The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union: A Process of Mutual Enrichment

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Abstract

This article looks at the cross-fertilisation that exists between the case law of the European Court of Human Rights interpreting the European Convention on Human Rights and that of the European Court of Justice when it examines cases with a human rights element under the Charter of Fundamental Rights of the European Union. The Court in Strasbourg has looked to the provisions of the Charter to inform its interpretation of the Convention in cases concerning same-sex marriage, the rights of members of the civil service to sue their employers, the application of Article 6 to proceedings concerning interim measures and the application of the “more lenient penalty” rule in criminal law. At the same time the European Court of Justice has sought to apply the Charter with reference to the case law of the Strasbourg Court in the application of the principle of homogeneity set out in Article 52 § 3 of the Charter. The current practice is mutually enriching for both Courts, as well as for the level of human rights protection throughout Europe, and can be seen as a form of judicial dialogue that will undoubtedly be enhanced when accession of the European Union to the Convention comes about.