The Aarhus convention in the nuclear sector—right to information versus nonproliferation?

The study aimed to analyse how the Ukrainian legal system implements the decisions of the European Court of Human Rights, as well as to identify problems and prospects for improving this process. The article used methods of legal analysis of the decisions of the European Court of Human Rights, comparison of national legislation with the European Convention on Human Rights, analysis of the statistics of the European Court of Human Rights, research on the implementation of European Court of Human Rights decisions at the national level, hermeneutics to identify terminological gaps, analysis of the implementation of European standards in the national legal system, and deduction to identify key issues in cases against Ukraine. An analysis of the decisions of the European Court of Human Rights revealed numerous systemic human rights violations in Ukraine, particularly in the areas of conditions of detention, unlawful arrests and lengthy court proceedings. Problems with non-enforcement of court decisions and violations of the rights to liberty and dignity have been confirmed by numerous cases, such as Gongadze v. Ukraine and Kharchenko v. Ukraine. Amendments to the Criminal Code of Ukraine following the decisions of the European Court of Human Rights, in particular the limitation of the term of pre-trial detention, have reduced the number of cases of prolonged detention The study aimed to analyse how the Ukrainian legal system implements the decisions of the European Court of Human Rights, as well as to identify problems and prospects for improving this process. The article used methods of legal analysis of the decisions of the European Court of Human Rights, comparison of national legislation with the European Convention on Human Rights, analysis of the statistics of the European Court of Human Rights, research on the implementation of European Court of Human Rights decisions at the national level, hermeneutics to identify terminological gaps, analysis of the implementation of European standards in the national legal system, and deduction to identify key issues in cases against Ukraine. An analysis of the decisions of the European Court of Human Rights revealed numerous systemic human rights violations in Ukraine, particularly in the areas of conditions of detention, unlawful arrests and lengthy court proceedings. Problems with non-enforcement of court decisions and violations of the rights to liberty and dignity have been confirmed by numerous cases, such as Gongadze v. Ukraine and Kharchenko v. Ukraine. Amendments to the Criminal Code of Ukraine following the decisions of the European Court of Human Rights, in particular the limitation of the term of pre-trial detention, have reduced the number of cases of prolonged detention

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».

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.

Article 5 of the European Convention on Human Rights sets out the guarantees of the right to liberty and security. During criminal proceedings, this fundamental human right may be subject to restriction. Therefore, both legislation and law enforcement practice must ensure fair procedures for such restrictions. This study aimed to provide a comprehensive analysis, systematisation, and explanation of the Convention standards that guarantee the lawfulness of restrictions on the right to liberty and security within criminal proceedings. It also aimed to identify the grounds for the application of custodial preventive measures, thereby helping to avoid errors in legal practice and contributing to the development of a uniform and consistent investigative and judicial approach, including under conditions of martial law. The principal methods of inquiry include axiological, formal-legal, logical-legal, systemic-structural, comparative-legal analysis, and generalisation. These methods have made it possible to describe the results and substantiate the conclusions reached. The study was conducted concerning the case law of the European Court of Human Rights and the national criminal procedural legislation. It has been established that, according to the standards developed in the case law of the European Court of Human Rights, the threshold for suspicion does not require the same degree of certainty as a formal charge. A reasonable suspicion implies the existence of sufficient factual information that would enable an external observer (the investigating judge) to conclude, with a high degree of probability, that the individual whose right to liberty and security is to be restricted has committed the alleged offence. It was argued that the European Court of Human Rights adheres to a substantive rather than a formal conception of a charge. Based on an analysis of the legal regulation of the grounds for applying preventive measures, it has been demonstrated that the investigating judge will, in each specific case, determine whether the factual data are sufficient to establish a reasonable suspicion and whether the associated risks are justified. The practical value of this study lies in the possibility of applying the established standards of the European Court of Human Rights when deciding on the imposition of custodial preventive measures. This would help ensure uniformity in legal practice and promote the rule of law in Ukraine

