This thesis is dedicated to the comprehensive research and analysis of the legal nature of and application of the “margin of appreciation” concept in international justice and national judicial practice of European countries, including Ukraine. It describes and analyzes the origins of the concept and its historical development, in particular, the origin of the term “margin of appreciation” (discretion of a country), the definition of the term, the development of the “margin of appreciation” concept in international doctrine in the works of scientists, and its practical formation in the judicial practice of some countries, especially Germany and France which have made a significant contribution to the development of the idea of discretion. The author studies application of the concept in practice by international judicial institutions, which mainly support an approach embodied in the “margin of appreciation”. It is explained that the origins of the concept at the international level can be found in the UN Charter. The essence of a legal nature of the “margin of appreciation” is specified in the case-law of the European Court of Human Rights, including definition of the concept, its characteristics, the criteria for its application, its value, scope, and margins of discretion of countries. The author argued interconnection between the “margin of appreciation” concept in the case-law of the European Court of Human Rights and the main principles of the Court’s work such as autonomy, subsidiarity, evolutionary interpretation of the 1950 European Convention on Human Rights, and the effective protection of rights and freedoms. The author summarizes the application of the “margin of appreciation” concept with regard to such articles as Articles 5-6, 8-11, 14, and 15 of the Convention, Articles 1-3 of the First Protocol thereto, and the possibility of its application to Articles 2 and 3 of the Convention. The author analyzes manifestations of the concept in the provisions of Protocol No. 14 to the Convention, and the Convention itself, as amended by the Protocol, and the concept’s role concerning Protocol Nos. 15 and 16. The author concludes that the “margin of appreciation” concept is formed mainly by the European Court of Human Rights through its interpretation of the Convention and the Protocols thereto, and through delivery of its precedents. It is specified which legal relationships are subject to discretion of the countries, and which specific legal phenomena and collisions can be better solved at the national level than at the level of international judicial agencies. The author suggests a definition of the “nearest court jurisdiction”. Recommendations are provided for introducing the “margin of appreciation” concept in Ukraine for the purpose of more effective protection of freedoms and human rights. The peculiarities of the national discretion application is analyzed through the practice of few European countries. The author studies application of discretion by the domestic courts of Ukraine and some European countries in decision-making and in executing the decisions of the European Court of Human Rights in the cases versus them and versus other countries (erga omnes effect). The author defines the role of European control by the European Court of Human Rights over countries’ discretion in their decision-making. The author concludes that the countries’ national discretion, regarding methods and ways to restore a violated right and prevent the circumstances which caused it, is limited, since implementation of their internal functions must comply with the Conventional guarantees. The author suggests how the “margin of appreciation” concept can be implemented in Ukraine for the purpose of the more effective protection of human rights.
