scholarly journals Basic international and European standards in the field of justice and their impact on ensuring the consistency of judicial practice

1970 ◽  
pp. 74-80
Author(s):  
Petro Rudyk
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Standards ◽  
Council Of Europe ◽  
Basic Principles ◽  
Legal Standards ◽  
Judicial Practice ◽  
The Supreme Court ◽  
European Standards

Ukraine's integration into the European Union binds the former to approximate its legislation to international and European standards in various fields, including justice. This is also prompted by the EU-Ukraine Association Agreement and by the need for judicial reform, subject to the amendments to the Constitution of Ukraine of June 2016. The purpose of the article is to disclose basic international and European standards in the field of justice and their role in ensuring the consistency of judicial practice, which has not been studied in this aspect before. Scholars have different approaches to defining the concept of "international" and "European" legal standards in the field of justice and their division into types. The author proposes the understanding and definition of these concepts and the division of international standards into two main groups: 1) basic generally recognized international standards, that is binding international legal standards; and 2) special international standards in the field of justice that are advisory. The first group consists of the basic internationally recognized standards enshrined in UN human rights instruments, which are closely related to justice and include, in particular, everyone's entitlement to a fair and public hearing by a competent, independent and impartial tribunal. They are enshrined in the Universal Declaration of Human Rights (Article 10), the International Covenant on Civil and Political Rights (Article 14), the European Convention on Human Rights (Article 6, paragraph 1). These basic international standards are binding for democratic countries in the world and in Europe, in particular for Ukraine, as they have been ratified by it. A clear understanding of and adherence to mandatory basic internationally recognized international standards by courts of all tiers will help to ensure the consistency of judicial practice. The second group of international standards in the field of justice consists of the Basic Principles on the Independence of the Judiciary, approved by the resolutions of the UN General Assembly (1985), the Bangalore Principles of Judicial Conduct, approved by the UN Economic and Social Council Resolution (2006), recommendations of the Committee of Ministers of the Council of Europe, and opinions of the Consultative Council of European Judges for the attention of the Committee of Ministers of the Council of Europe, etc. They emphasize the need to adhere to such basic international standards as guaranteeing the independence of the judiciary by the state and enshrining them in the constitution or laws of the country, and define such basic principles of the functioning of the judiciary and judges as independence, objectivity, honesty, incorruptibility, observance of ethical rules, equal treatment of all parties to the proceedings, competence and diligence of courts, and so forth. Compliance with these general international standards in the field of justice will help to ensure the integrity of the judiciary in the interests of a person. Such standards and specific recommendations for ensuring the integrity of the judiciary are broadly outlined in the Consultative Council of European Judges Opinion on the Role of Courts in Ensuring the Unity of Law (2017), namely the importance of uniform application of the law, the possibility of the use of precedents, the paramount role of the Supreme Court in ensuring the integrity of the judiciary, the creation of a mechanism for filtering appeals, the inadmissibility of conflicting decisions, the importance of the role of the courts of appeal, the solid reasons for deviation from previous judicial practice, the compliance with the reporting system of courts, the application of previous decisions to specific cases, the ensuring of the principle of independence of judges, the use of various mechanisms to ensure the integrity of judicial practice. These issues were also discussed during the presentation of the Opinion in Ukraine and holding the conference Integrity of judicial practice: the view of the European Court of Human Rights and of the Supreme Court (2019).

Slovo of the National School of Judges of Ukraine

2021 ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Judicial Reform ◽  
Council Of Europe ◽  
Judicial Practice ◽  
National School ◽  
The Supreme Court ◽  
Grand Chamber ◽  
The Impact

