scholarly journals The Assessment of Judicial Independence Following the CJEU Ruling in C-216/18 LM

2021 ◽  
pp. 403-430
Author(s):  
Stanisław Biernat ◽  
Paweł Filipek
Keyword(s):  
Rule Of Law ◽  
Judicial Independence ◽  
Fair Trial ◽  
Prison System ◽  
The Rule Of Law ◽  
Eu Countries ◽  
Judicial Practice ◽  
Court Of Justice ◽  
The One ◽  
The Right

AbstractIn the LM ruling, the Court of Justice developed the Aranyosi and Căldăraru test and indicated it as the one to be applied for the assessment of judicial independence and fair trial guarantees in the context of executing European Arrest Warrants. Although serious threats to the rule of law and judicial independence in some EU countries, like Poland, have been documented over recent years, no warrant has so far been definitely rejected as a consequence of the application of the LM test, although there are cases in which the execution of warrants to Poland has been suspended. This naturally raises questions as to whether the mechanism proposed by the Court responds to the need of protecting the right to a fair trial and safeguarding judicial independence. In this contribution we evaluate the mechanism devised by the Court, taking into account the available judicial practice after the LM ruling. We point out that the almost automatic transfer of a mechanism proposed to evaluate the functioning of a prison system to that evaluating a fair trial and judicial independence has not been fully successful. The mechanism proposed by the Court reveals a number of problematic issues and proves to be insufficient and not entirely adequate to assess judicial independence and guarantees of a fair trial.

scholarly journals The independence and impartiality of the hybrid CETA Investment Court System: Reflections in the aftermath of Opinion 1/17

2020 ◽  
Author(s):  
Maria Fanou
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Judicial Independence ◽  
Court System ◽  
Eu Law ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Right ◽  
Right Of Access ◽  
The Eu

In its recent Opinion 1/17, the Court of Justice of the EU (CJEU) examined the compatibility of an external judicial body, the Investment Court System (ICS) under the EU–Canada Comprehensive and Economic Trade Agreement (CETA), with EU law. At a time when judicial independence has arisen as one of the main challenges for the rule of law in the EU, this article discusses the Court’s findings in relation to the compatibility of the ICS with the right of access to an independent and impartial tribunal.

scholarly journals The Rule of Law, Fair Trial and Human Dignity: The Protection of EU Values After LM

2021 ◽  
pp. 431-442
Author(s):  
Catherine Dupré
Keyword(s):  
Rule Of Law ◽  
Human Dignity ◽  
Judicial Independence ◽  
Fair Trial ◽  
Mutual Trust ◽  
The Rule Of Law ◽  
The Right ◽  
The Relationship ◽  
The Eu

AbstractThe 2018 CJEU ruling in LM highlighted the importance of judicial independence for the rule of law and protection of the right to fair trial. In so doing, the judgment raised problematic questions about the relationship between Article 2 values and the EU Charter rights, and their connection with mutual trust. This chapter considers these issues through the lens of human dignity, which is both the first foundational value under Article 2 and the first right in the EU Charter. By discussing how the LM judgment raises the constitutional status of the right to a fair trial, this chapter argues that a focus on human dignity could effectively link Article 2 values with EU Charter rights and facilitate assessment of their respective breach.

Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM

2018 ◽  
Vol 9 (3) ◽  
pp. 353-365 ◽  
Author(s):  
Petra Bárd ◽  
Wouter van Ballegooij
Keyword(s):  
Member State ◽  
Rule Of Law ◽  
Mutual Recognition ◽  
Judicial Independence ◽  
Fundamental Rights ◽  
Judicial Cooperation ◽  
The Rule Of Law ◽  
State Compliance ◽  
The Right ◽  
The Eu

This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule of law problem. This implies that executing judicial authorities should freeze judicial cooperation in the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member State compliance with democracy, the rule of law and fundamental rights. The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the judicial test developed in the Aranyosi case now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

scholarly journals Opinions on the Legal Significance of the Right to Health

2021 ◽  
Vol 27 (2) ◽  
pp. 116-120
Author(s):  
Teodora Aurelia Drăghici ◽  
Gabriel Cătălin Predescu
Keyword(s):  
Health Care ◽  
Rule Of Law ◽  
Right To Health ◽  
Fundamental Rights ◽  
The Other ◽  
The Rule Of Law ◽  
Right To Health Care ◽  
Other Hand ◽  
The One ◽  
The Right

Abstract The legal significance of the right to health care, in particular and of other fundamental rights in general, on the one hand unknown to citizens and on the other hand known, minimized or ignored by state authorities and institutions, will certainly lead to abuses of law coming from the latter, abuses that cannot be tolerated by the rule of law.

