Practice Of National Courts Research Articles

The International Legal Nature of the Interaction between the Judicial Authorities of the Member States of the Council of Europe and the European Court of Human Rights

The current stage of development of international relations and international law is characterized by the active growth of interstate cooperation and the emergence of new more integrated forms of such cooperation. A special manifestation of this modern phenomenon is observed in the field of judicial cooperation. Moreover, the emergence in the modern world of international universal and regional courts and the gradual increase in their number, has become one of the prerequisites for a new form of international judicial cooperation — the interaction of national courts with international regional courts. In this regard, the greatest interest for the theoretical analysis of international legal regulation of judicial interaction is the study of the experience of such interaction in the European space, which operates the «oldest» international regional courts — the Court of Justice of the European Union, which was established in 1952 and was called the Court of Justice of t he European Coal and Steel Community and the European Court of Human Rights, established in 1959. The legal nature and forms of interaction of national courts of European states with the named international regional courts are of special interest for scientific analysis, which is explained both by considerable experience of judicial cooperation accumulated by them and novelty of legal forms and mechanisms of cooperation requiring theoretical understanding. Without exaggeration, the reopening of proceedings based on judgments of the European Court of Human Rights is one of the most effective, and often the only, measures to restore violated individual rights and improve the practice of national courts and ensure full and effective enforcement of ECHR judgments. The basis of cooperation between the courts of the member states of the Council of Europe and the ECHR is the provisions of the Convention, which makes the decision of the ECHR binding. The judicial authorities of the member states of the Council of Europe are obliged to apply the convention law of the Council of Europe, as well as the case law of the ECHR, which is the only source of cooperation between the courts of the member states of the Council of Europe and the European Court of Human Rights.

CONSTITUTIONAL RIGHT TO OWN, USE AND DISPOSE THE RESULTS OF INTELLECTUAL AND CREATIVE ACTIVITY: «JUSTIFIED EXPECTATION» FOR OBTAINING PROPERTY SUBJECT TO LEGAL PROTECTION

In the science regarding Constitutional Law, the issue for restriction of intellectual property rights provokes lively discussions. When registration of trademarks, there increasingly raises a number of theoretical and practical questions: can the state "destroy" the legitimate expectations of the subjects of intellectual property rights by adopting certain legislative acts in order to fulfill its international obligations? Is the decision to apply the provisions of a bilateral agreement to the application for trademark registration, which came into force after the subject was filed into trademark application process, considered as interference into the peaceful use of property? Does the constitutional and legal mechanism for regulating public relations in the field of intellectual property on "expectativa jurídica" issue the need to be improved?
 The purpose of this article is to identify the conditions under which the applicant who has applied for registration of a trademark has the right to claim in respect of which he has a "justified expectation" of its implementation, as well as to identify conditions that allow national law or there is insufficient evidence in the settled case-law practice of National Courts to state that an applicant who has applied for registration of a trademark has a “justified expectation” protected by the provisions of the Article 1 of Protocol No. 1 to the Convention. Research methods is the general methods of scientific cognitivism as well as concerning those used in legal science: methods of analysis and synthesis, formal logic, comparative law etc.
 In order to benefit from the protection of Article 1 of Protocol No. 1 to the Convention, an applicant who has applied for registration of a trademark must be entitled to claim in respect of which he may affirm that he had at least a “justified expectation” for its implementation. The grounds for concluding that such a “justified expectation” is as follows: the availability of grounds for such a requirement within national law and the consistent practice of National Courts, which shows that the applicant does have sufficient grounds to obtain this very justified expectation. 2. The mentioned reasons allow to affirm about the lack of reasonable grounds within national law or in the settled case-law practice of National Courts that are to state that an applicant who has applied for registration of a trademark has “justified expectation” protected by provisions of the Article 1 of Protocol No. 1 to the Convention: 1) the applicant company had a right that is subject to a certain condition, which was terminated retroactively due to non-compliance with this condition, namely that it did not violate rights of the third parties; 2) there is a dispute/disputes about the registration of a trademark, which being taken into the Court processing in different countries; 3) the applicable rule of national law is sufficiently accessible, accurate and predictable; 4) the criteria for trademark registration are unclear, there are doubts about their proper interpretation, as well as the difficulties associated with the need to analyze various international instruments.
 Violation of the Article 1 of Protocol 1 is a retrospective interference by the legislator. The current legislation of Ukraine in the field of intellectual property on “expectativa jurídica” issues when filing an application for trademark registration, as well as on state interference regarding the “justified expectation” of the applicant companies needs to be improved in the light of the case-law practice of the European Court of Human Rights.

