The Rule of Law in the ECHR Framework: Theoretically-Legal Overview

Abstract

THE RULE OF LA : IN THE ECHR FRAMEWORK

THEORETICALLY-LEGAL OVERVIEW

ВЕРХОВЕНСТВО ПР АВА У ДІЯЛЬНОСТІ ЄСПЛ

ТЕОРЕТИКО-ПР АВОВИЙ ОГ ЛЯД

Reminska vuhvuhf mha studentf Theory of Law and State aepartmentf Taras Schevchenko National University of Kyiv The article deals with the functional features of the rule of law concept in European Court of Human Rights practiceh The aim of this study is to provide a conceptual theoretical framework based on the assumptionf that as the authority of the supragnational levelf Court in its work had successfully used a sogcalled “evolutive” approach to the interpretationh Special attention is given to the classification of the approachesf according to which the rule of law is seen as the universal principle of the international judicial lawgmaking processh The author concludes that the rule of law is a concept of the

flexible and dynamic character there are reasonable grounds to distinguish two modes forms of the rule of law mang ifestation in the Court’s case law the rule of law also carries out the systematically important for the ECHR functionsh oespectivelyf there is an urgent need to review provisionsf existing in the Ukrainian legislationh Key words rule of lawf European Court of Human oightsf law principlesf evolutive interpretationf case lawf antigdefinitive approachf structurally systematic approachf clusters of the rule of law elementsf rule of law functionsh У статті розглядаються функціональні особливості концепції верховенства права у практиці Європейського суду з прав людини. Метою поточного дослідження є розробка концептуальної теоретичної бази, заснованої на твер-

дженні, що Суд, як орган наднаціонального рівня, у своїй діяльності активно використовує так званий «еволютивний» підхід до тлумачення правовідносин. Акцентується на класифікації способів, відповідно до яких верховенство права розглядається у якості універсального принципу міжнародної судової правотворчості. Автор доходить до висновку , що досліджуваний феномен є концепцією адаптивною та багатофункціональною наявні достатні підстави для виокремлення двох основних форм матеріалізації верховенства права у практиці Суду верховенство права також виконує систематично важливі для ЄСПЛ функції. Відповідно, існує нагальна потреба у перегляді діючих положень національного законодавства.

Ключові слова

верховенство права, Європейський суд з прав людини, принципи права, еволютивне тлумачення, прецедентна практика, анти-дефінітивний підхід, структурно-системний підхід, групи елементів верховенства права, функції верховенства права.

В статье рассматриваются функциональные особенности концепции верховенства права в практике Европейского суда по правам человека. Целью текущего исследования является разработка концептуальной теоретической базы, основанной на утверждении, что Суд, как орган наднационального уровня, в своей деятельности успешно использует так называемый «эволютивный» подход к толкованию правоотношений. Особое внимание уделяется классификации способов, в соответствии с которыми верховенство права рассматривается в качестве универсального принципа международного судебного правотворчества. Авто р п р и х о д и т к в ы в о д у , ч т о и с с л е д у е м ы й феномен является концепцией адаптивной и многофункциональной

имеются достаточные основания для того, чтобы вести речь о двух основных формах материализации верховенства права в практике Суда верховенство права также выполняет систематически важные для ЕСПЧ функции. Соответственно, существует настоятельная необходимость в пересмотре действующих положений национального законодательства.

Ключевые слова верховенство права, Европейский суд по правам человека, принципы права, эволютивное толкование, прецедентная практика, анти-дефинитивный подход, структурно-системный подход, группы элементов верховенства права, функции верховенства права.

