliament of the Republic of Lithuania).
66
Valstybơs žinios ’2003 No. 100-4484, Resolution No. IX-1787 of 16 October 2003. 67 Valstybơs žinios ’2003 No. 100-4484, Resolution No. IX-1787 of 16 October 2003.
360
International Law 2004 Part Fifteen: II. A Coercive Measures short of the Use of Force – collective measures – outside the United Nations 15/5 The military operation ‘CONCORDIA’ in Macedonia is organised and led by the European Union, which took over the operative management from the NATO on 31 March 2003. Lithuania was among the participants in the operation since April 2003. At the present moment, Lithuanian Armed Forces are represented by the staff officer in the European Union-led Operation Concordia in the Former Yugoslav Republic of Macedonia serving as a member of the logistics-planning element. The term of service (for up to two soldiers) is prolonged until 31 December 2004 by a Resolution,68 adopted on 16 October 2003 by the Parliament of the Republic of Lithuania. 15/6 The Republic of Lithuania also takes part in the observer missions led by the European Union. During 2003 Lithuania deployed the police officers in the territory of Bosnia and Herzegovina (Resolution No. 1685 of 24 December 24, approved by the Government of the Republic of Lithuania69) and in the Former Yugoslav Republic of Macedonia (FYROM) (Resolution No. 1533 of 4 December approved by the Government of the Republic of Lithuania70). Part Sixteen: III. Use of force under the UN Charter 16/1 The military operation in the Persian Gulf commenced after Iraq refused to obey the requirements of the resolution adopted by the United Nations. The Republic of Lithuania was among the coalition of the States, led by the US, supporting the use of military forces in Iraq. On 25 March 2003, the Parliament of the Republic of Lithuania adopted the Resolution ‘Regarding the participation of the soldiers of Lithuania in the international mission led by the United States of America in the Persian Gulf region’.71 The resolution 68
Valstybơs žinios ’2003 No. 100-4484, Resolution No. IX-1787 of 16 October 2003. 69 Valstybơs žinios ’2003 No. 123-5615, Resolution No. 1685 of 24 December 2003. 70 Valstybơs žinios ’2003 No. 115-5204, Resolution No. 1533 of 4 December 2003. 71 Valstybơs žinios ’2003 No. 30-1233, Resolution No. IX-1400 of 25 March 2003.
361
Republic of Lithuania Materials on was adopted after the United States of America officially asked the countries to contribute to this operation. Eight specialists and four medical officers took part in the humanitarian operations in the territory of Iraq. The medical officers provided medical assistance to local residents and non-enemy prisoners of war. The Resolution of 29 May 200372 was adopted by the Parliament of the Republic of Lithuania in accordance to the Resolution No. 1483 of the United Nations Security Council providing that up to 130 Lithuanian military servicemen are send to participate in the international operation led by the United States of America in the Persian Gulf region. In 2003, there were 106 Lithuanian citizen soldiers on the territory of Iraq, guarding the communications systems, important infrastructure assets and institutions, keeping public order, and providing assistance to humanitarian aid organisations. The Republic of Lithuania also granted humanitarian aid amounting to 100,000 Lithuanian litas to the reconstruction of Iraq as provided by the Resolution adopted by the Government of the Republic of Lithuania on 23 October 2003.73 Lithuanian enterprises have also expressed their intention and willingness to participate in the reconstruction of Iraq and have submitted their applications to the US agency ‘USAID’. (see 5/12 above) Part Seventeen: III. E. The law of armed conflict and international humanitarian law – aspects of the law of armed conflict - nuclear, bacteriological and chemical weapons 17/1 In the statement made at the general debate of the General Assembly of the United Nations during the 58th session of the United Nations General Assembly, H.E. Mr. Antanas Valionis, Minister of Foreign Affairs, stated that terrorism and proliferation of weapons of mass destruction and their means of delivery continues to be on the list of the greatest security concerns. Lithuania as a future member of the European Union and NATO declares and underlines its efforts to continue to contribute to the goal of building international security based on effective work of multilateral institutions. The participation of Lithuanian military personnel in the international peace operations demonstrates the State’s contribution to the international security and peacekeeping. Lithuania seeks to be an active 72 73
Valstybơs žinios ’2003 No. 54-2379, Resolution No. IX-1590 of 29 May 2003. Valstybơs žinios ’2003 No. 101-4557, Resolution No. 1326 of 23 October 2003.
362
International Law 2004 member of the international community rather than just a passive observer. Therefore, Lithuania is committed to continue to contribute its participation in the peace keeping or peace building operations, arranged by the United Nations, NATO or the European Union. It needs to be emphasised that after becoming a genuine member of NATO Lithuania will enjoy the same security guarantees as the 25 Member States. In turn, Lithuania must accept security threats faced by other allies as a constituent part of security system. Involvement in NATO, OSCE, and UN activities including participation in international military operations is an essential part of membership in these organisations. (see 5/12 above) Appendices: Conventions signed by the Republic of Lithuania A. Council of Europe Conventions (2) 1. Convention on Cybercrime (2003.06.23) 2. Additional Protocol to the Anti-Doping Convention (2003.09.17) B. United Nations Conventions (1) 1. Framework Convention on Tobacco Control (2003.09.22) Conventions ratified by the Republic of Lithuania (31) A. Council of Europe Conventions (6) 1. Convention on the Liability of Hotel-keepers concerning the Property of their Guests (2003.01.23, the law will enter into force on 2004.01.01) 2. European Convention for the Protection of the Audiovisual Heritage (2003.02.25) 3. Protocol to the European Convention for the Protection of the Audiovisual Heritage on the Protection of Television Productions (2003.02.25) 4. Protocol No.13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in all Circumstances (2003.10.16) 5. Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Regarding Supervisory Authorities and Transborder Data Flows (2003.12.18) 6. European Convention for the Protection of Animals kept for Farming Purposes
363
Republic of Lithuania Materials on B. United Nations Conventions (9) 1. Amendment to the Article I of the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons, Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW) (2003.02.25) 2. Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, New York, 15 November 2000 (2003.03.25). 3. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, New York, 15 November 2000 (2003.04.22). 4. United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, Paris, 14 October 1994 (2003.07.03) 5. Cartegena Protocol on Biosafety to the Convention on Biological Diversity, Montreal, 29 January 2000 (2003.09.18, the Protocol will enter into force for Lithuania in 2004.02.05) 6. Protocol to the 1979 Convention on the Long-range Transboundary Air Pollution on Long-Term Financing of the Co-operative Programme for Monitoring and Evaluation of the Long Range Transmission of Air Pollutants in Europe (EMEP), Geneva, 28 September 1984 (2003.09.18 the Protocol will enter into force for Lithuania in 2004.02.05) 7. Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, New York, 28 July 1994 (2003.09.09) 8. Protocol on Water and Health to the 1992 Convention on the Protection and use of Transboundary Watersources and International Lakes (2003.12.02) 9. International Convention for the Suppression of Terrorist Bombings, 1997 (2003.12.09) C. Conventions of the Hague Conference on Private International Law (1) 1. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (2003.07.03) D. International Civil Aviation Organisation Conventions (1) 1. Protocols on the Amendments of the Convention on International Civil Aviation done at Chicago on December 7, 1944 The Protocol Relating to an Amendment to the Convention on International Civil Aviation done at Montreal on 27 May 1947 The Protocol Relating to an Amendment to the Convention on International Civil Aviation, done at Montreal on 14 June 1954;
364
International Law 2004 The Protocol Relating to Certain Amendments to the Convention on International Civil Aviation, done at Montreal on 14 June 1954; The Protocol on the Authentic Trilingual Text of the Convention on International Civil Aviation done at Buenos Aires on 24 September 1968 The Protocol Relating to an Amendment to Article 56 of the Convention on International Civil Aviation, done at Vienna on 7 July 1971; The Protocol Relating to an Amendment to the Convention on International Civil Aviation, done at Montreal on 30 September 1977; The Protocol Relating to an Amendment to the Convention on International Civil Aviation, done at Montreal on 6 October 1980; The Protocol Relating to an Amendment to the Convention on International Civil Aviation, done at Montreal on 10 May 1984; The Protocol Relating to an Amendment to Article 56 of the Convention on International Civil Aviation, done at Montreal on 6 October 1989; The Protocol Relating to an Amendment to Article 50(a) of the Convention on International Civil Aviation, done at Montreal on 26 October 1990; The Protocol Relating to an Amendment to the Convention on International Civil Aviation, done at Montreal on 29 September 1995 The Protocol on the Authentic Trilingual Text of the Convention on International Civil Aviation done at Buenos Aires on 24 September 1968 and to the Protocol on the Authentic Quinquelingual Text of the Convention on International Civil Aviation done at Montreal on 29 September 1995 (2003.07.03) E. International Maritime Organisation Conventions (1) 1. Convention on Limitation of Liability for Maritime Claims (2003.12.16) F. International Atomic Energy Agency Conventions (1) 1. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (2003.12.18) G. International Labour Organisation Conventions (4) 1. Worst Forms of Child Labour Convention (2003.03.25) 2. Maternity Protection Convention (2003.03.25) 3. Employment Policy Convention (2003.11.03) 4. Instrument for the Amendment of the Constitution of the International Labour Organization (2003.12.02) H. Other Conventions (8) 1. Convention on Simplified Extradition Procedures Between the Member States of the European Union, Adopted on the basis of Article K.3 of the Treaty on European
365
Republic of Lithuania Materials on Union (2003.05.15, the law will enter into force on the date of Lithuania’s accession to the European Union) 2. The Annex ‘B.4’ Concerning Goods Imported in Connection with a Manufacturing Operation, Annex ‘B.7’ Concerning Tourist Publicity Material, Annex ‘B.8’ Concerning Goods Imported as Frontier Traffic and Annex ‘E’ Concerning Goods Imported with Partial Relief From Import Duties and Taxes to the Convention on Temporary Admission (Istanbul Convention), Istanbul 26 June 1990 (2003.06.24) 3. Statute of the Committee of Military Medicine (2003.06.17) 4. The Protocol for the Modification of the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, Vilnius 3 June 1999 (2003.07.03) 5. Protocol (SDR Protocol) amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading of 25 August 1924 (the Hague Rules), as amended by the Protocol of 23 February 1968 (Visby Rules), Brussels, 21 December 1997 (2003.07.03) 6. Convention relating to Extradition between the Member States of the European Union, adopted on the basis of Article K.3 of the Treaty on European Union (2003.07.03, the law will enter into force on the date of Lithuania’s accession to the European Union) 7. Statutes of the World Tourism Organization (2003.09.23) 8. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (2003.12.16) Conventions entered into force with regard to the Republic of Lithuania (26) A. Council of Europe Conventions (5) 1. Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (2003.02.01) 2. Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings (2003.02.01) 3. Additional Protocol to the European Outline Convention on Transfrontier Cooperation between Territorial Communities or Authorities, which was opened for signature by the States which have signed the Outline Convention, in Strasbourg, on 9 November 1995 Protocol No 2 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS 169), concerning interterritorial cooperation (2003.02.27) 4. Agreement on Illicit Traffic by Sea, implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (2003.03.01)
366
International Law 2004 5. European agreement relating to persons participating in proceedings of the European Court of Human Rights, 1996 (2003.04.01, ratified in 2003.01.21) B. United Nations Conventions (11) 1. European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR), 1957 (2003.01.01) 2. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, New York, 25 May 2000 (2003.03.20) 3. International Convention for the Suppression of the Financing of Terrorism, adopted on 9 December 1999 (2003.03.22) 4. Customs Convention on the Temporary Importation of Private Road Vehicles, New York, 4 June 1954 (2003.04.03) 5. Customs Convention on the Temporary Importation of Commercial Road Vehicles, Geneva, 18 May 1956 (2003.04.03) 6. International convention on the simplification and harmonisation of customs procedures and annex E.3 concerning Customs warehouses (2003.05.14) 7. Convention on Customs Treatment of Pool Containers used in International Transport. Geneva, 21 January 1994 (2003.07.03) 8. Rome Statute of the International Criminal Court, 1998 (2003.08.01, ratified in 2003.04.01). 9. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction (2003.11.01, ratified in 2003.03.25) 10. III/1. Amendment to the Basel Convention (2003.11.07, ratified in 2003.09.18) 11. United Nations Convention on the Law of the Sea (2003.12.12) C. Conventions of the Hague Conference on Private International Law (6) 1. Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 2003.02.18 with Poland 2003.08.25 with Macao Special Administrative Region of the People’s Republic of China 2. Convention concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors 2003.02.15 with Spain 2003.02.17 with Poland 3. Convention on the Law Applicable to Traffic Accidents 2003.02.15 with Spain 2003.07.18 with Slovakia 4. Convention on the Civil Aspects of International Child Abduction 2003.03.01 with Poland 2003.04.01 with Norway, 2003.05.01 with Belgium, 2003.05.01 with Uruguay 2003.07.01 with Moldova;
