Rada Evropy a Evropské právo – právní rozbor

It is indicated that proper protection of fundamental human rights is a key criterion for the existence of a true legal state. Coverage of the functioning of the European Court of Human Rights is becoming increasingly widespread in the information space. The significance of this institution not only does not decrease over time, but also increases. Today, the ECHR has become an effective mechanism of legal protection for those citizens who have exhausted the possibilities of achieving justice within the national legal system. The article examines the impact of the ECtHR decisions on the protection of human rights through the prism of modern challenges and threats. It is noted that the imperfection of the national judicial system is an obvious fact. At the same time, Ukraine is among the five countries with the largest number of applications to the European Court of Human Rights. It is emphasized that the fact that more and more people are applying to the European Court of Human Rights indicates that it is an effective mechanism for protecting their rights and freedoms. However, the ECtHR is a supranational mechanism for the protection of human rights: its capabilities are limited by its powers, the breadth of which is determined taking into account respect for the sovereignty of the member states that have voluntarily undertaken to implement the decisions of the Court to which they are parties. The effectiveness of the legal protection mechanism established by the European Convention on Human Rights depends not only on the efficiency of the Court’s work, but also on how conscientiously states implement its decisions. And only the combination of these two factors has the effect of ensuring human rights and fundamental freedoms stipulated by the Convention. It is concluded that in the context of adapting Ukrainian legislation to EU legislation, ensuring social human rights (the right to a decent standard of living and social development), political rights (compliance with international electoral standards, the right to association), and protecting human rights are the key to stable partnership relations with EU member states. Ukraine needs to continue to make considerable efforts to ensure the effectiveness of the Convention for the Protection of Human Rights and Fundamental Freedoms, to create new effective national remedies for its violations, and to adapt national legislation to European standards. That is, the most effective and direct protection of human rights and freedoms guaranteed by the Convention should be ensured at the national level.

The article analyzes the condition for acceptability of individual applications to the European Court of Human Rights, which was introduced by The Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, the substantial damage to which the applicant suffered as well as the circumstances that introduce the reservation of paragraphs B clause 3 of the Art. 35 of the Convention for the Protection of Human Rights and Fundamental Freedoms and their qualification features.It has been found that the European Court of Human Rights, even assuming that the applicant did not suffer material damage cannot declare as inadmissible any individual claim that raises the question: the adoption of law, interpretation of the norms of the Convention for the Protection of Human Rights and Fundamental Freedoms, national right. It has been established that the respect for human rights, even if there is a presumption that the applicant did not suffer material damage, requires announcement as an admissible by the European Court of Human Rights such an individual application, since it has raised issues of a general nature regarding the observance of the norms of the Convention for the Protection of Human Rights and Fundamental Freedoms: 1) the necessity to clarify the obligations of the State under the Convention; 2) to compel the respondent State to resolve a structural problem affecting the interests of other persons in the same position as the applicant. The following conditions have been identified in the presence of which respect for human rights does not require consideration of the statement by the European Court of Human Rights: 1) the relevant national legislation and practice changed, and similar issues had already been resolved in other cases that the European Court of Human Rights reviewed; 2) the relevant law was canceled and the statement had only a historical character; 3) The European Court of Human Rights or the Council of Ministers have already considered this issue as a complex issue

У статті досліджено окремі аспекти застосування практики Європейського Суду з прав людин и під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів. Проаналізовано сучасні думки науковців щодо застосування практики Європейського Суду з прав людини під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів. Досліджено авторські наукові підходи, які обґрунтовують висновок про те, що використання практики ЄСПЛ у кримінальному су-дочинстві України є обов’язковим. Визначено, що застосування практики Європейського Суду з прав людини під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів прямо передбачено ч. 2 ст. 8 КПК України. Також доведено, що використання практики ЄСПЛ вітчизняними судами під час здійснення правосуддя в кримінальних провадженнях щодо корупційних злочинів як мотивація виправдувальних вироків не завжди пов’язана з урахуванням практики ЄСПЛ щодо провокації вчинення злочину, а також засновується на використанні доктрини «плодів отруйного дерева» та «розумного сумніву».