Науковий вісник Ужгородського національного університету, 2017 Problem statementh European Court of Human Rights hereinafter – ECHR or Court acts as an effecg tive way to protect and respect universal legal orderh ECHR is perceived not only as an international courtf which is able to restore the violated rights and freedomsf but also as a powerful institution that promotes doctrig nally significant legal ideash One of such an idea is the rule of lawh qhusf the relevance of the topic can be acag demically explained by the followingh The declared mulg tifaceted rule of law nature reflects the need to develop a special methodology to its thorough examinationf speg cifically from the judicial lawgmaking perspectiveh

The main purpose of the article is to carry out a comg prehensive analysis of the international rule of law cong cept on the basis of the ECHR case lawh This will allow to complete more detailed study of rule of law normag tive constructionf specifics of its model implementation into the Ukrainian legal practiceh Aforementioned can be achieved through addressing the following scientific and practical tasks to show how the theoreticallyglegal justification for the rule of law idea in the international legal aspect works to undertake an ingdepth methodg ological analysis of the modern rule of law concept in the ECHR law practice to define the main rule of law functions in the ECHR interpretingf in order to create an

appropriate mechanism for the application of the releg vant international law standardsh Reviewing existing literature on the subjecth At the present timef the rule of law is an indispensable value for an effective operation of the national and international legal orderh eoweverf only certain Ukrainian legal theog rists have carried out some issuesf concerning the ECHR’s understanding of the rule of law idea SK 3 . eolovatyf OK MK iutzivf AK AK mukhtetskaf 3 . MK oabinovychh It is most regrettable that researches of the abovementioned scholars were conducted only fragmentarilyh There is a little different situation in the foreign legal literatureh For instancef among such scientific worksf it is necessary to

highlight GK Lautenbach’s paper “The Concept of the Rule of Law and the European Court of Human Rights”, where the author explained how the Court defines and interprets the notion of the rule of law in its practice [13].

At the same timef it is worth notingf in the rkraing ian legal theory this question should be examined more closely with the application of both complex and herg meneutic methods of scientific knowledgeh Having anag lyzed divergent viewsf existing in the modern legal litg eraturef the author underlined some unsolved aspects of the general rule of law problem the uncertainty of the rule of law position in the international judicial lawgmaking the lack of studiesf related to the impact of the ECHR “evolutive” interpretation on the developg ment of the rule of law dynamic aspect the scientific invalidity of the waysf with the aid of which the rule of law concept can be materialized in the ECHR decisionsh

By the same tokenf the novelty of the current research lies in the factf the author used qualitatively new structurallygsystemic approach to the understandg ing of the rule of law essenceh In view of thisf the actual scientific value of the work is crucial enoughh For suref the new methodological framework in the study of the rule of law will be recommendedh The further suggested gives the opportunity to outline special scientific criteg riaf according to which the rule of law is a complex pring ciplef comprised of a special guidelines seriesh Main material presentationh It is notoriousf the rule of law doctrine is complicated enoughh Dozens of approaches to its notion definitely have enriched a

timeghonored concepth At the same timef international case law serves as a peculiar indicator of the rule of law dynamismf enhancing its efficacy on the global levelh Consequentlyf it is imperative to analyze and systemg atize ECHR judicial decisions not allf but some of them . This would help to avoid the overall impression about the researched phenomenon as the abstract and nongfunctional theoreticallygphilosophical idealh Today ECHR is a central factor in the successful European society functioningf considering it serves as a sui generis “nervous system” of the human rights protectionh qhereforef in order to save the viability of the Convention for the Protection of Human Rights and Fundamental Freedoms

better known as Convention on Human Rights or simply Convention , unchanged for the half a centuryf it is of utmost importance for Court to have a special approach to the interpretation of particug lar conventional rulesh That became known as the “evog lutive” approachf directly revealed in ECHR’s decisions for many timesh fndeedf emphasis has been mainly on factf that “Convention is not a static legal actf it is open for interpretation in the light of a new day”. joreoverf “as a legal actf protecting human rights and freedomsf subject and the aim of the Convention requires its provig sions to be interpreted and applied in a way that makes its guarantees real and effective” [18]. Accordinglyf we

