scholarly journals Convention for the Protection of Human Rights and Fundamental Freedoms as a source of the constitutional law of Ukraine

2021 ◽  
Vol 1 (12) ◽  
pp. 7-18
Author(s):  
Rebkalo M.M. ◽  
◽  
Oliinyk V.S. ◽  
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Constitutional Law ◽  
European Convention ◽  
Constitutional Court ◽  
Council Of Europe ◽  
Martial Law ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

In the recent period of Ukrainian history, scholars pay attention to the discussion of the relationship between Ukrainian constitutional law and the Convention for the Protection of Human Rights and Fundamental Freedoms and the place of rulings and decisions of the European Court of Human Rights in the legal system of Ukraine. The analysis of the provisions of the European Convention on Human Rights and current Ukrainian legislation is made in the article. It is made in order to determine the impact of this act of the Council of Europe on the constitutional law of Ukraine. It is noted that the Convention plays an important role in the process of protection of human rights and freedoms in Ukraine and has an impact on the implementation of the rule of law, which relate to individual’s constitutional status. It is noted that the European Convention significantly increases the level of the effectiveness of constitutional human rights legislation. The role of the European Convention for the Protection of Human Rights and the European Court of Human Rights in the formation and activity of the Constitutional Court of Ukraine has been determined. The thesis that within the ratio of the Convention and Ukrainian law, the supremacy of the latter within the national legal system does not eliminate the need to comply with international obligations is substantiated in the article. The grounds for restricting human and civil rights and freedoms in accordance with the requirements of the European Convention for the Protection of Human Rights and the constitutional legislation of Ukraine are considered in the article. In order to ensure national security, the restriction of human and civil rights and freedoms in a state of martial law and emergency is analyzed. By introducing martial law and a state of emergency, it is possible to concentrate temporarily all the levers of control over the individual’s status by coercive means within the framework of official power. The conclusion that the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights have had a significant impact on the formation and development of human and civil rights and freedoms as basic, value priorities of the constitutional law of Ukraine is substantiated in the article. Key words: constitutional law, sources of law, Council of Europe, Constitution of Ukraine, Constitutional Court of Ukraine, Convention for the Protection of Human Rights and Fundamental Freedoms, European Court of Human Rights.

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».

scholarly journals La Cour européenne des droits de l’homme

2005 ◽  
Vol 25 (4) ◽  
pp. 873-933
Author(s):  
Marc-André Eissen
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Council Of Europe ◽  
Canadian Charter ◽  
The Past ◽  
European Court ◽  
Fundamental Freedoms ◽  
The Status ◽  
Protection Of Human Rights

The European Convention for the Protection of Human Rights and Fundamental Freedoms came into force on September 1953. In 1959, the European Court of Human Rights began its work which is to apply the Convention to particular cases. Since then, it has delivered 94 judgments. For Canadian Lawyers, since the Canadian Charter of Rights and Freedoms has come into force, the European Court and its decisions are of particular signifiance. The following article concerns the Court itself, especially the status of its judges. It also concerns the functions, powers and procedures of the Court and lastly relates the spirit with which the Convention has been applied to the National Laws of the Members of the Council of Europe for the past 25 years.

scholarly journals Interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding

2020 ◽  
pp. 361-365
Author(s):  
Ruslana Liashenko ◽  
Myroslav Dobrovinsky
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Western Europe ◽  
Case Law ◽  
European Convention ◽  
Past Century ◽  
Court System ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article presents the results of theoretical and practical research of the interpretation of the European Convention for the Protectionof Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding.On July 17, 1997, Verkhovna Rada of Ukraine ratified the European Convention for the Protection of Human Rights and FundamentalFreedoms of 1950 (hereinafter – the Convention), which was the initial stage in the formation and development of Ukrainianlaw and legal science in general. From that moment, a new stage began – the introduction of legal practice and legal values of Europeinto Ukrainian law.The Convention for the Protection of Human Rights and Fundamental Freedoms, as a complex mechanism has a direct effectwithin the jurisdiction of the Ukrainian court system, the principles of interpretation of the Convention applied by the European Courtof Human Rights are valuable and special for judges in Ukraine. One of the main methods of interpreting the Convention is the principleof judicial precedent. Judicial case law is an important part of the legal system of common law states, and the increase in the boundariesof judicial precedent has been observed in Western Europe over the past century. The case law of the European Court of Human Rightsis an additional factor for the official recognition of judicial precedent as a source of law in the protection of human rights, which willhelp strengthen the independence of the judiciary in Ukraine. Nowadays, the use of the Convention for the Protection of Human Rights and Fundamental Freedoms in Ukraine makes it possibleto replace the prevailing positivist views on law, apply the latest principles of interpretation of human and civil rights, and developthe constitutional jurisprudence of fundamental human rights.The Convention opens a new horizon of tasks in the development of democracy in Ukraine, with the basic principles of whichvarious legal acts of the country must be monitored for compliance with fundamental human rights and freedoms.Through the interpretation and use of the Convention, our state has begun a rapid process of moving away from the positivistunderstanding of law, which has resulted in the emergence of the necessary for the further development of pluralism of legal understandingof law.

