Changing the rules mid-game. Legislative interference in specific pending cases: separation of powers and fair trial

ICL Journal ◽  
2010 ◽  
Vol 4 (1) ◽  
Author(s):  
Anna Jasiak
Keyword(s):  
Rule Of Law ◽  
Ad Hoc ◽  
Separation Of Powers ◽  
Fair Trial ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
European Court ◽  
Judicial Proceedings ◽  
The Right ◽  
The U.S

AbstractLegislatures sometimes interfere in judicial proceedings when they expect the outcome to be politically undesirable. The resulting ad hoc laws are applicable in cases known in advance, although they may appear to be neutral, general and prospective. Such laws force the courts to decide the case in favor of the State, making continued litigation pointless for the other party. Legislation of this kind may seriously threaten the rule of law, fundamental rights, including the right to a fair trial and the separation of powers. In this article, recent examples will be presented, explaining and comparing the position of the European Court of Human Rights and the U.S. Supreme Court.

scholarly journals Komentarz na kanwie Uchwały Naczelnego Sądu Administracyjnego I FPS 1/21 – sądowa kontrola instrumentalnego wszczęcia postępowania karnego skarbowego a prawo do sądu

2021 ◽  
Vol 3 (31) ◽  
pp. 151-162
Author(s):  
Adam Szymacha ◽  
Kamil Rogalski
Keyword(s):  
Rule Of Law ◽  
Comparative Law ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legal Method ◽  
The Right ◽  
The Impact

The purpose of the article/hypothesis: The presented article focuses on a new resolution of the Supreme Administrative Court I FPS 1/21. In this resolution an assessment of instrumental initiation of criminal fiscal proceedings in order to suspend the running of the limitation period of a tax liability has been undertaken. The Supreme Administrative Court assessed that administrative courts have the right to examine the legitimacy of initiation of such proceedings. This position is important insofar as it also touches upon the issue of the right to a fair trial, as well as the right to property and legal certainty. The main aim of this article is to check the impact of this resolution on described fundamental rights. Methodology: This article will use the comparative law method. Especially the case law of different courts will be shown. The dogmatic-legal method will also be used as an auxiliary. Results of the research: This resolution is crucial for the fundamental right for fail trial. It has also impact on the right to property and principle of legal certainity. It may also be some element that strengthens the rule of law.

scholarly journals Principle of the Rule of Law in the Case-law of the European Court of Human Rights

1970 ◽  
pp. 373-379
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Fair Trial ◽  
Court Decisions ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
European Court ◽  
The Law ◽  
The Right

The article is devoted to the interpretation of the principle of rule of law in the practice of the European Court of Human Rights. The concept of the rule of law, along with democracy and human rights makes up the three pillars of the Council of Europe and is endorsed in the Preamble to the ECHR. The Preamble to the ECHR states that the governments of European countries are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. The rights most obviously connected to the rule of law include: the right of access to justice, the right to a fair trial, the legal principle that measures which impose a burden should not have retroactive effects the right to an effective remedy, anyone accused of a crime is presumed innocent until proved guilty etc. The author concludes that there is an expediency of grouping separate requirements of the rule of law in the practice of the ECtHR around concepts, which are concluded to be elements of the rule of law in a democratic society. Such elements of the rule of law in the practice of the ECHR are recognized as legality, legal certainty, fairness of a trial and the priority of human rights. Legality supposes that authorities need a legal basis for measures which interfere with a right of an individual, as well as quality requirement for the law such as accessibility, foreseeability and no arbitrariness. Legal certainty encompasses foreseeability in application of the law; non-retroactivity of legislation; the principle of res judicata; mandatory execution of court decisions and consistency of judicial practice. Fair trial requirements devoted into two groups: general requirements (access to court, independent and impartial tribunal, execution of court decisions etc.) and requirements for criminal proceedings (presumption of innocence, principle nullum crimen sine lege etc.) It is noted that the legality, legal certainty, fairness of a trial are formal requirements of the rule of law, thus the priority of human rights is a substantive (material) requirement of the rule of law. The aforementioned testifies to the natural-legal approach that the ECHR is guided by in interpreting the rule of law in its practice, understanding it primarily as the rule of human rights.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

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.

Domestic Infringements of the Rule of Law as a European Union Problem

2018 ◽  
Vol 64 (4) ◽  
pp. 552-560 ◽  
Author(s):  
Marek Safjan
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Fundamental Rights ◽  
The Rule Of Law ◽  
Communist System ◽  
Domestic Legislation ◽  
Charter Of Fundamental Rights ◽  
New Type ◽  
The One ◽  
The Eu

In some countries of central Europe the rule of law is directly threatened by a new type of legislation based on the zeal of the political majority to establish a completely different political system than the one that was built after the collapse of the communist system. From that perspective, there is little place for the principle of separation of powers and the independence of the judiciary is threatened. This contribution discusses the multilevel dimension of the rule of law principle in the EU, issues in the context of the disrespect for the rule of law as a case of systemic deficiencies, followed by a brief discussion of the Copenhagen accession criteria. The article concludes that the rule of law principle as recognised under EU law is by no means of a merely symbolic nature, and that domestic legislation abolishing key safeguards of the rule of law can be scrutinized not only under the EU Charter of fundamental rights, where applicable, but also under the TEU. Without the solidarity of all Europeans, however, the preservation of our basic values and the future of the EU are in serious danger.

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.

scholarly journals GOOD GOVERNANCE AND THE RULE OF LAW

2013 ◽  
Author(s):  
Nik Ahmad Kamal Nik Mahmod
Keyword(s):  
Corporate Governance ◽  
Private Sector ◽  
Rule Of Law ◽  
Good Governance ◽  
Fundamental Rights ◽  
Public And Private ◽  
Abuse Of Power ◽  
The Rule Of Law ◽  
The Common ◽  
The Right

Good governance is basically governing in the right and just ways. Good governance relates to good administration at both public and private sectors. Corporate governance is synonymous and the common usage in the private sector. Common characteristics of good governance include transparency, accountability, participatory and rule of law. Rule of law is the focus of this paper. The principle in itself is problematic because of multifarious interpretation Nonetheless, the consensus has been that rule of law is essential in any government and breach of its principles may lead to arbitrariness and breach of fundamental rights. The paper will expound the roles of rule of law in ensuring good governance and how abuse of power and corruption have undermined rule of law seriously and subsequently affect good governance.

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.

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.

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