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

of the Charter and adhesion are complementary rather than alternative steps, because the Charter does not function in competition with the ECHR. In this context Article II 52 of the draft Constitution makes clear, that the Charter respects the Convention, its protocols, and the case law developed by the European Court of Human Rights. The rule seems simple: the rights and liberties shared by the Convention and the Charter have the same meaning in both texts, even if the wording of the Charter is different, either in an attempt to update the Conventions text written in 1950 or to create a shorter and more readily comprehensible version.

However, it is all what the Charter and the draft Constitution seek? Most importantly, what highlights in the Charter such as respect for the principle of democracy, for human rights and fundamental freedoms is not a new pledge, but they why the Charter reaffirms explicitly and makes them perfectly, then upgrade them to constitutive rights? According to my view, the adhesion to ECHR seeks the minimum security of human rights, however there is no reason to allege that the interpretation respecting the Convention must be accurate for the EU, especially along with the growth of the Council of Europe that many countries of East Europe attended including Russia. After all, the status of Council of Europe becoming more pan-European after a astonish increase of the members after collapse of the socialism block after 1990. The criteria of being a member of Council of Europe is distinct from those of join the EU. If the Council of Europe could reach common understanding consistent with the human rights issues through its mechanism such as the committee of ministers, and achieve the Convention’s aims as provide remedies suitable for all the members under ECHR, then, such situation may be not the case today. Since it is likely undue that one can claim fair and working condition easily in large eastern European area where the unemployment rate is high up to almost 15%; it is also impossible to enforce some new set-up democratic countries to become conscious of the right of citizens to good administration as in the Charter states, on the contrary, too. So accordingly, the Charter avoids imposing limitations on rights that are unlimited in the Convention, as this would seriously lower the level of protection afforded by the Charter. Actually, as it states in the final report of working group of the draft Constitution:

The second sentence of Article 52 § 3 of the Charter serves to clarify that this article does not prevent more extensive protection already achieved or which may subsequently be provided for (i) in Union legislation and (ii) in some articles of the Charter which, although based on the ECHR, go beyond the ECHR because Union law acquis had already reached a higher level of protection (e.g., Article 47 on effective judicial protection, or Article 50 on the right not to be punished twic

e for the same offence). Thus, the guaranteed rights in the Charter reflect higher levels of protection in existing Union law.

Then the Charter further includes a standstill clause: Article II 53. It sets out to preserve the level of protection already afforded by Union, national and international law, in their respective spheres of application, as well as Member States’ constitutions and international agreements. This clause also makes spe

《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(第8页)》