scholarly journals ROLE OF JUDGES’ DIALOG IN PROVING OF THE RULE OF LAW

Author(s):  
Ханлар Гаджиев ◽  
Khanlar Gadzhiev

The article discusses the problem of interpretation of the provisions of the European Convention on human rights by European Court of Human Rights, as well as the development of dialogue between judges of different levels, aimed at the formation of the European “common” law. Placing at the forefront the principle of the rule of law as the basis for all the guarantees of human rights, the author substantiates the necessity of the interaction of various levels courts, based on mutual respect, dialogue of the courts, what will undoubtedly lead to the enrichment of the legal system, searching for the most complete and effective regulation of social relations. According to the author, the effectiveness of interaction between courts is based primarily on a shared understanding of the importance of the activities of ECtHR judges in the development of common approaches to the protection of human rights and consolidation of the efforts in search of forming a common legal space. Using the example of some cases considered by the ECtHR, the article illustrated the options of interaction of the Court with national courts. The article reveals some problematic issues in the activity of the ECtHR, in particular the lack of involvement the principle of harmonious interpretation.

Author(s):  
Andrew Yu. KLYUCHNIKOV

The article is devoted to the principle of the rule of law, implemented through the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. (Convention) by the European Court of Human Rights (ECHR). The relevance of studying this principle is due to the new approach formed by the Court that the rule of law is “inherent in all articles of the Convention.” We can see its application in the current case-law of the Court as one of the fundamental elements of the independence of national courts. Thus, the author aims to identify the theoretical and practical aspects of the ECHR’s approach to the problem of judicial independence and legal application of the rule of law principle, to study the relevant Court practice. The rule of law and the independence of the judiciary as the basic elements of the convention system are an integral part of the institution of the “European public order” developed by the ECHR, therefore it is necessary to trace their interconnection. The case-law of the ECHR served as the material for the study, which allowed us to identify all stages of the formation of the rule of law principle and its actual “content”. Analyzing judicial practice, along with using doctrinal approaches, we managed to identify the limits of permissible application of national laws, the powers of bodies and officials of various branches of government, bodies of the judicial community to the given problem, new aspects of the status of judges seen as one of the democratic values of society. To achieve this, the author used methods specific to studies of law and general scientific (traditional) research methods, with an emphasis on comparative and general legal methods, and the method of induction during the analysis of judicial practice. The paper examines the normative sources of law and judicial practice of the ECHR, allowing to reveal the principle of the rule of law, its correlation with the principle of judicial independence, the specifics of its impact on the domestic national judicial system and the functioning of the state apparatus, to determine the role of the principle in the convention mechanism of the protection of human rights.


2018 ◽  
Vol 31 (2) ◽  
pp. 335-361
Author(s):  
BJÖRNSTJERN BAADE

AbstractThis article argues that understanding the role of the European Court of Human Rights (ECtHR or the Court) to be that of a guardian of discourse would respect legitimate disagreement among pluralist democracies, while enabling the Court to safeguard human rights in a meaningful and effective way.From the European Convention on Human Rights (ECHR or the Convention) and the Court's jurisprudence, three basic standards of review can be distilled: First, wherever the Convention's requirements are sufficiently concrete, the Court holds contracting states to well-established standards. Second, when applying broad, abstract and relative Convention rights, the Court safeguards the practical rationality of a democratic decision-making discourse under the rule of law – a substantive review standard that is influenced by procedural factors. Third, the Court also needs to check the facts underlying the case, in order to render its control effective.By setting ‘soft’ precedent in the form of factors that guide future decision-making without entirely prejudging it, and by taking into account second-order reasons concerning its legitimacy to intervene, the Court is acting as a second player in states’ decision-making discourse. Its task is not to replace the institutions originally responsible for taking the decision, but to ensure that they conform to their own role.


Author(s):  
Egidijus Küris

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.


Author(s):  
Tomuschat Christian

This article examines the role of the rule of law and democracy in international human rights law. It discusses the legal nature and the formal recognition of the rule of law and democracy. It explains that that rule of law and democracy are elements that constitute essential pillars promoting real enjoyment of human rights but they are dependent on the general conditions prevailing within society. This article highlights the importance of the supervisory roles of international bodies in ensuring the effectiveness of the guarantees set forth in international instruments for the protection of human rights.


2013 ◽  
Vol 38 (1) ◽  
pp. 77-108 ◽  
Author(s):  
Laurence A. Groen

This note analyzes the functioning of the Russian judiciary on the basis of the European Court of Human Rights’ judgments in the cases of OAO Neftianaia Kompaniia Iukos and three of the company’s former leading executives, Mikhail Borisovich Khodorkovskii, Platon Leonidovich Lebedev and the late Vasilii Aleksanian. The analysis turns to the breaches by the Russian state of Articles 5 (right to liberty and security), 6 (right to a fair trial) and 18 (permissible restrictions to the rights guaranteed) of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, as established by the Court in the aforementioned cases, and the role of the Russian judiciary therein. In light of the fundamental flaws and structural nature characterizing the violations found, the conclusion is reached that the Russian judiciary (still) appears not to be entirely free from undue influence by the other branches of government.


