1. Professor Dagmar Schiek

2. Colliding Spheres of Justice? Professor Dagmar Schiek
ECHR
National constitutions EU
Professor Dagmar Schiek

3. Equality – Evelyn Collins
European Union
Origin as European Economic Community meant less relevance of human rights per se, but strong impetus on equality
Important influence in Member States, including UK, through the combination of case law, legislation and committee work
European Convention of Human Rights – Council of Europe
Shared responsibility
Now under review
New commissioner resolved to improve the implementation and enforcement of human rights
Dunja Mijatovic

4. Risks on equality law now (still summarising Evelyn)
European Union
Not only is there reluctance to progress in legislation
But there are also some signs of retracing of steps by the Court of Justice
Race case Jyske Finans C-668/15 EU:C:2017:278
Headscarf cases Achbita and Bougnaoui, both decided on 14 March 2017
Very limited on authority of national equality bodies, and no steps forward to implement the Council of Europe recommendations on this front
National risks
“Brexit”
loss of relevance of CFREU (left with Human Rights Act)
In Northern Ireland threats for continuing incomplete implementation of equality directives and GFA
Less prominent challenges by EU Commission to Slovenian, Spanish and other laws
Equinet web page has more!

5. Conclusions Evelyn Collins
There are clearly risks for equality law, as evidenced by the reluctance of EU bodies such as the ECJ, and the Council, and individual Member States
There are also opportunities, in particular in the Council of Europe improving the enforcement of its human rights agenda (including the review of the GPR on equality bodies), and also undertaking legislative work in race equality.

6. OPEN QUESTION: CFREU  NATIONAL UK LAW?
Both the Human Rights Commission and the Equality Commission of Northern Ireland support the implementation of the CFREU as national law
But: what would this really mean?
Expansion of rights guaranteed in comparison to ECHR and the (absent) written constitution in the UK and NI presently
Scope of application would be nil after Brexit
Could be addressed by eliminating Article 52
Enforcement would be much weaker
Lack of Court of Justice and EU Commission role or any other external control
If enforcement is likened to the Human Rights Act, it will be very inefficient.

7. Main points of panellists first panel
Biljana Kotevska
Urged us to take a wider approach to positive action in order to recognise any cases under ECHR
Promoted an obligation to take positive action rather than mere tolerance
Amal Ali
Demanded that EU and UK law should recognise intersectionality in order to properly address discrimination against veiled women, which is at the intersection of gender and religion
Massimo Fichera
Addressed the social justice aspect of the panel by promoting for the concept of constitutional identity to be implemented at local level (communitarian / subsidiarity)

8. Open question panel one discussion
Is it possible to juxtapose a human rights perspective and an anti-discrimination perspective?
protection against discrimination be a human right?
Dangers of replacing discrimination by freedoms aptly illustrated by headscarf cases: freedoms invite more restriction by balancing them against each other
How to deal with identities
Communitarianism rebranded as principle of subsidiarity?
Ignoring the potential clashes between anti-discrimination law and protecting group identities?
Social Justice
Only a fiscal question, of a redistribution ( waiting for fairer weather)?
Or also a question of substantive rights / judicial enforcement?

9. Human Rights vs ? Criminal Justice – Daniel Sarmiento
Judicial cooperation in criminal justice issues
Mainly motivated by complementing the EU project (initially limited to the Internal Market)
Has accelerated since the Amsterdam Treaty (1999), due to additional competences of EU, integrated into the main framework with Treaty of Lisbon (2009)
Human rights and criminal justice
ECtHR focused on the rights, procedural guarantees (mainly of the accused)
ECJ different focus: mutual recognition as a starting point
This creates challenges, as illustrated by the recent reference of the Irish court regarding an extradition to Poland, for example

10. Supranationa criminal law (EU)
International Criminal Court with very limited remit indicative of limited scope of international criminal law
ECHR is a case in point, as only human rights protection are addressed, not generally criminal law
European Union an exception to this
From Treaty of Lisbon full legislative competences in the field
 harmonising criminal law
 European prosecutor is about to be established
Incident development of criminal law
Tax cooperation
Anti-money laundering measures (ALM)
Banking union
Free movement rules limit enforcement of criminal law, e.g. gambling

11. Fundamental challenge of EU criminal law
Power to punish is vested in the people.
Is there a European people (yet)?
Daniel is doubtful, whether the democratic conditions for an EU criminal justice system are already fulfilled
Open question:
where does this leave human rights protection?

12. Main points of panellists Second panel
Araceli Turmo on ne bis in idem
Identifies a fundamental division between the two courts:
ECHR – double track enforcement outside the core of criminal law is viewed as one state response
ECJ – initial reluctance to accept ne bis in idem (Akerberg Frasson), increasingly assertive defence
Maribel Gonzalez Pascual:
Identifies triangular tensions between national courts (and implicitly constitutions), ECJ case law ECHR case law
Illustrating the difficulties to accept “mutual recognition” in the field of criminal law
Selja Imamovic (presenter) & Monica Claes
Addresses the idea of colliding spheres, illustrating that
the ECJ, while aware that it should consider ECHR (see also Article 6 TEU), centres om the CFREU
National courts may rely on the ECHR or the ECJ

13. OPEN QUESTIONS ON HUMAN RIGHTS V CRIMINAL ACTIVE
Would the protection of human rights such as “habeas corpus” (cf right of women to be free of violence in their home) require effective criminal prosecution? In which case human rights might require criminal law, and not be in tension with it (always), and rights of the accused might be in tension with rights of “victims”
Does criminal justice really require a “demos” which can then never be achieved at EU level?
Will a European area of security and justice including the UK after BREXIT be beyond the jurisdiction of the Court of Justice?
Is the triangular relationship between national courts and ECtHR and ECJ actually a good way to develop a European Human Rights system?

14. Towards a comprehensive Human Rights protection In Europe
Human Rights & European integration
Disintegration of Europe – in/external
Conflicting human rights
CJEU
ECtHR
National courts