scholarly journals The System of Procedural Principles of Proceedings in Administrative Offenses Cases

2020 ◽  
Vol 15 (11) ◽  
pp. 153-159
Author(s):  
A. R. Nobel
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Russian Federation ◽  
The Right ◽  
Procedural Decisions

The paper provides definitions of the principles and system of principles of proceedings in cases of administrative offenses. Based on the norms of the Constitution of the Russian Federation, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Code of Administrative Offenses of the Russian Federation and the practice of their application, the author substantiates the position that the principles of proceedings in cases of administrative offenses are, to varying degrees, enshrined in regulatory legal acts constituting legislation on administrative offenses, both directly and indirectly. The system of procedural principles of proceedings in cases of administrative offenses is revealed. The author includes the following principles in this system: open consideration; state language; direct examination of evidence; freedom to evaluate evidence; compulsory consideration of applications; freedom to appeal against procedural decisions; competition and equality of the parties; fair consideration of the case; ensuring the right to defense. The content of these principles having a pronounced procedural nature is formed through a systemic interpretation of the provisions of the Constitution of the Russian Federation, the European Convention on Human Rights, the Code of Administrative Offenses of the Russian Federation, the case law of the Constitutional Court of the Russian Federation and the European Court of Human Rights. The author concludes that, despite the existence of various ways of consolidating the procedural principles of proceedings in cases of administrative offenses, the greatest efficiency of their perception and application will be achieved only when the principles are reflected in a special chapter of the Code of Administrative Offenses of the Russian Federation.

scholarly journals Enforceability of ECtHR Judgements in Russia: Alternatives of Interaction Between Jurisdictions

2018 ◽  
Vol 50 ◽  
pp. 01192
Author(s):  
Ivan Usenkov ◽  
Igor Morozov
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Constitutional Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Analysis ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Russian Federation

Issues of enforceability of the European Court of Human Rights judgements in Russia are considered in the article. The authors infer the priority of the model, in which judgements can be unimplemented if they are contrary to the constitutional law of the country in accordance with comparative legal analysis. However, the state is ought to make everything possible in order to enforce the decision, even interpret the Constitution, if possible. The authors conclude that issues of correlation of sovereignty and regional consensus, subsidiarity principles and supranationality, interpretation of the European Convention for the Protection of Human Rights and fundamental freedoms have not obtained a response. The European Court of Human Rights should be more thorough with the aspects of the national legal systems, but rejection of the execution of its judgements is unacceptable. Relevant provisions are to be excluded from the FCL from 21.07.1994 N 1-FCL «The Constitutional Court of the Russian Federation».

Executive Force of the ECtHR Judgments in a Legal System of the Russian Federation (on the Basis of the Practice of the Constitutional Court)

2016 ◽  
Vol 4 (12) ◽  
pp. 0-0
Author(s):  
Сергей Князев ◽  
Syergyey Knyazyev
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
Systematic Analysis ◽  
European Court ◽  
Russian Constitution ◽  
Protection Of Human Rights ◽  
The Subject ◽  
The Russian Federation

The article deals with the complex of issues concerned with the acknowledgement of the executive force of judgments of the European Court of Human Rights (ECtHR) and ensuring their implementation in the Russian Federation. According to the author, the main difficulties of the implementation of the Convention´s provisions for Russia are not connected with the Convention for the Protection of Human Rights and Fundamental Freedoms per se, but the interpretation of its norms in the judgments of the ECtHR. The author emphasized that the ECtHR usually avoids the direct conflicts with the Russian constitutional order in a process of decision-making and their execution does not cause any problems in a majority of cases. However, the active using of such tools as evolutive interpretation, European consensus, limits of national discretion, etc. by the ECtHR leads to the fact that its judgments are in contradiction with the Russian Constitution or legal positions of the Constitutional Court of the Russian Federation. Such ECtHR judgments are the subject matter of analysis of present article in a view of the assessing their executive force. On a basis of the systematic analysis of the legal positions of the Constitutional Court of the Russian Federation, the author comes to the conclusion about the necessity of surveying of all available to the Russian authorities’ funds to maintain a cohesive European (Convention) and national (constitutional) legal orders. Derogation from the legal obligation of the ECtHR judgments can be permissible in exceptional cases only and may be dictated only by the aims of protection of the state sovereignty and the supremacy of the Constitution of the Russian Federation.

