THE RULE OF LAW IN PRACTICE OF THE STRASBOURG COURT WITHIN THE CONTEXT OF PROBLEMS OF THE COURT APPELLATION AGAINST DECISIONS, ACTIONS, OR INACTIONS OF BODIES OF AUTHORITY POWERS |
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Author |
 Luchenko D. V., associate professor, Kharkiv, Pushinska, 77 |
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In heading |
Law; | ||||
Signed print |
24.10.2014 | Issues number |
2014 - № 4 (19) | Page |
191-204 |
Type of articles |
Scientific article | Code UDK |
342.92 | ISSN print |
2218-8010 |
Abstract |
Problem setting. The right to appeal is one of the main rights of individuals and legal entities in relationships with bodies of authority powers. The Strasbourg Court pays great attention to the rule of law as one of the main European legal values. This stipulates a need to examine understanding of the rule of law by the Court within the context of norm-creating and law-implementing problems of the appellation against decisions, actions, or inactions of bodies of authority powers. Recent research and publications analysis. The problem of the rule of law is considered in working papers of V. Averianov, Yu. Bytiak, N. Varlamova, V. Harashchuk, M. Koziubra, V. Lemaka, S. Maksymov, Yu. Pedko, O. Petryshyn, S. Pohrebniak, P. Rabinovych, S. Smorodynskyi, V. Tymoshchuk, O. Uvarova etc. It is worth mentioning works of A. Pukhtetska and S. Shevchuk, which examine the matter of the rule of law in terms of practice of the European Court of Human Rights. Paper objective. The article is aimed at the research of understanding of the rule of law by the Strasbourg court within the context of problems of the court appellation against decisions, actions, or inactions of bodies of authority powers. Paper main body. The author analyzes understanding of the rule of law in practice of the European Court of Human Rights within the context of problems of the appellation against decisions, actions, or inactions of bodies of authority powers. The article shows the perception of the legitimateness principle by the Strasbourg Court in terms of meaningful and formal, material and procedural components of the Court. The legitimateness requests a legal sense of a law. And whether the legal sense of a law is absent, following a law does not differ from following the arbitrariness. Components of the rule of law are proportionality, limitation of discretion of public power bodies, and conscientiousness. The violation of them by a body of authority powers should be considered as a reason of appellation. The author emphasizes a relationship between the rule of law and the control over an authoritative and administrative managerial activity. Conclusions of the research. In practice of the European Court of Human Rights the humanity most completely observes the relationship between the rule of law and the mechanism of appellation provided by administrative law. On the one hand, the right to appeal against decisions, actions, or inactions of bodies of authority powers results from the rule of law. On the other hand, the appellation is a mechanism aimed at guarantying of other elements of the rule of law (the law for a fairy court, the guarantee of execution of court judgments etc.). The mechanism of appellation should adhere to a set of requirements determined by the rule of law at level of legislative regulation as well as at level of lawimplementing practice, among which are efficiency of legal protection on the grounds of appealed claim, fairness, publicity, rapidity of consideration etc. |
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Keywords |
The rule of law, appellation, the Strasbourg court, legitimateness, proportionality, limitation of discretion. | ||||
Reviewer |
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External reviewer |
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Article in PDF |
4 191-204 | ||||
Bibliography |
none | ||||
Code DOI |
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16.09.2014