Analiza izabrane sudske prakse Arbitražnog suda HNS-a u postupcima raskida ugovora o radu/igranju

The article explores the main problems of the application by the national courts of the case law of the European Court of Human Rights as a source of law. Analyzing the rules of the law and examining the views of the Supreme Court have highlighted the problematic issues of the obligation to apply the case law of the European Court of Human Rights to national courts as a source of law. The researchers' positions on the obligation of national courts to apply the case law of the European Court of Human Rights in cases against other states are examined and the importance of the application of the case law of the European Court of Human Rights is highlighted. Analyzing the views of scholars and experts, we have proposed ways to address the issues of the binding application of the case law of the European Court of Human Rights by reviewing the plenary sessions of high courts. The problems of the application of the case law of the European Court of Human Rights by national courts, such as the selective application of the case law of the Court, references to general principles and interpretations, ignoring the conditions of their application, absolutization of the binding position of the Court, application of the decisions of the Court by analogy, reference to the practice Court in the presence of clear and consistent provisions of national law, etc. The following ways of solving these problems are proposed: 1) revising the concept and content of the Law of Ukraine "On the implementation of decisions and application of the practice of the European Court of Human Rights" and amending the legislation in order to bring it in line with the provisions of the new procedural legislation and modern ideas of theorists and practitioners about the legal nature of decisions The European Court of Human Rights; 2) preparing a resolution of the Plenum of the Supreme Court on the application of the Convention and the case-law of the Court, which should be based on a thorough analysis of the shortcomings and peculiarities of the case-law of the national courts. The problematic issues of the application of the case law of the European Court of Human Rights in the absence of official translations of the Court's decisions are examined. Analyzing the views of scholars and experts, we have proposed ways to solve these problems by creating a single electronic database that will contain official translations of Court decisions in the Ukrainian language that will ensure their accessibility and dissemination.

The article discusses the impact of the European Convention on Human Rights (‘the Convention’)  and the  case law of the European Court of Human Rights on Estonian law. It gives historical background on the ratification of the Convention and its protocols by Estonia and describes the status of the Convention in the Estonian legal order. It then shows in more detail the impact of the case law of the Strasbourg Court on Estonia’s legislature, executive power, and judiciary and examines the case law pertaining in particular to the historical past, deprivation of liberty, prison conditions, fair trial and length of proceedings, retroactivity, and lack of foreseeability of criminal law, along with the case law on pluralism and civil rights, especially freedom of expression. In addition, the article focuses on the important issue of reopening of a case on national level once the European Court of Human Rights has found a violation and looks at the implementation of judgements of that court by Estonia in general. Additional remarks are made on the Supreme Court of Estonia’s application of the Convention and the case law of the European Court of Human Rights. Finally, the impact of the case law of the Strasbourg Court in relation to Estonia on the general development of precedents with that court is discussed. In conclusion, in relation to the case law of the European Court of Human Rights, it is important to understand that the Court finding a violation of the Convention in respect of Estonia is not so much a condemnation, ‘against’ the country, as a learning opportunity, in a sense, for Estonia’s democracy, rule of law, and human rights protection system. Furthermore, there could well be other difficulties in Estonia that the Court has for various reasons had no opportunity to address. This can be seen in areas wherein the Court has found a violation by another state but wherein a similar problem still exists in Estonia – e.g., in relation to prisoners’ voting rights. It is important to consider a more global picture of the human rights situation. It is unfortunate that in Estonia, especially in the media and for the wider public, little attention is paid still to the case law of the Court with respect to other states.  In general, European law has been well accepted in Estonia, especially the Convention and the case law of the Court. Working from the Estonian examples, one can confirm that the legislature; the executive power, even more so; and, above all, the judiciary of Estonia have recognised well that the Convention is an inseparable part of Estonia’s legal and democratic culture. Estonian courts need to feel that they also are human rights courts, especially in dealing with the facts and Estonian law, domains wherein the Court cannot and should not act as a fourth or first instance. At the same time, the Court should be able to speak not only to the Estonian courts as counterparts but also to the Estonian people. They as well need to understand European human rights law. All in all, Estonia is quite lucky: it does not have particularly worrying human rights problems; not many violations of the Convention are found in respect of Estonia by the Court. Estonian cases have been dealing with more or less the same issues every ordinary democratic country faces, even to a certain extent with problems of a modern, well-advanced society, such as freedom of expression and privacy rights on the Internet. Also the Court has been lucky to have Estonia as an exemplar: a country wherein the Convention system and the Court’s case law have been to a large extent respected and well complied with. But this mutual ‘happiness’, this quite nice two-way street, should not be taken for granted. The Court’s case law is a moving target. It is hoped that all future developments related to the Court will contribute to improvement of the protection of human rights, democracy, and the rule of law all over Europe. Neither Estonia nor any other European country can apply the generally recognised principles by choice ‘in its own way’.  Estonia’s trump in Europe and beyond could be to serve as a model in the protection of human rights. In consideration of its experience, geopolitical location, and size, alongside its investments in education and the historically rooted importance of nurturing intellectual and cultural values, Estonia could be in a very good position to achieve this ambitious goal.&#160

