Fundamental Rights and Principles: Liber Amicorum Pieter van Dijk

Fundamental Rights and Principles: Liber Amicorum Pieter van Dijk

By: Ben Vermeulen (editor), Marjolein van Roosmalen (editor), Fried van Hoof (editor)Hardback

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Pieter van Dijk has devoted his working life to the theory and practice of fundamental rights and principles. Therefore, it may not come as a surprise that his liber amicorum is devoted to these values. Many of his friends and (former) colleagues from - inter alia - the Council of State of the Netherlands, the European Court of Human Rights in Strasbourg, the European Commission for Democracy through Law of the Council of Europe (the Venice Commission) and the Joint Court of Justice of Aruba, Curacao, Sint Maarten and of Bonaire, Sint Eustatius and Saba have contributed to this volume. They have analyzed fundamental rights and principles from various perspectives, including preconditions for safeguarding fundamental rights, the interaction between the Strasbourg, Luxembourg and national courts and constitutional review.

Contents

I. PIETER VAN DIJK Pieter van Dijk: the Person Joke van der Meer Pieter van Dijk: the Scholar. Recalling a 'Wide-ranging Study of Comparative Jurisprudence' Jos Kapteyn Pieter van Dijk: the State Councillor and Human Rights Lawyer. Preconditions for Safeguarding Fundamental Rights Erik Visser and Annerie Verbeek 1. Introduction 2. The Council of State: Its Tasks and Contexts 3. Acting Vice-President and Chair of the Constitutional Law Committee 4. President of the Administrative Jurisdiction Division 4.1. Reducing Turnaround Times 4.2. Accessibility and Predictability of Judgments 4.3. Judicial 'Lawmaking' 4.4. Cooperation with the Joint Court of Justice and Developments in the Area of Mediation and the Right of Complaint within the Administrative Jurisdiction Division 5. Conclusion II. STRASBOURG The Concurring and Dissenting Opinions of Pieter van Dijk as a Judge of the European Court of Human Rights Fried van Hoof and Leo Zwaak 1. Introduction 2. The Interpretation and Application of Article 6 of the Convention 2.1. Anonymous Witnesses 2.2. Objective Impartiality 2.3. Adequate Time and Facilities for the Preparation of the Defence 2.4. Absence of an Oral Hearing 3. Article 8 of the Convention 3.1. Transsexualism 3.2. Expulsion and the Right to Family Life 4. Article 9 of the Convention: Freedom of Religion 5. Article 10 of the Convention: Freedom of Expression 5.1. Freedom of Expression in a Democratic Society 5.2. Proportionality 6. Exhaustion of Domestic Remedies 7. Conclusion Pieter van Dijk and His Favourite Strasbourg Judgment. Some Remarks on Consensus in the Case Law of the European Court of Human Rights Egbert Myjer 1. Introductory Remark 2. The Christine Goodwin Case 3. The Notion of Consensus and Margin of Appreciation and the Brighton Declaration 4. Interpretation and Application of the Convention 5. The Interpretation Given by the Court also of Importance for Other High Contracting Parties 6. Interpretation Methods Used by the Court 7. Consensus in the Case Law of the Court 8. How Does the Court Determine Consensus? 9. Concluding Remarks Judicial Minimalism and 'Dependency'. Interpretation of the European Convention in a Pluralist Europe Janneke Gerards 1. Introduction 2. Autonomous and 'Dependent' Interpretation 2.1. Autonomous Interpretation and Its Risks 2.2. 'Dependent' Interpretation and the Value of Flexibility Deliberate Choice for a Non-autonomous Approach Dependency, or the 'in for a Penny, in for a Pound' Approach 81 Conclusion 3. Judicial Minimalism: Shallow, Narrow and Analogical Reasoning 3.1. Shallow Reasoning 3.3. Narrow Reasoning, Analogical Reasoning and General Principles 3.4. Disadvantages of Judicial Minimalism 3.5. Conclusion 4. Conclusion Switzerland before the European Court of Human Rights Giorgio Malinverni The Impact of the Case Law of the European Court of Human Rights on the Political Debate in the Netherlands concerning the Court Martin Kuijer 1. Introductory Comments 2. The Period of the Sleeping Beauty: 1950 till mid Nineteen Seventies 3. The Court's Awakening: The Nineteen Eighties and Nineties 4. The Rise of a European Immigration Tribunal: Anno 2012? 