CYIL 2015

MONIKA FOREJTOVÁ CYIL 6 ȍ2015Ȏ with the Convention, while the States are and will remain responsible for fulfilling their Convention obligations.” 18 Such a diplomatically formulated opinion of one of the chief representatives of the court system attached to the Council of Europe cannot be taken lightly. The lack of trust expressed by the CJEU towards the Council of Europe system can, in response, result in lack of trust on the part of the Council of Europe towards the EU. It cannot be ruled out that through its tribunal, the Council of Europe will now focus more on the quality of protection of human rights in EU countries. A most radical emerging trend would be abandoning the Bospohorus 19 doctrine, i.e. the rebuttable assumption of equivalent quality and protection of human rights within the EU system and the Council of Europe system. This means that the CJEU’s conclusion regarding the adequacy of protection of human rights within the EU when compared to the quality of Strasbourg protection of human rights could well be reviewed in the near future. In light of the CJEU’s opinion 2/2013, the assumption of equal quality of human rights protection in the EU could be abandoned. That would, however, be an extreme development taking in account the fact that the 28 EU Member States hold a clear majority in the Parliamentary Assembly, regardless of the fact that even the Parliamentary Assembly is not authorized to interfere with the decisions of the Strasbourg court in any manner. Since the Bosphorus case, the Strasbourg court has not in any single case expressed any doubt as to the equality of protection of human rights by the EU. Nor has the Strasbourg court ever ruled that a violation of the European Convention on Human Rights would be attributable to the EU. It should, however, not be forgotten that the ECtHR decided applying the principle of self restraint and deference towards the EU Court of Justice as a gesture of amicus curiae . This double standard of judicial protection thus continues to be a fact criticized by some judges already in their concurring opinions when the Bosphorus doctrine was first introduced. 20 Some of them pointed out that there would be a risk of inequality between the Convention states and stressed that such state would contradict the goal expressed in the Preamble of the Convention, namely increased unity when upholding and further implementing human rights. The CJEU’s opinion from 2014 thus greatly contributed towards the current uncertainty regarding a genuine and shared interest of European countries to unify the system of human rights protection. The CJEU’s opinion expresses more an interest to maintain the autonomy and supremacy of EU law that to unify the protection of human rights in Europe. In its opinion, the Court of Justice applied not only the principle of absolute supremacy of EU law, including the Charter of Fundamental 18 Opening speech President Dean Spielmann Strasbourg, 30 January 2015, at 19 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, ECtHR decision dated 30. 6. 2005 application no. 45036/98. 20 Concurring opinion by judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki.

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