Przedmiot badań: Prezentowane opracowanie dotyczy użycia siły fizycznej przez Policję w świetle przepisów ustawy z dnia 24 maja 2013 r. o środkach przymusu bezpośredniego i broni palnej. Ten środek przymusu bezpośredniego może być bardzo skuteczny. Niekiedy jest wręcz niezbędny podczas interwencji policyjnych. W przypadku bezpodstawnego bądź nieadekwatnego zastosowania może on jednak prowadzić do naruszenia wolności i praw osób, wobec których jest używany. W praktyce pojawiają się przypadki przekroczenia granic stosowania siły fizycznej. Niniejsze opracowanie stanowi analizę przepisów wymienionej wyżej ustawy oraz orzecznictwa Europejskiego Trybunału Praw Człowieka w zakresie dopuszczalności użycia siły fizycznej przez Policję. Cel badawczy: W artykule podjęto próbę odpowiedzi na pytanie, czy rozwiązania prawne zawarte w ustawie o środkach przymusu bezpośredniego i broni palnej i dotyczące użycia siły fizycznej są wystarczające, a jeżeli nie, to dlaczego i czy istnieją zasady, które ułatwiłyby policjantom korzystanie z tego środka w granicach prawa oraz czy mogą temu służyć standardy wypracowane przez Europejski Trybunał Praw Człowieka. Metoda badawcza: Badania opierają się na dogmatyczno-prawnej analizie przepisów ustawy z dnia 24 maja 2013 r. o środkach przymusu bezpośredniego i broni palnej oraz wypowiedzi doktryny i orzecznictwa Europejskiego Trybunału Praw Człowieka. Wyniki: Przepisy ustawy o środkach przymusu bezpośredniego i broni palnej oraz dotychczasowe analizy dotyczące stosowania siły fizycznej nie są rozległe i są niewystarczające do określenia standardów jej używania przez Policję. Brak jest wytycznych, które ułatwiłyby policjantom przestrzeganie granic działania przy użyciu siły fizycznej. Pewną pomoc w tym zakresie mogą stanowić zasady wypracowane przez Europejski Trybunał Praw Człowieka.

The article is devoted to the problem of establishing legal positions in the case law of the European Court of Human Rights aimed at resolving the issue of the possibility of criminal prosecution of Ukrainian citizens who refused to fulfill their duty to defend the Fatherland, independence and territorial integrity due to religious beliefs. The case law of the European Court of Human Rights addresses the problem of a legal conflict between a person’s obligation to perform military service and his or her religious beliefs in case of refusal to perform military service. The main criterion used by the Court to establish that the state has violated Article 9 of the Convention (freedom of thought, conscience and religion) is the existence of a grave and insurmountable conflict between the obligation to perform military service and a person’s conscience or sincere and deeply held beliefs, whether religious or otherwise. Violation of Art. 9 of the Convention (freedom of thought, conscience and religion) and/or Art. 14 of the Convention (prohibition of discrimination) were found in the following cases: lack of possibility to perform alternative civilian service instead of military service (Bayatyan v. Armenia); conviction of the applicant for evasion of military service, his subsequent mobilization and demobilization with a documented diagnosis of adaptation disorders that arose during the military service (Feti Demirta§ v. Turkey) the absence of a real alternative civilian service, which, according to the legislation of the state, was actually part of the military structure (Teliatnikov v. Lithuania, Adyan and Others v. Armenia) the absence in the legal system of the state of an effective and accessible procedure that would allow pacifist applicants to find out whether they are entitled to use the status of a person who refused to perform military service (Savda v. Turkey, Tarhan v. Turkey); exemption from military service for clergymen of «recognized religious communities» rather than «registered» religious organizations, despite the similar nature of the functions performed by these organizations (Loffelmann v. Austria, Gutl v. Austria, Lang v. Austria).

The subject of this study is the right to respect for family life in the case law of the European Court of Human Rights. Today, this right plays a significant role, primarily due to the paramount position of the family in society. It is addressed both by the norms of domestic law (Articles 18 and 47 of the Constitution of the Republic of Poland) and by international law (Article 8 of the European Convention on Human Rights). In the present era — a time of significant social change — the obligation to respect family life constitutes one of the major challenges. In addition to the traditional model of the family, contemporary society is shaped by other forms of interpersonal relationships, based on emotional, economic, and other types of bonds. This raises the question of whether persons in such alternative relationships also create a “family life” and, consequently, whether they are entitled to the right to respect for family life. The rich body of case law of the European Court of Human Rights, concerning the interpretation of Article 8 of the European Convention on Human Rights, which addresses the right to respect for family life, is helpful in resolving these doubts. The aim of this study is to analyse the concepts of “family,” “family life,” and “respect for family life” in the context of international law, as well as the scope of the right to respect for family life in the case law of the ECtHR. The content of the publication is based primarily on the extensive jurisprudence of the ECtHR.

