english summary 1089 ECHR, but that this is not ‘obvious‘ or that ‘clear support’ for such a conclusion is missing. Further problems for the courts and the legislator are that theECHRbrings with it positive obligations for the states, such as that certain behaviour should be made criminal, but on the other hand, national criminal codes cannot be interpreted by analogy. This means that the legislator is obliged to legislate, and that – if legislation has not been passed – the courts have to acquit for acts which should have been made punishable. The view on national constitutions as superior to other national norms and the view on the judiciary as arranged side by side with the other organs of state have been confirmed at the same time as the national legal order has become intertwined by other legal orders. In such diverse law with intertwined legal orders, it is difficult, not to say impossible, to arrange norms from different legal orders hierarchically according to formal criteria. Material criteria, such as weights of importance of specific human rights, are needed. Such an approach can be related to approaches from the 17th century where also different legal orders were intertwined. As regards the intensity of constitutional critical judging, I – on the basis of Nordic case-law but with my own interpretation and extrapolation of it – suggest that the obligations of the judge to prefer constitutional principles, including principles from e.g. ECHR, to other norms can be divided into seven categories: 1) The responsibility of the judge for a fair trial and a wellfunctioning procedure, 2) The responsibility of the judge for guaranteeing access to court, 3) The responsibility of the judge for protecting the principle of legality, 4) The responsibility of the judge for the protection of fundamental rights and freedoms of a political nature, 5) The responsibility of the judge for the protection of fundamental economic rights, 6) The responsibility of the judge for the protection of other types of rights, and 7) The responsibility of the judge for the monitoring of the relationships between the other two organs of the state. Constitutional critical judging is, I argue, most intense, under 1) and then descends. The procedural guarantees have had a foundation in statutes and judicial oaths but have been raised to the constitutional level mainly through the application of article 6 of ECHR. In respect of categories 5), 6) and 7), there is an important element of balancing rights and freedoms against each other, both within the categories and between the categories.
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