Journal article Open Access
Roman I. Marusenko
In the article, the author analyzes the legal effect of the practice of the ECHR and its importance as a source of law.
Conclusions are presented in favor of understanding the practice of the ECHR as a generalized method and vector of interpretation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The necessity of differentiating the legal effect of the practice of the ECHR in decisions concerning Ukraine and other countries is argued. The role of the latter as sources of law is substantiated. The reverse side of such an undeniably effective approach is that the positions expressed by the Court may change. And this, in turn, affects the use of such positions in national practice. Especially taking into account the absence of translations of all relevant decisions to the language, that is used by national judges.
The author concludes that the practice of the ECHR as a source of law should be understood as the practice of understanding, interpreting and applying the rules of the Convention by the national courts.
The national court, on the basis of a judgment of the ECHR, which did not lead to the application of measures of an individual or general nature, may restore the violated rights only by the application of the rule of law principle and within the limits of its own competence as determined by the national procedural law. In general, the individual (compensation) and general (legislative changes) measures are used. At the same time, automatic loss of validity of the norms of the national legal acts as the consequence of the entry into force of the ECHR ruling, which confirms the violations of the rights, does not occur.