Practice Of European Court Research Articles

The compensation for harm: problems and prospects for further legislative reform

The compensation for harm is one of the most important legal ways to protect the violated civil rights and interests of the participants in civil relations. In modern market conditions, this method of protection is the main one for restoring the material condition or compensating for moral harm to the injured person. In the context of updating civil legislation and adapting it to EU legislation, there is a need for new approaches to the legal regulation of compensation for harm.
 The article examines the general terms of compensation for harm: the illegality of the behaviour of the person who caused the harm, the presence of harm, the causal relationship between the illegal behaviour and the harm, and the fault of the person who caused the harm.
 Special attention is paid to the issue of illegality (illegal behaviour) as a condition for compensation for damage. Here the theories of illegality are analysed: objective (normative) and objective-subjective.
 The definition of harm is investigated. The attention is focused on the ratio of the concepts of "harm" and "damages". Attention is drawn to the problems of legal regulation of the concept of moral harm. It is established that according to the practice of European Court of Human Rights, the content of moral (non-property) harm is determined differently in relation to individuals and legal entities. In addition, the methods of determining the amount of compensation for moral harm are analysed, in particular, the method of psychological research certified by the Ministry of Justice in Ukraine and registered in the Methodology of Psychological Research in Cases Involving the Infliction of Moral Suffering on a Person and Compensation for Moral Harm (registration number 14.1.75), which was put into effect from 18.01.2019.
 The article analyses the legal regulation of the causal relationship between illegal behaviour and harm in the Principles of European Tort Law (PETL).
 Based on the results of the research, it was concluded that in the future it is advisable to continue studying and improving the obligations to compensate for harm, in particular, the system of special torts provided for by Chapter 82 of the Civil Code of Ukraine is subject to revision.

Legal Uncertainties in Interpretation of the Term ‘Consumer’ in the Legislation of European Union and the Practice of European Court

The subject of the study is the harmonized norms of European legislation on consumer protection. In particular, the author is interested in the problems of interpretation of the concept of "consumer" in European law as a basis for understanding the essence of relations involving individual consumers. For the purposes of the study, the legislation of the European Union was chosen, as a legal system combining legal differences in the norms of different states, and perceiving and interpreting various legislative norms of the member states. The author analyzes both legislative norms and judicial practice in order to identify gaps in law enforcement and the practical applicability of the study. The author is interested in both the doctrinal component of the formation of the concept of "consumer" and the conclusions drawn in this regard by judicial practice. The author reveals the criteria formed in judicial practice for determining the activity of an individual as commercial, and also reveals the approach of the European legislator to the purpose of the consumer contract. In his research, the author uses methods of analysis and synthesis to clarify the essence of the concept of "consumer" used in various normative legal acts and judicial practice, as well as to form conclusions about the formation of the concept of "consumer" in European law. The main conclusions made in the course of the study are the conclusion about the criteria formed for the qualification of a person as a consumer and their possible components, and the approach is also defined, according to which the activity of an individual can have a dual character, depending on the purpose and substance of the contract that the consumer enters into.

Criminal And Legal Investigation Of Violation Of The Right To Assembly And Association Freedom

Scientific article is devoted to the issues of ensuring and implementing the right to freedom of assembly through the prism of criminal law research. It has been established that this issue has an international and national level. The Council of Europe Convention on Protection of Rights and Fundamental Freedoms and the practice of European Court of Human Rights provide opportunity to expand interpretation of the right to assembly freedom. In the criminal law sense, the right to freedom of assembly is ensured by Art. 340 of the Criminal Code of Ukraine: Illegal obstruction of the organization or holding of meetings, rallies, marches and demonstrations. Separate norms of the Special Part of the Criminal Code of Ukraine legally limit this right. Legal restrictions are contained in the Constitution and Laws of Ukraine. In wartime, this right is subject to limitation, but a reasonable balance of such limitation, obeying foundations of national security, peace, human security, and international legal order, remains important.

INFLUENCE OF LABOR LAW DOCTRINE ON DEVELOPMENT OF LABOR LEGISLATION

The article is devoted to the analyses of influence of labor law doctrine on development of labor legislation. It is stated that labor law doctrine is primary source of law in following cases: (a) enshrined in legislation of legal norms; (b) resolving legal cases in practice, particularly in judicial bodies. It is emphasized that the labor law doctrine has been forming and developing during process of analyses of (a) international legal norms and current legislation of the country and foreign countries; (b) domestic court practice and practice of European Court of Human Rights; (c) real relationship in the sphere of labor, which comply with the conditions of social and economic development of the country; (d) obtained in the past knowledge about the nature and regularity of development labor relationship and closely related relationship. It was concluded that the labor law doctrine as sectoral legal doctrine is logical continuation of legal doctrine in the government simultaneously exactly at the level of sectoral doctrine of law, legal ideas of modernity, which has the abstract character in the sphere of socially useful work, acquire the qualitatively new expression with its maximum adaptivity to implementing particular type of relationship in the sphere of labor.

