Effective Judicial Protection Research Articles

Problems of achieving legal efficiency in the consideration of class actions

The paper examines the procedure for considering a class action in the Russian civil procedure in order to identify obstacles to the effective application of this institution. In developed foreign legal orders, group proceedings are a popular socially significant jurisdictional procedure for considering a large number of the same type of requirements, which allows optimizing the burden on the judicial system, ensuring the achievement of legal certainty and the effectiveness of judicial protection. As a result of the reform of group production, an institution sui generis appeared, which differs in many respects from foreign analogues. Given that group proceedings in Russia are still not in demand, the authors has identified obstacles to the intensification of this procedure, many of which indicate a superficial regulation of the procedural form.The study used comparative legal, formal logical and systemic structural methods, which made it possible to give a comprehensive assessment of the identified gaps in the legal regulation of group proceedings in Russian civil, commercial and administrative litigation. The first of the identified problems is related to the lack of regulatory rules for certification of a group of persons. To initiate proceedings on a class action, it is necessary to join a significant number of co-plaintiffs, whose claims are based on homogeneous legal and factual circumstances. However Russian procedural codes do not regulate the criteria by which certification of a group should be carried out, and also do not establish rules for accepting a court ruling on preparing a case for trial, allowing members to subsequently authorize. It is noted that for effective group proceedings it is necessary to issue an appropriate definition, which would define the criteria for the homogeneity of the grounds for claims and the method of protecting the violated right chosen by the applicant. The law should directly provide for the possibility of appealing against such a judicial act. Also, for the purposes of joining the requirements to protect the interests of a group of persons, it is proposed to publish a notice on the initiation of proceedings not only on the websites of the court and the defendant, but also in the official media.The problems of implementing the qualities of the legal force of a court decision on a class action, such as exclusivity and prejudice, are also identified, since the law allows challenging the circumstances established when considering a class action when considering a personal claim of a member of a class who has not joined a class action in the future.

Walking the line in times of crisis: EU fundamental rights, the foundational value of the rule of law and judicial response to the rule of law backsliding

The research focus of the paper is on the relation between general principles, fundamental rights and the rule of law in the EU. The role of the judiciary is evaluated through the prism of the jurisprudence of the Court of Justice of the EU (CJEU) with a particular focus on the formula, introduced in the Associação Sindical dos Juízes Portugueses judgment and subsequent decisions by the CJEU, related to the rule of law and independence of the judiciary. A thorough assessment of the relation between fundamental rights, foundational values of the EU such as the rule of law and effective judicial protection through the methodological evaluation of the effectiveness and functional interpretation is included. The core of the research reflects the functional approach of the CJEU with respect to judicial independence as the condition for effective protection of fundamental rights and EU law. Especially crucial is the role of national courts for upholding the rule of law on EU level. The role of the EU’s Rule of Law Report mechanism, introduced in 2020, is analysed as judicial independence forms an essential part of the reports. The EU Rule of Law reports serve as illustrations of the underlying problems, related to the rule of law and in particular the independence of the judiciary and effective judicial protection and related enforcement and implementation issues.

Constitutional justification of the burden of proof.

The doctrine of the burden of proof must face, as the pole of its argument, its connection with the Constitution and that it must assume that the doctrine of onus probandi projects a formulation that goes beyond its strict procedural conceptualization of the "ordinary" to access the sphere of constitutional guarantee, because a jurisdictional declaration of right cannot be refused when a party's burden of proof is aided by both the preemption of defenselessness and the right to use appropriate means of proof to substantiate - prove - its claim. It must be declared essential that recognition of the constitutional right to the burden of proof is correlated with the constitutional right to effective judicial protection. The Constitution, in addition, places this recognition in the procedural part without the possibility to recognize the relative recognition of the constitutional right as the burden of proof in the judge and which can justify the ex officio evidence of the part of the judge (in part). In the European model, the constitutional right to the burden of proof is correlated with the constitutional right to effective judicial protection, which is not characterized by its uncertainty or casuism - that is, when the burden of proof should apply in a civil process - but, on the contrary, by the constitutional recognition of a specific and specific constitutional right and the guarantee provided by the Constitution. Without constitutional recognition of the right to the burden of proof, it would be impossible to achieve effective judicial protection, since the use of "evidence for their protection" is essential for the party to have access to it - to effective judicial protection. Burden of proof rules have a double dimension. On the one hand, they affect the parties because they indicate the need to prove their claims and the scope of the right to prove what they have in the process. On the other hand, they are the only way out of the crossroads in which the court may find itself when it doubts the authenticity of the facts proved, either because they have not been proved, or because the evidence was insufficient or unsatisfactory. This decision consists in ruling against the party who has failed to prove the facts in question, constituting a factual presumption of the supremacy of the law sought to be enforced.

