scholarly journals Legal interpretative acts of the European court of human rights

2021 ◽  
pp. 77-83
Author(s):  
V. Zavhorodnii
Keyword(s):  
Human Rights ◽  
Practical Significance ◽  
Council Of Europe ◽  
Scientific Methods ◽  
European Court ◽  
Legal Nature ◽  
General Scientific ◽  
First Time ◽  
Advisory Opinions ◽  
Research Analysis

Purpose. The purpose of the article is to define and implement the characteristics of the decisions of the European Court of Human Rights, which have the legal properties of classical interpretative legal acts. Methodology. The theoretical tools of the study were: universal epistemological principles of cognition, complex, dialectical, axiological approaches, general scientific and special scientific methods of cognition. In particular, the following methods of scientific research were used during the research: analysis, synthesis, induction, deduction, structural, systemic, technical-dogmatic. Results. As a result of the study it was established that the legal acts of the European Court of Human Rights, which have the legal nature of interpretative-legal are: 1) advisory opinions of the Strasbourg Court, adopted by the European Court of Human Rights in connection with requests from the Committee of Ministers of the Council of Europe or the higher courts of the States Parties to the Convention; 2) judgments of the Strasbourg Court, containing explanations of legal positions and / or individual prescriptions previously formulated by the Court of Europe, contained in the decisions adopted by the Strasbourg Court on the merits. Scientific novelty. For the first time, the paper substantiates the legal nature of those legal acts of the Court of the Council of Europe that have exclusively interpretive properties. Practical significance. The results of the study can be used in law enforcement activities of entities authorized to implement the decisions of the European Court of Human Rights in the national legal order of Ukraine.

CONCERNING TO THE LEGAL NATURE AND IMPORTANCE OF THE ADVISORY OPINIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

2017 ◽  
Author(s):  
Artem Ivanov ◽  
◽  
Eliza Shyhapova ◽  
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Primary Sources ◽  
Advisory Opinion ◽  
Council Of Europe ◽  
General Importance ◽  
European Court ◽  
Legal Nature ◽  
Protection Of Human Rights ◽  
Advisory Opinions

This article is devoted to clarify the significance of the advisory opinions of the European Court of Human Rights as a recently improved institution. Thus, according to Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, the highest judicial institutions of the High Contracting Party, as defined in accordance with Art. 10 may apply to the Court for advisory opinions on matters of principle concerning the interpretation or application of the rights and freedoms defined by the Convention or its protocols. Considering the fact that only two advisory opinions on the appeal of the member states of the Council of Europe have been published on the official website of the court, this topic is a new subject for research and requires a systematic study. Allowing states to seek advisory opinions was driven by the need to ease the burden on the European Court of Human Rights. However, given the novelty of the improved institute, this statement is still controversial. The article offers its own conclusions regarding the significance of the advisory opinions in the activities of the European Court, provides a view on the legal nature of this legal institution in the internal legal order of Ukraine. This was achieved by defining the essence of such a mechanism, analyzing primary sources from the official website of the court, statistical data on the functioning of the institution, and generalizing national legislation to determine the legal nature. Thus, although Ukraine has ratified Protocol No. 16, however, the legal status of such advisory opinions has not been determined. In this connection, it is proposed to amend a number of legislative acts, in particular, to article 17 of the Law of Ukraine "On the implementation and application of the practice of the European Court of Human Rights", which should be supplemented with the rule on the legal force of the advisory opinion of the European Court of Human Rights. According to the general importance of such an institution, it seems reasonable to hope for a decrease in the number of decisions that would contradict the practice of the European Court of Human Rights, and, accordingly, a decrease in the grounds for filing applications.

scholarly journals The International Legal Nature of the Interaction between the Judicial Authorities of the Member States of the Council of Europe and the European Court of Human Rights

2021 ◽  
pp. 155-164
Author(s):  
Anna PRYSIAZHNA
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
Council Of Europe ◽  
Judicial Cooperation ◽  
Theoretical Understanding ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Legal Nature

The current stage of development of international relations and international law is characterized by the active growth of interstate cooperation and the emergence of new more integrated forms of such cooperation. A special manifestation of this modern phenomenon is observed in the field of judicial cooperation. Moreover, the emergence in the modern world of international universal and regional courts and the gradual increase in their number, has become one of the prerequisites for a new form of international judicial cooperation — the interaction of national courts with international regional courts. In this regard, the greatest interest for the theoretical analysis of international legal regulation of judicial interaction is the study of the experience of such interaction in the European space, which operates the «oldest» international regional courts — the Court of Justice of the European Union, which was established in 1952 and was called the Court of Justice of t he European Coal and Steel Community and the European Court of Human Rights, established in 1959. The legal nature and forms of interaction of national courts of European states with the named international regional courts are of special interest for scientific analysis, which is explained both by considerable experience of judicial cooperation accumulated by them and novelty of legal forms and mechanisms of cooperation requiring theoretical understanding. Without exaggeration, the reopening of proceedings based on judgments of the European Court of Human Rights is one of the most effective, and often the only, measures to restore violated individual rights and improve the practice of national courts and ensure full and effective enforcement of ECHR judgments. The basis of cooperation between the courts of the member states of the Council of Europe and the ECHR is the provisions of the Convention, which makes the decision of the ECHR binding. The judicial authorities of the member states of the Council of Europe are obliged to apply the convention law of the Council of Europe, as well as the case law of the ECHR, which is the only source of cooperation between the courts of the member states of the Council of Europe and the European Court of Human Rights.