have the reason to believef evolutive approach in such understanding has provided universally recognized fung damental truth “Convention’s provisions exist in the formf they interpreted by the Court”. Aforementioned leads to the conclusionf the rule of law in the ECHR’s perception is not a staticf but dynamic concepth This means researched concept is loaded with a new content through this type of interpretationh As was mentionedf the ECHR’s rule of law issue is also discussed in the professional academic literg atureh For instancef analyzing ECHR’s rule of lawf some Ukrainian scholarsf particularly 3 . oabinovychf suggested a sogcalled “elementgbygelement” analysisi approachh The underlying idea is in separation of susg

tained expression – “the Rule of Law” into two main “subgelements” – “Rule” and “Law”. Scholar deeply convincedf only these two legal categories detached from each otherf will create a basis for the clear underg standing of the rule of law as a whole concepth In this casef researcher “empowers” each of the aboveglisted subgelements with their own options attributes or charg acteristics >17, ph 4–10@. It appearsf such an uneven understanding introduces greater uncertainty concerning the use of the conceptual apparatus not only for the legal theoristsf but also for the lawgappliersh As a resultf recg ommended approach seems incomprehensible for sevg eral reasonsh By singling out notions “rule” and “law”,

immanent character of the researched concept is autog

matically deniedh Besidesf what are theoretical and pracg tical results for applying such an DSSURDFK? Any logical division has its own specific goalsh qhusf selection of an appropriate basis for division stems from such a goalh That meansf the next question is whether one can semantically split the rule of law notionf if it is a cong ceptf possessing itself as an independent legal traditionh curthermoref there are QR any grounds for the philology as a science to interpret the “rule of law” separatelyh mracticallyf linguistic theory is not familiar with such type of translation as dichotomy concept division with a view to description of its certain meaningful partsh Position that there must be QR application of “eleg

mentgbygelement” analysis in such a manner is further supported in the foreign legal literatureh ppecificallyf we can find an opinionf the key idea of which is analytic formula as follows “Rule” + “Law”  “Rule of law”. The most important aspect is not to consider the “Rule of Law” as the concept of mechanically united words “rule” and “law” , but in possibility to create a holistic set of specific featuresf with the aid of which we percept “the Rule of Law” as a cohesive and universal legal pheg nomenon >12, ph 7 -82@–. This view should be certainly supported and expandedf because artificial dichotomy division is at variances with the basic rules of formal logich We are deeply convincedf detachment of the Rule

of Law into two isolated words “RULE” and “LAW” and their separate study intentionally makes it harder to understand essential role of the current ideah At the same timef we shall notice that instrumental value of the proposed above “elementgbygelement” analg ysisiapproach is beyond any disputeh pimplyf this should be done in a slightly different directionh For examplef Stanford Encyclopedia of Philosophy suggests the Rule of Law “comprises a number of principles of a formal and procedural characterf addressing the way in which a community is governed” [15]. In this contextf as the rule of law is cohesive and coherent legal constructionf reference should be made to its multifaceted characterf

unifying fundamental principles of global legal orderh So as the resultf this analysis should be applied not to the semantic side of the rule of lawf but to its internal structureh puchglike point of view is supported by an outstanding Ukrainian scientist AK mukhtetskah With the aim of determining particular rule of law elementsf she extracted from the ECHR decisions its five dimensionsh Among them are simple references to the contentf legal significance of the rule of law concept oriand principle in a general meaning linking to the rule of law requirementsf which are under active considerg ation fair trial and access to court addressing to the importance of the discretionary powers limitation

effective control over the implementation of human rights and freedoms >16, ph 36@. This also can be found in the international scientific studiesh Back in OMMTI EK gurgensf rapporteur of the Commission on Legal Affairs and Human Rights Parliamentary Assembly of Council of Europe , in his report “The rule of law pring ciple” pointed out “The rule of law conceptf with the idea of pluralistic democracy and human rights doctrinef represents a fundamental principle and common burog pean valuesf particularly stipulated in the Statute of the Council of Europe and the European Court of Human Rights case law”. According to the lawyerf there are folg lowing ECHR’s rule of law components principle of legal certainty and predictability of law

principle of equality before the law control of the executivef in casesf where public freedom is threatened access to justice right to a fair trial protection and control of the judiciary consolidation of European public order in the human rights area [14].

