In its judgment of 30 June 2005 in the case of Bosphorus Hava Yollari Turizm ve Ticaret Anonim ¸ Sirketi v. Ireland, the European Court of Human Rights for the first time actually addressed the issue of responsibility of States parties to the European Convention on Human Rights when they implement provisions of European Community law of the « first pillar » of the European Union. The act complained of was one of compliance with EC Regulation 990/93, which implemented United Nations Security Council resolution No. 820 (1993) adopting sanctions against the former Federal Republic of Yugoslavia (Serbia and Montenegro). According to the Court, when a State does no more than implement legal obligations flowing from its membership of an international organisation such as the European Community which is considered to protect fundamental rights in a manner « equivalent » to that for which the Convention provides, the presumption will be that the State has not departed from the requirements of the Convention. This presumption, which should apply in principle to all future cases of an analogous nature, is at odds with the specific features of the Convention’s system of protection of human rights and its relationship with the national systems of protection. The lack of other systems of protection of fundamental rights affected by the implementation of sanctions not only within the European Union but also within the United Nations and at the level of the legal system of the States parties to the Convention makes it compelling for the Court to revise its jurisprudence in favor of the principle of full judicial review. This shall not be theoretical or illusory but real and effective in the same way as the rights to be protected under the Convention.
L'Union europeenne et le respect des droits de l'homme dans la mise en oeuvre des sanctions devant la Cour europeenne des droits de l'homme
CIAMPI, Annalisa
2006-01-01
Abstract
In its judgment of 30 June 2005 in the case of Bosphorus Hava Yollari Turizm ve Ticaret Anonim ¸ Sirketi v. Ireland, the European Court of Human Rights for the first time actually addressed the issue of responsibility of States parties to the European Convention on Human Rights when they implement provisions of European Community law of the « first pillar » of the European Union. The act complained of was one of compliance with EC Regulation 990/93, which implemented United Nations Security Council resolution No. 820 (1993) adopting sanctions against the former Federal Republic of Yugoslavia (Serbia and Montenegro). According to the Court, when a State does no more than implement legal obligations flowing from its membership of an international organisation such as the European Community which is considered to protect fundamental rights in a manner « equivalent » to that for which the Convention provides, the presumption will be that the State has not departed from the requirements of the Convention. This presumption, which should apply in principle to all future cases of an analogous nature, is at odds with the specific features of the Convention’s system of protection of human rights and its relationship with the national systems of protection. The lack of other systems of protection of fundamental rights affected by the implementation of sanctions not only within the European Union but also within the United Nations and at the level of the legal system of the States parties to the Convention makes it compelling for the Court to revise its jurisprudence in favor of the principle of full judicial review. This shall not be theoretical or illusory but real and effective in the same way as the rights to be protected under the Convention.
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