Summary
Fundamental rights samenvatting week 5
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Fundamental rights samenvatting week 5 - judicial protection
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Arresten:• Handyside v UK
• CILFIT v Ministry of Health
• DEB v Bundesrepublik Deutschland
Judicial protection
Access to a court is a very important right because it enables people to enforce their
rights. It transforms rights from theory into practice.
Judicial protection:
• National level: national courts
• European level: CJEU and ECtHR
Principle of subsidiarity (Art. 5(3) TEU, ECHR preamble): before going to the
European Courts, individuals must have turned to the national courts first. Therefor
the safeguarding of fundamental rights is first and foremost up to the national courts.
Legal decisions should always be taken at the level closest to where they will have
effect or influence. National courts have the primary responsibility to secure the
fundamental rights and freedoms.
Judicial protection at national level:
2 dimensions:
• Right to a fair trial is a fundamental right itself: the cases need to be fair. In a
criminal case, the accused must have the opportunity to defend themselves against
the allegations. In a conflict between 2 private parties, a national court must ensure
that these parties have equal opportunities to present their case
• Judicial control of decisions and actions of public authorities and private
actors is crucial in order to guarantee the effectiveness of the fundamental
rights of individuals: national courts can rule for example whether the expulsion
of a family member violates the right to family life, an offensive tweet falls within the
scope of the freedom of expression or a law prohibiting public officers to wear a
headscarf is in accordance with the freedom of religion.
National courts need to be fair and effective.
, Court or tribunal: 2 requirements:
• Independent
• Impartial
Procedural requirements: the fairness of a national procedure or effectiveness of
a remedy does not depend on the outcome but merely on its availability, accessibility,
carefulness and fairness. Procedures available at national level need to be
accessible. This can be hindered by for example, a lack of information about
available remedies or short time limits for lodging an appeal.
ECtHR leaves a margin of discretion when applying the right to a fair trial or
the right to a legal remedy because of:
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