Fourth instance doctrine and the right to a reasoned judgement in the practice of the European Court of Human Rights

Dajović, Goran; Spaić, Bojan

doi:10.5937/analipfb1903166d

Cited by 3 publications

(1 citation statement)

References 4 publications

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“…K. P.), izvire iz obaveze nacionalnih sudova da na adekvatan način izlože razloge na kojima se zasniva rešenje pravnog i faktičkog pitanja u konkretnom sporu. 43 U vezi sa našim shvatanjem oko posljedica nezakonitih naredbi za pretresanje, rekli bismo da nas praksa ESLJP uveliko demantuje. Naime, prema stanovištu Suda prihvatanje nezakonito dobijenih dokaza samo po sebi ne predstavlja kršenje čl.…”

Section: Obrazloženje Naredbe I Nezakoniti Dokaziunclassified

The right to a reasoned order on determination of special evidentiary actions and (critical) review of the practice of the European court of human rights

Pejović¹,

Paović²

2021

Crimen

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Increasingly dangerous, and internationally distributed, (organized) crime has caused the need for states to find adequate means to put an end to all this. Of course, today, as many years before, we can hear that criminals are "one step ahead of the state." That, when we look at the situation around us, is unfortunately not far from the truth. However, faced with this problem, states at the normative level, in order to anticipate criminal behavior, as well as, if the crime has already been committed, to reliably identify the perpetrators, stipulate (besides general evidentiary actions) special evidentiary actions/techniques in national legislation. That is quite legitimate. However, when the state prescribes certain rules, or conditions under which certain (evidentiary) actions must be taken, then it is more than unusual that state does not respect what it has prescribed. In the following lines, we were dealing with special evidentiary actions, predominantly the general characteristics of the same and in connection with them the practice of the ECtHR. All this with the aim of trying to present (from our point of view) a plausible practice, with the hope that we will break with the previous one, which in our opinion is not good.

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Section: Obrazloženje Naredbe I Nezakoniti Dokaziunclassified

The right to a reasoned order on determination of special evidentiary actions and (critical) review of the practice of the European court of human rights

Pejović¹,

Paović²

2021

Crimen

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The Possibility of Regulatory Function of Judicial Power

Dajović

2022

Anali

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The article presents two theses. The first is that previous court judgments can be „sources“ of general rules and standards that will constraint the courts, as decision-makers, even if they are not formally established as legally binding. The second is that it should be so for several reasons – the most important being predictability and equality. In this part of the article the concepts of separation of powers, types of state functions, and judicial power are explained. The reasons why the judicial power can perform the law-making function in a legal system in which it is not formally established are presented. As an illustration of how the system in which courts perform a law-making function works, the application of the doctrine of stare decisis in the USA is described. Finally, several decisions of the Constitutional Court of Serbia that indicate similar practice in Serbian legal system are analyzed.

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Opravdanost ustavnosudskog aktivizmа zarad zaštite ljudskih prava: Evropski sud za ljudska prava i Ustavni sud Bosne i Hercegovine

Stević

2021

Eudaimonia

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The author analyzes some decisions of the European Court of Human Rights and its interpretive principles and decisions of the Constitutional Court of Bosnia and Herzegovina, in order to answer when the creative approach of the Constitutional Court can be justified. No kind of constitutional court activism is acceptable when it comes to normative control of constitutionality, while it can be in the procedure on appeal. The author claims that constitutional court should decide on the basis of the text of the constitution. The European Court considers that the interpretation should enable the real application of the guaranteed right, but it is disputable when such an interpretation grows into the creation of law, which the author discusses primarily from a theoretical aspect, and then analyzes the case law. The main thesis in the paper is that constitutional activism is justified only in exceptional cases in order to protect human rights and freedoms.

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Fourth instance doctrine and the right to a reasoned judgement in the practice of the European Court of Human Rights

Cited by 3 publications

References 4 publications

The right to a reasoned order on determination of special evidentiary actions and (critical) review of the practice of the European court of human rights

The right to a reasoned order on determination of special evidentiary actions and (critical) review of the practice of the European court of human rights

The Possibility of Regulatory Function of Judicial Power

Opravdanost ustavnosudskog aktivizmа zarad zaštite ljudskih prava: Evropski sud za ljudska prava i Ustavni sud Bosne i Hercegovine

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