Torture as a ground for inadmissibility of evidence

The European Court of Human Rights, which focuses on the Convention for the Protection of Human Rights and Fundamental Freedoms, points to the importance of the prohibition of torture. The Court has formed its position based on the importance of Article 3 of the Convention and, consequently, the inadmissibility of the evidence obtained in violation of that article by the prosecution. This paper analyzes the practice of the European Court of Human Rights on the implementation of evidence-based activities in national legal systems, and in particular examines the requirements of the Court on the admissibility of evidence-based exercise and activity obtained in the course of work results. The paper demonstrates the ECHR's practice on the issue of torture in obtaining evidence and the consequences of using such a «method», its significance for the practice of national courts and the modernization of the position of courts in relation to the dynamics of this issue. As a result, problematic areas of Ukrainian legislation and justice were identified. The reasons for the use of torture by the authorities and the safeguards introduced by Ukraine to combat the use of such inhuman treatment by the authorities were identified. Changes in the opinion of the European Court of Human Rights on this issue and its significance for Ukraine are analyzed. The possibilities of application of the ECHR for evaluation of admissibility of evidence in criminal proceedings in Ukraine are examined. The patterns characterizing the legal positions of the ECHR in assessing the admissibility of evidence are discovered and singled out. Ukraine should take into account that the responsibilities of the state, in addition to refraining from the use of torture to obtain evidence, include the protection of people from these encroachments by third parties.

СУДОВЕ ТА ПОЗАСУДОВЕ РОЗВ'ЯЗАННЯ СПОРІВ, ЩО ВИНИКАЮТЬ ІЗ ВІДНОСИН ЗАПОДІЯННЯ ШКОДИ МЕДИЧНИМ ПРАЦІВНИКОМ

The article analyzes various forms of protection of the rights of individuals to compensation for harm caused by a medical specialist, which are used in different countries around the world. In particular, special attention is paid to those approaches to pre-trial and out-of-court dispute resolution arising from patient harm relationships used in the United States. Among the most common ways of resolving such disputes are seeking help from a separate body or unit of a medical institution (risk management), mediation and negotiations in medical disputes, pre-trial inspections ("screening panels"), which allow to find a more compromise way to protect individual rights, affected by the actions of medical specialist. Accordingly, the first part of the article carries out a terminological analysis of the category "relationship of harm to a health worker" and the search for the closest term ("medical malpractice"), which allows for research in English-language scientific sources. The second part of the article is devoted to the analysis and generalization of the methods used in the practice of other countries to compensate for damage caused by a medical specialist (medical malpractice). The last part of the article analyzes the Ukrainian legislation and practice of national courts, which showed that in cases of compensation for damage caused by a medical specialist, there are no common approaches and single law approaches. In particular, attention is paid to the procedure for assessing the quality of medical services provided in 2016 by clinical expert commissions of the Ministry of Health of Ukraine. The study provided an opportunity to justify in the conclusions the need and feasibility of introducing additional out-of-court methods of resolving disputes arising from the relationship of harm to medical workers.

