Thursday, 29 October 2009

Article on Structure of Fundamental Rights and ECHR

Two former colleagues of mine at Leiden University, Janneke Gerards and Hanneke Senden, have written a clear analysis of the Court's sometimes not very precise reasoning in distinguishing between the definition of the scope of rights and the examination of the justification for interferences of such rights. The article, set to appear in the upcoming issue of the International Journal of Constitutional Law is entitled 'The Structure of Fundamental Rights and the European Court of Human Rights'. This is the abstract:

An important aspect of the structure of fundamental rights is the bifurcation between the definition of scope and the review of justification. This bifurcation is of great importance to the division of the burden of proof and to the use of argumentative tools such as the doctrine of the margin of appreciation. Nonetheless, it appears that the European Court of Human Rights does not always take the bifurcation seriously. It often omits to address issues of definition or merges the two elements into one single test. This paper highlights some of the problematic consequences of the Court’s approach towards the structure of fundamental rights. In the end, the Court’s current approach may hamper the effectiveness of the Convention system and limit the protection offered to individual citizens. A more structured approach towards the scope and definition of Convention rights may help to avoid or solve these problems.

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