Subject of the research. The article considers two levels in the mechanism of protection of human rights and freedoms: national and supranational. National includes both judicial and non-judicial methods of protection. The supranational level is represented by universal (global) and regional ways. The purpose of the research is to identify an effective mechanism for the protection of human rights that can replace the mechanism of protection provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, which has ceased to be valid for citizens of the Russian Federation. Research methods are the formal-legal method, analysis, synthesis, formallogical method.The main results. Theoretically, a particular citizen can use any of the national and supranational mechanisms for the protection of human rights. However, the nature of their action and the procedure for gaining access to these mechanisms are different, which affects their effectiveness and the readiness of a person to turn to one or another method of protection. Among supranational mechanisms, the Universal Declaration of Human Rights of 1948 has a unique status: on the one hand, this document is “a symbol of the moral consensus of all states, the starting point for the creation of a modern human rights regime”; on the other hand, it is an act-declaration, the application of which in specific legal relations and the protection of human rights with its help are problematic. The International Covenant on Civil and Political Rights of 12/16/1966 provides for the establishment of a Human Rights Committee that exercises control over the provisions of the Covenant through a system of reports. Reports on measures taken to implement the rights provided for by the Covenant, as well as on non-fulfillment of their obligations under the Covenant by other States Parties, are submitted by States Parties. The mechanism of reports, however, is not reliable enough - there are states that ignore it.Regional Conventions are rightly considered the most effective means of protecting human rights. The implementation of the provisions of the Conventions is ensured by the activities of supranational judicial bodies, to which the applicant can file a complaint. The conditions for applying to such a court, its territorial proximity, the possibility of executing court decisions make this method of protection as accessible as possible. Among the national remedies, first of all, it should be noted the activity of the Constitutional Court of the Russian Federation to protect the constitutional rights of citizens. The provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Constitution of the Russian Federation in the section on human rights are almost identical, often written in the same phrases. But, despite the number of coincidences in the designation of human rights and freedoms, the main thing is not the designation (this is a declaration) of a specific right or freedom, but how they are applied and what is the practice of their protection (interpretation) by the Constitutional Court at the national level and the Convention on the supranational. It is here that the understanding of “identical” formulations can differ, and the question of who is better: a national or supranational body protects a particular human right, becomes debatable. It should also be remembered about the very meaning of supranational protection as an opportunity to receive protection from one's own state, albeit a subsidiary one. Therefore, it would be wrong to assume that in the absence of the possibility of applying to the ECHR, a citizen will be able to receive protection in the Constitutional Court without prejudice to the outcome of such protection.Considering that the protection of human rights is, first of all, the activity of national courts of first instance, consideration by the courts of administrative, civil and criminal cases, in cases where it is carried out in full compliance with the norms of procedural legislation, is able to fully ensure the protection of the rights and human freedoms. To do this, the courts have all the necessary tools, you just need the ability and desire to use them.Among the internal structures for monitoring the observance of human rights, a number of state and public bodies can be distinguished - the Commissioner for Human Rights in the Russian Federation, the Council under the President of the Russian Federation for the Development of Civil Society and Human Rights, the Public Chamber of the Russian Federation, the police, the prosecutor's office and others. However, it is not possible to attribute them to the effective bodies for the protection of human rights.Conclusions. The existing national and supranational mechanisms for the protection of human rights, in their effectiveness, are not able to fully compensate for the loss of the opportunity for citizens of the Russian Federation to file a complaint with the European Court of Human Rights.

