scholarly journals PECULIARITIES OF THE USE OF NORMS OF CASE LAW IN THE SYSTEM OF DOMESTIC JUSTICE

2020 ◽  
pp. 71-75
Author(s):  
Ye. A. Zherobkina
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Armed Forces ◽  
Case Law ◽  
The State ◽  
Judicial Reform ◽  
Court Decisions ◽  
Basic Law ◽  
The Law ◽  
The Right

Taking into account the basic principles of a democratic, rule of law, social state, the key of which is the principle of separation of powers in the state, Ukraine is building a state apparatus. Declaring such a principle in the Constitution of Ukraine and building on it the basis of the functioning of all branches of government have become a prerequisite for the acquisition of judicial branch of power signs of independence and independence. LA Lutz argues that the functioning of the judiciary as an independent is accompanied by its development and the introduction of rulemaking functions. This fact is related to the involvement of the judiciary in the settlement and resolution of national cases. As a result, throughout the years of Ukraine's independence, the courts have recognized the right not only to the application and interpretation of legal rules, but also to their creation. As of today, the law does not formally enshrine the functions of rulemaking, but in legal science there are discussions about the possibility of the existence of case law in the state. The analysis of court decisions suggests that the precedent is not only those of the courts of Ukraine that have a rule of law, but also those that contain appropriate explanations of the content of the rule, or of judgments that contain criteria for the similarity of the application of the rules. The provisions of the basic law − the Law of Ukraine “On Judiciaryand Status of Judges” of 02.06.2016, № 1402-VIII have been analyzed due to the possibility of recognizing judicial precedent as anofficial source of law in accordance with the requirements of the current domestic legislation. In this article, we conducted a detailedanalysis of the peculiarities of the use of case law in the system of domestic justice. Particular attention was paid to updating the system of enforcement of court decisions, including the decisions of the ArmedForces. It is stated that the institute of enforcement of judgments is based on the functioning of the Laws of Ukraine “On EnforcementProceedings” and “On Bodies and Persons who Enforce Enforcement of Judgments and Decisions of Other Bodies”. A separate novelty of judicial reform − the creation of new higher specialized courts as courts of first instance for the considerationof certain categories of cases: the High Court for Intellectual Property and the Supreme Anti-Corruption Court, whose review will bevested in the Armed Forces, has been investigated.

scholarly journals Parliamentarianism: concept, signs, and problems of development in Russia

2019 ◽  
Vol 4 (22) ◽  
pp. 208-221
Author(s):  
Lyudmila Konovalova
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
Separation Of Powers ◽  
The State ◽  
Executive Power ◽  
Political Opposition ◽  
Legal Literature ◽  
The Law ◽  
The Right

The article analyzes various ideas about the concept and features of parliamentarism. On the basis of the generalization of the legal literature, the following set of features of parliamentarism is denoted: 1) rule of law; 2) separation of powers; 3) participation of the parliament in bodies of executive, judicial and other branches of power; 4) accountability of the executive power to the parliament; 5) multiparty nature, the right to political opposition and ensuring the connection of the population with the state mechanism; 6) special status of the deputy with a free mandate and responsibility before the law; 7) independence of the parliament; 8) special status of the deputy with a free mandate and responsibility before the law. The concept of parliamentarism proposed to counteract state bureaucratization. We connected the idea of parliamentarism with the possibility of mitigating authoritarian tendencies in Russian political system.

scholarly journals „Dobre” społeczeństwo i państwo prawa. Prolegomena do konstytucji

2007 ◽  
Vol 10 ◽  
pp. 29-42
Author(s):  
Paweł Kaczorowski
Keyword(s):  
Social Relationships ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Legal Protection ◽  
The State ◽  
The Rule Of Law ◽  
Legal Standards ◽  
The Law ◽  
The Right ◽  
Legal Character

