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欧盟宪法草案对欧盟人权保护机制的影响 (The Draft Constitution and Human Rights Protection in European

时间:2006-11-26栏目:法学理论论文

nmark . 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 t

hat 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

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