European Convention on Human Rights and National Constitutions: A Resolution of the Parliamentary Assembly of the Council of Europe

George Katrougalos

Democritus University of Greece

Despite Matthew 6:24, many of us in academia are trying to export our theoretical ideas into applied politics. For us, in Greece, it is a tradition. One of the fathers of Greek Constitutional Law, Alexandros Svolos, urged us to be not only savants and scholars, but also soldiers of our discipline.

This blog post is about a Resolution of the Parliamentary Assembly of the Council of Europe (PACE) entitled ‘European Convention on Human Rights and national constitutions’. I am both a Professor of Public Law and a Member of PACE, and in the latter capacity I moved this Resolution. It was discussed by PACE and approved at its Plenary session of April 2023 with a big majority: 87-2. See here for the Resolution and my explanatory memorandum, with reference to other documents of the Council of Europe and an Appendix with the responses of 34 Parliaments of member States to a questionnaire providing details about legal provisions and judicial practice on the relations between the European Convention on Human Rights (ECHR) and national constitutions.

In the Resolution, the Council of Europe, for the first time to my knowledge, has accepted the concept of “multi-level constitutionalism” as a heuristic tool for the increasing interconnectedness and inevitable friction between the European Court of Human Rights (ECtHR), national constitutional courts and the Court of Justice of the European Union (CJEU). The Resolution underscores that although there is not a formal hierarchy among the different Grundnormen of multilevel constitutionalism (EU Law, ECHR and other Treaties of the Council of Europe and national constitutions), and tension between the respective legal orders can arise, it is essential that any solutions to such conflicts respect States’ international legal obligations, and the credibility and legitimacy of the ECtHR as the final arbiter for the interpretation and application of the ECHR. 

Actually, due to the lack of a constitutional hierarchy between the different sets of legal norms (national, ECHR, European Union), there is a subsequent lack of formal avenues for handling and deciding disagreements. However, the Resolution considers that it is not necessary to seek to entirely avoid potential conflicts between different jurisdictions; in general such conflicts can add to the development of judicial thinking and reasoning, provided that they take place in the framework of constructive dialogue between the respective courts. Similar conflicts could arise as a result of the accession of the European Union to the ECHR, not least given some of the specific requirements of the European Union institutions following Opinion 2/13 of the CJEU. These matters will need to be grappled with as part of the ongoing work toward accession of the European Union to the Convention.

The Resolution suggests that national constitutional and supreme courts should seek, where possible, to align their human rights analysis as closely as possible with the analytical approach taken by the ECtHR. Such an approach can be a useful tool in ensuring a consistent approach between the jurisdictions and in avoiding unnecessary conflicts. It considers that an approach by domestic courts that seeks, as far as is possible, to harmonize conflicting provisions through interpretation is to be preferred over any strict hierarchy of norms that seeks to disapply either domestic law or the ECHR. There is already a procedure of advisory opinions of the ECtHR, under Protocol No. 16 to the Convention, which allows national courts to address a preliminary question to the ECtHR regarding the interpretation of the ECHR. However, only 19 of the 47 member States of the Council of Europe have ratified the Protocol and only seven requests for an advisory opinion have so far been submitted by national courts.

In any case, Article 46(1) of the ECHR stipulates the obligation of member States to comply with final binding judgments of the ECtHR, underlining that domestic legal or constitutional issues are not a valid excuse for a failure to comply with such judgments. However, this obligation has not remained unchallenged. In 2017, the Russian Constitutional Court declared that it is impossible to implement an ECtHR judgment if it contravened the Russian Constitution. In 2020, the Russian Constitution was amended to provide explicitly that international decisions are not enforceable in Russia if they contradict the Constitution. 

The most recent test to Article 46(1) came from Poland. Following the ECtHR’s Xero-Flor judgment, the Polish Constitutional Tribunal (in cases K6/21 and K7/21) declared that Article 6(1) of the ECHR was unconstitutional to the extent that it conferred on the ECHR the competence to assess the legality of the election of judges to the Constitutional Tribunal. Successive decisions of the Committee of Ministers have recalled the clear and unconditional obligations on Russia and Poland to comply with binding final judgments of the ECtHR in line with Article 46(1) of the ECHR.

In the preparation of the Resolution and my memorandum I tried to explore the possibility to transfer to the level of the ECtHR the innovative proposal of Sarmento and Weiler to establish a mixed chamber of the CJEU with national judges, in cases where there is a question as to whether EU legislation is intra vires. In the Convention context, Professor Weiler, who was invited to a hearing of the Legal Committee of PACE, suggested that if the Grand Chamber of the ECtHR knew it needed to deliberate on a decision relating to a delicate constitutional matter, then it could have an in camera hearing involving the ECtHR and a selection of national constitutional court judges. This could include a judge from the member State concerned (but not only that State). The matters to be discussed could include whether the issue fell within the margin of appreciation accorded to member States under the Convention. There should be no decision-making power in such hearing; it would be more of an organized dialogue to help inform the ECtHR about the issue, using the wisdom of constitutional court judges from a diverse number of States. Even if the ECtHR judges did not change their mind following such a discussion, it would at least help to improve the quality of their reasoning, making it more convincing in the eventual judgment.

Further creative thinking is necessary for promoting mutual understanding and respect between the different legal orders and different courts. This is the only way that European multilevel constitutionalism can be shaped in conformity with the overarching principles of Rule of Law and Democracy, the latter in the sense of reconciling popular sovereignty with States’ international obligations in the European project. I believe that preserving constitutional identity, a concept developed by several European constitutional courts as an additional text for the constitutionality of international norms, is not at all incompatible with the endeavor of creating a common European space of rights and freedoms. It is up to judges, but also to academics and politicians, to reconcile them in a functional, although not without contradictions, legal continuum. After all, in all its manifestations – national, supranational or international – law is always a battleground of conflicting interpretations and extrapolations, reflecting the clash of political and social interests it regulates. 

George Katrougalos is a Professor at Democritus University of Greece, and President of the European Unified Left at the Parliamentary Assembly (PACE) of the Council of Europe 

Suggested citation: George Katrougalos, ‘European Convention on Human Rights and national constitutions: A Resolution of the Parliamentary Assembly of the Council of Europe’ IACL-AIDC Blog (20 June 2023) https://blog-iacl-aidc.org/2023-posts/2023/6/20/european-convention-on-human-rights-and-national-constitutions-a-resolution-of-the-parliamentary-assembly-of-the-council-of-europe.