Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain

2021 ◽  
Vol 7 (3) ◽  
pp. 379-398
Author(s):  
David Parra Gómez
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Social Rights ◽  
Institutional Reforms ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
Division Of Powers ◽  
European Democracy ◽  
Aggressive Interference

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

Niedbala v. Poland

2000 ◽  
Vol 11 (7-8) ◽  
pp. 355-359
Keyword(s):  
Rule Of Law ◽  
Minimum Degree ◽  
Democratic Society ◽  
Judicial Power ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
Degree Of Protection ◽  
Order Release ◽  
Domestic Law

The officer who is to review the circumstances militating for and against detention and to decide, by reference to legal criteria, whether there are reasons to justify detention and to order release if there are no such reasons must satisfy certain conditions providing a guarantee to the person detained against any arbitrary or unjustified deprivation of liberty. Thus, the “officer” must be independent of the executive and of the parties. In this case applicant was deprived of liberty by a decision of a prosecutor who had not been a judge or other officer authorised by law to exercise judicial power. Furthermore, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The procedure must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question, in particular, in the proceedings in which an appeal against detention order is being examined, “equality of arms” between the parties must be ensured. Domestic law on control of mail of prisoners must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society.

The settlement of disputes of a constitutional nature: inside the Romanian Constitutional Court s rulings on the role and competences of the public authorities

2018 ◽  
pp. 51-70
Author(s):  
TUDOREL TOADER
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
The Subject ◽  
Constitutional Justice ◽  
Settlement Of Disputes

The separation and balance of State powers constitute the basis of the rule of law. Observance of this principle requires framing of public authorities within the limits of competence established by the Constitution and the law, as well as loyal cooperation between them. From this perspective, the attribution of the constitutional courts for settling legal disputes of a constitutional nature is an important tool for correcting the tendencies of violation of these limits, as well as for identifying solutions for situations that do not find an explicit regulation in the constitutional texts. The present study analyses the jurisprudence of the Constitutional Court of Romania in the field of legal disputes of a constitutional nature, revealing, together with the presentation of dispute situations, the vulnerabilities of the constitutional reference texts. It is also highlighted the role of the constitutional courts in the evolution of constitutional law institutions. The conclusion of the study, beyond the subject of legal disputes of a constitutional nature, bears on the necessity, even more so in this matter, of the certainty of jurisdictional interpretation. This certainty cannot be achieved as long as the interpretation is not authoritative; consequently, the assurance of the effectiveness of constitutional justice constitute a key issue of the rule of law.

THE CONDITIONS FOR THE FORMATION OF THE SYSTEM OF THE RULE OF LAW IN RUSSIA

2020 ◽  
pp. 204-210
Author(s):  
Nikita S. Grudinin
Keyword(s):  
Rule Of Law ◽  
Russian Federation ◽  
Separation Of Powers ◽  
The State ◽  
Social Progress ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Russian Federation ◽  
Constitutional System ◽  
The Stability

The article is devoted to the study of the conditions for the formation of a truly legal state in the Russian Federation. It is noted that the process of formation of the system of the rule of law requires signifi cant efforts both by the state and by society. It is also emphasised that the key conditions that can ensure the effective functioning of the rule of law in Russia are the respect of the provisions of the Constitution of 1993 by citizens and the willingness to comply with those provisions in cooperation with the state, the independence of the judiciary, the real and rational separation of powers, the functioning of legislative bodies in accordance with the interests of citizens of the Russian Federation. According to the author’s opinion, trust in the Constitution and its ability to ensure social progress in general is the basis for strengthening the legal statehood of the Russian Federation in the long term. The author concludes that the strength of the construction of legal statehood in Russia is based on the stability of the constitutional system and the supremacy of the Constitution of the Russian Federation, its ability to subordinate to its action all citizens of the country and offi cials of public authorities.

scholarly journals La revisión del modelo de gestión pública : efectos de la reposición del ámbito privado en el marco jurídico público

2011 ◽  
Author(s):  
Julián Torrado Sancho
Keyword(s):  
Rule Of Law ◽  
Public Management ◽  
Legal Framework ◽  
Public Authorities ◽  
Public And Private ◽  
The Rule Of Law ◽  
The Public ◽  
The Status ◽  
Transformation Processes

Los procesos de transformación en la Gestión Pública han actuado en las funciones y organización de la Administración, produciendo cambios que han afectado tanto a las relaciones entre el ámbito público y privado, en el seno de los poderes públicos y sus órganos administrativos, como entre los procedimientos técnicos y jurídicos que los conforman. Una revisión de estos fenómenos lleva a la necesidad de realizar un estudio más profundo y objetivo acerca del papel del marco jurídico público y, especialmente, el régimen jurídico administrativo, ante la necesidad de abrir nuevos enfoques y perspectivas sobre la situación del Estado de Derecho.The transformation processes in public management have acted on the functions and organization of the administration, producing changes that have affected both the relationships between the public and private, within public authorities and administrative bodies, and between technical and legal procedures that conform. A review of these phenomena leads to the need for a more thorough and objective study on the role of public legal framework, especially the administrative legal system, given the need to open up new approaches and perspectives on the status of the rule of law.

