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The Concept of the Rule of Law and the European Court of Human Rights$
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Geranne Lautenbach

Print publication date: 2013

Print ISBN-13: 9780199671199

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671199.001.0001

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Judicial Safeguards

Judicial Safeguards

(p.124) 4 Judicial Safeguards
The Concept of the Rule of Law and the European Court of Human Rights

Geranne Lautenbach

Oxford University Press

The European Court of Human Rights (ECtHR) has broadened the scope of the right to a fair trial based on the rule of law to include access to court, the requirement that judicial decisions must be executed, and that the finality of judicial decisions must be respected. In the context of the right to an effective remedy, the ECtHR has also emphasised that the rule of law demands that judicial decisions must be executed. The two different, albeit overlapping, functions of judicial safeguards — to settle disputes and to ensure that government acts within the boundaries set by law — are both described as aspects of the rule of law by the ECtHR. In addition, the rule of law requires the independence of the judiciary from the executive and the legislature in the case law. Access to court and respect for final judicial decisions are meant to ensure the effectiveness of the right to a fair trial. The rule of law namely opposes arbitrary restrictions of the right of access to court, and in that sense sets a minimum standard for the right of access to court. The essence of the right of access to court must be upheld. Similar to legality, the right of access to court is important to prevent domestic law arbitrarily limiting the right to a fair trial. Surprisingly, the ECtHR has not frequently referred to the rule of law in administrative and criminal cases when reviewing interferences with the right to a fair trial. It is also noteworthy that the ECtHR has not often linked article 13 of the European Convention on Human Rights to the rule of law. Remarkably, the ECtHR has not developed a strict notion of the independence of the judiciary. Lastly, one could have also expected the ECtHR to motivate its decisions concerning the consecutive exercise of advisory and adjudicative powers with reference to the rule of law.

Keywords:   European Court of Human Rights, fair trial, rule of law, access to court

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