scholarly journals Amendments to the Constitution and Issues of Interpretation in National and International Justice

2020 ◽  
Vol 15 (12) ◽  
pp. 181-189
Author(s):  
M. L. Galperin
Keyword(s):  
Human Rights ◽  
International System ◽  
The European Union ◽  
Legal Doctrine ◽  
National Courts ◽  
Law And Politics ◽  
European Court ◽  
International Court ◽  
Russian Constitution ◽  
Broad Interpretation

The paper examines the changes made to the Constitution of the Russian Federation through the prism of the current problem of interpretation by international and national courts of the rule of law, since approaches to the interpretation of any legal text are of fundamental importance. The questions of interpretation have already ceased to be technical in nature. Different approaches to interpretation determine what the democracy and people’s rule mean, the relationship between law and politics, the place of the country in the international system of coordinates. Special attention is given to the term and the problem of "interpretation" — one of the novels of the Russian Constitution. The author addresses the question of what “an interpretation contrary to the Constitution” means. It is precisely the different understanding of the same norms by the courts, the use of different approaches to the interpretation of legal texts that can lead to conflicts and even conflicts of jurisdictions resulting in serious consequences. The paper critically evaluates the application of the so-called evolutionary, broad interpretation of the European Court of Human Rights, which encourages states to develop mechanisms in national legal systems to protect against arbitrary decisions of the international court. In addition to the evolutionary one, the paper examines other modern approaches to interpretation: consequentialism, textualism, and originalism. The problems of interpretation are considered based on an analysis of the practice of the European Court of Human Rights, the Court of the European Union, American and European legal doctrine.

Transnational constitutional aspects of the European Court of Human Rights

2021 ◽  
Vol 10 (1) ◽  
pp. 151-174
Author(s):  
GEIR ULFSTEIN
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Legal Pluralism ◽  
Legal Order ◽  
Not Given ◽  
National Courts ◽  
European Court ◽  
International Court ◽  
International Legal Order

AbstractThe European Court of Human Rights (ECtHR) is an international court operating in the international legal order. Its judgments are not given direct effect in national law. In this sense we have a system of legal pluralism between international and national law. But the ECtHR has constitutional effects in national law through the weight placed on the Court’s practice by national courts. Therefore, constitutional principles are applicable in the interaction between the ECtHR and national courts. This article discusses the transnational constitutional aspects of the Court, and how this should guide the roles of, respectively, the ECtHR and national courts.

Knockin’ on heaven’s door: The burden of proof before international courts

2021 ◽  
Vol 11 (2) ◽  
pp. 111-133
Author(s):  
Ekaterina Diyachenko
Keyword(s):  
Burden Of Proof ◽  
The European Union ◽  
Legal Doctrine ◽  
International Courts ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Separate Object ◽  
Object Of Study ◽  
Onus Probandi

The issues of proof and determining the party upon which the corresponding burden rests are key to the administration of justice as the determination of the facts of the case is a compulsory stage prior the application of the legal norm. In the Russian legal doctrine the issue of proof has been extensively developed with regard to proceedings before national courts, but not enough in relation to the activity of international courts, except for the European court of human rights. This article explores the theoretical aspects of proof in international courts, analyses the approaches of the International Court of Justice and the Court of Justice of the European Union regarding the distribution of the burden of proof. A separate object of study is the legal findings of the Court of the Eurasian Economic Union with regard to the issue of proof. The findings of the study show that the universal rule onus probandi actori incumbit has evolved with the development of the international courts’ case law in the direction of a cooperation between the courts and the parties in the collection of evidence and the placement of the burden of proving the validity of acts, actions (failure to act) on the institutions vested with the corresponding powers.

scholarly journals Human and civil rights as a determiner of national state-building

Legal Ukraine ◽  
2020 ◽  
pp. 6-12
Author(s):  
Oleksandr Nelin
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Current Theory ◽  
The State ◽  
Theory And Practice ◽  
Legal Doctrine ◽  
Human Rights Protection ◽  
National Courts ◽  
European Court ◽  
The Right

