Journal Article

The structure of fundamental rights and the European Court of Human Rights

Janneke Gerards and Hanneke Senden

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 7, issue 4, pages 619-653
Published in print October 2009 | ISSN: 1474-2640
Published online October 2009 | e-ISSN: 1474-2659 | DOI: https://dx.doi.org/10.1093/icon/mop028
The structure of fundamental rights and the European Court of Human Rights

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

Journal Article.  17748 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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