The end of impunity for EU human rights breaches?
The European Court of Human Rights courtroom

According to the European External Action Service (EEAS) website, the EU "sees human rights as universal and indivisible. It actively promotes and defends them […] when engaging in relations with non-EU countries". In fact, the European Union usually regards itself as an international human rights defender, putting sanctions on those who compromise basic human liberties.

The  "European Sanctions" blog states that as of today, the EU has directed sanctions at 26 states (including North Korea and the United States), a host of terrorist organizations (from al-Qaeda to the less known Movement for Islamic Reform in Arabia), and dozens of individuals (among whom Milica Gajić-Milošević, the late Serbian ex-president Slobodan Milošević's daughter-in-law). But what happens if a EU member state breaches human rights? What if the EU law itself is in contradiction with citizens' fundamental liberties? How the EU citizens can enforce their rights within the current EU infrastructure?

EU’s human rights instruments

The 28 EU member states - as well as potential EU candidates - are bound to respect the "Copenhagen Criteria", where the respect of human rights, democracy and the rule of law are highly ranked. The Treaty of Lisbon has brought a substantial change to the EU human rights environment. The Charter of Fundamental Rights of the European Union was implemented as part of the EU’s institutional charter and was given a legally binding status. It covers a wide range of areas such as civic, political, economic and social rights. The EU citizens dispose of three major options when enforcing their rights:

- if they suspect a mistreatment or misadministration by EU bodies or institutions, they can submit a complaint to the European Ombudsman, a position currently held by Emily O’Reilly, author and former Irish journalist. However, the Ombudsman decisions are not legally binding.

- in certain exceptional cases, they can bring an action for annulment in front of the General Court of the European Union Court of Justice. Plaintiffs are then requested to prove that EU law has "direct and adverse effects" on their fundamental rights. This is extremely difficult, though, since the Court shows a very restrictive interpretation of these concepts.

- the last option is to bring an action in front of the European Court of Human Rights. In this case, certain conditions have to be fulfilled: exhaustion of domestic remedies, a six-month time lapse after the last judicial decision at national level and a breach of a least one right enshrined in the Convention. Applications can be directed to the national legislation of EU member states or to EU law - Member States may incur responsibility if they act in a way required by EU law but in violation of the Convention.

It is worth to note that the Convention does not cover all the rights of the Charter, since it does not include economic or social rights. EU citizens have generally experienced that ensuring their rights is complicated and disappointing. In that matter, a report by the Robert Schuman Foundation speaks of "significant gaps in the EU’s system for the protection of human rights". Nonetheless, the EU is still on the move.

Reforming the EU’s human rights protection

Two directions are being considered to secure a better human rights protection of EU citizens. On October 3rd, the Belgian MEP Louis Michel presented a report entitled "The Situation of fundamental rights in the European Union in 2012". The proposals of this report were intensively discussed at the European Parliament, since Michel called for "the establishment of a set of recommendations and penalties, the incorporation an early-warning system, political and technical dialogue, letters of formal notice and ‘freezing procedures’ for every human rights breach committed by a EU member state". Those sanctions could be initiated by the European Parliament or the Commission on the basis of shared powers.

The second option is the EU accession to the European Convention of Human Rights. Article 6 of the Treaty of the Functioning of the European Union clearly states that the EU ‘shall’ accede to the Convention. This would permit, for example, EU citizens to directly challenge EU laws, regulations and directives in front of the Strasbourg court.

However, negotiations are still on the way and major disagreements have still to find solutions: who will decide on the appointment of the EU judge of the Court (the European Court of Human Rights is composed of one judge for each party of the Convention)? Who will represent the European Union in a ruling against EU law? What would be the consequences of EU ‘losing its last say’ in judicial matters - as every piece of EU legislation could be declared unacceptable by the Strasbourg Court?

These two options will doubtlessly shape the future of EU citizens’ human rights protection.