367
Republic of Lithuania Materials on 2003.08.01 with Slovakia; 2003.09.01 with Macao Special Administrative Region of the People’s Republic of China 5. Convention relating to civil procedure (2003.07.17) 6. Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations (2003.10.01) D. International Maritime Organisation Conventions (3) 1. International Convention on Oil Pollution Preparedness, Response and CoOperation (2003.03.23) 2. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (2003.04.30) 3. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (2003.04.30) E. Other Conventions (1) 1. Agreement on the International Occasional Carriage of Passengers by Coach and Bus (Interbus Agreement) (2003.01.01) Bilateral Agreements signed by the Republic of Lithuania (22) 1. Protocol to the North Atlantic Treaty on the Accession of the Republic of Lithuania (2003.03.27) 2. Agreement between the Government of the Republic of Lithuania and Nordic Environment Finance Corporation (‘NEFCO’) on the legal Status of NEFCO in Lithuania (2003.04.08) 3. Agreement between the Government of the Republic of Lithuania and the Government of the State of Kuwait on the Status of Lithuanian Armed Forces in the State of Kuwait (concluded by exchange of letters) (2003.04.15, provisionally applied since 2003.04.15) 4. Agreement between the Government of the Republic of Lithuania and the Cabinet of Ministers of Ukraine on Mutual Protection of Classified Information (2003.06.05) 5. Agreement between the Government of the Republic of Lithuania and the Cabinet of Ministers of Ukraine on Co-operation and Mutual Assistance in the Field of Prevention of Emergencies and Elimination of their Consequences (2003.06.05) 6. Agreement between the Government of the Republic of Lithuania and the Government of Mongolia on the Promotion and Reciprocal Protection of Investments (2003.06.27) 7.Cooperation Agreement in the Fields of Education, Science, Culture and Art between the Government of the Republic of Lithuania and the Government of Mongolia (2003.06.27)
368
International Law 2004 8. Agreement between the Government of the Republic of Lithuania and the Council of Ministers of Serbia and Montenegro on Cooperation in the Fields of Education, Science, Culture and Sports (2003.08.27) 9. Convention between the Republic of Lithuania and Georgia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital (2003.09.11) 10. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Armenia on the abolition of visa requirements for the holders of diplomatic passports (2003.09.15) 11. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Armenia on Readmission of Persons with Unauthorised Stay (2003.09.15) 12. Agreement between the Republic of Lithuania and the Republic of Kazakhstan on legal assistance and legal relations in civil, family and criminal cases (2003.09.15) 13. Additional Protocol between the Government of the Republic of Lithuania and the Government of the United States of America to the Treaty for the Encouragement and Reciprocal Protection of Investment of January 14, 1998 (2003.09.22) 14. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Latvia on early notification of nuclear accidents, exchange of information and co-operation in the field of nuclear safety and radiation protection (2003.10.03) 15. Agreement between the Government of the Republic of Lithuania and the Government of the Kingdom of Morocco on the Abolition of Visa Requirements for Diplomatic Passports (2003.10.06) 16. Agreement between the Government of the Republic of Lithuania and the Government of the Kingdom of Sweden on collaboration within the field of Emergency Prevention, Preparedness and Response (2003.10.24) 17. Panama on the Abolition of Visa Requirements (2003.10.24, will enter into force 2004.01.21) 18.Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Costa Rica on the Mutual Abolition of Visa Requirements (2003.10.30) 19. Agreement on Co-operation between the Republic of Lithuania and the European police Office (2003.10.30) 20. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Singapore for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (2003.11.18) 21. Agreement between the Government of the Republic of Lithuania and the Government of the Kingdom of Belgium on police co-operation (2003.11.19) 22. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Belarus on the Cooperation for the Prevention of the Catastrophes, Natural Disasters and Other Large-scale Accidents (2003.12.16)
369
Republic of Lithuania Materials on Bilateral Agreements ratified/approved by the Republic of Lithuania (12) 1. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Moldova on the Abolition of Visa Requirements for the Holders of Diplomatic Passports (approved 2003.04.03) 2. Agreement between the Government of the Republic of Lithuania and the Government of the United States of America on the protection and preservation of certain cultural properties (approved 2003.04.03) 3. Special Accession Programme for Agriculture and Rural Development in the Republic of Lithuania Annual Financing Agreement between The Commission of the European Communities on behalf of the European Community and the Republic of Lithuania (2003.05.13, signed in 2003.02.17) 4. Agreement between the Republic of Lithuania and the Kingdom of the Netherlands on the export and enforcement of social security benefits (2003.06.10) 5. Agreement between the Government of the Republic of Lithuania and the Government of the Federative Republic of Brazil on the Abolition of Visa Requirements (concluded by exchange of Notes) (approved 2003.08.12) 6. Agreement between the Government of the Republic of Lithuania and the Government of the Kingdom of Belgium regarding mutual assistance between their customs authorities (2003.09.16) 7. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of France for the cooperation in the fields of Culture, Education, Science and Technology (approved 2003.09.16; signed 2003.04.04). 8. Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, concerning the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (2003.09.16, signed in 2003.04.16, ratified in 2003.09.16, the Treaty will enter into force for the Republic of Lithuania in 2004.05.01) 9. Convention between the Republic of Lithuania and the Republic of Iceland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital (2003.12.02; signed 2003.07.22) 10. Special Accession Programme for Agriculture and Rural Development in the Republic of Lithuania Annual Financing Agreement 2003 between The Commission
370
International Law 2004 of the European Communities on behalf of the European Community and the Republic of Lithuania (2003.12.09, signed in 2003.09.26) 11. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Moldova on Readmission of Persons with Illegal Entry or Residence on the Territory of the Republic of Lithuania or of the Republic of Moldova (ratified 2003.12.09) 12. Convention between Government of the Republic of Lithuania and the Government of Malta for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income (2003.12.16) Bilateral Agreements entered into force with regards to the Republic of Lithuania (38) 1. Temporary Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Belarus on travels of nationals of both States (2003.01.01) 2. Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation on travels of nationals of both States (2003.01.01, except Article 12 – 2003.07.01) 3. Agreement on the Amendment and Supplement the Temporary Agreement of 23 September 1996 between the Government of the Republic of Lithuania and the Government of Ukraine regarding travels of citizens of both States (concluded by the exchange of the notes 2003.01.01) 4. Memorandums of understanding between the European Community and the Republic of Lithuania on Republic of Lithuania’s participation in the ‘Community mechanism to facilitate reinforced co-operation in civil protection assistance interventions’ (2003.01.01) 5. Agreement between the Republic of Lithuania and the State Kuwait on the Encouragement and reciprocal protection of investments (2003.01.15) 6. Agreement between the Government of the Republic of Lithuania and the Government of the United States of America concerning U.S Social Security benefits for Lithuanian citizens residing in Lithuania (2003.01.17) 7. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Croatia on trade and economic cooperation (2003.01.31; approved 2003.01.21) 8. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Armenia on trade and economic cooperation (2003.01.29) 9. Agreement between the Government of the Republic of Lithuania and the Government of the Islamic Republic of Pakistan on trade and economic cooperation (2003.02.01, approved 2003.01.28) 10. Convention between the Republic of Lithuania and the Portuguese Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (2003.02.26)
371
Republic of Lithuania Materials on 11. Extradition Treaty between the Government of the Republic of Lithuania and the Government of the United States of America (2003.03.31) 12. Agreement between the Government of the Republic of Lithuania and the Government of the United States of America Concerning Cooperation in the Area of the Prevention of Proliferation of Weapons of Mass Destruction, and the Promotion of Defence and Military Relations (2003.04.24; ratified 2003.03.25) 13. Agreement between the Republic of Lithuania and the Republic of Iceland for the Promotion and Reciprocal Protection of Investments (2003.04.18, ratified 2003.03.18) 14. Agreement between the Government of the Republic of Lithuania and the Government of the Socialist Republic of Vietnam for the promotion and protection of investments (2003.04.24, ratified 2003.03.18) 15. Convention between Government of the Republic of Lithuania and the Government of the Kingdom of Belgium for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (2003.05.05) 16. Agreement between the Government of the Republic of Lithuania and the Government of the Hashemite Kingdom of Jordan on the promotion and protection of investments (2003.05.05, ratified 2003.03.18) 17. Agreement on the international occasional carriage of passengers by bus between the Government of the Republic of Lithuania and the Government of the Republic of Austria (2003.05.07) 18. Memorandum of Understanding between the European Community and the Republic of Lithuania on Lithuania’s participation in Community programme Customs 2007 (2003.05.12, signed 2003.05.12) 19. Memorandum of Understanding between the European Community and the Republic of Lithuania on Lithuania’s participation in the Multiannual Community programme to stimulate the development and use of European digital content on the global networks and to promote linguistic diversity in the Information Society (Content) (2003.05.16, signed 2003.05.16) 20. Agreement between the Republic of Lithuania and the Republic of Hungary for the promotion and reciprocal protection of investments (2003.05.20 ratified 2003.03.18) 21. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Moldova on the promotion and reciprocal protection of investments (2003.05.29, ratified 2003.03.18) 22. Agreement between the Government of the Republic of Lithuania and the Government of the Kingdom of Sweden on Co-operation in Maritime and Aeronautical Search and Rescue (2003.05.31; approved 2003.04.24) 23. Agreement between the Government of the Republic of Lithuania and the 25. Government of the Republic of France on the Status of the Building of the Diplomatic Representation of the Republic of Lithuania in Paris (2003.06.01) 24. Agreement on Economic and Technical Cooperation between the Government of the Republic of Lithuania and the Government of the Republic of India (2003.06.16)
372
International Law 2004 25. Treaty on Extradition between the Republic of Lithuania and the People’s Republic of China (2003.06.21) 26. Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation on facilitated transit documents issue procedure (2003.06.21, except Articles 1, 2, 3, 4, 5 – 2003.06.30, signed 2003.06.20) 27. Cooperation Agreement in the Fields of Education, Culture, Art and Sports between the Government of the Republic of Lithuania and the Government of the United Mexican States (2003.07.04, approved 2003.05.27) 28. Agreement between the Government of the Republic of Lithuania and the Government of the Federal Republic of Germany on the cooperation in combating organised crime, terrorism and other major crimes (2003.07.10) 29. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Poland on mutual support in the event of natural calamities and large – scale accidents (2003.08.01) 30. Treaty between the Republic of Lithuania and the Russian Federation concerning the State Border between Lithuania and Russia (2003.08.12) 31. Treaty between the Republic of Lithuania and the Russian Federation concerning delimitation of the exclusive economic zone and the continental shelf in the Baltic sea (2003.08.12) 32. Agreement between the Republic of Lithuania and the Portuguese Republic on the mutual promotion and protection of investments (2003.08.14) 33. Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation on the Readmission of Persons Illegally Residing in the Territory of the Republic of Lithuania and the Territory of Russian Federation (Readmission Agreement) (2003.08.21, signed 2003.05.12; ratified 2003.05.29) 34. Agreement between the Republic of Lithuania and the European Union on the Participation of the Republic of Lithuania in the European Union-led Forces (EUF) in the Former Yugoslav Republic of Macedonia (2003.09.09, signed 2003.09.09) 35. Understanding Concerning Certain U.S. Bilateral Investment Treaties between the United States, the European Commission and acceding and Candidate Countries for accession to the European Union (2003.09.22) 36. Agreement between the Government of the Republic of Lithuania and the Government of the United States of America on the Legal Status of an International American School in Vilnius (2003.09.29) 37. Letter of Agreement on Law Enforcement between the Government of the Republic of Lithuania and the Government of the United States of America (2003.09.30) 38. Agreement between the Government of the Republic of Lithuania and the Government of the Argentine Republic on Suppression of Visas in Ordinary Passports (2003.12.31, signed 2003.10.31)
