Operationalizing and Measuring Rule of Law in an Internationalized Transitional Context: The Virtue of Venice Commission’s Rule of Law Checklist

2020 ◽  
Vol 13 (1) ◽  
pp. 59-94
Author(s):  
Qerim Qerimi
Keyword(s):  
Rule Of Law ◽  
International Community ◽  
Significant Part ◽  
Access To Justice ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Five Elements ◽  
Venice Commission ◽  
The Eu

AbstractThis article will seek to operationalize and measure rule of law primarily relying on the “Rule of Law Checklist,” developed by the Venice Commission, composed of the following five elements: (1) Legality; (2) Legal certainty; (3) Prevention of abuse or misuse of powers; (4) Equality before the law and non-discrimination; and (5) Access to Justice. Each of these elements will be operationalized in the context of Kosovo – the leading case study – with an ultimate aim of obtaining an enhanced understanding of the Rule of Law framework and its measurement in transitional contexts more generally. The underlying circumstances of the selected case are defined by an almost unparalleled involvement of the international community, in particular the UN and the EU, which forms a relatively significant part of the observable context.

scholarly journals Privatization of Civil Justice: Is it Undermining or Promoting the Rule of Law?

2020 ◽  
pp. 34-45
Author(s):  
Tatjana Zoroska Kamilovska
Keyword(s):  
Rule Of Law ◽  
Cost Effective ◽  
Access To Justice ◽  
Civil Justice ◽  
The Rule Of Law ◽  
Administration Of Justice ◽  
Public Resources ◽  
Public Commitment ◽  
Civil Justice System ◽  
The Eu

The crisis of civil justice system is present in many countries in the EU and worldwide and it takes different forms. In response, many different pathways are explored in order to overcome not only the growing sense of crisis, but also its manifestations. One of the suggested routes in the ongoing efforts to improve access to civil justice at the EU and national levels is the privatization of justice through the ADR mechanisms. In many areas, with the encouragement and support of governments and other policy-making bodies, the administration of justice is being encouraged to leave the courts for alternative forums. Thereby, the ADR are presented as mechanisms which are facilitating informal, fast, cost-effective and affordable access to justice, at the same time preserving public resources. Yet, in spite of these undeniable benefits, ADR mechanisms are subject of some doubts and expressed concerns. One of the major concerns, which has already sparked a wider debate, is whether the informal and private nature of ADR is hostile to the Rule of Law and ultimately to justice itself. Namely, if the privatization of civil justice is considered in the context of the fundamental public commitment to provide substantive justice on an equal basis to all citizens, the question arises whether the ADR mechanisms are capable to secure and foster the virtues of the Rule of Law (publicity, transparency, fairness, equality, etc.). The purpose of this paper is to contribute to this debate, renewing the interest in analysing the relationship between the privatization of civil justice and the concept of the Rule of Law. In the light of evolving social, economic and political circumstances, the paper attempts to answer the question whether the growing privatized dispute resolution landscape is undermining or promoting the rule of law.

The Efficacy of Traditional Dispute Resolution Mechanisms (TDRMS) in Achieving Access to Justice for Marginalised: A Focus on the Kipsigis Community in Kenya

2020 ◽  
Vol 8 (1) ◽  
pp. 149-171
Author(s):  
Joseph Sergon ◽  
Prof Albert Mumma
Keyword(s):  
Dispute Resolution ◽  
Rule Of Law ◽  
Access To Justice ◽  
Community Members ◽  
The Rule Of Law ◽  
Natural Justice ◽  
Study Approach ◽  
The Right ◽  
Formal Justice

The constitutional recognition of traditional dispute resolution mechanisms (TDRMs) legitimises them as complementary avenues to access to justice in Kenya. However, the lack of clarity regarding the scope of these mechanisms makes it difficult to integrate them with the formal justice systems. An understanding of how the mechanisms work is critical in addressing this lacuna. Using a case study approach, this Article discusses the typology of TDRMs in Kenya, and the disputes involved based on examples from the Kipsigis community. It also outlines the Kipsigis TDRM procedures in both criminal and civil cases. The article also discusses the issue of jurisdiction, various reporting and trial stages, whether there are any appellate bodies, enforcement of awards, compensation, and whether any cases have been referred to courts and vice versa. The purpose of the study is to lay a basis for the analysis of TDRMs from a natural justice perspective with the Kipsigis community as the point of focus. The study found that the Kipsigis TDRMs are considered effective avenues for access to justice for those who lack the means to access courts. The community finds the TDRMs fair as they listen to the parties in an open forum and community members are welcome to participate, unlike judicial processes, which are typically adversarial. Yet, a question arises whether TDRMs, by their nature, meet the principles of natural justice and the rule of law, particularly the threshold set for the protection of the right to a fair trial and equality. This article examines the extent to which the Kipisgis TDRMs blends with the principles of natural justice or procedural fairness, and the rule of law.

