From Opinion 2/13 to Avotiņš: Recent Developments in the Relationship between the Luxembourg and Strasbourg Courts

Abstract

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An Olive Branch from Strasbourg? Interpreting the European Court of Human Rights’ Resurrection ofBosphorusand Reaction toOpinion 2/13in theAvotiņšCase

“…In fact, the European Court of Human Rights started to refer to Union law more once the Charter became binding, 41 and the relevant figures for the period after the publication of Opinion 2/13 up until 2016 show that the European Court of Human Rights does not appear to be decreasing the number of references to EU law in response to the opinion. 42 Thus, Avotiņš confirms that the Bosphorus doctrine is still alive and well, and that the European Court of Human Rights has not decided to overturn it (yet). This, of course, does not mean that Strasbourg might not one day be inclined to move slowly but surely away from this presumption, but so far it is at least safe to say that Avotiņš did not offer the right opportunity to do so for the judges at the European Court of Human Rights.…”

“…47 To begin with, concerning the question of whether the implementation of the presumption should be subject to a requirement for domestic courts to request a preliminary ruling in all cases without exception, 48 it is interesting to note that the European Court of Human Rights for the first time explicitly acknowledges that the procedural criterion for the application of Bosphorus should not be applied stringently. 49 Thereby the Strasbourg Court seems to align its approach more closely to Luxembourg's case law, as the former implicitly referred to the latter's CILFIT exceptions regarding the obligation for the highest national courts to request a preliminary ruling. 50 Furthermore, the European Court of Human Rights does not examine any more substantively whether the Latvian Supreme Court was indeed under an obligation to request such a ruling, because this question must be left to the European Court of Justice itself.…”

Prison Inspection and Monitoring: The Need to Reform European Law and Policy

“…Were the decision to result in inspection and monitoring mechanisms becoming relevant to considerations of 'mutual trust' between states, this would have very significant implications, creating a need for minimum standards in how inspection and monitoring bodies operate. It will be illuminating to see how the decision in Aranyosi and Căldăraru (2016) and its subsequent interpretation (Anagnostaras 2016;Xanthopoulou 2018;Glas and Krommendijk 2017) interacts with the ECtHR's positions on inspection and monitoring. As such, the decision of the ECJ may prompt more examination of the role of inspection and monitoring bodies as factors to assess in the prevention of breaches of rights on the part of the ECtHR.…”

Koordinácia Úrovne Ochrany Práv v Európe v Kontexte Pristúpenia Európskej Únie K Dohovoru O Ochrane Ľudských Práv a Základných Slobôd

“…Naopak, Charta spôsobuje, že právo EÚ je pre ESĽP atraktívnejšie, a naviac, keďže niektoré ustanovenia Charty poskytujú vyššiu úroveň ochrany ako Dohovor, judikatúru ESĽP to môže ešte posilniť. 25 Považujeme za dôležité uviesť, že tento náčrt signálov, ktoré Súdny dvor vysiela v období po zverejnení stanoviska 2/13, do nášho článku vkladáme pre ilustráciu toho, akým smerom sa uberajú nálady Únie v súvislosti s pristúpením.…”