373
Republic of Lithuania Materials on Trilateral Agreements entered into force with regard to the Republic of Lithuania (2) 1. Decision No 1/2002 of the Joint Committee on the Baltic Common Transit of 15 November 2002 on Implementing Article 34 B of Appendix II to the Agreement of 10 July 1988 on the Baltic Common Transit Procedure (2003.01.01) 2. Agreement on Conformity Assessment and Acceptance of Industrial Products between the Republic of Lithuania and the Republic of Iceland, the Principality of Liechtenstein and the Kingdom of Norway (2003.12.01, signed 2003.01.30, ratified 2003.09.09) Amendments (2) 1. Agreement between the Government of the Republic of Lithuania and the Government of the Republic of Poland on cooperation in combat against organised crime and other major crimes Amendments were made on 2003.10.02 2. Agreement between the Government of the Republic of Lithuania and the Government of the Russian Federation for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital Amendments were made on 2003.01.27 Prolongation (3) 1. Agreement between the Republic of Lithuania and the Kingdom of Sweden on Cooperation in the field of environment (prolonged until 2007.03.30) 2. Agreement between the Government of the Republic of Lithuania and the European Patent Organisation on cooperation in the field of patents (Cooperation Agreement) (prolonged until 2005.02.28) 3. Agreement implementing Article 3(3) of the Cooperation Agreement between the Government of the Republic of Lithuania and the European Patent Organisation of 25 January 1994 (prolonged until 2005.07.04) Provisional Application (1) 1. Agreement between the Government of the Republic of Lithuania and the Government of the State of Kuwait on the Status of Lithuanian Armed Forces in the State of Kuwait (provisionally applied since 2003.04.15 Termination (15) 1. The Agreement between the Government of the Republic of Lithuania and the Government of Canada for Co-operation in the Peaceful Uses of Nuclear Energy 2. Free Trade Agreement between the Republic of Lithuania and Republic of Bulgaria 3. Free Trade Agreement between the Republic of Lithuania and the Czech Republic
374
International Law 2004 4. Free Trade Agreement between the Republic of Lithuania and the Republic of Poland 5. Free Trade Agreement between the Republic of Lithuania and the Slovak Republic 6. Free Trade Agreement between the Republic of Lithuania and the Republic of Slovenia 7. Free trade agreement between the Republic of Lithuania and the Republic of Turkey 8. Free trade agreement between the Government of the Republic of Lithuania and the Government of Ukraine 9. Free Trade Agreement between the Republic of Lithuania and the Republic of Hungary 10. Free Trade Agreement between the Republic of Estonia, the Republic of Latvia and the Republic of Lithuania 11. Free Trade Agreement between the Republic of Estonia and the Republic of Latvia and the Republic of Lithuania on trade in agricultural products 12. Free Trade Agreement between the Republic of Lithuania and Romania 13. Agreement on the abolition of non-tariff barriers to trade between the Republic of Estonia, the Republic of Latvia and the Republic of Lithuania 14. Agreement between the Republic of Lithuania and EFTA States 15. Free trade agreement between the Republic of Lithuania and the Republic of Croatia
375
Book Reviews Editorial Note This spring is crucial for the future of the Baltic States. Since 29 of March they are fully-fledged members of NATO, whereas 1 May is the date of their accession to the European Union. Therefore, not surprisingly, this Volume 4 of the Baltic Yearbook of International Law is devoted to various legal issues concerning the integration of the Baltic States to the European Union. The Book Review section goes in line with this special theme publishing reviews of four books dealing with the implementation of European law in the Baltic States and legal issues of the EU enlargement process. During the last decade of the preparation to the membership, many books were published in the Baltic States in order to fill gaps in knowledge about the EU, its legal acquis and harmonisation of national legislation. Thus the first is Mr. DaimƗrs ŠkutƗns’ review of the book on the application of the EU law in Latvia (Application of European Union Law in Latvia, edited in Latvian language). This is the collection of essays written by different Latvian lawyers on the most topical legal issues related to the application of the EU law in Latvia. It begins with the key issue of the relationship between national law and the EU legal acquis, and continues with essays on the important rights of individuals under the EU law and the main principles associated therewith. The book also goes deeper into specific areas of the EU law and the implementation of its rules in various branches of Latvian law. Most of these topics are of great interest to lawyers in other Baltic States facing the similar legal problems. For instance, Lithuania only in June (i.e., during the second month of its membership in the EU) amended its Constitution in order to ensure direct applicability of the EU secondary legislation and its supremacy over national laws. However, the most important is that Mr. DaimƗrs ŠkutƗns comments not only on the positive sides of the book, but he also reveals some weaknesses. The most important of which are too ambitious objectives. As the author of the review rightly observes, one book comprised of 12 chapters on different areas of law is not sufficiently able to prepare the local legal profession for the EU legal environment, especially if it lacks such general topics of the EU law as the institutional framework and sources of law, etc. This constructive criticism could serve as good guidelines for future improvements in edition of similar books on the EU law, especially that it could be expressed also to some other collections of essays on the EU law published in other Baltic States. The second book review is written by myself. That is the review of the book on the application and implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in Lithuania and other State Parties thereto, written in Lithuanian by Dr. Danutơ Joþienơ on the basis of her doctoral research. This theme is no less important than previous one since under Article 6 of the Treaty on European Union the Union is obliged to respect fundamental rights, as guaranteed by the Convention. Moreover, by virtue of Article 6 of the Treaty, the provisions of the Convention are regarded as general principles of the Community 377
Dainius Žalimas law. The similar provision is reiterated in Article 7 of the Draft Treaty Establishing a Constitution for Europe which also expresses the aim of the Union to accede to the Convention. The Charter of Fundamental Rights of the Union that forms a constituent part of the Draft Treaty has also included many provisions identical to the Convention. Therefore, the research made by Dr. Danutơ Joþienơ and her conclusions, as well as introductory Chapters dealing with the general provisions of the Convention are very useful for the promotion of understanding about the general principles of the EU law and their implementation in Member States. Especially, readers can benefit from the comparative analysis of State practice in the field of the application and implementation of the Convention. The problems faced by Lithuania in this field seem to be similar to those in other Baltic States, thus the book might be worth reading not only for Lithuanian lawyers. The third book review is written by Ms. Galina Žukova, a researcher from the European University Institute in Florence. She reviews the Handbook on the EU enlargement (editors – Andrea Ott and Kirstyn Inglis) providing the commentary on relevant legal issues of the enlargement process. Differently from previous two books reviewed in this volume of the Baltic Yearbook of International Law, the Handbook is published in English, thus it could be available for the most of the Baltic lawyers. Almost 50 authors made contributions to the Handbook. The Handbook can be considered as the most exhaustive guide to the EU enlargement process. It seems to be more than sufficient for obtaining basic knowledge on the EU itself, criteria for membership in the Union, the Union’s relations with other states and international organisations, the constitutional issues related to the membership in the Union, the association agreements, the main freedoms on which the Union is based, the harmonisation and interpretation of national law in the light of the EU rules, etc. As Ms. Žukova observes, it is impossible to mention all topics and contributors to the Handbook; the book is regarded as a point of reference on the full range of problems related to the EU enlargement, thus the Handbook could be useful for everyone interested in the theme and the EU law in general. The author of the review is persuasive in demonstrating the worth of the book, since she presents the most of the parts and sections of the book as well as the main ideas expressed by the contributors. The fourth book review is written by the famous Latvian author PƝteris Zilgalvis. This review goes further presenting the book by Peter Norman which deals with fundamental issues of the future European Union. The book is very topical now since it documents the work of the European Convention as well as could serve as commentary to the most important provisions of the Draft Treaty Establishing a Constitution for Europe. Therefore, the author of the review rightly observes that ‘the timely publication of this book in late 2003 makes it a useful tool for those dealing with the EU law in the light of changes that the draft constitutional treaty is expected to bring’. The content of the book exhaustively described in the review leaves no doubt about its unique value for lawyers interested in the recent and future developments in the EU institutional and legal framework. It is clear from the review that no important development has been left aside; for instance, the book
378
Book Reviews – Editorial note is focused on challenges that inspired the idea of the European Constitution, the emergence and development of the concept of the Constitution, the reform of the EU institutions, the significance of the Charter of Fundamental Rights, the legal personality of the Union, etc. Taking this opportunity, I would like also to share the main ideas concerning the policy of the Baltic Yearbook of International Law towards the book reviews. One of the objectives of the Yearbook is to present the books on international and European Union law published in the Baltic States as well as the books published worldwide and related to the Baltic States and other Baltic Sea countries or deserving a special interest of the Baltic lawyers. We are going to continue the practice of publishing reviews in a given volume of the Yearbook in accordance to the general theme of that volume. For instance, the first and the third volumes were devoted to the legal status of the Baltic States and the related issues of state responsibility and contained corresponding book reviews, as well as this volume, which includes reviews of books related to emerging EU issues. However, that does not mean that other book reviews are not welcomed. We believe that there are many books already published or soon to be published that are waiting for review in the Yearbook. This is especially true about books on various EU legal issues as well as the legal status of the Baltic States and other issues topical to all Baltic Sea countries. Therefore, we encourage interested authors to submit the reviews of these books. Such reviews will have the priority notwithstanding the theme of a given volume. Obviously, the priority always will be given to the reviews of the books published in English, French or German, since they can be available to read for broader public in all three Baltic States. The books edited in these languages can also attract more readers from elsewhere, therefore the reviews of such books written by the Baltic authors can better spread the knowledge about the achievements of the Baltic legal science. However, the reviews of the books published in other than the above mentioned languages will be also accepted, if the book is a matter of interest for the lawyers from at least one of the Baltic States. We also consider useful the reviews of the books published in one of the native languages of the Baltic States because they can provide the general information on the developments of legal science and recently published books on international or the EU law in a given Baltic State. Such information can encourage a healthy competition between the Baltic lawyers in the deeper research of different legal subjects or even to unite their efforts. These might also be valuable for foreign publishers seeking potential authors for further collaboration. We expect a review to present a sufficiently exhaustive picture of the content of the book as this is extremely helpful for the potential reader for deciding whether the book is worthwhile for reading and whether it will correspond to his needs or expectations. Although we are aware that sometimes it is difficult, we also would like to see a review sufficiently present both sides of the book, i.e. not only dealing with the positive features and strengths, but also revealing weaknesses of the book. 379
Dainius Žalimas It is obvious that the review is better when it contains a constructive criticism that could encourage a scientific debate on the subject or that might be helpful for the author of the book in removing shortcomings in his future research. The value of the review will also be greater if the author compares the reviewed book with other books on the same or similar topic worldwide, especially those written by the Baltic authors, as well as to describe the value added by the book to the previous works on the theme. Finally, I would like to encourage once more all potential authors to read and to write the reviews of books topical to the Baltic lawyers. The Baltic Yearbook of International Law will be always open to your book review submissions as well as to your remarks and suggestions concerning the published book reviews.