The Principle of Effectiveness of Eu Law from the Perspective of the Obligations of National Courts

The principle of effectiveness of EU law, despite the lack of an explicit basis in EU primary law, is the source of principles regulating the nature of EU law and the manner of its application. It particularly affects the performance of duties by domestic courts, which, according to the wording of Art. 19 para. 1 item 2 TEU, is one of the elements of the EU judicial system. It is based on a systemic dualism that includes the CJEU and national courts. When analyzing the implementation of the principle of effectiveness, it should be noted that it covers two areas. The first is of general nature and concerns the obligation to ensure the effectiveness of EU law, and the second – the subjective one – is related to the obligation to ensure the effectiveness of EU law in a specific case by granting adequate protection to the rights of an individual that derive from EU law. In this aspect, the courts are of key importance, as they implement it through the systemic principle of effective judicial protection. It is a guide that indicates how to proceed and what principles should be followed in the process of application of EU law. This process consists of several stages, the implementation of which is subordinated to one goal – to guarantee effective judicial protection and thus the effectiveness of EU law. First, the court examines whether a given claim is based on a norm that has a direct effect, which will determine the next stage of action. Then, by referring to the principle of direct effect, it subsumes and, if necessary, applies the principle of primacy of EU law or a pro-EU interpretation. The last element that indirectly implements the principle of effectiveness of EU law is the referral for a preliminary ruling.

How Many Appeals Does Effective Judicial Protection Require?

In Randstad, the Court of Justice was improperly called to arbitrate competence conflicts amongst Italy's highest courts. Specifically, the Court was asked whether the EU principle of effective judicial protection required a third level review of decisions giving – or, rather, not giving – effect to substantive EU law provisions. While the somewhat hands off take on the principle of effective judicial protection was more than appropriate on the facts of the case given the residual procedural autonomy of the Member States, the judgement and – to some extent – the more demanding opinion of the Advocate General raised questions as to what limits are placed on that autonomy by the principle of effective judicial protection.

Model sądowej kontroli decyzji z zakresu ochrony konkurencji w prawie polskim

The article concerns the issue of the intensity of control of the decisions of the Polish competition authority by the Court of Competition and Consumer Protection. Control in this respect refers to the criteria of both legality and rationality, as well as purposefulness and proportionality of the authority's interference in the legal sphere of the entity. The main aim of the study is to verify the research thesis. The Polish model of judicial review ensures a high standard and effectiveness of judicial protection, even exceeding the standard resulting from both the case law of the Court of Justice of the European Union and the European Court of Human Rights. The conducted research allowed us to conclude that both of the above hypotheses are true.

Preliminary Reference on Validity and the National Court: What Contribution to the Rule of Law and Effective Judicial Protection in the EU? A Focus on the French Administrative Judge

Preliminary Reference on Validity and the National Court: What Contribution to the Rule of Law and Effective Judicial Protection in the EU? A Focus on the French Administrative Judge

Preventing Harm: Interim Protection as an Aspect of Effective Judicial Protection

Preventing Harm: Interim Protection as an Aspect of Effective Judicial Protection

Effective Judicial Protection and the Regulation Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor's Office

Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office contains several ambiguous provisions which spark the interest of European Union law scholars. One of them is the Recital 30 of said regulation, according to which where the national law of a Member State provides for the internal review of certain acts within the structure of the national prosecutor’s office, Member States should not be obliged to provide for review by national courts. The article therefore examines the notion of effective judicial protection within the European Union, its expression in the EPPO Regulation, some of the pressing issues relating (although not only) to the wording of the Recital 30 of the Preamble of the EPPO Regulation with regard to the principle of effective judicial protection and contemplates on possible reaction from the Court of Justice of the European Union.

