scholarly journals Administrative action, the rule of law and unconstitutional vagueness

2017 ◽  
Author(s):  
Oran Doyle
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Judicial Power ◽  
The Rule Of Law ◽  
Legislative Power ◽  
Administrative Action ◽  
Administrative Power ◽  
Textual Basis

Oran Doyle’s chapter argues that more needs to be done to instantiate the rule of law ideal: administrative action potentially undermines the rule of law, since individuals may have no opportunity to tailor their activities to legally binding directives before they are issued. The chapter notes that there are tentative indications in the case law that the courts may recognise a new constitutional doctrine constraining legislative grants of administrative power. Doyle critically assesses the emergence of this doctrine and seek to influence its development, disentangling it from a confusing association with the rule against the delegation of legislative power. Notwithstanding the absence of any clear textual basis, the chapter argues that recognition of this doctrine would be a legitimate exercise of judicial power.

scholarly journals Courting Asylum: How Asylum Claimants in Greece are Using Judicial Power to Combat neo-Refoulement and the EU-Turkey Safe Third Country Agreement

2019 ◽  
Vol 9 (2) ◽  
Author(s):  
Ender McDuff
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Case Law ◽  
Judicial Power ◽  
Appellate Court ◽  
Court System ◽  
The European Union ◽  
The Rule Of Law ◽  
Global North ◽  
The Eu

The international refugee regime is marked by a widening gap between the constitutional democratic values of countries in the global north and the practices employed by their state executives. While states have committed to the rights of refugees by joining the 1951 Refugee Convention, they have simultaneously subverted the rule of law in the name of security by instituting practices that externalize asylum: neo-refoulement. The purpose of this article is to examine the extent to which judicial power can be used to combat executive practices of neo-refoulement. This article considers asylum claims heard in the Greek appellate court system pertaining to the safe third country agreement between the European Union and Turkey. The article concludes that, under a system of coequal institutions, judicial power and case law harbour the potential for necessitating the consideration of all individual asylum cases effectively disarming practices of neo-refoulement.

The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality

2021 ◽  
pp. 0067205X2199313
Author(s):  
Michael Legg
Keyword(s):  
Rule Of Law ◽  
Procedural Fairness ◽  
Judicial Power ◽  
Communications Technology ◽  
Design Decisions ◽  
Adoption Of Technology ◽  
The Rule Of Law ◽  
The Core

The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic, courts need to function in a manner consistent with their institutional role and their essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts—open justice, procedural fairness and impartiality—and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for an assessment of how the courts operated during the pandemic and also provides guidance for making design decisions about a technology-enabled future court.

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 The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

The oath of a judge – oath of office and judicial symbol

2021 ◽  
pp. 85-92
Author(s):  
O. Kravchuk ◽  
I. Ostashchuk
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Power ◽  
The Rule Of Law ◽  
Symbolic Action ◽  
The Supreme Court ◽  
Conscious Choice ◽  
Justice Process ◽  
The Moment ◽  
First Time

The oath of a judge as an oath of office and as an element of judicial symbolism is considered in the article. The oath of a judge belongs to the categories of oaths of office, taken by an official upon taking office. At the same time, it belongs to the judicial oaths used in the justice process and is an element of judicial symbols. The oath of a judge as an oath of office symbolizes the endowment of a judge as an official by the state (judicial) power, the moment of his acquisition of powers (it is the inauguration ceremony), and the duty of a judge as an official to perform his duties properly. The oath of a judge as a judicial symbol represents a public and solemn obligation of the judge to exercise a fair trial in all its manifestations, including: independence and impartiality of the court, adversarial proceedings, equality of arms, and the rule of law. The judge takes the oath in a solemn atmosphere in the presence of senior officials (in Ukraine – in the presence of the President of Ukraine). It is an important ritual – a symbol of giving a person judicial power. The oath itself is a symbolic action of conscious choice of responsible and impartial observance of the law in the professional functions of realization of the rule of law for the good of all people. The coronavirus pandemic has shown that gathering a large number of people in one room can be problematic, so the oath ceremony was held even outdoors. It is stated that holding a ceremony in one of the judicial bodies, for example, in the premises of the Supreme Court or (subject to quarantine restrictions) in the territory of the Supreme Court may symbolize the independence of the judiciary and each judge from other branches of power. The peculiarity of the oath of a judge in Ukraine is its one-time nature. It should be taken only by a person first appointed to the position of a judge. In case of an appointment or transfer to another court, the judge shall not take the oath again. In this aspect, the oath of a judge is similar to the oath of a civil servant, which is taken only by persons recruited for the first time.

