46
BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
considered to protect fundamental rights, as regards both the substantive
guarantees offered and the mechanisms controlling their observance, in a
manner which can be considered at least equivalent to that for which the
Convention provides (see M. & Co., cited above, p. 145, an approach with
which the parties and the European Commission agreed). By “equivalent”
the Court means “comparable”; any requirement that the organisation's
protection be “identical” could run counter to the interest of international
cooperation pursued (see paragraph 150 above). However, any such finding
of equivalence could not be final and would be susceptible to review in the
light of any relevant change in fundamental rights protection.
156. If such equivalent protection is considered to be provided by the
organisation, the presumption will be that a State has not departed from the
requirements of the Convention when it does no more than implement legal
obligations flowing from its membership of the organisation.
However, any such presumption can be rebutted if, in the circumstances
of a particular case, it is considered that the protection of Convention rights
was manifestly deficient. In such cases, the interest of international
cooperation would be outweighed by the Convention's role as a
“constitutional instrument of European public order” in the field of human
rights (see Loizidou v. Turkey (preliminary objections), judgment of
23 March 1995, Series A no. 310, pp. 27-28, § 75).
157. It remains the case that a State would be fully responsible under the
Convention for all acts falling outside its strict international legal
obligations. The numerous Convention cases cited by the applicant
company in paragraph 117 above confirm this. Each case (in particular,
Cantoni, p. 1626, § 26) concerned a review by this Court of the exercise of
State discretion for which Community law provided. Pellegrini is
distinguishable: the State responsibility issue raised by the enforcement of a
judgment not of a Contracting Party to the Convention (see Drozd and
Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240,
pp. 34-35, § 110) is not comparable to compliance with a legal obligation
emanating from an international organisation to which Contracting Parties
have transferred part of their sovereignty. Matthews can also be
distinguished: the acts for which the United Kingdom was found
responsible were “international instruments which were freely entered into”
by it (see paragraph 33 of that judgment). Kondova (see paragraph 76
above), also relied on by the applicant company, is consistent with a State's
Convention responsibility for acts not required by international legal
obligations.
158. Since the impugned measure constituted solely compliance by
Ireland with its legal obligations flowing from membership of the European
Community (see paragraph 148 above), the Court will now examine
whether a presumption arises that Ireland complied with the requirements of
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