INTERNATIONAL HUMAN RIGHTS STANDARDS AND RUSSIAN CRIMINAL JUSTICE

The novelty lies in the author's assessment of the impact of international human rights standards and a fair trial procedure not only on the criminal justice itself, but also on the entire system of relations between the state and the individual, as well as in a critical analysis of clauses found in the literature on possible restrictions on the application of the European Court's practice on human rights in Russia. The aim of the work is to substantiate the unconditionally positive influence of international human rights and justice standards on the Russian criminal justice system and the relationship between the state, the individual and society. The objective is to demonstrate, using examples from the literature and practice of the European Court of Human Rights, the undoubtedly positive impact of the application in Russia of the European Convention for the Protection of Human Rights and Fundamental Freedoms and decisions of the European Court of Human Rights on Russian criminal justice and on all practical jurisprudence in Russia. The article uses the methods of system analysis and synthesis, comparative legal and historical methods. As a result, the author's conclusions about the inadmissibility and inappropriateness of limiting the operation on the territory of Russia of international human rights standards and fair trial procedures expressed in the European Convention and court decisions of the European Court have been substantiated. In conclusion, these brief conclusions are formulated.

Aspects of Understanding of Right to Liberty and Security to Be Taken into Account when Selecting Preventive Measures in the Practice of European Court of Human Rights.

Generalization of the practice of the ECHR witnesses that the Court repeatedly in various solutions including cases against Russia, specified that «the practice of holding defendants in custody without a specific legal framework or clear rules regulation their position, as a result, they may be deprived of their liberty for an unlimited period without a court decision, is incompatible with the principles of legal certainty and protection from arbitrariness, which run like a red thread through the Convention and legal norms». By the way there still exist norms in domestic criminal procedure legislation, that are not fully compatible with the principle of legal certainty.

Several Aspects of Procedures in Kosovo Constitutional Court Regarding Fair Trial

Kosova is not a member of European Council and consequently as signatory of the European Convention for Human Rights and Freedoms, mainly its citizens cannot make complaints at the Court for Human Freedom and Rights in Strasbourg even when they claim that their rights are violated by Courts or other Institutions in Kosovo. Therefore the final authority that deals with these claims is Constitutional Court which its decisions bases on practice of European Court for Protection of Human Rights and Freedoms. Kosovo citizens more and more are using this right and are directing to the Constitutional Court in cases when they claim that their rights are violated.

Доступ до пенсійного забезпечення осіб, які проживають на тимчасово окупованих територіях: законодавство України та практика Європейського Суду з прав людини

Доступ до пенсійного забезпечення осіб, які проживають на тимчасово окупованих територіях: законодавство України та практика Європейського Суду з прав людини

Right to an Effective Remedy of Legal Protection: Practice of the European Court of Human Rights and the Norms of the National Legislation of Ukraine

The article investigates right to effective remedy in the practice of European Court of Human Rights and national courts of Ukraine. The attention is paid to absence in the state of certain discretion which comes down to possibility of selection of remedy for performance of their obligation. Attention is paid to comparison of provisions of legal acts of Ukraine, which determine material and legal remedies of civil rights with Article 13 of Convention and practice of European court. Practice of application by national courts of Ukraine of unnamed remedies of protection of subjective rights and legally protected interests has been researched.

Right to an Effective Remedy of Legal Protection: Practice of the European Court of Human Rights and the Norms of the National Legislation of Ukraine

The article investigates right to effective remedy in the practice of European Court of Human Rights and national courts of Ukraine. The attention is paid to absence in the state of certain discretion which comes down to possibility of selection of remedy for performance of their obligation. Attention is paid to comparison of provisions of legal acts of Ukraine, which determine material and legal remedies of civil rights with Article 13 of Convention and practice of European court. Practice of application by national courts of Ukraine of unnamed remedies of protection of subjective rights and legally protected interests has been researched.

