Problems issues on the application of the national courts of the European Court of Human Rights practice as a source of law

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.

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.

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

The article presents a legal analysis of the peculiarities of using the decisions of the European Court of Human Rights as a source of law in Ukraine as one of the elements of the Anglo-Saxon law. The scientific article aims to determine the legal grounds for applying the decisions of the European Court of Human Rights as a source of law and, further, to identify exceptional cases of such application which are not directly disclosed by Ukrainian law. In particular, the regulation of the application of the European Court of Human Rights decisions, which were adopted before the ratification of the Convention by Ukraine, as a source of law at this stage. In the context of this issue, extending the principle of retroactive effect of the law to the European Court of Human Rights was also considered. The scientific article also aims to analyse specific issues and law situations in applying the case law of the European Court of Human Rights. The author analysed other case laws in Ukraine, including case laws of the Constitutional Court of Ukraine. The focus is on issues not regulated by the current legislation of Ukraine and the application or “twice application” of the case law of the European Court of Human Rights in the context of the Convention for the Protection of Human Rights and Fundamental Freedoms (with protocols) of 04.11.1950 or separately. The author also draws attention to two essential features in the application of the case law of the European Court of Human Rights – the issue of determining the priority of this case over the case law of the national courts of Ukraine and the use of the European Court of Human Rights by the Constitutional Court of Ukraine. Attention is also paid to the provisions of the constitutional procedure of Ukraine. The scientific article is not limited to analysing exclusively normative material enshrined in the current legislation. However, to increase the relevance of this article, the legal positions of the Constitutional Court of Ukraine are also considered. In particular, the author emphasises the peculiarities and possibilities of applying the European Court of Human Rights case law in disputes related to other states in the national law of Ukraine.

In this article we have described the results of statistical and sociological observations of the application of the case law of the European Court of Human Rights (ECHR) during criminal proceedings in Ukraine. The purpose of this article is to identify trends and dynamics of application by national courts of the case law of the ECHR during criminal proceedings, to clarify the current state of law enforcement in this area.We conducted a statistical observation – Monitoring of the information of the Unified state register of court decisions (USRCD) on the state of application of the case law of the ECHR by national courts during criminal proceedings, which illustrates a steadily growing trend: more than 20 times from 2014 (0,1 %) to 2020 (2,24 %). We analyzed the results of the monitoring of the USRCD by territorial units and established the difference in the rates of application by the courts of first and appellate instance of the case law of the European Court of Human Rights during criminal proceedings in the first half of 2020 by 5 and sometimes 8 times between different regions of Ukraine.We conducted a sociological survey - Survey of the expert community on the application of the case law of the ECHR in criminal proceedings. We analyzed the results of the survey which indicate that 89% of the surveyed use the case law of the ECHR during criminal proceedings. We found that the average frequency of using the case law of the ECHR in criminal proceedings is 36,8 %.We propose to introduced in the USRCD a mandatory hyperlink to the decision of the ECHR to the database of the ECHR «HUDOC» in the national court decision (supported by 67,1 % of respondents); create an additional filter in the functionality of the USRCD to search for the case law of the ECHR (supported by 87,5 % of respondents); create a distance learning portal to study the case law of the ECHR (supported by 89 % of respondents)

