The paradox of human rights protection in Europe: two courts, one goal?

Abstract

Two international courts, two different personalities, two different procedures. One of these courts, the Court of Justice of the European Union (ECJ), is the highest judicial body of the European Union. The other, the European Court of Human Rights (ECtHR), is the high court that handles issues arising under the European Convention of Human Rights.1 Already in 1953, in its draft treaty establishing a European Community, the ad hoc assembly of the European Coal and Steel Community provided for the integration of the substantive provisions of the ECHR in the Treaty. Yet, the Omission of a reference to fundamental rights in the ECSC and the EEC treaties was because, in the opinion of their authors, these were economic treaties with implications for the protection of fundamental rights. By contrast, when it came to founding a political community, the issue of protection of fundamental rights, returned to the forefront.2 In parallel to the debate on accession, it is well known that protection of fundamental rights developed mainly through the case law on general principles of the Court of Justice.3 As a result of its unwritten and casuistic nature, the protection of fundamental rights in the European Union has often been a source of inconsistencies.4