Differentiation of criminal liability for various forms of high treason

The article is devoted to the differentiation of criminal liability for various forms of treason. Using the experience of Ukraineafter the occupation of its territories by the Russian Federation in 2014 and legal doctrine, analyzed some forms of crime under Art. 111of the Criminal Code of Ukraine.Such forms of treason are considered as: 1) transition to the side of the enemy in a state of martial law or during an armed conflict;2) espionage; 3) providing assistance to a foreign state, foreign organization or their representatives in carrying out subversive activitiesagainst Ukraine. Emphasis is placed on the fact that the statistics of convictions for treason and the actual number of servicemen, lawenforcement officers, judges, and civil servants who have sided with the enemy differ significantly. Difficulties and contradictions inlaw enforcement are revealed, ways of their elimination are offered.Based on the study of each of the forms of treason, the responsibility for which is provided by Art. 111 of the Criminal Code ofUkraine, revealed a significant difference in the degree of public danger of such acts. Analysis of the practice of national courts also showsthat for this crime under Art. 69 of the Criminal Code of Ukraine often imposed a milder punishment than provided by law. Ta king intoaccount the above, as well as the experience of the legislation of states such as Germany, Switzerland, Sweden, it is proposed to providein a separate article of the Criminal Code of Ukraine to allocate such a form of treason as providing assistance to a foreign state, foreignorganization or their representatives. According to the author, this act should be defined as a not particularly serious crime, which shouldbe punishable by imprisonment for up to ten years. This will avoid the unjustified severity of the criminal law, and in the event of a politicaldecision to reintegrate the occupied territories, apply amnesty to those who will be prosecuted for such a crime after the conviction.

Disclaimers in European Patent Applications

Abstract A European patent application may be amended by, among others, deleting a part of the claimed subject matter under established conditions or by the incorporation of an undisclosed or disclosed disclaimer. Disclaimers are a useful tool in order to maintain the balance between the practical needs of applicants and the interests of third parties in legal clarity and completeness. The incorporation of disclaimers may not extend beyond the content of the European patent application as filed and the protection it confers. The purpose of this paper is to illustrate how an applicant can introduce a negative technical feature into the patent application in the light of the extensive judicial practice of the Technical and Enlarged Boards of Appeal of the European Patent Office. The author has analysed the criteria for disclaimers set out in decisions G 1/03, G 2/10 and G 1/16 in accordance with the general notion of patent law and requirements of patentability. Additionally, this problem was also characterized in the light of the judicial practice of national courts and legislations of the EU Member States.

The Role of Polish Courts in the Development of International Law after Regaining Independence by Poland in 1918

The article explores the question to what extent Polish courts could have contributed to the development of international law between the two World Wars, after Poland regained independence in 1918 and began rebuilding the State. This is also a period when the practice of national courts was particularly important for the elaboration of general standards of conduct in numerous areas of international law. Many of the decisions of Polish courts, especially those that concern the consequences of succession of States, the occupation of enemy territory, nationality and statelessness, diplomatic and State immunities or effects of the treaties were relevant in this process.

Problems of Russia’s Integration into the Legal Framework of Europe

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The practice of actually reimbursing legal aid costs with real ones in the civil process

The article examines the relation between the actual reimbursement of legal aid costs and the actual costs in civil proceedings. The case law is analyzed in the part of documentary confirmation of the expenses incurred in the case of expenses for the assistance of a professional lawyer, as well as the possibility of considering the issue of changing the costs of professional legal assistance at the request of a party or in the absence of a corresponding request of a party. Procedural Code of Ukraine does not specify a clear list of documents that a party must submit to confirm the costs incurred by it in the case of expenses for professional legal assistance, but the most common practice is the signing of an act of work performed by a lawyer and a client, in the absence of such a document, the courts refuse to compensate for costs parties to professional legal assistance. The practice of national courts regarding the confirmation of incurred expenses for professional legal assistance is heterogeneous, in this connection lawyers have to sign with clients all possible documents for the confirmation of the rendered services in order to prevent a court refusal to reimburse such expenses. The author emphasizes that the absence of a unified position of the Supreme Court, even at the level of the united chamber of the Court of Cassation concerning the different approach concerning the possibility of considering the reduction of the costs of professional legal assistance at the request of a party or in the absence of a corresponding request of a party may continue to give rise to the right.

