|Language of instruction||English|
|Offered by||Radboud University; Faculty of Law; Internationaal & Europees recht; |
|SEM1A|| (01/09/2022 to 29/01/2023)|
|Registration using OSIRIS||Yes|
|Course open to students from other faculties||Yes|
The course concentrates on protection of fundamental rights in Europe. It starts with a series of 5 lectures which give attention to a number of institutional issues, i.e. the architectural design of fundamental rights protection in Europe, and a number of general principles of European protection of fundamental rights. In the second part of the course, a series of 4 lectures is devoted to an in-depth study of a number of specific fundamental rights, thereby deepening the understanding of the general principles studied in the first part of the course. The final lecture in week 10 discusses the enforcement of European fundamental rights. In week 11, a moot court session takes place during a tutorial. Additionally, an old exam will be discussed. The course is rounded up by a Q&A-session in week 11 of the course, where the students can ask questions about the materials studied for the course, the content of the lectures and the exam.
The development of European fundamental rights protection|
Fundamental rights are of extraordinary importance to live the lives we want to live. They allow us to make our own, autonomous choices as to the things we consider important in our lives and they are essential to guaranteeing human dignity. Moreover, fundamental rights such as the right to vote or the freedom of expression and assembly are indispensable preconditions for a well-functioning democracy.
Fundamental rights have since long been recognised and protected in national constitutions. The horrors of the Second World War made abundantly clear, however, that national institutions alone cannot be trusted to offer full protection of fundamental rights. For that reason, just after WWII, numerous international and regional systems were developed to allow for external control and supervision and to enhance co-operation and interdependency in the field of fundamental rights. Especially in Europe, revolutionary new mechanisms were introduced.
Firstly, since 1950, our fundamental rights have been guarded by the European Court of Human Rights (ECtHR), based on the European Convention of Human Rights and Fundamental Freedoms (ECHR). Originally designed as an ‘alarm bell’ system that would allow early intervention in case of threats of tyranny or oppression, the ECHR system has developed into one of the most successful examples of international collaboration and supervision. Rather uniquely for an international court, individual victims of violations of fundamental rights can seek redress and compensation at the ECtHR. They can complain about their own governments, allowing the ECtHR to function as a fully external control mechanism. Its contribution to the protection and development of fundamental rights is enormous and ECHR rights have become deeply embedded in national legal systems.
The European Union (EU) also started out as a response to WWII. Close co-operation between states and the creation of interdependency in important areas, such as the use of raw materials (coal, steel) and trade, was expected to help avoid new conflicts and problems. Primarily occupied with economic collaboration, individual fundamental rights originally found no place in the European communities. As from the 1970s onwards, however, in response to some Member States’ criticism of the lack of fundamental rights protection in the EU, a fundamental rights discourse started to develop. After a slow and careful start, fundamental rights came to be recognised as fundamental principles of community law by the European Court of Justice and important changes in the treaties of the European Union have brought about a fully-fledged system of fundamental rights protection in the EU. The EU Charter of Fundamental Rights and Freedoms is binding on the EU as well as on the member states since December 2009, and in the Lisbon Treaty it is even agreed that the EU shall accede to the ECHR.
Changes and developments
The elaborate system of fundamental rights protection in Europe has great impact on our daily lives and on our national legal systems. This is not only the consequence of the very existence of European supervision and control. Over the past sixty years, other things have changed, too. In particular, our perspective of what fundamental rights essentially are has changed. Whilst the drafters of the ECHR had in mind the atrocities of WWII, modern examples of fundamental rights issues concern one’s privacy when using the internet, the use of modern technologies in biomedicine or the right to non-discrimination in social security. Moreover, it is important to note that the designers of the ECtHR in the late 1940s regarded ‘the state’ as the greatest threat to fundamental rights, so they empowered the individual by allowing him to seek European protection against national authorities. Over time, however, we have grown to accept that the state has great influence on our day-to-day lives and we have come to expect it to create the conditions to effectively realise and exercise our rights. Recent data even show that people associate ‘human rights violations’ more easily with violations by other individuals and companies than with state action. Finally, our societies have become increasingly complex and diverse, which gives rise to many new controversies and complexities related to the exercise fundamental rights. Does freedom of religion prohibit a state to refuse to give a residence permit to foreign imams? Where should the balance be struck between the right to privacy and the desire to combat terrorism or to prevent crime? Is it permitted for a state to prohibit homosexual marriages or stem-cell research? Are politicians allowed to say anything they like, or are there any limits? How should we deal with internet piracy and with the state trying to get access to individuals’ e-mails and telephone data?
