scholarly journals Lustration of Judges in Ukraine: National Insights and European Implications

This article primarily focuses on the Ukrainian judge lustration, analysed from diverse aspects. Ukraine’s legal lustration framework engenders two legal acts— the Law On Restoring Trust into Judicial Power in Ukraine (2014) and the law On Purification of Government (2014). Social feedback on adopting these Laws, their key objectives, provided instruments and efficiency issues are discussed. This research particularly scrutinises the fundamental European lustration standards, referencing a few European countries’ experiences: Albania, Bosnia and Herzegovina, Poland. Deep insight into national lustration procedures is given, considering the European Court of Human Rights’ relevant rulings and the Ukrainian Constitution’s provisions. Remarks on whether all lustration laws comply with the Ukrainian Constitution are offered. Addressing the High Council of Justice’s precedents, a judicial body entitled to verify the judges’ lustration results, an in-depth empirical analysis of those procedural results are provided. Overall, Ukrainian lustration embodies a unique phenomenon due to strong social demand formalized in specially designed regulation.

2017 ◽  
Vol 3 (9) ◽  
Author(s):  
Milan Blagojević

The subject of this paper is one model developed in practice of theCourt of Bosnia and Herzegovina, and it is related to unconstitutional retroactiveimplementation of incrimination crimes against humanity. Foundationsof this problem are laid in the decisions of Hague Tribunal, andthen in the decisions of the European Court for Human Rights. These decisionsare afterwards accepted without any critique in practice of the Courtof Bosnia and Herzegovina in criminal proceedings led regarding this incrimination.This is the model of disturbed precedenting of the law. In thepaper this problem has been clarified by the author on one case from theCourt practice, which unfortunately is not the only example in reality. Theessence of this problem is in the Court sentencing verdicts reached againstindividuals. Namely, assertions that widespread and systematic attackagainst civilian population is carried out by the Army and Police of the Republicof Srpska are expounded in these verdicts, but not confirmed by validproofs and arguments. This is the way for criminal sentencing of not onlyindividuals (natural persons) but the Republic of Srpska as well, withoutenabling it to defend itself from such unfounded accusations. When theCourt of Bosnia and Herzegovina is trying to find arguments for such verdictsin the decisions of the Hague Tribunal and in the decisions of theEuropean Court of Human Rights, it is defective since decisions of these internationalinstitutions are defective as well. All this in final can cause seriousconsequences against the Republic of Srpska, which (these consequences)can be not only of criminal nature but of constitutional nature aswell.


Author(s):  
Yaroslav Skoromnyy ◽  

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».


2014 ◽  
Vol 27 (2) ◽  
pp. 419-445 ◽  
Author(s):  
PIETRO SULLO

AbstractThis article discusses the Rwandan Law 18/2008 on genocide ideology in the light of international human rights standards. In order to put the genocide ideology law into context, it sketches a brief overview of the post-genocide scenario. Because of the influence that provisions restricting freedom of expression aimed at fighting negationism might exert on testimonies during genocide trials, it pays particular attention to the transitional justice strategies adopted in Rwanda. Finally, it assesses the law on the genocide ideology against the background provided by the measures implemented in some European countries to deal with the phenomenon of negationism.


2003 ◽  
Vol 52 (2) ◽  
pp. 297-332 ◽  
Author(s):  
Emmanuel Voyiakis

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.


2010 ◽  
Vol 6 (2) ◽  
pp. 309-333 ◽  
Author(s):  
Samo Bardutzky

On 22 December 2009, the Grand Chamber of the European Court of Human Rights (hereafter: the Court) issued a judgment on the applications filed by two citizens of Bosnia and Herzegovina, Mr Dervo Sejdić and Mr Jakob Finci. It found a violation of their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms and under the Protocols to the Convention. Bosnia and Herzegovina had violated the applicants' rights under Article 14 of the Convention in conjunction with Article 3 of Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms and under Article 1 of Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms.


Author(s):  
Egidijus Küris

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.


2018 ◽  
Vol III (I) ◽  
pp. 1-9
Author(s):  
Muhammad Rizwan ◽  
Manzoor Ahmad ◽  
Syed Asif Anwar Bukhari

Soon after its creation, Pakistan confronted many issues including refugee problem, scarcity of able political leadership, absence of mutual consensus between both wings of the country and confusing nature of the relationship between Islam and state etc. took almost nine years to frame the permanent constitution for Pakistan. Constitution, the basic document of a state, determines the shape of its laws, structure of governance and system of rights and duties. The effectiveness of a constitution is judged by its practicability in the given area where it is enforced by the state machinery. Although, all civilized states of the world do possess a constitution, yet a good constitution is one which must protect the basic human rights by ensuring the independence of judiciary. Due to countless hurdles at the beginning of its journey, Pakistan’s constitutional development in the right direction could not take place. The main objective of the present study is to provide deep insight into the events and factors causing a delay in the constitution-making for the newly created state of Pakistan. The various events which took place from 1947 to 1956 have been analyzed in a subtle way.


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