The “Bolotnoe Affair” and the Implementation of the Right to Freedom of Assembly in the Russian Federation

2016 ◽  
Vol 41 (3-4) ◽  
pp. 396-426
Author(s):  
Mariya Riekkinen
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Court Cases ◽  
Legal Analysis ◽  
Parliamentary Elections ◽  
European Court ◽  
Moscow City ◽  
The Russian Federation ◽  
The Right

A series of protests across Russia, triggered by procedural violations during the 2011 parliamentary elections and results of the 2012 presidential elections, culminated on 6 May 2012 with a demonstration at Bolotnaia Square in Moscow. That demonstration led to violent clashes between protesters and the police. The dispersal of this demonstration and the subsequent criminal and administrative trials conducted against some of the protesters, as well as the controversy regarding the severity of some of the penalties imposed by the courts, became known as the Bolotnoe Affair. The Bolotnoe Affair is analyzed from the perspective of implementing the right to freedom of assembly in Russia. The main goal is to conduct a contextual legal analysis clarifying whether the right to freedom of assembly is adequately implemented in the legal order of the Russian Federation, in order to illustrate whether the protesters in the Bolotnoe Affair were able to express their opinions with regard to the procedure and results of the elections. The leading court cases relevant to the participatory rights of the protesters as exemplified by the appellate decisions of the Moscow City Court will also be examined. In particular, twelve decisions of the Moscow City Court during the period 2012–2014 (full texts of which are reproduced in publicly available legal databases) are reviewed, as well as two recent judgments in European Court of Human Rights (ECtHR) cases closely related to these earlier cases. Analyzing the Moscow City Court decisions vis-à-vis the judgments of the ECtHR, the author concludes that the Moscow City Court’s rulings did not conform with the provisions of the European Convention on Human Rights (echr) regarding the right to freedom of assembly and the right to liberty.

Re Review of Constitutionality of Article 11 and Article 392(4) Items 3 and 4 of the Civil Procedure Code of the Russian Federation

2021 ◽  
Vol 194 ◽  
pp. 487-502
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Civil Procedure ◽  
European Convention ◽  
Constitutional Court ◽  
Content Type ◽  
Procedure Code ◽  
European Court ◽  
Municipal Law ◽  
The Russian Federation

487Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Judgments of European Court of Human Rights — Execution of judgments of European Court of Human Rights — Russian judgments — Whether European Court of Human Rights’ judgments providing grounds for reconsideration of decision in a civil case where opposing decision of Constitutional Court existing — Russian law — Article 392(4) of Russian Civil Procedure Code — The law of the Russian Federation

scholarly journals The value of the ECtHR practice for making procedural decisions when conducting covert investigative (search) actions

2020 ◽  
pp. 158-169
Author(s):  
Olena Bilichak
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
European Convention ◽  
Scientific Article ◽  
Criminal Proceedings ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Procedural Decisions

Based on the analysis of the provisions of domestic law, the practice of pre-trial investigation and court, the scientific article develops recommendations on how to take into account the decisions of the European Court of Human Rights in covert investigative (search) actions and use the results obtained in evidence. It is established that the current legislation provides for the possibility of conducting pre-trial investigation of serious and especially serious crimes of covert investigative (investigative) actions, which in most cases is related to intrusion into privacy and correspondence of a person protected by Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, knowledge of the content and consideration of the case law of the ECtHR in making procedural decisions on the conduct of pre-trial investigation by certain NSDCs and the use of the results obtained by them in court evidence is a strong guarantee of the legality of court decisions. When making certain procedural decisions regarding the materials of covert investigative (investigative) actions at the pre-trial and court stages of criminal proceedings, it should be taken into account that the right to secrecy of correspondence guaranteed by Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ensures the inviolability of all forms of communication between persons, both by means of communication and without them. All covert investigative (search) actions should be carried out only in accordance with the law. Audio and video materials submitted by private individuals and produced «with the help» of law enforcement officers cannot be considered admissible evidence. Carrying out NSRD to control the commission of a crime (Article 271 of the CPC of Ukraine) should exclude the possibility of provocation by the pre-trial investigation authorities. If their intelligence staff was involved in such a special operation, in the initial stages of its conduct the conduct of the pre-trial investigation body should be exclusively passive and limited to observation. In any case, the evidence in the criminal proceedings in which the relevant special operation took place should not be based only on its materials, and the burden of proof rests with the prosecution. Key words: criminal proceedings, European Court of Human Rights, covert investigative actions.