Dainius Žalimas Book Review Editor
380
Application of European Union law in Latvia. Collection of essays edited by Ivo Alehno. [Riga: The Latvian Herald. 2003. xii, 355, (Bibliography) 25 and (Index) 7 pp. Hardback. LVL 6.50. ISBN 9984-731-28-6 (in Latvian). After the Latvian referendum yielded a persuasive majority in favour of accession to the European Union (EU), local publishers have tried to boost co-operation with local representatives of the legal profession in an attempt to remedy the insufficient volume of local academic literature targeting EU law. Against the avalanche of commentaries, articles and other forms of academic inquiry normally triggered even by less important developments in EU law, occasional articles and random books that are published locally can hardly meet the growing appetite of the legal profession. It is this short fall that the authors of the book who are either practising lawyers or academics in Latvia holding at least a postgraduate degree in law have attempted to remedy. In this respect the book is to be welcomed by the legal profession and it could be useful as an introduction to the covered areas of EU law. However, the book is unlikely to win the prize for the first Latvian book to have prepared local lawyers for the accession because in general the covered subject matter appears to be randomly selected, the text tends to be rather descriptive than analytical, the authors have been reluctant to deal with contemporary issues in EU law, and one would expect a more rigorous approach to case-law and editing. The book is perhaps too ambitious in scope. According to ‘Introduction’ the objective of the authors was to prepare the local legal profession for the legal environment that the EU is about to bring after the enlargement and explain the influence that acquis has had on some areas of Latvian law. The book has tried to meet the set objective through 12 chapters devoted to such rather specific topics as ‘Remedies in EU law’, ‘The principle of transparency in Latvia and EU’ or ‘Competition law’ with some of the authors stressing the introductory nature of their work. After a general review of the book, the rest of it due to constraints of space and diversity of the covered material will focus on the first three chapters that according to the authors have received most attention and the chapter on competition law contributed by the editor. Suffice it now to say, however, that the book is unlikely to foster a general understanding of the legal framework operating in the EU. Neither it explains the institutional framework, nor it properly examines various legal instruments in EU law. Instead, the knowledge of these and similar introductory yet core issues has apparently been assumed, which is rather surprising given the introductory nature of the book and the objectives it seeks to achieve. In addition, most of the included chapters are likely to be useful to pick up a preliminary understanding of the covered topics as they are dealt with in rather a descriptive manner and rarely offer analysis of contemporary issues in EU law focusing more on Latvian law instead. As a result, the book is capable of developing a fragmented and introductory understanding of the legal framework operating in the EU although in general the covered material is handled accurately and effort has been made to trace recent case-law. Therefore, the objectives pursued by the authors are only partly attained.
381
DaimƗrs ŠkutƗns One could also expect the book to be easier in navigation and more advanced as a source of reference: drawbacks caused by insufficient editing. To start with, it is perhaps misfortunate that endnotes have been used instead of footnotes since an opportunity to check the references on the same page as its text might help to absorb the material. The material could have also been more cross-referenced. Further, the book would have been more enjoyable if it kept a uniform approach to terminology. Next, it would have also been helpful if all the authors referred to treaty Articles revealing their numbering before and after the renumbering effected by the Treaty of Amsterdam. It is also surprising that the authors have not imposed a time bar on the covered body of law. Therefore, it is not clear at the outset whether the Treaty of Nice, for instance, is covered at all. In addition, the mix of the covered material could be more balanced. For example, the chapter on transparency in EU law is twice as voluminous as the chapter on remedies in EU law, which is a far more fundamental subject to deal with. Finally, the text occasionally suffers from lack of references to sources that have influenced the offered findings calling on the reader to resort to other sources of reference. Chapter I ‘Implementation of EU law in Latvia” has been written by Ms Solvita Harbaceviþa. The author is a reader in law at Riga Graduate School of Law and a Ph.D. student at Stockholm University. Referring to the Schuman Declaration, the author has highlighted economic goals behind the European integration without discussing the history of the integration, which would have added to the value of the book. Instead, the author has focused on the relationship between Latvia and the EU from first trade agreements up to Agenda 2000 and the following progress reports. The value of the chapter lies in the concise discussion of the relationship between Latvian law and EU law. However, one would expect the author, for instance, not only to refer to the constitutional debate over supremacy of EU law over national constitutional law influenced by Internationale Handelgesellschaft but also offer some analysis on the issue. Chapter II ‘Possibilities of individuals to use EU law’ was written by Mr Arnis Buka who is a reader in law at the Legal College in Riga (JuridiskƗ koledža) and a Ph.D. student at the University of Latvia. The Chapter has been divided into three parts. The first part invites lawyers to get acquainted with EU law and in particular with the Association Agreement to benefit from the provisions embodied therein already before accession and form a better understanding of that part of Latvian law that has been heavily influenced by EU law in the process of negotiations for accession. This call is also fully endorsed by the author of this review. The second part is devoted to remedies in EU law that would be open for individuals to plead in Latvian courts after accession. This part is not unproblematic. For example, the author starts by explaining the concept of direct effect and immediately adopts a broader definition of the concept laid down in Van Gend en Loos without addressing the debate over the scope of the concept. Other effects that various sources of EU law can have are generally well handled but the text is flawed by lack of proper references to sources. Surprisingly, the procedure of preliminary rulings has received no considerable attention at all. The final part of the chapter focuses on
382
Book reviews challenging various legal acts passed by EU institutions at the ECJ and the Court of First Instance. All in all given the import of the addressed subject the chapter could have been more developed, which would have fostered the book’s value. Mr Buka has also contributed Chapter XI ‘EU law on equality of sex and its application in Latvia’. Chapter III ‘The principle of transparency and its implementation in Latvia and EU’ is written by Ms KristƯne Jarinovska-Buka who is a reader in law at the Law College and Director of the EU law division at the Latvian Ministry of Justice. The Chapter traces the origins of the principle of transparency in Scandinavia and follows its development in the United Kingdom, EU and Latvia. The author has also contributed Chapters VIII and XII on state aid and environmental law. Chapters IV and V have been devoted to the principle of free movement of goods and have been written by Mr Aldis ýevers and Ms Laine Škoba respectively. Both are readers in law at the University of Latvia. Ms Alla PozdƼakova who is a reader in law at Riga Graduate School of Law and a Ph.D. student at Oslo University has contributed Chapter VI on maritime transportation. Ms Zita Ozola working with a local law firm, Loze & Partners, is the author of Chapter IX dealing with the EU framework in the area of telecommunications. Ms Ineta TƗre, Director of the Employment Department at the Latvian Ministry of Welfare, has written Chapter X dealing with the regulation of employment law both in Latvia and EU. Chapter VII ‘Application of EU Competition law (Articles 81 and 82) in Latvia’ has been contributed by the editor of the book, Mr Ivo Alehno who is a reader in law at both the University of Latvia and Riga Graduate School of Law. He is also a Ph.D. student at Stockholm University and a practising lawyer with a local law firm, Liepa, Skopina and Borenius. From a short historical excurse into the development of competition law up to recent developments and case law the chapter offers a wellwritten assessment of the subject matter sufficient to develop a good preliminary understanding of the core issues. Perhaps one regret is that the author has been reluctant to analyse the consequences of the ECJ’s relatively recent and arguably far reaching judgement in the Crehan v. Courage case. In particular, in the light of the Factortame group judgements the author’s comment on the issue of whether the ECJ has gone as far as to require the Member States to create a new remedy in national law allowing to claim compensation for violations of EU competition law where such a remedy had not been made available in national law would be welcome. Despite the criticisms noted above the book is a welcome effort to alleviate a relative insufficiency of local academic literature on EU law. It is hoped that the book will help the legal profession to develop a better understanding of EU law and encourage the academic enquiry into various issues raised by the authors.
DaimƗrs ŠkutƗns
383
Danutơ Joþienơ. The Application and Implementation of the European Convention on Human Rights in Domestic Law of Foreign States and of the Republic of Lithuania (in Lithuanian: Europos žmogaus teisiǐ konvencijos taikymas ir Ƴgyvendinimas užsienio valstybiǐ ir Lietuvos Respublikos teisơje). – 2nd edition (Vilnius, Eugrimas, 2001, pp. 243). This is an important book on the problems of application and implementation of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR or Convention) in domestic law of the States Parties to the Convention. Although the book is written in Lithuanian, it also includes a summary (Resume) in English. The author of the book is Dr. Danutơ Joþienơ, Associate Professor of the Faculty of Law at Vilnius University. The book can be described as the first scientific attempt to demonstrate for Lithuanian society the most important legal aspects of application of the ECHR in national legal system. The content of the book is divided into four thematic sections: the structure of the Convention and the classification of the rights and fundamental freedoms; the legal backgrounds of the application of the Convention in domestic law of foreign states according to the text of the Convention, Jurisprudence of the European Court of Human Rights and statistics of cases; the application and implementation of the Convention in the States Parties to the Convention and legal analysis of the relevant State practice; the application and implementation of the Convention in the legal system of Lithuania. In this part the author analyses the cases lost by the Republic of Lithuania in the European Court of Human Rights. The author states that nowadays the ECHR is regarded as the most effective international mechanism for the protection of human rights. According to Article 19 of the Convention (after the Protocol No. 11 has come into force) the permanent single European Court of Human Rights was established the purpose of which is to ensure the observance of the obligations undertaken by the High Contracting Parties under the Convention. According to the author, the Convention has proved to be a highly successful treaty that has gradually acquired the status of a ‘constitutional instrument of European public order in the field of human rights’. As far back as 1960, in the famous case Austria v. Italy, the European Commission of Human Rights held that it was the purpose of the High Contracting Parties ‘to establish a common public order of the free democracies of Europe’ and that the obligations undertaken by the Parties ‘are essentially of an objective character’. Now this purpose has been achieved. Forty-four countries are Member States of the Council of Europe, and all of them ratified the ECHR (including its Protocol No. 11), thereby recognising the right of individual petition and compulsory jurisdiction of the European Court of Human Rights. When becoming a Member State of the Council of Europe on 14 May 1993, the Republic of Lithuania signed the Convention on the same day. The Convention and its Protocols No. 4, 7, 11 were ratified 2 years later – on 27 April 1995. Accession to the Convention was effective from 20 June 1995. Before the ratification of the Convention the President of the Republic of Lithuania appealed to the Constitutional Court to make the conclusion on the conformity of certain provisions of the ECHR 385
Dainius Žalimas to the Constitution of Lithuania. The Constitutional Court found out that there were no contradictions between the provisions of the Constitution and the Convention. This Conclusion created the legal ground for the ratification of the Convention by the Republic of Lithuania. Protocol No. 1 of the Convention was ratified by Lithuania on 7 December 1995 and the accession to it became effective from 24 May 1996. The author states that the basic aim of the book is to analyse by means of a comparative survey the legal status and rank of the Convention in all States Parties to the Convention, including new democracies from Central and Eastern Europe, as well as to find a well-founded answer to the question which legal rank of the Convention in domestic law could guarantee the most effective application of its provisions. Another aim of the book is to analyse the theoretical and practical problems of the application of the Convention in the Lithuanian legal system and to provide suggestions for the more effective application of the Convention in the domestic law of Lithuania. Dealing with the basic aims, the author makes analysis on such main issues: 1) whether or not the legal obligation exists for the States Parties to incorporate the provisions of the Convention into domestic law; does the Convention itself, directly or indirectly, oblige the Contracting State Parties to implement the rights and freedoms guaranteed by the Convention in their legal systems; 2) the possibilities of and legal grounds for the application of the Convention according to the text of the Convention (legal analysis of Articles 1 and 13 of the Convention), the substance of the decisions of the European Commission of Human Rights and the European Court of Human Rights concerning the above mentioned subject and the statistics; 3) the domestic status of the ECHR in the countries adhering to it; 4) the legal rank of the ECHR in the Lithuanian legal system; proposals for more effective application of the Convention in Lithuania; the impact of the Convention requirements on the Lithuanian legislation and jurisprudence during the past 5 years (starting from 1995). In the book the author investigates the issue whether the Convention machinery makes distinctions between the States that have incorporated the Convention into their domestic law and those States that have not incorporated it. This issue is discussed through the perspective of Articles 1 and 13 of the Convention, the jurisprudence of the European Commission of Human Rights and of the European Court of Human Rights as well as through the legal rank of the Convention in the domestic law of the States Parties. The author deals with the problem of the relationship between national and international law and the possibilities of application of the international treaties in the domestic law. The issue of the application of the Convention in the legal system of Lithuania forms a major part of this research. The author analyses not only Lithuanian Constitutional provisions concerning the application of the Convention and other international treaties in Lithuania, but also provides proposals and ideas for the improvement of such application. Using the method of the comparative analysis, the author provides the basis and principles for the application of the Convention to domestic law of the States Parties, especially of the Republic of Lithuania.