Der Einfluss der Entscheidungen des Europäischen Gerichtshofes für Menschenrechte auf Normbildende und Rechtssprechungspraxis

The European Court of Human Rights (ECtHR) plays a crucial role in the protection of human rights and fundamental freedoms of individuals. The goal of this Court is to resolve complaints in which these individuals allege that the State of their citizenship fails to perform the obligations arising from the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (the Convention). The ECtHR assesses the reasonableness of the term for “final” resolution of a legal conflict, and includes therein the time needed to implement the judgment. Currently, excessively long periods needed to implement the judgments which award payments of certain amounts to plaintiffs at the expense of budgetary funds is still a sensitive issue for Bulgaria as well as for Ukraine. As a respective confirmation of such a situation for Ukraine, the author mentions ECtHR’s judgment passed in 2017 in the case of Burmych and Others v. Ukraine, which actually determined the fate of 12,148 applications filed to the Court by Ukrainian citizens who complained of the violation of their right to a fair trial because of the failure to implement final judgments passed by national courts. The purpose of the article is to determine the impact of ECtHR’s judgments on the rulemaking and practice of national courts. The experience of Bulgaria is taken as the object of study. The author analyzes two pilot ECtHR judgments which found that Bulgarian courts breached the requirements of Art. 6, § 1 of the Convention. After these judgments became final, the Bulgarian Parliament amended the laws “On the Judiciary” and “On the Liability of the State and Communities for Damage Caused” to incorporate the provisions which are aimed at avoiding any future violations similar to those found by ECtHR. The author studies these legislative changes and the practice of their application with the aim of illustrating that ECtHR judgments have an efficient impact on the improvement of national legal rules. In summary, the author maintains that the mechanisms of compensation described in the article – the administrative one (after amendments to the Law “On the Judiciary”) and the judicial one (after amendments to the Law “On Liability of the State and Communities for Damage Caused”) precisely meet the ECHR criteria.

Principles of Regulation of Tax Relations in Romania

The maintenance of a balance between the proper execution of a state’s functions and individual interests is secured by the principles of regulation of tax relations. Such principles are defined by the constitutions and the tax legislations of foreign countries. The modern interpretation of the principles of regulation of tax relations is revealed by the relevant jurisprudence. The present article addresses matters of interest for Russia of the application of principles of regulation of tax relations in Romania. Such regulation is based, particularly, on the principles of legality, certainty and specificity, as well as bona fide of the taxpayer. The principles of proportionality and effectiveness of the EU apply in addition to the national level of legal regulation. The guarantor of the observance of such principles is the court: the biggest part of decisions on tax disputes are in favour of the taxpayer. The article represents an attempt to systematize the distinctive features of the realization of the aforementioned principles in the context of the analysis of the relevant jurisprudence of national courts of Romania (the appeal courts, the High court of cassation and justice and the Constitutional court), as well as of the European Court of Justice and the European Court of Human Rights. The identified distinctive features relate to the following matters: compliance with the constitutionally stipulated procedure of enacting tax laws and elimination of contradictions between secondary legislation and tax laws, inadmissibility of the retroactivity of the law, application of legal methods of ascertaining the risk of taxpayers who are to be verified, as well as compliance with tax secrecy requirements. The article contains examples of jurisprudence in the matter of accountability of a state in civil procedure for the illegal appropriation of funds from the taxpayer in the practice of national courts and of the European Court of Justice.

