Promote Respectful Dialogue

“Respect for the Rights of Others is Peace”

Benito Juarez

As a parliamentary observer from Mexico at the recently concluded spring session of the Parliamentary Assembly of the Council of Europe (PACE), the message that we Mexicans should take into account is to encourage respectful dialogue and show mutual respect when engaging in judicial talks to defend the rights rights, such as the right to freely elect our rulers.

The PACE resolution to promote respectful dialogue was presented by George Katrougalos (Greece, UEL) in his report “European Convention on Human Rights and national constitutions”. He noted that nations should refrain from taking any action that could exacerbate potential conflicts between the national constitutional order and the Strasbourg Court.

Katrougalos proposed to analyze the tension that arises between the three parallel legal systems in Europe: national legal systems, the European Convention on Human Rights and the law of the European Union. Due to the interconnection between these systems, he mentioned that there may be conflicts between them. Therefore, he suggested that the supreme courts of each of these legal systems collaborate effectively to alleviate this tension and work together in a common European legal space. Cooperation must be mutual and respectful between the different jurisdictions and legal orders to build a common European legal area of ​​rights and freedoms.

The national legal systems have a supreme norm: the Constitution; the European Convention on Human Rights, signed in Rome and in force since September 3, 1953; and the court as arbiter of this system. There is also the Law of the European Union and the Court of Justice of the European Union. He explained that although there is interconnection between these three systems, there is also the possibility of conflicts, which has occurred historically.

He said that there have been decisions by constitutional courts questioning the supremacy of European law, and recently, some courts have questioned the interpretation of the European Convention on Human Rights or its supremacy over national constitutions. He foresees that, following the accession of the European Union to the European Convention on Human Rights, there could be tension even between the Court of Justice of the European Union and the European Court of Human Rights. So he asked himself: how can we alleviate this tension?

He observed that, since the European space is not a federal state, it is not possible to establish a legal hierarchy between these norms of the three parallel and interconnected legal systems. Each of them has its own supreme rule. There is no European standard that can act as a superior rule or principle. If this is the case, how can we reconcile these parallel and overlapping legal orders?

The answer is that effective dialogue and synergistic cooperation must be promoted between the supreme courts of any of these three parallel legal systems. There is a theoretical construct for this, called multilevel constitutionalism in Europe, in which each of these three legal systems represents a different level of the construct.

In practice, this implies, first of all, the deference of one jurisdiction to another when and where it has jurisdiction. Therefore, the European Court of Human Rights has general jurisdiction over the interpretation of treaties that must be fully respected, not because the European Convention on Human Rights is a superior norm in relation to constitutions under most European legal orders. .

However, this does not exist according to the legal services of the national parliaments surveyed. In the first place, there is the political will of our nations to be part of this political family of European states willing to establish a common European legal space and, above all, a juris communis of rights at the level of human rights.

Second, there are arguments at the level of international law that are not related to a hierarchy of norms, but only to the obligation of each state to respect the basic rule pacta sunt servanda. The Vienna Treaty explicitly establishes that no type of internal norm can be an excuse to deviate from this international obligation.

Katrougalos concludes by noting that the European Convention on Human Rights and national constitutions are not in conflict, but rather complement each other. Mutual respect and understanding are essential to ensure a uniform application of human rights in Europe. It is important that national and supranational courts communicate and collaborate effectively to ensure a consistent approach and avoid unnecessary disputes.

In addition, national judges need to be familiar with the case law of the European Court of Human Rights and apply it correctly in the context of their own domestic legal order. This approach can improve the quality of judgments and avoid the need to resort to the supervisory jurisdiction of the European Court of Human Rights.

In summary, the resolution approved with 87 votes in favor and two against in PACE, seeks to build a coordinated multilevel constitutionalism, based on mutual respect and complementarity, which allows a uniform application of human rights throughout Europe. Only in this way can it be guaranteed that human rights are effectively protected in all Member States and that the European Union and the Council of Europe continue to move towards greater integration and unity based on common values.

Meanwhile, in Mexico, the Supreme Court of Justice of the Nation invalidated, by nine votes in favor and two against, a decision of the Legislative Branch that violated the human rights to elect our rulers, due to a clear violation of the process of law construction. In addition, the Executive Branch attacked the Judicial Branch in charge of making said determination without legal reason. I invite from this column to encourage respectful dialogue. Here is an example of how to do it. Together, we can learn from the European experience and apply it to our Mexican reality to promote a respectful and effective dialogue between the different branches of power and defend the human rights of our population.

*The author is a specialist in general surgery, certified in public health, doctorate in health sciences and public administration, and is a re-elected deputy of the PAN parliamentary group in the LXV Legislature.