scholarly journals Implementation of International Legal Standards in the Revision of the Judgements that are in Force by Supreme Court of Finland

2015 ◽  
Vol 3 (3) ◽  
pp. 54-65
Author(s):  
Vladimir Jilkine
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Legal System ◽  
Court Decisions ◽  
Legal Standards ◽  
Judicial Practice ◽  
European Court ◽  
The Supreme Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article deals with the basis and procedure for review of court decisions that have entered into force, after the rulings of the European Court of Human Rights on violations of the Convention for the Protection of Human Rights and Fundamental Freedoms in review of the cases by the Supreme Court of Finland, in connection with the decision by which the applicant appealed to The European Court of Human Rights. The author’s analysis and comparison of judicial practice and the European legal system shows that when making decisions, the Supreme Court applies current national constitutional and legislative provisions.

DISPUTE AS TO THE INTERPRETATION OF ARTICLE 540(3) OF THE CODE OF CRIMINAL PROCEDURE ALONG WITH AN APPROVING GLOSS TO THE RESOLUTION OF THE SUPREME COURT OF 26 JUNE 2014, CASE REF. NO. I KZP 14/14

2021 ◽  
Vol 2 (XXI) ◽  
pp. 301-313
Author(s):  
Patrycja Trzeja
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Criminal Procedure ◽  
Case Law ◽  
Legal Issue ◽  
Criminal Proceedings ◽  
European Court ◽  
The Supreme Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

This gloss aims to assess the position presented by the Supreme Court in its resolution of 26 June 2014 as to whether the need to resume proceedings, as referred to in Article 540 § 3 of the Code of Criminal Procedure, can only relate to proceedings in the case to which the decision of the European Court of Human Rights on the violation of the Convention for the Protection of Human Rights and Fundamental Freedoms relates, or also to other criminal proceedings in which there has been a violation of the provisions of the Convention similar to that found in the decision of this Court issued against Poland. The analysis includes the presentation of doctrinal and case law views, as well as the author’s own reflections. What is important, the considerations end with a polemic with the arguments appearing in the interpretation dispute, and an assessment of the very process of interpretation by the Supreme Court when considering the legal issue in question.

scholarly journals Problems of the Russian Legislstion Improvement and Practice of its Applicatoin Based on the Decisions of the European Court of Human Rights (in the Spfere of the Administrative Coersion)

2021 ◽  
Vol 1 ◽  
pp. 30-39
Author(s):  
Viatcheslav Viatcheslavovich Gavrilov ◽  
◽  
Olga Eugenievna Shishkina ◽  
Keyword(s):  
Human Rights ◽  
Legal System ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article is devoted to the issues of the implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and decisions of the European Court of Human Rights into the Russian legal system. The sphere of administrative coercion and administrative liability was chosen as a practical material for this research. The authors stress the role and importance of the ECHR practice for the improvement of Russian legislation, outline problems and difficulties of the implementation of the ECHR judgments in this sphere.

scholarly journals Basic international and European standards in the field of justice and their impact on ensuring the consistency of judicial practice

1970 ◽  
pp. 74-80
Author(s):  
Petro Rudyk
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Standards ◽  
Council Of Europe ◽  
Basic Principles ◽  
Legal Standards ◽  
Judicial Practice ◽  
The Supreme Court ◽  
European Standards