386
Book Reviews The author states that the subject of the European Convention on Human Rights is quite new in Lithuania because the issues concerning the Convention have not yet been deeply discussed and analysed in the legal doctrine of Lithuania. The author of the book used the legal opinions and materials of the Prof. Pranas Knjris, the Judge of the European Court of Human Rights, articles of Prof. Habil. Dr. Vilenas Vadapalas, etc. However, there is not enough available literature in Lithuania about the Convention, especially in Lithuanian. Therefore, the author hopes that her book could be very useful as it will help to disseminate the ideas of the Convention among the Lithuanian lawyers, including judges and advocates, as well as in academic society and broader public. The practical importance of the book for Lithuania, as a State Party to the Convention, is proved inter alia by the fact that in case of a breach of legal obligations under the Convention, the State will pay compensation to the injured party. Moreover, States Parties to the ECHR are obliged to secure that their domestic law is compatible with the Convention and, if necessary, to make appropriate amendments to domestic law. The main question here is whether the States can freely decide which means and methods should be used in order to implement this obligation. In the opinion of the author, it is necessary to pay the foremost attention to the legal analysis of Articles 1 and 13 of the Convention. Article 1 provides that ‘the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. The wording of Article 1 of the Convention ‘shall secure’ as opposed to the wording of the draft of Article 1 ‘undertake to secure’, shows that the rights are created by the ratification of the Convention and must be respected by the State immediately without any additional act of implementation. All rights of the Convention must be directly secured to everyone within the jurisdiction of the State (not only to the citizens). Therefore, according to the author, there is no dispute whether domestic law must give full effect to the rights of the Convention. Obviously, the protection of individuals is more effective in the States where individuals can invoke the provisions of the Convention before the national courts. Article 13 of the Convention provides for ‘an effective remedy before a national authority’. At first sight this provision can be interpreted as requiring the State to make the Convention internally applicable in the domestic law of the States Parties. Otherwise, a very important issue can arise – how could the State guarantee ‘an effective remedy before a national authority’ without making it possible to claim the violation of the rights under the Convention before these authorities. Thus, it seems that the author of the book agrees with the opinion of Prof. Thomas Buergenthal that the Convention (Art. 13) must be interpreted as containing an obligation to make the Convention internally applicable. However, the European Commission of Human Rights and the European Court of Human Rights had not thought to go further. In the Swedish Engine Drivers‘ Union Case (1976) the Court declared, that the State has a possibility to choose freely the necessary methods for the ensuring the rights and freedoms of the Convention. The Court stated that ‘ . . . neither Article 13 nor the Convention in general lays down for the
387
Dainius Žalimas Contracting States any given manner for ensuring within their internal law the effective implementation of any of the provisions of the Convention’. The author also analyses the case of Ireland v. the United Kingdom in 1978 (18. 1. 1978, Series A No. 25, para. 239), where the Court stated that the incorporation of the Convention is recommended for the States Parties, but it is not obligatory. The same principle was confirmed by the Court in the Silver judgement of 25 March 1983, where the Court stated that ‘ . . . the application of Article 13 in a given case will depend upon the manner in which the Contracting State concerned has chosen to discharge its obligation under Article 1 directly to secure to anyone within its jurisdiction the rights and freedoms set out in section 1’. Two main ideas can be deduced from this decision: 1) states can freely choose the methods and different manner for ensuring the rights and freedoms of the Convention, but 2) states have a legal obligation under Article 1 to secure to anyone within their jurisdiction the rights and freedoms enshrined in the Convention. In the book the author defends this legal position and makes the conclusion, that neither the text of the Convention, nor the case-law of the European Court of Human Rights can be interpreted as having compulsory provisions for the incorporation of the Convention into domestic law. However, there is a legal obligation for the States Parties to ensure the compatibility of their internal law with the requirements of the Convention (including the caselaw), as well as to ensure the effective application of the Convention to all individuals within their jurisdiction. According to the legal rank of the ECHR in the domestic law of the States Parties, the author differs four major types of legal solutions: 1) the Convention with the rank of constitutional law (Austria, Switzerland); 2) the Convention as superior to statutory law (the Convention is superior to the statutory law but of lower force than the Constitution (France, the Netherlands, Belgium, Luxembourg, Romania). According to Article 11, paragraph 2 of the new Law on International Treaties of the Republic of Lithuania (1999), in case of a contradiction between ratified international treaties and Lithuanian national laws the provisions of the ratified international treaties will have a priority. It is a very positive development in the new Law that means that the ECHR, as the ratified international treaty, will have a priority over Lithuanian laws; 3) the Convention with the rank of statutory law (Germany, Italy, Spain, Turkey, Greece, Portugal, Finland, Denmark, etc.). The Convention has the force of law on the territory of the mentioned States, and individuals can invoke the provisions of the Convention directly before the national courts; 4) the Convention lacking internal legal validity. The Convention has no internal effect, unless it is not transformed into domestic law. Nowadays there is only one such country – Ireland, where the Convention is lacking legal validity in the domestic law. The United Kingdom has passed the Law on the European Convention on Human Rights (1998) and decided to transform the Convention into the domestic law. Norway has demonstrated the same position incorporating the Convention into its domestic law by the Law of the Parliament (1999). It is a very positive tendency that such traditional dualistic countries as Denmark, Sweden, Iceland, Finland have incorporated the Convention into their domestic law (the
388
Book Reviews Convention has the force of law in the mentioned States) and made its provisions directly applicable before the national courts and other authorities. The author goes on analysing issues related to the implementation and application of the ECHR in Lithuania. The reader’s attention is paid to the conclusion of the Constitutional Court that the Convention is not directly applicable in the Lithuanian criminal and criminal procedure law. In its Conclusion of 24 January 1995 on the conformity of the ECHR to the national Constitution, the Constitutional Court differentiated the application of the Convention in the Lithuanian criminal law, on the one hand, and in the civil law, on the other. The Court recognised the direct application of the Convention in the Lithuanian civil and civil procedure law, whereas in criminal and criminal procedure law, where the norms of the Convention are the most important, the direct application of the Convention was denied. The author does not agree with the position of the Constitutional Court. She is of the opinion that the Convention should be directly applicable in the Lithuanian criminal and criminal procedure law as well. This statement is based on the cases lost by Lithuania in the European Court of Human Rights, which clearly show that the Convention should be in fact directly applicable in domestic courts of Lithuania. Until April, 2002 Lithuania has lost 10 cases in Strasbourg. The first application against Lithuania which was declared admissible was in the case Juozas Jơþius v. Lithuania. It raised some important questions concerning legality of the preventive detention in Lithuania. In September of 1999, 20 applications against the Republic of Lithuania were brought before the European Court of Human Rights. Most of them concern the legality of detention (Article 5 of the Convention), the right to access to the court, procedural guarantees (Article 6 of the Convention), etc. At the end of the book the author presents the conclusions her research: 1) There is no legal obligation for the States to incorporate the ECHR into domestic law or to make its provisions directly applicable in the national courts. However, the ideas of the Convention are proved to find a particularly faithful reflection in those instances where the Convention is incorporated into domestic law; 2) The States Parties have a right to choose freely the methods and different manners for securing the rights enshrined in the Convention. At the same time, they have a strong legal obligation to secure the rights and freedoms enshrined in the Convention for all individuals within their jurisdiction; 3) According to the legal rank of the ECHR in domestic law of the States Parties to the Convention, four major groups of states can be differed: the Convention with the rank of constitutional law; the Convention has a superiority over statutory law, but a lower force than the Constitution; the Convention has a rank of statutory law; the Convention lacks internal legal validity; 4) No significant difference can be seen in the number of applications submitted to the Convention bodies from states those have incorporated the Convention into domestic law and those who have not. However, those States where the Convention forms a part of domestic law are capable to fulfil their obligations under the Convention more directly and react more quickly to the violations of the human rights under the Convention, thereby preventing a lot of cases from coming to
389
Dainius Žalimas Strasbourg; 5) According to Article 138, paragraph 3 of the Constitution of the Republic of Lithuania, the ECHR is a constituent part of the national legal system. According to Article 11, paragraph 2 of the new Law on International Treaties of the Republic of Lithuania (1999), the Convention, as the ratified international treaty, will have a priority over national laws. Therefore, it means that the Convention has acquired a rank of superiority over statutory law, and thus it can be applied directly in all branches of Lithuanian law; 6) The Lithuanian legal system has been progressively developed during the last four years in respect to the Convention. Several laws have been passed during this period to approximate Lithuanian laws to the requirements of the Convention. Meanwhile, the impact of the Convention on the Lithuanian jurisprudence is still not so significant as on the legislation, and the Convention does not play an important role in national courts. However, the author believes that the Convention will become a very important legal source for national jurisprudence as well. This is confirmed by the progressive trends concerning the effective application of the Convention in the practice of the most important national courts. For example, the Constitutional Court often used to apply the Convention in its jurisprudence as well as the Supreme Court did it in its rulings. There is no doubt that the work of Dr. Danutơ Joþienơ should be commended. She has become well known in Lithuanian legal science for her long-term and deep research in the field of human rights, the recent results of which are published in the second edition of the book. It is no surprise that the academic work of Dr. Danutơ Joþienơ has been recently appraised: in 2003 she was appointed Agent of the Government of the Republic of Lithuania to the European Court of Human Rights, and recently she was elected as the Judge of the Court from Lithuania. I believe that this position will help her in promoting the general respect to human rights in Lithuania as well as in developing scientific research and finding the best solutions for the effective application and implementation of the Convention.
Dainius Žalimas
390
Andrea Ott and Kirstyn Inglis (eds.). Handbook on European Enlargement: A Commentary on the Enlargement Process. – The Hague: T.M.C. Asser Press, 2002, pp. xxxiii + 1116. The 2002 Copenhagen European Council marked an historical decision to conclude accession negotiations with eight Central and Eastern European countries together with Cyprus and Malta. In spite of all of the difficulties both sides to the accession negotiations had to overcome, this marked a ‘happy ending’ for the States which, for the past decade, have been undergoing a transitional process. Notwithstanding the utmost importance of the enlargement, to date there was no concise series of materials which would address at length the many challenges and problems raised by the preparation for it. The Handbook on European Enlargement fills this gap. This is a very good summary of the articles on the adaptation for future enlargement, on the one hand, by the EU and its Member States, and, on the other, by the future new members, including efforts by Romania and Bulgaria, which are expected to be ready to join the EU by the year 2007, and Turkey, which, according to the Copenhagen Council, does not yet meet the political criteria. There are nearly fifty contributors to the book, practitioners and academics from both the present and future Member States, ensuring a good balance of viewpoints. The aim of the Handbook is to pay ‘coherent legal attention’ to the relevant issues and ‘to give a comprehensive and structured picture’ of the enlargement process (p. xxxii). The Handbook begins by explaining the general issues surrounding enlargement. Part I introduces the legal, political and historical foundations of the EU, and proceeds with an overview of the participation of the EU together with its Member States, and of the EU candidate States in international organisations, membership of which has very often had direct implications on the accession negotiations. For example, the Parties to the Europe Agreements undertook to conduct trade between them in accordance with the GATT and WTO principles. Ter Heegde in her contribution examines how the accession States reconcile their obligations under the EU Common Commercial Policy with obligations resulting from the WTO membership. The most difficult task the candidate States have to resolve in this respect is to re-negotiate or sometimes even to entirely withdraw from those regional agreements in force between them and third States, which contain obligations running contrary to the Common Commercial Policy rules. àabĊdzka outlines participation of the candidate States in NATO, OECD, CEFTA, OSCE, and in other initiatives, such as the Visegrád Group, the CEI and the Council of the Baltic Sea States. The next section of Part I moves on to the criteria the candidate States have to meet in order to qualify as eligible for joining the EU. Hoffmeister investigates both the criteria which stem from the EC Treaty and those laid down by the 1993 Copenhagen European Council (or, using the terminology of the author, ‘substantive’ criteria). According to him, the criteria introduced in 1993 were not new in substance, rather, they formalised the contents of the criteria established by primary EC law.