Complexity of European fundamental rights protection
As a result of all these developments, protection of fundamental rights in Europe has grown to be extremely complex. The co-existence of national, EU and ECHR mechanisms results in a myriad of legal questions, ranging from how to guarantee coherence and consistency in the interpretation of rights to the question how ECHR judgments should be incorporated in national law. Moreover, there is complicated interaction between the judgments of the ECtHR and the Court of Justice of the European Union (CJEU) in the field of fundamental rights, national legislation, policy and case-law. Given the extension of the scope of fundamental rights, they are now visible almost everywhere, from criminal law to company law, and from private law to constitutional law. It is therefore important to know and understand the dynamics of interpretation and limitation of fundamental rights in Europe. It is furthermore important to learn how the European Courts deal with issues of diversity and with the applicability of fundamental rights in relationships governed by private law and to obtain insight into how they deal with conflicts between fundamental rights.
Against this background, this course aims to help you obtain insight into the most important aspects of European fundamental rights law. In the first part of the course, the architecture of the system is discussed. After having given a short sketch of the background and history of European human rights protection, the peculiarities of the systems of the ECHR and the EU are further explained, as well as the interrelationship between these systems and national law. Secondly, insight is provided into the general principles of European fundamental rights protection, first on a more general level, thereafter in connection with a selection of fundamental rights. For example, the doctrine of the margin of appreciation is discussed in relation to the right to respect for one’s privacy and the doctrine of horizontal effect is discussed in relation to the freedom of expression. Thus, it is intended that the students obtain thorough knowledge of the development of specific fundamental rights paired with insight into the working of the general principles in the case-law of the CJEU and the ECtHR.
Overview of topics
During the course, the following topics are addressed:
- Fundamental rights in Europe: development and challenges
- The ECHR system of fundamental rights protection
- The EU system of fundamental rights protection
- General principles of fundamental rights (I) – application, interpretation, horizontal effect and state obligations
- General principles of fundamental rights (II) – limitations, proportionality and the margin of appreciation
- The right to life, the prohibition of torture and positive obligations
- Private life and data protection
- Freedom of expression and religion
- The enforcement of European fundamental rights
FOREIGN EXCHANGE STUDENTS: Basic knowledge of European Law
Dutch students: 45 EC B1 & 'Inleiding Internationaal en Europees recht' or 'Inleiding Internationaal recht' and 'Inleiding Europees recht' (B1)
Written examination (100% of final grade), consisting of a number of essay questions.
Contact information |
Coordinator: mr. K. (Kris) van der Pas, Montessorilaan 10, room 02.004, tel.: +31-24-3615601, e-mail email@example.com
Secretariat: Department International and European Law, Mrs. M.C. (Charley) Berndsen-Teering, Montessorilaan 10, room GR 01.005, e-mail firstname.lastname@example.org
|Reader Fundamental rights in Europe 2022-2023|
|Case-law reader Fundamental Rights in Europe 2022-2023|
|Type of instructional mode||Weblecture|
GeneralDepending on the developments surrounding Covid-19, lectures may be (partly) offered in digital form this academic year.
|Test type||Digital exam with CIRRUS|
|Opportunities||Block SEM1A, Block SEM2A|