THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS AS A SOURCE OF LAW IN UKRAINE: PROBLEMS

Abstract

The state’s recognition of human rights and freedoms as the highest value gives it the obligation to respect and protect them. Following its accession to the Council of Europe, Ukraine has acquired relevant obligations under the European Convention on Human Rights. This was enshrined in the Constitution of Ukraine, laws and international treaties, and became an important source of development of the Ukrainian legal system. The Convention obliges States parties to comply with judgments of the European Court of Human Rights (ECHR) against a State (if it is a party). The Convention for the Protection of Human Rights and Fundamental Freedoms is characterized by a high level of generality of prescriptions and a large number of evaluative concepts. Due to such abstraction, the main content is revealed in the direct case law of the ECHR, which is a consequence of the application and interpretation of the Convention. Currently, Ukraine is one of the countries whose citizens most often apply to the ECHR. The main reasons for this are the lack of a clear position on the practical procedure for applying ECHR decisions in a case, the belief in the inexpediency of using case law as the main source of law in countries with Romano-Germanic legal system (including Ukraine), lack of official judges full translation of the texts of ECHR decisions. It also slows down the process of disseminating in Ukrainian courts a direct reference to ECHR decisions, the existence of some scholars’ reasoning about the “secondary” nature of these decisions as a source of law and the denial of their independence. Examining domestic case law, we also conclude that some judges ignore the case law of the ECHR or do not want to take responsibility for referring to precedents (because courts have for many years used regulations as almost the only source of law to justify their decisions). All this leads to the Ukrainian courts not recognizing the case law of the European Court of Human Rights as a full-fledged and universally binding source of law. Despite the tendency to gradually increase the number of references to ECtHR decisions in resolving disputes, the case law of the ECHR has not become general, which is a certain obstacle to the protection of human rights and freedoms, as a result of which the number of Ukrainian complaints to the ECHR does not decrease.