The right to peace in the system of human rights

The article analyzes and researchs the human right to peace as a special right of the third generation of human rights. The text of this work draws attention to the relationship between the right to peace and other human rights. Considerable importance is attached to enshrining the special right to peace in regional documents on the protection of human rights. It has been found that in the documents of international law, the issue of peace is often mentioned in preambles, as well as in articles outlining the goals and objectives of the activities of international organizations and the world community. The need to establish theright to peace as an independent human right at the level of international documents is analyzed, which, in turn, will help eradicate the practice of justifying violations of peace. The practice of the European Court of Human Rights regarding theviolation of the right to peace was considered.It was clarified and highlighted that although the right to peace is not directly enshrined as a separate and independent human right in the text of the European Convention on Human Rights, the violation of certain enshrined rights entails a violation, in including the guaranteed right to peace. The relationship between the right to peace and human rights is analyzed on the example of specific decisions of the European Court of Human Rights. The position on the need for further research into mechanisms for protecting the human right to peace, especially through the European Court of Human Rights, is highlighted. An opinion has been proposed, according to which enshrining the right of every person to peace in international declarations would be the first step towards its accurate recognition as an independent human right in the international arena. The position of the need to protect humanity’s right to peace is also highlighted, as such protection will be key for all humanity and will guarantee compliance with human rights standards. It is concluded that effective judicial protection of the human rightto peace will be offered in the future in view of further fruitful research in this area.

Effective judicial protection: enforcement, judicial federalism and the politics of EU law

AbstractThe general principle of effective judicial protection grants the right to obtain a remedy in the fields covered by EU law and is an essential component of the EU enforcement toolkit. Recent jurisprudential developments have complexified the role of this principle, by transforming it into a vehicle for the enforcement of the rule of law in the EU. As a result, the principle of effective judicial protection appears as the factotum of the EU legal system: it acts as a fundamental right and is an expression of the EU rule of law; furthermore, it is a legal basis to influence national fundamental rights and to impose procedural obligations on the EU institutions. This overview Article offers a novel account of the evolution of this principle in the EU legal landscape. First, it reflects on the trajectory of this evolving principle in the EU case law and in the academic discourse. Second, it identifies conceptual issues surrounding the role of effective judicial protection in the EU legal order in the light of the latest jurisprudential developments.

КОНФЛІКТНІСТЬ ДЕРЖАВНОЇ РЕЄСТРАЦІЇ ЯК УМОВА ВИНИКНЕННЯ ПУБЛІЧНО-ПРАВОВОГО СПОРУ

The article is devoted to the study of the conflict of state registration as a condition for the emergence of a public legal dispute. The legal nature of state registration is determined, taking into account the determinant of conflict as a condition for the emergence of public legal disputes. It is noted that the development of justice in Ukraine should be aimed at strengthening the rule of law by ensuring access to justice, fair judicial procedures, independence, impartiality and professionalism of judges, as well as legal certainty, Uniformity of judicial practice and openness of judicial decisions, effectiveness of judicial protection. The article studies an opinion on determination of stages of development of legal conflict. The existing definitions of the concept of legal conflict have been analyzed, which is generally well-established in the doctrine of public law. A legal conflict is defined as a conflict between two or more actors based on the opposite or incompatibility of their interests, needs or values. The features of legal conflict are named: the connection of the conflict with legal relations, the presence of legal features of the subjects or the object of the conflict; the possibility of legal settlement; sectoral certainty of the conflict; the presence of legal consequences; the possibility of using coercive means in the conflict resolution process; conflict resolution through a special legal procedure. The doctrinal definitions of terms “registration”, “registration proceedings”, “state registration” were studied. The conclusion concerning the special character of the conflict of relations in the field of state registration is given, which is: that the improper exercise of authority by subjects in the field of state registration may violate not only the public rights of persons to properly carry out registration activities, but also the relevant rights, on the occurrence or implementation of which obstacles are created (ownership of real estate, the right to conduct business, etc.). The concepts of “foundation” and “conditions” of public-legal dispute are delimited. It is emphasized that the conflict of relations in the field of state registration as a condition for the emergence of public legal disputes is determined by the individual's interest in realizing, first of all, certain rights granted by law (rights to real estate, the right to carry out entrepreneurial activities, etc.), and not the rights to accept the subject of the authority of relevant decisions or actions.

