Tuesday 18 December 2007, by Chalmers Damian
This briefing note considers the interaction between judges and legislators in the fields of the rights human dignity, the right of asylum, the right to data protection and procedural rights in penal matters. These rights, all set out in the European Union Charter of Fundamental Rights, have been given an added significance by the post 9/11 context, the extension of the Court of Justice’s fundamental rights case law to Title VI of the TEU and the likelihood that EU secondary legislation adopted since 2000 will be increasingly invoked in national courts.
Although there is a tendency to view fundamental rights as indefeasible, this paper will argue that their meaning and force is shaped very much by the predominant institutional contexts in which they are invoked. In this regard, it will suggest that the right to dignity is likely to be shaped by the powerful pressures of national courts into quite a pervasive right. The right to asylum is likely to be shaped by the extensive EU legislation in the field with its main effect being its use by national courts to curb national malpractice. The right to data protection is likely to be shaped by the terms of Directive 95/46/EC, but the extension of the Court’s case law on fundamental right to the third pillar is likely to see it increasingly invoked. Procedural rights in penal matters are likely to be strongly shaped by existing Court of Justice case law on the rights of defence.
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