Key element of any governing system is the demand that it secures an adequate balance between individual freedom and the common needs of security and safety of all members of the community. Also, mechanisms aimed at a fair adjudication of justice are often seen as central parts of a rule of law based governing system and as necessary parts thereof in order to acquire legitimacy and acceptance by the members of society. The right to personal liberty and security, the right to a fair trial and the right to an effective remedy in case of a human rights violation are cornerstones of both European and international human rights law.
As the post-9/11 era makes quite clear, all societies and governments are faced with an urgency and an obligation to protect the members of society against (organized) crime, violence and acts of terrorism. Offering this protection while at the same time securing fair trial rights, safeguarding against arbitrary deprivation of liberty and respecting the right to privacy is a challenge. Measures to enhance security may all to easily lead to an undermining of the rule of law. In this course we will explore various human rights standards in the field of security and criminal justice. 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.
What kind of guidance do human rights standards have to offer in order to find a balanced way out of this labyrinth? And what challenges are there for an international human rights tribunal, 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.
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
10 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.
Assessment method
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: This course description has been updated to the best of our knowledge at the current time of publishing. Due to the evolving nature of the Covid 19 pandemic and possible changes in lockdown regulations, however, all information contained within this course description is subject to change up to 1 September 2020. Since it is uncertain how the Covid 19 pandemic will develop after 1 September 2020, further changes to the course description may be unavoidable. However, these can only be made in the event of strict necessity and only in the circumstances where the interests of the students are not impinged. Should there be a need for any change during the duration of the course, this will be notified to all students in a timely manner and will not be to the prejudice of students. Modifications after 1 September 2020 may only be done with the approval of the Faculty Board.