[ 周大勇 ]——(2004-1-2) / 已阅32592次

In this context, the ECHR serves as only an alternative source of knowledge, because based on the gradually increased legal resource- from the common principles applied to the member states to the legislation of EU institutions and the case-law developed by the ECJ itself as well as the synthetically Charter of Fundamental Rights, the ECJ has been enabled to deliberate and judge cases relying on sufficient recourses existed in EU body in connection with human rights without referring to the ECHR. In a similar case, Cinéthèque, The Court made a move forward: It expressed the normative statement about respect for human rights as a condition for lawfulness as an institutional duty: it is the duty of this Court to ensure the observance of fundamental rights in the field of Community law, as stated by the Court. In this way, the Court of Union gradually enables itself to break in the field of excising more power in human rights protection.

Based upon three aspects above, it is reasonable to be aware of, that before the draft Constitution for Europe materialized, it already existed two de facto mechanisms supervising and providing legal protection for human rights in the scope of European Union. One of them is the Council of Europe based in Strasbourg, which provides basic standard of human rights via the Convention and other guideline mechanisms , and oversees its enforcement with the judiciary body: the European Court of Human Rights (ECtHR hereafter). The other system, however, was gradually established during the progress of EU, which consists of two legislative bodies in Members States and Union level respectively, and the ECJ as the juridical instrument. The two systems, however, are not definitely distinguished with each other, but overlap and work in coordination. Because on the one hand, the fifteen European countries made commitment to respect the ECHR, and agreed to submit themselves to the jurisdiction of ECtHR in Strasbourg, in spite of that they have transferred some sovereign competence to Brussels. On the other hand, the ECtHR still plays a role as an effective co director of the ECHR legal regime, which maintain its unofficial partnership with the ECJ, whose own doctrine obliges it to honor the ECtHR whenever the Convention is relevant. Moreover, the EU is still lacking in ample legislation with respect to human rights. The main work of ECJ is to ensure that EU law is not interpreted and applied differently in Member State. However, the current circumstances might be changed according to the new Constitution for Europe.

3 the draft Constitution with the incorporated Charter

One of the most outstanding accomplishments of the draft Constitution is incorporation of the Charter of Fundamental Rights into the Constitution. The Charter, in its three years’ life, has obtained appreciations from all around though it has not yet legal binding force. In order to analyze the effect of the Charter on the EU human rights system, we first examine at first the Charter itself, then based on the analyze of legal status of the Charter, we concentrate on the relationship of the Charter in the Constitution and ECHR as well as the possible two courts system could be occur.

3.1 the content of the Charter
The Charter was designed as a political and legal objective of EU while the EU has entered a more resolutely political phase of integration. As the European Commission stated in its Communication of September 2000: “The Charter is a major milestone for Europe as a political force, which is evolving into an integrated area of freedom, security and justice, simply as a consequence of citizenship. It is an indispensable instrument of political and moral legitimacy, both for the citizens of Europe in relation to politicians, administrations and national powers and for economic and social operators.” Besides, it was considered that the list of rights contained in the Charter offers a more precise definition of the common values that must be respected in a wider environmental entity by means of establishing a common language on fundamental rights in EU.

The Charter presents better practical protection for fundamental rights in the EU. Most of these rights are indicated in both the case law of the ECJ and Article 6 of the Treaty on European Union. However, with the reference of the Charter, it is anticipated, the EU citizens need neither to consult the case law of the ECJ nor to read the articles of the complex treaties, in which the provisions refer to yet again other sources such as the ECHR and the constitutional traditions of Member States, in order to get a clear consciousness of their rights. Indeed, the articles in the Charter are grouped explicitly around six fundamental values: dignity, freedoms, equality, solidarity, citizenship and justice. While most of the rights listed are granted to everyone, some certain rights are granted to specific groups of people: i.e. children, workers Union citizens , Citizens of the Union and nationals of non-member countries residing in the Union

As we have mentioned in point 2, the Charter could be regard as a syncretism by means of absorbing rights from broader recourses besides the ECHR. Thus the content of the Charter is broader than ECHR provides, while the ECHR is restricted only to civil and political rights. For example the Article II 8 in the Charter protection of personal data is derived from Article 286 EC Treaty; Directive 95/46/EC of the European Parliament and the Council; Article 8 ECHR; Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data; Article II 10 2. Paragraph 2 right to conscientious objection might be developed from national constitutional traditions ; more typical is Article II-18 right to asylum comes from both the Article 63 EC Treaty and Protocols relating to the United Kingdom and Ireland annexed to the Treaty of Amsterdam and to Denmark . The same cases we can cite in all places from the Charter, which reflects the nature loose relation between the Charter and the ECHR and other documents of Council of Europe.