INTER ARMA SILENT LEGES (NOTAS SOBRE DEL DERECHO DE EXCEPCIÓN)

2010 ◽  
pp. 285-294
Author(s):  
JOSÉ MANUEL CASTELLS ARTECHE
Keyword(s):  
Rule Of Law ◽  
United States Supreme Court ◽  
Case Law ◽  
Point Of View ◽  
Court Case ◽  
The Rule Of Law ◽  
Current Economic Crisis ◽  
Supreme Court Case ◽  
Emergency Measures ◽  
Structural Point

Se hace notar que en situaciones de excepción, sea en un aspecto coyuntural (la actual crisis económica), sea estructural (las medidas de emergencia justificadas en razones de necesidad), se afecta normalmente aunque no necesariamente a los principios propios de un Estado de Derecho. Se aportan ejemplos de la realidad actual o de momentos claves de la jurisprudencia del Tribunal Supremo de los Estados Unidos de Norteamérica. Salbuespeneko egoeretan, dela egoera koiunturala (egungo krisi ekonomikoa), dela egiturazkoa (premiagatik justifikatuta dauden larrialdiko neurriak), gehienetan, baina ez beti, Zuzenbide Estatutuaren printzipio funtsezkoetara jotzen da. Ameriketako Estatu Batuetako Epaitegi Gorenaren jurisprudentziaren gaur egungo errealitatearen edo une gailurren adibideak aztertzen dira. It is pointed out that in exceptional circumstances, either from a temporary point of view (current economic crisis) or from a structural point of view (emergency measures justified by reasons of necessity), is normally affected albeit not necessarily the same principles of the Rule of Law. Some current real examples or key moments in United States¿ Supreme Court case law are provided.

VLADAVINA PRAVA NA „USLUZI“ NARODU, KROZ TEORIJU I PRAKSU

2021 ◽  
Author(s):  
Ana Opačić ◽  
◽  
Vladimir Vrhovšek ◽  
◽  
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Theory And Practice ◽  
Legal Norm ◽  
The Rule Of Law ◽  
Know How ◽  
The People ◽  
Key Factor ◽  
Law And Justice ◽  
Legal Security

We, as the authors of this text, have found it important to point out the close connection between law and justice, theory and practice, because citizens go to court for justice. The judge says what justice is. However, when the legal norm is available and well known to the persons, to whom it refers, and when it is predictable and the case law is uniform, the persons to whom the legal norm refers, can know their rights and obligations concretely, and thus know how to treat them. In order to that they must behave and anticipate the consequences of their behavior. When all the above has been fulfilled, it can be said that the requirements of the rule of law and legal security have been met, so it can be freely said that law and justice are at the "service of the people", through theory and practice. It should be reminded that the precision of the legal norm is one of the basic elements of the rule of law and is a key factor for the emergence and maintenance of the legitimacy of the legal order, which applies to all branches of law, and that court decisions are binding on all.

scholarly journals How Far Is It from Warsaw to Luxembourg and Karlsruhe: The Impact of the PSPP Judgment on Poland

2020 ◽  
Vol 21 (5) ◽  
pp. 1104-1115
Author(s):  
Stanisław Biernat
Keyword(s):  
European Integration ◽  
Rule Of Law ◽  
Case Law ◽  
Eu Law ◽  
Member States ◽  
The Rule Of Law ◽  
Eu Member States ◽  
Constitutional Tribunal ◽  
Legal Position ◽  
The Impact

AbstractA concern was voiced in commentaries after the PSPP judgment that the BVerfG’s position regarding the refusal to apply in Germany the CJEU judgment as issued on an ultra vires basis might be used in EU Member States infringing the rule of law, and the independence of the judiciary in particular. This issue is presented in relation to Poland. The article sets out the constitutional provisions which proclaim openness to European integration, as well as the union-friendly case-law of the Constitutional Tribunal (CT) until 2016. The CT jurisprudence at that time provided, however, for the possibility of refusing to apply EU law in exceptional situations, even though this never happened. Next, the article discusses endeavors of the new Polish authorities since the end of 2015 which drastically breach the rule of law in the field of the judiciary, as well as the measures taken by EU institutions to counteract these adverse phenomena. The Polish authorities argue that the competence to define the legal position of the judiciary has not been conferred on the Union and remains within the exclusive competence of the Member States. Such a stance was also taken by the politically dependent CT in April 2020. The PSPP judgment was therefore welcomed with joy by Polish politicians. There are major differences, however, between the rulings of the BVerfG and those of the Polish CT in its current composition, and the hopes pinned on the PSPP judgment by the Polish authorities are unfounded.

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