'Important research that is relevant for both legal scholars and practice'
On 13 September, Tess de Jong will defend her PhD Thesis ‘Procedurele waarborgen in materiële EVRM-rechten’ at the Academy Building of Leiden University, Rapenburg 73, at 16.15. The supervisors are Tom Barkhuysen and Ymre Schuurmans, both professors at Leiden University.
Procedural positive (indirect) obligations
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) contains explicit procedural requirements such as the right to a fair trial (Article 6) and the right to an effective remedy (Article 13). However, the procedural requirements which the Member States are obliged to observe in their national procedures do not appear to be limited to these explicit procedural requirements. More substantive rights such as the right to life (Article 2) and the right to respect for private and family life (Article 8) also entail positive procedural obligations for the Member States. The first goal of this study is to provide an overview of the procedural safeguards which the European Court of Human Rights (ECtHR or Court) has recognised under the more substantive ECHR provisions. The second goal is to monitor the review of the Court in order to examine whether more indirect procedural requirements can be derived thereof. In addition, the possible added value of these safeguards and the implications with regard to the procedural requirements of Articles 6 and 13 ECHR are considered for both the more explicit procedural safeguards as well as the indirect procedural implications.
A severe interference requires more procedural requirements
This study has shown that the more severe the interference in the ECHR right, the stricter the Court will apply the procedural safeguards (as part of the more substantive ECHR rights, see above). The Court will pay special attention to these safeguards when there is a ‘vital interest’ at stake and the potential harm could be irreversible. Moreover, being part of a vulnerable group (i.e. minor children, refugees, Roma) could also mean that the national authorities (judges and the executive authorities) should do their utmost in carrying out their procedural obligations. Throughout this study it has become clear that not only the national judges are obliged to fulfil the additional procedural obligations belonging to substantive Convention rights, but that also the executive authorities have to act and react in order to offer the applicant effective protection under the Convention. To conclude: it is possible that a more uniform national administrative law procedure could conflict with the more ‘individual-oriented approach’ of the Court when it comes to the adjudication of Human Rights. Therefore the national administrative law should provide some space to differentiate between the different cases, especially when severe interferences including potential irreversible consequences are involved.
About the author
Tess de Jong is currently working as a policy maker at the Ministry of Public Health, Welfare and Sport in The Hague.
Professor T. Barkhuysen about Tess de Jong
“Tess de Jong has carried out very important research that is relevant for both legal scholars and practice. Her research can contribute to fairer administrative and judicial procedures in the Netherlands. She is the first person to have examined integrally whether besides the current acknowledged procedural obligations, other obligations can arise from the European Convention for the Protection of Human Rights and Fundamental Freedoms. This is all the more innovative since she also used as a source of inspiration the way in which the European courts review the cases that come before them. In the case of proceedings in Dutch courts, the lesson learned is that the more fundamental the interest, or the more vulnerable the person involved, the more vigilant and in-depth the procedures should be. This is exciting since at present often only one standard procedure applies.”
“Tess has brought a difficult research project to a very good conclusion. She has performed a huge amount of work and presented her outcomes in a clear and structured manner in her doctoral thesis. Her book is highly significant for legal scholars and practice.”