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

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. Cdere, Tratat de procedur< civil<, 3rd Edition, Cultura Naional 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 reglement<ri, C.H. Beck Publishing House, Bucharest,

2004, p. 38.