Autonomous but interdependent: Constitutional traditions on judicial protection and the general principle of effective judicial protection

The EU general principle of effective judicial protection is the epitome of the EU liberal-constitutionalism. The creative force of this principle has emerged, among others, in connection with the protection of the rule of law and the introduction of procedural guarantees both at the national and EU level. It is well established that effective judicial protection stems from the ECHR and the constitutional traditions common to the Member States. While existing scholarship has explored the influence of the ECHR over the development of this principle, less attention was paid to the impact of constitutional traditions from the Member States. Yet, exploring the role of constitutional traditions in shaping effective judicial protection, the primus inter pares among the general principles of EU law, goes at the heart of the conundrum of the EU: the latter is an autonomous legal system, which is inevitably shaped by the legal concepts and traditions existing in the Member States. This exploration is particularly timely. Some Member States affected by the rule-of-law backsliding have recently invoked constitutional traditions on judicial protection to delimit the application of EU standards of effective judicial protection, thus questioning the relationship between the EU principle and national conceptions of judicial protection.

Who’s Afraid of EU Primary Law? Judicial Review of the EPPO’s Decision on Forum Choice

The proposal for Regulation 2017/1939 establishing the European Public Prosecutor’s Office (The EPPO Regulation) was criticized for completely excluding the Court of Justice of the European Union (CJEU) from judicial review of decisions on forum of prosecution by the EPPO, an EU body. The system of judicial review under the EPPO Regulation has improved significantly relative to its initial proposal, by enabling national courts to refer preliminary questions to the CJEU. Despite this, several issues remain. This article examines whether the limitations imposed by the EPPO Regulation on the use of the action for annulment procedure laid down in Article 263 TFEU comply with EU primary law. More specifically, whether it complies with effective judicial protection as protected under Article 47 CFR, and the legal basis for the EPPO’s system of judicial review, Article 86(3) TFEU. We argue that the preliminary reference procedure is not effective enough in remedying the limited access to the action for annulment procedure to reliably safeguard the defendants’ right to effective judicial protection. To the extent that the current system for judicial review under the EPPO Regulation is at odds with the Article 47 CFR, the EU legislator did not have the competence to enact it under Article 86(3) TFEU. This article proposes that in order to circumvent the unlawful restrictions imposed by the EPPO Regulation, defendants could and should make use of the action for annulment procedure to contest the EPPO’s choice of forum.

Does the ‘more appropriate’ authority need to be independent? Rule of law implications for case referrals with respect of concentrations

In the recent Sped-Pro judgment, the General Court ruled that in order to guarantee effective judicial protection of the complainant, the Commission is obliged to examine the given national competition authority’s independence, and overall rule of law concerns, when it rejects complaints regarding Article 102 TFEU and concludes that such an authority is ‘best placed’ to hear the case. This contribution aims to discuss whether such obligation applies to case referrals from the Commission to Member States with respect of concentrations. On one hand, these are the same national competition authorities and the same standards should apply. On the other – the case referral system differs from the characteristics of the Articles 101–102 TFEU framework. Thus, this paper contains a discussion on the General Court’s judgment in Sped-Pro, the legal framework and practice regarding merger referrals, and, finally, the consequences of the judgment for the future approach of the Commission in the discussed matter.

Effective judicial protection and the European arrest warrant: Navigating between procedural autonomy and mutual trust

The article explores the ECJ case law on effective judicial protection in EAW proceedings, looking critically at the interpretation of Article 47 CFR in this context. The article reveals the approach to national procedural autonomy within the EAW case law, emerging most distinctly from the ECJ’s interpretation of “judicial authority” under Framework Decision 2002/584/JHA. The case law analysis challenges the scholarly arguments according to which the Court’s interpretation of Article 47 CFR has contributed to a significant erosion of national procedural autonomy. By contrast, the article concludes that in the context of judicial cooperation in criminal matters, the ECJ case law has mostly sought to mitigate the impact of Article 47 on national procedural autonomy. The Court may have done so to accommodate specific policy priorities pertaining to the nature of the EAW system (e.g. the fight against impunity) and uphold the principle of mutual trust.While showing internal incoherence in the interpretation of the notion of “judicial independence”, the Court has thus far failed to provide convincing arguments to secure the right to an effective judicial remedy for requested individuals in the cases at hand. European arrest warrant, effective judicial protection, procedural autonomy, independence of the judiciary, right to an effective remedy

