scholarly journals Theoretical Tools for Studying the Phenomenon of the Influence of the European Court of Human Rights Practice on Legal Activities in Ukraine

2019 ◽  
Vol 1 (85) ◽  
pp. 20-30
Author(s):  
В. А. Завгородній
Keyword(s):  
Human Rights ◽  
Scientific Intelligence ◽  
Legal Regulation ◽  
Practice Research ◽  
Human Rights Practice ◽  
European Court ◽  
Research Problems ◽  
General Scientific ◽  
The Subject ◽  
Selection Of

In this article, the existing approaches to general theoretical jurisprudence have been studied to understand the concept of «methodology» and its structure, on the basis of which the methodology of the European Court of Human Rights practice research and its influence on legal activity in Ukraine is determined. In the opinion of the owner, the most suitable for solving our research tasks is an approach in which the methodology of legal knowledge includes methodological tools and other designs, logically distributed by the conceptual and instrumental levels.As a result, the study found that the theoretical toolkit for the study of the phenomenon of influencing the practice of the European Court of Human Rights on legal activity in Ukraine are: a) universal epistemological principles (comprehensiveness, completeness, historicism, objectivity), which are the imperative requirements that guided the researcher; b) human-centered and sociological methodological paradigms that are interconnected, do not contradict and complement each other, as well as the provisions of the theories of legal influence, legal regulation, legal practice, law-making, legal interpretation, enforcement, legal relations, which became the basis for the formulation of research problems; c) anthropological, complex, dialectical, synergetic, axiological approaches, by which the strategy of scientific intelligence is determined, its specific perspective, selection of investigated facts and interpretation of research results are carried out; d) general scientific and special methods of cognition that ensure the receipt of true scientifically sound knowledge about the subject of research.

scholarly journals Legal Regulation of Waste Management: Analysis, Problems and Directions of Solution

2020 ◽  
Keyword(s):  
Human Rights ◽  
Waste Management ◽  
Environmental Safety ◽  
Legal Regulation ◽  
Empirical Method ◽  
The European Union ◽  
Current Case ◽  
European Court ◽  
Comparison Results ◽  
General Scientific

The development of measures to reduce waste and regulate waste management is an important issue in the field of environmental safety and environmental protection. Purpose. Analysis of legal regulation of waste management, identification of the main problems and the formation of modern solutions to problems related to waste, based on international experience, current case law of the European Court of Human Rights. Methods. Theoretical and general scientific (analysis, synthesis, systematization), empirical method (method of comparison). Results. Based on the results of the study of legal regulation of waste management in Ukraine, the main problems are identified and solutions are proposed based on the analysis of the decision of the European Court of Human Rights and by studying the experience of European countries. It was found that Ukraine has chosen the path of standardization of waste issues on the basis of established norms of the European Union, in particular the Waste Directive and a number of other regulations in this area. Conclusions. In order to regulate the field of waste management in Ukraine, it is necessary to ensure the gradual and effective implementation of measures enshrined in the National Waste Management Strategy of Ukraine until 2030, to systematize a number of legal acts of Ukraine on waste management and begin their implementation in practice.

scholarly journals On The Role of Modern Doctrines on Human Rights (International Legal Examination)

2019 ◽  
Vol 9 (1) ◽  
pp. 5155-5158
Keyword(s):  
Human Rights ◽  
Legal Regulation ◽  
Criminal Court ◽  
Legal Analysis ◽  
The European Union ◽  
European Court ◽  
The Subject ◽  
Rational Consideration ◽  
Human Rights Standards

The modern doctrines on human rights, which are proposed to be considered in the context of their implementation in international legal practice, are the subject of theoretical and legal analysis in the paper. It is noted that human rights have come a long way in their formation, design and subsequent genesis, and they have finally formed by the end of the last century, and it seems that now all the necessary conditions have been created for their philosophical, legal, axiological analysis and relevant rational consideration of human rights. The advantages of international law in the field of human rights are listed; namely, it is noted that international human rights standards are universal in nature and are binding based on which states are obliged to ensure a minimum standard of those rights and freedoms that are enshrined in international acts, There are listed in the paper advantages of international legal regulation regarding human rights and freedoms, such as the supranational, mandatory and imperative nature of international acts; guarantees of protection and the possibility of restoring violated rights and freedoms of citizens; a man-centred approach in resolving disputes and conflicts arising in international practice. The role of international bodies such as the International Criminal Court, the International Tribunal for the Law of the Sea, the Court of the European Union, the European Court of Human Rights, the International Tribunals for Rwanda and the Former Yugoslavia, and the Special Court for Sierra Leone, is emphasized. Particular attention is paid to the principle of presumption of innocence, which has fundamental and quintessential characteristics in the field of human rights.