Part IV Independent Constitutional Institutions, 15 The Public Prosecutor and the Rule of Law in Anglophone Africa

2016 ◽  
Author(s):  
Jowell Jeffrey
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Public Prosecutor ◽  
The Rule Of Law ◽  
The Public ◽  
The Law ◽  
Individual Decisions

This chapter examines the role of the public prosecutor in Anglophone Africa, in the light of two constitutional principles: the separation of powers and the rule of law. It considers the extent to which the prosecutor’s role, and his individual decisions, ought to be separated from ‘policy’ or ‘party-political’, or otherwise ‘partisan’ considerations. How ‘objective’ should (or can) he be? The chapter also considers to what extent the prosecutor’s constitutional role and institutional functions require him to be insulated from judicial review. In the context of government lawyers acting as guardians of the rule of law, the chapter looks at the extent of the prosecutor’s discretion to enforce and not to enforce the law. Finally, it asks whether there may be ways to structure his discretion in the interest of the rule of law.

scholarly journals In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law

2009 ◽  
Vol 22 (1) ◽  
pp. 187-203 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Public Reason ◽  
Separation Of Powers ◽  
Political Judgment ◽  
The Rule Of Law ◽  
The Public ◽  
The Common ◽  
Fundamental Law

Alan Brudner’s closely-argued, richly-textured and wide-ranging work, Constitutional Goods, provides a striking and original account of the rule of law and its implications for legitimate government. Since the rule of law includes the enforcement of substantive principles ofjustice, it requires a clear separation of powers between court and legislature. The role of the court is chiefly confined to pure practical reason, determining what the public reason of the liberal consti-tution requires. It is the role of the legislative assembly to give its assent to governmental measures that apply the principles ofjustice to empirical circumstances, where the scope for reasonable disagreement provokes a transition from natural law to political judgment. Judicial review carries no anti-democratic implications because it defends the conceptual boundaries of popular decision-making: ‘Democracy is not defeated but protected if the court invalidates a law no free person could impose on himself, for the majority has no more authority to pass such a law than an autocrat nor any jurisdiction to decide by fiat a question to which there is a correct legal answer.’

scholarly journals Peculiarities of implementation of principles of administrative judiciary in disputes on the provision of administrative services

2020 ◽  
Vol 1 (1) ◽  
pp. 275-281
Author(s):  
Olena Osipova
Keyword(s):  
Rule Of Law ◽  
Court Cases ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Administrative Services ◽  
The Public ◽  
Accurate Definition ◽  
Venice Commission ◽  
Definition Of ◽  
Administrative Justice

The article is devoted to the research of the problem of accurate definition and consolidation in the Code of Administrative Justice of Ukraine of the system and the content of certain principles of this type of justice, in particular competitiveness, dispositiveness, official clarification of the circumstances of the case, the rule of law and others. At the same time, special attention is paid to the peculiarities of implementation of the above principles in the consideration of court cases related to the provision of administrative services by the authorities. The essence of these features lies in certain restrictions on the principles of competitiveness and dispositiveness in order to balance the powers of the parties to the trial, which requires additional procedural guarantees and assistance to the plaintiff in the collection and extraction of evidence. In doing so, the court must preserve the impartiality and objectivity of the trial. In addition, the author emphasizes on the diversity of definitions of the content of the concept of the principle of administrative justice by scientists, and substantiates his definition of the concept of the principle of administrative justice and his vision of the list and content of the principles of administrative justice in the current Code of Administrative Justice of Ukraine. In particular, it is proposed to supplement the list of administrative justice principles with the principles of the greatest facilitation of access to court; the inevitability of the responsibility of the authorities for their misconduct, inaction or decision; non-interference of the court with the discretionary powers of the public authorities. The paper concludes that the rule of law must be stated in Art. 8 of the Constitution of Ukraine and the procedural codes, including Art. 6 of the Code of Administrative Judiciary of Ukraine, in the formulation of paragraph 41 of the report of the Venice Commission of April 4, 2014 №512 / 2009.

LEGAL ESSENCE OF ANCIENT PROVERBS AND SAYS AND THEIR SOCIAL SIGNIFICANCE

2020 ◽  
Author(s):  
Angela Dranishnikova ◽  
Ivan Semenov
Keyword(s):  
Public Sphere ◽  
Rule Of Law ◽  
Social Significance ◽  
The Rule Of Law ◽  
The Public ◽  
Moral Standards ◽  
The Social ◽  
The Law ◽  
The Public Sphere ◽  
Status Position

The national legal system is determined by traditional elements characterizing the culture and customs that exist in the social environment in the form of moral standards and the law. However, the attitude of the population to the letter of the law, as a rule, initially contains negative properties in order to preserve personal freedom, status, position. Therefore, to solve pressing problems of rooting in the minds of society of the elementary foundations of the initial order, and then the rule of law in the public sphere, proverbs and sayings were developed that in essence contained legal educational criteria.

The Rule of Law and the Public Transcript

2020 ◽  
Vol 66 (4) ◽  
pp. 498-518
Author(s):  
Michelle Dionne Thompson
Keyword(s):  
Rule Of Law ◽  
The Rule Of Law ◽  
The Public
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