European Judicial Research Articles

Real-time stress monitoring in a child-friendly court: a repeated measures field study

Most child-friendly court reforms are based on the assumption that the court setting is a stressful experience. Our objective was to analyze the acute stress levels of children who come to testify in a child-friendly investigative court using a person-by-environment approach. We employed a simple repeated measures design for this study, which included 42 minors of Spanish nationality who provided testimony as victims of violence in Spain’s inaugural Child-Friendly Court. Among the participants, 73.8% were girls with a mean age of 12.5 years (SD = 3.4), and 26.2% were boys with a mean age of 11.4 years (SD = 3.1). Stress levels were measured using heart rate variability, and anxiety was assessed using state-trait questionnaires. The study found that the mean percentile of anxiety remained at moderate levels, while stress remained at medium-low levels. No significant differences in anxiety or stress were found based on gender or type of crime. Repeated measures ANOVA revealed significant differences in stress levels among different court settings. Stress levels in the waiting room and Gesell room were significantly higher than those in the decompression room. In conclusion, the experience of testifying in a Gesell room about the aggressions suffered increases stress levels. However, in this sample and for this Pilot Court, the stress levels observed during testimony did not reach levels considered detrimental to children’s health. Our results lend support to the new European Judicial Policy, which includes the establishment and operation of Specialized Courts adapted to the needs of children and adolescents.

“The Right to be Remembered?”: The Contemporary Challenges of the “Streisand Effect” in the European Judicial Reality

Summary The protection of human privacy is one of the most disputable topics of European human rights law. That is why the judicial practice of the European Supranational Courts is rich in numerous decisions in this area, since human privacy is one of the most violated human rights, especially in the context of the development of digital technologies. Trying to find protection of their rights through institutional mechanisms of human rights (in particular, through the CJEU and the ECtHR), the applicant often finds himself/herself in a more difficult position: he/she becomes even more an object of public discussion. This phenomenon is especially vividly illustrated by the judicial practice of the European Supranational Courts in the field of protection of the right to be forgotten, which will be paid attention to in this research. At the same time, some suggestions will also be put forward to strengthen the effectiveness of protecting the confidentiality of applicants in the judicial decisions of the Courts.

The Emergence of the Established “By Law” Criterion for Reviewing European Judicial Appointments

AbstractThe “established by law” criterion recently emerged as an independent element of Article 6 of the European Convention on Human Rights (ECHR), through the European Court of Human Rights’ (ECtHR’s) judgment in Ástráðsson v. Iceland. The criterion imposes the obligation on states to appoint judges in accordance with the respective legal framework. Its emergence occurred at a precarious moment in European intergovernmental politics, with illiberal governments in several European states exhibiting tactics aimed at softening obstacles to their governing powers, upheld by their respective judiciaries. Through a dialog between the European Free Trade Association (EFTA) Court, the Court of Justice of the European Union (CJEU), and the ECtHR, the “established by law” criterion has now emerged in the European constitutional repository for thwarting such tactics. In this article, the story of this development is told through highlights from the case law of the European supranational courts and through the Icelandic backstory of the Ástráðsson case. This story reveals important nuances in how the case law needs to be understood with regards to the constitutional forces at stake. The conceptual approach of the ECtHR in Ástráðsson is also analyzed in context with Lon Fuller’s rule of law principle of congruence, which provides a framework for evaluating the merits of the Court’s tactic.

Book review: Preliminary References to the Court of Justice of the European Union and Effective Judicial Protection, by Clelia Lacchi. (Brussels: Larcier, 2020)

Book review: <i>Preliminary References to the Court of Justice of the European Union and Effective Judicial Protection</i>, by Clelia Lacchi. (Brussels: Larcier, 2020)

MISCELÁNEA: EL REGLAMENTO (UE) 2019/1111 RELATIVO A LA COMPETENCIA, EL RECONOCIMIENTO Y LA EJECUCIÓN DE RESOLUCIONES EN MATERIA MATRIMONIAL Y DE RESPONSABILIDAD PARENTAL Y SOBRE LA SUSTRACCIÓN INTERNACIONAL DE MENORES (VERSIÓN REFUNDIDA): PRINCIPALES NOVEDADES

The Council Regulation 2019/1111 will become fully applicable in August 2022. This text is perhaps the most important legal Regulation of the civil cooperation in the European Judicial Area in international family matters. Its importance in daily practice entails the need to know the improvements of a very long Regulation that in some moments is not easy to read. The European Union has endeavored to bring a document that tries to balance, on the one hand, the long-await mutual trust, that allows the necessary integration in the construction of the European judicial area, and on the other hand, the protection of the best interest of child as a principle that acts at different levels.

