SKILLS

European Convention on Human Rights

Council of Europe, organising it (not part of the EU, to promote fundamental human rights, rule of law, democracy, Strasbourg, has 16 protocols e.g. abolition of death penalty

Cases concerning an individual v. a state, or a state v. state, both action and inaction

Admissibility to the European Court of Human Rights

Exhaustion of domestic remedies, within 4 months, convention rights, personally and directly a victim, significant disadvantage, member state

Then it makes a decision, and might include compensation

ECHR (Court)

One judge per Member State.

Chamber: Court of first instance - Grand Chamber

Concurring and dissenting options

Alternative conditions

Two (or more) conditions are listed and that either one or the other has to be fulfilled

Cumulative conditions

Two or more conditions are listed and that each condition has to be met

Questions for cases

Does the X on the applicant by X constitute a violation of the right X laid down in X?
Does the X on the applicant by X constitute an interference with the applicants right X as laid down in article X?

If so, can this interference be justified under article X?

Interpretation

Legal interpretation is a rational activity that gives meaning to a legal text

• We draft rules that are formulated in a general matter

• Legal professionals apply general rules to law to particular cases

• Judges and other legal professionals give legal meaning to a particular case

Process of interpretation

1) The facts of the case

2) Identifying the applicable law/legal norms

3) Interpreting the law/legal norms to make it fit the facts

4) Applying the law/legal norms to the facts

Interpretation methods in the NL (also in Vols)

• Grammatical: Explanation based on the ordinary or plain legal meaning of the words. Often involves explicit reference to dictionary definitions.

• Interpretation using legislative history: Explanation in accordance with the intent of the legislator, as interpreted from the parliamentary and political history of a statue

• Systematic: Explanation that aligns with the broader legal system and ties in with legal regulated situation

• Historical: Explanation that takes into account the legal system from which the provision originates

• Anticipatory: Explanation that aligns wit hthe meaning of a relevant provision in a new law that has already been enacted but has not yet entered into force

• Teleological: Explanation in accordance with the aim or purpose of the law

• Comparative: Explanation that ties in with the meaning of a relevant provision in a foreign legal system

• In conformity with treaty law: Explanation that departs from the original intent of the legislator, given in order to align the law with binding treaty obligations

Classical methods of interpretation

Defined by Von Savigny

• Textual

• Systematic

• Historical

• Teleological

Effective protection by ECtHR

• National protection must go beyond mere lip-service

• Look behind appearances: take position of individual seriously and analyse potential restrictions from his/her perspective

• But convention is a system of collective enforcement of multiple countries

• Convention is a living instrument/method of dynamic interpretation

Dynamic interpretation

• Interpret Convention in light of present-day context

• New Societal challenges = new approaches

• Look to MS - will try to respect what national courts are doing before it will replace what they are doing with their approach

Principle of subsidiarity

• Not a court of 4th instance

• The Court sometimes leaves a margin of appreciation to manoeuvre, fitting Strasbourg case law

Margin of appreciation

• Comparative: more consensus - narrower margin

• There are cases where interpreting and applying can yield multiple correct outcomes

• Margin is wider in sensitive areas: morality, ethics

It is used when the court has to consider the proportionality of an interference, when the rights have to be balanced against each other, when interference needs to be justified.

Looking at the text of ECtHR

Terms used in the Convention must be given an autonomous meaning, national law definitions are not determinative

• Keep the bilingual nature of the text in mind

• Apply particular provision in light of Convention read as a whole

Is there an interference structure

1. prescribed by law

2. pursues a legitimate aim

3. necessary in a democratic society

   1. relevant and sufficient

   2. pressing social need

   3. proportionate to the legitimate aim?

cummulative!

Research

Describing

Understanding

Explaining

Evaluating 

Legal research

Describing the law

Understanding the law

Explaining the law

Evaluating/criticising the law

In a systematic way

Types of research

Doctrinal legal research

Meta-legal research

Doctrinal legal research

Analyses applicable law, as laid down in written and unwritten national, European or international rules, principles, concepts, doctrines and case law, and as commented on in the literature

Description as the law “as it is” not ‘as it should be” - legal positivism

Characteristics

• Neutral, consistent and clear description of the law

• Placing new developments in the system of the law

• Building a system, advancing the coherence of law, confronting international wit national law, criticising if there is an imperfect system

Method: textual analysis, argumentation analysis, logic, confronting lower norms with higher norms, doctrinal comparative law

Linked to legal positivism: all law is created and laid down by human beings and that the validity of a rule law lies in its formal legal status, not its relation to morality or other external validating factors

E.g. Does the Dutch Constitution require the local authorities to provide homeless people housing?

Meta-legal research

Questions such as what is law, in what does the law differ from other sets of rules, why and when is it valid, and how does it develop // Approach to the study of law and legal processes which covers the theoretical and empirical analysis of law as a social phenomenon

Socio-legal research, empirical legal research, law and X research, theoretical research, normative legal research, critical legal research

Characteristics: 

• External perspective: non-legal lens to study the law

  • Social scientific lens

  • Economic lens

  • Historical lens

  • Philosophical lens

  • Normative approach

• Different type of RQ, methods and theories

E.g. How often do non-Dutch speaking law students in Groningen have leases that they cannot understand?