391
Gaƺina Žukova The book then addresses the history of earlier enlargements and relations of the EU with other European States, namely the EEA countries and Switzerland, the Balkans and NIS. The contributions of Maurer and Ziegler on accession negotiations are very well elaborated and draw much from the authors’ own professional experiences. I found the description of the EU-Switzerland relations (Evtimov) overly technical and too long, in particular in comparison with what was said about the EEA Agreement, where information about the EFTA Court’s jurisprudence is obviously missing. Petrov thoroughly explored the Partnership and Co-operation Agreements with the NIS members, basically arguing that even if those Agreements are a reliable tool for sustaining long-term relations between the Parties, their substantive clauses suffer from numerous shortcomings and it is unlikely that the Court will accord direct effect upon them. Part II of the Handbook looks at the position of international agreements in the European Community, its Member States and in the candidate States’ legal orders, followed by case studies of the thirteen candidate States. This Part will be particularly interesting to those working on constitutional aspects of enlargement. It provides a unique summary of how international agreements, and, primarily, the (Europe) Association Agreements, are transposed into the candidate States’ national legal orders, with a transcript of relevant legislation and, more importantly, supporting case-law. A review of the jurisprudence is particularly significant, given that courts’ decisions are very often available only in original languages and thus are known to a very small circle of interested parties. The contributions must be praised for the authors’ successful research of the case-law. The authors explore the relationship between the CEECs Constitutions and international treaties (i.e., monistic v. dualistic systems) and how these Constitutions are (to be) amended in view of joining the EU. Ruling on the place of international agreements in their national legal orders, the national (Constitutional) courts had to deal with two major sets of problems. Firstly, sovereignty, which is an extremely sensitive issue for all the candidate countries (a ‘classical’ example of this is Decision 30/1998 of the Hungarian Constitutional Court, Várhelyi, p. 257). Secondly, the novelty of concepts such as direct effect, direct applicability, supremacy, etc. The summary conveniently introduces the reader to how those problems are tackled in each candidate State. Part III follows the same format as it was brought forward by the Association Agreements. It begins with analysis of general principles incorporated into the Preambles of those Agreements, such as protection of human rights and political dialogue. Each of the following Chapters (2-28) is dedicated to a separate sector, starting with free movement of goods, and considering such rarely addressed fields as, for example, statistics, energy or tourism. Concluding contributions deal with Public administration, Regional development and co-ordination of structural instruments, and Institutions. This last Chapter (Chapter 28, Evans) analyses both the institutions established by the Parties within (Associations Committees, Parliamentary Committees, etc.) and beyond (European Conferences, EU institutions, etc.) the Association Agreements’ framework. As a general rule, each Chapter of Part III begins with an introductory description of a particular sector in
392
Book reviews the EU, and then proceeds with how a given sector is regulated by all of the (Europe) Association Agreements and other related instruments, and how provisions of these legal tools must be interpreted in light of the ECJ case law. A number of the Chapters are followed by case studies on a particular State (for example, Movement of persons/Turkey/Rogers, Free movement of capital/Slovenia/Vehar/Ilešiþ, Taxation/Poland/Reith/Wizner, etc.). Koutrakos (Free movement of goods, Chapter 2) argues (p. 388) that the interpretation of trade provisions of the EC Treaty must be extended by way of analogy to the similar Europe Agreements’ provisions. In his opinion, refusal to do so is nonsensical given the central role that Agreements play in the process of approximation. While agreeing with the author in principle, I have some reservations in accepting that the Court would admit that all EA trade provisions have the same meaning as the similarly worded ECT rules. I am rather inclined to think that, for example, if the question of interpretation of the EA Articles on prohibition of quantitative restrictions would be raised before the Court, the latter would follow its Polydor practise, and would refuse to accord to these EAs provisions the same meaning as they were intended to bear under the EC Treaty. Weiȕ (Chapter 5.2) writes about regulation of the establishment of companies and nationals and of the operation of companies and self-employed persons, another important component of the EU-candidate States relations. In this very thorough and effective contribution the author denotes, at the outset, the principles of equal treatment, non-discrimination and most-favoured-nation treatment on which the EAs establishment provisions are based. He then examines how the rights granted by the EA’s Articles are thereby to be applied in light of those principles. The author also looks at how the ECJ Centros decision may affect rights granted by the EAs to EU companies establishing a branch in one of the candidate States (p. 470). The issue of free movement of capital and payments has so far received little attention in the literature on enlargement, and from this point of view the contributions of Peers (Chapter 5.5) and Vehar/Ilešiþ (Chapter 5.6) are very timely. Peers emphasises the important role the Europe Agreements played in the accession countries towards facilitating free movement of capital, whereas this importance for the EU was quite marginal, given that the liberalisation of external capital movement was already ensured by the EC Treaty. He also predicts that disputes in this field will continue after the candidate States have acceded to the EU. I found the term ‘pre-European interpretation of domestic law’, introduced by àazowski in his essay on Approximation of Laws (Chapter 8), to be a very appropriate one (p. 636). Chapter 9 on Environmental law (Arnold/Inglis), in particular where it describes the EU acquis in this field, contains a host of complicated factual information. In my view, a more general approach would suffice here. The following sub-chapters (Inglis/Linda) on the take-up of environmental policies in the EU candidate States were more interesting to read and more relevant in the context of the book. Dziechciarz explores extensively how the candidate States implement EMU policies (Chapter 10.2).
393
Gaƺina Žukova The contribution of Kronenberger on transport (Chapter 24), otherwise complete and well-structured, must be supplemented by the important decisions of the Court of 5 November 2002 on European air transport policy in Cases C-466/98, C-467/98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98 and C-476/98 Commission v. the United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg, Austria, Germany. The author refers to these cases (p. 982), however, the judgements came out after the Handbook was already published. In these cases the Court extended the scope of Community exclusive external competence by reason of the adoption and execution of internal measures, or ‘whenever the Community has included in its internal legislative acts provisions relating to the treatment of nationals of non-member countries or expressly conferred on its institutions powers to negotiate with non-member countries, it acquires an exclusive external competence in the spheres covered by those acts’. Those interested in the subject should also study the Communication from the Commission on the consequences of the Court judgements of 5 November 2002 for European air transport policy, COM (2002) 649 final. Unfortunately, it is not possible to mention all contributions in a short book review. At the same time I believe that neither was it the authors’ intention that the Handbook be read from cover to cover. Rather, the book is a point of reference on the wide range of problems and issues raised during the preparation for enlargement and as such it equips the reader with a bulk of useful information and numerous references directing him/her to relevant primary sources. Both theoretical and practical insights are contained in this book, making it interesting reading. I recommend the Handbook on European Enlargement without hesitation to all EU lawyers, and to anybody involved in the work on enlargement or for those who are simply curious about the subject (as long as they are not too discouraged by the very high price of the book, Euro 225). Finally, it should be noted that the only material omitted from the Handbook on European Enlargement relates to the European Convention. Although the Convention came into being after the Handbook was already ready for print, I find it a legitimate reason to consider the future preparation of an updated version of this, in all other respects, excellent book.
Gaƺina Žukova
394
Peter Norman, The Accidental Constitution: The Story of the European Convention (Brussels, EuroComment, 2003, pp. 401). As the European Union expands to 25 Member States on 1 May 2004, taking in 10 new members, including Estonia, Latvia, and Lithuania, a question of paramount importance is how this enlarged Union will function in the coming years and decades. An answer to this question was produced by the 207 members of the Convention that met in Brussels to draft a ‘Constitution’ for the European Union, beginning in February 2002. Media accounts of the debates that later took place during the Italian presidency of the European Union concerning the draft Constitutional Treaty for the European Union tended to centre on the, unquestionably pivotal but rather straightforward, questions of voting weights in the EU and the composition of the European Commission, thus obscuring some of the achievements of the Convention on less controversial but perhaps more significant issues for the future of the European Union. As signs seem to indicate that consensus on the Treaty will be achieved in 2004,1 with the headline issue of voting weights receding, the focus of policymakers and citizens will turn to referendums, ratification and implementation of the Treaty in the upcoming months and years. While none of the three Baltic countries is expected to hold a referendum on the Treaty, ratification and implementation of its provisions will be a focus of legislators and policymakers in the future. An useful aid in the task of interpreting the Treaty, along with the websites2, is the book, ‘The Accidental Constitution’ by Peter Norman, formerly the Financial Times Brussels Bureau Chief and Chief Correspondent until March 2002. The timely publication of this book in late 2003 makes it a useful tool for those dealing with EU law in the light of the changes that the draft Constitutional Treaty is expected to bring. As the author himself writes, knowing ‘how’ the draft Treaty came about helps explain ‘what’ it contains. This unique and valuable book documents the sixteen and half months of the European Convention to draft a Constitutional Treaty for the European Union. The author, Peter Norman covered the Convention for EuroComment, also the publishers of this volume. Mr. Norman attended all the sessions of the Convention beginning on 28 February 2002 and consequently is able to provide insight into the atmosphere of the meetings and the changes in the chemistry of the relationship between the different groups of ‘conventionnels’,3 the institutions involved and their President. It
1
‘Back from the dead’, p. 6, Financial Times, 27/28 March 2004. See for, background notes of the Secretariat and Praesidium, draft articles, amendments, contributions by individual members of the Convention, speeches, the various versions of the constitutional treaty and the final draft treaty presented to the Italian Presidency of the EU on 18 July 2003 can be found on this website. It is foreseen that the contents of this website will remain accessible for at least five years, ; and see . 3 The term that Valéry Giscard d’Estaing used to describe the members of the Convention from the 28 participating States. 2
395
PƝteris Zilgalvis is important to note that he set out to produce an ideologically neutral account of the proceedings of the Convention and he has certainly succeeded in this respect. The book is divided into five parts and a documentary annex. It starts with Part I: Europe at a Crossroads, taking its name from the Laeken Declaration in December 2001. The Laeken summit set into motion a hitherto unique exercise for the EU: representatives of national leaders meeting together with national parlimentarians, MEPs and members of the European Commission to discuss initiatives to shape the future of the Union. It is also noteworthy that the representatives of applicant States participated, though not always on an equal basis side by side with representatives of current Member States. Mr. Norman explores the pressures for change in the EU rooted in both the upcoming ‘big bang’ enlargement of the EU to 25 Member States and the clear sense that many current EU citizens felt estranged from what they perceived as a bureaucratic, elite enterprise. Part II, entitled The Convention: from Conception to Skeleton, outlines why the method of a convention was chosen and how it was set up. The personalities comprising the presidency, praesidium and secretariat were to play a decisive role in forming the draft Constitutional Treaty that came out of the Convention. It is notable that as a perceptive chronicler of the Convention’s progress he describes the dynamics that developed such as the cohesive role played by the cross-border political families of MEPs and sometimes national parliamentarians, and the developing misunderstanding between the larger and smaller Member States. In the latter context, the activity of the candidate countries is not ignored. In Chapter 4 ‘Early Days’ he acknowledges the candidate countries’ achievement in establishing the right to use their languages in the Convention. However, this was the start of a quiet period for the candidate countries from which they emerged from only later in the convention process. Later, the author notes the increasingly prominent role played by members from the accession countries like Henrik Hololei of Estonia. Part III delves into Issues and Working Groups, as this title suggests. It should be acknowledged that Mr. Norman has succeeded in producing a book that is readable by both a specialist in EU law and by an educated reader with an interest in European politics. It is in this Part where the particular care he has taken to write a book that is at the same time accessible and rich in detail is obvious. While reporting the political discussions and personalities involved he does not forget to comment on issues like the differing perception of the legal nature of the instrument being drafted by members of the Convention. On the subject of whether the intention was to draft a ‘basic’ treaty, a constitutional treaty or a constitution, the author notes that initial discussions in the Convention did not clarify the aim of the work. Further, he perceptibly notes that in the early phase of work some members used the terms ‘constitution’ and ‘constitutional treaty’ interchangeably out of inattention to legal ‘details’, while others changed the nature of the instrument that they were referring to strategically according to the particular audience. Importantly for those interested in human rights law, the debate behind the possibility of the EU’s accession to the European Convention on Human Rights and the status of the EU Charter of Fundamental Rights is described. Extensive space is
