APPLICATION OF THE LEGAL POSITIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE JUSTICE OF UKRAINE

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УДК 341.6

DOI 10.37566/2707-6849-2021-4(37)-2

ORCID: 0000-0002-7489-8170

Vitalii ZAVHORODNII

Doctor of Law, docent, Professor of the Department of Theory and History of State and Law, Dnipropetrovsk State University of Internal Affairs

APPLICATION OF THE LEGAL POSITIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE JUSTICE OF UKRAINE

The article examines the peculiarities of the application of the legal positions of the European Court of Human Rights in the national justice.

According to the results of the study, the proposed algorithm of application legal positions of the Council of Europe Court: 1) in order to comply with current legislation to take into account the practice of the Strasbourg court. 2) first of all, it is necessary to single out those of them that were adopted against Ukraine; 3) in the absence of such judgments of the Council of Europe Court, it is necessary to determine those which have recently been adopted against other States Parties to the Convention which are closest in the circumstances of the case to the case before the judge; 4) in the presence of a pilot and ordinary decision of the European Court of Human Rights with similar circumstances of the case, national judicial authorities should take into account the legal position of the decision that is closest in its context to Ukraine.

The criteria of relevance of taking into account the legal positions of the Strasbourg court in the administration of national justice are proposed, namely: a) similarity of the subject of regulation (relations related to violation of convention rights and / or human freedoms), b) similarity of conflict situations, ways of committing violations of convention norms by public authorities; c) the similarity of the current national legislation (both substantive and procedural law) and the practice of its interpretation and application by the authorized subjects of the respondent state; d) similarity of procedures that provide for the possibility of restoration of the violated right at the national level (possibility to appeal, appeal against actions or decisions, appeal, etc.).

Key words: application, legal positions, European Court of Human Rights, relevance, established case law, interpretation of convention rules.

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