The Role of the Constitutional Courts in the European Judicial Network

The constitutional courts play a paramount role within the European judicial area and form a specific branch of the judicial network, including the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. Within the European Union (EU) with its specific compound structure, in which national legal orders and Union law reciprocally influence, complement, determine and affect each other, national constitutional courts and the CJEU are not only assigned with the common task to enforce EU law, but also to preserve its limits, first and foremost the principle of conferral and the constitutional identities of the Member States. The respect for these limits is an essential prerequisite for the Member State’s participation in the EU and repeatedly enshrined in the Treaties. In order to be able to fulfil this common tasks all sides need to engage in sincere cooperation and a dialectic process, the potential of which must not be curtailed by hierarchical perceptions.Whereas the national (constitutional) courts are obliged to respect the CJEU’s authority to ultimately decide on the interpretation of EU law in principle, it is the CJEU’s obligation to take their referrals seriously and thoroughly adress concerns brought forward. The constitutional courts of the Member States are assigned with the constitutional responsibility to accompany the process of European integration in order to ensure that sovereign rights are only transferred in line with the respective provisions as well as that the excercise of competences respects the limits laid down in the Treaties and does not interfere with the constitutional identities of theMember States. It is of course again for the CJEU to review whether EU institutions, bodies, offices, and agencies act within their mandate in the first place including a quite large tolerance for different interpretations. To the extend the CJEU, however, fails to assume this responsibility, it is for the constitutional courts of the Member States to step in. The desirable success of the European integration largely depends on an orderly, sustainable and generally accepted process in the long run to which the network of constitutional courts can make a decisive contribution, provided it is designed and lived as a true cooperation among equals. In this regard it is not only necessary to intensify the joint efforts, but also to evaluate possibilities to enhance the involvement of the national courts, in particular the establishment of a reverse preliminary ruling procedure. duty to give reasons, administrative measure, participation, administrative procedure

European Judicial Responses to Security Council Resolutions – A Consequentialist Assessment, written by Kushtrim Istrefi (2019)

European Judicial Responses to Security Council Resolutions – A Consequentialist Assessment, written by Kushtrim Istrefi (2019)

Competencia judicial internacional y medidas cautelares: hacia una tutela cautelar en el Proceso Civil Europeo convergente con los ordenamientos nacionales

La obtención y ejecución de medidas cautelares y provisionales en el ámbito de apli­cación del Derecho Internacional Privado de la Unión Europea constituye una materia que aún debe solventar diversas e importantes cuestiones controvertidas. Pese a la evolución efectuada en dicha mate­ria con el Reglamento 1215/2012 y con la jurisprudencia del TJUE, sigue sin estar claro el concepto de medida cautelar, la posibilidad de su solicitud con anterioridad a la sustanciación del asunto principal o la eficacia transfronteriza de las medidas adoptadas sin audiencia de la parte contraria. No obstante, en los últimos trabajos y propuestas de la Unión Europea para la armonización del Proceso Civil de la Unión, apreciamos una cierta tendencia a tratar de consagrar un régimen unitario de la tutela cautelar en el Es­pacio judicial europeo, caracterizado por admitir tanto la tutela cautelar solicitable ante causam como la adoptable inaudita parte debitoris y su eficacia transfronteriza más allá del Estado en que fue acordada.