This chapter analyses the legal protection available to vulnerable groups and their members under the European Convention on Human Rights (ECHR), and in particular the vulnerability paradigm of the European Court of Human Rights. It traces the development of the concept of ‘vulnerable groups’ and its use in the case law of the Court and identifies the main groups of persons systematically considered by the Court as vulnerable.When discussing the case law of the European Court of Human Rights, two groups of cases are covered. First, the chapter identifies key cases with respect to specific vulnerable groups, and secondly the most recent cases are analysed to reveal the latest trends. For this purpose, to establish how often ‘vulnerable groups’ appear on the agenda of the European Court of Human Rights, case law research was performed. The time frame chosen was the last five years starting from 1 January 2016 and ending 31 December 2020. After identification of all the cases, 37 most relevant cases were chosen and scrutinised in more detail. In this way, the chapter seeks to offer the reader a contextual analysis of the notion of vulnerable groups in European human rights law and sets out the framework for further chapters of the book.KeywordsVulnerable groupsVulnerabilityConcept of ‘vulnerable groups’Vulnerable groups in the European Court of Human Rights case lawVulnerability in ECHR

The aim of this chapter is to analyse the ECtHR’s evolving bad faith jurisprudence against this backdrop of the difficulties associated with proving bad faith violations in international law. By way of a close reading of the case law of the European Court of Human Rights between 2004, when it found its first bad faith violation until 2019, the chapter investigates how the Court has come to treat good faith as a rebuttable presumption, how the secondary rules of evidence concerning bad faith violations have developed in the case law of the Court over time, and the consequences of these developments for the primary rule provided in Article 18 of the Convention. The Chapter argues that the development of secondary rules of evidence to prove bad faith violations of the Convention are closely interrelated with the recent developments in the interpretation of primary rules of the Convention under Article 18. The ECtHR’s bad faith case law has, over time, evolved away from a direct and subjective evidence paradigm to a circumstantial and indirect evidence paradigm. At the same time, the substantive interpretation of Article 18 of the Convention, too evolved, to signal that the use of domestic laws and judicial proceedings in the service of anti rule of law and anti-democratic agendas constitutes a violation of the Convention. These developments make the ECtHR an avant -garde adjudicatory body in developing secondary rules of evidence for deciding whether states violate their international law obligations in bad faith.

En este artículo se expone la jurisprudencia del Tribunal Constitucional de Chile en materia de dignidad humana con valor fundamental del orden constitucional chileno, y la manera como lo instituye con un límite al ius puniendi estatal. Se exponen textos doctrinales, tanto nacionales como extranjeros, en torno a la noción de dignidad humana y su forma de incorporación en los ordenamientos constitucionales, específicamente en la Constitución chilena. Del mismo modo, se analiza la jurisprudencia del Tribunal, para indagar la idea de dignidad humana que posee, y la manera y los alcances en su aplicación. El Tribunal considera la dignidad humana como una condición intrínseca del ser humano, de la cual se colige un deber de respeto y de consideración, principalmente del Estado. La circunstancia del reconocimiento constitucional de la dignidad lleva a estimarla como la base del orden político y social en el contexto de un Estado democrático de derecho, de lo cual se derivan y concretan en el orden del derecho punitivo una serie de principios, como la presunción de inocencia, el principio non bis in idem, el principio de culpabilidad y el de proporcionalidad de las penas, los cuales necesariamente limitan el derecho penal subjetivo del Estado.

