| Abstract [eng] |
The Bosphorus presumption was formed and explicitly applied for the first time in 2005 by the European Court of Human Rights in order to evaluate whether a Member State of the European Union (the EU), by adopting an act which implements EU law, acts in compliance with the Convention. Such issue arose due to a very specific relation between the EU, which is not a party to the Convention, the Member States, each a party to the Convention, and the Convention system. According to the Bosphorus presumption, when a state implements its obligations arising from the membership in the international organization, the State is presumed acting in compliance with the Convention, provided that protection of human rights in that international organization is equivalent to that provided by the Convention. In 2013, the draft agreement on the EU accession to the Convention was negotiated. And although the EU Court of Justice by its Opinion 2/13 postponed the process of the EU accession to the Convention for an indefinite period, the EU primary law still obliges the EU to accede to the Convention. Thus, the question remains whether the EU accession to the Convention is to change the position of the Strasbourg Court on the level of protection of fundamental rights in the EU and further application of the Bosphorus presumption. The objective of this thesis is to examine this presumption and assess the possible effect of the EU accession to the Convention on the existence and application of the Bosphorus presumption. This dissertation analyses application of such presumption as well as arguments supporting or disproving the need for application of the presumption after the EU accession to the Convention and provides probable scenarios of the Bosphorus presumption. |
