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people and capital. The Council of Europe, on the other hand, has been building its
sovereign position of European guardian of human rights for decades.
Given the current state of things, it is not possible for the Luxembourg-based
CJEU to overtake and substitute the ECtHR when it comes to the scope and quality
of human rights protection in Europe. First of all, the EU system lacks means of
protection of human rights similar to the possibility of filing an individual application
to the European Court of Human Rights.30 Secondly, it is often the EUMember States
themselves, who explicitly violate the Convention. For example, repeated violation
of Article 3 of the Convention (prohibition of torture, inhuman and degrading
treatment) occurred in 2014. Just in 2014 the ECtHR found 111 violations of
Article 3 of the Convention, 73 violations of Article 5 of the Convention (right to
liberty and security) and 183 violations of Article 6 of the Convention (right to a fair
trial); in all cases those were violations by EU Member States.31 Also this discrepancy
in European human rights protection was to be solved by the failed accession of the
EU to the Convention.32
30 Article 34 ECHR.
31 Violation by Article and by State-
32 BESSELINK, L. The European Union and the European Convention on Human Rights after Lisbon
Treaty: From Bosphorus sovereign immunity to full scrutiny? Available at SSRN:
abstract=1132788. MARGARITIS, K. G. European Union accession to the European Convention on
Human rights: an institutional „marriage“. Human rights & Human welfare working papers. Http://