The idea of a law-governed state, which is referred to so commonly, exists as a synonym of the principle of the supreme meaning and standing of the constitution in the state system. The law-governed state in its pure form is one where the law provides not only the framework and barriers for the state and the actions of the authorities, but a state wherein its beginning and foundations are rooted in the law. The concept of the law-governed state has many highly detailed elements (the very existence of the constitution, the separation of powers, the independence of the courts, the legal character of administrative actions, legal protection against decisions made by the authorities, the right to appeal, etc.); its essence, however, is the recognition of the law as a particular means and a yardstick with which both the state’s system and the recognition of the legal standards vested with the power to shape social relationships, the regulatory power, are moulded. It is the prestige of the law – nomos basileus – which should be the source of state order. The supremacy of the law provides the premise on which the introduction of every detailed solution which turns the idea of the law-governed state into specifics, is based. If the rule of law, rather than that of the authorities is to exist, this must be a law wherein each citizen may contribute to its shape; ideally it will be one established directly by the citizens rather than by the established authorities, democratic in an indirect way. This must be a law binding upon everyone equally, observed by everyone, operating effectively and surely. It must also be a law made for society’s sake rather than for that of an idea, and it must be fitting to those realities, standards and common practices that exist in that society. It must also be a law not too rigorous and imposing neither excessive requirements nor strange measures.

scholarly journals Globalization and the Law: Deciphering the Message of Transnational Human Rights Litigation

2004 ◽  
Vol 5 (12) ◽  
pp. 1499-1520 ◽  
Author(s):  
Peer Zumbansen
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Constitutional Court ◽  
Basic Law ◽  
European Court ◽  
Federal Constitutional ◽  
The Law ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

On 14 October 2004, theBundesverfassungsgericht(BVerfG – German Federal Constitutional Court) voided a decision by theOberlandesgericht(Higher Regional Court) Naumburg, finding a violation of the complainant's rights guaranteed by theGrundgesetz(German Basic Law). The Decision directly addresses both the observation and application of case law from the European Court of Human Rights under the Basic Law's “rule of law provision” in Art. 20.III. While there is a myriad of important aspects with regard to this decision, we may limit ourselves at this point to the introductoryaperçucontained in the holdings of the case. One of them reads as follows:Zur Bindung an Gesetz und Recht (Art. 20 Abs. 3 GG) gehört die Berücksichtigung der Gewährleistungen der Konvention zum Schutze der Menschenrechte und Grundfreiheiten und der Entscheidungen des Europäischen Gerichtshofs für Menschenrechte im Rahmen methodisch vertretbarer Gesetzesauslegung. Sowohl die fehlende Auseinandersetzung mit einer Entscheidung des Gerichtshofs als auch deren gegen vorrangiges Recht verstoßende schematische “Vollstreckung” können gegen Grundrechte in Verbindung mit dem Rechtsstaatsprinzip verstoßen

The State of the Law on Euthanasia in Kenya

2020 ◽  
Vol 8 (1) ◽  
pp. 1-14
Author(s):  
Moni Wekesa ◽  
Martin Awori
Keyword(s):  
Empirical Studies ◽  
Case Law ◽  
The State ◽  
Right To Die ◽  
Criminal Offence ◽  
Dual Effect ◽  
Current State ◽  
The Law ◽  
State Of Affairs ◽  
The Right

The general position of the law on euthanasia worldwide is that all states recognise their duty to preserve life. Courts in various jurisdictions have refused to interpret the 'right to life' or the 'right to dignity' to also include the 'right to die'. Instead, they have held that the state has a duty to protect life. Three categories can however be noted. At one extreme are those countries that have totally criminalised any appearance of euthanasia. In the middle are countries that prohibit what appears to be active euthanasia while at the same time tolerating 'dual-effect' treatment and withdrawal of artificial feeding. At the other extreme are countries that allow euthanasia. Even in this last category of countries, there are stringent guidelines embedded in the law to prevent a situation of 'free for all'. Anecdotal evidence, some empirical studies and case law seem to suggest that euthanasia goes on in many countries irrespective of the law. Euthanasia is a criminal offence in Kenya. However, there have been no empirical studies to ascertain whether euthanasia goes on in spite of the law. This article surveys the current state of the practice of euthanasia globally and narrows down to elaborate on the state of affairs in Kenya.