Ukraine's integration into the European Union binds the former to approximate its legislation to international and European standards in various fields, including justice. This is also prompted by the EU-Ukraine Association Agreement and by the need for judicial reform, subject to the amendments to the Constitution of Ukraine of June 2016. The purpose of the article is to disclose basic international and European standards in the field of justice and their role in ensuring the consistency of judicial practice, which has not been studied in this aspect before. Scholars have different approaches to defining the concept of "international" and "European" legal standards in the field of justice and their division into types. The author proposes the understanding and definition of these concepts and the division of international standards into two main groups: 1) basic generally recognized international standards, that is binding international legal standards; and 2) special international standards in the field of justice that are advisory. The first group consists of the basic internationally recognized standards enshrined in UN human rights instruments, which are closely related to justice and include, in particular, everyone's entitlement to a fair and public hearing by a competent, independent and impartial tribunal. They are enshrined in the Universal Declaration of Human Rights (Article 10), the International Covenant on Civil and Political Rights (Article 14), the European Convention on Human Rights (Article 6, paragraph 1). These basic international standards are binding for democratic countries in the world and in Europe, in particular for Ukraine, as they have been ratified by it. A clear understanding of and adherence to mandatory basic internationally recognized international standards by courts of all tiers will help to ensure the consistency of judicial practice. The second group of international standards in the field of justice consists of the Basic Principles on the Independence of the Judiciary, approved by the resolutions of the UN General Assembly (1985), the Bangalore Principles of Judicial Conduct, approved by the UN Economic and Social Council Resolution (2006), recommendations of the Committee of Ministers of the Council of Europe, and opinions of the Consultative Council of European Judges for the attention of the Committee of Ministers of the Council of Europe, etc. They emphasize the need to adhere to such basic international standards as guaranteeing the independence of the judiciary by the state and enshrining them in the constitution or laws of the country, and define such basic principles of the functioning of the judiciary and judges as independence, objectivity, honesty, incorruptibility, observance of ethical rules, equal treatment of all parties to the proceedings, competence and diligence of courts, and so forth. Compliance with these general international standards in the field of justice will help to ensure the integrity of the judiciary in the interests of a person. Such standards and specific recommendations for ensuring the integrity of the judiciary are broadly outlined in the Consultative Council of European Judges Opinion on the Role of Courts in Ensuring the Unity of Law (2017), namely the importance of uniform application of the law, the possibility of the use of precedents, the paramount role of the Supreme Court in ensuring the integrity of the judiciary, the creation of a mechanism for filtering appeals, the inadmissibility of conflicting decisions, the importance of the role of the courts of appeal, the solid reasons for deviation from previous judicial practice, the compliance with the reporting system of courts, the application of previous decisions to specific cases, the ensuring of the principle of independence of judges, the use of various mechanisms to ensure the integrity of judicial practice. These issues were also discussed during the presentation of the Opinion in Ukraine and holding the conference Integrity of judicial practice: the view of the European Court of Human Rights and of the Supreme Court (2019).

EU values reflection in ECtHR case law

2021 ◽  
pp. 23-29
Author(s):  
Dmytro Boichuk ◽  
Kateryna Torhashova
Keyword(s):  
European Union ◽  
Human Rights ◽  
Legal System ◽  
Case Law ◽  
Practical Implementation ◽  
The European Union ◽  
Member States ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article focuses on the importance of the European Union's values in the development of the legal system of the member states of the Convention for the Protection of Human Rights and Fundamental Freedoms, and for the functioning of the European Union, further integration processes and their reflection in the case law of the European Court of Human Rights. The ideological interpretation and practical implementation of these decisions are reflected.

Practice of applying international principles in private law relations

2021 ◽  
Vol 28 (4) ◽  
pp. 223-231
Author(s):  
Olga T. Tur ◽  
Marta B. Kravchyk ◽  
Iryna Yu. Nastasiak ◽  
Myroslava M. Sirant ◽  
Nataliya V. Stetsyuk
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Private Law ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Judicial Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Content Specification

National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations

DUAL ATTRIBUTION OF ACTS COMMITTED BY A UN PEACEKEEPING FORCE: AN EMERGING NORM OF CUSTOMARY INTERNATIONAL LAW? THE DUTCH SUPREME COURT’S JUDGMENTS IN NUHANOVIÇ AND MUSTAFIĆ

2014 ◽  
Vol 23 (1) ◽  
pp. 287-297 ◽  
Author(s):  
Christine Bakker
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Supreme Court ◽  
International Law ◽  
Access To Justice ◽  
Customary International Law ◽  
Judicial Practice ◽  
Un Peacekeeping ◽  
European Court ◽  
The Supreme Court

