Баймуратов М.О., Гріненко О.О. Рішення Європейського суду з прав людини щодо дружнього врегулювання: проблеми теорії та практики / ECHR Decisions on Friendly Settlement against Ukraine: Problems of Theory and Practice
Journal Title: Журнал східноєвропейського права - Year 2018, Vol 49, Issue
Abstract
The issue of definitive features of the ECHR decisions on friendly settlement in cases against Ukraine is analyzed in the article, the aspects of such decisions` interpretation, translation, execution and implementation are watched in it. The presence of certain relevance criteria for some ECHR decisions to the ECHR friendly settlement decision category in the Law of Council of Europe is proved; the absence of such criteria in the Ukrainian legislation is determined. The presence and volume of the common features of all the actual ECHR decisions in cases against Ukraine regarding the friendly settlement procedure is proved. The procedure of annihilation the doubts on relevance possibility of certain ECHR act to the ECHR friendly settlement decision against Ukraine category is lighted; issues of interpretation of the certain norms of coherent ECHR decisions are watched, both as the aspects of implementation the Ukrainian translation of such decisions in Ukraine. Such results were achieved upon revising and comparing more than 150 ECHR acts against Ukraine where the friendly settlement issues were mentioned in 2001-2017, with regard to the coherent norms of the European Convention on Human Rights, of the Rules of Court and of Ukrainian national legislation both as the legal doctrine publications. There is proved that main criteria for ECHR friendly settlement decision category in the Law of Council of Europe are: short summary on facts and solution in the ECHR decision, execution by ECHR the art. 39 of the European Convention on Human Rights. Such criteria must be used in issues of relevance of the ECHR act to the ECHR friendly settlement decision against Ukraine category, foreseen by Ukrainian legislation. Some criteria are established by the ECHR practice in cases against Ukraine, where the friendly settlement procedures were used to. Such criteria are: - direct regard (mentioning) by the ECHR in the resolute parts of its decisions, directly – in the phrase on strike the applications out of ECHR list on the art. 39 of the European Convention on Human Rights (in ECHR decisions since September, 2012); - taking note or determining by ECHR in the part “Law” of the decisions that the friendly settlement reached between the parties (in ECHR decisions no later than from June, 2006); - taking note or determining by ECHR in the part “Law” of the decisions that such settlement is based on respect for human rights as defined in the Convention and the Protocols thereto (in ECHR decisions no later than from June, 2006). There are determined some cases of ECHR refusal for determining the friendly settlement reached between the parties as the legal ground to strike the application out of ECHR list. Also there are fixed the cases of ECHR agreement for Government’s proposal to change the conditions the friendly settlement between parties after acceptance of such agreement by the ECHR. The only ECHR decision on striking the application from the list what is not in compliance with pointed criteria was found. There is proved that Law of Council of Europe foresees the effective mechanisms of the interpretation by the ECHR its own decisions, including such where the friendly settlement is pointed. There is pointed that if the authentic translation of the ECHR decision in absent or if the official translation of the ECHR decision has no features of authenticity, the original English and\or French text of ECHR decision must be used by national court. The actual problem of absence of the official translation the Rules of Court to Ukrainian language and absence of final determination of the national legal role of such Rules in Ukraine are shown.
Authors and Affiliations
Mykhailo Baymuratov, Olena Grinenko
Keywords
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