Law: a bird's eye view

It’s said you have the right to have fundamental human rights. FRA’s Gabriel Toggenburg explains his firm belief in the EU justice system to protect those basic freedoms. For Gabriel, a person’s identity does not necessarily come from their nationality. He tells how being born in Germany with family roots and connections in Italy, France, the UK, Switzerland and Russia shaped those views.


Richard Miron: This is the Fundamentally Right podcast from the Fundamental Rights Agency. I'm Richard Miron. The FRA's part of the European Union, and it provides advice on people's rights as well as the obligations of the authorities to ensure that people are protected. The FRA's work is based upon the Charter of Fundamental Rights, which came into force 10 years ago in December 2009. In this series, we've been focusing on the personal stories of some of the people who work for the FRA. In their own words, they've been telling us about the experiences and memories that have led them to work in human rights and why the Charter is so important to them. In this episode, we're featuring Gabriel Toggenburg, who coordinates the FRA's activity on promoting the Charter. He's a lawyer by training and uses his expertise to advise on applying the Charter across the EU. Gabriel's extended family are drawn from across the European Union and beyond, and this, he says, has shaped his world view.

Gabriel Toggenburg: I grew up in a rather confused international family. So for me, it was rather natural to deal with international relations. The family of my father is an entirely Russian family, so both his father and his mother were Russians and they had to flee from Russia to Paris, to France. So they really experienced what it means when a state quite [all] of a sudden turns from a friend to a foe, and an enemy. That always impressed me that, that idea that they were then forced to work as a taxi driver in Paris because they were totally without any means because everything was taken by the state in Russia, etc.

And my mother's family is even more complex and diverse. Her mother was from the UK. Her father from a Swiss family, but the family already, since quite a while, is in the north of Italy, which again is a province that used to belong to Austria but then was given to Italy and the family back then was in politics, they also had to face that a state is not a given, right, that the state is a moving target. So it's something you better observe. But to me, nationality does not mean too much as an identity marker. So I was born in Germany, I grew up in Austria, but then when I turned 13, I moved to Italy. The family comes from everywhere, so it's rather the lower level, the local level where I derive my identity from. So I strongly feel about South Tyrol, which is a former Austrian territory now part of Italy. And I strongly feel about the European Union level of identity, but the national level is maybe less strong. At the same time, I think that states are extremely important. I don't believe in a European Union without states, or I don't believe in a Europe of the regions as it was preached in the 90s. I think the states are very important actors. I'm afraid I'm rather a person who has difficulties in taking decisions, I always have to ponder interests and legal science is about pondering interests and that I found very attractive.

Actually, I would consider myself not being a classical lawyer, but I see that there is a beauty attached to the law. Recently, the President of Austria was talking about the aesthetics and the beauty of the Constitution, which might sound a bit sort of difficult to understand, but I think there is a beauty. There is aesthetics to a constitution because it avoids conflict, it moderates, it gives security, it gives identity, so that there is an aesthetic to the law that I like.

Various personalities who very strongly influenced me, for instance, Professor Ferdinand Kinsky, or Professor Waldemar Hummer, who both with a lot of passion talked about international and European Union law. And I perceived that at that time as something which is very empowering because it gives you new horizons beyond your national contexts. So normally the lawyer is totally frozen into the national system. And if you then start talking about international law, about European Union law, you widen the perceptions, the standards. And it's something like, well, it gives you wings. It's like getting wings and seeing things from above. And that, I think is fascinating.

If you studied a case law, so the real work of judges, then you understand immediately that the law is no longer an abstract principle, but it is something that changes and impacts the real lives of real people.

That is fascinating, I think. Especially in the context of the Charter, it is important that one communicates to the judges what the Charter really means, because the Charter is an instrument that is easy to read but very difficult to understand. And with that discrepancy one has to live, one has to explain when does it apply, the Charter, and when not. And this is what the FRA tries to do.

Richard Miron: Gabriel, it’s interesting to hear about your background and in a way, how the idea of law for you underpins this thing that we call the European Union and the lives of the citizens within the Union.

Justice is obviously a fundamental part of all our rights. How can you apply justice? And also justice to some degree is regarded as a subjective concept rather than sort of something that can stand alone.

Gabriel Toggenburg: Yeah, if you look at the text of the Charter, you will see that what the Charter means with justice is mainly the judiciary, so how the courts function, how the procedures function. And that is extremely important. The judicial system of a state is a bit like a business card of a businessman. It tells you who you are. So show me the judges of a state and I can tell you who that state is. And secondly, it's now 70 years ago that Hannah Arendt, the famous political philosopher, coined the phrase: 'There is a right to have rights'. And that is important because the judiciary, the judges are those that actually allow human rights to at all have a justification, because without functioning judiciaries, without impartial judges, you don't get your rights. So there is a right to have rights and that is fulfilled by a functioning judiciary.

Richard Miron: How does the Charter directly address the issue of justice?

Gabriel Toggenburg: So this is the Title 6 of the Charter, which has this heading Justice. Sounds very wide, but actually it's about four concrete principles that limit really the scope of the discussion. So one is about providing remedies and fair trial in all procedures. So not only civil and criminal law, but all procedures. And that's the added value to other international documents. Then secondly, the presumption of innocence. So states are presuming that we are not criminals. First, we have to be tried and then the state is allowed to tell us whether we are innocent or not. Thirdly, whatever the state does must be based on legality. The law is the basis of everything. And then fourthly, the so-called 'ne bis in idem' principle, so that means that if you have done something wrong, you can be tried for that deed only once. It's not possible that one state sort of goes after you and then a second state would do the same.

