scholarly journals The Relationship Between the Preliminary Ruling and a Fair Trial — ECHR Prospective

2020 ◽  
pp. 141-155
Author(s):  
Marija Daka
Keyword(s):  
Fair Trial ◽  
Preliminary Ruling ◽  
The Relationship

Reading the Tea Leaves: The Polish Constitutional Tribunal and the Preliminary Ruling Procedure

2015 ◽  
Vol 16 (6) ◽  
pp. 1543-1568
Author(s):  
Aleksandra Kustra
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Tea Leaves ◽  
National Courts ◽  
Legal Provisions ◽  
Constitutional Tribunal ◽  
The Relationship ◽  
The Eu

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.

The Trial of the Expert: ÉÉpreuve and Preuve

2007 ◽  
Vol 10 (1) ◽  
pp. 78-101
Author(s):  
Mireille Hildebrandt
Keyword(s):  
Scientific Knowledge ◽  
Fair Trial ◽  
Complex Relationship ◽  
Scientific Expertise ◽  
The Difference ◽  
The Relationship

This article explores the complex relationship between law and (scientific) expertise. The author first discusses the difference between scientific knowledge and scientific expertise, tracing the historical roots of the concept of proof in a legal rather than a mathematical context. Second, the historical roots of the fair trial are discussed in terms of the premodern éépreuve and the modern preuve, demonstrating the relationship with coordinate and subordinate types of justice. Third, Foucault's analysis of éépreuve, enquêête, and examèèn is extended to clarify how preuve and éépreuve have been integrated into the fair trial, which is explained in relation to the formal and the substantive notions of the "Rechtsstaat." This analysis finally allows the author to discuss the difference between two approaches of scientific expertise in court: one claiming that judges should defer to science and another claiming that a court of law is one of the spaces in which such expertise can be contested. The article concludes that the integration of subordinate and coordinate justice exemplified in the fair trial, opens new perspectives for the testing of scientific expertise, taking into account whose interests are at stake.

scholarly journals The Rule of Law, Fair Trial and Human Dignity: The Protection of EU Values After LM

2021 ◽  
pp. 431-442
Author(s):  
Catherine Dupré
Keyword(s):  
Rule Of Law ◽  
Human Dignity ◽  
Judicial Independence ◽  
Fair Trial ◽  
Mutual Trust ◽  
The Rule Of Law ◽  
The Right ◽  
The Relationship ◽  
The Eu

AbstractThe 2018 CJEU ruling in LM highlighted the importance of judicial independence for the rule of law and protection of the right to fair trial. In so doing, the judgment raised problematic questions about the relationship between Article 2 values and the EU Charter rights, and their connection with mutual trust. This chapter considers these issues through the lens of human dignity, which is both the first foundational value under Article 2 and the first right in the EU Charter. By discussing how the LM judgment raises the constitutional status of the right to a fair trial, this chapter argues that a focus on human dignity could effectively link Article 2 values with EU Charter rights and facilitate assessment of their respective breach.

10. The preliminary ruling procedure

2020 ◽  
pp. 225-250
Author(s):  
Marios Costa ◽  
Steve Peers
Keyword(s):  
European Union ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
The Relationship ◽  
Gain Access

This chapter examines the relationship between the Court of Justice (CJ) and the national courts in the context of the preliminary ruling procedure provided by Article 267 of the Treaty on the Functioning of the European Union (TFEU). The chapter focuses on the text of Article 267 TFEU. It analyses the extent to which national courts are willing and able to gain access to the CJ in order to resolve the questions of European Union (EU) law before them. The chapter also explains the concept of acte clair. The analysis reveals that the CJ has rarely refused its jurisdiction and has interpreted broadly the term ‘court or tribunal’. The CJ has also rarely attempted to interfere with national courts’ discretion in matters of referral and application of EU law, while national courts have generally been ready to refer cases to the CJ.

scholarly journals So Long Solange? The PSPP Judgment of the German Constitutional Court and the Conflict between the German and the European ‘Popular Spirit’

2021 ◽  
pp. 1-34
Author(s):  
Peter HILPOLD
Keyword(s):  
Legal Reasoning ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Mutual Respect ◽  
Court Of Justice ◽  
European Court ◽  
Economic Background ◽  
German Constitutional Court ◽  
The Relationship

Abstract The judgment by the German Constitutional Court (‘BVerfG’) of 5 May 2020 has caused a stir all over Europe. The relationship between the BVerfG and the European Court of Justice (‘ECJ’) has never been an easy one, especially after the Solange judgment of 1974. The Solange jurisprudence has, however, not only been synonymous with conflict and rivalry but also for dialogue and, eventually, mutual respect. With the PSPP judgment, this dialogue seemed to have found an end, while by the order of 29 April 2021 the BVerfG appears to have returned to a more conciliatory tone. Nonetheless, the disruption between Karlsruhe and Luxembourg persists. In this article, the PSPP judgment will be examined in detail, presenting it as the last step of long, contorted jurisprudence. It will be shown that the rupture that occurred in May 2020 was technically unnecessary and rather the result of deep-rooted cultural conflict with a clear economic background. The legal reasoning on both sides—that of the BVerfG and that of the PSPP judgment's most outspoken critics—is problematic at best. While for the time being the BVerfG seems to have learnt the lesson from the conflict provoked by its own judgment, the underlying, substantive conflict is still unresolved. It will be shown that this conflict can only be solved on a political level. Thereby, cultural pre-concepts will have to be overcome. Uncompromising reliance on a national ‘popular spirit’ (Volksgeist) will not offer a way out but neither will, for the time being, exclusive reference to a European Volksgeist ignoring Member State realities. The ‘weighing and balancing’ the BVerfG has missed in the previous Weiss ECJ preliminary ruling (again on the PSPP programme) will have to take place on a far broader scale.