So according to the content of the Charter, it is sensible to summarize it as a self sufficient constitutional legal source providing adequate and complete protection for human rights.

3.2 the change of the legal characteristic of the Charter

The Charter was supposed to function as a symbol that would “counterbalance the euro and become part of the iconography of European integration and contribute both to the identity of and identification with Europe” when it was finally signed in the IGC in Nice. Since the Charter was not integrated into EU treaties, which led to non-binding force status. However, the Charter itself seems to have already paved a way to its incorporation into EU treaty as a constitutional “bill of rights”. Because it has created potential and provided a more solid basis for the commitment of the EU institutions to the protection of fundamental rights. This is the deficiency in EU Treaties, which should be complemented sooner or later . It is also unambiguous that the EU institutions, which have proclaimed the Charter, would commit themselves to respect the Charter.

As a result, then on the one hand the Charter made EU citizens better to understand the extent of their rights to defend against violations on human rights. So that they should be capable of referring to the Charter when they challenge any decision against their deserved fundamental rights taken by EU institutions or by Member States implementing EU law. On the other hand, the EU Institution should act on the Charter whenever they drew policies and settle disputes according to petition. As a logic consequence, the ECJ as judiciary part should also regard the Charter as a binding inter-institutional agreement. It was yet exactly the reality. Short after the proclamation of the Charter, the European courts published new case law established referred to the Charter. Until early 2002, the Advocates General of ECJ had referred to the Charter in 14 of the 23 cases they handled in relation to human rights .The Court of First Instance has also acted on the Charter. In a significant judgment of 3 May 2002 the Court even changed the rules governing individual access to the European courts, making reference to Article 47 of the Charter, which guarantees individuals whose rights are violated the right to an effective remedy before a tribunal.

In any case it is obvious from above discuss, though the declaratory character of the Charter does not have legal binding as far as the legislative status of the Charter is concerned, it has already unchallengeable impact. So the incorporation of the Charter is only a question of time and method. Now as the Charter enshrined in the Constitution, it become directly binding if the draft Constitution come into force after ratified by member states.

3.3 the difference from the Convention

The Union had currently no competence to adhere to the ECHR, while this competence is explicitly provided for in the draft Constitution, which stipulates that the Union will endeavor to adhere to the ECHR . It was declared, that as for the incorporation of the Charter in the Constitution, adhesion to the ECHR does not mean any change to the Union's powers as defined in the Constitution. The full incorporation of the Charter and adhesion are complementary rather than alternative steps, because the Charter does not function in competition with the ECHR. In this context Article II 52 of the draft Constitution makes clear, that the Charter respects the Convention, its protocols, and the case law developed by the European Court of Human Rights. The rule seems simple: the rights and liberties shared by the Convention and the Charter have the same meaning in both texts, even if the wording of the Charter is different, either in an attempt to update the Conventions text written in 1950 or to create a shorter and more readily comprehensible version.

However, it is all what the Charter and the draft Constitution seek? Most importantly, what highlights in the Charter such as respect for the principle of democracy, for human rights and fundamental freedoms is not a new pledge, but they why the Charter reaffirms explicitly and makes them perfectly, then upgrade them to constitutive rights? According to my view, the adhesion to ECHR seeks the minimum security of human rights, however there is no reason to allege that the interpretation respecting the Convention must be accurate for the EU, especially along with the growth of the Council of Europe that many countries of East Europe attended including Russia. After all, the status of Council of Europe becoming more pan-European after a astonish increase of the members after collapse of the socialism block after 1990. The criteria of being a member of Council of Europe is distinct from those of join the EU. If the Council of Europe could reach common understanding consistent with the human rights issues through its mechanism such as the committee of ministers, and achieve the Convention’s aims as provide remedies suitable for all the members under ECHR, then, such situation may be not the case today. Since it is likely undue that one can claim fair and working condition easily in large eastern European area where the unemployment rate is high up to almost 15%; it is also impossible to enforce some new set-up democratic countries to become conscious of the right of citizens to good administration as in the Charter states, on the contrary, too. So accordingly, the Charter avoids imposing limitations on rights that are unlimited in the Convention, as this would seriously lower the level of protection afforded by the Charter. Actually, as it states in the final report of working group of the draft Constitution:

The second sentence of Article 52 § 3 of the Charter serves to clarify that this article does not prevent more extensive protection already achieved or which may subsequently be provided for (i) in Union legislation and (ii) in some articles of the Charter which, although based on the ECHR, go beyond the ECHR because Union law acquis had already reached a higher level of protection (e.g., Article 47 on effective judicial protection, or Article 50 on the right not to be punished twice for the same offence). Thus, the guaranteed rights in the Charter reflect higher levels of protection in existing Union law.