The article examines some aspects of realization of the rule of law principle in the case law of the European Court of Human Rights. The author notes that the principle of the rule of law is a fundamental component of international legal acts regulating human rights and fundamental freedoms. It is emphasized that the Constitution of Ukraine proclaims that the principle of the rule of law is recognized and operates in Ukraine, but the concept of the rule of law itself is not fully disclosed in national legislation. The principle of the rule of law is actually the only effective means of ensuring the inviolability of democracy. The separate elements of this principle as its integral parts and mandatory prerequisites through which the European Court of Human Rights reveals the content of the rule of law was considered. The author provides examples of grouping certain requirements of the rule of law in the case law of the European Court of Human Rights. The author notes that there are no unified approaches to understanding the exact meaning of the rule of law principle either in theory or in practice. The author substantiates that the elements of the rule of law in the case law of the European Court of Human Rights are legality, legal certainty, fairness of a trial and priority of human rights. The main element of the rule of law in the case law of the European Court of Human Rights is legality. The requirement of legality has formal (procedural) and substantive aspects (requirements for the quality of the law). It is noted that the requirement to respect human rights and recognize their priority is key in the case law of the European Court of Human Rights. Cases of human rights restrictions must comply with the principle of proportionality. The provisions of the documents of the Venice Commission on the understanding of principle of the rule are analyzed, the activity of the European Court of Human Rights in ensuring the principle of the rule of law in the process of protection of human rights and freedoms is studied. The author concludes that the case law of the European Court of Human Rights is the basis for understanding the essence of the rule of law as a principle. The author emphasizes that the case law of the European Court of Human Rights has a positive impact on the indicators of strengthening the rule of law in the state, and contributes to the improvement of each individual element of this principle and all of them in aggregate.

The article deals with the ways of regarding the case law of the European Court of Human Rights as a source of criminal procedural law of Ukraine, which is relevant both in terms of the criminal procedure as a science and for the practice of law enforcement. The purpose of the article is to formulate the concept of the case law of the European Court of Human Rights as a source of criminal procedural law of Ukraine. The paper justifies the opinion that the case law of the European Court of Human Rights is developed and based on the decisions of the European Court of Human Rights and the European Commission of Human Rights, regardless of the country in which they were adopted (i. e. has a polyterritorial jurisdiction over states being the participants of the Convention). The article proves that the case law of the European Court of Human Rights is draws upon the decisions made by the European Court of Human Rights and the European Commission of Human Rights regardless of the time of adoption, i. e. it includes the decisions adopted before Ukraine ratified the Convention for the Protection of Human Rights and Fundamental Freedoms. The author points out the appropriateness of classifying decisions that have acquired the status of final as «case law of the European Court of Human Rights». It is also mentioned that there is a need to include final decisions in the case (as the matter of fact), which have a decisive nature and contain a legal position in this case, into the scope of the category «case law of the European Court of Human Rights». Moreover, the article substantiates the necessity to include the decisions adopted by the European Court of Human Rights in full, i. e. not only the set forth legal positions, into the category of «case law of the European Court of Human Rights». Following the results of the study, the case law of the European Court of Human Rights as a source of criminal procedural law of Ukraine is defined as a set of decisions adopted by the European Court of Human Rights and the European Commission of Human Rights, which have entered into force and contain legal policies which either clarify or specify the provisions of the Convention as for the Protection of Human Rights and Fundamental Freedoms and relate to human and citizen’s rights and freedoms.

This chapter attempts to illustrate the influence of the active consumer court doctrine upon national legal orders, by giving examples where national legislation was modified to give effect to the doctrine. This influence is not restricted to instances where the Court has found a certain national provision incompatible with Union law. It suffices that the national legislator has taken into account the respective developments at the level of Union case law. The illustrations derive from three legal orders where a clear imprint of the case law of the Court could be identified. The first one is Spain, where certain legislative provisions had to be revamped in order to comply with the decisions of the Court. The second example is France. The case law of the Court had an“ accelerating effect” on the decision of the French legislator to enshrine the duty of courts in the French Consumer Code ( Code de la Consommation ). The final example is from the UK and the express provision on the duty of courts in consumer litigation involving unfair terms in the Consumer Rights Act 2015. This chapter demonstrates the recognition by national legislators of the distinctiveness of proceedings involving consumers. It depends on the Member States to identify the appropriate way to accommodate the active consumer court doctrine in national procedural laws. In France, for instance, the legislator chose to introduce a provision on the powers of the courts in the Code de la Consommation in view of the former position to the contrary of the Cour de Cassation which has given rise to uncertainty. Such legislative intervention would not be necessary only if it is already clear to the courts that they have to discharge their positive role in consumer law proceedings. The effect of this in some jurisdictions would be to recognize that in the field of consumer protection law, the theory that a relative nullity cannot be raised by a court of its own motion does not apply. Moreover, the body of case law of national supreme courts, in which they interpret national law in line with the case law of the Court, dispels uncertainty. Such body of case law is a valuable source of guidance for national jurisdictions.