It is assumedf suggested list of the rule of law comg ponents is not comprehensive and with the years should be refilledh joreoverf the authorf further developing the abovementioned ideaf strongly believesf the list of the rule of law requirements constantly changesf taking into consideration national legal traditions and law enforceg ment practiceh After considering the different viewsf expressed in the legal literature as well as a certain ECHR’s case lawf the author is of the opinionf there are two waysf according to which the rule of law is established in the Court’s decig sionh From this perspectivef in accordance with the first approachf the Court does not offer an explicit rule of law

definitionh Althoughf there is QR a comprehensive definig tion in the textf the investigated principle is stipulatedf for examplef through the proclaiming its importance in the European Community transformationh For instancef in a decision taken by the Court against rkrainef was outlined the following “Under the Court’s settled caseg lawf the right to a fair hearing before a tribunalf as guarg anteed by Article 6 † 1 of the Conventionf must be interg preted in the light of the Preamble to the Conventionf which declaresf among other thingsf the rule of law to be part of the common heritage of the Contracting ptatesh One of the fundamental aspects of the rule of law is the principle of legal certaintyf which requiresf inter aliaf

that where the courts have finally determined an issuef their ruling should not be called into a question” >1 @. qhuswisef listedgabove way is designed to show the rule of law is a “vivid” instrument for the conflict regulation of public affairs on both national and international levg els . In additionf it contains strong messages on the rule of law as the principle that pervades the entire text of the Conventionh There are instancesf where the rule of law principle is used to serve as a sovereign remedyf aimed at countering arbitrary exercise of the state authorityh Along with thisf Court in its judgments quite often uses such expressionsf as a “state subject to the rule of law”, a “state governed by the rule of law” or a “state based on

the rule of law” >5 6@. In this connectionf it is pertinent to interpret abovementioned expressions in the unity of three following specifications – legislative bodies must not only respect the lawsf but also ensure legal and practical modalities for their implementation – judiciary must represent itself as a bodyf which guarantees the equality it must enjoy the public cong fidence and protect fundamental values of a lawgbased State – executive authorities must apply the instruments necessary for the enforcement of judgments public

Науковий вісник Ужгородського національного університету, 2017 authorities’ interests must correspond exactly with the need of an adequate dispensation of justiceh The nexus between abovementioned statements lies in the common for them demand – the existence of clear and comprehensive list of casesf where discretion can be appliedh qhereforef the law has to emphasize on the limg its of any discretionary power given to the public authorg itiesf taking into account the legitimate aim of such a remedyh As the resultf it is our convictionf ECHR’s “antigdeg finitive” approach to the rule of law is essentially intended to show the Court interprets it by relying on the specific life circumstancesf thereby ensuring the rule of

law efficacy as a kernel in the international human rights machineryh As has been mentioned abovef generallyf there are two ways of the rule of law affirmation in the ECHR’s case lawh The second one is a sogcalled structurallygsysg tematic approachf accordingly to which the rule of law structure is “splitting into” special “molecular partig cles”, otherwise known as the rule of law subgprinciplesh qhereforef the rule of law content is regarded as an integ grated modelf comprised of individual legal principlesf nongcompliance or even the violation of which causes destruction of the whole rule of law normative structureh Having said thisf the applying of the structural systemg atic approach enables the researcher to single out three

clusters of the rule of law elementsf which are shown in the Court decisionsh Each of these clusters has its own extensive system of requirementsistructural elements of the rule of lawh IK Institutional framework and organization of the government includes – separation of powers > @ – the independence of the judiciary in “Guja vh jolg dova” casef Court in the light of the violation of the article 10 of Convention agreed with the applicantf the practice of “telephone justice” is a serious drawback for the rule of law functioning in joldovah Having identig fiedf the judiciary lacked independence and was influg enced by the executive through the Supreme Council of jagistracyf Court had recognized the rule of law was

endangered because of “loyalty” of the judiciary to the Moldova’s governing party in 2002 [7]. IIK Principle of legalityf which in its content also binds such essential principles as the principle of legal certainty and the principle of equality before the lawh ppecified above guidelines in their unity provide a trag ditional basis for the rule of law concept – the principle of legality suggests the following two requirements of its effective actualizing the law must be sufficiently accessible and predictable the law must be clear and define the limits of any discretionf which is given to designated officials in order to apply legislation properly >1 4@ – the principle of legal certainty in its elemental comg

position may provide such requirements a the State’s obligation to respect the law and apply its provisions consistently and in accessible for the public way adherg ence to the principle of res judicata E the obligation concerning enforcement of court decisions [3].