The research paper examines the legal category of procedural (proceedings) law “Right to a Fair Trial” as a fundamental element of the European Human Rights Convention and the judicial practice of the European Court of Human Rights. The Authors concentrate mainly on the general part of Article 6 and focus on crucial aspects of the mentioned right which have become significant for the daily legal practice in the Russian Federation, Republic of Austria and other member states. In the domestic Russian legal doctrine, there are sectoral and international legal studies devoted to the Convention for the Protection of Human Rights and Fundamental Freedoms, the functioning of the European Court of Human Rights and the legal nature of its acts (A. Abashidze, E. Alisevich, M. Biryukov, S. Kalashnikova,V. Tumanov, K. Aristova).Along with this, from the standpoint of conventional rights, Russian legal scholars studied the procedural features of the implementation of acts of the European Court of Human Rights and the application of conventional norms in civil, arbitration and criminal cases (I. Vorontsova, T. Solovieva, M. Glazkova, S. Afanasiev, L. Volosatova, E. Iodkovsky, K. Mashkova, etc.).The private-scientific research methods used by the Authors in the presented scientific article, predominantly comparative, require the study of the works of foreign scholars in the field of law, which include P. Leanza, O. Pridal, D. Spielmann, V. M. Zupancic, H. Mosler, A. Buyse. Despite the rather large volume of doctrinal sources on the nature and implementation of conventional rights, the issues of applying the right to a fair trial in administrative disputes and cases arising from public law relations have not become the subject of scientific research. The empirical basis of the study conducted by the Authors is composed of 66 pilot judgments and other acts of the European Court of Human Rights on complaints from individuals against Russia, Austria, France, Finland, the Netherlands, Great Britain, Switzerland and other member states of the Council of Europe; judicial acts of the courts of Russia, Austria and other European countries. It is concluded that the practice of Article 6 of the European Human Rights Convention by the European Court has had a remarkable and sometimes unprecedented impact on public law and law enforcement activities of the European countries that are parties to the Convention. As Russian and Austrian experience shows, the decision of the European Court on behalf of the enforcement of Article 6 in one specific case can induce the state not only to adopt a separate law, but also to carry out serious institutional changes. Many such examples are given below by the Authors, which testify that the decisions of the European Court are able to act as a powerful law-forming force on the national level.

The effective protection of human rights is extremely important in countries in transition faced with the challenge of overcoming an authoritarian past rife with severe violations of basic human rights and freedoms. In post-war societies, where large-scale violations of human rights have resulted from armed conflicts, the effective protection of human rights is even more crucial. Therefore, it is not surprising that one of the primary goals of the General Framework Agreement for Peace in Bosnia and Herzegovina (the Dayton Peace Agreement) was to establish an adequate legal and institutional framework for the enforcement and protection of human rights in Bosnia and Herzegovina. The Constitution of Bosnia and Herzegovina provides for a special status to the European Convention on Human Rights and its protocols, which, pursuant to Article II.1 of the Constitution, shall have priority over all other laws. The Constitution also stipulates that the enjoyment of rights and freedoms provided for in the 15 human rights instruments listed in Annex 1 to the Constitution shall be guaranteed to all persons in Bosnia and Herzegovina without discrimination on any grounds. While the Constitution envisages the existence of several institutions responsible for guaranteeing respect for human rights, the possibility of BiH citizens to directly address the European Court of Human Rights as well as other bodies responsible for monitoring the implementation of appropriate human rights instruments, whose practice will be discussed within this paper, is of great importance. Although this type of protection is highly important, it is necessary to strive for the improvement of the national (BiH and entity) human rights protection system, through the continuous improvement of the legal framework and the functioning of institutions entrusted with the protection and enforcement of human rights. The paper also analyses the effects of the ratification of international instruments on human rights protection.