scholarly journals Application by courts of judgments of the constitutional court of the russian federation and the European Court of Human Rights in one case

2019 ◽  
pp. 125-133
Author(s):  
A. V. Chaykina
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Point Of View ◽  
Vienna Convention ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
The United Kingdom ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Russian Federation

The paper deals with the problem of the application by the courts of the Russian Federation of decisions of the Constitutional Court of the Russian Federation and the European Court of Human Rights in the same civil case. The problem is caused by the uncertainty of the hierarchy of these sources of law in terms of international and national law. The issue of non-fulfillment of ECtHR judgments was considered from the point of view of the provisions of the Vienna Convention on the Law of Treaties of 1969. The author analyzes foreign practice on the execution of judgments of the ECHR. In particular, the author analyzes the practice of the United Kingdom and the Federal Republic of Germany, having faced with the contradiction of the fundamental norms of the state with the ECtHR judgments.The mechanisms to balance the legal positions of these courts have been revealed. The author suggests considering Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms as one of the possible means to eliminate the contradictions between the Constitutional Court of the Russian Federation and the ECHR. The procedure of advisory opinions, from the point of view of the author, may make it possible to coordinate the legal positions of the ECHR and the national practice of applying the Rome Convention to the stage of submitting a complaint of Russian citizens to the ECHR.

PRAVO NA POŠTOVANjE DOMA U PRAKSI USTAVNOG SUDA REPUBLIKE SRBIJE (UTICAJ PRAKSE EVROPSKOG SUDA ZA LjUDSKA PRAVA)

2021 ◽  
pp. 511-531
Author(s):  
Jelena Čanović ◽  
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Controversial Issues ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
European Standards ◽  
The Right

A special regime for the protection of the right to respect for home is provided with the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. With ratification of this Convention, the Republic of Serbia has undertaken the obligation to respect and effectively implement the rights guaranteed by the European Convention as a "minimum European standard". The role of the European Court of Human Rights in defining and determining the scope of basic human rights, so the right to respect for home too, is reflected in its rich practice, which greatly affects national legal systems. Thus, the European Court in its practice has defined the principles and criteria for providing protection of the right to respect for home. To monitor the used instruments for protection of the right to respect for home in the domestic legal order and their harmonization with European standards of protection, it is necessary to analyze the practice of the Constitutional Court of the Republic of Serbia, through which is reflected practice of regular courts as well. Considering that in the practice of the highest courts in our country, as well as in the practice of the Constitutional Court, the right to respect for home has been recognized recently, the lack of numerous theoretical discussions and practical analyzes of prominent controversial issues indicates the relevance of this topic about we write about.

scholarly journals Russia`s Participation in the European Convention for the Protection of Human Rights and Fundamental Freedoms

2021 ◽  
pp. 46-56
Author(s):  
A. Y. Novoseltsev ◽  
K. V. Stepanyugin
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
International Organizations ◽  
Point Of View ◽  
European Convention ◽  
Constitutional Court ◽  
International Treaties ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Russian Federation