НАПРЯМКИ ВДОСКОНАЛЕННЯ ПРАВОВОГО РЕГУЛЮВАННЯ СУРОГАТНОГО МАТЕРИНСТВА В УКРАЇНІ

The article is devoted complex research of problem of defence of rights for children, bear as a result of application of auxiliary genesial technology – substitute maternity. In research the basic conceptual going is described near determination of origin of bear by a substitute a mother child, the problem of absence of the legislative adjusting of legal status of embryo of man is set, conceived in-vitro and the ways of its decision are offered. Attention is accented on the ambiguousness of the legal adjusting of the phenomenon of substitute maternity in the world. In research the possible risks of unhonesty of medical establishments which give services in auxiliary genesial technologies, and consequences of errors of doctors-reproduktologists, are analysed as subsequent limitation of rights for a child by a foreign country on the example of case of «Paradizo and Kampanelli v. Italy». Pointlessness of the legislative fixing of term, during which a substitute mother must give a consent to registration of persons the parents of child, is set, taking into account possible manipulations from the side of substitute mother and potential loss by the new-born child of parents in the case of death of substitute mother to signing of the proper consent. In research the role of the Ukrainian national courts is analysed in establishment of legal fact of domestic relations between parents and new-born child for confession of state power of birth certificates, given out the Ukrainian organs of state civil registration foreign organs. Concentrated attention on absence of permanent practice of national courts in relation to determination of type of judicial realization as in certain cases a court specifies on the substitution of concepts «establishment of legal fact of domestic relations» and «confession of paternity declarants». As a result of research a conclusion is done about the necessity of development of international convention, which will fasten the standards of defence of rights for children, bear as a result of application of auxiliary genesial technologies, and also outlined tasks which appear before a national legislator and Ukrainian courts, to provide the high-quality legal adjusting of substitute maternity, taking into account rights for a child above all things.

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

Evolution of Legal Consciousness and Law Enforcement: Paradigmatic Shifts in Private International Law (or When will international commercial arbitration put an end to law?)

The modern world order under the influence of globalization processes has changed considerably leading to a paradigm shift in law, to serious displacement °f concepts of understanding contributing to the methodological crisis of modern theory of law. A new legal reality of the XXI century transformed by globalization and examined in the context of legal anthropology draws the new future of that is created not only by state authorities, but also by private actors: A global business community or business elite by means of transnational and multinational organizations, supranational structures. A disciplinary matrix of private international is also undergoing significant changes being at the forefront of the ongoing transformations. And if the system of private international based on the postulates of a positivist legal science still does not include the of non-state regulation, the modern paradigm of private international is already inconceivable without appropriate rules. Legal instruments used to regulate cross-border relations, the nucleus of which is formed by of law, are greatly enriched today by quasi-judicial (non-legal) means rather than new of law. A significant place is occupied now by of non-governmental regulation that in the context of this study are qualified as collective and the most neutral designation of norms of non-governmental origin governing cross-border relations. The process of active application of non-state regulation in the area of cross-border trade started in the sphere of transboundary trade regulation and has spread to virtually all types of trans-boundary relations of civil nature, albeit with a very different degree of penetration and recognition of relevant rules, as well as with different admissible functionalities. A living, flexible, adaptive, self-organizing, mobile regulatory environment is shaped by supplanting, replacing, adapting, enriching traditional legal regulators. What is particularly important, and in the nearest future can lead to global consequences, is that the of non-governmental regulation form a special regulatory system of not ideally-abstract vacuum type that serves the purpose of modelling the future legal systems, but the system carrying out an obviously applied purpose as an applicable law in the context of well-developed and widely recognized destinator on the international scene, i.e. international commercial arbitration. In fact, there is some fundamental rift in the matter of understanding and, as a consequence, enforcement (application of norms) in the practice of national courts in different countries and in the practice of international commercial arbitrations resolving cross-boundary disputes.. The term rules of law clearly understood by any domestic lawyer takes on new sacred importance in private international and in international commercial arbitration. The author makes an attempt to assess developments in the context of private international law. The current legal reality that is being studied in the context of legal anthropology, synergetics, integrative approach to provides new answers to contemporary challenges that are highly relevant to private international and its institutions. This approach, i.e. examining developments in international private through the prism of legal theory, allows for updating, enriching, modernizing the doctrine in question.