The so-called Salduz doctrine that concerns the right to a fair trial and the right to the defense attorney emerged from the case of Salduz v. Turkey, decided on the part of the European Court of Human Rights where the Grand Chamber found the violation of Article 6, paragraph 3(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. In this connection, the aim of this paper is twofold. In the first place, the paper aims to demonstrate how the European Court of Human Rights has overturned the two main tenents of the so-called Salduz doctrine derived from its landmark case of Salduz v. Turkey in its later Judgments delivered in the case of Ibrahim and Others v. the United Kingdom and the case of Beuze v. Belgium. The two tenets derived from the Salduz doctrine being examined in the paper are the right to access to the defense attorney as a rule during pre-trial proceedings and the absolute exclusionary rule. In the second place, the paper aims to offer a critique of the standard of compelling reasons employed in the Ibrahim Judgment. In order to achieve its aim, this paper primarily analyses the jurisprudence of the European Human Court of Human Rights in the cases of Salduz v. Turkey, Ibrahim and Others v. the United Kingdom, and Beuze v. Belgium. Besides, the paper also touches upon other judgments of the European Court of Human Rights related to its subject. The paper in question, therefore, primarily relies on the case-law method in achieving its aims. The paper concludes that in overturning the Salduz doctrine in relation to aspects examined in the paper, the European Court of Human Rights has exacerbated the legal standing of the person against whom criminal proceedings are being conducted.

The article focuses on the role of legal acts of the European Court of Human Rights (ECHR) in the criminal process of Ukraine. It analyses national and international regulatory and legal acts as well as highlights the standpoints of scholars, which resulted in defining the need to use the term “the practice of the European Court of Human Rights” aiming to describe the legal acts of the ECHR as a source of Ukrainian criminal procedural law. The article gives ground to the statement that the court order issued by the ECHR which reveals the fact of Ukraine violating international obligations (norms of the Convention for the Protection of Human Rights and Fundamental Freedoms) in court’s resolution of a case, that have entered into force, have a dualistic legal nature: on the one hand, it is a legal act, which provides grounds for reviewing the criminal case in exceptional circumstances, and on the other hand, is a part of the practice of the ECHR. The author makes a conclusion that the role of the practice of the ECHR in the Ukrainian criminal process is to ensure the rule of law and lawfulness in the criminal procedure by means of applying the practice of the ECHR as a source of law. The role of court orders issued by the ECHR, which establish the fact of Ukraine violating international obligations (norms of the Convention for the Protection of Human Rights and Fundamental Freedoms) in court’s resolution of a case that have entered into force, is viewed in initiating a mechanism to ensure proper and effective protection of human rights and freedoms in the criminal case.

The author has studied the issue of the origin and formation of the European Court of Human Rights after the Second World War, steps in the establishment and development of this Court, as well as the actions of the Member States to consolidate the development of the European Court of Human Rights at specialized conferences with the support of the Committee of Ministers. The list of regulatory and legislative acts adopted by the Verkhovna Rada of Ukraine for the establishment of the rule of law in regard to the understanding of human rights in the activities of Ukrainian courts has been researched. Since the Convention for the Protection of Human Rights and Fundamental Freedoms has become part of national legislation after its ratification by the Verkhovna Rada of Ukraine, more detailed study should be conducted regarding the urgent task of fully understanding the content of this international treaty and the main mechanisms for implementing its norms. The author has analyzed the implementation of the case law of the European Court of Human Rights on the example of its specific decisions into criminal procedural legislation of Ukraine by applying the decisions of the European Court of Human Rights by the Grand Chamber of the Supreme Court in its activities and problematic aspects of their practical implementation. Particular attention has been paid to the study of problematic aspects of the use of these decisions in practice by highlighting the rulings of the Grand Chamber of the Supreme Court issued in 2019. The author has analyzed the decisions of the European Court of Human Rights in regard to the conducted secret (search) actions by law enforcement agencies with further disclosure ob obtained evidence to the defense party; it has been also pointed out that the right to disclose evidence contained in criminal proceedings is not absolute to the defense and may be limited only in cases when there are the interests of national security, information protection or witness protection concerning the methods and forms of law enforcement agencies’ activity. The author has made propositions to resolve certain situations related to the implementation of the decisions of the European Court of Human Rights in Ukraine.

