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The 3rd of all EU-r rights: Integrity and how the Charter contributes

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28 January 2020
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The 3rd of all EU-r rights: Integrity and how the Charter contributes - © Courtesy of Miloladesign

Human beings are like antique amphorae. Each one is unique. Each one should be handled with care. Violence leaves eternal marks and irrevocable damage. An amphora´s internal and external dimensions cannot be isolated from each other. This is why Article 3 of the Charter not only protects the physical, but also the “mental integrity” of all human beings.

In a second paragraph the right to integrity establishes four key points in the areas of medicine and biology, which are gaining increasing importance in a time when genetic manipulation and brain-computer-interfaces are no longer science-fiction fantasies but real options. These 4 key points are:

  • free and informed consent of the person concerned;
  • prohibition of eugenic practices, in particular those which target the selection of specific persons;
  • prohibition on making the human body and parts thereof, a source of financial gain;
  • prohibition of the reproductive cloning of human beings.

The Charter right in action

Take for example this case decided by a court in the Netherlands in 2018.[1] An Iranian national sought asylum in the Netherlands. He claimed he would run serious risks in Iran as he was a Christian and had a Christian tattoo on his hand. However, the Dutch government and the court were not convinced that he really was a converted Christian. The Secretary of State expressed the opinion that the Iranian man would not run major risks if he were to be sent back to Iran as he would be able to hide his hand, use make-up or have the tattoo removed. The Iranian man opposed this by saying that he would not be able to hide his hand, that make-up would not cover the tattoo and that being forced to have one’s tattoo removed is contrary to the principle of physical integrity, laid down in Article 3 of the Charter. The Dutch Court agreed that the right to integrity as laid down in the Charter had not sufficiently been taken into account. The appeal of the Iranian man was successful.

Two examples of how EU legislation protects integrity
  • When determining whether victims of terrorist crimes should profit from protective measures in the course of criminal proceedings, particular attention should be paid to “the need to protect the dignity and physical integrity of victims” (Art. 25 of the Directive on combating terrorism EU 2017/541).
  • A clinical trial may be conducted only when the test subject has given “informed consent” and when their “rights to physical and mental integrity … are safeguarded” (Art 28 (1) of the regulation EU 2014/536 on clinical trials on medicinal products for human use).

What do the constitutions of the Member States say?

Surprisingly, few EU Member States enshrine in their constitution an explicit right to integrity. Two thirds of the constitutions do not acknowledge the concept. In 9 constitutions integrity is mentioned. Both dimensions of integrity – physical and mental  – are explicitly enshrined in a handful of constitutions, namely in those of Belgium, Portugal, Romania, Slovenia and Spain.[2]

The very strong focus on the area of medicine that we find in Article 3 of the EU Charter is absent from most constitutions. Two men were in this regard the driving forces when drafting the Charter, namely the representatives of the French and Italian governments: Mr. Braibant and Mr. Rodotà.[3] Only the constitutions of Bulgaria, Croatia, Estonia, Hungary, Lithuania, Poland and Slovenia contain a prohibition of medical and scientific “experimentation” without consent of the respective person.[4]

Additional points worth being mentioned are:

  • Some constitutions like the Czech, Irish and Greek constitutions use concepts such as personal honour, good reputation or name which obviously aim at protecting a certain dimension of dignity[5]
  • The constitution of Hungary prohibits human cloning and the constitutions of Greece and Portugal protect “genetic identity”[6]
  • Children profit from a special protection under the Belgium constitution: their “moral, physical, mental and sexual integrity” is to be respected[7]
  • The Swedish constitution demonstrates very explicit sensitivity in the context of certain invasions of our privacy, namely, body searches, the examination of mail and confidential correspondence or the recording of our telephone conversations.[8] This reminds us that many aspects of integrity can be protected under other rights such as data protection or the right to privacy.

So what?

The right to integrity is not by coincidence placed between the right to dignity (Article 1) and the prohibition of torture (Article 4). It combines the mental with the physical dimensions of being a human and protects both. Stalking, mobbing, the targeted manipulation of one’s personality and also the exposure to major environmental pollution might result in the violation of integrity.

The Charter adds value especially through its strong focus on the area of bio-medicine in Article 3. Well over a third of the EU Member States have not (yet) ratified the Council of Europe’s Convention on bio-medicine. The Charter draws clear lines for no-gos (reproductive cloning) while leaving much to the discretion of the Member States (e.g. therapeutic cloning). Interested in knowing more? Well, here you are: ‘All EU-r rights, stay tuned!

Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.

[1] Decision of the Council of State in the case 1802, 31.5.2018

[2] Art. 22 bis of the Belgium constitution, Art. 25 (1) of the Portuguese constitution, Art. 22 (1) of the Romanian constitution, Art. 35 of the Slovenian constitution, Art. 15 of the Spanish constitution. Integrity in general or physical integrity only is mentioned in Art. 7 of the Cypriot constitution, Section 7 of the Finnish constitution, Art. 2 (1) of the German constitution and Art 16 (1) of the Slovakian constitution.

[3]Martin Borowsky (2019), Art. 3, in Jürgen Meyer (ed.), Charter der Grundrechte, at p. 179. Guy Braibant died on 25 May 2008, Professor Stefano Rodotà, who at end of his long career also served as the Chair of the Scientific Committee of FRA, died on 23 June 2017.

[4] See Art. 29 of the Bulgarian constitution, Art. 23(1) of the Croatian constitution, Art. 18 of the Estonian constitution, Art. III(1) of the Hungarian constitution, Art. 21 of the Lithuanian constitution, Art. 39 of the Polish constitution, Art. 18 of the Slovenian constitution

[5] Art. 10(1) of the Czech constitution, Art. 5(2) of the Greek constitution, Art. 40(3) of the Irish constitution.

[6] Art. III (2) of the Hungarian constitution and Art. 5(5) of the Greek constitution.

[7] Art. 22bis of the Belgium constitution.

[8] Art. 6 of the Swedish constitution.

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