396
Book reviews also devoted to voting procedures and the solutions eventually proposed by the Convention, including the development of bridge or passerelle articles in relation to particular cases of moving from unanimity to QMV in the text of the draft Constitutional Treaty. The debates and proposals on ‘enhanced cooperation’ are reflected, with the author noting the lesser known fact that defence, now foreseen as a sphere for cooperation between an avant garde of States, had been one of the first intended European projects in the 1950s but had ironically been terminated by the French National Assembly’s decision not to ratify a treaty on the European Defence Community in 1954.4 Mr. Norman highlights the some of the successes of the working groups in finding consensus on significant issues that had eluded agreement in successive intergovernmental conferences; particularly, agreement on a single personality for the Union, the ‘early warning’ system for national parliaments concerning subsidiarity and the understanding that the Charter of Fundamental Rights should be included in the Treaty. He notes pointedly however that the working party method was not utilised to address the questions on institutions, which were to prove the most controversial later in the IGC. However, it was clear before the working parties were set up that there were issues related to institutions on which governments were not open to compromise on, especially in a forum like a Convention working party dominated by parliamentarians. In the chapter on institutions, Mr. Norman skilfully recounts the reflection, proposals and negotiations surrounding this most contested section of the draft Constitutional Treaty. The author outlines the genesis of the proposal for a very powerful European Council president, as strongly backed by the big Member States, and how the negotiations on this question were pursued. He also devotes a great deal of attention to the question of the composition and size of the Commission, an issue which became a matter of principle for many of the smaller Member States,5 including Latvia. The negotiations on this question continued of course into the IGC. 4
Later in the Convention, as discussions on defence progressed, Latvia and Lithuania expressed concern about a defence guarantee becoming an unnecessary duplication of the structures and capabilities of NATO. 5 Already in the Appendix to the Declaration of the European Movement – Latvia on the Future of the European Union (Pielikums Eiropas KustƯbas LatvijƗ deklarƗcijai par Eiropas SavienƯbas nƗkotni) of 5 December 2001, we see the position taken that: ‘Each Member State must be represented at the European Commission. This is a very substantive principle, which must be observed.’ However, the European Movement-Latvia proposed the ‘enlargement solution’ of giving the President of the European Commission the right to divide responsibilities among Commissioners and, in case of necessity, establish the EC Presidium consisting of 4-6 Commissioners. The right to make decisions in urgent cases could be delegated to the EC Presidium. Further, the paper argued that ‘the argument that the EC with its 27 members would be incapable of acting could be partially refuted by this construction.’ It noted that many governments, e.g. in France, can have more than 27 members; in such large governments, internal cabinets are often established. It concluded by saying that membership of the EC Presidium should be decided by an objective system.
397
PƝteris Zilgalvis The Commission was, of course, a very high profile institution for the accession countries having been their partner in the negotiations on joining the EU. The author provides a useful analysis of how the perception of the Commission by Member States changed in the late 1990s from that of the representative of the common European interest in the institutional triangle to that of a body needing equal representation of Member States to safeguard national interests. The sense that the accession countries and smaller Member States needed to defend equal representation in the Commission, or at least rotation of Commissioners, seemed to have been heightened by the impression that Valéry Giscard d’Estaing gave of being a ‘big country man’, defending the interests of the biggest Member States. Mr. Norman writes that Giscard did little to dispel this impression in plenary, listening closely to the presentations from certain Member States while conversing with members of the Secretariat or Praesidium during speeches by members from smaller States. This observation is in line with those of a number of members of the Convention coming from smaller States. Part IV, entitled Changing Dynamics: From Skeleton to Early Draft Articles, depicts the shift in the tectonics of the Convention caused by the ‘invasion of the foreign ministers’, including Latvia’s Sandra Kalniete, and by the Commission’s rather surprising and rapid loss of influence in the Convention due to the leak of Penelope6 and related developments.7 Further, he depicts the gulf that grew greater between the smaller and larger Member States during the Convention, a troubling development for the EU, and the way that it was further complicated by the Iraq crisis. The controversy over the Franco-German paper on the European institutional architecture is analysed both in a political and legal context here. Other controversial topics such as the questions of whether to include references to God and federalism in the text are described here. However, the author’s attention to legal and procedural detail is evinced when he notes that the conclusion of Giuliano Amato’s first working group on consolidating the EU and TEC treaties, thus terminating the use of the ‘pillars’, was included as a line in Article 4(6) reading, ‘The Union shall have legal personality,’ and remained un-amended through the rest of the Convention.8 Part V addresses ‘the end game’, as Mr. Norman describes the final stages of work on the draft Constitutional Treaty and starts with the shock to the Praesidium, Commission and smaller member states produced by Giscard’s ‘22 April articles’. 6
A full draft Constitutional Treaty, sometimes described as a feasibility or working document, drafted at the request of the President of the Commission. Penelope can be found in English at http://europa.eu.int/futurum/index_en.htm.The odd circumstances surrounding its leak to the press served to reduce the influence of the Commissioners in the Praesidium and of the Commission as a whole in the Convention process. However, Mr. Norman that it was considered a document of technical importance and was utilised considerably in the Convention. 7 Later in the book, Mr. Norman analyses ‘what went wrong?’ for the Commission. 8 This is an important point in relation to the aforementioned possibility of the EU acceding to the European Convention on Human Rights.
398
Book reviews What follows is a riveting depiction of the final debates and negotiations both in the Convention and outside it. The author follows the activities of all the actors involved in a ‘geographically balanced’ manner, noting the roles played by Latvia’s Sandra Kalniete and Estonia’s Henrik Hololei, along with those more familiar on the EU stage until now. With the hindsight of the 2003 IGC and the movement forward on the IGC in 2004, it is interesting to look back at the discussions involving the Polish and Spanish representatives at the stage of the Convention depicted in these chapters. This chapter could be supplemented by an account of the fate of the Treaty during the Italian presidency of the EU and the IGC, and the negotiation of the final version adopted by the IGC revitalised in 2004. This is of course in no way a criticism of the author, who has done all his readers a great service by completing this book at a time when it is especially useful in light of the topicality of the draft Constitutional Treaty and its adoption. The Documentary Annex, Part VI, is particularly useful to the reader both for understanding parts of the book and as a reference because of the useful commentary. It contains Giscard’s draft institutional proposals of 22 April, and the most relevant parts of the draft Constitutional Treaty to the discussions reflected in the book: Preamble and Part I with comments, Preamble of Part II and selected Articles from Part III and IV with comments. The author notes finally that the consensus on the Treaty produced some notable achievements. Its final result, the Treaty, corresponds to the reality of the European Union as a hybrid structure rooted in dualities with some federal traits but firmly based and dependent on its constituent, sovereign nation States. The draft Treaty successfully reflects the two sources of the Union’s political legitimacy: the Community and the individual Member States with the citizen represented in both. It is of great importance to the further development of the EU that a Constitutional Treaty based on the consensus of the Member States, large and small, new and old, come into force in the near future and this book is a valuable tool in interpreting how, at least most of, that Treaty came to be. Hopefully this quality work will be sufficiently distributed and will reach the wide readership that it deserves.
PƝteris Zilgalvis
399
List of Contributors Stuart E. Hendin Q.C.
LL.M. (National University of Ireland, Galway, 2002), LL.B. (Queen’s University, 1973), M.A. Carleton University, 1970), B.A. (University if Ottawa, 1967); a barrister and solicitor; Queen’s Counsel since 1986
V. Kelly Keane
B.A., LL.B, LL.M. (National University of Ireland, Galway, 2002)
KristƯne Krnjma
Lecturer of International Law at the Riga Graduate School of Law and lecturer of EU Law at University of Latvia; Doctoral student (LL.D.cand., University of Lund and Riga Graduate School of Law), M.I.L., (University of Lund), LL.B. (University of Latvia)
Julia Laffranque
Ph.D., LL.M. (Münster); Deputy Secretary General on legislative drafting at the Ministry of Justice of Estonia
Tomas Lamanauskas
Doctoral student at the International and European Law Department, the Faculty of Law, Vilnius University; Head of the Legal Section, Communications Regulatory Authority (RRT) under the Government of Lithuania
Egil Levits
Judge at the European Court of Justice
†Dietrich A. Loeber
Dr. iur., Dr.iur.h.c., emer. Professor, University of Kiel; Foreign Member, Academy of Sciences, Latvia
Laima Masalaite
Staff Memember of the Minostry of Foreign Affairs of Lithuania
Raimundas Moisejevas
LL.M. (Law University of Lithuania); Lecturer at the Law University of Lithuania
401
List of Contributors
MƗrtiƼš Paparinskis
Stud. iur., University of Latvia; Associate at Sorainen Law Riga
Juris Rudevskis
Lawyer at the Registry of the European Court of Human Rights
Claire Salignat
Student in Political Science in Lyon from 1999 to 2002 (IEP de Lyon); Trainee in the Unit “Citizenship and Fundamental Rights” in Directorate General of Justice and Home Affairs at the European Commission from October 2003 to March 2004. Admitted to the European Master’s Degree Programme on Human Rights and Democratisation, Venice, 2004
DaimƗrs ŠkutƗns
LL.B. (University of Latvia), LL.M. (University of Cambridge); Alfenus Law Office (Riga), partner; Assistant attorney-at-law, member of the Bar of Latvia
Gaƺina Žukova
Ph.D. (EUI, Florence), LL.M. (University of Exeter, UK), B.A. (University of Latvia)
Dainius Žalimas
Ph.D., Associate Professor of International Law, Law University, Lithuania
Ineta Ziemele
Söderberg Professor of International Law and Human Rights, Riga Graduate School of Law, Latvia, Visiting Professor, RWI, Lund University, Sweden
PƝteris Zilgalvis
J.D.; Deputy Head of the Division of Bioethics, Directorate General-Legal Affairs, Council of Europe
402
Information for Authors 1. All contributions are refereed. The editors reserve the right to suggest modifications and/or additions to submitted contributions, and further reserve the right to reject or to revoke acceptance. 2. Languages: Contributions must be submitted in English. Authors should ensure that their contribution is reviewed by a person who is competent in English, and edited as necessary. Contributions accepted for publication may, at the discretion of the editors, be linguistically revised. Contributions in German and French may be considered for publication. 3. Proofs: The authors may receive proofs for correction. Authors are requested to keep corrections to a minimum, with the exception of taking into account important material or references not previously available, or development of notes. Substantial modifications other than those described are permitted at the discretion of the editors. 4. Manuscripts should not exceed 25 pages. They should be typed, doublespaced with wide margins, and presented in Microsoft Word format. The editors are unable to accept non-IBM or MS DOS manuscripts. 5. Manuscripts should be submitted via e-mail attachment (virus scanned) or floppy disc. If the article is submitted on diskette, the latter shall be properly labelled with the title, author, operating system and software used. Always keep a copy of the submission. 6. Authors should check for errors before submitting their work. They are responsible for providing complete and correct references, for accuracy of quotations, and for obtaining any permission necessary for quoting another author’s material. 7. Manuscripts must adhere to guidelines on format, spelling and style available from the editors, especially; U.K. English must be the language selection tool for Microsoft Word. 8. Book reviews: The editor will accept reviews of books published internationally and locally and in another languages than English. Book reviews shall not exceed 5 pages. They should be submitted to Dainius Žalimas, Book Review Editor, at [email protected].