Restriction of liberty for the purpose of psychiatric treatment raises practical, ethical and philosophical issues relating to privacy and confidentiality. As a result, the issue of confidentiality in mental health care is a subject of long-standing interest. The challenges are at once medical, legal, ethical and philosophical. In 1991, the United Nations' (UN) placed strong emphasis on confidentiality and privacy, an emphasis that was re-iterated in the World Health Organisation's "Resource book on mental health, human rights and legislation" in 2005. In 2006, the UN "Convention on the rights of persons with disabilities" articulated that "no person with disabilities [which includes at least some people with mental illness], regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation" (article 22). The Council of Europe's "Convention for the protection of human rights and fundamental freedoms" ("European convention on human rights" [ECHR]) (1950) also articulates a "right to respect for private and family life", specifying that "everyone has the right to respect for his private and family life, his home and his correspondence" (article 8). In the setting of involuntary mental health care, however, it is apparent that this right, like the right to liberty, is a qualified right. A number of important UK cases and cases in the European court of human rights have explored this ECHR "right to respect for private and family life", ultimately demonstrating that interference with this right can be permissible, once such interference is proportionate, predictable, in accordance with relevant codes of practice (insofar as possible), and clearly justified, for reasons set out logically at the time. While these judgments assist significantly with interpreting international human rights standards and national laws, it remains the case that the practice of psychiatry is also shaped by many factors other than law. Day-to-day clinical work continually presents dilemmas which are not adequately covered by law and require solutions based in broader principles of good medical and ethical practice. In this context, formal medical ethical guidelines in most countries permit disclosure of information without consent if required by law (e.g. court order) or for the protection of the patient or others – despite the impossibility of predicting either homicide or suicide. As a result, while guidelines on breaching confidentiality without consent might well be useful in certain, limited circumstances, it is extremely difficult to determine when to do so, given difficulties assessing risk. There are three possible responses to this situation. The first is never to breach confidentiality due to apparent risk, on the basis that the negative consequences of such an action (i.e. reduced privacy) are certain, while the benefits (i.e. possibly preventing adverse events) are uncertain. The second option is to do our best to predict risk using our imperfect prediction tools; breach confidentiality when risk appears to exceed a certain (ill-defined) threshold; and simply pay a price in terms of reduced privacy. This is the chosen option in most jurisdictions. The third option is to reduce or avoid the dilemma by reducing the amount of privacy afforded to patients in the first instance, by, for example, creating a mandatory requirement for the involvement of third parties (e.g. family) in mental health care from the outset, even when there are no particular risks identified and even when the patient does not consent to this. This option was examined with care in Ireland in 2015 and was not adopted, in favour of the second option, according considerable weight to the right to privacy. Ultimately, however, while human rights form an essential bedrock for this discussion, the vast majority of human needs are fulfilled in ways other than claiming rights (e.g. through societal relations, charity, or political, rather than judicial, allocation of resources). The human need to connect with others and to share has a complex relationship with the need for confidentiality and privacy; further philosophical reflection on these two concepts – which are not necessarily the opposites they might appear at first sight – would help clarify these issues in the complex, important setting of involuntary mental health care. La restriction de la liberté dans le but d'un traitement psychiatrique soulève des questions pratiques, éthiques et philosophiques relatives à la vie privée et à la confidentialité. En conséquence, la question de la confidentialité dans les soins de santé mentale est un sujet d'intérêt de longue date. Les défis sont à la fois médicaux, juridiques, éthiques et philosophiques. En 1991, l'Organisation des Nations Unies (ONU) a mis fortement l'accent sur la confidentialité et le respect de la vie privée, accent qui a été réaffirmé dans le « Répertoire des ressources sur la santé mentale, droits de l'homme et de la législation » de l'Organisation mondiale de la Santé en 2005. En 2006, la « Convention relative aux droits des personnes handicapées » de l'ONU établit qu'« aucune personne handicapée [ce qui comprend au moins certaines personnes atteintes de maladie mentale], indépendamment de son lieu de résidence, ne doit être soumise aux arbitraires ou aux ingérences illégales dans sa vie privée, sa famille, son domicile ou sa correspondance, ou autres types de communication, ni d'atteintes illégales à son honneur et à sa réputation » (article 22). Le Conseil de l'Europe « Convention pour la protection des droits de l'homme et des libertés fondamentales » (« Convention européenne des droits de l'homme » [CEDH]) (1950) énonce également un « droit au respect de la vie privée et familiale », précisant que « chacun a le droit au respect de sa vie privée et familiale, de son domicile et de sa correspondance » (article 8). Dans le cadre des soins de santé mentale involontaires, cependant, il est évident que ce droit, comme le droit à la liberté, est un droit qualifié. Un certain nombre des cas britanniques importants, ou des cas devant la Cour européenne des droits de l'homme, ont exploré ce « droit au respect de la vie privée et familiale ». La CEDH, en fin de compte, a démontré que l'ingérence dans ce droit peut être admissible, si elle est proportionnée, prévisible et en conformité aux codes de pratique pertinents (autant que possible), et clairement justifiée, pour les raisons exposées logiquement à l'époque. Bien que ces jugements aident considérablement à l'interprétation des normes internationales des droits de l'homme et les lois nationales, il reste que la pratique de la psychiatrie est également façonnée par de nombreux facteurs autres que le droit. Le travail clinique quotidien présente continuellement des dilemmes qui ne sont pas couverts de manière adéquate par la loi et exigent des solutions fondées sur des principes généraux de bonne pratique médicale et éthique. Dans ce contexte, les lignes directrices éthiques médicales formelles dans la plupart des pays autorisent la divulgation de renseignements, sans le consentement requis par la loi (ordonnance du tribunal par exemple) pour la protection du patient ou d'autres – en dépit de l'impossibilité de prévoir l'homicide ou le suicide. En conséquence, alors que les lignes directrices sur la violation de la confidentialité sans le consentement pourraient bien être utiles dans certaines circonstances limitées, il est extrêmement difficile de déterminer quand le faire, compte tenu de l'évaluation des risques. Il y a trois réponses possibles à cette situation. La première est de ne jamais violer la confidentialité en raison du risque apparent, sur la base que les conséquences négatives d'une telle action (à savoir atteinte à la vie privée) sont certaines, alors que les avantages (à savoir éventuellement prévenir des événements indésirables) sont incertains. La deuxième option est de faire de notre mieux pour prédire le risque, d'utiliser nos outils imparfaits de prédiction, de violer la confidentialité lorsque le risque semble dépasser un certain seuil (mal défini) et simplement payer un prix en termes de vie privée réduite. C'est l'option choisie dans la plupart des juridictions. La troisième option est de réduire ou d'éviter le dilemme en réduisant la quantité de la vie privée accordée aux patients en premier lieu, par exemple, en rendant obligatoire la participation de tiers (famille) dans les soins de santé mentale dès le départ, même quand il n'y a pas de risques particuliers identifiés et même lorsque le patient ne consent pas à cela. Cette option a été examinée avec soin en Irlande en 2015 et n'a pas été adoptée, on a préféré donner un poids considérable à la vie privée. En fin de compte, cependant, alors que les droits humains constituent un socle essentiel de cette discussion, la grande majorité des besoins humains sont satisfaits par des moyens autres que la revendication des droits (par exemple par l'allocation des ressources selon le biais des relations sociales, associatives, ou politiques, plutôt que par des relations organisées par la justice). Le besoin humain de se connecter avec les autres et de partager a une relation complexe avec la nécessité de la confidentialité et la protection de la vie privée ; approfondir la réflexion philosophique sur ces deux concepts – qui ne sont pas nécessairement opposés bien qu'ils pourraient l'apparaître à première vue – aiderait à clarifier ces questions dans le cadre important et complexe de soins de santé mentale involontaire.