5. Concluding Comments Environmental Protection under Article 8 of the European Convention on Human Rights Thijs Drupsteen 1. Some Recent Cases Dees v. Hungary Ivan Atanasov v. Bulgaria 2. Criticism of the Strasbourg Court 3. Environmental Cases under Article 8 of the Convention Lopez Ostra v. Spain Guerra v. Italy Hatton v. the United Kingdom (the Heathrow case) Kleyn and Others v. the Netherlands (the Betuweroute case) Taskin and Others v. Turkey Moreno Gomez v. Spain Fadeyeva v. Russia Giacomelli v. Italy Tatar v. Romania Bacila v. Romania Oluic v. Croatia Mileva v. Bulgaria Dubetska and Others v. Ukraine Zammit Maempel v. Malta Di Sarno v. Italy 4. Conclusion State Obligations to Adequate Judicial Response in Cases under Article 2 of the Convention. Issues of Admissibility Zdravka Kalaydjieva 1. The Positive Procedural Obligations of National Authorities under Article 2 of the Convention 2. The Rights to Effective Remedy and Access to Court and the Positive Obligation to Judicial Response 3. Admissibility Criteria 3.1. Manifestly Ill-founded Complaints 3.2. Failure to Exhaust Domestic Remedies 3.3. The Ex Officio Nature of the Investigation and the Requirements of Article 35 3.4. Victim Status in the Convention Proceedings III. LUXEMBOURG Access to the European Union Courts. Standing in Direct Actions aft er Lisbon Arjen Meij 1. Introduction 2. From Plaumann to Jego-Quere, UPA and Lisbon 3. First Applications: Inuit and Microban 4. Final Observations The Role of the European Parliament in the Fundamental Rights Architecture of the European Union Johan van Haersolte and Jan-Kees Wiebenga 1. Introduction 2. The European Parliament from the Nineteen Fifties to the Nineteen Eighties: an Actor in Search of a Script 3. The European Parliament from the Nineteen Eighties to the Present: Bringing Fundamental Rights Home 4. The European Parliament: with a Little Help from Its Friends 5. The European Parliament after Lisbon: Staying Alert 6. Review and Appraisal IV. BETWEEN STRASBOURG, LUXEMBOURG AND THE HAGUE The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union: Back to the Roots Kamiel Mortelmans and Hanna Sevenster 1. Sources of Human Rights: Competition and Cooperation 1.1. Introduction 1.2. Added Value of the Charter Compared to Other Sources of Human Rights 1.3. Competition and Cooperation 2. Rethinking (the Sources of ) Human Rights Within the Council of State 3. Human Rights Addressees 3.1. The Case Law Before the Entry into Force of the Legally Binding Charter 3.2. The Case Law After the Entry into Force of the Charter 3.3. The Evolution of the Administrative Jurisdiction Division's Case Law on Public Authorities Invoking the Convention The Place of Article 34 of the Convention (the Right of Individual Petition) The Unique Character of the Convention The Nature of the 'Public Authority' 3.4. The Administrative Jurisdiction Division's Case Law Regarding the Charter and Public Authorities The Right of Application of Public Authorities within the European Union System The Unique Character of the European Union System The Character of the 'Public Authority' 4. The Ability to Invoke Certain Provisions (Direct Effect) 4.1. Direct Effect within Union Law 4.2. Direct Effect and the Constitution of the Netherlands: Convergence? 