scholarly journals LEGAL CERTAINTY IN THE ASPECT OF LOCAL GOVERNMENT

2021 ◽  
pp. 59-63
Author(s):  
H. Ostapenko ◽  
Keyword(s):  
Local Government ◽  
State Government ◽  
Rule Of Law ◽  
Court Decisions ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Unequal Treatment ◽  
Legal Provisions ◽  
Mandatory Requirement ◽  
Legitimate Expectations

The article addresses the analyses of adherence to the legal certainty principle while the local government exercises its powers, which are enlarged during the reform of decentralization. It is stated that while the powers belonged to state government, the adherence of the legal certainty principle was found as very important to protect citizens from unpredictable and unequal treatment. So as soon as the powers were handed over to local government the protection of legal certainty principle still remains actual. Legal certainty requires clarity and legibility of legal provisions, limitation of discretive powers, promulgation and publication of legal acts in advance etc. These elements must be adhered realizing local powers. One of the elements legal certainty requires is protection of the legitimate expectations of citizens. A number of court decisions which are analyzed in the article prove that breaking of legitimate expectations happens frequently. Emphasis is made on preventing such practices and on the need to respect legal certainty as a mandatory requirement of the rule of law. The necessity of observance of the requirements of legal certainty at promulgation of acts by local self-government bodies and making the citizens know about them is determined.

scholarly journals Consideration of the bail concept as a component of a financial liability in the understanding of the law of Ukraine "On the prevention of corruption" for qualification of the act in accordance with article 366-1 of the Criminal Code of Ukraine

2020 ◽  
pp. 127-134
Author(s):  
Yu.A. Shevchenko ◽  
O.V. Kharytonova
Keyword(s):  
Human Rights ◽  
Local Government ◽  
Rule Of Law ◽  
Criminal Code ◽  
Constitutional Court ◽  
Practical Consideration ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
The Law

This article is devoted to the analysis of the current legislation of Ukraine, as well as judicial practice in the context of the need to enter information in the declaration of a person authorized to perform the functions of the state or local government, namely the column "Financial Liabilities", in the form of surety, and the problem of providing a criminal legal assessment in the context of the possibility of the acts qualification under Article 366-1 of the Criminal Code of Ukraine (hereinafter - the Criminal Code of Ukraine). These issues nowadays acquire the status of an exceptional legal problem due to the lack of a single law enforcement practice, and therefore require theoretical and practical consideration. In this regard, the article focuses on the analysis of certain provisions of the Law of Ukraine "On Prevention of Corruption", consideration of the crime under Article 366-1 of the Criminal Code of Ukraine, as well as consideration of the judicial practice of the European Court of Human Rights, the Supreme Court, the Constitutional Court Ukraine, courts of appeal and local courts. Much of the author's attention is focused on the concept of legal nature and the institution of bail in general. In doing so, the author explored the above issues through the lens of human rights protection, based on the understanding of the essence of the principle of legal certainty, which is part of the concept of the rule of law. The conclusions suggested proposals as for improving the question that author discussed by amending national anti-corruption legislation in order to enable it to qualify the act provided for in Article 366-1 of the Criminal Code of Ukraine in the form of failure to enter information in the declaration column "Financial liabilities" of the persons authorized to perform the functions of state or local government in the presence of surety. In particular, the author emphasized that formulation of the norm, which defines the concept of "financial liabilities", makes it impossible to apply it in the context of qualifying a crime under Article 366-1 of the Criminal Code of Ukraine due to lack of legal certainty, which makes it impossible to maintain the principle the rule of law, and therefore a priori, human rights and freedoms will be violated.

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 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.

PRINCIPLES OF STATE REGULATION OF THE ACTIVITIES OF BODIES OF THE STATE EXECUTIVE SERVICE AND PRIVATE EXECUTORS

2018 ◽  
Vol 1 (13) ◽  
pp. 69-77
Author(s):  
Mariіa Konstantinovna Kulava
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Social Relations ◽  
State Regulation ◽  
Court Decisions ◽  
Regulatory Requirements ◽  
The Rule Of Law ◽  
State Administration ◽  
Executive System ◽  
The Right

Within the presented article, taking into account already existing achievements of scientists, the concept, the main features of the principles of state administration of the executive system of Ukraine are defined. The principles of activity of executive bodies bodies according to the current legislation of Ukraine are determined. A brief description of the principles is presented, namely: the rule of law, legality, compulsory, independence, justice, impartiality and objectivity, discretion, transparency and openness of executive proceedings and its fixation by technical means, the reasonableness of the time limits for enforcement proceedings, the proportionality of enforcement measures and the amount of claims for decisions, the right to appeal decisions, actions or omissions of state executives, private performers. It is established that in general the principles of executive proceedings in the investigated normative acts are duplicated, in addition to the principles of independence and the right to appeal decisions, actions or inaction of state executives, private performers. The actual vision of the principles of public administration of the executive system of Ukraine is determined. The opinion on the need to supplement the list of principles with the following: the principle of equal competition between state and private performers through the balance between them; the principle of responsibility of the executive system bodies, their officials and private executors for damage caused as a result of violations of regulatory requirements; the principle of introducing effective incentives for voluntary implementation of decisions; the principle of professionalism and competence. Also, within the submitted article, it is stated that the use of the terms “principles” and “principles” in the Laws of Ukraine “On Bodies and Officials Performing Enforcement of Court Decisions and Decisions of Other Bodies”, “On Enforcement Proceedings”, which are adopted simultaneously and regulated, are unjustified, identical social relations.

