The Court of Justice of the European Union and the European Court of Human Rights Procedures: On the Quest for a more Coherent Approach in Human Rights Protection

Ćorić, Vesna (2019) The Court of Justice of the European Union and the European Court of Human Rights Procedures: On the Quest for a more Coherent Approach in Human Rights Protection. In: Common Law and Civil Law Today - Convergence and Divergence. Vernon Series in Law . Vernon Press. ISBN 978-1-62273-507-5

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Abstract

The objective of this paper is to analyze procedural divergences between the Court of Justice of the European Union and the European Court of Human Rights. As their inconsistent case law has already gained enough attention in the literature, the paper will primarily focus on other aspects of divergences manifested in different characteristics of available remedies. The key argument of the paper is that the procedural rules of both systems are inconsistent and need to be modified in order to contribute to the establishment of a coherent and efficient European human rights protection system, which would contain only legitimate limitations stemming from the pluralistic character of the human rights protection system and demands to provide an effective protection to individuals. The first section addresses the stance promoted by the International Law Commission on the fragmentation of international law and aims to apply it to the European field. The second section explores the scope and nature of the doctrine of equivalent protection to determine the specific level of procedural divergences between the two supranational courts which the European Court of Human Rights tolerates. The third section identifies the procedural divergences which exist between the European Court of Human Rights and the Court of Justice of the European Union and offers concrete proposals for the improvement of the existing rules as to enable the creation of more consistent frameworks regulating procedural aspects of human rights protection before these courts. The article concludes that the efficient, coherent and transparent European human rights protection system requires not only the removal of divergences in legal procedures but also the improved level of transparency of procedural rules applied by both courts. In addition to that, in the concluding part of the paper, it is proposed to change the existing approaches of the European Court of Human Rights and that of the International Law Commission respectively as to motivate the competent bodies of the European Union to improve the set of procedural remedies which are available before the Court of Justice of the European Union. While conducting the analysis, the author will use doctrinal methods. Primarily, the analysis will focus on the case law of two courts, relevant acts of the Council of Europe and the European Union as well as on documents of the International Law Commission. In addition, the author will rely on the available academic and expert literature in this field, which will provide additional grounds for critical assessment of procedural aspects of the operation of these courts and assist in opening up a debate for challenging the existing settings and practices.

Item Type:	Book Section
Subjects:	Ljudska i manjinska prava
Depositing User:	Aleksandra Višekruna
Date Deposited:	05 May 2022 10:54
Last Modified:	05 May 2022 14:48
URI:	http://ricl.iup.rs/id/eprint/411

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