The Charter of Fundamental Rights of the European Union as a factor affecting the ‘European consensus’ notion (the example of ‘due process’ rights)
The Charter of Fundamental Rights of the European Union as a factor affecting the ‘European consensus’ notion (the example of ‘due process’ rights)

Summary/Abstract: The Charter of Fundamental Rights of the European Union can be seen as an instrument to defend the EU legal order autonomy which facilitated the creation of the EU independent standards in the area of Human Rights protection. Nevertheless, the possible effects of the CFREU on the ‘European consensus’ notion have been largely understudied, although the European Union includes the majority of the European Convention on Human Rights signatories (namely 28 of 47). The aim of this paper is to explore the possible effects of the EU Charter on the notion of ‘European consensus’, given the incredible uncertainty surrounding this issue. The author proposes to use a group of the so-called ‘due process’ rights for a case study, due to their crucial importance for the Council of Europe and EU systems of Human Rights protection functioning. To illustrate the impact of the EU Charter ‘due process’ provisions on the ‘European consensus’ notion, an attempt is made to analyse the European Court of Human Rights jurisprudence employing the Charter as a criterion of the ‘European consensus’ with a special emphasis on Arts. 6, 7, 13 ECHR and Art. 4 of Protocol No. 7 ECHR. The claim of this paper is that both the corresponding EU Charter provisions (Arts. 47-50) and the EU Charter-based jurisprudence of the Court of Justice of the European Union are quite capable of (as a minimum) putting the European consensus under the question or (as a maximum) inspiring the European Court of Human Rights to follow the EU standards. Importantly, the ECtHR tends to apply the CFREU provisions and pertinent CJEU case-law not only to raise the level of Human Rights protection in accordance with Art. 52(3) CFREU, but also to transpose the EU-specific derogations from the European Convention standards on the basis of Art. 52(1) CFREU. Arguably, these trends may be explained by the ECtHR’s willingness to avoid the conflicts with European Law due to the growing EU Human Rights’ acquis which is being developed through the CJEU case-law after the Treaty of Lisbon entry into force.

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