Захист права людини на недискримінацію у практиці Європейського суду з прав людини

Захист права людини на недискримінацію у практиці Європейського суду з прав людини

The Guarantees of the Human Rights of the Defendant in the Law System in Kosovo

The paper "The guarantees of the human rights of the defendant in the law system in Kosovo" aims to treat the access of the Republic of Kosovo in the delivery of constitutional guarantees and legal guarantees to protect the defendant in the criminal procedure. Within these guarantees, special emphasis is placed on the judicious acts in force that provide these guarantees in the Republic of Kosovo. A special analysis with regard to this paper is dedicated to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the practice of European Court of Human Rights (ECtHR), the Constitution of the Republic of Kosovo and the Criminal Procedure Code of Kosovo (CPCK). The analysis of those acts clarifies that the guarantees of the Legal System in Kosovo coincide with the rights of the defendant. Another dimension that finds space within the paper is the practical implementation of the guarantees provided by the aforementioned acts in terms of the rights of the defendant. The role of the Constitutional Court in the Republic of Kosovo in the past and now has been mainly analyzed in the formation of the constitutional and international guarantees, applicable in Kosovo concerning the rights of the defendant in the criminal procedure.

The Recognition and Enforcement of Foreign Judgements in Civil Cases in the Context of Practice of European Court of Human Rights

Досліджено проблемні питання визнання та виконання рішень іноземних судів у цивільних справах на рівні національних правопорядків через призму положень Конвенції про захист прав людини та основоположних свобод та практики Європейського суду з прав людини. Установлено, що проблематика визнання та виконання рішень іноземних судів розглядається Європейським судом у контексті принаймні декількох конвенційних прав, зокрема, процесуальних прав – права на справедливий судовий розгляд (п. 1 ст. 6 ЄКПЛ) та права на ефективний засіб правового захисту (ст. 13 ЄКПЛ), а також матеріальних прав – права на мирне володіння майном (ст. 1 Першого протоколу до ЄКПЛ) та права на повагу до приватного і сімейного життя (ст. 8 ЄКПЛ).

Right to anonymous childbirth

In this paper, the authors present the institute of anonymous childbirth which is not regulated by the Republic of Serbia positive laws, but it is in a small number of other European countries. Contrary to the usual review of this issue, through the prism of the child?s right to know its origin, which has become the usual way of reviewing any question from the domain of paedo-centric family law, the authors hereby attempt to shed the light from another angle ? the right of woman (mother) to a private life and the right of a child to be born in medically accepted conditions, which is the interest of the society as a whole. The authors also point out to the possibility of positive demographic effects of introducing this institute which have been the case in the countries which regulate this matter. The arguments in favor of introducing this institute can be found both in comparative law and in the practice of European Court of Human Rights in Strasbourg whose rulings reshape the legislation of European countries, thus actually becoming the sources of law. There is an example from French legislation, which, according to the Court?s opinion, established a fair balance between conflicted rights and interests, which was the key point for reaching the famous decision in the case Odi?vre v. France. This decision set a precedent for the following rulings in similar cases, which proved that this decision was not incidental, but represented a long-term orientation of this Court in solving similar cases. In concluding remarks, the authors emphasize that introduction of this institute into Serbian legislation would not mean complete exclusion of the child?s right to know the facts related to his origin, which today is the key argument against its introduction. In any case, this regulation would represent a more advanced solution from the point of view of child?s protection if compared to some that already exist in Republic of Serbia positive law, which completely prevent a child to learn the facts of his origin.

