The Development of Fundamental Rights Protection in EU Law - Assignment Example

EUROPEAN LAW Introduction Fundamental human rights are rights available to all persons by virtue of being human and they are non-derogable. The European Union is based on values of human dignity, equality, rule of law, and respect for human rights among others. The development of human rights was inspired by Universal Declaration of Human Rights of the United Nations. Thegrowth of human rights in the European Community has been influenced by international instruments, regional instruments like the EU Convention on Human Rights and rulings of the EU Court for Human Rights, and the national laws like the constitutions of member states. The European Convention on Human Rights In 1953, TheConvention came into force and its ratification became a condition for joining the Organisation. This convention has established The European Court of Human Rights which administers the implementation of the Convention. Its scope extends to Individuals bringing complaints of human rights violations after all possibilities of appeal have been exhausted in the member state. The rights under this convention are protected in European community law. Article 1 of the Convention requires all member states to protect of the rights and freedoms contained in the convention1.The convention consists of three parts. Section 1 contains the rights and freedoms which are found in Article 2 to 182, these articles are structured as general provisions, coupled with their exceptions or limitation to the basic right for example Article 2 provides for the protection of all human life by law, Article 2 (2) provides the exception to this basic right where certain uses of force may lead to death. Section II that include Articles 19 to 51 sets up the Court European Court Of Human Rights, its rules of operation, composition and jurisdiction.Section III contains various provisions3 European Court Of Human Rightscannot take up cases of its own motion. The court has jurisdiction to hear violations of the Convention and do so under Article 33 and Article 34, where the scope of the ECHR complaints procedures extends to inter-State complaints and individual complaints. Applications to the court need to meet certain requirementsif they are to admissible4; The complaint is lodged through a letter that should contain a brief summary of the complaint, an indication of how the convention has been breached, the remedies available and a list of official decisions related to the case and their dates5. The convention is binding to the national courts and the courts must apply the convention in protecting human rights as outlined in Article 13on effective remedies in case of violation by an authority, a person can complain to the European Court of Human Rights. Article 46 on the binding force and execution of judgments, the decisions of this court are binding on the States concerned and the execution of these judgments monitored6. The Court may deliver new judgments or uphold the decisions of the previous court. The courts judgments are final and cannot beappealed7. The remedies available consist of declaratory judgments that establish breaches of Convention rights and in some circumstances damages8. Article 47, 48 and 49 deal with advisory opinion of the court and its jurisdiction to offer the advisory opinion requested by the council of minister. The council may request the court for an advisory opinion on any legal questions concerning the interpretation of the convention and its protocols9. The Court’s competence is restricted to the rights contained within the ECHR and those protocols that the member states have chosen to ratify10. The court has constitutional jurisdiction on the member states where it can demand reforms of any domestic legislation. The court may use the pilot judgment 11 procedure to avoid case backlogs12.the procedure of a single court was laid down by protocol 11 with an aim of decreasing the duplication of work in the ECtHR and streamlining the court process13. The Charter that was proclaimed by three in Nice in 2000 and later amended and proclaimed again in 2007.It was merely a declaration of rights but became binding in 200914after theimplementation of the Treaty of Lisbon. The European Community (European Union) was created as an international organization with no rules of fundamental rights and freedoms. The protection of fundamental rights was left to the Court of Justice, which elaborated a number of rights derived from the general principles15 of Community law and the common constitutional traditions of the Member States.This was affirmed in the case of Erich v City of Ulm – Sozialamt16by the ECJ17. However, the absence of a unified document of fundamental rights was an issue of concern to all citizens and community. This led to the adoption of the ECHR after the Treaty of Lisbon (Article 6 TEU) and later the drafting of the charter. This Charter is divided into seven titles that include; human dignity, fundamental freedoms, equality, solidarity, citizens’ rights and justice18. These titles enshrine the personal, civic, political and, social and economic rights. The Charter is founded onalready established law19. The Charter applies to EU countries that adopt EU law.The EU is pastreproach