scholarly journals The Role of Civil Society in Monitoring the Executive in the Case-Law of the European Court of Human Rights: Recasting the Rule of Law

2021 ◽  
Vol 17 (2) ◽  
pp. 102-115
Author(s):  
Aikaterini Tsampi
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Rule Of Law ◽  
Case Law ◽  
The Rule Of Law ◽  
European Court

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

scholarly journals A Judicial Review of the De Facto Detention of Foreigners in Turkey

2020 ◽  
Vol 10 (2) ◽  
pp. 143-153
Author(s):  
Gamze Ovacik
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Framework ◽  
Court Decisions ◽  
Administrative Practices ◽  
The Rule Of Law ◽  
European Court ◽  
Domestic Law

The term, de facto detention, refers to instances in which foreigners are held or deprived of their liberty usually with a view to preventing their entry into a country or expelling them from a country, but without implementing a legally prescribed detention regime that satisfies the criteria of the rule of law. The first type of de facto detention occurs when provisions regulating detention are absent or deficient in the legal framework. The second type takes place when domestic law sufficiently regulates detention regimes; however, the law is not duly implemented in practice. This article examines judicial practices in Turkey in both categories of de facto detention, analysing 37 Turkish court decisions with supporting case law from the European Court of Human Rights. Focusing on case law makes it possible both to track deficiencies in administrative practices and to analyse judicial response as a tool for rectifying unlawful administrative practices.

scholarly journals The Changing Role of Nordic Courts

2021 ◽  
pp. 167-183
Author(s):  
Martin Sunnqvist
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Nordic Countries ◽  
Constitutional Rights ◽  
Supreme Courts ◽  
The Rule Of Law ◽  
Changing Role

AbstractThe Supreme Courts in all the Nordic countries reserve, and exercise, the power to set aside unconstitutional laws. In this way, they protect the rule of law and the human rights that are enshrined in their national constitutions. However, they go about this in different ways and treat different constitutional rights in ways distinct from one another. In this chapter, I discuss the development of the diversified judicial review of legislation in the Nordic countries. I also discuss the independence of their judiciaries in the light of the latest developments in Europe. Finally, I discuss the importance of developing standards for the interpretation of case law on these constitutional issues. Recent development brings with it two consequences for Nordic courts: the task of assessing the independence of judiciaries in other EU states, and questions about how the rule of law and the independence of the judiciary can be strengthened at home.

scholarly journals Why Attacks on Civic Space Matter in Strasbourg: The European Convention on Human Rights, Civil Society and Civic Space

2019 ◽  
pp. 13-37
Author(s):  
Antoine Buyse
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Case Law ◽  
European Convention ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
European Court ◽  
Civic Space ◽  
Work First

This article explores the role of the European Convention on Human Rights in addressing the issue of attacks on civic space, but also the potential effects of shrinking civic space on Strasbourg’s work. First, an overview of the notions of civil society and civic space is given, linking these concepts to democracy and human rights. Subsequently, the formal and informal roles for civil society in the judicial decision-making are discussed. Finally, the substantive protection offered to civil society and civic space under the ECHR and the case-law of the European Court of Human Rights is analysed. This article argues that the differentiations in theory on the varying contributions of civil society to democracy and human rights are to a large extent reflected in Strasbourg jurisprudence. Even more importantly, the ECHR system and civil society benefit from each other. This is why the current attacks on civic space are not just a problem for civil society itself, but also for the work of the European Court: it is submitted that a shrinking of civic space can also negatively affect the Strasbourg system, as the two are intertwined to a considerable extent.Received: 06 July 2019Accepted: 10 October 2019Published online: 20 December 2019

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

Lustration and Lapse of Time

2008 ◽  
Vol 4 (3) ◽  
pp. 460-487 ◽  
Author(s):  
David Kosař
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Transition To Democracy ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
European Court ◽  
Basic Features

Czech Lustration Acts: basic features – Among the most far-reaching in the postcommunist countries in Europe – Challenges for the rule of law – 2001: Czech Constitutional Court upholds their validity – Case-law of the European Court of Human Rights – ‘Transition-to-democracy’ circumstances that justified their adoption have ceased to exist

THE RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

2021 ◽  
Vol 7 (4) ◽  
pp. 196-219
Author(s):  
Andrew Yu. KLYUCHNIKOV
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Case Law ◽  
European Convention ◽  
Current Case ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
European Court ◽  
Protection Of Human Rights

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.

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

2017 ◽  
pp. 0-0
Author(s):  
Ханлар Гаджиев ◽  
Khanlar Gadzhiev
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Relations ◽  
European Convention ◽  
The Rule Of Law ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Legal Space

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.

The ECtHR's Role as a Guardian of Discourse: Safeguarding a Decision-Making Process Based on Well-Established Standards, Practical Rationality, and Facts

2018 ◽  
Vol 31 (2) ◽  
pp. 335-361
Author(s):  
BJÖRNSTJERN BAADE
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Rule Of Law ◽  
Practical Rationality ◽  
European Convention ◽  
Decision Making Process ◽  
The Rule Of Law ◽  
European Court ◽  
Basic Standards

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.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

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