At the present stage of their development the Ukrainian society and the state are characterized by their pursuit to provide maximum realization of human and civil rights and to create a full-scale civil society. Obviously, in this context, a significant attention is paid to the human rights in Ukraine, however there is insufficient research systematically conceptualizing the human rights employing philosophical and legal instruments and methodology. The author highlights that particular attention in the mechanism of organizational and legal remedies is paid to judicial and extrajudicial protection of human and civil rights. In accordance with the Article 55 of the Constitution of Ukraine the judicial protection of human and civil rights is maintained through the system of general jurisdiction courts of Ukraine. The state ensures the right of every person to appeal in court against any decisions, actions or inactivity of the state bodies, local self-government bodies and government officials that violate human and civil rights. In case of exhausting all remedies of his/her rights and liberties protection in national courts the person can appeal to the international courts, e.g. to the European Court of Human Rights. At present, Ukraine holds the third position in the number of its citizens’ appeals to this distinguished international legal institution. Every person is able to appeal to the extrajudicial institutions authorized to protect the constitutional human and civil rights and liberties. In Ukraine there is a special body for this purpose — the Ukrainian Parliament Commissioner for Human Rights, whose activities are determined by the Law of Ukraine «On the Ukrainian Parliament Commissioner for Human Rights» of 23 December, 1997. In case when all extrajudicial remedies of human rights protection are exhausted, a person has the right, guaranteed by the Constitution of Ukraine, to appeal to the international human rights organizations (Art. 55). In terms of the current theory and practice of guaranteeing the constitutional human and civil rights, together with the national regulatory, organizational and legal guarantees, it is worth to distinguish the international guarantees of the constitutional human and civil rights and liberties in Ukraine. The special international legal guarantees of the human and civil rights and liberties are usually divided into regulatory and institutional ones. Key words: human and civil rights and liberties, constitutional state, national legal doctrine, international law, imitation of human rights, constitutional and legal mechanism for ensuring human rights and liberties.

‘External’ Case Law as a Source of Inspiration for the Court of Justice of the European Union

2020 ◽  
pp. 38-53
Author(s):  
Allan Rosas
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
The Other ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Reverse Situation ◽  
Justice Judgments

Whilst the other contributions to this book focus on the extent to which the case law of the Court of Justice of the European Union (CJEU) is taken into account in EU neighbouring countries, notably by the national courts of these countries, this chapter deals with the reverse situation; that is, the extent to which the CJEU pays attention to the case law of both international courts and national courts of third countries. This is done mainly by looking at explicit references to such extraneous sources to be found in CJEU judgments and orders. The main focus is on the case law of the Court of Justice, but some information is also provided concerning the case law of the General Court. In the context of references to the European Court of Human Rights (ECtHR) case law contained in Court of Justice judgments, some examples are also given of references to CJEU judgments which can be found in the case law of the Human Rights Court.

The Policy Effects of the Decisions of European Courts on Targeted Sanctions

2019 ◽  
pp. 93-108
Author(s):  
Kushtrim Istrefi
Keyword(s):  
Human Rights ◽  
Security Council ◽  
Due Process ◽  
Reform Process ◽  
The European Union ◽  
Policy Effects ◽  
National Courts ◽  
European Court ◽  
Timely Review ◽  
Policy Objectives

This chapter examines the policy effects of decisions by European courts on Security Council targeted sanctions as regards the two concerns that triggered their judicial responses, namely due process reform and genuine realization of human rights. This consequentialist assessment argues that a more Herculean form of judicial activism, as seen in Kadi II before the Court of Justice of the European Union (CJEU), cannot alone uphold human rights and may be counterproductive to the Security Council reform process. This submission suggests that a form of judicial restraint as exercised by the European Court of Human Rights (ECtHR or Strasbourg Court) in Al-Dulimi may prove to be more effective. In particular, the arbitrariness test introduced by the Strasbourg Court in that case with regard to Security Council measures may achieve two policy objectives. First, through a timely review by national courts of arbitrary listings it may encourage the realization of human rights. Second, by demanding that states secure appropriate evidence for listings, it may revitalize reform of the sanction decision-making process. These effects of Al-Dulimi are examined in the context of earlier engagement by national authorities with Security Council measures, including in the Sayadi and Vinck and Nada cases. Despite these consequences, this chapter warns of some limitations inherent in the approach applied by the Strasbourg Court in cases where national executives turn out to be uncooperative.

scholarly journals Finding an Effective Way of Civil Dispute Resolution

Teisė ◽  
2021 ◽  
Vol 118 ◽  
pp. 158-165
Author(s):  
Vladyslava Turkanova
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Case Law ◽  
Legal Doctrine ◽  
National Courts ◽  
European Court ◽  
Civil Dispute

The main purpose of this article is to analize the substance of the civil dispute and their effective settlement on the basis of an analysis of modern Ukrainian legal doctrine and legislation, as well as the case law of the European Court of Human Rights and national courts and taking into account modern approaches to dispute resolution in sociology and conflict.

scholarly journals Problematic issues of administrative responsibility for disrespect for court

2020 ◽  
pp. 17-30
Author(s):  
Olha Soloviova
Keyword(s):  
Human Rights ◽  
Complex Analysis ◽  
International Standards ◽  
The European Union ◽  
Association Agreement ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
The Individual ◽  
Administrative Responsibility

