Summary
Fundamental Rights samenvatting week 2
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Fundamental rights samenvatting week 2 - legal orders and scope
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ECHR = engels voor EVRM3 exceptions to territorial jurisdiction (Art. 1 ECHR):
• State agent who had authority and control
• Effective control over an area
• Legal space
Obligations of a state:
• Negative: respect human rights, bv honor the freedom of speech
• Positive:
• Protect: actively protecting a right, bv police
• Fulfill: actively investigating and prosecuting a violation of a human right.
Arresten:
• Bosphorus v Ireland
• Al Skeini and others v UK
• Åklagaren v Hans Åkerberg Fransson
Principle of effectiveness: example Airey case: the applicant was unable to find a lawyer to act
for her, because she had no money and there was no legal aid available. The Court found a
violation of Art. 6(1) ECHR because the right to a fair trial had to be practical and effective rather
than theoretical and illusory.
The convention is a living instrument: the Convention has to be given somewhat of an activist
interpretation, the content of the Convention rights will change over time. It’s not static.
2 labels with regard to the view and development of law:
• Judicial activism: used to disclose a judicial approach which seeks to extend or modify
existing law
• Judicial restraint: used to refer to a judicial approach which focuses upon the judge applying
existing law and avoiding developing the law beyond its clearly established boundaries.
Integrated approach: new approach which seems to be arising. It seeks to integrate
interpretation of the civil and political rights and the interpretation of economic, social and cultural
rights.
The overal approach of the Convention is based on the principle of solidarity and subsidiarity:
• Solidarity: based on the commitment of the Contracting Parties to secure effective protection of
the rights enumerated in the Convention within their legal orders
• Subsidiarity: refers to the role of the Strasbourg Court as secondary to the institutions of
national legal systems in adjudicating on claims that Convention rights have been violated.
So national law must give full effect to the rights in the Convention. The Contracting Parties can
choose different methods to implement the guarantees. Incorporation in some form is now the
standard means by which effect is given to the rights in the Convention in the national legal
orders.
Art. 1 ECHR: territorial jurisdiction. This article guarantees to safeguard Convention rights to
those within the jurisdiction of a Contracting party.
Espace juridique: the Convention can only apply inside the territorial borders of its Contracting
States and not beyond this European legal space. This rule does not always apply.
3 exceptions to territorial jurisdiction (Art. 1 ECHR):
, • State agent who had authority and control
• Effective control over an area
• Legal space (not really used)
Effective control: if there is effective control over an area, the controlling State has the
responsibility to secure, within the area under its control, the entire range of substantive rights set
out in the Convention.
Authority and control: in situations where the State through its agents exercises control and
authority over an individual, the State is only under an obligation to secure to that individual the
rights and freedoms under Section 1 that are relevant to the situation of that individual.
In extraordinary circumstances such as war, rebellion or the installation of a separatist regime
within its territory, the responsibility of a State regarding Art. 1 ECHR is limited to its positive
obligations relating both to:
• Measures needed to re-establish control over the territory
• Measures to ensure respect for individual rights
Charter:
• The Charter only codifies existing fundamental rights, it doesn’t create new ones
• The Charter codifies European rights from various sources, and thus not only the general
principles found in the European Treaties
4 general principles on the interpretation of the Charter:
1. Art. 51 Charter: the Charter is addressed to the Union and will only apply to the member
states.
2. Not all provisions within the Charter are rights, which means not all provisions are directly
effective entitlements to individuals
3. Art. 52(1) Charter: the rights within the Charter can be restricted by Union legislation
4. Art. 52(2-4), 52(6) Charter: the Charter tries to establish harmonious relations with the
European Treaties and the European Convention, as well as with constitutional traditions
common to Member States.
Principle 2^ : the Charter makes a distinction between rights and principles. Hard rights: rights
that will have direct effect and can be invoked before a court. Principles are more like objective
guidelines; they don’t give rise to direct claims for positive action by the Union institutions. The
distinction between rights and principles is hard to make, but it’s said that rights are situational
crystallizations of principles and therefore derive from principles.
Principle 3^ : some rights can be limited to safeguard the general interest. These limitations are
often recognized for each constitutional right. The Charter also had limitations for some articles,
but it also has a provision that contains limitations on limitations. Art. 52 Charter says that all
limitations must fulfill 3 requirements:
1. Any limitation of a fundamental rights must be provided for by law
2. Each restriction of fundamental rights must be necessary in light of the general interest of the
Union or the rights of others (proportionality)
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