scholarly journals Social and Economic Rights in the German Basic Law? An Analysis with Respect to Jurisprudence of the Federal Constitutional Court

2020 ◽  
Vol 6 (2) ◽  
pp. 190
Author(s):  
Christoph Enders
Keyword(s):  
Federal Republic ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Economic Rights ◽  
Basic Law ◽  
Federal Constitutional ◽  
Right To Participation ◽  
The Right

The Basic Law for the Federal Republic of Germany did originally not provide for social or economic rights understood as claims to benefits. The Federal Constitutional Court (FCC) did, indeed, recognise the states obligation to protect individuals against assault by others (right to security) and further ruled that everyone has the right to use facilities provided by the state under equal conditions (right to participation). These rights, however, aim to ensure that the state uses existing means as intended. In addition, the FCC by now has recognised a “right to the guarantee of a dignified minimum subsistence”. It is an original entitlement as the state is obliged to create and provide benefits for individuals in need. This new legal construction, however, misconceives the division of responsibilities between the FCC and the legislator and collides with the principle of the separation of powers

scholarly journals Accountabities of Land-ownership’s Representative in Vietnam

2021 ◽  
Vol 37 (1) ◽  
Author(s):  
Phan Trung Hien
Keyword(s):  
Rule Of Law ◽  
Land Management ◽  
Land Ownership ◽  
The State ◽  
The Law ◽  
The Right ◽  
Socialist Rule Of Law

This article focuses on the State's accountability as an owner representative in the process of land management in Vietnam. Based on the requirements of building a socialist rule of law state and the people’s land ownership, the article points out the gaps in law and barriers in the process of exercising accountability in the field of land management. On that basis, the article proposes solutions to improve the law to ensure the accountability of the State, through the relevant agencies, that are assigned the right to represent the land owner in Vietnam

scholarly journals A Consistent Inconsistency—An Interpretationof Sections 23 and 56(1) of the Charter of Human Rights and Freedoms of Québec

2016 ◽  
Vol 28 (3) ◽  
pp. 379-403
Author(s):  
Barbara Pierre
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Attorney General ◽  
Supreme Court Decision ◽  
The State ◽  
Fundamental Rights ◽  
The Law ◽  
The Difference ◽  
The Government ◽  
The Right

The writer advocates the view that courts interpret statutes so as to achieve their aim; that being justice in the case: as between the parties and in respect of the law. This is identified as the common thread that explains the apparent erratic behaviour of the courts in their use of the various methods or rules of interpretation. The Supreme Court decision, Attorney General of Québec v. 2747-3174 Québec Inc., is analysed against the background of this theory and is seen to give support to it. The court is shown to use various rules of interpretation, which lead the majority to a wide, and the minority to a narrow, interpretation of the Charter of Human Rights and Freedoms of Québec. Yet it is clear that in both cases the rules are merely a means to an end: justice as between the parties and in respect of the law. In context of the case, this means establishing a balance between the competing interests of the State and the citizen that conforms to the law relating to fundamental rights and in particular, the Charter of Human Rights and Freedoms of Québec. As far as the State is concerned, it has a vested interest in confirming the constitutionality of its many administrative tribunals, which play an essential role in enabling the State to discharge its responsibility to govern. Citizens, on the other hand, need to be protected from the violation of their rights, in particular the right to an independent and impartial tribunal in matters relating to the determination of their rights and obligations, or charges brought against them. The Charter must be interpreted so that, in its scope and content, it gives real protection, but, consistent with the separation of powers doctrine, the interpretation must not amount to a usurpation by the courts of the role of the government to govern. The writer concludes that the opposing conclusions of the majority and minority are more a consequence of the difference in the opinion of the judges as to the manner in which the balance should be struck, as opposed to the rules of interpretation used by them.

scholarly journals INTERNATIONAL STANDARDS FOR ENSURING THE RIGHT OF ACCESS TO COURT FOR PARTICIPANTS OF ECONOMIC RELATIONS

