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The European Union Charter of Fundamental Rights Vs. the Council of Europe Convention on Human Rights and Fundamental Freedoms – a Comparison

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The European Union Charter of Fundamental Rights Vs. the Council of Europe Convention on Human Rights and Fundamental Freedoms – a Comparison Fordham International Law Journal Volume 40, Issue 4 2017 Article 1 The European Union Charter of Fundamental Rights vs. The Council of Europe Convention On Human Rights And Fundamental Freedoms – A Comparison Frank Emmert∗ Chandler Piche? Carneyy ∗ y Copyright c 2017 by the authors. Fordham International Law Journal is produced by The Berke- ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj ARTICLE THE EUROPEAN UNION CHARTER OF FUNDAMENTAL RIGHTS VS. THE COUNCIL OF EUROPE CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS – A COMPARISON Frank Emmert* & Chandler Piché Carney** I. INTRODUCTION ............................................................... 1051 II. HISTORY AND EVOLUTION OF THE EUROPEAN CONVENTION SYSTEM ........................................... 1054 A. Background .............................................................. 1054 B. Widening of the Convention via Geographic Expansion ............................................................... 1057 C. Evolution of the Convention via Protocols .............. 1061 1. 1950s to 1970s .................................................... 1062 2. 1980s to 1990s .................................................... 1063 3. 2000s to Present ................................................. 1064 D. Deepening of the Convention via Case Law ........... 1066 1. Article 1 Obligation to Respect Human Rights ............................................................... 1069 Al-Skeini and Others v. United Kingdom (2011) ......................................................... 1069 * Prof. Dr. Frank Emmert, LL.M., MCIArb, is the John S. Grimes Professor of Law and Director of the Center for International and Comparative Law at the Indiana University Robert H. McKinney School of Law in Indianapolis. For more information on Prof. Emmert see FRANK EMMERT, INDIANA UNIVERSITY ROBERT H. MCKINNEY SCHOOL OF LAW, http://mckinneylaw.iu.edu/faculty-staff/profile.cfm?Id=166 (last visited Apr. 16, 2017). Most of his publications can be downloaded free of charge at https://www.researchgate.net/pro- file/Frank_Emmert2. ** Chandler Carney is a Juris Doctor recipient and Freeborn Civil and Human Rights Fellow from the Indiana University Robert H. McKinney School of Law in Indianapolis; and former EMERGE Scholar at the University of West Florida in Pensacola. The authors would like to thank the editors at the Fordham International Law Journal for their support and patience during our work on this article. The usual disclaimers apply. 1047 1048 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 40:4 El-Masri v. The Former Yugoslav Republic of Macedonia (2012) ...................................... 1069 2. Article 3 Prohibition of Torture ......................... 1070 Ireland v. United Kingdom (1978) ................... 1070 Soering v. United Kingdom (1989).................. 1072 3. Article 8 Right to Respect for Private and Family Life ................................................................... 1075 López Ostra v. Spain (1994) ............................ 1075 4. Articles 9, 10, 11 ECHR and Article 3 of Protocol No. 1 – Political Activities, Interferences “Necessary in a Democratic Society” and Meeting a “Pressing Social Need” ................................. 1077 Refah Partisi v. Turkey (2003) ......................... 1077 5. The Margin of Appreciation ............................... 1079 Handyside v. United Kingdom (1976) ............. 1079 6. The Pilot Judgment Procedure ........................... 1082 Broniowski v. Poland (2005) ........................... 1082 III. HISTORY AND EVOLUTION OF HUMAN RIGHTS PROTECTION IN THE EUROPEAN UNION SYSTEM ...................................................................... 1085 A. From Treaties to Constitutional Order ..................... 1085 1. Erga Omnes Effect and Retroactivity of ECJ Judgments ........................................................ 1093 The German Beer Purity Law, Case 178/84 .... 1093 2. The Direct Effect or Self-Executing Nature of EU Law .................................................................. 1095 Van Gend en Loos, Case 26/62 ........................ 1095 3. Supremacy of EU Law Over National Law ....... 1096 Costa v. ENEL, Case 6/64 ............................... 1096 B. A Constitution Without a Bill of Rights .................. 1099 C. The Invention of Fundamental Rights in the EU Legal Order ...................................................................... 