Categories of rights and justification

Question 1

What are the different categories of rights?

Answer 1

1. Absolute and notstandfest:
   - Art. 15(2)
   - No derogation ever!
2. Absolute and not notstandfest:
   - Derogation permitted in wartime
   - Art. 4(2)(3)a
3. Non absolute with specific limitations:
   - Art. 2(2), 5
4. Non absolute with general limitations:
   - Art. 8, 9, 10, 11
5. Non absolute without specific limitations (with inherent limitations):
   - Art. 6(1), 12 and 14

Question 2

What is the structure of the court when dealing with justifications?

Answer 2

1. Scope:
   - Does the complaint fall within the scope of the article?
   - Has there been an interference?
2. Lawfulness:
   - Basis in national law
   - Accessible
   - Foreseeable
3. Legitimate aim
4. Necessary in a democratic society:
   - Pressing social need
   - Proportionality

Question 3

Basis in national law?

Answer 3

1. Does not need to be written
2. Can be case law
3. Must be general and abstract (not an admin. decision)

Question 4

Accessibility

Answer 4

1. Publication

2. Not always so strictly interpreted

Question 5

Foreseeability

Answer 5

1. The rule must be formulated with sufficient precision so that citizens can regulate their conduct accordingly and foresee the consequences of their actions

Question 6

Necessary in a democratic society?

Answer 6

1. Pressing social need:
   - Based on facts
2. Proportionality:
   - Interference v. aim
   - Based on facts, again

Question 7

Margin of Appreciation

Answer 7

1. Depends on:
   - Category of the right
   - NO/PO
2. Existence of a common consensus:
   - On the nature of the brim pursued
   - On the reasonableness of the limitation itself (without the aim)
3. Nature of the applicant’s activity and the interests protected:
   - Is the core of the right involved?
   - Are intimate or key rights involved?
4. In context