TAKING INTO ACCOUNT THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE PROCESS OF CRIMINAL-LEGAL QUALIFICATION
Journal Title: Юридичний науковий електронний журнал - Year 2016, Vol 6, Issue
Abstract
Article deals with the issue of taking into account the legal position (making) the European Court of Human Rights in the process of criminal-legal qualification. Considered discussion questions to determine the sources of criminal law and criminal law, the range of phenomens that are recognized today in the doctrine of criminal law and jurisprudence as additional grounds of criminal-legal qualification. Analyzed the role of decisions of the European Court of Human Rights as a source of criminal law in Ukraine. The conclusion is that today the practice of the ECHR is quite widely used in Ukraine of justice. In particular, the judges turn to her at the justification of a preventive measure in the form of detention, when deciding on inappropriate research evidence about the circumstances which are not contested by anyone (simplified procedure under Art. 349 of the Criminal Processual Code), at justification release from probation, determining the proportional size of compensation for moral and material damage, etc. Rarely can meet court decisions, which would take into account the legal positions of the ECHR directly for justify the criminal law assessment of socially dangerous acts. On the basis of the decisions of the ECHR and set out in their legal position regarding the interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms found that long-standing practice of justice ECHR has developed quite reasonable criterions for signs of torture, inhuman attitude, special cruelty, torture, etc., which can use them in the criminal law assessment of assaults on life, health of the person, her honor and dignity. Drawn attention to that in the case when in the decisions of the ECHR certain concepts interpreted more broadly than in the articles of the Criminal Code of Ukraine, courts may consider such a decision only in the part that does not contradict domestic law. The content of assessed sign must be installed in the context of the object and purpose of the relevant articles of the law. It is noted that in the judicial decisions should contain not only references to a specific decision of the ECHR, but indicate the correlation of the relevant decision with norms of national law and the conditions of the particular case. The priority direction of improving the practice making use of the European Court of Human Rights asked to consider the correct interpretation of the content of the decisions, a clear ascertainment of the legal position of this instance in individual cases by national judges, the possibility and advisability to refer to the relevant jurisprudence in the process of criminal-legal qualification.
Authors and Affiliations
О. П. Рябчинська, Ю. В. Іваніна
Keywords
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