scholarly journals RULE OF LAW IMPLEMENTATION INTO THE ADMINISTRATIVE PROCESS IN UKRAINE

2021 ◽  
Vol 1 ◽  
pp. 73-80
Author(s):  
Іnnа Pozigun
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Practice ◽  
Public Authorities ◽  
Administrative Process ◽  
The Rule Of Law ◽  
National Courts ◽  
European Court ◽  
Systematic Training ◽  
Western Law

The relevance of the study is stipulated by the necessity to determine the directions of the rule of law implementation (as a fundamental value of Western law culture) into the national law system. The statistics of the European Court of Human Rights, the study of the rule of law index in the world, the decisions of national courts as to the rule of law principle implementation are analyzed, some decisions of the European Court of Human Rights as to the rule of law are processed. Emphasis is placed on the impossibility of adequate study of the rule of law within the normative understanding of law. The rule of law can function only if the provisions of the natural and law understanding of law are implemented. Only by realizing what the rule of law is can it be implemented into legal practice. It is noted that the analysis of national courts’ judgments allowed experts to draw a number of conclusions about the inappropriate level of the rule of law principle application by domestic judges, which is usually brought to quoting individual judgments of the European Court of Human Rights (mostly the same) or references to articles of the Convention on Human Rights and Fundamental Freedoms (the implicit content of the human rights enshrined in these articles is not disclosed). The following areas of the rule of law implementation are noted and characterized. First, the ideological direction: given that the principle of the rule of law is inherent in Western tradition of law based on a natural understanding of law, and is incompatible with the normative school of law, to which indicates the lack of understanding of the content of this principle by a number of judges, then without changing the legal paradigm further implementation of the rule of law principle has no sense. Only by realizing what the rule of law is, it can it be implemented into legal practice. This direction involves radical changes in the system of national law, which can occur only due to involvement of public authorities in legal values. Secondly, the scientific and practical direction: if within the first direction the emphasis is on future employees of public authorities, this direction concerns those persons who implement the state policy in life today. A prerequisite for holding a position in public authorities should be a systematic training, an integral part of which should be mastering the subject within which employees will learn about the understanding of human rights, their implicit nature, the rule of law principle, study the practice of the European Court of Human Rights. Third, the normative and legal direction: the necessity of adoption of the legal act which will systematically define the order of realization of administrative process is proved.

scholarly journals THE PRINCIPLE OF THE RULE OF LAW AS A UNIVERSAL BASIS FOR ADMINISTRATIVE JUSTICE

2020 ◽  
pp. 90-95
Author(s):  
Zh. M. Melnyk-Tomenko
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Value ◽  
Legal Certainty ◽  
Administrative Process ◽  
The Rule Of Law ◽  
Non Fiction ◽  
European Court ◽  
The Law ◽  
Administrative Justice

In the article, on the basis of a generalized analysis of scientific and non-fiction sources, the content of the principle of the rule oflaw as a basis of administrative justice is determined. It is emphasized that the rule of law is one of the fundamental “pillars” of the systemof principles of the administrative process, its foundation. Its prominent role for the administrative process, including its reflectionand consolidation in the provisions of the Code of Administrative Justice of Ukraine. The breadth and ambiguity in the views on thiscategory make it possible to single out several interpretations of the rule of law in domestic legal (including administrative) doctrine. As a result, the author stated that the principle of the rule of law, as a universal basis of administrative justice, is the initial, fundamentalbasis of the administrative process, according to which the administrative court in the decision of the case proceeds from thefact that the law is “higher” than the law, and administrative-processual relations as a whole are built on the formula: a person, his lifeand health, honor and dignity, integrity and security are recognized in Ukraine as the highest social value. It is emphasized that the principle of the rule of law, now among the general characteristics, is a certain set of guidelines andrequirements for administrative justice, formulated by the European Court of Human Rights, including the principle of accessibilityof justice, legality, legal certainty, prohibition of arbitrariness, observance of human rights non-discrimination and equality before thelaw and the court, etc. It is noted that the principle of the rule of law is not limited to these requirements and characteristics, since theEuropean Court of Human Rights systematically enriches its value with new permanent features and conditions of adherence in specificcases (including those to which Ukraine is a party).

scholarly journals ROLE OF JUDGES’ DIALOG IN PROVING OF THE RULE OF LAW

2017 ◽  
pp. 0-0
Author(s):  
Ханлар Гаджиев ◽  
Khanlar Gadzhiev
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Relations ◽  
European Convention ◽  
The Rule Of Law ◽  
National Courts ◽  
European Court ◽  
Protection Of Human Rights ◽  
Legal Space

