The right to an independent court of law. Theoretical aspects. The european court of human rights case-law

Author:Mircea Damaschin
Position:Associated Profesor, Ph.D. Dean of the Faculty of Social and Administrative Sciences, ?Nicolae Titulescu' University, Bucharest
Pages:46-60
SUMMARY

International specialized literature approaches the concept of court of law from two perspectives: on the one hand, this concept refers to the court of law, regarded as a key linking element within the unitary judicial system, and, on the other hand, to the panel of judges, regarded as the main subject of the criminal procedure, i.e. the judges who take part in trying a criminal case. In a... (see full summary)

 
FREE EXCERPT
46 Lex ET Scientia. Juridical Series
LESIJ NO. XVIII, VOL. 1/2011
THE RIGHT TO AN INDEPENDENT COURT OF LAW.
THEORETICAL ASPECTS. THE EUROPEAN COURT
OF HUMAN RIGHTS CASE-LAW
Mircea DAMASCHIN
Abstract
International specialized literature approaches the concept of court of law from two
perspectives: on the one hand, this concept refers to the court of law, regarded as a key linking
element within the unitary judicial system, and, on the other hand, to the panel of judges, regarded
as the main subject of the criminal procedure, i.e. the judges who take part in trying a criminal
case. In a criminal case, the court of law plays the most important role and its main attribute is the
function of jurisdiction, which represents the sum of powers granted to a magistrate for the
administration of justice1. The court of law plays a significant role in the rule of law state; thus,
both at national and international level, attempts are made in order to set up a legal framework
consisting of norms issued by national lawmakers or by official international institutions or by
some magistrate associations or NGOs. All these efforts are meant to underline the significant role
that the judiciary plays in a rule of law democratic society. In this study we shall try to analyse the
concept of “independent court of law”, as this is presented in the national system of law, in its
specific norms that are provided by international normative acts and in the principles deriving
from the ECHR case-law.
Keywords: the right to a fair trial; the right to an independent court of justice; criminal
case; the European Court of Human Rights (ECtHR); unification of case-law.
Introduction
The concept of independence of the court of justice implies two aspects: the court’s
independence from the other state authorities and the court’s independence from the parties
involved in the trial.
The judge’s independence from the other state authorities – particularly, from the executive
power – depends upon the appointment procedure and the length of the term of office, the judge’s
protection from external pressure and the judges’ appearance of independence.
The judge’s independence means that litigations are settled in the absence of any
interference from any state body or from any other person2. At the same time, the judge’s main

Associated Profesor, Ph.D. Dean of the Faculty of Social and Administrative Sciences, „Nicolae Titulescu”
University, Bucharest (e-mail: damaschin.mircea@gmail.com). This study was supported by CNCSIS –UEFISCSU,
project number PNII – IDEI 860/2009- cod CNCSIS ID-1094.
1 V. Cdere, Tratat de procedur civil, 3rd Edition, Cultura Naional Publishing House, Bucharest, 1928, p. 44,
apud I. Leş InstituYii judiciare contemporane, C.H. Beck Publishing House, Bucharest, 2007, p. 2.
2 I. Leş, Organizarea sistemului judiciar românesc. Noile reglementri, C.H. Beck Publishing House, Bucharest,
2004, p. 38.

To continue reading

REQUEST YOUR TRIAL