Human Rights and the National Judge: His Constitution; The European Union; The European Convention

Abstract

Starting from the perspective of a national (Irish) judge, the author examines the complex system of human rights’ protection guaranteed by national law, EU law and the European Convention. Human rights protection at these different levels is illustrated by a rich selection of case-law all originating from Ireland. At the first level, the Irish Constitution already grants a high level of judicial protection on the basis of an extensive catalogue of fundamental rights. In addition, the Irish courts have to apply the European Convention and the decisions of the European Court of Human Rights on the basis of the Human Rights Act of 2003 which however ranks below the Constitution. This is different for EU law in general and for the EU treaties in particular, including their reference to human rights protection and also regarding the Charter of Fundamental Rights which is now given primary law effect. Courts have to face a particular dilemma when applying decisions of United Nations organs as implemented in EU or national law which may be in conflict with human rights.