Kadi and the Role of the Court of Justice of the European Union in the International Legal Order

AbstractThis chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision inKadiand the forthcomingKadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do inKadi IIis adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.

Kadiand the Role of the Court of Justice of the European Union in the International Legal Order

AbstractThis chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision inKadiand the forthcomingKadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do inKadi IIis adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.

Estimating Damages to Competitors from Exclusionary Practices in Europe: A Review of the Main Issues in the Light of National Courts’ Experience

The paper reviews the major issues in the estimation of damages from exclusionary behaviour that arise from the practice of national courts in Europe. Types of damages are discussed, and the methods employed in their estimation analysed on the basis of a detailed examination of a number of cases. It is shown how courts efficiently draw upon their experience in other areas of commercial damages, often using informal methods for assessing damages, which combine a number of means of proof. Formal methods are used as well, such as “before and after” and “yardstick” methods. For the latter, a two-stage test for legal acceptability is inferred from case law. It is concluded that European Commission's efforts in fostering private actions for this type of damages are useful, but they should primarily address legal issues - such as mitigation - that create significant differences across countries: there is a limited need for guidance by the Commission on damages estimation techniques.

The relationship of the EC courts with other international tribunals: Non-committal, respectful or submissive?

This article inquires how the EC courts deal with judgments of other international courts and tribunals, such as the European Court of Human Rights, WTO tribunals, and panels set up by the EC’s proliferating number of bilateral agreements. Having reviewed the case law to date, the essay focuses on one question in particular: should the EC courts consider themselves bound by rulings of other international tribunals? Although the ECJ recognized in the early 1990s that it might be so bound, to date it has never accepted this in actual case. The article submits that, in the absence of a specific instruction in a particular international agreement, there are strong reasons for the EC courts not to bind themselves a priori to rulings of other international tribunals. The EC Courts should normally follow the rulings of the international tribunal, but should keep the power to deviate from another international ruling in narrowly defined circumstances. Reference is made to the practice of national courts. Allowing the EC courts to perform such limited checks and balances should not weaken the Community’s credibility as a reliable negotiating partner. It will also facilitate the domestic reception of international law in the EC legal order.

European Court Practice Concerning State Immunity from Enforcement Measures

The practice of national courts in Europe with regard to enforcement immunity is far from uniform. Nevertheless, certain common principles have emerged over the last decades. Absolute immunity from enforcement measures has been largely abandoned and almost all jurisdictions have adopted a restrictive approach to enforcement immunity in one or another form. Enforcement measures are usually permitted in case of waiver or with regard to earmarked property. In practice, the most important exception from immunity concerns non-governmental property. Here it is primarily the purpose of the property against which enforcement measures are sought that determines whether or not immunity will be granted. This article surveys the judicial practice in Europe, focusing on the case-law of the last 50 years, in order to permit an assessment of whether various recent codifications, most importantly the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, actually codify such practice or depart from it.

UN Convention on State Immunity: Form and Function

The eventual product of the International Law Commission's (ILC) work on state immunity hasbeen in the form of a Convention. This prompts the question whether widespread ratification (or accession etc) will be necessary for clear rules of international law on state immunity to become firmlyestablished or whether a substantial codifying effect could be achieved even if the Convention does not attract a great number of parties. The latter has sometimes been said of much of the Vienna Convention on the Law of Treaties. As the law on state immunity has undergone much of its substantial development by practice of national courts (albeit that the piecemeal adoption and implementation of treaties has played some part), could this process not simply continue with the Convention providing guidance or a model? If the trend from absolute to restrictive immunity could occur by development of customary law, are there not still adequate means of consolidating customary law without the need for states actually to become parties to the treaty?