Гармонізація діяльності національних судів з практикою ЄСПЛ в контексті захисту медичних прав

Abstract

The authors of the article have analyzed the peculiarities of human rights protection in the health care sector by national courts; in particular, they have focused on the case-law of the Supreme Court of Ukraine. The authors have indicated legal requirements for taking into account the recognized international and legal requirements of the legislation, as well as the best European experience while considering and resolving disputes. The main grounds for appealing the decisions of national courts to the European Court of Human Rights have been determined. It has been emphasized that the basis for appealing recourse to the ECHR can only be the violation of the rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols; and since the right to health care is not contained in these acts, human rights in the health care sector are protected indirectly through other rights and freedoms (right to life, right to liberty and personal integrity, right to respect for private and family life, right to a fair trial, etc.). It has been substantiated that the relevant solution to the contradictions of national and European legal enforcement is compensation for non-pecuniary damage in medical matters, protection of the rights of mentally ill persons in the health care sector, as well as ensuring the right of persons deprived of liberty, medical care. It has been established that the main areas for the harmonization of national courts’ activities with the case-law of the ECHR in the context of protecting medical rights should be: ensuring the recognition and enforcement of foreign courts’ decisions by Ukraine; the possibility of reviewing the case by national courts in case if an international court has proved the violation of the provisions of the Convention; balance and consistency of national legislation with the provisions of the Convention in order to avoid violations, the significance of the decisions of the ECHR and focus on them within legal enforcement practice.