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Article

Reasoning in Domestic Judgments in New Democracies

A View from Strasbourg

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords European Court of Human Rights, Article 6, new democracies, reasoning in domestic judgments
Authors Dragoljub Popović
AbstractAuthor's information

    One of the shortcomings in the functioning of the justice systems in new democracies consists of insufficient reasoning in judgments. The European Court of Human Rights (Court) had to deal with the issue in cases in which applicants invoked Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). The Court’s case law developments concerning the issue are analysed in this article. The general rule emerged in leading cases and was subsequently followed. It says there is an obligation incumbent on national courts to provide reasons for their judgments. Therefore, insufficient reasoning in a judgment given at the domestic level of jurisdiction provides grounds for finding a violation of Article 6 of the Convention. The problem of lack of adequate reasoning in domestic judgments has been given attention among scholars, judges and practising lawyers in new democracies. The Court’s jurisprudence provides guidance to solutions aimed at improvement of the administration of justice in those countries, which are Member States of the Convention.


Dragoljub Popović
Former judge of the ECtHR, attorney-at-law at the Belgrade Bar, professor of law at Union University (Belgrade, Serbia) and a visiting professor at Creighton University (Omaha, NE, USA).
Article

Politics and Pragmatism

The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Constitutional Court of the Russian Federation, European Court of Human Rights, Russia
Authors Bill Bowring
AbstractAuthor's information

    After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?


Bill Bowring
Professor of Law, Birkbeck College, University of London.
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