The article is devoted to the legal principles of taking administrative responsibility for disrespect for court. In the work the complex analysis of proceedings in cases of administrative offenses envisaged by Article 185-3 of the Code of Administrative Offenses is carried out. The problematic issues that arise in practice when considering cases of administrative offenses for disrespect for court are outlined. The article examines the individual decisions of national courts in cases of administrative offenses for disrespect for court. The Association Agreement with the European Union Ukraine has declared its agreement to strengthen cooperation in the field of justice, freedom and security in order to ensure the rule of law and respect for human rights and fundamental freedoms, strengthen the judiciary, enhance its efficiency, guarantee its independence and impartiality. Weaknesses of national legislation with respect to international standards of administration of justice are identified. Particular attention is paid to compliance with the principle of impartiality when imposing administrative penalties for disrespect for court. The relevant decisions of the European Court of Human Rights have been analyzed. Suggestions were made to remedy practical problems in order to bring administrative penalties for disrespect for court into conformity with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights. It was concluded that it is necessary to determine the clear jurisdiction of the courts in the consideration of cases of administrative offenses disrespect for court with the introduction of appropriate changes or procedural codes, or the Code of Ukraine on Administrative Offenses. Key words: disrespect for court, administrative responsibility, impartiality, challenge (recusal) of a judge.

scholarly journals The international legal basis for implementation of judgments of the european court of human rights into the domestic legal system

2021 ◽  
pp. 31-35
Author(s):  
Guliam Umid
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Legal Systems ◽  
Legal Certainty ◽  
Progressive Development ◽  
National Courts ◽  
European Court ◽  
International Court ◽  
The Impact

An analysis of the international legal bases of implementation of decisions of the European Court of Human Rights to the national legislations of the member states of the Council of Europe is carried out. Such implementation takes various forms, and in general there is no single implementation mechanism. At the same time, the importance of implementing decisions of the European Court of Human Rights lies in the state's fulfillment of its obligations both to the world community of states and to its own citizens. Forms and methods that ensure the progressive development of national law, taking into account the practice of international courts, are considered. The synthetic research method determines the impact of ECtHR decisions on the structure of national law, which stimulates the transformation of its entire branches. It is demonstrated, how the ECtHR promotes the formation of progressive legal institutions in legal systems, exerting organizational and civilizational influence on the legal systems of states. It is emphasized, that the principle of legal certainty, by which the international court assesses vague and insufficiently clear provisions of national law, is fundamental for the implementation of the case law of the ECtHR into national laws. With this influence, the ECtHR determines the nature of lawmaking and law enforcement in a country. As a result, it is concluded, that the most effective mechanism for implementing the principle of legal certainty in a state is the adoption of general measures, contained in the pilot decisions of the ECtHR. The second important mechanism is the application of the rules of law by national courts, taking into account the case law of the ECtHR, which ensures the interpretation of human rights rules in a way that is most acceptable to the national legal system

Diversity on the Bench of the European Court of Human Rights

2020 ◽  
pp. 479-493
Author(s):  
Angelika Nußberger ◽  
Freya Baetens
Keyword(s):  
Human Rights ◽  
Judicial Process ◽  
National Courts ◽  
Factors Influencing ◽  
European Court ◽  
International Court ◽  
The World ◽  
Individual Justice ◽  
Domestic Level

International courts differ from national courts in terms of the perception of their diversity. Factors that constitute the identity of adjudicators and are perceived as neutral at the domestic level, such as age, former profession, and cultural background, are not necessarily considered neutral in an international court. Conversely, factors that are not seen as acceptable domestically, such as membership of a political party, may be acceptable for judges at the international level. In order to understand the role of international judges in general and those on the European Court of Human Rights (ECtHR) bench in particular, this chapter scrutinizes the factors influencing the world views and personalities of judges and their effects on the judicial process (leaning towards collective or individual decision-making) as well as the extent to which the judiciary is perceived as trustworthy. The chapter also analyses the ECtHR’s continuous battle with the fundamental balancing act of dispensing individual justice while safeguarding the consistency of the system in its entirety. In the final section, the chapter examines the factors that unify the Court despite, or perhaps even because of, its diversity.

scholarly journals Implementation of the legal positions of the European Court of Human Rights in Russian criminal procedure

2020 ◽  
pp. 116-125
Author(s):  
A. L. Osipov
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Legal Standards ◽  
Procedural Law ◽  
National Courts ◽  
European Court ◽  
National Implementation ◽  
Russian Constitution ◽  
State Of Affairs

The article offers an overview of the modern state of affairs in the field of the implementation of legal positions of the European Court of Human Rights (ECtHR) in Russian criminal procedural law and law-enforcement practices. Significant attention is paid to the legal approaches of the Russian Constitutional Court as one the main actors in the national implementation system who pointed out a series of problems in functioning of the conception known as «dialog between the Courts». We research the amendments to the Russian Constitution of 2020 year in respect of it’s meaning to the process of realization of the legal positions of ECtHR in the Russian criminal procedure. With the examples from the modern ECtHR case-law in respect of the Russia root problems in the law regulation of different stages and institutions of criminal procedure are being revealed. The article also offers analysis of the trends in national courts practices with proposals of it’s harmonization with the European legal standards.

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