CONSIDERING THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS WHEN APPLYING THE STANDARDS OF CRIMINAL LAW

Abstract

The article clarifies the question of the source of the practice of the European Court of Human Rights for the criminal law of Ukraine, and also defines the peculiarities of taking into account the legal positions of the Court of the Council of Europe when applying crim-inal law norms. It has been established that in legal doctrine there is still a debate about considering the practice of the European Court of Human Rights as a source of criminal law, since it is considered either as a part of national legislation, or as a judicial precedent, or as an additional basis for criminal-law qualification. It is proved that the source of crimi-nal law is not the practice of the Court of the Council of Europe itself, but the legal positions of the European Court of Human Rights, which is a structural part of its decisions and the result of legal, delegated and casual interpretation of the norms of the Convention. It is claimed that when applying the norms of the criminal law of Ukraine, the legal positions of the European Court of Human Rights formulated by it in decisions against Ukraine are of primary importance. An appeal to the decisions of the Strasbourg Court against other states participating in the Convention is justified only if there is no relevant legal position in the decisions against Ukraine regarding the subject of consideration. It is emphasized that in the event of a conflict between the legal positions of the Constitutional Court of Ukraine and the European Court of Human Rights, the subject of the application of the norms of criminal law should, first of all, use the legal conclusions of the Court of the Council of Europe. Taking into account the practice of the European Court of Human Rights when ap-plying the norms of criminal law, it is proposed to understand the legally significant behav-ior of the subjects of the application of criminal law norms, which ensures their awareness of the importance of the results of the legal interpretation activity of the Court of the Council of Europe and has as a consequence the observance and implementation of the prescriptions by the specified subjects Convention on the Protection of Human Rights and Fundamental Freedoms by taking into account the relevant conclusions of the Strasbourg Court.