The Universality of the Rule of Law as an International Standard

2018 ◽  
Vol 51 (3) ◽  
pp. 469-483
Author(s):  
Terence Etherton
Keyword(s):  
Rule Of Law ◽  
Sustainable Development Goals ◽  
Secretary General ◽  
Constitutional Reform ◽  
Access To Justice ◽  
The Rule Of Law ◽  
Constitutional Principle ◽  
Development Goals ◽  
Venice Commission ◽  
Definition Of

In a report to the Security Council of the United Nations in August 2004 the UN Secretary General said that ‘the rule of law’ is a concept at the very heart of the UN's mission. In September 2015 the UN agreed a set of Sustainable Development Goals (STGs) for 2015–30, which came into force on 1 January 2016. Goal 16.3 of the SDGs enshrines a commitment by all UN members to ‘promote the rule of law at the national and international levels, and to ensure equal access to justice for all’. In March 2016 the Council of Europe's Commission for Democracy through Law, known as the Venice Commission, published a report which said that the rule of law is a concept of universal validity. It observed that in an increasing number of cases states refer to the rule of law in their national constitutions. The rule of law is expressly mentioned in a United Kingdom statute: section 1 of the Constitutional Reform Act 2005 says that the Act does not adversely affect the existing constitutional principle of the rule of law. The statute, however, does not contain any definition of the rule of law; nor does any other UK statute. There is no legally binding definition anywhere.

scholarly journals EU Equality Law

2018 ◽  
Author(s):  
Elise Muir
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
Domestic Sphere ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Central Case ◽  
New Generation ◽  
The Impact ◽  
The Eu

In the early days, a choice was made not to entrust the EU with competences allowing it to protect against violations of fundamental rights per se. This task was placed in the hands of the Council of Europe. Although this choice has not been called into question, the EU has developed a broad range of instruments to respond to the impact of its activities on fundamental rights and a mechanism for surveillance of compliance with the rule of law. One trend that has been subject to little attention, and to which this book is devoted, is the exercise by the EU of a new generation of competences that allow for the development of tools explicitly designed to flesh out as well as to promote selected fundamental rights. The exercise of such competences, of which EU equality law as it has blossomed since the late 1990s is the most ancient example and therefore the central case study, triggers a number of constitutional questions. The sophisticated and powerful infrastructure of the EU legal order is thereby used to promote a given conception of a fundamental right, to define how it relates to others, and also to elaborate mechanisms for these approaches to permeate domestic legal cultures. This monograph explores the implications of this very symbolic and equally sensitive form of law-making. Particular attention is devoted to the complex relationship between primary and secondary law as well as to the importance of stimulating reflection on fundamental rights within the domestic sphere.

Europe to the Rescue

2019 ◽  
pp. 192-241
Author(s):  
Wojciech Sadurski
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
The European Union ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
European Court ◽  
Venice Commission ◽  
Naming And Shaming ◽  
Near Future ◽  
The Eu

The Council of Europe (CoE) and the European Union (EU) possess significant legal instruments to affect and reverse anti-democratic changes in Poland, and some of these instruments have already been used, with varying degrees of success. The chapter opens with the CoE’s, and in particular the Venice Commission and the European Court of Human Rights’ contributions to policing Polish assaults on the rule of law. It then turns to the EU, and reflects upon the question as to whether the EU—with its assortment of different measures of ‘naming and shaming’ (Art. 7.1 Treaty on European Union (TEU)), sanctions (Arts 7.2 and 7.3 TEU), and legal infringement actions, as well as its newly crafted ‘rule of law framework’ (also known as the pre-Article 7 procedure)—has been so far, and can be in the near future, effective in cabining and reversing anti-democratic trends in one of its largest member states. The conclusion is affirmative: the EU has an important, even if limited, role to play in assisting Polish defenders of the rule of law and democracy.

scholarly journals The Teleos and the Anatomy of the Rule of Law in EU Infringement Procedures

2019 ◽  
Vol 11 (2-3) ◽  
pp. 439-445 ◽  
Author(s):  
Anna Śledzińska-Simon ◽  
Petra Bárd
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Judicial Independence ◽  
Individual Rights ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
Judicial Protection ◽  
The Eu

