CYIL 2015

HUMAN RIGHTS BETWEEN STRASBOURG AND LUXEMBOURG … ECtHR case law and its conclusion that “the right to refuse to produce self-incriminating documents is one of the foundations of fair trial under Article 6 paragraph 1 ECHR”. 11 Legal sources of human rights protection in Europe and CJEU opinion no. 2/2013 Legal sources of human rights protection in Europe further include: • owndomestic law, including inmost cases thenational constitution’s fundamental rights catalogue; • the ECHR and its Protocols; • the EU Charter of Fundamental Rights. Different sources, sometimes coexisting but often overlapping, must be combined when courts apply law to protect human rights. In this context, a key role is played by national courts, acting not only as EU courts ( Union courts of ordinary jurisdiction ) but also as Convention courts ( Convention courts of ordinary jurisdiction ). Basically, it is the responsibility of national courts to ensure adequate protection of human rights already on the national level. This makes national courts key guardians of fair trial. 12 Courts operating on a supranational level play the role of a final arbitrator, correcting and setting the course that national courts should keep. Thereby, supranational courts act as a common denominator by setting a minimal standard or legal protection of individuals or the common core of what are considered shared values within the framework of human rights. Nevertheless, a plenary session of the CJEU changed the steps planned to be taken towards the EU’s accession to the Convention. In December 2014 the CJEU issued its opinion no. 2/2013, 13 focusing on a request by the European Commission under Article 218 paragraph 11 TFEU dated 4 July 2013 regarding an obligation under primary law. Namely, the request concerned Article 6 paragraph 2 of the Treaty on European Union, binding (still) the Union to accede to the European Convention on Human Rights. 14 The mentioned Article was further supplemented by Protocol no. 8, specifying basic principles to be observed during the accession. Those mostly concern preserving the specific nature of (the law of ) the EU when participating in the control bodies within the framework of the Convention and making sure that ECtHR proceedings and applications are correctly addressed either to Member States or the Union, and that powers of EU bodies entrusted to them by the Treaties (TEU and TFEU) are maintained as well as that all conditions of accession of individual Member States to the Convention including their reservations are observed. 11 Funke v. France, ECtHR decision dated 25. 2. 1993; application no. 10828/84. 12 ECtHR decision in Hermi v. Italy , complaint no. 18114/02, paragraph 72 of the decision. 13 Plenary opinion of the Court of Justice of the European Union dated 18 December 2014. 14 The legal basis for such accession is in Article 6 paragraph 2 TEU and Protocol no. 8 on the part of EU and in Article 59 paragraph 2 ECHR and Protocol no. 14.

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