Zastrzeżenia do Europejskiej Konwencji o Ochronie Praw Człowieka i Podstawowych Wolności

The first part of this article presents Article 57 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and other reservation clauses (in protocols to the Convention) and discusses the characteristics of a system of reservations established by the ECHR and its Protocols. The second and third part analyse and critically appraise states’ practice concerning the formulation of reservations, and objections to other states’ reservations/declarations. The latter were formulated only in respect to some reservations formulated to the Protocol No. 1 to the ECHR. Before concluding with a general assessment of how this system works and what was its impact on other treaty regimes and on the general discussion on reservations to treaties, the role of the European Court of Human Rights (and the Commission before the entry into force of the Protocol No. 11) in the context of reservations is also discussed.

Practice of applying international principles in private law relations

National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations

THE PROHIBITION OF TORTURE, CRUEL OR DEGRADING TREATMENT OR PUNISHMENT IN CLOSED INSTITUTIONS

In the paper “The prohibition of torture and other cruel, inhuman or degrading punishment in closed Institutions” the author has examined the obxervasnce of persons’ in detention, custody or imprisonment human rights in the European regional acts and national instruments as well as the provision of health care for detainees and convicted persons alike.All basic human rights’ documents, namely: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the United Nations and the European Convention for the Protection of Human Rights and Fundamental Freedoms state that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, degrading his or her human dignity”. All persons who have been punished, regardless of the crimes for which they were convicted, have the right to humane treatment and respect for their personality. No actions of people, whatever they may be, justify the inhuman treatment of them or the humiliation of their personality.

Consumption needs and Quality of Life: Austrian Economics and the causes of migration

This paper re-introduces the view on migration causes by the Austrian School of Economics. Austrian economics has not earned its fame in the field of migration, but rather on advocating libertarian economics. Nonetheless Mises outlined a migration model, which can be understood by adding some clarifications by Hayek. Given that the institutional barriers to migration raised by the state are removed, the interplay between market wages, standard wages, attachment component and cost component will determine the migration. While the attachment component relates to fundamental freedoms and to what is referred to as quality-of-life aspects today, the cost component relates to subjective consumption needs. Hitherto unexplored, this model offers new insights to the complex interplay between economic and sociological aspects determining migration drivers.

Progress towards equality in the practice of the ECTHR and the partnership agreement in de facto alliances

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.

Gaps, conflicts and contradictions regarding measures to ensure the right to a fair trial of the convention for the protection of human rights and fundamental freedoms

The first paragraph of Article 6 states that the right to a fair trial is when everyone has the right to a fair and impartial hearing in a court of law within a reasonable time, independently of the law governing the dispute over his rights and obligations. both civil and other (criminal, administrative) nature and the establishment of the accusation against her. The court decision must be made public, but the press and the public may not be allowed in the courtroom during the entire time the case is heard in court or only part of the hearing in the interests of a democratic society, namely morality, public order, national security, and this is required by the interests of the juvenile or the protection of the privacy of individuals, or, if the Court has found the measure necessary, when, in special circumstances, the publicity of the proceedings may be prejudicial to the interests of justice.

Legal Grounds for Restrictions of Human Rights in the European Court of Human Rights Case-Law

This article is devoted to the study of the legal grounds for restrictions of human rights in the ECtHR’s case-law. The study stipulates that the concept of generations of human rights, based on the historical progress of ensuring human rights and fundamental freedoms, is a set of rights that require the proper protection and will constantly shift towards large-scale expansion, taking into account changes in society and the achievements of humanity. The study notes that even though at the end of the 20th century, the idea of human rights’ division into three generations (civil and political; social, economic and cultural; collective rights) was proposed in the science of international law, nowadays, it is difficult to clearly attribute certain rights to these categories. The research states that the division of rights into generations is convenient, but it should be noted that the concept of three generations of human rights is based on the historical progress of ensuring human rights and fundamental freedoms. Therefore, the set of rights that require protection will constantly change. The article highlights a few restrictions on human rights and freedoms, mainly concerning the first and second generations. The study determines that the specifics of restrictions of fundamental human rights are directly related to the difference between absolute and relative rights. The ECtHR explains that the objectives of human rights restrictions are substantially expanded and introduced in order to: maintain the state and public safety or economic well-being of the country; prevent riots or crimes; protect health or morals; ensure the rights and freedoms of others; protect the national security, territorial integrity; prevent of disclosure of confidential information; maintain the authority and impartiality of judicial authorities.