The article discusses the problem of interpretation of the provisions of the European Convention on human rights by European Court of Human Rights, as well as the development of dialogue between judges of different levels, aimed at the formation of the European “common” law. Placing at the forefront the principle of the rule of law as the basis for all the guarantees of human rights, the author substantiates the necessity of the interaction of various levels courts, based on mutual respect, dialogue of the courts, what will undoubtedly lead to the enrichment of the legal system, searching for the most complete and effective regulation of social relations. According to the author, the effectiveness of interaction between courts is based primarily on a shared understanding of the importance of the activities of ECtHR judges in the development of common approaches to the protection of human rights and consolidation of the efforts in search of forming a common legal space. Using the example of some cases considered by the ECtHR, the article illustrated the options of interaction of the Court with national courts. The article reveals some problematic issues in the activity of the ECtHR, in particular the lack of involvement the principle of harmonious interpretation.

scholarly journals The rule of law as a principle of administrative process implementation experience within the framework of western legal culture

2021 ◽  
pp. 229-233
Author(s):  
I.O. Pozigun
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Social Relations ◽  
Legal System ◽  
Legal Culture ◽  
Public Authorities ◽  
Administrative Process ◽  
The Rule Of Law ◽  
National Legal System ◽  
Implementation Experience

The relevance of the article is stipulated by the necessity to implement the rule of law requirements into the national legal system, in particular, in the administrative process, The following factors are indicated as factors that necessitate recourse to the experience of Western legal culture: the concept of the rule of law is the achievement of European culture; Ukrainian legal doctrine to this day has not largely departed from the doctrine of the principle of legality. It is noted that for the domestic legal science the issue of the rule of law is relatively new, which determines the state of its knowledge. At the beginning of the formation of the national system of law, translations of papers by foreign authors on the rule of law mostly distorted the interpretation of the phenomenon of the rule of law as the rule of the law. Emphasis is placed on the fact that the implementation of the rule of law, its implementation in the regulation of social relations indicates that the relationships between people, as well as the relationship between a person and public authorities are based on the requirements of legal norms; that all subjects of social relations are governed by law, not by force. It is indicated that for the domestic legal activity the implementation of the rule of law (including into the administrative process) should be carried out by way of the human rights provision (and, accordingly, the rights of the subjects of the administrative process). It is substantiated that the aspect of the rule of law principle implementation experience by European states, which is connected with the realization of the stated intentions, is crucial. The connection between law and morality in the context of soft law formation is highlighted. Based on the European Court of Human Rights practice analysis, the following legal provisions are identified in the context of the subject matter: the implementation of the rule of law within Western states necessitates effective public control over the activities of executive bodies as to restricting human rights and fundamental freedoms; the implementation of the rule of law principle within Western states necessitates the harmonization of the law and order over time and the legal certainty of legal acts. It is summarized that having proclaimed the principle of the rule of law as a component of the national legal system, its foundation, it is crucial for public authorities to study and borrow the experience of European states in implementing the requirements of this fundamental principle in state building.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

scholarly journals On the rule of law and the quality of the law: reflections of the constitutional-turned-international judge

2019 ◽  
pp. 131
Author(s):  
Egidijus Küris
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Tradition ◽  
The Rule Of Law ◽  
Derechos Humanos ◽  
European Court ◽  
The Law

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.

scholarly journals A Judicial Review of the De Facto Detention of Foreigners in Turkey

2020 ◽  
Vol 10 (2) ◽  
pp. 143-153
Author(s):  
Gamze Ovacik
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Framework ◽  
Court Decisions ◽  
Administrative Practices ◽  
The Rule Of Law ◽  
European Court ◽  
Domestic Law

The term, de facto detention, refers to instances in which foreigners are held or deprived of their liberty usually with a view to preventing their entry into a country or expelling them from a country, but without implementing a legally prescribed detention regime that satisfies the criteria of the rule of law. The first type of de facto detention occurs when provisions regulating detention are absent or deficient in the legal framework. The second type takes place when domestic law sufficiently regulates detention regimes; however, the law is not duly implemented in practice. This article examines judicial practices in Turkey in both categories of de facto detention, analysing 37 Turkish court decisions with supporting case law from the European Court of Human Rights. Focusing on case law makes it possible both to track deficiencies in administrative practices and to analyse judicial response as a tool for rectifying unlawful administrative practices.

scholarly journals The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal

2021 ◽  
pp. 1-15
Author(s):  
Başak Çalı ◽  
Esra Demir-Gürsel
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Political Context ◽  
Secretary General ◽  
Special Issue ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
European Court ◽  
Institutional Features ◽  
Venice Commission

Abstract This article introduces the Special Issue on ‘The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections’. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE’s ability to produce timely, consistent, and co-ordinated responses against systemic threats.

scholarly journals PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva
Keyword(s):  
Rule Of Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
National Courts ◽  
Administration Of Justice ◽  
Administrative Courts ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

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