Wpływ orzecznictwa strasburskiego na standard ochrony prawczłowieka w Unii Europejskiej (z uwzględnieniem zmiantraktatowych z grudnia 2007 r.)

Abstract

The gap in the considered area of law is caused by the absence of explicit provision that the European Communities are bound by ECHR provisions. Despite that, the European Court of Justice has elaborateda concept of fundamental rights and refers to standards of the European Convention (by means of “general principles”)in his work in the area of jurisprudence. Additionally, the Charter of Fundamental Rights of the European Union (2000), which includes many provisions similar to the conventional ones, was advanced, in December 2007, to the EU primary law level. This creates a risk of inconsistence in adherence to the Strasbourg standard and of divergent interpretation of the ECHR provisions, depending on the place it is made – Strasbourg or Luxemburg. This makes it necessary to define relations between ECHR and the Charter. During the process of preparation of the EU Charter much attention was paid to the question of its horizontal clauses (Articles 52(3) and 53) in order to avoid “double standards” and to establish the European Convention as “the minimum standard” for the European Communities. Although the Charter itself does not refer to the Strasbourg Court’s case law (such references can be found in the Convent’s explanations about particular provisions of the Charter), its preamble reads: “The Charter reaffirms (…) the rights as they result (…) from the case law of (…) the European Court of Human Rights”. Additionally, according to Article 52(3), the meaning and scope of rights in the Charter shall be the same as corresponding rights of ECHR. Both the “meaning and scope” are described not only by the very text of the Convention, but by the complementary Court’s judgements, too. In effect, jurisprudence of the European Court of Human Rights determines the meaning and scope of the rights resulting from the Charter and interpretation of its relevant provisions should be exercised by the ECJ in line with the Strasbourg’s case law.