State of Exception and Judicial Power

• Authors: Vaidotas Vaičaitis
• Languages of publication: EN

Abstracts

EN

The article deals with the concept of the state of exception in judicial reasoning. Two cases from the European Court of Human Rights together with some case law of the Lithuanian Constitutional Court are examined. The author presents three examples of a possible state of exception from particular case law: i) state of emergency, ii) the concept of transitional democracy and iii) economic crisis. The primary goal of the article is to try to define the boundaries of judicial competence in dealing with the phenomenon of state of exception, which traditionally falls within the competence of executive power. The article argues that the attitude towards this problem in case law has changed a lot during the past couple of decades. Although the court usually does not question the need of Government's announcement of particular state of exception (e.g. state of emergency or economic crisis), the judiciary has attributed to itself rather large discretion to examine whether a particular "exceptional" measure is proportional. According to the examined case law, so-called "primary" human rights (e.g. one's right to life, dignity etc.) as opposed to "secondary" rights (eligibility or economic rights) are usually treated as "absolute" rights and may not be infringed upon even during a state of exception. The Ždanoka judgment is here presented, because the vulnerability of the Latvian political system was treated as a certain exception, justifying some deviation from the common standard of safeguard of one's eligibility rights. The paper also examines recent cases of the Lithuanian Constitutional Court concerning diminished social-economic rights during economic crisis.

Keywords

EN

State of exception; state of emergency; economic crisis; human rights; judicial power; European Court of Human Rights; the Constitutional Court of the Republic of Lithuania

• Publisher: Sciendo
• Journal: Baltic Journal of Law & Politics
• Year: 2010
• Volume: 3
• Issue: 2
• Pages: 26-39

Dates

published

2010-01-01

online

2010-12-30

Contributors

author

Vaidotas Vaičaitis

• Faculty of Law, Vilnius University, Lithuania

References

• Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols. 4/11/1950, CETS No. 005 // available through the database
• Decision of the Constitutional Court of the Republic of Lithuania of 20 April 2010. Official Gazette, 2010, no. 46-2219.
• Ireland v. the United Kingdom. ECtHR Judgment of 18 January 1978 //
• Judgment of the Constitutional Court of the Republic of Lithuania of 22 October 2007. Official Gazette, 2007, no. 110-4511.
• Judgment of the Constitutional Court of the Republic of Lithuania of 25 November 2002. Official Gazette, 2002, no. 113-5057.
• Judgment of the Constitutional Court of the Republic of Lithuania of 29 June 2010 //
• Judgment of the Constitutional Court of the Republic of Lithuania of 3 December 2003. Official Gazette, 2003, no. 115-5221.
• McFarlane v. Tayside Health Board. House of Lords, 25 November 1999. All English Law Reports (15 December 1999): 961-979.
• Socialinių išmokų perskaičiavimo ir mokėjimo laikinasis įstatymas (Provisional Law on Re-evaluation of Social Payments). Official Gazette, 2009, no. 152-6820.
• Vaičaitis, Vaidotas A. "What Was Decided by Lithuanian Constitutional Court in Favour of Pensioners." Teisė 49 (2003): 124-133.
• Ždanoka v. Latvia. ECtHR Judgment of 16 March 2006 //

Identifiers

DOI

10.2478/v10076-010-0009-5