Infringement Procedure in the European Union. The importance of the preliminary procedure

2021 ◽  
Vol 65 (04) ◽  
pp. 144-146
Author(s):  
Sevil Əliheydər qızı Dəmirli ◽  
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
European Court Of Justice ◽  
European Law ◽  
The European Union ◽  
Important Place ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
Court Of Justice ◽  
European Court

Judicial practice formed in the practice of the European Court of Justice belongs to the category of the main sources of law of European law. This practice was the source of law referred to by all Member States and their respective judicial authorities. The article discusses the important place of the preliminary proceedings in the case of violation of the contract by the Court. In practice, the proper conduct of preliminary proceedings shows that court time is used effectively in many disputes. This reflects the European Court's exceptional legal role in ensuring the rule of law and its direct force. The article can be used by university students, teachers, lawyers, researchers, European legal scholars and other practitioners Key words: contract violation, the preliminary proceedings, procedure, European Comission, European Court of Justice

16. Equality before the law—the right to a fair trial

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
United Nations ◽  
Rule Of Law ◽  
Fair Trial ◽  
Presumption Of Innocence ◽  
The Rule Of Law ◽  
The United Nations ◽  
The Law ◽  
The Right

This chapter discusses the right to be recognized as a person before the law; the equality of persons before the law; the prohibition on retroactive penal legislation; the position of courts under the law; the presumption of innocence; and those rights that accrue primarily to accused persons. It argues that the right to equality before the law is one of the major embodiments of the freedom from discrimination advocated by the United Nations. The right to a fair trial and the equality of arms of parties to a legal dispute are fundamental to the operation of the rule of law.

Russian ‘Liberal’ Opposition: The Divide Be-Tween ‘Radicals’ and ‘Moderates’?

2013 ◽  
Vol 9 (1) ◽  
pp. 63-70
Author(s):  
Anna Taitslin
Keyword(s):  
Rule Of Law ◽  
Private Property ◽  
Sufficient Condition ◽  
Necessary And Sufficient Condition ◽  
Social Consensus ◽  
The Rule Of Law ◽  
The One ◽  
The Right ◽  
Necessary And Sufficient ◽  
Party State

The paper reflects on the divide emerged amidst the liberal opposition in Russia between the left liberals and the right liberals. The divide is not just about split-up between the radicals and the moderates. It re-flects the crisis of liberal ideas as formed in the 1990s, when the tran-sition to economy based on private property was seen as necessary and sufficient condition for dismantling the command economy and the one-party state. The ultimate issue at hand is the notion of the rule of law and a possibility of wider social consensus on the minimal rule of law threshold.

Judicial Independence: The Threat from Within

2005 ◽  
Vol 38 (3) ◽  
pp. 120-153 ◽  
Author(s):  
Michal Agmon-Gonnen
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Justice System ◽  
Due Process ◽  
Judicial Independence ◽  
Judicial System ◽  
The Rule Of Law ◽  
Number Of Factors ◽  
The Right ◽  
Democratic Country

In a democratic country an independent justice system plays a major role in protecting human rights and the rule of law. However, an independent judicial system is at risk from a number of factors that derive from outside the sytsem as well as from within. The external dangers facing judicial independence are often discussed; whereas the internal perils that weaken the system as well as judicial independence, are far less known. This article will focus on the danger from within and will discuss the judicial administration's influence on human rights, specifically the right to due process under the law.

Saving Judicial Independence: A Threat to the Preliminary Ruling Mechanism?

2021 ◽  
pp. 1-27
Author(s):  
Charlotte Reyns
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Case Law ◽  
Preliminary Ruling ◽  
The European Union ◽  
The Rule Of Law ◽  
Court Of Justice ◽  
The Eu

Admissibility of questions for preliminary ruling – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as Dorsch Consult criterion under Article 267 TFEU – Independence of courts and tribunals in the case law of the Court of Justice of the European Union as element of the Rule of Law value under Article 19 TEU – Structural inadmissibility of questions for preliminary ruling as perverse consequence of the attempts to safeguard independence of the EU judiciary

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