IIIK Due process judicial reviewf access to the courts and remedies as well as a fair trial – interference by the executive into the rights and freedoms of individuals should be the subject of an effective control [8] – availability of such procedural requirements and guarantees as openness of trials and publicity of judicial examination [10] – access to the courts and effective legal protection free legal aid [2] – guaranteeing the right to a fair trialf which means participants make full use of their intrinsic rights [11].

Taking into consideration the above mentionedf it is possible to make the following conclusionsh NK On the basis of the professional literature and caseg law analysisf it must be underscored that common for legal science and practice a broad understanding of the rule of law essence must not to be rejectedh It assumesf the very idea of the rule of law is not “one size fits all” concepth It is applied to the real sociogpolitical relationsf at the same time transforming and adapting to the speg cific legal circumstancesh That is why the ECHR’s rule of law doctrine has an important legal and axiological value for the national judicial system reformationh OK It is reasonable to distinguish two modes

forms of the rule of law manifestation in the Court’s case law a mere reference of the researched concept in the text of the Court’s decision without disclosing the speg cific content of the latter primarilyf this way is aimed at the recognition of the rule of law as an inexhaustible source of human rights and freedoms in this contextf rule of law is one of the basic principles underpinning all Court’s actions reflecting ontological rule of law functionality from the perspective of its constituent eleg ments among such structural components are sogcalled subgprinciples which in this context are seen in cong junction and hence define functional use of the rule of law .

PK Formulated as a universal principlef the rule of law also carries the systematically important for the ECHR functionsf among which it is necessary to mark out a basic regulatory function – interfusing the whole system of Convention’s normf the rule of law lays the groundwork to the entire process of legal consciousness E stabilizing function – the rule of law particularlyf the principle of legal certainty is called upon to create stag ble environment that is conditions for the legal regug lation in general F integrativef according to which the rule of law principle simultaneously acts in two legal frameworks as a supreme human rights principle and as a guiding principle of national legal systems building

G prognostic functionf in accordance to which the rule of law regulates not only current public relationsf but also creates conditionsf necessary for encouraging new law enforcement models H guarding function – in its purpose the rule of law is intended to protect individuals from the arbitrariness in State actionsf together with ensuring an adequate law and order situation thusf the rule of law vested with ambivalent naturef which holdsf there is a need to create a behavior pattern in socig ety and prevent the possible appearance of conflict of

domestic and international characterh Among these funcg tions it seems appropriate to highlight additionalf but equally important directions for the rule of law actionh ppecificallyf the sense of communicative function is in that the rule of law is intended to promote an effective dialogue between the European community and national governments in order to create new or modify existing standards of human rights and freedomsh In this contextf it is crucial to underline another function – interpretiveh It represents the main purpose of the rule of law in the ECHR – to serve as an effective tool for legal interpreg tation of the Conventionf thereby creating the conditions for its brand new substantive contenth

Prospects for continued rule of law developing in Ukrainian legal science and practiceh mrimarilyf there are problemsf related to the effective implementation of the provisions of the Law of Ukraine “On the enforcement and application of European Court of Human Rights practice”. The bottom line of the abovementioned chalg lenge is to evaluate the real effectiveness of the national legislationh Conversely this evaluation should be carried out by monitoring judgments and decisionsf after they have been handed downh There is also an urgent need to study the rule of law functioning in other international judicial bodies in order to fill the juridical vacuum and redress the paucity of relevant national lawsh