ПРОБЛЕМНІ АСПЕКТИ ВИКОНАННЯ РІШЕНЬ ЄВРОПЕЙСЬКОГО СУДУ З ПРАВ ЛЮДИНИ В УКРАЇНІ

The article is devoted to the study of problematic aspects of the European Court of Human Rights (hereinafter — the ECHR) execution decisions in Ukraine. The work clarifies the causes and systemic problems due to which Ukraine does not comply with the decisions of the ECHR. The relevant provisions of international and national legislation acts have been analyzed: the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), Protocols No. 1 and No. 14 to the Convention, the Law of Ukraine (hereinafter referred to as the LU) "On the Execution of Decisions and Application of the European Court Practice of Rights person", Law of Ukraine" On enforcement proceedings "," On state guarantees regarding the execution of court decisions ", Resolutions of the Cabinet of Ministers of Ukraine No. 440, No. 703. On the example of the case «Scozzari and Giunta v. Italy», it was shown that the state must comply with the final decisions in which it is a party. This performance should not be limited to compensation for damage caused, but should also include the adoption of general measures and individual nature to correct problems. The work outlined the place of the Committee of Ministers of the Europe Council in the process of execution by states of final decisions regarding them. It was noted that the execution of final decisions is carried out under the control of the Ministers Committee. The resolution “Enforcement of judgments of the European Court of Human Affairs” adopted by the Parliamentary Assembly of the Council of Europe, according to which the violating state can be punished for improper execution of the decisions of the ECHR, in particular with regard to the introduction of legislative changes, was analyzed. The strictest of these penalties is the expulsion of the country from the Council of Europe, which once again underlines the importance of this issue. The article examined the legal nature of "pilot decisions", their difference from ordinary decisions. It was found that the purpose of making “pilot decisions” is to identify systemic problems of the state and help in solving them. The paper provides a list of systemic problems that arose in the practice of the ECHR in cases against Ukraine. On the example of two “pilot decisions”, “Yuriy Nikolayevich Ivanov v. Ukraine” and “Burmych and others v. Ukraine”, specific systemic problems are considered, the ways in which Ukraine tried to overcome them are analyzed. The work contains the reasons that lead to the Ukraine failure to comply with court decisions. These factors are broken down into 3 groups: legal, financial and institutional. The authors propose ways to solve these problems.

Взаимосвязь национального и международного права на примере ЕСПЧ и Конституционного суда РФ. Роль ЕСПЧ и КС РФ в Конституционном праве России

Abstract: this article is devoted to the interconnection of national and international law by the example of court practice of European Court of Human Rights (international law as an example) and Russian Constitutional Court (national and domestic law as an example). Autor is exploring which law is more important for Russia and which norms are more valuable – norms of international law or norms of Russian law, for example, its Constitution – the fundamental law of the country, discusses the rule of international law and state sovereignty. The author describes ECHR problem realization, the problem of their implementation and the role of ECHR and Convention in Russian Conventional Law.

Protection of the Right to Respect for Private and Family Life in European Court of Human Rights

1. Introduction 1.1 Introduce the Problem Right of protection from arbitrary interference with personal and family life is conserved with major multipurpose international law acts in effect at the relevant time in the area of human rights protection: Art. 12 of The Universal Declaration of Human Rights 1948, Art. 17 of The International Covenant on Civil and Political Rights 1966. This right is also protected at the level of regional international organizations, i.a. Council of Europe. The Convention for the Protection of Human Rights and Fundamental Freedoms 1950 is one of key international acts created within the framework of Council of Europe (hereinafter referred to as--the European Convention on Human Rights, European Convention, the Convention). Art. 8 of the Convention (item 1) guarantees everyone the right to respect for private and family life, Everyone has the right to respect for his private and family life, his home and his (the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950). The European Convention established the unique mechanism of human rights and freedoms protection that foremost involves practice of European Court of Human Rights (hereinafter referred to as--ECtHR, the European Court, the Court). According to Overview data of 1959-2014, the European Court rendered 1085 judgments on complaints about violation of Art.8 of the European Convention by State Parties to the Convention from 1959 to 2014. Most violations of Art.8 of the Convention over the specified period (with regard to time necessary for state accession to the Convention) were established against Italy (145 decrees), Russia (131 decrees), Poland (103 decrees). Given this, ECtHR adopted 17754 regulations in total over the specified period, among them 14877 involved at least one infringement of the European Convention (European Court of Human Rights, 2015). The above states that protection of the right to respect for private and family life is significant on the part of Council of Europe member states' citizens and holds a prominent place in ECtHR practice. The research objective is to cover issues regarding opportunities and matters of protection of the right to respect for private and family life with the use of the European Convention monitoring mechanism. It should be mentioned the paper considers the practice of the European Court in the context of protection of private and family life with no regard to respect for home and correspondence that are also guaranteed under Art. 8 of the Convention. Meeting the objective defined statement and solution of the following tasks: to examine the notion of private and family life in the European court practice, to research European court's legal views concerning understanding of admissibility criteria of interference to the right to respect for private and family life, to study ecological rights protection in the context of Art. 8 of the Convention. In the course of paper preparation scientists' works dedicated both to universal mechanisms of international law protection of human rights and human rights protection under the European Convention in general as well as rights to respect for private and family life in particular were studied. Findings of the research develop and complement international and European law sections dedicated to human rights protection. They can be used in different kinds of legal practice, in academic activity when teaching various branches of jurisprudence. 1.2 Importance of the Problem Modern legal science pays much attention to human rights protection, but there are few complex researches devoted to protection of the right to respect for private and family life in European Court of Human Rights. Recently a research dedicated to the right to respect for private and family life and inviolability of home and correspondence has been undertaken (as exemplified by European Court of Human Rights practice) in Russian legal science (Gracheva, 2013). …

