Harmonizing Europes Human Rights System: The European Unions Accession to the European Convention on Human Rights

Abstract

This article gives a brief overview of the European human rights system and

the two basic actors, the European Court of Justice (ECJ) and the European Court

of Human Rights (ECtHR). It is not surprising that these two courts, which have

such different traditions, sometimes interpret the same human rights provisions in

a different way. This issue shall be depicted by way of using the example of their

differing interpretation of the Article 6 of the European Convention of Human

Rights (ECHR) in the cases of Orkem before the ECJ, Funke and Saunders before

the ECtHR and finally Limburgse Vinyl Maatschappij before the ECJ. In the cases

mentioned above, the courts have not only shown fundamentally different

approaches to determine the meaning of the nemo tenetur principle in cases concerning economic proceedings. The ECJ has also upheld its less human-rights-friendly approach after dealing with the ECtHRs jurisprudence in the matter, thus disregarding the opinion of the court that is competent to interpret the ECHR. This article afterwards presents one of the major problems arising in the accession process. The European Union (EU)s fear of external judicial control

shall serve as an example for the difficulties arising with the accession of a

supranational organization sui generis to a convention to which all of its member

states are already members. This article presents the proposed solution to this

problem, the so-called co-respondent mechanism. Finally, a brief look into the future poses the question whether the upcoming accession of the EU to the ECHR can harmonize the human rights jurisprudence in the EU. It is the opinion of the author that such a step has the potential to promote a consistent and understandable European human rights system and to strengthen the European peoples trust in the European legal order.