Naslov
Study on European Constitutional Courts as the Courts of Human Rights - Assessment, challenges, perspectives

Autori
Omejec, Jasna

Vrsta, podvrsta i kategorija rada
Poglavlja u knjigama, znanstveni

Knjiga
Global Constitutionalism and Multi-layered Protection of Human Rights – Exploring the Possibility of Establishing a Regional Human Rights Mechanism in Asia

Urednik/ci
SNU Asia-Pacific Law Institute

Izdavač
Constitutional Court of Korea

Grad
Seoul

Godina
2016

Raspon stranica
339-417

ISBN
978-89-499-4232-2

Ključne riječi
human rights protection ; European Court of Human Rights ; Court of Justice of the European Union ; national constitutional courts ; judicial dialogue ; judicial techniques for referring to the case-law of other courts

Sažetak
When speaking of European mechanisms for the protection of human rights, in the first place we refer to the judicial mechanism created within the Council of Europe - CoE (European Court of Human Rights in Strasbourg - ECtHR, established by the 1950 European Convention on Human Rights - ECHR), to the judicial mechanism created within the European Union – EU (Court of Justice of the European Union in Luxembourg - CJEU) and to the national constitutional courts of the Member States of the CoE and EU. This study analyses the three existing levels of judicial protection of human rights in Europe and their relationship, including their institutional, normative, jurisdictional and jurisprudential aspects. Due to its typical characteristics, the model of constitutional judiciary that exists in the Republic of Croatia has been chosen as an example of the model of judicial protection of human rights at the national level. As regards the functions of the national constitutional courts and the European courts in Strasbourg and Luxembourg to protect same fundamental rights at different levels, the the ECtHR and the CJEU may be regarded as European constitutional courts. Access to the ECtHR and CJEU as "European constitutional courts" in the field of fundamental rights facilitates the establishment of the necessary dialogue between these courts and the national constitutional courts. In these terms, Voßkuhle speaks of europäische Verfassungsgerichtsverbund, considering that the system of different levels of European and national constitutional courts "can be understood as a Verbund of constitutional courts – a system of multilevel cooperation." In this light, the author advocates "constitutional pluralism" as the best analytical paradigm for the European system for the protection of human rights and fundamental freedoms. Considering that the national and European legal norms, which regulate the same or similar rights, overlap one another, the judicial dialogue is becoming a key issue in the debate on European constitutional pluralism. However, between the two European courts and national constitutional courts the relations are still hierarchically set. Thus, the "transition from pyramid to network" through judicial dialogue in today’s circumstances is more wishful thinking than a real possibility. Moreover, in the situation when it is clear that there will be no EU accession to the ECHR in the near future, potential divergences between the law of the ECHR and EU law in the same matters will remain to exist thus making the tasks of the constitutional court judges very difficult when applying European law standards. In spite of all the problems, Wildhaber and Greer rightly pointed out that "any attempt to provide transnational legal protection for human rights in Europe is likely to be ineffective unless grounded in a full appreciation of the fact that, although a plurality of national and transnational legal and constitutional systems clearly exists, almost without exception they presuppose common constitutional fundamentals embodying democracy, the rule of law, and human rights" as exemplified by the national constitutions, ECHR and EU Charter of Fundamental Rights. These constitutional fundamentals are the European eternity clause to which the European Continent is truly devoted. This study on the judicial architecture of human rights protection in Europe attempts to contribute to the endeavours to open up a discussion within the Congress of the Association of Asian Constitutional Courts and Equivalent Institutions on the need of establishing an Asian court of human rights. It is also aimed at increasing awareness of the importance of the constitutional judiciary within Asia.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

Napomena
Studija je pripremljena u siječnju 2016. godine u okviru znanstveno istraživačkog projekta "Novi hrvatski pravni sustav" Pravnog fakulteta Sveučilišta u Zagrebu za 2016. godinu, prije no što je 1. rujna 2016. prestao djelovati Službenički sud (Civil Service Tribunal) EU.

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