The article is devoted to a comprehensive analysis of the problems of ensuring proper medical care for persons deprived of liberty through the prism of international human rights protection standards and the case law of the European Court of Human Rights. It is substantiated that the quality and accessibility of medical care in penitentiary institutions constitute one of the key indicators of adherence to the rule of law, respect for human dignity, and the effectiveness of the state human rights protection system. Particular emphasis is placed on the heightened vulnerability of persons held in places of detention, given their complete dependence on state institutions in matters of health care. Based on an analysis of the judgments of the ECtHR, in particular in cases against Ukraine, the main criteria of “adequate medical care” in conditions of deprivation of liberty are identified. These include timely access to a physician, proper diagnosis, continuity and effectiveness of treatment, as well as the compatibility of detention conditions with prisoners’ medical needs. It is demonstrated that the formal provision of medical procedures without achieving a real clinical outcome does not meet the standards of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The article analyzes Ukrainian national legislation in the field of medical care for convicted persons and establishes that, despite its formal compliance with international standards, the practice of its implementation remains problematic. Systemic shortcomings of penitentiary medicine are identified, including the institutional dependence of medical staff on prison administrations, insufficient funding and shortages of specialized personnel, outdated material and technical resources, and the ineffectiveness of national legal remedies. On the basis of generalizing the case law of the European Court of Human Rights and international recommendations, the article proposes key directions for improving the system of medical care for persons deprived of liberty. These include completing the integration of penitentiary medicine into the civilian health care system, ensuring the genuine implementation of the principle of equivalence of medical care, strengthening guarantees of the professional independence of physicians, and enhancing the role of judicial and non-judicial oversight. It is concluded that the implementation of these measures is a necessary condition for fulfilling Ukraine’s international obligations and reducing the number of human rights violations in places of detention. Keywords: medical care, penal institutions, human rights, deprivation of liberty, European Court of Human Rights, penitentiary medicine, health care, vulnerable groups, mental health, continuity of care, legal protection mechanisms, international standards, penitentiary system reform.

In international human rights law, the notion of due diligence concerns a qualifier of behaviour to realize human rights protection, including the protection against non-state actor interferences. However, the question remains what due diligence obligations of states in the context of non-state actor interferences exactly entail in international human rights law. The present article aims to address this matter by comparing case law of the European Court of Human Rights (ECtHR) with that of the Inter-American Court of Human Rights (IACtHR). Using a working model of due diligence that has been introduced in recent scholarly work, this article further explores this model and attempts to give further meaning to its two paradigms: ‘regulation’ and ‘risk management’. In that way, it maps out the relevant elements of this foundational concept that lies at the heart of human rights protection.

NGOs and Human Rights Courts and Compliance Bodies.- International Courts and Compliance Bodies: The Experience of Amnesty International.- The Experience of the AIRE Centre in Litigating before the European Court of Human Rights.- NGOs and the Inter-American Court of Human Rights.- NGOs before the European Court of Human Rights: Beyond Amicus Curiae Participation?.- The Role of NGOs before the United Nations Human Rights Committee.- Some Concluding Remarks on NGOs and the European Court of Human Rights.- NGOs and International Criminal Courts and Tribunals.- The Experience of No Peace Without Justice.- NGOs and the Activities of the Ad Hoc Criminal Tribunals for Former Yugoslavia and Rwanda.- NGOs and the Activities of the International Criminal Court.- NGOs and the East Timor Special Panels for Serious Crimes.- Some Concluding Remarks on the Role of NGOs in the ICC.- NGOs and International Environmental Disputes and Compliance Mechanisms.- The Experience of Greenpeace International.- NGOs and the Aarhus Convention.- The World Bank Inspection Panel: About Public Participation and Dispute Settlement.- NGOs in Non-Compliance Mechanisms under Multilateral Environmental Agreements: From Tolerance to Recognition?.- NGOs and Inter-State and European Disputes.- Non-Governmental Organizations and the International Court of Justice.- NGOs and Law of the Sea Disputes.- CIEL's Experience in WTO Dispute Settlement: Challenges and Complexities from a Practical Point of View.- NGOs and the WTO Dispute Settlement Mechanism.- The Accessibility of European Integration Courts from an NGO Perspective.- Concluding Remarks.- The Amicus Curiae in International Courts: Towards Common Procedural Approaches?.

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.

