The Rule of Law is a concept of universal validity and has progressively become a dominant organisational model of modern constitutional law and international organisations to regulate the exercise of public power. The Rule of Law has been proclaimed as a basic principle at universal level by the United
Nations, and at regional level by the Council of Europe, the European Union, the Organization
of American States, and the African Union. A principle that needs to be adhered to by authorities in order to acquire legitimacy and acceptance by the members of society. The concept of Rule of Law is also closely linked to the protection of human rights. It requires a system of certain and foreseeable law, where everyone has the right to be treated by all decision-makers with dignity, equality and rationality and in accordance with the laws, and to have the opportunity to challenge decisions before independent and impartial courts through fair procedures. So, securing the Rule of Law demands mechanisms aimed at a fair adjudication of justice. And in that sense several standards of international and European human rights law ‘assist’ in securing the Rule of Law, e.g. the right to personal liberty and security, the right to a fair trial before an independent and impartial tribunal and the right to an effective remedy in case of a human rights violation.
In this course we will focus on the implementation of the Rule of Law within national legal systems especially in the area of criminal justice and constitutional and administrative law: what do notions like ‘fair trial’ and ‘independence and impartiality’ mean and what consequences do they have for the organization of the judiciary? We will also analyse the interaction between international human rights tribunals and the national legal systems: what challenges are there for a body like the European Court of Human Rights in standard setting in the area of fair trial and criminal justice through its case law when the legal systems of the State Parties have such different characteristics? A comparative approach may learn that what is a good and relevant fair trial requirement for one country, may not be as relevant or adequate for another.
Our analysis and understanding will be enhanced by concentrating on situations or contexts that pose a threat to the Rule of Law. It is a well-known fact that measures and policies to enhance security and combat terrorism may all to easily lead to an undermining of the rule of law. State practices and even UN measures in the fight against crime and terrorism put a strain on fair trial and habeas corpus rights. Surveillance operations by intelligence services are interfering with the right to privacy and the secrecy of telecommunications on a massive scale, affecting a range of other human rights as well. Some States have declared a state of emergency in reaction to terrorist attacks and have derogated from their obligations under international human rights law. In some other States the ruling political elite is quashing dissent by limiting the freedom of the media, by restraining academic freedom and by interfering with the independence of the judiciary What kind of guidance do human rights standards have to offer in order to find a balanced way out of this labyrinth and what kind of mechanisms do international and European organization apply in order to prevent the watering down of Rule of Law in member States?
Objectives
Students acquire a profound knowledge of and can articulate and compare the different human right standards governing the field of security and criminal justice and the way in which they are applied by different European and international human rights bodies;
students can articulate and analyse the structuring role of fair trial standards for the features of a democratic governing system;
students can articulate and analyse the ways in which current phenomena such as (the fight against) transnational organized crime and transnational terrorism cause strains in the protection of human rights, especially fair trial rights, both at the national and the supranational level;
students can analyse and evaluate in which ways competing interests in the field of security and criminal justice may be balanced within a rule of law and human rights framework.
students can assess the possibilities and limits an international human rights body encounters in its standard setting role, given the differences between the legal systems of the State Parties.
Mode of instruction
15 lectures/seminars of two hours
Names of lecturers: Dr. J.P. Loof, Dr. F.P. Ölçer
Required preparation by students: read the compulsory course materials; prepare questions and cases; prepare individual and/or group presentations; find and analyze additional materials to prepare for such assignments.
Obligatory course materials
Literature:
- All obligatory reading materials will be digitally available on Brightspace. The material includes judgments, parts of handbooks and case-law guides by the ECrtHR on the right to liberty and security and the right to fair trial, general comments of the UN Human Rights Committee and reports by other human rights bodies.
Reader:
- Course reader is available, to be downloaded from Brightspace
Assessment method (Caveat: the assessment methods may be susceptible to adjustment depending on the conditions set by covid-19 measures)
written exam at the end of the course, 75%
oral presentation of a comment on a judgment or view of a supervisory body or on a legal development, in groups of 2 to 4 students, 25%
Contact information:
Co-ordinator: Dr. J.P. Loof
Work address: Kamerlingh Onnes Building, Steenschuur 25, room C1.08
Contact information:
Telephone number: +31 (0)71 527 7711 / +31 (0)6 543 307 01
Email: j.p.loof@law.leidenuniv.nl
Institution/division
Institute: Public law
Administration advanced masters: BIO
Mrs. Mahshid Alizadeh (LL.M.): humanrights@law.leidenuniv.nl
Disclaimer
Currently these pages are being updated to reflect the courses for 2022 - 2023. Until these pages are fixed as per 1 September 2022 no rights can be claimed from the information which is currently contained within.
Should there be any future changes of the Covid 19 virus which may impinge our teaching and assessment, these could necessitate modification of the course descriptions after 1 September. This will only happen in the event of strict necessity and the interests of the students will be taken into account. Should there be a need for any change during the course, this will be informed to all students on a timely basis. Modifications after 1 September 2022 may only be done with the approval and consent of the Faculty Board and Programme Director.