2020 ◽  
pp. 34-42
Author(s):  
V.O. Koverznev ◽  
◽  
◽  
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Fundamental Rights ◽  
International Standards ◽  
Access To Justice ◽  
Court Decisions ◽  
The Rule Of Law ◽  
Economic Relations ◽  
Administration Of Justice ◽  
The Right

Transformation and sustainable development of modern countries is not possible without providing all participants in economic relations with equal access to justice, which should be based on respect for fundamental rights, the Rule of Law, transparent courts and the effective administration of justice, guaranteeing public access to information about activity of commercial courts. The term "access to court" is a complex legal category based on several basic criteria, the simultaneous provision of which guarantees the actual observance of a person's right to access to justice, in particular: 1) financial, which provides for the obligation of the state to establish such an algorithm for determining the amount of court costs, which takes into account the property of the party and does not create obstacles to the exercise of the right to go to court, while acting as a safeguard against abuse of the right to go to; 2) territorial, which provides that the system of courts of general jurisdiction should be built taking into account the territorial structure of the state, with local courts, which consider all cases as courts of first instance, should be territorially as close as possible to the person; 3) organizational — provides for the optimal organization of the judicial system, which should be simple and, at the same time, clear and effective, in the context of access to court and the procedure for protection of individual rights. In addition, both the system of general courts as a whole and each individual court of general jurisdiction must be established and carry out their procedural activities in strict accordance with national law; 4) informational, according to which each state must legislate to inform its citizens and business entities about the procedure for going to court, about the conditions of providing certain categories of socially vulnerable citizens engaged in business activities, professional legal assistance provided by lawyers at the expense of the state, as well as the cur rent procedural rules; 5) procedural, which guarantees the administration of justice on the basis of the Rule of Law, as well as impartiality and impartiality of the court and judges, reasonable timeliness of court proceedings, publicity of proceedings and promulgation of court decisions, proper motivation and justification of court decisions, ensuring effective execution of court decisions and respect for final court decision; 6) quality of legislation, which imposes on the state the obligation to adopt legislation that meets the requirements of accessibility and predictability, so that each person has the opportunity to obtain adequate information about the circumstances of the application of legal norms in a particular case.

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.

scholarly journals Ensuring the exercise of the right to access to justice as a mandatory attribute of a constitutional state

2021 ◽  
pp. 311-316
Author(s):  
Y. І. Sverba
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Access To Justice ◽  
Special Role ◽  
The Rule Of Law ◽  
Constitutional State ◽  
The Right

The article analyzes both the positive and negative obligations of the state regarding the right to access to justice. Based on the principle of separation of powers into legislative, executive and judicial, emphasis on the need for real justice in constitutional state, as well as ensuring its accessibility, is made. Some aspects of the European Court of Human Rights case-law in the field of access to justice are considered. It is also hypothesized that the ECtHR case-law ensures the dynamic development of the European Convention on Human Rights provisions. In particular, the article analyses several ECtHR decisions which explicitly state that the Convention is intended to guarantee not theoretical and illusory, but practical and effective rights («Matthews v. The United Kingdom», «Bellet v. France and others»). The decision of the Constitutional Court of Ukraine is studied, which, inter alia, reveals the special role of constitutional and administrative proceedings in ensuring the rule of law. The obligation of the state to ensure equal access to justice is stated, since the purpose of justice is to protect violated, disputed rights, freedoms that belong directly to the person applying to the court for their protection. Therefore, the exercise of the right guaranteed by part two of Article 55 of the Constitution of Ukraine to appeal court decisions, actions or omissions of subjects of power must be ensured in accordance with the stated purpose of justice. At the same time, this right connects to the opportunity of every person to justify before the court conviction in the illegality of interference by the subjects of power in rights and freedoms concerned. The article analyses the decision of the Grand Chamber of the Supreme Court, which reveals the legal nature of ensuring access to justice in criminal, or administrative offenses. It is stated that the attributes of the rule of law are not limited to the justice and access to it, and their autonomous existence is impossible in a society where other democratic institutions do not work. Keywords: the rule of law, justice, access to justice, constitutional state, human rights, legal aid.

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