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The Concepts of “Law” and ” Established by Law” as Seen by the European Court Case Law


Oleksandr Dementiev, lawyer at Ilyashev & Partners
Source: The Yurydychna Praktyka

Watching the ways of the government can lead one to assume that the legislative branch that makes laws and the executive branch that applies them are both guided by the principle of the “rule of acts”, not rule of law. Such conclusion can be made based on the fact alone that some regulations are passed to suit the specific event, or with the purpose of legalizing certain types of misconduct, which were formerly illegal, forgetting, however, that these acts are completely inconsistent with the “spirit of the law”. The difference between these, at first glance, similar definitions is in that fact alone that any action taken by authorities based on the principle of the “rule of acts” may be legitimate, but it still can contain signs of abuse of power. In other words, if any action is legitimate it does not automatically mean it is not arbitrary, while any acts applied with the understanding of the rule of law cannot by default lead to arbitrariness in a modern democratic society.

Meeting the standards

It is not surprising that for quite a while now the European community has been living in the legal field corresponds to the principle of the rule of law, not the rule of acts. In particular, this conclusion arises when analysing the judgments of the European Court of Human Rights (ECHR, the Court). In particular, in its judgment in the case of Hentrich v. France (22 September 1994, application no. 13616/88, paragraph 42), the European court found that the requirement of lawfulness, which is derived from the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), means a requirement to comply with the relevant provisions of national law and, in particular, with the principle of the rule of law. In the judgment in Kushoglu v. Bulgaria (10 May 2007, application no 48191/99, paragraph 50) the European court noted that, although the issue of interpretation of the national legislation should be decided first of all by domestic authorities, notably courts, the task of the European court remains to find out whether there is a contradiction between result of this interpretation and the provisions of the Convention. Accordingly, the European court admits that theoretically all decisions taken by domestic courts based on current legislation may in their absolute majority (i.e. all of them) be consistent with the principle of lawfulness, however, this does not necessarily mean that such decisions will be consistent with the principle of the rule of law and, therefore, with the spirit of the Convention, due to arbitrary use of the laws in force from time to time. So the mission of the European court in this context is to verify this consistency. In addition, in its judgment in the case of Sovtransavto Holding v. Ukraine (application no. 48553/99, paragraphs 79, 97 and 98) adopted in respect of Ukraine, the European court noted that, while recognising that it has only limited power to review compliance with domestic law and is not entitled to call into question the decisions reached by domestic courts and tribunals, the role of the Court is instead to verify whether the consequences of their interpretation and application of the domestic law are compatible with the principles laid down in the Convention, if it established that, in applying the law in a particular case, a domestic court had made an obvious error or applied it in such a way as to make an arbitrary decision. Getting closer the basic concept of the approach of the European court to the understanding of the concepts of “law” and “prescribed by law”, note that the European court in its case-law of the notes the following: the word “law” in the expression “prescribed by law” covers not only Statute but also unwritten law. As practice shows, the European court does not attach importance to the fact that the notion of “contempt of court” is a creature of the common law, i.e. law developed by judges through decisions of courts and similar tribunals, and not the statutes. The ruling that the restriction imposed due to the common law does not apply to restrictions, “established by law, only on the grounds that it is not fixed in the law, deprives participating in the Convention, the state common law protection and shakes the foundations of the legal system of that state. Such a decision was entered in clear contradiction with the intention of the drafters of the Convention.

Interpretation in practice

As is known, in practice, the petitioners do not argue that the expression “prescribed by law” every time requires a legislative act. In their view, submitted to the court, as a rule, States that the law required only if the rules of General law is so vague that they do not correspond, according to the petitioners, the essence of the concept of enclosed in this expression, namely the principle of legal certainty. In an authentic (French and English texts of the Convention, the expression “prescribed by law”, appearing several times in the text of the Convention, takes different values. So, it should be noted that the French text uses the formula “prvues par la loi”. However, when the same French expression appears in paragraph 2 of article 8 of the Convention, article 1 of the First Protocol and article 2 of Protocol 4 to the Convention, in the English text reads “in accordance with the law”, “provided by law” or “in accordance with law”. So, facing with multiple versions of the constitutive international treaty, each of which is equally authentic, but not exactly the same, the European court has established case law, according to which the court should interpret these versions thus, in order to bring them as close as possible to meet the achievement of goals and objectives of the contract (judgment in the case of Wemhoff v. Germany of 27 June 1968, paragraph 8, and paragraph 4 of Article 33 of the Vienna Convention of 23 may 1969 on the Law of Treaties). The European court is of the opinion that the following two requirements arise out of the words “established by law”. First, the law must be adequately available: citizens should have an opportunity, appropriate to the circumstances, to consider what legal rules are applicable to a given case. Secondly, a regulation or provisions cannot be regarded as “law”, if it is not formulated with sufficient degree of accuracy, allowing citizens to conform their conduct with it: citizens must be able, by using the appropriate advice if necessary, to foresee (in reasonable relation to the circumstances) the consequences which may lead to this action. These consequences are not necessarily foreseeable with absolute certainty: experience shows that it is unattainable. Once again, although certainty is desirable, it may cause excessive rigidity while the law must be able to keep pace with changing circumstances. Thus, many laws are inevitably put into terms which, to a greater or lesser extent, are vague and whose interpretation and application is a matter of practice.

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