Abstract The article proves a long-lasting legacy of Martin Krygier’s work on the rule of law. Taking the European Union as a case study, and specifically—the recent infringement action concerning the judicial independence in Poland, the article addresses the point (teleos) of the rule of law, the conditions the institutions need to fulfill to make this point, and institutional measures that help to meet these conditions in the EU as a whole and its Member States. It argues that the rule of law can be achieved via various paths, but there is general agreement on when its basic elements such as the guarantees against arbitrary removal of judges are missing. Therefore, it concludes, the EU does not need to determine the anatomy of national institutions, but it needs to remain vigilant against such modifications that put at risk the effectiveness of EU law, and the judicial protection of individual rights in particular.

Risk versus Hazard before the EU Courts – A Comment

2011 ◽  
Vol 2 (2) ◽  
pp. 205-208 ◽  
Author(s):  
Joakim Zander
Keyword(s):  
Rule Of Law ◽  
Precautionary Principle ◽  
Legal Certainty ◽  
Risk Regulation ◽  
Member States ◽  
The Rule Of Law ◽  
The Precautionary Principle ◽  
European System ◽  
The Eu

Professor Lofstedt presents a convincing illustration of the inconsistencies inherent in a European system of regulation where Member States choose whether to regulate based on assessments of risks or hazards depending on the product concerned. Particularly striking is the candid comment of a Swedish official who seems to marvel at the conflicting positions of his own government. The quote reminds this author of an official in the Swedish Ministry of Environment who in an interview stated that the application of regulation would be widely different if the precautionary principle as included in the Swedish Environmental Code or the precautionary principle as included in the Swedish Planning Code were to be employed.1 For a lawyer – or anyone else with an interest in the rule of law – such inconsistencies pose serious problems with regard to legal certainty. Unfortunately, those who could reasonably be expected to be most concerned with issues relating to the rule of law – national and European courts – have thus far proven reluctant to second-guess, or even criticise, decisions in the area of risk regulation.

scholarly journals Legal Certainty

2021 ◽  
pp. 185-201
Author(s):  
Viktor Smorodynskyi
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Legal Certainty ◽  
Theoretical Concepts ◽  
The Rule Of Law ◽  
Res Judicata ◽  
National Courts ◽  
Legitimate Expectations ◽  
General Principles Of Law ◽  
Venice Commission

Legal certainty is considered in the paper not only as one of the general principles of law and one of the requirements of the Rule of Law, but also as a fundamental feature and condition of the significance of law and its instrumental value in general. In this regard, the definitions of the Rule of Law conception and the lists of its components proposed by Western philosophers and theorists of law and by the Venice Commission are analyzed. Elements of the principle of legal certainty such as legislation and case law accessibility, legal acts’ predictability, principles of case law unity, legitimate expectations, res judicata, the European concept of autonomous interpretation and the American doctrine of uncertainty of law are covered. By analyzing and synthesizing theoretical concepts of the principle of legal certainty, the practice of its interpretation and application by European and national courts, the connections between it and other general principles of law (in particular – principles of legality and reasonableness), this principle plays a key role in the Rule of Law implementation in the national legal system.

scholarly journals A Populist Monster and the future of Constitutional Democracy

2021 ◽  
Vol 4 (1) ◽  
pp. 83-100
Author(s):  
Andraž Teršek
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Constitutional Court ◽  
Court Decisions ◽  
Constitutional Democracy ◽  
Council Of Europe ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Social ◽  
The Eu

Abstract The central objective of the post-socialist European countries which are also Member States of the EU and Council of Europe, as proclaimed and enshrined in their constitutions before their official independence, is the establishment of a democracy based on the rule of law and effective legal protection of fundamental human rights and freedoms. In this article the author explains what, in his opinion, is the main problem and why these goals are still not sufficiently achieved: the ruthless simplification of the understanding of the social function and functioning of constitutional courts, which is narrow, rigid and holistically focused primarily or exclusively on the question of whether the judges of these courts are “left or right” in purely daily-political sense, and consequently, whether constitutional court decisions are taken (described, understood) as either “left or right” in purely and shallow daily-party-political sense/manner. With nothing else between and no other foundation. The author describes such rhetoric, this kind of superficial labeling/marking, such an approach towards constitutional law-making as a matter of unbearable and unthinking simplicity, and introduces the term A Populist Monster. The reasons that have led to the problem of this kind of populism and its devastating effects on the quality and development of constitutional democracy and the rule of law are analyzed clearly and critically.

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