Confrontation and Compulsory Process: U.S. and European Approaches Compared

2012 ◽  
Vol 9 (2) ◽  
Author(s):  
William E. O'Brian
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Sixth Amendment ◽  
Hearsay Rule ◽  
The Right ◽  
The Relationship ◽  
The U.S

This paper discusses the relationship between the English hearsay rule and the principles governing the right to a fair trial under Article 6 of the European Convention on Human Rights. While the provisions serve similar purposes, they do not always produce the same result. Two sorts of cases are discussed: cases where the hearsay rule admits evidence that should be excluded because it violates the defendant’s right to examine or have examined the witnesses against him, and cases where the hearsay rule excludes evidence that should be admitted to protect the defendant’s right to a fair trial. The treatment of these cases is contrasted to the treatment of similar cases under the Sixth Amendment to the U.S. Constitution.

When Can a Reference for a Preliminary Ruling be Made?

2021 ◽  
pp. 141-200
Author(s):  
Morten Broberg ◽  
Niels Fenger
Keyword(s):  
Direct Action ◽  
The Other ◽  
Preliminary Ruling ◽  
Court Of Justice ◽  
Other Hand ◽  
The One ◽  
The Relationship

Chapter 5 discusses the requirement that an answer to the preliminary question must be relevant for the resolution of the main proceedings. It analyses when a preliminary ruling must be assumed to be irrelevant to the decision in the main proceedings, and it discusses the so-called Foglia principle according to which the Court declines jurisdiction to reply to questions of interpretation which are submitted to it within the framework of a contrived case. Chapter 5 also examines when a preliminary reference is precluded because the same issue is, has been, or could be subject to a direct action before the Court of Justice. Here it first examines the relationship between, on the one hand, the preliminary procedure and, on the other hand, Articles 258 and 259 TFEU concerning infringement proceedings. Next, it analyses the relationship between the preliminary procedure and Article 263 TFEU concerning actions for annulment before the Court of Justice (TWD-doctrine).

A Referral Process to the Commission on the Limits of the Continental Shelf in the Delimitation of the Continental Shelf beyond 200 M Process: An Appraisal

2020 ◽  
Vol 35 (4) ◽  
pp. 682-703
Author(s):  
Sandrine W De Herdt
Keyword(s):  
Continental Shelf ◽  
The State ◽  
Law Of The Sea ◽  
Referral Process ◽  
Preliminary Ruling ◽  
International Tribunal ◽  
International Courts ◽  
Reference Procedure ◽  
Legal Challenges ◽  
The Relationship

Abstract Proposals have been flagged by judges at the International Tribunal for the Law of the Sea and legal scholars to develop the relationship between the Commission on the Limits of the Continental Shelf (CLCS) and international courts and tribunals regarding the proof of existence of continental shelf entitlement. It has been suggested international courts and tribunals request ‘expert assistance’, make a ‘reference procedure’, or seek a ‘preliminary ruling’ from the CLCS in order to verify the State party’s entitlement to a continental shelf beyond 200 nautical miles when the delimitation process occurs in the absence of recommendations issued by the CLCS. This article assesses the potential for a referral process bridging the relationship between the CLCS and courts and tribunals. It considers more specifically the necessity of such a mechanism and the legal challenges that are likely to arise in its establishment.

The Flipside of Complementarity

2019 ◽  
Vol 17 (2) ◽  
pp. 369-390
Author(s):  
Patryk I Labuda
Keyword(s):  
Human Rights ◽  
Rome Statute ◽  
Democratic Republic Of Congo ◽  
Active Role ◽  
Case Law ◽  
Fair Trial ◽  
Criminal Court ◽  
Double Jeopardy ◽  
The Hague ◽  
The Relationship

Abstract A variety of human rights dilemmas were left unresolved in Rome. One issue likely to generate controversy is the relationship between the prohibition of double jeopardy, complementarity and minimal fair trial protections for defendants. Under the Rome Statute’s complementarity framework, the International Criminal Court (ICC) must defer to domestic proceedings if a state is handling the same case and the national authorities are not ‘unable or unwilling’ to prosecute the same person. Much ink has been spilt on Article 17 of the Statute and the ensuing case law, but less understood is the flipside of complementarity: under what circumstances is a state not allowed to prosecute defendants over whom the ICC has already exercised jurisdiction? With the case against Germain Katanga in the backdrop, this article argues that the ICC should take a more pro-active role in supervising secondary domestic proceedings against people previously convicted or acquitted in The Hague. Katanga’s return to the Democratic Republic of Congo to serve the remainder of his ICC-mandated sentence triggered a domestic trial implicating a variety of fair trial issues. Under a seldom-used provision in the Rome Statute, Article 108, the ICC Presidency was required to validate or reject Congo’s proceedings against Katanga. Not only did the Presidency allow his case to proceed, it prospectively abdicated any international oversight of national trials, while advancing sweeping normative claims about the irrelevance of human rights to the permissibility of secondary domestic trials. Three years later, Katanga languishes in a Congolese prison with little prospect of justice. Although the Katanga case is based on a unique set of facts, analogous developments in the cases against Saif Al-Islam Gaddafi and Jean-Pierre Bemba point to the growing likelihood of secondary domestic proceedings against people previously tried by the ICC, which in turn raises fundamental questions about the Rome Statute’s prohibition of double jeopardy and its relationship to complementarity and fair trial guarantees.

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