scholarly journals The role of the European Court of Human Rights in ensuring appropriate and effective protection of a fair court in Ukraine

2020 ◽  
Vol 4 (4) ◽  
pp. 82-88
Author(s):  
Nadiya Khrystynchenko
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
The State ◽  
Court Decision ◽  
Access To Justice ◽  
Court Decisions ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
And Control

The article deals with the study of the practice of the European Court of human rights on liability and control over non-enforcement of court decisions in Ukraine. The study notes the importance of the issue of enforcement of court decisions that have entered into legal force. In particular, it is indicated that such an act falls under the qualification of Article 6 of the convention for the protection of human rights and fundamental freedoms – a violation of the right to a fair trial. The European Court of human rights has repeatedly noted in its decisions the seriousness and scale of this threat to Ukraine. It has been noted that the percentage of enforcement of court decisions has never exceeded 40-45%, and in some years, it has decreased to critical values of 5-10%. The purpose of the article is to analyze the practice of the ECHR on liability and control over non-enforcement of court decisions in Ukraine and provide recommendations for improving this situation. It has been concluded that in Ukraine there is a problem of a persistent recurring nature – excessive length of enforcement or non-enforcement of court decisions, which is a violation of the rights guaranteed by the ECHR to a fair trial and to respect for property. Despite the fact that the ECHR has repeatedly pointed out the execution of a court decision as part of a trial, this position of the ECHR is still not always properly taken into account in Ukraine. Enforcement of a court decision is part of states ' obligations to ensure access to justice under Article 6 of the convention for the protection of human rights and fundamental freedoms. A person who has a court decision against a state or local government body is not required to initiate additional procedures to implement this decision. Unconditional implementation of such a decision should be guaranteed by the state. In order to improve the situation in the area under study, it is advisable to review the current legis-lation that ensures the implementation of court decisions, and continue reforming the civil service. Ap-propriate actions should be carried out in cooperation between the Cabinet of Ministers of Ukraine, the Verkhovna Rada of Ukraine and other responsible executive authorities. It seems appropriate to create a government commission to improve the work of the state executive service.

scholarly journals Ensuring the Right to a Fair Trial Pre-Trial Stage Criminal Process

2016 ◽  
Vol 3 (4) ◽  
pp. 133-141
Author(s):  
A A Tymoshenko
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Access To Justice ◽  
Criminal Process ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The article considers the problem of respect for the right to a fair trial at the pre-trial stage of the criminal process. It is pro- posed to take into account the secondary role of pre-trial activity, whose task is to prepare materials for trial. This competitiveness for the prosecution is not allowed. Analysis of the European Court of Human Rights indicates sufficient blurring boundaries that separate statement of the facts of the presence or absence of a violation of Art. 6 of the European Convention «On Protection of Human Rights and Fundamental Freedoms» (the right to a fair trial). But in any case the decision is motivated by the observance of guarantees of access to justice. Hence, any infringement of the possibi

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.

The European Court of Human Rights: Sabeh El Leil v. France

2012 ◽  
Vol 51 (1) ◽  
pp. 1-16
Author(s):  
Gilles Cuniberti
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
Sovereign Immunity ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right ◽  
Wrongful Dismissal

In Sabeh el Leil v. France, the European Court of Human Rights (‘‘ECtHR’’ or ‘‘the Court’’) ruled for the second time that a contracting state had violated the right to a fair trial afforded by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘‘Convention’’) by denying access to its courts to an embassy employee suing for wrongful dismissal on the grounds that the employer enjoyed sovereign immunity. The ECtHR had first ruled so a year earlier in Cudak v. Lithuania, where the plaintiff was also an embassy employee.

scholarly journals Torture as a ground for inadmissibility of evidence

2021 ◽  
pp. 28-31
Author(s):  
Maryna HRYTSENKO
Keyword(s):  
Human Rights ◽  
Third Parties ◽  
The State ◽  
Evidence Based ◽  
Legal Systems ◽  
Criminal Proceedings ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The European Court of Human Rights, which focuses on the Convention for the Protection of Human Rights and Fundamental Freedoms, points to the importance of the prohibition of torture. The Court has formed its position based on the importance of Article 3 of the Convention and, consequently, the inadmissibility of the evidence obtained in violation of that article by the prosecution. This paper analyzes the practice of the European Court of Human Rights on the implementation of evidence-based activities in national legal systems, and in particular examines the requirements of the Court on the admissibility of evidence-based exercise and activity obtained in the course of work results. The paper demonstrates the ECHR's practice on the issue of torture in obtaining evidence and the consequences of using such a «method», its significance for the practice of national courts and the modernization of the position of courts in relation to the dynamics of this issue. As a result, problematic areas of Ukrainian legislation and justice were identified. The reasons for the use of torture by the authorities and the safeguards introduced by Ukraine to combat the use of such inhuman treatment by the authorities were identified. Changes in the opinion of the European Court of Human Rights on this issue and its significance for Ukraine are analyzed. The possibilities of application of the ECHR for evaluation of admissibility of evidence in criminal proceedings in Ukraine are examined. The patterns characterizing the legal positions of the ECHR in assessing the admissibility of evidence are discovered and singled out. Ukraine should take into account that the responsibilities of the state, in addition to refraining from the use of torture to obtain evidence, include the protection of people from these encroachments by third parties.

