The work is devoted to study of theoretical and practical issues relating to the application of European Court of Human Rights case law in administrative legal proceedings, as well as to development of a suggestion on improving of legal standards with regard to the introduction of ECHR case law within the administrative justice of Ukraine.
The thesis identifies ways in which the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention, the European Convention on Human Rights - ECHR) and the case law of the European Court of Human Rights (hereinafter referred to as the Court, the ECHR) can be applied in administrative legal proceedings. It was found that this case law is appropriate to consider in interpreting of general provisions and principles of administrative legal proceedings. In addition, it was emphasized on the importance of applying the ECHR case law in interpreting certain articles of the Convention in resolving specific disputed legal relations in administrative legal proceedings.
With regard to the applicability of the Convention and the ECHR case law to the general provisions of administrative legal proceedings, it is proposed to identify three areas of such interaction, namely: 1) application of the relevant European standards in the interpretation of the provisions of p. 2, art. 2 of Code of Administrative Legal Proceedings of Ukraine; 2) application of ECHR case law in interpreting the principles of administrative legal proceedings; 3) application of ECHR case law to detail the fundamental categories set forth in the Code of Administrative Legal Proceedings of Ukraine, which are also interpreted by the Court as requirements for administration of justice.
The distinction between substantive and procedural aspects of the application in administrative legal proceedings of certain conventional human rights is reasoned. Substantive aspect means that administrative courts take into account the case law of the ECHR on certain substantive rights, such as the right to freedom of peaceful assembly and association (art. 11 of the Convention), the right to freedom of expression (art. 10 of the Convention), the right to respect for private and family life (art. 8 of the Convention). Procedural aspect is in the requirements for the process of administration of justice itself. In this context, it is a question of implementing in administrative legal proceedings the guarantees of the right to a fair trial provided for in article 6 of the Convention.
The conclusion on the importance of the ECHR case law for administrative legal proceedings is argued, which is that its application in resolving administrative cases contributes to ensuring the three pillars of fair trial: 1) procedural fairness, which means ensuring a fair trial; 2) formal fairness that ensures equal application of the law to different trial participants; 3) substantive fairness, which consists in making intrinsically fair court decisions.
Features of application by administrative courts of individual components of the ECHR case law relating to the right to a fair trial are studied. These include: 1) right of access to a court, 2) consideration of the case by a court established by law; 3) independence and impartiality of a court; 4) public hearing of a case; 5) consideration of a case within a reasonable time.
The proposal on the need for applying ECHR case law under art. 10 of the Convention in proceeding of administrative cases concerning the establishment of permissible limits for criticism of public officials regarding their professional activities, freedom of the press and access to information, which is of public importance, resolution of disputes with holders of public information, etc is reasoned.
It is proved that the administrative courts when considering cases in which judges (candidates for the post of judge) have filed applications for the illegality and annulment of the negative findings of the Public Integrity Council, must verify possible violations of freedom of expression in such situations and, accordingly, use in this category of administrative cases the jurisdiction of the ECHR from art. 10 of the Convention.
The impact of the Court’s legal positions in cases involving limitations on the exercise of the right to freedom of peaceful assembly or the removal of obstacles and the prohibition of interference with the exercise of the right to freedom of peaceful assembly is studied. It is proved that article 11 of the Convention imposes on the administrative authorities not only the duty not to interfere with the exercise of the right to freedom of peaceful assembly, but also certain positive obligations, that is, the facilitation of assemblies, meetings and other events at which citizens may freely express their views.
