MANDATORY APPLICATION OF THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS AS A SOURCE OF LAW BY THE COURTS OF UKRAINE

Abstract

The article is devoted to clarifying the debatable aspects of the mandatory application by the courts of Ukraine of the practice of the European Court of Human Rights as a source of law. Particular attention is paid to the legislative content of the concepts “practice of the European Court of Human Rights”, “decision of the European Court of Human Rights”. It was found that since the ratification by Ukraine of the Convention on the Protection of Human Rights and Fundamental Freedoms, the latter is part of the national legislation, at the same time, the legal basis for the application of practice, including decisions, of the European Court of Human Rights when considering cases by the courts of Ukraine is the provisions of the Law of Ukraine “On execution of decisions and application of the practice of the European Court of Human Rights”. It was determined that among the arguments in support of mandatory practice, in particular the decisions of the European Court of Human Rights as a source of law in the legal system of Ukraine, there is a comparison of the meaning of the Convention on the Protection of Human Rights and Fundamental Freedoms and the decisions of the European Court of Human Rights with the Constitution of Ukraine and the decisions of the Constitutional court of Ukraine. At the same time, it was emphasized that the legislative provisions do not directly indicate the obligation of national courts to apply the practice of the European Court of Human Rights when considering cases. Among the indicators of the problem of the application of the practice of the European Court of Human Rights by the courts of Ukraine, special attention is paid to mistakes made by judges when referring to the norms of the Convention on the Protection of Human Rights and Fundamental Freedoms and decisions of the European Court of Human Rights, which is the basis for changing and canceling the decision after its review by superior court. It was found that there is no unequivocal answer among scientists regarding the binding practice of the European Court of Human Rights for national courts. It was concluded that the application of the practice of the European Court of Human Rights by the courts of Ukraine today should be a recommendation, not a prescription, taking into account the norms of the law, the provisions of the scientific doctrine and the problems associated with its correct application.