The principle of legal certainty v. supremacy of the law

In Soviet times and unfortunately in present court practice, the principle of supremacy of the law (legality) was and still is the particular aim, but it is not considered as only the instrument of defence of human rights.

Let's imagine a situation. This situation is real, taken from practice.

The person got the administrative act, which violated his rights. He had one-year term to appeal against the administrative act to a court. However, after 7 months, parliament passed the law which established 6 months as the term for appealing.

After that the person filed a lawsuit. Skipping the deadline for filing a claim is the reason to leave the claim without consideration. What should the court do? To leave a claim without consideration as it is prescribed by law? Or to hear the case?

In a similar case (“Melnyk v. Ukraine”) the ECHR noted:

“…where the issue of an effective remedy is concerned, the remedy in question must already exist with a sufficient degree of certainty. In this regard, the Court takes the view that the retroactive application of procedural law would undermine the principle of legal certainty and would be contrary to the rule of law when it deprives a person of access to a remedy which is deemed to be effective.

… the essence of the procedural changes in the present case was to speed up civil proceedings and, accordingly, to reduce their overall length. There is nothing to suggest that it was aimed at limiting access to the court to any particular category of cases. Nevertheless, despite their clearly legitimate aim, in the Court’s opinion the refusal of the applicant’s appeal was not relevant to the purpose of these procedural changes”.

According to the principle of legal certainty individuals must be able to rely upon the clear wording of the rule governing their conduct so that they can foresee the legal consequences of their actions.

Date: 2015-01-02; view: 940