Dirbtinis kriminalizavimas kaip teisinės praktikos patologija

The article analyses the negative trend of legal practice, which the author calls the artificial criminalization. This notion identifies a situation where persons are being criminally prosecuted for deeds that lack hazard or belong to the regulation of other branches of law, as well as where persons are being artificially charged with a more serious crime than was actually committed. In most cases, such processes are not able to successfully pass all levels of court examination and eventually end in acquittal or properly changed conviction. But this fact does not diminish the relevance of the problem. It is completely normal when a person is acquitted because prosecution failed to prove her/his participation in a criminal act or to justify some kind of necessary element of a crime. However, the situation where a person has been acquitted by the court because the event was artificially tied to criminal law indicates a failure of the criminal justice mechanism. That is why the artificial criminalization is nothing more but an abuse of the criminal justice powers. The author distinguishes the following objective reasons of artificial criminalization: first, ambiguous and unclear statutory crime definitions that require interpretation; second, law enforcement activities directed to aggravate charges and to show good results in the fight against priority crimes; third, inadequate criminal justice „filter“ that fails to preclude the criminal proceedings for petty human conflicts. The author argues that the subjective reasons for artificial criminalization are typical to some investigators, prosecutors and judges’ formal attitude to the law, their habit of absolutizing the texts of statutes, as well as mechanical understanding of their role, and professional fatigue and deformation. One of the main conclusions of the article is that the modern legal doctrines always give the judge an opportunity to identify and overcome the artificial criminalization, to avoid unjustified convictions and make a reasonable decision in case. The author distinguishes the following working legal instruments: various methods of interpretation of criminal law; adherence to the general and special legal principles, in particular, the principles of legality (nullum crimen sine lege), proportionality, criminal responsibility as a last resort (ultima ratio); the requirement to determine the proper dangerousness of the offense and precise opposition to the legal goods protected by the law; the requirement to disclose the exact content of the guilt (mens rea) of the accused and to avoid the objective imputation; the maxim of human rights protection and practice of European Court of Human Rights. The author illustrates his statements with concrete examples of court practice.

Practice of European Court of Human Rights (ECHR) in the enforcement of courts’ final decisions

The paper aims at highlighting the importance of enforcement of judicial decisions as a key factor in building Rule of Law. As courts do not have the opportunity to lead themselves the process of decisions’s execution and the respective institutions have performed poor results, many cases are presented in front of European Court of Human Rights due to the lack of efficiency in executing judicial decisions. Obtaining a favorable judicial decision does not imply necessarily the fulfillment of the general purpose, and ECHR through it’s judgements has argued that the right to proper administration of justice implies that the enforcement of court decisions should itself be effective and efficient. Being considered as a compulsory provision for the successful conclusion of a legal process, the enforcment of courts’ final decisions within a reasonable time is an essential element of a fair trial. Also, this paper analyses the circumstances when excuses such as case complexity or lack of funds are considered objective and what is the responsibility of the states toward organizing their judicial system so that the justice is awarded.

Pravne teškoće u dokazivanju krivičnih djela korupcije

One of the characteristic of our time are frequent changes in social relations, burdened with many tensions and conflicts. For that reason the law has irreplaceable role in regulation of this relations in a direction that is desirable for society. Problem we are facing with in everyday social relations is increase of criminality which doesn’t stop itself inside of national frontiers but becomes more and more international. Increase of corruption is especially disquieting. In this paper its author is dealing with legal obstacles in practice of implementation of corresponding legal instruments devised for struggle against corruption. These problems are dealt with in the paper not only from the Criminal procedure law aspect but from the Constitutional law aspect as well. Some decisions of the courts in Bosnia and Herzegovina are analised with regard to this problem, i.e. with regard to situations of existence of the evidences that a criminal act is perpetrated but problem is that such evidences are not provided by domestic institutions but by institutions of foreign state. Judicial practice in Bosnia and Herzegovina doesn’t have unanimous opinion on possibility to use such evidences in criminal procedure before the domestic courts. Having designated on different opinions in domestic judicial practice, and in practice of European court on human rights as well, in the final part of the work its author has given his opinion how (and why) this problem should be resolved in criminal procedure.