August 2, 2010
Three New Comparative Articles
Alexei Trochev has posted Meddling with Justice: Competitive Politics, Impunity, and Distrusted Courts in Post-Orange Ukraine to SSRN.
Remo Caponi has posted Italian Civil Justice Reform 2009 to SSRN.
Dorota Leczykiewicz has posted 'Effective Judicial Protection' of Human Rights after Lisbon: Should National Courts Be Empowered to Review EU Secondary Law? to SSRN.
Abstracts after the jump.
Contrary to the theories of judicial empowerment that argue that the presence of strong political opposition is necessary for the development of an independent judiciary, the increasing fragmentation of power in today’s Ukraine goes hand-in-hand with judicial disempowerment - dependent courts regularly provide important benefits to rival elites.
The Italian Civil Justice Reform 2009 (Law no. 69 of 18,h June, 2009 and, based on this law, Legislative Decree no. 28 of 4th March) 2010) has amended several provisions of the Code of Civil Procedure (CCP), but it has left untouched the root causes of inefficiency of the Italian civil justice system.The causes of the unreasonable length of civil proceedings in Italy are many. There are too few judges in relation to the number of disputes to resolve. Many judicial districts are too small and should be merged. The judges are not assisted by law clerks in the preparation of their decisions. Judges often do not even have their own room to work. The presidents of the courts are appointed by the Supreme Council of the Judiciary (Consiglio Superiore della Magistratura) which often takes no account of their managerial skills. The number of court clerks is insufficient to cover the needs. Finally, e-justice still remains very marginal. None of these problems has been addressed by the 2009 reform. There is a need for political will, and human and material resources, which are not there. Therefore, we are satisfied with the modification of only the written words in the law's text. In this paper I do not examine all the innovations of the 2009 reform, but only the most important ones.
The article carries out a structural assessment of the EU system of protection of human rights after the entry into force of the Treaty of Lisbon. It compares the method of protecting human rights in EU law before and after Lisbon, and argues that the question of whether amendments introduced by the new Treaty ensure that the system of protection is complete cannot be answered unequivocally. It is only when the Court of Justice has had the opportunity to interpret art.275 TFEU that we will be able to determine whether all gaps in protecting human rights have been filled. Thus, the article advocates a return to the proposition made by A.G. Mengozzi in Gestoras and Segi as a solution to the potential problem of “incompleteness” of remedies. It explains that recognition of national courts’ power to review EU secondary-law not only complies with the existing doctrine but also improves the status of human rights in EU law and, despite suggestions to the contrary, leaves the position of the Court of Justice as the sole judicial arbiter of Union law intact.