So these are the four principles. Then of course, beyond the Charter, there is the overall rule of law principle, which is then, of course, opening a wide box of discussion. We see that currently with Poland, for instance, as you would be aware, where the Commission harshly criticised the reform of the judicial system. And we have this Article 2 of the EU treaty which defines the shared values of the Union and the Member States, and this Article 2 has an external and an internal dimension. The external dimension is that in Article 49, the EU Treaty says that whenever a state asserts that it wants to join the Union, it has first to make sure that it respects these values. And the internal dimension is in Article 7, which provides a sanctioning procedure for Member States that are repeatedly and substantially violating these values. And this procedure has so far been applied only twice. It is being applied vis-à-vis Poland and vis-à-vis  Hungary. And we have to see where this brings these two countries, but also the rest of the Union.

Richard Miron: How well are we seeing this in practice – the strength of an independent judiciary?

Gabriel Toggenburg: So the Union started tracking that performance in a so-called justice scoreboard. And there I think one sees positive as well as negative trends. But the fact that the European Union is tracking that tells us that something is a bit of a concern. And since I would say at least 2012, we see a backsliding in the European Union on certain rule of law standards. We see certain tendencies in certain Member States to politicise the courts. Especially high courts are of course, a target for certain political parties, because one knows that if one owns a constitutional court, one also owns the identity and the key decisions of a state. And that makes it so important to really make sure that the judiciary is totally impartial, totally neutral, because that also conveys to the citizen what the state is.

If citizens have the impression that the judiciary is no longer neutral, then they have the impression that the state is hijacked by predatory elites. And I think that is where the trust in the state is put at risk. If you look at the figures of who trusts the state, we have to be very concerned. So the latest figures tell us that on average, only a third of the people trust their governments and their parliaments, just a third. And of course, it's difficult to run a state if just one third of the people trust you. So that has to change and everyone has to work with the state, not against. The states are, to come back to our beginning, the states are the friends, they are not the foes. So we have to help them to establish judicial systems that are efficient that then can generate also trust in the population.

Richard Miron: What's the focus of your work at the moment that you're doing here in the FRA?

Gabriel Toggenburg: At the moment, I'm focusing on efforts to make the Charter better known in the 28 societies in the Member States, because we know very well how the Charter plays out at the EU level. That's easy, you simply look at the Commission documents, you look at the case law of the EU court in Luxembourg. But the national life, so to say, of the Charter, that's hidden, that's like a black box. No one tracks that apart from FRA. So every year we come out with a report that shows how courts, how government and how parliaments use the Charter at national level. And that is really interesting.

Richard Miron: What are the general trends that you're therefore seeing?

Gabriel Toggenburg: In general, the picture is rather bleak. So there's a lower awareness about the Charter in the governments, in the parliaments and in the courtrooms. Out of the three branches of government, clearly the courts are most advanced. So there the Charter is used, increasingly used, so that's a positive trend. Looking back at the last 10 years, we see that increasingly courts use the Charter. When it comes to governments, there's not so much of a positive trend, there seems to be a lack of interest to really invest politically in the Charter. There are hardly any policies that would promote Charter entitlements. And also in parliaments, we see a lack of procedures that would make sure that every piece of legislation is checked against the Charter of Fundamental Rights.

Richard Miron: How do you make something like the Charter increasingly well-known and better utilised?

Gabriel Toggenburg: In general, I think that the reply is education, education, education. But of course, the Union doesn't hold strong competence in the field of education, so we are left with the Member States. So what the Union can do is to co-fund training for judges. It can co-fund civil society initiatives. But the main responsibility is, of course, with the states. What the FRA does is that we try to increase awareness on how the Charter is implemented at national level. We make proposals also to the EU itself.

Like, for instance, we said recently that there should be an annual Charter discussion amongst the 28 ministers. So when they come together, they should discuss how the Charter is used at national level, or at least to have that in the working group of the Council, the so-called FREMP working group. There are many proposals how to change the situation, but of course, it's a long, long process.

Richard Miron: For you as a lawyer sitting here in the FRA in 2020, what is your outlook for the Charter in 10 years’ time? Do you think it's something that we will see as somewhat more implanted within the Member States and in the body of law within the Member States? What's your prediction, or your prognosis?

Gabriel Toggenburg: My prognosis would be positive because after 10 years, an international document is never fully integrated in the national legal system. These things take a long time. If you compare the situation as we have with the ECHR, the European Convention on Human Rights, the Council of Europe document, that also took ages until it really got traction. So I would say in 2030, we will see definitely a regular use of the Charter in the courtrooms. We will definitely see a more regular use of the Charter in parliaments. To which degree then the administration and the politicians are willing to refer to the Charter, that will depend on the political climate, and to which degree national politics is ready to refer to the European Region of Human Rights.

Richard Miron: Gabriel Toggenburg talking about the Charter of Fundamental Rights and the critically important aspect of justice. Gabriel's been one of seven voices in this series explaining how and why they came to work in human rights. They include stories of growing up behind the Iron Curtain, witnessing as a child the effects of conflict and division in Northern Ireland, and how working with refugees in the Netherlands helped shape one man's worldview and career. The Fundamentally Right podcast has been presented by me, Richard Miron and produced by Anouk Millet. We hope you've enjoyed it. This has been an Earshot Strategies production.