Author(s):  
Victor Muraviov

The article is focused on the interaction between the Ukrainian courts of general jurisdiction and the Constitutional Court of Ukraine in the area of the protection of human rights. There is emphasized that their independent functioning does not provide for the efficient protection of individual rights and freedoms and significantly increases the number of the judicial recourses of the Ukrainian citizens to the European Court of Human Rights. Particular attention is paid to the role of the Constitutional Court of Ukraine in the protection of human rights, which combines the functions of the constitutional control and constitutional supervision. Its activities are focused on the official interpretation on the Constitution of Ukraine. Attention is paid to the list those who may bring the actions before the Constitutional Court, which includes apart from the state bodies the natural and legal persons. The is mentioning of the issues on initiating of proceedings before the Court. Also broadly is analyzed Constitutional Court’ activities concerning the interpretation of the Constitution in the light of the European Convention on Human Rights and other international agreements dealing with the protection of human rights. The article stresses on the contribution of other Ukrainian courts in the affirmation of the constitutional concept of the protection of human rights and freedoms in Ukraine. The majority of resolutions of such highest judicial body in the system of courts of general jurisdiction as the Supreme Court of Ukraine concern the judgments of the European Court of Human Rights. As it is emphasized in the article the independent functioning on the Constitutional Court and the courts of general jurisdiction does not provide for the cooperation between both branches of courts. Courts of general jurisdiction feel free as to the appeal to the Constitutional Court. Even when such appeals are directed to Constitutional Court the decisions of the letter are not binding to the courts of general jurisdiction. Special attention is paid to the introduction of the institute of constitutional complaint and its positive effect on the judicial mechanism of the protection of human rights in Ukraine.


2018 ◽  
Vol 3 (1) ◽  
pp. 1-23
Author(s):  
Liza Chula

Human rights in Africa have gradually gained a place of recognition few could have foreseen only a decade ago. With the promotion and protection of human rights entrenched deep in the African Charter on Human and Peoples’ Rights, African states have a duty to uphold this principle in the larger goal of regional economic integration. The East African Court of Justice (EACJ), a regional court, has thus assumed the role of a watchdog in breathing life into these provisions, safeguarding the rule of law and ensuring everyone plays by the rules. It is unfortunate that these watchdogs can then lack the most important tool in steering the ship – jurisdiction. This paper, through a detailed analysis of literature review, tackles the pertinent question of whether the court has jurisdiction to handle human rights cases and arrives at the conclusion that an express mandate is lacking, but there is a somewhat implied mandate. Nonetheless, a clear articulation of the EACJ’s mandate is necessary to enable it to address issues effectively and efficiently.


Author(s):  
Oleh M. Omelchuk ◽  
Svitlana D. Hrynko ◽  
Alla M. Ivanovska ◽  
Anna L. Misinkevych ◽  
Viktoriia V. Antoniuk

The consolidation of the principle of supremacy in international documents is described. It is established that the rule of law in the work of the UN has become a subject of constant discussion. It has gained significant momentum since 2007, establishing itself as one of the most important areas of the organisation. UN documents define the rule of law as a principle or as a sphere of activity of the Organisation and member countries. In their report, the UN Secretary-General divides the rule of law into three sectors: the rule of law at the international level, the rule of law in the context of conflict and post-conflict situations, and the rule of law in the context of long-term development. The UN Secretary-General’s annual reports continue to work to promote the rule of law at the national and international levels. UN activities and documents demonstrate that strengthening the rule of law at the international level is impossible without the promotion, observance, and implementation of international treaties, the settlement of disputes by peaceful means, and the protection of human rights that are inextricably linked to the rule of law principle. Areas of activity that strengthen the rule of law are identified. The content of the resolutions “ Rule of Law at the national and international levels” was analysed, based on the results of generalisation of the content and direction of the sessions of the General Assembly during the last fifteen years, the directions of activity within this framework were determined. The rule of law is recognised as one of the fundamental principles of the European Community and enshrined in its regional acts. The elements of the principle of the rule of law are identified based on the results of generalisation of the case law of the European Court of Human Rights. It is established that in the European region a great role in the development and interpretation of the concept of the rule of law is played by its judicial interpretation, which is engaged in by two international judicial institutions: the ECtHR and the European Court of Justice. The rule of law is represented in the work of the Organisation for Security and Co-operation in Europe (OSCE) and plays a significant role in the promotion and protection of human rights. A significant contribution to the development of regulations for the implementation of the rule of law at the international level was made by the International Non-Governmental Organisation “World Justice Project”, which developed in 2010 the Rule of Law Index. The indicators of measuring the rule of law index in the country are characterised and their analysis in the dynamics at the international level and the distribution of the rule of law index by factors in Ukraine


Author(s):  
Olga T. Tur ◽  
Marta B. Kravchyk ◽  
Iryna Yu. Nastasiak ◽  
Myroslava M. Sirant ◽  
Nataliya V. Stetsyuk

National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations


Sign in / Sign up

Export Citation Format

Share Document