Effective judicial protection and procedural autonomy beyond rule of law judgments: Randstad Italia

Effective judicial protection and procedural autonomy beyond rule of law judgments: Randstad Italia

Who shapes the CJEU regulatory jurisprudence? On the epistemic power of economic actors and ways to counter it

AbstractWhat role does the Court of Justice of the European Union (CJEU) play in holding European Union (EU) regulatory science, ie the science underpinning public regulation, to account for its epistemic quality? Since Pfizer, CJEU case law has strengthened the role of science in both EU risk regulation and litigation, whilst intensifying judicial scrutiny of scientific reasoning based on procedural standards. Scholars often welcome this approach as striking an adequate balance between effective judicial protection and institutional competence. Some praise the Court as an ‘information catalyst’ promoting procedures, in which epistemic quality is ensured through diligent consideration of and deliberation among all relevant voices. These debates, however, overlook the role of economic actors as information providers, in and challengers of EU risk regulation. This paper re-evaluates the modern post-Pfizer approach from a new, socio-legal perspective by studying, for the first time, the interactions between judicial review and the epistemic power of economic actors, ie their relative ability to influence what EU regulators know at the expense of other actors. We combine an epistemologically informed comparative institutional analysis with doctrinal critique of CJEU case law. Our findings show the need to rethink both legal standing and procedural review in EU risk regulation. Instead of catalysing inclusive procedures that open regulatory science to public scrutiny, the modern approach fosters an exclusive bilateral information exchange between the administration and the regulated industry. The Court reduces the function of process values, such as duty of care and reason-giving, to the protection of a small circle of actors, neglecting the public interest dimension of such values. Thus, the modern approach fails to address, and instead further entrenches the epistemic power imbalances inherent in EU risk regulation. We end by sketching out a normative and doctrinally sound vision of how CJEU review could contribute to EU expert accountability in a more publicly oriented way.

Causas de nulidad procesal: una revisión de la teoría de las identidades en el orden contencioso-administrativo

Several cases causing invalidity of procedural acts, both acts of the parties and judicial proceedings, refer to the triple-identity rule required for the claim as the object of the litigation: either in order not to repeat a second identical proceeding (confirmatory act, lis pendens and res judicata, depending on whether the first proceeding was not initiated by consenting to the act, is in process or has concluded with a finaljudgment on the merits), or in order not to alter that object within the same proceeding (procedural inconsistency with respect to the administrative review, throughout the proceeding or by an inconsistent judgment). The triple-identity civil rule establishes the scope of such identity for all these institutions connected by case law, alsotaking into account the singularities of the contentious-administrative object. But the extension of the procedural object still needs to be clarified jointly and individually, so that the cases of invalidity of procedural acts, in addition to responding to their specific objectives against duplicity and inconsistency, do not harm effective judicial protection or the results of material justice.

Procedural Activity and Satisfaction of Users who are Victims of Domestic Violence in the First Specialized Family Court

Object of study: The objective of the study was to determine the relationship between procedural activity and the satisfaction of female clients who are victims of family violence in the First Specialized Family Court. Methodology: A quantitative methodology was used, of a substantive type, at the correlation level. The level of the study was descriptive-correlational; the method was hypothetical-deductive, consisting of the observation of the problem, the formulation of the hypotheses, the design was non-experimental, since the variables were not actively manipulated, and it is also cross-sectional in nature. Importance: This research will provide the legal basis of the procedural activities and satisfaction of users who were victims of family violence of the First Specialized Family Court and family violence where there are inequalities in the exercise of force among the participants of a circle of relatives. Main results: The results show that 49% of the clients perceived an inadequate level, 35% a regular level and 16% an adequate level of procedural activity, while 43% perceived an inadequate level, 33% a regular level and 24% an adequate level of advice on the stages of the process. It concluded that there is a significant relationship between procedural activity and the satisfaction of the users who are victims of family violence in the first Specialized Family Court, since Spearman's Rho = 0.565 and ρ = 0.000 (ρ<0.05). Theoretical contributions:To make known that procedural activity are all acts performed before a judicial authority to resolve a conflict between several parties applying the current Law No. 30364, 2015, everyone has the right to effective judicial protection for the exercise or defense of their rights or interests, subject to due process.