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Article 52(3) of the Charter of Fundamental Rights of the European Union (CFR) holds that the Court of Justice of the European Union (CJEU) is bound by the interpretation of case law by the European Court of Human Rights (ECtHR) for corresponding rights in the ECtHR. As such, the ECtHR – for corresponding rights – functions as the absolute minimum level of protection that is to be afforded by the CJEU. This provision ensures the necessary consistency and coherence between the ECtHR and the CJEU in matters that concern identical rights. However, in the assessment of case law in the field of asylum and migration – a highly politicised and topical area of law – it appears that this consistency and coherence is at times lost. Seemingly, the CJEU sometimes follows the line of reasoning by the ECtHR for corresponding asylum and migration related rights, sometimes explicitly rules against the line of reasoning by the ECtHR and sometimes simply does not pronounce itself on the standard of protection to be applied to corresponding rights. Bearing this in mind, legitimate expectations, legal certainty and the effectiveness of fundamental rights protection may be detrimentally affected vis-a-vis the rightholders, not to mention the institutional legitimacy of both Courts.
Past decades have been indicative of the tumultuous relationship shared between CJEU and the European Court of Human Rights (ECtHR). Whereas in certain fields of fundamental rights protection, both Courts appear to apply a similar – if not equivalent – standard of protection, this cooperative approach is seemingly absent in the field of asylum and migration. Rather, it appears that both Courts, in protecting the fundamental rights of migrants and asylum seekers, apply an ad hoc approach in their reasoning, as a result of which their judgments often explicitly contradict each other, at other times converge, or alternatively are inconclusive as to the standard of protection to be afforded.
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