5. Back to the Roots 5.1. Pieter van Dijk 's Academic Roots 5.2. Back to Pieter van Dijk's Academic Roots Intersentia The Role of the Administrative Jurisdiction Division of the Council of State in Relation to the European Court of Human Rights Jurgen de Poorter 1. Introduction 2. The Constitutional Foundation for the Relation Between the Division and the Strasbourg Court 3. Interaction in a Menage a Trois 4. More Room for Joint Responsibility Held by the Division and the Strasbourg Court 4.1. Introduction 4.2. The Strasbourg Court as Injunctive Relief-Granting Judge 4.3. The European Court of Human Rights as Trial Judge 5. The Meaning of More Dialogue for National Courts 6. Towards a Preliminary Reference Procedure and a Certiorari System at the European Court of Human Rights? The European Court of Human Rights and the Court of Justice of the European Union: an Imperfect Match? Interaction between both Courts in the Field of Immigration Law Aleidus Woltjer 1. Introduction 2. The Court of Justice and the European Court of Human Rights on Expulsion 3. The Court of Justice and the European Court of Human Rights on Asylum 4. Epilogue Fundamental Rights Protection in Europe before and after Accession of the European Union to the European Convention on Human Rights Christiaan Timmermans 1. Introductory Remark 2. Relationship between both European Courts 3. The Charter of Fundamental Rights of the European Union 4. Accession to the Convention 5. Prior Involvement of the Court of Justice and the Co-respondent Mechanism 6. Future Relations between the Court of Justice and the Strasbourg Court V. VENICE The Venice Commission Twenty Years On. Challenge Met but New Challenges Ahead Gianni Buquicchio and Simona Granata-Menghini 1. The Original Challenge 2. The Venice Commission 3. The Venice Commission's Advice 4. The Venice Commission's Role 5. The Venice Commission's Future 6. Pieter van Dijk 's Contribution to the Venice Commission The Venice Commission and the Protection of Human Rights Finola Flanagan 1. Introduction 2. Freedom of Assembly 2.1. Advance Notification 2.2. Location 2.3. Blanket Restrictions 2.4. Guaranteeing Human Rights 2.5. Review and Appeal VI. THE KINGDOM OF THE NETHERLANDS IN EUROPE AND OVERSEAS Fundamental Rights in the Countries of the Kingdom of the Netherlands: Unity or Diversity? Jaime Saleh 1. Introduction 2. Fundamental Rights: Democracy, Good Governance and Human Rights 3. The Safeguarding of Fundamental Rights in the Kingdom of the Netherlands 4. Unity in Diversity Concordance in Administrative Law and the Joint Court of Justice of Aruba, Curacao, Sint Maarten and of Bonaire, Sint Eustatius and Saba Ton Bijloos, Rob Loeb and Joop Drop 1. Introduction 2. The Principle of Concordance 3. The Principle of Concordance and the Lar Court 3.1. Ne-Bis-In-Idem Principle 3.2. Brummen 3.3. Compensation Orders 3.4. Analogue Application Not Acceptable in Cases Where the General Administrative Law Act and Lar Differ 3.5. Article 20 of Chapter 6 of the General Administrative Law Act 3.6. Article 22 of Chapter 6 of the General Administrative Law Act 3.7. Articles 18 and 19 of Chapter 6 of the General Administrative Law Act 4. Amendment of the Lar Netherlands Antilles 5. Administrative Procedure on the BES Islands 6. Conclusion The Customisation Principle in the Council of State's Advisor y Opinions Rein-Jan Hoekstra and Arnold Weggeman 1. Introduction 2. Customisation Within One Legal Order 3. Customisation in the International Context 4. Customisation in European Cooperation 5. Customisation in Regard to Cooperation Within One Kingdom Country 6. Conclusion VII. ON PRINCIPLES AND RIGHTS FROM VARIOUS PERSPECTIVES The Status of General Principles of Law in the Legal Practice of the Netherlands. Some Observations Evert Alkema 1. Introduction 2. The Concept of Legal Principles 3. Focus of this Paper 4. International Legal Principles or 'General Principles of Law Recognized by Civilized Nations' 5. International Legal Principles in Dutch Constitutional Law and Doctrine 6. Domestic Legal Principles in Dutch Constitutional Law 7. The Court of Cassation's View on Legal Principles in its 1989 and 2009 Judgments 8. Principles in the Legal Practice of some Special Fields of Dutch Law 9. Concluding Remarks 9.1. Can Principles Set Aside Acts of Parliament? 