Independence of Justice, the Rule of Law crisis in Poland and the European Convention on Human Rights

서지정보

· 발행기관 : 숭실대학교 법학연구소
· 수록지 정보 : 법학논총 / 56권 / 389 ~ 411페이지
· 저자명 : Peggy Ducoulombier

초록

The notion of independence of Justice is central to the Rule of Law and Separation of Powers principles. The European Court of Human Rights has developed an extensive case-law on the notion of independence of Justice on the basis of article 6 of the European Convention on Human Rights (the right to a fair trial). An independent judge is thus a judge who is free from undue pressure in the judicial decision-making process, from the Executive, Legislative or Judicial powers. However, while early case-law was brought by ordinary citizens complaining that they did not get a fair trial, because of the lack of independence of a judge, in recent years, the Court has experienced an increase in the number of applications brought by judges themselves. In several countries of the Council of Europe, reforms have been implemented with the result of threatening the independence of the Judiciary. Judges have turned into applicants before the European Court of Human Rights, relying mainly on article 6 and article 10 (Freedom of expression) of the Convention to support their claim and defend their rights. Through these applications, they defend the independence of the judiciary as a whole, as well as the Rule of Law. The Court has thus adapted its general principles to these specific situations and had also renewed its approach on the condition of the right to “a tribunal established by law” to fight, in symbiosis with the Court of Justice of the European Union, the phenomenon of the “Rule of Law Backsliding”, in particular in Poland.

참고자료

· 없음