Research design

1. Identifying a research problem

2. Developing a research question and defining important concpets

3. Choosing the appropriate methods

4. Identifying, collecting and analysing data

5. Answering research question

Identifying a research problem

- Popular media: newspapers, television etc.

- Go to library: handbooks and commentaries

- Snowballing  checking references and finding new sources

- Specific scientific journals and PhD thesis

- Internet: academic blogs, websites of (non)governmental organisations

- Ask a researcher

Research Question

• A question

• Precise, clear, defined and limited

• Objective

• Embedded in theories and/or state-of-the-art research

• Original

• Clear in what you are going to do

Methods

The specific techniques to collect and analyse data e.g. literature analysis, case law analysis, statistics

Doctrinal legal research

• Textual analysis and interpretation

• Argumentation analysis and logic

Meta-legal research

• Doctrinal legal research methods +

• Empirical legal research methods

Empirical legal research methods

• Systematic collection of data based on observing what is going on in the legal world

• Quantitative methods - data with numbers

• Qualitative methods - interviews, observation, textual analysis

Comparative legal research methods

• Comparing legal research methods

  • Identifying similarities and differences

  • Explaining similarities and differences

  • Evaluating similarities and differences

  • Grouping legal systems in families of law

  • Searching common cores of legal system

• Doctrinal/meta-legal approaches in comparative law

Methodology

Overall approach and reasoning, the idea/principles why you choose specific methods

• Guides the thinking or questioning the field

• Doctrinal & meta-legal approaches

Data in doctrinal research

The law in the books

• Context dependent:

  • Written and unwritten

  • National, regional, international

  • Legislation/treaties/soft law, case law, parliamentary proceedings, principles, literature

Data in meta-legal legal research

Context dependent

• Empirical (law in action) sources: results from observation, interviews, surveys, etc.

• Doctrinal (law in the books): legislation, case law, literature etc.

Use insights from outside the legal discipline (external perspective)

Research design example housing

Identifying a research problem:

• Housing on an international level and ground level

Developing a research question and defining important concepts

• How can access to housing be conceptualised in human rights law?

• To what extent the regionalisation of housing legislation in Spain resulted in significant territorial differences regarding the traditional method?

Choosing the appropriate methods

• Systemic content analysis

• Meta-legal research:

Identifying, collecting and analysing data

• Establishing the research subject

• Identification of the legal rules

• Describing and interpreting

• Listing differences and similarities

• Comparing and explaining differences and similarities

• Assessing and evaluating differences and similarities

Answering research question

Theory in legal research

Theoretical basis which will inform how las is conceptualised in the project, what kinds of research questions, what data is examined

Conceptualisation

Theoretical lenses to understand the meaning of access to housing

• Physical barriers

• Human barriers

• Systemic or institutional barriers

Research design example alternative war on drugs

Identifying a research problem

• Human right to housing, human right to a fair trial

Developing a research question and defining important concepts

• To what extent is eviction used to combat drug-related crime in the Netherlands and the US?

Choosing the appropriate methods

• Doctrinal legal research methods

• Empirical legal research methods

• Comparative legal research methods

Identifying, collecting and analysing data

• From criminal law to evictions

• Logistic regression analysis: Predicting the probability that an evictee will win the case; Which factors are determinative?

• Comparing: mayors vs PHAs

Answering research question

Legal research definition

Systematic investigation or inquiry aimed at contributing to knowledge of a theory, topic, etc. by careful consideration, observation, or study of a subject. Research attempts to create order in the chaos that surrounds us.

Normative research

Prescriptive research, how law should be

Types of research questions

Descriptive/defining: how something is expressed, how it functions (effects of law) or how a certain phenomenon defined or classified in legal terms.

Comparative: addresses the differences and resemblances between certain concepts or between how something is regarded or expressed at different moments in time.

Evaluating: addresses the assessment and valuation of something. An answer to this type of question can lead to recommendations as to how a better legal arrangement can be achieved.

Explanatory: focuses on why something is as it is or on how it came about. this type of question therfore looks at causes, inter reltaionships and underlying motives or reasons.

Design: focuses on the making of something whereby you can achieve a desired situation

Predictive: addresses how something will be in the future

What does concept and conceptualisation mean?

Concept: term that expresses an abstract idea

Conceptualisation: researcher tries to capture the circumstances

Operationalising: the key terms and concepts

What does theory mean in terms of legal research?

Doctrinal legal theories

Micro-level theories

Grand theories

Normaitive theories

What methods are commonly used in doctrinal legal research?

Reading and interpreting legal texts

Comparison of these texts

Integrating a new legal or social development in positive law

Testing higher level against lower level law

Reviewing law against a normative framework

Exposing and creating argumentation structures