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Науково-практична Інтернет-конференція 07.12.2017 - СЕКЦІЯ №1
In accordance with the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention), the right to a fair trial shall be understood as the right of a person to a fair and public hearing of a case within a reasonable time by an independent and impartial tribunal established by law which resolves a dispute over civil rights and obligation of a person or establishes the validity of any criminal charges brought against a person. The analysis of the design of Item 1 of Article 6 of the Convention allows to draw the conclusion about the basic elements of the right to judicial protection, which should include: (a) the right to a trial; (b) fairness of the case; (c) publicity of the trial and declaration of the decision; (d) a reasonable period of consideration of the case; (e) independence and impartiality of the court; (e) consideration of the case by a court established by law.
By ratifying the Convention, Ukraine undertook to organize its legal system in such a way as to ensure the real guarantee of the Convention's right to a fair trial.
With a view to the practical implementation of the aforementioned provisions by Ukraine in recent years, relevant measures of a general nature have been adopted through the adoption of new regulations as well as amendments to the applicable normative legal acts (such as the adoption of the Law of Ukraine “On Amendments to the Constitution of Ukraine (in Relation to Justice)” dated June 2, 2016 [1] as well as the Law of Ukraine “On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Legal Proceedings of Ukraine and Other Legislative Acts” dated October 3, 2017 [2]), which provides for a series of measures aimed at the practical implementation of the rule of law principle and ensuring everyone's right to a fair trial.
Moreover, the domestic system of law has some cases where there are defects in law that impede the exercise of the right to a fair trial. The gaps in legislation, which are traditionally considered by the legal science as one of the most common types of defects in law, are one of these obstacles. The gaps in the law mean the lack of regulatory regulation of a certain group of social relations falling within legal regulation, provided that these relations should be regulated from the standpoint of the principles of law. The presence of gaps minimizes the internal coherence of the legal system and, as a result, leads to legal regulation disruptions. Therefore, the effectiveness of the latter depends, first of all, on the reduction of gaps as one of the defects of the legislation to a minimum level, on how quickly they can be overcome in the process of implementing the rules of law.
In many judgments, the European Court of Human Rights ("the Court") has directly identified violations of the Convention arising from gaps in national law (see, for example, Kharchenko v. Ukraine, Vierentsov v. Ukraine, Kawka v Poland). In this case, the Court finds that the national law does not contain the relevant provisions of the Convention, on the basis of which a judgment should have been made, but it was not adopted. In addition, the European Court of Human Rights does not in any way consider the gaps in the national legislation of the member States of the Council of Europe as a basis for the failure of these States to fulfill their obligations under the Convention (in particular, such legal position was expressed by the Court in its judgment in Zimmermann and Steiner v. Switzerland).
In such cases, the exercise of rights, including those not provided for in the Basic Law, is possible directly on the basis of the provisions of the Convention and the case law of the European Court of Human Rights.
In practical terms, this means that, in the event of the imperfection of certain norms of national legislation, complete or partial lack of legal regulation, national courts should decide such cases directly on the basis of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as practices of the European Court of Human Rights. Moreover, when applying the provisions of the Convention and the Court's practice by national courts, the following should be taken into account:
1) the provisions of the Convention and the Court's judgments have the supremacy over national law for the Member States;
2) if the rights are not provided for in the Basic Law, their exercise is possible directly on the basis of the provisions of the Convention;
3) the existence of a gap in national legislation does not prevent a person from appealing in the domestic court to the rules of the Convention, and national courts from making decisions on their basis, including in the event of a gap in the rights and freedoms established by the Convention or the Court's rulings;
4) in the cases where legislative regulation at the national level is carried out on the basis of a judgment of the Court (that is, after a proper finding of the relevant gaps by the Court), the application of these norms requires the reference to the provisions of the Convention or the practice of the Court, since another approach would make it impossible to apply such rules of national law in the light of international human rights standards.
The practice of the European Court of Human Rights in the theory of law comprises the legal positions formulated by the Court of Justice and set out in its decisions in interpreting the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms that are normative in its nature and which, together with the provisions of the Convention, are binding on the member states of the Council of Europe. In the theory of law, when describing judgments of the European Court of Human Rights, the term “case law” is often used, but it needs some refinement given that, in the context of the Court, there are usually no precedents in the understanding of the classical doctrine, that is, the English model of the court precedent, and the so-called sui generis precedents (of a special kind), or those that by their nature approach the precedents because of their extraordinary authority. The European Court of Human Rights itself has emphasized the necessity of applying such precedents. Thus, in the judgment of April 24, 1990 in the case of Kruslin v. France, the Court recognized the important role of case law, which develops and broadens the content of legal rules, since case law plays an important role in continental countries. In its practice, when considering appeals, the Court refers to its own precedents and continues to be guided by them, in the interests of legal certainty and regular development of case law in accordance with the Convention (see the Chapman v. the United Kingdom judgment).
The mandatory practice of the European Court of Human Rights for Ukraine is legally based on the provisions of Article 1 of the Law of Ukraine “On Ratification of the 1950 Convention on the Protection of Human Rights and Fundamental Freedoms, First Protocol and Protocols No. 2, 4, 7 and 11 to the Convention” dated July 17, 1997, according to which Ukraine fully recognizes in its territory the validity of Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms for the recognition of jurisdiction of the European Court of Human Rights to be mandatory and not requiring special agreement in all matters relating to the interpretation and application of the Convention, as well as Article 17 of the Law of Ukraine “On Enforcement of Judgments and Practice of the European Court of Human Rights” dated February 23, 2006, under which the courts apply the Convention and practice of the Court as a source of law in the proceedings. Consequently, for Ukraine as a Member State of the Council of Europe today, there are all grounds for applying the provisions of the Convention and the practice of the Court by all the jurisdictional authorities of the state since its publication.
Today, Ukraine is facing a problem that judicial practice does not recognize the de facto direct effect of the norms of human rights and fundamental freedoms in so-called difficult cases, when these norms cannot be applied directly by courts, but need to be specified by adopting appropriate laws that would define the content of these rights and set the limits on their implementation. Such position contradicts the principle of direct effect of the norms of the Constitution, according to which “recourse to the court for protection of constitutional rights and freedoms of an individual and citizen directly on basis of the Constitution of Ukraine shall be guaranteed” (Part 3 of Article 8 of the Constitution of Ukraine). The aforesaid points out that courts cannot refuse to administer justice on the grounds of lack of specific legislation or the presence of gaps in legislation.
In such cases, the practice of the European Court of Human Rights is intended to play a decisive role, since the latter, together with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, must be directly applicable by national courts as a legal tool designed to compensate for the lack of specific legislation and to facilitate the settlement of legal cases under conditions of the presence of gaps in national legislation.
Consideration of the above-mentioned provisions in the practical work of the law-enforcement bodies of the state, first of all, the judiciary ones, will promote the provision of appropriate guarantees for the exercise of the right to a fair trial by individuals, which today appears to be the fundamental legal value of any democratic society.

References:
1. On Amendments to the Constitution of Ukraine (in Relation to Justice): Law of Ukraine dated June 2, 2016 // Bulletin of the Verkhovna Rada. – 2016. – № 28. – Article 532.
2. On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Proceedings of Ukraine and Other Legislative Acts: Law of Ukraine dated October 3, 2017. – № 2147-VIII [Electronic resource]. – Mode of access: http://zakon5.rada.gov.ua/laws/show/2147-19 

 

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