ПОЛІТИКА ЄС ЩОДО ПРОТИДІЇ ТОРГІВЛІ ЛЮДЬМИ

After the mid-1990s, the EU realized the need to develop a common approach to combating human trafficking. As a result of the increased competence of the relevant EU institutions, as well as the increase of stakeholders’ concerns about its internal security and control of external borders began to grow, which gave push to the unprecedented formation, expansion and consolidation of anti-trafficking policy. Accordingly, a number of legislative and policy instruments have been created for this purpose. Important EU anti-trafficking program activities include the EMPACT program (European Multidisciplinary Platform Against Criminal Threats) (2011-2013) and (2013-2017), which consisted of the joint participation of Member States in multidisciplinary operational actions to combat organized crime involved in trafficking in human beings. Also in 2009, the EU developed the Global Approach to Migration and Mobility, as well as a separate document focused on strengthening the EU’s external influence against human trafficking. A more recent EU migration program in 2015 provided Member States with a comprehensive set of tools to manage migration and combat trafficking in human beings. Important tools in the fight against trafficking in human beings in the EU include Directive 2004/81/EU, which regulates the granting of temporary residence permits to third-country nationals who have been trafficked; Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims; Directive 2012/29/EU, which set additional minimum standards for the rights, support and protection of trafficking victims. In 2012 a joint EU strategy to eradicate trafficking-related crimes was launched for 2012-2016. An appropriate information platform has also been set up, which contains information on legal documents, initiatives, or possible projects and stakeholders dealing with human trafficking. In addition, a funding program has been established to promote quantitative and qualitative research projects, enhance the exchange of valuable knowledge and improve the quality of data collection. We came to the conclusion that institutional mechanism of the European Union in combating with trafficking in human beings is a system of EU bodies that adopt relevant regulations. This institutional mechanism has a rather complex structure, based on the European Parliament, the European Council, the European Commission, the European Anti-Trafficking Coordinator, the EU Expert Group on Trafficking of Human Beings, Europol, Eurojust, the European Judicial Network. The main component of this structure is the European Commission, which makes decisions and takes initiatives in this area. A characteristic feature of the EU’s anti-trafficking policy is not only to ensure respect for human rights of victims of this crime, but also to create appropriate conditions for its rehabilitation, further socialization and prosecution of perpetrators. In sum, the EU treats human trafficking as one of the global problems of our days and is making considerable efforts to combat it.

European Judicial Cooperation and Protection of Gender-Based Violence Victims, Fact or Fiction?

Judicial cooperation between EU member States shows us the limits of the EU. These limits are not only encountered by the European legislator; national legislators and judges encounter them too. The existence of different legal systems complicates mutual recognition. The difficulties during the creation process of the Directive 2011/99/EU on the European Protection Order show us how much the EU needs to be built still. During the negotiations there was a real political will and the member States had the necessary sensitivity to propose the creation of protection measures at a European level. What failed was the lack of previous harmonization which exceedingly complicates mutual recognition and the refusal from the member States to let go of their last redoubt of national sovereignty. Gender-based violence victims find an additional problem: the non-existence of a gender concept in the EU. We must ask ourselves if we are building the EU in a proper way. Throughout this article we will discuss the creation of a European Criminal Law with gender-based violence victims as an example. At the end we propose several measures in order to fight against ignorance and fear towards using mutual recognition instruments.

Impact of the Rule of Law as a Fundamental Public Governance Principle on Administrative Law Interpretation in the Czech Republic

The rule of law is a fundamental principle and the cornerstone of Western democracies and their public governance. Its underlying value is the idea of constraint of governmental power. The rule of law principle acts as an interpretative concept in most contexts of the exercise of public powers in the EU and its Member States, with the courts exercising supervision over the activities of administrative bodies. However, the teleological argumentation through fundamental principles is not inherent to all Central and Eastern European judicial and administrative bodies, given the long tradition of formalistic approach in most of them. The article analyses whether the approach has changed during the past thirty years and to which level the principle of the rule of law is used for interpretation of administrative law provisions by courts in the Czech Republic. Since the case law of the Czech Constitutional Court and the Czech Supreme Administrative Court is based on the arguments of legality and proportionality as the key elements of the rule of law, their cases were analysed using a comparative method. The article identifies a general tendency in legally difficult cases to move from purely linguistic interpretation to interpretation through values, including the rule of law. Most of the analysed cases reveal that the formalistic interpretation was strongly criticised by both the Constitutional and the Supreme Administrative courts. However, slight differences in their perception of the principles of legality and proportionality were discerned, namely in the debate on the intensity of control exercised by administrative courts over factual and discretionary decisions by administrative authorities. Nevertheless, these differences produce beneficial effects, as both principles continue being developed thanks to the exchange of opinions between the courts. Further research could be conducted for similar countries in the region.

