scholarly journals The established obligation for the ordinary courts to interpret the law in the light of the interpretation provided to the Convention by the Constitutional Court of Romania

2016 ◽  
pp. 65-74
Author(s):  
MIHAELA MAZILU-BABEL

In the last years the Constitutional Court of Romania was asked to rule on the constitutionality of the erga omnes obligatory interpretations provided by the High Court of Cassation and Justice. Through such constitutionality review, the Constitutional Court manages to impose its own interpretation of the European Convention on Human Rights on all national ordinary courts whenever such courts are to ensure that the European Convention of Human Rights is observed and respected in a pending case. This paper sumarises a couple of such rulings, pointing out that through such constitutionality review rulings, the Constitutional Court of Romania has also established that it has the competence to impose, at the national level, the unique interpretation that can be given to a norm whenever that unique interpretation was already imposed by the High Court of Cassation and Justice.

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.


2016 ◽  
Vol 24 ◽  
pp. 14 ◽  
Author(s):  
Kerttu Mäger

The paper was written to analyse the enforceability of the judgements of the European Court of Human Rights in Russia, particularly in light of recent amendments to the Law on the Constitutional Court and relevant case law of the Constitutional Court of Russia. Article 46 of the European Convention on Human Rights, obliging member states to execute the judgements of the European Court of Human Rights, does not leave room for ‘cherry-picking’ in enforcing the judgements. However, the Constitutional Court has suggested that Russian authorities should indeed engage in cherry-picking and may refuse to enforce judgements that are not in accordance with the Russian Constitution as interpreted by the Constitutional Court. In December 2015, the Russian parliament amended the Law on the Constitutional Court so as to empower said court to declare judgements of the European Court of Human Rights unenforceable when implementation would be in conflict with the Constitution of Russia. The paper discusses the background of these developments and alternatives for overcoming the conflict between domestic legislation and the instruments of the Council of Europe.


2015 ◽  
Vol 1 (5) ◽  
pp. 0-0
Author(s):  
Валерий Зорькин ◽  
Valyeriy Zorkin

The article is devoted to the problems of implementation into the domestic law of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHRFF) and Convention-based decisions of the European Court of Human Rights (ECHR). The author notes that the complexity of the ECPHRFF provisions’ implementation process is caused by the lack of efficient legal remedies at the national level. Among the reasons for failure to execute or for the delay in execution of the ECPHRFF requirements and ECHR decisions, there are lack of coordination of actions between different government agencies and differences in approaches to ECPHRFF interpretation, political contradictions. The article justifies an important role of the Constitutional Court of the Russian Federation in improving the Russian legislation and lawenforcement by means of implementation of the ECPHRFF provisions and ECHR case law. The author underlines that the Constitutional Court of the Russian Federation activity is aimed at resolving two tasks: harmonization of the Russian legal system with the European legal framework and protection of own constitutional identity. The author considers the problem of “judicial activism” in the ECHR activity, that is aimed at extended interpretation of the ECPHRFF articles. The author pays special attention to the issue of application by the ECHR of the European consensus methodology which it used to determine the discretion of states in safeguarding conventional rights. At the same time the author points to the inconsistency of this concept in regard to the ECPHRFF basic principles. The author justifies the Constitutional Court of the Russian Federation position, in accordance with which ECPHRFF and the ECPHRFF-based decisions of ECHR do not override the priority of the Russian Constitution for national constitutional courts and the Russian legal system in those cases when the Russian Constitution is capable to ensure better protection of human and civil rights and freedoms. The author draws the conclusion that cooperation of the European and Russian legal orders is not possible in the context of subordination; it is necessary to establish a dialogue between the legal systems which is a guarantee of the all-European law development.


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».


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.


2019 ◽  
Vol 1 (2) ◽  
pp. 474
Author(s):  
Elisabet . ◽  
Cut Memi

One of the authorities of the Constitutional Court governed by the Constitution of the Republic of Indonesia in 1945 was the examining of laws against the contitution or judicial review. Inside the regulations which governing the implementation of this authority, the Constitutional Court only acts as a negative legislator, namely canceling or reinforcing a norm tested by the Petitioner. But in practice, the Constitutional Court has changed its role to become a positive legislator, who is forming a new legal norm, which is the authority of legislators. The Constitutional Court should not be able to form a new legal norm because there is no legal basis which regulate that. But Constitutional Court can form a new legal norm in some urgent circumstances, relating to Human Rights, and preventing legal vacuum. In addition, the establishment of laws by lawmakers that require a long process and time. This is compelling Constitutional Court to make substitute norm before the law was established by the legislators. In the Decision of the Constitutional Court Number 46/PUU-XVI/2016, the Court actually wants to establish a new legal norm, but because the articles in the petitioned have criminal sanctions, and if the Constitutional Court approves the petition, the Constitutional Court has formulated a new criminal act that can only be formed by the lawmaker. Whereas in the Decision of the Constitutional Court Number 21/PUU-XII/2014, the Constitutional Court established a new norm because in the article a quo there were no criminal sanctions.


2016 ◽  
Vol 3 (3) ◽  
pp. 254-345
Author(s):  
Klaus D. Beiter ◽  
Terence Karran ◽  
Kwadwo Appiagyei-Atua

Focusing on those countries that are members of the European Union, it may be noted that these countries are bound under international human rights agreements, such as the International Covenants on Civil and Political, and Economic, Social and Cultural Rights or the European Convention on Human Rights, to safeguard academic freedom under provisions providing for the right to freedom of expression, the right to education, and respect for ‘the freedom indispensable for scientific research.’ unesco’s Recommendation concerning the Status of Higher-Education Teaching Personnel, a ‘soft-law’ document of 1997, concretises international human rights requirements to be complied with to make the protection of the right to academic freedom effective. Relying on a set of human rights indicators, the present article assesses the extent to which the constitutions, laws on higher education, and other relevant legislation of eu states implement the Recommendation’s criteria. The situation of academic freedom in practice will not be assessed here. The results for the various countries have been quantified and countries ranked in accordance with ‘their performance.’ The assessment demonstrates that, overall, the state of the protection of the right to academic freedom in the law of European states is one of ‘ill-health.’ Institutional autonomy is being misconstrued as exhausting the concept of academic freedom, self-governance in higher education institutions sacrificed for ‘executive-style’ management, and employment security abrogated to cater for ‘changing employment needs’ in higher education.


2021 ◽  
pp. 126-150
Author(s):  
Michael J. Allen ◽  
Ian Edwards

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses the meaning of negligence, arguments for and against negligence as a basis for criminal liability, the meaning of strict liability, the origins of and justifications for strict liability, the presumption of mens rea in offences of strict liability, defences to strict liability, and strict liability and the European Convention on Human Rights. The feaeture ‘The law in context’ examines critically the use of strict liability as the basis for liability in the offence of paying for the sexual services of a person who has been subject to exploitation.


2019 ◽  
pp. 10-36
Author(s):  
Maureen Spencer ◽  
John Spencer

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.


2019 ◽  
pp. 1-9
Author(s):  
Maureen Spencer ◽  
John Spencer

This chapter introduces the principles and key concepts underlying the law of evidence, with an emphasis on criminal evidence. It reviews Article 6 of the European Convention on Human Rights (ECHR), now part of English law as a result of the Human Rights Act 1998. It concludes by highlighting the importance of analysis of the relevance of the facts in a trial.


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