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.

scholarly journals European prosecution between cooperation and integration: The European Public Prosecutor’s Office and the rule of law

2021 ◽  
pp. 1023263X2110059
Author(s):  
Valsamis Mitsilegas
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Legal Framework ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Applicable Law ◽  
European Public ◽  
Judicial Protection ◽  
Current Rule ◽  
Academic Debate

The article will examine the challenges that the establishment of the European Public Prosecutor’s Office poses for the rule of law – a question which has been underexplored in the policy and academic debate on the establishment of the EPPO, which focused largely on questions of structure and powers of the EPPO and the battle between intergovernmental and supranational visions of European prosecution. The implications of the finally adopted legal framework on the EPPO on the rule of law will be analysed primarily from the perspective of the rule of law as related to EPPO investigations and prosecutions and their consequences for affected individuals – in terms of legal certainty and foreseeability, protection from executive arbitrariness, effective judicial protection and defence rights. The article will undertake a rule of law audit of the EPPO by focusing on three key elements of its legal architecture – the competence of the EPPO, applicable law and judicial review – and the interaction between EU and national levels of investigation and prosecution that the EPPO Regulation envisages. The analysis will aim to cast light on the current rule of law deficit in a hybrid system of European prosecution located somewhere between co-operation and integration.

scholarly journals WATANIC JURISPRUDENCE: ARTICULATING THE LEGITIMATE ELEMENTS OF THE BASIC STRUCTURE OF THE FEDERAL CONSTITUTION

2021 ◽  
Vol 29 (1) ◽  
pp. 1-28
Author(s):  
Wan Ahmad Fauzi Wan Husain
Keyword(s):  
Rule Of Law ◽  
Basic Structure ◽  
Federal Court ◽  
Local History ◽  
The Rule Of Law ◽  
Legal Documents ◽  
Legal Provisions ◽  
Federal Constitution ◽  
Local Courts ◽  
Indian Supreme Court

The doctrine of the basic structure of a constitution would be undisputable if those elements thereunder are clear and representing the facts of our local history, nationhood, and the principle of the rule of law. Former Chief Justice Tun Abdul Hamid Mohamad argued that the doctrine of the basic structure of a constitution introduced by the Indian Supreme Court contradicts Article 159 of the Federal Constitution and beyond the competent jurisdiction of the local courts. Hence, this article puts forward the conceptual framework of the basic structure adopted by the Federal Court in the case of Indira Gandhi to articulate those elements summed therein viewed from the watanic jurisprudence. The watanic jurisprudence analyses legal documents and sources of sovereignty based upon two philosophical worldviews; continuum and dichotomous frameworks relying upon the local legal history context and the present legal provisions of a country. Depending on a broad and purposive manner in proper linguistic, philosophic, and historical contexts of the Malaysian legal historical documents, the legitimate elements of the basic structure are the principle of sovereignty as embedded in the oath of office of the Yang di-Pertuan Agong together with the matters aggregated in Article 38(4), Article 159(5) and Article 161E. The oath of the Yang di-Pertuan Agong thus legitimizes Syariah compliance as the rule of law. The Federal Constitution of Malaysia also expressly protects its basic structure with strict conditional amendments. In conclusion, the basic structure of our Federal Constitution must be viewed from our local circumstances in compliance with the principle of constitutional supremacy and the rule of law.

scholarly journals The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

Urban Autonomy in South African Intergovernmental Relations Jurisprudence

ICL Journal ◽  
2019 ◽  
Vol 13 (2) ◽  
pp. 119-146
Author(s):  
Marius Pieterse
Keyword(s):  
Local Government ◽  
South African ◽  
Urban Governance ◽  
Intergovernmental Relations ◽  
Court Decisions ◽  
Administrative Authority ◽  
City Governments ◽  
Global Era ◽  
Legal Provisions ◽  
South African Cities

Abstract The notion of urban autonomy is increasingly significant in a global era where city governments are playing an ever-growing role in development, as well as in domestic and international politics. While extending significantly beyond legal configurations of local government powers and functions, urban autonomy is importantly shaped, enabled and protected by constitutional and legal provisions. This is so especially where urban governance happens in a resource-strapped and often politically volatile environment. This article considers the extent to which formal constitutional structures, and their justiciability, enable and channel urban autonomy in the developing world, with a focus on the constitutionally ensconced powers and functional authority of cities in South Africa. Through an overview of relevant constitutional and statutory provisions and of court decisions upholding urban autonomy in intergovernmental disputes, the article illustrates that South African cities have been served well by a constitutional framework emphasising cooperative governance and developmental local government, as well as by the justiciable entrenchment of local government’s executive, legislative and administrative authority.

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