Conventional and constitutional regulations of lawful detention of a person without a court decision: criminal procedure aspect

The article compares the requirements for the lawful application of detention without a court decision as a criminal procedure established in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms and in the second sentence of Article 29 part 3 of the Constitution of Ukraine. In particular, the content of the concept of "detention" of a person is studied, the list of subjects who have the right to detain a person without a court decision and the legal content and list of legitimate grounds for detention of a person without a court decision as a criminal procedure are studied and compared. Conventional, constitutional and criminal-procedural norms are also studied, as well as the necessity of mandatory further judicial review of the legality of the detention of a person, including the terms of such review. Based on a detailed analysis of these provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitution of Ukraine, relevant decisions of the European Court of Human Rights and the Criminal Procedure Code of Ukraine, it is established that the grounds for the detention of a person by a general entity, defined by paragraph 2 of Article 207 of the Criminal Procedure Code of Ukraine, and a special entity, defined by subparagraphs 1 and 2 (except subparagraph 3) of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine, in general, correspond to the grounds for lawful detention of a person enshrined in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, it cannot be qualified as unlawful interference with the human right to liberty and security of person. At the same time, proposals are formulated to make changes and additions to subparagraph 3 of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine. It is also proved that the provisions of paragraph 2 of Article 12 and Articles 209 and 211 of the Criminal Procedure Code of Ukraine are critical provisions of the current legislation of Ukraine regarding the lawful application of detention of a person without a court decision. These provisions actually eliminate some shortcomings and establish the necessary legal and procedural grounds for the clarified application of the provision of the second sentence of part 3 of Article 29 of the Constitution of Ukraine, in accordance with the provisions of paragraph 3 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of their application developed by the European Court of Human Rights.

Countering the corporate tax avoidance in the Court of Justice of the European Union practice

The article contains the analysis of extensive CJEU practice regarding the issues of countering corporate tax avoidance, and legal framework, mostly the provisions of the Treaty on the Functioning of the European Union and Directives.The purpose of this paper is to conduct a comprehensive research of the issues of countering the corporate tax avoidance in the CJEU practice. For this reason the authors set the following tasks: (1) to consider the concept of abuse of law, developed by the CJEU practice, with respect to corporate tax avoidance; (2) to identify the interaction between national anti-avoidance rules and fundamental freedoms of the internal market as established by the CJEU practice; (3) to study the CJEU practice concerning the implementation of tax directives and the application of anti-avoidance measures; (4) to identify the main features of the Directives "Anti-Tax Avoidance Directive" (ATAD) in terms of their potential impact on the development of the CJEU practice.The research methodology includes the application of both general methods of formal logic (including analysis, synthesis, deduction and induction) and special legal methodology (formal legal and comparative legal methods).The main results of the study. The CJEU has repeatedly considered the problem of conflict of national anti-avoidance rules with the fundamental freedoms of the EU internal market. The conflict between these rules is resolved in different ways depending on the type of antiavoidance rules: (1) national rules aimed at countering the abuse of law, and (2) national rules developed to counter tax avoidance, which are strictly applied according to formal criteria, without any requirement to prove abuse of law in a particular situation. The application of national anti-avoidance rules may provide for the exemptions from the regime of fundamental freedoms of the internal market. Where national anti-avoidance rules are not aimed at combating wholly artificial arrangements, but are applied mechanically, due to formal criteria, such rules should apply subject to the legal regime of fundamental freedoms. The CJEU held that the concept of beneficial owner should be applied not only to interest and royalties, but also to the distribution of profits, despite the fact that the provisions of the Parent-Subsidiary Directive do not contain such a concept. EU law prohibits the granting of state aid. National anti-avoidance rules and law enforcement practice may be subject to such a prohibition in cases where they create positive discrimination.Conclusions. When implementing the provisions of the ATAD 1-2, the EU Member States committed numerous breaches of the EU law. It therefore can be expected that the CJEU practice regarding the proper implementation of the Directives may appear in the near future. The general prohibition of abuse of EU law shall apply, even in cases where the EU Member State has not implemented the anti-avoidance mechanisms of tax directives into its national law. The general prohibition of abuse of EU law shall apply despite the principle of legal certainty, which precludes directives from being able by themselves to create obligations for individuals, so the directives cannot be relied upon per se by the Member State as against individuals. Sections 1−2 were contributed by S.G. Sokolova, 3−4.1 by D.M. Osina (section 4.1 in collaboration with K.A. Tasalov), 4.1−7 by K.A. Tasalov (section 4.1 in collaboration with D.M. Osina).