Two great European courts, the European Court of Human Rights in Strasbourg and the Court of Justice of the European Union based in Luxembourg are the last hope for many Europeans, especially for societies and nations injured and exposed to authoritarians from bygone eras in power.
However, while the Court in Luxembourg is an EU court, which thus benefits from the institutional and jurisdictional integrity of the EU legal system, which allows for correspondingly higher requirements, the Court in Strasbourg assesses the rule of law in countries belonging to the Council of Europe. It is an organization that also includes countries that are clearly undemocratic, at least in the sense of Western European standards, such as Russia. This is probably the main reason why the standard of human rights protection and evaluation of undemocratic institutions is rather low. It results not only from those cases examined by the Tribunal and in which it adjudicates, but above all from those which it does not accept for examination, because, which in itself is the essence of the problem, it has complete, uncontrolled freedom in this respect.
This is why, for example, the application of pre-trial detention or, in general, the functioning of the prosecutor’s office in Poland, which in many respects does not meet the conditions that we would consider civilized in the Western sense of the word, does not experience any real limitation thanks to the jurisprudence of the Tribunal. Simply put, the Tribunal must limit itself according to the actual state of democracy in the member states. Usually – to the lowest common denominator of the rule of law. And this is a tendency in a way beyond the influence of the judges.
On the other hand, at the level of judgments, there is a very strong tendency to issue far-fetched, ideological judgments that are to promote particularly progressive European values, such as individual rights and non-discrimination. The problem is that in judgments that are often exemplary, at the same time disregarding or ignoring traditional or “even more basic” values, such as honesty and decency. These are the sentences that show that if you are discriminated against, you can steal and cheat, and nothing will happen to you. This conclusion follows, inter alia, from the case of Barbulescu v. Romania (61496708), Lopez Ribalda v. Spain (1874/13 and 1874/13) or recently Jurcic v. Croatia (54711/15).
There is more harm than good of such judgments, assuming that someone reads them. The only thing that protects them is the fact that they are several dozen pages long and are intended for those who write their doctorates on this basis, not for ordinary Europeans.