Is There a Right to Human Dignity? The Example of the Right to Education of Refugees

Abstract The present article attempts a brief presentation of the legal framework in relation to the protection of the right to education and the protection of the human dignity of refugees, with reference to international and emphasis on European law, in an effort to recognize the inviolability of the right to education of refugees. At the same time, the question is raised if there is an independent right to human dignity or if human dignity is merely a framework term in light of which one could interpret, for example, the right to education of refugees. Through the discussed case-law of the European judicial and quasi-judicial bodies, which use the concept of human dignity, in order to protect asylum seekers, a European concept of human dignity has emerged, which may be acknowledged as an absolute fundamental right.

¿ESTÁ JUSTIFICADA LA MALA IMAGEN DE LA ADMINISTRACIÓN DE JUSTICIA ESPAÑOLA? ¿ES UN PROBLEMA DE INVERSIÓN?: UNA COMPARATIVA EUROPEA MEDIANTE EL ANÁLISIS DEA

La justicia es un bien público y, en consecuencia, en el seno de la Administración Pública, el correcto funcionamiento de la Administración de Justicia tiene capital importancia para una sociedad. En la actualidad, el sistema judicial español es objeto de severas críticas, que lo califican de ineficiente y tardío. Un gran sector social y profesional de la Administración de Justicia considera que la falta de medios es la causa de su mal funcionamiento, y reclaman mayor inversión. En este trabajo analizamos si ambas aseveraciones son acertadas: si es ineficiente la Administración de Justicia española y si un mayor gasto conllevaría a la mejora de este servicio público. Aplicando la metodología de Análisis Envolvente de Datos (DEA), determinamos la eficiencia de la Administración de Justicia española en relación con otras Administraciones de Justicia europeas y, mediante el análisis tobit, relacionamos las puntuaciones DEA y el gasto público. Nuestros resultados concluyen que un mayor esfuerzo en el gasto conllevará a una mejor posición. ABSTRACTJustice is a public good. Therefore, within the core of the Public Administration, the proper functioning of the Judicial Administration is of utmost importance to society. Currently, the Spanish Judicial System is being subject to sharp criticism that qualifies it as inefficient and belated. A large social and professional sector of the Judicial Administration considers that the lack of means is the reason behind its poor functioning and so, they demand greater investment. Throughout this paper the accuracy of both assertions will be analysed: whether the Spanish Judicial Administration is inefficient and whether a greater expenditure would lead to the improvement of such public service. By applying the Data Envelopment Analysis (DEA) methodology, the efficiency of the Spanish Judicial Administration is determined and compared to that of other European Judicial Administrations. Through the Tobit analysis, the DEA levels are related to the public spending. Our outcomes show that a greater expenditure effort will result into a better ranking position.

