The structure of fundamental rights and the European Court of Human Rights
* Professor of Constitutional and Administrative Law, University of Leiden. Email: j.h.gerards{at}law.leidenuniv.nl
** Ph.D. candidate, Faculty of Law, University of Leiden. Email: h.c.k.senden{at}law.leidenuniv.nl
 |
Abstract |
|---|
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.