Формалізація та алгоритмізація як шляхи забезпечення правильного застосування практики Європейського суду з прав людини

Анотація

Referring to the Supreme Court of Ukraine Grand Chamber’s jurisprudence in administrative
cases the author suggests that domestic courts of Ukraine systematically apply the Convention
for the Protection of Human Rights and Fundamental Freedoms and the European Court
of Human Rights case-law in manner which is non-uniform, unmotivated, irrelevant and
erroneous in essence, which is incompatible with the rule of law dictating clear, foreseeable,
and adequately accessible national law to enable individuals to act in accordance with the
law. In particular, the author exemplifies the foregoing with Supreme Court of Ukraine Grand
Chamber’s judgments, in which European Court of Human Rights case-law was applied: in
cases concerning solely the two public administration bodies; in cases with no legal connection
with any conventional human right and fundamental freedom; without any meaningful attempt
to articulate conclusions or guidelines relating to specific way to use provisions of Convention
for the Protection of Human Rights and Fundamental Freedoms and the European Court of
Human Rights case-law in context of a particular case or in abstract and as well manner, in
which that is to be used by domestic courts in further cases. With a view to prevent such
occurrences the author maintains that there is a pressing need to formalize and algorithmize
ways of application of these sources of law. There are some best practices to serve as a starting
point for these rules such as the approach of Ukrainian courts to initially consider the case
bearing in mind national statutes and other legislation and, subsequently, assess whether the
way to solve the case determined by national law aligns with Convention for the Protection of
Human Rights and Fundamental Freedoms and the European Court of Human Rights case-law.