The Charter and the European Court of Human Rights
The delay with which the ECJ has started using the Charter is almost paradoxical70 as it was preceded in doing so by its Strasbourg counterpart.
The latter referred to the Charter in the 2002 Goodwin v. the United Kingdom case,71 where it listed it amongst the international instruments in the field of human rights protection.72 The Charter has thus not been mentioned in the factual, but in the operational part of the decision.
More precisely, Art. 9 CFR was used as a counterpoint to Art. 12 ECHR in defining the scope of the right to a family.73 The Court affirmed that the ECHR refers to men and women, whereas no such specification can be found in the Charter.
This difference became the fundamental argument to affirm that the law in force in the United Kingdom violated Art. 12 ECHR because it did not allow transsexuals to marry.
In the following Bosphorus case,74 the Charter was mentioned amongst the relevant provisions concerning fundamental rights, after Art. 6 of the Amsterdam Treaty.
The ECtHR affirmed that the Charter is “not fully binding”, but acknowledged its incorporation into primary law as Part II of the Treaty Establishing a Constitution for Europe, signed on 29th October 2004, although the latter was still “not in force”.
This left the question of the binding force of the Charter open to speculation.75 And yet, the European Court did not take into consideration the legal value of the Charter in Sørensen v. Danemark et Rasmussen v. Danemark76 and more recently in Saadi v. The United Kingdom.77
The Court included the Charter amongst the relevant international law documents and, more precisely, amongst the most recent European Union instruments.78
The Vilho Eskelinen and others v. Finland decision79 should also be recalled. Here, the ECtHR affirmed that the Charter amounted to a codification of the existing case-law of the ECJ.
The CFR had the important function of making more visible rights which the Court of Justice has guaranteed for the past decades. The Vilho case is also interesting because the European Court took into consideration the Praesidium Explanations annexed to the document80 estimating that they constitute a “valuable tool of interpretation intended to clarify the provisions of the Charter”.81
Pursuant to the latter it can be argued that Art. 47 of the Charter is not confined to civil rights and obligations or to criminal matters within the meaning of Art. 6 ECHR. Hence, the Court of Strasbourg was able to conclude that, in principle, in the EU the scope of judicial control is potentially wider, the Luxembourg judges being able to rely on Art. 6 and 13 ECHR, as well as on Art. 47 CFR. For the Strasbourg Court the Charter – as well as the perspective of a future accession of the EU to the ECHR - confirms the equivalence of the standard of protection of human rights guaranteed under the Convention and within the EU legal order. Moreover, in Demir and Baykare v. Turkey,82 the Court of Strasbourg expressly acknowledged that in cases such as Goodwin, Vilho and Sørensen it was guided by the CFR, despite the fact that this instrument was not binding.
Lastly, it should be noted that only seldom the Charter was referred to in a dissenting opinion83 or in a joint concurring opinion84 thereby confirming the willingness of the Strasbourg Court to take the Charter seriously. In this regard the separate Opinion of Judge Zagrebelsky in Demir and Baykara v. Turkey is indicative of this stance: the Court has thus expressly departed from its case-law, taking into account the perceptible evolution in such matters, in both international law and domestic legal systems. In reality, the new and recent fact that may be regarded as indicating na evolution internationally appears to be only the proclamation (in 2000) of the European Union’s Charter of Fundamental Rights.85
70. G.F. Ferrari, L. Montanari, ‘I diritti nel progetto di Costituzione europea’, (2003) Diritto Pubblico Comunitario ed Europeo 1716.
71. Appl. No 28957/95, Goodwin v. The United Kingdom, (2002) 35 EHRR.
72. Ibid., para 58.
73. V. Monetti, ‘Sentenze della Corte di Strasburgo’, in G. Bisogni, G. Bronzini, V. Piccone (eds.), I giudici e la Carta dei diritti dell’Unione europea (Chimienti 2006) 115. On the different wording of the rights, see Scoppola v. Italy (Appl. No 10249/03, accessible at www.echr.coe.int). In this judgment the Court affirmed that: “the wording of Article 49 § 1 of the Charter differs – and this can only be deliberate (see, mutatis mutandis, Christine Goodwin, cited above, § 100 in fine) – from that of Article 7 ofthe Convention”. This does not impede to conclude that there is an equivalent level of protection.
74. Bosphorus v. Ireland, n. 6 above.
75. Appl. No 73049/01, Anheuser-Busch inc. v. Portugal, (2007) accessible at www.echr.coe.int. In this case the Court quoted the Charter as a source of EC law.
76. Appl. Nos 52562/99 and 52620/99, Sørensen v. Denmark and Rasmussen v. Denmark,
(2006) accessible at www.echr.coe.int.
77. Appl. No 13229/03, Saadi v. The United Kingdom, (2008) accessible at www.echr.coe.int
78. Appl. No 55759/07, Maresti v. Croatia, (2009) accessible at www.echr.coe.int. See also Appl. No 34503/97, Demir and Baykara v. Turkey, (2008) accessible at www.echr.coe.int, para 150. In the recent Micallef v. Malta (Appl. No 17056/06) of 15 October 2009, the Court of Strasbourg mentioned the CFR as the main text of reference for the European Union legal order underlining the different wording of the right to a fair trial contanined in Article 47 of the CFR with respect to that of Article 6 of the European Convention of Human Rights. See Appl. No 14939/03, Zolotukhin v. Russia, (2009) unreported. See also Appl. No 7925/04, Pishchalnikov v. Russia, (2009), unreported and Appl. No 36391/02, Salduz v. Turkey, (2009), also unreported, in which the Court referred to Articles 48 and 52 of the CFR.
79.Vilho Eskelinen and Others v. Finland (2007), accessible at www.echr.coe.int, para 30.
80. Cf. Section 2.
81.Vilho Eskelinen and Others v. Finland, n. 79 above, para 30.
82. Appl. No 34503/97, Demir and Baykara v. Turkey, (2008) accessible at www.echr.coe.int , para 105.
83. Appl. No 53924/00, Vo. v. France, (2004) Reports of Judgments and Decisions – VIII.
84. Appl. No 58675/00, Martinie v. France, (2006) accessible at www.echr.coe.int.
85. Demir and Baykara v. Turkey, n. 82 above.