The special edition of the national professional scientific and practical legal magazine “The Slovo of the National School of Judges of Ukraine” was published, which contains reports delivered at the online conference "Ensuring the unity of judicial practise: the legal positions of the Grand Chamber of the Supreme Court and standards of the Council of Europe", held on the occasion of the third anniversary of the Grand Chamber of the Supreme Court. time of thematic sessions and webinars for judges of each of the courts of cassation in the Supreme Court, as well as joint sessions for judges of different jurisdictions at the end of 2020. The National School of Judges of Ukraine held these events together with the Supreme Court and in synergy with the Council of Europe projects "Support to Judicial Reform in Ukraine", "Further Support for Ukraine's Implementation in the Context of Article 6 of the European Convention on Human Rights", USAID New Justice Program, OSCE Project Coordinator in Ukraine. These are projects that support various aspects of judicial reform in Ukraine, compliance with Council of Europe standards and recommendations, offering best practices from member states to help make priorities in the national reform process. The conference and training events were attended by more than 550 participants - judges of the Supreme Court, other courts, leading Ukrainian and foreign experts, representatives of the legal community. Trainers and all structural subdivisions of the National School of Judges of Ukraine were involved, the training activities of which were identified by the CCEJ in one of its conclusions as one of the important tools to ensure the unity of judicial practice. Programs of activities included reports on the role of the Grand Chamber of the Supreme Court in ensuring the unity of judicial practice and the impact on the legal system; unity of judicial practice in the context of standards - improving access to justice in Ukraine: removing procedural obstacles and ensuring the right to an impartial court, approaches to identifying cases of minor complexity and cases of significant public interest or exceptional importance for a party in the context of access to court of cassation: practice the supreme courts of the member states of the Council of Europe and the European Court of Human Rights; key positions of the Supreme Court - application of the provisions of the procedural codes on the grounds for transferring the case to the Chamber, the joint chamber or the Supreme Court, the impact of its decisions on legislative activity, ensuring the specialization of courts and judges, the practice of the Supreme Court of the Supreme Court on administrative cases, the practice of considering cases of disciplinary liability of judges, conclusions on the rules of criminal law, review of court decisions in criminal proceedings in exceptional circumstances; the impact of the case law of the European Court of Human Rights on the case law of national courts and the justification of court decisions and the "balance of rights" in civil cases in its practice, the development of the doctrine of human rights protection; ECtHR standards on evidence and the burden of proof, the conclusions of the CCEJ and their reflection in judicial practice; judicial rule-making in the activities of European courts of cassation, etc. The issues raised are analyzed in the Ukrainian and international contexts from report to report, which, we hope, will be appreciated by every lawyer - both practitioners and theorists. As well as the fact that the depth of disclosure of each of the topics through the practice of application serves the development of law and contributes to the formation of the unity of judicial practice of the Supreme Court, the creation of case law is a contribution to rulemaking and lawmaking. The conversion of intellectual discourse into the practice of Ukrainian courts is an important step towards strengthening public confidence in the judiciary. And here the unifying force of the Supreme Court can be especially important, as the Chairman of the Supreme Court Valentyna Danishevska rightly remarked, speaking about the expectations of the society.

scholarly journals Implementation of International Legal Standards in the Revision of the Judgements that are in Force by Supreme Court of Finland

2015 ◽  
Vol 3 (3) ◽  
pp. 54-65
Author(s):  
Vladimir Jilkine
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Legal System ◽  
Court Decisions ◽  
Legal Standards ◽  
Judicial Practice ◽  
European Court ◽  
The Supreme Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article deals with the basis and procedure for review of court decisions that have entered into force, after the rulings of the European Court of Human Rights on violations of the Convention for the Protection of Human Rights and Fundamental Freedoms in review of the cases by the Supreme Court of Finland, in connection with the decision by which the applicant appealed to The European Court of Human Rights. The author’s analysis and comparison of judicial practice and the European legal system shows that when making decisions, the Supreme Court applies current national constitutional and legislative provisions.

scholarly journals Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

2019 ◽  
Vol 56 (3) ◽  
pp. 667-683
Author(s):  
Mirza Čaušević
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Bosnia And Herzegovina ◽  
General Information ◽  
Direct Discrimination ◽  
The Supreme Court ◽  
The Law ◽  
Court Proceedings ◽  
The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

scholarly journals (Just) Give Me A Reason …

2018 ◽  
Vol 27 ◽  
pp. 12-35
Author(s):  
Julia Laffranque
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
European Convention ◽  
Eu Law ◽  
European Union Law ◽  
National Courts ◽  
The Supreme Court ◽  
Summary Judgment

