EUROPEAN COURT OF HUMAN RIGHTS PRACTICE AS A SOURCE OF LAW

Yevheniia Kaliuzhna

doi:10.32612/uw.27201643.2021.1.pp.81-90

Abstract

The urgency of the research is stipulated by the necessity to study the European Court of Human Rights practice as a source of law at the regional level, which affects the development of national legal systems. The purpose of the article is to elucidate the European Court of Human Rights practice as a source of law for member states to the Convention for the Protection of Human Rights and Fundamental Freedoms (on the examples of individual decisions). The research is based on the understanding of law as a dynamic social and cultural phenomenon having a specific content and is closely related to human dignity, human rights and justice. Legislation is only one form of law that can exist outside the prescriptive texts, which requires the use of the hermeneutic method and content analysis of the European Court of Human Rights decisions. The article finds out that the European Court of Human Rights is one of the most effective institutions for human rights implementation. Applying the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, which was adopted in 1950, through a dynamic interpretation, the European Court of Human Rights ensures the effectiveness and efficiency of this international treaty, revealing the content in the aspect of modernity. States parties to the Convention for the Protection of Human Rights and Fundamental Freedoms are obliged to comply with the European Court of Human Rights decisions, which (the court) always follows its practice, ensuring legal certainty and the rule of law. This allows considering the European Court of Human Rights a subject forming legal doctrines at both regional and national levels. The materials of the article can be used for scientific research of the European Court of Human Rights practice as a source of law at the regional level, which affects national legal systems. The main provisions of the article can be used to justify the study of ECHR practice by lawyers as well as law students and civil servants.

Highlights

Today, the state of human rights implementation is the crucial indicator of the public authorities’ activities effectiveness
The paper takes into account the approach according to which the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms are implicit and acquire their meaning through their interpretation by the European Court of Human Rights (ECHR), the source of law is not the decisions of the ECHR but the ECHR’s provisions
The study of individual decisions of the ECHR was carried out using a hermeneutic method and the content analysis method, which allowed to take into account the specific circumstances of the case, the peculiarities of national legal systems, presence of discretion in public authorities while regulating public relations and the necessity to understand the Convention as a contract on human rights and fundamental freedoms collective implementation. (ECHR, 1978) One of the fundamental provisions of the study is that the discretion of public authorities as to law and order insurance has certain limits, which are determined, among other things, by the essential nature of human rights, and the principle of the rule of law

Summary

Introduction

The state of human rights implementation is the crucial indicator of the public authorities’ activities effectiveness. The fundamental task of the state is to ensure human rights in a civilized society. If in the first half of the twentieth century the issue of human rights had a predominantly national character, since the second half of the twentieth century it has acquired an international character. The changes that have taken place in society since the second half of the twentieth century could not but affect the theory of human rights. The rapid development of the information sphere, globalization and European integration has become the factors that have influenced the development of human rights. “a number of lawyers claim the emergence of the fourth generation of human rights – somatic rights at the present stage of society development” (Ivanii et al, 2020)

Objectives

Methods

Results

Conclusion