How Many Cases? Assessing the Comparability of EU Judicial Datasets

Efficiency is often considered a key component of any effective justice system, and a crucial drive for economic growth. A growing body of comparative studies explores how judicial reforms leading to a greater efficiency or effectiveness are positively correlated with economic growth (e.g. Global Competitiveness Report of the World Economic Forum, Doing Business Report of the World Bank, Judicial Reforms in Europe Report of the ENCJ, The Economics of Civil Justice of the OECD). At EU level, the European Commission has launched tools like the EU Justice Scoreboard to help the Member States to improve the effectiveness of their justice systems. This instrument, in particular, has been created to help EU Member Stares upholding more effective justice and, in particular, to measure and compare the efficiency of EU justice systems. The belief is that more effective and efficient justice systems will drive stronger economic growth, since “effective justice systems are a prerequisite for an investment and business friendly environment” (EU Justice Scoreboard 2016, p. 1). Efficiency and effectiveness are just two, out of several, basic features of justice systems. An efficient (or effective) justice system could potentially suffer from a lack of an independent judiciary and/or miss fairness of procedures and quality of judicial service. This paper, though, does not want to challenge the efficiency approach on these grounds. The researchers aim to check to what extent the data on efficiency used in academic and political discourses that are provided by the Scoreboard is sound enough to make empirically grounded statements in a valid comparative format among the Member States. In a simplified (but not simplistic) way, efficiency can be defined as the ratio between inputs (resources) and outputs (decisions) of the system. While formally aiming to measure and compare efficiency of Member States’ justice systems, the EU-Justice Scoreboard does not link inputs and outputs indicators to for this purpose. Furthermore, we argue that any attempt to make cross-country comparisons is affected by the comparability of the data sets used for the purpose. Another scholar presenting his proposal at this conference, Marco Fabri, explores the question of the comparability of human resources data (judges) that in labour intensive organisation like courts can be considered as the key production factor (“Too few judges” paper). This paper explores a different area, complementing Fabri’s work. The researchers choose to explore the case-flow indicators presented by the Scoreboard which bases its analysis on the number of incoming, pending and resolved cases. The number of cases a court system manages to handle in a year is often considered emblematic for its efficiency. In Europe, the Commission for the Efficiency of Justice of the Council of Europe is the primary collector of such data, which is published in the “CEPEJ Evaluation of European Judicial Systems Report”. The same data is also used by the EU Justice Scoreboard and by many other academic and policy documents. The analysis will deal with the comparability of these data and show that such comparability cannot be taken for granted. It will assess if the definition of “case”, of the different “case types” and of their status (incoming, pending and resolved) is consistent across the different Member States. It will check if national peculiarities make the comparison between apparently identical groups of cases unreliable or inconsistent. Previous analysis suggests that the comparability of such data is critical in many areas, such as the consistency of the answers across time (at state level), and between countries within the same period. The paper will show how the data provided by the Member States to fill apparently simple categories of cases like small claim, and litigious or non-litigious cases vary, making a comparison at least problematic. This finding, together with similar problems associated with measuring the number of judges, suggest caution should be exercised in the use of such indicators for comparative purpose among justice systems in the academic and political debate.

Access to foreign law in practice: easier said than done

This paper deals with the achilles heel of private international law: how to access, understand and apply foreign law. As globalisation advances, so does the necessity to apply and interpret foreign law, but today even accessing it is still a challenge. This article examines the situation through an empirical study on the application of foreign parentage law by Belgian courts and non-judicial authorities. It also focuses on the use of two existing tools to ascertain foreign law, that is, the European Judicial Network website and the London Convention. The empirical data reveal that judges and non-judicial authorities have no objections in principle to applying foreign law. However, they lack structural support to properly carry out this task. Hence, Belgian courts use escape mechanisms to avoid having to apply foreign law. The article argues that the access to up-to-date and good-quality information on foreign law should remain a key concern of private international law.

General Overview on Law no.133/2015 "For the Treatment of the Property and the Completion of the Process of Property Compensation" in Albania

As a matter of fact, this material is concentrated on a general overview of law no.133/2015 drafted over the property "For the treatment of the property and the completion of the process of property compensation". Through the new formulas that this law provides, it is aimed to be regulated and completed the process of return and compensation of the properties to the proprietors, by ending the efforts of 23 years of democracy, along which this case did not get the right solution. According to it, despite experts of the Agency of Return and Compensation of the Properties, governors, through the assistance and support of the European Council and experts of the World Bank has drafted the basis of an important reform, is considered that this law despite its positive aspects, violates the rights and fundamental freedoms of the property. Respecting the fundamental rights is an expression of the state of the right. In our country, the respect of fundamental human rights is a guarantee for the integration in the European Union. Protection of the Right of Property has certainly a great importance. But unfortunately it still remains an unsolved problem in our country even with law no.133/2015. This law treats this right basing on the actual situation of the matter of fundamental rights in Albania and in a special manner, the right of property, which is an obligation that comes as well from the European Judicial Order, through the Card of the Fundamental Rights (Article 17). This law is treated from the standpoint of the problems which still accompany this process in our country. It is a matter of fact that the Albanian reality is shown to be very problematic in the standpoint of the standards which are required by Article 1 of Protocol 1 KEDNJ. Respect and protection of the right of property has been in focus of a considerable number of complaints submitted near GJEDNJ from Albanian citizens. The concern regarding this situation is doubled because are violated the rights of individuals and the Albanian state is induced to pay considerable amounts as a result of such decisions. The number of similar complaints has been growing in numbers. Despite the commitment of the Albanian state and the measures that are taken, this matter still continues to be a problem for our reality. This law in its entirety does not treat the ascertained problems and attacked by the civil society, Albanian Citizens and the international institutions. Regarding the problems treated, this law is in contradiction with the constitutional principle of the legal security and is not effective at all as it is required by GJEDNJ. DOI: 10.5901/ajis.2016.v5n1p163