Guaranteed by the Constitution of Ukraine and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the right to respect for private and family life for those sentenced to life imprisonment, in terms of its implementation and scope, differs from this right for free individuals. But it is undeniable that those sentenced to life imprisonment are not deprived of this right in full. This is consistently emphasized in its practice by the European Court of Human Rights. In addition to private and family life being a natural need of every individual, its realization, particularly in forms such as maintaining and supporting connections with the outside world, is a means of re-socialization for individuals undergoing punishment in the form of life imprisonment. The benchmark for the development of Ukrainian legislation and law enforcement practice is the practice of the European Court of Human Rights. Therefore, the legal positions of the European Court of Human Rights regarding the right to respect for private and family life for those sentenced to life imprisonment should be studied and generalized. The precondition for the further development of any scientific direction is the comprehension of what has already been done by previous researchers. The conducted research has shown that Ukrainian scientific literature has addressed the legal positions of the European Court of Human Rights regarding various aspects of the right to respect for the private and family life of prisoners, broadly understood (including those in custody, sentenced to a certain term of imprisonment, and those sentenced to life imprisonment): 1) the conclusion that the restriction of the right to respect for private and family life for persons deprived of liberty, provided it is lawful, is not incompatible with the Convention; 2) the conditions/criteria for the legality of such restriction, implemented by national authorities; 3) the systematic identification of the main types of violations of the right to respect for family life recorded in the decisions of the European Court of Human Rights regarding convicted persons and persons in custody; 4) special protection of correspondence between an inmate and their lawyer; 5) differentiation of the spheres of application of Article 8 with other articles of the Convention, primarily Article 3; 6) determination of the main trend in the practice of the European Court of Human Rights «in the penitentiary sphere and in the criminal justice system as a whole,» which consists of constantly raising the standards of human rights by the Court; 7) ignoring the need for an individual approach in applying restrictions on the rights of persons deprived of liberty. The analysis of the existing body of scientific literature shows that existing studies are mainly based on the analysis of the European Court of Human Rights practice regarding foreign states and, with one exception, do not distinguish the legal status of those sentenced to life imprisonment among other deprived individuals. Since the publication of the analyzed monographs, 9–10 years have passed. During this time, the European Court of Human Rights has developed a significant body of practice regarding Ukraine, taking into account the Ukrainian context. Therefore, the analysis of the European Court of Human Rights decisions specifically regarding Ukraine should be a priority. Additionally, they should be analyzed in full. Such an analysis will allow, in conjunction with demonstrating the Convention’s standards regarding the right of those sentenced to life imprisonment to respect for their private and family life, to show the systematic and partial problems in this area identified by the European Court of Human Rights in its practice regarding Ukraine.