in upholding fundamental human rights20. The Charter acts to reaffirms the already existing fundamental rights in member states but it has also added some rights that were not established before, for instance it has prohibited discrimination based on disability, age or sexual orientation21which is a wider scope than the ;previous one. It has also prohibited against reproductive human cloning22. The scope of the charter extends to both citizens and non-citizens in all the titles except title V. Non-citizens are granted the right of asylum amongst other rights23. The Charter is not binding onstates unless they implement EU law. Thisis enshrined in Article 51, which states that the provisions are addressed only to the EU institutions and, when they apply EU law. Article 52, provides for the limitations of the fundamental rights, in cases provided for by law, respects the principle of the rights in question, and is proportionate and necessary to protect the rights of others or the general interest. The EU Court of Justice also known as CJ has jurisdiction to review states compliance with EU law in their acts and the acts of their institutions24. In the CJ actions may be brought before the court by different parties, both institutions like the council or parliament or the European commission’s and individuals or member state. Any direct legality review is initiated before the CJ, while in indirect legality review it is initiated before Member State domestic courts and then referred to the CJ25. The CJ’s jurisdiction has been extended over areas of Freedom, Security and Justice. Asylum, immigration and civil law matters for the first time26. Articles 258–60 TFEU gives CJ jurisdiction to directly review the infringement actions and conformity to Union Law by the member states. The main role of the commission is monitoring and enforcing EU law in member states. It can pursue a breach in EU law on its own discretion for example failure to implement EU directives. The commissions failing however maybe that often in negotiated settlements it may favour member states to the detriment of an individual complain. The CJ has direct effect in domestic courts and hence no need to exhaust domestic remedies before the CJ has jurisdiction over any matter. In this aspect, there is greater access to the CJ than the ECtHR, which requires exhaustion of domestic remedies. The role of nationalcourts is to warrant the enforcement of EU human rights law. The national judges then have the discretion to refer matters affecting human rights to the CJ. The Lisbon Treaty reflects this role of national courts in Article 19(1) TEU.27The CJ in the case of Internationale Handelsgesellschaftm28in its ruling affirmed that fundamental rights were general principles of Community law. The European Parliament, under the Treaty, has been granted general locus standi before the CJ29. This was established during the Family Reunification Directive In its FRD Ruling, emphasized on the human rights obligations of the Member States when theyapply the FRD in individual cases. The right to family reunification has thus beenstrengthened within the EU legal system, in some respects granting higher protectionthan the ECHR.30 The parliament may question the legality of a legislation which may fail to protect or promote fundamental rights. The European Parliament, when acting as a human rights litigant or intervener, should use the full array of EU human rights, the Charter, general principles and relevant international standards. Some provisions in TFEU31contain specific rights.Article 15 TFEU, takes over a provision from the earlier Treaty of Nice and enshrines the right of every legal person in a Member State should have access to the documents of the Union’s institutions, bodies and agencies and Article 16 TFEU preserves the right to protection of personal data. Most rights in the Charter match the rights guaranteed by the ECHR with the modification and addition of others. The Charter explicitly provides that the meaning and scope of the Charter rights are similar to those laid down in the ECHR32. The protection granted by the Charter to certain rights, however, can be more extensive than that granted by the ECHR. The Charter also protects certain rights not covered by the ECHR.EU law is directly embedded in domestic systems, in contrast to ECHR law which is diffusely embedded.33The charter is a product of EU laws and subject to the interpretation of the ECJ while the Convention is an instrument of the council of Europe in Strasbourg and interpreted by the ECtHR34 . The main attributes of the ECHR was judging on member states’ compliance to mostly civil and political rights and not fundamental human rights, this later lead to the establishment of the Charter which covered fundamental rights and the concept of EC citizenship. Impact on the development of EU law The EU subscribes to the 1993 Vienna Convention that stresses on the universality, indivisibility and interdependence of all human rights. In this respect the EU has acted to broaden and strengthen the international human rights in its member states. Themember states acted to strengthen and educate the common citizen on the extensiveness and importance of understanding their rights35.Given the economic character of the EC the