In two cases lodged by victims (or their relatives) of the massacre in Srebrenica in 1995, the Supreme Court of the Netherlands has taken a progressive stance on the interpretation of international law on the responsibility of States and international organizations for wrongful acts. The Supreme Court upheld the earlier decisions of The Hague Court of Appeal, confirming that the Netherlands can be held responsible for the death and injuries of these victims, despite the fact that the Dutch troops employed to protect this enclave were part of a United Nations (UN) peacekeeping force. By accepting the possibility of dual attribution of an internationally wrongful act to both the UN and the troop-sending State, it has departed from the restrictive approach adopted in current judicial practice, in particular by the European Court of Human Rights. In this note, the Supreme Court’s judgments are discussed, focusing on (i) the question of dual attribution of an international wrongful act, and (ii) the extraterritorial application of human rights treaties. It concludes that, although the Supreme Court’s reliance on two sets of Draft Articles of the International Law Commission without referring to any State practice is surprising, these judgments should be welcomed as significant precedents, which may contribute to the development of a norm of customary international law. They also constitute an important step towards ensuring access to justice and reparation for the victims of gross human rights violations, such as those committed in Srebrenica.

scholarly journals The european court of human rights practice influence on the national system of Ukraine

2021 ◽  
pp. 32-36
Author(s):  
E.S. Kalyuzhna
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal System ◽  
The Rule Of Law ◽  
National System ◽  
Legal Provisions ◽  
Human Rights Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

Ukraine has recognized the jurisdiction of the European Court of Human Rights by acceding to the Convention for the Protection of Human Rights and Fundamental Freedoms. The implementation of Western concepts of the rule of law, human dignity and human rights stipulates study of the European Court of Human Rights practice, which, in accordance with national law, is the source of Ukrainian law. It is emphasized that the enshrinement of the rule of law principle in a number of laws was accompanied by a normative provision on the necessity to understand the content of this principle through the European Court of Human Rights practice. The purpose of the study is to elucidate the general provisions characterizing the impact of the European Court of Human Rightsice practice on the national system of Ukraine. It is substantiated that the European Court of Human Rights ensures the relevance of the Convention for the Protection of Human Rights and Fundamental Freedoms provisions, compliance of its rules with modernity, ensuring the general spirit of the Convention for the Protection of Human Rights and Fundamental Freedoms which is designed to uphold and ensure the values of a democratic society. It is noted that in interpreting the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights is a kind of subject of legal doctrines making in the field of human rights affecting the legal systems of the states parties to this Convention. Some decisions of the European Court of Human Rights in cases against Ukraine, which played a significant role in changing the national legal system, are analyzed, in particular,the decisions in the cases Koretsky and Others v. Ukraine, Natalia Mykhaylenko v. Ukraine, and Volokhy v. Ukraine. The following legal provisions as the separation of law and the law are mentioned, giving priority to law over the law  in case of contradiction between them; understanding the content of the rule of law, the importance of legal certainty and reasoning of the decision to restrict human rights, legal equality of people, and giving real access to a fair trial to a person, etc. It is concluded that when considering the applicants' complaints about Ukraine's non-fulfillment of its obligations in the field of human rights, the European Court of Human Rights forms legal provisions that become an integral part of the domestic legal system, in some cases they (the decisions) are the factor in changing legislation, and influence the legal doctrine transformation.

scholarly journals RIGHT TO A FAIR TRIAL IN THE CONTEXT OF ARTICLE 6 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

2021 ◽  
Author(s):  
Mariana Khmyz ◽  
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Judicial Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

Based on the study of the theory and generalization of judicial practice, in the article analyzes the main provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and reveals their content through the prism of the practice of the European Court of Human Rights.