This article is devoted to clarify the significance of the advisory opinions of the European Court of Human Rights as a recently improved institution. Thus, according to Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, the highest judicial institutions of the High Contracting Party, as defined in accordance with Art. 10 may apply to the Court for advisory opinions on matters of principle concerning the interpretation or application of the rights and freedoms defined by the Convention or its protocols. Considering the fact that only two advisory opinions on the appeal of the member states of the Council of Europe have been published on the official website of the court, this topic is a new subject for research and requires a systematic study. Allowing states to seek advisory opinions was driven by the need to ease the burden on the European Court of Human Rights. However, given the novelty of the improved institute, this statement is still controversial. The article offers its own conclusions regarding the significance of the advisory opinions in the activities of the European Court, provides a view on the legal nature of this legal institution in the internal legal order of Ukraine. This was achieved by defining the essence of such a mechanism, analyzing primary sources from the official website of the court, statistical data on the functioning of the institution, and generalizing national legislation to determine the legal nature. Thus, although Ukraine has ratified Protocol No. 16, however, the legal status of such advisory opinions has not been determined. In this connection, it is proposed to amend a number of legislative acts, in particular, to article 17 of the Law of Ukraine "On the implementation and application of the practice of the European Court of Human Rights", which should be supplemented with the rule on the legal force of the advisory opinion of the European Court of Human Rights. According to the general importance of such an institution, it seems reasonable to hope for a decrease in the number of decisions that would contradict the practice of the European Court of Human Rights, and, accordingly, a decrease in the grounds for filing applications.