403
Baltic Yearbook of International Law 9. Copyright and Permissions: Copyright is established in the name of Kluwer Law International. Submission of a paper for publication implies that copyright reverts to the publisher from the author and that the article has not been published elsewhere, and is not being considered for publication elsewhere. Consent to Publish and Transfer of Copyright forms will be sent to authors whose work has been accepted for publication. 10. Fees: Authors will not receive a fee, but will be presented with a copy of the Yearbook and twenty-five offprints of each article free of charge. Ordering information for additional offprints will be sent to each author as publication nears. Submissions should be addressed to Carin Laurin, Publications Officer, at [email protected] or on diskette via post to Raoul Wallenberg Institute, P.O. Box 1155, 221 05 Lund, Sweden, by January 15th of each year for publication the same year. Further information and enquiries should be directed to the same also via phone at +46 (0)46 222 12 47 or fax at +46 (0)46 222 12 22. Authors are requested to follow the guidelines below in the preparation of their manuscripts: 1. British English spelling should be used. 2. The preferred reference source is the Oxford English Dictionary. 3. The preferred font and size for text and footnotes are Times New Roman 12 pt and Times New Roman 10 pt, respectively. 4. Do not use bold or underline formats to emphasise a word or sentence. Words should only be emphasised using italics, sparingly. 5. When beginning a new section the first paragraph should not be indented, however, subsequent paragraphs should be indented. Punctuation 1. One space after each punctuation mark is sufficient. That is, after a full stop (.) there should only be one space. Figures and Numerals 1. Spell out the numbers from one to ten (except in pages, legislation, dates and other similar references); use numerals for numbers 11 and higher. Also use numerals throughout for dates and times.
404
Information for Authors 2. For percentages spell out the word per cent. For example, eight per cent, not 8%. 3. Spell out fractions. For example, two-thirds or three-quarters. 4. Page ranges should be separated by an en dash. For example, pp. 26−46. Foreign and Latin Words 1. Foreign and Latin words should be italicised. Italicising 1. Italics are used for emphasis. Do not use bold or underline formatting for emphasis. 2. Italics should be used sparingly. If they are used too often the emphasis will be weakened. 3. Foreign and Latin words should be italicised. 4. All case names should be italicised, however, the word case and the v. should not be italicised. For example, Hermes v. FHT Marketing case. 5. All signals should be italicised in footnotes. Such signals include see, see also, cf., contra, but see, but cf., see generally, et seq., and e.g. Monetary Amounts 1. Do not use dollar signs, use USD (US dollars), SEK (Swedish Kronor), EUR (Euro), etc. This abbreviation should be placed directly before the amount it refers to. For example, EUR 100. Dates and Time 1. For dates including day, month and year use the following format, 1 January 2003. 2. If only month and year is included use the following format, January 2003. 3. If only month and day is used use the following format, 1 January. 4. Years should be separated by an en dash. For example, 1980−1986. Headings 1. Authors are asked to use only three levels of headings, although four can be accommodated. They should be numbered consecutively and formatted as in the example. The first letter of all words should be capitalised, except prepositions and articles. Example: 1. Democracy within States 1.1. Key Principles and Institutions 1.1.1. Civil and Political Rights 405
Baltic Yearbook of International Law Quotations 1. Direct quotations should be enclosed in double quotation marks (“ ”) and run on in the text. 2. Single quotation marks (‘ ’) are used to distinguish words, concepts or short phrases under discussion. 3. For larger sections of quoted text (i.e., anything over five lines) use block quotes: set these off from other text by adding a blank line above and below the section, and indent the block of text on the left and right by five points. Reduce type size to 10 pt. These larger sections, or ‘block quotes’, should be enclosed in quotation marks. 4. Quotation marks should come before all punctuation, except where the whole sentence is a quotation. Example: He said “I agree with you”. “Don’t do it.” 5. Where the quoted material begins with a capital but is being placed in the middle of a sentence and the letter should grammatically be lower case, place the letter in square brackets and change to lower case. Example: As explicitly stated in Article 20 “[a]ny propaganda for war shall be prohibited by law”. 6. Omission points a. Use to designate that the quoted material has omitted information (usually only in a sentence). b. Should be styled as three spaced points (full stops), with a space before the first point and a space after the last point. c. When used within quotations, omit all punctuation (including full stops) immediately prior to the omission points. d. It is unnecessary to include omission points at the beginning of a quote if the first letter of the quoted material is in lower case. The lower case letter denotes that the quote comes from the middle of a sentence. Example: Article 6 also states that the right to life “shall be protected by law”. Article 50 states that the “. . . Covenant shall extend to all parts of federal States without any limitations or exceptions”. Citations • When citing the following general guidelines should be observed: • When in doubt, provide all information – it is easier and faster to cut than to hunt down minutiae. • If there is one footnote in a sentence the footnote should follow all punctuation. However, when there is more than one footnote the 406
Information for Authors
• • • • •
• •
footnotes should be placed after the idea, quote, article, etc, except for the last footnote, which should follow all punctuation. Examples: Article 6 can be said to predate the Covenant by many years.12 Both case law13 and customary practice illustrate this point14 Do not use endnotes; use footnotes (bottom of page). All footnotes should end with a full stop. Footnotes should be in Times New Roman 10 pt. Do not make reference within the text to other parts of the text using page numbers. Use section headings, numbers/letters, or a prose description of the part of the text you wish to refer to. The following abbreviations should be used: o pp. = pages o p. = page o para. = paragraph o paras. = paragraphs Example: pp. 25−27. et seq. is preferred to ff. All signals should be italicised in footnotes. Signals (for example: see, see also, cf., but see, etc.) should not be separated from the rest of the citation by a comma, except for e.g. Examples: See Rispoli v. Italy, 30 October 2003 . . . E.g., J. Klabbers, ‘The Concept of Treaty . . .
References and Cross References 1. When referring to a previously cited work use the following format: author’s surname, supra note . . . and give the number of the footnote in which the work was first cited. Example: Bogdan, supra note 8. 2. When referring to a previously cited case use the following format: case name, supra note . . . and give the number of the footnote in which the case was first cited. Note: long case names should be shortened appropriately. Example: Lockerbie case, supra note 2. 3. When referring to a previously cited work or case but referring to a different page or paragraph than what was originally cited indicate the page or paragraph referred to. Examples: Crawford, supra note 10, p. 25. Rispoli v. Italy, supra note 6, para. 18.
407
Baltic Yearbook of International Law 4. When referring to a work cited immediately above the citation in question, and with the same page number, use the following: Ibid. Remember: use ibid. only for immediately preceding references, otherwise, use supra note. 5. In cases such as no. 4 above, but with a different page number indicate the page referred to. Example: Ibid., p. 4. References − Examples References should adhere to the specifications below, in accordance with the publisher’s requirements. Most importantly, our ability to furnish missing bibliographic information on sources is limited by time constraints. The guidelines below have been simplified greatly with respect to the publisher’s guidebook in order to facilitate adherence. 1. Website/Internet references For journal articles, books, case law, newspaper articles, and other documents accessed via the Internet simply cite as normal adding the URL (website address) in angle brackets (omitting http://) and the date the material was accessed to the end of the citation. For example: Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, ICJ, Advisory Opinion, paras. 61−63, <www.icj-cij.org/icjwww/icases/iunan/ iunanframe.htm>, visited on 29 October 2003. If the material does not lend itself to the above mentioned citation format provide the following information in this order: The capitalised initial of the author’s first name and middle name (if applicable), followed by the author’s surname (If relevant) and/or issuing institution, group, etc. (if relevant) Title of document in italics. URL (website address) in angle brackets omitting http://. Date that the material was accessed. 2. Articles in journals The following information should be contained in this order: The capitalised initial of the author’s first name and middle name (if applicable), followed by the author’s surname. The name of the article enclosed in single quotation marks. The volume number. The name of the journal in italics. The year in parentheses. 408
Information for Authors Page(s)/paragraph(s) directly referred to or the page range of the article. Examples: R. O’Keefe, ‘The Admission to the United Nations of the Ex-Soviet and ExYugoslav States’, 1 Baltic Yearbook of International Law (2001) p. 170. O. Spiermann, ‘Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens’, 71:4 Nordic Journal of International Law (2002) pp. 530−534. 3. Books The following information should be contained in this order: a. The capitalised initial of the author’s first name and middle name (if applicable), followed by the author’s surname. If an article has two authors their names should be separated by the word and. If an article has more than two authors, list only the first author, followed by et al. b. The title of the book in italics. c. The publisher, the place of publication and the year of publication in parentheses. d. Editor and editors should be specified as: (ed.) and (eds.) respectively. e. Page(s) or paragraph(s) referred to (if applicable). Example: L. Holmström (ed.), Concluding Observations of the UN Committee on the Elimination of Racial Discrimination (Kluwer Law International, The Hague, 2002) pp. 77−79. 4. Chapters in books The page reference at which the cited chapter begins should always be specified or specify the specific page(s) referred to. Example: A. Eide, ‘Cultural Rights and Minorities: Essay in Honour of Erica-Irene Daes’, in G. Alfredsson and M. Stavropoulou (eds.), Justice Pending: Indigenous Peoples and Other Good Causes (Kluwer Law International, The Hague, 2002) p. 83.
409
Baltic Yearbook of International Law 5. Case law: The following information should be contained in this order: a. Case name in italics, excluding ‘v.’ which should be in roman. b. Parties to the case if not included in case name, in parentheses. c. Date of judgement. d. Issuing court, this can be abbreviated if the court is well known internationally. For example, ECHR, ICJ, etc. e. In the absence of any indication to the contrary the cited case is a judgement on the merits. Any variation from that should be stated. For example, advisory opinion, a dissenting opinion, provisional measures or if it has some other unique characteristic. f. Reference or application number (if applicable). g. Source, however, if accessed by Internet cite appropriately, see above. h. Page(s) or paragraph(s) referred to (if applicable). Examples: International Court of Justice: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 8 December 2000, ICJ, Provisional Measures, I.C.J. Reports 2000, p. 182. Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, ICJ, Advisory Opinion, paras. 61−63, <www.icjcij.org/icjwww/icases/iunan/iunanframe.htm>, visited on 29 October 2003. European Court of Human Rights: Rispoli v. Italy, 30 October 2003, ECHR, no. 00055388/00, para. 26, , visited on 29 October 2003. Velikova v. Bulgaria, 18 May 2000, ECHR, no. 41488/98, Reports of Judgments and Decisions 2000-VI, para. 92. Inter-American Court of Human Rights: The Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 31 August 2001, Inter-American Court of Human Rights, Series C No. 79, para. 164, <www.corteidh.or.cr/seriecing/serie_c_79_ing.doc>, visited on 29 October 2003. 410
Information for Authors 6. UN documents, publications, and resolutions The following information should be contained in this order: a. Author/agency/body (if necessary). b. Title in italics (if necessary). c. Document symbol or publication sales number in parentheses. d. Specific page(s) or paragraph(s) referred to (if applicable). 7. Newspaper articles The following information should be contained in this order: a. The capitalised initial of the author’s first name and middle name (if applicable), followed by the author’s surname. b. Title of article. c. Newspaper. d. Date. e. Page or section. Example: S. Kishkovsky, ‘The Most Dangerous Place in Europe for Journalists’, The International Herald Tribune, 24 October 2003, p. 2.
411