9.2. Is Constitutional Change Necessary? The Development of General Principles of Good Governance in Dutch Administrative Case Law Jaap Polak 1. Introduction 2. The Compensation Idea 3. General Principles Before General Administrative Jurisdiction: Emphasis on Substantive Requirements of Decisions 4. Review Against General Principles of Good Governance aft er the Arrival of General Administrative Jurisdiction: Dominance of the Principle of Careful Preparation and the Duty to Give Suffi cient Reasons 5. Th e Juridification Discussion: the Van Kemenade Report (1996) 6. Parallels with the Development of Review Against Provisions from the European Convention on Human Rights? 7. Finality as Solution? The Principle of Legality Revisited Piet Hein Donner 1. Introduction 2. Thirty Years of Debate 3. Regulation and Legislation 4. A Self Sustaining Process 5. The Principle of Legality 6. The Principle Revisited Fundamental Rights and Principles from an Attorney's Perspective Arjen van Rijn 1. Introduction 2. Assistance of an Attorney as Another's Fundamental Right 3. Where the Subjective Rights of the Client and of the Attorney Meet: Attorney-Client Privilege 4. The Attorney's Freedom of Expression 5. The Attorney as a Subject of Fundamental Rights 6. Fundamental Rights as a Ground of Dispute 7. Do Attorneys Have a Public Function? 8. Conclusion The Inter-American Commission of Human Rights and the Inter-American Court. New Rules for Individual Communications Cecilia Medina Quiroga 1. Introduction 2. A Glimpse at History 3. The Changes in the Rules of Procedure of Court and Commission before 2009 4. The 2009 Amendments of the Rules of Procedure of the Inter-American Commission of Human Rights and the Inter-American Court; the Catalysts 5. The Process of Amending the Rules of Procedure 6. The Amendments Proper 6.1. The Amendments of the Commission's Rules of Procedure 6.2. The Amendments in the Court's Rules of Procedure 7. New Aid for Victims 8. Conclusions Freedom of Religion or Belief is an Asset Bahia Tahzib-Lie Prologue 1. Introduction 2. Internal Freedom of Religion or Belief and Challenges in Practice 2.1. Free and Alterable Choice of the Individual 2.2. Coercion Impairing Free Choice and Criticism of Religion and Belief 3. External Freedom of Religion or Belief and Challenges in the Public Sphere 3.1. Manifestations of Religion or Belief and Permissible Restrictions 3.2. Challenges Related to Diversity in the Workplace and Personal Use of Religious Symbols 4. Concluding Remarks Epilogue Freedom of Conscience and Tolerance in the Dutch Cultural Tradition Kees Schuyt 1. Freedom of Conscience as a Human Right 2. The Place of Conscience in the Dutch Cultural Tradition 3. The Concept of Conscience 4. Freedom of Conscience and Contemporary Tolerance The Rule of Law and Violations of Law in Police Investigations. Protecting the Embankments around Article 8 of the European Convention on Human Rights Geert Corstens and Reindert Kuiper 1. Landslides in the Area of Law Enforcement 2. Shifting Responsibility 3. 'Van Dijk 's' Test of the Rule of Law and Violations of Law in Police Investigations 4. Development of the Criminal Trial Judge's Review of Lawfulness 5. The Convention as a Review Mechanism 5.1. Article 6 of the Convention 5.2. Article 8 of the Convention 6. A Practical and Effective Article 8 of the Convention 7. Inspiration from the United States of America 8. Conclusion Th e Effect of Article 8 of the European Convention on Human Rights on Dutch Family Law Sylvia Wortmann 1. Family Law and Child Law: Permeated by Fundamental Rights 2. Family Life: The Facts Determine the Law 2.1. Family Life According to Dutch Law but Not According to European Law 2.2. Direct Application of Court's Case Law Regarding the Existence of Family Life 3. Positive Obligations: A Whole Code of Family Law 4. Effect of (Positive) Obligations of Dutch Family Law Article 8 of the European Convention on Human Rights. Proportionality and the Protection of Personal Data Luc Verhey and Mathijs Raijmakers 1. Introduction 2. The Proportionality of Data Processing 2.1. Article 8(2) of the Convention: A General Overview 2.2. Article 8(2) of the Convention: the Proportionality Test Nature of the Data Status of the Individual Involved Intrusiveness of the