1101 1. Human Rights as General Principles of EU Law .................................................................. 1101 Internationale Handelsgesellschaft, Case 11/70 .......................................................... 1101 2. Human Rights Found in Treaties Ratified by the Member States ................................................. 1103 2017] ECHR AND EU CHARTER COMPARED 1049 Nold, Case 4/73 ................................................ 1103 3. Human Rights Protection Inspired by the ECHR ............................................................... 1104 Hauer, Case 44/79 ............................................ 1104 4. Acceptance of Supremacy and Direct Effect by the National Supreme Courts ................................. 1105 5. National Authorities Bound by EU Human Rights? ............................................................. 1107 Wachauf, Case 5/88 ......................................... 1107 D. The Codification of Fundamental Rights in the EU Charter .................................................................... 1109 IV. MY DREAMS ARE YOUR NIGHTMARES – THE STRENGTHS AND WEAKNESSES OF EACH OF THE TWO SUPRANATIONAL SYSTEMS OF PROTECTION OF HUMAN RIGHTS IN EUROPE .. 1116 A. Criticism of the ECHR and the European Court of Human Rights ......................................................... 1117 1. The Case-Load Problem ..................................... 1119 2. Justice Delayed Is Justice Denied ...................... 1121 3. Docket Control, Strasbourg Style ....................... 1124 4. Discouraging Applications via Low-Balling of Compensation .................................................. 1129 B. Criticism of the EU System of Human Rights Protection and the European Court of Justice ........ 1131 1. Too Much Protection? Accusations of Judicial Activism ........................................................... 1131 2. Too Little Protection? Accusations of Denial of Justice ............................................................... 1134 V. SOME MODEST AND SOME NOT SO MODEST PROPOSALS FOR REFORM ..................................... 1141 A. Strengthening the European Convention System .... 1142 1. Ongoing Discussions and Existing Proposals .... 1143 Recommendation No. R (2000) 2 on the re- examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights ............. 1143 Resolution ResDH(2001)66 States’ obligation to co-operate with the European Court of Human Rights ......................................................... 1144 1050 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 40:4 Recommendation Rec(2002)13 on the publication and dissemination in the Member States of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights .............................. 1144 Resolution Res(2002)58 on the publication and dissemination of the case-law of the European Court of Human Rights .............................. 1146 Resolution Res(2002)59 concerning the practice in respect of friendly settlements ................... 1146 Resolution res(2004)3 on judgments revealing an underlying systemic problem ..................... 1146 Recommendation Rec(2004)4 on the European Convention on Human Rights in university education and professional training ........... 1147 Recommendation Rec(2004)5 on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights ............................................ 1148 Recommendation Rec(2004)6 on the improvement of domestic remedies ................................. 1148 Recommendation CM/Rec(2008)2 of the Committee of Ministers to member states on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights ......................................................... 1149 Recommendation CM/Rec(2010)3 of the Committee of Ministers to member states on effective remedies for excessive length of proceedings ................................................ 1150 Resolution CM/Res(2010)25 on member states’ duty to respect and protect the right of individual application to the European Court of Human Rights ............................................ 1152 2. Some Additional Proposals for Consideration ... 1157 B. Strengthening the EU System .................................. 1162 1. Accession to the European Convention on Human Rights and Fundamental Freedoms? ................ 1162 2017] ECHR AND EU CHARTER COMPARED 1051 2. Application of the Charter to All Acts of the Member States? ................................................ 1170 VI. CONCLUSION ................................................................. 1173 I. INTRODUCTION While some regions of the world still do not have supranational structures for the protection of human rights and fundamental free- doms, Europe has two systems that are competing on some levels and complementary on others.1 The European Court of Human Rights in Strasbourg is the guardian
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