INTRODUCTION. The article examines problematic issues of Russia’s participation in the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the authors, the form of Russia’s participation in the Convention, associated with membership in the council of Europe, is unacceptable for its sovereignty. When ratifying the Convention, the degree of objectivity and impartiality of the ECHR in relation to the Russian Federation and the properties of the legal norms of the Convention were not taken into account.MATERIALS AND METHODS. The materials for the research are international agreements, resolutions of international organizations, decisions of the ECHR and the Constitutional Court of the Russian Federa- tion, as well as doctrinal sources on the topic. The methodological basis of the article was formed by general scientific and special research methods. The article critically analyzes the arguments in favor of Russia’s participation in the European Convention and examines the reasons why the ECHR can hardly be called an objective court for a country that is not a member of the EU.RESEARCH RESULTS. The authors believe that the unenforceability of ECHR judgements is only part of the problem of enforcing binding decisions of international organizations. According to the authors, it is necessary to determine the fundamental foundations of Russia’s participation in international organizations that can make decisions legally binding for our country, and to limit their circle to the participants of the integration association with Russia, organizations of strategic partners, as well as organizations in which Russia can influence the adoption decisions. The principles of Russia’s participation in international organizations that make legally binding decisions should be included in the Federal Law “On International Treaties of the Russian Federation”.DISCUSSION AND CONCLUSIONS. The subordination of Russia to the jurisdiction of an interstate human rights body must meet a number of conditions that the ECHR does not meet. Because of this, problems arise with the implementation by Russia of the decisions of the ECHR. The authors share the point of view that the ECHR is an effective mechanism for the protection of rights and freedoms, but only for a group of states – European integration participants bound by common interests, values, and coordinated foreign and domestic policies. Therefore Russia needs to return to the rules of cooperation in the field of human rights with European states, set out in the Helsinki Final Act on Security and Cooperation in Europe.

scholarly journals The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St Petersburg

2019 ◽  
Vol 30 (3) ◽  
pp. 933-959 ◽  
Author(s):  
Jeffrey Kahn
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
Constitutional Court ◽  
Member States ◽  
European Court ◽  
International Court ◽  
The Russian Federation ◽  
Interpretive Authority ◽  
The Relationship

Abstract Russia eagerly ratified the European Convention on Human Rights (ECHR) in 1998. Twenty years later, the chair of its Constitutional Court now expresses resentment at the subordination of Russian sovereignty. A new law expands his Court’s jurisdiction to deny effect to judgments of the European Court of Human Rights, an unprecedented power that has already been used twice. This article analyses this law and its application in its first two years. Both the claim of ‘subordination’ and the Russian response to it, in law and practice, rest on weak legal ground. But Russia’s action also raises deeper theoretical and practical questions for the ECHR as a ‘living instrument’ subject to the ‘evolutive’ interpretations of the Strasbourg Court. If other member states mimic Russia’s response to these issues, a European human rights system premised on the final interpretive authority of an international court could come to its end.

scholarly journals Ustavno i konvencijsko jemstvo prava svojine

2019 ◽  
Vol 56 (2) ◽  
pp. 443-467
Author(s):  
Hamdija Šarkinović
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Human Right ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
And Control

The paper deals with property, which is guaranteed by Article 58 of the Constitution of Montenegro and Article 1 of Protocol No.1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The constitutional-law concept of the right to property in Montenegro is broader than the traditional civil law concept, as it includes all real rights, as the European Court under the notion of property, in addition to the usual, includes all acquired rights of a person. The autonomous concept of property and possessions within the meaning of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms was separately covered, consisting of three rules: principle of peaceful enjoyment of possessions, deprivation of possessions, and control of the use of property. The application of the text of justification of interference with property in the case law of the European Court is explained, which includes the text of legality, the text of a legitimate aim in the general or public interest and the text of proportionality. However, the case law of the ordinary courts in the field of guarantees of property rights, constitutional and convention’s is not harmonized with the case law of the European Court of Human Rights and represents one of the main tasks of the Constitutional Court in the coming period. The Constitutional Court of Montenegro follows the concept of property enshrined in the Constitution and gives the property meaning as the constitutional and convention human right guaranteed by the Constitution, and its inviolability as one of the fundamental values of the constitutional order, although the case law of the Constitutional Court has not fully and always been coherent with the aforementioned principles.

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