Judicial systems often wrestle with whether to sacrifice always presenting thorough judicial reasoning for the sake of an effective leave-to-appeal system. The paper outlines issues of reference to the Luxembourg Court, particularly with regard to Estonian circumstances in light of the ECtHR judgment in Baydar v. the Netherlands. The interplay between EU law and the European Convention on Human Rights in this regard is considered first, along with the importance of giving reasons, courts’ authority, the different roles of domestic and European courts, the duty of referring questions to the CJEU and exemption, consequences of non-referral in EU law, the Strasbourg Court’s role in dialogue between national courts and the CJEU, etc. Examined next are such matters as influences on preliminary references in European Union law, summary reasoning and limits to the reasoning duty (especially with regard to the Ullens de Schooten case of the ECtHR), associated division of competencies between the Strasbourg and Luxembourg courts, and finally the reasoning of the ECtHR itself as good or bad example. The author then considers the Supreme Court of Estonia’s leave-to-appeal system and the national courts’ practice in relation to Baydar, concluding that, while reasoned judgments are important and a right, no right exists for the applicant’s case to be referred by a domestic judge to the Luxembourg Court, though it is vital that summary judgment not be arbitrary / manifestly unreasonable; that Estonian courts have made reasonable use of the preliminary reference procedure before the Luxembourg Court thus far; and that they should articulate well the reasoning for referral/non-referral for litigants. The author proposes that the Estonian Supreme Court explain, exceptionally in one refusal of leave to appeal (cf. the Netherlands), that the general requirements for granting leave to appeal cover also the situation of preliminary questions to the CJEU and C.I.L.F.I.T. arguments of the CJEU. Above all, neither the interplay between EU law and the European Convention on Human Rights nor the role of national courts finding their way in complex legal surroundings should be neglected. 

12. Concepts and Contexts

Land Law ◽  
2017 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Court Ruling ◽  
Land Law ◽  
Supreme Court Ruling ◽  
Legislative Reform ◽  
Private Rights ◽  
The Supreme Court ◽  
The Impact

This chapter explores some of the wider issues raised by the rules applying to private rights to use land, along with the nature of the challenges faced by judges and Parliament when deciding how best to develop those rules. It begins by discussing the importance of concepts and contexts in land law, as well as the tension between concepts and contexts and the effect of different judicial approaches to land law. It then considers the relative merits of judicial and legislative reform of land law and goes on to examine the impact of statutory reform, particularly of registration statutes, in land law. It also assesses the impact of human rights and regulation on land law, citing the Supreme Court ruling in Scott v Southern Pacific Mortgages Ltd (2015), before concluding with an analysis of the role of non-doctrinal approaches in evaluating land law.

DUAL ATTRIBUTION OF ACTS COMMITTED BY A UN PEACEKEEPING FORCE: AN EMERGING NORM OF CUSTOMARY INTERNATIONAL LAW? THE DUTCH SUPREME COURT’S JUDGMENTS IN NUHANOVIÇ AND MUSTAFIĆ

2014 ◽  
Vol 23 (1) ◽  
pp. 287-297 ◽  
Author(s):  
Christine Bakker
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
International Law ◽  
Access To Justice ◽  
Customary International Law ◽  
Judicial Practice ◽  
Un Peacekeeping ◽  
European Court ◽  
The Supreme Court

In two cases lodged by victims (or their relatives) of the massacre in Srebrenica in 1995, the Supreme Court of the Netherlands has taken a progressive stance on the interpretation of international law on the responsibility of States and international organizations for wrongful acts. The Supreme Court upheld the earlier decisions of The Hague Court of Appeal, confirming that the Netherlands can be held responsible for the death and injuries of these victims, despite the fact that the Dutch troops employed to protect this enclave were part of a United Nations (UN) peacekeeping force. By accepting the possibility of dual attribution of an internationally wrongful act to both the UN and the troop-sending State, it has departed from the restrictive approach adopted in current judicial practice, in particular by the European Court of Human Rights. In this note, the Supreme Court’s judgments are discussed, focusing on (i) the question of dual attribution of an international wrongful act, and (ii) the extraterritorial application of human rights treaties. It concludes that, although the Supreme Court’s reliance on two sets of Draft Articles of the International Law Commission without referring to any State practice is surprising, these judgments should be welcomed as significant precedents, which may contribute to the development of a norm of customary international law. They also constitute an important step towards ensuring access to justice and reparation for the victims of gross human rights violations, such as those committed in Srebrenica.

scholarly journals Sources of Formation of Legal Positions of Russian Highest Judicial Bodies

2021 ◽  
pp. 130-142
Author(s):  
Mariia Viktorovna Globa
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Legal Doctrine ◽  
Judicial Practice ◽  
Legal Method ◽  
The Supreme Court ◽  
The Russian Federation