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

The article aims to identify the rules governing the mutual relationships among the European Court of Human Rights, the Court of Justice, the constitutional courts of EU’s Member States, and the EFTA Court. Its second goal is to determine to what extent their decisions and interpretive conclusions mutually bind these courts. The third goal is to present the approach taken by the Czech Constitutional Court towards the European Court of Human Rights and Court of Justice, and their decisions, on the one hand, and that of the Court of Justice to rulings made by the European Court of Human Rights and the EFTA Court, on the other hand. To find an answer to these questions, the article first analysis the normative settings and the links among individual legal systems and also among these courts. The second part of the article focuses on the case-law of these courts and thus on the reality of their “mutual” decision-making. The author concludes that there is a significant difference between the decisions of the Court of Justice and the European Court of Human Rights. While the former has the power to determine the binding and, therefore correct interpretation of EU law, the latter does not have comparable competence when it comes to the European Convention. Therefore, European Court of Human Rights decisions are only de facto binding. However, in the case law of the Constitutional Court, the exact opposite is the reality. The European Court of Human Rights judgments are unquestioningly respected and followed, while the approach to the Court of Justice’s decisions oscillates between two extremes. Some of its decisions are fully reflected, while others are silently ignored. Similarly, the Court of Justice works differently with the European Court of Human Rights decisions and the EFTA Court. The Czech Constitutional Court and the Court of Justice also have in common that they treat decisions of the European Court of Human Rights (Czech Constitutional Court) and the EFTA Court (Court of Justice) basically like their own.

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 article has been devoted to the analysis of the nature of the decisions of the European Court of Human Rights as a source of constitutional law of Ukraine. The nature of the judgments of the European Court of Human Rights has been characterized depending on the following factors: state legal system, constitutional approach to the relation between national and international law, the level of bindingness of decisions of the European Court of Human Rights for public authorities. The author has concluded on the duality of nature the decisions of the European Court of Human Rights, namely that, the author considers that the decisions of the European Court of Human Rights have a complicated, complex structure, combining the properties of both a right-interpreting act and a judicial precedent. According to the author, the decisions of the European Court of Human Rights are intended not only to resolve the cases under trial, but also to specify and interpret the rules of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has been established that the current Ukrainian legislation, establishing the primacy of the rule of law before the law, provides for the obligation of the judicial authorities to apply the decisions of the European Court of Human Rights as a source of law and at the same time the duty of the state to enforce the decisions of the European Court of Human Rights in cases where Ukraine is the defendant. In addition, as the case law of the European Court of Human Rights shows, the judiciary itself emphasizes in its decisions the interpretative nature and the binding nature of all its decisions to be taken into account by all States parties. The Constitutional Court of Ukraine constantly uses the decisions of the European Court of Human Rights to form its own legal positions, after which they actually become a substantive element of the motivating part of the decision of the Constitutional Court of Ukraine. It has been concluded that regardless of whether or not the decision of the European Court of Human Rights has been ruled on Ukraine, it is a source of constitutional law in Ukraine.

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».

Introduction. Ukraine signed Convention for the Protection of Human Rights and Fundamental Freedoms many years ago to provide effective protection of fundamental rights for every human that stands out on its' territory. This document is interpreted by the European Court of Human Rights. Practice of this Court must be used by national courts of Ukraine to match international human rights' standards. However, according to results of statistical research, application of that legal positions by national judges aren’t correct enough. The purpose of the paper is to identify and analyze problematic issues of application of the case law of the European Court of Human Rights by national courts of Ukraine. The authors also wanted to investigate the national practice of using the ECHR' legal positions and to provide recommendations to address shortcomings in such application. Results. The paper considers the issue of application of the case law of the European Court of Human Rights by the national courts of Ukraine. The legal nature of ECHR decisions' is studied. Authors are stick to the idea that judgments of ECHR aren’t classic precedent. There are authors' opinions about the problem of applying the practice of the European Court of Human Rights, which has no official translation. They think that judges need to be taught professional English and French. So that they will be able to understand original text of judgments correct. There is also a thought about necessity of creating special database with Ukrainian translation of some judgments. Authors have also revealed problematic aspects of the application such as: erroneous, manipulative, formal references. There are some decisions of Ukrainian courts that have been analyzed by the authors. Erroneous references to decisions of the European Court of Human Rights in such cases have been determined. Authors stated that the reason of those defects is insufficient awareness of judges about the specifics of application legal positions of ECHR. Conclusion. According to the results of the work, the importance of education and training of future judges is stated. In addition, authors emphasized on necessity of further observations of this question.

