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The article is devoted to the principle of the rule of law, implemented through the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. (Convention) by the European Court of Human Rights (ECHR). The relevance of studying this principle is due to the new approach formed by the Court that the rule of law is “inherent in all articles of the Convention.” We can see its application in the current case-law of the Court as one of the fundamental elements of the independence of national courts. Thus, the author aims to identify the theoretical and practical aspects of the ECHR’s approach to the problem of judicial independence and legal application of the rule of law principle, to study the relevant Court practice. The rule of law and the independence of the judiciary as the basic elements of the convention system are an integral part of the institution of the “European public order” developed by the ECHR, therefore it is necessary to trace their interconnection. The case-law of the ECHR served as the material for the study, which allowed us to identify all stages of the formation of the rule of law principle and its actual “content”. Analyzing judicial practice, along with using doctrinal approaches, we managed to identify the limits of permissible application of national laws, the powers of bodies and officials of various branches of government, bodies of the judicial community to the given problem, new aspects of the status of judges seen as one of the democratic values of society. To achieve this, the author used methods specific to studies of law and general scientific (traditional) research methods, with an emphasis on comparative and general legal methods, and the method of induction during the analysis of judicial practice. The paper examines the normative sources of law and judicial practice of the ECHR, allowing to reveal the principle of the rule of law, its correlation with the principle of judicial independence, the specifics of its impact on the domestic national judicial system and the functioning of the state apparatus, to determine the role of the principle in the convention mechanism of the protection of human rights.

The European Court of Human Rights (ECHR) is a unique institution not only in Europe, but in the whole world; it is by far the most effective among all the international human rights courts. Since its foundationing in 1959, it has dealt a huge number of decisions, becoming the most active participant in the international justice. The success of individual appeals, on which the entire Convention system is based, has inevitably led to the involvement of new areas of human rights in the subject of the court’s research, and has extended it to a new range of subjects. The Court’s systematic expansion of the area (borders) of the protection of human rights and fundamental freedoms, and the involvement of new areas in it due to the progressive nature of the practice, is a positive quality. The rich and diverse Strasbourg practice has changed the political and legal landscape of Europe. This has led to the ECHR becoming a victim of its own success, in some cases invading the sovereign powers of states and affecting their constitutional identity. Among practitioners and researchers of international justice issues, the voices about excessive activism of the Court started appearing more often. The author of this article studies the factors that contribute to the manifestation of activist positions by judges of the ECHR, identifies forms of activism, and distinguishes them from judicial passivism. The material for the article includes the work of prominent researchers of international justice problems, judges of the ECHR, Russian authors, and the judicial practice of this supranational court. The author uses traditional research methods — general scientific and special, with an emphasis on the comparative legal method. The subject of the study is the author’s scientific concepts that reveal judicial activism through the case-law of the ECHR. The relevance of the work lies in the problem of using the practice of supranational courts in national justice, and the effective application of the developed standards.

The rules on the competence of international courts determine the nature of the cases they resolve and the conditions for their admission to proceedings. The possibility composition of the court considers each case individually following the principle of jurisdiction to decide the jurisdiction due to the lack of a clear regulatory framework. Each international court of justice, relying on the international law, is solely competent to resolve doubts as to its own jurisdiction. This study aims to identify the approach of courts to solving jurisdictional problems in practice. The material for the study includes the cases of international courts, doctrinal comments, and legal positions of prominent researchers of international justice. The author describes the basic interpretative framework procedure, restraint, activism in the justification, and the lack of personal jurisdiction. Thus, if the international court of justice has no confidence in the existence of competence on the subject of the dispute, it will not take measures to justify it. The brevity of the position on the issue will be due to interpretative restraint. Activism arises when the international court of justice seeks to achieve a procedural result, substantiate the rationality of the result of interpretation or the impossibility of achieving it. Science has not resolved the issue of factors that may affect the limits of interpretation by international courts of their own competence.