The Constitution of the Russian Federation enshrines one of the important postulates on the formation of the rule of law and civil society: a person and his rights and freedoms are of the highest value. In the modern period of development of information technologies, mankind entered into active communication relations through the global information and telecommunication network Internet, which in turn sharply raised the issue of the need to ensure effective protection of human and civil rights and freedoms in the process of interaction through the Internet, while maintaining a high level of guarantees for the realization of such rights and freedoms, as required by the fundamental international legal acts. The Russian Federation also did not stand aside from the above processes and was forced to take measures to protect the rights and freedoms of its citizens on the Internet, which, however, often boiled down to the introduction of new prohibitions and restrictions on such rights and freedoms. The authors of this article have made an attempt, taking into account the practice of the European Court of Human Rights and the Constitutional Court of the Russian Federation, to indicate the main directions for improving domestic federal legislation, in order to reflect in it the principle of the need to find a balance between the free implementation and protection of human and civil rights and freedoms in information and telecommunication network Internet. So that the actual problems of the realization of human rights and freedoms, due to the peculiarities of their implementation on the Internet, necessarily require the development of the most effective mechanisms for their protection in the new conditions of implementation, and not a complete rejection of the implementation of such rights and freedoms under the pretext of protecting them.

The article examines the progress towards equality in the practice of the ECtHR and its significant impact on the partnership agreement in de facto alliances. It has been established that over the last thirty-five years, the approaches of the European Court of Human Rights to the issue of the right of same-sex partners to family life and its formal recognition have undergone significant changes. It was found that the issue of discrimination was the subject of a number of cases concerning various rights of homosexual unions.
 It is substantiated that in the aspect of the right to formal recognition of same-sex partnerships by the state, the decision of the European Court of Human Rights in the case “Oliari and others v. Italy ». It was found that despite many years of case law of the European Court of Human Rights and the provisions of Council Regulation № 2016/1104, not all EU countries have provided legal certainty for same-sex couples, even in the form of civil partnerships (namely, Slovakia, Poland, Romania, Bulgaria, Latvia and Lithuania).
 The French experience of regulating the procedure for concluding, essential conditions of a partnership agreement, as well as the procedure for its termination is studied.
 It is substantiated that taking into account the European integration processes in Ukraine, reforming its private law according to European standards, our state, given the principle of equality and positive obligations under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms should guarantee partners in de facto unions sex legal certainty. In our opinion, it is optimal to amend the Central Committee of Ukraine and grant the right to conclude civil partnership agreements to persons regardless of the article. At the same time, the IC of Ukraine must maintain a heteronomous approach, ie guarantee the right to marry persons of the opposite sex, which fully complies with Art. 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
 Given that a partnership agreement can be an effective legal regulator of relations between individuals in de facto unions, it is worth borrowing the positive experience of France in improving Ukrainian legislation.

The principle of non-refoulement provided for by Article 33 of the Geneva Convention constitutes a principle of international law with a significant role in the protection of human rights. This principle has been confirmed by the European Court of Human Rights, which has affirmed the state's responsibility for returning an asylum-seeker to a country where he risks being subjected to inhuman and degrading treatment or torture, in breach of Article 3 of the European Convention on Human Rights. Considering this reasoning, in the case of Hirsi Jamaa and others v. Italy, the European Court of Human Rights found the Italian State responsible for violating Article 4 of Protocol No. 4 for the collective refoulement of migrants without a procedure for assessing their individual situation in a state where they could face inhuman and degrading treatment, as well as for violating Article 13 of the European Convention on Human Rights, as the applicants had been denied the opportunity to appeal before the expulsion measure was carried out. Recently, the European Court of Human Rights' orientation has changed since, in the case of N.D. and N.T. v. Spain, the Court excluded the violation of both Article 4 of the 4th Protocol and Article 13 of the European Convention on Human Rights, stating that the collective rejections were due to the “applicants' own conduct”. This decision entails many perplexities regarding the protection of human rights.
 
 Received: 24 January 2022 / Accepted: 19 March 2022 / Published: 5 May 2022