BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT – JOINT CONCURRING OPINION
53
In spite of its relatively undefined nature, the criterion “manifestly
deficient” appears to establish a relatively low threshold, which is in marked
contrast to the supervision generally carried out under the European
Convention on Human Rights. Since the Convention establishes a minimum
level of protection (Article 53), any equivalence between it and the
Community's protection can only ever be in terms of the means, not of the
result. Moreover, it seems all the more difficult to accept that Community
law could be authorised, in the name of “equivalent protection”, to apply
standards that are less stringent than those of the European Convention on
Human Rights when we consider that the latter were formally drawn on in
the Charter of Fundamental Rights of the European Union, itself an integral
part of the Union's Treaty establishing a Constitution for Europe. Although
these texts have not (yet) come into force, Article II-112(3) of the Treaty
contains a rule whose moral weight would already appear to be binding on
any future legislative or judicial developments in European Union law: “In
so far as this Charter contains rights which correspond to rights guaranteed
by the Convention for the Protection of Human Rights and Fundamental
Freedoms, the meaning and scope of those rights shall be the same as those
laid down by the said Convention.”
Thus, in order to avoid any danger of double standards, it is necessary to
remain vigilant. If it were to materialise, such a danger would in turn create
different obligations for the Contracting Parties to the European Convention
on Human Rights, divided into those which had acceded to international
conventions and those which had not. In another context, that of
reservations, the Court has raised the possibility of inequality between
Contracting States and reiterated that this would “run counter to the aim, as
expressed in the Preamble to the Convention, to achieve greater unity in the
maintenance and further realisation of human rights” (Loizidou v. Turkey
(preliminary objections), judgment of 23 March 1995, Series A no. 310,
p. 28, § 77).
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