The Structure of Fundamental Rights and the European Court of Human Rights

International Journal of Constitutional Law, Vol. 7, No. 4, October 2009

55 Pages Posted: 25 Sep 2009  

Janneke Gerards

Utrecht University - Faculty of Law; Institute for Jurisprudence, Constitutional and Administrative Law

Hanneke Senden

University of Leiden, Institute of Public Law

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Date Written: January 27, 2009

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.

Keywords: Fundamental rights, interpretation, justification, structure of rights, margin of appreciation, burden of proof, European Convention on Human Rights, European Court of Human Rights

Suggested Citation

Gerards, Janneke and Senden, Hanneke, The Structure of Fundamental Rights and the European Court of Human Rights (January 27, 2009). International Journal of Constitutional Law, Vol. 7, No. 4, October 2009. Available at SSRN: https://ssrn.com/abstract=1477259

Janneke Gerards (Contact Author)

Utrecht University - Faculty of Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

Institute for Jurisprudence, Constitutional and Administrative Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

Hanneke Senden

University of Leiden, Institute of Public Law ( email )

Postbus 9500
Leiden, 2300 RA
Netherlands

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