3: The Scope of the Right to a Fair Trial and Due Process of Law Flashcards
standing
determination of whether a specific person is the proper party to bring a matter to the court for adjudication
you have standing if you can have a trial and whether the court will hear your case
standing in France
intérêt à agir
for CC, decision of whether the law is applicable to the case is a criteria to have standing
- if the law doesn’t apply to the case, there is no standing to challenge the law
broad interpretation of where you have intérêt à agir
de minimis non curat praetor
- matters that are too small and do not have a real issue cannot be brought to court
- minimum threshold and question of whether you have enough of a vested interest to bring the matter to court
standing in the US
one of the most confused areas of the law
- court plays with requirements to not take a stand on controversial/complicated issues
Article 3 requires that the court rules in cases or controversies so the need for a case or controversy
constitutional requirements for standing
- plaintiff suffered or imminently will suffer from injury
- injury is traceable to the defendant’s conduct
- favourable federal court decision likely to redress the injury
prudential requirements for standing
- asserting your own rights (no third-party standing)
- no generalised grievances (if the injury is the same as someone else’s, you cannot sue)
standing in the ECHR
Article 35: Admissibility Criteria
- exhaustion of domestic remedies
- 4 month time limit
- significant disadvantage or safeguard clause (similar to injury requirement)
safeguard clause as an exception
- need to have suffered a significant disadvantage or disrespect for HR as defined in the convention which requires an examination of the application on its merits
political question doctrine and immunities
if a case is deemed too political court cannot rule
circular reasoning
political doctrine is just subject matter deemed inappropriate for judicial review
- court tried to give definitions but they are unhelpful
political question doctrine and immunities in the US
basically political when it is not judicial
- no clear definition and just examples of when the court considers it too political
no consistent definition
e.g. impeachment as a political question and cannot rule on cases tried for impeachment and legality of the impeachment process
political question doctrine and immunities in France
acte de gouvernement cannot be subject to judicial review since they are too political to allow the judge to review them
- Article 16 and emergency powers
- acts that relate to the relationship between the executive and legislative, that relate to the relationship of the government with foreign nations or an international organisation
political question doctrine and immunities in the ECHR
if the court deems the convention inapplicable to the situation (if it doesn’t apply), then there is no case
flexibility in the notion of the margin of appreciation
- margin meaning that in some areas (usually the more political ones), states are free to decide as they see fit
- if it’s a political issue on a touchy subject, court usually decides that there is a margin of appreciation for states meaning that the right is protected but there is a range of ways to protect those rights
- scrutiny is less harsh
debate over the incorporation of the 14th amendment into the bill of rights
if only some rights are protected under due process, which ones?
total incorporationists vs. selective incorporationists
- total saying they want all the ones in the bill of rights to pertain to due process
- selective saying we need to pick and only some are relevant
federalism argument that total incorporation is bad since it means too much constraint on the state
- the more you recognise, the more power/authority to the court which goes against judicial restraint
almost all rights have been incorporated
- only 2 left are the fifth amendment’s right to grand jury indictment in criminal cases and seventh amendment’s right to jury trial in civil cases
state action doctrine in the US
fact that you have a right to the right provided in the bill of rights only when you have action from the state
discrepancy with the ECHR where they recognise state inaction as bad when it comes to fundamental rights
civil rights cases in 1883 where the court said hat congress had no authority to enact legislation against discrimination since the fourteenth amendment only prohibited state action and not private conduct
exceptions to the state action doctrine
- public function exception
- state cannot give up its duty to respect constitutional rights by giving up a public function to a private entity - entanglement exception
- act of a private person so intertwined with the action of the state
- cannot see if it is the person acting or the state acting
levels of scrutiny in Congress
law passed by Congress presumed to be constitutional and only in some areas should the court scrutinise law heavily (e.g. discrimination)
- deference of courts to Congress
- rational basis - is there a rational reason to enact legislation?
- applies to any case under due process/equal protection
- easy to pass this step
- law is upheld and deemed constitutional if rationally related to a legitimate government purpose - intermediate scrutiny
- gender discrimination, discrimination against non-marital children/undocumented alien children with regards to education, etc.
- law upheld if it is substantially related to an important government purpose - strict scrutiny
- discrimination based on race/national origin
- need for a compelling government purpose (if a less restrictive law achieves the same purpose, the law is unconstitutional)
- proportionality review in French/ECHR law
what does due process entail?
procedural due process: procedures the government must follow before it deprives you of life, liberty or property
substantive due process: question of whether the government has the right to take your life, liberty or property
requirements of procedural due process
- need a deprivation
- government negligence is typically not enough and you need some sort of positive action from the government that deprives you - deprivation has to be of life, liberty or property
- hard to define liberty/property - without due process of law
- procedures required in case of having a deprivation of life, liberty of property
- notice of the charge, opportunity for a meaningful hearing, impartial decision-maker
