scholarly journals THE ROLE AND SIGNIFICANCE OF JUDICIAL PRECEDENT IN THE SYSTEM OF SOURCES OF LAW

2021 ◽  
pp. 50-53
Author(s):  
N. Mialovytska ◽  
◽  
N. Zlatina ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Special Significance ◽  
Checks And Balances ◽  
Legal Norms ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Rule Making ◽  
The Eu

The article explores the concepts of sources of law and their main types. The source of law means the way of external influence of legal norms, which certifies their binding nature. The concepts and place of judicial precedent in the system of sources of law are defined. It is noted that judicial precedent should be understood as a court decision rendered in a particular case and entered into force, and which is the basis for resolving similar cases by other bodies. As part of the integration process in Europe, two important judicial bodies have been formed – the European Court of Human Rights (hereinafter – the ECtHR) and the Court of Justice. Each of these courts plays an important role in the rule-making process within its competence. The ECtHR's function is not limited to dealing with specific complaints. Its decisions also provide a comprehensive interpretation of the main provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. As a result, they acquire a special significance that is precedent-setting. Therefore, the application of the case law of the ECtHR is considered as a source of law. It is also noted that EU courts play a role in the development of the rule-making process within the EU. They interpret the main provisions of the founding treaties and other regulations and formulate autonomous concepts and concepts that complement and clarify the provisions of regulations and implement new fundamentally important for the development of integration law provisions. Recognition of judicial precedent as a source of law means that judicial bodies perform not only a jurisdictional function (resolving conflicts on the basis of law), but also law-making. This function increases the role and importance of the judiciary in the mechanism of checks and balances of abuse of state power.

Between Informal Dialogue and Official Criticism

2019 ◽  
Vol 21 (5) ◽  
pp. 409-420
Author(s):  
Anna Podolska
Keyword(s):  
European Union ◽  
Human Rights ◽  
Mutual Recognition ◽  
Case Law ◽  
Fundamental Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

scholarly journals Case Report on C-411/10, N.S. and C-493/10, M.E. and Others, 21 December 2011

2012 ◽  
Vol 14 (2) ◽  
pp. 223-238 ◽  
Author(s):  
Sophie Lieven
Keyword(s):  
Human Rights ◽  
Case Report ◽  
European Court Of Justice ◽  
Member States ◽  
Court Of Justice ◽  
European Court ◽  
Common European Asylum System ◽  
Protection Of Human Rights ◽  
The Common ◽  
The Eu

Abstract The European Court of Justice clarified through this judgment the way in which the overloading of a Member States’ asylum system affects the EU arrangements for determining the Member State responsible for asylum applications lodged in the EU and thereby drastically reduced the possibility granted to Member States to transfer asylum applicants. The Member States now have an obligation to verify that no serious risk of violation of the Charter rights of the applicant exits in the receiving country before being allowed to transfer the person. The practical consequences of this ruling are still uncertain but further cooperation between Member States should be able to enhance the level of protection of human rights within the Common European Asylum System.

Composing Europe’s Fundamental Rights Area: A Case for Discursive Pluralism

2015 ◽  
Vol 17 ◽  
pp. 210-246
Author(s):  
Louise HALLESKOV STORGAARD
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Eu Law ◽  
Rights Protection ◽  
Court Of Justice ◽  
European Court ◽  
Normative Basis ◽  
The Relationship ◽  
The Eu

AbstractThis article offers a perspective on how the objective of a strong and coherent European protection standard pursued by the fundamental rights amendments of the Lisbon Treaty can be achieved, as it proposes a discursive pluralistic framework to understand and guide the relationship between the EU Court of Justice and the European Court of Human Rights. It is argued that this framework – which is suggested as an alternative to the EU law approach to the Strasbourg system applied by the CJEU in Opinion 2/13 and its Charter-based case law – has a firm doctrinal, case law and normative basis. The article ends by addressing three of the most pertinent challenges to European fundamental rights protection through the prism of the proposed framework.

European Court of Human Rights case law as a source of European Union law

2021 ◽  
Author(s):  
Dmytro Boichuk ◽  
Vitalii Hryhoriev
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Court Of Justice ◽  
European Court ◽  
Legal Nature ◽  
The Eu

The article is devoted to the study of the legal nature of the decisions of the European Court of Human Rights as a source of law of the European Union. Within the scope of the doctrinal sources and the existing case law of the European Court of Human Rights and the Court of Justice of the European Union, the authors substantiate the logic of including existing the European Court of Human Rights case law in the EU law sources, citing arguments based on the EU law and the case law.

scholarly journals PSD1 from Perspective of ECJ

2021 ◽  
Vol 2 (20) ◽  
pp. 84-98
Author(s):  
Anete Bože
Keyword(s):  
New Technologies ◽  
Scientific Research ◽  
Case Law ◽  
European Court Of Justice ◽  
Legal Norms ◽  
Court Of Justice ◽  
European Court ◽  
General Scientific ◽  
Payment Services ◽  
The Eu

Directive 2007/64/EC (known also as Payment Service Directive 1 – PSD1) and Directive (EU) 2015/2366 (known also as Payment Service Directive 2 – PSD2) both regulate payment services in the EU. PSD1 is no longer in force and it was replaced with PSD2 that provides the basis for a better integrated EU payments market, opens up a market for new types of payment services, allows to use new technologies to provide these services etc. The European Court of Justice (ECJ) has made some significant rulings that helped to understand some concepts from the PSD1 and PSD2 more clearly. In this article, the author gives reviews of the rulings of the ECJ that are related to payment services, PSD1 and gives her own opinion on the possible impact of the respective rulings. The article was based on methods of general scientific research and interpretation of legal norms and analysis of the case-law of the ECJ. The aim of this article is to review some of the ECJ judgments related to payment services and PSD1.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

Property and Expropriation: Two Concepts Revisited in the Light of the Case Law of the European Court of Human Rights and the European Court of Justice

2019 ◽  
Vol 8 (2) ◽  
pp. 172-191
Author(s):  
Sabrina Praduroux
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Economic Value ◽  
Case Law ◽  
European Court Of Justice ◽  
Property Law ◽  
Court Of Justice ◽  
European Court ◽  
Key Concepts ◽  
Domestic Law

Abstract In the late 1950 s René Savatier foretold that the qualification of economic value itself as property (bien) would have been the ultimate evolution of the theory of property rights. This prediction has come true with regard to the case law of the European Court of Human Rights (ECtHR) and the European Court of Justice (CJEU). This paper investigates the implications of the understanding of property developed by the two European Courts on the concept of expropriation itself as well as for the principles governing expropriation law. Hence, the paper illustrates the role played by both the ECtHR and the CJEU in laying down the parameters of legitimacy for national law, including property law. Within this context, the focus falls on cases in which the Courts characterize the facts as deprivation of property requiring for compensation, even though the relevant property could not be the object of expropriation under the domestic law of the defendant State. My contribution brings new insights into the current transformation of the traditional property categories and suggests the reinterpretation of some key concepts of expropriation law.

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