The scientific article examines the activities of the European Court of Human Rights and identifies the significance of the relevant case law of the European Court for the case law of Ukraine. It is noted, that one of the issues, studied within the topic, is the sources and legal framework, which is especially relevant in the adoption of the Law of Ukraine «On Enforcement of Decisions and Application of the Case Law of the European Court of Human Rights», according to which courts use the Agreement and case law as a legal source in cases. The activity of the European Court of Human Rights, the role and impact on the judicial system of Ukraine are analyzed, the relevant examples are given. It is concluded, that the implementation of international human rights law into Ukrainian law is a complex procedure that requires special doctrinal consideration, as today Ukrainian citizens are among the most active complainants to the European Court of Human Rights, which indicates a fairly high insecurity by national legal mechanisms. In order to increase the credibility of the judiciary, courts should take into account the European experience, decisions and observations of the Court in their work. The Court's case law is said to play an important role in the judicial reform process as it approaches the European legal framework for human rights standards in Europe. The current law cannot fully protect a person or build justice if it is not applied properly. Based on existing ECtHR rulings, judges can accurately understand the rule of law and apply it properly, which will help improve human rights, accurate understanding and implementation of the Agreement on Ukraine. Based on the study, it was concluded, that it is necessary and appropriate to implement the decisions of the European Court of Human Rights, as in this way it is possible to ensure the protection and defense of human and civil rights and freedoms

This study examined the search of housing and workplace in terrorist crimes within the framework of the case law of the European Court of Human Rights. The study aims to minimize the human rights violations that may occur during housing and workplace searches. The method of the study is the application of the case law of the European Court of Human Rights to housing and workplace searches. Methodologically, the introduction part of the study reviewed the human rights violations that may occur in search operations or practices in the context of terrorist crimes. In the development section of the study, the way the European Court of Human Rights evaluates cases related to housing and workplace searches and the criteria that it applies were determined. Later, it was examined together with the Criminal Procedure Code No. 5271 examined by the European Court of Human Rights on housing and workplace searches. Then, the decisions of European Court of Human Rights related to relatively old-dated cases in Türkiye were examined and criticisms were provided against the European Court of Human Rights. In the conclusion section of the study, recommendations have been provided on how housing and workplace searches should be conducted in the context of human rights, in line with the data obtained from the case law of the European Court of Human Rights.

The article addresses the issue of judicial impartiality in civil procedure, which is relevant from theoretical and practical perspectives. The purpose of the article is to highlight the main approaches to judicial impartiality as an integral part of the right to a fair trial in terms of the paragraph 1Article 6 of the European Convention of Human Rights, as well as to analyze the Supreme Court's practice for compliance with the approaches to the interpretation of judicial impartiality developed in the case-law of the European Court of Human Rights. In the article the author uses general philosophical, general scientific and special research methods, in particular, dialectical, system-structural, logical and comparative legal methods, method of analysis and synthesis. The judicial impartiality is an integral element of the rule of law and the right to a fair trial. The European Convention on Human Rights and the case-law of the European Court of Human Rights played a key role in the development of international standards of judicial impartiality within the European region. The European Court of Human Rights developed a dual approach to judicial impartiality, distinguishing between subjective and objective impartiality. An additional approach to verifying the impartiality of the court in the case law of the European Court of Human Rights is to distinguish between functional and personal impartiality. The analysis of the Supreme Court practice shows that the latter has not fully accepted the approaches to judicial impartiality developed by the of the European Court of Human Rights. The article analyzes certain cases of the Supreme Court, in which, in the author's opinion, the Supreme Court incorrectly applied the case-law of the European Court of Human Rights in order to motivate its decisions. In addition, special attention is paid to the problem of the possibility of judicial disqualification on the grounds of the performance/non-performance of certain procedural powers by a judge. The article can be interesting for legal scholars and practitioners, PhD students and students of law universities.