Precedent law dialogue between Constitutional Court of Ukraine and the European Court of Human Rights

Abstract

«Constitutional instrument of the European public order»: it is these now-known terms that the European Court of Human Rights (hereinafter - the Court) qualified in 1995 the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - the Convention), in a decision issued by the Grand Chamber. Should we conclude from this that the Convention will be equated with the Constitution, and the Court with the constitutional court? Judges as guarantors of rights and freedoms, constitutional courts and the European Court of Human Rights influence each other, may pronounce on identical or similar issues – especially after the entry into force of the priority question of constitutionality – and sometimes seem to use equivalent standards of reference. However, constitutional courts constantly use the Court’s case law, but never mention it. In addition, the European Court no longer hesitates within its control to appropriate the decisions of the constitutionalcourts. Thus, a significant convergence of case law is emerging, which can lead to a double reading: should we be delighted by such complementarity of controls? Or consider, on the contrary, that these relations are based primarily on competition law? The dialogue of case law corresponds to all cases when, in the absence of an institutionalized procedure, the court decides to more or less freely use provisions from such and such a decision made by others. Among legal dialogues, the dialogue between domestic constitutional judges and the European Court of Human Rights is certainly the densest and most fruitful.
 Dialogue between courts involves the implementation of institutional cooperation procedures. Although the treaty system did not provide for any institutional procedure for cooperation, the extension of the Court’s jurisdiction to issue advisory opinions is aimed at strengthening the interaction between the Court and national courts in order to consolidate the implementation of the convention in accordance with the principle of subsidiarity. Constitutional courts occupy a very limited place in ECtHR case law and vice versa. The so-called «dialogue of judges» has its advantages and, in particular, allows to avoid misunderstandings.