scholarly journals CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, PROTOCOL TO THE CONVENTION AND THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS AS A SOURCES OF SUFFRAGE IN UKRAINE

2020 ◽  
Keyword(s):  
Human Rights ◽  
Political Development ◽  
Electoral System ◽  
Case Law ◽  
The State ◽  
Free Expression ◽  
European Court ◽  
Legal Nature ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article is devoted to the study of such sources of electoral law in Ukraine as the Convention for the Protection of Human Rights and Fundamental Freedoms, the first Protocol to the Convention and the case-law of the European Court of Human Rights. The legal nature of these international sources of suffrage in Ukraine is considered. Attention is drawn to the peculiarities of the wording of the right to free election in Article 3 the first Protocol to the Convention. The peculiarities of the application of the above article by the European Court of Human Rights are disclosed. The importance the case-law of the European Court of Human Rights as a source of suffrage in Ukraine is emphasized. This assertion is justified by the fact that the rules of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols are of a general and abstract nature and are interpreted and filled with real meaning in judgments of the European Court of Human Rights, which are of precedent nature. A number of legal positions of the European Court of Human Rights concerning the obligation of the state to organize and hold democratic elections, enshrined in the specific decisions of this international judicial institution, have been analyzed. In the article were covered such legal positions as: the possibility of limiting the suffrage of citizens, provided that such conditions do not interfere with the free expression of the people's opinion on the election of the legislative body; evaluation of the electoral legislation in the light of the political development of the country, taking into account national characteristics; wide discretion of the state in the choice of the electoral system, which will ensure the free expression of the opinion of the people, etc. There are a number of unresolved issues regarding the application of the case-law of the European Court of Human Rights in judicial and administrative practice in Ukraine, one of which is the possible conflict between the case-law of the Court and the rules of Ukrainian law. It is proposed to resolve this conflict at the legislative level. The conclusions focus on the peculiarities of the legal nature of these sources of suffrage in Ukraine. KEY WORDS: sources of suffrage, Convention for the Protection of Human Rights and Fundamental Freedoms, case-law of the European Court of Human Rights, right to free elections.

scholarly journals Reflection of Decisions of the European Court of Human Rights on Impartiality and Independence of National Courts in Context of the Right to a Fair Trial

2021 ◽  
Vol 5 (1) ◽  
pp. 67-90
Author(s):  
Alla Demyda
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
National Courts ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Principles Of Justice ◽  
The Right

The article focuses on the principle of impartiality and independence of judiciary as a part of the right to a fair trial according to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, an account will be taken of the case law of the European Court of Human Rights in matters of applications from national judges. The article considers the reflection of the decision of the European Court of Human Rights on the amendment of national legislations and the amendment of the provisions of the national constitutions regarding the principles of justice.

scholarly journals PROTECTION OF PROPERTY RIGHTS IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

2020 ◽  
Vol 4 (6(75)) ◽  
pp. 52-59
Author(s):  
Taisa Tomlyak
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Case Law ◽  
The State ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Proportional Relationship ◽  
The Relationship ◽  
Broad Understanding

The article considers the legal positions of the European Court of Human Rights (hereinafter - Сourt). In particular, the decision of the Сourt in cases of legality of interference with property rights was examined in the light of the provisions of Protocol № 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter Protocol №1 to the Convention). Also, the article specifies the principles that, in the opinion of the Сourt, the state must adhere to when interfering in property rights. In addition, it is established that the concept of "property" within the meaning of Part 1 of Art. 1 of Protocol No. 1 to the Convention has an independent meaning. That is, this concept cannot depend on its legal classification in national law and cannot be limited to ownership of things. Also, we considered a broad understanding in the practice of the Сourt "interests of society" in the application of measures of deprivation of property rights and ensuring a proportional relationship between the goal and the means used. In addition, the relationship between Article 1 of Protocol No. 1 and other articles of the Convention is considered, as issues arising in connection with the use of one's "property" may also relate to other articles of the Convention. Some decisions of the Court of Human Rights and its interpretation of the concepts of "property", "property" and "property rights" are analyzed.