European convention on human rights in the mechanism of implementation of the main constitutional obligation of Ukraine

2018 ◽  
pp. 47-53
Author(s):  
N. Shcherbyuk ◽  
S. Moroz
Keyword(s):  
Human Rights ◽  
Practical Significance ◽  
European Convention ◽  
Council Of Europe ◽  
World Community ◽  
Slow Pace ◽  
European Court ◽  
Fundamental Freedoms ◽  
Analysis And Synthesis ◽  
Protection Of Human Rights

After gaining independence, Ukraine has chosen a European democratic model for the formation of public and public life. A large number of appeals of citizens of Ukraine to the European Court of Human Rights testify to the effectiveness of this European institution. Therefore, the purpose of the article is to study the significance of the European Convention for the Protection of Human Rights and Fundamental Freedoms for both the world community and for Ukraine in particular, as well as determining the factors that influence the slow pace of implementation of its provisions. Method. The method includes a detailed comprehensive analysis and synthesis of available scientific and theoretical material on selected topics. Scientific novelty. On the basis of this, grounded generalizations and recommendations for disclosing the essence of the investigated aspects of the protection of human rights and freedoms in Ukraine are made. Results. The article establishes that the adoption of the European Convention on the Protection of Human Rights and Fundamental Freedoms has an epoch-making significance for the whole world community as well as for Ukraine in particular. Its ratification in our country, in essence, has shifted from the place the process of transition from declarative consolidation of human rights and freedoms in the legislation to the introduction of effective mechanisms that would give a real opportunity to realize and protect them if necessary. The driving force behind this process is the European Court of Human Rights, in which Ukrainian citizens can claim Ukraine. And as practice shows, this process is quite active. In order to improve its image in the field of protection of rights and fundamental freedoms Ukraine needs to eliminate as much as possible the reasons that affect the non-enforcement of ECHR judgments and to take into account the recommendations made by the Council of Europe in this area. Practical significance. The results of the study will contribute to correcting the situation towards the real fulfillment by Ukraine of its primary duty, as provided for in Part 2 of this article. 3 of the Constitution of Ukraine.

scholarly journals Interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding

2020 ◽  
pp. 361-365
Author(s):  
Ruslana Liashenko ◽  
Myroslav Dobrovinsky
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Western Europe ◽  
Case Law ◽  
European Convention ◽  
Past Century ◽  
Court System ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The article presents the results of theoretical and practical research of the interpretation of the European Convention for the Protectionof Human Rights and Fundamental Freedoms in the light of modern concepts of legal understanding.On July 17, 1997, Verkhovna Rada of Ukraine ratified the European Convention for the Protection of Human Rights and FundamentalFreedoms of 1950 (hereinafter – the Convention), which was the initial stage in the formation and development of Ukrainianlaw and legal science in general. From that moment, a new stage began – the introduction of legal practice and legal values of Europeinto Ukrainian law.The Convention for the Protection of Human Rights and Fundamental Freedoms, as a complex mechanism has a direct effectwithin the jurisdiction of the Ukrainian court system, the principles of interpretation of the Convention applied by the European Courtof Human Rights are valuable and special for judges in Ukraine. One of the main methods of interpreting the Convention is the principleof judicial precedent. Judicial case law is an important part of the legal system of common law states, and the increase in the boundariesof judicial precedent has been observed in Western Europe over the past century. The case law of the European Court of Human Rightsis an additional factor for the official recognition of judicial precedent as a source of law in the protection of human rights, which willhelp strengthen the independence of the judiciary in Ukraine. Nowadays, the use of the Convention for the Protection of Human Rights and Fundamental Freedoms in Ukraine makes it possibleto replace the prevailing positivist views on law, apply the latest principles of interpretation of human and civil rights, and developthe constitutional jurisprudence of fundamental human rights.The Convention opens a new horizon of tasks in the development of democracy in Ukraine, with the basic principles of whichvarious legal acts of the country must be monitored for compliance with fundamental human rights and freedoms.Through the interpretation and use of the Convention, our state has begun a rapid process of moving away from the positivistunderstanding of law, which has resulted in the emergence of the necessary for the further development of pluralism of legal understandingof law.