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 ФЛЕТ АНІМАЦІЯ В МОУШН-ДИЗАЙНІ ЯК СПОСІБ ВІЗУАЛІЗАЦІЇ ІНФОРМАЦІЇ

2019 ◽  
pp. 106-112
Author(s):  
Р. В. Хиневич ◽  
І. Б. Довженко ◽  
В. А. Родіна ◽  
О. Л. Яворський ◽  
О. В. Ковальчук
Keyword(s):  
Practical Significance ◽  
Design Decisions ◽  
Scientific Methods ◽  
Analysis And Synthesis ◽  
General Scientific ◽  
Graphic Image ◽  
First Time ◽  
Motion Design

Define the specifics of flat animation as an innovative means of visualizing information in the field of motion design. Methodology. General scientific methods of research are used: analysis and synthesis, systematization and generalization, for studying of flat animation and its specifics in motion design, determination of features of its design and composite decisions, formation of research conclusions. The method of comparative analysis of types of modern animation is applied. Results. The features of the use of flat animation in various fields of application are considered, compositional methods and tools that are used to implement a variety of design decisions are analyzed, specific graphic image methods are identified and the basic elements inherent in modern animation products are identified. Scientific novelty. The most effective methods of visualization of information in motion-design are determined, the role of flat animation in motion-design is shown, its means of expression and their influence on the readability of information are analyzed. Practical significance. Investigated and systematized the techniques and means of composite solutions flat animation for mobile applications. Features that distinguish flat animation from other animated products are defined. For the first time, a paper calendar with mobile interactivity has been developed and implemented. This opens up the possibility of creating innovative printing calendars.

El-Masri v. The Former Yugoslav Republic of Macedonia (Eur. Ct. H.R.)

2013 ◽  
Vol 52 (2) ◽  
pp. 558-622
Author(s):  
Christina M. Cerna
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Council Of Europe ◽  
Republic Of Macedonia ◽  
European Court ◽  
International Court ◽  
Yugoslav Republic ◽  
Grand Chamber ◽  
First Time ◽  
Modern War

On December 13, 2012, the Grand Chamber of the European Court of Human Rights (the Court) issued a final judgment in the case of El-Masri v. the former Yugoslav Republic of Macedonia. It found that Macedonia, as a State party to the European Convention on Human Rights (the Convention), was responsible for torturing El-Masri while he was in the former Yugoslav Republic of Macedonia (FYRM) The El-Masri judgment is the first time in which an international court has ruled on the U.S. practice of secret forced renditions. It follows the rationale of Soering v. United Kingdom, that a State can be held responsible for facilitating a violation by a State outside the Council of Europe, and places it in a modern war on terror context.

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.

scholarly journals CURRENT ISSUES OF LEGAL REGULATION OF SURROGATE MATERNITY AND ENFORCEMENT OF RIGHTS OF SURROGATE MOTHERS

2020 ◽  
Vol 73 (12) ◽  
pp. 2871-2876
Author(s):  
Oksana P. Kuchynska ◽  
Oksana Yu. Kashyntseva ◽  
Oleh V. Shchyhol
Keyword(s):  
Legal Regulation ◽  
Surrogate Mothers ◽  
Scientific Methods ◽  
Existing Problems ◽  
European Court ◽  
System Method ◽  
Legal Nature ◽  
Induction System ◽  
General Scientific ◽  
The Eu

The aim: To propose effective jurisdictional methods in the field of legal regulation of surrogacy and ensuring the rights of surrogate mothers in the EU. Materials and methods: The research is based on international documents in the field of surrogacy, Ukrainian legislation, decisions of the European Court of Human Rights, scientists' works in the field of legal regulation of surrogacy, etc. General scientific methods (synthesis, induction, system method) and specific scientific methods (comparative legal and special legal methods) are used. Conclusions: The study found that today some issues related to the surrogacy legal nature, conditions and procedure for its implementation remain out of the EU's attention. It is established that the adoption of a separate regional (within the EU) legal act will fully solve the existing problems, ensuring the effectiveness and transparency of surrogacy, will unify the medical tourism's mechanisms in the field of surrogacy. The authors have developed and proposed to enshrine the main provisions on surrogacy in the EU Regulation / Directive.

Council of Europe

2018 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Committee ◽  
European Court ◽  
Human Rights Treaties ◽  
Fundamental Freedoms ◽  
Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

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