The author focuses on the case law of the European Court of Human Rights in two sensitive areas related to the end of human life, notably euthanasia and the withdrawal of life-sustaining treatment (passive euthanasia). These highly controversial issues required the Court to answer crucial questions regarding the scope and essence of the obligations of state parties under Article 2 (the right to life) and Article 8 (the right to respect for private and family life) of the European Convention on Human Rights. Over twenty years ago, in Pretty v. United Kingdom (2002), the concise formulation of Article 2 of the ECHR inevitably led the Court to conclude that the Convention does not guarantee the „right to euthanasia”. However, this has not prevented the Court from inferring a general right to decide on one's end of life as an element of privacy protected under Article 8 of the ECHR. Since the judgment in Pretty, the case law of the Court on assisted suicide and withdrawal of life-sustaining treatment has been balancing between conflicting interests. Having adjudicated several landmark cases, mainly from the United Kingdom, Switzerland, Belgium, Germany, and France, the Court has calibrated the essence and scope of the states' margin of appreciation to allow (or not allowing) assisted suicide and the withdrawal of life-sustaining treatment. However, one should not expect that the Court's standards will satisfy everybody's expectations, given the different philosophical, ethical, and religious approaches to human death and the state's role in protecting the right to life.

This Chapter will be devoted mostly to the study of the case law of the European Court of Justice in connection with the attempts made by private parties to challenge Commission and Council regulations.1 It has already been seen2 that Article 173 EC Treaty excludes a sensucontrario any binding act other than decisions from the scope of challenge by natural and legal persons. Consequently, regulations and directives3 are, in principle, excluded. However, and with the clear intention of preventing the Euro pean institutions from escaping the likelihood of review by choosing the form of a regulation for an act which is in substance a decision, the drafters of the EC Treaty established the principle that a private applicant could bring annulment proceedings against a decision which ‘although in the form of a regulation is of direct and individual concern to the former’.4 From the wording of Article 173(2) EEC Treaty, it would seem that three cumulative hurdles need to be overcome by natural or legal persons who wish to challenge a regulation. In the first place, it has to be proved that the measure, albeit in the form of a regulation, is in substance a decision; in the second place, that the decision is of individual concern to the applicant; in the third place, that it is of direct concern.5 However, one feature of the case law in this area which could trouble any observer who wishes to find uniform criteria in the Court’s approach to the question of locus standi. This is the fact that two divergent lines seem to emerge from the case law of the Court.

Aim: The aim of this study is to examine the direction in which the European Court of Justice can further develop its case law on expulsion decisions by Member State authorities in response to the new challenges facing European integration (including, in particular the practical difficulties arising from the completion of the Area of Freedom, Security and Justice and the divergent case law of the European Court of Justice).Methodology: Based on the most recent case law of the European Court of Justice, the study examines the areas in which it seems necessary for the Court to give interpretative decisions in the context of a prelimiray ruling procedure. The study is primarily based on actual (Member State) case law and its difficulties.Findings: The concept of a territorially united Europe is a necessary corollary to the completion of the Area of Freedom, Security and Justice. While the case law of the European Court of Justice on EU citizenship aims in many respects to strenghten this status (and, at the same time, to weaken Member States’ regulatory power) there is at least a partly opposite trend in the assessement of Member States’ expulsion policy under EU law. The study examines how the European Court of Justice can reconcile the federalising concept of EU citizenship with an expulsion policy based on sovereignity and the impact of all this on the unifying and expanding concept of EU citizenship.Value: The topic examined in the study has not been examined in the Hungarian literature before, the study is based on the latest case law of the European Court of Justice. The value of the study is that it attempts to identify the areas where the European Court of Justice may need to develop its case law in the near future to ensure the effective enforcement of EU law. The study can also provide guidance to domestic legislators and law enforcement agencies in this field.

