The Principle of the Rule of Law
1. The notion of “rule of law”, conceived by European nations as a common value and fundamental principle for greater unity, was recognised in the Statute of the Council of Europe of 1949 (ETS No. 1). This principle, together with those of democracy and human rights, plays a significant role today in the Council of Europe and the case law of the European Court of Human Rights in particular.
2. The European Union, the Organization for Security and Co-operation in Europe (OSCE) and their member states are also committed to the principles of the “rule of law”, democracy and human rights. Explicit reference to the “rule of law” can be found, inter alia, in European Union/European Community treaties, the case law of the European Court of Justice, as well as in the Copenhagen criteria of 1993 for accession to the European Union.
3. Despite a general commitment to this principle, the variability in terminology and understanding of the term, both within the Council of Europe and in its member states, has elicited confusion. In particular, the French expression Etat de droit (being perhaps the translation of the term Rechtsstaat known in the German legal tradition and in many others) has often been used but does not always reflect the English language notion of “rule of law” as adequately as the expression prééminence du droit, which is reflected in the French version of the Statute of the Council of Europe, in the preamble to the European Convention on Human Rights (ETS No. 5) and in the Strasbourg Court’s case law.
4. The Parliamentary Assembly draws attention to the fact that in some recent democracies in eastern Europe, the main trends in legal thinking foster an understanding of the “rule of law” as “supremacy of statute law”, in Russian verkhovenstvozakona. “Rule of law” should, however, be translated into Russian as verkhovenstoprava, just as “rule of law” is correctly translated into French as prééminence du droit and not as prééminence de la loi. (Similarly the words Recht and droit in Rechtsstaat/Etat de droit should be translated into Russian as prava.) Translating “rule of law” as verkhovenstozakona gives rise to great concern, since in some of these countries certain traditions of the totalitarian state, contrary to the “rule of law”, are still present both in theory and in practice. Such a formalistic interpretation of the terms “rule of law” and Etat de droit (as well as of Rechtsstaat) runs contrary to the essence of both “rule of law” and prééminence du droit. Certainly in these cases there is an inappropriate lack of consistency and clarity when translating into the legal terms used in member states.
|
|
|
5. The Assembly emphasises the need to ensure the unification that encompasses the principles of legality and of due process, which has the same basic elements, found in particular in the case law of the European Court of Human Rights, by whatever name this concept is now used in the Council of Europe.
6. Consequently, the Assembly:
6.1. stresses that the terms “rule of law” and prééminence du droit are substantive legal concepts which are synonymous, and which should be considered as such in all English and French language versions of documents issued by the Assembly as well as in the member states in their official translations;
6.2. believes that the subject merits further reflection with the assistance of the European Commission for Democracy through Law (Venice Commission).
[1]F. (F 2d) Federal Reporter (Federal Reporter, Second Series)сборникрешенийФедеральныхапелляционныхсудов (втораясериясборникасудебныхрешенийфедеральныхапелляционныхсудовСША).Reporters may be official/unofficial. Their volume, pagination, or editor should be cited. U.S. Supreme Court reporters as “U.S.”.
[2]Circuit округ
[3]Cert. denied (cert. den.) certiorarideniedвистребованииделаотказано.
[4]Поделу: “in the matter of”, “petition of”, “application of”. Note that procedural phrases should be used italicized like abbreviation: ex relas “on the relation of”, “for the use of’, “on behalf of”.
[5]The Latin term ex parte is used in law to refer to court proceedings for the benefit of one party to a controversy, without the other being present.
[6]Proper names (incl. reporters and other sources) are preferably to be abbreviated. See The Blue Book.
[7]Here is provided an unofficial reporter.
|
|
|
[8]A "per curiam" decision is a decision delivered via an opinion issued in the name of the Court rather than specific judges.
[9]For pending cases.
[10]For multiple decisions within a single year.
[11]For multiple decisions within a single year.
[12]Text adopted by the Standing Committee, acting on behalf of the Assembly, on 23 November 2007 (see Doc. 11343, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr. Jurgens).
Дата добавления: 2020-01-07; просмотров: 81; Мы поможем в написании вашей работы! |
Мы поможем в написании ваших работ!