EU law exam tips.docx - The institution Human right Single...

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The institutionHuman rightSingle marketFreedom of goods, workers serives,freedomPart A - 4 questionsPart B - 4 questionsFree movement of goods, workers, freedom of establishments,provide services Part AOnly problem questions1 part A and 1 Part BThird question- your choice3 questions should be answeredII. The substantive questionsAfter having considerably expanded the scope of Article 8, the court gradually leads to the statebeing obligated to adopt a liberal position on assisted suicide (followed by euthanasia because thetwo acts are not always easily distinguishable). However, the legal basis of this new right remainsunclear. Its recognition seems to establish a new hierarchy of rights, which reveals a new perceptionof human dignity. Although progressive and liberal, and corresponding in this way to a wide spreadform of aspiration in modern Western society, this judicial construction must be examinedthoroughly, not only concerning the role of the court, which should only be subsidiary (C), but alsowith regard to the letter and the spirit of the Convention (B) and, first of all, as to the existence of alegal basis on which to pose this subtle construction (A). A. The assertion of a conventional materialright by the procedural obligations The recognition of a right to assisted suicide was obtained by theperipheral obligations that guarantee, not the substantive right to assisted suicide but the proceduralright to know if one is capable of legally exercising this right. However, the violation of the proceduralright implies the existence of a substantive right to which it is accessory. The Haas, Koch and Grosscases claim not to have reached this conclusion while leading thereto by induction. Therefore, we
will attempt to clarify the issue of the legal basis of the individual right to assisted suicide. TheInternational Journal of Human Rights 743 Downloaded by [Cardiff University Libraries] at 20:57 19December 2017 A conventional procedural obligation is, by nature, an accessory of the principalmaterial right, not an independent right: it requires states to guarantee the means of access to theeffective enjoyment of the material right41 in order to avoid its remaining theoretical and illusory.42Therefore, the involvement of the procedural obligations arising from the Convention requires theprior existence of a main material right supporting the accessory obligation. This main obligation canresult either directly from the Convention (autonomous conventional obligation), or solely fromdomestic law, provided it enters the scope of the Convention (conditional obligation), or from thetwo legal orders (the most frequent case). In the Haas case, the court held that Switzerland had theobligation ‘to establish a procedure capable of ensuring that a decision to end one’s life does indeedcorrespond to the free wish of the individual concerned’ (para. 58) in order to prevent the ‘individualfrom taking his or her own life if the decision has not been taken freely and with full understanding

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