Формалізація та алгоритмізація як шляхи забезпечення правильного застосування практики Європейського суду з прав людини

2019 ◽  
Vol 24 ◽  
Author(s):  
О. В. Білоус
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Human Right ◽  
Fundamental Freedom ◽  
European Court ◽  
Starting Point ◽  
Domestic Courts ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

Referring to the Supreme Court of Ukraine Grand Chamber’s jurisprudence in administrative cases the author suggests that domestic courts of Ukraine systematically apply the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights case-law in manner which is non-uniform, unmotivated, irrelevant and erroneous in essence, which is incompatible with the rule of law dictating clear, foreseeable, and adequately accessible national law to enable individuals to act in accordance with the law. In particular, the author exemplifies the foregoing with Supreme Court of Ukraine Grand Chamber’s judgments, in which European Court of Human Rights case-law was applied: in cases concerning solely the two public administration bodies; in cases with no legal connection with any conventional human right and fundamental freedom; without any meaningful attempt to articulate conclusions or guidelines relating to specific way to use provisions of Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights case-law in context of a particular case or in abstract and as well manner, in which that is to be used by domestic courts in further cases. With a view to prevent such occurrences the author maintains that there is a pressing need to formalize and algorithmize ways of application of these sources of law. There are some best practices to serve as a starting point for these rules such as the approach of Ukrainian courts to initially consider the case bearing in mind national statutes and other legislation and, subsequently, assess whether the way to solve the case determined by national law aligns with Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights case-law.

PROBLEMATIC ASPECTS OF ENFORCEMENT OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS IN UKRAINE

2017 ◽  
Author(s):  
Mariia Shvartseva ◽  
◽  
Anna Plotnikova ◽  
Kateryna Dubyna ◽  
◽  
...  
Keyword(s):  
Human Rights ◽  
The State ◽  
Court Decisions ◽  
Council Of Europe ◽  
European Court ◽  
Legal Nature ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Systemic Problems ◽  
Legislative Changes

The article is devoted to the study of problematic aspects of the European Court of Human Rights (hereinafter — the ECHR) execution decisions in Ukraine. The work clarifies the causes and systemic problems due to which Ukraine does not comply with the decisions of the ECHR. The relevant provisions of international and national legislation acts have been analyzed: the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), Protocols No. 1 and No. 14 to the Convention, the Law of Ukraine (hereinafter referred to as the LU) "On the Execution of Decisions and Application of the European Court Practice of Rights person", Law of Ukraine" On enforcement proceedings "," On state guarantees regarding the execution of court decisions ", Resolutions of the Cabinet of Ministers of Ukraine No. 440, No. 703. On the example of the case «Scozzari and Giunta v. Italy», it was shown that the state must comply with the final decisions in which it is a party. This performance should not be limited to compensation for damage caused, but should also include the adoption of general measures and individual nature to correct problems. The work outlined the place of the Committee of Ministers of the Europe Council in the process of execution by states of final decisions regarding them. It was noted that the execution of final decisions is carried out under the control of the Ministers Committee. The resolution “Enforcement of judgments of the European Court of Human Affairs” adopted by the Parliamentary Assembly of the Council of Europe, according to which the violating state can be punished for improper execution of the decisions of the ECHR, in particular with regard to the introduction of legislative changes, was analyzed. The strictest of these penalties is the expulsion of the country from the Council of Europe, which once again underlines the importance of this issue. The article examined the legal nature of "pilot decisions", their difference from ordinary decisions. It was found that the purpose of making “pilot decisions” is to identify systemic problems of the state and help in solving them. The paper provides a list of systemic problems that arose in the practice of the ECHR in cases against Ukraine. On the example of two “pilot decisions”, “Yuriy Nikolayevich Ivanov v. Ukraine” and “Burmych and others v. Ukraine”, specific systemic problems are considered, the ways in which Ukraine tried to overcome them are analyzed. The work contains the reasons that lead to the Ukraine failure to comply with court decisions. These factors are broken down into 3 groups: legal, financial and institutional. The authors propose ways to solve these problems.

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