scholarly journals THE “JUSTICE INDEX” IS A STEP TOWARDS THE IMPLEMENTATION OF THE GLOBAL GOAL 16 OF THE U.N. AGENDA

2018 ◽  
Vol 5 (3) ◽  
pp. 64-85
Author(s):  
E. Alekseevskaya ◽  
L. Treskina
Keyword(s):  
Sustainable Development ◽  
Human Rights ◽  
Fair Trial ◽  
Access To Justice ◽  
Legal Proceedings ◽  
The Public ◽  
European Court ◽  
Indexing Method ◽  
Protection Of Human Rights ◽  
Global Goal

This paper proposes a method for measuring sustainable development as a means of the implementation of the Global Goal 16 of the United Nations Agenda. This method is the primary attempt to quantify the quality of the rules of the judiciary and access to a court in order to monitor sustainable development in the area of justice. In the recent years, the U.N. drew attention to the fact that qualitative changes should be evaluated through quantitative indicators.The authors’ methodology is based on the fair trial standard formulated by the European Court of Human Rights based on the interpretation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the public services standard of the Russian Federation. This indexing method helps to assess the current level of legal guarantees in the rules of legal proceedings and draft legislation, and to establish their compliance with the fair trial principles. Indexing the access to justice has another positive effect – it helps to monitor the local situations and every level of the judicial system.Putting this method into practice will encourage avoidance of the adoption of bills that might reduce the level of legal guarantees and will assist attempts to monitor its dynamics. It could promote the introduction of effective procedures and better access to court, ensure the improved accountability of all public justice institutions at all levels and support overall societal wellbeing.

scholarly journals ISSUES OF THE EXECUTION OF JUDGEMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS IN UKRAINE AND THEIR POSSIBLE SOLUTIONS

2020 ◽  
Vol 33 (20) ◽  
pp. 23-29
Author(s):  
R. O. Nepyipa
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
The State ◽  
State Budget ◽  
Public Authorities ◽  
Special Procedure ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

The article analyzes the problems of implementation of the decisions of the European Court of Human Rights by Ukraine. In this context, too, the key problems and peculiarities of the current state of implementation of Ukraine’s judgments of the European Court of Human Rights are highlighted. It is emphasized that the enforcement of judgments by Ukraine is an important guarantee of ensuring the right to a fair trial. However, the lack of proper enforcement is recognized by the European Court of Human Rights as a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is emphasized that the problematic issue in the implementation of ECHR decisions is that the state executor, as a representative of the public authority, receives a salary from the State Budget of Ukraine, but is obliged, according to executive documents, to act against his state. Thanks to the planned reform of the State Bailiffs’ Service of Ukraine, it is envisaged to create a private system of enforcement of court decisions, since a non-governmental institution would not be more effective in this case. The problem of determining the location of the collector by the ECtHR is considered. It is suggested that in order to find out the location (location) of the collector, in accordance with the ECtHR decision, a special procedure should be provided, a list of necessary actions to be taken by a state body. In particular, such actions may be sending requests to the last known place of work. It is emphasized that legal and political risks for Ukraine are that the violating state may be subject to various sanctions, such as deprivation of voting rights or suspension of membership, up to and including exclusion from the Council of Europe. It is proved that the source of inefficient work of the executive service should be sought, first of all, in imperfect legal regulation, numerous legislative restrictions, and insufficient state costs for the implementation of ECtHR decisions. The experience of Germany on the practice of implementing ECtHR decisions is considered and it is proposed to borrow the experience of foreign countries in the current situation. It is noted that an important step of Ukraine towards European statehood is to increase the level of national protection of citizens and to adopt a law that provides for the accountability of public authorities and their officials for inaction in the implementation of ECtHR decisions. Keywords: European Court of Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, judgment, enforcement, general measures.

scholarly journals Od predmeta Mccann do predmeta F.J.M.

2020 ◽  
Vol 41 (1) ◽  
pp. 113-132
Author(s):  
Gabrijela Mihelčić ◽  
Maša Marochini Zrinski ◽  
Renata Šantek
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Proportionality Test ◽  
The Right ◽  
Analyse Case

The authors discuss and analyse case law of the European Court of Human Rights regarding the right to respect for home under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and with respect the issue of proportionality. In the paper, the proportionality category was viewed as a criterion for securing protection and as a material precondition for deciding whether the State party's interference with the right to respect for home was proportionate. The cases in which the applicant's eviction occurred after national proceedings for the enforcement of mortgages were addressed. In this context, the genesis of the proportionality category was analysed, from the cases where the Court found it necessary to examine the proportionality to the cases where the Court did not consider the proportionality test necessary.

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