Then the Charter further includes a standstill clause: Article II 53. It sets out to preserve the level of protection already afforded by Union, national and international law, in their respective spheres of application, as well as Member States’ constitutions and international agreements. This clause also makes specific reference to the Convention, stresses that the Charter cannot undermine rights already guaranteed by that agreement. Clearly, that means it is the Convention which supplies the minimum protection as the lowest standard but the aim of the Charter of EU is to provide fundamental rights protection at a higher level than the Convention, which focus depend on the enlargement and the improvement of the democracy institutionalization of EU itself.

In this context, as it states in the preamble of the Charter in the Constitution , the Union respects and interpreters the Charter in compliancy with the ECHR, could be only a scheme to recognize the current circumstance, while the principles of human rights protection derived from the Council of Europe have been general evolutes as constitutional traditions and international obligations common to the Member States.

3.4 possible consequences: two courts system

If the Constitution provides different protection of human rights for EU citizens, the question will left to the judicatory of EU: what a possible procedure could be for Courts of EU to refer questions relating to the Convention if the Constitution come into force, in which the accession to the Convention was expressed clearly in Article I-7. Though the accession would ensure a uniform minimum level of protection across Europe irrespective of the legal actor, it would bring the conflict of jurisprudence between two Courts- ECJ and ECtHR. It was suggested that the ECtHR could give its advisory opinion for the ECJ to apply. However, sensitive issues took place, for example: whether judges from countries outside the Union would hear cases relating to EU law. Especially as we mentioned, it is suspectable whether with the rapid expansion of Council of Europe membership in the east, there will be possibility that the standards of protection applied by ECtHR could be weakened. And what could deal with the appeal according to the rights provided by the Charter but not fall in scope of ECHR? It is now hard to give satisfactory answers to these questions, however, one thing is sure, that the Courts of EU should acquire more competence in this part.

Theoretically, the ECJ has played the same role as ECtHR in some cases. The ECtHR provides the ultimate remedy against relevant authority in case the applicant regards he is personally and directly the victim of a breach of one or more f these fundamental rights by one of the States when all domestic remedies has been exhausted. Alike, for several decades, the ECJ has also played an important role in ensuring the protection of fundamental rights inside the Union legal order, by developing a method for the review of performances of the Union institutions for human rights violations, despite lacking of sufficient relevant provisions in Treaties. Though the Court's fundamental rights jurisprudence was limited to guarantee that individuals are protected from violations of their fundamental rights resulting from acts of Union institutions, reviewing the case of individual against public institutions in member states was also inevitable in order to carry out the Union law. Such asserting would be more legitimate when two steps of judicial practice were carried out. Namely the ratification of a Union "bill of rights" and application of this "bill of rights" to the Member States. The two conditions however are expected to realize if the Constitution comes into force. Then, as the Commissioner António Vitorino believes, based upon a complementarily relation, The Charter will introduce a degree of healthy competition between the two main systems for protecting human rights on our continent, without introducing a schism between the European systems,” he argues. “The results of such competition can only be beneficial to stronger and better protection.” As I think, this is the ideal possibility. Nevertheless, even though, it will be a long-term, gradually progress, and the concrete view, lies still beyond our sight.

4 short conclusions

According to our discuss in this article, the draft Constitution contains a bill of rights for European Union through incorporation the Charter of Fundamental Rights, which provides a boarder and advanced fundamental rights for EU citizens. The Charter will obtain accordingly legal binding force if all Member States could ratify the Constitution, then it shall strengthen the competence of the EU institutions on protecting human rights. A mechanism of human rights protection within EU scope will materialize with legal sources from member states and EU levels under the light of the Charter in the Constitution. Corresponding, a compatible judiciary system could outline progressively while the Courts of Union are capable of playing the major role in protection of human rights within EU region in a long run and as a counterpart of ECtHR based on the gradually complete mechanism in EU.

Just before I finish the essay, news came that the EU Constitution Summit failed in EU leaders meeting in Brussels, because Poland and Spain reluctant to accept newly weighted voting rights in the draft text, which would greatly weaken the influence of the two countries. Although the Irish government, which will takes over the EU presidency in January 2004, has expressed concern over having the constitution debate spill over into its term, but since no major EU project has been pushed through within a single presidency’s six-month term before, a new round deal over the proposal of EU Constitution could be restart at least in the second half of 2004. It is a bad news but not certainly a dreadful thing as far as our topic is concerned, as we mentioned in this article, the form of a EU human rights protection system human rights protection will be only a question of time.

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