Dilemmas within the case law of administrative courts on the abuse of the right to public information The right to public information is one of the systemic principles of the functioning of the state. However, restrictions in access to this particular right form exceptions to the constitutional principle. Recently, the case law of administrative courts and the views of legal authors and commentators have begun to invoke the framework of the abuse of the right to public information as a circumstance based on which an entity may deny the applicant access to information. In the absence of statutory regulation, the boundaries and guidelines for applying the framework of the abuse of the right to public information are set by the case law of administrative courts. When analysing the most recent rulings of the Supreme Administrative Court of Poland and the provincial administrative courts, one can see a certain dualism in the applicability of the framework in question. The lack of uniformity in this respect stems primarily from the need to balance the values between respecting the constitutional principle of the right to public information and the possibility of limiting it in events of abuse of an individual's right. As a result of the analysis of the recent case law of administrative courts, a position is outlined indicating that, according to the dominant line of case law, entities obliged to provide public information may invoke the framework mentioned above to protect themselves from actions that are contrary to the assumptions of the Polish Act on Access to Public Information.

The author determines that the imperative instruction of the Criminal Procedure Code of Ukraine provided for in Part 2 of Article 8 and Part 5 of Article 9 relating to the application of the case law of the European Court of Human Rights, in certain cases, has necessitated a rethinking of the understanding of certain principles of criminal proceedings both individually and in their interconnection with each other, as well as in the compilation with the Court’s case law. This is due not only to the use of autonomous definitions by the European Court of Human Rights, but also to the differences in criminal procedural systems, the peculiarities of professional translation of judgments and many other factors. In this article, the author analyzed the current criminal procedure legislation, decisions of the European Court of Human Rights and scientific articles. Based on the analysis, the author concludes that the main feature of the implementation of the principle of competitiveness of the parts and freedom to present their evidence to the court and to prove their convincing nature in the case law of the European Court of Human Rights is that it is considered a fundamental right in the concept of a fair trial, and equality of the parties is distinguished as a principle (basis) for the implementation of such a right. It is determined that this somewhat does not coincide with the legal regulation of such principles of criminal proceedings as equality before the law and the court and the competitiveness of the parties and the freedom to present their evidence to the court and to prove their convincing nature in the criminal procedure legislation of Ukraine. After all, equality before the law is seen as a prohibition of discrimination, and equality before the court can be seen as a prohibition of discrimination by the court, and as equal opportunities in procedural rights, which is a component of competition. With regard to competitiveness, the case law of the European Court of Human Rights identifies the following features of its implementation: it consists in providing an opportunity to familiarize oneself with the comments and evidence provided by the other party and respond to them; aimed at effective participation in criminal proceedings; equal opportunities should be compensated by judicial procedures in cases where equal opportunities have not been provided earlier.

У статті досліджено окремі аспекти застосування практики Європейського Суду з прав людин и під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів. Проаналізовано сучасні думки науковців щодо застосування практики Європейського Суду з прав людини під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів. Досліджено авторські наукові підходи, які обґрунтовують висновок про те, що використання практики ЄСПЛ у кримінальному су-дочинстві України є обов’язковим. Визначено, що застосування практики Європейського Суду з прав людини під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів прямо передбачено ч. 2 ст. 8 КПК України. Також доведено, що використання практики ЄСПЛ вітчизняними судами під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів як мотивація виправдувальних вироків не завжди пов’язана з урахуванням практики ЄСПЛ щодо провокації вчинення злочину, а також засновується на використанні доктрини «плодів отруйного дерева» та «розумного сумніву».

Whilst the other contributions to this book focus on the extent to which the case law of the Court of Justice of the European Union (CJEU) is taken into account in EU neighbouring countries, notably by the national courts of these countries, this chapter deals with the reverse situation; that is, the extent to which the CJEU pays attention to the case law of both international courts and national courts of third countries. This is done mainly by looking at explicit references to such extraneous sources to be found in CJEU judgments and orders. The main focus is on the case law of the Court of Justice, but some information is also provided concerning the case law of the General Court. In the context of references to the European Court of Human Rights (ECtHR) case law contained in Court of Justice judgments, some examples are also given of references to CJEU judgments which can be found in the case law of the Human Rights Court.