Interference Effective Control Measures to Prevent Abuse 2.3. European Union Law 3. The Legislature and the Proportionality Test 3.1. Introduction 3.2. The Proportionality Test in the Legislative Process Nature of the Data Intrusiveness of the Interference Effective Control and Preventing Abuse 3.3. Closing Remark: the Proportionality Test as a General Framework 4. Conclusion Reasonable Legislation. A Matter of the Rule of Law and Human Rights Anna Jasiak 1. Introduction 2. Rationalities in a Legislative Process 3. Reasonable Legislation 3.1. Substantive Reasonableness European Convention on Human Rights and the Notion of Law Legal Certainty: Accessibility and Predictability Legal Certainty: Retrospectivity Legal Certainty: Consistency and Stability of Legislation Equality Principle Generality of Laws 3.2. Procedural Reasonableness Proportionality Principle Debate/Weighing of all Interests Hasty Legislation/Timing 4. Conclusion The Right to Information under the European Convention on Human Rights Eric Daalder 1. Introduction 2. Article 6 of the Convention: Access to Information in Legal Proceedings 3. Article 10 of the Convention: A General Right to Information? 4. Conclusion Fundamental Rights, Fundamental Principles and Local Governments Hubert Hennekens 1. Introduction 2. The Phenomenon of Local Government 3. Is There a Fundamental Right of Existence for Municipalities? 4. The Right of Existence of the Municipality and the Municipality's Significance as a Government 5. How Does One Determine and Guard the Interests that Are to Be Pursued? 6. Perspectives on the Right of Recourse to a Judicial Authority in Order to Secure Local Autonomy VIII. CONSTITUTIONAL REVIEW The Priority Constitutional Review and Its Relationship to the Preliminary Reference Procedure Richard Lauwaars Preface 1. Introduction 1.1. Priority Constitutional Review 1.2. Some Numerical Data 1.3. Relationship with the Preliminary Reference Procedure 2. Background 2.1. Article 26(4) of the Belgian Special Law for the Constitutional Court 2.2. The Origin of Priority Constitutional Review 2.3. The Constitutional Council: Composition and Competencies 3. Th e Melki Case 3.1. The Facts 3.2. The French Court of Cassation 3.3. The French Constitutional Council and the Council of State's Reactions: the Councils Strike Back 3.4. The Judgment of the Court of Justice of the European Union Rejection (paragraphs 40 - 47) Interpretation in Conformity with the Treaty (paragraphs 48 - 53) . 536 Directives (paragraphs 54 - 56) Conclusion 4. Comments 4.1. Main Issue: The Relationship Between Priority Constitutional Review and the Preliminary Reference Procedure 4.2. Implementation of Directives 5. Conclusory Remarks 5.1. The Final Decision of the Court of Cassation 5.2. Lessons for the Netherlands? 5.3. The French Constitutional Council and the German Federal Constitutional Court Quis custodiet ipsos custodes? About the Institutional Position of Constitutional Courts Willem Konijnenbelt 1. Introduction 2. The Federal Supreme Court of the United States of America 3. The Federal Constitutional Court of Germany 4. The French Constitutional Council 5. The European Court of Human Rights 6. Final Remarks Constitutional Review by the Dutch Courts. A View from Kneuterdijk Marjolein van Roosmalen and Ben Vermeulen 1. Introduction 2. Dutch Constitutional Law and Fundamental Rights 3. Article 120 of the Constitution: No Constitutional Review of Acts of Parliament 4. Article 94 of the Constitution: Primacy of Self-executing Treaties over Acts of Parliament 5. The Dutch Court System: A Diversity of 'Constitutional Courts' 6. Constitutional Judgments of the Administrative Jurisdiction Division; Some Reflections on the Council of State's Constitutional Law Committee and its Chairman List of Contributors

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  • ISBN13: 9781780681085
  • Format: Hardback
  • Number Of Pages: 630
  • ID: 9781780681085
  • weight: 1130
  • ISBN10: 1780681089

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