Dealing with Parallel Universes: Antinomies of Sovereignty and the Protection of National Identity in European Judicial Discourse

This article addresses the relevance of national identity to EU and domestic judicial practice. It argues that there are two parallel universes of protection in the EU Treaty and national constitutions which often pose conflicting obligations to those bound by them and which do not communicate nearly enough. Judicial interpretation of the relevant EU and national provisions is a welcome development but not always key to reconciling differences. To this purpose, the article reflects on the CJEU’s interpretation of the EU’s renewed commitment in the Lisbon Treaty to protect national identities. It also provides a comparative overview of how Member States have construed their own national identity. The latter involves making connections with current issues emerging from post-Lisbon domestic case law that this article contributes to and advances. As illustrated in this article, the respect for national identity afforded by the Treaty is amorphous and often fails to capture the level of protection mandated by national constitutions. At the same time, national constitutions provide a fuzzy picture with different levels of commitment to identity. The way these two constitutional charters have been interpreted by European and certain national judges will help us identify the different approaches and illustrate the conflict between them vis-à-vis the concept of an EU federalized structure. Ultimately, the article aims to create a typology of situations where identity retention should be reserved to Member States with a view to resolving the current tension between the two legal orders. It will point to the possibility for a plurality of ‘limited powers’ approach acting as a check on the EU, while avoiding the risk of jeopardizing the course of European integration.

The Reformulation of the Questions Referred to the CJEU for a Preliminary Ruling in Direct Taxation: Towards a Constructive Cooperation Model

This article appraises the role of the reformulation of preliminary rulings by the Court of Justice of the European Union (‘CJEU’ or ‘the Court’) in the field of direct taxation. The few articles on this matter written mainly by French scholars adopt a descriptive/analytical approach. As such, they enumerate the rulings whereby the Court alters the original questions posed by the national court by limiting or widening the scope of the reply, replacing a question of interpretation of EU law into one of validity or vice versa, etc. However, this contribution makes an attempt to go beyond this analytical approach in order to construe a normative model which shed light on the current interplay between national courts and the CJEU. By analysing several CJEU decisions in the field of direct taxation, my article purports to demonstrate that reformulating the questions referred is not neutral. Due to the lack of positive integration in this area, it will be argued that the reformulation constitutes a technique that enables the Court to foster its own agenda of integration at the peak of the European Judicial Power.

A Treasure Trove of Information for Justice Reform

This article is a review of European Judicial Systems – Edition 2014 (2012 Data): Efficiency and Quality of Justice , European Commission for the Efficiency of Justice, available online in full and summary versions at www.coe.int/cepej .

Competition or Cooperation?: State of Play and Future Perspectives on the Relations between Europol, Eurojust and the European Judicial Network

This article analyses the cooperation between EU agencies and bodies active in the fight against serious cross-border crime. It focuses on the cooperation between Europol and Eurojust on the one hand, and between Eurojust and the European Judicial Network on the other hand. Considering the existence of grey areas in which their respective mandates overlap, the complementarity of their actions and their smooth cooperation are essential to ensure coherence within the EU area of criminal justice. In both situations, the analysis of the current state of their cooperation allows the identification of good practices as well as points of concern. The current negotiations for regulations on Europol and Eurojust offer the opportunity to reflect on future perspectives and to suggest possible improvements.