Prohibition of discrimination: concepts, features and obligations of the state according to the Convention for the protection of human rights and fundamental freedoms

Problem setting. Because of the transformational processes in socio-political life, the problems of ensuring equal treatment of equals and different – to persons who have other, characteristic of certain groups of people, characteristics are becoming increasingly important. Analysis of resent researches and publication. Such scholars as O. Vasylchenko, O. Vashanova, D. Hudyma, N. Dryomina-Volok, B. Nedelek, N. Onishchenko, O. Pankevych devoted their works to the issue of the principles of equality and non-discrimination, in particular in the decisions of the European Court of Human Rights. Target of research. The purpose of this work is to carry out a comparative legal analysis of the scope of the two concepts, namely the “prohibition of discrimination” provided for in Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the “General Prohibition of Discrimination”, which is enshrined in Art. 1 of Protocol № 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. An additional purpose of this paper is to present ways to overcome the problem of discrimination in Ukrainian society and the problems of legal regulation of discrimination prevention. Article’s main body. Publication is devoted to the analysis of the prohibition of discrimination under Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 1 of Protocol № 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms. International legal acts, which enshrine the provisions on the prohibition of discrimination, have been studied. A comparative legal analysis of the “prohibition of discrimination” and the “general prohibition of discrimination” was made. The author also draws attention to the problems of applying the provisions on non-discrimination in practice. The publication provides a thorough analysis of the case law of the European Court of Human Rights. The characteristic features inherent in the concept of discrimination are indicated in the decisions of the European Court of Human Rights. Positive, negative and procedural responsibilities for prohibiting and combating discrimination are disclosed. In this article investigated the positive duty of the state as ensuring “application of different law in different circumstances”. Regarding negative obligations, the very construction of the prohibition of discrimination implies that states refrain from any unjustified discriminatory treatment in their legislative and law enforcement activities. As for procedural obligations, states should effectively investigate such cases in the event of discrimination. Conclusions and prospects for the development. The construction of the prohibition of discrimination presupposes a certain set of characteristics characteristic only of it. The scope of the general prohibition of discrimination has been significantly increased since Protocol No. 12 was opened for signature by the member states of the Council of Europe. Given that the ECHR is a “living document”, the indicative list of protected features of non-discrimination is being expanded by the case law of the ECtHR. Unfortunately, the general level of tolerance, including that of public authorities, leaves much to be desired.

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

The Journal of V. N. Karazin Kharkiv National University, Series "Law" ◽

10.26565/2075-1834-2020-29-13 ◽

2020 ◽

Keyword(s):

Human Rights ◽

Political Development ◽

Electoral System ◽

Case Law ◽

The State ◽

Free Expression ◽

European Court ◽

Legal Nature ◽

Fundamental Freedoms ◽

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.

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

EurasianUnionScientists ◽

10.31618/esu.2413-9335.2020.4.75.850 ◽

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 ◽

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.

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

Legal horizons ◽

10.21272/legalhorizons.2020.i20.p23 ◽

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 ◽

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.

Od predmeta Mccann do predmeta F.J.M.

Zbornik Pravnog fakulteta Sveučilišta u Rijeci ◽

10.30925/zpfsr.41.1.5 ◽

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 ◽

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.

The right to appeal to the European Court of Human Rights

10.29039/01850-7 ◽

2020 ◽

Author(s):

Yuliya Samovich

Keyword(s):

Human Rights ◽

Case Law ◽

Legal Regulation ◽

The European Union ◽

Educational Organizations ◽

European Court ◽

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”.

Application of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms in the case law of the European Court of Human Rights

Entrepreneurship, Economy and Law ◽

10.32849/2663-5313/2021.4.43 ◽

2021 ◽

pp. 276-282

Author(s):

Yevhen Bilousov ◽

Maryna Kakhnova

Keyword(s):

Human Rights ◽

Case Law ◽

European Court ◽

Fundamental Freedoms ◽

Supervision of the execution of The European Court of Human Rights’ case law

The Journal of the National Institute of Justice ◽

10.52277/1857-2405.2021.2(57).05 ◽

2021 ◽

pp. 33-36

Author(s):

Corina Siman ◽

Keyword(s):

Human Rights ◽

Case Law ◽

Fundamental Rights ◽

The Political ◽

Council Of Europe ◽

European Court ◽

Fundamental Freedoms ◽

European System ◽

Executive Body

The Convention for the Protection of Human Rights and Fundamental Freedoms empowers the decision-making and executive body of the Council of Europe, id est the Committee of Ministers, to supervise the execution of the European Court of Human Rights’ case law. The mechanism thus established possesses a certain specificity, which is inherent to the European system of protection of fundamental rights. Therefore, both the political nature of the Committee of Ministers and the elements that form the process of monitoring the implementation of the content of the Strasbourg Court’s judgments and decisions are of interest.

Torture as a ground for inadmissibility of evidence

Economics. Finances. Law ◽

10.37634/efp.2021.4(2).6 ◽

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 ◽

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.

The Reopening of Proceedings After the Judgment of the ECtHR in Cases Against Lithuania

Teisė ◽

10.15388/teise.2019.113.2 ◽

2019 ◽

Vol 113 ◽

pp. 27-49

Author(s):

Nika Bruskina

Keyword(s):

Human Rights ◽

Case Law ◽

European Court ◽

Fundamental Freedoms ◽

Administrative Courts ◽

Administrative Proceedings

The author of this article examines the case law of the Lithuanian courts of general jurisdiction and administrative courts related to the reopening of domestic criminal, civil, or administrative proceedings when the European Court of Human Rights (hereinafter – the ECtHR or the Court) finds a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms and/or Protocols in the cases against Lithuania.

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

Bratislava Law Review ◽

10.46282/blr.2021.5.1.228 ◽

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 ◽

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.