The present study is devoted to determining the place and role of legal positions of higher judicial bodies of Russia (judicial legal positions) in the mechanism of legal regulation. Let us specify in advance that the author means the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation (taking into account the 2014 amendments made to the legislation concerning the liquidation of the Supreme Arbitration Court of the Russian Federation) as the higher judicial bodies of Russia. Establishing the meaning and role of judicial legal positions in the mechanism of legal regulation is carried out by the author of this study through the analysis and demonstration of the main sources of formation of legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation. In this regard, the author of this work identifies as sources of formation of judicial legal positions: legal and non-legal. Non-legal sources of formation of legal positions of the highest courts of Russia differ from the legal ones in the fact that initially they do not have material expression, exist in the abstract, however, have no less importance for the process of formation of judicial legal positions. To the legal sources of creating legal positions of the highest judicial bodies of Russia the author includes: formal sources of law, current legal practice, legal doctrine. As non-legal sources of formation of legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation are: the inner conviction of a judge and professional legal consciousness of a judge. The author of this scientific research consistently reveals the importance and role of each source of formation of judicial legal positions. The conducted study of the most significant sources of formation of judicial legal positions allowed to better understand the place of legal positions of higher courts of Russia in the legal system and their role in legal regulation, which is reduced not just to the interpretation of judicial acts, but also to the formation of new legal provisions, which ultimately form a uniform judicial practice. Methodological basis of the study consisted of: analysis, synthesis, comparative-legal method, deduction, induction and other ways of knowledge used in science. Scientific conclusions and proposals contained in this work may serve as a basis for further theoretical study of the problems of judicial legal positions and used in the activities of legislative and law enforcement bodies.

12. Concepts and Contexts

Land Law ◽  
2020 ◽  
pp. 406-424
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Court Ruling ◽  
Land Law ◽  
Supreme Court Ruling ◽  
Legislative Reform ◽  
Private Rights ◽  
The Supreme Court ◽  
The Impact

This chapter explores some of the wider issues raised by the rules applying to private rights to use land, along with the nature of the challenges faced by judges and Parliament when deciding how best to develop those rules. It begins by discussing the importance of concepts and contexts in land law, as well as the tension between concepts and contexts and the effect of different judicial approaches to land law. It then considers the relative merits of judicial and legislative reform of land law and goes on to examine the impact of statutory reform, particularly of registration statutes, in land law. It also assesses the impact of human rights and regulation on land law, citing the Supreme Court ruling in Scott v Southern Pacific Mortgages Ltd (2015), before concluding with an analysis of the role of non-doctrinal approaches in evaluating land law.

The Role of the Judge in Advancing Human Rights - Knight Errant or Slot Machine Automation?

1988 ◽  
Vol 57 (1) ◽  
pp. 29-46
Author(s):  
Justice Michael Kirby
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Long Time ◽  
Protection Of Human Rights

AbstractIn this paper, the author deals with the "role" of judges in "advancing" human rights. He cautions that the needs of different countries will vary. He starts with a reference to the recent failure of Judge Robert Bork to secure confirmation to the Supreme Court of the United States. Bork had been a long time proponent of judicial restraint in the interpretation of the Bill of Rights, urging that protection of human rights should normally be left to the democratically accountable branches of government - the executive and the legislature. After reviewing the theoretical and practical arguments for and against judicial restraint, the author states his own conclusions. These are that, especially where there is a constitutional charter of rights and particularly in common law countries, judges have an inescapable function in developing the law. Their decisions necessarily advance their view of human rights. In human rights cases, they may nowadays receive assistance from international statements of human rights and the jurisprudence developing around such statements. The author appeals for an international approach but acknowledges that this will be difficult for lawyers, traditionally jurisdiction bound. But he warns that there are limits to the activism of the judiciary in controversial human rights cases. Judges themselves do well to recognise these limits both for their legitimacy and their effectiveness. An important modern challenge to the judiciary is that of resolving this dilemma between the pressures for restraint and the urgency of action.

Estonia Supreme Court on Reopening of Judicial Proceedings Following a Judgement of the European Court of Human Rights. Decisions of 6 January 2004, case No. 3-1-13-03 and 10 January 2004, case No. 3-3-2-1-04

2005 ◽  
Vol 1 (2) ◽  
pp. 318-326
Author(s):  
Taavi Annus
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Large Scale ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
Judicial Proceedings ◽  
The Subject ◽  
European Standards

In the fourteen years since Estonia regained its independence in 1991, the Europeanisation of its legal, political and economic system has been rapid. Estonia became a member of the Council of Europe in May 1993 and has, thereafter, ratified most of its important international human rights conventions. Before becoming a member of the European Union in May 2004, a large-scale harmonisation of its laws with the EU standards has taken place. Two recent decisions by the Estonian Supreme Court, the subject of the present annotation, on the application of the European Convention of Human Rights (ECHR) and the execution of the decisions of the European Court of Human Rights illustrate the way in which European standards have become a part of the Estonian legal system.

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