Solving causes by report to the principles of the Strasbourg Court

Author:Calin Ioan Rus
Position:Faculty of Law, Babes Bolyai University, Romania
Pages:250-265
SUMMARY

This study aims to find a new perspective for interpretation in cases where the judgments of the international courts (in particular the European Court of Human Rights) are contradictory or create uncertainty, so that they cannot be effectively considered when judging. It is known that the national judge must take into account the judgments of the Strasbourg Court to prevent a possible... (see full summary)

 
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Solving causes by report to the principles
of the Strasbourg Court
1
Student Călin-Ioan RUS
2
Abstract
This study aims to find a new perspec tive for interpretation in cases where the
judgments of the international courts (in particular the European Court of Human Rights)
are contradictory or create uncertainty, so that they cannot be effectively considered when
judging. It is known that the national judge must take into account the judgments of the
Strasbourg Court to prevent a possible condemnation of the Romanian state, but when the
conventional block is not unitary, we need to find a benchmark that helps us correctly solve
the case. We believe that, in these circumstances, relying on the principles of law is
necessary, and the principle of trust in justice can be a new, determining factor, in
choosing a concrete legal solution. In order to demonstrate the effectiveness this
interpretation, a practical case will also be analysed, on the basis of which the implications
of such a method can be highlighted. Mo reover, the principle of trust in judgments could be
used in other cases similar to the p ractical situation presented and could become a
concrete way of interpretation in cases of case law overruling or case law uncertainties, so
that the individual’s rights are not injured.
Keywords: case law overruling, ECHR, legal interpretation, legal principles, prosecutors
papers.
JEL Classification: K14, K38, K41
1. The emergence of the concept of justice
Man is, by nature, a social being, and Abraham Maslow captures in his
hierarchy
3
the need for membership and association as a stringent one for achieving
a fulfilling life.
4
Starting from these axiological features, we can characterize
society as an eclectic group of people and personalities, which develops especially
through non-uniformity a true unity in diversity.
5
There are two great theories
about how human personality can be distinguished: the first one tells us that man is
born intrinsically good, right, and is negatively influenced by society,
6
while the
1
This article is conducted in the research work of the scientific scholarships project, awarded to the
students of the Babes-Bolyai University.
2
Călin-Ioan Rus Faculty of Law, Babes-Bolyai University, Romania, calinrusmail@gmail.com.
3
The pyramid created by th e psychologist Abraham Maslow to explain the theory of hierarchy of
human needs.
4
According to philosophical conceptions, happiness is the p rimary purpose of a being. Aristotle,
Politics, Paideia, 2001, Book VII, Chapters I and II.
5
The European Union motto is "Unite in Diversity!". For details, visit https://europa.eu/european-
union/about-eu/symbols/motto_ro (accessed on 27.09.2017 at 01:38).
6
Thomas D'Aquino, Summa Theologica, Polirom Publishing House, Iaşi, 2009, p. 36 et seq.
Juridical Tribune Volume 7, Special Issue, October 2017 251
second one, that man has an individualistic, evil ego, but negative parts, inward, are
corrected by society.
7
Both theories make it possible to distinguish between
different moral principles and create a mosaic of human characters.
Under these circumstances, when people's principles get into conflict,
different disputes arise and people can make decisions that favour an individual,
even at the risk of affecting others. Thus, the need for justice appears as a reaction
of the man whose interests have been injured to reduce his s uffering, to reach the
previous state or to receive other advantages in accordance with the prejudice
suffered. In primitive societies, the solution to such a conflict was simple: the
strongest one was right, and the others had to either obey or oppose (physically),
the winner remaining to be the "judge". The community begins to emerge and the
need for collective security goes beyond this "law of the strongest", but it also
establishes the idea of superior, omniscient and omnipotent force. Of course, under
these circumstances the judgment still belonged to divinity, but indirectly we can
think of auguri, priests, quacks or pontiffs. The societies are developing and laced,
and then the idea of separation of powers in the state appeared
8
. However, the
influences of religion can be felt event today in the Romanist law
9
and especially in
Sharia, where the Imam still is a true supreme judge.
2. The judge, an essential element of procedural guarantees
With the emergence of a new order, the judicial power becomes an
integral part, together with the legislative and executive power, in the formation of
new democracies. At the same time, it is remarked, through its independence and
social force, as a genuine guarantor of the rule of law. Thus, the judge can find
himself in a double hypostasis: a representative of the judicial and an agent of it.
As a representative, he should be a moral example and he has an essential
role in conveying trust. Churchill said “Democracy is the worst form of
government, except for all the others”. It is therefore essential that both democracy
and the elements that define it convey the idea of trust and efficiency. The judge,
as a representative of a defining component of the rule of law, has a moral duty
(that is not necessarily always to be found in the positive law) to convey to people
a feeling of safety, comfort, honesty, in a word trust.
10
Using a simple inductive
reasoning, we can see that this sentiment is further propagated at the level of the
7
We can consider Tho mas Hobbes' opinion that "people are very selfish and only concerned about
their own well-being and survival; they do not respect others and are indifferent to their fate."
8
On the emergence of the state and the separation of powers in the state see Cătălin-Silviu Săraru,
Elemente de Teoria generală a dreptului pentru învățământul economic. Caiet de seminar, C.H.
Beck Publishing House, Bucharest, 2010, pp. 2-7.
9
For a more detailed analysis, Călin Rus, The material sources of law - from the primordial society to
the positive law, in the volume "LEGE SAPERE AUDE!", VIIth edition, Târgu Jiu, 2015, pp. 24-25.
10
Conclusion arrived at by theoretical and empirical analysis. A complex material demonstrating the
link between justice and trust, Jason A. Colquitt, Jessica B. Rodell, Justice, Trust, a nd
Trustworthiness: a Longitudinal Analysis Integrating Three Theoretical Perspectives, “Academy
of Management Journal 2011”, Vol. 6, pp. 1183-1206.

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