The article is devoted to determining the peculiarities of application of various types of measures in the mechanism of execution of judgments of the European Court of Human Rights in Ukraine.Based on the analysis of international legal acts, provisions of Ukrainian legislation and case law, the author describes the procedure for applying individual measures and general measures in the process of enforcement of judgments of the European Court of Human Rights in Ukraine. The author distinguishes the difference between the procedure for enforcement of judgments of the European Court of Human Rights and the procedure for enforcement of judgments of foreign courts or international commercial arbitrations in Ukraine.It is argued that the viewpoint in the scientific literature that judicial review is not the main means of individual influence in the mechanism of enforcement of judgments of the European Court of Human Rights does not in any way negate its importance in situations where restitutio in integrum is possible only in this way.The author concludes that measures to enforce a judgment of the European Court of Human Rights are comprehensive in nature and are aimed at the fullest possible restoration of the violated right, elimination of the negative consequences of such a violation and prevention of similar violations in the future.The . The author concludes that individual measures are best suited to a particular legal situation. They are implemented both by virtue of the direct effect of the judgment of the European Court of Human Rights on the territory of Ukraine (in terms of payment of compensation to the victim) and by adopting decisions of state authorities based on the judgment of the European Court of Human Rights in accordance with the established procedure. For example, by reviewing decisions of national courts in exceptional circumstances.The author concludes that general measures have a systemic impact on the legal system of the State, serve the purpose of bringing national legislation closer to European standards and have a preventive effect on preventing future violations of the rights protected by the judgment of the European Court of Human Rights, not only in respect of the person in whose favour the judgment of the European Court of Human Rights was delivered, but also in respect of any other citizens of the relevant State.

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 relevance of the study, given the law enforcement practice of the courts of Ukraine and the case law of the European Court of Human Rights, based on the coverage of standard decisions, lies in identifying some errors in the pre-trial investigation. Further, the study disclosed the issues related to the observance of human and civil rights and freedoms during the surveillance. The purpose of the study is to identify the main reasons for recognising the evidence obtained during covert investigative action as inadmissible in the course of the trial. The methodological basis of the study is a comparative legal method based on the evaluation approach, a formal legal (dogmatic) method, analysis and synthesis. The study highlights individual papers in the context of the issue under consideration, which allowed disclosing the content of each of the areas and tracing their relationship. Based on the review of judicial practice and decisions of the European Court of Human Rights, the main reasons for declaring evidence inadmissible are presented and substantiated. In addition, individual court decisions on non-compliance with constitutional human rights and freedoms during such a covert investigative (search) action as surveillance are summarised and characterised. It was proved and argued that authorised bodies that have the right to authorise surveillance must comply with the norms of the European Convention on Human Rights. It is determined in which cases the court may recognise evidence obtained during surveillance as admissible. The ultima ratio principle, which guarantees the observance of constitutional human and civil rights and freedoms during pre-trial investigations, is highlighted separately. A personal opinion on each of the analysed decisions is formulated, considering national and international legislation. The practical value lies in the fact that the results of the study allow the prosecution to avoid mistakes during the collection of evidence in criminal proceedings.

In this study, the author addresses the problem of the definition and structure of the right to religious autonomy. The object of the study was the content of the two manifestations of this right that the author identified: internal governance and doctrinal autonomy in the practice of the European Court of Human Rights. The aim of this article is to determine the main areas of protection of the right to religious autonomy of religious associations and the positive experience applicable in the Russian Federation. The author describes the role of the right to religious autonomy, which is an integral part of pluralism in a democratic society and, therefore, acts as a center for protection provided by freedom of conscience. The study is based on the theoretical material of the works of both Russian (P.V. Sergeev, Yu.E. Fedotova, M.O. Shakhov) and foreign (M.E. Chopko, M.F. Moses) researchers. The extensive law enforcement practice of the European Court of Human Rights and the regulations of the European Union are also used. The methodological basis of the study is dialectical, comparative legal, formal legal, and other methods. In particular, the use of the dialectical method helped to determine the content of the concept of the right to religious autonomy, to study the dynamics of the legal positions of the European Court of Human Rights regarding a “balanced approach” to protect the autonomy of the internal management of religious associations. The use of comparative legal and formal legal methods helped to identify correlations between the case-law of the European Court of Human Rights and acts adopted within the European Union. The use of the functional method made it possible to investigate the place and role of European institutions and the nature of their governing influence on the provision and protection of the right to religious autonomy to various religious associations, including those representing a religious minority. As a result, the author comes to the conclusion that religious autonomy in its two possible manifestations—internal governance and doctrinal autonomy—directly follows from the content of the powers of freedom of conscience. Both of the manifestations are protected by European regulations although such protection cannot be considered as absolute. On the one hand, the right to religious autonomy is an integral part of the external manifestation of religious beliefs; on the other, its universal protection will jeopardize the protection of the rights of others. Nevertheless, in a situation in which the governing influence of European states is limited and the enforcement practice of the European Court of Human Rights is not entirely consistent, it seems that European institutions are aware of the importance of the right to religious autonomy. Therefore, the authorities resolve problems associated with its implementation pragmatically, trying to balance it with other rights and legitimate interests.