L’Europe à la poursuite des droits fondamentaux

• Autores: Bertrand Favreau
• Localización: Eucrim: the European Criminal Law Associations' fórum, ISSN 1862-6947, Nº. 2, 2016 (Ejemplar dedicado a: The costs of non-Europe), págs. 104-109
• Idioma: francés
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• Resumen

  • Where does the protection of human and fundamental rights stand in Europe, particularly in the European Union of the 28 European Member States? Where can the « common heritage of political traditions, ideals, freedom and the rule of law », which is evoked in the preamble of the ECHR, be seen today? The article responds to these questions by arguing first that the European Community (later the European Union) has – from the outset – been in a pursuit race regarding the effective protection of fundamental rights. Effects of this phenomenon are still apparent today. Examples given in the article show that the European Union falls short of the aforementioned common heritage. Regarding asylum rights, for example, the CJEU does not completely follow the ECtHR case law. Regarding the European Arrest Warrant, it was a recent call of the German Federal Constitutional Court that triggered a change of thinking at the Court in Luxembourg on how the state of execution can protect the fundamental rights of the person sought. In the second part, the article further elaborates on how the fundamental rights protection is at test regarding the current crises. In this context, it points out the protocols no. 15 and 16 to the ECHR that, according to the author, give the states a margin of appreciation that it too large, thus enabling them to avoid respecting the Convention’s guarantees.

    In the third part, the author addresses the (im)possible accession of the EU to the ECHR as foreseen by the Treaty of Lisbon. He argues that accession currently is in the far distant future and could lead to the persistence of a “double Europe” in which fundamental rights and freedoms are insufficiently protected. However, the article does not conclude pessimistically, but argues that the European Union can win the pursuit race on fundamental rights.