Activism identification in law enforcement approaches of judges of the European Court of Human Rights

2020 ◽  
Vol 6 (1) ◽  
pp. 129-139
Author(s):  
Andrew Yu. Klyuchnikov
Keyword(s):  
Human Rights ◽  
International Justice ◽  
Judicial Practice ◽  
Legal Method ◽  
European Court ◽  
Traditional Research ◽  
Protection Of Human Rights ◽  
General Scientific ◽  
The Subject ◽  
The Rich

The European Court of Human Rights (ECHR) is a unique institution not only in Europe, but in the whole world; it is by far the most effective among all the international human rights courts. Since its foundationing in 1959, it has dealt a huge number of decisions, becoming the most active participant in the international justice. The success of individual appeals, on which the entire Convention system is based, has inevitably led to the involvement of new areas of human rights in the subject of the court’s research, and has extended it to a new range of subjects. The Court’s systematic expansion of the area (borders) of the protection of human rights and fundamental freedoms, and the involvement of new areas in it due to the progressive nature of the practice, is a positive quality. The rich and diverse Strasbourg practice has changed the political and legal landscape of Europe. This has led to the ECHR becoming a victim of its own success, in some cases invading the sovereign powers of states and affecting their constitutional identity. Among practitioners and researchers of international justice issues, the voices about excessive activism of the Court started appearing more often. The author of this article studies the factors that contribute to the manifestation of activist positions by judges of the ECHR, identifies forms of activism, and distinguishes them from judicial passivism. The material for the article includes the work of prominent researchers of international justice problems, judges of the ECHR, Russian authors, and the judicial practice of this supranational court. The author uses traditional research methods — general scientific and special, with an emphasis on the comparative legal method. The subject of the study is the author’s scientific concepts that reveal judicial activism through the case-law of the ECHR. The relevance of the work lies in the problem of using the practice of supranational courts in national justice, and the effective application of the developed standards.

scholarly journals Jurisprudence of the European court of human rights in the choice of precautionary measures in criminal proceedings: legal realities and perspectives

2020 ◽  
Vol 38 (Especial II) ◽  
pp. 443-458
Author(s):  
Svitlana Romantsova ◽  
Igor Zinkovskyy ◽  
Ruslan Komisarchuk ◽  
Olha Balatska ◽  
Lesia Strelbitska
Keyword(s):  
Human Rights ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Legal Method ◽  
European Court ◽  
The Subject ◽  
Precautionary Measures ◽  
The Right ◽  
Method Analysis ◽  
Selection Of

The article deals with the problems of application of the decisions of the European Court of Human Rights (ECHR) in the selection of precautionary measures in criminal cases in accordance with Ukrainian law. Since the procedural legislation of Ukraine is currently not perfect in the framework of the establishment and regulation of the application of precautionary measures, the decisions of the ECHR serve as an indispensable regulator of this issue. The objective of the work is to study the peculiarities of the application of the jurisprudence of the European Court of Human Rights in the selection of precautionary measures in criminal proceedings. The subject of the investigation is the jurisprudence of the ECHR in the context of the choice of precautionary measures in the criminal process. The research methodology included and combined the dialectical method, logical and legal method, analysis, synthesis. By way of conclusion, the study shows that the practice of the ECHR is mandatory to take into account not only the courts but also the investigators and prosecutors, who legally have the right to request the court to apply such precautionary measures.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

Lachiri v Belgium and Bans on Wearing Islamic Dress in the Courtroom: An Emerging Trend

2019 ◽  
Vol 21 (1) ◽  
pp. 48-53
Author(s):  
Kaushik Paul
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Public Spaces ◽  
Religious Liberty ◽  
Recent Case ◽  
European Convention ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Islamic Dress

In recent years, the wearing of Islamic dress in public spaces and elsewhere has generated widespread controversy all over Europe. The wearing of the hijab and other Islamic veils has been the subject of adjudication before the European Court of Human Rights (ECtHR) on many occasions. The most recent case before the ECtHR as to the prohibition on wearing the hijab is Lachiri v Belgium. In this case, the ECtHR held that a prohibition on wearing the hijab in the courtroom constitutes an infringement of Article 9 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of religion or belief. From the perspective of religious freedom, the ruling of the Strasbourg Court in Lachiri is very significant for many reasons. The purpose of this comment is critically to analyse the ECtHR's decision in Lachiri from the standpoint of religious liberty.

Foreign experience in constitutional and legal regulation of restrictions on human rights in conditions of emergency and martial law

2021 ◽  
Vol 28 (2) ◽  
pp. 55-65
Author(s):  
Oleksandr M. Bukhanevych ◽  
Serhii O. Kuznichenko ◽  
Anastasiia M. Mernyk
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Well Being ◽  
Legal Regulation ◽  
Martial Law ◽  
Foreign Experience ◽  
Foreign Countries ◽  
General Scientific ◽  
The Individual ◽  
Exhaustive List

The study investigates the foreign experience of constitutional and legal regulation of restrictions on human rights in conditions of emergency and martial law in Macedonia, Armenia, Belarus, Moldova, Georgia, Latvia, Lithuania, Albania, Azerbaijan, which is relevantin modern conditions, based on the presence of local military conflicts, emergencies, or the possibility of their existence in many countries of the world. The purpose of this study was to analyse the text and content of the constitutions of foreign countries to clarify and explain the groundsfor restricting human and civil rights and freedoms in conditions of emergency and martial law. To achieve this purpose, the study employed a system of methods of scientific cognition, namely general scientific (analysis, synthesis), particular (comparative, quantitative and qualitative analysis, approximation), as well as special legal (formal legal, comparative legal) methods. The practical value of the study lies in the identification of four prevailing trends in the constitutions of foreign states to the procedure for determining the scope of restrictions on human rights under special regimes: 1) consolidation of an exhaustive list of rights and freedoms in the constitutions, which cannot be restricted during the period of emergency and martial law; 2) consolidation of an exhaustive list of rights and freedoms in the constitution, which can be restricted to protect human rights, the democratic structure of the state, public safety, the well-being of the population and morals; 3) combining the first two options for consolidating restrictions in the text of the constitutions; 4) consolidation of the possibility of limiting the rights and freedoms of the individual in the texts of constitutions by state authorities under special legal regimes in the interests of national security without specifying partiular rights and freedoms that may (or may not) be restricted

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