THE RIGHT TO COMPENSATION IN THE CONTEXT OF ARTICLE 5 § 5 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS AND PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS
Journal Title: Юридичний бюлетень - Year 2018, Vol 7, Issue 2
Abstract
This article examines a right to compensation in accordance with the provisions of the fifth paragraph of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The article also analyzes the case-law of the European Court of Human Rights in cases against Ukraine concerning that issue. Conforming to the Article 29 Constitution of Ukraine, every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law. The Constitution of Ukraine reproduces the provisions of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. According to the Article 5 “Right to liberty and security” of the Convention, everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. Article 5 § 5 provides that “everyone who has been the victim of arrest or detention in contravention of the provisions of Article 5 shall have an enforceable right to compensation”. The right to compensation set forth in paragraph 5 presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Court. In the absence of a finding by a domestic authority of a breach of any of the other provisions of Article 5, either directly or in substance, the Court itself must first establish the existence of such a breach for Article 5 § 5 to apply (for example, Nechiporuk and Yonkalo v. Ukraine). In considering compensation claims, the domestic authorities are required to interpret and apply domestic law in the spirit of Article 5, without excessive formalism (Shulgin v. Ukraine). The effective enjoyment of the right to compensation must be ensured with a sufficient degree of certainty. Compensation must be available both in theory (for example, Dubovik v. Ukraine) and practice.
Authors and Affiliations
Марта Романівна Мазур, Віталія Богданівна Хамандяк
Keywords
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