charter was established to promote human rights and social rights in order to supplement this economic and political nature, which led to theintroduction of the principles of democracy promotion and human rights. The EU has established itself globally in the development and provision of aid to other nations. This has been done mostly through the EU Commission36. The commission has developed an Impact Assessment Programmes on itself to measure the impacts of the organisations policies regarding the promotion and protection of human rights in the EU and beyond37.The EC is the first international institution to explicitly ban the death penalty.38This has been seen as a fundamental step in promoting human rights to all regardless of their status in the community. It has partnered with both Non-governmental and government to further the promotion of the non-derogable right to life as outlined in the International Covenant on Civil and Political Rights39.The EU Agency for Fundamental Rights was set up in 1997 to monitor Racism and Xenophobia. The agencyassesses the efficiency of existing measures, from policy to legislation at all levels. The adoption ofthe first binding international treaty40 that offers protection specifically for minorities has been a major milestone for the member states41. Conclusion The EU laws are diversified and various regional instruments have borrowed heavily on the Convention and the Charter; therefore the development of fundamental rights protection in EU law has been a major milestone in the promoting and protecting human rights all over the world. The ECHR and the Charter have put comprehensive fundamental rights that are provided for under international Human Rights Law and this leads to ease of theadvancement and protection of the rights enshrined due to the various mechanisms and institution put in place to monitor and implement the legislations providing for these rights. The EU laws have set a good example to other states in the implementations and protection of Human Rights. Bibliography: Alston P and Schutter O Monitoring fundamental rights in the EU the contribution of the Fundamental Rights Agency (Hart Publishing 2005). Anthony G,UK Public law and European law (Oxford 2002). Beco G,Non-judicial mechanisms for the implementation of human rights in European states. (Bruxelles: Bruylant 2010). Christoffersen J The European Court of Human Rights between Law and Politics. (Oxford University Press 2011). Council Directive (EC) 2003/86   on the Right to Family Reunification (2003) OJaccessed 22 December 2014. Dougan, M. The Treaty of Lisbon 2007: Winning minds, not hearts (2008) Common market law review 45(3) 617-703. Erich Stauder v City of Ulm (1969) 26 CJEC 419 (Judgment) Craig P, the Lisbon Treaty law, politics, and treaty reform(Oxford University Press 2013) European Commission, Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments (SEC 567, 2011) ch.1. European Court of Human Rights: The ECHR in 50 questions. (2013)   accessed 22 December 2014. Gänzle, Stefan, Sven G, and Davina M,the European Union and global development: enlightened superpower in the making?  (Palgrave Macmillan 2012). Great B and William CThe application of the EU Charter of Fundamental Rights in the UK: a state of confusion (Stationery Office 2014). Harris O and WarbrickLaw of the European Convention on Human Rights (Oxford University Press 2009). Helfer, R. ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime.’ (2008)19 EJIL 1. Internationale HandelsgesellschaftmbH v Einfuhr- und VorratsstellefürGetreide und Futtermittel [1970]11 ECJ 112. Jacobs, White and Ovey,the European Convention of Human Rights (Oxford University Press 2010). Kanstantsin D, Theodore K, Tobias L, Noreen OHuman Rights Law in Europe: The Influence, Overlaps and Contradictions of the EU and the ECHR (Routledge 2014). Lazarus, Liora and Costello, Cathryn and Ghanea, Nazila and Ziegler, Katja S., the Evolution of Fundamental Rights Charters and Case Law European Parliament (Directorate-General for Internal Policies 2011). accessed 22 December 2014. Mathisen L, The Impact of the Lisbon Treaty, in Particular Article 6 TEU, on Member States’ Obligations with Respect to the Protection of Fundamental Rights (2010). University of Luxembourg Law. Available at SSRN: http://ssrn.com/abstract=1650544. Mikelsone G, ‘The Binding Force of the Case Law of the European Court of Justice.’ (2013) 2 Jurisprudencija 469. Nifosi-Sutton I,’ Power of the European Court of Human Rights to Order Specific Non- Monetary Relief: A Critical Appraisal from a Right to Health Perspective’ (2010) The. Harv. Hum Rts51. Peers, Steve, and Angela W, the European Union Charter of Fundamental Rights (Hart publishing 2004). Woods, Lorna, and Philippa W,Steiner et Woods EU law (Oxford University Press. 2014). World Bank and Organisation for Economic Co-operation and Development. Integrating human rights into development: donor approaches, experiences, and challenges (World Bank 2013). Xavier Groussot and Laurent P, Fundamental Rights Protection in the European Union post Lisbon Treaty (2010) 173 Foundation Robert Schuman. Zwart and Tom,The admissibility of human rights petitions: the case law of the European Commission of Human Rights and the Human Rights Committee (Dordrecht 1994). . Read More