scholarly journals The environmental right in the system of the Convention for the Protection of Human Rights and Fundamental Freedoms – selected aspects

2020 ◽  
Vol 31 (4) ◽  
pp. 1-7
Author(s):  
Anna Dąbrowska
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Council Of Europe ◽  
Environmental Rights ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
A Charge ◽  
The Right

Abstract This paper aims to discuss the place of environmental right in the system of the 1950 European Convention – a fundamental Council of Europe treaty on protection of human rights. Interestingly, it does not explicitly guarantee the environmental right, it needs to be determined; therefore, if individuals can cite violations of this right in their complaints to the European Court of Human Rights – the authority guarding obedience to the European Convention. Analysis of the Strasbourg decisions implies the environmental right can be applied to highly diverse situations. In practice, complainants cite its infringements in connection with violations of the right to private and family life as incorporated in Article 8 of the European Convention. This does not mean, however, every time a complainant cites Article 8 of the European Convention to accuse a state of breaching their environmental rights, the European Court is going to accept such a charge.

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.

scholarly journals The environmental right in the system of the Convention for the Protection of Human Rights and Fundamental Freedoms – selected aspects

2020 ◽  
Vol 31 (4) ◽  
pp. 1-7
Author(s):  
Anna Dąbrowska
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Council Of Europe ◽  
Environmental Rights ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
A Charge ◽  
The Right

Abstract This paper aims to discuss the place of environmental right in the system of the 1950 European Convention – a fundamental Council of Europe treaty on protection of human rights. Interestingly, it does not explicitly guarantee the environmental right, it needs to be determined; therefore, if individuals can cite violations of this right in their complaints to the European Court of Human Rights – the authority guarding obedience to the European Convention. Analysis of the Strasbourg decisions implies the environmental right can be applied to highly diverse situations. In practice, complainants cite its infringements in connection with violations of the right to private and family life as incorporated in Article 8 of the European Convention. This does not mean, however, every time a complainant cites Article 8 of the European Convention to accuse a state of breaching their environmental rights, the European Court is going to accept such a charge.

scholarly journals SOME PROBLEMS OF THE RIGHT TO FAIR TRIAL IN THE DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

2020 ◽  
Author(s):  
E. Rozhina ◽  
T. Reshetneva
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Public Law ◽  
The Body ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is applicable to any dispute between people in the field of civil law, however, the supervisory bodies of the Council of Europe had to resolve many complex issues arising from the application of this article in the field of public law, when any disciplinary the body was empowered by law to take actions affecting the rights or interests of individuals. To a large extent, the Court's case-law is developed in just such cases.

scholarly journals DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS AS THE SOURCE OF THE CONSTITUTIONAL LAW OF UKRAINE

2019 ◽  
pp. 19-23
Author(s):  
P. M. Synytsyn
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Complex Structure ◽  
Case Law ◽  
European Convention ◽  
Constitutional Court ◽  
Public Authorities ◽  
European Court ◽  
Protection Of Human Rights

The article has been devoted to the analysis of the nature of the decisions of the European Court of Human Rights as a source of constitutional law of Ukraine. The nature of the judgments of the European Court of Human Rights has been characterized depending on the following factors: state legal system, constitutional approach to the relation between national and international law, the level of bindingness of decisions of the European Court of Human Rights for public authorities. The author has concluded on the duality of nature the decisions of the European Court of Human Rights, namely that, the author considers that the decisions of the European Court of Human Rights have a complicated, complex structure, combining the properties of both a right-interpreting act and a judicial precedent. According to the author, the decisions of the European Court of Human Rights are intended not only to resolve the cases under trial, but also to specify and interpret the rules of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has been established that the current Ukrainian legislation, establishing the primacy of the rule of law before the law, provides for the obligation of the judicial authorities to apply the decisions of the European Court of Human Rights as a source of law and at the same time the duty of the state to enforce the decisions of the European Court of Human Rights in cases where Ukraine is the defendant. In addition, as the case law of the European Court of Human Rights shows, the judiciary itself emphasizes in its decisions the interpretative nature and the binding nature of all its decisions to be taken into account by all States parties. The Constitutional Court of Ukraine constantly uses the decisions of the European Court of Human Rights to form its own legal positions, after which they actually become a substantive element of the motivating part of the decision of the Constitutional Court of Ukraine. It has been concluded that regardless of whether or not the decision of the European Court of Human Rights has been ruled on Ukraine, it is a source of constitutional law in Ukraine.

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